Deposi tion of a TITLE III. Depositions. ARTICLE 1. Depositions, taken and to be used within the State. ARTICLE FIRST. DEPOSITIONS, TAKEN AND TO BE USED WITHIN THE STATE. SEC. 870. Deposition of a party, etc. 871. Deposition of a witness not a party. 872. Application; contents of affidavit. 873. Order for examination. 874. Punishment for disobeying order. 875. Service of order, etc. 876. Deposition when and where to be taken. 879. Deposition by consent. 880. Manner of taking and returning deposition. 881. When to be read in evidence. 882. Proof of witness's inability to attend. 883. Effect of deposition. 884. Original affidavits, evidence. 885. Deposition to be used on motion. 886. Where witness may be compelled to attend. § 870. [Amended, 1877.] The deposition of a party to an party, etc. 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, may be taken, 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. Deposition of a witness not a party. Code Pro., portions of §§ 390, 391, 392 and 397. See Wait's Code, 739741, 743. The power given by the statute to examine an adverse party before trial is a substitute for the bill of discovery in chancery. And a plaintiff in an action pending may examine his adversary under oath before trial, even for the purpose of enabling him to frame his complaint. Glenney v. Stedwell, 64 N. Y. (19 Sick.) 120; S. C., 51 How. 329; 1 Abb. N. C. 327. And see Note on Examination before Trial, 1 Abb. N. C. 332-341. The examination of parties to the action may be held immediately after the service of the summons, there being no limit to the time when the examination may take place after the commencement of the action. Glenney v. World Mutual Life Ins. Co., 8 J. & Sp. 92. § 871. [Amended, 1877.] 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 sec tion 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. See 2 R. S. 407, §§ 1 and 2; id. 414, § 33; id. 415, § 34. tion; con affidavit. § 872. [Amended, 1877.] The person desiring to take a deposi- Application, as prescribed in this article, may present to a judge of the court tents of in which the action is pending; or, if it is pending in the supreme court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the supreme court, or of a superior city court, or to a county judge; an 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. 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 the subject thereof. 3. If the application is made by the defendant in a pending action, or by the plaintiff, after answer, the nature of the defence. 4. The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defence of such action, and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business. 5. If an action is pending, that the person to be examined is about to depart from the State; 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. But this subdivision does not apply to a case, where the person to be examined is a party to the action. 6. If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, or sojourning within the State; or, if two or more persons are expected to be adverse parties, that they are all so resident or sojourning. 7. Any other fact, necessary to show that the case comes within one of the last two sections, or relevant to the questions specified in the next section. From 2 R. S. 407, § 2, and id. 415, adverse party before trial should not An order for the examination of an Order for examination. Punishment for disobeying order. Service of order, etc. tion when for the purpose of discovering matters order is made should satisfy the judge that the examination is required to attain justice between the parties. Schepmoes v. Bousson, 1 Abb. N. C. 481; S. C., 52 How. 401. § 873. [Amended, 1877.] 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; otherwise he must dismiss the application. 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, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order. From 2 R. S. 407, § 3, and id. 415, last clause of § 34. § 874. [Amended, 1877.] 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. 2 R. S. 409, § 10; id. 415, § 35, amended. See 2 Wait's Pr. 712, 713. § 875. 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, who is required thereby to appear, 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 pend ing, they must be personally served upon each of the persons, named therein as expected adverse parties. New. See Plummer v. Belden, 8 Hun, 455. Deposi- § 876. Upon proof, by affidavit, that service of a copy of the and where order and of the affidavit has been duly made, as directed in the to be taken. 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. 2 R. S. 408, § 5; 415, § 36. See 2 Wait's Pr. 715. §§ 877 and 878, repealed, 1877. tion by § 879. The parties to an action may stipulate, in writing, that Deposithe deposition of a competent witness, to be used therein, may be consent. taken before a judge or referee, at a time and place specified in the stipulation, either orally, or upon interrogatories, to be agreed upon in like manner. The witness may, be subpoenaed to attend the examination, as upon a trial; and the judge or referee may take his deposition, as if an order had been made by the court, directing it to be so taken. Laws of 1847, ch. 280 (4 Edm. St. 579), §§ 78, 79, amended. See 2 Wait's Pr. 672-674. taking turning tion. § 880. The judge or referee taking a deposition, as prescribed Manner of in this article, must insert therein every answer or declaration of the and reperson examined, which either party requires to be inserted. The deposi deposition, when completed, must be carefully read to and subscribed by the witness; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk; or, if no action is pending, in the office of the clerk of the county in which it was taken; together with the stipulation or order, under which it was taken; the affidavit upon which the order was granted; and proof of the service of a copy of the order and of the affidavit. 2 R. S. 408, § 6, and part of § 5; id. 415, § 37. See 2 Wait's Pr. 666, 715. be read in § 881. The deposition, or a certified copy thereof, may be read When to in evidence by either party, at the trial of, or upon the assessment of evidence. damages, by writ of inquiry, or upon a reference, or otherwise, in the action specified in the original affidavit or stipulation; or any other action, thereafter brought, between the same parties, or between any parties claiming under them, or either of them; or, if no action is pending, an action, thereafter brought, between the persons named in the original affidavit as expected parties, or between persons claiming under them or either of them. From 2 R. S. 408, 416, parts of §§ 7 and 39. See 2 Wait's Pr. 668, 716. The examination of parties before trial, at the instance of the adverse party, precludes such further examination at the trial on the same subjectmatter by the party at whose instance the examination before trial was had, witness's § 882. But such a deposition, except that of a party, taken at Proof of the instance of an adverse party, or a deposition taken in pursuance inability of a stipulation, as prescribed in this article, shall not be so read in evidence, until it has been satisfactorily proved, that the witness is to attend. Effect of deposition. Original affidavits, dead, or is unable personally to attend, by reason of his insanity, sickness, or other infirmity; or that he has been and is absent from the State, so that his attendance could not, with reasonable diligence, be compelled by subpoena. See the statutory reference in the Where a witness who has been ex- petent for a party proposing to show that he was too unwell to attend, to give evidence as to his declarations made in answer to questions put to him shortly before the trial, as to his ability to be present. McArthur v. Soule, 5 Hun, 63. § 883. 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. 2 R. S. 409, 416, §§ 9 and 40 tual Insurance Co., 63 N. Y. (18 Sick.) amended. See 2 Wait's Pr. 668, 680, 77. 707. Compare Sturm v. Atlantic Mu § 884. The original affidavits, filed with such a depósition, or evidence. certified copies thereof, are presumptive evidence of the facts therein contained, to show a compliance with the provisions of this article. 2 R. S. 415, § 38. Deposi tion to be used on motion. § 885. [Amended, 1877.] Where a party intends to make or oppose a motion in a court of record, other than a court specified in subdivision 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 appointing 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 motion, and must show that the affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the 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 subpoenaed, 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 provides for a different disposition thereof. |