§ 1000. When and how exceptions, taken upon a jury trial, heard by the appellate division.

Upon the application of a party who has taken one or more exceptions, the judge presiding at a trial by jury, may in his discretion, at any time during the same term, direct an order to be entered that the exceptions so taken be heard in the first instance by the appellate division of the supreme court; and that judgment be suspended in the meantime. At any time before the hearing of the exceptions the order may be revoked or modified, upon notice, in court or out of court, by the judge who made it, or it may be set aside for irregularity by the court at any term thereof. Unless it is so revoked or set aside, the exceptions must be heard upon a motion for a new trial, which must be decided by the appellate division. The motion is deemed to have been made when the order was granted; and either party may notice it for hearing at a term of the appellate division upon the exceptions.

Am'd by ch. 416 of 1877; ch. 29 of 1882 and ch. 946 of 1895.

§ 1001. Motion for new trial by the appellate division when trial was by court or referee.

Where the decision or report, rendered upon the trial of an issue of fact by the court, without a jury or by a referee, directs an interlocutory judgment to be entered; and further proceedings must be taken before the court or a judge thereof, or a referee, before a final judgment can be entered, a motion for a new trial, upon one or more exceptions, may be made at a term of the appellate division of the supreme court, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The time within which the party must except, for that purpose, to a ruling of law made upon such a trial, by the judge or the referee, after the close of the testimony, is ten days after service of a copy of the decision or report, and notice of the entry of the interlocutory judgment thereupon.

From Co. Proc. § 268.

Am'd by ch. 946 of 1895.

§ 1002. When motion for new trial to be made at special term. Restrictions thereupon.

In a case not specified in the last three sections, a motion for a new trial must in the first instance be heard and decided at the special term but where it is founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment, and it cannot be heard at a special term held by another judge unless the judge who presided at the trial is dead or his term of office has expired, or he is disqualified for any reason, or he specifically directs the motion to be heard before another judge. And a trial by a referee cannot be reviewed by a motion for a new trial founded upon such an allegation except in a case specified in the last section.

From Co. Proc. § 265.

Am'd by ch. 403 of 1884 and ch. 202 of 1890.

§ 1003. Application of this article to trials of specific questions by jury; special provisions applicable thereto. The provisions of this article, relating to the proceedings to review a trial by a jury, are applicable to the trial, by a jury of one or more specific questions of fact, arising upon the issues, in an action triable by the court. But, except in a case specified in section nine hundred seventy of this act, a new trial may be granted, as to some of the questions so tried, and refused as to the others; and an error in the dmission or exclusion of evidence, or in any other ruling or direction of

the judge, upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion, that substantial justice does not require that a new trial should be granted. Where the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, taken at the trial, to be heard at a term of the appellate division of the supreme court, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. Am'd by ch. 946 of 1895.

See § 999.

§ 1004. Motion for new hearing, after trial of specific questions by a referee.

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 term, at any time before the hearing of a motion for final judgment, or the trial of the remaining issues of fact. The motion must be made upon affidavits, unless the court, or a judge thereof, directs a case to be prepared and settled.

1005. Final judgment, etc., not stayed by motion for a new trial. Motion may be heard afterwards.

The entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception, the preparation or settlement of a case, or a motion for a new trial, unless an order for such a stay is procured and served; and the entry, collection, or other enforcement of a judgment does not prejudice a subsequent motion for a new trial. Where a new trial is granted, the court may direct and enforce restitution as where a judgment is reversed upon appeal.

From ch. 128 of 1833, § 1 (4 Edm. 529).

trial.

1006. When exception not to prejudice motion for new

The taking of an exception, upon a trial by a jury, or the statement thereof in a case, as prescribed in this article, does not prejudice a motion for a new trial, on the ground that the verdict was contrary to evidence; but such a motion may be made, before or after the hearing of the exception; or, in the discretion of the court before which the exception is heard, at the time of the hearing.

From 2 R. S. 422, Part 3, ch. 7, tit. 4, § 76 (2 Edm. 440).

§ 1007. Notes of stenographer may be treated as minutes of the judge.

The notes of an official stenographer or assistant-stenographer, taken at a trial, when written out at length may be treated, in the discretion of the judge, as minutes of the judge upon the trial for the purposes of this article. When by provision of law a justice of the supreme court of this State, by his order, in writing, duly entered in a county clerk's office in the judicial district of said justice apportions the stenographer's salary among the several counties of said judicial district, or requires the duplication of any stenographic notes taken in said judicial district, no notice of the application for said order shall be adjudged necessary upon any board of supervisors in said judicial district, and the liability for compensation for such services shall be deemed fixed upon the performance of the work.

Am'd by ch. 218 of 1883 and ch. 277 of 1884.

See § 83, 84

TITLE II.

Trials without a jury.

SEC. 1008. If trial by jury waived, action must be tried by the court. 1009. Trial by jury; how waived.

1010. Decision upon trial by the court, when to be filed; consequence of failure.

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. [New.]

1024. Qualifications of a referee.

1025. Several referees may be appointed.

1026. Proceedings regulated where there are several referees.

§ 1008. If trial by jury waived, action must be tried by the court.

In an action triable by a jury, if the parties waive the trial, by a jury, of the issue* of fact, the action must be tried by the court, without a jury; unless a reference is directed, in a case prescribed by law. But such an action, other than to recover damages for breach of a contract, cannot be tried by the court, without a jury, unless the 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.

From Co. Proc. §§ 253, 254, 266.

Am'd by ch. 416 of 1877.

§ 1009. Trial by jury; how waived.

A party may waive his right to the trial of the issue of fact, 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 for the party.

3. By an oral consent in open court, entered in the minutes.

4. By moving the trial of the action, without a jury; or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial.

From Co. Proc. § 266.

Am'd by ch. 416 of 1877.

§ 1010. Decision upon trial by the court, when to be filed; consequence of failure.

Upon a trial, by the court, of an issue of fact or of law, its decision, in writing, must be filed in the clerk's office, within twenty days after the

*So in the original.

final adjournment of the term, where the issue was tried. If it is not so filed, either party may move, at a special term, for a new trial upon that ground. If the decision has not been filed when the motion is heard, the court must make an order for a new trial, either 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.

From Co. Proc. § 267.

§ 1011. Reference by consent, when and how made. Except in a case specified in the next section, the whole issue, or any of the issues in an action, either of fact or of law, must be referred, upon the consent of the parties, manifested by a written 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. If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise.

From Co. Proc. §§ 270 and 273.

Am'd by ch. 542 of 1879.

See rules 30, 79 (Sup. Ct.).

§ 1012. Qualification of the last section.

But a reference shall not be made, of course, upon the consent of the parties, in an action to annul the marriage, or for a divorce or a separation; or an action against a corporation, to obtain a dissolution 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. If the referee, thus designated, refuses to serve, or if a new trial of an action tried by a referee, so designated, is granted, the court must, upon the application of either party, appoint another referee. Am'd by ch. 317 of 1898.

See rule 72.

§ 1013. Compulsory reference for the trial of issues; in what cases it may be made.

The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decision of difficult questions of law. In an action, triable by the court, without 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.

From Co. Proc. § 271.

§ 1014. Proceedings where the reference is for trial of part of the issues.

Where a reference is made, as prescribed in the last section to report upon a specific question of fact, involved in the issue, and the determination of one or more other issues is necessary, in order to enable the court to render judgment, they must be tried, either before 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. Where they are tried by a jury, application for a judgment must be made upon the verdict and the report.

From Co. Proc. § 272.

See 972, 1226.

§ 1015. Compulsory reference upon questions incidentally arising.

The court may likewise of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the information of the court; and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion or otherwise, except upon the pleadings.

From Co. Proc. § 271.

See 1232, 3160.

§ 1016. Referee to be sworn.

A referee, appointed as prescribed in either of the foregoing sections of this title, must, before proceeding to hear the testimony, be sworn faithfully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to make a just and true report, according to the best of his understanding. The oath may be administered by an officer specified in section eight hundred and forty-two of this act. But where all the parties, whose interests will be affected by the result, are of age, and present, in person or by attorney, they may expressly waive the referee's oath. The waiver may be made by written stipulation, or orally. If it is oral, it must be entered in the referee's minutes.

From 2 R. S. 384, Part 3, ch. 6, tit. 6, § 44 (2 Edm. 399).

See 721, sub. 12.

See also §§ 1011, 1013, 1015, 1215.

§ 1017. Witnesses may be subpoenaed.

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.

From Id., § 45.

§ 1018. General powers of a referee, upon a trial.

The trial, by a referee, of an issue of fact, or of an issue of 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.

From Co. Proc. § 272.

See 8 723, 993.