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PART III.

deposit, deliver, or convey it, in conformity with the direction of the court.

When the answer of the defendant, expressly or by not denying, admits part of the plaintiff's claim to be just, the court on motion may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.

Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723;

1858, ch. 306; 1862, ch. 460. 9 N. Y., 147; 26 B., 199; 10 B., 48; 22 How. P. R., 158; 18 How. P.

R., 41; 16 How. P. R., 193; 13 How. P. R., 514; 12 How. P. R., 112; 11 How. P. R., 204, 360; 10 How. P. R., 57, 428; 9 How. P. R., 101; 5 How. P. R., 126; 12 Ab., 63; 7 Ab., 94; 4 Ab., 142, 252; 3 Ab., 255; 2 Ab., 235; 1 Ab., 225, 229, 393, 399, 477.

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TITLE VIII.

OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS.
CHAPTER I. Judgment upon failure to answer.

II. Issues and the mode of trial.
III. Trial by jury.
IV. Trial by the court.

V. Trial by referees.
VI. The manner of entering judgment.

CHAPTER I.

Judgment, what

Judgment on failare of defendant to answer.

JUDGMENT UPON FAILURE TO ANSWER.
SEC. 245. Judgment, what.

246. Judgment on failure of defendant to answer.

247. Judgment on frivolous demurrer, answer or reply.
$ 245. A judgment is the final determination of the rights
of the parties in the action.

Amended by Laws of 1852, ch. 392.
6 N. Y., 465; 4 N. Y., 417; 22 B., 600; 9 Ab., 194; 8 Ab., 295; 4 Ab.,

92; 3 Ab., 387; 18 How. P. R., 83; 11 How. P. R., 200; 8 How.

P. R., 276, 328; 6 How. P. R., 127 ; 5 How. P. R., 199; 3 Bos., 644. $ 246. Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract, for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the provisions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice

СНАР. XI

of appearance in the action he shall be entitled to five days' notice of the time and place of such assessment.

Where the defendant, by his answer in any such action, shall not deny the plaintiff's claim, but shall set up a counterclaim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim, over the said counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counter-claim, which statement shall be annexed to and be a part of the judgment roll.

2. In other actions the plaintiff may, upon the like proof apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant gave notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint.

3. In actions where the service of the summons was by publication the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defence.

Amended by Laws of 1851, ch. 479; 1858, ch. 306.
16 N. Y., 309; 28 B., 664; 23 B., 405; 9 B., 378; 8 B., 78; 19 How. P.

R., 164; 17 How. P. R., 99; 15 How. P. R., 61, 92; 13 How. P. R.,
196; 12 How, P. R., 343; 11 How. P. R.. 500; 6 How. P. R., 308;
5 How. P. R., 155, 233; 4 How. P. R., 77; 8 Ab., 300; 6 Ab., 4, 15,
336; 5 Ab., 389; 4 Ab., 449, 451; 3 Ab., 388; 2 Ab., 115, 382; 1

Ab., 279. $ 247. If a demurrer, answer, or reply be frivolous, the Judgment party prejudiced thereby, upon a previous notice of five lour do

PART III. murrer anBwer or reply.

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days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.

23 N. Y., 163; 18 N. Y., 320; 28 B., 652; 27 B., 633; 19 B., 198; 16 B.,

298; 15 B., 16; 12 B., 302; 7 B., 582; 22 How. P. R., 470; 21 How. P. R., 450; 19 How. P. R., 450; 18 How. P. R., 240; 16 How. P. R., 34; 15 How. P. R., 186, 267; 12 How. P. R., 26, 153, 400; 11 How. P. R., 398; 10 How. P. R., 19, 451, 457; 9 How. P. R., 150; 8 How. P. R., 34, 149, 163, 274, 397, 414; 7 How. P. R., 396; 6 How. P. R., 21, 312, 329, 475; 5 How. P. R., 14, 31, 247; 13 Ab., 312; 12 Ab., 63; 11 Ab., 439; 9 Ab., 27; 8 Ab., 436; 6 Ab., 13; 4 Ab., 95; 3 Ab., 1; 1 Ab., 190; 2 Hilt., 475.

CHAPTER II.

ISSUES AND THE MODE OF TRIAL.

fact,

SEC. 248. The different kinds of issues.

249. Issue of law.
250. Issue of fact.
251. On issues of both law and fact, the issue of law to be first tried.
252. Trial, what.
253. Issues how to be tried.
254. The same.
255. All issues to be tried before a single judge, &c.
256. Either party may give notice of trial. Note of issue.

257. Order of disposing of issues on the calendar. The differ

$ 248. Issues arise upon the pleadings, when a factor ent kinds of conclusion of law is maintained by the one party and conissues.

troverted by the other. They are of two kinds:

1. Of law; and

2. Of fact. lesne of

S 249. An issue of law arises, law. 1. Upon a demurrer to the complaint, answer or reply, or to some part thereof.

1 E. D. S., 386. Isone of $ 250. An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or

2. Upon new matter in the answer controverted by the reply; or

3. Upon new matter in the reply, except an issue of law is joined thereon.

3 Ab., 156. On iesnes $ 251. Issues both of law and of fact may arise upon and fact, different parts of the pleadings in the same action. In such the issue of law to be

cases, the issues of law must be first tried unless the court first tried. otherwise direct.

8 How. P. R., 286; 9 Ab., 50. Trial, $ 252. A trial is the judicial examination of the issues defined. between the parties, whether they be issues of law or of fact.

Amended by Laws of 1851, ch. 479; 1852, ch. 393.
11 B., 341; 19 How. P. R., 119; 10 How. P. R., 400; 8 How. P. R., 34;

7 How. P. R., 354; 6 How. P. R., 274, 419; 5 How. P. R., 155; 13

Ab., 308; 10 Ab., 314; 8 Ab., 295. Iesnes how S 253. An issue of law must be tried by the court, unless tried.

it be referred, as provided in sections two hundred seventy,

of both law

CHAP. Xi

and two hundred and seventy-one. An issue of fact in an
action for the recovery of money only, or of specific, real or
personal property, or for a divorce from the marriage con-
tract on the ground of adultery, must be tried by a jury,
unless a jury trial be waived, as provided in section two hun-
dred and sixty-six, or a reference be ordered as provided in
sections two hundred and seventy, and two hundred and
seventy-one.

As amended by Laws of 1852, ch. 392.
5 N. Y., 393; 26 B., 361; 19 B., 203; 4 How. P. R., 423; 11 Ab., 246;

10 Ab., 107; 9 Ab., 2; 7 Ab., 200; 3 Ab., 149. $ 254. Every other issue is triable by the court, which, Issues, however may order the whole issue, or any specific question of fact involved therein, to be tried by a jury ; or may refer it, as provided in sections two hundred and seventy, and two hundred and seventy-one.

5 N. Y., 393; 27 B., 192, 336; 26 B., 361; 8 B., 575; 11 Ab., 246; 10

Ab., 107; 7 Ab., 1, 71, 200; 4 Ab., 180; 3 Ab., 127, 149, 170, 478;
16 How. P. R., 294; 11 How. P. R., 440; 10 How. P. R., 384; 6

How. P. R., 271. $ 255. All issues of fact, triable by a jury or by the court, All issues

of fact to be must be tried before a single judge. Issues of fact in the tried by supreme court, must be tried at a circuit court when the trial single judge is by jury, otherwise at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise direct, have preference on the calendar.

Amended by Laws of 1851, ch. 479; 1852, ch. 392.

27 B., 192; 2 Ab., 164. $ 256. At any time after issue, and at least fourteen days Notice of before the court, either party may give notice of trial. The note of party giving the notice shall furnish the clerk, at least eight days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

In the first judicial district there need be but one notice of Proceed. trial, and one note of issue from either party, and the action judicial shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In the same district the courts may direct the employment of Stenograph a stenographer, in such cases as appear to them to require it, employed. and may order the expense occasioned thereby to be paid by the parties, not exceeding, however, five dollars a day to each party.

issue.

Amended by Laws of 1858, ch. 306; 1859, ch. 428; 1860, ch. 459 ;

1863, ch. 392.
18 B., 597; 21 How. P. R., 88; 8 How. P. R., 249; 7 How. P. R., 489;

9 Ab., 2; 7 Ab., 94; 6 Ab., 14; 1 Ab., 48. $ 257. The issues on the calendar shall be disposed of in Order of the following order; unless, for the convenience of parties, or of Ingues the dispatch of business, the court shall otherwise direct :

ings in Arst

district,

may be

on the calendar.

PART III.

1. Issues of fact to be tried by a jury ;
2. Issues of fact to be tried by the court;
3. Issues of law.

8 B., 575; 11 Ab., 246.

CHAPTER III.

TRIAL BY JURY.

to trial.

Plaintiff to

copy of

muinmons,

SEC. 258. Either party may bring issue to trial.

259. Plaintiff to furnish court with a copy summons, pleadings, &c.
260. General and special verdicts defined.
261. Verdict in action for recovery of specific personal property; when in action

for recovery of money only, or real property, jury may render either

general or special verdict; and when court may direct special finding. 262. On special finding, with general verdict, former to control. 263. In actions for recovery of money only, jury to assess damages. 264. Entry of verdict and judgment. Review of trial.

265. Motions for new trial, &c. Either

$ 258. Either party giving the notice, may bring the issue party may bring issue

to trial, and in the absence of the adverse party, unless the
court, for good cause, otherwise direct, may proceed with his
case, and take a dismissal of the complaint, or a verdict or
judgment, as the case may require. A separate trial between
a plaintiff and any of the several defendants, may be allowed
by the court, whenever, in its opinion, justice will thereby be
promoted.

As amended by Laws of 1851, ch. 479.
29 B., 547; 18 B., 597; 14 B., 577; 7 How. P. R., 489; 6 Ab., 14; 1

Ab., 3, 48; 1 E. D. S., 432; 2 S. 8. C., 142. $ 259. When the issue shall be brought to trial by the coart with plaintiff, he shall furnish the court with a copy of the sum

mons and pleadings with the offer of defendant, if any shall pleadings. have been made. When the issue shall be brought to trial by

the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.

As amended by Laws of 1851, ch. 479.

3 Ab., 151. General

$ 260. A general verdict is that by which the jury proand special nounce generally upon all or any of the issues, either in favor verdicts defined. of the plaintiff or defendant. A special verdict is that by

which the jury find the facts only, leaving the judgment to the court.

23 N. Y., 541; 27 B., 192; 7 Ab., 91. Verdict in $ 261. In an action for the recovery of specific personal recovery of property, if the property have not been delivered to the plainspecific per- tiff, or the defendant by his answer claim a return thereof, sonal perty. the jury shall assess the value of the property, if their verdict

be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.

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