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TITLE 3. tion, either orally, or upon interrogatories, to be agreed upon in like
The witness may be subpænaed to attend the examination, as upon a trial; and the judge or referee may take his deposition, as if an order had been made by the court, directing it to be so
taken. Manner of 8 880. The judge or referee taking a deposition, as prescribed in this
and returning article, must insert therein every answer or declaration of the person deposition, examined, which either party requires to be inserted. The deposition,
when completed, must be carefully read to and subscribed by the witness; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk; or, if no action is pending, in the office of the clerk of the county in which it was taken; together with the stipulation or order, under which 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. When to 8 881. The deposition, or a certified copy thereof, may be read in evibeidend.. dence by either party, at the trial of, or upon the assessment of dam
ages, 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 any 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.
S 882. But such a deposition, except that of a party, taken at the inability to 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 has been and is absent from the State, so that his attendance could not, with reasonable diligence, be compelled
by subpæna. Effect of 8 883. A deposition, so read in evidence, has the same effect, and no deposition. other, as the oral testimony of the witness would have; and an objec
tion 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. Original $ 884. The original affidavits, filed with such a deposition, or certiatidence: fied copies thereof, are presumptive evidence of the facts therein con
tained, to show a compliance with the provisions of this article. Deposition 8 885. Where a party intends to make or oppose a motion in a court to be used of record, other than a court specified in subdivision sixteen, seventeen,
eighteen or nineteen, of section two of this act, and it is necessary for him to have the affidavit or deposition of a person, not a party, to use upon the motion, the court, or a judge authorized to make an order, in the cause, may, in its or his discretion, make an order, appointing a referee to take the deposition of that person. The order must be founded upon proof, by affidavit, that the applicant intends to make the motion, or that notice of a motion has been given, which the applicant intends to oppose. The affidavit must specify the nature of the motion, and must show that the 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 subpænaed, 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.
8 886. Where a person to be examined, as prescribed in this article, where is a resident of the State, he shall not be required to attend in any
witness county, other than that in which he resides, or where he has an office for compelled the regular transaction of business, in person. Where he is not a res- to attend. ident, he shall not be required to attend in any other county, than that wherein he is served with a subpæna, unless, for special reasons, stated in the affidavit, the order otherwise directs.
DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE.
SECTION 887, 888. When commission to issue, etc.
889. How and upon what terms granted.
8 887. In a case specified in the next section, where it appears, by When comaffidavit, on the application of either party, that the testimony of one mission to
*So in the original.
or more witnesses, or of an adverse party, or of a co-plaintiff or co-defendant, not within the State, is material to the applicant; a commission may be issued, to one or more competent persons, named therein; authorizing them, or any one of them, to examine the witness or witnesses named therein, under oath, upon the interrogatories annexed to the commission; to take and certify the deposition of each witness; and to return the same, and the commission, according to the directions given in or with the commission.
8 888. Such a commission may be issued, in either of the following
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 against 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. Where an appeal from a final judgment, rendered in the supreme court, a superior city court, the marine 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 defence of the action, if a new trial is granted.
4. Where the application is made before the joinder of the issue, in an action brought in either of the courts, specified in the last subdivision ; 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 cannot be taken.
5. Where an issue of fact has been joined, in an action pending in a court of record, and the testimony is material to the applicant, in the prosecution or defence thereof.
8 889. In a case specified in subdivision third of the last section, if upon what
the appeal has been taken to another court, the application must be granted.
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 must 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.
§ 890. Where the order is made by a judge, out of court, it must be judge. entered in the office of the clerk. It shall be granted, only in a case,
where the court would grant it, and upon the same terms; and it is Interroga
subject to the control of the court.
§ 891. Unless the interrogatories, to be annexed to the commission, settled.
Order made by
are settled by consent of the parties, they must be settled, upon notice, by a judge of the court, or, in the supreme court, by the county judge of the county, where the action is triable, as prescribed in the general rules of practice.
8 892. The interrogatories, when settled, must be annexed to the com- 1.1.; to be mission. Either party must be allowed to insert therein any question, airections
annexed pertinent to the issue, which he proposes. Unless the parties stipulate for return. 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.
8 893. Where an issue of fact, joined in an action, is pending in the Commissupreme court, a superior city court, the marine court of the city of sion to ex: New York, or a county court, the parties may stipulate, in writing, or oral ques 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 taken 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 questions, and one or more witnesses, designated in the order, upon written interrogatories.
8 894. Where an issue of fact, joined in an action, is pending in When open either of the courts specified in the last section, the parties may stipulat in writing, or the court, or a judge thereof, or, in the supreme issue, or
depositions court, the county judge of the county where the action is triable, may, may be in its or his discretion, upon the application of either party, and upon taken. satisfactory 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 issue, or that depositions be taken, as prescribed in the following sections of this article.
$ 895. The last two sections are not applicable, where the adverse Last two party is an infant, or the committee of a person judicially declared to sections be incapable of managing his affairs, by reason of lunacy, idiocy, or cable to in habitual drunkenness; or where the testimony is to be taken elsewhere fantasie
or foreign than in the United States, or in Canada.
8 896. Where a commission is issued, to take testimony without Notice of written interrogatories, as prescribed in section eight hundred and examinan ninety-three or section eight hundred and ninety-four of this act, notice oral ques. of the time and place of the examination of a witness, by virtue thereof, tions. naming the witness, must be served as prescribed in section eight hundred and ninety-nine of this act.
8 897. An open commission must be directed to one or more persons, Open comnamed therein, and must authorize them, or any one of them, to exam- mission. ine 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 produced to take and certify the deposition of each witness so examined; and to return the same, and the commission, 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 recting de. the time within which they must be taken, and the manner in which positions to 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 giving notice, as the court or judge deems 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, returned as
prescribed in the following sections of this article. Before § 899. A deposition may be taken, pursuant to such an order, before whom de positions a person mutually agreed upon by the parties, or a chancellor, or a judge may be taken;
of a court of record, or the mayor or other chief magistrate of a city, or notice of a justice of the peace of the State or Territory, where the witness is; taking.
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 of the attorney for the adverse party, and the place where the deposition is to be
taken. How depo. $ 900. Upon the examination of a witness, without written inter
rogatories, 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 taken down, ås 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 commission or order otherwise directs, the person, appearing for either party, may ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specified at the time of examination. A copy of this section must be annexed to each commission to take testimony without written interrogatories, and to each certified copy of an order to take a deposi
tion. Commis. § 901. The person, to whom a commission is directed, or before whom
a deposition is taken, unless otherwise expressly directed in the comtake depo- mission, 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 returned.
or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respecting 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 witness, 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, sub
sion or order to
how executed and