ARTICLE FIRST. DEPOSITIONS, TAKEN AND TO BE USED WITHIN THE STATE. SEC. 870. Deposition of a party, etc. 871. Deposition of a witness not a party. 873. Order for examination. 874. Punishment for disobeying order. 875. Service of order, etc, 876. Deposition when and where to be taken. 879. Deposition by consent. 880. Manner of taking and returning deposition. 881. When to be read in evidence. 882. Proof of witness's inability to attend. 883. Effect of deposition. 884. Original affidavits, evidence. 885. Deposition to be used on motion. 886. Where witness may be compelled to attend. $870. [Amended, 1878.] Depositions of party, etc.— The deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action about to be brought in such a court other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or codefendant at any time before the trial as prescribed in this article. See Laws 1878, ch.299; Co. Proc., part of 3390, 391, 392 and 397, People v. Mut. Gas-light Co., 17 Alb. L. J. 71 Phoenix e. Dupuy, 2 Abb. N. C. 146; Brandon Mf. Co.v. Pettengill, id. 162. § 871. [Amended, 1877.] Deposition of a witness not a party. The deposition of a person not a party, whose testimony is material and necessary to a party 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 a court, by a person other than the person to be examined, may also be taken, as prescribed in this article. 2 R. 8. 391, portions of 1, 2, 33 and 34 (2 Edm. 407, 414, 415). Suydam v. Suydam, 11 How. 519. §872. [Amended, 1879.] Application; contents of affidavit. The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pending; or, if it is pending in the supreme court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the supreme court, or of a superior city court, or to a county judge; an affi lavit, setting forth as follows: 1. The names and residences of all the parties to the action, and whether or not they have appeared; and, if either of them has appeared by attorney, the name, and the residence 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 application is made by the defendant before answer, or by either party after answer, the nature of the defense.(1) 3. If no action is pending, the nature of the controversy which is expected to be the subject thereof. (2) 4. The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defence of such action, and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business. 5. If an action is pending, that the person to be examined is about to depart from the State;3) or that he is so sick or infirm.(4) as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special circumstances exist, which render it proper that he should be examined as prescribed in this article. But this subdivision does not apply to a case, where the person to be examined is a 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, that each is of full age, and so resident or sojourning, or has such an office; also the circumstances which render it necessary for the protection of the applicant's rights, that the witness's testimony should be perpetuated. 7. [Amended, 1880.] Any other fact necessary to show that the case comes within one of the last two sections, and if the party sought to be examined is a corporation, the affidavit 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 inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers. Taken from 2 R. S. 391, 2 and 34: except subd. 5, 6 and part of subd. 7, which are new. Glenney v. Stedwell, 64 N. Y. 120; Lang . Brown, 6 Hun, 256; Greene v. Herder, 30 How. 210; Sheldon v. Wood, 2 Bosw. 267. (1) Matter of Bryan, 3 Abb. N. C. 289. (2) Ludewig e.Pariser, 4 Abb. N. C. 246: 54 How. 493; Beach e. Mayor, 4 Abb. N. C. 236; 14 Hun, 79, rev'g, 3 Abb. N. C. 113 Dunham v. Ins. Co., 41 N. Y. Supr. 387; 6 How. 210; 6 *See ante, p. iii. Abb. N. C. 70. (3) Baker v. Stevens, 10 Abb. N. S. 1; Greer v. Allen, 15 Hun, 432; Durant v. Abendroth, 1 Law Bulletin, 3; Robertson v. Russell, 20 Hun, 243; Walters v. Bushwick, etc., 8 Week. Dig. 290. (4) Hoyt r. Brisbin, 1 Wend. 27; Chapin v. Thompson, 16 Hun, 53; Wesheim e. Page, 10 Week. Dig. 26. (5) Ludewig v. Pariser, 4 Abb. N. C. 246; 54 How. 498; Robertson v. Russell, 20 Hun, 243; Corbette. DeComeau, 44 N. Y. Supr. 306: Tennel v. Photo Plate Co., 1 Law Bulletin, 38; Greer e. Allen, 15 Hun, 342; Simmons & Hudson, 4 Abb. N. C. 247 ; Smyth . McGovern, 7 Week. Dig. 480; Batheson . Sanford, 45 N. Y. Supr. 127. (6) Guyon v. Lewis, 7 Wend. 26. (7) Jackson v. Perkins, 2 Wend. 308; Clark v. Dibble, 16 id.602. 873. [Amended, 1879.] Order for examination. — The judge to whom such an affidavit is presented, must grant an order for the examination, if an action is pending; if no action is pending, he must grant it, if there is reasonable ground to believe that an action will be brought as stated in the affidavit, and that the application is made in good faith to preserve the expected testimony; otherwise he must dismiss the application. Where the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined. The order must require the party or person to be examined to appear before the judge, or, except where the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within 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.* Taken from 2 R. S. 391, 3, and the last clause of 34. Thauler. Ritter, 13 Abb. N. S. 439; Todd v. Lambden, 41 How. 20; s. c., 10 Abb. N. 8. 389; Jackson v. Perkins, 2 Wend. 30s; Raney v. Weed, 1 Barb. 221. $874. [Amended, 1877.] Punishment for disobeying order. If the party or person so served fails to obey the order, his attendance may be compelled, and he may be punished in like manner, and the proceedings thereon are the same, as if he failed to obey a subpoena, 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. Id., 10. Gaughe v. Laroche, 14 How, 451; Van Rensselaer v. Tubbs, 31 id. 193; Woods v. De Figantere, 16 Abb. 159. 875. [Amended, 1879.] Service of order, etc. — A copy of the order, and of the affidavit 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. New, Plummer v. Belden, 8 Hun, 455. See ante, p. iii. 876. [Amended, 1879.] Examination of adverse party.-Upon proof, by affidavit, that service of a copy of the order and of the amidavit 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 examination to another day, and to another place, within the same county. Sections eight hundred and fiftysix, eight hundred and fifty-seven and eight hundred and fifty-eight of this act apply to the examination of a party or a person expected to be an adverse party, taken as prescribed in this article. 2 R. S. 392, 25, and id. 399, 36. McDonald . Garrison, 18 How. 249; 8. c., 9 Abb. 34; Todd v. Lambden, 41 How. 230; s. c., 10 Abb. N. S. 383; Mudge r. Gilbert, 43 How. 219. 877. [Repealed, 1877.] $879. Deposition by consent. The parties to an action may stipulate, in writing, that the deposition of a competent witness, to be used therein, may be taken before a judge or referee, at a time and place specified in the stipulation, either orally, or upon interrogatories, to be agreed upon in like manner. The witness may be subpoenaed 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. L. 1847, ch. 280, 22 78 and 79, am'd. 880. [Amended, 1879.] Rules for examination of party or expected party. Manner of taking and returning depositions. Refusal of persons examined to answer.- The examination of a party, or an expected party, is subject to the same rules as if he was 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. (1) The deposition, when completed, must be carefully read to and subscribed by the person examined; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk (2) 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. 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. * 2 R. S. 392, 26, and part of 25 (2 Edm. 408); and id. 399, 37 (2 Edm. 415). (1) McDonald v. Garrison, 18 How. 249; s. c., 9 Abb. 31. (2) Burdell v. Burdell, I Duer, 625; s. c., 11 N. Y. Leg. Obs. 189; Bank of Silver Creek v. Browning, 16 Abb. 272. $881. When to be read in evidence. - The deposition, or a certified copy thereof, may be read in evidence by either party, at the trial of, or upon the assess *See ante, p. ill. ment 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 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. 2 R. S. 392, part of 7, and id. 399, part of 2 39. $882. Proof of witness's inability to attend. — But such a deposition, except that of a party, taken at the 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 subpœna. The remainder of id.. 3 7 and 39. Johnston v. Bush, 57 N. Y. 633; Carman r. Kelly, 5 Hun, 283; McArthur . Soule, id. 63; Sheldon v. Wood, 2 Bosw. 267: McArthur v. Soule, 5 Hun, 63; Nixon v. Palmer, 10 Barb. 175; 3 Hill, 295; Carman r. Kelly, 5 Hun, 283; Gardner v. Bennett, 38 Supr. Ct. (6 J. & S.) 197; Guyon v. Lewis, 7 Wend. 29; Clark v. Dib ble, 16 d. 603: Jackson v. Rice, 3 id. 150; Fry e. Benuett, 1 Abb. 289; s. c., 1 Duer, 247; Brouner v. Frauenthal, 37 N. Y. 166; Donnell v. Walsh, 6 Bosw. 621; s. c., 33 N. Y. 43; Roberts v. Carter, 28 Barb. 462; s. c., 17 How. 521. 883. Effect of deposition. A deposition, so read in evidence, has the same effect, and no other, as the oral testimony of the witness would have; and an ob jection 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. Id., 9 and 40, am'd. See Vilmar v. Schall, 61 N. Y. 564; Sturm v. Atlantic Mut. L. Ins. Co., 63 id. 77; Jordan v. Jordan, 3 T. & C. 269; Barry v. Galvin, 37 How. 310. § 884. Original affidavits, evidence. - The original affidavits, filed with such a deposition, or certified copies thereof, are presumptive evidence of the facts therein contained, to show a compliance with the provisions of this article. Id., 38. |