§ 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 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.

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 prescribed 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 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 disposttion 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.

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 directed: 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 tril

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

Co. Proc., portions of §§ 253 and 254. See Rule 40.

§ 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 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 distinetly 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.

L. 1892, ch. 188. See Rule 31.

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

In an action, where a party is not entitled, as of right, to a triai 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. [Added, 1907.] Separate trial of one or more issues.

The court in its discretion may order one or more issues to be separately tried prior to any trial of the other issues in the case. L 1907, ch. 526. In effect Sept. 1, 1907.

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, 1900.] 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 may be tried at a trial term or a special term of the supreme court as prescribed in the general rules of practice. Except in

the first and second judicial districts an issue of law may be brought on and tried at any term of court as a contested motion. L. 1895, ch. 946; L. 1900, ch. 569. In effect Sept. 1, 1900.

§ 977. [Am'd, 1877, 1882, 1896, 1898, 1899, 1903, 1904, 1907.] Notice of trial and note of issue. Calendar to be prepared.

At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the 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 jury, or by the court, without a jury, and the particular nature of the same and the object of the action. 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 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. The appellate division of each department may provide by rule for the manner of making up calendars in each county embraced within the department; and for the classification for the purposes of trial, of aetions placed upon such calendars; and may also provide for the making up of two or more calendars within such classification. In the counties of New York, Kings, Queens, Richmond, Albany, Erie, Monroe, Onondaga, Schenectady and Westchester, 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.

Co. Proc., part of $256, as am'd by L. 1876, ch. 431. $ 9; L. 1896, eh. 565; L. 1898, ch. 70; L. 1899, ch. 18; L. 1903, ch. 51; L. 1904, ch. 474; L. 1907, ch. 211. In effect July 1, 1907.

§ 978. [Am'd, 1877.] Issues how arranged. Order of disposition at a jury term.

The issues on the calendar must be arranged by the clerk in the following order:

1. Issues of fact.

2. 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. Substitute for Co. Proc., § 257; am'ts.

§ 979. Id.: when a jury does not attend.

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.

See concluding sentence Co. Proc., § 255.

§ 980. [Am'd, 1877.] Either party may bring issue to trial Either party, who has served the notice, may bring the issue to trial; and, in the absence of the 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 verdiet, decision, or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified.

Co. Proc., § 59. am'd; L. 1876, ch. 431, § 10. See Rule 28.

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

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.

Co. Proc., 250, am'd. See Rule 19.

247

ARTICLE SECOND.

The place of trial.

Sec. 982. Certain actions to be tried, where the subject thereof is situated. 983. Other actions, where the cause thereof arose.

984. Other actions, according to the residence of the parties.

985. Place of trial, if proper county not designated.

986. Defendant may demand change; proceedings thereupon.

987. When court may change the place of trial.

988. 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. Certain actions to be tried, where the subject thereof is situated.

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 984 of this act.

Substitute for part of Co. Proc., § 123.

§ 983. [Am'd, 1877.] Other actions, where the cause thereof arose.

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 offence, 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. Last sentence in effect Sept. 1, 1890, L. 1890, ch. 179.

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 any thing touching his duties.

3. To recover a chattel distrained, or damages for distraining a chattel.

§ 984. parties. An action, not specified in the last two sections, must be tried in the county, in which one of the parties resided, at the commencement thereof. If neither of the parties then resided in the State, it may be tried in any county, which the plaintiff designates, for that purpose, in the title of the complaint.

Other actions, according to the residence of the

Co. Proc., § 125.