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WITHOUT THE STATE (UNDER THE NEW YORK STATUTE).

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May go to any part of May go to any part of the world.

Witness

the world.

need not be Witness same as in IV.

named. Such as are

Stipulation, etc.

A stipulation will serve to take the place of affidavit and notice of motion, in every case but application for letters rogatory; in that case not, for the court will not call on a foreign court to act, without proof, by affidavit, of a proper occasion.

produced will be ex

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ARTICLE VI.

DEPOSITIONS TAKEN WITHOUT THE STATE.

[For explanations see Table on pp. 1656, 1657.]

FORMS.

I. BY COMMISSION WITH WRITTEN INTERROGATORIES, OR FOR ORAL EXAMINATION.

1430. Affidavit 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 crossexamined orally.

1448. Order absolute thereon. 1449. Stipulation for issue of commission to take testimony without the State.

1450. Order for commission thereon. 1451. Interrogatories on commission; settled by consent. 1452. Proposed interrogatories commission.

on

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1481. Indorsement by clerk or judge 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 commission or an order to take depositions of witnesses produced by either party. 1497. Notice of motion or order to show cause for open commission or order to take deposition.

1498. Order for open commission. 1499. Open commission.

III. ORDER TO TAKE DEPOSITIONS.

1500. Order to take deposition of witness to be produced without the State, before a person agreed on, or a judge, etc. 1501. Notice of taking deposition.

I. BY COMMISSION WITH WRITTEN INTERROGATORIES, OR FOR ORAL EXAMINATION.

FORM No. 1430.

Affidavit to move for commission to take deposition of specified witness without the State (short Form, where contest, except perhaps on the interrogatories, 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 19 ], and this cause has not been tried.

day of

IV. That M. N.,35 whose testimony deponent desires to take by a commission, resides at No.

36

street, in

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in the

State of 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 . 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.

35 Each witness must be named in the affidavit. Lazarus v. Schroder, 49 App. Div. 393, 63 N. Y. Supp. 359. 30 The affidavit need not state the exact place of residence of a non-resi

[Signature.]

dent, if the moving party is unable to do so. Dambmann v. Met. St. Ry. Co., 110 App. Div. 165.

Allegations of non-residence and alsence 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 I, p. 602.

III. [Here state condition of cause, justifying order for commission; see Forms 1432-1436 (below).]

street, in

IV. That M. N.41 resides at No. 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.]

.44

[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: That the said M. N. does not understand the English language, as this deponent is informed and believes giving source of information but he does understand and speak the

language.]

44a

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;

38 For other not, see preceding Form.

39 N. Y. Code Civ. Pro., § 887.

The application should be made as early as practicable. Valentine v. Rose, 45 Misc. 342, 90 N. Y. Supp. 389; Rathbun t. Ingersoll, 34 N. Y. Super. Ct. 211.

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may be taken.
Hun, 330.

that said

Hand v. Burrows, 23

42 See note 36 to preceding Form. 43 Any question of privilege on the part of the witness will not be considered upon this application. See Cullinan v. Dwight, 51 Misc. 221.

44 Authorized by N. Y. Code Civ. Pro., 912. See Roth v. Mautner, 115 App. Div. 148.

44a This fact is sufficiently estab lished by the attorney's affidavit, based upon information from his client then abroad. Roth r. Mautner, supra.

45 This allegation is necessary. Seymour . Strong, 19 Wend. 98.

witness is a material 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].*7

VI. That, as deponent is informed and believes, said M. N. [witness] is not within the State, but is now at

the State of

in the county of

[or in N. Y. City Court: is now at

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in

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. last, dated and post-marked at

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on

reading as follows [etc.].

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and

[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 at

torney 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

of

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day

of 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 . Dey, 7 Wend. 513. See Eaton v. North, 7 Barb. 631.

Under the New York statute (Code Civ. Pro., § 887, etc.), to authorize the court to grant any kind of a commission, it must appear by affidavit that the testimony is material. Ein

stein v. 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-resident; 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.

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