72 PART III. Either party may bring issue to trial. General verdicts 1. Issues of fact to be tried by a jury; 8 B., 575; 11 Ab., 246; 26 How. P. R., 156. CHAPTER III. TRIAL BY JURY. SEC. 258. Either party may bring issue to trial. 259. Plaintiff to furnish court with a copy summons, pleadings, &c. 260. General and special verdicts defined. 261. Verdict in action for recovery of specific personal property; when in action for recovery of money only, or real property, jury may render either general or special verdict; and when court may direct special finding. 262. On special finding, with general verdict, former to control. 263. In actions for recovery of money only, jury to assess damages. 265. Motions for new trial, &c. S258. Either party giving the notice, may bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants, may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. As amended by Laws of 1851, ch. 479. 29 B., 547; 18 B., 597; 14 B., 577; 7 How. P. R., 489; 6 Ab., 14; 1 Ab., 3, 48; 1 E. D. S., 432; 2 S. S. C., 142. $259. When the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the summons and pleadings with the offer of defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant. As amended by Laws of 1851, ch. 479. $260. A general verdict is that by which the jury proand special nounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. defined. Verdict in 647. 23 N. Y., 541; 27 B., 192; 7 Ab., 91; 35 B., $261. In an action for the recovery of specific personal recovery of property, if the property have not been delivered to the plainspecific per tiff, or the defendant by his answer claim a return thereof, perty. the jury shall assess the value of the property, if their verdict sonal pro be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. CHAP. XI. or real pro may render In every action for the recovery of money only, or specific when in real property, the jury, in their discretion, may render a gene- action for ral or special verdict. In all other cases the court may direct money only the jury to find a special verdict in writing, upon all or any perty, jury of the issues; and in all cases may instruct them, if they ren- either geneder a general verdict, to find upon particular questions of cial verdict, fact, to be stated in writing; and may direct a written finding and when thereon. The special verdict or finding shall be filed with direct spe the clerk, and entered upon the minutes. 27 B., 192; 23 B., 248; 8 B., 574; 11 Ab., 63; 7 Ab., 91; 3 Ab., 145, ral or spe cial finding. finding $262. Where a special finding of facts shall be inconsistent on special with the general verdict, the former shall control the latter, with geneand the court shall give judgment accordingly 3 How. P. R., 281. ral verdict, former to control. for the re money only assess $263. When a verdict is found for the plaintiff in an action In actions for the recovery of money, or for the defendant when a set-off covery of for the recovery of money is established, beyond the amount jury to of the plaintiff's claim as established, the jury must also assess damages. the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a setoff, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. As amended by Laws & 1851, ch. 479. 6 How. P. R., 145; 3 Ab., 108; 19 Ab., 98. verdict. $264. Upon receiving a verdict, the clerk shall make an Entry of the entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. If an exception be taken it may be reduced to writing at the time, or entered in the judge's minutes and afterwards settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not be sealed or signed, nor need a bill of exceptions be made. If the exceptions be in the first instance stated in a case, and it be afterwards necessary to separate them, the separation may be made. under the direction of the court, or a judge thereof. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is bad. When such motion is heard and decided upon the minutes of the judge, PART III and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had. Motions for new trials. Amended by Laws of 1851, ch. 479; 1852, ch. 392. 20 N. Y., 553; 12 N. Y., 558; 11 N. Y., 481; 32 B., 570, 652; 16 B., 659; 8 B., 575; 21 How. P. R., 279; 20 How. P. R., 258; 14 How. P. R., 428; 11 How. P. R., 285; 6 How. P. R., 198, 226, 419; 12 Ab., 165; 9 Ab, 139; 8 Ab., 300; 3 Ab., 108; 45 B., 349; 37 B., 546; 35 B., 647; 29 How. P. R., 333: 24 How. P. R., 211; 19 Ab., 242. $265. A motion for a new trial, on a case or exceptions or otherwise, and an application for judgment on a special verdict or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and the judgment in the meantime suspended; and in that case they must be there heard in the first instance, and judgment there given. And when upon a trial the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at the general term, and in that case the application for judgment must be made at the general term. Every judgment rendered upon a verdict taken subject to the opinion of the court at a general term, may be reviewed by the court of appeals in the same manner and with the like effect as if exceptions had been duly taken at the proper time; provided it shall appear by the return, that questions of law were involved in the rendition of the judgment. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723. 18 N. Y., 230; 12 N. Y., 558; 11 N. Y., 481; 32 B., 570, 652; 24 B., CHAPTER IV. TRIAL BY THE COURT. Trial by jury, how waived. SEC. 266. Trial by jury, how waived. 267. On trial by the court, judgment to be given in twenty days. 269. Proceedings upon judgment on issue of law. $266. Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes. 14 B., 578; 17 How. P. R., 383; 5 How. P. R., 306; 9 Ab., 2; 7 Ab. 200; 3 Ab., 167. CHAP. XL Decision of in certain 267. Upon a trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and court to be the conclusions of law separately; and upon a trial of an issue of law the in writing decisions shall be made in the same manner, stating the conclusions of cases. law. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly. If upon motion, by either party, to a general or special term of the court, it shall be made to appear that the decision is unreasonably delayed, the court may make an order absolute for a new trial, or may order a new trial, unless the decision shall be filed by a time to be specified in the order. The costs of the former trial shall abide the event of the new trial. As amended by Laws of 1860, ch. 459; 1865, ch. 615. 10 N. Y., 599; 6 N. Y., 356; 13 Ab., 427; 10 Ab., 110; 8 Ab., 75; 4 Exceptions when $268. For the purposes of an appeal, either party may except to a decision on a matter of law arising upon such trial, within ten days after how and notice in writing, of the judgment, in the same manner and with the same taken. effect as upon a trial by jury; provided, however, that where the decision, filed under section two hundred and sixty-seven, does not authorize a final judgment, but directs further proceedings before a referec, or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto and make a case or exceptions as above provided in case of an appeal. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed in section three hundred and forty-eight. No finding of facts by the general term Finding of shall be required for the purpose of review in the court of appeals, and facts not if the judgment be reversed at the general term, it shall not be deemed the purpose to have been reversed on questions of fact, unless so stated in the judg ment of reversal; and in that case, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the court of appeals. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1860, ch. 459; 1867, ch. 781. required for of review. judgment 8269. On a judgment for the plaintiff upon an issue of law, the plaint- Proceed iff may proceed in the manner prescribed by the first two subdivisions of ings upon section two hundred and forty-six, upon the failure of the defendant to on issue of answer, where the summons was personally served. If judgment be for law. the defendant, upon an issue of law, and if taking of an account, or the proof of any fact be necessary to enable the court to complete the judg ment, a reference or assessment by jury may be ordered as in that section provided. Amended by Laws of 1851, ch. 479. 8 B., 78; 5 How. P. R., 31; 6 Ab., 14; 3 Ab., 188; 2 Ab., 382. PART III. All ipenes referable CHAPTER V. TRIAL BY REFEREES. SEC. 270. All issues referable by consent. 271. When reference may be compulsorily ordered. 272. Report to stand as decision of the court. 273. Referees, how chosen. $270. All or any of the issues in the action, whether of by consent. fact or of law, or both, may be referred, upon the written consent of the parties. When reference may be 32 B., 553; 9 B., 385; 17 How. P. R., 27; 7 How. P. R., 41, 259; 5 How. P. R., 341; 4 How. P. R., 290; 9 Ab., 2, 435; 7 Ab., 71; 5 Ab., 333; 4 Ab., 479; 3 Ab., 171; 19 Ab., 90. $271. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except rily order where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: compulso ed. Trial by referces. 1. Where the trial of an issue of fact shall require the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. 20 N. Y., 252; 16 N. Y., 419; 1 N. Y., 427; 32 B., 553; 22 B., 319; 16 B., 539; 9 B., 387; 19 How. P. R., 143; 18 How. P. R., 311; 11 How. P. R., 440; 10 How. P. R., 351; 9 Ab., 2; 7 Ab., 72; 4 Ab., 479; 25 N. Y., 205; 30 How. P. R., 68; 28 How. P. R., 290; 27 How. P. R., 37; 24 How. P. R., 186; 15 Ab., 304. S272. The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They shall have the same power to grant adjournments and to allow amendments to any pleadings, and to the summons, as the court upon such trial, upon the same terms and with the like effect. They shall have the same power to preserve order and punish all violations thereof, upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them, as for a contempt, for non-attendance, or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal under section 268, and they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the referee is to report the facts, the report shall have the effect of a special verdict. |