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WITHOUT THE STATE (UNDER THE NEW YORK STATUTE).
Commissioner must be Commissioner need not named.
be named, but may be A stipulation will not agreed on, or fixed by dispense with an order notice by examining for a commission, or a party designating one judicial allowance of a of a class of magis commission, except, trates mentioned in the perhaps, where the statute.
commission itself is agreed on and actually
issued in terms by the Time and place of exam. Time and place of exam stipulation. An execuination fixed by notice ination fixed by notice tory stipulation, folby examining party, by examining party. lowed by a commission unless directed by the
not otherwise authenorder,
ticated, is not enough. Period for terminating Period for terminating examination may be examination must be limited by commission limited in the order. or order.
DEPOSITIONS TAKEN WITHOUT THE STATE.
[For explanations see Table on pp. 1656, 1657.]
1. BY COMMISSION WITH WRITTEN IN
TERROGATORIES, OR FOR ORAL EX
AMINATION. 1430. Afidavit to move for commis.
sion to take deposition of specified witness without the
State (short Form). 1431. The same (full Form). 1432-1436. Statements of condition of
cause suitable to be inserted
in the foregoing Form. 1437. Notice of motion or order to
show cause thereon. 1438. Order for a commission. 1439-1446. Statements of condition or
terms suitable to be inserted
in foregoing Forms. 1447. Order to show cause why the
witness should not be cross
examined orally. 1448. Order absolute thereon. 1449. Stipulation for issue of commis.
sion to take testimony with
out the State. 1450. Order for commission thereon. 1451. Interrogatories on commission;
settled by consent. 1452. Proposed interrogatories on
commission. 1453–1462. Interrogatories suitable to
be inserted in foregoing Form. 1463. Proposed cross-interrogatories. 1464-1466. Cross-interrogatories suit
able to be inserted in fore.
going Forms. 1467. Notice of settlement of interrog.
atories or cross-interroga
tories. 1468. Allowance of interrogatories. 1469. Commission to take testimony
on interrogatories or oral ex
amination. 1470. Direction to return commission. 1471. Notice of examination by oral
questions. 1472. Oath of witness.
1473. Oath of interpreter. 1474. Deposition taken upon commis
sion by interrogatories or
oral examination. 1475. Certificate of execution of com
mission (short Form). 1476. The same (fuller Form). 1477. Indorsement by commissioner
on exhibit. 1478. Certificate of execution to be in
dorsed where there is not room to indorse the return in
full. 1479. Certificate of mailing; indorsed
on the envelope. 1480. Affidavit of agent bringing depo
sition. 1481. Indorsement by clerk or jullge
of receipt of deposition. 1482. Notice of motion to re-execute
commission. 1483. Notice of motion to suppress
deposition. 1484–1494. Statements suitable to be
inserted in foregoing Form. 1495. Order suppressing deposition. II. OPEN COMMISSION (WITNESSES NOT
NAMED). 1496. Affidavit to move for open com.
mission or an order to take depositions of witnesses pro
duced by either party. 1497. Notice of motion or order to
show cause for open commission or order to take deposi.
tion. 1498, Order for open commission. 1499. Open commission.
III. ORDER TO TAKE DEPOSITIONS. 1500. Order to take deposition of wit.
ness to be produced without the State, before a person
agreed on, or a judge, etc. 1501. Notice of taking deposition.
1. BY COMMISSION WITH WRITTEN INTERROGATORIES, OR FOR
FORM No. 1430. Affidavit to move for commission to take deposition of specified witness with
out the State (short Form, where contest, except perhaps on the inter
rogatories, will not be made).33 [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
I. That he is the (plaintiff] in this action (or otherwise state relation to the cause].34
II. [If in Supreme Court:] That the place of trial named in the summons and complaint herein, is the county of III. That issue of fact was joined herein [on the day of
, 19 ], and this cause has not been tried. IV. That M. N.,35 whose testimony deponent desires to take by a commission, resides at No.
street, in , in the State of ,36 and is not within this State, but is [state whereabouts] ;37 that his testimony is material for the [plaintiff] upon the question (proceed as in paragraph IV. of next Form.]
V. [As V, in next Form.]
[If stay or order to show cause is asked, allege as in VIII, IX or X in next Form.] [Jurat.]
33 For other notes, see next Form,
34 If the attorney makes the affidavit, he must excuse non-production of his client's affidavit. To state that his client is a non-resident is insufficient. Fox 1. Peacock, 97 App. Div. 500, 90 N. Y. Supp. 137. If the facts are properly presented in the attorney's affidavit, as well as the sources of his information, it is error to deny the application. Laidlaw v. Stinson, 67 App. Div. 545, 74 N. Y. Supp. 684.
33 Each witness must be named in the affidavit. Lazarus v. Schroder, 49 App. Div. 393, 63 N. Y. Supp. 359.
36 The affidavit need not state the exact place of residence of a non-resi
dent, if the moving party is unable to do so. Dambmann r. Met. St. Ry. Co., 110 App. Div. 165.
Allegations of non-residence and alısence from the State, if made upon information and belief, must disclose the sources, and excuse production of affidavit of person having knowledge. Fox v. Peacock, supra.
37 It is not enough to merely allege that the proposed witness is a nonresident; it must be shown that he is not within the State. Brown v. Russell, 58 App. Div. 218, 68 N. Y. Supp. 755; Matter of Adams, 31 App. Div. 298, 52 N. Y. Supp. 617.
FORM No. 1431. Affidavit 38 to move for commission to take depositions of specified witness
without the State 39 (full Form). [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
I. That he is the plaintiff]40 in this action (or otherwise state relation to the cause].
II. That this action is brought to recover [state gist of cause of action; see Form 927, p. 1273 of this volume, and Volume 1, p. 602.
III. [Here state condition of cause, justifying order for commission; see Forms 1432-1436 (below).]
IV. That M. X.41 resides at No. street, in in the State [or, Republic) of , 42 and is not within this State; that he is a material witness for deponent [or, for the
] upon such inquest (or, reference - or, new trial] upon the question of [state what].43 [State facts proving that witness will be able to give material testimony upon one or more of the issues.]
[If the commission is to issue from one of the principal courts. to a foreign country, and the witness does not understand the English language, may say:44 That the said M. N. does not understand the English language, as this deponent is informed and believes — giving source of information 448 — but he does understand and speak the language.]
V. That this deponent has fully and fairly stated to A. T., his counsel herein, who resides at , in the city of the facts which he expects to prove by said witness ;45 that said
38 For other not, see preceding may be taken. Hand v. Burrows, 23 Form.
Hun, 330. 39 N. Y. Code Civ. Pro., § 887.
42 See note 36 to preceding Form. The application should be made as 43 Any question of privilege on the early as practicable. Valentine v. part of the witness will not be conRose, 45 Misc. 342, 90 N. Y. Supp. sidered upon this application. See 389; Rathbun t. Ingersoll, 34 N. Y. Cullinan v. Dwight, 51 Misc. 221. Super. Ct. 211.
44 Authorized by N. Y. Code Civ. 40 See note 34 to preceding Form. Pro., § 912. See Roth v. Mautner, 41 See note 35 to preceding Form. 115 App. Div. 148.
The deposition of a party may be 44a This fact is sufficiently estabtaken. N. Y. Code Civ. Pro., § 887. lished by the attorney's affidavit,
But where it appeared that plain based upon information from his clitiff was a fugitive from justice, his ent then abroad. Roth ľ. Mautner, application to take his testimony on supra. commission was refused. MeMonagle 45 This allegation is necessary. Sey. 0. Conkey, 14 Hun, 326.
mour v. Strong, 19 Wend. 98. The deposition of an insane witness
witness is a materialo and necessary witness for the deponent for his [defense] on the trial of said action, as he is advised by his said counsel after such statement, and verily believes (and that, without his testimony, the deponent cannot safely proceed to the trial of the cause, as he is also advised by his said counsel, after such statement, and verily believes].47
VI. That, as deponent is informed and believes, said M. N. [witness] is not within the State 48 but is now at
, in the State of [or in N. Y. City Court: is now at in the county of , in this State] ; and that the source of deponent's information and the grounds of this belief are [stating them, for instance:] a letter which he received from said M. N. on last, dated and post-marked at
, and reading as follows [etc.].
[Where application is before issue, add :49] and there is reason to apprehend that before issue is joined, and an application for a commission can thereafter be made, said M. N. will die [or, become unable to give his testimony — or, will remove, so that his testimony cannot be taken — adding particulars substantiating this allegation, as in Form No. 1506].
VII. That [the adverse party] resides at , and his attorney in this action is X. Y., Esq., whose office address is
[Oath to diligence by either party, asking stay:] VIII. That the time appointed for holding the next Trial Term in the county , in which this action is triable, is the
, 19 ; and that due diligence has been used by deponent and his said counsel and attorney in preparing this motion for the earliest practicable day after issue joined as aforesaid, and that this motion could not be earlier made by reason of [stating excuse for delay, if any.]50
46 The materiality of the witness (see Eaton v. North, 7 Barb. 631), and the advice of counsel as to the same (Lansing v. Mickles, 1 How. Pr. 248), must be sworn to, unless the affidavit is made by the counsel for the applicant, in which case the averment of advice may be omitted. Beall r. Dey, 7 Wend. 513. See Eaton v. North, 7 Barb. 631.
Under the New York statute (Code Civ. Pro., 8887, etc.), to authorize the court to grant any kind of a commission, it must appear by affidavit that the testimony is material. Ein
stein 1. Gen. Elec. Co., 9 App. Div. 570, 41 N. Y. Supp. 808.
47 This allegation is not essential. Brackett v. Dudley, 1 Cow. 209.
48 It is not necessary to allege that the proposed witness is a non-resi. dent; absence from the State is sufficient ground for the order. N. Y. Code Civ. Pro.. $ 887. But a mere allegation of non-residence is not enough. Note 37, supra.
49 Id., & 888, subd. 4.
50 The application will be denied for unexcused laches, suggestive of bad faith. See Valentine v. Rose, 45 Misc. 342, 90 N. Y. Supp. 389.