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further proceedings before a referee or otherwise, eithes party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto and make a case or exceptions as above provided in case of an appeal. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. But the questions whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon
the appeal to the general term of the same court, as prescribed in section 348.
No finding of facts by the general term shall be required for the purpose of review in the court of appeals, and if the judgment be reversed at the general terın, t shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal : and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review by the court of appeals. And for the purposes of an appeal from a judgment rendered on the report of a referee, or, the decision of a judge on a trial without a jury, it shall not be necessary to insert at large in the case the findings of fact or conclusions of law of such judge or referee, or the exceptions thereto filed, but if the same appear as part of the judgment roll they may be re
ferred to and used on the argument of the appeal with the saine effect as though inserted in the case.
The provisions of this section, and also of section two hundred and seventy-two, as they are hereby amended, shall apply to appeals now pending, as well as to those hereafter brought.
$ 269. On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section 246, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference or assessment by jury may be ordered, as in that section provided.
$ 270. All or any of the issues in the action, whether
of fact or of law, or both, may be referrred, upon the written consent of the parties.
§ 271. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases :
1. Where the trial of an issue of fact shall require the examination of a long account on either side ; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein ; or,
2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,
3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action.
$ 272. The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They shall have the same power to grant ad
journments and to allow amendments to any pleadings, and to the summons, as the court upon such trial, upon the same terms and with the like effect. (They shak have the same power to preserve order and punish all violations thereof, upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance, or refusal to be sworn, or testify, as is possessed by the court.) They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, but and with like effect in all respects as in cases of appeal under section 268; and they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of a special verdict.
When the case on appeal shall have been heard and decided at the general term, upon the report of the referee and exceptions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the court of appeals. If the judgment be reversed at the general term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal ; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the court of appeals.
§ 273. In all cases of reference the parties as to whom issues are formed in the action (except when the de. fendant is an infant or an absentee) may agree in writing upon a person or persons not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. And if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all par ties in the action shall object, except in actions for divorce. And no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice and not already referred, unless the parties otherwise stipulate. The referee or referees shall make and deliver a report within sixty days from the time the actior. shall be finally submitted; and in default thereof, and before the report is delivered, either party may serve notice upon the opposite party that he elects to end the reference; and thereupon the action shall proceed as though no reference had been ordered, and the referees shall not in such case be entitled to any fees.
$ 274. Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against e others, whenever a several judgment may be oper. The court may also dismiss the complaint with
in favor of one or more defendants, in case of un