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877. Deposition of prisoner.
879. Deposition by consent.
880. Manner of taking and re-

turping deposition.
881. When to be read in evi.

dence.
882, Proof of witnesses' ipabil-

ity to attend. 883. Effect of deposition. 884. Original affidavits, evi.

dence. 885. Deposition to be used on

motion. 886. Where witpess may be

compelled to attend.

173.

& Abb. N. C. $ 870. [Am'd 1877, 1878.) The deposition of a party to an 157.

action pending in a court of record or of a person who expects 78 ... 434; to be a party to an action about to be brought in such a court 48 N.Y. Sup- other than a court specified in subdivisions sixteenth, sevener. Ct. (J. & teenth, eighteenth or nineteenth of section two of this act S.) 101. may be taken at his own instance or at the instance of an ad32 Hun, 12. verse party or of a co-plaintiff or co-defendant at any time be 3 How. Pr. fore the trial as prescribed in this article. N. S. 270.

12 Civ Pro. 4, 101 N, Y. 176; 109 Id. 81; 135 Id. 272; 144 N, Y. 354; 9u

Hun, 62. 15 App. Div. 397; 21 Misc. 101. 1369, Con- $ 871. (Amd 1877.] The deposition of a person not a sol. Act. party, whose testimony is material and necessary to a party 25 App. Div. to an action, pending in a court of record, other than a court

specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act; or to a person who expects to be a party to an action, about to be brought in such à court, by a person other than the person to be examined,

may also be taken, as prescribed in this article. 4 Abb. N. § 872. (Amd 1877, 1879, 1880, 1893, 1895, amendment to C: 246; Id. take effect January 1, 1896.) The person desirivg to take a 254. 26 Hun, 433.

deposition as prescribed in this article, may present to a 19 Week. judge of the court in which the action is pending; or, if it is Dig. 375. pending in the supreme court, to a county judge; or, if an 37 Hun, 232; action is not pending, but is expected to be brought, to a Id. 631.

judge of the supreme court, or to a county judge, an affidavit setting forth as follows: 30 Abb. N. C. 85n; 15 Misc. 75; 17 Id. 559

33 App. Div. 169; Id 242. 12 Misc. 66.

1. The names and residences of all the parties to the ac67 State Reption, and whether or not they have appeared, and if either 548.

of them has appeared by attorney, the name and the resid. ence or office address of the attorney; or, if no action is pending, the names and residences of the expected parties thereto.

2. If an action is pending, the nature of the action, and the substance of the judgment demanded, and if the appli. cation is made by the defendunt before answer, or by either party after answer, the nature of the defense,

3. If no action is pending, the nature of the controversy which is expected to be the subject thereof.

4. The name and residence of the person to be examined, and that the testimony of such person is material and neces. sary for the party making such application or the prosecution or defense of such action, and if the action is to recover damages for personal injuries, that the defendantis ignorant of the nature and extent of such personal injuries ; and, at

the option of the applicant, the place where he is sojourning Abb. N. or where he regularly transacts business. 32 Hun, 12. is about to depart from the State, or that he is so sick or

5. If an action is pending, that the person to be examined BN Y.Bupp. not be able to attend the trial; or that any other special cir

oumstances exist which render it proper that he should be

11 0.419.

328.

81.

144 N. Y. 854.

examined as prescribed in this article. But this subdivision does not apply to a case where the person to be examined is 8 party to the action.

6. If no action is pending, that the person expected to be the adverse party is of full age and a resident of the State, or sojourning within the State; or that he has an office within the State where he regularly transacts business in person, specifying the place, and, if it is in a city, the street and street number or other designation of the particular locality; or, if two or more persons are expected to be adverse parties, tha: each is of full age and so resident or sojourning or has an office; also the circumstances which render it necessary for the protection of the applicant's rights, that the witness’ testimony should be perpetuated.

7. Any other fact necessary to show that the case comes within one of the two last sectious. And if the party sought to be examined is a corporation, the affid.vit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material or the books and papers as to the contents of which an examination or inspec. tion is desired, and the order to be made in respect thereto shall direct the examination of such persons and the produc. tion of such books and papers.

$ 873. [Am'd 1877, 1879, 1884, 1893, 1894.] The judge to whom such an affidavit is presented must grant an order for 3 Abb. N. C. the examination, if an action is pending; if vo action is pend- 6 N.Y. Supp. ing he last grant it if there be reasonable ground to believe 323. that an action will be brought, as stated in the affidavit, and 67 How. Pr. that the application is made in good faith to preserve tho ex. 109 n. I. 1. pected testimony; otherwise he must dismiss the application. 142 N. Y. 298. Where the person to be examined is a party to a pending ac 87 Hun, 684. tion, or is expected to be a party to an action to be brought, 90 18.62, 342. the order way, in the discretion of the judge, designate and 23 Misc. 241. limit the particular matters as to which he shall be exam. 31 App. Div. in d. In every action to recover damages for personal in. juries, the court or judge, in granting an order for the examination of the plaintiff before trial may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be de ignited by the court or judge, and such examination sball be had and made under such restrictions and directions as to the conrt or judge shall seem proper. In any action bronght to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge sball order that

412.

172
DEPOSITIONS.

$$ 874-876 such physical examination bè made, and if the party to be examined shall be a female she shall be entitled to have such examination before phy:iciads or surgeons of her own sex. The order must require the party or persons to be examined to appear before the judge, or before a referee Danied in the order, for the purpose of taking the examination, at a time and place therein specified. The order mnst also direct the time of service of a copy thereof; which must be made with. in the state, not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order.

29 Abb. X.O. 426.

$ 874. (Am'd 1877, 1882.) Witnesses' fees, at the rate prescribed by law in an action in the supreme court, must be paid or tendered when the order is served upon the party or other person required to attend. If the party or person so served fails to obey the order, bis attendance may be com. pelled and he may be punished, in like manner, and the probeedings thereon are the same, as if he failed to obey a sub. poena issued from the court in which the action is pending, or, if no action is pending from the court of which the judge is a member,

63 Hun, 347.

§ 875. [Am'd 1879.] A copy of the order, and of the ali. davit

upon which it was granted, must be served upon the attorney for each party to the action, in like manner as a paper in the action; or, if a party has not appeared in the action, they must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties.

29 Abb. N.C 426.

$ 876. [Am'd 1879.) Upon proof, by affidavit, that ser. vice of a copy of the order and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness, at the time and place specified in the order. He may from time to time, adjourn the examinati n to another day, and to another place, within the me county. Sections eight hundred and fifty-six, eight hundred and fifty-seven, and eight hundred andîftyeight of this act apply to the examination of a party or a per. son expected to be an adverse party, taken as prescribed in this article.

$ 877. [ Am'd 1877, 1882.] Where the party or other person to be examined is confined in a prison or ja 1 w.thin the State, under a sentence for a felony, that fact must le stated in the affidavit, and his deposition may be taken as prescribed in the foregoing sections, as if he was not so confidel, except that in such a case, the granting or refusing the order, aud if granted, the appointment of a referee to take the testimony, is always in the discretion of the judge. The order must require the production of the prisoner by the person in charge of the prison or jail, at the prison or jail; but it may prescribe such regulations and restrictions with respect thereto as the judge deems proper.

$ 878. (Repealed 1877.)

§ 879. [Am'd 1882 ] The parties to an action may stipulate in writing that the deposition of a competent witness, to be ased therein, may be taken before a judge or referee, at a time and place specified in the stipulation, either orally or ap on interrogatories to be agreed upon in like manner. The witness may be subpoenaed to atitnd the examination as upon a trial, and the judge or referee may take his dep sition, as if an order had been made by the court directing it to be so taken. But this section does not apply to a case specified in section eight hundred and seventy-seven of this act.

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8 880. [Am'd 1879.) The examination of a party, or an 33 Hun, 1. expected party, is subject to the same rules as if he was 30 Abu.NU examined upon the trial. The judge or referee, upon every other examination, taken as prescribed in this article, must insert therein every answer or declaration of the person examined, which either party requires to be inserted. The deposition, when completed, must be carefully rend to and subscribed by the person examined; must be certitied by the judge or referee taking it; and, withiu ten days thereafter, must be filed in the office of the clerk; or, if yo action is peodiug, in the office of the clerk of the county in which it was taken; together with the stipulation or order under wbich it was taken; the affidavit upon which the order was granted; and proof of the service of a copy of the order and of the affidavit. If, upon an examination before a referee, the person examined refuses to answer any question, the referee must report the fact to the court or judge, who must determine whether the question is relevant, and whether the witness is bound to answer it.

The Union Surety and Guaranty Co.

31 Abb. N.C. 369.

$ 881. The deposition, or a certified copy thereof, may be readin 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 specified in the original affidavit or stipulation; or any other action thereafter brought, between the same parties, or between the parties claiming under them, or either of them; or, if no action is pending, an action thereafter brought, between the persons named in the original affidavit as expected parties, or between persons claiming under them or either of them.

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