ten days service. ten days after the service thereof. If the party fails so to file it, within the adverse party, on proof of the failure, is entitled, without notice, after to an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned. Code Pro., § 416. See Wait's Code, 773; 2 Wait's Pr. 443. Costs may be allowed on an ex parte motion to compel the filing of a plead ing, where the party omits to file it special ings; be filled. § 825. A return or other paper in a special proceeding, where Papers in no other disposition thereof is prescribed by law, must be filed, and proceedan order therein must be entered, with the clerk of the county in where to 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. Laws of 1847, ch. 470 (4 Edm. St. 584), § 20, extended. tion, news etc., in § 826. [Amended, 1877.] Where a notice, or other proceeding, Publicais required by law to be published in a newspaper published in a where no county, and no newspaper is published therein, or to be published paper, oftener than any newspaper is regularly published therein, the pub- county. lication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law. 2 R. S. 572, § 10. refer certain cases. § 827. [Amended, 1877.] Where a provision of this act author- Special izes the court to approve an undertaking, or the sureties thereto; or ences in 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 31st day of December, 1846, 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. See Laws of 1847, ch. 280 (4 Edm. St. 578), § 77. 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. No wit ness to be excluded ARTICLE FIRST. COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR CASES. SEC. 828. No witness to be excluded by reason of interest, etc. 829. When party, etc., cannot be examined. 830. Id.; husband or wife of party, etc. 831. When husband and wife not competent witnessess. Id.; when com petent. 832. Conviction for crime, not to exclude witness; how conviction proved. 833. Clergymen, etc., not to disclose confessions. 834. Physicians not to disclose professional information. 835. Attorneys and counsellors not to disclose communications. 836. Application of the last three sections. 837. When witness not excused from testifying. 838. Evidence of party may be rebutted. 839. Admission by member of corporation. 841. Presumption of death in certain cases. § 828. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, of inter by reason of his or her interest in the event of an action or special by reason proceeding; or because he or she is a party thereto; or the husband est, etc. or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. Code Pro., § 398; Laws of 1867, ch. 887, § 1 (7 Edm. 198); Wait's Code, 743, et seq.; 2 Wait's Pr. 655, 656. The statute of 1867 seems to be the complement of $$ 398, 399 of Code Pro., in respect to the removal of the disqualification of being a party, or of being a husband or a wife of a party. Southwick v. Southwick, 49 N. Y. (4 Sick.) 513; affirming S. C., 2 Sweeny, 246. By $ 398, Code Pro., a witness cannot be excluded for interest in any court and before any person "acting judicially," except as qualified by § 399. Tilton v. Ormsby, 10 Hun, 8. Husband and wife, when respect ively plaintiff and defendant in an The wife of a co-defendant is not The legislature did not, in express terms, repeal the prior provision in § 398, in enacting subd. 7 in § 401; hence, that construction must be given which will harmonize one section with the other. Hodskin v. Atlantic and Pacific R. R. Co., 3 Daly, 70, 74. party, not be ex § 829. [Amended, 1877.] Upon the trial of an action or the hear- when ing upon the merits of a special proceeding, a party or a person inter- etc., canested in the event, or a person from, through or under whom such a amined. 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. Code Pro., § 399, as amended, 1877; Wait's Code, 746, et seq.; 2 Wait's Pr. 655, 656. Prior to the amendment of 1866, a plaintiff was a competent witness to testify as to transactions and conversations had with the deceased partner, in his action against the surviving partner. Tremper v. Conklin, 44 N. Y. (5 Hand) 61, 63. Subsequent thereto, he was not. Green v. Edick, 53 N. Y. (11 Sick.) 613. The person through whom a party to an action derives title is not competent, as a witness, to prove transactions with a deceased person as against the grantee of the latter. The word 66 assignee," in § 399, Code Pro., is held to include "grantee." Mattoon v. Young, 45 N. Y. (6 Hand) 696, 700; Gregory v. Gregory, 1 J. & Sp. 1, 32. In an action originally brought to recover the possession of lands by coplaintiffs, if one of the co-plaintiffs die, and his devisees be, by order of the court, substituted as plaintiffs in his stead, and the action be continued in their names and that of the other original co-plaintiff, he having acquired title to the interest claimed by him through an assignment from deceased, the plaintiffs are assignees within the meaning of § 399, Code Pro., as amended in 1862; and the defendant will not be permitted to testify as to transactions and conversations between him and the deceased tending to sustain his counterclaim. Buck v. Stanton, 51 N. Y. (6 Sick.) 624. In an action brought by an heir at law of a deceased grantor, to set aside deeds because of incompetency, and for fraud and undue influence, other heirs, not parties to the action, are not interested in the event thereof within the meaning of § 399, Code Pro., and may testify as to personal transactions and communications between them and the deceased, and to any facts to which any other witnesses might testify. Hobart v. Hobart, 62 N. Y. (17 Sick.) 80. A plaintiff may testify as to a conversation between the deceased and a third party, although the plaintiff participated in the conversation, so long as what is proposed to be proved is limited to what was neither a personal transaction or communication between the witness and the deceased. Cary v. White, 59 N. Y. (14 Sick.) 336, 339. In an action brought by the plaintiff, a widow, to determine conflicting claims of herself and two of the defendants to the amount of a policy of insurance issued by the other defendant, for her benefit, on the life of her husband, and by her assigned to the two defendants, to secure the debt of her husband, the plaintiff is a proper witness to testify as to the transaction between herself and husband at the time of executing the assignment, as the defendants do not derive title from the deceased husband. Barry v. Equitable Life Ass. Soc., 59 N. Y. (14 Sick.) 587. The prohibition of § 399, Code Pro., is not limited to an examination in respect to those matters pertaining to the parts of the action assigned, but extends to the entire action. Lyon v. Snyder, 61 Barb. 172, 180. There is nothing in Code Pro., § 399, which makes the admissibility of evidence of the declarations of the deceased depend upon the fact that, at the time when it is offered, there is some person living who can contradict it. Hatch v. Peugnet, 64 Barb. 189. Where an action is commenced by an executrix against three defendants, by the service upon them of a summons in which all are named as defend ants, and one of the defendants did not appear, and suffered a default, he is not a competent witness as to transactions and conversations with the testator. His default did not operate to sever the action, or to discontinue it as to him. Genet v. Lawyer, 61 Barb. 211, 224. In an action brought by an administratrix, the defendant cannot be permitted to prove a conversation had with the alleged intestate, prior to the issue of letters of administration, even though such conversations would tend to prove that the alleged intestate was alive. Parhan v. Moran, 4 Hun, 719. Where, in an action of trespass quare clausum fregit, the defendant claims to have entered as the agent of the owners, the testimony of the plaintiff's grantors as to conversations between them and a person deceased, at the time of the trial, through whom defendant's principal claims, is inadmissible under § 399, Code Pro. Wheelock v. Cuyler, 4 Hun, 414. A father having emancipated his minor daughter, in a suit brought by such daughter to recover for her services rendered to deceased after such emancipation, is a competent witness to testify as to conversations and transactions had with deceased, regarding the subject-matter of the suit. Shirley v. Bennett, 6 Lans. 515. If a party mentioned in § 399, Code Pro., testifies to declarations of a deceased person in his own favor, the prohibition contained in that section does not apply to counter declarations offered by the adverse party. Smith v. Christopher, 3 Hun, 585; 6 N. Y. Sup. Ct. (T. & C.) 288; 16 Abb. N. S. 332; Cole v. Denue, id. 610; Goodwin v. Hirsch, 5 J. & Sp. 503, 511. In an action upon a promissory note where the defendant interposed a counterclaim for rent due from plaintiff's intestate, he cannot be asked whether he had ever received any money from plaintiff's intestate, or any one representing him. Baldwin v. Smith, 5 Hun, 454. A fact that a party cannot prove directly under § 399, Code Pro., can not be established inferentially, by her testimony. Johnson v. Spies, 5 Hun, 468, 471; Jacques v. Elmore, 7 id. 675. Where a physician brings an action against the personal representatives of a deceased person, to recover for services rendered to deceased, it seems that he cannot, himself, prove the correctness of his books of account, or make any statement in regard to them against the representatives of the person deceased, Knight v. Cunnington, 6 Hun, 103, 104; nor can he be asked whether he treated the testator professionally within the six years next preceding his death. Ross V. Ross, id. 182. Where the payee of a promissory note brings an action upon it against testator's representatives, and as a defence thereto payment is pleaded, the plaintiff will not be permitted to prove that the note was not paid in the life-time of testator. Howell v. Van Siclen, 6 Hun, 115, 116; Alexander v. Dutcher, 7 id. 440. Under § 399, Code Pro., a party to an action cannot testify against the representatives of a deceased person (parties to the action), that he did not see, or did not have a personal transaction with such deceased person. Mulqueen v. Duffy, 6 Hun, 299. An action was brought against the defendants to recover the value of certain tools belonging to the plaintiff, but in possession of the defendants. One of the defendants died before the trial, and the action was continued against the survivor. Held, that the plaintiffs could not prove by her assignor that he had demanded the tools of the deceased in his life-time, and had been refused the same. Conway V. Moulton, 6 Hun, 651. The testimony of one who is next of kin, and interested in the event of an action, although not a party thereto, as to conversations with the defendant's intestate, whether it be favorable to or against his interest, is inadmissible under § 399 of Code Pro. Le Stewart, 8 Hun, 127. Clare V. Where the intent with which an act is done becomes the subject of legal inquiry, it is then, it seems, a part of the act, and a party to the action cannot testify as to the intent, in an action between him and the representatives of the other party to such transaction. Tooley v. Bacon, 8 Hun, 177. "Y., the defendant's president, purchased certain shares of Gregory mining stock through B., one of the defendant's clerks, to whom a loan for its price was made by the defendant, and the stock taken as collateral. Subsequently B. loaned to Y. 410 shares of Mariposa stock to enable him to meet the examination of the affairs of the bank by the board of directors. Y. delivered both the Gregory and Mariposa shares to the bank as collateral to the loan to B., and the same were subsequently retained by the defendant. In this action, brought to recover the Mariposa shares, on the ground that they belonged to the plaintiff's testator, and had been placed by him in B.'s hands, B. was allowed to testify against the defendant. Held, that this was error under § 399 of Code Pro., and that B. was interested in the action, as a judgment against the defendant would relieve him from liability for converting the plaintiff's testator's stock, and that the defendant was an assignee of Y." Andrews v. The Nat. Bank of North America of New-York, 7 Hun, 20. One of the parties to an action cannot be permitted to testify that another party, then deceased, had signed a pleading in his presence. Denman v. Jayne, 16 Abb. Ñ. S. 317, 320. See Spicer v. Spicer, id. 112. husband party, etc. § 830. The husband or wife of a party or person interested, who Id.; cannot be examined concerning a transaction or communication, as or wife of prescribed in the last section, cannot be examined as a witness, concerning the same transaction or communication; or a like transaction or communication, between the witness and the deceased person or lunatic. Entirely new. husband § 831. [Amended, 1877.] A husband or a wife is not competent when to testify against the other, upon the trial of an action, or the hear- and wife ing, upon the merits, of a special proceeding, founded upon an alle- petent gation of adultery; except to prove the marriage. A husband or Id.; when not comwitnesses. |