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ART. 2. scribed 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; he 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 next section.
A copy of this and of the next section must be annexed to each commission, or order to take depositions, authorized by this article.
8 902. The commissioner or other person, before whom one or more Certificate depositions are taken, must subscribe, and annex to each deposition, a tion. certificate, substantially in the following form, the blanks being properly “State" (or “ Territory") " of "County" (or "parish") " of
do certify that the witness, personally appeared before me on the
at o'clock in the noon,
at the , in the State" (or “ Territory")" of 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 did, 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
appeared in behalf of the
$ 903. The certificate, specified in the last section, is a sufficient Certificate return to a commission.
S 904. If the packet, specified in section nine hundred and one of Return by this act, is delivered to an agent, he must deliver it to the clerk, to
agent. 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 commissioner, or the person who took the deposition, and that it has not been opened or altered, since he so received it.
S 905. If the agent is dead, or, from sickness or other casualty, is If agent is unable to deliver the packet personally, as prescribed in the last sec- dead. tion, it must be received, by the clerk or judge, from the hands of any other person, upon the latter making an 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
a suficieni return.
Where return to be
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 deposition. Filing de 8 906. The clerk or judge, who receives and opens the packet, as
, etc., so re- prescribed in the last two sections, must indorse thereupon, and sign,
a note of the time of the receipt and opening 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 sign, a like note of the time of the receipt and
opening thereof, and immediately file it in his office. Commis.
8 908. A commission may issue, or an order to take depositions may sion, etc., by consent. 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 execution and return thereof, according to the stipulation.
§ 909. A commission, or copy of an order to take depositions, with kept; par. the certificates, returns, depositions, and exhibits thereto annexed, inspect it,
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 the inspection 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.
8 910. Where it appears, by affidavit, that a deposition has been may be sup. improperly or irregularly taken or returned; or that the personal pressed.
attendance of the witness, upon the trial, could have been procured, with due diligence, by a subpæna; or 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 proceedings; an order, for the suppression of the deposition, may be made by the court, upon the application of the party aggrieved, upon notice to the
adverse party. Deposi- S 911. A deposition, taken and returned as prescribed in this article, tion, etc., evidence. 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 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. When in
8 912. Upon an application, made in the supreme court, a superior terrogato. ries and city court, the marine court of the city of New-York, or a county court, deposition for a commission to be issued to a foreign country, if it satisfactorily
a foreign appears, by affidavit, that the witness does not understand the English language.
language, the order for the commission may, in the discretion of the court or judge, direct that written interrogatories annexed thereto, by way of direct and cross-examination, be framed in the English language, and also in a foreign language; that only the interrogatories framed in the foreign language be put to the witness; and that his answers be taken, and the certificates be made out, in the same lan
guage. Where such an order is made, it must provide for the payment, by the applicant, to the adverse 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 language; and, for that purpose, he may call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the appli
When the deposition is read in evidence, it, and the interrogatories, must be interpreted into the English language, as if the witness, being unable to speak the English language, was personally present and testifying
8 913. Letters rogatory may be issued from either of the courts spe- Letters ro cified in the last section, in its discretion, in a case where a commission gatory. 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 commission; 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, and the depositions must be returned, as prescribed in this article, with respect to the interrogatories annexed to a commission, and the depositions taken thereunder.
DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE.
915. Subpæna to witness.
920. Penalty for not appearing. 8 914. A party to an action, suit, or special proceeding, civil or crim- In what inal, pending in a court without the State, either in the United States, cases depo.
sition or in a foreigu country, may obtain, in the manner prescribed in this be taken. article, the testimony of a witnees within the State, to be used in the action, suit, or special proceeding.
8 915. Where a commission to take testimony, within the State, has Subpæna been issued from the court, 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 commission, notice, or other paper, authorizing the testimony to be taken, may be presented, in behalf of the party desiring to obtain it, to a justice of the supreme court, or a county judge, with proof, by affidavit, that the testimony of the witness is material to the party. The judge must thereupon issue a subpæna to the witness, commanding him
to appear before the commissioner named in the commission; or before a commissioner, within the State, for the State, Territory, 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 subpæna, to testify in the action, suit, or special
proceeding. Contents of S 916. The place, where the witness is commanded to attend, must subpæna.
be within the county in which he resides or sojourns; or, if it is in another county, not more than forty miles distance from his residence, or
the place of his sojourn. Subpæna, 8 917. Where an action, suit, or special proceeding is pending in a when no commis. court of another State, or of a Territory, or of the United States, and sion is issued.
proof is made, by affidavit, to the satisfaction of a justice of the supreme court, or a county judge, as follows:
1. That a person, residing or sojourning within the state, is a material witness for either party.
2. That a commission, to take the testimony of the witness, has not been issued.
3. That, according to the course and practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken, is authorized, to be received in evidence on the trial or hearing.
The judge must issue a subpæna, commanding the witness to appear before him, at a specified time, and at a place within the county in which the witness resides or sojourns, to testify in the action, suit, or
special proceeding, Justice of
8 918. Where proof is made, by affidavit or otherwise, to the satisfacmay sub
tion of a justice of the peace : pæna wit
1. That a civil action, suit, or special proceeding is pending in a court of another State, or of a Territory, or of the United States.
2. That a person, residing or sojourning in the town or city, in which the justice resides, is a material witness for either party,
3. That according to the practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken, is authorized, to be received in evidence on the trial or hearing.
The justice must issue a subpæna, commanding the witness to appear before him, at a specified time, and at a place within the town or city, in which the witness resides or sojourns, to testify in the action, suit or
special proceeding. Taking and 8 919. The officer before whom a witness appears, in a case specified deposition. in this article, must take down his testimony in writing; and must cer
tify and transmit it to the court, in which the action, suit or special
proceeding is pending, as the practice of that court requires. Penalty for 8 920. A person, who fails to appear, at the time and place specified not appear.
in a subpæna, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe his deposition, when correctly taken down; is liable to the penalties, which would be incurred in a like case, if he was subpænaed to attend the trial of an action in a justices court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial.
ARTICLB 1. Documentary evidence, as a substitute for oral testimony.
2. Proof of a document executed or remaining within the State.
States, or executed or remaining without the State.
DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY
SECTION 921. Certain official certificates, evidence.
922. Certificate, etc., on file, evidence.
931. How copy to be verified. $ 921. Where the officer, to whom the legal custody of a paper Certain of belongs, certifies, under his hand and official seal, that he has made
ficates, evi. diligent examination, in his office, for the paper, and that it cannot be dence. 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 Certificate, provision of law, to make a certificate or an affidavit, touching an act evidence. 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 exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated, by special provision of law.
S 923. The certificate of a notary public of the State, under his hand Notary's and seal of office, of the presentment by him, for acceptance or pay- evidence. ment, or of the protest, for non-acceptance or non-payment, of a promissory note or 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 certi- fied, 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 affidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit, within the meaning of this section.
8 924. In case of the death or insanity of a notary public of the Notary's State, or of his absence or removal, so that his personal attendance, or
memoranhis testimony, cannot be procured, in any mode prescribed by law, his dum; when 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 memoran