§ 911. Deposition, etc., evidence. A deposition taken and returned as prescribed in this article, or an exemplified copy thereof, if the original is filed in another county, may, unless it is suppressed as prescribed in the last section, be read in evidence by either party. It 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 ch. 387 of 1853, § 13; 2 R. S. 396, Part 3, ch. 7, tit. 3, § 23. § 912. When interrogatories and deposition may be in a foreign language. Upon an application, made in the supreme court, the city court of the city of New York. or a county court, for a commission to be issued to a foreign country, if it satisfactorily appears, by affidavit, that the witness does not understand the English language, the order for the commission may in the discretion of the court or judge, direct that written interrogatories annexed thereto, by way of direct or crossexamination, be framed in the English language, and also in a foreign language; that only the interrogatories framed in the foreign language be put to the witness; and that his answers be taken, and the certificates be made out in the same language. Where such an order is made, it must provide tor the payment, by the applicant, to the adverse party, of a reasonable sum fixed therein for the expense of procuring the interrogatories, in his behalf, to be translated. The judge, who settles the interrogatories must settle them in the foreign language and in the English language; and for that purpose, he may call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the applicant. When the deposition is read in evidence, it, and the interrogatories, must be interpreted into the English language, as if the witness, being unable to speak the English language, was personally present and testifying. Am'd by ch. 946 of 1895. § 913. Letters rogatory. Letters rogatory may be issued from either of the courts specified in the last section, in its discretion, in a case where a commission may be issued, as prescribed in this article, upon satisfactory proof, by affidavit, that there is good reason to believe, that the ends of justice will be better promoted thereby, than by the issuing of a commission; notwithstanding that a commission can be executed, in the country to which they are sent. Letters rogatory can be issued only to examine one or more witnesses, upon written interrogatories, annexed thereto; which must be framed and settled, and the depositions must be returned, as prescribed in this article, with respect to the interrogatories annexed to a commission and the depositions taken thereunder. ARTICLE THIRD. Depositions taken within the State, for use without the State. SEC. 914. In what cases deposition may be taken. 915. Proceedings to obtain testimony. 916. Contents of subpoena. [Repealed.] 917. Subpoena, when no commission is issued. [Repealed.] 918. Justice of the peace may subpoena witness. [Repealed.] 920. Penalty for not appearing. [Repealed.] § 914. In what cases deposition may be taken. A party to an action, suit, or special proceeding, civil or criminal, pending in a court without the State, either in the United States, or in a foreign country, may obtain, by the special proceeding prescribed in this article, the testimony of a witness, and, in connection therewith, the production of books and papers, within the State, to be used in the action, suit or special proceeding. From 2 R. S. 397, Part 3, ch. 7, tit. 3, § 29 (2 Edm. 414), as amended by ch. 68 of 1867, § 1 (7 Edm. 52). Am'd by ch. 502 of 1899. § 915. Proceedings to obtain testimony. Where a commission to take testimony, within the State, has been issued from the court in which the action, suit, or special proceeding is pending; or where a notice has been given, or any other proceeding has been taken, for the purpose of taking the testimony, within the State, pursuant to the laws of the State or country, wherein the court is located, or pursuant to the laws of the United States, if it is a court of the United States, the supreme court, or the county court, or a judge of either court, shall, in a proper case, on the presentation of a verified petition issue a subpoena to the witness, commanding him to appear before the commissioner, named in the commission; or before a commissioner, within the State, for the State, Territory, or foreign country, in which the notice was given, or the proceeding taken; or before the cfficer designated in the commission, notice, or other paper, by his title of office; at a time and place specified in the subpoena, to testify, in the action, suit, or special proceeding. If the witness shall fail to obey the subpoena, or refuse to have an oath administered, or to testify, or to produce a book or paper pursuant to a subpoena, or to subscribe his deposition, the court or judge issuing the subpoena shall, if it is determined that a contempt has been committed, prescribe the punishment as in the case of a recalcitrant witness in the supreme court. The general rules of practice must prescribe rules for such proceedings. From Id., § 30 and part of § 31, as amended by ch. 68 of 1867, § 1 (7 Edm 52). Am'd by ch. 502 of 1899. § 916. Contents of subpoena. Repealed by ch. 502 of 1899. § 917. Subpoena, when no commission is issued. Repealed by ch. 502 of 1899. § 918. Justice of the peace may subpoena witness. Repealed by ch. 502 of 1899. § 919. Taking and return of deposition. The officer or commissioner, before whom a witness appears, in a case specified in this article, must take down his testimony, in writing, and must annex thereto copies of all books and papers produced or such parts thereof as shall be required, and must certify and transmit it to the court in which the action, suit, or special proceeding is pending, as the practice of that court requires. From Id., § 2. Am'd by ch. 502 of 1899. § 920. Penalty for not appearing. Repealed by ch. 502 of 1899. TITLE IV. Documentary evidence. ARTICLE 1. Documentary evidence, as a substitute for oral testimony. 2. Proof of a document executed or remaining within the State. 3. Proof of a document remaining in a court or public office of the United States, or executed or remaining without the State. ARTICLE FIRST. Documentary Evidence, as a Substitute for Oral Testimony SEC. 921. Certain official certificates, evidence. 922. Certificate. etc., on file, evidence. 923. Notary's certificate, evidence. 924. Notary's protest and memorandum; when evidence. 925. Proof of presentment, etc., of foreign bills. 926. Affidavit of printer, etc., evidence. 927. Id.; of service of notice. 928. Marriage certificate, evidence. 929. Book of foreign corporation; when evidence. 930. When a copy thereof is evidence. 931. How copy to be verified. § 921. Certain official certificates, evidence. Where the officer, to whom the legal custody of a paper belongs, certifies, under his hand and official seal, that he has made diligent examination, in his office, for the paper, and that it cannot be found, the certificate is presumptive evidence of the fact so certified, as if the officer personally testified to the same. From 2 R. S. 552, Part 3, ch. 8, tit. 17, § 12 (2 Edm. 573). See § 961. § 922. Certificate, etc., on file, evidence. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him, in the course of his official duty; and to file or deposit it in a public office of the State; the certificate or affidavit, so filed or deposited. or an exemplified copy thereof, is presumptive evidence of the facts therein alleged except where the effect thereof is declared or regulated, by special provision of law. § 923. Notary's certificate, evidence. The certificate of a notary public of the State, under his hand and seal of office, of the presentment by him, for acceptance or payment, or of the protest, for non-acceptance or non-payment, of a promissory note or bill of exchange, or of the service of notice thereof on a party to the note or bill; specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the postoffice nearest thereto; is presumpive evidence of the facts certified, unless the party, against whom it is offered, has served upon the adverse party, with his pleading, or within ten days after a joinder of an issue of fact, an original affidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit, within the meaning of this section. From ch. 271 of 1833, § 8. Am'd by ch. 416 of 1877. § 924. Notary's protest and memorandum; when evidence. In case of the death or insanity of a notary public of the State, or of his absence or removal, so that his personal attendance, or his testimony, cannot be procured, in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payment, therein stated; and a note or memorandum, personally made or signed by him, at the foot of a protest, or in a regular register of official acts, kept by him, is presumptive evidence that a notice of nonacceptance or non-payment was sent or delivered, at the time, and in the manner, stated in the note or memorandum. From 2 R. S. 283, Part 3, ch. 3, tit. 2, § 46 and § 47 (2 Edm. 294). § 925. Proof of presentment, etc., of foreign bills. Proof of the presentment, for acceptance or payment, of a promissory note or bill of exchange, payable in another State, or in a Territory, or foreign country, or of a protest of the note or bill, for non-acceptance or non-payment, or of the service of notice thereof, on a party to the note or bill, may be made, in any manner authorized by the laws of the State, Territory, or country where it was payable. From ch. 309 of 1865, § 1 (6 Edm. 467). § 926. Affidavit of printer, etc., evidence. The affidavit of the printer or publisher of a newspaper, published within the State, or of his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the State, to be published in that newspaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed; or to a case, where the mode of proving a publication is otherwise specially prescribed by law. From ch. 159 of 1835, § 1 (4 Edm. 638). § 927. Id.; of service of notice. Where it is necessary, upon the trial of an action, to prove the service, posting or affixing, of a notice, an affidavit, showing the service, posting or affixing, to have been made by the person making the affidavit, is presumptive evidence of the service, posting or affixing, upon first proving that he is dead or insane, or that his personal attendance cannot be compelled, with due diligence. From ch. 244 of 1858, § 1 (4 Edm. 645). Am'd by ch. 93 of 1902. In effect March 5, 1902. § 928. Marriage certificate, evidence. An original certificate of a marriage, within the State, made by the minister or magistrate by whom it was solemnized; the original entry thereof, made, pursuant to law, in the office of the clerk of a city or a town within the State; or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. From 2 R. S. 141, Part 2, ch. 8, tit. 1, § 17 (2 Edm. 146). |