TITLE II. Trials without a jury. BEC. 1008. If trial by jury walved, action must be tried by the court. 1009. Trial by jury; how walved. 1010. Decision upon trial by the court, when to be filled; consequence of failure. 1011. Reference by consent; when and how made. 1012. Qualification of the last section. 1013. Compulsory reference for the trial of issues; in what cases it may be made. 1014. Proceedings where the reference is for trial of part of the issues. 1015. Compulsory reference upon questions incidentally arising. 1016. Referee to be sworn. 1017. Witnesses may be subpoenaed. 1018. General powers of a referee, upon a trial. 1019. Referee's report; when to be made; consequence of failure. 1020. Double or other increased damages. 1021. Decision of court or report of referee, upon trial of demurrer. 1022. Id.: upon trial of the whole issue of fact. 1023. Parties may require court or referee to determine particular questions. 1024. Qualifications of a referee. 1025. Several referees may be appointed. 1026. Proceedings regulated where there are several referees. - S1008. [Amended, 1877.] If trial by jury waived, action must be tried by the court. - In an action triable by a jury, if the parties waive the trial, by a jury, of the issue of fact, the action must be tried by the court, without a jury; unless a reference is directed, in a case prescribed by law.(1) But such an action, other than to recover damages for breach of a contract, cannot be tried by the court, without a jury, unless the judge, presiding at the term where it is brought on for trial, assents to such a trial.(2) His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section. (3) (1) Corresponds to Co. Proc., 253, 254. Black v. White, 37 N. Y. Supr. 320; Hutchins e. Smith, 63 Barb. 251; People v. Alb. & Susq. R'y Co., 57 N. Y. 161. (2) From Co. Proc., 266. (3) New. § 1009.* Trial by jury; how waived. A party may waive his right to the trial of the issue of fact, by a jury, in any of the following modes: 1. By failing to appear at the trial.(1) *Error in engrossing for, "issues." 2. By filing with the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury; or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial.(2) Co. Proc., remainder of 266, am'd. Fire Department v. Harrison, 2 Hilt. 453; Lewis r. Varnum, 12 Abb. 305; Moffat v. Mount, 17 id. 4; Greason . Keteltas, 17 N. Y. 493; McKeon v. See, 4 Rob. 450: Bradley v. Aldrich, 40 N. Y. 511. (1) Hendricks v. Carpenter, 4 Rob. 665. (2) Peopie e. Alb. & Susq. R'y Co., 57 N. Y. 161; Black . White, 37 N. Y. Supr. 320: Hutchins r. Smith, 63 Barb. 251; Gibberton v. Fleischel, see 5 Duer, 632, and Hendricks v. Carpenter, 4 Rob. 665. -- 1010. Decision upon trial by the court, when to be filed; consequence of failure. · Upon a trial, by the court, of an issue of fact or of law, its decision, in writing, must be filed, in the clerk's office, within twenty days after the final adjournment of the term, where the issue was tried.(1) If it is not so filed, either party may move, at a special term, for a new trial upon that ground. If the decision has not been filed, when the motion is heard, the court must make an order for a new trial, either absolutely, or unless it is filed, within a time specified in the order. If an order for a new trial is made, or a contingent order for a new trial becomes absolute, the costs of the former trial abide the event. Id., part of 267, am'd. (1) Burger v. Baker, 4 Abb. 11; Lewis v. Jones, 13 id. 427; Stewart v. Slater, 5 Duer, 84; People v. Dodge, 5 How. 47; O'Brien v. Bowes, 4 Bosw. 663, Brinkley v. Brinkley, 56 N. Y. 192. 1011. [Amended, 1879.] Reference by consent; when and how made. Except in a case specified in the next section, the whole issue, or any of the issues in an action, either of fact or of law, must be referred, upon the consent of the parties, manifested by a written stipulation, signed by their attorneys, and filed with the clerk. Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issues for trial, to that person only. If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise.* 1,370, and part of 273, with am't. Leaycroft v. Fowler, 7 How. 29: Waterman . Waterman, 37 id. 36; Keator e. Ulster Plank R. Co., 7 M. 41; Haner r. Bliss, id. 246; 3 Abb. 171; Hyland v. Loomis, 4s Barb. 12; White v. Coulter, 3 T. & C. 608; s. c., I Hun, 357. *See ante, p. iii. S1012. Qualification of the last section. But a reference shall not be made, of course, upon the consent of the parties, in an action to annul a marriage, or for a divorce or a separation; or an action against a corporation, to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribution of its property, unless it is brought by the attorney-general; or an action wherein a defendant, to be affected by the result of the trial, is an infant. In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; and, where a reference is granted, the court must designate the referee. New in form. See Co. Proc., 273. § 1013. Compulsory reference for the trial of issues ; in what cases it may be made. The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decision of difficult questions of law.(1) In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues;(2) or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. Co. Proc., part of 271, am'd. (1) Bensal v. Gat, 5 T. & C. 183; Flanders v. Odell, 16 Abb. N. S. 247; Williams v. Allen, 48 How. 357; Place e. Chesebrough, 63 N. Y. 315; Kingsley r. Brooklyn, 1 Abb. N. C. 108; Cowden v. Teale, 6 Hun, 532: Van Marter v. Hotchkiss, 1 Keyes, 585; Goodyear v. Brooks, 4 Rob. 682; Wheeler v. Falconer, 7 id. 45; Keeler e. Poughkeepsie P. Road Co., 10 How. 11: Sharp e. Mayor of New York, 18 id. 213; Cameron v. Freeman, id. 310; Dickinson v. Mitchell, 19 Abb. 286; Kennedy v. Shilton, 9 id. 157, note; s. c., 1 Hilt. 546; Graham v. Golding, 7 How, 260; Smith e. Dodd, 3 E. D. Smith, 348; Mills e. Thursby, 11 How. 113; Palmer r. Palmer, 13 id. 363; Jackson e. De Forest, 14 id. 81; Masterton e. Howell, 10 Abb. 118: Mitchell r. Stewart, 1 Abb. N. S. 77; Hatch e. Wolfe, 30 How. 65; Swift r. Wells, 2 id. 79; Miller r. Hooker, id. 171; Harris e. Mead, 16 Abb. 257; Parker v. Snell, 10 Wend. 577; McCullough r. Brodie, 6 Duer, 659; Brown e. Bradshaw, 1 14. 635; s. c., 8 How. 176; Goodyear v. Brooks, 2 Abb. N. S. 296; Atocha v. Garcia, 15 1. 303; Sefgel r. Heid, 36 How. 506; Schemerhorn e. Wood, 4 Daly, 158; Evans v. Kalbfleisch, 16 Abb. N. S. 13; Williams e. Allen, 48 How. 357; Welsh . Darragh, 52 N. Y. 590; McCullough v. Brodie, 13 How. 346. (2) McCullough e. Brodie, 13 How. 346; s. c., 6 Duer, 659; Cameron v. Freeman, 18 How. 310; s. c., 10 Abb. 332. S1014. Proceedings where the reference is for trial of part of the issues. -- Where a reference is made, as prescribed in the last section, to report upon a specific question of fact, involved in the issue, and the determination of one or more other issues is necessary, in order to enable the court to render judgment, they must be tried, either before or after the filing of the report, as the court directs, and either by a jury, or by the court, without a jury, as the case requires. Where they are tried by a jury, application for judgment must be made upon the verdict and the report. Substitute for part of Co. Proc., 272. See Thurber v. Chambers, 4 Hun, 721. § 1015. Compulsory reference upon questions incidentally arising. The court may likewise, of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judg ment, or where it is necessary to do so, for the information of the court;(1) and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings.(2) Co. Proc., 271, subd. 2 and 3. See 1232, post. (1) Bowman v. Sheldon, 1 Duer, 607; Fox v. Fox, 24 How. 409; Van Zant v. Cobb, 10 id. 348; Woodruff v. Com. M. Ins. Co., 2 Hilt. 130; Ehlen v. Rutger F. Ins. Co., 6 Abb. 68; Mundorff v. Mundorff, 1 Hun. 41. (2) Flagg e. Munger, 3 Barb. 9; Barron v. Sandford, 14 How. 443; 6 Abb. 320, note: Stelle v. Palmer, 7 id. 181; Meyer v. Lent, id. 225; 16 Barb. 539; Pendleton v. Weed, 17 N. Y. 72; Dwight v. St. John, 25 id. 203; Barber v. Case, 12 How. 351; Demelt v. Leonard, 19 id. 140; Munu v. Barnum, 2 Abb. 411. § 1016. Referee to be sworn.- A referee, appointed as prescribed in either of the foregoing sections of this title, must, before proceeding to hear the testimony, be sworn faithfully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to make a just and true report, according to the best of his understanding. The oath may be administered by an officer specified in section 842 of this act. But where all the parties, whose interest will be affected by the result, are of age, and present, in person or by attorney, they may expressly waive the referee's oath, The waiver may be made by written stipulation, or orally. If it is oral, it must be entered in the referee's minutes. 2 R. S. 384, 44 (2 Edm. 399), am'd. Keator v. Ulster Plank Road Co.. 7 How. 41: Whalen v. Board of Supervisors of Albany county, 6 How. 278. § 1017. Witnesses may be subpoenaed. — A witness may be subpoenaed to attend before a referee, appointed as prescribed in either of the foregoing sections of this title, to testify, and, in a proper case, to bring with him a book, document, or other paper, as upon a trial by the court. 2 R. S. 384, 45, am'd. § 1018. General powers of a referee upon a trial. — The trial, by a referee, of an issue of fact, or of an issue of law, must be brought on upon like notice,(1) and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the court, without a jury. The referee exercises, upon such a trial, the same powers as the court, to grant adjournments,(2) to preserve order, and punish the violation thereof. (3) Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow amendments to the summons, or to the pleadings;(4) to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify.(5) Upon the trial of an issue of law, the referee exercises the same power as the court, to permit a party in fault to plead anew or amend; to direct the action to be divided into two or more actions; to award costs,(6) and otherwise to dispose of any question, arising upon the decision of the issue referred to him.(7) The powers, conferred by this section, are exercised in like manner, and upon like terms, as similar powers are exercised by the court, upon a trial. First three sentences from the first three sentences of Co. Proc., 272; the remainder is new. The last sentence but one refers to 2 497, ante. (1) Mohrmann v. Buch, 5 T. & C. 700; s. c., 2 Hun, 674: Catlin e. Catlin, id. 378; Wetter v. Schlleper, 7 Abb. 92; Sage v. Mosher, 17 How. 367. (2) Harris v. Norton, 7 Wend. 534; Jackson t. Ives, 22 id. 637; 5 Hill, 375; Langley v. Hickman, 1 Sandf. 681; Acces. Transic Co. v. Garrison, 9 Abb. 141; 18 How. 1. (3) In Re Seeley & Jobson, 6 Abb. 217, note; Heerdt v. Wetmore, 2 Rob. 697. (4) Dougherty r. Valloton, 38 N. Y. Supr. 455; Woodruff e. Hurson, 32 Barb. 557; Hoyt v. Hoyt, 8 Bosw. 511; Melvin v. Wood, 4 Abb. N. S. 438; 3 Keyes, 533; Patchin v. Peck, 38 N. Y. 39. (5) Burnett r. Phalon, 19 How. 530; Fellows r. Wilson, 31 Barb. 162. (6) Graves ». Blanchard, 4 How. 303; Pratt v. Stiles, 17 id. 211; s. c., 9 Abb. 150; Barker v. White, 3 Keyes, 617; Mersereaur. Ryerss, 12 How. 300; Luddington v. Taft, 10 Barb. 448. (7) Schuyler v. Smith, 51 N. Y. 309. |