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amined de bene esse, fail to comply with the summons, the judge issuing the summons, on due proof of the service, and of the failure of the

witness, is required to issue his warrant to the sheriff of the county, to apprehend the witness, and bring him before such judge to be examined. And if any witness, attending pursuant to the summons or brought before the officer, shall, without reasonable cause, refuse to be examined or to answer any legal or pertinent question, or to subscribe his deposition when taken, the officer issuing the summons shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law.

a. The deposition thus taken de bene esse (or a certified copy thereof) may be given in evidence by either party on the trial of the cause, or upon the assessment of damages by the clerk, or by a writ of inquiry. But it must first be satisfactorily proved that the witness is unable to attend the trial or assessment, personally, by reason of death, insanity, sickness, or settled infirmity, or that he has continued absent from the State, so that his attendance could not be compelled by the ordinary process of law. Where the residence of a party in another State, at a given time, has been proved, the presumption, unless rebutted, is that it continues, and the burden of proof is upon the party alleging a different place of residence (Nixon v. Palmer, 10 Barb. 175; see Bronner v. Frauenthal, 37 N. Y. 166). Is a party against whom a deposition taken de bene esse is offered a competent witness for the purpose of excluding the deposition ? (ib.). The uncorroborated testimony of an interested witness, that shortly before the trial he saw in this State a person proved by other testimony to be a resident of another State, is not sufficient to authorize the exclusion of a deposition of such person taken de bene esse (ib.)

b. To entitle the deposition of a witness examined de bene csse, under the statute, to be read at the trial, on the ground of his absence from the State, it must be proved by competent evidence, to the satisfaction of the court, that he has continued absent, out of the State, so that his attendance at such trial could not be compelled by the ordinary process of law. The mere declaration of his wise, out of court, that he is absent, without other evidence, does not constitute such proof. She is competent to prove the fact if it exists; and there is no reason why hearsay evidence should be admitted to establish it

, when the fact itself may as easily be proved by the wife as her declaration concerning it by a third person (Fry v. Bennett, 4 Duer, 247). Semble, that in order to let in the deposition of a witness examined de bene, the absence of the witness must be shown by some one who can speak to the fact of his own knowledge; proof of inquiries made at the residence of the witness and of the answers given, is not enough (Robinson v. Markis, 2 M. & Rob. 375).

c. The party offering the deposition in evidence cannot rely merely upon the presumption of the inability of the witness to attend the trial, arising from his advanced age (3 Wend. 180). And in case of the absence of a witness, the party offering his deposition in evidence must prove that he has used due diligence to procure the attendance of the witness, and that he has made inquiries at his last place of abode, in order to have him subpænaed (4 Wash. c. C. Rep. 219). Where it appears that every reasonable effort has been made to find the witness, and there is reason to suppose he is out of the State, that is sufficient to authorize the reading of the deposition (Roberts v. Carter, 28 Barb. 462). And proof that the party examined resided in another State, that he had been seen there since he was examined ; and that the witness had been informed that he was then, at the time of the trial, at bis place of residence, was held sufficient to entitle the deposition to be read (Donnell v. Carter, 6 Bosw. 621).

d. The preliminary proof may be made by affidavit, unless the proof is objected to specifically on the ground that it is by affidavit, and vica voce testimony insisted on (V Cow. 59). The preliminary proof may be made by a party to the suit (Harris v. Ely, Court of Appeals, Dec. 1852 ; i Selden's Notes, 35 10 Barb. 175; and see Sheldon v. Wood, 2 Bosw. 269).

a. The deposition of a foreign witness, taken de bene esse, may be read, though it appear that he came into this State on request of the party, for the purpose of being examined, and that he is at home in a foreign country, and might have been examined on a commission, and even though a commission may have been obtained for the purpose of examining him at his foreign residènce (7 Cow. 69).

b. The opposite party may prevent the reading of the deposition, by satisfactory proof that sufficient notice was not given him to enable him to attend the examination of the witnesses, or that the examination was not, in all respects, fair, and conducted according to the statute. But he cannot object that the notice was too short, where he appears before the officer and omits there to object for that reason (ř Cow. 59). A party by appearing and cross-examining the witness, waives all irregularities in the proceedings to bave the witness examined (Rushmore v. Hall, 12 Abb. 420).

c. The court will presume that the certificate that the deposition was read over to the witness, &c., was not given until the statute in that respect had been complied with (Sheldon v. Wood, 2 Bosw. 268).

d. Formal defects in the affidavit on which the order for examination was obtained will not prevent the deposition taken pursuant to said order being read in evidence (id.)

e. The reading of the deposition may be prevented by proof that the witnesses' attendance might, with due diligence, be obtained (8 Barb. 530).

f. Where, after testimony has been taken conditionally, one of the plaintiffs dies and the action is continued by the survivor, under $ 121, this testimony so taken is admissible on the trial, just as though no change in the parties had taken place (Markoe v. Aldrich, 1 Abb. 55).

g. Testimony taken conditionally may be read on the trial, if the witness is actually absent, notwithstanding the witness in the interval between the taking of the testimony and the time of the trial has returned to the State (id.)

h. Where the execution of a document is proved without objection on an examination de bene esse, the opposite

party cannot, on the trial, object to the reading of the document (Ward v. Whitney, 8 N. Y. 445.)

i. À party is not required, on the call of his opponent, to produce documents the execution of which he has proved upon the examination of a witness de bene esse. They remain under his control until read in evidence, and he may read a portion of them and refrain from using the others at his election (Edmonstone v. Hartshorn, 19 N. Y. 9). The opposite party must procure a discovery of them before the trial, or be prepared with parol evidence of their contents on a refusal to produce them (id.)

j. A party who has caused a deposition to be taken on his own behalf does not necessarily, by offering and reading parts of it in evidence, bind himself to read it all, nor make the whole of it evidence offered and put in by himself, nor make answers which are irrelevant and incompetent admissible (Gellatly v. Lowery, 6 Bosw. 113). In this respect the deposition of a party taken on his own behalf stands on the same footing as any other deposition. If the answers which the party 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 (id.)

k. Examination of witnesses On interrogatories by consent.—The testimony of any competent witness may be taken in this State, to be used in any civil suit or proceeding, on an agreement in writing to that effect being made between the parties, their attorneys or solicitors, and on interrogatories to be agreed upon in the same manner. Said testimony may be taken before a judge of any court of record of this State, or local officer elected to discharge the duties of county judge, or a justice of the peace of this State, who shall, before the interrogatories are put to him, publicly administer an oath to the witness that the answers given to said interrogatories shall be the truth, the whole truth, and nothing but the truth; and the testimony shall be duly and carefully reduced to writing by the officer, and read to the witness, and subscribed by him and certified by the officer. The testi. mony so taken, together with the interrogatories, shall be filed with the clerk of the court in which the suit or proceeding shall be pending; and if in the supreme court and taken in a suit or proceeding at law, the same shall be filed with the clerk of the county in which the venue is laid; if in equity, with the clerk of the county in which the suit or proceeding shall be pending; and if before any court or officer having no clerk, then with said court or officer. And said testimony may be used in evidence on any trial or hearing of such suit or proceeding; and every objection to the competency or credibility of said witness, or to the competency and relevancy of any answer given by him, may be made in the same manner and with the like effect as if such witness was personally examined at such trial or hearing (Laws 1847, ch. 280, $ 78; ? R. S. 4th ed. 374, $ 50).

a. The deposition thus taken de bene esse is to have the same effect, and do other, as the oral testimony of the witness would have if given on the trial or assessment; and every objection to the competency or credibility of the witness, and to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if the witness were personally examined on the trial or assessment (id.)

$ 399. (Am'd 1851, 1857, 1858, 1859, 1860, 1862, 1863, 1865, 1866, 1867, 1869.) Examination of parties to the action, or special proceeding.

No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title, by assignmeut or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination de ceased, 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, derisee, 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.

6. The intention of this section is that the surviving party to a transaction in issue shall not have the unfair advantage of giving his version of the matter, when the other and adverse party is prevented by death from being heard to contradict or explain it” (Card v. Card, 7 Trans. App. 147). The rule applies to an examination in a surrogate court (Angevine V. Angecine, 48 Barb. 417).

C. The word “transaction” in this section does not embrace all the occurrences 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 v. Pinkney, 18 Abb. 186); and the section does not exclude the testimony of the living party, as to an occurrence at which the deceased need not have been present, or as to a fact he need not have known, to make evidence of it admissible (ed.)

The plaintiff, in an action against next of kin to establish a lost will, is not a competent witness in his own behalf to prove conversations had between himself and the deceased, on the subject of the alleged will ( T'imon v. Claffy, 45 Barb. 438 ; and see Van Alstyne v. Van Alstyne, 28 N. Y. 378; Williston v. Williston, 41 Barb. 635).

a. A party sued by an administrator may testify to a conversation heard by him between the decedent and a third person (Simmons v. Sissons, 26 N. Y. 264).

b. In an action by a legatee of a bond against the obligor, the defendant may be examined on his own behalf to prove payments in the lifetime of the plaintiff's testator (Wildey v. Whitney, 25 How. 75; and see Schenck v. Warner, 37 Barb. 258; Hight v. Sackett, 34 N. Y. 447).

c. The bailee for hire of a chattel, when sued for its detention by a third party, may be a witness in his own behalf, although the bailor be dead (Penny v. Black, 6 Bosw. 50).

d. The fact that a witness cannot testify to certain matters, e. g., to transactions with a deceased person, is not a reason for refusing to swear him; non constat, that he could not give other material testimony (Card v. Card, 7 Trans. App. 144).



Motions and Orders.

SECTION 400. Definition of an order. 401. Definition of a motion, Motions, how and when made.

Motions in the first district. Stay of proceedings. Com

pelling parties to testify on motions. 402. Notice of motion. 403. In actions in the supreme court, county judge may exercise

powers of a judge at chambers. His orders, how re

404. In absence, &c., of judge at chambers, motion may be trans-

fer to another judge.
405. Enlarging time for the proceedings in an action.

$ 400. Definition of an order.

Every direction of a court, or judge, made or entered in writing, and not included in a judgment, is denominated an order.

e. Order and judgment, distinction between.-An order is the decision of a motion, a judgment is the decision of a trial (Bentley v. Jones, 4 How. 435; King v. Stafford, 5 How. 30). Every direction of a court, or judge, does not become an order by being put in writing (Howard v. Freeman, 6 Rob. 511). An order for a new trial is not a judgment (Duane v. North. R. R. Co. 4 How. 364).


$ 401. (Amd 1849, 1852, 1858, 1869, 1862, 1867, 1870.) Definition of a motion. Motions, how and where made. Motions in the first district. Stay of proceedings. Compelling parties to testify.

(1.) An application for an order is a motion.

(2.) Motions may be made, in the first judicial district, to a judge or justice out of court, except for a new trial on the merits.

(3.) Orders made out of court, without notice, may be made by any judge of the court, in any part of the State; and they may also be made by a county judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides, except to stay proceedings after verdict.

(4.) Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable; except, that where the action is triable in the first judicial district, the motion must be made therein, and no motion upon notice can be made in the first judicial district, in an action triable elsewhere.

(5.) In all the districts, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions.

(6.) No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except to stay proceedings under an order, or judgment appealed from, or upon previous notice to the adverse party.

(7.) 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 person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpænaed, 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 service, shall be three dollars per day.

(8.) Whenever a motion shall be made in any cause or proceeding, in any of the courts of this State, to obtain an injunction order, order of arrest, or warrant of attachment, or to vacate, modify or set aside any injunction order, order of arrest, or warrant of attachment granted in any such case or proceeding, it shall be the duty of the judge, before whom such motion is made, to render and make known his decision on such motion within twenty days after the day upon which such motion sball or may be submitted to him for his decision.

Note to subdivision 1. a. What is a motion ?—The following applications to the court hare

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