bury, 1 Duer, 660; S. C. 11 N. Y. Leg. Obs. 287, to the contrary, notwithstanding.

f. Fees. A party to an action who is made a witness by the opposite party, is entitled to fees as a condition to his attendance, the same as other witnesses. Hewlett v. Brown, 1 Bosw. 655; S. C. 7 Abb. 74; Woods v. De Figaniere, 1 Rob, 607, 641; S. C. 25 How. 522; 16 Abb. 1; Draper v. Henningsen, 1 Bosw. 611, 614; Taggard v. Gardner, 2 Sandf. 669; S. C. 2 Code R. 82.

g. Subpoena duces tecum.-A party to an action may, at the instance of the adverse party, be compelled by the process of subpona duces tecum not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpoenaed, is as much bound to produce books and papers in his possession, as evidence, as to testify orally, and his neglect of either is a contempt of court. Bonesteel v. Lynde, 8 How. 226; S. C. Aff'd, id. 352. See, also, Garighe v. Losche, 6 Abb. 284 (n.); S. C. 14 How. 453, sub nom. Gaughe v. Laroche; 6 Duer, 685; Woods v. De Figaniere, 16 Abb. 159; S. C. 1 Rob. 659; People ex rel. Valiente v. Dyckman, 24 How. 222; Brett v. Bucknam, 32 Barb. 655. h. Disobedience of subpoena.-If a witness, without good excuse, neglects to obey a subpoena duces tecum with which he is served, by failing to produce, upon the trial,

| the books or papers specified therein, he is liable to the injured party for all damages sus tained by him in consequence thereof. Lane v. Cole, 12 Barb. 680; Hasbrouck v. Baker, 10 Johns. 248; Heermans v. Williams, 11 Wend. 636; Cogswell v. Meech, 12 id. 147; Courtney v. Baker, 3 Denio, 27.

i. Books of a corporation. — The president, or other officer of a corporation which is a party to an action, is not bound to produce, on the trial, the books and papers of the corporation, under a subpœna duces tecum, issued by the adverse party. He has no such property in, or control over them, as gives the right or makes it his duty to produce them. Their proper place is the office in which the business is transacted to which they relate. La Farge v. La Farge Insurance Co. 14 How. 26; S. C. 6 Duer, 680. But it is otherwise with the officers of an unincorporated joint stock company. Woods v. De Figaniere, 16 Abb. 159; S. C. 1 Rob. 659.

j. Examination of a corporation.— Where the defendant is a corporation, the plaintiff cannot have an order for the examination of such defendant as a witness, by its officers. This and the following section have reference to the examination of parties, and not to the examination of the agents, officers or servants of parties to a suit. It was not the intention of the legislature to authorize the examination of a corporation as a witness. Goodyear v. Phænix Rubber Co. 48 Barb. | ̧522.

§ 391. [345.] (Am'd 1849.) Such examination also allowed before trial; proceedings therefor.

The examination, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. 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.

a. Before issue.-A party cannot be examined as a witness under this section before issue joined, unless a case is made justifying an order for the taking of his testimony de bene esse. Bell v. Richmond, 50 Barb. 571; S. C. 4 Abb. N. S. 44; Norton v. Abbott, 28 How. 388. See Roche v. Farran, 12 N. Y. Leg. Obs. 121. See, contra, Mc Vickar v. Greenleaf, 4 Rob. 657; S. C. 30 How. 61; 1 Abb. N. S. 452, sub nom. McVickar v. Ketchum; Fullerton v. Gaylord, 7 id. 551; Duffy v. Lynch, 36 How. 509.

b. Matter of right.- An order for the examination of the adverse party, under this section, is allowed as a matter of right, before trial, upon showing that the action is at issue, and that the applicant desires such examina

tion as to matters material to the issue. Cook v. Bidwell, 29 How. 483; S. C. 17 Abb. 300; Fullerton v. Gaylord, 7 Rob. 552. And it is error to deny the application without good cause shown for not permitting the examination. Green v. Wood, 15 How. 338; S. C. 6 Abb. 277.

c. The application.-On an application, under the Code, by a party, for the examining the adverse party as a witness in the action, he must present an affidavit stating:

1st. The nature of the action and the plaintiff's demand;

2d. If the application be made by the defendant, then the nature of his defense;

3d. Name and residence of the proposed witness. Greene v. Herder, 7 Rob. 455; S. C.

30 How. 210; 4 Rob. 655. See Van Rensselaer v. Tubbs, 31 How. 193; Norton v. Abbott, 28 How. 388. Upon such affidavit the party may apply for such an order as is mentioned in the Revised Statutes (2 R. S. 392, § 3) in relation to the conditional examination of witnesses, and also for the summons provided for in § 10 of the same statute. Ib.

d. Service, order and summons.— The order so obtained should be served upon the attorneys of all the parties who have appeared, or if the time of appearance has not yet expired, then upon all adverse parties themselves who have not appeared; and the summons should also be served upon the proposed witness (in the same manner as a subpœna, and a like amount of fees paid). Ib.

e. Non-appearance of witness.- If the proposed witness fails to appear, the party who has procured the order and summons, may, upon a proper affidavit, obtain a warrant directing the sheriff to apprehend such witness and bring him before the judge, or may, on a proper affidavit and notice, have an order directing the pleading of the recusant witness to be stricken out. lb.

§ 392. [346.] (Am'd 1849.)

f. Service must be within the State. The service of a judge's order and of a notice to attend for examination in another State, is utterly void and ineffectual for any purpose. Appleton v. Appleton, 50 Barb. 486. g. The examination.-The limit of the examination of an adverse party is discretionary with the judge. It is in effect a cross examination and governed by the same rules. Plato v. Kelly, 16 Abb. 188.

h. Refusal to answer.-Where the witness, on such examination, refuses to answer a legal and pertinent question, it is the duty of the judge to issue his warrant for the commitment of such witness; an order merely adjudging the witness to be in contempt is unauthorized by law, and for that reason is not appealable. People ex rel. Val iente v. Dyckman, 24 How. 223.

The fact that a witness, by giving testimony may thereby render himself liable to a civil suit, will not excuse him from testifying, nor where the testimony is material, can he refuse to answer on the ground that his testimony will tend to disgrace him. Taylor v. Jennings, 7 Rob. 581.

Party, how compelled to attend.

The party to be examined, as in the last section provided, may be compelled to attend in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.

a. Compelling attendance of witness.-To compel the attendance of a party as a witness, under this section, a summons should be issued by the judge, such as was issued under the Revised Statutes (2 R. S. 393, § 10), upon a conditional examination. Van Rensselaer v. Tubbs, 31 How. 193; Gaughe v. Laroche, 14 id. 451; S. C. 6 Abb. 284, sub nom. Garighe v. Losche; Bleecker v. Carroll, 2 id. 82; Draper v. Henningsen, 1 Bosw. 614. But see, opposed, Leeds v. Brown, 5 Abb. 418. And his fees for attending as a

witness must be paid. Taggard v. Gardner, 2 Sandf. 669; S. Č. 2 Code R. 82; Draper v. Henningsen, supra.

b. At his peril.-A party examines an adverse party under §§ 390, 391 and 392, at his peril; and whatever evidence is taken, before or at the trial, without objection, is competent, and may be used, notwithstanding the restriction of § 399. Barry v. Galvin, 37 How. 310; Greene v. Herder, 7 Rob. 455, 461; S. C. 30 How. 210.

§ 393. [348.] (Am'd 1849.) Testimony of party may be rebutted. The examination of the party thus taken may be rebutted by adverse testimony.

a. Impeaching witness. - Where a party calls an adverse party as a witness, he thereby represents him as deserving credit, and is precluded from denying it by introducing evidence for the purpose of impeaching him, showing either that his general character for truth is bad, or that he has made previous contradictory statements. Pickard v. Collins, 23 Barb. 444; Barry v. Galvin, 37 How. 310.

b. Contradicting witness.-The party calling such witness may, however, by any pertinent evidence, show a fact to be otherwise than as testified to by such witness.

d. Conflicting testimony. - Where, on a question of fact, the plaintiff's and defendant's testimony is entirely contradictory, a letter written by one of the parties previous to the commencement of the action, flatly contradicting his testimony, will be decisive in favor of the other party. Boyd v. Colt, 20 How. 384. If the plaintiff and the defendant

are both men of good character, and of equal credibility, and both are sworn and contradict each other upon a question of fact, so that their evidence cannot be reconciled, the case will be evenly balanced, in the absence of other testimony, and the complaint will be dismissed. Losee v. Morey, 57 Barb. 561

§ 394. [347.] (Am'd 1849.) Effect of refusal to testify.

If a party refuse to attend and testify, as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer or reply may he stricken out.

a. Punishment for contempt. — In order to authorize the punishment of a party for contempt in refusing to be examined under the preceding sections of this chapter, it need not appear that the misconduct was calculated to, or did defeat, impair, impede, or prejudice the rights or remedies of any party as required (2 R. S. 538, § 20) in ordinary cases of contempt. Woods v. DeFiganiere, 1 Rob. 607; S. C. 16 Abb. 1; 25 How. 522.

b. Proceedings to punish for contempt, or to strike out a pleading, must be founded on affidavits served on eight days' notice. The service of a mere notice to attend as a witness without summons, and without payment of witnesses' fees, will not warrant the punishment for contempt of a party refusing to attend and testify. Hewlett v. Brown, 1 Bosw. 655; S. C. 7 Abb. 74. See Norton v. Abbott, 28 How. 388.

c. Waiving default.-A default for not attending and submitting to an examination may be waived by the subsequent acts of the adverse party in postponing the examination from time to time, or failing to attend. Satterlee v. DeComeau, 7 Rob. 661; Gardiner v. Peterson, 14 How. 513.

d. Previous engagement.—A motion for an order striking out the answer of a defendant for non-attendance was denied, where, after he was subponed, and before the time fixed for his examination, in pursuance of a previous arrangement, he sailed for California. Bennett v. Hall, 10 N. Y. Leg. Obs. 191.

e. Staying proceedings.-This section. does not give the court the power to stay the party's proceedings in the action, where he refused or neglects to attend for examination, before the trial. Appleton v. Appleton, 50 Barb. 486.

§ 395. [349.] (Am'd 1849, 1863.) Testimony by a party, not responsive to the inquiries, may be rebutted by the oath of the party calling him.

A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, subject to the same rules of examination as other witnesses. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, subject to the same rules of examination as other witnesses, and shall be so received.

§ 396. [350.] Persons for whom action is brought or defended may be

examined.

A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination as if he were named as a party.

One who is a mere surety, to enable another son for whose benefit the action is prosecuted to prosecute or defend an action, is not a per- or defended. Jessop v. Miller, 1 Keyes, 321.

§ 397. (Am'd 1851, 1852.) Examination of co-plaintiff or co-defendant. A party may be examined on behalf of his co-plaintiff or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever, in the case mentioned in sections 390 and 391, one of several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defense, and shall be so received.

This section "has had no force or applica- | v. Card, 39 N. Y. (12 Tiff.), 321, 322; S. C. tion, in any possible case, since 1860." Card 7 Trans. App. 144.

CHAPTER VII.

Examination of Witnesses.

SECTION 398. No witness to be excluded by reason of interest. 399. To whom last section inapplicable.

§ 398. [351.] (Am'd 1869.) No witness to be excluded by reason of in

terest.

No person offered as a witness in any action or proceeding in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the 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.

a. Evidence in criminal prosecutions. In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offenses, and in all proceedings in the nature of criminal proceedings in any and all courts, and before any and all officers and all persons

acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him. Laws of 1869, ch. 678.

I. KNOWLEDGE ACQUIRED PROFESSIONALLY BY PHYSICIAN. a. Revised Statutes. -"No person | duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon." 3 R. S. 690, § 104.

b. Reference - testimony rejected. An action was commenced for a divorce, which was referred. On the examination the referee compelled a physician to disclose information obtained by him in a professional

character, held, that such testimony must be rejected by the court. Hanford v. Hanford, 3 Edw. Ch. R. 468; Johnson v. Johnson, 4 Paige, 460; S. C. overruled, 14 Wend. 641; holding, that the privilege was that of the party, and not of the witness. It is the same as the case of an attorney. If the party waives his privilege by not objecting, the witness may be examined. 1 Phil. Ev. 108; 1 Stark. 104.

c. Abortion, not privileged. This section (104), does not prevent a physician consulted as to the means of procuring an abortion, from giving his testimony. The de

fendant has no right to object that the communication was privileged. Hewitt v. Prime, 21 Wend. 79.

d. Rule. The common law did not render such communications privileged. The "information spoken of by the statute, clearly has reference to, and forbids the disclosure of all facts which come within the physician's knowledge in a professional case; it is not confined to communications made to the physician. The patient, and not the physician is to be protected. It is not necessary that the technical relation of patient and physician should exist, if the visit was regarded and acted upon as professional, by the person attended, it is sufficient to bring the

case within the statute. People v. Stout, 3 Park. 670.

e. Not applicable to physician of deceased person.-The provisions of this statute are not applicable to the physician of a deceased person, in a testamentary cause concerning the probate of a will made by such deceased patient. Allen v. Public Administra tor, 1 Bradf. 221.

f. Action by physician for services. This section does not prevent a physician, in an action by him for his services, from testifying as to the nature of the disease and the general character of the treatment used by him. Kendall v. Grey, 2 Hilt. 300.

II. KNOWLEDGE ACQUIRED PROFESSIONALLY BY MINISTERS. a. Revised Statutes.-No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined oy the rules or practice of such denomination. 3 R. S. 690, § 103.

b. Admissions must be in the

course of discipline.-This statute does not protect communications or admissions made to a clergyman or priest, unless they are made in the due course of discipline of his church. This is the rule, even where they relate to a criminal offense. People v. Gates, 13 Wend. 312.

III. COMMUNICATIONS

a. Rule.-The true doctrine is, that communications made to an attorney in the course of any professional employment, relating to the subject of the employment, and which may be supposed to have been drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications. Williams v. Fitch, 18 N. Y. (4 Smith), 546; Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528, 595. See, also, Cromack v. Heathcote, 2 Brod. & Bing. 4; Greenough v. Gaskell, 1 Myln. & Keen. 98; Rochester City Bank v. Suydam, 5 How. 254; S. C. 3 Code R. 249; Herring v. Clobery, 1 Phillip's R. 91; Brandt ex dem. Van Cortlandt v. Klein, 17 Johns. 335; Coveney v. Tannahill, 1 Hill, 33; Parker v. Carter, 4 Munf. (Va.), 273; March v. Ludlum, 3 Sandf. Ch. 35; S. C. 4 N. Y. Leg. Obs. 216.

b. Opinion given without charge.— The fact that the opinion was given without compensation does not affect the rule. March v. Ludlum, 3 Sandf. Ch. 35; S. C. 4 N. Y. Leg. Obs. 216.

c. Privilege may be waived.-If the client waives his privilege (and this he will do if he calls his attorney as a witness and examines him as to the confidential communications, but not otherwise), in which case the legal adviser will be compelled to disclose his knowledge obtained confidentially. This is the rule even where the interest in the subject-matter, respecting which the confidential communication was made, has passed to a third person, and he objects to the disclosure. Benjamin v. Coventry, 19 Wend. 353. The privilege is not waived from the fact that the

TO COUNSEL.

legal adviser is called as a witness, but that he is examined as to confidential communications. Benjamin v. Coventry, supra.

d. Duration of the privilege. — A legal adviser cannot, even after he ceases to act as such, disclose facts communicated to him professionally. But after the relation of attorney and client ceases, if the client voluntarily repeats any such privileged communications to such attorney, they do not continue to be privileged. Yordan v. Hess, 13 Johns. 492. The privilege endures forever, unless removed by the client. Bank of Utica v. Mersereau, 3 Barb. Ch. 528; Greenl. Ev. 278, § 243.

e. Extent of the privilege.-It extends only to information derived from the client, as such, either by oral communications, or books or papers shown to him, or put into his hands by his client, and not to information derived from other persons or sources. Spenceley v. Schulenburgh, 7 East. 357; Crosby v. Berger, 11 Paige, 377; S. C. 4 Edw. Ch. 210; 3 id. 538. See, also, People ex rel. Mallory v. Benjamin, 9 How. 419; Jackson ex dem. King v. Burtis, 14 Johns. 392; Jackson ex dem. Dale v. Denison, 4 Wend. 558; Bogert v. Bogert, 2 Edw. Ch. 399.

f. Several clients interested.—Where the privilege belongs to several clients, one alone cannot waive it, and where it is the express wish of some of them that it should not be waived, a majority cannot do so. Bank of Utica v. Mersereau, 3 Barb. Ch. 533, 596; Whiting v. Barney, 38 Barb. 393; S. C. 27 How. 600 (n.); 30 N. Y. 3 (Tiff.), 330.

g. Communication made to attorney's clerk.-A communication made to