i. Competency of a witness-interest. A deposition cannot be excluded solely for the reason that interest renders the witness incompetent to testify at the time the deposition was taken, provided his oral testimony would have been admitted at the trial, notwithstanding such interest. Fielden v. Lakens, 9 Bosw. 436; S. C. 3 Trans. App. 218; 6 Abb. N. S. 341.

j. Deposition may be read by opposite party.-Where a party takes out a commission, and afterwards refuses to put it in evidence, the opposite party may do so. Weber v. Kingsland, 8 Bosw. 415. See, also, Gellatly v. Lowery, 6 Bosw. 113, 122.

k. Filing may be nunc pro tunc.Where testimony is taken conditionally, and the party at whose instance it was taken neglects to file within ten days the original deposition as is required by 2 Revised Statutes, 373, this neglect may be cured by granting him leave to file the same nunc pro tunc. Bank of Silver Creek v. Browning, 16 Abb. 272; S. C. Aff'd, 24 How. 609 (n.)

1. Commission in justice's court.For full and complete notes in this matter, see 2 Wait's Law & Pr. 563 to 577.

m. Issuing a second commission.— Where a proper case is made out, a second commission will be issued. Fisher v. Dole, 17 Johns. 343; Washington Bank of Westerly v. Palmer, 2 Sandf. 686; S. C. 8 N. Y. Leg. Obs. 92; Bank of Ithaca v. Bean, 1 Code R. 133; S. C. 7 N. Y. Leg. Obs. 25; Nichol v. Columbian Insurance Co. 1 nes R. 345; Coles v. Thompson, 2 id. 47 ; is v. Smith, id. 253.

n. Pleadings amended - effect. Where the pleadings are amended subsequent to the return of a commission, the deposition can still be read in evidence, provided the real issue is not changed. If, in such a case, further testimony is required, a motion for a further commission is proper. A motion to suppress the first depositions would be proper where the testimony is inapplicable to the new issues. Vincent v. Conklin, 1 E. D. Smith, 203.

o. Who has the power to issue the commission.—A judge at chambers, or a county judge of the county in which the action is to be tried, has power to issue the commission. 2 R. S. 374, § 12. The Laws of New York, 1852, page 643, § 8, and id. 1857, ch. 344, § 30, provide that the marine court and the district court of the city of New York may also issue commissions to take the testimony of absent witnesses.

p. Examination of co-defendant.Where an action is commenced by an assignee, on contract, to recover a joint demand against three defendants, one of whom does not answer, held, that the defendants answering could have a commission, in order to procure the testimony of their co-defendant. Shufelt v. Power, 10 How. 286.

q. Analysis of section 399, as amended in 1857.- 1st. A party to an action or proceeding, and a party for whose immediate benefit a suit is prosecuted or defended, may be examined as a witness in his own behalf, the same as any other witness, in all cases, except where the adverse party, or adverse person in interest, is not living; or, where the opposite party is an assignee, administrator, executor, or legal representative of a deceased person;

2d. Ten days' notice, in writing, of such intended examination must be given to the adverse party, specifying the points upon which the party or person is intended to be examined. But in special proceedings of a summary nature, such reasonable notice shall be given as shall be prescribed by the court or judge;

3d. Where notice of such examination is given, and the opposite party resides out of the jurisdiction of the court, such party may be examined by commission, issued and executed as now provided by law;

4th. If a party or person in interest have been examined under this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received.

Now, the ten days' notice and the points of examination apply only to the party or person in interest offering himself as a witness, on the original application, in his own behalfnot to the opposite party. The law admits him, of course, and at large upon all the issues, whether his examination is upon commission or otherwise. Burling v. Ogden, 14 How. 75; S. C. 6 Duer, 681.

r. Power of judge to perpetuate testimony-A judge of the supreme court has power to order a deposition to be taken before the county judge of any county in this State, under that provision of the revised statutes entitled "Of proceedings to perpetuate testimony." A county judge has the same power. Sheldon v. Wood, 2 Bosw. 267; S. C. Aff'd, 24 N. Y. (10 Smith), 607, sub nom. Byxbie v. Wood.

the circumstances hereinafter prescribed.

§ 2. The party desiring the examination of a witness may apply to any judge of the court, upon an affidavit, which shall state:

1. The nature of the action and the plaintiff's demand;

2. If the application be made by the defendant, the nature of his defense;

3. The name and residence of the witness; 4. That the testimony of such witness is material, and necessary for the party making such application, in the prosecution or defense of such suit, as the case may be; and,

5. That such witness is about to depart from this State, or that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial of such suit. The time fixed for the examination, as above provided, must not exceed twenty days from the date of such order; and if the exigencies of the case require it, the time may be shorter. See, also, Laws of N. Y. 1851, ch. 472, p. 871, and id. 1852, ch. 324, § 2, p. 471.

b. Deposition of witness on former trial. Where a witness is still living, although in another State, his deposition

taken on a former trial between the same parties, cannot be read in evidence. Weeks v. Lowerre, 8 arb. 530. See, also, Wilbur v. Selden, 6 Cow. 162.

that the adverse party had notice of the examination, and appeared; under objection he afterwards cross-examined the witnesses. Held, that the deposition taken under such circumstances became effectual proof in the cause. Rushmore v. Hall, 12 Abb. 420. It is held, in Jackson ex dem. Green v. Kent, 7 Cow. 59, that a party cannot object that the notice for an examination de bene esse did not give him time to prepare for the examination, where he appears before the commissioner, and at that time omits to object for that reason, but puts his objection on other grounds. cessary. It is not necessary that the witness h. Uninterrupted absence not netime of taking the testimony until the beginshould be uninterruptedly absent from the ning of the trial, in order that a deposition taken de bene esse may be read upon such trial. It is only necessary to show that the witness whose testimony is offered, is not in the State at the time of the trial. Markoe v. Aldrich, 1 Abb. 55.

d. Discretion of the officer-what answers excluded.-Semble, that the requirements of the statute, which require that the officer before whom depositions, de bene esse, are taken, shall insert every answer of the witness examined, which either party shall require, is sufficiently complied with, if the officer excludes the answers to questions which are in his opinion illegal and irrelevant. Gibson v. Pearsall, 1 E. D. Smith, 90.

e. Documents proved on the examination.-A party who has proved the execution of documents upon the examination of a witness de bene esse, is not required, on the call of his opponent, to produce those documents. The party proving them may control them until they are read in evidence. He has it within his election, to read a portion of them, and refrain from using the others. The opposite party must procure a discovery of them before the trial, or be prepared with parol evidence of the contents, on a refusal to produce them. Edmonstone v. Hartshorn, 19 N. Y. (5 Smith), 9.

f. Filing of deposition.—It is within the power of the court, after the ten days prescribed by the statute have elapsed, to allow the deposition to be filed, nunc pro tunc. Burdell v. Burdell, 11 N. Y. Leg. Obs. 189; S. C. 1 Duer, 625. See, also, Bank of Silver Creek v. Browning, 16 Abb. 272; S. C. Aff'd, 24 How. 609 (n.)

g. What will be a waiver of objection-An order was granted for the examination of a witness de bene esse; it was shown

the State only a little while before the trial, was insufficient to prevent the introduction of the testimony. Nixon v. Palmer, 10 Barb. 175; S. C. 8 N. Y. (4 Seld.), 398.

j. Depositions de bene esse, in criminal cases.-The common law furnishes no authority for taking depositions in criminal cases out of court, without the consent of the defendant. The public prosecutor cannot, on his own motion, cause witnesses to be examined de bene esse, even after indictment found. The defendant, however, has such right. The exact words of the witness should, as nearly as possible, be used. People v. Restell, 3 Hill, 289.

k. Commission, reference.- Where a corporation is acting as receiver in the matter of former capital and assets of such corporation, it cannot take out a commission for the purpose of examining witnesses. This is the rule, where the matter in controversy has been submitted to referees under a special statute authorizing such proceeding. Wood v. Howard Insurance Co. of New York, 18 Wend. 646.

1. Preliminary proof, affidavit.The preliminary proof of the necessity of an examination de bene esse, may be proved by affidavit, unless the proof is objected to specifically, on the ground that it is by affidavit, and vira voce testimony is insisted on. Jackson ex dem. Green v. Kent, 7 Cow. 59.

m. Notice. Notice of examination de bene esse should always be given. Wait v. Whitney, 7 Cow. 69.

n. When to be read in evidence."Such deposition, or a certified copy thereof, may be given in evidence by either party, on

b. Motion papers.-It is the duty of the respective attorneys to file the papers used by them on a special motion, and of the prevailing party to see that the rule is entered in conformity with the decision. Savage v. Relyea, 3 How. 276; 1 Code R. 42; Rule 3.

c. Motions, how made.-All motions shall be brought before the court on a notice, or by an order to show cause. Rule 46. But an application to the court for an order to remove a mere technical objection may be made, ex parte, or on such notice as the court shall direct. Matter of Patterson, 4 How. 34.

d. Motions, where made.-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 R. 61. But the parties may stipulate that a motion noticed for a special term be heard before a judge at chambers. Kelly v. Thayer, 34 How. 163. An order entered in pursuance thereof, should be "as of the special term," and not "at chambers as of special term." Ib.

e. General road laws of 1847.-On a motion for a new trial and assessment of damages, under chapter 210, held, that such motion could only be made at special term. Matter of Fort Plain and Cooperstown Plankroad Co. ex parte Ransom, 3 Code R. 148. And that an order granting a new trial, etc. is not appealable to the general term. Ib.

f. Petitions should be "to the supreme court of the State of New York." Matter of Bookhout, 21 Barb. 348. The supreme court may, on petition, remove a trustee of an express trust, who is such by virtue of a will naming him executor; although at the time of the petition he has not completed his duties as executor. Quackenboss v. Southwick, 41 N. Y. (2 Hand), 117. A petition for the removal of a trustee must be made by one immediately interested in the execution of the trust. Livingston's Petition, 2 Abb. N. S. 2; 32 How. 20, sub nom. Matter of Livingston; 34 N. Y. (7 Tiff.), 555.

g. Motions to vacate process or proceedings for irregularity must be made at the first opportunity after the irregularity is discovered, and before the moving party takes any other steps in the cause. Persse and Brooks Paper Works v. Willet, 14 Abb. 119; Bowman v. Tallman, 28 How. 482; S. C. 19 Abb. 84; 2 Rob. 632; 3 id. 633; Lawrence v. Jones, 15 Abb. 110; Low v. Graydon, 14 id. 444. See Lalor v. Fisher, 2 Rob. 669; also Rule 39. Otherwise it is waived. McEvers v. Markler, 1 Johns. Cas. 248; Nichols v. Nichols, 10 Wend. 560; Cowman v. Lovett, 10 Paige, 559; Watt v. Crawford, 11 id. 470; S. C. Aff'd, 2 Denio, 595, sub nom. Ferris v. Crawford; Patterson v. Graves, 11 How. 91; Jones v. United States Slate Co. 16 id. 129; Titus v. Relyea, id. 371; S. C. 8 Abb. 177; Reynolds v. Champlain Transportation Co. 9 How. 7; Reddy v. Wilson, id. 34; Wood v. Anthony, id. 78; Bulkley v.

Bulkley, 6 Abb. 307. Unless some excuse for the delay is shown. Lawrence v. Jones, 15 Abb. 110. Ignorance of the practice is no excuse. Moreland v. Sanford, 1 Denio, 660. A party moving to set aside a judgment for irregularity, must do so within one year after its commission. Cotes v. Smith, 29 How. 327; 31 id. 146; Moulton v. De ma Carty, 6 Rob. 470; Van Benthuysen v. Lyle, 8 How. 312; Whitehead v. Pecare, 9 id. 35. After a delay of three months, an irregular judgment was not set aside. Jones v. United States Slate Co. 16 How. 129. But one may move to set aside for want of jurisdiction, after the lapse of one year. Hallett v. Righters, 13 How. 43; Borsdorff v. Dayton, 17 Abb. 36 (n.); Simonson v. Blake, 12 Abb. 331; S. C. 20 How. 484.

Where defendant moved to set aside the judgment for irregularity, and, pending such motion, gave notice of an appeal, held, not a waiver of the motion. Clumpha v. Whiting, 10 Abb. 448. In all cases of irregularity merely, or to open a default, and where the court, at general term, does not pass upon any portion of the merits, the motion is properly made at special term. Corning v. Powers, 9 How. 54. No question relating to a mere irregularity can be examined on appeal from a judgment. Irregularities in the proceedings can be corrected only on motion made at the special term. McGarry v. Board of Supervisors of New York, 1 Sweeny, 217; S. C. before, 7 Rob. 464.

h. One motion in two actions.Where there are two actions in the same court, between the same parties, it seems that but one set of motion papers, one order, and the costs of one motion, only, will be allowed in both cases, where the object of the motions are the same in both, and made at the same time. Hornfager v. Hornfager, 6 How. 13; S. C. 1 Code R. N. S. 181.

i. Motion papers must be legibly written.- Rule 26. Where motion papers are badly defaced with interlineations and erasures, the motion will be denied for that reason. Henry v. Bow, 20 How. 215. So an injunction may be dissolved for the same reason. Johnson v. Casey, 28 How. 492; S. C. 3 Rob. 710. Also, costs of motion refused. Bane v. Jones, 8 D. & R. 114.

j. One motion must embody all objections.-Where a party objects to any proceedings in a cause, he must embody all his objections in one motion. It is not permissible to make separate motions for each objection. Desmond v. Wolf, 1 Code R. 49; S C. 6 N. Y. Leg. Obs. 389, sub nom. Desmond v. Woolf; Pattison v. Bacon, 12 Abb. 142; 21 How. 478. See Schlemmer v. Myerstein, 19 id. 413; Mills v. Thursby, 11 id. Î15.

k. Notice of motion must be given for the first day of the term, and be accompanied with copies of the papers on which the motion is to be made. Rule 27; President of Ogdensburgh Bank v. Paige, 2 Code R. 67; Walrath v. Killer, id. 129.

1. Specifying grounds of motion.— The certain grounds of a motion should appear plainly, either by the notice of motion or the affidavits. Ellis v. Jones, 6 How. 296. See Rule 39; Lalor v. Fisher, 2 Rob. 669; Moulton v. De ma Carty, 6 Rob. 470.

m. Withdrawing notice of motion. It is a settled rule that a notice of motion served cannot be withdrawn or countermanded without payment of the costs of the motion. Walkenshaw y. Perzel, 32 How. 310; 5 Rob. 948; 7 id. 606, sub nom. Walkinshaw v. Perzel; Bates v. Jaines, 1 Duer, 668. But where a motion embraces two distinct mat

ters, as for leave to add parties defendant, and for an injunction and receiver, the motion as to the first part may be withdrawn, leaving it still pending as to the latter, without payment of costs. Walkenshaw v. Perzel, supra.

n. Death of plaintiff pending a motion.-Where, after a motion had been argued and submitted, but before it was decided, the plaintiff died, held, that an order of revival must be had before the decision of such motion could be entered. Reed v. Butler, 11 Abb. 128.

o. Parties concluded by order.-It is well settled that an order made in a summary application, in a suit, is not conclusive as to a person not a party to the suit, although such person appears by counsel and opposes the order. Acker v. Ledyard, 8 Barb. 515; S. C. 8 N. Y. (4 Seld.), 62. See Clark's Case, 15 Abb. 227.

p. Irregular order binding until set aside. An irregular order, as in a case of insufficient notice, or defective papers, or in the wrong county, is not void, and is binding until vacated. Blackmar v. Van Inwager, 5 How. 367; 1 Code R. N. S. 80, sub nom. Blackman v. Inwagen.

q. Stay of proceedings, continuance of. Where there is a stay of proceedings until a motion is decided, and the decision of such motion contains a continuance of the stay, there is no point of time at which there is not an operating stay; therefore, the opposite party cannot take any step intermediate such decision and the service of the order. Warren v. Wendell, 13 Abb. 187. A stay of proceedings may be granted pending a motion to vacate an order which the moving party has appealed from, and such appellant is not required to withdraw his appeal meanwhile. Belmont v. Erie Railway Co. 6 Abb. N. S. 442.

r. Order on default.—If a motion is noticed for a day out of an appointed term, it must be brought on, on the day specified, and if the moving party does not appear on that day, he is not on a subsequent day entitled to his motion by default. Vernovy v. Tauney, 3 How. 359. See § 404. But if no one appears in opposition, the moving party, on proof of notice, is entitled to the relief asked for. Rule 46. But only to that asked for. Anderson v. Johnson, Ï Sandf. 713; 1 Code R. 95; e. g., where a notice of motion concluded,

"and for such other and further order as the court may deem proper to grant," but did not specify an intention to apply for costs of motion, an order on default, granting the relief asked for, and also costs, under the words "and for such other," etc. was, so far as to the granting of costs, struck out as irregular. Northrop v. Van Dusen, 3 Code R. 140; 5 How. 134. The court of appeals will not grant an order by default which interferes with the control of their calendar. Crain

v. Rowley, 4 How. 79. If the service of the notice, or the proof of service is insufficient, the motion will be denied, although no one appears in opposition. Jackson v. Giles, 3

Caines R. 88.

8. Technical objections. - All objections of a mere technical character, to a motion, must be made before the merits of it are gone into; if not, they will be considered as waived. Roosevelt v. Dean, 3 Caines R. 105; Main v. Pope, 16 How. 271.

t. Affidavits in support of motion. Where a short service of motion papers is made by mail, but actually received, and sub sequently in time for the same special term mentioned in the former notice, a second notice is personally served, that a like motion will be made upon the papers, copies of which have been served by mail, such papers may be read on the second motion. Van Benthuysen v. Stevens, 14 How. 70. 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 Voast, 1 Code R. N. S. 400; S. C. 5 How. 458.

u. Irrelevant and scandalous affi davits.-The court will always see to it, without any motion, that no papers, not otherwise strictly necessary, are allowed to go upon its files or into its records, which tend to discredit, degrade or defame one of its members. Any matter set forth in an affidavit, tending to disparage the judge, or to bring him into disrepute and disfavor, if not to challenge his truthfulness and integrity in his official conduct, will be stricken out and taken from the motion papers. People v. Albany and Susquehanna Railroad Co. 39 How. 49; S. C. 8 Abb. N. S. 122; S. C. Aff'd, sub nom. People v. Church, 2 Lans.

459.

v. Extent of relief.-Where the notice of motion asks for specific relief, or for such other and further order as may be just, the court may grant any relief compatible with the facts of the case. People v. Turner, 1 Cal. R. 152. Where the notice of motion asked to dissolve an injunction "and for