ARTICLE THIRD. Commission to take testimony. Sec. 2980. Commission to examine witness upon interrogatories. 2981. Id.; orally. 2982. When and how granted. 2983. Adjournment. 2984. Execution and return of commission, 2985. Receipt thereof by justice. 2986. When deposition evidence. Commission to examine § 2980. rogatories. witness проп inter Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice. From L. 1838, c. 243, § 2; L. 1847, c. 329. 2981. Id.; orally. If both parties expressly consent, a commission granted as prescribed in this article may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given. New. 2982. When and how granted. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, upon the application of either party, accompanied with proof, by affidavit, that six days' written notice of the application has been served upon the adverse party, either personally, or by service upon the attorney, who appeared for him before the justice. From L. 1838, c. 243, § 3. 2983. Adjournment. Where a commission is granted upon the application of the plaintiff, he is entitled to one or more adjournments of the trial, as may be necessary to procure the commission to be executed and returned; not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. From L. 1841, c. 138, § 1. 2984. Execution and return of commission. The commission must be executed and returned, as prescribed in section 901 of this act; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted. From L. 1838, c. 243, § 4. § 2985. Receipt thereof by justice. The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post-office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him, until the trial; but either party is entitled to inspect it on file. Id. § 2986. When deposition evidence. Sections 902 and 903 of this act apply to a commission, issued as prescribed in this article; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect specified in section 911 of this act. Id. § 2987. Powers of commissioners. Where the commission is executed within the State, the commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has, in ar action pending before him. From L. 1841, c. 138, 2. 858 TITLE V. Trial and its incidents. Sec. 2988. Effect of failure of defendant to appear. 2989. When justice to try issue. of fact. 2990. When jury trial may be demanded. 2991. Drawing Jurors. 2992. Venire in action between two towns, etc. 2994. Ballots; how prepared. 2995. Drawing jury. 2996. Jurors in default. 2997. New venire, etc. 2998. Juror's oath. 2999. Jury to hear proofs. 3000. Witness's oath. 3001. Witness refusing to be sworn, etc. Warrant thereupon. 3004. Ex parte affidavit; when evidence. 3005. Competency of witness; how determined. 3006. Constable to keep jury; his oath. 3007. Rendition of verdict: plaintiff need not be called. 3008. Jury, when to be discharged; new venire. 3009. Fine to be imposed on defaulting juror. § 2988. [Am'd, 1906.] Effect of failure of defendant to appear. Where the defendant makes default in appearing or pleading. upon the return of a summons, which has been duly served as prescribed in this chapter, the justice must hear the allegations and proofs of the plaintiff, and render judgment according to law and equity, as the very right of the case appears, except in an action commenced by the service of a summons and verified complaint as provided by section 2936 of this code, in which case judgment may be entered as provided by section 2891 of th's code. From 2 R. S. 242 (Part 3, c. 2, tit. 4), § 92. Am'd by L. 1906, c. 291 (in effect Sept. 1, 1906). § 2989. When justice to try issue of fact. Where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as prescribed in the last section. From Id., § 91. § 2990. [ Am'd, 1889, 1897, 1909.] When jury trial may be demanded. At the time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. The party demanding a trial by jury shall thereupon pay to the justice the statutory fees for the attendance of each person to be summoned and for the jurors to serve upon the trial, and also the fees to which the constable is entitled for notifying the persons to be drawn as jurors. The fees so deposited shall be delivered by the justice to the constable serving the venire, and by him shall be paid out as required by law. In default of a deposit as aforesaid the justice shall proceed as if no demand for trial by jury had been made. And the town clerk of every town in this State shall deliver to each of the justices of the peace in his town a certified copy of the list filed with him. in pursuance of section 505 of the Judiciary Law, and he shall also deliver to earn of said justices a certified copy of any such list hereafter filed with him. within ten days after the same shall be Yled. The town clerk is entitled to a fee of one dollar for each copy of said list so delivered. Any town clerk who shall neglect to deliver a copy of the list to each of the justices of the town within the time above prescribed, shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor of said town for the use of the poor of said town. From Id., § 93. Am'd by L. 1889, c. 505; L. 1897, c. 146; L. 1909, c. 65 (in effect Feb. 17, 1909). § 2991. [Am'd, 1889, 1909.] Drawing jurors. When a trial by jury is duly demanded, the justice must forthwith openly draw twelve ballots from a box or other receptacle containing the names of the persons who are returned as jurors of the town to the courts of record of the county upon the last list thereof received by him from the town clerk as jurors to attend and try said cause, on a day to which the cause shal! then be adjourned by him, not more than eight days from the joining of issue, unless the parties consent to a longer adjournment, which consent shall be entered in the justice's minutes. The ballots shall be of the same description as those prescribed in section 2994 of this act, but they may be, or may previously have been prepared by a justice. If a person whose name is thus drawn, in the judgment of the justice, resides more than three miles from the place of trial the justice may set aside such juror, and he may excuse any juror who comes within the provisions of section 544 of the Judiciary Law, and in either case draw another ballot, and continue to do so until twelve are drawn. After the adjournment of the court, at which a jury trial has been had, the justice must deposit the ballots containing the names of those who attended and served, in another box kept by him. The ballots containing the names of those who did not appear and serve must be returned by the justice to the box from which they were taken. If at the time of drawing jurors for the court there is not a sufficient number of ballots remaining in the original box. the justice, upon drawing all the ballots therein. must draw the necessary number from the second box containing the names of those jurors who have before served, as in this section prescribed, and must continue to draw from that box until a new list of jurors is delivered to him by said town clerk. From 2 R. S. 242. $$ 94, 95. Am'd by L. 1889, c. 505; L. 1909, c. 65 (in effect Feb. 17, 1909). § 2992. Venire in action between two towns, etc. Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to notify twelve men of the county, who are qualified and not exempt, as prescribed in the last section, and who are not interested in the matter at issue, to form a jury for the trial of the action. From 2 R. S. 242, § 96. § 2993. [Am'd, 1889.] Venire; service and return thereof. The justice must insert the names of the jurors so drawn, in a venire, and deliver or cause it to be delivered to a constable of the county disinterested between the parties. The constable must, at least three days before the day therein stated, notify each of the persons whose names have been therein inserted, by reading it or stating the substance thereof to the person so served. But the service shall not be affected by the constable's failure, after diligent search, to find any of the persons so named. The constable must make his return upon the venire, certifying that he has so personally served it upon each of the jurors whose names are therein inserted. or if any were not served, stating the reason for such omission. Any constable making a false return upon such venire is guilty of a misdo meanor. Any person so served and not attending at the time and place to which the cause was so adjourned, is guilty of a contempt of court, punishable by a fine not exceeding ten dollars, which the justice may impose forthwith by an entry in his minutes of the imposition of such fine, to be collected by execution issued by the justice as upon a judgment, with costs of the levy, and which fine shall be paid over to the use of the poor of the county by the justice, but upon the presentation of a reasonable and sufficient excuse by or on behalf of the person so fined, the justice may, at any time, remit such fine, or any part thereof. From 2 R. S. 243, §§ 97, 98; L. 1847, c. 470, § 53. Am'd by L. 1880, 2. 505. § 2994. Ballots; how prepared. For the purpose of procuring a jury to try the action, the justice must prepare, or cause to be prepared, ballots, uniform, as nearly as may be, in appearance, by writing the name of each person returned, who attends, upon a separate piece of paper. The constable, in the presence of the justice, must roll up or fold each ballot in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a box, or other convenient receptacle. From Id., 99. § 2995. [Am'd, 1889.] Drawing jury. The justice must then openly draw out, one after another, six of the ballots. If a person, whose name is drawn, is challenged and set aside, or is excused, another ballot must be drawn, and so on, successively, until the required number of jurors is obtained. The parties may elect to try the cause by a less number than six jurors, at any time before a witness is sworn. The persons so selected as herein provided, constitute the jury to try the action. From Id.. § 100. Am'd by L. 1889, c. 505. § 2996. [Am'd, 1889.] Jurors in default. If a sufficient number of competent jurors do not attend, the justice shall issue an attachment against all defaulting jurors, and shall place the same in the hands of the officer who summoned the same, commanding him forthwith to attach such jurors and to bring them before him at a time specified not more than thirty-six hours thereafter, to which the cause must be adjourned. The juror or jurors so attached shall, in addition to the fine specified in section 2993 of this act, be required to pay the expense of the attachment and service thereof; which shall be the officer's fees, together with all necessary expense incurred by him in serving said attachment, to be audited and fixed, to be enforced in the same manner, and when collected to be paid to the officer or the party who has paid the same. Any person so attached and disobeying or resisting the service of said attachment is guilty of a misdemeanor. From 2 R. S. 243, § 101. Am'd by L. 1889, c. 505. § 2997. [Am'd, 1889, 1892.] New venire, etc. If the constable to whom the venire is delivered does not return it as required thereby, or it is for any reason set aside, the justice must proceed to draw another jury, in the manner |