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TRIALS; INCLUDING JURORS AND JURIES. TITLE I.-TRIALS GENERALLY; INCLUDING EXCEPTIONS AND MOTION FOR A NEW TRIAL.
TITLE II-TRIALS WITHOUT A JURY.
TITLE III.-TRIAL JURORS, EXCEPT IN NEW YORK AND KINGS
TITLE IV.-TRIAL JURORS IN NEW YORK AND KINGS COUN-
TITLE V.-TRIAL BY JURY.
TITLE VI-MISCELLANEOUS PROVISIONS; INCLUDING THOSE
Trials generally; including exceptions and motion for a new trial.
ARTICLE 1. Issues, and the mode of trial thereof.
ISSUES, AND THE MODE OF TRIAL THEEREOF.
7963. Issues defined, different
kinds of issues.
964. When issues of law arise;
965. Issues to be tried.
967. But court may direct the
970. Order for trial by jury, of
971. Id.; when discretionary.
972. Trial of the remainder of
974. Counterclaim to be deem-
976. What issues to be tried be-
977. Notice of trial and note of
978. Order of disposition of in-
980. Either party may bring is-
981. What paper to be furnished
963. 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.
$964. 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 information 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.
7 Misc. 542
96 N.Y. 108.
52 N.Y. Sup er. Ct. (J. & S.)66; Id.355. 82 Hun, 970.
52 N. Y. Super. Ct. (J. & 9.)355.
129 N. Y. 274.
131 NY. 215.
81 Hun, 5.
82 Hun, 439.
88 n. 109. 157 N.Y 236.
109 N. Y. 5.
07 N. Y. 1.
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.
§ 965. [Am'd 1879.] 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.
§ 966. [Am'd 1877.] 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 prescribed in the next section.
§ 967. [Am'd 1877.] A separate trial, between the plaintiff and one or more defendants, 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 disposition of the issues, may be directed by the court, in its discretion. Such a direction may be given, in an order, made upon notice; or, except where an application for such an order has been denied, it 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.
§ 968. [Am'd 1877.] 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 directed:
105 N. Y. 319; 109 Id. 202; 25 N. Y. State Rep. 52; Id. 271; 12 N. Y. State Rep. 512; 7 App. Div, 317.
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.
§ 969. 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 sourt, unless a reference or a jury trial is directed.
§ 970. [Am'd 1877, 1891, 1892.] Where a party is entitled by the constitution, or by express provision of law, to a trial by a jury, of one 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, as 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.
$971. [Am'd 1877.] 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.] If the questions, directed to be tried
by a jury, as prescribed in the last two sections, do not em- 109 N. Y. 5. brace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee.
§ 973. [Repealed 1977.1
§ 974. [Am'd 1877.] Where the defendant interposes a Counterclaim, and thereupon demands an affirmative judgnent 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. 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, amendment to take effect January 1, 6 Misc. 117. 1896.] 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, of the supreme court, as prescribed in the general rules of practice."
$977. Notice of trial; note of issue. [Am'd 1877, 1882, 1896, 1898, 1899, amendment to take effect September 1, 6 Civ. Pro. 1899.] At any time after the joinder of issue, and at least 29 App. Div. fourteen days before the commencement of the term, either 370. party may serve a notice of trial. The party serving the 31 Id. 305. notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law; and, if an issue of fact, whether it is triable by a jury, or by the court without a jury. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The clerk must prepare the calendar and have the necessary copies ready for distribution at least five days before the commencement of the term. In the counties of New York, Kings, Queens, Richmond, Albany, Erie, Monroe and Onondaga, where a party has served a notice of trial, and filed a note of issue, for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a succeeding term; and the action must remain on the calendar until it is disposed of. § 978. [Am'd 1877.] The issues on the calendar must be arranged by the clerk, in the following order:
1. Issues of fact.
Issues of law.
Where a jury is in attendance, the issues must be disposed of in the same order; unless, for the convenience of parties, or the dispatch of business, the judge holding the term otherwise directs.
§ 979. Where a jury is not in attendance, issues of law have a preference over issues of fact; unless the judge holding the term otherwise directs.
24 N. Y.State
§ 980. [Am'd 1877.] Either party, who has served the notice, may bring the issue to trial; and, in the absence of the Rep. 102. adverse party, unless the judge holding the term, for good cause, otherwise directs, may proceed with the cause, and take a dismissal of the complaint, or a verdict, decision, or
32 Hun, 71.
88 N. Y. 258;
43 Hun, 162;
32 Hun, 71. 99 N. Y. 429. 40 Hun, 460.
6 Week. Dig. 125.
29 Hun, 137.
32 Hun, 71.
judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified.
§ 981. Where the issue is brought to trial by the plaintiff, he must furnish the court with copies of the summons and pleadings, and of the offer, if any has been made. Where the issue is brought to trial by the defendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant.
THE PLACE OF TRIAL.
982. Certain actions to be tried,
983. Other actions, where the
984. Other actions, according
985. Place of trial, if proper
change; proceedings thereupon.
When court may change the place of trial.
Effect of changing the place of trial.
989. Effect of order changing place of trial.
990. Issues of law, where triable.
991. This article applicable only to the supreme court.
$982. Each of the following actions must be tried in the county, in which the subject of the action, or some part thereof, is situated: an action of ejectment; for the partition of real property; for dower; to foreclose a mortgage upon real property, or upon a chattel real; to compel the determination of a claim to real property; for waste; for a nuisance; or to procure a judgment, directing a conveyance of real property; and every other action to recover, or to procure a judgment, establishing, determining, defining, forfeiting, annulling, or otherwise affecting, an estate, right, title, lien, or other interest, in real property, or a chattel real. But where all the real property, to which the action relates, is situated without the State, the action must be tried, as prescribed in section nine hundred and eighty-four of this act.
§ 983. [Am'd 1877, 1890.] An action for either of the following causes, must be tried in the county where the cause of action, or some part thereof, arose.
1. To recover a penalty or forfeiture, imposed by statute, except that where the offense, for which it is imposed, was committed on a lake, river or other stream of water, situated in two or more counties, the action may be tried in any county bordering on the lake, river or stream, and opposite to the place where the offence was committed. But in an action where the people of the State are a party to recover a penalty for trespass upon the lands of the forest preserve the action may be tried in a county adjoining the county where the cause of action arose.
2. Against a public officer, or a person specially appointed to execute his duties, for an act done, in virtue of his office, or for an omission to perform a duty, incident to his office; or against a person, who by the command or in the aid of a public officer, has done anything touching his duties.
3. To recover a chattel distrained, or damages for distraining a chattel.
§ 984. An action, not specified in the last two sections, must be tried in the county, in which one of the parties re
PLACE OF TRIAL
sided, at the commencement thereof. If neither of the parties 21N.Y.State then resided in the State, it may be tried in any county, which Rep. 67. She plaintiff designates, for that purpose, in the title of the complaint.
985. If the county, designated in the complaint, as the place of trial, is not the proper county, the action may notwithstanding be tried therein; unless the place of trial is changed to the proper county, upon the demand of the defendant, followed by the consent of the plaintiff, or the order of the court.
8 Abb. N. C. 246.
$986. Where the defendant demands that the action be tried in the proper county, his attorney must serve upon the plaintiff's attorney, with the answer, or before service of the 54 How. Pr. answer, a written demand accordingly. The demand must specify the county, where the defendant requires the action to be tried. If the plaintiff's attorney does not serve his written consent to the change, as proposed by the defendant, within five days after service of the demand, the defendant's attorney may, within ten days thereafter, serve notice of a motion to change the place of trial.
13 N. Y. 442. 2 App. Div. 566; 5 Id. 621.
66 How. Pr.
23 N.Y.State Rep. 396.
987. The court may, by order, change the place of trial, 32 Hun, 71.
in either of the following cases:
1. Where the county, designated for that purpose in the complaint, is not the proper county.
2 Where there is reason to believe, that an impartial trial cannot be had in the proper county.
3. Where the convenience of witnesses, and the ends of justice, will be promoted by the change.
$ 988. [Am'd 1877.] Where the place of trial is changed to another county, the subsequent proceedings shall be had in the county to which the change is made, the same as if it had been designated in the complaint, as the place of trial; except as otherwise directed by the court, or provided by the written consent of the parties, filed with the clerk. And the clerk of the county, from which it is changed, must forthwith deliver to the clerk of the county, to which it is changed, all papers filed in the action, and certified copies of all minutes and entries relating thereto, which must be filed, entered, or recorded, as the case requires, in the office of the last-named clerk.
$989. [Am'd 1877.] An order to change the place of trial takes effect, upon the entry thereof, in the office of the clerk of the county, from which the place of trial is changed. But for the purposes of the place of hearing a motion to set it aside, or an appeal therefrom, the place of trial is deemed unchanged.
990. [Am'd 1879.] An issue of law may be tried in any County within the judicial district embracing the county wherein the action is triable; but after the trial, the decision, and all other papers relating to the trial must be filed, and the judgment rendered must be entered in the last named county.
$991. This article is applicable to an action in the supreme court only.
18 Week. Dig. 440.