TITLE 5. TITLE V. Miscellaneous provisions. SECTION 957. Form of certificate to copies, etc. 958. Certificate must be sealed. 959. Qualification of last section. 960. Public or corporate seal may be stamped; but private seal not. certificate 957. Where a transcript, exemplification, or certified copy of a Form of record or other paper, is declared by law to be evidence, and special to copies, provision is not made for the form of the certificate, in the particular etc. case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original. must be sealed. § 958. If the officer, or the court, body, or board, in whose custody Certificate an original paper, specified in the last section, is required to be, by the m laws of the State, or of another State, or of the United States, or of a Territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the State, it must be attested by the seal of the county. tion of last § 959. The last section does not require the seal of a court to be Qualifica affixed to a certified copy of an order, or of a paper filed therein, or section. entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer. gates, search Public or § 960. Where a seal of a public officer, or of a corporation, is author- corporate seal may be ized or required by law, it may be impressed directly on the paper. stamped. § 961. A surrogate, county clerk, register, clerk of a court, or other surroperson, having the custody of the records or other papers in a public clerks, office, within the State, must, upon request, and upon payment of, or etc., to offer to pay, the fees allowed by law, or, if no fees are expressly allowed files, and by law, fees at the rate allowed to a county clerk for a similar service, to certify, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor. etc. clause. § 962. Nothing in title fourth of this chapter prevents the proof of Saving a fact, act, record, proceeding, document, or other paper or writing, according to the rules of the common law, or by any other competent proof. TITLE III.—TRIAL JURORS, EXCEPT IN NEW-YORK AND KINGS COUN- TITLE IV.-TRIAL JURORS IN NEW-YORK AND KINGS COUNTIES; MODE TITLE V.-TRIAL BY JURY. TITLE VI.-MISCELLANEOUS PROVISIONS; INCLUDING THOSE RELATING TO EMBRACERY AND OTHER ACTS OF MISCONDUCT. TITLE I. Trials generally; including exceptions and motion for a new trial. ARTICLE 1. Issues, and the mode of trial thereof. 2. The place of trial. 3. Exceptions, case, and motion for a new trial. ARTICLE FIRST. ISSUES, AND THE MODE OF TRIAL THEREOF. SECTION 963. Issues defined, different kinds of issues. 964. When issues of law arise; when issues of fact arise. 965. Issues to be judicially examined by a trial. 966. Order of trial, where issues of law and of fact arise in the same action 967. But court may direct the order, etc., of disposition of the issues. 968. What issues of fact are triable by a jury. 969. What issues are triable by the court. 970. Order for trial by jury, of specific questions of fact, when of right. 972. Trial of the remainder of the issues. *973. Mode of trial, where complaint demands alternative judgments. 974. Counterclaim to be deemed an action, within the foregoing sections. 976. What issues to be tried before one judge; regulation of trial in the 977. Notice of trial and note of issue. 978. Order of disposition of issues at a jury term. 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. fined; dif § 963. The issues, treated of in this chapter, are those only which Issues de are presented by the pleadings. An issue arises where a fact, or a con- ferent clusion of law, is maintained by one party, and controverted by the other. Issues are of two kinds : 1. Of law; and 2. Of fact. kinds of issues. § 964. An issue of law arises only upon a demurrer. An issue of When 18fact 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 allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer. 3. Upon a material allegation of new matter, contained in the answer, not requiring a reply; unless an issue of law is joined thereupon. 4. Upon a material allegation of new matter, contained in the reply; unless an issue of law is joined thereupon. sues of law arise; when issues of § 965. An issue, either of law or of fact, must be tried as prescribed Issues to be in this chapter, unless it is disposed of as prescribed in chapter sixth Judicially of this act. examined by a trial. § 966. Where an issue of law and an issue of fact arise in one action, issues or the issue of law must be first disposed of, except as otherwise prescribed fact in the in the next section. law and of same action. may direct position of § 967. A separate trial, between the plaintiff and one or more de- But court fendants, of some or all of the issues of fact, or one trial of some or all the order, of the issues of law, or a change in the order of disposition of the issues, etc., of dis may be directed by the court, in its discretion. Such a direction may the issues. be given, in an order, made upon notice; or except where an application 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. sues of fact are triable by a jury. § 968. In each of the following actions, an issue of fact must be tried What is by a jury, unless a jury trial is waived, or a reference is directed: 1. An action in which the complaint demands judgment for a sum of money only. • Stricken out. TITLE 1. What issues are triable by the court. Order for trial by jury, of specific questions of fact, when of right. Id.; when discretion. ary. Trial of the remainder of the is. sues. claim to be within the 2. An action of ejectment; for dower; for waste; for a nuisance; or to recover a chattel. § 969. 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. § 970. Where a party is entitled, by the Constitution, or by express provision of law, to a trial, by a jury, of one or more issues 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 questions, 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 proceedings 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; except that the finding of the jury, upon each question so stated, is conclusive in the action, unless the verdict is set aside, or a new trial is granted. § 971. 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. § 972. If the questions, directed to be tried by a jury, as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court, or by a referee. Counter- § 974. Where the defendant interposes a counterclaim, and theredeemed an upon demands an affirmative judgment against the plaintiff, the mode action, of trial of an issue of fact, arising thereupon, is the same, as if it arose foregoing in an action, brought by the defendant, against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment. sections. Immaterial What is sues to be tried before one judge; regulation of trial in the supreme court. Notice of trial and note of issue. Calendar to be prepared. § 975. An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried. § 976. An 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, except as otherwise prescribed in section two hundred ninety-seven of this act. In the supreme court, an issue of fact, triable by a jury, must be tried in the circuit court; and an issue of fact, triable by the court, or an issue of law, may be tried in the circuit court, or at a special term of the supreme court, as prescribed in the general rules of practice. § 977. At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. 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; and, if an issue of fact, whether it is triable by a jury, or by the court, without a jury. The note of issue must be filed, at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The clerk must prepare the calen dar and have the necessary copies ready for distribution at least five days before the commencement of the term. In the city and county of New York, where a party has served a notice of trial, and filed a note of issue, for a term, at which the cause is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of. ART. 2. § 978. The issues on the calendar must be arranged by the clerk, in Issues how the following order: 1. Issues of fact. 2. Issues of law. Where a jury is in attendance, the issues must be disposed of in the same order; unless, for the convenience of parties, or the dispatch of business, the judge holding the term otherwise directs. arranged. Order of disposition at a jury term. a § 979. Where a jury is not in attendance, issues of law have a pre- Id.; when ference over issues of fact; unless the judge holding the term otherwise not attend. directs. § 980. Either party, who has served the notice, may bring the issue Either to trial; and, in the absence of the adverse party, unless the judge party mae bring issue holding the term, for good cause, otherwise directs, may proceed with to trial. the cause, and take a dismissal of the complaint, or a verdict, decision, or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified. pers to be § 981. Where the issue is brought to trial by the plaintiff, he must What pafurnish the court with copies of the summons and pleadings, and of furnished the offer, if any has been made. Where the issue is brought to trial on trial, by the defendant, and the plaintiff does not furnish those papers, they whom. must be furnished by the defendant. and by ARTICLE SECOND. THE PLACE OF TRIAL. SECTION 982. Certain actions to be tried, where the subject thereof is situated, 983. Other actions, where the cause thereof arose. 984. Other actions, according to the residence of the parties. 985. Place of trial, if proper county not designated. 986. Defendant may demand change; proceedings thereupon. 987. When court may change the place of trial. 988. Effect of changing the place of trial. 989. Effect of order changing place of trial. 990. Issues of law, where triable. 991. This article applicable only to the supreme court. tions to be § 982. Each of the following actions must be tried in the county, in Certain ac which the subject of the action, or some part thereof, is situated: an tried, action of ejectment; for the partition of real property; for dower; to where the foreclose a mortgage upon real property, or upon a chattel real; to com- thereof is pel the determination of a claim to real property; for waste; for a situated. nuisance; or to procure a judgment, directing a conveyance of real subject |