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S 882. [Am'd 1882.) But such a deposition, except that of
87 V. Y. 272 a party, taken at the instance of an adverse party, or deposition taken in pursuance of a stipulation, as prescribed in this article, shall not be so reaci 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 confined 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 subpæna.
$ 883. A deposition, so read in evidence, has the same ef: è 1369 Con fect, and no other, as the oral testimony of the witness would sol. Act. 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.
§ 884. The original affidavits, filed with such a deposition, 30 Abb. N.C. or certified copies thereof, are presumptive evidence of the 85n. facts therein contained, to show a compliance with the provisions of this article. $ 885. (Amd 1887.) Where a party intends to make or
4 Month. L. oppose a motion in a court of record, other than a court speci- Bul. 3. fied in subdivision sixteen, seventeen, eighteen or nineteen of 27 Hun, 352. section two of this act, and it is necessary for him to have the 3 Civ. Pro. affidavit or deposition of a person not a party, to use upon the 448; 4 Id. motion, the court, or a judge authorized to make an order in 214. the cause, may, in its or his discretion, make an order appoin
2 Dem. 399. tiny a referee to take the deposition of that person. The order
3 N. Y. State must be founded upon proof, by affidavit, that the applicant 4 Dem. 212.
Rep. 194. intends to make the motion, or that notice of a motion has been 20 Abb. N. given, which the applicant intends to oppose. The affidavit C. 172. must specify the nature of the motion, and must show that the 2 N.Y.Supp. affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the facts which the applicant verily believes are within his knowledge. The order may be made upon or without notice. The person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a different disposition thereof.
$ 886. Where a person to be examined, as prescribed in 10 Civ. Pro. this article, is a resident of the State, he shall not be required 178. to attend in any county, other than that in which he resides, 31 Hun, 95. or where he has an office for the regular transaction of busi- 30 Abb N.C ness, in person. Where he is not a resident, he shall not be re- 8án. quired to attend in any other county, than that wherein he is served with a subpoena, unless, for special reasons, stated in the affidavit, the order otherwise directs.
ARTICLE SECOND, DEPOSITIONS, TAKEN WITHOU LE STATE, FOR
THE STATE. 2 887, 888. When commission to ê 890. Order made by judge. 19-tie, etc.
891. Interrogatories; how set. 889. How and upon what terms
2 892. Id., to be annexed ; direc
take depositions; how tions for return.
executed ard returned. 893. Commission to examine 3 902. ('ertificate of execution. upon oral questions.
903. Certificate, 2 sufficient re. 894. When open commission
905. If agent is sick or dead. 898 De:) isitions where adverse
Filing de position, pirty is an infant or com
etc., so returned. muittec.
908. Commission, etc., by con896. Notice of examination up
sent. on oral questions,
909. Where return to be kept ; 897. Open Commission.
parties may inspect it, 898. Order directing deposi.
etc. sitions to be taken.
910. When deposition may be 399. Before whom depositions
suppressed. may be taken; notice of 911. Depositions, etc., evidence. taking.
912. When interrogatories and 900. How depositons taken.
depositions may be in a 901. Commission or order to
913. Letters rogatory. 2 Dem. 298. S 887. [.4m'd 1879.) In a case specified in the next sec4 N.Y.Supp. tion, where it appears, by affidavit, on the application of 703.
either party, that the testimony of one or more witnesses, not } wp. Div. with n the State, is material to the applicant, a commission
may be issued, to one or more competent persons, named 31 Id. 298. therein, authorizing them, or any one of them, to examine the
witness or witnesses named therein, under oath upon the interrgittories annexed to the commission; to take and certify the deposition of each witness, and to return the
and the commissiou, according to the directions given in or with the commission. The applicant, or any other party to the
acticü, may be thus examined. 4 N.Y.Supo.
$ 89%. [Am'd 1894, 1895, amendment to take efiert January 7013
1, 1893. Such a commission may be issued in either of the
following cases : !33 N.Y.272. 1. Where a party to an action brought in a court of record
is in default for want of an appearance or pleading, and the testimony is required upon the assessment of damages by a writ of inquiry or upon a reference; or otherwise, to enable the court to render the proper final judgment.
2. Where final judgment has been rendered ag inst the adverse party in an action brought in a court of record; and the testimony is required in order to carry the judgment into effect.
3. Hhere an appeal from a final judgment rendered in the sipreme court, the city court of the city of New York, or a county court, or a motion for a new trial in either of those courts is pending, and the testimony will be material and necessary to the applicant in the prosecution or defense of the action if a new trinl is granted.
4. Where the application is made 'before the joinder of issue, in an action brought in either of the courts specified in the list subtiivision; and there is reason to apprehend that before issue is joined and an application for a commission can thereafter be made, the witness will die or become unable to give his testimony or remove so that his testimony can not be taken.
5. Where an issue of fact has been joined in an action pending in a court of record and the testimony is m terial to the pplicant in the prosecution or defense thereof. 6. In special proceedings.
SSI. Ini case specifi.d in subilivision third of the last
section, if the appeal has been taken to another court, the application must be made to the court in which the judgment was rendered; and an order, directing the commission to be issued, may be granted or refused, in the discretion of that court. In a case specified in either of the other subdivisions of that section, the application may be made to the court, or a judge thereof, or, in the supreme court, to the county judge of the county, where the action is triable; and it inust be granted, upon satisfactory proof of the facts authorizing it, unless the court or judge has reason to believe, that the application is not made in good faith, or unless an order for an open commission, or for taking depositions, is made as prescribed in this article. Notice of the application must be given to the adverse party, unless he is in default for want of an appearance. Upon granting the order, the court or judge may, in any case, impose such terms as justice requires.
S 890. Where the order is made by a judge, out of court, it must be entered in the office of the clerk. It shall be granted, only in a case, where the court would grant it, and upon the saine terms; and it is subject to the control of the court.
$ 891. Unless the interrogatories, to be annexed to the 23 Civ. Pro commission, are settled by consent of the parties, they must R. 317. be settled, upon notice, by a judge of the court, or, in the supreme court, by the county judge of the county, where the ictwa is triable, as prescribed in the general rules of practice.
$ 892. The interrogatories, when settled, must be annex- 20 Misc. 509. ed to the commission. Either party must be allowed to insert therein any question, pertinent to the issue, which he propises. Unless the parties stipulate in writing, or the order granting the commission prescribes, how it shall be returned, the judge must indorse, upon the commission, the proper direction for that purpose. Unless the court or judge thinks proper to direct it to be returned by an agent, it must be returned through the post office.
2 893. (Am'd 1877, 1895, amendment to trke effect January 136 N. Y. 272. 1, 1896.) Where an issue of fact, joined in an action, is pending in the supreme court, the city court of the city of New York, or a county court, the parties may stipulate, in writing, or the court to which, or the judge to whom, an application for a commission is made, may, in its or his discretion, direct, in the order, that a commission issue without written interrogatories, and that the depositions be tiken upon oral questions ; or that a commission issue to take the deposition of one or more witnesses, designated in the order, partly upon oral questions and partly upon written interrogatories, or to take the deposition of one or more witnesses, designated in the order, upon oral ques. tions, and one or more witnesses, designated in the order, upon written interrogatories. § 894. Where an issue of fact, joined in an action, is
10 Abb. N.o pending in either of the courts specified in the last section, the 324. parties may stipulate, in writing, or the court, or a judge thereof, or, in the supreme court, the county judge of the 9 App. Div. county where the action is triable, may, in iis or his disere- 570 tion, upon the application of either party, and upon satis- 23 Misc. 615. factory proof, by affidavit, that one or more witnesses, not within the State, are material and necessary in the prosecution or defence of the action, make an order, upon such terms as it or he deems proper, directing that an open commission
4 Dem. 330
issue, or that depositions be taken, as prescribed in the follow. ing sections of this article.
$ 89 Depositions where adverse party is an infant or committee. [ Am'd 1879, 1897.] The last two sections are not policable, where the adverse party is an infant, or the coin mittee of a person judicially declared to be incapébly of managing his affairs, by reason of lunacy, idiocy or habitual drunkenness. Nor can the applicant be examinea in his own behalf, as prescribed in those sections, except by consent of the parties.
$ 896. Where a commission is issued, to take testinony without written interrogatories, as prescribed in section eigh: hundred and ninety-three or section eight hundred and ninetyfour of this act, notice of the time and place of the examination of a witness, by virtue thereof, naming the witness, must be served as prescribed in section eight hundred and ninetynine of this act.
$ 897. An open commission must be directed to one or more persons, named therein, and must authorize them, or any one of them, to examine any witness who may be produced by either party, on or before a day specified therein, upon oral questions to be put to the witness, when he is pro duced ; to take and certity the deposition of each witness so examined ; and to return the same, and the cominission, immediately after the expiration of the time limited for the production of witnesses, according to the directions, given in or with the commission.
$ 898. An order, directing that depositions be taken, must specify the time within which they must be taken, and the manner in which they must be returned. It may also contain such additional directions, not inconsistent with the next section, with respect to the time and manner of giviiis notice, as the court or judge deeis proper. The order must be entered in the clerk's office; and a certified copy thereof must be annexed to each deposition, or set of depositions, rearned as prescribed in the following sections of this article.
§ 899. A deposition may be taken, pursuant to such an order, before a person mutually agreed upon by the parties, or a chancellor, or a judge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the State or Territory, where the witness is; who is not counsel or attorney for either party, and would not be disqualified, by reason of affinity or consanguinity to a party, or interest in the event, from serving as a juror upon the trial of the action, within the State. Written notice of the time and place of taking a deposition, specifying the name of the witness, and the person before whom it will be taken, must be served by the party, at whose instance it is taken, upon the attorney for the adverse party. The time for serving such a notice must be, at least, five judicial days before the deposition is taken; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence cí the attorney for the adverse party, and the place wiere the deposition is to be taken.
$ 900. Upon the examination of a witness, without written interrogatories, by virtue of a commission, or of an order to take depositions, the commissioner, or the person before
whom the deposition is taken, must take down, or cause to be Saken down, as prescribed in the next section, the substance of the witness's testimony ; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commissioor orier otherwise directs, the person, appearing for either pirty, inay ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specitied at the time of examination. A copy of this section must be annexed to each coinmission to take testimony without written interrogatories, and to each certified copy of an order to take a deposition.
$ 901. The person, to whom a commission is directed, or before whom a deposition is taken, unless otherwise expressly directed in the commission, or in the order for taking the depositions, must execute the commission, or the order, as follows:
1. He must publicly administer, to each witness examined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters representing which the witness is to be examined.
2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing, by a disinterested person. After it has been carefully read, to or by the witDess, it must be subscribed by the witness.
3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto.
4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the deposition ; be must annex all the depositions and exhibits to the commission, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section ; and he must close them up under his seal, and address the packet, to the clerk of the court, at his official residence.
5. If there is a direction, on the commission, or in the order, to return the same through the post-office, he must immediately deposit the packet, so addressed, in the post-office, and pay the postage thereon.
6. 'If there is a direction, on the commission, or in the order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet so addressed must be delivered to the agent.
7. Where a commission is directed to two or more persons, one or more of them may execute it, as prescribed in this and the rest section.
A copy of this and of the next section must be annexed to each commnission, or order to tike depositious, authorized by this article.
& 902. The commissioner or other person, before whom 78 Hun, 516. one or more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up : “State" (or "Territory')" of
“County" (or “parish ") " of