a. If a witness on whom a subpona duces tecum is served, neglects, without good excuse, to obey the subpoena by producing the papers mentioned in the subpoena, he is liable to the aggrieved party for all damages sustained in consequence of such neglect, although the witness in other respects obeys the writ by personally appearing and giving evidence in the cause (Lane v. Cole, 12 Barb. 680).

b. 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. The La Farge Ins. Co. 14 How. 26).

c. An unincorporated joint stock company is not such a corporation as will enable its officers to refuse to produce its papers in their custody, when required by subpoena (Woods v. De Figaniere, 16 Abb. 159).

(Am'd 1849.)

$ 391. 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.

d. As a general rule an examination of an adverse party before trial, cannot be had until after issue joined (Bell v. Richmond, 50 Barb. 571; 4 Abb. N. S. 44, Supreme Court; contra, Superior Court, New York; McVickar v. Greenleaf, 4 Rob. 657; Me Vickar v. Ketchum, 1 id. 452; Fullerton v. Gaylord, 7 Rob. 522; Duffy v. Lynch, 36 How. 508). On a motion at the proper time and place and in the proper manner, the granting an order for the examination before trial of an adverse party is a matter of right (Cook v. Bidwell, 29 How. 483; Fullerton v. Gaylord, 7 Rob. 552). A refusal of the order may be reviewed on appeal (Green v. Wood, 6 Abb. 277; 15 How. 338).

e. To entitle a party to such an order he must present to a judge of the court in which the action is pending, or to a county judge, an affidavit stating: 1. The nature of the action and the plaintiff's demand.

ness.

2. If the application be made by the defendant, the nature of the defense. 3. The name and residence of the party he proposes to examine as a wit

f. Where the application is made by a plaintiff before the complaint is served (see Duffy v. Lynch, 36 How. 509). Upon this the judge will make an order that such party be examined as a witness on a day and at a place named in the order. The day should not be more than twenty days after the date of the order, and may be as much shorter as the judge may direct. The judge will also sign a summons commanding the witness to attend at the time and place named in the order to submit to an examination (see a form, 14 How. 453); perhaps this summons should be sealed with the seal of the court (Whitney v.

Wynkoop, 4 Abb. 374). It is not the practice to seal it. The summons is to be served upon the party to be examined personally in the same manner as a subpoena is required to be served and the like amount of fees paid as upon service of a subpoena. A copy of the order is to be served upon the attorney for each of the parties in the action who have appeared, and if any party has not appeared, or not appeared by attorney, he should be served with a copy of said order personally (Greene v. Herder, 7 Rob. 463; 30 How. 210; Van Rensselaer v. Tubbs, 31 How. 193).

a. The service of the summons must be within the State (Appleton v. Appleton, 50 Barb. 486).

b. The proceeding under the section is exclusively a statutory one (id.) c. The examination.-The limit of the examination is within the discretion of the judge (Plato v. Kelly, 16 Abb. 188). The examination of the adverse party is in effect a cross-examination, and governed by the same rules (id.)

d. Where on an examination before the trial the witness refuses to answer a legal and pertinent question, the judge should issue his warrant for the commitment of the witness, not make an order adjudging him in contempt (The People v. Dyckman, 24 How. 222).

§ 392. (Am'd 1849.) Compelling attendance.

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.

6. Compelling attendance.-The attendance of the witness cannot be compelled, except upon a summons (Bleecker v. Carroll, 2 Abb. 82; Draper v. Henningsen, 1 Bosw. 614; Garighe v. Laroche, 14 How. 452; 6 Abb. 284, note); and on payment of his fees as a witness for attending (Taggard v. Gard ner, 2 Sand. 669; Draper v. Henningsen, 1 Bosw. 614; see in note to § 391). f. A party examines his adversary before the trial at his peril, and whatever testimony is taken, without objection, may be read on the trial by either party (Berry v. Galvin, 37 How. 310; Greene v. Herder, 7 Rob. 461).

§ 393. (Am'd 1849.) Rebutting testimony.

The examination of the party, thus taken, may be rebutted by adverse testimony.

g. Contradicting party as a witness.-A party who calls his adversary as a witness, thereby represents him as worthy of credit, and cannot afterwards impeach him by showing either that his general character for truth is bad, or that he has made previous contradictory statements (Pickard v. Collins, 23 Barb. 444). But he may prove a fact to be otherwise than his adversary has testified to (id.; Parsons v. Suydam, 3 E. D. Smith, 275; Muir v. Culy, 10 Up. Can. Q. B. R. 321; Armstrong v. Clark, 2 Code R. 143); and he may do this by proving admissions of such adversary (id.) And the testimony of a party may be controverted or impeached in the same manner as any other witness (Varono v. Socarras, 8 Abb. 302; Forward v. Harris, 30 Barb. 338).

h. Where the plaintiff and defendant's testimony is contradictory, a writ

ten statement by either opposed to his testimony will warrant the jury in disregarding his testimony (Boyd v. Colt, 20 How. 384).

§ 394. (Am'd 1849.) Refusing 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 be stricken out.

a. Contempt.-To authorize the punishment of a party for contempt in refusing to be examined under sections 390-393, 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. De Figaniere, 16 Abb. 1; 1 Rob. 607).

b. The proceedings to punish for a contempt, or strike out a pleading, must be based on affidavits, to be served with a notice of eight days (Hewlett v. Brown, 1 Bosw. 655). A party cannot be punished for a contempt for refusing to attend and testify on the mere service of a notice to attend, without any summons, and without payment of his fees as a witness (id.)

c. Where one of several defendants was subpoenaed to appear before a county judge, for an examination on behalf of the plaintiffs, and, on the day appointed, made default without any sufficient excuse, but it not appearing that the plaintiff or any of the parties were in attendance on said day, nor any reason given why they were not,-held that the defendant was not in contempt, and that the inference was that the plaintiff had abandoned the proceeding (Gardiner v. Peterson, 14 How. 513; see Satterlee v. De Comeau, 7 Rob. 661).

See note to section 391.

d. In Bennett v. Hall 10 N. Y. Leg. Obs. 191, it appeared the defendant was subpoenaed on Saturday to attend to be examined on the following Tuesday, and in pursuance of previous arrangement he sailed for California on the Monday preceding. A motion for an order to strike out the answer for his nonattendance was denied.

e. This section does not give the court the power to stay the proceedings of a plaintiff in the action, because of his failing to attend and be examined as a witness before the trial (Appleton v. Appleton, 50 Barb. 486).

§ 395. (Am'd 1849, 1863.) Rebutting testimony.

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.

See § 398, post.

$396. 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.

a. One who is a mere surety, to enable another to prosecute or defend an action is not a person for whose benefit the action is prosecuted (Jessup v. Miller, 1 Keyes, 321).

§ 397. (Am'd 1851, 1852.) Examination of coplaintiff, or codefendant.

A party may be examined on behalf of his coplaintiff or of a codefendant, as to any matter in which he is not jointly interested or liable with such coplaintiff or codefendant, 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 three hundred and ninety, and three hundred and ninety-one, one of several plaintiff's 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.

b. See § 398, post. This section has "had no force or application in any possible case since 1860" (Card v. Card, 7 Trans. App. 146).

CHAPTER VII.

Examination of Witnesses.

SECTION 398. Interest not to exclude a witness.

399. Parties to actions and special proceedings may be witnesses on their own behalf, except in certain cases.

$398. (Am'd 1869.) Interested witness.

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. Husband and wife as witnesses.—In any trial or inquiry in any suit, action or proceeding in any court, or before any person having, by law or consent of the parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding (Laws 1867, ch. 887, § 1).

6. 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 criminal conversation (ad. § 2.)

c. No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage (id. § 3).

d. A married man examined as a witness cannot refuse to answer, on the ground that the answer may subject him to a civil action for divorce (Taylor v. Jennings, 7 Rob. 581; see ante, p. 240, a, b)..

e. Husband and wife, parties to an action, and witnesses on their own behalf, or in behalf of any other party, are subject to the same rules of examination (except as provided in the statute) as other witnesses (Wehrkamp v. Willett, 1 Keyes, 250).

Examination of witnesses and parties on commission.

f. Commission in what cases.-The examination of witnesses and parties out of the State, on commission, is provided for (2 R. S. 393 to 397, and Code, § 390). The material parts of the statute, and the decision thereon, are given below. The articles of the revised statutes relative to taking testimony out of the State, applied only to actions at common law; the court of chancery had the power, independently of any statute (Brown v. Southworth, 9 Paige, 351).

g. Confessions to clergy.—-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 by the rules or practice of such denomination (2 R. S. 503, § 91).

h. Knowledge acquired by physicians.—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 (id. § 92; Hanford v. Hanford, 3 Edw. Ch. R. 468; Kendall v. Gray, 2 Hilton, 300). But a physician consulted as to the means of doing an unlawful act such as procuring an abortion, is not excused from answering (21 Wend. 79). The statute does not prevent the physician of a deceased person giving evidence in a testamentary cause, concerning the probate of the will of such decedent. The statute does not establish a general and absolute prohibition of such testimony in all cases, but secures a personal privilege to the party, or his representatives, which may be waived; and if such privilege be waived, the witness cannot object to testify (In the matter of Harrison, deceased, 1 Bradford's Surrogate Rep. 221).

i. Attorney.-An attorney cannot be a witness as to confidential communications between himself and his client (see Rochester City Bank v. Suydam, 5 How. 254; Williams v. Fitch, 18 N. Y. 546; Brandt v. Klein, 17 Johns.