§ 870. Deposition of a party, etc. [AMENDED BY CH. 416 OF 1877 AND BY CH. 299 OF 1878.] The deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action about to be brought in such a court, other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act, may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial, as prescribed in this article.

§ 871. Deposition of a witness not a party. [AMENDED BY CH. 416 OF 1877.] The deposition of a person not a party, whose testimony is material and necessary to a party to an action pending in a court of record, other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act, or to a person who expects to be a party to an action, about to be brought in such a court, by a person other than the person to be examined, may also be taken, as prescribed in this

article.

§ 872. Application: contents of affidavit. The person desiring to take a deposition, as prescribed in this articie, 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 judg ment 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 tria!; or that any other special 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' testimoney 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. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 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. [AM'D BY CH. 428 OF 1894. Took effect May 23, 1894.]

§ 874. Attendance, how compelled. [AMENDED BY CH. 416 OF 1877.] 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 it he failed to obey a subpœna 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. [AM'D CH. 397 OF 1882. See § 2.]

§ 875. Service of order, etc. [AMENDED BY CH. 542 OF 1879.] 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.

§ 876. Deposition, when and where to be taken. [AMENDED BY CH. 542 OF 1879.] 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 fifty-seven and eight hundred 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.

§ 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 CH. 397 OF 1882.]

§ 878. [Stricken out 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. [AM'D Cн. 397 or 1882. See § 2.]

§ 880. Manner of taking and returning deposition. [AMENDED BY CH. 542 OF 1879. 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 wit ness is bound to answer it.

§ 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.

§ 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 personally 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 diligence, be compelled by subpoena. [AM'D 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.

§ 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.

§ 885. Deposition to be used on motion. [AMENDED BY CH. 416 OF 1877.] 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 cause, 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 motion, 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. The order may be made upon or without notice. The person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a different disposition thereof.

§ 886. 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.

ARTICLE SECOND.

Yover-88

DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE.

SECTION 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 upon oral questions.

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

895. Last two sections not applicable to infants, etc., or foreign countries.

896. Notice of examination upon oral questions.

897. Open commission.

898. Order directing depositions to be taken.

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

900. How depositions taken.

901. Commissions 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 disposition, 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.

8887. When commission to issue, etc. [AMENDED BY CH. 542 OF 1879.] 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.

§ 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.

2. Where final judgment has been rendered against the adverse party in an action brought in a court of record; and the testimony is required in order to carry the judgment into effect.

3. Where an appeal from a final judgment rendered in the supreme court, the city court of the city of New York, or a county court, or a motion for a new trial in either of those courts is pending, and the testimony will be material and necessary to the applicant in the prosecution or defense of the action if a new trial is granted.

4. Where the application is made before the joinder of issue, in an action, brought in either of the courts specified in the last subdivision; and there is reason to apprehend that before issue is joined and an application for a commission can thereafter be made, the witness will die or become unable to give his testimony or remove so that his testimony cannot be taken.

5. Where an issue of fact has been joined in an action pending in a court of record and the testimony is material to the applicant in the prosecution or defense thereof.

6. In special proceedings. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

$889. How and upon what terms granted. In a case specified in subdivision third of the last section, if the appeal has been taken to another court, the application must be made to the court in which the judgment was rendered; and an order, directing the commission to be issued, may be granted or refused, in the discretion of that court. In a case specified in either of the other subdivisions of that section, the application may be made to the court, or a judge thereof, or, in the supreme court, to the county judge of the county, where the action is triable; and it must be granted, upon satisfactory proof of the facts authorizing it, unless the court or judge has reason to believe, that the application is not made in good faith, or unless an order for an open commission, or for taking depositions, is made as prescribed in this article. Notice of the application must be given to the adverse party, unless he is in default for want of an appearance. Upon granting the order, the court or judge may, in any case, impose such terms as justice requires.

$ 890. Order made by judge. Where the order is made by a judge, out of court, it must be entered in the office of the clerk. It shall be granted, only in a case, where the court would grant it, and upon the same terms; and it is subject to the control of the court.

So in the original.