TITLE II. Trials without a jury. Sec. 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 filed; consequence 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 1014. Proceedings where the reference is for trial of part of the issues, 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. [Repealed.] 1024. Qualifications of a referee. 1025. Several referees may be appointed. 1026. Proceedings regulated where there are several referees. § 1008. [Am'd, 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, assents 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. (1) Corresponds to Co. Proc., §§ 253, 254. (2) From Co. Proc., § 266. § 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. 2. 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, the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial. Co. Proc., remainder of § 26, am'd. § 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. If it is not so filed, either party may move, al 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 a new trial, either absolutely, or unless it is * Error in engrossing for "issues." 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. Co. Proc., part of § 267, am'd. § 1011. [Am'd, 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 amendment. § 1012. Qualification of the last section. But a reference shall not be made, of course, upon the consent of the parties, in an action to annul a marriage, or for a 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. Id., § 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. 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 issues; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. Id., part of § 271, am'd. § 1014. Proceedings where the reference is for trial of part of the issues. Where a reference is made, as prescribed in the last section, to report upon a specific question of fact, involved in the issue, and the determination 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 upon the verdict and the report. Substitute for part of Co. Proc., § 272. § 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 judgment, or where it is necessary to do so, for the information of the court; 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. Co. Proc., 271, subd. 2 and 3. See § 1232, post. 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 referee's minutes." 2 R. S. 384, § 44 (2 Edm. 399), am'd. § 1017. Witnesses may be subpoenaed. A witness may be subpoenaed to attend before a referee, ap pointed 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 court. Id., § 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 law, must be brought on upon like notice, 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, to pre serve order, and punish the violation thereof. Upon the trial of an issue of fact, the referee exercises also the same power a the court, to allow amendments to the summons, or to the pleadings; 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. 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, and otherwise to dispose of any question, arising upon the decision of the issue referred to him. The powers. conferred by this section, are exercised in like manner, and upo like terms, as similar powers are exercised by the court, upor a trial. First three sentences from the first three sentences of Co. Proc., the remainder is new. The last sentence but one refers to § 497, ante. § 1019. [Am'd, 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; otherwise either party may before it is filed or delivered, serve a notice, upon the attorney 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; and the referee is not entitled to any fees. Co. Proc., last sentence of § 273. 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. See § 1184, post. § 1021. [Am'd, 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 rial 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 udgment to be entered thereupon, and in any such case it shall not be necessary for the court or referee to make any finding f fact. Where it directs an interlocutory judgment, with leave o the party in fault to plead anew or amend, or permitting the ction to be divided into two or more actions, and no other issue emains to be disposed of, it may also direct the final judgment o be entered if the party in fault fails to comply with any of he directions given or terms imposed. Substituted for Co. Proc., part of § 267; L. 1895, ch. 946. § 1022. [Am'd, 1895.] Id.; upon trial of the whole issue f fact. The decision of the court or the report of a referee upon the rial of the whole issues of fact may state separately the facts ound and the conclusions of law, and direct the judgment to e entered thereon, or the court or referee may file a decision tating concisely the grounds upon which the issues have been ecided, and direct the judgment to be entered thereon, which ecision so filed shall form part of the judgment-roll. In an ction where the costs are in the discretion of the court, the ecision or report must award or deny costs, and if it awards osts, it must designate the party to whom the costs to be taxed re awarded. Whenever judgment is entered on a decision hich does not state separately the facts found, the defeated arty may file an exception to such decision, in which case, on n appeal from the judgment entered thereon upon a case conining exceptions, the appellate division of the supreme court hall review all questions of fact and of law, and may either todify or affirm the judgment or order appealed from, award a This word inserted by error in engrossing. new trial or grant to either party the judgment which the facts warrant. L. 1895, ch. 946. § 1023. [Repealed, 1894.] § 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. § 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 one 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 R. S. 384, § 46 (2 Edm. 399). 260 |