589. 28 Hun, 74. 4 Month. L. Bul. 42. § 822 [Am'd 1879.] Where the plaintiff unreasonably 5 Week. Dig. neglects to proceed in the action against the defendant, or one or more defendants, against whom a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly. § 823. Feigned issues have been abolished. In a case, where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating, distinctly and plainly, the questions of fact to be tried. Such an order is the only authority necessary for the trial. / 824. The summons, and each pleading in an action, must be filed with the clerk, by the party in whose behalf it is served, within ten days after the service thereof. If the' party fails so to file it, the adverse party, on proof of the failure,' is entitled, without notice, so an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned. S.) 69. 825. A return or other paper in a special proceeding, 5 N. Y. Sup where no other disposition thereof is prescribed by law, must er. Ct. (J. & be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by him, of a county where one of the parties resides. § 826. [Am'd 1877.] Where a notice, or other proceed ing, is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law. § 827. [Am'd 1877.] Where a provision of this act authorizes the court to approve an undertaking or the sureties thereto; or to make an examination or inquiry, or to appoint an appraiser, receiver, or trustee; it may direct a reference to one or more persons designated in the order, either to make the approval, examination, inquiry or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the court of chancery, on the thirty-first day of December, eighteen hundred and fortysix, a matter was referable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law. CHAPTER IX. TITLE I.-GENERAL REGULATIONS RESPECTING EVIDENCE, AND THE COMPETENCY AND MODE OF EXAMINA TION OF A WITNESS. TITLE II.-COMPELLING THE ATTENDANCE AND TESTIMONY OF General regulations respecting evidence, and the competency and mode of examination of a witness. ARTICLE 1.-Competency of a witness; evidence in particular cases. 2.-Administration of an oath or affirmation, ARTICLE FIRST. COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR 2828. No witness to be excluded 830. Party since deceased. not competent witnesses. to exclude witness; how 2835. Attorneys and counsellors not to disclose communications. 836. Application of the last 837. When witness not excus- 839. Admission by member of 840. Seal,presumptive evidence § 828. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. $829. [Am'd 1877, 1881.] Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person, or the committe of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. A person shall not be deemed inter 26 Hun, 617; 29 Id. 608. ested for the purposes of this section by reason of being a 88 N. Y. 251. stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. 92 N. Y. 239; 34 Hun 97; 95 N. Y. 48; 3 Dem. 37; Id. 324; 35 Hun, 199; 37 Id. 526; Id. 656, 41 Id. 203; 104 N. Y. 506; 105 Id. 332; 1 Conn. 203; 110 N. Y. 513; 3 N. Y. Supp. 518; 112 N. Y. 426; Id. 493; 113 Id. 386; 114 Id. 287; 117 Id. 91; Id. 500; Id. 606; 118 Id. 46; 24 N. Y. State Rep. 322; Id, 332; Id. 685; 25 Id. 309; 26 Id. 24'; Id. 594; Id. 840; 27 Id. 900; 120 N. Y. 536; 121 Id. 575; 29 N. Y; State kep. 882; 33 Id. 775; 34 Id. 448; 124 N. Y. 487; 505; 126 Id. 552. § 830. [Am'd 1878, 1879, 1893.] Where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the deced. ent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing may be given or read in evi tence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. The testimony of any witness who his died or become insane after a former trial or hearing of a contested proceeding, a special proceeding or an action may be read upon a subsequent trial or hearing, by any party to such action or proceeding, subject to legal objections. § 831. [Am'd 1877, 1879, 1880, 1887. A husband or wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintif, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. § 832. [Am'd 1879.] A person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding; but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question relevant to that inquiry; and 26 N.Y.State Rep. 863; 31 Id. 549. 41 Hun, 424. 110 N.Y. 386. 12 Civ. Pro. 181. 24 N.Y.State Rep. 708. 61 How. Pr. 61. 132 N.Y. 181. 1 Civ. Pro. 47. Bul. 62. 2 Month. L. 91 N. Y. 241. 62 How. Pr. 148. 121 N.Y. 266. 67 N. Y. 185. 19 Hun, 55; 24 Id. 43; 32 Id. 306. 99 N. Y. 56. 101 Id. 126. 5 Redf. 181. 41 Id. 203. 111 N.Y. 220. the party cross-examining him is not concluded by his answer to such a question. § 833. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. § 834. A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity. 103 Id. 573; 20 Abb. N. C. 162; 45 Hun. 307; Id. 439; 106 N. Y. 298; 53 Hun. 217; 23 N. Y. State Rep. 706; 24 Id. 938; 25 Id. 843; 26 Id. 242; 27 Id. 905; 112 N. Y. 493; 118 N. Y. 77; 3 N. Y. Supp. 518; 53 Hun, 398; 24 N. Y. State Rep. 533; 34 N. Y. State Rep. 824; 126 N. Y. 450; 129 N. Y. 654; 133 Id. 450; 136 Id. 423. § 835. An attorney or counsellor-at-law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment. 18 Abb. N.C.101; 5 Dem. 151; 46 Hun, 151; 111 N. Y. 220; 6 N.Y. Supp. 397; 21 N. Y. State Rep. 765; 26 Id. 64; Id. 953; 27 Id. 608; 28 Id. 342; 34 Id. 448; 51 Hun, 351; 128 N. Y. 420; 131 N. Y. 160; Id. 177. But a § 836. [Am'd 1877, 1891, 1892, 1893, amendment to take effect July 1, 1893.] The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when, the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir-at-law or any of the next of kin, of such deceased or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion may, notwithstanding such deposition, order that a subpoena issue for the attendance and examination of such physician or surgeon upon the trial of the action. In such case a copy of the order shall be served together with the subpoena. Sections eight hundred and seventy-two, eight hundred and seventy-three, eight hundred and seventy-four, eight hundred and seventy-five, eight hundred and seventy-six, eight hundred and seventy-nine, eight hundred and eighty, eight hundred and eighty-four and eight hundred and eighty-six of this code apply to the examination of a physician or surgeon as prescribed in this section. § 837. A competent witness shall not be excused from 131 N.Y. 490. answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness. § 838. The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. § 839. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction, in which he was the authorized agent of the corporation. § 840. [Am'd 1877.] A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. |