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prescribed in the last section, to report upon a specifie question of fact, involved in the issue, and the determi nation of one or more other issues is necessary, in order to enable the court to render judgment, they must be tried, either before or after the filing of the report, as the court directs, and either by a jury, or by the court, without a jury, as the case requires. Where they are tried by a jury, application for judgment must be made apon the verdict and the report.
Substitute for part of Co. Proc., 272. See Thurber v. Chambers, ♦ Hun, 721.
§ 1015. Compulsory reference upon questions incidentally arising. -- The court may likewise, of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judg ment, or where it is necessary to do so, for the information of the court;(1) and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings.(2)
Co. Proc., 271, subd. 2 and 3. See 1232, post. (1) Bowman v. Sheldon, 1 Duer, 607; Fox v. Fox, 24 How. 409; Van Zant v. Cobb, 10 1d. 348: Woodruff v. Com. M. Ins. Co., 2 Hult. 130; Ehlen v. Rutger F. Ins. Co., 6 Abb. 68; Mundorff v. Mundorff, 1 Hun, 41. (2) Flagg v. Munger, Barb. 9; Barron v. Sandford, 14 How. 443; 6 Abb. 320, note; Stelle v. Palmer, 7 id. 181; Meyer v. Lent, id. 225; 16 Barb. 539; Pendleton v. Weed, 17 N. Y. 72; Dwight v. St. John, 25 id. 203; Barber v. Case, 12 How. 351; Demelt v. Leonard, 19 id. 140; Munn v. Barnum, 2 Abb. 411.
§ 1016. Referee to be sworn.- A referee, appointed as prescribed in either of the foregoing sections of this title, must, before proceeding to hear the testimony, be sworn faithfully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to make a just and true report, according to the best of his understanding. The oath may be administered by an officer specified in section 842 of this act. But where all the parties, whose interest will be affected by the result, are of age, and present, in person or by attorney, they may expressly waive the referee's oath. The waiver may be made by written stipulation, or orally. If it is oral, it must be entered in the ref oree's minutes.
3 R. S. 384,244 (2 Edm. 399), am'd, Keator v. Ulster Plank Road Co.
7 How. 41; Whalen v. Board of Supervisors of Albany county, 6 How. 278.
§ 1017. Witnesses may be subpoenaed. A witness may be subpoenaed to attend before a referee, appointed as prescribed in either of the foregoing sections of this title, to testify, and, in a proper case, to bring with him a book, document, or other paper, as upon a trial by the
2 R. 8. 384, 45, am'd.
§ 1018. General powers of a referee upon a trial. --The trial, by a referee, of an issue of fact, or of an issue of law, must be brought on upon like notice,(1) and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the court, without a jury. The referee exercises, upon such a trial, the same powers as the court, to grant adjournments,(2) to preserve order, and punish the violation thereof. (3) Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow amendments to the summons, or to the pleadings;(4) to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify (5) Upon the trial of an issue of law, the referee exercises the same power as the court, to permit a party in fault to plead anew or amend; to direct the action to be divided into two or more actions; to award costs,(6) and otherwise to dispose of any question, arising upon the decision of the issue referred to him.(7) The powers, conferred by this section, are exercised in like manner, and upon like terms, as similar powers are exercised by the court, upon a trial.
First three sentences from the first three sentences of Co. Proc., 272; the remainder is new. The last sentence but one refers to 2497, ante. (1) Mohrmann v. Buch, 5 T. & C. 700; s. c., 2 Hun, 674; Catlin v. Catlin, id. 378; Wetter v. Schlieper, 7 Abb. 92, Sage v. Mosher, 17 How. 367. (2) Harris v. Norton, 7 Wend. 534; Jackson v. Ives, 22 id. 637; & Hin, 375; Langley v. Hickman, 1 Sandf. 681; Acces. Transic Co. v. Garrison, 9 Abb. 141; 18 How. 1. (3) In Re Seeley & Jobson, 6 Abb. 217, note; Heerdt v. Wetmore, 2 Rob. 697. (4) Dougherty v. Valloton, 38 N. Y. Supr. 455; Woodruff v. Hurson, 32 Barb. 557; Hoyt v. Hoyt, s Busw. 511; Melvin v. Wood, 4 Abb. N. 9. 438; 3 Keyes, 533; Patchine. Peck, 38 N. Y. 39. (5) Burnett v. Phalon, 19 How. 530; Fellows v. Wil son, 31 Barb. 162. (6) Graves". Blanchard, 4 How. 303; Pratt v. Stiles 17 id. 211; s. c., 9 Abb. 150; Barker v. White, 3 Keyes, 617; Merserean v Byeras, 12 How. 300; Luddington v. Taft, 10 Barb. 448. (7) Sobayler s. Smith, 61 N. Y. 309.
§ 1019. [Amended, 1882.] Referee's report; when to be made; consequence of failure. -- Upon the trial, by a referee, of an issue of fact, or an issue of law, or where a reference is made as prescribed in section one thousand and fifteen of this act, his written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted; (1) otherwise either party may, before it is filed or delivered, serve a notice, upon the attor ney for the adverse party, that he elects to end the reference. In such a case, the action must thenceforth proceed, as if the reference had not been directed; (2) and the referee is not entitled to any fees.
Co. Proc., last sentence of 273. (1) Richards v. Bloom, 5 Hun, 182 Ballou v. Parsons, 55 N. Y. 673; Thiesselin v. Rossett, 3 Abb. N. S. 54; Livingston v. Gidney, 25 How. 1. (2) Mantles v. Myle, 26 How. 409! Litch v. Brotherson, 25 id. 407; 8. c., 16 Abb. 384; Livingston v. Gidney, 25 How. 1; Niles. Maynard, 28 d. 390; Kissam v. Hamilton, 20 id. 369; Godding v. Porter, 17 Abb. 374; Halsey v. Carter, 6 Rob. 535; Foster v. Bryan, 26 How. 164; 16 Abb. 396; Gregory v. Cryder, 10 Abb. N. S. 289. 1020. Double or other increased damages.
Where the double, treble, or other increased damages are given by statute, the decision of the court, or the report of the referee, must specify the sum awarded as single damages, and direct judgment for the increased damages.
New. See 1184, post.
§ 1021. [Amended, 1895.] Decision of court or report of referee, upon trial of demurrer.-The decision of the court, or the report of a referee, upon the trial of a demurrer, or upon the trial of the issues of fact or law, where a nonsuit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in any such case it shall not be necessary for the court or referee to make any finding of fact. Where it directs an interlocutory judgment, with leave to the party in fault to plead anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed.
In effect Jan. 1, 1896; L. 1895, ch. 946.
§ 1022. [Amended, 1895.] Id.; upon trial of the whole issue of fact.-The decision of the court or the report of a referee upon the trial of the whole issues
*This word inserted by error in engrossing.
of fact may state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, or the court or referee may file a decision stating concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll. In an action where the costs are in the discretion of the court, the decision or report must award or deny costs, and if it awards costs, it must designate the party to whom the costs to be taxed are awarded. Whenever judgment is entered on a decision which does not state separately the facts found, the defeated party may file an exception to such decision, in which case, on an appeal from the judgment entered thereon upon a case containing exceptions, the appellate division of the supreme court shall review all questions of fact and of law, and may either modify or affirm the judgment or order appealed from, award a new trial or grant to either party the judgment which the facts warrant.
In effect, as amended, Jan. 1, 1896; L. 1895, ch. 946.
§1024. Qualifications of a referee.-A referee, appointed by the court, must be free from all just objections; and no person shall be so appointed, to whom all the parties object, except in an action to annul a marriage, or for a divorce, or a separation. A judge cannot be appointed a referee, in an action brought in the court, of which he is a judge, except by the written consent of the parties; and, in that case, he cannot receive any compensation as referee.
Co. Proc., part of 273. See Flanders v. Odell, 16 Abb. N. S. 247.
§ 1025. Several referees may be appointed.-Where the court is authorized to appoint a referee, it may, in Its discretion, appoint either one or three. And where a reference is made by consent of the parties, they may select any number of referees, not exceeding five.
Substitute for Co. Proc., part of § 273.
§ 1026. Proceedings regulated where there are several referees. Where the reference is to more than ene referee, all must meet together, and hear all the
allegations and proofs of the parties; but a majority may appoint a time and place for the trial, decide any question which arises upon the trial, sign a report, or settle a case. Either of them may administer an oath to a witness; and a majority of those present, at a time and place appointed for the trial, may adjourn the trial to a future day.
2 B. 8. 384,46 (2 Edm. 299). See Townsend v. Glen's Falls Ins. Co. 18 Abb. N. S. 277.
Trial jurors, except in New-York and Kings counties; mode of selecting them, and of procuring their attend
ARTICLE 1. Qualifications and exemptions of trial jurors.
2. Mode of selecting, drawing, and procuring the attendance of trial jurors, in ordinary cases.
3. Mode of striking and procuring a special jury, and of proeur. ing a foreign jury.
4. Penalties for non-attendance.
QUALIFICATIONS AND EXEMPTIONS OF TRIAL JURORS
Bac. 1027. Qualifications of trial jurors.
1028. Additional proviston respecting property qualification.
1030. Persons entitled to claim exemption from service.
1031. Evidence of exemption in certain cases.
1032. When Juror to be discharged from serving.
1033. When juror to be excused from serving.
1034. Application of this article, as respects New-York and Kings
$ 1027. [Amended, 1895.] trial jurors.-In order to be qualified to serve as a trial juror, in a court of record, a person must be:
1. A male citizen of the United States, and a resident of the county.
2. Not less than twenty-one, nor more than seventy years of age. In effect Sept. 1, 1895; L. 1895, ch. 321.