JUSTICE'S MANUAL son, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication. When testimony on former trial admissible. When husband and wife not [Substituted for Co. Proc., § 399. The essential changes are the following. The introductory clause, "upon the trial," etc., excludes interlocutory proceedings. The words, "in his own behalf or interest, or in behalf of the party succeeding to his title or interest," change the rule which was established under the former statute, that it made no difference, upon the question of competency, whether the witness was called in his own or in any other person's behalf or interest. Richardson v. Warner, 13 Hun, 13; Gifford v. Sackett, 15 Hun, 79; Alexander v. Dutcher, 70 N. Y., 385. For other recent cases, relating to competency under this clause, applicable to this section as it now stands, see Allis v. Stafford, 14 Hun, 418; Whitehead v. Smith, id., 531; Kraushaar v. Meyer, 72 N. Y., 602; Children's Aid Soc. v. Loveridge, 70 N. Y., 387; Waver v. Waver, 15 Hun, 277; Nearpass v. Gilman, 16 Hun, 121. The express limitation of the provision, to the case where the person represented by the adverse party is deceased, or insane, "at the time of such examination," has been omitted. It is immaterial; otherwise, a collateral issue, respecting the sanity of the party represented by a committee, might be tried. The remedy, where an insane party is restored to reason, would obviously be by motion.] § 830. [Inserted, 1879.] Where a party has died since the trial of an action, on (*) the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. [This section was inserted in 1879, in place of a section stricken out in 1878.] § 831. [Amended, 1877, 1879 and 1880, ch. 149.] A husband or a competent wife is not competent to testify against the other, upon the trial of an witnesses. When competent. action, or the hearing upon the merits, of a special proceeding, founded upon an allegation of adultery; except to prove the marriage. 216 A husband or wife shall not be compelled, or without consent of the other if living, allowed, to disclose a confidential communication, made by one to the other, during the marriage. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. [The first sentence was stricken out in 1879, and restored in 1880. This section, as now framed, and § 828 remove all restrictions upon a husband's or wife's competency in a civil action, except as declared in this section, and §§ 829 and 830.] PART II. for crime, not to witness; viction 832. [Amended, 1879.] A person, who has been convicted of a Conviction crime or misdemeanor is, notwithstanding, a competent witness in exclude a civil or criminal action or special proceeding; but the conviction how conmay be proved, for the purpose of affecting the weight of his testi- proved. mony, either by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question. [This section is new. It abolishes a relic of the old rules disqualifying witnesses, which is contrary to the spirit of modern legislation, upon the subject, in this State, and which has been abolished in England, for fully a third of a century. It seems now to be the settled theory, in regard to the competency of witnesses, that the court or jury should have all the light thrown upon the facts, which it is possible to procure, leaving the tribunal itself to judge, what degree of credence to give to the evidence offered. The rendering of felons incompetent witnesses seems to have been based, partly upon the idea that their testimony is wholly unreliable and unsafe, and partly upon the notion that it is a proper punishment for their crimes. Upon neither theory, can it be justified. There is no more reason to apprehend that persons, who have been convicted of felony, will, as a class, be guilty of wilful perjury, especially in a matter in which they have no interest, than there is, to apprehend the same consequences, from an admission of many other classes of persons, who are now competent witnesses; and not so much as in the case of the persons, from whom the disability has been recently removed. The idea that the disqualification is a proper punishment for crime, is even more illogical. It tends, indeed, to disgrace the criminal; but, in most cases, the weight of the punishment falls, not upon him, but upon the innocent party who happens to be in a position to need his testimony. It has been held that, under the act of 1869 (ch. 678), the defendant in an indictment is a competent witness in his own behalf, notwithstanding that he has served out a term in the State prison, upon a former conviction JUSTICE'S It MANUAL of felony. Delamater v. People, 5 Alb. L. J., 122. Now that interested persons, parties, and their wives, or husbands, and even persons charged with crime, are competent witnesses, consistency seems to demand that the only remaining disability should be swept away. was swept away, in England, in 1843, by Lord Denman's act, together with the disqualification on the ground of interest; although a subsequent statute creates an exception, which prevents a person, accused of crime, from testifying in his own behalf, upon the trial. See 6 and 7 Vict., c. 85; 14 and 15 Vict., c. 99, §§ 2 and 3. The reform has been cordially approved of, by the subsequent text writers. See Taylor on Evidence, 6th ed. (1872), 1165, 1171, 1177. Best on Evidence, American edition (1875), vol. 1, 263, 264. Clergy men, etc., close con This section allows the conviction to be proved upon cross-examination, in order that the opposing party may more readily exhibit the witness to the jury.] § 833. A clergyman, or other minister of any religion, shall not not to dis- be allowed to disclose a confession made to him, in his professional fessions. character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. Physicians not to dis fessional [2 R. S., 406, Part 3, ch. 7, tit. 3, § 72 (3 R. S., 5th ed., 690; 2 Edm., 422), amended so as to include a minister of any religion, the original being confined to a minister of the gospel, or a priest.] § 834. A person, duly authorized to practice physic or surgery, close pro- shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity. informa tion. Attorneys and coun [Id., § 73. See Dilleber v. Home L. Ins. Co., 69 N. Y., 256; Babcock v. The People, 15 Hun, 347; Grattan v. Nat. L. Ins. Co., id., 74.] § 835. An attorney or counsellor at law shall not be allowed to sellors not disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment. to communi cations. Application of the last three sections. [New, as a statutory enactment, but in accordance with the common law rule. See Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz, 45 id., 51; Yates v. Olmsted, 56 id., 632; and numerous other cases. See, also, the following cases, decided since the passage of this act, but upon the common law rule. Hebbard v. Haughian, 70 N. Y., 54; Armstrong v. The People, id., 38; Bacon v. Frisbie, 15 Hun, 26; and Sheridan v. Houghton, 16 id., 628.] § 836. [Amended, 1877.] The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the 'client. [New. The case of Johnson v. Johnson, 4 Paige, 460; S. C., on appeal, 14 Wend., 637, has been construed, by some, to mean that the sections of the R. S., revised in §§ 823 and 834, ante, do not apply where there is a default. See, also, Hunn v. Hunn, 1 N. Y. Sup. Ot. (T. & C.), 479. This section is designed to prevent such a construction, or any other which will allow a confidential communication to be disclosed, except where the person making it expressly waives the protection of the statute.] PART II. witness not or cused from testi fying. 837. A competent witness shall not be excused from answering When a relevant question, on the ground only that the answer may tend to establish the fact, that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness. [2 R. S., 405, Part 3, ch. 7, tit. 3, § 71 (3 R. S., 5th ed., 690; 2 Edm., 422).] of party 838. The testimony of a party, taken at the instance of the Evidence adverse party, orally or by deposition, may be rebutted by other matte evidence. [From Co. Proc., § 393.] § 839. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction, in which he was the authorized agent of the corporation. [2 R. S., 407, Part 3, ch. 7, tit. 3, § 80 (3 R. S., 5th ed., 692; 2 Edm., 424).] rebutted. Admission ber of by mem согрогаtion. sumptive evidence or con 840. [Amended, 1877.] A seal upon an executory instrument, Seal, prehereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. [This section is a substitute for 2 R. S., 406, Part 3, ch. 7, tit. 3, § 77 (3 R. S., 5th ed., 691; 2 Edm., 423), which is as follows: 877. In every action upon a sealed instrument, and where a setoff is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted, in the same manner and to the same extent, as if such instrument were not sealed". It will be seen that the provision quoted allows the presumption of consideration, afforded by a seal, to be rebutted, only in cases where sideration JUSTICE'S Presumption of death cases. an action is brought upon a sealed instrument, or where a set-off is founded upon such an instrument. It was held, in Calkins v. Long, 22 Barb., 97, that it does not apply to an action brought by a mortgagor, to compel the cancelling of a mortgage made without consideration. There are many other cases, where a sealed instrument may be made the foundation of a claim or defence, to which it would not apply; and justice seems to require that its policy should be extended. The only cases, where a seal should be conclusive, are saved by the word, "executory ", in this section, such as releases.] § 841. A person, upon whose life an estate in real property dein certain pends, who remains without the United States, or absents himself, in the State or elsewhere, for seven years together, is presumed to be dead, in an action or special proceeding, concerning the property, in which his death comes in question, unless it is affirmatively proved that he was alive within that time. Before whom oaths and affidavits may be taken. [1 R. S., 749, Part 2, ch. 1, tit. 5, § 6 (3 R. S., 5th ed., 39; 1 Edm., 700), amended by substituting the words, "without the United States," for "beyond sea," as the effect of the latter expression is totally different in this country, from that which obtains where it had its origin. See McCartee v. Camel, 1 Barb. Ch. R., 455.] ARTICLE SECOND. ADMINISTRATION OF AN OATH OR AFFIRMATION. § 842. An oath or affidavit, required or authorized by law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy-clerk, of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act; and, when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person. [2 R. S., 284, Part 3, ch. 3, tit. 2, § 49 (3 R. S., 5th ed., 474; 2 Edm., 294), amended by striking out "any circuit judge, supreme court commissioner ", and the clause, authorizing the justices of the supreme court to appoint commissioners, and by adding judges, clerks and deputy-clerks of courts not of record, and the officers enumerated between the word, "court ", and the words, "commissioner of deeds". These officers have been authorized, by various statutes, to administer oaths, except mayors, surrogates' clerks, deputy county clerks, and (in some instances) deputy-clerks of courts of record. L. 1863, ch. 508, |