TITLE 2. Motion for new hear ing, after trial of spe cific ques tions by a referee. Final judg ment, etc., for a new trial. § 1004. In an action triable by the court, where a reference has been made, to report upon one or more specific questions of fact, involved in the issue, a motion for a new hearing may be made at a special for at any time before the hearing of a motion for final judgment, or ** trial of the remaining issues of fact. The motion must be made u affidavits, unless the court, or a judge thereof, directs a ca e to be p:pared and settled. § 1005. The entry of final judgment, and the subsequent proceedia. not stayed to collect or otherwise enforce it, are not stayed by an exception, the by motion preparation or settlement of a case, or a motion for a new trial, unles Mo an order for such a stay is procured and served; and the entry, coll tion, or other enforcement of a judgment does not prejudice: subsequafterwards. motion for a new trial. Where a new trial is granted, the court m direct and enforce restitution, as where a judgment is reversed up appeal. tion may be heard When exception not to preju. dice motion for § 1006. The taking of an exception, upon a trial by a jury, or th statement thereof in a case, as prescribed in this article, does not prej dice a motion for a new trial, on the ground that the verdict w: new rial. contrary to evidence; but such a motion may be made, before or afte the hearing of the exception; or, in the discretion of the cour befo which the exception is heard, at the time of the hearing. Notes of stenogra pher may be treated ag minutes of the judge. § 1007. The notes of an official stenographer or assistant-ster rapher, taken at a trial, when written out at length, may be treated the discretion of the judge, as the minutes of the judge upon the tria for the purposes of this article. Thisday тель If trial by jury TITLE II. Trials without a jury. SECTION 1008. If trial by jury waived, action must be tried by the court. 1010. Decision upon trial by the court, when to be filed; consequence of 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. § 1008. In an action triable by a jury, if the parties waive the trial, waived, ac. by a jury, of the issue of fact, the action must be tried by the court, law. TITLE 2. without a jury; unless a reference is directed, in a case prescribed by tion must But such an action, other than to recover damages for breach of be tried by a contract, cannot be tried by the court, without a jury, unless the the court. judge, presiding at the term where it is brought on for trial, assents to such a trial. His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section. § 1009. A party may waive his right to the trial of the issue of fact, Trial by by a jury, in any of the following modes: 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attorney ›r the party. 3. By an oral consent in open court, entered in the minutes. . By moving the trial of the action, without a jury; or, if the adse party so moves it, by failing to claim a trial by a jury, before the oduction of any evidence upon the trial. jury; how waived. when to § 1010. Upon a trial, by the court, of an issue of fact or of law, its Decision decision, in writing, must be filed, in the clerk's office, within twenty upon trial days after the final adjournment of the term, where the issue was tried. court, If it is not so filed, either party may move, at a special term, for a new be filed; trial upon that ground. If the decision has not been filed, when the conse motion is heard, the court must make an order for a new trial, either failure. 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. quence of when and § 1011. Except in a case specified in the next section, the whole Reference issue, or any of the issues in an action, either of fact or of law, must by consent; be referred, upon the consent of the parties, manifested by a written how made. 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. last sec § 1012. But a reference shall not be made, of course, upon the con- Qualificasent of the parties, in an action to annul the marriage, or for a divorce tion of the or a separation; or an action against a corporation, to obtain a dissolu- tion. tion 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. ence for issues; in § 1013. The court may, of its own motion, or upon the application of Compulsoeither party, without the consent of the other, direct a trial of the ry referissnes of fact, by a referee, where the trial will require the examina- the trial of tion of a long account, on either side, and will not require the decision what cases of difficult questions of law. In an action, triable by the court, with- it may be out a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. made. § 1014. Where a reference is made, as prescribed in the last section, Proceedto report upon a specific question of fact, involved in the issue, and the ings where determination of one or more other issues is necessary, in order to ence is for the refer trial of TITLE 2. enable the court to render judgment, they must be tried, either before part of the 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. Wher they are tried by a jury, application for judgment must be made upo the verdict and the report. issues. Compulso- ence upon incident- ing. Referee to ason Witnesses General powers of upon a trial. § 1015. The court may likewise, of its own motion, or upon th application of either party, without the consent of the other, direct reference to take an account, and report to the court thereon, citi with or without the testimony, after interlocutory or final. where it is necessary to do so, for the information of the court; a also to determine and report upon a question of fact, arising in a stage of the action, upon a motion, or otherwise, except up on pleadings. § 1016. A referee, appointed as prescribed in either of the forego" sections of this title, must, before proceeding to hear the testinomy. sworn faithfully and fairly to try the issues, or to determine the tions referred to him, as the case requires, and to make just and report, according to the best of his understanding. The on administered by an officer specified in section eight hundred and i two of this act. But where all the parties, whose interests w] affected by the result, are of age, and present, in person or by attor ney, they may expressly waive the referee's oath. The waiver may b made by written stipulation, or orally. If it is oral, it must be entere in the referee's minutes. § 1017. 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. § 1018. The trial, by a referee, of an issue of fact, or of an issue of a referee, law, must be brought on upon like notice, 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 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 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. Referee's sequence § 1019. Upon the trial, by a referee, of an issue of fact, or an issue when to be of law, his written report must be either filed with the clerk, or deliv made; con- ered to the attorney for one of the parties, within sixty days from the of failure. 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. Double or § 1020. Where the double, treble, or other increased damages are TITLE 2. creased 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 damages. for the increased damages. port of ref §1021. The decision of a court, or the report of a referee, upon the Decision of trial of a demurrer, must direct the judgment to be entered there- court or reupon, or other disposition of the cause, as prescribed in section one eree, upon thousand and eighteen of this act. trial of de murrer. whole issue § 1022. The decision of the court, or the report of the referee, upon Id.; upon the trial of the whole issue of fact, must state separately the facts trial of the found, and the conclusions of law; and it must direct the judgment, of fact. 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. may re to deter questions. § 1023. Before the cause is finally submitted to the court or the Parties referee, or within such time afterwards, and before the decision or quire court report is rendered, as the court or referee allows, the attorney for either or referee party may submit, in writing, a statement of the facts, which he deems mine parestablished by the evidence, and of the rulings upon questions of law, ticular 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 the 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. tions of a $1024. A referee, appointed by the court, must be free from all just Qualifica objections; and no person shall be so appointed, to whom all the parties referee. 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. referees § 1025. Where the court is authorized to appoint a referee, it may, Several in its discretion, appoint either one or three. And where a reference may be ap. is made by consent of the parties, they may select any number of pointed. referees, not exceeding five. ings regu there are § 1026. Where the reference is to more than one referee, all must Proceedmeet together, and hear all the allegations and proofs of the parties; lated but a majority may appoint a time and place for the trial, decide any where question which arises upon the trial, sign a report, or settle a case. several Either of them may administer an oath to a witness; and a majority referees. of those present, at a time and place appointed for the trial, may adjourn the trial to a future day. 189 TITLE 3. 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. Qualifications of ARTICLE FIRST. QUALIFICATIONS AND EXEMPTIONS OF TRIAL JURORS. SECTION 1027. Qualifications of trial jurors. 1028. Additional provision respecting property qualifications. 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. § 1027. In order to be qualified to serve, as a trial juror, in a court trial jurors. of record, a person must be: Additional 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. § 1028. But a person who was assessed, on the last assessment-roll provising of the town, for land in his possession, held under a contract for the property purchase thereof, upon which improvements, owned by him, have been qualification. made, to the value of one hundred and fifty dollars, is qualified 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. Certain public offi. cers disqualified. § 1029. Each of the following officers is disqualified to serve as a trial juror: 1. The Governor; the Lieutenant-Governor; the Governor's private 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. |