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EVIDENCE, AND THE COMPETENCY AND
TITLE II. - COMPELLING THE ATTENDANCX
TESTIMONY OF A WITNESS.
General regulations respecting evidence, and the compe
tency and mode of examination of a witness. Alrios 1. Competency of a witness; eridence in particular casos.
7. Administration of an oath or airmation.
COMPETENCY OF A WITNESS ; EVIDENCE IN PARTICULAR
NO. 828. No witness to be excluded by reason of interest, .
829. When party, etc., cannot be examined.
and counsellors not to disclose communication
81. Presumption of death in certain cases. $ 828. No witness to be excluded by reason of te terest, eto -- Except as otherwise specially preporibed Is this title, & person shall not be excluded or oscurad
from being a witness, by reason of his or her interest la the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife(1) of a party thereto, or of a person in whose behalf an actior or special proceeding is brought, prosecuted, opposed, or defended.
Co. Proc., 398; and L. 1867, ch. 887, X1. (1) Matteson v. N. Y. O. R. R. Co., 62 Barb. 364; Birdeall v. Patteson, SI N. Y. 43; Sonthwick v. Southwick, 49 id. 310, Taylor y. Jennings, 7 Kuv. Asi; Wehrkamp y. Willett, 1 Keyes, 250 ; Southwick v. Southwich, i Sweeny, 47,
49 N Y. 610; and 9 Abb. Pr. N. S. 109 ; Minler u. Minier, 4 Lans. 421; Dennis o. Crittenden, 42 N. Y. 542.
$ 829. [Amended, 1881.] When party, etc., cannot be examined. Upon the trial of an actiun or the hear. ing upon the merits of a special proceeding, a party or a 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 committee 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 interested for the purposes of this section by reason of being a stockholder or officer of any bank. ing corporation which is a party to the action or proceeding, or interested in the event thereof,
Substitute for Co. Proc., 8399. Bennett v. Austen, 5 Hua, 536; Mulqueen o. Dutfy, 6 id. 299; Jacques v. Elmore, 714. 675, Tooley v. Bacon, 8 1d. 176; Brague v. Lord (Ct. App.), 15 Alb. L. J. 66. See, also, Mattoon u. Young, 46 N. Y. 696; Buck v.Stanton, 5110.624; Cary v. White, 59 1d.336; Hier v. Grant, 47 id. 278; Smith v. Hazard, 4 lun, 418; Denham v. Jayne, 3 Id. 614; Parhan v. Moran, 4 Hun, 717; Flatch v.Peugnet, 64 Barb. 189; Sanford v. Sanford, 61 ld. 293 ; Card v. Card, 7 Trans. App. 147; Angerine v. Angevine, 48 Barb, 417; Timon o. Claffy, 45 id. 133; Williston v. Wil'iston, 41 id. 635; Van Alstyne v. Van Alstyne, 28 N. Y. 378; Stromone u. Blssons, 26 Id. 264; Hight v. Sackett, 34 id. 47; Schenck v. Warner, 37 Barb. 288; Wildey v. Whitney, 25 How. 75; Penny v. Black, 6 Bosw. 30.
Head v. Teeter, 10 Hun, 548;. Tilton v. Ormsby, id. ?: Brague v, Lord, 2 Abb. N. C. 1; Somerville_v. Crook, 9 Hun, 664; Hobart v. Hobart, 62 N. Y. 80; Alexander v. Dutcher, 7 Jun, 439, atfd. in Ct. of App. 16 Alb. L. J. 224; Andrews v. Nat. Bk., 7 fun, 20; Haughey v. Wright, 12 id. 179; Cornell v. Cornell, id. 312; Le Clare v. Stewart, 8 id. 127; Miller v. Adkins, 9 id. 9; Brown v. Richards, 20 N. Y.472; Potter v. Bushnell, 10 How. 94; Dewey v. Goodenough, 56 Barb. 54; Green o. Edick, 56 N. Y, 613.
$ 830. (Amended, 1893.) When party, etc., cannot be examined. When party has died. Where a party has died since the trial of an action, or the hear. ing upon the merits of a special proceeding, the testimony of the decedent, 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 evidence 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 ob. jection to his testimony or any question put to him. The testi. mony of any witness who has 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 objection. In effect May 5, 1893; Laws 1893, ch. 595.
$ 831. [Amended, 1879, 1880, 1887.) When husband and wife not competent witnesses. When competent.- A husband or a wife is not competent to testity 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 consent of the other, if living, allowed, to disclose a confidential communication, made by one to the other, during marriage (1) In an action for crimiual conversation, the plaintiff's wife is not a competent witness for the plaintiff, 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 communicatiou had or made between herself and the plaintiff.(2)
L. 1867, ch. 887,832 and 3 (7. Edm. 198), am'd. Hicks v. Bradner, 3 Abb. Ct. App. Dec, 362. (1) Southwick v. Southwick, 9 Abb. N. S. 109; S. C., 49 N. Y. 510. (2) s. C., 35 How. 118.
$ 832. (Amended, 1879.] Conviction for crime not to exclude witness; how conviction proved.-- A per. 800, 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 tecori, or by his cross-examination, upon which he must answer any question, relevant to that inquiry ; and the party cross-examining him is not concluded, by his answer to such a question. 2008.
$ 833. Clergymen, etc., not to disclose confessions. - 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. ?R. S. 406, 872, am'd. People v. Gates, 13 Wend. 311.
$ 834 Physicians not to disclose professional infor. mation.- A person, duly authorized to practice physio of surgery, shall not be allowed to disclose any infor. mation which he acquired in attending a patient, in a
professional capacity, and which was necessary to enable him to act in that capacity.
2 R. S. 406, $ 73. Edington v. Mut. L. Ins. Co., 6 Hun, 1; Sload 0. N. Y. C., etc., 45 N. Y. 125; Hunn v. Hann, 1 T. & C. 499; Peoplo v. Stout, 3 Park Cr. 670; Johnson v. Johnson, 14 Wend. 637; Allen o. Public Adm'r, 1 Bradf. 221; Kendall v. Grey, 2 Hilt., 300; Hewit v. Prime, 21 Wend. 79; Sioan v. N. Y. C. R. R. Co., 45 N.Y. 125; Hunn v. Hunn, 1 N. Y. Sup. Ct. (T. & C.), 499.
$ 835. Attorneys and counsellors not to dise close communications.-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.
New in form. Genet v. Ketchum, 62 N. Y. 626; Cary o. White, 59 id. 336; Carnes v. Platt, 46 How. 520; 8. C., 15 Abb. N. S. 337; Rogers v. Lyon, 64 Barb. 373; Mulford v. Muller, 1 Keyes, 31; Whitney v. Barney, 38 Barb. 393; Whiting v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 id. 51; Yates v. Olmstead, 56 id. 632; Rochester City Bank v. Saydam, 5 How. 257; Graham v. People, 63 Barb. 468; Rogers v. Lyon, 64 id. 373; Sanford v. Sanford, 61 Barb. 293; Robinson v. Dauch, 3 id. 20; Little v. McKeon, 1 Sandf. 607; 6. C., 6 N. Y. Leg. Obs. 238; 238; Caniit v. Myers, 15 Johns. 246; Gaul 0. Groat, 1 Cow. 115; Tullock v. Ounningham, id. 266; Pixley v. Butts, 2 1d. 421; Blatchley v. Moser, 15 Wend. 215.
$ 836. (Amended, 1893.) Application of the last three sections.—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. But a 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 834 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 ques. tion, 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 becom. ing 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 institu. tion 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 subpæna 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