1 § 891. Interrogatories; how settled. Unless the interrogato ies, to be annexed to the commission, are settled by consent of the parties, they must be settled, upon notice, by a judge of the court, or, in the supreme court, by the county judge of the county where the action is triable, as prescribed in the general rules of practice. $ 892. Id.; to be annexed; directions for return. The interrogatories, when settled, must be annexed to the commission. Either party must be allowed to insert therein any question pertinent to the issue which he proposes. Unless the parties stipulate in writing, or the order granting the commission prescribes how it shall be returned, the judge must indorse upon the commission the proper direction for that purpose. Unless the court or judge thinks proper to direct it to be returned by an agent, it must be returned through the post-office. § 893. Commission to examine wholly or partly upon oral questions. Where an issue of fact, joined in an action, is pending in the supreme court, the city court of the city of New York, or a county court, the parties may stipulate, in writing, or the court to which, or the judge to whom, an application for a commission is made, may, in its or his discretion, direct, in the order, that a commission issue without written interrogatories, and that the depositions be taken upon oral questions; or that a commission issue to take the deposition of one or more witnesses, designated in the order, partly upon oral questions and partly upon written interrogatories, or to take the deposition of one or more witnesses, designated in the order, upon oral questions, and one or more witnesses, designated in the order, upon written interrogatories. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.] $894. When open commission may issue, or depositions may be taken. Where an issue of fact, joined in an action, is pending in either of the courts specified in the last section, the parties may stipulate, in writing, or the court, or a judge thereof, or, in the supreme court, the county judge of the county where the action is triable, may in its or his discretion, upon the application of either party, and upon satisfactory proof, by affidavit, that one or more witnesses, not within the State, are material and necessary in the prosecution or defence of the action, make an order, upon such terms as it or he deems proper, directing that an open commission issue, or that depositions be taken, as prescribed in the following sections of this article. $895. Last two sections not applicable to infants, etc., or foreign countries. [AMENDED BY CH. 542 OF 1879.] The last two sections are not applicable where the adverse party is an infant, or the committee of a person judicially declared to be incapable of managing his affairs, by reason of lunacy, idiocy, or habitual drunkenness; or where the testimony is to be taken elsewhere than in the United States, or in Canada. Nor can the applicant be examined in his own behalf, as prescribed in those sections, except by consent of the parties. § 896. Notice of examination upon oral questions. Where a commission is issued to take testimony without written interrogatories, as prescribed in section eight hundred and ninety-three, or section eight hundred and ninety-four of this act, notice of the time and place of the examination of a witness, by virtue thereof, naming the witness, must be served as prescribed in section eight hundred and ninety-nine of this act. § 897. Open commission. An open commission must be directed to one or more persons, named therein, and must authorize them, or any one of them, to examine any witness who may be produced by either party, on or before a day specified therein, upon oral questions to be put to the witness, when he is produced; to take and certify the deposition of each witness so examined; and to return the same, and the commission, immediately after the expiration of the time limited for the production of witnesses, according to the directions given in or with the commission. § 898. Order directing depositions to be taken. An order directing that depositions be taken, must specify the time within which they must be taken, and the manner in which they must be returned. It may also contain such additional directions, not inconsistent with the next section, with respect to the time and manner of giving notice, as the court or judge deems proper. The order must be entered in the clerk's office; and a certified copy thereof must be annexed to each deposition, or set of depositions, returned as prescribed in the following sections of this article. $899. Before whom depositions may be taken; notice of taking. A deposition may be taken, pursuant to such an order, before a person mutually agreed upon by the parties, or a chancellor, or a judge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the State or Territory, where the witness is; who is not counsel or attorney for either party, and would not be disqualified, by reason of affinity or consanguinity to a party, or interest in the event, from serving as a juror upon the trial of the action, within the State. Written notice of the time and place of taking a deposition, specifying the name of the witness, and the person before whom it will be taken, must be served by the party, at whose instance it is taken, upon the attorney for the adverse party. The time for serving such a notice must be, at least, five judicial days before the deposition is taken; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken. § 900. How depositions taken. Upon the examination of a witness, without written interrogatories, by virtue of a commission, or of an order to take depositions, the commissioner, or the person before whom the deposition is taken, must take down, or cause to be taken down, as prescribed in the next section, the substance of the witness's testimony; unless he is directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word. Unless the commission or order otherwise directs, the person, appearing for either party, may ask any question, which he deems proper, and the witness's answer must be taken accordingly, the objections thereto being reserved, without being specified at the time of examination. A copy of this section must be annexed to each commission to take testimony without written interrogatories, and to each certified copy of an order to take a deposition. § 901. Commission or order to take depositions; how executed and returned. The person, to whom a commission is directed, or before whom a deposition is taken, unless otherwise expressly directed in the commission, or in the order for taking the depositions, must execute the commission, or the order, as follows: 1. He must publicly administer, to each witness examined, an oath or affirmation to testify the truth, the whole truth, and nothing but the truth, as to the matters respecting which the witness is to be examined. 2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing, by a disinterested person. After it has been carefully read, to or by the witness, it must be subscribed by the witness. 3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof, must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered or otherwise identified, in writing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto. 4. The commissioner or person taking the deposition, must subscribe his name to each half sheet of the deposition; he must annex all the depositions and exhibits to the commissions, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section; and he must close them up under his seal, and address the packet to the clerk of the court, at his official residence. 5. If there is a direction, on the commission, or in the order, to return the same through the post-office, he must immediately deposit the packet, so addressed, in the post-office, and pay the postage thereon. 6. If there is a direction, on the commission, or in the order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet so addressed must be delivered to the agent. 7. Where a commission is directed to two or more persons, one or more of them may execute it, as prescribed in this and the next section. A copy of this and of the next section must be annexed to each commission, or order to take depositions, authorized by this article. § 902. Certificate of execution. The commissioner or other person, before whom one or more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up: "State" (or "Territory ")" of "I, before me on the noon, at the day of " SS. at the witness, personally appeared o'clock in the , in the "State" (or "Territory ")" of and after being sworn" (or "affirmed," as the case may be), "to testify the truth, the whole truth, and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence, subscribe the same, and indorsed the exhibits annexed thereto. And I further certify that I have subscribed my name to each half-sheet thereof, and to each exhibit. And I further certify that appeared in behalf of the appeared in behalf of the and that § 903. Certificate a sufficient return. The certificate specified in the last section, is a sufficient return to a commission. § 904. Return by agent. If the packet, specified in section nine hundred and one of this act, is delivered to an agent, he must deliver it to the clerk, to whom it is addressed, or to a judge of the court, either of whom must receive and open it, upon the agent making affidavit, that he received it from the hands of the commissioner, or the person who took the deposition, and that it has not been opened or altered, since he so received it. § 905. If agent is sick or dead. If the agent is dead, or, from sickness or other casualty, is unable to deliver the packet personally, as prescribed in the last section, it must be received, by the clerk or judge, from the hands of any other person, upon the latter making an affidvit, that he received it from the agent; that the agent is dead, or otherwise unable to deliver it; that it has not been opened or altered since he received it and that he believes that it has not been opened or altered, since it came from the hands of the commissioner, or the person who took the deposition. § 906. Filing deposition, etc., so returned. The clerk or judge, who receives and opens the packet, as prescribed in the last two sections, must indorse thereupon, and sign, a note of the time of the receipt and opening thereof, and immediately file it in the office of the clerk, together with the affidavit of the person who delivered it to him. $907. The same. If the packet is transmitted through the post-office, the clerk, to whom it is addressed, must receive it from the post-office, open it, indorse thereupon, and sign, a like note of the time of the receipt and opening thereof, and immediately file it in his office. § 908. Commission, etc., by consent. A commission may issue, or an order to take depositions may be made, by consent, in a case where either may be directed by the court or a judge, as prescribed in this article. On filing a stipulation to that effect, signed by the attorneys for the parties, the clerk must enter an order accordingly; and thereupon the attorney for the party, procuring the order, may insert in the commission, or indorse upon or annex to it, or the order, the necessary directions for the execution and return thereof, according to the stipulation. § 909. Where return to be kept; parties may inspect it, etc. A commission, or copy of an order to take depositions, with the certificates, returns, depositions, 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 allowed by law. $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 application of the party aggrieved, upon notice to the adverse party. § 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. § 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 interroga tories 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. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.] § 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. SECTION 914. In what cases deposition may be taken. 915. Subpoena to witness. 916. Contents of subpoena. 917. Subpoena, when no commission is issued. 918. Justice of the peace may subpoena witness. 920. Penalty for not appearing. § 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, 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. § 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 located, 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 thereupon issue a subpoena to the witness, commanding him to appear before the commissioner named in the commission; or before a com |