ART. 3. effect of the change, with respect to the subsequent proceedings, is the the place same, as if that county had been designated in the complaint, as of trial. 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. order trial. § 989. An order to change the place of trial takes effect, upon the Effect of entry thereof, in the office of the clerk of the county, from which the changing place of trial is changed. A motion to set it aside, or an appeal there- place of from, must be heard, as if the action was originally triable in the county, to which the place of trial is changed. Where the order is reversed or set aside, the effect is the same, as if an order was then made, to change the place of trial to the county where the action was formerly triable. law, where § 990. An issue of law may be tried in any county, within the judi- Issues of cial district, embracing the county wherein the action is triable; but triable. after the trial, the decision, and all other papers relating to the trial, must be filed, and the order made, or judgment rendered, must be entered in the last named county. § 991. This article is applicable to an action in the supreme court only. This arti cle applicable only to the supreme court. ARTICLE THIRD. EXCEPTIONS, CASE, AND MOTION FOR A NEW TRIAL. SECTION 992. What rulings may be excepted to. 993. Refusal of court or referee, to find upon facts may be excepted to. or referee. 995. Id.; during the trial, or upon the trial by jury. 996. Ruling excepted to; how reviewed. 997. Case, when necessary; how made and settled. 998. When appeal, etc., may be heard without a case. 999. Motion for new trial upon judge's minutes; appeal from order there upon. 1000. When and how exceptions, taken upon a jury trial, heard at general term. 1001. Motion for new trial at general term, when trial was by court or 1002. When motion for new trial to be made at special term. Restrictions 1003. Application of this article to trials of specific questions by jury; spe- 1004. Motion for new hearing, after trial of specific questions by a referee. 1006. When exception not to prejudice motion for new trial. may be ex § 992. An exception may be taken to the ruling of the court or of a what referee, upon a question of law, arising upon the trial of an issue of rulinge fact. Except as prescribed in section one thousand one hundred and cepted to. eighty of this act, an exception cannot be taken to a ruling, upon a question of fact. For the purposes of this article, a trial by a jury is regarded as continuing, until the verdict is rendered. TITLE 1. Refusal of court or § 993. Upon the trial of an issue of fact by a referee, or by the court, without a jury, a refusal to make any finding whatever, upon a quesreferee, to tion of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law, within the meaning of the last find upon facts may be except to. When and how exceptions may be taken, af trial by court or referee. section. § 994. Where an issue of fact is tried by a referee, or by the court, without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted must be taken, by filing a notice ter close of of the exception in the clerk's office, and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken, at any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon. If the notice of exception is filed before the entry of final judgment, it must be inserted in the judgment-roll; if afterwards, it must be annexed to the judgment-roll. In either case, it constitutes a part of the papers, upon which an appeal from the judgment must be heard. Id.; during § 995. In any other case, an exception must be taken, at the time the trial, or upon trial when the ruling is made, unless it is taken to the charge given to the by jury. jury; in which case, it must be taken before the jury have rendered their verdict. It must, at the time when it is taken, be reduced to writing by the exceptant, or entered in the minutes. Ruling excepted to; how reviewed. Case, when necessary; and set tled. § 996. A ruling, to which an exception is taken, as prescribed in the last four sections, can be reviewed only upon an appeal from the judgment, rendered after the trial; except in a case, where it is expressly prescribed by law, that a motion for a new trial may be made thereupon. § 997. Where a party intends to appeal from a judgment, rendered how made after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case, and procure the same to be settled and signed, by the judge or the referee, by or before whom the action was tried, as prescribed in the general rules of practice; or, in case of the death or disability of the judge or referee, in such manner as the court directs. The case must contain so much of the evidence, and other proceedings upon the trial, as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case. If it afterwards becomes necessary to separate the exceptions, the separation may be made, and the exceptions may be stated, with so much of the evidence and other proceedings, as is material to the questions raised by them, in a case, prepared and settled, as directed in the general rules of practice; or, in the absence of directions therein, by the court, upon motion. not necessary to state, in a case, that a finding upon the facts, or a ruling upon the law, was made, which appears in a referee's report, or in the decision of the court, upon a trial by the court, without a jury. § 998. It is not necessary to make a case, for the purpose of moving peal, etc., for a new trial, upon the minutes of the judge, who presided at a trial heard with by a jury; or upon an allegation of irregularity, or surprise; or where out a case. a party intends to appeal from a judgment entered upon a referee's. report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptions, taken as prescribed in section nine hundred and ninety-four of this act. When apmay be Motion for new trial upon It is § 999. 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 ART. 3. set aside the verdict and grant a new trial, upon exceptions; or because judge's the verdict is for excessive or insufficient damages; or otherwise con- minutes trary to the evidence, or contrary to law. If an appeal is taken from appeal the order, made upon the motion, it must be heard, upon a case, pre- thereupon. pared and settled in the usual manner. from order tions, taken ry trial, term. § 1000. Upon the application of a party who has taken one or more When and exceptions, the judge, presiding at a trial by a jury, may, in his dis- how excepcretion, at any time during the same term, direct an order to be entered, upon a juthat the exceptions so taken be heard, in the first instance, at the gen- heard at eral term; and that judgment upon the verdict be suspended, in the general mean time. At any time before the hearing of the exceptions, the order may be revoked or modified, 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 general term. The motion is deemed to have been made, when the order was granted; and either party may notice it for hearing at the general term, upon the exceptions. § 1001. Where the decision or report, rendered upon the trial of an Motion for issue of fact by the court, without a jury, or by a referee, directs an new trial at general interlocutory judgment to be entered; and further proceedings must term, when trial was by be taken, before the court, or a judge thereof, or a referee, before a court or final judgment can be entered; a motion for a new trial, upon one or referee. more exceptions, may be made at the general term, 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. new trial to special § 1002. In a case, not specified in the last three sections, a motion for when moa new trial must, in the first instance, be heard and decided at the tion for special term. But where it is founded upon an allegation of error, in be made at a finding of fact, or ruling upon the law, made by the judge upon the term. Retrial, it cannot be heard at a special term, held by another judge; unless strictions the judge, who presided at the trial, is dead, or his term of office has expired, 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. thereupon. tion of this specific § 1003. The provisions of this article, relating to the proceedings to Applicareview a trial by a jury, are applicable to the trial, by a jury, of one or article to more specific questions of fact, arising upon the issues, in an action trials of triable by the court. But, except in a case specified in section nine questions hundred seventy of this act, a new trial may be granted, as to by jury; special some of the questions so tried, and refused as to the others; and an provisions applicable error, in the admission or exclusion of evidence, or in any other ruling applica 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 the general term, 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. TITLE 2. Motion for new hear ing, after trial of spe cific ques tions by a referee. Final judg. ment, etc., for a new § 1004. 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. The entry of final judgment, and the subsequent proceedings not stayed to collect or otherwise enforce it, are not stayed by an exception, the by motion preparation or settlement of a case, or a motion for a new trial, unless trial. Mo. 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 afterwards. 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. tion may be heard When exception not to preju. dice motion for § 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 new rial. 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. Notes of stenogra pher may § 1007. The notes of an official stenographer or assistant-stenographer, taken at a trial, when written out at length, may be treated, in be treated the discretion of the judge, as the minutes of the judge upon the trial, for the purposes of this article. as minutes of the judge. If trial by jury TITLE II. Trials without a jury. SECTION 1008. If trial by jury waived, action must be tried by the court. 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 be made. 1014. Proceedings where the reference is for trial of part of the issues. 1015. Compulsory reference upon questions incidentally arising. 1016. Referee to be sworn. 1017. Witnesses may be subpoenaed. 1018. General powers of a referee, upon a trial. 1019. Referee's report; when to be made, consequence of failure. 1020. Double or other increased damages. 1021. Decision of court or report of referee, upon trial of demurrer. 1022. Id.; upon trial of the whole issue of fact. 1023. Parties may require court or referee to determine particular questions. 1024. Qualifications of a referee. 1025. Several referees may be appointed. 1026. Proceedings regulated where there are several referees. § 1008. In an action triable by a jury, if the parties waive the trial, waived, ac- by a jury, of the issue of fact, the action must be tried by the court, TITLE 2. without a jury; unless a reference is directed, in a case prescribed by tion must law. But such an action, other than to recover damages for breach of be tried by a contract, cannot be tried by the court, without a jury, unless the the court. judge, presiding at the term where it is brought on for trial, assents to such a trial. If he does not so assent, either party may revoke a waiver, made as prescribed in subdivision second, third, or fourth of the next section: § 1009. A party may waive his right to the trial of the issue of fact, Trial by by a jury, in either 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. jury; how waived. upon trial when to § 1010. Upon a trial, by the court, of an issue of fact or of law, its Decision decision, in writing, must be filed, in the clerk's office, within twenty bo days after the final adjournment of the term, where the issue was tried. court, If it is not so filed, either party may move, at a special term, for a new be filed; trial upon that ground. If the decision has not been filed, when the consemotion is heard, the court must make an order for a new trial, either failure. 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. quence of when and § 1011. Except in a case specified in the next section, the whole Reference issue, or any of the issues in an action, either of fact or of law, must by consent; be referred, upon the consent of the parties, manifested by a written how made. stipulation, signed by their attorneys, and filed with the clerk. Where the stipulation does not name the referee, he may be designated by the 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. last sec § 1012. But a reference shall not be made, of course, upon the con- Qualificasent of the parties, in an action to annul the marriage, or for a divorce tion of the or a separation; or an action against a corporation, to obtain a dissolu- tion. tion 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. ence issues; in § 1013. The court may, of its own motion, or upon the application of Compulsoeither party, without the consent of the other, direct a trial of the Tyrefer issues of fact, by a referee, where the trial will require the examina- the trial of tion of a long account, on either side, and will not require the decision what cases of difficult questions of law. In an action, triable by the court, with- it may be out 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. made. § 1014. Where a reference is made, as prescribed in the last section, Proceedto report upon a specific question of fact, involved in the issue, and the ings where determination of one or more other issues is necessary, in order to ence is for the refer |