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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 plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiff's 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).


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.

ɑ. 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).

b. 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 eceased 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.

335; March v. Ludlam, 3 Sandf. Ch. 35), and the disability applies to the attorney's clerk (Sibley v. Waffle, 16 N. Y. 180). An attorney may testify on behalf of his client (Little v. McKeon, 1 Sand. 607; Robinson v. Dauchy, 3 Barb. 21). An attorney having papers of his client in his possession in court is not privileged from producing them, at least for identification (The People v. Sheriff of New York, 7 Abb. 96).

a. Corporation. The provisions of law allowing parties to be witnesses in their own behalf, apply to actions wherein a municipal corporation is a party (Mott v. Mayor of N. Y. 2 Hilton, 358; Wallace v. Mayor of N. Y. id. 440; Johnson v. McIntosh, 31 Barb. 267; Woods v. De Figaniere, 16 Abb. 1). The defendant being a corporation does not prevent the plaintiff being examined as a witness in his behalf (Fields v. N. Y. Cent, R. R. Co. 29 Barb. 176; Wright v. N. Y. R. R. Co. 28 Barb. 80; Lafarge v. Exchange Ins. Co. 22 N. Y. 352).

6. Metropolitan police.—A subpoena from a civil court cannot be served on any person holding office under the metropolitan police act, while such person is actually on duty (Laws 1860, p. 446, § 34).

c. When an issue of fact has been joined in any action in a court of record, and it appears, on the application of either party, that any witness or party (Brockway v. Stanton, 2 Sand. 640; Fairbanks v. Tregent, 16 How. 187; 17 How. 258; Biglow v. Mallory, 17 How. 427; Block v. Haas, 8 Abb. 335; Stuke v. Andre, 9 Abb. 420; McCarty v. Edwards, 24 How. 236), not residing within the State, is material in the prosecution or defense of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness [or party] on oath, upon the interrogatories annexed to such commission, to take and certify the depositions of such witness, and to return the same according to the directions given with such commission.

d. A commission may issue after a default for want of an answer, and e parte, if the defendant has not served notice of appearance in the action (Laws 1862, ch. 375, p. 628); and it may issue to take the testimony of a nonresident witness, although his domicile be within the State (1 Wend. 65); and it may issue to examine a witness on a motion (see in note to § 401, post). A commission cannot issue in supplementary proceedings (Graham v. Colburn, 14 How. 52; Morrell v. Hay, 15 Abb. 430; 24 How. 48).

e. In the discretion of the court.-It is in the discretion of the court to grant or refuse the commission (4 Sand. 676; 3 Johns. Cas. 137; 2 Sand. 683); and if the opposite party shows any reasonable ground for denying the motion, the court will order the party applying for the commission to disclose by affidavit what he expects to prove (3 Code Rep. 234), and may then, in its discretion, grant the rule either absolutely or conditionally, unless the adverse party will admit the facts sought to be proved (7 Cow. 369); and he must admit the facts, not that the witness will testify to such facts (Bank of Commerce v. Michel, 1 Sand. 687).

f. In Clayton v. Yarrington (16 Abb. 273, note) the court ordered a commission on condition that the applicant would consent that the witnesses be examined and cross-examined orally. In Deshon v. Packwood (16 Abb. 272, note), Hoffman, J., refused to grant a commission with a direction to take the testimony orally (see 3 Bradf. Surr. Rep. 249).

g. Who may issue commission.-Commissions to take testimony out of the State may be granted either by the court or, if the action be in the supreme court, by a judge at chambers or county judge of the county in which the action is triable (2 R. S. 394; § 12).

h. A commission may also issue out of the marine court (Laws of 1852, p. 648, § 8), and the district courts of the city of New York (Laws of 1857, ch. 344, § 30), and courts of justices of the peace (Laws 1838, ch. 243; Laws 1847, ch. 329).

i. Motion for commission, when and how made.-The motion for a commission must be made in the district in which the action is tri

able, or in the county adjoining that in which it is triable (Sturgess v. Weed, 13 How. 130; Newcombe v. Reed, 14 id. 100; Erwin v. Voorhies, 26 Barb. 127). a. An order for a commission taken by default, is not a nullity because the motion papers do not disclose the name of the county in which the action is to be tried. If necessary to show the place of trial it can only be to show that the motion is made in the proper county (Blackman v. Van Inwagen, 5 How. 367).

b. The application is founded on an affidavit, stating that the cause is at issue, and the names of the witnesses, except where their names are unknown (2 Hall, 502); that he has fully and fairly stated the case to counsel (19 Wend. 98); and that the witnesses are material, as the party is advised, by said counsel after such statement, and verily believes, and are without the State (2 Johns. Cas. 68, 285; 1 Wend. 65; 7 Barb. 631). And if the defendant makes the application, and asks for a stay of proceedings until a return of the commission, but not otherwise (9 Wend. 444), he must swear to merits (1 Wend. 27; 4 Hill, 534; 2 Johns. Cas. 285).

c. The affidavit may be made by the attorney (7 Wend. 513); or any third person cognizant of the facts (1 Cow. 210); and when made by the attorney it need not state the advice of counsel as to the materiality of the witnesses (7 Wend. 513). The agent in fact of the plaintiff, acting under a letter of attorney, may make the affidavit without showing any excuse why it is not made by the party (1 Cow. 210; 2 Johns. Cas. 69; Johnson v. Lynch, 15 How. 200). The fact that the party applying for a commission is not a resident of the city of New York, and is absent therefrom, is a sufficient excuse for the making the affidavit in support of the application by the attorney instead of the party (Eaton v. North, 7 Barb. 631; Deshays v. Persee, 9 Abb. 289, note). Where no laches are imputable to a party applying for a commission, and there is nothing to cast suspicion upon the application, he is not bound to state what he expects to prove by the witness whose testimony he seeks to procure (id.)

d. The notice of motion should contain the names of the proposed commissioners.

e. If the motion is made by the plaintiff, it should be made as soon after issue joined as practicable (7 Wend. 513); and when by the defendant, it should be made before notice of trial; otherwise he must pay costs to that time (1 Johns. Cas. 391), unless it appear that he has used due diligence (1 Wend. 283; Brokaw v. Bridgman, 6 How. 114).

f. If the bona fides of the application is doubtful, the commission will not be ordered on the common affidavit (3 Johns. Cas. 137; 7 Wend. 514).

g. Stay of proceedings.-The defendant may obtain a stay of proceedings, to enable him to move for a commission, and he has twenty days after the cause is at issue to move for a commission with a stay (1 Sand. 717; 1 Code Rep. 96).

h. A commission with a stay will not be refused upon affidavit that the witnesses named are incompetent, but the court will leave the question as to their competency to be determined at the trial (11 Johns. 200).

i. The court will usually stay the proceedings until the return of the commission. The granting a stay is in the discretion of the court or judge to whom the application is made, and the court will not review the exercise of such discretion; but perhaps the court would review an order refusing to stay proceedings until the return of a commission (Thatcher v, Bennett, MS)

j. The order for a commission is not, per se, a stay of proceedings (7 Wend. 520). If a stay of proceedings has been granted with the commission, the party obtaining it must use all diligence to have it returned within a reasonable time. If issued by the plaintiff, the defendant, after the expiration of a reasonable time, may move the court for judgment, as in case of nonsuit, and compel the plaintiff to stipulate (1 Caines' R. 517; 23 Wend. 38; 2 Caines' R. 47).

k. Delay in procuring return.-Where the commission has been

issued by the defendant, or where both parties have joined in it (2 Johns. Cas. 70; 1 Caines' R. 115, 503), the plaintiff, after the lapse of a reasonable time, may move for leave to proceed to trial, notwithstanding the commission (23 Wend. 38; 2 Sand. 690; 3 Code Rep. 202). It may be resisted by the defendant on the ground that the delay of returning the commission has been occasioned by the plaintiff (2 Johns. 196; 2 Caines' R. 47).

a. If the plaintiff have leave to proceed, and proceeds to trial, the defendant may apply at the circuit to put off the trial (1 Caines' R. 503, note; 2 ib. 46; 2 Sand. 690; 3 Code Rep. 202; 18 Wend. 657). If, without leave of the court, the plaintiff go to trial, and the defendant appear and examine witnesses, it is a waiver of the commission (1 Caines' R. 73).

b. Where sufficient time has elapsed prima facie to have the return of a commission issued with a stay of proceedings, the stay will be vacated on motion of the adverse party; and, on the cause being called for trial, the party who issued the commission must establish the grounds, if any he has, for a further stay (Voss v. Fielden, 2 Sand. 690).

c. Commissioners.-The adverse party may object to the commissioners named in the moving papers (3 Johns. 251; 2 Wend. 62). The commission to examine a witness in a foreign state or county may be directed to a resident of this State (3 Caines' R. 105).

d. Interrogatories and directions for return of commission.-Interrogatories are to be annexed to the commission; they must be signed by counsel, and settled before a justice of the court (2 R. S. 394, § 14). A county judge has no power to settle interrogatories in an action in the supreme court (Erwin v. Voorhies, 26 Barb. 127).

e. To procure the settlement, serve a copy of the interrogatories, and a notice (of four days) of the time and place at which they will be presented for settlement, on the opposite attorney. The opposite party may propose cross-interrogatories, a copy of which must be served two days before the time of settlement of the interrogatories (see 1 Edw. Ch. R. 649).

f. Where parties join in a commission they should deliver their interrogatories simultaneously (Brush v. Vanderburgh, 1 Edw. Ch. R. 649).

g. At the time of settlement either party may except to the interrogatories of the other, and the judge shall decide on the exception. If an interrogatory is allowed to pass without exception, the answer to such interrogatory cannot be objected to at the trial, as incompetent evidence, provided it be fairly within the scope of the interrogatory (6 Cow. 404; 2 Wend. 65, 71, contra). Further questions may also be proposed, and if allowed, inserted among the interrogatories.

h. The settlement of interrogatories is equivalent to passing upon questions propounded to a witness when called to testify at the trial (Macdonald v. Garrison, 2 Hilton, 510).

i. In settling the interrogatories the judge will, if required, disallow such as there is reasonable ground to suppose do not relate to the issues to be tried (Macdonald v. Garrison, 2 Hilton, 510; 9 Abb. 178; Blaisdell v. Raymond, 9 Abb. 178, note).

j. The interrogatories being settled and engrossed, the judge indorses his allowance, and directs the manner in which the commission, with the interrogatories annexed, shall be returned (2 R. S. 394, §§ 14, 15).

k. In the supreme court, the direction usually is, that it be returned by mail, addressed to the clerk of the county in which the trial is to be had, designating the name and residence of such clerk (2 Hill, 502).

7. Where the place of trial of an action was changed, and a commission was afterward issued and was directed to be returned to the clerk of the county originally named in the complaint as the place of trial, instead of the clerk of the county to which the trial was changed, it was held, that as it did not appear but that the place of trial was changed merely for the convenience of witnesses, the direction was proper (Whitney v. Wynkoop, 4 Abb.

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