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sonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally.
Foreign witness, temporarily present, may be so examined. Wait. v. Whitney, 7 Cow., 69.
$ 622. Application, on what facts.—The application must be made upon affidavit, showing:
1. The nature of the crime charged ;
3. The name and residence of the witness, and that his testimony is material to the defense of the action ; and,
4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial.
$ 623. If during term, to be made to the court. — The application, if made during the term, must be made to the court.
§ 624. If not during term, to whom to be made.If not made during the term, it may be made as follows:
1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions other than in the city of New York, to a judge of the supreme court, or to the county judge:
2. When the indictment is pending in the court of general sessions of the city of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas of that city :
3. When the indictment is pending in a city court, to the recorder or city judge of the city in which it is pending
§ 625. The order, when granted and what to contain.-If the court or officer be satisfied, that the examination of the witness is necessary to the attainment of justice, an order must be made, that the witness be examined conditionally, at a specified time and place, and that a copy of the order, and of the affidavit on which it was granted, be served on the district attorney, within a specified time before that fixed for the examination.
§ 626. If made by the court, may direct examination before a judge or magistrate.-If the order be made by the court, it may direct that the examination be taken before a judge thereof, or before a magistrate in the county, to be named in the order. If made by any of the officers mentioned in section 624, it must direct the examination to be taken before him.
§ 627. On proof of service, examination to proceed.-On proof being furnished to the officer before whom the examination is appointed, of the service upon the district attorney, of a copy of the order, and of the affidavit on which it was granted, if no counsel appear on the part of the people, the examination must proceed.
§ 628. If facts on which order was founded, be disproved, no examination.-If the district attorney or other counsel appear on the part of the people, and it be shown to the satisfaction of the court or officer, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed.
$ 629. Testimony, how taken and authenticated. -The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information, as prescribed in section 200.
Defective depositions. Peo. v. Restell, 3 Hill, 289; Peo. v. Warıl, 4 Park., 516 ; l'eo. v. Chrystal, 8 Barb., 545.
§ 630. Filing deposition.—The deposition must be retained by the officer taking it, and filed by him in the office of the clerk of the court without unnecessary delay.
Deposition may be ordered filed nunc pro tunc. Burdell v. Burdell, 1 Duer, 625.
8 631. When it may be read in evidence. The deposition, or a certified copy thereof, may be read in evidence by either party on trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness or infirmity, or of his continued absence from the state.
Inability must exist at time of trial to entitle deposition to be read. Fry v. Bennett, 4 Duer, 247. See Donnell v. Walsh, 6 Bos., 621. What is sufficient proof of inability. Bronner v. Frauenthal, 37 N. Y., 166; Markoe v. Aldrich, 1 Abb. Pr., 55.
$ 632. When to be excluded.— The deposition cannot, however, be read, if it appear that the copy of the order and of the affidavit on which it was founded, was not served on the district attorney, as directed, or that the examination was in any respect unfair or not conducted as prescribed in this chapter.
There must be an opportunity to cross examine. Hewlett v. Wood, 67 N. Y., 394; 7 Hun, 227. If consent given to read deposition, it cannot be withdrawn. Beebe v. Pev., 5 Hill, 32.
§ 633. On reading deposition, what objections may be taken.-Upon the reading of the deposition in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had been examined orally in court.
Objections to the competency of the witness. Ex parte Kip, 1 Pai., 601.
$ 634. Attendance of witness for examination, how compelled.—The attendance of the witness may be enforced, by a subpæna subscribed by the officer, or issued under the seal of the court.
§ 635. Disobedience of witness, how punished. Disobedience to the subpæna, or a refusal to be sworn or to testify, may be punished by the court or officer, as prescribed in section 619.
EXAMINATION OF WITNESSES ON COMMISSION.
SEC. 636. Witness residing out of the state, to be examined for
defendant, as provided in this chapter. 637. In what cases defendant may apply for order to ex.
amine witnesses on commission. 638. Commission defined. 639. Application for commission, on what facts to be
founded. 640. If during term, to be made to the court. 641. If not during term, to whom to be made. 642. Notice of application, when required and how given. 643. Order for commission, when granted. 644. Trial to be stayed until execution and return of com
mission. 645. Interrogatories, and notice of settlement. 646. Cross-interrogatories, and notice of settlement. 647, 618. What may be inserted in interrogatories. 619. Direction as to return of commission. 650. Commission, how executed. 651. Copy of last section to be annexed to commission. 652, 653. Commission, how returned, when delivered to
agent for that purpose. 654. When and how filed. 655. Commission returned by mail, how disposed of. 656. Commission and return to be open for inspection, and
copies to be furnished. 657. Deposition to be read in evidence. What objections
may be taken thereto. § 636. Foreign witness, how examined. When an issue of fact is joined upon an indictment, the defendant may have any material witness residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise..
§ 637. When defendant may apply for.When a material witness for the defendant, resides out of the state, the defendant may apply for an order that the witness be examined on a commission.
Commissions are statutory proceedings solely, and must be strictly pursued. Dwinnelle v. lIowland, 1 Abb. Pr., 87 ; Creamer v. Jackson, 4 id., 413; McColl v. Sun Mut. Ins. Co., 50 N. Y., 332 ; 2 J. & Sp., 310. New commissions for examination of same witnesses may issue. Fisher v. Dale, 17 Johns., 343; Raney v. Weed, 1 Barb., 220 ; or may be ordered re. executed. Baker v. Spencer, 47 N. Y., 562.
§ 638. Commission defined.—A commission is process issued under the seal of the court, and the signature of the clerk, directed to one or more persons, designated as commissioners, authorizing them to examine the witness upon oath, on interrogatories annexed thereto, and to take and return the deposition of the witness, according to the directions given, with the commission.
§ 639. Application for commission, on what based. The application must be made upon affidavit, showing:
1. The nature of the crime charged;
2. The state of the proceedings in the action, and that issue of fact has been joined therein ;
3. The name of the witness, and that his testimony is material to the defense of the action ;
4. That the witness resides out of the state. Sub. 3. Need not state what proof expected. Eaton v. North, 7 Barb., 631; affidavit may be made by agent or attorney, ibid.
§ 640. If during term, to be made to the court. The application, if made during the term, must be made to the court.
§ 641. If not during term to whom to be made.If not made during the term, the application may be made as follows:
1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions, except in the city and county of New York, to a judge of the supreme court or to the county judge;
2. When the indictment is pending in the court of general sessions in the city and county of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas, of that city ;
3. When the indictment is pending in a city court, to the recorder or judge of the court in which it is pending.