$265 tion of the court, or a judge thereof. The judge who tries the cause may, in his discretion, entertain a mo tion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is had. When such motion is heard, and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of

the appeal must be had.

$265. A motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and the judgment in the meantime suspended; and in that case they must be there heard in the first instance, and judgment there given. And when upon a trial the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at the general term, and in that case the application for judgment must be made at the general term. Every judgment rendered upon a verdict taken subject to the opinion of the court at a general term may be reviewed by the court of appeals in the same manner and with the like effect as if exceptions had been duly taken at the proper time; provided it shall appear by the return that questions of aw were involved in the rendition of the judgment.

§ 266. Trial by jury may be waived by the several parties, to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following:

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes.

§ 267. Upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately; and upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly. If upon motion, by either party, to a general or special term of the court, it shall be made to appear that the decision is unreasonably delayed, the court may make an order absolute for a new trial, or may order a new trial unless the decision shall be filed by a time to be specified in the order. The costs of the former trial shall abide the event of the new trial.

$268. For the purposes of an appeal either party may except to a decision on a matter of law arising upon such trial within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury, provided, however, that where the decision filed under section two hundred and sixtyseven does not authorize a final judgment, but direct.

further proceedings before a referee or otherwise, either 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 term, 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, wheth.

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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 mo tion, 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