§ 872. Application; contents of affidavit.

The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pending; or, if it is pending in the supreme court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the supreme court, or to a county judge, an affidavit setting forth as follows:

1. The names and residences of all the parties to the action, and whether or not they have appeared, and, if either of them has appeared by attorney, the name, and the residence or office address of the attorney; or, if no action is pending, the names and residences of the expected parties thereto.

2. If an action is pending, the nature of the action, and the substance of the judgment demanded, and, if the application is made by the defendant before answer, or by either party after answer, the nature of the defense.

3. If no action is pending, the nature of the controversy which is expected to be the subject thereof.

4. The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action, and if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries; and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business.

5. If an action is pending, that the person to be examined is about to depart from the state, or that he is so sick or infirm, as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other specia! circumstances exist, which render it proper that he should be examined as prescribed in this article. But this subdivision does not apply to a case where the person to be examined is a party to the action.

6. If no action is pending, that the person expected to be the adverse party, is of full age, and a resident of the state, or sojourning within the state or that he has an office within the state, where he regularly transacts business in person specifying the place, and, if it is in a city, the street and street number or other designation of the particular locality; or, if two or more persons are expected to be adverse parties, that each is of full age, and so resident or sojourning or has an office; also the circumstances which render it necessary for the protection of the applicant's rights, that the witness' testimony should be perpetuated. 7. Any other fact necessary to show that the case comes within one of the two last sections. And if the party sought to be examined is a corporation, the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers.

From 1., §§ 2 and 34.

Am'd by ch. 416 of 1877; ch. 542 of 1879; ch. 536 of 1880; ch. 721 of 1893, and ch. 946 of 1895.

See rule 82 (Sup. Ct.).

§ 873. Order for examination.

The judge to whom such an affidavit is presented must grant an order for the examination, if an action is pending; if no action is pending he must grant it if there be reasonable ground to believe that an action will be brought, as stated in the affidavit, and that the application is made in good faith to preserve the expected testimony: otherwise he must dismiss the application. Where the person to be examined is a party to a pending action or is expected to be a party to an action to be brought, the order may, in the discretion of the judge, designate and

limit the particular matters as to which he shall be examined. In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper. In any action brought to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of the court or judge shall order that such physical examination be made, and if the party to be examined shall be a female she shall be entitled to have such examination before physicians or surgeons of her own sex. The order must require the party or persons to be examined to appear before the judge, or before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within the State. not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order.

From Id., §§ 3 and 34.

Am'd by ch. 416 of 1877; ch. 542 of 1879; ch. 399 of 1884; ch. 428 of 1894.

§ 874. Punishment for disobeying order.

Witnesses' fees at the rate prescribed by law in an action in the supreme court, must be paid or tendered when the order is served upon the party or other person required to attend. If the party or person so served fails to obey the order, his attendance may be compelled and he may be punished. in like manner and the proceedings thereon are the same, as if he failed to obey a subpoena issued from the court in which the action is pending, or, if no action is pending. from the court of which the judge is a member.

From Id., § 10.

Am'd by ch. 416 of 1877, and ch. 397 of 1882.

§ 875. Service of order, etc.

A copy of the order, and of the affidavit upon which It was granted, must be served upon the attorney for each party to the action in like manner as a paper in the action; or, if a party has not appeared in the action, they must be served upon him. as directed by the order. If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties.

Am'd by ch. 542 of 1879.

§ 876. Deposition, when and where to be taken. Upon proof by affidavit that service of a copy of the order and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness, at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place within the same county. Sections eight hundred and fifty-six, eight hundred and fiftyseven and eight hundred and fifty-eight of this act apply to the examination of a party or a person expected to be an adverse party, taken as prescribed in this article.

From 2 R. S. 392, Part 3, ch. 7, tit. 3, §§ 5 and 36 (2 Edm. 408, 415).
Am'd by ch. 542 of 1879.

877. Deposition of prisoner.

Where the party or other person to be examined is confined in a prison or jail within the state, under a sentence for a felony, that fact

must be stated in the affidavit, and his deposition may be taken as prescribed in the foregoing sections, as if he was not so confined, except that in such a case, the granting or refusing the order, and, if granted, the appointment of a referee to take the testimony, is always in the discretion of the judge. The order must require the production of the prisoner by the person in charge of the prison or jail, at the prison or jail; but it may prescribe such regulations and restrictions with respect thereto as the judge deems proper.

Added by ch. 397 of 882.

Original section repealed by ch. 416 of 1877.

§ 878. Proceedings upon such application; new order. Repealed by ch. 416 of 1877.

§ 879. Deposition by consent.

The parties to an action may stipulate in writing that the deposition of a competent witness, to be used therein, may be taken before a judge or referee, at a time and place specified in the stipulation, either orally, or upon interrogatories, to be agreed upon in like manner. The witness may be subpoenaed to attend the examination as upon a trial, and the judge or referee may take his deposition, as if an order had been made by the court directing it to be so taken. But this section does not apply to a case specified in section 877 of this act.

From ch. 280 of 1847, §§ 78, 79.

Am'd by ch. 397 of 1882.

§ 880. Manner of taking and returning deposition. The examination of a party, or an expected party, is subject to the same rules as if he was examined upon the trial. The judge or referee, upon every other examination taken as prescribed in this article, must insert therein every answer or declaration of the person examined which either party requires to be inserted. The deposition, when completed, must be carefully read to and subscribed by the person examined; must be certified by the judge or referee taking it; and, within ten days thereafter. must be filed in the office of the clerk; or, if no action is pending, in the office of the clerk of the county in which it was taken; together with the stipulation or order, under which it was taken; the affidavit upon which the order was granted; and proof of the service of a copy of the order and of the affidavit. If. upon an examination before a referee, the person examined refuses to answer any question, the referee, must report the fact to the court or judge, who must determine whether the question is relevant, and whether the witness is bound to answer it.

From 2 R. S. 392, Part 3, ch. 7, tit. 3. §§ 5, 6 (2 Edm. 408), and 2 R. S. 399, Part 3, ch. 7, tit. 3, § 37 (2 Edm. 415).

Am'd by ch. 542 of 1879.

§ 881. When to be read in evidence.

The deposition, or a certified copy thereof, may be read in evidence by either party, at the trial of, or upon the assessment of damages, by writ of inquiry, or upon a reference, or otherwise, in the action specified in the original affidavit or stipulation: or any other action thereafter brought, between the same parties, or between any parties claiming under them, or either of them; or, if no action is pending an action thereafter brought, between the persons named in the original affidavit as expected parties or between persons claiming under them or either of them.

From parts of Id., §§ 7 and 39.

§ 882. Proof of witness's inability to attend.

But such a deposition, except that of a party, taken at the instance of an adverse party or a deposition taken in pursuance of a stipulation. as prescribed in this article, shall not be so read in evidence until it has been satisfactorily proved that the witness is dead, or is unable person ally to attend by reason of his insanity, sickness, or other infirmity, or that he is confined in a prison or jail; or that he has been and is absent from the State, so that his attendance could not, with reasonable dili gence, be compelled by subpœna.

From remainder of Id., §§ 7 and 39.
Am'd by ch. 397 of 1882.

§ 883. Effect of deposition.

A deposition, so read in evidence, has the same effect, and no other. as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness; or to the relevancy or substantial competency of a question put to him, or of an answer given by him; may be made, as if the witness was then personally examined, and without being noted upon the deposition.

From Id., §§ 9 and 40.

§ 884. Original affidavits, evidence.

The original affidavits, filed with such a deposition, or certified copies thereof. are presumptive evidence of the facts therein contained to show a compliance with the provisions of this article.

From Id., § 38.

§ 885. Deposition to be used on motion.

Where a party intends to make or oppose a motion in a court of record other than a court specified in subdivision sixteen, seventeen, eighteen or nineteen of section two of this act, and it is necessary for him to have the affidavit or deposition of a person not a party, to use upon the motion, the court or a judge authorized to make an order in the case may in its or his discretion make an order appointing a referee to take the deposition of that person. The order must be founded upon proof by affidavit that the applicant intends to make the motion, or that notice of a motion has been given which the applicant intends to oppose. The affidavit must specify the nature of the action and must show that the affidavit or deposition is necessary thereon and that such person has refused to make an affidavit of the facts which the applicant verily believes are within his knowledge. If the defendant has appeared in the ac tion and the application is made on the part of the plaintiff at least one day's notice of such application must be given to the attorney of the defendant, and if the application is made on the part of the defendant similar notice must be given to the attorney of the plaintiff. The person to be examined may be subpoenaed and compelled to attend as upon the trial and may be cross examined by the party on whose attorney the notice has been served. The deposition must be taken by question and answer and be subscribed by the witness, and must be delivered to the attorney for the party who procured the order, unless such order provides for a different disposition thereof.

From Co. Proc. § 401, subd. 7.

Am'd by ch. 416 of 1897, and ch. 526 of 1901.

Subs. 16, 17, 18 and 19 of § 2 of this act," refers to said sub-divisions previous to the amendment of $ 2 of the code by ch. 946 of 1895. The courts referred to are the mayor's court of the city of Hudson, the recorder's court of the city of Utica, the recorder's court of the city of Oswego, and the justices' court of the city of Albany, which are now found under § 2, subs. 10, 11, 12 and 13 respectively.

$386. Where witness may be compelled to attend. Where a person to be examined, as prescribed in this article. is a resident of the State, he shall not be required to attend in any county. other than that in which he resides, or where he has an office for the regular transaction of business, in person. Where he is not a resident, he shall not be required to attend in any other county, than that wherein he is served with a subpoena, unless, for special reasons, stated in the affidavit, the order otherwise directs.

From Co. Proc. § 391, last clause.

ARTICLE SECOND.

Depositions, taken without the State, for use within the State

SEC. 887, 888. When commission to issue, etc.

889. How and upon what terms granted.

890. Order made by judge.

891. Interrogatories; how settled.

892. Id.; to be annexed; directions for return.

893. Commission to examine, wholly or partly, upon oral questions.

894. When open commission may issue, or depositions may be taken.

895. Depositions where adverse party is an infant or committee.

896. Notice of examination upon oral questions.

897. Open commission.

898. Order directing depositions to be taken.

899. Before whom depositions may be taken; notice of taking.

900. How depositions taken.

901. Commission or order to take depositions, how executed and returned. 902. Certificate of execution.

903. Certificate; a sufficient return.

904. Return by agent.

905. If agent is sick or dead.

906, 907. Filing deposition, etc., so returned

908. Commission, etc., by consent.

909. Where return to be kept; parties may inspect it, etc.

910. When deposition may be suppressed.

911. Depositions, etc., evidence.

912. When interrogatories and deposition may be in a foreign language. 913. Letters rogatory.

§ 887. When commission to issue, etc.

In a case specified in the next section, where it appears, by affidavit, on the application of either party, that the testimony of one or more witnesses, not within the State, is material to the applicant; a commission may be issued, to one or more competent persons named therein; authorizing them, or any one of them, to examine the witness or witnesses named therein, under oath, upon the interrogatories* annexed to the commission; to take and certify the deposition of each witness, and to return the same, and the commission, according to the directions given in or with the commission. The applicant, or any other party to the action, may be thus examined.

From ch. 375 of 1862, § 1; 2 R. S. 393, Part 3, ch. 7, tit. 3, § 11.

Am'd by ch. 542 of 1879.

See rule, 20 (Sup. Ct.).

See § 887.

See also § 1264, Consol. Act.

§ 888. The same.

Such a commission may be issued in either of the following cases: 1. Where a party to an action brought in a court of record is in default for want of an appearance or pleading, and the testimony is required upon the assessment of damages by a writ of inquiry or upon a reference, or otherwise, to enable the court to render the proper final judgment.

* So in the original.