Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 W nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCH06l By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ■y--.... Cornell University Library KFN6030.W28 Law 13] evidence under the code of civil 3 1924 022 785 483 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022785483 / LAW OF EVIDENCE UNDBB THB Code of Civil Procedure OF THB STATE OF NEW YORK. WITH FORMS. A' BY HENRY E. WARNER, COUNSELOB AT LAW. ALBANY, N. Y. . WEARE C. LITTLE &. CO., LAW BOOK'SELLEES AND PUBLISHERS. 1887. Entered, according to the Act of Congress, In the year one thousand eight hundred and eighty-seven. By henry E. WAKNER, In the olHce of the Librarian of Congress at Washington. BURDICK & TAYLOR, PEINTBBS, 481 BROADWAY, ALBANY, N. Y. TO THE HON. ISAAC S. SIGNOR, COUNTY ffUDGE OF ORLEANS COUNTY, TO WHOM I AM INDEBTED FOB MANY VALUABLE SUGGESTIONS IN THE PBBPAEATION OF THIS WOEK, AND AS A TOKEN OF ESTEEM, THIS VOLUME IS RBSPBOTFULLT DEDICATED. PREFACE This work has been prepared with a view of giving the law of evidence under the Code of Civil Procedure as it is at the present time. The numerous and constantly increasing decisions appli- cable thereto, and their importance, require that they be collated in such a manner as to render them easy of access and reference. The amendments to the various sections concerning the law of evidence that have been enacted since their incor- poration into the Code of Civil Procedure, though often slight, have been indicated, with the year in which such amendment was passed, as an aid to the practitioner. Every case found, of practical value, which could in any way serve to illustrate or explain these sections of the Code, has been included, and every effort has been made to give references to all the latest decisions. A summary has been given of a few sections which have not been the subject of Judicial interpretation to such an extent as to warrant an extended review. It has been thought advisable to give the year of each vi Peepaoe. decision, in the Table of Cases, showing at once the value of each case to the section to which it pertains. Having made a personal examination of each case, and given special attention to make the work as accurate as possible, if it shall be of some use to the profession, I shall be content. HENKY E. WARNER. Albion, N. Y., September, 1887. CONTENTS. Page Preface v Table of Cases xv Competency of Witnesses; Evidence in Particular Cases 1-104 Witness not excluded by reason of Interest 1 How limited 3 Parties 4 Husband and wife 4 Contents of section 829 -. 6-10 When party, etc. , cannot be examined 10-67 Testimony after death of party 68 Husband and wife 70 Common law rule 71 Under subsequent enactments 71 Under Code of Civil Procedure 73 Conviction for Crime 75 Clergymen, etc., not to disclose confessions 77, 93 Physicians not to disclose professional information 78 Construction of statute 79 What evidence excluded 79 Who has the right to object 83 Who may waive protection 83, 93 Attorneys not to disclose communications 85 Construction of statute 85 What communications excluded 88 Who may object 93 Who may waive protection 93, 95 When not excused from testifying 94 Evidence may be rebutted 99 Admission by member of corporation 100 Seal, presumptive evidence of consideration 101 Presumption of death 103 viii Law of Evidence. Page. Oath of Affirmation : 105-114 Before whom taken 105 Without the state '. 108 Mode of swearing 110 Gospels dispensed with , Ill When aiHrmation made 112 Other modes 113 Persons not Christians 113 Court may examine witness 113 Swearing falsely 114 SUBPCBNA 115-131 Mode of serving 115 Penalty for disobedience 117 By whom issued 130 Imprisonment of witness 132 Contents of warrant 128 How warrant executed 128 Issued by justice of the peace 124 Exemption from arrest 124 Discharge from arrest 136 By whom discharged 126 When arrest void 137 Liability of sheriff 137 Provisions applicable to judgments 138 Records not to be removed 128 Books of account 139 Books, etc., of corporation 180 When personal attendance required 131 Deposition, Taken and to be Used within the State 182-185 Party 132. General provisions 133 Who may be examined 134 Examination before joinder of issue 136 Establishment of agency 138 Where facts tend to show crime or misdemeanor 138 Inspection of person 189 Inspection of machine 140 Discovery ot books and papers 140 Contents. ix Page. Pending trial 141 Second examination 143 Delay 143 Perpetuation of testimony 143 Expected party 143 Witness 143 Contents of Application 144 General Provisions 146 Subdivision one 148 two...! 148 three ;.. 150 four 150 Name of person 150 Material and necessary 151 Sources of information 153 Wlien order not granted 153 Intention to use at trial . 156 Subdivision five 157 six 158 seven 159 Order for examination 160 Examination, wlien and how far, matter of right 161 Court may limit examination 163 Service 164 May be vacated 164 Form 165 Penalty for disobeying 166 Service of order 167 Examination of adverse party 168 Party confined in prison 169 By consent 170 Kules for examination 170 Manner of taking and returning 170 Refusal to answer 170 When read in evidence 173 Proof of inability to attend 174 Effect 177 To be used on motion 178 Who may be examined 179 X Law of Evidence. Page. Application for order 180 Refusal to make affidavit 183 Notice 182 Order 182 Vacation of order 182 Examination 183 Attendance where required 184 Deposition Taken without the Statb, for Use within the State, 186-220 Where commission to issue 186 On what terms granted 191 Order by judge 194 Settlement of interrogatories 194 Direction for return 195 Examination wholly or partly upon oral questions 197 Issuance of open commission . . . 198 Adverse party, infant or committee 199 Notice of examination 199 Open commission 200 Order for taking deposition 200 Before whom taken 201 How taken .- 201 How executed and returned 302 Certificate of execution 208 sufficient return 208 Return by agent 209 Sickness or death of agent 209 Filing returned deposition 210 Commission by consent 210 Where return kept 211 Suppression of deposition 211 May be read in evidence 215 Interrogatories and deposition in foreign language 219 Letters rogatory 220 Deposition, Taken within the State fok Use without the State, 221-225 In what cases taken 221 Subposna to witness 23]^ Contents of subpoBna 323 Subpoena, when no commission issued ... 333 Contents. xi Page. Subpoena by justice of the peace 223 Taking and return 234 Penalty for not appearing 234 Documentary Evidence 326-263 Official certificates 326 Certificate on tile 227 Notary's certificate 228 protest and memorandum 232 Proof of presentment, etc., of foreign bills 234 Affidavit of printer 234 service of notice 335 Marriage certificate 235 Book of foreign corporation 236 Copy thereof evidence 236 Copy to be verified 337- Proof of statutes, etc 333 Copies of records and papers in certain offices 338 filed with town clerk 34I Conveyance, when acknowledged, etc. , evidence 343 Record or transcript of record 343 May be rebutted 343 What instruments may be acknowledged 343 Justice's docket and transcript 244 Transcript from justice's docket 344 Other proof of proceedings before justice 245 Ordinances, etc., of cities, villages, etc 246 Printed copies of laws of another state 348 Copies of records of United States courts 251 documents on file in departments of [Jnited States 252 bill of sale, etc., of vessels '. 253 Conveyance of land without the state 254 Transcript of justice's docket of adjoining state 255 how authenticated 255 Other proof 256 May be rebutted 256 Authentication of copies of records of foreign courts 256 Other proof 358 No declaration of effect of record of foreign country 258 Authentication of documents of foreign countries 259 xii Law of Evidence. Page. Form of certificate to copies 260 Certificate must be sealed 260 Public or corporate seal may be stamped 261 Surrogates, clerks, etc., to search files, and to certify 262 Saving clause 262 Commission 263-272 Commission to discover life-tenant 263 Life-tenant without the state 263 General provisions 264 Notice of execution 264 Execution thereof 265 Proceedings on return 265 Surrogates' courts 267 Justices' courts 268 Commission upon interrogatories 268 orally 269 When and how granted 269 Adjournment 270 Execution and return 270 Receipt by justice 270 When deposition evidence 271 Powers of commissioners 27] Marine court 272 MlSCELLASBOUS PROVISIONS 278-310 Pleading not to be used against party 273 Sheriff's return 276 Proceedings in action to annul marriage 276 How far judgment therein conclusive 277 When inventory may be contradicted 278 Liability for uncollected demands 378 Proof of lost will 280 destroyed will 383 Action upon lost negotiable paper 382 Effect of judgment therein 384 Discharge of insolvent, to be recorded 285 Affidavits of sale, posting, etc , may be filed and recorded 385 No person excused from answering on the ground of fraud 287 Decree or order, evidence of assets 289 Contents. xiii Page. Power of appellate court 290 Effect of letters 291 Examination of witnesses on return of citation ; . . . 291 How far probate conclusive as to personalty 296 reality 297 Certified will of record, read in evidence 298 Records of certain wills heretofore proved 298 Hearing on proof of will 299 Recording wills proved in other states 300 Examination of persons cited 301 Additional evidence : 302 Vouchers to be produced 302 Effect of judicial settlement of account 804 Proof of debt upon which judgment, etc. . has been rendered 307 Proof of authority of attorney 308 Stjmmary of othbk Miscbllaneous Sections 311 Forms 317 Index 347 TABLE OF CASES. Tear. A.. 1873 A. B. & C. Co. V. N. Y. Chim- ney Co 53 N. Y. 123 138 1847 Abell v. Douglass 4 Den. 305 250 1843 Ablon v. Barbey IKY. Leg. Obs. 154 187 1836 Ackerman v. Finch 15 Wend. 652 810 1885 Adams v. Cavanaugh 87 Hun, 332 187, 150, 171 1877 Alexander!). Dutcher 70 N. Y. 385 39, 46 1843 Allen ®. Edwards 3 Hill, 499 269 1878 Allen v. Meyer 73 N. Y. 1 180 1850 Aliens. The Public Ad m'r 1 Bradf. 321 80 1878 Allis«. Stafford 14 Hun, 418 13, 14, 24, 29, 80 1886 A.lthouse v. Wells 40 Hun, 326 86 1861 Anable i). Anable 24 How. Pr. 93 275 1884 Anderson v. Doty 88 Hun, 388 274 1870 Anderson z/. West 9 Abb. N. S. 209 197 1800 Andrews v. Andrews 2 Johns. Cas. 109 119 1855 Andrews v. Harrington 19 Barb. 843 809 1883 Andrews v. Keene 4 Civ. Pro. 330 138 1867 Angevine v, Angevine 48 Barb. 417 13, 21 1874 Anonymous 59 N. Y. 313 198, 220 1850 Armstrong v. Clark 3 Code B. 148 100 1854 Armstrong v. Craig 18 Barb. 387 309 1877 Armstrong v. People 70 N. Y. 38 89 1856 Arnold!). EockKiverR, R. Co..5Duer, 207 233 1849 Averill v. Loucks 6 Barb. 25 101 B. 1885 Babcock v. Bolston 3 How. Pr. N. S. 260 147 1880 Bacon v. Frisbie 80 N. Y. 897 86. 87, 92 1883 Badger •». Badger 88 N. Y. 546 43 xvi Law op Evidence. Tear. Page 1886 Bailey ». Bailey 8 N. Y. State K. 132 73 1807 Bailis v. Cochran 3 Johns. 417 204 1873 Bakers. Spencer 47 N. Y. 562 316 1830 Baldwin v. Hale 17 Johns. 373 253 1875 Baldwin «. Smidt 5 Hun, 454 50 1833 Bajik v. Porter 2 Watts, 141 329 1848 Bank of Commerce v. Michel ... 1 Sandf. 687 187 1871 Bank of Commonwealth s.Mudg- ett 44N.Y.514 230 1853 Bank of Pougfekeepsie v. Has- brouck 6N. Y.216 305 1842 Bank of Rochester v. Gray 2 Hill, 337 339 1846 Bank of Salina z/. Henry 2 Den. 159 96 1858 Bankof Silver Cr'k B.Browning. 16 Ahb. 274 173 1848 Bank of Utica «. Mersereau ... .3 Barb. Ch. 595. . .85, 86, 87, 90, 93, 93 1849 Bank of Vergennes v. Cameron. 7 Barb. 143 329, 330 1879 Barber ■b. People 17 Hun, 368 388 1880 Barker «. Wilder 10 Wk. Dig. 252 136, 165 1847 Barnes i>. Camack 1 Barb. 893 73 1870 Barrett v. Carter 3 Lans. 73 50 1861 Barton «. Gedhill 12 Abb. 346 72 1884 Barton ». Scramling 31 Hun, 467 26 1879 Batterson v. Sanford 45 Super. Ct. 127 156, 157 1871 B'dof Water Com'rsi-. Lansing. 45 N. Y. 19 337 1878 Beach v. Mayor 14 Hun, 80 . . 148, 150, 153, 153, 154, 155 1833 Beall ». Day 7 Wend. 513 188 1833 Beaver ®. Van Every 3 Cow. 439 310 1876 Becker B. Winne 7 Hun, 458 313 1883 Beebe v. Richardson 3 M'C. C. P. 319 138, 1.53 1873 Belden v. Meeker 47 N. Y. 307 339 1840 Bell «, Lent 24 Wend. 330 281 1884 Benedict i>. Driggs 84 Hun, 94 17, 46 1876 Benedict v. Phelps 3 Wk.Dig. 150 43 1878 Benjamin v. Dimmick 4 Redf. 7 16, 56, 57 1830 Benn «. Borst 5 Wend. 393 244 1875 Bennett v. Austin 5 Hun, 536 29 1883 Bennett v. Edwards 27 Hun, 354 180 1881 Berdell v. Berdell 86 N. Y. 519 161, 165, 174 1883 Berdell v. Berdell 3 Civ. Pro. 159 177, 178 Table of Cases. xvii Year. Page. 1834 Berrien v. Westervelt 12 Wend. 195 107 1872 Birdsall ». Patteson 51 N. Y. 43 4 1873 Bissel v. Campbell 54 N. Y. 353 228 1863 Bissel v. Peavce 28 N. Y. 25? 241 1881 Black D. Curry , 1 Civ. Pro. 193 .^ 140 1834 Blade B. Noland 12 Wend. 173 383 1886 Blaesi «. Blaesi 3 N. Y. State R 431 37 1857 Blaisdell ■». Raymond 5 Abb. 144 '274 1858 Blaisdell t>. Raymond 6 Abb. 148 274 1858 Blaisdell ». Raymond 9 Abb. 178, n 195 1873 Blott V. Rider 47 How. Pr. 90 277 1834 Bogert t. Bogert 2 Bdw. 399 86 1809 Bolte « Van Rooten 4 Johns. 130 204 1833 Boomer v. Laine 10 Wend. 525 246 1879 Boorman «. A. &. P. R. R. C0..17 Hun, 555 135 1879 Boorman i;. A. & P. R. R. Co . . 78 N. Y. 599 135 1879 Boorman «. Pierce 56 How. Pr. 252 149, 150 1878 Borst «. Winckel 14 Hun, 139 231 1885 Boughton v. Bogardus 35 Hun, 198 45, 50, 60 1878 Boughton v. Flint 74 N. Y. 476 303 1811 Bours V. Tuckerman 7 Johns. 538 126 1881 Boyd ». Elias 3 Law Bull. 81 152 1863 Boyntonz/. Boynton 25 How. Pr. 495 116 1823 Brack ett ». Dudley 1 Cow. 209 187 1881 Bradley e, Mirick 25 Hun, 372 68 1883 Bradley v. Mirick 91 N. Y. 293 68, 69 1870 Bradley v. Mut. B. L. Ins. Co. . .3 Lans. 341 350 1871 Bradley ». Mut. B. L. Ins. Co. . .45 N. Y. 422 250 1876 Brague b. Lord 67 N. Y. 495 31, 42, 48 1870 Brand v. Brand 39 How. Pr. 193 87, 88 1878 Brandon Man'f'g Co. ■». Bridg- man 14 Hun, 123 138 1820 Brandt «. Klien 17 Johns. 335 89, 91 1860 Bret «. Bucknam 33 Barb. 655 116 1843 Brewster v. Doane 3 Hill, 537 333 1863 Brick's Estate 15 Abb. 13 304, 305 1884 Briggs «. Taylor 4 Civ. Pro. 338 158 1881 Briggs v. Waldron 83 N. Y. 583 237 1844 Bright v. White 8 Mo. R. 421 249 B xviii Law of Evidence. Tear. Page. 1880 Brisbane ®. Brisbane 30 Hun, 48 136, 156 1883 Bristol v. Sears 3 Civ. Pro 339 34, 60 1871 Britton v. Lorenz 45 N. Y. 51 86, 88 1874 Bromley «. Miller 3 T. & C. 575 339 1867 Bronner v. Prauenthal 37 N. Y. 166 176 1867 Brooks v. Schultz 3 Abb. N. S. 134 183 1867 Brooks ». Schultz 5 Rob't, 656 179, 180 1863 ' Broome v. Van Hook 1 Redf. 444 304 1836 Brotherton v. Wright 15 Wend, 339 346 1883 Brown «. Brown 39 Hun, 498 39 1869 Brown v. Brown 53 Barb. 317 306 1840 Brown «. Kimball 35 Wend. 359 316 1883 Brown ». Landon 4 Civ. Pro. 11 357, 391 1886 Brown v. Stilwell 1 N. Y. State R. 133 108, 109 1854 Brumskill v. James 11 N. Y. 394 305 1857 Bryan v. Butts 37 Barb. 503 386 1885 Buchanan -o. Millen 33 Wk. Dig. 335 15 1886 Bull V. Kendrick 4 Dem. 331 197, 199 1853 Burbank v. Beach 15 Barb. 336 330 1881 Burbank v. Reed 11 Wk. Dig. 576 96, 138 1881 Burbank v. Reed 1 Civ. Pro. 43, n 151 1853 Burden v. Burdell 1 Duer, 635 173 1880 Burnett v. Noble 5 Redf. 69 48 1876 Burnett v. Snyder 41 Super Ct. 347 180 1867 Burrill v. Watertown Bank & L. Co 51 Barb. 105 305, 314 1853 Burritt «. Silliman 16 Barb. 198 393 1885 Burrows v. Butler 38 Hun, 157 13, 50 1885 Burt ». Oneida Com 31 Wk. Dig, 343 136, 161, 164 1853 Bush V. Miller 13 Barb. 481 309 1878 Butler v. Flanders 56 How. Pr. 313 318 1860 Butler w. Lee 19 How. Pr. 383 196 1839 Butler z/. Wright 3 Wend. 369 333 1860 Byass «. Sullivan 31 How. Pr. 50 94, 95 1877 Byrne «. Mulligan 41 Super. Ct. 515 151, 163 0. 1884 Cadmus v. Oakley 3 Dem. 398 187, 194, 367 1885 Cadmus v. Oakley 3 Dem. 334 33, 33 Table of Cases. xix Year. Page. 1877 Cahen v. Cont. L. Ins. Co 69 N. Y. 300 81 1835 Calkins «. Long 23 Barb. 97 101 1886 Camp i). Eraser 4 Dem. 212 184 1857 Campbell «. Hoyt 23 Barb. 555 244 1885 Campbell D. Hubbard 38 Hun, 306 48 1883 Canada Stb. Co. v. Sinclair 8 Civ. Pro. 384 97, 139 1883 Cannon®. N.W.Mut.L. Ins. Co. 29 Hun, 470 51 1868 Card «. Card 39 N. Y. 317 11, 58 1876 Card v. Duryea 66 N. Y. 651 51 1875 Carman v Kelley 5 Hun, 383 176 1873 Carnes ®. Piatt 15 Abb. N. S. 337 85, 86, 93 1885 Carney v. Wadhams 9 Civ. Pro. 309 40 1879 Carroll i). Davis 9 Abb. N. C. 60 44 1883 Carpenter ». Soule 88 N Y. 351 13, 22, 23, 29 1866 Carpenter v. White 46 Barb. 291 74 1883 Carrington v. Hutson 28 Hun, 371 118 1875 Carroll v. Carroll 60 N. Y. 121 297 1874 Cary d. White 59 N. Y. 336 85, 38, 41, 42, 58, 88 1833 Case ®. Boughton 11 Wend. 107 101 1879 Cases. People 76 N. Y. 243 Ill 1840 Case». Towle 8 Paige, 479 390 1857 Caujollie's Case 9 Abb. 893 390 1851 Caw V. Robertson § N. Y. 139 393 1842 Cayuga Co. Bank ■». Hunt 2 Hill, 635 229, 230 1877 Cenlr. C. R. R. Co. v. T. T. St. R. R. Co 53 How. Pr. 45 130 1870 Central Nat. Bank v. Arthur. . . .2 Sw. 194 116, 117, 141 1874 Central Nat. Bank v. White 37 Super. Ct. 297 116 1877 Chadwick v. Fonner 69 N. Y. 404 ,50 1843 Chaffee v. Bap. Mis. Con 10 Paige, 85 293 1886 Chaffee v Goddart 8 N. Y. State R. 386 44, 46 1883 Champlin v. Stodart 64 How. Pr. 878 189, 190, 191 1868 Champney*. Blanchard 39 N. Y. Ill 317 1878 Chapin s. Thompson 16 Hun, 56 151, 154, 155, 163 1874 Cheever v. Saratoga Co. Bank . .47 How. Pr. 876 164 1857 Cheneys. Arnold 15 N. Y. 858 251 1877 Children's Aid So. o. Loveiidge . 70 N. Y. 387 15 1880 Church b. Howard 79 N. Y. 415 19, 24, 30, 40, 50, 61 1878 Churchill v. Carter 15 Hun, 885 193 XX Law o:^ Evidence. Tear. Page. 1855 Churchill ». Prescott 3 Bradf . 233 306 1886 City of Buffalo v. Ray 1 N. T. State R. 733 95, 96 1859 City Savings Bank v. Bidwell ... 39 Barb. 325 251 1848 Clapper v. Pitzpatrick 3 How. Pr. 313 274, 275 1864 Clark v. Brooks 26 How. Pr. 254 172, 184 1877 Clark B.Bruce 12 Hun, 274 53 1883 Clark «. Candee 29 Hun, 139 186,198 1840 Clark «. Clark 8 Paige, 152 .' 279 1872 Clark!). Clark 47 N. T. 664 242 1887 Clark ». Dibble 16 Wend. 601 175 1829 Clark u Grant. 2 Wend. 257 126 1886 Clark zi. Manhattan Railway Co . 1 N. Y. State R. 163 172 1843 Clark e. Nixon 5 Hill, 36 242 1858 Clark «. Owens ^ 18 N. T. 434 104 1854 Clark «. Richards 3 B. D. Smith, 89 86 1866 Clark ®. Smith 46 Barb. 30 40 1849 Clarke?). Cumminga 5 Barb. 839 104 1846 Clarke a Sawyer 3 Sandf. Ch. 386 215 1858 Clayton v. Tarrington 16 Abb. 273, n 197 1845 Close v. Olney 1 Den. 319 96. 97 1843 CloyesD. Thayer 3 Hill, 566 94, 98 1881 Clyde v. Rogers 34 Hun, 146 130 1881 Clyde 11. Rogers 87 K Y. 625 130 1884 Clyde «. Rogers 94 N. Y. 542 130 1872 Cockey 1). Hurd 12 Abb. N. S. 308 179 1873 Cockey v. Hurd 14 Abb. N. S. 183 179, 181 1861 Coffins. Coffin 23 N. Y. 9 293 1834 Cogswell v. Meech 12 Wend. 147 118 1873 Cohen z/. Kelly 35 Super. Ct. 49 351 1875 Cole «. Cole 50 How. Pr. 59 75 1875 Cole V. Denue 3 Hun, 610 27 1854 Cole V. Jessup 10 N. Y. 96 229 1842 Cole z/. McClellan 4 Hill, 59 124,135 1849 Collier v. Idley'a Ex'rs 1 Bradf. 94 300 1854 Collins v. Knapp 18 Barb. 583 13 1886 CoUyer v. CoUyer .17 Abb. N. C. 828 281, 282 1859 Colsoni). Brainard 1 Redf. 334 307 1837 Colvin v. Corwin 15 Wend. 557 244 1854 Com. Bank v. Union Bank 11 N. Y. 303 205, 314 Table of Cases. xxi Tear. Page. 1878 Comstocke. Hier 73 N. Y. 269 34, 36 1874 Cone v. Purcell .56N. Y. 649 253 1880 Conklin v. Conklin 20 Hun, 378 47 1884 Conselyea «. "Walker 2 Dem. 117 394 1884 Converse v. Cook 31 Hun, 417 28, 29 1876 Conway v. Moulton 6 Hun, 650 27, 34 1883 Cooke v. Lalance Grosyean M. Co .3 Civ. Pro. 333 140 1850 Copez/. Sibley 12 Barb. 521 196, 317 1878 Corbett v. Gibson 16 Hun, 341 Ifil 1878 Corbett ». DeComeau .4 Abb. N. C. 353 146 1878 Corbett v. DeComeau 5 Abb. N. C. 171. .94, 97, 151, 164, 165 1878 Corbett ». DeComeau 54 How. Pr. 506 138 1879 Corbitt\Rice 1 Civ. Pro. 79, n 185 1877 Cornell v. Cornell 12 Hun, 313 12, 22 1883 Cornells v. Roach 29 Hun, 333 138 1880 Cornells v. Roach 1 Civ. Pro. 87, n 138 1883 Corning i>. Walker 28 Hun, 435 30, 54 1885 Corning z/. "Walker 100 N. Y. 547 54 1846 Courtney ®. Baker 3 Den. 20 118, 119 1841 Coveney «. Tanahill 1 Hill, 33 86, 87, 88, 89 1856 Craft ». Merrill 14 N. Y. 456 106 1834 Cralgg «. Briggs 4 Paige, 548 106 1857 Crawford v. Loper 25 Barb. 449 196 1857 Creamer v. Jackson 4 Abb. 413 189, 318 1880 Crookes. Corbin . , 23 Hun, 176 151, 155 1844 Crosby v. Berger 11 Paige, 377 86 1882 Crosier v. Cornell S. Co 27 Hun, 215 291 1882 Crouse v. Frothingham 27 Hun, 123 99 1845 CurtissJ.Knox 3 Den. 841 95 1885 Curtis ®. Moore 52 Super. Ct. 583 46 1860 Cutler w. "Wright 22 N. Y. 472 251 1851 Cuyler w. Sanford 8 Barb. 239 236 D. 1878 Dambman v. Butterfield 15 Hun, 495 142 1869 Dana's Estate 1 Tucker, 113 807 1881 Dart v. Laimbeer 47 Super. Ct. 490 153, 166, 157 1885 Dater «. "Wilison 36 Hun, 549 296, 297 xxii Law op Evidbnob. Tear. Page. 1874 Dauchy v. Miller 16 Abb. N. S. 100 181, 183, 183 1884, Davenport G. M. Co. «. Taussig. 33 Hun, 33 139 1884 Davenport G. M. Co. v. Taussig. 6 Civ. Pro. 155 97 1884 Davenport G. M. Co.z/. Taussig. 18 Wk. Dig. 408 374 1885 Davies v. Fish 35 Hun, 431 138, 139 1881 Davis ». Clark 87 N. Y. 624 290 1793 Davis 11. Dinwoody 4 Term R. 678 71 1885 Davis z/. Stanford 37 Hun, 531 138, 147 1864 Dean v. Eldridge 29 How. Pr. 222 384 1874 DeBary v. Stanley 5 Daly, 413 140 1874 DeBary i). Stanley 48 How. Pr. 349 116, 141 1884 DeLeon v. DeLima 66 How. Pr. 288 136, 149, 153 1800 Demar 1). Van Zandt 3 Jolins. Cas. 69 188 1886 Denise v. Denise 3 N. Y. State R. 175. . . ! 48, 59 1875 Denman v. Jayne 16 Abb. N. S. 317 45 1870 Dennis D. Crittenden 43 N. Y. 543 5 1883 Denny «. Horton 3 Civ. Pro. 255 312, 313, 371 1880 Denny v. Lourie 3 Law Bull. 40 314 1881 Derham b. Lee 60 How. Pr. 334 337 1883 Derham v. Lee 87 N. Y. 599 337 1859 Deshayj). Persse 9 Abb. 289, n 188 1836 Devanbaugh v. Devanbaugh 5 Paige, 554 277 1861 Devoy t). New York 35 Barb. 364 340 1865 Dewy v. Goodenough 56 Barb. 54 46 1879 DeWitt v. McDonald 1 Civ. Pro. 86, n 138 1848 DeWolf v. Murray 2 Sandf. 166 330 1886 Dick ». Phillips 41 Hun, 604 117, 160 1877 Dilliber v. Home L. Ins. Co 69 N. Y. 356 81, 83 1880 Dilliber v. Home L. Ins. Co 10 Wk. Dig. 180 79 1844 Dixon v. Ely 4 Edw. 557 135 1849 Dodge ». Rose 1 Code R. 133 192 1848 Doe z/. Roe. 3 Barb. 200 293 1883 Dole». Stokes 5 Redf . 593 267 1879 Dollner v. Lintz 9 Daly, 17 318 1860 Donnells v. Walsh 6 Bosw. 631 176 1879 Dorr«. City of Troy 19 Hun, 323 346 1879 Downey z'. Downey 16 Hun, 481 396 1860 Draper v. Com. Ins. Co 31 N. Y. 378 354 1886 Dryer v. Sexsmith 40 Hun, 343 369 Table op Cases. xxiii Tear. Page. 1863 Dubois v. Baker 40 Barb. 556 39 1864 Dubois v. Baker 30 N. Y. 355 39, 51 1847 Dutchess Co. B'k v. Ibbotson. . .5 Den. 110 239 1855 Duke of Cumberland v. Graves .9 Barb. 595 103 1884 Duncan D. Jones 33 Hun, 13 135, 144 1878 Dunham v. Mer. Mut. Ins. Co. . .6 Abb. N. C. 70 136, 148 1878 Dunliam v. Mer. Mut. Ins. Co. . .56 How. Pr. 340 147, 148 1860 Dunham v. Sherman 19 How. Pr. 573 304 1867 Dunn v. Devlin 3 Daly, 133 333 1878 Durant v. Abendroth 1 Law Bull. 3 149 1854 Dwinelle ». Howland 1 Abb. 87 189,309 1866 Bjeiv. Dyer 48 Barb. 190 40 E. 1856 Eagle's Case 3 Abb. 318 103 1883 Early ». Early 5 Redf. 376 381 1864 East River B'k i). Hoyt 41 Barb. 444 100 18-50 Eaton e. North 7 Barb. 631 187, 369 1879 Edington v. A. L. Ins. Co 77 N. Y. 564 78, 83, 83 1875 Edington «. Mut. L. Ins. Co.... 5 Hun, 1 78, 79, 80, 83, 83 1876 Edington v. Mut. L. Ins Co. . . .67 N. Y. 185 79, 80, 81, 83, 84 1877 Elmore B.Hyde 3 Abb. N. C. 139 133, 153 1879 ElyB. Clute 19 Hun, 35 14, 39, 30 1868 Erie R. R. Co. «. Champlain 35 How. Pr. 74 165, 183 1873 Erie R. R. Co. v. Gould 14 Abb. N. S. 379 181, 183 1849 Erwin». Smaller 3 Sandf . 340 71 1857 Erwin ». Voorhees 36 Barb. 137 195 1880 Evansu. Ellis 23 Hun, 460 46 1864 Everitt v. Everitt 41 Barb. 385 381 F. 1884 Padner v. People 19 Wk. Dig. 433 340 1843 Fanning v. Trowbridge 5 Hill, 438 310 1884 Farley 1). Norton .67 How. Pr. 438 34 1873 Farmer v. Robbins 47 How. Pr. 415 135 1874 Farnsworthe. Ebbs 3 Hun, 438 14, 43 1883 FarrellD. Krum 17 Wk Dig. 471 57 1873 Fassin v. Hubbard 61 Barb. 548 334 1874 Fassin s. Hubbard 55 N. Y. 465 316, 334 xxiv Law of Evidence. Tear. Page. 1857 Fellows v. Hyring 23 How. Pr. 230 241 1857 Fellows v. Wilson 31 Barb. 162 95 1849 Ferguson «. Broome 1 Bradf. 10 308 1884 Ferguson v- Mass. Mut. L. Ins. Co. 32 Hun, 315 81 1867 Fielden j;. Lahens 6 Abb. N. S. 341 217 1877 Finn ■„. Finn 12 Hun, 339 5, 78 1874 First Nat. B'k ». Church 3 T. & C. 10 231 1882 First Nat. B'k a. Fourth Nat.B'k.89 N. T. 412 357 1879 Fisher z/. Verplauck 17 Hun, 150 49 1868 Fisk v. Chicago, etc. R. R. Co. .3 Abb. N. S. 430 179, 181, 182, 183 1880 Fitzpatrick v. Van Schaick. ... 1 Civ. Pro. 87, n 138 1849 Fleming ®. Hollenback 7 Barb. 271 206, 217 1870 Florences. Butler 9 Abb. N. 8. 63 109 1884 Fogga. Fisk 4 Civ. Pro. 344 ..133, 134,173 1884 Fogg V. Fisk 65 How. Pr. 351 156 1883 Foggjj.Fisk 30 Hun, 61 155,157 1879 Foote v. Beecher 78 N. Y. 155 27, 58, 60 1868 Forbes v. Willard 54 Barb. 520 388, 289 1862 Ford v. Williams 24 N. Y. 366 193 1877 Foster ». Bullock 12 Hun, 200 172 1885 Foster v. Wilkinson 37 Hun, 242 90, 91, 92, 120, 131 1883 Fourth Nat. B'k b. Boynton 39 Hun, 441 137, 154,155 1863 Woxv. Clark ...61 Barb. 316, n 39, 46 1864 Franklin v. Pinney 18 Abb. 186 38 1885 Frazier v. Davids 1 How. Pr. N. 8. 494 153, 154 1873 Fredericks v. Taylor 52 N. Y. 596 273 1878_^Freeman v. Lawrence 43 Super. Ct. 288 49 1877 Freiberg «. Branigan 3 Abb. N. C. 131 167 1877 Frisbie ii. Young 11 Hun, 474 134, 135 1884 Frist v. Climm 6 Civ. Pro. 30 274 1886 Frothingham v. B'dw., etc., R. R. Co 9 Civ. Pro. 314 149, 159 1874 Froude J/. Froude 1 Hun, 76 220 1855 Fry v. Bennett 1 Abb. 293 176 1838 Fryatt i>. Lindo 3 Edw. 239 113 1875 Fulton v. Whitney 5 Hun, 16 305 1876 Fulton v. Whitney 66 N. Y. 557 305 1884 Funk v. Tribune Asso 4 Civ. Pro. 408 138, 171 1847 Furniss v. Holland 1 Edm. 470 231 Table ov Cases. xxy G. Year. Page. 1886 Gadsen v. Woodard 38 Hun, 548 95 1886 Gadaen t/. Woodard 3 N. Y. State R. 102 95 1863 Gamble v. Gamble 39 Barb. 373 393 1857 Gardiner i;. Peterson 14 How. Pr. 513 119 1874 Gardner v. Bennett 38 Super. Ct. 198 175 1885 Garvey z/. Owens 37 Hun, 498 12, 44 1874 Gates v. Beecher 3 T. & C. 404 214 1854 Gates B.Ward 17 Barb. 437 13 1880 Gawthorpt). Leary 9 W'k Dig. 176 143, 166 1866 Gawtry v. Doane 48 Barb. 148 229 1872 Gawtry v. Doane 51 N. Y. 84 239, 331, 333 1860 Gellatly v. Lowery 6 Bosw. 113 318 1878 Gelpcke z/. Quentell 1 Law Bull. 1 196 1875 Genet v. Ketchum 62 N. Y. 626 91 1871 Genet ». Lawyer 61 Barb. 311 39. 46 1870 George®. Toll 39 How. Pr. 497 240 1855 Gerry e. Post 13 How. Pr. 120 103 1878 GifEord ». Sacket 15 Hun, 79 22 1833 Gilbert v. Third Ave. R. R. Co .49 Super. Ct. 130 155, 156 1883 Gillies «. Kreuder 1 Dem. 349 289 1884 Gillies «. Kreuder 33 Hun, 314 16,36 1874 Gilmanz/. Gilman 3 Hun, 33 290 1876 Glf nney 9. Stedwell 1 Abb. N. C. 328 133, 137 1876 Glenney u. Stedwell 64 N. Y. 120 136 1884 Goldberg v. Roberts 5 Civ. Pro. 97 136 1874 Goodwin v. Hirsch ■. 37 Super. Ct. 503 55 1870 Goodyear v. Vosburgh 41 How. Pr. 421 .194, 205, 206, 207, 208 1881 Gorham «. Price 25 Hun, 11 31 1857 Gouglie®. Laroche 14 How. Pr. 451 166 1886 Gourlay ®. Hamilton 1 N. Y. State R. 555 19 1865 Graham v. Chrystal 37 How. Pr. 279 39 1857 Graham «. Colburn 6 Duer, 678 191 1872 Grahams. People 63 Barb. 484 88 1844 Grants. Grant 1 Sandf. Ch. 235 281 1880 Grattan v. Met. L. Ins. Co 80 N. Y. 281 79, 80, 81, 83, 84, 93 1881 Grattan v. Met. L. Ins. Co 24 Hun, 43 79, 83 1883 Grattan v. Met. L. Ins. Co 28 Hun, 430 80 1883 Grattan ». Met. L. Ins. Co 93 N. Y. 387 80 xxvi Law of Evidence. Tear. Page. 1878 GrattanB. Nat. L. Ins. Co 15 Hun, 74 78, 79, 81, 82 1814 Graves v. Delaplaine 11 Johns. 300 193 1878 Graves».King 15 Hun, 367 15 1874 Green B. Edick 56 N. Y. 613 34 1880 Greensward «. U. D. S. Inst. . . .59 How. Pr. 399 94, 96, 138 1878 Greer v. Allen 15 Hun, 433 149, 151, 164 1883 Greisman «. Dreyfus 4 Civ. Pro. 33 4, 138, 171 1873 Grey J). Grey 47 N. T. 552 40 1845 Groof v. Griswold 1 Den. 432 344 1880 Gross v. Little 1 Civ. Pro. 103, n 165 1865 G't W. Turnpike Co. v. Loomis.33 N. Y. 127 ' 97 1883 Gustaf v. Am. St. Co 31 Hun, 95 169, 185 1831 Guyon v. Lewis 7 Wend. 26 176 H. 1848 Haddock v. Kelsey 3 Barb, 100 353 1882 Hadsall d. Scott 36 Hun, 617 30, 44 1880 Halea.Kogers 22 Hun, 19.137, 146, 149, 151. 152, 153 1840 Haleran «. Field 33 Wend. 38 304, 307, 216 1857 Hall V. Barton 25 Barb. 378. . . .196, 305, 306, 307, 308 1868 Hall V. Costello 3 Am. R. 209 350 1880 Hall V. Richardson 23 Hun, 444 33 1882 Hall V. Van Vranken 38 Hun, 403 343 1822 Halliday v. Martinet 20 Johns. 168 *. 232 1881 Ham«. Van Orden 84 N. Y. 357 31, 59 1879 Hammond i>. Schultze 45 Super. Ct. 611 17, 50 1880 Hand «. Burrows ,..33 Hun, 330 192 1849 Hard v. Shipman 6 Barb. 631 245 1859 Hardenbrook's Case 8 Abb. 416 125 1883 Hardy*. Peters 30 Hun, 79 151, 153 1884 Harris v. Durkee 5 Civ. Pro. 376 109 1853 Harris b. Ely 1 Seld. Notes, 37 176 1880 Harrold «. N. Y. etc. R. R. Co. . 21 Hun, 268 140, 161, 162 1839 Hart -o. Wilson 3 Wend. 513 283 1853 Hasbrook v. Vandervoort 9 N. Y. 153 7I 1873 Hatch ». Peugnet 64 Barb. 189 38 1888 Hatch «. Sigman 1 Dem. 519 283 1873 Hauseman B. Sterling 61 Barb. 347 116,140 1871 Havemeyer v. Ingersoll 13 Abb. N. S. 306. 136 Table of Cases. xxvii Tear. Page. 1874 Hawkins w. Macy 3 Hun, 668 318 1874 Hazlewoodo. Heminway 3 T. & C. 787 196 1877 Heads. Teeter 10 Hun, 548 43 1877 Hebbard « Haughian 70 N. Y. 54 171 1884 Hedges v. Williams 33 Hun, 546 313, 313 1834 Heermans v. Williams 11 Wend. 638 346 1873 Height «. People 50 N. Y. 393 61 1874 Heineman v. Heard. 3 Hun, 834 316 1879 Heishon ». Knickerbocker L. Ins. Co 77 N. Y. 378 133, 146, 161, 169 1880 Hennessy 1). Hennessy 58 How. Pr. 304 73 1885 Henry v. Henry 4 Dem. 253 188 1881 Henry ». Mead 4 Law Bull. 10 198 1847 Henry v. Salina B'k 1 N. Y. 86 94, 95, 96 1839 Herkimer Co. B'k v. Cox 31 Wend. 119 339 1874 Herrick v. Hope 33 Dai. Reg. No. 93 320 1879 Hesse z/. Briggs 45 Super. Ct. 417 169, 185 1858 Heulin v. Ridner 6 Abb. 19 190 1875 Heurslel ». Tilman 1 Civ. Pro. 83, n 161, 163 1839 Hewitj). Prime 31 Wend. 79 81 1858 Hewlett ». Brown 1 Bosw. 655 166 1876 Hewlett v. Wood 67 N. Y. 394 171, 314 1868 Hicks ». Bradner 3 Abb. Dec. 363 73 1860 Hicks ?). Brennan 10 Abb. 304 117 1872 Hier B.Grant 47 N. Y. 278 40 1871 Hildebrandt ®. Crawford 6 Lans. 502 43 1875 Hildebrandt ». Crawford 65 N. Y. 107 42,43 1879 Hill V. Alvord 19 Hun, 77 29, 30 1879 Hill ®. Heermans 19 Hun, 470 40 1880 Hill «. Heermans 23 Hun, 455 44 1881 Hill z/. Hotchkin 33 Hun, 414 3, 34, 39, 30 1830 Hillz/. Packard 5 Wend. 375 349 1886 Hill V. Woolsey 43 Hun, 481 25 1854 Hirshfieldw. Landman 3 E. D. Smith, 208 . 310 1880 Hoar v. Hoar 23 Hun, 33 58, 59 1875 Hobart v. Hobart 62 N. Y. 80 19, 21, 59, 61 1874 Hodge «. City of Buffalo 1 Abb. N. C. 356 2 1868 Hodgkin v. A. & P. R. R. Co. . .5 Abb. N. S. 73 179 1869 Hodgkin z/. A. & P. R. R. C0...3Daly, 70 179 xxviii Law of Evidence. Year. Page. 1874 Holbrook v. N. J. Zinc Co 57 N. Y. 616 243, 243 1880 HolcombB. Holcomb 30 Hun, 156 13, 43 1884 Holcomb v. Holcomb. . . 95 N. Y. 316. .13, 31, 38, 39, 41, 43, 48 1878 Hollisteri). Bunitt 14 Hun, 391 379 1851 Holman ». Dord 13 Barb. 336 18 1833 Holmes «. Broughton 10 Wend. 75 351 1884 Holmes v. Steitz 6 Civ. Pro. 863 139, 131 1871 Holtz D. Schmidt 34 Super. Ct. 30 116 1836 Homer ». Martin 6 Cow. 156 307 1865 Hooper ». Hooper 43 Barb. 393 71 1886 Hope». Troy & L. R. R. Co.... 40 Hun, 438 83, 84, 93 1877 Houghey ». Wright 13 Hun, 179 40 1863 Howard v. Orient Mut. Ins. Co . 9 Bosw. 645 205, 214 1886 Howell t). Manwariug 3 N. Y. State R. 455 44 1851 Howell 11. Ruggles . 5 N. Y. 444 346, 347 1877 Howell u. Taylor 11 Hun, 214 21, 38 1875 Howell v. Van Siclen 6 Hun, 115 40, 49, 50 1877 Howell !). Van Siclen 70 N. Y. 595 40 1873 Howlandi). Taylor 53 N. Y. 627 290 1885 Hoyt, Estate of 7 Civ. Pro. 374 89 1884 Hoyt v. Jackson 2 Dem. 443 292, 293 1885 Hoyt v. Jackson 3 Dem. 388 89, 93, 93 1873 Hudson R. etc. R. R. Co. v. Kay . 14 Abb. N. §. 193 183 1873 Hunn«.Hunn 1 T. & C. 499 82 1870 Huntz^. Johnson 44 N. Y. 37 349 1853 Hunt v. Maybee 7 N. Y. 366 339 1886 Hunt D. Providence, etc. St. Co. 9 Civ. Pro. 291 43 1883 Hunter v. Herrick 36 Hun, 373 18, 24 1843 Hurd ». Pendrigh 3Hill,502 196 1847 Hurd v. Swan 4 Dem. 75 118, 119 1883 Hutchinson ». Lawrence 3 Civ. Pro. 108 136, 137 1885 Hyatt v. Swivel 53 Super. Ct. 7 109 1877 Hynes «. McDermott 7 Daly, 813 148 1877 Hynes®. McDermott 55 How. Pr. 359 151, 163, 171 1879 Hynes v. McDermott 7 Abb. N. C. 98 349 1880 Hynes d. McDermott 83 N. Y. 65 263 I. 1880 In re Accounting of Kelly 11 W'k Dig. 308 130 Table op Cases. xxix Tear. Page. 1880 1883 1878 1878 1877 1883 1886 1881 1885 1878 1880 1884 1883 1884 1885 1869 1883 1885 1885 1882 1884 1880 1882 1870 1884 1883 1871 1878 1840 1883 1886 1883 1885 1854 1885 1884 1885 1882 nre Attoiney 83 N. Y. 164 ...189, 190, 191 n re Att'y Gen. v. Cont. L. Ins. Co 4 Civ. Pro. 214 i60 n re Banpister 1 Law Bull. 9 181 . n re Bloomingdale 1 Law Bull, 36 335 n re Bryan 3 Abb. N. C. 393 144, 147, 151, 161, 171 nre Burke 5 Redf. 369 14.33 59 nre Clark 40 Hun, 233 19, 30 n re Curry 35 Hun, 331 302 nre Bounce 7 Civ. Pro. 436 153, 158 n re Drexel 1 Law Bull. 6 313 nreEldridge 83 N. Y. 161 304 n re Estate of Colligan 5 Civ, Pro. 198 380 n re Estate of Fox 93 N. Y. 93 307 n re Estate of Meakim 5 Civ. Pro. 421 308 nrePisk -. 7 Civ. Pro. 169 133, 134 n re Forman 54 Barb. 374 294 n re Eraser 93 N. Y. 339 36 n re Hawley 100 N. Y. 306 304 n re Hewitt 31 W'k Dig. 396 30 nre Hood 90 N. Y. 513 307 n re Hutchinson 19 W'k Dig. 268 4 n re Ketchum's Application . . .60 How. Pr. 154 159 n re Langbein 3 Civ. Pro. 326 301 n re Lewis 39 How. Pr. 157 94, 97 nre Morris ». Matthews 19 W'k Dig. 375 147, 159 n re N. Y. C. & H. R. R. Co . .90 N. Y. 343 30 n re Paige 63 Barb. 476 51, 300 n rePaulmier 56 How. Pr. 1 143 n re Robert's Will 8 Paige, 446 350 nre Ross 87 N. Y. 514 390 n re Savin 9 Civ. Pro. 176 322, 323 nre Shearer 1 Civ. Pro. 455 301 n re Slingerland . . .; 36 Hun, 578 302 nreTappan 9 How. Pr. 394 94, 96 nreTilden 98 N. Y. 434 304 n re Voorhis 5 Civ. Pro. 444 187, 194 nreVoorhis 1 How. Pr. N. S. 261 33, 35 nreWaldron 16W'kDig.28 44 XXX Law of Evidence. Tear. Page. 1843 Inre Whitney .• 4 Hill, 533 189 1882 In re Will of Chapman 37 Hun, 578 90 1886 In re Will of Chase 4 N. Y. State R. 195 22, 90 1884 In re Will of Gouraud 95 N. Y. 261 ...296,297 1872 Inre Will of Kellum 50 N. Y. 298 297 1873 In re Will of Kellum 52 N. Y. 517 393, 294 1867 In re Will of Levy 1 Tucker, 87 15 1884 In re Will of Smitb . .' 95 N. Y. 517 35, 36, 47 1886 In re Will of Wilson 3 N. Y. State R. 618 15, 23 1885 In re Wisner 3 Dem. 13 109 J. 1854 Jacks v. Uarrien 3 E. D. Smith, 548 288 1854 Jacks v. Darrien 3 E. D. Smith, 557 283 1817 Jackson z/. Burtis 14 Johns. 390 89 1821 Jackson v. Daverne. 19 Johns. 134 91 1830 Jackson v. Denison 4 Wend. 558 89 1829 Jackson v. French 3 Wend. 337 87, 88 1823 Jackson v. Hobby 20 Johns. 358 315 1806 Jackson v. Humphrey 1 Johns. 498 106 1827 Jackson «. Kent 7 Cow. 598 201 1877 Jackson «. McLure 5 W'k Dig. 448 14 1820 Jackson v. McVey 18 Johns. 330 89 1829 Jackson i>. Rice 8 Wend. 180 176 1805 Jackson z-. Stiles 3 Cai. 128 206 1876 Jacques v. Elmore 7 Hun, 675 40 1886 James D. Richardson 39 Hun, 40O 180, 183 1800 Jenkins v. Kingsley Col. & Caines, 136 252 1881 Jennison v. Citizen's 8. B'k 85 N. Y. 546 198 1874 Johnson z/. Bush 57 N. Y. 633 175 1835 Johnson v. Johnson 14 Wend. 637 83 1857 Johnson v. Lynch 15 How. Pr. 199 188 1835 Johnson v. Miln 14 Wend. 199 101 1875 Johnson v. Richards 3 Hun, 454 305 1875 Johnson v. Spies 5 Hun, 468 40, 46 1882 Jones v. Hoyt 10 Abb. N. C. 327 198 1884 Jones v. LeBaron 3 Dem. 87 33, 36 1884 Jones ». LeBaron 6 Civ. Pro. 62 13 1878 Juillard v. Brown 2 McC. C. P. 821 n 155 Table of Cases. xxxi K. Year. ■ Page. 1879 Kale ». Elliott 18 Hun, 198 34 1879 Kamer ». Myleua 1 Law Bull. 18 313 1885 Kane v. Clarke 3 How. Pr. N. S. 370 150 1885 Kaufman v. Herzfield 1 How. Pr. N. S. 444 149 1865 Keator ». Dimmick 46 Barb. 158 31 1853 Keeler ®. Vanderpool 1 Code R. N. S. 389 204 1853 Keeney ». Whitemarsh 16 Barb. 141 393 1877 Keiley i). Dusenbury 2 Abb. N. C. 360 288 1884 Kellam v. McKoon 31 Hun, 519 230 1886 Keller v. West B. & C. MTg Co. . 39 Hun, 348 24 1849 Kellogg v. Kellogg 6 Barb. 117 89 1884 Kelly v. Burroughs 33 Hun, 348 47 1886 Kelly «. Burroughs 102 N. Y. 93 36 1886 Kelly ». Burroughs 1 N. Y. State R. 161 36 1880 Kelly v. Webber 9 Abb. N. C. 62 305 1880 Kemp v. Dickinson 22 Hun, 593 191 1859 Kendall ®. Grey 3 Hilt. 300 82 1848 Kennedy v. Newman 1 Saudf. 187 247 1806 Kenny v. Clarkson 1 Johns. 386 349 1863 Kerr «. McGuire 38 N. Y. 446 50 1873 Kerr v. Russell 18 Am. R 634 243 1873 Kerr ». Russell 69 111. 666 343 1843 Ketchum v. Barber 4 Hill, 224 331 1874 Kiernan o. Abbott 1 Hun, 109 167 1866 Kimball v. Connolly 3 Abb. Dec. 504 363 1838 Kimball ■«. Davis 19 Wend. 437 316 1886 King ii. King 39 Hun, 220 298 1874 King v. Leighton 58 N. Y. 383 180 1820 King v. Paddock 18 Johns. 141 104 1883 Kinney v. Roberts & Co 36 Hun, 166 133, 138, 139, 146, 171 1882 Kirkland «. Moss 11 Abb. N. C. 431 152 1853 Kirkland v. Wanzer 2 Duer, 278 239 1875 Knight v, Cunnington 6 Hun, 100 49 1874 Knoeppel v. Kings Co. F. Ins. Co . 47 How, Pr. 413 179 1885 Knowles w. DeLazare 8 Civ. Pro. 387 130 1883 Knowlton v. Bannigan 11 Abb. N. C. 419 144, 156, 157 1883 Koehleri). Adler 91 N. Y. 657 39,43 1878 Kraushaar B. Meyer 72 N. Y. 603 31,42 xxxii Law op Evidence. L. Tear. Page. 1855 LaBeau «. People 33 How. Pr. 73 98 1857 LaFargea LaParge, F. Ins. Co.l4 How. Pr. 27 116 1860 Lakev.Ranney 33 Barb. 49 298,394 1876 Lamkin». Starkey 7 Hun, 479 125 1852 Lane v. Cole 12 Barb. 680 117, 141 1884 Lane». Lane... 95 N. Y. 494 23, 47 1873 Lane?). Salter 51 N. Y. 1 284 1860 Lansing*. Coley 13 Abb 272 316, 332 1883 Lansing «.Hadsall 36 Hun, 619 44 1884 Lathrop D. Brown 5 Civ. Pro. 101 147,153,154 1869 Lathrop v. Clapp 40 N. Y. 828 388 1888 Latbrop ». Hopkins 29 Hun, 608 18, 33 1881 Lawson v. Jones 61 How. Pr. 434 68, 69 1875 Lawson e. Pinckney 40 Super. Ct. 187 334, 249 1886 Lawton v. Sayles 40 Hun, 252 24, 34 1862 Lazier ®. Westcott 36 N. Y. 146 249, 257 1863 Lee u Dill 89 Barb. 516 22 1873 Leetcb v. At. Mut. Ins. Co 4 Daly, 518 308, 319 1879 Leonard v. N. Y. C. & H. R. R.Co.44 Super. Ct 575 340 1887 Lerclie v. Brasher 11 Civ. Pro. 430 ■. . 340 1885 Lerche «. Brasher 37 Hun, 385 40, 48, 49 1887 Lerche «. Brasher 4 N. Y. Slate R. 335 48, 49, 50 1842 Letts «. Brooks Lalor, 36 103 1878 Levy «. Loeb 5 Abb N. C. 158. 133, 161, 163, 165, 169, 171 1854 Lewis ». Lewis 11 N. Y. 220 292 1885 Lewis ». Merrit 98 N. Y. 206 40, 41, 53 1886 Lewis «. Merrit 5 N. Y. State R. 274 53 1831 Lincoln «. Battelle 6 "Wend. 476 203 1848 Little v. McKeon 1 Sandf. 607 88 1833 Livingstone. Harris 3 Paige, 583 94 1820 Livingston v. Tompkins. : . . . . 4 Johns. Ch. 482 94 1867 Lobdellz/. Lobdell 36 N. Y. 337 13, 41 1853 Logue v. Gillick IE. D. Smith, 398 347 1848 Lohmani). People 1 N. Y. 379 97 1880 Loomis z/. People 19 Hun, 601 289 1879 Loop V. Gould 17 Hun, 585 164 1 878 Ludewig v. Pariser 4 Abb. N. C. 347 147, 161, 163, 171 Table of Cases. xxxiii Tear. Page. 1856 Lynch v. Todd 13 How. Pr. 546 275 1871 Lyon «. Snyder 61 Barb. 173 38 M. 1866 McAndrew «. Radway 34 N. Y. 511 234 1875 McArthur «. Soule 5 Hun, 63 177 1846 McCartee ». Camel. 1 Barb. Cb. 455 103, 104 1858 McCIeary ». Edwards 27 Barb. 241 196, 206 1872 McColl ». Sun Mut. Ins. Co. . . . 50 N, Y. 333 189, 190 1821 McComb », Wright 5 Johns. Ch. 263 104 1880 McCoon «. White 60 How. Pr. 149 149,156 1886 McCoskry, Estate of 10 Civ. Pro. 179 134, 144 1866 McCraney v. Alden 46 Barb. 273 251 1874 McCue v. Tribune Asso 1 Hun, 469 183, 183 1835 McCurtie!). Stevens 13 Wend. 539 101, 102 1859 McDonald b. Garrison 9 Abb. 34 172 1859 McDonald v. Garrison 9 Abb. 178 195 1883 McDonald ». Woodbury 30 Hun, 35 31, 174 1878 McGregor v. Ball 7 W'k Dig. 312 166, 168 1878 McGuffin v. Dinsmore 4 Abb. N. C. 241. 97, 116, 135, 141, 161, 162 1885 McKenna o. Bolger 37 Hun, 536 41 1870 McKinley ». Lamb 56 Barb. 284 294 1872 McKinley v. Lamb 64 Barb. 199 294 1887 McKinney «. G. St. etc., R. R. Co. 4 N. Y. State R. 349 84 1849 McKnight «. Lewis 5 Barb. 681 237, 233 1864 McMahom ». Allen 18 Abb. 292 187 1884 McMahon v. Brooklyn C. R. R. Co 20 W'k Dig. 404 154, 156 1842 McMinn v. Richtmeyer 3 Hill, 236 809 1878 McMonagle ». Conkey 14 Hun, 336 193 1882 McNally «. Brown 5 Redf. 373 381 1867 Mackinnon v. Barnes 66 Barb. 91 340, 259 1880 Macy ». Hastings 2 Law. Bull. 87 , 154 1853 Mallory v. Benjamin 9 How. Pr. 419 89 1858 Maloney v. Dows 2 Hilt. 247 275, 276 1862 Mandeville «. Guernsey 38 Barb. 235 86, 87 1836 Mann ». Bcksford's Ex'rs 15 Wend. 519 101, 103 1845 March v. Ludlum 3 Sandf. Ch. 49 85, 87 € xxxiv Law op Evidence. Year. Page. 1878 MarkelU. Benson 55 How. Pr. 360 39, 53 1879 Marsh v. Brown 18 Hun, -819 57 1877 Marsh «. Gilbert 2 Redf. 465 43 1863 Marsh v. Howe 36 Barb. 649 86, 87 1860 Marsh v. Potter 30 Barb. 506 71 1878 Marsh n. Woolsey 14 Hun, 1 169, 185 1877 Marshall v. Watertown St. Eng. Co 10 Hun, 463 218 1875 Martin v. Hicks 1 Abb. N. C. 341 144, 164 1877 Martin v. Spofford 3 Abb. N. C. 125 116, 140, 141 1877 Mason v. Libbey 2 Abb. N. C. 143 136, 180 1862 Mattesoni). N. Y. C. R. R. Co..62Barb. 364 4 1882 Matthews v. Tufts 87 N. T. 570 125 1882 Marverick ». Marvel 90 N. Y. 656 40 1884 Mayer «. Ehrlich 33 Hun, 1 173 1878 Mayer v. Noll 56 How. Pr. 314 164 1832 Maynard ii. Chapin 7 Wend. 520 198 1867 Merchant's Estate 1 Tucker, 151 294, 295 1872 Mer. Ex. Nat. B'k v. Cardoza. . .85 Super. Ct. 168 253 1862 Merrill v. George 23 How. Pr. 331 125 1880 Merritt v. Campbell 79 N. Y. 635 81 1858 Merrit v. Thompson 1 Hilt. 550 108 1849 Mesick v. Mesick 7 Barb. 120 279 1850 Metzger «. Metzger 1 Bradf. 265 303 1855 Meyer v. Lent 7 Abb. 225 184 1879 M. & H. Organ Co. v. Pugsley. .19 Hun, 282 193, 211, 213 1876 Miller ». Adkin 9 Hun, 9 56, 57 1880 Miller z-. Kent 59 How. Pr. 322 153 1879 Miller v. Montgomery 78 N. Y. 282 19, 25, 58 1883 Milligan v. Robinson 16 W'k Dig. 96 44 1886 Mills V. Kemochan 3 N. Y. State R. 152 59 1871 Miner v. Miner 4 Lans. 421 5, 72 1880 Misland v. Boynton 79 N. Y. 630 177 1886 M. Nat. B'k v. Sheehan 101 N. Y. 176 148, 163, 164 1861 Mitchell's Case 12 Abb. 249 86 1863 Moffat ». Mount 17 Abb. 4 71 1851 Monroe v. Douglas 5 N. Y. 447 250, 251 1878 Montague v. Worstell 4 Abb. N. C. 248 142 1848 Montgomery v. Montgomery 8 Barb. Ch. 132 277 Table of Cases. xxxy Tear. Page . 1885 Moore v. Oviatt 35 Hun, 216 16, 19 1867 Moore's Estate 1 Tucker, 41 379 1886 Morehouse v. Morehouse 3 N. Y. State R. 793 68, 69 1874 Morgan ». Morgan 16 Abb. N. S. 391 118 1876 Morgan v. Smith 7 Hun, 344 101 1884 M. Organette Co. v. Hayes 19 Wk Dig. 535 139 1863 Morrell z/. Hoey 15 Abb. 430 191 1863 Morris z/. Patchin 24 N. Y. 394 358 1880 Morrison v. McDonald 9 Abb. N. 0. 57, n 141 1851 Morse v. Cloyes 11 Barb. 100 352 1867 Moses B. Banker 7 Rob't, 131 181 1865 Mosher D. Heydrick 1 Abb. N. S. 358 106 1877 Mott D. Consumer's Ice Co 3 Abb. N C. 143 83 1873 Mowry v. Sanborn 63 Barb. 333 386, 287 1875 Mowry «. Sanborn 65 N. Y. 581 286, 287 1877 Mowry v. Sanborn 68 N. Y. 153 286 1876 Mowry z/. Sanborn 7 Hun, 380 286 1877 Mowry v. Sanborn 11 Hun, 545 386 1878 Mowry D. Sanborn 73 N. Y. 534 286, 287 1880 Moyer v. Meyer 31 Hun, 67 35 1863 Mulford «. Muller 3 Abb. Dec. 330 91 1875 Mulqueen v. Duffy 6 Hun, 399 40, 60 1884 Murphy v. N. Y. C. & H. R. R. R. Co 31 Hun, 358 174 1886 Murray «. Fox 39 Hun, 108 34 1833 Murray «. Kirkpatrick 1 Cow. 310 188 1863 Muscott V. Runge 37 How. Pr. 85 117, 118, 119 1884 Myers B. Dorman 34 Hun, 115 87 N. 1878 Nat. Butcher's B'k v. DeGroot. .43 Super. Ot. 341 333 1880 Nat. Exch. B'k «. Jones 9 Daly, 348 34 1880 Nat. Exch. B'k «. Jones 10 Wk Dig. 132 47 1878 Nearpass v. Oilman 16 Hun, 131 13, 35, 32, 43 1848 Nelson v. McGiflfert 3 Barb. Ch. 158 396 1883 Neurath v. Schmitz 2 Civ. Pro. 405 151, 156 1880 Newhall«. Appleton 2 Law Bull. 135 141 1884 Neuman v. Third Ave. R. R. . . .50 Super. Ct. 414 4, 139 1877 Newton v. Porter 69 N. Y. 133 213 xxxvi Law of Evidence. Tear. Page. 1867 Newton's Estate 1 Tucker, 349 395 18'31 Nichols «. Goldsmith 7 Wend. 160 233 1878 Nichols z/. Van Valkenburg 15 Hun, 330 41 1879 Nightengale v. Cont. L. Ins. Co. 3 Law Bull. 15 192 1850 Nixon v. Palmer 10 Barb. 175 177 1807 Norris v. Beach 3 Johns. 394 136 1829 Norton v. Colt 3 Wend. 350 106 1884 Nottj/. Clews 20W'kDig. 374 151, 156 1877 N. Trust Co. v. Roberts 10 J. & Sp. 100 75 1885 N. Y. L. E. & W. R. R. Co. v. Carhart 36 Hun, 288 134 o. 1876 O'Brien ii. Com. P. Ins. Co 41 Super. Ct. 234 188, 207 1876 Ocean Nat. B'k «. Carll 9 Hun, 339 333 1843 O'Connor ». Majoribanks 5 Scott N. R. 394 73 1877 O'Connor v. U. S. L. Ins. Co. . .1 Civ. Pro. 85, n 137 1885 O'Donnell «). Mclntyre 37 Hun, 632 106 1868 O'Gara «. Bisenlohr 38 N. Y. 299 103 1885 Oliver v. Freligh 36 Hun, 633 39 1885 Olney v. HatchlifE 37 Hun, 287 147 1854 Olney®. Olney 7 Abb. 350 375 1843 Onondaga Co. B'k v. Bates 3 Hill, 53 339 1846 Oppeuheim v. Leo Wolf 3 Sandf . Ch. 571 103 1881 O'Reilly z/. People 86 N. Y. 155 110, 111 1877 O'Reillys. W. U. Tel. Co 13 Hun, 124 136 1861 Orser».Orser 24 N. Y. 53 394 1875 Osburn z>. Merwin 50 How. Pr. 183 335 1877 Osburn ». Merwin 18 Hun, 333 286 1854 Otsego Co. B'k v. Warren 18 Barb. 290 233 P. 1829 Pacific Ins. Co. ■». Catlett 4 Wend. 86 353 1880 Pacific P. Gas Co. ®. Wheelock. SON. Y. 278 349 1839 Packard ». Hill 3 Wend. 411 349 1885 Paddock ®. Kirkham 38 Hun, 376 190 1886 Paddock «. Kirkham 103 N. Y. 600 191 1886 Paddock v. Kirkham 3 N. Y. State R. 555 189 1877 Pakeo.Proal 3 Abb. N. C. 418 166 Table of Cases. xxxvii Tear. Page. 1877 Pakes.Proal 54 How. Pr. 93 168 1881 Palmer v. G't Western Ins. Co. .47 Super. Ct. 455 213 1875 Parhan v. Moran 4 Hun, 717 51, 291 1877 Parhan v. Moran 71 N. Y. 596 51 1840 Parker ®. Baker 8 Paige, 428 106 1853 Parker w. Cassidy 16 Barb. 177 231 1876 Parker v. McCunn 2 W'k Dig. 503 , 23 1878 Parsons ». Belden 9 Abb. K C. 56 116, 141, 171 1654 Parsons «. Suydam 3 E. D. Smith, 276 99 1850 Paton v. Westervelt 5 How. Pr. 399 144 1876 Patteson v. Copeland 52 How. Pr. 460 42, 60 1881 Pearsall v. Elmer 5 Redf. 181 80, 86, 90, 93 1883 Pease ». Barnett 30 Hun, 525 44 1861 Peck». Williams 13 Abb. 68 85, 87 1852 Peeble's Case 2 Bradf. 326 393 1854 Pelham v. Bryant 10 How. Pr. 60 13 , 1859 Pendalli). Coon SON. Y. 134 206 1818 Pendergrast's Case 3 City H. Rec. 11 113 1881 Penn v. Randall 3 Law Bull. 61 134 1838 People «. Abbott 19 Wend. 195 97 1859 People v. Blakely 4 Park. Cr. 176 87, 97, 98 1845 Peoples. Bodine.... 1 Den. 381 . 98 1874 People ». Brady 56 N. Y. 191 250,251 1845 Peoples. Brooks 1 Den. 457 106 1878 People ». Brown 72 N. Y. 573 77, 97, 98 1884 People v. Burns 33 Hun, 298 76 1855 People d. Carroll 3 Park. Cr. 83 96, 97, 98 1853 People «/. Cook 14 Barb. 359 341 1853 People v. Cook 8 N. Y. 84 110, 341 1879 Peoples. Crandon 17 Hun, 490 4 1879 People v. Crapo 76 N. Y. 388 77 1884 People!). D'Argencour 95 N. Y. 639 350, 359, 361 1836 People «. Davis 15 Wend. 603 119 1865 People 2/. Devlin 33 N. Y. 369 338 1863 People v. Dyckman 34 How. Pr. 332 133 1849 People v. Fleming 3 N. Y. 485 Ill 1835 People ®. Gates 13 Wend. 311 77 1883 People v. Hovey 39 Hun, 382 76 1857 People v. Jackson 3 Park. Cr. 590 113 xxxviii Law op Evidence. Year. Page. 1885 People v. Kelley 35 Hun, 304 76 1861 People D. Kelley 31 How. Pr. 59 96 1830 People «. Mather 4 "Wend. 3?9 95, 96, 97 1882 People^). McGloln 28 Hun, 150 75 1883 Peoples. McGloin 91 N. Y. 341 75,76 1889 People ». McNair 21 Wend. 608 113 1873 People z/. Montgomery 13 Abb. N. S. 307 116 1886 People «. Murpby 101 N. Y. 136 78, 79, 80, 81 1878 Peoples. Mut. Gas L. Co 14 Hun, 157 134. 135 1878 People «. Mut. Gas L. Co 74 N. Y. 434 134, 135 1883 People e. Noelke 94 N. Y. 137 76 1884 Peoples. Nyce 34 Hun, 301 349, 351 1883 People v. Schewe 29 Hun, 133 76 1859 People u. Sheriff 39 Barb. 633 89 1886 People v. Squire 3 N. Y. State R. 194 179 1886 People ». Squire 4 N. Y. Cr. R. 583 179 1858 People®. Stout 3 Park. Cr. 670 78, 79, 80, 83 1805 People ®. Van Wyck 3 Cai. 333 116 1827 People u. Vermilyea 7 Cow. 108 119 1861 People ex rel. Burn). Zeyst 23 N. Y. 141 241 1884 People ex rel. Crittenden v. Keenan 31 Hun, 627 260 1885 People ex rel. Jacobs v. Ball 37 Hun, 245 120 1874 People ex rel. Judson v. Thatcher . 55 N. Y. 535 338 1877 People ex rel. Keiley v. Speir 3 Abb. N. C. 466 288 1873 People ex rel. Purdy v. Com'rs of Highways 54 N. Y. 276 338 1874 People ex rel. Stemmler v. Ma- guire 3 Hun, 269 328 1875 People ex rel. Stemmler v. Ma- guire 60 N. Y. 640 228 1800 Pepoonz/. Jenkins 2 Johns. Cas. 119 252 1881 Perry ®. People 86 N. Y. 353 76, 321 1876 Person v. Grier 66 N. Y. 124 134, 135 1863 Persae Paper Works z/.Willett 19 Abb. 416 250 1864 Petrieu. Fitzgerald 1 Daly, 401 135 1879 Pettit V. Geesler 58 How. Pr. 195 34, 55 1883 Phelps v. Phelps 6 Civ. Pro. 117 109 1884 Phelps V. Phelps 32 Hun, 643 109 Table or Cases. xxxix Tear. Page. 1835 PhenixD. Baldwin 14 Wend. 602 215 1876 PMllipS'B. Dusenbury 8 Hun, 348 304 1877 Phoenix ». Dupuy 7 Daly, 338 163 1877 Plioenix v. Dupuy 2 Abb. N. C. 146 96, 133, 138, 163 1886 Phoenix Mills v. Miller 4 N. Y. State R. 788 340, 241 1856 Pickard v. Collins 23 Barb. 444 97, 99, 100 1853 Pierson v. Boyd 2 Duer, 33 333 1879 Pierson v. People 18 Hun, 239 78, 80, 83 1880 Pierson t>. People 79 N. T. 424 78, 79, 80 1882 Pinney c. Orth 88 N. Y. 447 11,41 1813 Pintard v. Tackington 10 Johns. 104 383 1878 Pirz v. Follett 1 Civ. Pro. 185, n 141 1885 Pittman u Johnson 15 Abb. K C. 472 306 1863 Plato «. Kelley 16 Abb. 188 172 1874 Piatt V. Beebe 57 N. Y. 339 253 1869 Pollard i>.U. P. R, R. Co 7 Abb. N. S. 70 124 1838 Pooler v. Maples 1 Wend. 65 186 1883 Pope V. Allen 90 N. Y. 398 18, 35 1877 Porter z/. Waring 2 Abb. N. C. 232 347 1881 Potts «. Mayer 10 Abb. N. C. 63 11 1881 Potts «. Mayer 86 N. Y. 302 56, 57 1884 Poucheru Scott 33 Hun, 223 15, 19, 23 1880 Pratt ». Elkins SON. Y. 198 14, 43 1855 Pratt ». Peckham 25 Barb. 195 346 1880 Preston ». Hencken 9 Abb. N. C. 68 158 1886 Price v. Brown 5 N. Y. State R. 7 52 1884 Price v. Price 33 Hun, 69 11, 14, 38, 52 1882 Pringle v. Woolworth 90 N. Y. 503 ^57 1863 Prouty ». Eaton 41 Barb. 409 35, 88 1885 Prudden v. Tallman 6 Civ. Pro. 360 129, 131 1880 Purcellf. Fry 19 Hun, 595 29 1886 Purdy v. Webster 9 Civ. Pro. 144. 199 1883 Putnam B. Stewart 2 Civ. Pro. 172 242 Q. 1883 Quinby«. Strauss 90 N. Y. 664 59, 60 xl Law of Evidence. R. Tear. Page. 1873 RailwayP. Ass. Co. «. Warner. .1 T.&C. 21 21fi 1870 Ramsey v. Brie R. B. Co 8 Abb. N. S. 188 183 1847 Raney D. Weed 1 Barb. 330.'.. 193 1841 RatclifEe«. Wales 1 Hill, 63 74 1873 Rathbun*. Ingersoll 34 Super. Ct. 311 193, 193 1880 Raubiscbek v. Blank 80 N. Y. 478 36 1879 Raymond v. Brooks 59 How. Pr. 883 136, 137 1877 Reeves®. Crosby 3 Redf. 74 15, 295 1883 Reichmann v. Manhattan Co 26 Hun, 483 135, 159 1885 Renlhan v. Dennin 38 Hun, 270 81, 83, 93 1886 Renlhan i). Dennin 108 N. Y. 573 81 1886 Renlhan v. Dennin 4 N. Y. State R. 261 80, 81 1870 Ressiguie v. Mason 58 Barb. 89 39 1878 Restoff*. Ehrlch 1 Law Bull. 3 155 1873 Rexford v. Rexford 7 Lans. 8 343 1884 Reynolds v. Parker 2 Dem. 399 184 1872 Rice v. Davis 7 Lans. 393 338 1881 Rice v. Motley 34 Hun, 148 31, 174, 175, 177 1874 Richards v. Judd 15 Abb. N. S. 184 167 1888 Richardson v. Case 3 Civ. Pro. 395 384 1839 Richardson v. Gere 31 Wend. 156 196 1877 Richardson v. McCreery 1 Abb. N. C. 355 141 1878 Richardson i>. Warner 13 Hun, 13 13, 27, 36, 46 1886 Rickey®. Christie 40 Hun, 278 309, 310 1877 Riddle v. Cram 3 Abb. N. C. 117, n 115, 164, 166 1868 Rider®. Legg 51 Barb. 260 293 1885 Riggs ®. Am. Home Mis. So . . .35 Hun, 656 12, 39, 59 1850 Ring ®. Mott 2 Sandf. 683 193 1881 Roach z/. Kivlin 35 Hun, 150 375 1881 Robblns v. Pultze 48 Super. Ct. 510 56 1874 Roberts®. Burrill 3 T. & C. 30 309 1858 Roberts ®. Carter 28 Barb. 462 175 1883 Roberts®. O. & L. C. R. R. Co. 39 Hun, 154 139, 140 1880 Robertson v. Russell. 30 Hun, 343 137, 149, 151 1848 Robinson v. Dauohy 3 Barb. 20 89, 251 1864 Robinson v. Raynor 38 N. Y. 494 390 1851 Rochester City B'k ®. Suydam. .5 How. Pr. 364 91 1875 Roderlgas v. East R. S. Inst 63 N. Y. 460 291 Table of Cases. xli Tear. Page. 1879 Eoderigas v. Bast R. S. Inst ... .76 N. T. 333 391 1875 Roe v. Roe 8 J. & 8p. 1 73 1874 Rogers®. Durant 3 T. & 0. 676 183 1838 Rogers v. Jackson 19 Wend. 383 313 1873 Rogers ». Lyon 64 Barb. 373 90 1833 Rogers v. Rogers 7 Wend. 514 194 1874 Rollwagen«. Rollwagen 3 Hun, 121 390 1881 Root «. Wright 84 N. Y. 73 86, 88 1886 Rosenberg v. Rosenberg 40 Hun, 91 90 1856 Ross V. Bedell 5 Duer, 463 330 1877 Ross V. Harden 43 Super. Ct. 437 43 1875 Ross s. 'Ross 6 Hun, 183 49 1884 Ross«. Wigg 34 Hun, 198 108, 109 1881 Rugg®. Rugg 83 N. Y. 593 15 1861 Rushmore ®. Hall 13 Abb. 430 171 1881 Russ V. Campbell 1 Civ. Pro. 41 138, 156 1836 Russell ». Rogers 15 Wend. 351 101 1869 Rust V. Eckler 41 N. Y. 488 305, 806 1880 Ryan ®. People 79 N. Y. 593 77 1841 Ryers v. Hedges 1 Hill, 646. 182 s. 1881 Sacia v. Decker 1 Civ. Pro. 47 54, 61, 76, 77 1884 Sanford v. Ellithorp 95 N. Y. 48 21, 59, 60 1872 Sanford v. Sanford 61 Barb. 393 90 1885 Saratoga Co. B'k v. Leacli 37 Hun, 336 41, 45 1871 Savage®. O'Neil 44 N. Y. 398 350, 251 1862 SchafEner ®. Reuter 37 Barb. 44 71 1877 Schepmoes «. Bousson 1 Abb. N. C. 481, 133, 149, 151, 153, 153, 154, 163 1883 Scherrer v. Kaufman 1 Dem. 39 18, 19, 20 1880 Schile w. Brokhahus 80 N. Y. 615 253 1885 Schneider v. Altman 2 How. Pr. N. S. 44 8 289 1880 Schoonmaker v. Wolford 20 Hun, 166 13, 31, 22, 33, 61 1877 Schroeder v. C. R. I. & P. R. R.19 Alb. L. J. 334 139, 140 1866 Schultz ®. Schultz 35 N. Y. 653 280 1855 Scoville ®. New 13 How. Pr. 319 374 1854 Seaver I-. Robinson 3 Duer, 633 135 1879 Seeley®. Clark 78 N. Y. 330 4, 134 xlii Law of Evidence. Tear. Page. 1848 Seguine v. Seguine 2 Barb. 385 393, 393, 395 1885 Seligman v. Sonnebom 1 How. Pr. N. 9. 473 108 1884 Seligman v. Wallack 16 Abb. N. C. 317 389 1848 Seneca Co. Bank ii. Neass 5 Den. 339 231 1850 Seneca Co. Bank ». Neass 3 N. T. 443 331 1879 Severn v. Nat. St. B'k 18 Hun, 338 13, 33 1839 Shaffer «. Wilcox 3 Hall, 503 187 1883 Sharp «. Hutchinson 48 Super. Ct. 101 134 1880 Shaw v. Van Rensselaer 60 How. Pr. 143 140, 149 1865 Sheldon?). Ferris 45 Barb. 134 104 1864 Sheldon z/. Stryker 43 Barb. 284 343 1881 Sheldon «. Wakeley 3 Law Bull. 94 134 1857 Sheldon ». Wood 3 Bosw. 267 173,214 1878 Shelp®. Morrison 13 Hun, 110 119 1884 Shepard ». Patterson 3 Dem. 183 35, 54 1879 Sheridan ». Houghton 16 Hun, 628 90 1879 Sheridan ». Houghton 6 Abb. N. C. 334 281 1873 Sheriff v. Smith 47 How. Pr. 470 358 1883 Sherman*. Scott 37 Hun, 331 23, 88 1833 Sherrill*. Hopkins 1 Cow. 103 251 1881 Shetharj). Babcock 1 Civ. Pro. 83, n 151 1879 Shelton v. Smith 1 Law Bull. 35 166,185 1871 Shirley z/. Bennett 6Lans. 512 28 1883 Shufelt v. Watrous 16 W'k. Dig. 196 46, 90 1878 Shults V. Andrews 54 How. Pr. 380 126 1857 Sibley®. WaflBe 16 N. Y. 180 87 1873 Simar v. Cannaday. .' 53 N. Y. 398 20 1886 Simmons z-. Havens 101 N. Y. 427 43,44 1863 Simmons z/. Sissons 26 N. Y. 277 41 1880 Simmons v. Vanderbilt 59 How. Pr. 411 136, 137 1878 Simonds v. Hudson 4 Abb. N. C. 347, n 151, 153 1870 Simpson's Will 3 Redf. 39 395 1878 Sims D. Sims 75 N. Y. 466 75 1861 Sipperly &. Baucus 24 N. Y. 46 306 1871 Sloan «. N. Y. C. R. R. Co 45 N. Y. 135 81 1884 Smith v. Callamer 3 Dem. 147 279 1883 Smith v. Cross 90 N. Y. 549 26 1867 Smith's Estate 1 Tucker, 337 394 1843 Smith w. Frost 5 Hill, 431 244 Table of Cases. xliii Year. PaRe. 1843 Smith i>. Griffith 3 Hill, 333 315 1881 Smith®. Hathorn 35 Hun, 159 17 1883 Smith ». Hathorn 88 N. Y. 311 17 1876 Smith v. McDonald 1 Abb. N. C. 350 116 1883 Smith v. Meaghan 38 Hun, 433 19, 31, 39 1886 Smith v. Meaghan... 40 Hun, 401 48 1879 Smith v. Rauth 1 Civ. Pro. 93, n 171 1873 Smiths. Smith 1 T. & C. 63 87 1883 Smith w. Ulman 36 Hun, 386 43 1878 Smyth v. McGovern 7 W'k. Dig. 480 154 1880 Snyder v. Sherman 33 Hun, 139 33 1877 Somerville v. Crook 9 Hun, 664 48, 59 1856 Southard v. Rexford 6 Cow. 354 97, 98 1870 Southwick ®. Southwick 9 Abb. N. S. 109 5 1873 Southwick v. Southwick 49 N. Y. 510 5, 73, 73 1806 Spenceley v. Schulenburgh 7 East's R. 3S7 86 1875 Sperry J). Reynolds 65 N. Y. 179 309 1873 Spicer ». Spicer 16 Abb. N. S. 113 51 1880 Sprague v. Butterworth 33 Hun, 503 139 1883 Sprague «. Swift 38 Hun, 49 34 1874 Spratt B. Huntington 2 Hun, 341 179, 183 1853 Springsted v. Robinson 8 How. Pr. 41 374, 375 1859 Stake*. Andre 18 How. Pr. 159 190 1867 Stanley «. Whitney 47 Barb. 586 39,40,46 1841 Starr®. Peck 1 Hill, 370 350 1879 Staunton s. Parker 19Hun,55 78,81,83,84 1885 Stebbins®. Hart 4 Dem. 501 23 1883 Steele ®. Ward 30 Hun, 555 11, 19, 20, 43, 58, 81 1835 Steer s. Steer 1 Hopk. Ch. 363 304 1865 Steer v. Miller 30 How. Pr. 7 117 1886 Steinhart®. Farrell 3N. Y. State R. 292 288 1884 Stephens ®. Cornell 32 Hun, 414 33 1879 Stevens v. Brennan 79 N. Y. 254. 59, 60 1853 Stewart z/. Howard 15 Barb. 36 135 1835 Stiles®. Burch 5 Paige, 132 305 1861 Stokes z/. Macken 62 Barb. 145 351 1880 Story ®. Hamilton 10 W'k. Dig. 13 386 1868 Stouvenal v. Stephens 3 Daly, 319 103 1869 Strong ®. Dean 55 Barb. 337 39 xliv Law of Evidence. Tear. Page. 1865 Strong v. Strong 3 Rob't. 675 153 1885 Stewart I-. Patterson 37 Hun, 113 11, 13, 38, 89, 45 1886 Stubbs », Ripley 89 Hun, 635 190 1875 Sturm ®. At. Mut. Ins. Co 63 N. Y. 87 314 1843 Stuyvesant v. Peckham 8 Edw. 579 91 1881 Sumner i). Hosford 13 Wk. Dig. 440 141, 165 1877 Sunderlin». Wyman 10 Hun, 493 340, 341 1881 Sweeney v. Sturgis 34 Hun, 163 4, 147, 168 1883 Sweet ». Low 38 Hun, 432 47, 53, 54 1857 Sweet «. Sweet 15 How. Pr. 169 375 1882 Swift «. State of New York 26 Hun, 508 240 1883 Swift V. State of New York 89 N. Y. 56 240 T. 1867 Taylor «. Jennings 7 Rob't. 581 5 1883 Taylor «. Meldrum 6 Civ Pro. 285 17,54 1870 Taylor Will Case 10 Abb. N. S. 300 395 1851 Teall v. Van Wyck 10 Barb. 876 ■. 227 1878 Tebo v. Baker 16 Hun, 183 164, 1«7, 168 1879 Tebo «. Baker 77 N. Y. 35 118, 164 1879 Tennel ». Photo Plate Co 1 Law Bull. 38 151 1881 Tenney?). Mautner 1 Civ. Pro. 71 154 1870 Terry v. McNeil 58 Barb. 341 216 1872 Thaule v. Ritter 13 Abb. N. S. 439 167 1867 Thayer v. Clark 48 Barb. 343 306 1869 Thayer v. Clark 41 N. Y. 620 '. 806 1877 Thompson ». Sickles 8 Abb. N. C. 131: .... 168 1883 Thorne J). Underbill 1 Dem. 306 278 1856 Throop«. Hatch 3 Abb. 33 250 1840 Thurman v. Cameron. 34 Wend. 87 337 1877 Tilton v. Ormsby 10 Hun, 7 3, 13, 21 1877 Tilton v. Ormsby 70 N. Y. 609 13 1876 Tilton v. U. S. L. Ins. Co 1 Abb. N. C. 348 153 1817 Timmerman v. Morrison 14 Johns. 369 309 1865 Timon «. Claflfy 45 Barb. 438 ...280 1869 Timon v. Claffy 41 N. Y. 619 380 1879 Titus V. O'Connor 18 Hun, 878 37 1870 Todd V. Lambden 10 Abb. N. S. 383 185 Tomlinson v. Seifert 3 N. Y. State R. 283 41 Table of Cases. xlv Year, Page. 1876 Tooley «. BacoD 8 Hun, 177 41 1877 Tooley v. Bacon 70 N. Y. 34 41, 46, 60 1874 Torry v. Black 58 N. Y. 190 101, 102 1853 Torry ®. Bowen 15 Barb. 304 298 1869 Totten's Estate 1 Tucker, 115 806 1869 Toulandou v. Lachenmeyer 6 Abb. N. S. 215 249 1888 Town of H. ■». First Nat. B'k. . . .93 N. Y. 82 158, 175 1859 Tracy «. Suydam 3OBarb.ll0 193 1854 Treadwell v. Bruder ,. 8 E. D. Smith, 596 310 1874 Treadwell v. Pomeroy 2 T. & C. 470 190 1883 Trimmer v. Trimmer 90 N. Y. 675 53 1854 Troy E. R. Co. v. Kerr 17 Barb. 581 239 1878 Turner v. Kingborn 5 Abb. N. 0. 157, n 142 1836 Turquand 1). Knight 2 M. & W. 98 87 1830 Tuttle ». Jackson 6 Wend. 221 245 1867 Tuttle v. People 36 N. Y. 436 110 u. 1879 Uline v. N. Y. C. & H. R. E. Co. 79 N. Y. 175 195, 196, 217 1817 Underbill®. Van Cortlandt 2 Johns. Ch. 839 212 1866 Union Bank v. Gregory 46 Barb. 98 231 1855 Union Bank v. Torrey 2 Abb. 369 304, 214 1809 U. S. ■». Smith 4 Day, 121 96 1878 U. S. B. Tilden 18 Alb. L. J. 416 130 1885 UticaC. D. M. Co. w. Otis 37 Hun, 801 384 v. 1859 Valton v. Nat. P. L. Ass. Soc. . .30 N. Y. 33 317 1863 Van Alstyne «. Van Alstyne. . . .28 N. Y. 875 46 1869 Van Bergen ». Bradley 86 N. Y. 316 341 1875 Van Bokkelen v. Taylor 62 N. Y. 105 261 1 852 Vanderpoel «. Van Valkenburgh . 6 N. Y. 190 297 1802 Vandervoort v. Col. Ins. Co 3 Johns. Cas 187 193 1880 Van Gelder v. Van Gelder 81 N. Y. 625 45 1871 Van Lieuw v. Johnson 66 N. Y. 126 126 1860 Van Ness v. Bush 14 Abb. 33 318 1888 Van Roy v. Harriott 30 Hun, 77 148 1883 Van Roy 0. Harriott 66 How. Pr. 369 157 xlvi Law of Evidence. Tear. Page. 1855 Van Tine z/. Nims 12 How. Pr. 507 95, 96, 97 1859 Varona ». Socarras 8 Abb. 303 100 1859 Vence v. Spier 18 How. Pr. 168 117 1886 Viall «. Leavens 39 Hun, 291 40,46 1843 Irilas V. Jones 10 Paige, 76 95 1873 Vilmar d. Schall 35 Super. Ct. 67 214 1851 Vincent v. Conklin 1 E. D. Smith, 203 219 1868 Voorhees v. Voorhees 39 N. Y. 463 280 w. 1881 Wadsworth v. Heermans 85 N. Y. 639 11, 41, 44 1882 Walker v. Dunlevey 2 McC. C. P. 6 138 1882 Walker «. Dunlevey 4 Civ. Pro. 38 94, 96, 97, 139 1879 Walker «. Spencer 1 Law Bull. 45 192 1884 Wallace v. Wallace 19 W'k Dig. 495 151, 154 1868 Walsh v. Sayre S2 How. Pr. 334 139 1867 Walsh's Will 1 Tucker, 132 295 1879 Walters B. Bushwick 8 W'k Dig. 390 150 1843 Ward t/. People 3 Hill, 395 95 1843 Ward «. People 6 Hill, 144 98 1881 Ward B. Plato 23 Hun, 403 53 1847 Warnick v. Crane. . 4 Den. 460 229 1853 Waterville M. Co. v. Brown. ...9 How. Pr. 27 251 1878 Watson v. Bedlon N. Y. Dal. Reg 153, 168 1878 Waver v. Waver 15 Hun, 277 39, 45 1884 Wayne Co. S. B'k v. Brackett. . .31 Hun, 434 135, 151, 155 1861 Weber t. Kingsland 8 Bosw. 415 218 1877 Webster v. Stockwell 3 Abb. N. C. 116. . . .161, 162, 165, 168 1885 Weed v. Hornby 35 Hun, 582 50 1864 Wehrkamps. Willett 1 Keyes, 250 4, 5, 72 1885 Westover v. A. L. Ins. Co 99 N. Y. 60 78, 83, 83, 84, 93 1877 Wetmore «. Hegeman 3 Abb. N. C. 123 143 1879 Wetmore B. Peck 19 Abb. L. J. 400 49 1856 Wheeler v. Dixon 14 How. Pr. 151 275 1883 Whelpley v. Loder 1 Dem. 368 15, 23, 30, 80, 90, 93 1881 White v. Downey 3 Law Bull. 93 148, 153, 156 1867 White v. Knapp 47 Barb. 549. 350, 251 1882 Whiten, White 16 W'k. Dig. 45 36, 48 Table of Cases. xlvii Year. Page. 1878 Whitehead v. Smith 14 Hun, 531 16, 31 1880 Whitehead v. Smith 81 N. Y. 151 13, 14, 29, 31 1864 Whiting v. Barney 30 N. Y. 330 85, 88 1857 Whitney v. Wyncoop 4 Abb. 370 193, 194, 203, 210 1847 Wilcox V. Clement 4 Den. 162 309 1834 Wilkie v. Chadwick 13 Wend. 49 118 1881 Wilkins «. Baker 24 Hun, 32 17 1858 Wilcox v. Smith 26 Barb. 316 35, 303 1884 Williams v. Davis 7 Civ. Pro. 283 50 1849 Williams v. Eldridge 1 Hill, 249 203, 206, 217 1859 Williams «. Pitch 18 N. Y. 546 85, 91 1879 Williams v. Phillips 1 Civ. Pro. 88, n 139 1871 Williams v. Sargeant 46 N. Y. 481 59 1884 Williams D. Waddell 5 Civ. Pro. 191 109 1881 Williams v. W. U. Tel. Co 1 Civ. Pro. 294 135, 137, 151 1883 Williams v. W. U. Tel. Co 3 Civ. Pro. 448 181 1876 Wilmont «. Meaerole 40 Super. Ct. 321 178 1851 Wilson V. Bap. Ed. So 10 Barb. 312 101 1883 Wilson v. Bennett 14 W'k. Dig. 453 274 1803 Wilsons. Hodges 2 East. 312 103 1884 Wilson v. Munoz 6 Civ. Pro. 71 30 1883 Wilsons. Reynolds 31 Hun, 46 11, 43, 45 1873 Winston i,. English 44 How. Pr. 398 149, 155 1881 Witthaus v. Schack 24 Hun, 328 16, 20, 35, 36 1859 Wolcott ®. Winston 8 Abb. 422 274 1863 Wolfe V. Goulard 15 Abb. 336 96 1884 Wood V. Holmes 19 W'k. Dig. 121 51, 56 1886 Wood®. Howard Ins. Co 18 Wend. 646 189, 191 1877 Wood «. Real 3 Abb. N. C. 122, n 167 1860 Woodrufi i>. Hurson 33 Barb. 557 88 1863 Woods V. DePiganiere 16 Abb. 5 4, 134, 135 1868 Woods V. DePiganiere 16 Abb. 159 116 1880 Worthiem v. Page .10 W'k. Dig. 36 149 1874 Wooster ®. Booth 3 Hun, 436 36 1883 Wright v. Cabot 89 N. Y. 577 214 1854 Wrights. Jessup 8 Duer, 643 187 1851 Wurts V. Jenkins 11 Barb. 546 305 xlviii Law of Evidence. Y. Tear. Page. 18S3 Yamato Trading Co. v. Brown . .37 Hun, 348 94, 96, 138, 171 1874 Yates ®. Olmsted 56 N. Y. 633 86 1816 Yordan «. Hess 13 Johns. 493 87 1857 Young ». Catlett 6 Duer, 437 333 z. 1855 Zellweger v. CafEe 5 Duer, 87 314 1886 Zlmmer v. Wheeler 2 N. Y. State R. 325 68 EVIDENCE. TITLE I. ARTICLE 1. COMPETENCY OF A WITNESS ; EVIDENCE IN PARTICULAR CASES. Code of Civil Proceduee, § 828. § 828. No witness to be excluded by reason of interest, etc. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a wit- ness by reason of his or her interest in the event of an action or special proceeding ; or because he or she is a party thereto, or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. This section is a substitute for section 398 of the Code of Procedure, which read as follows : " No person offered as a witness in any action or proceed- ing in any court, or before any officer acting judicially, shall be excluded by reason of his interest in tlie event of the action or proceeding, or because he is a party thereto, except as is provided in the next following section of this act. Nothing, contained in the eighth section of this act, shall be held or construed to affect or limit the operation of this or the next following section." 2 Law of Evidence. Common Ija"w Rule. Before the Code was enacted, few rules exercised a more extensive influence in excluding witnesses than the one disqualifying a witness having an interest in the suit; and parties and persons interested were excluded, on the ground that such interest was liable to affect their testi- mony, and also of the expediency of avoiding, as much as possible, the danger of perjury. It was thought to be necessary, considering the frailties of human nature, and the danger of the perversion of the truth, to enact certain safeguards, excluding the testimony of such interested witnesses. It was said, "whoever has witnessed in our courts the operation of the law, by which parties and those directly, and most strongly interested in suits are permitted to testify therein, must have been con- vinced that it has opened a wide door for the perversion of the truth, and placed before litigants a temptation to false- hood and perjury most difficult to resist .... That the interest of the witness must affect his testimony, is a truth as uni- versal in its application as men's mental and moral infirm- ities. All experience shows, that under the bias of interest, men cannot judge correctly, even when they most earnestly desire to do so ; much less can they give fair and impartial evidence, when parties to a litigation which not only involves their interests, but, as is almost always the case, excites their passions and prejudices."" Under such influences men will, even though not consciously, suppress some facts, soften or modify others, and give to all such color and impress as is most favorable to themselves. " Such was the language of Smith, J. , in the case of Hodge v. CUy of Buffalo, 1 Abb., N. C, 356. ■ The abrogation of this rule of law, however, was effected by the Code of Procedure. The commissioners of the Code say in their report, that, ' ' the rule appears to us to rest upon a principle altogether unsound; that is, that the situ- ation of the witness will tempt him to perjury. The reason strikes at the foundation of human testimony. The only just inquiry is this: whether the chances of obtaining the truth, are greater from the admission or the exclusion of the witness. Who that has any respect for the society in which he lives, can doubt, that upon this princij^le, the witness should be admitted « Code Civ. Pro., § 828. 3 The contrary rule implies, that, in the majority of instances, men are so corrupted by their interest, that they will perjure themselves for it, and that besides being cor- rupt, they will be so adroit, as to deceive courts and juries. In the great majority of instances the witnesses are honest, however much interested, and in most cases of dishonesty the falsehood of the testimony is detected, and deceives none. Absolutely to exclude an interested witness, is, therefore, as unsound in theory, as it is inconsistent in practice. " HoTv Limited. This section provides, that a person shall not be excused from being a witness by reason of his interest, etc., except as otherwise specially provided in the title of which this section is a part. The only other provision in the same title affecting this part of the section, is in section 829, whicli is to the effect, that a party or a person interested in the event, shall not be examined in his own behalf or interest, against the executoi;, etc., of a deceased person, concerning a personal transaction or communication between the witness and the deceased. Hill 1). Hotchkin, 23 Hun, 4:14. Tiltons. Ormsby, 10 Hun, 8. It is also limited by section 831 of the Code of Civil Procedure, which declares that a husband or wife is not competent as a witness when called. First. To testify, against the other, in an action or special proceeding upon an allegation of adultery, except to prove the marriage. Second. To disclose a confidential communication, with- out the consent of the other, made by one to the other, during the marriage. It also declares, that the plaintiff's wife, in an action for criminal conversation, is not a competent witness for the plaintiff, but, that 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. 4 Law op Evidbwoe. Section 828 is only applicable to civil actions and pro- ceedings. People V. Cranclon, 17 Hun, 490. Parties. A party to an action, within the meaning of the Code, is one who is named plaintiff or defendant and appears on the record as such. Woods -o. DeFiganiere, 16 Abb. 5. See Seeley v. Clark, 78 N. Y. 220. The plaintiff has a right to establish material facts by the testimony of the defendant. Sweeney «. Stm-gis, 24 Hun, 162. And this is so, on an examination before trial. Greisman i). Dreyfus, 4 Civ. Pro. 32. Sweeney ii. Sturgis, 24 Hun, 162. An executor is legally liable to be called upon to give evidence as a witness, in support of the objections to his accounts. In re. Hutchinson, 19 Wk Dig., 268. Neither the Code, nor any statute, confers upon the court the power to compel a iparty to an action to submit his body to an examination by a physician for the purpose of ascer- taining his physical condition, and enabling him to testify to the same at the trial. Newman v. Third Ave. E. R. Co., 50 Super. Ct. 414. Husband, and Wife. The legislature, by the act of 1860, made husband and wife competent witnesses, the one for, or against the other, in all cases where they are parties to the action. Matteson v. N. Y. C. E. E. Co., 62 Barb. 364. BirdsaU «. Patteson, 51 N. Y. 43. Wehrkamp i). Willett, 1 Keyes, 250. Code Civ. Pro., S 828 In sxicli instances lliey are subject to the same rules oE examination, except they are protected from being required to disclose communications between themselves. Welirkamp v. Willett, id. But the language of the Code was changed, and the laws of 1867, chap. 887, sec. 2, provided, that husband and wife shall not be competent to give evidence for or against each other " in any action or proceeding for divorce on account of adultery, (except to prove the fact of marriage).'' Finn «. Finn, 12 Hun, 339. In an action between husband and wife, either is a com- petent witness in his or her behalf, against the other, save as excluded by sections 829 and 831 of the new Code. Soutliwick 1). Southwick, 49 N. Y. 510. Affg, 9 Abb., N. S., 109. Miner v. Miner, i Lans. 421-425. And the husband and wife can testify to conversations and communications (not conhdential), had with each other at any time prior. Southwick «. Southwick, Id. The act of 1867, to enable husband and wife to testify for or against each other, had no reference where the husband or wife is called, as a witness, against himself or herself. Taylor v. Jennings, 7 Bob. 581. The old rule of evidence, that excluded the wife from being a witness for the husband, did not extend to the case of a woman cohabiting with a party as his wife, but not married to him. Dennis i). Crittenden, 42 N. Y. 542. 'Emnv. Finn, 13 Hun, 341. CONTENTS OF SECTION. Code of Civil Peocedure, § 829. PAET I. 1. General view. 2. To what courts and proceedings applied. 3. Who incompetent. PART IL Parties. 1. When party disqualified. 2. Executors. 3. Administrators. 4. Legatees. 5. Husband. 6. Widow. 7. Mortgagor. 8. Maker of note. 9. Greneral provisions. PART III. Persons Interested. 1. Nature and extent of interest. 2. Husband. 3. Wife. 4. Widow. 5. Heirs-at-law. 6. Next of kin. 7. Legatees. 8. Administrator. Code Civ. Peo., § 829. 7 9. Attorney. 10. Surviving partner. 11. Stockholder. 12. Maker of note. 13. Indorser. 14. Surety. 15. Lessee. 16. Interest upon contingent liability. PART IV. Peesons feom, theough, ok tjndee whom such a Paety oe Inteeesxed Peeson deeives His Title OE Intbeest. 1. Grantor. 2. Maker of note. 3. Father. 4. Partner. PART V. A Witness mat not be Examined in His Own Behalf OE Inteeest. 1. When disqualified. 2. Co-defendants. 3. Examination of adversary. 4. Examination by adversary. PART VI. A Witness may not be examined in Behalf of the Paety Succeeding to His Title or Inteeest. PART VII. Against whom such Witnesses cannot testify. 1. Executors. 2. Administrators. 3. Survivors of deceased persons. 4. Committees of lunatics. 5. Persons deriving title or interest from, through, or under a deceased person or lunatic. Law of Evidence. PAET VIII. Executors. PART IX. Administrators. PART X. Survivors op Deceased Persons. 1. Payee of note. 2. Partners. PART XI. Persons Deriving Title or Interest erom, through or UNDER A Deceased Person or Lunatic. 1. How construed. 2. Who derives interest. PART XII. Personal Transactions or Communications. 1. What is a personal transaction or communication ? 2. The test of admissibility. 3. Nature and incidents of transaction excluded. 4. Cannot be proven indirectly. 5. Cannot be proven negatively. 6. Extraneous facts can be given. 7. Intention with which act done. 8. Transaction between deceased and third party. 9. Transactions with agents. 10. Giving of a bond and mortgage. 11. Contents of bonds and agreements, etc. 12. Proof of signature. 13. Alteration of receipt. 14. Address. 15. Signing a pleading or mortgage. 16. Delivery of property. 17. Note without consideration. Code Civ. Peo., § 829. 9 18. Illegal interest. 19. That one is an accommodation indorser. 20 Finding note among papers of deceased. 21. Drawing of lost will. 22. Conversation on execution of will. 23. Proving gift. 24. Antenuptial agreement. 25. Acts and appearances of deceased. 26. Attorneys. 27. Phy&icians. 28. Cannot prove accuracy of bill of particulars. 29. Proof of services. 30. Payment. 31. Birth. 32. Marriage. 33. General provisions. PART XIII. Exceptions. PART XIV. Where the Executor, Administrator, Survivor, Com- mittee OR Person is examined in his oavn behalf. 1. Concerning the same transaction. 2. Where executor examined. 3. Where assignee of title examined. 4. Evidence called out on cross-examination. 5. Where surviving partner has testiiied. PART XV. Where the Testimony op the Lunatic or Deceased Person is given in evidence, concerning the SAME transaction OR COMMUNICATION. 1. Construction of rule. 2. Party can contradict such testimony. 3. Testimony not to be offered by party testifying. 4. Letters and books of account not testimony of deceased. 5. Surviving partner competent to contradict testimony. 10 Law of Evidence. PART XVI. Objections. 1. Greneral provisions. 2. What objections sufficient. 3. Miscellaneous provisions. PART XVII. Historical View. § 839. When party, etc., cannot be examined. Upon the trial of an action, or the hearing upon the merits of a special proceeeding, a party, or a person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness in his own behalf, or interest, or in behalf of the party succeeding to his title or interest, against the execu- tor, administrator, survivor of a deceased person, 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 communica- tion. This section of the Code took effect September 1st, 1877, and was amended by the laws of 1881, chapter 703, by adding : A person shall not be deemed interested for the purposes Code Civ. Peo., § 829. 11 of this section by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. PART I. 1. General view. 2. To what courts and proceedings applied. 3. Who incompetent. 1. General View. The old rule disqualifying a witness having an interest in the suit, from testifying in his own behalf, no longer exists, and by the provisions of the Code, section 828, parties to actions or special proceedings are declared to be competent witnesses in their own behalf. But our Statute in removing this disqualiti cation of parties or persons interested in the event of an action or special proceeding, makes special exception as stated in the above section. The primary intent of this prohibition is very apparent, and is to preserve equality, and prevent unfair advantage. The surviving party is prevented from proving, by his testi- mony, a personal transaction or communication between himself and a deceased person, which, but for this prohibi- tion, he might do without fear or possibility of contradic- tion. Plnney v. Ortli, 88 N. Y. 451. Card v. Card, 39 N. Y. 317. Wadswortli v. Heermans, 85 N. Y. 639. Steele v. Ward, 30 Hun, 561. Price V. Price, 33 Hun, 69. Stuart V. Patterson, 37 Hun, 113. The mouth of the survivor is closed, because the other party to the transaction is dead, and to allow the living witness to speak, secure from the contradiction or correc- tion of his adversary, is to give him an advantage mani- festly unfair, and dangerous to the truth. Potts 11. Mayer, 10 Abb. N. C. 63. Wilson V. Reynolds, 31 Hun, 40. 12 Law of Evidence. The statute is a beneficial one, and ought not to be limited or narrowed by construction. Holcomb «. Holcomb, 95 N. Y. 325. Riggs v.. Am. Home Mis. So., 35 Hun, 661. Stuart «. Patterson, 37 Hun, 113. Garvey v. Owens, 37 Hun, 498. Burrows v. Butler, 38 Hun, 157. This section of the present Code is a substitute for section 399 of the former Code. Under the old code, a party or interested person could not be examined as a witness in any event, in a case within the statute. AUis V. Stafford, 14 Hun, 418. But the rule has been modified, and now they are only disqualified to testify "in their own behalf or interest, or in behalf of the party succeeding to their title or interest." Richardson 1). Warner, 13 Hun, 13. Nearpass v. Oilman, 16 Hun, 121. Whitehead d. Smith, 81 N. Y. 151. Carpenter v. Soule, 88 N. Y. 251. As to what are to be deemed personal transactions or communications between witnesses and deceased per- sons, no change was made by section 829. The same rule applies as was applicable under section 399 of the Code of Procedure, and we may turn to the decisions of the latter section for a true exposition of section 829. Holcomb V. Holcomb, 20 Hun, 156. Id. 95 N. Y. 316. To exclude evidence under this section, it is not enough that the case is within the spirit of the enactment. It must be brought within the wording of the statute itself. Cornell v. Cornell, 12iHun, 314. Severn v. Nat. St. Bk. 18 Hun, 228. Lobdell 1). Lobdell, 36 N. Y. 327. Jones D. LeBaron, 6 Civ. Pro. 62. See Holcomb v. Holcomb, 95 N. Y. 316. Code Civ. Pro., § 829. 13 2. To -what Courts and Proceedings Applied. This section applies to surrogates' courts and the pro- ceedings had therein. Angevine v. Angevine, 48 Barb. 417. Schoonmaker v^ Wolf ord, 20 Hun, 166. It also applies to examinations before a surrogate under sections 2706 and 2710, to discover effects of deceased per- sons withheld or concealed. Tilton v. Ormsby, 10 Hun, 7. Affcl. 70 N. Y., 609. It applies to justices' courts. Gates «. Ward, 17 Barb. 427. Collins 11. Knapp, 18 Barb. 532. Pelham «. Bryant, 10 How. Pr. 60. Cowen's Treatise & Br. § 1555, a. 3. Who Incompetent. There are three classes of persons who are incompetent under the rule. The first part of the section enumerates who these witnesses are. They are, First, Parties. Second, Persons interested. Third, Persons from, thi^ough or under whom, parties or persons interested derive title or interest. PART II. Parties. 1. When party disqualified. 2. Executors. 3. Administrators. 4. Legatees. 5. Husband. 14 Law of Evidence. 6. Widow. * 7. Mortgagor. 8. Maker of note. 9. General provisions. 1 . When Party Disqualified. Under section 829 of tlie Code of Civil Procedure, a witness is not excluded merely because he is a party to the suit. Ely D. Clute, 19 Hun,- 35. It seems that the party to the proceedings, as well as a person not a party, must be interested in the event before he can be excluded. Allls p. Stafl'ord, 14 Him, 418. Whitehead v. Smith, 81 N. Y., 151. In re Burke, 5 Eedf. 3G9. The fact, that the party examined had no interest at the time of the transaction, etc., with the deceased, is not ma- terial, if he was interested at the time of the examination. Earnsworth ■». Ebbs, 2 Hun, 438. The provision, prohibiting a party from testifying to a personal transaction, does not extend to such transactions with agents of deceased. Pratt ^. Elkins, 80 N. Y., 198. Where a party as agent, lends money on a promissory note, which he afterwards buys, in an action on the note by his administrator, the defendant cannot testify as to a con- versation with deceased, at the time the note was given, so as to prove usury. Jackson v. McLure, 6 W'k Dig., 448. The plaintiff, in an action against the executor of a de- ceased person, is disqualified from testifying in his own behalf, to acts and statements of the deceased which took place in his presence and hearing between deceased and a third person, in which he participated. Trice v. Price, 33 Hun, 69. Code Civ. Peo., § 829. 15 Or what took place between himself and' the deceased. Buchanan v. Millen, 22 W'k Dig. , 235. 2. Executors. The fact, that one is named as executor in an instrument propounded by another as the will of a decedent, does not render him a party to the proceedings; and he is, there- fore, not disqualified, as a party, by section 829, from testifying as to a transaction or communication between himself and the latter. Wlielpley v. Loder, 1 Dem., 368. Even where one so named as executor is a proponent of the alleged will, he is, in his capacity of executor, a party without interest, and, therefore, not included in the prohi- bition of that section, because it is impossible that he should be examined in his own behalf or interest. Whelpley v. Loder, 1 Dem. 368. Reeves v. Crosby, 3 Eedf . 74. An executor, as a party to the proceedings, is not incom- petent under the Code to prove the execution of the will, as a transaction between himself and decedent. In re. Will of Levy, 1 Tucker, 87. Children's Aid So. v. Loveridge, 70 N. Y. , 387. Eugg V. Eugg,-83 N. T., 502, In re. Will of Wilson, 3 N. Y. State R., 613. 3. Administrators. Where the administrator brings an action, he is a party thereto, and we cannot divorce him from the office of administrator, and say that he was not a party, but that the real party to the action is the office of administrator. Poucher v. Scott, 33 Hun, 230. In an action, by an administrator, to recover property of the deceased from persons claiming to own it by gift from testator, his declarations, inconsistent with such claim, are not admissible in favor of the administrator. Graves v. King, 15 Hun, 367. 16 Law of Evidence. 4. Legatees. The testimony of a legatee of the income of property for life, the principal to go to the heirs, as to any transaction with testator, tending to diminish her legacy, by proving advances made during the testator' s lifetime, is inadmissible as against such heirs. Benjamin v. Dimmick, i Redf., 7. 5. Husband. In foreclosure of a mortgage of husband and wife on wife's land, judgment for deiiciency being sought against husband, held, that the latter could not testify as to trans- actions with deceased mortgagee, to prove usury. Whitehead v. Smith, 14 Hun, 531. 6. Widow. A widow who was a party defendant in a partition suit, but who did not answer, and whose right of dower was not dis- puted, is not disqualified by reason of interest, to testify as to whether, or not, a conveyance to an heir-at-law by the intestate, and in which she united, was intended as a gift, her dower being the same whichever way such issue is determined. Moore v. Oviatt, 35 Hun, 216. In an action, brought by judgment creditors of a deceased debtor, against the widow of the deceased, to set aside conveyances made by him to his wife as fraud- ulent as against creditors, the widow is competent to testify to transactions between herself and husband, as plaintiffs do not claim or hold under the husband. Gillies V. Kreuder, 33 Hun, 314. Where a widow brought an action to set aside a deed, executed by herself and her deceased husband, conveying land to defendant in trust, it was held, she was competent to testify to fraudulent representations made to her by her husband, inducing her to make the transfer. Witthaus V. Schack, 21 Hun, 828. Code Civ. Pko., § 829. 17 7. Mortgagor. A mortgagor who, after conveying the mortgaged prem- ises, has been made a party defendant to an action to fore- close the mortgage, but against whom no money judgment was asked, and by wliom no answer lias been put in, is incompetent to testify, in favor of his grantee, to trans- actions witli plaintiff's intestate. Smith V. Hathorn, 25 Hun, 150. Reversed on other grounds, 88 N. Y. 211. 8. Maker of Note. The maker of a note, when sued by the assignee of the deceased payee, is an incomjoetent witness to show that it was given without consideration. Benedict v. Driggs, 34 Hun, 94. 9. General Provisions. Where plaintiff claims title to goods in controversy under a transfer from a deceased person, and defendant claims title as purchaser at a sale on execution against the deceased, the transfer being claimed to be in fraud of creditors, plain- tiff is disqualified from testifying to what occurred between him and deceased, when the goods were transferred to him. Taylor v. Meldrum, 6 Civ. Pro. 235. Where a party is made a trustee of decedent's personal property, and is joined with decedent's administrators, as defendant in an action brought by the cestui-que trust to recover the trust funds, evidence of what transpired between deceased and the trustee, concerning such fund, must be excluded as against the administrator. In such case the trustee is a party in interest. Wilkins v. Baker, 24 Hun, 32. Where defendant, in conversion, claimed a lien on the property, for rent, under the laws of another state, she can- not testify to transactions, by which the lease was made to plaintiff's testator. Hammond v. Schultz, 45 Super. Ct. 611. 18 Law of Evidence. A party cannot testify to a conversation between himself and a deceased grantor, under whose conveyance the oppo- site party claims, though the latter is not the immediate grantee. Pope V. Allen, 90 N. Y., 298. PART III. Persons Interested. 1. Nature and extent of interest. 2. Husband. 3. Wife. 4. Widow. 5. Heirs-at-law. 6. Next of kin. 7. Legatee. 8. Administrator. 9. Attorney. 10. Surviving partner. 11. Stockholder. 12. Maker of note. 13. Indorser. 14. Surety. 15. Lessee. 16. Interest upon contingent liability. 1. Nature and Extent of Interest. The interest which will exclude under the Code is the same interest which had that eif ect at common law, /. e, , a fixed and certain interest in the event of the particular suit. Lathrop v. Hopkins, 29 Hun, 608. Hunter v. Herrick, 26 Hun, 373. Soherrer ii. Kaufman, 1 Dem., 39. The section does not mean an interest in any event of the action, but an interest in the event as respects the party who calls him as a witness. Holman«, Dord, 13 Barb., 336. Code Civ. Pko., § 829. 19 The words, "interested in the event," should be limited, in their application, to the particular issiie or question as to which the witness is to be examined. Moore v. Oviatt, 35 Hun, 316. It is not sulficient to disqualify that a person is interested in the question involved. He 'must be interested in the event. Hobart v. Hobart, 62 N. Y., 80. Steele v. Ward, 30 Hun, 557. 1 Qreenleaf on Ev. § 389. The law looks on a witness as interested, where there is a certain benefit or disadvantage attending the consequence of the cause. I Pliillips onEv., 81. Poucher v. Scott, 33 Hun, 333. The statute means pecuniarily interested. Smith 1). Meaghan, 38 Hun, 423. Steele v. Ward, 30 Hun, 557. The interest which produces incompetency must be present, certain, and vested, and not remote or contingent. In re^ Clark, 40 Hun, 337. 1 Greenleaf on Ev., § 390. Scherrer i). Kaufman, 1 Dem., 39. Steele v. Ward, 30 Hun, 555. It must be a legal interest in the Judgment at the time the witness is sworn. Gourlay v. Hamilton, 1 N. Y. State R., 555. The true test of the interest of a witness, is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence, for, or against him in some other action. 1 Greenleaf on Ev., S 390. Hobart v. Hobart, 63 N. Y., 83 Churcli V. Howard, 79 N. Y., 415. Miller v. Montgomery. 78 N. Y., 383. Steele v. Ward, 30 Hun, 555. Moore v. Oviatt, 85 Hun, 216. In re Clark, 40 Hun, 337. 20 Law op Evidence. 2. Husband. In an action against an administratrix to cancel a mort- gage given to the intestate, the plaintiff s husband, through whom she derives title, is not an incompetent witness to prove, that it was given without 'consideration. Wilson «. Munoz, 6 Civ. Pro., 71. A husband is not interested in the event of a proceeding affecting his wife's title to real estate, simply because he might take as a tenant by the courtesy. In re Clark, 40 Hun, 333. 3. Wife. An inchoate right of dower in lands is a subsisting and valuable interest. Simar ». Canady, 53 N. Y., 398. Witthaus i>. Scliack, 34 Hun, 338. Steele i). Ward, 80 Hun, 553. Also see In re N. Y. C. &H. R. R. Co., 90 X. Y. 342. The wife of an heir-at-law, contesting the probate of a will of real property, is interested in the event. Steele v. Ward, 30 Hun, 555. In re Hewitt, 31 W'k Dig., 296. Even though she is a legatee under the will. In re Hewitt, id. It has, however, been held that the possible right of dower of the wife of a son of a deceased owner of real property, in such of the property as the son might inherit, if decedent should be adjudged to have died intestate, does not dis- qualify her, as a witness, to testify to transactions with deceased. Scherrer v. Kaufman, 1 Dem. 39. 4. Widow. A widow who seeks to establish a gift from her deceased Code Civ. Pro., § 829. 21 husband, by testifying to transactions had with him, is a person interested. Tiltou «. Ormsby, 10 Hun, 7. A widow, on applying for letters of administration, can- not give evidence of a transaction with deceased, as mar- riage. Angevine 9. Angevine, 48 Barb., 417. Nor can she testify to declarations made by him to her. Keator D. Dimmick, 46 Barb., 158. In an action, brought by the heirs of a deceased grantor, to set aside his conveyance on the ground of undue influ- ence, his widow, who as his wife joined in the conveyance, is a person interested in the event. Sanford v. Ellitborp, 95 N. Y., 48. 5. Heirs-at-law. The heirs-at-law and next of kin, who are excluded by the provisions of the will from all rights in the decedent's property, and who seek to defeat the claims of those arising under the will, are persons interested in the event. Sclioonmaker v. Wolford, 30 Hun, 166. Where heirs of a deceased grantor, bring an action to set aside his conveyance, on the ground of undue influence, other heirs, not parties to the action are not interested in the event. Hobart v. Hobart, 63 N. Y., 80. Smith V. Meagban, 38 Hun, 433. 6. Next of Kin. The next of kin is a person interested within the mean- ing of the section, and incompetent when called, by the ad- ministrator, against an assignee of the deceased, to testify in his own interest or behalf. Howell V. Taylor, 11 Hun, 214. Holcomb V. Holcomb, 95 N. Y., 316. 22 Law op Evidence. A son of a deceased person is not interested, where the estate is insolvent. Lathrop ». Hopkins, 29 Hun, 608. 7. Legatee. The beneficiaries under a will cannot testify as to personal transactions with testatrix, tending to establish her testa- mentary capacity. Snyder v. Sherman, 23 Hun, 139. Les'i). Dill, 39 Barb., 516. Lane i). Lane, 95 N. Y., 501. In re Vooliris, 1 How. Pr. N. S., 261. See^Schoonmaiser v. Wolford, 20 Hun, 166. Under section 399 of the Code of Procedure, one entitled to a legacy under the will, could not be examined as to a personal transaction with deceased, as against his executors, although her interest was adverse to that of the party calling her. Gifford V. Sackett, 15 Hun, 79. Bat the Code, as it now stands, has modified section 399 of its predecessor, by inserting the words, " in his own behalf or interest." And a residuary legatee, when called against her interest, is competent. Carpenter v. Soule, 88 N. Y., 251. A residuary legatee, however, cannot testify in favor of his executor to conversations had with the deceased tending to disprove a gift made by the latter. Cornell ». Cornell, 12 Hun, 312. One named as a legatee in a will, on condition that he render certain services of a religious character, is disquali- fied by his interest in the event. In re Burke, 6 Eedf., 369. But where a will makes a person a donee of power, with reasonable compensation for services and care, such person is not beneficially interested, or disqualified from testifying to the execution of the will, under this section. In re Will of Ch^se, 4 N. Y. State R., 195. Code Civ. Pro., § 829. 23 A legatee is interested, where if the will is admitted to probate, she will be entitled to her legacy. Cadmus v. Oakley, 3 Dem, 324. In an action by a son to compel cancellation of his mortgage, given to his deceased father in his lifetime, special and residuary legatees under the father's will, are competent for plaintiff. Carpenter v. Soule, 88 N. Y., 251. A release, by a legatee to the executor or administrator of his interest as such, removes all objections to his compe- tency on the ground of interest, as a witness in proceedings for the probate of a will. Whelpley ». Loder, 1 Dem., 368. Stebbins v. Hart, 4 Dem., SOI. . z >^ - ., In re Will of Wilson, 8 N. Y. State E., GlS./i^J-^^ 8. Administrator. An administrator is interested in the event, where his success would enhance his fees, which, as administrator, he would be entitled to. Pouoher v. Scott, 33 Hun, 230. 9. Attorney. The 1 ien for costs which an attorney has upon his client' s cause of action, does not make him interested in the event. Sherman ». Scott, 27 Hun, 331. Parker «. McCunn, 2 W'kDig., 502. Unless he is to have a certain share of the recovery, or is to receive nothing, unless his clients succeed. Sherman v. Scott, 27 Hun, 331. 10. Surviving Partner. The surviving members of a firm, against whom execution was issued upon a judgment recovered in a former action on 24 Law of Evidence. a note, and returned unsatisfied, are interested in the event, and cannot testify to transactions with the deceased, tending to show deceased was a member of the firm. Hunter v. Herrick, 26 Hun, 272. 11. Stockholder. A stockholder of a corporation cannot testify, in its behalf, as to a personal transaction with the plaintiff's testator. He is a person in interest. Keller «. West, Bradley & Cary Mf 'g Co. , 39 Hun, 348 . But where the stockholder's corporation has a right to reimbursement for any money it may be obliged to pay, a stockholder may testify in behalf of a co defendant, who is thus liable to make such reimbursement. Murray e. Fox, 39 Hun, 108. 12. Maker of Note. In an action on a note against the executor of an indorser the maker of the note who has made default, has not such an interest in the event as to preclude his testimony. Nat. Excli. B'k v. Jones, 9 Daly, 248. Where a note was made by one W, and signed by defend- ant, for his accommodation, and delivered to one B, who thereafter died, on an appeal by the defendant alone, from a judgment against both as defendants, it was held, that W was not a person interested in the event. Allis V. Stafford, 14 Hun, 418. But it was held later, that the maker of a note, for whom H signed as security, who was a party defendant, but did not answer, is a person interested, and incompetent as a witness for the defense, to prove transactions between him- self and plaintiff's intestate. Church v. Howard, 79 N. Y. 415. Hill ». Hotcbkin, 23 Hun, 414. See Lawton v. Sayles, 40 Huu, 252. Code Civ. Pko., § 829. 25 The agent of the maker of a note is not interested, in such a manner as to exclude him on that account. A judgment either way could have no direct legal elfect upon him. Nearpass v. Gilman, 16 Hun, 121. 13. Indorser. An indorser who has never been charged on a note is not interested, and can testify to declarations of deceased to defendant, showing it paid. Nearpass?). Gilman, 16 Hun, 131. 14. Surety. A surety upon a bond of a non-resident executor is inter- ested in the event of the accounting of his principal. Miller ». Montgomery, 78 N. Y. 383. A surety upon such a bond is bound by the decree of the surrogate, made upon a regular accounting, and such decree would be evidence against him in a suit on the bond. \7ilcox V. Smith, 26 Barb. 316. 15. Lessee. In an action for rent against the sureties of the lessee, such lessee being in possession of the leased premises, is incompetent to testify to personal communications made to him by his lessor, as against his executors. He is a person interested, as a judgment in favor of the sureties would leave him in possession, and a judgment against the sure- ties would bind him. Hill ». Woolsey, 42 Hun, 481. 16. Interest upon Contingent Liability. The liability of a deputy sheriff to the sheriff against whom judgment was recovered, for the wrongful acts of 26 Law of Evidence. his deputy, renders him a person interested, in an action by the sheriff against the executors of the attorney who issued the execution, upon a parol indemnity against any loss which might be occasioned by the levy. Barton v. Scramling, 31 Hun, 467. Where an action is brought by the administratrix of A, against a constable, for levying an attachment against B's propertj'^, on the goods of A, the attaching creditors are I)arties interested in the event. Wooster v. Booth, 2 Hun, 436. PART IV. Persons feom, through ok under whom such a Party or interested person derives his title or interest. 1. Grantor. 2. Maker of note. 3. Father. 4. Partner. 1. Grantor. Incompetency extends to grantor through whom party in interest derives title. Soiith V. Cross, 90 N. Y. 549. The claimant to whom executors have paid a claim is competent for executors to prove his contract with deceased, they not having derived any title or interest from him. In re Frazer, 93 N. Y. 340. In an action by administrators to recover property of deceased, alleged to have been converted, evidence of a person through whom defendant claims title, tending to establish a parol gift from deceased, is inadmissible. White V. "White, 16 Wk. Dig. 45. Code Civ. Pro., § 829. 27 Where evidence is given on the part of the plaintiffs, as to certain admissions made by a grantor of the defendant, the testimony of sucli grantor is properly admitted to rebut this evidence, even though it related to transactions had with a deceased person through whom the plaintiffs claim title. Cole 1). Denue, 3 Hud, 610. One who had sold certain chattels to the plaintiff, and as agent of his transferee, had bailed them with defendants without disclosing his agency, it was held, he could not testify to a demand made on one of the defendants since deceased. Conway v. Moulton, 6 Hun, 650. In an action by a grantee of the mortgaged premises, to have the mortgage canceled as paid, one through whom the plaintiff derived title, is incompetent to testify to dec- larations of the deceased mortgagor, as against the plaintiff. Foote 1). Beecher, 78 N. Y. 155. 2. Maker of Note. Under section 399 of the Code of Procedure, it was held that, in an action against the maker of a note, an indorser is incompetent to testify to transactions had with a subse- quent indorser, since deceased, as against the plaintiff', tending to establish usury. Richardson v. Warner, 13 Hun, 13. But the rule that was applied in the above case has been changed, and under section 829, tlie witness would have been competent, as by that section the witness is only pro- hibited from being examined "in his own behalf or inter- est, or in behalf of the party succeeding to his title or interest." Richardson v. Warner, id. The delivery of a promissory note by the maker to the holder, creating the relation of debtor and creditor between 28 Law ojf Evidence. them, involves no such succession of title or interest as is contemplated by section 829. Converse v. Cook, 31 Hun, 417. And the maker is competent to testify to admissions made by the defendant's testator, an accommodation in- dorser, vs^hich tended to show he had been properly charged as an indorser of the note. Converse «. Cook, 31 Hun, 417. 3. Father. A child who has been emancipated does not derive title to earnings for services subsequently rendered, from, through or under the father, in such sense that the father is to be excluded as incompetent. Shirley v. Bennett, 6 Lans. 513. 4. Partner. Formerly, in an action by the executors of a deceased partner, for an accounting and settlement of the part- nership affairs, a partner who has assigned all his interest to a copartner is not competent to prove an agreement between the deceased and such assignee, to allow him com- pensation, for his personal services for managing the firm affairs. Lyon V. Snyder, 61 Barb. 172. And,, it was held, that the prohibition was not limited to an examination in respect to those matters pertaining to the parts of the cause of action assigned, but extended to the entire action. Lyon 4). Snyder, id. Code Civ. Pro., § 829. 29 PART V. A WITNESS MAT NOT BE EXAMINED IN HIS OWN BEHALF OE INTEREST. 1. When disqualified. 2. Co-defendants. 3. Examination of adversary. 4. Examination by adversary. 1 . When disqualified. Section 399 of tlie old Code made no distinction between cases where parties were called as witnesses in their own behalf, or in behalf of a co-defendant, or cases where thej' were jointly and severally liable. Alexander v. Dutcher, 70 N. Y. 385. Bennett v. Austin, 5 Hun, 536. Genet v. Lawyer, 61 Barb. "ill. Whitehead ». Smith, 81 N. Y. 151. But by section 829 of the new Code he is disqualified only when called " in his own behalf or interest," etc. Waver ■». Waver, 15 Hun, 278. Ely V. Clute, 19 Hun, 35, Hill 11. Alvord, 19 Hun, 79. Purcell v. Fry, 19 Hun, 595. Whitehead v. Smith, 81 N. Y. 151. Although one may be a person interested in the event, yet, he is not incompetent to testify to such facts tending to charge decedent, when he is not examined in his own behalf or interest, but against his interest. Allis V. Stafford, 14 Hun, 418. Ely i>. Clute, 19 Hun, 85. Hill «. Alford, l9 Hun, 77. Purcell V. Fry, 19 Hun, 595. Hill V. Hotchkin, 33 Hun, 414. Smith V. Meaghan, 28 Hun, 423. Brown ». Brown, 29 Hun, 498. Converse «. Cook, 31 Hun, 417. Carpenter v. Soule, 88 N. Y. 251, 30 Law op Evidence. The word "behalf " is here used in the sense of advan- tage or ]3rotit. Whelpley v. Loder, 1 Dem. 368. S. Co-defendants. In an action, on a joint and several note, a defendant is competent when called only in behalf of a co-defendant, to prove that the note was usurious. Ely V. Clute, 19 Hun, 35. Hill V. Alvord, 19 Hun, 77. The maker of a note is not a witness in his own behalf or interest, when called in favor of his surety, on an appeal by the surety alone, from a judgment against both as defendants. Allis V. Stafford, 14 Hun, 418. But see Church i). Howard, 79 N. Y. 415, where this case seems to be overruled. A party defendant in a foreclosure suit, called as a wit- ness in behalf of a co-defendant, and who is interested, cannot testify as to a conversation with deceased testatrix of plaintiff. Hadsall i>. Scott, 26 Hun, 617. The fact that a defendant who is a party in interest, was offered for a co-defendant alone, does not render him ad- missible where his testimony may indirectly affect his own interests. Hill V. Hotchkin, 23 Hun, 414. Hadsall v. Scott, 26 Hun, 618. Church V. Howard, 79 N. Y. 415. 3. Examination of adversary. A party cannot examine his adversary as to transactions with a deceased person, and thereby let in his own testi- mony. Corning v. Walker, 28 Hun, 435. Code Civ. Peo., § 829. 31 4. Examination by adversary. The testimony of a party, taken at the instance of his adversary, is admissible in his own behalf, after the death of the latter. Rice V. Motley, 24 Hun, 143. MacDonald «. Woodbury, 30 Hun, 35. Where a party was called by the adverse party and examined, it was held, he could subsequently be examined in his own behalf, and could explain his testimony on cross-examination. Merritt v. Campbell, 79 N. Y. 625. Ham 1). Van Orden, 84 N. Y. 271. So where a plaintiff, suing as executor, proves by a third person a conversation between the testator and the defend- ant, it is competent for the defendant to state whether the conversation testified to ever took place. Gorham v. Price, 25 Hun, 11. But where a witness was called in his own behalf in the first instance, he is incompetent to testify to a conversation in which he took part, where a third person was present, and when no testimony had been given on the other side. Brague v. Lord, 67 N. Y. 495. Kraushaar v. Meyer, 72 N. Y. 602. PART yi. A WITNESS MAT NOT BE EXAMINED IN BEHALF OE THE PAKTT SUCCEEDING TO HIS TITLE OR INTEREST. A case coming under the original section 830 of the Code of Civil Procedure held, that where the wife, to whose title her son succeeds, would have been precluded from testifying in his- behalf, the testimony of the husband was properly excluded. Whitehead v. Smith, 81 N. Y. 151. See same case, 14 Hun, 531. 32 Law of Evidejstce. In an action on a note, made to the order of one F, which had been by him indorsed to plaintiff's intestate, but on which he had never been charged as indorser, it was held, that he was a competent witness for the defendant to prove declarations of deceased, and that he was not called in behalf of the party succeeding to his title or interest. Nearpass v. Oilman, 16 Hun, 131. PART VII. Against whom such witnesses cannot testify. 1. Executors. 2. Administrators. 3. Survivors of deceased persons. 4. Committees of lunatics. 5. Persons deriving title or interest from, through or under a deceased person or lunatic. There are five classes of persons against whom a party in interest, etc., is incompetent to testify. They are as fol- lows : First, Executors. Second, Administrators. Third, Survivors of deceased persons. Fourth, Committees of lunatics. Fifth, Persons deriving title or interest from, through or under a deceased person or lunatic. PART VIII. Executors. This section of the Code does not apply in favor of an executor or administrator in an action against him indi- vidually. Hall «. Richardson, 23 Hun, 444. Stephens i>. Cornell, 33 Hun, 414. Code Civ. Peo., § 829. 33 Alfchough technically a proponent is not an executor under a will until it is admitted to probate, yet, if it is well executed as regards all legal formalities, lie holds before the surrogate the position of an executor, and is protected by this section. Schoonmaker ». Wolford, 20 Hun, 166. Followed, Cadmus «. Oakley, 3 Dam. 327. PART IX. Administeatoes. Where the administrator does not take advantage of the protection given by the statute, it cannot be said that the testimony is against him. Jones V. LeBaron, 3 Dem. 37. An administrator cannot, by voluntarily indemnifying a party, prevent the opposite party from testifying to trans- actions with the deceased person, to which he could other- wise testify. By such indemnity the party does not suc- ceed to the privileges of the administrator. Severn v. Nat. St. B'k, 18 Hun, 338. PART X. SuEviTOKS OF Deceased Peesons. 1. Payee of note. 2. Partners. The same rule applies to survivors as to administrators as to the right of availing themselves of the protection of the statute. Jones V. LeBaron, 3 Dem. 37. 34 . Law op Evidence. 1. Payee of Note. The payee of a note may testify as to a personal transac- tion had with a deceased maker of a joint and several note, in an action against the other maker. Sprague v. Swift, 28 Hun, 49. The defendant, in such a case, is not a survivor within the meaning of the rule. He was severally liable on the note. Sprague ». Swift, id. 2. Partner. In an action against the surviving partner of a firm, plaintiff, or a person interested, cannot testify to a conver- sation between himself and the deceased partner. Green ». Edick, 56 N. Y. 613. Conway i>. Moulton, 6 Hun, 650. Lawton ii. Sayles, 40 Hun, 253. Pettit 1). Geesler, 58 How. Pr. 195. Bristpl V. Sears, 3 Civ. Pro. 328. The above doctrine was applied and extended in favor of one who was not in fact a partner, but had held himself out as such, and was alleged to be such in the complaint. Parley v. Norton, 67 How. Pr. 438. But in an action against the surviving partner of a firm, upon a contract made with the firm, the plaintiff may tes- tify to a personal transaction had with the deceased part- ner, if the defendant was present at the time of its occur- rence. Kale ®. Elliott, 18 Hun, 198. Comstock 11. Hier, 73 N. Y. 269. Code Civ. Pro., § 829. 35 PART XI. Persons , Deriving Title or Interest from, through OR UNDER A DECEASED PeKSON OR LtJNATIC. 1. How construed. 2. Who derives interest. 1. HoTv Construed. The various phrases, employed in the old Code to express the relation to the deceased, which precludes evidence from the opposite party, etc., indicate that the ruling idea was that of succession in interest to the deceased. Gary i>. White, 59 N. Y. 340. Witthaus «. Schack, 34 Hun, 331. Prouty ». Eaton, 41 Barb. 409. Jut the language of the section has been made more geiieral and broader. It includes a person who was not only the immediate successor, but one who deiived title through one or more mesne conveyances. Pope V. Allen, 90 N. Y. 298. S. Who Derives Interest. The words, "deriving title or interest," should be con- srtued as if it read, " claiming to derive title or interest. In re Voorhis, 1 How. Pr. N. S. 263. \ In re Smith, 95 N. Y. 517. This includes the contestants of a will upon the hearing of a special proceeding. Shepard v. Patterson, 3 Dem. 183. The testimony of a grantee is inadmissible after the death of the grantor, as to transactions had with him, as against a son claiming to hold under the deceased. Moyer ®. Meyer, 21 Hun, 67. A stranger in blood to the testatrix, who opposes the 36 Law of Evidence. probate of a will, but who claims as a legatee under for- mer wills, derives an interest under the deceased. In re Smith, 95 N. Y. 517. A judgment creditor does not claim or hold an interest under the debtor within the meaning of the section. Gillies 1). Kreuder, 33 Hun, 314. Same in regard to a creditor petitioning to sell real estate. Jones D. LeBaron, 3 Dem. 87. A transferee of a note is an assignee. Richardson ». Warner, 13 Hun, 13. But a transferee of an accommodation note or a biU given for a special purpose which is negotiated by the maker or the acceptor thereof, contrary to such purpose, is not an assignee. Comstock ». Hier, 73 N. Y. 269. The plaintiff, in an action by a second indorser of a promissory note who has paid and taken it up, against the first indorser, is not precluded by the death of the maker from testifying in his own behalf as to the circumstances of the indorsement. The defendant is not of the class of persons protected by the provisions of section 829. Kelly V. Burroughs, 1 N. Y. State R. 161. Id., 103 N. Y. 93. Where the maker on a check is sued by an assignee of a deceased payee, he cannot testify to a transaction with deceased. Raubitschek v. Blank, 80 N. Y. 478. A wife is admissible to testify to fraudulent representa- tions, made to her by her husband, inducing a conveyance of her dower interest. Such interest is not derived by grantee from deceased husband. Witthaus V. Schack, 24 Hun, 831. Code Civ. Pro., § 829. 37 In an action to establish a deed of conveyance, alleged to have been made by the defendant to her deceased hus- band, his heirs can give evidence of transactions with her- self and deceased husband, as against the defendant, where she takes her title from a person who derives title from her husband. Blaesi v. Blaesi, 3 N. Y. State R. 431. In an action by a widow to enforce a contract against defendant, who was to work the farm for her on the same terms he had worked it for her husband, it was held that her interest in the subject matter of the controversy was not derived from her deceased husband, but from her own contract. Titus J). O'ConDor, 18 Hun, 373. PART XII. Personal TeAnsactions or Communications. 1. "What is a personal transaction or communication ? 2. The test of admissibility. 3. Nature and incidents of transaction excluded. 4. Cannot be proven indirectly. 5. Cannot be proven negatively. 6. Extraneous facts can be given. 7. Intention with which act done. 8. Transaction between deceased and third party. 9. Transactions with agents. 10. Giving of a bond and mortgage. 11. Contents of bonds and agreements, etc. 12. Proof of signature. 13. Alteration of receipt. 14. Address. 15. Signing a pleading, or mortgage. 16. Delivery of property. 17. Note without consideration. 18. Illegal interest. 19. That one is an accommodation indorser. 20. Finding note among papers of deceased. 21. Drawing of lost will. 22. Conversation on execution of will. 38 Law op Evidence. 23. Proving gift. 24. Antenuptial agreement. 25. Acts and appearances of deceased. 26. Attornej''S. 27. Physicians. 28. Cannot prove accuracy of bill of particulars. 29. Proof of services. 30. Payment. 31. Birth. 32. Marriage. 33. Greneral provisions. 1 . "What is a Personal Transaction or Communication ? The word transaction does not embrace all the occur- rences which go to make up a cause of action, but only such as must have been communicated to the deceased to give them effect. Franklin i>. Pinkney, 18 Abb. 186. There is no reason for construing the word "personal," as here used, as meaning "private." Holcomb «. Holcomb, 95 N. Y. 316. Hatch V. Peugnet, 64 Barb. 189. Howell V. Taylor, 11 Hun, 214. But the fact, that another person is competent to speak concerning the same matter, goes far to take the case out of the substantial reason of the statute, yet does not remove the disability. Gary ». White, 59 N. Y. 336. A personal communication, within the true meaning of the section, is any one which the surviving party claims to have received directly or indirectly from the deceased per- son, and which the deceased person, if living, could con- tradict or explain. Price ■». Price, 33 Hun, 74. Stuart B. Patterson, 37 Hun, 113. Transactions and communications embrace every variety of affairs which can form the subject of negotiations, inter- views and actions between two persons, and include every Code Civ. Peo., § 829. 39 method by which, one person can derive any impression or information from the conduct, condition or language of another. Holcomb V. Holcomb, 95 N. Y. 316. Riggs c. Am. Home Mis. So. 35 Hun, C61. Oliver -o. Freligh, 36 Hun, 633. Stuart V. Patterson, 3T Hun, 113. A witness cannot testify to the silence of another when silence would indicate acquiescence, and when such acqui- escence would be a personal transaction. Oliver v. Freligh, 36 Hun, 633. Fox V. Clark, 61 Barb. 216, n. The section relates as well to written as to verbal commu- nications. Ressiguie i>. Mason, 58 Barb. 89. Graham v. Chrystal, 37 How. Pr. 279. 2. The Test of Admissibility. The test of admissibility of the testimony is, does it tend to prove what the transaction was. strong V. Dean, 55 Barb. 337. Stanley «. Whitney, 47 Barb. 586. Koehler v. Adler, 91 N. Y. 657. 3. Nature and Incidents of Transaction Excluded. The nature or character of the transaction cannot be given. Koehler ». Adler, 91 N. Y. 657. All the incidents of the transaction or communication are to be excluded. Dubois 11. Baker, 40 Barb. 556. AfE'd, 30 N. Y. 355. Evidence of admissions as to what took place a t a certa in time concern the transaction to which they lefer. Markell «. Benson, 55 How. Pr. 360. J^'/f[i , , V^'V-" 40 Law op Evidence. A defendant may prove the fact that a conversation was had with plaintiff's deceased partner, unless the mere fact of the conversation is a material fact. Hier v. Graat, 47 N. Y. 278. Maverick v. Marvel, 90 N. Y. 657. 4. Cannot be Proven Indirectly. A fact that a party cannot prove directly by his testi- mony cannot be established inferentially by the same means. JohnsoQ V. Spies, 5 Hun, 468. Jacques v. Elmore, 7 Hun, 675. Grey «. Grey, 47 N. Y. 553. Viall V. Leavens, 39 Hun, 291. It is equally incompetent for the maker to prove by direct testimony that he received a cancelled note from the deceased payee, as indirectly, by stating in substance that he received it from no one else. Grey ». Grey, 47 N. Y. 553. 5. Cannot be Proven Negatively. A party cannot testify to what passed between him and the deceased, in her lifetime, nor that certain conversations did not occur. Clark V. Smitli, 46 Barb. 30. Proof that no personal transaction with the deceased took place, or leading to such inference, is equally inad- missible with evidence that one did take place. Houghey v. Wright, 13 Hun, 179. Howell V. Van Siclen, 6 Hun, 115. Aflf'd, 70 N. Y. 595. Mulqueen v DufCy, 6 Hun, 299. Hill V. Heermans, 17 Hun, 470. Lerche v. Brasher, 37 Hun, 385. Stanley «. Whitney, 47 Barb. 586. Dyer v. Dyer, 48 Barb. 190. Church v. Howard, 79 N. Y. 422. Lewis ». Merrit, 98 N. Y. 206. Carney v. Wadhams, 9 Civ. Pro. 209. Code Civ. Pro., § 829. 41 6. Extraneous facts can be given. A party prohibited from testifying that any personal transaction did or did not take place, is not prohibited from testifying to extraneous facts tending to show that the testimony of another is untrue. Pinney ». Orth, 88 N. Y. 447. Holcomb «. Holcomb, 95 N. Y. 335. Lewis v. Men-it, 98 N. Y. 306. McKenna «. Bolger, 37 Hun, 536. And he can show opposite party's evidence was false, though incidentally the evidence tended to establish the inference that a personal transaction or communication between witness and the deceased had taken place. Lewis i>. Merrit, 98 N. Y. 306. It is not sufficient to produce error, under the section that the fact testified to may tend to corroborate, in some degree, evidence given which involves a transaction between the witness and the deceased person, if the fact itself is an independent one, and does not involve any such transaction. Tomlinson v. Seifert, 2 N. Y. State R. 383. Wadsworth «. Heermans, 85 N. Y. 639. Lewis B. Merrit, 98 N. Y. 306. Saratoga Co. Bk. v. Leach, 37 Huu, 336. 7. Intention with, which Act Done. Party to a ti'ansaction cannot testify as to the intention with which an act was done, as proof of the act itself. Tooley v. Bacon, 8 Hun, 177. AfE'd, 70 N. Y. 34. 8. Transaction between Deceased and Third Party. A party may swear to a conversation or transaction which he may see or hear when the conversation or transaction is between the deceased person and a third party. Simmons v. Sissons, 36 N. Y. 364, 377. Lobdell V. Lobdell, 36 N. Y. 337. Gary v. White, 59 N. Y. 336. NichoUs V. Van Valkenburgh, 15 Hun, 230. 42 Law of Evidence. Steele v. Ward, 30 Hun, 561. Benedict v. Phelps, 2 Wk. Dig. 150. Marsh «. Gilbert, 2 Redf. 465. Patterson v. Copeland, 52 How. Pr. 4(i0. Hildebraudt v. Crawford, 65 N. Y. 107. Badger v. Badger, 88 N. Y. 559. Simmons v. Havens, 101 N. Y. 427. And this is so, though witness participated in the con- versation, if it does not give what is personal between him and the deceased. Gary «. White, 59 N. Y. 336. But a party cannot testify to a conversation between dece- dent and a third person, if it is connected with something that passed between him and the deceased. Brague d, Lord, 67 N. Y. 495. A party cannot testify to a conversation between the deceased and a third person, if he took any part therein. Smith V. Ulman, 26 Hun, 386. Kraushaar v. Meyer, 72 N. Y. 602. Holcomb V. Holcomb, 95 N. Y. 326. A party cannot testify to a conversation with intestate when he took part in the conversation, even if he omits his own share of the conversation. Ross V. Harden, 43 Super. Ct. 427. Nor can he testify to a conversation in which he partici- ]pated, even though at the time of the conversation he had no interest in the subject thereof, or his interest therein was not discussed. Farnsworth u.Ebbs, 2 Hun, 438. The transaction is not personal as regards the witness where it is one wholly independent of the witness, without his inducement, suggestion or participation. Holcomb V. Holcomb, 20 Hun, 159. Steele v. Ward, 30 Hun, 561. Code Civ. Pko., § 829. 43 9. Transactions with Agents. _ A conversation and contract n»ade with the agent of one, since deceased, may be given. Pratt V. Elkins, 80 N. Y. 198. But not where the conversation, overheard by a witness, was between the deceased and an agent of the witness. Head v. Teeter, 10 Hun, 548. A party can testify to a transaction between himself and a deceased agent of the opposite party. Hildebrandt «. Crawford, 6 Lans. 503. AfE'd 65 N. y. 107. The plaintifP, in an action against a corporation, may testify to a transaction with the president of the defendant as its agent, notwithstanding the death of such president, it not appearing that the president was pecuniarily inter- ested in the action. Hunt V. Providence, etc., St. Co. 9 Civ. Pro. 391. The agent of a party may testify to a transaction between himself and opposite party's intestate. Nearpass «. Gilman, 16 Hun, 131. 10. Giving of a Bond, and Mortgage. The giving of a mortgage is a personal transaction. Wilson V. Reynolds, 31 Hun, 46. Also, that a person took no part in its execution. Wilson v. Reynolds, 31 Hun, 46. A bond and mortgage, as well as a check, imports a per- sonal transaction. Wilson «. Reynolds, id. Koehler v. Adler, 91 N. Y. 658. 44 Law oi? Evidence. 11. Contents of Bonds and Agreements, etc. Evidence that, shortly before a bond was signed, it con- tained a certain clause, is inadmissible, as relating to a personal transaction, as it tends to show what was the wording of the bond at the time of its execution. Pease v. Barnett, 30 Hun, 526. But evidence of the physical condition of a bond, is admissible if it is wholly independent of a personal trans- action or communication. Hill V. Heermans, 23 Hun, 455. Wadsworth v. Heermans, 85 N. Y. 639. Giving the contents of a written agreement that had been lost, is testifying to a personal transaction. Hadsall v. Scott, 26 Hun, 617. Lansing o. Hadsall, 26 Hun, 619. Milligan v. Robinson, 16 Wk. Dig. 96. Testimony that, during decedent's lifetime, witness had examined the decedent's account book (shown to have been lost), and that he saw there an entry in the handwriting of the deceased, is not testifying to a personal transaction. Caroll V. Davis, 9 Abb. N. C. 60. 12. Proof of Signature. Proof of the signature of a deceased person to a contract, by the other party thereto, relates to a personal transaction. Garvey u. Owens, 37 Hun, 498. ChafCee «. Goddart, 3 N. Y. State R. 386. Howell V. Manwaring, 3 N. Y. State R. 455. Testimony by plaintiff that the signature of a deed in her possession was in the handwriting of deceased, held, not to involve a personal transaction, as plaintiff might have received the deed from some third j)erson. Simmons v. Havens, 101 N. Y. 433. Proof of the signature of an intestate to an instrument given by him to witness's mother can be given. In re Waldron, 16 Wk. Dig. 38. Code Civ. Peo., § 829. 45 The question, "Is that your signature ?" does not call, necessarily, for a personal transaction or communication. Evans ». Ellis, 23 Hun, 460. Saratoga Co. Bk. ■». Leach, 37 Hun, 336. Proving that one's signature on a note is' a forgery is not testifying to a personal transaction. Saratoga Co. Bk. ». Leach, 37 Hun, 336. 13. Alteration of Receipt. That a receipt has been changed is inadmissible as relat- ing to a personal transaction. Boughton V. Bogardus, 35 Hun, 199. 14. Address. To show that an express package was sent to one individ- ually, rather than to his firm, involves a personal transac- tion or communication. Stuart 1). Patterson, 37 Hun, 113. 15. Signing a Pleading or Mortgage. The act of a party to an action, signing a pleading therein in the presence of another party, is a transaction between them. Denman v. Jayne, 16 Abb. N. S. 317. And the signing of a mortgage. Wilson v. Reynolds, 31 Hun, 46. 16. Delivery of Property. The delivery of a note is a personal transaction. Van Gaidar «. Van Gaidar, 81 N. Y. 625. Waver v. Waver, 15 Hun, 377. Saratoga Co. Bk. v. Leach, 37 Hun, 336. 46 Law op Evidence. And the delivery of an agreement. ChafEee v. Goddart, 3 N. Y. Stale R. 386. And the delivery of a gift. Johnson «. Spies, 5 Hun, 468. Dewey v. Goodenough, 56 Barb. 54. And the delivery of a deed. Bhufelt V. Watrous, 16 Wk. Dig. 198. Also, the non-delivery of a deed. Viall V. Leavens, 39 Hun, 291. The transfer of property involves a personal transaction. Tooley v. Bacon, 70 N. Y. 37. 17. Note without Consideration. Evidence that a note is vrithont consideration involves a personal transaction. Benedict ». Driggs, 34 Hun, 94. Or that it has a consideration. Van Alstyne i). Van Alstyiie, 28 N. Y. 375. Stanley «. Wliitney, 47 Barb. 586. Or that a note sued on was given by the maker to take up a note on which he was bound. Curtis V. Moore, 52 Supr. Ct. 533. 18. Illegal Interest. Evidence as to illegal interest is inadmissible, as it tends to show a personal transaction with deceased. * Alexander i). Dutcher, 7 Hun, 439. Richardson v. Warner, 13 Hun, 13. Stanley v. Whitney, 47 Barb. 586. Genet v Lawyer, 61 Barb. 311. Fox V. Clark, 61 Barb. 311, n. Code Civ. Peo., § 829. 47 19. That one is an accommodation indorser. That one is an accommodation indorser is a personal transaction. Kelly V. Burroughs, 33 Hun, 349. But not where the malter, who is not interested, testifies to this fact. Nat. Exch. Bk. i). Jones, 10 Wk. Dig. 132. 20. Finding Note among Papers of Deceased. The finding of a note among the papei's of the deceased, made by the defendant and x^ayable to the deceased, con- cerns a transaction between them. Sweet «. Low, 38 Hun, 433. 21. Drawing of Lost Will. The drawing of a lost will by the proponent, and its execution by the testatrix, presumptuously involves a personal transaction between them. In re will of Smith, 95 N. Y., 524. Also that the will was made from a certain memorandum, and both on the same day. In re will of Smith, id. 22. Conversation on Execution of Will. A legatee and executrix cannot testify to anything said by her to the testator on the execution of a will, or to what he communicated to her or others in reply. Lane v. Lane, 95 N. Y. 494. 23. {"roving Gift. A wife is not competent to prove a donatio causa mortis by her husband shortly prior to his death. Conklin v. Conklin, 20 Hun, 378. 48 Law op Evidence. Evidence tending to prove a parol gift by the decedent, involves a personal transaction. White V. White, 16 Wk. Dig. 45. 24. Ante Nuptial Agreement. The question, "who provided the necessaries for the house," etc., as evidence by the wife of the performance on her part of an ante nuptial agreement, held, not to call, necessarily, for a personal transaction or communication with her deceased husband. Denise «. Denise, 2 N. Y. State R. 175. 25. Acts and Appearances of Deceased. Where plaintiff sought to recover as upon a quantum meruit for services rendered to an invalid, her testimony as to her condition and actions, showed the extent, and the nature and value of personal transactions with deceased. Campbell i). Hubbard, 38 Hun, 306. The acts and appearances of a deceased grantor tending to show he was intoxicated at the time he executed a deed, are inadmissible. Smith «. Meaghan,40 Hun, 401. See Holcomb d. Holcomb, 95 N. T. 316. 26. Attorneys. The giving of counsel and advice by an attorney to a client constitutes a personal transaction. SomervlUe v. Crook, 9 Hun, 664. Brague v. Lord, 67 N. Y. 495. So it is incompetent to testify to services performed for the intestate. Lerche «. Brasher, 37 Hun, 385. Rev'd, 4 N. Y. State R. 335. Burnett v. Noble, 5 Redf . 69. Code Civ. Pro., § 829. 49 Whether one commenced any action for the deceased, is inadmissible as calling for evidence of employment by him. Freeman «. Lawerance, 43 Super. Ct. 288. 27. Physicians. A physician cannot prove his attendance upon, and services for the deceased. Ross ®. Ross, 6 Hun, 182. Nor is his diary in which he enters his visits, admissible, in the absence of proof that he keeps correct books. Knight «. Cunnington, 6 Hun, 100. But his books are admissible to show services to the deceased, though relating to a personal transaction, where the rendering of part of the services, and that he kept cor- rect accounts, are proved by others. Wetmore «. Peck, 19 Alb. L. J. 400. 28. Cannot Prove Accuracy of Bill of Particulars. Plaintiff cannot testify to the accuracy of a bill of par- ticulars made and served after testator's death, containing a statement of the contract price of the services rendered, and goods sold to defendant's testator. Fisher ». Verplanclt, 17 Hun, 150. Lerche «. Brasher, 37 Hun, 385. Nor that the claims have not been paid. Howell V. Van Siclen, 6 Hun, 115. But see Lerche v. Brasher, 4 N. Y. State R. 335. 29. Proof of Services. Where the employment of the plaintiff, and the rendi- tion of the services by him, were proved by witnesses other 4 50 Law of Evidence. than himself, held, his testimony as to their value, did not relate to a personal transaction. Burrows ». Butler, 38 Hun, 157. Lerche v. Brasher, 4 N Y. State R. 335. Defendant's testimony of the hiring by deceased of a part of her house at an agreed rental, and the occupation there- of, involves a personal transaction. Hammond ». Schultze, 45 Super. Ct. 611. 30. Payment. An agreement to pay a certain price for land is a personal transaction. Chadwick ». Fonner, 69 N. Y. 406. Proof of payment relates to a personal transaction. Weed 1). Hornby, 35 Hun, 583. Church «. Howard, 79 N. Y. 415. As well as non-payment. Howell V. Van Siclen, 6 Hun, 115. See Lerche ». Brasher, 4 N. Y. State R. 335. Or whether a certain sum was all one ever paid. Boughton V. Bogardus, 85 Hun, 199. Williams v. Davis, 7 Civ. Pro. 383. Or whether one had ever received any money from deceased or from any one representing him. Baldwin v. Smidt, 5 Hun, 454. The payment of rent is a transaction. Barrett v. Carter, 3 Lans. 73. A payment is not necessarily a ijersonal transaction unless made to the deceased. Kerr v. McGuire, 28 N. Y. 446. Code Civ. Pro., § 829. .51 31. Birth. A mother may testify as to the date of the birth of her child. Iq re Paige, 62 Barb. 476. 32. Marriage. Whether a widow suing her husband's grantee to recover dower is competent to prove marriage, qusere. Spicer v. Spioer, 16 Abb. N. S. 113. 33. General Provisions. Defendant canuoL testify to a conversation with the alleged intestate, though the conversation tends to establish defendant's claim that he is still alive. Parhan v. Moran, 4 Hud, 717. Aflf'd, 71-]Sr. Y. 596. Proof of death by the assignee of a policy of insurance is not evidence of a personal transaction. CannoQ a. N. W. Mut. L. Ins. Co., 29 Hun, 470. One cannot testify why he asked to borrow a certain sum instead of asking that it be paid on a note owned by deceased. ^Vood V. Holmes, 19 Wk. Dig. 121. And defendant cannot testify that he informed intestate that her money was to be invested in a certain manner. Card V. Duryea, 66 N. Y. 651. As a witness cannot give the incidents of ,a transaction, he cannot prove that he carried an inkstand with him to an interview with deceased. Dubois ». Baker, 30 N. Y. 355, 869. 52 Law of Evidence. A bailment sought to be established against the deceased's estate is a personal transaction. Price V. Price, 33 Hun, 74. Where the complaint alleged that defendant's testator received from the plaintiff on a certain day a certain amount in U. S. bonds, for safe keeping, the suit being for the value of the bonds, the plaintiff is competent to state the exact number of bonds which she then possessed. Price V. Brown, 5 N. Y. State, R. 7. PAET XIII. Exceptions. There are two exceptions to the rule excluding witnesses from testifying to transactions or communications nad with deceased persons. They are : First, Where the executor, administrator, survivor, com- mittee, or person so deriving title or interest, is examined in his own behalf. Second, Where the testimony of the lunatic or deceased person is given in evidence concerning the same transac- tion or communication. PART XIV. Where THE Executor, Administrator, Survivor, Com- mittee OR Person is Examined in his own Behalf. 1. Concerning the same transaction. 2. Where executor examined. 3. Where assignee of title examined. 4. Evidence called out on cross-examination. 5. Where surviving partner has testified. A party cannot be examined as a witness in his own be- half against the administrator or assignee of a deceased person as to any transaction or communication had by him Code Civ. Pro., § 829. 53 with deceased, unless the administrator or assignee has been examined in his own b transaction or communication. been examined in his own behalf concerning the same Ward V. Plato, 23 Hun, 403. Sweet V. Low, 38 Hun, 433. Trimmer v. Trimmer, 90 N. Y. 675. Markell v. Benson, 55 How. Pr. 360. 1. Concerning the Same Transaction. The words "concerning the same transaction," etc., relate as well to the first exception as to the second. Ward V. Plato, 33 Hun, 402. When the plaintiff, an administrator, testifies to a con- versation between him and the defendant, which related and referred to the transaction between the deceased and the defendant upon which the case turned, he gives evi- dence concerning the same transaction or communication upon which the defendant is subsequently examined. Markell v. Benson, 55 How. Pr. 860. .^^/Y t f n 2. Where Executor Examined. Where the defendant and executrix, who was the univer- sal legatee of the testator, had been examined in her own behalf, tou(jhing a transaction with deceased, the plaintiff is competent to testify concerning the same transaction, etc. Clark «. Bruce, 12 Hun, 274. The testimony of a party is competent where it tends to repel a presumption arising from the facts testified to by the executor. Lewis 11. Merrit, 98 N. Y. 207. Although testimony may be competent to repel an infer- ence arising from a fact testified to by the opposite party, that offered for the purpose of establishing an affirmative defense, resting in a transaction not adverted to in the tes- timony of the opposite party is not competent. Lewis «. Merrit, 5 N. Y. State R. 374. 54 Law of Evidence. A contestant is admissible to testify where tlie account- ing party has been examined concerning tlie same transac- tion. Shepard v. Patterson, 3 Dem. 183. 3. Where Assignee of Title Examined. Where plaintiff had been previously examined in her own behalf, to establish her title derived from the deceased, any party t;o the transaction is competent as a witness in behalf of the defendant, to testify to the facts on which the claim of fraud was founded. Sacia *. Decker, 1 Civ. Pro. 47. 4. Evidence Called out on Cross-Examination. Where a party, upon cross-examination of the adverse party, draws out testimony in regard to a personal trans- action with a deceased person, this does not bring him within the exception to the prohibition and permit him to testify, as in such cases the adverse party is not examined " in his own behalf," but against his interest. Corning v. Walker, 28 Hun, 435. Aff'd 100 N. T. 547. Sweet «. Low, 28 Hun, 432. The competency of a witness is not restored where evi- dence objected to had only been in part called out by the adverse party's examination of the witness, and was either drawn out by the plaintiff's counsel in the face of objec- tions interposed by the defendants, or on cross-examina- tion as to matters stated by the witness on his direct examination. Taylor v. Meldrum, 6 Civ. Pro. 235. 5. Where Surviving Partner has Testified. The fact that a surviving partner, being plaintiff, has testified to a conversation with the defendant on the sub- ject of a contract, does not authorize the defendant to tes- Code Civ. Pro., § 829. 55 tify to conversations between him and the deceased partner on the same subject. Goodwin v. Hirsch, 37 Super. Ct. 503. Whether such testimony by plaintiff, which, in itself, contains such a reference to what was said or done between the defendant and the deceased partner, as that a knowl- edge thereof would be necessary to an understanding of the conversation between the plaintiff and defendant, the defendant can testify as to what took place between him and the deceased partner, quaere. Goodwin ». Hirsch, id. But if the plaintiff undertakes to testify as to what oc- curred between defendant and the deceased partner, and the evidence thus given has the force of testimony, the door is open to the defendant to testify on the same sub- jects. Goodwin v. Hirsch, id. Where the survivor, after testifying in his own behalf to the sale and the delivery of goods, testifies, without objec- tion, that no part of the bill has ever been paid, the ad- verse party cannot testify, over survivor's objections, that he paid the bill in question to the deceased partner. Pettit V. Geesler, 58 How. Pr. 195. PAET XV. Where the Testimony of the Lunatic or Deceased Person is Given in Evidence concerning the same Transaction or Communication. 1. Construction of rule. 2. Party can contradict such testimony. 3 Testimony not to be offered by party testifying. 4. Letters and books of account not testimony of de- ceased. 5. Surviving partner competent to contradict testimony. 56 Law op Evidence. 1. Construction of Rule. The intent of the statute is to prevent injustice and undue advantage; such inequality and injustice does not exist, however, wliere the deceased party has spoken and his statement of the transaction is put in evidence. Potts V. Mayer, 86 N. T. 302. The true Construction of this part of the section is that if the testator has been examined as a witness in his life- time in any action, suit or proceeding, and such testimony shall be offered and given in evidence, after his decease, in any action, suit or proceeding, then the prohibition of said section does not extend to any transaction or communica- tion which shall appear in the testator's testimony, so taken in his lifetime. Benjamin i>. Dimmick, 4 Redf. 13. Evidence of a personal transaction, within section 829, is not rendered admissible by the introduction in evidence of the testimony of the deceased in another action which does not refer to said transaction. Wood «. Holmes, 19 Wk. Dig. 121. 2. Party can Contradict such testimony. Where testimony of deceased plaintiff, given on a for- mer trial, is read on the second trial, defendant may con- tradict, correct and supplement the same as to all that took place at the interview. Robljins ». Pultze, 48 Super. Ct. 510. 3. Testimony not to be Oflfered by Party Testifying. This exception, allowing a party to testify as to any communication as to which the testimony of the deceased has been put in evidence, only applies to cases in which such testimony is given by the adverse party, and not by one who offers himself as a witness to testify to such trans- actions. Miller «. Adkins, 9 Hun, 9. Code Civ. Pko., § 829. 57 As where there is a stipulation that a statement may be read as plaintiffs testimony, defendant can read such stipu- lation on a trial after plaintifl" s decease, but not thereby to testify to personal transactions with him. Miller v. Adkin, 9 Hun, 9, 4. Letters and Books of Account not Testimony of Deceased. Plaintiff offering his letters to defendant, in evidence which referred to a statement of plaintiff's deceased assignor, does not open the door for defendant to testify to a conversation with deceased, in reference to the same matter. Farrell v. Krum, 17 Wk. Dig. 471. The testator's bonks of account introduced in evidence by the executors, are not " the testimony of the deceased" within the exception of said section. Benjamin ». Dimmick, 4 Redf. 7. But where on an application by a child for his share of his father's estate, the executors claim to deduct a sum alleged to have been advanced to him by the deceased, and, to prove such advancement, put in evidence an entry made by the testator in one of his books, the child is entitled to testify in reference to such advancement, and explain or deny such entry. Marsh v. Brown, 18 Hjin, 319. 5. Surviving Partner Competent to Contradict Tes- timony. Where the cross-examination of a deceased partner on a former trial is read in evidence against the survivor by the opposite party on a second trial, the survivor is competen t in his own behalf to contradict or correct such evidence. Potts V. Mayer, 86 N. Y. 302. Law op Evidence. PAET XVI. Objections. 1. General provisions. 2. What objections sufficient. 3. Miscellaneous provisions. 1. General Provisions. The incompetency of witnesses is to be made out by the party alleging the same. Gary v. White, 59 N. Y. 336. Steele «. Ward, 30 Hun, 560. There is no distinction between actions of a legal and those of an equitable nature in respect to the availability of exceptions taken upon the trial, upon the admission of incompetent evidence. Foote B. Beecher, 78 N. Y. 155. A witness is entitled to be sworn as a witness on his own behalf, although he is not competent to testify concerning a personal transaction or communication between the witness and the deceased person. Card V. Card, 39 N. Y. 317. Hoar ». Hoar, 23 Hun, 33. Miller ®. Montgomery, 78 N. Y. 283. The general rule is that the objection must be made when the incompetent evidence is offered. Miller v. Montgomery, 78 N. Y. 286. But if the objection be not made at the time, and the omission be shown to have been from mistake or inadvert- ance, the trial court may permit it to be made at any time before the close of the trial by motion to strike out the incompetent evidence. Miller v. Montgomery, id. Code Civ. Pro., § 829. 69 If the original question does not necessarily show the incompetency of the testimony, the defendant has the right to cross-examine the witness in regard to the ailswer, with- out waiving his objection, and when from such examination the testimony appears incompetent under this section, it should be stricken out on motion. Mills v. Kemochan, 3 N. Y. State R. 153. The fact that the testimony was not objected to under section 829, when given, does not prevent a party from moving now to strike it out. In re Burke, 5 Redf . 369. Section 829 cannot be invoked to question an allegation of error when the question objected to does not call for an answer prohibited by said section, although the answer falls within such i)rohibition, unless a motion to strike out such answer is promptly made. Denise v. Denise, 2 N. Y. State R. 175. 2. "What Objections Suflacient. It is not enough to object to the compietency of the witness, "under section 829 of the Code of Civil Procedure. ' ' Hoar V. Hoar, 38 Hun, 33. Riggs V. Am. Home Mis. So., 35 Hun, 656. Ham V. Van Orden, 84 N. Y. 371. Sanford «. Ellithorp, 95 N. Y. 53. 'ISTor are simply the words "objected to" sufficient. Levin ii. Russell, 43 N. Y. 351. W^illiams v. Sargeant, 46 N. Y. 481. Somerville v. Crook, 9 Hun, 664. Quinby v. Strauss, 90 N. Y. 664. Objections to testimony under section 829 of the Code of Civil Procedure must be specific. Hoar V. Hoar, 33 Hun, 33. Riggs v. Am. Home Mis. So., 35 Hun, 656. Somerville v. Crook, 9 Hun, 664. Hobart ». Hobart, 63 N Y. 80. Stevens «. Brennan, 79 N. Y. 354. 60 Law op Evidence. A general question should not be allowed when a special objection is made. Bristol i>. Sears, 3 Civ. Pro. 369. A general objection can only be considered as applying to the competency or materiality of the point sought to be proved, and not to the competency of the witness to testify upon the subject. Stevens v. Brennan, 79 N. Y. 354. An objection to a question, calling for such testimony, to the effect that it relates to personal transactions with deceased, is sufficient. It is not necessary to refer to the section of the Code, or other authority by which the objection could be sustained. Sanford v. Ellithorp, 95 N. Y. 48. Boughton 1). Bogardus, 35 Hun, 198. 3. Miscellaneous Provisions. When the evidence is legally improper, and the objection to it could not be removed if the attention of the party offering it were called to the particular objection, then a general objection is sufficient to justify a ruling rejecting it. Mulqueen t). Duffy, 6 Hun, 299. Where there is simply a general objection to evidence, the decision of the trial court, overruling the same, will be sustained, unless there be some ground which could not have been obviated if it had been specified, or unless the evidence called for was in any aspect of the case incompe- tent. Tooley v. Bacon, 70 N. Y. 34. Quinby v. Strauss, 90 N. Y. 664. An error in receiving incompetent evidence if properly excepted to can only be disregarded when it can be seen that it could do no harm. Foote V. Beecher, 78 N. Y. 155. Pattersonz/. Copeland, 52 How. Pr. 460. 'Code Civ. Pro., § 829. 61 Where an objection to evidence has once been made and overruled, it is not required to repeat tlie objection, where subsequent questions call for the same class of evidence relating to the same subject matter. Hobart v. Hobart, 6"} N. Y. 80. Church V. Howard, 79 N. Y. 415. Schoomnaker «. Wolford, 20 Hun, 166. Where an objection, that might have been obviated, was not taken at the trial, it cannot be raised on appeal. Hight V. People, 50 N. Y. 392. Sacia u. Decker, 1 Civ. Pro. 47. PART XVII. HiSTOEicAL View. Under "An act to simplify and abridge the practice, pleadings and proceedings of the courts of this State," passed April 12, 1848, it was enacted (chap. 379, page 560, § 351) that " no person offered as a witness shall be excluded by reason of his interest in the event of the action." This section is qualified by section 352, which corres- ponds in some degree to the qualification of the general rule as laid down by the Code of Procedure, § 399, and later by the Code of Civil Procedure, § 829. This section declares that "the last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thilig in action, assigned for the purpose of making him a witness." This section was amended July 10, 1851, by section 399 of the Code of Procedure, and from that time to its amend- ment by the laws of 1857 it stood as follows : " The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prose- cuted or defended. When an assignor of a thing in action, or contract, is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received. But such as- signor shall not be admitted to be examined in behalf of 62 Law op Evidence. any person, deriving title through or from him, against an assignee, or an executor or administrator, unless the other party to siioh contract, or thing in action, whom the defendant or plaintiff represents, is living, and his testi- mony can be procured for such examination, nor unless at least ten days' notice of such intended examination of the assignor, specifying the poin ts upon v^hich he is intended to be examined, shall be given in v^^riting to the adverse party." From the amendment passed April 13, 1857, chap. 353, to the amendment of the section by the laws of 1858, it pro- vides that: "A party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness, but such examination shall not be had, nor shall any other person, for whose immediate benefit the same is prosecuted, or defended, be so examined, unless the adverse party, or person in interest, is living, nor when the opposite party shall be the assignee, administrator, executor or legal representative of a deceased person; nor unless ten days' notice of such intended examination of the party or person interested, specifying tJie points upon wTiicTi such party or person is intended to he examined^ shall he given in writing to the adverse party, except t?tat in special proceedings of a summary nature such reasona- hle notice of such intended exaonination shall he given as shall he prescrihed hy the court or judge. And when notice of such intended examination shall be given in an action or proceeding in which the opposite party shall reside out of the jurisdiction of the court, such party may be exam- ined by commission issued and executed as now provided by law; and whenever a party or x^erson in interest has been examined under the provisions o^ this section, the other party or person in interest may oifer himself as a witness in his own behalf, and shall be so received. ' ' When an assignor of a thing in action or contract is examined as a witness on behalf of any pei'son deriving title through or from him, the adverse party may ofl^er him- self as a witness to the same matter in his own behalf, and shall be so received, and to any matter that will discharge him from any liability the testimony of the assignor tends to render him liable for. But such assignor shall not be admitted to be examined, in behalf of any person deriving title through or from him, against an assignee or an execu- tor or administrator, unless the other party to such con- tract, or thing in action, whom the defendant or plaintiff Code Civ. Pro., § 829. 63 represents, is living and his testimony can be procured for such examination, nor unless at least ten days' notice of such intended examination of the assignor, specifying the points upon which he is intended to he examined, shall be given in writing to the adverse party." The next year, April 17, 1858 (chap. 306), this section was amended as follows : By inserting after the words "ten days' notice," when- ever they occur in said section, the words following, '■Hf the action he in a court of record, and in all other cases four days'' notice.'''' From the amendment of April 16, 1859 (chap. 428), to the amendment of 1860, the section was modified as follows : By leaving out the amendment of 1858 and so much of the section amended by the Laws of 1857 as are in italics, and inserting the words "m any action or proceeding'''' after the words "and when" and before the words "the opposite party." From the amendment of April 16, 1860 (chap. 459), to the amendment of 1862, this section of the Code declared that : "A party to an action or special proceeding, including proceedings surrogates' courts and proceedings for the summary recovery of the possession of land, may be exam- ined as a witness on his own behalf, or in behalf of any other party, in the same manner and subject to the same rules of examination as any other witnesses; except that a party shall not he examined against parties who are rep- resentatives of a deceased person in respect to any tran- sactions had personally hetween the deceased person and the witness; and except, also, that neither hushand or wife, shall he required to disclose any communication made hy one to the other. From the amendment of April 23d, 1862, chapter 460, to the amendment of 1863, it read as follows : By omitting the portion of the laws of 1860, in italics, and immediately adding : "Provided, however, that the assignor of a thing in action, shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf in respect to any transaction or communication had personally by said assignor, or said party respectively, with a deceased person, against parties who are the executors, administra- tors, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action immediately from said deceased person, or have been sued 64 Law of Evidence. as such by the executors, administrators, heirs-at-law, next of kin, or assignees. But where such executors, adminis- trators, heirs-at-law, next of kin or assignees, shall be examined on their own behalf, in regard to any conver- sation or transaction had between the deceased person and said assignor, or said party respectively, then the said assignor or the said party may be examined in regard to such conversation or transaction, but not in regard to any new matter." From the amendment of May 4th, 1863, chapter 392, to the amendment of 1865, the section read with this addition: "But if the testimony of a party to the action or proceed- ing has been taken, and he shall afterwards die, and after his death the testimony, so tajien, shall be used upon any trial or hearing, in behalf of his executors, administrators, heirs-at-law, next of kin, or assignees, the other party, or the assignor of a thing in action, shall be a competent witness as to any and all matters to which the testimony so taken relates, notwithstanding anything in this section contained to the contrary thereof." The section was again amended April 29th, 1865, chapter 615, so as to read as follows: "A party to an action or special proceeding, in any and all courts, and before any and all tribunals, and before any and all officers, acting judicially, may be examined as a witness on his own behalf, or in behalf of any other party in the same manner, and subject to the same rules of examination as any other witnesses." And by immediately adding the amendments of 1862 and 1863, and the' words " and nothing contained in section eight of this act shall be held or construed to affect or restrain the operation of this section," and by inserting after the word " administrators," wherever it occurs, the word "devisees." Then the section was still further enlarged by the amend- ment of April 27th, 1866, chapter 824, which declared that: " A party to an action or special proceeding, in any and all courts, and before any and all tribunals, and before any and all officers, and persons acting judicially, may be examined as a witness on his own behalf, or in behalf of any other party in the same manner, and subject to the same rules of examination, as any other witness, provided, however, that the assignor of a thing in action, or any person who has a legal or equitable interest, which may be affected by the event of the action, shall not be examined on behalf of the assignee or party through whom such interest would be affected, nor shall a party to an action be Code Civ. Peo., § 829. 65 examined on his own behalf, or in behalf of any other party, in respect to any transaction or communication, had personally by said assignor, person, or said party respect- ively, with a deceased person, against parties who are the ■ executors, administrators, devisees, heirs-at-law, next of kin, or survivor of a person, or party jointly interested, or assignees of such deceased person,' where they have acquired title to the cause of action, or the subject matter involved in the action, from the deceased person or party jointly interested, or are sued as, or by reason or in conse- quence of their being, such executors, administrators, devisees, heirs-at-law, next of kin, surviving partners or assignees ; nor in respect to any transaction or communi- * cation, had personally with a person who at the time of the trial is an insane person or lunatic, where the action or pro- ceeding is prosecuted or defended on the behalf of such insane person or lunatic, nor in any such action or proceed- ing, as against such parties, shall any party or person be admitted to testify in regard to such matter, in behalf of any party whose interest in the action, or proceeding, (either by voluntary act, or by legal proceedings, or by operation of law) directly or indirectly, grows out of, or is founded upon, a transaction between the deceased and the party or person called as a witness, or grows out of, or is founded upon, any prior or present rights or interests, of the party or person called as a witness, in or to the estate or property that is the subject of or involved in the contro- versy, or where the interest of the party for whom he is called substantially represents an interest that the person or party called as a witness has or has had, growing out of the transaction of the deceased, about which he is called to testify. But where such executors, administrators, devi- sees, heirs-at-law, next of kin, survivors or assignees, shall be examined on their own behalf, in regard to any conver- sation or transaction had between the deceased person and said assignor, or said party or persons respectively, then the said assignor, party or person may be examined in regard to such conversation or transaction, but not in regard to any new matter. But if the testimony of a party to an action or proceeding shall have been, or shall be taken, and he shall afterwards die, and after his death the testimony so taken shall be used upon any trial, hear- ing or proceeding, in behalf of his executors, administra- tors, devisees, heirs-at-law, next of kin, survivors, or assignees, the other party, the assignor, or person in inter- est as aforesaid, or the one through and from whom the 5 66 Law of Evideno:^. said rights or interests have been derived, shall be a com- pe'tent witness, as to any and all matters, to which the tes- timony of the deceased, so taken, relates. And nothing contained in section eight of this act shall be held or con- strued to affect or restrain the operation of this section. And nothing herein contained shall be held or construed to give the right to a party in a criminal action to testify upon the trial thereof." From the amendment of April 25th, 1867, the section stood substantially as the amendment of 1866. The section was again amended May 12th, 1869, chapter 883, and from that time to its incorporation September 1st, ' 1877, in the Code of Civil Procedure, as section 829, it read as follows : "No party to an action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested per- son derives any interest or title, by assignment or other- wise, shall be examined as a witness in regard to any per- sonal transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the executor, administrator, heir- at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, or as to which the testimony of such deceased person or lunatic shall be given in evidence." This last amendment of the section was found too broad, as parties and persons interested, etc. , were precluded from testifying, even when called against their interest. The danger which the section was intended to guard against being removed, the prohibition was too restrictive of the general rule, that "a person shall not be excluded from being a witness, by reason of his or her interest in the event." And so, by section 829, which succeeded this section, they were forbidden to testify, only when called in their own behalf, or in behalf of the party succeeding to their title or interest. The provision also in regard to the parties against whom such evidence was incompetent, is slightly changed by sec- tion 829, by which an "heir-at-law, next of kin, assignee, Code Civ. Pro., § 829. 67 legatee and devisee of a deceased person, and an assignee of an insane person," are included under the general clause, "A person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise." In other respects, there is no material difference between the two amendments. 68 Law of Evidence. § 830. When Party, etc., cannot be examined. When Party has died. Where a party has died since the trial of an action, on {or) 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 of the Code is new, and was inserted by chapter 542 of the laws of 1879. The present section is the same as the common law rule in its application to parties examined as witnesses. Bradley «. Mirick, 25 Hun, 273. Affirmed; 91 N. Y. 293. This section is remedial, and should be liberally con- strued. Moreliouse v. Morehouse, 3 N. Y. State R. 793. The trial is concluded when the case is closed and sub- mitted to the jury, except for the purposes of article three, title one, chapter ten, of the Code of Civil Procedure. Lawson v. Jones, 61 How. Pr. 434. Evidence given on a former trial, by a witness since deceased, is rendered competent by this section. Zimmer v. Wheeler, 3 N. Y. State R. 335. Code Civ. Pko., § 830. 69 It tenders competent, First. The testimony given on a former trial, in case such, party has since died. Second. The testimony given on a former trial of any person v^ho since then has become incompetent to be exam- ined on a subsequent trial by virtue of section 829. Morehouse d. Morehouse, 3 N. Y. State R. 792. Where the parties are the same, or in privity, and the issues, or the point in issue, the same, such evidence is admissible. Morehouse v. Morehouse, id. Although the parties are not quite the same, if the sub- ject matter to be now established is the same against the party against v?hom the testimony is offered, as upon a former trial, and was of as much importance to that issue as it is to this, the witness being dead, the testimony taken in such other action will be admitted. Morehouse v. Morehouse, id. Where upon a second trial, the first having proceeded as by default, the minutes of the testimony of B, the original plaintiff, given on the first trial, he having died in the meantime, were offered in evidence, such evidence was held competent. That as defendant had the power to appear and cross-examine, his failure to do so was a waiver of that privilege. Bradley v. Mirlck, 91 N. Y. 293. A party who has been examined on the first trial, and who is rendered incompetent by the death of his adversary before the second trial, may have his testimony, given on such former trial, read at any subsequent trial. Lawson v. Jones, 61 How. Pr. 424. 70 Law of Evidence. § 831. Whew Husband and Wife not Competent Witnesses. When Competent. A husband or a wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allega- tion of adultery, except to prove the marriage, or disprove the allegation of adultery. 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 mat- ter 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 part of the section was taken substantially from sections two and three of the laws of 1867, chapter 887, which were as follows : § 2. Nothing herein contained, shall render any husband or wife competent, or compellable to give evidence, for or against the other, in any criminal action or proceeding, (except to prove the fact of marriage, in case of bigamy) or in any action or proceeding instituted, in consequence of adultery, or in any action or proceeding for divorce on account of adultery, (except to prove the fact of marriage), or in any action or proceeding, for or on account of crim- inal conversation. § 3. No husband or wife shall be compellable to disclose any confidential communication, made by one to the other during their marriage. The last part of the section is similar to chapter 426 of the laws of 1876, and is the same as that enacted by chap- Code Civ. Pro., § 831. 71 ter 416, of the laws of 1877, witli the exception that the words, "not a competent witness for the plaintiff, but she " were inserted by the amendment of 1880, chapter 149. Common Law Rule. The rule that obtained at common law, and for some time after the enactment of the Code of Procedure, was to the effect, that a husband and wife could not in any case be admitted as witnesses for or against the other. Davis V. Dinwoody, 4 Term R, 678. Hasbrouck v. Vandervoort, 9 N. Y. 153. Erwin v. Smaller, 3 Sandf . 340. It was said, "that husband and wife cannot be admitted as witnesses for each other, because their interests are absolutely the same ; nor against each other, because con- trary to the legal policy of marriage." Buller N. P. 286. This exclusion was founded upon public policy, and not the interest of the witness. Hasbrouck v. Vandervoort, 9 N. Y. 153. Under Subsequent Enactments. Under the Code of Procedure, as it stood on the amend- ment of 1859, husband and wife were held competent to testify, in their own behalf, in a case where they were joined as co-plaintiffs or co-defendants. Marsh v. Potter, 80 Barb. 508. Schaffner ». Keuler, 37 Barb. 44. Hooper v. Hooper, 43 Barb. 392. But before the act of 1860, as well as since the amend- ment of 1862, and up to the amendment of 1867, husband and wife were not in general admissible as witnesses for or against each other. Moffat V. Mount, 17 Abb. 4. Under the act of 1860 it was held, that husbands and wives, might be examined as witnesses like any other par- 72 Law op Evidence. ties, except they could not be required to disclose any communications made by one to the other. Barton v. Gedhill, 12 Abb. 246. Wehrkamp v. Willet, 1 Keyes, 250. Under the provisions of the act of 1867, chapter 887, in an action between husband and wife, either was a compe- tent witness, in his or her behalf against the other, save in the cases excepted in that act. Southwick «. Southwick, 49 N. T. 510. Miner v. Miner, 4 Lans. 421. The object of the enactment was to alter the common law rule, which forbade the husband or wife being a witness for or against the other. Its object was to make avail- able, in the trial of issues, the evidence of classes of wit- nesses whom the rules of the common law excluded. It designated these classes, as "the husband of any party to the action," and as " the wife of any party to the action." Southwick 11. Southwick, supra. Among the cases excepted in this act, was an actjon for criminal conversation. And it was held, that a wife was not a competent witness for the plaintiff. Hicks t>. Bradner, 2 Abb. Dec. 363. Also, in an action for divorce a defendant under the pro- visions of rule 78, (Rule 73 of 1884) cannot be permitted to testify in her own behalf to contradict the plaintiff, in respect to the matters as to which that rule allows the plaintiff to testify. Hennessy v. Hennessy, 58 How. Pr. 304. Code of Civil Procedure. The general rule under the Code of Civil Procedure as to the competency of witnesses, is that a husband or wife may be a witness, the one for or against the other, in any civil action, save as restricted by sections 829 and 831. §828. Miner ». Miner, 4 Lans. 421. Also see p. 5. Code Civ. Pro., § 831. 73 Under the provisions of section 831, "a husband or wife is not a competent witness, against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage, or disprove the allegation of adultery." §831. The parties are only competent to prove the fact of mar- riage. Roe 11. Roe, 8 J. & Sp. 1. But a party is not competent to prove the fact of a prior marriage. Finn v. Finn, 12 Hun, 339. But the provision, which renders a husband or a wife incompetent as a witness against the other, upon the trial of an action founded on adultery, does not affect their competency as a witness in the other's favor. Either is competent in favor of the other. Bailey v. Bailey, 3 K. Y. State R. 133. "A husband or a wife is not competent, as a witness, to disclose a confidential communication, without the consent of the other, made by one to the other, during marriage." § 831. As the law was formerly, it embraced all communications between husband and wife. But by the act of 1867 it was limited to confidential communications. South wick V. Southwicli, 49 N. Y. 510. Such testimony of the wife cannot be used against the husband after the dissolution of the marriage contract, whether by death or divorce. Southwiclj ». Southwick, 49 N. Y. 510. O'Connor v. Majoribanks, 5 Scott N. R. 394. Barnes v. Camack, 1 Barb. 393. Though a communication received or facts learned after divorce, may be testified to. O'Connor v. Majoribanks, supra. 74 Law of Evidence. The plaintiff' s wife, in an action for criminal conversa- don, is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy, excepting confidential communications. §831. In an action for criminal conversation, the wife is not a competent witness for her husband, to prove the charge, if no divorce has been obtained. Carpenter v. White, 46 Barb. 391. Though she is, after a divorce a vinculo. Katcliffe v. Wales, 1 Hill, 63. Code Civ. Pro., § 832. 75 § 832. Conviction for Crime not to Exclude Witness. Con- viction, HOW Proved. A person who has been convicted of a crime or misde- meanor is, notwithstanding, a competent witness in a civil or criminal action, or special proceeding ; but the convic- tion may be proved for the purpose of affecting the weight of his testimony, 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 provision of the Code is new, and was introduced into the Code by chapter 448, laws of 1876, section 832. It was amended by the laws of 1879, chapter 542, by inserting after the words " competent witness " the words " in a civil or criminal action, or special proceeding." See also Penal Code, § 714. This section is in direct antagonism to, and repeals, the law as it formerly stood, and which was contained in the Kevised Statutes. (2 E. S. 701, § 23.) There it was held, that a "person who was sentenced for the commission of a felony, should not be competent to testify in any cause, matter or proceeding, civil or crimi- nal, unless he was pardoned by the governor, or the Legis- lature, except in the cases specially provided by law." People 13. McQloin, 38 Hun, 150. Affirmed, 91 N. Y. 341. But even then, this provision did not apply to a convic- tion in another state, but only to convictions in this state. Sims v. Sims, 75 N. Y. 466. Cole V. Cole, 50 How. Pr. 59. N. Trust Co. V. Roberts, 10 J. & Sp. 100. Before the amendment of 1879, this section did not extend 76 Law op Evidence. to criminal cases. The Code of Civil Procedure was only intended to apply to civil actions and proceedings, except where otherwise provided. Perry v. People, 86 N. Y. 358. « The design, and effect of the section is to establish a uni- form rule, and permit the conviction for any crime to be proved, and whether it would affect the credibility of the witness is a question for the jury. People V. Burns, 33 Hun, 298. It was the intention of the Legislature, that a person found guilty of a crime or misdemeanor, by the verdict of a jury, should be a competent witness, as well after sen- tence had been pronounced, as before. And a person who is convicted, and sentenced, is a competent witness as well as one convicted only. Sacia v. Decker, 1 Civ. Pro. 47. People V. McGloin, 91 N. Y. 241. The defendant may be asked, on cross-examination, whether his license has been previously- revoked for a vio- lation of the excise law. People V. Schewe, 29 Hun, 122. Or how many times he has been in prison. People V. Hovey, 29 Hun, 382. Or if he has been convicted, in a federal court, of mail- ing lottery circulars (a misdemeanor under the statutes of the United States.) People D. Noelke, 94 N. Y. 137. A witness may be asked whether he has not been three times convicted of being drunk and disorderly. People V. Burns, 33 Hun, 298. Or, whether he has been convicted of an assault and battery. People V. Kelley, 35 Hun, 304. The record of such conviction may be offered in evidence. People o. Kelley, id. Code Civ. Pro., § 832. 77 It is, however, no error to allow sncli a witness to explain tlie circumstances of his trial and conviction. Sacia v. Decker, 1 Civ. Pro. 47. But a witness cannot be asked whether he has been indicted. Ryan «. People, 79 N. Y. 593. And he cannot be asked, whether he has been arrested. People «, Crapo, 76 N. Y. 288. People 1}. Brown, 72 N. Y. 571. The rule is the same where the witness is a party. People V. Brown, id. § 833. ClEEGTMEN, ETC., NOT TO DISCLOSE CONFESSIONS. A clergyman or other minister of any religion, shall not be allowed to disclose a confession made to him in his pro- fessional character, in the course of discipline enjoined by the rules or practice of the religious body to which he be- longs. This section is based on the provision of the Revised Stat- utes (2 R. S. 406, § 72), the first part of which read, "No minister of the Gospel or priest of any denomination, shall be allowed," etc. This section applies to every examination of a person as a witness, unless the provision thereof is expressly waived by the person confessing. §836. Admissions made to a clergyman, may be received in evidence in a criminal case, if not made to him in his pro- fessional character, in the course of discipline enjoined by his church. People V. Gates, 13 "Wend. 311. 78 Law of Evidence. § 834. Physicians not to disclose peoeessional information. A person, duly authorized to practice physic, or surgery, 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. This provision of the Code is a substantial re-enactment of a similar provision contained in the Revised Statutes (2 R S. 406, § 73.) Pierson ». People. 18 Hun, 239. AfE'd 79 N. Y. 424. Staunton v. Parker, 19 Hun, 55. People V. Murphy, 101 N. Y. 126. Grattan v. Nat, L. Iris. Co. 15 Hun, 74. The design of this provision was to place the information of the physician, obtained from his patient in a profes- sional way, substantially on the same footing with the information obtained by an attorney, professionally, of his client's affairs. Pierson v. People, 79 N. Y. 433. People V. Stout, 3 Park. Cr. 670. Edington v. Mut. L. Ins. Co. 5 Hun, 1. The plain purpose of this statute, was to enable a patient to make known his condition to his physician, without the danger of any disclosure by him, which would annoy the feelings, damage the character, or impair the standing of the patient while living, or disgrace his memory when dead. Pierson «. People, 79 N. Y. 424. Westover v. A. L. Ins. Co., 99 N. Y. 60. Edington v. A. L. Ins. Co., 77 N. Y. 564. The rule excluding such evidence did not exist at com- mon law. I Pliillips on Ev. 164. Edington v. A. L. Ins. Co., 77 N. Y. 564. Pierson v. People, 79 N. Y. 424. People V. Stout, 3 Park. Cr. 670. Code Civ. Pro., § 834. 79 This provision of the Code is applicable to criminal ac- tions. People V. Murphy, 101 N. Y. 126. It was also applied in the criminal cases of Pierson v. People, 79 N. Y. 424. People V. Stout, 3 Park. Cr. 670. Hq-w Construed. The statute should receive a liberal interpretation, and not be restricted by any technical rule. Bdlngton v. Mut. L. Ins. Co., 67 N. Y. 185. Id. 5 Hun, 1. People V. Stout, 3 Park. Cr. 670. The information as used in the statute, comprehends the knowledge which the physician acquired, in any way while attending the patient, whether by their own insight, or verbal statements from him, or from members of his household, or from nurses or strangers, given in aid of the physician, in the performance of his duty. Knowledge, however communicated, is information. Edington v. Mut. L. Ins. Co. 5 Hun, 1. Id. 67 N. Y. 185. People V. Stout, 3 Park. Cr. 670. Dilliber v. Home L. Ins. Co. 10 Wk. Dig. 180. Grattan v. Nat. L. Ins. Co. 15 Hun, 74. Grattan v. Met. L. Ins. Co. 80 N. Y. 281. The words, "which was necessary to enable him to act in that capacity," does not limit the restriction, imposed by the section to cases where the physician actually pre- scribed a dose of medicine, or gives some medical advice. Grattan i). Met. L. Ins. Co. 24 Hun, 43. He acts in a professional capacity, when after examining a patient, he decides that neither medicine nor advice are needed, and therefore gives neither. Grattan o. Met. L. Ins. Co., id. What Evidence Excluded. The object of the statute, prohibiting the disclosure of professional information acquired by a physician in attend- 80 Law of Evidence. ing a patient, is to protect the latter, not to shield one charged with murder. And it cannot be invoked solely for the protection of a criminal, when it is not at all for the benefit of the patient. Pierson v. People, 18 Hun, 239. AflE'd 79 N. Y. 424. People «. Murphy, 101 N. Y. 129. In these cases it was held, that although the information disclosed was within the letter of the statute, il was not within its spirit and intent. Pierson e. People, supra. The statute does not apply to the medical attendant, or family physician only, but embraces a physician who cas- ually, or otherwise, attends, or prescribes for the patient. Edington v. Mul. L. Ins. Co. 5 Hun, 1. Reversed, on other grounds, 67 N. Y. 185. It applies to a physician who is called by the attending physician, and who goes in his professional capacity to see the patient. Renihan «. Dennin, 4 N. Y. State R. 261. And it is applicable, where a physician has attended upon a person, under circumstances calculated to induce the opinion, that his visit was of a professional nature, and the visit has been so regarded and acted upon by the per- son so attended. People ®. stout, 3 Park. Cr. 670. It is improper for the physician to state his know- ledge or opinion, though formed from sight, and the gen- eral appearance of the patient before he has made an examination, or before he had any conversation with him. Grattan v. Met. L. Ins. Co. 80 N. Y. 297. Grattan i). Met. L. Ins. Co. 28 Hun, 430. AfE'd 92 N. Y. 287. Edington v. Mut. L. Ins. Co. 67 N. Y. 185. It was held in the following cases that the statute was not applicable to the physician of a deceased person in a testamentary cause concerning the probate of the will of such decedent. Allen V. The Public Adm'r, 1 Bradf. 221. Whelpley v. Loder, 1 Dem. 368. See Pearsall ». Elmer, 5 Redf. 181. Code Civ. Pro., § 834. 81 But it is now settled, that in testamentary cases, where the contest relates to the competency of the testator, the evidence of his physician is not competent. Renihan v. Dennin, 4 N. Y. State R. 261. Id. 103 N. Y. 573. AfE'g 88 Hun. 370. He is, however, competent to testify as to the mental incapacity of the testator, it not appearing that, the infor- mation sought was necessary to enable him to act in the capacity of the physician of the testator. Staunton v. Parker, 19 Hun, 55. Steele ». Ward, 30 Hun, 555. The physician is not competent, in an action on a life insurance policy, to testify to information, thus obtained, with respect to the health of the insured, and while he was in attendance upon such assured as a patient. Dilliber v. Home L. Ins. Co., 69 N. Y. 356. BdingtOD V. Mut. L. Ins. Co., 67 N. Y. 185. Grattan v. Nat. L. Ins. Co., 15 Hun, 74. Grattan v. Met. L. Ins. Co., 80 N. Y. 381. Oahen v. Cont. L. Ins. Co., 69 N. Y. 300. Ferguson v. Mass. Mut. L. Ins. Co., 33 Hun, 315. The physician is incompetent to testify whether his patient had a certain disease while under his care. Sloan V. N. Y. C. R. R. Co., 45 N. Y. 135. Also, upon the trial on an indictment for abortion as to the physical condition of a woman (after the commission of the alleged crime) upon whose person it was alleged to have been committed. People ». Murphy, 101 N. Y. 136. But in an action for seduction, where the physician has been consulted by the defendant, as to the means of pro- ducing an abortion, he is not privileged from disclosing information, when it is doubtful that the communication was made to him in his professional capacity. Hewitt V. Prime, 21 Wend. 79. In an action for divorce, the physician is incompetent to testify to certain circumstances, and conversations, tend- ing to establish the fact of adultery, of a defendant from 6 82 Law of Evidence. whom he derived his information as a patient in his professional conlidence. Hunn V. Hunn, I. T. & C. 499. A physician's account books, containing information which would be privileged as concerns his patients, are not subject to discovery, and inspection in an action between the physician and a third person. Mott «. Consumer's Ice Co., 2 Abb. N. C. 143. This provision does not extend to communications made to a person in attendance at the office of the physician in his absence, and which are not shown to have been made as a basis of a prescription. Kendall v. Grey, 2 Hilt. 300. Who has the Right to Object. The right to exclude the testimony prohibited, survives to the representatives in the premises of a deceased person. Staunton «. Parker, 19 Hun, 5.5. Edington ». Mut. L. Ins. Co., 67 N. Y. 185. Dilliber -o. Home L. Ins. Co., 69 N. Y. 256. Grattani). Nat. L. Ins. Co., 15 Hun, 74. The right, also, extends to an assignee of the deceased. Edington «. Mut. L. Ins. Co., 67 N. Y. 185. Any party to an action can object to evidence which lies within the prohibition. Edington ®. Mut. L. Ins. Co., 5 Hun, 1. Westover ». A. L. Ins. Co., 99 N. Y. 56. It must appear, that it was such information as the physician acquired in some way, while professionally attending the patient. Edington «. A. L Ins. Co., 77 N. Y. 564. And, that it was such as was necessary to enable him to prescribe, or do some act as a surgeon. Edington «. A. L, Ins. Co., id. Code Civ. Pro., § 834. 83 But it is not required, that it should be shown in the first instance, by formal proof, that the information was necessary to enable the physician to prescribe, where the question implies that fact. Grattan v. Met. L. Ins. Co., 80 N. Y. 381. But if the information was such, as was not necessary to enable him to prescribe, or to act as a surgeon, such infor- mation he can be compelled to disclose, although it was acquired while attending the patient. Edington v. A. L. Ins. Co., 77 N. Y. 564. But see Grattan v. Met. L. Ins. Co. , 24 Hun, 43. Before the exclusion is authorized, the facts must, in some way, appear upon which such exclusion can be justified. Edington ». A. L. Ins. Co., id. Who may Waive Protection. The seal of confidence, impressed by the statute, is for the benefit of the patient, and may be removed by him, or with his consent. Edington v. Mut. L. Ins. Co., 5 Hun, 1. Johnson «. Johnson, 14 Wend. 637. Westover i>. A. L. Ins. Co., 99 N. Y. 56. People V. Stout, 3 Park. Cr. 670. Hore V. Troy & L. K. R. Co., 40 Hun, 438. And section 836 of the Code, is in accordance with these decisions, and provides, that this section shall apply to every examination of such a witness, unless the provisions thereof are expressly waived by the patient. §836. For rule in criminal cases, however, see Pierson v. People, 18 Hun, 339. No one but the patient can waive the privilege. Westover v. A. L. Ins. Co., 99 N. Y. 56. Renihan v. Dennin, 38 Hun, 370. Hope ». Troy & L. R. R. Co. , 40 Hun, 438.( Where the seal has once been removed by the patient, 84 Law of Evidence. and the information having been lawfully made public, the right to object further, has not been conferred. McKinney «. G. St. P. P. & T. R. R. Co., 4 N. Y. State R. 349. Where the patient has employed several physicians, and calls one of them, she does not thereby waive her right to exclude the evidence of the others. Hope V. Troy & L. R. R. Co., 40 Hun, 438. This seal remains after the death of the patient. Grattan «. Met. L. Ins. Co., 80 N. Y. 281. Westover v. &.. L. Ins. Co., 99 N. Y. 56. It seems to have been held, however, that the represen- tatives, who succeed to the rights of the deceased, could waive the provisions of the act. Staunton v. Parker, 19 Hun, 59. And that, " the seal which the law lixes upon such com- munications, remains, unless removed by the party himself, or by his legal representatives." Edington «. Mut. L. Ins. Co., 67 N. Y. 196. 1 Greenl. on Bv., § 243. But the Court of Appeals held, later, that "in Eding- ton V. Mutual Life Ins. Co., (67 IST. Y. 185) it was not decided, nor stated that a personal representative could waive the protection of the statute, but that he could make objection to evidence forbidden by the statute." Westover «. A. L. Ins. Co., 99 N. Y. 60. Code Civ. Pro., §835. 85 § 833. Attorneys and Counselors not to Disclose Com- munications. An attorney or counselor at law, shall not be allowed to disclose a communication made by Ms client to him, or his advice given thereon, in the course of his professional employment. This is a new provision, taken substantially from the proposed Code of Civil Procedure of 1850, forbidding an attorney to testify as to a professional communication ; thereby incorporating the common law rule, upon that subject, into the statute. Commissioner's note, Appended, Laws of 1876. HoTv Construed. The rule that was formerly observed, only extended to communications having relation to some suit, or other judicial proceeding, either existing or anticipated. March «. Ludlum, 3 Sandf. Ch. 49. Bank of Utica v. Mersereau, 3 Barb. Ch. 595. Peck V. "Williams, 13 Abb. 68. Whiting V. Barney, 30 N. Y. 330. But it was held, that confidential communications were privileged, although they did not relate to litigation. Williams v. Fitch, 18 N. T. 546. Carnes v. Piatt, 15 Abb. N. S. 337. It is now settled, however, that all communications, made by a client to his counsel, for the purpose of profes- sional advice, or assistance, are privileged, whether such 86 Law of Evidence. advice relates to a suit pending, or contemplated, or to any other matter proper for such advice or aid. Bank of Utica v. Mersereau, 3 Barb. Ch. 533 . Clark «. Richards, 3 E. D. Smith, 89. Britton v. Lorenz, 45 N. Y. 51. Games ». Piatt, 15 Abb. N. S. 337. Yates V. Olmsted, 56 N. Y. 632. Bacon ». Frisbie, 80 N. Y 394. Root V. Wright, 84 N. Y. 72. Pearsall v. Elmer, 5 Redf. 181. It makes no difference as to the mode of communication, whether it is by oral statement, or by delivering a paper or written instrument. Coveney «. Tannahill, 1 Hill, 33. Crosby v. Berger, 11 Paige, 377. Papers, intrusted to an attorney in professional confi- dence, are not necessarily to be deemed confidential com- munications, and, if he swears that he is ignorant of their contents, they are not to be so deemed. Mitchell's Case, 12 Abb. 249. The privilege does not extend to information derived from other persons, or other sources, although the infor- mation is derived, or obtained, while acting as such attorney or counsel. Crosby i). Berger, 11 Paige, 377. Spenceley ». Schulenburgh, 7 East's R. 357. The information of the counsel must come solely from a person coming to him in the character of a client. Bogert ». Bogert, 2 Edw. 399. A communication made to an attorney of the executor of an estate, by one interested therein, is not privileged. Althouse V. Wells, 40 Hun, 336. The statement must be made for the purpose of obtaining professional advice on the subject of such statement. Marsh v. Howe, 36 Barb. 649. Mandeville v. Guernsey, 38 Barb. 225. Whenever the communication made, relates to a matter Code Civ. Pro., § 835. 87 so connected with the employment, as attorney or counsel, as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. Turquand v. Knight, 2 M. & W. 98. Bacon v. Prisbie, 80 N. Y. 394. If it has no reference to such professional employment, it is not excluded, although made while the relation of attorney and client exists. Marsh v. Howe, 36 Barb. 649. The declarations of a party, to his attorney who was consulted as an attorney and counsel, are inadmissible. Smith V. Smith, I. T. & 0. 63. It is not necessary, that a fee should be paid at the time of the communication. Bacon v. Prisbie, 80 N. Y. 394. March ®. Ludlum, 3 Sandf. Ch. 35. The rule as to professional communications, extends to clerks in an attorney' s office. Sibley v. Waffle, 16 N. Y. 180. Brand ». Brand, 39 How. Pr. 193. See Jackson «. French, 3 Wend. 337. If a party make admissions to his attorney after the relation has ceased, they are not privileged. Yordan v. Hess, 13 Johns. 493. Mandeville v. Guernsey, 38 Barb. 335. But communications between a person, and one who has formerly acted as attorney for him, in respect to the matter in which he so acted, and arising therefrom, are privileged. Myers «. Dorman, 34 Hun, 115. The relation can only exist for lawful purposes, and if the client confides to his attorney or counselor a criminal design, or they be present, when a public or private wrong is done by their client, such knowledge is not privileged. Coveney «. Tannahill, 1 Hill, 33. People «. Blakeley, 4 Park. Cr. 176. Bank of Utica v. Mersereau, 3 Barb. Ch. 534. But not to cases of fraud. Peck «. Williams, 13 Abb. 68. 88 Law of Evidence. But where advice sought of an attorney, and papers drawn by Mm, are in themselves wholly irrelevant, and in no manner necessarily connected with the perpetration of any crime, they are privileged. Graham v. People, 63 Barb. 484. What Comuiunicatious Excluded. Where communications are made in the presence of all the parties to a controversy, they are not privileged as between such parties. Coveney ». Tanuahill, 1 Hill, 33. Whiting V. Barney, 30 N. Y. 330. Britton «. Lorenz, 45 N. Y. 51. Communications to counsel, made in the presence of the adverse party, are not privileged. Whiting V. Barney, 30 N. Y. 330. Brand v. Brand, 39 How. Pr. 262. Woodruff V. Hurson, 32 Barb. 557. Prouty V. Eaton, 41 Barb. 409. And this is so, where the litigation is between the repre- sentatives of the two clients, respectively, with whom he has had communications. Sherman J-. Scott, 37 Hun, 381. But where the action is between his clients, from whom he has received communications, and a third person, they are privileged. Root V. Wright, 84 N. Y. 72. A third person can testify to communications made by a party to his counsel. Jackson v. French, 3 Wend. 837. Gary v. White, 59 N. Y. 336. An attorney is a competent witness for the party in whose behalf he is conducting a suit. Little V. McKeon, 1 Sandf. 607. And a witness competent in other respects to testify, is Code Civ. Peo., § 835. 89 not to be excluded, merely because he is the attorney of record of the party in whose behalf he is called. Robinson v. Dauchy, 3 Barb. 20. An attorney is privileged from testifying, whether the facts stated in a complaint, which was not verified, were obtained of his client. Armstrong v. People, 70 N. Y. 38. An attorney cannot be compelled, on a subpoena duces tecum, or otherwise, to produce the papers of his client, entrusted to him. Jackson v. Burtis, 14 Johns. 390. Jackson v. Denison, 4 Wend. 558. Coveney v. Tannahill, 1 Hill, 33. Mallory v. Benjamin, 9 How. Pr. 419. Estate of Hoyt, 7 Civ. Pro. 374. Kellsgg V. Kellogg, 6 Barb. 117. Nor can he be compelled to state their contents. Jackson v. Denison, 4 Wend. 558. Kellogg V. Kellogg, 6 Barb. 117. Though an attorney cannot be compelled to produce a deed or other instrument intrusted to him by his client, nor to disclose its date or contents, yet he may be called to prove its existence, and that it is in his possession. Brandt v. Klien, 17 Johns. 335. Jackson v. McVey, 18 Johns. 330. Where a party subpcsnas his own attorney to produce papers at the trial, which he produces, but omits to offer in evidence, he is to be treated as thereby giving the right to his adversary to introduce them, if discovered to be pertinent to the issue. Hoyt V. Jackson, 3 Dem. 388. A combination, between a party and his attorney, to prevent the court from compelling the production of important papers, required as evidence on a trial, by transferring such papers from one to the other, is not a confidential communication. People V. SheriflE, 39 Barb. 623. An attorney who is the draughtsman of a will, may 90 Law op Evidence. testify as to the instructions received from the testator, in respect to the preparation and the contents of the will. Sanford v. Sanford, 61 Barb. 293. Sheridan v. Hoaghton, 16 Hun, 628. Pearsall v. Elmer, 5 Redf. 181. In re Will of Chapman, 27 Hun, 573. Whelpley v. Loder, 1 Dem. 368. In re Will of Chase, 4 N. Y. State R. 195. But not to conversations with decedent, relating to the preparation for decedent of a codicil, not executed, subse- quently to the execution of the instrument propounded. Pearsall v. Elmer, 5 Redf. 181. Where an attorney draws a deed, and takes the acknowl- edgement thereof, he is not priviliged from testifying as to its execution. Shufelt V. Watrous, 16 Wk. Dig. 198. Bank of Utica v. Mersereau, 3 Barb. Ch. 533. Or from testifying whetUer it was antedated, or in the same form in which it now appears, at the time of its execution, or has been altered ; or whether it was actually delivered, at the time he subscribed his name as a witness . Bank of Utica v. Mersereau, id. But he cannot testify, whether it was read over to the grantee when it was drawn ; and whether the question was up, then, as to whether the grantees would be person- ally liable on the deed. Rogers v. Lyon, 64 Barb. 873. An attorney who took the acknowlegement of the parties to a contract, and witnessed the delivery thereof to each of them, may testify to the fact of such delivery. Rosenburg v. Rosenburg, 40 Hun, 91. And if he witness a contract, executed by or to his client, he is bound to testify in respect to it. Poster V. Wilkinson, 37 Hun, 248, and cases there cited. A communication to an attorney in reference to hia client's personal estate, made upon retaining him to draw Code Civ. Pko., § 835. 91 an affidavit for the purpose of procuring a reduction of tlie assessment of sucli estate, is jirivileged. Williams v. Fitch, 18 N. Y. 546. An attorney is not bound to testify whether he had received instructions from his client as to a foreclosure sale, and the amount he vpas to bid. Stuyvesant v. Peckham, 3 Bdw. 579. But he can testify that in collecting a claim his client had assigned, he acted on behalf of such client, and that the latter forbade him to pay over the proceeds to the assignee. Mulford 7,. MuUer, 3 Abb. Dec. 330. An attorney who becomes a party to a mortgage, thereby loses his privilege, as to communications with the mort- gagor, and is bound to testify in regard to its execution, and consideration. Foster v. Wilkinson, 37 Hun, 243. When an attorney or counsel has an interest in the facts communicated to him, and their disclosure becomes neces- sary to protect his own personal rights, he must of neces- sity be exempted from the obligation of secrecy. Rochester City Bk. v. Suydam, 5 How. Pr. 354. A bond of indemnity, given by counsel to client, is a privileged communication. Genet v. Ketchum, 62 N. Y. 626. Where an attorney, after the commencement of a suit, without any communication from his client, acquires a knowledge of his [handwriting, he may be questioned as to its identity. Jackson ■». Daverne, 19 Johns. 184. For an attorney may be called on to testify to a col- lateral fact, within his knowledge, or to a fact which he might know without being intrusted with it by his client. Jackson v_, Daverne, id. Brandt «. Klien, 17 Johns. 335. 92 Law op Evidence. Who may Object. This privilege extends equally to both counsel and client. Games v. Piatt, 15 A.bb. N. S. 337. Foster v. Wilkinson, 37 Hun, 343. The rule of exclusion includes a case, where the evidence is sought to be given without consent of the person making the communication, as against a third person. Bacon v. Frisbie, 80 N. Y. 397. Where the person who made the communication is not a party, an objection thereto, by the party against whom it is offered, will lie, on the ground of public policy. Bacon v. Frisbie, id. An executor may invoke the protection of the statute on proceedings for probate before admission of the will. Pearsall v. Elmer, 5 Redf. 181. Wlielpley i). Loder, 1 Dem. 375. Who may Waive Protection. The seal of confidence is not the seal of the attorney, but of his client. Bank of Utica -a. Mersereau, 3 Barb. Ch. 596. Hoyt «. Jackson, 3 Dem. 388. This seal which the law once fixes upon such com- munications, remains forever, unless removed by the party himself in whose favor it was there placed. Greenl. on Bv. 278, § 243. Bank of ITtica v. Mersereau, id. Where the privilege belongs to several clients, any one of them, or a majority, cannot waive the protection. Bank of Utica v. Mersereau, id. Code Civ. Pro., S 836. 93 §836. Application of the Last Theee Sections. 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. This is a new provision, and reads as amended by the laws of 1877. The former provision enacted by the laws of 1876, chapter 448, § 836, did not require the privilege to be expressly waived. The seal of confidence impressed by the statute, is for the benefit of the penitent, the patient, and the client, and no one but they can waive the privilege. Bank of Utica 11. Mersereau, 3 Barb. Ch. 596. Hoyt 11. Jackson, 3 Dem. 388. Westover v. A. L. Ins. Co., 99 N. Y. 6. Renihan v. Dennin, 38 Hun, 270. Hope V. Troy & L. R. R. Co., 40 Hun, 438. And remains forever, unless removed by the party in whose favor it was there placed Bank of Utlca v. Mersereau, id . Grattan v. Met. L. Ins. Co., 80 N. T. 281. Westover v. A. L. Ins. Co., 99 N. T. 56. See page 82 and 93. 94 Law of Evidence. § 837. When Witness not Excused fkom Testifying. A competent witness shall not be excused from answer- ing 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, § 71. A witness is not required to give any answer, which will have a tendency to establish what might result in a crim- inal charge against him. Cloyes v. Thayer, 3 Hill, 566 Byass i). Sullivan, 31 How. Pr. 50. In re Lewis, 39 How. Pr. 157. Greensward v. U. D. S. Inst., 59 How. Pr. 399. Walker v. Dunlevey, 4 Civ. Pro. 38. Or which will subject himself to a penalty or forfeiture. Livingston ■». Tompkins, 4 Johns. Ch. 433. Livingston •». Harris, 8 Paige, 533. Henry v. Salina Bk., 1 K Y. 86. Greensward v. U. D. S. Inst. 59 How. Pr. 399. Yamato Trading Co. o. Brown, 37 Hun, 348. As, to testify to the publication of a letter by him, libelous on its face. Corbett ■». DeComeau, 5 Abb. N. C. 171. In re Tappan, 9 How. Pr. 394. Or to the use of counterfeit labels. Byass v. Sullivan, 31 How. Pr. 50. Code Civ. Peo., § 837. 95 Or to the selling of adulterated milk— a misdemeanor. City of Buffalo v. Ray, 1 N. Y. State R. 733. Or to produce books or papers wMch may be used as evidence against Mm, tending to convict him of a crime. ' Byass i). Sullivan, 31 How. Pr. 50. Or to testify to his own acts with individuals, tending to prove bribery. Van Tine v. Nims, 13 How. Pr. 507. Or to give evidence proving the receipt of usury. Henry «. Salina Bk., 1 N. Y 86. Vilas V. Jones, 10 Paige, 76. Curtis V. Knox, 2 Den. 341. Fellows V. Wilson, 31 Barb. 162. Or as to the commission of larceny. Ward V. People, 8 Hill, 395. Or as to a conspiracy to kidnap (Morgan's case). People V. Mather, 4 Wend. 329. An action against a director of a manufacturing corpora- tion to recover a debt of the corporation, because of a failure to file the annual report, required by the Manufac- turing Act (laws 1848, chapter 40, § 12), is an action to recover a penalty. Gadsen o. Woodward, 8 N. Y. State R. 103. The ' ' penalty ' ' which will excuse the witness from testifying, must necessarily involve a forfeiture ; and this must be a forfeiture as contradistinguished from the liabil- ity to pay a debt. It must be characterized by the loss of some right, privilege, estate, honor, office or effects, by an offence, crime, breach of condition, or other act. Gadsen v. Woodward, 38 Hun, 548 See also S. C. 3 N. Y. State R. 103. A witness may not only object to testifying to the main fact which would subject him to a penalty or forfeiture, but may also refuse to disclose any one of a series of facts, 96 Law op Evidence. which together would expose him to such penalty or forfeiture. People V. Mather, 4 Wend. 339. Henry v. Salina Bk., 1 N. Y. 83. In re Tappan, 9 How. Pr. 394. Van Tine v. Nims, 13 How. Pr. 509. Walker v. Dunlevey, 4 Civ. Pro. 38. City of Buffalo v. Ray, 1 N. T, St. R. 733. Yamato Trading Co. v. Brown, 27 Hun, 350. An examination of a party before trial, will not be ordered, for the purpose of requiring him to show what he could not be compelled to testify to on the trial, viz : that he has been guilty of obtaining property by false represen- tations. Yamato Trading Co. v. Brown, 27 Hun, 348. Walker v. Dunlevy, 4 Civ. Pro. 38. Or, where it is sought to compel the defendant to dis- close whether he published a libel. Phoenix ». Depuy, 2 Abb. N. C. 146. Or, where it seems to be designed to establish the ulti- mate fact of an indictable offense. Burbank v. Reed, 11 Wk. Dig. 576. Greensward v. U. D. S. Inst., 59 How. Pr. 399. A witness cannot claim the privilege where the answer is necessary to a full understanding of the facts voluntarily stated by the witness. People V. Carroll. 3 Park. Cr. 83. He is not privileged where the prosecution for the offense is barred by the Statute of Limitations. Close V. Olney, 1 Den. 319. Wolfe V. Goulard, 15 Abb. 336. People «. Kelly, 31 How, Pr. 59. But it should appear affirmatively, that no proceeding had been commenced within the period of limitation. U. S. V. Smith, 4 Day, 131. Bank of Salina u. Henry, 3 Den. 159. A witness is privileged from answering a question, when Code Civ. Pko., § 837. 97 the answer would tend to disgrace him, unless the evidence would bear directly upon the issue. People V. Mather, 4 Wend. 239. Lohman v. People, 1 N. Y. 379. In re Lewis, 89 How. Pr. 155. And it was held in one case, that he was not privileged, where the inquiries were wholly irrelevant to the issue. People v. Blakeley, 4 Park. Cr. 176. But it is now settled, that it lies within the discretion of the court to exclude disparaging questions, not relevant to the issue. Great W^estern Turn. Co. v. Loomis, 32 N. Y. 127. People v. Brown, 73 N. Y. 573. That answers to certain questions may tend to criminate him, is no justification for refusing to be sworn. McGuffin «. Dinsmore, 4 Abb. N. C. 341. The question may be asked the witness by counsel, and the court should apprise him of his privilege. Southard ». Eexford, 6 Cow. 354. People v. Abbott, 19 Wend. 195. Close ». Olney, 3 Den. 319. The witness himself must be the judge, how far the answer may tend to criminate him. But the witness may be compelled to state the grounds upon which he refuses to answer. Van Tine ». Nims, 12 How. Pr. 507. It is for the court to determine, whether the questions are such as the witness is not bound to answer. People V. Mather, 4 Wend. 253. People V. Blakeley, 4 Park. Cr. 184. Davenport G. Co. «. Taussig, 6 Civ. Pro. 155. The right of the witness to refuse to answer a question that would tend to convict him of a crime, is a personal privilege. Southard «. Rexford, 6 Cow. 354. People «. Carrall, 3 Park. Cr. 83. Canada Steamboat Co. ■». Sinclair, 3 Civ. Pro. 384. Walker «. Dunlevey, 4 Civ. Pro. 88. Davenport G. Co. b. Taussig, 6 Civ. Pro. 155. Pickard ». Collins, 33 Barb. 444. In re Lewis, 39 How. Pr. 157. Corbett ®. DeComeau, 5 Abb. N. C. 169. 7 98 Law of Evidence. Counsel for the people, however, cannot object on the ground of privilege. Ward «. People, 6 Hill, 144 People «. Blakeley, 4 Park. Cr. 184, La Beau v. People, 33 How. Pr. 73. The court cannot exclude testimony tending to criminate a witness, if he does not object. Southard v. Rexford, 6 Cow. 357. People V. Bodine, 1 Den 381. La Beau v. People, 33 How. Pr. 73. None but the witness can exercise the privilege. People V. Carroll, 3 Park. Cr. 83. Cloyes ». Thayer, 3 Hill, 566. Ward V. People, 6 Hill, 144. But where the party is a witness, his counsel may object for him. People V. Brown, 73 N. Y. 573. Code Civ. Pro., § 838. 99 § 838. Evidence of Party may be Rebutted. The testimony of a party, taken at the instance of the adverse party, orally, or by deposition, may be rebutted by other evidence. Similar to section 393 of the Code of Procedure, except that " other evidence " read "adverse testimony." A party called by his opponent cannot be impeached by him. Having called the party, he thereby rej^resents him as deserving of credit, and cannot show that his general character for truth is bad, or, for the purpose of impeach- ing him, that he made previous contradictory statements. But he may, by any pertinent evidence, prove a fact to be otherwise than as testified to by the party. Pickard v. Collins, 23 Barb. 444. And he may give evidence in direct support of the issue on his part, however much it may conflict with the testi- mony of his witness. Parsons v. Suydam, 3 E. D. Smith, 376. It is competent for the plaintiff to rebut the testimony of the defendants, though introduced as witnesses by himself. Grouse v. Frothingham, 27 Hun, 123. For this purpose, declarations out of court of either defendant, are competent as against him. Grouse v. Frothingham, id. Although, incidentally, it may tend to impeach the tes- timony of the party called as a witness, it does not impair its value, as evidence upon the question at issue. Grouse v. Frothingham, id. 100 Law of Evidence. What he swore to on a former trial may be given as an admission. Pickard «. Collins, 23 Barb. 444. A party, like any other witness, cannot be impeached by proof of any single act of bad conduct, or any specific wrong transaction, when a witness in his own behalf. Varona v. Socarras, 8 Abb. 302. The testimony of a party must be controverted or im- peached in the same manner as that of any other witness. Varona v. Socarras, Id. Armstrong v. Clark, 2 Code R. 143. § 839. Admission by Membek oe CoEPORATioisr. 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, § 80. The mere fact, that one is a member of the board of directors, and of the discount board, will not in the absence of special authority, authorize him to make admissions respecting a particular discount which will bind the bank. East River Bank v. Hoyt, 41 Barb. 444. Code Civ. Pro., § 840. 101 § 840. Seal, Presumptive Evidence of Consideration. A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. This is as amended by the laws of 1877, by the insertion of the words "hereafter executed.'-' It is a substitute for section 77 of the 2 R. S. 406, which omitted the qualifica- tion in regard to "actions and defenses relating thereto," and made the provisions applicable to executory instru- ments. At common law a mortgage being under seal, imported a consideration, and evidence was not admissible to impeach it. Calkins v. Long, 23 Barb. 97. Torry v. Black, 58 N. Y. 190. But there is now no distinction between an instrument with a seal, and one without a seal, in respect to pleading a failure of consideration in an action on the instrument. Case «. Boughton, 11 Wend. 107, Averill v. Loucks, 6 Barb. 25. Wilson ® Bap. Ed. So., 10 Barb. 313. Morgan v. Smith, 7 Hun, 344. Since the Revised Statutes, a failure of consideration may be pleaded in bar to a recovery on a sealed instrument. Case V. Boughton, 11 Wend. 107. M'Curtie ». Stevens, 13 Wend. 529. Johnson «. Miln, 14 Wend. 199. Mann ». Eckford's Ex'rs, 15 Wend. 519. And under the Revised Statutes the consideration could be impeached, only where such instrument was relied on, either to maintain an action, or establish a defense. Russell V. Rogers, 15 Wend. 351. 102 Law of Evidence. So it was formerly held, that instruments were not in- cluded in the statute, upon which no action, or set-off, was or could be founded. Torry v. Black, 58 N. T. 190. It does not change the rule of law, that patrol evidence is inadmissible to contradict or vary a written instrument. M'Curtie «. Stevens, 13 Wend. 527. The statute only alters a rule of evidence, and does not impair a contract. M'Curtie v. Stevens, 13 Wend. 527. Mann v. Eckford's Ex'rs, 15 Wend. 519. Code Civ. Pro., § 841. 103 § 841. Pkesumption of Death in Certain Cases. A person, upon whose life an estate in real property depends, 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. Taken substantially from the 1 R. S. 749, § 6, substitu- ting "without the United States" for "beyond sea," and making it applicable to special pl-oceedings. Proof of the death of a person is incumbent upon the party who asserts it ; for the presumption is that he still lives. Wilson V. Hodges, 3 East. 312. Duke of Cumberland v. Graves, 9 Barb. 595. O'Gara v. Eisenlohr, 38 N. Y. 299. Letts V. Brooks, Lalor, 36. The mere fact, that a person has absented himself from the place of his birth, or from his original domicile, for more than seven years, does not raise a presumption of his death, where the question arises on the distribution of personal property. Inquiry should be made. McCartee v. Camel, 1 Barb. Ch. 455. A less time may be sufficient to raise the presumption. Gerry v. Post, 13 How. Pr. 120. Oppenheim v. Leo Wolf, 3 Sandf. Ch. 571. » Eagle's case, 3 Abb. 318. Merrit v. Thompson, 1 Hilt. 550. Stouvenal v. Stephens, 2 Daly, 319. Seligman ». Sonneborn, 1 How. Pr. N. S. 473. Where a person has not been heard from in seven years, and, when last heard from, he was beyond sea, without 104 Law op Evidence. having any known residence abroad, the legal presumption is, that he is dead. McCartee i>. Camel, 1 Barb. Oh. 455. If he had a fixed place of residence abroad when last heard from, he ought not to be presumed dead, without some evidence of inquiries made for him at such known place of residence, and without success. McCartee v. Camel, id. The absence of a person without being seen or heard from, for the period of eight years, warrants tlie presump- tion of his death. Sheldon v. Ferris, 45 Barb. 134. Where a man sails for a certain place, and neither he, nor his vessel, is heard of for twelve years, this is sufficient evidence of his death. King 1). Paddock, 18 Johns. 141. Ignorance in a family of the existence of one of the children, who had gone abroad at the age of twenty- two, unmarried, and had not been heard of for upwards of forty years, is sufiicient, with evidence of threats of suicide, to presume the fact of death without issue. McComb v. Wright, 5 Johns. Ch. 363. The reputation among the family and relatives of a person, on whose life a term depends, is admissible to prove his death. Clark V. Owens, 18 N. Y. 434. It is a mixed question of law and fact, whether, under the circumstances, reasonable search and inquiry have been made. Clarke D. Cummings. 5 Barb. 339. Clark «. Owens, 18 N. Y. 435. TITLE I. AETICLE 2. ADMINISTRATION OF AN OATH OR AFFIRMA- TION. § 842. Before whom Oaths and Affidavits may be taken. An oath or afBdavit, 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 author- ized 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. Based upon 2 R. S. 284, § 49, and other statutes which are collated, and amended, by striking out obsolete officials, and by adding mayors, surrogates' clerks, deputy and special deputy clerks, and deputy and special deputy county clerks. Commissioner's note, appended to laws 1876, chap- ter 448. Prior to 1848, a state senator, he being ex-offlcio a judge 106 Law of Evidence. of the court for the correction of errors, which was a court of record, could take an affidavit. Craigg V. Briggs, 4 Paige, 548. Prior to the Code of Civil Procedure, an aiSdavit was held defective, because sworn to before a deputy clerk of a county. Norton ». Colt, 2 Weud. 250. Craft «. Merrill, 14 N. Y. 456. The statute giving notaries power to certify affidavits, is not to be construed as restricted to affidavits in actions pending. Mosher v. Heydrick, 1 Abb. N. S. 258. The officers, before whom oaths and affidavits may by law be taken, are bound to administer the same, when requested; the word "may" in that section being equiv- alent to "shall." People V. Brooks, 1 Den. 457. An oath administered by a judge of this state, out of the jurisdiction of the state, is extrajudicial, and of no validity. Jackson v. Humphrey, 1 Johns. 498. Where nothing appears to show that an affidavit was taken out of the jurisdiction of the officer before whom the affiant was sworn, it will be presumed to have been taken within the limits of his jurisdiction. Parker v. Baker, 8 Paige, 428. Mosher v. Heydrick, 30 How. Pr. 171. It seems, that since the abolition of the office of justice of the peace in the city of Rochester, the oath of assessors, although required by chapter 176 of 1851, to be taken before, and certified by a justice of the peace, may be taken before a commissioner of deeds thereof. O'Donnell v. Mclntyre, 37 Hun, 622. But such oath may now be taken before any officer authorized to administer oaths. Laws of 1885, chapter 201. Code Civ. Peo., § 843. 107 § 843. Id.; In Special Cases. Where an ofBcer, person, board, or committee has been heretofore, or is hereafter authorized by law, to take or hear testimony, or to hear or receive an affidavit, or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer, or person, or a member of the board, or committee, may administer an oath for that purpose. Where an officer, person, board, or com- mittee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. - This section is founded upon the 2 Revised Statutes, 552, section 11. The first sentence renders the section more general. Under the Revised Statutes, the section was held not to contemplate a proceeding in an action depending in court. Berrien v. Westervelt, 13 Wend. 195. 108 Law of Evidence. § 844. Id. ; Without the State. An oath or affidavit required, or which may be received in an action, special proceeding, or other matter, may be taken without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State to take and certify the acknowledg- ment and proof of deeds, to be recorded in the State ; and, when certified by him to have been taken before him, and accompanied with the like certificates as to his ofiicial char- acter and the genuineness of his signature, as are required to entitle a deed, acknowledged before him, to be recorded within the State, may be used, as if taken and certified in this State, by an officer authorized by law to take and certify the same. This is a new section enacted by the laws of 1876, chap- ter 448. The word "State," as used in this section, in each instance, means the state of New York. The affidavit may not be taken before an officer authorized by the laws of a foreign state, or the state of his residence, to take and cer- tify the acknowledgment of deeds. Ross V. Wigg, 34 Hun, 198. FoUett, J., dissenting. The section applies to oaths and affirmations taken in foreign countries, as well as to those taken in the different states of the Union. Ross 11. Wigg, 34 Hun, 198. The certifying officer must state enough in his certificate, from which the legal inference of authority to administer the oath, and that it was in fact administered by the person who had the authority, will irresistibly flow. Brown v. Stillwell, 1 N. Y. State R. 133. Code Civ. Peo., § 844. 109 The statement that he was a notary public, duly com- missioned and sworn, is insufficient, as it does not indicate what official acts, under the laws of another state, he is authorized to perform. Williams v. Waddell, 5 Civ. Pro. 191. Harris v. Durkee, 5 Civ. Pro. 376. In re Wisner, 3 Dem. 13. Hyatt D. Swivel, 53 Super. Ct. 7. Brown v. Stillwell, 1 N. Y. State R. 133. The certificate must state knowledge of officer's hand- writing. Harris «. Durkee, 5 Civ. Pro. 376. Hyatt «. Swivel, 53 Super. Ct. 7. Brown «. Stillwell, 1 N. Y. State R. 133. See Florence v. Butler, 9 Abb. N. 8. 63. This section does not require,-that the certificate of the officer, taking such an oath or affirmation, should state that he knew the affiant, or had satisfactory evidence of his identity. Ross «. Wigg, 34 Hun, 198. Where the affidavit is verified out of the State, and the certificate to the notary's jurat does not conform to this section, the affidavit is a nullity. Phelps «. Phelps, 6 Civ. Pro. 117. AfE'd, 33 Hun, 643. Harris ». Burkee, 5 Civ. Pro. 376. In re Wisner, 3 Dem. 11. Hyatt «. Swivel, 52 Super. Ct. 7. 110 Law op Evidence. § 845. General Mode of Swearing. The usual mode of administering an oath, now practiced, by the person who swears laying his hand upon and kiss- ing the Gospels, must be observed where an oath is admin- istered, except as otherwise specially prescribed in this article. Taken substantially from 2 Revised Statutes, 407, section 82. The statute is complied with, when the oath is adminis- tered either upon the Evangelists, the New Testament, or the Scriptures or Bible. Tuttle ». People, 36 N. Y. 436. See also post, § 851. An oath administered upon a book supposed by the parties to have been the Bible, is a valid oath. People 11. Cook, 8 N. Y. 84. And a person is as amenable to an indictment for perjury, as if he had been sworn on the Gospels. People V. Cook, id. If the party taking the oath, makes no objection to the mode of administering it at the time, he is deemed to have assented to the particular form adopted. People V. Cook, id. To constitute a valid oath, for the falsity of which per- jury will lie, there must be an unequivocal and present act in some form, in the presence of an officer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation of an oath. O'Reilly v. People, 86 N, Y. 155. Code Civ. Pro., § 846. Ill The mere delivery of an affidavit, signed by the person presenting it, to the officer for his certificate, is not snch an act. O'Reilly ». People, 86 N. Y. 155. Nor where the delivery is effected through the agency of a third person. Case V. People, 76 N. Y. 243. Nor can an oath, required by statute from the principal, be made by an agent. People V. Fleming, 3 N. Y. 485. § 846. When Kissing the Gospels Dispensed With. The oath must be administered in the following form, to a person who so desires, the laying of the hand upon and kissing the Gospels being omitted : ' ' You do swear, in the presence of the Ever-living God." While so swearing, he may or may not hold up his hand, at his option. Same in substance as 2 Revised Statutes, 407, section 83, except that "must" is substituted for "shall." 112 Law of Evidence. § 847. When Aefiemation to be Made. A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form : ' ' You do solemnly, sincerely and truly declare and affirm. 2 R. S. 407, § 84. There is no difference in legal effect between an oath and an affirmation. Pendergrast's case, 3 City H. Rec. 11. § 848. Other Modes op Sweaeing. If the court or officer, before which, or whom, a person is offered as a witness, is satisfied that any peculiar mode of swearing in Ueu of, or in addition to, laying the hand upon and kissing the Gospels, is in his opinion more solemn and obligatory, the court or officer may, in its or his dis- cretion, adopt that mode of swearing the witness. 2 R. 8. 407, § 85. Code Civ. Pbo., § 849. 113 § 849. Swearing Persons not Christians. A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act. 2 Revised Statutes 408, section 86, "may" substituted for "shall." As to the mode of administering oaths to Jews and Chinese, see Fryatt v. Lindo, 3 Edw. 239. A Jew or Israelite is usually sworn upon the Hebrew Bible, and with his head covered. People v. Jackson, 3 Park. Or. 590. § 850. Court may Examine Witness. The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowledge ; and may inquire of a person produced as a witness, what peculiar ceremonies in swearing he deems most obligatory. 2 Revised Statutes 408, section 89 amended, by inserting the words "or officer," and omitting the words "religious and other," before "knowledge." Where a witness, called to testify, is of tender years, the party against whom he is called, may require that he shall be examined as to his understanding of the nature and obligation of an oath. People v. McNair, 31 Wend. 808. 8 114 Law of Evidence. § 851. Swearing Falsely in any Poem, Pekjury. A person swearing, affirming, or declaring in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon and kissing the Gospels. Taken from, and amending part of section 90 of 2 Revised Statutes 408. TITLE II COMPELLING THE ATTENDANCE AND TESTI- MONY OF A WITNESS. § 853. Mode of Serving Subpcena issued out of a Court. A subpoena issued out of the court, to compel the attend- ance of a witness, and, where the subpcena so requires, to compel him to bring with him a book or paper, must be served as follows : 1. The original subpoena must be exibited to the witness. 2. A copy of the subpoena, or a ticket containing its sub- stance, must be delivered to him. 3. The fees, allowed by law, for traveling to, and return- ing from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him. 2 Revised Statutes 400, section 42, amended, by not re- quiring the seal of the court, and by inserting a clause as to subpoenas duces tecum. All of sections 852 to 863 are, by section 874 of the Code of Civil Procedure, made applicable to the proceedings for the examination of an adverse party. Riddle v. Cram, 3 Abb. N. C. 117., note. A witness meets the requirements of a subpoena, if he appears in court when required to testify, and gives proper 116 Law of Evidence. impromptu answers to such questions as are then put to him. People V. Montgomery, 13 Abb. N. 8. 207. He cannot be required, by virtue of the subpoena, to examine the case, to use his skill and knowledge to form an opinion, nor to attend, hear and consider the testimony given, so as to be qualified to give a deliberate opinion on a question of science, arising upon such testimony. People V. Montgomery, id. A subpoena ticket was held good, though it did not spec- ify the place where the court was to be held, as such places of meeting were regulated by a public act. People V. Van Wyck, 2 Cai. 333. Where a witness has a paper in court, the judge can compel him to produce it. Boynton v. Boynton, 25 How. Pr. 495. A referee now has the same power as the court, to compel a party to produce his papers. Holtz V. Schmidt, 34 Super. Ct. 30. A corporation cannot be compelled, through the medium of a subpoena duces tecum, to produce its books. La Parge v. La Farge F. Ins. Co., 14 How. Pr. 27. Central Nat. Bank v. White, 37 Super. Ct. 297. Upon the examination of a party before trial, he cannot be compelled, by the issuing of a subpoena duces tecum, to produce his books and papers. Such production can be compelled only under sections 803, 804, etc. De Bary v. Stanley, 48 How. Pr. 349. Woods V. De Figaniere, 16 Abb. 159. Hauseman d Sterling, 61 Barb. 347. Martin ». Spofford, 3 Abb. N. C. 125. Parsons v, Belden, 9 Abb. N. C. 56. The contrary is held in Smith V. McDonald, 1 Abb. N. C. 350. Brett>. Bucknam„32 Barb. 655. Centrai:,Nat. Bank v. Arthur, 2 Sw., 194. McGufflnl». Dlnsmore,[4 Abb. N. C. 241. Code Civ. Pro., § 852. 117 But witnesses, not parties, must produce books, papers, etc., and also on trial. Lane v. Cole, 12 Barb. 680. Central Nat. Bank v. Arthur, 3 Sw., 194. A party cannot be compelled to produce his books and papers, for examination and inspection of his adversary before trial, under this section. Dick V. Phillips, 41 Hun, 604. A witness is entitled to his fees for his attendance on Sunday, as well as the other days of the week. Muscott «. Range, 27 How. Pr. 85. Witnesses who attend the trial by request in two causes, are entitled to the full allowance of fees in each case, though the parties may be the same. Vence v. Speir, 18 How. Pr. 168. Hicks ». Brennan, 10 Abb. 304. A party, as a witness in his own behalf, cannot recover his fees of his adversary. Steere v. Miller, 30 How, Pr. 7. § 853. Penalty eoe Disobedience. A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, with- out reasonable excuse, to obey an order, duly served upon him, made by the court or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in conse- quence of the failure, and fifty dollars in addition thereto. Though sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was 118 Law of Evidence. subpoenaed, the court may, as an additional punishment, strike out his pleading. 2 Revised Statutes 400, section 43, amended, and penalty- extended to an order requiring a person to attend, and be examined. In an action against a witness for the penalty given by statute, the venue is local, and must be laid in the county in which a subpoena is served. Cogswell V. Meech, 12 Wend. 147. Wilkie V. Chadwick, 13 Wend. 49. Code of Civil Procedure, section 983. To sustain the action, the witness must have been per- sonally served by subpoena or order, or received compen- sation for attendance, in pursuance of its terms. It is not enough that the order was served on his attorney. Tebo V. Baker, 77 N. Y. 35. The action will not lie, unless the witness has been paid his fees from day to day, including Sundays, before he has lawfully departed from the court. Muscott V. Runge, 37 How. Pr. 85. Hurd V. Swan, 4 Den. 75. If the witness has expressly waived the payment of fees, it seems, that an action for a penalty can be maintained. Hurd V. Swan, supra. Muscott V. Runge, supra. It must appear, to enable the plaintiff to recover damages, that the witness was material, and that damages resulted from his non-attendance. Courtney v. Baker, 3 Den. 27. Carrington v. Hutson, 28 Hun, 371. And it is a good defense in a proceeding for contempt, that he has not any of the documents that he is called upon to produce, material and necessary as evidence. Morgan v. Morgan, 16 Abb. N. S. 391. When, however, the paper is in court in possession of the attorney of the witness, it is to be considered in the witness's possession and under his control. If he refuse Code Civ. Pro., § 853. 119 to produce the paper, the court is justified in striking out his complaint. Shelp V. Morrison, 13 Hun, 110. And cases cited. To enable a party to recover under this section, he must prove : 1st. That an action was pending in which the defendant might be a witness. 2d. That a subpcena was issued to be served upon him* 3d. That it was served by delivering to the defendant personally, a ticket containing the substance of the writ, showing him at the same time the original, and paying the fees required by law to be paid. 4th. That he was a material witness. 5th. That he was called when the cause was reached on the calendar, and did not appear. 6th. The damages sustained by the non-attendance. Muscott V. Runge, 37 How. Pr. 86. The action may be maintained for the penalty, and the damages sustained, though a jury was not sworn in the cause in which the witness was subpoenaed. Courtney «. Balier, 3 Den. 30. Hurd V. Swan, 4 Den. 75. A witness is not in contempt, where it does not appear that the plaintiff or any of the parties were in attendance, and the inference was that the plaintiff had abandoned the proceeding. Gardiner «. Peterson, 14 How. Pr. 518. The court may grant an attachment, and bring a witness before them to testify after he has disobeyed a subpoena. Andrews v. Andrews, 3 Johns. Cas. 109. People V. Vermilyea, 7 Cow. 108. A witness, duly subpoenaed to attend a circuit, is bound to make extraordinary efforts to obey the writ ; nothing but extreme poverty and utter inability to attend, or sick- ness of himself or family, conclusively proved, will excuse his non-attendance. People «. Davis, 15 Wend. 603. 120 Law op Evidence. §854. SUBPCENA TO BE ISSUED BY JUDGE, ETC. Where a judge, or an arbitrator, referee, or other person, or a board or committee, has been heretofore, or is here- after expressly authorized by law, to hear, try, or determine a matter ; or to do any other act in an official capacity, in relation to which proofs may be taken, or the attendance of a person as a witness may be required, or to require a person to attend, either before him or it, or before another iudge, or officer, or a person designated in a commission issued by a court of another state or country, to give tes- timony, or to have his deposition taken, or to be examined ; a subpoena may be issued by and under the hand of the judge, arbitrator, referee, or other person, or the chairman, or a majority of the board or committee requiring the per- son to attend ; and also, in a proper case, to bring with him a book or paper. The subpoena must be served as prescribed in section eight hundred and fifty-two of this act. This section does not apply to a matter arising, or an act to be done, in an action in a court of record. 2 Revised Statutes 401, section 44, amended and "sub- poena ' ' substituted for ' ' summons. ' ' This section does not apply to an action or to depositions. Under this section, in supplementary proceedings before a referee, subpoenas to witnesses should be issued under the hand of the referee, and not be tested in the name of the county judge and county clerk. People ex. rel. Jacobs v. Ball, 37 Hun, 245. Knowlea v. De Lazare, 8 Civ. Pro. 386. A witness may be compelled to be examined in supple- mentary proceedings in a county other than the one of his residence. Foster v. Wilkinson, 37 Hun, 243. Code Civ. Pro., § 854. 121 But not so where parties and third persons are required, by order, to be examined. Foster «. Wilkinson, 37 Hun, 243. § 2459. § 8£>5. Penalty foe Disobeying Subp(ena ; Warrant for Witness. A person who is duly subpoenaed, as prescribed in the last section, must obey the subpoena. If he fail so to do, with- out a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in con- sequence of the failure, and fifty dollars in addition there- to, to be recovered as prescribed in section eight hundred and fifty-three of this act. If he fails to attend, the person issuing the subpoena, if he is a judge of a court of record, or not of record, or if not, then any judge of such a court, upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff of the county commanding him to apprehend the defaulting witness, and bring him before the officer, person or body, before whom or which his attend- ance was required. 2 Kevised Statutes, 401, sections 45 and 46, consolidated and amended. It was amended by the laws of 1879, by confining the power of issuing the warrant, to "a judge of a court of record or not of record, upon proof by affidavit of the failure to attend." 122 Law of Evidence. § 856. When Witness to be Imprisoned. If the person subpoenaed and attending, or brought, as prescribed in the last section, before an officer or other person, or a body, refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring, by the terms of the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the person issuing the subpcBna, if he is a judge of a court of record, or not of record, may forthwith, or, if he is not, then any judge of such court may, upon proof by affidavit of the facts, by warrant, commit the offender to jail, there to remain until he submits to do the act which he was so required to do, or is discharged according to law. 2 Revised Statutes, 401, section 47, amended, and by the laws of 1879, the words ' ' the person issuing the subpoena, if he is a judge, etc., may," were substituted for "the officer or other person or the body issuing the subpoena must." This section applies to the examination of a party, or a person expected to be an adverse party, taken as prescribed in chapter nine, title three, article one. §876. See § 853. It is the duty of the judge, where the witness refuses to answer a legal and pertinent question, to issue his warrant for the commitment of the witness, and not make an order merely adjudging him to be in contempt. People V. Dyckman, 24 How. Pr. 322. Code Civ. Peo., § 857. 123 § 857. Contents oe Warrant. A warrant of commitment, issued as prescribed in the last section, must specify particularly the cause of the com- mitment, and, if the witness is committed for refusing to answer a question, the question must be inserted in the warrant. 2 R. 8., 401, §48. This section applies to the examination of a prospective adverse party. §876. § 858. To Whom Directed ; How Executed. A warrant to apprehend or commit a person, issued as prescribed in this title, must be directed to the sheriff of the county where the person is, and must be executed by him in the same manner as a similar mandate issued by a court of record in an action. 3 R. S., 402, § 49. "Mandate" substituted for "process" and, "in an action" added. How applicable, see §876. 124 Law op Evidence. § 859. Qualification op Pbeceding Sections. The foregoing sections of this title do not apply to a subpoena issued, by a Justice of the peace, or to a witness stibpcBnaed to attend a court held by a justice of the peace, or to a case where special provision is otherwise made by law for compelling the attendance of a witness. 2 R. S. 402, S 50. § 860. Witness Exempt peom Akeest. A person duly and in good faith subpoenaed, or ordered to attend, for the purpose of being examined, in a case where his attendance may lawfully be enforced by attach- ment, or by commitment, is privileged from arrest in a civil action, or special proceeding, while going to, remain- ing at, and returning from the place where he is required to attend. 2 R. S. 402, § 51. The privilege from arrest extended to special proceedings. A person is not entitled to a witness's privilege from arrest, unless he attend as a witness, though he be sworn and examined after the arrest. Cole V. McClelland, 4 Hill, 59. Penn v. Randall, 3 Law Bull. 61. A resident witness is privileged from arrest, but not from the service of a summons. Pollard V. V. P. R. R. Co., 7 Abb. N. S. 70. Jenkins «. Smith, 57 How. Pr. 171. Prisbie e. Young, 11 Hun, 474. See Slieldon v. "Wakeley, 3 Law Bull. 94. But see Quaere in Person v. Grier, 66 N. T, 124. Code Civ. Pro., § 860. 125 A non-resident party to an action here, who attends tlie court as a witness, is privileged while here, and returning home, not only from arrest, but from any action brought against him. Merrill ®. George, 33 How. Pr. 331. Jenkins v. Smith, 57 How. Pr. 171. He is exempt from the service of a civil process for the commencement of an action. Merrill ■». George, 33 How. Pr. 331. Seaver v. Robinson, 3 Duer, 633. Person v. Grier, 66 N. Y. 134. Lamkin v. Starkey, 7 Hun, 479. Prisbie v. Young, il Hun, 474. Mattliews «. Tufts, 87 N. Y. 570. This immunity, however, does not depend upon statutory provisions, but is deemed necessary for the due adminis- tration of justice. Lamkin v. Starkey, 7 Hun, 479. Person v. Grier, 66 N. Y. 134. Matthews ». Tufts, 87 N. Y. 570. A resident witness whose attendance is voluntary and not compelled by process, is not privileged from arrest while coming and going. Hardenbrook's case, 8 Abb. 416. But he is, if he is a non-resident. Seaver ®. Robinson, 3 Duer, 633. Dixon v. Ely, 4 Edw. Ch. 557. The exemption from arrest is a personal privilege, which he can waive. Cole V. McClelland, 4 Hill, 69. Stewart v. Howard, 15 Barb. 26. Hardenbrook's case, 8 Abb. 416. Petrie v. Fitzgerald, 1 Daly, 401. Farmer v. Robbins, 47 How. Pr. 415. A person not liable to arrest in a civil suit, waives his privilege by putting in bail. Stewart v. Howard, 15 Barb. 26. Petrie v. Fitzgerald, 1 Daly, 401. If he has not been free from laches in his efforts to get rid of the arrest, he is to be considered as having waived his privilege. Farmer v. Robbina, 47 How, Pr. 415. 126 Law of Evidence. The privilege extends only to. a reasonable time after the hearing. Clark V. Grant, 2 Wend. 357. Shults V. Andrews, 54 How. Pr. 380. See Van Lieuw v. Johnson, unreported, cited, 66 N. Y. 136. § 861. When to be Discharged feom Aerest. The court from which a subpoena, served in good faitli, was issued, or by which an order was made, requiring a person to attend for the purpose of being examined; or a judge thereof, upon proof by affidavit of the facts, must make an order directing the discharge of a witness or other person from an arrest made in violation of the last section. 2 Revised Statutes, 402, section 52 (3 R. S. 5th ed., 685), amended by omitting the provision as to the power of "a judge to discharge an arrested witness when the court is not in session," and "or officer" after court. The court before whom the witness is under examination has power to discharge him out of custody. Norris v. Beach, 3 Johns. 394. Bours'a. Tuckerman, 7 Johns. 538. § 863. By Whom Witness May be Discharged. A justice of the supreme court in any part of the state, or a county judge, or A judge of a superior city court with- in his district, has the like authority as a judge of the court, to make an order for a discharge, in a case specified in the last section. Upon satisfactory proof, by affidavit of the facts, he must also make an order directing the dis- charge of a person arrested in violation of section eight Code Civ. Pro., § 862. 127 hundred and sixty of this act, where a subpoena, served in good faith upon the person arrested, was issued as pre- scribed in section eight hundred and fifty -four of this act. The first sentence is founded upon 2 R. S., 402, section 53. The second sentence is new. § 863. Abrest, When Void; Penalty. An arrest made contrary to the foregoing provisions of this title, is absolutely void, and is a contempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. An action may be maintained by the person arrested, against the officer or other person making such an arrest, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order pro- cured, to recover the damages sustained by him in conse- quence of the arrest. 2 R. S., 402, § 54. § 864. Shekiee not to be Liable unless Affidavit is Made. But a sheriff or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit to the effect that he was legally subpoenaed or ordered to attend and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit he must specify the court or officer, the place of attendance, and the cause in which he was so sub- 128 Law of Evidence. pcenaed or ordered. The affidavit may be taken before the officer arresting Mm, and exonerates the officer from liabil- ity for not making the arrest. 2 Revised Statutes, 402, section 55, amended by the lav^s of 1876, chapter 448, which required the witness to annex to the affidavit the subpcena ticket, etc., or to swear that it was lost. Such amendment, however, was omitted by the amendment of 1887. § 865. Application of Foeegoing Provisions to Judgments. The foregoing provisions of this title, relating to a person required by an order of a court to attend, apply where such an attendance is required by the terms of a judgment. This is a new provision. § 866. Records not to be Removed by Virtue of Subpcena. The record of a conveyance of real property, or any other record, or document, whereof a transcript duly certi- fied, may, by law, be read in evidence, shall not be removed, by virtue of a subpoena duces tecum, from the' office in which it is kept, except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk, or by the officer having it in custody, to a term or sitting of a court, or a trial before a referee held in the city or town where his office is situated. Where it is required at any other place, it may be removed by order of the supreme court, a superior city court, or a county court, made in court, and entered in the minutes ; specifying, that the production of the original, instead of a transcript, is necessary. Code Civ. Pro., § 866. ]29 Laws 1838, chapter 129, and 1 Eevised Statutes, 5th ed. 868,. amended, by confining the power of removing official records, to the supreme court, the superior city courts, and the county courts, and making the provisions applicable to a trial before a referee. § 867. Prodctction, etc., oe Book oe Account. A person shall not be compelled to produce, upon a trial or hearing, a book of account otherwise than by an order requiring him to produce it, or a subpoena duces tecum. Such a subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a subpoena or order, the witness may obtain, upon such a'notice as the judge, referee, or other officer pre- scribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena, or the order for production, upon such terms as justice requires, touching the inspection of the book, or any portion thereof, or taking a copy thereof, or extracts therefrom, or other- wise. An order may be made, as prescribed in this section, by a judge of the court, or in a' special proceeding pending out of court before an officer, by the officer, or, in either fcase, by a referee duly appointed in the cause, and author- ized to hear testimony. A justice of the peace, or other judge of a court, not of record, may make such an order in an action brought in his court, at any time after the com- mencement thereof. New L. 1876, chap. 448. Amended by the laws of 1879, by inserting "such a sub- poena must be." A witness or party, in proceedings supplementary to execution, may be required to produce books by a subpoena duces tecum, or by an order. Prudden v. Tallman, 6 Civ. Pro. 360. See Holmes v. Steitz, 6 Civ. Pro. 363. 130 Law of Evidenob. Where the subpoena is set aside on the application of the plaintiff, based upon an affidavit, stating that the books called for were from forty-five to fifty in number, held, that the court erred in granting the application. That if the subpoena was too broad, the court should have required the plaintiff to allow the defendant to inspect the books, or have compelled them to produce copies of such portions thereof as were material to the issues. Clyde V. Rogers, 34 Hun, 146. It is in the discretion of the court which makes the order, whether to set aside a subpoena duces tecum; also, whether permission shall be granted defendant to inspect and copy plaintiff' ' s books. ' Clyde V. Rogers, 87 N. Y. 835. Id.,94N. Y. 543. In re Accounting of Kelly, ll Wk. Dig. 308. §868. Books, Etc., op Corporation, How Produced. The production upon a trial of a book or paper belong- ing to, or under the control of a corporation, may be com- pelled, in like manner as if it was in the hands or under the control of a natural person. For that purpose a sub- poena duces tecum, or an order, made as prescribed in the last section, as the case requires, must be directed to the ■ president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is. New. This is a beneficial provision, and changes the old rule, that as against a corporation, a subpoena duces tecum would be unavailing. Centr. C. R, R. Co. v. T. T. St. R. R. Co., 53 How. Pr. 45. This section applies to foreign corporations keeping books within this state . U. S. V. Tilden, 18 Alb. L. I. 416. Code Civ. Pko., § 868. 131 A corporation called as a witness in proceedings supple- mentary_ to execution, may be compelled to produce its books, either by order or by subpoena duces tecum. Holmes v. Steitz, 6 Civ Pro. 362. See Prudden v. Tallman, 6 Civ. Pro. 360. § 869. When Personal Attendance not Required by Sub- p(ENA Duces Tecum. In a case specified in the last section, or where a sub- poena duces tecum, or an order, made as prescribed in section eight hundred and sixty-six, or section eight hundred and sixty-seven of this act, requires a public ofl&cer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify respecting the purposes for which it is used. If the personal attend- ance of a particular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him. New. This, as well as the last section, applies to a hearing in a special proceeding. Holmes v. Steitz, 6 Civ. Pro. 363. TITLE III AETICLE I. DEPOSITIONS TAKEN AND TO BE USED WITHIN THE STATE. § 870. Depositions op Paett, 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, eight- eenth, 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 co-defendant, at any time before the trial, as prescribed in this article. Taken from the Code of Procedure, §§ 390, 391, 392 and 397. These sections (870-886) consolidate the provisions of the Revised Statutes, and amendatory acts, and of the Code of Procedure relating to the examination of a party before trial, taking depositions de iene esse, perpetuating testimony, taking depositions by consent, and taking depositions for the purpose of a motion, and provide a uniform method of procedure. The distinction whereby the deposition, where testimony is perpetuated, cannot be Code Civ. Pro., § 870. 133 read on a trial, unless the witness is dead or sick, though removed from the state, is swept away. CommiBsioner's note, apended laws of 1876. This section was amended by the laws of 1877, chapter 416, by striking out the words "of the state," and inserting in the place thereof the words " other than a court specilied in subdivision sixteenth, etc., section two of this act." It was again amended, chapter 299, laws 1878, by inserting the words "or of a person who expects to be a party to an action about to be brought in such a court," and the words ' ' at his own instance, or.' ' General Provisions. The right to such an examination is purely a statutory one, and the mode pointed out by the statute must be followed. Heishon v. Knickerbocker L. Ins. Co. , 77 N. Y. 378. If any section or part be intricate, obscure or doubtful, its true meaning should be discovered, by comparing it with other sections or parts, in the light of the general legislative intent disclosed by the whole system with respect thereto. Levy «. Loeb, 5 Abb. N. C. 158. See A. B. & C. Co. v. N. Y. Chimney Co., 53 N. Y. 125. The examination of an adverse party before trial, under the Code, is a substitute for the former remedy by a bill of discovery. Glenney v. Stedwell, 1 Abb. N. C. 837. Schepmoes «. Bousson, 1 Abb. N. C. 481. Elmore ». Hyde, 3 Abb. N. C. 139. Phoenix v. Dupuy, 3 Abb. N. C. 146. Kinney ii. Roberts & Co., 36 Hun, 166. A party cannot be examined at the instance of the adverse party, before trial, in an action in the U. S. circuit court. Fogg V. Fisk, 4 Civ. Pro. 344. In re Fisk, 7 Civ. Pro. 169. Or which has been removed thereto from a court of the state of New York. In re Fisk, 7 Civ. Pro. 169. 134 Law of Evidence. Nor can an order for such an examination, made in the state court, before the removal, be enforced in the United States court, notwithstanding that the examination there- under has been begun before such removal. In re Pisk, 7 Civ. Pro. 169. Rev'gin effect, Fogg «. Fisk, 4. Civ. Pro. 344. Sections 870 to 886, inclusive, apply to surrogates' courts, except where a contrary intent is expressed in, or plainly inferred from the context of the provisions of chapter 18. § 3538 Code Civ. Pro. Estate of McCoskry, 10 Civ. Pro. 179. Who are Parties. The word "party" to an action, in this section includes only parties to the record; that a person is a party in interest, is not sufficient to authorize his examination under this section. Seeley v. Clark, 78 N. Y. 230. "Woods V. De Figaniere, 16 Abb. 1. People V. Mut. Gas L. Co., 14 Hun, 157. Afl'd, 74 N. Y. 434. One who has by failure to answer made default in an action, cannot be examined before trial as a party, in behalf of plaintiff, and against his co-defendant. Sliarp ». Hutchinson, 48 Super. Ct. 101. This section contemplates a party contesting, or intend- ing to make a contest. A party who stands upon the record as having given up the contest, is no longer a party litigant. Sharp V, Hutchinson, 48 Super. Ct. 101. Contra, N. Y., L. B. & W. R. R. Co. ». Carhart, 36 Hun, 388. Who may be Examined. The directors of a corporation are not parties to the action, and prior to the amendment of 1880, this section Code Civ. Peo., § 870. 135 did not authorize an order requiring them to appear for examination, and to produce books and papers. Boorman v. A. &. P. K R. Co., 17 Hun, 555. AfE'd, 78 N. Y. 599. But see § 872, subd. 7. The term "party" does not include agents, directors or officers of a party, and in an action by or against a corpora- tion, they could not be examined thereunder prior to 1880. People «. Mut. Gas L. Co., 14 Hun, 157. AfE'd, 74 N. Y. 434. But the directors and officers of a corporation can now be examined as a party, laws 1880, and section 872, subdivis- ion 7 of this title. For the affidavit must state the names of the officers or directors thereof, whose testimony is material, and the order to be made shall direct the exami- nation of such person. Williams v. W. U. Tel. Co., 1 Civ. Pro. 294. Reicbmann v. Manhattan Co., 26 Hun, 433. See Wayne Co. Saving Bk. ®. Brackett, 81 Hun, 434. This change does not affect the rule as to the exclusion of agents, servants, and employees of the corporation from examination. Reichmann v. Manhattan Co., 26 Hun, 433. People V. Mut. Gas L. Co., 74 N. Y. 434. Neither the officers of an unincorporated association, nor its individual members, other than such one, or more of them as are, or may be made parties to the record, can be examined as parties before trial under this section. McGuffln v. Dinsmore, 4 Abb N. C. 341. Woods ». De Piganiere, 16 Abb. 1. In an action against the president or treasurer of such an association, as authorized by section 1919 of the Code, the person so named as president or treasurer, is not a party to the action within the meaning of this section. Duncan «. Jones, 33 Hun, 13. See Wayne Co. Saving Bk. v. Brackett, 31 Hun, 434. A person, against whom an inquisition of lunacy has been found, is exempt from examination. Corbitt V. Rice, 1 Civ. Pro. 79, note. 136 Law op Evidence. Where the party appears to be partially insane, he can- not be examined, as the trial is the proper place and time to determine that question. Mason v. Libbey, 2 Abb. N. C. 142. A non-resident witness cannot be examined as a witness before trial, in an action in this state, without showing that he is about to depart from the state, or that he is sick or infirm. Barker v Wilder, 10 Wk. Dig. 252. To obtain such an examination, the afiidavit upon which the order is based, must comply with the requirements of sections 872, 886. Dunham v. Mer. Mut. Ins. Co., 6 Abb. N. C. 70. Examination before Issue Joined. Under the Code of Procedure, the plaintiff had the privilege of examining the defendant for the purpose of obtaining facts necessary to enable him to frame his complaint. Glenny v. Stedwell, 64 N. T. 120. O'Reilly ®. W. U. Tel. Co., 12 Hun, 124. Havemeyer c. IngersoU, 12 Abb. N. S, 306. The rule is the same under the Code of Civil Procedure. Brisbane v. Brisbane, 20 Hun, 48. Hutchinson v. Lawrence, 3 Civ. Pro. 103. Simmons ii. Vanderbilt, 59 How. Pr. 411. Raymond v. Brooks, 59 How. Pr. 383. Burti). Oneida Com., 21 Wk. Dig. 342. As to prove that the defendants were copartners, which proof was necessary to the plaintiff to make out his case. Goldberg u. Roberts, 5 Civ. Pro. 97. A party should not be compelled to disclose facts to enable the plaintiff to obtain knowledge of the exact language used by defendant in disseminating a charge, that plaintiff had participated in a scheme of blackmail against the defendant. De Leon v. De Lima, 66 How. Pr. 288. The plaintiff can compel his adversary to testify to facts which tend to establish the applicant's cause of action, or Code Civ. Peo., § 870. 137 defense, but he cannot compel him to disclose the evidence by which he intends to establish his defense. Fourth Nat. Bk. v. Boynton, 29 Hud, 441. Adams «. Cavanaugh, 37 Hun, 232. The possibility that an effort will be made to extend the examination, beyond what may appear to be necessary to obtain a knowledge of the facts required to be known to present the plaintiff's case, will not justify a denial of the remedy. The officer, before whom it is taken, is vested with authority to properly limit it. Hutchinson ». Lawerance, 3 Civ. Pro. 98. The examination should be limited to an inquiry only into the facts necessary to be included in the complaint Raymond v. Brooks, 59 How. Pr. 383. To justify an order to examine a defendant, to enable a plaintiff to frame his pleading, the affidavit must show what induced the plaintiff to proceed. The framing of a general averment is not sufficient. Simons ». Vanderbilt, 59 How. Pr. 411. For the examination will not be allowed to frame an amended complaint, by making it more delinite and certain, or to frame an amended answer, where this examination does not appear to be necessary or material. Williams v. W. U. Tel. Co., 1 Civ. Pro. 294. Hale «. Rogers, 22 Hun, 19. Or to enable the defendant to amend Ms answer. Robertson v. Russell, 20 Hun, 343. In one case the examination was granted for the purpose of amending the complaint ; yet there was no reference in the arguments to the purpose of, or to the necessity of, such amendment. O'Connor o. U. 8. Life Ins. Co., 1 Civ. Pro. 85, note I gAn application may be granted for the purpose of ascer- taining the names of "persons whom the applicant desires to join by amendment, as parties. Glenney v. Stedwell, 1 Abb. N. C. 838. One partner, seeking to compel a settlement of partner- 138 Law of Evidence. ship accounts, may examine a defendant copartner, where the affidavit complies with the formal requirements of section 872. Davis «. Stanford, 37 Hun, 531. To Establish. Agency. Whether one can examine the adverse party to establish the creation of an agency, does not seem to be settled. But the weight of authority is in favor of such examination. Dewitt «. McDonald, 1 Civ. Pro. 86, note. Cornells v. Boacii, 1 Civ. Pro 87, note. Afl'd, 39 Hun. 333. Contra, Pitzpatrick v. "Van Schaick, 1 Civ. Pro. 87, note. Where Facts Tend to Show Crime or Misdemeanor. An examination of a party before trial will not be ordered, for the purpose of requiring him to show, or where all the evidence sought for, must tend to show him guilty of a crime, or misdemeanor, or to render him infamous. Pha3nix «. Dupuy, 3 Abb. N. C. 146, 158. Brandon Man'f'g Co. », Bridgman, 14 Hun, 133. Burbank ». Keed, 11 W'k Dig. 576. Rus3 11. Campbell, 1 Civ. Pro. 41. Walker ». Dunlevev, 3 McC. C. P. 6. Kinney ». Roberts & Co., 36 Hun, 166. Yamato T. Co. v. Brown, 37 Hun, 248. Beebe ». Richardson, 3 McC. C. P. 319. Funk «. Tribune Asso., 4 Civ. Pro. 408. Davies ». Pish, 85 Hun, 431. Greensward o. U. D. 8. Inst., 59 How. Pr. 399. And, when the object of the examination is to show by the testimony of the party, that he procured property by means of false and fraudulent representations, the order will be vacated. Tamato T. Co. ®. Brown, 27 Hun, 348. Andrews ». Keene, 4 Civ. Pro. 330. There are two cases holding that the objections of privi- lege were prematurely made on motion, and that the party could only avail himself of it, when questioned. Corbett ®. DeComeau, 54 H6w. Pr. 506. Greisman v. Dreyfus, 4 Civ. Pro. 32. Code Civ. Pko., § 870. 139 The former case rested upon the view no longer held in the first department, that the examination was a matter of right, and not of discretion. The latter case followed the former. Neither case can be deemed authority. Walker v. Dunlevey, 4 Civ. Pro. 88. Kinney v. Roberts & Co., 36 Hun, 170. But the fact that upon such examination, some questions may be put which the witness might refuse to answer, be- cause they were not bound to criminate themselves, should not prevent the court from making the order. Davenport G. Co. v, Taussig, 33 Hun, 32. Davies v. Fish, 35 Hun, 431. Canada St'b. Co. «. Sinclair, 3 Civ. Pro. 285. M. Organette Co. v. Hayes, 19 Wk Dig. 535. Sprague «. Butlerworth, 22 Hun, 502. See Kinney v. Roberts & Co, 26 Hun, 169. And the order should not be set aside, unless the evidence sought to be obtained relates exclusively to facts which, if proven, would show that the witness was guilty of a crime. Canada St'b. Co. ii. Sinclair, 3 Civ. Pro. 284. M. Organette Co. v. Hayes, 19 Wk Dig 535. Inspection of Person. A person cannot be compelled to submit his or her person to the examination of physicians, selected by his or her adversary. Roberts ii. O. & L. 0. R. R. Co., 29 Hun, 154. Williams v. Phillips, 1 Civ. Pro. 88, note. Neuman v. Third Ave. R. R., 50 Super. Ct, 414. The rule as now settled, does not go so far as to allow such an examination as is claimed by 1 Civ. Pro. K. 88 (note), and as was allowed in the following cases. Walsh v. Sayre, 53 How. Pr. 384. Schroeder b. C. R. I. & P. R. R., 19 Alb. L. J. 234. As to these cases the opinion in Roberts v. Ogdensburg & Lake Champlain Railroad Company, by Learned, P. J., is to this effect: "The order is so unusual that we may well inquire upon what authority of precedent or principle it rests. For precedent the defendant cites what is called the leading case of Walsh v. Sayre (52 How. Pr. 334). That case was decided by the special term of the Superior 140 Law op Evidence. Court of New York, in 1868, and was reported in 1877. The action was for malpractice, and the motion by the defendant was that the plaintifE submit to a personal ex- amination by surgeons. The opinion states that there is no recorded case of an application for any such discovery having been granted. And the decision is based upon the analogy to discovery in chancery. We see no analogy whatever between the production of books and papers on the exam- ination of a party by a bill of discovery, and the compelling of a party to expose his person to the inspection of physicians. ' ' In Shaw v. Van Rensselaer (60 How. Pr. 143) the applica- tion for an inspection of the plaintiff's person was denied. The special term of the Common Pleas, however, expressed an opinion, obiter, that it had the power to grant it, and referred, among other cases, to Harrold v. N. Y. E. E,. R. (21 Hun, 268). But that case speaks only of the examina- tion of a party as a witness before trial, not of an examination or inspection of his person. " In Schroeder v. C. R. I. & P. R. R. (47 Iowa [19 Alb. L. J.] 234), the doctrine, contended for by the defendants here, was sustained. The opinion cites no precedent or authority. Passing from the subject of precedent to that of principle, we think this order should not be sustained." Roberts v. O. & L. C. E. R. Co., 29 Hun, 154. Inspection of Machine. The court has no power, in an action for personal injuries, to order an inspection of a machine by which the plaintiff was injured. Cooke V. Lalance Grosjean M. Co., 3 Civ. Pro. 333. Discovery of Eooks and Papers. The court cannot compel a discovery of books and papers on the examination of a party before trial, except under section 803, etc. Black V. Curry, 1 Civ. Pro. 193. Martin ». Spofford, 3 A.bb. N. C. 135. De Bary v. Stanley, 5 Daly, 413. Hauseman v. Sterling, 61 Barb. 347. A party cannot be compelled to produce his books and papers by subpoena duces tecum. The only mode of Code Civ. Pro., § 870. 141 obtaining such discovery is under sections 803, 804, 805, etc. Martin v. Spofford, 3 Abb. N. C. 135. Parsons v. Belden, 9 Abb. N. C. 56. They are two entirely different and distinct proceedings. De Bary v. Stanley, 48 How. Pr. 349. McGuffln «. Dinsmore, 4 Abb. N. C. 340. But witnesses, not parties, must produce books and papers. Lane s. Cole, 13 Barb. 680. Central Nat. Bk. v. Arthur, 3 Sw. 94. A party cannot be compelled, before trial, to produce letters for plaintiff's examination, to enable hfm to see if they are relevant on a motion to be made. Newhall v. Appleton, 2 Law Bull. 35. Where a party, under examination, voluntarily refers to the contents of his books, he can be compelled to produce them, or state their contents. Morrison ». McDonald, 9 Abb. N. C. 57, note. And it has been held, that the party should produce and leave with the referee, books of account of a former part- nership. Pirz V. PoUett, 1 Civ. Pro. 185, note. Examination Pending Trial or other Proceedings. While a trial is pending, and proceeding before a referee, the court will not allow the examination of a party under this section. Richardson v. McCreery, 1 Abb. N. C. 365. The fact, that on a previous trial of an action, a party was examined in his own behalf, and cross-examined by the opposite party, is not alone sufficient to deprive the court of its power to make an order for the examination of such party before another trial. Sumner z/. Hosford, 13 Wk. Dig. 440. The court will stay an examination of a party before trial, 142 Law op Evidence. pending other proceedings which may result in dispensing with tlie necessity of the examination. |^ Wetmoie ■», Hegeman, 3 Abb. N. C. 133. A Second Examination. A second examination cannot be had before trial, unless special facts be shown justifying the re-examination. Dambmann v. Butterfleld, 15 Hun, 495. Where an order for the examination of a party defend- ant before trial, is inoperative for any cause, and an appeal is pending, from an order denying a motion to set it aside, a second order may be obtained, as a new proceeding. Gawthorp v. Leary, 9 Wk. Dig. 176. Delay. The application will be denied, where it has not been applied for, until the cause has been placed upon the day calendar for trial, without a satisfactory explanation of the delay. Turner v. Kinghorn, 5 Abb. N. C. 157, note. Perpetuation of Testimony. Before the amendment of 1878, a party to an action, under the Code of Civil Procedure, could not be examined before trial, for the purpose of perpetuating his testimony. Montague v. "Worslell, 4 Abb. N. C. 348. But since the amendment of 1878, the deposition of a party may be taken " at his own instance." §870. By such amendment, the deposition "of a person who expects to be a party to an action about to be brought in such a court, * * * may be taken at his own instance, or at the instance of an adverse party," etc. §870. Code Civ. Peo., § 870. 143 Expected Party to an Action. Under this provision it was held, that the examination of an expected party, could be had only when he himself applied for it. And that it did not provide for the exami- nation of a party not yet sued, at the instance of another, who contemplated a suit against the former. In re Paulmier, 56 How Pr. 1. It has, however, been settled otherwise, and that sections 870, 876 authorize the granting of an order, before an action has actually been commenced in a court of 'record, for the examination of a person, against whom such an action is " about to be brought," upon the application of the person who is about to bring the action. M. Nat. Bk. V. Sheehan, 101 N. Y. 176. And that a person who contemplates bringing an action, expects to be a party thereto, and it seems to be clear that, under the section, he can procure his own testimony to be perpetuated. M. Nat. Bk. V. Sheehan, 101 N. Y. 176. 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. This section is based upon portions of §§ 1, 2, 33 and 34 of the 2 K. S. 391. It was amended by the laws of 1877, chap. 416, by striking out the words " a court of record of the State," and inserting in the place thereof the words "a court of record other than a court specified in sub. sixteenth, 144 Law op Evidence. etc., section two of this act," and by inserting the words " such a court " in the place of "a court of the State." Tlie perpetuation of the testimony of any witness, within this State, by any party to a suit, is a matter of right in cases when the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith. Martin v. Hicks, 1 Abb. N. C. 341. The application should be made in good faith. Paton V. Weatervelt, 5 How. Pr. 399. Where the treasurer of an unincorporated association cannot be examined as a party before trial, semble, that an order for his examination as a witness, under subdivision 5 of section 872 of the Code, might in a,proper case be made. Duncan v. Jpnes, 32 Hun, 13. A witness cannot be examined for the purpose of enabling a plaintiff to frame a complaint. In re Bryan, 3 Abb. N. C. 293. Knowlton v. Bannigan, 11 Abb. N.i.C. 419. One who seeks to obtain, in a probate proceeding, the testimony of an aged, sick or infirm witness, residing and being in the county, must adopt the procedure provided by section 2539 of the Code of Civil Procedure, and cannot insist upon taking the deposition of suph person before a referee. Estate of McCoskry, 10 Civ. Pro. 180. And one who expects to be a party plaintiff in an action for slander cannot examine a witness to whom the alleged slander was spoken, unless the affidavit discloses what the slander was. In re Bryan, 3 Abb. N. C. 289. § 873. 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 Code Civ. Peo., § 872. U5 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 affidavit 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. 3. If no action is pending, the nature of the contro- versy which is expected to be the subject thereof. 4. The name and residence of the person to be exam- ined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action, and, at the option of the applicant, the place where he is sojourning or where he regu- larly transacts business. 5. If an action is pending, that the person to be examined is about to depart from the State ; or that he is so sick or infirm 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 resi- dent of the State, or sojourning within the State, or that he has au office within the State, where 10 146 Law op Evidence. he regularly transacts business in person, speci- fying 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 appli- cant's rights, that the witness' s testimony should be perpetuated. 7. Any other fact necessary to show that the case comes within one of the last two sections, or rel- evant to the questions specified in the next sec- tion, 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 pro- duction of such books and papers. Taken from §S 2 and 34 of 2 R. S. 391. General Provisions. The affidavit may be made by the moving party, by his attorney, or by a third person. Corbett v. DeComeau, 4 Abb. N. C. 252. See Hale v. Rogers, 22 Hun, 19. The court, at a special term, has no power to grant an order for the examination of a party. Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278. The application must be made to, and the order granted by, a Judge, not by the court. Heishon z-. Knickerbocker Life Ins. Co., Id. The special county judge of Oneida county has power to make an order requiring a party to appear and be examined upon the application of his adversary. Kinney v. Roberts & Co., 26 Hun, 166. Code Civ. Pro., § 872. 147 The recorder of the city of Watertown has power and may make an order for the examination of a defendant, under sections 872 and 873 of the Code of Civil Procedure. Babcock v. Bolston, 8 How. Pr. N. S. 360. Where no action is pending, the papers, in a proceeding for leave to examine a witness, should not be entitled in the action, as expected to be brought, but " in re," or "in the matter of the application," etc. In re Bryan, 3 Abb. N. C. 389. They may be entitled " in re expected action of. " In re Morris i). Matthews 19, Wk Dig. 375. To obtain the examination of a party before trial, each requjrement of the Code must be satisfied in the affidavit upon which the order is based. Dunham ®. Mer. Mut. Ins. Co , 56 How. Pr. 340. A denial in a pleading affords no exemption to the party who made the denial from being examined as a witness to prove the fact denied ; for it is the denial only which renders such proof necessary. Sweeney i). Sturgis. 24 Hun, 166. Olney v. HatclifE, 37 Hun, 387. Nor a denial by affidavit of ability to furnish the inform- ation desired. Davis V. Stanford, 37 Hun, 533. But an examination of the plaintiff before trial will not be allowed at the instance of the defendant, before answer, where the nature of his defence is a general denial. Lathrop v. Brown, 5 Civ. Pro. 101. An affidavit to obtain an order for the examination of parties defendant before trial, which sets forth the names and residences of all the parties to the action, and that the defendants have not appeared, the nature of the action, the substance of the cause of action, the names and residences of the persons to be examined, that their testimony is ma- terial and necessary, and that they are parties to the action, contains all the requisites necessary under this section. Ludewig «. Pariser, 4 Abb. N. C. 347. 148 Law of Evidence. The decisions upon the construction of §§ 390, 391 of the Code of Procedure, as to what must be shown in the affi- davit, are not applicable to the construction of section 870, et seq., of the present Code on the same subject. Hynes v. McDermott, 7 Daly, 513. Sttbdivisiont Owe. That the names are given by the title of the action, pre- ceding the affidavit, is insufficient, as the affidavit must state the names and residences of all the parties to the action, and whether or not they have appeared. Beach d. Mayor, 14 Hun, 81. Also where the attorneys for the plaintiff are named, and an address is given, as the affidavit does not state whether it is the residence or office address of the attorney. Beach i>. Mayor, id. Van Roy v. Harriott, 30 Hun, 77. If the residence of the adverse party is unknown, an attempt and failure to ascertain it, must be stated. Dunham v. Mer. Mut. Ins. Co. 56 How. Pr. 340. The affidavit is defective, in not stating the appearance of the attorney for the plaintiff and giving his residence or office address. White i>. Downey, 3 Law Bull. 93. The residence or office address of the applicant's attorney must be stated in the moving affidavit, or no right to exam- ine the adverse party will be made out. Dunham v. Mer. Mut. Ins. Co., 6 Abb. N. C. 71. Beach v. Mayor, 14 Hun, 80. Van Roy ii. Harriott, 30 Hun, 77. SlJBDIVISION Two. This subdivision was amended by the laws of 1879, chap. 542. The former provision read as follows : "The nature of the action and the substance of the cause of action and of the judgment demanded therein ; or, if no action is pending, the nature of the controversy, which is expected to be subject thereof." Code Civ. Pro., § 872. 149 It is incumbent upon the defendant, whether making the application for the examination, before or after the answer, to set forth in his affidavit the nature of his defence. Robertson v. Russell, 20 Hun, 243. Schepmoes v. Bousson, 1 Abb. N. C. 481. Durant «. Abendroth, 1 Law Bull. 3. This subdivision only requires that the affidavit, when made by the plaintiff, shall set forth : 1st, the nature of the action, and, 2d, the substance of the Judgment demanded. Boorman v. Pierce, 56 How. Pr. 353. Greer v. Allen, 15 Hun, 433. Kaufman v. Herzfield, 1 How. Pr. N. S. 444. Frothingham v. Broadway, etc , R. R. Co., 9 Civ. Pro. 314. It must show the nature and cause of the action. Greer «. Allen, 15 Hun, 433. It must appear that the plaintiff has a cause of action against the defendant, as such examination will not be allowed for the purpose of informing the plaintiff, whether he has such a cause of action or not, DeLeon v. DeLima, 66 How. Pr. 287. See also Winston ». English, p. 154. The existence of a cause of action is not established by an affidavit of what the action is brought for. Hale B. Rogers, 32 Hun, 19. It must be shown that the moving party has a good cause of action, or a good defence. McCoon V. White, 60 How. Pr. 149. The application before answer must specify the special matters of defence upon which it is desired to examine plaintiff. Shaw V. Van Rensselaer, 60 How. Pr. 143. Where the affidavit shows that plaintiff has no cause of action against the defendant sought to be examined, such order wUl be vacated. Worthiem v. Page, 10 W'k Dig. 26. An affidavit is defective which alleges that the plaintiff's 150 • Law of Evidence. action is for a recovery under Chapter 18, Part 1, Revised Statutes. It is too vague, indefinite and uncertain. Boorman v. Pierce, 56 How. Pr. 353. The failure of defendant to set forth in his affidavit the nature of his defence is a fatal defect. The qualification, "after answer," in subd. 2 of § 872, applies only to an action by the plaintiff. Walters «. Bushwick, 8 W'k Dig. 390. Where the complaint is on a promissory note and no an- swer has been put in, and it is sought to examine the defendant as to the consideration of the note, the plaintiff should show a reasonable expectation on his part that the consideration is to be denied to entitle him to the order. Kane v. Clarke, 3 How, Pr. N. S. 370. SuBDivisioisr Thkee. This subdivision was amended by the laws of 1879, chap. 542. This is a substitute for the i)ro vision which is now part of subdivision two, and which reads as follows : "If the application is made by the defendant in a pending action, or by the plaintiff after answer, the nature of the defense." Subdivision Four. This subdivision was amended by the laws of 1877, Chap. 416, by inserting after the word "examined" the words ' ' and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action." Name of Person. The affidavit does not comply with this subdivision when the name of the person to be examined is not stated, except by calling him the plaintiff. Beach v. Mayor, 14 Hun, 80. The word ' ' person " evidently embraces both a party to an action and a witness. Adams v, Cavanaugh, 37 Hun, 334, Code Civ. Pro., § 872. 151 Material and Necessary. The examination will be directed almost as a matter of course when it is material and necessary, and where the application is not one for the purpose of extracting evidence by unnecessary procedure, and is made in good faith. Hardy v. Peters, 30 Hun, 79. This subdivision, in conjunction with Rule 89 (83 of 1884), require that the facts and circumstances should be specified, showing that the testimony of the party is material and necessary. It is insufficient to simply state, in the language of the rule, that the examination is material and necessary. In re Bryan, 3 Abb. N. C. 289. Chapin v. Thompson, 16 Hun, 56. Byrne v. Mulligan, 41 Super. Ct. 515. Simonds ». Hudson, 4 Abb. N. C. 347, note. Corbett v. DeComeau, 5 Abb. N. C. 169. Greer v. Allen, 15 Hun, 435. Robertson v. Russell, 20 Hun, 245. Hale V. Rogers, 22 Hun, 19. Crooke d. Corbin, 23 Hun, 176. Burbank v. Reed, 1 Civ. Pro. 42, note. Williams ». W. U. Tel. Co., 1 Civ. Pro. 294. Neurath v. Schmitz, 2 Civ. Pjo. 405. Wallace ». Wallace, 19 W'k Dig. 495. Wayne Co. Sav'g B'k « Brackett, 31 Hun, 434. Tennel ». Photo Plate Co., 1 Law Bull. 88. The contrary was held in Hynes v. McDermott, 55 How. Pr. 359. Daly, C. J., dissenting. An application by a defendant should show that the facts sought to be discovered are material to the defense. Schepmoes ®. Bousson, 1 Abb. N. C. 481. The examination must not only be material, but it must be necessary. It is not indispensible that it be absolutely necessary. Schepmoes v. Bousson, id. Shethar ii. Babcock, 1 Civ. Pro. 83, note. The examination of a defendant before trial cannot be ordered for the purpose of ascertaining facts, which the plaintiff can learn from other sources which are accessible to him. Nott «. Clews, 30 Wk. Dig. 274. 152 Law of Evidence. The application should not be granted, unless it appears to be in good faith, for the purpose of discovering matters peculiarly in the knowledge of the adverse party, and that the testimony sought is material to the applicant upon the trial. Schepmoes v. Bousson, 1 Abb. N. 0. 481. An application, to examine an adverse party, should explicitly allege his knowledge of specific facts and circum- stances, and that he can testify thereto, and that such facts are material to the case of the applicant. Elmore ». Hyde, 3 Abb. N. C. 129. It must state that the testimony is material and necessary. Beach «. Mayor, 14 Hun, 80. The existence of facts which a party desires to examine his adversary before trial to prove, must be alleged in the affidavit. An allegation that the party desires to prove such facts is insufficient. Kirkland u. Moss, 11 Abb. N. C. 421. Sources of Information Must be Given. Although the affidavit may be made by the attorney, the materiality of the testimony of the witness must be alleged upon his own knowledge, or if it is made upon information, the sources thereof must be given. Hale «.' Rogers, 22 Hun, 19. And the affidavit of plaintiff' s attorney, that he believes such examination necessary, is insufficient. Simonds v. Hudson, 4 Abb. N. C. 247. Where the affidavit only stated that deponent was advised that it was necessary to have an examination, and did not state that deponent believed it to be necessary, it is insufficient. Boyd ®. Elias, 3 Law Bull. 81. An affidavit for the examination of a party before trial, Code Civ. Pro., § 872. 153 the allegations of wliich are upon belief, and in whicli the grounds of belief are not stated, is insufficient. Betbe v. Richardson, 2 McC. C. P. 319. Strong «. Strong, 3 Robt. 675. Hale v. Rogers, 32 Hun, 19. Elmore v. Hyde, 2 Abb. N. C. 129. An affirmation in an affidavit, upon information and belief, without giving the evidence upon whicli that belief is founded, is entirely nugatory. Tilton V. V. S. L. Ins. Co., 1 Abb. N. C. 348. And where the affiant swears that he has no knowledge or belief, as to what matters the defendant can testify, the affidavit shows the testimony is not material and necessary. Dart V. Laimbeer, 47 Super. Ct. 490. Where the affidavit does not show that the person swear- ing that the examination is necessary and material, has any knowledge of the facts, the order will be set aside. Watson 1). Bedlon, N. Y. Dai. Reg, 1878. "When Order not Granted. An order, made on argumentative affidavits, will not be sustained. Beach v. Mayor, 14 Hun, 80. Where the affidavit states enough to show the materiality of the examination, other facts and conclusions, stated by way of argument, should not defeat the examination. Miller v. Kent, 59 How. Pr. 823. A fishing excursion will not be allowed. Schepmoes v. Bousson, 1 Abb. N. C. 484. DeLeon v. DeLima, 66 How. Pr. 387. LatUrop v. Brown, 5 Civ. Pro. 101. In re Dounce, 7 Civ. Pro. 426. Hardy v. Peters, 30 Hun, 79. Nor should it be granted for mere inquisitorial purposes. White 11. Downey, 3 Law Bull. 102. Schepmoes v. Bousson, 1 Abb. N. C. 481. Frazier v. Davids, 1 How. Pr. N. S. 494. 154 Law of Evidence. Nor to enable plaintiff to show fraud on whicli to arrest defendant. Macy V. Hastings, 3 Law Bull. 87. A party cannot be examined before trial for the purpose of obtaining admissions. McMahon v. Brooklyn C. R. R. Co., 20 Wk. Dig. 404. A desire to be informed what a party will swear to, or what are the names or number of his witnesses, is not within the objects of the provision. Fourth Nat. Bank d. Boynton, 29 Hun, 441. Beach «. Mayor, 14 Hun, 79. Chapin «. Thompson, 16 Hun, 56. Schepmoes v. Bousson, 1 Abb. N C. 481. Wallace v. Wallace, 19 Wk. Dig. 495. Frazier ». Davids, 1 How. Pr. N. S. 494. Nor to get testimony, not to use upon the trial, but merely to furnish the moving party with information to enable him to look upon witnesses to be used against his opponent. Beach v. Mayor, 14 Hun, 79. Chapin v. Thompson, 16 Hun, 53. It is necessary to satisfy the court that the examination is sought for the purpose of establishing facts important to the issues in the action, and necessarily known to the parties whose examination is directed. Tenney v. Mautner, 1 Civ. Pro. 71. Where the affidavit states that plaintiff wishes to discover the "status of one defendant to another, and the truth of the matters set forth in the complaint," it is not sufficient. Smyth v. McGovern, 7 Wk. Dig. 480. A plaintiff cannot be examined as a party before trial, before answer, for the purpose of informing the defendant whether he has a counterclaim. Lathrop b. Brown, 5 Civ. Pro. 101. The object of the examination is not to ascertain whether he has a cause of action, or a defense, but to obtain Code Civ. Peo., § 872. 156 testimony in support of a cause of action, or defense, which he thinks he has. Winston v. English, 44 How. Pr. 398. So, where the object of the examination is not to collect proof in aid of the action, but to ascertain whether or not they have a cause against the defendant, the order will be vacated. Juillard v. Brown, 3 McC. C. P. 321, n. Application may be made by the plaintiff, after issue joined, only to enable the plaintiff to obtain testimony which may be pertinent and useful in the prosecution of the action to make out his own case. Beach v. Mayor, 14 Hun, 80. Chapin v. Thompson, 16 Hun, 53. Fourth Nat. Bank v. Boynton, 29 Hun, 442. Fogg V. Fisk, 80 Hun, 61. "Wayne Co. S. Bank v. Brackett, 31 Hun, 484 The examination cannot be had to prepare for a defense or for trial, unless the testimony is to be used upon the trial. Gilbert v. Third Ave. R. R. Co., 49 Super. Ct. 130. Whether this so appears, is to be ascertained by constru- ing the affidavit as a whole. Gilbert i>. Third Ave. R. R. Co. id.. If the lobject of the application seems to be to obtain evidence to support plaintiff's cause of action, and not necessary to enable plaintiff' to frame his complaint, the order will not be granted. RestofE V. Ehrich, 1 Law Bull. 3. Where the affidavit simply states that the "defendant's testimony is material and necessary for the party, making this application, and the prosecution of this action," and that " the plaintiff cannot safely proceed to trial, without examining the defendants," it is insufficient. Crooke v. Corbin, 23 Hun, 176. Where an affidavit for the examination of a defendant before trial, details the circumstances, as to which proof will be required, which it is expected the defendant will be able to give, in such a manner as to establish, to a reason- 166 Law of Evidence. able certainty, its materiality, followed by an expression of belief, that the examination and testimony of the defend- ant, relative to the issues, are both material and necessary to the plaintiff, for the prosecution of the action, it com- plies sufficiently with the requirements of this section. Fogg V. Fisk, 65 How. Pr. 351. A defendant cannot be examined before trial for the purpose of obtaining proof, that his signature to the certificate of incorporation of a certain corporation, is genuine, when it is not denied that such signature was acknowledged as required by law. Nott ®. Clews, 30 Wk. Dig. 274. Intention to Use on Trial. The moving papers must disclose an intention to use the deposition at the trial. Russ V. Campbell, 1 Civ. Pre. 41. Neuratli v. Bchmitz, 2 Civ. Pro. 401. KuowltoQ ». Bannigan, 11 Abb. N. C. 421. Battersou v. Sanford, 45 Super. Ct. 127. Dart V. Laimbeer, 47 Super. Ct. 491. Gilbert o. Third Ave. R. R. Co., 49 Super. Ct. 139. Contra, McCoon i>. White, 60 How. Pr. 149. White V. Downey, 3 Law Bull. 93. But where the application is for the defendant to appear and be examined, to enable the plaintiff to obtain facts necessary to enable the plaintiff to frame his complaint, the affidavit need not state that the plaintiff intends to use the deposition upon the trial. Brisbane v. Brisbane, 30 Hun, 49. A statement in the affidavit that the examination is desired for the purpose of using it on the trial, is not equivalent to a statement that the applicant desires to offer or read it in evidence on the trial. McMahon i). Brooklyn C. R. R. Co., 20 Wk. Dig. 404. The allegation in the affidavit that the examination is necessary to prosecute the action is not sufficient. Knowlton v. Bannigan, 11 Abb. N. C. 430. Code Civ. Pro., § 872. 157 The affidavit need not state 'explicitly that the plaintiff intended to produce the evidence so to be obtained as part of the proof of his case, upon the trial; it is sufficient if his intention so to do, may be reasonably inferred from the statements therein contained. Fogg V. Fisk, 30 Hun, 61. Dart D. Laimbeer, 47 Super. Ct. 490. It must appear that there vs^as a bona fide purpose to take evidence of the party to use upon the trial. This need not be stated in direct and positive terms, and the law will be complied with, when that fact shall be made to appear as one that has been established by the evidence. Van Roy v. Harriott, 66 How. Pr. 269. Affidavits that state that plaintiff cannot safely jiroceed to trial, without defendant's deposition, that the testimony is material and necessary to enable the plaintiff to prepare for the trial of, and to safely try the action; yet nowhere states that it is the intention of the plaintiff to use the deposition, or the testimony on the trial, are defective. They imply the intention not to use the testimony on the trial. Batterson ». Sanford, 45 Super. Ct. 137. Subdivision Five. Amended by the laws of 1877, chapter 416, by placing at the beginning the words "if an action is pending," and by striking out the words "of the action pending or to be brought as the case requires; " and in the last sentence the words "a pending," and inserting in the place thereof the word "the." It was again amended by the laws of 1879, by inserting the words "or that any other special circum- stances exist which render it proper, that he should be examined as prescribed in this article." The " special circumstances " which authorize an examin- ation are circumstances of the same general nature as those mentioned in the preceding part of the same subdivision. Knowlton v. Bannigan, 11 Abb. N. C. 420. The "other" circumstances evidently mean such as will make the presence and evidence of the witness at the trial 158 Law of Etidewce. doubtful and uncertain, and relate to his personal condition and purposes, as bearing upon the probability of his future attendance. Town of H. 1). First Nat. B'k, 93 N. Y. 83. A party to an action cannot have an order for his own examination, in his own behalf, before trial, merely on the ground that he is about to depart from the State, or so sick that he will be unable to attend the trial. Preston 6,. Hencken, 9 Abb. N. C. 68. It has been held otherwise, and that a party about to de- part from the State may have his deposition taken at his own instance, notwithstanding this subdivision, as the amendment of 1878 to section 870 provided, that it might be thus taken, as prescribed in the article of which sections 870 and 872 form a part. Briggs V. Taylor, 4 Civ. Pro. 328. Subdivision Six. This subdivision was amended by the laws of 1879, chap. 542, and is a substitute for the original subdivision, which read: "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 if two or more persons are expected to be adverse parties, that they are all so resident or sojourning." The papers must show that the applicants have, or believe that they have, a cause of action against the party whose examination is asked. In re Dounce, 7 Civ. Pro. 426. And they must fully show the existence of a right of action, and that it is to be brought. In re Dounce, 7 Civ. Pro. 426. The examination of the defendant in an expected action, to enable the expected jilaintiff to obtain facts necessary to enable him to frame a complaint, cannot be had when there is no obstacle in the way of the plaintiff's immediately commencing it, and no necessity is shown for taking the Code Civ. Peo., § 872. 159 examination of the expected defendant, in order to perpet- uate Ms testimony. In re Morris v. Matthews, 19 W'k Dig. 375. It is necessary to state, in an affidavit, what the circum- stances are which render it necessary lor the protection of the applicant's rights, that tlie witnesses' testimony should be perpetuated. In re Ketclium's Application, 60 How. Pr. 154. The amendment to this subdivision requires the applicant to show that he is in danger of losing the evidence of his right before it can be judicially investigated. To prove that such danger exists, it is incumbent on the complainant to allege that he has a^ interest present or contingent in the property and that the defendant has, or claims to have an in- terest. He must further show that he is in danger of losing his witness by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he could at once bring the suit, he must show that it has been commenced. If no action is pending, he is obliged to explain why he is not able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment to an immediate trial in a court of law. In re Ketchum's Application, 60 How. Pr. 154. Subdivision Seven. This subdivision was amended by the laws of 1877, chap. 416, by adding the following: "or relevant to the ques- tions, specified in the next section." It was again amended by the laws of 1880, chap. 536, by striking out the amend- ment of 1877 and adding the words, "and if the party sought to be examined is a corporation, " etc. The of&cers and directors of a corporation may be exam- ined when their testimony is necessary and material, but not its servants, agents or employees. Reichmann v. Manhattan Co., 26 Hun, 433. And its books must be produced by the officers and di- rectors on the examination. Frothingham v. Br'dw. etc. R. R. Co., 9 Civ. Pro. 304. 160 Law of Evidence. This provision does not contemplate an order for a dis- covery, or what is its equivalent, an examination and inspection of books and papers. Dick -0. Phillips, 41 Hun, 604. § 873. 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 partic- ular 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 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, tinless special circumstances, making a difiierent time of service necessary, are shown in the affidavit, and that fact is recited in the order. This section was taken from the 2 R. S., 391, § 3, and the last clause of § 34. It was amended by the laws of 1879 by inserting the words, "and that the application is made in good faith to preserve the expected testimony." Also the second sentence. Also, by inserting after the words "the order must require the party or person to be examined to appear before a judge or " the words " except Code Civ. Pko., § 873. 161 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." It was again amended by the laws of 1884, chap. 399, by striking out the exception in the amendment of 1879. General Provisions. The order for an examination must be granted'by a judge and cannot be by the court. Heishon v. Knickerbocker L. Ins. Co. , 77 N. Y . 378. Burt » Oneida Com. , 31 W'k Dig. 343. An order, for the examination of a party before trial, can be made by the county judge in an action in the Supreme Court pending in his county, and as a county judge, for the purposes of the order and examination, he possesses co- ordinate powers with justices of the Supreme Court. Corbett v. Gibson, 16 Hun, 341. Burt V. Oneida Com., 31 W'k Dig. 343. Prior to 1884, and under the amendment of 1879, a party, or expected party, to an action, could only be examined before a judge, and not before a referee. Berdell ii. Berdell, 86 N. Y. 519. This is not the law now, as that part of the amendment of 1879, under which this case was decided, was struck out by the amendment of 1884. L. 1884, chap. 399. If no action is pending there must be reasonable ground to believe that an action will be brought. It cannot be a matter of conjecture only. In re Bryan, 3 Abb. N. C. 394. Examination, When and How Far, Matter of Right. The examination of a party to an action before trial at the instance of the adverse party, is a matter of absolute right, and no longer rests in discretion. Ludewig v. Pariser, 4 Abb. N. C. 351. McGuffin V. Dinsmore, 4 Abb. N. C. 341. Webster «. Stockwell, 8 Abb. N. C. 116. Levy «. Loeb, 5 Abb. N. C. 157. Heurstel ■». TiJman, 1 Civ. Pro. 83, note. Harrold v. N. Y. etc. R. R. Co., 31 Hun, 268. 11 ■ 162 Law op Evidence. For modification of this rule, see page 165. His examination is a matter of right upon wliich the plain tifl: may insist, irrespective of restrictions and condi- tions existing before the Code of Civil Procedure. McGuffln V. Dinsmore, 4 Abb. N. C. 241. This section renders it obligatory upon the justice, to whom the affidavit is presented, to grant the order, provided the facts required by section 872 be stated and appear in the affidavit. Webster ». Stockwell, 3 Abb. N. C. 116. Levy v. Loeb, 5 Abb. N. C. 157. But when the party to be examined comes into court, then the j)roceedings must be subject to judicial control, and he can vacate the order upon cause shown. Levy v. Loeb, id. If the judge must grant the order, and when once made the order cannot be vacated again for cause assigned by the party to be examined, then the order would amount to a general irrevocable statutory search warrant, which can be demanded as a matter of right. Levy D. Loeb, id. The court cannot refuse to grant an order for the examin- ation of a party to an action actually pending. Harrold ». N. Y. etc. R. R. Co., 21 Hun, 268. The right to examine the opposing party before trial, shown by experience to be beneficial, is preserved by this section, and the courts would be guilty of a grave error, should they allow it to be frittered away or unduly limited. Harrold v. N. Y. etc. R. R. Co., id. The inconvenience, imi3olicy, hardship or injustice of a law affords no warrant for its abrogation by the jtidiciary. Ludewig «. Pariser, 4 Abb. N. C. 249. The judge must grant the order, when an affidavit is pre- sented to him, setting forth the facts required by section 872. The applicant is not bound "to make it appear " to the judge, that is, to convince him by a mass of evidence, Code Civ. Peo., § 873. 163 positive, direct or circumstantial, that these allegations are founded on fact. Hynes v. McDermott, 55 How. Pr. 262. The right of a party to examine his adversary before trial is a matter of strict right which no court has power, by rules or otherwise, to limit or abridge, and the examination, in- stead of being had at the trial, can be had at any time before trial. Heurstel ■». Tilman, 1 Civ Pro. 83, note. The examination of an adversary will not be allowed, where a bill of discovery would not have been sustained in equity. Phoenix v. Dupuy, 7 Daly, 238. If the necessary facts are shown the granting of the order is a matter of right, but otherwise not. Byrne v. Mulligan, 41 Super. Ct. 515. The affidavit should satisfy the judge that the examination is required to obtain justice between the parties. Schepmoes v. Bousson, 1 Abb. N. C. 481. Under this section the court is not bound to grant an order in every case where the application is formerly correct, but it may examine into the facts and the objects thereof, to see that the law is not being perverted to mischievous and un- just ends. Chapin o. Thompson, 16 Hun, 53. PhcBnix V. Dupuy, 7 Daly, 238. M. N. Bank v. Sheehan, 101 N. Y. 176. It may refuse to grant an order when the examination is to prove what may result in a criminal charge. Phojnix ». Dupuy, 2 Abb. N. 0. 146. See page 188. When the affidavit contains all the facts which the Code of Civil Procedure and the general rules require to be stated therein, it is imperative upon the judge to grant the order. Sweeney v. Sturgis, 24 Hun, 167. If the facts and circumstances are sufficient, the judge must grant the order for the examination, but if they fail 164 Law of Evidence. to satisfy the judicial mind, the Judge is not bound to grant the order, but should refuse the same. Greer v. Allen, 15 Hun, 435. The perpetuation of testimony under the Revised Statutes " ■ ht. Martin v. Hicks, 1 Abb. N C. 342. was a matter of right, It has been held that the granting of the application was not a matter of right, and that the absence of doubt as to the witnesses' ability to attend raised a presumption of bad faith. Cheever v. Saratoga Co. B'k, 47 How. Pr. 876 The granting of an order before an action has actually been commenced, for the examination of a person against whom such an action is " about to be brought," upon the application of the person who is about to bring the action, is within the discretion of the court, and, it seems, the cases are rare where justice will be promoted by granting it. M. N. Bank i>. Sheehan, 101 N. Y. 176. May Limit Examination. When a party to an action is to be examined, the judge who grants the order may, in his discretion, ' ' designate and limit the particular matters as to which he shall be examined. " Burt V. Oneida Com., 21 W'k Dig. 343. Also see amendment of 1884. Service of Order. The order for the examination of an adverse party must be personally served upon the party to be examined. The service upon the attorney alone, is insuificient to subject the party to any punishment in such proceeding. Riddle v. Cram, 3 Abb. N. C. 117, note. Loop 1J. Gould. 17 Hun, 585. Tebo ». Baker, 77 N. Y. 33. AfE'g 16 Hun, 183. Mayer v. Noll, 56 How. Pr. 214. Order May Be Vacated. The court may vacate the order for examination. Corbett v. DeComeau, 5 Abb. N. C. 169. Code Civ. Pro., § 873. 166 If an affidavit, on which an order for the examination of a party before trial has been obtained, is shown to be defi- cient in any necessary particular, the order may be vacated. Levy ». Loeb, 5 Abb. N. C. 159. Corbett v. DeComeau, 5 Abb. N. C. 169. It may be vacated, if the allegations of the affidavit, though sufficient by themselves, are successfully met by opposing proof. Levy V. Loeb, 5 Abb. K C. 157. Also, where there is reasonable ground to believe it was obtained to vex, or annoy, or if an improper purpose is shown, but only when the facts are distinctly presented by affidavit. Sumner «. Hosford, 12 W'k Dig. 440. On the return of the order for examination, where the parties are before the court, a motion may be made to dis- charge it, on affidavits, without giving previous notice, or serving copies of such affidavits. Barker v. Wilder, 10 W'k Dig. 352. Submitting to a partial examination, waives the right to move to vacate. Erie R. R. Co. ®. Champlain, 35 How. Pr. 74. The order affects a substantial right and is reviewable on appeal. Berdell ». Berdell, 86 N. Y. 519. Form of Order. It has been required that an order for examination, and an order for extension of time, or other special relief, should be made by separate orders. Gross ». Little, 1 Civ. Pro. 103, note. Form of order for examination. Webster v. Stockwell, 3 Abb. N. C. 116, note. See form No. 17. 166 Law op Evidence. §874. Punishment foe Disobeying Ordek; Witnesses' fees, at the rate prescribed by law in an action in the Supreme Court, must be paid, or tendered, when the order is served upon the party or other person required to attend. 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. This was amended by the laws of 1882, by the addition of the first sentence. Where a party to an action is made a witness by his adversary, he is entitled to witnesses' fees. Hewlett V. Brown, 1 Bosw. 655. The party who is served with an order for examination must be paid his witness fees to entitle the moving party to the relief as provided for in this section. McGregor v. Ball, 7 W'k Dig. 312. Gawthrop v. Leary, 9 W'k Dig. 176. Shilton ». Smith, 1 Law Bull. 35. It is not necessary under the Code of Civil Procedure that a subpoena should accompany an order for the exami- nation of a party before trial. Pake V. Proal, 2 Abb. N. C. 418. If he fail to obey the order he may be punished for con- tempt, and if he is a party to an action the court may strike out his pleading. §853. Goughe V. Laroche, 14 How. Pr. 451. And he may be punished by fine, imprisonment, or by striking out his pleading, as prescribed by sections 852 to 863. Riddle v. Cram, 3 Abb. N. C. 117, note. Code Civ. Pro., § 874. 167 But an order for tlie examination of a party, before trial, cannot be enforced by proceedings for contempt without proof of personal service of an order on the party, and payment, or tender of his fees. Freiberg v. Branigan, 3 Abb. N. C. 131. Wood «. Keal, 3 Abb. N. C. 133, note. If a party, attending to testify as a witness before trial, refuses to answer a material and proper question, his plead- ing may be stricken out, and may be punished as for a contempt. Richards v. Judd, 15 Abb. N. 8. 184. Kiernan v. Abbott, 1 Hun, 109. It seems that upon notice to show cause the court cannot punish a party for contempt in failing to appear without service of afSdavits, charging him with his misconduct, and the allowance of a reasonable time to enable him to make his defense. Thaule i). Ritter, 13 Abb. N. S. 439. § 875. Seevice oe Obdee, 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. This section was not in the Code of Procedure. It was amended by the laws of 1879, by striking out the words, "who is required thereby to appear," after the words "at- torney for each party to the action. ' ' It was intended to provide for a service upon the attor- ney of each party, of a copy of the order as a notice, in ad- dition to the personal service upon the party who is to be examined. Tebo V. Baker, 16 Hun, 183, 168 Law of Evidence. Where the order has been served on the attorney only, the party cannot be punished for a disobedience thereof, because he is not required to obey it. Tebo «. Baker, id. It has been held on motion to vacate the order that where the party sought to be examined has appeared in the action, the service upon his attorney only is sufficient ; but not, if he has not appeared. Webster v. Stock-well, 3 Abb. N. C. 116. Thompson ». Sickles, 3 Abb. N. C. 121. If a party has not appeared in the action, the papers must be served on him, as directed by the order. Pake V. Proal, 54 How. Pr. 93. Watson V. Bedlin, Daily Register of 1878. The service of an order upon a party, vs^ho has appeared as attorney in person, is equivalent to service upon his attorney. McGregor ». Ball, 7 W'k Dig, 312. § 876. Examination of Adverse Paktt. Upon proof, by affidavit, that service of a copy of the order and of the affidavit 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 fifty-six, 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. Based upon the 2 E. S., 392, § 5, and id. 399, § 36. It was amended by the laws of 1879, by adding the last sentence. Code Civ. Pro., § 876. 169 No power is conferred upon the court to take the exam- ination. HeishoQ v. Knickerbocker L. Ins. Co., 77 N. Y. 378. The examination must be had in the county where the party either resides, or has an office for the regular trans- action of business in person. Marsh ». Woolsey, 14 Hun, 1. Hesse «. Brigga, 45 Super. Ct. 417. Gustaf v. Am. St. Co., 31 Hun, 95. The examination must proceed, if no motion be made to vacate the order, or the motion to vacate be denied. But the direction to proceed is not inconsistent with the exercise, for cause shown, of the power to vacate. Levy v. Loeb, 5 Abb. N. C. 157. § 877. Paett Confined in Peison. Where the party or other person to be examined is con- fined in a prison or jail within the state, under a sentence for a felony, that fact must be stated in the affidavit, and his deposition may be taken as prescribed in the foregoing sections, as if he was not so confined, except that in such a case the granting or refusing the order, and, if granted, the appointment of a referee to take the testimony is always in the discretion of the judge. The order must require the production of the prisoner by the person in charge of the prison or jail, at the prison or jail ; but it may prescribe such regulations and restrictions with respect thereto, as the judge deems proper. This section was repealed in 1877, but was re-enacted by the laws of 1882, chap. 397. §878. This section was repealed by the laws of 1877. 170 Law of Evidence. § 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 interrog- atories, 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. But this section does not apply to a case specified in section eight hundred and seventy-seven of this act. Taken from the laws 1847, chap. 280, §§ 78 and 79. It was amended by the laws of 1882, chap. 397, by adding the last sentence. § 880. 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 sub- ject 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. 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 ofllce of the clerk ; or, if no action is pending, in the ofiice of the clerk of the county in which it was taken, together with the stipulation or order under which it was taken ; the Code Civ. Pro., § 880. 171 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. This section is founded on 2 R. S. 392, §§ 6 and 6. It was amended in 1879 by adding the lirst and last sentences, and by inserting the words, "upon every other examination taken, 'L in the place of the words, " taking a deposition," and the words, "person examined" in the place of the word "witness," in the third sentence. The examination of a party under an order is subject to the same rules as if he was examined upon the trial. Greismann v. Dreyfus, 4 Civ. Pro. 38. Yamato T. Co. v. Brown, 37 Hun, 248. Adams v. Cavanaugh, 37 Hun, 235. The Statute is mandatory and compels the judge or referee to insert in the deposition every answer or declaration of the witness examined, which either party requires to be included therein. Hewlett V. Wood, 67 N. Y., 399. Ludewig ». Pariser, 4 Abb. N. C. 248. In re Bryan, 3 Abb. N. C. 292. Levy V. Loeb, 5 Abb. N. C. 162. Parsons v. Belden, 9 Abb. N. C. 57. No question should be permitted, the answer to which may in any way tend to subject the witness to a criminal prosecution or penalty, or render him infamous. Funk V. Tribune Asso., 4 Civ. Pro. 408. Kini*y v. Roberts & Co., 26 Hun, 166. The fact that questions may be put on such examination which will tend to criminate the witness, affords no justifi- cation for his refusing to be sworn. Greismann v. Dreyfus, 4 Civ. Pro. 82. The judge, before whom the examination is taken, can prevent irrelevant and improper questions from being put to the witness. Smith ■!). Rauth, 1 Civ. Pro. 92, note. Hynes ®. McDermott, 55 How. Pr. 259. 172 Law op Evidence. And the limit of cross- examination is within the discre- tion of the judge conducting it. Plato V. Kelley, 16 Abb. 188. Where testimony is taken de hene esse, an objection to the form of the question asked should be taken when the deposition is made. If not so taken, it will be deemed to have been waived. Hebbard v. Haughian, 70 N. Y. 55. Where a party appears and cross-examines the witness, though objecting that power to take the examination is exhausted, he waives all irregularities in the proceedings to have the witness examined. Rushmore ». Hall, 13 Abb. 420. The certiticate must state that the deposition has been read to the witness and subscribed by him, and such read- ing must take place in the presence, or at least under the general supervision, of the officer taking the same, and it must be subscribed in his presence. Foster z/. Bullock, 13 Hun, 300. It is not necessary for the judge himself to write down the examination of the witness. It is sufficient that he administers the proper oath, and then, after the witness has been examined in his presence, and the examination has been written down by counsel, that he sees that it is read over to the witness before the signing and certifying thereof. McDonald v. Garrison, 9 Abb. 34. Foster v. Bullock, 12 Hun, 200. See Clark v. Brooks, 36 How. Pr. 254. Where the evidence of a dying witness was taken by a referee at the instance of the defendant, and where the stenographer did not write out his notes, it being late on Saturday night, and without objection on the part of the counsel for plaintiff, it was agreed that the minutes be written up and subscribed the following Monday, which was done, neither counsel being present, after the testimony had been read over to the witness, it was held that the counsel for plaintiff waived his right to be- present, and that the court erred in suppressing it. Clark V. Manhattan R'way Co., 1 N. Y. State B. 163. Code Civ. Pko., § 880. 173 It is sufficient that the judge certify that the deposition was read to the witness; the word "carefully" is not indispensible. Sheldon v. Wood, 2 Bosw. 267. The neglect of a party to file the original deposition within ten days may be cured by granting him leave to file it nuno pro tunc. Bank of Silver Creek v. Browning. 16 Abb. 274. Burdell v. Burdell, 1 Duer, 625. The Statutory provision in reference to the filing of the deposition is one which may be waived by the adverse party. Mayer v. Ehrlich, 33 Hun, 1. § 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 assessment of damages, by writ of inquiry, or upon a refer- ence, 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 B,. S., 392, 399, parts of §§ 7 and 39. The words, "any other action," are new. Although the testimony cannot be used on the trial of the action in the U. S. Circuit Court, as a substitute for the oral examination of the party, it can be as the declara- tion of a party, and it can be used in other suits in the courts of this state between the same parties, or their privies. Fogg s. Fisk, 4 Civ. Pro. 844. A party, whose deposition has been taken before trial, at 174 Law of Evidence. the instance of an adverse party, has the right to read such deposition in evidence on the trial in his own behalf. Berdell ». Berdell, 86 N. Y. 519. And this is so even after the death of his adversary. Rice V. Motley, 24 Hun, 144. Where both parties are examined before trial, and one dies, and his executor is substituted for him, the other's deposition may be read in evidence on the trial, although it relates to personal transactions with deceased. McDonald «. Woodbury, 30 Hun, 35. Where a stipulation also provided that either, or both the depositions might be read on the trial, substantial jus- tice requires that the stipulation should be enforced. McDonald v. Woodbury, id. Where plaintiff's testator brought an action to recover damages for personal injuries, and was examined as a wit- ness in his own behalf before trial, upon which he was cross-examined by defendant, and while the action was pending the testator died, and an action was brought by the plaintiff, his executor, to recover damages occasioned to the widow and his next of kin of the deceased, by his death, held, that the deposition of the deceased, taken in the first action, could not, against the defendant's objec- tion, be read in evidence upon the trial of the second action. Murphy v. N. T. C. & H. R. R. Co., 81 Hun, 358. § 883. 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 satisfac- torily proved that the witness is dead, or is unable person- ally to attend by reason of his insanity, sickness, or other Code Civ. Pko., § 882. IT.') infirmity, or that he is confined in a prison or jail, or that he has been, and is absent from the State, so that his attendance could not, with reasonable diligence, be com- pelled by subpoena. Based upon parts of 2 E,. S., 392, 399, §§ 7 and 39. It was amended in 1882, by inserting the words, "or that he is confined in a prison or Jail." Under section 872, subdivision 5, and this section, it is apparent that the testimony of one not a party, and con- nected with the action only as a witness, is taken solely to preserve the evidence for the trial, as against the sick- ness or absence of the witness, and to warrant such order it must appear that there is reasonable ground to believe that he cannot attend at the trial. Town of Hancock v. First Nat. Bank, 93 N. Y. 82. The depositions of parties are subject to a different rule from those of ordinary witnesses. Parties' depositions are admissible without proof that they are dead, insane or absent. Rice V. Motley, 24 Hun, 144. Under the Former La-vtr. A deposition taken de bene esse might be read in evidence on the trial when it appeared that the witness was unable to attend. Johnson v. Bush, 57 N. Y. 633. A woman in an advanced stage of pregnancy will not be required to be present, and her deposition may be read. Clark «. Dibble, 16 "Wend. 601. A deposition cannot be read unless it appears that the witness cannot be procured on the trial. Gardner v. Bennett, 38 Super. Ct. 198. Where reasonable efforts have been made to find the wit- ness, and there is reason to suppose he is without the State, it is sufficient. Roberts v. Carter, 28 Barb. 462. The party must jjroduce proof of the inability of the 176 Law op Evidence. witness to attend at the circuit, and not rely upon the pre- sumption of such inability, arising from the advanced age of the witness. Jackson v. Rice, 3 Wend. 180. A party is competent to prove a witness' s absence from the state. Harris «. Ely, 1 Seld. Notes, 37. Where it was proved that the witness resided out of the State, and that inquiries had been made at the time of the trial, at liis usual place of stopping vfhun in the State, and the result left a reasonable ground to infer his absence from the State, the deposition de bene esse was admissible. Bronner v. Frauenlhal, 37 N. Y. 166. And, where a person had been examined on a commission and upon the trial a witness testilled that he had received letters from such person from places out of the State, after the examination and before the trial, and there was no evidence that such person afterward returned to the State, _ the deposition was properly admitted in evidence. Carman ». Kelley, 5 Hun, 383. Evidence, that the party offering the deposition believed that the witness was absent from the State, that the witness told the party at the time of the examination that he expected to leave the State, that previous to his examina- tion the party was in the habit of seeing him, but since had not seen him, held to be sufficient. Guyon v. Lewis, 7 Wend. 26. To entitle a deposition to be read, the continued absence of the witness from the State must be shown. Donnell v. Walsli, 6 Bosw. 631. The statute requires proof of more than the actual absence of the witness from the State on the day the action is tried. Such a continued absence must be shown that ordinary diligence to procure his attendance by process of law would ■ be ineffectual. Fry V. Bennett, 1 Abb. 393. Residence of a party in another state, at a given time, having been proved, the presumption, unless rebutted, is Code Civ. Pro., § 882. 177 that it continues, and the burden of proof is upon the party alleging a different place of residence. Nixon V. Palmer, 10 Barb. 175. The declarations of a witness, made in answer to questions put to him shortly before the trial, may be given to show his inability to be present. McArthur ». Soule, 5 Hun, 63. § 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 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. This provision is taken from 2 R. S. 398, 399, §§ 9 and 40, and is an amendment thereof. This section should not be construed so as to destroy the deposition of a deceased party, and the adverse party is entitled to its introduction in evidence. Rice V. Motley, 24 Hun, 143. Where the deposition of a party, taken before trial, is read thereon without objection, he is not thereby precluded from being examined on the trial. Misland v. Boynton, 79 N. Y. 630. Where the examination taken out of court has been read upon the trial by the party in whose favor it was taken, the court may properly preclude that party from further exam- ination upon the subjects embraced in the deposition. Berdell v. Berdell, 2 Civ. Pro. 159. But in such case the party would be at liberty to examine 12 178 Law of Evidence. as to new matters, or as to matters which by inadvertence had been omitted. Wilmont «. Miserole, 40 Super. Ct. 321. And this is so when an examination taken out of court is not used or sought to be used by the adverse party, and semble the examination may be general. Berdell v. Berdell, 3 Civ. Pro. 159. § 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 pro- visions of this article. This is the same as § 38 of 2 R. S. 399. § 885. Deposition to be Used on Motion. Where a party intends to make or oppose a motion in a court of record other than a court specified in subdivisions 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 appoint- ing 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 mo- tion and must show that the affidavit or deposition is neces- sary thereon, and that such person has refused to make an Code Civ. Pro., § 885. 179 affidavit of th.e 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 sub- poenaed 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 pro- vides for a different disposition thereof. This is a substitute for § 401, subd. 7, of the Code of Pro- cedure, which read as follows : "When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any per- son who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or dep- osition of such person. Such person may be subpoenaed and compelled to attend, and make an affidavit before such referee the same as before a referee to whom it is referred to try an issue. And the fees of such referee for such ser- vice shall be three dollars per day. The provisions of this section do not apply to criminal cases. People v. Squire, 4 N. Y Cr. R. 583. Id., 3N. Y. State R. 194. The affidavit or deposition taken on examination to be used upon motion, was designed as a substitute for, and to take the place of, and accomplish the same effect as, a vol- untary affidavit would have done when read on motion, had the person so examined made such affidavit instead of refusing so to do. Brooks z/. Schultz, 5 Rob't. 656. Who may be Examined. A party to an action cannot be compelled by the adverse party to make an affidavit for the purpose of a motion. Hodgkin v. A. & P. R. R. Co., 5 Abb. N. S. 73. AfE'd, 3 Daly, 70. Cockey v. Kurd, 13 Abb, N. S, 308. Knoeppel v. Kings Co. P. Ins. Co , 47 How. Pr. 412. Spratt v. Huntington, 3 Hun, 341. It was held otherwise in Fisk 1). Chicago etc. R. R. Co., 3 Abb. N. S. 430. Cockey v. Hurd, 14 Abb. N. S. 183. Overruling, 13 Abb. N. S. 308. 180 Law of Evidence. Under the former law the compulsory method for obtain- ing the affidavit of a person, necessary to be used upon a motion, did not include parties to the action. King V. Leighton, 58 N. Y. 383. Burnett «. Snyder, 41 Super. Ct. 347. The person applying for the order must be a party to the action, and the person to be examined under the order must not be. In re Att'y Gen. t). Cont. L. Ins. Co. , 4 Civ. Pro. 314. James v. Richardson, 89 Hun, 400. Neither the stockholders of an insurance corporation, nor the holders of policies therein, nor creditors thereof, are parties to an action because the corporation is. In re Att'y Gen. v. Cont. L. Ins. Co., 4 Civ. Pro. 214. A witness, who refuses to make an affidavit voluntarily, may be required to attend before a referee and be examined. Allen «. Meyer, 73 N. Y. 1. Bennett v. Edwards, 37 Hun, 354. A physician, who has once made an affidavit to facts derived in a professional capacity for use against his patient, may be compelled at the instance of the patient to make an affidavit upon the same subject. Mason v. Libbey, 3 Abb. N. C. 137. Application for Order. The order under this section cannot be granted on the application of a person not a party to the action in which the motion is made. In re Att'y Gen. ■». Cont. L. Ins. Co. , 4 Civ. Pro. 314. The order may be applied for ex parte. Brooks v. Scliultz, 5 Rob't. 656. To authorize the granting of an order, the judge who grants it must be satisfied by competent and sufficient proof, that the party applying for it intends to make or oppose a motion, that it is necessary for him in making or Code Civ. Pro., § 885. 181 opposing sucli motion to have the deposition of some person who refuses to make a voluntary affidavit. Moses V. Banker, 7 Eob't. 131. Erie R. R. Co., i). Gould, 14 Abb. N. S. 379. It must be shovpn hovr the affidavit sought to be obtained is necessary. In re Bannister, 1 Law Bull. 9. The affidavit for such order should sjiecify the subject on which the witness is requested to depose, and the facts claimed to be within the knowledge of such witness^ and bearing upon the merits of the motion desired to be made. Dauchy v. Miller, 16 Abb. N. S. 100. Where these requisites are not stated in the affidavit, it does not show how the deposition is material and necessary on the motion. Williams v. W. U. Tel. Co., 3 Civ. Pro. 448. It is not enough to allege that in the applicants' opinion it is necessary for him to use the adverse party' s affidavit upon a motion, and that the applicant believes thd facts he seeks to prove are within the knowledge of the adverse party. Cockey v. Hurd, 14 Abb. N. S. 183. An affidavit should be prepared and submitted to the wit- ness to be verified before applying for an order. Fisk V. Chicago etc. R. R. Co., 3 Abb. N. S. 430. Erie R. R. Co. v. Gould, 14 Abb. N. 8. 379. But the objection that no affidavit has been prepared and submitted may be waived, and it is waived if, when asked to make the affidavit, the witness does not require a draft to be submitted, but makes a general refusal to testify. Fisk V. Chicago etc. R. R. Co., 3 Abb. N. S. 430. Erie R. R. Co. v. Gould, 14 Abb. N. S. 279. It must appear that the person sought to be examined refused to make an affidavit of the facts which are within his knowledge. The affidavit must specify the nature of the motion, and must show that the affidavit or deposition is necessary thereon. Williams «. W. U. Tel. Co., 3 Civ. Pro 448. 182 Law of Evidence. The order for taking the examination of a witnees can be made only upon proof that the affidavit of the witness is necessary. Fiak V. Chicago etc. R. R. Co., 3 Abb. N. 8. 430. Refusal to Make Affidavit. Where a person is requested on several successive days to make an affidavit and he declines until he can consult counsel, this is sufficient refusal. Rogers v. Durant, 3 T. & C. 676. After a party has made a voluntary affidavit, semile, no order should be made for his oral examination or for a commission. Ryers i>. Hedges, 1 Hill, 646. Notice. No notice of obtaining the order need be given to the ad- verse party in the action ; he is not entitled to take part in the examination. Erie R. R. Co. ■». Champlain, 85 How. Pr. 73. It was held otherwise in Brooks V. Schultz, 3 Abb. N. S. 124. Order. The granting of an order for this purpose is in the dis- cretion of the court. Dauchy ». Miller, 16 Abb. N. 8. 100 An order is not a matter of right, but the court will de- termine as to the propriety of the examination upon the circumstances of the case. Hudson River etc. R. R. Co. v. Kay, 14 Abb. N. S. 192. Vacation of Order. When a person appears before a referee and is partially examined without objection, it is then too late for him to move to vacate the order appointing the referee on the ground that he had not refused to make his deposition. Erie R. R. Co. u. Champlain, 35 How. Pr. 74. McCue 9, Tribune Asso., 1 Hun, 469. Code Civ. Pro., § 885. 183 After a witness has refused to make an affidavit and an order for Ms examination has been made, he is not entitled to have the order vacated by subsequently tendering an affidavit, but if the affidavit is full and frank the court may vacate the order. Pisk V. Chicago etc. R. R. Co., 3 Abb. N. S. 430. Objection to the contents of the affidavit or to the mode of procuring it must be made when the affidavit is sought to be used. McCue V. Tribune Asso. , 1 Hun, 469. The order should not be set aside, on motion of the ad- verse party, for irregularity, unless he shows that he is injured by the irregularity. Ramsey v. Erie R. R. Co., 8 Abb. N. S. 188. The fact that a party is in contempt for disobeying an order requiring him to appear before a referee and make an affidavit, does not prevent him from moving to vacate that order because of its irregularity. Spratt V. Huntington, 3 Hun, 341. The Examination. Under the former provision of the Code of Procedure it was not intended to authorize an examination of a witness upon the general merits of a controversy. Dauchy v. Miller, 16 Abb. N. S. 100. A fishing excursion will not be allowed. Fisk V. Chicago etc. R. R. Co., 3 Abb, N. S. 430. Erie R. R. Co, i>. Gould, 14 Abb. N. S. 279. No examination of books and papers are allowable under this provision. Fisk V. Chicago etc. R. R. Co., 8 Abb. N. S. 430. The deposition of a party, made in another cause, may be received when its genuineness is proved, and it is shown that he has refused to make an affidavit for the purpose of the motion. James v. Richardson, 89 Hun, 400. A person, attending before a referee to make a deposition 184 Law op Evidence. to be used in a proceeding pending in a Surrogate's court, to which he is not a party, has no right to the assistance of counsel. Reynolds v. Parker, 3 Dem. 399. Nor can he be cross-examined by counsel for a party opposed to those at whose instance the examination has been ordered, even where, by direction of the court, he has received notice of the time when such examination would be had. Camp ». Praser, 4 Dem. 213. The witness may be punished as for contempt, for re- fusing to answer all proper questions. Clark c. Brooks, 26 How. Pr. 254. The refusal of a party to be examined is not alone a suffi- cient ground for deciding the motion against him . Meyer ®. Lent, 7 Abb. 335. §:886. Where Witness may be Compelled to Attend. Where a person to be examined, as prescribed in this article, is a resident of the State, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. Where he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs. Taken from the last sentence of § 391 of the Code of Procedure, which read as follows : "But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance." Under the Code of Procedure the person could be required to attend in the county where the summons was Code Civ. Peo., § 886. 185 issued, and served, although the party be a non-resident, only temporarily there. Todd ». Lambden, 10 Abb. N. S. 383 This provision is peremptory, and will be enforced by the courts. Marsh v. Woolsey, 14 Hun, 1. The examination must be had in the county where the party either resides, or has on office for the regular trans- action of business in person. Hesse v. Briggs, 45 Super. Ct. 417. The fact that the action is brought and is to be tried in such other county, does not authorize the court to require him to go out of the county of his residence. Gustaf V. Am. St. Co., 31 Hun, 95. A party cannot be examined before trial in any other county than that in which he resides, and without he be paid his witness fees. Shelton v. Smith, 1 Law Bull. 35. 186 Law of Evid'enoe. TITLE IIL ARTICLE 2. DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE. §887. Where Commission to Issue. In a case specified in the next section, 'where it appears by affidavit, on the application of either party, that the testimony of one or more witnesses, 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 wit- nesses named therein, under oath, upon the interrogatories annexed to the commission, to take and certify the deposi- tion of each witness, and to return the same and the com- mission, according to the directions given in or with the commission. The applicant, or any other party to the action, may be thus examined. Taken from the laws of 1862, chap. 375. It was amended in 1879 by striking out the words, " or of an adverse party, or of a co-plaintiff or co-defendant" after the words, "testimony of one or more witnesses," and by adding the last sentence. Since the amendment of this section (in 1879), power to issue a commission to examine a party has existed. Clark V. Candee, 29 Hun, 139. A commission may issue to take the testimony of a wit- ness residing out of the state, though his domicile is here Pooler V. Maples, 1 Wend. 65. Code Civ. Pro., § 887. 187 _ The names of the witnesses must be given in the commis- sion, if they can be ascertained by any reasonable diligence. Wright, V. Jessup, 3 Duer, 643. The examination of the clerks of the opposite party, whose names are unknown, may be had on a general com- mission. Shaffer ». Wilcox, 2 Hall, 503. In a special case, a commission may be issued for the examination of such witnesses as shall be produced, though their names be not inserted in the commission. McMahon v. Allen, 18 Abb. 293. A rule for a commission will not be granted where it appears that the witnesses cannot testify to anything material, and there is a doubt as to whether the application is made in good faith. Ablon V. Barbey, 1 N. Y. Leg. Obs. 154. An affidavit for a commission is sufficient if it show the witness to be material as advised, and that he is out of the jurisdiction. Brackett ». Dudley, 1 Cow. 309. The affidavit is not defective because it does not show the nature of the testimony which can be given by the proposed vidtness. In re Voorhis, 5 Civ. Pro. 444. It is not necessary to specify the facts and circumstances which show that the examination of the witness is material and necessary. In re Voorhis, 5 Civ. Pro. 444. It is not necessary to set forth facts, and circumstances, calculated to satisfy the court of the materiality of the vsdtness sought to be examined. General Rule of Practice, No. 83, does not apply to such an affidavit. Cadmus «. Oakley, 3 Dem. 398. Nor is it required to state what he expects or intends to prove by the witnesses. Bank of Commerce «. Michel, 1 Sandf. 687. Eaton V. North, 7 Barb. 631. Although the application should not be denied, because the moving affidavit fails to set forth facts and circum- 188 Law op Evidence. stances calculated to satisfy the court of the materiality of the witness sought to be examined, yet, where an opposing party makes it appear that material testimony could not probably be elicited upon the examination, the applicant must disclose what facts he expects to prove. Henry v. Henry, 4 Dam. 353. The attorney may swear to the materiality of the witness. Beall x>. Day, 7 Wend. 513. The affidavit may be made by the party's agent or attor- ney in fact, but an adequate excuse must show for its not being made by the party. Murray «. Kirkpatrick, 1 Cow. 210. Deshay v. Persse, 9 Abb. 289, note. Johnson v. Lynch, 15 How. Pr. 199, It may also be made by a third person not a party to the suit. Demar «. Van Zandt, 3 Johns. Cas. 69. Unless a party has an express direction inserted in the commission to the contrary, any one of the commissioners to whom it is directed may execute it. O'Brien v. Com, F. Ins. Co., 41 Super. Ct. 334. If it should appear that the execution of the commission by only one of the commissioners was the result of a scheme to deprive any party or parties of an opportunity to attend upon the examination of the witness, or to have their interests cared for and their rights protected in regard to such examination, or it was the result of a scheme to abuse or prevent the process of the court in any way against justice and right, then the authority of the court should be invoked, and should be exercised to suppress the com- mission after its return. O'Brien v. Com. F. Ins. Co., 41 Super. Ct. 334. §888. Where Commission to Issue. Such a commission may be issued in either of the fol- lowing cases : Code Civ. Pko., § 888. 189 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 dam- ages 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 judg- ment 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 defense of the action, if a new trial is granted. 4. Where the application is made before the joinder of 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 com- mission 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 defense thereof. This provision is based upon that part of the laws of 1862, chap. 375, which reads as follows : " Whenever a default shall have been taken for want of any appearance or answer, or other pleading in any action, and in any proceeding pending in any court of record, and whenever any issue of fact shall have been joined in any such action or proceeding. " The power to issue a commission is an innovation upon the common law and must be strictly pursued. Dwinelle v. Howland, 1 Abb. 87. Creamer v. Jackson, 4 Abb. 413. The power of the court to award a commission without the consent of parties, to take the testimony of a witness out of the state, depends entirely on the statute, and can only be exercised in the cases therein specified. Wood V. Howard Ins. Co., 18 Wend. 646. In re Whitney, 4 Hill, 533. McColl V. Sun Mut, Ins. Co., 50 K. Y. 832. In re Attorney, 83 N. Y. 164, Champlin v. Stodart, 64 How. Pr. 378. Paddock z>. Kirkham, 2 N. Y. Stale R. 555. 190 Law of Evidence. The provisions of the Code of Civil Procedure in reference to taking depositions out of the state (§§ 887 et seq.) relate to actions only. Iq re Attorney, 83 N. Y. 164. Champlin v. Stodarl, 64 How. Pr. 378. The right to a commission is given in all actions with an issue. Paddock v. Kirkham, 38 Hun, 376. As, where a claim against the estate of a deceased person is referred under the statute, the supreme court has jjower to direct that a commission issue to take the testimony of a non-resident witness. Paddock v. Kirkham, 38 Hun, 376. Under the former practice it was held that a commission was not authorized unless an issue of fact was joined, and was depending when the application was made and the right to the trial of the issue appears upon the record. McColl V. Sun Mut. Ins. Co., 50 N. Y. 332. But under this section a commission may be issued in an action where no issue of fact has been joined, but that can only be done in certain specified cases, as mentioned in subdivisions 1, 2 and 4 of this section. Stubbs v. Ripley, 39 Hun, 635. When issue is joined as to one of several defendants, a commission may be issued to take testimony out of the state, although issue is not joined as to all the defendants. Treadwell v. Pomeroy, 2 T. & C. 470. The reference of a question of fact arising upon a motion does not clearly appear to be such a reference as to entitle either party to examine witnesses on commission under sections 888, 893 and 894 of the Code of Civil Procedure. Stubbs V. Ripley, 39 Hun, 625. A commission cannot be issued in aid of a motion. Heulin u. Ridner, 6 Abb. 19. Stake ». Andre, 18 How. Pr. 159. Nor where a matter has been referred under a special Code Civ. Pko., § 888. 191 statute, unless the statute provides for the same proceedings as in an action. Wood V. Howard Ins. Co., 18 Wend. 646. Paddock v. Kirkham, 103 N. Y. 600, The aid of these provisions cannot be invoked in proceed- ings to disbar an attorney. In re Attorney, 88 N. Y. 164. In an action of interpleader the court should not order that the testimony to be taken under the commission may be used upon the trial of any issues which the court may direct to be tried as between the defendants, as there is no issue between them. Kemp V. Dickinson, 23 Hun, 593. It cannot be issued in a special proceeding, as supple- mentary proceedings, to take the testimony of a foreign witness in such proceedings. Champlin v. Stodart, 64 How. Pr. 378. A commission cannot be granted in aid of supplementary proceedings. Graliam v. Colbiirn, 6 Duer, 678. Morrell «. Hoey, 15 Abb. 430. § 889. How AND Upon what Teems Gbakted. In a case specified in subdivision third of the last section, if the appeal has been taken to another court, the applica- tion must be 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 192 Law op Evidence. 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 tlie 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. Laws of 1862, chap. 375, § 1, and 2 R. S. 393, §§ 11 and 12 remodeled. A commission will not be granted when the person to be examined is a fugitive from justice and cannot come into this state for that reason. McMonagle ■b. Conkey, 14 Hun, 326. A commission may be issued to take the testimony of one committed to a lunatic asylum in another state on the ground of insanity. Hand v Burrows, 23 Hun, 330. Where the plaintiff's attorney offers to produce plaintiff on the trial before the case is called, it dispenses with the necessity of issuing a commission for his examination on the part of defendant. Nightengale i). Cont. L. Ins. Co., 3 Law Bull. 15. A commission will not be refused on the ground that the witnesses are interested ; that must be made to appear on the trial. Graves v. Delaplaine, 11 Johns. 200 A commission will not be granted after the commence- ment of a trial before a referee, where a party has been guilty of laches. Rathbun v. IngersoU, 34 Super. Ct. 311. It is not necessary that one who applies without laches should state what testimony he seeks further than the inter- rogatories show it. Walker -o. Spencer, 1 Law Bull. 45. The moving papers must show that the motion is made in the proper county. Dodge V. Rose, 1 Code R. 123. Code Civ. Pko., § 889. 193 A referee has no power to make the order. Rathbun v. IngersoU, 34 Super. Ct. 311. A commission to take testimony cannot be issued with- out an order of the court or judge, and cannot be issued by consent without an order. M. & H. Organ Co. ■». Pugaley, 19 Hun, 282. Tracy ». Suydam, 30 Barb. 110. The commission should be under the seal of the court. Tracy v. Suydam, 30 Barb. 110. Whitney ■». Wyncoop, 4 Abb. 370. Ford V. Williams, 24 N. Y. 359. M. & H. Organ Co. v. Pugsley, 19 Hun, 382. When a commission to take testimony is issued by stip- ulation, no seal is necessary, where the attorneys waive it. Churchill v. Carter, 15 Hun, 385. A stipulation to waive irregularities must be in writing. M. & H. Organ Co. ■». Pugsley, 19 Hun, 383. The granting of a commission to examine witnesses abroad rests in the sound discretion of the court. Vandervoort v. Col. Ins. Co., 3 Johns. Cas. 137. The commission is not a matter of strict right, and terms may be imposed if it be likely to produce great injury to the opposite party. Ring ». Mott, 2 Sandf . 683. A party cannot have a new commission for the re-exam- ination of the same witness, except on the suggestion of a mistake on the part of the witness, or the discovery of new facts to which he can testify. Raney v. Weed, 1 Barb. 220. A rule for a commission does not operate, per se, as a stay of the proceedings. Maynard v. Chapin, 7 Wend. 530. A commission, to examine a party in his own behalf, will not be allowed if the court has reason to believe the appli- cation is not made in good faith. Clark V. Candee, 29 Hun, 139. 13 194 Law op Evidence. _ Where doubt is cast upon the l)ona fides of the applica- tion, the commission will not be granted on the common affidavit. Rogers v. Rogers, 7 Wend. 514. It is necessary that legatees, who have intervened upon probate proceedings, under § 2617, but have not declared themselves either for or against the will, should receive notice of an application for a commission made by a party cited. Cadmus v. Oakley, 3 Dem. 299. See In re Voorhis, 5 Ciy. Pro. 444. §890. Okder made by Judge. Where the order is made by a judge out of court, it must be 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 subject to the control of the court. 3 R. 8., 393, §13. Where the commission is issued by the authority of the court, the signature of the judge is sufficient without the signature of the clerk. Goodyear b. Vosburgh, 41 How. Pr. 421. The neglect to file the order, will render a commission issued in pursuance of it irregular. Whitney v. Wyncoop, 4 Abb. 370. §891. Intereogatoeies; how Settled. Unless the interrogatories, to be annexed to the commis- sion, 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 Code Civ. Pro., § 891. 195 the action is triable, as prescribed in the general rules of practice. Taken from 2 E. S., 394, § 14, and as amended by chap. 420, of the laws of 1875. Where the interrogatories were settled, and allowed by a judge of another county than that in which the action was triable, it was held that he had no power to hear the appli- cation, and allow the commission, and that such deposition was properly rejected. Erwin ». Voorhees, 26 Barb. 137. § 892. Id.; to be Annexed; Dibections for Return. The interrogatories when settled must be annexed to the commission. Either party must be allowed to insert therein any question, pertinent to the issue, which he proposes. Unless the parties stipulate in writing, or the order grant- ing the commission prescribes how it shall be returned, the judge must indorse upon the commission the proper direc- tion 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. 3 R. 8., 394, § 15. The judge should if required look into the interrogatories propounded to see if they are proper, and should disallow or modify questions which would not be admissible at the trial. McDonald v. Garrison, 9 Abb. 178. Blaisdell v. Raymond, 9 Abb. 178, n. It seems that while a judge, in settling interrogatories to be annexed to a commission bo take testimony, is required to allow, "any question pertinent to the issue," he has authority to disallow questions not pertinent, and hence to determine whether a question is pertinent or not. Uline V. N. Y. C. & H. R. R. Co., 79 N. Y. 175. The judge in such case has not the discretion which the 196 Law op Evidence. court has on trial, as to the extent to which he will permit a cross-examination for the purpose of merely testing the credit of the witness, and upon matters collateral to the main issue he must insert all pertinent questions. Uline «. N. Y. C. & H. R. R. Co. 79 N. Y. 175. An objection to a question as leading must be made on the settlement of the interrogatories, or it is waived. Hazlewood v. Heminway, 3 T. & C. 787. Cope V. Sibley, 13 Barb. 531. When objections are urged upon the settlement, they should be left to the justice at the trial, and will be settled subject to all legal objections and exceptions upon the trial. Gelpcke v. Quentell, 1 Law Bull. 1. The words, "pertinent to the issue" and the words of the Revised Statutes, "pertinent to the cause," have the same meaning. Uline V. N. Y. C. & H. E. R. Co., 79 N. Y. 180. If the order of the judge disallows a pertinent question, it affects a substantial right, and is therefore appealable. Uline z/. N. Y. C. & H. R. R. Co., id. The order or direction for its return by mail, must be made by the officer settling the interrogatories. Richardson v. Gere, 31 Wend. 156. The direction, as to the manner of returning a commis- sion, must be signed by the officer settling the interroga- tories, otherwise it cannot be read in evidence. Crawford v. Loper, 35 Barb. 449. The court has no power to order a draft, upon which the action is brought, to be annexed to a commission issued to take the examination of defendant's witnesses residing out of the State. Butler V. Lee, 19 How. Pr. 383. Where the officer's direction was endorsed on the inter- rogatories, annexed, instead of on the commission itself, it is sufiicient. Hurd V. Pendrigh, 2 Hill, 502. Hall v. Barton, 25 Barb. 278. McCleary v. Edwards, 37 Barb. 241. Code Civ. Pro., § 893. 197 § 893. Commission to Examine Wholly oe Partly upon Oral Questions. Where an issue of fact, joined in an action, is pending in the supreme court, a superior city court, the marine court of the city of New York, or a county court, the parties may stipulate in writing, or 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 ques- tions, 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, des- ignated in the order, upon written interrogatories. New. The latter part of the section was amended in 1877. The provisions of this section are made applicable to sur- rogates' courts by section 2538, of the Code of Civil Pro- cedure. Bull V. Kendrick, 4 Dem. 331. It has been held that an order, granting a commission to take testimony abroad, may be had upon condition that the applicant consent that the witnesses be also examined and cross-examined. Clayton v. Yarrington, 16 Abb. 373, note. Anderson v. West, 9 Abb. N. S. 209. It is in the discretion of the court to grant the oppor- tunity for oral cross-examination of the witness on the oral commission. Bull ». Kendrick, 4 Dem. 331. 198 Law of Evidence. §894. When Open Commission may Issue, oe Depositions may be taken. Where an issue of fact, joined in an action, is pending in either of the courts specified in the last section, the parties may stipulate in writing, or the court, or a Judge thereof, or, in the supreme court, the county judge of the county where the action is triable may, in its or his dis- cretion, upon the application of either party, and upon satisfactory proof by affidavit that one or more witnesses, not within the State, are material and necessary in the prosecution or defense 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 pre- scribed in the following sections of this article. New. The latter part of the section was amended in 1877. An order, granting an open commission to examine orally unknown and unnamed witnesses, involves a substantial right, and so is appealable to the General Term, and a refusal to entertain such an appeal in that court is error. Jenniaon v. Citizen's 8. Bank, 85 N. Y. 546. But the granting or refusing such an order involves a matter of discretion, and therefore is not appealable to the Court of Appeals. Anonymus, 69 N. Y. 313. Under this section, the granting of an open commission rests largely in the discretion of the judge, and his decision should not be disturbed on appeal, unless it clearly appears that such discretion was unwisely exercised. Jones 1). Hoyt, 10 Abb. N. C. 337. Open commissions, not being favored, will not be issued, unless it clearly appears that the purposes of justice re- quire a departure from the usual remedies. Henry «. Mead, 4 Law Bull. 10. Code Civ. Peo., § 895. 199 §895. Depositions where an Adverse Party is an Infant OR Committee. The last two sections are not applicable, where the ad- verse party is an infant, or the committee of a person judicially declared to be incapable of managing his affairs by reason of lunacy, idiocy, or habitual drunkenness ; or where the testimony is to be taken elsewhere than in the United States or in Canada. Nor can the applicant be examined in his own behalf, as prescribed in those sections, except by consent of the parties. This is a new provision. It was amended in 1879 by the addition of the last sentence. The contestants of an alleged will of decedent, who died domiciled in the State of Illinois, having asked for an open commission to examine certain witnesses, there residing, in the probate proceedings to which infants, not next of kin to decedent, but who had an appearance of interest under the disputed instrument, were parties, it was held, that the latter must be deemed "adverse" parties and the request be denied. Bull V. Kendrick, 4 Dem. 330. An open commission, to examine witnesses in Florida, will not be granted, where it appears that the witness in question resides in Cuba, the papers not showing that such witnesses are present in the State of Florida, and no reason except the expense being given to show why it would be more difficult to examine the witnesses in New York City. , Purdy V. Webster, 9 Civ. Pro. 144. § 896. Notice of Examination upon Oral Questions. Where a commission is issued to take testimony without written interrogatories, as prescribed in section 893 or sec- tion 894 of this act, notice of the time and place of the examination of a witness by virtue thereof, naming the 200 Law op Evidence. witness, must be served, as prescribed in section 899 of this act. A new provision. § 897. Open Commission. An open commission must be directed to one or more persons, named therein, and must authorize them, or any one of them, to examine 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 exam- ined, and to return the same and the commission imme- diately after the expiration of the time limited for the production of witnesses, according to the directions given in or with the commission. New. § 898. « Oedee Dieecting Depositions to be Taken. An order, directing that depositions be taken, must spec- ify the time within which they must be taken, and the manner in which they must be returned. It may also con- tain 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 de- positions, returned, as prescribed in the following sections of this article. This is an amendment of § 4, of the laws of 1853, chap. 387. Code Civ. Pro., § 899. 201 § 899. Befobe whom Depositions mat be Taken ; Notice of Taking. A deposition may be taken, pursuant to sucli an order, before a person mutually agreed upon by the parties, or a chancellor, or a judge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the state or territory where the witness is, 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. Taken from the latter part of §§ 4 and 5, of the laws of 1853, chap. 387. Where the party appears before the commissioner, and omits to object that the notice of the examination was too short, it is too late to object afterwards. Jackson «. Kent, 7 Cow. 59. §900. How Depositions Taken. Upon the examination of a witness, without written in- terrogatories, 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 202 Law op Evidence. be taken down, as prescribed in the next section, the sub- stance 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 cer- tified copy of an order to take a deposition. New provision. § 901. Commission or Order to take Depositions ; how Exe- cuted AND Returned. The person, to whom a commission is directed, or before whom a deposition is taken, unless otherwise expressly directed in the commission, 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 exam- ined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respect- ing 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 disinter- ested 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, subscribed by the witness proving it, and numbered or otherwise identified in writing thereupon by the commissioner, or person taking the de- position, who must subscribe his name thereto. Code Civ. Pro., § 901. 203 4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the deposi- tion ; 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 addresed 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 ah 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. From 2 E. S. 394, § 16, and the laws of 1853, chap. 387, §§ 6, 7 and 8. Subdivision One. Under the former law, the depositions of witnesses would be received in evidence, although the oaths to the witnesses were not administered by the commissioners, if it appear that they were prohibited from administering them, and they were in fact administered by the local authorities. Lincoln v. Battelle, 6 "Wend. 476. Where it appears by the return of a commission that the witnesses have been sworn "to make true answers to the interrogatories read to them," instead of being sworn " to tell the truth, the whole truth, and nothing but the truth," as required by statute, the oatli administered is insufficient and the commission should not be received in evidence. Whitney v. Wyncoop, 4 Abb. 370. It need not appear by the return that the oath was pub- licly administered to the witness, as that will be presumed to have been regularly done. Williams v. Eldridge, 1 Hill, 249. 204 Law op Evidence. It will be intended that the oath to the witnesses was publicly administered when otherwise properly certified. Haleran v. Field, 33 Wend. 38. And such oath will be deemed to apply to the interroga- tories on both sides. Haleran v. Field, id. Sfbdivisiok" Two. Cross-interrogatories cannot be withdrawn unless by mutual consent. Udioh Bank v. Torrey, 3 Abb. 369. Where a commission is defectively executed the court may send it back for correction. Keeler v. Vanderpool, 1 Code E. N. 8. 389. The commissioners ought to certify that they examined the witness on oath upon the interrogatories annexed to the commission, and that they caused such examination to be reduced to writing, and to be signed by the witness. Bailis B. Cochran, 3 Johns. 417. See Bolte v. VanRoaten, 4 Johns. 130. Under the act of 1823 the parties and their counsel have the right to be present and cross-examine the witnesses on the execution of the commission. steer v. Steer, 1 Hopk. Ch. 362. On the execution of a commission the parties have a right to appear by counsel. Union Bank v. Torrey, 2 Abb. 269. The commissioners' fees are properly taxable, but not a solicitor' s who attends for either party. Dunham v. Sherman, 19 How. Pr. 672. An attorney can be punished for misconduct on the exe- cution of such a commission. In re Eldridge, 82 N. Y. 161. Code Civ. Peo., § 901. 205 Subdivision Tiieee. As to what is a sufScient identification of papers deposed to by a witness, see Biumskill v. JameB, 11 N. T. 294. If a party desire that a paper produced by the witness should be made an exhibit, he must specially require a copy to be annexed. Howard i>. Orient Mut. Ins. Co., 9 Bosw. 645. The original need not be attached. Com. Bank ». Union Bank, 11 N. Y. 203. Where an exhibit, proved before the commissioner, was a bill of sale, executed by J. M. and his wife, and the com- missioner certified that the same "was produced and shown to the said J. M., a witness sworn and examined, and by him deposed unto at the time of his examination as a witness under such commission," the certificate was sufficient.- Hall V. Barton, 25 Barb. 274. Letters which are merely identified before the commis- sioner are not to be considered as having been "produced and proved" as exhibits, and need not be annexed to the commission. Kelly V. Weber, 9 Abb. N. C. 62. Subdivision Four. Mere formal objections to the return of the commission will not in general be regarded at the trial. Burrill v. Watertown Bank & L. Co., 51 Barb. 105. Goodyear v. Vosburgh, 41 How. Pr. 421. Mere formal defects in the return to a commission which are wholly immaterial may be disregarded. Rust V. Eckler, 41 N. Y. 488. Where the commissioner signed his name on the margin of each sheet it is sufiicient, without signing it at the bottom. Burrill v. Watertown Bank & L. Co., 51 Barb. 105. 206 Law op Evidence. And where the given name is signed Williams instead of William it is wholly immaterial. Rust V. Eckler, 41 N. Y. 488. The signature of the commissioner will be judicially no- ticed, though his name be not written at length. Williams v. Eldridge, 1 Hill, 349. The jurat should be signed by the commissioners, with their names of office. Jackson ». Stiles, 3 Cai. 138. An exhibit proved under a commission should be annexed to the return ; but if it is a public document, it is sufficient to annex a copy. Jackson «. Shepard, 6 Cow. 444. Where the papers composing the return, are connected by wafers only, it is not an objection to the deposition being read. Williams v. Eldridge, 1 Hill, 249. It will be presumed that the commissioner who took the testimony closed and sealed the package himself. Williams v. Eldridge, id. Also, that he discharged his duty by doing all those things in the execution of the commission which he is not bound specificly to certify as done. Williams v. Eldridge, id. The return of a commissioner to take testimony need not be endorsed upon the commission itself, nor be upon the paper containing the depositions annexed, or any part thereof; if necessary, it may be upon a separate sheet and annexed. Pendall i>. Coon, 20 N. Y. 134. Over'g Fleming v. Hollenback, 7 Barb. 271. See Hall v. Barton, 25 Barb. 274. McCleary v. Edwards, 37 Barb. 230. Goodyear v. Vosburgh, 41 How. Pr. 431. Where the statute has been substantially complied with in the return, the deposition should not be excluded except Code Civ. Pro., § 901. 207 upon the clearest grounds of error, amounting t,o something more than a mere irregularity. Goodyear v. Vosburgh, 41 How. Pr. 421. Subdivision Five. The statute as to the return is directory and nob merely essential. Haleran v. Field, 23 Wend. 40. Hall V. Barton, 25 Barb. 374. Where there is a stipulation between the attorneys as to how the commission shall be returned it is sufficient, if it be returned in accordance with the terms of such stipulation. Goodyear v. Vosburgh, 41 How. Pr. 431. Notwithstanding there be nothing on the envelope, or elsewhere, showing that the commission was deposited as required by statute, or that it was returned by mail, it will be presumed that the commission was so deposited and returned. Hall V. Barton, 35 Barb. 374. So where it does not appear how the papers came to the proper office, the presumption is, that they came to it by due course of mail, and were opened by the proper officer, it being his duty to open them. Hall V. Barton, id. It is no objection to the return of a commission that it was delivered at the post-office to the attorney of one of the parties, who conveyed it to the clerk's office, there being no suspicion of abuse. Homer v. Martin, 6 Cow. 156. Subdivision Seven. A commission directed to two may be executed by any one of the commissioners, in the absence of any direction to the contrary, or any fraud in the execution. O'Brien v. Com. F. Ins. Co., 41 Super. Ct. 334. Where it is provided that if either of the commissioners 208 Law of Evidence. be absent, the examination may be taken before the other, one commissioner may proceed, in temporary absence of the other, though both were present when the commission was received, and there being no proof of abuse, unfairness or partiality. Leetch v. At. Mut. Ins. Co., 4 Daly, 518. The commissioners need not endorse on the envelope a certificate that they deposited the return in the post-office. Hall V. Barton, 25 Barb. 274. §902. Certificate of Executiok. The commissioner or other person, before whom one or more depositions are taken, must subscribe and annex to each deposition a certificate, substantially in the following form, the blanks being properly filled up : 'State' (or 'territory') 'of ,' ) 'County' (or 'parish') 'of ,' i '^*- ' I, , do certify that , the witness, per- sonally appeared before me on the day of , at — o' clock in the ■ noon, at the , in the ' State ' (or ' terri- tory ') ' 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 con- tained in the foregoing deposition, and did, in my presence, subscribe the same, and indorse 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 the behalf of the ." Laws of 1853, chap. 387, § 7. §903. Ceetificate, a Sufficient Return. The certificate, specified in the last section, is a sufficient return to a commission. Code Civ. Pro., § 903. 209 A new provision. Formerly, where the return showed that the witness was duly and publicly sworn, pursuant to the directions "here- unto annexed, and examined ' ' with a reference to the pro- visions of the Revised Statutes, which were annexed and constituted a part of the commission, the return was held sufficient. Goodyear v. Vosburgh, 41'How. Pr. 421. §904. Return By Agent. If the packet, specified in section 901 of this act, is deliv- ered 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 commissioner, or the person who took the deposition, and that it has not been opened or altered since he so received it. Taken from 2 R. S., 395, § 17. Where the commission is returned by an agent, his affi- davit, as prescribed by statute, is indispensable to its validity. Dwinelle ■c. Howland, 1 Abb., 87. § 905. If Agent is Sick ok Dead. If the agent is dead or, from sickness, or other casualty, 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 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 he believes that it has not been opened or altered since it 14 210 Law op Evidence. came from the hands of the commissioner, or the person who took the deposition. 2 E. S., 395, § 18. § 906. Filing Deposition, etc., so Returned. The clerk or judge, who receives and opens the packet, as prescrib^d in the last two sections, must indorse there- upon 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 afiidavit of the person who delivered it to him. This is an amendment of § 19 of 2 R. S., 395. § 907. The Same. If the packet is transmitted through the post-ofiice, the clerk, to whom it is addressed, must receive it from the post-oflB.ce, open it, indorse thereupon and sign a like note of the time of the receipt and opening thereof, and imme- diately file it in his oflice. Based upon § 20 of 2 R. S., 395. Where the place of trial of an action has been changed, the commission is not vitiated by being made returnable to the clerk of the county originally named in the complaint. Whitney v. Wyncoop, 4 Abb. 370. .§ 908. Commission, etc., by Consent. A commission may issue, or an order to take depositions may be made by consent, in a case where either may Code Civ. Pro., § 908. 211 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 in- dorse upon, or annex to it, or the order, the necessary di- rections for the execution and return thereof, according to the stipulation. This is a remodel of § 21 of 2 R. S., 395. If the commission is issued by consent, there must be an order on stipulation. M. & H. Organ Co. v, Pugsley, 19 Hun, 382. § 909. Wheke Return to be Kept ; Parties may Inspect it, ETC. A commission, or copy of an order to take depositions with the certificates, returns, depositions, and exhibits an- nexed thereto, 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. From 2 11. S., 395, §22. The privilege of the parties to stipulate as to where the return is to be kept, is new. § 910. When Depositiojsi may be Suppressed. Where it appears by affidavit that a deposition has been improperly or irregularly taken or returned, or that the 212 Law of Evidence. personal attendance of the witness upon the trial could have been procured with due diligence by a subpoena, 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. Laws of 1853, chap. 387, § 14, amended. The provisions of the Code, relative to the suppression of the commission, apply to Justices' courts. Denny v. Horton, 3 Civ. Pro. 255. If the witness be permitted to read his answer from a paper prepared by himself and his counsel, the deposition will be suppressed. Creamer ». Jackson, 4 Abb. 413. A witness should go before the examiner free to answer all interrogatories, and not with his deposition already pre- pared. Underbill ». Van Cortlandt, 3 Jobns. Cb. 339. It seems that it is a suflB.cient cause to suppress, on motion, a deposition, that the witness refused upon cross-examina- tion to answer questions which, under certain aspects of the case, might become material and pertinent upon the trial. Palmer v. Great Western Ins. Co., 47 Super. Ct. 455. If the commission is not addressed, and returned to the person named in the order, it is irregular, and wUl be sup- pressed on motion. In re Drexel, 1 Law Bull. 6. The deposition of a witness, taken out of the State, may be read, although the witness be in court, where no motion has been made to suppress the deposition. Hedges v. Williams, SB Hun, 546. Where it appears that the defendant was not in this State at the time his deposition was taken, and read in evidence on the trial before the referee, if he afterwards Code Civ. Peo., § 910. 213 returns here, it will not justify its suppression. The remedy- is to secure his attendance personally for further cross- examination. Kamer v. Myleus, 1 Law Bull. 18. The bare fact of the receipt (by a witness to be examined under a commission) of copies both of the interrogatories and cross-interrogatories, prior to his exaaiinafcion, is not a sufficient ground for the entire suppression of the deposi- tion, where no prejudice is shown to have accrued to the defendant thereon. Butler V. Flanders, 56 How. Pr. 313. The deposition can only be suppressed by special motion. Hedges v. Williams, 33 Hun, 546. Consent to the issuing of a second commission to exam- ine the same witness, is not a suppression of the first. There must be an order for suppression. Becker v. Winne, 7 Hun, 458. Irregularities in the return of a commission should be taken advantage of on motion, before trial, when there is abundant time. Becker v. Winne, 7 Hun, 458. It is too late to make a motion for suppression on the day of the trial, or after the trial has begun. Denny v. Horton, 3 Civ. Pro. 255. But it is obligatory upon the party to make a motion to suppress a deposition only when he has knowledge of the irregularity in the issuing or execution of the commission a sufficient time before the trial to enable him to make a motion to suppress the deposition. M. & H. Organ Co. v. Pugsley, 19 Hun, 283. An objection, that a commission was not executed by the person intended, should be raised by motion to suppress, where the party has an opportunity so to do ; if not so raised, it will be deemed to have been waived. It cannot be raised upon the trial, where the party had knowledge of the fact a suflicient time before the trial to enable him to make the motion. Newton v. Porter, 69 N. Y. 133. 214 Law of Evidence. To avail of mere formal objections to the return of a commission, the party objecting should move the court, before the trial, to suppress the deposition. Burrill v. W. Bank & L. Co., 51 Barb. 115. Union Bank «. Torrey, 3 Abb. 269. An objection, that some of the interrogatories are not fully answered, must be made as soon as discovered, on a motion to suppress. Vilmar v. Schall, 35 Super. Ct. 67. It has been held, that in such case the proper remedy was not to suppress the deposition, but to send it back for cor- rection, or to issue a new commission. Denny v. Lourie, 3 Law Bull. 40. "Where the execution of the commission is defective, the remedy is by motion, in advance of the trial, either to have the execution of the commission corrected, etc. , or to sup- press the deposition. Gates V. Beecher, 3 T. & C. 404. Wright «. Cabot, 89 N. Y. 571. Not having taken that remedy, parties must be held to have assented to tlie mode in which the commission was executed. Wright V. Cabot, 89 N. Y. 577. Sturm V. At. Mut. Ins. Co., 63 N. Y. 87. Zellweger ti. Caffe, 5 Duer, 87. Sheldon v. Wood, 3 Bosw. 367. A motion at the trial to suppress the whole of a deposi- tion, on the ground that some of the interrogatories and parts of the deposition are improper, should be denied. The objection should be confined to those parts which are not competent. Com, B'k -0. Union B'k, 11 N. Y. 303. It must be a motion going to the regularity of the execu- tion of the commission, not to the admissibility of the evidence, or the court will not entertain a motion to sup- press. Howard u. Orient Mut. Ins. Co., 9 Bosw. 645. The deposition may, in the discretion of the court, be suppressed on motion in advance of the trial. Hewlett V. Wood, 67 N. Y. 394. Code Civ. Pko., § 911. 215 §911. Depositiom", Etc., Evidence. A deposition, taken and returned as prescribed in this article, or an exemplified copy thereof, if the original is filed in another county, may, unless it is suppressed as pre- scribed 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 rele- vancy, 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. Laws of 1853, chapter 387, section 13, and 2 R. S. 396, section 23, amended. A party who has procured the testimony or a witness residing abroad, under a commission, may read the deposition on the trial, although the witness be in court. He is not bound to call the witness, but he may be called and examined by the other side. Phenix v. Baldwin, 14 Wend. 62. The commission must be actually filed in the clerk's ofla.ce, before the deposition, taken under it, can be read in evidence. Jackson v. Hobby, 20 Johns. 358. Parties may, however, provide otherwise by stipulation, or the court may direct in what clerk's ofllce it shall be filed. Section 909, (Jode of Civil Procedure. A deposition of a witness which he refuses to sign, may be allowed to be read in evidence. Clarke v. Sawyer, 3 Sandf. Cli. 352. Where one of the witnesses examined, has refused to answer a material interrogatory, the whole deposition may be rejected. Smith. V. Griffith, 3 Hill, 333. 216 Law of Evidence. An answer not responsive to the interrogatory, may be excluded on the objection of either party. Lansing v. Coley, 13 Abb. 373. An answer not responsive to a cross-interrogatory, must be excluded. Railway P. Ass. Co, ». Warner, 1 T. & C. 31. Testimony, otherwise competent, taken upon commission, is not to be rejected, because not responsive to the interrogatory. Fassin ». Hubbard, 55 N. Y. 465. The testimony will be stricken out on the trial, if it is evasive, irresponsive or untruthful, or the witness has not fully and fairly answered the cross-interrogatories. Terry v. McNeil, 58 Barb. 341. A deposition will not be excluded because an answer to a cross-interrogatory is not full. If such answer is not clearly evasive, it can be remedied only by obtaining a re- execution of the commission. Baker v. Spencer, 47 N. Y. 563. Where the witness, in his answer, states his opinions, inferences or conclusions, from facts or circumstances, or either, and not what he knows, the answer should be excluded. Heineman «. Heard, 3 Hun, 334. Where it does not appear that the last general cross- interrogatory was put to, and answered by the witness, the deposition cannot be read, unless the counsel of the parties were present at the execution of the commission, and made no objection at the time. Kimball v. Davis, 19 Wend. 437. Brown s. Kimball, 35 Wend. 359. The judge should not go behind the commission and require proof that it issued regularly. Halleran v. Field, 33 Wend. 40. If he allows an improper question, there is no right of appeal, as such allowance does no stubstantial harm, the Code Civ. Pro., § 911. 217 party objecting to the question being able to protect him- self at the trial, by objections so made. Uline V. N. Y. C. & H. R. R. Co., 79 N. Y. 175. If a direct interrogatory and the answer of the witness to it are properly excluded by the court, cross-interrogato- ries and answers thereto, which are dependent upon the direct iterrogatory, should also be excluded. Fleming v. Hollenback, 7 Barb. 271. An objection to the competency of a witness whose deposition is offered in evidence, is to be determined by the law as it stands at the time of the trial, not by the law as it was when the deposition was taken. Fielden «. Lahens, 6 Abb. N. S. 341. If there is any defect in the execution of the deposition, it should be specifically pointed out. Champney v. Blanchard, 39 N. Y. 111. Valton V. Nat. F. L. Ass. Soc, 20 N. Y. 32. To render available an exception to the admission of a deposition, on the ground that the witness has not answered one of several questions included in a single interrogatory, the particular question, alleged, must be specificly pointed out. Valton «. Nat. F. L. Asa. Soc, 20 N. Y. 32. The objection that an interrogatory is leading may be made upon the trial, when the answer of the witness is proposed to be read in evidence. Fleming v. Hollenback, 7 Barb. 271. The question, whether the interrogatories and the answers thereto are leading and admissible, is one addressed to the discretion of the court. Cope V. Sibley, 12 Barb. 521. When the interrogatories are annexed under a stipulation expressly, " saving all legal exceptions," objections to the answers of the witness, to leading questions, may be made, when such answer is proposed to be read in evidence. Williams v. Eldridge, 1 Hill, 249. 218 Law op Evidence. Where, before any trials in an action, the testimony of a witness was taken by consent, under a stipulation that such ' ' testimony may be read on the trial of the above entitled actions, subject to objections as aforesaid," and to other legal objections, and that either party may use the testimony, subject to the said legal objections, in each of the actions on trial, and where at the first trial the witness was sworn and examined, and at the second, the justice refused to allow the deposition to be read in evidence, on the grounds that the party offering it was bound to prove the inability of the witness to attend on the trial, and that the stipulation applied to the first trial alone, it was held on appeal, that the rejection of the evidence was error. Hawkins v. Macy, 2 Hun, 668. The deposition must be read before the witness can be impeached, and when so read the impeaching testimony is not limited to the time when his deposition is taken. Dollner v. Lintz, 9 Daly, 17. Evidence of the declarations of a witness is inadmissible to contradict him until he has had a chance to explain them. This rule applies to witnesses examined by com- mission, as well as to others. Van Ness v. Bush, 14 Abb. 33. A party, at whose instance a commission was issued, may, after reading in evidence the direct interrogatories, and the answers thereto, read in evidence the cross-inter- rogatories and answers, even though the party by whom they were framed, may object to his so doing. Marshall v. Watertown St. Eng. Co., 10 Hun, 463. If the answers, which the party taking the deposition declines to read, are relevant, and competent, the other party may read them, or cause them to be read, and use them as evidence in his own favor. Gellally «. Lowery, 6 Bosw. 113. A deposition taken on commission issued at the instance of one party, may be read in evidence by the other party at the trial, although the former refuse to read it. Weber v. Kingsland, 8 Bosw. 415. Code Civ. Pro., § 911. 219 Where the pleadings are amended, but not so as to change the real issue, this does not render inadmissible a deposition previously taken. Vincent v. Conklin, 1 E. D. Smith, 203. §912. When Interrogatories and Deposition may be in a Foreign Language. Upon an application, made in the supreme court, a superior city court, the marine 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 understand the English 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 langage ; 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 language. 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 interroga- tories, 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 pur- pose, he may call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the applicant. 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. A new provision. Before this enactment, it was held, in certain cases, that the commissioner could act as interpreter. Leetch ®. At. Mut. Ins. Co., 4 Daly, 518. 220 Law of Evidence. §913. Letters Eogatoey. Letters rogatory may be issued from either of the courts 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 afiidavit, 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. New. Under the former law, it was held that, where it appears that there is no difficulty in executing a commission, letters rogatory will not be granted. Froude v. Proude, 1 Hun, 76. And that such commission is only proper where, on ac- count of the laws of the country, the evidence can be pro- duced in no other way. Anonymous, 59 N. Y. 313. The issuing of letters rogatory is a matter within the discretion of the court. Anonymous, 59 N. Y. 313. Unless it appears that a refusal would cause a miscar- riage of justice, an application for letters rogatory, under this section, should not be granted. Herrick e. Hope, 23 Dal. Reg. No. 93. Code Civ. Pro., § 914. 221 TITLE III. ARTICLE 3. DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE. §»14. In what Cases Deposition may be Taken. A party to an action, suit, or special proceeding, civil or criminal, pending in a court, without the state, either in the United States, or in a foreign country, may obtain, in the manner prescribed in this article, the testimony of a witness within the state, to be used in the action, suit, or special proceeding. This section was taken from 2 R. S. 397, § 29, as amended by the laws of 1867, chap. 68, § 1. The words "action or special proceeding" were inserted. Sections 914 to 920 provide for taking depositions, in this state, of witnesses, in civil and criminal proceedings, without the state. Perry ». People, 86 N. Y. 357. §915. Subpcena to Witness. Where a commission to take testimony, within the state, has 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 pur- 222 Law op Evidence. pose 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 obta it, into 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 subpoena to the witness, .commanding him to appear before the com- missioner named in the commission, or before a commis- sioner 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 subpoena, to testify in the action, suit or special proceeding. Taken from 2 R. S. 397, § 30, and part of § 31, as amended by the laws of 1867, chap. 68, § 1. " Summons" substituted for "subpoena." The issuing of a commission, or the giving of a notice, or the taking of any proceeding in foreign courts, for the pur- pose of taking the testimony of the witnesses, is the basis of the authority of the justice to issue a subpoena. In re Savin, 9 Civ. Pro. 176. § 916. Contents oe Subpcena. The place, where the witness is commanded to attend, must be within the county in which he resides or sojourns, or, if it is in another county, not more than forty miles distant from his residence, or the place of his sojourn. The remainder of ^ 31 of 2 R. S., 398, as amended by the laws of 1867, chap. 68, § 1. Code Civ. Pro., § 917. 223 § 917. SUBPOSNA, WHEW NO COMMISSION IS ISSUED. Where an action, suit, or special proceeding, is pending in a court of another state, or of a territory, or of the United States, and proof is made, by affidavit, to the satis- faction 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 wit- ness, 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 evi- dence on the trial or hearing. The judge must issue a subpoena commanding the wit- ness 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. This is a remodel of § 32, of 2 E. S. 398, as amended by the laws of 1877. This section refers only to the taking of testimony in actions, suits or special proceedings pending in the courts of another state, or of a territory, or of the United States. It does not apply to actions pending in courts of another country. In re Savin, 9 Civ. Pro.|176. §918. Justice oe the Peace may Subp(ena Witness. Where proof is made, by affidavit or otherwise, to the satisfaction of a justice of the peace : 1. That a civil action, suit or special proceeding is pend- ing in a court of another state, or of a territory, or of the United States. 224 Law op Evidence. 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 oVie applied for is required to be taken, is authorized to be received in evidence on the trial or hearing. The justice must issue a subpoena 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. This is an amendment of the laws of 1831, chap. 191, § 1. The word "subpoena" substituted for "summons." The words " or a territory, or of the United States ' ' were inserted by the Code of Civil Procedure. § 919. Taking and Retuen of Deposition. The officer, before whom a witness appears, in a case specified in this article, must take down his testimony in writing, 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. Based upon section 2 of the laws of 1831, chap. 191. § 930. Penalty fok not Appearing. A person who fails to appear, at the time and place specified in a subpcenaj issued as prescribed in this article, and duly served upon him, or to testify, or to subscribe to his deposition when correctly taken down, is liable to the penalties which would be incurred in a like case, if he was subpoenaed to attend the trial of an action in a justice's Code Civ. Pro., § 920. 235 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. Laws 1831, chap. 191, § 3, amended. Where the commitment for contempt, for refusing to be sworn, or to testify, is not tested by a judge, or the clerk of any court, but is simply signed, "J. T., the State of New York, " the commitment is void, and without authority. In re Bloomingdale, 1 Law Bull. 26. IS TITLE IV ARTICLE 1. DOCUMENTARY EVIDENCE AS A SUBSTITUTE FOR ORAL TESTIMONY. §931. Certain Official Ceetipicates, Evidence. Where the officer, to whom the legal custody of a paper belongs, certifies, under his 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. 2 R. S., 552, § 12. The certificate of the secretary of state, of a diligent ' examination in his office for the papers required to be tiled or deposited there, and that none were found, makes out, at least, prima facie, the absence of such papers. Cuyler «. Sanford, 8 Barb. 339. Where the certificate of a clerk of a county, as to the non-filing of a certificate, omits to state that diligent searcli Code Civ. Peo., § 921. 227 for it has been made in Ms office, as required by this sec- tion, it is defective. Briggs V. Waldron, 83 N. Y. 583. The certificate of a county clerk is admissible to prove the loss of a paper, but it is not the only competent evidence. Teall V. Van Wyck, 10 Barb. 376. § 93S. Ceetificate, etc., on File, Evidence. 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 exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is, declared or reg- ulated by special provision of law. This section is new, and supplies the place of numerous other like provisions. The report or certificate of an officer is evidence only of facts which, by law, he is required or authorized to certify. Board of Water Commissioners v. Lansing, 45 N. Y. 19. A certificate, made by statute evidence of certain facts, requires no proof of its genuineness, where, on its face, it appears to be regular. Thurman v. Cameron, 24 Wpnd. 87. The certificate of an officer, when, by law, evidence for others, is competent testimony for the officer himself, if he was, at the time of making it, competent to act officially in the matter to which it relates. McKnightD. JJewis, 5 3arl>. 681, 228 Law of Evidence. The sheriff's certificate of redemption is prvma facie evidence of the facts stated in it. Rice V. Davis, 7 Lans. 393. The ceriticate of the proper officers is prima facie evi- dence of election to a public office. People ex rel Judson v. Thatclier, 55 N. V. 525. The canvassers' certificate of election is not conclusive, but may be annulled and overthrown by the oral evidence of witnesses. People ex rel Stemmler ». McGuire, 2 Hun, 269. Afl'd, 60 N. T. 640. People ex rel Judson «. Thatclier, 55 N. Y. 525. It has been held, that the measurers of grain in New York, are not public officers, and that their returns were not evidence. Bissel ■». Campbell, 54 N. Y. 353. § 933. Notary's Cebtieicate, Evidence. The certificate of a notary public of the state, under his hand and seal of office, of the presentment by him for acceptance or payment, 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 bUl, 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 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. This section is from the laws of 1833, chap. 271, § 8, (3 E. S., 5th ed., 474) which is ameuded so as to make an affidavit Code Civ. Peo., § 923. 229 necessary to exclude the notary's certificate in addition to a verified answer. The words " of the state " are new. Even under the Revised Statutes, it was held, that this act applied to none other than notaries of this state. Bank of Rochester v. Gray, 2 Hill, 337. See Bank of Vergennes v. Cameron, 7 Barb. 148. Kirkland v. Wanzer, 2 Duer, 278. The act of 1833 did not apply to the case of the certificate of a notary, as to the presentment of a note made payable in another state. Dutchess Co. Bank v. Ibbotaon, 5 Den. 110. Kirkland «. Wanzer, 2 Duer, 278. Under the former law, the certificate of a notary, who would be disqualified from being a witness by reason of interest, was not evidence. Herkimer Co. Bank v. Cox, 31 Wend. 119. Bank v. Porter, 2 Watts, 141. Where the certificate of a notary is founded upon a pre- sentment and demand made by his clerk, or a third person, it is void. Gawtry v. Doane, 48 Barb. 148. AfE'd, 51 N. Y. 84. Onondaga Co. Bank v. Bates, 3 Hill, 53. See Cole v. Jessup, 10 N. T. 96. The presentment must be made by the notary himself. Warnick v. Crane. 4 Den. 460. The certificate of a notary, of demand of payment, and notice of protest of a note, is not evidence of the fact, when it is shown that he did not personally perform the service. Hunt «. Maybee, 7 N. T. 366. When Certificate Sufficient. The certificate of notice of protest may be received in evidence, although made and dated two years, or any other time, after protest and notice given. Cayuga Co. Bank v. Hunt, 3 Hill, 635. Where a certificate of the protest of a note, and the service of a notice thereof, has been made by a notary, and 230 Law of Etidence. the same has been lost, a second certificate may be given by the notary, and may be read in evidence with the same force and effect as the original. Kellam v. McKoon, 31 Hud, 519. A memorandum at the foot of a draft, made by a notary and signed with his initials, constitutes no part of the official certificate of the notary, and is not legal evidence of the service of notices of non-payment. Bank of Vergennes v. Cameron, 7 Barb. 143. Where the certificate states, that presentment and demand were made at the maturity of a bill, ' ' at the office of C, & S., the acceptors," this language imports that the office was their place of business, and it will be presumed, in favor of the notary, that the time in the day was proper. Burbank ti. Beach, 15 Barb. 326. The certificate imports a presentment of the bill during the proper hours of business. Cayuga Co. Bank v. Hunt, 2 Hill, 635. De Wolf V. Murray, 2 Sandf. 166. Where the certificate states that the notary went to the place of business of the acceptor of a bill to demand its payment, and found there the door closed, it will be in- tended that he took the bill with him, so he could demand its payment in the usual and proper form. Eoss V. Bedell, 5 Duer, 462. A certificate of protest, stating that service was made by leaving written notice at the indorser' s desk in the custom house, with a person in charge, he being absent, is admis- sible, and there being no specific objection, that this was not shown to be his place of business, and no proof that any better service could have been made, it is prima facie evidence of due protest. Bank of Commonwealth v. Mudgett, 44 N. T. 514. A notarial certificate of presentment, , protest for non- payment and notice thereof, is properly received as pre- sumptive evidence of the facts stated therein, where the defendant does not, by his answer, deny the fact of having received notice, but on the contrary he admits that he Code Civ. Pko., § 923. 231 received notice, though not until nearly a month after the note fell due. Union Bank «. Gregory, 46 Barb. 98. A notary's certificate is evidence only of the fact of pre- sentment, not of due diligence to excuse a presentment. Furniss b. Holland, 1 Edm. 470. Where the certificate sets forth the notice, protest thereof, and that due notice thereof has been served on the indors- ers, also the manner of service, it is •prima facie sufficient, without stating the contents of the notice. Seneca Co. Bank v. Neass, 3 N. T. 443. AfE'g, 5 Den. 339. A certificate of a notary, that he sent notice of protest to an indorser, directed to the reputed place of residence of such indorser, is presumptive evidence that such place is the reputed place of residence of the party. Bell «. Lent, 24 Wend. 230. The certificate is defective, unless it specify the post- office nearest to the reputed place of residence of the party to whom notice is given. Rogers «. Jackson, 19 Wend. 383. A certificate which states that notice of protest was served, by putting the same in the post-office, is sufficient, without expressly stating by whom the service was made. Ketchum v. Barber, 4 Hill, 324. A statement that the notice was deposited "in the letter- box in the post-office," is sufficient. First Nat. Bank t>. Church, 3 T. & C. 10. As to a construction of a notary's certificate of protest, see Borst c. Winckel, 14 Hun, 139. Where an affidavit is upon information and belief, and which denies the receipt of notice, this is not sufficient to prevent a notarial certificate from being presumptive evi- dence of the facts stated in it. Gawtry v. Doane, 51 N. Y. 84. Contra, Parker v. Cassidy, 16 Barb, 177. 232 Law op Evidence. An answer, verified in the usual form, cannot be treated as an affidavit within the meaning of this provision. Gawtry v. Doane, 51 N. Y. 84. Pierson v. Boyd, 3 Duer, 83. Lansing u. Coley, 13 Abb. 273. Where there is no affidavit accompaying an answer, showing want of notice of presentment and non-payment of the note, the notarial certificate of presentment and non-payment of the note is prima facie evidence of the truth of its contents. Dunn V. Devlin, 2 Daly, 132. Arnold v. Rock River R. R. Co., 5 Duer, 207. Young 0. Catlett, 6 Duer, 437. § 934. Notaet's Protest and Memorandum ; when Evidence. 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 ofiBcial seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of ac- ceptance, 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. This is a consolidation of §§ 46, 47, of 2 K. S., 283 and 284. The protest of a note, or memoranda of a deceased notary, is evidence of presentment and demand. Halliday «. Martinet, 20 Johns. 168. Hart V. Wilson, 3 Wend. 518, After a lapse of ten years, a written memorandum, made at the time of the transaction, respecting notice of protest, may be read in evidence. Hart V. Wilson, 2 Wend. 518. Code Civ. Pro., § 924. 233 The memoranda of a deceased notary, of the demand and notice of non-payment of a note, are prima facie evidence of the fact. Butler V. Wright, 2 Wend. 369. Entries and memoranda, made in the usual course of business by notaries, may be received in evidence after the death of the person who made them. Brewster v. Doane, 3 Hill, 537. Ocean Nat. Bank v. Carll, 9 Hun, 239. Though otherwise, if he is living. Brewster v. Doane, id. A memorandum of service of notice of protest, made by a cashier of a bank, he being dead, is admissible. Nichols v. Goldsmith, 7 Wend. 160. The protest and certificate of a deceased notary public, are presumptive evidence of the presentment of a note, and of non-payment, and notice to the indorser. McKnight v. Lewis, 5 Barb. 681. But see Otsego Co. Bank v. Warren, 18 Barb. 290. The statute, making the certificate of a deceased notary of the making of a demand of acceptance, or of payment, presumptive proof of such demand, applies only to such demand as is stated therein, and if the certificate specifies a demand which is not sufiicient in law, it will not avail the holder as evidence. Otsego Co. Bank v. Warren, 18 Barb. 290. The original entries, in the protest book of a deceased notary, are proper evidence to show demand and notice of non-payment. Nat. Butchers' Bank «. De Groot, 43 Super. Ct. 341. Where the word "maUed" appears in the memorandum of the ofiicial register of a deceased notary, it is consistent to presume that it means the placing of a letter in the post- office with postage prepaid, to be delivered under public authority. Nat. Butchers' Bank «. De Groot, id. 234 Law of Evidence. § 925. Proof op Presentment, Etc., of Foreign Bills. Proof of the presentment, for acceptance, or payment, 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 country where it was payable. This is an amendment of § 1, of the laws of 1865, chap. 309. If the statutes of another state, prescribe the form of the notarial certificate, or that it shall contain certain matters, and then, that a certificate, in such form, or containing such matters, shall be proof of presentment, refusal to pay, and notice to indorsers, such a certificate wUl be proof of such matters in this state. Lawson ». Pinckney, 40 Super. Ct. 187. Every intendment is to be in favor of the performance of duty by a notary, who certifies to thejprotest of a foreign bill of exchange for non-payment. McAndrew o. Radway, 34 N. T. 511. Where, by the laws of another state, notaries public are authorized to appoint one or more deputies to assist them in making protests, delivering notices, and to keep a record as to the manner in which they shall be made, the memo- randum of such deputy, who has since died, of a demand and protest, is competent evidence under this section. Passia v. Hubbard, 61 Barb. 548. Affl'd, 55 N. T. 465. § 936. Affidavit of Printer, Etc., Evidence. The affidavit of the printer or publisher of a newspaper, published within the state, or of his foreman or principal Code Civ. Pro., § 926. 235 clerk, showing the publication of a notice, or other advertise- ment, authorized or required by a law of the state to be pub- lished 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 pre- scribed by law. An amendment of the laws of 1835, chap. 159, § 1. An entry by a printer upon an account book of the pay- ment of a charge for printing, is not proof of an advertise- ment, under a mortgage sale for a length of time sufficient to make a valid foreclosure. Osburn «. Merwin, 50 How. Pr. 183. § 927. Id.; of Service of N'otioe. Where it is necessary, upon the trial of an action, to prove the service of a notice, an affidavit showing the service to have been made by the person making the affidavit, is presumptive evidence of the service, upon first proving that he is dead or insane, or that his personal attendance cannot be compelled with due diligence. Taken from the laws of 1858, chap. 244, § 1, which was amended by adding the last clause. § 928. Marriage Certificate, Evidence. An original certificate of a marriage, within the state made by the minister or magistrate by whom it was 236 Law of Evidence. solemnized; the original entry thereof, made pursuant to law, in the office of the clerk of a city, or a town, within the state, or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. Substantially the same as § 17 of 2 K. S. 141, from which it was taken. This section was amended in 1879, by substi- tuting twice, the word " entry "for " record." § 939. Book of Fobeign Corporation; When Evidence. Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may be used for that purpose, as presumptive evidence, vrhether any or all of the parties are or are not members of the corporation. This provision is a substitute for the Laws of 1863, chap. 206, part of § 1, as amended by the Laws of 1869, chap. 589. § 930. When a Copy Thereof is Evidence. If an original book is not produced at the trial, as pre- scribed in the last section, a copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with like effect, as the original book ; provided, that the party intending to use the copy gives the adverse party at least ten days, notice of his intention, specifying briefly the nature of the evidence proposed to be given. But this and the next section do not apply where the foreign corpo- ration is a party to the action, and seeks to prove its own act or transaction in its own behalf. An amendment of parts of §§ 1 and 2 of the Laws of 1863, chap. 206. Code Civ. Pro., § 931. 237 §931. How Copy to be Verified. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has exam- ined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct ; that he made it, or compared it with the original ; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation ; or that it was then acknowledged to him to be such by an officer or receiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledgment ; and he must specify where, and in whose custody, the original was then kept. Laws of 1863, chap. 206, part of § 1, amended. A copy of an account of defendant's firm, as it appeared in the ledger of a foreign corporation, no objection being made for want of jjroper verification, or proper notice, is properly admitted as presumptive evidence, under sections 929, 930 and 931 of the Code, of the account of work done by the firm for the corporation. Derham v. Lee, 60 How. Pr. 334. AfE'd, 87 N. Y. 599. 238 Law of Evidence. TITLE IV. ARTICLE 2. PROOF OP DOCUMENT, EXECUTED OR REMAEST- ma WITHIN THE STATE. §932. Statutes, Etc., How Peoved. A statute, or joint resolution, passed by the legislature of the state, may be read in evidence, from a newspaper, designated, as prescribed by law, to publish the same, until six months after the close of the session at which it was passed ; and, at any time, from a volume printed under the direction of the secretary of state. This provision was taken, substantially, from the Revised Statutes— 1 R. S., 184, §§8 and 12, ahd substituting "six" for "three" months, so as to provide for the delay in issuing the volume of the session laws. Upon an inquiry by what vote a law was passed, the printed volume of the laws is presumptively correct, and the original act on file in the secretary of state' s office is conclusive. People exrel. Purdy ». Com'rs of Higliways, 54 N. T. 276. People V. Devlin, 33 N. T. 269. § 933. Copies of Reoobds and Papers in Certain Offices, Presumptive Evidence. A copy of a paper tiled, kept, entered or recorded, pur- suant to law, in a public office of the state, the officer Code Civ. Pro., § 933. 239 having charge of which has, pursuant to law, an official seal ; or with the clerk of a court of the state ; or with the clerk or secretary of either house of the legislature, or of any other public body, or public board created by authority of a law of the state, and having, pursuant to law, a seal ; or a transcript from a record kept, pursuant to law, in such a public oflBce, or by such a clerk or secretary, is evi- dence, as if the original was produced. But to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court ; or by the officer having the custody of the original, or his deputy, or clerk, appointed pursuant to law, under his official seal, and the hand of the person certifying ; or by the presiding officer, secretary, or clerk of the public body or board, appointed pursuant to law, under his hand, and, except where it is certified by the clerk or secretary of either house of the legislature, under the official seal of the body, or board. This section is new in form, and embraces numerous special provisions. The words, "under his official seal, and the hand of the person certifying," were inserted by the amendment of 1879. Under the laws of 1864, chap. 811, 1872, chap. 680 (sec- tion 2703 of the Code of Civil Procedure) an exemplified copy of a will, proved in a foreign state, when recorded, is equivalent to proof of the will in this state. Bromley v. Miller, 3 T. & U. 575. Letters of administration, in due form, produced in evi- dence, are sufficient, prima facie, to establish a party's representative capacity. Belden z/. Meeker, 47 N. Y. 307. Where there is no law authorizing or requiring a paper to be filed in the office of the secretary of state, a copy thereof, certified under the seal of the secretary of state, is not admissible as primary evidence. Troy R. R. Co. t,. Kerr, 17 Barb. 581. The authority of the commissioner, under the act of April ^d, 1858, to certify to the existence of any patent, record, 240 Law op Evidence. or other document, is not confined to the original patent, record, or other document. A copy, certified by him, is admissible in evidence. Mackinnon v. Barnes, 66 Barb. 91. When the state engineer is required by the assembly to make a survey, and estimate of materials used in a certain construction, and report the same, a copy of such report to the assembly, certified by the clerk of the assembly, can- not be received by the state board of audit. Swift v. State of N. Y., 26 Hun, 508. Eeveraed, 89 N. Y. 56, on the gronnd that the certifi- cate in this case was not presumptive evidence. A copy of a report of a railway company, to the state engineer and surveyor, in accordance with the provisions of the statutes, duly certified by the deputy state engineer, is competent evidence of a material admission made therein by the defendant, as a corporation, with respect to an injury complained of. Leonard u N. Y. C. & H. R. R. Co., 44 Super. Ct. 575. Where a paper purported to be a decree in a divorce suit, and where, at the right of the impression of the seal, were the words, "Final. August 14, 1879," "A copy," " Hubert O. Thompson, clerk," the certificate is defective in form and substance. Fadner «. People, 19 W'k Dig. 433. To prove the contents of a chattel mortgage on the trial, the original mortgage must be produced. A certified copy, made by the clerk or register where the mortgage is filed, is evidence only of the fact of its filing. George e. Toll, 39 How. Pr. 497. See Sunderlin «. Wyman, 10 Hun, 498. And Phoenix Mills v. Miller. 4 N. Y. State R. 788. But a certified transcript from the register's office in New York county of a power of attorney, authorizing the conveyance of real estate, may be read in evidence. Lerche «. Brasher, 11 Civ. Pro. 430. A certified copy of an oath of office, required by law to be filed in the office of a county clerk, is evidence. P^voy ■v. The Mayor, 35 Barb. 364, Code Civ. Pro., § 934. 241 §934. Id. ; OF Papers Filed with Town Clerk. A copy of a paper filed, pursuant to law, in the ofiice of a town clerk, or a transcript from a record kept therein, pursuant to law, certified by the town clerk, is evidence, with like effect as the original. Substantially the same as IK. S., 350, § 16. The town clerk's minutes, of the proceedings of a town meeting, are conclusive. People ex rel Burr v. Zeyst, 23 N. Y. 140. Where papers are properly on file in the clerk's office as records, the signatures of the persons, by whom they are purported to be signed, are sufficiently proved by the pro- duction of such papers at the trial. Van Bergen v. Bradley, 36 N. Y. 318. The certificate of a town clerk, stating that certain per- sons were declared duly elected inspectors of elections, and that no others have been elected in their stead, and that no appointment of any others has been filed in his office, is not evidence for any purpose. People V. Cook, 14 Barb. 259. AfE'd, 8 N. Y. 67. A certified copy of a chattel mortgage is not admissible in evidence, until the existence and due execution of the orig inal is proved. Sunderlin v. Wyman, 10 Hun, 493. Fellows V. Hyring, 23 How. Pr. 230. Bissel ». Pearce, 28 N. Y. 252. Phcenix Mills v. Miller, 4 N. Y. State R. 788. But it is admissible as evidence of the date of filing. Sunderlin v. Wyman, 10 Hun, 493. Phcenix Mills v. Miller, 4 N. Y. State R. 788. The certificate of a town clerk is no evidence that the paper purporting to be a copy of a mortgage is a copy. The mortgage and its coi^tents must be proved by common law evidence. Bissel V. Pearce, 28 N. Y. 252. 16 242 Law of Evidence. § 933. Conveyance, When Acknowledged, oe Record, or Transcript op Record, Evidence. A conveyance, acknowledged or proved and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded within the state, or a transcript thereof, duly certified, is evidence with like effect as the original conveyance. This is similar to, and an amendment of § 16, and the first sentence of § 17 of 1 R. S., 759. A record of a conveyance, duly, recorded, or a transcript thereof, duly certified, is made original, and primary evidence, and may be introduced in evidence with the same effect as the original, and without ' proof of the loss or destruction of the latter. Clark V. Clark, 47 N. Y. 664. Clark -0. Nixon, 5 Hill, 86. An acknowledgment of a deed is not conclusive evidence that the signature is that of the party whose name is signed, but IS prima facie evidence of the fact. Hall V. Van Vranken, 38 Hun, 403. It is not necessary to render an instrument, properly acknowledged, admissible in evidence, that the acknowledg- ment or proof should be taken before the commencement of the action. It is sufiicient if the certificate of the officer be indorsed on the instrument, when it is offered in evidence. Sheldon v. Stryker, 42 Barb. 384. See Holbrook v. N. J. Zinc Co. , 57 N. Y. 616. Where an assignment of a lease does not describe the lease, except as "the within lease," the clerk who records it has authority to identify it by a memorandum, in the record referring to the place where the lease was recorded, and the record, or a certified copy thereof, is competent evidence. The reference to the .place where the "within lease ' ' is recorded, is as effectual as a new record of it. Putnam v. Stewart, 2 Civ. Pro. 172. Code Civ. Pro., § 936. 243 § 936. StrcH Evidence May be Rebutted. The certificate of the acknowledgment, or of the proof of a conveyance, or the record, or the transcript of the record of such a conveyance, is not conclusive, and it may be rebutted, and the effect thereof may be contested by a party affected thereby. If it appears that the proof was taken upon the oath of an interested or incompetent witness, the conveyance or the record, or transcript thereof, shall not be received in evidence until its execution is established by other competent proof. This is the remainder of § 17 of 1 R. S., 759. If there is a mistake in the name of a party in the acknowledgment of a deed, the certificate of acknowledg- ment is not conclusive, and the deed can be avoided. Eexford ®. Rexford, 7 Lans. 9. Contra Kerr v. Russell, 1 8 Am. Kep. 634. S. C, 69 111. 666. § 937. What Insteuments Mat be Acknowledged. Any instrument, except a promissory note, a bill of exchange, or a last will, may be acknowledged, or proved and certified, in the manner prescribed by law for taking and certifying the acknowledgement or proof of a convey- ance of real property, and, thereupon, it is evidence, as if it was a conveyance of real property. Based upon the laws of 1833, chap. 271, § 9. The acknowledgment of an assignment of, and power of attorney, may be made at any time before the paper is offered in evidence. Holbrook v. N. J. Zinc Co., 57 K. Y. 617. A bond of indemnity must have the certificate of the 244 Law of Evidence. county clerk of the county in which it was acknowledged, before it can be used in another county. Campbell ». Hoyt, 33 Barb. 555. § 938. Justice's Docket and Tkansceipt, Evidence befoke Him. The docket-book of a justice of the peace, within the state, or a transcript thereof, certified by him, is evidence before him, of any matter required by law to be entered by him therein. This section was taken from § 245 of the 2 E. S., 269. The words "before him of any matter required by law to be entered by him therein," substituted for the words, "thereof before such justice." To prove the judgment of a justice, in an action before himself, the mere production of the original docket, con- taining the proper entries, is enough ; no extrinsic evidence of its identity, or authenticity, being required. Smith V. Frost, 5 Hill, 431. Groof V. Griswold, 1 IJen. 433. Where a justice has just pronounced judgment, it is by contemplation of law before him on his docket, although not formally entered upon such docket. Colvln V. Corwin, 15 Wend. 557. A certificate of a justice's judgment, to be competent evi- dence on the trial of a cause, must show on its face that the justice rendering the judgment had jurisdiction, as well of the person as of the subject matter of the suit. Benn ». Borst, 5 Wend. 293. § 9:*9. Teanscript feom Justice's Docket, Evidence Gen- erally. A transcript from the docket-book of a justice of the peace, within the state, subscribed by him, and authenti- Code Civ. Pro., § 939. 345 cated by a certificate of the clerk of the county in which the justice resides, under his hand and official seal, to the effect that the person subscribing the transcript was, at the date of the judgment therein mentioned, a justice of the peace of that county, and that the clerk is acquainted with his handwriting, and verily believes that the signa- ture to the transcript is genuine, is evidence of any matter stated in the transcript, which is required by law to be entered by the justice in his docket-book. Sections 246 and 247 of the 2 R. S., 269, consolidated. The provision as to acquaintance with the handwriting of the justice is new. Where a transcript of a justice's judgment is filed in a county clerk' s office, and an entry of judgment thereon is made by the county clerk, it may be proved by an exem- plification. Tuttle V. Jackson, 6 Wend. 221. A transcript from a docket of a justice of the peace of the proceedings in a suit, in which the justice acquired jurisdiction of the cause, and of the person of the defend- ant, is conclusive evidence of the facts therein stated. Hard v. Shipman, 6 Barb. 631. § 940. Other Proof of Proceedings Before Justice. The proceedings in an action brought, or a special pro- ceeding instituted before a justice of the peace, within the state, may, also, be proved by the oath of the justice. In case of his death or absence, they may be proved by the original minutes of the proceedings kept by him, pursuant to law, accompanied with proof of his handwriting ; or by a copy of the minutes, sworn to, by a competent witness, as having been compared with the original entries, with proof that those entries were in the handwriting of the justice. 2 R. S. 270, § 248. A justice cannot establish a judgment recovered befor 246 Law op Evidence. him, by his parol testimony as to the proceedings had before him, without the production of his docket, as the judgment can only be proved by the production and verifi- cation of the docket itself. Boomer v. Laine, 10 Wend. 525. Pratt B. Peckham, 35 Barb. 195. Dorr ». City of Troy, 19 Hun, 223. A judgment may be proved, in the absence of the justice, by any person who has compared the copy witli the original entries, with proof that those entries are in the handwriting of the justice. Heermans v. Williams, 11 Wend. 638. He may prove the pleadings exhibited before him with- out producing his docket or a transcrij^ t. Brotherton v. Wright, 15 Wend. 237. §941. Ordinances, Etc., of Cities, Villages, Etc. An act, ordinance, resolution, by-law, rule or proceeding of the common council of a city, or of the board of trustees of an incorporated village, or of a board of supervisors, within the state, may be read in evidence, either from a copy thereof, certified by the city clerk, village clerk, clerk of the common council, or clerk of the board of super- visors ; or from a volume printed by authority of the com- mon council of the city, or the board of trustees of the village, or the board of supervisors. From the laws of 1832, chap. 158, §§ 1 and 2, laws of 1851, chap. 400, § 7, laws of 1870, chap. 291, § 16, and numerous other acts, relating to proof of ordinances, etc., of the different cities. The charter of the city of New York may be read as evi- dence from a volume printed by authority of the common council, whether it was printed prior, or subsequent, to the act of April 17th, 1832. Howell V. Ruggles, 5 N. Y. 444. Code Civ. Peo., § 941. 247 This act makes tlie ordinances, so read, prima facie evi- dence only. Howell w. Ruggles, 5 N. Y. 444. The statute makes no distinction in regard, to the pur- poses for which it may be read. Howell «. Ruggles, id. But the statute (laws of 1832, chap. 158) allowing ordi- nances of the city of New York to be read in evidence relates to their introduction upon a trial, and does not make them evidence on appeal. Porter u. Waring, 2 Abb. N. 0. 233. They can be proved only by a copy, certified by the clerk, under the seal of the city, or by reading it from the volume of the ordinances published by the common council. Logue D. Gillick, 1 E. D. Smith, 398. The minutes of the common council of Brooklyn, kept by the clerk, are proper and competent evidence to prove the adoption of an ordinance by that body. Kennedy v. Newman, 1 Sandf . 187. The minutes of the common council of Buffalo are admis- sible in evidence. Laws of 1877, chap. 257. 248 Law of Evidence. TITLE IV. AETICLE 3. PROOF OF A DOCUMENT REMAINING IN A COURT OR PUBLIC OFFICE OF THE UNITED STATES, OR EXECUTED OR REMAIN- ING WITHOUT THE STATE. §943. Peinted Copies of Laws of another State, etc. A printed copy of a statute, or other written law of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree, or ordinance, by the executive power thereof, contained in a book or publication, purporting, or proved to have been published by the authority thereof, or proved to be commonly admit- ted, as evidence of the existing law, in the judicial tribunals thereof, is presumptive evidence of the statute, law, proc- lamation, edict, decree, or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved, as a fact, by oral evidence. The books of reports of cases, adjudged in the courts thereof, must also be admitted, as presumptive evidence of the unwritten or common law thereof. Code Civ. Pro., § 942. 249 This section is substantially the same as section 426 of the Code of Procedure, as amended by the laws of 1869. This statute embraces Upper Canada, as well as Great Britain, and Ireland, and relates as well to provincial gov- ernments as to imperial. Lazier ». Westcott, 26 N. Y. 146. Before the Codes, it was not permitted to prove the written law of a foreign state by a printed book purporting to contain it. Packard v. Hill, 3 Wend. 411. See Hill d. Packard, 5 Wend. 375. Before the amendment of 1869, it was held that the statute law of another state could be proved by parol in the courts of this state ; but that the proper method was the produc- tion of the printed volume. Kenny v. Clarkson, 1 Johns. 386. Toulandou v. Lachenmeyer, 6 Abb. N. S. 215. And this is so under the Code of Civil Procedure. People v. Nyce, 34 Hun, 301. This section requires that a book be shown to contain the existing law. Hjnes V. McDermott, 7 Abb. N. C. 98. Where books are offered in evidence as the "printed statute book" of a sister state, they must purport to be printed under the authority of such state. Bright V. White, 8 Mo. R. 431. Where a book, purporting to be the statutes of Califor- nia, is sworn to as being the ofBcial publication of the statutes and constitution of such state, it is properly received in evidence. Pacific P. Gas Co. v. Wheelock, 80 N. T. 378. Although the printed statutes of another state are pre- sumptive evidence of the laws thereof, such evidence must be produced at the trial, and cannot be introduced in the appellate court. Hunt «. Johnson, 44 N. Y. 27. Lawson v. Pinckney, 40 Super. Ct. 188. 250 Law of Evidence. The court cannot take judicial notice of the law of another state. People V. Brady, 56 N. Y. 191. Monroe ti. Douglass, 5 N. Y. 447. Foreign laws are regarded as facts, and should be alleged and proved like other facts. Monroe ®. Douglass, 5 N. Y. 447. Throop «. Hatch, 3 Abb. 23. Hall D. Costello, 2 Am, R. 209. A charter of a private corporation, enacted by the legis- lature of another state, is a law within the meaning of this section. Persse Paper Works v. WlUett, 19 Abb. 416. On the trial of an indictment, charging forgery of the notes of a bank of another state or country, it is not neces- sary to prove, by direct evidence, the due incorporation of the bank. People V. D'Argencour, 95 N. Y. 629. The general law of a foreign state, or country, may be proved by parol, where it does not appear that such law exists as statute or written law, and of which an authenti- cated copy of the record might be produced. In re Robert's Will, 8 Paige, 446. The common law of a foreign country may be proved by respectable and intelligent witnesses. Hall «. Costello, 2 Am. R. 209. In the absence of proof, as to what is the law of another state, the courts will presume that the common law prevails there. Starr v. Peck, 1 Hill, 270. White V. Knapp, 47 Barb. 549. Bradley v. Mut. Ben. L. Ins. Co., 3 Lans. 341. Rev'd on other grounds, 45 N. Y. 422. Abell V. Douglass, 4 Den. 305. There is no presumption that the common law is in force in Russia. Such presumption applies only to England, and the states which have taken the common law from England. Savage «. O'Neil, 44 N. Y. 298. In the absence of proof as to the laws of foreign conn- Code Civ. Pro., § 942. 251 tries, our courts will presume that they are in accordance with our own. Monroe v. Douglass, 5 N. Y. 447. Holmes v. Broughton, 10 Wend. 75. Sherrill v. Hopkins, 1 Cow. 103. Cheney v. Arnold, 15 N. Y. 353. People V. Brady, 56 N. Y. 191. Robison «. Dauchy, 8 Barb. 31. McCraney v. Alden, 46 Barb. 373. Waterville M. Co. v. Brown', 9 How. Pr. 37. Cohen v. Kelly, 35 Super. Ct. 49. Contra, White 1). Knapp, 47 Barb. 549. Cutler V. Wright, 33 N. Y. 473. In a case where the defense was usury, it was held, that the presumption that a foreign law agrees with our own was not to be indulged in. Cutler ». Wright, 33 N. Y. 473. If the court has no means of information as to what the law of another state or country is, it will act upon its own laws. Stokes «. Macken, 63 Barb. 145. City Savings Bank v. Bidwell, 39 Barb. 335. Savage v. O'Neil, 44 N. Y. 398. The unconstitutionality of the law of another state is not conclusively established by reading a case from the reports of that state, holding it to be unconstitutional. People ». Nyce, 34 Hun, 300. §943. Copies of Records of United States Courts. A copy of the record, or any other proceeding of a court of the United States, is evidence, when certified by the clerk or oflicer in whose custody it is required by law to be. This is an amended provision of the laws of 1845, chap. 303, § 1. 252 Law op Evidence. Prior to the statute, the record of a federal court might be proved by au office copy. Jenkins v. Kingsley, Col. & Caines, 136. Pepoon V. Jenkins, 2 Johns. Cas. 119. And as a judgment recovered in the circuit court of the United States is a record, it was only provable by an examined copy on oath. Baldwin v. Hale, 17 Johns. 273. When a bankrupt's discharge is offered in evidence, jurisdiction of the U. S. court vrill be presumed. Morse v. Cloyes, 11 Barb. 100. See Cone v. Purcell, 56 N. Y, 649. § 944. Copies of Documents on File in Departments op U. S., Presumptive Evidence. A copy of a record or other paper, remaining in a depart- ment of the government of the United States, is evidence, when certified by the head, or acting chief officer, for the tinde being, of that department, or when certified by the officer in whose charge it is, pursuant to a statute of the United States, or otherwise in accordance with a statute of the United States relating to certifying the same. The record of the observations of the weather, taken under the direction of the signal service of the United States, when certified by the officer in charge thereof, at the place where they were taken, and are kept, is presumptive evidence of the matters of fact stated therein. From the laws of 1846, chap. 240, § 1, which is amended, and the laws of 1876, chap. 299, by which the last clause was added. It was again amended by the laws of 1879, by inserting the second sentence. A copy of a post-master's account current, which is certified by the auditor and post-master general, is evidence in the state courts. Haddock «. Kelaey, 3 Barb. 100. Code Civ. Peo., § 944. 253 On a trial, an exemplified copy of a register, under the seal of the treasury department, was produced on which was indorsed a memorandum, that it was received at the department on the 26th of June, 1819. This was held prima facie evidence. Pacific Ins. Co. ^. Catlett, 4 Wend. 86. A certificate of the organization of a national bank, certified by the comptroller of the currency, is admissible. Mer. Ex. Nat. Bank «. Oardoza, 35 Super. Ct. 168. The certificate of the comptroller of the treasury approved by the secretary, and reciting the facts necessary to confer jurisdiction, is evidence of the appointment of a receiver of a national bank. Piatt «. Beebe, 57 N. Y. 339. Where the officer in charge of the signal service depart- ment produces a book containing a copy of the record, attested by his signature, and he verifies its correctness as a witness,' this is sufficient certification, "under oath," to authorize the reception of the copy as evidence. Schile V. Brokhahus, 80 N. Y. 615. § 945. Record op Bill of Sale, Etc., of Vessels. The record of a bill of sale, mortgage, hypothecation, or conveyance of a vessel, belonging to a port, or place, within the United States, recorded in the office of the collector of customs, where the vessel is registered or enrolled, which was acknowledged or proved before it was recorded, in like manner as a deed to be recorded within the state ; or a transcript of such a record, duly certified by the collector, is evidence, with the like effect as the original. Taken from the laws of 1862, chap. 251, as amended by the laws of 1865, chap. 512. The fact that a vessel was registered in the name of a 254 Law of Evidence. person, as master, is only to be regarded as prima facie evidence tending to prove that lie vsras in fact such master. Draper v. Com. Ins. Co., 31 N. Y. 378. § 946. Conveyance op Land without the State. A conveyance of real property, situated without the state, acknowledged or proved, and certified, in like manner as a deed to be recorded within the county, wherein it is offered in evidence, is evidence without further proof thereof, as if it related to real property situated within the state. A conveyance of real property, situated within another state, or a territory of the United States, which has been duly authenticated, according to the laws of that state or territory, so as to be read in evidence in the courts thereof, is evidence in like manner. This is practically the same as IE. S., 761, § 27. §947. Exemplification of Record of Conveyance of Land without the State. An exemplification of the record of a conveyance of real property, situated without the state, and within the United States, which has been recorded in the state or territory, where the real property is situated, pursuant to the laws thereof, when certified under the hand and seal of the officer having the custody of the record, is, if the original cannot be produced, presumptive evidence of the convey- ance, and of the due execution thereof. This provision was not in the Revised Statutes, or the code of procedure. Code Civ. Peo., § 948. 255 § 948. Transckipt of Docket, Etc., of Justice of Adjoining State. A transcript from the docket-book of a justice of the peace, within an adjoining state, of a judgment rendered by him; a transcript of his minutes of the proceedings in the cause, previous to the judgment, or of an execution issued thereon, or of the return of an execution, when subscribed by the justice, and authenticated as prescribed in the next section, is presumptive evidence of his jurisdiction in the cause, and of the matter shown by the transcript. Laws of 1836, chap. 439, § 1, amended so as to remove obscurities. § 949. Id.; How Authenticated. Such a transcript must be authenticated by a certificate of the justice annexed thereto, to the effect that it is in all respects correct, and that he had jurisdiction of the cause, and also by a certificate of the clerk or prothonotary of the county in which the justice resided at the time of render- ing the judgment, under his hand and seal of the court of common pleas, or other county court of the county, to the effect that the person subscribing the certificate attached to the transcript, was, at the date of the judgment, a justice of the peace of that county, and that the signature thereto is in his own handwriting. Similar to the laws of 1836, chap. 439, § 2, from which it was taken. 256 Law op Evidence. § 950. Other Pkoop. The judgment, and other proceedings, and the justice's authority to render the judgment, may also be proved by the production of the docket, or of a copy of the judgment, or other proceedings, and the oral testimony of the justice, to the truth and correctness thereof, and to his authority to render the judgment. Taken from the laws of 1836, chap. 439, § 3. § 951. Pboop mat be Rebutted. The last three sections do not prevent the introduction of evidence, to controvert any of the proof, in relation to the validity of a judgment therein specified. This is substantially the same as § 4, of the lavrs of 1836, chap. 439. § 953. Copies op Records op Courts op Foreign Countries; now Authenticated. A copy of a record, or other judicial proceeding, of a court or a foreign country, is evidence, when authenticated as follows : 1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office. 2. By a certificate of the chief judge, or presiding mag- istrate of the court, to the effect that the person so attest- ing the record is the clerk of the court ; or that he is the Code Civ. Peo., § 952. 257 officer in whose custody the record is required by law to be kept, and that his signature to the attestation is genuine. 3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the secretary of state, or other officer, having the custody of that seal, to the effect that the court is duly constituted, specifying generally the nature of its jurisdic- tion, and that the signature of the chief judge, or presiding magistrate, to the certificate specified in the last subdivision. This provision is substantially the same as § 26 of the 2 R. S., 396, and omits the requirement in the certificate, as to the verification of the signature of the clerk, or other officer having the custody of such record. The record of a judgment, in the province of Upper Canada, is properly authenticated, by the attestation of the clerk of the court, the certificate of the chief-justice of the court, the secretary of state, and our courts will take judicial notice of their existence, and authority, without any certi- fication by the imperial authorities. Lazier v. Westcott, 26 N. Y. 146. The record of a judgment, rendered in a court of common pleas of a county of another state, and duly authenticated, is competent evidence in the courts of this state, and is to be regarded as a judgment of a court of general jurisdiction, and is entitled to every presumption in favor of its validity and regularity. Pringle v. Woolworth, 90 N. Y. 503. First Nat. Bank v. Fourtli Nat. Bank, 89 N. Y. 412. Where a certificate of a register, of a foreign probate court, was added to what was alleged to be a copy ofa will, and to a statement of the action taken upon the application for its probate, and these were authenticated simply and solely, by the certificate of the vice and deputy consul general of the United States, in London, who also certified himself to be a notary public of the United States, it was held, this was not a sufficient authentication. Brown v. Landon, 4 Civ. .Pro. 11. 17 258 Law of Evidence. § 953. Othee Peoop. A copy of a record, or other judicial proceeding, of a court of a foreign country, attested by the seal of the court in which it remains, must also be admitted in evidence, upon due proof of the following facts : 1. That the copy offered has been compared by the wit- ness with the original, and is an exact transcript of the whole of the original. 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. 3. That the attestation is genuine. • This is similar to § 27, of the 2 R. S., 397, from which it was taken. Where the certificate of the prothonatary, attached to the exemplification of the record of judgment from another state, is signed by the "chief clerk," whose signature is duly attested by the "presiding judge" of the court, it is sufficient. Sheriff v. Smith, 47 How. Pr. 470. The attestation, by a deputy-clerk, of a judgment, is insufficient. Morris v. Patchin, 34 N. Y. 394. § 954. This Aetiole does wot Declaee Effect of Recoed, ETC. Nothing in this article is to be construed as declaring the effect of a record, or other judicial proceeding of a foreign country, authenticated, so as to be evidence. Taken from the last clause of § 28, 2 R. S., 397. Code Civ. Pko., § 955. 259 § 955. This section was repealed in 1877. § 956. Documents from Foreign Countries ; how Authen- ticated. A copy of a patent, record or other document, remaining of record in a public office of a foreign country, certified according to the form in use in that country, is evidence when authenticated, as follows : 1. By the certificate, under the hand and ofiicial seal of a commissioner appointed by the governor to take the proof or acknowledgment of deeds in that country, to the efl:ect that the patent, record or document is of record in the public ofiice, and that the copy thereof is correct, and certified in due form. 2. By a certificate, under the hand and official seal of the secretary of state, annexed to that of the commissioner, to the same effect as prescribed by law for the authentica- tion of the certificate of such a commissioner, upon a con- veyance to be recorded within the state. The certificate of the commissioner, thus authenticated, is presumptive evi- dence that the copy of the patent, record or document is certified according to the form in use in the foreign country. Based upon the laws of 1875, chap. 136, portions of §§ 1, 2, 8 and 9. See McKinnon v. Barnes, 66 Barb. 91. Sections 956, 958 and 942 have no application to an indict- ment for counterfeiting baink notes. People V. D'Argencour, 95 N. Y.^629. 260 Law of Evidence. CHAPTER IX. TITLE V. MISCELLANEOUS PROVISIONS. § 957. FoKM OF Ceetifioate to Copies, etc. Where a transcript, exemplification, or certified copy of a record, or other paper, is declared by law to be evidence, and special provision is not made for the form of the cer- tificate in the particular case, the person, authorized to certify, must state, in his certificate, that it has been com- pared by him v^ith the original, and that it is a correct transcript therefrom, and of the whole of the original. 2 R. S., 403, the first part of § 59, amended. It seems that this section applies to a transcript of a judgment. People ex rel Crittenden d. Keenan, 31 Hun, 627. § 958. Certificate must be Sealed. If the officer, or the court, body, or board, in whose cus- tody an original paper, specified in the last section, is required to be, by the laws of the state, or of another state, Code Civ. Pro., § 958. 261 or of the United States, or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the state, it must be attested by the seal of the county. An amendment of the latter part of § 59 of the 2 R. S., 403. Under the Revised Statutes, this provision related only to certificates made in this state. See, People v. D'Argencour, ante, § 956. § 959. Qualification of Last Section. The last section does not require the seal of a court to be affixed to a certified copy of an order, or of a paper filed therein, or entry made, where the copy is used in the same court, or before an ofiicer thereof, or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer. Founded upon § 60 Of the 2 R. S., 404, the words "of a court of oyer and terminer ' ' added. § 960. Public or Corporate Seal may be Stamped. Where a seal of a public officer, or of a corporation, is authorized, or required by law, it may be impressed directly on the paper. From section 61 of the 2 R. S., 404, as amended by the laws of 1848, chap. 197, § 1. Where a court finds that an instrument is under seal, such finding will not be reversed on appeal. Van Bokkelen v. Taylor, 62 N. Y. 105. 262 Law op Evidence. § 961. Surrogates, Clerks, Etc., to Search Files and to Certify, Etc. A surrogate, county clerk, register, clerk of a court, or other person, having the custody of the records, or other papers in a public office, within the state, must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar ser- vice, diligently search the files, papers, records, and dockets in his office ; and either make one or more transcripts there- from, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor. An amendment of the laws of 1847, chap. 470, § 40. See, Kimball v. Connolly, 3 Abb. Dec. 504. § 963. Saving Clause. Nothing in title fourth of this chapter prevents the proof of a fact, act, record, proceeding, document or other paper or writing, according to the rules of the common law, or by any other competent proof. Part of § 28 of the 2 R. S., 397, and the laws of 1846, chap. 240, § 2. This section permits the proof of an act according to the rules of the common law, or by any other competent proof. Hynes v. McDermott, 82 N. Y. 55. COMMISSION. CHAPTER XYII. TITLE V. COMMISSION IN PEOCEEDINGS TO DISCOVER LIFE-TEN AKT. §12311. Commission to be Issued ie Life-Tenant is Without THE State. If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party upon whom the petition and notice are served presents to the court presumptive proof, by affidavit, that the person whose death was in question is, or lately was, at a place certain, without the state, the court must make an order requiring the petitioner to take out a commission, directed to one or more persons, residing at or near that place, either designated in the order or to be appointed upon a subsequent application for the commission, for the purpose of obtaining a view of the person whose death is in question, and of taking such testimony respecting his identity, as the 264 Law of Evidence. parties produce. The order must, also, direct that the proceedings upon the petition be stayed until the return of the commission ; and that the petition be dismissed with costs, unless the petitioner takes out the commission within a time specified in the order, and diligently procures it to be executed and returned at his own expense. This section is based upon the 2 R. S., 345, § 11, and the wording has been considerably changed. § 3312. General Peovisions Eespecting the Commission. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken must be filed and used, as pre- scribed for those purposes in article second of title third of chapter ninth of this act, except as otherwise specially prescribed in this title. A new provision. § 2313. Petitioner to Give Notice op its Execution. The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows : 1. If the place where the commission is to be executed, is within the United States, or the dominion of Canada, he must give at least two months' notice. 2. If it is within either of the West India islands, he must give at least three months' notice. 3. In every other case, he must give at least four months' time. Code Civ. Peo., | 2313. 265 Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court. Taken from § 12 of the 2 R. S., 345. The last clause is new. § 9314. ExECFTioBT Thereof. The commissioner or commissioners possess the same powers, and must proceed in the same manner as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence ; except that they cannot proceed unless a person is produced before them as being the person whose death is in question. The return to the commission must expressly state whether any per- son was or was not so produced. The testimony, respect- ing the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as pre- scribed in chapter ninth of this act, for taking the deposi- tion of a witness upon oral interrogatories : except that it is not necessary to give any other notice of the time and place of examination than that prescribed in the last section. 2R. S., 345, part of §13. The former provision read as follows : "The commission- ers shall possess the same powers, and shall proceed in like manner, as above provided, and the like proceedings shall be had, and with the like effect, upon the coming in of their report. § S315. Proceedings on Return of Commission. Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in 266 Law of Evidence. sections 2309 and 2310 of tliis act ; but the court may, in its discretion, receive additional proofs from eitlier party. This provision vras substituted for the remainder of § 13, and §§ 14, 16 and 16 of 2 R. S., 345. Code Civ. Pro., § 2538. 267 CHAPTER XVIII. TITLE II. ARTICLE 1. COMMISSION IN SURROGATES' COURTS. § 9538. Certain Provisions made Applicable to Proceedings IN Surrogates' Courts. Except where a contrary intent is expressed in, or plainly implied from the context of, a provision of this chapter, the following portion of this act, to wit: title first, and article third and fourth of title sixth, of chapter eighth, and articles first and second, of title third of chapter ninth, apply to surrogates' courts, and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form. New. The provisions of §§ 803 to 809 inclusive, touching the inspection and discovery of books and papers, are applica- ble to surrogates' courts. Dole V. Stokes, 5 Redf. 593. Also the provisions of §§ 887 to 913, relative to the issuance of a commission to take a deposition. Cadmus v. Oakley, 3 Dem. 801. 268 Law op Evidence. CHAPTER XIX. TITLE IV. ARTICLE 3. COMMISSION TO TAKE TESTIMONY— JUSTICES' COURTS. § 3980. Commission to Examine Witness upon Inteeeogatoeies. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been Joined in an action ; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prose- cution or defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon, or annexed to the commission, to take and certify the deposition of the witness, and to return the same by mail, addressed to the justice. Laws of 1838, chap. 243, § 2, and the amendment added to § 3 by the laws of 1847, chap. 329. The words, ' ' by mail, addressed to the justice, " substi- tuted for the words, ' ' according to the directions given with such commission." Although the right of a party to a commission is a sub- stantial one, and an arbitrary refusal of the justice to issue Code Civ. Pko., § 2980. 269 a commission would require a reversal of Ms judgment, yet, the power to issue the commission is a discretionary one, and the justice may properly refuse to issue it, when no possible benefit could accrue to the party applying for it. Dryer d. Sexsmith, 40 Hun, 242. If, upon a proper affidavit, the justice arbitrarily refuses to issue a commission, when no reason appears to the con- trary, the judgment will be reversed. Eaton V. North, 7 Barb. 631. Dryer v. Sexsmith, 40 Hun, 242. The applicant is not bound to state what he expects to prove by the witness. Eaton V. North, 7 Barb. 631. The insufficiency of a notice of motion for a commission must be objected to at the time it is awarded. It is too late to object after the commission has been executed and returned. Allen V. Edwards, 3 Hill, 499. § 3981. Id.; Orally. If both parties expressly consent, a commission granted as prescribed in this article, may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act, applies to the execution of the commission, and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given. New provision. § 3983. When and How Granted. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the 270 Law op Evidence. return of the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, upon the application of either party, accompanied with proof, by affidavit, that six days' written notice of the application has been served upon the adverse party, either personally or by service upon the attorney, who appeared for him before the justice. From the laws of 1838, chap. 243, § 3. The words, "It may also be granted at any time after the joinder of issue," and the words, "either personally et seq.,^^ are new. § 3983. _ Adjouenment, Where a commission is granted upon the application of the plaintiff, he is entitled to one or more adjournments of the trial, as may be necessary to procure the commission to be executed and returned ; not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. Laws of 1881, chap. 138, § 1. § 3984. Execution and Return op Commission. The commission must be executed and returned, as pre- scribed in section 901 of this act ; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted. Substituted for the laws of 1838, chap. 243, § 4. § 2985. Receipt Theeeop by Justice. The justice, to whom the package containing the com- mission is transmitted by mail, must receive it from the Code Civ. Pko., § 2985. 271 post-office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him until the trial, but either party is entitled to inspect it on file Substituted for the laws of 1838, chap. 243, § 4. § 2986. When Deposition Evidence. Sections 902 and 903 of this act apply to a commission issued as prescribed in this article, and to the execution thereof. A deposition, taken thereunder, may be read in evidence upon the trial by either party, and has the effect specified in section 911 of this act. This is a substitute for the laws of 1838, chap. 243, § 4. The provisions, relative to the suppression of a commis- sion, apply to a justice's court. Denny v. Horton, 3 Civ. Pro. 355. § 2987. PowEEs OF Commissioners. Where the commission is executed within the state, that commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to comi)el his attendance, that a justice of the peace has, in an action pending before him. Laws of 1841, chap. 138, § 2. The words, "or if there are two or more, a majority of them," are new. 272 Law op Evidence. CHAPTER XX. TITLE I. ARTICLE 2. COMMISSION IN MARINE COURT. § 3171. Commission to take Testimony. The application to tlie court, of article second of title third of chapter ninth of this act, is subject to the following qualifications : 1. The words, "the city and county of New York, or either of the counties of Richmond, Kings, Queens, or Westchester," must be regarded as substituted in place of the words, "the state," wherever those words are used in that article with respect to the locality of a witness. 2. Interrogatories, framed pursuant to that article, can be settled only by a Justice of the court. 3. A commission, or order to take depositions, issued or granted pursuant to that article, may be executed either within or without the state. Laws of 1852, chap. 389, § 8. MISCELLANEOUS PROVISIONS. § 533. When Pleading must be Yeeieied ; and when Veeipication may be Omitted. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by ^ his guardian ad litem, must also be verified. But the veri- fication may be omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying as a witness, concerning an allegation or denial ^contained in the pleading. A pleading cannot be used in a criminal prosecution against the party, as proof of a fact admitted, or alleged therein. The second sentence was taken from the laws of 1854, chap. 75 ; the last sentence was taken from § 157 of the Code of Procedure. This provision is applicable only to cases where allega- tions, coming within the exceptions, are contained in the pleadings, to be answered. They do not extend to cases where new matter in avoidance, or where a counter claim is set up containing allegations accusing the pleader of a felony, or as to which he would be privileged from testi- fying. Fredericks «. Taylor, 53 N. Y. 596. The criterion is to inquire, not whether the pleading may be used against him in a criminal prosecution, but whether, if called as a witness to testify to the same matter 18 274 Law of Evibbnce. contained in the pleading, he would be excused from answering. If any of the parties are privileged, their veri- fication may be omitted, and it may be omitted if any of the statements would excuse such verification. Clapper -o. Fitzpatrick, 3 How. Pr. 313. Blaisdell ». Eaymond, 5 Abb. 144 AfE'd, 6 Abb, 148. The defendant may, in such cases, deny the allegation, and omit to verify his answer. Scovill «. New, 12 How. Pr. 319. The verification of defendant's answer maybe omitted, where it might subject defendant to a criminal prosecution. Davenport G. M. Co. v. Taussig, 18 W'k Dig. 408. If, in an action for libel, the defendant denies the publi- cation charged, he is entitled to omit the verification of his answer. Blaisdell v. Eaymond, 5 Abb. 144. Aff'd, 6 Abb. 148. An answer to a verified complaint, in an action for libel, need not be verified. Wilson V. Bennett, 14 W'k Dig. 452. The defendant is not excused. 'from verifying his answer to a sworn complaint, on the ground that the complaint charges him with fraud in the making of the assignment which it is the object of the action to have set aside. Wolcott V. Winston, 8 Abb. 432. And in an action for obtaining goods under false pre- tences, the defendant need not verify his answer. Frist «. Climm, 6 Civ. Pro. 30. Also, in an action charging the defendant with keeping a bawdy house. Anderson v. Doty, 33 Hun, 288. Also, in an action of assault and battery. Springsted v. Robinson, 8 How. Pr. 41. It has been held that in an action for divorce the answer Code Civ. Peo., § 523. 275 must be verified if the compl§,int is, although the latter charges the defendant with adultery. Olney v. Olney, 7 Abb. 350. Contra, Sweet V. Sweet, 15 How. Pr. 169. Anable v. Anable, 34 How. Pr. 93. When it does not appear from the complaint whether the defendant is sued, as a winner or stakeholder, for receiving money contrary to a statute against betting, the complaint being verified, the answer must be verified, if it is a mere denial. Lynch «. Todd, 13 How. Pr. 546. The court will not assume, merely from the pleadings, that an answer to a verified complaint was not verified, for the reason that the party answering "would be privileged from testifying as a witness, concerning an allegation," contained in the complaint. Boache v. Kivlin, 35 Hun, 150. Semble, that it is proper when a defendant claims the right to serve an unverified answer to a verified complaint, that he should serve therewith an afiidavit showing his excuse for not verifying his answer. Roache v. Kivlin, 35 Hun, 150. See Springsted v. Robinson, 8 How. Pr. 41. Where it can be seen from the complaint that the defend- ant would be privileged from testifying as a witness to the truth of its allegations, the defendant may serve his answer without a verification, and unaccompanied by any afiidavit stating the grounds on which he omits to verify it. Wheeler ». Dixon, 14 How. Pr. 151. Moloney v. Dows, 3 Hilt. 347. To the same effect under the Code of 1848, which contains substantially the same provision.. Clapper v. Fitzpatrick, 3 How. Pr. 314. The question may be brought before the court, for- determination by a motion for judgment, as upon a failure to answer. Moloney v. Dows, 3 Hilt. 347. 276 Law of Evidence. It is not required to sho-vy on a motion for judgment, that the direct effect of admitting the truth of the matter charged, would be to subject him to punishment or liability ; it is sufficient that it might have that tendency, and it need notbe shown how it would or might subject him to prose- cution or punishment. Moloney «. Dows, 2 Hilt. 347. § 1734. Sheriff's Return, Evidence Therein. In such an action against the sureties, the sheriff's return to the execution is presumptive evidence of a failure to deliver, or to return a chattel, or to pay a sum of money, according to the terms of the undertaking. 2 R. S., 533, § 65. The word "presumptive" inserted. § 1753. Certain Proceedings Regulated in Action to Annul Marriage. In an action brought as prescribed in this article, a final judgment, annulling the marriage, shall not be rendered by default, for want of an appearance or pleading, or upon the trial of an issue, without proof of the facts, upon which the allegation of nullity is founded. And the declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced. In such an action, except where it is founded upon an allegation of the physical incapacity of one of the parties thereto, the court must, upon the application of either of the parties, make an order direct- ing the trial, by a jury, of all the issues of fact ; or it may, of its own motion, make an order directing the trial by a jury, of all the issues of fact ; or it may, of its own motion, ihake an order directing the trial by a jury, of one or more Code Civ. Pro., § 1753. 277 issues of .fact, for which purpose, the questions to be tried must be prepared and settled, as prescribed in section 970 of this act. Parts of §§ 35 and 36 of the 2 R. S., 144. See 2 R. S., 175, § 45. The first sentence is new, see rule 78 (74 of 1884). The code has not attempted either to enlarge or diminish the jxirisdiction of the court, as to the evidence upon which a divorce may be decreed. On the contrary, the former jurisdiction is continued as it was vested when the code was enacted. Blott v. Rider, 47 How. Pr. 90. The court will not annul a marriage contract upon the mere admission by the defendant of the facts charged. Montgomery v. Montgomery, 3 Barb. Ch. 132. The fact of the existence of the physical incapacity of the defendant at the time of marriage, and of its incurability, must be established by the most satisfactory evidence, although they are admitted by the defendant. Devanbagh v. Devanbagh, 5 Paige, 554. § 1754. Judgment Annulling a Maeeiage ; how eae Con- clusive. A final judgment, annulling a marriage, rendered during the lifetime of both the parties, is conclusive evidence of the invalidity of the marriage, in every court, of record, or not of record, in any action or special proceeding, civil or criminal. Such a judgment, rendered after the death of either party to the marriage, is conclusive only as against the parties to the action, and those claiming under them. 2 R. S., 144, § 37. Under the R. S., it read "in all courts or proceedings " in the place of the words," in every court," etc. 278 Law op Evidence. § 1833. When Inventory mat be Contradicted. In an action or special proceeding, to whicli an executor or administrator is a party, wherein the question, whether he has administered the estate of the decedent, or any part thereof, is in issue, or is the subject of inquiry, and the inventory of assets, filed by him, is given in evidence, either party may rebut the same, by proof, either : 1. That any property was omitted in the inventory, or was not returned therein at its true value ; or, 2. That any property has perished, or has been lost, with- out the fault of the executor or administrator, or has been fairly sold by him, at private or public sale, at a less price than the value so returned ; or that, since the return of the inventory, it has deteriorated, or enhanced in value. From the 2 R. S., 449, § 14. Made applicable to special proceedings. The words "or is the subject of inquiry" are new. Section 1832, 1833 and 1834 extend these provisions to cases where executors or administrators are parties to special proceedings. Thorne v. Underhill, 1 Dem. 306. These sections apply, only, to cases where the executor sets up what is equivalent to the former plea of plene administramt, and not to an accounting ; the question being, not whether he has administered, but how he has managed the estate. Thome ». Underhill, id. § 1833. Liability foe Uncollected Demands. In such an action or special proceeding, the executor or administrator shall not be charged with a demand, or right of action, included in the inventory, unless it appears that the same has been collected, or might have been collected with due diligence. Code Civ. Pro., § 1833. 279 Same as 2 R. S., 449, § 15, with the addition of the words ' ' or special proceeding. " It must be such diligence as a good business man would exercise in the management of his own property, under like circumstances. Smith «. Callamer, 2 Dem. 147. Moore's Estate, 1 Tucker, 41. An administrator held resposible for the non-collection of a good debt. Moore's Estate, 1 Tucker, 41. It has been held that where an executrix failed to enforce a judgment during the time it was a first lien upon a farm, her failure so to do constituted such negligence as to render her personally liable for the amount of the judgment. Hollister v. Burritt, 14 Hun, 291. Learned, P. J., dissenting. Where an executor hands over money or securities belonging to the estate to his co-executor, he will only be exempted from liability upon showing good reason for having done so. Mesick ». Mesick, 7 Barb. 120. If the executor allows the capital to go into the hands of a legatee who is entitled only to the use of the residue of the testator's personal estate for life, he must take suffi- cient security from the legatee, or he will be liable for its loss. Clark «. Clark, 8 Paige, 152. § 1834. The Last Two Sections Qualified. The last two sections do not vary any rule of evidence, respecting any proof, which an executor or administrator may now make. From 2 R. S., 449, § 16. 280 Law op Evidence. § 1863. Prooe of Lost Will in Certain Cases. But tlie plaintiff is not entitled to a judgment establish- ing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his life-time ; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equiva- lent to one witness. Taken from § 67 of the 2 R. S., 68, which is hereby amended. Where a will has been lost or destroyed, under circum- stances showing that it has not been lost or destroyed with the knowledge or consent of the testator, the fact of its legal existence at the death of the testator may be proved by circumstantial evidence. Schultz V. Schultz, 35 N. Y. 653. A will destroyed in the life-time of the testator by the testator himself, acting under the undue influence of his son, may be admitted to probate, on establishing the facts showing existence and due execution of the wiU, and its destruction by reason of such undue influence. Voorhees «. Voorhees, 39 N. T. 463. The fraud, in the destruction of a will which will allow its probate, must consist in some deceitful contrivance, device, or practice to defeat the wishes and intent of the testator. No fraud can be committed by any person in destroying, or assisting to destroy, a will by the express directioa, and in the presence of the testator, who is in the full possession of his faculties. Timon v. ClafEy, 45 Barb. 438. Afe'd, 41 N. Y. 619. It has been held under the provisions of this section, and section 261, that any legal evidence of the existence of a will executed subsequently to the one offered for probate, is sufficient to justify the denial of the probate of the earlier paper. In re Estate of CoUigan, 5 Civ. Pro. 198. Code Civ. Peo., § 1865. 281 The loss or destruction is a fact material to be proved before a will can be admitted under this section. McNally i). Brown, 5 Redf. 372. To establish a lost will, proof must be made of its execu- tion, and validity, its contents by two witnesses or their equivalent, its existence at the death of the testator, and its loss. Grant ». Grant, 1 Sandf . Ch. 335. As to what is sufficient proof of the execution and pro- visions of the will, see Everitt «. Everitt, 41 Barb. 385. To establish a lost or destroyed will, it is equally neces- sary, as in the case of a will actually presented, that two, at least, of the subscribing witnesses be produced, or the non- production of them, or either of them, satisfactorily accounted for, aud then the handwriting, or the fact of their having signed the will as witnesses, must be duly proven by competent testimony. Collyer t. Collyer, 17 Abb. N. C. 328. The words of the section, "clearly and distinctly proved by at least two credible witnesses," should be liberally construed. Early v Early, 5 Redf. 376. It is not necessary, under this section, and section 2621, that the witnesses should remember the exact language, but they must be able to testify at least to the substance of the whole will. McNally v. Brown, 5 Redf. 373. Early v. Early, 5 Redf. 376. A lost or destroyed will cannot be established on the testimony of two witnesses, if they differ materially, either as to the beneficiaries, or the amount of bequests. Sheridan ». Houghton, 6 Abb. N. C. 334. McNally v. Brown, 5 Redf. 372. The provisions of this section are not satisfied by the testimony of one witness to the provisions of the will, and a copy or draft, proven to be correct by the testimony of the same witness only. Collyer v. Collyer, 17 Abb. N. C. 338. 282 Law of Evidence. As to the admission of the declaration of decedent respecting the dispositions in his will, see Hatch V. Sigman, 1 Dem. 519. Declarations of the decedent, as to the contents of the will, are not available for this purpose. Collyer v. Collyer, 17 Abb. N. C. 328. It seems that declarations of decedent, as to the existence of the will, are admissible, but not his declarations of its destruction. Collyer v. Collyer, 17 Abb. N. C. 328. § 3631. Pbooe op Lost oe Destroyed Will. A lost or destroyed will can be admitted to probate in a surrogate's court, but only in a case where a judgment establishing the will could be rendered by the supreme court, as prescribed in section 1865 of this act. 2 R. S., 68, § 67. Laws of 1870, chap. 359, § 8. See cases under last section. Proceedings to establish lost or destroyed wills can be entertained in a surrogate's court, since the enactment of the Code of Civil Procedure. Hatch V. Sigman, 1 Dem. 521. Collyer ii. Collyer, 17 Abb. N. C. 328. § 1917. Action upon Lost Negotiable Paper. Where it appears, upon the trial of an action, that a negotiable promissory note, or bill of exchange, upon which the action, or a counter-claim interposed in the action, is founded, was lost, while it belonged to the party claiming the amount due thereupon, he may prove the contents thereof by patrol or other secondary evidence, and may Code Civ. Peo., § 1917. 283 recover or set-off the amount due thereupon, as if it was produced. But for that purpose, he must give to the adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties approved by the judge or the referee, to the effect that he will indemnify the adverse party, his heirs and personal representatives, against any claim by any other person, on account of the note or bill, and against all costs and expenses by reason of such a claim. Sections 75 and 76, of the 2 K,. S., 406, consolidated and amended. The words, "fixed by a judge or the referee," are new. The statute applies, although the bill, note or check be lost after the action is commenced. Jacks V. Darrin, 3 E. D. Smith, 548. Id., 3E. D. Smith, 557. The plaintiff is not allowed to give evidence of the contents of a note, or resort to proof of the original consideration of the note, without accounting for the loss or destruction of the note, in such a manner as to repel all inference of a fraudulent design in its destruction. Blade v. Noland, 13 Wend. 173. Where a plaintiff declared on a promissory note, payable on demand, and stated that the note had been lost or destroyed, and the existence and contents of the note being proved, and it not appearing that the note was negotiable, or if negotiable, that it had in fact been nego- tiated, held, that he was entitled to recover on the note. Pintard v. Tackington, 10 Johns. 104. § 1918. The Last Section Qualified. But where an action is prosecuted or defended by the people of the state, or by a public officer in their behalf, 284 Law of Evidence. the people, or tlie public officer, may prove the contents of a lost note or bill of exchange, by parol or other secondary evidence, and may recover or set off the amount due there- upon, without giving any security to the adverse party. Laws of 1855, chap. 85. § 1933. Effect of Such Judgment. Such a judgment is conclusive evidence of the liability of each defendant, upon whom the summons was personally served, or who appeared in the action. Wliere it is taken against a defendant, upon whom the summons was served by publication, or without the state, pursuant to an order for that purpose, it has the effect, as against that defendant, specified in section 445 of this act. As against such a defendant, who is allowed to defend after judgment, or as against a defendant not summoned, it is evidence only of the extent of the plaintiff 's demand, after the liability of that defendant has been established, by other evidence. From 2 R. S., 377, § 2. The second sentence, and the first part of the last sentence, are new. A judgment entered on service upon only one joint debtor, is no evidence of any personal liability, and does not constitute a debt against the party not served. Lane v. Salter, 51 N. Y. 5. Dean i>. Eldridge, 29 How. Pr. 222. Utica C. D. Manf. Co. ». Otis, 37 Hun, 302. A joint debtor who is not summoned has the same defenses in an action to charge him with a judgment entered against him, as he would have had, if served in the original action, and the judgment is not conclusive evidence of the amount of the debt. Ricbardson i). Case, 3 Civ. Pro. 295. Code Civ. Pro., § 218f. 285 §9181. Discharge op Insolvent, Etc., to be Recorded. The discharge, and the petition, affidavits, orders, schedule, and other papers, upon which the discharge is granted, exclusive of the minutes of testimony, must be recorded in the clerk's office of the county, within three months after the discharge is granted. In default thereof, the discharge becomes inoperative, from and after that time. The original discharge, the record thereof, or a tran- script of the record, duly authenticated, is conclusive evidence of the proceedings and facts therein contained. The other papers, specified in this section, the record there- of, or a transcript of the record, duly authenticated, are presumptive evidence of the proceedings and facts therein contained. 2 R. S., 38, § 19, amended. § 3398. Affidavits of Sale, Posting, Serving, Etc., Notices, MAT BE Filed and Recorded. The affidavits specified in the last tvs^o sections may be filed in the office for recording deeds and mortgages, in the county where the sale took place. They must be recorded at length by the officer with whom they are filed, in the proper book for recording mortgages. The original affidavits, so filed, the record thereof, and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more counties, a copy of the affidavits, certified by the officer with whom the originals are filed, may be filed and recorded in each other county, wherein any of the property is situated. Thereupon the copy and 286 Law of Evidence. the record thereof have the like effect with respect to the property in that county, as if the originals were duly filed and recorded therein. Part of section 11, of 2 R. S., 547. The recorded affidavits constitute the evidence of the statutory transfer of title. Bryan v. Butts, 27 Barb. 503. Affidavits of foreclosure are only presumptive evidence of the facts, and any person, unless it be the mortgagee, or those claiming under him, may controvert them by parol evidence. Mowry v. Sanborn, 63 Barb. 223. This case was reversed on the ground that the affidavit was made on information and belief as to residence of party served by mail. 65 N. Y. 581. The necessary facts, not required by the statute to be in the affidavits, may be proved by parol. Story «. Hamilton, 1(J W'k Dig. 13. The service of notice of sale upon the parties may be shown by common law evidence, in the absence of an affi- davit showing such service. Mowry v. Sanborn, 68 N. Y. 158. Eev'g, 7 Hun, 380. Mowry «. Sanborn, 72 N. Y. 534. Rev'g, 11 Hun, 545. But a defect in the affidavit of publication of notice of sale cannot be supplied by parol evidence. Mowry v. Sanborn, 11 Hun, 545. Reversed, on the ground that the affidavit in this case was sufficient. 72 N. Y. 534. Where the defense in an action on a bond for a deficiency under a statute foreclosure was a prior foreclosure of the same mortgage ; and where it did not appear that any affi- davits of sale were ever made, or filed, it was held that the sale could be proved by common law evidence. Osborn v. Merwin, 13 Hun, 333. Code Civ. Peo., § 2398. 287 To give the record, or a certified copy of the affidavit of service, the effect of presumptive evidence, it must show service of notice of foreclosure and sale upon the mortgagor in the manner prescribed by statute. Mowry v. Sanborn, 65 N. Y. 581. Rev'g, 63 Barb. 323. The making, filing and recording of affidavits of the foreclosure proceedings are not in the exercise of the pov^er of sale ; the povi^er is fully executed when a sale has been regularly and duly made, as prescribed by statute ; the afll- davits are merely evidence of the exercise of such power ; they are hut prima facie evidence of the facts stated, and may be controverted. Mowry v. Sanborn, 73 N. Y. 534. § 3460. No Person Excused from Answering on the Ground OP Fraud. A party or a witness, examined in a special proceeding, authorized by this article, is not excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud ; or to prove that he has been a party or privy to, or knowing of, a convey- ance, assignment, transfer, or other disposition of property for any purpose ; or that he or another person claims to be entitled, as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property derived from or through the judgment debtor ; or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used as evidence against the person so answering in a criminal action, or criminal proceeding. Taken, in part, from § 292 of the Code of Procedure. The words, " or to prove that he has been a party, etc., or to a person in his behalf," are new. The words, "civil 288 Law of Evidence. or" twice inserted by the enactment of tMs section, was struck out by the laws of 1881, chap. 122. The true meaning of the section is, that the examination of the witness shall not be used as evidence of any fact testified to by him on such examination. Barber v. People, 17 Hun, 368. Where it appears that the judgment debtor has trans- ferred property to a witness, the latter is bound to answer all questions touching the transfer, and seeking for infor- mation as to, and bearing upon the question, whether such transfer was for a good consideration, and was honest, or fraudulent, and upon his refusal to answer, he is liable to be punished as for contempt. Lathrop v. Clapp, 40 N. Y. 338. A debtor is required to show what he has done with his property, notwithstanding the fact that his examination will show he has been guilty of a crime, in doing it, and without any qualification or restriction arising out of the nature or character of such a crime. Forbes «. Willard, 54 Barb. 520. The testimony of a debtor, taken upon his examination in supplementary proceedings, may be used as evidence of his fraud to obtain a warrant of arrest under the non- imprisonment act, as such proceedings are not criminal proceedings. People ex rel Keiley «. Speir, 2 Abb. K. C. 466. Overruling, Keiley v. Dusenbury, 2 Abb. N. C. 360. This section is not limited simply to a fraud in the disposition of the debtor's property, but extends to any fraud whatever. Forbes «. Willard, 54 Barb. 520. A judgment debtor, who loses money at gambling, or other games of chance, may, on supi^lementary proceedings, be required to state, when and where he lost his money, with the names of the winners. Steinhart v. Farrell, 3 N. Y. State R. 292. Upon the trial of an indictment, the district attorney was allowed to prove that tlje prisoner had been examined in supplementary proceedings, and that his signature to Code Civ. Pro., § 2460. 289 the examination, which was produced in court, was genuine. The district attorney having read from the examination, it was held inadmissible to ask the prisoner whether the statements so read, or those which he had made upon the trial were true. Loomis V. People, 19 Hun, 601. An examination in supplementary proceedings of a debtor, who has made an assignment for the benefit of creditors, should not be confined to property acquired since the assignment. It may include an inquiry concern- ing his property, whether legal or equitable, including property transferred to another with the apparent intent to hinder, delay, or defraud creditors. Seligman v. Wallach, 16 Abb. N. C. 317. Schneider v. Altman, 2 How. Pr. N. S. 448. It is the province of the court to determine whether the answers of the witness will have a tendency to criminate him. Forbes u. Willard, 54 Barb. 530. § 2552. Decree or Order ; when Evidence op Assets. A decree, directing payment by an executor, adminis- trator or testamentary trustee, to a creditor of, or a person interested in the estate or fund, or an order, permitting a judgment creditor to issue an execution against an executor or administrator, is, except upon an appeal therefrom, conclusive evidence that there are sufiicient assets in his hands to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. 2 R. S., 116, first part of § 21. Where the leave granted is to issue execution against the decedent's real property, this provision is inapplicable, but a decree, directing the payment of money by the administrator, is conclusive evidence of assets. Gillies V. Kreuder, 1 Dem. 349. 19 290 Law op Evidence. § 3386. Power op Appellate Court ; Further Testimony. Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had, and it may in its discretion receive further testimony or documentary evidence, and appoint a referee. New. This provision applies exclusively to appeals to the supreme court. In re Ross, 87, N. Y. 514. Davis V. Clark, 87 N. Y. 624. Upon an appeal from an order of a surrogate, the whole case is to be examined by the appellate court, as well upon the facts, as upon the law, so far as those questions are presented on appeal. Howland v. Taylor, 53 N. Y. 627. Gilman «. Gilman, 3 Hun, 22. Robinson «. Raynor, 28 N. Y. 494. The court cannot reverse the decree of the surrogate, unless it appears to have been erroneously made. The presumption is in favor of its correctness. Rollwagen ». RoUwagen, 8 Hun, 121. On appeal from a final decree of a surrogate, the supreme court may receive newly discovered evidence, in addition to the evidence which was before the surrogate. CaujoUie's Case, 9 Abb. 393. It is not a matter of course to permit the appellant, in an appeal from a surrogate' s decision, to produce additional evidence not offered , or attempted to be produced before the surrogate, especially where the evidence is not newly discovered, but is such as the appellant might have produced before the surrogate. ^ Case «. Towle, 8 Paige, 479. Code Civ. Peo., § 2591. 291 § 3591. Effect of Letters. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to vrhom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. From the 2 E,. S., 80, § 56. Letters issued by the surrogate upon due proof, are con- clusive evidence of the authority of the administrator to act, until the order granting them is reversed on appeal, or the letters are revoked or vacated. Roderigas v. East River S. Inst., 63 N. Y. 460. Id., 76 N. Y. 333. Where ancillary letters of administration are issued upon proof tending to establish the right to them, although it was defective and irregular, they become conclusive in favor of the right of the administrator therein named to maintain an action. Brown v. Landon, 4 Civ. Pro. 11. Parhan v. Moran, 4 Hun, 717. The jurisdiction of the surrogate to issue them can only be attacked collaterally. Crosier «. Cornell S. Co., 37 Hun, 315. § 3618. Witnesses to be Examined; Peoof Required. Upon the return of the citation, the surrogate must cause the witnesses to be examined before him. The proofs must be reduced to writing. Before a written will is admitted to 292 Law of Evidence. probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent, and able to testify. Before a nuncupative will is admitted to probate, its execution, and the tenor thereof, must be proved by at least two witnesses. Any party who contests the probate of the will, may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the sub- scribing witnesses to a written will, or of any other witness whose testimony the surrogate is satisfied may be material, in which case, all such witnesses, who are within the state, and competent and able to testify, must be so examined. Laws of 1837, chap. 460, part of §§ 10 and 11. The latter part of this section is the same as under the laws of 1837, chap. 460, and laws of 1841, chap. 129. Hoyt V. Jackson, 2 Dem. 443. The proof of a will abides by the same rules of evidence as prevail in all other judicial investigations. Peeble's Case, 3 Bradf. 236. By the provision of the statutes, it was designed to place the proof of wills of real and personal property on the same footing. Caw e. Robertson, 5 N. Y. 129, The statute does not point out any mode or form in which testimony shall be taken. It is enough, if it be taken under oath, with full opportunity of examination for both sides. Seguine ®. Seguine, 2 Barb. 385. A party seeking to establish a will, must prove that all the requirements of the statute were substantially complied with in its execution. Lewis V. Lewis, 11 N. Y. 230. The statute prescribing the manner of executing and attesting wills, does not require a literal compliance with Code Civ. Pro., § 2618. 293 its provisions ; a substantial observance of them will be regarded as sufficient. Gamble v. Gamble, 39 Barb. 373. Coffin v. Coffin, 23 N. Y. 9. Seguine ». Seguine, 2 Barb. 385. Torry v. Bowen, 15 Barb. 304. See Doe ». Roe, 2 Barb. 200. See Keeney v. Whitmarsh, 16 Barb. 141. No unvarying rule, as to the amount of proof necessary, can be laid down. It becomes the duty of the court to ascertain, from all the facts and circumstances, whether the instrument offered is established with reasonable certainty and if it is, to receive the same. ' Rider v. Legg, 51 Barb. 260. As to the construction of this section, see Hoyt «. Jackson, 2 Dem. 443. The requirement of the statute in regard to publication is positive, and a compliance with it is indispensably necessary to the due execution of a will. Burritt ®. Silliman, 16 Barb. 198. In every case when a will is presented to the surrogate for probate, the onus probandi lies upon the person propounding it, and he must satisfy the conscience of the surrogate, that the instrument so propounded is the last will and testament of a free and capable testator. Lake ». Ranney, 83 Barb. 49. Chaffee v. Bap. Mis. Con., 10 Paige, 85. In re Will of Kellum, 52 N. Y. 517. See Hoyt o. Jackson, 2 Dem. 443. In ordinary cases, it is sufficient to prove a compliance with the formalities prescribed by statute, but when cir- cumstances of suspicion exist more is required, and proof should be given, to satisfy the court that the paper offered is in truth the will of the testator, declaring his intentions. Lake v. Ranney, 33 Barb. 49. If, however, the attestation clause is full, the signature genuine, the circumstances corroborative of due execution, and no evidence is given disproving a compliance in any particular, the presumption may be indulged that all the 294 Law of Evidence. provisions of the statute were complied with, though the witnesses do not recollect it, or what took place. In re Will of Kellum, 52 N. Y. 517. There should be some affirmative evidence that the tes- tator knew the contents of the will, and that it expressed his real intentions, — that his mind went with the will. Lake v. Eanney, 33 Barb. 49. The question of the due execution of a will is to be determined, like any other fact, in view of all the legitimate evidence in the case, and that no controlling effect is to be given to the testimony of the subscribing witnesses. Orser v. Orser, 34 N. Y. 52. Conselyea v. Walker, 2 Dem. 119. The proponent of a will, under this section, is not deemed to represent him as worthy of credence. Conselyea v. Walker, 2 Dem. 117. The material testimony of a witness, who has not been impeached as to general character, and who has been contradicted only as to particulars of his testimony, ought not to be discredited. Merchant's Estate, 1 Tucker, 151. As to the effect of a conflict of evidence, see McKinley v. Lamb, 56 Barb. 384. In re Forman, 54 Barb. 274. Where the witnesses swore on their direct examination to the contents of a printed deposition which set forth the observance of all the necessary legal formalities in the execution of a will, and on their cross-examination, on question and answer, swore that these formalities were not observed, probate was denied. Smith's Estate, 1 Tucker, 227. Where the due execution of a will is attempted to be made out by circumstantial evidence, it is proper to ask a witness what was the age of the testator at the time of the execution of the will. McKinley », Lamb, 64 Barb. 199. Code Civ. Pro., § 2618. 295 A will which the testator subscribed by mark may be proved, even when only one of the subscribing witnesses can be examined. Simpson's Will, 2 Redf. 29. Contra, Walsh's Will, 1 Tucker, 132. The testimony of persons, other than the subscribing witnesses, may be adduced to prove its due execution, although the subscribing witnesses are neither dead, nor non-resident, nor insane. Reeves v. Crosby, 3 Redf. 74. Where a subscribing witness swore he was not informed that the pai)er was the will of the decedent, and the other swore that she did not recollect what was said, but that she was satisfied at the time that she was witnessing a will, it was denied probate. Newton's Estate, 1 Tucker, 349. It is proper to allow contestant an examination of private papers of deceased in the administrators hands, bearing on the personal relations involved in the issue, family letters being first submitted to the court to ^determine their relevancy. Taylor Will Case, 10 Abb. N. S, 300. Photographs of last wills and testaments are not to be admitted as evidence. Merchant's Estate, 1 Tucker, 151. The evidence only of such witnesses as are acquainted with the handwriting of the decedent, can be received, as to whether the paper propounded, or its subscription, is in decedent's handwriting. Merchant's Estate, 1 Tucker, 151. A subscribing witness to a will is not disqualified for proving its execution by having taken from the executor, named in the will, a lease of personal property belonging to the estate. Seguine v. Seguine, 2 Barb. 885. In resisting the probate of an instrument, propounded as the last win and testament of a decedent, his heirs and 296 Law of Evidence. next of kin have the right to introduce any testimony which will be sufficient to satisfy the surrogate that the instrument propounded was not in force, as a valid will, at the death of the testator, named therein. Nelson v. McQiffert, 3 Barb. Ch. 158. Where upon the return day of citations issued upon an application to admit a will to probate, the depositions of the subscribing witnesses were taken before the surrogate in open court, it was held they were proofs as prescribed by the statute, and did not cease to be evidence by reason of the subsequent filing of objections by the contestants. Downey v. Downey, 16 Hun, 481. § 3636. Peobate ; How Far Conclusive as to Personalty. A decree, admitting to probat e a will of personal property, made as prescribed in this article, is conclusive, as an adjudication, upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal, or revoked by the surrogate, except that a deter- mination, made under section 2624 of this act, is conclusive, only, upon the petitioner, and each party who was duly cited or appeared, and every person claiming from, through, or under either of them. 2 E.. S., 62, § 29. The words "upon the petitioner and each ' ' were inserted by the laws of 1882. Sections 2626 and 2627 give substantially the same effect to the probate of wills of real and personal property, as vras provided in the Revised Statutes. In re Will of Gouraud, 95 N. T. 361. This section applies to personal, not to real, property. In re Will of Gouraud, 95 N. Y. 261. Dater v. Willson, 36 Hun, 549. The decree of a surrogate, having jurisdiction of the subject, declaring a will of personal property [duly executed, Code Civ. Pbo., § 2626. 297 is conclusive evidence, in a collateral action, of such execution. Vanderpoel v. Van Valkenburgh, 6 N. Y. 190. § 2637. Id.; as to Realty. A decree, admitting to probate a will of real property, made as prescribed in this article, establishes, presump- tively, only, all the matters determined by the surrogate, pursuant to this article, as against a party vs^ho was duly cited, or a person claiming from, through, or under him, or upon the trial of an action, or the hearing of a special pro- ceeding, in which a controversy arises concerning the will, or where the decree is produced in evidence, in favor of or against a person, or in a case specified in this section, the testimony taken in the special proceeding, wherein it was made, may be read in evidence with the same force and effect as if it was taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced. 2R. S., 59, §18. Letters testamentary, and the proof of a will before a surrogate, are only evidence in proceeding, arising out of the will, or where the parties claim under, or are connected with it. Carroll v. Carroll, 60 N. Y. 121. When the probate of a will, as a will of personal property, has been revoked, if it has also been proved as a will of real estate, the effect of that probate is not impaired. In re Will of Kellum, 50 N. Y. 298. The probate of a will is only presumptive evidence of its validity so far as it affects real estate. Dater ®. Willson, Se^Hun, 549. In re Will of Kellum, 50 N. Y. 298. In re Will of Gouraud, 95 N. Y. 256. 298 Law op Evidence. § 3639. Will Certified, ok Record Thereof, may be Read IN Evidence. The surrogate must cause to be indorsed upon, or annexed to, the original will admitted to probate, or the exemplified copy or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be. The will, or the copy or statement, so authenticated, the record thereof, or an exemplified copy of the record, may be read in evidence, as proof of the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sections. 2 R. S., 58, § 15, amended. "Three" substituted for ' ' two ' ' sections by the laws of 1882. Where the certificate of a surrogate as to the probate of a will states, that the same "was duly proved before " said surrogate according to law, as and for the last will and testament of the real and personal estate of the said deceased, which said last will and testament, and the proofs and examinations taken thereon are recorded in this office, it is sufficient. King «. King, 39 Hun, 220. § 3631. Records of Certain Wills Heretofore Proved; how FAR Evidence. The exemplification of the record of a will, proved before the judge of the former court of probates, and recorded in his office before the first day of January, in the year 1785, certified under the seal of the officer having custody of the record, must be admitted in evidence in any Code Civ. Pro., § 2631. 299 case, after it has been made to appear that diligent and fruitless search has been made for the original will. 2 R. S., 59, § 20. § 2632. The Same. An exemplified copy of the last will and testament of any deceased person, which has been admitted to probate, whether as a will of real or personal property, or of both, and recorded in the office of the surrogate in any county of this state, before the first day of January, in the year one thousand eight hundred and forty, shall be admitted in evidence in any of the courts of this state, without the proofs and examination taken on the probate thereof, and whether such proofs shall have been recorded or not, with like effect, as if the original of such will had been produced and proven in such court. And the recording of such will shall be evidence that the same was duly admitted to probate. The exemplification of the record of a will which has, before the first day of January, in the year one thousand eight hundred and forty, been proved before the surrogate or judge of probate, or other officer exercising the like jurisdiction of another state must, when certified by the officer having by law, when the certificate was made, custody of the record, be admitted in evidence as if the original will was produced and proved. An amendment of the laws of 1857, chap. 173 ; also of the laws of 1871, chap. 361, § 1. And now stands as amended by the laws of 1881, chap. 705. § 2651. Hearing. Upon the return of the citation, the surrogate must pro- ceed to hear the allegations and proofs of the parties. Law of Evidence. The testimony, taken upon the application for probate, of a witness who is dead, or without the state, or who, since his testimony was taken, has become a lunatic, or otherwise incompetent, must be received in evidence. Sections 34 and 36 of the 2 R. S., 62. The declarations of the testator, as to what was his age, are inadmissible, in proceedings to revoke probate for want of age of the testator. In re Paige, 62 Barb. 476. Though the probate is generally conclusive as to the validity of the will, it is of no force in a proceeding insti- tuted directly to impeach the probate itself. Collier v. Idley's Ex'rs., 1 Bradf. 94. § 2703. Recording Wills Proved in Other States, etc. Where real property, situated within the state, or an interest therein, which would descend to an heir, is devised or made subject to a power of disposition, by a will, valid, and duly executed for that purpose, under the laws of the state, of a person, who was, at the time of his death, a resi- dent elsewhere within the United States, and the will has been finally admitted to probate, by the judgment, decree, or order of a competent court, within the state or territory where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory, an exemplified copy of the will, or of the record thereof, of the judgment, decree or order, admitting the same to probate, and of the proofs, or of the record thereof, or a certificate of the substance of the testimony, if such a certificate is on file or recorded, or if no proofs, nor any certificate of the substance thereof is on file or recorded, a certificate of that fact may be recorded with the surrogate of any county of the state where the real property is situated. Code Civ. Pro., § 2703. 301 Such a record, or an exemplified copy thereof, is presump- tive evidence of tlie will, aad of the execution thereof, in any action or special proceeding relating to the real property. Laws of 1864, chap. 311, amended. Laws of 1872, chap. 680, amended. Laws of 1878, chap. 324. Where a will of real property was admitted to probate in another state, on proof which did not show that the will was executed according to the laws of this state, and there- after other proof was taken before the officer who admitted the will to probate, establishing the necessary facts, it was held that, as this last testimony formed no part of the proof on which the will was admitted to probate, it was not entitled to record in this state as presumptive evidence of the execution of the will. In re Langbein, 3 Civ. Pro. 236. Before such will can be recorded, it must appear, as required by section 2703 of the code, that it was executed according to the laws of this state. In re Shearer, 1 Civ. Pro. 455. And it should appear by the exemplified copy of the foreign record, that the will was admitted to probate by a court duly constituted under the laws of the state where the decedent resided. In re Shearer, 1 Civ. Pro. 455. § 2710. Examination of the Person Cited. Upon the attendance of a person, to whom a citation is issued, as prescribed in this article, he must be sworn to answer truly all questions put to him, touching the inquiry prayed for in the petition, and he may be examined fully and at large respecting any money or other property of the decedent, or of which the decedent had possession at the time of or within two years before his death. A refusal to be sworn, or to answer any question which the officer con- ducting the examination determines to be proper, is punish- 302 Law op Evidence. able by the officer or referee conducting tlie examination, in the same manner as a like refusal by a witness, subpoenaed to attend a hearing before the surrogate. In case the person, so cited, shall interpose a written answer, duly verified, tha the is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon, or special property therein, the surrogate shall dismiss the proceeding as to such property so claimed. An amendment of part of § 3, of the laws of 1870, chap. 394, and as amended by the laws of 1881. Under sections 2706-2714, the question of possession only, and not that of title, can be examined. In re Curry, 35 Hun, 331. § 2711. Additional Evidence. After the examination of all the parties cited is completed, unless one or more of them give security, as prescribed in the next section but one, either party may produce further evidence in like manner and with like effect, as upon a trial in the absence of the answer provided for in the last section. This is a new. provision. A trial is provided for by this section, and either party may produce further evidence than such as may be given by the person named and proceeded against in the petition. In re Slingerland, 36 Hun, 578. § 3734. VOUCHEKS TO BE PRODUCED. Upon an accounting by an executor or administrator, the accounting party must produce and file a voucher for every payment, except in one of the following cases : Code Civ. Pro., § 2734. 303 1. He may be allowed, without a voucher, any proper item of expenditure not exceeding twenty dollars, if it is supported by his own uncontradicted oath, stating posi- tively the fact of payment, and specifying when and to whom the payment was made, provided that all the items so allowed against an estate, upon all the accountings of all the executors or administrators, shall not exceed five hundred dollars. 2. If he proves, by his own oath or another's testimony, that he did not take a voucher when he made the payment, or that the voucher then taken by him has been lost or destroyed, he may be allowed any item, the payment of which he satisfactorily proves by the testimony of the person to whom he made it, or, if that person is dead, or cannot, after diligent search, be found, by any competent evidence other than his own oath, or that of his wife. But an allowance cannot be made, as specified in this section, unless the surrogate is satisfied that the charge is correct and just. 2 R. S., 92, § 54, and part of § 55. This section applies when a testamentary trustee accounts, as prescribed in title six, chapter eighteen. The accounting party is not bound to establish payments, for which he presents vouchers, unless denied by objections, and the burden of impeaching such payments is on the contestants. Boughton V. Flint, 74 N. Y. 476. If vouchers are produced, they are of themselves prima facie evidence of disbursements without any other proof, and should be admitted unless impeached. Metzger v. Metzger, 1 Bradf . 265. If an account can be allowed in any case without vouchers, and without proof other than the oath of the executor or administrator, where the separate items exceed $20 in amount, it seems it is where creditors refuse to give vouchers ; or where they have been stolen or destroyed, and he is unable to procure others. Willcox ». Smith, 36 Barb. 343. 304 Law of Evidence. Where there is a conflict of testimony as to certain payments, alleged, to have been made to the widow by the executor, and no vouchers are produced, such payments will not be allowed. Broome v. Vau Hook, 1 Redf. 444. § 2742. Eeeect of Judicial Settlement of Account. A judicial settlement of the account of an executor or administrator, either by the decree of the surrogate's court, or upon an appeal therefrom, is conclusive evidence against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time, of the following facts and no others : 1. That the items allowed to the accounting party, for money paid to creditors, legatees, and next of kin, for necessary expenses, and for his services, are correct. 2. That the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he was legally accountable. 3. That the money charged to the accounting party, as collected, is all that was collectible, at the time of the settlement, on the debts stated in the account. 4. That the allowances made to the accounting party for the decrease, and the charges against him for the increase, in the value of the property, were correctly made. 2 R. S., 94, § 65. The words, "alleged to the accounting party," in sub- division 1, are sustituted in the place of "the charges made in such account," and the words " charged to the accounting party as collected," in subdivision 3, are in the place of "stated in such account as collected." The effect of this section is the same as to infants as to adults. In re Hawley, 100 N. Y.206. In re Tilden, 89 N.Y. 434. Brick's estate, 15 Abb. 13. Phillips V. Dusenberry, 8 Hun, 348. Code Civ. Pro., § 2743. 305 It is only in respect to the matters enumerated in this section, that the accounting becomes conclusive evidence by statute. As respects any other matters, this provision does not operate to discharge the executor, but as to them, he is open to any remedies that may exist against him. Brick's Estate, 15 Abb. 13. Bank of Poughkeepsie v. Hasbrouok, 6 N. Y. 216. ^ Fulton «. Whitney, 66 N. Y. 557. So far as the accounts of executors as trustees are con- cerned, the decree is conclusive, only, as to the matters embraced in the accounts, or litigated, or determined on the settlement. Fulton V. "Whitney, 66 N. Y. 557. AfE'g, 5 Hun, 16. The decree determines nothing beyond the amount received, and paid out by him, and (unless the two amounts balance each other) the balance in his hands belonging to the estate, or due to him from it. Johnson v. Richards, 3 Hun, 454. Stiles V. Burch, 5 Paige, 133. This section is not a bar to plaintiff's claim against defendant (an administrator) in his individual capacity for moneys alleged to be in his hands, belonging to the plaintiffs. Bank of Poughkeepsie v. Hasbrouck, 6 N. Y. 316. The final accounting by executors or trustees, before the surrogate, is not a bar to an action brought for the enforce- ment of a trust of vfhich the executors or trustees become trustees ex maleficio. Fulton V. Whitney, 5 Hun, 17. AfE'd, 66 N. Y. 557. The surrogate's decree upon a final accounting of the executors is no bar to an action by executors against their co-executor, to compel him to pay a debt he ovres the estate, where it appears that the defendant had never rendered an account of the debt due from him to the estate, and the same was not embraced in the proceedings upon the final accounting. Wurts V. Jenkins, 11 Barb. 546. A surrogate's decree settling an executor's account before 20 306 ' Law of Evidence. the debts had been paid, and a surplus ascertained, is not a bar to such an action. Pittman «. Johnson, 15 Abb. N. C. 473. Where such a decree is put in evidence by defendant, in such action, it is competent to show by parol the ground of the decree orally assigned by the surrogate. Pittman v. Johnson, 15 Abb. N. C. 473. A decree of a surrogate is not such a final adjudication as to divest him of the power to open a decree made by him on the final accounting of an administrator. Sipperly ». Baucus, 34 N. T. 46. Upon an application to open a decree on accounting, error or fraud must be clearly shown, the lapse of time must be explained, and the application must be generally meritorious. Totten's Estate, 1 Tucker, 115. ' "When the settlement appears to have been final, and all the parties interested to have been before the surrogate, the presumption must be that the settlement embraced every- thing which was a proper subject of inquiry. Brown v. Brown, 53 Barb. 317. The decree of a surrogate, that the administrator pay a judgment, for services rendered to a deceased person, is conclusive upon the administrators. If they have any defense it should be made in that proceeding. Thayer ». Clark, 48 Barb. 243. Aff'd, 41 N. Y. 630. The administrator, having taken out letters on the citation of the next of kin, and at their instance having been called to account, it was held that a decree of the proper tribunal in the place of the intestate's domicile, and of the principal administration, was conclusive upon all parties thereto, in respect to assets then realized, or claims against the administrator which might then have been adjudicated. Churchill ». Prescott, 3 Bradf. 388. A trustee is never discharged as such by the passing of Code Civ. Pro., § 2742. 307 his accounts, and by a direction to continue to hold the remainder of the estate, as then ascertained, as a trustee. Dana's Estate, 1 Tucker, 113. The decree of a surrogate, having jurisdiction until opened or set aside, has the same conclusive effect as the judgment of any other court. In re Hood, 90 N. Y. 512. § 2756. Proof or Debt upon vp^hich Judgment, etc., has been Kendeeed. Where a judgment or decree has been rendered against an executor or administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and, except as prescribed in the next section, subject to the same defences, as if an action had not been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presumptive evidence of the debt, upon the hearing before the surrogate. Laws of 1837, chap. 460, part of § 72, as amended by the laws of 1843, chap. 172, and by the laws of 1847, chap. 298. During the pendency of an action against an executor for misappropriation of moneys belonging to the estate, he died, and his executor was substituted as party defendant. Judgment and costs were recovered and given, which the defendant was directed to pay out of the estate. The real estate of the deceased executor was sold by order of the surrogate. Held, that in the distribution of the proceeds, the surrogate properly disallowed the costs, as a claim, payable out of such proceeds. In re Estate of Fox, 92 N. T. 93. It is competent for a devisee of the real estate in question, or any persons claiming under him, to contest the legality or validity of a judgment obtained against the administra- tors, like any other claim or demand against the estate. Colson V. Brainard, 1 Kedf. 324. 308 Law of Evidence. Under the statute, the Judgment was only prima facie evidence of the debt, and does not change its nature or character, nor make lands descended to the heir liable for the costs. Ferguson «. Broome, 1 Bradf. 10. § 3757. The Last Section Qualified. The last section is subject to the following exceptions : 1. The debt, for which the judgment was rendered, can- not be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs. 2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduction of the amount claimed to be due upon a judgment or decree against the decedent, or against the executor, or administrator, any payment or counter-claim which might be allowed to him, or to the person under whom he claims, in an action founded upon the debt. New. When counter-claim interposed to judgment against administrator, not allowed. In re Estate of Meakim, 5 Civ. Pro. 421. § 3890. AXJTHOEITT OF ATTORNEY ; HOW PkOTED. The attorney's authority may be conferred orally or in writing, but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself or another. 2 R. S., 232, § 45. Under the Revised Statutes it read, "proved" either by the attorney himself or other com- petent testimony. Code Civ. Peo., § 2890. 309 There is no essential difference in the language of this section and the provision of the Revised Statutes. Eiekey ». Christie, 40 Hun, 281. When the authority to appear by attorney is not admit- ted, it must in all cases be proved. Wilcox V. Clement, 4 Den. 163. Where the authority is in writing, the hand-vs^riting of the client may be established presumptively. Bush v. Miller, 13 Barb. 481. Where the attorney is called upon to produce his power, the execution of it must be proved. Timmerman ®. Morrison, 14 Johns. 369. As to what is sufficient proof of the authority of an attorney to appear for a party, see Andrews v. Harrington, 19 Barb. 343. Armstrong v. Craig, 18 Barb. 387. Where an appearance has been put in for a party by another person, the authority of the latter cannot be presumed, but must be made to appear. Sparry «. Reynolds, 65 N. T. 179. The provision of the statute was designed simply to protect the opposite party from an unauthorized appear- ance. A waiver of proof by such party cannot affect the rights of the party for whom the appearance is made. Sparry v. Reynolds, 65 N. Y. 179. Where the defendant appeared by attorney who did not swear to his authority, and plaintiff appeared in person, held, that defendant could take no advantage of an unauthorized appearance in his behalf. Roberts «. Burrill, 3 T. & C. 30. But see Sparry v. Reynolds, 65 N. Y. 179. A general authority to collect implies an authority thus to appear. McMinn v. Richtmeyer, 3 Hill, 336. A justice cannot allow an appearance by attorney upon 310 Law of Evidence. information received out of court, as to the attorney's authority. Fanning v. Trowbridge, 5 Hill, 428. BeaTer v. Van Every, 2 Cow. 439. Where a party does not object to the authority of the party to appear, it will be deemed to have been admitted. Ackerman ». Finch, 15 "Wend. 652. An objection to the authority of the attorney to appear for a party is waived by the failure of the adverse party to raise it. Rickey v. Cliristie, 40 Hun, 378. After joining issue and going to trial, it is too late to call upon the defendant' s attorney to show his authority. Hirslifleld «. Landman, 3 B. D. Smitli, 208. Treadwell ». Bruder, 3 E. D. Smith, 596. Summary of Other Miscellaneous Sections. Judgment against sheriff, in an action for an escape, is conclusive evidence against the prisoner and his sureties. §161. Such judgment is evidence of the damages sustained by him. §165. The jurisdiction of a superior court is always to be presumed. §266. This section prescribes the mode of proof of service of summons. §434. As to proof of service of summons by publication, vs^hat affidavits and proof required. §444. An unaccepted offer to liquidate damages conditionally, or to compromise counter-claim cannot be proven upon the trial. §§ 737-739. As to the effect of the discovery of books, papers, etc. §809. Evidence of the right to exemption from service on jury. §§ 1031, 1083, 1128. 312 Law of Evidence. What evidence a judgment creditor must furnish to be entitled to redeem real property. § 1464. What evidence required of a mortgage creditor. § 1465. What of an executor or administrator. § 1466. What evidence required on new trial in action to recover the possession of real property. § 1530. In an action by or against a corporation, when proof of corporate existence unnecessary. § 1776. In an action by or against a corporation, when officers and agents may be compelled to testify. § 1805. Effect of final judgment as against an heir or devisee. § 1821. A judgment in an action against an executor, etc., is not evidence of assets. § 1824. An executor's or administrator's account, in an action against heirs, is presumptive evidence, etc. § 1848. In an action for a penalty or forfeiture, a judgment is not barred by a former collusive recovery therefrom. § 1896. When an action for a penalty or forfeiture bars another action. § 1962. When statement filed with the clerk of persons engaged in the transportation of passengers or property, conclusive. § 1945. Code Civ. Peo. — Stjmmaet. 313 An assessment of damages by the relator on mandamus, bars an action for a false return. § 3088. A final order, made in summary proceedings, is not a bar to an action of ejectment to recover property affected thereby. § 3264. The payment and acceptance of a fine, in proceedings for contempt, constitute a bar to an action by the aggrieved party to recover damages for the loss or injury. § 3384. A final order made in proceeding to discover the death of a life- tenant is presumptive evidence, only, in an action by a person evicted. § 3319. Jurisdiction of a surrogate' s court is presumed, and may be conclusively established. § 2473. Proof of authority of an ofiicer to act for surrogate, when surrogate disqualified. §§ 2487-2489. Proof of service of citation, subpoena, etc., in surrogate's court. § 2532. Manner of taking the testimony of aged, sick, or infirm witness in surrogate' s court. §§ 2539, 2540. A bequest, etc., does not disqualify or excuse a witness from testifying respecting the execution of a will. S 3544. What evidence required on probate of a will. Effect of a decree for probate. §§ 2619. 2620. See ante, § 2618. § 2646. 314 Law op Evidence. Effect of decree or record thereof for probate of heirship. § 2657. How papers recorded are authenticated. §§ 2704, 2705. What decree for payment, and distribution conclusive of. § 3743. What proof necessary for a decree for the sale of the real property of a deceased person. § 3759. When the due appointment of a guardian ad litem must be presumed, and how disapproved. § 2785. The effect of a decree made upon a judicial settlement of the account of a testamentary trustee. § 2813. The effect of a decree made upon a judicial settlement of the account of a guardian, appointed by will, or by deed. § 2857. Effect of judgment as presumptive evidence, etc., in jus- tice's court, when the defendant is not personally served, but an attachment is issued. § 2918. A constable's return, in an action on an undertaking, given in an action for a chattel in a justice' s court, is pre- sumptive evidence. § 3931. A constable's return of service of subpoena is presump- tive evidence of the facts therein stated. § 2970. An ex parte affidavit shall not be received in evidence on trial without the consent of both parties, except where specially allowed by law. § 3004. Code Civ. Peo. — Stjmmaet. 315 Upon an appeal from a judgment, a justice need not return the evidence, or any part thereof, unless required so to do by a special order of the appellate court. § 3053. What required in proof of service of precept on the ov7ner of an animal seized as an astray. § 3089. ' The' entries in the docket-book of a justice of the peace, deposited with the town or city clerk, are presumptive evi- dence of the matters of fact stated therein. § 3148. In an action on a Judgment of a justice, his original docket-book is presumptive evidence of any matter entered therein, as prescribed by law. § 8155. Proof necessary to obtain a warrant of attachment in the New York Marine Court. § 3169. FORMS. SuBPCENA TO Witness. (§ 852.) The People of the State of New York, to A. B., Greeting : We command you, that all business and excuses being laid aside, you and each of you, appear and attend before the justices of the supreme court (or some one of them), at a circuit court, to be held at the city and county hall in the city of Buffalo, in and for the county of Erie, on the 20th day of August, 1887, at ten o' clock in the forenoon, to tes- tify and give evidence on the part of the plaintiff, in a certain cause now pending in the supreme court, then and there to be tried, between C. B., plaintiff, and E. F., defendant,* and, for a failure to attend, you will be deemed guilty of contempt of court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and for- feit fifty dollars in addition thereto, f Witness, Hon. William Caruthers, one of the justices of our supreme court, the 8th day of August, 1887. W. F. R., Clerk. M. N., Attorney. II. Stjbpcena Buces Tecum. (§ 852.) (The same as in form I, inserting at the *), and that you bring with you, and produce then and there a certain book, etc., (here describe with particularity). 318 Law op Evidence. III. SuBPCENA Ticket. (§ 852.) By virtue of a writ of subpoena, to you directed, and herewith shown to you, you are commanded, that all busi- ness, etc., (here proceed as in form I, to the f)- Dated this' 8th day of August, 1887. M. N., Attorney. To A. B. IV. SuBPCENA Ticket Duces Tecum. (§ 852.) Insert the '■'■duces tecwm'''' clause in the subpcsna ticket, as in the subpoena. Subpoena eoe Reference. (§ 854.) The People of the Stp,te of New York, to A. B., Greeting : We command you, that all and singular business and excuses being laid aside, you and each of you appear and attend before S. W., referee, duly appointed under a rule of the supreme court, on the 8th day of August, 1887, at ten o'clock in the forenoon, at his office in the city of Buf- falo, to testify and give evidence in a certain cause now pending in the supreme court, (and proceed to the end, as in form I.) VI. Subpoena Ticket for Reference. (§ 854.) By virtue of a writ of subpoena, to you directed and hereby shown to you, you are commanded that all business, etc. Code Civ. Pro. — Forms. 319 (Here proceed as in form V, to the f in form 1.) To A. B. M. N., Attorney. VII. Affidavit op Service op Subpoena. (§ 852.) Title. Orleans County, ss.: R. S., having been duly sworn; says : That on the 10th day of August, 1887, he personally served, at the village of Holley, the within subpcEna upon A. B., the person named therein, as witness, by then and there exhibiting to the said A. B. the said original sub- pcena, and delivering to him a copy thereof (or, a subpoena ticket containing its substance), and paying {or, tendering) to the said A. B., at the time and place aforesaid, dollars as his fees for traveling to, and returning from, the place named in the said subpoena, and for one day' s attend- ance as such witness. Sworn to before me this, etc. R. S. VIII. Affidavit for Attachment against Witness. (§ 855.) Title. Orleans County, ss. C. D., having been duly sworn, says : I. That he is the plaintiff in the above entitled action. II. That on or about the 8th day of Augast, 1887, a sub- poena was duly issued and served on one A. B. , requiring him to appear and attend as a witness on the part of the plaintiff, before the Justices of the supreme court, or some one of them, at a circuit court, on the 20th day of August, 1887, as appears by the proof of service of the subpoena hereto annexed. III. That the said A. B. has failed and neglected to attend the said circuit court, as required pursuant to the terms of said subpoena, and is not in attendance at, or upon said court. IV. That the said A. B. is a necessary and material witness for the plaintiff in this action, without the benefit of whose testimony the said plaintiff cannot safely proceed to the trial of this action as this deponent is advised by M. 320 Law of Evidence. N., Esq., the plaintiff's counsel herein, wlio resides in the city of Buffalo, N. Y., after fully and fairly stating to him what is expected to be proved by said witness, and as deponent verily believes. Wherefore deponent asks that a warrant of attachment issue to the sheriff of the county of Erie to apprehend and produce said witness before the said circuit court where his attendance is required. Sworn to before me this, etc. C. D. IX. Warrant eoe Apprehension oe Witness. (§ 855.) The People of the State of New York, to the Sheriff of the County of Erie, Greeting : We command you to apprehend A. B., and to bring him forthwith before our circuit court, held in and for our county of Erie, at the city and county hall, in the city of Buffalo, to answer for his misconduct in failing and neglect- ing to obey our writ of subpoena, commanding him to appear before our circuit court, at the city and county hall aforesaid, on the 20th day of August, 1887, to be examined, testify, and give evidence on the part of the plaintiff, in a certain action now pending between C. D., plaintiff, and E. F., defendant, and have you then and there this writ. Witness, Hon. William Caruthers, one of the justices of our supreme court, the 21st day of August, 1887. [l. S.J W. F. E., Clerk. M. N"., Attorney. Allowed this 21st day of August, 1887. William Caruthers. X. Warrant for Commitment op Witness. [§§ 856 to 858.] The People of the State of New York, to the Sheriff of the County of Erie, Greeting : Whereas, (here specify particularly the cause of the commitment.) Code Civ. Pko. — Forms. 321 Now, therefore, we command you to commit the said A. B., to jail, there to remain until he submits to do the act which he was required to do as aforesaid, or is discharged according to law. Witness : (conclude as in preceding form.) XL Affidavit for Discharge of Witness from Arrest. (§§ 861, 862.) Title. Orleans County, ss.: A. B., having been duly sworn, says: That on or about the 10th day of August, 1887, he was duly and in good faith subpoenaed (or, ordered) to attend before one of the justices of the supreme court at a circuit court, on tb.e 20th day of August, 1887, at ten o'clock in the forenoon, for the purpose of being examined as a witness in the above entitled action, and that while going to {or, while remaining at, or, while returning from) the place mentioned in said subpoena, he was arrested by N. O., the sherff of Erie County, under an order of arrest, dated the 19th day of August, 1887, issued in a civil action wherein C. D. is the plaintiff, and E. F. the defendant, and that he is held and detained by said sheriff in his custody under said order of arrest. Sworn to before me this, etc. A. B. XII. Order Discharging Witness from Arrest. (§ 861.) At a Special Term of the Supreme Court, held at the City and County Hall in the City of BuflEalo, on the 20th day of August, 1887. Present, Hon. William Caruthers, Justice Presiding. Title It having been made to appear by affidavit that A. B. was duly and in good faith subpoenaed {or, ordered) to attend, for the purpose of being examined in the above entitled action, and that his attendance, in accordance with said subpoena, could lawfully be enforced by attachment {or, by commitment), and that after having been so subpcsnaed, 21 322 Law of Evidence. and while going to (or, remaining at, or, returning from) the place mentioned in said subpoena, where he was rec[uired to attend, he was arrested by the sheriff of Erie County, in a civil action, under an order of arrest therein granted by T. C, one of the justices of the supreme court, and dated the 19th day of August, 1887, and on motion of C. M., counsel for the said A. B. Ordered, that the said A. B. be and is hereby discharged from said arrest. (If made by a judge out of court omit the caption.) XIII. Affidavit by Witness, when Eequired by Shbeiff, TO Pbevent Arbest. (§ 864.) Title. Orleans County, ss. : A. B., having been duly sworn, says : I. That on or about the 10th day of August, 1887, he was legally subpoenaed (or, ordered) to attend before one of the justices of the supreme court at a circuit court {or, before S. W., referee, duly appointed to hear, try and determine the matter in the above entitled action) on the 20th day of August, 1887, at ten o'clock in the forenoon, for the purpose of being examined as a witness in an action in which C. D. is plaintiff, and E. F. is defendant, on the part of the plaintiff. II. That he is going before said court for the purpose of attending as such witness {or, that he is attending as such witness before said court), {or, that he is returning from attendance as such witness before said court). III. That he was not so subpoenaed {or, ordered) by his own procurement, with the intent of avoiding arrest. Sworn to before me this, etc. A. B. XIV. SUBP