CHAPTER X. Trials; Including Jurors and Juries. TITLE I. Trials generally; including exceptions and motion for a new trial. TITLE II-Trials without a jury. TITLE III.-Trial jurors, except in New York and Kings counties; 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 attendance. TITLE V-Trial by jury. 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. SEC. 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. [Re pealed.] 974. Counter-claim to be deemed an action, within the foregoing sections. 976. Trial before one judge; supreme court. Calendar to be prepared. SEC. 978. Issues, how arranged. Order of disposition at a jury term. 981. What papers to be furnished on trial, and by whom. § 963. Issues defined; different kinds of issues. The issues, treated of in this chapter, are those only which are presented by the pleadings. An issue arises where a fact, or a conclusion of law, is maintained by one party, and controverted by the other. Issues are of two kinds: 1. Of law; and 2. Of fact. From Co. Proc. § 248. § 964. When issues of law arise; when issues of fact arise. An issue of law arises only upon a demurrer. arises. in either of the following cases: An issue of fact 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. From Co. Proc. §§ 249 and 250. § 965. Issues to be judicially examined by a trial. An issue, either of law or of fact, must be tried as prescribed in this chapter, unless it is disposed of as prescribed in chapter sixth of this act. From Co. Proc. § 252. Am'd by ch. 542 of 1879. § 966. Order of trial, where issues of law and of fact arise in the same action. Where an issue of law and an issue of fact arise in one action, the issue of law must be first disposed of, except as otherwise prescribed in the next section. From Co. Proc. § 251. Am'd by ch. 416 of 1877. § 967. But court may direct the order, etc., of disposition of the issues. A separate trial, between the plaintiff and one or more defendants, of some or all of the issues of fact, or one trial of some or all of the issues of law, or a change in the order of disposition of the issues, may be directed by the court, in its discretion. Such a direction may 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. From Co. Proc. § 251 and last clause of 258. Am'd by ch. 416 of 1877. See $521. $ 968. What issues of fact are triable by a jury. In each of the following actions, an issue of fact must be tried 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. 2. An action of ejectment; for dower; for waste; for a nuisance or to recover a chattel. From Co. Proc. § 253. Am'd by ch. 416 of 1877. § 969. What issues are triable by the court. 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. From Co. Proc. §§ 253 and 254. § 970. Order for trial by jury, of specific questions of fact, when of right. 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 such questions so stated, is conclusive in the action, unless the verdict is set aside, or a new trial is granted. From Co. Proc. § 254. Am'd by ch. 416 of 1877; ch. 208 of 1891 and ch. 188 of 1892. See rule 31 (Sup. Ct.). § 971. Id.; when discretionary. 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 ог 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. From Id. Am'd by ch. 416 of 1877. § 972. Trial of the remainder of the issues. 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. From Id. Am'd by ch. 416 of 1877. See rule 31 (Sup. Ct.). § 973. Mode of trial, when complaint demands alternative judgment. Repealed by ch. 416 of 1877. § 974. Counter-claim to be deemed an action, within the foregoing sections. Where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact, arising thereupon, is the same, as if it arose in an action, brought by the defendant, against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. Am'd by ch. 416 of 1877. § 975. Immaterial issues need not be tried. An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried. § 976. Trial before one judge; supreme court. 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. In the supreme court, an issue of fact triable by jury must be tried at a trial term thereof, and an issue of fact triable by the court may be tried at a trial term or a special term of the supreme court as prescribed in the general rules of practice. Except in the first and second judicial districts an issue of law may be brought on and tried at any term of court as a contested motion. From Co. Proc. § 255. Am'd by ch. 946 of 1895 and ch. 569 of 1900. § 977. Notice of trial and note of issue; calendar to be prepared. 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 calendar and have the necessary copies ready for distribution at least five days before the commencement of the term. In the counties of New York, Kings, Queens, Richmond, Albany, Erie, Monroe, Onondaga, and Westchester, where a party has served a notice of trial, and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a succeeding term; and the action must remain on the calendar until it is disposed of. From Co. Proc. § 256, as amended by ch. 431 of 1876, § 9. Am'd by ch. 416 of 1877; ch. 96 of 1882; ch. 565 of 1896; ch. 70 of 1898; ch. 18 of 1899, and ch. 51 of 1903. In effect Sept. 1, 1903. See 88 789-795, 798, 980. § 978. Issues, how arranged. Order of disposition at e jury term. The issues on the calendar must be arranged by the clerk, in the foilowing order: 1. Issues of fact. 2. Issues of law. Where a jury is in attendance, the issues must be disposed of in the same order; unless, for the convenience of parties, or the dispatch of business, the judge holding the term otherwise directs. From Co. Proc. § 257. Am'd by ch. 416 of 1877. See $8 789-795 § 979. Id.; when a jury does not attend. Where a jury is not in attendance, issues of law have a preference over issues of fact; unless the judge holding the term otherwise directs. From Co. Proc. § 255. § 980. Either party may bring issue to trial. Either party, who has served the notice, may bring the issue to trial; and, in the absence of the adverse party, unless the judge holding the term, for good cause, otherwise directs, may proceed with the cause, and take a dismissal of the complaint, or a verdict, decision or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified. From Co. Proc. § 258. Am'd by ch. 416 of 1877. See rules 23 and 28 (Sup. Ct.). § 981. What papers to be furnished on trial and by whom. Where the issue is brought to trial by the plaintiff, he must furnish the court with copies of the summons and pleadings, and of the offer, if any has been made. Where the issue is brought to trial by the defendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant. From Co. Proc. § 259. See rule 19 (Sup. Ct.). |