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take depositions, with the certificates, returns, deposi tions, and exhibits thereto annexed, must remain on file in the office of the clerk, unless otherwise provided by the stipulation of the parties, or unless the court, by a special order, directs them to be filed in the office of another clerk. They are always open to the inspection of the parties, either of whom is entitled to a copy of them, or of any part thereof, on payment of the fees al lowed by law.
2 B. S. 394, 22.
910. When deposition may be suppressed. — Where it appears, by affidavit, that a deposition has been improperly or irregularly taken or returned; or that the personal attendance of the witness, upon the trial, could have been procured, with due diligence, by a subpoena; or that the attorney for either party has practiced any fraud, or unfair or overreaching conduct, to the prejudice of the adverse party, in the course of the proceedings; an order, for the suppression of the deposition, may be made by the court, upon the appli cation of the party aggrieved, upon notice to the adverse party.
L. 1853, ch. 387, 14, am'd. Creamer . Jackson, Abb. 13. See Underhill v. Van Cortlandt, 2 Johns. Ch. 339; Gates v. Beecher, 3 T. & C. 404; Viimar v. Schall, 35 N. Y. Supr. 67; Goodyear v. Vosburgh, 41 How. 421.
§ 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 an other 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, a question put to him, or of an answer given by him, may be made, as If the witness was then personally examined, and with out being noted upon the deposition.
Id., 13, and 2 R. S. 396, 23, with amendments. Morse Cloyes, 11 Barb. 100; Cope v. Sibley, 12 id. 521; Fleming v. Hollenback, 71d. 271; Phenix v. Baldwin, 14 Wend. 62; Fassin v. Hubbard, 56 N. Y. 465; Hawkins v. Macy, 5 T. & C. 692; s. c., 2 Hun, 668; Heinemann v. Heard, id. 324; 8. c., 4 T. & C. 666.
912. [Amended, 1895.] 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 cross-examination 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 for 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.
In effect Jan. 1, 1896; L. 1895, ch. 946. See Leetch v. Atlantic Mut. F. Ins. Co., 4 Daly, 518.
§ 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 satis. factory proof, by affidavit, that there is good reason to believe, that the end of justice will be better promoted thereby, than by the issuing of a commission, notwith. standing 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 re turned, as prescribed in this article, with respect to the interrogatories annexed to a commission, and the depo sitions taken thereunder.
New. See Froude v. Fronde, 1 Hun, 76; Anon., 5 N. Y. 313; Ferrie . Public Adm'r, 3 Bradf. 151.
DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITH-
Bao. 914. In what cases deposition may be taken. 915. Subpoena to witness.
916. Contents of subpoena.
917. Subpoena, when no commission is issued.
919. Taking and return of deposition.
920. Penalty for not appearing.
§ 914. In what cases deposition may be taken. 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, in the manner prescribed in this article, the testimony of a witness within the State, to be used in the action, suit, or special proceeding.
2 R. 8. 397, 29 (2 Edm. 414), as am'd by L. 1867, ch. 68, § 1 (7 Edm. 53). Eldridge v. Chapman, 13 Abb. 68.
§ 915. Subpoena to witness.-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 loca ted, or pursuant to the laws of the United States, if it is a court of the United States; the commission, notice, or other paper, authorizing the testimony to be taken, may be presented, in behalf of the party desiring to obtain it, to a justice of the supreme court, or a county judge, with proof, by affidavit, that the testimony of the witness is material to the party. The judge must there upon 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 officer 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.
Id. 398, 30, and part of 31, as am'd by L. 1867, ch. 68, 1 (7 Edm. 82), am'd.
§ 916. Contents of subpoena. The place, where the witness is commanded to attend, must be within the county in which he resides or sojourns; or, if it is in another county, not more than forty miles distant from his residence, or the place of his sojourn.
7R. S. 398, remainder of 31, as am'd by L. 1867, ch. 68, § 1.
§ 917. [Amended, 1877.] Subpoena, when no commission is issued. - Where an action, suit, or special proceeding is pending in a court of another state, or of a territory, or of the United States, and proof is made, by affidavit, to the satisfaction of a justice of the supreme court, or a county judge, as follows:
1. That a person, residing or sojourning within the State, is a material witness for either party.
2. That a commission, to take the testimony of the witness, has not been issued.
8. That, according to the course and practice of the court, in which the action, suit, or special proceeding in 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 judge must issue a subpoena, commanding the witness to appear before him, at a specified time, and at a place within the county in which the witness resides or sojourns, to testify in the action, suit, or special proceeding.
Id., 32, remodelled.
§ 918. [Amended, 1877.] 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 i 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 wit ness for either party.
8. 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 la 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.
L. 1831, ch. 191,1 (4 Edm. 637), am'd.
§ 919. Taking and return of deposition-The officer, before whom a witness appears, in a case specified in this article, 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.
Id., 2, am'd.
$920. Penalty for not appearing. A person, who fails to appear, at the time and place specified in a subpoona, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe to 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 of an action in a justice's court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial.
L. 1881, ch. 191, } 3, am'd.
La L. Documentary evidence, as a substitute for oral testin
DOCUMENTARY EVIDENCE, AS A SUBSTITCYR FOR ORAS
Enc. $21. Certain official certificates, evidence. 922. Certificate, etc., on file, evidence. 923. Notary's certificate, evidence.