CHAP. XI. or refusal prove his damages, as if it had not been made, and shall not Effect of be permitted to give it in evidence. And if the damages acceptance assessed in his favor shall not exceed the sum mentioned in of offer. the offer, the defendant shall recover his expenses, incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial. CHAPTER V. ADMISSION OR INSPECTION OF WRITINGS. SEC. 388. A party may be required to admit a paper to be genuine, or pay expense of proving it. Inspection and copy of books, papers and documents, how obtained. and copy papers and how ob § 388. Either party may exhibit to the other, or to his Inspection attorney, at any time before the trial, any paper, material of books, to the action, and request an admission in writing of its documents, genuineness. If the adverse party or his attorney fail to tained. give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense to be ascertained at the trial, shall be paid by the party refusing the admission; unless it appear to the satisfaction of the court that there were good reasons for the refusal. The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any books, papers and documents in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both. 16 N. Y., 419; 11 N. Y., 582; 32 B., 76, 656; 15 How. P. R., 299; 12 CHAPTER VI. EXAMINATION OF PARTIES. SEO. 389. Actions for discovery, abolished. 390. A party may examine his adversary as a witness, on the trial. 391. Such examination also allowed before trial. 392. Party how compelled to attend. 393. Testimony of party may be rebutted. 394. Effect of refusal to testify. Proceedings therefor. 395. Testimony by a party not responsive to the inquiries, may be rebutted by the oath of the party calling him. 396. Persons for whom action is brought or defended, may be examined. 397. Examinations of co-plaintiff or co-defendant. $389. No action to obtain discovery under oath, in aid of Action for the prosecution or defence of another action, shall be allowed, abolished discovery PART III. A party may examine his adversary as a witness nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter. 16 B., 509; 11 B., 648; 10 B., 114; 8 B., 657; 6 B., 176; 22 How. P. R., 375; 18 How. P. R., 160; 10 How. P. R., 49; 8 How. P. R., 322; 6 How. P. R., 145; 3 How. P. R., 324; 9 Ab., 421; 6 Ab., 19; 5 Ab., 419. $390. A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in on the trial. the same manner, and subject to the same rules of examination, as any other witness to testify, either at the trial, or conditionally, or upon commission. Such examination also al lowed before trial. Proceedings therefor. Party, how compelled 32 B., 656; 30 B., 341, 519; 15 B., 451; 10 B., 114; 19 How. P. R., 86; 11 How. P. R., 518; 8 How. P. R., 226; 7 How. P. R., 261; 5 How. P. R., 160, 283; 3 How. P. R., 318; 12 Ab., 216; 7 Ab., 75; 6 Ab., 19, 281, 355; 5 Ab., 419; 2 Ab., 106. S 391. The examination, instead of being had at the trial as provided in the last section, may be had, at any time before the trial, at the option of the party claiming it, before a judge of the court or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown, the judge order otherwise. But the party to be examined, shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. 1 N. Y., 424; 32 B., 656; 15 How. P. R., 338; 14 How. P. R., 451, 513; 11 How. P. R., 518; 12 Ab., 215; 7 Ab., 75; 6 Ab., 19, 277; 5 Ab., 418. S392. The party to be examined, as in the last section to attend. provided, may be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial. Testimony of party may be rebutted. Effect of refusal to testify. Testimony by a party sive to the 29 B., 71; 7 Ab., 75. $393. The examination of the party thus taken, may be rebutted by adverse testimony. 6 How. P. R., 161. S394. If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer, or reply, may be stricken out. 7 Ab., 75, 232; 4 Ab., 95. $395. A party examined by an adverse party, as in this not respon- chapter provided, may be examined on his own behalf, in inquiries, respect to any matter pertinent to the issue. But if he tesmay be re- tify to any new matter, not responsive to the inquiries put to the oath of him by the adverse party, or necessary to explain or qualify calling him. his answers thereto, or discharge when his answers would butted by the party charge himself, such adverse party may offer himself, as a witness on his own behalf, in respect to such new matter, and shall be so received. See post, Laws of 1863, ch. 392. 19 B., 510; 18 B., 326; 15 B., 451; 14 B., 536; 10 How. P. R., 49, 12 CHAP. XI. whom ac brought $396. A person for whose immediate benefit the action is Persons for prosecuted or defended, though not a party to the action, may tion is be examined as a witness, in the same manner, and subject to or defended the same rules of examination, as if he were named as a party. may be ex 11 B., 645; 6 How. P. R., 443. amined. tion of co § 397. A party may be examined on behalf of his co-plain- Examinatiff or of a co-defendant, as to any matter in which he is not party. jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever in the case mentioned in sectious three hundred and ninety and three hundred and ninety-one, one of the several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action, or defense, and shall be so received. As amended by Laws of 1851, ch. 479; 1852, ch. 392. 17 N. Y, 513; 14 N. Y., 483; 11 N. Y., 131; 32 B., 656; 27 B., 348; 15 CHAPTER VII. EXAMINATION OF WITNESSES. SEC. 398. No witness to be excluded by reason of interest. 399. Parties may be examined as witnesses in certain cases. May be examined by commission. Assignor as witness. $398. No person offered as a witness, shall be excluded by No witness reason of his interest in the event of the action. 23 16 N. Y., 417, 547; 12 N. Y., 374; 9 N. Y., 157, 173; 3 N. Y., 490; to be excluded by reason of interest. actions may tain cases. $399. A party to an action or special proceeding, including Parties to proceedings in surrogates' courts and proceedings for the sum- be examin mary recovery of the possession of land, may be examined as ed in cera witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witnesses; provided, however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf, in respect to any transaction or communication had personally by said assignor, or said party, respectively, with a deceased person against parties who are the executors, administrators, heirs-at-law, next of kin or assignees PART III. Definition of such deceased person, where they have acquired title to the cause of action, immediately from said deceased person, or have been sued as such executors, administrators, heirs-at-law, next of kin or assignees. But where such executors, administrators, heirs-at-law, next of kin or assignees shall be examined on their own behalf in regard to any conversation or transaction had between the deceased person, and said assignor or said party, respectively, then the said assignor or the said party may be examined in regard to such conversation or transaction, but not in regard to any new matter. Amended by Laws of 1851, ch. 479; 1857, ch. 353; 1858, ch. 306; 1859, ch. 428; 1860, ch. 459; 1862, ch. 460; 1863, ch. 392. 23 N. Y., 88; 22 N. Y., 353; 16 N. Y., 417; 14 N. Y., 469; 13 N. Y., 293; 12 N. Y., 374; 9 Ñ. Y., 157, 173; 3 N. Y., 490; 32 B., 519; 31 B., 520; 30 B., 341, 517; 29 B., 177; 28 B., 84; 27 B., 351; 25 B., 437, 597; 21 B., 275; 18 B., 410, 532; 16 B., 261, 580; 15 B., 318; 14 B., 655; 12 B., 340, 366; 11 B., 472, 635, 649; 22 How. P. R., 375; 19 How. P. R., 34, 86; 18 How. P. R., 169; 17 How. P. R., 258, 428; 16 How. P. R., 187; 15 How. P. R., 165, 278, 289; 14 How. P. R., 75; 13 How. P. R., 198; 12 How. P. R., 73, 163; 11 How. P. R., 248, 404; 10 How. P. R., 60, 94, 395, 555; 8 How. P. R., 342; 7 How. P. R., 1; 6 How. P. R., 128, 397; 12 Ab., 1, 247, 322, 421; 9 Ab., 40; 8 Ab., 66, 335; 7 Ab., 21, 415; 6 Ab., 288; 3 Ab., 31; 2 Ab., 106, 153. CHAPTER VIII. MOTIONS AND ORDERS. SEC. 400. Definition of an order. 401. Definition of a motion. Motions, how and where made. 402. When notice is necessary, it must be eight days before hearing. 403. In actions in supreme court, county judge may act at chambers. His orders how reviewed. 404. In absence of judge at chambers, motion may be transferred by him to another judge. 405. Enlarging time for proceedings in an action. $ 400. Every direction of a court or judge, made or entered of an order. in writing, and not included in a judgment, is denominated an order. Motion, what is, how and 18 How. P. R., 83; 15 How. P. R., 61, 117; 8 How. P. R., 276; 7 How. P. R., 360; 6 How. P. R., 127; 6 Ab., 13; 3 Ab., 387. S 401. 1. An application for an order is a motion. 2. Motions may be made in the first judicial district to a where made judge or justice out of court, except for a new trial on the merits. 3. Orders made out of court, without notice, may be made by any judge of the court, in any part of the state; and they may also be made by a county judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides, except to stay proceedings after verdict. 4. Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable; except that, where the action is triable in the first judicial district, the motion must be made therein, and no motion upon notice can be made in the first judicial district in an action triable elsewhere. 5. In all the districts, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions. 6. No order to stay proceedings for a longer time thần twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party. CHAP. XI. feree may ed, and wit When any party intends to make or oppose a motion in When reany court of record, and it shall be necessary for him to have be appointthe affidavit of any person who shall have refused to make the nesses subsame, such court may by order appoint a referee to take the pœnaed. affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. And the fees of such referee for such service shall be three dollars per day. Amended by Laws of 1852, ch. 392; 1858, ch. 306; 1859, ch. 428; 1862, ch. 460. 19 B., 587; 17 B., 229; 16 B., 590; 20 How. P. R., 441; 18 How. P. R., $402. When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time. 6 How. P. R., 350; 13 Ab., 76; 12 Ab., 294; 7 Ab., 75; 5 Ab., 419. in supreme County $403. In an action in the supreme court, a county judge, In actions in addition to the powers conferred upon him by this act, may court, exercise, within his county, the powers of a judge of the judge may supreme court at chambers, according to the existing practice, chambers. except as otherwise provided in this act. And in all cases His orders, where an order is made by a county judge, it may be reviewed viewed. in the same manner as if it had been made by a judge of the supreme court. 9 B., 387; 11 How. P. R., 204; 5 How. P. R., 386; 12 Ab., 293. how re &c., of chambers. may be by him to S 404. When notice of a motion is given, or an order to In absence, show cause is returnable, before a judge out of court, and at Judge at the time fixed for the motion, he is absent, or unable to hear it, motion the same may be transferred, by his order, to some other judge, transferred before whom the motion might originally have been made. another 3405. The time within which any proceeding in an action judge. must be had, after its commencement, except the time within time for which an appeal must be taken, may be enlarged, upon an in an action affidavit showing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. 11 N. Y., 275; 18 How. P. R., 324; 14 How. P. R., 19, 313, 430; 13 Enlaging proceeding |