18 How. Pr. 249 | New York Court of Common Pleas | 1859
The statute declares that the
The statute makes no provision as to the mode in which the deposition is to be taken, other than that it is to be taken by the officer, carefully read to the witness, subscribed by him, and certified by the officer taking the same. In no other respect does it enact how he shall take it, and reference must therefore be had to the practice which prevailed before the statute was passed, to ascertain the mode that was then in use; for if, in this'respect, the statute is silent, the practice which existed when the statute was enacted continues in force.
In Wyche's Practice, 144, the first book that appeared in this State (1794) upon the practice of the Supreme Court, there is a section devoted to the course of procedure upon the examination of witnesses about to go abroad, in which the passage occurs : “ At the time appointed take the witnesses to the judge,
To the requirements of the former practice in the State, the statute added that the deposition should be carefully read to the witness, and the judge must certify that that has been done.
The words of the present statute are, that the judge shall proceed to the examination of the witness, and shall take his •deposition, in which deposition shall be inserted any answer or declaration of such witness which either of the parties shall require to be included therein. I do not understand the words, “ shall take the deposition,” as changing the former practice to the extent of requiring the judge actually to write down the •deposition himself. He may take the deposition, in the sense of
To require the judge to write down the deposition would be, in many instances, to render the statute practically inopérative. Frequently a party has very short notice of the intended departure of a witness, sometimes but a day, sometimes but a very few hours, and unless the examination can be completed within a limited time, it may involve the loss of the testimony of the witness, who may be away before the compulsory power with which the officer is clothed can be resorted to or made effectual to .detain him. It is not unusual in this court for three-of those examinations to be going on at the same time, which could not be done if the judge had to write down each deposition, unless the three judges of the court stopped the cases on trial or argument, in which they might be engaged, to attend exclusively to this business; or unless the witnesses attending for examination waited until the judge holding chambers found time to write down each deposition, which in the case of an examination like this, extending over several days, would be to-the neglect or putting off, to the serious inconvenience of a great body of suitors, of the large amount of chamber and special-term business which comes up for disposition every day before the single judge who attends to this branch of the business of this court.
¡No object would be accomplished by the judge writing down the testimony. If the judge is to read it over to the witness, then it matters not in whose handwriting it is. It is the aim of the statute, that, nothing shall be inserted except what the witness means and intends to swear to; and that end is fully attained if the judge reads over the deposition to the witness, who-then knows, before he subscribes, whether his answers have been correctly taken down or not, and an opportunity is offered to make any correction before the judge finally certifies it as the-deposition of the witness taken by him.
The order should be affirmed.
Present, Halt, F. J., and Bract and Hilton, JJ.