superior city court, or a county court, made in court, and entered in the minutes; specifying that the production of the original, instead of a transcript, is necessary. § 867. [Am'd 1877, 1879.] A person shall not be compell- 24 Hun, 145. ed to produce, upon a trial or hearing, a book of account otherwise than by an order requiring him to produce it, or a subpoena duces tecum. Such subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a subpoena, or order, the witness may obtain upon such a notice as the judge, referee, or other officer prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena, or the order for production, upon such terms as justice requires, touching the inspection of the book, or any portion, thereof, or taking a copy thereof, or extracts therefrom, or otherwise. An order may be made, as prescribed in this section, by a judge of the court, or, in a special proceeding pending out of court before an officer, by the officer, or, in either case, by a referee duly appointed in the cause, and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an action brought in his court, at any time after the commencement thereof. § 868. The production, upon a trial, of a book or paper, belonging to or under the control of a corporation, may be compelled, in like manner as if it was in the hands, or under the control, of a natural person. For that purpose a subpoena duces tecum, or an order, made as prescribed in the last section, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is. § 869. In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in section eight hundred and sixty-six or section eight hundred and sixty-seven of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify respecting the purposes for which it is used. If the personal attendance of a particular officer of the corporation or public officer is requir ed, a subpoena, without a duces tecum clause, must also be served upon him. TITLE III. ARTICLE 1. Depositions, taken and to be used within the State. 2. Depositions, taken without the State, for use within the State. 3. Depositions, taken within the State, for use without the ARTICLE FIRST. DEPOSITIONS, TAKEN AND TO BE USED WITHIN THE STATE. 2870. Deposition of a party, etc. 871. Deposition of a witness not a party. 872. Application; contents of aidavit, 2873. Order for examination. 874. Subpoena. 875. Service of order, etc. and 5 Abb. N. C. 157. 78 N.Y. 434; Id. 599. 48 N. Y. Sup- N. S. 270. ? 1369, Consol. Act. 4 Abb. N. C. 246; Id. 254. 26 Hun, 433. 19 Week. Dig. 375. 877. Deposition of prisoner. 881. When to be read in evi- 882. Proof of witnesses' inabil ity to attend. 3 883. Effect of deposition. 885. Deposition to be used on 886. Where witness may be compelled to attend. § 870. [Am'd 1877, 1878.] The deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action about to be brought in such a court other than a court specified in subdivisions sixteenth, seventeenth, eighteenth or nineteenth of section two of this act may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial as prescribed in this article. 12 Civ. Pro 4; 101 N. Y. 176; 109 Id. 81. § 871. [Am'd 1877.] The deposition of a person not a party, whose testimony is material and necessary to a party to an action, pending in a court of record, other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act; or to a person who expects to be a party to an action, about to be brought in such a court, by a person other than the person to be examined, may also be taken, as prescribed in this article. § 872. [Am'd 1877, 1879, 1880, 1893.] The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pend ing; or, if it is pending in the supreme court, to a county judge; or, if an action is not. pending, but is expected to be 37 Hun, 232; brought, to a judge of the supreme court, or of a superior city court, or to a county judge; an affidavit setting forth as follows: Id. 531. 11 Abb. N. C. 419. 32 Hun, 12. 1. The names and residences of all the parties to the action, and whether or not they have appeared, and, if either of them has appeared by attorney, the name, and the residence or office address of the attorney; or, if no action is pending, the names and residences of the expected parties thereto. 2. If an action is pending, the nature of the action, and the substance of the judgment demanded, and, if the application is made by the defendant before answer, or by either party after answer, the nature of the defense. 3. If no action is pending, the nature of the controversy which is expected to be the subject thereof. 4. The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action, and if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries; and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business. 5. If an action is pending, that the person to be examined is about to depart from the State; or that he is so sick or Civ. Pro. infirm, as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special cirY. Supp. cumstances exist, which render it proper that he should be examined as prescribed in this article. But this subdivision does not apply to a case where the person to be examined is a party to the action, 6. If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, or sojourning within the State; or that he has an office within the State, where he regularly transacts business in person, specifying the place, and, if it is in a city, the street and street number, or other designation of the particular locality; or, if two or more persons are expected to be adverse parties, that each is of full age, and so resident or sojourning, or has such an office; also the circumstances which render it necessary for the protection of the applicant's rights, that the witness' testimony should be perpetuated. 7. Any other fact necessary to show that the case comes within one of the last two sections. And if the party sought to be examined is a corporation, the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers. 125. 3 Abb. N. C. 5 N.Y. Supp. 323. 435. $ 873. [Am'd 1877, 1879, 1884, 1893.] The judge to whom such an affidavit is presented must grant an order for the examination, if an action is pending; if no action is pending, he must grant it, if there is reasonable ground to believe that an action will be brought, as stated in the affidavit, and that 67 How. Pr. the application is made in good faith to preserve the expected 109 N. Y. 1. testimony; otherwise he must dismiss the application. Where the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined. In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper. In any action brought to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made. The order must require the party or person to be examined to appear before the judge, or before a referee named in the order, for the purpose of taking the examina tion, at a time and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within the State, not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact is recited in the order. 53 Hun, 347. § 874. [Am'd 1877, 1882.] Witnesses' fees, at the rate prescribed by law in an action in the supreme court, must be paid or tendered when the order is served upon the party or other person required to attend. If the party or person so served fails to obey the order, his attendance may be compelled and he may be punished, in like manner, and the proceedings thereon are the same, as if he failed to obey a subpœna issued from the court in which the action is pending, or, if no action is pending from the court of which the judge is a member. $ 875. [Am'd 1879.] A copy of the order, and of the af ̃ìdavit upon which it was granted, must be served upon the attorney for each party to the action, in like manner as a paper in the action; or, if a party has not appeared in the action, they must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties. § 876. [Am'd 1879.] Upon proof, by affidavit, that service of a copy of the order and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness, at the time and place specified in the order. He may from time to time, adjourn the examination to another day, and to another place, within the same county. Sections eight hundred and fifty-six, eight hundred and fifty-seven, and eight hundred and âftyeight of this act apply to the examination of a party or a person expected to be an adverse party, taken as prescribed in this article. § 877. [Am'd 1877, 1882.] Where the party or other person to be examined is confined in a prison or jail within the State, under a sentence for a felony, that fact must be stated in the affidavit, and his deposition may be taken as prescribed in the foregoing sections, as if he was not so confined, except that in such a case, the granting or refusing the order, and if granted, the appointment of a referee to take the testimony, is always in the discretion of the judge. The order must require the production of the prisoner by the person in charge of the prison or jail, at the prison or jail; but it may prescribe such regulations and restrictions with respect thereto as the judge deems proper. § 878. [Repealed 1877.] § 879. [Am'd 1882] The parties to an action may stipulate in writing that the deposition of a competent witness, to be used therein, may be taken before a judge or referee, at a time and place specified in the stipulation, either orally or upon interrogatories to be agreed upon in like manner. The witness may be subpoenaed to attend the examination as upon a trial, and the judge or referee may take his dep sition, as if an order had been made by the court directing it to be so taken. But this section does not apply to a case specified in section eight hundred and seventy-seven of this act. § 880. [Am❜d 1879.] The examination of a party, or an 33 Hun, 1. expected party, is subject to the same rules as if he was examined upon the trial. The judge or referee, upon every other examination, taken as prescribed in this article, must insert therein every answer or declaration of the person examined, which either party requires to be inserted. The deposition, when completed, must be carefully read to and subscribed by the person examined; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk; or, if no action is pending, in the office of the clerk of the county in which it was taken; together with the stipulation or order under which it was taken; the affidavit upon which the order was granted; and proof of the service of a copy of the order and of the affidavit. If, upon an examination before a referee, the person examined refuses to answer any question, the referee must report the fact to the court or judge, who must determine whether the question is relevant, and whether the witness is bound to answer it. |