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out of the court, for judgment thereon, and judgment ay be given accordingly.

$ 248. Issues arise upon the pleadings, when a fact or inclusion of law is maintained by the one party and mtroverted by the other. They are of two kinds : 1. Of law; and 2. Of fact.

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

$ 250. An issue of fact arises, 1. Upon a material allegation in the complaint conroverted by the answer; or,

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

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

$ 251. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct.

$ 252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

$ 253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact, in an action for the recovery of money 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 give 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 judg. ment 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.

§ 247. If a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five 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.

$ 248. Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds:

1. Of law; and 2. Of fact.

$ 249. An issue of law arises,

1. Upon a demurrer to the complaint, answer or reply, or to some part thereof.

$ 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.

§ 251. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct.

§ 252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or

of fact.

$ 253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy 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 divorce from the marriage contract on the ground a adultery, must be tried by a jury, unless a jury tria be waived as provided in section two hundred an sixty-six, or a reference be ordered as provided i sections two hundred and seventy and two hundred ani seventy-one.

§ 254. Every other issue is triable by the court, which however, may order the whole issue, or any specifi question of fact involved therein, to be tried by a jury or may refer it, as provided in sections 270 and 271.

$ 255. All issues of fact, triable by a jury or by tht court, must be tried before a single judge. Issues of fact in the supreme court must be tried at a circuit cour when the trial is by jury, otherwise at a circuit cour 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 otnerwise direct, have preference on the calendar.

§ 256. At any time after issue, and at least fourteen days before the court, either party may give notice of trial. The 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 trial, and one note of issue from either party, and the action shall then remain on the calendar unt'l disposed of, and when called may be brought to

trial by the party giving the notice. In every action in which issue of fact is now joined, and the action is now placed upon the calendar of the supreme court of the first judicial district, or of the superior court of the city of New York, or of the court of common pleas, for the city and county of New York, the party who shall have filed such note of issue, shall, as a condition precedent to such action being brought to trial, pay to the clerk of the court the sum of three dollars; and in every action in either of the said courts, commenced after the passage of this act, the party who shall file therein a first note of issue of fact, shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars: and the amounts so received shall be accounted for under oath, and paid over monthly, by the clerk of each of said courts, to the comptroller of the city of New York, and by him deposited in the county treasury, to be used as a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section. If the fund thus created, be inadequate to pay such salaries, the additional amount necessary for such payment shall be appropriated and paid from the fund of county contingencies, to which fund any surplus of the sums so paid over to the comptroller as hereinbefore provided, shall be credited.

Each of the courts hereinbefore named shall appoint a stenographer for the circuit, trial term or special term at which issues of fact are tried, which constitutes a separate branch of such court, who shall be a sworn officer of the court, shall hold office during the pleasure of the court, and shall be paid a salary of twenty-five hundred dollars per annum, in like manner as the salaries of the other officers of the courts are now paid. It shall be the duty of every stenographer so appointed

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