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a motion for a new trial, unless an order for such a stay is procured and served; and the entry, collection, or other enforcement of a judgment does not prejudice a subsequent motion for a new trial. Where a new trial is granted, the court may direct and enforce restitution, as where judgment is reversed upon appeal.
§ 1006. The taking of an exception, upon a trial by a jury, or the statement thereof in a case, as prescribed in this article, does not prejudice a motion for a new trial, on the ground that the verdict was contrary to evidence; but such a motion may be made before or after the hearing of the exception; or, in the discretion of the court before which the exception is heard, at the time of the hearing.
§ 1007. [Am'd 1883, 1884.] The notes of an official stenographer, or assistant stenographer, taken at a trial, when written out at length may be treated, in the discretion of the judge, as minutes of the judge upon the trial for the purposes of this article. When, by provision of law, a justice of the supreme court of this State, by his order, in writing, duly entered in a county clerk's office in the judicial district of said justice, apportions the stenographer's salary among the several counties of said judicial district, or requires the duplication of any stenographic notes taken in said judicial district, no notice of the application for said order shali be adjudged necessary upon any board of supervisors in said judicial dis trict, and the liability for compensation for such services shall be deemed fixed upon the performance of the work.
§ 1008. [Am'd 1877.] 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. 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. His refusal so to assent annuls a wai
44 lius, 81.
109 N.Y.468. 31 Abb. N. C. 435; 8 Misc. 488.
82 N. Y. 576.
ver, made as prescribed in subdivision second, third, or fourth of the next section.
§ 1009. [Am'd 1877.] 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, if 93 N. Y. 539. the adverse party so moves it, by failing to claim a trial by 82 Hun, 531. a jury, before the production of any evidence upon the trial. § 1010. 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, at 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 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.
53 Id. 82.
3 How. Pr. N. S. 350.
136 N.Y. 509. 80 Hun, 138. 144 NY508.
§ 1011. [Am'd 1879.] 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 9 App. Div. 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. It 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.
80 Hun, 138.
§ 1012. Qualification of the last section. [Am'd 1898, amendment to take effect September 1, 1898.] But a reference shall 24 Misc. 304. not be made, of course, upon the consent of the parties, in an action to annul the 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. If the referee, thus desig. nated, refuses to serve, or if a new trial of an action tried by a referee, so designated, is granted, the court must upon the application of either party, appoint another referee.
31 Hun, 286;
§ 1013. The court may, of its own motion, or upon the ap18 Abb. N.C. plication of either party, without the consent of the other, direct a trial of the issues of fact, by a referec, 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.
N. Y. 96.
§ 1014. 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, chey must be tried, either before or after the filing of the re
rt, 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.
$1015. 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 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.
1016. 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 eight hundred and fortytwo of this act. But where all the parties, whose interests 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.
$ 1017. 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 court.
1018. The trial, by a referee, of an issue of fact, or of an issue of 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 power as the court, to grant adjournments, to preserve order, and to punish the violation thereof. 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; 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 upon like terms, as similar powers are exercised by the court, upon a trial.
§ 1019. [Am'd 1882.] 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, the referee's written report must be either filed with the clerk, or delivered to the attorney for one of the parties,
7 Civ. Pro.
21 Abb. N.
30 Abh. N.
is App. Div.
21 Misc. 344.
24 N.Y.State Rep. 824.
53 Hun, 82.
53 Hun, 441.
124 N. Y. 83.
132 N.Y.488. 88 Huu, 458.
11 Misc. 569. 14 Id. 309 70 StateRep.
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.
§ 1020 Where the double, treble, or any 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.
§ 1021. [Am'd 1879, 1895, amendment to take effect January 1, 1896.] 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.
§ 1022. [Am'd 1877, 1894, 1895, amendment to take effect January 1, 1896.] The decision of the court or the report of a referee, upon the trial of the whole issues of fact, may state Separat-ly 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 judg ment 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 157 N Y. 236; grant to either party the judgment which the facts warrant.
91 Hun 502.
92 Id. 385. 150 NY. 395.
1. Id. 282.
151 d. 199,
11 App. Div.
12 Id. 266.
1 Id. 443.
- Id. 301.
13 Misc. 507; 145 N. Y. 531: 26 App. Div. 620; 151 N. Y. 199; Id. 229; Id. 715.
§ 1023. [Repealed, 1894.]
1024. 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 annula marriage, or for a divorce, or a separation. A judge cannot be appointed a refere, in an action brought in the court of which he is a julge, except by the written consent of the parties; and in that case he cannot receive any compensation as referee.
§ 1025. Where the court is authorized to appoint a ref eree, 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.
1026. 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.
Trial jurors, except in New York and Kings counties: mode
2. Mode of selecting, drawing, and procuring the attendance
3. Mode of striking and procuring a special jury, and of pro-
4. Penalties for non-attendance.
§ 1027. [Am'd 1895.] 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. [Am'd 1895, amendment to take effect September 1, 1895.] Not less than twenty-one nor more than seventy years of age.
3. Assessed, for personal property, belonging to him, in his own right, to the amount of two hundred and fifty dollars; or the owner of a freehold estate in real property, situated in the county, belonging to him in his own right, of the value of one hundred and fifty dollars; or the husband of a woman who is the owner of a like freehold estate, belonging to her, in her own right.
4. In the possession of his natural faculties, and not infirm or decrepit.
5. Free from all legal exceptions; of fair character; of approved integrity; of sound judgment; and well informed.
1028. But a person who was assessed, on the last assessment-roll of the town, for land in his possession, held under a contract for the purchase thereof, upon which improvements, owned by him, have been made, to the value of one hundred and fifty dollars, is qualified to serve as a trial juror, although he does not possess either of the qualifications specified in subdivision third of the last section, if he is qualified in every other respect.
1029. Each of the following officers is disqualified to serve as a trial juror :
See c. 369, L. 1895, creating a commissioner of jurors for each county having a population of three hundred thousand or more except New York and Kings, also providing for the making up of jury lists and the drawing aud service of jurors.