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the witness, personally appeared before me on the
noon, at the
and after being sworn” (or “affirmed," as the case may be), “to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and dini, in my presence, subscribe the same, and indorsed the exhibits annexed thereto. And I further certify that I have subscribed my name to each half-sheet thereof, and to each exhibit. And I further certify that
appeared in behalf of the and that
appeared in behalf of the .» $ 903. The certificate, specified in the last section, is a
sufficient return to a commission. 78 Hun, 516. $ 904. If the packet, specified in section nine hundred and
one of this act, is delivered to an agent, he must deliver it to the clerk, to whom it is addressed, or to a judge of the court, either of whom must receive and open it, upon the agent making affidavit, that he received it from the hands of the com missioner, or the person who took the deposition, and that it bas not been opened or altered, since he so received it.
$ 905. If the agent is dead, or, from sickness or other casıalty, is unable to deliver the packet personally, as prescribed in the last section, it must be received, by the clerk or judge. from the hands of any other person, upon the latter making ar affidavit, that he received it from the agent; that the agent is dead, or otherwise unable to deliver it; that it has not been opened or altered since he received it, and that he believes that it has not been opened or altered, since it came from the hands of the commissioner, or the person who took the deposi
tion. 13 Abb. N.
$ 906. The clerk or judge, who receives and opens the
packet, as prescribed in the last two sections, must indorse 78 Hun, 516. thereupon, and sign, a note of the time of the receipt and open
ing thereof, and immediately file it in the office of the clerk, together with the affidavit of the person, who delivered it to him.
8 907. If the packet is transmitted through the post-office, the clerk, to whom it is addressed, must receive it from the post-office, open it, indorse thereupon, and sigu, a like note of the time of the receipt and opening thereof, and immediately file it in his office.
§ 908. A commission may issue, or an order to take depositions may be made, by consent, in a case where either may be directed by the court or a judge, as prescribed in this article. On filing a stipulation to that effect, signed by the attorneys for the parties, the clerk must enter an order accordingly: and thereupon the attorney for the party, procuring the order, may insert in the commission, or indorse upon or annex to it, or the order, the necessary directions for the executicn and return thereof, according to the stipulation.
78 Hun, 516.
8 909. A commission, or copy of an order to take depositions, with the certiticates, returns, depositions, and exhibits thereto annexed, must remain on file in the office of the clerk, unless otherwise provided by the stipulation of the parties, or unless the court, by a special order, directs them to be filed in the office of another clerk. They are always open to t5e in
18 Hon, 516.
spection of the parties, either of whom is entitled to a copy of them, or of any part thereof, on payment of the fees allowed by law.
$910. Where it appears, by affidavit, that a deposition 38 Hup, 546 has been improperly or irregularly taken or returned ; or that 138 N. Y 368. the personal attendance of the witness, upon the trial, could have been procured, with due diligence, by a subpoena; or
9 App. Div that the attorney for either party has practiced any fraud, or unfair or overreaching conduct, to the prejudice of the adverse party, in the course of the proceeding; an order, for the suppression of the deposition, may be made by the court, upon the application of the party aggrieved, upen notice to the ad. verse party.
911. A deposition, taken and returned as prescribed ir 20 Misc. 509. this article, 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. It has the same effect, and no other, as the oral testimony of the witness would have; and an objection to the competener or credibility of the witness, or to the relevancy, or substantiai 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.
$912.. (Amd 1895, amendment to take effect January 1, 136 N.Y. 272. 1836.) Upon an application, made in the supreme court, the city court of the city of New York, or a county court, for a commission to be issued to a foreign country, if it satisfactorily appears, by affidavit, that the witness does not underst::dd the English language, the order for the commis. sion may, in the discretion of the court or judge, direct that written interrogatories annexed thereto, by way of direct or cross-examination, be framed in the English language, and also in a foreign langnage; that only the interrogatories frameıl in the foreign language be put to the witness; and that his answers be taken, and the certiticates be made out in the same language. Where: such an order is made, it must provide for the payment, by the applicant, to the adiverse party, of a reasonable sum, fixed therein, for the expense of procuring the interrogatories, in his behalf, to be translated. The judge, who settles the interrogatories, must settle them in the foreign language, and in the English lan uage; and for that purpose, he muy call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the applicant. When the deposi. tion is read in evidence, it, and the interrogatories, must be interpreted into the English language, as if the witness, Ling un ble to speak the English language, was personally present and testif: ing.
S 913. Letters rogatory may be issued from either of the coirts specified in the last section, in its discretion, in a case where a commission may be issued, as prescribed in this article, upon satisfactory proof, by affidavit, that there is good reason to believe that the ends of justice will be better promoted thereby, than by the issuing of a comunission ; notwithstanding that a commission can be executed, in the country to which they are sent. Letters rogatory can be issued only to examine one or more witnesses, upon written interrogatories, annexed thereto : which must be framed and settled, El the deposition i must be returned, as prescribed in this
135 N Y.272
article, with respect to the interrogatories annexed to a com-
subpoena witness. 915. Subpæna to witness.
919. Taking and return of dep. 916. Contents of subpæna.
osition. 917. Subpæna when no
920. Penalty for not appearing. mission is issued. 2 1:91, Con- § 911. In what cases deposition may be taken, [Am'd
1899, Amendment to take effect September 1, 1899.) A party to 30 Abb. N.O.
an action, suit, or special proceeding, civil or criminal, pend. 155 N. Y. 333. ing in a court without the state, either in the United States,
orin a foreign country, may obtain, by the special proceed ing prescribed in this article, the testimony of a witness, and, in connection therewith, the production of books and papers, within the state, to be used in the action, suit cr
special proceeding. 30 Abb. N.C. § 91. Subpoena to witness. (Am'd 1899, amendment to
tike effect September 1, 1899.] Where a commission to take 136 N.Y. 589. testimony, within the state, has been issued from the court 23 .
in which the action, suit, or special proceeding is pending ; or where a notice has been given, or any other proceeding has been taken, for the purpose of taking the testimony, within the state, pursuant to the laws of the state or country, wherein the court is located, or pursuant to the laws of the United States, if it is a court of the United States, the supreme court, or the county court, or a judge of either court, shall, in a proper case, on the presentation of a veri . tied petition issne a subpoena to the witness, commanding him to appear before the commissioner, named in the commission : or before a commissioner, within the state, for the state, ierritory, or foreign country, in which the notice was given, or the proceeding taken : or before the officer designated in the commission, notice or other paper, by his title of office; at a time and place specified in the subpoena, to testily, in the action, suit, or special proceeding. If the witness shall fail to obey the subpoena, or refuse to have an oath administered, or to testify, or to produce a book or paper pursuant to asubpoena, or to subscribe his deposition, the court or judge issuing the subpoena shall, if it is determined that a contempt has been committed, prescribe the punishment as in the case of a recalcitrant witness in the supreme court. The general rules of practice must prescribe rules for such proceedings.
$ 916. [Repealed by L. 1899, chap. 502, taking effect Sep. tmber 1, 1899.]
à 1391, Con. ol. Act. O Civ. Pro. *73.
917. [Repealed by L. 1899, chap. 502, taking effect Sep. lemb r 1, 1899.]
§ 918. [Repealed by L. 1899, chap. 5. 2, taking effect September 1, 1899.)
919. Taking and return of deposition. [Am'd 1899, amendm nt to take effect September 1, *1899.) The officer, or commissioner, before whom a witness appears, in a case specified in this article, must take down his testimony in writing, and must annex thereto copies of all books and papers produced or ench parts thereof as shall be required, and must certify and transmit it to the court in which the action, suit or special proceeding is pending, as the practice of that court requires.
$ 920. [Repealed by L. 1899, chap. 502, taking effect Septeinber 1, 1899.)
Documentary evidence. ARTICLE 1. Documentary evidence, as a substitute for oral testimony.
2. Proof of a document executed or remaining within the
State. 3. Proof of a document remaining in a court or public offico
of the United States, or executed or remaining without the State.
ARTICLE FIRST. DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTI
MONY. 921. Certain official certificates,
of foreign bills. evidence.
& 926. Affidavit of printer, etc.. 922. Certificate, etc., on file,
927. Id.; of service of notice. 923. Notary's certificate, evi- 928. Marriage certificate, evi dence.
dence. 924. Notary's protest and mem- 929. Book of foreign corpore orandum; when evi.
ation; when evidence. dence.
930. When a copy thereof is 925. Proof of presentment, etc.,
931. How copy to be verified. $ 921. Where the officer, to whom the legal custody of a paper belongs, certifies, under bis hand and official seal, that he has made diligent examination, in his office, for the paper, and that it cannot be found, the certificate is presumptive evidence of the facts so certified, as if the officer personally testified to the same
§ 922. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him, in the course of his official duty; and to file or deposit it in a public office of the State; the certificate or affidavit, so filed or deposited, or an exemplitied copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated, by
special provision of law. 31 Hun, 519. 2 N. Y. Supp.
S 923. [Am'd 1877.) The certificate of a notary public of
the State, under his hand and seal of office, of the present18 N.Y.Statement by him, for acceptance or payment, or of the protest, Rep. 1013. for non-acceptance or non-payment, of a promissory note or 10 Misc. 343. bill of exchange, or of the service of notice thereof on a party
to the note or bill; specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the post-office nearest thereto ; is presumptive evidence of the facts certified, unless the party, against whom it is offered, has served upon the adverse party, with his pleading, or, within ten days after joinder of an issue of fact, an original allidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill. A veritied answer is not sufficient as an affidavit, within the meaning of this section.
$ 924. In case of the death or insanity of a notary public of the State, or of his absence or removal, so that his personal attendance, or his testimony, cannot be procured, in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payment, therein stated; and a note or memorandum, personally made or signed by him, at the foot of a protest, or in a regular register of official acts, kept by him, is presumptive evidence that a notice of non-acceptance or non-payment was sent or delivered, at the time, and in the manner, stated in the note or memorandum.
$ 925. Proof of the presentment, for acceptance or pay. ment, of a promissory note or bill of exchange, payable in another State, or in a Territory, or foreign country, or of a protest of the note or bill, for non-acceptance, or non-payment, or of the service of notice thereof, on a party to the note or bill, may be made, in any manner authorized by the laws of the State, Territory, or county, where it was payable.
$ 926. [Am'd 1877.] The affidavit of the printer or publisher of a newspaper, published within the State, or of his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law cf the State, to be published in that newspaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and, also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed ; or to a case, where the mode of proving a publication is otherwise specially prescribed by law.
$ 927. Where it is necessary, upon the trial of an action, to prove the service of a notioe, an affidavit, showing the ser