render judgment for damages for the failure to perform, without allowing the defendant a jury trial. Dunnell v. Keteltas, 16 Abb. 205; S. C. Aff'd, 26 How. 599 (n.) Not so where the object of the action is the recovery of damages, and the equitable relief demanded is only accessory. New York Ice Co. v. Northwestern Insurance Co. 10 Abb. 35; S. C. 31 Barb. 72; 20 How. 424. p. Constru tion of laws of 1862, page 743.-This statute, which authorizes the compulsory reference of claims by or against an insolvent mutual insurance company, although it denies a trial by jury, is not unconstitutional. Sands v. Kimbark, 27 N. Y. (13 Smith), 147; S. C. 39 Barb. 108. § 254. [209.] (Am'd 1849.) Other issues to be tried by the court. Every other issue is triable by the court, which, 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 270 and 271. a. Issues of fact in equity case.The court may, in the exercise of a sound discretion, on the trial of issues of fact in an equity case, submit to the jury additional issues, arising upon the proofs, and material to the final determination. Farmers' and Mechanics' Bank of Genesee v. Joslyn, 37 N. Y. (10 Tiff.), 353; S. C. 4 Trans. App. 308. b. Trial by court must be entire.A trial by the court without a jury, cannot properly be had before several judges in succession; e. g., partly decided by one judge, and at a subsequent term taken up and completed by another. Belmont v. Ponvert, 3 Rob. 693; S. C. Aff'd, id. 698 (n.) c. Equitable relief.-All actions which seek equitable relief are competent to be tried by the court. McCarty v. Edwards, 24 How. 236; M'Mahon v. Allen, 10 How. 384; Hill v. McCarthy, 3 Code R. 49. d. Right of the court.-The court has the right, in every case embraced in this section (254) of the Code, to have the aid of a jury upon the trial, and to submit to its determination any question of fact presented by the pleadings, which may be deemed by it expedient. It has sometimes been supposed that it lies with the parties to determine whether an issue or specific question of fact shall be tried by a jury, but this is error. Church v. Freeman, 16 How. 294. See Pennsylvania Coal Co. v. Delaware and Hudson Canal Co. 1 Keyes, 72. e. Action in the nature of quo warranto.-Where in an action and proceedings by information in the nature of quo warranto, the complaint and the nature of the case call for equitable relief, and the case comes on for trial by the court, it is too late to call for a jury after the plaintiff has opened his case, read his pleadings and rested. Proceedings of this nature are not as of course triable by jury. People v. Albany and Susquehanna Railroad Co. 1 Lans. 308; S. C. 55 Barb. 344; 38 How. 228; 7 Abb. N. S. 265. f. Compulsory references.-The constitutional provision of the right of "trial by jury, in all cases in which it has been heretofore used, shall be inviolate forever," cannot be too faithfully preserved; and any act of the legislature tampering with it, should be very strictly construed. Compulsory references should be rigorously confined to cases involving the examination of a bona fide account in an action of contract, and which should also be literally and truly a long account. Sharp v. Mayor, etc. of New York, 18 How. 213, 216; S. C. 31 Barb. 578; S. C. Aff'd, 19 How. 193. 9. Fraudulent assignment.-In an action to set aside a fraudulent assignment, it was held, that there was no occasion for the intervention of a jury; that it was not a proper question for the determination of the court. Wilson v. Forsyth, 16 How. 449; Draper v. Day, 11 How. 439. h. Action to charge the estate of a married woman.-An action of this nature is purely equitable, and should be tried at special term without a jury. Cheseborough V. House, 5 Duer, 125, 129; Hill v. McCarthy, 3 Code R. 50. i. Order of reference, when made. It cannot be made after the trial, and should be made before. O'Brien v. Bowes, 4 Bosw. 658; S. C. 10 Abb. 106. It will be made in a proper case on motion. Carr v. Wehrnan, 2 Rob. 663. § 255. [210.] (Am'd 1849, 1851, 1852.) All issues to be tried before a single judge. All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court must be tried at a circuit court when the trial 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. a. Trial by the court must be entire. In the case of a trial by the court, without the jury, it cannot properly be had before several judges in succession, e. g., partly decided by one judge, and, at a subsequent term, taken up and completed by another. Belmont v. Ponvert, 3 Rob. 693, 698 (n.) b. Stipulation. It is competent for parties to stipulate that the trial shall be had out of the county if they so desire. Laws of New York, 1847, ch. 470. c. Issue of law at any special term in the district.-An issue of law on demurrer, under the Code of 1849, might be brought on to argument at a special term held in a different county in the district from that indicated as the place of trial in the complaint. Ward v. Davis, 6 How. 274. The Code has since been amended so as to leave no § 256. [211.] give notice of trial. doubt on this question. id. 276 (n). See, also, old Rule 28. d. Place of trial.-Where an action is commenced for damages, consequent upon injuries to real property caused by the negligence of the defendant, it is of necessity local, and must be tried in the State where the real property is situated. Mott v. Coddington, 1 Rob. 267; S. C. 1 Abb. N. S. 290. See, also, Watts v. Kinney, 6 Hill, 82. e. Statutory foreclosure of mortgage of real property. An action brought to set aside a statutory foreclosure of a mortgage of real property, and to redeem the land in question from the mortgage, is not necessarily local in its nature, and need not be tried within the county where the land is situated. Hubbell v. Sibley, 4 Abb. N. S. 403. (Am'd 1858, 1859, 1860, 1863, 1865, 1869.) Either party may Note of issue. Stenographer. At any time after issue, and at least fourteen days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least eight 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 one notice of trial, and one note of issue from either party, 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 the 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 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 hereinbefore named shall appoint a 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 ten 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 hereinbefore provided, shall be deemed a necessary disbursement within the meaning of section 311 of the Code of procedure, and shall be allowed as such to the prevailing party in the action. 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 hereinbefore provided. When a court of oyer and terminer shall be held in 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 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. The surrogate of the county of New York is hereby authorized and directed to appoint a stenographer to the surrogate's court of said county, who shall be a sworn officer of the 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 affiant, 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 said surrogate, shall be deemed to be the record of any proofs or proceedings so taken. In other counties of this State, on trials of issues of fact, at any circuit court, or court of oyer and terminer, it shall be lawful for the presiding justice, in his discretion, to employ a stenographer, who shall be entitled to such compensation as shall be certified by such justice, not exceeding five dollars 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 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. In the surrogates' courts of the counties of New York and Kings, and of other counties in which a stenographer is or shall be duly authorized to take stenographic notes of proceedings in said courts, in which oral proofs shall be given, in case of the death of any witness, deponent or affiant, after examination and before the stenographer's notes of such examination shall have been transcribed, such notes, after being fairly transcribed and authenticated by the certifi cate of the surrogate, shall be filed in his office, and be deemed to be the record of the proofs so taken, without any signing thereof by such witnesses. a. Dismissal of the complaint.-It is irregular to take a dismissal of the complaint founded upon service of notice of trial or hearing, unless the cause has first been placed upon the calendar. Browning v. Paige, 7 How. 487. b. Mortgage foreclosure.-In an action to foreclose a mortgage, the defendants denied that it was given to secure subsequent advances, and the reply denied any counterclaim; held, that the case was one in which the fact of settlement might be tried by a referee, and that it was proper that it should be so tried. Carr v. Wehrnan, 2 Rob. 663. c. Time how computed.-Since the Code, the day of service of the notice should be excluded, and the first day of the court included in the computation of time for service of notice of trial. Dayton v. McIntyre, 5 How. 117; S. C. 3 Code R. 164. See, also, § 407, post. d. Mistake in notice.-In one case there was a notice of trial served in the usual form for the circuit, which specified that the cause would be brought to trial, and an inquest taken, etc., on the third Thursday instead of the third Monday, the appointed first day of the circuit, where it was apparent that the notice had not, in fact, misled; held, not irregular. New York Central Insurance Co. v. Kelsey, 13 How. 535. If the party wishes to render the notice ineffective, he must return it at once; by keeping it he must be regarded as intending to waive the defect. Silliman v. Clark, 2 How. 160; New York Central Insurance Co. v. Kelsey, supra. See, also, Fassett v. Dorr, 11 Wend. 178; Bander v. Covill, 4 Cow. 60; Quick v. Merrill, 3 Caines R. 133. e. No notice given.-On a proper application by the defendant, a verdict obtained by the plaintiff will be set aside if no notice of trial has been given, or the n:tice is clearly irregular or insufficient. Jenks v. Payne, 15 Johns. 399. f. Notice of trial to all defendants. In a case where all the defendants appear, but one or more of them do not put in an anwer, it is necessary to give them all notice of tial, those who do not answer as well as those who do. Tracy v. New York Steam Faucet 1 E. D. Smith, 349. 9. Notice or argument on appeal. In the first judicial district there will be but one notice of trial from either party. This provision does not apply to notice of argugument on appeal to the general term. Walsh v. Gregory, 19 Abb. 363. h. Counterclaims.-In a case where counterclaims are set up by the defendant in his answer, and the complaint is dismissed on the defendant's motion, the plaintiff having July excepted to such dismissal, he (the plaintiff) has a right to demand that such counterclaim be passed upon by the jury; the defendant cannot withdraw it and bring a new action for the same cause. Miller v. Freeborn, 4 Rob. 608. i. Two actions between same parties. In a case where there are two or more actions pending between the same parties, one of which only is noticed for trial, the notice will be considered insufficient unless it specify which action is meant to be brought to trial. Lisher v. Parmelee, 1 Wend, 22. j. Defendants not all served.-Unless all the defendants have been served with the summons, or have appeared in the action, it cannot be brought on to trial by one or more of the defendants who have been served. Morris v. Crawford, 16 Abb 124; Ward v. 'Dewey, 12 How. 193. k. Stenographer.-Where a case on appeal is proposed, and the respondent makes affidavit that the stenographer's notes taken on the trial are necessary, so that he may be | enabled properly to propose amendments to trial. If his motion is denied, he is entitled m. Pending appeal action cannot be tried.-Where one of several defenses has been stricken out by the special term as irrelevant, and an appeal has been taken to the general term, it is improper for the plaintiff to try the cause on the remaining issues of fact, at the circuit, while the appeal is pending. Trustees of Penn Yan v. Forbes, 8 How. 285. Aff'd on appeal to the general term. id. 287. n. Affecting the judgment.-In case of joint defendants, until all the issues against one of them are disposed of, any judgment in favor of either party is irregular; and until a joint defendant is wholly out of the action as a defendant, he has a right to appear at every trial of the issues. Brown v. Richardson, 4 Rob. 603. While a judgment rendered on issue joined without notice of trial or appearance at the trial, is not ipso facto void, it is irregular, and liable to be vacated on motion. People ex rel. Barrett v. Bacon, 18 Mich. (5 Jenn.), 247. § 257. [212.] Order of disposing of issues on the calendar. The issues on the calendar shall be disposed of in the following order; unless, for the convenience of parties, or the dispatch of business, the court shall otherwise direct: 1. Issues of fact to be tried by a jury; § 5. Whenever any widow bringing an action for dower shall make it appear to the court, or a justice thereof, in which such action or appeal is pending, that she has no sufficient means of support aside from the property admeasured to her as in the fourth section of this act set forth, such action or appeal shall have a preference upon the calendar of the court in which the same is pending. Laws of 1869, ch. 433, § 5. SECTION 1. Actions in which executors and administrators are sole plaintiffs or sole defendants, and actions for the construction of, or adjudication upon, a will, in which the administrators with such will annexed, or the executors of such will, are joined as plaintiffs or defendants with other parties, shall have a preference in the court of appeals and in the supreme court at the general, special and circuit terms thereof, over all actions except in criminal cases, and may be moved out of their order accordingly. Laws of 1870, ch. 49, |