at

[Or, departure of non-resident, thus:] That said M. N. resides in the State of and is now at

in the county of

within

said

in this State, on a visit, and intends,

days from the day of

19 to leave where he now is, for the purpose of returning to

his aforesaid residence; and unless he is examined conditionally before his departure, deponent will lose the benefit of his testimony.

[Or, departure of transient person, thus:]

is a mariner, employed upon the ship

of

and he is about to leave said

That said M. N.

now at the port

to go on board said ship, which is within a week or two to sail for some foreign port not known to deponent, upon which voyage said M. N. is going in her; and unless he is examined conditionally before then, deponent will lose the benefit of his testimony.

at

[Or, return of foreign witness, thus:] That said M. N. resides and has been attending in this city during the past term to testify as a witness in this cause on behalf of the [applicont]; but that said cause did not come to trial, and said M. N. intends leaving this place, upon his return, on or before

day next; and that unless he is examined conditionally before then, deponent will lose the benefit of his testimony.

[Or, illness, thus:] That said M. N. lies now,69 at dangerously ill of

, as deponent is informed and believes, and he is not expected to recover [or, cannot be expected to be able to attend the trial of this cause on account thereof]70 as appears by the annexed affidavit of P. Q., his physician."1 [Or, old age, thus:] That said M. N. is of the age of

years, and upwards, and is feeble and infirm, and has not been able, for months last past, to leave his house by reason thereof; and he is not now able, nor is there reason to suppose that he will be able, to attend the trial of this cause.

That deponent intends to use the testimony of said M. N. as part of his proof at the trial of this action.

[If any of the foregoing allegations is on information and belief, state sources and grounds, and excuse non-production of the best evidence.72]

69 It is not sufficient to show illness of witness of a time several months previous. Johnson v. New Home Sewing Mach. Co., 62 App. Div. 157, 70 N. Y. Supp. 875.

70 Nervous disorder held not to justify examination. Montgomery v. Knickerbocker, 43 N. Y. Supp. 787.

71 A physician's affidavit is essential to establish a person's state of health. Crawford t. New York City Ry. Co., 108 App. Div. 190, 95 N. Y. Supp. 769.

72 Vincent v. Kilmer, 107 App. Div. 499, 95 N. Y. Supp. 343.

VII. That the testimony of said M. N. is material and necessary to deponent in the [prosecution] of this action, upon the issue of state what]; that said M. N. will be able to testify upon such issue because [state facts showing his knowledge—or, as deponent has been informed by said M. N., and verily believes.72a [Conclude as in Form No. 1014, p. 1358, beginning with paragraph VIII.]

FORM No. 1507.

Order for examination of a witness conditionally (de bene esse).73

[Title of court and cause.]

day of

On the pleadings in this action, and on the annexed affidavit of A. T., verified on the 19 [and mention other papers relied on], and on motion of A. T., attorney for

ORDERED, that M. N. appear before the justice of this court holding Special Term [Part II] at the county court house in the city of

o'clock in the

on behalf of the

on the day of

19 at

noon of that day, to be examined as a witness [plaintiff] in this action.

[Or, ORDERED, that the deposition of M. N., on behalf of the plaintiff herein, be taken before R. F., Esq., who is hereby appointed referee for such purpose, at the residence of said M. N., No. street, in the city of

on the day of o'clock on said day, and on such other

days as said referee may name.]

Service of a copy of this order and of the annexed affidavit on the attorney for the defendant, and also on the above-named M. N., within [the county of

day of

74

19

in] this State, on or shall be sufficient.75

before the

[Date.]

[Signature of judge with initials of title.]

[Pay usual witness fees, and, in case of non-resident, may also serve subpoena.]76

[May compel attendance of witness by proceedings for contempt; see pp. 1529-1536.]

72a Johnson v. New Home Sewing Mach. Co., 62 App. Div. 157, 70 N. Y. Supp. 875.

73 N. Y. Code Civ. Pro., § 873. Procure ex parte.

74 N. Y. Code Civ. Pro., § 886, for case of a non-resident.

75 Cowen v. Ferguson, 18 Abb. N. C. 241.

76 The witnesses' remedy for failure to serve subpœna in addition to order, is by motion to vacate the order. Cowen v. Ferguson, 18 Abb. N. C. 241.

FORM No. 1508.

Deposition taken conditionally (de bene esse).77

[Title of court and cause.]

Before Hon. J. K., Judge

[or, Before R. F., Esq., Referee].

Deposition of M. N., taken at the instance of the [defendant] above named under the annexed order, this

day of

19 [pursuant to section 873 of the N. Y. Code of Civil Procedure]. Appearances:

A. T., Esq., for plaintiff;

T. Z., Esq., for defendant.

The said M. N. being first duly sworn [or, affirmed], and being examined by T. Z., Esq., counsel for defendant, deposes and says:

On his direct examination.

[Insert substance, or question and answer.78]

On his cross-examination.

[Insert substance, or question and answer.]

[For note of adjournment, objections, etc., see Form 1421, etc., pp. 1649-1651.]

Subscribed and sworn to before

me this day of

19

[Signature of witness.]

[Signature and title of judge or referee.]

[File order and affidavit on which it was granted, and proof of service (or the stipulation), with deposition," duly certified, (as below) with ten days after deposition completed.8o]

day of

I hereby certify81 that pursuant to an order granted by me [or, Mr. Justice J. K.] on the 19 [and a warrant subsequently issued by me thereonor, pursuant to a

77 N. Y. Code Civ. Pro., § 882. 78 It is not essential that the questions should be taken down (see Gibson v. Pearsall, 1 E. D. Smith, 90); nor that the judge take down the examination himself. He may administer the oath, and then, after the witness has been examined in his presence, and the examination has been written down by counsel, the judge reads it over to the witness before it is signed and certified. McDonald v. Garrison, 18 How. Pr. 249, 9 Abb. Pr. 34. See N. Y. Code Civ. Pro., § 880. 79 For jurat where interpreter is employed, see Form 1388.

80 N. Y. Code Civ. Pro., § 880. The court has power to permit filing_nun pro tunc upon cause shown. Farth v. Ulster, etc., R. Co., 70 App. Div. 303, 75 N. Y. Supp. 420, 10 Anno. Cas. 449.

81 No special form of certificate is required by the New York statute. Code Civ. Pro., § 880. It may be presumed that the acts were done before the certificate was given. Sheldon t. Wood, 2 Bosw. 267; aff'd on other points in Byxbie v. Wood, 24 N. Y. 607.

stipulation entered into by the parties to this cause, dated the day of 19 1, M. N., whose deposition is herein. contained [or, hereto annexed], attended before me, [the referee named in said order] with the counsel for the respective parties, on the day of 19 at ; and that [after hearing counsel] I proceeded to take the deposition of the said M. N., who being first by me duly sworn [or, affirmed] to testify the truth, the whole truth, and nothing but the truth as to the matters respecting which he was to be examined, was examined by the respective parties, and testified as set forth in the within [or, annexed] deposition, which he subscribed in my presence, after the same had been carefully read over to him.

[Date.]

[Signature and title of judge — or, referee.]

The People of the State of New York to [naming witnesses], greeting:

WE COMMAND YOU, † that, all business and excuses being laid aside, you and each of you appear and attend before § one of the justices of our supreme court, at a Trial Term [or, at a Special Termin some counties must designate the part where witness is to attend, as: Trial Term, Part III] to be held in and for the county of [New York], at the County Court House in the [Borough of Manhattan,] [or, before one of the justices of the City Court of the City of New York, at a Trial Term [Part 1] to be held at the Court House thereof, No. 32 Chambers street, Borough of Manhattan, in said city—or, before the county court of the county of appointed to be held at-etc.- or, before R. F., Esq., the referee appointed by the court, at his office, No. street, in the city of ], on the day of at o'clock in the noon, to testify and give evidence in a certain action now pending in the said court, then and there to be tried, between A. B., plaintiff, and Y. Z., defendant, on the part of the plaintiff [or, defendant]; * and for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sustained thereby

19

82 A subpoena from the New York Supreme Court, a county court (Id., 347), or a surrogate's court (Id., 2481, subd. 3, § 2515), may be served (as prescribed in Id., § 852) in any county of the State. A subpna from the City Court of New York may be served in New York,

Richmond, Kings, Queens and Westchester (Id., § 338).

83 A subpoena ticket was held good, though it did not specify the place where the court was to be held, as such places of meeting were regulated by public act. People v. Van Wyck, 2 Cai. 334.