11. Examining witnesses conditionally. Formerly, after an indictment had been found, the defendant McColl v. Sun Mut. Ins. Co., 50 N. Y., 332; 2 J. & Sp., 310. New commissions for examination of same witnesses may issue. Fisher v. l'ale, 17 Johns., 343; Raney v. Weed, 1 Barb., 220; or may be ordered reexecuted. Baker v. Spencer, 47 N. Y., 562. commission Commission, defined.]—A is a process issued under the seal of the court, and the signature of the clerk, directed to one or more persons, designated as commissioners, authorizing them to examine the witness upon oath, on interrogatories annexed thereto, and to take and return the deposition of the witness, according to the directions given, with the commission. (§ 638.) Affidavit for.]—The application must be made upon affidavit, showing: 1. The nature of the crime charged; 2. The state of the proceedings in the action, and that issue of fact has been joined therein; 3. The name of the witness, and that his testimony is material to the defense of the action; 4. That the witness resides out of the state. (§ 639.) If during term, to be made to the court.]-The application, if made during the term, must be made to the court. (§ 640.) follows: If not made during the term, the application may be made as 1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions, except in the city and county of New York, to a judge of the supreme court or to the county judge; 2. When the indictment is pending in the court of general sessions in the city and county of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas, of that city; 3. When the indictment is pending in a city court, to the recorder or judge of the court in which it is pending. (§ 641.) Notice of application, when required and how given.]— If the application be made to the court, it may be without notice to the district attorney, unless the court direct notice to be given, in which case it must prescribe the manner of giving the same. If made to one of the officers mentioned in the last section, the application must be upon five days' notice to the district attorney, served with a copy of the affidavit upon which it is founded. (§ 642, as amended in 1882.) Order for commission, when granted.]-If the court or officer to whom the application is made, be satisfied that the witness. resides out of the state, and that his examination is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and that the people be permitted to join in the might have witnesses examined in his behalf, conditionally, on commission, and to examine witnesses in support of the indictment. (§ 643.) Naming of commissioners. Harris v. Wilson, 2 Wend., 627; Townsend v. N. Y. Ins. Co., 1 Cai., 4. Who may act as such, Lewis v. Van Loon, 3 Cai., 105. Exhibits. Butler v. Lee, 32 Barb., 75. Trial to be stayed until execution and return of commission.]-If the application for a commission be granted, the court or judge must insert in the order therefor, a direction that the trial of the indictment be stayed for a specified time, reasonably sufficient for the execution and return of the commission. (§ 644.) When stay should be vacated. Vors v. Fielden, 2 Sandf., 690. Interrogatories, and notice of settlement.]-When the comcommission is ordered, the defendant must serve upon the district attorney, and the district attorney, if he intend to join in the commission and examine witnesses in support of the indictment, must serve upon the defendant or his counsel, a copy of the interrogatories to be annexed thereto, with a notice of two days of their settlement, before an officer who might have granted the order out of term, as provided in section 641. (§ 645.) Cross-interrogatories, and notice of settlement.]-The district attorney, and the defendant, may, in the same manner, serve crossinterrogatories, to be annexed to the commission, with the like notice of the settlement thereof. (§ 646.) Questions.]-In the interrogatories, either party may insert any question pertinent to the issue. (§ 647.) See McDonald v. Garrison, 2 Hilt., 510; Blaisdell v. Raymond, 9 Aoo. Pr., 178, n. Upon the settlement of the interrogatories, the judge must expunge every question not pertinent to the issue, and modify the questions, so as to conform them to the rules of evidence, and when settled, must indorse upon them his allowance, and annex them to the commission. (§ 648.) Direction as to return of commission.] - Unless the parties otherwise consent, by an indorsement upon the commission, the officer must indorse thereon a direction, as to the manner in which it must be returned; and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the indictment is pending, designating his name and the place where his office is kept. (§ 649.) Unless returned as directed, it can not be read. Richardson v. Gere, 21 Commission, how executed.]-The commissioners, or any one of them, unless otherwise specially directed, may execute the commission as follows: [ *360] the order of a judge, in the same cases, upon the like 1. They must publicly administer an oath to the witness, that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth. 2. They must cause the examination of the witness to be reduced to writing; 3. They must write the answers of the witness, as nearly as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it, until it is made conformaable to what he declares is the truth; 4. If the witness decline answering a question, that fact, with the reason for which he declines answering it, as he gives it, must be stated; 5. If papers or documents are produced before them, and proved by the witness, they must be annexed to his deposition, and be subscribed by the witness, and certified by the commissioners; 6. The comissioners must subscribe their names to each sheet of the deposition, and annex the deposition, with the papers or documents proved by the witness, to the commission, and must close it up under seal, and address it, as directed thereon. 7. If there be a direction on the commission, to return it by mail, the commissioners must immediately deposit it in the nearest post-office. If any other direction be made, by the written consent of the parties, or by the officer, on the commission, as to its return, they must comply with the direction. (§ 650.) Sub. 1. When witnesses may be sworn by local authorities. Lincoln v. Batelle, 6 Wend., 475. Sub. 3. When foreign language may be used. Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 518. Sub. 4. Refusal to answer material cross-interrogatory, ground for rejecting entire deposition. Smith v. Griffith, 3 Hill, 333. Answer though not full, if not clearly evasive, sufficient. See Baker v. Spencer, 47 N. Y., 562; Terry v. McNeil, 58 Barb., 241. Sub. 5. Annexing exhibits. Howard v. Orient Ins. Co., 9 Bos., 645; Woodruff v. Shepherd, 6 Cow., 444. Exhibits, how identified. Brumskill v. James, 11 N. Y., 294. Sub. 7. It is no objection that depositions were not immediately_mailed. Halleran v. Field, 23 Wend., 38; see Pendell v. Coon, 20 N. Y., 134. Annexing copy of section 650.]—A copy of section 650 must be annexed to the commission. (§ 651.) Commission, how returned, when delivered to agent for that purpose.]-If the commission and return be delivered by the commissioners to an agent, he must deliver it to the clerk to whom it is directed, or to a judge of the court in which the indictment is pending, by whom it may be received and opened, upon the affidavit of the agent, that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it. (§ 652.) Affidavit of agent is indispensable. Dwinelle v. Howland, 1 Ab. Pr., 87. If the agent be dead, or from sickness or other casualty, unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent, that the agent is dead, or from sickness or other casualty, unable to notice to the district attorney, and with the like effect in all respects as in civil suits. (p) By the existing practice, such an examination may be had either before or after indictment, after a defendant has been held to answer a charge of crime. (18) (p) 2 R. S., 731, § 75. deliver it, that it has not been opened or altered since the person making the affidavit received it, and that he believes it has not been opened or altered since it came from the hands of the commissioners. (§ 653.) When and how filed.]-The clerk or judge receiving and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending. (§ 654.) Commission returned by mail, how disposed of.]-If the commission and return be transmitted by mail, the clerk to whom it is addressed must open and file it in his office, where it must remain, unless the court otherwise direct. (§ 655.) Deposition can not be read until actually filed. Parker v. Hobby, 20 Johns., 357; Oneida, etc., Society v. Lawrence, 4 Cow., 440. Commission and return to be open for inspection, and copies to be furnished.]-The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same, or of any part thereof, on payment of his fees, at the rate of five cents for every hundred words. (§ 656.) Deposition to be read in evidence. What objections may be taken thereto.]-The deposition, taken under the commission, may be read in evidence by either party on the trial, and the same objections may be taken to a question in the interrogatories, or to an answer in the deposition, as if the witness had been examined orally in court. (§ 657.) Mere formal defects are to be disregarded. Rust v. Eckler, 41 N. Y., 488; Goodyear v. Vosburgh, 41 How. Pr., 421; Hall v. Barton, 25 Barb., 274; McCleary v. Edwards, 27 ib., 239. Informal parts may be excluded. Commercial Bank v. Union Bank, 11 N. Y., 203. Objections must specifically point out errors. Dalton v. National, etc., Society, 20 N. Y., 32. When answers will be excluded. See Lansing v. Coley, 13 Abb. Pr., 272; Railway, etc., Co. v. Warner, 1 S. C., 21, add; Fassin v. Hubbard, 55 N. Y., 465. Heineman v. Hurd, 2 Hun, 324; Meyer v. Levy, 54 How. Pr., 274. Deposition may be read though witness present, but other side may call and examine him. Phenix v. Baldwin, 14 Wend., 62. If answers to direct interrogatory be excluded, those to cross id. dependent thereon must also be. Fleming v. Hollenbeck, 7 Barb., 271. Discretionary power of court upon objections. Cope v. Sibley, 12 Barb., 521; Hazlewood v. Heminway, 3 S. C., 787. (18) EXAMINATION OF WITNESSES CONDITIONALLY. The Code of Criminal Procedure directs as follows: Witnesses to be examined conditionally, for the defendant.]— When a defendant has been held to answer a charge of a crime, he may, either before or after indictment, have witnesses examined conditionally on his behalf, as prescribed in this chapter, and not otherwise. (§ 620.) In what cases defendant may apply for order.]—When a material witness for the defendant is about to leave the state, or is so sick or infirm, as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. (§ 621.) Foreign witness, temporarily present, may be so examined. Wait v. Whitney, 7 Cow., 69. Application, on what facts to be founded.]—The application must be made upon affidavit, showing: 1. The nature of the crime charged; 2. The state of the proceedings in the action; 3. The name and residence of the witness, and that his testimony is material to the defense of the action; and, 4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial. (§ 622.) If during term, to be made to the court.]—The application, if made during the term, must be made to the court. (§ 623.) If not made during term, it may be made as follows: 1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions other than in the city of New York, to a judge of the supreme court, or to the county judge. 2. When the indictment is pending in the court of general sessions of the city of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas of that city. 3. When the indictment is pending in a city court, to the recorder or city judge of the city in which it is pending. (§ 624.) The order, when granted and what to contain.]-If the court or officer be satisfied, that the examination of the witness is necessary to the attainment of justice, an order must be made, that the witness be examined conditionally, at a specified time and place, and that a copy of the order, and of the affidavit on which it was granted, be served on the district attorney, within a specified time before that fixed for the examination. (§ 625.) If the order be made by the court, it may direct that the examination be taken before a judge thereof, or before a magistrate in the county, to be named in the order. If made by any of the officers mentioned in section 624, it must direct the examination to be taken before him. (§ 626.) On proof of service, examination to proceed.]-On proof being furnished to the officer before whom the examination is appointed, of the service upon the district attorney, of a copy of the order, and |