Motion for new trial at general term, when trial was by court or referee. When motion for new trial to be made at special strictions there upon. order was granted; and either party may notice it for hearing at the general term, upon the exceptions. A substitute for so much of § 265, Code Pro., as provides for the hearing of exceptions at general term, before judgment. The second sentence is new. See Post v. Hathorn, 54 N. Y. (9 Sick.) 147. The last sentence is also new. See Wait's Code, 471, notes; 3 Wait's Pr. 208, 209. Where the complaint is dismissed at the circuit, the court may direct the plaintiff's exception to such disposition of the case to be heard in the first instance at the general term, and that judgment be suspended in the meantime. Brown v. Conger, 8 Hun, 625. See Carpenter v. Beare, 4 id. 509; Walsh v. Mead, 8 id. 387; Post v. Hathorn, 54 N. Y. (9 Sick.) 147. § 1001. Where the decision or report, rendered upon the trial of an issue of fact by the court, without a jury, or by a referee, directs an interlocutory judgment to be entered; and further proceedings must be taken, before the court, or a judge thereof, or a referee, before a final judgment can be entered; a motion for a new trial, upon one or more exceptions, may be made at the general term, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The time within which the party must except, for that purpose, to a ruling of law, made, upon such a trial, by the judge or the referee, after the close of the testimony, is ten days after service of a copy of the decision or report, and notice of the entry of the interlocutory judgment thereupon. Code Pro., § 268, first clause. See Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. (T. & C.) 595, 598; Douglas v. Douglas, 5 Hun, 140; Church v. Kidd, 3 id. 254; S. C., 5 N. Y. Sup. Ct. (T. & C.) 254; Produce Bank v. Morton, 1 Abb. N. C. 174; and see 3 Wait's Pr. 422. § 1002. In a case, not specified in the last three sections, a motion for a new trial must, in the first instance, be heard and decided at the special term. But where it is founded upon an alleterm Regation of error, in a finding of fact, or ruling upon the law, made by the judge upon the trial, it cannot be heard at a special term, held by another judge; unless the judge, who presided at the trial, is dead, or his term of office has expired, or he specially directs the motion to be heard before another judge. And a trial by a referee cannot be reviewed, by a motion for a new trial, founded upon such an allegation, except in a case specified in the last section. See Code Pro., § 265; Wait's Code, 470; 3 Wait's Pr. 421-423. Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial, upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the particular circumstances of each case. Barrett v. Third Avenue R. R. Co., 45 N. Y. (6 Hand) 628. A motion can be made at special term for a new trial, upon the ground that the verdict is against the weight of evidence, or of surprise, of newlydiscovered evidence, of misconduct of the jury, or other ground, after the entry of judgment on the verdict. Tracey v. Altmyer, 46 N. Y. (1 Sick.) 598. tion of cle to specific provi plicable § 1003. The provisions of this article, relating to the proceed- Applicaings to review a trial by a jury, are applicable to the trial, by a jury, this arti of one or more specific questions of fact, arising upon the issues, in trials of an action triable by the court. But, except in a case specified in questions by jury; section 970 of this act, a new trial may be granted, as to some of special the questions so tried, and refused as to the others; and an error, in sions apthe admission or exclusion of evidence, or in any other ruling or thereto. direction of the judge, upon the trial, may, in the discretion of the court which reviews it, be disregarded; if that court is of opinion, that substantial justice does not require that a new trial should be granted. Where the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, taken at the trial, to be heard at the general term, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. New in form. See Anderson v. Rome, Watertown & Ogdensburgh R. R. Co., 54 N. Y. (9 Sick.) 334; Vermilyea v. Palmer, 52 N. Y. (7 Sick.) 471; Bird sall v. Patterson, 51 N. Y. (6 Sick.) 43; for new after trial a of specific by a ref § 1004. In an action triable by the court, where a reference Motion has been made, to report upon one or more specific questions of fact, hearing, involved in the issue, a motion for a new hearing may be made at special term, at any time before the hearing of a motion for final judgment, or the trial of the remaining issues of fact. The motion must be made upon affidavits, unless the court, or a judge thereof, directs a case to be prepared and settled. New. See Macpherson v. Ronner, 8 J. & Sp. 448. eree. Final judgment, stayed, by for a new trial. Motion § 1005. The entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by a exception, the preparation or settlement of a case, or a motion for a new trial, unless an order for such a stay is procured and served; and the entry, collection, or other enforcement of a judgment does may be not prejudice a subsequent motion for a new trial. Where a new terwards. trial is granted, the court may direct and enforce restitution, as where a judgment is reversed upon appeal. Laws of 1832, ch. 128 (4 Edm. St. v. Lynch, 12 Abb. N. S. 224; S. C., 2 529), 1, modified. This statutory J. & Sp. 31; 43 How. 157; Alfaro v. provision was not repealed by Code Davidson, 7 J. & Sp. 408. Pro. See 3 Wait's Pr. 435; Raphaelsky heard af exception § 1006. The taking of an exception, upon a trial by a jury, or When the statement thereof in a case, as prescribed in this article, does not not to prejudice a motion for a new trial, on the ground that the verdict motion was contrary to evidence; but such a motion may be made, before trial. for new Notes of stenographer may be or after the hearing of the exception; or, in the discretion of the court before which the exception is heard, at the time of the hearing. 2 R. S. 440, § 76, amended. § 1007. The notes of an official stenographer or assistant-stenographer, taken at a trial, when written out at length, may be treated, treated as in the discretion of the judge, as the minutes of the judge upon the trial, for the purposes of this article. minutes of the judge. New. If trial by jury waived, action must be tried by TITLE II. Trials without a jury SEC. 1008. If trial by jury waived, action must be tried by the court. 1009. Trial by jury; how waived. 1010. Decision upon trial by the court, when to be filed; consequence of failure. 1011. Reference by consent; when and how made. 1012. Qualification of the last section. 1013. Compulsory reference for the trial of issues; in what cases it may be made. 1014. Proceedings where the reference is for trial of part of the issues. 1015. Compulsory reference upon questions incidentally arising. 1016. Referee to be sworn. 1017. Witnesses may be subpoenaed. 1018. General powers of a referee, upon a trial. 1019. Referee's report; when to be made; consequence of failure. 1020. Double or other increased damages. 1021. Decision of court or report of referee, upon trial of demurrer. 1022. Id.; upon trial of the whole issue of fact. 1023. Parties may require court or referee to determine particular questions. 1024. Qualifications of a referee. 1025. Several referees may be appointed. 1026. Proceedings regulated where there are several referees. § 1008. [Amended, 1877.] In an action triable by a jury, if the parties waive the trial, by a jury, of the issuet of fact, the action must be tried by the court, without a jury; unless a reference is the court. directed, in a case prescribed by law. But such an action, other than to recover damages for breach of a contract, cannot be tried by the court, without a jury, unless the judge, presiding at the term where it is brought on for trial, assents to such a trial. His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section. + Error in engrossing for, "issues." See Code Pro., §§ 253, 254 and 266. The last sentence is new. See Wait's Code, 443, 445, 477; 3 Wait's Pr. 212, et seq.; see, also, Vermilyea v. Palmer, 52 N. Y. (7 Sick.) 471; Colman v. Dixon, 50 N. Y. (5 Sick.) 572; Dietz v. § 1009.* A party may waive his right to the trial of the issue of Trial by fact, by a jury, in any of the following modes: 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attor ney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury; or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial. Code Pro., § 266, amended, by add- constitutional privilege of a trial by jury; how waived. upon trial court, be filed; conse quence of § 1010. Upon a trial, by the court, of an issue of fact or of law, Decision its decision, in writing, must be filed, in the clerk's office, within by the twenty days after the final adjournment of the term, where the issue when to was tried. If it is not so filed, either party may move, at a special term, for a new trial upon that ground. If the decision has not been failure. filed, when the motion is heard, the court must make an order for a new trial, either absolutely, or unless it is filed, within a time specified in the order. If an order for a new trial is made, or a contingent order for a new trial becomes absolute, the costs of the former trial abide the event. From Code Pro., § 267, amended. See Wait's Code, 478; 3 Wait's Pr. 219, 230, 232. After a trial of an equity action by and a submission thereof to the court, it has power while it remains in its hands under advisement, of its own motion, to direct certain issues therein to be passed upon by a jury. And this power is not restricted or affected by the provision requiring the judge to make and file his decision within a The provision, that the judge before ence by when and made. § 1011. Except in a case specified in the next section, the whole Referissue, or any of the issues in an action, either of fact or of of law, consent; must be referred, upon the consent of the parties, manifested by a how written stipulation, signed by their attorneys, and filed with the clerk. Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issues for trial, to that person only. Qualification of the last section. Compulsory reference for the trial of Issues; in what cases it may be made. Proceedings where the reference is for trial of part of the Issues. Code Pro., 270, and part of § 273, extended. See Wait's Code, 484, 488; 3 Wait's Pr. 242, 244, et seq. As to who may be chosen as referee, see post, § 1024. § 1012. But a reference shall not be made, of course, upon the consent of the parties, in an action to annul a marriage, or for a divorce or a separation; or an action against a corporation, to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribution of its property, unless it is brought by the attorney-general; or an action wherein a defendant, to be affected by the result of the trial, is an infant. In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; and, where a reference is granted, the court must designate the referee. See 2 Wait's Pr. 252, 253; Wait's Code, 484, note f. An issue of fact, in an action for a divorce from a marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived or a reference be ordered, by the consent of both parties. Dietz v. Dietz, 2 Hun, 339; S. C., 4 N. Y. Sup. Ct. (T. & C.) 565; 48 How. 114. § 1013. The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decision of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. Code Pro., § 271. See Wait's Code, 485; 3 Wait's Pr. 246, 259, 265. A compulsory reference of an action, as involving a long account, can be ordered only where the accounts to be examined are the immediate object of the suit or the ground of the defence. They must be directly, and not incidentally and collaterally involved. Kain v. Delano, 11 Abb. N. S. 29. And see Evans v. Kalbfleisch, 16 Abb. N. S. 13; Magown v. Sinclair, 5 Daly, 63; Place v. Chesebrough, 63 N. Y. (18 Sick.) 315; affirming S. C., 4 Hun, 577; 3 Wait's Pr. 251. But a compulsory reference may be ordered in an action on contract in which a long account is involved, notwithstanding the defence is that the contract itself is void ab initio for fraud. Kingsley v. City of Brooklyn, 1 Abb. N. C. 108. And see cases cited, id. 109, 110, note; Hyatt v. Roach, 1 Abb. N. C. 125. § 1014. Where a reference is made, as prescribed in the last section, to report upon a specific question of fact, involved in the issue, and the determination of one or more other issues is necessary, in order to enable the court to render judgment, they must be tried, either before or after the filing of the report, as the court directs, and either by a jury, or by the court, without a jury, as the case |