from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife(1) of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended.

Co. Proc., 398; and L. 1867, ch. 887, 1. (1) Matteson v. N. Y. C. R. R. Co., 62 Barb. 364; Birdsall v. Patteson, 51 N. Y. 43; Southwick v. Southwick, 49 id. 510; Taylor v. Jennings, 7 Rob. 581; Wehrkamp v. Willett, 1 Keyes, 250; Southwick v. Southwick, 1 Sweeny, 47; 49 N. Y. 510; and 9 Abb. Pr. N. S. 109; Minier v. Minier, 4 Lans. 421; Dennis v. Crittenden, 42 N. Y. 542.

$829. [Amended, 1881.] When party, etc., cannot be examined. 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 lunatic, 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 deened 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.

Substitute for Co. Proc., 399. Bennett v. Austen, 5 Hun, 536: Mulqueen v. Duffy, 6 id. 299; Jacques v. Elmore, 7 id. 675; Tooley v. Bacon, 8 d. 176; Brague v. Lord (Ct. App.), 15 Alb. L. J. 66. See, also, Mattoon Young, 45 N. Y. 696: Buck v. Stanton, 51 id.624; Cary v. White, 59 id. 336;

Grant, 47 id. 278; Smith v. Hazard, 4 Hun, 418; Denham v. Jayne, 616; Parhan v. Moran, 4 Hun, 717; Hatch v. Peugnet, 64 Barb. 189; nd v. Sanford, 61 id. 293; Card v. Card, 7 Trans. App. 147; Angevine evine, 48 Barb. 417; Timon v. Claffy, 45 id. 138; Williston v. Wild. 635; Van Alstyne v. Van Alstyne, 28 N. Y. 378; Simmons v. 25 id. 264; Hight v. Sackett, 34 1d. 447; Schenck v. Warner, 37 8: Wildey v. Whitney, 25 How. 75; Penny v. Black, 6 Bosw. 50. d. Teeter, 10 Hun, 548; Tilton 2. Ormsby. id. 7: Brague v. 2 Abb. N. 0.1 Somerville v. Crook, 9 Hun, 664: Hobart v. 62 N. Y. 80: Alexander v. Dutcher, 7'Hun, 439, affd. in Ct. of 16 Alb. L. J. 224; Andrews . Nat. Bk., 7 Hun, 20; Haughey v. , 12 id. 179; Cornell v. Cornell, id. 312; Le Clare v. Stewart, 8 id. Stiller v. Adkins, 9 id. 9; Brown v. Richards, 20 N. Y.472; Potter nell, 10 How. 94; Dewey v. Goodenough, 56 Barb. 54; Green v. 56 N. Y. 613. Rolorth of

§ 830. [Amended, 1879.] When party, etc., cannot be examined. When party has died. 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 provisions 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 testi. mony or any question put to him.

New.

831. [Amended, 1879, 1880, 1387.] When husband and wife not competent witnesses. When competent. A husband or a 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 consent of the other, if living, allowed, to disclose a confidential communication, made by one to the other, during marriage (1) 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. (2)

L. 1867, ch. 887, ?? 2 and 3 (7 Edm. 198), am'd. Hicks v. Bradner, 2 Abb. Ct. App. Dec, 362. (1) Southwick v. Southwick, 9 Abb. N. S. 109; s. c., 49 N. Y. 510. (2) s. c., 35 How. 118.

832. [Amended, 1879.] Conviction for crime not to exclude witness; how conviction proved. A person, who has 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, 2008.

$833. Clergymen, etc., not to disclose confessions. -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.

2 R. S. 406, 72, am'd. People v. Gates, 13 Wend. 311.

S834 Physicians not to disclose professional infor mation. 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 Lim to act in that capacity.

2 R. S. 406, 173. Edington v. Mut. L. Ins. Co.,5 Hun, 1; Sloan v. N. Y. C., etc., 45 N. Y. 125; Hunn r. Hunn, 1 T. & C. 499; People v. Sto it, 3 Park. Cr. 670; Johnson v. Johnson, 14 Wend. 637; Allen v. Public Adm'r, 1 Bradf. 221; Kendall v. Grey, 2 Hilt. 300: Hewit v. Prime, 21 Wend. 79: Sloan v. N. Y. C. R. R. Co., 45 N. Y. 125; Hunn v. Hunn, i N. Y. Sup. Ct. (T. & C.) 499.

835. Attorneys and counsellors not to disclose communications.-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.

New in form. Genet v. Ketchum, 62 N. Y. 626; Cary v. White, 59 1d. 336; Carnes v. Platt, 46 How. 520; s. c., 15 Abb. N. S. 337; Rogers v. Lyon, 64 Barb. 373; Mulford . Muller, 1 Keyes, 31; Whitney v. Barney, 35 Barb. 393; Whiting v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 td. 51; Yates v. Olmstead, 56 id. 632; Rochester City Bank v. Suydam, 5 How. 257; Graham v. People, 63 Barb. 468; Rogers v. Lyon, 64 id. 373; Sanford v. Sanford, 61 Barb. 293; Robinson v. Dauch, 3 id. 20; Little v. McKeon, 1 Sandf. 607: s. c., 6 N. Y. Leg. Obs. 238; Caniff e. Myers, 15 Johns. 246: Gaul . Groat, 1 Cow. 113; Tullock v. Cunningham, id. 256; Pixley v. Butts, 2 id. 421, Blatchley v. Moser, 15 Wend. 215.

836. [Amended, 1891.] Application of the last three sections. 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 deceased which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section 834 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. [In effect Sept. 1, 1891.

See Johnson v. Johnson. 4 Paige, 460; Hunn e. Hunn, 1 T. & C. 479; Matter of Coleman, 111 N. Y. 220; Alberti r. Railroad Co., 118 id. 77: Bartlett v. Bunn, 56 Hun, 507; Westovor e. Ins. Co. 99 N. Y. 56; Kenihan v. Dennin. 103 id. 573; 13 Abb. N. C. 101; McKinney v. Railroad Co., 104 N. Y. 352.

837. When witness not excused from testifying.A competent witness shall not be excused from answering a rele vant question, on the ground only that the answer may tend to establish the fact, that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor or to expose him to a penalty or forfeiture: nor does it vary any other rule, respecting the examination of a witness.(1)

2 R. S. 405, § 71 (2 Edm. 422). Henry 2. Salina Bank, 1 N. Y. 83, 86: 4 Johns. Ch. 432; 3 Paige, 533; 11 Wend. 329. (1) Rivenburgh e. Rivenburgh, 47 Barb. 425.

The

$838. Evidence of party may be rebutted. testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence.

Co. Proc., 2393. Pickard v. Collins, 23 Barb. 444; Parsons v. Suydam,

3 E. D. Smith, 276; Varona v. Socarras, 8 Abb. 302; Forward v. Harris, 30 Barb. 338; Boyd v. Colt, 20 How. 384; Armstrong v. Clark, 2 Code R. 143.

S839. Admission by member of corporation.—The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction, in which he was the authorized agent of the corporation.

2 R. S. 407, 280. East River B'k v. Hoyt, 41 Barb. 444.

$840. [Amended, 1877.] Seal, presumptive evidence of consideration.-A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed.

Substitute for 2 R. S. 406, 877. Calkins v. Long, 22 Barb. 99; Wright v. Douglass, 10 id. 97; Wilson v. Bap. Ed. Society, id. 312; Averill v. Loucks, 6 1 25; Tallmadge v. Wallis, 25 Wend. 113; Russell v. Rogers, 15 id. 353; Mann v. Eckford's Ex'rs, id. 519; Johnson v. Miln, 14 id. 499; McCurtie v. Stevens, 13 id. 529; Case v. Boughton, 11 id. 107; Conway v. Williams, 2 IIun, 642.

841. Amended, 1891.] Presumption of death in certain cases.- A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years together, is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. And where in any action of partition in this state any portion of the proceeds of the sale of real property is or has been paid into court, or paid to the treasurer of any county for any unknown heirs, and has remained unclaimed for twenty-five years, after such payment by any person entitled thereto, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs at the time of the sale of such real property and before such payment, and after the lapse of twenty-five years after such payment it shall be presumed that there were no such unknown heirs living at the time of such sale or payinent, and in any action or proceeding taken for the purpose of distributing and paying over such proceeds, all such unknown heirs are presumed and they shall be presumed to have been dead at the time of uch sale and before such payment into court, or to the treasurer of any county.

1 R. S. 749, 26, am'd. McCartee v. Camel, 1 Barb. Ch. 455; Gerry v. Post, 13 How. 120; Clarke v. Cummings, 5 Barb. 339; Clark v. Owens, 18 N. Y. 434.

ARTICLE SECOND.

ADMINISTRATION OF AN OATH OR AFFIRMATION.

SEC. 842. Before whom oaths and affidavits may be taken.

843. Id.; in special cases.

844. Id.; without the State.

845. General mode of swearing.

846. When kissing the gospels dispensed with.

847. When affirmation to be made.

848. Other modes of swearing.

849. Swearing persons not Christians.

850. Court may examine witness.

851. Swearing falsely in any form, perjury.

§ 842. Before whom oaths and affidavits may be taken.—An oath or affidavit, required or authorized by

law; except an oath to a juror or a witness upon a trial, an oath of office, and an oath required by law to be taken before a particular officer; may be taken before a judge, clerk, deputy-clerk, or special deputy clerk, of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the ditrict in which the officer is authorized to act; and, when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person.

2 B. S. 284, 49, am'd. Stanton v. Ellis, 16 Barb. 319; Florance v. But ler, 9 Abb. N. S. 63; Craig v. Briggs, 4 Paige, 548; Norton v. Colt, 3 Wend. 250; Whitney v. Warner, 2 Cow. 499; People v. Brooks, 1 Denío, 457: Wood v. Williams, 1 N. Y. Leg. Obs. 154; Mosher v. Heydrick, 30 How. 161; 1 Abb. N. S. 258; Jackson v. Humphrey, 1 Johns. 498; People v. Tioga C. P., 7 Wend. 516; Parker v. Baker, 8 Paige, 428; Craft . Merrill, 14 N. Y. 456.

-

$843. [Amended, 1877.] Id.; in special cases. Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony, or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath, for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.

Id. 552,11. Berrien v. Westervelt, 12 Wend. 195.

§ 844.* Id.; without the State. An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledg ment and proof of deeds, to be recorded in the State; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signa ture, as are required to entitle a deed acknowledged be fore him to be recorded within the State, may be used,