ssued, by and under the hand of the judge, arbitrator eferee, or other person, or the chairman, or a majority, f the board or committee, requiring the person to atand; and also, in a proper case, to bring with him a ok or paper. The subpoena must be served, as preribed in section eight hundred and fifty-two of this st. This section does not apply to a matter arising, r an act to be done, in an action in a court of record. 2 B. S. 401, 44, am'd. $855. [Amended, 1879.] Penalty for disobeying subpoena. Warrant for witness. A person who is duly subpoenaed, as prescribed in the last section, must obey the subpoena. If he fails so to do, without a reasonable excuse, he is liable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, to be recovered as prescribed in section eight hundred and fifty-three of this act. If he fails to attend, the person issuing the subpoena. if he is a judge of a court of record or not of record, or if not, then any judge of such a court, upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff of the county commanding him to apprehend the defaulting witness, and bring him before the officer, per son, or body, before whom or which his attendance was required. Id., ?? 45 and 46, consolidated. Bleecker v. Carroll, 2 Abb. 83; Andrews v. Andrews, 2 Johns. Cas. 109. $856. [Amended, 1879.] When witness to be imprisoned. If the person subpoenaed and attending or brought as prescribed in the last section, before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by the terms of the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. Id., 47, am'd verbally. 1 Paige, 601; People v. Dyckman, 24 How, 999. See 2 876. - § 857. Contents of warrant. A warrant of commit ment, issued as prescribed in the last section, must specify particularly the cause of the commitment; and, If the witness is committed for refusing to answer & question, the question must be inserted in the warrant, 2 R. 8. 401, 48. See ? 876. 858. To whom directed; how executed. — A war. rant to apprehend or commit a person, issued as prescribed in this title, must be directed to the sheriff of the county where the person is, and must be executed by him, in the same manner, as a similar mandate is sued, by a court of record, in an action. Id. 402, 49. See ? 876. § 859. Qualification of preceding sections. - The foregoing sections of this title do not apply to a subpœna issued by a justice of the peace; or to a witness subpoenaed to attend a court held by a justice of the peace; or to a case where special provision is otherwise made by law, for compelling the attendance of a wit ness. Id., 50. § 860. Witness exempt from arrest. A person duly and in good faith subpoenaed or ordered to attend, for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend. Id., 51. Brett v. Brown, 13 Abb. N. S. 295; Lamkin v. Starkey, 7 Hun, 479; Hardenbrook's Case, 8 Abb. 416; Seaver v. Robinson, 3 Duer, 822: 8 c., 12 N. Y. Leg. Obs. 120; Merrill v. George, 23 How. 331; Pollard . Union Pacific B. R. Co., 7 Abb. N. S. 70; Clark v. Grant, 2 Wend. 257; Stewart v. Howard, 15 Barb. 26; Cole v. McClellan, 4 Hill, 59; Petrie v. Fitzgerald, 1 Daly, 401; Salhinger v. Adler, 2 Rob. 704; Farmer v. Bobbins, 47 How. 415. § 861. When to be discharged from arrest. - The court, from which a subpoena, served in good faith, was issued, or by which an order was made, requiring a person to attend, for the purpose of being examined; or a judge thereof, upon proof, by affidavit, of the facts, must make an order, directing the discharge of a witness of other person, from an arrest made in violation of the last section. 2 R. S. 402, § 52, am'd. Stewart v. Howard, 15 Barb. 27; Norris v. Beach, 2 Johns. 294; Sanford v. Chase, 3 Cow. 381. § 862. [Amended, 1895.] By whom witnesses may be discharged.- A justice of the supreme court, in any part of the State, or a county judge, has the like authority as a judge of the court, to make an order for a discharge, in a case specified in the last section. (1) Upon satisfactory proof, by affidavit, of the facts, he must also make an order, directing the discharge of a person arrested, in violation of section eight hundred and sixty of this act, where a subpoena, served in good faith upon the person arrested, was issued as prescribed in section eight hundred and fifty-four of this act.(2) In effect Jan. 1, 1896; L. 1895, ch. 946. (1) Id., § 53. (2) New. § 863. Arrest, when void; penalty. An arrest made contrary to the foregoing provisions of this title, is absolutely void, and is a contempt of the court, if any, from which the subpoena was issued, or by which the witness was directed to attend. An action may be maintained, by the person arrested, against the officer or other person making such arrest, in which the plaintiff is entitled to recover treble damages. A sim Ilar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest. Id., 54. § 864. [Amended, 1877.] Sheriff not to be liable unless affidavit is made. - But a sheriff or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit, to the effect that he was legally subpoenaed or ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit, he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer "The word "an" omitted by an error in engrossing. arresting him, and exonerates the officer from liability for not making the arrest. 2 R. 8. 402, 55, am'd. § 865. Application of foregoing provisions to judg ments. The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply, where such an attendance is required by the terms of a judgment. New. § 866. [Amended, 1895.] Records not to be removed by virtue of subpoena.- The record of a conveyance of real property, or any other record, or document, whereof a transcript duly certified may by law be read in evidence, shall not be removed, by virtue of a subpœna duces tecum, from the office in which it is kept; except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk; or by the officer, having it in custody, to a term or sitting of a court, or a trial before a referee, held in the city or town where his office is situated. Where it is required at any other place, it may be removed, by order of the supreme court, or a county court, made in court, and entered in the minutes; specifying that the production of the original, instead of the transcript, is necessary. In effect Jan. 1, 1896; L. 1895, ch. 946. L. 1838, ch. 129, and 4 Edm. 549, am'd. -- § 867.[Amended, 1879.] Production, etc., of book of account. A person shall not be compelled to produce, upon a trial or hearing, a book of account, otherwise than by an order requiring him to produce it, or a subpoena duces tecum. Such a subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a sub poena or order, the witness may obtain, upon such a notice as the judge, referee, or other officer prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena or the order for production, upon such terms as justice requires touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom, or otherwise. An order may be made, as prescribed in this section, by a judge of the court, or in a special proceeding pending out of court before an officer, by the officer, or, in either case, by a referee duly appointed in the cause, and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an action brought in his court, at any time after the commencement thereof. New. § 868. Books, etc., of corporation, how produced. -The production, upon a trial, of a book or paper, be longing to or under the control of a corporation, may be compelled, in like manner as if it was in the hands, or under the control, of a natural person. For that purpose, a subpoena duces tecum, or an order, made as pre scribed in the last section, as the case requires, must be directed to the president, or other head of the corpora tion, or to the officer thereof, in whose custody the book or paper is. See Morgan v. Morgan, 16 Abb. N. S. 291; Bank v. Hillard, 5 Cow. 158; La Farge v. La Farge, 6 Duer, 600; 8. o., 14 How. 26. $ 869. When personal attendance not required by subpoena duces tecum. In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in section 866 or section 867 of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify re specting the purposes for which it is used. If the per sonal attendance of a particular officer of the corpora tion or public officer is required, a subpœna, without duces tecum clause, must also be served upon him New. TITLE III. Depositions. ARTICLE 1. Depositions, taken and to be used within the State. 1. Depositions, taken without the State, for use within the State. 8. Depositions, taken within the State, for use without the State. |