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 counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counter-claim, 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 gave 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 defence. Amended by Laws of 1851, ch. 479; 1858, ch. 306. 16 N. Y., 309; 28 B., 664; 23 B., 405; 9 B., 378; 8 B., 78; 19 How. P. CHAP. XI on frivo $247. If a demurrer, answer, or reply be frivolous, the Judgment party prejudiced thereby, upon a previous notice of five lous de PART III. murrer answer or reply. days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly. 23 N. Y., 163; 18 N. Y., 320; 28 B., 652; 27 B., 633; 19 B., 198; 16 B., 298; 15 B., 16; 12 B., 302; 7 B., 582; 22 How. P. R., 470; 21 How. P. R., 450; 19 How. P. R., 450; 18 How. P. R., 240; 16 How. P. R, 34; 15 How. P. R., 186, 267; 12 How. P. R., 26, 153, 400; 11 How. P. R., 398; 10 How. P. R., 19, 451, 457; 9 How. P. R., 150; 8 How. P. R., 34, 149, 163. 274, 397, 414; 7 How. P. R., 396; 6 How. P. R., 21. 312, 329, 475; 5 How. P. R., 14, 31, 247; 13 Ab., 312; 12 Ab., 63; 11 Ab., 439; 9 Ab., 27; 8 Ab., 436; G Ab., 13; 4 Ab., 95; 3 Ab., 1; 1 Ab., 190; 2 Hilt., 475; 19 Ab., 262; 18 Ab., 137; 14 Ab., 264; 24 How. P. R., 478. CHAPTER II. ISSUES AND THE MODE OF TRIAL. The differ ent kinds SEC. 248. The different kinds of issues. 249. Issue of law. 250. Issue of fact. 251. On issues of both law and fact, the issue of law to be first tried. 252. Trial, what. 253. Issues how to be tried. 254. The same. 255. All issues to be tried before a single judge, &c. 256. Either party may give notice of trial. Note of issue. 257. Order of disposing of issues on the calendar. S248. Issues arise upon the pleadings, when a fact or con of issues. clusion of law is maintained by the one party and controverted by the other. They are of two kinds : Issue of law. Issue of fact. On issues of both law and fact, 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. 1 E. D. S., 386. $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. 3 Ab., 156. S251. 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 Arst tried. otherwise direct. the issue of law to be Trial defined. 8 How. P. R., 286; 9 Ab., 50. S252. A trial is the judicial examination of the issues be tween the parties, whether they be issues of law or of fact. Amended by Laws of 1851, ch. 479; 1852, ch 393. 11 B., 341; 19 How. P. R., 119; 10 How. P. R., 400; 8 How. P. R., 34; 7 How. P. R., 354; 6 How. P. R., 274, 419; 5 How. P. R., 155; 13 Ab., 308; 10 Ab., 314; 8 Ab., 295; 25 N. Y., 508; 28 How. P. R., 184; 26 How. P. R., 18. CHAP. XL Issues, $253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred seventy, how tried. and two hundred and seventy-one. 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 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; tried. $254. Every other issue is triable by the court, which, Issues, how 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 of fact to judge. $255. All issues of fact, triable by a jury or by the court, All Issues must be tried before a single judge. Issues of fact in the be tried by supreme court, must be tried at a circuit court when the trial a single 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. trial and S256. 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 party giving the notice shall furnish the clerk, at least eight issue. 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 First judicial one notice of trial, and one note of issue from either party, district. 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 and county of New York, the party who shall have filed such note of issue, shall, as a condition precedent to such action being brought to trial, pay to the clerk of the court the sum of three dollars; and in every PART III. Courts to appoint phers. action in either of the said courts, commenced after the passage of this act, the party who shall file therein a first note of issue of fact shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars; and the amounts so received shall be accounted for under oath and paid over monthly, by the clerk of each of said courts, to the comptroller of the city of New York, and by him deposited in the county treasury, to be used as a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section. If the fund thus created be inadequate to pay such salaries, the additional amount necessary for such payment shall be appropriated and paid from the fund of county contingencies, to which fund any surplus of the sums so paid over to the comptroller as hereinbefore provided shall be credited. Each of the courts herein before named shall appoint a stenogra- stenographer for the circuit, trial term or special term at which issues of fact are tried, which constitutes a separate branch of such court, who shall be a sworn officer of the court, shall hold office during the pleasure of the court, and shall be paid a salary of twenty-five hundred dollars per annum, in like manner as the salaries of the other officers of the courts are now paid. It shall be the duty of every stenographer so appointed for any circuit, trial term or special term, under the direction of the presiding judge thereof, to take full stenographic notes of all proceedings in every trial thereat; and in case the presiding judge shall require a transcript of said stenographic notes, he may order the expense thereof to be paid equally by the parties to the action, at the rate of teu cents for every one hundred words so transcribed, and may enforce payment thereof, and the amount so paid, together with the sum paid as a condition precedent to the cause being brought to trial, or to the first note of issue being filed as herein before provided, shall be deemed a necessary disbursement within the meaning of section three hundred and eleven of the code of procedure, and shall be allowed as such to the prevailing party in the action. Stenographer for extra terms. And oyer At any extra circuit, trial term or special term of said courts, the presiding judge thereof shall appoint a stenographer for such extra circuit or term, who shall, in like manner as aforesaid, be a sworn officer, and who shall be paid a compensation at the rate and in the manner herein before provided. When a court of oyer and terminer shall be held in and termi and for the city and county of New York, the presiding judge thereof shall designate one of the stenographers of the supreme court to act as stenographer of such court of oyer and terminer during its session, who shall, in like manner as aforesaid, be a sworn officer, but who shall receive no compensation in addition to his salary as hereinbefore provided, except that in case a transcript of his stenographic notes taken on the ner. trial of any criminal cause, be required for the use of the presiding judge or the district attorney, the expense thereof shall, on the order of such judge or district attorney, be paid as a county charge at the rate hereinbefore specified. CHAP. XL to appoint The surrogate of the county of New York is hereby author- Surrogate ized and directed to appoint a stenographer to the surrogate's stenogra court of said county, who shall be a sworn officer of the pher. court, and shall be paid a salary of three thousand dollars a year in like manner as the salaries of clerks in said court are now paid by law from the fees of said court paid into the treasury of the county of New York. The stenographer so appointed shall be skilled in the practice of his art, and shall hold his position during good behavior, and so long as he efficiently discharges the duties of his office. He shall, under the direction of the said surrogate, take full stenographic notes of all proceedings in said court, in which oral proofs shall be given, which notes shall be fairly transcribed, and, after being signed by the witnesses, deponent or affiaut, shall be filed in the office of said surrogate. By consent of the parties to the proceeding in which such proofs shall be taken, and said surrogate, the signing of such record of proof by the witness, deponent or affiant, may be waived, in which case such record, after being authenticated by the certificate of said stenographer, or of said surrogate, shall be deemed to be the record of any proofs or proceedings so taken. counties by tion; how In other counties of this state, on trials of issues of fact, at In other any circuit court or court of oyer and terminer, it shall be whom to be lawful for the presiding justice, in his discretion, to employ a appointed. stenographer, who shall be entitled to such compensation as Compensashall be certified by such justice, not exceeding five dollars to be paid. for each day's attendance at such court, at the request of such justice, and ten cents a mile for travel from his place of residence to the place where the court is held, together with such sum for stationery as the presiding justice shall certify, which compensation shall be a charge upon the counties in which such courts shall be held respectively, and shall be allowed, and paid from the court fund, in like manner as other charges are allowed and paid from it. It shall be the duty Duties. of such stenographer to furnish to any party to such trials, upon request, a copy of the evidence and proceedings taken by him on such trials, or of such part thereof as may be required on payment, on behalf of such party, of ten cents for every one hundred words of the copy so furnished. Amended by Laws of 1858, ch. 306; 1859, ch. 428; 1860, ch. 459; 1863, 18 B., 597; 21 How. P. R., 88; 8 How. P. R., 249; 7 How. P. R., 489; disposing of $257. The issues on the calendar shall be disposed of in Order of the following order; unless, for the convenience of parties, or issues on the the dispatch of business, the court shall otherwise direct: calendar. |