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FORM No. 1498.

Open commission.
[Adapt from Form 1469.]

III.- ORDER TO TAKE DEPOSITIONS.
(Affidavit as in Form 1497.]

FORM No. 1500.
Order to take deposition of witness to be produced without the State, before

a person agreed on, or a judge, etc.50 [As in Form No. 1498 to the *, continuing:]

ORDERED, that the depositions of M. N. and O. P. may be taken in the [State] of , on behalf of the

[or, that the depositions of such witnesses as the may produce for the purpose may be taken in the — State — of , on his behalf in this action — or, that the depositions of such witnesses as either party may produce for the purpose may be taken on his behalf in this action in the State of — etc.], [may specify, if agreed, the name of the officer or other person thus: before Hon. J. K., of the city of ] [or fix it by notice; see next Form], between the day of and the day of

, 19, under section 899 of the Code of Civil Procedure. Such depositions must be returned [here specify particular mode].

[Enter, and take certified copy and annex copy of N. Y. Code Civ. Pro., SS 900–902.]

FORM No. 1501.

Notice of taking deposition.51 [Title of court and cause.]

Please take notice, that the deposition of M. N.,62 who resides at No.

,

street, in the city of , and county , in the State of [if several, gire name and residence of each], will be taken in this cause on behalf of the above-named [plaintiff), before [naming the person agreed on, or if no person has been agreed on, or the depositions are taken in pursuance of an order for the taking of depositions generally, name one of the officers enumerated in N. Y. Code Civ. Pro.,

50 N. Y. Code Civ. Pro., & 898.

For affidavit and notice of motion, the preceding Forms may be adapted.

51 N. Y, Code Civ. Pro., $ 899.
62 Where the deposition of one per-

son is taken under a notice designat-
ing only another, it will be excluded.
Patterson v. Wabash, etc., Ry. Co., 54
Mich. 91; 19 N. W. Rep. 761.

his offices at No. ,'on then

to such

§ 899], of , at his office53 at No., street, in the city of

, and State of
, and State of

, on the day of , 19 , at o'clock, M., and pursuant to such adjournment354 as may be by him appointed. [Date.]

[Signature and office address of55], Address] To

Attorney for Attorneybo for [Under N. Y. Code Civ. Pro., SS 896, 899, serve five judicial days before the day set, and one judicial day in addition for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party and the place where the deposition is to be taken.57]

[Deposition, etc., adapt from Forms 1747 to 1481.]

53 A mere verbal inaccuracy in designating the name of the place of taking the deposition will not vitiate the service, as by saying Connellsburg instead of Mc Connellsburg. Gibson t. Gibson, 20 Pa. St. 90.

55 As to necessity of signature, see Vol. I, p. 194, paragraph 4, and notes,

56 As to necessity of direction, see Ib.

57 Code Civ, Pro., $ 899.

As to manner of service, see Vol. I, p. 379, etc.

54 A party duly notified of the tak. ing of a deposition, who does not attend, cannot object at the trial to its admission on the ground that the taking thereof was adjourned for the proper cause without notice to him from the place named in the notice to the witness's house. Lowd v. Bowers (N. H., 1886), 3 Atlan. Rep. 431.

The notice need not be served by the party at whose instance the deposition is taken, or his attorney. Colton v. Rupert (Mich., 1886), 27 N. W. Rep. 520, holding that proof of service need not show that the server was authorized.

ARTICLE VII.

EXAMINATION WITHIN THE STATE, BY CONSENT.
[For examination by consent out of the State, see pp. 1669, 1670.]

FORMS. 1502. Stipulation to take testimony 1504. Certificate to deposition. (within the State).

1505. Stipulation to take deposition 1503. Deposition taken within the

of a witness within the State State by consent.

(short Form). * FORM No. 1502.

Stipulation to take testimony (within the State).58 [Title of court and action.]

It is hereby stipulated by the parties hereto that the deposition of M. N., to be used herein on behalf of the [plaintiff – or, of A. B., the plaintiff herein, to be used on his own behalf], may be taken, * pursuant to § 879 of the New York Code of Civil Procedure, before Hon. J. K., one of the justices of this court, at chambers, at the city hall [or, the county court house — or, before R. F., Esq., [notary public] of

, who is hereby appointed referee for the purpose,59 at his office, No. street), in the city of , on the day of , 19 , at o'clock in the noon on said day, upon the annexed interrogatories [or, that plaintiff's attorney shall examine the said M. N., orally, and the attorneys for the defendant shall cross-examine him, orally, and that such examination and crossexamination be reduced to writing and be signed by said M. N., and sworn to before said R. F.],+ and that such deposition may be read in evidence on the trial of this action, with the like effect as if the evidence was given before the court, and subject to like objections [if questions are to be oral, may add: except as to the form of questions, objections to which are to be made and noted at the time of the examination]. [Date.] [Signature and office address of ],

Attorney for plaintiff. [Signature and office address of],

Attorney for defendant.. [Subpoena the witness or party as in other cases, if necessary to secure attendance.

58 Sanctioned by common practice, and by N. Y. Code Civ. Pro., § 879, except where the witness is in jail under sentence for felony.

For taking deposition by consent without the State, see Form 1449.

59 Such referee has implied power to administer an oath, N. Y. Code Civ. Pro., $ 879. But a notary public is usually selected.

FORM No. 1503. Deposition taken within the State by consent.60 [Title of court and action.]

Deposition of M. N., a witness for the plaintiff [or, defendant] in this action, taken before [state whom, at [etc.,] by consent under the annexed stipulation [if written interrogatories were agreed on, say:], under the annexed interrogatories (or if examination is oral, take down questions and answers; or the answers in narrative form]. The said M. N., being duly sworn, makes answer:

TO THE FIRST INTERROGATORY [and so on).
TO THE FIRST CROSS-INTERROGATORY [and so on).

[Witness's signature.] Subscribed and sworn to

before me, the day
of , 19 .

[Signature and title of judge, or referee.] [File, together with the certificate and stipulation,61 within ten days after taking.]

FORM No. 1504.

Certificate to deposition. [Can be readily adapted from Form 1475, supra.]

FORM No. 1505. Stipulation to take deposition of a witness within the State (short Form in

absence of contest 62). [As in Form 1502, to the *, continuing:] before a notary public [or, commissioner of deeds — or, justice of the peace] on the day of , 19, [or, on days' notice,] at (naming place, as thus: chambers of the Supreme Court,- and continuing as in Form 1502, from the to the end].

60 The deposition of a party taken by consent is admissible in evidence notwithstanding the death of the adterse party after it was taken, and the continuance of the action by his personal representatives, and even though it relates to personal transactions had with the deceased. Macdonald v. Woodbury, 30 Hun, 35; and see note in 18 Abb. N. C. 407.

In Ludeman v. Third Ave. R. Co., 72 App. Div. 26, 76 N. Y. Supp. 128, a stipulation was held enforcible which provided for the taking of the plaintiff's deposition in an action for personal injuries, and provided fur

ther that if plaintiff died from the injury, the deposition would be admissible in any subsequent action by the personal representative.

61 N. I. Code Civ. Pro., & 880.

62 This is common practice, though not expressly sanctioned by statute. Stipulation in this Form was held enforcible in Lundeman v. Third Ave. R. Co., 72 App. Div. 26, 76 N. Y. Supp. 128.

As to relief from the stipulation in case of the refusal of a witness to appear, see Warner v. Mosses (Ct. of ipp., Chan. Div.), 29 Wkly. Rep. 201. As to taking thus the testimony of a party in his own behalf, see Briggs 1". Taylor, 4 Civ. Pro. Rep. 328. The statute applies in surrogates' courts (V. Y. Code Civ. Pro., & 2538), except in the case of sick or infirm witnesses whose testimony the surrogate is required to take by attending in person, or by order for examination before the surrogate of his county. 2539, etc.

ARTICLE VIII. EXAMINATION OF WITNESSES CONDITIONALLY (DE BENE ESSE).

FORMS. 1506. Affidavit to obtain order to ex. 1507. Order thereon.

amine a witness conditionally 1508. Deposition taken conditionally (de bene esse).

(de bene esse).

FORM No. 1506. Affidavit to obtain order to examine a witness 63 conditionally (de bene esse).64 [As in Form 1398, substituting for paragraph VI the following:]

VI. That M. N., a proposed witness herein, resides in the city of , at No. street [where he now is — or, and that he is now sojourning at

- or, and that he regularly transacts business at No. street, in the city of 65 and, if a resident of the State but not of the county where the examination is sought, add: where he has an office for the regular transaction of business in persone], and that Tas deponent is informed and believes67 by a statement made by V. N.] * said M. N. [here state ground of application; 6S as, in case of intended departure, thus:] is a civil engineer and contractor, and is about to leave the city of New York to attend an important matter in [Manchester, England], and will be absent for more than a year, and will not be able to attend the trial of this action.

63 N. Y. Code Civ. Pro., $ 872.

It has been held at Special Term that proof that the party has but one witness to an essential fact, will war rant the granting of the order, although neither sickness, infirmity, nor intended absence be shown, Martin t. Hicks, 1 Abb. N. C. 341; Caldwell v. Larabee, N. Y. Law Jour., March 8, 1904, p. 1945.

If ordered at the trial, the require. ments of the Code must be complied with. Meres t. Emmons, 103 App. Div. 381, 92 N. Y. Supp. 1099,

64 May be taken before issue joined. Jacobs r. Mex. Sugar Ref. Co., 45 Misc. 56, 90 N. Y. Supp. 824.

65 See N. Y. Code Civ. Pro., & 872, subd. 4.

66 Id., § 872, subd. 5.

67 The allegation as to intended departure may be on information and belief, if it appear from the affidavit that such belief arises from investigations made by the deponent or from statements made to him by the adverse party. Burr v. Sears, 18 Abb. N. C. 447.

68 It is necessary to show either sickness, or intended absence of witness, or some kindred reason bearing upon his probable attendance. Davis Mach. Co. v. Robinson, 42 Misc. 52, 85 N. Y. Supp. 574.

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