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within the section,88 and so, also, is an application for a provisional remedy, though made ex parte ;89 and by parity of reasoning, application for an order for substituted service or for examination of a party in a pending or an anticipated action would be equally so. The statute does not require that an action be pending. A motion for a new trial on the ground of newly-discovered evidence is within the section.90
63. — only party can compel.]— One who is not a party on the record, or recognized by the court as one entitled to move, cannot compel the making of an affidavit under this provision. 91
64. — party, not compellable.]—A party to the action cannot be compelled to make an affidavit under this provision.92
65. — capacity as witness.]—The statutory removal of the incapacity of interested witnesses93 and of felons,94 in the form in which the statute for that purpose in New York is expressed, removes the incapacity for purposes of such an affidavit as well as for the purposes of examination as a witness on the trial of an issue.
Whether the disqualification of an interested witness to testify against the estate of a deceased person, or a person non compos, extends to the making of an affidavit, may be questioned.95
The question of the privilege of the witness will be noticed later.
the privilege of it, may be question compos,
66. — preliminary request.]— Before such an order can be made the person whose affidavit or deposition is desired must be applied to. Unless he evades the request, 96 or meets it with a general refusal,97 the request should be accompanied either by presentation of a draft of affidavit on the subject on which his oath is required,98 or at least by a statement of the facts which the applicant believes are within his knowledge, and to which he is desired to make oath.99
88 Eberle v. Krebs, 50 App. Div. 450, 64 N. Y. Supp. 246. 89 Allen v. Meyer, 73 N. Y. 1 (application for warrant of attachment). 90 O'Connor u. McLaughlin, 80 App. Div. 305, 80 N. Y. Supp. 741.
91 Atty. Gen. v. Cont. Life Ins. Co., 4 Civ. Pro. Rep. (Browne), 214, 66 How. Pr. 51.
92 Code Civ. Pro., $ 885 ; King v. Leighton, 58 N. Y. 383; Burnett v. Snyder, 41 Super. Ct. (N. Y.) 342; People v. Patton, 20 Abb. N. C. 172.
93 N. Y. Code Civ. Pro., § 828.
96 Thus an application several times upon successive days to a person to make an affidavit, and his declining until he could consult counsel, is an evasion amounting to a refusal. Rogers v. Durant, 2 Sup. Ct. (T. & C.) 676; appeal dismissed in 56 N. Y. 669.
The witness must either make the affidavit requested, or state wherein and how it is inaccurate, so as to enable a correction to be made, if the matters are within his knowledge.
His refusal to swear to the proposed affidavit on the pretext that it contains errors which he will not point out and correct, will not exempt him from examination."
Where a proposed affidavit is not presented, a request to answer oral questions and strear to the answers when taken down and written out by a stenographer, is not enough. It is a sufficient reply to such a request, to offer to answer questions submitted in writing and swear to a statement embodying such answers.?
67. —affidarits to support the application.]— The moving affidarits must specify the nature of the action, and must state that the applicant intends to make a motion, and should indicate its nature and object; or, that notice of a motion has been given to the applicant, or an order to show cause served (indicating the nature and object of the motion), and that the applicant intends to oppose such motion.
It must also state the facts on which the witness has been requesied to make atfidavit, and that he has been requested, on the applicant's behalf, to make a hlarit to the facts specified, and. further, that the applicant verils believes that such facts are within liis knowledge
It must show that the affidavit or deposition is, necessary; it is not enough merely to allege that it is so,8 much less that deponent believes it to be so.' It is not enough that it is desired. Unless it appears that the intended motion necessitates such deposition, the order should be refused. 10
It is not necessary to prove absolutely that the facts desired are within the knowledge of the witness, but it is enough for the applicant to swear that he verily believes that they are;11 and by parity of reasoning to the best considered authorities on similar statutory language in respect to provisional remedies, if the affidavit is made by some one other than the applicant (and excuse shown), the deponent's oath that he verily believes that they are, or facts showing that they presumptively are, within the knowledge of the person to be examined, will be enough on this
68. -- as to place for examination.]— The affidavit should also state whether the person to be examined is a resident of the State or not; and if a resident, in what county he resides or has an office for the regular transaction of business in person; and his attendance should be required by the order or subpæna at a place in such county. If he is not a resident it should state special reasons why the court or judge should allow service of subpæna to be made irrespective of the place of examination; otherwise he can only be served in the county where the order or subpæna directs him to appear for examination.13
But these statements as to residence are not jurisdictional requisites of the affidavit.
69. — notice essential.]— The amendment of 1901 requires that the application for the order be made upon notice to the opposite party if he has appeared. 14
8 Matter of Bannister, 1 Monthly L. Bul., 9.
3 Cockey v. Hurd, 14 Abb. Pr. (N. S.) 183, 36 N. Y. Super. Ct. 42, 45 How. Pr., 70.
10 Moses v. Banker, 30 N. Y. Super. Ct. 131, 34 How. Pr. 212 (where real intent appeared to be to ascertain evidence to be met at trial). To same effect, Wallace v. Baring, 2 App. Div. 501, 37 N. Y. Supp. 1078; CalvetRogniat v. Merc. Trust Co., 46 Misc. 20, 93 N. Y. Supp. 241.
11 N. Y. Code Civ. Pro., § 885. 12 See p. 11 of this volume, and Chapter VIII on Provisional Remedies. 13 N. Y. Code Civ. Pro., § 886.
14 N. Y. Code Civ. Pro., § 885. It was held prior to the late amendment requiring notice, that a party had no standing to appear on the hearing, or move to vacate the order, if obtained ex parte. McCue v. Tribune Assn., 1 Hun, 469. But the right to move to vacate for irregularity, if prejudice was shown, was conceded in Ramsey V. Gould, 57 Barb. 398.
70. — order.]— The order will appoint a referee to take the deposition. It may designate the time and place where the witness is to appear, or may direct that he appear at a time and place to be fixed by the referee in the subpæna.15 In either case the place must be within the county where the witness has his residence or office for the regular transaction of business in person; or, if not a resident, power to compel appearance fails if service of the subpæna is not made within the county fixed for appearance, unless for reasons stated in the affidavit the order contains a clause allowing service in another county than that of examination to be sufficient. 16
The order should also designate the subject and scope of the examination.
Unless it contains special directions as to the delivery of the deposition when taken, it will be the referee's duty to deliver it to the attorney of the party who procures it to be taken."7
71. — service; subpæna.]— The person to be examined should be served with a subpænals and fees paid as in the case of taking testimony at the trial; and a copy of the order should be served with the subpæna.19
If he voluntarily appears and submits to be sworn, he thereby waives objection to the regularity of the order and service.20
72. -- getting rid of the order.]— If a motion to vacate is to be made, it may be made by the person sought to be examined.21
It was held prior to the amendment of 1901, that a party to the action was not entitled as such to move to vacate the order, 22 though the court had power to vacate on his motion ;23 but that the remedy of a party was to wait till the affidavit taken under it was offered against him and then object to its use.24 The section, as amended, requires notice of the application, and on the hearing the adverse party will be heard in opposition to the granting of the order. The principle involved seems also to give him standing to vacate for irregularity.
15 Common practice.
18 N. Y. Code Civ. Pro., 8 686. The language of the statute makes this essential in case of a non-resident.
19 The language of the statute does not require this, but it seems to follow from the recognized right to move to vacate.
20 McCue 1. Tribune Assn., 1 Hun. 469; S. C., 3 Sup. Ct. (T. & C.) 451 (where it was held that the witness by such voluntary appearanc: "might waive any irregularity or want of power in the proceedings to pro. cure his attendance); s. P., Reynolds 1. Parkes, 2 Dem. 399.
21 Spratt v. Huntington, 2 Hun, 341.
The person required to submit to examination may move to vacate,25 and unless there is a clear defect of jurisdiction, he should take this course rather than assume to disregard it.
If the person required to be examined is also a party to the action this is no objection to his moving to vacate, but is in itself a sufficient ground.25
The motion to vacate must be made before submitting to be sworn or examined.26
In any case a motion to vacate should be on notice, as the order is only granted on notice.
Tendering affidavit requested, after refusal, and order granted, does not entitle the person, as matter of right, to have the order vacated, 27 but leaves it in the discretion of the court to do so, if the statement is full and frank.
73. — counsel.]— The person required to appear before a referee to make an affidavit to be used upon a motion is not entitled to the assistance of counsel.28
22 Ramsey v. Gould, 39 How. Pr. 62, 57 Barb. 398; and as Ramsey v. Erie Ry, Co., 8 Abb. Pr. (N. S.) 174; Brooks v. Schultz, 3 Abb. Pr. (N. S.) 124.
23 See paragraph 64.
It is said in Moses v. Banker, 7 Robt. 131, 34 How. Pr. 212, that motions to vacate such orders are not to be encouraged, and should be granted only when it clearly appears that the order is unauthorized or that a legitimate use of the process of the court is not intended. In Calvet-Rogniat v. Merc. Trust Co., 46 Misc. 20, 93 N. Y. Supp. 241, the court vacated the order because it appeared from the affidavits that the person to be examined had no knowledge of the facts sought.
26 Erie Ry. Co. v. Champlain, 35 How. Pr. 74.
28 Where, after being sworn, he refuses to testify upon the advice of counsel purporting to act for him at the reference, and leaves with his counsel against the command of the referee to remain, he is guilty of contempt, and so is the attorney who gives such advice. because his “ conduct in advising the witness to leave the presence of the referee and to refuse to give his testi