§ 999. [Am'd, 1889.] Motion for new trial upon judge's minutes; appeal from order thereupon, The judge, presiding at a trial by a jury, may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict or a direction dismissing the complaint and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law. If an appeal is taken from the order, made upon the motion, it must be heard upon a case prepared and settled in the usual manner. Co. Proc., part of § 264, am'd. See § 1003, post. § 1000. [Am'd, 1895.] When and how exceptions, taken upon a jury trial, heard by the appellate division. Upon the application of a party who has taken one or more exceptions, the judge, presiding at a trial by jury, may, in his discretion, at any time during the same term, direct an order to be entered, that the exceptions so taken be heard, in the first instance, by the appellate division of the supreme court; and that judgment be suspended, in the mean time. At any time before the hearing of the exceptions, the order may be revoked or modified, upon notice, in court or out of court, by the judge who made it; or it may be set aside for irregularity, by the court, at any term thereof. Unless it is so revoked or set aside, the exceptions must be heard upon a motion for a new trial, which must be decided by the appellate division. The motion is deemed to have been made, when the order was granted; and either party may notice it for hearing at a term of the appellate division, upon the exceptions. L. 1895, ch. 946. § 1001. [Am'd, 1895.] Motion for new trial by the appellate division, when trial was by court or referee, Where the decision or report, rendered upon the trial of an issue of fact by the court, without a jury, or by a referee, directs an interlocutory judgment to be entered; and further proceedings must be taken, before the court, or a judge thereof, or a referee, before a final judgment can be entered, a motion for a new trial, upon one or more exceptions, may be made at a term of the appellate division of the supreme court, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The time within which the party must except, for that purpose, to a ruling of law, made, upon such a trial, by the judge or the referee, after the close of the testimony, is ten days after service of a copy of the decision or report, and notice of the entry of the interlocutory judgment thereupon. L. 1895, ch. 946. 1002. When motion for new trial to be made at special term. Restrictions thereupon. In a case, not specified in the last three sections, a motion for a new trial must, in the first instance, be heard and decided at the special term. But where it is founded upon an allegation of error, in a finding of fact, or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment, and it cannot be heard at a special term held by another judge; unless the judge, who presided at the trial, is dead, or his term of office has expired, or he is disqualified for any reason, or he specially directs the motion to be heard before another judge. And a trial by a referee cannot be reviewed, by a motion for a new trial, founded upon such an allegation, except in a case specified in the last section. § 1003. [Am'd, 1895.] Application of this article to trials of specific questions by jury; special provisions applicable thereto. The provisions of this article, relating to the proceedings to review a trial by a jury, are applicable to the trial, by a jury, of one or more specific questions of fact, arising upon the issues, in an action triable by the court. But, except in a case specified in section 970 of this act, a new trial may be granted, as to some of the questions so tried, and refused as to the others; and an error, in the admission or exclusion of evidence, or in any other ruling or direction of the judge, upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion, that substantial justice does not require that a new trial should be granted. Where the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, taken at the trial, to be heard at a term of the appellate division of the supreme court, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. L. 1895, ch. 946. See ante, § 990. § 1004. Motion for new hearing, after trial of specific questions by a referee. In an action triable by the court, where a reference has been made, to report upon one or more specific questions of fact, involved in the issue, a motion for a new hearing may be made at a special term, at any time before the hearing of a motion for final judgment, or the trial of the remaining issues of fact. The motion must be made upon affidavits, unless the court, or a judge thereof, directs a case to be prepared and settled. § 1005. Final judgment, etc., not stayed, by motion for a new trial. Motion may be heard afterwards. The entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception, the preparation or settlement of a case, or 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 a judgment is reversed upon appeal. L. 1832, ch. 128, § 1 (4 Edm. 529), am'd. $1006. When exception not to prejudice motion for new trial. 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. 2 R. S. 422, § 76 (2 Edm. 440), am'd. § 1007. [Am'd, 1883 and 1884.] Notes of stenographer may be treated as minutes of the judge. 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 the 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 shall be adjudged necessary upon any board of supervisors in said judicial district, and the liability for compensation for such services shall be deemed fixed upon the performance of the work. 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. upon a trial. 1019. Referee's report; when to be made; consequence of failure. 1021. Decision of court or report of referee, upon trial of demurrer. 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, if 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 § 266, 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, 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 * Error in engrossing for ** issues." c. 10, t. 2 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. filed, within a time specified in the order. 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 Where be designated by the court, on motion of either party. 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. [Am'd, 1898.] 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 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 designated, 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. Id., 273; L. 1898, ch. 317. In effect Sept. 1, 1898. See Rule 79. § 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. Applies to City Court of New York, L. 1896, Ch. 954, § 2. 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. ▾ 17 257 |