refusal to § 394. [Sec.347.] If a party refuse to attend and testify Effect of as in the last four sections provided, he may be punished testify. as for a contempt, and his complaint, answer, or reply, Amended may be stricken out. 1849. par- Testimony his not respon by a party sponsive to the inqui ies, may be rebutted the by the oath of the par § 395. [Sec. 349.] A party examined by an adverse ty, as in this chapter provided, may be examined on own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to enquiries put to him by the adverse party, or necessary to ty calling explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may 1849. offer himself, as a witness on his own behalf, in respect to such new matter, and shall be so received. A party is entitled to offer himself as a witness for the purpose of answering new matter drawn out on a question put to the adverse party by the court. Myers vs. McCarthy, 2 Sand. 399; and he may call other witnesses to rebut the testimony. Armstrong vs. Clark, 2 Code Rep. 143. him. Amended whom aetion is brought or defended § 396. Sec. 350.] A person for whose immediate benefit Persons for the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same man- may be exner, and subject to the same rules of examination, as if he were named as a party. amined. tion of co co-defend ant. 1849. § 397. A party may be examined on behalf of his co-plain- Examinatiff or a co-defendant as to any matter in which he is not joint- plaintiff or ly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment Passed shall 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 behalf of the party examined, unless he is examined at the instance of the adverse party. Under the Code of 1849, a co-defendant could not be examined where a separate judgment could not be rendered. Merrifield vs. Cooley and others, 4 How. 272; Munson and Switzer agt. Hagerman and Hagerman, 5 How. 223. Selkirk agt. Waters, and others, id. 296. But see The President &c., of the Mechanics' and Farmers' Bank agt. Rider and Wilbur, id. 401, Hollenbeck agt. Van Valkenburgh and others, id. 281. Amended 1851. No wit ness to be In an action against the “mayor, aldermen, &c.," one of the aldermen is a competent witness for the defendant. Pack vs. the mayor, &c., of NewYork, 3 Com. 489. CHAPTER VII. Examination of witnesses. SECTION 398. No witness to be excluded by reason of interest. § 398. [Sec. 351.] No person offered as a witness, shall excluded be excluded by reason of his interest in the event of the by reason of interest. To whom last section Amended 1851. action. §399. [Sec. 352.] The last section shall not apply to a inapplica party to the action, nor to any person for whose immediate benefit it is prosecuted or defended. When an assignor of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received. But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him against an assignee or an executor or administrator, unless the other party to such contract or thing in action whom the defendant or plaintiff represents is living, and his testimony can be procured for such examination, nor unless at least ten day's notice of such intended examination of the assignor, specifying the points upon which he is intended to be examined shall be given in writing to the adverse party. For decisions under this section in the Code of 1848 and 1849, see the Hamilton and Deansville Plank Road Co. vs. Rice, 7 Barb. 157; S. C. 3 How. 401.; S. C. 1 Code Rep. 108; Hoffman and others vs. Stevens, 2 Code Rep. 16; Dodge agt. Averell and others, 5 How. 8. The mere fact that the name of a witness appears as a party upon the record, is not sufficient to exclude him, if it appears affirmatively that he has no interest in the event of the suit. Safford vs. Lawrence, 6 Barb. 566. Section 64, sub, 15, applies this section to justices' courts. CHAPTER VIII. Motions and orders. SECTION 400. 401. Definition of an order. 402. Definition of a motion. Motions how and where made. When notice is necessary, it must be eight days before 403. In actions in supreme court, county judge may act at cham- *404. In absence of judge at chambers, motion may be transferred 405. by him to another judge. Enlarging time for proceedings in an action. of an or der. § 400. [Sec. 357.] Every direction of a court or judge, Definition made or entered in writing, and not included in a judgment, is denominated an order. A decision upon a demurrer is not an order. Bentley vs. Jones et al. 4 How. 335. Supreme Court Rule, 41. § 401. [Sec. 358, 361, 362.] An application for an order Definition is a motion. of a motion. how and where Motions may be made in the first judicial district to a Motion judge or justice out of court, except for a new trial on the merits. made. Amended Motions must be made within the district in which the 1849. 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. 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, except to stay proceedings after a verdict. No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party. This is a revision and substitute for §51 of the judiciary act, and extends the territorial limits within which a motion may be made, to the entire dis. trict in which the action is triable, and a county adjoining that countyGould and others agt. Chapin and others, 4 How. 185. But see Peebles agt. Rogers, 5 How. 208. When notice is ne cessary, must be The clause "motions must be made within the district"" applies exclusively to motions made upon notice. Peebles agt. Rogers, 5 How. 208. A motion for judgment for not serving a copy of the complaint, must be made in that district, or a county adjoining the county in which the venue is laid. Johnston agt. Bryan, 5 How. 355. On motions made upon notice, the affidavits, &c., of the respective parties used on the motion, must be filed with the clerk where the venue is laid. Savage vs. Relyea et al., 3 How. 276. An ex parte order of a justice at chambers, staying proceedings for more than twenty days, is null, and may be discharged. Huff vs. Bennett. 2 Sand. 703. Where several orders staying proceedings are made collectively, they may stay more than twenty days. Langdon vs. Wilkes, 1 Code Rep., N. S. 10. See section 403 and notes. § 402. [Sec. 363.] When a notice of a motion is necessary, it must be served eight days before the time appointeight days ed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time, before hearing. Amended 1849. In actions in supreme county act at chambers. See sections 412 and 413 and notes, and Supreme Court Rules, 28, 35, 36. § 403. Sec. 364. | In an action in the supreme court, a court, county judge, in addition to the powers conferred upon him judge may by this act, may exercise, within his county, the powers of a judge of the supreme court at chambers, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, His orders, it may be reviewed in the same manner as if it had been made by a judge of the supreme court. how re viewed. &c. of A county judge, granting orders in actions in cases in the supreme court, acts as a justice of the supreme court at chambers, and his orders are to be reviewed in like manner. Conklin and Conklin agt. Dutcher, 5 How. 386. This section does not enlarge the powers of the county judge; its object being to prevent that officer from being divested by implication, of the power he had previously exercised. Merritt and another vs. Slocum and others, 3 How. 309; S. C. 1 Code Rep. 98. A county judge cannot issue an injunctional order in an action where the venue is out of the county of which he is judge. Eddy vs. Howlett, 2 Code Rep. 76. In absence, § 404. [Sec. 365.] When notice of a motion is given, or an order to show cause is returnable, before a judge out judge at chambers, motion of court, and at the time fixed for the motion, he is absent, may be transferred another or unable to hear it, the same may be transferred, by his by him to order, to some other judge, before whom the motion might judge. originally have been made. Amended 1849. time for ing in an action. 1849. § 405. [Sec. 366.] The time within which any pro- Enlarging ceeding in an action must be had, after its commencement, proceedexcept the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds Amended therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. The time to appeal can in no case be enlarged. Rowell agt. McCormick and Belden, 5 How. 337. The court have power to authorize an appeal to be taken after the time limited in the code, in certain cases. Crittenden agt. Adams &nd others, 5 How. 310. Orders granted by a justice, ex-parte, at chambers, under this section, need not be entered with the clerk. And a copy of the affidavits on which they are granted, should be served with them. Savage vs. Relyea, 3 How. 277, CHAPTER IX. Entitling affidavits. SECTION 406. Affidavits defectively entitled valid. defectively valid. § 406. [Sec. 367.] It shall not be necessary to entitle an Affidavits affidavit in the action; but an affidavit made without a entitled title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made. See notes to section 173. CHAPTER X. Computation of time. SECTION 407. Time, how computed. § 407. [Sec. 368.] The time within which an act is to Time, how be done, as herein provided, shall be computed, by exclu ding the first day and including the last. If the last day be Sunday, it shall be excluded. computed. |
