Cornell UNivERsitv Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daug^hter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN5995.B35 Trial practice :or, the rules of prac«^ 3 1924 022 789 188 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022789188 Trial Practice, THE RULES OF PRACTICE APPLICABLE TO THE TRIAL OF CIVIL ACTIONS IN COURTS OF RECORD, UNDBK THK CODE OF CIVIL PROCEDURE, WITH AN APPENDIX OF FORMS. BY E3DA\7-I]sr ]pAYIilES Counselor-at-Law. EOOHBSTBE, N. Y. WILLIAMSON & HIGBIE, LAW PUBLISHERS. 1884. Entered according to act of Congress, in the year one thousand eight hundred and eighty-four, By EDWIN BAYLIES, In the office of the Librarian of Congress. PREFACE. The object and plan of this work is to present in a single volume a statement of the rules of practice governing the various steps in the prosecution or defense of a civil action in a court of record, from the joinder of issue to the entry of final judgment and the decision of a motion for a new trial. This necessarily includes proceedings preparatory to trial, the trial proper, and proceedings between the trial and the entry of judgment. Nothing further than this has been attempted. In carrying out the plan above outlined it has been necessary to carefully examine and compare the corresponding sections of the Code of Procedure and of the Code of Civil Procedure and tne cases decided under each, for the purpose of determining how far the former practice has been retained, modified or abolished, and liowfar the earlier decisions giving construction and application to the Code of Procedure may now be regarded as authoritative. This exam- ination of cases has been greatly facilitated by the use of the care- fully annotated law library of the late William Wait. In many instances the present Code has finally settled disputed points of pi-actice and rendered clearly obsolete many of the earlier reported practice cases. As a rule, these cases have been omitted from this volume. In other instances a change in the phraseology of the statute lias rendered of doubtful authority cases construing the former Code, and in some instances has given rise to recent conflict- ing decisions. In all such cases the conflicting decisions, whether recent or otherwise, will be found cited in the text. No attempt has been made to state the practice as it was, except so far as such statement is necessary to the proper presentation of the practice as it is. In prepai-ing the Appendix of Forms free use has boon made of the blanks in common use, published by Messrs. Williamson & Ilig- iv Preface. bie, of Eocliester, N". Y. It Is but justice to those gentlemen to say, however, that for any errors that may appear in the Appendix the writer is solely responsible, as he has used rather than copied the blanks referred to. It is hoped that the collection of more than three thousand prac- tice cases in a form convenient for ready reference will be found of practical value to the old practitioner familiar with the rules the cases are cited to support ; that the detailed statement of the various steps in the trial of a cause from its commencement to its close will furnish a safe guide to the young practitioner and give him confi- dence to rely upon his own unaided efforts in his contests at the bar ; and that in the absence of any work since the enactment of the present Code treating of the general practice in courts of record, this volume, though covering but a single branch of the prac- tice, will not be unfavorably received by the profession. Should this hope be realized, and should the reception of this work justify other ventures in the same field, it will be followed at an early day by another volume treating of new trials and appeals. Johnstown, October, 1884. EDWIN BAYLIES. TABLE OF CONTENTS. CHAPTER I. Page. The issues in civil actions, and the time, place, and mode of trial thereof. Section 1. Civil actions and the rules of procedure therein 1 Section 2. The issues in a civil action 3 Section 3. Mode of disposing of the issues raised by the pleadings 5 Section 4. Disposition of issues between co-defendants 7 Section 5. When a jury trial is a matter of right 9 Section 6. When a jury trial is in the discretion of the court 13 Section 7. Waiver of the right to a jury trial 13 Section 8. What issues are triable by the court 14 Section 9. Reference of the issues 15 Compulsory reference of the issues 16 What is a long account 19 Reference to take an account or report facts, etc 81 Section 10. Where and at what term the issues are triable 33 CHAPTER II. Preparation for trial. Section 1. Removal of the cause to another court 26 Proceedings where the judges are disqualified 26 Proceedings on removal to change the place of trial 39 Removal for the purpose of consolidation 33 Removal by consent of parties 33 Section 2. Stay of proceedings 83 For non-payment of costs or failure to give security for costs 33 Other actions pending for the same cause 35 Miscellaneous cases 36 Practice on the motion 36 Section 3. Changing place of trial 37 Motion to change the place of trial to the proper county 38 Change of venue from the proper county to secure impartial trial 48 Changing place of trial for convenience of witnesses 44 Proceedings after a change of venue has been ordered 47 Section 4. Consolidation of actions 48 Practice on the motion 49 Costs 50 Section 5. Severing the fiction or procuring a separate trial 51 vi Table of Contents. Chap. II. Preparation for trial — Continued. Page. Proceedings on admitted claim 53 Proceedings to obtain a severance in ejectment 54 Section 6. Tender after suit brouglit 56 Wlien a tender is authorized 57 When and how made. . 57 Effect of the tender 58 Section 7. Offer to liquidate damages 59 Section 8. Offer of j udgment 59 When an offer of judgment is authorized 59 Theoffer 60 Acceptance of the offer 61 Effect of non-acceptance 62 Section 9. Order for the trial of questions of fact by a jury 63 Proceedings to obtain the order 64 Proceedings subsequent to the order 65 Section 10. Proceedings to refer the issues 66 Reference by consent 67 Irregular consen ts 68 Application for a compulsory reference 69 Opposing the motion for a reference 71 Who may be appointed referee 73 Order of reference 73 Appeal 75 Reference of a part of the issues 75 Section 11. Procuring a special jury 76 Application for the order 77 The order 77 Proceedings under the order 77 Foreign j ury 79 Section 13, Compelling the attendance of witnesses 80 The subpoena 80 Service of the subpoena 80 Sdbmi corpus to bring up a person to testify 81 Procuring the attendance of a witness with papers, etc., by subpoena. . . 83 Procuring the attendance of a witness with papers, etc., by order 84 Vacating or modifying the order or subpoena 86 Section 13. Taking the deposition of a party or witness within the State 87 The application for the order 87 When the motion may be denied or vacated if granted 90 Contents of the order 91 Service of the order 92 Who may be examined 93 The examination 94 Depositions taken by consent 95 Section 14. Taking the deposition of a witness without the State 96 Commission to examine witnesses upon interrogatories — in what cases issued 97 The application 99 The order ' 101 The commission. .. , 103 Table of Contents. vii Cliap. II. Preparation for trial — Continued. Page. Settling interrogatories, etc 104 The execution and return of tlie commission 106 Commission to examine wholly or partly upon oral questions 106 Open commission, when issued 107 Open commission, application for 108 Open commission, order for , 108 Open commission, form of, and proceedings thereunder 109 Order directing depositions to be taken 109. Commissiou or order by consent 110 Letters rogatory 112 Correcting defects in the execution of the commission or suppressing depositions 112 Section 15. Procuring documentary evidence 114 Section 16. Procuring an admission that a paper is genuine 116 Section 17. Notice to the adverse party to produce papers, etc 116 Form of the notice 117 Service of the notice , 117 Section 18. Discovery of books and papers , 117 The application for the order 119 Order to show cause and proceedings thereunder 120 Motion to vacate the order 121 Proceedings on the return of the order to show cause 122 Order for discovery or inspection 123 Enforcement of the order 124 Effect of papers produced 125 Section 19. Service of notice in replevin 125 Section 20. Appointment of time and place of hearing by the referee 125 Section 21. Notice of trial or hearing 126 Countermanding the notice 127 Renewing the notice for another term 128 Section 23. Putting the cause on the calendar 128 Preferred causes 129 Proceedings to obtain a preference 133 Deferred causes 133 Section 33. Preparation of copy papers for the court 133 Section 24. Service of an affidavit of merits 134 Section 35. Miscellaneous papers for the Circuit 134 CHAPTER III. Trial of issues of law by the court or by a referee. Section 1. General statutory provisions 136 Section 2. General practice on the trial 137 Section 3. Principles governing the decision of an issue of law 138 Section 4. Decision or report on the trial of an issue of law 141 When to be rendered and filed 141 Directions as to the judgment to be entered 142 Section 5. Proceedings after decision or report 143 Section 6. Costs 145 viii Table of Contents. Chag. III. Trial of issue of law, etc. — Continued. Page. In case of j udgment absolute 145 In case the party in fault amends 145 In case an issue of fact remains undisposed of 146 How collected 146 CHAPTER IV. Trial by jury. Section 1. Proceedings at tlie opening of the court 148 Section 3. Calling and correcting the calendar, and directing the disposition of issues 148 Section 3. Inquests and defaults 150 Inquests, when and how taken 151 Proceedings upon default 152 Section 4. Applications to postpone the trial 153 Grounds for a postponement , 154 Application for a postponement 155 Opposing the motion 156 The decision 157 Proceedings u;«der the order 158 Proceedings where the motion is denied 158 Section 5. Calling and impaneling a j ury 159 Section 6. Qualifications and exemptions of trial jurors 159 Qualifications of jurors in the city and county of New Tork 160 Qualifications of jurors in the county of Kings 160 Disqualification of j urora 161 Exemption from service as jurors 161 Excusing jurors from serving 162 Section 7. Challenges 163 Challenges to the array 163 Challenge for principal cause 164 Challenge to the favor 165 Mode of taking and trying challenges 166 Peremptory challenge 168 Waiver of challenge ' 168 Section 8. Motion to dismiss the complaint for insufficiency 169 Section 9. Opening case to the j ury 170 Section 10. General rules as to the order of introducing evidence 172 Section 11. General outline of practice in presenting evidence to the jury 173 Section 13. The direct examination 175 Section 13. The cross-examination 176 Section 14. The re-di rect examination 180 Section 15. Examination of expert witnesses 182 Section 16. Use of memoranda 184 Section 17. Introduction of documentary evidence 187 Section 18. Impeachment of witnesses 190 Evidence of acts done or statements made out of court 190 Contradictory testimony on a former trial 193 Evidence of Interest, hostility or bias 193 Evidence of bad character 195 Table of Contents. ix Chap. IV. Trial by jury — Continued. Page. Impeaching a party's own witness 197 Counteracting impeaching evidence 198 Section 19. Commitment of perjured witness , 200 Section 30, Objections to tlie admission or rejection of evidence, and excep- tions to ruiings thereon 200 Objections to evidence, when taken 2Q1 Objections, how taken 201 Exceptions 203 Waiver of objections and exceptions 204 Section 21. Motions to strike out or disregard evidence 205 Section 32. Variance and amendments 209 As to parties 209 Inserting an allegation material to the case 211 Variance between pleadings and proof 212 Failure of proof 214 Section 33. Motion to compel either party to elect, etc 216 Section 24. Voluntary nonsuit, or withdrawing a juror, etc 216 Section 35. Motion for nonsuit, dismissal of complaint, etc 317 When no cause of action is proven 218 Where the alleged cause of action has not been proven 230 In actions for negligence 221 When to move 234 Motion, by whom made 225 Motion, how made 226 Exceptions and requests 227 Section 26. Directing a verdict 238 Section 37. Directing a verdict subject to the opinion of the court 833 Section 28. Summing up 233 Section 39. Charging the jury 335 Requests to charge 337 Exceptions to the charge and refusals to charge 339 Section 30. Deliberation of the jury 341 Taking papers to the jury room 241 Communi'cations between the judge and jury 243 Interference with the deliberations of the jury 242 Mode of arriving at the verdict 243 Keeping jury together to induce agreement, etc 244 Assessment of damages 244 Directing a sealed verdict 245 Section 31. The verdict 245 Correcting verdict 346 Polling the j ury 247 Entering the verdict 248 General and special verdicts 248 In replevin 249 In ejectment 250 In action to determine claim to real property 251 Section 32. Motion for a new trial 251 Section 33. Proceedings to perfect the right to costs 252 X Table of Contents. Chap. IV. Trial by jury — Continued. Page. Certificate aa to tlie riglit to costs 353 Motion for an additional allowance 255 Taxing costs 255 CHAPTER V. Trial of issues of fact by the court or by a referee. Section 1. Outlines of practice on trials by the court witbout a jury 257 Section 2. Powers of referees, and general practice on a reference of all tbe issues 261 Oatb of referee 263 Stipulations as to fees 264 Judgment for tbe plaintiif on tbe pleadings .; 264 Nonsuit or dismissal of the complaint 264 Adjournments of tbe trial 265 Defaults and refusals to proceed 265 Amendments 265 Section 8. Objections to tbe admission of evidence and exceptions to rulings on tbe trial 267 Section 4. Bringing in new parties 268 Section 5. Trial of specific questions of factbyajury 270 Motion for new trial, etc 271 Proceedings subsequent to tbe verdict 373 Reference of tbe remaining issues 274 Judgment 375 Section 6. Trial of specific questions of fact by a referee , 275 Motion for a new bearing 376 Disposition of tbe remaining issues , .' 277 Application f or j udgment 277 Section 7. Requests to find facts or conclusions of law 278 Section 8. Decision of tbe court or report of tbe referee 279 Wben no findings are necessary 281 Requisites of tbe decision or report in particular cases 281 Making and filing tbe decision 283 Time of making and filing tbe decision 283 Remedy for failure to file tbe decision 284 Making and filing tbe report of tbe referee 385 Filing or delivery of tbe report 286 Terminating tbe reference for a failure to file or deliver tbe report 288 Construction of tbe report or decision 290 Conclusiveness of tbe findings 391 Section 9. Setting aside tbe report of a referee 292 Practice on tbe application to set aside tbe report 294 Section 10. Exceptions to findings or refusals to find 295 Wben and bow exceptions sbould be taken to tbe report or decision 396 Effect of insufficient exceptions 399 Table or Contents. xi CHAPTER VI. References incidental to the trial of the issues. Page. Section 1. Appointment of the referee, and general practice on the reference. 300 Compulsory reference on motion of the court COO Motion to refer 301 Bringing the matter referred to a hearing 302 Proceedings upon the hearing 303 Filing or delivery of the report 303 Exceptions to the report 303 Motion for a new hearing 304 Costs 304 Section 2. Reference to take and state an account . , 805 Section 3. Reference to ascertain liens . 307 Section 4. References as to title, interest, etc _ 308 Section 5. References to make sales 810 Security on sale by referee 310 Notice of sale 310 Postponement 312 Mode of sale 812 Who may not purchase 314 Report of sale 314 Section 6. Reference to admeasure dower , 815 Oath of referee 315 Proceedings upon the reference 315 Report of referee ... 316 Setting aside or confirming report 316 Fees and expenses 317 Section 7. Reference to make computations, etc 317 Proceedings on the reference 318 Report 319 CHAPTER VII. Practice peculiar to the trial of actions of ejectment, partition, dower and foreclosure. Section 1. Actions to recover real property 320 Actions for non-payment of rent 320 Verdict, report or decision 823 New trial 833 Section 3. Action for partition 334 Actual partition or sale 325 Reference as to liens 837 Interlocutory judgment 328 Proceedings of commissioners appointed to make partition 330 Confirmation of the report of the commissioners 331 Final judgment after partition ... 331 Proceedings where the interlocutory judgment directs a sale 333 Final judgment confirming the sale and proceedings thereunder 333 Section 8. Action for dower 336 xii Table of Contents. Chap. VII. Practice peculiar to the trial of actions of ejectment, etc. — Con'd. Page. Proceedings upon consent to receive a gross sum in satisfaction of dower. 387 Section 4. Action to foreclose a mortgage 341 Notice of pendency of action , 343 Dismissal of the complaint on payment 343 Application for judgment 343 Judgment 344 Stay of proceedings upon the judgment 347 Sale in foreclosure , 348 Filing or recording mortgage and executing conveyance 348 Disposition of the proceeds of the sale 349 Report of sale 35O Confirmation of the report 350 CHAPTER VIII. Costs. Section 1. In general 353 Section 3. Costs to the plaintifE as of course 353 Pre-requisites to plaintifPs right to costs of course 355 By what statute determined 355 In real actions 356 In an action to recover a chattel. 360 in an action where the people are a party 360 In an action for personal wrongs 361 In actions against next of kin, legatees, devisees, etc 361 In action for causing death by negligence 362 In actions where the amount involved exceeds $400 363 In actions against executors, etc 364 In other actions in which a money judgment only is demanded 364 Against two or more defendants 365 Section 3. Costs to the defendant as of course 366 Rule as to two or more defendants 367 Section 4. Costs of course to both parties 368 Section 5. Special provisions affecting the right to costs 369 Costs after discontinuance upon answer of title 370 After tender has been made 373 After defendant's offer to compromise , 373 After offer to liquidate damages conditionally 374 After plaintiff's offer to compromise counter-claim 375 Action to charge defendant not personally summoned 375 When pleadings admit part of plaintiff's claim 375 Against school officer 376 Against a municipal corporation 376 Certificate entitling party to costs or increased costs 377 Certificate exempting party from costs 378 Section 6. Costs in the discretion of the court 379 Exercise of the discretion 381 Rule as to two defendants 383 Table of Contents. xiii Chap. VIII. Costs — Continued. Page. Costs must be expressly awarded 383 Review of tlie discretion exercised 383 Section 7. Against whom awarded and wlio liable to pay 384 In actions by or against executors or administrators 384 In actions by or against a trustee, etc , 386 In case of transfer, etc., of cause of action 388 Person beneficially interested 389 In case of infant parties 390 In action lor partition 391 In action for dower 391 In action to determine claim to real property '. 392 In joint action by creditor against next of kin, legatees, etc 393 In action by plaintiff and sheriff to recover attached property, etc 392 In action by people against corporation or usurper of franchise 392 In action by people on relation of private person 393 In action by people for benefit of a county, etc 393 Costs against the people 393 In actions by or against counties, towns, etc , 394 In case of notice of no personal claim 394 Section 8. Amount of costs and items taxable 394 In general , 394 Proceedings before notice of trial 397 Additional defendants 398 For all proceedings after notice and before trial 398 Taking deposition and drawing interrogatories 399 Trial fee 400 Motion for a new trial 402 Term fee 402 Section 9. Increased costs 404 Costs of several trials 406 Section 10. Additional allowances by statute 407 In general 407 Section 11. Additional allowance by the court 409 In genejal 409 To whom granted 411 In an action for foreclosure 413 In difScult and extraordinary cases ... 413 Basis of computation 414 Amount allowed 417 The application for the allowance 418 Section 13. Disbursements 430 In general 420 Witness' fees 431 Fees of referees and other oflBcers 423 Compensation of commissioners 424 Fees for publication 435 Fees for copies of papers 425 Printing expenses w 425 Prospective charges 435 xiv Table of Contents. Cbap. VIII. Costs — Contiuued. Page. Other expenses . . 426 Section 13. Taxation of costs 437 Notice 427 Powers and duties of clerk and proceedings before him 428 Eetaxation and review of taxation 432 Section 14. Entry of costs in judgment 433 Section 15. Amount of fees 433 Eef erees' fees generally 433 Referees' fees upon sales of real property 434 Fees for oaths and acknowledgments 434 Surveyors' and commissioners' fees, in action for partition or dower, etc. 435 Clerks' fees in civil actions generally 435 Fees of county clerks generally 436 Sheriffs' fees 439 Coroners' fees 445 Stenographers' fees for copies of notes 445 Fees of trial jurors 446 Fees for printers 446 Witnesses' fees generally 446 CHAPTER IX. Judgments. Section 1. Nature of a judgment 448 Section 3. Judgment may be for or against any of the parties 449 Section 3. Extent and nature of the relief granted 451 Where an answer is interposed 452 Rate of damages recoverable 453 Section 4. Authority for the entry of judgment 454 Section 5. Application for judgment — when, where and how made 456 Section 6. Proceedings upon the hearing of the application for judgment . 459 In matrimonial actions 460 Section 7. Proceedings where some of the defendants make default 461 Code provisions as to judgment by default 463 Section 8. Settlement of the judgment 467 Section 9. Form and contents of the judgment 468 In action to determine claims to land 469 In action for waste 470 In other real actions 470 In replevin 471 In action to foreclose a lien upon a chattel 478 In matrimonial actions 473 In actions against corporations 474 In actions against heirs, next of kin, legatees or devisees 475 In an action to establish or impeach a will 476 In a judgment creditor's action 477 Section 10. Judgment-roll and proceedings on the entry of judgment 478 Section 11. Notice of the entry of judgment 483 Table of Cohtents. xv chapter x. Motion for a new trial. Page. Section 1. When and -where a motion for a new trial should he made 485 At the General Term 486 At Special Term 488 Section 3. Upon what papers the motion must he made 490 Section 3. Making, serving and settling a case 493 Form and contents of the case , 493 Amendments to the case 493 Settlement of the case 494 Filing the case 495 Extension of time , etc 496 Section 4. Bringing on the motion on the minutes 496 Section 5. Bringing on the motion at Special Term 497 Section 6. Grounds for granting a new trial 498 After a jury trial in an equity cause 498 Evidence improperly received or rejected 498 Error in charging the jury 501 Excessive damages 503 Insufficient damages 508 Surprise 503 Newly-discovered evidence 507 Misconduct of party, officer, or jury 509 Section 7. Terms imposed on granting the motion 510 CHAPTER XI. Motions and orders. Section 1. Enumerated motions 512 Section 3. Non-enumerated motions 513 Section 3. Notice of motion 518 When notice required and to whom given 518 Length of notice , 514 Form and contents of notice 515 Service of notice 516 Proof of service 517 Countermand of notice 518 Section 4. Order to show cause 518 Section 5. Motion papers 519 Affidavits 519 Deposition to be used on motion 533 Service of motion papers 533 On enumerated motions 533 Section 6. At what court or term a motion may be made 534 In the first judicial district 524 In other districts 534 Section 7. What judges may make orders 536 In general 586 When county j udge has j urisdiction 537 Section 8. Opposing the motion 538 xvi Table of Contents. Chap. XI. Motions and orders — Continued. Page. Section 9. Proceedings on the hearing 529 Default 529 Inability of judge to hear 539 Preliminary objections 529 The argument 530 Section 10. The order 532 General requisites as to form, etc 533 Conditions or terms 533 Entry and filing papers 535 Service 537 Section 11. Renewal of motions 538 Section 13. Reviewing or vacating orders 540 Section 13. Costs 543 Discretionary 543 Must be awarded 544 Amount 544 How collected 545 TABLE OF CODE CITATIONS. Section. Page. 7 80, 173 243 U 17 , 18. 22 . 23 24. 25. 31. 37. 40. 41., 42., 43.. 72., 131. 132 218.. 232.. 233.. 234.. 235.. 236 . 238 . 239.. 240.. 241 . 270. 271. 272 273. 274. • 1, 46 26, 110, 161, 65 .626, . 29, . 30, 275 27, 31, 276, 277. 297. 318,. 319 . 327.. .27, 31, .23, .29, 30, 31, 342 27, 28, 494 23 148 148 24 23 23 23 23 23 23 165 36 80 517 .... 517 .37, 38 .... 23 23 494 24 525 526 528 31 31 29 31 27 32 528 136 48 32 527 452 . 453.. 454.. 456.. 469.. 477.. 484.. 488.. 508. 511., 512., 515. 516.. 521., 522., 527 , 528.. 537.. 538.. 539.. 540 . 541.. 542 . 544.. 556.. 658.. 562.. 568.. 601.. Page. .29, 31 .29, 31 .28, 31 Section. 343 344 345 346 29, 32 354 527, 528 371 87 419 462 420 398, 463 423 394 445 483 .269, 270 370 462 391 144 492 144 497 142, 144 m 169, 218 507 , 216 141 5, 51, 64, 376 .3, 153 6 .6, 399, 401, 458, 515, 544 6 212, 215 213, 215 215 513 613 638 531 381 .613, 527 623 304, 423 624 304, 423 XVIU Table of Code CrrA'noNS. Section. Pago. 627 631 630. 5*2 633 144 635 144 638 513 668 320, 341 669 341 677 392 683 531 721 263, 481 723 6,209,213, 533 724 483, 542 728 519 731 57, 58 733 58 733 58, 372 734 59, 372 735 116, 255, 437 736 59,375, 454 737 59,255, 375 738 60,62,37-', 481 739 60,63,364, 375, 481 740 60, 62 743 58 744 58 745 58, 343 767 448, 532 769 28,40,70,99,524, 525 770 99, 458, 524 771 529 772. .28, 37, 81, 99, 123, 149, 513, 526, 537, 540 773 28, 527 775 28, 36, 121 776 86. 538 777 258, 459 778 459, 538 779 35,146,147,437,544, 545 780.28, 31, 40, 70, 77, 86, 93, 121, 304, 514, 518 782 121, 538 783 297, 496 788 47, 428 789 129 791 131 793 131 793 28,132,133, 149 794 133, 149 795 133, 149 796 93, 616 797 93, 517 798 93,428, 514 799 93,513, 516 800 93, 517 801 93 802 93,514, 517 803 118 804 118 805 119, 121 806 121 807 123, 123, 424, 545 Section. 808 809 817... •.. 818 ... . 819 823 827 Page. .. W5 .. 125 48 32 48 63. 270 .22, 301, 304 193 1T7, 196 842. 843. 844. 845. 846. 847. 848. 849. 860 851. 852. 853.. 856 , 857 . .80, 83, 84, 521 521 523 173 173 173 173 173 173 173 85 81 95 95 95 867. .84, 85, 84, 85, 84, .84, 85, 86 870 87, 871 872 , 87, 88, 873 88, 90, 874. 875. 876 94, 877 88, 90, 91, 879 87, 95, 880 92, 881. 882., 885. .92, 887 98, 99, 100, 890. 891 . .99, 100, .. .102, 894 . .103, 104, 105, 103, 106, 107, 108, .103, 106, 107, 107, 899 107, 109, 900 109, 901 106, 109, 83 93 93 93 93 93 95 94 189 .95, 189 ... 523 96 104 98 101 103 104 106 107 109 108 109 109 no 110 110 110 Table of Code Citations. XIX Section. Page. 902 106, 109, 110 903 106, 109, 110 904 106,109, 110 905 106, 109, 110 906 907 106, 109, 908 107, 111, 909 106, 109, 910 106, 109, US, 911 106, 912 102, 913 921 933 931., 935. .106, 109, 110 110 637 U2 114 109 104 112 284 188 188 936 937. .115, ..115, 188 .1115, 940. 911. 942. 943. 944 945., 946 947.. 948 . 949.. 950 951 . 952.. 953.. 954.. 955.. 95S.. 957.. 961. 965 6, 6, 965 7, 967 7, 51, 150, 968 9, 969 6, 14, 970 9, 64, 66, 258, 270, 971 12,63, 64,258, 270, 972 12, 15, 258, 974. 975. 976. 977. 978 979. 23, 128, 129, 129, .134, 137, 149, 133, 38, 188 188 188 188 188 188 115 115 115 115 U5 115 116 115 115 115 115 115 115 115 115 115 115 115 115 3 136 136 160 153 336 186 272 514 273 150 5 136 137 137 137 153 1.37 336 Section. 983 984 986 986 38, 987 . _ 38. 43. 43. 44. 989 990 41. 136. 991 992 296, 993 292, 296, 994 261, 297, 995. 203, 239, 295, 996 136, 252, £92, 997. ... 998 . . 136,252, 491, 493, 494, 999 1000 1001 1002 262, 271, 485, 271, 252, 486, 260, 292, 302, 483, 487, 488, 252, 292, 1003 1004 271, 272, 485, 486, 489, 276. 292- 489. 1005 1006 1007 :oo3 203, 15, 153, 1009 1010 1011 13, 14, .. .. 141, 269, 283, 284, 285, 610, 16, 67, 73, 136, 1012 1013 1014 ... 16, 67, .16, 18, 21, 71, 150, 257, 258 275, 258, 277, 287, 1015... . 1016.... 1017 22, 301, 304, 305, 423, 263, 274, 276, 302, 262, 1018 1019 1018 137, 262, 142, 260, 286, 288, 1020 1081 . .. r 142, 1032 1023 153,259, 262, 275, 279, 258, 275, 1024 . . . «s 1025 1026 . 9JS KRFL. 1037 1038 1029 1030 1031... 1033 Ifil. 1033 1034, . 1063 . 76, 1064 77. 1065 1066 1067 1068 -. .77 1069 1070 Page. 38 47 48 142 38 299 299 483 495 491 483 488 489 489 498 491 489 490 497 257 153 511 537 136 514 457 531 308 302 266 303 145 281 455 386 278 73 68 495 160 160 161 163 162 162 77 78 78 79 79 78 79 79 XX Table of Code Citations. Section. Page. 1071 79 1079. 160 1080 160 1081 162 1032 162 1085 162 1088 162 1087 163 1088.. 163 1136 161 H37 163 1128 163 1130 163 1163 , 159 1164 159 1166 110,159,161,165, 168 1171 163 1173 162 1173 162 1174 163 1175 163 1176 168 1177 163 1178 163 1179 163 1180 163, 164, 168 1181 244 1182 216 1183 244 1184 245 1185 332, 333 1186 248, 456 1187 248,349, 371 1188 249 1189 248,252,271,456, 479 1800 259, 448 1303 54,455, 456 1304 , 8, 449 1205 51, 450, 463 130t 450 1207 140, 451, 453 1308 453 1312 463 1218 464 1214 464 1315 459, 464 1216 465 1217 *e5 1318 344, 458, 465 1319 466 1230 51, 142, 144 1221 144, 282, 455, 456, 457 1222 144, 455, 459 1323 144,283, 459 1334 456 1325 375, 457 1326 377, 459 1337 260 1228 153, 361, 263, 387, 391, 455 Section. 1329 283 455, 400 1330 1231 144, 153, 260, 261, 153, 261, 433, 304, 319, 460, 457 467 1233 1333. 361, 392, 466 45fi 1234 333, 456 1235 479 1336 468, 479 1237 480 1338 480 1339 480, 481 1240 337, 392 1242 . . 310 333, 348 1343 310 1244 349 1245 481 1246 .481, 483 1247 482 ]348 4R3 1250 .. .. 482 1251 . . 48*1 1352 483 1359 483 1273 4RT 1286 514 1304 KV5 1337 36 1343 5.35 1346 V-ff, 1347 .352, 273, 277, .5.35 1348.. .5.35 1349 .. . ?fiO 1351..39,36, 74, 360, 361,303 1362 ,336,483,535, 538 1360 36 1422 514 1434 311 1496 ?nn 1497 350 IBOl 390 1504 250, R'O 1505 331 1506 331 1507 251, 331 1508 . . 331 1509 321 1510 3'*^ 1611 312 1516 53, 216 1517 . . 52 1518 52, 368 1519 ... .251, 283, 332 1520 .. 351 322 1531 .... 53 1533 53 1533 53 1524 323 1535 333 1536 324 Table of Code Citations. XXI Section. Page. 1527 ,324 1538 32i 1529 324 1531 322, 325, 326, 327, 328 1542 308 1643 8, 308, 325 1544 9, 65, 308 1545 , 369,309,325, 452 1546 859, 326, 328 1547 52,259, 329 1548 329 1549 1550 1551 1552 1553 1554 1555 331, 391, 1556 1557 , 1558. 1559. .259, 329 330 , 329, 330 S30 331 331 425 331 333 1560 259, 326, 339, 1561 135,359,307, 307, 1563 . 1563.. 1564., 1565.. 1566.. 1567.. 1568,. 1669. . 1570. 1571.. 1573 . 1573.. 1576.. 1577., 1579. 1580.. 1581 , 1583., 1583., 1584.. 1585.. 1587.. 329, 334, .313, 391 333 337 308 334 515 334 334 334 334 334 335 835 Section. 1633 1624 1625 Page. .314, 340 340 , 341 1636 344, 348 1637 344 1631 342, 458 1632. 349 1633 345, 350 1634 33, 57, 343 1635 33, 57, 347 1636 345, 348 1637 348 1640 469 1643 251 1643 351, 469 1644 469 1645 392, 470 1648 1655 453, 1656 359, 453, 1657 359, 309, 1658 359, 1663 1667 .281, 6, 340, 344, 333 .313, .314, 314, 333 334 .... 334 334 .... 334 335 335 335 332 336 1607 359, 315, 1608 315, 1609 316, 1610 316, 1611 316, 1613 317, 337, 393, 316, 1613 1617 1618 1619 359, 1620 1621 135, 359, 307, 1622 313, 336 337 425 337 337 338 339 339 340 340 1669 1670 , 1676 1677 1678 311, 312, 1679 1719 , 1725 1736 .135, .125, .350, .10, 1727 1738 214, 250, 283, 360, 1739 1730 1739 1745 1761 1757 1759 1766 1769 1771 1773 1790 1791 1793 1794 , 1795 .380, 473, 473, .473, 1800 1801 1885 354. 378, 1836 254, 378, 384, 1839 393, 1843 1847 259 470 470 470 470 470 453 453 453 343 349 349 313 314 134 134 382 350 471 466 472 472 473 472 65 473 473 474 474 474 474 474 474 474 475 9 475 384 385 475 475 476 XXll Table of Code Citations. SectioD. 1852 1854 1H56 1857 1863 1863 1864 1868 1873 1874 1877 1879 1898 1900 1901 1903 1904 1933 1933 1938 1941 1956 1985 1987 1991.. 1992.. 1993.. 1994. . 1996.. 1998 . 1999 . 2000.. ZOOl. . 2003. 2003,. 2006.. 2008.. 2011 . 2012 . 2013 . 2014.. 2614.. 2615 . 2863.. 2957.. 3228.. 3330 8331. 3333. Page. ... 476 .. 476 ... 473 ... 476 ... 478 ... 477 ... 477 ... 477 ... 477 . . . 478 ... 478 478 453 454 4.54 454 479 451 451 483 375 360 .477, .454, . 361, 362, 364, 354, 356, 361, 362, 364, 365, 380, .252, 366, 367, 379, 253, .146, 477 477 ."!80 370 379 395 383 379 370 381 Section. Page. 3333 146 3334 360,368, 378 3236 253, 370 3336 304,381, 542 3241 393 3£42 393 3243 393 3344 254, 376 3345 253, 376 3246 384, 386, 388 3247 388, 389, 390 3248 253, 255, 369, 378, 431 3249 390 3250 353, 354, 364 3251. ...304, 395,397, 398,399,400, 402, 423, 544 3253 395, 408 3263 395, 409, 413, 414, 417 3254 393, 417 3355 157, 265, 381, 399 3256 353, 420, 431, 433, 434, 425, 426 3257 405 3258 377, 395, 405 3359 405 3262 145, 252, 255, 409, 437, 429, 433 3363 356, 427, 428 3264 256, 428, 432 3265 433 3266 430 3267 255, 431, 430 3272 340 3280 424, 454 3281..- 434, 454 3283 454 3287 445 3288 423 3296 364, 317, 433 3397 434 3398 435 3299 317, 435 3301 436 3304 438 3305 438 3307 443, 444 3308 443 3310 445 3311 446 3313 446 3317 446 3318 81, 85, 446 3333 1 3337 1 334G 57, 70, 94, 96, 110, 522, 535 TABLE OF CASES. A. Page. Abbott V. JolinstOTVii, G. & K. H. R. R. Co. 34 Hun, 135 366, 410 Abbott V. People 86 N. Y. 460 166 Aberle v. Fajen 10 Jones & Sp. 317 503 Abernetby v. Society of tbe Cliuroli of ) „ t-. i •< mo ooo the Puritans...... \ 3 Daly, 1 318,336 Abrahams v. Benson 38 Hun, 605 47 Ackermau v. Delude 29 Hun, 137 45 Ackley v. Tarbox 19 Abb. 119 356 Ackley v. Tarbox 31 N. Y. 564 310, 211 Adams V. Bush 3 Abb. (N. S.) 104 508 Adams v. Greenwich Ins. Co 70 N. Y. 166 195, 198, 199, 226 Adams V. Hopkins 5 Johns. 353 445 Adams V. McPartlin 11 Abb. N. C. 369 347 Adams v. Stern 29 Hun, 280 413 Adams V. Ward 11 Week. Dig. 475 430 Adams V. Ward 60 How. 288 145, 146 Adriance v. Sanders 11 Abb. N. C. 423 123 Adsit V. Wilson 7 How. 64 303 Agricultural Ins. Co. v. Bean 45 How. 444 431, 432, 480, 431, 447 Ahoyke v. Wolcott 4 Abb. 41 123 Aikman V. Harsell 31 Hun, 634 380, 391 Akin V. Albany Northern R. R. Co 14 How. 337 126 Alcott V. McLean 11 Hun, 394 428 Alexander V. Byron 3 Johns. Cas. 318 173 Alfaro V. Davidson 7 Jones & Sp. 463 496 Algeo V. Duncan 39 N. Y. 313 503 Alger V. Conger 17 Hun, 45 387, 388 Alleman v. Dey 49 Barb. 641 358 Allen V. Bodine 6 Barb. 383 ._ 178 Allen V. Calhoun 6 Cow. 33 .' 149 Allen V. Hendree 6 Cow. 400 99 Allen V. James 7 Daly, 13 307, 500 Allen V. Mahon 1 Abb. N. C. 468 421, 431 Allis V. Leonard 58 N. Y. 288 190, 236 Allison V. Scheeper 9 Daly, 365 183, 239 xxiv Table of Oases. Page. Alston V. Jones 17 Barb. 376 501 American Hosiery Co. v. Riley 12 Abb. N. C. 339 543 American Life Ins. Co. v. Van Epps 14 Abb. (N. S.) 353 387 Ames V. Webbers 10 Wend. 576 ; Hid. 186 157 Amsinck v. Nortli 63 How. 115 118, 119, 133 Anderson v. Market Nat. Bk 66 How. 8 504, 507, 508 Anderson V. Morice L. R., 10 C. P. 58 239 Anderson v. Speers 58 How. 68 140 Anderson v. Vandenburgh 1 How. 313 516 Anderson V. West 6 Jones & Sp. 441 103, 298 Andrews v. Monilaws 8 Hun, 65 453 Andrews v. Prince 31 Hun, 333 91 Andrews v. Staffer 13 How. 411 139 Andrews v. Townsbend 16 Jones & Sp. 163 120 Androvette v. Bowne 4 Abb. 440 518 Angell V. Cook 2 N. Y. Sup. Ct. (T. & C.) 175 311 Anonymous 5 Cow. 13 536 Anonym^ous 5 Cow. 433 73 Anonymous 6 C'ow. 389 44 Anonymous 7 Cow. 103 45 Anonymous , 7 Cow. 470 513 Anonymous 1 Wend. 90 311 Anonymous 8 Wend. 425 45 Anonymous 7 Wend. 381 491 Anonymous 1 Hill, 668 45 Anonymous 3 Hill, 457 433 Anonymous 6 Abb. 513 184, 151 Anonymous 17 Abb. 48 196 Anonymous 3 Abb. N. C. 161 461 Anonymous 3 How. 158 817 Anonymous 13 How. 317 417 Anonymous 4 Sandf . 693 438 Anonymous 1 Duer, 596 403 Anonymous 1 Duer, 651 404 Anonymous 59 N. Y. 313 109 Ansonia Brass & Copper Co. v. Pratt 10 Hun, 448 336 Anthony V. Smith 4 Bosw. 503 173, 174 Appleby v. Astor Fire Ins. Co 54 N. Y. 253 231 Argall V. Jacobs 56 How. 167 485, 490 Argall V. Pitts 78 N. Y. 339 466 Armour v. Leslie 9 Jones & Sp. 353 140 Armstrong v. Du Bois 90 N. Y. 95 391 Arnold V. Angell 63 N. Y. 508 220, 453 Arnold t. Clark 9 Daly, 259 34 Arnold V. Oliver 64 How. 452 541 Arnold V. People 75 N. Y. 608 240 Arnoux v. Homans 35 How. 437 291 Ashley V. Marshall 29 N. Y. 494 499 Asinari V. Volkening 3 Abb. N. C. 454 86, 347 Asldns V. Hearns 8 Abb. 185 535 Table of Oases. xxv Page. Astorv. Palache 49 How. 231 57, 60, 61, 413 Atkins V. Lefever 5 Abb. (N. S.) 331 367 Atlantic Dry Dock Co. v. Libby 45 N". Y. 499 415 ^*etf 'r R*"' Co^^^' ^°' ^' ^''"™°'^' I 14 Jones & Sp. 377 583 Attorney, Matter of an 83 N. Y. 164 98 Attorney-Gen. v. Continental Life. Ins. ) n, tt„„ oq onq Co., Matter of \ 64 How. 83 303 Atwater v. Atwater 53 Barb. 631 473 Atwood V. Welton 7 Conn. 71 194 Austin V. Aberne 61 N. Y. 6 310 Austin V. Hinkley 13 How. 576 46 Austin V. Rawdon 44 N. Y. 63 331 Avery V. Foley 4 Hun, 415 379, 380 Aymarv. Chace 13 Barb. 301 ! 458 Ayrault v. Chamberlain 33 Barb. 339 171, 234 Ayrault V. Pacific Bank 47 N. Y. 570 340 Ayres v. Water Commissioners 23 Hun, 297 183 B. Babbitt V. Crampton 1 Civ. Pro. R. 169 118 Babcock V. Clark 23 Hun, 891 537 Backman v. Jenks 55 Barb. 468 328 Bacon v. Comstock 11 How. 197 463 Bagley v. Ostrom 5 Hill, 516 157, 158 Bailey v. Jobnson 1 Daly, 61 215 Bailey v. Park 5 Hun, 41 510 Bailey V. Stone 41 How. 346 363, 428 Bainev City of Rochester 85 N. Y. 533 366,377, 378 Bairdv.Daly 68N.Y.547 179 Baird v. Gillett 47 N. Y. 186 499, 500 Baird V.Poole 13 N. Y. 495 311 Bakeman v. Pooler 15 Wend. 637 56 Bakemau v. Rose 14 Wend. 110 195 Bakeman v. Rose 18 Wend. 146 195 Baker v. Burton „ 67 Barb. 458 394 Baker V. Cook 16 Abb. 83 521 Baker v. Simmons 29 Barb. 198 348, 509 Baker V. Spencer 47 N. Y. 562 114 Baldwin v. New York, etc., Nav. Co ... 4 Daly, 815 4 Ballv. Loomis 29 N. Y. 412 291 Ballou V. Parsons 67 Barb. 19 314, 288, 429 Bander v. Coville 4 Cow. 60 127 Bangs V. Seldon 18 How. 163, 874 40, 45, 525 Bank of Attica v. Metropolitan Nat. B'k. 91 N. Y. 239 182 Bank of Attica V. Wolf 18 How. 402 383 Bank of Commerce v. Michel. , 1 Sandf. 687 101, 102 Bank of Genesee v. Spencer 15 How. 14 540 Bank of Havana v. Magee 30 N. Y. 355 310 Bank of Havana v, Moore 5 Hun, 634 531, 539 D xxvi Table of Cases. Bank of Monroe, Ex parte 7 Hill, 177 619 Bank of St. Albans v. Knickerbacker. ... 6 Wend. 541 46 Bank of Silver Creek v. Browning 16 Abb. 372 92, 96 Bank of TJ. S. v. Strong 9 Wend. 451 50 Bank of Utica v. Ives 17 Wend. 501 f 10 Banks v. Malier 2 Bosw. 690 529 Banta v, Marcellus 2 Barb. 373 543 Bantes v. Brady 8 How. 216 305 Baptist Church v. Brooklyn Fire Ins. Co. 28 N. T. 153 190, 191 Barber V. Cromwell 10 How. 351 71, 72 Barclay v. Brown 7 Paige, 245 468 Barclay v. Culver 66 How. 342 416 Barclay v. Quicksilver Mining Co . . . 6 Lans. 25 141 Barker v. Cook 40 Barb. 254 515 Barker v. Savage 1 Sweeny, 288 340 Barker v. White 3 Keyes, 617 381, 384 Barlow v. Scott 24 N. T. 40 14 Barnard v. Onderdonk 11 Abb. N. C. 349 351 Barnes v. Ferine 13 N. Y. 18 230 Barnes v. Quigley 59 N. Y. 265 215 Barnes v. Stoughton 10 Hun, 14 346 Barnes V. West 16 Hun, 68 11, 17 Barnett, Matter of 52 How. 73 410 IBarney v. Keith 6 Wend. 555 360 Barrett v. Third Ave. R. R. Co 1 Sweeny, 568 229 Barrett v. Third Ave. R. R. Co 45 N. Y. 628 220, 507 Barrick v. Austin 21 Barb. 241 224 Barron v. Sauford 6 Abb. 320, note 531 Bartholomew v. Lyon 67 Barb. 86 334 Bartlett v. Musliner 93 N. Y. 646 133 Barto V. Himrod 8 N. Y. 483 249 Barton v. City of Syracuse 37 Barb. 292 499 Barton v. Speis 73 N. Y. 133 34 Bartow v. Cleveland 16 How. 364 57, 413 Bassett v. Fish 75 N. Y. 303 310 Bassham v. State 38 Texas, 632 179, 181 Batchelor v. Albany City Ins. Co 1 Sweeny, 346 18 21 Bates V. James ' 1 Duer, 668 518 Bathgate v. Haskins 63 N". Y. 231 60, 63, 373, 374 Battershall v. Davis 23 How. 382 3, 543 Batzel V. Batzel 54 How. 139 10 Bauman v. New York Cent. & H. R. R. ) w„ „ „.„ ^ Qg Y 10 How. 218 448 Baxter V. Davis 3 Abb. (N. S.) 249 386 Beach v. Gregory 1 Hill, 201 297 Beach v. Mayor, etc., of N. Y 14 Hun, 79 88, 89, 90, 91 Beach v. Tooker 10 How. 297 504 Beal V. Hayes 5 Sandf. 640 139 Beal V. Union Paper Box Co 1 Civ. Pro. R. 18 514 Beall V. Day 7 Wend. 513 100 Table of Cases. xxvii Page. Bean V. Tonnelle 24 Hun, 353 539 Beard ». Yates 3 Hun, 466 315 Beards v. Wheeler 76 N. Y. 313 60 Beattie v. Niagara Savings Bli: 41 How. 137 487 Beattie v. Qua 15 Barb. 133 433 Beck V. Buggies 6 Abb. N. C. 69 48 Becker V. Boon 61 N. Y. 317 343, 373 Becker v. Hotclikiss 8 How. 68 513 Bedell v. Barnes 39 Hun, 589 386 Bedell v. Commercial Mut. Ins. Co 3 Bosw. 147 238 Bedell v. Powell 13 Barb. 183 173 Beekman v. Reed 5 Cow. 33 128 Belknap V. Mclntyre 3 Abb. 366 143 Belknap V. Sealey , 14N. Y. 143 336, 398 Bell V. Donoboe 15 Jones & Sp. 458 36 Bell V. Judson ; . . . 3 How. 43 543 Bell V. Mayor 11 Hun, 511 19 BeU V. Noah 24 How. 478 6, 401 Bellv. Prewitt 63 111. 363 178 Bell V. Shibley 33 Barb. 610 233 Bell V. Vernooy 18 Hun, 135 67, 69, 74, 533 Bellinger v. New York Cent. R. R. Co. . 33 N. T. 43 183 Belmont v. Erie R'y Co 53 Barb. 637 539, 540, 541, 543 Belmont v. Ponvert 3 Rob. 693 358, 448 Belton V. Baxter 58 N. Y. 411 232 Beimis v. Bronsoa 1 Code R. 27 211 Bemis V. Kyle 5 Abb. (N. S.) 333 197 Bender v. Sberwood 15 How. 358 54 Bendit v. Annesly 37 How. 185 355 Benedict V. Hibbard 5 Hill, 509 46 Benedict v. Johnson 2 Lans. 94 501 Benedict v. Wright 19 Hun, 27 444 Benjamin v. Smith 13 Wend. 404 499 Bennett v. Austin 5 Hun, 536 499 Bennett V. Buchan 76 N. Y. 386 290 Bennett V. Cooper 57 Barb. 643 24 Bennett v. Edwards 37 Hun, 353 530 Bennett v. Judson 21 N. Y. 238 213 Bennett v. McGuire 58 Barb. 625 500 Benson v. Berry 55 Barb. 630 238 Benson v. Le Roy 1 Paige, 133 306 Bentley v. Jones 4 How. 334 448 Berdell V. Berdell 56 N. Y. 519 93 Bergen v. Snedecker 8 Abb. N. C. 50 308 Bernhard v. Kapp 11 Abb. (N. S.) 343 6, 401 Bernhardt v. Lymburner 85 N. Y. 173 346 Berrian v. Sanford 1 Hun, 625 267 Berry v. Equitable Life Ass'n Soc 59 N. Y. 587 383 Berwick v. Halsey 4 Redf. 18 386 Bettisv. Goodwill 33 How, 137 00, 61 xxviii Table of Cases. Page. Betz V. Conner 7 Daly, 550 841 Bevier v. Solioonmaker 29 How. 411 383 Bickett V. Taylor 55 How. 126 219 Bicknell v. Byrnes 23 How. 486 312, 313, 314 Biddlecom v. Newton 13 Hun, 583 233, 233 Bldwell V. Lament 17 How. 359 228 Blerbauer v. N. Y. Cent. & H. R. R. R. Co. 15 Hun, 559 502 Bigelow V. Heaton 2 How. 207 540 Bingham v. Bingliam 1 Civ. Pro. R. 166 29 Binssev. Wood 37 N. Y. 526 286 Birdsall v. Patterson 51 N. Y. 43 13, 66, 272, 274 Birdseye v. Goddard 17 Week. Dig. 238 289, 495 Birmingham Iron Foundry V. Hatfield .. 43 N. Y. 234 44 Bishop V. Edmiston 16 Abb. 466 139 Bishop V. Empire Transp. Co 5 Jones & Sp. 12 , 279, 281, 515 Bissel V. Drake 19 Johns. 66 116 Bissell V. N. Y. Cent. & H. R. R. R. Co. 67 Barb. 385 484 Black V. Camden & Amboy R. R. Co 45 Barb. 40 176 Black V. Foster 38 Barb. 387 203 Black V. O'Brien 23 Hun, .83. 359, 379 Black V. White 5 Jones & Sp. 320 14 Blackley V. Sheldon 7 Johns. 83 246, 247 Blackstone Bank of Boston v. Bogart 9 Jones & Sp. 393 18 Blake v. James 19 How. 371 331 Blake v. Michigan Southern R. R. Co. . . 17 How. 238 51 Blashfieldv. Smith 37 Hun, 114 481 Blasou V. Bruno 21 How. 113 530 Bleecker v. Smith 37 How. 38 44 Bleecker v. Storms 2 How. 161 40, 44 Blewett V. Tregonning 3 Ad. & Ell. 554 181 Blydenberg V. Johnson 9 Abb. (N. S.) 459 489 Boardof Comm'rs of Pilots V. Spofford.. 3Hun, 57 63 Bockes V. Lansing 74 N. Y. 437 266 Bodwell V. Wilcox 2 Gaines, 104 515 Boeklen v. Hardenbergh 60 N. Y. 8 238 Bogardus v. Richtmeyer 3 Abb. 179 355 Bogert V. Bancroft 3 Caiues, 127 516 Boingtou V. Lapham 14 How. 360 516 Bok V. Vincent 12 Abb. 137 197 Bollesv.DufE 55 Barb. 580 543 Bolton V. Corse 15 Jones & Sp. 493 34 Bolton V. McCullough 2 How. 165 71 Bonesteel v. Lynde 8 How. 336 83 Bonnell v. Griswold 39 N. Y . 122 291 Bonnell v. Griswold 68 N. Y. 294 138 Bonner v. McPhail 31 Barb. 106 75, 303 Bonynge v. Waterbury 13 Hun, 584 508, 511 Boorman v. Atlantic & Pacific R. R. Co. . 78 N, Y. 599 93, 123 Boorman v. Pierce 56 How. 351 90 Boos V. World Mut. Life Ins. Co 4 Hun, 133 ; 64 N. Y. 336 353 Table of Oases. xxix Page. Booth V. Boston & Albany E. R. Co 73 N. Y. 38 238 Booth V. Cleveland Rolling Mill Co. ... 11 Hun, 278 201 Booth V. Smith 5 Wend. 107 422 Booth V. Whitby 5 Hill, 446 157 Bortle V. Mellen 14 Abb. 288 297 Boston Mills v. Eull 1 Sweeny, 359 363 Bostwick V. Barlow 14 Hun, 177 252 Bostwick V. Brown 15 Hun, 308 386 Bosworth T. Vanderwalker 53 N. Y. 597 480 Boucicault v. Bouoicault 21 Hun, 431 524 Botts V. Cozine 2 Edw. Ch. 583 35 Bowen V. Nat. B'k of Newport 11 Hun, 226 116, 117 Bowman v. Ely 2 Wend. 250 43 Bowman V. Sheldon 5 Sandf. 657 515,519, 540 Bowne v. Lynde 91 N. Y. 92 346 Boyd V. Lewis 13 Johns. 504 195 Boylen v. McAvoy 29 How. 278 516 Boynton V. Boynton 16 Abb. 87 116, 194 Boynton v. Hoyt 1 Denio, 53 56 Brackett v. Dudley 1 Cow. 209 100 Bracy V. Kibbe 31 Barb. 273 198 Bradbury V. Winterbottom 13 Hun, 536 53, 54 Bradley V. Aldrich 40 N. Y. 504 11, 13, 453 Bradley v. Fay 18 How. 481 405 Bradley v. McLaughlin. 8 Hun, 545 280 Bradner, Matter of 87 N. Y. 171 534 Bradnerv. Howard 75 N. Y. 417 363 Bradner v. Strang 89 N. Y. 299 201 Bradshaw v. Combs 102 111. 428 175 Brady v. Cochran 23 Hun, 274 11 Brady V. Durbrow 2 E. D. Smith, 78 .' 363, 410 Brady V. Smith ... 1 City Ct. R. 175 357 Brainerd v. Hanford 6 Hill, 368 134 Branch v. Levy 12 Jones & Sp. 507 500 Brandon Manuf . Co. v. Bridgman 14 Hun, 122 91 Brantingham v. Fay 1 Johns. Cas. 255 503 Brassell v. New York Cent. & H. R. R. ) oa jq^ y 241 223 E. Co ) Braydon v. Goulman 1 Monr. 115 172 Breese v. Busby 13 How. 485 312 Breidert v. Vincent 1 E. D. Smith, 542 224 Brennan v. Security Life Ins. Co 4 Daly, 296 170, 234 Brevoort v. Brevoort 8 Jones & Sp. 211. , 143 Brevoort v. Warner 8 How, 321 120 Brewer v. Brewer 11 Hun, 147 410, 413 Brewster V. Hatch 10 Abb. N. C. 400 143 Brewster v. Stewart 3 Wend. 441 49 Bridenbecker v. Mason 16 How. 203 60 Bridgeport City Bank v. Empire Stone ) oq b„i.>, 401 229 Dressing Co , ) XXX Table of Cases. Page. Bridgeport Fire & Marine Ins. Co. v. ) 7 gosw. 699 367 Wilson ) BriggST. Allen 4 Hill, 538 369 Briggs V. Boyd 56 N. Y. 289 298 Briggs V. Briggs 3 Johns. 449 40 Briggs V. Gaunt 4 Duer, 664 49, 50 Briggs V. Merrill 58 Barb. 389 233 Briggs V. Waldron 83 N. T. 583 201, 203, 331, 299 Briggs V, Wheeler 16 Hun, 583 191, 203 Bright V. Milwaukee, etc., R. R. Co 1 Abb. N. C. 14 411, 544 Brill V. Lord 14 Johns. 341 156 Brink v. Republic Fire Ins. Co 3 N. Y. Sup. Ct. (T. & C.) 550 20 Brinkley v. Brinkley 50 N. Y. 184 353 -o . , , 13 • 1 1 ( 56 N. Y. 193 ; 2 N. Y. Sup. Ct. (T. Bnnkley V. Bnnkley | & C.) 501 65.270,273, 284 Brisban v. Hoyt 1 Wend. 27 100 Bristed, Estate of 19 Daily Reg., No. 34 105 Brittan V. Peabody 4 Hill, 61 39, 47 Brockway v. Jewett 16 Barb. 590 513 Brokaw v. Bridgman , 6 How. 115 100, 103 Bronner V. Frauenthall 37 N. Y. 166 189 Bronner v. Loomis 17 Hun, 439 535 Bronson V. Tuthill 3 Keyes, 33 499 Brooklyn Bank v. De Grauw 23 Wend. 342 56 Brooklyn Crosstowu B. R. Co. v. Strong. 75 N. Y. 571 177, 194 Brooklyn Life Ins. Co. v. Pierce 7 Hun, 236 120 Brooklyn Oil Works v. Brown 38 How. 451 155, 156, 157 Brooks V. Harison 91 N. T. 83; 10 Hun, 443. ...236, 227 Broome v. Taylor 76 N". Y. 564 141 Brotherton v. People 14 Hun, 486 501 Brotherton V. Wright 15 Wend. 287 371 Brown v. Bradshaw 1 Duer, 199 510 Brown v. Clifford 7 Lans. 46 66, 274 Brown v. Conger 8 Hun, 635 487 Brown v. Cooper 65 How. 136 444 Brown v. Ferguson 3 How. 128 428 Brown v. Jones 46 Barb. 400 185 Brown v. Littlefield 7 Wend. 454 117 Brown v. Marigold 50 How. 248 531 Brown v. Masteu 2 How. 195 40 Brown v. Mayor of N. Y 55 How. 8 224 Brown v. Murdock 12 Abb. N. C. 380 401 Brownv. Richardson 20 N. Y. 472 500 Brown v. Seys 2 How. 276 45, 100 Brown v. Windmuller 4 Jones & Sp. 75 439, 431 Browne v. Anthony 13 How. 301 542 Brownell v. Marsh 32 Wend. 636 40 Erownell v. Nat. Bk. of Gloversville ... 20 Hun, 517 123 Brownell v. Ruckman 85 N. Y. 648 534 Browning v. Marvin 5 Abb. N. C. 285 364 Browning v. Paige 7 How. 487 138, 153 Table of Oases. xxxi Page. Brucev. Burr 67 N. Y. 237 304, 316, 320 Bruce V. Kelly... 7 Jones & Sp. 27 173 Bruce v. Westervelt 3 E. D. Smith, 440 236 Bruniskill v. James 11 N. Y. 294 225 Bryan, Matter of 3 Abb. N. C. 289 89 Bryou v. Durrie 6 Abb. N. C. 135 414 Buchanan v. Chesebrough 5 Duer, 338 150 Bucher v. Carroll 19 Hun, 618 11 Buckhout V. Rail 38 Hun, 484 30 Bucking v. Hauselt 9 Hun, 633 144, 460 Buckingham V. Minor 18 How. 387 399 Buckley v. Buckley 13 Nev. 423 178 Buckley v. Keteltas 4 Sandf. 450 236, 238 Buckliu V. Chapin 52 Barb. 488 69 Buddv. Jackson 26 How 398 61, 374 Budge V. Northam 20 How. 248 43 Budlong V. Van Nostrand 24 Barb. 25 176 Buell V. Gay 13 How. 31 365 Buess V. Koch 10 Hun, 399 139 Buffalo Catholic Institute v. Bitter 87 N. Y. 250 138 Bulkleyv. Keteltas 3 Sandf. 735 158 Bull V. Babbitt 1 How. 184 45 Bull V. Ketchum 3 Denio, 188 369 Bullard V. Pearsall 53 N. Y. 230 197 Bullardv. Sherwood 85 N. Y. 353 466, 467 Bullwinkerv. Eyker 13 Abb. 311 453 Eunce v. Reed 16 Barb. 347 311 Bunn V. Hoyt 3 Johns. 255 345, 507 Bunnell v. Greathead 49 Barb. 106 501 Burden v. Pratt 3 N. Y. Sup. Ct. (T. & C.) 554 180 Burdick v. Hale 13 Abb. N. C. 60 363 Burhans v. Tibbits 7 How. 74 347, 355, 356 Burhans v. Blauchard 1 Denio, 636 405 Burke V. Candee 63 Barb. 553 415,417, 418, 419 Burke v. Wolfe 6 Jones & Sp. 363 189 Burlingame v. Parce 12 Hun, 149 35 Burnet V. Kelly 10 How. 406 356, 359 Burnett v. Phalon 19 How. 530 208 Burnett v. Phalon 31 How. 100 544 Burnett v. Westfall 15 How. 430 61, 62, 436 Burrill v. Watertown Bank & Loan Co. . 51 Barb. 105 113 Burrows v. Erie E'y Co 63 N. Y. 556 223 Bushnellv. Eastman 2 Abb. (N. S.) 411 17 Butchers & Drovers' Bank v. Jacobson. . 22 How. 470 6, 399, 401 Butler V. Boston & Albany R. R. Co 24 Hun, 99 1 387, 388 Butler V. City of Rochester 4 Hun, 321 377 Butler V. Flanders 12 Jones & Sp. 531 114,176, 177 Butler y. Lee 33 How. 251 481 Butler V. Livermore 53 Barb. 570 315 Butler V. Wood 10 How. 223 140 xxxii Table of Cases. Page. Butterworth v O'Brien 39 Barb. 193 189 Butts V. Burnett 6 Abb. (N. S ) 303 540 Byrnes v. City of Cohoes 67 N. Y. 304 ; 5 Hun, 603 382, 233 Byxbie V. Wood.... 24 N. T. 607 221 Caliill V. Hilton 31 Hun, 114 154, 159 Caines v. Brown 3 Caines, 88, note 530 Caldwell v. Cassidy 8 Cow. 271 373 Caldwell v. Leiber 7 Paige, 483 381 Caldwell V. Murpliy 11 N. T. 416 203, 240 Caldwell v. New Jersey Steamboat Co. . . 47 N. Y. 383 173, 238, 344 Calkins v. Isbell 20 N. Y. 147 381 Calkins V. Smith 48 N. Y. 614 450 Callen v. Kearney 2 Cow. 539 531 Calvo V. Davies 73 N. Y. 211 140 Cambridge Valley Nat. Bank v. Lynch. . 76 N. Y. 514 259, 449 Camden, etc. , Transp. Co. v. Belknap. . . 21 Wend. 354 501 Cameron v. Blackman 39 Mich. 108 185 Cameron v. Freeman 18 How. 310 17, 31 Cameron v. New York Ins. Co 1 Caines, 114 49 Camp V. Ingersoll 86 N. X. 433 17, 19, 33 Campan v. Dewey 9 Mich. 881 179 Campbell v. Cothran 56 JST. Y. 379 444, 445 Campbell V. Genet 3 Hill, 290 507 Campbell Printing Press, etc., Co. v. ) ^ ^iv. Pro. R. 864 50 Lyddy ) Canada Steamship Co. v. Sinclair 3 Civ. Pro. R. 284 91 Canaday v. Krum 83 N. Y. 67 178 Candee v. Ogilvie 5 Duer, 658 398, 403 Canfield v. Lindley 4 Cow. 583 46 Canzi v. Conner 4 Abb. N. C. 188 495 Card V. Card 39 N. Y. 317 201 Carl V. Ayres 53 N. Y. 14 219 Carlan v. Day 4 E. D. Smith, 351 240 Carman v. Kelly 5 Hun, 283 189 Carnahan V. Pond 15 Abb. 194 386, 388, 389 Carnal v. People 1 Park. Cr. 273 166, 167, 168 Carnes v. Piatt 6 Rob. 270 338, 501 Games v. Piatt 4 Jones & Sp. 361 220 Carnes v. Piatt 9 Jones & Sp. 485 238 Carpenter v Baere 4 Hun, 509 503 Carpenter v. Continental Ins. Co 31 Hun, 78 44, 45 Carpenter v. Coe 67 Barb. 411 507 Carpenter v. Eastern Transp. Co 71 N. Y. 574 288 Carpenter v. Manhattan Life Ins. Co 18 Week. Dig. 190 400 Carpenter v. Smith 10 Barb. 663 319, 334 Carpenter V. Stilwell 11 N. Y. 61 337 Carpenter V. Ward 30 N. Y. 243 191 Carpenterv. Willet 3 Rob. 700 405, 406 Table of Cases. xxxiii Page. Carr v. Berdell 23 Hun, 130 20 Carr v. Carr 52 N. Y. 351 349 Carr v. Mayor of New York 13 Jones & Sp. 158 308, 337, 339 Carroll v. Delmel 95 N. Y. 353 373, 374, 500 Carroll V. Lufldns 39 Hun, 17 73, 393, 394 Casey v. Dwyre 15 Hun, 153 249 Cashman v. Martin 50 How. 337 56 Case V. Price 9 Abb. Ill 398, 424, 426 Cass V. Higenbotam 37 Hun, 406 56 Cassard v. Hinman 6 Duer, 695 130 Cassinv. Delany 38 N. Y. 178 503 Caspar v. O'Brien 47 How. 80 330 Castanos v. Eitter 3 Duer, 370 501 Castellanos v. Beauville 3 Sandf. 670 367, 368 Castle V. Duryea 33 Barb. 480 386 Castor V. Bavington 3 Watts & Serg. 505 178 Catliu V. Billings 16 N. Y. 622 461 Catlin V. Catlin 2 Hun, 378 803 Catlin V. Gunter 11 N. Y. 368 212, 214 Cayuga County Bank v. Warfield 13 How. 439 541 Central Bk. of Westchester Co. v. Alden, 41 How. 103 126 Central Nat. Bank v. Arthur 2 Sweeny 194 83 Cbadwick t. Brother 4 How. 283 544 Chaine V. Wilson 8 Abb. 78 519 Chamberlain v. Dempsey 23 How. 356 311 Chamberlain v. Dempsey 36 N. Y. 144 258, 319, 343 ■ Chamberlain v. Lindsay 1 Hun, 331 506, 511 Chamberlain v. Pratt 33 N. Y. 47 340 Champion v. Plymouth Cong. See 42 Barb. 441 484 Champlin v. Stodart 64 How. 378 98 Chandler v. Allen SO Hun, 424 268 Chandlery. Trayard 2 Caines, 94 513 Chapin V. Cole 38 How. 481 361 Chapin v. De GrofE 4 Cow. 554 43 Chapin v. Thompson 58 How. 46 66 Chapin V. Thompson 16 Hun, 53 89, 90, 91 Chapin V. Thompson 38 Hun, 13 270, 373 Chapin V. Thompson 80 N. Y. 375 270, 489, 493 Chapin V. Thompson 89 N. Y. 370 489, 493 Chapman v. Brooks 31 N. Y. 75 191 Chapman v. Carolin 3 Bosw. 456 313 Chapman v. Chicago and North West- ) „„ -^^^ ogg 2^ ern R'y Co ) Chapman v. Hall 11 Wend. 41 445 Chapman V. McCormick 86 N. Y. 479 327 Chase v. James 16 Hun, 14 ' 364 Chase v. Miser 67 Barb. 441 438 Cheeney V. Arnold 18 Barb. 434 175, 176 Cheeneyv. New York Cent. &H.R.R.) ig Hun 415 490 R. Co ) ' E xxxiv Table of Cases. Page. Cheesebrough v. Taylor 13 Abb. 337 238 Cheritree v. Koggin 67 Barb. 134 195 Cliilds V. Fox.... 3 Rob. 650 531 CMpman v. Palmer. 9 Hun, 517. 340 Chltteuango Cotton Co. V. Stewart 67 Barb. 423 265 Chubbuckv. Morrison 6 How. 368 525 Cliurcli V. Freeman 16 How. 294 11, 12, 65, 270 Churcbv. Howard 79 N. T. 415 169, 204 Church V. Kidd 3 Hun, 254 356, 379, 381, 488 Churchill V. Carter 15 Huu, 385 104 Christy V. Kiersted 47 How. 467 41 City Bank of Brooklyn v. Dearborn 30 N. T. 344 499 City Bank v. Lumley 28 How. 397 520 City Nat. B"k v. Nat. Park B'k 63 How. 495 132 City of N. Y. V. Price 5 Sandf . 543 238 Claflinv. Baere 28 Hun, 304 171, 234 Claflin V. Jarroslauski 64 Barb. 463 11 Clappv. Graves 2 Hilt. 317 537 Clapp V. Wilson 5 Denio, 288 192, 199 Clark V. Bininger 75 N. T. 344 538 Clark V. Brooks 3 Abb. (N. S.) 153 66 Clark V. Brooks 26 How. 285 2, 64, 95 Clark V. Bruce 12 Hun, 371 183 Clarkv. Clark 11 Abb. N. C. 338 515 Clark V. Campbell 54 How. 166 39 Clark V. Candee 39 Hun, 139 99,101 Clark V. Dewey 5 Johns. 251 352 Clark V. Donaldson 3 Hun, 224 268 Clark V. Donaldson 49 How. 63 493 Clarkv. Frazer 1 How. 98 286 Clark V. Frost 3 Caines, 125 531 Clark V. Mayor, etc., of N. T 24 How. 333 228 Clark V. Staring 4 How. 242 447 Clarkv. TunniclifE 38 N. Y. 58 V 376 Clark V. Van Vranken 20 Barb. 278 167, 168 Clarkv. Vorce , 19 Wend. 233 238 Clarke v. Dutcher 9 Cow. 674 501 Clarksv. Staring 4 How. 243 423 Clayesv. Hooker 4 Hun. 231 212, 214 Clayton v. Yarrington 16 Abb. 373, note 103 Clemence V. City of Auburn 66 N. Y. 334 219 Clements v. Benjamm 13 Johns. 299 180 demons V. Davis 4 Hun, 260 213 Cleveland v. Strong 2 Cow. 448 71 Clifton V. Brown 27 Hun, 331 126, 128 Clinton v. Elmendorf 3 Johns. 143 512 Clinton v. Myers 43 How. 95 129 Clowes V. Dickinson 5 Johns. Ch. 335 346 Clum V. Smith 5 Hill, 560 347 Clussman v. Merkel 3 Bosw. 403 267 Table of Cases. xxxv Page. Clydev. Rogers 24 Htin, 145 ; 87 N. Y. 625. .86, 118, 123 Coates V. Dormell 16 Jones & Sp. 46 266 Coates V. First Nat. B'k of Emporia 91 N. Y. 20 314 Coates V. Goddard 2 Jones & Sp. 118 . . . .410, 415, 420, 439 Cobbv. Cornisli 16 N. Y. 602 233, 233 Coddv. Ratlibone 19 N. Y. 37 204 Coev.Coe 14 Abb. 86 297 Coffin V. Coke 4 Hun, 616 411, 420 Coffin V. Reynolds 37 N. Y. 640 169, 265 Coffingv. Tripp 1 How. 115 310 Cogan V. Ebden 1 Burr. 383 347 CogMau V. Dinsmore 1 Abb. Ct. App. 375 303 Coit V. Beard 33 Barb. 357 328 Cole V. Gourley 79 N. Y. 527 3 Colegrove v. Harlem, etc., R. B. Co 6 Duer, 383 224 Coleman v. Southwick 9 Jobns. 45 503 Coliev. TifEt 47 N. Y. 119 12 Collins V. Bockwood 64 How. 57 202 Collins V. Stephenson 8 Gray, 441 194 Colman v. Dixon 50 N. Y. 572 11, 12, 65, 66 Colt V. People 1 Park. Cr. 611 198 Coltv. Sixth Ave. E. R. Co. 49 N. Y. 671 319 Colton V. Simmons 14 Hun, 75 423, 424 Colviu V. Burnet 2 Hilt. 620 224 Comins v. Supervisors of Jefferson 3 N. Y. Sup. Ct. (T. & C.) 296 417 Commercial B'k of Albany v. Dunham. . . 13 How, 541 , 83, 120 Commercial B'k of Penn. v. Union B'k ) i ^ -m ir ono 1 1 j ofNewYork \ USS.l.ZUi 114 Comm'rs of Charities v. Casiatir 63 How. 113 387 Commissioners of Pilots v. Clark 33 N. Y. 251 236 Commissioners of Pilots v. SpofEord 3 Hun, 52 374, 383, 410 Commonwealth v. Haley 13 Allen (Mass.), 587 186 Commonwealth v. Leyden 113 Mass. 452 179 Conaughty v. Nichols 42 N. Y. 83 221 Conaughty v. Saratoga Co. Bk 92 N. Y. 401 414, 415, 416 Conger v. Conger Cited 23 Hun, 231 461 Conger v. Hudson River E. R. Co 7 Abb. 255 388 Conhocton Stone Road Co. v. Buffalo, ) „ g-„ _ koq -i oo etc. , R. R. Co J ' ' t • • • Conkey V. People 5 Park. Cr. 31 195 Conklin v. Hill 3 How. 6 244 Conley V. Meeker 85 N. Y. 618 196, 237 Connelly v. N. Y. C. & H. R. R. R. Co. . 88 N. Y. 346 333 Connors v. Meir 3 E. D. Smith, 314 4, 153 Conrad v. Williams 6 Hill, 444 190 Consalus v. Brotherson 56 How. 63 425 Considerant v. Brisbane 1 Bos w. 644 , 399 Constantine v. Dunham 9 Wend. 431 45 Continental Nat. Bk. v. Adams , 4 Hun, 666 505 Conway v. HitcHns .....,,..., 9 Barb. 378 70, 540 Cook V. Allen 5 Hun, 561 497 xxxvi Table of (Jases. Page. Cookv. Fineli ., 2 How, 89 44 Cook V. Roacli 31 How. 153 530 Cookv. Staats 18 Barb. 407 519 Cooper V. Bigelow 1 Cow. 156 445 Cooper V. Jolly 30 Hun, 334 269 Cooper V. Jolly 3 Civ. Pro. E. 9 544 Cooper V. Metropolitan Board of Health.. 33 How. 5 405 Cooper V. Newland 17 Abb. 343 318 Cooper V. Weed 3 How. 40 49 Corbett V. De Comeau ... 4 Abb. N. C. 353 89, 90, 100 Corbett V. De Comeau 5 Abb. N. C. 169 89, 91 Corbinv. George 3 Abb. 465 542 Cordellv. N. Y. C. & H. R. R. R. Co.... 75 N. Y. 330 332 Corey v. Livermore 3 How. 170 40 Cornelius V. Barton 13 Week. Dig. 316 389 Corning V. Corning 6 N. Y. 97 196 Cornisb v. Farm Building Fire Ins. Co. . 74 N. Y. 395 183 Comly V. Mayor of N. Y 1 Civ. Pro. E. 306 433 Cornwall V. Mills 13 Jones & Sp. 45 330 Cortland County Mut. Ins. Co. v. Latbrop. 3 How. 146 543 Corwin, Matter of 6 Abb. N. C. 437 447 Costello V. Syracuse, etc., R. R. Co 65 Barb. 93 501 Cottrell V. Conklin 4 Duer, 45 315 Coulter V. American Merchant Union ) gg jf v 585 197 Ex. Co ) Coursen v. Hamlin 3 Duer, 513. , 54 Courteney V. Baker 60 N. Y. 1 485 Courteny v. Balwr 8 Denio, 37 81 Cowen V. Quinu 13 Hun, 344 • 41 Cox V. New York Cent. & H. R. R. R. Co. 63 N. Y. 414 157 Craigv. Fanning 6 How. 336 503, 504 Cram v. Bradford 4 Abb. 193 343 Cramer v. Cramer 3 McArtbur, 197 178 Crandall v. Bryan 15 How. 48 530 Crane V. Koebler 6 Abb. 328, note 50 Crary v. Norwood 5 Abb. 319 394, 399 Craven v. Price 53 Barb. 443 357 Crane V. Crolut 1 How. 191 515 Crawford V. Kelly 10 Bosw. 697 403 Crawford v. Loper 35 N. Y. 449 185 Crawford v. Wilson 4 Barb. 504 239, 537 Creamer v. Jackson , 4 Abb. 413 114 Cregin v. Brooklyn Crosstown R. R. Co. , 19 Hun, 399 401, 406 Cribben v. Sohillinger 30 Hun, 348 530 Crim V. Cronkbite 15 How. 250 863 Crittenden v. Crittenden .< 1 Hill, 359 869 Crocker v. Crocker 1 Sbeld. 374 540 Crockett v. Smith 14 Abb. 63 518 Crofts V. Rockefeller 6 How. 9 367 Cromwell v. Van Rensselaer 3 Cow. 346 45 Table of Cases. xxxvii Page, Crofutv. Brandt 58 K Y. 106 444 Crofut V. Brandt 46 How. 481 428 Crooke V. Corbin 23 Hun, 176 89 Crosby v. Day 81 N. Y 342 18, 183,303, 305 Culver v. Felt 30 How. 443 138 Cumming v. Egerton 9 Bosw. 684 387 Cummings v. Taylor 34 Minn. 429 180 Currie v. Cowles 7 Rob. 3 286 Curtis V. Dutton 4 Sandf . 719 431 Curtis V. Fay 37 Barb. 64 195 Curtis V. Gano 36 N. Y. 426 182, 183, 184 Curtis V. Greene 28 Hun, 394 525, 587 Curtiss V. Marshall 8 Bosw. 22 315 Cutlerv. Wriglit 22 N. Y. 473 138 Cutter V. Pool 54 How. 311 118, 130 Cutlerv. Reilly 5 Rob. 637 389 Cuykendall,Ex parte 6 Cow. 53 347 Cythe V. La Fontain 51 Barb. 186 298, 366 D. Dabney v. Stevens 10 Abb. N C. 39 493 Dainese v. Allen 4 Jones & Sp. 98 299 Dale V. Brooklyn Qty, etc., R. R. Co 1 Hun, 146 ; 60 N. Y. 638 223 Da Lee v. Blackburn 11 Kans. 190 178 Dalrymple v. Williams 63 N. Y. 361 247 Daly V. Byrne 77 N. Y. 183 303 Dambman v. Schulting 6 Hun, 29 411 Dana v. Tucker 4 Johns. 487 244, 510 Dane v. Liverpool, etc., Ins. Co 31 Hun, 359 16, 33, 71, 73 Darbee v. Elwood 3 Hun, 599 508 Darragh v. McKim 2 Hun, 337 43, 44 Dauchy v. Allen 3 How. 310 127 Davis V. Cooper 50 Barb. 376 405 Davis V. Davis 75 N. Y. 221 473 Davis V. Duffie 5 Duer, 688 34 Davis V. Lambertson 56 Barb. 480. . 380, 381 Davis V. Leopold 87 N. Y. 630 278, 279 Davis V. Mayor of New York 14 N. Y. 506 210 Davis V. Morris 36 N. Y. 569 10, 11, 13 Davis V. N. Y. Cent. & H. R. R. R. Co. . 47 N. Y. 400 223 Davis V. Standish 36 Hun, 608 338 Davis V. Walsh 16 Jones & Sp. 515 30 Davison v. Powell 16 How. 467 4 Day V. Roth 18 N. Y. 448 303 Dayton V. Church 7 Abb. N. C. 367 247 Dean v. iEtna Fire Ins. C!o 3 Hun, 358 191 Decker V. Judson 16 N. Y. 439 157 Decker v. Saltsmau 1 Hun, 431 211 Deeringv. Metcalf 74 N. Y. 501 '. 190 xxxviii Table of Cases. Page. De Forest v. Farley 4 Hun, 640 ; 63 N. T. 638 346 Be Graflf V. Carmichael 13 Hun, 129 170,238, 334 De Grafe v. Hoyt 4 N. T. Sup. Ct. (T. & C.) 348, 358 De Graff v. Mackinley 6 Jones & Sp. 303 17 Degraw V. Elmore 50 N. Y. 1 330 DeGrootv.Jay 30 Barb. 488 36 De Groot v. Van Tuzer 30 Wend. 390 336 Deitz V. Farrisli 11 Jones & Sp. 87 .415, 433 Delafield v. Union Ferry Co 10 Bosw. 316 510 Delaney v. Blizzard 7 Hun, 66 479 De Lavalette v. Wendt 11 Hun, 433 503 Delcomyn v. Chamberlain 48 How. 409 418, 421, 424 De Leon v. Ecbeverria 13 Jones & Sp. 340 339 De Leyer v. Micbaelis 5 Abb. 308 504 Demar V. Van Zandt 3 Johns. Cas. 69 100 Demarest v. Wynkoop 2 Johns. Ch. 461 35 Demeyer v. Souzer 6 Wend. 436 218, 219 Demorest v. Torry 9 Abb. (N. S.) 95 444 Dennisou v. Dennison 9 How. 346 543 Depewv. Leal 3 Abb. 181 519 Derhamv. Lee 87 N. Y. 599 450 De Rose v. De Rose Hopk. Ch. 100 382 Deshon V. Packwood 16 Abb. 373, note 103 De Stuckle v. Tehuantepec R'y Co 30 Hun, 34 411 Devendorf v. Wert 43 Barb. 337 503 Devlin V. Mayor of N. Y 7 Daly, 466 434 Devlin V. Mayor 15 Abb. (N. S.) 31 411, 413, 416 Devlin v. Mayor 54 How. 50 18 Devlin v. Shannon 8 Hun, 531 151 Devoe v. Brandt 58 Barb. 493 226 De Weerth v. Feldner 16 Abb. 295 520 Dewey v.Field 18How.487 17,19, 73 Dewey v. Greene 4 Denio, 93 520 Dewey v. Moyer 9 Hun, 473 304 Dewey V. Stewart . ... 6 How. 465 399, 401 Dewitt V. Barley 9 N. Y. 871 183 DeWolf V. Crandall 1 Sweeny, 556 229 Dexter V. Clark 33 How. 389 228 Deyo V. New York Cent. R. R. Co 34 N. Y. 9 319 Dezengreinel V. Dezengremel 34 Hun, 454 311 Dickerson v. Spaulding 7 Hun, 388 514 Dickersou v. Wasson 48 Barb. 413 232 Dickie V. Austin 65 How. 420 119 Dickinson v. Kimball 1 Code R. 88 153 Dickinson V. Mitchell 19 Abb. 286 20 Dickson v. McElwain. . , 7 Hun, 188 544 Dietz V. Dietz 2 Hun, 339 10 Dillaye v. Wilson 43 Barb. 361 216 Dillon V. Cockcroft 90 N. Y. 649 217, 337, 330, 231 Dilleber v. Home Life Ins. Co 87 N. Y. 79 184 Table of Oases. xxxix Page. Dilleberv. Home Life Ins. Co 69 N. T. 356 169, 204 Dimon v. Dimon 3 How. 91 45 Dingee v. Shears 29 Hun, 210 147 Dinkelspiel v. Levy 13 Hun, 130 541 DittenhoefEer v. Lewis 5 Daly, 73 19, 30 Diveny V. City of Elmira 51 N. T. 506 163, 165, 166 Dix V. Palmer 5 How. 333 428 Doaue v. Eddy 16 Wend. 533 219 Doctor V. Smith 16 Hun, 245 347 Doddv. Curry 4 How. 123 400 Dodge V. Crandall 39 N. Y. 294 386 ''ftfamlhifco.''.'^^™!'!^?':! 1 Sweeny. 453 508 Dodge & Stevenson Manuf. Co., Matterof. 77 N. T. 101 165 Dolan V. Mtna. Ins. Co 23 Hun, 396 341, 510 Dolan V. Del. & Hud. Canal Co 71 N. Y. 285 283 Dolan V Merritt 18 Hun, 27 279 Dolan V. Petty 4 Sandf . 673 54 Dole V. Lyon 10 Johns. 447 501 Dolev. New York Cent. &H.R.R.E. Co. 12 Abb. (N. S.) 385 445 Dollfus V. Frosch 5 Hill, 493 539 Dolner V. Lintz 84 N. Y. 669 196 Dolphv. White 8 How. 275 448 Dolz V. Atlantic, etc., Trans. Co 3 Civ. Pro. R. 163 530 Dolz V. Morris 10 Hun, 301 183 Donald v. Mallory 14 Jones & Sp. 58 381 Donnell v. Walsh 6 Bosw. 631 189 Donnelly v. Libby 1 Sweeny, 859 367 Doolittle V. Eddy 7 Barb. 74 358 Doran V. Mullan 78 HI. 342 175 Dorlon v. Lewis 9 How. 1 393 Dorr V. Dansville Gas-light Co 18 Hun, 374 10 Dorrity v. Russell 7 Bosw. 539 179 Doughty V. Hope 3 Denio, 594 337 Douglas V. Douglas 5 Hun, 140 473, 488 Douglass V. Toucey 3 Wend. 353 245 Dougliss V. Atwell .' 3 Civ. Pro. R. 80 425, 437 Dowliug V. Bush 6 How. 410 433, 430, 447 Cowling V. Bucking 52 N. Y. 658 388 Downingv. Marshall 37 N. Y. 380 353, 379, 394 Downs V. Jalowack 66 Barb. 458 219, 231 Downs V. New York Cent. R. R. Co 47 N. Y. 83 176 Dows V. Rush 28 Barb. 157 240 Doyle V. Mulren 1 Sweeny, 517 316, 326 Drake v. Cockroft 4 E. D. Smith, 34 4 Draper v. Hensingsen 16 How. 381 529 Dressel v. City of Kingston 32 How. 526 377 Dresser v. Jennings 3 Abb. 240 416 Drew V. Andrews 8 Hun, 33 243 Drew V. Comstock 17 How. 469. . 404 xl Table of Oases. Page. Drew V. Wood 26 N. H. 363 194 Dreyfus v. Otis 54 How. 405 520 Driggs V. Smitli 4 Jones & 8p. 283 185, 186 Drury v. Russell 27 How. 130 516 Dubois V. Baker 30 N. Y. 355 , 182 Duclie V. Buffalo Grape Sugar Co 11 Abb. N. C. 333 89, 42 Duff V. Lyon 1 E. D. Smith, 536 204 Duncan v. De Witt 7 Hun, 184 413 Dunckel V. Wiles 11 N. Y. 420 241 Dunham v. Jackson 6 Wend. 22 , 56 Dunham v. Mercantile Mut. Ins. Co. . . .6 Abb. N. C. 70 88, 90 Dunham v. Minard 4 Paige, 441 808 Dunham V. Sherman 11 Abb. 152 423, 424 Dunlop V. Patterson 5 Cow. 243 236 Dunnv. Mason 7 Hill, 154 49, 50 Dunn V. Meserole 5 Daly, 434 539 Dunning v. Bank of Auburn 19 Wend. 23 50 Duperey v. Phoenix , . 1 Abb. N. C. 133, note 400 Durant v. Abendroth 69 N. Y. 148 232 Durant v. Abendroth 12 Jones & Sp. 463 337 Durfee V. Eveland 8 Barb. 46 243 Dutton V. Woodman 9 Gush. (Mass.) 355., 181 Dutcherv. Wilgus 3 How. 180 69, 71 E. Eakin v. Brown 1 E. D. Smith, 36 175 Eastburn V. Kirk 2 Johns. Ch. 317 352 Easton v. Pickersgill .' 75 N. Y. 599 539 East River Bank V. Hoyt 22 How. 478 510 Baton V. North 7 Barb. 631 100 Eatonv. Wells 82 N. Y. 576 281, 285 Ebbets V. Martine 19 Hun, 394 370 Bbersole v. Northern Cent. R. R. Co 33 Hun, 114 249 Edmonstone v. Hartshorn 19 N. Y. 9 117 Edson V. Girvau 39 Hun, 422 140, 452 Edwards v. Bounean 1 Sandf. 610 116 Edwards v. Ninth Ave. R. E. Co 22 How. 444 34 Ehle V. Bingham 4 Hill, 595 431, 422, 433 Ehle V. Quackenboss 6 Hill, 537 357 Ehrman v. Rothschild 33 Hun, 373 353 Eldridge v. Strang 7 Jones & Sp. 395 413, 419 Elliott V. Brown , 2 Wend. 497 337 Elliott V. Lewis 16 Hun, 581 75 Ellis V. Jones.. 6 How. 296 40, 515 Ellmacher v. Buckley 16 Serg. & R. 77 178 Ellsworth V. Gooding 8 How. 1 513 Elwell V. Chamberlin 31 N. Y. 611 170, 171, 172, 233, 234 Elwood V. Western Union Tel. Co 45 N. Y. 549 177, 194, 335 Ely V. Holton , 15 N. Y. 595 '....[ 543 Emigrant Industrial Sav. Bk. v. Goldman. 75 N. Y. 137 349 Table of Cases. xli Page. EmmCTick V. Heffeman 19 Week. Dig. 351- 486 Emmons v. Barnes 7 Daly, 418 240 Emmons v. New York & Erie R. R. Co. . 17 How. 490 403 Empire Building, etc., Ass'n V. Stevens. 8 Hun, 51.5 804, 512 Empire City Bank, Matter of 18 N. Y. 199 11 Enders v. Sternbergh 33 How. 464 187 Bnos V. Lach 18 Hun, 139 226 Enos V. Thomas 4 How. 290 69 Eppendorf V. Brooklyn, etc., R. R. Co . . 69 N. Y. 195 223 Epps V. Van Deusen 4 Paige, 64 268 Erben V. Lorillard 19 N. T. 299 307, 500 Erickson v. Smith 2 Abb. Ct. App. 64 184 Erie Ry. Co. v. Ramsey 57 Barb. 449 539, 540 Ernst V. Hudson River R. R. Co 24 How. 97 219 Ervin v. Oregon Ry. & Nav. Co 22 Hun, 566 124 Erwin v. Hamilton 50 How. 32 244 Evans v. Kalbfleiscb 4 Jones & Sp. 450 18, 70 Everingham v. Vanderbilt 12 Hun, 75 416 Everson v. Carpenter '. 17 Wend. 419 191 Everson v. Johnson 22 Hun, 115 213 Evert V. Duden 5 Law Bull. 88 536 Exchange Fire Ins. Co. v. Early 4 Abb. N. C. 78 264, 318, 341 Excelsior Petroleum Co. v. Lacey 3 Hun, 411 295 Fairbanks v. Camp 30 Wend. 600 369 Farmers' Bk. of Washington Co.v.Cowen. 2 Abb. Ct. App. 88 206 Farmers & Citizens' Bk. v. Sherman 33 N. Y. 69 504 Farmers' Loan & Trust Co. v. Dickson Farmers' Loan & Trust Co. v. Kursch . Farmers & Mechanics' Bk. v. Joslyn 37 N. T. 353 65 50 N. Y.673 11 9 Abb. 61 68 5N. Y.558 390 Farmers' Nat. Bk. v. Leland ^n'^^ 1)°''°'^''^ ^' ^''^^ ^°'''' ^^"^ ^ \ 11 '^'"'^- ^'s- ^30 ^^ Farwellv. Importers, etc., Nat. Bk 90 N. Y. 483 10 Fash V. Byrnes 14 Abb. 12 510 Fay V. O'Neill 36 N. Y. 11 237 Feeter v. Harter 7 Cow. 478 71 Feig V. Wray 64 How. 391 386 Fellows V. Barton 66 Barb. 608 219 Fellows V. Muller -6 Jones & Sp. 137 11 Fellows V. Northrup 39 N. Y. 119 291 Pelt V. Tiffany 11 Hun, 62 17 Ferrin V. Myrick 41 N. Y. 315 386 Fetridge v. Wells 4 Abb. 144 381 Field V. Field 77 N. Y. 294 254 Fielden V. Lahens 6 Abb. (N. S.) 341 225, 450 Fielden v. Lahens 14 Abb. 48 495 Filer V. N. Y. Cent. R. R. Co 49 N. Y. 42 183,233 iFilkins v. Baker 6 Lans. 516 186, 205 xlii Table of Cases. Page. Finkv. Allen 4 Jones & Sp. 350 450 FireDept. of N. Y. v. Harrison 2 Hilt. 455 10 Fire Dept. v. Thompson 16 Hun, 474 233 First Baptist Churcli v. Brooklyn Fire ) og jJqw 448 198 237 Ins, Co ) ' First Nat. Bk. v. Dana 79 N. T. 108 230 First Nat. Bk. v. Hamilton 50 How. 116 539 First Nat. Bk. v. Tamajo 77 N. Y. 476 264, 433, 434 First Nat. Bk. of Plattsburgli v. Heaton. 6 N. Y. Sup. Ct. (T. & C.) 37 507 Fisli V. Coster 28 Hun, 64 410 Fishery. English 4 Law Bull. 37 409 Fisher V. Gould 9 Daly, 141 144 Fisher v. Hepburn 48 N. Y. 41 541 Fisher v. Hunter 15 How. 156 403 Fisk V. Albany & Susquehanna R. E. Co. 8 Abb. (N. S.) 310 48, 270 Fitch V. Rathbun 61 N. Y. 579 214 Fitzgerald v. Quann 62 How. 331 496 Fitzhugh V. Truax 1 Hill, 644 40 Fitzpatrick v. Dorland 37 Hun, 291 366 Flackv. State 27 Hun, 286; 95 N. Y. 461 445 Flanders v. Odell 2 Hun, 664. 20 Fleischmann v. Stern 90 N. Y. 110 3, 4 Fleming v, Hollenback 7 Barb. 271 508 Floodv Moore 3 Abb. N. C. 91 424 Florence V. Bates 2 Code R. 110 530 Floyd V. Bovard 6 Watts & Serg. 75 178 Flynn v. Equitable Life Ass. Soc 18 Hun, 212 395, 406, 410 Foden v. Sharp ' 4 Johns. 183 513 Fogg V. Fisk 30 Hun, 61 89 Folger V. Fitzhugh 41 N. Y. 228 489 Foley V. Rathbone 13 Hun, 589 34 Foot V. Croswell 1 Cai. 498 76 Foot V. Sabin 19 Johns. 154 219 Foote V. Beecher 78 N. Y. 155 268, 498, 499 Forbes v. Locke 8 How. 218 404 Ford V. Ford 35 How. 321 211 Ford V. Monroe 6 How. 204 423 Fordv.Niles 1 Hill, 300 , 172 Ford V. Williams , 24 N. Y. 359 104 Forrest v. Forrest 25 N. Y. 501 498 Forrest v. Forrest 6 Duer; 103 181, 305, ,500 Forrest v. Forrest 3 Bosw. 661 100 Forrest v. Kissam 7 Hill, 463 180, 208 Foster v. Bryan 16 Abb. 396 288, 290 Foster v. Bullock 12 Hun, 200 ' 95 Foster v. Newbrough 66 Barb. 645 I73 Foster v. Romer 15 Week. Dig. 487 359 Fountain v. Pettee , 38 N. Y. 184 803 Fourth Nat. Bank v. Boynton 29 Hun, 441 89, 91 Fowler v. Hurber 7 Rob. 53 51,i5_ 539 Table of Cases. xliii Page. Fowler v. Kelly 11 Jones & Sp. 380 507 Fowler V. Martin 1 N. Y. Sup. Ct. (T. & C.) 377 .. 213 Fox V. Erie Preserving Company 93 N. T. 54 370, 371 Fox V. Fox 24 How. 385 414, 540 Foxv.Fox 5Hun,53 386 Fox V. Gould 5 How. 278... 413 Fox V. Moyer 54 N. T. 135 303 Fox V. Smith 3 Cow. 33 245, 347 Frank v. Manny 2 Daly, 92 117 Franklin v. United States Ins Co 3 Johns. Cas. 385 100 Frecking v. Holland 53 N. Y. 133 330 Freeborn v. Wagner 49 Barb. 43 333 Freeland v. Howell Anth. N. P. 272 154 Freeman v. Frank 10 Abb. 370 138 Freeman v. King 3 How. 10 46 Freeman v. Lawrence 11 Jones & Sp. 388. 183 Freeman v. People 4 Denio, 9 164, 166, 167, 168 Freiberg v. Branigan 3 Abb. ST. G. 131 93 French v. Powers 80 N. T. 146 *. 3 Freund v. Importers & Traders' Nat. Bk. 3 Hun, 689 , 319 FreundT. Paten 10 Abb. N. C. 311 340 Fridenberg v. Jaroslauski 64 Barb. 463 171 Friery v. People 3 Keyes, 434 168 Frost V. McCarger 29 Barb. 617 199 Fry V. Bennett 28 N. T. 324 ; 3 Bosw. 200. .234, 235, 502 Fry V. Bennett 5 Sandf. 54 4 Fry V. Bennett 16 How. 402 483 Fuller V. Reed 6 Duer, 697 35 Fulton Bank v. Benedict 1 Hall, 480 196 Fullerton V. Gaylord 7 Eob. 551 540 Furstv. SecondAve. R. E. Co 72 N. Y. 543 207 G. Gafney v. People 50 N. Y. 416 192 Gale V. New York Cent. &H. R. R. R. Co. 76 N. Y. 594 177, 194 Gale V. New York Cent. &H.R.R.R. Co. 13 Hun, 1 243, 502 Gale V. Vernon 4 Sandf. 709 533, 534 Gallagher V. Egan 3 Sandf . 743 ..379, 426 Gallation V. Smith 48 How. 477 389 Gallaudet V. Steinmetz 13 Jones & Sp. 289 158 Gallt V. Finch 34 How. 193 74, 137, 535, 536 Gallupv.BeU 30 Hun, 173 406 Gallup V. Miller 35Hun,298 313 Gamble V. Taylor 43 How. 375 158 Gandolfo V. Appleton 40 N. Y. 533 191 Garcie y. Sheldon 3 Barb. 233 531 Gardiner V. Luke 13 Wend. 369 307 Gardner v. Bartholomew 40 Barb. 325 199 Gardner v. Clark 17 Barb. 538 501 Garfield v. Kirk 65 Barb. 464 179 xliv Table of Cases. Page. Garling V. Ladd 37 Hun, 112 356, 394 Garner v. Harmony Mills 13 Jones & Sp. 148 449 Garner V. Harmony Mills 6 Abb. N. C. 313 139, 143 Garner v. Mangan 14 Jones & Sp. 365 485, 497 Garner V. Thorn 56 How. 453 ..139 Garrv. Bright 1 Barb. Ch. 157 364, 380, 381 „ , „ , ) 8 N. Y. Sup. Ct. (T. & C.) 404 ; 60 Gates V. Beecner y jj y g-iS ^ ' j-jg Gates v. Canfield 38 Hun, 13 373 Gautier v. Douglas Manuf. Co 53 How. 335 507 Gawtbrop V. Leary 9 Daly, 353 506 Gawtry v. Doane 51 N. T. 84 307, 308 GeibT. Topping 83 N. Y. 46 287, 389 Genetv. Davenport 58 N. Y. 607 389 Genet V. Mitcbell 4 Jobns. 186 76 George V. Grant 56 How. 344 7 Geraud v. Stagg 4 E. D. Smith, 37 544 Germain V. Brooklyn Liie Ins. Co 30 Hun, 535 173 German Savings Bank V. Sharer 35 Hun, 409 410 Germond v. Germond 1 Paige, 83 383 Gibbsv. Huyler 9 Jones & Sp. 190 197 Gibertonv. Fleischel 5 Duer, 653 153 Gifiord V. Town of Gravesend 8 Abb. N. C. 346 41 Gilbertv. Rounds... ., 14 How. 461 4 Gilbert v. Sage 5 Lans. 287 181 Gilbertv. Sheldon , 13 Barb. 633 195 GUdersleeve v. Landon 73 N. Y. 609 177,194, 325 Giles V. Halbert 5 How. 319 389 Giles V. Halbert 12 N. Y. 32 389 Gilliland v. Campbell 18 How. 177 363 Gillott v. Jackson 9 Jones & Sp. 308 343, 570 Ginet v. Murphy 18 How. 411 53 Glackinv. Zeller 53 Barb. 147 363 Gleason v. Pease 11 Hun, 232 379 Gleudening V. Canary 5 Daly, 489 217, 505 Glenney v. Stedwell 64 N. Y. 120 3 Godfrey V. Moser 66 N. Y. 250 353,299 Godfrey v. Williamsb'h City Fire Ins. Co. 13 Abb. (N. S. ) 350 73 Goelet V. Boss 15 Abb. 351 229 Goldman v. Abrahams 9 Daly, 333 340 Gonzales V. New York & Harlem R.R. Co. 50 How. 136 223, 324 Goodrich v. Vanderbilt 7 How. 467 46, 47 Goodwin v. Appleton 33 Me. (9 Shep.) 453 346 Goodyear v. Baird 11 How. 877 153, 153, 436 Goodyear v. Brooks 4 Rob. 683 .18, 31, 69 Goodyear v. Brooks 3 Abb. (N. S.) 396 17 Goodyear V. Ogden 4 Hill, 104 ^ 510 Goodyear v. Vosburgh 41 How. 431 104, 111, 113 Gorham V. Gale 7 Cow. 739 ^ 117 Gori V. Smith 6 Rob. 563 418, 419 Table of Oases. xlv Page. Gormerly V. MoGlynn . 84 N. Y. 384 3, 378 Gould V. Bennett 59 N. Y. 134 34 Gould V. Carpenter 7 How. 97 6 Gould V. Chapin 4 How. 185 430 Gould V. Conway 59 Barb. 355 189 Gould V. Moore 8 Jones & Sp. 387 235, 507 Graham V. Chrystal 1 Abb. (N. S.) 131 398 Graham V. Chrystal 3 Keyes, 31 196 Graham v. Dunnigan 6 Duer, 629 141 ' Graham V. Golding 7 How. 360 31 Graham v. O'Hern 34 Hun, 331 14 Grant V. Morse 33 N. Y. 333 290 Qrattan v. Metropolitan Life Ins. Co 93 N. Y. 274 181 Graves v. Cameron 9 Daly, 153 311 Graves v. Waite 59 N. Y. 156 221 Gray V. Fisk 1 Jones & Sp. 464 ; 53 N. Y. 630.... 393 Gray v. Fist 53 N. Y. 630 395 Gray v. Hannah 3 Abb. (N. S.) 183 355 Gray v. Eobjohn 1 Bosw. 618 408 Grayson V. Keteltas 17 JST. Y. 491 14 Great Western Turnpike Co. v. Loomis. . 83 N. Y. 137 175, 177, 178 Greaton v. Smith 1 Daly, 586 195 Green v.Bliss 13 How. 438 245, 247, 348 Green v. Disbrow 56 N. Y. 334 498 Green V. Hudson Eiver E. E. Co 33 Barb. 25 500, 501 Green V. Milbank 3 Abb. N. C. 138 369 Greenv.Storm 3 Sandf. Ch. 305 383 Green v. Telfair 11 How. 360 344 Green v. Village of Canandaigua 30 Hun, 306 382 Greene V. White 87 N. Y. 405 501 Green v. Willis 1 Wend. 78 151 Greenfield V. People 74 N. Y. 377 164,166, 168 Greenwood v. Marvin 39 Hun, 99 393 Greer v. Allen 15 Hun, 433 89, 90 Gregg V. Howe 5 Jones & Sp. 420 . . . .154, 155, 156, 158 Gregory V. Cryder 10 Abb. (N. S.) 389 288, 289, 290 GreviUe V. Chapman 5 Ad. & EU. (N. S.) 731 181 Griffin v. Brown 53 Barb. 438 363 Griffin V. Griffin 47 N. Y. 134 352, 380, 381 Griffin v. Bound Lake Camp Meeting ) gg -rr oia 34 Ass'n j ' Grimm V. Hamel 3 Hilt. 434 116, 193, 304 Grissler v. Stuyvesant 67 Barb. 81 415 Groat v.Gile 51 N. Y. 431 240 Grocers' Bank v. O'Eorke 6 Hun, 18 11 Grocers' Bank V. Penfield 7 Hun, 279 399 Groesbeck v. Dunscomb 41 How. 303 138 Guardian Savings Bk., Matter of 9 Hun, 267 303 Guckenheimer v. Angevlne 16 Hun, 453 433 Guion v. Knapp 6 Paige, 85 846 xlvi Table of Cases. Page. Guitennan v. Liverpool, etc. , Steams. Co. 83 N. Y. 358 183 Gulerette v. McKinley 27 Hun, 320 193, 195, 198 Gurnee v. Hoxie 29 Barb. 547 137, 153 Gurneyv. Sharp 17 Abb. 410 497 Gurney V. Smithson 7 Bosw. 396 239 Gustaf V. American SteamsMp Co 31 Hun, 95 93, 94 Guyv.Mead 22 N. Y. 462 185 Guy V. Seibold 3 Civ. Pro. R. 169 403 H. Haack v. Fearing 5 Rob. 528 186 Haff V. Spicer 3 Caines, 190 520 Hagaman v. Burr 9 Jones & Sp. 423 230, 231 Hager v. Danfortb 30 Barb. 16 81 Eager v. Hager 38 Barb. 93 243, 509, 510 Haggart v. Morgan 5 N. Y. 422 203, 240 Haines v. Davis 6 How. 118 153 Haines v. HoUister 64 N. Y. 1 141 Hale V. OmabaNat. Blc 49 N. Y. 626 139, 140, 453 Hale V. Rogers 23 Hun,19 89 Hall V. Bartlett 9 Barb. 297 138 Hall V. Barton 25 Barb. 274 104 Hall V. DwineU 10 Wend. 638 157 Hall V. Earnest 36 Barb. 585 205, 208 Hall V. Emmons 3 Sweeny, 396 537, 539 Hallv. Gould 18N. Y. 127 213 Hall V. Holt 35 Hun, 277 53, 58 Hall V. Linds 8 Abb. 341 367, 399 Hall V. Partridge 10 How. 188 807 Hallgarten v. Eckert 1 Hun, 117 541 Halpin v. TMrd Ave. E. E. Co 8 Jones & Sp. 175 323 Halsey v. Carter 6 Rob. 535 389, 290 Halsey v. Sinsebaugb 15 N. Y. 485 185 Halsted v. Halsted 55 N. Y. 442 308 Ham V. Van Orden 84 N. Y. 257 303 Hamilton v. Butler 4 Eob. 654 401, 403 Hamilton v. Butler 30 How. 36 434 Hamilton v. Eno 81 N. Y. 116 337 Hamilton v. Morris 7 Paige, 39 309 Hamilton v. New York Cent. R. E. Co. . 50 N. Y. 100 206 Hamilton v. Third Ave. R. R. Co 3 Jones & Sp. 118 318, 399 Hammond v. Baker 8 Sandf . 704 36 Hammond v. Hopping 13 Wend. 505 116 Hammond v. Slocum 50 How. 415 380 Hancock v. Hancock 33 N. Y. 568 469 Hand V. Burrows 33 Hun, 330 99 Hand V. Kennedy 88 N. Y. 149 . 9 Hanel v. Baare 9 Bosw. 683 435, 436 Hanna v. Dexter 15 Abb. 135 403, 437 Hannah v. McKillup 49 Barb. 342 195, 199 Table of Oases. xlvii Page. Hanover Nat. Bank v. Linneworth 7 Hun, 234 408 Harbison v. Van Valkenburgh 5 Hun, 454 13ft Harden v. Corbett 6 Hun, 523 17 Hardin v. Kretzinger 17 Johns. 393 116 Harding v. Barney 7 Bosw. 353 503 Harding v. Harding 11 Jones & Sp. 27 74 Hardy V. Norton 66 Barb. 527 179,241 Hardy v. Peters 80 Hun, 79 91 Harnett v. Garvey 66 N. Y. 641 183, 184 Harper V. Allyn 8 Abb. (N. S.) 186 513 Harper V. Chamberlain 14 Abb. 408 367 Harrington v. Robertson 71 N. Y. 380 879 Harrington v. Bigelow 2 Denio, 109 507 Harris v. Brown 98 N. Y. 890 539 Harris v. Clark 2 How. 82 45 Harris v. Hammond 18 How. 133 448 Harrisv. Mead 16 Abb. 257 20 Harris v. Todd 16 Hun, 348 321 Harris v. Waite 54 How. 113 323 Harrisburgh Bank v. Forster 8 Watts, 304 165 Harrison v. Rowan 3 Wash. C. C. 580 178 Harrison v. Wood 2 Duer, 50 228 Harrold v. New York, etc., R. R. Co. . . . 31 Hun, 368 90, 503 narrower T. Betts 3 Cow. 496 47 Hart V. Butterfield 8 Hill, 455 541 Hart V. City of Brooklyn 36 Barb. 226 377 Hart V. Hudson 6 Duer, 294 213 Hart V. Hudson River Bridge Co 80 N. Y. 622 223 Hartman v. Spencer 5 How. 185 44 Hajrtness V. Boyd 5 Wend. 563 151, 178 Hartshorn v. Gelston 3 Caines, 84 76 Harvey v. Rickett 15 Johns. 87 243 Hastings v. Palmer 30 Wend. 225 172 Hatch V. Fogerty 7 Rob. 488 397, 298, 399 Hatch V. Peugnet 64 Barb. 189 66, 373 Hatfield v. Macy 53 How 198 504, 507, 508 Hathaway V. Helmer , 35 Barb. 29 165 Hathaway V. Russell 13 Jones & Sp. 538 805, 806 Hathaway v. Scott 11 Paige, 173 520 Hauckv. Craighead 4 Hun, 561 313, 313 Hauptv. Pohlmann 16 Abb. 301 285 Hauselt V. Vilmar 76 N. Y. 630 383 Hauseman v. Sterling 61 Barb. 347 120 Havemeyer v. Havemeyer 11 Jones & Sp. 506 500 Hawkins v. Avery 32 Barb. 551 69 Hawley v. Davis 5 Hun, 642 61, ,400 Hay V. Douglass 3 Sweeny, 49 500 Hayden v. Florence Sewing Machine Co. 17 Hun, 231 508 Haye v. Robertson 6 Jones & Sp. 59 367, 439 Haynes v. Ledyard 33 Mich. 819 178 xlviii Table of Cases. Page. Haynes v. Mosber 15 How. 216 421, 431 Hays V. Miller , 70 N. Y. 113.... ,...223, 290 Hays V. Riddle 1 Sandf. 248 116 Hazlewood v. Hemingway 3 N. Y. Sup. a. (T. & C.) 787 105 Head v. Head 1 Turner & Euss. 138 498 Hazzard v. Wilson 3 Abb. N. C. 50 35 Heath V. Barmour 53 Barb. 444 371 Hebbard V. Ilaughiau 70 N. Y. 54 95 Hecker v. De Groot 15 How. 314 139 Heelasv. Slevin 63 Barb. 356 56 Hegeman v. Cantrell 8 Jones & Sp. 381 66, 246, 272, 274 Hegeman v. Cantrell 50 How. 188 12 Heilbrun V. Hammond 13 Hun, 474 .278,298 Heilman v. Lazarus 90 N. Y. 672 416 Heintz V. Bellinger 38 How. 39 357 Hemiup, Matter of 3 Paige, 305 276 Hemmingway v. Spaulding . . , , 1 How. 70 44 Hempstead v. N. Y. C. & H. R. R. R. Co. 28 Barb. 485 215 Hendricks v. Bouck 2 Abb. 260 145 Henlow v. Leonard 7 Jolins. 200 246 Hennequin v. Butterfield 11 Jones & Sp. 411 iQ Henry v. Mead 4 Law Bull. 10 108 Henslerv. Sefrin 19 Hun, 564 499 Herbert V. Spring 1 Law. Bull. 21 120 Herman V. Lyons 10Hun,[lll 61, 400 Herrick v. Smith 13 Hun, 446 199 Herring v. Hoppock 15 N. Y. 409 .. 229 Herzberg v. Murray 8 Jones & Sp. 271 247 Herzig v. Metzger 62 How. 355 497, 540 Hesse v. Briggs 13 Jones & Sp. 417 92, 94 Hewitt V. Howell 8 How. 346 513 Hewitt V. Morris 5 Jones & Sp. 18. 241, 242 Hewlett V. Brown 1 Bosw. 655 423 Hewlett V. Cock 7 Wend. 371 187 Hewlett V. Wood 62 N. Y. 75 9, 208 Hickox V. Weaver 15 Hun, 375 36 Hicks V. Brennan 10 How. 304 422, 516 Higbie v. QuardianMut. Life Ins. Co. . . . 53 N. Y. 603 183 Higham v. Gault 15 Hun, 383 177, 194 Highland Bank v. Wynkoop Hill & Deuio, 243 501 Hill V. Covell IN. Y. 532 249 Hill V.Grant 46 N. Y. 496 391 Hill V. McReynolds 30 Barb. 488 343 Hill V. Northrop 9 How. 525 60 Hillv. Place V Rob. 389; 48 N. Y. 520 872, 373 Hill V. Simpson 11 Abb. (N. S.) 343 6 Hillv. Smith 3 How. 243 543 Hilton V. Patterson 18 Abb. 345 538 Hinohman v. Butler 7 How. 463 44, 45 Table of Cases. xlix Page. Hinds V. Schenectady Co. Mut. Ins. Co. . 7 How. 143 447 Hinds V. Myers 4 How. 356. . 379 Hinman v. Bergen 5 How. 345 403 Hinman V. Ryder 13 Jones & Sp. 330 418 Hoagland v. Wight 30 How. 70 393 Hoar V. Hoar 33 Hun, 33 , 201 Hoard V. Peck 56 Barb. 303, 183 Hobart v. Hobart 85 N. Y. 637 74, 533 Hobartv. Hobart 63 N. Y. 80 499 Hocbstetter v. Isaacs 44 How. 495 211 Hodge V. City of Buffalo 1 Abb. N. C. 356 190, 335 Hoffman V. Barry 2 Hun, 53 448 Hoffman v. Livingston 1 Johns. Ch. 311 540 Hoffman v. New York Cent. & H. R. E. ) ( 14 Jones & Sp. 526 ; 87 N. Y. 25. . . 177 R. Co ) ( 286 Hoffman v Sparling 13 Hun, 83 43, 44, 71 Hoffman V. Treadwell 5 Paige, 83 584 Holbrook v. Utica, etc., R. R. Co 13 N. Y. 336 389 Holcomb V. Holcomb 30 Hun, 156 499 Holdenv. New York & Erie B'k 73 N. Y. 386 368 Holdridge v. Scott 1 Lans. 303 386 Hollister v. Englehart 7 Hun, 446 320 Holmes v. Anderson 18 Barb. 430 193 Holmes v. Bennett 38 How. 289 70, 71 Holtz V. Schmidt 3 Jones & Sp. 38 130 Honstine v. O'Donnell 5 Hun, 472 193 Hoodv. Hood 85 N. Y. 561 311, 269 Hoodless V. Brundage 8 How. 263 364 Hooker v. Eagle Bank 30 N. Y. 83 116 Hooker V. Rogers 6 Cow. 577 155 Hoosack v. Heyerdahl 6 Jones & Sp. 391 19 Hope V. Lawrence 50 Barb. 258 238, 239 Hopkins V. Walley 81 N. Y. 77 846 Hornfager v. Hornfager 6 How. 13 543 Horton v. Brown 39 Hun, 654 353, 885 Horton v. Horton 3 Cow. 589 509 Hossack V. Heyerdahl , 6 Jones & Sp. 391 75 Hotchldss V. Germania Fire Ins. Co 5 Hun, 90 177, 191, 194, 199 Hotchl?;iss v. Mosher 48 N. Y. 178 116 Houck V. Lasher 17 How. 530 38 Houghkirk v. Delaware & Hud. Canal Co. 28 Hun, 407 503 House v. Eisenlord 30 Hun, 90 379, 383, 384 Howard V. Freeman 3 Abb. (N. S.) 393 158 Howard v. Hayes 15 Jones & Sp. 89 170 Howard v. McDonough 77 N. Y. 592 185, 186 Howe V. Lloyd 3 Lans. 335 354 Howe V. Lloyd 9 Abb. (N. S.) 357 385 Howe V. Muir 4 How. 353 262, 419 Howell V. Biddlecom 52 Barb. 131 393 Howell V. City of Bufialo 15 N. Y. 513 258, 377 a 1 Table of Cases. Page. Howell V. Huyck 2 Abb. Ct. App. 433 116 Howell V. VanSiclen 4 Abb. N. C. 1 406, 414 Howland v. Lennox 4 Jolins. 311 447 Howland V. Willetts 9 N. Y. 170 241 Howland V. Woodruff 60 jS'. T. 73 493 Hoxiev. Green 37 How. 97 171. 234 Hoyt V. American Ex. Bk 1 Duer, 652. 123 Hoyt V. Campbell Col. &Cai. 129 530 Hoyt V. Godfrey 3 Civ. Pro. R. 118 147 Hoyt V. Long Island R. B. Co 57 N. Y. 678 340 Hubbard v. National Protection Ins. Co. . 11 How. 149 ,. . . 41, 42 Hudson V. Caryl 44 N. Y. 553 10, 11 Huff V. Bennett 6 N. Y. 337 185 Hugbes V. Hughes 30 Hun, 349 327 Hull v. Hart 27 Hun, 21 37, 526 Hull V. Hull IHill, 671 46 Hun V. Salter 34 Hun, 640; 92 N. Y. 651 418 Hunn V. Norton Hopk. Ch. 344 381 Hunt V. Bennett 4 E. D. Smith, 647 499 Huntv. Fish 4 Barb. 324 197 Hunt V. Maybee 7 N. Y. 266 334, 340 Hunt V. Middlebrook 14 How. 300 409 Hunt V. Wallis 6 Paige, 371 537 Hunter v. Am. Popular Life Ins. Co 4 Hun, 794. . . 333 Hunter v. Le Conte 6 Cow. 728 531 Hunter v. Wetsell 84 N. Y. 549 , 197 Huntingdon V. Claffin 38 N. Y. 182 487 Huntington v. Conkey 33 Barb. 318 171, 173, 233, 234 Huntoon v. Russell 50 How. 154 344 Hupfel V. Schoemig 2 Jones & Sp. 476 285 Hurd V. Farmers' Loan and Trust Co . . . 16 Week. Dig. 480 409 Hurd V. Swan 4 Denio, 75 81 Hutchinson v. Wheeler 35 Vt. 340 194 Hyattv.Eoach 52 How. 115 17, 71 Hydom v. Cushman 16 Hun, 107 499 Hynes V. McDermott 83 N. Y. 41 339 Hynes v. McDermott 7 Daly, 513 89 I. Ibbotson V. King 10 Jones & Sp. 207 485 Ihl V. Forty-second St. R. R. Co 47 N. Y. 317 220 Ingersoll v. N. Y. Cent. & H. R. R. R. Co. 4 Hun, 277 233 Ingerson v. Miller 47 Barb. 47 502 Ingraham v. Gilbert 30 Barb. 151 230 International Life Ins. Co. v. Sweetland, 14 Abb. 240 41, 42 Irwin V. Deyo 2 Wend. 285 421 Isaacs V. New York Plaster Works 4 Abb. N. C. 4 406 Iselin V. Qraydon 26 How. 95 408 Isnard v. Cazeaux 1 Paige, 39 ' 513 Ives V. Jones 1 Wend. 383 102 Table of Cases. li Page. Ives V. Vaudewater 1 How. 168 17 Ives V. Waters 30 Hun, 297 189 d. Jackett V. Judd 18 How. 385 394, 398 Jackson v. Andrews 59 N. T. 244 273 Jackson v. Brown 1 Caines, 336 155 Jackson v. Brownson 4 Cow. 51 137 Jackson v. Burtis 14 Johns. 391 83 Jackson v. Carpenter 3 Cow. 33 35 Jackson v. Denison 4 Wend. 558 83 Jackson v. Dickenson 15 Johns. 309 347 Jackson v. Edwards 1 Cow. 138 34 Jackson v. Etz 5 Cow. 314 198 Jackson v. Ferguson 3 Caines, 127 530 Jackson v. Figaniere 15 How. 224 408, 409 Jackson v. Giles Col. & Cai. 443 529 Jackson v. Gumaer 3 Cow. 553 521 Jackson v. Hawks 3 Wend. 619 245, 347 Jackson v. Judd 18 How. 385 404 Jackson v. Leggett 7 Wend. 377 334 Jackson v. Lewis 13 Johns. 504 196 Jackson v. Lynch 33 How. 93 403 Jackson v. Malin 15 Johns. 293 507, 508 Jackson v. Marsh 1 Caines, 153 117 Jackson v. McBuruey, 6 How. 408 398 Jackson v. O'Reilly 6 Johns. 19 117 Jackson V. Parkhurst 4 Wend. 369 500 Jackson v. Pell 19 Johns. 269 158 Jackson v. Roe 9 Johns. 77 504 Jackson v. Son 2 Caines, 178 179 Jackson v. Smith 16 Ahb. 201 516 Jackson v. Stiles 3 Caines, 93 40 Jackson v. Thurston 3 Cow. 343 510 Jackson v. Van Antwerp 8 Cow. 373 505 Jackson v. Van Slyke 44 Barb. 116 140 Jackson v. Virgil 3 Johns. 540 530 Jackson v. Wakeman 3 Cow. 578 154, 155 Jackson v. Warford 7 Wend. 63 506 Jackson v. Wilson 9 Johns. 365 537 Jackson v. Woodworth 18 Johns. 135 103 Jaeger v. Kelly 7 Rob. 586 499 James V. Bennett 10 Wend. 540 56 James v. Cowing 83 N. Y. 449 296 Jansen v. Tappen 3 Cow. 34 69, 71 Jaques v, Greenwood 1 Abb. 330 463 Jaques v. Morris 3 E. D. Smith, 639 140 Jefeerson Ins. Co. v. Cotheal 7 Wend. 73 183 Jemison v. Citizens' Savings Bank.. 85 N. Y. 546 109 Jetter, Matter of 78 N. Y. 601 353 Hi Table of Cases. Page. Jewell V. Van Steenburgh 58 N. Y. 85 493 Joannes v. Jennings 4 Hun, 66 496 Jobbitt V. Giles 32 Hun, 274 387 Jones V. Brooklyn Life Ins. Co 61 N. Y. 79 338, 349 Jones V. Case 38 How. 349 400 Jones V. Cook 11 Hun, 330 433, 539, 543 Jones V. Easton 11 Abb. jST. C. 114 433 Jones V. Gray 13 Wend. 380 405 Jones V. Grant 10 Paige, 348 8 Jones v.Hoyt 16 Jones & Sp. 118 108 Jonesv. Osgood 6 N. Y. 333 339, 240 Jones V. Tucker 41 N. H. 546 182 Jones V. United States Slate Co 16How.l29 543 Jones V. Underwood 28 Barb. 481 188 Johnson v. Brown 57 Barb. 118 313 Johnson V. Catlin 57 N, Y. 652 63, 374 Jobnsonv. Chappell 7 Daly, 43 400 Johnson V. Blwood 53 N. Y. 431 231 Johnson V. Elwood 56 N. Y. 614 231 Johnson v. Everett 9 Paige, 636 449 Johnson v. Fellows 6 Hill, 353 369 Johnson V. Green 3 Abb. (N. S.) 342 537 Johnson v. Hudson River R. E. Co 20 N. Y. 65 221, 332 Johnson V. Lynch 15 How. 199 39, 100 Johnson V. People 3 Hill, 178 195 Johnson v. Rogers 3 Cow. 14 45 Johnson V. Taber 10 N. Y. 319 381 Johnson v. White 6 Hun, 587 4 Johnson v. Whitlock 13 N. Y. 344 297 Jordan v. Garrison , . 6 How. 6 40, 46, 47 Joslyn V. Joslyn 9 Hun, 388 311, 266 Judsonv.Gray 11 N. Y. 408 287 Julio V. Ingalls 15 Abb. 439 35 K. Kain v. Delano 11 Abb. (N. S.) 29 17, 70, 71 Kamp V. Kamp 59 N. Y. 312 541 Kanna v. Kester 15 Week. Dig. 119 237 Katt V. GermaniaFire Ins. Co 26 Hun, 429 263 Katz V. Kuhn 9 Daly, 166 170 Kaupe V. Isdell 3 Rob. 699 120 Kavanagh v. Wilson 70 N. Y. 177 . .177, 194, 225 Kayv.Whittaker 44 N. Y. 565 8, 450 Keator v. Ulster & Del. Plankroad Co. . . 7 How. 41 69, 263 Keeler v. Po'keepsie, etc., Plankr'd Co.. . 10 How. 11 21 Keeler v. Van Wie 49 How. 97 355 Keep V. Keep 58 How. 139 17 Keep V. Tyler 4 Cow. 541 48 Keiley V. Dusenbury 10 Jones & Sp. 238 14 Keiny v. Ingraham 66 Barb. 250 357, 36 Table of Cases. liii Page. KeUer v. N. Y. C. R.'R. Co 24 Hun, 173 237 Keller v. Strasburger 90 N. Y. 379 237 Kellogg V. Howell /. 63 How. 380 515 Kellogg V. Rand 11 Paige, 59 346 Kelly V. Downing 43 N. Y. 71 451 Kelly V. Frazier 27 Hun, 314 510 Kelly V. Kelly 3 Barb. 419 318, 319 Kelly V. Manhattan Beacli Ey. Co 81 N. Y. 333 357 Kelly V. Matliam 3 Week. Dig. 173 45 Kelly V. Sheeban 76 N. Y. 335 74, 484 Kelly V. West 4 Jones & Sp. 304 372, 373 Kennedy v. Kenna 49 How. 308 17, 31 Kennedy t. McGuire 15 Hun, 70 197 Kennedy v. Oswego & S. R. R. Co 67 Barb. 169 230 Kennedy v. Simmons 1 Hun, 603 527 Kent V. Quicksilver Mining Co 23 Hun, 199 304 Kentisb V. Tatbam 6 Hill, 872 34 Keogb V. Westervelt 66 N. Y. 636 299 Kerkerv. Carter 1 Hill, 101 151, 178 Kern v. Towsley 51 Barb. 385 218 Kerr v. Davis 7 Paige, 53 35 Kerr v. MoGuire 38 N. Y. 446 117 Kerslake v. Scboonmaker 1 Hun, 436 268 Ketcbum, Matter of 60 How. 154 544 Keyser v. Kelly 11 Jones & Sp. 33 385 Kibbe v. Wetmore 31 Hun, 434 530 Kiernan v. Rocbeleau .'. , 6 Bosw. 148 338 Kilbourne v. Faircbild 12 Wend. 293 46 Kilmerv. Hathorn 73 N. Y. 338 75, 483, 484 Kilmer v. O'Brien 13 Hun, 334 293 Kimball v. Davis 19 Wend. 437 113, 193 Kimberly v. Stewart 22 How. 281 387 Kingv.D'Eon 1 W. Bla. 510 154 King V. Edmunds 4 Bam. & Aid. 471 163, 166 King V. Jones 8 East, 31 155 King V. New York C. & H. R. R. R. Co. . 73 N. Y. 607 178 King V. Poole 36 Barb. 343 367 King V. Stafford 5 How. 30 448 Kluender V. Lyncb 4 Keyes, 361 303,338, 340 Kingsley v. City of Brooklyn 1 Abb. N. C. 108 17 Kinney v. Roberts & Co 36 Hun, 166 91, 528 Kinnier v. Kinnier 44 N. Y. 535 138 Kipp V. Delamater 58 How. 183 48 Kirkv. Blasbfield 6 N. Y. Sup. Ct. (T. & C.) 509 363 Knappv. Fowler 30 Hun, 512 204, 331, 366 Knapp V. Rocbe 83 N. Y. 366 449 Knapp V. Rocbe 5 Jones & Sp. 395 313 Knapp V. Post 10 Hun, 35 497 Knickerbocker Bank,.Matter of 19 Barb. 603 533 Knickerbocker Life Ins. Co. v. Clark. ... 33 Hun, 506 43 liv Table of Cases. Knickerbocker Life Ins. Co. v. Hill 16 Abb. (N. S.) 331 318 Knickerbocker Life Ins. Co. v. Nelson . . 8 Hun, 31 11, 12, 65 Knigbt V. Cunnington 6 Hun, 100 179, 180, 189 Knigbt V. Forward 63 Barb. 311 191 Kobbev. Price 14 Hun, 55 234 Koeblerv. Adler 78 N. Y. 287 190, 335, 227, 230 Koelges v. Guardian Life Ins. Co 57 N. Y. 638 235 Koenig v. Stockel 58 How. 475 445 Kreitz V. Frost 55 Barb. 474 383 Kuebnemundt v. Haar 58 How, 464 141 Labar v. Koplin 4 N. Y. 547 318, 347, 348 La Beau v. People 34 N. Y. 233 177, 178 Lacbenmeyer v. Lacbenmeyer 36 Hun, 543 534, 533 Lacustrine Fertilizer Co. v. Lake 16 Hun, 484. 448 La Farge v. Luce 2 Wend. 343 103 La Farge v. Van Wagenen 14 How. 54 313, 533 Lake V. Artisans' Bank 3 Keyes, 276 487 Lakey v. Cogswell 3 Code H. 116 2 Lalor V. Fisber 2 Rob. 669 515 Lambv. Camden &AmboyR.R.& T. Co. 2 Daly, 454 499 Lammond v. Volans 14 Hun, 363 336 Lamour v. Caryl 4 Denio, 370 183 Langbeinv. Gross 14 Abb. (N. S.)412 542 Langdon v. Evans 39 Hun, 653 74, 484 Langdon v. Guy 91 N. Y. 660 359, 361 Lane v. Borst 5 Rob. 609 379, 380 Lane v. Gilbert 9 How. 150 4 Lane v. Hayward 38 Hun, 583 314 Lanev.Morse 6 Hun, 394 519 Lane V.Salter 4 Rob. 339 141 Lane v. Van Orden 63 How. 337 410 Lane v. Van Orden 11 Abb. N. C. 338 367 Langley v. Warner 3 N. Y. 327 249 Lansing V. Hadsall 26 Hun, 617 8, 450 Lansing v. Miokles 1 How. 348 45, 100 Lansing V. RusseU 3 N. Y. 563 66, 373 Lansing v. Van Alstyne 3 Wend. 561 334 Lansing v. Wiswall 5 Denio, 313 239 Lapbam V. Rice 55 N. Y. 473 311 Latbam v. Bliss 6 Duer, 661 365 Latbam v. Bliss 13 How. 416 404 Lattimer V. Hill 8 Hun, 171 501 Lattimer v. Livermore 72 N. Y. 174 415 Latbrop V. Bramball 3 Hun, 394: 64 N. Y. 365 267, 268 Launitz v. Barnum 4 Sandf . 637 ; 358 Law V. McDonald 9 Hun, 23 356, 379, 381 Lawrence v. Davis 7 How. 354 6 Lawrence v. Fowler 30 How. 407 397 Table of Cases. Iv Page. Lawson v. Bachman 81 N. Y. 616 116 Leacroft v. Fowler 7 How. 359 69 Learn v. Currier 15 Hun, 184 356 Leavy v. Roberts 2 Hilt. 385 507 Ledwicli V. McKim 53 N. Y. 307 231 Ledyard v. Jones 7 N. Y. 550 501 Lee V. Chadsey 3 Keyes, 335 190, 191 Lefevre V. Lefevre 59 N. Y. 434 379 Le Forge V. CMlson 3 Sandf. 753 462 Lefler V. Field , 47 N. Y. 407 395 Lefler v. Field 50 Barb. 407 177, 298, 399 Lefler v. Field 33 How. 385 267, 380 Leggett V. Hyde 58 N. Y. 273 230 Leigbton v. People 10 Abb. N. C. 261 248 Leigbtonv. Wood 17 Abb. 177 543 Leitcb V. Brotberson 35 How. 407 288 Lelandv. Bennett 5 Hill, 386 173 Lennox v. Eldred 65 Barb. 526 544 Leonard V. DaTenport 58 How. 384 379 Leonard v. Mulry 5 Law Bull. 24 495 Leonard v. New York C. & H. R. R. R. Co. 10 Jones & Sp. 335 223 Leonard v. Bisbop 4 Duer, 430 198 Leopold V. Meyer 3 Hilt. 580 391 Le Boy v. Park Fire Ins. Co 39 N. Y. 56 339 Lenbard v. Lyncb 63 How. 56 30 Levin v. Haas 35 Hun, 366 365 Levin V. Russell 43 N. Y. 351 301 Levy V. Loeb 5 Abb. N. C. 157 1, 90, 540 Lewis V. City of Buffalo 39 How. 885 141 Lewis V. Grabam 16 Abb. 136 . . .515, 516 Lewis V. Jones 13 Abb. 437 384, 385 Lewis V. Mott 36 N. Y. 399 14 Lewis V. Rider 13 Abb. 1 173 Lewis V. Smith 9 N. Y. 503 349 Lewis V. Varnum 13 Abb. 305 10 Liegeois v. McCracken 32 Hun, 69 143, 144 LilUs V. O'Connor 8 Hun, 380 359, 360, 481 Lincoln v. Lincoln 6 Rob. 535 74 Lindsay v. People 5 Hun, 104 205, 207 Lindsay V. People •. 63 N. Y. 143 300 Lindsay V. Sherman 5 How. 308 540, 541 Lmdslay v. Deafendorf 43 How. 90 367, 368, 383, 385 Lindsley v. European Petroleum Co 3 Lans. 176 170, 234 Linsday v. People 67 Barb. 548 500 Lisherv. Palmelee 1 Wend. 33 137 Litchfield V. Smith 7 Bob. 306 75 Little V. Bigelow 3 How. 164 71 Livermore V. Bainbridge . . . , 56 N. Y. 72 293, 395 Livingston, Matter of 34 N. Y. 555 , 541 Livingston v. Cheetham 1 Johns. 60 76 Ivi Table of Cases. Page. Livingston v. Cheetliam 2 Jolins. 479 531 Livingston v. Curtis 12 Hun, 121 122 Livingston v. Gidney 25 How. 1 288, 290 Livingston v. Mildrum 19 N. Y. 440 346 Livingston v. Swift 23 How. 1 538 Livingston v. Vielle Zinc Mining Co 4 Duer, 681 402 Lloyd V. Thompson 5 111. App. 90 178 Locklinv. Casler 50 How. 43 371 Lockman v. Ellis 58 How. 100 56, 412, 544 Loeschigk v. Addison 7 Hob. 506 211 Logan V. Thomas 11 How. 160 432 Lomer v. Meeker 25 N. Y. 361 218, 219, 334, 225 Long V. Lamkin 9 Cush. 365 194 Long V. Lyons , . . 54 How. 129 347 Loop V. Gould 17 Hun, 585 93 Loosey v. Orser 4 Bosw. 391 140 Lord V.Coke 1 W. Bla. 433 155 Lord V. Connor 48 How. 95 70 Lord V. Vandenburgh. 15 How. 363 533 Lorillard v. Clyde 86 N. Y. 384 138 Losee v. BuUard 54 How. 319 400, 410 Losee v. Ellis 13 Hun, 655 379 Losee v. Losee 2 Hill, 609 196 Loveridge V. Hill 15 Week. Dig. 149 205 Low V. Graydon 14 Abb. 444 120 Low V. Hart 90 N. Y. 457 379 Lowber v. Mayor of N. Y 5 Abb. 327, note 530 Lowe V. Lowe 40 Iowa, 220 170 Lowe V. Lommell 5 Daly, 17 211 Lowery v. Inman 37 How. 386 143 Lowerre v. Vail 5 Abb. 330 386, 431 Lucas V. McEnerna 19 Hun, 14 220 Luddington v. Miller 4 Jones & Sp. 1 489 Ludewig v. Pariser 4 Abb. N. C. 246 90 Lumbardv. Syracuse, B.&N.Y.E.R. Co. 62 N. Y. 290 60, 374 Lund V. Broadhead 41 How. 146 363, 364 Lusher v. Walton 1 Caines, 150 72 Lynch v. Meyers 3 Daly, 256 427 Lynch v. Levy 11 Hun, 145 139 Lynch v. Mosher 4 How. 86 40, 44 Lyon V. Adde 63 Barb. 89 187 Lyons v. Muratt 54 How. 33 35 Lyon v. Yates 61 N. Y. 661 461 M. Mabbett v. White , 12 N. Y. 442 203 McAdams, Matter of 19 Hun, 292 410 McAudrew V. Whitlock 3 Sweeny, 623 280 391 McArthur v. Soule 5 Hun, 63 190 McCabe v. Brayton 38 N. Y. 196 192, 208 Table of Cases. Ivii Page. McCall T. Sun Mut. Ins. Co 50 N. Y. 332 93 McCanu v. Rowley 19 Wend. 85 150 McCarthy v. Peake 18 How. 138 35 McCarty v. Edwards 24 How. 286 11 McCleary v. McCleary 30 Hun, 154 74, 282, 461 McClure v. Supervisors of Niagara Co. . . 4 Abb. (N. S.) 202 253, 377 McCoIIum V. Seward ; 62 N. Y. 816 183 McComber v. Granite Ins. Co 15 N. Y. 495 213 McCombie v. Spader 1 Hun, 193 202 McCoon V. White 60 How. 149 .' 89, 90 McCormick v. Penn. Cent. B. R. Co 49 N. Y. 303 186 McCotter v. Hooker 8 N. Y. 497 224 McCouuT. N. Y. Cent. & H. R. R. R. Co... 50 N. Y. 176 543 McCoy. O'Donnell f ^^ ^^ ll". .^.'; .^."•. ". ^.1^.^.^. ^7^ 373 McCrackeu v. Valentine's Ex'rs 9 N. Y. 42 318 MoCullough V. Brodie 6 Duer, 659 17, 19 MacDonald V. Garrison 2 Hilt. 510 105, 196 McDonald v. Garrison 18 How. 249 95 McDonald v. Walter 40 N. Y. 551 502, 503 McDonnell v. Stevens 9 Hun, 28 19 McElwain v. Corning 13 Abb. 16 210 McEvoy V. Appleby 27 Hun, 44 478 McEwen v. Brewster 17 Hun, 238 478 McFarren v. St. John 14 Hun, 387 61 McGaffin v. City of Cohoes 11 Hun, 857 ; 74 N. Y. 387. . . .253, 377 McGarry v. Board of Supervisors 7 Rob. 464 210 McGinleyv. United States Ins. Co... .. 77 N. Y. 495 239 McGoldrick v. Traphegen 88 N. Y. 334 189 McGovern v. New York Cent. & H. R. E.B.CO. ' 67H.T.1W 228 \ McGowan v. Newman 4 Abb. N. C. 80 263, 318, 319 McGuffin V. Dinsmore 4 Abb. N. C. 241 83 McGuire v. People 48 How. 517 179 McGuire V. Sinclair 47 N. Y. 360 338 Mcintosh V. Ensign " 38 N. Y. 169 225 Mclnroy v. Benedict 11 Johns. 403 263, 365 M'Kay v. Marine Ins. Co 3 Caines, 884 154, 155 McKenzie v. HackstafE 2 E. D. Smith, 75 542 McKeon v. See 51 N. Y. 300 14 Mackey v. Auer 8 Hun, 180 139 McKivitt V. Cone 20 Iowa, 455 186 McKyring v. Bull 16 N. Y. 297 4 McLean V. Freeman 70 N. Y. 81 383 McLean v. Hoyt 56 How. 851 433 McLean v. Tompkins 18 Abb. 34 , 514 McLees v. Avery 4 How. 441 410 McMahon V. Allan 27 Barb. 335 305 McMahon v. Mut. Benefit Life Ins. Co. . 12 Abb. 28 34 McMahon V. New York & Erie By. Co.. 20 N. Y. 468 298 H Iviii Table of Cases. Page. McMaster v. Booth 4 How. 437 17 McMichael V. Kilmer 76 N. Y. 36 220 McMonagle v. Conkey ... 14 Hun, 326 99 McMulkin v. Bates 46 How. 405 408 McMullen V. Hoyt 2 Daly, 271 219 McPherson v. Rathbone 7 Wend. 216 83, 117 Magee v. Badger 30 Barb. 246 237, 241 Magie T.Baker 14 N. Y. 435 297 Magnin v. Dinsmore 46 How. 297 420 Magnin v. Dinsmore 47 How. 11 410, 544 Magnin V. Dinsmore 15 Abb. (N. S.) 331 63, 374 Magown v. Sinclair 5 Daly, 63 17, 18, 20, 71 Maher v. Cent. Park, etc., E. R. Co 67 N. Y. 53 233 Maber v. O'Connor 61 How. 103 434 Maboney v. Decker 18 Hun, 365 343, 509 Mainv.Pope 16 How. 271 263,419, 530 Mairs t. Manhattan Real Estate Ass'n. . . 15 Jones & Sp. 31 288 Mairs v. Remsen 2 Code R. 138 40, 514 Malamv. Simpson 12 Abb. 325 - 404 Mallory v. Benjamin 9 How. 419 83 Mallory v. Travelers' Ins. Co 47 N. Y. 53 226 Mandeville v. Gurnsey 51 Barb. 99 207 Mandeville v. Marvin 80 Hun, 282 298, 299 Mandeville V. Reynolds 68 N. Y. 538 185 Manley v. Insurance Co. of N. A 1 Lans. 30 291 Maan v. Tyler 6 How. 235 418, 419 Manning v. Monaghan 23 N. Y. 539 349 Mansfield v. Wheeler 33 Wend. 79 501 Mantles v. Myle 26 How. 409 290 Marble v. Lewis 53 Barb. 432 60 Marckwald v. Oceanic Steam Nav. Co. . . 8 Hun, 547 493 Marcly V. Shults 29 N. Y. 346 185, 186 Maretzek v. Cauldweil 4 Rob. 666 149 Marie v. Garrison 83 N. Y. 14 188 Mark v. Citj of Buffalo 87 N. Y. 184 364, 424, 433 Marks V. King 64 N. Y. 628 208, 337 Markoe v. Aldrich 1 Abb. 55 190 Marquat v. Marquat 12 N". Y. 336 225 Marquat v. Mulvy 9 Hun, 460 516 Marquisee v. Brigham 12 How. 399 6 Marsh v. Hussey 4 Bosw. 614 388 Marsh v. Village of Lansingburgh 81 Hun, 514 377 Marsh v. Woolsey l4 Hun, 1 93, 94 Marshall v. Davies 78 N. Y. 414 173 Marshall v. Meech 51 N. Y. 140 .377, 581 Marston v. Hebert 60 How. 490 399 Marston v. Sweet 66 N. Y. 306 4 Marsullo v. Billatto 55 How. 375 420 Martin v. Hicks 6 Hun, 74 158 Martin v. Kanouse 3 Abb. 390 516 Table of Cases. llx Page. Martin v. Martin 3 How. 203 3G9 Martin v. Mattison 8 Abb. 3 140 Martin v. Windsor Hotel Co 70 N. T. 101; 10 Hun, 304. . .17, 20, 75 Martine v. Albro 26 Hun, 559 , . . 121 Maryott v. Tliayer 7 Jones & Sp. 417 18, 75 Mason v. Breslin 2 Sweeny, 386 , 487 Mason v. Brown 6 How. 481 46 Mason & Hamlin Organ Co. v. Pugsley . . 19 Hun, 283 104, 111, 113, 114 MasRoth V. Delaware & Hudson Canal Co. 64 N. T. 524 224, 236 Masterson v. Cranitch 66 How. 171 278 Matliews v. Poultney 33 Barb. 127 383 Matson v. Farm Building Ins. Co 73 N. Y. 310 232 Matthews v. Duryee 4 Keyes, 525 298 Matthews v. Matson 3 Civ. Pro. R. 157 427 Matthews v. Meyberg 63 N. Y. 656 :..... 200 Mattice v. Allen 33 Barb. 543 179, 197 Mayer V. Apfcl 2 Sweeny, 729 535,541 Mayer v. Noll 56 How. 214 93 Mayer v. People 80 N. Y. 364 178, 179 Maynard v. Chapin 7 Wend. 520 103 Mayor v. Coffin 90 N. Y. 313 49 Mayor v. Erben 10 Bosw 189 299 Mayor of N. Y. v. Genet 67 Barb. 275 .69, 72 Mayor of N. Y. v. Genet .4 Hun, 658 150 Mayor of N. Y. v. Janes 17 Hun, 588 12 Mayor of N. Y. v. Lyons 24 Hun, 280 515 Mayor of N. Y. v. Mason 4 E. D. Smith, 142 224 Mayor of N. Y. v. New York & Staten I g4 ^ y 624 538 Island Ferry Co f Mayor v. Second Ave. R. R. Co 31 Hun, 241 185 Meachamv. Burke 54 N. Y. 317 295, 296 Meacham v. Pell 51 Barb. 65 . . 185 Meadv. Mallory 37 How. 82 447 Meadv. Shea 93 N Y 133 302, 234 Mead v. Smith 28 Hun, 639 298, 299 Meakin v. Anderson 11 Barb. 215 504, 507 Mechanics' Banking As's'n v. Kiersted. . . 4 Duer, 639 512 Mechanics' Banking Ass'n v. Kiersted ... 10 How. 400 404 Mechanics' B'king Ass'n v. Mariposa Co.. 7 Rob. 225 228 Mechanics & Farmers' Bank v. Smith. . . 19 Johns. 115^ 167 Mechl v. Schwieckart 67 Barb. 599 357 Meech V. Calkins 4 Hill, 534 40, 100 Mela V. Geis 3 Civ. Pro. R. 153 373 Meltzerv.Doll 91 N. Y. 365 177, 194, 254, 378 Menard v. Stevens 13 Jones & Sp. 515 238 Mercer v. Vose 67 N. Y. 56 ; 8 Jones&Sp. 318. .184, 306 Mercer v. Sayre 7 Johns. 306 173 Merceron v. Fowler 14 Jones & Sp. 351 389 Merchants' Bank v. Thompson 55 N. Y. 7 349 Merrill v. Grinnell 10 How. 31 44 Merrill v. Ithaca, etc., E. B. Co 16 Wend. 600 186 Ix Table of Cases. Page. Merrill V. Merrill 11 Abb. (N. S.) 74 , 74 Merritt v. Baker 11 How. 456 531 Merritt v. Seaman 6 N. Y. 168 203 Merritt v. Thompson 27 N. Y. 225 385 Merritt v. Vigelius 28 Hun, 420 20 Merritt v. Village of Port Chester 6 Hun, 40 311 Mesick v. Smith 2 How. 7 71 Messenger v. Fourth Nat. B'k 6 Daly, 190 317, 505 Messenger v. Fourth Nat. B'k 48 How. 543 507 Messenger v. Holmes 12 Wend. 303 43 Mersereau v. Ryerss 13 How. 300 43 Metropolitan Life Ins. Co. v. McCoy 13 Week. Dig. 100 47 Metropolitan Nat. B'k v. Hale 88 Hun, 341 176, 186, 187 Mettlestadt v. Ninth Ave. E. R. Co 4 Rob. 377 333 Meyer v. Fiegel 7 Rob. 123 169, 213 Meyer v. Fiegel 38 How. 434 507, 509 Meyer V. Goedel 31 How. 456 173 Meyer V. Lathrop 73 N. Y. 315 390 Meyer V. Lent 7 Abb. 335 531 Meyer v. McLean 1 Johns. 509 218 Meyer v. Meyer 7 Week. Dig. 535 461 Miaghan v. Hartford Fire Ins. Co 24 Hun, 58 214 Middlebrook v. Broadbent 47 N. Y. 443 297 Miles V. Sackett 30 Hun, 68 177 Miller v. Ames 1 How. 55 44 Miller V. Barber 66 N. Y. 558 173 Miller v. Hall 8 Jones & Sp. 262 ; 70 N. Y. 250. . . 269 Miller v. Hooker 2 How. 171 19 Miller v. Miller 37 How. 1, 516 Millerv. Montgomery 78 N". Y. 283 201, 204, 205, 206 Miller v Palmer 1 How. 54 43, 44 Millerv. Sheldon 15 Hun, 220 449, 544 Miller v. Stettiner 5 Bosw. 695 1 Millerv. Wilson 1 Barb. 233 65 Millerd v. Thorn 56 N. Y. 402 170, 383 Milligan v. Robinson 58 How. 380 867 Milliner v. Lucas 3 Hun, 496 499 MilUns V. Shafer 3 Denio, 60 520 Mills V. Hoag , 7 Paige, 18 449 Mills V. Thursby '. 11 How. 113 31, 539 Minck V. City of Troy 19 Hun, 353 503 Minor v. Garrison 4 Johns. 481 44 Minor v. Mayor, etc., of New York 5 Jones & Sp. 171 231 Mitchell V. Borden 8 Wend. 570 234 Mitchell V. (Jarter 14 Hun, 448 243, 347, 510 Mitchell V. Ehle 10 Wend. 595 348, 510 Mitchell V. Hall 7 How. 490. 419 Mitchell vr. Mount 17 Abb. 218 385 Mitchell V. Parks 36 Ind. 354 248 Mitchell V. Stewart 8 Abb (N. S.) 250 21 Table of Cases. Ixi Page. Mitoliell V. Westervelt 6 How. 165 399, 447, 543 Mitchell's Case... 12 Abb. 249 83 Moffatt V. Ford 14 Barb. 577 400 Moffatt V. Henderson 16 Jones & Sp. 449 355 Moffat V. Jndd 1 How. 193 74, 538 Moffatt V. McLaughlin 13 Hun, 449 139 Moffat V. Moffat 10 Bosw. 468 11, 14 Moffat V. Mount 17 Abb. 4 11, 14 Mojarrieta v. Saenz 80 N. Y. 553 532 Moloughney v. Kavanagb 3 Civ. Pro. R. 253 147 Monell V. Marshall 25 How. 425 291 Montrait v. Hutchins 49 How. 105 515 Moody V. Pomeroy 4 Denio, 115. 242 Mooney v. British Commer'l Life Ins. Co. 9 Abb. (N. S.) 103 514 Moore V. Cockroft 9 How. 479 404, 424 Moore v. Gadsden 93 N. Y. 12 219 Moore V. McKibbin 33 Barb. 246 215 Moore v. Merritt 9 Wend. 482 540 Moore v. Metropolitan Nat. Bank 45 N. Y. 41 12 Moore v. Shaw 15 Hun, 428 ; 77 N. Y. 512 351, 449 Moran v. Anderson 1 Abb. 288 139 Morange v. Meigs 54 N. Y. 207 265 Morehouse v. Yeager 71 N. Y. 594 237 Morgan v. Frees 15 Barb. 352 193 Morgan V. Mulligan 50 N. Y. 665 295 Morganv.Reid 7 Abb. 215 500 Morgan v. Skidmore 3 Abb. N. C. 92 384, 385 Morrell V. Kimball , 4 Abb. 352 67 Morrell v. Morrell 17 Hun, 324 10, 66 Morris v. Crawford 16 Abb. 124 127 Morris v. Knox 6 Abb. 328, note 50 Morris v. Morange 38 N. Y. 172 449 Morris v. Wadsworth 17 Wend. 118 171 Morris V. Wheeler , 45 N. Y. 708 379, 384, 408 Morrison v. Agate 2 Hun, 23 414 Morrison v. Brie R'y Co 56 N. Y. 302 223 Morrison v. Ide 4 How. 304. 398, 544 Morrison v. N. Y. & N". H. B. R. Co 32 Barb. 568 224 Morrison v. Sturges 26 How. 177 119 Morss V. Gleason 2 Hun, 31 171 Morss V. Hasbrouck 13 Week. Dig. 393 409 Morss V. Jacobs 35 How. 90 371 Morss V. Osbom 64 Barb. 54 219 Mosher v. Lawrence.' 4 Denio, 419 201 Moses V. Walker 2 Hilt. 526 139 Mott V. Consumers' Ice Co 52 How. 148 123 Moulton V. Beecher 11 Hun, 193; 1 Abb. N. C. 193. . 40, 43 413, 418 Moulton V. Townsend 16 How. 306 447 Moyerv. N. Y. C. & H. R. R. R. Co ... 88 N. Y. 351 279 I Ixii Table of Cases. Page, Moza V. Sun Mut. Ins. Co 22 How. 60 448 Muller V. Bayard , 15 Abb. 449 35'? Muller V. McKesson 73 N. Y. 195 227 Muller V. Struppman 6 Abb. N. C. 343 390 Mulqueen v. Duffy 6 Hun, 299 203 Muudorff V. MundorfE 1 Hun, 41 ; 53 N. Y. 563 305 Murdoc V. Adams 10 Hun, 566 432 Murphy v. Allertou 7 Hun, 650 143 Murray v. Hudson River R. R. Co 47 Barb. 196 ; 48 N. Y. 655 503 Murray v. Kirkpatrick 1 Cow. 210 100 Murray v. New York Life Ins. Co 85 N. Y. 286 170, 223, 234 Murray v. New York Life Ins. Co 30 Hun, 428 249 Murray v. Robinson 9 Hun, 137 411 Murray V. Smitli 1 Duer, 412, 240 Murtagb v. Connor 15 Hun, 488 444 Murtlia V. Curley 90 N. Y. 372 452, 478 Murtha v. Curley 92 N. Y. 359 365 Muscott V. Runge 27 How. 85 80, 81, 422, 446 Musgrave v. Sberwood 29 Hun, 475 413 Mygatt V. Garrison 18 Abb. 292, note 100 Mygatt V. Willcox 85 How. 410 401 N. Nason v. Luddington 56 How. 172 263, 264 National Bank of Syracuse v. McKinstry 2 Hun, 443 401 Naugatuck Cutlery Co. v. Rowe 5 Abb. N. C. 142 401, 402 Neftel V. Ligbtstone 77 N. Y. 96 221 Neil V. Abel 24 Wend. 185 241 Neil V. Thorn 88 N. Y. 270.174,178,179,205,217, 500 Neill V. Wuest 17 Abb. 319, note 534 Nelson V. Ingersoll 27 How. 1 280, 291 Nelson V. N. Y. C. & H. R. R. R. Co.... 1 Law BuU. 15 495 Nelson v. Sun Mut. Ins. Co 71 N. Y. 453 182 Nesmith v. Atlantic Ins. Co 8 Abb. 423 76 Nesmith v. Clinton Fire Ins. Co 8 Abb. 141 243, 509, 510 Neudecker v. Kohlberg 81 N. Y. 296 220 New V. Anthony 4 Hun, 52 365 Newberg v. Garland 31 Barb. 121 140 Newbury v. Newbury 6 How. 182 523 Newcombv. Griswold 24 N. Y. 298 192, 195 Newcomb v. Johnson 9 Wend. 451 151 Newell V. Doty 33 N. Y. 83 297 New England Iron Co. v. New York ) gg ^^^ gg^ Loan, etc.. Improvement Co ) ' ' ^*" Newell V. Wheeler 48 N. Y. 486 381 Newhall v. Appletou 15 Jones & Sp. 38 506 Newhall v. Appleton 14 Jones & Sp. 6, 485, 490 Newins V. Baird 19 Hun, 306 344, 458 New Jersey Zinc Co. v. Blood 8 Abb. 149 43, 46 Newlin v. Lyon 49 N. Y. 661 297 Table of Oases. bciii Page. Newman V. GreifE 3 Civ. Pro. R. 363 399 Newmaji v. Goddard 3 Hun, 70 207, 500 Newman v. Goddard 20 Hun, 563 490 Newman v. Marvin 13 Hun, 236 311, 266, 269 Newman v. Otto 4 Satidf . 668 4 Newman v. Supervisors of Livingston Co. 1 Lans. 476 141 Newman v. Supervisors of Livingston Go. 45 N. Y. 676 11, 353 Newstadt v. Adams 5 Duer, 43 213 Newton v. Harris 6 N. Y. 345 177, 194 Newton v. Milleville Manuf. Co 17 Abb. 318, note 310 Newton v. Porter 69 N. Y. 133 113, 114 New York Elevated E. R. Co. v. Harrold. 30 Hun, 466 413 New York Eleva'd R. R. Co. v. McDaniel. 31 Hun, 310 383 New York Central Ins. Co. v. Kelsey. . . 13 How. 535 137 New York C. & H. R. R. R. Co., Matter of. 60 N. Y. 113 74, 484 New York C. &H.R.R. R. Co., Matter of. 90 N. Y. 342 500 New York Fire & Mar. Ins. Co. v. Burrell. 9 How. 398 56, 413 New York Firemen's Ins. Co. v. Walden. 12 Johns. 513 236 New York & Harlem R. R. Co. v. Mayor. 1 Hilt. 563 530 New York & N. H. R. R. Co. v. Schuyler. 39 How. 89 367 New York & Oswego Midland R. R. Co. 40 How. 335 541 New York State Monitor Milk Pan As- ) sociation v. Remington Agricultural }■ 89 N. Y. 82 310 Works ) Niblo V. Binsse 31 How. 476 412 Nichols V. Goldsmith 7 Wend. 160 228 Nickerson v. Ruger 76 N. Y. 379 205 Niles V. liiudsley 1 Duer, 610 359 Niles V. Maynard 38 How. 390 390 Niver v. Rossman 5 How. 153 419 Nixen v. Hallett 3 Johns. Cas. 218 154 Nixon V. Palmer..., 10 Barb. 175 189, 190 Noble V. Cromwell 37 How. 389 307 Noltou V. Harris 52 How. 409 503 Nolton V. Moses 3 Barb. 31 174, 197, 236 Norbury v. Seeley 4 How. 73 8 North V. Sargeant , 14 Abb. 333 149, 510 Northrop v. Van Dusen 5 How. 134 539, 542, 543 Nosser v. Corwin 36 How. 540 315 Noxon V. Beutley 7 How. 316 141 Noxon V. Bentley 6 Cow. 418 157 o. Oakley v. Sears 2 Rob. 440 204 Oakley v. Sears 7 Rob. Ill 504, 507, 508 Oberlander v. Spiess 45 N. Y. 175 391 O'Brien v. Bowes 4 Bosw. 657 270 O'Brien v. Commercial Fire Ins. Co 6 Jones & Sp. 4 400 O'Brien v. Merchants' Fire Ins. Co 6 Jones & Sp. 483 341 O'Brien v. Merchants' Ins. Co 48 How. 448 .' 509 Ixiv Table of Cases. Page. Oeclis V. Cook 8 Duer, 161 4 Ogden V. Payne 5 Cow. 15 154, 155 Ogdensburg etc R. R. Co. v. Vermont ) gg j^ ^ j^g ^^g & Canada R. R. Co J O'Haganv. Dillon 76 N. Y. 170 175, 176, 207 O'Hara V. Brophy 34 How. 379 379, 394 O'Keefe V. Sheplierd 33 Hun, 171 355 Olcott V. Robinson 31 N. Y. 151 311 Oldfield V. New York & Harlem E. R. Co. 14 N. Y. 310 340 Oliver v. First Presbyterian Ch 5 Cow. 383 510 Olendorf v. Cook 1 Lans. 37 313 Olery v. Brown 51 How. 93 139 Olmstead v. Jones 1 How. 354 46 Olmsted V. Lewis 9 N. Y. 433 73 O'NeiU V. James 43 N. Y. 84 337 Onondaga Bank v. Sheplierd 19 Wend. 10 40 Opper V. CaiUon 9 Daly, 157 170, 171 Oppenbeimer V. Walker 3 Hun, 30 298 Oregon SteamsMp Co. v. Otis 37 Hun, 453 313 O'Reilly v. City of Kingston 30 Hun, 508 16 O'Reilly V. Davies 4 Sandf. 733 357 Ormesv. Daucby 83 N. Y. 443 327, 338, 330 Ormsby V. Babcock 4 Duer, 680 403 Osborn v. Betts 8 How. 31 363, 418 Osgood v. Manhattan Co 3 Cow. 613 499 Osgood V. Whittelsey 10 Abb. 134 143 Ostrander v. Harper 14 How. 16 513 Ostrander V. Conkey 30 Hun, 421 126 O'Sullivau V. Roberts 7 Jones & Sp. 360 .307, 500 Overing v. Russell 38 How. 151 510 Owen V. Hudson River R. R. Co 35 N. Y. 516 338 Painton v. Northern Cent. Ry. Co 83 N. Y. 7 224 Pabner v. Davis 28 N. Y. 243 326 Palmer v. De Witt , 43 How. 466 415 Palmer v. Haight 3 Barb. 210 191 Palmer v. Mulligan 3 Caines, 307 507 Palmer v. Palmer 13 How. 363 258, 305 Palmer v. Palmer 39 How. 390 473 Palmer v. People 19 Hun, 373 185 Palmer v. Phojnix Ins. Co 33 Hun, 334 2 Pardee v. Schenck 11 How. 500 398, 399 Park V. Carnley 7 How. 355 41 Park Bank v. Tilton 15 Abb. 884 500 Parker v. Baxter 86 N. Y. 586 391 Parker V. Harrison 10 Jones & Sp. 150 478 Parker V. Laney 58 N. Y, 469 379 Parker V. Link 36 How. 875 496 Parker V. Snell 10 Wend. 577 30 Table of Oabbs. Ixv Page. Parker v. Rensselaer, etc., E. E. Co 16 Barb. 315 215 Paimenter v. Roth 9 Abb. (N. S.) 385 519, 537 Parrott v. Sawyer 26 Hun, 466 419 Parsball V. Klinck 43 Barb. 203 509 Parsons v. Suydam 3 E. D. Smith, 276 197 Partridge V. Norton 9 Hun, 583 232 Patcliin V. Sands 10 Wend. 579 76, 79 PatcHn V. Astor Mut. Ins. Co 13 N. Y. 268 190 Patten V. Hazewell 34 Barb. 421 153 Patterson v. Graves 11 How. 91 280 Patterson v. Patterson 1 Rob. 184 315 Patterson v. Stettaner 7 Jones & Sp. 413 17, 73 Pattison v. Bacon 12 Abb. 143 540 Pattison v. Hull 9 Cow. 747 383 Paul V. Parshall 14 Abb. (N. S.) 138 13, 65 ■^R^R^Co"' ^^^ ^°''^ *^.^''.*'.^.^.".'^:[ 19 We-^k. Dig. 73 490, 491 Payn v. Grant 33 Hun, 134 347 Paynev.Hodge 7 Hun, 612 182, 185 Payne v. Troy & Boston R. R. Co 83 N. Y. 572 333 Payne V. Young 8 N. Y. 158 519 Peabody v. Washington Co. Mut. Ins. Co. 20 Barb. 339 140 Peake v. Bell 7 Hun, 454 220 Peck V. Coler 20 Hun, 534 516 Peckv. Hiler 30 Barb. 655 490, 508 Peck V. Lake 3 Lans. 136 186 Peck V. New York & New Jersey R'y Co. 85 N. Y. 346 453 Peck V. New York Cent. &H. R. R. R. Co. 8 Hun, 386 503, 503 Peck V. Parker , 15 Week. Dig. 143 47 Peckv. Richmond 3 E. D. Smith, 380 179 Peck V. Valentine 94 N. Y. 569 185, 186 Peckv. Yorks 47 Barb. 131 367 Peckv. Yorks 75 N. Y. 431 388 Peet V. Billings 3 Wend. 282 46 Peet V. Cowenhoven 14 Abb. 56 536 Peet V. Warth 1 Bosw. 653 420 Pegram V. Carson 10 Abb. 340 120 Pelt V. Tiffany 11 Hun, 62 20 Pendleton v. Empire Stone Dressing Co.. 19 N. Y. 13 191 Penfield V. James 56 N. Y. 659 410, 413 Penfield v. James 4 Hun, 69 432 Pennell v. Wilson 4 Rob. 610 379, 510 People V. Abbott 19 Wend. 192 196' People V. Adams ' 9 Wend. 464 405 People V. Albany Com. Pleas 19 Wend. 123 371 People V. Albany & Susquehanna R. R. Co. 5 Lans. 25 415 People V. Albany & Susquehanna R. R. Co. 2 Lans. 459 „ 283 People V. Albany & Susquehanna R.R. Co. 57 N. Y. 161 10, 13 People V. Albany & Vermont R. R. Co. . . 15 Hun, 126 268, 269 People V. Assessors 44 Barb. 148 543 I Ixvi Table of Cases. People V. Baker 35 Barb. 105 495 People's Bank V. Mitchell 73 N. Y. 406 453 People V. Bergen 58 N. Y. 404 541 People V. Board of Police 14 Abb. 158 229 People V. Bodine 1 Denio, 281 164, 165 People V. Bowe 81 N. Y. 43 534 Peoplev. Casey 72N. Y. 893 177, 197 People V. Central City Bk 53 Barb. 413 537 People V. Christie 3 Abb. 256 167 Peoplev. Clute 52 N. Y. 576 860 People V. Commissioners 6 Wend. 559 513 People V. Common Council 30 Hun, 636 540 Peoplev. Colborne 20 How. 378 405, 406 People V.Cole 43 N". Y. 508 180, 309 People V. Columbia Com. Pleas 1 Wend. 397 247 Peoplev. Cook 8 N. Y. 67 228, 229, 233 People V. Cooper 57 How. 463 541 Peoplev. Cox 31 Hun, 47 179 Peoplev. Damon 18 Wend. 351 168 People V. Davies . 31 Wend. 309 195, 198 People V. DeCamp 13 Hun, 878 519 People V. Dillon 17 Hun, 1 .. 79 People V. Dutchess & Columbia R. R. Co. 58 N. Y. 153 349 People V. Dyckman 34 How. 322 83 Peoplev. Ellis 15 Wend. 371 317 People V. Evans 40 N. Y. 1 190 People V. Fuller 3 Park. Cr. 16 167 Peoplev. Gay 7 N. Y. 378 198 People V. Genesee Valley Rr R. Co 30 Hun, 565 416, 419 People V. Giroux 29,Hun, 248 415 People V. Haynes 38 How. 369 196 People V. Hays 7 How. 348 45 People V. Harper 1 Edm. Sel. Cas. 180 207 People V. Holbrook 13 Johns. 93 116 Peoplev. Hulse 3 Hill, 309 198 People V. Johnson 1 N". Y. Sup. Ct. (T. & C.) 578 519 People V. Kenny 2 Hun, 346 518 People V. Kelly 35 Barb. 444 533 People V. Kelsey 14 Abb. 373 335 People V. Kinney 93 N. Y. 647 133 People V. Kingsley 8 Hun, 288 41, 43 Peoplev. Lake 12 N. Y. 358 184 People V. Livingston 79 N. Y. 379 339, 240 People V. Long Island R. R. Co 16 How. 106 43 People V. Mallon 3 Lans. 224 164, 166, 167, 168 People V. Marks 10 How. 361 317, 490 People V. Mather 4 Wend. 339 164, 195 People V. McQuire 43 How. 57 76 People V. Moore 15 Wend. 419 179, 193, 197 People V. McQuire 3 Hun, 369 303 Table of Oases. Ixvii Page, People V. Mutual Gas-Liglit Co 74 N. Y. 434 93 People V. National Trust Co 31 Hun, 20 539, 541 People Y. New York Cent. R. R. Co 30 How. 148 417, 418, 419 People V. N. Y. Cent. & H. R. R. R. Co. 28 Hun, 543 530 People V. New York Com. Pleas 8 Cow. 127 217 People V. N. Y. & Staten Island Ferry Co. 68 N. Y. 71 415 People V. Nichols 58 How. 200 513, 519 People V. Northern R. R. Co 53 Barb. 98 ; 42 N. Y. 217 35 People V. Northern R. R. Co 42 N. Y. 217 513 People V. Olcott 2 Johns. Cas. 307 217 People V. Oyer & Term, of N. Y 83 N. Y. 436 175,179, 180 People V. Parish 4 Denio, 153 207, 500 People V. Rathbun 21 Wend. 509 106 People Y. Rector 19 Wend. 569 195, 198 People V. Rensselaer Com. Pleas 6 Wend. 543 521 People V. Rockaway Beach Imp. Co. .... 28 Hun, 356 416 People V. SafEord 5 Denio, 113 197 People V. Sanders 3 Hun, 16 206 People V. SherifE of New York 29 Barb. 622 83 People Y. Sturtevant 9 N. Y. 263 538 People V. Superior Court of New York, 5 Wend. 114 ; 10 id. 285 507, 508 People V. Supervisors of Niagara Co. 50 How. 353 406 People V. Supervisors of Ulster Co 34 N. Y. 268 138 People V. Sutherland 81 N. Y. 1 521 People V. Vermilyea 7 Cow. 108 164 People V. Vermilyea 7 Cow. 369 154, 155, 156, 157 People V. Vilas 3 Abb. (N. S.) 252 228 People V. Ware 29 Hun, 473 191 People V. Webb 1 Hill, 179 43 Peoplev. Wiley 3 Hill, 195 501 People V. Wright 5 How. 23 43, 46 Percy v. Seward 6 Abb. 326 49, 50 Perkins v. Hinman 19 Johns. 237 34, 35 Perkins V. Mead 22 Hun, 476 515 Perkins v. Taylor 19 Abb. 146 287 Perrigo V. Dowdall 35 Hun, 334 390 Perine v. Hotchkiss 2 Lans. 416 291 Perry v. Livingston 6 How. 404 368, 398, 403 Perry v. Rollins 56 How. 242 20 Peyserv. Wendt 87 N. Y. 322 266, 269 Peyser V. Wendt 84 N. Y. 642 133 Phelps V. Piatt 54 Barb. 557 118, 119 Phelps V. Vischer 50 N. Y. 69 290 Phelps V. Wasson 3 How. 136 543 Phelps V. Wood 46 How. 1 356, 383 Philadelphia & Trenton R. R, Co. v. 1 ^^ Peters 448 178 Stimpson ) ' Philbin v. Patrick 3 Abb. Ct. App. 605 185 Phillipv. GaUant , 63 N, Y. 256 291 Ixviii Tablb of Cases. Page. Phillips V. Melville 10 Hun, 211 471 Phillipsv. Rensselaer & S. R. R. Co.... 49 N. Y. 177 223 Philips V. Suydam 6 Abb. (N. S.)389 138 Phillips V. Wheeler 2 Hun, 603; 67 N. Y. 104 525 Phinney v. Broschell - 80 N. Y. 544; 19 Hun, 116 532 Phipps V. Carman 23 Hun, 150 289 Phipps V. Carman 26 Hun, 518 35 Phipps V. Van Cott 15 How. 110 145, 365 Phoenix v. Dupuy 2 Abb. N. C. 146 91 Phoenix Bank v. Donnell 40 N. Y. 410 141 Phoenix V. Baldwin 14 Wend. 62 , 504 Pickard V. Collins 23 Barb. 444 193 Pierce v. Brown 8 Jones & Sp. 398 367 Pierce v. Pierce 38 Mich. 412 244 Pierrepont v. Lovelass 4 Hun, 681 426 Piersonv. Freeman 77 N. Y. 589 520 Pierson v. McCurdy 61 How. 134 139 Pike V. Nash 16 How. 53 421, 447 Pinder v. Stoothoff 7 Abb. (N. S.) 433 411 Pinkney V. Childs 7 Bosw. 660 61 Pitt V. Davison 37 Barb. 97 541 Pitney v. Glens Falls Ins. Co 61 Barb. 335 206 Place V. Butternutts Woolen & Cotton | gg ^^^ ^^^ g g ^qo Manuf. Co ) ' ' Place V. Chesebrough 4 Hun, 577; 63 N. Y. 315 18, 72 Place V. Minster 65 N. Y. 89 212, 215 Piatt V. Monroe 34 Barb. 291 507 Piatt V. Piatt 9 Abb. (N. S.) 110 123 Platner v. Lehman 26 Hun, 374 372 Platnerv. Platner 78 N. Y. 90 . . 173, 200, 201, 206, 208, 237 Plato V. Kelly 16 Abb. 188 179 Plato V. Reynolds 27 N. Y. 586 191 Plumb V. Whipples 7 How. 411 126 Plunkett V. Appleton 9 Jones & Sp. 159 242, 509 Poillon V. Cudlipp 50 How. 366 412 Pollak V. Gregory 9 Bosw. 116 447 Pollock V. Pollock 71N. Y. 137 197,281 Pomeroy v. Hulin 7 How. 161 61, 400 Pond V. Hudson R. E. R. Co 17 How. 543 42 Pontiusv. People 82 N. Y. 339 204, 206, 208 Poole V. Kermit 59 N. Y. 554 232 Pool V. SaflEord 10 Hun, 497 535 Popev.Peralt 22 Hun, 468 i 803 Porter v. Havens 37 Barb. 343 229 Porter v. Mount 45 Barb. 422 241 Porter v. Willett 14 Abb. 319 360, 369 Postv. Hathorn 53 N. Y. 147 487 Post V. Jenkins . , . . 2 How. 33 542 Postv.Mason 91 N. Y. 539 498 Table of Cases. Ixix Page. Post V. New York Cent. R. E. Co 13 How. 553 60 Post T. Wright 1 Caines, 111 155 Potter V. Carpenter 71 N. Y. 74 395 Potter V. Carpenter 56 How. 89 435 Potter V. Davison 8 Abb. 43 150, 153 Potter V. Farrington 34 Hun, 551 415 Potter V. Thompson 23 Barb. 87 313 Poucherv. Livingston 2 Wend. 396 76, 79 Powell V. Jones. 43 Barb. 34 336, 507, 508, 509 Powell V. Rust.*. 8 Barb. 567 358 Powell V. Sonnett 8 Bing. 381 317 Powell V. Waldron 89 N. Y. 328 10 Power V. Village of Athens 19 Hun, 165 410, 518 Powers V. Conroy 47 How. 84 357 Powers V. Rome,Watertown,etc.,R.R.Co. 3 Hun, 385 5 Powers V. Wolcott 1,3 How. 565 418, 414 Pratt V. AUen 19 How. 450 6, 365 Pratt V. Hull 13 Johns. 334 218 Pratt V. Ogden 34 N. Y. 20 238 Pratt V. Ramsdell 16 How. 59... 57, 379 Pratt V. Stiles 9 Abb. 150 305, 879 Pratt V. Stiles 17 How. 311 356 Premo v. Smith 2 Sweeny, 467 86 Preston v. Morrow 66 N. Y. 453 16, 73 Price V. Brown 10 Abb. N. C. 67 139 Price V. Fort Edward Water- works Co. . . 16 How. 51 45 Price V. Keyes 1 Hun, 177 487 Priebe v. Kellogg Bridge Co 77 N. Y. 597 238 Prindle v. Caruthers 15 N. Y. 425 188 Pringle V. Huse 1 Cow. 439 163,167 Produce Bank of N. Y. v. Morton 8 Jones & Sp. 328 305, 488 Provost V. Farrell 13 Hun, 303 146, 395 Provost V. Provost 70 N. Y. 141 379 Pugsley V. Van Allen 8 Johns. 852 .. - 158, 534 Pulver V. Hiserodt 3 How. 49 154, 155 Pumpelly v. Village of Owego 45 How. 219 467 Purchase v. Jackson 14 How. 230 543 Purchase v. New York Ex. Bk 10 Bosw. 564 233 Purchase v, Matteson 35 N. Y. 311 283, 338 Q. Quackenbush v. Johnson 55 How. 94 289 Queen's Case 3 Brod. & Bing. 386 193 Quin V. Bowe 11 Abb. N. C. 115 370 Quinby v. Strauss 90 N. Y. 664 201 Quincey v. Young 53 N. Y. 504 295 Quincey v. Young 4 Daly, 44 279, 280 Quinlan v. City of Utica 11 Hun, 317 ; 74 N. Y. 603. . . . 353, 377 Quinn V.Lloyd 41 N. Y. 349 4,305,306 Ixx Table of Cases. Page, Quinn V. Lloyd 7 Bob. 157 69 Quinn V. Lloyd 1 Sweeny, 253 508 Qninn v. Van Pelt 12 Hun, 633 80, 81, 44 E. Eacev. Gilbert 32 Hun, 360 434 Eallv. Buckhout 2 Civ. Pro. R. 442 30 Eandall v. Kingsland 53 How. 512 19 Randall V. Von Ellert 4 Abb. N. C. 86; 13 Hun, 577 349 Randolph v. Foster 3 E. D. Smith, 648 408 Eanney v. Russell 3 Duer, 689 60 Ransom v. Wetmore 89 Barb. 104 215 Eapelyev. Prince 4 Hill, 119 217 Rapbelesky v. Lynch 2 Jones & Sp. 31 489 Rathbone v. Harmau 4 Wend. 208 47 Rathbonev. Hooney 58 N. Y. 463 349 Rathbonev. McConnell 31 N. Y. 466 357, 359 Rathbone v. McConnell 30 Barb. 811 356 Rathbun r. Ingersoll 2 Jones & Sp. 311 99, 100, 101, 102 Rathbun V. Ross 46 Barb. 127 196 Eaux V. Brand 90 N. Y. 309 185 Ray V. Connor 3 Edw. 478 540 Ray V. Oliver 6 Paige, 489 311 Raymond v. Bearnard 12 Johns. 274 373 Raymond V. Eedfield 2 Edw. Ch. 196 282 Raymond V. Richmond 88 N- Y. 671 239 Raymond v. TrafEarn 12 Abb. 52 4 Eaynor v. Hoagland 7 Jones & Sp. 11 227 Raynor V. Raynor 94 N. Y. 248. 449 Eead v. Lozin 31 Hun, 386 16, 17. 21 Eeade v. Waterhouse 53 N. Y. 587 887, 888 Realv. People 42 N. Y. 270 177, 197 Rector, etc., v. Mack 93 N. Y. 488 849 Reed V. Mayor 31 Hun, 310 385 Reed V. New York Cent. R. R. Co 45 N. Y. 574 199 Reeder V. Sayer 70 N. Y. 180 318, 226 Reese v. Stadler 54 How. 492 507 Regan v. Priest 3 Denio, 168 150 Regina v. Vodden 22 Law & Eq. 596 246 Reich V. Mayor 17 Week. Dig. 140 235 Reichmann v. Manhattan Co 36 Hun, 483 93 Remsen t- Isaacs 1 Caines, 32 513, 513 Rensselaer & S. R. R. Co. v. Davis 55 N. Y. 145 410 Requa v. City of Rochester 45 N, Y. 129 340 Rex V. Ramsden 2 Carr. & P. 603 186 Rex V. Stimpson 2 Carr. & P. 415 173 Rexford v. Marquis 7 Lans. 349 11, 12, 65 Eeynolds v. Champlain Transp. Co 9 How. 7 243, 509 Eeynolds v. Freeman 4 Sandf. 702 513 Table off Cases. Ixxi Page. Eeynolds v. Moore 9 Wend. 35 406 Reynolds v. N. T. Cent. & H. R. R. R. Co. 58 N. Y. 248 231, 233 Reynolds v. Robinson 64 N. Y. 589 183 Rhinebeck & Con. R. R. Co., Matter of . . 8 Hun, 34 ; 67 N. Y. 343 536, 537 Ricev. CMlds 38 Hun, 303 355, 365 Ricev. EUe 55 N. Y. 518 3, 513 Ricev. EUe 65 Barb. 185 524, 535 Rice V. O'Connor 10 Abb. 362 140 Eiceman v. Havemeyer 84 N. Y. 647 , 333 Ricli V. Husson 1 Duer, 617 356 RicliT. Ricb 16 Wend. 663 229 Rickardv. Bdick 17 Barb. 260 139 Richards V. Allen 11 N. Y. Leg. Obs. 159 286 Richards v. Bloom 5 Hun, 183 388 Richards v. Richards 2 Abb. N. C. 93 434 Richardson v. Northrup 66 Barb. 85 177, 194 Richardson V. White 27 How. 155 34 Richmond V. Cowles 2 Hill, 359 40 Richmond v. Hamilton 9 Abb. 71, note 387 Rickarts v. Swetzer 3 How. 413 40 Riddle v. Cram 8 Abb. N. C. 117, note 93 Rider v. Powell 38 N. Y. 310 290, 291 Riggsv. Waydell 56 How. 247; 17 Hun, 515 61 Riggs V. Pursell 74 N, Y. 370 539, 540 Riley v. Hulbert 13 Week. Dig. 101 409 Rindgev. Baker 57 N. Y. 309 13 Riper v. Poppenhausen 43 N. Y, 68 364, 380 Ripler v. Lodge. 16 Serg. & R. 214 165 Ripley v. Benedict 4 Cow. 19 35 Risley v. Wightman 13 Hun, 163 310 Ritchie v. Garrison 10 Abb. 346 140 Ritter v. Phillips . . 3 Jones & Sp. 388 504 Robbv. Hackley 23 Wend. 50 199 Robbinsv. Gould 1 Abb. N. C. 133 411 Robers V.Hughes 7 M. & W. 399 247 Roberts v. FaiUs 1 Cow. 338 343, 344 Roberts v. Johnson 5 Jones & Sp. 157 ; 58 N.Y. 613. 307, 211 Roberts v. Morrison 7 How. 396 6 Roberts v. White 7 Jones & Sp. 272 479 Robertson V. Russell 20 Hun, 243 89 Robertson v. Schellhaas 62 How. 489 133 Robinson v. Brennan 90 N. Y. 208 314 Robinson v. Marchant 7 Q. B. 918 4 Robinson v. Merritt 1 How. 165 44 Robitzeckv. Hect 3 Civ. Pro. R. 156 431 Robson V. N. Y. Cent., etc., R. R. Co... 21 Hun, 387 485 Roby V. Hallock 5 Abb. N. C. 86 11 Rochester City Bank v. Rapelye 12 How. 26 6 Rocke V. Meiner 3 Jones & Sp. 158. . . 179 Ixxii Table of Cases. Page. Rockwell V. Brown 36 N. T. 207 191 Roe V. Roe 14 Hun, 612 298 Roederv. Onusby 33 How. 370 139 Rogers v. Arthur 21 Wend 598 216 Rogers v. Beard 30 How. 98 501 Rogers V. Beard 20 How. 283 379 Rogers v. Garrison 2 Caines, 379 155 Rogers v. Moulthrop 13 Wend. 374 509 Rogers v. Rogers 7 Wend. 514 . 100 Rogers V. Toole 11 Paige, 313 . 539 Rogers v. Van Hoesen 13 Johns. 330 116 Rogers V. Wheeler 53 N. T. 263 395 Rogers T. Wing 5 How. 50 833 Romartze v. East River Nat. Bank 3 Sweeny, 83 180 Romertze v. East River Nat. Bank 49 N. T. 577 189, 193 Romeyn v. King 2 How. 130 46 Ronalds v. Mechanics' Nat. Bank 5 Jones & Sp. 208 19, 75 RonkendorfE v. Taylor 4 Peters, 849 311 Rooney v. Lennon 13 Week. Dig. 101 364 Roosa V. Saugerties and Woodstock ) ^ „ tt„„ omr ooq Turnpike Road Co \ 1^^°^- ^^^ ^«^ Roosa V. Smith 17 Hun, 138 299 Roosevelt V. Bull's Head Bank 45 Barb. 579 56 Roosevelt v. Dean 3 Caines, 105 , 530 Rootv.Brown 4 Hun, 797 191 Root V. Sherwood 6 Johns. 68 345, 247, 348 Rosa V. Jenkins 31 Hun, 384 383 Rossv. Beecher 3 How. 157 71 Ross V. Bridge ". . 34 How. 163 61 Rossv. Campbell 19 Hun, 615 303 Rossv. Colby 3 Hun, 546 220 Rossv. Combes 5 Jones & Sp. 389 18 Rossv. Mather 51 N. T. 108 220 Ross V. Mayor of N. T 32 How. 164 17 Ross V. Ross 31 Hun, 140 461 Rossv. Terry 63 N. Y. 613 221 Rossner V. N. Y. Museum Association .. . 9 Week. Dig. 563 121, 124 Rothv. Meads 30 How. 287 423 Rothery V. N. Y. Rubber Co 90 N. Y. 30; 24 Hun, 172 415, 426 Rouse V. Lewis 3 Keyes, 352 238 Rouse V. Whited 25 N. Y. 170 ,. 181 Row V. Sherwood 6 Johns. 109 405 Rowe V. Comley 22 Daily Reg., No. 148 235 Rowe V. Stevens 44 How. 10 220 Rowell V. Giles 53 How. 244 20 Roy V. Harriott 30 Hun, 77 88, 90 Roy V. Targee 7 Wend. 859 303 Royce V. Jones 33 Hun, 453 367 Royce V. Watrous 7 Daly, 87 339,231 Table of Cases. Ixxiii Page. Ruclunan v. Ruckman , 58 How. 278 473 Eudd V. Davis 3 Hill, 387; 7 id. 539 219, 224 Rugeu V. Collins .' 8 Hun, 384 366 Buggies V. Fogg 7 How. 334 63 Ruggles V. Hall 14 Johns. 112 506 Euloff V. People 45 N. Y. 213 237 Bundle V. Allison 34 N. Y. 180 381, 383, 499 Bushman v. Hall 13 Abb. 420 338 Buss V. Campbell 1 Civ. Pro. B. 64 89 Eussell V. Burton 66 Barb. 589 291, 293 Bussell V. Hudson River R. B. Co 17 N. Y. 134 185 Eussell V. Meacham 16 How. 193 53 Eussell V. St. Nicholas Fire Ins. Co 51 N. Y. 643 197 Bust V. Eckler 41 N. Y. 448 113 Rust V. Hauselt 14 Jones & Sp. 38 .146, 395, 430 Butty V. Person 12 Abb. N. C. 353 63, 64 Byall V. Kennedy 8 Jones & Sp. 347 330 Byan v. Atlantic Mut. Ins. Co 50 How. 321 72 Byan V. People 19 Hun, 186; 79 N. T. 593 178 Byan v. Wavle 4 Hun, 804 493 Byers, Matter of 73 N. Y. 1 ; 10 Hun, 93 26 Eyle V. Falk 60 How, 516 445 S. Sabin v. Johnson 7 Cow. 421 158, 534 Sackett v. Ball 4 How. 71 414 Sackett V. Spencer 29 Barb. 180 186,229,233 SafEord v. Stevens 2 Wend. 158 218 Sage V. Mosher 17 How. 367 126, 265 St. John V. Skinner 44 How. 198 220 Sails V. Butler 27 How. 133 496 Salisbury v. Scott 6 Johns. 329 73 Salter v. Utica & Black Biver B. B. Co. . 86 N. Y. 401 425 Saltus V. Genin 3 Bosw. 250 215 Sanchez v. People. 18 How. 72. . 197 Sanderson V. Bowen 3 Hun, 153 241 Sandford V. Chase 3 Cow. 381 34 Sands V. Kimbark 27 N. Y. 147 11 Sands V. St. John 36 Barb. 628 4 Sands V. Sands 6 How. 453 414 Sanfordv. Ellithorp , 95 N. Y. 48 203 Saratoga & Wash. R. R. Co. v. McCoy. . 7 How. 190 406 Saratoga & Wash. R. R. Co. v. McCoy. . 9 How. 339 ,416, 418 Sargeant v. ■ 5 Cow. 106 247 Sargent V. State 11 Ohio, 472 245 Savage v. Allen 3 N. Y. Sup. Ct. (T. & C.) 474 411 Savage v. Relyea 3 How. 276. . .74, 86, 535, 536, 538, 540 Saylesv. Sims 73 iST. Y. 551 333 Sayre v. Townsends 15 Wend. 647 501 J Ixxiv Table of Oases. Page. Sohadle V. Chase 16 How. 413 544 Sclianck v. Conover 56 How. 437 3 Schappner V. Second Ave. R. R. Co 55 Barb. 497 241 Scheider v. Corby 15 Hun, 493 503 Schell V. Plumb 46 How. 11 ; 55 N. Y. 592 190, 192 Schenectady, etc., Plankr.Co.v. Thatcher 11 N. Y. 102 224 Schepmoes v. Bousson 1 Abb. N. C. 481. 89, 91 Schermerhorn v. Schermerhorn 5 Wend. 513 512 Schermerhorn v. Wood 4 Daly, 158 21 Scherpf v. Szadeczky 1 Abb. 366 502 Scheu V. Lehning 31 Hun, 183 327 Schile V. Brokhaus 80 N. Y. 614 238 Schnaderbeck V. Worth 8 Abb. 37 4 Schoonmaker v. Wolford 20 Hun, 166 498 Schroeter v. Schroeter 23 Hun, 230 282, 461 Schultzev. Rodewald 1 Abb. N. C. 365 11, 539, 540 Schultz V. Third Ave. R. R. Co 89 N. Y. 242 177, 193, 194 Schultz V. Third Ave. R. E. Co 15 Jones & Sp. 285 217, 504, 508 Schultz V. Whitney 9 Abb. 71 431 Schuyler v. Smith 51 N. Y. 309 264 Schwartz v. Po'keepsie Mut. Fire Ins. Co . 10 How. 93 544 Schwerin v. McKie , 5 Rob. 404 238 Schwinger v. Raymond 83 N. Y. 192 291 Scofield V. Whitelegge 49 N. Y. 259 169 Scottv. Shaw 13 Johns. 378 445 Scott V. Williams 23 How. 393 303 Scudder v. Gori 3 Rob. 629 . 394 Scudderv. Snow 29 How. 95 69, 70, 74, 533, 536 Sears v. Conover 3 Keyes, 113 503 Seaver v. Hodgkin 63 How. 128 140 Second Nat. Bank of Utica v. Wells 53 How. 242 141 Security Fire Ins. Co. v. Martin 15 Abb. 479 318, 319 Seeley v. Chittenden 10 Barb. 303 513 Seeley v. Engell 13 N. Y. 543 201 Seely v. New York Cent. & H. R. R. R. Co. 25 Hun, 280 487 Seeman v. Reiche 16 Week. Dig. 561 533 Selden v. Christophers 1 Abb. 273 541 Selover v. Forbes 33 How. 477 515 Selover v. Wisner 37 How. 176 403 Seneca Nation of Indians v. Hawley . ... 32 Hun, 288 146 Sermont v. Baetjer 49 Barb. 362 380, 391 Seward v. Jackson 8 Cow. 406 249 Seymour's Executors v. Strong 19 Wend. 98 100 Seymour v. Billings 12 Wend. 285 869 Seymour v. Fellows 77 N. Y. 178 184 Seymour v. McKinstry 13 Hun, 284 65 Shanks v. Rae 19 How. 340 399 Shannon v. Brower 2 Abb. 377 400, 401 Sharp V. Hutchinson 16 Jones & Sp. 101 94 Table of Cases. Ixxv Page. Sharp V. Mayor, etc., of New York 18 Hove. 313 19 Sharpe v. Freeman 45 N. Y. 803 367 Shaver v. Brainerd 29 Barb. 25 269 Shaw V. Ayres 4 Cow. 53 72 Shaw V. Cock 12 Hun, 173; 78 N. Y. 194 210 Shaw Y. Smith 3 Keyes, 316 202 Shaw V. Van Eensselaer 60 How. 143 90 Sheahan v. Shanahan 5 Hun, 461 221 Shear v. Van Dyke 10 Hun, 538 185 Shearman v. Hart 14 Abb. 358 530 Shearman v. Henderson 12 Hun, 170 220 Sheely v. Cannon 17 Week. Dig. 159 220 Sheffield v. Roch. & Syracuse R. R. Co. . 21 Barb. 339 180 Sheldon v. Atlantic Fire & Marine Ins. Co. 26 JS". Y. 460 228 Sheldon v. Hudson R. R. R. Co 39 Barb. 336 219 Sheldon v. Stryker 27 How. 387 508 Sheldon v. Wood 6 Duer, 679 397 Sheldon v. Wood 14 How. 18 496 Sheldon v. Wood 3 Bosw. 667 113 Shelp v. Morrison 13 Hun, 110 83 Shepard v. Potter 4 Hill, 303 173 Sheridan v. Jackson 73 N- Y. 170 169 Sheridan V. Linden 81 N. Y. 183 431 Sherman V. Gregory... 42 How. 481 39, 40 Sherman V. Hudson River R. R. Co 64 N. Y. 254 281 Sherman v. Parish 53 N. Y. 483 211, 268 Sherman v. Postley 45 Barb. 348 484 Sherman V. Scott 15 Week. Dig. 149 201 Sherman v. Wells 14 How. 533 484 Sherwood v. Mercantile Mut. Ins. Co . . . 5 Hun, 115 229 Shirley v. Vail 38 How. 406 229 Shotwell V. Mali , 38 Barb. 445 226 Shufelt V. Power 13 Hun, 89 403 Shufelt V. Sweet 15 Week. Dig. 1 371 Shufflin V. People 4 Hun, 16 176 ShultsY. Andrews 54 How. 380 74 Shumway , Ex parte 4 Denio, 258 519 Shumway v. Fowler 4 Johns. 425 507 Sibell V. Eemsen 30 Barb. 441 387 Sibley v. Nichols 32 How. 182 434 Sickles V. Gillies 45 How. 94 220 Sickles T. Richardson 14 Hun, 110 417 Sidenbergv. Ely 90 N. Y. 357 280 Silliman v. Clark 2 How. 160 127 Silliman v. Eddy 8 How. 123 544 Silmser v. Redfield 19 Wend. 31 19 Silverman v. Foreman 3 E. D. Smith, 322 172 Simar V. Ganaday 53 N. Y. 398 226 Simmons v. Fairchild 42 Barb. 404. 140 Ixxvi Table of Cases. Page. Simmonson v. Blake 20 How. 4S4 452 Simpson, Matter of 26 Hun, 459 410 Simpson V. Watrus 3 Hill, 619 204 Sims V. Sims 75 N. Y. 466 199 Simson v. Satterlee 64 N. Y. 657 143 Sinclair t. Neill 1 Hun, 80 ~. 202 Sinclairv. Stephenson 1 Carr. & P. 582 186 Sinclair V. Tallmadge 35 Barb. 602 292 Sindram V. People 88 N. Y. 196 236 Sipperly v. Warner 9 How. 332 403 Sitterly V. Gregg 90 N. Y. 686 191 SixttAv. R.B. Co. V. Gilbert El. R.R. Co 71 N. Y. 430 519 Sizer v. Burt 4 Denio, 426 174 Slater Bank V. Sturdy 15 Abb. 75 368 Slater V. Mead 53 How. 57 244 Slater v. Wilcox 57 Barb. 604 182 Slausonv. Watkins 95 N. Y. 369 389 Sleeper v. Van Middleworth. 4 Denio, 431 196 Sloan V. N. Y. C. R. E. Co 45 N. Y. 125 191 Slocum Y. Barry 38 N. Y. 46 887 Sluyter v. Smith 2 Bosw. 673 462 Small V. Ludlow 1 Hilt. 307 6 Smedis V. Brooklyn &RockawayBeacb) gg jj y ^g „„„ 040 241 R. R. Co j ' Smitk V. Averill 1 Barb. 28 47 Smitb V. Aylesworth 24 How. 33 134 Smitb V. Bowers 3 Civ. Pro. R. 72 374 SmitbT. Brown 1 Duer, 665 151 Smitb V. Brown 3 How. 8 19 Smitb V. Cheetbam , 2 Gaines, 381 513 Smitbv. Coe 29 N. Y. 666 280 Smitb V. Coe 7 Rob. 477.. 533 Smitbv. Cooper 30 Hun, 395 406 Smitb V. Danzig 64 How. 320 2 Smitbv.Davis 29 Hun, 306 520 Smitb V. Dodd 3 E. D. Smitb, 215 535 Smitbv. Evans 1 Abb. N. C. 397 484 Smitbv. Glens Falls Ins. Co 62 N. Y. 85 295 Smitbv. Griffith 3 Hill, 333 209 Smitb V. Kerr 1 Barb. 155 501 Smitbv. Lapbam.... 87 N. Y. 631 498 Smitb V. McDonald 52 How. 117 83 Smitb V. New York Ins. Co 1 Hall, 223 154 Smitb V. Osborn 45 How. 351 505 Smitbv. Patten 9 Abb. (N. S.) 205 385 Smitbv. Randall 67 Barb. 377 354, 385 Smitb V. Ratbbun 75 N. Y. 122 , 266 Smitb V. Ratbbun 13 Hun, 47 214 Smitbv. Roberts,... 91 N. Y. 470 349 Table of Cases. Ixxvii Page. Smith V. Eowley 66 Barb. 503 381 Smith V Sergent 67 Barb. 243 334 Smith V. Shaw 1 Cow. 429 127 Smith V. Smith 1 N. Y. Sup. Ct. (T. & C.) 63 268 » Smith V. Spaulding 30 How. 389 543 Smith Y. Spaulding 3 Rob. 615 , 532 Smith V. Stagg 15 Jones & Sp. 514 315 Smith V. Stickney 17 Barb. 489 199 Smith V. Thomas 3 Scott, 546 4 Snell V. Louciis 12 Barb. 385 373 Snell V. Loucks 12 Barb. 385 66 Snell V. Snell 3 Abb. 436 340 SnifEen v. Koechling 13 Jones & Sp. 61 378 Snow V. Fourth Nat. Bk. of N. Y 7 Rob. 479 143 Snyder v. Beyer 3 E. D. Smith 335, 358 Snyder v. Collins 13 Hun, 383 365 Snyder v. Snyder 36 Hun, 334 385 Sorley v. Brewer 18 How. 509 35 Sotow V. Risenberger 35 How. 164 530 Soule V. Chase 1 Bob. 233 520 South wick V. First Nat. Bk. of Memphis. 84 N.. Y. 420 215, 220 Southwick V. Stevens 10 Johns. 442 503 Sparrman v. Keim 6 Abb. N. C. 353 390 Spatzv. Lyons 55 Barb. 476 497 Spaulding V. Strong 38 N. Y. 9 297 Spear V.Myers 6 Barb. 445 .174, 179, 197 Spencer v. Sampson 1 Cai. 498 76 Sperry V. Miller 16 N. Y. 407 236 SpofEord V. Texas Land Co 9 Jones & Sp. 228 415 Sprague V. Cadwell 12 Barb. 516 191 Spring V. Day 44 How. 390 398, 401, 434 Springsteed v. Lawson 14 Abb. 338 238 Springsteene v. Qillett 30 Hun, 260 351, 449 Sprong V. Snyder 6 How. 11 408, 419 Sproul V. Resolute Fire Ins. Co 1 Lans. 71 491, 504, 507 Squiersv. Abbott 61 N. Y. 530 186 Squires v. Seward 16 How. 478 357, 359 Stackusv. N.Y.C. &H.R. R. R. Co 79 N. Y. 464 323, 234 Stacom T. Moon 13 Week. Dig. 348 41 Stacy V. Graham 14 N. Y. 493 193 Stafford Pavement Co. v. Monheuner. . . 9 Jones & Sp. 184 4 Staigerv. Schultz 3 Keyes, 614 364, 379, 380 Stalkerv. Gaunt 12 N. Y. Leg. Obs. 124 120 Standard Oil Co. v. Amazon Ins. Co 79 N. Y. 506 486 Stanton V. Miller 65 Barb. 58 488 Stape v. People 85 N. Y. 390; 21 Hun, 399 198 Staples V. Fairchild 3 N. Y. 41 519 Starbird v. Barrons 43 N. Y. 300 499 Star Fire Ins. Co. v. Godet 2 Jones & Sp. 359 535 Ixxviii Table of Cases. Page, Starksv. People 5 Denio, 106 177, 194 StarkweatliBV v. Carswell 1 Wend. 77 153 Starkweather v. Quigley 7 Hun, 36 319, 231 Starrv. Cragin 34 Hun, 177 194 State V. Benner 64 Me. 367 175 State V. Benton 3 Dev. & B. 313 166 State V. Engle 13 How. 490 345 Steam Navigation Co. v. Weed 8 How. 49 543 Stearns V. Field 90 N. Y. 640 184, 334 Stebbins V. Brown 65 Barb. 373 73, 398 Stebbinsv. Cowles 30 Hun, .533 30 Steele V. McDonald 4 Civ, Pro. E. 337 363 Steevev. Childs 15 Hun, 511 346 Steiner v. Ainswortli 53 How. 31 399 Steinle v. Bell 13 Abb. (N. S.) 171 311 Stelle V. Palmer 7 Abb. 181 531 Stephens V. Hall 3 Rob. 674 8 Stephens v. People 4 Park. Cr. 396 305 Stephensv. Strong 8 How. 339 , 365 Sternberger v. McQovern 56 N. Y. 13 11 Steuben Co. Bank v. Alberger 75 N. Y. 179 530 Steuben Co. Bank v. Alberger 78 N. Y. 353 530 Stevens V. Brennan 79 N. Y. 354 303 Stevenson v. Buxton 37 Barb. 13 11 Stevens V. Fisher 19 Wend. 181 239 Stevens v. Mayor of New York 84 N. Y. 296. 453 Stevens v. Rogers 25 Hun, 54 196 Stevens. V. Strong 8 How. 389 126 Stevens v. Veriane 3 Lans. 90 57 Steves V. Oswego & S. R. R. Co 18 N. Y. 433 319 Stewart v. Berge 4 Daly, 477 535 Stewart v. Brown 16 Barb. 367 530 Stewart v. Met. Board of Health 33 How. 5 405, 406 Stewart v. Slater 6 Duer, 85 385 Stiles V. Fisher 3 How. 52 543 Stilwell V. Staples 5 Duer, 691 363 Stitt V. Rowley 37 How. 179 403 Stokes V. People 53 N. Y. 164 191, 501 Stone V. Duffy 3 Sandf. 761 420 Stone V. Flower 47 N. Y. 566 230, 231 Stone V. Frost 6 Lans. 440 500 Stone V. Western Trans. Co 38 N. Y. 240 240 Story V. Brown ,, 4 Paige, 113 306 Story V. Patten 3 Wend. 486 116 Street v. Rothschild 13 Abb. N. C. 383 17 Strittmacher v, Salina, etc. , Plankr'd Co. 34 How. 74 292 Strong V. Blake 46 Barb. 237 56 Strong V. Hardenburgh 25 liow. 438 397, 496 Strong V. N. Y. Laundry Manuf. Co 6 Hun, 538 330 Table ok Casks. Ixxix Page. Strong V. Plainer 5 Cow. 31 523 Strong V. Strong 1 Abb. (N. S.) 286 65 Strutters v. Pearce 51 N. Y. 365 415 Stryker v. Turnbull 3 Gaines, 103 79 Stuart V. La Farge 4 Bosw. 616 494 Stuart V. Simpson 1 Wend. 376 218, 219 Studwell V. Charter Oak Ins. Co 19 Hun, 127 133 Sturgis V. SpoflEord 58 N. Y. 103 374 Sturm V. Atlantic Mut. Ins. Co j « ^^^ ^ «P- %,<;ii- J,,''J,,,- ^l Sturtevant v. Fairman 4 Sandf. 674 535 Stuyvesant v. Browning 1 Jones & Sp. 303 343 Stuyvesant v. Hall 3 Barb. Cli. 151 346 Suit V. Bonuell 33 Wis. 180 177 Sullivan v. Sullivan 9 Jones & Sp. 519 74 Sullivan v. Sullivan 53 How. 453 283 Sumner V. Blair 9 Kans. 351 179 Sun Ass'n v. Tribune Ass'n 13 Jones & Sp. 136 241 Supervisors of Onondaga v. Briggs 3 Denio, 173 353, 356 Supervisors of Saratoga v. Seabury . ... 11 Abb. N. C. 461 138 Sussdorf V. Schmidt 55 N. Y. 319 313 Sutherland v. Tyler 11 How. 251 143 SutlifiE V. Gilbert 8 Ohio, 405 345 246 Sutphen v. Lash 10 Hun, 130 146, 395, 400 Suydam v. Grand St. & No. Riv. R. R. Co. 41 Barb. 375 229 Swartout V. N. Y. Cent. & H. R. R. R. Co. 7 Hun, 571 183 Sweeney v. Sturgis 34 Hun, 163 90, 91 Sweet V. Flannagan 61 How. 337 30 Swift V. Wells 3 How. 79 19 Swinburne v. Stockwell 58 How. 313 4 Taaks v. Schmidt 35 How. 340 405, 423, 430, 431 Tabor v. Van Tassell 86 N. Y. 643 307, 500 Talmadge v. Third Nat. Bank 37 Hun, 61 42 Talmage v. Huntting 39 N. Y. 447 338 Tallman v. Bigelow 10 Wend. 430 530 Talman v. Syracuse, etc., E. R. Co 31 Hun, 397 414 Tammien v. Clause 67 Barb. 430 531 Tanner v. Niles 1 Barb. 560 391 Taylor v. Attrill 31 Hun, 133 41 Taylor v. Betsford 13 Johns. 487 343 Taylor v. Harlow 11 How. 285 505 Taylor v. Ketcham 5 Rob. 507 238, 239, 340 Taylor V. Russell 48 N. Y. 687 379 Taylor V. Vandervoort 9 Wend. 449 34 Tebo V. Baker 16 Hun, 182; 77 N. Y. 33 93 Tell V. Beyer 38 N. Y. 161 3 Ten Broeck v. Reynolds 13 How. 463 34 Ixxx Table of Cases. Page. TenEyck V. Holmes 3 Sandf. Ch. 428 381 Teerpenning V. Corn Ex. Ins. Co 43 N. Y. 379 182 Terry V. Bonesteel 25 N. Y. 422 228 Terry v. Jewett 17 Hun, 395 ; 78 N. Y. 338 223 Thayer V. Holland 63 How. 179 355 Thayer V. Marsh 75 N. Y. 340 236 Thayer Manuf. Co. v. Steinan 58 How. 315 485 Thaule v. Frost 1 Abb. N. C. 398 35 Thaule v. Krekeler 17 Hun, 338 503 Therasson v. Peterson 20 How. 98 214 Thiemv. Madden 27 Hun, 371 367 Thiesselln v. Eossett 3 Abb. (N. S.) 54 ' 288 Thomas v. Chapman 45 Barb. 98 247, 509, 511 Thomas v. Croswell 4 Johns. 491 76 Thomas v. Dickinson 13 N. Y. 364 344 Thomas V. People 67 N. Y. 318 166 Thomas v. Reab 6 Wend. 503 19 Thompson V. Blanchard 4 N. Y. 303 197 Thompson v. Burchell 16 Jones & Sp. 537 34 Thompson T. Burhans 61 N. Y. 53 519, 520 Thompson v. Erie E'y Co 9 Abb. (N. S.) 212. . . .119, 519, 530, 541 Thompson v. Erie B'y Co 45 N. Y. 468 11 Thompson V. Finn 9 Daly, 379 153 Thompson V. Kessel 30 N. Y. 388 310 Thompson v. Lumley 7 Daly, 74 4, 151 Thompson v. Lumley 50 Barb. 105 319 Thompson v. Rumsey 4 Johns. 483 76 Thompsonv. Shepherd 9 Johns. 362 50 Thurber V. Chambers 60 N. Y. 39 484 Thurber v. Chambers 4 Hun, 721 275, 277 Thurber t. Harlem Bridge, etc., R. R. Co. 60 N. Y. 336 223, 233 Thurman v. Mosher 1 Hun, 344 185 Thurston v. Marsh 14 How. 573 57 Thwing V. Thwing 18 How. 458 313 Tibbetts t. Sternberg 66 Barb. 201 186, 187 Tiemeyer v. Turnquist 85 N. Y. 516 303 TifEany v. Lord 40 How. 481 67 Tiffany V. St. John 65 N. Y. 314 224 Tighe V. Pope 16 Hun, 180 310 Tilden V. Gardinier 35 Wend. 663 506 Tillspaughv. Dick 8 How. 33 398, 400 Tindal v. Jones 11 Abb. 358 544 Tinson v. Welch 7 Rob. 393 ; 51 N. Y. 244 503 Tinson v. Welch 51 N. Y. 344 485 Tisdale v. Morgan 7 Hun, 583 316 Tinkey v. Langdon 60 How. 180 543 Todd V. Todd , 3 Hun, 398 330 Toll V. Thomas 15 How. 315 430 Tomlinson v. Borst 30 Barb. 43 189 Table of Oabes. Ixxsi Page. Tbmlinson v. Mayor 23 How. 453 ..'. 279 Tompkins V. Acer 10 How. 309 40 Tompkins V. Ives 36N. Y. 75 63, 373 Tompkinsv. Smith 63 How. 499 584 Tompkinsv. Wadley 3N. T. Sup. Ct. (T. &C:)424 196 Toner V. Mayor 1 Abb. N. C. 303 495 Tooker V. Arnoux... 76 N. Y. 397 169, 213 Tooker V. Gormer 3 Hilt. 71 191, 304 Tooley V. Bacon 70 N. Y. 34 201, 303 Town of Middletown v. Eondout & Os- ) Ao-n ^ -iaa koo' con wegoR. E.Co [ 43 How. 144 537, 530 Town of Pierrepont v. Loveless 4 Hun, 681 81 Town of Rochester V. Davis 13 Abb. (N. S.) 370 537 Townseud V. Bissell 3 Hun, 556 357 Townsend v. Glens Falls Ins. Co 1 Jones & Sp. 130 363, 385, 886 Townsend V. Hendricks 40 How. 143 10, 16, 17, 71 Townsend v. Peyser , 45 How. 311 434 Townsend v. Boss 13 Jones & Sp. 447 444 Tracy V. Altmeyer 46 N. Y. 598 489, 490 Tracy V. Stearns 61 How. 265 20 Tracy V. Suydam 30 Barb. 110 104 Tradesmen's Nat. Bk. v. McPeely 3 Hun, 699 144 Traver V. Eighth Ave. H. E Co 3 Keyes, 497 310, 500 Travis V. Barger 34 Barb. 614 503 Train V. Holland Purchase Co 61 N. Y. 598 338 Tribune Ass'n V. Smith 8 Jones & Sp. 351 156, 158 Trimmerv. Trimmer 13 Hun, 183 488 Trimmer v. Trimmer 90 N. Y. 675 368 Trust V. Person 3 Abb. 84 366 Trustees of East Hampton v. Kirk 68 N. Y. 459 338, 330 Trustees of Penn Yan V. Forbes 8 How. 385 136 Trustees of Penn Yan V. Tuell 9 How. 400 145, 403 Tubbs V. Hall 13 Abb. (N. S.) 337 411 Tuckerman v. Corbin 35 Daily Reg., No. 63 49 Tugman v. Nat'l Steamship Co 76 N. Y. 307 231 Turner v. Honsinger 31 How. 66 63 Turner V. Taylor 3 Daly, 378 17, 19 Turner V. Van Ripper 43 How. 33 357 Tuthillv. Clark 11 Wend. 643 371 Tweed's Case 13 Abb. (N. S.) 371, note 168 Tweed V.Davis 1 Hun, 253 169, 495 Twombly V. Cassidy 83 N. Y. 155 343 Tyler V. Hoornbeck 48 Barb. 197 505,506, 511 Tyng V. Commercial Warehouse Co 58 N. Y. 308 316 Tyngv. U.S. Submarine &Torp. Boat Co. 1 Hun, 161 117 Tyrellv. Lockhart 8 Blackf . 136 346 U. Underbill V. N. Y. & Harlem E. E.Co... 31 Barb. 489 500 K Ixxxii Table of Cases. Page. Ungerv. Forty-second St. & C. R. K. Co. 6 Rob. 337 500 Union Bank V. Mott 13 Abb. 247 418 Union Bank of Sandusky v. Torrey . ... 5 Duer, 626 113 Union Furnace Co. v. Sbepberd .... 3 Hill, 413 531 Union Manuf . Co. v. Byington 1 Hun, 44 185 Union Trust Co. v. Whiton 17 Hun, 593 410 United States v. Barrels of High Wines. 8 Blatclif. 475 181 Utica City Bk. V. Buell 9 Abb. 385 530 Uticalns. Co. v. CadweU 3 Wend. 396 117 Vailv.Eice 5 N. Y. 155 236 Valentine V. McCue 36 Hun, 456 311, 312 Valton V. Nat. Fund Life Assurance Co. 30 N. T. 33 191 Van Allen v. Farmers' Jt. Stock Ins. Co. 10 Hun, 397 337 Van Auken v. Stewart 3 How. 181 44 Van Bentbuysen v. Albany Nortliern ) ^. tLow 70 ')2S R. R. Co ,y ••••-• Van Bergen V. Ackles 31 How. 314 406 VanBuren V. Cockbum 14 Barb. 118 185 Van Buren V. Wells 19 Wend. 303 303 Vandercook v. Cohoes Savings Inst'n. ... 5 Hun, 641 346 Vandervoort v. Columbian Ins. Co 3 Johns. Cas. 137 100, 101 Vandervoort v. Smith 3 Caines, 155 507 VanDykev. McQuade 18 Hun, 376 88 Van Gelder v. Van Gelder 13 Hun, 118 145 VauGelderv. Van Gelder 26 Hun, 356 445 Van Kleek v. Nichols 63 How. 403 37 Van Marter v. Hotchkiss 1 Keyes, 585 18 VauNessv. Bush 14 Abb. 33 191, 192 Van Ness v. Bush 22 How. 481 291 Van Rensselaer v. Jewett 2 N. T. 135 219 Van Rensselaer v. Jewett 6 Hill, 373 19 Van Rensselaer v. Kidd 5 How. 242 418 Van Schaick v. Winue 8 How. 5 535, 544 Van Sohoning V. Mitchell 33 How. 44 360 VanSlyck V. Hyatt 46 N. Y. 259 279, 295 VanSyckles V. Perry 3 Rob. 621 311, 217 Van Valkenburgh v. Van Schaick 8 How. 271 398 Van Vechtin v. Graves 4 Johns. 403 218 Van Vechten v. Hopkins 2 Johns. 373 76 Van Wyck v. Baker 11 Hun, 309 358, 379 VauZandtv. Mut. Benefit Life Ins. Co.. 55 N. Y. 169 182 Varona v. Socarras 8 Abb. 302 195 Vaughn v. Westover 3 Hun, 43 177, 194 Veederv. Baker 83 N. Y. 156 41 Veeder v. Cooley 2 Hun, 74 221 Veeder v. Mudgett 27 Hun, 519 421, 434, 435, 436 Veuce v. Speir 18 How. 168 423 Table of Cases. Ixxxiii Page. Vermilyea, Hx parte 6 Cow. 555 164 Vermiljea V. Palmer 52 N. T. 471 66,373,374, 498 ^r"'r°Co^''*' ^' ^' ^'*' ^•^°'^^^™[ 6Hun,106 38 Vernol v. Vernol 63 N. T. 45 391 Verplant V. Kendall 13 Jones & Sp. 535 17 Vibbard V. Roderick 51 Barb. 616 213 Victory V. Blood 93 N. T. 650 449 Victory Webb, etc. , Manuf . Co. v. Beeclier 55 How. 193 140 Village of Rhinebeck, Matter of 19 Hnn, 346 27 Vilniarv. Scball 8 Jones &S. 67; 61 N.Y. 564. 95, 113, 417 Voorhis v. Prencli 15 Jones & Sp. 364 415 Voorhis v. Voorhis 50 Barb. 119 291 Vosburghv. Thayer 12 Johns. 463 188, 189 Vowles V. Murray 60 How. 159 360 Vrooman y, Jackson 6 Hun, 836 215 w. Wadley, Matter of 39 Hun, 13 24, 525 Waffle V. Dillenbeck 58 N. T. 53 237 Waggonerv. Finch IN. T. Sup. Ct. (T. & C.) 145 267 Wagner V. Jones 77 N. T. 590 204 Wagner V. People 30 Mich. 384 81 Walbridge v. James. 16 Hun, 8 434 Waldheim v. Sichel 1 Hilt. 45 315 Walden v. Davison 11 Wend. 65 117 Walkenshaw V. Perzel 7 Rob. 606 516, 518 Walker V. Dunspaugh 20 N. T. 170 176 Walker V. Brie R'y Co , 63 Barb. 260 503 Walker V. Granite Bank 19 Abb. HI 118, 119, 133 Walker V. Johnson 8 How. 340 61 Walker V. Spencer 13 Jones & Sp. 71 139 Walker V. Russell 16 How. 91 367 Wallace v. American Linen Thread Co. . 16 Hun, 404 13, 63, 373, 374 Wallace y. Bond 4 Hill, 536 46 Wallace v. Taunton St. R. R. Co 119 Mass. 91 179 Walmsley V. Nelson 3 Abb. N. C. 137 544 Walsh V. Kelly 40 N. Y. 556 238, 240 Walsh V. Mead 8 Hun, 387 240 Walsh V. Mat. Ins. Co 2 Rob. 646 76 Walsh V. People 38 N, T. 458 171 Walter V. Bennett 16 N. T. 350 315, 320 Walton V. Walton 32 Barb. 303 139 Wardv. Bailey 33 Me. 316 , 346 Wardv, Craig 87 N. T. 550 379, 397 Wardv. Dewey 13 How. 193 136, 137 Wardv, Forrest 20 How. 465 238 Wardv, James 8 Hun, 536 , 434 Wardy, Kilpatrick 85N. Y. 418... 303 Ixxxiv Table of Cases. Page. Ward V. Plato 33 Hun, 403 10, 11 Wardv.Roy 69 N. Y. 96 389 Ward V. Euckman 33 How. 330 155 Ward V. Warren 15 Hun, 600 373 Ward V. Wasliingtou Ins. Co 6 Bosw. 329 174 Wardv. Woodburn .. 27 Barb. 346 510 Warden v. Eden 2 Johns. Caa. 131 516 Warden V. Hughes 3 Wend. 418.. ,,.,...... 501 Waring V. Cliamberlain 14 Week. Dig. 564 ..^ 30 Warner T. Harvey 5 Wend. 444. , 100 Wamerv. New York Cent. E. E. Co 53 N. Y. 437. ........345, 246, 347 Warner V. New York Cent. E. E.Co.... 44 N. Y. 465 231, 233 Warner V. Western Trans. Co 5 Eob. 490 507, 513 Warner V. Western Transp. Co 3 Eob. 705 , 17 Warren V. Buckley 3 Abb. N. C. 328 .357, 416 Waring V. tl. S. Tel. Co... 4Daly„333, ., 500 Wasbburne v. Herrick 4 How. 15 136 Waterbury V. Westervelt 3 Sandf. 749 401 Waterman V. Waterman 37 How. 36 69, 74 Waterman v. Van Benscboten 13 Johns. 425 353 Waters V. Jenkins 16 Serg. & R. 414 347 Waters v. Shepherd 14 Hun, 323 '287, 289 Watertown Bank & Loan Co. V. Mix 51 N. Y. 558 343, 509 Watson V. Donnelly 18 Barb. 653 219 Watson V. Gardiner 50 N Y. 671 431 Waverly Water-works Co., Matter of. . . 85 N. Y. 478 534 Wavlev. Wavle 9 Hun, 125 503 Wayland V. Tysen 45 N. Y. SSI 11 Wayne Co. Savings Bk. v. Brackett 31 Hun, 434 89, 94 Weaver V. Ely 83 N. Y. 89 415 Webb V. Foster 13 Jones & Sp. 311 21 Weber v. Kingsland 8 Bosw. 415 219, 501 Webber V. N. Y. Cent. & H. E. E. E. Co. -67 N. Y. 587 233 Weberv. N. Y. Cent. & H. E. E. E. Co. 58 N. Y. 451 222 Webster v. Bond 9 Hun, 437 .211, 268, 269 Webster v. Cole 17 Hun, 507 437 Webster v. StockweU 3 Abb. N. C. 115 90 Weed V. Halladay 1 How. 73 46 Weed V. Paine 31 Hun, 10 353, 411, 413, 417 Weeks V. Hart 34 Hun, 181 248 Weeks v. South-wick 13 How. 170 543 Weeks V. Tomes 16 Hun, 349 343 Wehrkamp v. Willett 1 Keyes, 350 195 Weichsel v. Spear 15 Jones & Sp. 223 534 Welby V. Blston 8 M. Gr. & Scott, 143 4 Welch V. Preston 80 Hun, 303 793 Welling V. Judge 40 Barb. 193 239 Welling V. Ryerson 94 N. Y. 98 346 Welling V. Sweet 1 How. 156 40 Wellsv. Cox ,,, IDaly, 615 247 Table (OF Gases. Ixxxv Page. Welsh V. Darragh..., ,53 N. T. 590 17, 30 Wendell v. N, T. Cent & H, R. R. B. Co. .91 N. T. 430 333, 333, 334 Wendell v.. Lewis,...,,. , ,8 Paige, .613 383 Wentwortliv. Wentworth 51 How. 389., ,539,540, 543 West V. American Ex. Bank 44 Barb. 115... 4 Wes.tv. Lynch., 7 Daly, 345 178 West Point Foundry V. Reymert. 45 N. T. 703 14 Westbrooi v. Merritt, ,..,., 1 How. 195 44 Westerloo y. De Witt 36 N. T. 340 391 WeatJake v. St Lawrence Mut. Ins. Co. 14 Barb. 306 183 Weston y. New York El. B. R. Co 10 Jones & Sp. 156 507, 508 WTialen V. Boajd of Superyisois 6 How. 173 363 Wheatony. yooxhis 53 How. 219. 214 Wheeler y. BUlings , 38 N. Y. 363 297 Wheeler y. JFalconer, , 7 Rob. 45 ,. 69, 73 Wheelejy. Lozee,.., 13 How. 446 81, 423, 430, 447 Wheeler V. Ruckmam.... ,.-..... 5 Rob. 702 421, 423, 430, 433 Wheeler T.Buckman...... 51 N. Y. .391 228 Wheeler y. Wright 33 How. 328 389 Wheelock y. Hotchkiss. . . . 18 How. 468 406 Wheelock y. Lee 74N. Y..495 10, 11, 13, 453 Whipple y. WiUiams , 4How. 38 403, 536, 543 Whitakery, Desfosse....... 7 Bosw. 678 18, 31 Whitcomby. Hungerford .., 43 Barb. 177 315 White y. DowBey . 3 La.w Bull. 92 , 89 Whitey. Klinken 16 Abb. 109 484 Whitey. Mnnroe...... 83 Barb. .650 ,. '540, 541 Whitehead y, Kennedy 69 N. Y. 463 503 Whitingy. Mayor.oi JJewYork.. 37 N. Y. 600 144 Whitlock y. Roth , 10 Basb. 78 520 Whitman V. LesUe 54 How. 494 502, 505 Whitman y. Nicoll 16 Abb. son v. Blan- cha'fd, 4 N. Y. 303, 311 ; Coulter v. American Merchant^ Union. Ex. Co., 56 id. 585 ; Parsons v. Suydam, 3 E. D. Smith, 276 ; Williams v. Sargeant, 46 N. Y. 481 ; Bok v. Vincent, 12 Abb. 137 ; Bemis V. Kyle, 5 Abb. [N. S.] 232 ; 1 Sheld. 134 ; Ihmter v. Wet- sell, 84 N. Y. 549), or to new matter drawn out upon the cross- examination of a witness of the adverse party. {Gibhs v. Huyler, 9 Jones & Sp. 190.) It is only evidence offered for the mere pur- pose of impeaching the credibility of the witness which is inadmis- sible when offered by the party calling him. {Bidlard v. Pearsall, 53 N. Y. 230.) Inquiries calculated to elicit the facts, or to show the witness that lie is mistaken and to induce him to correct his evi- dence, cannot be excluded under the general rule simply because they may result unfavorably to his credibility. (Id.) A party by merely cross-examining a witness does not make the witness his own within the meaning of the rule prohibiting a party from impeaching his own witness, unless the cross-examination is extended to new matter. {People v. Moore, 15 Wend. 419. See Mattice v. Allen, 33 Barb. 543 ; SjKar v. Myers, 6 id. 445, 450.) It would seem that where the cross-examination extends to matters not inquired about upon the direct examination the cross-examining 198 , Teial Peactice. Counteracting impeaching evidence. ])art_y so far makes the witness his own, and is thereby prohibited from offering evidence for the sole purpose of impeaching him. {First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. 448.) But this cannot be regarded as authoritatively settled in this State. Counteracting impeaching evidence. — Where a witness has been directly impeached by witnesses who have testified to his bad char- acter or reputation as mentioned on a preceding page (See ante, p. 195) the witness may be sustained by other witnesses who swear to a • knowledge of the general character or reputation of the witness, and that it is good ; or that they are acquainted with the associates of the witness, know his character, and have heard it questioned, and M'ould believe him under oath. {Admns v. Greenwich Ins. Co., 70 N. Y. 166 ; People v. Davis, 21 Wend. 309 ; People v. Rector, 19 id. 569. See Stape v. People, 85 N. Y. 390; reversing 8. C, 21 Hun, 399.) So where extrinsic facts going to impeach the gen- eral character of the witness have been drawn out on cross-examina- tion, evidence of good character may be given in reply. {People v. Hulse, 3 Hill, 309.) Impeaching witnesses who have testified to the bad reputation of another witness may be asked on cross-examination what persons they have heard speak of the witness, but not what such persons said. {Gulerette v. McKinley, 27 Hun, 320.) But where a wit- ness, called to sustain the character of a witness previously impeached, has testified that there were reports unfavorable to the character of the impeached witness circulating in the neighborhood where he re- sides, the party calling the witness may ask on the re-direct exami- nation what those reports were. {Stape v. People, 85 N. Y. 390.) But until the general character of the witness has been assailed by impeaching witnesses or evidence drawn out on cross-examina- tion, evidence of the good character of the witness is inadmissible. {People V. Gay, 7 N. Y. 378 ; Jackso7i v. Etz, 5 Cow. 314; Leonori V. Bishop, 4 Duer, 420; Bracy v. Eihbe, 31 Barb. 273; Colt v. People, 1 Park. Cr. 611 ; Peojjle v. Ilidse, 3 Hill, 309.) The mere fact that the credibility of the witness has been attacked by proof of contradictory statements made by him on other occasions, in re- spect to the same matter, or-by particular facts stated by the witness against himself on his cross-examination, will not authorize the party calling him to prove by other witnesses the general good char- acter of tlio witness, or good character for truth and veracity. (Id.; Impeachment of Witnesses. 199 Counteracting impeacliing evidence. Frost V. McCarger, 29 Barb. 617 ; Hannah v. KoKellip, 49 id. 342. See Adams v. Greenwich Ins. Co., 70 N. Y. 166.) But when on cross- examination the fact has been drawn out that the witness lias been convicted of a crime, or the record of conviction is given in evidence after the witness has testiiied, the witness may then be allowed to prove, by his own testimony, that he was innocent of the crime for whicli he was convicted. {Sims v. Shns, 75 N. T. 466, But see Gardner Y. Bartholomew, 40 Barb, 325.) If an attempt has been made to discredit a witness by showing a bias arising from relationship the party calling the witness may show that the witness is not on friendly terms with him. {Olapp v. Wilson, 5 Denio, 285.) As a general rule, where a witness has been discredited by show- ing that he has made statements out of court inconsistent with his testimony, the testimony of the witness cannot be corroborated by evidence that he has at different times made statements similar to what he has testified- {Smith v. Stickney, 17 Barb. 489 ; RoUb v. Hackley, 23 "Wend. 50 ; Reed v. New York Cent. R. R. Co., 45 JSr. Y. 574, 577; Wray v. Fedderhe, 11 Jones & Sp. 335, 340; Herrick v. Smith, 13 Hun, 446.) But there are exceptions to the rule ; and if the cross-examining party has opened the door to such evidence by questions put to the witness in relation to declarations made by him at any time ( Wray v. Fedderke, 11 Jones & Sp. 340), he may give such declarations upon his re-direct examination ; or if an attempt has been made to discredit the witness on the ground that his testimony was given under the influence of some motive prompting him to make a false or colored statement, then he may be allowed to show in reply that he has made similar decla- rations at a time when the motive imputed to him did not exist. {Herrick v. Smith, 13 Hun, 446 ; Hotchkissy. Germania Fire Ins. Co., 5 id. 90 ; Roll v. Hackley, 23 "Wend. 50.) So where the evi- dence tends to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown in contra- diction that the same account was given hy him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Id.) 200 Trial Practice. Commitment of perjured witness — Objections to admission, etc , of evidence, etc. SECTION XIX. Commitment of Perjured Witness. The Penal Code provides that where it appears probable to a court of record that a person, who has testified before it in an action or proceeding in that court, has committed perjury in unj testimonj^ so given, the court may immediately commit him to prison by an order or process for that purpose, or take a recog- nizance, with sureties, for his appearing and answering to an in- dictment for perjury. (Penal Code, § 102.) Witnesses to es- tablish the pei'jury may be bound over to appear at the proper court to testify before the grand jury, and also upon the trial in case an indictment is found. (Id., § 103.) And if a paper or document produced by either party is deemed by the court, neces- sary to be used in the prosecution for the perjury, the court may detain it and direct its delivery to tlie district attorney. (Id., § 104.) These proceedings, though taken during the trial, form no part of the trial. [Lindsay v. Peojjle, 63 N. Y. 143.) SECTION XX. Objections to the Admission ok Rejection of Evidence, and Exceptions to Rulings Thereon. For the purpose of obtaining a ruling by the trial judge as to the admissibility of evidence offered by a party upon the trial, the adverse party takes an objection to its admission, stating the reasons why it is inadmissible. The objection is or should be taken when the party asks a question calling for an answer which is deemed objectionable, or offers in evidence a document which for any reason should not be received. The office of an objection is to stop an answer to a question put to a witness, or to prevent the receipt of a document in evidence until the court has ruled as to its admissibility. An objection to testimony is unavailing if taken after the evidence has been received. (See Plainer v. Plainer, 78 N. Y. 90.) After the court has decided that the evidence shall be received or excluded, the party prejudiced by the ruling takes an exception thereto. The office of an exception is to point out errors committed by the court during the progress of the trial. {Matthews v. Meyhei^y, 63 N. Y. 656.) The law re- quires a party desiring to review rulings upon a trial, to take ex- ceptions in proper form. This rule is established for the conveu- Objections to the Admission or Rejection of Evidence, etc. 201 Objections to evidence, when and how taken. ience of the courts as well as for the protection of the parties, and the latter cannot, by stipulation, dispense with tiie requirement. (See Brigys v. Waldron, 83 N. Y. 582.) Objections to evidence, when taken. — An objection to the competency of a witness should be taken as soon as the fact of in- competency is discovered, and, if possible, before the examination of the witness is entered upon {Sherman v. Scott, 15 Week. Dig. 149) ; though if the fact of incompetency is disclosed upon exam- ination an objection then taken will be in time. {Seeley v. Engell, 13 N. Y. 542.) This objection may be taken too soon as well as too late. Thus if an objection to the competency of a witness under section 829 of the Code is taken before the witness is sworn, the ob- jection will be overruled, and if the witness afterward gives illegal evidence, to wliich no specific objection is made, the admission of such evidence will not be error. {Hoar v. Hoar, 23 Hun, 33. See Card V. Card, 39 N. Y. 317.) An objection to evidence as incompetent should be taken when the evidence is offered {Miller v. Montgomery, 78 N. Y. 282. See Booth V. Cleveland Rolling Mill Co , 11 Hun, 278) ; and the same rule applies to objections to evidence as immaterial or irrelevant. {Bradner v. Strang, 89 N. Y. 299. See Mosher v. Lawrence, 4 Denio, 419.) The word " relevant," as applied to testimony, must be understood as meaning that it touches upon the issues which the parties have made by their pleadings, so as to assist in getting at the truth of it. Whatever evidence will withstand this test suould not be objected to, unless to admit it would be to override some other formal rule of evidence. (See Plainer v. Plainer, 78 N. Y. 90.) In determining whether evidence is relevant all the issues must be kept in view, as the evidence may be admissible as to one though inadmissible as to another. (Id.) Objections, how taken. — An objection should be specific and point out the precise ground for the exclusion of the testimony, as a gen- eral objection based upon grounds not disclosed will be disregarded on appeal unless it clearly appears that the objection, if properly made, would have been decisive of the case and could not have been obvi- ated, or unless the evidence was in its essential nature incompetent. {Levin V. Russell, 42 N. Y. 251 ; Williams v. Sargeant, 46 id. 481 ; Quinhy v. Strauss, 90 id. 664 ; Tooley v. Bacon, 70 id. 34 ; Daly 26 202 Teial Practice. Objections, how taken. V. Byrne, 77 id. 182 : Tiemeyer v. Turnqxdst, 85 id. 516 ; Mcibhett v. White, 12 id. 4i2; Boss v. Oamplell, 19 Hun, 615, 617; Stevens V. Brennan, 79 N. Y. 254 ; Ward v. Kilpatrick, 85 id. 413 ; Shaw V Smith, 3 Keyes, 316 ; Fountain v. Pettee, 38 N. Y. 184. See Crosby v. Day, 81 id. 242.) But if the objectioa could not have been obviated had the grounds been specifically pointed out, then a general objection is effectual. {Merritt v. Seaman, 6 N. Y. 168 ; McComhie v. Spader, 1 Ilun, 193; Sinclair^. Neill, id. 80, 83; Mulqiieen v. Duffy, 6 id. 299 ; People v. MoGuire, 2 id. 269, 278.) So if evidence clearly incompetent is objected to on that ground, the objection mhII be sufficient. {Collhis v. Itookwood, 64 How. 57.) An objection that a witness is incompetent under section 829 of the Code, without any further statement or explanation, is too general to be effectual. (^Ham v. Van Orden, 84 N^. Y. 257, 271 ; Sanford v. Eilithorp, 95 id. 48, 52.) But an objection to the effect that the witness is incompetent to give testimony on a particu- lar point because it involves a personal communication between the witness, an interested person, and a deceased grantor, is sufficiently specific although it does not refer to the section of the Code on which it is based. (Id.) An objection to evidence as immaterial concedes its competency. ( Ward v. Kilpatrick. 85 N. Y. 413.) And an objection to a deed as irrelevant raises no question as to its authentication. ( Wood v. Weimar, 104 U. S. 786.) An objection that an exemplified copy of a judgment is incoinpetent evidence raises no question as to the form of the certificate and exemplification. (Ross v. Oamphell, 19 Hun, 615.) An objection, though sufficiently specific, if based upon untenable grounds, is unavailable on appeal. ( Ward v. Kilpatrick, 85 N. Y. 413 ; Mead V. Shea, 92 id. 122 ; Briggs v. Wheeler, 16 Hun, 583.) The party objecting to the admission of testimonj'^ must stand or fall by the grounds taken when the ruling was made. (Id.) If a ground of objection is specified which is untenable, and the evidence is ex- cluded, the party taking the objection will stand in a worse position on appeal than he would if the objection w^s general, for, if the ground is specified, the ruling must be sustained upon that ground unless the evidence excluded was in no aspect of the case competent or could not be made so, while, if tlie objection was general, the ruling will be upheld if any ground existed for the exclusion. (Tooley v. Bacon, 70 N. Y. 34.) Evidence may be relevant as to Ob,)ections to the Admission or Eejection of Evidence, etc. 203 Exceptions. one of two defendants and irrelevant as to the other. In such case the objection to the evidence must be talien by the latter only. {BlacJc V. Foster, 28 Barb. 387; 7 Abb. 406.) If objected to by both defendants it is not error to overrule the objection. (Id.) When objection is taken to evidence as irrelevant, and its relevancj'^ is not apparent, the court may call upon the counsel offering it to state the substance of what he expects to prove, and if the counsel declines to make the statement the court may properly decline to receive the evidence. {Roy v. Targee, 7 Wend. 359; Van Buren V. Wells, 19 id. 203 ; Adsit v. Wilson, 7 How. 64.) But ordinarily the com-t will accept the assurance of counsel that the evidence will become material, and will not require a statement of the connecting evidence, especially as good reasons are suggested why such disclosure should not be made. Exceptions. — An exception to the ruling of the court upon the question of the admissibility of evidence must be taken at the time the ruling is made, and must then be reduced to writing by the ex- ceptant or entered in the minutes. (Code of Civ. Pro., § 995.) In practice the stenographer who takes the evidence also takes the objections thereto, and notes the exceptions to rulings thereon, and an exception so noted is usually treated as entered in the minutes of the judge. (See Code of Civ. Pro., § 1007.) The parties sometimes stipulate that an exception shall be noted by the stenographer to the ruling upon each objection taken upon the trial. Tiiis arrangement merely entitles the party to have an exception entered, in the settle- ment of the case to sucli rulings as he desires reviewed. {Briggs v. Waldro?i, 83 N. Y. 582.) An exception should be directed to the precise ruling which the party desires to review, and in case of several rulings more or less connected, to each of such rulings specifically and not to all of them collectively. For example, if the ruling embraces three distinct propo- sitions, the exception should be taken to each separate ]iroposition, for if a single exception is taken to all, and any one of the proposi- tions can be maintained, the exception is not well taken. {Coghlan V. Dinsmore, 1 Abb. Ct. App. 375 ; 35 How. 416; 4 Trans. App. 386 ; Day v. Roth, 18 N. Y. 448. See Ilaggart v. Morgan, 5 id. 422 : Kluender v. Lynch, 2 Abb. Ct. App. 538 ; 4 Keyes, 361 ; Caldioell V. Murphy, 11 N. Y. 416.) 204 Trial Practice. Waiver of objections and exceptiona. Waiver of objections and exceptions. — Where an objection properly and distinctly made to evidence sought to be introduced upon the trial has been overruled by tlie court, an exception has been duly taken to the ruling, and the evidence has been received, the objection need not be repeated to the same class of evidence. The rule laid down by the court should be observed in the further progress of the trial without vexing the court with further useless objections and exceptions. Nothing is waived by pursuing this course. {Church v. Howard, 79 N. Y. 415 ; DilUher v. Home Life Ins. Co., 69 id. 256.) But if, after the objection is made and over- ruled, the question is withdrawn before answer, and is again repeated at a subsequent stage of the examination, and is answered without objection, tlie failure to object to the last question is a waiver of the former objection. ( Wagner v. Jones, 77 N. Y. 590.) An objection to incompetent evidence may be waived by omitting to take an objection thereto when such evidence is ofiered, subject, however, to the qualification that the trial judge may, iu his discre- tion, permit the party, upon sufHcient grounds being shown, to take the objection at a later stage of the trial by a motion to strike out the evidence, as will be noticed in the next section. (See Miller v. Montgomery, 78 N. Y. 282 ; Pontius v. People, 82 id. 339, 347.) A party may also waive an objection to incompetent evidence by ex- amining as to tlie forbidden transactions or conversations iu the first instance, and thus opening the door for the adverse party to continue the inquiry as to the same matters. {Miller v. Montgomery, 78 N. Y. 282.) But if the adverse party draws out the illegal evidence upon a direct examination or upon cross-examination, and an objec- tion is duly taken, it will not be waived by re-examining or cross- examining the witnesses as to the same matter. {Simpson v. Watrus, 3 Hill, 619; DuffY. Lyon, 1 E. D. Smith, 536. See, also, Worrall V. Parmelee, 1 N. Y. 519. But see TooTcer v. Gormer, 2 Hilt. 71 ; Grimm v. Ilamel, id. 434 ; Oakley v. Sears, 2 Rob. 440.) A failure to object to evidence, competent upon any issue made by the plead- ings, is not a waiver of the right to object to the use of such evidence upon an issue not made by the pleadings. {Bryce v. Burr, 67 N. Y. 235 ; Williams v. Mechanics and Traders' Fire Ins Co., 54 id. 577 ; Codd v. Rathhone, 19 id. 37 ; Dewey v. Moyer, 9 Hun, 473, 4S0; Knajjp v. Fowler, 30 id. 512, 516.) An exception may be waived expressly or by implication. It will be waived by implication when the exceptant again offers proof of Motions to Strike Out or Disregard Evidence. 205 Motions to strike out or disregard evidence. a fact excmded by a former ruling, for by his renewed application he elects to submit to the decision of the court, and if that is in his favor and the evidence is received, the exception falls. {Forrest v. Fcn-rest, 6 Duer, 102, 117; Neil v. Thm-n, 88 N. Y. 270, 277. See Orosby v. Day, 81 id. 242.) The rule amounts merely to this, that a ruling rejecting evidence offered, though erroneous at the time it was made, is cured by the admission of the same evidence at a sub- sequent stage of the trial at the instance of the party excepting ; and that, under such circumstances, the erroneous ruling is not a sufficient ground for granting a new trial. But if the party loses the benefit of a witness by the ruling, the waiver is not so clear ; and if the effect of the error is to shift the burden of proof upon the party objecting, and to deprive him of an advantage to which he is entitled, he will not be deemed to have waived his exception merely because, after the adverse ruling, he seeks ineffectually, by the same witnesses, to make a case which will enable him to get in their testimony. An attempt to comply with the ruling of the court will not amount to a waiver of an exception to such ruling. {Niclcerson v. Ruger, 76 N. Y. 279, 283.) A failure to except to an improper ruling admitting illegal evidence is a waiver of an objection to the evidence. SECTION XXI. Motions to Strike Out or Disregard Evidence. As a general rule a party will be deemed to have waived an ob- jection to incompetent evidence by a failure to object to its admis- sion at the time it is offered. If he does not object, the evidence is received, and must be weighed for what it is worth. {Miller v. Montgomery, 78 N. Y. 282, 286.) It has, therefore, been held that where evidence, bearing upon the issues, has been duly taken upon the trial, without objection, and has been received absolutely and unconditionally, the trial judge has no power to strike it out or ex- clude it from the consideration of the jury. {Hall v. Earnest, 36 Barb. 585, 591 ; Linsday v. Peojde, 67 id. 548 ; 5 Hun, 104 ; Ste- phens V. People, 4 Park. 396 ; Filkins v. Baker, 6 Lans. 516 ; Love- ridge V. Hill, 15 Week. Dig. 149.) A party against whom a witness is called and examined, knowing the witness to be incompetent, can- not lie by and speculate on the chances, first learn what the witness testifies, and then when he finds the testimony unsatisfactory, either 206 Teial Peactice. Motions to strike out or disregard evidence. object to the cotnpeteticy of the witness or to the form or substance of the testimony, and have it stricken out. {Qioinn v. Lloyd, 41 JST. Y. 349 ; People v. Sanders, 3 Hun, 16, 19. See Pitney v. Glens Falls Ins. Co., 61 Barb. 335 ; Mercer v. Vose, 8 Jones & Sp. 218.) Such a case differs materially from one where the evidence was ap- parently competent when given, but was discovered to be incompe- tent upon cross-examination or at a subsequent stage of the trial. But an omission to object to testimony when it is offered is not such a concession of its competency as to absolutely preclude the party against whom it has been given from subsequently insisting that it should be withdrawn from the consideration of the jury. {Hamil- ton V. New York Cent. R. R. Co., 50 N. Y. 100.) If an objection to competent evidence is not taken when the evidence is offered, and the omission is shown to have been from mistake or inadvertence, the trial court may permit the party, at any time before the close of the trial, to move to strike it out. {Miller v. Montgomery, 7S N. Y. 282, 286.) This is not an uncommon practice in the trial of eases. But the exclusion of the evidence at a subsequent stage of the trial is wholly in the sound discretion of the trial judge, and mil be exer- cised where it is just that the incompetent evidence should be ex- cluded, and no harm can come to the other party from the delay in making the objection. (Id.) If, however, the objectionable charac- ter of the evidence was as apparent when the evidence was offered as when it was in, the party failing to object takes the risk of the refusal of the court to exclude it. {Pontius v. People, 82 N. Y. 339, 347. See Quinn v. Lloyd, 41 id. 349.) A court of review will not interfere with the fair exercise of the discretion of the trial court in this particular. {Miller v. Montgoviery, 73 N. Y. 2S2.) But an improper exercise of such discretion is a ground for reversal. {Quinn v. Lloyd, 41 N. Y. 349.) A question to a witness may be proper and pertinent, and, therefore, not subject to objection, but the answer may be irrespon- sive and objectionable. An objection to the answer would accom- plish nothing, as, if the objection should be sustained, the answer would be in and form a part of the record. The remedy of the party aggrieved by the evidence is to move that the irresponsive part of the answer be stricken out, or to request the judge to in- struct the jury to disregard it, and, in case of a denial of the motion or request, to except to the ruling. {Plainer v. Plainer, 78 N. Y. 90, 102 ; Farmers'' Rank of Washingian. Co. v. Coioen, 2 Abo. Ct. Motions to Strike OnT or Disregard Evidence. 207 Motions to strike out or disregard evidence. App. 88.) If an objection has been taken to the question, and tlie answer is irresponsive and of doubtful propriety, the examining party should disclaim the answer and decline to receive it (See G'llagan v. Dillon, 76 N. T. 170, 172), or ask the court to strike it out or to direct the jury to disregard it. {Roberts v. Johnson, 5 Jones & Sp. 157 ; 58 N. Y. 613.) But where the answer is respon- sive to the question and is received under objection and exception, the party calling for it has no right to have it afterward stricken out. (Furst V. Second Avenue 12. E. Co., 73 N. Y. 512.) Where evidence tending to prove a material fact has been given and received, the court cannot strike it out or exclude it from the jury on the ground that it is not decisive, or that its weight has been impaired or substantially destroyed on cross-examination. {Linsday v. People, 67 Barb. 548; 5 Hun, 101.) At least, the party against whom evidence is properly received has no absolute right to have it stricken out when its effect has been destroyed by other evidence. His proper course is to protect himself against the effect by a proper charge from the court. {Gawtry v. Doane, 51 N. Y. 81.) Where the trial judge during the progress of the trial becomes doubtful as to the admissibility of evidence received under objec- tion and exception, or provisional!}', he may correct the error into which he has fallen in admitting the evidence, by striking the testi- mony out of his minutes and directing the jury to disregard it. When this is done the exception taken to the erroneous ruling falls witli the testimony. {Linsday v. People, 67 Barb. 518 ; 5 Hun, 104 ; People V. Parish, 4 Denio, 153. But see Erhen v. Lorillard, 19 N. Y. 299 ; Tabor v. Van Tassell, 86 id. 642 ; Mandeville v. Guernsey, 51 Barb. 99 ; 0'' Sullivan v. Roberts, 7 Jones & Sp. 360 ; Newman v. Goddard, 3 Hun, 70 ; 48 How. 363 ; Allen v. James, 7 Daly, 13.) So, if on cross-examination it appears that the witness has not the moral sense requisite to make him a competent witness, the court may, in its discretion, strikeout his testimony or leave it for the jury with proper instructions as to its due weight. {People v. Harper, 1 Edm. Sel. Caa. 180.) A motion to strike out evidence should be carefully limited to the particular evidence improperly admitted. If the motion is too broad so as to include testimony which is competent as well as testimony 208 Trial Practice. Motions to strike out or disregard evidence. which is incompetent, the court may properly deny it. {McCahe v. Brayton, 38 N. Y. 196.) Evidence admitted without objection, or properly admitted under objection, which for any reason should not be considered by the juiy or affect the result, is not necessarily stricken out, but may be re- tained in the discretion of the court, the remedy of the party being to ask the court to instruct the jury to disregard it. {Marks v. King, 64 N. T. 628 ; Gawtry v. Doane, 51 id. 84 ; Pontius y. People, 82 N. Y. 339, 347 ; Plainer v. Plainer, 78 id. 90, 101.) A motion to strike out evidence which, if standing alone, could not properly be received under objection, is sometimes denied upon the notion that other evidence will be given which will connect the evidence in question with the issue and render it material. The evidence is pro- visionally retained. In such case the party moving to strike out the evidence should not rely wholly upon his exception to the decision of the motion in the first instance, but if, when the evidence is all in, the connecting evidence is still unsupplied, he should renew his motion, or ask the court to instruct the jury to disregard the evidence. (Id.; Carr v. Mayor of N. 1\, 11 Jones & Sp. 158.) But if evi- dence is objected to when offered, and the objection is overruled, an exception taken, and the evidence received absolutely and uncondi- tionally, it is superfluous if not disrespectful to ask the court after- ward to strike out such evidence. One valid exception for an error committed by the judge is sufficient to assert and maintain all the rights of the parties ou the question. {Hall v. Earnest, 36 Barb. 585, 591.) All the evidence of a party may be stricken out on motion upon his refusal on cross-examination to answer a question pertinent to the issue and not privileged. {Burnett v. Phalon, 19 How. 530; 11 Abb. 157.) And when the opportunity of cross-examining a witness has been lost by the misconduct of the witness, or the fault or neg- ligence of the party calling him, the direct examination of the wit- ness may be stricken out. {Forrest v. Klssatn, 7 Hill, 463 ; Hewlett V. Wood, 67 N. Y. 394, 397.) And it is now a settled rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify, or other misconduct of the witness, or by any means other than the act of God, the act of the party himself, or some cause to which he assented, the adverse party shall also be deprived of the benefit of the examination in chief. {Sturm, v. AtlatUic Mut. Ins. Co., 63 Yaeiances and Amendments. 209 As to parties. N. Y. 77, 87 ; People v. (Jole, 43 id. 508 ; Smith v. Griffith, 3 Hill, 333.) This rule may be applied to the examination of a witness on commission, or conditionally out of court, when in such case the party desiring the benefit of a cross-exarainatioTi has not been present or represented at the taking of the testimony, and had no opportu- nity to push his cross-examination, or to know of the refusal of the witness to testify, or of his neglect to answer any question, or of other like misconduct. (See Sturm v. Atlantic Mut. his. Co., 63 N. Y. 77, 87 ; ante, p. 113.) SECTION XXII. Variances and Amendments. The framers of the Code, having in view the technical practice which had grown up under the old common-law system, inserted in the act creating the new system of practice a series of provisions in- tended to protect the parties from mere formal errors in their prac- tice, either by pennitting the court to disregard the error or defect, or by allowing an amendment before, upon, or even after trial. These provisions have been substantially re-enacted in the present Code. It provides that " the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allega- tion material to the case, or where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved. And in ever}' stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party." (Code of Civ. Pro., § 723.) Other provisions of a similar character will be noticed hereafter. As to parties. — It will be noticed that section 723 of the Code expressly authorizes the court to amend any pj"ocess, pleading or other proceeding by adding or striking out the name of a person as a party or by correcting a mistake in the name of a party, and that this power is given without any qualification save that the amend- 27 210 Trial Practice. Variances and amendments — Aa to parties. merit must be in the furtlierance of justice and on such terms as the court deems just. It will also be noticed that the power conferred is the same whether exercised upon the trial, or at any other stage of the action befoi-e or after judgment. The power of the court in the one case is as extensive as in the other. But the power of the court to allow an amendment in this respect is not unlimited; and while the section confers full authority for adding or striking out the name of a person or a party or correcting a mistake in such. name, it does not authorize the court to strike out the name of a Dole defendant and insert in lieu thereof the name of other persons as defendants. (^New York State Monitor Milk Pan Association v. Remington Agricultural Works, S9 N". Y. 22 ; Bassett v. Fish, 75 id. 303. See S/iaw v. Cook, 12 Hun, 173 ; 78 JSr. Y. 194 ; Davis v. Mayor, etc., of New York, 1-1 id. 506, 527 ; McGarry v. Board of Supervisors, 7 Rob. 464.) Neither does the section authorize an entire change of persons plaintiff. (See Davis V. Mayor, etc., of New York, 14 N". Y. 506, 528 ; Wright v. Storms, 3 Code Rep. 138 ; Coffing v. Tripp, 1 How. 115.) But where the ac- tion is brought by the proper person under a wrong name or descrip- tion, as where an individual banker sues under a name used by him in his business, importing a corporate character {Bank of Havana v. Magee, 20 N. Y. 355), or where a married woman commences an action under her maiden name {Traver v. Eighth Avenue M. B. Co., 3 Keyes, 497 ; 4 Abb. Ct. App. 422 ; 3 Trans. App. 203 ; 6 Abb. [N. S.J 46), or where an administrator, with the will annexed, sues as executor {Risley v. Wightman, 13 Hun, 163), or where the action is brought against the proper person under a wrong name or description, or where a defendant is sued as administrator instead of administrator with the will annexed {McElwain v. Corning, 12 Abb. 16), or where defendants are sued under their partnership name, the plaintiff supposing them to be a corporation {Newton v. Milleville Manuf. Co., 17 Abb. 318, note), or where the defendants are sued under the firm name, the plaintiff alleging his ignorance of their individual names {Thompson v. Kessel, 30 N. Y. 383), or where a person is sued as an administratrix instead of as an indi- vidual {Tighe v. Pope, 16 Hun, 180), the error may be cured by an amendment, as there is no actual change of parties, but only a change of name or description. The court has power to strike out the name of one of several de- fendants, leaving the action to proceed against the others {Ackley v. Yakiances and Amendments. 211 Inserting an allegation material to the case. Tarbox, 31 N. T. 564 ; Lowe v. Bommell, 5 Daly, 17 ; Angell v. Cooh, 2 ]Sr. T. Sup. Ct. [T. & C] 175 ; Roberts v. Johnson, 5 Jones & Sp. 157 ; 68 JST. Y. 613 ; Bemis v. Bronson, 1 Code E. 27), or to strike out the name of one of several plaintiffs (Lajpha/m v. Bice, 65 N. Y. 472), but not to bi'ing in a new party as defendant by a mere verbal order made on the trial. {Hood v. Hood, 85 N. Y. 561.) Where the objection to the non-joinder of necessary parties has not been waived, and a complete and final judgment cannot be rendered without the presence of other parties, the court should either dismiss the complaint without prejudice to a new action, or the case should be allowed to stand over, on such terms as are equitable, until the plaintiff brings in the necessary parties. (See SJierman v. Parish, 53 N. Y. 48^ ; Newman v. Marvin, 12 Hun, 236 ; Baird v. Poole, 12 E". Y. 495, 608 ; Loeschigk v. Addison, 7 Eob. 506.) The latter procedure, although especially adapted to an action in equity, would seldom be proper in an action at law. (See Webster v. Bond, 9 Hun, 437.) Inserting an allegation material to the case. — The Code expressly authorizes the court, upon the trial of an action, in further- ance of justice, and on such terms as it deems just, to amend a plead- ing hj inserting an allegation material to the case. (See ante, p. 209.) The object of this provision of the Code is to allow a party who has attempted to plead a cause of action or a defense, but has omitted some material averment, to correct the error upon the trial by supply- ing the missing averment. But it does not authorize the court upon the trial to allow a party to amend his pleading by setting up a new cause of action or defense. ( Woodruff v. Dickie, 31 How. 164 ; 5 Rob. 619 ; Ford v. Ford, 35 How. 321 ; 63 Earb. 526 ; Eochstetter V. Isaacs, 44 How. 495 ; 14 Abb. [N". S.] 235, note; JoslynY. Joslyn^ 9 Hun, 388 ; Van Syekles v. Perry, 3 Eob. 621 ; Decker v. Salts- man, 1 Hun, 421 ; Dezengremel v. Dezengremel, 24 id. 454 ; Graves V. Cameron, 9 Daly, 162.) But where a motion is made to dismiss a complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and it appears from an inspection of the pleading that, by reason of the omission of some material averment, it would have been held insufficient on demurrer had a demurrer been interposed, the court may deny the motion, and allow the omitted allegation to be inserted by amendment, if the matter in- serted does not amount to a new cause of action. ( Woolsey v. 213 Teial Peactice. Variance between pleadings and proof. Village of Rondout, 4 Abb. Ct. App. 639 ; 2 Keyes, 603.) Thus, if a defendant in an action of ejectment moves at the opening of the trial to dismiss the complaint upon the ground that it does not con- tain the description of the land which the statute requires (See Code of Civ. Pro., § 1511), the court may, in its discretion, deny the motion, and at a subsequent stage of the case allow the plaintiff to amend by inserting a description conforming to that contained in a deed introduced in evidence. (Olendorf v. Cook, 1 Jja,ns. 37.) The allowance of the amendment in such case is not the subject of excep- tion. (Id.) But if a motion to dismiss the complaint for insufficiency is made at the beginning of the trial, and any doubt as to its suffi- ciency exists in the mind of the plaintiff, he should ask leave to amend ; for if the motion is denied, and the defendant excepts, and no amendment is asked for or made, an error in the ruling will be fatal to a recovery. ( Tooker v. Arnoux, 76 N. Y, 397. See ante, p. 169.) Tariance between pleadings and proof. — A variance between a pleading and the proofs given upon the trial is not a fatal defect under the present system of practice. Variances may be divided into two classes, material and immaterial variances. " A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." (Code of Civ. Pro., § 539.) This is the statutory test by which the materiality of the variance is to be determined. " If a party insists that he has been misled, that fact, and the particulars in which lie has been mis- led, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleadings to be amended upon such terms as it deems just." (Id.) Without proof to the satisfac- tion of the court that the adverse party has been misled, the variance is to be deemed immaterial and do amendment is necessary. {Place V. Minster, 65 K T. 89; GatUn v. Gunter, 11 id. 368; Sussdorf V. Schmidt, 55 id. 319 ; Fowler v. Martin, 1 IST. Y. Sup. Ct. [T. & C.J 377 ; Glaijes v. Hooker, 4 Hun, 231 ; Potter v. Thompson, 22 Barb. 87; ^ewstadtv. Adams, 5 Duer, 43; Hart v. Hudson, 6 id. 294 ; Hauck v. Graighead, 4 Hun, 561.) The Code provides that where the variance is not material, as prescribed in section 539, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. (Code of Yaeiances and Amendments. 213 Variance between pleadings and proof. Civ. Pro., § 540. See Chapman v. Garolin, 3 Bosw. 456 ; Hauck V. Craighead, 4 Hun, 561 ; Knapp v. Roche, 5 Jones & Sp. 395 ; YaUs V. Alden, 41 Barb. 172, 176 ; Hall v. Gould, 13 N. Y. 127 ; Meyer v. Fiegel, 7 Rob. 122 ; 34 How. 431 ; McComber v. Granite Ins. Co., 15 N. Y. 495 ; Bennett v. Judson, 21 id. 238.) In effect, tbe distinction between a material and immaterial variance is, that in case of the former the amendment may be allowed on such terms as the court deems just, while in the case of the latter the variance may be wholly disregarded, or an immediate amendment ordered, without costs. The power of the court to allow an amendment on the trial by conforming the pleadings to the proof is limited only by the provision that the amendment shall not change substantially the claim or defense. (Code of Civ. Pro., § 723 ; Reeder v. Sayer, 70 N. Y. 180, 190.) This power is liberally exercised within this limit. For example, if the plaintiffs, in an action for conversion, sue as tenants in common, and the proof sliows that they are surviv- ing partners, the trial court may allow them to amend by inserting an allegation correctly describing the right or character in which they sue. {Reeder v. Sayer, 70 N". Y. 180.) So a plaintiff may amend his complaint by so increasing the amount for which judg- ment is demanded as to cover any verdict which the jury may render under the proofs. (^Johnson v. Brown, 57 Barb. 118 ; Knapp V. Roohe, 5 Jones & Sp. 895 ; 62 N^. Y. 614 ; Hamilton v. Third Avenue R. R. Co., 3 Jones & Sp. 118.) So a plaintiff who has proved special damages may be allowed to amend his com- plaint by inserting an averment of such damage, {demons v. Davis, 4 Hun, 260.) So a complaint on a promissory note may be amended by inserting a count for goods sold and delivered which formed the consideration of the note. ( Vibbard v. Roderick, 51 Barb. 616.) So a complaint charging the defendant as plaintiff's agent for money had and received may be changed by amend- ment to a complaint against the defendant as principal for work, labor and services performed for him by the plaintiff at his request, where the claim is not changed in substance by the amendment, but only the form of stating it. {Oregon Steamship Co. v. Otis, 27 Hun, 452.) So where a defendant has set up the defense of usury, and on the trial evidence has been given tending to prove a usurious agree- ment differing from the one alleged in several particulars, but not in its entire scope and meaning, and the plaintiff is not misled thereby, the variance will be deemed immaterial and either disre- 214 Teial Practice. Variance between pleadings and proof — Failure of proof. garded or the defendant will be allowed to conform it to the facts. {Glayes v. Hooker, 4 Hun, 231 ; Catlin v. Gunter, 11 N. Y. 368.) It has been intimated that a motion to conform a pleading to the proof cannot be granted where the admission of the evidence has been promptly objected to upon the ground that the evidence did not tend to support the allegation of such pleading. (See Wheaton V. Yoorhis, 53 How. 319.) But the court of last resort did not seem to take this view of the law in a similar case where counsel objected to the evidence as irrelevant and not within the issue. (See Catlin V. Gimter, 11 N. Y. 368, 370 ; reversing S. C.,1 Duer, 253.) The power of the court to allow an amendment is not confined to any particular stage of the trial, nor is it essential to its exercise that the necessity for the proposed amendment should first be made ap- parent by the development of the case. The court is not obliged to wait until the evidence is all in before allowing an amendment to cure a variance, but may permit an amendment to be made at the commencement of the trial conforming the pleadings to the evidence which the party proposes to introduce. {Smith v. Hathbun, 13 Hun, 47 ; Therasson v. Peterson, 20 How. 98.) Thus a plaintiff suing upon a policy of insurance may be allowed, at the opening of the case, to amend his complaint by increasing his demand for judg- ment to the amount fixed by the policy. {Miaghan v. Hartford Fire Ins. Co., 24 Hxm, 58.) So if the action is brought to recover the possession of two or more chattels which are capable of identifi- cation and separation, and the verdict has awarded one or more of the chattels to the plaintiff and the residue to the defendant, the complaint, if necessary, must be amended so as to conform to the verdict. (See Code of Civ. Pro., § 1728.) Where an amendment is allowed upon the trial, it must be actually made if the adverse party requires it. (Ballou v. Parsons, 11 Hun, 602.) But the amended pleading need not be served, uivless such service is made a condition of the allowance. {LaneY. Hay ward, 28 Hun, 683. See Wright v. Delafield, 25 N. Y. 266, 270.) The objection that there is a variance between the pleadings and the proofs mUst be taken at the trial, and cannot be urged for the first time on appeal. {Coates v. First Nat. E'lc Emjporia, 91 N. Y. 20, 31 ; Pitch v. Raihlun, 61 id. 579.) Failure of proof. — Where the allegation to which the proof is directed is unproved, not in some particular or particulars only, but Yaeiances and Amendments. 215 Failure of proof. in its entire scope and meaning, it is not a variance within the mean- ing of the sections of the Code before cited (§§ 539, 540), but a fail- ure of proof. (Code of Civ. Pro., §541.) In such cases the plead- ings cannot be amended at the trial to conform to the proofs. Such a case is presented where the action is based upon a particular con- tract or tort and the proof is of a different contract or tort {Cottrell V. ConTclin, 4 Duer, 45, 52 ; Rerwpstead v. New York Gent. <& H. R. R. R. Co., 28 Barb. 485 ; Parker v. Rensselaer, etc., R. R. Co., 16 id. 315 ; Curtiss v. Marshall, 8 Bosw. 22 ; Waldheim v. Siohel, 1 Hilt. 45 ; Smith v. Stagg, 15 Jones & Sp. 614. See Southwick v. First Nat. Bank of Memphis, 84 N. T. 420, 428 ; Bailey v. Johnson, 1 Daly, 61 ; Place y. Minster, 65 IST. T. 89, 102), or where a tort is alleged and the proof discloses a contract, or vioe versa. {Ransom v. Wetmore, 39 Barb. 104 ; Whitcomb v. Hungerford, 42 id. 177; Saltusr. Genin, 3 Bosw. 250 ; Beards. Yates, 2 Hun, 466 ; 5 JSr. Y. Sup. Ot. [T. & C] 76 ; Moore v. MoKibhin, 33 Barb. 246 ; Nasser v. Gorwin, 36 How. 540 ; Yrooman v. Jackson, 6 Hun, 326 ; Butler v. Zivermore, 52 Barb. 570, 578 ; Walter v. Bennett, 16 N. Y. 250 ; Patterson v. Patterson, 1 Abb. [N. S.] 262 ; 1 Eob. 184 ; Barnes v. Quigley, 59 N. Y. 265.) Thus, if a complaint charges defendants as carriers, and the proof shows that they were forwarders {Henvpstead v. New York Cent. & H. R. R. R. Co., 28 Barb. 485), or charges negligence in not constructing a cattle-guard, and the proof shows a neglect to fence {Parker y. Rensselaer <& Saratoga R. R. Co., 16 Barb. 315), or alleges that the defendant guaranteed a note, and the proof shows that he indorsed a note {Cottrell v. Conklin, 4 Duer, 45), or alleges an agreement between the defendant and a third person, and an assignment of it to the plaintiff, and the proof shows a contract between the plaintiff and the defendant {Curtiss v. Marshall, 8 Bosw. 22), or alleges a breach of an agreement between the defend- ant and a third person to collect a draft and apply the proceeds on a prior draft, and an assignment of the cause of action to the plaintiff, and the proof shows a cause of action held by the plaintiff, as assignee of a firm, to recover moneys paid by the firm on the new draft {South- wick V. First Nat. Bank of Memphis, 84 N. Y. 420), there is a fail- ure of proof and the ease must fail. It is no answer to the objection that the plaintiff has failed to prove the cause of action alleged in his complaint, that the defendant was not probably misled in his defense by the departure. He is not to be deprived of his objec- 216 Tela-l PEAcncE. Motion to compel either party to elect, etc. — Voluntary nonsuit, etc. tion to a recovery by any assumption or speculation that he has not been injured. (Id.) The objection that the cause of action proved is not the cause of action alleged in the complaint, and that the cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial to be available on appeal. (Tyng v. CommerGial Warehouse Co., 58 N. Y. 308 ; Tisdale v. Morgan, 7 Hun, 583, 585 ; Doyle v. Mulren, 7 Abb. [N. S.] 258 ; S. C, 1 Sweeny, 5 17.) The objection may be taken by motion for a non- suit or dismissal of the complaint. SECTION XXIII. Mo'noN TO Compel either Paktt to Elect, etc. "Where an action of ejectment is brought against two or more de- fendants, and it is alleged in the answer of either of them, and shown upon the trial, that he occupies in severalty, or that he and one or more of his co-defendants occupy jointly one or more distinct par- cels, and that one or more other defendants possess other parcels in severalty or jointly, and the plaintiff has omitted to obtain an order severing the action (See ante, p. 54), the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed, and a judgment dismissing the complaint must there- upon be rendered in favor of the other defendants. (Code of Civ. Pro., § 1516. See Dillaye v. Wilson, 43 Barb. 261 ; Rogers v. Arthur, 21 Wend. 598.) Under the Code a defendant may set forth in his answer as many defenses or counter-claims or both as he has, whether they were such as were formerly denominated legal or equitable (Code of Civ. Pro., § 507) ; and although they may be inconsistent, he cannot be com- pelled to elect between them on the trial. {Bruce v. Burr, 67 N. Y. 237.) SECTION XXIY. VOLUNTAET NoNSUIT, OR WITHDRAWING A JlTEOE, ETC. A plaintiff cannot submit to a nonsuit after the cause has been committed to the jury to consider the verdict. (Code of Civ. Pro., § 1182.) But before that time he may submit to a nonsuit, and should do so where, from any reason, such as the failure of evidence or the like, he finds that he will not be able to maintain his Motion foe Nonstjit, Dismissal of Complaint, etc. 217 Withdrawing a juror, etc. — Motion for nonsuit, dismissal of complaint, etc. case, and has a reasonable expectation of being more successful iu a subsequent action. (See Dillon v. Coohcroft, 90 JST. Y. 649 ; Mes- senger V. Fourth Nat. Bank, 48 How. 542 ; 6 Daly, 190.) The cases hold that a party has no right to be surprised by evidence within the issues, and, if he is, he should apply to the court for leave to withdraw a juror, or submit to a nonsuit. (Id.; People v. Marks, 10 How. 2Gl. See Schultz v. Third Avenue R. R. Go., 15 Jones & Sp. 285.) It is well settled that the court, in the exer- cise of a sound discretion, may direct the withdrawal of a juror or discharge of the jury, and postpone the trial upon being satisfied that any real ground of surprise exists, such as the unexpected ab- sence of witnesses who have been in attendance, or that have been kept out of the way ; the sickness of a juror, party or counsel ; or any other accident occasioned by substantial misapprehension or dis- appointment which would render its further progress unjust or un- fair to either party. {Glendening v. Canary, 5 Daly, 489 ; People V. Oloott, 2 Johns. Cas. 307 ; People v. New York Common Pleas, 8 Cow. 127; Peofle v. Ellis, 15 Wend. 371 ; Powell v. Sonnett, 3 Bing. 381 ; Bligh [IS". S.], 352.) If it is made to appear that a wit- ness, who has been examined on the trial, has left the court without leave, and is not present when again wanted, it is within the dis- cretion of the court to suspend the trial until he; can be again brought in ; and, if an application for such relief is refused, the party desir- ing the testimony may, perhaps, have the benefit of an exception. (See Ra-pelye v. Prince, 4 Hill, 119 ; Neil v. Thorn, 88 N. Y. 270, 276.) The court sometimes suggests the withdrawal of a juror where, after a motion to nonsuit, the plaintiff asks leave to amend his com- plaint, and the amendment sought is not one which could properly be allowed upon the trial. (See Van Syokles v. Perry, 3 Rob. 621.) SECTION XXV. Motion for Nonsuit, Dismissal of Complaint, etc. Motions for a dismissal of the complaint upon the ground that it does not state facts sufficient to constitute a cause of action have been already noticed. {Ante, p. 169.) A motion may also be made to dismiss the complaint or for a nonsuit upon the ground that the facts proven do not establish any cause of action against any of the defendants, or against some one or more of them ; or, upon the 28 218 Tkial Practice. When no cause of action is proven. ground that the particular cause of action alleged in the complaint is unproved in its entire scope and meaning ; or, upon the ground that there is a want of proper parties, where that objection has been properly taken; or, upon the ground that the uncontradicted testi- mony of unimpeached and disinterested witnesses has established a perfect defense to the action. When no cause of action is proven. — Prior to the Code, a plaintiff could be compelled at the trial to submit to a nonsuit, when Ihe evidence adduced was not suflflcient to support the declaration. {Pratt V. Hull, 13 Johns. 334.) He could not be nonsuited if he proved all that was laid in the declaration because the sufficiency of the declaration could only be tested by a demurrer, or by a motion in arrest of judgment. {Safford v. Stevens, 2 Wend. 158 ; Kelly w. Kelly, 3 Barb. 419 ; Yan Vechten v. Graves, 4 Johns. 403 ; Meyer V. McLean, 1 id. 509.) But in case of the insufficiency of the proof to support the declaration, it was the duty of the court to take the case from the jury and to nonsuit. {Stuart v. Simpson, 1 Wend. 376 ; Demeyer v. Souzer, 6 id. 436.) The power to do so was held to be inherent in the courts and to result necessarily from the fact that they are the judges of the law of the case, when no facts are in dispute. {Pratt v. Hull, 13 Johns. 334. See Lobar v. Koplin, 4 N. Y. 547, 549.) The Code has changed the former practice in one respect by de- claring that the defendant does not waive the objection that the com- plaint does not state facts sufficient to constitute a cause of action by omitting to take it by answer or demurrer. (Code of Civ. Pro., § 499.) Since the Code, the defendant may take the objection by motion to nonsuit ; and although the allegations of the complaint are proven, if the proof does not establish a cause of action, the complaint may be dismissed or the plaintiff may be nonsuited. (See Ahernethy V. Society of tJie Chtorch of the Puritans, 3 Daly, 1. See, also, Kern V. Towsley, 51 Barb. 385.) A dismissal of the complant is equiva- lent to a nonsuit. {Lomer v. Meeker, 25 N. Y. 361.) It is well settled in this State, and has been for more than half a century, that on a failure of the proof on the part of the plaintiff, he may be non- suited against his consent ; and it is laid down as a general rule that if the evidence would not authorize the jury to find a verdict for the plaintiff, or if the court would set it aside if so found, as contrary to evidence, it is the duty of the court to nonsuit. {Stuart v. Simpson, Motion foe Nonsuit, Dismissal of Complaint, etc. 219 When no cause of action is proven. 1 "Wend. 376 ; Bemeyer v. Souzer, 6 id. 436 ; Doane v. Eddy, 16 id. 523, 529; Rudd v. Davis, d Hill, 287; 7 id. 529; Steves v. Oswego <& Syracuse R. R. Co., 18 N". Y. 422 ; Sheldon v. Hudson River R. R. Co., 29 Barb. 226; Watson v. Donnelly, 18 id. 653; TJiompson v. Lumley, 50 id. 105 ; Deyo r. New York Gent. R. R. Co., 34 N. T. 9; Ernsts. Hudson River E. R. Co., 24 How. 97; Moore v. Gadsden, 93 N. T. 12.) The right and the duty to non- suit are correlative ; and to refuse to nonsuit in a proper case is error. (Lomer v. Meeker, 25 N. Y. 361 ; Foot v. Sabin, 19 Johns. 154; Carpenter v. Smith, 10 Barb. 663.) But it is not enougli to justify a nonsuit that a court, upon a case made, might in the exercise of its discretion grant a new trial. It is onl}' where there is no evidence in law, which, if believed, will sustain a verdict, that the court is called upon to nonsuit. Evidence may be sufficient ia law to sustain a verdict, although so greatly against the apparent weiglit of evi- dence as to justify the granting of a new trial. {Colt v. Sixth Ave- nue R. R. Co., 49 N. Y. 671.) In deciding a motion for a nonsuit or dismissal of the complaint the court should assume those facts as true which a jury could properly find under the evidence. {Stark- weather V. Quigley, 7 Hun, 26, 28.) If, in any view of the evidence, taken in its most favorable light, a verdict may be rendered for the plaintiff, or if there are questions of fact which may be determined for the plaintiff, and, if determined in his favor, will entitle him to recover, the case should not be taken from the jury by a nonsuit. (Clemence v. City of Auburn, 66 N. Y. 334, 338 ; Thompson v. Lumley, 50 How. 105 ; 1 Abb. K C. 254 ; Garl v. Ayres, 53 K Y. 14; Bickett v. Taylor, 55 How. 126 ; Colt v. Sixth Avenue R. R. Co., 49 N. Y. 671; Heyne v. Blair, 62 id. 19; Freundy. Importers and Traders' Nat. Bank, 3 Hun, 689, 690 ; Morss v. Oslorn, 64 Barb. 54.) In such case a refusal to nonsuit is not error. {Kelly v. Kelly, 3 Barb, 419 ; McMullen v. Royt, 2 Daly, 271, 276 ; Fellows v. Barton, 66 Barb. 608 ; Downs v. Jalowaok, id. 458.) A plaintiff is entitled to go to the jury although he has shown himself entitled to nominal dam- ages only ( Van Rensselaer v. Jexaett, 2 N. Y. 135 ; Weber v. Kings- land, 8 Bosw. 415), and in an action brought by an administrator to recover damages, under the statute, for the negligent killing of a child, the absence of proof of special pecuniary damage resulting from the death to the next of kin, will not justify the court in non- suiting the plain tiif, or in directing a verdict for nominal damages 220 Trial PrA-Ctice, Where the alleged cause of action has not been proven. only. {Ihl V. Forty-second Street B. R. Co., il N. Y. 317 ; Hyall V. Kennedy, 8 Jones & Sp. 347, 359. See, also, Cornwall v. Mills, 12 id. 45.) While a motion for a nonsuit should not be made in a case where the right is not reasonably clear, it should be made where there are no questions of fact for the jury, for a failure to move for a non- suit is an admission that the evidence on the part of the plaintiff is sufticient prima faoie to justify a verdict in his favor (^lioss v. Colhy, 3 Hun, 546) ; and in the absence of such motion, or of a request that the court direct a verdict, the defendant cannot be heard to allege on appeal that the verdict was without evidence {Barrett V. Third Ave. R. R. Co., 45 N. Y. 628, 632; Sheely v. Cannon, 17 Week. Dig. 159), or against the weight of evidence. {Sickels v. Gillies, 45 How. 94; Rowe v. Stevens, 44 id. 10 ; 12 Abb. [N. S.] 389 ; St. John v. Skinner, 44 How. 198 ; Pealce v. Bell, 7 Hun, 454 ; Caspar v. O'Brien, 47 How. 80 ; 15 Abb. [N. S.] 402. But see contra, Lucas v. McEnerna, 19 Hun, 14 ; Shearman v. Henderson, 12 id. 170; Games v. Piatt, 15 Abb. [N. S.J 337; 4 Jones & Sp. 361 ; 46 How. 520.) Where tlie alleged cause of action has not been pro yen. — It may be laid down as a general rule, that where a plaintifE fails to prove the cause of action set up in his complaint, not in some par- ticular or particulars only, but in its entire scope and meaning, he must be nonsuited on a proper motion made by the defendant, even though he has proved a cause of action not alleged in his complaint. [Southwick V. First Nafl Bk. of Memphis, 84 N. Y. 420 ; Ross v. Mather, 51 id. 108; Neudeoker v. iiToA^Jery, 81 id. 296 ; Walter V. Bennett, 16 id. 250 ; McMichael v. Kilmer, 76 id. 36 ; Begraw V. Elmore, 50 id. 1. See Hollister v. Englehart, 7 Hun, 446.) The defendant will not be estopped from taking an objection to the right of the plaintifE to recover upon the cause of action not alleged by reason of his failure to object to the evidence establishing it when it was offered, if such evidence was pertinent to any issue raised by the pleadings. (See Williams v. Mechanics and Traders' Fire Ins. Co., 54 N. Y. 577 ; Arnold v. Angell, 62 id. 508 ; Bruce v. Burr, 67 id. 237.) If under the issue made by the pleadings com- petent evidence is received which presents another issue not made by the pleadings, it cannot be used upon the latter issue against the adverse party, oven if ho does not object to its reception. (Id. ; Motion foe Nonsuit, Dismissal ot Complaint, etc. 221 In actions for negligence. Knapp V. Fov}ler, 30 Hun, .512.) But when the adverse party him- self gives evidence of a fact not alleged in the pleading which estab- lishes the right to the identical relief claimed against him, he can- not be heard to object that the evidence cannot be used for that purpose. (Id.) A motion for a nonsuit or dismissal of the complaint is proper where the action is based upon a particular contract or tort, and the proof is of a difEerent contract or tort, or where a tort is alleged and the proof discloses a contract, or viae versa. In such cases there is not a mere variance, but a failure of proof. (See ante, p. 215.) But although a complaint in an action of trespass refers to a provision of the statute providing for the recovery of treble damages, and the evidence will justify a verdict for single damages only, a motion to dismiss the complaint should not be granted. [Starkweather v. Quigley, 7 Hun, 26.) No action should be dismissed because the plaintiff claims too much. (Id.) So, where the complaint contains a statement of facts constituting a cause of action on contract, and a breach of the contract is proven on the trial, the plaintiff should not be nonsuited because the complaint also contains allegations suited to an action ex delioto. {Gonaughty v. Nichols, 42 N. T. 83 ; Neftel V. Lightstone, 77 id. 96 ; Ledwioh v. MoKim, 53 id. 30T ; Graves v. Waite, 59 id. 156 ; Boss v. Terry, 63 id. 613 ; Byxbie v. Wood, 24 id. 607 ; Veeder v. Cooley, 2 Hun, 74 ; Tugman v. Nat'l Steamship Go., 76 N. Y. 207 ; Austin v. Rawdon, 44 id. 63 ; Shea- han V. Shanahan, 5 Hun, 461 ; Harris v. Todd, 16 id. 243.) In actions for negligence. — One of the most difficult questions presented to the court is the right of the defendant to a nonsuit m an action for negligence, where the proofs of the defendant's negli- gence and of the absence of contributory negligence on the part of the plaintiff are so slight and inconclusive as to bring the case on the border line between a, prima facie case and a failure of proof. Negligence, like any other ground of action, must be proven. ( Wilds V. Hudson River R. R. Go., 24 N. Y. 430.) There must be affirmative proof of the defendant's negligence before the case can go to the jury. (Johnson v. Hudson River R. R. Go., 20 N. Y. 65.) The plaintiff must also prove affirmatively, as a part of his case, either by circumstances or by direct evidence, that he was free from any fault contributing to the injury complained of. ( Warner v. New York Gent. R. R. Go., 44 N. Y. 465 ; Reynolds 222 Trial Practice. In actions for negligence V. New Torh Cent. c& 11. R. R. R. Co., 58 id. 248 ; Wendell v. New Torh Cent, d; II. R. R. R. Co., 91 id. 420 ; Hart v. Hudson River Bridge Co., 80 id. 622. But see Smedis v. Broohlyn, etc., R. R. Co., 88 id. 13.) And if this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff. {Reynolds v. New York Cent. & H. R. R. R. Co., 58 N. Y. 248 ; Davis V. New Torh Cent. & H. R. R. R. Co.,^1 id. 400 ; Cordell V. New Torh Cent. c& E. R. R.R. Co.,76 id. 330 ; Gonsales v. New Torh (& Harlem R. R. Co., 50 How. 126, 128; Halpin v. Third Avetiue R. R. Co., 8 Jones & Sp. 175.) There is no presumption of negligence against either party. ( Warmer v. New Torh Cent. R. R. Co., 44 N. Y. 465.) Nor is there any presumption of the absence of contributory negligence, growing out of the natural instinct to avoid danger and injury, which will take the place of proof. {Rey- nolds V. New Torh Cent. & H. R. R. R. Co., 58 K Y. 248 ; Cor- dell V. New Torh Cent. <& II. R. R. R. Co., 75 id. 330 ; Warner v. New Torh Cent. R. R. Co , 44 id. 465.) It is not, however, neces- sary that the want of contributory negligence should be shown by direct evidence if it sufficiently appears from the circumstances at- tending the injury. {Warner y. New Torh Cent. R. R. Co.,4A: N. Y. 465, 471 ; Johnson v. Hudson River R. R. Co., 20 id. 65 ; Hart V. Hudson River Bridge Co., 80 id. 622 ; Ilalpinv. Third Avenue R. R. Co., 8 Jones & Sp. 175, 183.) But, if there is no direct evi- dence on the subject, and the circumstances point just as much to the negligence of the plaintiff as to its absence, or point in neither direc- tion, the plaintiff should be nonsuited. {Cordell v. New Torh Cent. (& H. R. R. R. Co., 75 N. Y. 330 ; Wendell v. New Torh Cent, ds H. R. R. R. Co., 91 id. 420, 426 ; Riceman v. Havemeyer, 84 id. 647.) On the other hand, it is not enough to authorize a nonsuit that there is evidence which would have warranted the jury in finding that the plaintiff was negligent, and that his negligence contributed to the injury. The question of negligence is ordinarily for the jury, and when the inferences to be drawn from the proof are not certain and incontrovertible, the question must be submitted to the jury, and cannot be decided as a question of law by directing a verdict or nonsuit. {Thurber v. Harlem Bridge, etc., R. R. Co., 60 N. Y. 326 ; Maker v. Central Parh, eta., R. R. Co., 67 id. 52 ; Belton v. Baxter, 58 id. 411 ; Weber v. New Torh Ce?it. c6 H. R.R. R. Co., Motion foe Nonsuit, Dismissal of Complaint, etc. 223 In actions for negligence. id. 451; Wendell v. JVew York Cent. c& E. It. R.B. Co., 91 id. 420, 427 ; Hart v. Hudson River Bridge Co., 80 id. 622.) Tliere are certain acts, shown by experience and common sense to be dangerous, such as jumping on or off a railroad car while in rapid motion, or crossing a railroad track without looking to see whether a train is approaching, which will be recognized by the court as constituting contributory negligence, where there is no dispute as to the facts, and no attendant circumstances appearing tending to qualify the character of the act. {Morrison v. Erie Rail- way Co., 56 ]Sr. Y. 302 ; Hays v. Miller, 70 id. 112, 117 ; Phillips V. Rensselaer da Saratoga R. R. Co., 49 id. 177 ; Burrows v. Erie Railway Co., 63 id. 556 ; Connelly v. New Yorh Cent. & H. R. R. R. Co., 88 id. 346.) But it cannot be said, as a matter of law, that it is always negli- gent for a person to get on or off a car while in motion {Eppendorf V. Brooklyn, etc., R. R. Co., 69 JS". Y. 195 ; Morrison v. Erie Rail- way Co., 56 id. 302; Hale Y.Brooldyn City, etc., R. R. Co., 1 Hun 146; 60 ]Sr. Y. 638; Filer v. New Yorh Cent. R. R. Co., 49 id. 47; Mettlestadt v. Ninth Ave. R. R. Co., 4 Rob. 377) ; or to cross a rail- road track without looking {Mo Govern t. New York Cent. & Hud. son River R. R. Co., 67 IST. Y. 417; Webber v. New York Cent. & Hudson River R.R. Co., id. 587; Brassell v. New York Cent. & Hudson River R. R. Co., 84 id. 241 ; Leonard v. New York Cent. d; Hudson River R. R. Co., 10 Jones & Sp. 225. See Terry v. Jewett, n Hun, 395 ; 78 K Y. 338; Holan v. Delaware d; Hud- son Canal Co., 71 id. 235 ; Ingersoll v. New York Cent, d; Hud- son River R. R. Co., 6 K Y. Sup. Ct. [T. & 0.] 416 ; 4 Hun, 277 ; 66 N. Y. 612.) Such cases then fall under the general rule that where men of ordinary prudence and discretion, in consideration of all the circumstances of the case, and the positions and conditions of the parties, may differ as to the character of the act claimed to be negligent, the question should be decided as one of fact. {Thurher V. Harlem Bridge, etc., R. R. Go., 60 N. Y. 326, 331 ; Hays v. Miller, 70 id. 112, 116 ; Wendell v. New York Cent., eta., R. R. Co., 91 id. 420, 427; Payne v. Troy d Boston B. R. Co., 83 id. 572.) To justify a nonsuit upon the ground of contributory negligence, such negligence must appear so clearly that no construction of the evidence, or inference drawn from the facts, would have warranted a contrary conclusion, and that a verdict of the jury the other way would have been set aside as against evidence. {Staokus v. New 22i Trial Practice. When to move . York Cent. <& II. R. R. R. Co., 79 N. Y. 464. See Massoth v. Delaware (& Hudson Canal Co., 64 id. 524.) But, where there is no conflict of testimony, and the facts all point to the single con- clusion that the plaintiff was negligent, the court is bound to non- suit. ( Wendell v. JSfew Torh Cent. & Hudson River R. R. Co., 91 N. T. 420 ; Gonzales v. New York <& Harlem R. R. Co., 50 How. 126.) When to move. — The plaintiff, if he has the affirmative, before he rests his ease, must establish the truth of his averments by com- petent evidence, sufficient for that purpose, if uncontradicted. {Stearns v. Meld, 90 N. Y. 640. See Morrison v. New York ds New Haven R. R. Co., 32 Barb. 568, 575.) If he fails to do this he has not made 21, prima faoie case, and a motion for a nonsuit, or for the dismissal of the plaintifE's complaint, is proper. The court may, notwithstanding, deny the motion and permit the plaintiff to give further proof. [Hunt v. Maybee, 7 K T. 266, 273. See Brown v. Mayor, etc., of New York, 55 How. 8.) In such case the denial of the motion for the purpose of receiving further evi- dence, being in the discretion of the com-t, is not a subject of excep- tion. But if the nonsuit is denied upon the ground that the plaintiff has made a prima facie case, an exception is proper. (See Car- penter V. Smith, 10 Barb. 663, 665 ; Tiffany v. St. John, 65 N. Y. 314. An error in denying the motion at this stage of the case will be cured if the defect in the plaintiff's proofs is afterward supplied by either party during the trial. {Schenectady & Saratoga Plank- road Co. V. Thatcher, 11 N. Y. 102, 112 ; Bartholomew v. Lyon, 67 Barb. 86 ; 3 N. Y. Sup. Ct. [T. & C] 774 ; McCotter v. Hooker, 8 K Y. 497; Mayor of N. Y. v. Mason, 1 Abb. 344; 4 E. D. Smith, 142 ; Colegrove v. Harlem, etc., R. R. Co., 6 Duer, 382 ; Lan- sing v. Van Alstyne, 2 Wend. 561; Barrick v. Austin, 21 Barb. 241 ; Breidert v. Vincent, 1 E. D. Smith, 542 ; Jackson v. Leggett, 7 Wend. 377; CoUin^. Burnet, 2 Hilt. 620; Painton y. North- ern Cent. Railway Co., 83 N. Y. 7. And see Tiffany v. St. John, 65 id. 314, 317.) A motion for a nonsuit or dismissal of the complaint may also be made after the evidence on both sides is closed. {Rudd v. Davis, 3 Hill, 287 ; 7 id, 529; Zomer v. Meeker, 25 N. Y. 361.) It may then be made upon the ground either that the proofs fail to show a cause of action in favor of the plaintiff against the defeadant, or Motion foe Nonsuit, Dismissal of Complaint, bto. 225 Motion, by whom made. do not establisli the cause of aetiou alleged in the complaint (See mhte, p. 220), or upon the ground that the undisputed testimony of disinterested and unimpeached witnesses, produced by the defend- ant, have established a complete defense to the action. {Lomer v. Meeker, 25 N. Y. 361.) The difficulty in deciding a motion for a nonsuit in the latter case lies in determining when a witness is, in a legal sense, uncontradicted or unimpeached. The testimony of a witness may be contradicted by its inherent improbability, or by cir- cumstances, as well as by direct evidence ; and the witness himself may have such an interest in the question at issue that his credibility is affected, though otherwise unimpeached. In such cases, courts and juries are not bound to refrain from exercising their judgment and to blindly adopt the statements of the witness for the simple reason that no other witness has denied them, and that the character of the witness is unimpeached {Elwood v. Western Union Tele_ graph Co., 45 N". Y. 549 ; Kavanagh v. Wilson, TO id. 177 ; Koehler V. Adler, 78 id. 287 ; Qildersleeve v. Landon, 73 id. 609), and the court would not be warranted in granting a nonsuit or directing a verdict on such testimony alone. (Id. ; Hodge v. City of Buffalo, 1 Abb. ISr. 0. 356.) Motion, by whom made. — In an action against the maker and indorser of a note, either defendant may move for a nonsuit or dis- missal of the complaint. {Lorrber v. Meeher, 25 N. Y. 361.) And generally, where an action is brought against several defendants, and no cause of action is proved against some one or more of them, those against whom no cause of action is shown may move for and obtain a dismissal of the complaint as to them. ( Woodiurn v. Ghamher- lin, 17 Barb. 446.) But a plaintiff is not to be nonsuited as to all the defendants merely because he has brought too many parties into court, if he has proved a good cause of action against any of them, and the case is one in which a several judgment may be rendered against one or more of the defendants named in the complaint. {Molntosh V, Ensign, 28 N. Y. 169; Brumshill v. James, 11 id. 294 ; Marguat v. Marquat, 12 id. 336 ; Fielden v. Lahens, 6 Abb. [N. S.] 341 ; 2 Abb. Ct. App. 111.) In such case the plaintiff may recover against those shown to be liable and nonsuited as to the others. (Id.) So if too many persons have been joined as plaint- iffs, the objection may be urged as a ground for a nonsuit or dis- missal of the complaint as against those in whose favor no cause of 29 226 TiiiAL Practice. Motion, how ma4e. action is shown, but not as against all the plaintifEs. {Palmer v. Davis, 28 N". Y. 242 ; Simar v. Canaday, 53 id. 298 ; Enos v. Leach, 18 Hun, 139; Lammond y. Volans, 14 id. 263, 266.) In the first class of cases the motion for the nonsuit should be made bj' the defendant against whom no cause of action is shown, and should be limited to a dismissal of the complaint or nonsuit as to him. (See Woodburn v. Ghamberlin, 17 Barb. 446.) In the latter class of cases either defendant may make the motion, but the relief demanded should be limited to a dismissal of the complaint or nonsuit as against the plaintiffs improperly joined. Motion, how made. — The specific grounds upon which the de- fendant moves to dismiss the complaint or for a nonsuit should be stated at the time of making the motion in order that opportunity may be given to obviate the alleged defect. {Devoe v. Brandt, 58 Barb. 4-93 ; Binsse v. Wood, 37 K Y. 526 ; Thayer v. Ma/rsh, 75 id. 340 ; Mallory v. Travelers^ Ins. Co., 47 id. 52.) It is well settled that under an exception to a refusal to grant a mere general motion for a nonsuit or for a dismissal of the complaint, no ground of objection will be considered on appeal which might have been obviated if the attention of the court had been called to it upon the trial. To that extent a general motion is unavailing. (Id. ; Shotwell v. Mali, 38 Barb. 445 ; Ansonia Brass and Copper Co. v. Fratt, 10 Hun, 443; Castle v. Duryea, 32 Barb. 480; Seeder V. Sayre, 70 K. Y. 180, 190; Adams v. Greenwich Ins. Co., id. 166. See Broohs v. Harison, 91 id. 83.) Thus an objection to any deficiency in proof which might have been supplied on the trial {Shotwell V. Mali, 38 Barb. 445 ; ' .Smsse v. Wood, 37 IST. Y. 526; Adams v. Greenwich Ins. Co., 70 id. 166), or an objection to the form of the action, as that it should have been brought for the de- fendant's negligence instead of trespass for a direct injury {Castle v. Duryea, 32 Barb. 480), must be specifically pointed out to be avail- able on appeal. A general statement, as a ground of the motion, that no cause of action has been made out by the plaintiff will not raise the question whether there is, in the language of the Code, " a failure of proof " of the special case made by the complaint. {Beiknap v. Sealey, 14 K Y. 143; DoTjle v. Mulren, 7 Abb. [N. S.] 258; 1 Sweeny, 517. See Ahernethy v. Society of the Church of the Puritans, 3 Daly, 1.) But a motion for a nonsuit, at the close of the evidence, upon the Motion foe Nonsuit, Dismissal of Complaint, etc. 227 ExoeptionB and requesta. whole case, upon the general ground that the plaintiff had not made out a cause of action, is sufficient when it is clear, from the whole case, that no cause of action is made out, even though it is apparent that the defendant has misapprehended the true grounds of his motion, and is relying upon another ground wholly untenable. ( Winslow T. Bliss, 3 Lans. 220.) And a general statement of the grounds of the motion may be held sufficient to raise objections on appeal which could not have been obviated had the attention of the court been specifically called to them. (See Ansonia Brass and Vojpper Co. v. Pratt, 10 Hun, 443.) The defendant should not only make the grounds of his motion specific, but he should also specify the true grounds iipon which the motion should be granted. If the motion is made upon a ground which is untenable, and there is no other ground incapable of being obviated, the motion must be denied. {Baynor v. Hoagland, 7 Jones & Sp. 11.) But if the defendant specifies a proper ground for the motion, the fact that he also stated other grounds not tenable, will not sustain an erroneous ruling denying it. [Durant v. Aben- droth, 12 Jones & Sp. 463.) Exceptions and requests. — "Where a motion for a nonsuit is denied, the party making the motion should except to the ruling denying the motion, and should ask or claim the right to go to the jury upon the facts. A motion for a nonsuit is a concession on the part of the defendant that there is no dispute as to the facts, and, therefore, nothing to be submitted to the jury ; and in the absence of a request to go to the jury, he will be estopped from afterward claiming that the court should have submitted the facts to the jury. ( Winchell v. Eichs, 18 N. Y. 558 ; Dillon v. Cockcroft, 90 id. 649 ; Ormes v. Dauchy, 82 id. 443 ; 0^ Weill v. James, 43 id. 84; Muller V. McKesson, 73 id. 195 ; Yan Allen \. Farmers^ Joint-Stock Ins. Co., 10 Hun, 397.) If there are any facts in dispute they must be decided by the jury if the defendant insists upon the right, or they may be decided by the court if the parties do not object. If the defendant does object and demands the submission of the facts to the jury, a refusal will be a good ground of exception, {Koehler v. Adler, 78 N. T. 2S7.) But the demand or request should be expressly made and should specify the question the defendant desires submitted. {Muller v. McKesson, 73 N. Y. 195.) If this is not done he cannot afterward 228 Teial Peaotioe. Exceptions and requests — Directing a verdict. complaia that the court took the case from the jury and directed a verdict or limited the question to be passed upon by the jury. (See cases above cited.) If the motion is granted and the plaintiff is nonsuited on the whole case, he should except to the decision ; but it is not necessary that he should ask specifically to go to the jury upon the whole case or upon any question, to enable him to present his exception to a court of review. (Train v. Holland Purchase Co., 62 N. Y. 598 ; Trustees of East Hampton v. KirJc, 68 id. 459, 464 ; Sheldon v. Atlantic Fire and Marine Ins. Co. , 26 id. 460 ; Backman v. ■Jenks, 55 Barb. 468. See Ormes v. Bauchy, 82 N. T. 443, 449. See contra, Bidwell v. Lament, 17 How. 359 ; Ola/rh v. Mayor, etc., of N. T., 24 id. 333 ; Terry v. Bonesteel, 25 id. 422 ; McGuire v. Sinclair, 47 id. 360 ; 3 Jones & Sp. 561.) There is no concession upon his part that there are no questions to be submitted to the jury and no waiver of the right to go to the jury. {Trustees of East Hampton v. KirJc, 68 N. T. 459.) If the nonsuit is granted as to all the parties, it terminates the action, and the defendant thereupon enters up judgment. If it is granted as to part only of the defendants, the case must be submitted to the jury as to the others, and the appropriate judgment entered at the close of the case. (See Code of Civ. Pro., §§ 1204, 1205.) A dismissal of the complaint or a nonsuit after all the evidence is in is no bar to another action between the same parties for the same cause. ( Wheeler v. Buehman, 51 N. Y. 391 ; Code of Civ. Pro., § 1209 ; Harrison v. Wood, 2 Duer, 50 ; Mechanics' Banking Association v. Mariposa Co., 7 Rob. 225 ; People v. Vilas, 3 Abb. \_^. S.J 252 ; Dexter v. Clark, 22 How. 289 ; 35 Barb. 271 ; Coit v. Beard, 33 id. 357; 22 How. 2; 12 Abb. 462.) SECTION XXVI. DiEECTING A YeEDICT. At the close of the evidence given on trial, if & prima facie case has been established on the part of the plaintiff, which is undisputed by the defendant, it has long been customary to direct a verdict for the plaintiff. {People v. Cook, 8 N. Y. 67 ; Nichols v. Goldsmith, 7 Wend. 160.) So where a defendant, by clear and uncontradicted evidence, has established a perfect defense to the cause of action brought against him, the court will ordinarily direct a verdict in his DiEEOTiNG A Verdict. 229 Rules governing the directing of a verdict. favor. But there may be cases, as will be noticed hereafter, where the court should direct a nonsuit instead of a verdict. The power of a court to direct a verdict rests upon the same prin- ciple as the power to nonsuit, that is, that the court is the judge of the law when there is no dispute about facts. {People v. Qook, 8 IST. T. 67.) The question whether there is any evidence is for the court ; the question whether there is sufficient evidence is for the jury. {Sherwood v. Mercantile Mut. Ins. Oo., 5 Hun, 115 ; Ander- son V. Morioe, L. E., 10 C. P. 58.) The rule in respect to the question when a judge may nonsuit at the Circuit, or direct a verdict for the plaintiff or defendant, is sub- stantially the same. It is that when the evidence on either side is so clear and undisputed, that a verdict by the jury, in conflict with it, could not be sustained, and the judge would feel it his duty to set it aside, then it is his duty to direct a verdict in conformity with such evidence, as it is his duty to direct a nonsuit when the plaintiff's evidence entirely fails to establish a cause of action. ( Wombough v. Cooper, 2 Hun, 428.) A direction of a judge to the jury to iind a verdict for one of the parties is always proper when a contrarj' verdict would be set aside upon the ground that it was against evidence. {Herring v. Soppook, 15 N". Y. 409, 413 ; Stevens v. Msher, 19 "Wend. 181 ; People v. Board of Police, 14 Abb. 158 ; 35 Barb. 651 ; Goelet v. Hoss, 15 Abb. 251 ; Porter y. Havens, 37 Barb. 343 ; Suydam v. Grand St. and Newtown R. R. Co., 41 id. 375 ; 17 Abb. 304 ; Barrett v. Third Avenue R. R. Co., 8 Abb. [KS.J205; 1 Sweeny, 568; MjV% v. Fas^V, 38How.406.) But the evidence must be of the character above stated to warrant an unqualified direction to the jury in favor of either party. {Rich\. Rich, 16 Wend. 663 ; Crawford v. Wilson, 4 Barb. 504 ; Sherwood Y. Mercantile Mut. Ins. Co., 5 Hun, 115 ; Bridgeport City Banh V. Empire Stone Dressing Co., 30 Barb. 421, 425 ; 19 How. 51 ; SacTcett v. Spencer, 29 Barb. 180 ; Be Wolf v. Crandall, 1 Sweeny, 556.) If the court directs a verdict for the plaintiff it must be re- garded as ruling that the plaintiff was entitled to recover, even upon the case as presented by the defendant's testimonj', and in view of any inferences which a jury might legitimately draw from the de- fendant's testimony or from the whole of the evidence in the case. {Royce v. Watrous, 7 Daly, 87.) So a direction of a verdict for the defendant is in effect a decision that the plaintiff is not entitled to 230 Trial Pkactioe. Rules governing the directing of a verdict. recover upon any finding warranted by the testimony. {Stone v. Flower, 47 K Y. 666.) There may be cases where a party has the right to go to the jury upon a question of fact, and yet, by his conduct on the trial, he may impUedly waive that right and make the court the judge of the fact as well as the law. Thus if the counsel for the defendant moves to dismiss the complaint, and the motion is denied, and the plaintiff then requests the court to direct a verdict for the plaintiff, which is granted, without any request on the part of the defendant to go to the jury upon the facts, the several motions of tlie parties virtually amount to an agreement to submit the question of fact to the judge, and, under such circumstances, if there is any evidence to uphold the decision, it is not error. {Dillon v. Cockoroft, 90 IST. T. 649 ; Hagaman v. Burr, 9 Jones & Sp. 423 ; Leggett v. Hyde, 58 N". T. 272, 275 ; KoeUer v. Adler, 78 id. 287 ; Barnes v. Ferine, 12 id. 18 ; Strong v. New York Laundry Mantif. Co., 6 Hun, 528.) In such case a mere exception to the decision of the court, directing a verdict, will be unavailable, upon appeal, to raise the objection that there were questions for the jury. (Id.) After a party has moved for a nonsuit, or for a verdict in his favor, and the motion has been denied, if he deems that there is any question of fact which should be submitted to the jury, he should then ask to go to the jury upon the facts ; and, if that motion is denied, should except to that decision. (See Koehler v. Adler, 78 N. Y. 287.) Unless he makes such re- quest he will be estopped from taking the point in the appellate court that there were questions to be passed upon by the jury. {Ormes v. Dauohy, 82 N. Y. 443. But see Wombough v. Cooper, 2 Hun, 428.) But where the party has not moved for a nonsuit, or done any other act from which a waiver of the right to go to the jury may be implied, an exception to the ruling of the judge direct- ing a verdict is sufficient to present the objection, upon appeal, that there were questions of fact for the jury, and it is not necessary to go further and request that any fact be so submitted. {Trustees of East Hampton v. Kirh, 68 N. Y. 459 ; First Nat. Bank v. Dana, 79 id. 108 ; Stone v. Flower, 47 id. 566 ; Toddv. Todd, 3 Hun, 298 ; 5 N. Y. Sup. Ct. [T. & C] 531 ; Freaking v. Rolland, 53 N". Y. 422, 421. See, contra, Kennedy v. Oswego c& Syracuse R. R. Co., 07 Barb. 169, 181.) An exception to the ruling of the court directing a verdict, where no request to submit the facts to the jury is requisite, brings up for DlREOTTNG A VeEDIOT. 231 Eulea governing the directing of a verdict. review the question whether, on any construction of the facts, the jury would have been warranted in finding for the defeated party {Minor v. Mayor, etc., of JV. Y., 5 Jones & Sp. 171 ; Stone v. Flower, 47 N. Y. 566 ; Boyce v. Watrous, 7 Daly, 87), while an exception to such ruling, where a request to go to the jury is essentia], and is not made, presents the question whether, upon any state of facts warranted by the testimony, the decision of the court can be maintained. (Hagwman v. Burr, 9 Jones & Sp. 423.) If the court erroneously takes the case from the jury by directing a verdict, the error is fatal, provided the party aggrieved has placed himself in a position to raise the question upon appeal. {Downs v. Jalowaok, 66 Barb. 458.) A request upoa the whole case that the court direct a verdict for the defendant is, in substance and effect, the same thing as a motion for a nonsuit. {Appleby v. Astor Fire Ins. Co., 54 N. Y. 253.) And a motion to dismiss the complaint is said to be equivalent to a request to direct a verdict in favor of the defendant. {Dillon v. Cookcroft, 90 JST. Y. 649, 650.) But the court ought not to direct a verdict in every case where a nonsuit would be proper. Even if a plaintLBE fails to prove his case and ought to be nonsuited, it does not follow that the defendant is entitled to have a verdict directed which would be a final bar to the plaintiii's right of action. {Briggs v. Waldron, 83 N. Y. 582.) Thus where an action is brought for the conversion of a quantity of logs, alleged to have been cut and removed from the plaintiff's land, and, upon the trial, it appears that the defendant is in possession, but both plaintiff and defendant fail to show title to the lands from which they are taken, a verdict should not be directed for the defendant, but the plaintiff should be nonsuited, as the verdict would be conclusive evidence of title to land in the defendant in all subsequent proceedings involving the question. {Johnson v. Elwood, 56 N. Y. 614. See S. G., 53 id. 431.) When a verdict is directed by the court, the jury find according to the directions without leaving their seats. The verdict is recorded by the clerk in the minutes of the trial, and judgment entered thereon in the usual manner. 233 Trial Peactioe. Directing a verdict subject to the opinion of the court. SECTION XXVII. DiEECTING A VeEDICT SdBJECT TO THE OpiNION OF THE CoUET. Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict subject to the opinion of the court. (Code of Civ. Pro., § 1185.) To render such a direction proper, all the facts necessary to enable the court to render a final judgment one way or the other must be conceded or established. {Matson v. Fa/rm Buildings Ins. Co., 73 N. Y. 310 ; Partridge v. Norton, 9 Hun, 582.) The question to be presented to the General Term is, which party, upon a conceded state of facts, shall have final judgment, and never whether a new trial shall be granted. {Colh v. Cornish, 16 N. Y. 602, 605 ; Du- rant v. Abendrotli, 69 id. 148.) If the facts are controverted, or exceptions to rulings upon evidence have been taken upon the trial (Durant v. Ahendroth, 69 N. Y. 148 ; Sayles v. Sims, 73 id. 551 ; Talmage v. Huntting, 29 id. 447, 453 ; Purchase v. Matteson, 25 id. 211 ; Dickerson v . Wasson, 48 Barb. 412 ; Fire Department v. Thompson, 16 Hun, 474 ; Bell v. Shilley, 33 Barb. 610 ; Coll v. Cornish, 16 N. Y. 602 ; Briggs v. Merrill, 58 Barb. 389 ; Biddle- com V. Newton, 13 Hun, 582 ; Byrnes v. City of Cohoes, 67 N. Y. 204), or if there is a question as to the credibility of witnesses, such a direction is improper. {Saohett v. Spencer, 29 Barb. 180.) But if there is no conflict in the testimony, and no exception has been taken to any ruling of the judge upon any question of law during the trial, and the only question is as to which party is entitled to judgment upon the undisputed facts of the case, it is proper to direct such verdict, and it then becomes the duty of the General Term, upon the hearing, to give judgment in favor of the party entitled thereto upon the facts appearing in the case. {Poole v. Kermit, 59 N, Y. 554.) In such case the verdict is a mere matter of form, and it is immaterial which party has it, the onlv effect of rendering a verdict in favor of a party being to impose upon him the burden of preparing the case upon which to move at the Gen- eral Term for judgment. {Purchase v. N. Y. Fxch. Bank, 10 Bosw. 564 ; Coll v. Cornish, 16 N. Y. 602, 604.) The direction must be that the jury render a verdict ; and to direct a judgment for a party subject to the opinion of the court at General Term is a mistrial. {Freelorn v. Wagner, 49 Barb. 43, 56.) Summing up. 233 Directing a verdict, etc. — Summing up. A failure to object to the direction of a verdict in an improper case does not waive the irregularity. {Purchase v. Matteson, 25 N. T. 211.) But if a party expressly consents to such a disposition of the case, he cannot afterward be heard to say that there was a mistrial. {Byrnes V. City of Gohoes, 6 Hun, 602; 67 N. Y. 204 ; Biddlecom v. Newton, 13 Hun, 5S2.) Either party may move at the General Term for judgment on the verdict. (Code of Civ. Pro., § 123i.) The motion will be made upon a case prepared by the party in whose favor tlie decision was rendered. {GohbY. Cornish, 16 N". T. 602.) The practice on appli- cations for judgment will be noticed hereafter. Notwithstanding that a verdict has been rendered subject to the opinion of the court, the judge holding the Trial Term may at the same term set aside the verdict and direct judgment to be entered for either party with^like effect and in like manner, as if such a direc- tion had been given at the trial. An exception to such direction may be taken in the same manner as an exception taken after the close of atrial by the court or referee. (Code of Civ. Pro., § 1185.) SECTION XXVIII. Summing up. If the facts in the case are not undisputed, and any question is left to be passed upon by the jury, the counsel for the several parties usually close their labors before the jury by summing up the evi- dence. But this course is not always pursued, and sometimes the cause is submitted on the charge of the court. In fact it is held that whether counsel shall be permitted to address the jury is, and always has been, a matter resting in the sound discretion of the court- {People V. Cook, 8 N. Y. 67, 77.) The right of a party holding the affirmative upon an issue of fact upon trial, to open and close the evidence, and upon the final sub- mission of the case to the jury to reply in summing up, is too well settled to admit of any question. {Murray v. New York Life Ins. Go., 85 N. Y. 236 ; Millerd v. Thorn, 56 id. 402 ; S. G., 15 Abb. [N. S.] 371 ; Elwell v. Chaniberlin, 31 N. Y. 611 ; Hunter v. American Popular Life Ins. Go. , 4 Hun, 794 ; L>e Graff v. Car- michael, 13 id. 129; Huntington v. Conhey, 33 Barb. 218.) This is a legal right, not resting in the discretion of the court, and wlien denied, the denial may be excepted to, and the ruling reviewed 30 234 Trial Peaotioe. Summing up. upon an appeal from the judgment. (Id. ; Lindsley v. European Petroleum Co., 3 Lans. 176 ; 41 How. 56 ; 10 Abb. [N. S.j 107 ; Brennan v. Security Life Ins., etc., Co.^ 4 Daly, 296. But see Fry v. Bennett, 28 N. T. 324, 329.) In some cases considerable importance seems to be attached to the fact that the party claiming the right to the closing address to the jury had opened the case and called the first witnesses without objection ; and this seems to have been regarded as a concession that the party had the affirmative. (See ELwell V. Chamberlin, 31 N. Y. 611.) But this does not seem to be a controlling circumstance, especially where the witnesses are not called in support of any issue raised by the pleadings. {De Oraff v. Carmiohael, 13 Hun, 129.) The mode of raising the question as to which party has the right to the closing address is by a request to the court to rule as to the order in which the counsel shall address the jury, and this request cannot properly be made until the whole evidence has been presented. {Mead v. Shea, 92 JST. Y. 122.) The party against whom the ruling is made should take an exception, and if the ruling is erroneous, he can obtain redress upon appeal, unless the verdict of the jury should be in his favor. But the party claiming the right, and taking the benefit of the ruling in his favor, cannot afterward be heard to complain that the ruling was errone- ous. {Smith V. Sergent, 67 Barb. 243. See Ayrault v. Chamher- lain, 33 id. 229, 233.) The question as to which party holds the affirmative within the meaning of the rule has been elsewhere con- sidered. (See ante, p. 170. See, also, Kobhe v. Price, 14 Hun, 55 ; Huntington v. Conkey, 33 Barb. 218 ; Hoxie v. Green, 37 How. 97 ; Murray v. New YorTc Life Ins. Co., 85 E". Y. 236 ; Brennan v. Security Life Ins., etc., Co., 4 Daly, 296.) If the de- fendant claims that he has the affirmative, the burden is upon him to make it appear beyond a reasonable doubt that he has admitted, by his pleadings, all the essential facts upon which the plaintiff bases his right of action. {Claflln v. Baere, 28 Hun, 204.) He Avill not be allowed to amend his pleadings on the trial so as to entitle him to the affirmative. {Kobhe v. Price, 14 Hun, 55.) Only one counsel on each side is permitted to sum up a cause, and he cannot occupy more than an hour in summing up, unless by per- mission of the court. (Gen. Kule 29.) The court may restrain the counsel from commenting on objections taken by the adverse party to the admission of evidence {Mitchell v. Borden, 8 "Wend. 570), or from indulging in denunciations of a party, based on the assunip- Ohaeging the Jttet. 235 Summing up — Charging the jury. tion of facts not proved {Fry v. Bennett, 3 Bosw. 200, 242 ; 9 Abb. 45), or from reading from a pamphlet issued by a party, but not received in evidence {Koelges v. Guardian Life Ins. Co., 57 N. T. 638), or from referring to matters offered in evidence which have been exchided by the court. {Gould v. Moore, 8 Jones & Sp. 387, 395.) The adverse party should object to all such irrelevant com- ments by the counsel summing up, and, if the court declines to inter- fere, should except to the refusal. Counsel summing up have a right to refer to the pleadings for the purpose of calling the attention of the jury to the exact position of the parties in respect to the issues to be tried. [Rowe v. ComZey, 22 Daily Eeg., No. 148.) But the court, in its discretion, may restrain counsel from reading a pleading or set of pleadings contain- ing irrelevant issues which have not or could not enter into the trial of the cause. ( Willis v. Forrest, 2 Duer, 310.) So it seems that the court may, and upon a proper objection, should restrain counsel from reading reported cases to the jury, which the counsel has stated to be on all fours with the case at bar, and that a refusal to do so is error. {Reich v. Mayor, 17 Week. Dig. 140.) How counsel shall address the jury with a view to further the best interests of their clients is a matter depending on the nature and object of the action, the character and position of the parties, the intelligence of the jury, and the time allowed by the court. Success as an advocate is not acquired by the study of rules, but rather by experience, observation and tact. If these qualifications are wanting, the attorney may best advance the interests of his client by address- ing the jury by proxy. SECTION XXIX. Chaeging the Juey, After the summing up by the counsel, the next step in the orderly progress of the trial is the charge of the court to the jury. The power of the presiding magistrate to charge the jury upon the law of the case exists wherever a jury trial is authorized. {People V. Kelsey, 14 Abb. S72.) But the court is not bound, without the request of the parties, to give any instructions to the jury ; and the jurors are presumed to be acquainted with all the rules of law in re- spect to which the parties do not request them to be instructed, or the court does not instruct them. {Raupt v. Pohlmann, 16 Abb. 301 ; 236 Teial Peaotiob Charging the j ury. 1 Rob. 121.) The cases are rare, however, in which the court will decline or neglect to give any instructions to the jury, whether re- quested to charge the jury or not ; and when a charge is given, the jury is bound to follow the advice of the court as to the law. (Dun- lop V. Patterson, 5 Cow. 243 ; ALUs v. Leonard, 58 N. Y. 288.) In charging the jury the judge explains to them the nature of the action and of the defense, and the points in issue be- tween the parties ; recapitulating the evidence which has been pro- duced on both sides, remarking upon it when necessary, and direct- ing the jury on all points of law arising on the evidence. (1 Burr. Pr. 235.) It is his duty to group the evidence and to indicate the bearing of its several parts upon the issue to be determined. {Comm. of Pilots V. Clarh, 33 N. Y. 251, 267.) He may state the impres- sions which testimony, either as to its subject-matter or the manner of its delivery, makes upon his mind, leaving it, however, for the jury to come to their own conclusions. ( Winne v. McDonald, 39 k. Y. 233, 239 ; Bruce v. Westervelt, 2 E. D. Smith, 440, 461 ; Cheesebrough v. Taylor, 12 Abb. 227 ; Hoffman v. New York Cent. (& H. R. R. R. Co., 14 Jones & Sp. 526 ; 87 K Y. 25 ; Nolton v. Moses, 3 Barb. 3 1 ; Powell v. Jones, 42 id. 24 ; Buckley v. Keteltas, 4 Sandf. 450 ; Sperry v. Miller, 16 IST. Y. 407, 412.) An expression of opinion as to the weight of some portion of the testimony, or as to the honesty of a witness, or as to the effect of some portion of the evidence, is not a ground for exception, so long as tlie court does not instruct the jury to find in accordance with such opinion, and the question is fairly left for them to decide. (Massoih v. Dela- ware i& Hudson Canal Co., 64 N. Y. 524 ; Sindram v. People, 88 id. 196 ; Vail v. Rice, 5 id. 155, 160 ; New York Firemen^ s Ins. Co. V. Walden, 12 Johns. 513 ; Hoffman v. New York Cent. & Hudson R. R. R. Co., 87 N. Y. 25, 32; De Groot v. Van Tuzer, 20 "Wend. 390, 413.) At the same time, in view of the just regard which is paid by jurors to the opinions of the judge, it is proper that in cases of conflicting evidence he should use great caution in expressing his opinion {Hoffm,an v. New York Cent, ds H. R. H. R. Co., 87 N. Y. 25, 32; Sindram y. People, 88 id. 196, 202) ; and to be free from legal objection the comments of the judge must be advisory merely, and must not take the form of a direction as a matter of law. (Allis v. Leonard, 58 N". Y. 288.) The judge may apprise the jury as to the effect of their verdict upon the question of costs [Nolton v. Moses, 3 Barb. 31 ; Waff,e v. Chaeging the Juet. 237 Requests to charge. DillenbecTc, 39 id. 123; 58 IST. Y. 53 ; 4 Abb. [N. S.J 4-57; Elliott V. Brown, 2 Wend. 497), or as to the consequences which may flow from their verdict, although he cannot ordinarily be called upon as a matter of right to do so. {Keller v. Strasburger, 90 N. T, 379. See Komna v. Kester, 15 Weekly Dig. 119.) Requests to charge. — It sometimes happens, that evidence, which should be disregarded by the jury in deliberating on their verdict, has crept into the case without objection at the time, and has been retained by the judge notwithstanding a motion has been made to strike it out. In such case the party prejudiced by the admission of the evidence should ask the court to instruct the jury to disregard it. {Marks v. King, 64 IST. Y. 628 ; Plainer v. Plainer, 78 id. 90, 101 ; ante, p. 208.) It is the legal right of counsel to siibmit to the court propositions of law bearing upon the evidence, and the court is bound to instruct the jury upon each proposition so submitted. {Chapman v. McOor- mick, 86 N. Y. 479 ; Zabrishie v. Smith, 13 id. 322.) If the request gives, in precise words, the true legal rule of the case, the court must give it to the jury substantially as asked, without qualification, or plainly refuse to charge as requested. ( Wilds v. Hudson River E. £. Co., 24 N. Y. 430, 442; 23 How. 492; Owen v. Hudson River R. R. Co., 35 N. Y. 516.) But a request to charge should be in such form that the court may charge in the very terms of the request, without qualification. {Keller v. New York Cent. R. R. Co., 24 How. 172, 183 ; Carpenter V. Stilwell, 11 N". Y. 61 ; Wright v. Paige, 36 Barb. 438, 443.) And if part of the request is good, and part is bad, the court is not called upon to separate the good from the bad and charge the good. (Id. ; Hamilton v. Eno, 81 N. Y. 116, 127; Doughty v. Hope, 3 Denio, 594; Magee v. Badger, 30 Barb. 246.) The rule above stated does not require the court to put any propo- sition to the jury, although it be correct in itself, in the very terras formulated by counsel. If the jury are correctly instructed as to the point, the party is not legally harmed by the departure from the language of the request. {Conley v. Meeker, 85 N. Y. 618; First Baptist Church v. Brooklyn Fire Ins. Co., 23 How. 448 ; More- house V. Teager, 71 N. Y. 594 ; Fay v. CNeill, 36 id. 11 ; Ruloff V. People, 45 id. 213, 219 ; 11 Abb. [N. S.] 245, 305 ; Carr v, Mayor, etc., of N. ¥., 11 Jonee & Sp. 158.) 238 Teial PEAcrroE. Bequests to charge. The attention of the court must be drawn to the precise point in- tended to be covered by the request. (Schile v. Brokhaus, 80 N. Y. 614:.) And each proposition or request to cliarge should be distinctly and separately made. (Taylor v. Ketcham, 5 Rob. 607, 520.) Where very numerous distinct propositions are presented, and the charge covers generally the questions of law presented, the attention of the court should be specifically called to any points upon which more definite instructions are desired. {Zahrishie v. Smith, 13 N. Y. 322 ; Walsh v. Kelly, 40 id. 556. See Buckley v. Keteltas, 4 Sandf. 450.) If the court does not apprehend the meaning of a request made, the counsel should call its attention to the fact, as otherwise his acquiescence in the interpretation put by the court upon the request will conclude liim. {Booth v. Boston d; Albany B. R. Qo., 73 N. Y. 38. And see Boehlen v. JSardenbergh, 60 id. 8.) And if the charge is capable of two constructions, one correct and the other erroneous, any modification necessary to free the charge from, ambiguity should be suggested. (Springsteed v . Lawson, 14 Abb. 328 ; 28 How. 302 ; Jones v. Brooklyn Life Ins. Co., 61 N". Y. 79, 86. See Carpenter v. Eastern Trans. Co., 71 id. 574 ; Games v. Piatt, 9 Jones & Sp. 435 ; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282.) And if the judge in his charge as- sumes a fact to be proven concerning which the evidence is contra^ dictory, or as to which there is no evidence, it is incumbent upon counsel to call his attention to the matter at the time, so that, if it is a mere error, he may correct it. {Garnes v. Piatt, 6 Eob. 270.) The court cannot be called upon to charge upon an assumed state of facts not proven upon the trial {Pratt v. Ogden, 34 N. Y. 20, 22 ; City of JV. Y. v. Price, 5 Sandf. 542 ; Kiernan v. Rocheleau, 6 Bosw. 148 ; Bushman v. Hall, 12 Abb. 420 ; Rouse v. Lewis, 2 Keyes, 352 ; Hope v. Lawrence, 50 Barb. 258 ; Sohwerin v. MoKie, 5 flob. 404; Benson v. Berry, 55 Barb. 620 ; Kluender v. Lynch 4 Keyes, 361), nor to charge a proposition, though legally correct, which has no bearing upon the case {Menard v. Stevens, 12 Jones, 6 Sp. 515 ; Mairs v. Manhattan Real Estate Ass'n, 15 id. 31 ; Bedell v. Commercial Mut. Lns. Co., 3 Bosw . 147 ; Priebe v. Kel- logg Bridge Co., 77 N. Y. 597), nor to instruct the jury as to a point not directly involved in the matter in controversy. {Clark V. Vorce, 19 Wend. 232.) Counsel have no right to select out a portion of the evidence and call upon the court to declare the law upon it ( Ward v. Forrest, 20 ChAKGINO the JtTEY. 239 Exceptions to the charge and to refusals to charge. How. 465, 477), nor to assume as true facts which are in dispute, and ask the court to declare the law thereon. A party is confined, in his requests for instructions to the jury, either to undisputed facts, or to a hypothetical statement of the case. {LeRoy v. Park Fire Ins. Co., 39 N. Y. 56; Gurney v. Smithson, 7 Bosw. 396. See Hope v. Lawrence, 50 Barb. 258.) Where the judge has already charged the jury substantially in conformity with a request, he need not comply with the request and repeat his charge. [HoThrooh v. JItica & Sohenectady R. R. Co., 12 N. Y". 236 ; Raymond v. Rioh- mo?i,d, 88 id. 671 ; Oarr v, Mayor of N. Y., 11 Jones & Sp. 158.) But he should place his refusal upon the ground that he has already so charged lest the jury be misled by an unqualified refusal. ( Well- ing V. Judge, 40 Barb. 193, 212.) A statement by the judge in re- sponse to a request to charge, that he has already so charged, is equivalent to telling the jury that such is the law. {Allison v. Scheeper, 9 Daly, 365.) So where the judge states to the jury that there are certain requests to charge which he will read, and then proceeds to read the requests to the jury, but without in terms say- ing that he does or does not give the requests to them as the law of the case, an appellate court will infer that the court meant to charge the jury that the requests so read were well asked for. {Hynes v. MeDermott, 82 N. Y. 41, 59.) Exceptions to the charge and to refusals to charge. — An exception to a charge given to the jury must be taken before the jury have rendered their verdict. (Code of Civ. Pro., § 995 ; DeLeon v. Echeverria, 13 Jones & Sp. 240.) If the counsel for either party desires to except to a specific propo- sition of the charge or to a particular remark of the judge, he should put his finger on the proposition, clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt a8 to the real character of the exception, or as to what was actually intended. To obtain the benefit of an exception to Ian- guage used in a charge, it must be presented in the same or equivalent words, or so as to embrace tlie substance of the charge, {McOinley V. United States Ins. Co., 77 N". Y. 495; Taylor v. Xetchum, 5 Eob. 507, 520 ; 35 How. 289 ; Jones v. Osgood, 6 K. Y. 233, 235 ; Lansing v. Wiswall, 5 Denio, 213, 219.) It is not strictly neces- sary to repeat the language of the charge excepted to, although it is more accurate to do so {People v. Livingston, 79 N. Y, 279, §92); 240 Trial Practice. Exceptions to the charge and to refusals to charge. nor is it necessary to suggest any changes or amendments {Freiond V. Paten, 10 Abb. N. C. 311 ; Goldman v. Abrahams, 9 Daly, 223), or to specify the grounds of the exception. (Id.) The exception will be suiEcient if it refers to the portion objected to with such accuracy that there can be no doubt as to what was intended. {Peo- ple V. Livingston, 79 N". Y. 279, 292.) Exceptions to portions of a charge involving extended comments on the evidence, which do not specify and point ont to the court in what respect an error is deemed to have been committed, are not available on appeal. {Emmons v. Barnes, 7 Daly, 418, 420 ; Walsh V. Mead, 8 Hun, 387, 394; Arnold v. People, 75 N. Y. 603.) If the charge contains several propositions, and as to some of them is un- objectionable, a single exception taken to the charge, or to each and every part of the charge, will present no question for review. {Stone V. Western Trans. Co., 38 N. Y. 240 ; Jones v. Osgood, 6 id. 233 ; Walsh V. Kelly, 40 id. 556 ; Runt v. Mayhee, 7 id. 266 ; Caldwell V. Murphy, 11 Id. 416 ; Chamberlain v. Pratt, 33 id. 47, 62 ; Tay- lor V. Ketchum, 5 Eob. 507, 520 ; 35 How. 289, 302 ; Eaggart v. Morgan, 5 N. Y. 422 ; Kluender v. Lynch, 4 Keyes, 361, 364 ; Groat V. Gile, 51 JST. Y. 431, 442; Bows v. Rush, 28 Barb. 157, 181 ; Carland v. Day, 4 E. D. Smith, 251 ; Murray v. Smith, 1 Duer, 412 ; Barker v. Savage, 1 Sweeny, 288, 294; SneU v. Snell, 3 Abb. 426.) So an exception to that part of a charge relating to a certain subject is too general if that part contained two or more prop- ositions, one of which was correct. {Chipman v. Pahner, 9 Hun, 517 ; Groat v. Gile, 51 K. Y. 431, 442 ; OldfieU v. New York & Harlem R. R. Co., 14 id. 310, 315.) So where a series of prop- ositions are submitted to the court with a request to charge, and some of them are substantially adopted by the court, an exception to the charge in all the particulars specified in the propositions submit- ted, so far as the court has not charged as requested, is of no avail. {Requa v. City of Rochester, 45 N. Y. 129, 137 ; Ayrault v. Pa- cific Bank, 47 id. 570 ; Walsh v. Kelly, 40 id. 556 ; Hoyt v. Long Island R. R. Co., 57 id. 678 ; Kluender v. Lynch, 4 Keyes, 361.) And where some of the pi-opositions are charged as requested, some charged in a modified form, and some not charged at all, and the court then declines to charge except as already charged, a gen- eral exception to such refusal as to each of such requests cannot bo sustained. The exception must be more specific, and point out the paticular request to which it is intended to apply, {Smedis v. Brook- Delibeeation of the Jury. 241 Taking papers to the j ury-room. lyn & Rockaway Beach, JR. H. Co., 88 N. Y. 13.) If a series of propositions is presented, v/ith a single request to charge in favor of all, and the court refuses the request, a general exception is una- vailing, if either proposition was erroneous, although a portion of them were sound in point of law. {Magee v. Badger, 30 Barb. 246 ; 34 If . Y. 247 ; Sun Association v. Tribime Association, 12 Jones & Sp. 136. But see Zabrishie v. Smith, 13 N. Y. 322, 338.) But where at the close of the evidence a series of propositions is presented, and the court does not include or refer to the points in his charge, and subsequently, on his attention being called to the omission, refuses to alter his charge, exceptions then taken separately to each request that the court did not charge, and a specific request as to each of the propositions, will bring up the error, if any, on appeal. {Betz v. Conner, 7 Daly, 550.) And where it appears that each offer or re- quest was separately made and passed upon, and each ruling excepted to, the exceptions will be held suflBciently specific. {Dunchel v. Wiles, 11 K Y. 420.) SECTION XXX. Delibeeation of the Juet. After the jury have been charged, they may render a verdict with- out leaving their seats ; but if they desire to deliberate on their ver- dict, as is usually the case, they should retire to the jury-room. An officer, specially designated to attend them, is sworn by the clerk, and takes charge of the jury during their deliberations. Taking papers to the jury-room. — The court may, in its dis- cretion, allow the jury to take to the jury-room any written docu- ment or paper which has been introduced in evidence. {Rowland V. Willetts, 9 JSr. Y. 170 ; Porter v. Mount, 45 Barb. 422, 428 ; Schappner v. Second Avenue R. R. Co., 55 id. 497. See Sanderson V. Bowen, 2 Hun, 153 ; Rardy v. Norton, 66 Barb. 527.) The jury cannot properly take to the jury-room any writing not received in evidence {Rewitt v. Morris, 5 Jones & Sp. 18), though, if they should do so, the misconduct is not necessarily fatal to their verdict- (See Sanderson v. Bowen, 2 Hun, 153 ; 4 N. Y. Sup. Ct. [T. & C] 675; O'Brien v. Merchants' Fire Ins. Co . , 6 Jones & Sp. 482 ; 48 How. 448 ; Dolan v. JStna Ins. Co., 22 Hun, 396 ; Schwppner V. Second Ave. R. R. Co., 55 Barb. 497, 502.) Minutes of the 31 p^"-- 2tl:2 Trial Practice. Communications between judge and j ury — Interference witli deliberations of jury. trial cannot he taken out by the jury without the consent of counsel {iVeil V. Ahel, 24 Wend. 185 ; Durfee v. Eveland, 8 Barb. 46) or used by them, if found in the jury-room, without such consent. {Mitchell V. Carter, 14 Hun, 448.) But a party cannot object that the jury took with them, at his request, a memorandum made by himself. {Hewitt v. Morris, 5 Jones & Sp. 18.) Where the jury are to pass upon specific questions of fact, it is customary to submit to them a series of written questions, which they take with them to the jury-room and answer affirmatively or nega- tively as they may determine. So where the jury are to make a computation in arriving at their verdict, they may be allowed to take with them a memorandum of dates and amounts established by the evidence. (But see Drew v. Andrews, 8 Hun, 23.) Communications between the judge and jury. — If, after the jury have retired to deliberate on their verdict, it becomes necessary that there should be any communication between them and the judge, they should be brought back into the court-room for that purpose. (See Drew v. Andrews, 8 Hun, 23.) After the jury have gone from the bar to deliberate, there ought to be no communication be- tween the judge and the jury in relation to the oral evidence or his instructions to them, iinless it take place openly in court or with the express assent of the parties. ( Watertown, Bank and Loan Go. V. Mix, 51 N. Y. 558, 561 ; Plunkett v. Appleton, 9 Jones & Sp. 159.) If such communication is sent, or such instructions are given to the jury in the jury-room without the consent of counsel, the verdict may be set aside (Id. See Moody v . Pomeroy, 4 Denio, 115 ; Taylor v. Betsford, 13 Johns. 487), unless the irregularity has been waived by a failure to object. (See Mahoney v. Decker, 18 Hun, 365. See, also, Oillott v. Jackson, 9 Jones & Sp. 308.) But if the jury return into court and ask for instruction, the court may give it, even in the absence of a party and his attorney. {Chap- man V. Chicago and North-western Railway Co., 26 Wis. 295 ; 7 Am. Rep. 81.) Interference with the deliberations of the jury, — The stal ute makes it a misdemeanor for a juror to make any promise or agree- ment to give a verdict for or against any party, or to willfully re- ceive any communication, book, paper, instrument or information, relating to a cause or matter pending before him, except accord- Delibeeation of the Jukt. 243 Mode of arriving at tlie verdict. ing to the regular course of proceeding upon the trial of the cause. (Penal Code, § T3 ; 3 R. S. [7th ed.] 2518, § 17.) It also makes it a misdemeanor to influence or attempt to influence improperly a trial juror in respect to his verdict (Penal Code, § 75), or for the officer having charge of the jury to negligently or willfully permit them, or any of them, without leave of the court, to receive any communication from any person ; to make any communication to any person ; to obtain or receive any book or paper, or refreshment, or to leave the jury-room. (Id. § 77. See, also, Id., §§ 7-i, 76.) A juror may also be punished by fine and imprisonment, or either, as for contempt, for improperly conversing with a party to an action to be tried at the term at which he has been notified to attend, or with any other person in relation to the merits of that action, or for re- ceiving a communication from any person in relation to the merits of such action without immediately disclosing the same to the court. (Code of Civ. Pro., § 14, subd. 6.) The least intermeddling or improper interference with the jury or any of them by the successful party (See Baker v. Simmons, 29 Barb. 198, 199 ; Reynolds v. Champlain Trans. Co., 9 How. 7), if it amounts to more than a mere indiscretion (See Gale v. N. Y. G. iS; H. R. R. R. Co., 53 How. 385, 394; 13 Hun, 1), wiU be a ground for setting aside a verdict. But if the interference is by a person other than a party, and it is clear that no harm has resulted from it, the verdict will not be disturbed. {Nesmith v. Clinton Fire Ins. Co., 8 Abb. 141. See Eager v. Eager, 38 Barb. 92, 102.) The civil remedies of a party for misconduct of the jury while deliberating on their verdict, or for the unlawful interference or in- termeddling of a party or of a third person with the jury while so deliberating, will be noticed elsewhere. Mode of arriving at the yerdict. — A jury, in arriving at their verdict, are supposed to be guided by the evidence produced before them as to the facts, and by the charge of the judge as to the law of the case, and by an intellectual process of combining the facts and the law to determine which party should recover, and the amount of the recovery. They cannot properly determine by lot which party shall have their verdict {Mitchell v. Ehle, 10 Wend. 595), nor sub- stitute a general average of the amount the individual jurors deem the party should recover {Earvey v. Rickett, 15 Johns. 87 ; Roberts 241 Teial Peaotioe. Keeping jury together to induce agreement, etc. — AsBessment of damages. V. Failis, 1 Cow. 238), or a general average of the sums sworn to by the several witnesses {Thomas v. Dickinson, 12 N. Y. 364) for their judgment upon the matter, and present the sum so arrived at as their verdict. But if such average is resorted to merely as a means of arriving at a reasonable measure of damages, without binding the jurors by the result, and the jurors afterward adopt the result as their verdict, it may be allowed to stand. (See Dana v. Tucker, 4 Johns. 487 ; Conklin v. Hill, 2 How. 6.) Keeping jury together to induce agreement, etc. — It is en- tirely proper for the trial court to urge an agreement of the jury to a reasonable extent, and to earnestly and repeatedly present all proper arguments to induce them to agree upon a common result. {Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, 298 ; Oreen V. Telfair, 11 How. 260, 262.) But the jury should be left to feel that they act with entire freedom in their deliberations, and should they continue to disagree, they are not to be exposed to unreason- able inconveniences, nor to receive the animadversions of the court. (Id.)_ A judge may keep the jury together so long as in his judgment there is any reasonable prospect of an agreement, but beyond this he is not at liberty to go ; and he should not allude to his own purposes as to the time they are to be kept together {Green v. Telfair, 11 How. 260. See Pierce v. Fierce, 38 Mich. 412. But see Erwin v. Hamilton, 50 How. 32), nor should he inform them that they must agree, and that he cannot discharge them until they have agreed upon a verdict. {Slater v. Mead, 53 How. 57. See Huntoon v. Russell, 50 id. 154.) If the jurors cannot agree after being kept together for such a time as is deemed reasonable by the court, the court may discharge them and order another jury to be drawn, and the same proceedings must be had before the new jury as if it was the jury first impaneled. (Code of Civ. Pro., § 1181.) Assessment of damages. — In an action to recover a sum of money only, if a verdict is found either in favor of the plaintiii, or in favor of a defendant who has set up a counter-claim for a sum of money, the jury must assess the amount of damages. (Code of Civ. Pro., § 1183.) The jury may also, under the direction of the court, assess the amount of the damages, where the court directs judgment The Yeedict. 245 Directing a sealed verdict — The verdict. for the plaintiff on the pleadings. (Id.) Where double, treble, or other increased damages are given by statute, single damages only are to be found by the jury, except in a case where the statute pre- scribes a different rule. The smnso found must be increased by the court, and judgment rendered accordingly. (Id., § 1184.) Directing a sealed verdict — When the jury are likely to be absent for some time, and the business of the Circuit has been com- pleted for the day, it is usual to direct the jury, when they have agreed upon a verdict, to seal it, and bring it into court the next morning. In most of the reported cases in this State, where sealed verdicts have been rendered, the direction of the judge to the jury to seal their verdict was given by the consent of the parties. (See Jioot V. Sherwood, 6 Johns. 68 ; F'ox v. Smith, 3 Cow. 23 ; Douglass V. Toucey, 2 Wend. 352 ; Biin v. Hoyt, 3 Johns. 255 ; Jackson v. Hawks, 2 Wend. 619.) That such direction is proper when the parties assent, and the circumstances require it, is beyond dispute. ( Warrier v. New York Cent. R. R. Co., 52 IST. Y. 437, 440.) And it has long been the practice to give such direction whether the parties assent or not. {Green v. Bliss, 12 How. 428 ; Sutli'ff v. Gilbert, 8 Ohio, 405 ; Sargent v. State, 11 id. 472 ; State v. Engle, 13 id. 490.) When such direction is given the several jurors should sign the verdict, when agreed upon (See Green v. Bliss, V2i How. 428, 433), seal it up, and bring it into court upon the following day. SECTION XXXI. The Yekdict. When the jury have agreed upon a verdict, they return into the court-room, to publicly announce it. If any cause is then on, pro- ceedings in that cause are usually suspended until the verdict in the prior case has been rendered. The jury are then asked by the clerk if they have agreed upon their verdict, and if so, for whom they find. The foreman of the jury then pronounces the verdict if it is oral, or hands it up to the clerk to be read if it is in writing. The clerk then enters it upon the minutes, and then calls upon the jury to listen to their verdict as it has been recorded by the court. He then reads the record or entry in his minutes and puts the further query, " Gen- tlemen of the jury, is that your verdict ? " and if no dissent is made, 246 Teial Pkaotice. Correcting verdict. he concludes, "So say you all." If the jury remain silent, or acquiesce in the verdict by sign or sound, and no question by the court or either party is made, the jury are discharged from the fur- ther consideration of that case. Then the verdict becomes a fixed legal fact, and may not afterward be altered in form or substance by court, or jury, or ofl&cer. ( Warner v. New York Cent. £. H. Co., 52 N. T. 437.) Correcting verdict. — Until the jurors have been dismissed from the further consideration of the case as above stated, and have ceased to occupy the relation of jurors to it, their power over their verdict remains, and their right to alter it so as to conform to their real and unanimous intention and purpose. ( Warner v. New Yorh Gent. li. B. Co., 52 N. T. 437.) It is well settled that the jury after giving in a verdict may, before it is recorded, be sent back to recon- sider it, not only to correct a mistake in form, or to make that plain which was obscure, but to alter it in substance if they so determine and agree. {BlacTcley v. Sheldon, 7 Johns. 32 ; Goodwin v. Apple- ton, 22 Me. [9 Shep.] 453 ; Hegeman v. Gant/rell, 8 Jones & Sp. 381 ; Sutliff V. GilheH, 8 Ohio, 405 ; Wolpau v. Eyster, 7 Watts, 38.) So where the jury have been authorized to bring in a sealed verdict, have found it, put it in writing, sealed it, separated, and have returned into court on the next morning and given it in, the court may, of its own motion, direct them to retii'e again and reconsider it, if it is defective. ( Warner v. New Yorh Cent. JR. JR. Co., 52 N. T. 437, 441 ; Tyrrell v. Lookhart, 8 Blackf. 136 ; Sutliff v. Gillert, 8 Ohio, 405 ; BlaoTcley v Sheldon, 7 Johns. 32.) So a witness may be re-examined before them, or the testimony already taken may be read to them, or further instructions may be given them by the court on some point of law not before made clear, or not before raised. ( Warners. New York Gent. R. JR. Co., 52 N. Y. 437, 441 ; Henlow V. Leonard, 7 Johns. 200.) The language of the cases is that the verdict may be reconsidered at any time before the verdict is " recorded." This means something more than an entry by the clerk in the rough minutes at the time of receiving the verdict. The right exists, as has been stated, until the jury have had an opportunity to dissent from the verdict entered by the clerk, and have expressly or tacitly assented to it, and been discharged by the court. (See Ante. See JRegina v. Yodden, 22 Law & Eq. 596 ; Ward v. Bailey, 23 Me. 316.) The Yeediot. 247 Correcting verdict — polling the jury. If the foreman of the jury, by mistake, announces a verdict dif- ferent from that agreed upon by the jury, and this is entered in the minutes as their verdict, the court has power to correct the record so as to make it conform to the actual finding, upon an application made the same day, and at the same Circuit, based upon affidavits of all the jurors setting forth the facts, or he may deny the motion and grant a new trial. {Dalrymple v. Williams, 63 N . T. 361 ; 20 Am. Eep. 544. See Burhans v. Tibbits, 7 How. 21 ; Wells v. Gox, 1 Daly, 615.) The rule excluding the affidavits of jurors to show a mistake or em r committed by them in respect to the merits, or irregularity or misconduct on their part, or that they mistook the effect of their verdict and intended something different (See Olum v. Smith, 5 Hill, 560 ; Williams v. Montgomery, 60 E". T. 648 ; Mitcfiell v. Carter, 14 Hun, 448 ; Thomas v. Chapman, 45 Barb. 98 ; Ex parte Cuyhendoll, 6 Cow. 53 ; People v. Coluinbia Com. Pleas, 1 Wend. 297) does not apply to such an application. {Dalrymple v. Williams, 63 1&. T. 361. See, also, Sargeant v. , 5 Cow. 106 ; Jackson V. Dickenson, 15 Johns. 309 ; Cogan v. Ehden, 1 Burr. 383 ; Rohers V. Hughes, 7 M. & W. 399 ; Dayton v. Church, 7 Abb. N. C. 367.) "While the court may direct the jury to retire and correct a ver- dict which is imperfect in substance or form when it is presented to the court, it cannot be amended by the court in a matter of sub- stance after it has been received and recorded {Her-zberg v. Murray, 8 Jones & Sp. 271) ; and after the verdict has been received and entered on the minutes, and the jury have been dismissed, they can- not be reassembled to alter their verdict. ( Waters v. Jenkins, 16 Serg. & R. 414 ; Warner v. New York Cent. E. R. Co., 62 N. Y. 437, 443.) Polling the jury. — When the jury come to the bar to deliver their verdict and until it has been received and recorded, all or any of them may dissent from the verdict to which they had previously agreed, whether it is oral or written ; and while the right to dissent exists, either party may insist that each juror shall be separately ex- amined as to his concurrence in the verdict. ( Warner v. New York Cent. R. R. Co., 52 K T,43T; Labarv. Koplin,^iA. 547; Blakely V. Sheldon, 7 Johns. 32 ; Fox v. Smith, 3 Cow. 23 ; Root v. Sher- wood, 6 Johns. 68 ; Jackson v. Hawks, 2 Wend. 619 ; Green v. Bliss, 12 How. 428.) This is called polling the jury. The object of polling the jury is to ascertain if the verdict which has just been 248 Teial Peaotioe. Entering the verdict — General and special vtrdicts. presented or announced by their foreman is their verdict, or in other words, if they still agree to it. This is performed by the clerk, who, as he calls over the list of jurors, asks them, one by one, " Is this your verdict ? " Each individual juror may then assent to or dissent from the verdict as his conscience or judgment dictates. If aU assent, the verdict becomes final ; but if any dissent, the jury must either be sent back to reconsider their verdict, or must be discharged. ( Weeks v. Hart, 24 Hun, 181 ; Root v. Sherwood, 6 Johns. 68, and cases above cited.) If, on polling the jury, the answer of any juror is ambiguous or evasive and does not declare his assent to the verdict presented, it is the duty of the counsel to call attention to the fact and to insist upon the proper answer. (See Green v. Bliss, \ 2 How. 428, 433.) But beyond this the party at whose instance the jury is polled has no right to dictate as to the manner in whicli it shall be done, nor insist on any question being put to the jurors other than the simple one whether they agree to the verdict as presented. {Lahar v. Koplin, 4 N. T. 547 ; Leighton v. People, 10 Abb. N. C. 261 ; Mitchell v. Pa/rhs, 26 Ind. 354.) Entering the verdict. — The Code prescribes that when the jury renders a verdict, or finds upon one or more specific questions of fact, stated under the direction of the court, the clerk must make an entry in his minutes, specifying the time and place of the trial ; the names of the jurors and witnesses ; the verdict or the questions and findings thereon as the case requires ; and the direction, if any, which the court gives, with respect to the subsequent proceedings. (Code of Civ. Pro., § 1189.) A special verdict or special finding must be filed with the clerk and entered in his minutes. (Id. , § 1187.) These entries are usually made at the trial in a book of rough minutes, and are afterward transcribed into a book provided for that purpose and become part of the records of the court. General and special verdicts. — A general verdict is one by which the jury pronounces generally upon all or any of the issues in favor either of the plaintiff or of the defendant. A special verdict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereupon. (Code of Civ. Fro,, § 1186.) In an action to recover a sum of money only, or real property, or a chattel, the jury may lender a general or special verdict in its dis- The Veediot. 249 General and special verdicts — In replevin. cretion. In any other action, except where one or more specific questions of fact stated under the direction of the court are tried by a jury, the court may direct the jury to find a special verdict upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specifically upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing, must be filed with the clerk and entered in the minutes. (Id., § 1187.) Where a special finding is inconsistent with a general verdict, the former controls the latter and the court must render judgment accordingly. (Id., § 1188.) Where an isolated fact involved in an action is, by consent of par- ties, submitted to the jury, and the jury find thereon, such finding is not a special verdict. (Garr v. Garr, 52 N. Y. 251.) A special verdict must contain all the facts necessary to sustain a judgment, so as to leave nothing for the court to determine except questions of law. {Casey v. Dwyre, 15 Hun, 153 ; Langley v. Warner, 3 IST. Y. 327; EUl v. CoveU, 1 id. 522. And see Garr v. Oarr, 52 id. 251, 256 ; People v. Dutchess c6 Cohimlia R. B. Co., 58 id. 152, 166.) It must contain the facts and not the evidence of the facts. (Lang- ley V. Warner, 3 N. Y. 327 ; Bill v. Govell, 1 id. 522 ; Seward v. Jackson, 8 Cow. 406.) But it is not necessary that it should contain .facts admitted by the pleadings. {Barto v. Hitrirod, 8 N. Y. 483 ; Jones V. BrooJdyn Life Ins. Co., 61 id. 79, 84.) Where specific questions have been submitted to the jury, and they are unable to agree thereon, they may, nevertheless, return a general verdict {Murray v. New York Life Ins. Co., 30 Hun, 428), unless the right of the party to the general verdict depends upon some one or all of the questions upon which the jury have failed to agree. {Ebersole v. Northern Central R. R. Co., 23 Hun, 114.) So if specific questions of fact, covering all the issues as to which evidence has been given on the trial, are submitted to the jury for special finding in connection with their general verdict, and the jury, without rendering a general verdict, simply answer the specific questions covering the contested issues, the entry of judg- ment thereon is, at most, a mere irregularity, not authorizing a re- versal of the judgment. {Jones v. Brooklyn Life Ins. Co., 61 IST. Y. 79. But see Manning v. Monaghan, 23 id. 539.) In replevin. — In respect to the verdict in an action to recover the possession of a chattel, the Code provides as follows : "The ver- 32 250 Teial Peaotioe. In replevin — In ejectment. diet, report or decision, must fix tlie damages, if any, of the prevail- ing party. Wlien it awards to the plaintiff a chattel which has not been replevied, or where it awards to the prevailing party a chattel which has been replevied and afterward delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the next section, fix the value of the chattel at the time of the trial." (Code of Civ. Pro., § 1726.) " A verdict, report, or decision, in favor of the defendant, shall not fix the value of the chattel, in either of the following cases : " 1. Where the plaintiff is the general owner of the chattel ; but it was rightfully distrained doing damage, and its value is greater than the damages sustained by the defendant, by the injury for which it was distrained ; in which case, those damages must be fixed. " 2. "Where the plaintiff is the general owner of the chattel, but the defendant had a special property therein, and the value of the chattel is greater than the value of the special property, or the sum charged upon the chattel by reason thereof, in which case the value of the special property, or the sum so charged, must be fixed. " In either of the cases specified in this section, the verdict, re- port or decision must set forth the reason why the value of the chattel is not fixed." (Id., § 1727.) " Where the action is brought to recover two or more chattels, the verdict, report or decision may award to one party one or more distinct chattels, which can be identified, and set apart from the others, and the residue to the other party ; and, if necessary, the complaint must be amended so as to conform thereto. The final judgment, rendered thereupon, must award to each party the same relief, with respect to the finding in his favor, as if separate judg- ments were rendered ; except that, where each party is entitled to an absolute award of a sum of money, against the other, the smaller sum must be deducted from the greater, and the balance only must be awarded." (Id., § 1728.) In ejectment. — In an action to recover real property or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover damages for withholding the property. (Code of Civ. Pro., § 1496.) Those damages include the rents and profits, or the value of the use and occupation of the property where either can legally be recovered by the plaintiff. (Id., § 1497.) If the action is founded upon the non-payment of rent (Id., §§ 1604, Motion fob a New Teial. 251 lu action to determine claim to real property — Motion for a new trial. 1505), and the plaintiff succeeds in the action, the verdict must fix the amount of rent in arrear. (Id., § 1507.) In aU cases, the verdict for the plaintiff in an action of ejectment must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee. (Id., § 1519.) If the right or title of the plaintiff has expired after the commencement of the action, but before the trial, and he would have been entitled to recover but for the expi- ration, the verdict must be rendered according to the fact, and the plaintiff is entitled to judgment for his damages for the withholding of the property to the time when his right or title so expired. (Id., § 1520.) In action to determine claim to real property. — The pro- visions of the Code in respect to the verdict to be rendered in an action of ejectment apply also to the verdict in an action brought to determine a claim to real property, except as hereafter stated. (Code of Civ. Pro., § 1C42.) Where an action is brought to compel the determination of a claim to real property, and the defendant claims the property in question, or any part thereof by virtue of an estate in remainder or reversion, he need not establish a right to the immediate possession thereof, but where the verdict finds that he has such an estate, it must specify the time when, or the contingency upon which he will be entitled to possession, and final judgment to that effect must be rendered accordingly without damages. (Id., § 1643.) SECTIOlSr XXXII. Motion foe a New Teial. After the jury have returned into court and rendered their verdict, one of the first questions to be determined by the defeated party is whether he desires to review their findings in an appellate court. If he does, he must make a motion to set aside the verdict on the evi- dence, and for a new trial, either to the judge at the Circuit, or his minutes, pursuant to section 999 of the Code of Civil Procedure, or to the court at Special Term, pursuant to section 1002 of that act. This is necessary for the reason that no appeal on the i'A.ci^from, the judgment, lies to the General Term where the trial is by jury ( Wright 252 Teial Peactice. Motion for a new trial — Proceedings to perfect the right to costs. V. Hunter, 46 IST. T. 406 ; Boos v. World Mutual Life Ins. Co., 4 Hun, 133 ; 64 N. T. 236 ; Boslmick v. Ba/rlow, 14 Hun, 177 ; Ehr- man v. Rothschild, 23 id. 273), and that the only mode in which the General Term can acquire jurisdiction to review a case upon the facts, after such trial, is upon an appeal from an order made and entered denying a motion for a new trial. (Id. See Code of Civ. Pro., §§ 1346, 1347.) To authorize the General Term to reverse upon the facts, there must be an absence of any evidence to sustain the verdict. (Godfrey v. Moser, 66 N. Y. 250, 252 ; BostwioJcY. Bar- low, 14 Hun, 177, 178 ; Elirman v. Eothschild, 23 id. 273.) Exceptions taken upon the trial may be reviewed upon an appeal from the judgment rendered after the trial (Code of Civ. Pro., § 996), and therefore a motion for a new trial is not an indispensable pre- liminary to the presentation of the questions raised by the exceptions for review by the appellate court. But the judge presiding at the trial may, in his discretion, entertain a motion, made upon his min- utes, at the same term, to set aside the verdict and grant a new trial, upon exceptions, or because the verdict is excessive or for insufficient damages, or otherwise contrary to the evidence, or contrary to law (Id., § 999) ; or upon the application of a party who has taken one or more exceptions, the judge presiding at the trial may in his dis- cretion at any time during the same term direct an order to be en- tered that the exceptions so taken be heard in the first instance at the General Term, and that judgment be suspended in the mean time (Id., § 1000) ; or the party may move for a new trial at Special Term upon a case and exceptions. (Id., §§ 997, 1002.) The practice on these motions will be considered in a subsequent chapter. SECTION XXXIII. Pkoceedings to Peefeot the Eight to Costs. If the action tried before the jury is one in which the allowance of costs is in the discretion of the court (See Code of Civ. Pro., §§ 3229, 3230), the direction of the court for final judgment must specify which party or parties are entitled to costs, but the amount of the costs must be ascertained by taxation. (Id., § 3262.) Any direction given at the Circuit will be entered by the clerk in the minutes. (Id., § 1189.) Proceedings to Peefbot the Right to Costs. 253 Certificate aa to the right to costs. Certificate as to the right to costs. — The right of a party to recover costs may not depend entirely upon his success in the action ; or, although the right to costs may follow a recovery, the amount of costs to be awarded may depend upon the existence of other facts ; and although such facts may have appeared or have been established upon the trial, they may be unavailable for the purpose of affecting the right to costs, unless the proper evidence of such facts is pre- sented to the taxing officer. If the action which has just been ti-ied before the jury was origi- nally brought in a justice's or other inferior court and was then dis- continued on a plea of title being interposed, and the jury have rendered a verdict in favor of the defendant in the new action brought for the same cause, the defendant should apply to the trial judge for a certificate that the title to real property came in question on the trial, for otherwise the plaintiff will recover costs. (Code of Civ. Pro., § 3235.) A plaintiff in whose favor a verdict has been rendered in an action against a municipal corporation, in which the complaint demands judgment for a sum of money only, cannot recover costs in such action unless the claim upon which the action is founded was, be- fore the commencement of the action, presented for payment to the chief fiscal officer of the corporation. (Id., § 3245.) Similar pro- visions are often inserted in the charters of municipal corporations. These provisions do not apply to actions to recover unliquidated dam- ages arising ex delicto {MoOlure v. Board of Supervisors of Ni- agara Co., 4 Abb. [ISr. S.] 202 ; 50 Barb. 594 ; 33 How. 202 ; 3 Abb. Ct. App. 83 ; 4 Trans. App. 275 ; Quinlan v. City of Utica, 11 Hun, 217; 74 KY. 603; Howell v. City of Buffalo, 15 id. 512 ; McGaffiny. City of CoAoes, 11 Hun, 357; 74 N. Y. 387. See, also, Matter of Jetter, 78 id. 601 ; Newman v. Supervisors of Livingston Co., 45 id. 676); but where they do apply, and the fact that the claim was properly presented for payment appeared upon the trial, the plaintiff should apply to the trial judge for a certificate stating the fact, as the statute makes such certificate the only com- petent evidence as to the matter before the taxing officer. (See Code of Civ. Pro., § 3248.) Where a school officer or supervisor is defeated in an action brought against him on account of an act per- formed by him by virtue of or under color of his office, or on ac- count of a refusal or an omission to perform a duty enjoined upon Mm by law, and his act, refusal or omission might have been the 254 Trial Pkactioe. Certificate as to the right to costs. subject of an appeal to the Statesuperintendentof public instruction, he should apply to the trial judge for a certificate that it appeared upon the trial that the defendant acted in good faith. If such cer- tificate is given no costs can be awarded to the plaintiff in the action, unless the action was brought for a penalty or to enforce a decision of the superintendent. (Code of Civ. Pro., § 3244.) If the action was brought in the Supreme or Superior City Court against an executor or administrator in his representative capacity to recover a sum of money only, and the plaintiff has succeeded therein, he should obtain from the trial judge a certificate of the facts enti- tling him to costs, namely, that the plaintiff's demand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim as prescribed by law. (See Code of Civ. Pro., §§ 1835, 1836.) This certificate is preliminary to a motion at the Special Term for an order awarding costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent as the court may direct. (See Horton v. Brown, 29 Hun, 654 ; Smith v. Randall, 67 Barb. 377 ; Howe v. Lloyd, 2 Lans. 335 ; 9 Abb. [K S.] 257 ; Field v. Field, 77 N. Y. 294 ; Code of Civ. Pro., § 3246.) This motion is based upon affidavits as well as the certificate, and unless the execu- tor is charged with the payment of the costs personally he cannot be heard to complain that no certificate was procured from the trial judge or used upon the motion. {Meltser v. Doll, 91 N. Y. 365.) If the defendant succeeds in an action brought against him for acts done or omitted to be done as a public officer, or in aid of a public officer, or under color of authority of a statute of this State, and the facts entitle him to the increased costs given by section 3258 of the Code, he should apply to the trial judge for a certificate of the facts appearing on the trial entitling him thereto. In respect to granting this certificate the Code provides as fol- lows : " Where upon the trial of an action the title to real property comes in question, or any fact appears whereby either party becomes entitled to costs, or to the increased costs specified in section 3258 of this act, the judge presiding at the trial, or the referee must, at the application of the party to be benefited thereby, either before or after the verdict, report, or decision is rendered, make a certificate stating the fact. Such certificate is the only competent evidence as Peoceedings to Perfect the Right to Costs. 255 Motion for an additional allowance — Taxing costs. to the matter before the taxing officer. (Code of Civ. Pro., § 3248.) If the attorney for either party has refused before the trial to give to the opposing attorney a written admission of the genuineness of a paper, material to the action, subsequently proved or admitted on the trial, the party requesting the admission should prove the ex- pense incurred by him in establishing its genuineness and move that the same be paid to him by the adverse party. Such a direction will be made unless it is made to appear to the satisfaction of the court that there was a good, ground for refusing to make the admission. (See Code of Civ. Pro., § 735.) So if the written offer of the de- fendant to liquidate the damages at a specified sum has not been ac- cepted by the plaintiff and the damages awarded do not exceed the sum offered, the defendant should proceed to have the expenses necessarily incurred by him in preparing for the trial on the ques- tion of damages ascertained by the judge, and the proper direction made for the recovery of the amount. (Id., § 737.) Motion for an additional allowance. — A successful plaintiff, in an action tried before a jury, may be entitled not only to the or- dinary costs of the action, but also to the additional allowance given absolutely in certain actions by section 3252 of the Code of Civil Procedure. No application to the court is necessary to entitle the plaintiff to recover these costs if the value of the property upon which the statutory percentage is based is fixed by the verdict of the jury. If it is not so fixed, the value must be ascertained by the court. (Code of Civ. Pro., § 3262.) The additional allowance of costs which may be granted to either party under section 3253 of the Code is discretionary, and can be obtained only upon application to the court. Applications for an additional allowance can only be made to the court before which the trial is had, or the judgment rendered, and must in all cases be made before final costs are adjusted. (Gen. Pule 44.) The practice upon applications to the court in respect to costs will be noticed hereafter. Taxing costs • — The taxation of costs may precede or follow the entry of judgment. The successful party should make up his bill of costs and disbursements, specifying the items in detail, should have the several items of disbursements duly verified (See Code of Civ. Pro., § 3267), and should then either serve a copy of the 256 Teial Pkaotioe. Taxing costs. bill of costs and disbursements upon the adverse party with, notice of taxation (Id., § 3263),' or should have the costs taxed by the clerk, without notice, and immediately afterward serve a like notice of retaxation. (Id., § 3264.) The practice on taxation of costs will be noticed hereafter. CHAPTER V. TKIAL OF ISSUES OP FACT BY THE OOUET OR BY A EEFEREE, SECTION I. OcrTLiNES OF Peaotice on Trials by the Couet wtthotit a Juey. In the preceding pages of this work an attempt has been made to point out the cases in which an issue of fact arising in an action is triable by the court without a jury {cmie, p. 14) ; the place where and the term at which the trial must be had {ante, p. 23) ; the mode of bringing on the cause for trial {ante, p. 126), and the several matters to be considered or done in preparing for a trial, whether before the court, a jury, or a referee. The greater part of the rules of practice already laid down in respect to the trial of issues of fact by a jury are equally applicable to the trial of such issues by the court. The proceedings upon the default of either party at the trial {ante, p. 152); the proceedings upon the application of either party for the postponement of the trial {ante, p. 153) ; the mode of examining, cross-examining, re-examin- ing and impeaching witnesses {ante, p. 173), and the rules of prac- tice in respect to the introduction and exclusion of evidence, are substantially the same whether the trial is with or without a jury. But the mode of trial and the general course of procedure on the trial may be influenced by the nature of the action, or may depend upon the discretion of the judge holding the term. The parties may have waived a jury trial in a case where such trial is a matter of right with a view to having the action tried by the court, and when the cause is called for trial the court may either acquiesce in this disposition of the case and proceed to try it without a jury, or, notwithstanding the waiver, may refuse to assent to a trial without a jury ; and unless the action is brought to recover damages for a breach of contract, may send it to a jury for a trial. (Code of Civ. Pro., § 1008.) So when the cause is called for trial, if it appears that it is a referable case, the court may direct a reference of all the issues, whether the parties consent or not (Id., § 1013) ; or if it is triable by the court and also referable, the court may direct a refer- ence of a part of the issues and try the remaining issues without a 33 258 Teial Peactice. Outlines of practice on trials by the court without a jury. jury; or may direct a reference of specific questions of fact involved in the issues, and try the remaining issues with or without a jury as the case requires (Id., §§ 1013, 1014) ; or, in a proper case, may direct a trial of specific questions of fact by a jury, and may then either try the remaining issues or send them to a referee for trial. (Id., §§ 970-972.) The peculiar practice upon these several modes of trial will be noticed in subsequent sections. Except so far as the parties may demand a trial by jury of specific questions of fact under section 970 of the Code {ante, p. 63), all the issues of a non-referable action may be tried by the court with- out the aid of a jury or referee ; and even a referable action may be so tried unless, both parties agree to refer. {Ante, p. 14.) But the judge sitting at Special Term for the trial of equitable actions is not bound to pass upon every question necessary to the rendition of final judgment. He may, if he so elects, hear proofs and deter- mine a portion only of the issues, and after sending the case to a referee to take and report further proofs may again take it up, on the coming in of such report, either during the same or at a subse- quent term, and then, upon hearing counsel, render final judgment. {BeJmwnt v. Ponvevt, 3 Rob. 693.) So the trial may proceed before one judge, so far as to determine the rights of the parties, which will be declared in an interlocutory judgment ; a referee may be ap- pointed in and by such judgment to make a computation or to ascer- tain some fact necessary to the rendition of final judgment ; and on the coming in of the referee's report, another judge holding a Spe- cial Term may render the final judgment. {Chamberlain v. Dem/p- sey, 36 JST. Y. 144. But see Code of Civ. Pro., § 777.) It will be seen from the foregoing outline, that a trial before the court may not possess the continuous character of a trial before a jury, but on the other hand may proceed by successive stages, vary- ing in number or character according to the nature of the case. Ordinarily, when the cause is called for trial and the court makes no objection to trying it without the aid of a jury or referee, the parties open the case, present their proofs, and sum up the cause substantially as upon a jury trial. They then, or at such future time as the court allows, submit a written statement of the facts which they deem established by the evidence, and of the rulings upon tliu questions of law which they desire the court to make. (Code of Civ. Pro., § 1023.) The court then takes the papers iu the case for further consideration, passes upon the proposed find- Trial of Issues of Fact by the Couet ok by a Kbferee. 259 Judgment may be interlocutory or final. ings, and makes a written decision at some time within twenty days after the final adjournment of the term where the issue was tried. (Id., § 1010.) The decision will state separately the facts found and conclusions of law, will award or deny costs if they are discretionary, and will direct the judgment to be entered thereon. (Id., § 1022.) After the decision is filed, the successful party next proceeds to enter the appropriate judgment thereon, unless some fact must bo ascertained or some act done before such judgment can be entered. The judgment entered upon the decisioa may be either interlocu- tory or final. (Code of Civ. Pro., § 1200.) An interlocutory judg- ment is an intermediate or incomplete judgment, where the rights of the parties are settled, but something remains to be done, as for example, to take an account, to make a sale, to ascertain a question of damages, and the like. (See Cambridge Valley Nat. Bank v. Lynch, 76 N". Y. 514, 516.) The judgment will be interlocutory in an action for partition (Code of Civ. Pro., §§ 1546, 1547, 1549, 1560), in an action for dower (Id., §§ 1607, 1619), in an action to de- termine claims to dower in real property where the defendant's right is admitted (Id., § 1648), in an action to dissolve a copartnership where the existence of the copartnership is denied (See Palmer v. Palmer, 13 How. 363), and it may be either final or interlocutory, if in favor of the plaintiff, in an action by a joint tenant or tenant in common against his co-tenant for waste committed on the property held jointly or in common, according as the plaintiff elects to re- cover treble damages, or to have partition of the property. (Code of Civ. Pro., §§ 1656-1658.) If the action is for partition, and the defendant has made default in appearing or pleading, or if a party is an infant, the court must ascertain the rights, shares and interests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered. (Id., § 1545.) And before an interlocutory judgment for the sale of real property is rendered in such action the court must direct a reference to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party, nnless the fact that there is no such lien is shown as prescribed by the statute. (Id., § 1561.) A similar reference must be had be- fore an interlocutory judgment is rendered for the sale of the prop- erty in an action for dower. (Id., § 1621.) The practice on such references will be noticed hereafter. If ao reference is necessary as a preliminary to the entry of the interlocutory judgment, or if the 260 Trial Peaotioe. Interlocutory judgment. reference has been had, and referee's report made, filed and served, and either no exceptions have been filed thereto or the report has been confirmed (See Gen. Rule 30), the successful party should pro- ceed to enter the interlocutory judgment. If a further reference is required to carry the interlocutory judgment into effect, the referee must be appointed by the judgment, or by the court, upon motion, unless the appointment is for the purpose of settling the final judg- ment. (Code of Civ. Pro., § 1230.) If further proceedings, after entry of the interlocutory judgment, must be taken before the court, or a judge thereof, or a referee, before final judgment can be en- tered, the unsuccessful party may desire to review the proceedings already had by motion for a new trial, made at General Term (Id., § 1001), or by appeal (Id., § 1349), before such further proceedings are had. The attorney for the successful party should, therefore, cause a copy of the decision, with notice of the entry of the inter- locutory judgment thereupon, to be served upon the attorney for the adverse party for the purpose of limiting the time within which the latter must file exceptions as a preliminary to a motion for a new trial (See Id., § 1001), or the time within which the party must ap- peal. (See Id., § 1351.) If a motion for a new trial is made and denied, the order denying the motion is entered in the proper office, a copy of the ord&r and notice of the entry are then served upon the attorney for the unsuccessful party, and after the expiration of four days from the time of such service, the right to move for final judgment is the same as if the motion for a new trial had not been made. (Id., § 1227.) But as the interlocutory judgment requires that further proceedings should be taken before the court, judge or referee, before final judgment is entered, the next step is to dispose of these proceedings. If the further proceedings are before a ref- eree the matter must be brought to a hearing, the proofs taken, the account stated, or other matters determined as directed in the judg- ment or order of reference. The report must be filed or delivered to one of the parties within sixty days from the final submission of the matter to the referee (Id., § 1019), and a copy of the report, with notice of the filing of the same, must be served by the party bringing on the reference upon the adverse party for the purpose of limiting the time within which the latter may file exceptions. (See Gen. Rule 30.) If exceptions are filed within the next eight days they may be brought to a hearing at any Special Term thereafter on the notice of any party interested therein (Id.), or an application for PowEEs OF Referees, General Peactioe, etc. 261 Interlocutory judgment — Powers of referees, etc. a new hearing may be made upon affidavits. (Code of Civ. Pro., § 1232.) If no motion for a new hearing is made, or if it is denied, and all the matters preliminary to final judgment are disposed of, an application for such judgment may then be made as upon a mo- tion. (Id., § 1230.) If the interlocutory judgment stated the sub- stance of the final judgment to which the party would be entitled, the final judgment should follow the general directions given. If it directed that the final judgment be settled by a judge or referee, the judgment cannot be entered until a settlement thereof, sub- scribed by the judge or referee, is filed. (Id., § 1231.) After the judgment has been entered a copy of the judgment and written no- tice of its entry should be served upon the attorney for the adverse party for the purpose of limiting the time for appeal. (Id., § 1351.) If the case is one in which no interlocutory judgment is author- ized or required, final judgment is entered upon the decision accord- ing to its directions (Id., § 1228), and a copy of the decision and of the judgment, and written notice of its entry should be served upon the attorney for the unsuccessful party for the purpose of limiting the time for filing exceptions to the decision (Id., § 994), and of tak- ing an appeal from the judgment. (Id., § 13.51.) The various steps in the trial of a cause by the court, which have been briefly outhned in the foregoing pages, will be considered more in detail in subsequent sections. The proceedings, upon the taxation of costs, are the same whether the action be tried by the court, by a jury or by a referee, and will be considered in another chapter. (See Costs, post.) The same dis- position will be made of applications for a new trial. (See New Trial, post) SECTION II. Powers of Eefbeees, aud General Practice on a Eefeebnce of ALL THE Issues. The cases in which a reference may be ordered by consent {ante, p. 15) or against the objections of a party {ante, p. 16), the prac- tice upon the appointment of the referee {ante, p. 66), and the subsequent appointment of a time and place of trial {ante, p. 125) have been already noticed. The practice on a trial before a referee is so nearly identical with that on a trial by the court that a separate discussion would result 262 Tkial Peaotioe. Powers of referees, and general practice on a reference of all the issues. only in useless repetition. The tendency of recent legislation has been toward placing the referee in the place of the court in respect to the conduct of the trial, and to give to his report the effect of a decision of the court. The Code, after specifying the class of cases in which a referee may be appointed by consent of both parties, or against the consent of one of the parties, to hear and determine all or some of the issues ; or to report a finding upon one or more ques- tions of fact involved in the issue ; or to take an account ; or to determine and report upon a question of fact arising in any stage of the action, upon a motion or otherwise, except upon the pleadings, declares that a witness may be subpoenaed to attend before a referee so appointed to testify, and, in a proper case, to bring with him a book, document or other paper, as upon a trial by the court. (Code of Civ. Pro., § 1017.) It also provides that a trial by a referee of an issue of fact, or an issue of law, must be brought on upon like notice, and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the court without a jury ; that the referee exercises upon such trial the same powers as the court to grant adjournments, to preserve order, and punish the violation thereof ; that upon the trial of an issue of fact the referee exercises also the same power as the court to allow amendments to the summons, or to the plead- ings, to compel the attendance of a witness by attachment, and to punish a witness for contempt of court for non-attendance or refusal to be sworn or to testify; and that the powers so conferred are exer- cised in like manner, and upon like terms, as similar powers are exercised by the court upon a trial. (Id., § 1018.) These provisions of the statute overrule or render valueless numerous cases in which the powers of referees upon the trial have been discussed and limited. Wbere the reference embraces the whole issue of fact, and no other issue is to be tried, the report of the referee stands as a decision of the court (Id., § 1228) ; and if costs are in the discretion of the court, the referee may deny or award costs (Id., § 1022), but he has no power to grant an additional allowance. ( Osborn v. Betts, 8 How. 31 ; Howe V. Muir, 4 id. 252 ; Main v. Fope, 16 id. 271.) Where the reference is to more than one referee, all must meet together, and hear all the allegations and proofs of the parties ; but a majority may appoint a time and place for the trial, decide any question which arises upon the trial, sign a report, or settle a case. Either of them may administer an oath lO a witness ; and a majority Powers of Kefeeees, Geneeajl Praotioe, etc. 263 Oath of referee. of those present, at a time and place appointed for the trial, may ad- jom-n the trial to a future day. (Code of Civ. Pro., § 1026. See, also, Molnroy v. Benedict, 11 Johns. 402 ; Townsend v. Olens Falls Ins. Co., 10 Abb. [N. S.] 27Y; 1 Jones & Sp. 130.) Oath of referee. — Before proceeding to hear the testimony, the referee must be sworn faithfully and fairly to try the issues and to make a just and true report according to the best of his understanding. The oath may be administered by a judge, clerk, deputy clerk or spe- cial deputy clerk of a court, or by a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk or commis- sioner of deeds within the district in which such officer is authorized to act. But where all parties, whose interests will be affected by the re- sult, are of age, and are present in person or by attorney, they may ex- pressly waive the referee's oath. The waiver may be made by written stipulation or orally. If it is oral, it must be entered in the referee's minutes. (Code of Civ. Pro., § 1016.) The omission of the referee to take the oath before proceed- ing to take testimony in a case where all the parties are of full age, and present in person or by attorney, is at most a mere irregularity and not a jurisdictional defect. (^Wason v. Luddvng- ton, 56 How. 172 ; McGowan v. Newman, 4 Abb. N. C. 80.) And the omission of a referee to be sworn is not, in any case, a ground for setting aside a judgment entered upon his report. (Code of Civ. Pro., § 721 ; Eatt v. Germania Fire Ins. Co., 26 Hun, 429.) The referee derives his power from the order of the court, and may adjourn the cause, dismiss a complaint as fatally de- fective in substance, order judgment upon the pleadings, and do many other official acts without being sworn. So long as no wit- nesses are called, and no documentary evidence is offered, the referee need not take the oath. {JVason v. Luddington, 56 How. 172.) If the parties are all present, and of full age, a waiver of the oath may be implied from proceeding upon the reference without a de- mand that the referee bo sworn. {Nason v. Luddington, 56 How. 172. See, also, Whalen v. Board of Supervisors, 6 id. 278 ; Keator v. Ulster cfe Delaware Plankroad Go., 1 id. 41.) But where there are infant parties, or where there are parties not person- ally present, nor represented by counsel, the oath of the referee, where testimony is to be taken, cannot be dispensed with. There 264: Trial Peaotice. Stipulation as to fees — Judgment, etc. — Nonsuit or dismissal of the complaint. can be no waiver by one who is incapable of giving consent, or by one who is not represented and knows nothing of the irregularity. {JYason v. Luddington, 56 How. 172.) The failure of the referee to be sworn in such case is a ground for setting aside his report. {Browning v. Marvin, 5 Abb. K. 0. 285 ; Exchange Fi/re Ins. Co. V. Early, i id. 78.) Stipulations as to fees. — If it is proposed that the referee shall receive more than the statutory fees for his services in the cause, the attorneys for the several parties, at or before the commencement of the trial or hearing, should either stipulate in writing that the referee may charge a specified sum per day {Chase v. James, 16 Hun, 14; Code of Civ. Pro., § 3296. ^ee First Nat. Banh of Cooperstown v. Tamajo, 17 Hun, 241 ; 77 N. T. 476), or should orally agree upon a specified sum per day and have such agreement entered in the minutes. (Code of Civ. Pro., § 3296.) The attor- neys for the several parties have the power to bind their clients by such stipulation or agreement. {Mark v. City of Buffalo, 87 IST. Y. 184.) But a stipulation that the referee fix his own fees will not have that effect. {First JSfat. Banh of Cooperstown y. Tamajo, 17 Hun, 241 ; 77 N. T. 476 ; Chase v. James, 16 Hun, 14.) Judgment for the plaintilf on the pleadings. — If the answer interposed by the defendant does not contain facts sufiicient to con- stitute a defense and admits all the facts necessary to enable the plaintifi' to recover, the plaintiff, before any evidence is offered, may move for judgment on the pleadiuj^s, and the referee may make his report directing judgment for the plaintiff. {Schuyler v. Smith, 51 jST. Y. 309.) The referee may, however, wait until the defendant offers proof, and then, upon the objection of the plaintiff, reject the proof; but the other course is preferable. (Id.) If the defendant asks to amend, the question whether the amendment should be granted, and if so, upon what terms, will present another question to be considered in connection with the application for judgment. Nonsuit or dismissal of the complaint. — On a hearing before referees, the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited, or his complaint may be dismissed in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision. In which case Powers of Refeeees, Geneeal Peacticb, etc. 265 Adjournment of trial — Defaults, and refusals to proceed — Amendments. the referees shall report according to the fact, aad judgment may thereupon be entered by the defendaut. (Gen. E.ule 30.) (For the practice on voluntary or compulsory nonsuit, see ante, p. 216.) When the parties appear for trial, and before any testimony is taken, the defendant may move for a dismissal of the complaint upon the ground that it does not state facts sufHcient to constitute a cause of action ; and, if the motion is well founded, a dismissal will be proper. {Coffin v. Reynolds, 37 N. T. 640.) Adjournmeiits of the trial. — Upon the trial of an issue of fact the referee exercises the same power as the court to grant adjourn- ments (Code of Civ. Pro., § 1018), and to impose the payment of costs and disbursements as a condition of granting the adjournment. (Id., § 3255.) Unfortunately, referees seldom impose costs as a con- dition of an adjournment, or require the parties to make the proof necessary to entitle them to a postponement of the trial. This is in direct violation of section 1018 of the Code, which provides that " the powers conferred by this section are exercised in like manner and upon like terms as similar powers are exercised by the court upon a trial." The ease with which parties have obtained postponements of hearings before referees has made that form of trial so tedious, burdensome and expensive as to bring it into disrepute with litigants. Defaults^ and refusals to proceed. — A referee has power to dismiss the plaintiff's complaint on his failure to appear at the time and place of hearing, or on his failure after appearance to proceed with the trial, or after having given testimony, on his refusal to proceed and close the case. {Morange v. Meigs, 54 N. Y. 207. See Stephens v. Strong, 8 How. 339 ; Sage v. Mosher, 17 id. 367 ; M^Inroy v. Benedict, 11 Johns. 402.) Amendments. — The Code declares that upon the trial of an issue of fact the referee exercises the same power as the court to allow amendments to the summons, or to the pleadings. (Code of Civ. Pro., § 1018.) But it also declares that the power is to be exercised in like manner and upon like terms as similar powers are exercised by tlie court upon a trial. (Id.) In other words, the power to allow amendments conferred upon the referee is the same as the power of the court at the Circuit, and not the power of the court at Special Term. {Chittenango Cotton Co. v. Stewart, 67 Barb. 423.) 34 266 Teial Peaotiob. Amendments. (For the power of the court at Circuit, see ante, p. 209.) If an amendment becomes necessary which only the Special Term can grant, the referee may suspend the trial, or grant an adjournment to allow the application to be made to the court. (Id.) The power to amend the summons, or any pleading, by adding the name of a party who has been duly brought in, but whose name has been omitted by mistake or otherwise, is conferred upon referees as well as the court ; but the power to order a new party to be brought in is vested in the court alone. {Nexoman v. Marvin, 12 Hun, 236.) If it appears upon the hearing of an equity action that some person, not a party, is a necessary party without whose presence a complete determination of the controversy cannot be had, the referee should order the cause to stand over for the purpose of allowing the plaint- iff to apply at Special Term for leave to bring in such person as a party ; and, if the plaintiff neglects or refuses to bring in the neces- sary party, the referee may dismiss his complaint without prejudice to the right to bring another action. {Peyser v. Wendt, 87 N. Y. 322.) A referee has no power to amend a complaint on the trial so as to change the cause of action from one for equitable relief to one for ejectment [Bocikes v. Lansing, 74 N. Y. 437), or to allow any other amendment which would substantially change the cause of action or defense. {Joslyn v. Joslyn, 9 Hun, 388. See Knapj> v. Fowler, 30 id. 512.) But he may allow an amendment of the complaint so as to include a sum established upon the trial, but not embraced in the pleadings, though not asked for until the submission of the case, upon the condition that the plaintiff stipulate that the defend- ant recover the cost of the action. (Coates v. Donnell, 16 Jones & Sp. 46.) The power of the referee in respect to the terms upon which an amendment shall be allowed is commensurate with that of the court. If the amendment sought is not to be allowed as of course, but as a favor, tlie referee may or may not grant it in his discretion; and if he grants it he may annex as a condition that the other party shall have relief which the referee would be powerless to grant in a direct application therefor. The party seeking the amendment has his election to accept it on the terms imposed, or to reject it utterly; but he cannot accept the favor and disregard or reject the terms. {Smith v. Rathhun, 75 N. Y. 122.) (As to amendments upon the trial generally, see ante, p. 209.) Objections to the Admission of Evidence, etc. 267 Objections to tlie admission of evidence and exceptions to rulings on the trial. SECTION III. Objections to the Admission of Evidence and Exceptions to KULINGS on the TeIAL. In enacting the Code the legislature evidently intended to assimi- late the practice on trials before single judges without a jury, and by referees to trials at the Circuit before a jury as far as practicable, and to secure to litigating parties the same rights of exception and review as far as possible. (See LeJjUer v. Field, 33 How. 385.) Parties take objections to evidence and take exceptions to rulings on the trial in the one case precisely as in the other. (Id.) But upon trials before referees a practice has grown up to some extent of re- ceiving evidence offered under objection, and of reserving the de- cision as to its admissibility until some future time, which is gener- ally the time of making up the report, and of explicitly stating in the report the referee's decision upon the question raised. If the referee, affer the case is submitted, overrules the objection and con- siders the evidence, the party objecting to it is, by this practice, to have the benefit of an exception. If, on the other hand, he sustains the objection and rejects the evidence, the party offering it is to have the benefit of au exception. This practice is not regarded with favor by the courts. {Shar_pe v. Freeman, 45 N. T. 802 ; Berrian V. Sanford, 1 Hun, 625; 4 N. T. Sup. Ct. [T. & C] 655 ; Cluss- mcm, V. Merkel, 3 Bosw. 402 ; Lathrop v. Bramhall, 5 W. Y. Sup. Ct. [T. & C] 680; 3 Hun, 394; 64 K T. 365; Waggoner y. Fvnch, 1 N. T. Sup. Ct. [T. & C] 145.) If the party objecting to evidence insists upon the immediate decision of the question thereby presented, the referee ought not to receive the evidence under the objection, and reserve his decision upon the question of its admissibility until he makes up his report. {Peck v. Tories, 47 Barb. 131.) He ought, at least, to make his final ruling, receiving or rejecting the evidence before closing the case, and advise the parties, so that an exception may be taken. {Berrian v. Sanford, 1 Hun, 625 ; 4 N. T. Sup. Ct. [T. & Cl 655.) But though the party insists that the referee shall decide finally upon the admissi- bility of the evidence where it is offered, and excepts to the refusal of the referee to then determine wb ether he will receive or reject it as evidence in the case, such refusal and exception will not necessa- rily lead to a reversal of the judgment, unless it appears in some 268 Trial Peaoticts. Bringing in new parties. way from the case that the objecting party was or may have been legally prejudiced by such refusal. {Lathrop v. Bramhall, 64 N. y'. 365 ; Kerslahe v. Schoonmaker, 3 IST. Y. Sup. Ct. [T. & C] 524 ; 1 Hun, 436.) And if the party fails to object to the course of the referee in reserving his decision upon the admissibility of the evidence, he will be deemed to have assented thereto. (Cla/rh V. Donaldson, 3 Hun, 224 ; 5 IST. Y. Sup. Ct. [T. & C] 683 ; 64 N. Y. 631 ; Trimmer v. Trimmer, 90 id. 675 ; Holden v. New Torh (& Erie Bcmh, 72 id. 286.) Where testimony is offered which is objected to, but admitted by the referee notwithstanding the objection, the presumption is that, as the referee has held the evidence not only to be competent but material, it may have had an influence upon his findings. {Smith v. 8miih, 1 N. Y. Sup. Ct. [T. & C] 63; ChandUr v. AlUn, 20 Hun, 424.) There is no distinction between legal and equitable actions, or be- tween actions tried by a jury, by the court, or by a referee in respect to the availability of exceptions taken upon the trial to the ad- mission of incompetent evidence ; in any case, an error in receiving such evidence, if properly excepted to, can only be disregarded when it can be seen that it could do no harm , {JPbote v , Beecher, 78 N. Y. 155.) SECTION IV. Bkinging in ISTew Paeties. In legal actions a plaintiff cannot be compelled to sue any person except such as he may elect to sue ; and if he cannot recover at the trial upon the case made by him, he must be nonsuited, or should have a verdict against him. ( Webster v. Bond, 9 Hun, 437 ; Peo- ple V. Albany & Vermont R. It. Go., 15 id. 126.) But in equity a bill is never dismissed for want of parties, and when the lack of parties appears, the cause is allowed to stand overuntil the necessary parties are brought in, or at least until the plaintiff has had an op- portunity to bring them in. Formerly a court or referee had a dis- cretion whether to dismiss the complaint for want of parties with- out prejudice to a new action for the same cause, or to allow the cause to stand over. {Sherman v. Parish, 53 N. Y. 483 ; Van Epps V. Van Deusen, 4 Paige, 64.) But the Code now makes it the imperative duty of the court to direct the proper parties to be brought Beinqing in New Paktiks. 269 Provisions of the Code in relation to bringing in new parties. in where a complete determination of the controversy cannot be had without their presence. (See Green v. Milbanh, 3 Abb. N. C. 138, 156 ; Newman v. Marvin, 12 Hun, 236, 238 ; Shaver v. Brainard, 29 Barb. 25. See Miller v. Hall, 8 Jones & Sp. 262 ; 70 N. Y. 250.) The Code provides as follows : " The court may determine the controversy before it, when it can do so without prejudice to the rights of others, or by saving their rights ; but where a complete determi- nation of the controversy cannot he had without the presence of other parties the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amend- ment." (Code of Civ. Pro., § 452.) " When the court directs a new defendant to be brought in, and the order is not made on his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons ; except that in the body thereof it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to personal service, or a substitute for personal service of an original summons, applies to such a supplemental summons." (Id., § 453.) These provisions apply to actions in equity only. ( Web- ster V. Bond, 9 Hun, 437 ; People v. Albany <& Vermont B. B. Co., 15 id. 126.) "When the defect of parties appears on the trial, a mere direction by the trial court that the omitted persons be brought in by amend- ment does not bring them in. {Hood v. Hood, 85 N. T. 561.) The trial should be suspended to allow the plaintiff an opportunity to make the application at the Special Term, and for the subsequent proceedings mentioned in section 453 of the Code, and upon the re- fusal or failure of the plaintiff to make the application, the court or referee may dismiss the complaint without prejudice to the right of the plaintiff to bring another action. {Peyser v. Wendt, 87 IST. Y. 322.) When the trial is suspended to allow a new defendant to be brought in, the plaintiff should give notice to the defendants who have ap- peared in the action of a motion to be made at Special Term for leave to bring in the new defendant, and to file a supplemental summons and complaint. Notice to the new defendant is not required. 270 Trial Peactice. Trial of specific questions of fact by a jury. {Ehhets V. Mwrtitie, 19 Hun, 29i ; Fisk v. Allcmy <& Susquehanna B. R. Co., 8 Abb. [K. S.] 310.) The motion should be based upon an affidavit stating the nature of the action, the proceedings had therein, and the direction of the court or referee in respect to the new party. Such orders are granted by the com-t whenever it is decided upon the trial that it is necessary to bring in a new party to have a complete determination of the issues presented. {Ehlets v. Marline, 19 Hun, 294.) The supplemental summons and complaint must then be served upon the new defendant (Code of Civ. Pro., § 453), and an opportunity mizst be given him to answer, or demur as he may be advised. {Eh- bets V. Martine, 19 Hun, 294.) After issue is joined the case should again be brought to a hearing before the court or referee, and if necessary, the trial should commence de novo. SECTION V. Teial of Specific Questions of Fact by a Juet. As has been already stated, the parties may by an application to the court, made before the trial, obtain an order directing the trial of specific questions of fact by a jury. {Ante, p 63.) In some cases this is a matter of right (Code of Civ. Pro., § 970), and in others is a mat- ter of discretion. (Id., §§ 823, 971.) So in all actions of an equita- ble nature, although no prior order has been obtained or applied for, the court has the power, when the cause is called for trial, to order questions of fact to be tried by a jury when it is apparent that their determination will depend upon conflicting evidence. {Zimmerman T. Schoenfeldt, 3 Hun, 692 ; 6 JST.T. Sup. Ct. [T. & C] 142 ; 6>' Brien V. Bowes, 4 Bosw. 657 ; Church v. Freeman, 16 How. 294.) In such cases the mode of trial is a question addressed to the discretion of the court. (Id.) And even after such action has been tried arid finally submitted for decision, the court has power of its own motion to direct certain issues therein to be tried by a jury if the case is one in which under similar circumstances the late Court of Chancery was authorized to exercise such powers. {BrincTcley v. BrincMey, 2 N. T. Sup.Ot.[T.&C.]501; 56N.T. 192.) Where an order has been made at Special Term directing the trial of specific questions of fact by a jury, and the questions have been duly stated for trial, the cause is brought on at the Circuit in the usual manner, a jury is impaneled and the trial proceeds as to the questions submitted in the same man- Tkial of Speoifio Questions of Fact by a Juet. 271 Motion for new trial, etc. ner as in ordinary cases. The jury render their verdict or finding in writing, which is filed with the clerk (Code of Civ. Pro., § 1187), who thereupon makes an entry in his mimites, specifying the tinie and place of trial, the names of the jurors and witnesses, the questions and findings thereon, and the directions, if any, which the court gives with respect to the subsequent proceedings. (Id., § 1189.) This constitutes one step in the trial. Motion for new trial, etc. — A party dissatisfied with the find- ings of the jury may, at the same term, move upon the minutes of the court to set aside the verdict and for a new trial, or may apply for an order directing that the exceptions taken on the trial be heard at the first instance at the General Term, and that judgment be sus- pended in the mean time. (Code of Civ. Pro., §§ 999, 1000, 1003.) The judge may, in his discretion, entertain either motion. (Id.) But if 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. (Id., § 1003.) This motion must be made before judgment {Ghapin v. Thompson, 80 N. T. 275 ; 23 Hun, 12), and must, of course, be made at a Special Term. (Gen. Rule 31.) If the motion is made on the ground of any error of the judge, or on the ground that the verdict is against evidence, a case or exceptions must be made, or a case containing exceptions, as the case may require. The case or exceptions must be served and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases. (Id.) The practice on the settlement of a case and excep- tions and the mode of bringing on a motion for a new trial will be noticed hereafter. (See New Tkial.) But the point must not be overlooked, that although Rule 31 provides that the case shall be served and settled in the manner prescribed by the rules of court for the settlement" of cases and exceptions in other cases, the provision must be construed to apply to the manner only and not to the time of service, as the time allowed for service by Rule 32 would extend at least ten days beyond the time in which a motion for a new trial may be made under section 1003 of the Code. The provisions of article 3 of title 1 of chapter 10 of the Code of Civil Procedure, re- lating to proceedings to review a trial by a jury, are applicable to a 272 Teial Peaotioe. Motion for new trial, etc. trial by a jury of one or more specific questions of fact arising upon the issues in an action triable by the court. (Code of Civ. Pro., § 1003.) But except in a case specified in section 970 of the Code (See ante, p. 9), a new trial may be granted as to some of the questions so tried and refused as to the others ; and an error in the admission or exclusion of evidence or in any other ruling or direction of the judge upon the trial may, in the discretion of the court which reviews it, be disregarded if that court is of the opinion that sub- stantial justice does not require that a new trial should be granted. (Code of Civ. Pro., § 1003.) The conclusive effect of the findings of the jury depends upon the nature of the action. If the sub mission of specific questions of fact to a jury was a matter of con- stitutional or statutory right, as provided in section 970 of the Code, the finding of the jury upon each question stated is conclusive in the action unless the verdict is set aside or a new trial granted. (Id., § 970.) In such case the findings of the jury upon the several ques- tions are as conclusive as a verdict upon all the issues in an action triable by a jury, and will be set aside or disturbed only where the court would be authorized to set aside such verdict. But in an equit- able action, where the submission of any questions of fact to a jury is a matter of discretion with the court, the findings of the jury have not the same conclusive character and are not necessarily controlling. (See Vermilyea v. Palmer, 52 E". Y. 471 ; Hegeman v. Camtrell, 8 Jones & Sp. 381 ; Wallace v. American Linen Thread Co., 16 Hun, 404 ; Brinkley v. BrinUey, 2 N. Y. Sup. Ct.[T. &. C] 501 ; BirdsaU V. Patterson, 51 N. Y. 43 ; Snell v. LoucJes, 12 Barb. 385.) It seems that the old chancery practice in respect to feigned issues applies to the trial of specific questions of fact by a jury in equity actions, and to the subsequent proceedings on the findings. (See Brinkley V. BrinUey, 2 N. Y. Sup. Ct. [T. & C] 501 ; 56 IST. Y. 192; Car- roll V. Beimel, 95 N. Y. 252.) This, so far as relates to the question under consideration, was summed up by Chief Justice Beonson as follows : " In cases of this kind all the books agree that the awarding or refusing an issue to be tried at law, and the grant- ing or refusing a new trial, are matters resting entirely in the dis- cretion of the chancellor. He may ask the aid of the jury to inform his conscience, or he may decide without such assistance. He may order a new trial, although the judge who presided at the Circuit is satisfied with the verdict ; and he may do it for reasons which would have little or no influence in a court of law. He may refuse Thial of Speoifio Questions of Fact by a Juey. 273 Proceedings subsequent to the verdict. a new trial although thei-e were errors in point of law at the Circuit, and even though dissatisfied with the verdict. He may decree in accordance with the verdict, or he may disregard the finding of the jury and decree the other way. In short, the jury and the verdict are things which the court may use or let alone as it sees good." {Lansing v. Eussell, 2 N". Y. 563 ; 4 How. 213.) In place of the chancellor is now the judge holding the Special Term or Circuit ; and in the place of the feigned issues is an order for the trial of questions of fact. {Hatch v. Peugnet, 64 Barb. 189, 195.) If the motion for a new trial on the minutes of the court is de- nied without prejudice to the right to move at Special Term on a case and' exceptions, the moving party should accept that remedy instead of appealing from the order. (Id.) No separate appeal lies in such case. {Ghapin v. Thompson, 23 Hun, 12, 15 ; Code of Civ. Pro., § 1347, subd. 2.) The error, if any, will be corrected on ap- peal from the final judgment. If no motion to set aside the verdict is made it will be assumed on appeal that the parties acquiesced in its correctness. {Jackson v. Andrews, 59 N. Y. 244 ; Ghapin v. Thomp- son, 23 Hun, 12, 15 ; Ward v. Warren, 15 id., 600.) Proceedings subsequent to the yerdict. — If the questions di- rected to be tried by a jury 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. (Code of Civ. Pro., § 972.) If such issues are not referred the cause must be regularly brought to trial or hearing at Special Term. Upon this hearing the findings of the jury must be presented to the court, and if no motion for a new trial is made and then heard, the trial proceeds as to other questions of fact not ad- mitted by the pleadings as upon an ordinary trial of all the issues by the court. If proof is required upon the other issues it is intro- duced as in ordinary cases. After the evidence is all in and the case is submitted, the court proceeds to make its decision, stating separately the facts found and the conclusions of law. The findings of fact will embrace all the questions passed upon by the jury. If the trial of these questions by the jury was a matter of right, the findings of the jury thereon must be adopted by the court. If the trial of these questions by the jury was not a matter of right, the adoption by the court of the findings of the jury does not follow as a matter of course. If a motion for a new trial is made upon the hearing, the motion should properly be heard and decided before 35 274 Trial Peaotioe. Reference of the remaining iesuea. the parties enter upon the evidence as to the questions not passed upon by the jury. The court may grant the motion and order a new trial as to some or all of the questions ; or it may deny the motion, discharge the order, and determine the questions on the hearing ; or it may qualify or alter the findings ; or adopt them as an entirety ( Yermilyea v. Palmer, 52 N. Y. 471 ; Hegeman v. Gantrell, 8 Jones & Sp. 381, 386), and if no motion is made for a new trial when the cause is brought to a final hearing, the court may, of its own motion, reject the verdict and order a new trial, or decide the question of fact for itself. {Browne. Clifford, 7 Lans. 46; Carroll v. Beimel, 95 N. Y. 252.) The facts found by the jury must be approved by the court before they* are made the basis of a judgment, and if approved, they become, by adoption, the findings of the court. ( Vermilyea v. Palmer, 52 N. Y. 471, 475.) If, when the jury have rendered their verdict and the cause has been regularly brought on for trial or hearing at the Special Term, no proof is necessary to establish facts not admitted by the plead- ings or not found by the jury, then upon the facts admitted and foiind, the court, using the findings of the jury for the information of its conscience, finds the facts and decides the law substantially as it would if all the issues had been regularly tried before it, and ex- ceptions may be taken just as if none of the issues had been tried before the jury. {Birdsall v. Patterson, 51 N. Y. 43, 50.) Keference of the remaining issues. — If, after the special find- ings of the jury have been entered in the minutes, the court decides to refer the remaiding issues, and the case is one where a reference may be ordered, or the parties consent to a reference (See ante, p. 15), a direction to that effect in the form of an order will be entered by the clerk in the minutes. A certified copy of this order should be procured from the clerk and served upon the referee. Either party desiring to complete the trial may apply to the referee for an appointment of a time and place of hearing {ante, p. 125), and may then bring the cause to a hearing by serving the usual notice. {Ante, p. 126.) At the time and place appointed the referee will proceed to hear and determine the remaining issues as if they were the only ques- tions involved in the action. The referee should take the usual oath before proceeding to hear the testimony unless the oath is waived. (Code of Civ. Pro., § 1016.) He should then administer the oath Trial of Specific Questions of Fact bt a Eefeeee. 275 Judgment — Trial of specific questions of fact by a referee. to the witnesses as they are produced before him ; rule upou questions of evidence raised by the parties, noting the objections and excep- tions, if any ; should consider and pass upon such written requests for ruhngs upon questions of law or fact as the parties may submit after the close of the evidence (Id., § 1023) ; and finally render his report, stating separately his findings of law and fact. (Id., § 1022.) It would seem that the findings of fact should embrace and adopt the findings of the jury ; that the report should be upon the whole issues in the action ; should direct the judgment to be entered ; and, if costs are discretionary, should award or deny them. Judgment. — In an action triable by the court, where one or more specific questions of fact arising upon the issues have been tried by a jury, judgment may be taken upon the application of either party as follows : 1. If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been de- termined by the decision of the court or the report of a referee, an application for judgment on the whole issue may be made as upon a motion. 2. If one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue, at the term of the court where, or by direction of the referee by whom, they are tried. (Code of Civ. Pro., § 1225.) SECTION 71. Tkial of Specific Questions of Fact bt a Ebfekee. The court has power to order a compulsory reference to report the finding of the referee upon one or more specific questions of fact involved in the issue of a referable action triable by the court. (Code of Civ. Pro., § 1013.) So in equitable actions, instead of sending specific questions of fact to a jury for trial, the court may, by consent of parties, send them to a referee. {Thurber v. Chambers, 4 Hun, 721.) Many contingencies may arise during the pendency of a cause rendering a reference to report questions of fact involved in the issues of great value in simplifying the questions in contro- versy and in diminishing the labors of the court. The duty of the referee is to hear the evidence presented by the parties and report his conclusion^ of fact, 276 Teial Peactioe. Motion for a new hearing. After the order of reference is made and entered, a certified copy may be served upon the referee, and an appointment obtained of the time and place of hearing. The usual notice of hearing should then be given by the party bringing on the reference. The parties should appear before the referee at the time and place appointed, prepared to present their proofs upon the questions referred. Before hearing any testimony the referee should be sworn faithfully and fairly to determine the questions referred to him and to make a just and true report according to the best of his understanding (Code of Civ. Pro., § 1016), unless the oath is waived in some of the modes pre- scribed by law. (Id.) The referee then proceeds to take the proofs, administers the oath to the several witnesses as they are produced, and reduces their testimony to writing. When the evidence is all in and the questions are submitted for decision, the referee proceeds to make up his report. He should report the facts, and not the evi- dence ; that is, he should state his findings of fact in the same man- ner that he would in a report upon a trial of all the issues where the same questions were involved. (See Matter of Hemiup, 3 Paige, 305.) He should then sign his report and either file it with the clerk, or deliver it to the prevailing party, who should file it as in a case where all the issues are referred. The successful party should then make a copy of the report, or cause it to be made, should indorse upon it a notice of the filing and serve the copy and notice upon the adverse party, who is then in a position to file exceptions or other- wise as he may deem proper. Motion for a new hearing. — The Code provides that in an action triable by the court, where a reference has been made to re- port upon one or more specific questions of fact involved iu the is- sue, a motion for a new hearing may be made at a Special Terra, 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 imless the court, or a judge thereof, directs a case to be prepared and settled. (Code of Civ. Pro., § 1004.) Rule 31 seems to be in direct conflict with the latter clause of this section. It provides in substance that " when * * * a refer- ence other than of the whole issue has been ordered under the Code, and a trial had, if either party shall desire to apply for a new trial on the ground of any error of the * * * referee, or on the ground that the * * * report is against evidence. Tkial of Specific Questions of Fact by a Refeeee. 277 Disposition of the remaining issues — Application for judgment. * * * a case or exceptions shall be made, or a case containing ex- ceptions, as the case may require, which case or exceptions shall be served and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases." This rule is not applicable to motions before judgment. The motion should be made upon the usual notice. The affida- vits should furnish satisfactory proof to the court that error was committed on the hearing or in the report to the prejudice of the moving party. If the application is based upon a case, it must be made and settled within such time as the court may direct. The practice on the motion will be substantially the same as on other motions for a new trial. (See ISTew Teial, j>ost.) The decision of the court may be reviewed on an appeal from the order. (Code of Civ. Pro., § 1347.) Disposition of tlie remaining issues. — Where a reference is made 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 re- quires. (Code of Civ. Pro., § 1014.) Application for judgment. — If there has been a jury trial of the issues not passed upon by the referee, application for judgment must be made upon the verdict and the report. (Code of Civ. Pro., § 1014.) Judgment must be taken upon the application of either party, as prescribed in section 1221 of the Code. (Id., § 1226.) As a party has had ample opportunity to redress any error com- mitted by the referee by motion for a new hearing, the findings of the referee ought to be conclusive upon an application for judgment. But if the trial of specific questions by the referee was ordered as a mere substitute for a feigned issue, and in lieu of sending the ques- tions to a jury, the findings should have the same force and effect as the verdict of the jury upon a feigned issue ; and the court should be at liberty to adopt or reject the findings upon the final disposi- tion of the case as justice requires. (See Thurber v. Ghamhers, 4 Hun, 721 ; 66 N. Y. 42 ; Marshall v. Meech, 51 id. 140.) 278 Trial Peactice. Requests to find facts or conclusions of law. SECTION VII. Keqtjests to Find Facts oe Conclusions of Law. Before the cause is finally submitted to the court or referee, or within such time afterward, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts which he deems established by the evidence, and of rulings upon questions of law which he desires the court or referee to make. (Code of Civ. Pro., § 1023.) The general rules of practice require that all requests to find facts or conclusions of law must be made in writing to the judge or referee before whom the trial was had, at or before the time of the submission of the action for decision. (Rule 32.) The statement must be in the form of distinct propositions of law or of fact, or both, separately stated, each of which must be num- bered and so prepared with respect to its length and the subject and phraseology thereof that the court or referee may coaveniently pass upon it. (Code of Civ. Pro., § 1023.) If a request, submitted, pre- sents more than one proposition, the court or referee is not bound to analyze it and pass upon its several parts, separately, but may refuse to find the proposition {Davis v. Leopold, 87 N. Y. 620. See Heilhrun v. Hammond, 13 Hun, 474, 482) ; and if all the propo- sitions material to be passed upon are so intermixed with statements of scraps of testimony and general statements of law that the propo- sitions cannot be practically distinguished and passed upon, the judge or referee may refuse to pass upon any of them. (Sniffen v. Koechling, 13 Jones & Sp. 61.) At or before the time when the decision or report is rendered, the court or the referee must note in the margin of the statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement thus noted, but an omission to do so does not affect the validity of the decision or re- port. (Code of Civ. Pro., § 1023.) The court or referee must pass upon the requests at or before the rendition of the decision or report (See Oormerly v. McGlynn, 84 N. Y. 284), and cannot postpone the matter until the settlement of the case. {Masterson v. Cranitch, 66 How. 171.) The rules of court prohibit the court or referee from making any additional find- ings of fact or conclusions of law after he has made and settled the Decision of the Couet oe Kepokt of the Eefbeee. 279 Decision of tlie court or report of the referee. findings and conelusions submitted to liira. ^Rule 32. But see Welch V. Preston, 30 Hun, 303; Ward v. Oraig, 87 K Y. 550; Moyer v. JST. Y. G. & H. R. E. E. Co., 88 id. 351.) The manner in which the propositions have been disposed of will be sufficiently indicated by writing in the margin of the statement opposite each proposition the words "found" or "not found," ac- cording as the judge or referee adopts or declines to adopt the propo- sitions submitted to him. {Davis v. Leopold, 87 N. Y. 620.) SECTION VIII. Decision of the Couet oe Kepoet of the Eefeeee. The decision of the judge or the report of the referee is a written statement of the facts which the judge or referee deems established by the evidence produced upon the trial ; of the legal conclusions which necessarily flow from the existence of such facts ; and a di- rection to enter judgment in accordance therewith. The Code pro- vides that " the decision of the court or the report of the referee upon the trial of the whole issue of fact must state, separately, the facts found, and the conclusions of law ; and it must direct the judgment to be entered thereupon. In an action where the costs are in the discretion of the court, the decision or report must award or deny costs, and if it awards costs, it must designate the party to whom costs, to be taxed, are awarded. (Code of Civ. Pro., § 1022.) The right to have separate findings of fact and conclusions of law is a substantial one, inasmuch as these findings and conclusions en- able the unsuccessful party to determine whether or not to appeal. A report or decision should contain a sufficient statement of facts to form a basis for the conclusions of law, and substantially show the disposition made of the specific issues in the cause, or such of them as are embraced in the determination. ( Yan Slych v. Hyatt, 46 N. Y. 259 ; Bishop v. Empire Transp. Co., 5 Jones & Sp. 12, 15 ; Eogers v. Bea/rd, 20 How. 282 ; Tomlinson v. Mayor 23 id. 452.) Parties seeking to review a judgment have a right to know the pre- cise grounds upon which an adverse decision is put, and it is im- portant to a proper review that the court also be fully advised by the findings of the precise grounds of the decision. ( Rogers v. Beard, 20 How. 282.) But a statement of a conclusion of fact is sufficient without setting forth the means or processes by which such conclu- sion is arrived at. [Dolan v. Merritt, 18 Hun, 27. See Quincey V. Young, 5 Daly, 44 ; Avery v. Foley, 4c Hun, 415 ; La/ne v. Borst, 280 Trial Peaotioe. Decision of tlie court or report of the referee. 5 Hob. 609.) Thus, a finding that a particular act has been per- formed is sufBcient without setting forth the particular acts done by way of performance. {Sermont v. Baetjer, 49 Barb. 362.) And a finding that there is a gross sum due under a written instrument is sufiicient without stating specifically the several items which go to make up such sum. {Sidenberg t. Ely, 90 IST. Y. 257 ; 11 Abb. IST. 0. 354. See Smith v. Coe, 39 N. Y. 666.) Immaterial facts, merely of a negative character, and not necessary to sustain the con- clusions of law, need not be found {^Mo Andrew v. Whitlock, 2 Sweeny, 623 ; Nelson v. Ingersoll, 27 How. 1 ; Sermont v. Baet^er, 49 Barb. 362 ; Patterson v. Graves, 11 How. 91) ; nor is it neces- sary to state whether the testimony of a particular witness was be- lieved or disbelieved ; nor whether a particular link in the chain of evidence of either party existed or was wanting ( Wiltsie v. Eaddie, 4 Abb. IST. C. 393, 395) ; and it would be error to find the evidence of facts, instead of the facts themselves. {Avery v. Foley, 4 Hun, 415.) The facts to be found by the judge or referee are precisely those which would be found or affirmed by a jury in rendering a verdict to the same effect as the decision or report ; and the legal conclu- sions found are the same as the decision upon the law which the Cir- cuit judge would have stated to the jury, hypothetically, upon the same facts upon the trial of the cause at the Circuit. {Leffler v. Field, 38 How. 385, 388.) Questions of fact not arising upon the issues need not be passed upon ( Wiltsie v. Eaddie, 4 Abb. N. S. 393 ; Quincey v. Young, 5 Daly, 44), and issues upon which there is no evidence need not be noticed. {Patterson v. Graves, 11 How. 91 ; Ingraham v. Gilbert, 20 Barb. 151.) But facts upon which there is abundant evidence to support the allegations on either side must be found one way or the other, and if the evidence is so confiicting as to leave the mind of the court or referee in doubt, he should find the facts adversely to the party holding the affirmative. {Bradley v. McLaughlin, 8 Hun, 545.) A report or decision which does not comply with the letter of the statute may be held sufficient, on review, though it would be mis- leading as a precedent. Thus, if the issue is reported upon by nec- essary implication from the rest of the report, it may be held suffi- cient. {Patterson v. Graves, 11 How. 91.) So in an action for a divorce on the ground of adultery, where a counter-charge of adultery is set up in the answer, a decision of the court that he finds the Decision of the Cohet oe Eepoet of the Kefeeee. 281 When no findings are neceasary — Requisites of decision, etc., in particular cases. plaintiff guilty of the adultery as charged in the answer, and directs a dismissal of the complaint, is a sufficient compliance with the stat- ute, although it does not, literally speaking, contain a statement of the facts found. {Pollock v. Pollock, 71 JST. Y. 137.) So where a find- ing of fact that the defendant was guilty of negligence is necessary to uphold a judgment, a finding to that effect, included in the con- clusions of law, may be held sufficient. {Sherman v. Hudson River R. R. Co., 64 N. Y. 254.) So where the parties have stipulated that if the report is in favor of the defendant, the referee need not state specifically the facts found by him, but may state generally his conclusions, and the referee has reported simply that the plaintiff ought not to have or maintain the action against the defendant, it will be assumed, on appeal from the judgment, that the referee found in favor of the defendant, upon all the points in issue, where such finding is necessary to sustain the report. {Smith v. RowUy, 66 Barb. 502.) When no findings are necessary. — Where the complaint is dis- missed on the trial upon the plaintiff's own proofs, no special state- ment of facts found or conclusions of law are required. If the trial is by the court, the decision dismissing the complaint may be entered in the minutes of the clerk, and a judgment of dismissal entered upon a copy of such minutes without any findings. {Bishop V. Em/pire Trarbsp. Co., 5 Jones & Sp. 12.) If the trial is before a referee, he may simply report that on the trial before him he dis- missed the complaint on the plaintiff's own showing, and direct the entry of a judgment of dismissal. Upon this report the defendant may enter a judgment dismissing the complaint. (Id.) So where judgment is ordered for the plaintiff, on the pleadings, no findings of fact are needed, and the order for judgment will be a sufficient decision, in writing, to meet the requirements of section 1010 of the Code of Civil Procedure. {Eaton v. Wells, 82 IST. Y. 576.) Requisites of the decision or report in particular cases, — Where double, treble or other increased damages are given by stat- ute, the decision of the court or the report of the referee must specify the sum awarded as single damages, and direct judgment for the increased damages. (Code of Civ. Pro., § 1020. See Id., § 1668.) When one or more issues of law, and one or more issues of fact 36 282 Teial Peaotice. Requisites of the decision or report in particular cases. arise in tlie same action, and the issue, last tried, was tried before a referee, his report must award the proper judgment upon the whole issue, unless otherwise prescribed in the order of reference. (Code of Civ. Pro., § 1221.) In such a case the referee may make a com- putation, or an assessment, or take an account or proof of a fact for the purpose of enabling him to award the proper judgment, or of en- abling the court to carry it into effect ; and he may ascertain and fix the damages, as a jury may do upon the execution of a writ of in- quiry. (Id., § 1223.) In an action to annul a marriage, or for a divorce or separation, where a reference is made, the testimony and the other proceedings on the reference must be certified to the court by the referee with his report, and judgment must be rendered by the court. (Id., § 1229.) But the report of the referee in these actions is the same as upon an ordinary reference to hear and determine, the only dis- tinction being that in matrimonial actions, although the referee has tried the issues, passed upon them and reported, yet his report and the testimony must be presented to the court, and judgment must be rendered by the court. {McGleary v. McGleary, 30 Hun, 154. See Sohroeter v. Sohroeter, 23 id. 230 ; Sullivan v. Sidlivan, 52 How. 453 ; Rule 77. See, also, Eules 73, 76.) In an action of ejectment, the report or decision in favor of the plaintiff must specify his estate in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term if the estate is less than a fee. (Code of Civ. Pro., § 1519.) In an action of replevin, the report or decision must fix the dam- ages, if any, of the prevailing party. If it awards to the plaintiff a chattel which has not been replevied, or if it awards to the pre- vailing party a chattel which has been replevied and afterward de- livered by the sheriff to the unsuccessful party, or to a person not a party, it must also fix the value of the chattel at the time of the trial unless the case falls within the provisions of section 1727 of the Code. (See Code of Civ. Pro., § 1726.) That section provides that " a verdict, report or decision in favor of the defendant shall not fix the value of the chattel in either of the following cases : 1. Where the plaintiff is the general owner of the chattel, but it was rightfully distrained doing damage, and its value is greater than the damage sustained by the defendant by the injury for which it was distrained ; in which case those damages must be fixed. Dboision of the Couet oe Ebpoet of the "Referee. 283 Making and filing the decision — Time of. 2. Wliere the plaintiff is the general owner of the chattel, but the defendant had a special property therein, and the value of the chat- tel is greater than the value of the special property, or the sum charged upon the chattel by reason thereof ; in which case the value of the special property, or the sum so charged,* must be fixed. In either of the cases specified in this section, the verdict, report or decision must set forth the reason why the value of the chattel is not fixed." "When the action is brought to recover two or more chattels, the report or decision may award to one party one or more distinct chattels, which can be identified and set apart from the others, and the residue to the other party. (Id., § 1728.) Making and filing the decision. — "W"hen a case tried before the court has been finally submitted, the next step is to make and file the decision. It is to be presumed that the attorneys for the several parties have each drawn up in proper form, and delivered to the court, a written statement of the facts which they severally deem established by the evidence, and of the rulings upon questions of law which they desire the court to make. (See ante, p. 278.) If this has been done, and the court has noted his allowance or disal- lowance of the propositions contained in the statements submitted, the labor of making up the decision is greatly lessened, and becomes, to a certain extent, merely clerical. The decision is not always drafted by the court. It has been the usual practice, especially in cases where the findings are long, for the justice who tried the cause, to furnish the attorney for the successful party with a brief minute of his decision, and to request him to prepare in form the statement of the findings of fact and conclusions of law ; and when these have been submitted, and altered and amended according to the actual decision of the judge, the latter often delivers them per- sonally to the attorney to be filed, or sends them to him by mail. {People V. Albany & Susquehanna R. R. Co., 57 Barb. 204 ; 2 Lans. 459.) This is usually done without communication with the attorney for the unsuccessful party. Time of making and filing the decision. — The Code requires that the written decision of the court shall bo filed in the clerk's office within twenty days after the final adjournment of the term at which the issue was tried. (Code of Civ. Pro., § 1010.) The re- 284 Teial PrachoE. Remedy for failure to file the decision. quirement of this section, like that of the former Code for which it is a substitute (See Code of Procedure, § 262), must be taken with the qualification that no other disposition is made of the case, and that all the facts necessary to a decision are ascertained at the trial term. The court might undoubtedly open the case for further proof, or, by some order made in the cause, direct such other proceedings to be had that the filing of the decision within the prescribed time would be impracticable. {Brinkley v. Brinkley, 56 JS^. Y. 192.) Remedy for failure to file the decision. — The Code provides that in case the written decision of the court is not filed within twenty days after the final adjournment of the term where the issue was tried, either party may move at a Special Term for a new trial upon that ground ; that if the decision has not been 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 ; and that 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. (Code of Civ. Pro., § 1010.) This motion for a new trial must necessarily be based upon affida- vits showing a failure to file the decision, or upon proof that search has been made in the office of the proper clerk, and that no de- cision on file can be found. {Lewis v. Jones, 13 Abb. 427.) A cer- tificate by the clerk, under his hand and official seal, that he has made diligent examination in liis office for the decision, and that it cannot be found, is evidence of the facts so certified as if the clerk personally testified to the same. (Code of Civ. Pro., § 921.) The moving papers should show in what county the venue was laid, in order that the court may determine that the search was made in the proper office ; should state at what term the trial was had, and the date of the adjournment of such term ; and, also, enough of the proceedings on the trial to show that a decision was essential to its proper termination. The moving party should give the usual notice of motion to the adverse party, and should serve copies of the moving papers with the notice of motion. (For form of the notice, see Appendix.) The adverse party may oppose the motion by affidavits showing that the decision had been filed at the time the notice was given, or at or be- fore the time of the hearing, or may show that the case was one in which no decision was necessary. Decision of the CotrET oe Eepoet of the Eefbeee. 285 Making and filing tlie report of the referee. If judgment has been entered in the absence of any decision the remedy of the party is not to move to set aside the judgment, but to move for a new trial under section 1010. (Eaton v. Wells, 82 N. Y. 576.) If any decision has been filed, however defective, the remedy is not under that section. It may be that a party aggrieved by the failure of the court to file any decision within the required time has also a remedy by mandamus. (See Mupfel v. Sohoemig, 2 Jones & Sp. 476.) If it appears upon the hearing of the motion for a new trial that the decision of the court is then on file, there will be no reason for making an order for a new trial, and no order to tliat effect is re- quired or authorized by the Code in such case. (See Code of Civ. Pro., § 1010.) The failure to file the decision within the specified time does not impair the validity of a decision subsequently filed (See Stewart v. Slater, 6 Duer, 85, 102 ; Lewis v. Jones, 13 Abb. 427) and the court must deny the motion. If it does not appear that the decision is on file at the time of the hearing, and it does appear that the time allowed by st-atute had expired at the time the notice of motion was given, the court must make an order for a new trial, either absolutely, or unless it is filed within a time specified in the order. (For a form of the order, see Appendix.) This order should be entered, and a certified copy should be served upon the attorney for the adverse party. Making and filing the report of the referee.— After a cause has been finally submitted to a referee for his decision, the next step is to make an examination of the issues and of the proofs prepara- tory to making up the report. If the cause was referred to several referees, they must meet together and confer as to the terms of the report, and upon such conference, the majority of them must reach a substantial agreement upon the several questions of law and fact to be embodied in their report. {Townsend v. Glens Falls Ins. Co., 10 Abb. [N. S.] 277 ; 1 Jones & Sp. 130.) A majority of the referees may sign the report. (Code of Civ. Pro., § 1026.) Bat such signing must be the result of an agreement reached when they were all together and acting as referees. If upon the conference a majority of the referees fail to agree upon the questions of fact and conclusions of law necessary to a decision, they cannot regularly make a valid report by separately signing one, drawn by the success- ful party, without further consultation together in regard to it. 286 Tkial Peaotice. Filing or delivery of the report. {Townsend v. Glens Falls Ins. Co., 10 Abb. [N. S.] 277 ; 1 Jones & Sp. 130.) But where, upon a conference, a majority of the refer- ees agree upon a report, and the minority agrees to dissent, the fact that the majority do not sign the report until the next day, and that the dissenting referee was not present when it was signed, will not invalidate it. {Qlark v. Frazer, 1 How. 98.) Filing or delivery of the report. — The Code provides that upon the trial by a referee of an issue of fact, or an issue of law, or where a reference is made as prescribed in section 1015 of that act, the referee's written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter was finally submitted ; otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such cases the action must thenceforth proceed as if the refer- ence had not been directed, and the referee is not entitled to any fees. (Code of Civ. Pro., § 1019.) A corresponding section of the former Code provided that " the referee or referees shall make and deliver a report within sixty days from the time the action 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 thereiipon the action shall pro- ceed as though no reference had been ordered, and the referees shall not in such case be entitled to any fees." (Code of Pro., § 273.) It will be noticed that the provision of the old Code had reference to a report upon a trial of the issues of the action and called for a de- livery of the report within sixty days from the time the action was finally submitted, while the corresponding provision of the new Code applies both to references of the issues and to references other than of the issues, and permits the referee to file the report with the clerk or to deliver it to the attorney for one of the parties. Under the old Code it was held that the report should be de- livered to the successful party, and that no other party had a right to its possession, even though the attorney for the successful party had refused, on request of the I'eferee, to take up the report and pay to the referee his fees. {Richards v. Allen, 11 W. Y. Leg. Obs. 159.) It was also held irregular for the referee to deliver duplicate reports to both parties. {Currie v. Cowles, 7 Eob. 3.) But it was Decision of the Couet or Report of the Eepbeee. 287 Filing or delivery of the report. also held that where the referee had given notice to the attorneys for both parties that the report was ready for delivery and that it was in favor of the plaintiff, either party could at any time there- after take it up. ( Waters v. Shepherd, 14 Hun, 223.) It was also held that where the report was in favor of the defendant and he de- clined to take it up and pay to the referee his fees, the plaintiff might have an order directing the defendant to file the re{)ort within a time specified and enter up judgment thereon, or in default thereof that the plaintiff might do so without costs. (See liichmond v. Hamilton, 9 Abb. 71, note.) The proper practice is for the referee to refuse to hear and deter- mine the action or matter referred to him if the parties are not re- sponsible. He is not bound to serve. If on the other hand he deems the parties responsible, or is willing to risk the collection of his fees, he should make and sign his report in due season, and either file it with the clerk or deliver it to the party in whose favor it is made within sixty days from the final decision of the cause or matter, or, within such time, should notify the attorney for such party that the report is ready for delivery, and off'er to deliver it on payment of his fees. The referee is not bound to deliver his report imtil his fees are paid, nor on the other hand can he, by order of the court, compel the party to pay his fees and take up the report. ( Oeih v. Topping, 83 N. T. 46, 48.) If he files or delivers his report without exacting payment of his fees, he must seek his remedy for their collection by the ordinary action on contract. (Id. ; Perkins v. Taylor, 19 Abb. 146.) The general rule is that the prevailing party upon the refer- ence must pay the fees of the referee and recover them back from the other party to the proceedings. (Id.) The attorneys for the respective parties are not liable to the referee for his services in the suit unless by force of some special contract. {Judson v. Gray, 11 K Y. 408.) If the report is delivered to the attorney for the prevailing party within the statutory time, it need not be immediately filed by the at- torney, as the sixty days' limitation applies only to filing or delivering by the referee. If the whole issue is referred, the report must be filed before the entry of judgment. (Code of Civ. Pro., § 1228.) "Where only a part of the issues were referred, the report of the referee thereon must be filed with the clerk at some time before judgment. (See Id., § 1014.) And where the reference is of ques- tions of fact, not embraced in the issues, the report must also be filed 288 Teial Peaotioe. Terminating the reference for a failure to file or deliver the report. with the testimony before any further proceedings can be based thereon. (See Gen. Eule 30.) Terminating the reference for a failure to file or deliver the report. — If the referee fails to file his .report with the clerk, or to deliver it to the attorney for one of the parties within sixty days from the time when the cause or matter was finally submitted, either party may, before it is filed or delivered, serve a notice upon the adverse party that he elects to end the reference, and the action proceeds thereafter as if the reference had not been directed, and the referee forfeits his right to any fees. (Code of Civ. Pro., § 1019.) A case' is finally submitted to a referee when the trial is closed and the referee is empowered to proceed immediately to consider and determine the case. (Gregory v. Cryder, 10 Abb. [JSI. S.] 289.) If, however, the case before the referee is submitted upon written arguments, and after the time to deliver the report has expired, the attorneys appear before the referee, argue the ease orally, and again submit it, the time in which to deliver or file the report is thereby extended to sixty days from the date of the oral argument, and the re- port must be filed or delivered within that time. {Richards v. Bloom, 5 Hun, 182.) And generally, where, after the submission of a cause a reargument is had, and the cause is then re-submitted, the cause will be considered as finally submitted at the date of the reargu- ment. {Leitoh V. Brotherson, 25 How. 407; 16 Abb. 384.) And if the parties, by an oral agreement before the referee in open court, made at the time of the final submission of the cause to him, indefi- nitely extend the time within which the report may be made and delivered, a party cannot terminate the reference and bar a right to a decision by the referee by serving a notice to end the reference. In such a case a reasonable notice to the referee and adverse party that a report is demanded should be given, or an order should be obtained from the court, requiring a report within a specified time. {Ballou V. Parsons, 52 How. 164 ; 67 Barb. 19 ; 55 N. Y. 673 ; Livingston v. Gidney, 25 How. 1. See Foster v. Bryan, 16 Abb. 396 ; 26 How. 164 ; Theiesselin v. Rossett, 3 Abb. [N. S.] 54.) But the fact that the counsel have omitted to furnish the referee with some of the exhibits put in evidence on the trial, until after the final decision of the cause, does not prevent the running of the time limited for filing or delivering the report. {Gregory v. Cryder, 10 Abb. [K S.] 289.) Decision of the Couet or Report of the Referee. 289 Terminating the reference for a failure to file or deliver the report. There is some question as to what is to be deemed a sufficient de- livery of the report to prevent a termination of the reference or the forfeiture of fees declared by section 1019 of the Code of Civil Procedure. Under the former Code it was held that where a referee had his report ready within the statutory time and offered to deliver it on payment of his legal fees, the offer was a sufficient delivery to bar the right to terminate the reference . ( Waters v. ShepJierd, 14 Hun, 223.) The same conclusion has been reached in a Special Term decision in a case decided under the present Code {QuacJceribmh v. Johnson, 55 How. 94), and also in a decision at General Term. (See Comelvus Y. Barton, 12 Week. Dig. 216.) But in another case decided at Greneral Term the court held that either party might ter- minate the reference under section 1019 of the Code, unless the referee, within the sixty days from the time when the cause was finally submitted to him, had made his report and filed it with the clerk, or delivered it to one of the parties, and that it was no longer sufficient for him to have made his report and notified the party in whose favor it was made that it was ready for delivery on payment of his fees. {Phipps v. Carmam, 23 Hun, 150.) The Court of Appeals have expressed an opinion adverse to the latter decision but did not definitely decide the question. {Geib v. Topping, 83 N. T. 46, 48.) The weight of authority is clearly in favor of the proposition that a readiness to deliver tlie report, and an offer to de- liver on payment of fees, is a sufficient delivery to prevent a termi- nation of the reference and a forfeiture of fees. Allowing an attorney for one of the parties to receive and read the report is not necessarily a delivery of the report. {Birdseye V. Goddard, 17 "Week. Dig. 228.) The mode prescribed by the statute for terminating the reference is the service upon the adverse party of a notice of an election to end the reference. The form of the notice is not prescribed by statute, and therefore any notice dis- tinctly giving the opposite party information that the party serving the notice has elected to end the reference is sufficient. {Gregory V. Gryder, 10 Abb. [N. S.] 289.) The notice should be signed by the attorney and not by the party. {Halsey v. Carter, 6 Rob. 535.) (For form of the notice, see Appendix.) If such notice is served after the expiration of the sixty days and before the report is filed or delivered, the power of the referee thereafter to make or deliver a report is terminated ; and if he sub- sequently files or delivers a report, his act will be without authority 37 290 Tkial Practice. Construction of the report or decision. of law and void, and all proceedings by or before him are nullities . {Oregory v. Cryder, 10 Abb. [N. S.] 289 ; NUes v. Maynard, 28 How. 390- See Limingston v. Gidney, 25 id. 1.) The court has no power to render such subsequent proceedings valid by an order enlarging the time for filing or delivering the report, or other- wise. {^Oregory v. Cryder, 10 Abb. [N. S.] 289. Contra: Halsey V. Carter, 6 Rob. 535.) But if the report is filed or delivered be- fore the notice is given, it is valid although the sixty days have ex- pired. {Foster v. Bryan, 16 Abb. 396 ; 26 How. 161 ; Maaitles v. Myle, id. 409.) If a report is filed after a notice terminating the reference has been served in a proper case, the remedy of the party serving the notice is to apply to the court at Special Term for an order setting aside the report and removing it from the files of the court. This motion should be based upon an affidavit showing the character of the reference ; the final submission of the cause or matter to the referee at a date specified ; the failure of the referee to file or de- liver a report within the sixty days following such submission ; the service of a notice of election to end the reference, setting forth a copy thereof ; and the delivery and filing of the report after service of the notice. The usual notice of motion should be given to the adverse party, and the affidavit should be served with the notice. The motion may be opposed upon counter-affidavits or otherwise, and if it is made to appear that the report was filed or delivered within the statutory time, or within such further time as the parties had, by stipulation, allowed for that purpose, the motion will be denied, otherwise it will be granted. Construction of the report or decision. — In construing a re- port or decision on proceedings for review, full effect will be given to special findings in preference to the general findings, upon the principle that a general finding, like a verdict, is controlled by a special finding of fact. {Bermett v. Buchan, 16 N. Y. 386 ; Phelps V. Viseher, 50 id. 69.) It is a general rule that the ap- pellate court will presume, in support of a judgment rendered on a trial before a court or referee, that material facts appealing in the case, not embraced in the express findings, were, nevertheless, found and considered by the trial court. {Grant v. Morse, 22 N. Y. 323 ; Bays V. Miller, 70 id. 112 ; Meyer v. Lathrop, 73 id. 315 ; liider Decision of the Court or Report op the Referee. 291 Conclusiveness of the findings. V. Fowell, 28 id. 310 ; Phillip v. Gallant, 62 id. 256 ; Vernol v. Vernol, 63 id. 45 ; Parker v. Baxter, 86 id. 586.) But this rde applies only to such facts as, being found, would tend to support the special findings, and does not apply to inconsistent facts, not con- clusively established. {Armstrong \. Du, Bois, 90 N. Y. 95.) It applies only where it appears from the case that such additional findings would have been warranted by the evidence. {Oierlander V. Spiess, 45 N.Y. 175.) If the findings of fact are contradictory, the findings most favorable to the defeated party will be regarded in aid of his exceptions, and the unfavorable and inconsistent find- ings will be disregarded. {Bonnell v. Griswold, 39 K. Y. 122; Schwinger v. Raymond, 83 id. 192.) If the findings are ambigu- ous, that construction will be adopted which will sustain the judgment, rather than that which will lead to a reversal. {Hill v. Grant, 46 N. Y. 496.) The rule is that the findings are to receive the most favorable construction of which they are capable for the purpose of upholding the judgment. (Id.) Facts not found are necessarily negatived by implication. {Serinont v. Baetjer, 49 Barb. 362 ; Nelson v. Ingersoll, 27 How. 1 ; Perine v. HotchMss, 2 Lans. 416 ; McAndrew v. Whitloch, 2 Sweeny, 623 ; Manley v. Insurance Co. of North America, 1 Lans. 20.) In construing and reviewing decisions by the court or reports by referees, the whole report or decision will be taken together, and if all parts of it, thus considered and construed, cover the case, and show that it was in fact decided upon correct principles, a court of review will sustain the judgment. ( Voorhis v. Voorhis, 50 Barb. 119.) Conclusiveness of the findings, — Where the only issue involved in an action is an issue of fact, and this has been tried by a referee, his report stands as the decision of the court. (Code of Civ. Pro., § 1228.) A finding by the court or referee upon a question of fact upon which the evidence is conflicting is conclusive. {Monell v. Marshall, 25 How. 425 ; Arnoux v. Romans, id. 427 ; Fellows V. Northrup, 39 N. Y. 119 ; Van Ness v. Bush, 22 How. 481 ; Russell V. Burton, 66 Barb. 539 ; Ball v. Loomis, 29 K. Y. 412 ; Woodruff V. McGrath, 32 id. 255 ; Westerloo v. De Witt, 36 id. 340.) The decisions of a referee upon questions of fact are consid- ered conclusive to the same extent as the verdict of a jury, and will not be disturbed except where they are very clearly against evidence 292 Teial Praotioe. Setting aside the report of a referee. or are unsupported by evidence {Sinclair v. Tallmadge, 35 Barb. 602 ; Russell v. Burton, 66 id. 539 ; Hoaglomd v. Wight, 20 How. 70 ; 7 Bosw. 394) ; or, iinless the finding is so flagrantly tinjust as to show partiality, corruption, or incompetency, on the part of the referee. {Howell v. Biddlecom, 52 Barb. 131.) But while the re- port of a referee will not, as a general rule, be disturbed if there is evidence which may be said fairly to sustain it, even though there is apparently a strong array ag^st it, it will not be upheld where the evidence upon which it professes to be founded not only comes far short of sustaining, but in some respects is at war with its conclu- sions, and where that on the other side is not only numerically but intrinsically overwhelming. {Strittmacher v. Salina, etc., Pla/nk- road Oo., Si How. 74.) A finding without evidence to sustain it may be reviewed as a ruling upon a question of law. (See Code of Civ. Pro., § 993.) SECTION IX. Setting Aside the Repobt of a Eefeeee. A trial of an issue of fact by a referee cannot be reviewed by a motion for a new trial founded upon allegations of error in a find- ing of fact, or a ruling upon the law made upon the trial, except in a case where the report directs an interlocutory judgment, and fur- ther proceedings must be taken before the court, a judge, or a referee, before final judgment. (Code of Civ. Pro., §§ 1001, 1002 ; Kilmer v. O'Brien, 13 Hun, 224, 226.) In any other case, rulings to which exceptions are taken can be reviewed only upon an ap- peal from the judgment rendered after the trial. (Id.; Code of Civ. Pro., § 996.) It is otherwise where the reference is to report upon one or more specific questions of fact involved in the issue (Id., § 1004), or when the reference is ordered pursuant to section 1015 or section 1215 of the Code. (Id., § 1232.) But the court had power to set aside a report rendered by a ref- eree, after a trial of all the issues, for improper transactions had be- tween the referee and the party in whose favor he finally decides, which tend to raise a suspicion that he may have been improperly influenced in making his decision, or where the relations between the referee and the successful party or his attorney are such as to cast a doubt upon his impartiality and fairness. If it appears that the report of a referee upon a question of fact Setting Aside the Report of a Refeeee. 293 Setting aside the report of a referee. has been affected, even in the slightest degree, by any influence ex- ercised by the successful party, it will be set aside for irregularity. {Dorlon v. Lewis, 9 How. 1 ; Roosa v. Saugerties <& Woodstock Tunvpihe Road Co., 12 id. 297.) But to justify the court in set- ting aside the report for undue influence, there must be affirmative evidence of facts from which the exercise of such influence can be inferred ; and it must appear that the influence was exercised by the successful party. A report will not be set aside upon the sole ground of improper transactions between the referee and the unsuccessful party. {Gray v. FisTc, 1 Jones & Sp. 464; 12 Abb. [K S.] 213 ; 42 How. 135 ; 53 N. T. 630.) A report was set aside where it appeared that the referee, in the absence and without the consent of the unsuccessful party, inspected and received an explanation of the operation of certain machinery which was the subject of litigation. ( Yale v. Gwinits, 4 How. 253.) So a report was set aside where the I'eferee, in the absence of one party, advised the other to compromise, suggesting terms, and when the advice was not taken, reported against him. {Livermore v. Rainbndge, 44 How. 357 ; 47 id. 350 ; 14 Abb. [N. S.] 227 ; 56 N. Y. 72.) It has been held that where it is shown that each of two attorneys in different actions has the cause of the client of the other in his hands to decide as referee, the court will vacate the ref- erence and set aside the report, if one has been made, upon the ap- plication of the opposing party in either action, if the motion is made in due season, and under circumstances not amounting to a waiver, without regard to the question whether the referee has been or is likely to be influenced by the existence of the relation. {Carroll v. Lufkins, 29 Hun, 17.) But it would be otherwise if the moving party permitted the reference to proceed and took his chance of success with full knowledge of the facts. (Id.) It has also been held that where the referee, pending the refer- ence, is employed by the plaintiff as attorney in other matters, that fact of itself avoids a report in favor of the plaintiff. {Stebbins v. Brown, 65 Barb. 272.) And the fact that, after a case had been closed and submitted, the referee entered into negotiations to have his fees fixed by stipulation, at a sum in excess of the statutory rates, has been held a sufiicient ground for setting aside a report subsequently made. {Greenwood v. Marvin, 29 Hun, 99.) It may be laid down as a general rule derived from the cases, that a report of a referee will not be allowed to stand in any case where it is ap- 294 Trial Peaotioe. Practice on the application to set aside the report. parent, from the circumstances disclosed, that the decision may have been influenced, even unconsciously, by considerations other than the merits as presented by the evidence given upon the trial and the law applicable thereto ; and that, in determining the motion, the court will not inquire whether the referee has been in fact influ- enced by such extraneous considerations, nor whether the report is such as ought to have been I'endered in the case. The report will be set aside if for no other reason than to protect referees from temptation and the suspicion of having been influenced by improper motives. How far the failure of a referee to take the oath prescribed by section 1016 of the Code of Civil Procedure affects the validity of his report has been considered elsewhere {ante, p. 263), and also how far the failure to make the report within the statutory time will affect its validity (ante, p. 288). Practice on the application to set aside the report. — A mo- tion to set aside the report of a referee upon the grounds above no- ticed should be made at Special Term, upon the usual notice to the adverse party, and should be based upon affidavits setting forth clearly and fully the particular acts done, or transactions had, or re- lations existing, between the referee and the successful party or his attorney, which are claimed to have influenced the referee's judicial action. Enough should be stated in the moving papers to show either actual misconduct and corrupt dealing between the referee and the successful party, or the existence of a state of facts from which the court may reasonably infer that influences, not arising from the legitimate proceedings on the trial, which might have af- fected the decision of the referee, surrounded him at the time of making his report ; though it is never necessary, and seldom possi- ble, to show that the referee was in any manner unduly influenced to the prejudice of the moving party. These affidavits should be served with the notice of motion. (For form of notice, see Ap- pendix.) Upon the hearing the motion may be opposed by affidavits ex- plaining or denying the charges contained in the moving papers, or showing gross laches on the part of the moving party, or an express or implied waiver of the act complained of. (See Carroll v. Lufkins, 29 Hun, 17.) The motion is addressed to the discretion of the court, and may be Exceptions to Flndingb, or Refusals to Find. 295 Exceptions to findings, or refusals to find. granted even where the integrity of the referee is beyond question, and the report has made the proper disposition of the case. (For form of order setting aside the report, see Appendix.) The decision of the Special Term granting or denying the motion may be reviewed by the General Term, but not by the Court of Appeals. {Gray v. Fisk, 63 N. Y. 630 ; Livermore v. Bamhridge, 56 id. 72.) SECTION X. Exceptions to Findings, or Refusals to Find. The exceptions which may be taken to the rulings of the court or referee upon the trial of an issue of fact may be divided into two classes. In one class are exceptions to rulings upon questions of evidence, and the like, which must be taken when the ruling is made. (Code of Civ. Pro., § 995.) This class of exceptions has been noticed. (See ante, p. 267.) The other class embraces excep- tions to rulings made after the cause has been submitted to the court or referee, and which, from necessity, must be taken at some subsequent stage of the case, such as exceptions to the findings of the court or referee upon the law or fact, or to the refusal of the court or referee to find a particular fact or legal conclusion. It is this latter class of exceptions which will be here considered. Under the former practice, when the court or referee refused to find upon a fact at all, and neither admitted or denied it, the rem- edy of the party aggrieved by the refusal was to apply to the court at Special Term for an order directing the trial court or referee to find upon the question one way or the other. If it was made to ap- pear to the court at Special Term that the omitted finding was ma- terial and necessary to a proper review of the judgment, the case was sent back for correction by the insertion of the further finding. If the motion was denied upon the ground that the fact sought was immaterial, the correctness of that ruling could be tested on appeal. ( Van Slych v. Hyatt, 46 IST. T. 259 ; Smith v. Glens Falls Ins. Co., 62 id. 85 ; Potter v. OarpenUr, 71 id. 74 ; 3 Wait's Pr. 327 ; Ex- celsior Petroleum Go. v. Laoey, 3 Hun, 411 ; 5 N. Y. Sup. Ct. [T. & C] 305 ; Meacham v. Burke, 54 IST. Y. 217 ; Zefler v. Field, 47 id. 407 ; Morgan v. Mulligan, 50 id. 665 ; Wood/iull v. Rosen- thal, 61 id. 382, 391; Rogers \. Wheeler, 52 id. 262; Quincey v. Young, 53 id. 504.) This remedy, though not in terras abolished, 296 Teial Peactice. When and how exceptions should be taken to the report or decision. is supplanted by the simpler remedy furnished by the Code of Civil Procedure. (James v. Cowing, 82 N. Y. 449.) This act provides that an exception may be taken to the ruling of the court or referee upon a question of law arising upon the trial of an issue of fact; but that, except as prescribed in section 1180 of that act, which relates to exceptions to rulings on the trial of a challenge, an exception cannot be taken to a ruling upon a question of fact. (Code of Civ. Pro., § 992.) It also provides that upon the trial of an issue of fact by a referee, or by a court without a jury, a refusal to make any finding whatever upon a question of fact, where a re- quest to find thereupon is seasonably made by either party, or a find- ing without any evidence tending to sustain it, is a ruling upon a question of law within the meaning of the preceding section. (Id., § 993.) Thus, a refusal of a request to find any particular fact, upon the ground that it was immaterial, and an exception thereto, raises a question of law, and, upon a review, presents the question of the materiality of the finding sought as perfectly and definitely as if it had been done by the process of a motion. {James v. CowiTig, 82 ISr. T. 449, 458.) Under the former practice it was necessary for the party to lay the foundation for an application to the court for further findings by a request made to the judge or referee to find specifically upon the question of fact sought. (See Meaoham v. Burhe, 54 IS". T. 217, 220.) A seasonable request to find a particular fact is also made an essential to a valid exception to a refusal to find such fact under the present practice. (Code of Civ. Pro., § 993.) The mode of pre- senting requests for particular findings has been noticed. {Ante, p. 278.) But no steps need be taken by either party as a prelimi- nary to an exception to a ruling iipon an ordinary question of law, or upon a finding of fact unsujiported by evidence. When and how exceptions should be taken to the report or decision. — Where an issue of fact is tried by a referee, or by the court without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted, must be taken, by fil- ing a notice of the exception in the clerk's office, and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken, at any time before the expiration of ten days after ser- vice upon the attorney for the exceptant, of a copy of the decision of the court, or report of the referee, and a written notice of the entry Exceptions to Findings, ok Refusals to Find. 297 When and liow exceptions sliould be taken to the report or decision. of judgment thereupon. If the notice of exception is filed before the entry of final judgment, it must be inserted in the judgment-roll ; if afterward, it must be annexed to the judgment-roll. In either case, it constitutes a part of the papers, upon -which an appeal from the judgment must be heard. (Code of Civ. Pro., § 994.) The exception is thus allowed to be made because there was no opportunity to make it at the trial, and it must be made within the time as a condition to the right to insert it in a case. {Johnson v. Whitlock, 13 N. Y. 344, 347.) An extension of time to make a case does not extend the time to take exceptions beyond that fixed by the Code. {Hatch v. Fogerty, 7 Rob. 488 ; Beach v. Gregory, 3 Abb. 78 ; 1 Hill, 201. ) But in a proper case leave may be given to file the exceptions nunc pro tunc. {Ooe v. Coe, 14 Abb. 86 ; Bortle V. Mellen, id. 288 ; Sheldon v. Wood, 14 How. 18 ; 6 Diier, 679 ; Strong v. JJardenhurgh, 25 How . 438, 439 ; Code of Civ. Pro., § 783.) The exceptions taken should be clear, pointed and specific. If in- tended to reach several refusals of the court or referee to hold as requested upon matters of law, a separate exception should be taken to each refusal, as a general exception to the rulings will not be availing on appeal unless they were all wrong. {Magie v. Bake?; 14 N". Y. 435. See Lawrence v. Fowler, 20 How. 407 ; Newell v. Doty, 33 IST. Y. 83.) An exception " to each and every point " of a referee's report, " both as to its findings of fact and conclusions of law," is too general to present any question for review. ( Wheeler V. Billvngs, 38 JST. Y. 263 ; Ward v. Craig, 87 id. 550, 551. See Middleirook v. Broadbent, 47 id. 443, 448.) But parties are not held to the same strict rule in excepting to the conclusions of law of a court or referee as in excepting to a charge to the jury, as there is no power in the court to correct the error, and the reason for the strict rule fails. {Newlin v. Lyon, 49 N. Y. 661.) A ruling upon a question of law is sufficiently excepted to if pointed out with certainty in the exception, though in language dif- ferent from that in which it is stated by the court or referee. Thus an exception " to all and every the conclusions of law in said decis- ion and judgment contained, to-wit," then setting forth the sub- stance of each conclusion of law stated by the court in the decision, is suflicient. {Spaulding v. Strong, 38 IST. Y. 9, 16.) A specific exception to each conclusion of law separately is all that is necessary. {Hatch v. Fogerty, 7 Rob. 488.) And where the decision of a ques- 38 298 Trial Peactict!. When and how exceptions ahouM be taken to the report or decision. tion consists of a single conclusion of law, a general exception is sufficient. {Cythe v. LaFontain, 51 Barb. 186.) An exception by the defendant's counsel to a conclusion that the plaintiff is entitled to recover a specified sum raises the question whether the plaintiff is entitled to recover that entire sum. {Briggs V. Boyd, 56 N. Y. 289.) But an exception " to that part of said de- cision which allows " a specified sum " as interest," is not available to raise the question that interest was allowed from too early a date. Such an exception will be construed as a general exception to the allowance of any interest whatever. {McMahon v. New York <& Erie E. E. Co., 20 N. Y. 463, 470 ; Oraham v. Chrystal, 2 Keyes, 21; 37 How. 279; 1 Abb. [N. S.] 121.) And an exception to a finding that a widow is entitled to dower, determining the amount, which does not point out wherein the finding is erroneous, is insuffi- cient to raise the question whether or not the amount found was correct. {Matthews v. Duryee, 4 Keyes, 525.) So an exception " to the direction for the entry of judgment in favor of the plaintiff," if strictly and technically construed, is not an exception as to the amount for which judgment was directed to be entered, but is an exception to the direction that judgment be entered in favor of the plaintiff only. (MandLemlle v. Marvin, 30 Hun, 282.) So when a request to find embraces two propositions, one of which the party is not entitled to, a general exception to a refusal to find as requested is insufficient. {EeiWrun v. Hammond, 13 Hun, 474, 482.) A general exception to the report of a referee " for various other errors, insufficiencies and inaccuracies," will not raise the question as to whether a referee erred in imposing the entire costs of a pro- ceeding upon the appellant. {Oppenheimer v. Walker, 5 N. Y. Sup. Ct. [T. & C] 325 ; 3 Hun, 30.) A general exception to the decision or report will bring up for review, at most, only the ques- tion whether, upon the facts as found, the law has been correctly de- cided. {Belknap v. Sealey, 14 N. Y. 143 ; Anderson v. West, 6 Jones & Sp. 441, 447 ; Lefler v. Field, 50 Barb. 407.) No exception lies to the refusal of the referee to find xipon a ques- tion of fact not embraced in the issues. ( Wiltsie v. Eaddis, 4 Abb. [N. S.] 393 ; 4 Abb. Ct. App. 624.) And no exception need be taken to a finding upon a controverted question of fact in order to justify a review of the evidence by the General Term for the pur- pose of determining whether the finding was against its weight. {Mead v. Smith, 28 Hun, 639 ; Eoe v. Eoe, 14 id. 612 ; Hatch v. Exceptions to Findings, oe Refusals to Find. 299 Effect of insufficient exceptions. Fogerty, 7 Eob. 488 ; Mayor v. Frhen, 10 Bosw. 189 ; Dainese v. Allen, 4 Jones & Sp. 98 ; Zejler v. Field, 50 Barb. 407.) An ex- ception cannot be taken to a ruling upon a question of fact. (Code of Civ. Pro., § 992.) If a finding of fact is made without any evi- dence tending to sustain it, it is a ruling upon a question of law (Id., § 993), and to such finding an exception is necessary. (Id., §§ 992, 994, 995, 996.) But no exception is necessary where there is evidence tending to sustain the finding, and the court or referee reaches a conclusion upon conflicting evidence. {Mead v. Smith, 28 Hun, 639.) Effect of insufficient exceptions. — The provisions contained in the Code of Civil Procedure for taking exceptions to the rulings of the court or referee during the trial, and to the conclusions of law as set forth in the findings, and as to the manner of bringing such exceptions before the General Term for review were intended as a rule of procedure and practice, and as a convenient way of bringing the attention of the court to the errors and mistakes which are claimed by the appellant to have occurred upon the trial ; but there is no statutory provision or series of judicial decisions prohibiting the General Term from correcting any mistake or error which may have been committed by the trial court, although no exception was taken distinctly indicating the alleged error. On the contrary, it has been frequently decided that the General Term has the power, and that it is its duty, to examine and determine whether the con- clusions of the trial court were according to the evidence and the justice of the case, and if the court reach the conclusion that sub- stantial error has been committed, to set aside the judgment and order a new trial. (Mandeville v. Marvin, 30 Hun, 282, 288. See Hamilton v. Third Ave. E. B. Co., 53 IST. Y. 25, 27 ; Grocers' Bwnk V. Penfield, 7 Hun, 279, 284 ; Roosa v. Smith, 17 id. 138 ; Godfrey v. Moser, 66 N". Y. 250.) But if the appellant fails at the General Term, the want of a proper exception will be fatal to the right to review the error in the Court of Appeals. {Keogh v. Wea- teroelt, 66 IST. T. 636. See Briggs v. Waldron, 83 id. 582.) CHAPTER VI EEPEKENCES INCIDENTAL TO THE TRIAL OF THE ISSUES. SECTION I. Appointment of the Referee, and Gbneeal Peaotice on the Kepeeence. Between the commencement of an action and its final termination many questions may incidentally arise which must be determined in some manner in order that the court may be able to grant the relief, or to prescribe the remedies to which the parties are entitled. These questions may be more or less remotely connected with the issues, and may arise at any stage of the action. The court may determine these questions for itseK, or may send them to a referee for determination. The latter practice is common where the deter- mination of the questions will require a protracted investigation of facts. References are frequently ordered to ascertain the right, title or interest of the several parties in lands sought to be parti- tioned ; or to ascertain whether third persons have a lien upon lands involved in an action ; to ascertain the value of partnership or other property ; to make computations ; to make and state an account, and the like. So referees are often appointed to admeasure dower; to make sales ; and to do various other acts necessary to carry into effect the interlocutory or final judgment of the court. The practice upon the appointment of the referee will depend to some extent upon the nature of the reference, and the stage of the action at which the reference is ordered. Compulsory reference on motion of the conrt. — The Code provides that " where a provision of this act authorizes the court to approve an undertaking, or the sureties thereto ; or to make an ex- amination or inquiry ; or to appoint an appraiser, receiver or trustee ; it may direct a reference, to one or more persons designated in the order, either to make the approval, examination, inquiry or appoint- ment, or to report the facts to the court, for its action thereupon. And where, according to the practice of tlie Court of Chancery, on the 31st day of December, 1846, a matter was referable to the Appointment of the Referee, and General Practice, etc. 301 Compulsory reference on motion of the court — Motion to refer. clerk, or to a master in Chancery, a court having authority to act thereupon may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in Chancery, except where it is otherwise speeiahy pre- scribed by law." (Code of Civ. Pro., § 827.) It also provides that " the court may likewise, of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the informa- tion of the court ; and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or other- wise, except upon the pleadings." (Id., § 1015.) Tinder one or the other of these sections authority is conferred upon the court to appoint a referee to determine any question, not embraced in the issues, arising incidentally in the progress of the trial ; and the exercise of this authority is in no respect dependent upon the consent of the parties. Where a judgment requires the appointment of a referee to do any act thereunder the referee is usually appointed by the judgment. Motion to refer. — When it is necessary to apply to the court for the appointment of a referee during the progress of the trial, the proceedings upon the application Avill be substantially the same as upon any other motion. The application will be made at Special Term upon due notice to the attorney or attorneys for such of the parties as have appeared, and will be based upon an affidavit showing the pendency and nature of the action, the proceedings had therein, and any fact tending to show that a reference is necessary or proper. The affidavit upon which the application is based will be served with the notice of motion. Upon the hearing the motion may be opposed by the adverse party upon affidavits or otherwise, and upon all the facts as presented by the moving papers, and the papers, if any, read in opposition thereto, the court will make an order granting or deny- ing the motion. (For practice on a motion to refer, see ante, p. 69.) (For forms, see Appendix.) The rules of court provide that the referee to be appointed in foreclosure cases to compute the amount due, or to sell mortgaged premises, shall be selected by the court, and that the court shall not appoint as such referee a person nomi- nated by the party to the action or his counsel. (Rule 61.) The 302 Trial Practice. Bringing the matter referred to a hearing — Proceedings upon the hearing. coui-t also selects the referee to take proof of title, etc., in partition. (Kule 66.) Bringing the matter referred to a hearing. — Where a refer- ence is ordered on appHcation to the court, the party obtaining the order should have it duly entered with the clerk, and should cause a certified copy to be served upon the attorney for the adverse party and upon the referee. If the referee is appointed by a judgment, a copy of the judgment, with notice of its entry, together with the report or decision upon which it was based, if the trial was by the court or a referee, with notice of filing, should be served upon the attorney for the unsuccessful party, for the purpose, if no other, of limiting his time to appeal (See Code of Civ. Pro., § 1351), or of tak- ing exceptions preliminary to a motion for a newtrial. (Id., § 1001.) A copy of the judgment should also be delivered to the referee as his commission to act in the matter. (See Bonner v. McPhail, 31 Barb. 106.) The moving party should then obtain from the referee an appoint- ment of a time and place of hearing, and serve a copy thereof with the notice of hearing upon the attorney for the adverse party. (See ante, p. 125.) Either party may then subpcena witnesses to give testimony upon the hearing in the same manner as upon a trial of the issues. (Code of Civ. Pro., § 1017. See ante, p. 80.) Proceedings upon the hearing. — The proceedings upon the hearing wiU depend somewhat upon the nature and scope of the reference. If the reference is one embraced within section 1015 of the Code, and any testimony is to be taken, the referee, before pro- ceeding to hear the testimony, must be sworn faithfully and fairly to determine the questions referred to him, and to make a just and true report according to the best of his understanding, unless the oath is waived. (Code of Civ. Pro., § 1016. See ante, p. 263.) In all references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses must be signed by them and filed with the report. (Gen. Kule 30.) If the reference is merely to take and report the evidence with the referee's opinion thereon, it is the duty of the referee to take all the evidence that either party may offer, leaving it to the court, upon the hearing of the matter, to decide what is Appointment of the Refeeek, and General Peactioe, etc. 303 Filing or delivery of the report — Exceptions to the report. or is not competent. The referee in such case has no power to pass upon objections to the evidence. {Fox v. Moyer, 54 N. Y. 125 ; Scott V. Williams, 23 How. 393; 14 Abb. 70.) Filing or delivery of the report. — If the reference is ordered under section 1015 of the Code, the referee's written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the matter is finally submitted, otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such a case, the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees. (Code of Civ. Pro., § 1019.) (For the practice on a failure by the referee to make his report in due season, see write, p. 288.) If the report is delivered to one of the parties in due season, or before service of a notice of election to end the reference, it should be filed, with the testimony, with the clerk. (Gen. Rule 30. See Pope V. Perault, 22 Hun, 468.) A copy of the report, with notice of the fihng, should be served upon the attorney for the unsuccess- ful party in order to limit the time for filing exceptions. (For form of notice, see Appendix.) Exceptions to the report. — A report of a referee upon a reference other than of the issues or to compute the amount due in foreclosure cases, if duly filed, becomes absolute, and stands as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filecj or served within such time, they may be brought to a hearing at any Special Term thereafter on the notice of any party interested therein. (Gen. Rule 30.) This rule ap- plies to all references other than of the issues or to compute the amount due in foreclpsure cases. {Matter of Guardian Sav. Bh., 9 Hun, 267. But see Matter of Attorney- General v. Continental Life Ins. Co., 64 How. 93.) If a party neglects to except to a ref- eree's report for eight days after notice of its filing, it becomes absolute under the rule, although it is defective on its face. ( Gatlin V. Catlm,, 2 Hun, 378.) The mode of taking exceptions to the re- port of a referee has been already noticed. (See onfc, p. 296.) 304 Teial Practice. Motion for a new hearing — CoBta. Motion for a new hearing. — Where a reference directed as pre- scribed in section 1015 of the Code has been executed, either party may apply for a ne-w hearing upon proof by affidavit that error was committed to his prejudice upon the hearing or in the report. In a proper case the application may be granted after judgment has been entered. In that case the judgment may be set aside either then or after the new hearing, as justice requires. ^(Oode of Civ. Pro., § 1232.) Where a reference has been ordered to take proof of certain facts for the information of the court, and the report is not sufficiently specific to furnish the information desired, the matter may be sent back to the referee for more specific findings. {Kent v. Quicksilver Mining Co., 23 Hun, 199. See JEmpire Building, etc.. Association V. Stevens, 8 id. 515.) These findings may be embraced in a supple- mental report. (Id.) The application for a new hearing should be made at a Special Term (See Gen. Rule 38) upon the usual notice. (See Code of Civ. Pro., § Y80.) The motion is to be based upon affidavits showing that error was committed to the prejudice of the moving party upon the hearing or in the report. (Id., § 1232.) These affidavits should be served with the notice of motion. The adverse party may oppose the motion upon counter-affidavits or otherwise, and if, upon the hearing, the court is satisfied that error was committed to the preju- dice of the moving party, a new hearing may be directed before the same or another referee. (For forms, see Appendix.) Costs. — The costs upon a reference to ascertain and determine the damages sustained by reason of an injunction (Code of Civ. Pro., §§ 623, 624) ; or to approve an undertaking or the sureties thereto ; or to make an examination or inquiry ; or to appoint an appraiser, receiver or trustee ; or iipon a reference substituted for a reference to a clerk or master in Chancery according to the practice of the Court of Chancery (Id., § 827) ; or to take an account and report to the court thereon ; or to determine and report upon a question of fact arising in any stage of the action, upon motion or otherwise, except npon the pleadings (Id., § 1015) ; may be awarded absolutely or to abide the event of the action, or of the reference to any party in the dis- cretion of the court or judge. (Id., § 3236.) The costs so awarded will be a sum fixed by the court or judge, not exceeding $10 besides necessary disbursements for printing and referee's fees. (Id., § 3251, subd. 3.) Refeeence to Take and State an Account. 305 Reference to take and state an account. SECTION II. Refeeence to Take and State an Account. Under the system of practice existing before the Code, the rights of parties to suits in equity were, in the first instance, determined upon the hearing, and if it then appeared that accounts must be settled in order that a complete disposition might be made of the case, an interlocutory decree was entered, declaring such rights, the manner in which the accounting was to be had, and referring the case to a master before whom the account should be taken. (See 1 Barb. Ch. Pr. 327.) The same practice, substituting a referee for the master, was con- tinued under the former Code {Mundorff v. Mundorff, 1 Hun, 41 ; 3 N. Y. Sup. Ct. [T. & C] 171 ; 59 N. Y. 635 ; Produce Bank of N. Y. V. Morton, 8 Jones & Sp. 328, 337), and is preserved under the present system. (Code of Civ. Pro., § 1015.) Substantially the same course of procedure may be adopted when the trial is by a referee. Although all the issues in an equity action have been sent to a referee to hear and determine, if on hearing the evidence upon those issues it appears that the taking of an account is necessary to the complete disposition of the case, the referee may decline to take and state the account, and may make and deliver his report determining the rights of the parties, and directing a further hearing to settle the accounts between them, or he may himself take and state the account and in his report direct the final judgment. In the former case the report of the referee takes the place of the interlocutory judgment in Chancery. "Which mode of procedure is the better practice does not seem to be determined. (See Mundorff V. Mundorff, 1 Hun, 41 ; Palmer v. Palmer, 13 How. 363 ; Hathaway v. Russell, 13 Jones & Sp. 538 ; Pratt v. Sl/iles, 9 Abb. 150 ; 17 How. 211 ; McMahon v. Allen, 27 Barb. 335 ; 7 Abb. 1 ; Bantes v. Brady, 8 How. 216.) If the referee i-enders a report directing an interlocutory judgment and an accounting, the Special Term may then send the case back to the same referee to take and state the account, or may appoint another referee for that purpose. (Mundorff v. Mundorff, 1 Hun, 41.) The proceedings upon a reference to take and state an account do not seem to be regulated by any express provision of statute or rule of practice, and therefore are to be governed by the practice for- 39 306 Teial Peactice. Reference to take and state an account merly existing in the Court of Chancery or Supreme Court. (See Gen. Eule 85 ; Wiggin v. Gaus, 4 Sandf . 646 ; Hathaway v. Rus- sell, 13 Jones & Sp. 540.) The 107th rule of the Court of Chancery provided that " all parties accounting before a master shall bring in their accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party upon interroga- tories as the master shall direct. On any reference to take or state an account the master shall be at liberty to allow interest as shall be just and equitable, without any special directions for that purpose unless a contrary direction is contained in the order of reference. And every charge, discharge or state of facts brought in before a master shall be verified by oath as true, either positively or upon information and belief." Although the formal mode of proceeding under the Chancery rules need not necessarily be pursued on a reference under the present Code, yet a party obtaining the reference has the right, if he demands it, to require the adverse party to bring in a formal account in the form of debit and credit as required by the Chancery rule ; that the account so brought in shall be duly verified as required by the former practice ; and that the adverse party be examined upon interroga- tories. {Hathaway v. Russell, 13 Jones & Sp. 538.) The account presented to the referee must be the whole account, including debits and credits, for the whole time the party is held accountable, as established by the decretal order of the court. It must be accom- panied by the usual affidavit of the party as to the correctness of the several items on both the credit and debit side of the account, accord- ing to the best of his knowledge and belief, and that he does oot know of any error or omission in the account to the prejudice of any of the other parties to the cause in which such account is exhibited. (Id. ; Story v. Brown, 4 Paige, 1 12 ; Benson v. LeRoy, 1 id. 122 ; Wiggin v. Oaus, 4 Sandf. 646.) Under the old practice the exami- nation might be either upon oral questions or upon interrogatories ; but the character of the examination was the same under either method. {Benson v. LeRoy, 1 Paige, 122.) The testimony taken before the referee should be signed by the witnesses, and should be filed with the report ; and a copy of the report and notice of the filing should be served upon the attorney for the adverse party. Exceptions to the report may be filed within eight days after service of the notice {ante, p. 303), and brought to a Refeeenoe to Asoeetain Liens. 307 Interlocutory judgment — Reference to ascertain liens. hearing by either party, or a motion for a new hearing may be made by either party upon affidavits showing that error was committed to his prejudice upon the hearing or in the report. {Ante, p. 304.) SECTION III. Refeeenoe to Ascertain Liens. Before an interlocutory judgment for the sale of real property is rendered in an action for partition, the court must, either with or without application by a party, direct a reference to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstanding lien. (Code of Civ. Pro., § 1561.) A similar reference must be directed before an in- terlocutory judgment is rendered for the sale of the property in an action for dower. (Id., § 1621.) The proceedings upon the refer- ence will be the same in either action. (Id.) The practice on the application for the appointment of a referee to ascertain liens is the same as in other interlocutory references. (See ante, p. 301.) (For form of the order, see Appendix. Before proceeding with the reference the referee must cause a notice to be published once in each week for six successive weeks in a newspaper published in each county wherein the property is sit- uated, requiring each person, not a party to the action, who at the date of the order had a lien upon any undivided share or interest in the property, to appear before the referee at a specified place and on or before a specified day, to prove his lien, and the true amount due or to become due to him by reason thereof. (Code of Civ. Pro., § 1562.) (For form of notice, see Appendix.) The statute requiring the referee to publish this notice is impera- tive. Under the former practice it was not usual for the referee to publish the notice unless by advice of the court, or unless publication was required by some party to the suit. (See Gardiner v. Luke, 1^ Wend. 269 ; Noble v. Cromwell, 37 How. 289 ; 3 Abb. Ct. App. 382 ; Mall V. Partridge, 10 How. 188.) The statute under which these decisions were made differs materially from the statute above cited. 308 Trial Practice. References as to title, interest, etc. Upon the day fixed for the hearing, if any persons not parties appear and claim a lien upon the undivided share or interest of any party, the referee will proceed to take proof thereof. Any party against whose share a lien is claimed may contest its validity, and the referee has power to pass upon the ques- tion. The inquiry as to the existence and amount of the lien in- volves the further question of its validity in case its validity is in dispute. (Hoisted v. Halsted, 55 N. T. 442. See Dunhwm v. Minard, 4 Paige, 441 ; Bergen v. Snedecker, 8 Abb. N. C. 60.) The inquiry is limited to liens existing at the date of the order of reference. Before proceeding to take the testimony the referee should be sworn to faithfully and fairly determine the questions referred to him, and to make a just and true report according to the best of his understanding. (Code of Civ. Pro., § 1016.) The tes- timony taken before him should be signed by the witnesses and filed with his report. (Gen. Rule 30.) The referee must report to the court vrith all convenient speed the name of each creditor whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof, and the amount due or to become due thereon. (Code of Civ. Pro., § 1562.) SECTION IV. References as to Title, Interest, etc. The Code requires that the complaint, in an action for partition, shall describe the property in suit with common certainty, and shall specify the rights, shares and interests therein of all the parties, so far as the same are known, to the plaintiif. (Code of Civ. Pro., § 1542.) It also provides that the title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer; that the title or interest of any defendant in the prop- erty, as stated in the complaint, may be controverted by his answer, or by the answer of any other defendant ; that the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant, and that the issues so joined must be tried and determined in the action. (Id., § 1543.) These issues, with the others joined in the action, are triable by jury (Id., § 1544), but may be referred, by consent, or may be tried by the court without a jury, if no jury trial is demanded. If all the par- ties are adults, and appear and plead, these issues will be deter- References as to Title, Inteeest, etc. 309 Heferences as to title, interest, etc, mined witli the others upon the trial, and will be disposed of by the verdict, decision or report. But the statute requires that where a de- fendant has made default in appearing or pleading, or where a party is an infant, the court shall ascertain the rights, shares and interests of the several parties in the property, by a reference or other- wise, before interlocutory judgment is rendered in the action. (Id., § 1545.) The general rules of practice provide that where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at a Special Term for an order of reference to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyance by which the same are held, and that the referee shall, in all cases, be selected by the court. (Gen. Rule 66.) So in an action by a tenant in common or joint tenant against his co- tenant for waste, if the plaintiff elects to have partition of the prem- ises instead of a judgment for treble damages, and the pleadings, ver- dict, report, or decision, do not determine the rights and interests of the several parties in the property so held in joint tenancy or in com- mon, the court must ascertain them by a reference or otherwise. (Code of Civ. Pro., § 1657.) The practice in applying for the reference and the mode of bring- ing the matters referred to a hearing is the same substantially as in the cases already noticed. "When the matter is brought to a hearing before the referee he should require the complainant to produce abstracts of title as tenant in common in the premises, if that is the character of the tenancy, and to trace it back to the common source of title, and to give an abstract of the conveyance of the several undivided shares of the parties in the premises from the time the several shares were united in one common source. {Hamilton v. Morris, 7 Paige, 39.) The referee may examine witnesses as to any fact bearing upon the question before him. After due consideration of the document- ary and oral evidence produced before him, the referee should make up and sign his report and deliver, it to one of the parties or file it with the clerk. The duty of the referee is to collect the evidence and report his conclusions for the use of the court ; and if in his re- 310 Trial Practice. References to make sales — Security upon sale by a referee — Notice of sale. port he states all the facts correctly, but errs in the statement of the legal consequences of those facts, the court, upon the coming in of the report, may correct it in respect to the erroneous conclusion, although no exceptions have been taken. It is not necessary to send the report back to the referee to be corrected in that particular. {Austin V. Ahearne, 61 N. Y. 6.) SECTION V. Refbrbnobs to Make Sales. A referee is frequently appointed in real actions to make a sale of lands forming the subject of the action, though in most cases the same duties could be performed by the sheriff of the county in which the lands are situated. The referee is appointed by the judgment directing the sale. The Code provides generally that, " except where special provision is otherwise made by law, real property adjudged to be sold must be sold in the county where it is situated by the sheriff of the county, or by a referee appointed by the court for that purpose, who must execute a conveyance to the purchaser. The conveyance is effectual to pass the right, title or interest of a party adjudged to be sold. But nothing contained in this section shall be deemed to repeal or modify the provisions of any law specially regulating the sale of real property under a judgment or decree of any court in any particular county of the State." (Code of Civ. Pro., § 1242.) Security upon sale by a referee. — Where a referee is appointed by the court to sell real property, the court may provide for his giving such security as the court deems just, for the proper applica- tion of the money received upon the sale, or for the payment thereof by the purchaser directly to the person or persons entitled thereto, or their attorneys. (Id., § 1243.) Notice of sale. — Notice of sale made by a referee in an action relating to real property must be given by the referee as follows : 1. A written or printed notice of the time and place of sale must be conspicuously fastened up at least forty-two days before the sale in three public places in the town or city where the sale is to take place, and also in three public places in the town or city where the prop- erty is situated if the sale is to take place in another town or city. 2. A copy of the notice must be published at least once in each of the six weeks immediately preceding the sale in a newspaper pub- References to Make Sales. 311 Notice of sale. lished in the county, if there is one, or if no newspaper is published therein, then in such newspaper published elsewhere as the court may designate ; or if the property is situated wholly or partly in a city in which a daily newspaper is published, in that case, by pub- lishing notice of the sale at least twice in each week for three suc- cessive weeks immediately preceding the sale in one, or in the city of New York, or tlie city of Brooklyn, in two of such papers. (Code of Civ. Pro., §§ 1434, 1678; Laws of 1884, chap. 133, §§ 1, 2, 4.) The provision of the statute as to publication will be complied with by a publication once in each week for six weeks before the sale, although six full weeks do not intervene between the day of the first publication of the notice and the day fixed for the sale. {Olcott V. RoUnson, 21 N. Y. 151 ; Wood v. Morehouse, 45 id. 368. See Merritt v. Yillage of Portchester, 8 Hun, 40 ; Chamberlain v. Dempsey, 22 How. 356 ; 13 Abb. 421.) A week is a period of seven days, of time commencing at twelve o'clock on Saturday night and ending at the same hour. (See Ronlcen- dorff v. Taylor, 4 Peters, 349, 361 ; Bunce v. Reed, 16 Barb. 347 ; Anonymous, 1 Wend. 90 ; Steinle v. Bell, 12 Abb. [N. S.] 171.) The period of a week is, therefore, seven full days ; and when a publication is directed to be made twice a week for three weeks, it means that there shall be a period of twenty-one days before the sale, calculated by weeks, during each of which two publications shall be made, and that this shall occur without regard to the day of the week when the publication was commenced. {Valentine v. MoOue, 26 Hun, 456.) In preparing the notice of sale it is, therefore, indispensable that the date of sale fixed therein should be sufliciently distant to permit full compliance with the statute, both as to publication and posting. Where lands in the city of New York or Brooklyn are to be sold under a decree, order or judgment of any court, the time fixed for the sale must be between twelve o'clock at noon and three o'clock in the afternoon, unless a sale at a different hour is specially directed ; and the place of sale in the city of New York, in the absence of some special direction or local rule, must be the Exchange Sales Eooms, now located at No. Ill Broadway. (See Eule 62.) The notice of sale is usually prepared by the attorney for the plaintiff, and signed by the referee. Though not required by the statute, it is the proper practice to insert the title of the same either in full or in an abbreviated form in the notice of sale. (See Ray v. Oliver, 6 Paige, 489.) 312 Teial Pbaotioe. Postponement — Mode of sale. If a plaintiff dies pending the publication of the notice of sale in an action of partition, and a new party is substituted as his suc- cessor in interest, the referee may properly complete the publication of the notice in its original form. (Thwing v. Thwing, 18 How. 458 ; 9 Abb. 323. See Valentine v. McGue, 26 Hun, 456.) A sale of real estate under a decree of foreclosure will not be set aside merely because the notice of sale was not published in aU the editions of the paper issued on the days of publication, unless the omission was followed by some injurious results. {Everson v. Johnson, 22 Hun, 115.) No personal service of the notice of a sale under a judgment of the court is required. {GaUup v. Miller, 25 Hun, 298.) Postponement. — A referee, in making a sale, acts as an officer of the court, and not as the mere servant of the plaintiff. He has a discretion to exercise ; and while it is proper that he should consult the wishes of the plaintiff's attorney to a reasonable extent in the matter of postponing the sale, yet he is bound to regard the rights of all the parties, and if he arbitrarily and unreasonably refuses the request of the defendant's attorney for a brief delay in a proper ease, the court may redress the wrong done by setting aside the sale. (See Breese v. Bushy, 13 How. 485. If at the time appointed for the sale there are no bidders, or if from the members in attendance, or other sufficient cause, the referee is satisfied that a fair price cannot be obtained, it is his duty to postpone the sale, and not sacrifice unnecessarily the property. {Bicknell v. Byrnes, 23 How. 486.) If, for any reason, it becomes necessary to adjourn the sale to a futtire day, the referee should publicly announce the time to which the sale is postponed (See La Farge v. Van Wagenen, 14 How. 54), and if the postponement is for a sufficient length of time, the original notice of sale, with a notice of the postponement attached, should be published as well as posted in the manner required by statute for the publication and posting of the original notice. The statute requires that notice of the postponement of sale shaU be published in the paper or papers wherein the notice of sale was pub- lished. (Code of Civ. Pro., § 1678.) Mode of sale. — It is the duty of the referee to attend at the time and place of sale, and proceed to sell the property at public Kefbeences to Make Sales. 313 Mode of sale. auction to the highest bidder. (Code of Civ. Pro., § 1678.) He should first read the notice of sale for the purpose of informing the bidders as to the location and general description of the property to be sold. He should then announce the terms of sale if they are not contained in the, notice. (Bicknell v. Byrnes, 23 How. 486.) The statute requires that the terms of sale shall be made known at the time of sale, and if the property or any part thereof is to be sold subject to a right of dower, charge or lien, that fact must be de- clared at the time of sale. (Code of Civ. Pro., § 1678.) If the sale is in an action of partition and a party had an existing right of dower in the entire property directed to be sold at the time the in- terlocutory judgment was rendered, the judgment will direct whether the right of dower shall be excepted from the sale or whether it shall be sold. (Id., § 1567.) It will also direct the terms of credit which may be allowed for any portion of the purchase-money which is to be invested. (Id., § 1573.) If the sale is in an action for dowef, and the right of dower is inferior to some other lien upon the property, the judgment may direct that the property be sold either subject to the lien, or discharged of the lien. (Id., § 1622.) In making the sale the referee should follow any express direction contained in the judgment. If the property con- sists of two or more distinct buildings, farms or lots, they must be sold separately, unless otherwise ordered by the court, except that where two or more buildings are situated on the same city lot they may be sold together. (Id., § 1678.) After announcing the terms of sale the referee should offer the premises, or distinct parcels of the same, to the highest bidder, and receive bids so long as they are offered, waiting a reasonable time after a bid is made for another, and if no other is made should strike off the premises to the highest bidder. He should then mark down the premises to the purchaser, and require him to sign a memorandum of the sale containing an agreement to complete the purchase. {Bicknell v. Byrnes, 23 How. 486 ; 1 Barb. Ch. Pr. 528.) If by the terms of the sale the money is to be paid down and the purchaser does not on demand pay the money, the referee may at once proceed and offer the premises again for sale. But if the day is permitted to pass without adjournment, and the purchaser neglects to complete his purchase, the referee may proceed to re-advertise and re-sell the premises as if no sale had been made, or may insist upon its validity and sue for the purchase- 40 314 Trial Peactice. Who may not purchase — Report of sale. money. {Bioknell v. Burns, 23 How. 486. See Robinson v. Brennan, 90 N. T. 208.) Who may not purchase. — The referee making the sale in an action of dower, waste, partition or foreclosure, or the guardian of an infant party to such action, cannot directly or indirectly purchase for his own benefit or be interested in the purchase of any of the property sold ; and a purchase made either by the referee or guard- ian in such case is absolutely void. (See Code of Civ. Pro., § 1679.) But a guardian may purchase for the benefit or in behalf of his ward where he is lawfully authorized so to do. (Id.) Report of sale. — Immediately after completing the sale in an action for the partition of lands, the referee must file with the clerk his report, under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold. (Code of Civ. Pro., § 1576.) The report in such action pre- cedes the execution of a conveyance to the purchaser or ftie distri- bution of the proceeds of the sale. (Id., § 1577.) In an action for dower the referee executes a conveyance to the purchaser immedi- ately after the completion of the sale, makes such payments out of the proceeds as are directed by the interlocutory judgment, and thereupon makes and files a report with the clerk, showing the name of the purchaser, the purchase-price paid by him, or, if the property was sold in parcels, the name of each purchaser and the price and a description of the parcel sold to him, the sums which the officer has paid out of the proceeds of the sale, pursuant to the interlocu- tory judgment, the purpose for which each payment was made, the amount and items of his fees and expenses, and the amount of the proceeds after deducting the payments. (Id., § 1623.) In an action to foreclose a mortgage the final judgment directs the sale and conveyance and the manner in which the proceeds shall be paid or invested. These directions must be strictly observed by the referee, and afterward a report of sale must be made and filed recit- ing the proceedings had upon the sale, the execution of the convey- ance to the purchaser, and the disposition of the proceeds, and, if the judgment so directs, stating the amount of any deficiency. The report should contain a history of all the proceedings of the referee under the judgment. Reference to Admeastjee Dowee. 315 Oath of referee — Proceedings upon the reference. SECTION VI. Refeeence to Admbasuee Dower. An interlocutory judgment, in an action for dower, may direct that the plaintifE's dower in the property described therein be ad- measured by a referee designated in the judgment, or by three reputable and disinterested freeholders designated therein as commis- sioners for that purpose. (Code of Civ. Pro., § 1607.) The pro- ceedings are the same, whether the dower is admeasured by a referee or commissioners. After the entry of the interlocutory judgment the plaintiff's at- torney should procure a certified copy of the judgment appointiog the referee and deliver it to the latter as his commission or authority to act. Oath of referee. — The referee, before entering upon the execu- tion of his duties, must subscribe and take an oath before an officer specified in section 842 of the Code, to the effect that he will faith- fully, honestly and impartially discharge the trust reposed in him. The oath must be filed with the clerk before the referee enters upon the execution of his duties. (Code of Civ. Pro., § 1608.) Proceedings upon the reference. — The referee must execute his duties in the manner prescribed by the statute. He must, if it is practicable, and, in his opinion, for the best interests of all the parties concerned, admeasure and lay off, as speedily as possible, as the dower of the plaintiff, a distinct parcel, constituting the one- third part of the real property of which dower is to be admeasured, designating the part so laid off by posts, stones or other permanent monuments. In making the admeasurement the referee must take into consideration any permanent improvement made upon the real property after the death of the plaintiff's husband, or after the alienation thereof by him ; and, if practicable, those improvements must be awarded within the part not laid off to the plaintiff ; or if not so awarded, a deduction must be made from the part laid off to the plaintiff, proportionate to the benefit which she will derive from so much of those improvements as is included in the part laid off to her. If it is not practicable, or if, in the opinion of the referee, it is not for the best interests of all the parties concerned, to ad- 316 Tkial Practice. Report of referee — Setting aside or confirming report. measure and lay off to the plaintiff a distinct parcel of the property, as above stated, he must report that fact to the court. The referee may employ a surveyor, with the necessary assistants to aid in the admeasurement. (Id., § 1609.) Report of referee. — The referee must make a full report of his proceedings, specifying therein the manner in which he has dis- charged his trust, with the items of his charges, and a particular de- scription of the portion admeasured and laid off to the plaintiff ; or if he reports that it is not practicable, or, in his opinion, for the best interests of all the parties concerned to admeasure and lay off a dis- tinct parcel of the property of which dower is to be admeasured, he must state the reasons for that opinion and all the facts relating thereto. The report must be acknowledged or proved, and certified in like manner as a deed to be recorded, and must be filed in the office of the clerk. (Id., § 1610.) A copy of the report, with notice of the filing, should then be served upon the attorney for the adverse party. (See Gen. Eule 30.) Setting aside or confirming report. — Upon the application of any party to the action, and upon good cause shown, the court may set aside the report, and, if necessary, appoint a new referee, who must proceed in the manner prescribed by statute with respect to the referee first appointed. (Id., § 1611.) The application to set aside the report should be made to the court at Special Term upon notice to the attorney for the adverse party. It should be based upon affidavits setting forth facts showing that the referee has pro- ceeded irregularly, or has erred in his conclusions or estimates, and that a confirmation of the report would operate to the prejudice of the moving party, and upon the exceptions filed to the report. The report must be confii-med by the court before it can be made the foundation of a final judgment. (See Code of Civ. Pro., § 1613.) The application for confirmation must be made to the court at Spe- cial Term, upon the usual notice to the attorney for the adverse party, and should be based upon the report and upon the affidavit of the moving party, setting forth the date of filing the report, the service of a copy thereof upon the adverse party, with notice of the filing, and that no exceptions have been filed thereto, if such is the fact. (For form of order of confirmation, see Appendix.) Eeference to Make Computations, etc. 317 Fees and expenses — Reference to make computations, etc. Fees and expenses. — The fees and expenses of the referee, in- cluding the expense of a survey, when it is made, must be taxed under the direction of the court, and the amount thereof must be paid by the plaintiff and allowed to her upon the taxation of her costs. (Code of Civ. Pro., § 1612.) The referee is entitled to the usual fee of $6 for each day spent in the business of the reference (Id., § 3296), and the surveyor, if any is employed, is entitled to $5 for each day actually and necessarily occupied in sm-veying, laying out, making or mapping the land. Each assistant so employed is entitled to $2 for each day actually and necessarily occupied in serv- ing under the surveyor's direction. (Id., § 3299.) SECTION VII. Reeeeence to Make Computations, etc. In an action to foreclose a mortgage, if the defendant fails to an- swer within the time allowed for that purpose, or the right of the plaintiff as stated in the complaint is admitted by the answer, the plaintiff may have an order referring it to some suitable person as referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers, and to examine and report whether the mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage has not become due. If the defend- ant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference must also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any payments which have been made, and to compute the amount due on the mortgage. (Eule 60.) The application for the appointment of a referee to make the com- putations must be made at Special Term, on notice to such of the defendants as have appeared. The motion should be made upon an affidavit stating the service of the summons upon the defendants ; the failure to answer, or the admission by the answer of the right of the plaintiffs as stated in the complaint ; whether the whole amount secured by the mortgage has become due ; and whether any of the defendants are infants or absentees. (See Anonymous, 3 How. 158.) Under the old practice where any of the defendants had raised an issue of fact by answer, the issue was brought to trial, and unless the 318 Tkial Pbaotick. Reference to make computations, etc, — Proceedings on the reference. trial resulted unfavorably to the plaintiff, the decree rendered upon the hearing directed a reference to ascertain and compute the amount due the plaintiff, and to examine as to payments, and directed that on the coming in and confirmation of the report the mortgaged premises should be sold. (See McCrackan v. Yalentine's Executors, 9 N. Y. 42.) But the report of the referee must be produced upon the application for judgment under the present rules (See Rule 60), and the appointment of the referee and the execution of the reference must, therefore, necessarily precede the final judgment. The character of the order of reference will depend on the facts set forth in moving papers. If any of the defendants are infants or absentees the order must direct referee to take proof of the facts and circumstances stated in the complaint, and to examine the plaint- iff or his agent on oath as to any payments which have been made, as well as to compute the amount due. (Rule 60. See Wolcott v. Weamer, 3 How. 159.) (For form of the order, see Appendix.) The referee appointed must be selected by the court, and a per- son nominated by a party to the action or his counsel cannot be appointed. (Rule 61.) After the referee has been appointed, the plaintiff should proceed to bring the matter to a hearing before the referee in the usual manner. (See ante, p. 302.) Proceedings on the reference, — The order appointing a referee on default in foreclosure defines his duties and limits the scope of the reference. It may not be necessary for the referee to be sworn before proceeding to take testimony (See MoGowan v. Newman, 4 Abb. JS". 0. 80), but it will be the safer practice to require the ref- eree to take the usual oath. (See Exchange Eire Ins. Co. v. Early, 4: Abb. JSr. C. 78.) The referee must require the parties to produce legal proof of every fact embraced in the reference. Witnesses must be sworn be- fore the referee as to the amount due, and he cannot base his report upon mere aflBdavits. {Security Eire Ins. Co. v. Martin, 15 Abb. 479.) In the absence of the defendant there can be no pres\imption of a waiver of any objection to the character or degree of proof. ( Wolcott V. Weawer, 3 How. 159.) But the referee may find from the recitals in the mortgage that a bond was executed with the mort- gage without other proof. {Cooper v. Newland, 17 Abb. 342. See Knickerbocker Life Ins. Co. v. Hill, 16 Abb. [N. S.J 321,) Reference to Make Computations, etc. 319 Report. Report. — A reference to compute the amount due in foreclosure cases is excepted from the application of Rule 30, requiring the tes- timony of the witnesses to be signed by them and the testimony to be filed with the report. Under the former rule, requiring the referee to report the proofs and examinations had before him, the decisions required the referee to either embody in his report the documentary evidence received upon the hearing (See 'Woloott v. Weaver, 3 How. 159), or to attach to his report an abstract of such evidence. {Secu- rity Fire Ins. Co. V. Martin, 15 A.bb. 479.) This is not now required. The report should state the referee's conclusions of fact and not the evidence upon which such conclusions are based. (For form of re- port, see Appendix.) The report should be filed and notice of the filing given to the attorneys for such of the parties as are entitled to notice of the execution of tlie reference. (See Chamberladn v. Dem/psey, 36 N. Y. 144.) The report should be presented to the court at Special Term for confirmation, and upon confirmation the computation becomes the act of the court as fully as if the court it- self had made the computation. {McGowan v. Newman, 4 Abb. N. C. 80.) The motion to confirm may be combined with the ap- plication for final judgment. Any party aggrieved by any error committed upon the hearing or contained in the report may obtain redress hj a motion for a new hearing, based upon affidavits presenting proof of the error. (See Code of Civ, Pro., § 1232.) CHAPTER Vn. PEACTICE PEOITLIAB TO THE TRIAL OF ACTIONS, EJECT- MENT, PARTITION, DOWER AND FORECLOSURE. SECTION I. Action to Recovee Real Peopeett. The issues of fact in an action of ejectment must be tried by a jury, unless a jury trial is waived or a reference is directed. (Code of Civ. Pro., § 668.) These issues will be tried as in other actions so far as relates to the general practice. The proceedings where the plaintiff has improperly joined as defendants several distinct occu- pants of distinct parcels {ante , p. 52,) or where upon the death of a party different persons have succeeded to the decedent's right, title, interest or liability {ante, p. 52,) have been already noticed. There are, however, certain proceedings which may be had after issue joined in an action of ejectment, not common to actions generally, which will be briefly noticed. Action for non-payment of rent. — " When six months' rent or more is in arrear, upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee, or as- signee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property." (Code of Civ. Pro., § 1504.) " Where a right of re-entry is reserved and given to a grantor or lessor of real property, in default of a sufficiency of goods and chat- tels whereon to distrain for the satisfaction of rent due, the re-entry' may be made, or an action to recover the property demised or granted, may be maintained, by the grantor or lessor, or his heir, devisee, or assignee, at any time after default in the payment of the rent ; pro- vided the plaintiff, at least fifteen days before the action is com- menced, serves upon the defendant a written notice of his intention to re-enter, personally, or by leaving it at his dwelling-house on the premises, with a person of suitable age and discretion ; or, if the defendant cannot be found with due diligence, and has no dwelling- Action to Keoovee Real Peopeett. 321 Action for non-payment of rent. house on the premises, whereat a person of suitable age and discre- tion can be found, by posting it in a conspicuous place on the premises." (Id., § 1505.) " At any time before final judgment for the plaintiff is rendered, and the judgment-roll is filed, in an action brought as prescribed in either of the last two sections, the defendant may pay or tender to the plaintiff or his attorney, or pay into court, all the rent then in arrear, with interest and the costs of the action to be taxed ; and thereupon the complaint must be dismissed." (Id., § 1506.) " In such an action, a verdict, report, or decision in favor of the plaintiff must fix the amount of rent in arrear to the plaintiff, or, if judgment is taken by default, the amount thereof must be ascer- tained by or under the direction of the court ; and, in either case, it must be stated in the judgment." (Id., § 1507.) " At any time within six months after possession of the property, awarded to the plaintiff in such an action, has been delivered to him, by virtue of an execution issued upon a judgment rendered therein, the defendant, or any person who has succeeded to his in- terest, or a mortgagee of the lease, or of any part thereof, who was not in possession when final judgment was rendered, may pay or tender to the plaintiff, or his executor, administrator, or attorney, or may pay into court, for the use of the person so entitled thereto, the amount of rent in arrear, as stated in the judgment, and the costs of the action, with interest, and all other charges incurred by the plaintiff." (Id., § 1508.) " Within three months after making the payment or tender, the person who made it, or his representative, may apply to the court for an order that possession of the property be delivered to him ; and thereupon, upon proof of the facts, and payment of the sum due by reason of rent accruing since the judgment was rendered, and upon compliance with all other terms to be complied with by the grantee or lessee, to the time of the application, the court must make an order, directing that possession of the property be dehvered to the applicant, who shall hold and enjoy the same, without any new grant or lease thereof, according to the terms of the original grant or lease. Notice of the application must be served upon the plaint- iff's attorney." (Id., § 1509.) " If possession of the property recovered has been delivered to the plaintiff, by virtue of an execution issued upon a judgment in the 41 322 Trial Peaotioe. Verdict, report or decision — New trial. action, the order must provide for setting off the sum which the plaintiff has made, or which he might, without willful neglect, have made of the property, during the possession thereof, against the rent accruing after the judgment was rendered, and for reimbursement to the applicant of the balance, if any, of the sum paid into court by him, after making the set-off prescribed in this section." (Id., § 1510.) Terdict, report or decision. — A verdict, report or decision in favor of the plaintiff, in an action of ejectment, must specify the estate of the plaintiff in the property recovered, whether it is in fee or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee. (Code of Civ. Pro., § 1519.) If the right or title of the plaintiff expires after the commencement of the action but before the trial, and he would have been entitled to recover, but for the expiration, the verdict, report or decision must be rendered according to the fact, and the plaintiff is entitled to judgment for his damages for the withiolding of the property to the time when his right or title so expired. (Id., § 1520.) A plaintiff recovering judgment for the property or possession of the property in an action of ejectment is entitled to recover, as dam- ages, the rents and profits, or the value of the use and occupation of the real property recovered for a term not exceeding sis years; but the damages shall not include the value of the use of any improve- ments made by the defendant, or those under whom he claims. Wbere permanent improvements have been made in good faith by the defendant, or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaint- iff, but not beyond the amount of those damages. (Id., § 1531.) New trial. — The ordinary provisions of the Code relating to new trials apply to actions of ejectment. (See New Teials, post.) In addition to these provisions the statute provides for successive new trials of the action irrespective of any exceptions taken by the un- successful party upon the trial or to the decision or report, if any, filed thereafter. The provisions of the Code in respect to such new trials are as follows : AonoN TO Recover Eeal Peopeett. 323 New trial. " Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, ren- dered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is ren- dered, and every person claiming from, through, or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title." (Code of Civ. Pro., § 1524.) " The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court upon a like application, made within two years after the second final judgment is rendered, and the judgment-roll is filed, may make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is sat- isfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section." (Id., § 1525.) The first new trial is a matter of right upon the payment of costs and damages. The court has no discretion to exercise upon the ap- plication. {^Rogers v. Wing, 5 How. 50.) But the application for a second new trial is addressed to the judicial discretion of the court, and should be denied unless it is made to appear to the satisfaction of the court that by a new trial justice will be promoted, and the rights of the parties more satisfactorily ascertained and established. {Hofrris v. Wwite, 54 How. 113.) The Code further provides as follows : " A final judgment for the plaintiff, rendered in an action specified in this article, otherwise than upon the trial of an issue of fact, is, after the expiration of three years from the filing of the judgment- roll, conclusive upon the defendant, and every person claiming from, through or under him, by title accruing, either after the judgment- roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of 324 Teial Pbactice. New trial — Action for partition. this title. But within five years aftei" the judgment-roll is filed, the court, upon the application of the defendant, his heir, devisee, or assignee, and upon payment of all costs and damages awarded to the plaintiff, must make an order vacating the judgment, and grant- ing a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and es- tabUshed ; but not otherwise." (Code of Civ. Pro., § 1526,) " In a case specified in the last section, if the defendant is, at the time of the filing of the judgment-roll, either 1. Within the age of twenty-one years ; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon convic- tion of a criminal offense, for a term less than for life ; The time of such a disability is not a part of the three years, spe- cified in the last section ; but such a defendant, his heir, devisee, or assignee, may commence an action for the recovery of the real prop- erty claimed, at any time within three years after the disability ceases, but not afterward." (Id., § 1527.) " The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear ; or in a case to which section M5 of this act is applicable." (Id., § 1528.) "Where the plaintiff has taken possession of real property by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section 1525 or section 1526 of this act. In such a case, if the de- fendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property ; and he may have an execution thereupon for the delivery of the pos- session to him, as if he was plaintiff." (Id., § 1529.) " Upon a new trial, granted as prescribed in this article, the de- fendant may show any matter in defense, which he might show to entitle him to recover the possession of the property, if he was plaintiff in the action." (Id., § 1529.) SECTION" II. Action fob Paetition. Issues of fact in an action for partition are triable by jury, but may be tried by the court or a referee if a jury trial is waived or the parties consent to a reference. Whichever form of trial is adopted, the practice on the trial to the rendering of the verdict of Action foe Paetition. 325 Actual partition or. sale. the jury, or the filing of the decision of the court or the report of the referee will be substantially the same as on the trial of other actions. Ordinarily the principal issues to be determined relate to the right, title or interest of the several parties in the property sought to be partitioned. The title or interest of the plaintiff in the prop- erty as stated in the complaint may be controverted by the answer ; the title or interest of any defendant in the property, as stated in the complaint, may be controverted by his answer or the answer of any other defendant ; and the title or interest of any defendant as stated in his answer may be controverted by the answer of any other defendant. These issues must be tried and determined in the action. (Code of Civ. Pro., § 1543.) Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares, and interests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action. (Id., § 1545.) The proceedings upon a reference as to the rights, shares or interests of the several parties are considered elsewhere. (See ante, p. 308.) Actual partition or sale. — The question whether the property involved in the action shall be actually divided into parcels and allotted to the parties according to their respective rights and inter- ests, or whether the property shall be sold and the proceeds of the sale divided between the parties instead of the property itself, should be determined before any judgment is rendered in the action, if the case is one in which a sale may be decreed. It is not in every action of partition that a sale can be ordered. The statute provides that " where two or more persons hold and are in possession of real prop- erty as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property according to the respective rights of the persons interested therein ; and for a sale thereof, if it appears that a partition thereof cannot be made without great prejudice to the owners." (Code of Civ. Pro., § 1533.) If the action is brought under this section, and it is found by the verdict, report or decision, or if it appears to the court, upon the application for judgment in favor of the plaintiff, that the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the 326 Teial Pkaotioe. Actual partition or Bale. owners, the interlocutory judgment must direct that the property, or the part thereof which is so circumstanced, be sold at public auc- tion ; otherwise it must direct that partition be made between the parties according to their respective rights, shares and interests. (Id., § 1546.) If there is no finding that the property is so circum- stanced that the property cannot be partitioned without great preju- dice to the owners, and no evidence to that effect produced upon the application for judgment, actual partition must be directed ; but if it subsequently appears to the commissioners appointed to make the partition, or to a majority of them, that a partition of the property, or of a particular lot, tract, or other portion thereof cannot be made without great prejudice to the owners, they must report that fact to the court (Id., § 1551) ; and if the court is satisfied that the report is just and correct, it may thereupon modify the interlocutory judg- ment or render a supplemental interlocutory judgment, reciting the facts and directing that the property or the distinct parcel incapable of partition be sold by a referee designated in the judgment, or by the sheriff. (Id., § 1560.) This modification of the original judg. ment or supplementary judgment will be made or rendered upon the application to the court to confirm the report of the commis- sioners. But there are cases where no sale can be ordered, although the property is so circumstanced that it cannot be partitioned. The statute provides that " where two or more persons hold, as joint ten- ants or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for a partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold ; and if it appears, in any stage thereof, that partition cannot be made, without great prejudice to the owners, the complaint must be dis- missed. Such a dismissal does not affect the right of any party to bring a new action, after the determination of the particular estate." (Code of Civ. Pro., §1533.) Under this section of the Code the court has jurisdiction to enter- tain an action for the purpose of making actual partition, if that is practicable ; but when it appears that partition cannot be made with- out great prejudice to the owners, it has no jurisdiction except to pronounce judgment dismissing the complaint, so far as it relates to Action foe Paetition. 327 Actual partition or sale — Reference as to liens. that relief. In sucli case no sale of the property can be ordered. {Hughes v. Hughes, 30 Hun, 349 ; Scheu v. Lehning, 31 id. 183.) If commissioners are appointed to make partition in such action, and they report that partition cannot be made without great prejudice to the owners, no modified or supplemental judgment for sale can be ren- dered under section 1560 of the Code, as that power is not given to the court where it is " otherwise expressly prescribed " in the arti- cle relating to actions for partition. The statute also provides that " an action for the partition of real property shall not be brought by an infant, except by the written authority of the surrogate of the county in which the property, or a part thereof, is situated. The authority shall not be given, unless the surrogate is satisfied, by affidavit or other competent evidence, "that the interests of the infant will be promoted by bringing the ac- tion. A judgment for a partition or sale shall not be rendered in such an action, unless the court is satisfied that the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment." (Code of Civ. Pro., § 1534.) It is evident, from the language of the statute, that the question whether the property is so circumstanced that a partition cannot be made without great prejudice to the owners, may be determined by the verdict, report, or decision. If not so determined it may be de- termined upon affidavits, and if the facts are disputed and uncertain the court can undoubtedly order a reference to determine the ques- tion under section 1016 of the Code. Reference as to liens.— If the case is one in which an interlocu- tory judgment for sale is proper, the court, before rendering the judgment, must, either with or without application by a party, direct a reference to ascertain whether there is any creditor, not a party, who has a lien on the undivided shares or interest of any party. But the court may direct or dispense with such a reference in its discre- tion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated, and it appears therefrom, and by the affidavits, if eny, produced therewith, that there is no such outstanding lien. (Code of Civ. Pro., § 1561.) References of this character should not be ordered where it is reasonably certain that no such liens exist. The search may clearly show the non-existence of any lien on such undivided share or interest, and in that case no affidavits are neces- 328 Teial Peactioe. Interlocutory judgment. sary to avoid the reference. It may show an apparent lien upon such interest, and in that case the necessity for a reference may be obvi- ated by affidavits showing that the judgment or other matter supposed to create the lien has been in fact satisfied and discharged although it has not been satisfied of record. (For the proceedings on a reference to ascertain liens, see anie, p. 307.) Interlocutory judgment. — After the issues raised by the pro- ceedings have been tried, and the necessary preliminary inquiries and references, if any, have been disposed of, the next step in the action is to enter an interlocutory judgment. The Code has attempted to direct in general terms what the interlocutory judgment shall con- tain. A judgment for partition or sale in an action of partition brought by an infant must expressly recite that the court is satisfied that the interests of the infant will be promoted by such partition or sale. (Code of Civ. Pro.j § 1534.) It also provides generally that — " The interlocutory judgment must declare what is the right, share, or interest of each party in the property, as far as the same has been ascertained, and must determine the rights of the parties therein- Where it is found, by the verdict, report or decision, or where it appears to the court, upon an application for judgment in favor of the plaintiff, that the property, or any part thereof, is so circum- stanced that a partition thereof cannot be made without great preju- dice to the owners, the interlocutory judgment, except as otherwise expressly prescribed in this article, must direct that the property, or the part thereof which is so circumstanced, be sold at public auction. Otherwise, an interlocutory judgment in favor of the plaintiff must direct that partition be made between the parties, according to tlieir respective rights, sharesand interests." (Code of Civ. Pro., § 15i6.) " Where the right, share, and interest of a party has been ascer- tained and determined, and the rights, shares, or interests of the other parties, as between them8elves,remain unascertained or undetermined, an interlocutory judgment for a partition, rendered as prescribed in the last section, must direct a partition, as between the party whose share has been so determined and the other parties to the action. Where the rights, shares, and interests of two or more parties have been thus ascertained and determined, the interlocutory judgment may also direct the partition among them of a part of the property, proportionate to their aggregate shares. In either case, the court Action fob Partition. 329 Interlocutory judgment. may, from time to time, as the other rights, shares, and interests are ascertained and determined, render an interlocutory judgment, direct- ing the partition, in like manner, of the remainder of the property. "Where an interlocutory judgment is rendered, in a case specified in this section, the court may direct the action to be severed, and final judgment to be rendered, with respect to the portion of the property set apart to the parties, whose rights, shares, and interests are deter- mined, leaving the action to proceed as against the other parties, with respect to the remainder of the property ; and, if necessary, the court may direct that one of those parties be substituted as plaintiff." (Id., § 1547.) " Where two or more parties, to an action for partition, make it appear to the court, that they desire to enjoy their shares in common with each other, the interlocutory judgment may, in the discretion of the court, direct partition to be so made, as to set off to them their shares of the real property partitioned, without partition as between themselves, to be held by them in common." (Id., § 1548.) " Where the interlocutory judgment, in an action for partition, directs a partition, it must designate three reputable and disinterested freeholders, as commissioners, to make the partition so directed." (Id., § 1549.) " If the commissioners, or a majority of them, report that the prop- erty, or a particular lot, tract, or other portion thereof, is s\) cir- cumstanced that a partition thereof cannot be made without great prejudice to the owners thereof (See § 1551), the court, if it is satis- fied that the report is just and correct, may thereupon, except as otherwise expressly prescribed in this article, modify the interlocutory judgment, or render a supplemental interlocutory judgment, reciting the facts, and directing that the property, or the distinct parcel thereof so circumstanced, be sold by a referee, designated in the judgment, or by the sheriff." (Id., § 1560.) In any case, if a sale of the property is directed, and it appears by the pleadings, or by the evidence in the action, or by the report of a referee appointed by an order of the court to ascertain as to liens of creditors, that there was, at the date of the order, any existing lien upon the share or interest of a party in the property, the interlocu- tory judgment, directing the sale, must also direct the officer making it to pay into court the portion of the money arising from the sale of the share or interest of that party, after deducting the portion of the costs and expenses for which it is liable. (Id., § 1563.) 42 330 Trial Practice. Proceedings of commissioners appointed to make partition. " The court must, in the interlocutory judgment for a sale, direct the terms of credit which may be allowed for any portion of the purchase-money of which it thinks proper to direct the investment, and for any portion of the purchase-money which is required to be invested for the benefit of a person as prescribed in this article." (Id., § 1573.) Proceedings of commissioners appointed to make partition. — "Where the interlocutory judgment directs a partition, each of the commissioners thereby appointed must, before entering upon the execution of his duties, subscribe and take an oath before an officer specified in section 842 of this act, to the effect that he wiU faith- fully, honestly and impartially discharge the trust reposed in him. Each commissioner's oath must be filed with the clerk, before he enters upon the execution of his duties. The court may, at any time, remove either of the commissioners. If either of them dies, resigns, neglects or refuses to serve, or is removed, the court may, from time to time, by order, appoint another person in his place. (Code of Civ. Pro., § 1550.) The commissioners must forthwith proceed to make partition, as directed by the interlocutory judgment, unless it appears to them, or a majority of them, that partition thereof, or of a particular lot, tract or other portion thereof, cannot be made, without great preju- dice to the owners; in which case they must make a written report of that fact to the court. (Id., § 1551.) In making the partition the commissioners must divide the prop- erty into distinct parcels, and allot the several parcels thereof to the respective parties, quality and quantity being relatively considered, according to the respective rights and interests of the parties, as fixed by the interlocutory judgment. They must designate the several parcels by posts, stones or other permanent monuments. They may employ a surveyor, with the necessary assistants, to aid them in bo doing. (Id., § 1552.) Where a party has a right of dower in the property, or a part thereof, which has not been admeasured, or has an estate by the curtesy, for life, or for years, in an undivided share of the property, the commissioners may allot to that party his or her share of the property, without reference to the duration of the estate. And they may make partition of the share, so allotted to that party, among the parties who are entitled to the remainder or reversion thereof, to be Action fok Partition. 331 Confirmation of the report of the commissioners — ^ Final judgment, etc. enjoyed by tliem upon the determination of the particular estate, where, in the opinion of tlie commissioners, such a partition can be made without prejudice to the rights of the parties. (Id., § 1553.) All the commissioners must meet together in the performance of any of their duties ; but the acts of a majority so met are valid- They, or a majority of them, must make a full report of their pro- ceedings, under their hands, specifying therein the manner in which they have discharged their trust, describing the property divided, and the share, or interest in a share, allotted to each party, with the quantity, courses and distances, or other particular description of each share, and a description of the posts, stones or other monu- ments ; and specifying the items of their charges. The report must be acknowledged or proved, and certified iu like manner as a deed to be recorded, and must be filed in the ofiice of the clerk. (Id., § 1554.) The fees and expenses of the commissioners, including the ex- pense of a survey, where it is made, must be taxed under the direc- tion of the court, and the amount thereof must be paid by the plaintiff, and allowed as part of his costs. (Id., § 1555.) Confirmation of the report of the commissioners. — The report of the commissioners appointed to make partition must be either confirmed or set aside. (Code of Civ. Pro., § 1556.) An applica- tion for the confirmation of the report must be made at Special Term on the usual notice to all parties who have appeared, and may be combined with a motion for final judgment. If the report is set aside new commissioners may be appointed. Final judgment after partition. — The Code provides that, " Upon the confirmation, by the court, of the report of the commis- sioners making partition, final judgment, that the partition be firm and effectual forever, must be rendered, which is binding and con- clusive upon the following persons : " 1. The plaintiff; each defendant upon whom the summons was served, either personally, or without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act ; and the legal representatives of each party, specified in this subdivision. So much of section 445 of this act, as requires the court to allow a defendant to defend an action, after final judgment, does not apply to an action for partition. 332 Teial Peaotioe. Final judgment after partition. " 2. Each person claiming from, through or under such a party, by title accruing after the filing of the judgment-roll, or after the filing, in the proper county clerk's ofiice, of a notice of the pendency of the action, as prescribed in article ninth of this title. " 3. Each person, not in being when the interlocutory judgment is rendered, who, by the happening of any contingency, becomes afterward entitled to a beneficial interest attaching to, or an estate or interest in, a portion of the property, the person first entitled to which, or other virtual representative whereof, was a party specified in the first subdivision of this section. " But this section does not apply to a party, whose right and interest are expressly reserved and left unaffected, as prescribed in section 1539 of this act, or to a person claiming from, through or under such a party." (Code of Civ. Pro., § 1557.) " The final judgment must also direct that each of the parties, who is entitled to possession of a distinct parcel allotted to him, be let into the possession thereof, either immediately or after the deter- mination of the particular estate, as the case requires." (Id., § 1558.) " The final judgment for the partition of the property must also award that each defendant pay to the plaintiff his proportion of the plaintiff's costs, including the extra allowance. The sum to be paid by each must be fixed by the court, according to the respective rights of the parties, and specified in the judgment. If a defendant is un- known, his proportion of the costs must be fixed and specified in like manner. An execution against an unknown defendant may be issued to collect the costs awarded against him, as if he was named in the judgment; and his right, share or interest in the property may be sold by virtue thereof, as if he was named in the execution." (Id., § 1558.) " Where it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights or interests of some of them, the final judgment may award compensation to be made by one party to another for equal- ity of partition. But compensation cannot be so awarded against a party who is unknown, or whose name is unknown. Nor can it be awarded against an infant, unless it appears that he has personal prop- erty sufficient to pay it, and that his interests will be promoted thereby." (Id., § 1587.) Action foe Partition. 333 Proceedings where interlocutory judgment directs a sale — Final judgment, etc. Proceedings where the interlocutory judgment directs a sale. — Sales in partition may be made by the sheriff of the county where the property is situated, or by a referee appointed by the court for that purpose. (Code of Civ. Pro., §§ 1242, 1560.) The mode of conducting sales by referees is pointed out in another chapter. (See ante, pp. 310-314.) The proceedings on a sale by the sheriff are substantially the same as on a sale by a referee. Immediately after completing the sale, the officer making it must file with the clerk his report thereof under oath, containing a descrip- tion of each parcel sold, the name of the purchaser thereof, and the price at which it was sold. (Code of Civ. Pro., § 1676.) Final judgment confirming the sale and proceedings there- under. — After the report of the referee is filed, an application should be made to the court at Special Term, upon the usual notice to all parties who have appeared, for confirmation of the sale and final judgment. The Code provides that " If the sale is confirmed by the court, a final judgment must be entered, confirming it accord- ingly ; directing the officer making it to execute the proper convey- ances, and take the proper securities pursuant to the sale ; and also directing concerning the application of the proceeds of the sale." (Code of Civ. Pro., § 1577.) It also provides that " where final judgment, confirming a sale, is rendered, the costs of each party to the action, and the expenses of the sale, including the officer's fees, must be deducted from the pro- ceeds of the sale, and each party's costs must be paid to his attorney. But the court may, in its discretion, direct that the costs and expen- ses of any trial, reference, or other proceeding in the action, be paid out of the share of any party in the proceeds, or may render judg- ment against any party therefor. Where a proportion of the pro- ceeds is to be paid to, or invested for the benefit of, any person, as prescribed in any provision of this article, the amojmt thereof must be determined by the residue of the entire proceeds, remaining after deducting the costs and expenses chargeable against them." (Id. § 1579). " The proceeds of a sale, after deducting therefrom the costs and expenses chargeable against them, must be awarded to the parties whose rights and interests have been sold, in proportion thereto. The sum chargeable upon any share, to satisfy a lien thereon, must be paid to the creditor, or retained, subject to the order of the court ; and the remainder, except as otherwise prescribed in this 334 Tkial Peaotioe. Final j adginent confirming the Bale and proceedings thereunder. article, must be paid, by the officer making the sale, to the party owning the share, or his legal representatives, or into court for his use." (Id., § 1580. See, also, §§ 1563-1566.) "Where a party, entitled to receive a portion of the proceeds, is an infant, the court may, in its discretion, direct it to be paid to his general guardian, or to be invested in permanent securities, at in- terest, in the name and for the benefit of the infant." (Id., § 1581.) " Where a person has been made a defendant as an unknown person ; or where the name of a defendant is unknown ; or where the summons has been served upon a defendant without the State, or by publication, and he has not appeared in the action, the court must direct his portion to be invested in permanent securities, at in- terest, for his benefit, until claimed by him or his legal representa- tives." (Id., § 1582. See, also, § 1572.) If the interlocutory judgment directs the sale of an existing right of dower in the entire property (See Id., § 1567) the interest of the person entitled to the right of dower will pass by sale, and the purchaser, his heirs and assigns, will hold the property free and dis- charged from any claim by virtue of that right. (Id., § 1568.) " In that case the dowress is entitled to receive from the proceeds of the sale of the whole property a gross sum in satisfaction of her right of dower, or to have one-third of those proceeds paid into court for the purpose of being invested for her benefit, as prescribed in the next section with respect to the dowress of an undivided share." (Id.) " A party to an action for partition, who has a right of dower, or is a tenant for life, or for years, in or of an undivided share of the property sold, is entitled to receive, from the proceeds of the sale, a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of his or her estate or interest. The written consent of the party to receive such a gross sum, acknowl- edged or proved, and certified, in like manner as a deed to be re- corded, must be filed, at the time of, or before, the filing of the re- port of sale ; otherwise, the court must direct that, out of the pro- ceeds of the sale, which belong to the undivided share to wliich the estate or interest attaches, one-third, in case of a dowress, and in any other case arising under this section, the entire proceeds, or such a proportion thereof as fairly represents the interest of the holder of the particular estate, be paid into court, for the purpose of being invested for his or her benefit." (Id., § 1569.) Action foe Paktition. 335 Final judgment confirming the sale and proceedinga thereunder. " Where a portion of the proceeds, representing an undivided share or interest, is invested for the benefit of a tenant for life, or for years, or of a widow, as prescribed in the foregoing provisions of this article, the court must cause it to be invested in perma- nent securities, at interest, and the interest to be paid, from time to time as it accrues, to the person for whose benefit it is invested, while his or her right continues." (Id., § 1583.) " Where it appears that a party to the action has an inchoate right of dower, or any other future right or estate, vested or contingent, in any of the property sold, the court must fix the proportional value of the right or estate, according to the principles of law ap- plicable to annuities and survivorships, and must direct that propor- tion of the proceeds of the sale to be invested, secured, or paid over, in such a manner as it deems best calculated to protect the rights and interests of the parties." (Id., § 1570.) " A married woman may release to her husband her inchoate right of dower, in the property directed to be sold, by a written instru- ment, duly acknowledged by her and certified, as required by law with respect to the acknowledgment or a conveyance to bar her dower ; which must be filed with the clerk. Thereupon, the share of the proceeds of the sale, arising from her contingent interest, must be paid to her husband." (Id., § 1571.) " The court may, in its discretion, require any person, before he receives his portion of the proceeds of the sale, to give such security as it directs, to the people, or to such parties or other persons as it prescribes, to refund the same, or a portion thereof, with interest, if it thereafter appears that he was not entitled thereto." (Id., § 1584.) "A security taken under any provision of this article, except as otherwise specially prescribed therein, must be taken in the name and official title of the county treasurer of the county in which the property sold is situated. He, and his successors in office, must hold the same for the use and benefit of the persons interested, subject to the order of the court." (Id., § 1585.) The officer making the sale must, out of the proceeds, unless the judgment otherwise directs, pay all taxes, assessments and water rates which are liens upon the property sold, and redeem the prop- erty sold from any sales for unpaid taxes, assessments or water rates which have not apparently become absolute. The sums necessary to make these payments and redemptions are deemed " expenses of 336 Teial Practice. Action for dower. the sale," within the meaning of the term as used in the article re- lating to partition. (Id., § 1676.) The requisites of a conveyance by the officer making the sale has been considered elsewhere. SECTION III. Action foe Doweb. An action for dower must be tried by a jury unless a jury trial is waived, or a reference is directed. (Code of Civ. Pro., § 968.) The action must be tried in the county in which the subject of the action or some part thereof is situated. (Id., § 982.) Unless the plaintiff, before the commencement of the trial, files a consent to accept a gross sum in satisfaction of her right of dower, or to take a distinct parcel out of the property in lieu of such gross sum as prescribed by the statute, the practice upon the trial down to and including the verdict, report or decision will be substantially the same as in other actions. If such consent is not filed, and it appears by the verdict, report or decision that the plaintiff is entitled to dower in the real property described in the complaint an interlocutory judgment must be rendered directing that the plaintiffs dower in the property, par- ticularly describing it, be admeasured by a referee designated in the judgment, or by three reputable and disinterested freeholders desig- nated therein as commissioners for that purpose. (Id., § 1607.) The judgment should be entered, and a copy of the judgment with notice of its entry should be served upon the attorney for the adverse party for the purpose of limiting his time to appeal. (See Id., § 1351.) A copy of the judgment should also be furnished to the referee or commissioners as the commission or authority to act, and as a guide in the discharge of the trust. The referee or commissioners having first taken and filed the statu- tory oath (Id., § 1608), should proceed to execute their duties in the manner prescribed by the statute (Id., § 1609), and verify and file their report. (Id., § 1610.) All the commissioners must meet to- gether in the performance of any of their duties, but the acts of a majority so met are valid. (Id.) The proceedings by commissioners appointed to admeasure dower are the same as those of a referee appointed for the same purpose. The practice on such a reference is pointed out in another chapter. (See ante, p. 315.) The report of the referee or commissioners may be set aside by Action foe Dower, 337 Proceedings upon consent to receive a gross sum in satisfaction of dower. the court upon motion of either party upon good cause shown (Id., § 1611), or may be confirmed by the court and final judgment ren- dered. (Id. , § 1613.) Upon the report being confirmed by the court, final judgment must be rendered. If the referee or commissioners have admeasured and laid off to the plaintiff a distinct parcel of the property, the judgment must award to her during her natural life the possession of that parcel, describing it, subject to the payment of all taxes, assessments and other charges accruing thereupon after she takes possession. If the referee or the commissioners report that it is not practicable, or that in his or their opinion it is not for the best interests of all the parties concerned so to admeasure and lay off a distinct parcel of the property, the final judgment must direct that a sum fixed by the court and specified therein, equal to one-third of the rental value of the real property, as ascertained by a reference or otherwise, be paid to the plaintiff annually or oftener as directed in the judgment during her natural life for her dower in the property ; and that the sums so to be paid be and remain a charge upon the property during her natural life. The final judg- ment may also award damages for the withholding of dower. (Id. ) The fees and expenses of the commissioners or of the referee, including the expense of a survey when it is made, must be taxed under the direction of the court, and the amount thereof must be paid by the plaintiff and allowed to her upon the taxation of her costs. (Id., § 1612.) The judgment maybe enforced by execution. (Id., § 1240.) Proceedings upon consent to receive a gross sum in satis- faction of dower. — In an action for dower, the plaintiff may, at any time before an interlocutory judgment is rendered, by reason of the defendant's default in appearing or pleading, or where an issue of fact is jomed, at any time before the commencement of thd trial, file with the clerk, a consent'to accept a gross sum, in full satisfac- tion and discharge of her right of dower in the real property de- scribed in the complaint. Such a consent must be in writing, and acknowledged or proved, and certified, in like manner as a deed to be recorded. A copy thereof, with notice of the filing, must be served upon each adverse party who has appeared, or who appears after the fiUng. (Code of Civ. Pro., § 1617.) (For form of the consent, see Appendix.) At any time after a consent is filed, as prescribed in the section of 43 338 Trial Practice. Proceedings upon consent to receive a gross sum in satisfaction of dower. the Code last cited, and before an interlocutory judgment is ren- dered, any defendant may apply to the court, upon notice, for an order granting him leave to pay such a gross sum. (Id., § 1618.) The application must be made at Special Term, and should be based upon an affidavit stating the object of the action, the proceedings had therein, and the filing of the consent by the plaintiff. " There- upon the court may, in its discretion, and upon such terms as justice requires, ascertain the value of the plaintiff's right of dower in the property, by a reference or otherwise, and mate an order, directing payment, by the applicant, of the sum so ascertained, within a time fixed by the order, not exceeding sixty days after service of a copy thereof ; and directing the execution by the plaintiff of a release of her right of dower, upon receipt of the money. Obedience to the order may be enforced, either by punishment for contempt, or by striking out the pleading of the offending party, and rendering judgment against him or her, or in both modes." (Id.) If -a reference is ordered it will be brought to a hearing before the referee in the usual manner ; the parties may produce witnesses on the hearing to establish the value of the entire property to which the dower right attaches ; and after having ascertained a sum rep- resenting one-third of such value, the referee, taking such sum as principal, may proceed to estimate the value of the dower right ac- cording to the then value of an annuity of five per cent on such principal sum during the probable life of the plaintiff, according to the Portsmouth or Northampton tables. (See Gen. Rule 71.) It is not necessary to put the tables in evidence for the purpose of es- tablishing the probable duration of the plaintiff's life, as the referee may take judicial notice of them. {Davis v. Standish, 26 Hun, 608.) The order directing the reference will ordinarily direct that the motion and the further proceedings in the action stand over until the coming in of the referee's report, and when the report has been made and filed, the defendant should serve a copy upon the attorney for the plaintiff, with a notice that he will apply to the court thereon, at a day specified, for the relief demanded in the original motion. The hearing upon this notice will be but a con- tinuance of the original motion, the reference being merely for the information of the court ; and the court may then make the order for the payment, by the applicant, of the sum ascertained to be the value of the dower right, and directing the execution of the proper release by the plaintiff on receipt of the money. As the proceeding Action foe Dowee. 339 Proceedings upon consent to receive a gross sum in satisfaction of dower. terminates the action, the terms upon granting the order should be imposed with a view to the costs of the action and of the reference. Where the plaintiff's consent has been filed, as prescribed in sec- tion 1617 of the Code, "and she is entitled to an interlocutory judg- ment in the action, the court must, upon the application of either party, ascertain, by reference or otherwise, whether a distinct parcel of the property can be admeasured and laid off to the plaintiff, as tenant in dower, without material injury to the interests of the par- ties. If it appears to the court that a distinct parcel cannot be so .admeasured and laid off, the interlocutory judgment must, except in the case specified in the next section, direct that the property be sold by the sheriff, or by a referee designated therein ; and that, upon the confirmation of the sale, each party to the action, and every per- son deriving title from, through, or under a party, after the filing of the judgment-roll, or of a notice of the pendency of the action, as prescribed in article ninth of this title, be barred of and from any right, title, or interest in or to the property sold." (Code of Civ. Pro., § 1619.) " In a case specified in section 1617 of this act, where the property, or a part thereof, consists of one or more vacant or unimproved lots, the plaintiff's consent may contain a stipulation to take a distinct parcel, out of those lots, in lieu of a gross sum. In that case, the interlocu- tory judgment, instead of directing a sale, may direct, if it appears to be just so to do, that commissioners be appointed to admeasure and lay off to the plaintiff a distinct parcel, out of the vacant or un- improved lots ; and, if there is any other property, that it be sold, and a gross sum be paid to her out of the proceeds thereof, as pre- scribed in the next three sections. The plaintiff's title to each dis- tinct parcel, admeasured and laid off to her, as prescribed in this section, is that of an estate of inheritance in fee-simple. In ad- measuring and laying off the same, the commissioners must consider quantity and quality relatively, according to the value of the plaint- iff's right of dower in the vacant or unimproved lots, out of which the admeasurement is to be made ; which must be ascertained, in proportion to the value of those lots, as prescribed in the next three sections for fixing a gross sum to be paid to her out of the proceeds of a sale." (Id., § 1620.) Before an interlocutory judgment is rendered for the sale of the property the court must direct a reference to ascertain whether any person not a party has a lien upon the property or any part thereof, 34:0 Teial Pkactice. Proceedings upon consent to receive a gross sum in satisfaction of dower. (Id., § 1631.) The proceedings upon a reference of this nature are elsewhere noticed. (See ante, p. 302.) If a sale is ordered, and the right of dower of the plaintiff is inferior to any other lien upon the property, the judgment may, in the discretion of the court, direct that the property be sold, either subject to the lien or dis- charged of the lien, and, in the latter case, that the officer making the sale pay the amount of the lien out of the proceeds of the sale. (Id., § 1622.) The officer making the sale must execute a deed to the purchaser, and unless the judgment otherwise directs, must pay out of the pro- . ceeds of the sale all taxes, assessments and water rates which arc liens upon the property sold, and redeem such property from any sales for unpaid taxes, assessments or water rates which have not ap- parently become absolute. These payments and redemptions are deemed expenses of the sale. (See Id., § 1676.) Immediately after completing the sale and executing the proper conveyance to the purchaser, the officer making the sale must make and file with the clerk a report thereof, showing tlie name of the pur- chaser and the purchase-price paid by him, or, if the property was sold in parcels, the name of each purchaser, and the price and a description of the parcel sold to him ; the sums which the officer had paid out of the proceeds of the sale, pursuant to the interlocutory judgment ; the purpose for which each payment vras made ; the amount and items of his fees and expenses ; and the net amount of the proceeds, after deducting the payments. (Id., § 1623.) A copy of this report, with notice of filing, should be served upon the attorney for such defendant who had appeared. Application should then be made to the court at Special Term, upon the usual notice, for a confirmation of the sale. Upon confirming the sale, the court must ascertain, by a refer- ence or otherwise, the rights and interests of each of the parties in and to the proceeds of the sale, and also what gross sum of money is equal to the value of the plaintifE's dower in the net proceeds of the sale, calculated upon the principles applicable to life annuities. The court must thereupon render final judgment, confirming the sale, and directing that the gross sum so ascertained be paid to the plaint- iff in full satisfaction of her right of dower ; and that the remainder of the proceeds of the sale be distributed among the persons entitled thereto. (Id., § 1624.) The provisions of the Code relating to a sale in partition and to Action to Foeeclose A Mortgage. 341 Action to foreclose a mortgage. the distribution and care of the proceeds of such sale apply, as far as they are applicable, to a sale in an action of dower, and to the dis- tribution of the proceeds prescribed in the section last cited. (See Id., § 1625.) SECTION IV. Action to Fokeclose a Mortgage. An issue of fact in an action to foreclose a mortgage is not triable as of right by a jury, and must, therefore, be tried by the court un- less a reference or a jury trial is directed. (Code of Civ. Pro., §§ 668, 669.) The practice on the trial down to the entry of judgment is substantially the same as upon the trial of other actions by the court or a referee. If there is an answer interposed raising a material issue, the issue must be tried by the court or ref eri-ed. If the defend- ant fails to appear at the trial, an inquest must be taken by the court or the whole issue must be referred. In such case the default can- not be treated as equivalent to a failure to answer, or to a case in which a general answer is interposed by the guardian of an infant. {Exchange Fire Ins. Co. v. Early, 4 Abb. N. C. 78.) If some of the defendants put in issue by their answer the material allegations of the complaint, and others either make default or admit by their answer the right of the plaintiff as stated in the complaint, the plaint- iff should put the cause on the calendar, give the proper notice of trial and proceed to dispose of the issue raised by the pleadings. The plaintiff should then apply to the court for an order referring it to some suitable person as referee to compute the amount due to the plaintiff, and to 6uch of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels if the whole amount secured by the mortgage has not become due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of the reference must also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaint- iff or his agent on oath as to any payments which have been made, and to compute the amount due on the mortgage preparatory to the application for judgment of foreclosure and sale. After the refer- ence had been completed and the report filed, the plaintiff is then in position to apply for final judgment of sale if he has also filed his 342 Teial Pkactice. Action to foreclose a mortgage — Notice of pendency of action. notice of the pendency of the action as required by the statute. (See Gen. Eule 60 ; Cram v. Bradford, 4 Abb, 193 ; Bill v. McReynolds, 30 Barb. 488.) If the answer of any defendant presents what may be claimed to be a defense to the plaintiff's claim, or to any part of it, and no demurrer is interposed, and no motion made to strike out the defense as irrelevant or for judgment upon it as frivolous, the proper practice is to put the cause on the calendar for trial, and upon the trial obtain a ruling as to its sufficiency. As to such answer, the proceedings under Eule 60 are not applicable. (See Stuyvesant v. Browning, 1 Jones. & Sp. 203.) "Where the action to foreclose a mortgage is tried by the court, and all the rights of the parties have been adjusted and settled, the court, instead of making the necessary computations to ascertain the amoimt due to the plaintiff, may order a reference for that purpose, and may also direct the referee to ascertain the amount due upon any other mortgages set up in the answer, and also to ascertain and report whether there are any prior liens by mortgage upon the premi- ses, and if so, whether they are due. {Charriberlain v. Dempsey, 36 N. Y. 144.) Such references are ordered for the information and convenience of the court without regard to the question whether any party has made default, or whether any of the defendants are infants or absentees. The proceedings upon references to make computa- tions are disciissed elsewhere. (See ante, p. 318.) Upon the com- ing in of the report of the referee appointed for such purpose, and its confirmation, the court may make the usual judgment of foreclosure and sale. {Ohaniberlain v. Dempsey, 36 N. Y. 144.) Notice of pendency of action. — The plaintiff, at least twenty days before final judgment directing a sale is rendered in an action to fore- close a mortgage, must file in the clerk's office of each county where the mortgaged property is situated, a notice of the pendency of the action, stating the names of the parties, the object of the action, the date of the mortgage, the parties thereto, and the time and place of record- ing it, and containing also a brief description of the property in that county affected by the action. (Code of Civ. Pro., §§ 1631, 1670.) The complaint must be filed before or at the time of filing the notice. (Id. See Weeks v. Tomes, 16 Hun, 349.) In all foreclosure cases, the plaintiff, when he moves for judgment, must show by affidavit, or by the certificate of the clerk of the county in which the mort- gaged premises are situated, that a notice of the pendency of the Action to Foeeolose a Moetgage. 343 Dismissal of the complaint on payment — Application for judgment. action containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage, and the parties thereto, and the time and place of recording tlie same, has been filed at least twenty days before the application for judgment, and at or after the time of filing the complaint as required by law. (G-en. Rule 60.) Dismissal of the complaint on payment. — Where an action is brought to foreclose a mortgage upon real pioperty, upon which a portion of the principal or interest is due, and another portion of either is to become due, the complaint must be dismissed, without costs against the plaintiff, upon the defendant paying into court, at any time before a final judgment directing a sale is rendered, the sum due, and the plaintiff's costs. (Code of Civ. Pro., § 1634.) Payment to the referee before whom the action may be pending is not a pay- ment into court. {^Becker v. Boon, 61 N. Y. 317.) The Code pro- vides that, unless the court otherwise specially directs, money paid into court must be paid either directly, or by the officer who is re- quired by law first to receive it, to the county treasurer of the county where the action is triable. (Code of Civ. Pro., § 745.) In an action to foreclose a prior mortgage, a junior mortgagee, who is made a party, may tender to the plaintiff the amount due for principal, interest and costs, and demand an assignment of the mort- gage in suit ; and in case of the refusal of the plaintiff to make the assignment, may apply to the court upon notice to the plaintiff for an order compelling such assignment ; and the court upon granting the order may also, ia its discretion, direct the discontinuance of the action, without costs as against the plaintiff. {Twombly v. Cassidy, 82 ]Sr. r. 155.) Application for judgment. — When no answer is put in by the defendant, within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readiness for trial, as to all the defendants, may apply for judgment, at any Special Term, upon due notice to such of the de- fendants as have appeared in the action, and without putting the cause on the calendar. The plaintiff, in such case, when he moves for judgment, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees ; and if so, he must produce the 344 Teial Pkactice. Judgment. report of the referee, appointed to make computation and to take proof, as to the proof of the facts and circumstances stated in the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. And in all fore- closure cases, the plaintiff, when he moves for judgment, must show by affidavit, or by the certificate of the clerk of the county in which the mortgaged premises are situated, that notice of the pendency of the action containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage, and the parties thereto, and the time and place of recording the same has been filed at least twenty days before such application for judgment, and at or after the time of filing the complaint as required by law. (Gen. Eule 60.) A judgment by default cannot be taken against an infant defend- ant until twenty days have expired since the appointment of a guardian ad litem for him. (Code of Civ. Pro., § 1218.) But this does not apply where the guardian has put in a general answer. {Newins v. Baird, 19 Hun, 306.) Judgment. — In an action to foreclose a mortgage upon real property, if the plaintiff becomes entitled to final judgment it must direct the sale of the property mortgaged, or such part thereof as is sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the action. (Code of Civ. Pro., § 1626.) Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action ; and if he has appeared, or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mort- gaged property, and the application of the proceeds, pursuant to the directions contained therein. (Id., § 1627.) The expenses of the sale include all sums paid by the sheriff or referee making the sale for taxes, assessments and water rates which are liens upon the property sold, and all sums paid by him to redeem the property sold from any sales for unpaid taxes, assessments or water rates which have not apparently become absolute. (Id., § 1676.) " In every judgment for the sale of mortgaged premises the de- scription and particular boundaries of the property to be sold, so far at least as the same can be ascertained from the mortgage, shall bo Action to Foeeolose a Moetgage. 345 Judgment. inserted. And unless otherwise specially ordered by the court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of sale and the costs of the action, as provided by sections 1626 and 1676 of the Code, and which may be sold separately with- out material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may become a purchaser on such sale ; that the sheriff or referee execute a deed to the purchaser ; that out of the proceeds of the sale, unless otherwise directed, he pay the expenses of the sale as provided in section 1676 aforesaid, and that he pay to the plaintiff, or his attorney, the amount of his debt, in- terest and costs, or so much as the purchase-money will pay of the same, and that he take the receipt of the plaintiff, or his attorney, for the amount so paid, and file the same with his report of sale ; and that the purchaser at such sale be let into possession of the premises on production of the deed. All surplus moneys arising from the sale of mortgaged premises, under any judgment, shall be paid by the sheriff or referee making the sale within five days after the same shall be received and be ascertainable ; in the city of New York to the chamberlain of the said city, and in other counties to the treasurer thereof, unless other- wise specially directed, subject to the further order of the court ; and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court." (Gen. Rule 61. See Code of Civ. Pro., § 1633.) Where the mortgage debt is not all due, and the mortgaged prop- erty is so circumstanced that it can be sold in parcels without in- jury to the interests of the parties, the final judgment must direct that no more of the property be sold in the first place than is suffi- cient to satisfy the sum then due, with the costs of the action and expenses of the sale, and that upon a subsequent default in the pay- ment of principal or interest, the plaintiff may apply for an order directing the sale of the residue, or of so much thereof as is necessary to satisfy the amount then due with the costs of the application and the expenses of the sale. The plaintiff may apply for and obtain such an order as often as a default happens. (Code of Civ. Pro., § 1636.) If the mortgage debt is not all due, and it appears that the mort- gaged property is so circumstanced that a sale of the whole will be 44 346 Trial Peactice. Judgment. most beneficial to tlie parties, the final judgment must direct that the whole property be sold ; that the proceeds of the sale, after de- ducting the costs of the action and the expenses of the sale, be either applied to the satisfaction of the whole sum secured by the mort- gage, with such a rebate of interest as justice requires, or be first applied to the payment of the sum due, and the balance, or so much thereof as is necessary, be invested at interest for the benefit of the plaintiff", to be paid to him, from time to time, as any part of the prin- cipal or interest becomes due. (Id., § 163T. See De Forest v. Farley, 4 Ilun, 640.) In making the order for sale the court should take into consideration all the liens subsequent to the mortgage which will be cut off by the sale, and should make such an order with respect to the amount sold as will fully maintain the priority of the plaintiff, and at the same time will best protect the rights and preserve the equities of all parties. {Livingston v. Mildrum, 19 N. Y. 440.) If there are liens subsequent to the mortgage, the court has power to direct the sale of the entire premises for the protection of the equities of the subsequent lienors, although a sale of a portion only would satisfy the plaintiff's claim. (Id. ; De Forest v. Farley, 62 N. T. 628 ; Barnes v. StougJiton, 10 Hun, 14.) It is a general rule that where there are successive grantees or mortgagees of portions of the premises covered by the mortgage in suit, the land on foreclosure is to be sold in the inverse order of alienation where that course will secure the equitable rights of all the parties. But the rule is one of equity and yields to circum- stances. (See Bernhardt v. Lymhurner, 85 N. T. 172 ; Chuion v. Knaj>p, 6 Paige, 35 ; Kellogg v. Band, 11 id. 59 ; Clowes v. Dick- inson, 5 Johns. Ch. 235 ; Steeve v. Ghilds, 15 Hun, 511 ; Stuyve- sant V. Ball, 2 Barb. Ch. 151 ; Bowne v. Lynde, 91 N. T. 92 ; Hopkins v. Walley, 81 id. 77 ; Welling v. Ryerson, 94 id. 98.) A party desiring to have the mortgaged premises sold in a particular order should have a clause to that effect inserted in the decree ; or after its entry should move for an order directing the referee as to the order in which the premises are to be sold ; or he may after the sale move to set it aside in case the referee disregarded any proper request made to him on the sale. ( Vandercooh v. Cohoes Savings Institution, 5 Hun, 641) A prior mortgagee who has been made a party to an action to foreclose a junior mortgage may, in his answer, set up the prior mortgage and ask to have it paid in its order of priority before any Action to Foeeclose a Moetgage, 34'/ Stay of proceedings upon the judgment. of the proceeds of the sale are applied to the payment of the plaintiff's mortgage ; and the court may render a judgment in the action containing a provision to that effect. {Doctor v. Smith, 16 Hun, 245.) But tlie prior mortgagee is not obliged to take this course to protect his rights ; and it is improper to insert such a clause in the judgment where it may operate to the prejudice of other defendants who have had no opportunity of contesting the priority claimed. (See Payn v. Grant, 23 Hun, 134.) The junior mort- gagee has no power to compel the foreclosure of a prior mortgage in his action to foreclose the junior mortgage. {Adams v. MoPart- lin, 11 Abb. N. 0. 369.) Stay of proceedings upon the judgment, — Where an action is brought to foreclose a mortgage upon real property upon which a portion of the principal or interest is due, and another portion of either is to become due, and the defendant, after a final judgment directing a sale is rendered, but before the sale is made, pays into court the amount due for principal and interest and the costs of the action, together with the costs of the proceedings to sell, if any, all proceedings upon the judgment must be stayed ; but upon a subse- quent default in the payment of principal or interest, the court may make an order directing the enforcement of the judgment for the purpose of collecting the sum then due. (Code of Civ. Pro., § 1635.) The right to make such subsequent order will be expressly conferred by the judgment. (See a^ite, p. 345.) If the defendant wishes a stay in the execution of the final judg- ment he should make an application for leave to make the payment into court, and procure the order for a stay. {Long v. Lyons, 54 How. 129.) But if the plaintiff accepts from the hands of the defendant the payment of the principal and interest due and the costs and expenses, he will thereby waive the making of payment into court; (Id.) No order to stay a sale under a judgment for the foreclosure of a mortgage will be made or granted by a judge out of court except upon a notice of at least two days to the plaintiff's attorney. (Rule 67.) An order to show cause, if made by a judge out of court, and returnable in less than two days, will be irregular if it contains a stay of proceedings under a judgment in foreclosure. (Asinari v. Yol- Jcening, 3 Abb. N. 0. 454.) The application for the stay may be based upon a verified petition 348 Teial Feaoticb. Sale in foreclosure — Filing or recording mortgage and executing conveyance. setting forth the pendency of the action, the proceedings had therein, the readiness of the defendant to pay into court the principal and in- terest due, together with the costs and expenses, and praying for leave to pay such moneys into court, and for a stay of proceedings under the judgment. Upon the hearing an order may be made granting the prayer of the petition, and staying the proceedings under the judgment upon such payment being made until the further order of the court. Sale in foreclosure. — The sale of the mortgaged premises under the final judgment must take place in the county where such property is situated, and must be made by the sheriff of the county, or by a referee appointed by the court for that purpose, who must execute a conveyance to the purchaser. (Code of Civ. Pro., § 1242.) The amount of property to be sold will be determined by the provisions of the judgment. (See Id., §§ 1626, 1636, 1637.) The mode of con- ducting a sale by a referee is elsewhere noticed. (See ante, p. 312.) Filing or recording mortgage and executing conveyance. — Before any deed is executed to the purchaser at such sale it is the duty of the plaintiff to file the mortgage and any assignment thereof in the office of the clerk, unless such mortgage and assignments have been duly proved or acknowledged so as to entitle them to be recorded, ia which case, if it has not already been done, it is the duty of the plaintiff to cause the same to be recorded at full length in the county or counties where the lands so sold are situated before a deed is exe- cuted to the purchaser on the sale. The expenses of filing or record- ing the mortgage or assignment, and of the entry thereof, are allowed to the plaintiff on the taxation of costs. If the mortgage or assign- ment is filed with tlie clerk he must enter in the minutes a note of the fact and the time of filing. (Rule 63.) This rule does not ex- tend to any case where the mortgage or assignments appear by the pleadings or proof in the suit commenced thereon to have been lost or destroyed. (Id.) Where the property sold in the action is situated in a county other than that in which judgment is entered, the judgment must be also entered in the office of the clerk of the county wherein the property is situated before the purchaser can be required to pay the purchase- money or to accept a deed. The clerk of the latter county must enter it in the j ndgmont-book kept by him, upon filing with liim a Action to Foreclose a Mortgage. 349 Filing or recording mortgage, etc. — Disposition of the proceeds of tlie sale. notice thereof certified by the clerk with whom it is entered. (Code of Civ. Pro., § 1677.) If the judgment specifies the particular party or parties whose right, title or interest is directed to be sold, the conveyance executed by the ofiicer making the sale must distinctly state in the granting clause whose right, title or interest was sold and is conveyed, with- out naming iu that clause any of the other parties to the action ; otherwise the purchaser is not bound to accept the conveyance, and the oificer executing it is liable for the damages which the purchaser sustains by the omission, whether he accepts or refuses to accept it. (Id., § 1244:.) (For a form of the granting clause in a conveyance under this section, see Ramdall v. Yon Ellert, 4 Abb. N. C. 86.) If the sale is made by a referee he should ascertain from the judg- ment the time when the mortgage was recorded, and state in the deed that the interest sold and conveyed is the same as the mortgagor had in the land at that time. {Randall v. Yon Ellert, 12 Hun, 577 ; 4 Abb. K C. 86.) The conveyance vests in the purchaser the same estate only that would have vested in the mortgagee if the equity of redemption had been foreclosed. Such a conveyance is as valid as if it was executed by the mortgagor and mortgagee, and is an entire bar against each of them, and against each party to the action who was duly sum- moned, and every person claiming from, through or under a party by title accruing after the due filing of the notice of the pendency of the action. (Code of Civ. Pro., § 1632.) The " entire bar " spoken of in the section last cited refers to the rights and interests in the equity of redemption, and does not relate to interests which are paramount to the title of both mortgagor and mortgagee. {Emigram,t Industrial Savings Bank v. Goldman, 75 N. Y. 127 ; Lewis v. Smith, 9 id. 502. See, also, Merchants' Bank V. Thomson, 55 id. 7; Rathhone v. Mooney, 58 id. 463; Rector, etc., V. Mack, 93 id. 488 ; Smith v. RdberU, 91 id. 470.) Disposition of the proceeds of the sale. — The ofiicer making the sale should retain out of the proceeds a sufiicient sum to pay his fees and commissions (See Code of Civ. Pro., § 3297 ; id., § 3307) and the expenses of the sale, including the sum paid for taxes, assess- ments and water rates, or to redeem the property from sales made therefor (Id., § 1676), and should then pay to the plaintiff or his attorney the amount of his debt, interest and costs, if there is sufii- 350 Teial Pbactioe. Report of sale — Confirmation of the report. cient money remaining in his hands for that purpose, and if there is any surpkis of the proceeds of sale after paying the expenses of sale, and satisfying the mortgage debt and the costs of the action, the officer must pay such surplus into court for the use of the person or persons entitled thereto. (Id., § 1633.) " All surplus moneys arising from the sale of mortgaged premises under any judgment shall be paid by the sheriff or referee making the sale within five days after the same shall be received and be ascertainable in the city of New York to the chamberlain of the said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court ; and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court. No report of sale shall be filed or confirmed unless accompanied with a proper voucher for the surplus moneys showing that they have been paid over, deposited or disposed of in pursuance of the judgment." (Rule 61.) The proceedings on the part of a party to the action, or of a per- son having a lien on the mortgaged premises at the time of the sale, to reach the surplus moneys so paid into court, are regulated by the general rules of practice. (See Rule 64.) Report of sale. — • A report of sale should be drawn up by the sheriff or referee as soon as practicable after making the proper dis- position of the proceeds of the property sold as directed by the judgment. This report should contain a history of the proceedings of the officer in making the sale, including the disposition of the proceeds, and should be accompanied by the proper receipts and vouchers for any and all payments and disbursements made. The report and vouchers should be filed with the clerk. (For form of report, see Appendix.) If the judgment directs the officer making the sale to report any deficiency, and the proceeds of the sale are not sufficient to satisfy the mortgage debt, interest, costs, and expenses of sale, the report should state that fact and specify the amount of the deficiency. Confirmation of tlie report. — It is not necessary for the plaint- iff to give notice to any party of the filing the report of sale, nor is it necessary for him to obtain an order confirming the report, or to enter any judgment thereon, preliminary to the issuing of an exe- cution to collect the amount of any deficiency specified in the report. Action to Foeeclosb a Mortgage. 351 Confirmation of the report. and provided for in the judgment directing the sale. The judgment directing the sale, and the payment of any deficiency reported by the sheriff or referee, is final, and no further intervention of the court is necessary. {Moore v. Shaw, 16 Hun, 428 ; Springsteene v. Gillett, 30 id. 260.) At most, the failure to obtain an order for the confirmation of the report before proceeding by execution to collect the deficiency reported is a mere irregularity, cured by sub- division 12 of section Y21 of the Code of Civil Procedure, unless the adverse party has been prejudiced. (Id. See Barnard\. Onderdonk, 11 Abb. N. C. 349.) But it may be that for the purpose of giving a deed to the purchaser and perfecting the title between mortgagee and purchaser, a confirmation of the report is proper or necessary. (See Moore v. Shaw, 1 5 Hun, 428.) It will certainly be safe prac- tice to give notice of the filing of the report, and after waiting eight days for the defendant to file exceptions thereto, to move the court at Special Term, upon the usual notice, for an order confirm- ing the report. (For form of the order of confirmation, see Appen- dix.) CHAPTER VIII. COSTS. SECTION I. In Genbeal. The right to costs is purely statutory. {Downing v. Marshall, 37 K. T. 380.) The common law gave no right to costs in actions at law {Clark v. Dewey, 5 Johns. 251 ; Supervisors of Onondaga v. Briggs, 3 Denio, 173 ; Waterman v. Yan Benschotten, 13 Johns. 426), and, therefore, no costs can be recovered in such actions except as expressly authorized by statute. At an early day the English Court of Chancery was given power to allow damages (which were construed to include costs) to either party to a suit and in any amount, according to the discretion of the court, and the jurisdiction of that court touching costs seems to have origi- nated in that statute (See Downing v. Ma/rshall, 37 N. Y. 380), and, as raodiiied by subsequent statutes, to have been regarded as the common law of this State, for it was held that in Chancery the costs did not depend upon any statute of this State, but rested in a sound discretion to be exercised under a consideration of all the circum- stances of the case. {Easthurn v. KirTt, 2 Johns. Ch. 317.) And in actions by a husband against his wife for divorce, etc., the courts of this State have declared their right, independent of any statutory authority, upon a final decision in favor of the wife to award to her a sum in excess of taxable costs for expenses and counsel fees. {Grif- fin V. Griffin, 47 IS". T. 134.) This right is placed upon the general equitable jurisdiction of the court, aud also upon the ground that when our statutes conferred jurisdiction upon the Court of Chancery in those actions for divorce which by the English law are solely cog- nizable in the ecclesiastical courts, the grant of that jurisdiction car- ried with it by implication the incidental powers which were indis- pensable to its proper exercise, and not in conflict with our own stat- utory regulations on the same subjects ; and this, although the ecclesiastical law never became the common law of this State. (Id. See Brinkley v. Brinhley, 50 N. T. 184.) And the court has inherent power, independent of any statutory Costs to the Plaintiff as of CotJRSE. 353 Costs in general — Costs to the plaintiff as of course. authority, to award to a guardian ad Idtem, to be paid out of the subject-matter of the action, such a compensation as appears to be reasonable for the services he has in fact performed. {Weed v. Faine, 31 Hun, 10.) The English statutes on the subject of costs were substantially re-enacted in this State, and, as modified, incorporated into the Revised Statutes and continued to be the law until the adoption of the Code of Procedure in 1848. Section 303 of that Code pro- vided that " all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law restricting or controlling the rights of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed ; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity, for his expenses in the action, which allowances are in this act termed costs." On the 1st day of September, 1880, the provisions of the Code of Civil Procedure as to costs and fees (Chap. 21), took effect, and the Code of Procedure was repealed. (Laws of 1880, chap. 245, § 1, subd. 4.) But the repeal of the Code of Procedure did not revive any law repealed by it. (Id., § 10, subd. 10.) While the Code of Civil Procedure does not, in terms, define costs, the general scheme is the same as that of the old Code, and sums in lieu of attorney's fees, fees of ofiicers and necessary disbursements are included in the term " costs." (Code of Civ. Pro., § 3256.) Title 1 of chapter 21, relating to awarding and enforcing payment of costs, does not, however, afford the only rule. That title does not affect any provision contained elsewhere in that act or in any other statute remaining unrepealed after chapter 21 took effect, whereby the award of costs is specially regulated in a particular case otherwise than as prescribed in title 1 of that chapter. (Id., § 3250.) SECTION II. Costs to the Plaintiff as of Couese. The Code provides in substance that the plaintiff is entitled to costs of course upon the rendering of a final judgment in his favor in either of the following actions : 45 354 - Teial Peacttce. Costs to the plaintiff as of course. 1. In an action, triable by a jury, to recover real property or an interest in real property ; or in which a claim to real property arises upon the pleadings, or is certified to have come in question upon the trial. 2. In an action to recover a chattel. 3. In an action where the people of the State are a party, except- ing an action brought to recover one or more fines or penalties not exceeding $200 ; or in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution ; an action against the surviving husband or wife of a decedent, the next of kin of an intestate, or the next of kin or legatees of a testator, to recover to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator ; an action against the heirs of an intestate, or the heirs or devisees of a testator, to enforce against them the liabihty created by statute for the debts of the decedent, to the extent of the estate, interest in the right in the real property which descended to them from or was effectually devised to them by the decedent ; an action brought by a child, born after the making of a will, or by a subscribing witness to a will, against the legatees or devisees, to recover his share of the property ; an action brought by the executor or administrator of a decedent to recover damages imder the statute for a wrongful act, neglect or default, by which the decedent's death was caused ; an action brought by the people of the State to recover public money, funds, credits, or other property illegally obtained, received, converted, or disposed of, or to recover damages or other compensation for so obtaining, receiving, paying, converting or disposing of the same ; an action involving a matter of account exceeding the jurisdiction of a justice of the peace ; an action brought against an executor or administrator, as such. 4. An action, other than one of those above specified, in which the complaint demands judgment for a sum of money only, and in which the plaintiff recovers the sum of $50 or more. (Code of Civ. Pro., § 3228.) 6. Any other action, wherein the plaintiff is given a right to costs of coarse upon the recovery of a final judgment in his favor, by any other provision of the Code of Civil Procedure, or by any statute remaining unrepealed after chapter 21 of that act went into effect. (Id., § 3250.) Costs to the Plaintiff as of Couesb. 355 Pre-requisites to plaintiff's right to costs, etc. — ■ By what statute determined. The right to costs of course is given to the plaintiff on the recovery of final judgment in his favor in an action to recover a chattel, or to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution ; but the amount of costs in such actions may depend upon the amount of the recovery, as will be noticed hereafter. Pre-requisites to plaintiff's right to costs of conrse. — The plaintift's right to costs of course under section 3238 of the Code of Civil Procedure depends upon the rendition of final judgment in his favor, and not upon the result of a contest over some of the questions in controversy. A plaintifE cannot be awarded costs upon the dis- missal of a counter-claim interposed in the action, and have such costs offset against the costs that follow a dismissal of his complaint. (Thayer v. Hollwnd, 63 How. 179.) If after the commencement of an action the defendant pays and the plaintiff accepts the amount of his demand, and the defendant alleges such payment as a defense, there can be no judgment for the plaintiff, and consequently no right to costs. {Keeler v. Yan Wie, 49 How. 97. And see liioe v. Gkilds, 28 Hun, 303 ; Bendii v. Annesh/, 27 How. 185 ; 42 Barb. 192.) But it would be otherwise if the defendant failed to present his defense to the court at the trial, and judgment was regularly recov- ered against him. (See Boga/rdus v. Hichtmeyer, 3 Abb. 179 ; Mof- fatt V. Henderson, 16 Jones & Sp. 449.) If the plaintiff brings himself within the provisions of the Code giving him costs of course, costs follow as a matter of right, whether they are directed by the court or referee or not. {Burha/ns v. Tib- hits, 7 How. 74.) If the statute gives him costs, he is entitled to them as of course ; if not, no order of the conrt can extend to him that right. (Id.) A provision in an order of the court purporting to limit the costs to a less sum than is allowed by statute is a nullity {Gray v. Hannah, 3 Abb. [N". S.] 183) ; and a greater amount of costs than is allowed by law cannot be taxed by stipulation. {0'' Keefev. Shepherd, 23 Hun, 171.) If a judgment is rendered for the plaint- iff pursuant to a stipulation, for an amount therein specified, the fact that the stipulation is silent as to costs will not deprive the plaintiff of his right thereto, provided he is otherwise entitled to costs. ( Wing V. Wew York S JSrie £. R. Co., 1 Hilt. 235.) By what statute determined. — There can be no vested right to costs pendente lite that will prohibit the legislature from chang- 356 Trial Practice. In real actions. ing the law as to costs to the prejudice of the plaintiff. The legis- lature may take away all costs, or increase or diminish the same during the pendency of the action, or remove or create conditions upon which tlie right to costs depends. Costs in the end will be granted or refused in accordance with the law in force at the time when the party has the right to costs. {Garling v. Ladd, 27 Hun, 112 ; Supervisors of Onondaga v. Briggs, 3 Denio, 173 ; Ackley V. Tarlox, 19 Abb. 119. See Rich v. Husson, 1 Duer, 617.) In real actions. — The plaintiff is entitled to costs, of course, upon the rendering of iinal judgment in his favor in an action tria- ble by a jury to recover real property or an interest in real property, or in which a claim of title to real property arises upon the plead- ings, or is certified to';have come in question upon the trial. (Code of Civ. Pro., § 3228, subd. 1.) It will be noticed that this subdivision applies only to actions tria- ble by a jury, and does not furnish a rule in actions in equity. In the latter class of real actions the awarding of costs stands on the same footing now as before the Code. (See Law v. McDonald, 9 Hun, 23. See, also, Pratt v. Stiles, 17 How. 211 ; Phelps v. Wood, 46 id. 1 ; Church v. Kidd, 3 Hun, 254.) By a recovery in an action in which a claim of title arises on the pleadings is meant that such claim shall arise on the entire plead- ings, and that the recovery shall be in hostility to such claim. {JBur- hans V. Tihhitts, 7 How. 74.) The plaintiff cannot entitle himself to costs by unnecessarily framing his complaint in such manner as to require the defendant to set up a plea of title together with a denial. If he does so frame his complaint, and the defendant pleads title and succeeds upon that issue, the plaintiff is not entitled to costs under this subdivision although he succeeds in the action, if his recovery is based upon a cause of action upon which no question of title could arise, and to which a mere denial would be a sufficient answer. {Learn v. Currier, 15 Hun, 184 ; Eathhone v. McQon- nell, 20 Barb. 311, 315.) Proof as to the ownership of real estate other than the locus in quo, offered to excuse or explain alleged false representations, does not bring in question the title to lands within the meaning of the provision as to costs. {Burnet v. Ilelly, 10 How. 406, 414.) So if the pleadings do not put in issue the right to possession, but only the fact of possession, the title to real property is not in question. Costs to the Plaintiff as of Couese. 357 In real actions. (Id. ; Ehle v. Quaokenhoss, 6 Hill, 537 ; Townsend v. Bissell, 5 N. Y. Sup. Ct. [T. & C] 583 ; 3 Hun, 556 ; Squires v. Seward, 16 How. 478 ; Muller v. Bayard, 15 Abb. 449.) But an issue as to the right of possession involves a question as to a claim of title to real property. {Powers v. Gonroy, 47 How. 84. See Warren V. Buckley, 2 Abb. N. C. 323.) If proof of actual possession on the part of the plaintiff is sufficient to entitle him to maintain the action, no claim of title is presented. {Rathhone v. McConnell, 21 N. Y. 466.) If the defendant admits the plaintiff's title to the premises de- scribed in the complaint, but denies that the premises so described include the locus in quo, the issue is one of location depending upon accuracy of measurement, and involves only a question of posses- sion. {Heintz v. Bellinger, 28 How. 39.) The fact that the action is to recover damages for a trespass upon lands is not sufficient of itself to entitle the plaintiff to costs upon a recovery. (Keiny v. Ingraham, 66 Barb. 250, 254 ; Brady v. Smith, 1 City Ct. E. 175 ; Turner v. Van Ripper, 43 How. 33.) But where in such an action the complaint alleges title and posses- sion in the plaintiff, and the answer puts these allegations in issue, and the plaintiff claims damages for injuries to the freehold as well as for the entry, it is necessary for the plaintiff to prove his title to enable him to recover for the injury to the freehold, and the ques- tion of title arises upon the pleadings. {Kelly v. Manhattan Beach Ry. Co., 81 N. Y. 233.) A claim of title to real property does not arise upon the pleadings by reason of an allegation of license in the answer. {Mechl v. Schwiecha/rt, 67 Barb. 599 ; Muller v. Bayard, 15 Abb. 449 ; Cra- ven V. Price, 53 Barb. 442 ; 37 How. 15 ; Turner v. Van Ripper, 43 id. 33. See O'Reilly v. Davies, 4 Sandf. 722.) And an allegation that a diversion of water was " with the leave, license, permission and consent of the plaintiff, first made, given and granted," does not bring up a question of title, the words importing merely a parol license. {Rathhone v. McConnell, 21 N. Y. 466.) If the validity of a license from persons other than the plaintiff were questioned' at the trial, and there tried, an issue of title, or the right to give such license, might arise and present a case where a claim of title came in question upon the trial. But that would be a case for a certificate to that effect. {Mechl v. SchwiecTcart, 67 Barb. 599, 601.) But it has been held that where an answer in an action for trespass on 358 Teial Peactice. In real actious. lands sets up a license, given by a mere occupant of the premises, and the reply puts in issue both the giving of the license and the riglit to give it, no claim of title to real property is made in the pleadings or comes in question at the trial ; and, if the plaintiff re- covers only nominal damages, the defendant is entitled to costs. {Launitz v. JBarnum, 4 Sandf. 637.) The revocation of a license may be alleged and proved without bringing the title to real prop- erty in question. {Doolittle v. Eddy, 1 Barb. 74.) But an issue may be raised on the existence of a license to do the act set forth as the cause of action in trespass without affecting the right to costs grow- ing out of an allegation raising a question of title. {Powell \. Must, 8 Barb. 567.) Thus, if in an action for trespass, alleged to have been committed by the entry of the defendant upon the plaiutifE's lands, and the plowing up and taking away of trees and shrubs growing thereon, the defendant claims a property in the trees and shrubs and a right to enter and take them away by virtue of a writ- ten, sealed agreement, executed by the parties, and the plaintiff puts this right in issue by the reply, a claim of title to real property arises upon the pleadings, and the rights of the parties in respect to the costs will not be affected by the fact that the defendant also claimed in his answer that the entry was by the plaintiff's consent. (Id.) Whatever grows upon and is annexed to the freehold is real es- tate, and the question of the right of property in trees and shrubs growing upon lands is a question of title. {Powell v. Pust, 8 Barb. 567.) An easement is an interest in lands, and a claim that an ease- ment exists is a claim of title to real property. {Alleman v. Pey, 49 Barb. 641. See Green v. Village of Oanandaigua, 30 Hun, 306.) A claim of title arises upon the pleadings in the action for waste where the complaint alleges a forfeiture and prays for the recovery of possession {Snyder v. Beyer, 3 E. D. Smith, 235), and in an ac- tion for a breach of a covenant of quiet enjoyment in a lease where the complaint alleges, and the answer denies, an eviction of the plaintiff by the true owner under title paramount {Pe Graff v. Hoyt, 4 N. Y. Sup. Ct. [T. & C] 348); and it has been held, in at least one case, that the question of title arises upon the pleadings in an action by a judgment creditor to set aside as fraudulent a convey- ance of land by the debtor ( Van Wyoh v. Baker, 11 Hun, 309), though the value of this case as an authority upon the right to costs Costs to the Plaintiff as of Couese. 359 lu real actions. is greatly weakened by subsequent decisions. (See Woodford v. BucUin, 14 Hun, 444 ; Black v. O'Brien, 23 id. 82.) The plaintiff is entitled to costs of course in any action in which a claim of title to real property arises upon the rendition of final judgment in his favor. Thus, in an action for assault, if the plaint- iff recover less than $50, the amount of his costs cannot ordinarily exceed the amount of damages recovered ; but if a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial, he is entitled to full costs upon recovering any amount whatever. {Lillis v. 0' Gorvner, 49 How. 497 ; 8 Hun, 280.) But the right to full costs upon a recovery of less than $50 does not follow as of course merely because the ownership of the lands upon which the assau.lt occurred is claimed by one party in his pleadings and is denied by the other, where the allegations respect- ing the place of the assault ai-e mere matters of description, and not facts upon which the right of either party depends, and the violence of neither party was exerted to obtain or defend possession or title. (Langdon v. Guy, 91 N. T. 660.) Where the plaintiff seeks to prove possession of real property by oral testimony, and the defendant objects on the ground that the plaintiff's right to possession is in issue, and thereupon the plaintiff proves title, though unnecessarily, the defendant cannot be afterward heard to say that the question of title did not properly arise upon trial {Foster v. Romer, 15 Week. Dig. 487) ; and where a plaintiff is compelled to prepare to prove his title by reason of an issue thereon raised by the answer he is entitled to costs upon recovering final judgment, although the defendant admit his title on the trial. {Niles V. Lvndsley, 1 Duer, 610; 8 How. 131. See RatKbone v. McConnell, <21 JS". T. 466, 471.) Where a claim of title to real property does not arise upon the pleadings the plaintiff is not entitled to costs of course upon the ground that it came in question upon the trial, unless he obtain a certificate to that effect ; and a proper case for such certificate does not arise unless the claim necessarily came in question. {Burnet v. Kelly, 10 How. 406.) A referee's certificate that title came in ques- tion upon the trial is of no avail where the question arose upon an issue decided in favor of the defendant, and did not come in ques- tion upon an issue decided in favor of the plaintiff. {Squires v. Seward, 16 How. 478.) But such a certificate is conclusive upon the taxing officer (Code of Civ. Pro., § 3248), and if improperly 360 Tkial Practice. In an action to recover a chattel — Where the people are a party. granted must be set aside on motion for that purpose. {Barney v. Keith, 6 Wend. 555. See Lillis v. 0' Conner, 8 Hun, 280, 282.) Tlie eases in which costs in real actions are discretionary will be noticed hereafter. In an action to recover a chattel. — In an action of replevin the plaintiff is entitled to costs of course upon recovering the property. If he recover no damages and the value of the property as fixed by the verdict, report or decision, is less than $50, the costs cannot ex- ceed the value as fixed. If he recover the property and the amount of the value as fixed and the damages is less than $50, the costs can- not exceed such amount. (Code of Civ. Pro., § 3228, subd. 2. See Von ScJwning v. MitcheU, 23 How. 44, 164 ; 14 Abb. 185.) When the verdict, report or decision awards onlya portion of the property to the plaintiff, and the residue to the defendant, the complaint must, if necessary, be amended, to conform thereto. In such a case each party recovers costs against the other. But if each party recover damages the smaller sum must be deducted from the greater and the balance only awarded, and therefore, in determining whether or not a recovery is for less than $50, the party recovering the smaller sum as damages must be regarded as recovering no damages, and the party recovering the greater sum as recovering the difference between the smaller and the greater sums. (Code of Civ. Pro., §§ 1728, 3234 ; Porter v. WiUett, 14 Abb. 319.) Before the present Code took effect the defendant was not entitled to costs if any portion of the property was awarded to the plaintiff. ( Vowles v. Mv/rray, 50 How. 159.) In an action where the people are a party. — In an action where the people of the State are a party the plaintiff is entitled to costs of course upon the rendering of a final judgment in his favor, except in an action for one or more fines or penalties not exceeding $200. (Code of Civ. Pro., §§ 3228, subd. 3, 2863, subd. 1.) In such an action if the plaintiff recover $50 or more, he is entitled to costs of course under subdivision 5 of section 3228, for if the fines or penalties claimed do not exceed $200, the action is not one of those specified in subdivision 3, being expressly excepted therefrom. Costs in an action against the usurper of an oflBce or franchise fol- low as of course under this section. (Code of Civ. Pro., § 1956 ; People V. CluU, 52 N. Y. 576.) In an action by the people, under section 1969 of the Code, to Costs to the Plaintiff as of Couese. 361 In an action for personal wrongs — Actions against next of kin, etc. recover public funds illegally obtained, converted, etc., costs follow as of course. Section 3228, subdivision 3, provides that the plaint- iff shall be entitled to costs of course upon the rendering of a final judgment in his favor in an action specified in subdivision 3 of section 2863, and the latter subdivision, as amended in 1882, includes actions under section 1969. He is thus entitled to costs under either subdi- vision 1 or subdivision 3 of section 2863. (As to awarding costs in such actions, see post^ § 7.) In an action for personal wrongs. — In an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, the plaint- iff is entitled to costs of course upon the rendering of a final judg- ment in his favor. But if he recover less than $50 damages the amount of his costs cannot exceed the damages. (Code of Civ. Pro., §§ 2863, subd. 3, 3228, subd. 3.) When the complaint sets forth a cause of action besides that for the personal injury, e. g., causes of an action for an assault and bat- tery, for an injury to real property and for the conversion of per- sonal property, arising out of the same transaction, and upon the trial, evidence is given upon all the causes of action and a general verdict for the plaintiff for less than $50 is rendered, the plaintiff is not entitled to costs. {Chapin v. Cole, 38 How. 481.) But in an action for an assault and battery, where the complaint alleges that the defendant wrongfully entered the plaintiff's grounds and house and there committed the acts complained of, and the answer, besides a general denial, avers that a third person was the owner of the house ; but no injury to the freehold is alleged in the complaint, and no damages are claimed for entering upon the prem- ises ; and the injury for which indemnity is sought was to the person ; and the defense set up is that the acts complained of were committed in defense of certain persons who, being first assaulted by the plaint- iff, requested the assistance of the defendant as their servant ; nothing more appears upon the face of the papers than a simple assault and battery and a justification, and the plaintiff, upon recovering less than $50, is entitled to no more costs than damages, in the absence of a certificate that the title to land came in question upon the trial. {Langdon v. Guy, 91 K Y. 660.) In actions against next of kin, legatees, deyisees, etc. — In an 46 362 Trial Peaotice. In action for causing death by negligence — Actions wliere amount exceeds $400. action under section 1837 of the Code of Civil Procedure, against next of kin, legatees, etc., to recover for a debt of a decedent, to the extent of the assets paid or distributed to them ; in an action under section 1843, against the heirs of an intestate, or the heirs and devi- sees of a testator, to recover for a debt of a decedent arising by simple contract or by specialty, to the extent of the estate, interest and right in the real property which descended to them from or was efl'ectually devised to them by the decedent ; and in an action under section 1868, by a child born after the making of a will, or by a sub- scribing witness to a will, against legatees or devisees to recover his share of the property, the plaintiff is entitled to costs of course upon the rendering of a final judgment in his favor. (Code of Civ. Pro., §§ 2863, subd. 3, 3228, subd. 3.) In action for causing death by negligence. — In an action under section 1902 of the Code of Civil Procedure, by an executor or administrator of a decedent who has left him or her surviving a husband, wife, or next of kin, to recover damages for a wrongful act, neglect or default, by which tlie decedent's death was caused, the plaintiff is entitled to costs of course upon the rendering of a ffnal judgment in his favor. (Code of Civ. Pro., §§ 2863, subd. 3, 3228, subd. 3.) In actions where the amount involTed exceeds $400. — The Code of Civil Procedure, by language inaptly chosen, attempts to provide that a plaintiff is entitled to costs of course upon the recov- ery of final judgment in an action involving a matter of account where the sum total of the accounts of both parties exceed $400. (See Code of Civ. Pro., § 3228, subd. 3 ; id., § 2863, subd. 4.) Section 3228 of the Code provides that a plaintiff is entitled to costs of course upon the rendering of final judgment in his favor in an ac- tion specified in subdivision 4 of section 2863 of that act ; and the sub- division referred to provides that a justice of the peace cannot take cognizance of a civil action " where, in a matter of accoiint, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400." When an action is brought in a justice's court, and the defendant procures its discontinuance upon the ground that the sum total of the accounts of both parties exceeds $400, he cannot afterward be heard to say that the justice had jurisdiction of such action when Costs to thk Plaintiff as of Couebe. 363 In actions wliere tlie amount involved exceeds $400. the plaintiff makes claim to costs in an action subsequently brought for the same cause of action in a court of record. {Bradner v. Howard, 75 N. Y. 417; Glaolnn v. Zeller, 52 Barb. 147; Kirh v. BlashfieU, 6 IST. Y. Sup. Ct. [T. & C] 509 ; Bailey y. Stone, 41 How. 346.) The plaintiff is entitled to treat the adjudication of the justice as final and bring his action in a court of record, and, if final judgment therein is rendered in his favor, he is entitled to costs of course. (Id.) But a plaintiff is not required to commence an action in a justice's court and to prove his accounts to an amount exceeding $400, in- cluding those proved by the defendant, and to be dismissed from that court in consequence, as a necessary preliminary to the com- mencement of the action in a court of record. {Stilwell v. Staples, 5 Duer, 691 ; Olackin v. Zeller, 52 Barb. 147 ; Lund v. Broad- head, 41 How. 146.) It is enough to entitle him to costs that the facts of his case, as proved in a court of record, establish it to be one where the accounts of both parties exceed $400. (Id.) Where an action on contract, and for the recovery of money only is origi- nally brought in a court of record, and the plaintiff recovers less than $50, because of a counter-claim interposed and established by the defendant, the plaintiff is entitled to costs of course, provided the total amount of his claim and tlie defendant's counter-claim exceed $400. {Boston Mills v. Eull, 6 Abb. [N. S.] 319 ; 37 How. 299 ; 1 Sweeny, 359 ; Oriffin v. Brown, 53 Barb. 428 ; 35 How. 372.) And where, in an action on a note, given on the settlement of ac- counts between the parties, a defense is interposed that a mistake of fact was made in the settlement, and upon the trial all the accounts between the parties, exceeding $400, are examined, and the error in the settlement corrected, the plaintiff is entitled to costs of course, although he recovers less than $50. {Gilliland v. Campbell, 18 How. 177.) But payments made on the plaintiff's claim constitute no part of an account, and cannot be included in the computation by which the amount of the parties' accounts is being ascertained. {Grim v. Gronkhite, 15 How. 250. See Lund y. Broadhead, 41 id. 140; Brady v. Durhrow, 3 E. D. Smith, 78.) It is the balance unpaid, after an application of payments, which determines whether the ac- tion was within the jurisdiction of a justice's court. {BurdicTc v. Hale, 13 Abb. JST. C. 60 ; Steele v. McDonald, 4 Civ. Fro. R. 227.) And if the plaintiff sues upon a promissory note, claiming only a balance 364 Teial Practice. In actions against executors, etc. — In other actions involving money judgment. due, it is the amount demanded, and not the amount of the note, which constitutes the account on his part. {Iloodless v. Brundage, 8 How. 263.) If the plaintifE alleges in his complaint that there is due him from the defendant on account a sum exceeding $400, and admits that the defendant has a counter-claim thereto, which leaves the amonnt due the plaintiff less than $50, and the answer admits these allegations, the plaintifE is entitled, upon the pleadings, to re. cover the difference between his and the defendant's accounts, and such recovery entitles him to costs of course. {Lund v. JBroadh^ad, 41 How. 146.) If a valid counter-claim is interposed by answer, which will reduce the plaintiff's recovery below $60, and the amount of the accounts of the parties is less than $400, the plaintiff should save himself the costs accruing after answer by an offer of judgment. (See Code of Civ. Pro., § 739.) In actions against executors, etc. — In an action against an executor or administrator, as such, the plaintiff is entitled to costs, of course, upon the rendering of final judgment in his favor. (Code of Civ. Pro., § 3228, subd. 3 ; § 2863, subd. 5.) This rule is sub- ject, however, to the exceptions and limitations contained in sections 1835 and 1836 of the Code of Civil Procedure regulating the award- ing of costs against executors or administrators, sued in their repre- sentative capacity, on the recovery against them of a judgment for a sum of money only. These are special provisions not affected by general provisions as to costs. (Id., §3250.) It has been held that where an executor refuses to refer a claim as provided by section 1836 of the Code, and a recovery is had by the claimant, costs follow as a matter of course {Rooney v. Lennon, 13 Week. Digl 101) ; but that in an action in equity the costs are in the discretion of the court. {Riper v. Poppenhausen, 43 N. Y. 68. And see Staiger v. Schultz, 3 Keyes, 614 ; Garr v. Bright, 1 Barb. Ch. 157.) The rules as to awarding costs in actions against executors and administrators will be given on another page. (See post.) In other actions in which a money judgment only is de- manded. — The Code, after providing for costs of course to the plaintiff in certain real actions, triable by jury, in an action to recover a chattel, and in actions of which a justice of the peace has no juris- diction, further provides that the plaintifif is entitled to costs of Costs to the Plaintiff as of Cotjkse. 365 Actiona involving money judgment — Against two or more defendants. course upon the rendering of a final judgment in liis favor in " an action other than one of those specified in the foregoing subdivisions of this section in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs under this subdivision, unless he recovers the sum of $50 or more." (Code of Civ. Pro., § 3228, subd. 4.) It does not matter whether the action be legal or equitable, the sole condition being that the judgment demanded must be for money only. {Murtha v. Curley, 92 N. Y. 359, 361 ; 65 How. 86 ; 3 Civ. Pro. E. 266.) The right to costs is made to depend upon the amount of money recovered, and not upon the nature or character of the subject of the action, and the plaintiff is deemed to recover what he obtains by due course of law. Thus, if the jury assess the damages at a sum less than $50, and, the case being a proper one, the court trebles the amount, making the damages $50 or more, the latter sum is the plaintiff's recovery. {Keiny v. Irigrahain, 66 Barb. 250.) But if the plaintiff recover less than $50 he is not entitled to costs, although his recovery was reduced to a sum less than $50 by a payment made to and accepted by him without reservation or con- dition as to costs after suit brought. {Rice v. Childs, 28 Hun, 303.) Cqsts awarded to the plaintiff to abide the event, such as costs on vacating a judgment on an inquest, cannot be allowed to him if he recover less than $50. {New v. Anthony, 4 Hun, 52 ; 6 N. Y. Sup. Ct. [T. & C] 243. See, also, Snyder v. Collins, 12 Hun, 383.) Against two or more defendants. — As a general rule the plaint- iff can recover but one bill of costs although there are more than one defendant, and they appear by different attorneys. {Buell V. Q, 4 Johns. 183) ; a motion to set aside a verdict for irregular conduct of the jury (Smith v. Cheetham, 2 Cai. 381) ; a motion for judgment on the pleadings, on the ground that no issue of fact is raised {People v. Northern R. H. Co., 42 N. Y. 217) ; a motion to bring on a certiorari for a hearing {People V. Nichols, 58 How. 200) ; and a motion for a peremptory mandamus on the coming in of the return to an alternative man- damus {People V. Commissioners, 6 Wend. 559), have been held to be non-enumerated motions. SECTION III. Notice of Motion. When notice required and to whom given. — All questions for argument, and all motions, must be brought before the court on a notice or by an order to show cause. (Rule 37.) There are, however, certain orders which may be granted ex parte. Among these are certain orders for provisional remedies (See Code of Civ. Pro., §§ 609, 556, 558, 638) ; orders for a substitution of attorneys ; orders for an enlargement of time or for a stay of proceedings and orders of a simi- lar nature ; and where an order other than for a provisional remedy has been granted ex parte, it may be vacated or modified without notice by the judge who made it. (Code of Civ. Pro., § 772.) As a general rule a party who has appeared in the action should be given notice of every application to the court when he has any interest to appear and oppose it. {Isna/rd v. Caseaux, 1 Paige, 39 ; Hewitt V. Howell, 8 How. 346 ; Ostrander v. Harper, 14 id. 16 ; Pice V. EheU, 55 N. T. 518. See Code of Civ. Pro., § 799.) But a defendant who has appeared and failed to answer is not entitled to notice of an application for a provisional remedy unless notice is specifically required by statute. {Becker v. Hotchkiss, 8 How. 68.) If a defendant has not appeared, service of a notice or other paper in the ordinary proceedings need not be made upon him unless he is actually confined in jail for want of bail. (Code of Civ. Pro., § 799.) This rule concludes the defendant as to all proceedings m the action which he had reason to anticipate. But the subrogation of one plaintiff for another, and particularly of an original defendant, has no identity with the action as instituted and made known to the de- fendant, and he will not be afiected by such an order unless he had 65 514 Teial Peactice. Length of notice. an opportunity to be heard. {MoLeom v. Tompkins, 18 Abb. 24. And see Code of Civ. Pro., § 1422.) There are certain orders which the court may make of its own motion, no notice of an application therefor having been given. Examples of these are an order directing a reference in a referable case (Code of Civ. Pro., § 1013) ; an order in an equity case sending issues of fact to a jury (Id., § 971); and the like. Ordinarily service of the notice upon the adverse party is sufficient, but on a motion by one of several defendants to change the place of trial notice must be given to the other defendants. {Mairs v. Hemsen, 3 Code R., 138.) Where two or more persons are entitled to move to set aside a judgment, and one of them moves separately, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse parties (Code of Civ. Pro., § 1286), and where the application is to compel the sheriff to do an act he is entitled to notice {DioTcerson v. Spaulding, 7 Hun, 288) ; and third persons with whom a receiver has made a contract, under the sanction of the court, are entitled to notice of a motion to modify the contract and the instructions of the receiver in respect to it. {Mooney v. British Commerdal Life Ins. Co., 9 Abb. [N. S.] 103.) Lengtli of notice. — Where special provision is not otherwise made by law or by the general rules of practice, if notice of a mo- tion is necessary, it must, if personally served, be served at least eight days before the time appointed for the hearing, unless an order to show cause is obtained. (Code of Civ. Pro., § 780 ; Rule 40.) If service is made by mail the notice must be served sixteen days be- fore the time appointed for the hearing. (Id., § 79S.) The above rule applies to nearly all motions, there being but few cases where special provision as to the length of notice is made. But a special provision as to length of notice must be strictly complied with, the provisions for an order to show cause and for double time, where service is made by mail, having no application. (Code of Civ. Pro., § 802 ; Beat v. Union Paper Box Co., 4 Civ. Pro. R. 18.) Where, in partition, a party, whose share in the proceeds of the sale has been paid into court, on the ground that there was an existing lien on his share of the property, applies for an order directing that the money, or such part thereof as he claims, be paid to him, service of the notice within the State must be personal, or by leaving it at the owner's residence with some person of siritable age and discretion, at Notice of Motion. 515 Form and contents of notice. least fourteen days pvevious to the application. Service without the State, if personal, must be made at least twenty days previous to the application. (Code of Civ. Pro., § 156i.) An application for judgment upon a pleading, as frivolous, may be made upon a previous notice to the adverse party of not less than five days. (Id., § 537.) Motions to strike out of any pleading matter alleged to be irrele- vant, redundant or scandalous, and motions to correct a pleading on the ground of its being " so indefinite or uncertain that the pre- cise meaning or application is not apparent," must be noticed be- fore demurring or answering the pleading, and within twenty days from the service thereof. (Rule 22.) Form and contents of notice. — The notice should specify the place where the motion will be made, but if that be notorious its omission is not fatal. {Bodwell v. Willcox, 2 Cai . 104.) It must specify a certain time ; it cannot be in the alternative in that respect. {Crane v. Crofut, 1 How. 191.) But a party, upon being served with a notice of motion, may serve his adversary with a counter- notice that if such motion is granted, he will then move the court for the relief specified in the counter-notice. {Glarh v. Clark, 11 Abb. N. C. 333. And see Fowler v. Hurler, 1 Rob. 52.) The notice should be entitled in the action, and the grounds upon which the motion is made should distinctly appear, either from the notice or the moving papers. {Ellis v. Jones, 6 How. 296.) If there are several grounds upon which the motion may be made, that upon which the moving party intends to rely must be specified in the notice. {Bowmam, v. Sheldon, 6 Sandf . 657 . ) Where the motion is for irregularity the notice must specify the irregularity com- plained of. (Rule 37 ; Lewis v. Oraham, 16 Abb. 126 ; Bishop v. Erapi/re Trams. Co., 5 Jones & Sp. 12; Barker v. Cooh, 40 Barb. 254 ; 25 How. 190 ; 16 Abb. 83 ; Perkins v. Mead, 22 How. 476 ; Selover Y.Forhes, id. 477 ; Lalor v. Fisher, 2 Rob. 669.) And it is not sufficient to state the irregularity in the moving affidavits only. {Montrait v. Rutchvns, 49 How. 105.) The moving party is deemed to have waived any irregularities not specified. {Mayor of N. T. V. Lyons, 24 How. 280.) But there are certain cases where the rule as to specifying irregu- larities does not apply {^ee Kellogg v. LLowell, 62 How. 280) ; and the issuing of an execution in violation of a stay of proceedings {Jack- 516 Tkial Peaotioe. Service of notice. son V. Smith, 16 Abb. 201 ; 25 How. 476) ; the entry of a judgment by confession upon an insufficient statement ( Winneirenner v. £!d' gerton, 8 Abb. 419 ; 30 Barb. 185 ; 28 How. 476) ; or the entry of Judgment against a minor {Peck v. Coler, 20 Hun, 534), are substan- tial grievances, and not irregularities, within the meaning of the rule. Notice of a motion to set aside a judgment on the ground that it was improperly entered refers sufficiently to the objection that the judgment was entered without authority. (Hicks v. Br&nnam, 10 Abb. 304 ; Marquat v. Mulvy, 9 How. 460. See Lewis v. Graham, 16 Abb. 126.) In addition to the specific relief asked for the notice may ask for " such other or further relief as may be proper," and in pursuance of such a request the court may grant any relief justified by the mov- ing papers. {Boington v. Lapham, 14 How. 360 ; Ma/rtin v. Kwn- ouse, 2 Abb. 390 ; Walkenshaw v. Ferzel, 32 How. 310 ; 7 Kob. 606; Boylen v. McAvoy, 29 How. 278.) The notice should be signed by the attorney of record ; but a notice signed by the counsel has been held sufficient where the attor- ney was not to be found. {Bogert v. Bancroft, 3 Cai. 127 ; Col. & Cai. Cases. 466.) The original motion papers should be addressed to all the attorneys for adverse parties. [Anderson v. Vandenlmrgh, 1 How. 212.) (For form of notice, see Appendix.) Service of notice. — "Where a party has appeared the notice must be served upon his attorney. (Code of Civ. Pro., § 799.) When an attorney is retained merely to confess judgment notice of a motion to vacate satisfaction must be served upon him and not upon the party ( Wardell v. Eden, 2 Johns. Gas. 121) ; and notice of a motion to set aside a judgment by default and for leave to come in and defend may be served upon the attorneys for the plaintifis although they have settled with their client and have dissolved their partnership. {Miller v. Miller, 37 How. 1. See Brury v. Bussell^ 27 id. 130.) Service may be made by delivery to the attorney personally (Code of Civ. Pro., § 796) ; or through the post-office by depositing the notice, properly inclosed in a post-paid wrapper, in the post-office of the party or attorney serving it, directed to the person to be served, at ,the address, within the State, designated by him for that purpose, upon the preceding papers in the action ; or, where he has not made Notice of Motion. 517 Service of notice — Proof of service. such a designation , at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same ; or, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof ; or, if there is no person in charge of his office, and the service is made between six o'clock in the morn- ing and nine o'clock in the evening, either by leaving it in a conspic- uous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter-box ; or, if the office is not open, so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the State, with a person of suitable age and discretion. (Id., § 797.) Service upon a party may be either personally or by mail, as above, or by leaving the paper at his residence, within the State, between six o'clock in the morning and nine o'clock in the evening, with a per- son of suitable age and discretion. (Id.) "Where a party to an action, who has appeared in person, resides without the State, or his residence cannot, with reasonable diligence, be ascertained, and he has not designated an address, within the State, upon the preceding papers, service of a paper upon him may be made, by serving it on the clerk. (Id., § 800. ) A sheriff or jailer, upon whom a paper in an action or special proceeding, directed to a prisoner in his custody, is lawfully served, or to whom such a paper is delivered for a prisoner, must, within two days thereafter, deliver the same to the prisoner, with a note thereon of the time of the service thereof upon, or the receipt thereof by him. For a neglect or violation of this section, the sheriff or jailer, guilty thereof, is liable to the prisoner for all damages occa^ sioned thereby. Subject to reasonable regulations, which the sheriff may establish for that purpose, a sheriff, jailer, or other officer, who has the custody of a prisoner, must permit such access to him as is necessary, for the personal service of a paper in an action or special proceeding, to which the prisoner is a party, and which must be personally served. (Id., §§ 131, 132.) In a case where the mode of service is specially prescribed by law such provisions must be strictly complied with. (See Id., § 802.) Proof of service. — An order cannot be taken upon a default in appearing without due proof of the service of the notice. (See Rale 37.) This is done by obtaining an admission of due service of 518 Teial Peactice. Countermand of notice — Order to show cause. the notice, indorsed upon a copy thereof and signed by the attorney served, or by an affidavit of service made by the person who made the service. Countermand of notice.— A notice of motion cannot be with- drawn without payment of the costs of the motion. ( Walkenshaw V. Ferzel, 32 How. 310 ; Y Rob. 606 ; Bates v. James, 1 Duer, 668. See Crockett v. Smith, 14 Abb. 62.) But when a motion was origin- ally noticed for leave to add parties defendant and for an injunction and receiver, it was held that the motions were distinct and that the first part of the motion might be withdrawn and the second part left pending without payment of costs. ( Walkenshaw v. Perzel, 32 How. 810 ; T Eob. 606.) SECTION rv. Oedek to Show Cause. While eight days' notice of a motion must ordinarily be given, yet the court, or a judge thereof, may, in certain cases, make an order to show cause why the relief sought should not be granted, and in the order direct that a service less than eight days before such order is returnable be sufficient. (Code of Civ. Pro., § 780.) But an order to show cause will not be granted unless a special and sufficient reason for requiring a short notice is stated in the papers presented, and the party states in his affidavit the present condition of the action, and, if not yet tried, the time appointed for holding the next trial term or Circuit when the action is triable. (Rule 37. See Androvette v. Bowne, 4 Abb. 440 ; 15 How. 75.) An order to show cause cannot be granted except where a notice of eight days cannot be given, and every such order must fix a day for showing cause less than eight days after the same is made. Unless this provision is complied with the order is a nullity and may be treated as such. (Rule 37.) The order must, except in the first judicial district, be returnable only before the judge who grants it, or at a Special Term appointed to be held in the district in which the action is triable (Id.) ; and if it is returnable at Special Term it must be for the first day of the term. {Power V. Village of Athens, 19 Hun, 165.) When the motion is for irregularities the order must specify the irregularity complained of. (Rule 37. People v. Kenny, 2 Hun, 346 ; 4 N. Y. Sup. Ct. [T. & C] 572.) Subject to the above rule that an order cannot be Motion Papers. 519 Affidavits . granted when full notice can be given, the length of time is discre- tionary. (Id.) The order is in the discretion of the jury or Special Term and may be set aside in the discretion of the General Term. {Sioah Avenue R. R. Go. v. Gillert Elevated R. R. Co., 71 If. T. 430.) The order may be granted in case of an enumerated as well as a n on- enumerated motion. [People t. Nichols, 58 How. 200.) An order to show cause is equivalent to a notice of motion and merely shortens the notice prescribed by law. {Parmenter v. Roth, 9 Abb. [N. S.] 385.) It is not. to be regarded as an indication of any opinion by the court upon the merits of the application. {Thompson t. Erie R. R. Co., 9 Abb. [N". 8.] 233. See ante. tj. 33, Stat of Pkooeedings.) SECTION Y. Motion Papees. Affidavits. — Where the grounds upon which a motion is based do not appear from the papers in the action affidavits are used to set forth the facts upon which relief is sought. An affidavit is usually entitled in the cause, but this is not necessary. The want of a title or a defect in the title does not impair it, if it intelligibly refer to the action or special proceeding in which it is made. (Code of Civ. Pro., § 728.) The title includes the name of the court. {Bowman V. Sheldon, 5 Sandf. 657.) The venue is, however, an essential part of an affidavit ; an affidavit without a venue is a nullity. (Gooh v. Siaats, 18 Barb. 407 ; Lane v. Morse, 6 How. 394 ; Thompson v. Burhans, 61 N". T. 52 ; People v. De Gamp, 12 Hun, 378.) Statements before the words " being duly sworn " ai'e mere re- citals, and will not be deemed sworn to. [Staples v. Fairchild, 3 N. Y. 41 ; Payne v. Young, 8 id. 158 ; Ex parte Bank of Monroe, 7 Hill, 177; People v. Johnson, 1 IST. Y. Sup. Ct. [T. & C] 578.) When the affidavit, to be effectual, mast be made by one having a certain character or personal capacity wherein he acted, oris to act, in doing the'matters averred therein, the paper ought to state that the deponent has that character or capacity. {Ex parte Bank of Monroe, 7 Hill, 177 ; Ex parte Shumway, 4 Den. 258 ; Staples v. Fairchild, 3 N. Y. 41; People v. Sutherland, 81 id. 1.) An aifidavit should contain a full and concise statement of the facts relied on. Mere conclusions of the affiant are not sufficient. (See Ohaine v. Wilson, 8 Abb. 78, 107 ; Depew v. Leal, 2 id. 131, 520 Teial Peaotice. Affidavits. 136 ; Stewa/rt v. Brown, 16 Barb. 367 ; Dreyfus v. Otis, 54 How. 405 ; Smith v. Davis, 29 Hun, 306 ; 3 Civ. Fro. E. T4.) The affidavit should be made by a person having personal knowl- edge of the facts, if his affidavit can be procured ; and when so made the facts should be stated positively. ( Whitloch v. Hoth, 10 Barb. T8 ; 5 How. 143.) But if, from the circumstances of the case, the facts cannot be stated on positive knowledge, they may be stated on information and belief, giving the names of the persons from whom and the sources from which the information was derived, and the reasons why the affidavits of those having positive knowledge can- not be procured. {Bennett v. Edwards, 27 Hun, 352 ; City Bank V. Lumley, 28 How. 397; Dreyfus v. Otis, 54 id. 405 ; Gramdall v. Bryan, 15 id. 48 ; 5 Abb. 162 ; Blason v. Bruno, 21 How. 112 ; 33 Barb. 520 ; 12 Abb. 265 ; De Weerth v. Feldner, 16 id. 295 ; 25 How. 419 ; Cooh v. Roach, 21 id. 152 ; Sotow v. Risenherger, 25 id. 164; Dolz V. Atlantic, etc.. Trans. Co., 3 Civ. Pro. E. 162; Crib- hen V. Schillinger, 30 Hun, 248.) An affidavit on information and belief omitting the sources of in- formation, and failing to state why the person having positive knowl- edge does not depose, is insufficient. {Steuben County Bank v. Alberger, 78 IST. T. 252 ; Yates v. J^orth, 44 id. 271, 274; Dew^ V. Greene, 4 Denio, 93 ; Tollman v. Bigelow, 10 Wend. 420.) But if the facts are stated positively by the deponent, he need not give the source of his knowledge or his means of information. {Pierson V. Freeman, 77 K. Y. 589.) Every affidavit exceeding two folios in length must be distinctly numbered and marked at each folio in the margin thereof, and all copies, either for the parties or the court, must be numbered or marked in the margin so as to conform to the original draft or entry, and to each other, and must be indorsed with the title of the cause. (Eule 19.) Every affidavit should show iipon its face that it was taken within the "jurisdiction of the officer who certifies it. {Thomp- son V. Burhans, 61 N. T. 52.) It has been held that an affidavit is sufficient though not signed by the deponent, if his name appear in the body of it, and it be duly sworn to. {Haff v. Spicer, 3 Cai. 190 ; Jackson v . Virgil, 3 Johns. 540 ; Millius v. Shafer, 3 Den. 60; Soule v. Chase, 1 Abb. [N. S.] 48 ; 1 Eob. 222. But see Hathaway v. Scott, 11 Paige, 173.) The omission of the name of the deponent from the body of the instru- ment is not, as a general rule, a fatal defect where the deponent duly Motion Papkes. 521 Affidavits. subscribes and swears to the same. {People v. Sutherland, 81 K Y. 1.) The signature of the officer before whom the affidavit is taken, without the addition of his title of office, is prima facie sufficient {Hunter v. Le Conte, 6 Cow. 728 ; People v. Pensselaer Common Pleas, 6 Wend. 543), and an affidavit is good although the officer omits to state that the defendant appeared before him. {Jackson v. Oumaer, 2 Cow. 552.) An omission of the jurat from the copy affidavit served is not good ground for objection where the party served has an opportu- nity to inspect the original. ( Union Furnace Co. v. SJiepherd, 2 Hill, 413 ; Livingston v. Chetham, 2 Johns. 479 ; BaTcer v. CooTc, 16 Abb. 83; 40 Barb. 254; 25 How. 190; Banlc of Havana v. Moore, 5 Hun, 624.) An oath or affidavit required or authorized by law, except an oath to a juror or a witness upon a trial, an oath of office, and an oath, required by law to be taken before a particular officer, may be taken before a judge, clerk, deputy clerk, or special deputy clerk, of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act ; and when certified by the officer to have been taken before him, may be used in 2^\j court, or before any officer or other person. (Code of Civ. Pro., § 842.) Where an officer, person, board, or committee has been hereto- fore, or is hereafter authorized by law to take or hear testimony, or to hear or receive an affidavit, or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer an oath for that puqaose. "Where an officer, person, board, or com- mittee, to whom or to which application is made to do an act in an official capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. (Id., § 843.) An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken with- out the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State, and when certified by him to have been taken before him, 66 522 TeIal Peactioe. Affidavits. and accompanied with the like certificates as to his ofiicial character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used as if taken and certified in this State by an officer authorized by law to take and certify the same. (Id., § 844.) The word " affidavit " includes a verified pleading in an action. (Code of Civ. Pro., § 3343, subd. 11.) Upon the hearing of a contested application for an injunction or- der or to vacate or modify such an order, a verified answer has the effect only of an affidavit. (Id., § 630.) When an affidavit of merits is indispensable, and has once been filed and served, no other is necessary ; but on making a motion such service and filing must be shown by affidavit. (Rule 23.) No order extending a defendant's time to answer or demur shall be granted, unless the party applying for such order shall present to the justice or judge to whom the application shall be made, an affi- davit of merits, or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action, that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defense, upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And the affidavit shall state whether any and what extension or extensions of time to answer or demur have been granted, by stipu- lation or order, and where any extension has been had, the date of issue shall be twenty days after the service of the complaint. (Rule 24.) Whenever application is made ex parte ^ on affidavit to a judge or court for an order, the affidavit shall state whether any previous ap- plication has been made for such order, and, if made, to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown. And for the omission to comply with this rule, any order made on such application may be revoked or set aside. (Rule 25.) In addition to what has usually been stated in affidavits on motion to change the place of trial, either party may state the natu.re of the controversy, and show how his witnesses are material ; and may also show where the cause of action or the defense, or both of them, arose ; and those facts will be taken into consideration by the court, in fixing the place of trial. (Rule 48.) Motion Papees. 523 Deposition to be used on motion — • Service of motion papers, etc. Deposition to Ibe used on motion. — Where a party intends to make or oppose a motion in a court of record other than the mayor's court of the city of Hudson, the recorder's court of the city of Utica, the recorder's court of the citj' of Oswego, or the justices' court of the city of Albany, and it is necessary for him to have the affidavit or deposition of a person, not a party, to use upon the motion, the court, or a judge authorized to make an order in the cause, may, in its or his discretion, make an order appointing a referee to take the deposition of that person. The order must be founded upon proof, by affidavit, that the applicant intends to make the motion, or that notice of a motion has been given, which the applicant intends to oppose. The affidavit must specify the nature of the motion, and must show that the affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the facts which the applicant verily believes are within his knowledge. The order may be made upon or without notice. The person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a differ- ent disposition thereof. (Code of Civ. Pro., § 885. See Williams V, Westirn Union Tel. Co., 3 Civ, Pro. E. 448.) Service of motion papers. — The notice of motion or the order to show cause must be accompanied by copies of the affidavits and papers upon which the motion is to be made (Rule 21), excepting such papers as have already been served upon the adverse party. Where a motion is to be heard upon the pleadings, and they have already been served, new copies need not be served. {Newbury v. Newbury, 6 How. 182.) Papers served upon the adverse party by mail and actually in his possession at the time due personal notice of a motion is given may be read upon the motion, although they were not mailed sixteen days before the time appointed for the hearing. ( Van Berdhuysen v. Albany Northern R. R. Co., 14 How. 70.) It is not necessary to serve counter-affidavits upon the moving party, either in case of an enumerated or a non-enumerated motion. {Strong v. Platner, 5 Cow. 21.) On enumerated motions. — " The papers to be furnished on such motions shall be a copy of the pleadings, wlien the question arises on the pleadings, or any part thereof, or of such parts only as relate to 524 Teial Peactice. At wliat court or term a motion may be heard. the question raised by the demurrer ; a copy of the special verdict, return or other papers on which the question arises. And the party whose duty it is to furnish the papers shall serve a copy on the oppo- site party, except upon trial of issues at law, at least eight days be- fore the time for which the matter may be noticed for argument . If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days' notice of motion, that the cause be struck from the calen- dar (whichever party may have noticed it for argument), and that judgment be rendered in his favor. The papers shall be furnished by the plaintiff, when the question arises on special verdict, and by the party demurring or appealing in cases of demurrer, and in all other cases by the party making the motion. Each party shall prefix to his points a concise statement of the facts of the case, with reference to the folios; and if such statement is not furnished, no discussion of the facts by the party omitting such statement will be permitted." (flule 40.) SECTION VI. At what Cohkt oe Teem a Motion mat be Heaed. In the first judicial district. — In the first judicial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial upon the merits. (Code of Civ. Pro., § 770 ; Boucicault v. Boucicault, 21 Hun, 431.) In an action triable in the first judicial district a motion must be made in that district (Code of Civ. Pro., § 769), except in a ease where it is specially prescribed by law that a motion may be made in the county where the applicant or other person to be affected thereby, or the attorney, resides. (Id.) A judge in the first judicial district has the same power to make an order, which elsewhere must be made by the court, as the court has in other districts of the State. {Lachenmeyer v. Lachenmeyer, 26 Hun, 542.) In other districts. — A motion, upon notice in an action in the Supreme Court, must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is tria- ble, except that it cannot be made in the first judicial district. (Code of Civ. Pro., § 769. See Rice v. Ehle, 65 Barb. 185 ; 46 How. 153.) But the above provision does not apply to a case where it is specially At what Court oe Teem a Motion may be Heaed. 525 In districts other than the first. prescribed b}'' law that a motion may be made in the county where the applicant or other person to be affected thereby or the attorney resides (Code of Civ. Pro., § 769), nor to a case where one motion is necessarily made and entitled in several actions triable in different counties and judicial districts. {Phillips v. Wheeler, 2 Hun, 603 ; 6 N. T. Sup. Ct. [T. & C] 306.) It includes only such motions as are made during the pendency of or relate to the suit, and in no manner affects or con- trols such motions as maybe made in other proceedings succeeding its final termination by a judgment. {Phillips v. Wlieeler, 67 N. Y. 104 ; CurUsY. Greene, 28 Hun, 294.) The county in which the action is triable is the county specified in the complaint as the place of trial {Bangs v. Seldon, 13 How. 168 ; Ohuihuck V. Morrison, 6 id. 368; AsTcinsY. Hearns,Z Abb. 185) ; or the county to which the venue has subsequently been removed by order of the court. {Bangs v. Seldon, 13 How. 374.) It is competent for counsel to agree to have a motion heard and de- cided at any Special Term in any county in the State, and an order made in it is reviewable when made in a county other than that desig- nated by the Code, as if it were made in the proper countj'. {Rice V. EhU, 46 How. 153 ; 65 Barb. 185. See Matter of Wadley, 29 Hun, 12.) Non-enumerated motions must be heard at Special Terra except when otherwise directed by law . (Rule 38.) A contested motion cannot be noticed or brought to a hearing at any Special Term held at the same time and place with a Circuit, except as otherwise provided by the justices of the district, and except in actions upon the calendar for trial at such Circuit, and in which the hearing of the motion is necessary to the disposal of the cause ; and except, also, that in counties in which no Special Term distinct from a Cir- cuit is appointed to be held, motions in actions triable in any such counties may be noticed and brought on at the time of holding the Circuit and Special Term in the county in which such actions are" triable. (Id.) A contested motion must be heard at a regular Special Term. {Mayer v. Apfel, 2 Sweeny, 729. ) It cannot be heard at a Special Term adjourned to his chambers by the justice holding it unless the parties consent. {Matter of Wadley, 29 Hun, 12. See, however, Code of Civ. Pro., § 239.) Non-enumerated motions in the Supreme Court, except in the first district, must be noticed for the first day of the term or sit- ting of the court, and notice cannot he for a later day miless 526 Trial Peaotioe. What j adges may make orders — In general. sufficient cause be shown and contained in the affidavits served for not giving notice for the first day. (Rule 21.) In other courts such motions may be made on any day designated by the judges. (Id.) If sufficient cause appear upon the moving papers, a motion may be noticed for a day in the term other than the first. Thus, where the motion was noticed for a Special Term in another county which adjourned unexpectedly, and before the motion could be made, and the motion was noticed for as early a day of a sub- sequent term as was practicable, it was held sufficient. ( Whipple V . Willimns, 4 How. 28.) Enumerated motions must also be no- ticed for the first day of the term. (Eule 40.) SECTION VII. What Judges mat Make Oedees. In general, — "Where an order in an action may be made by a judge of the court out of court, and without notice, and the par- ticular judge is not specially designated by law, it may be made by any judge of the court in any part of the State ; or, except to stay proceedings after verdict, report, or decision, by a justice of the Supreme Court, or by a judge of a Superior City Court within the city wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. (Code of Civ. Pro., § 772.) A judge of the Supreme Court, in any part of the State, may make an ex parte order in an action triable in the first judicial dis- trict. {Hull V. JIari, 27 Hun, 21.) A judge of a Superior City Court may make any order in a cause pending in any court which a judge thereof could make out of court, provided it is made in the city where his court is located. {Evert v. Duden, 5 Law Bull. 88.) A judge of a Superior City Court within his city possesses, and upon proper application must exercise, the power conferred by law, in general language, upon an officer authorized to perform the duties of a justice of the Supreme Court at chambers or out of court. (Code of Civ. Pro., § 241.) Each judge of the Superior Court of Buffalo may within that city make an order in an action or special proceeding pending in the Supreme Court, which a justice of the Supreme Court may make out of court. (Id., § 24o!) What Judges mat Make Oedees. 527 When county judge has jurisdiction. In an action or special proceeding in a County Court, an order may be made, without notice, or an order to stay proceedings may be made upon notice by a justice of the Supreme Court, in a case where the county judge in whose court the action or special proceed- ing is brought, may make the same out of court, and with like ef- fect. (Id., § 354.) But in an action brought in the City Court- of ITew York an or- der cannot be made by an ofHcer other than a justice of the court, and each provision of the Code which empowers an officer, other than a judge of the court in which an action is brought, to make an order therein must be construed as being exclusive of an action brought in the City Court of New York. (Id., § 327.) When county judge has jurisdiction.^ The above provision limiting the county judges who may make an order does not apply to a case where it is prescribed in the Code, in general words, that a particular order may be made by a county judge or by any county judge. (Code of Civ.. Pro., § 773.) Thus a county judge may make an order granting a provisional remedy, although the action is not triable in his county and although the attorney for the moving party does not reside therein. (Kennedys. Simmons,! Hun, 603; 4N. Y. Sup. Ct. [T. & C] 82. See Code of Civ. Pro., §§ 556, 606, 638.) It has been held that the power of a county judge to make orders in actions pending in the Supreme Court extends only to such orders as are made out of court and without notice ; that he has no juris- diction to hear and decide a contested motion. {Parmenter v. Roih, 9 Abb. [N. S.] 385.) But this rule is subject to qualifications. Sec- tion 772 of the Code, giving a county judge power in certain cases to make ex parte orders, expressly provides that such an order, un- less it grants a provisional remedy, may be vacated or modified with or without notice by the judge who made it. Section 606 provides that an injunction order may be granted by any county judge, and section 609 provides that the order may be granted upon or without notice in the discretion of the court or judge, and there- fore a county judge may make an order to show cause before him, why a temporary injunction should not be granted. {Babcoclc T. Olarh, 23 Hun, 391. See contra, Town of Middletown v. Rondout & Oswego R. R. Co., 43 How. 144, 481 ; 12 Abb. [N. S.] 276 ; Town of Rochester r. Davis, id. 270.) 628 Teial Peaotioe. Opposing tlie motion. A county Judge witliin his county possesses, and upon proper ap- plication must exercise, the power conferred by law, in general lan- guage, upon an officer authorized to perform the duties of a justice of the Supreme Court at chambers or out of court. (Code of Civ. Pro., § 241.) In an action or special proceeding in a County Court, an order may be made without notice, or an order to stay proceedings may be made upon notice, by the county judge of the county where the attorney for the applicant resides,in a case where the county judge in whose court the action or special proceeding is brought may make the same out of court, and with like effect. (Id., § 354.) In an action or special proceeding, brought in a Superior City Court, an order may be made without notice, or an order to stay proceedings may be made upon notice, by the county judge of the county where the court is situated, or of the county where the attor- ney for the applicant resides, in a case where a judge of the Supe- rior City Court might make the same out of court, and with like effect. (Code of Civ. Pro., § 277.) A special county judge possesses all powers and may perform all the duties of a county judge out of court. {Kmney v. Hoberis <& Co.j 26 Hun, 166.) SECTION YIII. Opposing the Motion. A party who is entitled to notice of a motion is also entitled to be heard in opposition to the application. A motion may be opposed upon the moving papers only, or upon counter-affidavits, or both. It may properly be opposed upon the moving papers when they fail to show the party entitled to the relief demanded in the notice, or to any relief ; or where they fail to comply with some express require- ment of statute or the rules of practice ; or where they show a want of jurisdiction in the court or judge to entertain the motion or to grant the relief sought. A motion should be opposed upon counter-affidavits where the moving papers are regular and show a prima fade case for the granting of the motion, but the facts alleged are either untrue, or other facts exist inconsistent with the rights of the moving party to the relief demanded. Affidavits to resist upon the merits should be prepared in the usual manner, and should be full and explicit, espe- cially upon all material points. Pkocbedings on the Hearing. 529 Default — Inability of judge to hear — Preliminary objections. If the adverse party is a defendant, and no answer has been served, or if the answer served was not verified, an affidavit of merits should be presented, unless one has already been filed and served, in which case an affidavit of that fact is sufficient. (Rule 23.) A defense on the merits can only go to the merits of the motion, not of the action. It is no answer to any of the ordinary motions in the progress of the trial that the complaint does not state facts sufficient to constitute a cause of action. {Banks v. Maker, 2 Bosw. 690 ; Draper v. Ren- singsen, 16 How. 281.) SECTION IX. Peoceedinqs on the Hearing. Default, — If the adverse party does not appear to oppose the motion, the party making the motion or obtaining the order to show cause is entitled to the order moved for, on proof of the service of the notice or order and papers required to be served by him, unless the court shall otherwise direct. • (Rule 37.) But the motion will not be granted if the affidavit of service be insufficient. {Jackson, V. Giles, Col. & Cai. 442 ; 3 Oai. 88.) Where an order is taken by default the party obtaining it can only take what he asks for in his notice. {Northrop v. Vam, Dusen, 5 How. 134; Rogers y. Toole, 11 Paige, 212; Jones v. Cook, 11 Hun, 231.) He cannot be granted any rehef under a general prayer. Inability of judge to hear. — "Where notice of a motion is given, or an order to show cause is returnable, before a judge out of court, who, at the time fixed for the motion, is or will be absent, or un- able, for any other cause, to hear it, the motion may be transferred, by his order, made before or at that time, or by the written stipu- lation of the attorneys for the parties, to another judge, before whom it might have been originally made. (Code of Civ, Pro., § 771.) Preliminary objections. — Irregularities in the proceedings or papers of the moving party should be objected to upon the hearing. While an order will not be granted upon the default of the adverse party if proof of service of the notice is insufficient, yet if the party does not raise the objection, and the court does not notice the defect, the objection cannot, after a lapse of time, be raised. {Games v. 67 530 Tkial Peactioe. The argument. Brown, 3 Cai. 88, Boto.) If the notice itself is defective the adverse party must attend and raise the objection. {Jloyt v. Campbell, Col. & Cai. Cas. 129.) Defects in the proceedings of the moving party are deemed waived if not raised on the hearing. [Main v. Pope, 16 How. 271 ; Roosevelt v. Dean, 3 Cai. 105.) If the adverse party appear merely for the purpose of asking an adjournment he waives any objection to the proof of service of the notice. ( JJtiGa City Bank v. Buell, 9 Abb. 385 ; 17 How. 49S.) And if he enter into the argument he waives all objections to the coming on of the motion. [Roosevelt v. Bean, 3 Cai. 105.) Preliminary objections may be heard and decision thereon reserved imtil after a hearing upon the merits so that the whole motion may be disposed of together. (See Lowher v. Mayor of N. Y., 5 Abb. 32Y, note.) The argument. — The party noticing the motion or obtaining the order to show cause must bring on the motion, and is entitled to open and close the argument. {New York <& Harlem R. R. Co. v. Mayor, 1 Hilt. 562 ; Thompson v. Erie Ry Co., 9 Abb. [N. S.J 233 ; Town of Middleton v. Rondout c& 0. R. R. Co., 43 How. 144.) But on motion at Special Term it is not very material which party opens or closes, and the court upon review will only inquire into the correctness of the decision, where the order grants or denies the motion. {People v. New York Cent. & H. R. R. R. Co., 28 Hun, 543, 546 ; 3 Civ. Pro. K. 11.) The burden of proof lies upon the moving party to prove the facts which he alleges ; but if the ad- verse party admits those facts and alleges matter in avoidance, the burden of proving that rests upon him. {Shearman v. Hart, 14 Abb. 358.) The party opposing the motion, if he desires to present affidavits, should have them prepared. A motion will not be postponed to give time to prepare affidavits unless good reason is shown. {Jackson V. Ferguson, 3 Cai. 127.) Where new matter is set up in the affidavits read in opposition to a motion the party making the motion may, in the sound discre- tion of the court, be permitted to produce affidavits in reply to such new matter. {Florence v. Bates, 2 Code R. 110 ; Shearman v. Hart, 14 Abb. 358.) But he cannot be permitted to set up new matter in avoidance of the new matter set up by hjs opponent (Id.), Peooeedings on the Hearing. 531 The argument. unless by express statutory authority. (Code of Civ. Pro., §§ 683, 627, 568.) The opposing party must, however, object at the time to the reading of such new matter or he will be regarded as consent- ing that it be received. (See Eihbe v. Wetmore, 31 Hun, 424.) On a motion to vacate an order granting an attachment the plaintiff can- not use new affidavits where the motion is made on the original papers. If tlie moving party makes his application upon proofs the plaintiff may sustain, by new proofs, his right to the attachment upon any of the grounds stated in the warrant. (Code of Civ. Pro., § 683 ; Steuben County BanTc v. Alherger, 75 N. T. 179. And see Code of Civ. Pro., §§ 568, 627; Childs v. Fox, 18 Abb. 112; 2 Eob. 660.) It is questionable whether affidavits in respect to the credibility of a party can be read on a motion. If received, an opportunity to produce counter- affidavits should be given. (Merritt v. Baher, 11 How. 456. See Callen v. Kewrney, 2 Cow. 529 ; OlarJc v. Frost, 3 Cai. 125.) "Where leave is given to the moving party to produce affidavits in answer to new matter set up by his oppoiient the motion may be postponed to allow him to prepare them. A party opposing a motion should not be granted affirmative re- lief upon matter set up by him which the moving party has had no opportunity to answer. {Garde v. Sheldon, 3 Barb. 232.) A judge before whom a motion is made at Special Term cannot direct the responding party to appear before him and be examined orally touching the matter of fact involved in the controversy, and upon his refusing to submit to such exaraination, determine the motion against him as upon confession of the allegations of the moving party. {Meyer v. Lent, 7 Abb. 225.) The motion should be decided upon the affidavits if practicable. Stelle v. Palmer, 7 Abb. 181.) But if the affidavits are not sufficiently definite and certain a reference should be ordered to determine the questions of fact raised. (Code of Civ. Pro., § 1015 ; Meyer v. Lent, 7 Abb. 225 ; Barron v. Sanford, 6 id. 320, note ; 14 How. 443 ; Tammien v. Clause, 67 Barb. 430.) Such a reference is merely to inform the conscience of the court, and the findings of the referee do not con- clude it. It could adopt find act upon it, or could disregard it and draw its own conclusions from the evidence. {Marshall v. Meech, 51 N. T. 140 ; contra, Prown v. Marigold, 50 How. 248.) 532 Trial Feactice. The order — General requisites as to form, etc. On non-enumerated motions but one counsel on each side can be heard, and not more than half an hoiir each, unless the court shall otherwise order. (Rule 46.) SECTION X. The Oeder. General requisites as to form, etc. — A direction of a court or judge in an action or a special proceeding, unless it is contained in the judgment, is an order, and, unless otherwise specified in a particular ease, must be in writing. (Code of Civ. Pro., § 76Y.) An order in writing is the only mode of judicially determining a special motion. A mere oral decision of the court is of no avail without an order making it a record. {Smith y. Spaulding, 30 How. 339 ; 3 Rob. 615.) And a memorandum of decision is not the direction in writ- ing required by section 767 of the Code. {Seeman v. Jieiche, 16 Week. Dig. 561.) An order made out of court by a judge should be entitled in the cause, dated, and signed by the judge who makes it, over his official title. Even where a judge out of court in the first judicial district makes an order, which elsewhere must be made in court, it should simply be in form an order of the judge . {Laohenmeyer v. Lachen- meyer, 26 Hun, 542.) An order made by the court should also be entitled in the cause, and should have a caption stating the term of the court, the time and place at which it was held, and the name of the judge or judges presiding. But a caption does not necessarily make an order an order of the court. If the order was in fact made by a judge out of court, and so signed by him as such, it may be regarded as made out of court. {Phinney v. Brosohell, 80 K. Y. 544 ; 19 Hun, 116 ; Mcjarrieta v. Saenz, 80 N. Y. 553; Atlantic, eta., Tel. Co. v. Baltimore, ete., M. M. Co., 14 Jones & Sp. 377. See Bell v. Yernooy, 18 Hun, 125 . ) And this is so, although there was a di- rection to enter the order, if it was not in fact entered. {Phinney V. Broschell, 80 N. Y. 544.) The mere entitling an order as at Special Terra, which by law may be made by a judge out of court, or the making of it by the judge while sitting at Special Term, instead of when sitting at chambers, does not vitiate the order. He has the power to make the order as a judge, and it detracts nothing from the force of the order made The Oedee. 533 General requisites as to form, etc. — Conditions or terms. by him as a judge that he makes it at the Special Term or entitles it as made at the Special Term. {Matter of Knickerbocker Bcmk, 19 Barb. 602; WicTces v. Dresser, 4 Abb. 93; 13 How. 331; People V. Kelly, 35 Barb. 444, 446 ; 13 Abb. 405.) But where a judge, holding a Special Term and chambers at the same time, makes an order entitled at chambers, it will be deemed as granted out of court. ( Wood v. Kimball, 9 How. 419 ; 18 id. 163.) An order should state the proceedings upon the hearing, the names of counsel appearing for and against the motion, and where an order upon anon-enuuierated motion is to be entered it must spe- cify all the papers used or read on the motion, on either side (Rule 3.) It is not sufficient to state generally that the motion was made upon all the papers and proceedings in the action. {Jiobart V. Robart, 85 N. T. 637.) Orders granted on petitions, or relating thereto, must refer to such petitions by the names and descriptions of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. (Rule 27.) It is the duty of the attorney, and not of the judge, to supervise the regularity of the practice and to see that the order taken is not too broad for the case on which it is founded. {LaFarge v. Van Wagenen, 14 How. 64, 57; Scuddsr v. Snow, 29 id. 95.) In case of an order special in its provisions the party entitled to draw it up should submit a draft thereof to the adverse party, so that he may propose amendments before the order is settled and entered. ( Whit- ney V. Belden, 4 Paige, 140.) It is not material whether an order be reduced to form and receive the fiat of the judge at the time it is made or at a subsequent period, but it should be dated as of the time when it was actually made. {Smith v. Ooe, 7 Rob. 477.) An order bearing date as of a period not yet arrived is absolutely void upon its face ; certainly so until the arrival of the day on which it pur- ports to be dated. (Id.) The order must make the proper provisions as to costs. (See j)os^.) (For forms of orders, see Appendix.) Conditions or terms. — Upon granting a favor to a party the court may, in its discretion, impose such conditions or terms as it deems just (See Code of Civ. Pro., § 723 ; Gale v. Vernon, 4 Sandf. 709 ; Lord v. Vandenhurgh, 15 How. 363, 365), and where a favor is granted to a party on condition he must at his peril take notice of 534 Trial Peaotice. Conditions or terms. the condition and comply with it, if he desires to avail himself of the benefits of the order. {WiUinJe v. Henwick, 22 Wend. 608.) A party availing himself of the benefit of an order made on his own motion is bound by the order as made. ( Weichsd v. Spear, 15 Jones & Sp. 223.) But where a party asks for a favor, or for a matter of strict right, and the court grants his motion on his performance of certain imposed conditions, there is no authority in the court to com- pel the performance of the conditions, if the party elect not to take the favor or right which the court granted conditioned on such per- formance. {Neill V. Wuest, 17 Abb. 319, note.) One who asks an order which the court may, in its discretion, grant or refuse must, if he obtains it, submit to the conditions which the court imposes. He need not accept it, however, and if he does not, he stands as if the favor was denied. {Matter of Waverly Water -Works Co., 85 N. Y. 478 ; Brownell v. Ruchnan, id. 648.) The payment of costs is the condition usually imposed, but stipu- lations to accept short notice, not to sue, etc., are frequently required- A void writ or process furnishes no justification to a party acting under it, and the court upon vacating such process, upon the applica- tion of the party proceeded against under it, has no power to impose a condition that he shall not sue for false imprisonment. In such a case the right to sue accrues when the process is executed and can- not be taken away by the court. {Matter of Bradner, 87 N". Y. 171 ; Tompkins v. Smith, 1 Civ. Pro. E. 398 ; 62 How. 499.) In case of process merely voidable the right to sue only accrues when the court sets aside the process, and the court has power, there- fore to impose a condition. (Matter of Bradner, 87 N. Y. 171.) Where the case is one where a condition is proper it must be imposed, if at all, when the writ or process is vacated. {People v. Bowe, 81 N. Y. 43; Matter of Bradner, 87 id. 171.) If a stipulation is re- quired which a party cannot comply with, he should nevertheless give it, and when moved against for a failure to comply he should set up the facts which render his compliance impracticable. {Gale V. Verrwn, 4 Sandf. 709.) Where an order is granted " on payment of costs " it is conditional and the costs must be paid within twenty-four hours, where no time is specified . The party who is to pay must seek out and tender them to the other party . {Sabin v. Johnson, 7 Cow. 421 ; Pugsley v. Van Allen, 8 Johns. 351 ; Hoffman v. Treadwell, 5 Paige, 82.) The Oedee. 535 Entry, and filing papers. But an order to amend and pay costs does not make payment a con- dition precedent. {Sturtevant v. Fairman, 4 Sandf. 674.) In cases where a party is required to pay costs, as a condition of granting him a favor the order should specify the amount, or desig- nate some officer to settle the amount. ( Van Sohaioh v. Winne, 8 How. 5, 6.) Where a motion is granted conditionally upon the failure of the opposing party to do a certain act, and he fails to perform, the moving party may show such failure by affidavit and apply ex parte for an order granting the motion absolutely. {Stewart v. Berge, 4 Daly, 477.) Entry, and filing papers. — An order granted upon an ex parte application need not be entered, unless it is required to be entered by express provision of statute, by a rule of court, or by a direction of the judge who granted it. {Savage v. Reltjea, 3 How. 276.) All orders made upon notice, and from which an appeal will lie, whether made in court or by a judge out of court, must be entered with the clerk. (Code of Civ. Pro., §§ 1342, 1347, 1348, 1304, 1351.) No appeal lies from an order until it is entered and the motion papers are filed. {Pool v. Safford, 10 Hun, 497 ; Star Fire Ins. Go. Y. Oodet, 2 Jones & Sp. 359 ; Smith v. Dodd, 3 E. D. Smith, 215.) And a party cannot give the notice required to limit the time to appeal until the order has been entered. {Oallt v. Pinch, 24 How. 193.) In an action brought in the Supreme Court the clerk with which the order is to be entered is the clerk of the county in which the aqtion is triable. (Code of Civ. Pro., § 3343, snbd. 4. See Bronner V. Loomis, 17 Hun, 439, 441.) When the afiidavits and papers upon a non-enumerated motion are required by law or by the rules of the court to be filed, and the order to be entered in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a cer- tified copy of the rough minutes, showing what papers were used or read, together with the affidavits and papers used or read upon snch motion, with a note of the decision thereon, or the order directed to be entered, properly certified. And it is the duty of the party to whom such papers are delivered to cause the same to be filed, and the proper order entered in the proper county within ten days there- after, or the order may be set aside as irregxilarwith costs. (Rule 3.) 536 Tbial Peactioe. Entry, and filing papers. It is the common practice, in case of motions heard at a Special Term held in a county other than that in which the action is triable and at which no clerk is in fact in attendance, for the court to direct, at the foot of the order, the county in which the order shall be en- tered, and to indorse upon each paper used or read the word " read " over his initials. An order made out of court upon notice must be entered with the clerk of the county in which the action is triable. When any order on a non-enumerated motion is entered, all the papers used or read on the motion on either side must be specified in the order, and must be filed with the clerk, unless otherwise ordered by the court, or the order may be set aside as irregular with costs. The clerk cannot enter such order unless the papers are filed, except when otherwise specially directed by the court. (Eule 3.) In cases where no provision is made by the Code, papers in the Supreme Court shall be filed in the office of the clerk of the county specified in the complaint as the place of trial ; in Surrogates' Courts, in the oflSice of the surrogate ; in other courts of record, in the of- fice of the respective clerks thereof. In case the place of trial be changed to another county, all subsequent papers shall be filed in the county to which such change is made. All papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys, and his or their office address or place of business. This rule shall apply to parties appearing in person. (Rule 2.) In case of orders made out of court, or where the court directs an order made by it to be entered in a county other than that in which the court is held, it is the duty of counsel to see to it that the order is duly entered. {Soudder v. Snow, 29 How. 96 ; Rule 3 ; Savage V. Relyea, 3 id. 276.) And on a motion made to a justice out of court, upon notice, the respective attorneys must file the affidavits and other papers used by them. (Savage v. Relyea, 3 How. 276.) It is their duty to do so of course, and the court will compel them to do so upon suggestion. (^Anonymous, 5 Cow. 13.) If the prevailing party fails to enter the order the unsuccessful party may move at Special Term for an order compelling him to do so (See Gallt v. Finch, 24 How. 193, 195), or if the party who is entitled to enter the order fails to do so within twenty-four hours after the decision has been made, any party interested may have it di-awn up and entered. {Matter of Rhinebeoh o6 Gonn. R. R. Co., 8 Hun, 34 ; 67 N. Y. 242 ; Peet v. Gowenhoven, 14 Abb. 56.) A The Oedee. 537 Entry, and filing papers — Service. party cannot, by omitting to enter an order, obtain a right to renew a motion. {Tlall v. Emmons, 2 Sweeny, 396.) It is the clerk's duty to enter an order, without any special directions to that effect, and it may be entered nunc •pro tunc when accidentally omitted and when necessary to sustain proceedings had in good faith and otherwise unexceptionable. {People v. Central City Bank, 53 Barb. 412, 416; 35 How. 428; Matter of EhinebecTc c& Conn. JR. -R. Co., 8 Hun, 34.) And an order may be entered nuno pro tune to protect a party from the delay of a court in rendering its decision. {Clappy. Graves, 9 Abb. 20; 2 Hilt. 317; Crawford y. Wilson, i Barb. 504, 524; Wilson v. Henderson, 15 How. 90.) An order must be entered as made ; it is irregular to disregard it because erroneous, and enter a different order. ( Williams v. Murray, 2 Abb. [N. S.] 292 ; 32 How. 187.) The decision of several applica- tions, or several directions in a cause, given at the same time, should be embraced in one order. If anything is omitted tlie adverse party should not enter another order, but should apply to have the order entered corrected. {Hunt v. Wallis, 6 Paige, 371.) In case of motions made after the entry of final judgment, the papers used must be filed, and the order must be entered in the oflieo of the clerk of the county in which the judgment was entered, within ten days, or the order may be set aside as irregular under the third general rule. {Curtis v. Greene, 28 Hun, 294.) Where a stipulation, signed by the attorneys for the parties, to the effect that they consent that a commission may issue, or that an order to take a deposition may be made, is filed in a case where either may be directed by the court or a judge, the clerk must enter an order accordingly. (Code of Civ. Pro., § 908.) And where, in a proper case, a stipulation is filed consenting to a reference and naming the referee, the clerk must enter an order of course referring the issue or issues for trial to that person only. (Id., § 1011 .) Service. — It is the duty of an attorney obtaining an order in an action to serve a copy of it on the opposite attorney in all cases where the rights of the other party may be affected or prejudiced by any proceedings taken under the order. TTntil the order has been served no active proceedings can be taken under it. {Johnson v. Green, 3 Abb. [N. S.] 342 ; Jackson v. Wilson, 9 Johns. 265.) It has been held, however, that it is not necessary to serve an or- 68 538 Teial Pkaotice. Renewal of motions. der of reference, made upon a motion, duly noticed. {Moffatt v. Judd, 1 How. 193.) Where an ex parte order, which is not entered, is served, the affi- davit upon which it was granted, or a copy thereof, must be served with the order, or it may be disregarded. {Savage v. lielyea, 3 Uow. 276 ; Code of Civ. Pro., §§ 562, 610, 782.) To Hmit the time within which to appeal from an order, a copy of the order and a written notice of the entry thereof must be served. (Code of Civ. Pro., §1351.) Another object of serving an order is to bring the party served into contempt, if he fail to obey the order. A party who is served in due manner with an order, valid upon its face, is bound to obey it, or to immediately ask the court to relieve him upon stated grounds. {Hilton v. Patterson, 18 Abb. 245 ; People v. Sturtevant, 9 N. Y. 263 ; Clarh v. Bininger, 75 id. 344 ; Mayor of W. Y. v. Wew York c& Staten Island Ferry Co., 64 id. 624.) To bring a party into contempt for disobedience of an ex parte order which is not entered it should be served by exhibiting the original order to and leaving a copy thereof with the party served. But it has been held that a party must obey such an order, so far as the pecuniary rights of the party obtaining the order are con- cerned, if he had knowledge of it, information of its contents, and was present in court when it was granted, although when he was served with the order the original was not exhibited to him. {Liv- ingston V. Swift, 23 How. 1.) SECTION XL Renewal of Motions. If an application for an order, made to a judge of the court, or to a county judge, is wholly or partly refused, or granted conditionally, or on terms, a subsequent application in reference to the same matter, and in the same stage of the proceedings, shall be made only to the same judge, or to the court. If it is made to another judge, out of court, an order granted thereupon must be vacated by the judge who made it, or, if he is absent or otherwise unable to hear the applica- tion, by any judge of the court, upon proof by affidavit of the facts. (Code of Civ. Pro., § 776.) A person making an application for- bidden as above, with knowledge of the previous application, shall be punished by the court for a contempt. (Id., § 778.) Whenever Renewal of Motions. 539 Renewal of motions. application is made ex parte, on affidavit to a judge or court for an order, the affidavit must state vfhether any previous application has been made for such order, and if made, to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown. For an omission to comply with the above rule any order made on such application may be revoked or set aside. (Rule 25.) But a failure to show, as required by Kule 25, that no previous application has been made, is simply an irregularity which authorizes, but does not compel the court to refuse the order or to r6voke or set it aside if granted. {Bean v. Tonnelle, 24 Hun, 353.) Where a motion upon notice has been denied it cannot be renewed except before the judge who presided on the hearing of the motion unless there is express statutory authority for its being renewed elsewhere. (People v. National Trust Co., 31 Hun, 20, 25. See Hall V. Emmons, 2 Sweeny, 396 ; 8 Abb. [N. S.J 451 ; 39 How. 187; Belmont v. Erie Wy Co., 52 Barb. 637.) The power of a justice at Special Term to pass upon orders made by another justice at Special Term will be considered hereafter. Where a motion, upon notice, is denied upon the merits without leave to renew, a party desiring to renew the motion should iirst obtain the leave of the court. {Belmont v. Erie Wy Co., 52 Barb. 637 ; Banh of Havana v. Moore, 5 Hun, 624 ; Hall v. Emmons, 2 Sweeny, 396 ; 8 Abb. [K S.] 451 ; 39 How. 187 ; Wentworth v. Wentworth, 51 id. 289 ; First Nat. Bank v. Hamilton, 50 id. 116 ; Dunn V. Meserole, 5 Daly, 434 ; Dollfus v. Frosah, 5 Hill, 493 ; Mills V. Thursby, 11 How. 114; Sehultze t. Bodewald, 1 Abb. N. C. 365 ; Easton v. Piohersgill, 75 JST. Y. 599.) But the rule requir- ing leave to be obtained before renewing a motion is one of practice merely to avoid confusion and abuses, and does not affect the power of the court to reconsider its decision on a motion, upon additional facts. The court may, if it sees fit, insist upon that preliminary, but it has the power to dispense with it and entertain and dispose of the whole matter in one order. {Riggs v. Pursell, 74 IT. Y. 370. And see Harris v. Brown, 93 id. 390.) Notice may be given stating that an application for leave to renew will be made, and that the motion will be renewed in case such leave is granted. {Fowler v. Harier, 7 Rob. 52.) A motion may be renewed, without leave of the court, upon a new state of facts arising after the denial of the motion." {Belmont v. Erie E'y Co., 52 Barb. 637 ; Eric E'y Co. 640 Teial Practice. Reviewing or vacating orders. V. Ramsey, 57 id. 449 ; Butts v. Burnett, 6 Abb. [N. S.] 302 ; Fox V. Fox, 24 How. 385.) But such new matter must be some- thing which has happened or for the first time came to the knowl- edge of the moving party since the decision of the former motion. ( Willet V. Fayerweather, 1 Barb. 72 ; Crocker v. Crocker, 1 Sheld. 274; Pattison v. Bacon, 12 Abb. 142; 21 How. 478.) Affidavits which merely present additional or cumulative evidence on the points before presented cannot be considered as showing new grounds for the motion. {Ray v. Connor, 3 Edw. 478; Schultzev. Rodewald, 1 Abb. N. C. 365 ; Hoffman v. Livingston, 1 Johns. Ch. 211.) The court has power, in its discretion, to allow a motion to be renewed upon the same state of facts that existed when the original application was denied. ( White v. Munroe, 33 Barb. 650 ; 12 Abb. 357 ; Belmont v. Erie Ry Go., 52 Barb. 637 ; Wentworth v. Wejit- worth, 51 How. 289.) But such power is rarely exercised. (See Riggs V. Pursell, 74 IST. T. 370, 379.) The denial of a motion upon the default of the moving party is no bar to its renewal if the default be sufficiently excused. {Bow- man V. Sheldon, 5 Sandf. 657.) SECTION XII. Reviewing oe Yaoating Oedees. Where an order made by a judge out of court, without notice, grants a provisional remedy it can be vacated only in the mode spe- cially prescribed by law ; in any other case it may be vacated or modified without notice by the judge who made it, or upon notice by him or by the court. (Code of Civ. Pro., § 772. See Levy v. Loeh, 5 Abb. N. 0. 157, 166.) To get rid of an ex parte order im- properly made the proper practice is to move the court at Special Term, upon notice, to set it aside ; and if the motion is denied, to appeal from the order of denial. No appeal lies from an ex parte order ; and this is so, although it vacates and sets aside an order theretofore made. {People v. Comtnon Council, 30 Hun, 636 ; Bank of Genesee v. Spencer, 15 How. 14 ; Savage v. Relyea, 3 id. 276 ; Lindsay v. Sherman, 5 id. 308. See Conway v. Hitchins, 9 Barb. 378.) A judge who has power to make an order has power to vacate or modify it. (Code of Civ. Pro., § 772 ; Bigelow v. lleaion, 2 How. 207 ; Moore v. Merritt, 9 Wend. 482 ; Fidlerton V. Gaylord, 7 Rob. 551 ; HerrJg v. Mdzger, 62 How. 355.) The f I I \ Reviewing oe Vacating Obdees. 541 Beviewing or vacating orders. court has power to vacate or modify aii order made by a judge out of court. ( Woodruff v. Fisher, 17 Barb. 224 ; Lindsay v. Sher- man, 5 How. 308.) And the court has also power over its own orders. If an order is improvidently or erroneously granted, the party aggrieved may apply to vacate it. {People v. Bergen, 53 N. T. 404, 410 ; Pitt v. Davison, 37 Barb. 97.) But a judge has no power to review an order made by another judge. {Hart v. Butterfield, 3 Hill, 455 ; Cayuga Co. BanTc v. Warfield, 13 How. 439.) And one branch of the court has no power to review an order of another branch of co-ordinate jurisdiction. A justice sitting at Special Term cannot reverse or vacate the order of another justice at Special Term. {Fisher v. Hepburn, 48 N. T. 41, 53 ; Kamp v. Kamp, 59 id. 212, 217; People v. National Trust Co., 31 Hun, 20 ; 4 Civ. Pro. R. 203 ; Hallgarten v. Eckert, 1 Hun, 117 ; Wilson V. Barney, 5 id. 257; DinJcelspiel v. Levy, 12 id. 130; People v. Cooper, 57 How. 463, 466 ; Mayer v. Apfel, 2 Sweeny, 729 ; Mat- ter of Livingston, 34 N. Y. 555, 576 ; contra, Selden v. Christophers, 1 Abb. 272, 273 ; Matter of New York S Oswego Midland R. R. Co., 40 How. 335 ; Belmont v. Erie Ry Co., 52 Barb. 637.) The only class of cases in which by the Code one justice of the court is authorized to vacate or modify the orders made hj another is that provided in section 772, and those relating to provisional remedies. With these exceptions, do authority has been, expressly or by clear implication, given to one justice presiding in court to vacate or re- consider the orders made by another. In its theory the policy of the Code has been to prevent one judge from reconsidering and re- viewing the orders which, upon motion, may have been heard and dc cided in a court held by another. {People v. National Trust Co., 31 Hun, 20 ; 4 Civ. Pro. R. 203.) Where the order which it is sought to vacate or review resulted from a default without any actual decision of the court directing it the principle is not applicable. (Id. ; Thompson v. Erie R'y Co., 9 Abb. [N. S.] 233.) Where a motion has been heard and improperly decided, the defeated party is not confined to his remedy by appeal. He may apply for a rehearing, provided he does so before a court held by a judge making the decision ; and that may be done either upon the original papers only, or upon further papers supplied and served for that purpose. {Arnold v. Oliver, 64 How. 452 ; People v. Ber- gen, 53 IST. T. 404, 410 ; White v. Munroe, 33 Barb. 561 ; Pitt v. 543 Teial Pkactice. Costs — Discretionary. Davidson, 37 id. 97 ; Smith v. Spaulding, 30 How. 339 ; Belmont Y. Erie R'y Co., 52 Barb. 637.) And the rule is the same whether it is the party obtaining the original order or the adverse party )vho asks to open the order. {Belmont v. Erie Wy Co., 52 Barb. 637, 650.) Whatever can be done upon motion to the court may by the court, upon further motion, be altered, modified, or wholly undone. (Id.) The court has power to correct or reform any order which has been inadvertently made, or to substitute a proper order in place of the improper one. {American Hosiery Co. v. Riley, 12 Abb. N. C. 329.) The Code (§ 724) provides that the court may, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from an order taken against him through his mistake, inadvertence, surprise or excusable neglect. SECTION XIII. Costs. Discretionary. — Where the costs of a motion are not specially regulated by the Code, they may be awarded either absolutely or to abide the event of the action to any party in the discretion of the court or jiTdge. (Code of Civ. Pro., § 3236.) In exercising this discretion certain well-defined rules are followed. As a general rule, costs are awarded to the party succeeding upon the motion ; but the awarding of costs is confined to such motions as are litigated, or such as require the preparation and service of pa- pers and notice upon the adverse party. {Boxone v. Anthony, 13 How. 301. But see Langbein v. Gross, 14 Abb. [N". S.] 412 ; 46 How. 50 . ) If a motion upon notice is not opposed, no costs are awarded, unless they were specifically asked for in the notice. {Northrop v. Van Duzer, 5 How. 134.) But upon a litigated mo- tion costs may be awarded, although not aslced for in the notice. {Banta v. Marcellus, 2 Barb. 373; Jones v. Cook, 11 Hun, 230.) If the moving party asks for more relief than he is entitled to, no costs are awarded, although the motion is partially granted. ( WMp' pie V. Williams, 4 How. 28; Steam Navigation Co. v. TFeet?, 8 id. 49; Penfield y . White, id. 87; Corhin v. George, 2 Ahh. i65 ; McKensie v. Ilaokstaff, 2 E. D. Smith, 75; Wentworth y . Went- worth, 51 How. 289, 294. But see Dennison v. Dennison, 9 id. 246, 24S. ) If the moving party asks for costs, that is sufficient rea- Costs. 543 Discretionary. son for allowing costs to the opposing party on denial of the motion, although no costs would otherwise have been awarded. ( Weeks v. SoutkwicJc, 12 How. 170 ; Battershallv. Davis, 23 id. 383.) And ■where the motion was granted, the moving party has been charged with costs for compelling the adverse pai-ty to attend to prevent costs being taken against him by default. {Phelps v. Wasson, 2 How. 126.) Where the relief granted to the moving party is a favor, he is not allowed costs {Jones v. United States Slate Co., 16 How. 129), but will be charged with costs of opposing the motion if he was in fault. {Leighton v. Wood, 17 Abb. 177.) The party moved against cannot deprive the moving party of costs by correcting the alleged irregularity after notice of motion. {Hill V. Smith, 2 How. 242.) And a notice of motion cannot be with- drawn or countermanded without payment of costs. (See ante, p. 518.) Where several causes are pending between the same plaintiff and different defendants, but the same attorneys appear in each, and mo- tions are made in each cause on separate papers, costs of but one motion will be allowed if all the motions might have been made in one. {Post V. JenTcins, 2 How. 33 ; Cortland Co. Mut. Ins. Co. v. Lathrop, id. 146 ; MoGoun v. New Torh Cent, di H. E. R. R. Co., 50 N. T. 176, 181 ; Eornfager v. Hornfager, 6 How. 13.) Where two motions are made in the same action when the relief could have been obtained in one, costs of opposing the motions should be awarded against the moving party, although the relief is granted. {Mitchell v. Westervelt, 6 How. 265, 311, note.) But where one motion is denied and the other granted, it has been held that no costs should be allowed to either party. {Tinltey v. Langdon, 60 How. 180, 185.) If a motion be needlessly made for the purpose of obtaining costs, they will not be granted, or will be granted to abide the event. {Stiles V. Fisher, 3 How. 52.) If a motion be needlessly or un- fairly opposed, costs will be awarded against the opposing party^ although they would not otherwise have been so awarded. {Bell V. Judson, 2 How. 42.) Where the question is a new one no costs are awarded to either party as a general rule. {People v. Assessors, 44 Barb. 148, 161 ; 29 How. 371 ; Northroj) v. Van Dusen, 5 id. 134 ; Purchase v. Jackson, 14 id. 230 ; Ely v. Holton, 15 IST. T. 595, 600 ; Bolles v. Buf, 55 Barb. 580 ; 7 Abb. [TST. S.] 385 ; 38 How. 504 ; Cooper v. 5ii Teial Practice. Must be awarded — Amount. Jolly, 3 Civ. Pro. E.. 9 ; Matter of Ketchum, 60 How. 154, 156 ; Miller v. Sheldon, 15 Ilun, 220.) And where the decisions upon the point in question arc conflicting costs are not awarded. (See Tindal v. Jones, 11 Abb. 258 ; 19 How. 469 ; Geraud v. Stagg, 10 id. 369; 4 E. D. Smith, 27; Silliman v. Eddy, 8 How. 122.) Ordinarily no costs are awarded on a motion for an additional allow- ance of costs. {Schwartz v. Poughheepsie Mut. Fire Ins. Co., 10 How. 93; Magnin v. Dinsmore, 47 id. 11, 12; Lockman v. Ellis, 58 id. 100, 102.) But it is not an erroneous exercise of dis- cretion to award costs on such a motion. {Dichson v . McElwain, 7 How. 138. And see Bright v. Milwaukee, etc., R. R. Co., 1 Abb. N. C. 14, 18.) Where the defendant moved for the dis- charge of an order of arrest, and it appeared that he was not guilty of bad faith, no costs were allowed although the motion was denied. [Schadle v. Chase, 16 How. 413.) A motion for a discovery and inspection of books will be denied with costs, when an offer was made to allow the moving party to examine and inspect all the books and papers which he would have been entitled to examine under an order. ( Walmsley v. Nelson, 3 Abb. K C. 127.) Upon an application for judgment upon a pleading as frivolous costs as upon a motion may be awarded. (Code of Civ. Pro., § 537.) Must be awarded. — A party's right to costs of a motion rests upon the order made. {Lennox v. Eldred, 65 Barb. 526.) The costs must be given in the order on the motion, and the amount must be fixed by the court or judge. {Chadwick v. Brother, 4 How. 283 ; Van Schaick v. Winne, 8 id. 5 ; Morrison v. Ide, 4 id. 303 ; Bur- nett V. Phalon, 21 id. 100, 103.) If the costs are awarded to abide the event of the action, the order will so state. If no time of pay- ment is fixed by the order they must be paid within ten days after service of the copy of the order. (Code of Civ. Pro., § 779.) Amount. — Upon a motion for a new trial upon a case, costs awarded must be as follows : before argument, $20 ; for argument, $40. Upon any other motion costs are as follows : to each party to whom costs are awarded, a sum fixed by the court or judge, not ex- ceeding $10, besides necessary disbursements for printing and referee's fees. (Code of Civ. Pro., § 3251, subd. 3.) Costs. 545 How collected. Where either a discovery or inspection of books, etc., is directed, and a referee is appointed by the order to direct and superintend it, a fixed sum, not exceeding $20, may be added to the costs of the motion for the fees of the referee. (Id., § SOY.) How collected. — Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after service of a copy of the order, an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order, or in case permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which execution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property ; and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings. Where the order directs that the costs of a motion abide the event of the action, or where costs of a motion, awarded by an order, have not been collected, when final judgment is entered, they may be taxed, as part of the costs of the action, or set off against costs awarded to the adverse party, as the case requires. But the above provisions cannot be so construed as to relieve a party or person from punish- ment as for contempt of court for disobedience to an order in any case when the remedy of enforcement by such proceedings existed when such provisions took effect. (Code of Civ. Pro., § 779.) 69 APPENDIX OF FORMS. AFE'IDAVITS. No. 1. Affidavit of merits. See ante, p. 39. (Title of the cause.) ( Venue.) Richard Roe, being duly sworn, says, he is the defendant in the above-entitled action ; that he has fully and fairly stated the case in said action to J. 0., Esq., who is a counselor of this court and defendant's counsel in this action, and who resides at in the said . , and that he has a good and substantial defense upon the merits thereof, as he is advised by defendant's said counsel, after such statement made as aforesaid, and as he verily believes. {Jurat.) (Signature.) No. 2. Affidavit of service of subpcena. See ante, p. 81 ; Code of Civ. Pro., § 853. {Title of the cause.) (Venue.) C. M,, being duly sworn, says, that the witnesses hereafter named respectively resided at the places where they were subpoenaed by depo- nent, as hereafter stated ; that deponent at the times and places below set forth, served the annexed subpoena personally upon the witnesses below named, by exhibiting the original subpcena to each of such wit- nesses and delivering to them each a subpoena ticket, containing the substance thereof, a copy of which is hereto annexed, and paying to them each the sum set opposite his or her name, viz. : On at , N. Y., on the day of , 18 , amount paid, $ On at , N. Y., on the day of , 18 , amount paid, $ as and for the traveling fees of such witnesses respectively, from the residence of each of said witnesses, to the place mentioned in the sub- ;po3na, and return therefrom, and one day's attendance as such witnesses. (Jurat.) (Signature.) 548 Appendix of Fokms. No. 3. Affidavit of service of ex parte order. See ante, p. 538. (^Title of the cause.) ( Venue. ) 0. M., being duly sworn, says he did at the times and places here- after named serve the annexed order personally upon Eichard Roe and Samuel Roe, known to him to be the defendants therein named, by delivering to and leaving with each personally a true copy thereof, and at the same time showing to each the annexed original order, and the signature of Hon. thereto, as follows, viz. : On Eichard Roe at , E". Y., on the day of , 188 On Samuel Roe at , N. Y., on the day of , 188 That at the time of making such service he delivered to and left with each of the persons so served a copy of the {specify the papers) upon which such order was granted. {Jurat.) {Signature.) No. 4. Affidavit of personal service. See ante, p. 516 ; Code of Civil Pro., § 796. {Title of the cause.) {Venue.) C. M., being duly sworn, says, that at the times and the places herein- after named, he being of the age of twenty-one years and over, did serve personally the annexed {specify the papers served). On at , N. Y., on the day of , 188 , On at , N. Y., on the day of , 188 , On at , N. Y., on the day of , 188 , by delivering a true copy of the same to him {or each of them) person- ally, and leaving the same with him {or each of them), and that he knows the persons so served to be the persons mentioned and de- scribed in the said {specify papers served) as defendants therein. {Jurat.) {Signature.) No. 5. Affidavit of service by mail. See ante, p. 516 ; Code of Civ. Pro., § 797. SUPEEME COURT. Abraham Colien agst. Solomon Isaacs. County of Erie, ss.: John Brown, being duly sworn, says that he is the managing clerk in the office of John Smith, the attorney for the above-named (plaint- Appendix of Forms. 549 ifi) ; that said attorney resides at (Bufialo), N. Y. Deponent further says, he did, on the (27th) day of (August), 1884, serve upon James Greenfield the attorney in the above-entitled action for the above-named (defendant, Solomon Isaacs), the notice {or other paper served), of which the annexed is a copy, by depositing the same, properly inclosed in a post-paid wrapper, in the post-oflSce at (Buffalo) aforesaid, before (three) o'clock, p. M., directed to said James Green- field, at No. 184 Prospect street, Syracuse, ]Sr. Y., that being the ad- dress within the State designated by him for that purpose upon the preceding papers in this action, and his place of residence, or the place where he then kept an ofiSce, between which places there then was and now is a regular communication by mail. Sworn and subscribed before me, ) JOHN BEOWJST. the 28th day of August, 1884. f Henet Earl, Notary Public, Erie County, N. Y. No. 6. Affidavit of service in office, no person present. See ante, p. 517; Code of Civ. Pro., § 797. {I'itle of the cause.) {Venue.) C. M., being duly sworn, says, he did, on the day of 188 , at the hour of m., serve the annexed {specify papers served), upon J. C, the attorney for the above-named (defendant), by leaving the same in the law office of said J. C., and known to me to be his Jaw office, at county of , New York, upon {specify place in office where copy paper tvas left) that being a conspicuous place in said office, there being at the time no person but deponent therein, but the same being open so as to admit of such service. (Jurat.) {Signature.) No. 7. Affidavit of service of summons in divorce. See ante, p. 67; Code of Civ. Pro., §1774. SUPEEME COUET. John Doe agst. Sarah Doe. C. M.., being duly sworn, says, that he is (18), (or more than twenty- one) years of age ; that on the day of 18 , at the of , in the county of and State of New York, he personally served the annexed summons on the above-named defendant by deliver- 550 Appendix of Foems. ing to, and leaving with her (or him) a copy thereof ; that he knew the person served to be the person mentioned and described in said summons as defendant therein (state what knowledge the affiant had of the person served being th^ defendant and proper person to le served, and how he acquired such knowledge. ) That the summons so served and the copy thereof so delivered con- tained the following words, viz. : "Action to annul a marriage" {or "action for a divorce," or "action for a separation," as the case may be) legibly written {or printed) upon its face. (Jurat.) (Signature of deponent.) No. 8. Ai&davit on motion to remove cause for the purpose of consolidation. See ante, p. 32; Code of Civ. Pro., § 818. SUPSEME COUET. Amos Smith agst. Harvey Jones. SUPEEIOE COUET OP THE CITY OP BUFPALO. Amos Smith agst. Harvey Jonea. County of , ss.: Harvey Jones, being duly sworn, says, that he is the defendant in each of the above-entitled actions, and that each of said actions is in favor of the same plaintiff against the same defendant ; that said ac- tion in the Supreme Court is brought to recover salary alleged to be due from the defendant to the plaintiff for services performed by the plaintiff during the month of January, 1884, as agent for the defend- ant; that said action in the Superior Court is brought to recover salary alleged to be due to the plaintiff for similar services performed during the month of February, 1884, under the same contract ; that the action in the Supreme Court was commenced on the 1st day of February, 1884, and an issue of fact was joined therein on the day of , 1884 ; that the action in the Superior Court was com- menced on the 1st day of March, 1884, and an issue of fact was joined therein on the day of , 1884; that the defendant by his answer has interposed the same defense to each action, viz.: that by the terms of the contract under which the services mentioned in the complaint were performed, the salary of the plaintiff was not to become due and payable until the 1st day of January, 1885 ; that deponent has fully and fairly stated his case in each action to , Appendix of Forms. 551 defendant's counsel, a counselor of this court, who resides at N. Y., and that deponent is advised by said counsel after such statement made, and verily believes, that the questions which will arise in both of said actions are substantially the same ; that since issue was joined in said actions, the defendant has offered to stipulate, and has requested the plaintiff to stipulate that said action in the Superior Court be re- moved to the Supreme Court, and that both said actions be consolidated in one, but the plaintiff has declined to enter into such stipulation. Subscribed and sworn to before me, ) HAEVBY JONES, this day of , 1884. j Ohaeles Dbwitt, Notary Public. No. 9. Affidavit to obtain an order removing a cause from the County Court to the Supreme Court. See ante, p. 38 ; Code of Civ. Pro., § 342. {Title of the cause.) {Venue.) J. A., being duly sworn, says : I. That he is one of the defendants in the above-entitled action ; that said action was brought in the County Court of the county of , for the partition of certain lands situate in said county, is at issue, and is still pending. II. That it is alleged in the complaint herein, and in deponent's answer thereto, that deponent is the owner in fee of an undivided one- fifth part of the lands described in said complaint, and that the de- fendant H. P. is also the owner of an undivided one-fifth part of such lands ; that the said H. P. has served a copy of his answer upon deponent, whereby he denies deponent's ownership of any part of said lands, and alleges that the same are owned by said defendant and his co-defend- ants, D. P., T. 8. and M. S., as tenants in common, as more fully appears by said answer ; that the issue raised by said answer as to de- ponent's title and interest in the lands described in the complaint will be tried and determined in this action. III. That on or about the 10th day of April, 1883, W. K, now the county judge of said county, recovered a judgment in the Supreme Court against said H. P. for the sum of 18,500, and before the com- mencement of this action, or the filing of the notice of the pendency thereof, caused the judgment-roll to be filed and said judgment to be entered and docketed in the office of the clerk of said county, where- upon said judgment became and still is a valid lien upon any undi- vided share or interest of said H. P. in the lands described in the complaint herein. That said W. K. is still the owner of such judg- ment, and as such is interested in the event of this action and dis- qualified from sitting as county judge upon the trial thereof. IV. That V. S., the special county judge of said county, is a brother of the plaintiff P. S., and by reason of such relationship is incapable of acting in this action. {Jurat.) {Signature.) 552 Appendix of Foems. No. 10. Affidavit to obtain order removing the cause to the Supreme Court to change the place of trial. See ante, pp. 39, 30 ; Code of Civ. Pro., §§ 269, 343. (^Title of the cause.) {Venue.} A. B., being duly sworn, says: I. That he is the defendant in the above-entitled action, and was at the time of the commencement thereof and still is a resident of the county of II. That said action was brought in the County Court of the county of , (or in the Superior Court of the city of ) to re- cover [state the object of the action). That an issue of fact was joined in said action on the day of , 1884, by the service of depo- nent's ai\pwer, which alleges in substance (here state the nature of the defense, and if the cause of action or defense arose in the county in which the trial is desired, add). That the transaction set forth in the plaintiff's complaint as his cause of action [or, set forth in de- ponent's answer as his defense to said action, or both) took place in the county of III. That deponent has fully and fairly stated the case in this action and disclosed the facts which he expects to prove in said action by each and every of the witnesses hereinafter named, to , Esq., a counselor of this court, who resides at , in the county of , and is deponent's counsel in this action ; and that the de- fendant has a good and substantial defense on the merits in said ac- tion, as after such statement made the said defendant is advised by said counsel and verily believes. IV. That (state names and places of residence of witnesses), are each and all material and necessary witnesses for the defendant on the trial of this action, as deponent is advised by his said counsel, after such statement made as aforesaid, and as deponent verily believes ; and that without the testimony of each and every of said witnesses the said defendant cannot safely proceed to the trial of this action, as after such statement made the said defendant is advised by his said counsel and verily believes. V. That defendant expects to prove the following facts by said wit- nesses, viz.: by said John Doe, that he was present at, etc. (State concisely the substance of the testimony expected from each witness separately. ) (Jurat.) (Signature of defendant.) Appendix of Foems. 553 No. 11. Affidavit on motion to consolidate actions. See ante, p. 49 ; Code of Civ. Pro,, § 817. SUPEEMB COURT. >■ Action No. 1. James Bradner agst Henry Barr and John Grant. SUPEEME COURT. James Bradner agst. )■ Action No. 3. Henry Barr and John Grant. COUNTI OF , SS. : Henry Barr, being duly sworn, says, that he is one of the defendants in each of the above-entitled actions, and that all the persons consti- tuting the several parties plaintiff and defendant are the same in each action; that said actions are brought upon two promissory notes made by defendants, under the firm name of Barr & Grant, upon the same day, but maturing at different dates, and given to plaintiff by defendants on the day said notes bear date, for the purchase-price of a quantity of cast steel that day sold to defendants by the plaintiff, with a contract of warranty as to quality ; that the action designated ISTo. 1 was com- menced on the day of , 1884, and an issue of fact was joined therein on the day of , 1884 ; that the action designated No. 3 was commenced on the day of , 1884, and an issue of fact was joined therein on the day of , 1884 ; that the defend- ants by their answers have interposed the same defense or counter- claim to both actions, viz. : a breach of the contract of warranty be- fore mentioned ; that deponent has fully and fairly stated his case in both actions to , defendant's counsel, a counselor of this court, who resides at , N. Y., and that deponent is advised by said counsel, after such statement made and verily believes, that the questions which will arise in both of said actions are substantially the same ; that since issue was joined in said actions defendants have offered to stipulate and have requested the plaintiff to stipulate that both said actions be consolidated in one ; but the plaintiff has declined to enter into such stipulation. Subscribed and sworn to before me, ) HENRY BARR. this day of , 1884. j Charles Dewitt, Notary Public. 70 554 Appendix of Fokms. No. 13. Ailidavit to change venue for convenience of witnesses. See ante, p. 44 ; Code of Civ. Pro., § 987. SUPEEMB COUET. John Doe agst. Richard Roe. County oe , ss. : Kichard Roe, being duly sworn, says : I. That he is the defendant in the above-entitled action ; that he re- sides in the in the county of and State of New York. II. That this action is brought (state the nature of the action and of the defense, and where it arose) ; that the place of trial named in the summons and complaint herein is the county of; that an issue of fact was joined herein on the day of , 18 . III. That deponent has fully and fairly stated the case in this action and disclosed the facts which he expects to prove in said action by each and every of the witnesses hereinafter named to D. M., Esq., who re- sides at , in the county of , who is a counselor of this court and defendant's counsel in this action, and that the defendant has a good and substantial defense on the merits, in said action, as, after such statement made, the said defendant is advised by said counsel, and verily believes. IV. That {state the names of the witnesses and their respective resi- dences) are each and all material and necessary witnesses for the defend- ant on the trial of this action, as, after such settlement made, the said defendant is advised by defendant's said counsel, and as deponent verily believes ; and further, that without the benefit of the testimony o'f each and every of the said witnesses the said defendant cannot safely proceed to the trial of this action, as, after such statement made, the said defendant is advised by said counsel, and as deponent believes. V. That no other or previous application for a change of the place of trial has been made, or for a stay of proceedings ; that the defendant has used due diligence in preparing this motion for the earliest practical day after issue joined. VI. That the defendant expects to prove the following facts by said witnesses, viz. : By {state the names of the witnesses, respectively, and the facts to le proved hy each.) {Jurat,) (Signature of defendant.) Appendix of Foems. 555 No. 13. Affidavit to change venue to proper county. See ante, p. 38 ; Code of Civ. Pro., §§ 985, 987. (Title of the cause.) (Venue.) Othniel Bump, being duly sworn, says : I. That he is the managing clerk in the ofiSce of Dodson & Fogg, the attorneys for the defendant in the above-entitled action. II. That said action was brought {for example, to recover damages for distraining a chattel in the county of Westchester). III. That the place of trial named in the complaint herein is the county of JSTew York. IV. That with (or before the service of ) the answer of the defend- ant a written notice, a copy of which is hereto annexed, was personally served upon the plaintiff's attorney, demanding that this action be tried in the proper county — namely, the county of Westchester ; and that the plaintiff's attorney did not serve his written consent to the change as proposed within five days after service of such demand. (Jurat.) (Signature of deponent.) No. 14. Affidavit to change venue to obtain impartial trial. See ante, p. 43 ; Code of Civ. Pro., § 987. (Title of the cause.) (Venue.) John Doe, being duly sworn, says : I. That he is the plaintiff in the above-entitled action, and resides in the village of Lowville, in the county of Lewis, and State of New York. II. That the county of Oneida was originally named in the complaint herein as the place of trial of this action ; that the place of trial was changed, on demand of the defendant, by order of the court, from the county of Oneida to the county of Lewis, as appears by a copy of said order, hereto annexed. III. That this action was brought to recover damages for a libel alleged to have been uttered in a doggerel ballad largely circulated in Lewis county, plainly implicating deponent in the crime of murder on the person of his wife ; that the answer, among other things, sets up a justification. IV. That two coroner's inquests have been held in the county of Lewis upon the subject of the alleged murder, the last of which con- tinued for many days, and was attended by a crowd of witnesses and spectators attracted by curiosity and interest, and resulted in a verdict of homicide ; that the plaintiff was committed to custody from whiclj he was released by habeas corpus in the month of May last. 556 Appendix of Foems. V. That at the sitting of the Oyer and Terminer in Lewis county, in the latter part of the same month, an attempt was made to procure an indictment for murder against deponent, which failed, but that at the ensuing session in that county in September a second presentation was made to the grand Jury, by whom a bill was found, and deponent is now under indictment for the murder of his wife. VI. That previous to the sitting of the first grand jury the defend- ant in this suit caused to be printed and circulated a pamphlet contain- ing a statement of' all the evidence taken on the second inquest before the coroner, and especially took pains to have this made public a short time before the day appointed for the assemblmg of Ihe grand jury, and stated expressly to C. H., with whom he deposited thirty copies, that he desired to have them distributed before the grand jury should meet, as they might have great mfluence on the minds of the jury, and charged the said 0. H. to give them away if they could not other- wise be disposed of ; that just previous to said meeting of the grand jury large quantities of said pamphlet were thrown into the doors of stores and houses in the village of Lowville where the grand jury met, and several hundreds were thus distributed in that place. VII. That in the county of Lewis and the adjoining counties the circumstances of this case have been freely discussed in the public pa- pers, and opinions expressed on all sides, both in condemnation and exculpation of the plaintiff in respect to the charge made against him. VIII. {State any other facts shoioing that an impartial trial cannot ie had in the county named as the place of trial. ) IX. That deponent is advised by J. C, Esq., his counsel in this case, who resides at and verily believes that he cannot have an im- partial trial of this case in the county of Lewis. {Jurat.) {Signature of deponent.') No. 15. Affidavit to oppose change of venue. See ante, p. 46 ; Code of Civ. Pro., § 987. SUPREME COURT. John Doe agst Richard Roe. County of , ss. : John Doe, being duly sworn, says : I. That he is the plaintiff in the above-entitled action ; that he re- sides in the of , in the county of and State of New York. II. That this action is brought {state ike nature of the action and of the defense). Appendix of Foemb. 557 III. That he has fully and fairly stated the case in this action and disclosed the facts which he expects to prove in said action by each of the witnesses hereinafter named, to C. B., Esq., who resides at , in the county of , who is a counselor of this court and plaint- iff's counsel in this action. IV. That {state the names of the plaintiff's witnesses and their respective residences), are each and every one of them material and necessary witnesses for the plaintiff on the trial of this action, as after such statement made, the said plaintiff is advised by his said counsel, and as deponent verily believes; and further, that without the benefit of the testimony of each and every of the said witnesses the said plaintiff cannot safely proceed to the trial of this action, as, after such statement made, the said plaintiff is advised by his said counsel and verily believes. V. That the deponent will stipulate to admit upon the trial of this action the facts which the defendant desires to prove by the witnesses {naming them). VI. That the plaintiff expects to prove the following facts by said witnesses, viz. : By {state the names of the witnesses respectively, and the facts to be proved iy each). (Jurat), {Signature of plaintiff.) No. 16. Affidavit on motion for stay of proceedings. See ante, p. 36. COUNTY COUET — OouNXT of Fulton. William S. Brown agst. Andrew J. Smith. County of Fulton, ss.: Andrew Smith, being duly sworn, says : I. That he is the defendant in the above-entitled action; that such action was commenced on the day of , 1884, and is now pending in the County Court of the county of Fulton ; that an issue of fact was joined therein on the day of , 1884, and has not been tried ; and that on the day of the plaintiff served a notice of trial herein for the next trial term of this court, appointed to be held on the day of , 1884. II. And deponent further says that on the day of , 1884, he served upon the plaintiff's attorney copy affidavits and notice of a mo- tion to be made at a Special Term of the Supreme Court, lield at , on the day of , next, for an order removing this action from 558 Appendix ok Forms. the County Court of the county of Pulton to the Supreme Court, and 9.1so changing the place of trial of said action to the county of Mont- gomery; that said motion is now pending and undetermined; that upon the joinder of issue deponent immediately proceeded to prepare such motion papers, and has used due diligence in preparing the mo- tion for the earliest practical day after issue joined ; but that deponent was unable to give the statutory notice and bring the motion to a hearing at a term of such court held before the day for which the cause was noticed for trial, as aforesaid. III. That said motion will be of no avail to deponent unless an order be made staying plaintiff's proceedings until the hearing and determina- tion thereof; that this application for such order is made in good faith, and not for the purpose of delay ; that no prior application has been made by deponent for such order {or if one has ieen made, state to tvhat court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to he shown). IV. That an affidavit of merits was, on the day of , 1884, duly filed with the clerk of the county of Pulton, and a copy thereof was on that day served upon the plaintifE's attorney. (Jwat.) (Signature.) No. 17. Affidavit to obtain examination of adverse party before trial. See ante, p. 87 ; Code of Civ. Pro., § 872. ( Title of the cause.) ( Venue.) A. B., being duly sworn, says : I. That he is one of the plaintiffs in the above-entitled action ; that he resides at , in the county of , State of New York ; that C. D., his co-plaintiff, resides at , in the county of , State of New York, that the plaintiffs have appeared in this action by E. P., their attorney, and the office address of said attorney is No. , street, in the of , county of , in this State. II. That the defendant G. H. resides at No. , street, in the (city) of , in this State, and (is now sojourning or has an office where he regularly transacts business) at [specify the particular locality) ; that the defendant I. K. resides at {specify the residence of each defendant) ; that all the defendants in this action have appeared therein by L. M., their attorney ; and (that the office address of said attorney is No. , street, in the of , in this State, as appears by the notice of retainer served herein and by the indorse- ment upon the other papers served by him in this cause, or) that said attorney resides at {specify the residence of the attorney). III. That said action is now pending in this court ; that an issue of fact was joined therein on or about the day of , and has Appendix of Fokms. 559 not been tried ; and that the place of trial specified in the summons and complaint is the county of IV. That this action is brought {state the nature oj the action) ; and that judgment demanded in the plaintiff's complaint {state the sub- stance of the judgment demanded). V. That the defendants, by their answer, interpose as a defense to said action {state the nature of the defense). VI. That the testimony of the defendant Q. H. is material and neces- sary for the plaintiffs m support of the allegations of their complaint, and as part of the evidence to be introduced on their behalf on the trial of this cause ; that they desire to take the examination of said G. H. before trial {state facts and circumstances which show that the examination is material and necessary). VII. That {state any fact affecting the time of serving the order if the case requires any special clause in the order as to service). Vlli. That no previous application has been made by the plaintiff to any court or judge for an order directing the examination of the defendant in this action {or if a prior application has been made, state to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown), (Jurat.) (Signature.) No. 18. Affidavit of authority to offer judgment. See ante, p. 61; Code of Civ. Pro., § 740. ( Title of the cause. ) (Venue.) John A. Lynde, being duly sworn, says, that he is the attorney for the defendant {or plaintiff) in this action, and that he is duly author- ized by the defendant {or plaintiff) to make the offer of judgment, hereto annexed, in behalf of such defendant {or plaintiff). (Jurat.) (Signature of attorney.) No. 19. Affidavit of acceptance of offer of judgment. See ante, p. 63; Code of Civ. Pro., §§ 738, 739. (Title of the cause.) (Venue.) A. B., being duly sworn, says, that he is the attorney for the plaint- iff m the above-entitled action; that on the day of , 1884, and before the trial of this action, the defendant above named served upon deponent an offer to allow judgment to be taken against him for 560 Appendix of FoeMs. the sum of ($530), with costs ; that on the day of , 1884, deponent served upon the attorney for the defendant a written notice that the plaintiff accepted such offer of judgment, a copy of which notice is hereto annexed. {Jurat.) (Signature.) No. 20 Affidavit of authority to accept ofier of judgment. See ante, p. 62; Code of Civ. Pro., § 740. ( Title of the cause . ) ( Venue. ) A. B., being duly sworn, says, that he is the attorney for the plaint- iff in the above-entitled action, and that he is duly authorized by the plaintiff to make in his behalf the acceptance subscribed by deponent and hereto annexed. (Jurat.) {Signature.) No. 21. Affidavit on motion for trial of specific questions of fact by a jury. See ante, p. 63. ( Title of the cause. ) ( Venue. ) A. B., being duly sworn, says, that he is one of the (defendants) in the above-entitled action ; that said action is brought [state object of the action) ; that an issue of fact was joined therein as to all the de- fendants (who have appeared and are not in default) on the day of , 1884, and that ten days have not elapsed since the joinder of issue as aforesaid. {Jurat.) (Signature.) No. 23. Affidavit to obtain an order referring the issues. See a7ite, p. 69. SUPKBi¥E COUET. James GrifBtlis agst. William De Forest. County of , ss. : James Griffiths, being duly sworn, says : I. That he is the plaintiff in the above-entitled action and that an issue of fact has been joined therein. Appendix of Foems. 561 II. That said action is brought to recover for services rendered by deponent for the defendant as his agent in the sale of county rights to manufacture and vend a certain patented device, and also for moneys paid, laid out, and expended by deponent for the defendant, at his re- quest. III. That the defendant by his answer admits the existence of the agency, but denies that services were rendered by deponent to the ex- tent and of the value set forth in the complaint; and also sets up a counter-claim for goods alleged to have been sold and delivered to de- ponent by the defendant during the times mentioned in the complaint, which counter-claim is put in issue by the reply herein. IV. That the trial of the action will require the examination of a long account on the side of both plaintiff and defendant covering a period of over years ; that the account of the plaintiff consists of more than items; and the defendant's demand as set forth in the bill of particulars served herein consists of more than items. {Jurat.) {Signature.) No. 23. Affidavit to oppose a reference of the issues. See ante, p. 71. {Title of the cause.) {Venue.) Y. Z. , being duly sworn, says, that he is the defendant in the above-en- titled action ; and that said action is brought, as appears from plaintiff's complaint, to recover for work done and services rendered by the plaint- iff for deponent, and for moneys paid, laid out and expended by plaintiff for deponent at his request. That issue has been joined in said action ; that the answer of depo- nent admits that the plaintiff performed the work and rendered the services mentioned in the complaint, and that such work and services were of the value therein stated ; and also admits upon information and belief that the plaintiff paid, laid out, and expended the several sums of money at the times and to the amount stated in the complaint, but denies that such work was done or services rendered or money paid, laid out or expended for deponent, or at his request, and alleges that such work was done and services rendered under a written contract, executed by the plaintiff, deponent, and one J. D., now deceased, under Iheir hands and seals, whereby deponent covenanted on his part to con- vey to such persons as plaintiff might designate the right to manufac- ture and sell in certain localities, a certain device, patented by deponent, and plaintiff on his part covenanted to sell such county rights and account for and deliver the proceeds of such sales to said J. D., who covenanted on his part to make all necessary advances to the plaintiff for his expenses, and to pay to him at stated times for his services in making such sales, a certain per cent of the gross receipts, and to pay over to deponent a portion of the remainder according to an agreement entered into between deponent and said J. D. 71 562 Appendix of FouMa. That the counter-claim set up in deponent's answer consists of a bill of goods sold by deponent to the plaintifE at one time and as one trans- action. And deponent further says that he has fully and fairly stated the case to his counsel, , who resides at , N. Y., and that he is advised by his said counsel after such statement made, and verily be- lieves that the trial of the issues joined in this action will not require the examination of the long account, but will require the decision of difficult questions of law ; that a construction of the contract set forth in deponent's answer will be required to determine the rights or liabili- ties of the parties, and will determine all the issues in this action, ex- cept the issue raised by the reply to deponent's counter-claim ; and that all the questions of fact involved in the issues can be tried at the Circuit in hours. {Jurat.) {Signature.) 'No. 24. Affidavit to obtain new hearing after trial of specific questions by a referee. See ante, p. 376 ; Code of Civ. Pro., § 1004. (,Title of the cause.) ( Venue.) Y. Z., being duly sworn, says, that he is the (defendant) in the above- entitled action ; that said action is brought (siate the object of the ac- tion) ; that the defense interposed {state the nature of the defense) ; that one of questions of fact involved in the issue of said action {state the question or qtiestions referred) ; that by an order of this court, made in this action on the day of , 1884, it was re- ferred to , Esq., of , counselor at law, to report his find- ings upon said question of fact; that on the day of , 1884, a hearing was had before said referee, who, after taking the usual oath, proceeded to take testimony upon the matter so referred, and on the day of , 1884, filed his report in writing in the office of the clerk of the county of ; that notice of the filing of such report was served upon deponent's attorney on the day of , 1884 ; that within eight days thereafter deponent's attorney filed exceptions to the report in the oflEice of said clerk and caused a copy thereof to be served upon the attorney for the plaintiff. And deponent further says, that there are issues of fact in this ac- tion, not embraced in said reference, which have not been tried ; and that no motion for final judgment herein has been noticed or heard. And deponent further says, that on the hearing before said referee {set forth the erroneous proceedings or matters relied upon as a ground for a new hearing). (Jurat.) iSignature.) Appendix op Foems. 563 No. 25. General affidavit to obtain a postponenxent of a trial. See ante, p. 155. CTitle of the cause.) (_Venue.) Y. Z., being duly sworn, says, that he is the defendant in the above- entitled, action ; that said action was commenced on the day of 1883 ; that issue was joined therein on the day of , 1884; and that it was noticed for trial by the plaintiff on the day following. That deponent has fully and fairly stated the case to , his counsel, who resides at , N. Y., and the facts which he expects to prove by E. F., who resides at , in the county of ; and that deponent is advised by his said counsel, after such statement made, and verily believes, that the said E. F. is a material witness for deponent, and that without the testimony of said E. F. deponent can- not safely proceed with the trial of this cause. And deponent further says, that on the day of , 1884, he went to , where said E. F. resides, for the purpose of subpoe- naing him as a witness in this case, and was there informed by the wife of said E. F. and others that the said E. F. had gone to Lincoln, Nebraska, on business, and was expected to return about the day of , but not before ; that deponent thereupon wrote to said E. F., at Lincoln aforesaid, in respect to the probable date of his return, and received an answer from him, postmarked at Lincoln, and dated , stating that he should complete his business and start for home about the of next month. And deponent believes that he will be able to procure the attendance of the said B. F. as a wit- ness in this cause at the next Circuit Court appointed to be held in this county on the day of , 1884. XJi^rat.) (.Signature.) No. 26. Special affidavit on motion to postpone a trial. See ante, p. 155. ( Title of the cause. ) (Venue.) Y. Z., being duly sworn, says, that he is the defendant in the above- entitled action ; that issue was joined therein on the day of , 1884 ; and that the cause was duly noticed for trial by the plaintiff at this Circuit on the day of , 1884. That this action is brought to recover {state the object of the action). That the defense interposed thereto is {state the nature of the defense). That deponent has fully and fairly stated the case in this action to , Esq., who is a counselor of this court, and deponent's counsel in 564 Appendix of Foems. this action, who resides at , and that deponent has a good and substantial defense upon the merits thereof, as he is advised by his said counsel, after such statement made as aforesaid, and verily believes. That he has also fully and fairly stated to his said counsel the facts which he expects to prove by E. P., on the trial of this cause, and that the said E. F. is a material witness for deponent on the trial of this cause, and without his testimony he cannot safely proceed to the trial thereof, as he is advised by his said counsel after such statement made, and verily believes. That deponent expects to prove by the said B. F. the following facta : {state the substance of the expected testimony). That deponent has used due diligence to procure the attendance of the said E. F. at this term as a witness for deponent on the trial of this cause, but has been unable to secure his attendance ; that deponent {state what has heen dune in the matter of securing the attendance of the witness and the cause of failure). That deponent confidently believes that he will be able to procure the attendance of the said B. P. as a witness herein, at the next Circuit appointed to be held on the day of , 1884 ; that {state the reasons for such belief). That this application for a postponement of the trial of this cause is made in good faith, and not for the purpose of delay. {Jurat.) {Signature.) No. 27. Affidavit for attachment against witness. See ante, p. 80. ( Title of the cause. {Venue.) Eichard Eoe, being duly sworn, says, he is the defendant in the above- entitled action ; that one E. M., of the of , county of , was duly subpoenaed to attend before the justices of the Supreme Court, or some one of them at a Circuit Court in the above-entitled action, as a witness on behalf of the defendant in said action, on the day of , 188 , as appears in the proof of service of the annexed sub- poena ; and that said E. M. has failed and neglected to attend the said Circuit Court, as required in obedience to such subpoena, and is not in attendance at or upon said court ; that no just cause has appeared for such default ; that the testimony of said witness is material and necessary for the defendant on the trial of said action, without the benefit of whose testimony the said defendant cannot safely proceed to the trial of this action, as he is advised by H. D., Esq., the said de- fendant's counsel herein, who resides at , after a full and fair statement and disclosure to him of what is expected to be proved by said witness and as deponent verily believes. Wherefore, deponent asks that a warrant issue to the sheriff of county, to apprehend and bring said witness before the said Circuit Court, where his attendance is required. {Jurat.) {Signature.) Appendix of Fobms. 565 No. 28. Affidavit to open default on trial. See ante, p. 158. SUPEEME COUET. John Doe agst. Richard Roe. COTJKTT OF , SS. : J. 0., being duly sworn, says, that he is the attorney for the defend- ant in the above-entitled action. That this action was brought to recover damages for a personal injury to the plaintifE, alleged to have been sustained through the negligence of the defendant. That the de- fendant interposed a defense of contributory negligence on the part of the plaintifE. That one E. C, a resident of the State of Connecticut, the only eye-witness of the accident resulting in the injury complained of, an important and necessary witness for the defendant on the trial of this action, was voluntarily present as a witness at the January Cir- cuib in 1883, but this cause, although noticed for that Circuit, was not tried. That at the Circuit in the succeeding March this cause was tried, and the said E. C. was again voluntarily present, and wassworn as a witness, but the trial resulted in a disagreement of the jury. That on said trial the said B. C. testified (siate substance of testimony suffi- cient to show materiality). That at the last-mentioned Circuit after the disagreement of the jury the said E. C. promised and agreed to attend as a witness at the Circuit in the succeeding June, and deponent relied on his promise and expected his attendance. That on the first day of the said June Circuit this cause was set down for trial on Thurs- day, and defendant apprised the said E. C. of that fact by telegraph, and requested his attendance as a witness on that day. That the said E. C. then telegraphed to deponent, informing him for the first time that he could not attend the said Circuit. That these facts were presented to the trial judge, and a motion was made for a new trial, which motion was denied. That on account of the absence of the said witness, the defendant was unable to make any defense to said action. That an inquest was then taken, and judgment entered in favor of the plaintiff for the sum of $10,000. {Jurat.) (Signature of deponent.) N"o. 29. Affidavit for a commission to examine a witness without the State on interrogatories. See ante, p. 99 ; Code of Civ. Pro., § 887. (Title of the cause.) A. B., being duly sworn. Bays, that he is the (defendant) in the above- entitled action ; that the place of trial specified in the summons and 566 Appendix of Foems. complaint therein is the county of ; that an issue of fact was joined therein on the day of , 188 , and has not been tried ; that the testimony of J. K. is material to deponent in the de- fense of this action ; that the said J. K. is not a resident of or within this State, but resides at , in the State of ; that deponent has fully and fairly stated the case to , deponent's counsel in this action, who resides at , and that deponent is advised by his said counsel, and verily believes that he has a good and substantial defense upon the merits ; that deponent has also stated to his said counsel the facts which he expects to prove by the said J. K., and that deponent is advised by his said counsel after such statement made, and verily believes, that the testimony of the said J. K. is material to deponent in the defense of this action. {Jurat.) (Signature.) ■ No. 30. Affidavit to obtain order requiring production of original record at trial. See ante, p. 85 ; Code of Civ. Pro., § 866. {Title of the caitse.) { Venue.) A. B., being duly sworn, says: I. That he is the in the above-entitled action ; that said action was brought {state the nature of the action), and that an issue of fact was joined therein on the day of , 1884, and is still unde- termined. II. That this action has been noticed for trial at a term of this court (or at a hearing before the referee herein), to be held on the day of , 1884, at , in the county of III. That upon the trial of this action it will be necessary for the to read in evidence the record of {specify the record) to show {specify the purpose for which it is to be introduced). IV. {Specify the reasons why the production of the original record instead of a transcript thereof is necessary). V. That no prior application has been made for the production of said record upon the trial of this action (or if a prior application has been made, state the circumstances and the disposition made thereof, etc.). {Jurat.) {Signature.) No. 31. Affidavit to obtain order for the production of books, etc., at the trial. See ante, p. 85 ; Code of Civ. Pro., § 867. {Title of the cause.) {Venue.) A. B., being duly sworn, says: I. That he is the in the above-entitled action ; that said action was brought {specify the nature of the action), and that an issue of Appendix of Foems. 567 fact was joined in said action on the day of , 1884, and remains undetermined. II. That this action has been noticed for trial at a term of this court {or at a hearing before the referee herein) on the day of , 1884, at , in the county of III. That it will be necessary for the to read in evidence upon the trial of this action a certain book of account (describing it) for the purpose of showing that (specify the purpose for which it is to he read in evidence). IV. That deponent is informed and verily believes that said book of account is now in the possession of V. That no prior application has been made for the production of said book of account upon the trial of this action {or if a prior appli- cation has been made, state the circumstances, the disposition made thereof, etc.). (Jurat.) {Signature.) No. 33. Affidavit as to disbursements. See ante, p. 430 ; Code of Civ. Pro. , § 3367. {Venv^.) D. M., being duly sworn, says, that he is the attorney for the (plaint- iff) herein; that the foregoing disbursements, except witness' fees, have been actually made and incurred on the part of said (plaintiff) except those hereafter to be incurred, and those deponent believes to be cor- rectly stated. That the cause was necessarily on the calendar the term above named , and was not tried, or was postponed, thereat, by order of the court. (Jurat.) (Signature.) No. 33. Affidavit as to vritness. See ante, p. 431 ; Code of Civ. Pro., § 3267. Venue.) A. B., being duly sworn, says, he is the (plaintiff) in this action, which was at issue and necessarily upon the calendar for trial at the several Circuits held in and for the county of , at the court-house in the of ,viz.: One commenced on the day of , 18 ; one commenced on the day of , 18 ; that the cause (was referred to J. C, Esq., of , ; and) was brought to trial before at ; that each of the persons named in Schedule A, hereunto annexed, which is made a part thereof, attended the several Circuits (or hearings) therein named pursuant to a subpoena, or upon special request of this (plaintiff) as a witness for the (plaintiff) 568 Appendix of Forms. the niimber of days set opposite their respective names therein ; that the residence of said witnesses respectively, the distance therefrom, according to the usually traveled route, to the said Circuit {or Special Term or hearing) and the number of miles they severally traveled as such witnesses, according to the usually traveled route, for the purpose of going to the place of trial and returning therefrom, at said court- house (or place of hearing) respectively, are correctly stated and set forth in said Schedule A., opposite their respective names ; that each and every of said persons named in said Schedule A was a necessary and material witness on the part of the (plaintiff) on the trial of this action. {Jurat.) (Signature.) No. 34. Affidavit to obtain preference of cause on calendar. See ante, p. 132; Code of Civ. Pro., § 793. SUPEEME COURT. John Doe agst. Drovera' Bank. County of , ss. : John Doe, being duly sworn, says: I. That he is the plaintiff in the above-entitled cause ; that an issue of fact has been joined herein and has not been tried. II. That the defendant is a national bank, organized under the laws of the United States, and issues bank notes to circulate as money. JOHN DOE. Subscribed and sworn to before me, ) this day of May, 1884. j Haevet Jones, Notary Ptcilic. Appendix of Foems. 569 PETITIONS. ]Sro. 35. Petition for a writ of habeas corpus ad testificandum. See ante, p. 81 ; Code of Civ. Pro., § 2013. SUPEBME COURT. Tlie People of the State of New Tork, on the relation of Richard Roe, agst. John Latour, Sheriff of the County of To the Supreme Court of the State of New York: The petition of Richard Roe respectfully shows : I. That an action has been commenced in this court, and is now pending, in which John Doe is plaintiff, and your petitioner is defend- ant ; that an issue of fact has been joined therein and has not been tried ; that the place of trial mentioned in the summons and com- plaint therein is the county of ; and that said action has been noticed for trial by both parties at the Circuit appointed to be held in said county on the day of , 188 . II. That said action is brought {date the nature of the action). III. That your petitioner has fully and fairly stated the case, and what he expects to prove by one John Stiles, to his counsel, , Esq., who resides at , and that the testimony of said Stiles is material and necessary to your petitioner on the trial of said action, as your petitioner is advised by his said counsel, after such statement made, and verily believes. IV. That the said John Stiles is confined at , in the county of , in the common jail of said county, in custody of the defend- ant herein. V. That said prisoner is (not) so confined under a sentence for a felony (but is held under an execution against the person issued upon a judgment recovered against him in a civil action). VI. That no prior application has been made for the relief men- tioned in the prayer of this petition. Wherefore your petitioner prays that a writ of habeas corpus issue out of and under the seal of this court, directed to the defendant herein, for the purpose of bringing the said John Stiles before this court at the Circuit to be held at , on the day of , 188 , to testify as a witness, on behalf of your petitioner, in the action there and then to be tried. {Date.) (Signature.) 72 570 Appendix of Foems. State of New York, ) . Oouiity of , ) '" Richard Koe, being duly sworn, says, that he is the petitioner above named; that the foregoing petition is true of his own Jinowledge, ex- cept as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. {Jurat.) (Signature.) No. 36. Petition for a discovery and inspection of papers. See ante, p. 119 ; Code of Civ. Pro., § 805. (Title of the cause.) To the Supreme Court of the State of New York : The petition of A. B. respectfully shows to the court: I. That he is the plaintiff in the above-entitled action. II. That this action is brought by your petitioner as the executor of John Doe, deceased, to recover a balance due to your petitioner as such executor upon a contract, in writing, entered into between said tes- tator and the defendant herein, whereby said testator covenanted to build and complete, in good and workmanlike manner, according to certain specifications thereto attached, a dwelling-house upon lands of the defendant, who, upon his part, covenanted to pay said testator therefor the sum of $3,000 upon the completion of said house accord- ing to said contract ; that the complaint in this action alleges that the said testator duly performed all the conditions upon his part. III. That the defendant by his answer denies that said testator kept and performed his covenants in said contract, and alleges that said tes- tator refused and neglected to complete said house in a good and work- manlike manner, according to said specifications, and that defendant paid to said testator the full value of the work, labor and material ac- tually expended upon the building in said contract mentioned, IV. That said specifications are not in the possession or under the control of your petitioner, but are in the custody of the defendant, who has refused, and still refuses, to permit your petitioner to inspect the same or to take a copy thereof ; that said specifications contain a detailed statement of the several matters and things which said testator covenanted to observe and perform ; that your petitioner has no copy thereof ; that he desires information as to the details of the work which said testator contracted to perform, and that an inspection and copy of said specifications are material and necessary in order to enable your petitioner to prepare for trial, and to enable him to establish thereon the due performance alleged in his complaint herein. V. That no other application for the relief herein sought has been made by your petitioner. Appendix of Foems. 571 Wherefore your petitioner prays that an order may be made requir- ing said defendant to allow your petitioner to inspect and take a copy of said specifications, or in default thereof, that the defendant show cause before this court at a time and place, and upon a notice in said order specified, why your petitioner should not have such relief ; and that your petitioner have such further or other order or relief as the court may grant him in the premises. {Date.) {Signature of petitioner.) State of New York, ) . County of , \ " A. B., being duly sworn, says, that he is the petitioner above named ; that the foregoing petition is true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. {Jurat. ) {Signature. ) STIPULATIONS. No. 37. Stipulation to remove a cause from the Supreme Court to a Superior City Court. See ante, p. 33; Code of Civ. Pro., § 374. SUPREME COURT — County of Eeie. Alexander Campbell agst. Archibald McDonald. It is hereby stipulated between the attorneys for the parties to this action that said action be removed from the Supreme Court to the Superior Court of Buffalo, and that an order to that effect may be obtained and entered by either party without further notice to the other. {Date.) {Signatures of the attorneys.) No. 38. Stipulation to refer cause. See ante, p. 67; Code of Civ. Pro., § 1011. (TOZe of the cause.) It is hereby stipulated that the above-entitled cause, and all the is- sues therein, be referred to J. C, Esq., counselor at law, as sole ref- eree, to hear and determine the same.* {Date.) {Signatures of respective attorneys.) 572 Appendix of Foems. No. 39. Stipulation to refer limited to particular referee. {As in above to *, then add), and that in case said referee refuses to serve, or a new trial is granted, no other referee shall be appointed. {Late.) {Signatures ofrespeoUve attorney a.) No. 40. Stipulation to try cause elsewhere than at court-house. See ante, p. 34 ; Code of Civ. Pro., § 37. SUPREME COURT — County of John Doe agst. Richard Roe. It is hereby stipulated and agreed that the above-entitled cause shall be tried at {specify the place). (_Date.) {Signature of plaintiff's attorney.) {.Signature of defendant's attorney.) I hereby consent that this cause be tried at the place above desig- nated. {Signature of the judge who is to try the cause.) No. 41. Stipulation for an order to take depositions. See ante, p. 110 ; Code of Civ. Pro., § 908. {Title of the cause.) It is hereby stipulated by the attorneys for the respective parties to this action that an order may be entered therein by the clerk of the county of , upon the filing of this stipulation, without further notice', directing that the depositions of any witness who may be pro- duced by either party be taken before Hon. , of the of , in the State of , upon oral questions to be put to the wit- ness when he is produced ; that said depositions be taken within days from the date of said order ; that days' notice in writing of the time and place of taking such depositions be given by the to the attorney for the ; that the said insert, word for Appendix op Foems. 573 word, in the deposition of each witness produced before him, any and all questions propounded to the witness and the answers thereto; that any and all objections to such questions or answers shall be taken upon such examination and noted in the depositions, and that all objections not so taken shall be deemed waiyed ; that the depositions, properly certified, be returned by mail to (or such other directions as to the execution and return of the order and deposition as the parties may lawfully agree upon). (Date.) (Signatures.) No. 42. Stipulation that an open commission issue. See ante, p. 110 ; Code of Cir. Pro., § 908. (Title of the cause.) It is hereby stipulated by the attorneys for the respective parties to this action, that an order may be entered therein by the clerk upon the filing of this stipulation, without other notice, directing that an open commission issue herein, directed to , of , in the State of , authorizing him to examine any witness who may be pro- duced by either party, on or before the day of , 1884, upon oral questions to be put to the witness when he is produced ; to take and certify the deposition of each witness so examined; and to return the same, and the commission, immediately after the expiration of the time limited for the production of the witnesses, according to the direc- tions given in or with the commission, and the directions hereinafter specified. (And it is further stipulated that said commissioner shall insert, word for word, in the deposition of each witness taken before him under said commission, any and all questions propounded to the witness and his answer or answers thereto ; and that any and all ob- jections to said questions and answers shall be specifically taken upon the examination and noted in the deposition, or shall be deemed waived ; that said commission and depositions be returned by mail to , or such other special direction as to the execution, return or custody of the cormnission and depositions as the parties desire.) (Date.) (Signatures.) No. 43. Stipulation that the deposition of a 'witness be taken ■within the State. See ante, p. 95; Code of Civ. Pro., § 879. ( Title of the cause.) It is hereby stipulated hj the attorneys for the respective parties to this action, that the deposition of be taken orally {or upon the 574 Appendix of Foems. interrogatories Iiereto annexed) before Hon. , county judge of county, [or before , of , counselor at law, as referee,) at the oflBce of said judge (or referee) in the of , on the day of , 188 , at o'clock in the noon. (Date.) (Signatures.) No. 44. Stipulation that commission issue to examine a witness without the State upon interrogatories. See ante, p. 110; Code of Civ. Pro., § 908. (Title of the cause.) It is hereby stipulated by the attorneys for the several parties to this action, that an order may be entered therein by the clerk of the county of , upon the filing of this stipulation and without other notice, directing that a commission issue to {name the commissioner) of , in the State of , authorizing him to examine (name the witnesses) on oath upon the interrogatories to be thereto annexed ; to take and certify the deposition of each of said witnesses; and to return the same and such commission according to the directions in or therewith given. And it is hereby further stipulated that the interrogatories and cross- interrogatories attached to said commission shall be in words and form as follows : Interrogatories to be propounded to the witness First, etc. {stating interrogatories as settled hy the parties). (Date.) (Signatures.) OFFEKS. No. 45. Offer to liquidate damages. See ante, p. 59 ; Code of Civ. Pro., § 736. SUPEEMB GOUET. Harvey Chann agst. Oscar Duclos. Sir — Please take notice, that the defendant hereby offers {to stip- ulate) that if the defendant fails in his defense herein, and damages are awarded to the plaintiflFon the trial of this action, such damages may be assessed at the sum of ($300). (Date.) Yours, etc., B. D., Defendant's Attorney. (Office address.) To 0, H., Esq., Plaintiff's Attorney. Appendix of Foems. 575 No. 46. Offer of judgment by plaintiff. See ante, p. 59 ; Code of Civ. Pro., § 739. {Title of the cause.) The above-named plaintiflf hereby ofEers to allow judgment to be taken * against him in this action for the sum of ($40), with costs. (Date.) (Signature of plaintiff or his attorney.) To J. B., Esq., Attorney for the Defendant, No. 47. Offer of judgment by plaintiff — another form. See ante, p. 60 ; Code of Civ. Pro., § 739. (^As in preceding form to* ), in this action against the defendant A. B., for the sum of ( $38), and against the plaintiff for costs. (Date.) (Signature of plaintiff or his attorney.) To F. B., Esq., Attorney for the Defendant. No. 48. Offer of judgment by the defendant. See ante, p. 60 ; Code of Civ. Pro., § 738. (Title of the cause.) The above-named defendant {or the defendant A. B., naming Mm), hereby offers to allow judgment to be taken against him in this action for the sum of ($530), with costs. (Date.) (Signature of defendant or his attorney.) To C. D., Esq., Attorney for the Plaintiff. NOTICES. No. 49. Notice of trial — General. See ante, p. 136 ; Code of Civ. Pro., § 977. ( Title of the cause . ) giE — Take notice, that this action will be brought to trial at the 576 Appendix of Forms. next of this court to be held at the court-house in the of , in the county of , on the day of > 188 . Dated the day of , 188 . Yours, etc., A. B. , Attorney for ( Office address.') To C. D., Esq., Attorney for the No. 50, Notice of trial for defendant. See ante, p. 126 ; Code of Civ. Pro., § 977. {Title of the cause.) To A. B., Esq., Attorney for the Plaintiff: SiE — Take notice, that the above cause will be brought to trial at the next Circuit Court appointed to be held in and for the county of , at the (court-house) in the of , on the day of , 188 , and that a motion will be then and there made for a dismissal of the complaint, with costs. Dated the day of , 188 . Yours, etc., 0. D., Attorney for the Defendant. {Offi^ce address.) No. 51. Notice of trial for the plaintiff. See ante, p. 126 ; Code of Civ. Pro., § 977. {Title of the cause.) To C. D., Esq., Attorney for the Defendant: Sir — Take notice, that the above cause will be brought to trial and an inquest taken therein, at the next Circuit Court appointed to be held in and for the county of , at the (court-house) in the of , on the day of , 188 . Dated the day of , 188 . Yours, etc., A. B., Attorney for the Plaintiff. {Office address.) Appendix of Fokms. 577 No. 53. Notice fixing time and place of hearing before a referee. ( Tith of {he cause. ) Please take notice, that I hereby fix and appoint the day of , 1884, as the time, and the ofiSce of , at , as the place of hearing of the above-entitled action. Yours, etc., E. P., Referee. To A. B., Esq., Attorney for the Plaintiff. To C. D., Esq., Attorney for the Defendant. No. 53. Notice of hearing before referee. See ante, p. 126 ; Code of Civ. Pro., § 1018. (_Title of the cause.) Sir — Take notice, that this cause will be brought to trial before , Esq., the referee herein, on the day of , 18 , at o'clock in the noon, at {state the place of hearing). {Date.) Yours, etc., D. M., Attorney for the {Office address.) To B. H., Esq., Attorney for the No. 54. Notice countermanding notice of trial. See ante, p. 127. {Title of the cause.) Sir — Please take notice, that the (plaintiff) hereby countermands the notice of trial of this action at the Circuit Court, dated the day of , 18 , and heretofore served by him upon you. (Bate.) {Signature of plaintifTs attorney.) To E. B., Esq., Attorney for the Defendant. 73 578 Appendix of Foems. No. 55. Note of issue. Seo ante, p. 128 ; Code of Civ. Pro., § 977. SUPREME COUET. John Doe agst. Richard Eoe. Issue of fact (or law). Triable by a jury {or by the courb without a jury). Date of issue (September 11, 1884). A. B., Attorney for the Plaintiff. 0. D., Attorney for the Defendant. No. 56. Notice of abandonment of part of claim in replevin. See ante, p. 125 ; Code of Civ. Pro., § 1719. {Title of the cause.) SiE — Please take notice, that the plaintifE abandons so much of his claim to the chattels specified iu his complaint in this action as re- lates to the chattels, hereinafter specified, which have not been, replevied under the requisition herein, namely [specify the chattels). (Date.) Yours, etc., E. F., Plaintiff's Attorney. (Office address.) To A. B., Esq., Defendant's Attorney. No. 57. Notice that defendant demands judgment for return of chattel replevied, etc. See ante, p. 125 ; Code of Civ. Pro., § 1735. (Title of the cause.) Sir — Please take notice, that the defendant demands judgment in this action for the return of the {describe the chattel), replevied herein Appendix of Foems. 579 and delivered to the plaintiff (or to , naming the perso7i), or for its value, with dollars damages for the detention thereof. {Date.) Yours, etc., D. C, Defendant's Attorney. {Office address.) To A.B., Esq., Plaintiff's Attorney. No. 58. Notice to creditors to appear and prove liens, etc. See ante, p. 307; Code of Oiv. Pro., § 1563. ( Title of the caiise. ) In pursuance of an order made in this action on the 16th day of July, 1884, and of the provisions of section 1562 of the Code of Civil Procedure, notice is hereby given to each person not a party to this action, who, on the said 16th day of July, 1884, had a lien upon any undivided share or interest in the real property hereinafter described, to appear before the undersigned, a referee duly appointed by said order, at his office at , in the of , on or before the day of , 1884, to prove his lien, and the amount due or to become due to him by reason thereof. The real property involved in this action is described in the com- plaint as follows : {insert a description of the lands). {Date.) {Signature, Referee.) No. 59. Notice of acceptance of offer to liquidate damages. See ante, p. 59 ; Code of Civ. Pro., § 736. {Title of the cause.) Sib — Please take notice, that the plaintiff accepts the offer, bearing date the day of , 188 , made on behalf of the defendant herein, that if the defendant fails in his defense, and damages are awarded to the plaintiff on the trial of this action, such damages may be assessed at the sum of (1300). {Date.) Yours, etc., 0. H., Plaintiff^s Attorney. { Office address. ) To E. D., Esq., Defendant's Attorney. 580 Appendix of Foems. No. 60. Notice of acceptance of offer of judgment. See ante, p. Gl ; Code of Civ. Pro., §§ 738, 739. {Title of the cause.) Sir — Please take notice, that the plaintiff accepts the offer of the defendant, dated the day of , 1884, to allow judgment to be taken against him in this action for the sum of (8530), with costs. (Date.) (Signature of plaintiff or his attorney.) To F. B., Esq., Attorney for Defendant, No. 61. Notice of payment of money into court. See ante, p. 58 ; Code of Civ. Pro., § 732. SUPEEME COUET. John Doe agst. Richard Roe. Sir — Please take notice, that the sum of ($250.21) heretofore ten- dered by the defendant to the plaintiff for his costs and damages herein was, on the day , 1864, duly paid into court in this cause. (Date.) Yours, etc., Y. Z., Attorney for Defendant. (^Office address.) To A. B., Esq., Attorney for Plaintiff. No. 62. Notice to produce papers at trial. See ante, p. 116. ( Title of the cause.) Sir — Please take notice, that you are hereby required to produoie, upon the trial of this action {describe the papers to be produced) and that in case of your failure so to do, the (plaintiff) will give secondary evidence of the contents thereof. (Date.) (Signature of plaintiff^s attorney.) To EiCHARD EoE, Defendant, and to E. D., Attorney for the Defendant. Appendix of Foems. 581 No. 63. Notice of time of attending to strike a jury. See ante, p. 77 ; Code of Civ. Pro., § 1064. SUPREME COURT. Ambrose Borst 1 agst. \ Caleb Duncan. j Sir — Please take notice, that 1 shall attend, on behalf of the above named (defendant) before the clerk of the county of (or the com- missioner of jurors ; or the clerk of this court), on the day of ,18 , at his office in the of , county of , at o'clock in the noon, for the purpose of having the jury struck which has been ordered m this cause. {Date.) Yours, etc., H. M., Defendant's Attorney. {Office and post-office address.) To 0. G., Esq., Plaintiff's Attorney. No. 64. Notice of election to end reference. See a7ite, p. 228 ,• Code of Civ. Pro., § 1019. {Title of the cause.) SiK — Please take notice, that the (defendant) hereby elects to end the reference of this action to J. C, Esq., he having failed to deliver or file his report within sixty days from the time when the cause was finally submitted. {Date.) (Signature of defendant's attorney.) To A. N., Esq., Attorney for the Plaintiff. No. 65. Notice that cause will be moved for trial on particular day of term. See ajite, p. 132; Code of Civ. Pro., § 791, subds. 1 and 2. (7We of the cause.) Sir — Please take notice, that the above-entitled cause will be moved for trial on the (first) day of the Circuit term of this court, commencing on the day of , 1884. Yours, etc., A. B., Attorney for the Plaintiff. ( Office and post-office address ) To C. D., Esq., Attorney for the Defendant. 582 Appendix of Forms. No. 66. Notice of settlement of interrogatories- See ante, p. 104 ; Code of Civ. Pro., § 891. ( Title of the cause. ) Sir — Please take notice, that the paper hereto annexed is a copy of the interrogatories proposed to be propounded to the witness, J. K., on his examination in behalf of the (plaintiff) under the commission issued herein ; and that said interrogatories will be presented to Hon. , for settlement, on the day of , 188 ,'at 10 o'clock in the forenoon, at his office in the (city) of {Date.) Yours, etc., {Signature and address.) To , Esq., Attorney for No. 67. Notice of filing consent to accept a gross sum in lieu of dower. See ante, p. 337; Code of Civ. Pro., § 1617. {Title of the cause.) Please take notice, that the consent to accept a gross sum in full satisfaction and discharge of the plaintiff's right of dower in the real property described in the complaint in this action, of which the within is a copy, was, on the day of , 188 , filed in the office of the clerk of the county of {Date.) {Signature.) {Address.) No. 68. Notice of entry of judgment. See ante, p. 483 ; Code of Civ. Pro., §§ 1340, 1351. ( Title of the cause. ) Sir — Please take notice, that a judgment in this action, of which the within is a copy, was, on the day of , 1884, entered (and the judgment-roll in this action filed) in the office of the clerk of (this court in) the county of {Date.) {Signature and office address of attorney .) To , Attorney fur the Appendix of Foems. 583 No. 09. Notice of taxation or retaxation of costs. See ante, p. 427 ; Code of Civ. Pro., §§ 3363, 3264. {Title of ike cause.) Sia — Please take notice, that the annexed {or the within) isacopy of the items of the (plaintiff's) costs and disbursements in this action, and that the same will be taxed {or retaxed, as the case 7nay be), hy the clerk of the county of {or of this court), at his ofiBce in , on the day of , 18 , at o'clock in the noon. (Date.) Yours, etc., H. B., Plaintif-'s Attorney. {Office and post-office address.) To 0. D. , Esq., Defendant's Attorney, NOTICES OF MOTION. No. 70. Notice of motion — General. See ante, p. 513. {Title of the cause.) Sir — Take notice, that upon {specify the motion papers not previ- ously served), copies of which are served herewith, and upon {specify other motion papers, if any), heretofore served {or filed) in this action, this court will be moved at the next (Special) Term thereof, to be held at the , in the of , on the day of , 188 , at the opening of the court, or as soon thereafter as counsel can be heard, for {specify order or relief sought, cnid if the motion is based upon an irregulariiy, specify the irregularity), or for such further order or re- lief as the court may grant in the premises. Dated (September 3, 1884). Yours, etc., C. D., Attorney for , N. Y. To E. F., Esq., Attorney for 584 Appendix of Forms. No. 71. Notice of motion to remove cause frona the County Court to the Supreme Court. See ante, p. 38 ; Code of Civ. Pro., § 343. {Title of the cause.) Sir — Take notice, that upon the affidavit of , a copy of ■which is herewith served upon you, and upon the pleadings hereto- fore served in this action, this court will he moved at the next Special Term thereof, to be held at the , in the of , on the day of , 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order removing this action from the County Court of the county of to the Supreme Court, or for such other or further order or relief as the court may grant in the premises. (Date.) {Signature and office address.) To , Attorney for No. 73. Notice of motion to remove cause to Supreme Court to change the place of trial. See ante, p. 31 ; Code of Civ. Pro., § 343. {Title of tTie cause.) Sir — Take notice, that upon the affidavit, a copy of which is here- with served upon you, and upon the pleadings heretofore served in this action {if there are other moving papers, specify them), this court will be moved, at the next Special Term thereof, to be held at the , in the of , on the day of , 1884, at the open- ing of the court, or as soon thereafter as counsel can be heard, for an order removing this action from the County Court of the county of to the Supreme Court, and changing the place of trial from the county of to the county of , and for such other or fur- ther order or relief as the court may grant in the premises. {Date.) Yours, etc., A. B., Attorney for Defendant, To 0. D., Esq., Attorney for Plaintiff. Appendix of Foems. 5S5 No. 73. Notice of motion to consolidate actions pending in the same court. See ante, p. 48; Code of Civ. Pro., § 817. SUPEBMB COUKT. James Bradner Henry Barr and Jolin Grant. SUPRExMB COURT. James Bradner Action Ho. 1. Action No. 3. Henry Barr and John Grant. SiE — Please take notice, that upon the aifidavit of Henry Barr, ■with a copy whereof you are herewith served, and upon the pleadings heretofore served in the above-entitled actions, this court will be moved at the next Special Term thereof to be held at the (court-house) in the of , on the day of , 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order consolidating the above-entitled actions into one action and for such other or farther order or relief as the court may grant in the premises, and for the costs of this motion. (Date.) Yours, etc., A. B., Attorney for Defendants. (Office address.) To C. D., Esq., Attorney for Plaintiff. No. 74. Notice of motion to consolidate actions in different courts. See ante, p. 32 ; Code of Civ. Pro., § 818. SUPREME COURT. Amos Smith agst. Harvey Jones. SUPERIOR COURT OF THE CITY OP BUFFALO. Amos Smith agst. Harvey Jones. Sir — Take notice, that upon the affidavit of H. J., a copy of which is herewith served upon you, and upon the pleadings heretofore served 74 5 so Al'PENDIX OF J^OKMS. in the above-entitled actions {specify the other moving papers, if any), the defendant will move the Supremo Court, at a Sjoecial Term thereof to be held at tho , in the of , on the day of , 1884, at the opening of the court, or as soun thereafter as counsel can be heard for an order, removing to itselt the above-enti- tled action pending in the Superior Court of the city of Buffalo, and consolidating it with the above-entitled action pending in the Supreme Court, and for such other or further order or relief as the court may grant in the premises, together with costs of this motion. (Date.) Yours, etc., D. M., Attorney for Defendant. To M. H. , Esq., Attorney for Plaintiff. No. 75. Notice of motion to sever action in case of admitted demand. See ante, p. 51 ; Code of Civ. Pro., § 511. SUPREME COURT, Thomas Moran agst. David Davidson. Sir — Please take notice, that on the summons, complaint and answer heretofore served in this action (and on the affidavit of , with a copy whereof you are herewith served), an application will be made to this court at a Special Term thereof to be held at , in , on the day of , 188 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order granting leave to the plaintifi" to sever this action ; to enter judgment for the cause of action admitted by the answer set forth in the count of his complaint at folios ; that the action be continued as to the remainder of the claims set forth in the complaint if the plaintiff shall so elect ; and that he have such other or further order or relief as the court may grant in the premises. [Date.) Yours, etc., E. F., Plaintiff's Attorney. {Office address.') To C H., Esq., Defendant's Attorney. Appendix of Foems. 5S7 No. 76. Notice of motion for a commission to examine a witness without the State on interrogatories. See ante, p. 99 ; Code of Civ. Pro., § 889. {Title of the cause.') SiK — Please take notice, that upon the affidavit of , with a copy whereof you are herewith served, and on the pleadings and pro- ceedings in this action this court will be moved at a Special Term thereof to be held at , in the of , on the day of , 188 , at the opening of the court, or as soon thereafter as counsel can be heard for an order that a commission issue to of , or to some other competent person, authorizing him to exam- ine J. K. as a witness for the defendant, under oath, upon interroga- tories annexed to the commission, to take and certify the deposition of such witness, and to return the same with tlie commission accord- ing to the directions therein or therewith given ; and ihat the trial of this action be stayed until the return of said commission, or for such other or further order or relief as the court may grant in the premises. {Date.) Yours, etc., T. F., Attorney for Defendant. To S. G., Esq., Attorney for Plaintiff. No. 77. Notice of motion for an open commission. See a7it6, p. 108 ; Code of Civ. Pro., § 894. {Title of the cause.) Please take notice, that on the annexed affidavit of A. B., with a copy whereof you are herewith served, and upon all the pleadings and proceedings in this action , the undersigned will move at a Special Term of this court, to be held at the court-house in the of , CDunty of , on the day of , 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order that an open commission issue in this action, directed to one or more competent persons therein named, and authorizing them, or any one of them, to examine any witnesses who may be produced by either party, on or before a day specified therein, upon oral questions, to be put to the witness or witnesses, when produced, as to the issues in said action ; and to take and certify the deposition of each witness so ex- amined, and return the same and the commission, pursuant to stat- ute and the direction of the court, and that the trial of this action be stayed until the return of such commission, and for such other or fur- ther order as may be just. {Date.) I CD., Attorney for Defendant. {Office address.) To B. P., Esq., Attorney for Plaintiff. 688 Appendix of Fokms. No. 78. Notice of motion for a trial of questions of fact by a jury. See ante, p. 64 ; Code of Civ. Pro., §§ 970, 971. SUPREME OOUKT. Henry AUerton agst. I George Allen, Mary Allen, and an other. Sir — Please take notice, that upon the affidavit of ' , a copy of ■which is herewith served upon you, and upon the pleadings heretofore served in this action, this court will be moved at the next Special Term thereof, to be held at the court-house in the of , on the day of , 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order directing that the questions of fact involved in the issues in this action specified in the paper indorsed " defendants' proposed questions of fact," with a copy whereof you are herewith served, be tried by a jury, or for such other or further order or relief as the court may grant in the premises. • (Date.) Yours, etc., E. C, Defendants' Attorney. {Office address.) To D. & P., Esqs., Plaintiff's Attorneys. No. 79. Notice of motion for a trial by jury of the issue of adul- tery, etc., in divorce. See ante, p. 64 ; Code of Oiv. Pro., §§ 1757, 1770. (Title of the cause.) Sir — Please take notice, that upon the pleadings heretofore served in this action, this court will be moved at the next Special Term thereof, to be held at , in the of , on the day of , 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order directing that the issues upon the allegation of adultery in the complaint (and answer) be tried by a jury, and that all the questions arising upon these issues be distinctly and plainly stated for trial accordingly. (And also take notice, that at the same time and place, the court will be moved for an order directing that the issue on the question of the legitimacy of the child , be also tried by a jury, and that the questions arising upon that issue be utated for trial accordingly.) Appendix of Foems. 589 And also take notice, that the paper hereto annexed contains the questions of fact proposed to be submitted to the jury for trial, and that the same will be read upon the hearing of this motion. (Date.) (Signature and office address.) Yours, etc., To , Esq., Attorney for the '9 ,_ No. 80. Notice of motion for a reference of the issues. See ante, p. 69 ; Code of Civ. Pro., § 1013. SUPREME COURT. James Griffiths agst. William De Forest. Take notice, that upon the affidavit, a copy of which is herewith served upon you, and upon the pleadings heretofore served in this ac- tion, this court will be moved, at the next Special Term thereof, to be held at the chambers of the justice, in the city of Schenectady, on the 14th day of August, 1884, at the opening of the court, or as soon thereafter as counsel can be heard, for an order referring this ac- tion and all the issues therein to some suitable and proper person as referee to hear and determine the same, or for such other or further order or relief as the court may grant in the premises. Yours, etc., {Signature and office address.) To A. B., Esq., Attorney for Defendant. No. 81. Notice of motion for a nevr hearing, after trial of specific questions of facts by a referee. See ante, p. 276 ; Code of Civ. Pro., § 1004. {Title of the cause.) Please take notice, that upon the affidavit, with a copy whereof you are herewith served (and upon the report of , Esq., referee, bearing date the day of , 1884, heretofore filed in this ac- tion), this court will be moved at the next Special Term thereof, ap- pointed to be held at the , in the of , on the day of , 1884, at the opening of the court, or as soon thereafter 590 Appendix of Forms. as counsel can bo lipard, for an order setting aside said report and di- recting a new hearing of the questions of fact heretofore referred to said {if ^^'■<^ motion is Innednpon a mere irregularity, add), upon the ground {.yiecifi/ing the irregularity), and for such other or further order or relief as the court may grant in the premises. {Date.) Yours, etc., Z. "W., Attorney for (Office address.) To A. B., Esq., Attorney for No. 82. Notice of motion to obtain order preferring cause on calendar. See ante, p. 132 ; Code of Civ. Pro., § 793. John Doe agst. Drovers' Bank. Sir — Please take notice, that upon the pleadings in this action, heretofore served, and upon the aflidavil of John Doe, verified on the day of , 1884, this court will be moved, at a Special Term thereof, to be held on the day of , 1884, at , in the _ of , for an order preferring this cause for trial at the Circuit Term of this court, commencing on the day of , 1884, under section 791, subdivision 7, of the Code of Civil Procedure. Yours, etc., A. B., Attorney for tlie Plaintiff. ( Office and post-office address.) To C. D., Esq., Attorney for the Defendant. ORDEES. No. 83. Order for the taking of depositions — By the court. See ante, p. 109 ; Code of Civ. Pro., § 894. At a Special Term of the Supreme Court, held at the court-house in , county of , on the day of , 18 : Present — Hon. .Justice. John Doe agst. Richard Roe. On reading and filing the affidavit of E. E., dated the day of , 18 , making satisfactory proof that one or more witnesses Appendix of Foems. 5'Jl not within this State are material and necessary in the prosecution {or defense) of this action, and on the pleadings and proceedings in this action, and on proof of due service of the annexed notice of motion, with a copy of said affidavit, and after hearing A. B., of counsel for the prosecution {or defense), and C. D., of counsel for the op- posed, now on motion of , counsel for the , Ordered, that the deposition of each and every witness who may be produced by either party to this action within days from tlie date hereof, at a time and at a place within the State of , to be specified in a written notice served on the part of the upon the iittorney for the , at least days before the examination, be taken before Hon. , of the , of , State of , aforesaid, upon oral questions to be put to the witness when produced; that such depositions be taken within days from the date hereof, and that the said take and certify the deposition of each witness, and return the same with this order pursuant to law (and the direc- tions hereon indorsed). {Attach copies of §§ 900, 901, 903 o/'tte Code of Ciml Procedure.) No. 84. Order for taking the deposition — On stipulation. See ante, p. Ill ; Code of Civ. Pro., § 908. ( Title of the cause. ) On filing the stipulation of the attorneys for the respective parties to this action, bearing date the day of , 188 , and on motion of , counsel for the , it is Ordered , that the deposition of each and every witness who may be produced by either party to this action within days from the date hereof, at a time and at a place within the State of , to be specified in a written notice served on the part of the upon the attorney for the , at least days before the examination, be taken before Hon. , of the of , State of , aforesaid, upon oral questions to be put to the witness when produced; that such depositions be taken within days from the date hereof ; (that each question put to a witness upon his examination and his answer thereto be inserted, word for word, in his depositions ; that each and every objection to the questions or answers of any witness examined be noted in his deposition) ; that the said take and certify the deposition of each witness and return the same with this order pursuant to law. (Date. ) (Signature of clerh.) (Attach copies of% 900, 901, 902 of the Code of Civil Procedure. 592 Appendix of Forms. No. 85. Order for a commmissiou to examine witness on inter- rogatories. See ante, p. 101 ; Code of Civ. Pro., § 889. {Caption and title of the cause.) Oil reading and filing the affidavit of , dated the day of , making satisfactory proof that the testimony of J. K., a witness not within this State, is material to the (defendant) in the (defense) of the above-entitled action, and on the pleadings and proceedings in said action, and on motion of , of counsel for the (defendant) after hearing , of' counsel for the (plaintiff), Ordered, that a commission issue out of and under the seal of this court directed to , of , authorizing him to examine the said J. K., under oath, upon interrogatories annexed thereto, to take and certify the deposition of said witness, and to return the same and the commission according to the directions given therein or therewith. And it is further ordered, that the trial of this action be stayed until the return of said commission. {Add any direction as to costs, etc.) No. 86. Order that an open commission issue. See ante, p. 108 ; Code of Civ. Pro., § 894. ( Caption and title of cause.) On reading and filing the affidavit of , dated the day of , 1884, making satisfactory proof that one or more witnesses not within this State are material and necessary in the prosecution (or defense) of this action, and on the pleadings and proceedings in this action, proof of due service of the notice of this motion, with a copy of said affidavit, and after also reading and filing {specify all other papers read on the motion) now on motion of , of counsel for the , after hearing , of counsel for the , in opposition thereto. Ordered, that an open commission issue out of this court, in this action, directed to {naming the commissioner or commissioners) author- izing him {or them or either of them) to examine any witness who may be produced by either party, on or before the day of , 18 , at a time and place witliin the State of {specify the State), to be speci- fied by due written notice to the other part}', upon oral questions to be put to the witness when produced, under the issues in this action , and to take and certify the deposition of each witness and return the same with the commission pursuant to law ; (and it is ordered, that said commissioner insert in the deposition all the questions asked and answers given, word for word.) And it is further ordered that the trial of this ftction be stayed until the return of such commission or the further order of the court, and that {Add such provision as to terms as the court directs. Appendix of Forms. 593 No. 87. Order for an inspection of papers, with copy, etc. See ante, p. 133; Code of Civ. Pro., § 807; Eule 16. ( Caption and title of the cause.) An order having been heretofore granted in this action directing the defendant to allow the plaintiff, on or before the day of , 1884, to inspect and take a copy of a certain {describe the paper or papers), or in default thereof to show cause before this court on this day why such inspection and copy should not be allowed, and on the return of said order the said defendant having appeared and failed to show sufficient cause why such inspection with copy should not be allowed, now on reading and filing said order to show cause and the petition upon which the same was granted, and the affidavits of read in opposition to the motion, and on motion of , of counsel for the plaintiff, after hearing of , counsel for the defendant, it is* Ordered, that the defendant in this action produce at the office of {state the place) on the day of , 1884, at o'clock in the noon, the {specify the paper or papers), and there allow the plaintiff to inspect the same and to take copies thereof (under the direction and superintendence of , who is hereby appointed a referee for that purpose) ; that said inspection be made between (specify the time within which the inspection is to be made) ; and that said de- fendant pay to the plaintiff $10 as the costs of this motion (and, dollars in addition thereto, as the fees of said referee). ( Or as above to the*, then add) Ordered, that the defendant in this action produce and deposit {specify the paper or papers) in the office of the clerk of the county of , within days from the service of a copy of this order ; that written notice of such deposit be served upon the attorney for the plaintiff ; that the said {naming the paper or papers) so remain in the office of said clerk for full days from the service of said notice of deposit ; that the plaintiff be allowed freely to inspect the same during the time said papers so remain on deposit ; and that the de- fendant pay to the plaintiff $10 as the costs of this motion. • T5 594 Appendix of Fokms. No. 88. Order for the production of books, etc., at the trial. See ante, p. 86 ; Code of Civ. Pro., § 867. SUPEEME COURT. John Doe agst. Richard Roe. On reading the affidavit of , verified on the day of , 1884, and on motion of , of counsel for the , Ordered, that produce at the Circuit (or hearing) appointed to be held at , in the of , on the day of , 1884, a certain book of account (describing it), to be used as evidence upon the trial of an action pending in the Supreme Court, and then and there to be tried, in which (John Doe) is plaintiff and (Eichard Roe) is defendant, on the part of said (defendant). (Date.) (Signature of judge or referee.) No. 89. Order requiring the production of original record at the trial. p. 85 ; Code of Civ. Pro., § 866. At a Special Term of the Supreme Court, held at , in the of , on the day of , 1884: Present — Hon. , Justice. John Doe agst. Richard Roe. On reading and filing (specify the motion papers), whereby it ap- pears to the court that the production of the original record of (specify the record or document), instead of a transcript thereof, will be necessary upon the trial of this action; now, on motion of A. B., of counsel for the , it is Ordered, that the original record of (specify the record or document) be removed by the clerk of the county of from his office to a term of this court (or to a hearing before , Esq., referee), to be held at , in the of , on the day of , and be there produced for the purpose of being read in evidence in a cer- tain action then and there to be tried, in which John Doe is plaintiff and Richard Roe is defendant. Appendix of Fokms. 595 No. 90. Order by county judge staying proceedings pending a motion. See ante, pp. 31, 36 ; Code of CiT. Pro., § 345. COUNTY COURT — County op Fulton. William S. Brown agat. Andrew J. Smith. On reading the affidavit of Andrew J. Smith, the defendant above named, verified the day of , 1884, by which it appears that the above-entitled action has been noticed for trial at the next trial term of the County Court of this county, to be held on the day of , 1884, and that a motion to remove the action from said court to the Supreme Court, for the purpose of changing the place of trial, is now pending in the latter court, and will be brought to a hear- ing at a Special Term thereof, to be held at , on the day of , 1884 ; now, on motion of D. M., of counsel for the defend-, ant, Ordered, that all the proceedings in this action, and particularly the trial thereof, and {specify the important steps), be stayed until the hearing and determination of said motion, but not exceeding twenty days from the date hereof. J. K., County Judge of Fulton County. No. 91. Order for the examination of a party before trial. See ante, p. 91 ; Code of Civ. Pro., § 873. (Title of the cause.) On reading and filing the affidavit of , verified on the day of , 188 (and the pleadings heretofore served in this ac- tion), and on motion of , of counsel for the , Ordered, that the above-named be examined and his deposi- tion be taken, pursuant to section 873 of the Code of Civil Procedure, and that for the purpose of taking such examination the said appear before , a referee hereby appointed to take said deposi- tion, at his office, at , on the day of , 188 , at o'clock in the noon of that day, and submit to examination con- cerning the matters relevant to the issues {or to the issue of ) in this action. Let a copy of this order be served upon the said , within this State, on or before the day of , 1884. {Bate. (Signature and official title.) 596 Appendix of Foems. No. 93. Order postponing trial of an action. See ante, p. 157 ; Code of Civ. Pro., § 3255. ( Caption and title of the cause.) On reading and filing the aflBdavit of , and on motion of , of counsel for the , after hearing , of counsel for the , in opposition, Ordered, that the trial of this cause be postponed until the next Circuit Court appointed to be held in this county, upon the condition, however, that the said forthwith pay to the attorney the sum of $10, besides the fees of witnesses and his other taxable disbursements, already made or incurred, which will be rendered inef- fectual by such postponement. No. 93. Order removing cause to the Supreme Court and chang ing the place of trial. See ante, p. 31 ; Code of Civ. Pro., § 334. At a Special Term of the Supreme Court, held at . j in the of , on the day of , 1884: Present — Hon. , Justice. John Doe agst. Richard Roe. On reading and filing the affidavit of A. B., verified on the day of , 1884, the pleadings in this action, the notice of this motion, the affidavits of J. D. and H. S., verified on the day of , 1884, and after hearing A. B., of counsel for the defendant, in support of the motion, and C. D. , of counsel for the plaintifi", in opposition thereto, Ordered, that the above-entitled action be, and upon the entry of this order is removed from the County Court of the county of to the Supreme Court ; and it is also Ordered, that the place of trial of this motion be, and the same is hereby changed from the county of to the county of Appendix of Foems. 597 No. 94. Order consolidating actions pending in the same court. See ante, p. 50 ; Code of Ciy. Pro., § 817. ( Caption and title of all the actions.) On rerjding and filing the aflSdavit of Henry Barr, verified the day of , 1884 {specify opposing affidavits, etc., if any), the plead- ings in each of the above-entitled actions, the notice of this motion (and proof of due service thereof), and on motion of A. B., Esq., attorney for the defendants (after hearing C. D., Esq., attorney for the plaintiff', in opposition thereto). Ordered, that the several actions above entitled be and hereby are consolidated into one action in this court ; that the plaintiff have leave to serve an amended complaint in the consolidated action within days from the service of this order; that in default of the service of such amended complaint, the complaints heretofore served in the above-entitled actions stand as the plaintiff's complaint in the consoli- dated action, and for that purpose be deemed one pleading ; that the accrued costs in the several actions, to be taxed, abide the event of the consolidated action (or such other direction as to costs as the court may make), and that the defendant have $10 costs of this motion, to be paid by the plaintiff. No. 95. Order consolidating causes in different courts. See ante, p. 32 ; Code of Civ. Pro., § 818. At a Special Term of the Supreme Court, held at , in the of , on the day of , 1884 : Present — Hon. , Justice. SUPEEME COURT. Amos Smith | agst. Y Harvey Jones. i SUPERIOR COURT OE THE CITY OP BUFFALO. Amoa Smith agst. Harvey Jones. On reading and filing the notice of this motion, the pleadings in this action and the affidavit of Harvey Jones, verified on the day of , 1884, and after hearing A. B., of counsel for the defend- 598 Appendix of Forms. ant, in favor of the motion, and C. D., of counsel for the plaintiff, opposed. Ordered, that the above-entitled action in the Superior Court of the city of Buffalo be, and the same is hereby removed to the Supreme Court ; that the above-entitled actions be and hereby are consolidated into one action in the Supreme Court, and that the defendant have $10 costs of this motion, to be paid by the plaintifi". No. 96. Order for the removal of a cause from the County Court to the Supreme Court. See ante, p. 28 ; Code of Civ. Pro. , § 342. ( Captimi and title of the cause.) On reading and filing the pleadings heretofore served in this action, the affidavit of , verified the day of , 1884 (the no- tice of this motion and proof of due service thereof) , and on motion of , attorney for the defendant, no one appearing (or after hear- ing , attorney for the plaintiff), in opposition thereto. Ordered, that the above-entitled action be, and upon the entry of this order is removed from the County Court of the county of to the Supreme Court, and that all subsequent proceedings be had in the latter court. No. 97. Order removing the cause from the Supreme Court to a Superior City Court on stipulation. See ante, p. 33 ; Code of Civ. Pro., § 274. At a Special Term of the Supreme Court, held at the chambers of the justice in the of , on the day of , 1884 : Present — Hon . , Justice. Alexander Campbell ) agsi. y Archibald McDonald. \ On reading and filing the stipulation of the attorneys for the several parties to this action , and on motion of , attorney for the plaintiff, Ordered, that the above-entitled action be removed from the Supreme Court to the Superior Court of Buffalo. Appendix of Forms. 599 No. 98. Order changing the place of trial. See ante, p. 43 ; Code of Civ. Pro., § 987. At a Special Term of the Supreme Court, held at , in the of , on the day of , 18 : Present — Hon. , Justice. John Doe agat. Richard Roe. On reading and filing the pleadings in the above-entitled action, the affidavits of {specify the papers read on the motion), and after hearing D. M., Esq., of counsel for the defendant, in favor of the mo- tion, and J. K., Esq., of counsel for the plaintiff, opposed. Ordered,* that the place of trial of the above-entitled action be, and the same hereby is, changed from the county of to the county of , and that the plaintifE pay to the defendant $10, as costs of this motion. No. 99. Order denying motion to change place of trial. {As in above to the *, then insert) that the motion to change the place of trial of the above-entitled action from the county of to the county of be, and the same hereby is, denied {insert the di- rection of the court as to costs). No. 100. Order preferring cause on calendar. See ante, p. 133; Code of Civ. Pro., § 793. At a Special Term of the Supreme Court, held at , in the of , on the day of , 1884: Present — Hon. , Justice. John Doe agst. Drovers' Bank. On reading and filing the pleadings in this action, the affidavit of John Doe, verified on the day of , 1884 {specify the papers 600 Appendix of Fokms. read in opposition, if any), and after hearing A. B., of counsel for the plaintiff, in favor of the motion (and C. D., of counsel for the defend- ant, opposed). Ordered, that this action be tried as a preferred cause, under section 791, subdivision 7, of the Code of Civil Procedure. No. 101. Order granting leave to sever the action, for judgment, etc. See ante, p. 54 ; Code of Civ. Pro., § 511. At a Special Term of the Supreme Court, held at , in the of , on the day of , 1884 : Present — Hon, , Justice. Thomas Moran agat. David Davidson. It appearing by the pleadings read upon this motion that the part of the plaintiff's claim [specifying it) is admitted by the defendant's answer to be just, now on reading and filing the notice of this motion, and proof of due service thereof, and on motion of E. F., attorney for the plaintiff, no one appearing to oppose {or after hearing G.H., Esq., attorney for the defendant, in opposition to the motion). Ordered, that this action be and hereby is severed, and that a judg- ment be entered for the plaintiff to the effect that he recover {specify the recovery), for {specify the part of the claim included in the re- covery), the part of the plaintiff's claim admitted by answer to be just. And it is further ordered, that the plaintiff elect whether he will further continue said action, and that he manifest such election by a notice in writing, subscribed by his attorney, served upon the attorney for the defendant on or before the day of , 1884 ; and that if the plaintiff elects to continue said action, and gives notice of such election, as above provided, that such action be thereupon continued with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the plaintiff's claim. Appendix of Forms. 601 No. 102. Order for a struck jury. See ante, p. 77 ; Code of Civ. Pro., § 1063. At a Special Term of the Supreme Court, held at , in the of , on the day of , 18 : Present — Hon. , Justice. Ambrose Borst | agst. V Caleb Duncan. \ On reading and filing the pleadings in the above-entitled action, and the afl&davit of Caleb Duncan, and after hearing H. M., of coun- sel for the defendant, in favor of the motion, and C. G., of counsel for the plaintiff, opposed, Ordered, that a special jury be struck for the trial of the issues of fact in this action ; * that such special jury attend a Circuit Term of this court, appointed to be held in and for the county of , on the day of , 18 {or specify a particular day in the term). (That the parties to this action attend before the clerk of the county of \or the commissioner of jurors of the county of , or the clerk of this court, as the case may ie] , on the day of ,18 , at o'clock in the noon, for the purpose of having said jury struck) ; or (that the clerk of the county of , \or the proper offlcer~\ fix a time for the parties to this action to attend before him for the purpose of having said jury struck). No. 103. Order appointing disinterested persons to strike jury. See ante, p. 77: Code of Civ. Pro., § 1068 {Captimi and title of the cause.) {Proceed as in the above form to the *, then insert) that B. 0. and H. G-., two disinterested persons of the county of , strike said jury; that such special jury attend a Circuit Term of this court, ap- pointed to be held in and for the county of , on the day of , 18 (or specify a particular day in the term). (That the parties to this action attend before the said B. C. and H. G. on the day of , 18 , at , for the purpose of having said jury struck), or (that the said B. C. and H. G. fix a time for the parties to this action to attend before them at , for the purpose of having said jury struck). Y6 602 Appendix of Forms. No. 104. Order for the trial of specific questions of fact by a jury. See ante, p. 63 ; Code of Civ. Pro., § 971, At a Special Term of the Supreme Court, held at the , in the of , on the day of , 1884 : Present — Hon. , Justice. John Doe agst. Richard Roe. On reading and filing the affidavit of , the pleadings in this action, the notice of this motiou, the questions of fact proposed to be submitted to a jury for trial, and proof of due service of a copy of said affidavit and questions of fact with the notice of motion, and on mo- tion of , of counsel for the (defendant), after hearing , of counsel for the (plaintifE), Ordered, that the questions of fact involved in the issues in this ac- tion, and hereinafter specified, be tried at the Circuit by a jury, and the same are hereby stated by the court for such trial, as follows : First. {State the several questions to be submitted.) No. 105. Order for the trial by a jury of the issue of adultery in divorce. See ante, p. 63; Code of Civ. Pro., § 1757. (Caption and title of the cause.) On reading and filing the pleadings in this action, the notice of this motion, and proof of due service thereof, with a copy of the questions of fact proposed to be submitted to a jury for trial thereto annexed, and on motion of , of counsel for the , after hearing , of counsel for the , Ordered, that the issue of adultery raised by the pleadings in this action (and the issue on the question of the legitimacy of the infant , raised by the complaint and answer herein) be tried by a jury, and that all questions arising upon those issues be distinctly and plainly stated for trial accordingly. And it is further ordered, that it be referred to , Esq., coun- selor at law, as referee, to distinctly and plainly state the questions arising on said issues of adultery (and legitimacy) in the form of inter- rogatories, to be answered by the verdict of the jury thereon. And it is further ordered, that the said referee give to the attorneys for the respective parties in this action due notice in writing of the time when and place where he will attend for the purpose of settling Appendix of Foems. 603 said issues in accordance with this order ; and that upon the coming in and confirmation of his report, the testimony to be taken in this cause upon said issues shall be directed and confined to the questions so stated and settled. No. 106. Order of course referring cause. See ante, p. 67 ; Code of Civ. Pro., § 1011. (Title of the caused On reading and filing the written consent and stipulation of the parties hereto, it is ordered that the above-entitled cause, and all the issues therein, be and the same are hereby referred to J. C, Esq., counselor at law, to hear and determine the same. (Date.) {^Signature of clerk.) No. 107. Order of court referring cause on stipulation. See ante, p. 67 ; Code of Civ. Pro., § 1011. ( Caption and title of the cause.) On reading and filing the written consent and stipulation of the par- ties hereto, and on motion of D. M., attorney for the plaintiff, it is ordered that the above-entitled cause, and all the issues thereon, be and the same hereby are referred to J. C, Esq., counselor at law, to hear and determine the same. No. 108. Order referring cause when referee named refuses to serve. See ante, p. 67 ; Code of Civ. Pro., § 1011. (Caption and title of the eattse.) On reading and filing the written consent and stipulation of the par- ties hereto that the above-entitled cause be referred to J. C, Esq., and it appearing that the said J. 0. refuses to serve, now, on motion of D. M., attorney for the plaintiff, it is ordered that said cause and all the issues therein be, and the same hereby are referred to B. B., Esq., counselor at law, to hear and determine the same. 604 Appendix of Foems. No. 109. Order referring cause after new trial granted. See ante, p. 67 ; Code of Civ. Pro., § 1011. {Caption and title of the cause.) On reading and filing {here specify papers read on motion), from which it appears that the above-entitled cause was referred to J. C, Esq., pursuant to stipulation of the respectiye parties hereto ; that the same was tried before him ; and that a new trial has been granted (before another referee), now, on motion of D. M., attorney for the , and after hearing C. H., attorney for the . , it is ordered that the said cause and all the issues therein be, and the same hereby are rererred to A, P., Esq., counselor at law, to hear and determine the same. No. 110. Order of reference of the issues. See ante, p. 73; Code of Civ. Pro., § 1013. At a Special Term of the Supreme Court, held at , in the of , on the day of , 18 Present — Hon. , Justice. Jamea Griffiths agst. William De Forest. On reading and filing the pleadings in this action, the af&davit of James Griffiths and the afBdavit of William De Forest, and after hear- ing H. D., of counsel for the plaintiff, in support of the motion, and P. K., of counsel for the defendant, in opposition thereto,* Ordered, this action and all the issues therein be, and the same hereby are referred to B. S., Esq., a counselor of this court, to hear and de- termine the same. No. 111. Order of reference of particular issues. See ante, p. 75 ; Code of Civ. Pro., § 1013. (Proceed as in above form to the*", then insert) Ordered, that the issue of payment raised by the reply to the counter-claim set up in the answer of the defendant in this action [or other partioular issue re- ferred) be, and the same hereby is referred to, B. S., Esq., a coun- selor of this court, to hear and determine. Appendix of Foems. 605 No. 112. Order of reference in foreclosure — Whole amount due. See ante, p. 317 ; Eule 60. {Caption and title of the cause.) On reading the complaint on file in this action (the ans^rer of the defendant ), and on the affidavit of , plaintifE's attorney, and it appearing that this action is brought to foreclose a mortgage, and that the whole amount secured thereby is actually due, and on filing proof of the personal service of the summons m this action on the defend- ants {naming the defendants served), more thaa twenty days since, and that no answer to said complaint has been served by them or any of them (except the defendant , aforesaid, who has served an answer admitting the right of the plaintiff, as stated in the complaint), and on motion of , attorney for the plaintiff, it is Ordered, that it be referred to , Esq., of , N". Y., to compute and report to this court the amount due to the plaintiff for principal and interest upon the bond and mortgage set forth in the complaint in this action. No. 113. Order of reference in foreclosure — Whole amount not due. See ante, p. 317 ; Rule 60. ( Caption and title of the cause.) On reading the complaint on file in this action (the answer of the defendant ), and the affidavit of , plaintiff's attorney, and it appearing that this action is brought to foreclose a mortgage, and that the whole amount secured thereby is not due, on filing proof of the personal service of the summons in this action on the defendants , more than twenty days since, and that no answer to said complaint has been served by either or any of the defendants (except the defend- ant aforesaid, who has served an answer admitting the right of the plaintiff, as stated in the complaint), on motion of , attorney for the plaintiff, it is Ordered, that it be referred to , Esq., of , to compute the amount actually due to the plaintiff on the bond and mortgage mentioned in the said complaint (and to such of the defendants as are prior incumbrancers of the mortgaged premises). And also, to ascertain and report the amount secured to be paid by said bond and mortgage, and which is not due, and which remains unpaid, including interest thereon to the date of such report. And also, to ascertain and report the situation oE the mortgaged premises, and whether, in his opinion, the same can be sold in parcels 606 Appendix of Foems. without injury to the interest of the parties; and if he shall be of opinion that a sale of the whole of said premises, in one parcel, will be most beneficial to the parties, then that he report the same, with his reasons for such opinion. No. 114, Order of reference in foreclosure — Whole amount not due — Infants and absentees. See ante, p. 317 ; Eule 60. {Caption and title of the cause.) On reading the complaint on file in this action, the answer of the defendant , the aifldavit of , plaintiff's attorney, and it appearing that this action is brought to foreclose a mortgage, and that the whole amount secured thereby is not due, now, on filing proof of the personal service of the summons in this action on the defendants , more than twenty days since, and that no answer to the said complaint has been served by the defendants, or either of them, except the defendant , who is an infant and has put in a general answer by his guardian, and that the defendants are absentees residing in the State of , and have been duly served by publication with the summons in this action ; that the time allowed to them by law to appear and answer said complaint has expired, and that no answer to said complaint has been served by them, or either of them, and on motion of , attorney for the plaintiff, it is* Ordered, that it be referred to , Esq., of , N. Y., to compute the amount actually due to the plaintiff for principal and interest on the bond and mortgage set forth in- the complaint (and to such of the defendants as are prior incumbrancers of the mortgaged premises). And also to ascertain and report the amount secured to be paid by said bond and mortgage, and which is not due, and which remains unpaid, including interest thereon to the date of such report. And also to ascertain and report the situation of the mortgaged premises, and whether, in his opinion, the same can be sold in parcels without injury to the interest of the parties; and if he shall be of opinion that a sale of the whole of said premises, in one parcel, will be most beneficial to the parties, then that he report the same with his reasons for such opinion. And also that he take proof of the facts and circumstances stated in the complaint herein, and examine the plaintiff or his agent on oath as to any payments which have been made. Appendix of Foems. 607 No. 115. Order of reference in foreclosure — Whole amount due — Infants and absentees. See ante, p. 317 ; Eulc 60. (Caption and title of the cause.) On reading the complaint on file in this action, also the aflSdavit of , plaintiffs attorney, and it appearing that this action is brought to foreclose a mortgage, and that the whole amount secured thereby is actually due, now, on filing proof, etc. (as in No. 114 to the *, then insert). Ordered, that it b3 referred to , of , K Y., to compute the amount due to the plaintiff for principal and interest upon the bond and mortgage set forth in the complaint in this action ; and also to take proof of the facts and circumstances stated in said complaint, and to examine the plaintiff or his agent on oath as to any payments which have been made. No. 116. Order of reference to inquire as to creditors, etc. See ante, p. 307 ; Code of Civ. Pro., § 1561. {Caption and title of the cause.) On reading and filing {specify the papers read on the motion), and on motion of , of counsel for the , no one appearing to oppose. Ordered, that it be referred to , Esq., of , to ascertain and report whether there is any creditor, not a party to this action, who has alien upon the undivided share or interest of any party herein at the date hereof. And it is further ordered, that said referee cause a notice to be pub- lished once in each week for six successive weeks in the , a news- paper published in the county of , and in such other paper pub- lished in said county as the referee may select [See chap. 133, Laios oj 1884), requiring each person, not a party to this action, who at the date hereof has a lien upon any undivided share or interest in the real property described in the complaint in this action, to appear before him at a place, and on or before a day specified in said notice, to prove his lien and the true amount due, or to become due to him by reason thereof ; and that said referee report to this court, with all convenient speed, the name of each creditor whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof, and the amount due or to become due thereupon. 608 Appendix of Foems. No. 117. Order of confirmation in foreclosure. Seo ante, p. 350. (Caption and title of the cause.) On reading and filing the report of J. B., the referee heretofore ap- pointed herein of the sale of tlie mortgaged premises mentioned and described in the complaint in this action, which said report bears date the day of , 188 , the notice of this motion, and proof of due service thereof, and on motion of , attorney for the plaint- iff (no one appearing to oppose), Ordered, that the said report be, and the same is, in all things, con- firmed. No. 118. Order for a ne^v hearing of specific questions of fact before a referee. See ante, 276 ; Code of Civ. Pro., § 1004. (Caption and title of the cause.) On reading and filing the {specify the papers read on the motion), and on motion of , of counsel for the , after hearing , of counsel for the , Ordered, that the order made herein on the day of , 188 , whereby it was referred to , Esq., to report said referee's find- ings upon {state the questions referred), be, and hereby is vacated and discharged, and that the report of said referee, bearing date the day of , 188 , be and the same is hereby set aside. And it is further ordered, that it be referred to , Esq., of , to report his findings upon {state the questions referred), and that a new hearing of the questions so referred be had before the last-named referee, and that such reference proceed as if no prior reference had been ordered. And it is further ordered, that {insert directions as to the costs) . Appendix of Fokms. 609 No. 119. Order for attachment of Witness. See ante, p. 81. At a Circuit Term of tlie Supreme Court, held in and for the county of , in the State of New York, at the court-house in the of , in said county, on the day of , 188 : Present — Hon, , Justice. John Doe agst. Richard Roe. On reading and filing the affidavit of Eichard Eoe, dated the day of , 188 , and the subpoena and proof of service thereto an- nexed, and it appearing therefrom that E. M. was on the day of , 188 , duly subpoenaed to appear and attend at this Circuit Court to be examined in the above-entitled cause to be tried therein, on the part of the (defendant) in said cause, and that the said E. M. has refused and neglected to attend the said Circuit Court in pursuance of such writ of subpoena, and that said E. M. is a necessary and material witness in behalf of said (defendant) in said cause, without vrhose testimony the said (defendant) cannot safely proceed to the trial of said cause, Ordered, that an attachment issue against the said E. M., re- turnable before this court at a Circuit Court thereof, to be held at the court-house, in the of , on the day of , 188 , at the opening of the court on that day, and that said warrant be returned and filed with the clerk of the said court on or before that day. No. 120. Order to show cause —General, See ante, p. 518. At a Term of the Court, held at the in the of , county of , this State, this day of , 188 : Present — Hon. , Justice. John Doe agst. Richard Roe. On reading the affidavit of A. B., verified the day of , 188 , {specify other motion papers) and on motion of C. D., attorney for the (defendant), 77 610 Appendix of Forms. Ordered, that the (plaintiff) herein show cause thereon, at a (Special) Term of this court, to be hold at the , in the , of on the day of 188 , at o'clock in the noon, or as soon thereafter as counse] can be heard, why {state the order or relief sought, and if the motion is based on an irregularity, specify the irreg- ularity complained of), and why the (defendant) should not recover of the (plaintiff) costs of this motion. Service of a copy of this order, and of the papers on which it is granted, made (personally) on the attor- ney for the (plaintiff) on or before the day of , 188 , shall be sufficient. No. 121. Order to show cause vrhy an inspection of papers should not be paid. See ante, p. 130 ; Code of Civ. Pro., § 805. {Caption and title of the cause.) On reading and filing the petition of A. B., verified the day of , 1884, and upon the pleadings in this action, and on motion of , counsel for said petitioner, Ordered, that the defendant herein on or before the day of , 1884, allow the plaintiff herein to inspect {specify the paper) and to take a copy of the same, or in default thereof that the said de- fendant show cause at a Special Term of this court, to be held at the , in the of , on the day of , 1884, at o'clock in the noon, or as soon thereafter as counsel can be heard, why the prayer of said petition should not be granted, and such inspec- tion, with copy, should not be allowed, and why the plaintiff should not recover of the defendant costs of this motion. Service of a copy of this order, and of the papers upon which it is granted, made personally on the attorney for the defendant on or be- fore the day of , 1884, shall be sufficient. WKITS. No. 122. Writ of habeas corpus ad testificandum. See ante, pp. 81, 83; Code of Civ. Pro., § 3008. SUPREME COURT. ■ ^ The People of the State of New York, on the relation of Richard Roe, agst. John Latour, Sheriff of the County -^ : J The People of the State of New York, on the relation of Richard Roe, To John Latour, Sheriff of the County of , Greeting: Appkndix of Foems- 611 We commanfl you that you have the body of Johu Stiles, now detained under your custody in the common jail of your county, as it is said, under safe and secure conduct, before our court at the Circuit, to be held at the court-house in , in and for the county of , on the day of , 188 , at the opening of the court, to testify as a witness in a certain action now pending in this court, and then and there to be tried between John Doe, plaintiff, and Richard Eoe, defend- ant, on behalf of the defendant; and have you then and there this writ. Witness, Hon. , one of the justices of our Supreme Court, the day of , 188 . (^Seal.) {Signature of clerh) {Signature of attorney.) No. 123. Return to ■writ of habeas corpus ad testifLcandum. See ante, p. 83 ; Code of Civ. Pro., § 2013. SUPREME COURT. The People of the State of New York, on the relation of Richard Eoe, agst. John Latour, SheriflF of the County of To the Supreme Court of the State of New York : I, John Latour, the defendant above named, hereby return that, in obedience to the within writ, I have in custody before this court the body of John Stiles, who is held by me a prisoner in the common jail of the county of , under an execution against his person, issued upon a judgment recovered against him in the Court, in an action in which was plaintiff and said John Stiles was defendant, and that the paper hereto annexed is a copy of the exe- cution, by virtue of which he is so detained. {Bate.) JOHN LATOUR, Sheriff of the County of 'No. 124. Attachment against defaulting -witness. See ante, p. The People of the State of New York, to the Sheriff of the County of (or to the Sheriff of any County where the accused may be found), Greeting: We command you to arrest E. M., of , and forthwith bring him before one of the justices of our Circuit Court, at a term 612 Appendix of JFoems. thereof, at the court-house, in the of , county of , forthwith (or at a specified time), to answer for his misconduct in not obeying our writ of subpoena to him directed, and on him duly served, commanding him to appear before the said Circuit Court, at the place aforesaid, on the day of , 188 , and give evidence on the part of the (defendant) in a certain action between John Doe, plaint- iff, and Kichard Koe, defendant, and have you then there this writ. Witness, Hon. , justice {or judge) of our said court, at the court-house, in the of , in said county of , State of New York. {Signature of defendant's attorney.) {Signature of the clerh of the court.) No. 125. SUBPCENA. Subpoena for the circuit. See ante, p. 80. The People of the State of New York, to {insert the names of the several wityiesses), Greeting: We command you, that all business and excuses being laid aside, you and each of you appear and attend before the justices of the Su- preme Court, or some one of them, at a Circuit Court, to be held at the , in , in and for the county of , on the day of , 188 , at o'clock in the noon, to testify and give evidence in a certain cause now pending in the Supreme Court, then and there to be tried, between John Doe, plaintiff, and Eichard Eoe, defendant, on the part of the (plaintiff), and for a failure to attend you will be deemed guilty of contempt of court and liable to pay all loss and damages sustained thereby to the party aggrieved, and for- feit $50 in addition thereto. Witness, , Esq., one of the justices of our Supreme Court, the day of , 188 . {Signature of cleric.) {Signature of plaintiff ^s attorney.) No. 136. Subpoena for reference. See ante, p. 80. The People of the State of New York, to {insert the names of the sev- eral witnesses), Greeting : We command you and each of you, that (all and singular business and excuses being laid aside) you and each of you appear and attend Appendix of Foems. 613 before D. P., Esq., referee, duly appointed under an order of the Supreme Court, on the day of , 188 , at o'clock in the noon, at , to be examined as a witness, at the instance of the plaintiff, in a certain action now pending in said court, then and there to be tried, between John Doe, plaintiff, and Eichard Roe, defendant, and for a failure to attend, you will be deemed guilty of contempt of court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit $50 in addition thereto. Witness, , Esq., justice {or judge) of our said court, the day of , 188 . {Signature of the clerh.) (Signature of the plaintiff-'' 8 attorney.) No. 127. Subpoena duces tecum. See ante, p. 80. The People of the State of New York, to , Greeting : We command you, that (all and singular business and excuses being laid aside) you be and appear in your own proper person before the jus- tices of the Supreme Court, or some one of them [or , Esq., referee, duly appointed, etc.), on day of ,188 , at o'clock in the noon of that day, to testify what you may know in a certain action now pending undetermined in the said court, be- tween John Doe, plaintiff, and Eichard Roe, defendant, on the part of the plaintiff, and that you bring with you, and produce at the time and place aforesaid a certain [describe the booh or paper wMvJi the wit- ness is to produce^ now in your custody, and all other deeds, evidences and writings which you have in your custody or power concerning the premises. And for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all losses or damages sustained thereby to the parties aggrieved, and forfeit $50 in addition thereto. Witness, Hon. , justice {or judge) of our said court. {Signature of the clerh.) {Signature of the plaintiff's attorney.) No. 128, Subpoena ticket — Circuit. See ante, p. 80. By virtue of a writ of subpoena, to you directed and herewith shown to you, you are commanded, that all business and excuses being laid aside, you be and appear in your proper person, before one of the justices 614 Appendix of Foems. of the Supreme Court, at a Circuit Court appointed to be held in and for the county of , at the in , on the day of , 188 , at o'clock in the noon, to testify all and singular what you may know in a civil action now pending in the Supreme Court, then and there to be tried between John Doe, plaintiff, and Eichard Eoe, defendant, on the part of the (plaintiff). And for a failure to attend, you will be deemed guilty of a contempt of court and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit 150 in addition thereto. (Date.) By the Coubt. To {insert the name of the witness). (Signature of plaintiff ^s attorney.) No. 129. Subpoena ticket for reference. See ante, p. 80. By virtue of a writ of subpoena, to you directed and herewith shown, you are commanded that, all business and excuses being laid aside, you appear and attend, in your proper person, before D. P., Esq., the ref- eree appointed by the court, at , on the day of , 188 , at o'clock in the noon, to testify all and singular what you may know in a certain action now pending in the (Supreme) Court, and then and there to be tried between John Doe, plaintiff, and Eichard Eoe, defendant, on the part of the (plaintiff). And for a failure to attend, yon will be deemed guilty of a contempt of court, and liable to pay all loss or damages sustained thereby to the party aggrieved, and forfeit $50 in addition thereto. (Date.) By the ComiT. To (insert the name of the witness). (Signature of plaintiff ''s attorney.) COMMISSIONS AND INTEEEOGATOEIES. No. 130. Commission to examine ^vitness upon interrogatories. See ante, p. 103 ; Code of Civ. Pro.- § 887. The People of the State of New York, to , of , Greeting : Know ye that we, with full faith in your prudence and fidelity, have appointed you commissioner, and by these presents do authorize you to examine J. K., of , State of , as a witness in a cause pend- ing in our Supreme Court, wherein is plaintiff, and is defendant, in behalf of the , under oath, upon the interrogatories Appendix of Forms. 615 annexed to this commission ; to take and certify the deposition of such witness; and to return the same and this commission according to the directions herewith given. Witness, Hon. , one of the justices of our Supreme Court, [L. s.] at , the day of , 188 . (Signature of attorney.) {Signature of clerh.) (Annex a copy of section 901 and of section 903 of the Code of Civil Procedure, and the interrogatories and cross-interrogatories, as settled.) No. 131. Commission to examine partly upon oral questions. See ante, p. 106 ; Code of Civ. Pro., § 893. The People of the State of New York, to , Greeting ■ Know ye, that pursuant to an application (or stipulation) made in an action pending in the Supreme Court of the State of New York, wherein is plaintiff and is defendant, we, with full faith in your prudence and competency, have appointed you commissioner, and by these presents do authorize you as such commissioner to examine {name the witnesses) under oath upon the interrogatories annexed to this commission ; to take and certify the deposition of each of said witnesses ; and to return the same and this commission according to the directions herewith given. And also to take the deposition of {naming the witnesses) upon oral questions to be put to such witnesses when produced, and to certify the deposition of each of such witnesses so examined, and to return the same with this commission pursuant to the directions therewith given. Witness, Hon. , one of the justices of our Supreme Court, [l. s.] at , N. Y., this day of , 188 . , Clerh. , Attorney for the (Annex specific directions as to the mode of executing and returning the commis- sion, if any, and copies of sections 900, 901 and 902 of the Code of Civil Pro- cedure.) No. 132. Open commission to examine witnesses. See ante, p. 109 ; Code of Civ. Pro., § 897. The People of the State of New York, to , Greeting : Know ye, that in pursuance of an order made iu an action pending in the Supreme Court of the State of New York, wherein is plaintiff and is defendant, we, with full faith iu your prudence and com- 616 Appendix of Forms. petency, have appointed you commissioner, and by these presents do authorize you as such commissioner to examine any witness who may be produced by either party to said action on or before the day of , 188 , upon oral questions to be put to the witness when he is produced ; to take and certify the deposition of each witness so examined, and to return the same and this commission immediately after the said day of , 188 , according to the directions herewith given. Witness, Hon. , one of the justice of our Supreme Court, [L. s. at , N. Y., the day of , 188 . , Clerh. , Attorney for the {Annex any specific directions as to the mode of executing and returning the com- mission, and copies of sections 900, 901 and 903 of the Code of Civil Procedure.) No. 133. Interrogatories to be annexed to a commission. See ante, p. 104. {Title of the cause.) Interrogatories to be administered to J. K., of , when pro- duced for examination under the annexed commission as a witness on behalf of the plaintiflf in the above-entitled action. FiKST. — What is your name, age, occupation and place of resi- dence ? Second. — Do you know the defendant in this action ? If so, how long have you known him ? Thikd. — {Insert question as to fads involved in the issues, and con- tinue, stating a separate question for each distinct fact to be inquired about.) Lastly. — Do you know any fact touching the matters in question that may tend to the benefit and advantage of the plaintiff on the trial of this cause ? If yea, state the same fully and at large, as if you had been particularly interrogated concerning the same. {Signature of attorney.) Appendix of Foems. 617 JUDGMENTS. No. 134. Judgment on offer and acceptance. See ante, p. 63 ; Code of Civ. Pro., § 738. SUPREME COURT — State of New York, County of (Mont- gomery). Baltus Van Horn | nnRt \. Judgment August 13, 1884, at 10 h. 30 m., Horatio Vedder, I The summons and complaint in this action having been duly served upon the above-named defendant, and the said defendant having ap- peared in said action by F. B., Esq., his attorney, and served upon the plaintiff's attorney an offer in writing to allow judgment to be taken against him for $530, with costs, and the plaintiff having accepted said offer, and served a written notice of such acceptance upon the defendant's attorney, now, on filing said summons, complaint and offer, and due proof of acceptance thereof, and on motion of A. B., attorney for the plaintiff, it is hereby adjudged and determined that the plaintiff Baltus Van Horn recover of the defendant Horatio Ved- der the sum of $530, together with the sum of $ for his costs and disbursements as adjusted, amounting in all to the sum of $ , and that he have execution therefor. [Signature of clerJc.) No. 135. Judgment for plaintiff upon a verdict. See anle, p. 469; Code of Civ. Pro., § 1189. SUPREME COURT — State of New York, County of (Fulton) John Hancock i j^^j^g^f September 11, 1884, at 10 o'chci, agst. I ^ 2f Nathan Aaroneon. The issues in this action having been tried at a (Circuit) Court held at the court-house in the (village) of (Johnstown), in and for said county, on the (10th) day of (September), 1884, before the Hon. J. S. Landon and a jury; and the jury having found a verdict for said plaintiff, and against the said defendant herein, for $987.45 dam- ages, which verdict has been entered in the minutes of said court, Now, on motion of (Splenlow & Jorkins), plaintiff's attorneys, it is 78 618 Appendix of Foems. hereby adjudged by the court that tlie plaintiff, John Hancock, re- cover of the defendant, Nathan Aaronson, the sum of 1987.45, found by said jury, together with $ for plaintiff's costs and dis- bursements, as adjusted, amounting to the sum of , and that he have execution therefor. EGBERT HUMPHREY, Jb., Clerh No. 136. Judgment for plaintiff on report of referee. See ante, p. 469; Code of Giv. Pro., § 1328. SUPREME COURT — State of New York, County of (Albany). Peter Dumpily agst. Jose Carrillo. Judgment Septemter 11, 1884, at 11 h. 30 TO., A. M. This action having been referred to (Harrold Skinpole,) Esq., as (sole) referee, to hear and determine the same, and his report having been filed, whereby he finds to be due from the defendant to the plaintiff the sum of (13,500), Now, on motion of (Arthur Poinset), plaintiff's attorney, it is adjudged by the court, that the plaintiff, Peter Dumphy, recover of the defendant, Jose Carrillo, the said sum of $3,500, together with , costs and disbursements, amounting in the whole to the sum of , Clerk. No. 137. Judgment for defendant for costs. SUPREME COURT— State of New Yobk, County of (Mont- gomery). ■t and Martin J. Black Judgment , 188 John R. Stewart and Martin J. Black agst. Thomas Smith. This action having been tried by a jury at a Circuit Court held at the court-house in (Fonda), in and for the said county, on the (7th) day of (October), A. D. 1884, before the Hon. (Frothingham Fish), Justice, and the jury having rendered a general verdict for said de- fendant and against said plaintiffs therein, and said verdict having been entered in the minutes of the said court, Now, on motion of , defendant's attorney, it is hereby ad- Appendix of Foems. 619 judged by the court that the defendant, Thomas Smith, recover of the plaintiffs, John K. Stewart and Martin J. Black, the sum of for his costs and disbursements in said action. , Clerh. No. 138. Judgment for defendant on report of referee. SUPEEME COUET — State of New Yobk,. County oe (Oneida). John Doe agst. Richard Roe. Judgment , 188 This action having been referred to , as sole referee, to hear and determine the same, and his report having been filed, whereby he finds that the defendant is not indebted to the plaintifl (upon the promissory note set forth in the complaint in this action), Now, on motion of , defendant's attorney, it is hereby adjudged by the court that the defendant, Eichard Eoe, recover of the plaintiff, John Doe, the sum of , for his costs and disbursements in this action. , OUrh. MISCELLANEOUS. No. 139. Demand that place of trial be changed to proper county. See ante, p. 38; Code of Civ. Pro., §§ 985, 986. SUPEEME COUET. ,Tohn Doe agst. Richard Roe. I hereby demand that the place of trial of this action be changed to the proper county, viz. : the county of (Date.) (Signatare of defendanVs attorney.') To D. M., Esq., Attorney for the plaintiff. 620 Appendix of Forms. No. 140. Deposition of party or witness before trial. See ante, p. 95 ; Code of Civ. Pro., §§ 870 et seq. {Title of the cause.) Deposition of , taken before , referee, on this day of , 1884, on behalf of the , pursuant to an order (or a stipulation) made in the above-entitled action, bearing date on the day of , 1884. The said , being duly sworn and examined on the part of the , says : ( Give testimony in narrative form. ) And on his cross-examination by the , says : {Give testimony on cross-examination in narrative form.) {Jurat.) {Signature of party or witness examined.) No. 141. Certificate to deposition of party or witness before trial. See ante, p. 94 j Code of Civ. Pro., § 880. {Title of the cause.) {Venue.) I, , referee, hereby certify that , the witness whose depo- sition is herein contained, personally appeared before me at , in the of , county of , at o'clock in the noon, and after being sworn " to testify the truth, the whole truth, and noth- ing but the truth,"^ was examined by the respective parties, and did depose to the matters contained in the foregoing deposition, and did in my presence subscribe the same, after it had been read to him (and did iudorse the exhibits annexed thereto). And I further certify that appeared in behalf of the , and that appeared in behalf of the {Date.) {Signature of referee.) No. 143. Questions of fact proposed for trial by a jury. See a7ite, p. 65 ; Eule 31 ; Code of Civ. Pro., §§ 970, 971. SUPEEME OOUET. Henry Allerton agst. Geo. Allen, Mary Allen, and another. I Questions of fact involved in the issues of the above-entitled action proposed by the defendants herein for submission to a jury for trial : I. Was the sum of $3,000, which was received by the plaintiff from Appendix of Foems. 621 the defendant George Allen, on the 13th day of August, 1883, intended by said parties as a loan ? II. Was the said sum of $3,000 paid to the plaintiff by the defendant George Allen, as the purchase-price of the lands described in the war- ranty deed mentioned in the plaintiff's complaint ? III. Was the deed described in the complaint intended by the parties to that instrument as a security for money loaned ? No. 143. Certificate of disqualification of judges. See ante, p. 27 ; Code of CIt. Pro., § 273. SUPERIOE COUET OP THE CITY OP John Doe agst. Richard Roe \ It having been satisfactorily made to appear to us, the undersigned judges of the Superior Court of the city of that all (but one) of the judges of said court are incapable of sitting upon the trial of the above-entitled action : Now, therefore, we hereby certify the fact so to be, to the end that the said action may be removed from our said court to the Supreme Court. (Date.) (SigTMtures.) No. 144. Referee's oath. See ante, p. 263 ; Code of Civ. Pro., § 1016. (Title of the cause.) {Venue.) I, J. C, the referee appointed in the above-entitled action, being duly sworn, do say that I will faithfully and fairly try the issues and determine the questions referred to me in this action, and a just and true report make therein, according to the best of my understanding. {Jurat. ) (Signature of referee.) 622 Appendix of Forms. No. 145. Consent to receive a gross sum in lieu of dovrer. See ante, p. 337; Code of Civ. Pro., § 1617. {Title of the cause.) I, , the plaintifi in the above-entitled action, pursuant to sec- tion 1617 of the Code of Civil Procedure, do hereby consent to accept a gross sum, to be ascertained according to law, in full satisfaction and discharge of my right of dower in the real property described in the complaint in this action. {Date.) {Signature.) State op New Yore, ) County of , j" *^- ■ On this day of , in the year 188 , before me, the sub- scriber, personally came ,to me known to be the person described in and who executed the within instrument, and acknowledged that she executed the same. {Siyiiaiute of officer.) No. 146, Referee's report of sale upon foreclosure^ See ante, p. 350. ( Title of ihe cause.) To the Supreme Court ; In pursuance and by virtue of a judgment of this court, made in the above action on the day of , in the year 188 , by which it was, among other things, ordered and adjudged, that all and singu- lar the mortgaged premises mentioned in the complaint in this action, and hereinafter described, oi so murh tlicieof as might be sufficient to raise the amount reported due to the plaintiff as theiein mentioned for principal and interest, and the costs in the action, and which might be sold separately without material injuiy to the parties interested, be sold at public auction by or under the duection of the subscriber, a referee duly appointed therein for the purpose of making such sale ; that the said sale be made in the county wheie the said mortgaged premises, or the greater part thereof, aie situated ; that the referee give public notice of the time and place of such sale according to the course and practice of this court, and thii plaintiff or any of the par- ties to this action might become the purchaser or purchasers; that the referee execute a deed or deeds to the purchaser or purchasers of the mortgaged premises on said sale, and that the said referee pay to the said plaintiff or attorney out of the piooeeds of the said sale costs in this action to be adjusted, and also the amount so reported Appendix of Foems. 623 due as aforesaid, together with legal interest thereon from the date of said report, or so much thereof as the purchase-money of the mort- gaged premises would pay of the same, and that the referee take re- ceipts for the amount so paid, and file the same with his report ; and that he pay over the surplus moneys arising from the said sale, if auy there should be, to the treasurer of the county of within five days after the same shall be received and ascertainable, subject to the further order of the court. And whereby it was further ordered and adjudged, that if the moneys arising from the said sale should beinsuf-/ ficient to pay the amount so reported due to the plaintiff, with the interests and costs aforesaid, that the said referee specify the amount of such deficiency in his report of the sale ; I, the subscriber, referee as aforesaid, residing in , do respectfully certify and report, that having been charged by the attorney for the plaintiff with the execution of said judgment, I advertised said premises to be sold by me at public auction, at the , in the of , on the day of , in the year 188 ; that previous to said sale I caused notice thereof to be publicly advertised for weeks succes- sively as follows, viz. : by causing a printed notice thereof to be fas- tened up in three public places in the where such premises were to be sold, and three notices fastened up in the in which the said mortgaged premises are situated, and by causing a copy of such notice to be printed once in each week during the weeks imme- diately preceding such sale in a public newspaper printed in said county of , to-wit : the , printed at , in said county, which notices contained a brief description of said mortgaged premises. And I do further report, that on the said day of , in the year 188 , the day on which the said premises were so advertised to be sold as aforesaid, I attended at the time and place fixed for said sale, and exposed said premises for sale at public auction to the high- est bidder, and the said premises were then and there fairly struck off to , for , he being the highest bidder theiefor, and that being the highest sum bidden for the same. And I do further certify and report, that I have executed, acknowl- edged and delivered to said purchaser the usual referee's deed for said premises, and have paid over or disposed of the purchase-moneys or proceeds of said sale as follows, viz. : I have paid to the attorney for the plaintiff the sum of $ , being the amount of costs of this suit, with the interest, as adjusted, and have taken a receipt therefor, which is hereto annexed. I have also retained in my hands the sum of I , being the amount of my fees and disbursements on said sale. And I have paid to the attorney for the plaintiff the sum of $ , and have taken a receipt therefor, which is hereunto annexed. I have paid to the county treasurer of county, the sum of $ , tlie surplus, and have taken his receipt therefor, which is hereto annexed. And I do further certify and report, that the moneys arising from such sale were insufBcient to pay the amount so reported due to the plaintiff, with the interest and costs aforesaid, and that dollars and ' cents is the amount of such deficiency at the date of this report. 62i Apbndix of Forms. And I do further certify and report, that the premises so sold and conveyed as aforesaid were described in said judgment, and in the deed so executed by me as aforesaid as follows, viz. ; {Describe the premises.) All of which is respectfully reported. (Date.) (Signature of referee.) (Annex receipts.) (Title of the cause.) No. 147. Bill of costs. Costs. Costs before notice of trial Costs after notice and before trial Additional defendants served Trial fee, issue of fact , Trial fee, issue of law , Allowance by statute Allowance by court Costs of motion for Trial occuj)ied more than two days Appointment of guardian for infant defendant. . . . Examination of party before trial Attending and taking deposition de bene esse Drawing interrogatories to annex to commission. . Making and serving case Making and serving amendments to case Making and serving case of more than fifty folios. Term fees, for following terms, viz.: Costs of motion for new trial, Special Term Proceedings before and after granting new trial Application for judgment on special verdict, before argument. Application for judgment on special verdict, for argument. . Appeal to General Term, before argument Appeal to General Term, for argument Term fees as follows : Appeal to Court of Appeals, before argument Appeal to Court of Appeals, for argument Term fees as follows : Preparing case on appeal to Court of Appeals Appendix of Foems. 625 Damages in Court of Appeals for delay Interest on verdict DiSBURSEMEjsTTs, as per next column Total costs and disbursements Disbursements. Eeferee's fee Commissioner's fees Clerk's trial fee Clerk's fee for entering judgment Paid for searches Paid for affidavits and acknowledgments, as follows : Serving summons and complaint Paid referee settling case Certified copies orders, as follows, viz. : Clerk filing execution and entering satisfaction. Transcript and filing Copy of judgment for roll Postage — incurred .... $ ; to be incurred . . . Juror's fees Stenographer's fees, copy Sheriff's fees on execution Sheriff's fees on attachment Sheriff's fees, terms as above Copy minutes For printing cases For printing points For remittitur For copies following papers Witnesses' fees, as per statement below 79 626 Appendix of Forms. SCHEDULE "A." Witness' fees, Circuit {or Special Term, or hearing), commenced , 18 NAMES. Residence. Miles from court-houee. Miles traveled. No. of days attended. No. 148. Execution for interlocutory costs. See ante, p. 545 ; Code of Civ. Pro., § 779. The People of the State of New York, to the Sheriff of the County of : "Whereas, in an action in the Supreme Court of the State of New York, wherein A. B. is plaintiff and C. D. is defendant, the said plaintiff, A. B., was, by an order duly made on the day of , 18 , and entered in the ofiSce of the clerk of the county of , on the day of , 18 . directed to pay to the said defendant, C. D., the sum of $ , and whereas the said sum has not been paid, although the time fixed by the order for that purpose has ex- pired (or ten days has expired since the service of a copy of the order). Now, therefore, you are hereby required to collect the said sum so due out of the personal property of the said plaintiffs (or either of them), within your county, and to return this execution, with your proceedings thereon, to the clerk of said county where said order was entered, within sixty days after the receipt hereof by you. Witness, Hon. , a justice of said court, this day of , 18 . {Signature of the cleric of the court.') (Signatvre of defendant's attorney.) INDEX. ABSENCE : Page. Of witness or counsel, as ground for postponement of trial 154 As ground for new trial ; 504 ACCOUNT • Reference to take and state 21, 305 Proceedings upon tte reference 805 What is a long account 19 Putting books of account in evidence , 188 Compelling production of books of account 83 Examination of long account essential to a compulsory reference 17 ACTIONS : liefined 1 Issues 1 When triable by jury as a right 9 When jury trial discretionary 12 When triable by the court 14 When referable 15 Where tried 23 Bemoval to another court 26 Changing place of trial of 37 Consolidation of 48 Severing actions 51 Preferred causes 129 ADDITIONAL ALLOWANCE. (See Costs.) ADJOURNMENTS : Of the term, on failure of the judge to appear 148 Of the trial, on motion 153 Grounds for 154 Application for 155 Opposing motion , 156 Order granting or refusing 157 Proceedings under the order 158 Proceedings where motion is denied 158 Costs on 157, 381 Power of Special Term to adjourn court to chambers 24 Hearing of contested motions at term adjourned to chambers. . . , 525 On trials before referees 265 628 Index. ADMISSIONS ! Page. Facts not controverted conclusively admitted 3 Judgment for part of admitted demand 5, 51, 53 Judgment for excess of plaintiff's claim after admitting counter-claim. . . 5 How far a demurrer operates as an admission 138 Of the genuineness of a paper 116 ADVICE OF COUNSEL : How alleged , 44, 45 AFFIDAVITS : Title 519 Venue 519 Eecitals 519 Must state facts, and not conclusions 519 When facts must be stated positively 530 Requisites of affidavit on information and belief 520 Must be folioed 520 Signature of deponent 520 Signature of officer before whom taken 521 Omission of jurat 531 Who may take 531 Includes verified pleading 522 I On ex parte application 533 ^ Appointment of referee to take 533 Service of 523, 588 To oppose motion 538 For removal of cause to another court 28, 30, 33 For stay of proceedings 36 For change of venue 39, 44 ' For consolidation 49 ' Of authority to offer judgment 61 1 For a reference of the issues , , 70 \ To procure special jury 77 For order directing witness to attend with papers 85 For order vacating subpoena duces tecum, etc 86 For the examination of a party or witness before trial 87 For a commission 99, 107, 108 To suppress deposition , 113 To vacate order for discovery 131 To punish disobedience to order for discovery 134 To obtain preference on the calendar 133 Of merits 40, 134 For postponement of trial 155 Of mistake in announcing verdict 347 To set aside report of referee , 294 For anew hearing 276, 304 On application for judgment in foreclosure 343, 458 For additional allowance of costs by the court 419 On taxation of costs 480, 431 Index. 629 AFFIDAVIT OF MEEITS : Page. Service of 134 When not required 134 Once filed and served suificient 89 Requisites of 40 AFFIRMATIVE . Party holding, has the right to open and close 170, 233 When a party holds the affirmative 170, 171, 234 Party holding, must put in all his evidence before resting 173 AMENDMENTS : General provisions of the Code as to 209 As to parties 209-311 Of pleading, by insertion of allegation material to the case 211 In case of variance between pleadings and pr^f 313 In case of failure of proof 215 Of verdict 346, 247 Power of referee in respect to 265 When new parties cannot be brought in by 369 Of case 493 ANSWER : Issues raised by 3 When failure to reply admits allegations in 3 When deemed controverted without a reply 3 Sham or frivolous, may be stricken out on motion 6 General denial in a verified answer cannot be stricken out as sham 11 Service of, on co-defendants, when required 8 Cannot make a non-referable action referable 17 To be liberally construed upon demurrer 140 Decision upon demurrer to the answer 140, 141 Leave to answer after decision of demurrer 143, 143 Amendment of answer on the trial 209-316 Insufficiency of, how rendered available on the trial 364 Power of referee to allow amendments of 265 In partition 325 Does not include a demurrer in certain cases 451 Extent of recovery where no answer is interposed 451 Extent of recovery where an answer is interposed 452 Proceedings where some of the defendants fail to answer 461 Code provisions as to judgment by default 463 May be stricken out for disobedience to order for discovery 124 APPEAL : From order of reference 575 Does not lie from ex parte order 540 From interlocutory judgment 360 Does not lie from order denying motion to postpone 158 From a judgment, does not bring up taxation of costs for review 433 When motion for new trial is necessary before taking appeal 551, 553 630 Index. AKGUMENT : Page. Of issue of law 137 Of motion 530 ARRAY : Challenge to 163 ASSAULT : Costs in action for 354 ASSESSMENT OF DAMAGES : On default at tlie trial 153 By the jury 344 By the court on default 464 By the clerk on default 464 Notice of 466 By referee 464, 466 ASSIGNEE : Liability of, for costs 388 ATTORNEY ■ Death of, operates as a stay of proceedings 36 Proof of authority to offer judgment 61 Power to bind client by agreement to refer 67 Absence of, as ground for postponing trial 154 Power to bind client by stipulation as to referee's fees 364 Interest of attorney in recovery does not render him liable for costs 388 Not liable for referee's fees 887 Reference of actions to recover for services of 20 Service of papers on 516 Compelling production of papers by 83 BATTERY : Costs in action for 354 BOOKS : Procuring attendance of witness with, by subpoena 83 Production of, of corporation, may be compelled by subpcena 83 May be compelled by order , 85, 86 Vacating order or subpcena requirmg production of 86 Examination of party before trial as to 87, 88 Discovery or inspection of 117 Putting books of account in evidence 188 Reading law books to jury 235 Judgment book 479 Docket book ^ ■ 481 Power of referee to compel production of 262 BRIEF : Preparation of, for trial 135 BURDEN OF PROOF : Lies with the party holding the aflBrmative 224 In actions for ncigligenco 321-334 Index. 631 CALENDARS : Page. Putting causes on calendar 128 Notes of issue , 128 Cause not on the calendar cannot be moved 128 Order of issues on tlie calendar 129 Preferred causes 129 Deferred causes 133 Calling the calendar 138 Correcting calendar 149 Day calendars 149 CAPTION : Of an order 532 Does not make an order of a judge an order of the court 532 CASE: When necessary on motion of new trial 490 Separating exceptions from case , 491 When made and served 492 Form and contents of the case 490, 492 Amendments 493 Settlement 494 Notice of settlement 494 By whom made 494 May be compelled by mandamus 495 Proceedings on settlement 495 Case must be signed 495 Filing case 495 Extending time to make, serve and file 496 CEBTIFICATE : Of disqualification of a judge to be filed 26 Of referee appointed to superintend discovery, etc 123 As to the right to costs 253, 370, 377, 384, 431 CHALLENGES : When taken 162 Kinds of 162 To the array 163 For principal cause 164 To the favor 165 Peremptory challenge 168 How taken and tried 166 Waiver of 168 CHANCERY : How far the former practice in chancery is preserved 1 Substitution of referee for master in chancery 22 CHARACTER : Evidence of, to impeach witness 195 Evidence of, to sustain witness 198 632 Index. CHABGINO THE JURY : Page. Court not bound to cliarge the jury. 235 Jury bound by tlie charge of the court 236 Nature of the charge 266 Expressions of opinion 236 Stating the effect of the verdict upon the question of costs 236 Requests to charge 237 Form of the request 237 How far the court is bound to comply with the request 237-239 That jury disregard particular evidence 308, 237 Exceptions to the charge and to refusals to charge 239-241 Recalling jury foi further instruction 243 Error in charge as a ground for a new trial 501 CLERK : Fees of, in civil actions generally 435 Fees of county clerks generally 436 COMMISSION. (See Deposition.) To examine witnesses upon interrogatories 97, 108 To examine wholly or partly upon oral questions 106 Open commission 107, 109 When issued on stipulation 110 Correcting defects in the execution of 113 COMMISSIONERS : Partition by 330 Confirmation of report of 331 Admeasurement of dower by 336 Feesof 425, 435 To take testimony of witness without the State 96-112 Feesof 424 COMPETENCY : Of witness examined before trial, objections to 95 Objections to competency, when taken at the trial 201 Howtaken 201, 203 Waiver of objection 204 EfEect of introducing incompetent evidence 498 COMPLAINT : May be stricken out for disobedience to order for discovery 134 CONCLUSIONS OF LAW : Denial of, raises no issue 4 Not admitted by demurrer 138 Requests to find 278 Statement of, in report or decision 279 Exceptions to 295 In equitable actions not admitted by default 466 Index. 633 CONCLUSIVENESS ! Page. Of tlie decision of the Special Term that au action is referable 75 Of testimony of unimpeached witness 225 Of judgment in ejectment 323 Of final judgment after partition 331 Of judgment against joint debtors not served 450, 451 Of decision of a motion 538, 540 Of finding of court or referee upon question of fact , 291 Of the report of a referee in action for divorce 460 Of the findings of a jury in equitable actions 272 Of certificate of referee appointed to superintend discovery 123 Of directions as to cost, upon taxing officer 428 Of certificate as to costs 431 CONFIRMATION : Of report of referee in dower 316 Of report as to amount due in foreclosure 319 Of report of commissioners in partition 331 Of sale in partition , 333 Of sale in dower 340 Of report of sale in foreclosure 350 CONSENT (See Stipulations): To receive a gross sum in satisfaction of dower 337 Reference by , 67 CONSOLIDATION : Removal of a cause to another court for the purpose of 32 What actions may be consolidated 48, 49 What actions may not be consolidated 48, 49 Practice on the motion 49 Request to consolidate 49 Motion when and where made 49 Contents of moving papers 50 Costs upon granting order for 50, 51 CONSTRUCTION : Of pleadings on trial of demurrer 138 Of report or decision 290 CONTEMPT : Disobedience to order directing discovery or inspection , 124, 125 Disobedience to subpoena 81 CONTRIBUTORY NEGLIGENCE : Absence of, not presumed 223 Absence of, must be shown by plaintiff in action for negligence 221 Of plaintiff a ground for nonsuit 223 When a question of law, and when a question of fact 233, 333 CONVICTION : For crime or misdemeanor, may be shoWn on cross-examination. . . .177, 196 80 634 Index. CORONERS : Page. Feesof 445 CORPORATIONS : Action to vacate charter, etc., triable of right by a jury 9 Action to try title to corporate oflfice, triable by a j ury 10 Place of trial of action to charge of officers of, with corporate debt 41 Residence of foreign corporations 43 Residence of domestic corporations 43 Place of trial of an action by a non-resident against domestic 43 Production of books may be compelled by subpoena duces tecum 83 Produtition of books may be compelled by order 85 Examination of officers of, before trial 88, 93, 94 Order for inspection of books of a foreign corporation 134 Preference of actions in which corporations are parties 139-131 Presentment of claim against municipal corporation before suit 353, 376 Liability of municipal corporations for costs 376 Costs in actions by the people against 392 In actions by or against counties, towns, etc 894 , Judgment in actions against 474 CORRECTION : Of defects in execution of commission 113 Of verdict 246 Of referee's report 395 COSTS : On trial of issue of law by the court or a referee 145 In case of judgment absolute ; 145 In case the party in fault amends 145 In case an issue of fact remains undisposed of 146 How collected 146 Power of the referee to award 145 Right to costs purely statutory 353 History of statutes as to costs 353 How far regulated by the Code 353 When plaintiff entitled to costs as of course 353 Pre-requisites to plaintifi 's right 355 By what statute determined 355 In real actions 356 In actions to recover a chattel 360 In actions where the people are a party 360 In actions for personal wrongs 361 In actions against next of kin, etc 361 In actions for causing death by negligence 362 Where the amount involved exceeds |400 862 In actions against executors, etc 364 Where a money judgment only is demanded 364 Against two or more defendants 365 Where defendant entitled to costs as of course 366 Rule as to two or more defendants 367 When both parties entitled to costs as of course 368 Index, 635 COSTS — (Continued) : Page. Special provisions affecting the right to costs 369 Several actions brought on the same instrument , 369 After discontinuance upon answer of title 370 After tender 58, 373 After ofEer to compromise .59, 373, 375 After offer to liquidate damages 59, 874 In action to charge joint debtors not summoned 375 Where part of plaintiff's claim is admitted , 375 In actions against school officers 376 Certificate entitling a party to costs 253, 377 Certificate exempting party from costs 378 In the discretion of the court 379 In equity cases 379 In actions against executors 380 In actions to admeasure dower 380 In matrimonial actions 353, 380 In certain actions of partition 380 Upon the trial of an issue of law 145, 381 Upon a motion 381 As a condition of granting an adjournment 381 Exercise of the discretion 381 Rule as to two defendants 383 Must be expressly awarded 383 Review of the discretion 883 Against whom awarded and who liable to pay 384 In actions by or against executors, etc 384 In actions by or against a trustee, etc 886 In case of transfer, etc. , of cause of action 388 Against person beneficially interested 889 In case of infant parties 390 In actions for partition 391 In actions for dower 391 In actions to determine claims to real property i ; . . 393 In joint action by creditor against next of kin, etc 393 In action to recover property attached 893 In action by people against corporation, etc ^ ... 393 In action by people on relation of private person 393 In action by people for benefit of a county, etci 393 In actions by or against counties, towns, etc 894 In case of notice of no personal claim 394 Amount of costs and items taxable 394 Code provisions as to the amount of costs 394 For proceedings before notice of trial 397 For additional defendants served 398 For proceedings after notice and before trial 398 For taking deposition and drawing interrogatories 899 Trial fee 400 On motion for a new trial 403 Term fee 403 Increased costs 404 636 Index. COSTS — (Continued) 1 Page. Increased, when allowed by statute 404 Does not extend to disbursements. , 405 Increased damages do not give increased costs 405 Not given in equity actions 405 When the right to, is lost 405 Are a matter of absolute right 406 Of several trials 406 Additional allowance by statute 407 When a matter of right 407 Actions not within the statute 408 No application to the court necessary 409 How computed and taxed 409 Additional allowance by the court 409 General provisions of the Code 409 How far discretionary 409 Can only be made in an action 410 Can be but one extra allowance 410 Where action has been severed 410 After acceptance of offer of judgment 410 On discontinuance 410 Not allowed on demurrer 411 To whom granted 411 In action of foreclosure 412 In partition 412 In difficult and extraordinary cases 413 Basis of computation 414 Amount allowed 417 Application for the allowance 418 Disbursements 420 To be included in bill of costs , 420 Cannot be recovered independent of costs 420 After offer of judgment 420 Must be necessary and reasonable in amount 420 Witness' fees 421 Fees of referees and other officers 423 Fees and expenses of commissioners 424 Fees for publication 425 Fees for copies of papers 425 Printing expenses » 425 Other expenses. 426 Taxation of costs , 427 By whom taxed 427 Notice 427 Powers of clerk on taxation 428 Evidence to be produced before clerk 428-432 Proceedings on taxation 428-432 Ee-taxation 432 Review of taxation 432 Entry of costs in judgment 433 Amount of fees. (See Fbbs.) 433-446 Index. 637 COSTS — (Continued) : Page. Payment of, as condition of granting new trial 510 Rule as to allowing costs on motion 533 Payment of costs imposed as a condition 534 Of motion 542 Are discretionary in the absence of statutory provisions 543 Generally awarded to the successful party 543 Rule governing the granting or denial of motion costs 542 Must be awarded 544 Amount 544 How collected 545 Stay of proceedings for failure to give security for 33 For non-payment of costs of former action 34 For non-payment of costs of motion 35 On consolidation of actions^ 50 Of interlocutory reference 304 COUNSEL FEES : May be allowed in action for divorce 353 COtTNTEB-CLAIM : Plaintiff may admit counter-claim and take judgment for excess 5 Trial of issues arising on a counter-claim, mode of , . 7 COUNTY JUDGE : Jurisdiction of, to make orders , 537 CREDIBILITY (See Eyidbnce) : Of impeached witness a question for the jury 190 Of unimpeached witnesses 325 How far the court may charge as to credibility of witnesses 336 CREDITOR'S SUIT ■ Costs in 379, 393 Judgment in 477 CRIME: Challenge for 164 Conviction for, may be shown on cross-examination 196 CRIMINAL CONVERSATION: Costs in action for 854 CROSS-EXAMINATION (See Evidbnce) : Mode of conducting 176-180 DAMAGES : Proceedmgs on offer to liquidate 59 Assessment of, by jury 844 To be fixed by verdict, report or decision in replevin 250, 283 For withholding property in ejectment 250, 323 Double, treble or increased damages, how awarded 281 Assessment of , by referee 283 Rate of damages recoverable 453 638 Index. DAMAGES — (Continued): Page. Assessment of, on default 464 Special damages may be alleged by way of amendment 213 Allegations respecting damage, how far issuable 4 Excessive damages as a ground for a new trial 503 InsuiBcient damages as a ground for a new trial 503 DEATH : Of attorney, stay of proceedings on 86 Of party on ejectment, proceedings upon 53 Of judgment-debtor wbile in custody, right of sheriff to poundage 445 I recoverable for act causing 454 DECISION : On trial of an issue of law , 141 Direction as to judgment to be entered 143 When to be rendered and filed 141 On trial of an issue of fact , 279 Must state separately facts found and conclusions of law. 379 SuflBciency of findings of fact 279 What facts need not be found 380 When no findings are necessary 381 Where increased damages are given by statute 381 In ejectment. ." 383 In replevin 383 By whom drafted 383 Time of making and filing , 283 Eemedy for failure to file 284 Construction of 290 Conclusiveness of 291 Exceptions to findings or refusals to find 295 DECREE. (See Judgment.) DEFAULTS : Proceedings upon default at the Circuit 153 When party may take 153 On trials before referees 365 Upon the hearing of a motion 529 Motion to open 159 Extent of relief granted in case of 451 Proceedings where some of the defendants are in default 461 Code provisions as to judgment by default 463 DEFENDANTS : Determination of rights as between co-defendants 7 Service of answer on co-defendant, when necessary 8 Trial of question of title in partition between 8 Costs to the defendant as of course 866 DEFINITIONS : Account 19 AflBdavit 523 Array ,.,...,, 163 Index. 639 DEFINITIONS — (Continued) : Page. Civil actions 1 Costs 353 Cumulative evidence 508 Decision 379 Enumerated motions , 513 Expert , . 183 General verdict 248 Injury to property 57 Inquest 150 Interlocutory judgment , 249, 448 Involved , 415 Issue 3 Judgment , , 448 Non-enumerated motions 513 Order 583 Personal injury , , 57 Relevant 201 Special verdict 248 Trial , 6 DEMUEREB : Issues of law can only be raised by demurrer , . . . .3, 186 Judgment on frivolous demurrer may be ordered on motion , 6 Where and at wbat term tried , 38, 186 Notice of trial 136 Order of disposing of issues of law and fact 6, 136 How brought to trial before a referee 137 Powers of a referee upon the trial of a demurrer 137 General practice on the trial of a demurrer 137 How far a demurrer operates as an admission 188 To complaint, when overruled 138 Does not lie to demand for relief. . , 189 Complaint may be attaclsed on trial of demurrer to answer 141 Report or decision upon the trial of a demurrer 141 Judgment on decision or report 143 Costs upon the trial of a demurrer 145 DEPOSITION : Examination of party or witness within the State before trial 87 Application for the order 87 Contents of the moving papers 88 Who may make the affidavit 89 When motion may be denied or order vacated 90 How far the court has discretion to grant or deny 90 When party not entitled to the order 91 Contents of the order 91 Order need not be entered 93 Service of the order 93 Who may be examined 93 The examination. . , , . 94 640 Index. DEPOSITION— (Continued): Page. Of witness, within tlie State, taken on stipulation 95 Contents of the stipulation 95 Compelling attendance of witnesses 96 No order for examination required 96 Filing depositions, etc 96 Of witness without the State 96 Three classes of commissions recognized by the Code 97 Commission to examine foreign witness on interrogatories 97 In what cases authorized 97 Can issue only in an action 98 In what cases denied 98 Application for the commission 99 Opposing the application 100 Grounds for denying the application 101 The order 101 Terms imposed 101, 102 Entry of the order 103 The conmiission. 103 Settling interrogatories, etc 104 Execution and return of the commission 106 Commission to examine wholly or partly upon oral questions 106 In what cases authorized 106 When a matter of discretion, and when a matter of right 106, 107 Application and order 107 Notice of time and place of examination 107 Open commission, when issued 107 Application for 108 Order for 108 Form of the commission and proceedings thereunder 109 Order directing depositions to be taken 109 In what cases authorized 109 Contents of the order 110 Entry of the order. 110 By whom deposition taken 110 Notice of time and place of taking deposition 110 Commission, or order to take deposition, by consent 110 Form of the consent Ill Form and contents of order Ill Proceedings under the order Ill Letters rogatory, when issued 112 Taking and returning depositions 112 Disposition of depositions taken 112 Are open to the inspection of the parties , 113 Motions to suppress 113 Putting deposition in evidence 189 Taking deposition to be used on motion 528 Application for appointment of referee to take 523 Order may be made ex parte 523 Proceedings under the order 523 Costs of taking depositions and drawing interrogatories 399 Index. 641 DISBURSEMENTS. (See Costs.) DISCOVERY OR INSPECTION: Page. Power to compel discoFery. 117 Cases in wHcli compelled 118 Remedy not limited by rules of practice 118 Application for tlie order 119 Contents of moving papers 119 Order to sliow cause 120 Motion to vacate tlie order 121 When notice required 122 Proceedings on return of the order to show cause 122 Of partnership books 122 Of books of a corporation 123 Denial of entries, books or papers, effect of 123 Order for discovery or inspection 123 Enforcement of the order 124 Effect of papers produced , 125 Referee may be appointed to superintend 123 Fees of referee 123 DISCRETION : When jury trial a matter of 12, 63 Reference of referable action discretionary 17, 75 Order severing action when discretionary , 51 Ordering commission to issue discretionary 101, 109 Order to inspect books and papers discretionary, , 120 When dismissal of complaint not matter of discretion 169 As to limiting number of witnesses 174 As to permitting leading questions , . . . 176 As to allowing discrediting questions on cross-examination 178 As to hearing further testimony after submission of case 172 As to confining counsel to legitimate cross-examination 179 As to form of questions preliminary to impeaching witness 191 As to limiting number of impeaching witnesses 196 As to striking out evidence 206 As to allowing amendments on the trial 309 As to permitting j uror to be withdrawn 217 Granting nonsuit not a matter of discretion 219 As to sending qilestions of fact to a jury 270 As to hearing motion for new trial on the minutes 371, 485 As to awarding costs 379 As to the amount of an extra allowance of costs , , 418 Right of party holding affirmative to open and close not a matter of discre- tion.... ..,.,. 233 As to directing exceptions to be heard at General Term 487 As to granting new trial upon newly-discqvered evidence , , 507 As to costs of action, 543 DISMISSAL ! Of complaint at the trial 169 Motion to dispiiss, when made 169, 234 For failure to prove p, cause of action 218 For failure to prove the cause of action alleged 230 81 642 Index. DISMISSAL — (Continued) : Page. In actions for negligence 221 By whom tlie motion should be made 225 Motion to dismiss, liow made 226 Motion to dismiss equivalent to motion to nonsuit 218, 231 Motion to dismiss on trial before referee 264 DISQUALIFICATION : When a judge is disqualified from sitting or deciding a cause 26 Removal of cause to another court for sueh disqualification 26 What persons disqualified from serving as referees 73, 293 Of jurors 161 DIVORCE : Issue of adultery in divorce triable by a jury 10 Right to a jury in action to annul a marriage 10 Settlement of issue on question of adultery for jury trial 65 Reference by consent not a matter of course in divorce, etc 16, 67 Application for a reference in matrimonial actions 67 Proof of service of the summons in divorce 67, 68 Court cannot appoint a referee nominated by either party 68 A reference of the issues in, must be to hear and determine 74 Testimony and other proceedings on reference to be certified to the court. 282 Judgment in, must be rendered by the court ... 282 Report of referee in, must be the same as in other actions 282 Costs in, how far controlled by statute i 352, 380 Final judgment may award costs to or against either party 380, 473 Costs not allowed against a wife having no separate estate 382 Costs given to wife obtaining a decree 382 Application for judgment in matrimonial actions 460 How far the court is bound by the report of a referee in 460, 461 Form and contents of judgment in matrimonial actions 472 Provisions in the judgment in respect to the support, etc., of children. . 473 DOCKET : Clerk required to keep docket-book 481 When judgment must be docketed 481 Judgment, how docketed 482 Effect of docketing 482 Docketing judgment on transcript 482 Docketing judgment against joint debtors 482 DOCUMENTARY EVIDENCE, (See Evidekce.) DOUBLE COSTS : When allowed , , 405 DOWER : Action for dower trjable as a right by » jury 9, 336 Special Terms in New York city for the trial of actions for 24 How and when made ^ preferred cause 131, 132 Exception to a finding that widow is entitled to 298 Reference to ascertain lien§. In case of sale 807, 339 Index. 643 DOWER — (Continued) : Page. Interlocutory judgment wliere consent to receive a gross sum is not filed. 336 Appointment of referee or commissioners to admeasure dower 336 Reference to admeasure dower 315, 336 Oath of referee 315 Proceedings on the reference 315 Report of referee 316 Setting aside or confirming report 316 Fees and expenses of referee 317, 337 Admeasurement by commissioners 336 Outline of proceedings by commissioners 336 Final judgment on confirmation of the report 337 Final judgment when admeasurement is impracticable 337 Taxation and payment of fees of referee or commissioners 337 Proceedings upon consent to receive a gross sum in lieu of dower 337 When consent to be filed 337 Requisites of the consent 337 Service of copy consent and notice of filing 337 Application for leave to pay gross sum, when and where made 338 Court must ascertain value of dower right 338 Compelling payment of the sum ascertained 338 Reference to ascertain the value of plaintiff's right 338 Reference to ascertain whether dower can be set off 339 Interlocutory judgment for sale if dower cannot be set off 339 Stipulation to take a vacant or unimproved lot in lieu of 339 Interlocutory judgment when such stipulation is given 339 Direction where the property is subject to a superior lien 340 Sale, conveyance and report ... 340 Proceedings upon confirmation of the sale 340 Partition how made where a party has a right of dower in the property . . 330 Proceedings to satisfy or protect a dower right after sale in partition . 334, 335 Wife may release her inchoate right of dower to her husband in partition. 335 Costs in action to admeasure dower are discretionary , 380, 391 EJECTMENT ■ Actions of ejectment triable by a jury 9, 320 Severing the action where defendants occupy distinct parcels in severalty . 53 Severing the action after the death of a party, etc. , 52 Proceedings to obtain a severance of the action . , 54 Compelling plaintiil to elect against which defendants he will proceed. . 216 Verdict in ejectment 350, 321, 333 Report or decision in ejectment ,. 382, 321, 322 Right of action for non-payment of rent, 320 Notice of intention to re-enter , 320 Dismissal of complaint on tender of rent, interest and costs 321 Tender of rent, etc., after judgment 331 Proceedings after tender to regain possession. . , . . , 321 Conclusiveness of the final judgment , 323 New trials in ejectment , . . , 333 As a matter of right on pa^yment of costs and damages 323 Second new trial a matter of discretion 323 Third new trial, when ordered 323 644 Index. EJECTMENT — (Continued) : Page. New trial in, effect of certain disabilities on tie time in whicli to move. . 324 Not granted where the action is for non-payment of rent, etc 324 Final judgment for defendant must award restitution, etc 324 Defenses authorized upon a new trial 324 Costs given to the plaintiff as of course on recovering judgment .... 854, 856 Given to defendant as of course on recovering judgment 366 Amount of costs given by the statute 894 After appeal to the General Term 407 Action for equitable relief cannot be transformed to ejectment by amend- ment 266 ENTRY : Of judgment 478 Notice of 483 Of orders 585 EQUITY : Jury trial never a matter of right in 10, 12 When equitable action may be referred 16 Effect of admitting incompetent evidence in equitable actions 268 Want of parties no ground for dismissing equitable action 268 Conclusiveness of findings of a jury in 373 Costs in equitable actions discretionary 879 Relief in, must be consistent with case proved 11, 452, 453 Default of defendant in, does not entitle plaintiff to judgment as of course . 467 Effect of joinder of legal and equitable causes of action 16 Granting new trial in equity cases 498 When decree in, takes effect 480 EVIDENCE : Copies or transcripts of records, etc., as evidence 115, 188 Secondary evidence of paper, after notice to produce 116 General rules as to the order of introducing 173 Party holding the affirmative should exhaust his evidence before rest- ing..,.., 172 What is meant by rebutting evidence 173 Order of proof a matter of discretion with the court 173 General outline of the mode of presenting evidence 173 Liniiting number of witnesses examined 174 Direct exjimination 175 Rule as to allowing leading questions 175 Party cannot cross-examine his own witness 176 Should be confined to party's own case. 176 Cross-examination , 176 Object of 176 What may be shown on 176, 177 Limit of legitimate cross-examination as to the issues 178 Should be ponfined to the matters stated on the direct 178 Effect of cross-examining as tp new matter 179 How far within the control of the court 179 Index. 645 EVIDENCE — (Continued) : Page. Cross-examination, latitude allowed on 179 Recalling witness for purpose of 180 JRe-direct examination 180 Object of 180 Scope of 180, 181 Examination of expert witnesses 182 To what subjects confined 182 Competency of expert 182 When expert may give an opinion upon the facts 183 Putting hypothetical questions , 183 Cross-examination of experts 184 Use of memoranda as evidence 184^187 Use of memoranda to refresh recollection 184-187 Introduction of documentary evidence 187 Preliminary evidence to identify paper, etc 187 Calling subscribing witness 188 Putting books of account in evidence 188 When documents to be put in evidence 189 Putting deposition in evidence 189 Impeachment of witnesses 190 Different modes of impeaching witnesses 190 Credibility of impeached witness a question for the jury 190 Proof of acts done or statements made out of court 190 Calling attention of witness to conflicting declarations, etc 191 What conflicting statements may be shown 193 Proof of contradictory testimony on a former trial 193 Proof of interest, hostility or bias of the witness 193 Evidence of bad character of the witness 195 Party cannot impeach his own witness 197 Counteracting impeaching evidence 198 Objections to the admission of evidence 300, 367 When taken 201 How taken ^ 201, 203 Exceptions to rulings upon the admission or rejection of evidence. . .203, 267 Waiver of objections and exceptions 204 Motion to strike out or disregard evidence 205, 387 On taxation of costs 430-432 Improper rejection or reception of, as ground for new trial 498 Newly-discovered evidence as ground for new trial 507 What amounts to a failure of proof 214 EXAMINATION : Of a party or witness before trial 87-96 Of witness upon the trial 173 Direct examination. 175 Cross-examination 176 Re-direct examination 180 Of expert witnesses , 183 646 Index. EXCKPTIONS: Page, To decision denying motion to postpone trial 158 To tlie decision of tlie trial of a challenge. 168 To denial of right to open and close 170, 233 To rulings admitting or excluding evidence upon the trial 203 How waived , 204 To refusal of judge to instruct jury to disregard evidence 206 One proper exception sufficient 208 To refusal to dismiss complaint 213 To denial of nonsuit 227 To refusal to submit questions to the jury 280 To the direction of a verdict 230 To order setting aside verdict and directing judgment 233 To the charge to the jury and to refusals to charge 239 To rulings on a trial by a referee 267 To findings or refusals to find on trial by court, etc 29b To report or decision, how taken 296 Effect of insufficient exceptions 299 To report upon reference other than of the issues 303 To improper allowance of costs 383 To be included in judgment- roll 480, 495 To be inserted in the case 490, 493 Separating case and exceptions 491 Serving case and exceptions 493 Amendments to case and exceptions 493 Settlement of case and exceptions 494 When failure to except does not prevent review 501 Review of exceptions taken upon a trial 253 EXECUTORS AND ADMINISTRATORS : Costs in actions by or against , 864, 380, 384 EXEMPTION : Of trial jurors 159, 161 EXPERTS : Examination of expert witnesses 183 Proper cases for expert testimony .' 183 Showing competency of . . 183 When hypothetical questions must be put 183 What facts may be assumed in hypothetical questions 183, 184 Only legal fees of, can be taxed 426 FACT : Issues of, how raised 3 Non-issuable facts 4 Order for trial of questions of, by jury 63 Trial of specific questions of, by jury 370 Trial of specific questions of, by referee 375 Requests to find facts 278 Statement of facts, in report or decision 279 Statements of, in affidavits 519 Motion for new trial, when necessary to review facts 251 Index. 647 FALSE IMPRISONMENT : Page. Costs in action for 354 FAVOR : Challenge to the 165 FEES: Referee's fees generally 433, 433 Stipulations as to 264, 438 Who liable for 287 Upon sale of real property 484 For oaths and acknowledgments 434 Surveyor's and commissioner's fees 435 Clerk's fees 485 SherifE's fees 439 Coroner's fees 445 Of trial jurors 446 Of printers 446 Of witnesses 431, 446 What fees are taxable as disbursements 420 Witness' fees 431 Fees of referees and other officers 433 Fees of commissioners 424 Fees for publication 435 For copies of papers 425 Prospective charges 435 Trial fee 400 Term fee 403 FEIGNED ISSUES ; Chancery practice as to, how far retained 373 FINDINGS OF FACT : Requests for 278 How stated in report or decision 379 When not required 281 Construction in favor of 290 Conclusiveness of 291 Review of 293 Exception to 295 FORECLOSURE • Action not triable as of right by a jury 1 341 Action to recover deficiency on, when triable by jury 9 Terms in New York city for the trial of actions of 24, 35 Consolidation of actions of foreclosure 48 Action to foreclose a mortgage is not for the recovery of money only. ... 57 Tender after suit brought not authorized in foreclosure. 57 Reference to make computations in foreclosure 817, 343 Application for the reference 317 Referee must be selected by the court 318 Proceedings on the reference 318 Report of referee 319 C48 Index. FORECLOSURE — (Continued) : Page . Material issues in, must be tried by the court or referred 341 Inquest on failure of defendant to appear at the trial 341 Proceedings where some of the defendants are infants, absentees, etc . . . 341 Proceedings where some of the parties make default 341 Notice of pendency of the action 343 Dismissal of the complaint on payment of amount due, etc 343 Application for judgment 343 Judgment of foreclosure, contents of 844-347 Order of sale in case of successive grantees or mortgagees 346 Eight of prior mortgagee to have his mortgage satisfied 346 Junior mortgagee cannot compel the foreclosure of the prior mortgage . . 347 Stay of proceedings on the judgment 347 Sale in foreclosure 313, 348 Filing or recording mortgage and executing conveyance 848 Requisites of the conveyance on foreclosure 349 Effect and force of the conveyance 349 Disposition of the proceeds of sale 349, 350 Report of sale 350 Confirmation of the report 350 Additional allowance of costs by statute 407 Additional allowance by the court 409, 413 Expenses of filing or recording mortgage 427 FOREIGN JURY (See Juky) : When and how obtained 79 FORMS : Acceptance — Notice of acceptance of offer to liquidate damages 579 Notice of acceptance of offer of judgment 580 Notice of filing consent to accept gross sum in lieu of dower 583 Affidavit 547 Of merits 547 Of service of subpceua 547 Of service of ex parte order. 548 Of personal service 548 Of service by mail 548 Of service in office, no person present 549 Of service of summons ip divorce 549 On motion to remove cause for purpose of consolidation 550 To obtain order removing cause from the County to Supreme Court . . 551 To remove cause to Supreme Court to change venue 553 To consolidate actions 553 To change venue for convenience of witnesses 554 To change venue to the proper county 555 To change venue to obtain impartial trial 555 To oppose change of venue 556 To stay proceedings 557 For examination of adverse party before trial 559 Of authority to offer judgment 559 Of acceptance of offer of judgment 559 Index. 649 FORMS — (Continued) : Page. Affidavit of authority to accept offer of judgment 560 To obtain trial of specific questions of fact by a jury 560 To obtain a reference of tlie issues 560 To oppose a reference of the issues 561 For a new bearing after trial of specific questions by a referee 563 For a postponement of the trial — common 563 For a postponement of the trial — special 563 For attachment against witness 564 To open default at the trial 565 For a commission to examine foreign witness upon interrogatories . . 565 For order requiring production of original record at the trial 566 For order requiring production of books, etc., at the trial 566 Of disbursements 567 As to attendance of witnesses 567 To obtain preference on the calendar 568 Attachment — - Order for attachment of witness 609 Certificate — To disposition of party or witness 620 Of disqualification of judge 621 Change of venue, affidavits to obtain 554, 555 Affidavit to oppose 556 Order for 599 Order denying motion for 599 Order removing cause to Supreme Court and changing venue 596 Commission to examine witness upon interrogatories 614 To examine partly upon oral questions 615 Open commission 615 Interrogatories annexed to 616 Affidavit for commission with interrogatories 565 Notice of motion for 587 Order for 592 Stipulations for 573 Consent — To receive a gross sum in lieu of dower 622 Consolidation — Affidavit to consolidate actions . . . , 553 Notice of motion to consolidate actions 585 Order consolidating actions 597 Costs — Bill of , 624 Execution for interlocutory 626 Notice of taxation or retaxation 588 Affidavit of disbursements 567 Judgment for , 618 Default — Affidavit to open default at trial 565 Demand — for change of place of trial to the proper county 619 Notice of, of judgment for return of chattel in replevin, etc 578 Deposition — of party or witness before trial 630 Certificate to 620 Stipulation for order to take 572 Order that depositions be taken 590, 591 Divorce — affidavit of service of summons in - 549 Notice of motion for jury trial of issue of adultery 588 Order for trial by jury of issue of adultery 603 83 650 Index. FORMS — (Continued) : Page. Examination before trial — affidavit for. 558 Stipulation for order to take depositions 573 Stipulation tliat the deposition of witness be taken within the State . . 573 Order for the taking of depositions 590 Order for examination of party before trial 595 Execution — for interlocutory costs 626 Foreclosure — Order of reference in — whole amount due 605 Order of reference in — whole amount not due 605 Order of reference in — infants or absentees 606, 607 Order of confirmation in 608 Report of referee upon sale in 623 Habeas corpus ad testificandum, petition for 569 Writ of 610 Return to 611 Inspection — Petition for an inspection of papers, with copy, etc 570 Order to show cause why an inspection should not be had 610 Order for an inspection with copy, etc 593 Interrogatories to be annexed to a commission 616 Notice of settlement of 582 Judgment 617 OfEer to — by plaintiff 575 Offer of — by defendant 575 Notice of acceptance of offer of 580 Affidavit of authority to offer 559 Affidavit of acceptance of offer 559 Affidavit of authority to accept offer , 560 On offer and acceptance 617 For plaintiff upon a verdict 617 For plaintiff upon report of referee 618 For defendant for costs 618 For defendant on report of referee 619 Notice of entry of judgment , 583 Note of issue 578 Notice 575 Of trial — general 575 Of trial — for defendant 576 Of trial — for plaintiff 576 Fixing time and place of hearing before a referee 577 Of hearing before a referee 577 Countermanding notice of trial 577 Note of issue 578 Of abandonment of part of claim in replevin 578 That defendant demands judgment for return of chattel replevied, etc 578 To creditors to appear and prove liens, etc 579 Of acceptance of offer to liquidate damages 579 Of acceptance of offer of judgment 580 Of payment of money into court 580 To produce papers at the trial 580 Of time of attending to strike a jury 681 Index, 651 FORMS — (Continued) : Page . Notice of election to end reference 581 That a cause will be moved for trial on a particular day 581 Of settlement of interrogatories 583 Of filing consent to accept gross sum in lieu of dower 582 Of entry of judgment 582 Of taxation or retaxation of costs 583 Notice of motion — general ■ 583 To remove a cause from tlie County Court to tlie Supreme Court. . . . 584 To remove cause to Supreme Court to change a place of trial 584 To consolidate actions pending in tlie same court 585 To consolidate actions pending in different courts 585 To sever action in case of admitted demand 586 For a commission to examine foreign witnesses upon interrogatories. 587 For an open commission 587 For the trial of questions of fact by a referee 588 For the trial by jury of the issue of adultery, etc 588 For a reference of the issues 589 For a new hearing after the trial of specific questions by a referee . . 589 To obtain order for preference on the calendar 590 Oath of referee 621 OfEer — To liquidate damages 574 Notice of acceptance of offer 579 Of judgment 575 Notice of acceptance of offer of judgment 580 Affidavit of authority to offer judgment 559 Affidavit of acceptance of offer of judgment 559 Aifidavit of authority to accept offer 560 Judgment on offer 617 Order 590 For the taking of depositions — by the court 590 For the taking of depositions — on stipulation 591 For commission to examine witness upon interrogatories 592 That an open commission issue 592 For an inspection of papers, with copy, etc 593 For the production of books, etc. , at the trial 594 For the production of original record at the trial 594 Staying proceedings pending a motion — by county judge 595 For examination of party before trial 595 Postponing trial 596 Removing cause to Supreme Court and changing venue 596 Consolidating actions in the same court 597 Consolidating actions in different courts 597 Removing cause from County Court to Supreme Court 598 Removing cause from the Supreme to a Superior City Court 598 Changing place of trial 599 Denying motion to change place of trial 599 Preferring cause on the calendar 599 Granting leave to sever action, for judgment, etc 600 For a struck jury 601 Appointing disinterested persons to strike a jury 601 652 Index. FORMS — (Continued) ! Page . Order — For tlie trial of specific questions of fact by a jury 603 For the trial by jury of tbe issue of adultery 602 Referring tbe cause — by the clerk 603 Referring the cause — by the court, on stipulation 603 Referring cause after refusal of referee to serve 603 Referring cause after new trial granted 604 Referring cause — on motion , 604 Referring particular issues 604 Of reference in foreclosure — whole amount due 605 Of reference in foreclosure — whole amount not due 605 Of reference in foreclosure — infants or absentees 606, 607 Of reference to inquire as to creditors, etc 607 Of confirmation in foreclosure 608 For new hearing of specific questions of fact before a referee 608 For attachment of witness 609 Afiidavit of service of ex parte 548 To show cause — general 609 To show cause why an inspection should not be had, etc 610 Petitions , 569 For a writ of habeas corpus ad testificandum 569 For a discovery and inspection of papers 570 Postponement — Affidavits for postponement of trial 563 Order postponing trial 596 Preference — Afiidavit to obtain preference on calendar 568 Notice of motion to obtain preference on calendar 590 Order preferring cause on calendar 599 Reference — Affidavit to obtain reference of the issues 560 Affidavit to oppose reference of the issues 561 Stipulations to refer 571, 573 Order of reference by the clerk 603 Order of reference by the court on stipulation 603 Order referring cause, after refusal of referee to serve 603 Order referring cause, after new trial granted 604 Order referring cause on motion 604 Order referring particular issues 604 Orders of reference in foreclosure 605-607 Notice of time and place of hearing before referee 577 Notice of hearing before referee 577 Oath of referee. 621 Notice of election to end reference 581 Notice of motion for trial of questions of fact by a referee 588 Notice of motion for reference of the issues 689 Notice of motion for a new hearing 589 Order for new hearing 608 Judgment on report of referee 618, 619 Report of referee upon sale in foreclosure 622 Removal — Affidavit on motion to remove cause for purpose of consolida- tion 550 Affidavit to obtain order removing cause from County to Supreme Court 551 Index. 653 FORMS — (Continued): Page. Removal — Affidavit to remove cause to Supreme Court to cliange venue. 553 Notice of motion to remove cause 584 Stipulation to remove cause from Supreme to Superior City Court. . . 571 Order removing cause to Supreme Court and changing venue 596 Order removing cause from County Court to Supreme Court 598 Order removing cause from Supreme to Superior City Court 598 Replevin — Notice of abandonment of part of claim 578 Notice tliat defendant demands judgment for return, etc 578 Report — Of referee upon sale in foreclosure 633 Return to writ of habeas corpus ad testiflcandum 611 Settlement of interrogatories, notice of 583 Stay of proceedings, affidavit for 557 Order by county judge for, pending a motion 595 Stipulations 571 To remove a cause from tlie Supreme to a Superior City Court 571 To refer a cause 571 To refer to a particular referee 573 To try a cause elsewhere than at court-house 573 For order to take depositions 573 That an open commission issue 573 That the deposition of a witness he taken within the State 573 That a commission issue to examine a witness upon interrogatories . . 574 Subpoena — circuit 613 For reference 613 Duces tecum 613 Ticket — circuit 61.S Ticket — reference 614 Affidavit of service of 547 Taxation or retaxation of costs, notice of 583 Venue — affidavit to obtain change of 554, 555 Affidavit to oppose change of 556 Order changing 599 Order denying motion for change of 599 Order removing cause for the purpose of changing 596 Writ of habeas corpus ad testificandum 610 Of attachment against defaulting witness 611 Of subpoena 613, 613 FRIVOLOUS PLEADING : Judgment on 6 Notice of motion fot judgment 515 GUARDIAN : Liability of, for costs 390, 391 Inherent power of court to award costs to 853 Cannot be purchaser at sale under decree 314 Appointment of 390 HABEAS CORPUS AD TESTIFICANDUM : The proper remedy to compel attendance of imprisoned witness 81 654 Index. HABEAS CORPUS AD TESTIFICANDUM — (Continued) : Page. Is a State writ 82 Application for, to whom made 81 Form and contents of tbe moving papers 81 Kotice of motion not required 83 Allowance of the writ 83 Form and contents of the writ 83 How served and returned 83 Remanding prisoner 83 HEARING (See Tkial, etc.) : Appointment of time and place of, by referee 135 Notice of 126, 137 Proceedings on the hearing of motions 529 IMPEACHMENT OF WITNESSES : Modes of impeaching witnesses 190 Evidence of acts done or statements made out of court 190 Contradictory testimony on a former trial 193 Evidence of interest, hostility or bias 177, 193 Evidence of bad character , 495 Party cannot impeach his own witness 197 Counteracting impeaching evidence . , , 198 INCREASED COSTS. (See Costs.) INFANT • Cannot consent to reference 67 Authority from surrogate to bring action for partition 327 Reference in partition where party an infant 325 Investment of proceeds of sale in partition for benefit of 334 Judgment by default against Infant defendant in foreclosure 344 Guardian of infant party cannot be purchaser at sale under decree 314 Reference in foreclosure in case of infant parties 317 Appointment of guardian for 390 Costs against, how collected 390 INQUESTS : Defined ,, 150 When taken 150, 151 Proceedings on 151 Rights of defendant , , 151 Motion to set aside .' 158 INSPECTION (See Discovbey) : Of books and papers 117 INTEREST : In the eveijt of the suit may be shown to discredit witness 176, 177, 193 In the event of the suit, disqualifies j udge 26 Of officer drawing jury, no ground for challenge to the array 163 Of jurof, fi ground for challenge 164 Index. 655 INTERLOCUTORY JUDGMENT (See Judgment): Page. Defined , 259, 448 In action for partition 335, 238 In action for dower 236, 239 After tlie trial of issue of law by tlie court 143 In action to dissolve a copartnereliip 359 In an action for waste .359, 470 Review of proceedings after entry of 260 May award costs generally 467 May appoint referee to settle final judgment 468 INTERLOCUTORY REFERENCE. (See Rbfebbkcb.) INTERROGATORIES : Commission to examine witness upon 97 Settlement of 104, 111 Fees for drawing 399 IRREGULARITIES : Statement of, in order to stow cause 518 Statement of, in notice of motion 515 Judgment not impaired by informality in entering 481 Failure of referee to take oatU 363 As ground for new trial 509 ISSUES : When an issue arises 3 Wben no issue arises 4 Mode of disposing of issues raised by pleadings 5 Between co-defendants 7 When triable as of right by a jury 9 When mode of trial of , in the discretion of the court 13 When triable by the court 14 When triable by a referee 15 Where and at what time triable 23 What facts are not issuable 4 Order of trial of issues 6, 7 JUDGE : Disqualification of 36 Appointment of, as referee 73 Jurisdiction of, to make orders 526 JUDGMENTS : Defined 448 Nature of a judgment 448 May be interlocutory or final . . ; , 448 When interlocutory , 259, 448 May be for or against any of the parties 449 May grant defendant affirmative relief 449 When judgment may be rendered against one defendant, and action pro- ceed against another 450 For or against a married woman, 450 As between co-defendants 450 656 Index. JUDGMENTS — (Continued) : Page. Against joint debtors 450, 451 Extent and nature of tlie relief granted 451 In case of default 451 Where an answer is interposed 452 Rate of damages recoverable 453 Authority for the entry of judgment. , 454 Where the trial was by the court , 455 Where the trial was by a referee 455 In a matrimonial action 455 After separate trials of issues of law and fact 455 After trial of a demurrer 455 After trial by jury 455 After ofEer of j udgment 456 Application for judgment 456 Upon a verdict subject to opinion of the court 456 After appeal to the General Term 456 After several trials of issues of law and fact , 456 In equitable actions 456 After a reference of specific questions of fact 277, 457 For final judgment after interlocutory judgment 457 Motion for, on notice, must be made at Special Term 458 When made to judge out of court 458 After default by infant defendant 458 In action for foreclosure 458 Application made cannot be withdrawn without permission of court. 458 Proceedings upon the hearing of application for judgment 459 After decision of an issue of law 459 In matrimonial actions 460 Proceedings where some of the defendants make default 461 Code provisions as to judgment by default 462 PlaintifE not entitled to judgment as of course upon default in equity 466, 467 Settlement of the judgment 467 Form and contents of the judgment 468 Title and caption 468 Recitals 469 In actions to determine claims to lands 469 In actions for waste 470 In ejectment 822 In partition 838, 381, 333 In action for dower 339, 340 In action of foreclosure 344 In other real actions. . , 470 In replevin 471 In action to foreclose lien upon chattel , , 472 In matrimonial actions , 472 In actions against corporations , . . , 474 In actions against heirs, next of kin, etc , 475 In action to establish or impeach a will 476 In judgment creditor's action , 477 Index. 657 JUDGMENTS — (Continued) : Page. Judgment-roll, and proceedings upon tlie entry of judgment 478 Wlien entered on report or decision 478 Wlien entered on general verdict 479 Interest on recovery must be added by clerk 479 Entry of judgment in judgment book 479 Filing judgment-roll 480 Contents of judgment-roll 480 Judgment must be entered and docketed during office hours 480 When judgment or decree takes effect 480, 483 Informalities in entering judgment 481 Entry of judgment on offer 59, 481 Docket book and docketing judgment 481, 483 Lien of judgment, its commencement and duration 483 Notice of entry of judgment 483 When sufficient to limit the time to appeal 483 When notice can be given 484 After trial of issue of law 143 Entry of costs in judgment 433 Clerk's fees for entering 435 Offer of judgment 59 JURORS : Qualifications and exemptions of trial jurors. .... 159 Qualifications in the city and county of New Yorlc 160 Qualifications in the county of Kings 160 Disqualification from relationship 161 Officers disqualified from serving as jurors 161 Exemption from service as jurors 161 Excusing jurors from serving 163 Challenges 163 Right to correct a verdict 346 Misconduct of, amounting to misdemeanor 343 Misconduct of, as a ground for a new trial 509 Fees of 446 When taxable as a disbursement 436 JURY (See Trial by Jury) : When trial by, a matter of right 9 When trial by, in the discretion of the court 13 Waiver of the right to trial by 12 Order for trial of questions of fact by 63 In what cases authorized 63 Application for the order 64 Settlement of questions for trial 64 Order for, without application 65 Denial of the motion not conclusive . . 65 Conclusiveness of the findings 66 Procuring special or struck jury 76 In what cases authorized 76 Application for the order 77 The order 77 Proceedings to strike a jury 77-79 83 658 Index. JURY — (Continued) ; Page. Paying expense of striking jury 79 Irregularities in the proceedings 79 Foreign jury 79 Trial by 148 Calling and impaneling jury 159 Qualifications and exemptions of trial jurors {See jurors) 159 Cliallenges 162 Directing a verdict 328 Charging jury 235 Deliberation of jury 241 Taking papers to jury room 341 Communications between judge and jury 242 Interference with deliberations of jury 343 Mode of arriving at a verdict 343 Compelling agreement 344 Verdict of 345 Polling the jury 347 Trial of specific questions of fact by 270 Misconduct of, as a ground for a new trial 509 LACHES : Ground for denying change of venue 44 Ground for denying application for commission 100, 101 LEADING QUESTIONS : Not ordinarily permitted on direct examination 175 Exceptions to the general rule 175 Are within the discretion of the court 176 How far permitted upon cross-examination 179, ISO LETTERS ROGATORY : How distinguished from a commission 97 From what courts issued 112 In what cases authorized 113 Mode of taking depositions under 112 LIBEL : Consolidation of actions for 49 Costs in action for 354 LIENS : Reference to ascertain 307, 337 Judgment in action to foreclose chattel lien 473 LIS PENDENS : Contents of notice of, in foreclosure , 842 Filing 343 Proof of filing on moving for judgment 343 Fees of clerk for recording and indexing 436 Fees of clerk for canceling 437 MALICIOUS PROSECUTION : Costs in action for 354 Index. 659 MATRIMONIAL ACTIONS: Page. Riglit'to jury trial in 10 Settlement of issues for a jury trial 65 Reference by consent, not a matter of course 67 Application to refer 67 Proof of service of tlie summons 67 Affidavit of want of cohabitation 68 Referee cannot be nominated by tbe parties 68 Scope of the reference 74 Report of referee in 283 How far the court is bound by the report 460, 461 Testimony and other proceedings to be certified to the court 283 Judgment in, must be rendered by the court 383 Application for judgment 460 Requisites of the judgment 473 Provisions as to support and maintenance 473 Costs in matrimonial actions. 353, 380, 382, 473, 474 MEMORANDA : Use of, on trial 184 When proper, to refresh memory 184 Wben admissible as evidence , . . . 185 Copy cannot be read as evidence 186 Right of counsel to inspect 186 MOTION : Enumerated and non-enumerated 513 Notice of 513 When notice required and to whom given 513 Length of notice 514 Form and contents of notice 515 Service of the notice 516 Proof of service 517 Countermand of notice 518 Order to show cause 518 Motion papers 519 Affidavits (See Affidavits) 519 Service of motion papers 533 On enumerated motions 533 Deposition to be used on motion 533 Appointment of referee to take deposition 533 Practice on the application 523 Proceedings on the examination 523 At what court or term a motion may be heard 534 In the first district 524 In other districts 534 Opposing motion 538 Proceedings on the hearing 539 Default 539 Inability of judge to hear 529 Preliminary objections 529 The argument , 530 660 Index. MOTION — (Continued) : Page. Filing motion papers 535 Renewal of motions 538 Subsequent application, to wliom made 538 Penalty for renewing motion without leave 538 Statement as to prior application on ex parte motion 539 Upon new state of facts 539 Costs of motion 543 How far discretionary 542 Rules governing exercise of discretion 542 Costs on countermand of motion 518, 543 Must be awarded , 544 Amount 544 How collected 545 To remove cause to another court 36 To stay proceedings 33 To change place of trial , 37 To consolidate actions 48 To sever action or procure separate trial 51 For trial of questions of fact by a jury 63^ For a reference of the issues '. 66, 69 For a reference of part of the issues 75 For a struck jury ^ 76 For a foreign jury 79 For a writ of habeas corpus ad testificandum 81 For an order requiring the attendance of witness with papers 84 To vacate or modify such order 86 For examination of party before trial 87 For a commission to examine witness upon interrogatories 97 For an open commission 108 For order directing depositions to be taken 109 For the suppression of a deposition 113 For a discovery or inspection of books and papers 117 To vacate order for inspection 131 That cause be preferred on calendar 133 For postponement of trial 153 To dismiss complaint for insufficiency 169 To strike out or disregard evidence 205 For leave to amend on the trial 209 For a nonsuit, etc 317 For a new trial 351, 271, 384, 485 To set aside report of referee 293 For a new hearing 304 For an additional allowance of costs 409 For judgment , 456 MUNICIPAL CORPORATIONS : Costs against 376 NATIONAL BANK : Where sued 43 Index. 661 NEGLIGENCE : Page. When nonsuit should be granted in action for 331 Costs in actions for causing death by 363 Of defendant must be affirmatively proven 331 NEWLY-DISCOVERED EVIDENCE : As a ground for granting a new trial 507 NEW TRIAL : Motion for, necessary to review findings of jury upon the lacts 251 Motion for, where made 485 At the Trial Term 485 At the General Term 486 At Special Term 488 When motion must be made on a case , 490 When a case not necessary 491 MaJsing, serving and settling a case 493 When made and served 493 Form and contents of the case 493 Amendments to the case 493 Settlement of case , 494 Filing the case 495 Extension of time to make a case, etc 496 Bringing on the motion on the minutes 496 Bringing on the motion at Special Term 497 Grounds for granting a new trial 498 After jury trial in an equity cause 498 Evidence improperly received or rejected 498 Error in charging the jury 501 Excessive damages 502 Insufficient damages 503 Surprise ... 508 Newly-discovered evidence 517 Misconduct of party, officer or jury 509 Failure of court to render decision in time 284, 510 Terms imposed on granting the motion 510 In ejectment, 833 Defenses allowable on 834 Costs on motion for 396, 403 After trial of specific questions of fact by a jury. 371 After entry of interlocutory judgment 260 Motion for a new hearing of specific questions referred 376 NONSUIT : Voluntary nonsuit on jury trial 316 Not allowed after cause submitted to jury 316 Cases in which plaintiff should submit to 216, 217 Motion for 217 When no cause of action is proved 318 Refusal to nonsuit in a proper case error 219 Circumstances justifying a nonsuit 319 EfEect of failure to move for a nonsnit 220 C62 Index. NONSUIT — (Continued) : Page. Where tlie alleged cause of action has not been proven 220 When nonsuit for failure of proof is proper 316, 221 In actions for negligence 221 When to move 224 Who may move 225 Motion, how made 226 Proceedings where motion is denied 227 Proceedings where motion is granted 228 On hearing before referee 264 When no findings are necessary to sustain judgment 281 NOTE OF ISSUE : Contents of 128 When filed 128 NOTICE : To the adverse party to produce papers, etc 116 When required 116 Effect of the notice 116, 117 Form of the notice 117 Service of the notice 117 Notice once given need not be repeated 117 Of payment of money into court 58 Of acceptance of offer of judgment 61 Of time and place of striking a jury 77 Of settlement of interrogatories 105 Of time and place of examining witness under commission 107, 110 Of abandonment of claim to chattels in replevin 125 That defendant demands judgment for return of a chattel 125 Of time and place of hearing by referee 125 Of trial...... 126 Of the day in a term on which a cause will be moved 132 Of election to end reference 288 Of exception to report or decision 296 Of filing report of referee 303, 316, 319, 340 To creditors to prove liens 207 Of sale by referee 310 Of postponement of sale 312 Of filing consent to receive gross sum in lieu of dower 337 Of pendency of action 343 Of taxation of costs 427 Of retaxation of costs 433 Of the entry of judgment 483 Of execution of reference or writ of inquiry in case of default 456 NOTICE OF MOTION : When required and to whom given 513 Length of notice 514 Form and contents of notice 515 Service of notice 516 Proof of service 517 Index. 663 NOTICE OF MOTION — (Continued): Page. Countermand of notice 518 To remove cause to another court 28, 30 For a stay of proceedings 36 To change the place of trial 40 To consolidate actions 49 To sever an action 51, 53, 55 For the trial of questions of fact by a jury 64 To refer , 70 For a struck jury 77 For a commission 99 That a cause be preferred on the calendar 132 For a new hearing 376, 304 To set aside report of referee 294 To confirm report of referee 316 For confirmation of report of commissioners in partition 331 For confirmation of sale in dower 340 For additional allowance of costs 419 For judgment 456 For settlement of a judgment 467 For a new trial .... 497 NOTICE OF TRIAL OR HEARING : When to be served 126 Upon whom served 127 Sufficiency of the notice 127 Countermanding the notice 127 Renewing the notice 128 NUISANCE : Action for, triable as of right by a jury 9, 10 OATH: Of referee : 263, 302, 308, 315 Before whom taken 263 Waiver of 263 Effect of failure to take . 263 On reference to admeasure dower 315 Of commissioners to make partition 330 Of commissioners to admeasure dower 336 Fees for taking 434 OBJECTIONS : To the admission of evidence 200, 267 When taken 201 How taken 301 General objection, when insufficient 201 Examples of insufficient objections 202 By motion to strike out 205 Upon the examination of a party before trial 95 OFFER : To liquidate damages 59 Effect of acceptance or non-acceptance 59 664 Index. OFFER — (Continued) : Page. Of judgment 59 By defendant, when autliorized 59 By plaintiff, when autliorized 60 May be made in all actions 60 Form and contents of the offer 60 By whom subscribed 61 Affidavit of attorney's authority 61 Acceptance of the offer and proceedings thereon 61 Effect of non-acceptance 63 OFFICERS : Increased costs in actions against 404 Costs in actions against school officers 376 Actions against, where tried 41 ORDER : Removing cause from County Court to Supreme Court 28 Removing cause to change place of trial 29 Removing cause for purpose of consolidation 33 Removing cause by consent 33 Staying proceedings 36 Changing place of trial to proper county 38 Changing venue to secure impartial trial 43 Changing venue for convenience of witnesses 44 Consolidating actions 48 Severing an action or directing a separate trial 51 For the trial of questions of fact by a jury 63 Referring issues 67, 73 Referring part of the issues 75 For a struck jury 77 For a foreign jury 79 Requiring a witness to attend with papers, etc 84 For examination before trial 91 That commission issue to examine witness on interrogatories 101 For commission to examine partly on oral questions 106 For an open commission , 108 Directing depositions to be taken 109 Suppressing deposition 113 For a discovery or inspection of books, etc 120, 123 Preferring cause on calendar 133 Postponing trial 157 Directing a verdict subject to the opinion of the court 233 Setting aside report of referee 294 What judges may make 526 General requisites as to form 533 Mistake in caption 532 Should be drawn up by successful party 533 Conditions or terms on granting 533 Party not bound to accept order granted conditionally 534 Performance of conditions contained in an order 584 Index. 665 ORDER — (Continued) '. Page. When it is necessary to enter an order 535 Where the order must be entered 535, 536 Compelling entry of order 536 Entry of, nunc pro tunc 537 Service of order 537 Reviewing or vacating , 540 Costs of motion must be awarded by the order 544 ORDER TO SHOW CAUSE : Why a discovery or inspection should not be had 120 What must be stated in aiBdavit to authorize 518 Must be returnable in less than eight days 518 Before what court or judge returnable 518 Specifying irregularities in 518 Is equivalent to notice of motion 519 PARTIES : Taking deposition of, within the State 87 Examination of, before trial 87 When, and when not entitled to fees as witnesses 433, 433 Bringing in new parties on the trial 268 Amendments on the trial as to parties 209 PARTITION : Interest of any defendant in the property may be controverted 8, 308 Service of answer on a co-defendant, when necessary 8 Issues of fact in partition triable by jury 9, 308, 324 Terms appointed for the trial of the issues in, m New York 24 Consolidation of actions for 48 Severing the action where interests are undetermined 53, 339 Reference as to title, etc. , in case of default or infant parties ... 359, 308, 325 When a sale may be ordered in the action 336 When no sale can be ordered 336 When actual partition must be directed or the complaint dismissed . . 326, 327 Directions as to sale or partition in the interlocutory judgment 325, 336 Reference to ascertain liens 307, 337 Interlocutory judgment 338-330 Recitals in case of infant plaintiff 328 Must declare the right, share or interest of the parties 328 Directions where some of the interests are unascertained 328 Setting off two or more shares in common 320 Appointment of commissioners to make partition 329 Directions as to proceeds of sale where there are valid liens 329 Directions as to credit and investments 330 Proceedings of commissioners appointed to make partition 330 Oath of commissioners 330 Report that partition cannot be made 330 Modification of interlocutory judgment on such report 339 Mode of making actual partition 330 All the commissioners must meet but a majority may act 331 Requisites of the report of the commissioners 331 Confirmation of the report 331 Fees and expenses of the commissioners to be taxed and paid . . 331 , 391 Amount of fees taxable 435 84 666 Index. PARTITION — (Continued) : Page. Final j udgment after actual partition , 331 Who are concluded by the judgment 331 Direction that the parties be let into possession 333, 391 Direction as to costs 333 Proceedings where the interlocutory judgment directs a sale 333 Security to be given by the referee 310 Notice of sale 310 Postponements of sale 312 Modeofsale 313 Who may not become a purchaser 314 Report of sale , 314 Final judgment confirming the sale 381 Directions as to conveyances, and distribution of proceeds 333 Directions as to costs and expenses 333, 391 Proceedings where there are dower rights 334, 335 Security may be required before proceeds paid to a party 335 Payment of taxes, assessments, water rates, etc 335 Costs in partition in the discretion of the court 379 Additional allowance of costs by statute 407 Additional allowance by the court 409, 413 PENALTY : Action to recover a statutory penalty triable by a jury 10 PEOPLE : Costs in action where people are a party 360, 393, 398 PEREMPTORY CHALLENGE. (See Challenge.) PETITION ; For liaieaa corpus to bring up prisoner to testify 81 For a discovery or inspection 119 Reference to, in orders 588 PLACE OF TRIAL : Of the issues in actions generally .- 23 Removal of a cause to another court to change 29 Proceedings to obtain the order 31 Changing place of trial 37 Motion to change, to the proper county 88 Motion to change, to secure impartial trial 43 Motion to change, for convenience of witnesses 44 Proceedings after change of place of trial 47 Stay of proceedings pending motion 37, 39 POLLS : Challenge to 163 POSTPONEMENT (See Adjotjrnmbkts) : Of sale of real property pursuant to decree , 313 POUNDAGE : Right of sherifE to 444 Index. 667 PREFERRED CAUSES : Page. Code provisions as to preference of causes 129 Proceedings to obtain a preference i 153 PRINTERS : Fees for publication 446 When taxable 423 PUBLICATION : Application for judgment after service by 465 Fees for, may be charged as a disbursement 435 Amount of fees for 446 QUO WARRANTO : Right to a jury trial of the issues in an action of 10 REBUTTAL • What is rebutting evidence 173 Introducing evidence in 173, 174 RECITALS : In judgments, 168, 169 In orders 533 REFEREE (See Trial by Refeeee) : Appointment of 69, 300, 801 Who may or may not be appointed 73 To direct and superintend discovery 133 Certificate as evidence of compliance with the order 133 Appointment of time and place of hearing 135 Powers of, on trial of issues of law 137 Report when filed or delivered 141 Directions as to judgment to be entered 143 Oath of referee 363 Powers of, on trial of issues of fact 361 Cannot award costs against executors, etc 885 Rendering judgment on the pleadings 364 Nonsuit or dismissal of the complaint 264 Adjournments, defaults, amendments. 365 Bringing in new parties 368 Report of referee upon the issues 379, 385, 390 Setting aside report 293 Exceptions to report 395 Trial of specific questions of fact by 275 References incidental to the trial of the issues 300 (See Kbfbkbncb.) Sales by referees 310 Admeasurement of dower by referees ' 315 Cannot grant additional allowance of costs 419 Fees of referees may be taxed as, a disbursement 433 Amount of fees given by statute 364, 433 Upon sales of real property 434 Upon admeasurement of dower 31 7 Upon a discovery 133, 433 Stipulation as to fees 364, 483 Attorney may bind his client by stipulation 364, 433 668 Index. REFEREE — (Continued) ; Page7 Not bound to deliver report until his fees are paid 287 Court cannot, by order, compel payment of fees 287 Attorney not liable for fees of referee 287 Remedy of referee for non payment of fees 287 Successful party must pay the fees of referee 287 REFERENCE : By consent, how far a matter of right 15 Power of an attorney to consent to a reference 67 Entry of order on stipulation 67, 73 Cases in which an application must be made to the court 67 When the parties may or may not name referee 67, 68 Irregular consents 68 Compulsory reference of the issues, when ordered 16 Examination of a long account necessary to authorize 16, 17 Account must be directly involved 17 What is a long account 19 Actions requiring decision of diflBcult questions of law 17 In a proper case, always a matter of discretion 17 Actions in tort not referable except by consent 17 Character of the action to be determined from complaint 17 Where the trial of a counter-claim requires the examination of a long account 18 Where the trial of some of the issues will require the examination of a long account 18 Joinder of referable and non-referable causes of action 18 Actions by attorneys for services 20 Action upon an account stated 20 Where there is no contest as to the correctness of the items of account 20 When the decision of some of the issues may render the examination of the account unnecessary 21 Application for a compulsory reference 69 Action not referable until in readiness for trial 69 Laches a ground for denying the motion 69 At what court to move 70 Notice, and requisites of motion papers 70 Opposing the motion 71 Who may be appointed referee 73 Order of reference 73 Appeal from the order directing a reference of the issues 75 Of a part of the issues 75 Of the issues of law in an action, proceedings on 136 Of all the issues of fact in an action, proceedings on 257 (See Trial by Refekee.) Of specific questions of fact involved in the issues 275 Incidental to the trial of the issues 300 To approve undertakings, make examinations, etc 22, 300 To take and state an account 21, 305 To ascertain liens. 307, 327, 339 To take proof of title, interest, etc 308, 340 Index. 669 EEFERENCE — (Continued) : Page. To make sales. (See Sales.) 310 To admeasure dower. (See DoWBR.) 317, 383 To make computations, etc 317, 341 To direct and superintend a discovery, etc 123 To settle issues for a trial by a jury 65 To take the examination of a party or witness before trial 91 To settle a judgment 467 RELATIONSHIP ■ When it disqualifies a judge , 26 When it disqualifies a juror 161 May be shown to affect credibility of witness 177 RELEVANCY : What is meant by relevant evidence 201 How determined 201 Objections to evidence as irrelevant , 201, 203 Court may require counsel to show relevancy of evidence 203 Evidence may be relevant as to one party and irrelevant as to the other. . 201 203 Effect of introducing irrelevant testimony 498-500 REMOVAL : Of a cause to another court 26-33 Where the judges are disqualified 26, 27 Disqualification of judges 26 Filing certificate of disqualification, affects 26, 37 Proceedings after certificate filed , 37 Effect of removal 27 Application for removal where county judge disqualified 37, 38 Takes effect on entry of order 39 To change the place of trial 29 Application for removal 30 Order directing removal and proceeding thereupon 31 For the purpose of consolidation 33 By consent of parties > 33 REPLEVIN : Action triable by jury as a right 9 Notice of abandonment of claim to property not replevied 135 Notice that defendant demands judgment for return of chattel, etc 135 Verdict, decision or report in replevin 249, 282 Costs to the plaintiff as of course 354, 360 Costs to the defendant 366, 869 Fees of sheriff in 439 Judgment where both parties are successful in part 471 Judgment for the plaintiff 471 Judgment for the defendant 471 REPORT : On the trial of an issue of law 141 When to be rendered and filed 141 670 Index. REPORT — (Continued) : Page. On the trial of an issue of law, directions as to the judgment to be entered . 143 On trial of the issues of fact 279 Requirements of the Code 379 Sulfioiency of the statements of fact 379 What facts need not be found 380 When no findings are necessary 281 Where increased damages are given by statute 281 In matrimonial actions 382 In ejectment 282 In replevin 383 Making and filing the report. 285 Filing or delivering the report 386, 303 Terminating reference for failure to file or deliver report 288 Construction of 290 Conclusiveness of findings 291 Conclusiveness of report of referee in divorce 160, 461 Setting aside report 292 Exceptions to findings or refusals to find 295 When and how taken 296 EfEect of insufficient exceptions 399 Sending report back for further findings 395 Findings without evidence, an error of law 399 On reference other than of the issues 303 Piling and delivery 303 Exceptions to the report 303 Of sale by a referee 314 On admeasurement of dower 316 Setting aside or confirming ' 316 On reference to compute in foreclosure 314 On trial of specific questions of fact 276 REQUESTS : That the facts in the case be submitted to the jury ... .227, 230 To charge ,. 237 To find facts or conclusions of law 278 RESIDENCE : Of corporations 43 Of boarding-house keepers 42 RULES OF COURT : Authority to make 1 Must be consistent with Code 3 Publication of 2 SALES : Of real property, pursuant to decree 310 By whom made 310 By referees 310 Security upon sale by referee 310 Notice of sale, how given 310 Index. 671 SALES — (Continued) . Page. Lengtli of publication of notice 311 Time of sale in New York or Brooklyn 311 Place of sale in New "York 311 Sufficiency of tke publication of notice of sale 311, 312 Postponement 312 Mode of sale 313 Must be at auction 313 Announcement of terms 313 Express directions of tlie judgment must be followed 313 Memorandum of sale 313 Proceedings when purchaser makes default 313 Who may not purchase 314 Report of sale 314 In partition 314, 333 In dower 314 In foreclosure , 314 Execution of conveyances 314 Confirmation of sale in partition 333 Distribution of proceeds 333 Confirmation of sale in dower 340 In foreclosure 348 Executing conveyance 348 Distribution of proceeds 349 Report 350 Confirmation of report 350 Fees of referees 434 SECURITY FOR COSTS : Stay of proceedings for failure to file 33 SEDUCTION : Costs in action for 354 SERVICE (See Notice) : Of notices of motion generally 516 Proof of service , 517 Of motion papers 523 Of orders 537 Of offer of judgment 61 Of order of reference. . 74 Of subpoena 80 Of writ of Jiabeas corpus 83 Of order for examination of witness before trial 93 Of notice to produce papers on the trial 117 Of notice of trial 126 Of aflidavits of merits 134 SETTLEMENT • Of issues for trial by jury '. . 65 Of interrogatories attached to commission 104 Of judgment 467 Of case 494 672 Index. SHAM PLEADINGS : Page. Striking out 6, 11 SHERIFF • Fees of 439 SLANDER : Costs in action for , 354 SPECIAL JURY (See Joey) : Practice in procuring a special or struck jury 76-79 SPECIAL VERDICT : Defined 248 When court may direct jury to find 248, 249 Requisites of : 248, 249 Motions arising on, are enumerated , 512 STAY OF PROCEEDINGS : On motion to remove action to another court 29, 33 To compel obedience to an order or the performance of a duty 33 In foreclosure on payment of amount due, and costs 38 For non-payment of costs or failure to give security for costs 33 Where other actions are pending for the same cause 35 Miscellaneous cases 36 Practice on the motion for a stay 36 Motion may be ex parte or upon notice 36 Length of stay ordered by a j udge out of court 36 tJjJon sale in partition or foreclosure 36 ESect of order served vrithin ten days of a Circuit 36 By what judge ordered 37 Motion papers "where stay is desired on motion to change venue . . . 37, 39 Service of the order 37 STENOGRAPHERS : Fees of 445 Minutes of, as substitute for a case . , 493 STIPULATION : To remove action from Supreme to Superior City Court 32 To refer 67 To take deposition of witness within the State 95 To take testimony without the State 110 To try cause elsewhere than at the court-house 24 By party opposing motion to change place of trial 47 To admit facts to prevent postponement 156 As to referee's fees 264, 433 STRIKING OUT- Verified answer containing general denial cannot be striclien out as sham. 11 Motions to strilce out or disregard evidence 205 Evidence received without objection 205 Irresponsive answers 206 \ Index. 673 STRIKING OUT — (Continued) : Page. Motions to strike out evidence received provisionally 307 Refusal of party to be cross-examined 208 Discretion of the court as to granting or denying tile motion 306, 208 Striking out the name of a party 210 Pleading may be stricken out for disobedience to order for discovery. ... 124 STRUCK JURY (See Jury) : Practice in procuring a special or struck jury 76-79 SUBPCENA : Is a mandate 80 Contents of 80 Service of 80 Payment of witness' fees 80, 81 No fees allowed for serving 81 Proof of service 81 Procuring tbe attendance of witness with papers by. . , 83 Form and contents of subpoena duees tecum 83 Party may be compelled to produce books by 83 Production of books of corporation compelled by 83 When records may be removed from the office by 84 Service of 84 Vacating or modifying a subpoena duces tecum 86 To compel attendance of witness on a commission 96 SUBSCRIBING WITNESS: When it is necessary to call 188 SUMMING UP : Right of party having affirmative to open and close 170, 233 Is a legal right 170 Limited to one counsel on each side 234 How far in the control of the court 234 SURPRISE : As a ground for a new trial 503 Must relate to some act which could not reasonably have been anticipated 503 Must occur at the trial 504 What are not matters of surprise 504 By unexpected testimony 504, 505 By conduct of adverse attorney calculated to mislead 505 By failure of a witness to attend 506 By amendment on the trial 506 SURVEYORS : Fees of 435 TAXATION OF COSTS. (See Costs.) TENDER : When authorized by the Code 57 When and how made 57 ■\t Amount of tender 58 85 674 Index. TENDER — (Continued) : Page. When must be actually made 58 Must be unconditional 58 Payment of money into court 58 Effect of the tender 58 Upon the recovery of costs 58, 373 By a junior mortgagee in an action of foreclosure 343 TERMS OF COURT : Statutes relating to the appointment of , 23^ Place of holding 33 For the trial of issues generally 33 For the trial of issues of fact without a jury in New York 34 At what term a motion may be heard 534 TITLE : References as to title, interest, etc 308 Costs where title to real property is in question 356 Of the cause, includes name of court 519 Not necessary to validity of aflSdavit 519 Of a judgment 463 TORTS : Common-law actions sounding in, triable by jury 10 Action for a tort cannot be changed to action on contract. 315 Recovery cannot be had on a tort not sued upon 315 Costs in actions for personal wrongs. . , 361 TRANSCRIPT : Of records as evidence 114, 115 Docketing of judgment upon 483 TRIAL : Meaning of the term " trial" 6 Of issues between co-defendants 7 At what term had 23 Changing place of 37 Removal of cause to change the place of 39, 37 To proper county 38 To secure impartial trial 43 For convenience of witnesses 44 Proceedings after the change 47 Separate trials on severance of action 51 Notice of 126 Countermanding notice 137 Renewing notice 138 Trial fee 400 TRIAL BY THE COURT — ISSUES OF FACT : Mode of bringing on the trial 257 Proceedings on default 153, 357 Application to postpone ... , ', . 153, 257 Index. 675 TRIAL BY THE COURT — ISSUES OF FACT — (Continued) : Page. Mode of examining and impeaching witnesses 178, 257 Directing a reference or a jury trial 257 General procedure on the trial 257, 261 Objections to evidence and exceptions to rulings 267 Bringing in new parties 268 Suspending trial to hring in new parties 269 Trial of specific questions of fact by a jury 270 When a matter of discretion and when a matter of right 270 Proceedings on the trial 270 Motion for a new trial 371 Conclusiveness of the verdict upon the court 272 Proceedings subsequent to the verdict 273 Reference of the remaining issues 274 Application for judgment 275 Trial of specific questions of fact by a referee 275 Proceedings on the reference 276 Motion for a new hearing 276 Disposition of the remaining issues 277 Application for judgment 377 Requests to find facts or conclusions of law 278 Form of the request 278 Manner of disposing of the requests 278 Decision of the court 279 Must state separately facts found and conclusions of law 279 Directions as to costs 279 When no findings are necessary 281 Direction as to increased damages 281 Direction to enter judgment 279, 283 In ejectment 283 In replevin 282 Making and filing the decision 283 When to be filed 283 Remedy for failure to file 284 Construction of the decision , 290 Conclusiveness of the findings of the court 291 Exceptions to the findings and refusals to find 295 When and how taken 396 Effect of insufficient exceptions 299 TRIAL BY THE COURT — ISSUES OF LAW : Where and what term held 136 How brought on 138, 137 General practice on the trial 137 Principles governing the decision of the issue 138 Facts demurred to deemed admitted 138 Intendments in favor of the pleading demurred to 138 Defects justifying a decision for demurrant 139 General demurrer to several counts 146 Demurrer to answer setting up separate defenses 140 Pleading demurred to considered as a whole 140 Attacking complaint on demurrer to answer 141 676 Index. TRIAL BY THE COURT — ISSUES OP LAW — (Continued) : Page Want of capacity to sue 141 Defect of parties 141 Copy pleadings served control decision 141 Decision of the court 141 When to be rendered and filed 141 Remedy for failure to file 284 Directions as to the judgment to be entered 143 Leave to amend or plead over 142 Directing a severance of the action 142 Direction for judgment absolute 143 Proceedings after decision 143 Entry of interlocutory judgment 143 Time to amend runs from the entry of judgment 144 Failure of defeated party to comply with terms 144 Disposition of the remaining issues 144 Costs 145 TRIAL BY JURY: When a matter of right 9 When in the discretion of the court 12 Waiver of the right to 13 Order for G3 Granting of order, vrhen discretionary 63 Proceedings to obtain the order 64 Statement of questions for trial , 64 Proceedings under the order 65 In actions for divorce and partition 65 Conclusiveness of the verdict or finding 66 Procuring special or struck jury 76 Application for the order 77 The order 77 Proceedings under the order 78, 79 Foreign jury 79 Proceedings at the opening of the court 148 Calling and correcting the calendar 148 Directing a reference 150 Taking an inquest 150 Proceedings upon default 152 Applications to postpone the trial 153 Calling and impaneling a j ury 159 Qualifications of jurors generally 159 In the city and county of New York 160 In the county of Kings 160 Disqualifications of j urors 161 Exemption from service as jurors 16i Excusing jurors from service 163 Challenges 163 To the array 163 For principal cause 164 To the favor 165 Mode of taking and trying challenges 106 Index. 677 TRIAL BY JURY — (Continued): Page. Peremptory challenge 168 Waiver of challenge 168 Motion to dismiss the complaint for insuflBciency 169 Opening case to the jury 170 Party holding the affirmatiye has the right to open 170 A matter of legal right 170 Should he confined to party's own case 171 General rules as to the order of introducing evidence 172 Outline of the practice in presenting evidence 173 Examination of witnesses 173 Direct examination 175 Cross-examination 176 Re-direct examination > 180 Examination of experts 183 Use of memoranda 184 Introduction of documentary evidence 187 Impeachment of witnesses 190 Commitment of perj ured witnesses 200 Objections to the admission or rejection of evidence 200 Exceptions to the admission or rejection of evidence 203 Waiver of objections and exceptions 204 Motions to strike out or disregard evidence 205 Amendments on the trial 209 As to parties 209 Inserting material allegations ... 211 To conform pleadings to proof 212 Variance between pleadings and proof 212 failure of proof 214 Compelling election between parties in ejectment 216 Voluntary nonsuit 216 Withdrawing a juror 217 Motion for nonsuit, dismissal of complaint, etc 217 M^ien no cause of action is proven 218 When the alleged cause of action is unproven 220 In actions for negligence 221 When to mo ve , 224 Motion, by whom made 235 Motion, how made 226 Exception to refusal to nonsuit 227 Request that facts be submitted to jury 227, 228, 230 Exception to nonsuit 228 Directing a verdict, when proper 229 Exception to ruling directing a Verdict 230 Directing a verdict subject to the opinion of the court. 232 Summing up 233 How far a matter of discretion 233 Right to the closing address to the jury 238, 234 Limitation as to time occupied 234 Restricting remarks of counsel 234, 235 Charging the jury 235 Court not bound to charge without request 235 678 ■ Index. TRIAL BY JURY — (Continued) : Pago. Nature of tlie charge 236 Expressions of opinion by the court 236 Requests to charge the jury 237 Right of counsel to a proper charge 237 Fonn of the request 237 Matters as to which no charge can be required 238 Calling attention of the court to errors 238 Exceptions to the charge or refusals to charge 239 Exception, when taken 239 Exceptions, how taken 239-241 Deliberation of the jury 241 Taking papers to jury room 241 Communications between judge and jury 242 Interference with deliberations of jury 242 Mode of arriving at the verdict 243 Compelling an agreement of the jury 244 Discharge of jury for failure to agree 244 Assessment of damages by jury 844 Directing sealed verdict 245 The verdict 245 How rendered and recorded 245 Correcting the verdict , 246 Polling the jury 247 Entering the verdict 248 General and special verdicts 248 In replevin 249 In ejectment 250 In action to determine claim to real property 251 Trial of specific questions of fact by a jury 270 When discretionary or a right 270 How brought on 270 How reviewed 271 Conclusiveness of verdict 272 Motion to set aside the verdict 271, 273 TRIAL BY A REFEREE — ISSUES OP PACT : Appointment of time and place of hearing 135 Notice of hearing , 126 General practice on a reference 261 Powers of referees 262 Oath of referee 263 Omission to take the oath 263 Waiver of the oath 263 Stipulation as to fees 264 Judgment for the plaintifE on the pleadings 264 Nonsuit or dismissal of the complaint 264 Adjournment of the trial 265 Defaults and refusals to proceed 265 / Amendments of the summons or pleadings. 265 What amendments prohibited 266 Index. 679 TRIAL BY A REFEREE — (Continued) : Page. Objections to evidence and exceptions to rulings 267 Reserving decision and receiving evidence 267 Bringing in new parties 268 Of a portion of the issues 274 Of specific questions of fact 275 Requests to find facts or conclusions of law 278 Form of tlie requests , 278 Disposition of the requests 278 Report of tlie referee ■. 279 Facts and conclusions of law must be found separately 279 Wlien no findings are necessary 281 Report after dismissal of the complaint .281 Requisites of the report in particular cases 281 Where increased damages are given by statute 281 Awarding judgment on all the issues 281 In matrimonial actions 282 In action of ejectment 282 In action of replevin 282 Filing or delivering the report 285, 286 To whom delivered 286 Requiring pre-payment of fees 287 Terminating lef erence for failure to file or deliver report 288 Construction of the report 290 Conclusiveness of the findings 291 Findings unsupported by evidence 291, 292 Setting aside the report 293 Review by motion for new trial 293 For improper transactions between referee and party 293 Practice on the motion 294 Exceptions to findings or refusals to find. 295 To findings of fact 296 How and when taken 296 Effect of insuflicient exceptions. 299 TRIAL BY A REFEREE — ISSUES OP LAW: How brought on 137 General practice on the trial 137 Principles governing the decision of the issue 188 Report of the referee 143 Directions as to judgment to be entered 143 Proceedings after report 143 Entry of interlocutory judgment 148 Costs , 145 TRUSTEES : Liability of, for costs 886 UNDERTAKING : Reference may be ordered to approve an urideftalcing 23 680 Index. VACATING : . Page. Subpoena duces tecum or order for production of papers 86 Order for discovery 131 VARIANCES . Between pleadings and proof 213 Wlieu material , 213 Immaterial variance may be cured by amendment 313 Conforming pleadings to proof 313 Objections to, must be taken at the trial 313 What is not a variance but a failure of proof 214 VERDICT : Deliberation of the jury 241 Mode of arriving at the verdict 243 Failure of the jury to agree 244 Directing a sealed verdict 245 How rendered 345 Power of the jury to correct 346 Polling the jury 249 Entering the verdict 248 Recording the verdict 346 General and special verdicts 348 Special finding controls general verdict 249 Distinction between special findings and special verdict 249 Requisites of a special verdict 249 In replevin 249 In ejectment 350 In action to determine claim to real property 251 After trial of specific questions of fact 270 Directing a verdict 228 Power of the court to direct a verdict 238 When it is proper to direct a verdict 339 Legal effect of directing a verdict 339 Effect of requesting the court to direct a verdict 230 When request to submit facts to the jury is necessary 330 Effect of an exception to the direction of a verdict 330, 231 Nonsuit may be ordered where verdict cannot be directed , 231 Directing a verdict subject to the opinion of the court 232 When such direction is proper 233 Effect of failure to except to direction of a verdict 233 Entry of judgment on 455 Motion for judgment on verdict subject to the opinion of the court .... 456 Discharge of jury for failure to agree , 244 Motion to set aside (See New Trial) 251 VENUE (See Place of Trial) : Proceedings to obtain change of venue .37-48 An essential part of an afiidavit 519 WAIVER : Of the right to a j ury trial 13 Of challenge 168 Of objections and exceptions to evidence 204 Index. 681 WASTE : Page. Action for waste triable by jury as a right 9 WITNESSES (See Evidence) : Changing place of trial for convenience of 44 Compelling attendance of 80 By subpffina 80 By writ of habeas corpus 81 Procuring attendance with papers, etc 83, 84 Talcing deposition of, within the State 87 Taking depositions of, without the State 96 Direct examination of 175 Cross-examination of 176 Re-direct f xamination of 180 Examination of experts . 183 Use of memoranda by 184 Impeachment of 190 Commitment of perjured witnesses 300 Fees of 440 When taxable ... 431-433 Recovering back fees paid 423 80