party is not empowered by the statute to go into a course of irrelevant inquiry, and have answers thereto included in the deposition. (Gibson v. Pearsall, 1 Smith, 90). "The defendant insists that the deposition of Vanderslice was improperly admitted, on the ground that an officer taking the examination of a witness de bene esse, is bound by statute to receive and take down every answer to questions proposed; and that in this case, the judge before whom the deposition was taken refused to allow a question presented by the defendant's counsel on cross-examination, to be put to the witness at all. The statute is very explicit in its terms,' requiring the officer to insert in the deposition every answer or declaration of the witness examined, which either party shall require to be included therein. It is in my judgment unreasonable and very unfortunate, if the proper construction of this statute permits a party who has a witness under examination to make that the occasion for going into every species of irrelevant inquiry into matters having no possible connection with the controversy; and the abuses to which such a construction may lead, seem to me too obvious to require enumeration." Ib. Woodruff, J.

a. The deposition being finished, must be carefully read over to, and subscribed by, the witness, certified by the judge or referee taking it, and filed in the clerk's office within ten days thereafter; but where a deposition taken de bene esse is not filed within ten days as directed by the statute, the court may order it to be filed nunc pro tunc. Burdell v. Burdell, 11 Leg., Obs. 189.

6. If a witness, on being summoned to attend for the purpose of being examined de bene esse, fail to comply with the summons, the judge issuing the summons, on due proof of the service, and of the failure of the witness, is required to issue his warrant to the sheriff of the county, to apprehend the witness, and bring him before such judge to be examined. And if any witness, attending pursuant to summons or brought before the officer, shall without reasonable cause, refuse to be examined or to answer any legal or pertinent question, or to subscribe his deposition when taken, the officer issuing the summons, shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged recording to law.

c. The deposition thus taken de bene esse (or a certified copy thereof), may be given in evidence by either party on the trial of the cause, or upon the assessment of damages by the clerk, or by a writ of inquiry. But it must first be satisfactorily proved that the witness is unable to attend the trial or assessment, personally, by reason of death, insanity, sickness, or settled infirmity, or that he has continued, absent from the State, so that his attendance could not be compelled by the ordinary process of law. Where the residence of a party in another State, at a given time, has been proved, the presumption, unless rebutted, is that it continues, and the burthen of proof is upon the party alleging a different place of residence. Nixon v. Palmer, 10 Barb., 175.

d. Is a party against whom a deposition taken de bene esse is offered, a competent witness for the purpose of excluding the deposition? (Ib.)

e. The uncorroborated testimony of an interested witness, that shortly before the trial he saw in this State a person proved by other testimony to be a resident of another State, is not sufficient to authorize the exclusion of a deposition of such person taken de bene esse. Ib.

f. The party offering the deposition in evidence, cannot rely merely upon the presumption of the inability of the witness to attend the trial, arising from his advanced age. 3 Wend., 180. And, in case of the absence of a witness, the party offering his deposition in evidence must prove that he has used due diligence to procure the attendance of the witness, and that he has made inquiries at his last place of abode, in order to have him subpoenaed. 4 Wash. C. C. Rep., 219.

g. The preliminary proof may be made by affidavit, unless the proof is objected to specifically on the ground that it is by affidavit, and viva voce testimony insisted on. 7 Cow., 59. The preliminary proof may be made by a party to the suit. Harris v. Ely, Court of Appeals, Dec., 1852.

h. The deposition of a foreign witness, taken de bene esse, may be read, though it appear that he came into this State on request of the party, for the purpose of

being examined, and that he is at home in a foreign country, and might have been examined on a commission, and even though a commission may have been obtained for the purpose of examining him at his foreign residence. 7 Cow., 69.

a. The opposite party may prevent the reading of the deposition, by satisfactory proof that sufficient notice was not given him to enable him to attend the examination of the witness, or that the examination was not, in all respects fair, aud conducted according to the statute. But he cannot object that the notice was too short, where he appears before the officer and omits there to object for that reason. 7 Cow., 59.

b. The reading of the deposition may be prevented by proof that the witnesses' attendance might, with due diligence, be obtained. 8 Barb., 530.

c. Where, after testimony has been taken conditionally, one of the plaintiffs dies, and the action is continued by the survivor, under section 121, this testimony, so taken, is admissible on the trial, just as though no change in the parties had taken place. Markoe v. Aldrich, 1 Abbott, 55.

d. Testimony taken conditionally may be read on the trial if the witness is actually absent, notwithstanding the witness in the interval between the taking of testimony and the time of trial has returned to the State. Ib.

EXAMINATION OF WITNESSES ON INTERROGATORIES BY CONSENT.

Said

e. On and after the first Monday of July, 1847, the testimony of any competent witness may be taken in this State, to be used in any civil suit or proceeding, on an agreement in writing to that effect being made between the parties, their attorneys or solicitors, and on interrogatories to be agreed upon in the same manner. testimony may be taken before a judge of any court of record of this State, or local officer elected to discharge the duties of county judge, or a justice of the peace of this State, who shall, before the interrogatories are put to him, publicly administer an oath to the witness that the answers given to said interrogatories shall be the truth, the whole truth, and nothing but the truth; and the testimony shall be duly and carefully reduced to writing by the officer, and read to the witness, and subscribed by him and certified by the officer. The testimony so taken, together with the interrogatories, shall be filed with the clerk of the court in which the suit or proceeding shall be pending; and, if in the supreme court and taken in a suit or proceeding at law, the same shall be filed with the clerk of the county in which the venue is laid; if in equity, with the clerk of the county in which the suit or proceeding shall be pending; and if before any court or officer having no clerk, then with said court or officer. And said testimony may be used in evidence on any trial or hearing of such suit or proceeding; and every objection to the competency or credibility of said witness, or to the competency and relevancy of any answer given by him, may be made in the same manner and with the like effect at if such witness was personally examined at such trial or hearing. Laws of 1847, ch. 280, sec. 78; 2 R. S., 4th ed., 374, sec. 50.

f. The deposition thus taken de bene esse, is to have the same effect, and no other, as the oral testimony of the witness would have if given on the trial or assessment; and every objection to the competency or credibility of the witness, and to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if the witness were personally examined on the trial or assessment.

SECTION 400. 401.

402.

CHAPTER VIII.

Motions and Orders.*

Definition of an order.

Definition of a motion. Motions how and where made.
Notice of motion.

403. In actions in supreme court, county judge may act at chambers.

His orders, how reviewed.

404. In absence of judge at chambers, motion may be transferred by him to another judge.

405. Enlarging time for proceedings in an action.

§ 400. [357.] Definition of an Order.

Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.

a. All motions are to be on notice, or order to show cause. See Supreme Court Rule 25.

b. An application to the court to remove a mere technical difficulty by which other parties cannot be affected, may be made ex parte. Re Patterson, 4 Pr. R., 34.

c. Except in the city of New York, and with the exception of certain cases specified by law in which a motion may be made at chambers, motions must be made either at a general or special term. Bedell v. Powell, 3 Code Rep., 61-63.

d. A motion for a new trial and assessment of damages, under the general road law (Laws of 1847, c. 210), can only be made at a special term. In Re Fort Plain and Cooperstown Plank Road Co., Ex parte Ransom, 3 Code Rep., 148.

e. A party complaining of any proceeding in a cause, must embody all objec tions then existing in one motion; he cannot make a separate motion for each objection. Thus where a plaintiff moved to set aside a demurrer as irregular, and failing in that, moved to set aside the demurrer as frivolous, held that the second motion could not be entertained. Desmond v. Wolfe, 1 Code Rep., 49.

f. Motions, except in the first district, are to be noticed for the first day of the term, and to be accompanied with copies of the affidavits, &c., on which the motion is to be made. See Supreme Court Rule 32.

g. The particular grounds of a motion should appear plainly, either by the notice of motion or the affidavits. Ellis v. Jones, 6 Pr. R., 296; and see Supreme Court Rule 25.

h. A notice of motion cannot be so countermauded by the party who has given it, as to deprive the opposite party of the right of attending on the day specified, and having the motion dismissed with costs. Bates v. James, 1 Duer, 668. Approved by all the judges of the superior court.

i. Where a motion is noticed for a day out of an appointed term, it must be brought on on the day specified. And where the moving party does not appear on that day, he is not entitled to his motion by default on a subsequent day. Vernovy v. Tauney, 3 Pr. R., 360; see sec. 404.

j. If no one appears to oppose, on proof of due service of notice of the motion

a. The distinction between "an order" and "a judgment," is this. An order is the decision of a motion, a judgment is the decision of a trial. By the court, Parker, Watson, and Wright, JJ., in Bentley v. Jones, 3 Code Rep., 37; King v. Stafford, 5 Pr. R., 30. The words, "rule and order," in no case mean a "judgment." The word, "order," is made to exclude the idea of a "judgment." It means the written direction of a court or judge, other than a judgment, and not included in it. Darrow v. Miller, 3 Code Rep., 241.

b. The "warrant of attachment," signed by the judge, or his allowance endorsed thereon, is clearly a "direction in writing," within the above definition of an order. Conklin v. Dutcher, 1 Code Rep. N. S., 49; Bank of Lansingburg v. McKie, 7 Pr. R., 364; Morgan v. Avery, 2 Code Rep., 91.

See note to subdivision 6, of section 307, p. 484 ante, and note to section 245, p. 344, ante.

§ 401. [358 to 362.] (Amended 1849-1852.) Definition of a motion. Motions how and where made.

(1.) An application for an order is a motion.

(2.) Motions may be made in the first judicial district, to a judge or justice out of court, except for a new trial on the merits.

the moving party is entitled to the order asked for (Supreme Court Rules, 25, 26), but not more than is asked for. Thus, if the notice of motion does not state that costs will be asked for, but that the party will apply "for such other and further order as the court may deem proper," it would be deemed irregular to take by default an order for the relief asked for with costs. Northrup v. Van Deusen, 3 Code Rep., 140. And, in the court of appeals, an order will not be permitted to be taken by default which interferes with the power of the court in controlling the calendar. Crain v. Rowley, 4 Pr. R., 79. And, if even no one appears to oppose, yet if the service, or proof of service, is insufficient, the court will deny the motion. 3 Caines' R., 88.

c. When the notice of motion concluded by stating that the moving party “will ask for such further or other relief as the court may grant," Cady, J., said, Relief has sometimes been granted on a notice as general as this; but I am inclined to believe that it would tend to prevent surprise, if the court would not listen to a prayer until the petitioner has discovered and is able to give notice of what he wants. Mann v. Brooks, 7 Pr. R., 457.

d. If it is intended to take any objections to a motion of a merely technical character, they should be raised before the merits of the motion are gone into; otherwise they will be considered as waived. 3 Caines' R., 105.

e. Although a party making a motion is not ordinarily allowed to read affidavits in support of his motion, copies of which have not been served, yet in cases where the affidavits read in opposing a motion introduce new matter which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of obtaining affidavits to contradict or explain the new matter alleged, especially when the new matter charges the moving party with bad faith. Schermerhorn v. Van Vorst, 1 Code Rep. N. S., 400.

f. Where a party in his notice of motion served on the adverse party, asks for a specific relief, or for such other or further order as may be just; the court may afford any relief compatible with the facts of the case presented. The People v. Turner, 1 California Rep., 152.

g. It is irregular to grant affirmative relief to a party opposing a motion, upon matters appearing in the opposing papers, which the moving party has no oppor tunity to answer. Garcie v. Sheldon, 3 Barb, 232.

(3.) Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein, (4.) and no motion can be made in the first district in an action triable elsewhere. (5.) Orders made out of court, without notice, may be made by any judge of the court, in any part of the State; and they may also be made by a county judge of the county where the action is triable, except to stay proceedings after a verdict.

(6.) No order to stay proceedings for a longer time than twenty days, shall be granted by a judge out of court, except upon previous notice to the adverse party.

a. An opposing party is sometimes allowed to amend a defect in his proceedings, without being put to a motion on his part. But this is allowed only in cases where the court can see, from the nature of the case, that no valid objection can be made to the amendment in case a motion is specifically made for that purpose. Ib.

b. Where, after a motion had been heard and decided, it appeared that the affidavit used to oppose did not contain any jurat or signature of any officer before whom sworn, leave was granted to the party to reswear the affidavit. 8 Pr. R., 187 n. It must be presumed that the judge was satisfied that the affidavit had in fact been sworn, and that the omission of the jurat and commissioner's signature was unintentional and the result of accident.

c. It is the duty of the respective attorneys to file the papers used by them on a motion, and of the prevailing party to see that the order is entered conformably to such decision. Savage v. Relyea, 1 Code Rep., 42.

d. A special motion cannot be renewed without leave of the court for that purpose obtained. Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch. 5 Hill, 493; Allen v. Gibbs, 12 Wend., 202; Willet v. Fayerweather, 1 Barb., 73; Bellinger v. Martindale, 8 Pr. R., 113; Bowman v. Sheldon, 5 Saud., 657.

e. As to costs on a motion, see sec. 315 and note; and as to motions for extra allowance, see sec. 308 and note; and generally, as to motions, see Supreme Court Rules 27, 28, 29, 32, 33, 39, and 40.

f. It seems the distinctions between orders and non-enumerated motions, are abolished in suits commenced since the code took effect. Low v Cheney, 1 Code Rep., 29-39.

g. Where an order is granted on a condition, the condition must be performed within twenty-four hours, unless otherwise expressed in the order. Sabin v. Johnson, 7 Cow., 421.

h. An order granted on payment of costs is a conditional order, and it is of no force unless the costs be paid instanter, i. e. within twenty-four hours; and the party who is to pay costs must seek out the other party to make a tender of the costs. Pugsley v. Van Allen, 18 Johns. R., 352. And he must, at his peril, take notice of the order of the court, without waiting to be served with a copy of the order. Willink v. Renwick, 22 Wend., 608. And if the party neglect to pay the costs on demand, the other party may proceed as if no such order had been made. Pugsley v. Van Allen, 18 Johns. R., 352.

i. Where an order requires an act to be done, and costs to be paid, the payment of costs is not a condition precedent to the doing the act. 4 Sand., 647.

j. After an order of the court in a cause, a further order of a judge at chambers on the same subject is irregular. Stansbury v. Durell, 1 Johns. C., 396. See Supreme Court Rules 27, 28, 38, 82.