filed. A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides.

L 1847, ch. 470, 20, am'd.

$ 826. [Amended, 1877.] Publication, where no newspaper, etc., in county. Where a notice, or other proceeding. is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by

law.

2 R. S. 552, 10; Dolbeer v. Casey, 19 Barb. 155.

§ 827. [Amended, 1877.] Special references in certain cases. — Where a provision of this act authorizes the court to approve an undertaking, or the sureties thereto; or to make an examination or inquiry; or to appoint an appraiser, receiver, or trustee; it may direct a reference to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the 31st day of December, 1846, a matter was referable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law.

Modelled upon first sentence of L. 1847, ch. 280, 77.

19

CHAPTER IX.

EVIDENCE.

TITLE I. GENERAL

REGULATIONS RESPECTING

EVIDENCE, AND THE COMPETENCY AND
MODE OF EXAMINATION OF A WITNESS.
ATTENDANCE AND

TITLE II.-- COMPELLING

THE

TESTIMONY OF A WITNESS.

TITLE III. - DEPOSITIONS.

TITLE IV. - DOCUMENTARY EVIDENCE.

TITLE V.-MISCELLANEOUS PROVISIONS.

TITLE I.

General regulations respecting evidence, and the competency and mode of examination of a witness. ARTICLE 1. Competency of a witness; evidence in particular cases. 2. Administration of an oath or affirmation.

ARTICLE FIRST.

COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR

CASES.

SEO. 828. No witness to be excluded by reason of interest, etc.

829. When party, etc., cannot be examined.

830. Id.; husband or wife of party, etc.

831. When husband and wife not competent witnesses. Id.; when competent.

832. Conviction for crime, not to exclude witness: how conviction proved.

833. Clergymen, etc., not to disclose confessions.

834. Physicians not to disclose professional information.

835. Attorneys and counsellors not to disclose communications.

836. Application of the last three sections.

837. When witness not excused from testifying.

838. Evidence of party may be rebutted.

839. Admission by member of corporation.

840. Seal, presumptive evidence of consideration.
841. Presumption of death in certain cases.

8828. 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 witness, 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(1) of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended.

Co. Proc., 1398; and L. 1867, ch. 887, 1. (1) Matteson v. N. Y. C. R. R. Co., 62 Barb. 364; Birdsall v. Patteson, 51 N. Y. 43; Southwick v. Southwick, 49 id. 510; Taylor v. Jennings, 7 Rob. 581; Wehrkamp v. Willett, 1 Keyes, 250; Southwick v. Southwick, 1 Sweeny, 47; 49 N. Y. 510; and 9 Abb. Pr. N. S. 109; Minier v. Minier, 4 Lans. 421; Dennis v. Crittenden, 42 N. Y. 542.

$829. [Amended, 1877.] When party, etc., cannot be examined. Upon the trial of an action or the hearing upon the merits of a special proceeding, 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 executor, administrator, or 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 transac tion or communication between the witness and the deceased person or lunatic; except where the executor. administrator, survivor, committee, or person so deriving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication.

Substitute for Co. Proc.. 399. Bennett v. Austen, 5 Hun, 536; Mulqueen v. Duffy, 6 id. 299; Jacques v. Elmore, 7 id. 675; Tooley v. Bacon, 8 id. 176; Brague v. Lord (Ct. App.), 15 Alb. L. J. 66. See, also, Mattoon v. Young, 45 N. Y. 696; Buck v.Stanton, 511d.624; Cary v. White, 59 id. 336; Hier v. Grant, 47 id. 278; Smith v. Hazard, 4 Hun, 418; Denham v. Jayne, 31d. 614; Parhan v. Moran, 4 Hun, 717; Hatch v. Peugnet, 64 Barb. 189; Sanford v. Sanford, 61 id. 293; Card v. Card, 7 Trans. App. 147; Angevine . Angevine, 48 Barb. 417; Tímon v. Claffy, 45 id. 438; Williston v. Williston, 41 id. 635; Van Alstyne v. Van Alstyne, 28 N. Y. 378; Simmons v. Sissons, 26 1d. 264; Hight v. Sackett, 34 id. 447; Schenck v. Warner, 37 Barb. 238; Wildey v. Whitney, 25 How. 75; Penny v. Black, 6 Bosw. 50. Head . Teeter, 10 Hun, 548; Tilton . Ormsby. id. 7: Brague v. Lord, 2 Abb. N. C. 1: Somerville v. Crook, 9 Hun, 664; Hobart v. Hobart, 62 N. Y. 80; Alexander . Dutcher, 7 Hun, 439, affd. in Ct. of App. 16 Alb. L. J. 224; Andrews r. Nat. Bk.,7 Hun, 20; Haughey v. Wright, 12 id. 179; Cornell v. Cornell, id. 312; Le Clare v. Stewart, 8 Id. 127; Miller v. Adkins, 9 id. 9; Brown v. Richards, 20 N. Y.472; Potter t. Bushnell, 10 How. 94; Dewey v. Goodenough, 56 Barb. 54; Green v. Edick, 56 N. Y. 613.

$830. [Amended, 1879.] When party, etc., cannot be examined. When party has died. Where a party has died since the trial of an action, on the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him.

New.

831. [Amended, 1879, 1880.] When 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 allegation of adultery, except to prove the marriage. 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. (1) In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. (2)

L. 1867, ch. 887, 122 and 3 (7 Edm. 198), am'd. Hicks . Bradner, 2 Abb. C App. Dec, 362. (1) Southwick r. Southwick, 9 Abb. N. S. 109; 8. C., 49 N. Y. 510. (2) s. c., 35 How. 118.

832. [Amended, 1879.] Conviction for crime not to exclude witness; how conviction proved. A person, who has been convicted of a crime or misdemeanor is notwithstanding a competent witness in a civil or criminal action or special proceeding; but the conviction 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.

§ 833. Clergymen, 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 professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs.

2 R. S. 406, 72, am'd. People v. Gates, 13 Wend. 311.

834 Physicians not to disclose professional 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.

2 R. S. 406, 73. Edington v. Mut. L. Ins. Co.,5 Hun, 1; Sloan v. N. Y. C., etc.. 45 N. Y. 125: Hunn v. Hunn, 1 T. & C. 499: People v. Sto it, 3 Park. Cr. 670; Johnson r. Johnson, 14 Wend. 637; Allen v. Public Adm'r, 1 Bradf. 221: Kendall v. Grey, 2 Hilt. 300; Hewit v. Prime, 21 Wend. 79; Sloan r. N. Y. C. R. R. Co., 45 N. Y. 125; Hunn v. Hunn, 1 N. Y. Sup. Ct. (T. & C.) 499.

835. Attorneys and counsellors not to disclose communications. An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment.

New in form. Genet v. Ketchum, 62 N. Y. 626; Cary v. White, 59 id. 336; Carnes e. Platt, 46 How. 520; s. c., 15 Abb. N. S. 337; Rogers v. Lyon, 64 Barb. 373; Mulford v. Muller, 1 Keyes. 31; Whitney v. Barney, 38 Barb. 393; Whiting v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 1d. 51: Yates v. Olmstead, 56 d. 632; Rochester City Bank r. Suydam, 5 How. 257; Graham v. People, 63 Barb. 468; Rogers v. Lyon, 61 id. 373; Sanford v. Sanford, 61 Barb. 293; Robinson v. Dauch, 3 id. 20; Little v. McKeon, 1 Sandf. 607; s. c., 6 N. Y. Leg. Obs. 238; Caniff v. Myers, 15 Johns. 246; Gaul v. Groat, 1 Cow. 113; Tullock e. Cunningham, id. 256; Pixley e. Butts, 2 1d. 421; Blatchley v. Moser, 15 Wend. 215.

§ 836. [Amended, 1877.] Application of the last three 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.

New. See Johnson v. Johnson, 4 Paige, 460; Hunn v. Hunn, 1 T. & C. 479.

837. When witness not excused from testifying. -A competent witness shall not be excused from answering 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.(1)

2 R. S. 405, 71 (2 Edm. 422). Henry v. Salina Bank, 1 N. Y. 83, 86; 4 Johns. Ch. 432; 3 Paige, 533; 11 Wend. 329. (1) Rivenburgh v. Rivenburgh, 47 Barb. 425.

§ 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.

Co. Proc., 393. Pickard v. Collins, 23 Barb. 444; Parsons v. Suydam,