TITLE V.

Miscellaneous provisions:

Sec. 957. Form of certificate to copies, etc.

958. Certificate must be sealed.

959. Qualification of last section.

960. [Repealed.]

961. Surrogates, clerks, etc., to search files, and to certify, etc. 962. Saving clause.

§ 957. Form of certificate to copies, etc.

Where a transcript, exemplification, or certified copy of a rec ord or other paper, is declared by law to be evidence, and special provision is not made for the form of the certificate, in the particular case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original.

If the officer, or the court, body, or board, in whose custody an original paper, specified in the last section, is required to be, by the laws of the State, or of another state, or of the United States, or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the State, it must be attested by the seal of the county. Id., remainder of § 59, am'd.

§ 959. [Am'd, 1877.] Qualification of last section.

The last section does not require the seal of a court to be affixed to a certified copy of an order, or of a paper filed therein, or entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer.

Id., § 60, with the addition of the words "or a court of oyer and terminer."

§ 960. [Repealed, 1892, ch. 677.]

§ 961. Surrogates, clerks, etc., to search files, and to certify, etc.

A surrogate, county clerk, register, clerk of a court, or other person, having the custody of the records or other papers in a public office, within the State, must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor.

L. 1847, ch. 470, § 40 (4 Edm. 588), am'd. See ante, § 921.

§ 962. Saving clause.

Nothing in title fourth of this chapter prevents the proof of a fact, act, record, proceeding, document, or other paper or writing, according to the rules of the common law, or by any other competent proof.

2 R. S. 397, part of § 28 (2 Edm. 413), and L. 1846, ch. 240, § 2 (4 Edm. 642).

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CHAPTER X.

Trials; Including Jurors and Juries.

ITLE I.-Trials Generally; Including Exceptions and Motion for a New Trial.

ITLE II.-Trials without a Jury.

ITLE III.—Trial Jurors, Except in New-York and Kings Counties; Mode of Selecting Them, and of Procuring Their Attendance.

ITLE IV.—Trial Jurors in New-York and Kings Counties; Mode of Selecting Them, and of Procuring Their Attendance.

ITLE V.-Trial by Jury.

ITLE VI.-Miscellaneous Provisions; Including Those Relating to Embracery, and Other Acts of Misconduct.

TITLE I.

rials generally; including exceptions and motion for a new trial.

article 1. Issues, and the mode of trial thereof.

2. The place of trial.

3. Exceptions, case, and motion for a new trial.

ARTICLE FIRST.

Issues, and the mode of trial thereof.

ec. 963. Issues defined; different kinds of issues.

964. When issues of law arise; when issues of fact arise.

965. Isques to be judicially examined by a trial.

966. Order of trial, where issues of law and of fact arise in the same action.

967. But court may direct the order, etc., of disposition of the issues. 968. What issues of fact are triable by a jury.

969. What issues are riable by the court.

970. Order for trial by jury, of specific questions of fact, when of right. 971. Id.; when discretionary.

972. Trial of the remainder of the issues.

973. [Repealed.]

974. Counterclaim to be deemed an action, within the foregoing sections. 975. Immaterial issues need not be tried.

976. What issues to be tried before one judge; regulation of trial in the supreme court.

977. Notice of trial and note of issue. Calendar to be prepared.

978. Issues how arranged. Order of disposition at a jury term.

979. Id.; when a jury does not attend.

980. Either party may bring issue to trial.

981. What papers to be furnished on trial, and by whom.

§ 963. Issues defined; different kinds of issues.

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. Of law; and

2. Of fact.

Co. Proc., 248, am'd.

§ 964. When issues of law arise; when issues of fact arise.

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 infor mation 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.

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.

Substitute for Co. Proc., §§ 249 and 250.

§ 965. [Am'd, 1879.]

by a trial.

Issues to be judicially examined

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.

Substitute for Co. Proc., § 252.

§ 966. [Am'd, 1877.] Order of trial, where issues of law and of fact arise in the same action.

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 pres scribed in the next section.

Substitute for Co. Proc., § 251.

§ 967. [Am'd, 1877.] But court may direct the order, etc., of disposition of the issues.

A separate trial, between the plaintiff and one or more de fendants, 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 dispost tion of the issues, may be directed by the court, in its discretion. Such a direction may be given, in an order, made upon notice: 0. except where an application for such an order has been denied, t 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.

Includes part of Co. Proc., § 251, and part of § 258.

§ 968. [Am'd, 1877.] a jury.

What issues of fact are triable by

In each of the following actions, an issue of fact must be tried by a jury unless a jury trial is waived, or a reference is directe 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.

Substitute for Co. Proc., § 253.

§ 969. What issues are triable by the court.

An issue of law, in any action, and an issue of fact, in an action not specified in the last section, or wherein provision for a trial

by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed.

Co. Proc., portions of §§ 253 and 254.

§ 970. [Am'd, 1892] Order for trial by jury, of specific questions of fact, when of right.

Where a party is entitled by the constitution, or by express provision of law, to a trial by a jury, of cae or more issues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply, upon notice, to the court for an order, directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing 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, where questions arising upon the issues, are stated for trial by a jury, 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.

L. 1892, ch. 188.

§ 971. [Am'd, 1877.] Id.; when discretionary.

as

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 questions to be distinctly and plainly stated for trial accordingly.

§ 972. [Am'd, 1877.] Trial of the remainder of the issues. If the questions, directed to be tried by a jury, as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee.

Substitute for part of Co. Proc., § 254. $973. [Repealed, 1877.]

§ 974. [Am'd, 1877.]

Counterclaim to be deemed an

action, within the foregoing sections.

Where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact, 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. Immaterial issues need not be tried.

An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.

§ 976. [Am'd, 1895.] What issues to be tried before one Judge; regulation of trial in the supreme court.

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,

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