by either party. It has the same effect, and no other, as the oral testimony of the witness; 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 on the deposition. [Code, § 911, without change.] § 273. Justice of the peace may subpoena witness.-Where proof is made by affidavit or otherwise to the satisfaction of a justice of the peace: 1. That a civil action, suit, or special proceeding is pending in a court of another State, or of a Territory, or of the United States. 2. That a person, residing or sojourning in the town or city in which the justice resides, is a material witness for either party. 3. That according to the practice of the court in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken is authorized to be received in evidence on the trial or hearing. The justice must issue a subpoena commanding the witness to appear before him at a specified time, and at a place within the town or city, in which the witness resides or sojourns, to testify in the action, suit, or special proceeding. [Code, § 918, without change.] § 274. Taking and return or deposition.-The justice before whom a witness appears in a case specified in the last section must take down his testimony in writing, 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. [Code, § 919, rewritten applying it only to a case where a subpoena in a foreign action is issued by a justice.] § 275. Penalty for not appearing.-A person who fails to appear at the time and place specified in a subpoena issued as prescribed in the last section but one and duly served on him, or to testify, or to subscribe his deposition when correctly taken down, is liable to the penalties which would be incurred in a like case if he was subpoenaed to attend the trial in an action before such justice. [Code, § 920, rewritten, applying its provisions to a witness subpoenaed before a justice in a foreign action.] ARTICLE XI. TRIAL AND ITS INCIDENTS. Section 285. Justice to wait one hour. 286. When plaintiff must prove his case. 287. Effect of failure of defendant to appear. 288. When justice to try issue of fact. 289. Defendant's offer to compromise. 290. General jury list for courts not of record. 292. Jury, how constituted. 293. Preparation of ballots; original box. 294. Second box. 295. Demanding jury trial. 296. Drawing jurors. 297. Prepayment of fees. 298. Venire. 299. Return of venire. 300. Punishment of juror for default. 301. Ballots, how prepared. 302. Drawing jurors. 303. Jurors in default. ̧ 304. New venire. 305. Additional jurors. 306. Peremptory challenges. 307. Challenges in penal actions. Section 308. Challenges, how tried. 309. Juror's oath. 310. Jury to hear proofs. 311. Witness' oath. 312. Witness refusing to be sworn; warrant thereon. 313. Contents of warrant; imprisonment of recusant witness. 314. Adjournment thereon. 315. Ex parte affidavit; when evidence. 316. When proof of corporate existence unnecessary. 317. Competency of witness; how determined. 318. Constable to keep jury; his oath. 319. Rendition of verdict; plaintiff need not be called. Section 285. Justice to wait one hour.- On the return of a summons duly served the justice must wait one hour after the time specified therein for its return, unless the parties sooner appear. [Code, § 2983, without change.] § 286. When plaintiff must prove his case. The plaintiff cannot recover without proving his case: 1. Where the defendant fails to appear and answer after the service of a summons, except as provided in section 330. 2. Where on the voluntary appearance of the parties without the service of a summons, the defendant fails to file a stipulation for judgment within one hour after the complaint is filed. [Code, § 2891, without change of substance, except to dispense with proof where plaintiff is entitled to judgment on a verified complaint, and also requiring proof on a voluntary appearance where no stipulation for judgment is filed.] 287. Effect of failure of defendant to appear.-Where the defendant makes default in appearing or pleading on the return of a summons which has been duly served as prescribed in this chapter, the justice must hear the allegations and proofs of the plain. tiff, and render judgment according to law and equity as the very right of the case appears. [Code, § 2988, without change.] § 288. When justice to try issue of fact.-Where an issue of fact has been joined, if neither party demands a trial by jury the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as prescribed in the last section. [Code, § 2989, without change.] § 289. Defendant's offer to compromise.-Except in an action to recover a chattel, the defendant may on the return of the summons and before answering the original or amended complaint, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer can be made by one or more of the defendants against whom a separate judgment may be taken. If the plaintiff before taking any other proceeding in the action files with the jus tice a written acceptance of the offer, the justice must forthwith render judgment accordingly. If an acceptance is not filed the offer cannot be given in evidence on the trial; but if the plaintiff fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. [Code, § 2892, without change of substance, except that provision for judgment on an offer is made imperative instead of permissive, and also giving the right to make the offer after an amendment of the complaint.] § 290. General jury list for courts not of record.-A general jury list for the courts subject to the provisions of this chapter consists of: 1. In a county which has no commissioner of jurors, the list of jurors filed with the clerk of the town or city by the officers thereof. 2. In a county which has a commissioner of jurors, the list so filed by him. 3. In a municipal court district in the city of New York, the list delivered by a commissioner of jurors to the resident justice of such district. If in a city, lists of jurors for more than one ward or district thereof are filed with the city clerk, the aggregate lists so filed shall constitute the general list. [New. The proposed judiciary law contains provisions for the preparation and filing of jury lists and declares their effect as to courts of record. This section makes the same lists the basis of the jury system for courts not of record.] § 291. Jury list.-Within ten days after a jury list is filed with the town or city clerk, he shall deliver a certified copy thereof to each justice in his town or city, or in any village any part of which is in such town, except that if the jurisdiction of the justice is limited to territory less than the whole of such town, city or village, then the certified copy shall contain only the names of residents of such territory. The clerk is entitled to a fee of one dollar for each copy so delivered, which is a town or city charge. A clerk who shall neglect to deliver such a copy within the time herein prescribed, shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor for the use of the poor of the town or city. [Code, § 2990, last part rewritten and extended to include any justice subject to the provisions of this chapter, intending to provide a jury list for all courts not of record. The commissioners intend to include in the "Judiciary Law" ample and complete provisions for the preparation of jury lists and the filing of them with the town and city clerks. The justices' code begins at that point with the |