Opinion 90-12


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


COUNTY TREASURER -- Powers and Duties (payment out of money paid into court)

CIVIL PRACTICE LAW AND RULES, §§2105, 2607: CPLR 2105, which authorizes copies of papers to be certified by an attorney, does not apply to court orders submitted to a county treasurer under CPLR 2607 for the payment out of moneys paid into court. CPLR 2607 requires a copy of the court order to be certified by the clerk of court.

You ask whether a county treasurer may pay out court funds upon being served with a copy of a court order, certified by an attorney, authorizing such payment. You state that the county currently requires the service of a copy of the court order certified by a court clerk.

Pursuant to CPLR 2607, the payment of money previously paid into court may generally be made only:

... upon order of the court directing payment to a specified person . . . . A certified copy of the order directing payment shall be delivered to the county treasurer or other custodian of the property . . . . Any other provision of law to the contrary notwithstanding, if an order directing payment by the county treasurer is made by the court, the copy of the order to be delivered to the county treasurer . . . as herein provided shall be certified by the clerk of the court to be a true copy of the original of such order on file in his office (emphasis supplied).

Article 21 of the CPLR, relating to court papers, however, provides:

Where a certified copy of a paper is required by law, an attorney admitted to practice in the courts of the state may certify that it has been compared by him with the original and found to be a true and complete copy. Such a certificate, when subscribed by such attorney, has the same effect as if made by a clerk. (CPLR 2105, emphasis supplied).

Therefore, it must be determined whether the provisions of CPLR 2105 permit the submission of an attorney-certified copy of a court order directing payment out of court despite the express language in CPLR 2607 requiring a copy certified by a court clerk. For the reasons set forth below, we believe that an attorney-certified copy is not permitted.

CPLR 2105 clearly authorizes an attorney's certification in those instances where a statute only requires that a document be certified. Where, however, a statute, such as CPLR 2607, expressly requires certification by the clerk of the court "any other provision of law to the contrary notwithstanding", the obvious meaning of the statute is that only a certification by the clerk of the court is permissible. Any other construction would render the express provisions of CPLR 2607 ineffective. It is a well settled rule of construction that every provision of a statute was intended for some useful purpose (Travelers' Ins. Co. v Louis Padula Co., 224 NY 397, reh den 225 NY 638; Anderson v Board of Education of City of Yonkers, 46 AD2d 360, 362 NYS2d 536, affd 38 NY2d 897, 382 NYS2d 750). Therefore, we conclude that CPLR 2105 has no application to orders submitted to the county treasurer under CPLR 2607, and that such orders must be certified by the clerk of the court (see 2A Weinstein, Korn and Miller, New York Civil Practice, §2607.03; see also, e.g., Surrogate's Court Procedure Act, §2222[1] and Abandoned Property Law, §1406[2] which were enacted after CPLR 2105 and which, like CPLR 2607, expressly require certification by the clerk of the court).

April 18, 1990
Lewis C. Kirschner, County Treasurer
County of Ulster