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by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then giver or by the witness.

$967. Where, upon a trial, a warrant of attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial, for such a time as he deems necessary for the return of the warrant, not exceed ing five days.

2968. The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, with out the consent of both parties, except in one of the follow ing cases:

1. Where a venire has been duly issued, but a jury has not be n procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured.

2. Where a jury has not been able to agree upon a ver dict and is discharged, the trial may be adjourned a suffcient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter.

3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days.

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§ 2969. A justice of the peace may issue a subpœna, tc compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves. by his own oath, or the oath of another person, that an ac tion is actually pending before the other justice.

178.

2539. Upon the application of a party to a special 10 Civ. Pra proceeding, and upon proof, by aflidavit, to the satisfaction of the surrogate, that the testimony of a witness in his county, who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revocation of probate of a will, and, in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Such a notice of the time and place of taking the examination, as the surrogate prescribes, must be given, by the party apply. ing therefor, to each other party, except a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person interested.

§ 2540. [Am'd 1881.] In a case specified in the last section, except that the witness is in another county, where the witness is a subscribing witness to a will, if the surrogate has good reason to believe that the witness cannot attend before him, within a reasonable time, to which the hearing may be adjourned, he may make an order, directing that the witness be examined before the surrogate of the county in which he is, specifying a day, on or before which a certified copy of the order must be delivered to the latter surrogate; and directing notice of the examination to be given to such persons, and in such manner as he thinks proper. A copy of the order, attested by the seal of the surrogate's court, must be transmitted, by him, to the surrogate designated in the order, together with the original will where the testimony relates to the execution of a written will. The latter surrogate must thereupon, on the day specified in the order, or on another day to which he may adjourn the examination, take the examination of the witness, as if he possessed original jurisdiction of the special proceeding. The examination, after it is reduced to writing, and subscribed by the witness or otherwise duly authenticated, together with a statement of the proceedings upon the execution of the order, must be certified by the surrogate taking the examination, attested by the seal of his court, and returned without delay, with the original will, if any, to the surrogate who directed the examination, by whom all those papers must be filed. And in the other cases named in said section two thousand five hundred and thirty-nine he may appoint a referee to take the testimony who shall report the same to the said surrogate. An examination so taken has the same effect as if it was taken before the latter surrogate.

2541. The stenographer of a surrogate's court must, under the direction of the surrogate, take full stenographic notes of all proceedings, in which oral proofs are given, except where the surrogate otherwise directs. The testi

§ 1195, Congol. Act.

3 Dem. 324.

mony must be legibly written out at length by him, from his notes; and the minutes thereof, as so written out, must, after being authenticated, as prescribed in the next section, be filed in the surrogate's office.

§ 2542. [Am'd 1881.] The minutes of testimony, writ ten out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testifying, must, before being filed, be authenticated by the signature of the stenographer, referee, the surrogate or the clerk of the surrogate's court, as the case may be, to the effect that they are correct.

§ 2543. In the city and county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed "Stenographic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surrogate must cause to be made a minute, referring to each volume of the stenographic minutes, and to the pages thereof, containing any testimony relating to the matter.

§ 2544. A person is not disqualified or excused, from 113 N. Y. 62. testifying respecting the execution of a will, by a provision therein, whether it is beneficial to him or otherwise.

19 Week.

Dig. 110.

88 N.Y. €56. 89 N. Y 1.

92 N. Y. 181. 32 Hun, 429. 95 N.Y. 516.

3 Dem. 258.

103 N. Y.470.

43 Hun, 98.

111 N. Y.239.

125 Id. 732. 136 Id. 520.

1.

2545. An exception may be taken to a ruling by a surrogate, upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an issue of fact, as prescribed in article third of title first of chapter tenth of this act. The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a surrogate; for which purpose, the de146 N.Y. 121. cree is regarded as a judgment, and a notice of an excep 4 App. Div. tion may be filed in the surrogate's office. Upon such a trial, the surrogate must file in his office his decision in writing, which must state, separately, the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law; and an excep tion may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. An appeal from a decree or an order of a surrogate's court brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appel lant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.

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.

§ 2981. 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 nine hundred 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.

2982. 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 affidavit, 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.

2983. Where a commission is granted upon the 46 Hun, 370 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.

2984. The commission must be executed and returned, as prescribed in section nine hundred and one of this act; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted.

§ 2985. The justice, to whom the package containing 78 Hun, 515. 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.

§ 2988. Sections nine hundred and two and nine hun dred and three 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 specified in section nine hundred and eleven of this act.

§ 2987. Where the commission is executed within the 78 Hun, 515, State, the com.missioner, 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.

24 N. Y.

thereof. The appeal shall be heard upon a case containing all the evidence; and an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the discretion of the court, be disregarded if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termination of the proceedings for its review, the verdict is sustained, the supreme court shall certify to the surrogate's court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate's court. The original will shall be returned to the surrogate's court at the time the verdict is certified thereto. The costs shall be taxed in the surrogate's court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate.

§ 2548. [Am'd 1886, 1835, amendment to take effect JanState Rep. uary 1, 1896.] A trial by jury pursuant to an order made in 647. a proceeding for the disposition of the real property of a de

cedent, made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at a trial term of the supreme court by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury pursuant to an order for such trial, made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court by the clerk of the court in which the trial took place.

§ 2549. An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court.

ARTICLE THIRD,

DECREES AND ORDERS; AND THE ENFORCEMENT THEREOF.
COSTS AND FEES.

§ 2550. Definition of "final order"

and "decree."

2551. Decree settling an ac-
count, to contain sum-
mary thereof.

2552. Decree or order; when
evidence of assets.
2553 Decree for money; how
docketed.

2554. Enforcement of decree by
execution.

2555. Id.; by punishment for
contempt.

2556. Definition of "order';
how enforced.
2557. Costs; how made payable.
2558. Id.; when awarded.
2559. Id.; how awarded.
2560. Id.; when the same as in
supreme court,
2561 When surrogate
amount of costs.

to fis

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