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and two hundred and seventy-one. An issue of fact in an

CHAP. XI 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 two hundred and sixty-six, or a reference be ordered as provided in sections two hundred and seventy, and two hundred and seventy-one.

As amended by Laws of 1852, ch. 392.
5 N. Y., 393; 26 B., 361; 19 B., 203; 4 How. P. R., 423; 11 Ab., 246;

10 Ab., 107; 9 Ab., 2; 7 Ab., 200; 3 Ab., 149. $ 254. Every other issue is triable by the court, which, Issues,

how triod. 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 two hundred and seventy, and two hundred and seventy-one.

5 N. Y., 393; 27 B., 192, 336; 26 B., 361; 8 B., 575; 11 Ab., 246; 10

Ab., 107; 7 Ab., 1, 71, 200; 4 Ab., 180; 3 Ab., 127, 149, 170, 478;
16 How. P. R., 294; 11 How. P. R., 440; 10 How. P. R., 384; 6

How. P. R., 271. $ 255. All issues of fact, triable by a jury or by the court, All issner must be tried before a single judge. Issues of fact in the tried by a supreme court, must be tried at a circuit court when the trial single judge 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 on the calendar.

Amended by Laws of 1851, ch. 479; 1852, ch. 392.

27 B., 192; 2 Ab., 164. S 256. At any time after issue, and at least fourteen days Notice of before the court, either party may give notice of trial. The note of

issue. 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 Proceed

ings in first trial, and one note of issue from either party, and the action judicial shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In the same district the courts may direct the employment of Stenographa stenographer, in such cases as appear to them to require it, employed. and may order the expense occasioned thereby to be paid by the parties, not exceeding, however, five dollars a day to each party.

Amended by Laws of 1858, ch. 306; 1859, ch. 428; 1860, ch. 459;

1863, ch. 392.
18 B., 597; 21 How. P. R., 88; 8 How. P. R., 249; 7 How. P. R., 489;

9 Ab., 2; 7 Ab., 94; 6 Ab., 14; 1 Ab., 48. $ 257. The issues on the calendar shall be disposed of in Order of the following order ; unless, for the convenience of parties, or of lones the dispatch of business, the court shall otherwise direct:

calendar.

district.

on the

PART IU.

1. Issues of fact to be tried by a jury;
2. Issues of fact to be tried by the court;
3. Issues of law.

8 B., 575; 11 Ab., 246.

CHAPTER III.

TRIAL BY JURY.

copy of

summons,

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. 264. Entry of verdict and judgment. Review of trial.

265. Motions for new trial, &c. Either $ 258. Either party giving the notice, may bring the issue party mave to trial, and in the absence of the adverse party, unless the to trial. 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. 8., 432; 2 8. S. C. 142.
Plaintiff to $ 259. When the issue shall be brought to trial by the
Comari with plaintiff

, he shall furnish the court with a copy of the summons and pleadings with the offer of defendant, if any shall pleadings. 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.

3 Ab., 151. General $ 260. A general verdict is that by which the jury prodedipecial nounce generally upon all or any of the issues, either in favor detined. of the plaintiff or defendant. A special verdict is that by

which the jury find the facts only, leaving the judgment to the court.

23 N. Y., 541; 27 B., 192; 7 Ab., 91. Verdict in $ 261. In an action for the recovery of specific personal recovery or 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

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.

&c.

CHAP. XL In every action for the recovery of money only, or specific When in real property, the jury, in their discretion, may render a gene- recovery or 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 court may thereon. The special verdict or finding shall be filed with direct sper

cial finding. 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,

151.

ral verdict, former to

verdict.

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$ 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.

control. $ 263. When a verdict is found for the plaintiff in an action for actions for the recovery of money, or for the defendant when a set-off covery of

money only for the recovery of money is established, beyond the amount jury to of the plaintiff's claim as established, the jury must also assess datages. 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 of 1851, ch. 479.

6 How. P. R., 145; 3 Ab., 108. $ 264. Upon receiving a verdict, the clerk shall make an Entryçf 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.

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. Motions for

$ 265. A motion for a new trial, on a case or exceptions or new trials. otherwise, and an application for judgment on a special ver

dict 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 judg-
ment 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 applica-
tion 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.,

274; 14 B., 92; 21 How. P. R., 279; 20 How. P. R., 258; 19 How.
P. R., 30; 17 How. P. R., 123, 454; 14 How. P. R., 59, 68; 12
How. P. R., 286; 11 How. P. R., 285, 465; 10 How. P. R., 400,
453; 7 How. P. R., 10; 12 Ab., 165; 9 Ab., 91, 139; 8 Ab., 2; 4
Ab., 421; 1 Ab., 462.

CHAPTER IV.

TRIAL BY THE COURT.
SEC. 266. Trial by jury, how waived.

267. On trial by the court, judgment to be given in twenty days.
268. Exceptions, how and when taken.

269. Proceedings upon judgment on issue of law. Trial by

S 266. Trial by jury may be waived by the several parties, jury, how waived.

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. Decision of $ 267. Upon a trial of a question of fact by the court, its court to be decision shall be given in writing, and shall contain a state

ment of the facts found, and the conclusions of law sepacases.

rately; and upon a trial of an issue of law the decision shall

CHAP. XI. be made in the same manner, stating the conclusions of 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.

As amended by Laws of 1860, ch. 459.
10 N. Y., 599; 6 N. Y., 356; 13 Ab., 427; 10 Ab., 110; 8 Ab., 75;

4 Ab., 479; 17 How. P. R., 283; 14 How. P. R., 357, 428; 6 How.

P. R., 294; 5 How. P. R., 47. $268. For the purposes of an appeal, either party may except Exceptions to a decision on a matter of law arising upon such trial, with- when taken in ten days after notice in writing, of the judgment, in the same manner, and with the same effect, as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of 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 Finding of the general term shall be required for the purpose of review quired for in the court of appeals, and if the judgment be reversed at of reviews the general term, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment 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.
13 N. Y., 308, 342, 346 ; 12 N. Y., 558, 588; 6 N. Y., 461; 5 N. Y., 385;

29 B., 368; 21 B., 397; 19 B., 165 ; 18 B., 347; 15 B., 52, 553; 10
B., 48; 20 How. P. R., 282; 17 How. P. R., 383; 16 How. P. R.,
227; 15 How. P. R., 61 ; 14 How. P. R., 68; 13 How. P. R., 148;
12 How. P. R., 486, 568; 7 How. P. R., 10, 273 ; 4 How. P. R., 327;
8 Ab., 315, 430; 4 Ab., 310; 3 Ab., 78, 371; 2 Ab., 204; 1 Ab.,

462; 1 Hilt., 203. $ 269. On a judgment for the plaintiff upon an issue of Proceedlaw, the plaintiff may proceed in the manner prescribed by judgment the first two subdivisions of section two hundred and forty-twissue of six, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for 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 judgment, a reference or assessment by jury may be ordered, as in that section provided.

As amended by Laws of 1851, ch. 479.
8 B., 78; 5 How. P. R., 31; 6 Ab., 14; 3 Ab., 188; 2 Ab., 382.

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