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SECTION 1218. When judgment cannot be taken against infant.

1219. When a defendant in default is entitled to notice.
1220. When action may be severed, if issues of law and issues of fact presented.
1221. Judgment how taken, after trial of issues of law and issues of fact, in the

same action.
1222. Id.; after trial of issue of law only.
1223. Proceedings upon application under the last two sections.
1224. Id. ; upon interlocutory judgment, affirmed on appeal to the general term.
1225. Judgment, after trial by jury of specific questions of fact.
1226. Id.; after reference to determine specitic questions of fact
1227. Id. ; upon motion for new trial, heard at general term.
1228. Id.; upon trial by court or referee of the whole issue of fact.
1229. In matrimonial causes, judgment can be rendered only by the court.
1230. Final judgment upon decision or report awarding interlocutory judgment,

etc.
1231. Id. ; how final judgment entered and settled in certain cases.
1232. Interlocutory reference or inquisition ; how reviewed.
1233. Motion for judgment upon a special verdict, etc.
1234. Id. ; upon verdict subject to opinion of court.
1235. Interest on verdict, etc., to be included in recovery.
1236. Clerk to keep judgment-book; judgment to be entered therein.
1237. Judgment-roll to be filed; of what it consists.
1238. Id. ; by whom prepared.
1239. Time of filing judgment-roll to be noted.
1240. When a judgment may be enforced by execution.
1241. When a judgment may be enforced by punishment for disobeying it.
1242. Real property; how sold. Effect of conveyance.
1243. Security upon sale by referee.
1244. Conveyance to state name of party.

§ 1212. Judgment by default in certain actions on contract; how taken. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.) In an action specified in section four hundred and twenty of this act, where the summons was personally served upon the defendant, and a copy of the complaint, or a notice stating the sum of money for which judgment will be taken, was served with the summons; or where the defendant has appeared, but has made default in pleading, the plaintiff may take judgment by default, as follows:

1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice, and also proof, by affidavit, that the defendant has not appeared; whereupon the clerk must enter final judgment in his favor.

2. If the defendant has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only, and also proof, by affidavit, of the default; whereupon the clerk must enter final judgment in his favor.

If the defendant has made default in appearing or pleading, and the case is not one where the clerk can enter final judgment, as prescribed in either of the foregoing subdivisions of this section, the plaintiff must apply to the court for judgment, as prescribed in section twelve hundred and fourteen of this act.

§ 1213. Amount of judgment in such cases; how determined. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows:

1. If the complaint is verified, the judgment must be entered for the sum, for which the complaint demands judgment; or, at the plaintiffs option, for a smaller sum; and if a computation of interest is necessary, it may be made by the clerk. 2. If the complaint is not verified, the clerk must assess the amount due to the plaintiff, by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action, stated in the complaint; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action, stated in the complaint. If an instrument specified in this subdivision, has been lost, so that it cannot be produced to the clerk, he must take proof its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment, and the oral proof, if any, taken thereupon.

§ 1214. Application for judgment by default; when necessary.Where the summons was personally served upon the defendant, within the state, and he has made default in appearing, or where the defendant has appeared, but has made default in pleading; and the case is not one where the clerk can enter final judgment, as prescribed in the last two sections, the plaintiff may apply to the court, or to a judge or justice thereof out of court

, for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons; or if the default was in pleading, proof of appearance, and also, if a copy of the complaint was de. manded, proof of service thereof, upon the defendant's attorney; and in either case, proof by affidavit, of the default which entitles him to judgment. If one or more of the defendants have appeared, and one or more defendants iure failed to appear, then the application for judgment must be made to the court, unless the defendants who have appeared consent to the making of such application to a judge or justice out of court. [AM'D BY CH. 147 of 1900. In effect Sept. 1, 1900.] $ 1215. Proceedings on such an application. [AMENDED BY CI, 416

. OF 1877.] The court must thereupon render the judgment, to which the plaintiff is entitled. It may, without a jury or with a jury, if one is present in court, make a computation or assessment, or take an account, or proof a fact, for the purpose of enabling it to render the judgment, or to carry. into effect; or it may, in its discretion, direct a reference, or a writ of inquiry for either purpose; except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages must be a certained by means of a writ of inquiry. "Where a reference or a writ of inquiry is directed the court may direct, that the report or inquisition be returned to the court for its further action; or it may, in its discretion, except where special provision is otherwise made by law, omit that direction; in which case, final judgment may be entered by the clerk, in accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application.

$ 1216. Application for judgment, in case of service by publication, etc. Where the sommons was served upon the defendant without the state, or otherwise than personally

t the defendant does not demand a copy of the complaint or plead, as the case requires, wi.hin twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the complaint. Upon such an application he must file proof that the service is complete, and proof, by affidavit, of the defendant's default. The court maist require proof of the cause of action, set forth in the complaint to be made, either bfire the court or before a referee appointed for that purpose except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages inust be ascertained by means of a writ of inquiry, as prescribed in the last section. I the lefendant is a non-resident, or a foreign corporation, the court must require the ilaintiff, or his agent or attorney, to be examined on oath respecting any payments to 1. plaintiff, or to any one for his use, on account of his demand, and must render the jilzinent to which the plaintiff is entitled. But before rendering judgment the court may, in any case, in its discretion, require the plaintiff to file an undertaking to abide the order of the court touching the restitution of any estate or effects which may be directed by the julgment to be transferred 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 defense. (AM'D BY CH. Úsz ov 1893. In effect Sept. 1, 1895.]

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$ 1217. Attachment and undertaking for restitution, required in certain actions. [AMENDED BY CH. 416 OF 1877.] A judgment shall not be rendered for a sum of money only, upon an application made pursuant to the last section, except in an action specified in section 635 of this act. Where the defendant is a non-resident, or a foreign corporation, and has not appeared, the plaintiff, upon the application for judgment in 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 1216, if one has been required.

$ 1218. When judgment cannot be taken against infant. [AMENDED PY CI. 512 of 1879.] A judginent by default shall not be taken against an infant defendant, until twenty days have expired since the appointment of a guardian ad litem for him.

$ 1219. When a defendant is entitled to notice. [AMENDED BY CH. 542 OF 1879.] A defendant, against whom judgment is taken, pursuant to the foregoing sections of this article, is entitled to notice as follows:

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, 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.

$ 1220. When action may be severed, if issues of law and issues of fact presented. Where an issue of law and an issue of fact arise, with respect to different causes of action, set forth in the complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in maintaining the action, or a defence or counter-claim, with respect to the other causes of action, or in the 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.

$ 1221. Judgment how taken, after trial of issues of law and issues of fact, in the same action. [AMENDED BY CH. 416 of 1877.] Where one or more issues of law, and one or more issues of fact, arise in the same action, and all the issues have been tried, final judgment upon the whole issue must be taken as follows:

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1. Where an application must be made to the court, for judgment 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 wiihout 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. Id.; after trial of issue of law only. [AMENDED BY Ch. 416 OF 1877 AND BY Ch. 542 OF 1879.] Final judgment upon an issue of law, where no issue of fact remains to be tried, and final judgment has not been directed as precribed* in section ten hundred and twenty-one of this act, may be entered upon application to the court, or by the clerk in an action specified in section four hundred and twenty of this act.

$ 1223. Proceedings upon application under the last two sections. [AMENDED BY CH. 416 of 1877.] Upon an application, by either party, to the court, for final judgment, after the decision of an issue of law, as prescribed in the last two sections, the court has the powers specified in section 1215 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.

§ 1221. Proceedings upon interlocutory judgment, etc., affirmed.–At a term of the appellate division of the supreme court. When an order or judgment is wholly or pirtly affirmed upon an appeal to the appellate division of the supreme court and no issue of fact remains to be tried, the appellate division may, in its discretion render final judgment, unless it permits the appellant to amend or plead over. (AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.)

$ 1225. Judgment after trial by jury of specific questions of fact. In an action triable by the court, where one or more specific questions of fact, arising upon the issues, have been tried by a jury, judgment may be taken, upon the application of either party, as follows:

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. Id.; after reference to determine specific questions of fact Where a reference has been made, to report upon one or more specific questions of fact, arising upon the issue, and the remaining issues have been tried, judgment must be taken, upon the application of either party, as prescribed in section 1221 of this act.

s 1227. Judgment upon motion for a new trial, heard by the appellate division of the supreme court. Where a motion for a new trial, made at the first instance at a term of the appellate division of the supreme court 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. (AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.)

*So in the original.

$ 1228. Id. ; upon trial by court or referee of the whole issue of fact. [AMENDED BY CH. 542 of 1879.) Where the whole issue is an issue of fact, which was tried by a referee, the report stands as a decision of the court. Except where it is otherwise expressly prescribed by law, judgment upon such a report, or upon the decision of the court, upon the trial of the whole issue of fact without a jury, may be entered by the clerk, as directed therein, upon filing the decision or report.

$ 1229. In matrimonial causes, judgment can be rendered only by the court. In an action to annul a marriage, or for a divorce or separation, judgment cannot be taken, of course, npon a referee's report, as prescribed in the last section, or where the reference was made, as prescribed in section 1215 of this act. Where a reference is made in such an action, the testimony and 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.

$ 1230. Final judgment upon decision or report awarding interlocutory judgment, etc. [AMENDED BY CH. 416 OF 1877.] In a case not provided for in the foregoing sections of this article, where the decision, upon a trial by the court, without jury, or the report, upon a trial by a referee directs an interlocutory judgment to be entered, and the party afterward becomes entitled to a final judgment, an application for the latter may be made, as upon a 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.

$ 1231. Id. ; how final judgment entered and settled in certain cases. In an action triable by the court, an interlocutory judgment rendered upon a default in appearing or pleading, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment, to which the party will be entitled. It may also direct, that the final judgment be settled by a judge, or a referee. In 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.

$ 1232. Interlocutory reference or inquisition ; how reviewed. Where a reference, or a writ of inquiry, directed as prescribed in section 1015, or section 1215, of this act, has been executed, either party may apply for an order, directing a new hearing, or a new writ of 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. Motion for judgment upon a special verdict, etc. A motion for judgment, upon a special verdict, may be made by either party; and must, in the first instance, be heard and decided, at à term held by one judge.

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