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TITLE 4. SEC. 2976. Minute of conviction,
2977. Execution thereupon.
2978. Money collected; how applied.
2979. Defaulting witness liable for damages.
§ 2969. A justice of the peace may issue a subpoena, to compel a may issue witness to attend, in the county where the justice resides, or in an
Subpœna; how served.
Warrant of attach
adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpœna may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpœna to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice.
[2 R. S., 240, Part 3, ch. 2, tit. 4, §§ 80 and 81 (3 R. S., 5th ed., 439; 2 Edm., 257), amended by the addition of the second sentence, to supply an apparent oversight in the existing statute. The qualification refers to § 867.](*)
§ 2970. A subpoena may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying or tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated. [Id., § 82, amended by adding the last sentence.]
§ 2971. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to defaulting attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the witness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness. [ld., § 83, as amended by L. 1834, ch. 235 (4 Edm., 544), further amended by confining the proof of the materiality of the witness, to
the oath of the party or his attorney; and by prescribing the form of the direction of the attachment. See Rutherford v. Holmes, 66 N. Y., 368.]
§ 2972. Such a warrant of attachment must be executed in the Id how same manner as an order of arrest. The fees of the justice and con- fees therestable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the justice, for his omission to attend; in which case, the party procuring the warrant must pay them, and, if he recovers costs, the amount thereof must be allowed to him as part of his costs. [Id., § 84, amended by adding the last clause, commencing with the words, and, if he recovers costs."]
§ 2973. Where the delinquent witness is within an adjoining Id.; when county, the constable, to whom the warrant of attachment is directed, in adjoinmay arrest the witness in that county, and bring him before the justice. The constable, while he is within the adjoining county for that purpose, has all the powers of a constable of that county, with respect to the warrant so issued to him.
[New. Under the former statutes the case was wholly unprovided for; and as a commission could not be issued to an adjoining county, and the justice could not send the attachment to a constable of that county, there was apparently, until the enactment of this section, no means of compelling the testimony of an unwilling witness residing therein.]
§ 2974. A person, duly subpoenaed as a witness, who, without reasonable excuse, proved by his oath or the oath of another person, fails to attend; or, attending, refuses to testify; must be fined, by the justice before whom the action is pending, for each non-attendance or refusal, such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him, as a fine therefor.
[Section 85 of the R. S., amended by substituting, "must be fined", for "shall forfeit for the use of the poor of the town", see § 2978, post; and, "one dollar ", for, "sixty-two cents;" and, "the action is pending ", for, "before whom prosecution therefor shall be had." The latter clause has given rise to considerable confusion; as it leaves room for an implication, that a separate suit may be brought to recover the fine. A similar expression, out of which a like confusion has arisen, is to be found in § 112 of the same title of the R. S., the
Id.; how imposed.
Minute of conviction.
proceedings under which are assimilated to those under § 85 and its associates. See post, § 3009. The whole question was elaborately argued in Robbins v. Gorham, 26 Barb., 586; S. C., on appeal, 25 N. Y., 588; wherein both courts came to the conclusion, upon collating §§ 85 and 112 with §§ 86-88, that no such action would lie. The decision is undoubtedly correct; and the confusion would have been avoided, if either the court or the counsel had taken the pains to ascertain the origin of this expression. The statute, as originally reported by the revisers, contained a section, the first sentence of which was enacted as § 86 of the R. S. (post, § 2975); but a second sentence provided that, if the witness was not present, a summons should be issued against him, in the name of the overseer of the poor, upon which the matter should be determined, etc. The second sentence was stricken out by the legislature, although the proceeding therein provided for was in accordance with the act of 1824, from which the article of the R. S. was framed. It is therefore evident that the expression, which has been changed in this section, was left in § 85 of the R. S., and also in § 112, merely through inadvertence.]
§ 2975. The fine may be summarily imposed by the justice, upon the application of the party in whose behalf the witness was subpoenaed, at any time during the trial, when the defaulting witness is present, and has an opportunity to be heard. If it is not imposed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant, directed generally to any constable of the county, commanding him to arrest the defaulting witness, and to bring him before the justice, at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him.
[Substituted for id., § 86, which read as follows:
Such fine may be imposed by the justice, if the witness be present, and having an opportunity of being heard against the imposition thereof."
The history of this section is given in the note to the last section. It was held, in Robbins v. Gorham, 25 N. Y., 588, that, under the former statute, the justice might issue a warrant to bring a defaulting juror (witness) before him, after the termination of the action. This section will, it is believed, clear up the obscurity, which has heretofore surrounded the whole subject.]
§ 2976. The justice imposing the fine must enter in his docketbook a minute of the conviction, of the cause thereof, of the amount of the fine, and of the costs. The 'minute is deemed a judgment against the delinquent, in favor of the officer to whom fines are directed to be paid, by section 2875 of this act.
[Id., § 87, amended by requiring the amount of the fine to be stated; and by substituting the final clause for, "the overseers of the poor of the town."]
§ 2977. If the whole amount of the fine and costs is not forth Execution with paid to the justice, he must issue an execution, directed generally to any constable of the county, commanding the constable to col lect the sum remaining unpaid, of the goods and chattels of the delinquent, within the county, and, for want thereof, to take him, and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution.
[Id., § 88.]
§ 2978. The money collected by virtue of the execution must be Money forthwith paid by the constable to the justice. The justice must, within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the officer, to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor.
[Id., § 89, amended by inserting "forthwith"; by specifying the time of payment; extending the provision to money paid by the delinquent to the justice; and substituting the officers named for the overseers of the poor. See note to § 2875, ante. ]
§ 2979. A person, subpoenaed as prescribed in this article, who Defaulting neglects or refuses to obey the subpoena, or to testify, is also liable to the party, in whose behalf he was subpoenaed, for all damages which the party sustains by reason of his neglect or refusal.
[Id., § 90, substituting the words, "obey the subpoena," for "appear," so as to include a refusal to produce papers, etc., as required by a subpoena duces tecum. See § 2969, ante.]
COMMISSION TO TAKE TESTIMONY.
SEC. 2980. Commission to examine witness upon interrogatories.
2981. Id.; orally.
2982. When and how granted.
SEC. 2983. Adjournment.
2984. Execution and return of commission.
2985. Receipt thereof by justice.
§ 2980. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where terrogato- an issue of fact has been joined in an action; and it appears, by
sion to examine witness upon in
When and how granted.
affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice.
[L. 1838, ch. 243, § 2, and the amendment added to § 3 by L. 1847, ch. 329 (3 R. S., 5th ed., 456; 4 Edm., 640); amended by substituting the words, "by mail addressed to the justice," for "according to the directions given with such commission." It is well known that the courts are very strict and technical, with respect to the return of a commission; and it was held, in Smith v. Randall, 3 Hill, 495, that the rules upon this subject are the same in a justice's court, as in a court of record. The case itself presents an instance of the sacrifice of substance to form. The amendment sweeps away this one fruitful source of embarrassment.]
§ 2981. If both parties expressly consent, a commission, granted as prescribed in this article, may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given.(*)
[New. Prepared for the purpose of adapting to a justice's court, as far as it was deemed judicious and convenient, the provisions of this Code, allowing a commission to issue from a court of record to examine witnesses orally.]
§ 2982. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of