§ 2970. Subpoena; how served.- A subpœna may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying and tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated.

Id., 282.

§ 2971. Warrant of attachment against defaulting witness. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the witness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness.

Id., 83, amended; L. 1834, ch. 235. Baker v. Williams, 12 Barb. 527; Rutherford v. Holmes, 66 N. Y. 368.

§ 2972. Id.; how executed; fees thereupon.- Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the justice, for his omission to attend; in which case, the party procuring the warrant must pay them, and, if he recovers costs, the amount thereof must be allowed to him as part of his costs.

Id., 284.

2973. Id.; when witness is in adjoining county.Where the delinquent witness is within an adjoining county, the constable, to whom the warrant of attach ment is directed, may arrest the witness in that county, and bring him before the justice. The constable, while he is within the adjoining county for that purpose, has all

the powers of a constable of that county, with respect to the warrant so issued to him.

New.

2974. Fine for refusing to attend, or to testify.A person, duly subpoenaed as a witness, who, without a reasonable excuse, proved by his oath or the oath of another person, fails to attend; or, attending, refuses to testify; must be fined, by the justice before whom the action is pending, for each non-attendance or refusal, such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him, as a fine therefor.

R. S., 85, amended. People v. Webster, 14 How. 242; 3 Park. 503; Robbins v. Gorham, 26 Barb. 586; 25 N. Y. 588.

§ 2975. Id.; how imposed-The fine may be summarily imposed by the justice, upon the application of the party in whose behalf the witness was sub poenaed, at any time during the trial, when the defaulting witness is present, and has an opportunity to be heard. If it is not imposed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant, directed generally to any constable of the county, commanding him to arrest the defaulting wit ness, and to bring him before the justice, at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him.

Id., 86. Robbins v. Gorham, 25 N. Y. 588.

2976. Minute of conviction. The justice imposing the fine must enter in his docket-book a minute of the conviction, of the cause thereof, of the amount of the fine, and of the costs. The minute is deemed a judgment against the delinquent, in favor of the officer to whom fines are directed to be paid, by section 2875 of this act.

Id., 87, amended.

$2977. Execution thereupon.-If the whole amount of the fine and costs is not forth with paid to the justice, he must issue an execution, directed generally to any constable of the county, commanding the constable to collect the sum remaining unpaid, of the goods and

chattels of the delinquent, within the county, and, for want thereof, to take him, and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution.

Id., 88.

2978. Money collected; how applied. -- The money collected by virtue of the execution must be forthwith paid by the constable to the justice. The justice must, within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the officer, to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor.

Id., 89.

§ 2979. Defaulting witness liable for damages.— A person, subpoenaed as prescribed in this article, who neglects or refuses to obey the subpoena, or to testify, is also liable to the party, in whose behalf he was sub pœnaed, for all damages which the party sustains by reason of his neglect or refusal.

Id., 290, amended.

ARTICLE THIRD.*

COMMISSION TO TAKE TESTIMONY.

SEC. 2980. Commission to examine witness upon interrogatories,

2980. Commission to examine witness upon interrogatories. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or

*This article is made applicable to District Courts in New York city, y Consolidation Act of 1882 (ch. 410), 1368.

defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice.

L. 1838, ch. 243, 82, amended: L. 1847, ch. 329 (4 Edm. 640). Allen v. Edwards, 3 Hill, 499; Eaton v. North, 7 Barb. 631.

§ 2981. Id.; orally.— If both parties expressly consent, a commission, granted as prescribed in this article, may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given.

New.

2982. When and how granted. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, upon the application of either party, accompanied with proof, by atlidavit, that six days' written notice of the application has been served upon the adverse party, either personally, or by service upon the attorney, who appeared for him before the justice.

L. 1838, ch. 243, 3

2983. Adjournment. Where a commission is granted upon the application of the plaintiff, he is entitled to one or more adjournments of the trial, as may be necessary to procure the commission to be executed and returned; not exceeding the length of time for which the trial might be adjourned upon the application of the defendant.

L. 1831, ch. 138, 1 (4 Edm. 548).

$2984. Execution and return of commission.-The commission must be executed and returned, as pre

scribed in section 901 of this act; and a copy of that section must be annexed thereto, except that subdi vision sixth thereof may be omitted.

Substituted for L. 1838, ch. 243, 4 (4 Edm. 641).

2985. Receipt thereof by justice.-The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post-office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him, until the trial; but either party is entitled to inspect it on file.

See note to last section.

Sections 902

2986. When deposition evidence. and 903 of this act apply to a commission, issued as prescribed in this article; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect speci fied in section 911 of this act.

Same as last section.

Where the

2987. Powers of commissioners. commission is executed within the State, the commis sioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has, in an action pending before him. L. 1841, ch. 138, 2 (4 Edm. 546).

TITLE V.

Trial and its incidents.

SEC. 2988. Effect of failure of defendant to appear. 2989. When justice to try issue of fact.

2990. When jury trial may be demanded.

2991. Venire.

2992. Id.; in action between two towns, etc.

2993. Delivery, execution, and return of ventre.

2994. Ballots; how prepared.

2995. Drawing jury.

2996. Talesmen.

2997. New venire.

2998. Juror's oath.

2999. Jury to hear proofs.

3000. Witness's oath.

3001. Witness refusing to be sworn, etc. Warrant thereupon