lands, tenements or hereditaments situated within this state, which contains recitals that the grantors, grantees, or either, or both, are the heirs-at-law of a prior owner of the title or interest described in said instrument, shall be presumptive evidence of said heirship as therein recited, if such instrument be duly acknowledged or witnessed and proved in any manner required or permitted at the date of the execution thereof, and be duly recorded in any county where any part of the lands described therein shall be located, or duly recorded in the office of the secretary of state of the state of New York.

Added by L. 1913, c. 395 (in effect Sept. 1, 1913).

ARTICLE SECOND. Rechos 3

Administration of an oath or affirmation.

Sec. 842. Before whom oaths and affidavits may be taken.

843. Id.; in special cases.

844. Id.; without the State.

845. General mode of swearing.

846. When laying of the hand upon the gospels dispensed with.

847. When affirmation to be made.

848. Other modes of swearing.

849. Swearing persons not Christians.

850. Court may examine witness.

851. Swearing falsely in any form, perjury.

§ 842. [Am'd, 1911, 1915. Before whom oaths and affidavits may be taken.

An oath or affidavit, required or authorized by law, except an oath to a juror or a witness upon a trial, an oath of office, and an oath or acknowledgment required by law to be taken before a particular officer, may be taken before a judge, clerk, deputy-clerk, or special deputyclerk, of a court, a notary public, mayor, justice of the peace, a city magistrate of any of the cities of this State, or police justice thereof, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act, except that a justice of the peace may take such oath or affidavit anywhere in the county containing the town or city in which he is authorized to act; and when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person.

From 2 R. S. 284 (Part 3, c. 3, tit. 2), § 49. Am'd by L. 1911, c. 670; L. 1915, c. 146 (in effect September 1, 1915).

§ 843. (Am'd, 1877.] Id.; in special cases.

Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. From 2 R. S. 552 (Part 3, c. 8, tit. 17), § 11. Am'd by L. 1877, c. 416.

§ 844. [Am'd, 1877.] Id.; without the State.

An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledgment and proof of deeds, to be recorded in the State; and, when certified by him to have been taken before him, and accompanied

with the like certificates, as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used, as if taken and certified in this State, by an officer authorized by law to take and certify the same.

New. Am'd by L. 1877, c. 416.

§ 845. [Am'd, 1899.] General mode of swearing.

Except as otherwise specially prescribed in this article, when an oath is administered, the witness shall lay his hand on the gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the gospels.

From 2 R. S. 407 (Part 3, c. 7, tit. 3), § 82. Am'd by L. 1899, c. 340 (in effect Sept. 1, 1899).

§ 846. [Am'd, 1899.] When laying of the hand upon the gospels dispensed with.

The oath must be administered in the following form, to a person who so desires, the laying of the hand upon the gospels being omitted: "You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand, at his option. From Id., § 83. Am'd by L. 1899, c. 340 (in effect Sept. 1, 1899).

§ 847. When affirmation to be made.

A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form: "You do solemnly, sincerely, and truly, declare and affirm."

From Id., § 84.

§ 848. [Am'd, 1877, 1899.] Other modes of swearing.

If the court or officer, before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon the gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness.

From Id., § 85. Am'd by L. 1877, c. 416; L. 1899, c. 340 (in effect Sept. 1, 1899).

§ 849. [Am'd, 1877.] Swearing persons not Christians.

A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act.

From 2 R. S. 408, § 86. Am'd by L. 1877, c. 416.

§ 850. Court may examine witness.

The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowledge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory.

From 2 R. S. 408, § 89.

§ 851. [Omitted; see Table, p. iii.] Swearing falsely in any form, per!ury. A person swearing, affirming, or declaring, in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon the gospels.

From Id., § 90. Am'd by L. 1899, c. 340 (in effect Sept. 1, 1899).

TITLE II.

Compelling the attendance and testimony of a witness.

Sec. 852. Mode of serving subpoena issued out of a court.

853. Penalty for disobedience.

Warrant for witness.

854. Subpoena to be issued by judge, etc.
855. Penalty for disobeying subpoena.
856. When witness to be imprisoned.

857. Contents of warrant.

858. To whom directed; how execnted. 859. Qualification of preceding sections.

860. Witness exempt from arrest.

861. When to be discharged from arrest.
862. By whom witnesses may be discharged.

863. Arrest, when void; penalty.

864. Sheriff not to be liable unless affidavit is made. 865. Application of foregoing provisions to judgments. 866. Records not to be removed by virtue of subpoena. 867. Production. etc., of book of account.

867a. Subpoena duces tecum relating to hospital records. 868. Books, etc., of corporation, how produced.

869. When personal attendance not required by subpoena duces tecum.

f 852. Mode of serving subpoena issued out of a court. A subpoena, issued out of the court, to compel the attendance of a witness, and, where the subpoena so requires, to compel him to bring with him a book or paper, must be served as follows: 1. The original subpoena must be exhibited to the witness. 2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him.

3. The fees, allowed by law, for traveling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.

From 2 R. S. 400 (Part 3, c. 7, tit. 3), § 42.

§ 853. Penalty for disobedience.

A person so subpoenaed, who fails, without reasonable excuse, to obey the subpoena, or a person who fails, without reasonable excuse, to obey an order, duly served upon him, made by the court, or a judge, in an action, before or after final judgment therein, requiring him to attend, and be examined, or so to attend, and bring with him a book or paper, is liable, in addition to punishment for contempt, for the damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. Those sums may be recovered in one action, or in separate actions. If he is a party to the action in which he was subpoenaed, the court may, as an additional punishment, strike out his pleading.

From Id., § 43.

§ 854. [Am'd, 1877, 1900.] Subpoena to be issued by judge. etc.

When a judge, or an arbitrator, referee, or other person, or a board or committee, or a committee of either house of the legislature, or a joint committee thereof, duly empowered by resolution or act to sit and take testimony during the session thereof, or after the adjournment thereof, has been heretofore or is hereafter expressly authorized by law to hear, try, or determine a matter, or to do any other act in an official capacity, in relation to which proof may be taken, or the attendance of a person as a witness may be required; or to require a person to attend, either before him or it, or before another judge, or

TRIAL

(You)

officer, or a person designated in a commission issued by a court of another State or country, to give testimony, or to have his deposition taken, or to be examined; a subpoena may be issued, by and under the hand of the judge, arbitrator, referee, or other person, or the chairman or a majority of the board or committee, requiring the person to attend; and also, in a proper case, to bring with him a book or a paper. The subpoena must be served, as prescribed in section 852 of this act. This section does not apply to a matter arising, or an act to be done, in an action in a court of record.

From 2 R. S. 401, § 44.

April 23, 1900).

Am'd by L. 1877, c. 416; L. 1900, c. 587 (in effect

§ 855. [Am'd, 1877, 1879.]

poena. Warrant for witness.

Penalty for disobeying sub

A person who is duly subpoenaed, as prescribed in the last section, must obey the subpoena. If he fails so to do, without a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, to be recovered as prescribed in section 853 of this act. If he fails to attend the person issuing the subpoena, if he is a judge of a court of record or not of record, or if not, then any judge of such a court, upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff of the county commanding him to apprehend the defaulting witness, and bring him before the officer, person, or body, before whom or which his attendance was required.

From 2 R. S. 401. $$ 45, 46. Am'd by L. 1877. c. 416; L. 1879, c. 542.

§ 856. [Am'd, 1879.] When witness to be imprisoned. If the person subpoenaed and attending or brought as prescribed in the last section, before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by the terms of the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits to do the act which he was so required to do or is discharged according to law.

From 2 R. S. 401, § 47. Am'd by L. 1879, c. 542.

§ 857. Contents of warrant.

A warrant of commitment, issued as prescribed in the last section, must specify particularly the cause of the commitment; and, if the witness is committed for refusing to answer a question, the question must be inserted in the warrant.

From 2 R. S. 401, § 48.

§ 858. To whom directed; how executed.

A warrant to apprehend or commit a person, issued as prescribed in this title, must be directed to the sheriff of the county where the person is, and must be executed by him, in the same manner, as a similar mandate issued. by a court of record, in an action.

From 2 R. S. 402, § 48.

859. Qualification of preceding sections.

The foregoing sections of this title do not apply to a subpoena issued by a justice of the peace; or to a witness subpoenaed to attend a court held by a justice of the peace; or to a case where special provision is otherwise made by law, for compelling the attendance of a witness.

From 2 R. S. 402, § 50.

§ 860. [Omitted; see Table, p. iii.] Witness exempt from arrest.

A person duly and in good faith subpoenaed or ordered to attend, for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend.

From Id., § 51.

§ 861. [Am'd, 1909.] When to be discharged from arrest.

The court, from which a subpoena, served in good faith, was issued, or by which an order was made, requiring a person to attend, for the purpose of being examined; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness or other person, from an arrest made in violation of section 26 of the Civil Rights Law.1

From Id., § 52. Am'd by L. 1909, c. 65 (in effect Feb. 17, 1909).

§ 862. [Am'd, 1895, 1909.] By whom witnesses may be discharged. A justice of the supreme court, in any part of the state, or a county judge, has the like authority as a judge of the court, to make an order for a discharge, in a case specified in the last section. Upon satisfactory proof, by affidavit, of the facts, he must also make an order, directing the discharge of a person arrested, in violation of section 26 of the Civil Rights Law, where a subpoena, served in good faith upon the person arrested, was issued as prescribed in section 854 of this act.

From Id., § 53. Am'd by L. 1895, c. 946; L. 1909, c. 65 (in effect Feb. 17, 1909).

§ 863. [Omitted; see Table, p. Hi.] Arrest, when vold; penalty. An arrest, made contrary to the foregoing provisions of this title, is absolutely void, and is a contempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. An action may be maintained, by the person arrested, against the officer or other person making such arrest, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest.

From 2 R. S. 402, § 54.

864. [Omitted; see Table, p. 1.] Sheriff not to be liable unless affidavit is made.

But a sheriff or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit, to the effect that he was legally subpœnaed or ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest.

1Section 26 of the Civil Rights Law is the same as former §§ 863, 864 of this Code (excepting the first sentence of § 863), which, for convenience sake, have been retained in this edition. These two former sections have now been consolidated into one section in the Civil Rights Law.