requires. Where they are tried by a jury, application for judgment must be made upon the verdict and the report. See Code Pro., § 272; Wait's Code, 486-488; 3 Wait's Pr. 268; Thurber v. Chambers, 4 Hun, 721. sory upon incident § 1015. The court may likewise, of its own motion, or upon Compulthe application of either party, without the consent of the other, reference direct a reference to take an account, and report to the court thereon, questions either with or without the testimony, after interlocutory or final ally judgment, or where it is necessary to do so, for the information of the court; 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. Code Pro., § 271, subds. 2 and 3; Wait's Code, 485; 3 Wait's Pr. 253, 254. And see Darling v. Brewster, 55 N. Y. (10 Sick.) 667; People v. Dutchess & Columbia R. R. Co., 58 N. Y. (13 arising. to be § 1016. A referee, appointed as prescribed in either of the Referee foregoing sections of this title, must, before proceeding to hear the sworn. 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 interests 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. 399, § 44, amended. See 3 Wait's Pr. 294. may be § 1017. A witness may be subpoenaed to attend before a ref- Witnesses eree, appointed as prescribed in either of the foregoing sections of subpoe 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. 399, § 45, amended. See 3 Wait's Pr. 287. naed. powers of upon a § 1018. The trial, by a referee, of an issue of fact, or of an General issue of law, must be brought on upon like notice, and conducted a referee in like manner, and the papers to be furnished thereupon are the trial. 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 power as the court, to grant adjournments, to preserve order, and punish the violation thereof. Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow Referee's report; when to be made; conse quence of failure. other in creased damages. amendments to the summons, or to the pleadings; 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. 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, and otherwise to dispose of any question, arising upon the decision of the issue referred to him. 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. The first three sentences are from Code Pro, 272; the remainder of the section is new. See Wait's Code, 486, et seq.; 3 Wait's Pr. 291. A refusal of a referee to pass upon an objection to evidence at the time it is offered, and the receipt thereof, with a reservation of the question as to its admissibility until the close of the case, though improper, is not nec essarily fatal to the judgment. Lathrop v. Bramhall, 3 Hun, 394; S. C., 5 N. Y. Sup. Ct. (T. & C.) 680; S. C. affirmed. 64 N. Y. (19 Sick.) 365. A referee has power to give judg ment for the plaintiff upon the pleadings where the answer does not con tain facts constituting a defence. Schuyler v. Smith, 50 N. Y. (6 Sick.) 309; S. C., 10 Am. Rep. 609. § 1019. Upon the trial, by a referee, of an issue of fact, or an issue of law, his written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice, upon the attorney for the adverse party, that he elects to end the reference. In such a case, the action must thenceforth proceed, as if the reference had not been directed; and the referee is not entitled to any fees. Code Pro., 273, concluding sentence. See Wait's Code, 500; 3 Wait's Pr. 307. After notice of election to end a reference, all subsequent proceedings by or before the referee are a nullity. And the court has no power to render such proceedings valid by an order enlarging the time for delivering the report, or otherwise. Gregory v. Cryder, 10 Abb. N. S. 289. But it has been held, that where an oral agreement is made in open court upon a trial before a referee, upon final submission, extending indefinitely the time within which the report may be made and delivered, the reference cannot be terminated in the manner provided by this section. Ballou v. Parsons, 55 N. Y. (10 Sick.) 673. Double or $ 1020. Where the* double, treble, or other increased damages are given by statute, the decision of the court, or the report of the referee, must specify the sum awarded as single damages, and direct judgment for the increased damages. New. See post, § 1184. *This word inserted by error in engrossing. of court § 1021. The decision of the court, or the report of a referee, Decision upon the trial of a demurrer, must direct the judgment to be entered or report thereupon, or other disposition of the cause, as prescribed in section upon 1018 of this act. See Code Pro., § 267; Wait's Code, 478; 3 Wait's Pr. 230. of referee, trial of demurrer. trial of issue of § 1022. [Amended, 1877.] The decision of the court, or the Id.; upon report of the referee, upon the trial of the whole issue of fact, must the whole state separately the facts found, and the conclusions of law; and it fact. must direct the judgment, to be entered thereupon. In an action, where the costs are in the discretion of the court, the decision or report must award or deny costs; and, if it awards costs, it must designate the party to whom costs, to be taxed, are awarded. See Code Pro., §§ 267 and 272; Wait's Code, 478, 486; 3 Wait's Pr. 218, 219, 305. The last sentence is new in form. It seems that where the findings of fact, settled by a referee in a case, are in conflict with the findings contained in his report, the former will be assumed to be correct and the latter will be disregarded. Tompkins v. Lee, 59 N. Y. (14 Sick.) 662. On appeal from a judgment on a report of a referee the court have power to review the rulings of the referee on questions of evidence arising on the trial, and presented by exceptions taken at the trial, although the case contain no exceptions to the referee's conclusions of law. Dainese v. Allen, 45 How. 430; S. C., 4 J. & Sp. 98; 14 Abb. N. S. 363. may re court or determine questions. § 1023. Before the cause is finally submitted to the court or Parties the referee, or within such time afterwards, and before the decision quire or report is rendered, as the court or referee allows, the attorney for referee to either party may submit, in writing, a statement of the facts, which particular he deems established by the evidence, and of the rulings upon questions of law, which he desires the court or the referee to make. The statement must be in the form of distinct propositions of law, or of fact, or both, separately stated; each of which must be numbered, and so prepared, with respect to its length, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. At or before the time, when the decision or report is rendered, the court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report. New. This section provides a method of proceeding, in addition to that under Code Pro. See, as to the latter, 3 Wait's Pr. 305; Smith v. tions of a § 1024. A referee, appointed by the court, must be free from Qualifica all just objections; and no person shall be so appointed, to whom all referee. Several referees may be the parties object, except in an action to annul a marriage, or for a divorce, or a separation. A judge cannot be appointed a referee, in an action brought in the court, of which he is a judge, except by the written consent of the parties; and, in that case, he cannot receive any compensation as referee. Code Pro., part of § 273, amended. See Wait's Code, 488; 3 Wait's Pr. 270. § 1025. Where the court is authorized to appoint a referee, it appointed. may, in its discretion, appoint either one or three. And where a reference is made by consent of the parties, they may select any number of referees, not exceeding five. Proceed ings regu lated where several referees. See Code Pro., § 273. § 1026. Where the reference is to more than one referee, all must meet together, and hear all the allegations and proofs of the there are parties; but a majority may appoint a time and place for the trial, decide any question which arises upon the trial, sign a report, or settle a case. Either of them may administer an oath to a witness; and a majority of those present, at a time and place appointed for the trial, may adjourn the trial to a future day. 2 R. S. 399, § 46, amended. See 3 Wait's Pr. 294, 326, 432. TITLE III. Trial jurors, except in New York and Kings counties; mode of selecting them, and of procuring their attendance ARTICLE 1. Qualifications and exemptions of trial jurors. 2. Mode of selecting, drawing, and procuring the attendance of trial jurors, in ordinary cases. 3. Mode of striking and procuring a special jury, and of procuring a foreign jury. 4. Penalties for non-attendance. ARTICLE FIRST. QUALIFICATIONS AND EXEMPTIONS OF TRIAL JURORS. SEC. 1027. Qualifications of trial jurors. 1028. Additional provision respecting property qualification. 1029. Certain public officers disqualified. 1030. Persons entitled to claim exemption from service. 1031. Evidence of exemption in certain cases. 1032. When juror to be discharged from serving. 1033. When juror to be excused from serving. 1034. Application of this article, as respects New-York and Kings counties. tions of § 1027. In order to be qualified to serve, as a trial juror, in a Qualificacourt of record, a person must be: 1. A male citizen of the United States, and a resident of the county. 2. Not less than twenty-one, nor more than sixty years of age. 3. Assessed, for personal property, belonging to him, in his own right, to the amount of two hundred and fifty dollars; or the owner of a freehold estate in real property, situated in the county, belonging to him in his own right, of the value of one hundred and fifty dollars; or the husband of a woman who is the owner of a like freehold estate, belonging to her, in her own right. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions; of fair character; of approved integrity; of sound judgment; and well informed. 2 R. 8. 428, § 13, amended. See 3 Wait's Pr. 89. So far as the property qualification of a juror depends upon the ownership of personalty, it must appear and be evidenced by the assessment-roll. trial jurors tional respecting qualifica § 1028. But a person who was assessed, on the last assessment- Addiroll of the town, for land in his possession, held under a contract for provision the purchase thereof, upon which improvements, owned by him, have property been made, to the value of one hundred and fifty dollars, is qualified tion. to serve as a trial juror, although he does not possess either of the qualifications, specified in subdivision third of the last section, if he is qualified in every other respect. 2 R. S. 429, § 14, extended. See 3 Wait's Pr. 90. § 1029. Each of the following officers is disqualified to serve Certain as a trial juror: public officers disquali 1. The governor; the lieutenant-governor; the governor's private fed. secretary. 2. The secretary of State; the comptroller; the State treasurer; the attorney-general; the State engineer and surveyor; a canal commissioner; an inspector of State prisons; a canal appraiser; the superintendent of public instruction; the superintendent of the bank department; the superintendent of the insurance department; and the deputy of each officer, specified in this subdivision. 3. A member of the legislature, during the session of the house, of which he is a member. 4. A judge of a court of record, or a surrogate. |