ARTICLE THIRD. DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE. 80. 914. In what cases deposition may be taken. 915. Subpoena to witness. 916. Contents of subpoena. 917. Subpoena, when no commission 's issued. 920. Penalty for not appearing. § 914. In what cases deposition may be taken. — A party to an action, suit, or special proceeding, civil or criminal, pending in a court without the State, either in the United States, or in a foreign country, may obtain, in the manner prescribed in this article, the testimony of a witness within the State, to be used in the action, suit, or special proceeding. 2 R. S. 397, 29 (2 Edm. 414), as am'd by L. 1867, ch. 68, 1 (7 Edm. 52). Eldridge v. Chapman, 13 Abb. 68. $915. Subpoena to witness.-Where a commission to take testimony, within the State, has been issued from the court, in which the action, suit, or special proceeding is pending; or where a notice has been given, or any other proceeding has been taken, for the purpose of taking the testimony, within the State, pursuant to the laws of the state or country, wherein the court is located, or pursuant to the laws of the United States, if it is a court of the United States; the commission, notice, or other paper, authorizing the testimony to be taken, may be presented, in behalf of the party desiring to obtain it, to a justice of the supreme court, or a county judge, with proof, by affidavit, that the testimony of the witness is material to the party. The judge must thereupon issue a subpoena to the witness, commanding him to appear before the commissioner, named in the commission; or before a commissioner, within the State, for the state, territory, or foreign country, in which the notice was given, or the proceeding taken; or before the officer designated in the commission, notice, or other paper, by his title of office; at a time and place specified in the subpoena, to testify in the action, suit, or special proceeding. Id. 398, 30, and part of 31, as am'd by L. 1867, ch. 68, 1 (7 Edm 62), am'd. § 916. Contents of subpoena. The place, where the witness is commanded to attend, must be within the county in which he resides or sojourns; or, if it is in another county, not more than forty miles distant from his residence, or the place of his sojourn. 2 R. S. 398, remainder of 31, as am'd by L. 1867, ch. 68, 1. $917. [Amended, 1877.] Subpoena, when no com mission is issued.. Where an action, suit, or special proceeding is pending in a court of another state, or of a territory, or of the United States, and proof is made, by affidavit, to the satisfaction of a justice of the su preme court, or a county judge, as follows: 1. That a person, residing or sojourning within the State, is a material witness for either party. 2. That a commission, to take the testimony of the witness, has not been issued. 3. That, according to the course and practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken, is authorized to be received in evidence on the trial or hearing. The judge must issue a subpoena, commanding the witness to appear before him, at a specified time, and at a place within the county in which the witness resides or sojourns, to testify in the action, suit, or special proceeding. Id., 32, remodelled. § 918. [Amended, 1877.] Justice of the peace may subpoena witness. - Where proof is made, by affidavit or otherwise, to the satisfaction of a justice of the peace: 1. That a civil action, suit, or special proceeding is pending in a court of another state, or of a territory or of the United States. 2. That a person, residing or sojourning in the town or city, in which the justice resides, is a material wit ness for either party. 3. That, according to the practice of the court, in which the action, suit, or special proceeding is pending, the deposition of a witness, taken as the one applied for is required to be taken, is authorized to be received in evidence on the trial or hearing. The justice must issue a subpoena, commanding the witness to appear before him, at a specified time, and at a place within the town or city, in which the witness resides or sojourns, to testify in the action, suit, or special proceeding. L. 1831, ch. 191, § 1 (4 Edm. 637), am'd. § 919. Taking and return of deposition. The officer, before whom a witness appears, in a case specified in this article, must take down his testimony in writing; and must certify and transmit it to the court, in which the action, suit, or special proceeding is pending, as the practice of that court requires. Id., 2, am'd. § 920. Penalty for not appearing. A person, who fails to appear, at the time and place specified in a subpoena, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe to his deposition, when correctly taken down; is liable to the penalties, which would be incurred in a like case, if he was subpoenaed to attend the trial of an action in a justice's court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial. L. 1831, ch. 191, § 8, am'd. TITLE IV. Documentary evidence. POLE 1. Documentary evidence, as a substitute for oral testimony. 2 Proof of a document, executed or remaining within the State. & Proof of a document, remaining in a court or public office of the United States, or executed or remairing without the State. ARTICLE FIRST. DOCUMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY. Bao. 921. Certain official certificates, evidence. 922. Certificatc, etc., on file, evidence. a protest of the note or bill, for non-acceptance or non payment, or of the service of notice thereof, on a party to the note or bill, may be made, in any manner author. ized by the laws of the state, territory, or country, where it was payable. L. 1865, ch. 309, second and third sentences of 1 (6 Edm. 467), am’¿ Fassin v. Hubbard, 61 Barb. 548. $926. [Amended, 1877.] Affidavit of printer, etc, evidence. The affidavit of the printer or publisher of a newspaper, published within the State, or of his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the State, to be published in that newspaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and, also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed; or to a case, where the mode of proving a publication is otherwise specially prescribed by law. L. 1835, ch. 159, 21 (4 Edm. 638), am'd. § 927 Id.; of service of notice. J Where it is necessary, upon the trial of an action, to prove the service of a notice, an affidavit, showing the service to have been made by the person making the affidavit, is presump. tive evidence of the service, upon first proving that he is dead or insane, or that his personal attendance cannot be compelled, with due diligence. L. 1858, ch. 244, 1 (4 Edm. 645), am'd by adding the last clause. § 928. [Amended, 1879.] Marriage certificate, evidence. An original certificate of a marriage, within the State, made by the minister or magistrate by whom it was solemnized; the original entry thereof made, pursuant to law, in the office of the clerk of a city or a town, within the State; or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. 2 R. 8. 141, § 17 (2 Edm. 146). 929. Book of foreign corporation; when evidence Where a party wishes to prove an act or transaction f a foreign corporation, the book or books of the cor poration may be used for that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. Substitute for L. 1863, ch. 206, part of § 1, as am'd by L. 1869, ch. 589. § 930. When a copy thereof is evidence. If an orig inal book is not produced at the trial, as prescribed in the last section, a copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with like effect as the original book; provided that the party, intending to use the copy, gives the adverse party at least ten days' notice of his intention, specifying briefly the nature of the evidence proposed to be given. But this and the next section do not apply, where the foreign corporation is a party to the action, and seeks to prove its own act or transaction, in its own behalf. L. 1863, ch. 206, parts of 1 and 2, am'd. § 931. How copy to be verified. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has examined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct; that he made it, or compared it with the original; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation ; or that it was then acknowledged to him to be such, by an officer or receiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where, and in whose custody, the original was then kept. Id., part of 1. ARTICLE SECOND. PROOF OF A DOCUMENT, EXECUTED OR REMAINING WITHIN THE STATE. Bao. 982. Statutes, etc.; how proved. 933. Copies of records and papers in certain offices, presumptive evidence. 934. Id.; of papers filled with town clerk. 935. Conveyance, when acknowledged, or record, or transcript of record, evidence. 936. Such evidence may be rebutted. 937. What instruments may be acknowledged. 938. Justice's docket and transcript evidence before him. |