DEPOSITION § 39 § 39. [Subject to the provisions of this article,] The depositions or a certified copy thereof, taken to perpetuate testimony in an action or proceeding involving a question as to the title of real property in the Deposition state of New York, taken before a referee or pursuant to a commission, may be read in evidence by any party to an action or proceeding, which shall involve the title to such real property, as against the person on whose petition said depositions were taken, each person to whom notice of the taking of such depositions was given as directed in the order appointing the referee, and all persons claiming from, through or under them or any of them. A deposition, taken [and returned as prescribed in this article] without the state for use within the state or an exemplified copy thereof, if the original is filed in another county, may, unless it is suppressed [as prescribed in the last section] be read in evidence by either party, and an objection to the competency or credibility of the witness, or to the relevancy, or substantial competency, of a question put to him, or of an answer given by him, may be made, as if the witness was then personally examined, and without being noted upon the deposition. [The] A deposition, taken and to be used within the state or a certified copy thereof, may be read in evidence by either party, at the trial of, or upon the assessment of damages, by writ of inquiry, or upon a reference, or otherwise, in the action or in any special proceeding specified in the original affidavit or stipulation, or in any other action or special proceeding thereafter brought between the same parties, or between any parties claiming under them or either of them, or, if no action or special proceeding is then pending, in an action or special proceeding thereafter brought between the persons named in the original affidavit as expected parties, or between persons claiming under them or either of them, including the case where one of the parties is the executor of the will or administrator of the estate of the witness and is given a cause of action by reason of sections 127 and 127a of the Decedent Estate Law. [nineteen hundred and two of this act.] And except in the cases prescribed [to the contrary in section eight hundred and eighty-two of this act,] herein the said deposition, or a certified copy thereof, may be read in evidence by either party to the action or special proceeding in which it is taken, and as between the defendant in said action and the legal representatives and privies in interest and estate of the plaintiff, and as between the plaintiff and the legal representatives and privies in interest and estate of the defendant, and as between the legal representatives and privies in interest and estate of the defendant and the legal representatives and privies in interest and estate of the plaintiff. But [such] a deposition, taken and to be used within the state except that of a party, taken at the instance of an adverse party, or a deposition taken in pursuance of a stipulation, [as prescribed in this article, shall not be so read in evidence until it has been satisfactorily proved that the witness is dead, or is unable personally to attend by reason of his insanity, sickness or other infirmity, or that he is con 231 §§ 40-44 fined in a prison or jail; or that he has been and is absent from the State, so that his attendance could not, with reasonable diligence, be compelled by subpoena. [Note 2044.] Effect of deposition Effect of deposition Presumption of facts contained in affidavits for deposition § 40. A deposition [, so] taken and to be used within the state read in evidence has the same effect, and no other, as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness; or to the relevancy or substantial competency of a question put to him, or of an answer given by him; may be made as if the witness was then personally examined and without being noted upon the deposition. [Note 2045.] § 41. A deposition taken without the state for use within the state has the same effect, and no other as the oral testimony of the witness would have. [Note 2046.] § 42. The original affidavits, filed with [such] a deposition taken and to be used within the state or certified copies thereof, are presumptive evidence of the facts therein contained, to show a compliance with the provisions [of this article.] relating to such deposition. [Note 2047.] Designation by foreign corporation of person upon whom to serve ARTICLE 24 DESIGNATION FOR SERVICE § 43. An exemplified copy of a designation of a person upon whom to make service filed by a foreign corporation as provided in section 16 of the General Corporation Law accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. [Note 2048.] DEVISE, see Partition. DISCOVERY, see Documentary Evidence. Divorce ARTICLE 25 DIVORCE § 44. In an action for divorce if the answer does not put in issue the allegation of adultery, or if the defendant makes default in appearing or pleading, the plaintiff before he is entitled to judgment, must nevertheless satisfactorily prove the material allegations of his complaint, and also, by his own testimony or otherwise, that there is no judgment or decree, in any court of the state of competent jurisdiction, against him in favor of the defendant for a divorce on the ground of adultery. [Note 2049.] DOCKET BOOK, see Justice of the Peace. DOCUMENTARY EVIDENCE ARTICLE 26 DOCUMENTARY EVIDENCE 233 §§ 45-49 § 45. A book, document, or other paper, produced under an Book, docuorder [made as prescribed in this article,] has the same effect, when ment and used by the party requiring it, as if it was produced upon notice, paper proaccording to the practice of the court. [Note 2050.] duced evidence perpetuated § 46. [No provision of this article shall give to any] Documen- Documentary tary evidence introduced in connection with [such] testimony perpetuated shall not be given any greater or different effect than [may be] is due to it by reason of the testimony relative thereto or its own character. [Note 2051.] § 47. Nothing [in title fourth of this chapter] in this article or Common law elsewhere relating to documentary evidence shall prevent [s] the proof proof of documentary of a fact, act, record, proceeding, document, or other paper or writ- evidence ing, according to the rules of the common law or by any other competent proof. [Note 2052.] EDICT, see Statute. ARTICLE 27 EJECTMENT § 48. In an action of ejectment by a grantee, his heir or devisee, Action by in the name of the grantor, or his heir, where the conveyance under grantee in which he claims, is void because the property conveyed was held ad- ejectment versely to the grantor, the plaintiff must be allowed to prove the facts to bring the case within this section. [Note 2053.] § 49. Where [the] an action of ejectment is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him, or did some other act, amounting to a total denial of his right. [Note 2054.] ESCHEAT, see Judgment. EXECUTION, see Certificate; Return to Execution. EXECUTOR AND ADMINISTRATOR, see Account; Inventory; Judgment. FOREIGN CORPORATION, see Book; Corporation; Designation for Action of by tenant ejectment ARTICLE 28 FOREIGN RECORD § 50. A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence, when authenticated as follows: 1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office; 2. By a certificate of the chief judge or presiding magistrate of the court, to the effect, that the person, so attesting the record, is the clerk of the court; or that he is the officer, in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine; 3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the secretary of state, or other officer having the custody of that seal, to the effect, that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief judge or presiding magistrate, to the certificate specified in the last subdivision, is genuine. A copy of a record, or other judicial proceeding, of a court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of the original; 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer, legally having charge of it. 3. That the attestation is genuine. [Note 2055.] § 51. Nothing in this [article] act is to be construed, as declaring the effect of a record or other judicial proceeding of a foreign country, authenticated, so as to be evidenced. [Note 2056.] FOREIGN WILL, see Will. Evidence on former trials ARTICLE 29 FORMER TRIAL $ 52. Upon any new trial of an action, brought [as prescribed in this article] to compel the determination of a claim to real property the record of the evidence given upon the previous trial, may be again offered to the court by either party, and may be received in evidence, in case the same evidence cannot be again procured. [Note 2057.] FRAUD ARTICLE 30 235 §§ 53-56 action on § 53. In an action upon contract, express or implied, other than Proof of a promise to marry, where it is alleged in the complaint that the fraud in defendant was guilty of a fraud in contracting or incurring the contract liability, or that he has, since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; [but where such allegation is made,] the plaintiff cannot recover unless he proves the fraud on the trial of the action. [; and a judgment for the defendant is not a bar to a new action to recover upon the contract only.] [Note 2058.] GOVERNMENT RECORD, see Public Record; U. S. Record. GRANTEE, see Ejectment. heirs in conveyance, etc. § 54. Hereafter, in any proceeding, suit or action pending or Recital of hereafter brought, in any of the courts of this state, any deed, mortgage, lease, release, power of attorney, or other instrument more than thirty years old, executed for the purpose of transferring the title to or interest in lands, tenements or hereditaments situated within this state, which contains recitals that the grantors, grantees, or either, or both, are the heirs-at-law of a prior owner of the title or interest described in said instrument, shall be presumptive evidence of said heirship as therein recited, if such instrument be duly acknowledged or witnessed and proved in any manner required or permitted at the date of the execution thereof, and be duly recorded in any county where any part of the lands described therein shall be located, or duly recorded in the office of the secretary of state of the state of New York. [Note 2059.] ARTICLE 31 § 55. Comparison of a disputed writing with any writing proved Handwriting to the satisfaction of the court to be the genuine handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing shall be permitted and submitted to the court and jury in like manner. [Note 2060.] ARTICLE 32 HUSBAND AND WIFE see also Divorce and wife in § 56. A husband or wife is not competent to testify against the Testimony other upon the trial of an action, or the hearing upon the merits of husband of a special proceeding founded upon an allegation of adultery, action or proexcept to prove the marriage, or disprove the allegation of adultery. ceeding [Note 2061.] |