TITLE VIII. Of the Trial and Judgment in Civil Actions. CHAPTER I. Judgment upon failure to answer. II. Issues and the mode of trial. III. Trial by jury. IV. Trial by the court. V. Trial by referees. VI. The manner of entering judgment. CHAPTER I. Judgment upon Failure to Answer. 245. A judgment is the final determination of the rights of the parties in the action. 246. Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In any action arising on contract, for the recovery of money only, the plaintiff may file with the clerk proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the provisions of section 130, and that no answer has been received: The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such actions from cis examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action he shall be entitled to five days' notice of the time and place of such assessment. Where the defendant by his answer in any such action, shall not deny the plaintiff's claim, but shall set up a counterclaim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim, over the said counterclaim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counterclaim, which statement shall be annexed to and be a part of the judgment roll. 2. In other actions the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint. 3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. 244. If a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, Gither in or out of the court, for judgment thereon, and judgment may be given accordingly. CHAPTER II. Issues and the Mode of Trial. 2248. Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. 249. An issue of law arises, 1. Upon a demurrer to the complaint, answer or reply, or to some part thereof. ? 250. An issue of fact arises, 1. Upon a material allegation in the complaint controverted by the answer; or, 2. Upon new matter in the answer controverted by the reply; or, 3. Upon new matter in the reply, except an issue of law is joined thereon. 2251. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct. 2 252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. 2253. An issue of law must be tried by the court, unless it be referred, as provided in sections 270 and 271. An issue of fact, in an action for the recovery of money only, or of specific, real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section 286, or a reference be ordered as provided in sections 270 and 271. 2254. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271. & . All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court must be tried at a circuit court when the trial is by jury, otherwise at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise direct, have preference in the calendar. 256. At any time after issue, and at least fourteen days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least eight days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon the calendar according to the date of the issue. In the first judicial district there need be but one notice of trial, and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In every action in which issue of fact is now joined, and the action is now placed upon the calendar of the supreme court of the first judicial district, or of the superior court of the city of New York, or of the court of common pleas, for the city i county of New York, the party who shall have h note of issue shall, as a condition precedent |