This is an appeal from an order made at the Special Term iir Albion, suppressing a deposition of the plaintiff for certain alleged informalities. The alleged informalities are that the deposition was not reduced to writing by Justice Larramore, or read over to tbe witness in bis presence, and no sufficient certifícate of tbe taking thereof is attached to tbe same. Tbe deposition was produced on tbe bearing of tbe motion, and shows tbe examination of tbe witness both direct and cross, taken by question and answer, and commences with tbe recital, “ examination of plaintiff taken conditionally, pursuant to tbe annexed order.” It purports to be signed by tbe witness and to it is attached tbe ordinary jurat to an affidavit, “ sworn before me tbis 30th day of October, 1876, R. L. Larramore, J. C. P.”.
Tbe statute provides that “such deposition shall be carefully read to and subscribed by such witness; shall be certified by tbe officer taking tbe same.” (2 R. S. [2d ed.], 313, § 6.) Tbe statute does not prescribe tbe form of tbe certificate. Tbe certificate in tbis instance, taking it altogether, is a certificate that tbe examination was taken conditionally pursuant to tbe annexed order, and was sworn to before tbe justice who was at tbe time specified, sitting in tbe chambers of tbe Supreme Court at New York, and tbe examination commences with a recital to tbe effect that tbe witness was duly sworn. Tbe order annexed prescribes no form for tbe examination or for its verification.
In McDonald v. Garrison (18 How. P. R., 219) tbis subject received an elaborate examination by Mr. Justice J. F. Daly, of tbe New York Common Pleas. In tbe opinion in that case be comes to tbe conclusion that tbe examination of a witness need not be reduced to writing by tbe band of tbe judge before whom it is taken, but be may employ an amanuensis, but that tbe officer who takes tbe examination must see that tbe testimony is carefully read over to tbe witness, and that tbe witness subscribes tbe same with a full understanding of its contents. Though tbe statute does not provide what tbe certificate of tbe officer shall contain, it states that it shall *203be carefully read over to tbe witness and subscribed by him, and be certified by tbe officer taking tbe same. What is to be certified by the officer taking the same ? Obviously, as it seems to us, the fact that the examination has been read to, and is subscribed by, the witness.
The certificate in this case does not purport to be to the effect that the witness in fact “ subscribed ” the deposition, or that it was read over to him before doing so, and from the account given in the affidavit of the plaintiff’s attorney of the manner in which this deposition was taken, in accordance, as he says, with the usual practice in such cases in New York, it is apparent that the deposition was not read over to the witness in the presence of Judge Larramore, or subscribed in his presence, so that he could not certify to either fact. Perhaps the judge would not be required to see to the reading of the deposition in detail, with a view to be able to testify that it was in all respects correctly read, but the reading should at least be under his general supervision, and the deposition should be subscribed in his presence.
The counsel for the plaintiff insists that the certificate can now be amended, and that the order of the Special Term should have granted leave to amend, but the affidavit of the plaintiff’s attorney shows that the certificate cannot be truly amended so as to show that the deposition was read over to the witness, or that it was subscribed in the presence of the judge.
Order appealed from, suppressing the deposition of the plaintiff, affirmed with ten dollars costs of the appeal and disbursements.
Present — Talcott, P. J., Smith and Merwin, JJ.Ordered accordingly.