No. 381.
Mr. Bayard
to Mr. McLane.
Department
of State,
Washington, April 27,
1888.
No. 330.]
Sir: Referring to your dispatch, No. 549, of
February last, communicating to this Department the request of the French
authorities for information (in connection with the case of Lefevre Bougon
against Anthony J. Drexel et al.) as to whether
letters rogatory, issued by the French courts, can be duly executed in this
country, and referring also to the reply of the Department, No. 303, of the
6th ultimo, to your above-mentioned dispatch, I now inclose herewith for
communication to the French Government extracts from the New York code of
civil procedure, giving its provisions relative to taking the testimony of
witnesses in suits pending in foreign countries. From which it will be seen
that the courts in the State of New York have the most ample ability to
reciprocate in the matter in question.
I am, etc.,
[Inclosure in No. 330.]
New York code of civil procedure.
[Chapter 9, article 3.—Depositions taken within the State
for use without the State.]
- Sec 914. In what cases deposition may be
taken. A party to an action, suit, or special proceeding, civil or
criminal, pending in a court without the State, either in the United
States or in a foreign country, may obtain in the manner prescribed
in this article the testimony of a witness within the State, to be
used in the action, suit, or special proceeding.
- Sec. 915. Subpoena to witness. Where a
commission to take testimony within the State has been issued from
the court in which the action, suit, or special proceeding is
pending, or where a notice has been given, or any other proceeding
has been taken for the purpose of taking the testimony within the
State, pursuant to the laws of the State or country wherein the
court is located, or pursuant to the laws of the United States if it
is a court of the United States, the commission, notice, or other
paper authorizing the testimony to be taken may be presented in
behalf of the party desiring to obtain it to a justice of the
Supreme Court or a county judge, with proof by affidavit that the
testimony of the witness is material to the party. The judge must
thereupon issue a subpoena to the witness commanding him to appear
before the commissioner named in the commission, or before a
commissioner within the State for the State, Territory, or foreign
country in which the notice was given or the proceeding taken, or
before the officer designated in the commission, notice, or other
paper by his title of office, at a time and place specified in the
subpoena, to testify in the action, suit, or special
proceeding.
- Sec. 916. Contents of subpæena. The
place where the witness is commanded to attend must be within the
county in which he resides or sojourns, or, if it is in another
county, not more than 40 miles distant from his residence or the
place of his sojourn.
- Sec. 917. Subpoena where no commission
is issued. (Amended 1877.) Where an action, suit, or special
proceeding is pending in a court of another State, or of a
Territory, or of the United States, and proof is made by affidavit
to the satisfaction of a justice of the supreme court or a county
judge, as follows:
- I.
- That a person residing or sojourning within the State is a
material witness for either party.
- II.
- That a, commission to take the testimony of the witness
has not been issued.
- III.
- That, according to the course and practice of the court in
which the action, suit, or special proceeding is pending,
the deposition of a witness, taken as the one applied for is
required to be taken, is authorized to be received in
evidence on the trial or hearing.
The judge must issue a subpoena commanding the witness to appear before
him, at a specified time, and at a place within the county in which the
witness resides ro sojourns, to testify in the action, suit, or special
proceeding.
