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 specially 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. Thayer Mfg. Jewelry Co. v. Steinan, 58 How. 315; Cook v. Darrow, 10 Week. Dig. 522; Newman . Goddard, 20 Hun, 563; Jex v. Jacobs, 7 Abb. N. C. 452; Argall v. Jacobs, 56 How. 167; Newhall v. Appleton, 9 Week. Dig. 274; Knapp v. Post, 10 Han, 35; Decker v. Staurig, 57 How. 495; Minick v. City of Troy, 19 Hun, 253: Huebner v. Rosevelt, 7 Daly, 11: Powers v. Smith, 9 Week. Dig. 167; Schwerin v. Raymond, 6 Abb. N. C. 378: Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 282; Erwin v. Neversink Steamboat Co., 8 Week. Dig. 382; Holtz v. Schmidt, 44 N. Y. 827; McCormick v. King, 7 Week. Dig. 195; Underhill v. Waite, 9 id. 438; Mitchell v. Carter, 14 Hun, 448; Sparks v. Wakely, 7 Week. Dig. 80; Dayton v. Church, 7 Abb. N. Č. 367; Mahoney v. Decker, 18 Hun, 365; Smith v. Frankfield, 77 N. Y. 414; Newhall v. Appleton, 46 N. Y. Supr. 6: Tunstall v. Winton, 18 Hun, 222; Third Ave. R. Co. v. Ebling, 169 N. Y. 98; Denise v. Denise, 41 Hun, 9; Wilcox Silver Plate Co. v. Barclay, 14 Civ. Proc. 211; Eighmie v. Strong, 15 id. 119. 1003. [Amended, 1895.] Application of this article to trials of specific questions by jury; special provisions applicable thereto.* The pro visions 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 970 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 admission 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. (1) 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. In effect Jan. 1, 1896; L. 1895, ch. 946. New in form. (1) Birdsall v. Patterson, 51 N. Y. 43; Vermilyea v. Palmer, 52 id. 471; Lansing v. Russell, 2 id 563; Forrest v. Forrest, 25 id. 501; Marvin v. Marvin, 4 Keyes, 9; Clark v. Brooks, 2 Abb. N. S. 385, 406, 407; Anderson v. Rome, etc., R. R. Co., 54 N. Y. 334; Church v. Kidd, 3 Hun, 254. $1004. Motion for new hearing, after trial of specific questions by a referee. In an action triable by * Ante, § 999. 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. New. MacPherson v. Bonner, 40 N. Y. Supr. 448. § 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;(1) 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. L. 1832, ch. 128, 1 (4 Edm. 529), am'd. See Folger v. Fitzhugh, 41 N. Y. 228; Tracey v. Altmyer, 46 id. 598; Blydenburg v. Johnson, 9 Abb. N. 8. 459; Raphaelsky v. Lynch, 12 id. 224; Luddington v. Miller, 35 N. Y. Supr. 1. (1) Outwater v. Marshall, 12 Wend. 242; Hicks v. Chamberlin. id. 255. § 1006. When exception not to prejudice motion for new trial. - 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. 2 R. S. 422, 76 (2 Edm. ed. 440), ani'd. § 1007. [Amended 1883 and 1884.] 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 the 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 judi cial 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. TITLE II. Trials without a jury. B. 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 filled; oonsequence 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. 1024. Qualifications of a referee. 1025. Several referees may be appointed. 1026. Proceedings regulated where there are several referees. § 1008. [Amended, 1877.] 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.(1) 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, as sents to such a trial.(2) His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section. (3) (1) Corresponds to Co. Proc., 253, 254. Black v. White, 37 N. Y. Sapr. 320; Hutchins v. Smith, 63 Barb. 251; People v. Alb. & Susq. B'y Co., 57 N. Y. 161. (2) From Co. Proc., 266. (3) New. § 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. (1) *Error in sngrossing for, “ issues.” 3. 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.(2) Co. Proc., remainder of 266, am'd. Fire Department v. Harrison, 2 Hilt. 455; Lewis v. Varnum, 12 Abb. 305; Moffat v. Mount, 17 id. 4; Greason v. Keteltas, 17 N. Y. 498; McKeon v. See, 4 Rob. 450; Bradley v. Aldrich, 40 N. Y. 511. (1) Hendricks v. Carpenter, 4 Rob. 665. (2) People v. Alb. & Susq. R'y Co., 57 N. Y. 161; Black v. White, 37 N. Y. Supr. 320; Hutchins v. Smith, 63 Barb. 251; Gibberton v. Fleischel, see 5 Duer, 652, and Hendricks v. Carpenter, 4 Rob. 665. § 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 final adjournment of the term, where the issue was tried.(1) 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 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. Id., part of 267, am'd. (1) Burger v. Baker, 4 Abb. 11; Lewis v. Jones, 13 id. 427; Stewart v. Slater, 5 Duer, 84; People v. Dodge, 5 How. 47; O'Brien v. Bowes, 4 Bosw. 663; Brinkley v. Brinkley, 56 N. Y. 192. § 1011. [Amended, 1879.] 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.* Id., 270, and part of 273, with am't. Leaycroft v. Fowler, 7 How. 259; Waterman v. Waterman, 37 id. 36; Keator v. Ulster Plank R. Co., 7 id. 41; Haner v. Bliss, id. 246; 3 Abb. 171; Hyland v. Loomis, 48 Barb. 126; White v. Coulter, 3 T. & C. 608; s. c., 1 Hun, 357. *See ante, p. iii. --- § 1012. Qualification of the last section. But a ref erence shall not be made, of course, upon the consent of the parties, in an action to annul a marriage, or for & 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. New in form. See Co. Proc., § 273. - § 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.(1) 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 is sues;(2) or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. Co. Proc. part of 271, am'd. (1) Bensal v. Gat, 5 T. & C. 188; Flanders v. Odell, 16 Abb. N. S. 247; Williams v. Aller, 48 How. 357 Place v. Chesebrough, 63 N. Y. 315; Kingsley v. Brooklyn, 1 Abb. N. C. 108; Cowden v. Teale, 6 Hun, 532; Van Marter v. Hotchkiss, 1 Keyes, 585 Goodyear v. Brooks, 4 Rob. 682; Wheeler v. Falconer, 7 id. 45; Keeler v. Poughkeepsie P. Road Co., 10 How. 11; Sharp v. Mayor of New York, 19 id. 213; Cameron v. Freeman, id. 310; Dickinson v. Mitchell, 19 Abb. 288, Kennedy v. Shilton, 9 id. 157, note; s. c., 1 Hilt. 546; Graham v. Gold ing, 7 How. 260; Smith v. Dodd, 3 E. D. Smith, 348; Mills v. Thursby, 11 How. 113; Palmer v. Palmer, 13 id. 363; Jackson v. De Forest, 14 id. 81 Masterton v. Howell, 10 Abb. 118; Mitchell v. Stewart, 1 Abb. N. 8. 77; Hatch v. Wolfe, 30 How. 65; Swift v. Wells, 2 id. 79; Miller v. Hooker, id. 171; Harris v. Mead, 16 Abb. 257; Parker v. Snell, 10 Wend. 577; McCullough v. Brodie, 6 Duer, 659; Brown v. Bradshaw, 1 id. 635; s. c. 8 How. 176; Goodyear v. Brooks, 2 Abb. N. S. 296; Atocha v. Garcia, 15 id. 303; Seigel v. Held, 36 How. 506; Schemerhorn v. Wood, 4 Daly, 158 Evans v. Kalbfleisch, 16 Abb. N. S. 13; Williams v. Allen, 48 How. 357; Welsh v. Darragh, 52 N. Y. 590; McCullongh v. Brodie, 13 How. 346. (2) McCullough v. Brodie, 13 How. 346; s. c., 6 Duer, 659; Cameron v. Freeman, 18 How. 310; s. c., 10 Abb. 332. $1014. Proceedings where the reference is for trial of part of the issues. Where a reference is made, as |