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OATHS AND AFFIRMATIONS.

165

S.) 202.

843. (Amd 1877.] Where an officer, person, board, or 129 N. Y. 360. committee, has been heretofore, or is hereafter authorized' by 140 N. Y. 6. law, to take or hear testimony, or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board or committee, to whom or to which application is made Lo do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purPirse,

$ 844. (Amd 1877.) An oath or affidavit required, or 6 Civ. Pro. which may be received, in an action, special proceeding, or 117. * other matter, may be taken, without the State, except where 34 Hun, 192. it is otherwise specially prescribed by law, before an officer 50 N.Y. Supauthorized by the laws of the State, to take and certify the ergo; (I. & acknowledgment and proof of deeds, to be recorded in the

3 Dem. 11. State; and, when certified by him to have been taken before bim, and accompanied with the like certificates, as to his of- 90 Hun, 36. ficial character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used, as if taken and certified in this State, by an officer authorized by law to take and certify the same.

$ 845, General mode of swearing. (Am'd 1899, amend. ment to take effect September 1, 1899.] –Except as otherwise specially prescribed in this article, when an oath is administered, the witness Bhall lay his hand on the gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the gospels.

$ 846. When kissing the gospels dispensed with. (Amd 1899, amendment to take effect September 1, 1899.) The oath must be administered in the following form to a person who so desires, the laying of the hand upon the gospels being omitted : “You do swear, in the presence of the ever living God." While so swearing, he may or may not hold up his hand, at his option.

$ 847. A solemn declaration or affirmation, in the following forin, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form : “You do solemnly, sincerely, and truly, declare and affirm."

$ 848. Other modes of swearing. [Am'd 1877, 1899, amendinent to take effect September 1, 1899.) -If the court or officer, before which or whom a person is offered as a witness is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the band upon the gospels is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness.

$ 849. (Amd 1877.) A person believing in a religion, other than the Christian, may be sworn according to the

ness.

not

peculiar ceremonies, if any, of his religion, instead of as prescribed in section eight hundred and forty-five or section eight hundred and forty-six of this act.

$ 850. The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowledge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory.

$ 851. Swearing falsely in any form, perjury. [Am'd 1899, amendment to take effect September 1, 1899. 1-A person swearing, affirming, or declaring, in any form, where an oath is authorized by law, is lawfully sworo, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon the gospels.

TITLE II. Compelling the attendance and testimony of a witness. 2 852. Mode of serving subpoena,

from arrest. issued out of a court. 2 862. By whom witness may be 853. Penalty for disobedience,

discharged. 854. Subpæda to be issued by 863. Arrest, when void ; penjudge, etc.

alty, 855. Penalty for disobeying 864. Sheriff not to be liable unsubpoena; warrant for wit

less affidavit is made.

865. Application of foregoing 856. When witness to be im.

provisions to judgments. prisoned.

866. Records

to be re857. Contents of warrant.

moved by virtue of sub 858. To whom directed; how

pena. executed.

867. Id.; books of account. 859. Qualification of preceding 868. Books, etc., of corporasections.

tion, how produced. 860. Witness exempt from ar- 869. When personal attendance

not required by subpoena 861. When to be discharged

duces tecum. $ 852. A subpoena, issued out of the court, to compel the attendance of a witness, and, where the subpæna so requires, to compel him to bring with him a book or paper, must be served as follows :

1. The original subpena must be exhibited to the witness.

2. A copy of the subpæna, or a ticket containing its substance, must be delivered to him.

3. The fees allowed by law, for travelling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.

$ 853. A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasonable excuse, to obey an order, duly served upop him, made by the court or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or a paper, is liable, in addition to punishment for contempt, for the d images sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishinent, strike out his pleading.

$ 854. [Amd 1877.] Where a judge, or an arbitrator, referee, or other person, or a board or committee, has beta

rest

jeretofore, or is hereafter expressly authorized by law, to hear, try, or determine a inatter or to do any other act in an fficial capacity, in relation to which proofs may be taken, or the attendance of a person as a witness may be required : or w require a person to attend, either before him or it, or before another judge, or officer, or a person designated in a ommission issued by a court of another State or country, to give testimony, or to have his deposition taken, or to be examined ; a subpoena may be issued, by and under the hand of the judge, arbitrator, referee, or other person, or the chairman, or a majority, of the board or committee, requiring the person to attend ; and also, in a proper case, to bring with him a book or a paper. The subpoena must be served, as prescribed in section eight hundred and fifty-two of this act. This section does not apply to a matter arising, or an act to be done, in an action in a court of record.

$ 855. [Am'd 1877, 1879.) A person who is duly subpoenaed as prescribed in the last section, must obey the subpoena. If be fails so to do, without a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, to be recovered as prescribed in section eight hundred and fifty-three of this act. If he fails to attend, the person issuing the subpæna, if he is a judge of a court of record or not of record, or if not, then any judge of such a court, upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff of the county, commanding him to apprehend the defaulting witness, and bring him before the officer, person, or body, before whom or which his attendance was required. $ 856. (Amd 1879.) If the person subpoenaed and at

27 N.Y.State tending or brought as prescribed in the last section, before an officer, or other person or a body refuses without reasonable Rep. 352. cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper which he was directed to bring by the terms of the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain until he subinits to do the act which he was so required to do or is discharged according to law.

$ 857. A warrant of commitment, issued as prescribed in 27 N.Y.State the last section, must specify particularly the cause of the Rep. 352 commitment ; and, if the witness is committed for refusing to answer a question, the question must be inserted in the warrant.

$ 858. A warant to apprehend or commit a person, issued as prescribed in this title, must be directed to the sherilf of the county where the person is, and must be executed by him, in the same manner, as a similar mandate issued, by a court of record, in an action.

$ 859. The foregoing sections of this title do not apply to a subpoena issued by a justice of the peace; or to a witness subpoenaed to attend a court held by à justice of the peace; or to a case where special provision is otherwise made by law, for compelling the attendance of a witness.

386.

860. A person duly and in good faith subpoenaed or ordered to attend, for the purpose of being examined, in a case where his attendance inay lawfully be enforcod by attachment or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend.

$ 861. The court from which a subpoena, served in good faith, was issued, or by which an order was made, requiring a person to attend, for the purpose of being examined ; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness or other person, from an arrest made in violation of the last section.

2 862. [Am'd 1877, 1895, amendment to take effect January 1, 1896.) A justice of the supreme court, in any part of the State, or a county judge has the like authority as a judge of the court, to make an order for a discharge; in a case speci. fied in the last section. Upon satisfactory proof, by affidarit of the facts, he must also make an order, directing the dis. charge of a person arrested, in violation of section eight hundred and sixty of this act, where a subpoena served in good faith upon the person arrested, was issued as prescribed

in section eight hundred and fifty-four of this act. 8 Civ. Pro.

§ 863. An arrest made contrary to the foregoing provisions of this title, is absolutely void, and is a contempt of the *court, if any, from which the subpoena was issued, or bv which the witness was directed to attend. An action may be maintained, by the person arrested, against the officer or other person making such arrest, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest.

§ 864. [Am'd 1877.) But a sheriff, or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit to the effect that he was legally subpoenaed or ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding

In his affidavit he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest.

§ 865. The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply, where such an attendance is required by the terms of a judge ment.

9 866. [Am'd 1895, amendment to take effect January 1, 1896.] The record of a conveyance of real property, or any other record, or document, whereof a transcript duly certified may by law be read in evidence, shall not be removed, by virtue of a subpena duces tecum, from the office in which it is kept; except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk; or by the officer, having it in custody, to a term or sitting of a court, (r a trial before a referee, held in the city or town where bis office is situated. Where it is required at

arrest.

any other place, it 1 ay be removed, by order of the supreme cuurt, or a county court, made in court, and entered in the toinutes; specifying that the production of the original, instead of the transcript, is necessary.

$ 867. (Amd 1877, 1879.). A person shall not be compellel to produce, upon a trial or hearing, a book of account

24 Hun, 14. otherwise than by an order requiring him to produce it, or a subpoena duces tecum. Such subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a subpoena, or order, the witDess may obtain upon such a notice as the judge, referee, or other officer prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpena, or the order for production, upon such terms as justice equires, touching the inspection of the book, or any portion thereof, or taking a copy thereof, or extracts therefrom, or otherwise. An order may be made, as prescribed in this section, by a judge of the court, or, in a special proceeding pending out of court before an officer, by the officer, or, in either case, by a referee duly appointed in the cause, and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an uction brought in his court, at any time after the commencement thereof.

$ 868. The production, upon a trial, of a book or paper. belonging to or under the control of a corporation, may bě compelled, in like manner as if it was in the hands, or under the control, of a natural person. For that purpose a subpoena duces tecum, or an order, made as prescribed in the last section, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is.

$ 869. In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in section eight hundred and sixty-six or section eight hundred and sixty-seven of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify respecting the purposes for which it is used. If the personal attendance of a particular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him.

TITLE III.

Deposition.
Å ATICLE 1. Depositions, taken and to be used within the State.

2. Depositions, taken without the State, for use within the
3. Depositions, taken within the State, for use without the
State.

ARTICLE FIRST.
DEPOSITIONS, TAKEN AND TO BE USED WITHIN THE STATE.
(870. Deposition of a party, etc. 2 873. Order for examination.
871. Deposition of À witness 874. Subpoena.
pot a party.

875. Service of order, etc. 872. Application; contents of 876 Deposition

when and *#davit.

where to be taken.

State.

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