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MOTION FOR A NEW TRIAL.
COUNTIES ; MODE OF SELECTING THEM, AND OF
PROCURING THEIR ATTENDANCE.
TIES ; MODE OF SELECTING THEM, AND OF PRO
CURING THEIR ATTENDANCE.
RELATING TO EMBRACERY AND OTHER ACTS OF
2. The place of trial.
the issues. 164. When issues of law arise ; 974. Counterclaim to be deemwhen issues of fuct arise.
ed an action, within the 965. Issues to be tried.
foregoing sections, 968. Order of trial, where issues 975. Immaterial issues need of law and of fact arise in
not be tried. the same action.
976. What issues to be tried be. 97. But court may direct the
fore one judge ; regulaorder, etc., of disposition
tion of trial in the stie of the issues.
preme court. 968. What issues of fact are 977. Notice of trial and note of triable by a jury.
issue. 949. What issues are triable by 978. Order of disposition of inthe court.
sues at a jury term. 970, Order for trial by jury, of 979. Id. ; when a jury does not specific questions of fact,
attend. when of right.
980. Either party may bring is971. Id.; when discretionary.
sue to trial.
on trial, and by whom. 963. 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. Or law; and 2. Of fact.
S964. An issue of law arises only upon a demurrer. An issue of fact arises, in either of the following cases :
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.
7 Misc. 642
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.
$ 965. [ Am’d 1879.) 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.
§ 966. [Am'd 1877.) 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.
$ 987. [-1m'd 1877.) 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. 96 N.Y. 108. $ 968. (Am'd 1877.) In each of the following actions, an 52 N. Y. Sup. issue of fact must be tried by a jury, unless a jury trial is S.;66; Id. 355. waived, or a reference is directed: 82 Hun, 970. 105 N. Y. 319; 109 Id. 202; 25 N. Y. State Rep. 52; Id. 271; 12 N. Y. State
Rep. 512; 7 App. Div, 317.
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. 52 N.Y.Sup $ 969. An issue of law, in any action, and an issue of fact er.Ct. (J. & in an action not specified in the last section, or wherein pro9.)855. vision for a trial by a jury is not expressly made by law, must
be tried by the sourt, unless a reference or a jury trial is directed.
$ 970. [Am'd 1877, 1891, 1892.) Where a party is entitled 131 N Y. 215. by the constitution, or by express provision of law, to a 81 Hun, 6.
trial by a jury, of one or more issues of fact, in an action 82 Hun, 439. not specified in section nine hundred and sixty-eight of this
act, he may apply upon notice, to the court for an order, di. 8 11 n. 109: recting all the questions arising upon those issues, to be dis
tinctly and plainly stated for trial accordingly. Upon the bearing 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 jura, 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. 109 N.Y. 5.
$ 971. [.4m'd 1877.] 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 or more questions of fact, arising upon the issues, be tried by a jury, and may cause those ques
tions to be distinctly and plainly stated for trial accordingly. 07 N.Y. 1. $ 972. [Am'd 1877.] If the questions, directed to be tried
129 N.Y. 274.
157 N.Y 236.
by a jury, as prescribed in the last two sections, do not em
109 N.Y.5. brace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee.
$ 973. [Repealed 1977.]
S 974. (Amd 1877.] Where the defendant interposes a counterclaim, and thereupon demands an affirmative judg
10 Daly, 602 nent against the plaintiff, the mode of trial of an issue of fact, 355,
23 App. Div. 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 counterclaim, and demanding the same judgment.
$ 975. An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.
6976. [Am'd 1895, amendment to take effect January 1, G Misc. 117. 1896.) 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, or an issue of law, may be tried at a trial term, or a special term, of the supreme court, as prescribed in the general rules of practice. $ 977. Notice of trial; note of issue.
(Am'd 1877, 21984 Consol. 1882, 1896, 1898, 1899, amendment to take effect September 1, 6 Civ. Pro. 1899.] At any time after the joinder of issue, and at least a spp. Div. fourteen days before the commencement of the term, either 370. party may serve a notice of trial. The party serving the 31 1a. 305. 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 naturo 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 clork 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 and Onondaga, where a party bas 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.
& 978. [Am'd 1877.] The issues on the calendar must be arranged by the clerk, in the following 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.
$ 979. 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.
$ 980. (Am'd 1877.] Either party, who has served the potice, may bring the issue to trial; and, in the absence of the Rep. 102. adverse party, unless the juilge 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
24 N. Y.Stato
judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified.
§ 981. 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 bas 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.
THE PLACE OF TRIAL. ¿982. Certain actions to be tried,
change; proceedings the where the subject thereof
reupon. is situated.
ê 987. When court may change 983. Other actions, where the
the place of trial. cause thereof arose.
988. Effect of changing the 984. Other actions, according
_place of trial. to the residence of the 989. Effect of order changing parties.
place of trial. 985. Place of trial, if proper 990. Issues of law, where tri. county not designated.
able, 986. Defendant may demand 991. This article applicable only
to the supreme court. 32 Hun, 71.
982. Each of the following actions must be tried in the 88 N. Y. 258; county, in which the subject of the action, or some part there92 Id. 398. of, is situated : an action of ejectment; for the partition of 19 Week.
real property ; for dower; to foreclose a mortgage upon real Dig. 552. 96 N.Y. 383. property, or upon a chattel real; to compel the determination 43 Hun, 162; of a claim to real property ; for waste; for a nuisance ; or 69 Id. 463. to procure a judgment, directing a conveyance of real prop32 Id. 39. erty; and every other action to recover, or to procure a
judgment, establishing, determining, defining, forfeiting, annulling, or otherwise affecting, an estate, right, title, lien, or other interest, in real property, or a chattel real. But where all the real property, to which the action relates, is situated without the state, the action must be tried, as prescribed in
section nine hundred and eighty-four of this act. 32 Hun, 71.
$ 983. (Am'd 1877, 1890.) An action for either of the fol99 N. Y! 429. lowing causes, must be tried in the county where the cause of 40 Hun, 460. action, or some part thereof, arose. 6 Week. 1. To recover a penalty or forfeiture, imposed by statute, Dig. 125. except that where the offense, for which it is imposed, was
committed on a lake, river or other stream of water, situated in two or more counties, the action may be tried in any county bordering on the lake, river or stream, and opposite to the place where the offence was committed. But in an action where the people of the State are a party to recover a penalty for trespass upon the lands of the forest preserve the action may be tried in a county adjoining the county where
the cause of action arose. 21 Week. 2. Against a public officer, or a person specially appointed Dig. 120. to execute his duties, for an act done, in virtue of his office, or 23 N.Y.State for an omission to perform a duty, incident to his office ; or Rep. 594.
against a person, who by the command or in the aid of a pub
lic officer, has done anything touching his duties. 29 Hun, 137.
3. To recover a chattel distrained, or damages for distrain ing a chattel.
8 984. An action, not specified in the last two sections, 32 Hun, 71.
must be tried in the county, in which one of the parties re
The Union Surety and Guaranty Co.
193 sided, at the commencement thereof. If neither of the parties 21N.Y.State then resided in the State, it may be tried in any county, which Rep. 67. the plaintiff designates, for that purpose, in the title of the Ormplaint.
985. If the county, designated in the complaint, as the place of trial, is not the proper county, the action may notwithstanding be tried therein ; unless the place of trial is changed to the proper county, upon demand of the defendant, followed by the consent of the plaintiff, or the order of the court.
$ 986. Where the defendant demands that the action be tried in the proper county, his attorney must serve upon the plaintiff's attorney, with the answer, or before service of the 54 How. Pr.
166. answer, a written demand accordingly. The demand must
8 Abb. N. C. specify the county, where the defendant requires the action tube tried. If the plaintiff's attorney does nct serve his writ- 66 How. Pr. ten consent to the change, as proposed by the defendant, 391. within five days after service of the demand, the defendant's 23 N. Y. State attorney may, within ten days thereafter, serve notice of a Rep. 396. motion to change the place of trial. 13: S, Y. 442, 2 App. Div. 566; 6 Id. 621.
987. The court may, by order, change the place of trial, 32 Hun, 71. in either of the following cases :
1. Where the county, designated for that purpose in the complaint, is not the proper county.
2. Where there is reason to believe, that an impartial trial cannot be had in the proper county.
3. Where the convenience of witnesses, and the ends of jus- 18 Week tice, will be promoted by the change.
Dig. 4o. $ 988. (Am'd 1877.] Where the place of trial is changed to another county, the subsequent proceedings shall be had in the county to which the change is made, the same as if it had been designated in the complaint, as the place of trial; except as otherwise directed by the court, or provided by the written consent of the parties, filed with the clerk. And the clerk of the county, from which it is changed, must forthwith deliver to the clerk of the county, to which it is changed, all papers filed in the action, and certified copies of all minutes and entries relating thereto, which must be filed, entered, or recorded, as the case requires, in the office of the last-named clerk.
$ 989. (Amd 1877.) An order to change the place of trial takes effect, upon the entry thereof, in the office of the clerk of the county, from which the place of trial is changed. But for the purposes of the place of hearing a motion to set it asisle, or an appeal therefrom, the place of trial is deemed unchanged.
$990. (Amd 1879.] An issue of law may be tried in any county within the judicial district embracing the county wherein the action is triable; but after the trial, the decision, and all other papers relating to the trial must be filed, and the judgment rendered must be entered in the last named county.
$ 991. This article is applicable to an action in the supreme court only.