sum less than five thousand dollars; and when two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more than one of them. It shall be lawful for any party of whom a bond or undertaking is required to agree with his sureties for the deposit of any or all moneys for which such sureties are or may be held responsible with a trust company authorized by law to receive deposits, if such deposit is otherwise proper, and for the safe-keeping of any or all other depositable assets for which such sureties may be held responsible, with a safe-deposit company authorized by law to do business as such, in such a manner as to prevent the withdrawal of such moneys and assets, or any part thereof, except with the written consent of such sureties, or an order of the court made on such notice to them, as it may direct. § 814. Where a bond or undertaking has been given, as prescribed by law, in the course of an action. or special proceeding, to the people or to a public officer, for the benefit of a party or other person interested, and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; or by a superior city court, the marine court of the city of New York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds. § 815. A bond or undertaking, given in an action or special pro ceeding, as prescribed in this act continues in force, after the substi tution of a new party in place on an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties. § 816. A bond or undertaking, required to be given by this act must be filed with the clerk of the court; except where, in a specia case, a different disposition thereof is directed by the court, or pre scribed in this act. 8817. Where two or more actions, in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them, into one action. § 818. Where one of the actions is pending in the supreme court, and another is pending in another court, the supreme court may, by order, remove to itself the action in the other court, and consolidate it with that in the supreme court. § 819. Where separate actions are commenced against two or more joint and several debtors, in the same court, and for the same cause of action, the plaintiff may, in any stage of the proceedings, consolidate them into one action. § 820. [am'd 1877.] A defendant, against whom an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel, is pending, may, at any time before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering possession of the property, or its value, to such person as the court directs; or upon it appearing that the defendant disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action. The conrt may, in its discretion, make such order, upon such terms as to costs and payments into court of the amount of the debt, or part thereof, or delivery of the possession of the property, or its value or part thereof, as may be just, and thereupon the entire controversy may be determined in the action. § 821. [am'd 1877.] Where, in an action against two or more defend ants, the plaintiff unreasonably neglects to serve the summons upon on or more of them, without whose presence a complete determination of th controversy cannot be had, the court may, in its discretion, upon the applica tion of a defendant who has appeared in the action, dismiss the complain as against him, and render judgment accordingly. § 822. [am'd 1879.] Where the plaintiff unreasonably neglects to pro ceed in the action against the defendant, or one or more defendants agains whom a separate judgment may be taken, the court may in its discretion upon the application of the defendant or defendants, or any of them, agains whom he so neglects to proceed, dismiss the complaint as against the mov ing party or parties, and render judgment accordingly. § 823. Feigned issues have been abolished. In a case where neithe party can, as of right, require a trial by jury of an issue of fact arisin upon the pleadings, or where a question of fact, not in issue upon th pleadings, is to be tried, an order for the trial thereof by a jury may h made, stating, distinctly and plainly, the questions of fact to be tried. Suc an order is the only authority necessary for the trial. § 824. The summons, and each pleading in an action, must be filed wit the clerk, by the party in whose behalf it is served, within ten days afte the service thereof. If the party fails so to file it, the adverse party, o proof of the failure, is entitled, without notice, to an order from a judge that it be filed within a time specified in the order, or to be deemed aban doned. § 825. A return or other paper in a special proceeding, where no othe disposition thereof is prescribed by law, must be filed, and an order therei must be entered, with the clerk of the county in which the special proceed ing is taken, if it is before a county officer, or a judge of a court establishe in a city; if before a justice of the supreme court, with the clerk of county designated by the justice; or, if no designation is made by him, e a county where one of the parties resides. § 826. [am'd 1877.] Where a notice, or other proceeding, is required b law to be published in a newspaper published in a county, and no new paper is published therein, or to be published oftener than any newspaper i regularly published therein, the publication may be made in a newspaper o an adjoining county, except where special provision is otherwise made b law. § 827. [am'd 1877.] Where a provision of this act authorizes the cour to approve an undertaking or the sureties thereto; or to make an examina tion or inquiry, or to appoint an appraiser, receiver, or trustee; it ma direct a reference to one or more persons designated in the order, either t make the approval, examination, inquiry or appointment, or to report th facts to the court, for its action thereupon. And where, according to th practice of the court of chancery, on the thirty-first day of December, eigh teen hundred and forty-six, a matter was referable to the clerk, or to master in chancery, a court having authority to act thereupon, may direct reference to one or more persons, designated in the order, with the power which were possessed by the clerk, or the master in chancery, except wher it is otherwise specially prescribed by law. CHAPTER IX. EVIDENCE. TITLE I-GENERAL REGULATIONS RESPECTING EVIDENCE, AND THE COMPA TITLE II.-COMPELLING THE ATTENDANCE AND TESTIMONY OF WITNESS TITLE III-DEPOSITIONS. TITLE IV.-DOCUMENTARY EVIDENCE. TITLE V.-MISCELLANEOUS PROVISIONS. TITLE I. General regulations respecting evidence, and the competency and mode of ARTICLE 1. Competency of a witness; evidence in particular cases. ARTICLE FIRST. COMPETENCY OF A WITNESS; EVIDENCE IN PARTICULAR CASES. 28. No witness to be excluded by reason of interest, etc. 829. When party, etc., cannot be ex amined. 830. Id.; husband or wife of party, etc. 831. When husband and wife not competent witnesses. 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 836. Application of the last three sec tions. 837. When witness not excused from 838. Evidence of party may be re- 839. Admission by member of corporation. 830. Seal, presumptive evidence of consideration. 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, by reason of his or her interest in the event of an action or special proceeding; or because be or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. § 829. [am'd 1877 & 1881.] Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a 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 luna tic, 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. A person shall not be deemed interested for the purposes of this section by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. $830. [am'd 1879.] Where a party has died since the trial of an action on the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provision of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. § 830. [added 1893.] The testimony of any witness who has died or become insane after a former trial or hearing of a contested proceeding, a special proceeding or an action, may be read upon a subsequent trial or hearing, by any party to such action or proceeding, subject to legal objection. 831. Lamd 1877, 1879, 1880, 1887.] A husband or wife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. A husband or wife shall not be compelled, or without the consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. § 832. [am'd 1879.] A person, who nas been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding: but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question. § 833. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. § 834. A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity. § 835. An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment. § 836 [am'd 1877, 1891, 1892, 1893]. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is diseased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir-at-law or any of the next of kin, of such deceased or any other party in interest. But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution |