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a mistake, or that new evidence has been discovered. More especially will such an application be refused when the only other witness, who was cognizant of the fact to which the witness is sought to be examined, is dead (Raney v. Weed, 1 Barb. 220).

a. An amendment of the pleadings does not render inadmissible a deposition previously taken (Vincent v. Conklin, 1 E. D. Smith, 204). The plaintiff's case rested principally on a deposition taken under a commission. After the taking the deposition the pleadings were amended in form, but the issues between the parties were not in substance changed,-held, that the deposition was admissible in evidence. "If either party wished further to examine the witness, a motion should have been made for a further commission, and if not, and the testimony was inapplicable to the new issue, a motion to suppress the deposition would have been proper; but we are not prepared to hold that a mere technical amendment of proceedings renders void all previous deposi tions which may have been taken in a cause" (ib.; Ingraham, First J.)

b. Amending return of commissioners.-If a commission be defectively executed, the court has power to order it to be returned to have the defect amended, and it is not necessary to issue a new commission (1 Code Rep. N. S. 289; Sheldon v. Wood, 2 Bosw. 269).

c. Costs of a commission.-Costs of a commission do not include the charges of a solicitor employed abroad (Dunham v. Sherman, 19 How. 572; 11 Abb. 152).

d. Letters rogatory.—The superior court held that it was inexpedient to grant the process of that court to compel the attendance of witnesses to be examined under a commission from a foreign country, the case not being provided for by statute (In Re the petition of Jay, 5 Sand. 647); but the supreme court granted the process required (b. 680; see Laws 1867, ch. 68.)

Examination of witnesses and parties de bene esse.

e. In what cases.--The examination of witnesses (and parties) de bene . esse, is provided for by 2 R. S. 391 to 393, amended by Laws of 1851, p. 871; Laws of 1852, p. 471; and Code, § 390. Where a party or a witness, whose testimony may be considered material on either side, is about leaving the State, and there is no probability of his returning in time to appear at the trial, or is so sick or infirm as to be unable to attend, either party may apply to a judge for leave to take his testimony de bene esse, that is, conditionally, to be used only in case the personal attendance of such witness at the trial cannot be procured.

f. This application may be made at any stage of the cause (7 Cow. 489), on an affidavit stating:

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

2. If the application be made by the defendant, the nature of his defense; 3. The name and residence of the witness;

4. That the testimony of such witness is material and necessary for the party making such application, in the prosecution or defense of such suit, as the case may be; and

5. That such witness is about to depart from this State, or that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial.

g. The time fixed for the examination, must not exceed twenty days from the date of the order, and may be as much shorter as the exigencies of the case may require, and the residence of the adverse party or his attorney will allow, in order to afford opportunity to attend such examination.

h. A summons may issue to compel the attendance of the witness, and must be served in the same manner as a subpoena (See 1 Bosw. 611).

i. Or the judge may, in his discretion, make an order, requiring the adverse party to show cause, on a day in such order to be named, why such testimony should not be taken by a referee, to be appointed by him; and in such order shall direct the time and mode of the service thereof. Such an order

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is an order out of court, and without notice, and in actions in the supreme court, may be made by any judge of the court in any part of the State (Bank of Silver Creek v. Browning, 16 Abb. 272).

a. An order requiring the adverse party to attend the examination of a witness de bene esse, in an action in the supreme court, may be made by any judge of the court in any part of the State (Bank of Silver Creek v. Browning, 16 Abb. 272).

b. At the time specified in the order, the opposite party may show cause against proceeding in the examination, by proof that the witness is not about to depart from this State, or that he is not sick or infirm, or that the application for his examination is made collusively, to avoid his being examined on the trial of the cause; and upon any such cause being shown, the application may be dismissed.

c. If no sufficient cause be shown, then, on proof of service of the order and a copy of the affidavit upon which it was granted, the party may either proceed to examine the witness and take his deposition-in which shall be inserted any answer or declaration of the witness which either of the parties shall require to be included therein-or if the order was to show cause why the testimony should not be taken by a referee, the judge may apppoint a referee to take such testimony, who shall take, certify and file the same, in the same manner and with the like effect as is provided for the examination of a witness by a judge of the court.

d. In taking a deposition, it is not necessary for the judge himself to write down the examination of the witness; it is sufficient that he administers the proper oath, and then, after the witness has been examined in his presence, and the examination has been written down by counsel, that he reads it over to the witness before the signing and certifying thereof (McDonald v. Garrison, 9 Abb. 34; 18 How. 249).

e. The witness must be interrogated to every fact to be deposed to, as on a trial (7 Cow. 60).

f. The statute regulating the taking of depositions de bene esse, and requiring the officer to insert therein every answer of the witness examined which either party shall require to be included, is complied with by confining the direction to answers, leaving the officer to exclude questions in his opinion illegal or irrelevant; and a party is not empowered by the statute to go into a course of irrelevant inquiry, and have answers thereto included in the deposition (Gibson v. Pearsall, 1 E. D. Smith, 90). "The defendant insists that the deposition of Vanderslice was improperly admitted, on the ground that an officer taking the examination of a witness de bene esse, is bound by statute to receive and take down every answer to questions proposed; and that, in this case, the judge before whom the deposition was taken refused to allow a question presented by the defendant's counsel on cross-examination to be put to the witness at all. The statute is very explicit in its terms, requiring the officer to insert in the deposition every answer or declaration of the witness examined, which either party shall require to be included therein. It is, in my judgment, unreasonable and very unfortunate, if the proper construction of this statute permits a party who has a witness under examination, to make that the occasion for going into every species of irrelevant inquiry into matters having no possible connection with the controversy; and the abuses to which such a construction may lead seem to me too obvious to require enumeration" (ib.; Woodruff, J.)

g. The deposition being finished, must be carefully read over to, and subscribed by the witness, certified by the judge or referee taking it, and filed in the clerk's office within ten days thereafter; but where a deposition, taken de bene esse, is not filed within ten days, as directed by the statute, the court may order it to be filed nunc pro tunc (Burdell v. Burdell, 11 N. Y. Leg. Obs. 189; 1 Duer, 625; Bank of Silver Creek v. Browning, 16 Abb. 279; see Vrooman v. King, 2 Trans. App. 112).

h. If a witness, on being summoned to attend for the purpose of being ex

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 esse, 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 wife, 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 subpoenaed (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 his place of residence, was held sufficient to entitle the deposition to be read (Donnell v. Carver, 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 (7 Cow. 59). The preliminary proof may be made by a party to the suit (Harris v. Ely, Court of Appeals, Dec. 1852; 1 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 residence (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 (7 Cow. 59). A party by appearing and cross-examining the witness, waives all irregularities in the proceedings to have 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).

9. 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. A 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 testi

mony 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 testimony 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; 2 R. S. 4th ed. 374, § 50).

a. The deposition thus taken de bene esse is to have the same effect, and no 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 deceased, 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, devisee, 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.

b. 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. Angevine, 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 (id.)

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