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TITLE 4.

Other proof.

Proof may be rebutted.

Copies of records of

to the effect that the person, subscribing the certificate attached to the transcript, was, at the date of the judgment, a justice of the peace of that county; and that the signature thereto is in his own handwriting.

§ 950. The judgment and other proceedings, and the justice's authority to render the judgment, may also be proved, by the production of the docket, or of a copy of the judgment or other proceedings; and the oral testimony of the justice, to the truth and correctness thereof, and to his authority to render the judgment.

§ 951. The last three sections do not prevent the introduction of evidence, to controvert any of the proof, in relation to the validity of a judgment therein specified.

§ 952. A copy of a record, or other judicial proceeding, of a court of a courts of foreign country, is evidence, when authenticated as follows:

foreign countries; how authenticated.

Other proof.

This article does not declare

effect of

record, etc.

from for

1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office.

2. By a certificate of the chief-judge or presiding magistrate of the court to the effect, that the person, so attesting the record, is the clerk of the court; or that he is the officer, in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine.

3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the Secretary of State, or other officer having the custody of that seal, to the effect, that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief-judge or presiding magistrate, to the certificate specified in the last subdivision, is genuine.

§ 953. A copy of a record, or other judicial proceeding, of a court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts:

1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of the original.

2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. 3. That the attestation is genuine.

§ 954. Nothing in this article is to be construed, as declaring the effect of a record or other judicial proceeding of a foreign country, authenticated so as to be evidence.

Documents § 956. A copy of a patent, record, or other document, remaining of eign coun- record, in a public office of a foreign country certified, according to the tries; how form in use in that country, is evidence when authenticated as fol

authenti

cated.

lows:

1. By the certificate under the hand and official seal of a commissioner, appointed by the Governor, to take the proof or acknowledgment of deeds in that country, to the effect, that the patent record or document is of record in the public office, and that the copy thereof is correct, and certified in due form.

2. By a certificate under the hand and official seal of the Secretary of State annexed to that of the commissioner, to the same effect as prescribed by law for the authentication of the certificate of such a commissioner upon a conveyance to be recorded within the State. The certificate of the commissioner, thus authenticated, is presumptive evidence that the copy of the patent, record or document, is certified according to the form in use in the foreign country.

TITLE 5.

TITLE V.

Miscellaneous provisions.

SECTION 957. Form of certificate to copies, etc.

958. Certificate must be sealed.

959. Qualification of last section.

960. Public or corporate seal may be stamped; but private seal not.
961. Surrogates, clerks, etc., to search files, and to certify, etc.
962. Saving clause.

certificate

§ 957. Where a transcript, exemplification, or certified copy of a Form of record or other paper, is declared by law to be evidence, and special to copies, provision is not made for the form of the certificate, in the particular etc. case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original.

§ 958. If the officer, or the court, body, or board, in whose custody Certificate an original paper, specified in the last section, is required to be, by the must be laws of the State, or of another State, or of the United States, or of a Territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the State, it must be attested by the seal of the county.

tion of last

§ 959. The last section does not require the seal of a court to be Qualifica affixed to a certified copy of an order, or of a paper filed therein, or section. entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer.

§ 960. Where a seal of a public officer, or of a corporation, is authorized or required by law, it may be impressed directly on the paper.

clerks,

search

etc.

§ 961. A surrogate, county clerk, register, clerk of a court, or other surroperson, having the custody of the records or other papers in a public gate office, within the State, must, upon request, and upon payment of, or etc., to offer to pay, the fees allowed by law, or, if no fees are expressly allowed files, and by law, fees at the rate allowed to a county clerk for a similar service, to certify, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor.

clause.

§ 962. Nothing in title fourth of this chapter prevents the proof of Saving a fact, act, record, proceeding, document, or other paper or writing, according to the rules of the common law, or by any other competent proof.

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TITLE 1.

CHAPTER X.

TRIALS; INCLUDING JURORS AND JURIES.

TITLE I. TRIALS GENERALLY; INCLUDING EXCEPTIONS AND MOTION
FOR A NEW TRIAL.

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TITLE III.-TRIAL JURORS, EXCEPT IN NEW-YORK AND KINGS COUN-
TIES; MODE OF SELECTING THEM, AND OF PROCURING
THEIR ATTENDANCE.

TITLE IV.-TRIAL JURORS IN NEW-YORK AND KINGS COUNTIES; MODE
OF SELECTING them, and OF PROCURING THEIR ATTEND-
ANCE.

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TITLE VI.- MISCELLANEOUS PROVISIONS; INCLUDING THOSE RELATING

TO EMBRACERY AND OTHER ACTS OF MISCONDUCT.

TITLE I.

Trials generally; including exceptions and motion for a new trial.

ARTICLE 1. Issues, and the mode of trial thereof.

2. The place of trial.

3. Exceptions, case, and motion for a new trial.

ARTICLE FIRST.

ISSUES, AND THE Mode of TRIAL THEREOF.

SECTION 963. Issues defined, different kinds of issues.

964. When issues of law arise; when issues of fact arise.

965. Issues to be judicially examined by a trial.

966. Order of trial, where issues of law and of fact arise in the same action. 967. But court may direct the order, etc., of disposition of the issues.

968. What issues of fact are triable by a jury.

969. What issues are triable by the court.

970. Order for trial by jury, of specific questions of fact, when of right.
971. Id.; when discretionary.

972. Trial of the remainder of the issues.

*973. Mode of trial, where complaint demands alternative judgments.

974. Counterclaim to be deemed an action, within the foregoing sections.
975. Immaterial issues need not be tried.

976. What issues to be tried before one judge; regulation of trial in the
supreme court.

977. Notice of trial and note of issue.

978. Order of disposition of issues at a jury term.

979. Id.; when a jury does not attend.

980. Either party may bring issue to trial.

981. What papers to be furnished on trial, and by whom.

fined; dif

§ 963. The issues, treated of in this chapter, are those only which Issues deare presented by the pleadings. An issue arises where a fact, or a con- ferent clusion of law, is maintained by one party, and controverted by the other. Issues are of two kinds :

1. Of law; and

2. Of fact.

kinds of issues.

§ 964. An issue of law arises only upon a demurrer. An issue of When 18fact arises, in either of the following cases:

1. Upon a denial, contained in the answer, of a material allegation of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint.

2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer.

3. Upon a material allegation of new matter, contained in the answer, not requiring a reply; unless an issue of law is joined thereupon. 4. Upon a material allegation of new matter, contained in the reply; unless an issue of law is joined thereupon.

sues of law arise; when issues of fact arise.

examined

§ 965. An issue, either of law or of fact, must be judicially exam- Issues to be ined by means of a trial, as prescribed in this chapter; unless it is dis- judicially posed of upon a motion, or upon exceptions, as prescribed in chapter by a trial. sixth of this act.

law and of

§ 966. Where an issue of law and an issue of fact arise in one action, issues of the issue of law must be first disposed of, except as otherwise prescribed fact in the in the next section.

same

action.

may direct

etc., of dis

§ 967. A separate trial, between the plaintiff and one or more de- But court fendants, of some or all of the issues of fact, or one trial of some or all the order, of the issues of law, or a change in the order of disposition of the issues, position of may be directed by the court, in its discretion. Such a direction may the issues. be given, in an order, made upon notice; or except where an application for such an order has been denied, it may be given, by the judge holding the term, where those issues are regularly upon the calendar for trial, either with or without the entry of an order.

sues of fact are triable by a jury.

§ 968. In each of the following actions, an issue of fact must be tried What is by a jury, unless a jury trial is waived, or a reference is directed: 1. An action in which the complaint demands judgment for a sum of money only.

Stricken out.

TITLE 1.

What issues are

triable by the court.

Order for trial by jury, of specific questions of fact,

when of right.

Id.; when discretion. ary.

Trial of the remainder of the issues.

Counterclaim to be

within the

2. An action of ejectment; for dower; for waste; for a nuisance; or to recover a chattel.

§ 969. An issue of law, in any action, and an issue of fact, in an action not specified in the last section, or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury, trial is directed.

§ 970. Where a party is entitled, by the Constitution, or by express provision of law, to a trial, by a jury, of one or more issues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply, upon notice, to the court for an order, directing all the questions, arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application, the court must cause the issues, to the trial of which, by a jury, the party is entitled, to be distinctly and plainly stated. The subsequent proceedings are the same, as where questions, arising upon the issues, are stated for trial by a jury, in a case where neither party can, as of right, require such a trial; except that the finding of the jury, upon each question so stated, is conclusive in the action, unless the verdict is set aside, or a new trial is granted.

§ 971. In an action, where a party is not entitled, as of right, to a trial by a jury, the court may, in its discretion, upon the application of either party, or without application, direct that one or more questions of fact, arising upon the issues, be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly.

§ 972. If the questions, directed to be tried by a jury, as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee.

§ 974. Where the defendant interposes a counterclaim, and theredeemed an upon demands an affirmative judgment against the plaintiff, the mode action, of trial of an issue of fact, arising thereupon, is the same, as if it arose foregoing in an action, brought by the defendant, against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment.

sections.

issues need

Immaterial $975. An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.

not be tried.

What is

sues to be tried before one

judge; reg

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§ 976. An issue of law, or an issue of fact, triable by a jury or by the court, must be tried at a term held by one judge only, except as otherwise prescribed in section two hundred ninety-seven of this ulation of act. In the supreme court, an issue of fact, triable by a jury, must be tried in the circuit court; and an issue of fact, triable by the court, or an issue of law, may be tried in the circuit court, or at a special term of the supreme court, as prescribed in the general rules of practice.

trial in the supreme court.

Notice of trial and note of

issue.

§ 977. At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action; the names of the attorneys; the time when the last pleading was served; the nature of the issue, whether of fact or of law; and, if an issue of fact, whether it is triable by a jury, or by the court, without a jury. The note of issue must be filed, at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The clerk must prepare the calen

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