or delivered, or the restitution of any money that may be collected under or by virtue of the judgment, in case the defendant or his representative applies and is admitted to defend the action, and succeeds in his defence. ART. 2. ment and titution, § 1217. A judgment shall not be rendered for a sum of money only, Attachupon an application made pursuant to the last section, except in an undertak action specified in section six hundred and thirty-five of this act. ing for resWhere the defendant is a non-resident, or a foreign corporation, and required has not appeared, the plaintiff, upon the application for judgment in actions. such an action, must produce and file the following papers: 1. Proof, by affidavit, that a warrant of attachment, granted in the action has been levied upon property of the defendant. 2. A description of the property, so attached, verified by affidavit ; with a statement of the value thereof, according to the inventory. 3. The undertaking mentioned in section twelve hundred and sixteen, if one has been required. in certain When judgment § 1218. A judgment shall not be taken against an infant defendant, until twenty days have expired, since the appointment of a guardian cannot be ad litem for him. taken against § 1219. A defendant, against whom judgment is taken, pursuant infant. to the foregoing sections of this article, is entitled to notice, as fol- When a delows: 1. If he has appeared generally, but has made default in pleading, he is entitled to at least five days' notice of the time and place of an assessment by the clerk, or of the execution of a reference, or of a writ of inquiry; and to at least eight days' notice of the time and place of an application to the court, for judgment. 2. In a case where an application for judgment must be made to the court, the defendant may serve upon the plaintiff's attorney, at any time before the application for judgment, a written demand of notice of the execution of any reference, or writ of inquiry, which may be granted upon the application. Such a demand is not an appearance in the action. It must be subscribed by the defendant, in person, or by an attorney or agent, who must add to his signature his office address, with the particulars, prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff's attorney. Thereupon at least five days' notice of the time and place of the execution of the reference, or writ of inquiry, must be given to the defendant, by service thereof upon the person, whose name is subscribed to the demand, in the manner prescribed in this act, for service of a paper upon an attorney in an action. fendant is entitled to notice. tion may be law and is § 1220. Where an issue of law and an issue of fact arise, with respect when acto different causes of action, set forth in the complaint, and final judg- severed, if ment can be taken, with respect to one or more of the causes of action, issues of without prejudice to either party in maintaining the action, or a defence sues of fact or counterclaim, with respect to the other causes of action, or in the presented. recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires. how taken, § 1221. Where one or more issues of law, and one or more issues of Judgment fact, arise in the same action, and all the issues have been tried, final after trial judgment upon the whole issue must be taken as follows: of issues of law and is 1. Where an application must be made to the court, for judgment sues of fact, 231 in the same action. TITLE 1. Id.; after trial of issue of law only. Proceedings upon under the last two sections. upon the issue last tried, the application must be for judgment, upon the whole issue; and judgment must be rendered accordingly. 2. Where the action is triable by a jury, and the issue last tried is tried at a term of the court, the application for judgment, upon the whole issue, may be entertained, in the discretion of the court, at that term, and with or without notice; if not so entertained, it must be heard as a motion. 3. Where the issue last tried is tried before a referee, his report must award the proper judgment upon the whole issue, unless otherwise prescribed in the order of reference. § 1222. Final judgment upon an issue of law, where no issue of fact remains to be tried, may be entered on application to the court, or by the clerk, in a action specified in section four hundred and twentytwo of this act. § 1223. Upon an application, by either party, to the court, for final application judgment, after the decision of an issue of law, as prescribed in the last two sections, the court has the powers specified in section one thousand two hundred and fifteen of this act, upon an application for judgment by, the plaintiff. Where final judgment may be awarded in a referee's report, as prescribed in section twelve hundred and twenty-one of this act, the referee may make a computation, or an assessment, or take an account, or proof of a fact, for the purpose of enabling him to award the proper judgment, or enabling the court to carry it into effect; and he may ascertain and fix the damages, as a jury may do, upon the execution of a writ of inquiry. Id.; upon interlocu § 1224. When an order or judgment is wholly or partly affirmed upon tory judge an appeal to the general term, and no issue of fact remains to be tried, firmed on the general term may, in its discretion, render final judgment, unless appeal to it permits the appellant to amend or plead over. ment, af the general term. § 1225. In an action triable by the court, where one or more specific Judgment, questions of fact, arising upon the issues, have been tried by a jury, by jury of judgment may be taken, upon the application of either party, as follows: after trial specific questions of fact. Id.; after reference to deter 1. If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the decision of the court, or the report of a referee, an application for judgment, upon the whole issue, may be made as upon a motion. 2. If one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue, at the term of the court where, or by direction of the referee by whom, they are tried. § 1226. Where a reference has been made, to report upon one or more specific questions of fact, arising upon the issue, and the remaining mine spe- issues have been tried, judgment must be taken, upon the application of either party, as prescribed in section one thousand two hundred and twenty-one of this act. cific questions of fact. Id.; upon motion for new trial, heard at general term. Id.; upon trial by § 1227. Where a motion for a new trial, made in the first instance at a general term is denied, judgment may be taken, as if the motion for a new trial had not been made, after the expiration of four days from the entry of the order, and the service, upon the attorney for the adverse party, of a copy thereof, and notice of the entry; but not before. § 1228. Where the whole issue is an issue of fact, which was tried 232 ART. 2. court or the whole by a referee, the report stands as the decision of the court. Except where it is otherwise expressly prescribed by law, judgment upon such referee of a report, or upon the decision of the court, upon the trial of the whole issue of issue of fact without a jury, may be entered by the clerk, as directed fact. therein, after the expiration of four days from the filing of the decision or report, and the service, upon the attorney for the adverse party, of a copy thereof, and notice of the filing; but not before. monial causes, can be ren § 1229. In an action to annul a marriage, or for a divorce or separa- In matrition, judgment cannot be taken, of course, upon a referee's report, as prescribed in the last section, or where the reference was made, as pre- judgment scribed in section one thousand two hundred and fifteen of this act. dered only Where a reference is made in such an action, the testimony, and the by the other proceedings upon the reference, must be certified to the court, by the referee, with his report; and judgment must be rendered by the court. court. ment upon awarding § 1230. In a case, not provided for in the foregoing sections of this Final judgarticle, where the decision, upon a trial by the court, without a jury, decision or or the report, upon a trial by a referee directs an interlocutory judg- report ment to be entered, and the party afterwards becomes entitled to a interlocu final judgment, an application for the latter may be made, as upon a tory judg motion. And where a judgment requires the appointment of a referee, to do any act thereunder, the referee must be appointed by the judgment or by the court, upon motion, except as otherwise prescribed in the next section. ment, etc. settled in § 1231. In an action triable by the court, an interlocutory judgment Id.; how final judgrendered upon a default in appearing or pleading, or pursuant to the ment endirection contained in a decision or report, may state the substance of tered and the final judgment, to which the party will be entitled. It may also certain direct, that the final judgment be settled by a judge, or a referee. In cases. that case, final judgment shall not be entered, until a settlement thereof, subscribed by the judge or referee, is filed. Where an interlocutory judgment awards costs, they may be awarded generally, without specifying the amount thereof. Where the final judgment is directed to be settled, and the costs have not been taxed, when the settlement thereof is filed, a blank for the amount of the costs must be left in the settlement; and the costs must be taxed, and the blank filled up accordingly, by the clerk, when the final judgment is entered. ence or inhow re § 1232. Where a reference, or a writ of inquiry, directed as pre- Interlocuscribed in section one thousand and fifteen, or section one thousand tory refer two hundred and fifteen of this act, has been executed, either party quisition; may apply for an order, directing a new hearing, or a new writ of viewed. inquiry, upon proof, by affidavit, that error was committed, to his prejudice, upon the hearing, or in the report, or upon the execution of the writ or in the inquisition. In a proper case, the application may be granted, after judgment has been entered. In that case, the judgment may be set aside, either then or after the new hearing, or the execution of the new writ, as justice requires. § 1233. A motion for judgment, upon a special verdict, may be made Motion for by either party; and must, in the first instance, be heard and decided, judgment at a term held by one judge. cial verdict, etc. Id. ; upon § 1234. A motion for judgment, upon a verdict subject to the opinion of the court, may be made by either party; and must be heard and verdict decided at the general term. 233 subject to opinion of court. TITLE 1. Interest on etc., to be § 1235. Where final judgment is rendered for a sum of money, verdict, awarded by a verdict, report, or decision, interest upon the sum ced in awarded, from the time when the verdict was rendered, or the report or decision was made, to the time of entering judgment, must be computed by the clerk, added to the sum awarded, and included in the amount of the judgment. recovery. Clerk to keep judg to be § 1236. The clerk must keep, among the records of the court, a book ment book; for the entry of judgments, styled the "judgment-book." Each interjudgment locutory or final judgment must be entered in the judgment-book, and tered attested by the signature of the clerk; who must note, in the margin of the entry, the day and year of entering it. It must specify clearly the relief granted, or other determination of the action, or of the issue. therein. Judgmentroll to be filed; of what it consists. Id.; by whom prepared. filing judg § 1237. The clerk, upon entering final judgment, must immediately file the judgment-roll; which must consist, except where special provision is otherwise made by law, of the following papers: the summons; the pleadings or copies thereof; a certified copy of the final judgment, and also of the interlocutory judgment, if any; and each paper on file, or a copy thereof, and a copy of each order, which in any way involves the merits, or necessarily affects the judgment. If judgment is taken by default, the judgment-roll must also contain the papers required to be filed, upon so taking judgment, or upon making application therefor; together with any report, decision, or writ of inquiry, and return thereto. If judgment is taken after a trial, the judgmentroll must contain the verdict, report, or decision; each offer, if any, made as prescribed in this act; and the exceptions or case, then on file. § 1238. The judgment-roll must be prepared, and furnished to the clerk, by the attorney, for the party, at whose instance the final judgment is entered; except that the clerk must attach thereto the necessary original papers, on file. But the clerk may, at his option, make up the entire judgment-roll: Time of § 1239. The clerk must make a minute, upon the back of each ment-roll judgment-roll, filed in his office, of the time of filing it, specifying to be noted. the year, month, day, hour, and minute. A proceeding to enforce or collect a final judgment, cannot be taken, until the judgment-roll is filed. When a judgment may be en forced by execution When a judgment § 1240. In either of the following cases, a final judgment may be enforced by execution: 1. Where it is for a sum of money, in favor of either party; or directs the payment of a sum of money. 2. Where it is in favor of the plaintiff, in an action of ejectment, or for dower. 3. In an action to recover a chattel, where it awards a chattel to either party. § 1241. In either of the following cases, a judgment may be enforced, may be en- by serving a certified copy thereof, upon the party against whom it is forced by rendered, or the officer or person, who is required thereby, or by law, ment for to obey it; and, if he refuses or wilfully neglects to obey it, by punishing him for a contempt of the court. punish disobeying it. 1. Where the judgment is final, and cannot be enforced by execution, as prescribed in the last section. 2. Where the judgment is final, and part of it cannot be enforced by execution, as prescribed in the last section; in which case, the part or parts, which cannot be so enforced, may be enforced as prescribed in this section. 3. Where the judgment is interlocutory, and requires a party to do, or to refrain from doing, an act; except in a case specified in the next subdivision. 4. Where the judgment requires the payment of money into court, or to an officer of the court; except where the money is due upon a contract, express or implied, or as damages for non-performance of a contract. In a case specified in this subdivision, if the judgment is final, it may be enforced, as prescribed in this section, either simulta neously with, or before or after the issuing of an execution thereupon, as the court directs. ART. 3. sold. Ef § 1242. Except where special provision is otherwise made by law, Real propreal property, adjudged to be sold, must be sold in the county where erty; how it is situated, by the sheriff of the county, or by a referee, appointed fect of con by the court for that purpose, who must execute a conveyance to the veyance. purchaser. The conveyance is effectual, to pass the right title, or interest of a party, adjudged to be sold; but nothing contained in this section shall be deemed to repeal or modify the provisions of any law specially regulating the sale of real property under a judgment or a decree of any court, in any particular county of the State. by referee. § 1243. Where a referee is appointed by the court, to sell real prop- Security erty, the court may provide for his giving such security, as the court upon sale deems just, for the proper application of the money received upon the sale: or for the payment thereof by the purchaser, directly to the person or persons entitled thereto, or their attorneys. state name § 1244. A conveyance of property, sold by virtue of an execution or Conveysold pursuant to a judgment, must distinctly state, in the granting ance to clause thereof, whose right, title or interest was sold, and is conveyed, of party. without naming, in that clause, any of the other parties to the action; otherwise, the purchaser is not bound to accept the conveyance, and the officer executing it is liable for the damages, which the purchaser sustains by the omission, whether he accepts or refuses to accept it. ; DOCKETING A JUDGMENT; EFFECT THEREOF AS A LIEN UPON REAL PROPERTY SECTION 1245. Certain clerks to keep docket-books. 1246. Id.; to docket judgments. 1247. Filing transcripts, and docketing judgments thereon. 1249. Dockets to be public. 235 |