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CHAPTER X.

TRIALS; INCLUDING JURORS AND JURIE..

TITLE 1 – TRIALS GENERALLY; INCLUDINU EICKF

TIONS AND MOTION FOR A NEW TRIAL
TITLE II. – TRIALS WITHOUT A JURY.
TITLE III. - TRIAL JURORS, EXCEPT IN NEW YORK

AND KINGS COUNTIES; MODE OF se-
LECTING THEM, AND OF PROCURING

THEIR ATTENDANCE.
TITLE IV. - TRIAL JURORS IN NEW YORK AND Kings

COUNTIES; MODE OF SELECTING THEM,

AND OF PROCURING THEIR ATTENDANCE
TITLE V. -TRIAL BY JURY.
TITLE VI. - MISCELLANEOUS PROVISIONS; INCLUDING

THOSE RELATING TO EMBRACERY, AND
OTH KR ACTS OF MISCONDUCT.

TITLE I.

Trials generally; including erceptions and motion for a

new trial. ASTILI 1. IASU0s, and the mode of trial thereof.

3. The piace of trial.
3. Exceptions, case, and motion for a new trial.

ARTICLE FIRST.

ISSUES, AND THE MODE OF TRIAL THEREOT

c. 63. Issues defined; different kinds of 18snes.

HA. Whed issues of law arise : when issues of fact arise.
5. Issues to be judicially examined by a trial.
Ws. Order of trial, where issues of law and of lact aviso ta the most

action.
17. Bat court may direct the order, eto., of dropouttion of the

188Qes.
13. What Issues of fact are trlable by a jury.
. What issues are triable by the court

bro. 970. Order for trial by Jury, of specific questions of fact, who a

right. 971. Id., when discretionary. 972. Trial of the remainder of the issues. 174. Counterclaim to be deemed an action, within the foregoing

sections. 978. Immaterial issnes need not be tried. 976. What issues to be tried before one judge; regulation of the

in the supreme court. 977. Notice of trial and note of issue. Calendar to be prepared. 978. Issues how arranged. Order of disposition at a jury torm. 979. Id., when a jury does not attend. 980. Either party may bring issue to trial.

981. What papers to be furnished on trial, and by whom. 8 963. Issues defined; different kinds of issues. The issues, treated of in this chapter, are those only which are presented by the pleadings. An issue arises where a fact, or a conclusion of law, is maintained by one party, and controverted by the other. 18800are of wo kinds :

1. Of law; and 2. Of fact. 00. Proc., 248, am'd.

$ 964. When issues of law arlse when lunes of fact arise. - An issue of law arises only apon a demure rer. An issue of fact arises, in either of the following Cases:

1. Upon a denial, contained in the answer, of a material allegation of the complaint; or upon an allogt tion, contained in the answer, that the defendant har not sufficient knowledgo or information to form a belief, with respect to a material allegation of the com. plaint.

2. Upon a similar donial or allegation, contained in the reply, with rospect to a material allegation of the Answer.

3. Upon a matorial allegation of new matter, con tained in the answer, no requiring & reply; urloka u issue of law is joined thereupon.

4. Upon a material allegation of new mattor, con tained in the reply; unless an issue of law is joined thereupon. Substitute for Co. Proc., & 249 and 250.

8966. (Amended, 1879.] Issues to be judicially er. amined by a trial. An issue, either of law or of fact, must be tried as prescribed in this chapter, (1) unless

it is disposed of as prescribed in chapter sixth of this act.

Substitute for Co. Proc., & 252. Ward v. Davis, 6 low. 274. (1) Ver milyea v. Palmer, 52 N. Y. 471; Third Nat. Bank o. McKinstry / T. C. 52; Dodd y. Curry, 4 How. 123;

Gould o. Carpenter, 7 1d. 98; Roberts d. Morrison, id. 396; Lawrence v. Davis, Id. 354; Hull o. Smith, 8 id. 149: Rochester City Bank v. Rapelje, 12 id. 26; Pratt v. Allen, 19 id. 100% Butchers' Bank v. Jacobson, 22 id. 470; Bell v. Noah, 24 Id. 478; Wither bead v. Allen, 28 Barb. 661; Tilspaugb v. Dick, 8 Uow. 33.

$ 966. (Amended, 1877.] Order of trial, where is. sues of law and of fact arise in the same action. Where an issue of law and an issue of fact arise in one action, the issue of law must be first disposed of, except as otherwise prescribed in the next section.

Substitute for Co. Proc., 251. Masters o. Barnard, 6 How. 114; Palmer v. Smedley, 13 Abb. 185; Fry v. Bennett, 9 id. 15; Warner o. Wigers, 2 Sandf, 635.

$ 967. (Amended, 1877.] But court may direct the order, etc., of disposition of the issues. — A separate trial, between the plaintiff and one or more defendante, of some or all of the issues of fact, or one trial of some or all of the issues of law, or a change in the order of disposition of the issues, may be directed by the court, in its discretion. Such a direction may be given, in an order, made upon notice ; or, except where an applica. tion for such an order has been denied, it may be given, by the judge holding the term, where those issues are regularly upon the calendar for trial, either with or without the entry of an order, New in form; Includes part of Co. Proc., & 251, and part of ( 268. See Warner v. Wigers, 2 Sandf. 635; Fry v. Bennett,'9 Abb. 4.

$ 968. (Amended, 1877.] What issues of fact are triable by a jury. - In each of the following actions, an issue of fact must be tried by a jury, unless a jury trial is waived,(1) or a reference is directed :

1. An action in which the complaint demands judgment for a sum of money only.

2. An action of ejectment; for dower; for waste; for a nuisance; or to recover a chattel.

substitute for Co. Proc., & 253. Lewis v, Varnam, 12 Abb. 305; Fire Department v. Ilarrison, 2 Hilt. 455; 9 Abb. 1; 17 How. 273; 18 1d. 181 ; Foacht v. Stebn, 53 Barb.

650 ; 8. C., 5 Abb. N. 8. 338; N. Y. Ice Co. 1. N. W. Ins. Co., 10 Abb. 35; 8. C., 31 Barb. 72; and 20 How, 424; Grear

0. Kiteltas. 17 N. Y. 496; Dunnell v. Keteltas, 16 Abb. 205 · Rock

well t. Hartford F. Ing. Co., 4 10, 179; Genet o. Howland, 30 How. 360. (1) Parker v. Laney.58 N. Y. 469; Pean. Coal Co. v. Del. Canal Co., 1 Keyes, 72; Mc Keon v. Lee, 4 Rob. 450; Bradley o. Aldrich, 40 N. Y. 504.

$ 969. What issues are triable by the court. - An issue of law, in any action, and an issue of fact, in an action not specified in the last section, or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed.

Co. Proc., portions of 82 253 and 254. McCarty v. Edwards, 24 How. 235; McMahon v. Allen, 10 id. 384; Church v. Freeman, 16 d. 297; WiBy r. Forsyth, id. 448; Draper v. Day, 11 id. 439; Cheeseborough u. House, 5 Duer, 125; O'Brien v. Bowes, 4 Bosw. 658.

$ 970. [Amended, 1892.] Order for trial by jury, of specific questions of fact, when of right.

Where a party is entitled by the constitution, or by express provision of law, to a trial by a jury, of one or more is. sues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply upon notice, to the court for an order, directing all the ques. tions arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application, the court must cause the issues to the trial of which, by a jury the party is entitled, to be distinctly and plainly stated. The subsequent proceediugs are the same, as where questions arising upon the issues, are stated for trial by a jury, in a case where neither party can, as of right, require such a trial; es. cept that the finding of the jury upon such questions so stated, is conclusive in the action unless the verdict is set aside, or a new trial is granted. [In effect March 24, 1892.]

$ 971. [Amended, 1877.] Id.; when discretionary. - In an action, where a party is not entitled, as of right; to a trial by a jury, the court may, in its discretion, upon the application of either party, or without application, direct that one or more questions of fact, arising upon the issues, be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly. See Birdsall v. Patterson, 51 N. Y. 43, 49 and 50.

$ 972. [Amended, 1877.] Trial of the remainder of the issues. - If the questions, directed to be tried by a

jury, as prescribed in the last two sections, do not om. brace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee.

Substitute for part of Co. Proc., f 254. See Birdsall o. Patterson, 81 X. I. 13, 49, and 50.

$ 973. [Repealed, 1877.]

§ 974. [Amended, 1877.] Counterclaim to be deemed an action, within the foregoing sections Where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact, arising thereupon, is the same, as if it arose in an action, brought by the defendant, against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment.

New.

$ 975. Immaterial issues need not be tried. — An is sue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.

New.

$976. [Amended, 1895.] What issues to be tried before one judge; regulation of trial in the supreme court.- Ăn issue of law, or an issue of fact, triable by a jury or by the court, must be tried at a term held by one judge only. In the supreme court, an issue of fact, triable by jury, must be tried at a trial term thereof and an issue of fact, triable by the court, or an issue of law, may be tried at a trial term, or a special term, of the supreme court, as prescribed in the general rules of practice. In effect Jan. 1, 1896; L. 1895, ch. 946.

$ 977. [Amended, 1877 and 1882.] Notice of trial and note of issue. Calendar to be prepared. — At any time after the joinder of issue, and at least fourteen days before the cominencement of the term, either party may serve a notice of trial.(1) The party serving the notice must file with the clerk a note of issue, stating the title of the action; the names of the attorneys; the time when the last pleading was served ; the nature of the issue, whether of fact or of law ;(2) and, if an issue of fact,

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