OJnrnpU Hatu i>rI)ool library Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022789204 TRIAL PRACTICE, OR THE RULES OF PRACTICE APPLICABLE TO THE TRIALS OF CIVIL ACTIONS IN COURTS OF RECORD. UNDER THE CODE OF CIVIL PROCEDURE, APPKNDIX OF FORMS BY EDWIN BA.YIvIES, COUNSELOR-AT-LAW. SECOND EDITION. ROCHESTER, N. Y. WILLIAMSON LAW BOOK COMPANY. 1899. Entered according to act of Congress, in the year one thousand eight hun- dred and ninety-nine By EDWIN BAYUES, In the office of the L,ibrarian of Congress. PREFACE TO THE FIRST EDmON. 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 the cases decided under each, for the purpose of determining how far the former practice has been retained, modified or abolished, and how far the earlier decisions giving construction and application to the Code of Procedure may now be regarded as authoritative. This examination of cases has been greatly facilitated by the use of the carefully annotated law library of the late William Wait. In many instances the present Code has finally settled disputed points of practice and rendered clearly obsolete many of the earlier reported practice cases. As a rule, these cases have been omitted from this volume. In other in- stances a change in the phraseology of the statute has rendered of doubtful authority cases construing the former Code, and in some instances has given rise to recent conflicting decisions. In all such cases the conflicting decisions, whether recent or other- wise, will be found cited in the the text. No attempt has been made to state the practice as it was, except so far as such state- ment is necessary to the proper presentation of the practice as it is. In preparing the Appendix of Forms free use has been made of the blanks in common use, published by Messrs. Williamson Preface. v & Higbie, of Rochester, N. Y. It is but justice to those gentle- men 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 practice 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 commence- ment to its close will furnish a safe guide to the young practi- tioner and give him confidence 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 cover- ing but a single branch of the practice, 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 BAYUES. PRIi-FACE TO THE WECOND EDITION. The first edition of the Trial Practice was published fifteen years ago, soon after the adoption of Chapters 14-22 of the Code of Civil Procedure. At that time many questions of practice were unsettled, and particularly those which fell within the scope of the newly added chapters. Since that time im- portant changes have been made in our judicial system by the new or amended Constitution, and in the practice, by amend- ments to the Code of Civil Procedure. The courts have in the meantime decided many thousand cases bearing more or less directly upon questions of procedure, and these decisions are scattered through nearly two hundred volumes of the official series alone. To meet these changes ; to group together the decisions of the courts under appropriate heads and in an available form; and to present as it is the practice upon the trial of causes in courts of record has been the object and intent of the present edition; and the result is herewith submitted to the profession with the hope that it may meet with the same indulgent criticism that greeted the edition preceeding it. Johnstown, N. Y., September, 1899, EDWIN BAYLIES. TABLE OF CONTENTS. CHAPTER L Courts of Record of the State of New York. Section 1. Ennmeration of courts of record ...»»►». ... I Sections. Courts recently a bolisiied 2 Section 3. Division of tlie State into judicial districts and departments. . 3 Section 4. Time and place of holding courts of record .... 4 Court of appeals 4 Appellate division 5 Special and trial terms of the supreme court 5 The court of claims 7 The city court of the city of New York 7 The county court 8 Changing place of holding terms in case of pestflence, etc , 9 Change by stipulation 10 Effect of change of time or place of holding term 10 Sections. Adjournment of terms of court 11 Section 6. Judges or justices of courts of record 13 Court of appeals 13 Appellate division of the supreme court 13 Justices of the supreme court 13 Judges of the court of claims 14 Justices of the city court of New York 14 Judges of county courts 14 Surrogates 15 Special county judge and surrogate 15 The age limit 15 Assignment of justices to hold terms 16 Territorial limitation 16 Limitation of powers of judges of appellate courts 17 Other disabilities of judges 18 Proceeding where the judge is disqualified 20 Section 7. Attorneys and counsellors at law 22 Nature of the office 22 Admission of attorneys 23 Taking and subscribing oath of office 24 Non-resident attorney 24 Begistration of attorneys 25 Persons prohibited from practicing as attorneys 25 Suspension or removal from office. 36 vli. ^'" Table of Contents. Chap. I. Courts of Record, etc.— Continued. Page. Effect of death, disbarment, etc., on ppnding action 30 Power of attorney in the management of causes 30 Attorney's lien 33 Change and substitution of attorneys 35 Stipulations between attorneys 38 Sections. Clerks 40 Section 9. Sheriff, crier and attendants 43 Section 10. Stenographers 43 CHAPTER n. The issues in civil actions and the mode of trial thereof. Section 1. Civil actions and the rules of procedure therein 46 Section 2. The issues in a civil action 4& Section 8. Mode of disposing of the issues raised by the pleadings 52 Section 4. Disposition of issues between co defendants 54 Section 5. When a jury trial is a matter of right 58 Section 6. When a jury trial is in the discretion of the court 61 Section 7. Waiver of the right to a jury trial 62 Sections. What issues are triable by the court 64 Section 9. Reference of the issues 65 Compulsory reference of the issues 67 What is a long account 70 Reference to take an account or report facts, etc 74. CHAPTER III. Preparation for trial. Section 1. Removal of the cause to another court 76 Proceedings where the county judge is disqualified 76 Proceedings on removal to change the place of trial 78 Removal for the purpose of consolidation... „„. 80 Section 2. Stay of proceedings 81 For non-payment of costs or failure to give security for costs ».. 82 Other actions pending for the same cause ^ 84 Miscellaneous cases ., 85 Practice on the motion 85 Section 2. Changing place of trial 87 Motion to chan ^e the place of trial to the proper county .„ 88 Change of venue from the proper county to secure impartial trial 93 Changing place of trial for conveoience of witnesses „„ 94 Proceedings after a change of venue has been ordered ...^ ., MK) Section 4. Consolidation of actions 100 Practice on the motion 103 Costs 103 Section 5. Severing the action or procuring a separate trial 104 Proceedings on admitted claim 106 Proceedings to obtain a severance in ejectment ... . . ^.. 107 Section 6. Tender after suit brought 109 When a tender is authorized 110 Table of Contents. ix I Chap. III. Preparation for trial — CJontinued. Page. ; When and how made 110 Effect of the tender Ill ' Section 7. Offer to liquidate damages 113 Section 8. Offer of iudgment 112 "When an offer of judgment is authorized 113 The offer lli Acceptance of the offer 116 Effect of non-acceptance 116 Amending, withdrawing, or renewing offer II7 Section 9 Order for the trial of questions of fact by a jury 118 Proceedings to obtain the order 119 Proceedings subsequent to the order , 121 Section 10. Proceedings to refer the isfaues 123 Reference by consent 123 Irregular consents 125- Application for a compulsory reference ^ 126 Opposing the motion for a reference 128 Who may be appointed referee 130 Order of reference 131 Appeal 132 Reference of a part of the issues 133 Section 11. Procuring a special jury , 133 Application for the order 134 The order 134 Proceedings under the order 135 Foreign jury 136 Section 12. Compelling the attendance of witnesses , J37 The subpoena , 137 Service of the subpoena 138 Ha leas corpus to bring up a person to testify 138 Procuring the attendance of a witness with papers, etc., by subpoena. 140 Procuring the attendance of a witness with papers, etc., by order. . . . 142 Vacating or modifying the order or subpoena , 144 Section 13. Taking the deposition of a party or witness within the ttate. 144 Nature and scope of the remedy ^ 144 Where to apply for the order 146 The application for the order 146 How far the order is discretionary 151 When motion may be denied or vacated if granted 152 Contents of the order 153^ Service of the order 155 Vacating the order 156 The oral examination 157 The physical examination 159 Depositions taken by consent 160 Section 14. Taking the deposition of a witness without the state 161 Ck>mmission to examine witnesses upon interrogatories — in what cases issued 162 The application 164 X Table of Contents. ■Chap. III. Preparation for trial.— Continued. Page. Tiie order 166 The commisBion 168 Settling interrogatories, etc 170 The execution and return of the commission 171 Commission to examine wholly or partly upon oral questions 172 Open commission, when issued 173 Open commission, appli' ation for 174 OpeQ commission, order for 174 Open commission, form of, and proc edings thereunder 175 Order directing depositions to be taken 176 Commission or order by consent 177 Letters rogatory 178 Correcting defects in the execution of the commission or suppressing depoaitions 179 Section 15. Procuring documentary evidence 183 Section 16, Procuring an admission that a paper is genuine 183 Section 17. Notice to the adverse party to produce papers, etc 188 Form of the notice 184 Service of the notice 184 Section 18. Discovery of books and papers 185 The application for the order 186 Order to show cause and proceedings thereunder 188 Motion to vacate the order 189 Prootedings on the return of the order to show cause 19(i Order for discovery or inspection 192 Enforcement of the order 193 Effect of papers produced , 194 Section 19. Service of notices in replevin 194 Section 20. Appointment of time and place of hearing by the referee . . . 195 Section 31. Notice of trial or hearing 196 Countermanding the notice 197 llpnewing the notice for another term 198 Failure to notice cause for trial 198 Section 33. Putting the cause on the calendar 199 Preferred causes , 300 Proceedings to obtain a preference 203 In the counties of New York, Kings, and Erie, and in the seventh judicial district 205 Section 23 Preparation of copy papers for the court 208 Section 24. Service of an afiBdavit of merits 208 Section 25. Miscellaneous papers for the trial term 209 CHAPTER IV. Trial of issues of law by the court or by a referee. Section 1. General statutory provisions 211 Section 2. General practice on the trial 212 Section 3. Principles governing the decision of an issue of law 213 .Sfction 4. Decision or report on the trial of an issue of law 219 Table of Contents. xi 'Chap. V. Trial of issues o£ law, etc. — Continued. Page. When to be rendered and filed 219 Directions as to the judgment to be entered 219 S action 5. Proceedings after decision or report 221 Sections. Costs 225 CHAPTER V. Trial by jury. Section 1. Applications to postpone the trial 225 Grounds for postponement 225 Application for a postponement 226 Opposing the motion 228 The decision 229 Proceedings under the order 230 Proceedings where the motion is denied 231 Section 2. Inquests and defaults 232 Inquests — when and how taken 232 Proceedings upon default 233 Section 3. Calling and impaneling a jury 335 Section 4, Qualifications and exemptions of trial jurors 235 Qualifications of jurors in the city and county of New York 236 QiiaUacations of jurors in the county of Kings 237 Disqualification of jurors. . ; 237 Exemption from service as jurors 238 Excusing jurors from serving 23S Section 5. Challenges 239 Challenges to the array 239 Challenge for principal cause 240 Challenge to the favor 212 ]\i ie of taking and trying challenges 249 Peremptory challenge 246 "Waiver of challenge 246 Section 6. Motion to dismiss the complaint for insufficiency 246 Section 7. Right to open and close 248 Section 8. Opening the case to the jury 250 Section 9. • Gteneral rules as to the order of introducing evidence 251 Section 10. General outline of the practice in presenting evidence to the jury 254 Section 11. The direct examination 256 Section 12. The cross examination 257 Section 13. The re-direct examination 263 Section 14. Examination of expert witnesses 263 Section 15. Use of memoranda 266 Section 16. Photographs 269 Section 17. Introduction of documentary evidence 270 Section 18. Impeaching or discrediting witnesses 374 Evidence of acts done or statements made out of court 275 Contradictory testimony on a former trial 278 Evidence of interest, hostility or bias 278 xii Table of Contents. Chap. V. Trial by jury.— Continued. Page. Evidence of bad character 280 Impeaching a pirty's own witness 5;83 Counteracting impeaching evidence 283 Section 19. Commitment of perjured witness 286 Section 20, Objections to the admission or rejection of evidence, and exceptions to rulings thereon 286 Objections to evidence, when taken 287 Objections, how taken 288 Exceptions 290 Waiver of objections and exceptions 291 Sectional. Motions to strike out or disregard evidence 293 Section 22. Variances and amendments 297 As to parties 297 Inserting an allegation material to the case 300 Variance between pleadings and proof 301 Failure of proof 304 Section 23. Motion to compel either party to elect, etc 306 Section 24. Voluntary nonsuit, or withdrawing a juror, etc 306 Section 25. Motion for nonsuit, dismissal of complaint, etc 307 When no cause of action is proven 308 Where the alleged cause of action has not been proven 311 In actions for negligence 312 When to move 315 Motion, by whom made 316 Motion, how made 317 ExceptiiMie and requests 318 Section 26. Directing a verdict 320 Judgment in the appellate court 324 Section 27. Directing a verdict subject to the opinion of the court 325 Section 28. Summing up 327 Section29. Charging 1 he jury 330 Bequests to charge -... 332 Correcting the charge 385 Exceptions to the charge and to refusals to charge 336 Section 30. Deliberation of the jury 338 Taking papers to the jury room 338 Communications between judge and jury 339 Interference with the deliberations of the jury 340 Mode of arriving at the verdict __ 341 Keeping jury together to induce agreement, etc 341 Assessment of damages 342 Directing a sealed verdict 843 Sectional. The verdict 343 Correcting the verdict 344 Polling the jury 346 Entering the verdict 347 General and special verdicts 347 In replevin 348 In ejectment 349- Table of Contents. xni ■Chap. V. Trial by jury.— Continued. Page. In actios to determine claim to real property 350 Section 32. Motion for a new trial 350 Section 83. Proceedings to perfect the right to cOats 351 (-Certificate as to the right to costs 351 Motion for an additional allowance 354 Taxing costs 354 CHAPTER VI. Trial of issues of fact by the court or by a referee. Section 1. Outlines of practice on trials by the court without a jury 355 Section 2. Powers of referees and general practice on a reference of all the issues 360 Oath of referee 361 Stipulations as to fees 362 Judgment for the plaintiff on the pleadings 363 Nonsuit or dismissal of the complaint 363 Adjournments of the trial 364 Defaults and refusals to proceed 364 Amendments 365 Re-opening case after submission 366 Rulings made after submission of case 367 Section 3. Objections to the admission of evidence and exceptions to rulings on the trial 368 Section 4. Bringing in new parties 369 In equitable actions , 369 On the application of a person not a party 37i Sections. Trial of specific questions of fact by a jury 373 Motion for a new trial 374 Proceedings subsequent to the verdict 376 Referen ce of the remaining issues 378 Judgment 378 Section 6. Trial of specific questions of fact by a referee 379 Motion for a new hearing 380 Disposition of the rema ning issues 381 Application for judgment 381 Section T. Requests to find facts or conclusions of law 383 Section 8. Decision of the court or report of the referee 382 The findings of fact or conclusions of law 383 The statement of the grounds of the decision .... 385 Directing the judgment and awarding costs 387 Requisites of the decision or report in particular cases 387 Making and filing the decision 389 Time of making and filing the decision 389 Remedy for failure to file the decision 390 Remedy for defective decision 391 Making and signing the report of the referee , 392 Filing or delivery of the report 293 Terminating the reference for a failure to file or deliver the report . . . 394 xiv Tablk of Contents. Chap. Trial of issues of fact, etc. — Continued. Page. Death of party before decision or report S98^ Correction of the report or decision 398 Construction of the report or decision 400 Conclusiveness of the findings 401 Section 9. Setting aside the report of the referee 402 Practice on the application to set aside the report 404 Section 10. Exceptions to the report or decision « 405 Eifect of insufficient exceptions ^^ CHAPTER Vn. References incidental to the trial of the issues. Section 1. Appointment of the referee and general practice on the refer- ence _ - 410 Compulsory reference on motion of the court 410 Motion to refer 411 Bringing the matter referred to a hearing 412 Proceedings upon the bearing 412 FiUng or delivery of the report 418 Exceptions to the report. 413 Motion for a new hearing 415 Costs 415 Section 3. Eeference to take and state an account 41R Section 3. Reference to ascfirtain liens 418 Section 4. References as to title, interest, etc 420 Section 5. References to make eales 422 Security upon sale by a referee 432 Notice of sale 422 Postponement 424 Mode of sale 425 Who may not purchase 427 Report of sale 427 Section 6. Reference to admeasure dower 438 Oath of referee 428 Proceedings upon the reference 438 Report of the referee 429 Sbtting aside or confirming report 429 Fees and expenses 430 Section 7. References to make computations, etc 430 Proceedings on the reference 431 Report 432 Section 8. Reference as to surplus moneys 433 Nature and object of the reference 433 Application for the reference 433 Bringing the cause to a hearing 434 Proceedings upon the reference 435 Report and proceedings thereunder 436 Table of Contents. xv CHAPTER VIII. Practice peculiar to the trial of actions of ejectment, partition, dower and foreclosure. Page. Section 1. Action to recover real property 437 Action for non-payment of rent 437 Verdict, report or decision 439 New trial 440 Sections. Action for partition 442 Actual partition or sale 443 Reference as to liens 445 Interlocutory judgment 446 Proceedings of commissioners appointed to make partition 448 Confirmation of the report of the commissioners 449 Final judgment after partition 449 Proceedings where the interlocutory judgment directs a sale 451 Final judgment confirming the sale and proceedings thereunder 451 Compensation for improvements or repairs 454 Section 3. Action for dower 457 Proceedings upon consent to receive a gross sum in satisfaction of dower 458 Section 4. Action to foreclose a mortgage 463 Notice of pendency of action 464 Dismissal of the complaint on payment. 464 Application for judgment 465 Judgment 465 Stay of proceedings upon the judgment 470 Sale in foreclosure 471 Filing or recording mortgage and executing conveyance 471 DispositiGO of the proceeds of sale 472 Report of sale 473 Confirmation of the report 473 CHAPTER IX. Costs. Section 1. Nature of the right to costs 475 Section 2. Costs to the plaintiff as of course 477 Pre-reqnisites to plaintiff's right to costs of course 478 By what statute determined 479 In real actions , ; 480 In an action to recover a chattel 485 In an action where the people are a pa'ty 485 In an action for personal injuries 486 In action against next of kin, legatees, devisees, etc 486 In action for causing death by negligence 487 In actions where the amount involved exceeds $400 487 In other actions in which a money judgment only is demanded 489 Against two or more defendants 490 Sections. Costa to the defendant as of course 490 *'^' Table of Contents. Chap. [X. Costs.— Continued. Page. Section 4. Cos's of course to both parties 493 flection 5. Special provisions affecting tha right to costs 495 Several actions brought on the same instrument, etc 495 Costs after discontinuance upon answer of title 49G After tender has been made 498 After defendant's offer to compromise 498 After offer to liquidate damages conditionally 500 After plaintiff's offer to compromise counte' claim 500 Action to charge defendant not personally served 501 Where pleadings admit part of plaintiff's claim 501 Against school officer 501 Against a municipal corporation 502 Certificate entitling party to costs or increased costs 503 Certificate exempting party from costs 504 Section 6. Costs in the discretion of the court 505 Exercise of the discretion 507 Rule as to two defendants 510 Costs must be expressly awarded 510 Re - ie w of the ditcretion exercised 511 Section 7. Against whom awarded and who liable to pay 51 2 In actions by or against executors and administrators 512 In actions by or against a trustee, etc 517 In case of transfer, etc., of cause of action 518 Persons beneficially interested 519 In case of infant parties 521 In action for partition , 522 la action for dower 523 In action to determine claim to real property 523 In joint action by creditor against next of kin, legatees, etc 523 In action by plaintiff and sheriff to recover attached property 523 In action by people against corporation or usurper of foreclosure 523 In action by people on relation of private person 524 In action by people for benefit of a county, etc . . . 524 Costs against the people 524 In case of notice of no personal claim 525 iSoftion 8. Amount of coats and items taxable 525 In general 525 Proceedings before notice of trial 528 Additional defendants 529 For all proceedings after notice and before trial 5o0 Taking deposition and drawing interrogatories 530 Trial fee 53]^ Motion for a new trial 534 Term fee 534 Section 9. Increased costs 53q Costs of several trials 538 Section 10 Additional allowance by statute 54O In general 540 Section 11. Additional allowance by the court 543 Table of Contents. xvii Chap. IX Costs. - Continued. Page. In general 543 To whom granted 545 In an action for foreclosure 547 In partition 547 In difficult and extraordinary oases 548 Basis of computation 550 Amount allowed 553 The application for the allowance S54 Section 13. Disbursements 557 In general 557 Witness' fees '. 538 Fees of referees and other officers 561 Compensation of commissioners 563 Fees for publication 563 Fees for copies of papers 563 ' Printing expenses 563 ; Search 563 Prospective charges 564 Other expenses 564 Section 13. Taxation of costs 560 Notice 567 Powers and duties of clerk and proceediugs before him 568 Retaxation and review of taxation 573 Section 14. Entry of costs in judgment 574 Section 15. Amount of fees 574 Referee's fees generally 574 Referee's fees upon sales of real property 575 Fees for oaths and acknowledgments 576 Surveyors' and commissioneis' fees in action for partition or dower, etc 576 Clerk's fees in civil actions generally. 575 Fees of county clerks generally , 577 Sheriff's fees 579 Coroner's fees 584 Stenographer's fees for copies of notes 584 Fees of trial jurors 585 Fees of printers 585 Witnesses' fees generally 585 CHAPTER X Judgments. Section 1. Nature of a Judgment ^ 587 Section 3. Judgment may be for or against any of the parties ..... .... 588 Section 3. Extent and nature of the relief granted 590 In ca.=e of default 590 Where an answer is interposed 593 Rate of damages recoverable 593 Section 4. Authority for the entry of judgment 595 xviii Table of Contents. Chap. X. Judgments. — Continued. Page. Section 5. Application for judgment— when, where and how made 596 Section 6. Proceedings upon the hearing of the application for judgment 59© After the decision of an issue of law 599 In matrimonial actions 601 Section 7. Proceedings where some of the defendants make default 602 Code provisions as to judgment by default 603 Section 8. Settlement of the judgment 609 Section 9. Form and contents of the judgment 609 In action to determine claims on land 611 In an action for waste 612 In oihtr real actions 613 In replevin 613 In an action to forclose a lien upon a chattel 614 In matrimonial actions 614 In actions agaiost corporations 616 In actions against h>^irs, next of kin, legatees or devisees. 617 In an action to establish or impeach a will 618 In a judgment creditor's action 620 Section 10. Judgment-roll and proceeding on the entry of judgment . . . 621 Sectionll. Notice of the entry of judgment 626 CHAPTER XI. Motions and orders. Section 1. Enumerated and non-enumerated motions 629 Section 2. Notice of mouon 630 When a notice of motion must be given 630 Length of notice 632 Form and contents of notice 633 Service of notice 634 Proof of service 636 Countermand of notice 636 Sections. Order to show cause 636 Section 4. Motion papers 688 Affidavits 688 Folios to be numbered, etc , , 643 Service of motion papers 643 Section 5. At what court or term a motion may be heard 645 In the first judicial district 645 In other districts , 646 Section 6. What judges may make orders 648 In general 648 Section 7. Opposing the motion 650 Section 8. Proceedings on the hearing . 650 Default - 650 Inability of judge to hear 651 Preliminary objections 651 The argument '. 65S Section 9. The order 654 Table of Contents. xix Chap. XI Motions and orders. — Continued. Page. Geoeral requisites as to form, etc 654 Conditions or terms 656 Entry, and filing papers 657 Service 660 Section 10. Renewal of motions 661 Section 11. Reviewing or vacating orders 664 stectiou 12. Costs 666 Discretionary 666 Must be awarded , 668 Amoont , 668 How collected 669 Appendix of Forms 671 Index of Forms General Index., .._,^. ,. TABLE OF CODE CITATIONS. Section. Page. 3 3 3 3 7 47,137, 254 14 43, 340 17 46, 48 32 137 34 137,138 25 21 36 31 31 43 34 11 35 43 36 11, 43 37 10 38 9 40 9 41 9, 10, 12 43 10 43 10 44 11, 13 46 18, 177, 337 47 19 48 19 49 19 50 19 51 19 52 20 53 20 54 16 55 30 56 33 59 24 60 25 61 26, 42 63 26, 43 83 26 64 ." 26 05 30, 36, 85 66 33 (57 - 26 Stctlon. E^e. 08 29 69 30 70 27 72 137 73 27 74 28 76 28 78 28 79 28 80 28 83 43 83 44 84 44 85..._ 45 86 .^ 45 90. .„ 42 131 97 .^ 43 103 42 104 43 107 43 119 40 131 636 J33 636 196 5 197 5 198 40 300 41 301 41 318 87 319 4 230 3, 5, 13, 16 321 41 333 18 325 6, 16 336 5 230 13 231 13 232 6, 6, 16 233 e Table of Code Citations. XXI Section. a34 7, 16 235 16 237 7 288 6 239 12, 648 241 649 251 45 252 53 268 3, 7, 14 266 41 271 78 272 79 280 3 307 530 819 79, 80 820 14 322 14 323 ". 46 324 7, 14, 23 325 8 327 648 328 41 385 41 343 22, 76, 77, 78 348 80 344 78 345 77, 79, 80 346 78, 80 354 648, 649 855 6, 8, 13 856 8 419 , 608 430 529 428 525 445 626 453 370, 373 453 371 454 495 456 490, 603 469 521 477 522 484 80, 101 497 230 499 346, 308, 370 507 306 511 52, 104, 107, 501 512 52 615 ^... 52 516 53 Section. Page. 521 55 522 50, 235 537 52 528 52 537 53, 530, 598, 638, 668 538 53 539 301 540 301 541 304 543 53 544 ^ 58 556 630, 649 563 661 568 653 606 ^ 631, 649 609 631,649 610 68t 638 416, 507, 561 624 416, 507, 561 627 652 638 649 668 437,463 669 463 677 523 683 652,653 721 43, 361, 634 733 43 723 53, 297, 302, 656 724 636 728 636 731 110,111 732 Ill 733 111.498 734 111,498 735 183.854 736 112, 500, 594 737 112, 354. 500 738 113, 116, 499, 624 789 113, 114, 116, 489, 501. 624 740 115, 116 74,5 464 763 398 764.... ^ 898 765 398 767 587, 639, 6.54 768 .... 639 769.. 78, 79, 80, 90, 126, 164, 645, 646 770 598 771 651 '1'able of Code Citations. Section. Page 772 77, 86. 139, 156, 164. 189, 631 648, 649. 664, 665 778 77, 78, 648 775 .. 77, 86, 189 776 143, 661 777 356, 599, 600 778 .■599, 663 779 83, 228, 566, 668, 669 780 .. .77, 80, 90, 126, 134,144, 189 415, 630, 632, 637 782 661 789 200,203 791 203 792 203 798 77, 204, 205 796 156,643 797 635 798 88, 196, 567, 632 799 631,634 80O 635 803 156, 632, 636 803 185 804 185 805 186, 188 807 190, 192,561,6^9 808 194 809 194 817 101 818 80, 101 819 101 823 118, 120, 373 837 -. 75,411,416, 507, 561 828 279 829 287 832 259 842 641 843 641 844 642 845 354 851 254 852 138, 140, 141, 148, 585 \m 138 856 158 858 158 866 141, 142 867 141, 143, 144 868 141, 143 i,69 143, 143 670 145, 146 Section. Pa e. 871 145 872 . . 145, 146, 147, 148, 149, 151 873. . .145, 150, 151, 153, 154, 155, 373 874 156 875 156 876 158 877 145, 150, 153, 155 879 145, 160, 351 880 155, 161 881 272 882 149, 273 883 159, 273, 374 885 643 888 1.50, 155, 158, 160 887 163, 164, 166, 169 888 16H, 164 889 163, 164, 165, 166 890 167, 168 891 170 893 167, 169, 170, 171, 173 893 168, 173 894 173, 174, 175 895 168, 173, 173, 174 896 173, 176 897 176 898 176 899 173, 176, 177 900 176 901 171, 173, 176 903 176 903 173, 176 905 172, 176 906 172, 175 907 173, 175. 176 908 173, 177, 178 909 172, 176, 179 910 ..176, 180, 181, 182 911 171, 172, 176 913 167, 170 913 178, 179 931 890 933 182,373 934 183, 373 935 ISJ, 271 936 371 937 271 988 273 939 183 941 273 Table of Code Citations. XXI u Section. 942... 956. .. 957. . . Page. -. 183 183 183 959 183 961 183 903 49 964 49, 50, 211 965 52, 53, 211 966 53,311 987 54, 104, 197, 2U, 234 968 56,60,64,119, 457 989 53, 64, 211 970. .56, 57, 119, 120 131, 356, 373, 375 971 61, 118, 119, 378, 631 973 62, 65, 356, 376 974 54,234 975 53 976 211 y77 190, 199, 212 978 200, 213 979 300, 312 980 209, 212, 233, 33,5 981 308, 213 •983 87, 93, 457 033 87 984 87, 93 985 87 980 88 987 88, 93, 94, 99 988 100 989 100 990 91, 211, 219 991 87 993 405 993 406 994.... 359, 406, 626 995 390, 336, 405 996 351, 403 997 351 999 850, 351, 374 1000 351,374 1001 358, 403, 413, 626 1003 350, 351, 402 1003 .' S74, 375 loot 381, 402 1008 65, 234, 355 1009 62, 03 1010 . 219. 357, 889, 390, 39 1 lOU 66, 123, 130, 211 Section. Page. 1013 67, 133, 311 1013. .67, 68, 129, 133, 355, 356, 379, 631 1014 356, 381, 394, 598 1015. . : .74, 133, 402, 411, 416, 433, 507 561, 653 1016 361, 378, 380, 404, 412, 420 1017 860, 413 1018 212, 234, 360, 384, 365 1019 319, 393, 895, 396, 397, 418 1020 887 1021 219, 220. 364, 600 1033... 334, 357, 361, 364, 378, 383, 387 406 1028 405 1024 125, 130, 131 1025 135 1026 361,893 1027 336, 238 1028 336 1029 238 lOSO 338 1031 338 1033 .338, 590 1033 338 1034 238 1048 43 1063 133, 134 1064 135 1065 136 1066 136 1067 186 1068 134, 135, 136 1069 186 1 070 137 1071 137 1079 236 1080 237 1081 238 10S3 338 1085 239 1086 239 1087 2>9 1088 ■. 239 1126 337 1128 238 1130 389 1163 235 1164 235 1166 174, 235, 237, 340, 346 XXIV Table of Code Citations Section. Page. 1171 239 1174 259 1175 239 1176 ;.. 246 1177 239 1178 239 1179 240 1180 244, 235 1181 342 1183 806 1183 843 1184 343 1185 825 1186 347, 596 1187 318, 325, 342, 347, 378 1188 347 1189 347, 351, 374, 596, 623 1300 357, 587 1303 107, 595, 597 1204 55, 588 1305 104, 589, 602 1206 589 1307 590 1208 593 1312 604 1213 605 1314 605 1215 403, 600, 605 1216 606 1217 606 1318 465, 599, 606 1219 607 1220. 104, 220 1231... 222, 223, 381, 387, 595. 597, 598 1222 222, 596, 600 1223 222, 388, 600 1224 597 1225 379,597 1226 381, 598 1237 358 1228 334, 359, 361, 394, 401, 595 1229 388, 595, 601, 607 1280 222, 234, 858, 859, 598 1231 234, 359,574, 608 1232 359, 402, 415, 432, 600, 607 1233 596 1234 327, 596 1235 632 1236 622, 633 Section, Page. 1337. 63S 1338 633 1339 623, 624 1240 458, 523 1242 423, 451, 471 1843 423 1244 472 1245 63& 1246 685 1347 626 1248 625 1250 625 1251 .. 626 1260 33 1272 625 1286 631 1300 31 1803 81 1304 658 1337 85 1343 658 ' 1316 350 1347 850, 376, 358 1348 658 1349 358 1351 78. 85, 132, 858, 359, 412, 457 626, 627, 658, 661 1352 85 ■ 1S60 85 1432 631 1434 423 1496 349 1497 349 1501 520 1504 849, 437 1505 849 1506 488 1507 349, 438 1508 438 1509 439 1510 489 1511 ,. , 300 1516 105,306 1517 105, 108 1518 105,108 1519 849,388,439 1520 349, 439 1521 „ 106 1522 105.108,109 Table of Code Cttations. XXV Section, Page. 1523 106, 109 1524 440 1525 440, 544 1526 441 1527 442 1528 442 1529 442 1531 440 1532 443 1533 444 1534 445, 446 1542 430 1543 56, 420, 442 1544 57, 120, 420 1545 356, 421, 443, 603 1546 357, 443, 446 1547 104, 357, 447 1548 447 1549 357, 447 1550 448 1551 443,447,448 1552 448 1553 449 1554 ' 449 1555 449, 552, 563 1558 449 1557 450 1558 , 450 1559 522 1560 857, 444,447, 451 1561 309,358, 419 1562 419, 430 1563 447 1564 633 1567 426 1569 453 1570 454 1571 454 1573 436, 448 1576 427, 451 1577 427,451 1579 451 1580 46J 1581 452 1582 452 1583 453 1584 454 1585 454 1587 450 Section. Page- 1591 445 1607 357,428,457 1608 428,457 1609 439, 457 1610 429,457 1611 429, 458 1612 430. 458.523,563 1613 429. 458 1617. 459, 460 1618 459 1619 357,460 1620 461 1621 209, 358, 419, 461 1633 436, 461 1633 427, 461 1624 463 1635 463 1626 465, 471 1637 456 1631 f>99 1632 472 1683 433, 467, 472 1634 ....82, 110, 464 1635 83, 110, 470 1636 467,471 1637 467,471 1638 57 1640 611 1643 350 1643 350,611 1644 611 1645 523, 612 1648 357 1655 593, 613 1656 357, 593, 613 1657 422, 612 1658 357, 612 1662 613 1667 598 1668 387, 593 1669 593 1676 484. 461, 466, 473 1677 472 1678 423, 425, 426 1679 427 1719 194, 208 1725 195, 208 1736 348, 388 1737 31» KXVI Table of Code Citations. Section. 1728 349, 389, 613 1730 613, 614 1739 614 1745 614 1751 614 1757 59, 130 1759 615 1766 615 1769 506, 615, 616 1771 615 1773 615, 616 1790 616 1791 616 1:93 , 616 1794 616 1795 617 1797 617 1798 617 1^-00 57 1801 617 1835 353, 504, 513 1836 353, 504, 513, 515, 516 1-37 486 1839 533, 617 1843 617 1847 618 1853 618 1854 618 1856 618 1857 618 1861 618 1863 618 1863 619 1864 619 I816 619 1873 620 1874 680 1877 621 1879 620, 631 1698 593 1900 594 1901 594 1903 594 ly04 594, 633 1933 590 1936 636 1941 501 1956 485 1985 624 Section. Page. 1987 534 1989 101 1991 139, 537 1992 140 1993 139 1994 140 1996 139 1998 140 2001 140 3003 140 2006 140 2008 139 2011 139 2012 139 2013 1:0 3014 140 2484 22 2497 22 2614 619 2615 619 2653a 57, 619, 620 3718 66, 513, 516 3863 486, 487, 506 3171 163 3172 75 3328. . .478, 480, 485, 486, 4i^7, 489, 490 493, 504, 505, 506, 536 3229 351, 491, 503, 505, 510, 538 3230 351, 505 3231 496 3333 238, 507 3333 323 3334 494 504 3335 353. 496 3236 416, 507, 561. 666 3241 524 3343 534 3343 40,524 3244 353 503 3245 352, 502 3246 512, 517,518,519 3347 519, ,530 3348 352, 353, 484, 504 573 3349 521 3250 477,478 3251. . .416, 528, 529, 530, 531, 534, 561 668 3252 354, 526, 540, 541, 569 3253. .854,526.543,543,544, 547, 550, 553 Table of Code Citations. xxvii Section. Page. 3354 526, 541 3255 239, H64, 507 S256 557, 558. 561, 562, 563, 564 3257 537 3258 503,536,537, 572 3261 557 3362 351, 354, 475, 566, 568, 569 3263 ...354,567 3264 354, 567, 568, 572, 573 3265.. 573 3266 569 3307 ....354,558,563,569 3273 83, 543 3280 561. 594 3281 561, 594 3382 594 3a87 566 S288 560 Section. Page. 3396 362, 575 3397 473, 575 3398 576 3299 430,576 3301 561, 577 3302 577 3304 .577, 579 3305 579 3307 473, 583 3808 .-iSS 3310 584 3311 584 3313 585 3317 585 3318 138, 143, 585 3333 46 3337 46 3343 110, 137, 158, 161, 638, 658 TABLE OF CASES. A Pag©.. Aaron V. Foster » 481' Abbott V. Corbin , 71,72,138 Abbott V. Johnstown, Etc. E. Co. 490, 544 Abbott V. People.. 343 Abbott-Downing Co. v. Faber 148, 149, 153 Abendroth v. Durant 494 Abernethy v. Society of Church of Puritans 808, 318 Abrahams v. Benson 99 Acker V. Leland 59, 61, 90, 123, 375, 376, 377 Ackerman v. Delude 05, 485 Ackerman v. Third Ave. E, Co 329 Ackley v. Tarbox 299, 479 Adams v. Cavanangh 153, 154 Adams v. Fitzpatrick 385 Adams V. Greenwich Ins. Co 381, 384, 317 Adams v. McPartlin 469 Adams t. Morgan 134 Adams v. Nellis 85 Adams V. Si em 549 Adamsv.Ward 228,569 Adriance v. Sanders ., 192 Adriance, Piatt & Co. v. Coon 97, 98 Adsitv. Wilson 290 Agricultural Ins. Co. v. Bean 559, 560, 570, 585 Ahoyke V. Wolcott 190 Aikman v. Harsell 506, 522 Akin V. Albany Northern E. Go 196 Albany Brass and Iron Co. v. Hofifman 187, 193, 365 Albert! V.N. Y., L. E. & W. E. Co 270 Albro V. Blume 43>) Alexander v. Byron , 253 Alexander Lumber Co. v. Abrahams 50 Alger V. Conger 518 Allen V. Albany Ey.. 543,549 Allen V. Bodine 259 Allen V. Hendree 164 AUenv.James 395 Allen V. Mahon 559. 57 1 Allentown F. & M, Works V. Loretz 84 Allis V. Leonard ^ 275, 330, 33L xxviu Table of Cases, xxix Page. Ji-llison V. Scheeper. 265, 335 American Encaustic Tiling Co. v. Reich 253 American Grocery Co. v. Flint 101 American Hosiery Co. v. Riley 665 American Life Ins. Co. v. Van Epps 517 Ames V. Webbers 830 Amherst College v. Ritch 8S7 Amore V. LaMothe 35 Amsinok v. North 186, 187, 190 Anderson T. McCaiin 515 Anderson v. Morice 82 1 Anderson v. Spears 217 Anderson v. Vandenburgh 634 Anderson v. West 168, 408 Anderson v. Young 309 Andrews v. Cross 526 Andrews v. MonilawB 591 Aadrews v. O'Mahoney 426 Andrews v Prince 153 Andrews v. Shaffer 214 Andrews v. Townshend 188 Angel V. Clark 435 , Angell V. C!ook 279 ' Ankersmitv. Tuch 253, 276 ; Anonymous , 29, 31 Ansonia Brass & Copper Co. v. Pratt 317 Anthony V. Smith 252,255 Apel V. O Connor 120 Appleby v. Astor Fire Ins. Co 324 Appollinaris Co. v. Venable 164 Archer v. N. Y., N. H. & H. R. R. Co 270 Argall V. Pitts 607 Armstrong v. DuBois 400 Armour v. Leslie 216 Arnold v. Angel 3 1 1, 592 Ainold V. Clark 82 Arnold V. Oliver 665 Arnold v. People 337 Arnoux V. Homans 401 Arrow Steamship Co. v. Bennett 634 Asinari v. Volkeening 86, 470 Astor V. Palache 110, 114,115,547 Ashton V. City of Rochester. 373 Atkins V. Lefever 493 Atlantic Dry Dock Co. v. Libby 551 Atlantic, etc. Tel. Co. v. Baltimore, etc. R. Co 654 Atwater v. Atwater 615 Atwood V. Barney 272 Atwood V. Welton 279 XXX Table of Cases. Page. Austin V. Ahearne 422 Austin V. Hiackley 97 Austin V. Mom oe 35 Austin V. Rawdon 312 Averell v. Barber 666 Averill V. Emerson 73 Avery V. Foley 384 Aymar t. Chace 598 Ayraultv. Chamberlain 250, 251, 32S Ayrault v. Pacific Bank 337 Ayrault v. Sackett 398 Ayrea V. Water Comm 265 B Babbitt v. Crampton 186 Babcock V. Balaton 146 Babcock v. Clark 649 Babcock v. Kuntzsch 638 Bacon V. Comstock 602 Bagley v. Bows 321 Bagley V. Ostrom 230,231 Bailey V. Daigler 482 Bailey V. Johnson- 304 Bailey v. Murphy 34 Bailey V. Stowe 487, 568 Bain V. Thomas 88 Baine v. City of Eochester 491, 502, 503, 504 Bairdv. Daly 260 Baird v. Poole 299 Bakeman v. Pooler Ill Bakeman V. Rose 280,281 Baker V. Baker , 433, 444, 434, 436 Baker v. Burton 525 Baker V.Cook - 641 Baker v. Moore 383, 399 Baker v. Simmons , 340 Baker v. Spencer 180 Balcom v. Adams 153, 157 Balcom v. Terwilliger 479 Baldwin v. McArthur 18 Baldwin v. New York, etc., Nav. Co 50 Ball v. Eveaing Post Pub. Co 150 Ball V. Loomis 408 Ballou V. Parsons 39, 303, 396. 569 Bander V. Coville 197 Bangs V. Selden 90, 97, 647 Bank of Attica v. Metrop. Nat. Bank 304 Bank of Attica v. Wolf 510 Bank of Commerce v. Michel 166, 167 Table of Cases. xxxi Page. Bank of Genesee v. Spencer 66* Bank of Havana v. Mager 398 Bank of Havana v. Moore 641, 663 Bank of Pictsburgh v. Murphy 148 Bank of St. Albans V. Knickerbacker 9''' Bank of Silver Creek v. Browning 155, 161 Bank of U. S. v. Strong 103 Banks v. Am. Tract Society 39 Banks v. Maher 650 Bantav. Marcellus 666 Bantcs V. Brady 417 Baptist Churcii v. Brooklyn Fire Ins. Co 275 Barberv. Cromwell 138,129 Barclay v. Brown 610 Barclay V. Quicksilver Mining Co 318 Barker v. Cook 634 Barker v. Sivage 337 Barker v. White 508, 511 Barkley v. N. Y. C. & H. R. E, Co 38 Barlow V. Scott '. 63 Barlow v. Barlow 494 Barnard v. Onderdonk 469, 474 Barnes v. Brown 366 Barnes v. Ferine 333 Barnecv. Quigley 304 Barnes v. Seligman 303 Barnes v. Stoughton 468 Barnes V. West 61,68 Barney v. Keith 485 Barrett V. Third Ave. R. Co 32,310,321 Barrick v. Austin 315 Barron v. Sanford 653 Barry v. Equitable Life Ass 509 Barry v. Mut. Life Ins. Co 40 Bartholomew V. Lyon -. 315 Bartlett v. Musliner 204 Barto V. Himrod 348 Barton V. Speis 82,83 Barton v. Cleveland 110, 547 Bassett v. Fish 398 Bassham v, State 261, 263 Batchelor v. Albany City Ins. Co 70, 73 Bates V. James 636 Bates V. Norris 490 Bates V. United Life Ins. Assn 646, 654 Bathgate v. Haskin 30, 113, 114, 117, 499 Battershall v. Davis 48, 667 Batzel V. Batzel 59 Baulec v. N. Y. & Harlem R. Co 309 xjixii Table of Cases. Page. Bauman V. N. T. Cent. R. Co 587 Baxter V. Davis 516 Baxter v. McDonnell 217, 218 Beach v, Gregory 407 Beach v. Mayor 147, 148, 153 Beal V. Day 165 Beal V. Hayes 314 Beal v. Union Paper Box Co 633 Bean V. Tonnelle 151,662 Bear v. American Rapid Tel. Co 370, 354 Beard v. Tilghman 50, 303 Beard V. Yates 304 Beards v. Wheeler. . . 114 Beams v. Burras 192 Beattie v. Qua 574 Beck V. Eugglea 101 Becker v. Boon 464, 498 Becker v. Hotchkiss 631 Becker v, Koch ... 257, 283 Becker v. Lament 40 ; Becker V. Town of Cherry Creek 9t Bedell v. Barnes 513, 517 Bedell v. Commercial Mut. Ins. Co 334 Bedell V. Powell 254 Beekman v. Ifeed 198 Beers v. Hendrickson 33 Beldenv. Slade 509 Belknap V. Mclntyre 321 Belknap v. Sealey 318, 408 Bell Y. Donohoe 84 Bell V. Judson 667 Bell V. Litt 160 Bell V. Mayor 71 Bell V. Noah 53, 533 Bellv. Prewitt 260 Bellv. Shibley 335 BeUv. Vernoay 123,125, 126, 131, 654 Bell V. Whitehead Brothers 96 Bellinger V. N. T. Cent. R. Co 265 Belmont V. Erie Ry. Co 662, 663, 665 Belmont v, Ponvert 356, 587 Bait V. American Cent. Ins. Co 539 Beltonv. Baxter 313 Bemis V. Bronson 299 Bemisv.Kylo 283 Bender v. Sherwood 107 Bendit v. Annesly 479,490 Bentdict v. Hibbard 98 Benedict v. Richardson lyl Table of Cases. xxxiu Page. B inediot v. Sliter 516 Benjamin V. Welch , 323 Bennett v. Buchan 400 Bennett v. Cooper 6 Bennett V. Edwards 639 Bennett V. Judson 302 Bennett V. Matthews 346 Benson V. Berry , 334 Benson v. Le Roy 418 Bantley v. Jones ._ 587 B ^rg V. Parsons 315 B'igen V. Carman 435 Birgen v. Snedeker 420 Berger v. Varrelmann 485 Beils V. Metropolitan El. R. Co 395 Berney \. Drexel 314, 216 Bsrnhard V. Kapp 53 Bsrnhard v Kiiapp 533 Bsrnhardt V. Lyir burner 468 Berrian V. Sanford 867, 368 Berry v. Rowley ^ 51 Berwick v. Halsey 516 Bettis V. Goodwill , 114, 115 Betz V. Conner 338 Bevins V. Albro 34 Bickett V. Taylor 809 Bickf ord v. Searles 509 Bicknell V. Byrnes. 435,426 Biddlecom v. Newton 826 Bidwell V. Lament 319 Biershenk v. Stokes 323 Bigelow V. Bailey 436 Bigelow V. Heaton 664 Bigler v. Duiyea 149 Bingham v. Bingham 89 Bingham v. Moulton 513 Binghamton Iron Foundry V. Hatfield 94 Binsse v. Wood 317 BirdsaUv. Patterson 63, 123,873, 375, 376, 377 Birdseye y. Goddard 397 Bishop V. Bishop 396 Bishop V. Edmiston ^ 215 Bishop V. Empire Transp. Co. .384^ 634 Bissel V. Drake 184 Bisselv. N. Y. C. & H. R. R. Co 627 Black V. Brooklyn Hights R. Co 552 Black Y. Camden & Amboy R. Co 257 Black V. Poster 289 Black V. OBrien 505 xxxiv Table of Cases. Page. Black V. White 63 Blackley v. Sheldon 344, 346 Blackstone Bank, etc, v. Bogart .' 69 Blairv. Pelhatn 270 Blake V. James 497 Blake v. Michigan Southern, etc. , R. Co 103 Blashfieldv. Blashfield 494 Blashfield v. Empire State Tel. Co 368 Blashfield V. Smith 624 Blason V. Bruno 639 Bleekerv. Smith ; 94 Sleeker V, Storms 89, 94 Blennerhaeset v. Stephens 149 Blewett V. Tregonning , 263 Bless V. Morrison 368 Blumberg V. L ndemau 187 Board of Comm. of Pilots v. Spofford 117 Board of Supervisors v. Broadhead 37 Bookea v. Lansing 366 Bocklen v. Hardenbergh , 384 Bode y. Maiberger 662 Bodwell V. Willcox 633 Bogardus v. N. Y. Life Ins. Co 318 Bogert V. Bancroft 634 Bointon v. Lapham 634 Bok v. Vincent 283 Bellas V. Duff 667 Bolton V. Corse 82 Bolton V. McCulIough 128 Bolton V. Shriever 544 Bonesteel v. Lynde 140 Bonnell v. Griswold 216, 401 Bonner v. McPhail 133, 413 Booth V. Boston & Albany R. Co 334 Booth V. Smith , 560 Booth V. Whitley 330 Boorman V. Atlantic & Pacific R. Co 192 Boorman v. Pierce I47 Boos V. World Mut. Life Ins. Co 350 Bortle V. Mellen 407 Boston Mill. v. Eull 488^ Boston Nat. Bank v. Armour g5g Bostwiok V. Barlow 3gQ Bostwick V. Brown. 513 Botts V. Coziue 84 Bouoicault v. Boucicault g^^ Bourdon v. Martin 52q Bowe V. Brumbauer jgg Bowen V. Nat. Bank of Newport 184,185 Table of Cases. xxxv Page. Bowman V. Ely 93 Sowman v. Sheldon 633, 638, 663 Bowne v. Anthony 666 Bowne V. Lynch 468 Bojd V. Lewis 280 Boylen v. McAvoy 634 Boynton t. Boynton 280 Boynton v. Hoyt ; 109 Brackett v. Dudley 165 Bracy v. Kibbe 284 Bradburry t. Winterbottom 106, 107 Bradford v. Downs 89 Bradley V. Aldrich 59, 60, 592 Bradleyv.Fay 537 Bradley v. McLaughlin . , 885 Bradley v. Walker 550 Bradner v. Howard 487 Bradner v. Strong 288 Bradshaw v. Combs 257 Bradstreet v. Bailey 190 Brady v. Durbrow .488, 545 Brady v. Nally .291, 293 Brady v. Smith 481 Brainard v. Hanf ord 208 Brandon Mfg. Co. v. Bridgman 153 Brassell T. N. T. C. & H. R. R. Co 814 Brassington v Rohrs 223 Braydon v. Goulman 252 Breese v. Busby 425 Breckenridge Co. v. Perkins 610 Brennen v. North 479 Brennan v. Security Life Ins. Co 248, 250, 337, 328 Brevoort y . Brevoort 221 Brevoort v. Warner 188 Brewer v. Brewer 548 Brewer v. Press Pub. Co 170, 171 Brewster v. Hatch 221 Brewster v. Stewart 102 Briedert v. Vincent 315 Bridenbecker v. Mason ll'i Bridgeport City Bk. v. Empire Stone Dressiog Co 321 Bridgeport F. & M. Ins. Co. v. Wilson 492 Bright V. Milwaukee, etc. R. Co 545 Briggs V. Allen , 494 Briggs V. Briggs 90 Briggs V. Boyd 407 Briggs V. Gardner 253 Briggs V. Gaunt 102, 103 Briggs V Merrill 326 xxxvi Table of Cases. Page. Briggs V, Waldron 287, 290, 324, 409 Brigga v. Wheeler 375, 289 Bright V. Milwaukee, etc., E. Co 668 Brillv. Lord 228 Brink V. Home Ins. Co 99 Brink v. Republic Fire Ins. Co 71 Brinker v. Loomia. 514, 515 BrinckerhuflE v. Bostwick 59, 60 Brinkley V. Brinkley 131, 373,375,389,476 Briaban v, Hoyt 165 Brittan v. Peabody 89 Brittonv. Bohde 869 Britton v. Macdonald 148, 149 Broad St. Nat. Bank V. Sinclair 153 Brockway v. Jewett 629 Brokaw V. Bridgman 165,167 Bronner v. Frauenthall 273 Bronner v. Loomis 658 Bronner Brick Co. v. M. M. Cauda Co 479 Broome v. Taylor 217 Broome V. Wellington 38 Brooklyn Croaatown R. Co. v. Strong 258, 279 Brooklyn Life Ina. Co. v. Pierce 188 Brooklyn Oil Worka v. Brown ... 237, 228, 330 Brooks V. Harrison 317 Brooks V. Mortimer 118 Brotherton v. Wright 497 Brown v. Brown 57 Brown V. Butler 366 Brown V. Clifford 142, 377 Brown v. Ferguson 567 Brown V. Jonea 267 Brown V. Keogh 640 Brown V. Littlefield ,184 Brown V. Marigold 6SS Brown v. Masten 89 Brown V. Mayor, etc., of N. Y 315 Brown v. Moran , 227 Brown v. Root Mfg. Co 66 Brown V. Sears 571, 573 Brown V. Says 95, 164 Brown v. Wakeman , 289 Brown v. Windmuller , 568, 571 Brown v. Murdock . •. 533 Brownell v. Marsh 89 Brownell v. Nat. Bk. of Gloversville 193 Brownell v. Ruckman 656 Browning y, Marvin 363 Browning v. N. Y. L. & W. R. Co 494 Table of Cases. xxxvii Page. Browning v. Paige 199, 233 Bruce v. Burr 272, 806, 311 Bruce v. Kelly 253 Bruce V. Westervelt 331 Bruen V. Manhattan Ry. Co.. 483 Brumskill V. James ,. 316 Brusic V. Peck Bros. & Co 251, 329 Bryony Durrie 543, 549 Bucher V. Carroll 60 Buckland v. Gallup 513 Buckley V. Buckley 36, 260 Buckley V. Keteltas 230, 231, 331, 333 Bucking V. Hauaelt 222, 601 Bucklin v. Chapin 125, 126 Budd V. Jackson 144, 499 Budge V. Northam 93, 94 Budlong V. Van Nostrand « 257 Buell V. Gay 490 Buell V. Van Camp 639, 640 Buess V. Koch 215 Buffalo Catholic Inst. V. Bitter 216 Bulger V. Coyne 216, 438 Bulger V. Rosa 321 Bull V. Babbitt 98 Bullard v, Pearsall 282, 283 BuUard v. Sherwood 607 , 608 Bullock V. Bemies 365 Bullwiaker v. Ryker 591 Ban V. Hoyt 343 Bunce v. Reed 423 Burcliell v. Osborne 468 Burden v. Pratt 261 Burdick v. Freeman 332 Bui dick V. Hale 488 Burhaus v. Blanchard 537 Burhaus v. Tibbetts 345, 479, 480 Burk V. Oandee 543, 551, 554,556 Burkev. Wolfe 273 Burllngame v. Parce 84 Burnet V. Kelly 481,484 Burnett v. Phalon 296, 668 Bumettv. Westfall 114,117, 665 Burns V. D. L. & W. R. Co 494, 531 Rurrill V. Watertown, B. & L. Co 180 Burrows v. Erie Ky. Co 814 Burton v. Linn - 426 Bushnell V. Duranl 97 Bushnell v. Eastman 68 ' Bushwick Savings Bk. v. Traum 436 xxxviii Table of Cases. Page. Butchers Green v. Middlesex R. R. Co 150 Green v. MiddJesex Valley R. Co 273 Green v. Miller 309 Green v. Putnam 455, 457 Green v. Storm ^ 508 Green V. Telfair 341, 342 Green V. Trustees of Canandaigua 481, 483 Green V. "Willis 233 Greenfield v. Mayor 37 Greenfield V. People .241, 242, 244, 245, 346 Greenwood v. Marvin 404 Greenv. Allen 148, 152 Greer v. Greer 290 Greggv. Howe 225, 226, 228, 231 Gregory v. Cryder 395, 396, 397 Greismann v. Dreyfus 160 Greville v. Chapman 263 Grifian V. Brown 488 Griffin V. Griffin 476, 506. 507 Griffin v. Round Lake, etc., Ass'n 83, 83 Griffith T. Staten Island R. Co 310 Griggs V. Day 863 Grimm V. Hamel 182, 378, 293 Grimshaw v. Woodfall 315 Grindal v. De Lano 196, 198 Grisler V. Stuyvesant 550 Groatv.Gile 337 Grocers' Bank v. Penfield » 409 Grocers' Bank V. O'Eorke » 61 Groesbeeck v. Dunscomb 213, 216 Guckenheimer v. Angevine 573 Guenther V. Amsden 301, 303 Guiterman v. Liverpool, etc., S. S. Co • 264, 365 Guleretta V. McKinley 278,280,284 Gundlin y. Ham burg- American Packet Co 296 Gunning v. Quinn 35 Gurnee V. Hoxie 197,334 Gurney v. Snaithson 334 Gurney v .Union Transfer, etc., Co 556 Gustaf V. American Steamship Co 155, 158 Gray V. Mead ^ 267 Guyon y. Knapp.... «„..».., » 468 H Haackv. Fearing 268 Haberstick v. Fisher 199 'v' Table of Cases. Page. Haff T. Spicer 640 liagaman v. Burr 322, 32a Hag:er v.Danfonh 138 Hager v. Hager 341 Haggart v. Morgan 290, 337 Haines v. Davis 233 Haines v. Hollister 218 Haines v. N. Y. C. & H. E R. Co 323, 324 Halbert V. GibbB .. 562 Halev.Omaba Nat. Bdnk 215, 591 Hale V. Rogers 148, 150 Hale V. Swinburne 131 Hall V. Barton 169 Hall V. Bartlett 216 Hall V. Beston 383, 386, 387, 391 Hall V. Brennan 515, 516 Hall V. Dwinell 230 Hall V. Earnest 293, 296 Hall V, Euamons. 659. C63 Hall T. Gouid 3ul Hall V. Holt 106, 107 Hall V. Linds 493 Hall V. Partridge 419 Hailgarten v Eckert 665 Halpern v Nassau El, R. Co 329 Halpinv, Third Ave. R. Co 313 Halsey v. Carter 397 Halsey v, Sinsebaugh 267 Halsted v. Halsted 420 Halsted v. Manhattan Ry, Co 243 Hanel v. Baare 563, 5b4 Ham V. "Van Orden 288 Hammel v. Stern 333 Hamilton v. Butler 533, 534, 563 Hamilton v. Eno. ... 333 HamiltoQ v. Hudson , 156 Hamilton v. Morris 421 Hamiltou V. N. Y , Cent, R, Co 293 Hamilton v. Third Ave. R. Co 303, 409 Hammond v. Baker 84 Hammond v. Hopping 184 Hammond V. Morgan 61, 123, 376 Hammtmd v. Slocum 506 Hancock v. Hancock 610 Hand v. Burrows 163, 274 Hand v. Kennedy 58 Hand v. Shaw 247 Hangen v. Hachemeister 180 Hunkinsoii v. Vantine 283 Table of Cases. Ivii Vage. Hanna v. Dexter 56& Hannah v. Dexter 53") Hannah V, McKillup 280.284 Hanover Fire Ids. Co. v. Germania Fire Ins. Co 053 556 Hanover Nat. Bank v. Linneworth 541 Harbison v. Van Valkenburgh 188, 191 Hardv.Ashley 290 Harden V. Corbett 69 Harding v. Kretzinger 184 Harding v. Croft 444 Harding v. Harding 131 Hardy V. Norton 261, 338 Hardy v. Peters 153 Harnett v. Garvey 365 Harper v. Allyn 630 Harper v. Chamberlain 493 Harrington v. City of Brooklyn 503 Harris v. Brown 663 Harris v. Clark 95 Harris v. Hamrmnd 587 Harris V. Mead 71 Harris v. Taylor , 640 Harris v. Todd 313 Harris v. Waite 441 Harrisburgh Bank v. Forster 342 Harrison v. Peck 46 1 Harrison v. Rowan , 360 Harrison v. Wood 320 Harrold v. New York, etc , R. R. Co 151 Harroun v. Brush El. Light Co 13 narrower v. Betts 98 Hart v. City of Brooklyn 502 Hart V. Butterfield 664 Hart V. Hudson 301 Hart V. Hudson River Bridge Co 312, 313 Hart V. Ogdenaburgh, etc., R. Co 191, 174, 175 Hartman v. Manhattan Ey . Co 63 Hartman V. Spencer 94 Hartness V. Boyd 233, 25'?. 360 Hartshorn v. Gelston 133, 1 34 Harvey v. Rickett 341 Hastings V. Palmer 3)3 Hatch V. Attrill ". , 344 Hatch V. Fogarty 407, AOH Hatch V. Pengnet 122, 376 Hataeld V. Malcolm 863, 431 Hathaway v. Helmet 342 Hathaway V. Russell 417, 418 Hathaway v. Scott 64& 'Iviii Table of Cases. Page. Hanck V. Craighead..... '^^^ Haupt V. Pohlmann 330 Hanselt v. Vilmar 510 Uausmann v. Moore ^8 Houaeman v. Sterling 188 Ha wes v. Dobbs 60 Hawke V. Hawke 57 Hawkins v. Avery 186 Hawley v. Davis 115, 532 Hawley v. Whalen 474 Hayden V. Van Cortlandt 193 Hay e V. Robertson 493,569 Haynes v. Ledyard 260 Haynes v. Mosher 558, 570 Hays V. Garson , 96 Hays V. Miller 314, 400 Hays V. Riddle 184 Hayward v. Saver 259 Hazlewood V. Hemingway 171 Hazzard v. Wilson 83 Healy v. Murphy 815 Heath v. Barmour 497 Heath v. Forbes 494 Haeth V. U.S Building Loan Co 588 Hebbard v. Haughian 159 Herbert v. Lawrence 31, 82 Hecker v. De Groot 215 Hedges V. Methodist, etc., Church 72 Hedges v. Williams 181, 274 Hegemanv. Coutrell 62, 123, 344, 375, 377 Heilbrun v. Hammond 408 Heilman V. Lazarus 552 Heintz v. Bellinger 481 Heishon v. Knickerbocker Life Ins. Co 146, 152, 154 Hemenway v. Knudson 163, 169, 171 Hemmingway v. Spaulding 94 Hempstead v. N. Y. C. & H. R. R. Co 304, 305 Henlo w v . Leonard . ; 345 Hennequin v. Butterfield 58 Hennessy v. Paulsen 108 Henning v. Miller 66, 516 Henriques v. Yale University 217, 220 Henry v. Mead 174 Henry Hess & Co. v. Baar 2^8 Herbert v. Duryea 247 Herbert V. Griffith 100 Herbert V. Spring 188 Herbst v. Vacuum Oil Co 39 Herman v. Girvin 485 Tabli; of Cases. lix Page. Hernian v. Lyons 115, 532 Si^rrick v. Smith 285 Herring v. Hoppock 309, 331 Herrington V, Robertson 505 Hertz V. Minzesheimer 276 Herzig V. Metzger 664 Hesse v. Brigge... 155, 158 Heyne v. Blair. 310 Hewitt V. City Mills 567 Hewitt V. Howell 681 Hewitt V. Morris 338, 339 Hewlett V. Brown 560 Hewlett V. Cock 271 Hewlett V. Wood.... 57, 121, 296 Hibbard v. Commercial, etc., Ins. Co 129 Hibbard v. Randolph 118 I'ickenbottom V. D. L. & W. R. Co 294 Hicks V, Brennan 560, 634 Hicks V. Charlick 191 Hickox V. "Weaver 30, 36, 85 Higbie v. Guardian Mut. Life Ins. Co 265 Higham v. Qault 258, 279, 280 Hildreth v. aty of Trov 212, 245 Hill V. Co veil ". 348 Hill V. Grant 401 Hill V. McReynolds 463 H;11 v. Northrup 113 Hill V. Simpson 58 Hill V.Smith 667 Hill V. Water Coram 251 Hills V. White 335 Hilton V. Patterson . . 661 Hilton Bridge Co. v. N. Y. Cent. & H. R. Co 35 Hinchman V. Butler 94, 96 Hinds V. Myers 505 Hinds V. Schenectady Co. Mut. Ins. Co 586 Hine v. Bowe 834 Hine v. New York El. R. R. Co 89 Hinm&n v. Bergen 535 flinman v. Ryder 549 Hirshbach v. Ketchum - .-. 38 His V. Edison El. Light Co 254 Hoagland V. Wight 402 Hoarv.Hoar 287 Hoard v Peck 265 Hobart v. Hobirt 131, 655 Hobson V. N. Y. Condensed Milk Co 310 Hochstetter v. Isaacs 30O Hodge V. City of Buffalo 375, 316 Ix Table of Cases. Page. Hodgkins v. Mead 345, 34(> Hotf man v. Barry 587 H off man v. Livingston 663- Hoffman V.N. Y. C. & H. R. R Co 258, 331 Hof man v. Seixas , 192 Hoffman V. Sparling 93,94,138 Hoffman v. Treadwell 657 Hoffman v. Van Nostrand 3T Hogaa V. Glufok 301 Hogan V. O'Brien 38a Holbrook v. Utica & Schenectady R. Co 335 Holden v. N. Y. & Erie Bank 368 Holdrldge V. Scott 513 Hollister v. Englehart 311 Holly Mfg. Co., V. Yenner 191 Holmes V. Anderson 377 Holmes v. Bennett 127, 128 Holmes V. Moffatt i9o. 296 Holmes V. Roper 294 Holmes & Griggs Mfg. Co. v. Morse 572 Holtz V. Schmidt 188 Holzmann v. Monell 320 Honstine v. O'Donnell 277 Hood V. Hood 299, 371 Hoodless V. Brundage 488 Hooker v. City of Rochester 393, 597 Hooker v. Eagle Bank 184 Hooker v. Rogers 2i7 Hoover v. Rochester Printing Co 663 Hopcraft v. Lachman 335 Hope V. Lawrence 334 Hopkins v. Walley 468 Hornfager v. Hornfager 667 Horrocks v. Thompson , 44 Horton v. Barnes 151 Horton v. Brown 353, 514 Horton V. Jordan 488 Hosmer v. Gaus ,i75 Hotchkiss V. Germania Fire Ins. Co 258, 276. 279. 280, 28". HotchkisB V. Mosher 184 Houck V. Lasher ^ 88 House V. Eisenlord 505, 511 Howard V. Freeman 231 Howard v. hiayes 249 Howard v. McDonough 267, 268 Howe V . Lloj d 353. Howe V. Muir 3q1 Howell V. Biddlecom 402 Howell V. City of Buffalo 350^ 502: Table of Cases. Ixi Page. Howell V. Huyck 184 HoweU V. Van Sicklen 539, 550 Howell V. Wright 323 Howland V. Lennox 586 flowland v. WUletts 338 Hoxle V. Greene 350, 328 Hoyt V. American Ex. Bank 190, 192 Hoyt V. Campbell 651 Hoyt V. Long Island R. Co 337 Hubbard V. Nat. Protec. Ins. Go 90, 92 Hudson V. Caryl 59 Hudson River Tel. Co. v. Watervliet T, & R. Co 551 Hudton V. Caryl 57 Huerzeler v. C. C. T. R. R. Co 337 HuflE V. Bennett 267 Huffman v. Beever 399 Hughes V. Hughes 444 HuUv.Hart 86, 648 Hull V. Hull 97 Hultjurt V. Hulburt 331 Hunn V. Norton 507 Hunv. Salter 554 Hunnewell v. Shafer 205 Hunt V. Chapman 553 Hunt V. Fish 282 Hunt V. Maybee 315, 337 Hunt V. Middlebrook 541 Huntv.Wallis 660 Hunter v. American Popular Life Ins. Co 327 Hunter v. Le Conte 641 Hunter v. Third Ave. R. Co 333 Hunter v. Wetsell 283 Huntington v. Conkey 250, 252, 327, 328 Huntington v. Moore 544, 553 HuntUy V. Huntley 601 Huntoon v. Russell 342 Hurd vs. Farmers' Loan & T. Co 543 Hurd V. Swan 138 Hurliman v. Seckendorf 219 Hustis V. Aldridge 66 Hutchinson v. Wheeler 279 Hyatt V. Johnson 309 Hyatt V. Roach 69, 138 Hvnes V. McDermott 335 I Ihl V. Forty-second st. R. Co 310 lUston V. Evans 321 Imgard V. Duffy 96 Ixii Table of Cases. Page. Immaculate Ccraception v. Sheflfer '^^ Improvement Co v. Munson 309 lugraham v. Gilbert '^^^ IngersoU V. N. Y. C. & H. R. R. Co 314 IngersoU v. Town of Lansing 342, 344 In Re Peterson 29 international Life Ins. Co, v. Sweetland 90. 93 Irish V. Horn ~ • • • 373 Irwin v. Deyo 558 Isear v. Dayiius 101 Iseliu V. Graydon , 541 Isnard v. Cazeaux 631 Ives V. Ives 31,48, 07 Ives V. Jones 167 Ives V. Waters 272- J Jaokett V. Judd 52.3, 530 Jacob Hoffman B. Oa v. Volpe 532 Jacobie v. Mickle 4tj9^ Jackson v. Andrews 37& Jackson v, Bradt 455 Jackson v. Brown - 236 Jackson v. Brownson 197 Jackson v. Bnrtis 141 Jackson v. Carpenter 83^ Jackson v. Denison 141 Jackson v. Dickenson - 345 Jackson v. Edwards 83 Jackson v. Etz 284 Jackson v. Ferguson 653 Jackson v. Figaniere .■ 541 Jackson v. Giles 651 Jackson v. Gumaer . . 641 Jackson v. Hawks 843, 346 Jackson v, Judd , 536 Jackson V. Leggett 315 Jackson v. Lewis 281 Jackson v. Lynch 535 Jackson v. Marsh 185 Jackson v. McBurney , 530 Jackson v. Pell 230 Jackson v. Smith 634 Jackson v. Son 261 Jackson v. Stiles 90 Jackson v. Van Seyke 217 Jackson v. Virgil 640 Jackson v. Wakeman £26 Jackson v. Wilson 060 Table of Cases. Ixiii. Page. Jackson V. Wood worth 168 JafiEray V, Hunter. 85 James V. Bennett , 109 James v. Horn 413, 415- Jamieson V. N. Y., etc, R. Co ^75 Jansen v. Tappen 126 Jaques V. Greenwood 60a Jaques t. Morris 215 Jarvis v, Jarvis 384 Jefferson Ids. Co. v. Cotheal 264 Jemison v. Citizens Savingi Bank 17!) Jenkins v. City of Hudson 285- Jenkins v. Hall 301 Jenkins V. Putnam 149, 153 Jiminez t. Ward 150 Jobbitt V, Giles 517 Johnson v. Atlantic Ave. R R Co 68, 70 Johnson v. Brown .303 Johnson V. Catlin IIT Johnson v. Chappell 581 Johnson \. Elwood 324 Johnson v. Everett 588 Johnson v. Fellows 494 Johnson v. Green 660 Johnson V. Hudson River R, Co 312, 313 Johnson v. Lynch 89, 165 Johnson t. People 280, 281 .rohnson v. Rogers 95- .Johnson v. Taber 507 Johnson v. White 50 Johnson V. Whitlook 406- Johnston v. Catlin 49!) Jones V. Butler 539 .Jones V. Brooklyn Life Ins. Co 334, 348 Jones V. Case 532 Jones V. Cook 573, 651, 666 Jones V. Duerk 456 Jones V. Easton 561 Jones T. Grant 55- Jones V. Gray 537 Jones V. Hoy t . ...'. 174 Jones V. Jones 57 Jones V. Metropolitan El. Ry. Co 483 Jonesv. Osgood 336, 337 Jones V. Tucker 364 Jones V. Underwood 271 Jones V. United States Slate Co 667 Jordan v. Hess 545 Jordan V. Garrison 89. 97. S8- Ixiv Table of Cases. Page. Jordan v. Van Epps 469 Joslyn V. Joslyn 300, 366 Judson V. Gray 394 Julion V. Ingalls 83 K Kaempf er v. Gormaa 174 Kahn v. Coen 535 Kahn V. N. Y. El. R. Go 296 Kahn v. Schmidt 510, 568 Kain v Delano 68 Kain v. Larkin 214 Kamp T. Kamp 664 Kane v. Delano 127 Kanna v. Kester 332 Kane V. N.Y., N. H. &H. R. R. Co 334 Kaplan V. N. Y. Biscuit Co 299 Karwowski v. Pitass 262 Katt V. Germania Fire Ins. Co 301 Kaufman v. Canary 310 Kaupe V. Isdell 188 Kavanaugh v. Wilson 258, 279, 316 Kay V. Whittaker 55_ 589 Keating v. Stevenson 299 Xeator V Ulster &D. Plankroad Co 125, 126,362 Keegan v. Third Ave. R. R. Co 289 Keeler v. Poughkeepsie, etc., Co , 73 Keeler v. Van Wie 479, 490 Keenan v. O'Brien 103 Keep V. Keep 6s Keep V.Tyler 100 Kf hrley v. Shafer 339 Keiley v. Dusenbury 63 Keiny v. Ingraham 481, 489 Kelly V. Eck ford 191 Keller v. Feldman 226 Keller V. NY. Cent. R. Co ... 333 Keller V. Payne 68 Keller v. Strasburger 332 Kellogg V. Howell 634 KeUoggv.Raud 468 Kelly V. Cohces Knitting Co 276, 286 Kelly V. Downing 590 Kelly v. Prazier 311 Kelly V. Kelly 308,310 Kelly V, Manhattan Beach Ry . Co ^ 481 Kelly V. Matteam 95 Kelly V. Sheehan 132, 637 Kennedy v. Ball & Ward Co 3^.7 Table of Cases. Ixv Page. Kennedy v, Kenna 69, 73 Kennedy V. McGuire 282 Kennedy v. McKone 114, 399 Kennedy v. Simmona 649 Kennedy v. Wood 229, 330 Kenney V. Apgar 04 Kent V. Quicksilver Mining Co 415 Kentish v. Tatham ' 82 Keogh V. Westervelt ....' 409 Keogh Mfg. Co. v. Mallon 08 Kerker v. Carter 333, 353, 360 Kern V. Towsley 308 Kerr v, Davis 83 Kerr v. McGuire 184 Kerslake v. Schoonmaker 36'i Ketchum v. Van Dusen 247 Keyser v. Kelley 514 Kibbe V. Wetmore 653 Kiernan v. Agricultural Ins. Co 511 Kiernan v. Rocheleau , 334 Kilbourn v. Fairchild 97, 98 Kilburn V. Lowe 475,485 495 Kilmer v. Hathorn 133, 636, 637 Kilmer V. O'Brien 402 Kimball v. Davis .180, 277 Kimberley v. Stewart 518 King v. Barnes 509 King V. Edmunds 240, 344 King V. Jones 228 King V. N. T. Cent. & H. R. R. Co 259 King V. Ross 58 King V. S afford 587 King V. Todd , 514 King V. Townshend 217 King V. Village of Randolph 503 Kings Co. Bank v. Dougherty l87 Kingsland v. Chetwood 435 Kingsland V. Mayor, etc., of New York 544 Kingsley v. City of Brooklyn 69 Kinney v. Roberts & Co 146, 153, (549 Kinnier v. Kinnier 316 Kipp V. Delamater 101 Kirby V. D.&H.C.Co... 383 Kirk V. Blashfield 487 Kirkland v. Moss 150 Kley V. Healy 347, 251 Klock V. Brennan 263 Kluender v. Lynch .290, 334, 337 Klumpp V. Gardner ''.i.'.'.. 662 ^^v* Table of Cases. Knapp V. Fowler 392, 311, 36& Knapp V, McGowan 372 Knapp V. Roche 301, 302, 588 Knickerbocker Life Ins. Co. v. Clark 93 Knickerbocker Life Ins. Co. v. Hill 432 Knickerbocker Life Ins. Co. v. Nelson 59,61, 120 Knlering v. Lennon 52& Knight V. Cunnington 261, 263, 27g Knight V. Forward 275 Kuope V. Nunn 127 : Knowlton v. Atkins 66 Knowlton v. Bannigan 14^ Knox V. Dubraf 203 Kobbe V. Price 249, 328 ■ Kober v. Miller 259 Koehler v. Adler 275, 316, 319, 332 i Koehler v. Brady 552 ' Koehnev. N. Y., etc., E. Co , 295 Koelges V. Guardian Life Ins. Co 328 Kohn V. Manhattan Ry. Co 559 Krakowski v. North N. Y. B. Ass 287 Krauss v. Hallbeimer 170 Kreitz v. Frost 510 Krekeler v. Thaule. 36 Kuehnemundt v. Haar 217 Labarv. Koplin... ;...308, 846, 347 La Beau v. People 359 Laohenmeyer v. Lachenmeyer 645, 654 La Chicatle v. Richmond R. & E. Co 804 Lacustrine Fertilizer Co. v. Lake Guano, etc. , Co 587 La Farge y. Luce 167 La Farge v. Van Wagenen, 425, 655 Laidlaw V. Sage 248,888 Lake Ont. Nat. Bank v. Judson 249, 327 Lake Shore Nat. Bank v. Butler C. Co 400 Lalor V. Fisher 634 Lamb v. Hirschberg 51 Lamkin y. Openheim 688 Lammond y. Volans 316 Lamoure y. Caryl 264 Landon y. Van Ettan 545 Lane y. Borst 3S4 Lane V. Gilbert 51 Lane v. Hayward 304 Lane y. Morse 688 Lane y. Salter 218 Lane ▼. Van Orden 492, 548 Table of Cases. Ixvii Page. Langbein v. Gross 666 Langdon v. Evans 132, 637 Langdon v. Guy 484, 486 tiange v. Garfunkel 249 Lange t. Manhattan By. Co 'i5'6 Langley V. Warner 348 Langley v. Wadswwrth 261 Lansiog v. Hadsall 55, 689 Lansing v. Mickles 95, 164 Lansing v. Russell 132, 376 Lansing v. Van Alstyne 815 Lansing v. Wis wall . . 336 Lapaugh v. Wilson 85 Lapham v. Rice 299 Lasser v. Perkins 329 Latham v. Bliss 490. 536 Lathrop V. Bramhall 367, 368 Lattimer V Livermore 551 Launitz v. Barnum 483 Lawton v. Lawton 372 Law V. McDonald 480 Law V. McDonald 505, 507, 508 Lawrence V. Davis 53 Lawrence v. Samuels 154, 160 Lawson v. Bachman 184 Lawson V.Hill 229, 230 Lazarus v. Metropolitan El. Ry. Co 382 Leach v, Haight 150 Leacrof t v. Fowler 125 Iiearn v. Currier 481 Learned v. Tillotson 123, 375 Leary V.Rice 148, 150, 153 Ledwick v. McKim 312 Leev. Chadsey 275, 276 Lee V. Lee... 476 Lee V. Parker 469 Leev. V.O.Co 34 Leese v. Schemerbom 38 Lef evre v. Lef evre 505 Le Forge v. Chilson 602 Lef rois V. County of Monroe 57 Leflerv. Field 259,369,384,408 Legg V. Doreheim 97 Leggett V. Hyde 322 Leighton V. People. 347 Leighton V. Wood 667 Leitch y. BrothersOiS 395 Lt^n^T. BiMiaett 252 Ljnnou v. rtmiia 39, 126, 398 Ixviii Table of Cases. Lenox V. Eldred °°° Lentilhon v. Bacon ^"^^ Leon V. Echevaria. ^^® Leonard v. Davenport ^^' Leonard v. Mulry ^^ Leonardv. N. Y. C.&H.R.R.Co ^^^ Leonori v. Biehop ^^ Leopold V. Meyer 523 Le Roy V. Brow ne ^'^^ LeRoy V. Park Fire Ins. Co 334 Lesser v. Williams 88 Lever v. Foote *3^ Levin v. Haas - 490 Levin v. Russell 288 Levyv. Loeb 46, 152, 664 Lewis V. Graham 63* Lewis V. City of Buffalo 218 Lewis V. Jones 390, 391 Lewis V. Mott 63 Lewis V. Ryder 253 Lewis V. Vamum 68 Lewke V. Dry Dock, etc., R. Co 243 Lewisohn Brothers v. MuUer 149, 151 Lichtenstein v, Lichtenstein 152 Liegeois v. McCracken 231, 228 LiftchUd V. Smith T 84 Lillisv. O'Connor 484, 485, 572 Lincoln v. Lincoln 131 ( Lindslay V. Deafendorf 493, 510, 516 Lindsley v. European Petroleum Co 248, 327 Lindsley v. Miller 259 Lindsay V. People 286, 293, 295 Lindsay v. Sherman 664 Linkv. Sheldon 286 Linkhauf v. Lombard 309 Lisher v. Parmelee 197 Litchfield v. Flint : 513 Little V. Bigelow 138 Little V. Lynch 396 Livermore v. Bainbridge 403 Livingston v. Cheatham 134. 641 Livingston V. Gidney 39. 396, 397 LiviDgston v. Mildrum 467 Livingston v. Swift ... 661 Livingston v. Vielle Zinc Mining Co. 534 Lloyd V. Thompson 260 Locklin V, easier , 497 Lockman V. Ellis MIO, 547, 668 Lockwood V. Waldorf 485 Table of Cases. 1xix Page. Loeschigk v. Addison 399 Logan V. Thomas 573 Lomer V. Meeker 308, 309, 315, 316 Long V. Lamkin 279 Long V. Lyons 470 Loomis V. Decker 63 Loomis V. Loomis 407 Loop V.Gould ". 156 Loop V. Northup 642 Loosey v. Orser 317 Lord V. Cooke 338 Lord V. Connor 137, 138 Lord V. Spielman 191, 192 Loxd V. Vandenburgh 656 Lorillard V. Clyde , 213,214 Lor^ng T. Morrison 489 Losee V. Bullard 531, 543 Losses V. Ellis 505 Loudoun V. Eighth Ave. R. Co 329 Louis V. Empire State Ins. Co 529 Loveridge v. Hill 287, 393 Low V Graydon 188 Low V. Hart 505 Lowber v. Mayor of N. Y 653 Lowe V. Lowe 257 Lowe V. Eommell 299 Lowell V. Martin 663 Lowenthall v. Lowenthall 121 Lowerre v. Owens 646 Lowerre v. Vail 517, 559 Lowery v, Inman 230 Lowman V. Elmira, etc., E. Co 32 Lucas V. McEnerna 3U Ludewig v. Pariser IRl Lumbard v. Syracuse, etc., R. Co 114, 499 Lund V. Broadhead 488, 489 Lusher v. Walton 129 Lusk V. Hastings 30 Lyman V. Gramercy Club 95, 96, 97 Lynch V. Levy 214 Lynch V. Metropolitan El. Ry. Co 59, 60 Lynch v. Mosher 89, 90. 94 LyDk V. Weaver 117, 480 Lyon V. Brown 344 Lyon V. Adda 271 Lyon V. Manhattan Ry. Co 145, 154. 160 Lyons v. Muratt 86 Lyon V. Yates , 602 Lyons V. N. Y. El. R. Co 291, 293 Lythgoe v. Lythgoe 623 ^^^ Table of Cases. M Page. Mabbett V. White 288 Macias v. Leony 383 Macdonald v. Garrison 281 Mac Kellar v. Rogers 59, 60, 6i Mackey v. Auer 214 Maokinstry.v. Smith . . 289 M-^oNaught'on v. Osgood 133, 373, 375, 377 Macy V. Williams 515 Madison University v. White 61, 123, 375, 376 Magee v. Badger 333, 338 Magie v. Baker 4u7 Magee v. City of Brooklyn ^ ... 302 Magnin v. Dinsmore 117, 500, 545, 553, 668 Magown v. Sinclair 69, 73, 128 Magnolia Co. v. Sterlingworth Co 36 Maherv. Cent, Park, etc., R. Co 313 Maher v. N. Y. Cent. & H. R. R. Co 376 Mahoney v. Decker 339 Mahrv. N. U. F. Ins. Soo 370, 371 Maicas v. Leony 595 Mainv, Pope 361, 555, 556 651 Mairs v. Manhattan Real Estate Assn 334 Mairs v. Remsen 90, 631 Malam. v. Simpson 536 Mallory v. Benjamin 141 Mallory v. Travelers Ins. Co 317 Mandeville v. Avery 508 Mandeville v. Marvin 408, 409 Mandeville v. Reynolds Hi, 367 Mangin v. Dinsmore 558 Manley v. Insurance Co. of North Am 491 Mann V. Tyler 555 Manning v. Manning 417 Manning v. Monaghan 348 Mantles v. Myle 397 Marble v. Lewie 114 Marcly v. Shults 267, 268 Marden v. Marden 199 Margulies v. Damrosch 165, 567 Marie V. Garrison 213, 231 Mark v. City of Buffalo 33, 363 563 Markes v. Epstein 115 Markoe v . Aldrich 273 Marks v. Kmg 396, 333 Marks V. Murphy 206 Marquisee v. Brigham 53 Marquat v. Marquat 316 Marquat v. Mulvy 634 Table of Cases. Ixxi Page. Mai'sti V. Hussey , 5 18 Marsh v. Village of Lansingburgh 503 Marshall t. Davies 252 MarshaU v. Meech 34, 74, 381, 414, 653 Marsle v. Woolsey 155, 158 Marston v. Herbert 53i Marston y. Sweet 51 MarsuUo v. Billatto 558 Martin v. Albro 192 Martin v. Hicks 23l Martin v, Hodges 414 Martin v. Kanouse 634 Martine v. Lowenatine 48 Martin v. Martin 495 Martin V. Mittison 315 Martin v. N. Y. N. H. & H. R. Co 292 Martin v. Rector 438 Martin v. Rochester Grer. Ins. Co 50 Martinv. Windsor Hotel Co 69, 72 Maryott v. Thajer 69 Marx V. Gross 51, 526 Mason v. Brown 98 Mason & Hamlin Organ Co. v. Pugsley 38, 169, 177, 178, 181 Massoth V. Del. & Hud. Canal Co 331, 314 Masterson v. Townsend 316 Mather V. E. M. Co 185 Mathew v. Parsons 283 Mathews V. Poultney 508 Matson v. Abbey 515 Matson \. Farm Buildings Ins. Co 325 Matter of Accounting of Morgan 287 Matter of Argus Co 647 Matter of an Attorney 26, 39, 163 Matter of Attorney- General 153 Matter of Attorney-Gen. v, Continental Life Ins. Co 414 Matter of Bailey 84 Matter of Barnes ►. 84 Matter of Barnett 543 Matter of Bender 188 Matter of Bradner . . 657 Matter of Brewster 29 Matter of Bronson 150 Matter of Bryan 148 Matter of Burchard 23 Matter of City ot Brooklyn 475, 480 Matter of Cooper 23 Matter of Corwin 685 Matter of Crane 665 Matter of Crosby v. Day 69 '^'^'i Table of Cases. Page. M<)tter of Dodge v. Stevenson Mfg. Co 341 Matter of Dupuy 18 Matter of Eldridge 29, 30, 181, 210 Matter of Empire City Bank 59 Matter of Gains 148 Matterof Gale 37 Matter of Grade Crossing Oomm 475, 480, 54a Matter of Guardian Savings Inst 414 Matter of H 36 Matter of Harwood 520 Matterof Health Department v. Weeks 383, 387, 401 Matter of Hemiup 380 Matter of Holden 475, 543 547 Matter of Will of Hutchings 274 Matter of Ketchum 668 Matter of Kimball 610 Matter of Knickerbocker Bank 655 Matter of Lake Shore & M. S. Ry. Co 544 Matterof Will of Lasak 298, 294 Matter of Lexington Ave 33 Matter of Livingston 665 Matter of Manning 10 Matter of Mayor of New York .20, 31 Matter of McAdams 543 Matter of McLean 640 Matter of Moore 48 Matter of Morton 514 Matter of Munger , 32 Matter of N. Y. C. R R. Co 637 Matter of N. T. Cnl. & H R. R. R. Co 132 Matterof N. Y. L. & W. Ry. Co 640 Matter of N. Y. & O. M. R. Co 665 Matter of Nolan 157 Matterof Parrish 640, 661 Matter of Prospect Ave 37, 38 Matter of Rhinebeok v. Comm. R. ( !o., . . . . , , 659 Matter of Ryers ly Matter of Village of Rhinebeck 776 Matter of Simpson 543 Matter of Tamsen 566 Matter of Taxpayers of Piattsburgh 567 Matter of V 27 Matterof Wadley 10, 647, 648 Matter of Warde 24, 48 Matter of Water Commissioners 539 Matter of Waverly Water Works 656. Matter of Whitney 163 Matter of Willett 572 Matthews v. Duryee 408, 43& Table of Cases. Ixxiii Page. Matthews v. Duryer 408 Matthews v. Matthews 60 1 Matthews v. Matson 566 Matthews v. Meyberg 287 Matthews v. Moran 279 Mattice v. Allen 261, 283 May V. Moore 66 Mayer v. Apfel 648, 6155 Mayer v. Dean 323 Mayer v. Noll 156 Mayer v. People 360 Maynard V. Chapin 168 Mayor v. Coffin 101 Mayor v. Erben 408 Mayor V. James 61 Mayor of N. T. v. N. Y. & S. I. Ferry Co. 661 Mayor, etc., of N. T. V. Genet .~. 136 Mayor of N. Y. v. Lyons 634 Mayor of N. Y. v. Mason 315 Mayor v. Second Ave. R. Co 267 McArthur v. Chemical Fire Ins. Co 304 McArthur v. Soule 273 McAndrew v. Whitlock 384, 401 McBride v. Chamberlain 513 McBride v. Langan 198 McCabe v. Brayton 278, 295 McCall V. Sun Mut. Ins. Co 163 McCarty v. Edwards 59 McCarthy v. Innis 494 McCarthy v. Peake 84 McClave v. Gibb 375, 378 McCleary v. MoCleary 131, 388 McClung V. Foshour 593 McCInre v. Board of Supervisors 352 McClure v. Supervisors of Niagara 502 McCallum v. Seward 265 McCombv. Kellogg 531 McOomber v. Granite Ins . Co 302 McCombie V. Spader 288 McCoon V. White 150 McCormick V. Penn. Cent. R. Co .... . 268 McCotter V. Haaker 315 McConnv. N.Y. C.&H. R. R. Co 47, 667 McCuUochv. Aeby &Co 639 McCuUoch V. Vibbard 508 McOulIough V. Brodie ,68, 70, 71 McCrackan v. "Valentine's Ex 431 McCready v. Farmers' Loan & T. Co 399 McCreevy V. Ghormley 191 Ixxiv Table of Cases. Page. McDonald v. Garrison 159, 171 McDonald v. Mailory 507 McDonald v. Stevens 71 McElwain v. Corning 298 McEvoy V. Appleby 621 McEwen v. Brewster 621 McFarren v. St. John 115 McGinleyv. U. S. Ins. Co 336 McGoldrick v. Traphagen 272 McGovern v. N. Y. C. & H. R. R. Co 314 McGowan v. Newman 361, 431. 432 McGuffin V. City of Cohoes 352, 502 McGuffia V. Dinsmore 141, 146 McGuire v. Sinclair 319 McIUhanney v. Magie 190 Mclnroy v. Benedict 361, 364 Mcintosh V. Ensign ; 316 McKay v. Marine Ins. Co 226 McKean v. Adams 296 McKpon V. See 64 McKenzie v. HackstaflE 666 MoKivitt V. Cone 269 McKuskie v. Hendrickson 475 McKyring v. Bull 51 McLain v. British & F. M. Ins. Co 262 McLaughtin v. Webster 368 McLean v. Adams . . 169, 181 McLean v. Freeman 510 McLean v. Hoyt 573 McLean v. Stewart 511 McLean v. Tompkins 631 McLees v. Avery 545 McMahon v. Allen 417 McMahon v. Mut. Ben. Life Ins. Co 82 McMahon V. N. Y. & Erie R. Co 408 McManus V. Palmer 383,391 McManus v. Western Assurance Co 638 McMaster v. Booth 69 McMichael v. Kilmer 311 McMonagle v. Conkey 163 McMulkin v. Bates 541 McMullen v. Hoyt 310 McNeil V, Met,, etc., Ry. Co 275 McPhail V. Ridout 96 McPhereon v Rathbone 185 McQuigan v. D. L. & W. R. R. Co 47, 145 McVicar v. Keating 118 Mea V. Pierce 304 Heacham v. Pell 267 Table of Cases. Ixxv Mead v. Shay 289, 328 Mead v. Mallory 586 Mead v. Smith 408 Mechanics' Banking Assn. v. Kiersted 629 Mechanice' Banking Assn. v. Mariposa Co 320 Mechanics & Farmers' Bank v. Smith 245 Mechanics & Traders' B mk v. Winaut 490 Mechl V. Bohwieckart 483 Meede v. Calkins 90, 165 Mellenv Mellen 666 Meltzer V. Doll 258, 259, 279, 358, 504 Menard v. Stevens 834 Mercer v. Sayre 258 Mercer v. Vose 266 Merceron v. Fowler 519 Merrill v. Consumers Coal Co 279 Merrill v. Grinnell 94 Merrill V. Ithaca, etc , R. Co 269 Merrill v. Merrill 131 Merritt v. Baker 253 Merritt v. Merritt 395 Merritt v. Seaman 288 Merritt v. Thompson 513 Merritt V. Vigelius 71, 73 Merritt v. Village of Portchester 433 Mersereau v. Ryerss 547 Messenger v. Fourth Nat. Bank 306 Messenger v. Holmes 93 Mesick v. Smith 128 Metropolitan Life Ins. Co . v. McCoy 99 Metropolitan Nat. Bank v. Hale 257, 268, 269 Mettlestadt v. Ninth Ave. R. Co 314 Metzgar v. Carr 217 Meyer v. Fiegel " 301 Meyer v. Goedel 253 Meyer v. Lathrop 400 Meyer v. Lent 653 Meyer v. McLean 308 Meyer v. Suburban Home Co 310 Meyer Rubber Co. v. Lester Shoe Co 543, 549 Miaghan v. Hartford Fire Ins . Co . . .'. . 303 Michigan Carbon Works v. Schad 279 Middlebrook v. Broadbent 407 Milbank v. Jones 40 Milch V. Westchester Fire Ins. Co 286 Miles V. Sackett 258 Miller v. Ames 94 Miller v. Barber 254 Miller v. Colyer : 426 Ixxvi Table of Cases. r Page. Miller v. Hooker 71 Miller v. Holmes 302 Miller V Miller 31, 635 Millerv. Montgomery 263, 287, 291, 293, 294 MQler V. Palmer , 98 Miller V. Shall 31 Miller V. Sheldon 587, 668 Miller v. Stettiner 46 Miller V. Wilson 120 Millerd V, Thorn 248, 249, 337 Milligan v. Robinson 493 Milliken v. Western Uoion Tel. Co 213 Milliman v. Rochester R. Co 332 Mills V. Hoag 588 Mills V. Stewart.. 32 Mills V. Thursby 73 Mills V. Thursby 662 Miner v. Mayor, etc., of N. Y 333 Mingay v. Lackey 446 Minor v. GarrisoQ 94 Mitchel V, Borden 338 Mitchell V. Carter 339, 345 Mitchell V. Ehle 841 Mitchell V. Hall 555 Mitchell V. Mount 513 Mitchell V. Oliver 68 Mitchell V. Parks 347 Mitchell V. Rouse 311 Mitchell V. Stewart 73 Mitchell V. Village of White Plains _ 66 Mitchell V. Westervelt 586, 667 Mitchell's Case 141 M ifEatc V. Henderson 479- Muffattv.Ford 532 Moffatt V. Judd 133, 660 Motfatc V. Mount , 59, 68- Moissen v. Kloster 367 Mojarrieta v. Saenz 654 Monell V. Marshall 401 Mounett v, Marz 5-)^; Montgomery v. Ellis 39 Montrait v. Hulchins 634 Moody V. Pomeroy 339^ Mookowitz V. Hornberger 315 Mooney v. British Comm Life Ins. Co 633 Moore v. Cockroft 536^ 531 Moore v. Gadsden 309. Moore v. McKibben 304 Moore v. Merritt , 664 Table of Cases. Ixxvii Page. Moore V. Metropolitan Nat. Bank. 63 Moore V. N. Y. El. R. Go 483 Moore v. Sha\^ ........;. 474, 588 Moore V. Taylor 30, 43 Mooabrugger v. Kauffman 494 Moran v. Anderson 214 Morange v. Meigs ; 364 Morehouse v Yeager 333 Morgan v. Frees 278 Morgan v. FuUerton . . — 466 Morgan v. Skidmore 515 Morrell v. Kimball 124 Morrell v. Morrell 59, 121 Morris v. Crawford 197 Morris V. Knox 103 Morris V. Morange 588 Morris V. Wheeler 505,511,541 Morrison V. Agate 543, 519 Morrison v. Erie Ry, Co 314 Morrison v. Ide 530, 668 Morrison v. Horrocks , 69 Morrison v. Lawrence 396 ' Morrison v. N. Y. & N. H. R Co 315 Morrison v. Sturges 187 Morrison V. Van Bentheuysen 68 Morss T. Gleason 250 Morss V. Hasbrouck. 543 Morss V. Jacobs, . : 497 Morse v. Osborn 310 Moses V. C. P. N. &E. R. Co 341 Moses T. McDivitt , 28 Moses V. Walker 215 Mott V. Consumers' loe Co 193 Moulton v; Beecher , 90, 93, 94, 555 Mozav. Sun Mut. Ins. Co. 587 Mullen V. Christian 243 Mullen V. Guinn 513 MuUer v. Baj ard 481, 482 MuUer v. McKesson 318, 319 Muller V. Struppman 531 Mulqueen v. Duffy 288 Mumford v. Brown 455 Mundorflfv MundorfE 415, 417 Munson v. Curtis 475, 479 Murdoc V. Adams '. 573 Murray v. Kirkpatriok 165 Murphy v. AUerton 221 Murray V. N. Y. Life Ins. Co 348, 249,327, 338, 348 Murray v. Robinson 546 Ixxviii T/Lout ur GAtuUk Pago. Murray 7. Smith r. »„...^ iJ8T Murtha V. Oartey 488, 682, 821 Musoottv. RuDge „. ,-...,^.„.^ »*..188, 8B8, 688 Musgrnve v. Sherwood .«^., ..»^» .»^. 650 Mutual Life Ins. Co. v. Anthony. »..-»^ *... 486^ Mntuil Life Ins. C3o. v. Blgler 46 Mutual Life las. Co. v. Bowen 4B& Mutual Life lus. Co. v. Cromwell »-.. 878 Mutual Life Ins Co. v. O'Donnell 89, 65» Myers v. Polhemus 868 Myers v. Village of Lansingburg 96 Mygatt V. Wilcox 638 Mygatt V. Garrison 164 N Nason v. Luddington 361, 862 Nassau Back v. National Bank 399 Nathan v. Whitehlll 188 Nat. Bank of Syracuse v. McKinstry 583 Nat. Bank of Troy v. Scrlven 284 Naugatuck Cutlery Co. v. Rowe 533, 534 Navratil v. Bohm 99 Naylor V. Colville ,, ... eOft Neftelv. Lightstone 312 NeUv.Abel 339 NeUv. Thorn 253, 254, 255, 260. 261, 292, 307 NeUlv. Wuest 656 Nelson V. Ingersoll 384,401 Nelson V. Sun Mut, Ins. Co 264 Nesmith v. Atlantic Ina. Co 133 Nesmith V. Clinton Fire Ins. Co Ml Neudecker v. Kohlberg Sll New y. Anthony „. 490 Newall V. Bartlett 337' Newberg V. Garland ...».., 215 Newbury v. Newbury 644 Newcomb V. Johnson 232, 277, 281 Newell V. Doty 407 Newell Universal Mill Co. v. Muxlow 485, 495 Newell V. Wheeler 507 New Engird I. Co. V. N. Y. L. & I. Co 187, 188 New York Cent. Ins. Co. v. Kelsey 197 New York El. E. Co. v. Harold 545, 548 New York Firemen's Ins. Co. v. Walden 331 New-York F. & M. Ins. Co. v. Burrell 110, 547 New York & Harlem R. Co. v. Mayor 662 Newins v. Baird 465, 599 New Jersey Line Co. v. Blood 93, 97 N. Y. , L. E. & W. Ry. Co, v. Carhart 546 Table of Cases. Ixxix Page. Newlin v. Lyon 407 Newman v. Board of Supervisors 217 Newman v. Goddard 295- Newman v. GriefE 531 Newman V. Marvin 293, SBS' Newman v. Newman 191 Newman v. Otto 50, 51 Newman v. Supervisors of Livingston 61 New York &N. H. R. Co. v. Schuyler 493 Newstadt v. Adams 301 Newton v. Harris 279, 258 Newton v. Milleville Mfg. Co 29& Newton v. Porter 180, 181 New York El. R. Co. v McDaniel 510' New York Life & T. Co. v. Cuthbert 55 New York & N. J. Ice Lines v. Howell 339 New York Press Club v. Loyd 157 New York State Monitor Milk Pan Assn. v. Remington Agri. Works 298 Niblo v Binese 547 Nichols V. Goldsmiih 380 Nichols V. White 267 Nickerson v. Ruger 293 Niebuhr v. Schreyer 414, 417, 418 Nies V. Broadhead 270 Niles V. Crocker 514, 51ft Niles V. Lindsley 484 Niles V. Maynard 397 Niver v. Rossman 555 Nixen v. Haslett 226 Nixon V. Palmer 273 Noble V. Cromwell 419 Nolton V. Moses 255, 287, 331, 333 Noonan-v. N. Y., L E & W. R Cj 663 Norbury v. Seeley 55 Northrup V. People 11 Northrup v. Van Dusen 651, 666, 667 Norton v. Fancher 480 Noye Mfg. Co. v. Raymond 227 Noye Mfg. Co. v. Whitmore. 97 Nosser v. Corwin 304 Noxon V. Bentley 229 NuendorfE v World Mat. Life Inp. Co 309 Nuttv. Cuming 435, 470, 588 I O Oakley v. Aspinwall 18 Oakley v. Sears 293 Oberlander v. Spiess 400 O'Brien V. Bowes 373 Ixxx Table of Cases. Page. ' O'Brien v. Buffalo Traction Co 399, 401 O'Brien v. Commercial Fire Ins. Co 531 O'Brien v. Merch Fire Ins. Co 338 O'Brien v. McCarthy 64 O'Connor v. Merchants Bank 530 O'Dea V. O'Dea 476 bdell V. McGrath 252 Oderkirk v. Fargo 278 Dougherty v. Remington Paper Co 429, 460 Oechs V. Cook 50 Oesterreiches V. Jones 223 Oebberman v. Rosenbaum 532 Ogden V. Payne 225, 227 Ogdensburgh, etc , R. Co. v. Vermont, etc., R. Co 552 O'Gradyv. OGrady 419 O'Hagan v. Dillon 257, 294 O'Hara V. Brophy 505, 525 O'Keefe v. Shepherd 479 Olcott V. Maclean 511, 568 Olcott V. Robinson 423 Oldfieldv. N. T. &H. R. Co 337 Older V. Russell 469 Olendorf v. Coak 300 O'Leary v. Brown 214 Olif ers v. Belmont 492 Olmstead V. Jones ,, 97 01 rastead V. Lewis 131 ONeil V. D. D., E. B. & B. R. Co 333 O'Neilv.Gray 553 O'Neil V. Ho we 397 O'Neill V. James 318 Onondaga Bank t. Shepherd 89 Oppenheimer v. Walker , 408 Opper V. Caillon 250 O'Reilly v. City of Kingston 68 O'Reilly v. Davis 492 O'Reilly, etc., Co. v. Greene 216 Oregon S. S. Co. v. Otis 303 Ormes v. Dauchy .' .318, 319, 322 Ormsbj- v. Babcock 535 O'Bourke v. Yonkers R. Co 246 Osborn V. Betts 361, 554 Osgood V. Whittelsey 220 Osterhoudt v. Board of Supervisors 370 Ostrander v. Conkey 196, 198 Ostrander v. Hart 55, 608 Ostraader V. Weber 64 O'Sullivau V. Roberts 295 Ollendorff V. Willis 253 Overheiser v. Morehouse 515 Table of Cases. Ixxxi Page. Owen V. Cawley 39 Owens V. Hudson River E. Co , ... 333 Packard y. Stepbani 82 Page V. Methfeasel 367 Page V. WiUet 50 Paine v. Aldrich 239 Painton v. Northern Cent. Ry. Co 315 Palmer V. Davis 316 Palmer v. De Witt 650 Palmer v. Great Western Ins. Co 802 Palmer v. Haight 276 Palmer v. Palmer 357, 414, 417, 615 Palmer v. People 267 Palmer v. Phoenix Ins. Co 48 Panama R. Co. v. Johnson 336 Pardee V. Schanck 530 Pardee V. Schenk 529 Park V. Carnley 90 Parker v. Baxter .- 385, 400 Parker v. City of Williamsburgh 36 Parker v. Harrison 621 Parker V. Laney 505 Parker v. Linden 609 Parker v. Rensselaer, etc., R. Co 304, 305 Parker v. Snell 71 Parks V. Andrews 122 Parmenter V. Boston, etc., Ry. Co 274 Parmeoter v. Roth 649 Parrish V. Sun Pub. Co 249 Parrott V. Sawyer 555 Parsons V. Suy dam 282 Partridge V. Norton 825 Patchin v. Astor Mut. Ins. Co 875 Patchin v. Sands 133, 137 Patten v. Hazewell 234 Patterson v. Enapp 896 Patterson v. Graves 884 885 Patterson v. Patterson 304 Patterson v. Stettaner 69, 129 Pattisonv. Bacon 682, 663 Pattison V. Hull 508 Paulv. ParshaU 61, 120 Payn v. Grant 468, 469 Payne v. Eureka El. Co 98 Payne v. Hodge 264, 267 Payne v. Troy & Boston R. Co 314 Payne v. Young , . 638 Ixxxii Table of Cases. Page. Peabody V, Oortada ^ '''* Peabody v, Washington Co. Mut. Ins. Co 216 Peakev. BeU 310 Peokv.Coler 634 Peokv. Lake 269 Peckv. New York & N. J. By. Co 592 Peck V. Parker 98 Peck V. Richmond 261 Peck V. Valentine 267, 268, 269 Peck V. Yorks 368, 519 Peet V. Billings 97 Peet V. Co wenhoven 659 Peet V. Warth 558 Pegramv. Carson 18'* Pendergast v. Greenfield 59 Pendleton v. Empire Stone Dressing Co 276 Penfieldv. James 545, 547 Penniman v. Fuller & Warren Co 89 Pennell v. Wilson 505^ Penny v. Rochester R. Co 259 Pensa V. Pensa 31 People V. Abbott 281 People V. Adams 537, 550 People V. Albany Com. Pleas.. 496, 497 People V. Albany & Vermont B. Co 369 People V. Albany & Susquehanna B. B. Co 58, 63, 550, 389 People Y. Alden 525 People V. Assessors 667 People V. Augsbury 265, 266 People V. Beach 263 People V. Bergen 664, 665 People V. Board of Aldermen 4 People V. Board of Police 309, 321 People V. Bodine 240, 241, 242 People V. B ,oth 217 People \. Bowe 657 People V. Bradwell 12 People V. Brooks 279, 2g0 People V. Brundage 16 I'eople V. Buchai an 262, 263 People V. Buddensitck 270, 290 People V. Cady 639 People V. Carr 16 People V. Casey 259, 284 People V. Central City Bank 659 People V. Chacon 293 People V. Christie 245 People V. Colborne 537, 538 People V. Cole 262, 283, 297 Table of Cases. Ixxxiii Page. People V. Columbia Com. Pleas 345 People \. Commissioners 630 People V. Common Council 664 People V. Connor 18 People V. Cook 320, 321 People V. Cooper 665 People V. Damon 246 People V. Davis 281, 284 People V. De Camp 638 People V. Dillon 136 People V. Donovan 10 People V. Dorthy 259 People V. Duchess &C. R. Co. . 348 People V. Dyokman 141 People V. Ellis 807 People V. Evans 275 People V. Feeter 494 People V. Fish 270 People V. Fitchburg R. Co 544 People V. Fuller 245 Peoplev.Gay 284 People V. Genesee Valley R. Co 552, 556 People V. Giroux 550 People V. Harper 295 People V. Haynes 28i People V. Hays 95 People V. Holbrook 184 People V. Hulse 284 People V. Kelly 655 People V. Kelsey 330 People V. Kingsley 90, 91, 93 People V. Kinney 204 People V. Lake 385 People V. Livingston 336 People V. Long Island R, R. Co 93, 94 People V. Mallon 241,244,245 People V. Mann 16 People V. Marks 307 People V. Mather , 241, 240 People V. McGuire , 133, 288 People V. Moore 261, 278, 288 People V. Nat. Trust Co 662, 665 People V, N. Y. Cent. R. Co 554, 558 People V. N, V. Cent. & H. R. R, Co 652 People V. N. Y. & S. I. Ferry Co 551 People V. Nichols 48, 630 People V. Northern R. R. Co 84, 630 People V. Olcott 307 People V. Oyer & Terminer 256, 261 Ixxxiv Table of Cases. ' Page. People V. Pariah 295 People V. Rathbun 242 People V. Rector ^0, 284 People V. Rensselaer Com. Pleas 641 People V. Rocka way Beach Improvement Co 552 People V. Rosendale 525 People T. SafEord 282 People V. SheriflE of N. Y 141 People V. Smiler 365 Peoplev. Spiegel 295 People V. Stephens , 39 Peoplev. Sturtevant 661 People V, Sullivan 13 People V. Superior Court of N. Y 47 People V. Supervisors 4 People V. Supervisors of Niagara Co 538 Peeple v. Sutherland 639, 640 Peoplev. Taylor 252, 277 People V. Trustees 1 People V. Van Houten 284 People V. Vermilyea 225, 226, 227, 228, 229, 240 People V. Vilas 320 People V, Ware 275 People V. Wayman 833 People V. Webb 93 Penfield v. White 666 Peoplev. Wood 69 People V. Wright 93, 97 People V. Youngs 6 People's Bank V. Mitchell 592 Percy v. Seward 102 Peri V. N. Y. Cent. R. R. Co 33, 34 Ferine v. Hotchkiss 401 Perkins V. Hinman 82, 83 Perkins v . Mead 634 Perkins v. Taylor 394 Perrigo v . Do wdall 520 Perrow v. Lindsay 191 Perry v. Livingston 493, 530, 535 Peyser v. Wendt 365, 370 Pettee V. Pettee 864 Pettibone v. Moore 213 Petrie V. Williams 242 Pfandler Co. v. Sargent 574 Pfefle V. Second Ave. R. Co 333 Pfister v. Stumm 115 Phelps V. Piatt 187 Phelps V. Viacher 400 Phelps V. Wasson. 667 Table of Cases. Ixxxv Page. Phelps V. Wood 480, 510 Phila. & Trenton R. Co. v. Stimpson 260 Philbin v. Patrick 267 Phillip V. Gallant 400 Phillips V. Mason 322 Phillips V. Melville 6 13 Phillips V. Metrop. El. Ry. Co 289 Phillips V.N. Y. O. &C. R. Co 336 PhiUips V. Rensselaer & S. R. Co 314 Philips V. Buy dam 198 Phillips V. Wheeler 646, 647 Phinney v. Broschell 654 Phipps V. Carman 88, 396 Phipps V. Van Cott 490 Phoenix v. Dupuy 153 Picard v. Lang _ 311 Pickard V. Pickard 30 Pickert V. Windecker 492 Pickard V. Collins 278 Pierce V. Brown 493 Pierce v. Pierce 343 Pierce v. Waters 37, 38 Pierrepont v. Lovelass 565 Pierson v. Freeman 640 Pierson V. McCnrdy 214 Pikev.Nash 559, 586 Pinckney v. Childs 114 Pinder v. StoothaflE 546 Piper V. N. Y. C. &H. R R. Co 337 Pitt V. Davison 664, 665 Place V. Butternuts, etc., Mfg. Co 49, 53, 534 Placev. Chesebrongh 70, 129 Place V. Hay ward 363 Place V. Minster 801, 304 Plainer v. Lehman 498 Platner v. PJatner 254, 263, 286, 294, 296, 333 Plato V.Kelly 261 Plato V. Reynolds 275 Plumb V. Whipples 196 Plunkett V. Appleton 339 Piyer V. German Am. Ins. Co 276 Pohalski v. Ertheiler 257 Poillon V Cudlipp 546 Pollak V. Gregory 586 PoUockv. Pollock 283, 385 Pomeroy V. HuUn 115, 532 Pond V Hudson R. R. Co 92 Pontius V. People 291, 294, 296 Poole V. Belcha 34, 35 Ixxxvi Table of Cases. Page. Poole V. Kermit 326 Pool V. Safford 658 Pope V. Perault 413 Porous Plaster Co . v. Seabury 214 Porter v. Havens 381 Porter v. Mount S38 Porter V. Schepler 326 Post V. Jenkins 667 Post V. New York Cent. R. Co 114 Post T. Wright 226 Potter V. Carpenter , 563 Potter V. Davison 232, 233 Potter v. Farrington 551 Potter V. Thompson 801 Poucher v. Livingston 133, 137 Powell V. Jones 331 Powell V. Rust 483 Powell V. Sonnett 307 Powell V. Waldron 59, 61 Power V. Village of Athens 543, 6:S7 Po wers V. Conroy 481 Powers V. Wolcott 518, 549 Pratt V. Allen 53, 490 Pratt V. Bray 662 Pratt V, Hull 308 Pratt V, N.Y. C.&H.R. R. Co 283 Pratt V. Ogden 334 Pratt V. Pratt 66, 67 Pratt V. Ramsdell 110, 505 Pratt V. Stiles 417, 480, 505 Predigested Food Co. v. Scott 174, 175 Premo v. Smith 85 Preston v. Morrow ."7T 66 Price V. Brown .315, 366 Price V. Ft. Edwards W. Co 95 Price V. Levy 406 Priebe v. Kellogg Bridge Co 334 Pringle v. Huae 240, 245 Proctor V. Soulier 543, 687 Produce Bank of N. Y. v. Morton 416 Provost V. Farrell 224, 536, 539, 563 Provost V. Provost , 505 Pugsley V. Van Allen 330, 657 Pulvar V. Hiserodt 225, 226, 227 Pumpelly V. Village of Owego 608 Purchase v. Jackson 667 Purchase v. Matteson 335, 336 Purchase v. N. Y. Exch. Bank 326 Purdy V. Taller 870 Table of Cases. Ixxxvii Page Putnam v. Ritchie , 455 Putnam v. Van Buren 35 Putney v. Tyng 624 Putzel T. Schulhoflf 391 Q Quackenbush v. Johnson 396, 398 Quin V. Bowe 496 Quinnv. Lloyd 32, 51, 136, 293, 294 Qulnn V. Winter 481 Quereau V. Brown 221 Quinn v. Van Pelt 79, 80, 94 Quincey v. Young 384 Quinlan v. City of Utica 353, 502 Quinlan v. Welsh 317 Quinby v. Claflin 494 Quinby v. Strauss 288 B Raabe v. Squier 86:^ Race V. Gilbert 575 Railway Age v. Pryibil 150 Ramsdell v. Nat. R. & N. Co 331 Randall v. Kingsland 71 RaudaU V. Randall 122, 375 Randall v. Sherman 68, 72 Randall v. Van Wagenen 85 Rdudall V. Von EUert 472 Randolph v Foster 541 Ranney v. Russell 114 Ransom v. Wetmore 304 Rapelye v. Prince 807 Rapid Safety Filter Co. v. Wyckoflf 485 Rathbone V. Harman 99 Rathbonev. McConnell 481, 482, 484 Rathbun v. IngereoU 164, 165, 166 Rathbun v. Ross 281, 283 Rauth V. Davenport 515 Raux V. Brand , 267 Ray V. Connor 663 Ray V. Harley 36 Ray V. Oliver 424 Raymond v. Traffam 51 Raymond v. Redfield 508 Raymond v. Richmond 335 Raynor v. Hoagland 318 Ray nor v. Raynor , 588 ^ Bead v, French 31 ; Ixxxviii Table of Cases. Page. Readv. Lozier 68, 7S Eead v. Nichols 337 Read v. Waterhouse 518, 51& Real V. People 259, 282 Reed V. Batten 494 Reed v. MoConneil 304, 305. 311 Reed V. N. Y. C R. Co 285 Reeder v. Sayer 302, 317 Regan v. Priest 232 Regan v. Traube . . ■ . 04& Regina v. Vodden 34.j Reich V. Mayor 82'J Reichmana v. Manhattan Co 146- Reilly v. Lee 494 Remsen v. Isaacs 630 Rensselaer & S. R. Co. v. Bavis 543 Requa v. City of Rochester uld 545. Robbing v. Mount 383, 384 Robinson v. Brennan 36 Robinson v. Govers 660- Robinson v. Hall 223. Robinson v. Marcbant 50 Robinson v. Merritt 94 Robitzekv. Hecht 559, 570 Roby V. Hallock 61 Rochester Bar Ass'n V. Dorthy 29^ Rochester v. Mayor, etc., of N. Y 129 Rochester City Bank v, Rapelye 53 Rochester Lantern Co. v. Stiles & Parker Press Co 400- Rochester Ry. Co. v. Robinson 214 Rochester, etc., R. Co. v. City of Rochester 551 Rocke V. Meiner 261 Rockwell V. Brown 276- Roe V. Roe 408^ Boeder v. Ormaby 215 Rogan V. MuUins 34=) Rogers v. Arthur 306. Rogers V. Beard 384 Rogers v. Garrison 236 Rogers v. I vers 435 Rogers V. N.Y, &T.L. Co 59& ^c Table of Cases. Page. Bogera v. Pf arsnll ^ ....i„.....iit 838 Rogers v. Boi^ara ,>.....•.....>.>...>...> . . . > . i . . . . ■ • > > . . > < . . 868 Rsgars v. Tools > ..> ..w , >• >•; .. 651 liogers V. Van Boeien t .,, i w 183 Rogers v. Wiag 440 Roldan y. Power .. al7 Romaine y. Bowdoln 196, 198 Rome Ei. Bank y. Eameg , ■ 593 Rome, etc., R. Co. y. City of Rochester 640 Romertzey. East River Nat. Bank 263, 373, 377 Romeyn V. King 98 Romeyo y. Sickles 593 Roosa y. Saugerties, etc., Co 403 Boosa V. Smith 409 Rooseyelt y. Dean 651, 659 Eooseyelt Hospital y. N. Y. EI. R. Co 270 Root V. Brown 276 Root V. Sherwood 843, 346 Rossie Iron Works V. Westbrook 93 Rosa y. Jenkins 510, 511, 553, 568 Rosenberg y. Solomon 372 Roslyn Hights Land Co. v. Burrowes 60 Ross y. Beeober, 128 Ross y. Bridge 114 Rossy. Campbell 288, 389 Rossy. Colby 310 Ross y. Combes 70 Ross y. Mather 311 Ross V. Mayor of N.Y, 69 Ross y. Ross 388, 601 Rossv. Terry 313 Ross y. Wigg 643 Rossner y. N. T. Museum Asao 189, 193 Roth y. Meads 560 Kothery v N. Y. Rubber Co 551, 565 Ronkfndorflf V. Taylor 423 Rouse V. Lewis 334 Rouse V. Whited 263 Row y. Sherwood 531 Rowe y. Comley 329 Rowe y. S teyens 310 Rowell V. Janurin 247 Roy y. Targee 29U Royce y. Jones 492 Boycev, Watrous 323, 338 IJuckman v. Ruckman 615 Ruddy. Davis 309, 315 Ruloff y. People 333 Rugen y. Collins 493 Table of Cases. xci Page, Haggles V. Fogg 117 KuDdle V. Allison 507, 508 -Rushman V. Hall 334 Russell V. Burton 403 Russell V. Hudson Ri ver R. Co 367 Russell V. Meacham 106 Russell V. St. Nicholas Fire Ins. Co 283 Rust V. Eckler 180 Rustv. Hauselt ...38, 224, 526, 558 Hutherford V. Soop 66 Rutty V. Person 119,130 Ryall V. Kennedy 310 Ryan v. Atlantic Mut. Ins. Co 189 Ryan v. Mayor 39 Ttyan v. McElroy 515 Ryan v. People 359 Hyan v. Porter 329 Ryerson v. Ryerson 388 Sabater v. Sabater 511 Sabin v. Johnson 330, 657 Sackett v. Ball 549 Sackettv. Spencer 268, 331, 326 SaUly V. Hutton 97 Safety Steam G. Oo. v. Dickson Mfg. Co 545 Safford v. Stevens 308 Sage V. Culver , 313, 214 Sage V. Mosher 195, 364 Salisbury v. Scott 139 Salter v. Utica & Black River R. Co , 563 Saltus V. Genin 304 ' Sanchez v. People 383 Sands v. Kimbark 59 Sanford v. Accident Asso'n 64 Sandford V. Chase 82 Sanford v. EUithorp 288 Sand V. Church ,531 Sanders v. Soutter 213, 214 Sanderson V. Bowen 838 Sands v. Sands 549 Sands V. St. John 50 Saratoga* W. R. Co. v. McCoy 338, 553, 554 Sargeant v. — 345 Sargent v. State 343 Saundersv. Goldthrite 498 Savage V. Allen 546 Savage v. City of Buffalo 213 I §ev.Relyea 132, 657, 659, 661, 664 xcu Table of Cases. Pag«. Savage v. Sherman 476- Sayles v. Sims 335 Schadle v. Chase 668 Schalk V. Norris 29 1 Schankv. Conover - 48 Schappner v. Second Ave. R. Co 338, 339 Schaser v. State 383 ScheU V. Plumb 275, 277 Schenectady & Saratoga Plank Road Co. v. Thatcher 315 Schepmoes v. Bousson 153^ Schermerhorn v, Schermerhorn 630 Schemerhorn v. Wood 73 Scheu v. Lehning 444 Schierloh v. Schlerloh 575 Schile V. Brokhaus 3S3. Schmitt V. Metro. Life Ins. Co 279 Schnaderbeck v. Worth 50- Schnaier v. Nathan 305 Schroeter v. Schroeter 388, 601 Schultheis v. Mclnerny 399, 656 Sohult v. Third Ave. R. R. Co 258, 278, 279, 280, 807 Schultz V. Whitney 571 Schultze V. RoJenwald 663, 663 Schuyler v. Smith. 363 S jhuyler v. Thompson 246 Schwartz v. Poughkeepsie Mut. Pire Ins. Co 668 Schwerin v. McKje 334- Sohwinger V. Raymond 401 Scodeld V. WTiitelegge ,. 247 Scott V. Guernsey 456- Scott V. Mayor, etc.. of N.T , 247 ■ Scott V. Metrop. El. Ry. Co 289 Scott V. Williams 413 Scott V. TeandJe 310 Scudder v. Gori 585 Scudder V. Snow 126. 132, 655, 659 Seaman v. McReynolds 663 Seaver v. Hodgkin 215 Second Nat Bank of Utica v. Wells 218 Security Fire Ins. Co. v. Martin 43^ Seeley v. Chittenden 630 Seeley v. Clark 146 Seeley v. Engell 287 Seeman v. Keishe 654 Seifert V. Schillner . 199 Selden v. Christophers 665- Selover V. Wiener „ 534 Seneca Nation of Indians v. Hawley 224, 526- Bentenia v Ladew 556- Table of Cases. xciii 8ermont v. Baetjer 384, 401 Sewaxd y. Jackson 848 Sewell V. Butler , 157 Seymour v. Ashenden 52a Seymour v. Fellows 265 Seymour v. MoKinsfxy 120 Seymour v. Spring Forest Cem. Ass'n 417 Seymour's Executors v. Strong 161 Shafler V. Martin 383, 386, 391 Shannon v. Brower..; 532, 533 Sbajpe V. Freeman 367 Sharp V. Hutchinson 146 Sharp V, Mayor, etc.. of N. T 71 Shaw V. Ayrea' 129 ShawT. Cock . 298 Shaw V. Smith 388 Shea V. Cornish , 400 Sheahan v. Shanahan 312 Shear v. Vau Dyke - 267 Shearman v. Hart 652 Shearman v. Henderson „... 311 Sheehan v. Carvalho 157, 662 Sheely v. Cannon 310 Sheflaeldv. Rochester & Syracuse B. Co 261 Sheldon V. Atlantic F. & M. Ins. Co 819 Sheldon V. Hudson River E. Co 309 Sheldon V. Wood ...180, 407 Shelp V. Morrison 140 Shepard V. Potter 353 Sbepard v. Squire .- 91 Sherburne V. Taft 545 Sheridan v. Jackson...... .........^x. .. 247 Sheridan v. Linden 625 Sheridan v. Long Island E. Co 335 Sherman v. Adirondack R. Co „ 97 Sherman V. Gregory 89, 90, 91 Sherman v. Hudson River E. Co 385 Sherman v. Parish _. 299, 371 Sherman V. Postley 627 Sherman V. Scott ...^ 287 Sherman v. Wells. .^, 627 Sherry V. Gary , ^ 488 Sheufield v. Bernheimer 63 Sherwood v. Mercantile Ins, Co 321 Shirley v. Vail . . ..„.^.. ...... ....... ...... ....^. 331 ShotweU V. Mali ^ ~ 317 Shufflin V. People _-.»..^...^ 257 ■Bhuler V. Maxwell «..^..... „ 81 xciv Table of Cases. Page. Shultea v. Sickles 322' Shults V. Andrews 132 Shultz V. Rodewald 61 8ibell V. Remsen 517 Sibley v. Nichols 562 Sickles V. Richardson 5 3 Sidenberg v. Eiy 384 Slefert v. Caverly lf)7 Sietke v. Siefke 19'> Silliman v. Clark 197 Silliman V. Eddy 668 Silmser v. Redfield 70 Silverman v. Foreman 252 Simar v Canaday 316 Simmons v. Craig 640, 650 Simmons v. Fairchild 217 Simmons v. Hazard 147, 150, 151 Simon v. O'Brien 479 Simonson v. Blake , 591 Simpson v. Watrus 292 Sims V. Sims 285 Simson v. Satterlee 220 Sinclairv Neill 288 Sinclair v. Stephenson 269 Sinclair v. Talmage 403 Sindram v. People 331 Singleton v. Home Ins. Co 113, 117 Sinnit V, Cambridge Valley, etc., Ass'n 96 Sipperly v. Warner 535 Sitterly v. Gregg 275 Sixth Ave. R. Co. v. Gilbert El. R Co 638 Sixth Ave. R. Co. v. Metrop. El. Ry. Co 256, 266 Sizer v. Burt 255 Skinner v. Hannein 46, 47 akinner v. Steel 151, 153, 157, 663 Skinner v. White 526 Slack V. Brown 498 Slater v. Mead 343 Slater Bank v. Sturdy 493 Slater v. Wilcox 264 Slauson v. Watkios 520 Slavin v. Germain 39 Sleeper v. Van Middleworth 381 Sloan V. N. Y. Cent. R. Co 276 Slocum V. Barry 517, 518 Sluyter v. Smith 602 Small V. Ludlow 58 Smedis v. Brooklyn, etc., R. Co 313, 837 Table of Cases. xcs^ Page. Smith V. Averill 98 Smith V. Ayleaworth 208 Smith V. Bowers 499 Smith V. Brown 71, 'i'i'i Smith V. Cheetham 630 Smith V. Coe 384, 655 Smith y. Cooper 538 Smith V. Crocker 274 Smith V. Danzig. 48 Smith V. Davis 639 Smith V. Dodd 658 Smith V Evans 638 S mith V. Fleischman BO Smith T. Gray 68 L Smith V. Griffith 297 Smith V. Hilton 55 Smith V. Keepers 205 Smith V. Kerr 115 Smith V. Mack 96 Smith V. Macdonald 141 Smith V. Mulford 259 Smith V. N. Y. Ins. Co 225 Smith V. Patter 513 Smith V. Pelott 363 Smith V. Randall 353, 515 Smith V. Rathbun 2iL>, 303, 366 Smith V. Rowley 385 Smith V. Sergent 249, 327 Smith V. Servis 531 Smith V. Shaw 198 Smith V. Stephens 319- Smith V. Siickney 285 Smith V Smith 804, 369, 538 Smith V. Spaulding 654, 665 Smith V, Stagg 304 Smith V. Thomas 50 Smith V. Zalinski 663 SaeU V. Saell 337 Saell V. Loucks 121, 375 Snelling v. Yetter 319, 320 Snow V. Fourth Nat. Bank of N. Y 220 Snyder v. Snyder 515 Sonneborn v. Libbey - 656 Sorley v. Brewer 84 Sotow V. Risenberger 639 Sonle V. Chase 640 Southwiok V. First Nat. Bank 304, 305, 311, 593 Sparrman v. Keim 521 Spaulding v. Strong : 407 xcvi Table of Cases. Page. Sprague v. Butterworth ^^^...^ 153 Spear v. Myers ^ 282 Spear v. Myers 855, 261 Speis V. Michelson .., 247 Spence v. Simis 68, 72, 128 Spencer v. Sampson 134 Spero V. West Side Bank 148, 150 Sperry v. Miller 331 Spring V. Day 533, 562 Springsteed v. Lawson 334 Springsteene v. Gillett. . , 474, 588 Spofford V. Texas Land Co 550, 551 Sprague v. Cadwell 276 Sprong V. Snyder 541, 555 Squires v. Seward 481, 484 Squires v. Abbott 268 St. Clair Paper Mfg. Co. v. Brown 150 St. John V. Skinner 310 Stacom V. Moon 92 Stackus V. N. Y. C. & H. R. R. Co 314 Stacy V. Graham 277 StaflEord V. Merrill 347 Stafford Pavement Co. v. Monheimer 50 Staiger V. Sohultz 505,506 -Stalker v. Gaunt 188 Stanton v. Town of Taylor 503 Stanton v. U. S. Pipe Line Co 642 Stape V. People 284 Staples V. Fairchild 638, 639 Staples V, Parker 89 Star Fire Ins. Co. v. Godet 658 Starbuck v. Farmers' L. & T. Co 216 Starks v. People 258, 379, 280 Starkweather v. Carswell 233 Starkweather v. Quigley 309, 312 Starr v. Cragin 279 State V. Banner 257 State V. Benton 242 State V. Engle 343 Steam Navigation Co. v. West 666 Steams v. Field 265, 266, 315 Stebbins v. Brown 130, 402 Stebbins v. Cowles 72 Steck V. Colorado P. & L Co 58. 60, 69, 70 Stedman v. Batchelor 246 Steele T. McDonald 488 Steele v. Palmer 653 Steeve v. Childi 468 Steinam v. Slrausa 610 Table of Cases. xcvii Page. Steiner V. Ainsworth, 530 Steinlev. Bell 423 Stephens v. Hall 55 Stephens v. People 293 Stephens v. Strong 864 Sterne V. Metrop. Tel. Co 150 Sternberger v. Bernheimer 590 Sternberger v. McGovern 60 Sierrett V. Third Nat. Bank 317 Steuben County Bank V. Alberger 639, 653 Stevens V. Brenoan 288 Stevens v. Fisher 331 Stevens v. Mayor, etc., of N. Y 592 Stevens V. N. Y. El. R. Co 562 Stevens v. Rogers 281 Stevens v. Strong , 195 Stevens V. Veriane 110 Stevenson v. Buxton 60 Steves V. Oswego & I. R. Co 309 Stewart V. Berge 657 Stewart v. Brown >», 639 Stewart v. Fidelity Loan Ass'n 315 Stewart v. Metropolitan Board of Health 537, 538 Stewart v. Slater 391 St. Felix V. Rankin 456 Stiohterv. Tillinghast 186 Stiles V. Fisher 667 Stilwell V. Archer 249 Stilwell V. Staples 488 Stillwellv. Stillwell 118 StinerviUe & B. Stone Co. v. White 32 Stitt V. Rowley 534 Stoddardv. Clarke „. 475 Stoddard V. Whiting « 400 Stokes V. People 275 Stone V. Duffy 558 Stone V. Flower 332, 323 Stone V. Western Transp. Co 337 Stone V. Weiller 63 Story V. Brown - 418 Story V. Patten .— 184 Stouter V. Manhattan Ry. Co 288 Strauss V. Trotter ^.. 51 S treat V. Rothschild 68, B9 Strittmacher v. Salina, etc., Plankroad Co 403 Strong V. Blake Ill Strong V. Hardenburgh 407 Strong V. N Y. Laundry Mfg. Co 323 Strong V. Plainer . . . ; 644 xcviii Table of Cases. Page. Strong V. Strong 120 Struthers v. Pearce 551 Stryker V. Tumbull 137 Stuartv. Simpson 308, 309 Studwellv. Baxter 531 Sturgis V. Spofford 499 Sturm V. Atlantic Mut. Ins. Co 159, 180, 267, 273, 297 Sturtevant v. Fairman 657 Stuyvesant v. Browning 463 Stuyvesaut V. Hall 468 Suit V. Bonnell 258 Sullivan V. McManus 335 Sullivanv SuUivan 131, 388 Sun Ass'n v. Tribune Asa'n 338 Superrisors of Onondaga v. Briggs 475, 479 Supervisors of Saratoga v. Seabury 216 Sussdorf V. Schmitt 301, 302 Sutherland v. Tyler , 221 Sutliff V. Gilbert 343, 344 Sutphenv. Lash 224, 526, 532 Suydam V. Grand St. & N. E. Co 321 Swain v. Pettingill 147 Swan V. Mut. Res. Fund Life Ass'n 213, 216 Swart V. Boughton 215 Swartout V. N.T. C. & H. R. R. Co 264 Sweeney v. Sturgis 151, 152 Swift V. Mayer 148 Swift v. Wells 71 S winburu v. Scockwell 51 S witzer v. Norton 323 Sylvester v. Wheeler 309 T Taaks V. Schmidt 537, 560, 570, 571 Tabor v. Van Tassell 295 Talcott V. Burnstine 662 Tallmadge v. Lounsbury 397 Taltnage v. Huntting 825 Talmage V. Third Nat. Bank 92 Tallman v. Bigelow 640 Tallman v. Bernhard 223 Tdlman v. Syracuse, etc., R. Co 543 Tammien v. Clause 653 Tanner v. Niles 533 Tator V. Adams 435 Taylor V. Attrill 91 Taylor v. Baldwin 455 Taylor v. Betsf ord 339 Taylor T.B.E. R. R. Co Ill, 112, 493 Table of Cases. xcix Page. Taylor t. City of Cohoes 352, 503 Taylor V. Derrick 474 Taylor y. Ketsham 333, 836, 337 Taylor v. Root 505 Taylor v. Vandervoort 83 Taylor V. Wrigbt 497 Tebo T. Baker 156 Tell V. Beyer 50 Tenney v. Berger 30 Ten Broeck v. Reynolds 83 Ten Broeck v. Travelers' Ins .Co 325 Ten Eyck v. Holmes 508 Terry v. Bonesteel 319 Terry V. Home 320 Terry v. Jewett 314 Teerpenning T. Corn. Exch. Ins. Co 264 TerwUliger t. Ontario C. & S. R. Co 303 Thanle v. Frost 83 Thayer V. Holland 478 Thayer v. Marsh 317 Thayer V. McNaughton fiS The King v. D'Eon 226 The Queen's Case 277 Therarson v. Peterson 303 Thierry v. Crawford 31 Thiesselin v. Rossett 396 Third Ave. R. Co. v. Ebling 390 Third Nat. Bank v. Shields 63 Thiem v. Madden 493 Thomas V. Croswell 134 Thomas v. Chapman 345 Thomas V. Dickinson 341,640 Thomas v. People 343 Thomasv. Reab : .70, 71 Thomas Roberts Stevenson Co. v. Tucker 295 Thomas V. Smith 247 Thompson v. Blanchard 283 Thompson v. Burchell 83 Thompson v. Burhans 638 Thompson V Erie R. R. Co 61, 187, 638, 665 Thompson v. Finn 335 Thompson v. Halbert 217 Thompson v. Kessel 298 Thompson v. Lumley 50, 233, 309 Thompson v. Manhattan El. R. Co 391 Thompson v. N. Y. El. H. Co. 370 Thompson v. Rumsey 1 34 Thompson v. Stanley 319, 529 Thompson v. Shepherd 103 c Table of Cases. Page. Thompson v. St Nicholas Nat. Bank 555 Thompson v. Simpson 323 Thompson v. Whitmarsh » 513 Thompson v. Thornton 396 Thorp V. Eiley - 840 Thousand Island Park Ass'n v. Gridley 659 Thurber V. Chambers 379, 380, 381, 637 Thurberv. Harlem Bridge, etc., R. Co 313, 314 ThurfzeU V. Witherbee , 96 Thurman v. Mosher 267 Thurston v. Marsh 110 Thwing V. Th wing 424 Tibbetts v. Sternberg 269 Tiemeyer V. Turnquist 288 Tiffany v. St. John. , 315 Tiffany\^Lord 31, 123 Tighev.fope 298 TiUottsonv. Nye 247 Tillspaugh v. Dick 530. 532 Tim v. Smith 639, 640 Tindal v. Jones , 668 Tiukey v. Langdon -. 667 Tisdale v. Morgan 306 Tisdale v.President, etc., D. & H. C. Co 251, 329 Toch V. Toch 554 Toddv.Todd 333 ToU V. Thomas „ 670 Tomlinson v. Borst 272 Tomlinson v. Mayor 384 Tompkins v. Acer 89, 90 Tompkins v. Ives 117, 499 Tompkins v. Smith .' 657 Tompkins V. Wadley 281 Tooker V. Arnoux , 247, 248, 301 Tooker V. Gormer 275, 293 Tooley v. Bacoa 288, 289 Town of Hancock v. First Nat. Bank 149 Town of Mentz V. Cook 64 Town of Middletown v. Rondout & O. R. Co 649, 652 Town of Needham 456 Town of Pierrepont v. Lovelass 138 Town of Rochester v. Davis 649 Townsend v. Bissell 481 Tovirnsend v. Fromer 27 Townsend v. Glens Falls Ins. Co 261, 392 Townsend v. Hendricks „., 58, 68, 69, 138 Tozer V. N. Y. o. & H. E. R. Co 288 Tracy v. Stearns . - '?! Tracy T. Suydam ,... - 169 Table of Cases. ci Page. Tradesmen's Nat. Bank v. McFeely 2al Train v. Holland Purchase Co 319 Traver v. Eighth Ave. R. Co 298 Tribune Ass'n v. Smith 239, 281 Trier v. Herman 114 Trimmer v. Trimmer 368 Truesdell v. Bourke 304, 305 Truesdell v. Sarles 593 Trust V. Person 491 Trust V. Repoor 30 Trustees of East Hampton v. Kirk 319, 333 Trustees of Penn Tan v. Forbes 196 Trustees of Penn Yan v. Tuell 234, 535 Tubbs V. Hall 545 Tucker v. Ely 383 Tucker v. Gilman 519 Tuck V. Manning 36, 38 Tuckerman v. Corbin 103 Tugman v, Nat . Steamship Co 313 Tunstall v. Wiuton 34 Turner v. Bayler ....;.. 214 Turner v. Burrows - - 89 Turner v. Citj of Newburgh 286 Turner v. Hoasinger 117 Turner v. Taylor 68, 71 Turner v. Van Ripper 481 , 482 Turtle V. Turtle 643 Tuska V.Wood 96 Tuthill V. Clark 497 Tuthill V. Long Island R. Co 99 Tweed V. Davis 246 Tweeds Case 846 Twombly v. Cassidy 465 Tyng V. Commercial Warehouse Co 306 Tyng V. U. 8. Submarine & T. B. Co 183 Tyrrell v. Lockhart 344 U Udderzoak v. Commonwealth ,.<.™~... ,...«^-.. . 370 TJertz V. Singer Mfg. Co 389 Uhlfelder v. Tamsen -- 372 Ulinev. N. Y. C. &H. R. B.Co..... 171 Union Bank v. Mott • 554 Union Bank of Sandusky v. Torrey 180 Union Furnace Co. v. Shepherd 641 Union Ins. Co. v. Van Rensselaer 476 Union Mfg. Co. v. Byington 267 Union Square Bank v. Reichman 162, 179, 180 Union Trust Co. v. Whiton. 544 cii Table of Cases. Page. United States v. Barrels of High Wines 262 United States Life Ins. Co. v. Jordan 219 United States Vinegar Co. v. Sohlegel 296 Untermeyer v. Bienhauer 58. 68, 69, 70, 128 Utica City Bank V. Baell 651 Utica Ins. Co. v. Cadwell 185 Vailv.Rioe 331 Valentine v. Lunt 318 Valentine y. McCue 423, 424 Valton V.Nat. Fund Life Ass. Co - 276 Van Allen v. Farmers' Joint Stock Ins. Co 318 Van Alstyne v. Cook 622 Van Auken v. Stewart 94 Van Benthuysen v. Albany Northern R. Co 644 Van Bergen v. Ackles 538 Van Bokkelen v. Berdell 259 Van Buren v. Cockburn , 267 Van Buren v. Wells 290 Van Brunt v. Van Brunt 548 Vanderbeck v. City of Rochester 461 Vandercook v. Cohoes Sav. Inst 468 Vandervoort v. Columbian Ins. Co 165, 166 Van Dewater v. Gear .27, 28 Van Dyke V. McQuade 88 VanGelder V. Van Gelder 223 Van Gilder v. Hallenbeck 533 Van Kleek v. Nichols 86 VanNes? v. Bush 276, 377, 401 Van Nuys v. Titsworth 40 Van Bay v. Harriott 147 Van Rensselaer v. Kidd 554 Van Rensselaer v. Jewett 70, 310 Van Schaiok v. Winne 657, 668 Van Slyke V. Hyatt 884 Van Syckles v. Perry 300, 307. Van Valkenburgh V. Van Schaick 520 Van Vechteu v Graves 308 Van Vechten v, Hopkins 134 Van Voast V. Gushing 436 Van Wyck v. Baker 505 Van Zandt v. Mut. Bjn. Life Ins. Co 264 Van Zandt v. Van Zandt 216 Varona v. Socarras 281 Varnum v. Wheeler 562 Vaughn v. Westover 258, 279 Veeder v. Baker 90, 91, 9a Veeder v. Coaley 313 Table of Cases. ciii Page. Veetlerv, Mudgett 558, 561, 563. 564 Veiller V. Oppeoheim 191, 192 VeDce V. Speir SCO Vermilljea v. Palmer 133, 375, 377 Vermont Cent. R, Co. v. Northern R. Co 88 Vemol V. Vernol 400 Verplank v. Kendall 69 Vestner V. Findlay 305 Vibbard v. Roderick 303 Vicas V. Page 660 Victoria, etc., Mfg. Co. v. Beecher 2i7 Victory V. Blood 588 Village of Little Falls v. Cobb 217 Village of Palmyra v. Wynkoop 39 1 Vilmar v. Schall 553 Vilmar v. Sohall 159, 180 Vincent v. Moriarity 593 Vogt Mfg. Co. V. Oettinger 333 Voorhis V. French 550 Voorhis V. Voorhis 401 Vosburgh v. Thayer 273 Vroomaii V. Jackson 804 W Waffle V. Dillenbect 3S3 Wagner V. Jones 391 Waggoner v. Finch 367 Wahle V. McMillan 147, 153 Walbridge v. Dewing Pub. Co 337 Walden v. Davison , . . . 184 Waldheimv. Sichel 304 Wakenshaw v. Perzel 634, 636 Walker v. Chilson 196 Walker v. Dunspaugh 357 Walker v. Granite Bank 187, 192 Walker v. Johnson 115 Walker V. RusseU 493 Walker v. Spencer 314 Walker v. Tamsen 303 Wallv. Brach : 378 Wallace v. Blake 164, 169 Wallacev. Am. Linen Thread Co 62, 117, 875, 499 Wallace v. Bond - 98 Wallace v. Eeinhart 1.57 Wallace v. Syracuse, etc., R. R. Co 196 Wallace V. Vacuum Oil Co 288 Wallace T. Wallace 153 Walmsley T. Nelson 668 Walradt v. Maynard 31 *^'v Table of Cases. Page. Walrath V. Abbott 383 WaJsliv. Kelly 333, 337 Walehv. Mead 337 Walsh V. Mut. Ins. Co 133 Walsh v. People 251 Walter v. Bennett 304, 311 Walton V. Goodwin 171 Walton V. Walton 215 Wardv. Bailey 345 Ward V. Craig 407 Wardv. Dewey 196, 197 Ward V. Forrest 334 Ward V. Kilpatrick 288, 289 Ward V. Plato 59 Ward V. Roy 81, 520 Ward V. Ruckman 226 Ward V. Ward 567 Wardv. Warren 376 Ward V. Washington Ins. Co , 255 Warden v. Eden 634 Waring v. Chamberlain 71, 72 Warner v. Baboock 116 Warner v. Braunstein 381 Warner V. Harvey , 165 Warnerv. N. T. C. & H. R. R, Co 312, 313 Warner V.N. Y. Cent. R. Co 343, 344, 345, 346 Warner v. Village of Randolph 270 Warner v. Western Trans. Co 69, 630 Warren v. Buckley , 481 Warren v. Chase 558 Warren CheTi.. etc., Co. v. Holbrook 294 Washburne v. Herriok 196 Waterbury v. Cordage Co 553 Waterbury v. Westervelt 533 Waterman v. Van Benschotten 475 Waterman v. Waterman 125, 131 Watertowti Bank* L. Co. v. Mix 339 Watts V. Wilcox 151 Waters V. Shepherd 393, 396, 398 Watson V. Donnelly 309 Watson V. Gardiner .171 Wayland v. Tysen 61 Wayne Co. Savirgs Bank v. Brackett 146, 148 Weed V. CantweU 521 Weaverv.Ely 550. 551 Weaverv. White 309 Webbv. Foster 61 Weber v. Kiogsland 310 Weber V. N. Y. C. iS: H. R. R. Co 313, 314 Table of Cases. cv Pago- Webster V. Bond 299, 369, 370, 871 Webster v. Nichols ■ 615 Webster V. Stockwell 151 Weed V. Halladay 98 Weed V. Paine 476, 546, 548, 55? Weeks v. Hart 346 Weeks V. South wick 667 Weeks v. Tomes _ 464 Weiohesel v. Spear 656 Wehrkamp v. Willet 281 Welby V. Elston 50 Welling V. Ivoroyd Mfg. Co 494 Welling V. Eyerson 468 Welling V. Sweet 90, 97 Wells V. Cox 345 Wells V. Higgins 337 Welsh V. Darragh 69, 73 Welsh V. Fallihee 482 Wendell v. Lewis 608 Wendell V. N. Y. 0. & H. R. R, Co 318, 313, 814 Wentworth v. Wentworth 662, 663, 666 Werbelowsky v. Greenwich Ins. Co 115 West V. American Ex. Bank _ 51 Westv. Lynch 259' , West V. City of Utica 508, 511 Westbrook v. Merritt 94 Westerloo v. DeWitt 402 I Westlake v. St, Lawrence Mut. Ins. Co 263 West Point Foundry v. Reymert 63 Weston V. Reich 15S Wessels v Boettcher 84 Weasels V. Carr 213 Wetmore v. Hegeman 27 Wetmore v. Parker , 475 Wetmore v. Porter 214 Whalen v. Board of Supervisors 362 Wheaton v. Voorhis 303 Wheeler v. Billings 407 Wheeler v. Emmeluth 63a Wheeler V. Falconer 126, 129 Wheelerv. Lozee 138, 570, 586 Wheeler V. Ruckman 320, 659, 570, 572 Wheeler V. Sweet 340 Wheeler V. Wright 519 Wheelockv. Hotchkiss 588 Wheelockv. Lee 58, 59, 60, 63, 331, 592 Whipple V. Williams 535, 666 Whitcomb v. Hungerford 304 Whitcomb v. Whitcomb 515 cvi Table of Cases. Page. White V. Hall 96 Whitev Khnken 628 White V. Monroe 663, 665 White V. Old Dominion S. S. Co 291 Whiteside v. Noyac Cottage Ass'n 610 Whitlatcnv. Fidelity & Casualty Co 274, 333 Whitman v. Nicol 533 Whiting V. Mayor, etc., of N. Y 231 Whitlock V. Roth ' 639 Whitney v. Belden 655 Whitney v. Roe 557, 562 Whitney v. Townsend 623 Whitney V. Whitney 59, 229 Whitney V. Wyncoop 168,169 Whittaker v. Desf osse 70, 78 Whitteu V. Fitzwater 335 Wickes V. Dresser 655 Wiokham v. Frazee 69 Wiggin V. Phelps 96, 97 Wiggins V. Arkenburgh 533 Wiggins V. Downer 340 Wiggin V. Gans 417, 418 Wiggins V. Talmage 497 Wilber v. Williams 554 Wilbur V. White 518 Wilcox V. Dodge 171 Wilcox Silver Plate Co. t. Green 368 Wilcoxv. Wilcox 370 Wilds V. Hudson River R. Co 812, 383 Wile V. Brownstein 195 Wiley V. Long Island R. Co 554 Wiley V. Village of Rouses Point 318 Wilklev. Chadwlck 586 Wilkinson v. Johnson 103 Wilkinson V. Paddock 438, 435 Willard v. Doran & Wright Co 69 Willard v. Strachan 494 Willett V. Payer weather 663 Willets V. Van Alst 426 Willey V. Shaver 503 Williams v. Allen 69 Williams v. Blumer 510 Williams V. Brooklyn El. R. Co . . 329 Williams V. Cassady 492,568,569 Williams v. City of Buffalo 508 Williams V. Eldridge 178, 257 Williams V. Folsom 149, 150 Williams V. Huber 663 Williams v. Mechanics & T. Fire Ins. Co 292, 311 Williams v. Metropolitan Ins. Co 285 Table of Cases. cvii Page. Williams v. Montgomery 345 Williams v. Murray 660 Williams v. Sargeant 283, 288 Williams v. Thorn 621 Williams V. Western Union Tel. Co 552, 643 Willink V. Renwick 656 Willis V. Fairchild 215 Willis V. Forest 830 Wilson T. Barney 665 Wilson V. Doran 498 Willson V. Eveline 282 Wilson V. Henderson 660 Wilson V. Press Pub. Co 247 Wiltsie V. Eaddie 384,408 Winch V. Farmers' Loan & T. Co 301 Winchellv. Hicks 318 Winchell V. Winchell 253 Windeoker v. Mut. Life Ins. Co 505, 509 Wing V. DeLa Rionda 31, 544 Wingv. N. Y. &ErieR. Co 479 Winne V. Fanning 545,554 Winne v. McDonald 331 Winnebrennef v. Edgerton 684 Winslow V. Bliss , 318 Wintjen v. Verges 91 Wiseman v. Bemington Sewing Mach. Co 106, 107 Wisner v. Consolidated Fruit Jar Co 214, 215 Witherhead V. Allen 214 Wiwirowski v. L. S. & M. S. R. Go 313 Wolcott V. Holcomb 519 Wolcott V. Weaver 431, 432 Wolf V. Crandall 321 Wolf V. Di Lorenzo 293 Wolfe V. Horton 197 Wolpau V, Eyster 344 Wombough v. Cooper 331, 323 Wood V. Bishop 97 Woods V. Buffalo R. Co 292 Wood V. Crowner 128 Wood V. Hope , 69, 128 Wood V. Howard Ins. Co 163 Wood V. Kimball 655 Woodv.Kral 156 Wood V. Lambert 609 Woodv. Lary 364. 383, 390 Wood V. Mayor of N. Y 120, 123 Wood V. McGuire 263 Wood V. Morehouse 423 Wood V. Stoddard 242 Wood V. Weimar 289 cviii Table of Cases. Page. Wood V. Whiting , 51 Woods V. Figianiare. 190, 387 Woodburn v. Chamberlain 316, 317 Woodford v. Bucklin 511, 574 Woodruff V. Dickie 300- Woodruff V. Fisher. .. , 664 Woodruff V, McGrath 402 Woodruff V. N. Y., L. E. etc., R. C!o 555- Woodward V. Republic Fire Ins. Co 277 Woodworth V. Brooklyn El. R. Co 264, 50» Wolsey V. Trustees of Allen ville..., 253 Woolsey v. Trustees of Ellenville 526 Woolsey v. Village of Rondout 300- Woonsocket Rubber Co. V. Rubber Clothing Co 552 Work V. City of Buffalo 565 Worman v. Frankish 662 Worrall V. Parmelee 292 Worthy V. Gilbert 94, 98 Wray V. Frederke „ 205 Wright V. Cabot 180 Wright V. Chapin 222, 383 Wright V. Delafield 593 Wright V. Hunter 350 Wright V. Jes3up , 164, 165 Wright V. Paige 280, 281, 333 Wright V. Reusens 366, 367 Wright V. Wright 214 Wroev. State 259 Wunsch V. Weber 160 Wycklen v. City of Brooklyn 264 T Yamato Trading Co v. Brown 153 Yamato Trading Co. V. Hoexter 494 Yates V. Alden 301 Yale V. Gwinta . » 403 Yates V. Mc Adam 196, 198 Yatesv. North „ 639 Young V. Arndt »,^ ... 95 Young V. Catlete 268 Touag V. Johnson... „ „ .243, 284 YorkB V. Peck 137, 627 Youngv, Roberts 323 Z Zabriskie V. Smith 214, 333, 333, 338 Ziegler V. Lamb 151 Zeimer v. Raflferty 4 Zellweger v. Caffe 180> Zimmerman v Schoenf eldt 873 Zenner v. Dexter 98- Zorkowski v. Astor 382- CHAPTER I. COURTS OF RECORD OF THE STATE OF NEW YORK. SECTION I. Enumeration of Courts of Record. The word "Court" is often used indiscriminately to designate the place appointed for the transaction of judicial business ; the persons assembled at that place for that purpose ; the judge or judges sitting for the hearing of motions or appeals or the trial of causes ; and the tribunal established for the admin- istration of justice. In the language of the layman the judge is the court. A court is a tribunal organized according to law and sitting at fixed times and places for the administration of justice, and not an individual holding a judicial office. {People v. Trustees, 151 N. Y., 75-) The distinction between courts of record and courts not of record seems to have been observed since the earliest times. In the time of Blackstone a court was defined as a place wherein justice is judicially administered, and a court of record as one where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls were called the records of the court. The proceedings of courts, not of record, were not enrolled or recorded. (3 Bla. Com., 23-25.) How far the reason for this general classification of the early courts is applicable to-day is perhaps unimportant. In this state courts of record are defined by statute and limited by the constitution. They are the Court for the trial of impeach- ments ; the Court of Appeals ; the appellate division of the Supreme Court in each department; the Supreme Court; the Court of General Sessions of the peace in and for the city and county of New York ; the City Court of Long Island city; the City Court of Yonkers ; a County Court in each county except New York ; the City Court of the city of New York ; the Mayor's Couit of the city of Hudson ; the Recorder's Court of the city of Trial Practice. Courts Recently Abolished. Utica ; the Recorder's Court of the city of Oswego ; the Justices" Court of the city of Albany ; a Surrogate's Court in each county; and the Court of Claims. (Code of Civ. Pro., § 2.) The legislature has power to establish inferior local courts of civil and criminal jurisdiction but has no power to make them courts of record. (Const. Art. VI., § 18.) A partial enumeration of courts not of record is contained in the Code. (See Code of Civ. Pro., § 3.) The names and the number of these courts are changing continually with the growth of cities and the extension of boundaries. (See Greater New York Charter, Chap. 378, Laws of 1897, §§ 1345-1418.) SECTION II. Courts Recently Abolished. By the amendment of the Constitution adopted in 1894, and the legislation resulting therefrom, radical changes were made in the judicial system of this state. The Superior Court of the City of New York, the Court of Common Pleas for the City and County of New York, the Superior Court of Bufifalo, and the City Court of Brooklyn, were, from and after the first day of January, 1896, abolished, and the jurisdiction exercised by these courts was vested in the Supreme Court. (Const. Art. VI., § 5.) Circuit courts and courts of Oyer and Terminer were also abolished, and all their jurisdiction was vested in the Supreme Court. (Id. § 6.) The Supreme Court was continued with general jurisdiction in law and equity; and an appellate division of that court was created and vested with the jurisdiction then exercised by the Supreme Court at its general terms and by the general terms of the Court of Common Pleas for the City and County of New York, the Superior Court of the City of the City of New York, the Superior Court of Buffalo, and the City Court of Brooklyn. (Const. Art. VI., §§ i, 2; Code of Civil Pro., § 220.) The county courts were continued, and courts of sessions, except in the county of New York, were abolished and all their jurisdiction vested in the several county courts. (Const. Art. VI., § 14.) Appeals from inferior and local courts formerly heard in the Court of Common Pleas for the City and County of New York, or in the Superior Court of Buffalo are now heard in the Supreme Court. (Const. Art. VI., §5; Code of Civ. Pro., Courts Recently Abolished. Division of the State into Judicial Districts and Departments. § 220.) The Board af Claims is continued but is known as the Court of Claims. (Laws of 1897, Chapt. 36, Code of Civ. Pro., g§ 263-280.) The City Court of New York is continued but with the proviso that the word " city," in setions 338, 3165,3169, 3170 and 3268 of the Code of Civil Procedure shall be construed to mean and apply to the territory within the City of New York as it existed and was constituted prior to the sixth day of June, 1895. (The Greater New York Charter, Chap. 378, Laws of 1879, § 1345.) The Justice's Courts in the cities of Brooklyn and Long Island City are abolished and the District Courts of the City of New York and the Justices' Courts of the first, second and third districts of the City of Brooklyn are continued, consolidated and reorganized under the name of "The Municipal Court of the City of New York." (Id., §§. 1350, 1351.) The seals, books, files, records, papers and documents of the courts abolished are deposited in the offices of the clerks of the several counties in which such courts heretofore existed, and are kept and preserved separate and apart from the other books, records and papers in such offices, in charge of special deputy clerks, so as to be readily accessible for inspection. (Code of Civ. Pro., § 93.) SECTION IIL Division of the State into Judicial Districts and Departments. The State of New York is divided into eight judicial districts consisting of one or more counties, as follows : First District. — City and County of New York. Second District. — The counties of Richmond, Suffolk, Queens, Kings, Westchester, Orange, Rockland, Putnam, and Dutchess. Third District. — The counties of Columbia, Sullivan, Ulster, Greene, Albany, Schoharie, and Rensselaer. Fourth District. — The counties of Warren, Saratoga, Wash- ington, Essex, Franklin, St. Lawrence, Clinton, Montgomery, Hamilton, Fulton, and Schenectady. Fifth District. — The counties of Onondaga, Oneida, Oswego, Herkimer, Jeffersoa, and Lewis. Trial Practice. Time ard place of holding terms of Courts of Record. Sixth District. — The counties of Otsego, Delaware, Madison, Chena go, Broome, Tioga, Chemung, Tompkins, Cortland and Schuyler. Seventh District — The counties of Livingston, Wayne, Sen- eca, Yates, Ontario, Steuben, Monroe, and Cayuga. Eighth District. — The counties of Erie, Chautauqua, Catar- augus, Orleans, Niagara, Genesee, Allegany, and Wyoming. The legislature may alter the judicial districts once after every enumeration under the Constitution of the inhabitants of the State, but until so changed the existing judicial districts of the State are continued. (Const. Art. VI., § i.) The State is also divided into four judicial departments. The first department consists of the county of New York ; the second, of the counties embraced within the second judicial district ; the third, of the counties embraced within the third, fourth and sixth judicial districts; and the fourth, of the counties embraced within the fifth, seventh and eighth judicial districts. (Code of Civ. Pro., § 219.) Once every ten years the legislature may alter the judi- cial departments, but without increasing the number. (Const. Art. VI., § 2.) Notwithstanding the annexation of a part of the county of Westchester to the city and county of New York, the annexed district still remains a part of second judicial district and depart- ment. {People V. Supervisors, 147 N. Y., i; Zeimer v. Rafferty, 18 App. Div., 397.) It must necessarily follow that the exten- sion of the boundaries of the city of New York so as to include all of the counties of Richmond and Kings and a part of the county of Queens, and the creation of the county of Nassau out of a part of the county of Queens, still leaves the territory embraced in the extension and changes mentioned a part of the second judicial district and department. (See People v. Board of Aldermen, 89 Hun, 460.) SECTION IV. Time and Place of Holding Terms of Courts of Record. Court of Appeals. — The terms of the Court of Appeals must be appointed to be held at such times and places as the court thinks proper, and continued so long as the public interest Time and Place of Holding Courts of Record, 5 Appellate Division. requires. (Code of Civ. Pro., § 196.) A term of the court may be appointed to be held in a building other than that designated by law for holding courts ; and a term may be adjourned from the place where it is appointed to be held to another place in the same city. (Id., § 197.) Appellate Division.— The Appellate Division of the Supreme Court in the First Judicial Department is located in the City of New York ; in the Second Department, in the City of Brooklyn ; in the Third Department, in the City of Albany ; and in the Fourth Department, in the City of Rochester; but terms of the court may be held elsewhere in such departments whenever, in the discretion of the justices thereof^ respectively, public interests so require. (Code of Civ. Pro., § 220). The terms of the Appellate Division of the Supreme Court are appointed by the appellate division in each department and are held at such times and places, and continue so long as the appellate division deems proper. (Id., § 225 ) An appointment of a term or terms of an appellate division must be made and filed in the office of the Secretary of State at least thirty days before the commencement of .such term or terms ; and the secretary must immediately publish a copy of the appointment in the newspaper printed in Albany in which legal notices are required to be published, at least once in each week for four successive weeks. (Id., § 226.) Special and Trial Terms of the Supreme Court. — The jus- tices of the appellate division in each department are empowered to fix the times and places for holding special and trial terms therein, and assign the justices of the departments to hold such terms, and to make rules therefor. (Const. Art. IV., § 2 ; Code of Civ. Pro., § 232.) If such justices have not exercised this power before the first day of December in any odd numbered year, the justices of the Supreme Court for such judicial depart- ment, or a majority of them, not designated as justices of the appellate division, must, between the first and fifteenth days of December in each of such years, appoint the times and places for holding the trial and special terms of the Supreme Court withi-rf their department for the two years from the first day of January of the year following. If for any Trial Practice. Special and Trial Terms of the Supreme Court. reason the appointment is not made before the time specified it must be made at the earliest convenient time thereafter. (Code of Civ. Pro., § 232.) The provision of the statute as to time is directory. {People v. Youngs, 151 N. Y., 210.) An appointment so made must be signed by the justices making it and im- mediately filed in the office of the Secretary of State who must publish a copy thereof in the newspaper printed at Albany in which legal notices are required to be published at least once in each week for three successive weeks before the holding of a term in pursuance thereof. (Code of Civ. Pro., § 233.) If the ap- pointment is made by the justices of the appellate division, a duplicate thereof must also be filed in the office of the clerk of that division, who must immediately certify and transmit a copy thereof to each of the justices of the Supreme Court in such de- partment not designated as a justice of an appellate division. (Id., §232.) At least one special term and two trial terms must be appointed to be held in each year in each county separately organized, Ful- ton and Hamilton counties being deemed one county for this purpose (Id.) The place appointed within each county for holding a special term of the Supreme Court at which issues of fact are triable, or a trial term, must be that designated by the statute for holding the County Court. (Id., § 238.) The place so designated is the court house of the county. (3 R. S. [7th ed.] 2358, § 21; Code of Civ. Pro., § 355; Bennett v. Cooper, 57 Barb., 642.) The justices of the appellate division of the Supreme Court in the second judicial district and department are authorized by statute to ap- point as many special terms of the Supreme Court as they shall deem expedient to be held in such place in the county of Rich- mond as may be designated for such purpose by the Board of Supervisors for that purpose, at which terms all business may be transacted and cases tried and heard which do not require the attendance of a jury. (Laws of 1897, Chap., 541, § i.) Two or more trial terms may be appointed to be held and may be held at the same time in any county. A trial term in any county may be held in two or more parts, and a jury panel may be summoned to serve in each part or the jurors may be drawn from one panel. (Code of Civ. Pro., § 232 ) Time and Place of Holding Courts of Record. T The Court of Claims. The governor, when in his opinion the public interest so re- quires, may appoint an extraordinary special or trial term of the Supreme Court. He must designate the time and place of hold- ing such term, and the justice by whom it is to be held, and give notice of the appointment in such manner as in his judgment the public interest requires. (Code of Civ. Pro., § 234.) If a special or trial term of the Supreme Court is in danger of failing, the appellate division of the department in which it is to be held, if in session, or if not, then the governor, may designate a justice or justices of the Supreme Court residing in that depart- ment to hold the term in the absence of the justice or justices as- signed thereto. (Code of Civ. Pro., § 237.) The Court of Claims. — The statute requires that the Court of Claims shall hold at least four sessions in each year at the Capitol in the city of Albany, and empowers it to hold adjourned or special terms at such other times and places in the state as it may determine ; and also to hold a session and take testimony where the claimant resides or where the claim is alleged to have arisen, or in the vicinity, and to view any premises affected by the pro- ceeding. The sheriff of anv county, except Albany, is required to furnish for the use of the court suitable rooms in the court house of his county for any session ordered to be held thereat, and if required to attend the session. (Code of Civ. Pro., §268.) The City Court of the city of New York. — The Code pro- vides that the justices of the City Court of New York, or a majority of rhem, from time to time must appoint, and may alter, the times of holding general, special and trial terms of the court. They must prescribe the duration of the terms ; desig- nate the trial terms in which jurors are required to attend; and assign the justice or justices to preside and attend at each of the terms so appointed. In case of the inability of a justice to pre- side or attend another justice may preside or attend in his place. Each trial and special term must be held by one justice; and each general term by at least two justices. Two or more general, special or trial terms may be appointed to be held at the same time. (Code of Civ. Pro., § 324.) Each term so appointed must be held at the City Hall, in the Trial Practice. Terms of the County Court. city of New York, except that auxiliary or additional parts for the transaction of any business specified in the appointment may be held elsewhere in the city of New York as designated in the appointment. (Id., § 325.) A recent statute provides that any building, room or premises procured or leased in accordance with law, for the use of the City Court, in the city of New York, shall be deemed a part of the City Hall of the city of New York, for the purpose of holding terms of the City Court therein. (Laws of 1897, Chap. 632, §1.) An appointment must be published in two newspapers published in the city of New York, at least once in each week for three successive weeks before a term is held in pursuance thereof. (Code of Civ. Pro., § 325.) The County Court. — The timesandplacesof holding the terms of the County Court are appointed from time to time by the county judge. At least two terms for the trial of issues of law or fact must be appointed to be held in each year. Each term may continue as long as the county judge deems necessary. The county judge by a new appointment may change the day for holding the term, or appoint one or more additional terms, or dispense with the holding of a term, without affecting any other term or terms theretofore appointed to beheld. Each term must be held at the place designated by the statute for that purpose, except that the county judge from time to time may adjourn a term to any place within the county for the hearing and decision of motions and appeals and trials and other proceedings without a jury; and may appoint as many terms as he thinks proper to be held either at the court house or els-^where in the county for the same purpose. (Code of Civ. Pro., § 355.) Each appointment of terms made by the county judge must be filled in the county clerk's office, and a copy thereof pub- lished at least once in each week for three successive weeks before a term is held, changed or dispensed with, by virtue thereof, in the newspaper in the city of Albany in which legal notices are required to be published, and also in at least one newspaper published in the county, and in as many additional newspapers published therein, as the county judge prescribes. (Id., § 356.) In the county of Richmond, the county judge is authorized Time and Place of Holding Courts of Record. 9- Change of place of holding term in case of pestilence. by statute to hold terms of the County Court and Surrogate's Court not requiring the attendance of a jury, at such place in the county other than the court house, as the board of super- visors may designate and fit up for that purpose. (Laws of 1897, Chap. S4I, § I.) Change of place of holding term in case of pestilence, etc. — If the Governor deems it requisite, by reason of war, pesti- lence or other public calamity, or the danger thereof, that the next ensuing term, or the next ensuing adjourned sitting of the Court of Appeals, or the next ensuing term of any other court of record, appo nted to be held elsewhere than in the city of New York, should be held at a place other than the one appointed, he may, by proclamation, appoint a different place within the district for holding the term ; and at any time there- after he may revoke the appointment and appoint another place, or leave the term to be held at the place where it would have been held but for his appointment. (Code of Civ. Pro., § 38.) So if a malignant, contagious or epidemic disease exists at the place where a term of a court of record is appointed to be held and the Governor has not appointed another place for holding the term, the judge, or if there are two or more, the chief or presiding judge designated to hold the term may, by order, direct the holding of the term at another specified place within the district. (Id., § 40.) And if, during the actual session of a term of a court of record, the judge, or a majority of the judges holding the term, deem it inexpedient by reason of war, pestilence or other public calamity, or the danger thereof, or the want of suitable accom- modation, that the term should be continued at the place where it is then being held, the court may, by order, adjourn the term to be held at any other time and place within the district. (Code of Civ. Pro., § 41.) So the mayor, or in case of his absence or other disability, the recorder of the city of New York, may by proclamation direct that the next ensuing term of any court other than the Court of Appeals, appointed to be held in that city, shall be held in any building within the city of New York other than the building where the same is regularly to be held if, in his opinion, war,. 10 Trial Practice. Change by stipalatioa. pestilence or other public cakiinity, or the danger thereof, or the destruction or injury of the building, or the want of suitable acconaaiodation, renders it necessary that some other place should be selected, (Id., § 42.) If the building established as a court house in any other ■county is destroyed or is for any cause unsafe, inconvenient or unfit for holding court therein, the county judge of the county may, by an order filed in the office of the clerk of the county, appoint another building in the vicinity for temporarily holding courts. The building so appointed becomes the court house of the county for the time being, and business transacted therein has the same effect as if it was transacted at the usual place. urt has power to hold a special or trial term of the Supreme Court for the whole or any portion of that term, and to act upon any busi- ness which regularly comes before the term in which he is sitting, except where he is personally disqualified from sitting in a par- ticular action or special proceeding. (Code of Giv. Pro., §235.) A county judge in any county may hold County Court in any other county when requested by the judge of f.uch other county. (Const. Art. VL, § 14.) The statutory limitations as to the judicial districts in which a motion must be made and heard will be considered hereafter. Limitations of powers of judges of Appellate Courts. — No judge or justice can sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or of any court of which he was at the time a sitting member. (Const. Art. VI.. § 3.) No justice of the Appellate Division can exercise any of the powers of a justice of the Supreme Court other than those of a justice out of court and those pertaining to the Appellate Divi- S'on, or the hearing and decision of motions submitted by con- sent of counsel. (Id., § 2; Code of Civ. Pro., § 220.) The pur. pose of this provision of the constitution was to absolutely divorce the justices of the Appellate Division from all connec- tion with the trial courts, except as to the motions submitted by consent of counsel, and its command is clear and imperative. Therefore a justice of the Appellate Division has no power even by consent of counsel to receive the verdict of a jury at a trial term of the Supreme Court. {French v. Merrill, 27 App. Div., 612.) A judge of the Court of Appeals whose term of ofifice has been abridged by the age limitation, but whose compensation continues, may, with his consent, be assigned by the governor to any duty in the Supreme Court. (Const. Art. VI., § 12.) So a justice of the appellate division, whose designation to that court has been revoked at his request, may be assigned to such duties 18 Trial Practice. Other disabilities of judges. in holding court in any part of the state as the governor may- prescribe. (Code of Civ. Pro., § 222.) Other disabilities of judge«. — A judge cannot sit as such in, or take any part in, the decision of a cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree. The degree of relationship is ascertained by ascending from the judge to the common ancestor and descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor. (Code Civ. Pro., § 46.) A judge has no jurisdiction where such rela- tionship exists between him and a party, and any trial or pro ceeding before him in such case is absolutely void. {People v. Connor, 142 N. Y., 130; Baldwin v. McArthur, 17 Barb., 414 f Rivenburgh v. Henness, 4 Lans., 208. See Matter of Dupuy, 29 St. Rrp., 642.) Even the consent of both parties that the judge shall sit will not confer jurisdiction. (Oakley v. Aspin- wall, 3 N. Y., 547.) The disqualification for interest extends to a referee who, subsequent to the making of his report in favor of a party, is given a lien upon the judgment and claim of the party as a consideration for delivering his report. [Leonard v. Mulry, 93 N. Y., 392.) But where a judicial officer has not so direct an interest in ttie cause or matter that the result must necessarily affect him to his persohal or pecuniary loss or gain, or where his personal or pecuniary interest is minute, and he has so exclusive jurisdiction of the cause or matter by the constitution or by statute that his refusal to act will prevent any proceeding in it, then he may act so far that there may not be a failure of remedy, or, as it is sometimes expressed, a failure of justice. [Matter of Ryers, 72 N. Y., i.) A judge of the Court of Appeals is not disqualified from taking part in the decision of an action or special proceeding in which an insurance company is a party or is interested by reason of his being a policy holder therein. (Code of Civ. Pro., § 46.) A judge other than a judge of the Court of Appeals, or of the Appellate Division of the Supreme Court, is prohibited from Judges or Justices of Courts of Record. 19 A judge cannot directly or indirectly be interested. deciding or taking part in the decision of a question which was argued orally in the court when he was not present and sitting therein as a judge. (Id.) A judge cannot directly or indirectly be interested in the costs of an action or special proceeding brought before him, or in a court in which he is or is entitled to act as a member, except an action or special proceeding to which he is a party or in which he is interested. (Id., § 47.) But a judge of a court of record is not disqualified from hearing or deciding an action or special proceeding, matter or question, by reason of his being a resident or tax payer of a town, village, city or county interested therein. (Id., § 48.) A judge is prohibited from practicing or acting as an attorney or counselor in any court of which he is or is entitled to act as a member, or in a cause originating in that court. (Id., § 49.) And he is also precluded from acting as an attorney or counselor in any action or special proceeding which has been before him in his official character. (Id., § 50.) A judge or other judicial officer is prohibited from demanding or receiving a fee or other compensation for giving his advice in a matter or thing pending before him or which he has reason to believe will be brought before him for decision, or for preparing a paper or other proceeding relating to such matter or thing, except a justice of the peace in a case where a fee is expressly allowed to him by law. (Code of Civ. Pro., § 51.) The constitution of this state provides that no judicial ofificer except justices of the peace shall receive to his own use any fees or perquisites of office ; nor shall any judge of the Court of Appeals, or justice of the Supreme Court, or any county judge or surrogate, hereafter elected in a county having a population exceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record in this state, or act as referee. The legislature may impose a similar prohibition upon county judges and surrogates in other counties. Also, that no one shall be eligible to the office of judge of the Court of Appeals, justice of the Supreme Court, or, except in the county of Hamilton, to the office of county judge or surrogate who is not an attorney and counselor of this state. (Const. Art. VI , § 20.) 2U Trial Practice. Proceedings where the judge is disqualified. Proceeding where the judge is disqualified. — In case of the death, sickness, resignation, removal from office, absence from the county, or other disability of an officer before whom a special proceeding has been instituted, where no express provision has been made by law for the continuance thereof, it may be con- tinued before the officer's successor, or any other officer residing in the same county before whom it might have been originally instituted; or if there is no such officer in the same county, be- fore an officer of an adjoining county who would originally have had jurisdiction of the subject matter if it had occurred or ex- isted in the latter county. (Code of Civ. Pro., § 52 ; Gamman v. Berry, 34 Hun, 138.) The statute further provides that at the time and place speci- fied in a notice or order for a party to appear, or for any other proceeding to be taken, or at a time and a place specified in the notice to be given as prescribed in this section, the officer substi- tuted as prescribed in the last section or in any other provision of law to continue a special proceeding instituted before another, may act with respect to the special proceeding as if it had been originally instituted before him. But a proceeding shall not be taken before a substituted officer at a time or place other than that specified in the original notice or order until notice of the substitution and of the time and place appointed for the proceeding to be taken has been given, either by personal service or by pub- lication, in such manner and for such time as the substituted officer directs, to the party who may be affected thereby, and who has not appeared before either officer. Where after a hearing has been commenced it is adjourned to the next judicial day, each day to which it is so adjourned is regarded for the purposes of this section as the day specified in the original notice or order or in the notice to appear before the substituted officer as the case requires. (Code of Civ. Pro., § 53.) This provision of the statute applies to proceedings before an officer, such as a proceeding to punish a party for contempt in not appearing before a referee pursuant to an order made by a county judge in proceedings supplementary to execution. (See Gamman v. Berry, 34 Hun, 13S.J The statute does not apply to a proceeding in court. (Matter of Mayor of New York, 139 N. Y., 140.) Judges or Justices of Courts of Record. 31 Proceedings when judge is disqualified. Another section of the Code provides that an action or special proceeding, civil or criminal, in a court of record, is not discon- tinued by a vacancy or change in the judges of the court, or by re-election or re-appointment of a judge; but must be continued, heard and determined by the court as constituted at the time of the hearing or determination. It also provides that afrer a judge is out of office he may settle a case or exceptions, or make any return of proceedings had before him while he was in office, and may be compelled to do so by the court in which the action or special proceeding is pending. (Code of Civ. Fro., § 25.) When the term of ofifice of a judge expires during the trial of an action before him, and a new term, under a re-election, com- mences immediately upon the expiration of the old term, and the trial proceeds to judgment without objection, the regularity of the proceedings cannot thereafter be questioned. {Kelly v. Christal, 16 Hun, 242.) But a different case is presented where the judge of one court has been temporarily assigned by the governor to hold a trial and special term of another court, and during the holding of such term has resigned the office to which he was elected and has been appointed by the governor a justice of the court in which he was temporarily acting. {Matter of Mayor, etc., of New York, 139 N. Y., 140.) The Code further provides that in the city and county of New York and in the county of Kings, a special proceeding instituted before a judge of a court of record, or a proceeding commenced before a judge of the court out of court in an action or special proceeding pending in a court of record, may be continued from time to time before one or more other judges of the same court with like effect as if it had been instituted or commenced before the judge who last hears the same. (Code of Civ. Pro., § 26.) The Code also provides that if the county judge is for any cause incapable to act in an action or special proceeding pending in the County Court or before him, he must make and file in the ofifice of the clerk a certificate of the fact and thereupon the special county judge, if any, and if not disqualified, must act as county judge in that action or special proceeding. Upon the filing of the certificate, where there is no special county judge, or the special county judge is disqualified, the action or special pro- ceeding is removed to the Supreme Court if it is then pending in 3i Trial Practice. Attorneys and counselors at law. the County Court ; if it is pending before the county judge it may be countinued before any justice of the Supreme Court within the same judicial district. (Code of Civ. Pro., § 342.) Mere voluntary absence of the county judge from the state does not constitute incapacity to act, within the meaning of this section. {Matter of Munger, 10 App. Div., 347.) The procedure on the removal of an action or proceeding from the County Court to the Supreme Court will be considered hereafter. Ample provision is made by statute for the disposition of causes in Surrogate's Court where the office is vacant or the surrogate is disqualified or incapable of acting. (See Code of Civ. Pro., §§ 2484-2497.) In case of the inability of a justice of the City Court of the city of New York to preside or attend at a term of the court to which he has been assigned, another justice may preside or attend. (Id., § 324.) SECTION VII. Attorneys and Counselors at Law. Nature of the office. — Attorneys and counselors at law, and the two characters are inthiscountry generally united in the same person, are officers of the court, admitted to be such by its order upon evidence that they possess sufficient learning to advise as to the legal rights of parties, and to conduct proceedings in the courts for their prosecution or defense, and that they have such fair private characters as to insure fidelity to the interests intrusted to their care. The order of admission is the judgment of the court that they possess the requisite qualifications of learning and character, and are entitled to appear as attorneys and counselors and to conduct causes therein. Thenceforth they are responsible to the court for professional misconduct and are entitled to hold their ofifices during good behavior. Their office is not held as a matter of grace and favor. The right which it confers is something more than a mere license, revocable at the pleasure of the court. It is a right of which they can be deprived only by its judgment for moral or profes- sional delinquency. The admission or exclusion is not the exer- cise of a mere ministerial power, but rather the exercise of judi- Attorneys and Couinselors at Law. 23 Admission of attorneys. nial power, and, therefore, has been properly intrusted to the courts. {Ex parte Garland, 71 U. S., 333; Matter of Cooper, ^2 N. Y., 81.) Attorneys and counselors, though sometimes classed with the judicial officers of the state, are not officers of the state, but are inerely officers of the court in which they are entitled to prac- "ice. {Matter of Burchard, 27 Hun, 429.) Admission of Attorneys. — The Code provides that a citizen of the state of full age, applying to be admitted to practice as '\n attorney or counselor in the courts of record of the state, •tnust be examined and licensed to practice as therein prescribed. Tt creates a state board of law examiners, consisting of three members of the bar of at least ten years' standing, appointed by the Court of Appeals, and holding office for three years. In the performance of its duties, the board is governed by rules prescribed by the Court of Appeals, providing for a uniform system of examination. Examinations are required to t)e held at least twice in each year in each judicial department, and at such other times and places as the Court of Appeals may direct. Each applicant must pay such fee as may be fixed by the Court •of Appeals as necessary to cover the cost of examination, not to exceed fifteen dollars, and is thereupon entitled to the privilege of not exceeding three examinations. Before proceeding with the examination, the board ascertains and determines whether the applicants have complied with the rules regulating the admission of attorneys and counselors, and then, after exam- ining the several applicants, certifies to the Appellate Division of the Supreme Court of the department in which each candi- date has resided for the past six months, every person who has passed the examination. Upon such certificate, if the Appellate Division of the Supreme Court finds that such person is of good moral character, it must enter an order licensing and admitting him to practice as an attorney and counselor in all the courts of the state. Race or sex does not constitue a cause for refus- ing any person examination or admission to practice. (Code Civ. Pro., § 56.) The rules of the Court of Appeals for the admission of attorneys and counselors, and the amendments to the same. 24 Trial Practice. Taking and subscribing oath of office. will be found in the Session Laws. (See Laws of 1896, Vol. I, pp. u 37-1 142; Laws of 1898, Vol. 2, p. 1572.) The amend- ments of these rules are analogous to the amendments of statutes, and should receive the same construction. {Matter oj Warde, 154 N. Y., 342.) Taking and subscribing oath of office. — Each person ad- mitted to practice as attorney and counselor-at-law must upon his admission take the constitutional oath of office in open court and subscribe the same in a roll or book to be kept in the office of the clerk of the Appellate Division of the Supreme Court for that purpose. The clerk upon the payment of the fee allowed by law must deliver to the person admitted a certificate under his hand and official seal, stating that such person has been so admitted and that he has taken and subscribed the constitutional oath of office. (Code of Civ. Pro., § 59.) The oath which every attorney and counselor takes on his ad- mission to the bar implies not only obedience to the constitution and laws, but that he will to the best of his ability advise his clients as to their legal rights, and will discharge with scrupulous fidelity the duties intrusted to him; that he will at all times main- tain the respect due the courts and judicial officers; that he will conform to the rules prescribed by them for his conduct in the management of causes: that he will never attempt to mislead them by artifice or any false statement of fact or intentional misstatement of the law; and that he will never employ any means for the advancement of the causes confided to him except such as are consistent with truth and honor. (Justice Field, in Ex parte Wall, 107 U. S , 265 ) Non-resident attorney. — A person regularly admitted to practice as attorney and counselor in the courts of record of the state whose office for the transaction of business is within the state may practice as attorney or counselor although he resides in an adjoining state. But service of a paper which might have been made upon him at his residence if he was a resident of the state may be made upon him by depositing the paper in a post office in the city or town where his office is located, properly in- closed in a post-paid wrapper, directed to him at his office. A Attorneys and Counselors at Law. 25- Registration of attorneys. service thus made is equivalent to personal service upon him. (Code of Civ. Pro., § 60.) Registration of attorneys. — An act was recently passed for the registration of all persons duly admitted and licensed to practice as attorneys-at-law or as attorneys and counselors-at-law in the courts of record in this state which requires every attorney and counselor practicing law in the courts of record of the state or in any court in the County of New York or the County of Kings, to subscribe and take an oath or affirmation stating the fact as to citizenship, residence, time and place of admission to practice and the taking of the constitutional oath of office, and to file the same in the office of the clerk of the Court of Appeals, paying to the clerk on such filing the sum of twenty-five cents to defray the necessary disbursements incurred by him in carrying out the provisions of the act. The act makes it a misdemeanor for any person to practice as attorney or counselor for another in such court, or in any manner to assume to be an attorney or counselor at law without having been duly admitted as such, and taken and filed the oath required by the act with the clerk of the Court of Appeals. (Laws of 189B, Chap. 165.) The effect of this act, if valid, is to impose a further limitation upon the rights of a newly admitted attorney to practice and to practically disbar such old practitioners as though inadvertence, absence from the state, or otherwise, have failed to file the oatb within the time limited by the act. Persons prohibited from practicing as attorneys. — In addi- tion to the statute before cited, prohibiting all persons who have not been admitted to the bar, or who have been admitted but have failed to register, from practicing law in the courts of record of the state, or in any court in the counties of New York or Kings, the Code provides that a person shall not ask or receive, directly or indirectly, compensation for appearing as attorney in a court or before any magistrate in the city of New York, or make it a business to practice as an attorney in a court or before a magistrate in said city, unless he has been regularly admitted to practice as an attorney or counselor in the courts of record of the state, and makes a violation of the provision 56 Trial Practice. Suspension or removal from office. a misdemeanor, and also makes it a misdemeanor for a judge, justice or magistrate in such city to knowingly allow one not so admitted to practice in his court. (Code Civ. Pro., §§ 63,64.) Judges of the Court of Appeals, justices of the Supreme Court, and county judges and surrogates of counties having a population exceeding one hundred and twenty thousand, are prohibited from practicing as attorneys or counselors in any court of record in this state and from acting as referee. (Const. Art. VI., § 20.) The clerk, deputy clerk or special deputy clerk of a court cannot, during his continuance in office, practice as attorney or counselor in that court (Code Civ. Pro., § 61), and a sheriff, under sheriff, deputy sheriff, sheriff's clerk, constable, coroner, crier or attendant of a court is prohibited, during his continuance in office, from practicing as an attorney or counselor in any court. (Id., § 62.) Suspension or removal from office. — An attorney or coun- selor who is guilty of any deceit, malpractice, crime or misde- meanor, or who is guilty of any fraud or deceit in proceedings by which he was admitted to practice as an attorney or coun- selor of the courts of record of this state, may be suspended from practice or removed from office by the Appellate Division of the Supreme Court. Any person being an attorney and counselor-at-law who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney or counselor-at-law or to be competent to practice law as such. When any attorney and counselor-at-law shall be convicted of a felony, there may be presented to the Appellate Division of the Supreme Court a certified or exemplified copy of the judgment of such convic- tion, and thereupon the name of the person so convicted shall, by the order of the court, be stricken from the roll of attorneys. Upon a reversal of such conviction or pardon by the president of the United States, or the governor of this state, the appellate division shall have power to vacate or modify such order of disbarment. (Code Civ. Pro., § 6y.) The fact that an attorney has been pardoned after conviction for a crime does not annul the act or affect the right of the court to disbar the offender. {Matter of an Attorney, 86 N. Y., 563.) The object of the Attorneys and Counselors at Law. a? Purchase of claims by attorneys. proceeding is not to punish the attorney for the offense, but to purge the profession of an unworthy member. The Code provides that an attorney or counselor who is guilty of any deceit or collusion, or consents to any deceit or collusion with intent to deceive the court or a party forfeits to the party injured by his deceit or collusion treble damages, and is also guilty of a misdemeanor. (Code of Civ. Pro., § 70.) This con- stitutes such professional misconduct as will authorize an order disbarring the attorney. {Matter of Gale, 75 N. Y., 526 ; Matter ^f V , 10 App. Div , 491.) There are a number of prohibitory clauses in the Code a viola- tion of which by an attorney is deemed to be a misdemeanor and sufficient cause for disbarment on conviction. Among these is the provision that an attorney or counselor shall not directly or indirectly buy or be in any manner interested in buying a bond, promissory note, bill of exchange, book debt, or other thing in action, with the intern and for the purpose of bringing an action thereon. (Code of Civ. Pro., § 73.) The aim of the statute is to prevent attorneys from purchasing claims for the express purpose of instituting suits thereon and thus oppressing debtors and making costs. Therefore, the purchase of a claim upon which an action has already been commenced and is then pending does not come within the statute. {Wetmore v. Hegeman, 88 N. Y., 69.) 5o while the purchjise of a judgment with the intent and for the purpose of suing the judgment debtor thereon would be within the prohibition of the statute, the purchase of a judgment for the purpose of enforcing it by execution against the judgment debtor may, at any time within two years from the filing of the judgment roll execute a satisfaction of his client's judgment (Code of Civ. Pro. § 1260); and generally he may and ought to exercise his discretion in all the ordinary occurences which take place in relation to the cause. {Gorham v. Gale, 7 Cow., 739.) Where a judgment is paid to the attorney for the judgment cred- itor, and the debtor is in custody under an execution against the ■person, the attorney has authority to authorize the sheriff to dis- charge him. {Davis v. Boive, 118 N. Y., 55.) An attorney cannot compromise his client's claim, or release the cause of action, or satisfy a judgment in his client's favor with- out full payment, unless by virtue of special authority. {Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; Beers v. Hendrickson, 45 N. Y., 665; Mandeville v. Reynolds, 68 N. Y., 528; Lowman v. Elmira, C. & N. R. R. Co., 85 Hun, 188; Quinn v. Lloyd, 36 How., 378.) An attorney for the defendant cannot withdraw his an- swer and in effect confess that his client has no defense, and leave it to a sheriff's jury to assess damages. {Herbert v. Law- rance, 42 St. Rep., 406.) An attorney has no authority unless expressly conferred to submit a controversy to arbitration. {Stin- erville &" Bloomington Stone Co. v. White, 25 Misc., 314.) In the absence of any authority except such as is implied from the relation of attorney and client, an attorney has power in the -conduct and management of his client's case to make all neces- sary and proper disbursements. But he cannot bind his client by the employment of an expert witness, where the client noti- fies the expert that he will not be responsible for any charges or -expenses he might incur. {Packard v. Stephani, 83 H>un, 197.) The attorneys for the several parties have authority to stipulate for the payment to the referee of a sum in exces.s of, his statu- .tory fee, and to stipulate for the employment of a stenographer Attorneys and Counselors at Law. 33 Attorney's lien. to take testimony upon the reference. {Mark v. City of Buffalo, 2,7 N. Y., 184.) Attorney's lien. — "The compensation of an attorney or coun- selor for his services is governed by agreement, express or im- plied, which is not restrained by law. From the commencement of an action, or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim, or counter- claim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come; and the lien cannot be af- fected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may determine and enforce the lien." (Code of Civ. Fro., § 66.) Originally the section above quoted consisted of the first sen- tence only. In 1879, the legislature added the second sentence except that part providing for a lien in special proceedings. In 1899, the legislature still further amended the section by extend- ing its provisions to special proceedings and adding the last sentence, and provided that the amendment should go into effect September i, 1899. Before this last amendment an attorney had no statutory lien for his services in a special proceeding. {Matter of Lexington Ave., 30 App. Div., 602.) These amendments of Section 66, of the Code, are prospective only and have no effect upon a judgment recovered in an action or a final order made in a special proceeding before the amendments went into effect. {Goodrich v. McDonald, 112 N. Y., 157.) Prior to the amendment of the section in 1879, the attorney could protect his lien only by notice to the judgment debtor, and if such notice was not given, and the judgment was paid to his client, the lien was forever gone, and he had only the client to look to for his compensation. (Id.) Since the amendment above mentioned it has not been necessary for an attorney to give notice of his claim to the other party or his attorney in order to protect his lien for his fees and disbursements upon a judgment in his client's favor, or as the statute now stands, upon the final order in a special proceeding. {Peri v. New York Central R. R. Co., 34 Trial Practice. The costs recovered in an action belong to the attorney. 152 N. Y., 521.) The lien is statutory and all the world must take notice of it. Any one settling with the party without the knowledge of his attorney, does so at his own risk. (Id.; Coster V. Greenpoint Ferry Co., 5 ; Code of Civ. Pro., R. 146 ; 98 N. Y., 660.) The existence of this statutory lien does not stand in the way of a settlement between the parties themselves, or a compromise of their differences. It operates as security; and if the parties enter into a settlement in disregard of the lien and to the prejudice of the plaintiff's attorney, the court will interfere and protect its officer by vacating the satisfaction of the judgment and permitting execution to issue for the enforcement of the judgment to the extent of the lien, or by following the proceeds in the hands of third parties who received them before or after judgment impressed with the lien. {Peri v. New York Cent. R. R. Co., li,2 N. Y., 521; Poole v. Belcha, 131 N. Y., 200; Bailey v. Murphy, 136 N. Y., 50; Lee v. V. 0. Co., 126 N. Y., 579.) The proceeding to enforce the statutory lien of an attorney upon a judgment recovered by his client is not a motion in the action but an independent special proceeding. {Peri v. New York Cent. R. R. Co., 152 N. Y,, 521.) A judgment, consisting exclusively of costs, is for all ordinary legal purposes the property of the attorney. {Matter of Bailey, 31 Hun, 608.) The costs recovered in an action belong to the attorney without any assignment. {Delaney v. Miller, 84 Hun, 244; Tunstall V. Winton, 31 Hun, 2ig, Bevins v. Albro, 86 Hun, 590.) Where the judgment is exclusively for costs, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney. {Marshall v. Meech, 51 N, Y., 140; Matter of Bailey, 31 Hun, 608; Ennis v. Curry, 22 Hun, 584.) Where the costs have been collected by the attor- ney his lien upon them has been reduced to possession and the client cannot insist upon their payment to him in the absence of a special agreement entitling him to receive them. {Matter of Barnes, 140 N. Y., 468.) If the client brings an action against his attorney for the conversion of moneys belonging to the plaintiff which came lawfully into the possession of the attorney and upon which he has a lien for services and disbursements, the plaintiff must show either that the attorney has been paid the Attorneys and Counselors at Law. 35 Change and substitution of attorneys. amount due him, or that payment of that amount has been ten- dered. {Gunning v, Quinn, 8i Hun, 522.) Until the lien of the attorney is asserted in some way the judgment recovered remains the property of the client, and he may deal with it as he pleases so that his attorney is not preju- diced. It will not be presumed that the act of the client will prejudice the attorney's rights. In order to warrant the court in disregarding a settlement and release made in an action it must be shown that to give full effect to them will operate as a fraud upon the attorney or at least to his prejudice by depriving him of his costs or turning him over to an irresponsible client. {Poole V. Belcha, 13T N. Y., 200.) If a settlement has been made col- lusively before judgment for the purpose of defrauding the at- torney out of his costs, the court will permit him to proceed with the suit, and if he is able to establish a right to recover on the cause of action as it originally stood, to permit such recovery to the extent of his costs in the action. If there is an order of dis- continuance in the way the court will set it aside. This is the proper and only remedy of the attorney in such case. {Randall v. Van Wagenen, 115 N. Y., 527.) In addition to the lien upon the fund or judgment before dis- cussed, an attorney has a lien upon all the papers of his client in his possession, by virtue of which he may retain all such papers until his claim for services has been discharged. {Goodrich v. McDonald, 112 N. Y., 157.) Where an attorney is employed to procure a right of way for a railroad corporation, he has a valid lien at common law and by statute upon the muniments of title of the railroad to the lands in question, which can only be diverted by payment. {Hilton Bridge Co. v. N. Y. C. & H. R. R., 84 Hun, 225.) Change and substitution of attorneys. — It frequently hap- pens that between the joinder of issue in an action and its termi- nation circumstances arise rendering a change of attorneys for one of the parties necessary or desirable. Such a contingency arises when the authority of the attorney for one of the parties is termi- nated by the death of his client ; {Adams v. Nellis, 59 How., 385; Lapaugh v. Wilson, 43 Hun, 619 ; Amore v. LaMothe, 5 Abb. N. C, 146; Putnam v. VanBuren, 7 How., 31 ; Austin v. Monroe, 4 3ti Trial Practice. The general rules of practice. Lans., 6"] ;) or where the plaintiff with knowledge of his attorney- has assigned his claim ; {Robinson v. Brennan, 90 N. Y., 208 ;) or where an attorney for one of the parties refuses to act further in the case; {Matter of H , 93 N. Y., 381 ; Tuck v. Man- ning, 53 Hun, 455 ;) or where the attorney for a party has died, been removed, or suspended, or otherwise become disabled to act. (Code of Civ. Pro., § 65.) In the latter case the attorney for the adverse party should serve upon the party whose attorney has died, or become disabled to act, a notice to appoint another attorney, and then, after the expiration of thirty days, if no attor- ney is substituted, should proceed with the case, serving there- after all the requisite notices and papers on the party. All pro- ceedings after service of the notice are stayed for thirty days. {Hickox V. Weaver, 15 Hun, 375 ; Forbes v. Muxlow, 18 Civ. Pro. R., 239; Commercial Bank v. Foltz, 13 App. Div., 603.) The general rules of practice provide that an attorney may be changed by consent of the party and his attorney, or upon the application of the client upon cause shown and upon such terms as may be just, by the order of the court or a judge thereof, but not otherwise. (Rule 10.) An attorney cannot be changed without leave of the court or an order of a judge of the court. {Krekeler v. Thaule, 49 How., 138.) The mere consent of the attorney is not sufficient, nor is it sufficient to file such consent. The change may be made upon the consent of the attorney, but the consent must be filed and an order entered substituting in his place the new attorney, and notice of the order must be served upon the attorney for the adverse party. (Id.; Buckley v. Buckley, 45 St. Rep., 827; Ray V. Harley, 1 1 N. Y., Leg. Obs., 29 ; Parker v. City of Williams- burgh, 13 How., 250.) It is not necesssary to serve the order with the notice. Dor Ion v. Lewis, 7 How., 132 ; Bogardus v. Richt- meyer, 3 Abb., 179.) A new attorney may be substituted on an appeal without an order of the court. {Magnolia Co. v. Sterling- worth Co., 37 App. Div., 366.) In case the attorney of record does not consent to a substitu- tion, the party desiring the change should apply to the court at special term for an order of substitution upon affidavits showing the nature and state of the action, and alleging the payment or readiness to pay all just demands of the attorney for services Attorneys and Counselors at Law. 37 Proceedings on motion for substitution. already rendered and disbursements made in the action, or, if the application is for an unconditional substitution based upon any misconduct of the attorney which would forfeit his claim to compensation for the services rendered, the affidavits should show the facts in relation thereto. Copies of the moving papers with a notice of the motion should be served upon the attorney of record. Upon the hearing of the motion the original attorney may read counter affidavits setting forth such facts as tend to show his rights and equities in the matter. Where the moving papers fail to show any cause for the substitution other than the mere will of the party, the court will not order a substitution of attorneys until the amount of the just demands of the attorney of record for his services and disbursements have been ascertained and paid, or at least secured. (Board of Supervisors v. Broadhead, a,\ How., 411 ; City of Philadelphia v. Postal Tel. Cable Co., i App. Div., 387 ; Matter of Prospect Ave., 85 Hun, 257; Creighton v. Ingersoll, 20 Barb, 541 ; Hoffman v. Van Nostrand, 14 Abb., 331 ; Pierce v. Waters, 10 Weekly Dig., 432.) The court may determine the amount due the attorney if the facts sufficiently appear from the papers read on the motion, or, as is the more usual practice may direct a reference to take proof and report the amount due, and on the coming in and confirmation of the report, may make the order for substitution on such terms as are proper. {Board Supervisors v. Broadhead, 44 How., 411 ; City of Philadelphia v. Postal Tel. Cable Co., i App. Div., 387. If the circumstances of the case are such as to require imme- diate action, the moving party may offer to pay the amount which may be found to be due the attorney upon a reference or otherwise, and file a bond conditioned to that effect, and the court may thereupon order the immediate surrender by the attorney of all papers of his client, grant the substitution asked for, and direct a reference to hear and determine the amount of compensation to be paid. Upon the coming in and confirma- tion of the report, the court may order that the attorney recover the amount due, and direct judgment and execution therefor, or may enforce its order by proceedings in the nature of contempt. {Greenfield -v. Mayor, 28 Hun, 320.) Where it appears upon the hearing of the motion that the 38 Trial Practice. Stipulations between attorneys. attorney of record has forfeited his right to compensation for his services by his own wrongful acts and misconduct, the court will order an unconditional substitution. (Tuck v. Manning, 53 Hun, 455 ; Matter of Prospect Ave., 85 Hun, 257 ; Pierce v. Waters, 10 Weekly Dig., 432.) No reference is needed in that case. An application by the plaintifl for a substitution of attorneys ' should not be denied where there has been a long delay in the ' litigation, and the court should determine whether the substitu- tion should be made on payment of the attorney's fees or unconditionally because of misconduct. {Barkley v. N. Y. C. & H. R. R. Co., 35 App. Div., 167.) The practice upon reference to ascertain the amount due will be considered hereafter. The adverse party has no interest in an application for substi- tution, and has no right to any notice other than the notice of the order granting it. If, however, the papers in the case cannot be obtained by the substituted attorney, he may, on notice, obtain an order directing the attorney for the adverse party to allow an inspection and copy of the pleadings. (Butterfield v. Bennett, 30 St. Rep., 302.) Stipulations between attorneys. — The general rules of practice provide that no private agreement or consent between the parties or their attorneys in respect to the proceedings in a cause shall be binding unless the same shall have been reduced to the form of an order by consent and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. (Rule 1 1.) This rule is of somewhat ancient origin. It grew out of the frequent conflict between attorneys as to agreements made with reference to proceedings in actions, and was intended to relieve the courts from the constant determination of controverted ques- tions of fact with reference to such proceedings. The rule being intended for the protection of the court will be enforced by the courts. (See Broome v. Wellington, i Sandf.,664; Bain v. Thomas, 2 Cai. R., 95; Leese v. Schemerhorn, 3 How,, 63; Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 282; Rust v. Hauselt, 8 Abb. N. Attorneys and Counselors at Law. 39 Limiting the scope of stipulations. C, 148 ; Bradford^. Downs, 25 App. Div., 581.) But while under the rule an oral stipulation is not binding, and will not be carried into effect by the court, still the court will not permit a party to be misled, deceived, or defrauded by means of such stipulation, and in a proper .case where it has been acted upon, will not permit a party making it to retreat and take advantage of the acts or omissions of his adversary thereby induced. {Mutual Life Ins. Co. V. O'Donnell, 146 N. Y., 275; Peoples. Stephens, $2 N.Y., 306, 310; Gat/lard V. Smart, 6 Cow. i ^S^; Turner v. Burrows, i Hill, 627; Montgomery v. Ellis, 6 How., 326.) To such cases the rule does not apply. (Id.) Neither does the rule apply to stipulations made in open court touching the subject matter of the suit and relating to its conduct and proceedings, nor to oral agreements made in open court upon a trial before a referee. {Staples v. Parker, 41 Barb., 648 ; Slaven v. Germain, 64 Hun, 506; Lennon v. Smith, 47 St. Rep., 483; Banks V. American Tract Society, 4 Sandf. Ch., 438; Ballou v. Parsons, 55 N. Y., 673; Livingston v. Gidney, 25 How., i. Great care should be exercised by attorneys in entering into stipulations in writing as they frequently prove unexpectedly far reaching in their operation and effect. Stipulations entered into willingly upon a trial may prove upon a second trial, under changed conditions, exceedingly vexatious. Where the parties or their attorneys enter into a written stipulation with respect to the facts in a case for the purpose of evidence, and it is not expressly limited in respect to time or confined in terms to some particular purpose or occasion, but is general, it stands in the case for all purposes until the litigation is ended, unless the court upon application should relieve either or both parties from its operation. {Hine v. New York Elevated R. R. Co., 149 N. Y., 154; Clason V. Baldwin, 152 N. Y,, 204; Converse v. Sickles, 16 App. Div., 49 ; Herbst v. Vacuum Oil Co., 68 Hun, 222 ; Owen v. Cawley, 36 N. Y., 600.) A stipulation that evidence taken upon another trial shall be read at a subsequent trial does not give to either party a right to objections and exceptions to rulings taken upon the prior trial. {Ryan v. Mayor, 7 App. Div., 336; Carrall v. New York Elevated R. R. Co., 14 App. Div., 278.) No definite rule can be laid down as to the cases in v^ich a court on application for that purpose will relieve a party from a 40 Trial Practice. Clerks. Stipulation. Each case depetids upon its own peculiar facts and equities and will be decided with reference theieto. The court has the power in a proper case at the instance of a party to set aside stipulations entered into between attorneys. {Milbankv. Jones, ^2 St. Rep., 692; Barry v. Mutual Life Ins. Co., 53 N. Y., 536.) Agreements and stipulations made between the parties to a pending action and relating to its prosecution or discontinuance, are regarded as specially within the supervision and control of the court, and a wide discretion is exercised in relieving parties from such agreements if only both parties can be restored to the same condition as when the agreement was made. It is not necessary in such case to show fraud, deceit or mutual mistake, overreaching or undue influence. It is sufificient if it appears that either party has inadvertently, unadvisedly or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action and in so doing may work to his prejudice. (Van Nuys v. Titsworth, 57 Hun, 5; Becker v. Lament, 15 How., 23.) SECTION VIII. Clerks. The word "clerk " as used in the Code of Civil Procedure signi- fies the clerk of the court wherein the action or special proceed- ing is brought or wherein or by whose authority the act is to be done which is referred to in the provision in which it is used. If the action or special proceeding is brought, or the act is to be done, in or by the authority of the Supreme Court, it signifies the clerk of the county wherein the action or special proceeding is triable or the act is to be done. (Code of Civ. Pro., § 3243.) The clerk of the Court of Appeals is appointed by that court by an order entered in its minutes and may be removed in the same manner. (Code of Civ. Pro., § 198.) He is required to keep his office at the seat of government (Const. Art. VI., § 19); to subscribe and file the constitutional oath of office: a id to execute and file a bond conditioned for the faithful performance of the duties of his office. (Code of Civ. Pro., § 1 19.) The clerk may appoint a deputy, and with the approval of a majority of the Clerks. 41 Appointment, removal and duties. judges of the court may employ as many assistants in his ofBce as are necessary, one of whom he may appoint special deputy clerk. (Id., §§ 200, 201.) The justices of the Appellate Division of the Supreme Court in each department are authorized to appoint or remove a clerk and to designate the place where he shall keep his office. (Const. Art. VI., § 19.) The presiding justice of the fourth department, with the approval of the other justices of the department, may appoint and remove an assistant to the clerk of that division. Neither such clerk nor his assistant can charge any fee for any official service rendered by him. (Code of Civ. Pro., § 221.) The clerks of the several counties are clerks of the Supreme Court. (Const. Art. VI,, § 19 ) The Court of Claims is authorized to appoint, and at pleasure remove, a clerk and a deputy clerk, to perform such duties as the court may prescribe. The clerk is required to make and file a bond for the faithful performance of his duties. (Code of Civ. Pro., § 266.) The Clerk of the City Court of the City of New York is ap- pointed by the justices of that court or by a majority of them, and has authority to appoint deputy clerks, special deputy clerks, stenographers, an official interpreter, and as many attendants of the court as he deems necessary not exceeding thirteen. (Id., §§ 328-3350 The general rules of practice prescribe the books to be kept by the clerks of courts, (Rule 7,) and prohibit the entry and docket- ing of judgments by them at any time other than the hours during which by law they are required to keep open their respec- tive offices for the transaction of business. (Rule 8.) Except in the counties of New York and Kings, cleiks of counties and of courts of record must keep open their offices for the transaction of business every day in the year, except Sundays and other days and half days declared by law to be holidays or half holidays, and between March thirty-first and October first, from eight o'clock in the forenoon to five o'clock in the afternoon, and between September thirtieth and April first from nine o'clock in the forenoon to five o'clock in the afternoon. In the counties of New York and Kings the clerks' offices must remain open during the months of July and August in each year from nine o'clock in 43 Trial Practice. SherifE, Crier, and Attendants. the forenoon to two in the afternoon, and during the other months from nine o'clock in the forenoon to four o'clock in the afternoon. (Laws of 1895, Chap. 961.) The duties which clerks of courts of record are called upon to perform in respect to actions pending therein are so numerous and widely separated and yet so generally uniform in their char- acter that nothing would be gained by an attempt at their enu- meration. These duties may commence before the commence- ment of an action by the service of a summons and may termi- nate only with the last proceeding after judgment on appeal. For any wilful neglect or violation of a duty by which a right or remedy of a party may be defeated, impaired, impeded or preju- diced, the clerk is liable to punishment by fine or imprisonment, or both. (Code of Civ. Pro., § 14.) Furthermore, where the appointing power is the court the power of removal is vested in the same tribunal and will be exercised in a proper case. The law does not permit a party to be prejudiced by any default or negligence of the clerk by which the adverse party has not been prejudiced. (Code of Civ. Pro., §§ 721, 722.) The clerk, deputy-clerk, or special deputy-clerk of a court is prohibited from practicing as an attorney or counselor in that court during his continuance in office. (Id., § 61.) And no person holding the office of clerk, deputy-clerk, special deputy- clerk, or assistant in the clerk's ofifice of a court of record, within the county of New York, can be appointed by any court or judge a referee, receiver or commissioner, except by the written con- sent of all the parties to the action or special proceeding other than the parties in default for failure to appear to plead. (Id., § 90.) An appointment in violation of this statute is an irregu- larity merely. {Moore v. Taylor, 40 Hun, 56.) SECTION IX. Sheriff, Crier, and Attendants. The duties of a sheriff in respect to the courts of which he is an officer are manifold. He may execute the mandates of the court, and, if necessary, may call the power of the county to his assistance, and if that is not sufficient, may call upon the governor of the state for the necessary military force. (Code of Civ. Pro., §§ 102, 104, 107.) Sheriff, Crier, and Attendants. 43 Duties. Before the sitting of the court, he notifies the deputy sherififs and constables to appear and attend the term (Id. § 97); he assists at the drawing of trial jurors (Id., § 1044), and notifies them to attend the term (Id., § 1048); in case the judge fails to appear at the time and place appointed for holding a term, the sheriff may open and adjourn the term (Id., §§ 35, 36); in case the board of supervisors have failed to provide the court with proper and convenient rooms and furniture and fuel, lights and stationery, he may furnish the same at the expense of his county {Id., § 31); and during the sittings of the court, attends, preserves order, acts as crier when so required, assigns officers to attend juries, and acts generally as the executive officer of the ■court. A sheriff, under sheriff, deputy sheriff, sheriff's clerk, constable, ■coroner, crier or attendant of a court cannot practice as attorney or counselor in any court during his continuance in office. (Id., § 62.) The county judge of each county, except Kings and Erie, appoints the crier for courts of record held in his county. (Id., § 91.) A sheriff, deputy sheriff or constable attending a term of a court of record must, when required by the court, act as crier therein, without additional compensation. The principal duties of the crier are to open and close the •daily sittings of the court, which duties could be as well and more economically performed by any of the officers above mentioned. The other attendants of the court perform such duties as are assigned them by the court or sheriff. SECTION X. Stenographers. A stenographer is an officer of the court by or for which he is appointed. He must be skilled in his art, and before entering upon the discharge of his duties must subscribe the constitu- tional oath of office and file it in the proper office. (Code of Civ. Pro., § 82.) The stenographer, under the direction of the judge presiding at, or holding the term or sitting which he attends, must take 44 Trial Practice. Stenographers. full stenographic notes of the testimony and of all other proceed- ings in each cause tried or heard thereat except when the judge dispenses with his services in a particular cause or with respect to a portion of the proceedings therein. The court, or a judge thereof, may in his or its discretion upon or without an applica- tion for that purpose, make an order directing the stenographer to file with the clerk forthwith or within a specified time, the original stenographic notes taken upon a trial or hearing, where- upon the stenographer must file the same accordingly. The stenographer must fully note each ruling or decision of the pre- siding judge, and when the trial is by jury each and every remark or comment of such judge during the trial when requested so to da by either party, together with each and every exception taken to any such ruling, decision, remark or comment by or on behalf of any party to the action. After any such ruling, decision, re- mark or comment has been made the same shall not be altered or amended by the stenographer without the consent of the party excepting thereto, whether the same is made during the charge of the court to the jury, or at any other time during the trial. The stenographer shall upon payment of his fees allowed by law therefor furnish a certified transcript of the whole or any part of his minutes in any case reported by him to any party to the action requiring the same. (Id., § 83.) The original stenographic notes taken by the stenographer are a part of the proceedings in the cause and unless they are filed pursuant to an order made by the court or judge they must be carefully preserved by the stenographer for two years after the trial or hearing. If the stenographer dies, or his office becomes vacant before the expiration of that time, they must be delivered to his successor in office to be held by him with like effect as if they had been taken by him. They must be written out at length by the stenographer if a judge of the court so directs or if the stenographer is required so to do by a person entitled to a written copy. (Id,, § 84.) The provisions as to filing apply to the notes taken by a stenographer on a reference where his fees have been taxed as a part of the disbursements in the action. {Horrocks v. Thompson, 27 Hun, 144.) The statute requires the attending stenographer on request,, without charge and with all reasonable diligence, to furnish the Stenographers. 45 Stenographer to furnish judge with a copy written from his notes. judge holding the term or sitting with a copy written out from his notes of all or a part of the testimony and proceedings upon a trial or hearing at that term or sitting. (Code of Civ. Pro., § 85; see Id., § 251.) On payment of his fees therefor he must furnish a copy so written out to a party or his attorney. (Id., §86.) CHAPTER II. THE ISSUES IN CIVIL ACTIONS AND THE MODE OF TRIAL THEREOF. SECTION I. Civil Actions and the Rules of Procedure Therein. The term "civil action," as used in the Code of Civil Pro- cedure, signifies an ordinary prosecution in a court of justice by one party against another for the enforcement or protection of a right, or the redress or prevention of a wrong. (Code Civ. Pro., §§ 3333-3337-) The mode of conducting this prosecution is governed by the rules of practice embraced in the act known as the Code of Civil Procedure ; by the general rules of practice established by a convention of justices assigned to the Appellate Division of the Supreme Court under the authority of that act (Code Civ. Pro. § 17); by statutes relating to practice unrepealed (See Levy v. Loeb, 5 Abb. N. C, 157, 165); and in cases where no provision is made by statute or the general rules of practice, by the custom- ary practice as it formerly existed in the Court of Chancery or Supreme Court in cases not provided for by statute or the written rules of those courts. (General Rule, 84; Miller v. Stettiner, 7 Bosw., 695, 22 How., 518; Mutual Life Ins. Co. v Bigler, 79 N. Y., 568, 570; Granger v. Craig, 85 N. Y., 619; Skinner v. Hannan, 81 Hun, 376.) In addition to this, the appellate division in each department and the various courts of record are authorized to make such further rules in regard to the transaction of business before them respectively, not inconsistent with the general rules of practice, as they in their discretion may deem necessary. (Gen- eral Rule, 83; Code Civ. Pro., § 323.) In the exercise of this authority special rules have from time to time been adopted. Rules of practice, from whatever source derived, are generally mere rules of convenience. They are often arbitrary and founded Civil Actions and the Rules of Procedure Therein. 47 Most of the provisions of the Code are modal. on no higher authority or principle than the necessity of a uniform system of procedure in our courts to facilitate the despatch of business. Most of the provisions of the Code are modal and intended for the regulation of the formal procedure in the action and are no more sacred than any other rules of practice. {McCoun V. New York Cent. & H. R. R. Co., 50 N. Y., 176.) The usage of courts may confer rights upon parties and impose obli- gations upon the courts as sacred and imperative as written rules. {People v. Superior Court of New York, 5 Wend., 114, 126.) The Code expressly confers upon courts of record the power to make new process and forms of proceedings necessary to carry into effect the powers and jurisdiction possessed by it. (Code Civ. Pro., § 7.) This power is inherent ; and presumptively whatever judicial procedure is essential to enable courts to exercise their function is authorized. {McQuigan v. D. L. & W. R. R. Co., 129 N. Y., 50; Skinner v. Hannan, 81 Hun, 376.) The Code also gives to the courts and judges in many cases discretionary powers in the exercise of which they may grant or withhold a remedy. Thus an apparent uncer- tainty is imported into the practice. But the uncertainty is more apparent than real. As questions of practice arise which are left to the discretion of the courts a line of decisions is formed which become precedents, establishing the rules by v/hich the exercise of discretion has been guided before and should always be guided. {Fisher v. Gould, 81 N. Y., 228.) The discretion of a judge is not a capricious action, but it is to be directed by reason and is to walk in the path where one has been beaten. (Id.) No court has a right arbitrarily to change its established course of proceedings in relation to a particular case. {People v. Superior Court of New York, 5 Wend., 114.) So to the doctrine that the courts have inherent jurisdiction to mould the proceedings to meet new conditions and exigencies has its limitations. They cannot under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property. They may apply existing rules to new circumstances, but cannot create remedies unknown to the common law or institute a pro- cedure not according to the course of the common law. {Mc- Quigan v. D. L. & W. R. R. Co., 129 N. Y., 50.) A rule of court in order to be valid must be consistent with 48 Trial Practice. General rules of practice. the Code. {Glenneyv. Stedwell, 64 N. Y., 120; Rice v. Ehle, 55 N. Y., 518 ; Smith v. Danzig, 64 How., 320 ; Schank v. Conover, 56 How., 437 ; Palmer v. Phcenix Ins. Co., 22 Hun, 224 ; French v. Powers, 80 N. Y., 146.) The power conferred upon the conven- tion of justices assigned to the appellate division of the Supreme Court is to establish rules of practice not inconsistent with the Code of Civil Procedure, which shall be binding upon all the courts in this state, and all the judges and justices thereof, except the court for the trial of impeachments and the Court of Appeals. (Code of Civ. Pro., § 17.) The evident purpose of the law makers was not to enable the convention of justices to alter, modify or annul any rule of practice established by the Code, but merely to make such others, not therein provided for, as should be deemed necessary and should be consistent and in harmony with the provisions of that act. {Gormerly v. McGlynn, 84 N.Y., 284.) These rules when made in harmony with the Code have all the force and effect of statutes. (_Peoplev. Nichols, 18 Hun, 530; Matter of Moore, 108 N. Y., 280.) The courts have no more right to disregard the rules so made than they have to disregard the statutes of the state. {^Ives v. Ives, 80 Hun, 136.) A rule which is merely directory in its provisions may be disregarded or obviated by allowing the act to be performed to be done nunc pro tunc ; not so if it is mandatory. {Matter of Moore, 108 N. Y., 280; Martine v. Lowensteiii, 68 N. Y., 456; Clark v. Brooks, 26 How., 285.) Where the court is asked to depart from its customary modes of procedure, and in so doing infringe its general rules of practice, the application will be denied. (Batter- shall v. Davis. 23 How. 383.) It is peculiarly the province of the body framing rules to interpret its own enactments. {Evans v. Backer, lOi N. Y., 289.) The rules of construction applicable to statutes are appli- cable to the rules of practice established by the courts, and amendments of the rules are analagous to amendments of the statutes and should receive the same construction. {^Matter of Warde, 154 N. Y., 342.) The Issues in a Civil Action. 49 Issues of law and of fact. SECTION II. The Issues in a Civil Action. In the following pages it will be assumed that an action has been properly commenced in one of the courts of record of this state ; that the proper parties are before the court : that an issue of some kind has been joined upon the pleadings ; that each party has performed every act, prior to the joinder of issue, required by the Code or rules of practice to entitle him to insist upon all his rights ; and that nothing remains to be done except to prepare for and conduct the trial of the issues arising upon the pleadings, and such other issues as arise incidentally upon such trial. An i.ssue arises whenever a fact or a conclusion of law is main- tained by one party and controverted by the other. (Code of Civ. Pro., § 963.) Issues are of two kinds, of law and of fact. (Id.) Issues of law or of fact, not contained in the pleadings, may arise at every stage of the trial. Whenever there is a ruling by the judge on the admission or rejection of evidence which is excepted to, a question of law arises, and as to that the parties may be said to be at issue. So new questions of fact, not con- tained in the pleadings, may arise in the progress of a cause, and upon these the parties may be at issue. (See Place v. Butternuts Woolen and Cotton Manuf. Co., 28 How. 184.) But these issues are merely collateral to the main issues raised by the pleadings. In respect to the latter, an issue of law arises only upon a demurrer. (Code of Civ. Pro., § 964.) An issue of fact arises in either of the following cases : 1. Upon adenial, contained in the answer, of a material allega- tion of the complaint, or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in a reply, with respect to a material allegation of the answer. 3. Upon a material allegation of new matter, contained in the answer not requiring a reply, unless an issue of law is joined thereupon. 4 00 I'RIAL FrACTICE. No issue as to an allegation not controverted. 4. Upon a material allegation of new matter, contained in the reply, unless an issue of law is joined thereupon. (Id.) There can be no issue as to an allegation not controverted. The Code expressly provides that each material allegation of the complaint not controverted by the answer, and each material allegation of new matter in the answer, not contro- verted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. (Code of Civ. Pro., § 522). As to allegations thus impliedly admitted, no issue can arise, nor can evidence be received upon the trial of any fact inconsistent with the admission. [Fleischmann v. Stern, 90 N. Y. no; Tell & Beyer, 38 id. 161 ; S. C, 6 Trans. App. 142; Dunham v. Cudlipp, 94 N. Y. 129: Alexander Lumber Co. V. Abrahams, 19 Misc. 425 ; Martin v. Rochester German Ins. Co., 86 Hun, 35; Beard v. Tilghman, 66 Hun, 12; Paige v. Willet, 38 N. Y. 28.) But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is deemed to be controverted by the adverse party, by traverse or avoidance as the case requires. (Code of Civ. Pro., § 522.) In such case the allegations of new matter are put in issue by the statute as effectually as by an express denial. But the issue so raised is not merely as to the truth or falsity of the new matter alleged, as would be the case if these allegations were simply denied. The adverse party may prove upon the trial any fact which disproves or avoids the new matter alleged. {Johnson v. White, 6 Hun, 587.) Issues of fact, under the Code, can arise only upon material allegations. (See Ante, p. 49.) An allegation is not to be deemed material unless an issue taken upon it, whether of law or fact, will decide the cause so far as relates to the particular cause of action to which the allegation refers. (See Newman v. Otto, 4 Sandf. 668 ; Fry v. Bennett, 5 id. 54; Sands V. St. John, 36 Barb. 628: 5. C, 23 How. i.;o; Oechs v. Cook, 3 Duer, 161 ; Connors v. Meir, 2 E. D.Smith, 314; Stafford Pavement Co. v. Monheimer, 9 Jones & Sp. 184.) Thus, as a general rule, no issue can arise upon an allegation of special damage (Thompson v. Lumley, 7 Daly, 74 ; Baldwin v. N. Y., etc., Nav. Co., 4 id. 315 ; Smith v. Thomas, 2 B. N. C. 372; 2 Scott, 546. Welby V. Piston, 8 M. Gr. & Scott, 142 ; Robinson v. Mar- chant, 7 Q. B. 918. And see Schnaderbeck v. Worth, 8 Abb. 37; The Issues in a Civil Action. 51 Issuable facts. Gilbert v. Rounds, 14 How. 46: Latie v. Gilbert, 9 id. 150), nor upon an allegation of circumstances in nnitigation of damages {Newman v. Otto, 4 Sandf. 668), nor upon an allegation of the amount of damages in an action brought to recover unliqui- dated damages {Raymond v. Traffarn, 12 Abb. 52; Connors v. Meir, 2 E. D. Smith, 314), nor upon an allegation of time, place or value {Davison v. Powell, 16 How. 467 ; Coimors v. Meir, 2 E. D. Smith, 314), nor upon an allegation of a conclusion of law. {Strauss v. Trotter, 6 Misc. T/; Lamb v. Hirschberg, i Misc. 108. See McKyringv. Bull, 16 N. Y. 297; Drake v. Cockroft, 10 How. 377; 5. C, I Abb. 203; 4 E. D. Smith, 34. But see Quinn v. Lloyd, 41 N. Y. 349.) But there may be cases where time, value, special damage, etc., may be of the gist of the action and, therefore, issuable facts. An allegation must be controverted by the pleading of the adverse party, or by operation of law, in order to raise an issue. An allegation of an answer merely setting forth a version of a transaction in some respects inconsistent with the allegation of the transaction contained in the complaint, does not put the latter in issue. {Fleischmann v. Stern, 90 N. Y. 1 10; West v. American Exchange Bank, 44 Barb. 175; Marston v. Sweet, 66 N. Y. 206; Wood V. Whiting, 21 Barb. 190; Swinburne v. Stock- well, 58 How. 312; Berry v. Rowley, 11 App. Div. 396; Marx v. Gross, 2 Misc. 511.) The question as to whether or not an issue, authorized by the Code, arises on the pleadings is one of importance, as upon its determination would depend the further question whether the cause shall be formally tried or whether an application shall hv made for judgment on the pleadings. The objection that a cause was tried outside the pleadings will not be fatal on appeal in the absence of some specific objection to that course taken on the trial. {Fanners Loan & Trust Co. v. Housatonic R. R, Co., 152 N. Y. 251; Frmr v. Swcet, siS K. Y. 454-) Trial Practice. Mode of disposing of tlie issues raised by the p'eadmgs. SECTIOIN" in. Mode of DisrosiNG of thk Issues eaised by the Pleadings. Every issue arising on the pleadings, whether of law or of fact, must be tried as prescribed by chapter 10 of the Code of Civil Pro- cedure, unless it k disposed of as prescribed by chapter 6 of that act (Code of Civ. Pro., § 965), with the qualification that an issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, need not be tried. (Id., § 975.) The statute recognizes a disposition of the issues by a formal trial, as that term is ordinarily understood, and by the more summary method of an application for judgment on the pleadings, or by mo- tion to strike out the pleading by which the issue is raised. Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff's motion, may, in its discretion, order that the action be severed ; that ■judgment be entered for the plaintiff for the part so admitted, and, if the plaintiff so elect, that the action be continued with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. (Code of Civ. Pro., § 511.) But this mode of procedure disposes of no issue, unless the plaintifE does not elect to continue the action. So in an action on contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer, does not deny the plaintiff's claim, but sets up a counter-claim amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counter- claim, may take judgment for the excess, as upon a default, for want of an answer. (Id., § 512.) This procedure disposes of no issue, although it disposes of the action. So a defendant may have judg- ment upon a counter-claim, to which the plaintiff has neglected to demur or reply (Id., § 515), or upon an answer containing new matter, constituting a defense by way of avoidance, to which the plaintiff has failed to reply, after a reply has been directed by ihe court. (Id., § 516.) No issue is disposed of in either case. An unverified pleading may, in a proper case, be treated as a nullity and an issue avoided (Id., §§ 527, 528), or the issues may be modified or changed by amendment within certain limits (Id. §§ 542, 723), or new issues may be brought in by way of a supple- Mode of Disposing of Issues Raised by Pleadings. Issues of law and fact. mental pleading. (Id., § 544.) So a sham answer or dciensc may be stricken out by the court on motion (Id., § 53S) ; or, if a demur- rer, answer or reply is frivolous, the party prejudiced thereby may on motion, and upon proper notice to the adverse party, obtain judg" ment upon the pleadings. (Id., § 537.) To this extent only can the issues raised by the pleadings be disposed of without tlie trial prescribed by chapter 10 of the Code of Civil Procedure. (Id., § 965.) The proceeding above mentioned, by which judgment may be obtained on a frivolous pleading, is not a trial of an issue. {^Rochester City Bank v. Rajpelye, 12 How. 26 ; Manjuuee v. Br'uj- ham, id. 399 ; Butchers and Drovers' Banh v. Jacobson. 22 id 470; Bell v. Noah, 24 id. 478; Gould v. GarpcnUr, 7 id. 97; Small V. Ludlow, 1 Hilt. 307 ; Bernhajxl \-.Kapp, LJ Abb. [N. S.] 342. But see Rill v. Simpson, id. 343; Lawrence v. Davis, 7 How. 354 ; Roherts v. Morrison, id. 396 ; Pratt v. Allen, 19 id. 450.) A trial was defined by the old Code ;is " the judicial examination of the issues between the parties, whether they be issues of law or fact." (Code of Pro., § 252.) The pres.-nt Code, makes no attempt to define a trial, but leaves the meaning of tlie term to be determined by usage and judicial interpretation; and while the definition given by the old Code is sufficieritly broad to embrace the examination of issues not contained iu the pleadin^js (See Place ^ . Butternuts Woolen, etc., Manuf. Cc, 28 How. 184, 18C; Frear v. Sweet, 118 N. Y. 454; Farmers' Loan & Trust Co. v. Housaionic R. R. Co., 152 N. Y. 251), and in that i expect is not applicable to the trial prescribed by chapter 10 of the present Code, it is in other respects sufficiently accurate. Issues of law are always tried by the couri or by a referc.. (Oodj of Civ. Pro., § 969.) Whether the issues of fact in an action shaH be tried by a jury, by the court or by a referee, or whether some of the issues shall be tried by a jury and the remainder by the court or by a referee, may depend upon the nature of the action or of the issues, or upon the election of the parties, or upon the discretion of the court, as will be hereafter more fully noticed. As a general rule, where an issue of law and an issue of fact arifie in the same action, the issue of law must be first disposed of (Id., § 966), but the court may, in its discretion, direct a change in the 54 Trial Practice. Disposition of issues between co defendants. order of the disposition of the issues, or direct a separate trial be- tween the plaintiff and one or more defendants of some or all of the issues of fact, or one trial of some or all of the issues of law. (Id., § 967.) While the court has power to direct a separate trial be- tween the plaintiff and one or more defendants, it will not, as a general rule, direct a separate trial, at different terms, of tlie issues of law arising on separate demurrers interposed by the several de- fendants. (See George v. Grant, 56 How. 2ii.) All such issues shouli be tried at the same term. (Id.) The direction for a change in the order of the disposition of the issues, or for a separate trial between the plaintiff and one or more of tlie defendants, may be giTOii, in an order, made upon notice; or, where a previous appli- cation for such order has not been made and denied, and the issues are regularly u])on the calendar for trial, it may be given by the judge holding the term, either with or without the entry of an order. (Code of Civ. Pro., § 967.) Where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action, brought by the defendant against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. 'Code of Civ. Pro., § 974.) SECTION IV. Disposition of Issues betweks' Co-Defendants. It is frequently observed in practice, that the mere determination of the issues between the plaintiff and the several defendants in an action, with the view of merely determining the plaintiff's rights therein, will not give that complete relief which the law intends sliall result frotc. a formal trial ; tliat issues between co-defendants, growing out of" conflicting rights or interests in the subject-matter of the action, require judicial examination in order that exact justice may be done to all the parties; and that the plaintiff's recovery or relief obtained, while full and complete as the ease demands, should be so appor- tioned or adjusted as respects the several defendants that no vu justice shall be done to either. The Code, therefore, permits, with certain limitations, the determination of issues between co-defend- ants. It provides that where the judgment may determine the Disposition of Issues Betwekn Co-Defendants. 55 In an action of partition. ultimate rights of two or more defendants, as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants to he affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not appeared therein by attorney ; but that the controversy between tlie defendants sliall not delay a judgment to which the plaintiff is en- titled, unless the court otherwise directs. (Code of Civ. Pro., § 521.) When the proper service has been made and the trial had, the judgment rendered may determine the ultimate rights of the parties on the same side, as between themselves ; and it may grant to a defendant any affirmative relief to wliieh ho is entitled. (Code oi Civ. Pro., § 1204.) A judgment in favor of one defendant against another cannot be entered upon the default of the latter unless he has had notice and an opportunity to defend as against his co-defendant. {JDstrander v. Hart, 130 N. Y. 406; Edwards v. Woodruff, 90 N. Y. 396.) Under the old Code it was held that the determination of the ultimate rights of parties as between themselves should be con- fined to parties actually litigating before the court [Norbury v, Seeley, 4 How. 73); that defendants could have relief against each other, only in a case in which they had appeared and answered in reference to the claim made against them by the plaintiff, and as part of the adjustment of that claim ; and that the relief must be based upon the facts involved in, and brought out by the litigation and investigation of that claim. {Kay v. Whittaker, 44 N. Y. 565; Lansings. Hadsall, 26 Hun, 619; Stephens v. Hall, 2 Rob. 674.) The present Code does not auth- orize defendants to litigate as between themselves independent cross-demands not connected with the cause of action set forth in the complaint. (New York Life Ins. & Trust Co. v. Cuthbert, 87 Hun, 339. Smith v. Hilton, 50 Hun, 236.) These provisions of the Code are simply declaratory of the pre- existing practice in Chancery. (Jones v. Grant, 10 Paige, 348). In an action of partition 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 5fi Trial Practice. When a jury trial is a matter of right. or interest of any defendant, as stated in his answer, may be con- troverted by the answer of any other defendant. The defendant controverting the title or interest of a co-defendant must demand in his answer that the rights in controversy be determined in the action, and must serve a copy of his answer upon the attorney for each of the defendants to be effected by the determination as required by section 521 of the Code, above cited. The issue thus joined must be tried and determined in the action. (Code of Civ. Pro , § 1543.) SECTION V. When a Jury Trial is a Matter of Right. An issue of fact in an action in which the complaint demands judgment for a sum of money only, or in an action of ejectment, for dower, for waste, for a nuisance, or to recover a chattel, must be tried by a jury, unless a jury trial is waived, or a reference is directed. (Code of Civ. Pro., § 968.) The question as to what will amount to a waiver of a trial by jury, and in what cases the court may direct a reference without the consent of all parties to the action, will be considered in subsequent sections. Where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not above specified, he may apply to the court, upon notice, for an order directing all the questions arising upon these issues to be distinctly and plainly stated for trial accordingly; and upon the hearing of the application the court must cause the issues, as to which the party is entitled to a jury trial, to be dis- tinctly and plainly stated. (Code of Civ. Pro., § 970.) The practice upon this motion, and the proceedings subsequent to the entry of the order will be considered hereafter. It will be seen that in a certain class of actions a jury trial is a matter of course, to be had without any application to the court; and in others, although a constitutional legal right, can be com- pelled only by application to the court for an order directing such trial. Among the actions specified in section 96S of the Code of Civil Procedure wherein a jury trial is a matter of course without ap- plication to the court is an action for a nuisance. The action re- ferred to in this section is the common-law action of nuisance; When a Jury Trial is a Matter of Right. Where both legal and equitable relief is sought. either an action on the case for damages or an action to abate a nuisance. {Cogswell v. N. Y., N. H. &■ H. R. R. Co. 105 N. Y. 319; Goldschmidt V. New York Steam Ci?. 7 App. Div. 317.) In such an action a trial by jury is a m^tter of right, {Hudson v. Caryl, 44 N. Y. 553; Dorr v. Dansvillc Gas-Light Co. 18 Hun, 276; Lefrois v. County of Monroe, 88 Hun, 109), and the defendant cannot be deprived of that right by the fact that the plaintiff in his complaint also demands equitable relief. (Id.) But a plain- tiff bringing an equitable action to restrain the continuance of a nuisance, or bringing a common-law action of nuisance coupled with a demand for equitable relief cannot claim a jury trial as a matter of right. {Cogswell \. N. Y.. N. H. & H. R. R. Co. 105. N. Y. 319; Goldschmidt v. Neiv York Steam Co. 7 App. Div. 317.) In the one case there is a waiver; in the other there is not. An action brought by the people to vacate the charter or annul the existence of a corporation is triable of course and of right by a jury without procuring any order therefor. (Code of Civ. Pro.^ § 1800.) An issue of fact joined in an action for partition is triable by a jury; and unless the court directs the issues to be stated as prescribed in section 970, above cited, the issues may be tried upon the pleadings. (Cade of Civ. Pro., § 1544. See Hewlett V. Wood, 62 N. Y. 75; Jones v. Jones, 120 N. Y. 589 ) The issues of fact to which this provision relates are such only as involve the maintenance of the action. It has no application unless some de- fense is interposed which, if successful, would prevent any parti- tion. Where both parties pray for partition and there is no dispute as to their proportionate interests and the only matters in controversy relate to the amounts with which the respective shares are chargeable, neither party is entitled to a jury trial as a matter of right. {Brown v. Brown, 52 Hun, 532.) The issue in an action to determine the validity of a will which has been admitted to probate is confined to the question whether the writing produced is or is not the last will and codicil of the testator, or either, and must be tried by a jury. (Code of Civ. Pro., § 2653a. See Hawke v. Hawke, 82 Hun, 439.) The defendant in an action to determine a claim to real pro- perty under Section 1638 of the Code of Civil Procedure is enti- tled to a jury trial if he alleges facts upon which he bases a claim in his an=wer that he shall be adjudged to have an estate in the 58 Trial Practice. Common law actions. premises, but not Otherwise. (King' v. Ross, 2S App. Div. 371) When a mortgagee brings an action upon a covenant in a deed against the grantees of the mortgagor, to recover the deficiency arising on the foreclosure of a mortgage, which they had in their deed covenanted and agreed to pay as part of the purchase-price, and demands a money judgment, the action is triable by a jury. (Hand V. Kennedy, 83 N. Y. 149; affirming 5'. C, 13 Jones & Sp. 385.) But the fact that in an action to foreclose a mortgage a «ale of the mortgaged premises may result in a deficiency for which a money judgment could be docketed against the defend- ant does not entitle the defendant to a jury trial. (^Carroll v. Deimel, 95 N. Y. 252.) The Constitution of this State provides that " The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever; but a jury trial maybe waived by the parties in all civil cases in the manner to be prescribed by law." (Const. Art. I, § 2.) At the time of the adoption of the Constitution all cases at common law were tried by a jury, and it foUowsthat any party has the right to have any such action so tried at the pres- ent time. {Davis v. Morris, 36' N. Y. S69.) An action to recover damages for the tortious conversion of property {Lewis v. Varjium, 12 Abb. 305 ; Hennequin v. Butterfield, 11 Jones & Sp. 411, 422); an action for a statutory penalty {Fire Department of N. Y. V. Harrison, 2 Hilt. 455 ; 5. C, 17 How. 273 ; 18 id. 181 ; 9 Abb. i); or an action in the nature of a guo warranto, brought by the attorney-general in the name of the people to try title to a corporate office to which there are several claimants {People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161;) or an action to recover back usurious interest paid on loans made to the plaintiff, or to his assignor {Wheelock v. Lee, 74 N. Y. 495); and any and all common-law actions sounding in tort, and any and all common- law actions arising on contract, except where the examination of a long account is involved, must be tried by a jury, unless a jury trial is waived by the parties in some manner recognized by law. {Townsend v. Hendricks, 40 How. 143; Glenn v. Lancaster, 109 N. Y. 641 ; Steck v. Colorado Fuel and Iron Co., 142 N. Y. 236; Untermyer v. Bienhauer, 105 N. Y. 521 ) In an action for a divorce on the ground of adultery, if the answer puts in issue the allegation of adultery, the court must. When a Jury Trial is a Matter of Right. 59 Complaint must determine tlie character of the action. upon the application of either pirty, or it may of its own motion, make an order directing the trial, by a jury, of that issue; fcr which purpose the questions to be tried must be prepared and settled as prescribed by section 970 of the Code. (Code of Civ. Pro., § 1757; Batzel v. Batzel, 54 How. 139; Dletz v. Dietz, 2 Hun, 339; 5. C, 48 How. 114; 4 N. Y. Sup. Ct. [T.& C] 565; Whitney v. Whitney, j6 Hun, 585 ; Conderinan v. Conderman, 44 Hun, 181.) So in an action to annul a marriage upon the ground that it was accomplished through fraud, a jury trial of the issues relative to the legality of the marriage is a matter of right unless it is waived in the manner prescribed bylaw. {Morrell w. Morrell, 17 Hun, 324.) In an action brought to obtain equitable relief only, a jury trial is never a matter of right. {Farwellw. Importers, £tc., Nat. Bk , qo N V. 483 ; Davis v. Morris, 36 id. 569 ; Powell V. Waldron, 89 id. 328 ; Ward v. Plato, 23 Hun, 402; Moffat v. Mount, 17 Abb. 4; S C, 10 Bosw. 468; Colman v. Dixon, 50 N. Y. 572; Knickerbocker Life Ins. Co. v. Nelson,^ Hun, 21 ; Mc- Carty \. Edwards, 24 How. 236; Rexford v. Marquis, 7 Lans. 249; Church M. Freeman, 16 How. 294; Matter of the Empire City Bank, 18 N. Y. 199 : San Is v. Kimbark, 27 id. 147 ; Pendergast v. Greenfield, 127 N.Y 23; Davison v. Associates of the fersey Co., 71 N. Y. 333 ; MacKellar v. Rogers. 109 N Y 468 ; Brinckerhoff V. Bostwick, 105 N. Y. 567; Clark v. Mosher, 107 N. Y. 118; Lynch v. Metropolitan Elevattd Ry. C)., 129 N. Y. 274; Acker v. Leland, 109 N. Y. 5.) The joinder of an equitable cause of action with one purely legal does not deprive the defendant of the right of trial by jury. {Bradley m. Aldrich, 40 N.Y. 511; Wheclock V. Lee, 74 id. 495 ; Brady v. Cochran, 23 Hun, 274; Sommer v. New York Elevated Ry., 60 Hun, 148 ; Lefrots v. County of Monroe, 88 Hun, 109; Davison v. Associates of the fersey Co., 71 N. Y. 333.) When such an action is brought to trial at special term, and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a ri.covery is sought are such as at the adoption of the Constitution were redressed by an action at law, and if so, should direct the cause to be tried by a jury at a trial term, or, at all events, should rtfuse to try the CHuse without a jury. {Wheelock v. Lee. 74. N. Y. 495 ; Davis v. Morris, 36 id. 569, 572 ; Hudson v. Caryl, 44 id. 55^.) The com- 60 Trial Practice. Demand for damages in actions in tquity. plaint must determine the character of the action. {Biicher v. Carroll, 19 Hun, 618; Steck v. Colorado Fuel and Iron Co., 142 N. Y. 236.) Where the complaint is evidently framed to present a single cause of action in equity to restrain a continuing trespass, the demand for past damages in the prayer for judgment will not have the effect of setting up an independent cause of action entitling the defendant to a jury trial. {Lynch v. Metropolitan Elevated Ry. Co., 129 N. Y. 274.) When the complaint is framed solely for equitable relief, and the action is tried as an action in equity, the court, on finding that the plaintiff is not entitled to any equitable relief, but that the facts would warrant an action for damages which the plaintiff has not alleged or claimed, cannot order judgment for such damages. {Bradley -v. Aldrich,\o N.Y. 504. See Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451 ; Hawes v. Dobbs, 137 N. Y. 465 ; Cohman v. Dixon, 50 id. 572 ; Brinckerhoff v. Bostwick, 105 N.Y. 567, 572.) An oppor- tunity must be afforded to the defendant to claim a jury trial on that ground of action. (Wkeelock v. Lee, 74 N. Y. 495. See Stevenson v. Buxton, 37 Barb. 13 ; Sternberger v. McGovern, 56 N.Y. 12.) Altnough the Code provides that " where the defendant inter- poses a counter-claim, and thereupon demands affirmative judg- ment against the plaintiff the mode of trial of an issue of fact thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counter-claim and demanding the same judgment,'' this does not entitle a defendant in an equity suit to a trial by jury of a legal cause of action set up in his answer by way of counter-claim. No such rights existed at common law ; it is not secured by the constitution ; and it is not within s.ction 9C8 of the Code of Civil Procedure. {Mackellar v. Rogers, 109 N. Y. 46S ; Smith v. Fleischman, 23 App. Div. 355. See Roslyn Heights Land Co. v. Burrowes, "]& Hun, 62. If a party may not be deprived of his constitutional right to a trial by jury when another form of trial is substituted, much less may he be deprived of that right where no trial is allowed, except upon affidavits. Therefore, a defendant cannot be deprived of a jury trial of the issues raised by a general denial in a verified answer of the material allegations of the complaint, by striking^ Jury Trial in the Discretion of the Court. 6L Where the ccmplaint demands equitable relief. •out his answer as sham {IVayla^td v. Trsen, 45 N. Y. 281; Newman v. Supervisors of Livingston Co., id. 676, 691 ; Thompson V. Erie R. R. Co., id. 468; Rohyw. Ha/lock, 5 Abb. N C. 86 ; 5. C, 55 How. 413 ; Farmer.';' Nat. B.ink v Leland, 50 N. Y. 673 ; Barnes v. IVdst, 16 Hun, 68; G-ocers' Bank v. O'Rorke, 6 id. 18; Claflm V Jaroslauski, 64 Barb. 463 : Fellows v. Muller, 48 How. 82 ; 5. C.,6 Jones & Sp. 137; Skulls v. Rodewald, i Abb N. C. 365. And see Webb v. Foster, 13 Jones & Sp. 311 ; Mayor v. James, 17 Hun, 588.) SECTION VI. When a Jury Trial is in the Discretion of the Court. The Code provides that in an action where a party is not entitled as of right to a trial by a jury, the court may, in its discretion, upon the application of either parfy, or without appli- cation, direct that one or more questions of fact arising upon the issues be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly. (Code -of Civ. Pro., § 971.) The mode of trial of the tacts upon which a plaintiff bases his claim to equitable relief is a matter of discretion with the trial court. {Colman v. Dixon, 50 N. Y. 572; Knickerbocker Life Ins. Co. V. Nelson, 8 Hun, 21; Colie v. Tifft, 47 N. Y. 119; Paul v. Parshall, 14 Abb. [N. S] 138; Church v. Freeman, 16 How. 294; Rex ford v. Marquis, 7 Lans. 249; Powell v. Waldron, 89 N. Y 328; Carroll v. Deimel, 95 N. Y. 252; Acker v. Leland, 109 N. Y 5; Hammond v. Morgan, lOi N. Y. 179; Madison University v. White, 25 Hun, 499.) This is also true of actions in which both legal and equitable relief for the same cause of action is demanded unless the defendant claims a jury trial of the legal cause of action. {Cogs- well v. New York, N. H. & H. R R. Co., 105 N. Y. 319.) In purely equitable actions it always rested in the discretion of the court either to ask the aid of the jury to inform the con- science of the court, or to decide the case without such aid. {Knickerbocker Life Ins. Co. \. Nelson, 8 Hun, 21.) The court may, of its own motion, submit the questions to the jury. {Rindgev. Baker, 57 N. Y. 209; 5. C, 15 Am, Rep. 475.) The jury must then find upon the issues, and their findings must then 6'i Trial Practice. Waiver of the right to a jury trial. be presented to the court upon a final hearing {Birdsall v. Patterson, 51 N. Y. 43.) Then, if proof is necessary to establish facts not admitted by the pleadings, or found by the jury, such pi oof must be given; and the court using the findings of the jury for its information, finds the facts and decides the law sub- stantially as if all the issues had been tried before it. (Id.; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; S. C, 14 Am. Rep. 173.) The trial of these issues by the jury is not a trial of the action, but only one step in such trial. (Id.; Hegeman v. Cantrell, 50 How. 188; Code of Civ. Pro., § 972.) The right of the court to adopt or reject the finding of the jury wiL be con- sidered hereafter. (See Wallace v. American Linen Thread Co., 16 Hun, 404.) SECTION VII. Waiver of the Right to a Jury Trial. The constitution of this state, while securing to a party the right to a jury trial " in all cases in which it has been heretofore used," provides that " a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law." (Art. I, § 2.) The Code of Civil Procedure provides that a party may waive his right to the trial of the issue of fact by a jury in any of the following modes : 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court entered in the minutes. 4. By moving the trial of the action without a jury; or, if the adverse party moves it, by failing to claim a trial by a jury before the production of any evidence upon the trial. (Code of Civ. Pro., § 1009.) Although the action cited specifies certain modes by which a trial by jury may be waived it is not exclusive, and the same effect may be given to any evidence, either of conduct or acqui- escence by a party, which, in other cases, would require a conclu- sion that a right designed for his benefit had been waived. {Mackellar v. Rogers, 109 N. Y. 468.) A party pleading facts ordinarily triable by jury, will be held to have waived a jury trial by noticing the cause for trial before a court for which no jury Waiver of the Right to a Jury Trial. 63 Where a party does not waive his right to a trial by jury. could be drawn. (Id.) So a party, by consenting that a cause shall be tried at special term for the purpose of securing a post- ponement at the trial term, waives the right to insist upon a jury trial. {Third Nat. Bank V. Shields, II Hun, 274.) So a plaintiff will be held to have waived a jury trial by bringing an action for both legal and equitable reiief in respect to the same cause of action. {Cogswell v. New York, N. H. & H. R. R. Co., 105 N. Y. 319; Loomisv. Decker, 4 App. Div. 409; Sheufieldv. Bernheimer, 43 St. Rep 383; Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451, 460.) But a consent that a cause, embracing both legal and equitable issues, be placed on the calendar for trial at Special Term", and the noticing of the case for trial at that term, is not a waiver of a jury trial of the legal issues, especially when the parly demands a jury trial at the first opportunit}'. {Whee- lock V. Lee, 74 N. Y. 495.) And where on the trial of a cause, embracing both legal and equitable issues, the plaintiff merely reads the pleadings and rests without calling any witnesses, the defendant will not be precluded from claiming his right to a jury trial {People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161) unless the reading of the pleadi^ gs is to be construed as the production of evidence within the meaning of subdivision 4 of section 1009 of the Code. So where the complaint does not set forth a cause of action triable by a jury, but such cause is for the first time disclosed by the evidence, the defendant does not waive his right to a jury trial by failing to demand it. {Dalton V. Vanderveer, 31 Abb. N. C. 430; 8 Misc. 484.) It has been repeatedly held that a total failure to insist at the trial upon the right to a trial by jury is a waiver of the right, or at least that the objection not having been taken on the trial could not be considered on appeal. {Mofatt v. Mount, 17 Abb. 4; 5. C, 10 Bosw. 468; Black v. White, 5 Jones & Sp. 320; Keiley "v Dusenbury, lO id. 238; Barlow v. Scott, 24 N. Y.40; West Point Foundry v. Reymert, 45 id. 703; Lewis v. Mott, 36 id. 399; Hart- man V. Manhattan Ry. Co., 82 Hun, 531; Stono v. Weiller, 128 N. Y. 655.) And it has been held that where a party does not demand a trial by jury in any manner, but merely moves to dismiss the complaint upon the ground, among others, that the cause is triable by a jury and not by the court, and upon the denial of ■64 Trial Practice. What issues are triable by tine court. the motion proceeds to trial, he must be considered as acquies- cing in a trial without a jury. {Grayson v. Keteltas, 17 N. Y. 491.) It has also been held that where a party seasonably ■demands a jury trial, but bases the demand upon an untenable ground, as that " the question in the case is a question of fact," a denial of the request is not an error calling upon the appellate court to grant a new trial. {McKeon v. See, 51 N. Y. 300; S. C, 10 Am. Rep. 659; affirming 5. C, 4 Rob. 449.) Where the question as to the right of trial by jury is not raised until a witness'has been sworn and examined, the delay will be fatal to a claim to the right. {O'Brien v. McCarthy, 71 Hun, 427; Kenney v. Apgar, 93 N. Y. 539.) The-failure of the defendant to insert in his answer a distinct allegation that the plaintiff has an adequate remedy at law may effectually debar him from claiming that the action is not one of equitable cogniz- ance and that he is entitled to have the issues tried by a jury. {O'Brien v. McCarthy, 71 Hun, 427; Town of Mentz v. Cook, io8 N. Y. 508; Ostrander v. Weber, 114 N. Y. 95.) A stipulation in a contract of insurance that the issues in any action brought against the insurer under the contract " shall be referred for trial to a referee to be appointed by the court in which the action is brought,'' is absolutely void and is not a -waiver of the right to a trial by jury. (Sanford v. Accident Association^ 147 N. Y. 326; affirming 86 Hun, 380. If, after the coinraeneement of the trial of a cause before a jury, and the introduction of the evidence of both parties, the case presents only a question of law, and tlie parties do not dissent from the suggestion of the court that the case be submitted to him for decision, and no objection is made to the discharge of the jury from the further consideration of the case, the parties will be deemed to liave consented to this disposition of the case, r.au to Lave v.'^l.^J the jury. {Graliam v. O^llem, 2J: Ilau, 221.) SECTION VIII. What Issues aee Triable by the Court. An issue of law in an action must be tried by the court or by a referee. (Code of Civ. Pro., § 969.) An issue of fact in an action not specified in section 968 of the Code, or wherein provision for Reference of the Issues. 65 Stipulation to refer. a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jnry trial is directed. (Id.) The actions specified in section 908 of the Code are actions in which the complaint demands judgment for a sum of money only, actions of ejectment, for dower, for waste, for a nuisance, or to re- cover a chattel. Every issue of fact, raised by the pleadings, and necessarily to be tried in an action, must be tried by a jury, by the court or by a referee. No other form of trial is authorized by the Code- Every issue not triable as of right by a jury must be tried by the court or by a referee, unless the court, in its discretion, directs a jury trial. (See ante, p. 64-) The cases in which a jury trial is a matter of right have been pointed out in a preceding section, and the cases in which a reference may be ordered will be noticed hereafter. Where an action is triable by a jury, and the parties have waived a jury trial of the issues of fact therein, the action must be tried by the court without a jury unless a reference is directed in a ease pre- scribed by law. But such an action, other than to recover damages for a breach of contract, cannot be tried by the court without a jury, unless tiie judge presiding at the term where it is brought on for trial, assents to such a trial. ., His refusal to assent annuls any waiver made in any of the modes prescribed by the Code, except a waiver by failing to appear at the trial. (Code of Civ. Pro., § ico8.) Where questions of fact, not embracing all the issues of fact in an action, have been directed by the court to be tried by a jury, the remaining issues of fact must be tried by the court or by a referee. (Code of Civ. Pro., § 972.) SECTION IX. Reference of the Issues. References may be voluntary or compulsory. As a general rule, but subject to the exceptions hereinafter noticed, the whole issue or any of the issues in an action, either of fact or of law, not only may, but must be referred, upon filing with the clerk the consent of the parties manifested by a written stip- ulation signed by their attorneys. Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order of course, referring the issue or issues for trial 5 66 Trial Practice. Appointment of referee not named in stipulation. to that person only. If the referee named in the stipnlation refuse to serve, or if he serves and a new trial is afterward granted, the court must appoint another referee, unless the stipulation ex- pressly provides otherwise. (Code of Civ. Pro., § loil.) The last clause of section ion, above cited was added by the amendment of 1879. Prior to that amendment it was held that a party to an action which was not referable without consent of the parties did not by consenting to refer the issue to a particular referee waive his right to a trial by the court or by a jury if for any reason the reference agreed upon fell through; and that upon the death, removal or refusal of the referee to act the action was again in court for trial as if no reference had been consented to. {Preston v. Morrow, 66 N. Y. 452. And see Pratt v. Pratt, 2 App. Div. 534.) The amendment of the section however leaves no discretion in the court. In the cases specified the court must appoint another referee. The statute is mandatory. {Mitchell v. Village of White Plains, g App. Div. 258; Hustis v. Aldridge, 144 N. Y. 508; Brown v. Root Mfg. Co., 148 N. Y. 294; Knowlton v. Atkins, 134 N. Y. 313; May v. Moore, 24 Hun, 351.) But the amendment still leaves the doctrine of Preston v. Morrow in force where the failure of the reference results from any cause other than the granting of a new trial or the refusal of the referee to serve. (See Devlin v. Mayor, 11 Weekly Dig. 116.) Where an txecutor or administrator doubts the justice of a claim presented to him against his testator or intestate he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate. On filing such agreement and ap- proval in the ofiSce of the clerk of the Supreme Court in the county in which the parties or either of them reside, an order , must be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceedings become an action in the Supreme Court. The same proceedings shall be had in all respects, the referee shall have the same power, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which the court might by law direct a reference. (Code of Civ. Pro., § 2718. See Hustis v. Aldridge, 144 N. Y., 508; Hcnningw. Miller, 83 Hun, 403; Rutherfordy. Soo/>,8s Hun, 119.) Compulsory Reference of the Issues. 67 When the court must select the referee. But a reference upon consent of the parties is not always a mat- ter of legal right. The Code provides that " a reference shall not be made of course upon the consent of the parties, in an action to annul a marriage, or for a divorce or a separation; or an action against a corporation, to obtain a dissolution thereof, the ap- pointment of a receiver of its property, or the distribution of its property, unless it is brought by the attorney-general ; or an action wherein a defendant to be affected by the result of the trial is an infant. (Code of Civ. Pro., § 1012.) Where the parties consent to a reference in a case above specified, the court may, in its discretion, grant or refuse a reference; and where a reference is granted, the court must designate the referee. If the referee thus designated refuses to serve, or if a new trial of an action tried by a referee so designated is granted, the court must appoint another referee unless the stipulation expressly provides other- wise. (Id.) Although the statute requires the court to designate the referee in the exceptional cases above mentioied, it does not prohibit the court from designating a referee nominated or suggested by the parties, and such suggestions are generally heeded except where the action is brought to obtain a divorce or separation, or to declare a marriage contract void, in which case the general rules of practice, with all the force of a statute, prohibit a refer- ence to a referee nominated by either party or to a referee agreed upon by the parties. (Rule 72; Ives v. Ives, 80 Hun, 136; Pratt V. Pratt, 2 App. Div. 534.) Where in violation of the rule the parties stipulate to refer the action to a particular referee and the order of reference entered thereon is vacated by the court, it is error to appoint another referee, {Pratt v. Pratt, 2 App. Div. 534.) Compulsory reference of the issues. — The power of the court to direct a reference of the issues of fact arising upon the plead- ings in an action without the consent of the parties is to be found, if at all, in section 1013 of the Code, which provides that "the court may, of its own motion, or upon the application of either party, without the consent of the other, direct the trial of the issues of fact by a referee where the trial will require the exam- ination of a long account on either side, and will not require the 68 Trial Practice. Compulsory references. decision of difficult questions of law." In an action triable by the court without a jury a reference may be made as prescribed in this section, to decide the whole issue, or any of the issues, or to report the referee's finding upon one or more specific questions of fact involved in the issue. Whatever may be the object of the reference, and whatever may be the nature of the action, whether legal or equitable (See Dane v. Liverpool, etc., Ins. Co., 21 Hun, 259; O'Reilly v. City of Kingston, 30 id. 508; Read v. Losin, 31 id. 286; Barnes v. West., 16 id. 68), a compulsory reference of the issues raised by the pleadings can be ordered only where the trial of the issue will require the examination of a long account on either side (Barnes v. West, 16 Hun, 68; Streat v. Rothschild, 12 Abb. N. C. 383; Townsendv. Hendricks, 40 How. 143; McCullough V. Brodie, 6 Duer, 659; S. C, 13 How. 346; Cameron v. Freeman, 18 id. 310; Dalzelv.Fahys Watch Case Co., 12 Misc, 357; Thayer V. McNaughton, 117 N. Y. 1 1 1 ; Camp v. Ingersoll, 86 N. Y. 433 ; Morrison v. Van Benthuysen, 103 N. Y. 675 ; Untermyer v. Bien- hauer, 105 N. Y. 521; Randall v. Sherman, 131 N. Y. 669; Johnson •V.Atlantic Ave. R. R. Co., 139 N.Y. 449; Feeterv. Arkenburg, 147 N. Y. 237), and not then if the accounts to be examined are not the immediate object of the suit or the ground of the defense, and are only incidentally and collaterally, and not directly in- volved (Kain v. Delano, 11 Abb. [N. S.] 29; Streat v. Rothschild, 12 Abb. N. C. 383 ; Turner v. Taylor, 2 Daly, 278; Keep v. Keep, 58 How. 139; DeGraffv. Mackinley, 6 Jones & Sp. 203; Camp v. Ingersoll, 86 N. Y. 433 : Read v. Lozin, 31 Hun, 286; Bushnellv. Eastman, 2 Abb. [N. S.] 411; Cameron v. Freeman, 18 How. 310; S. C, 10 Abb. 333; Keller v. Payne, 51 Hun, 316; Claflmv. Drake, 38 Hun, 144; Mitchell w Oliver, 56 Hun, 208; Continental Ins. Co. V. Phenix Ins. Co., 29 St. Rep. 362; Doyle v. Met. El. Ry. Co., 136 N. Y. 505); nor where it does not appear affirmatively with reasonable certainty that the examination of a long account is necessarily, and not possibly, involved upon the trial; {Cas.ndy V. McFarland, 139 N. Y. 201 ; Thayer v. McNaughton, 117 N. Y. in; Spence v. Simis, 137 N. Y. 616; Cornell \. United States III, Co. 41 St. Rep. 172: C. B. Keogh Mfg. Co. v. Mallon, 40 St Rep. 688) ; nor when the trial of the action will require the decision of difficult questions of law. {Dane v. Liverpool, etc, Ins. Co., 21 Hun, 259; Code of Civ. Pro., § 1013; Turner v. Taylor^ Compulsory Reference of the Issues. ci9 Referable actions. 2 Daly, 278: Streat v. Rothschild, 12 Abb. N. C. 383; Magown v. Sinclair, 5 Daly, 63 ; Ives v. Vandewater, i How. 168 ; Goodyear V. Brooks, 2 Abb. [N. S.] 296 ; S. C, 4 Rob. 682. Even when the action is referable, a reference of the issues is not a matter of right, but rests in the discretion of the court. (^Martin v. Windsor Hotel Co., 70 N. Y. loi; Felt v. Tiffany, 11 Hun, 62.) Actions sounding in tort are not referable. (Townsend v. Hen- dricks, 40 How. 143 ; Hyatt v. Roach, 52 id. 115 ; Verplank v. Kendall, 13 Jones & Sp. 525 ; Wood v. Hope, 2 Abb. N. C. 186; Dewey v. Field, 13 How. 437 ; Ross v. Mayor of New York, 32 id. 164; 5'. C, 2 Abb. [N. S.] 266; Cameron v. Freeman, 18 How. 310; 5. C, 10 Abb. 333; McMaster \. Booth, 4 How. 427: Warner V. Western Transp. Co., 3 Rob. 705; People v .Wood, 54 Hun, 438; Morrison v. Horrocks, 40 Hun, 428; Willard v. Doran Sf Wright Co., 48 Hun, 402 ; Wtckham v. Frazee, 13 Hun, 431. The char- acter of the action is to be determined by the complaint ; {Town- send v. Hendricks, 40 How. 143; Walsh v. Darragh, 52 N. Y. 590; Kennedy v. Kenna, 49 Hov/. 308; Hyatt v. Roach, 52 id. 11 5; F^r- plankv. Kendall, 13 Jones & Sp. 525; Harden v. Corbett, 6 Hun, 522; Woodv. Hope, 2 Abb. N. C. 186; Williams v. .<4Z/^«, 2 Hun, 377; 5. C, 4 N. Y. Sup. Ct. [T. & C] 673; 48 How. 357: People V. Wood, 54 Hun, 438; Untermyer v. Beinhauer, 105 N. Y. 521; Steck V. Colorado Fuel and Ir'^n Co. 142 N. Y. 236; Cassidy v. Mc- Farland, 139 N. Y. 201, 205,) and if the action from its nature is not referable, the answer cannot make it so {Townsend v. Hen- dricks, 40 How. 143, Untermeyer v. Beinhiuer, 105 N. Y. 521,) and on the other hand, if the action is from its nature referable, the answer cannot make it non-referable. {Walsh v. Darragh, 52 N. Y. 590; Kingsley v. City of Brooklyn, i Abb. N. C. 108; Patter- son V. Stettaner, 7 Jones & Sp. 413; Verplank v. Kendall, 13 id. 525; Devlin v. Mayor, 54 How. 5,0; Matter of Crosby v. Day, 81 isr. Y. 24 i.) It has been held that the court may order a compulsory refer- ence of all the issues in an action on contract where the answer sets up an affirmative defense by way of counter-claim, involving the examination of a long account, although the cause of action set forth in the complaint is non-referable. {Maryott v. Thayer, 7 Jones & Sp. 417; Blackstone Bank of Boston v. Bogart, 9 id. 70 Trial Practice. What is a long accoant. 292.) This Statement of the law is correct with the qualification that the answer setting up the counter-claini admits the cause of action set forth in the complaint. If it controverts the cause of action set forth therein the right of the plaintiff to a jury trial of that issue is constitutional and cannot be taken away by the answer. Steck v. Colorado Fuel and Iron Co., 142 N. Y. 236. A plaintiff's claim to a compulsory reference cannot be based upon or aided by a counter-claim set up by the defendant. Chu Pawn V. Invin, 73 Hun, 182. It has been held that the court may order a reference of all the issues, if the trial of any one of the issues will involve the exam- ination of along account. {Whittaker V. Desfosse, 7 Bosw. 678; Batchelorv. Albany City Ins. Co , i Sweeney, 346: S. C, 37 How. 399; 6 Abb. [N. S.] 240; Goodyear v. Brooks, 4 Rob 682; 5. C.,2, Abb. [N. S.j 296.) On the other hand, it has been held that if a cause of action, which is referable, is joined in the same com- plaint with a cause of action not referable, neither cause can be referred, at least until the non-referable cause has been disposed of by a jury. {Ross v. Combes, $ Jones & Sp. 289; Evans v. Kalb- fleisch, 4 id. 450; .S. C, 16 Abb. [N. S.] 13; Peabody v. Cortada, 50 St. Rep. 743.) Where the complaint in an action sets forth a claim composed of many different items which might be united in one count as one cause of action, and where the trial of the issues requires the examination of a long account, the fact that one item of the demand is stated in the complaint in a separate count as a separate cause of action, which, if sued on alone, would not be referable, does not deprive the court of the power to refer. Place V. Chesebrough, 4 Hun, 577; 5. C. affirmed, 63 N. Y. 315. What is a long account. — Where there is no account between the parties in the ordinary acceptation of that term, the cause cannot be referred, although there may be many items of damage. {Van Rensselaer v. Jewett, 6 Hill, 373; Thomas v. Reab, 6 Wend. 503; Silmser v. Redfield, 19 id. 21; McCullough v. Brodie, 6 Duer, 659; 5. C, 13 How. 346; Dewey v. Field, id. 437; Johnson v. A. A. R. R. Co. 139 N. Y. 449; Camp v. Ingersoll, 86 N. Y. 433 ; Untermyer v. Beinhauer , 105 N. Y. 521. What is a Long Account. 71 Bills for services of attorneys. An acconnt proper is for goods sold or moneys received or col- lected, or paid oat, loaned or expended. It is the commercial or financial account to which the Code relates, the account in trade or in finance, and not a statement of items or elements of damages for a contract broken, which, if fulfilled and prosecuted, might require the examination of items in detail. {Bell v. Maym\ 11 Hun, 511.) An account is not involved because a number of items or distinct facts will have to be proved. {DittenJweffer v. Lewis, 5 Daly, 72 ; Turner v. Taylor, 2 id. 282 ; Sharp v. Mayor, etc., of N. T., 18 How. 213 ; Thomas v. Reah, 6 "Wend. 503 ; MoCulloiigh v. Brodie, 13 How. 346.) An action for damages for the breach of a contract to finish certain houses by a time certain is not referable on the ground that the trial of the action will require the examination of a long account, as even if the plaintiffs were allowed to show the numerous particulars in which the defendant was in default, and the damage growing out of each specific default, these damages could not, in any sense, be made a matter of account between the parties. {McDonnell v. Stevens, 9 Hun, 28.) The account must be a long account in the proper sense of the term. Where the transactions between the parties are few a ref- erence cannot be ordered merely because the details which make up the transaction are somewhat numerous. {Farrell Foundry v. Anvil Horse Shoe c& NaU Co., 11 Week. Dig. 350.) An action to recover for a bill of goods, delivered at one time, is not referable, although the bill contains fifty items. The entire bill constitutes in fact but one item. {Swift v. WeUs, 2 How. 79. And see MiMer v. Hooker, id. 171 ; Randall v. Kmgsland, 53 id. 512, 514 ; Smith v. Brown, 3 id. 8 ; Ham.': v. Mead, i6 Abb. 257 ; Brink v. Republic Fire Ins. Co., 2 N. Y. Sup. Ct [T. & C] 550; Parker v. Sne//, 10 Wend. 577.) An action by an attorney to recover a sum in gross for services rendered in a single suit is not rendered referable by the fact that the steps and proceedings in the cause have been numerous, and that he has the option to prove their value, either separately or in gross. {Fe/t v. Tiffany, 1 1 Hun, 62 ; Fitch v. Volker & Feltenhousen Mfg. Co. 70 Hun, 71 ; Abbott v. Corbin, 22 App. Div. 584; Tracy v. Stearns, 61 How. 265; Merritt v. Vige- litis, 28 Hun, 420; Dittenhoeffer v. Lewis, 5 Daly, 72. And see Randall v. Kingsland, 53 How. 512; Dickinson v. Mitchell, 19 Abb. 286 ; Waring v. Chamberlain, 14 Week. Dig. 564; Davis v. 72 Trial Practice. Reference of attorneys' claims. Walsh, i6 Jones & Sp. 515; Randall v. Sherman, 131 N. Y. 669. Estes V. Dean, i App. Div. 34. A bill of particulars of an attor- ney's claim, consisting of ten items, six of which are for consulta- tions ; one for counsel fees and consultation ; one for drawing a complaint ; one for demanding property from the sheriff ; and one for attendance on justification of bail, does not disclose a referable action, and the several charges do not constitute items of account within the legal acceptation of that phrase. {Merritt V. Vigelius, 28 Hun, 420. See Dickinson v. Mitchell, 19 Abb. 286 ; Waring v. Chamberlain, 14 Week. Dig. 564.) So a reference has been denied in an action to recover for the services of an attorney in four suits where his bill of particulars contained one hundred and twenty-five items {Spence v. Simis, 137 N. Y. 616); and in an- other action where the bill contained one hundred and fifty items and three separate subjects of employment {Feeler v. Arkeiib'.irgh, 147 N. Y. 237. And see also Estes v. Dean, i App. Div. 34.) The test in such cases is whether the papers before the court on the application for the order disclose facts from which the con- clusion can be fairly drawn that so many and distinct items of account will be litigated on the trial that the jurors cannot keep the evidence in mind in regard to each of the items and give it the proper weight and application when they retire to deliberate on their verdict. {Spence v. Simis, 137 N. Y. 616; Hedges v. Methodist Prot. Church, 23 App. Div. 347.) The power of the court to refer an action brought to recover for services rendered by an attorney is undisputed where the cir- cumstances disclose a proper case. (Stebbins v. Cowles, 30 Hun, 523; Estes v. Dean, i App. Div. 34; Carr v. Berdell, 22 Hun, 130.) But references of such actions are not favored by the courts. (Flanders v. Odell, 16 Abb. N. S. 247; 2 Hun, 664; Waring v. Chamberlain, I A^ Week. Dig. 564; Martin v. Windsor Hotel Co., 10 Hun, 304; Merritt v. Vigelius, 28 Hun, 420; Abbott v. Corbin, 22 App. Div. 584. Where a complaint is so framed that the plaintiff must recover, if at all, upon an account stated, there is no controversy before the court in respect to the items which entered into the account, no examination of the account required, and no ground upon What is a Long Account. 73 Examination of accounts must be necessary. which a compulsory reference can be directed. {Rowell v. Giles, S3 How. 244.) So when there is no contest as to the correct- ness of the items of account, nor as to the amount of it, there is no ground for a compulsory reference. {Ma^own v. Sinclair, 5 Daily, 63, 66; Cassidy v. McFarland, 139 N. Y. 201.) But this rule does not apply where the defendant does not admit the account so charged, but only a portion of the elements constitut- ing it, so that to some extent the account must be examined, and the several items considered upon the trial. ( Welsh v. Darragh, 52 N. Y. S90; Kennedy v. Kenna, 49 How. 30S, 681.) In a number of cases it has been held that a reference may be ordered in an action in which the trial of some one of the issues will involve the examination of a long account, although the determination of some other issue may render it unnecessary to try the first- named issue at all. {Wkitakerv.Desfosse, 7 Bosw. 678,681; Mills V. Tkursby, 11 How. 113; Batchelor v. Albany City Ins. Co., i Sweeney 346; 5. C, 37 How. 399.) On the other hand, it has been held that a reference cannot be ordered wftile there are issues in the action undetermined, which, when determined, may render the examination of an account unnecessary. {Cameron v. Freeman, 18 How. 310; S. C, 10 Abb. 333; Mitchells. Stewart, 3 Abb. [N. S.] 250; Keeler v. Poughkeepsie and Salt Point Plankroad . Co., 10 How. II; Graham v. Golding, 7 id. 260; Averillv. Emer- son, 74 Hun, 157; Colt V. Goodheart, 5 App. Div. 115; Empire S. T. & T. Co. V. Bickford, 142 N. Y. 224 ; Goodyear v. Brooks, 4 Rob. 682 ; S. C, 2 Abb. [N. S.] 296. Schermerhorn v. Wood, 4 Daly, 158.) Where an action is brought by a creditor of a deceased debtor to collect the debt from the defendants,* so far as they have become vested by descent or devise with the title to the real estate owned by the debtor, the liability of the defend- ants for the debt is the vital or fundamental point to be estab- lished, and until this is done no special investigation of the ac- counts going to make up the debt can be required, and no reference can be ordered without the consent of the parties. When the liability has been established a reference may then regularly be ordered to take and state the accounts for the purpose of ascer- taining the extent of the liability. {Read v. Lozin, 31 Hun, 286.) Such a reference does not fall within the provisions of section 1013 of the Code, which includes only the class of cases in which 74 Tkial Practice. Reference to take an account or report facts. the immediate object of the party is the recovery of the account relied on. (See ante, p. 68.) Reference to take an account or report facts, etc. — In addi- tion to the power conferred upon the court to direct a reference of an issue arising upon the pleadings the Code 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 final or interlocutory judgment, or where it is necessary to do so for the information 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 otherwise, except upon the pleadings. (Code of Civ. Pro., § 1015.) The last clause of the section cited authorizes a reference in an equity case to determine a question of fact, arising collaterally and not directly, and report such determination to the court. It does not authorize a reference to take testimony merely; and it does not authorize a reference of any disputed questions of fact upon which the parties have directly joined issue and which arise upon the pleadings. (Doyle v. Metropolitan El. Ry. Co., 136 N. Y. 505; Farmers National Bank v. Houston, 44 Hun, 567. See Marshall v.Meeck,:i,i N. Y. 140.) The power to order a compulsory reference of the issues aris- ing upon the pleadings is given by section 1013 in the Code. Under the first clause of that section power is given to the court to refer all the issues in the action, whether legal or equitable, if the trial will require the examination of a long ac- count, and does not require the decision of difficult questions of law; and under the second clause of the section the court is authorized, in an action triable by the court without a jury, to direct a reference to decide some of the issues less than the whole, or to appoint a referee in such action to report findings upon one or more specific questions of fact. But neither clause authorizes a reference where the trial will not require the exam- ination of a long account, nor when it will require the decision of difficult questions of law. (^Dane v. Liverpool, etc., Ins. Co., 21 Hun, 259.) The Code also provides that, "- Where a provision of this act Reference to Take an Account or Report Facts. 75 Special references. authorizes the court to approve an undertaking, or the sureties thereto; or to make an examination 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 appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the Court of Chancery, on the 31st day of December, 1846, a matter was referable to the clerk, or to a master in Chan- cery, 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 master in Chan- cery, except where it is otherwise specially prescribed by law." (Code of Civ. Pro., § 827.) This section authorizes special references in certain matters but obviously does not authorize a reference to take testimony in an action after issue joined or to dispose of any issue arising in a litigated case. {Doyle v. Metropolitan El. Ry. Co., 136 N. Y. 505, 509.) Section 3172 of the Code confers upon the City Court of the City of New York power to order a compulsory reference to de- termine and report upon a question of fact arising upon a matter in any stage of an action* CHAPTER IIL PREPARATION FOR TRIAL. SECTION I. Removal of the Cause to Another Court. There may be cases in which it is necessary, and others in which it is advisable, that the action should be removed from the court in which it is pending to some other court, and the trial had in the latter court. This may be necessary where the judge or judges of the court in which the action is pending are for any reason incapable of sitting upon the trial of the action ; and it may be advisable for the purpose of changing the place of trial of the action, or for the purpose of consolidating two or more actions pending between the same parties in different courts. Proceedings where the county judge is disqualified. — The cases in which a judge is disqualified from sitting upon the trial of a cause have been considered in a prior chapter. (See ante» pp. 15, 18.) The Code provides that if the county judge is for any cause incapable to act in an action or special proceeding pending in the County Court, or before him, he must make and file in the office of the clerk a certificate of that fact, and thereupon the special county judge, if any, and if not disqualified, must act as county judge in that action or special proceeding. Upon the filing of the certificate where there is no special county judge, or the special county judge is disqualified, the action or special proceeding is removed to the Supreme Court, if it is then pend- ing in the County Court ; if it is pending before the county judge, it may be continued before any justice of the Supreme Court within the same judicial district. (Id., § 342. And see Matter of the Village of Rhinebeck, 19 Hun, 346.) The proceedings to remove the cause to the Supreme Court, 76 Removal of the Cause to Another Court. 77' Proceedings where the county judge is disqualified. above noticed, are conducted wholly by the court of its own motion, without the intervention of the parties. Either party may also apply to the Supreme Court for an order removing an action pending in the County Court to the Supreme Court on account of the disqualification of the county judge. (Code of Civ. Pro., § 342.) The application must be made upon notice to the adverse party (Id.) of not less than eight days, if the notice is personally served (Id., § 780), or of not less than sixteen days if the service is made by mail (Id., § 793). unless the court or a judge thereof upon an affidavit showing grounds therefor, makes an order to show cause why the application should not be granted, and in the order directs that service of the order, less than eight days before it is returnable, is sufficient. (Id., § 780.) If the moving party has not sufficient time to make the application before a term of the County Court for which the action has been noticed for trial, or if, for any other cause, it is essential to have a stay of proceedings for the purpose of affording opportunity to make the application for removal, he should obtain an order staying proceedings in the action. This order may be made by the county judge, or by a judge authorized to make such an order in the Supreme Court. (Id., §345. See Id., §§ 772, 773, 775.) An order staying pro- ceedings will usually obviate the necessity of an order to show cause, as a stay for twenty days may be obtained on an ex parte application. (Id., § 775. But see Gen. Rule 37.) The practice on an application to obtain a stay of proceedings in an action will be considered in a subsequent section of this chapter. Where the application is to be made on notice, the moving party should prepare an affidavit or affidavits showing the pen- dency of the action in the County Court, the condition of the action, and setting forth with particularity the facts showing the disqualification of the county judge ; and if such is the fact, that there is no special county judge of the county ; or if tTiere is a special county judge who is also disqualified from acting in the action, that fact should be shown. He should also prepare a notice, stating the object of the motion, the papers upon which it will be made, and the time and place of the application. Copies of the affidavits and notice must be served upon the attorney for the adverse party. The motion must be made at a 78 Trial Practice. Proceedings on removal to change the place of trial. Special Term of the Supreme Court (See Gen. Rule 38), and properly should be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable. (See Code of Civ. Pro., § 769.) On the hearing of the motion and upon proof that the county judge is incapable to act, the court may grant an order removing the action to the Supreme Court, and must do so on proof that the special county judge is also incapacitated. (Id., § 34.2.) The successful party should file the papers read on motion, and enter the order in the office of the county clerk. The order takes effect upon entry. (Id., § 344.) A certified copy of the order should then be served upon the attorney for the adverse party, for the purpose of limiting the time to appeal. (Id., §§ 2/1, 344, 135 1.) The subsequent proceedings in the Supreme Court must be the^ same as if the action had originally been brought in that court, except that an objection to the jurisdiction may be taken which might have been taken in the County Court. (Id., § 342. And see Id., § 346.) Proceedings on removal to change the place of trial —It is evident that where an action has been commenced in a local court, the place of trial cannot be changed to another county without removing the cause to a court capable of holding a Trial Term in that county. The Code, therefore, provides that the Supreme Court may, by an order made at any time after the joinder of an issue of fact, and before the trial thereof, for the purpose of changing the place of trial, remove to itself an action brought in the County Court in favor of an executor, adminis- trator or assignee of a judgment creditor, or in a proper case, in favor of the judgment creditor, to recover a judgment for money due upon a judgment rendered in the same court ; or an action brought in the County Court, for any other cause within its jurisdiction, as to the persons of the parties and amount involved, wherein the complaint demands judgment for a sum of money only; or to recover one or more chattels, with or without damages for taking or detention thereof. (Code of Civ. Pro., § 343-) The Code also provides that the Supreme Court at a term held in the first judicial district may, by an order made at any time Proceedings on Removal to Change Place of Trial. 79 Order to stay proceed'.ngs. after joinder of an issue of fact, and before the trial thereof, remove to itself an action brought in the City Court of the city of New York, for the purpose of changing the place of trial thereof ; and that when the order for removal is made, the place of trial must be changed by the same order to another county, and that the subsequent proceedings therein must be the same as if the action had been originally brought in the Supreme Court. (Code of Civ. Pro. § 319.) The power to remove an action to the Supreme Court from a local court is given by the sections of the Code above cited for the sole purpose of changing the place of trial, and will not be exercised in a case where the Supreme Court, under its estab- lished practice, would not change the place of trial if the suit were already pending in that court. (See Quinn v. Van Pelt, 12 Hun, 633.) The application for removal of the cause to the Supreme Court from the City Court of New York must be made in the first judicial district (Code of Civ. Pro. § 319), and from the county court, in the judicial district in which the action is triable or in a county adjoining that in which it is triable. (Code of Civ. Pro. § 769.) The application should be made at a special term of the Supreme Court (Rule 38,) and should be based upon the plead- ings and other papers in the action or upon affidavits, or both. The moving papers should show the pendency of the action in the court from which a removal is sought ; the nature of the action and the proceedings had therein ; that an issue of fact has been joined therein which has not been tried ; and any fact tending to show that the moving party is entitled to a change of the place of trial as a matter of right or as a matter of dis- cretion. No demand for a change of the place of trial need be made prior to the notice of the application. {Granger v. Sheble, 34 Hun, 241.) An order to stay proceedings for the purpose of affording an opportunity to make the application may be made either in the court in which the action is pending or in the Supreme Court. ALny judge authorized to make such an order in the Supreme Court may grant the stay. (Code of Civ. Pro., §§ 272, 319, 345.) If the action is pending in the City Court, the stay may be ordered 80 Trial Practice. Removal for the purpose of consolidation. by any judge of that court (Id. § 319), or, if in the County Court, by the county judge. (Id. § 345.) Copies of the affidavits and notice of motion must be served on the attorney for the adverse party (See Rule 21) at least eight days before the time of hearing. (See Code of Civ. Pro. § 780.) Whether the order will be granted or not is purely a matter of discretion. (Granger v. Sheble, 34 Hun, 241 ; Cornell v. Evans, 7 Hun, 299. See Quinn v. Van Pelt, 12 Hun, 633.) The order for removal must also direct a change of the place of trial to another county. (Code of Civ. Pro. §§ 319, 343.) This order must be entered in the office of the county clerk or in the office of the clerk of the City Court of the city of New York, as the case may be, and takes effect upon such entry. (Code of Civ. Pro. §§ 319, 344.) The action is thereupon removed into the Supreme Court where the subsequent proceedings will be the same as if the action had been brought there originally. The clerk of the court from which the action is removed must forth- with deliver to the clerk of the county in which the order directs the trial to be had all papers filed in the action, and certified copies of all minutes and entries relating thereto, which must be filed, entered or recorded in the office of such clerk as the case reauires. (Id. §§ 319, 344.) Jhe removal of the action does not invalidate, or in any manner impair a process, provisional remedy or other proceeding, or a bond, undertaking or recognizance in the action, but they sever- ally continue to have the same validity and effect as if the removal had not been made. Where bail has been given, the surrender of the defendant in the Supreme Court has the same effect as a surrender in the court from which it was removed would have had if the action had remained therein. (Id. §§ 319- 346.) Removal for the purpose of consolidation. — Where two or more actions in favor of the same plaintiff against the same defendant, for causes of action which may be joined (See Code of Civ. Pro., § 484), are pending, one in the Supreme Court and another in another court, the Supreme Court may, by order, remove to itself the action in the other court, and consolidate it with that in the Supreme Court. (Id., § 818.) Stay of Proceedings. 81 General rales for obtaining a stay of proceedings. The practice on the application for an order for removal and consolidation will be substantially the same as on an application for removal to change the place of trial. (See ante, p. 78 ) The motion will be based principally upon the pleadings in the several actions, though an affidavit showing the condition of the several actions, and the proceedings had therein, may be necessary. The order will generally be granted, if it appears on the hearing that the parties to the several actions are the same, and that the actions are brought for causes which may be joined. The practice on a motion to consolidate actions will be noticed in a subsequent section. SECTION II. Stay of Proceedings. An application for a stay of proceedings to afford a party time to make an applicat on to the court for some order or relief to which he deems himself entitled is not an infrequent incident in the preparation for the trial of an action. A stay may be important for the purpose of an application to remove! an action from one court to another (See ante, p. jf); upon an application to change the place of trial; upon a motion for a special jury ; and upon any other application to the court where; the rights of the moving party will be prejudiced by further] proceedings in the action before a decision of the motion.! Stays of this class are merely temporary, and are generally! granted until the hearing of the motion, or until the further order of the court. A stay of proceedings is also ordered in some cases as a means of compelling a party to obey an order oif the court, or to perform a duty which he owes to the adverse party. A stay of proceedings of this class may be obtained upon application to the court, or the failure to obey the order may be declared by law to operate as a stay of further proceedings of the party in default until he complies with the order. 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 either is or is to become due, the defendant may obtain a stay of proceedings after judgment and 83 Trial Pbactice. For non-payment of costs or failure to give secnrity for costs. before sale by paying into court the amount due for principal and interest, and the costs of the action, together with the expenses of the proceedings to sell, if any. (Code of Civ. Pro., § 1635. See Id. § 1634.) There are also cases in which the court will order an absolute perpetual stay of all proceedings in an action. An order of this nature, though called by another name, is in effect an injunction. This class of orders was more common under the former practice than under the Code. For non-payment of cost^ or failure to give security for costs. — In certain cases the court may require a plaintiff to give security for the costs of the action, and in the order requiring security to be given, may direct that all proceedings on his part, except to review or vacate the order, be stayed until such security is given. (Code of Civ. Pro. § 3272.) So the court may stay the prosecution of an action until the costs of a former action between the same parties for the same cause are paid. {Griffin V. Round Lake Camp Meeting Association, 26 Hun, 314; Edzvards V. Ninth Ave. R. R. Co., 22 How. 444; Richardson v. White. 27 id. 155; Barton v. Speis,72) N. Y. 133; McMahon v. Mutual Bene- fit Life Ins. Co., 12 Abb. 28; Foley v. Rathborne, 12 Hun, 589; Thompsons. Burckell, 16 Jones & Sp. 537; Perkins v. Hinman, 19 Johns. 237; Sandford v. Chase, 3 Cow. 381.) But it is only where the record shows that the two actions are identical, and that the relief sought in each is similar, that proceedings in the second action will be stayed. If the causes of action in the several suits are essentially different in their nature, though relating to the same general subject-matter, a stay of proceedings in the second suit will not be ordered. (Arnolds. Clark. 9 Daly, 259; Davis v. Duffie, 5 Duer, 688; S. C, 3 Abb. 363; Drake v. New York Iron Mine, 71 Hun, 211. A stay of proceedings in a second suit for non-payment of costs of a former action for the same cause will not be ordered, where the parties defendant in the second suit were not parties to the former action, and consequently are not interested in the payment of costs therein. {Bolton v. Corse, 15 Jones & Sp., 493.) But the fact that some of the defendants are new parties will not prevent the court from making the order {Kentish v. Tatham, 6 Hill, 872); nor will the fact that the second Stay of Proceedings. 83 Stay for non-payment of costs. suit is brought by an assignee of the plaintiff in the former suit {Richardson v. White, 27 How. 155 ; Barton v. Speis, 73 N. T. 133 ; Griffin v. Round Lake Camp Meeting Association, 26 Hun, 314); nor that the guardian of an infant plaintiff in the second suit was not the guardian of the plaintiff in the former action. {Taylor V. Yandervoort, 9 Wend. 449.) The general rule is that where the same matter is drawn in question in the second suit between parties or privies to the first, the court will order payment of the costs of the first suit before they will suffer the second to proceed. {Jack- son V. Edwards, 1 Cow. 138.) But where the complaint in an ac- tion brought by a single plaintiff to recover one-third of a farm has been dismissed, and a second action to recover the whole farm is brought by several plaintiffs, including the former, claiming as heirs at law, the second action cannot be regarded as between the same parties or their privies, nor for the same premises. {Ten Broech v. Reynolds, 13 How. 462.) The fact that the plaintiff has added a new cause of action in the second suit will not so materially cliauge the ground as to destroy the identity of the two causes and deprive the defendant of the right to this relief {Ripley v. Benedict, 4 Cow. 19) ; nor will the fact that the fira action was brought in another court of this State {Taylor v. Vanderooort, 9 Wend. 449 ; Ferhins v. Hinrnan, 19 Johns. 237. But see Demarest v. Wynkoop, 2 Johns. Ch. 461; Kerr v. Davis, 7 Paige, 53 ; Davis v. Dujjie, 5 Duer, 688 ; S. C, 3 Abb. 363), or in a Federal court held within the State {Jackson v. Carpenter, 3 Cow. 23), affect the right though it is otherwise where the first suit was brought in another State or country. {Julio v. Ingalls, 15 Abb. 429.) 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 payment by the order, or if no time is fixed, within ten days after service of a copy of the order, all proceedings on the part of the party re- quired to pay them, except to review or vacate the order, are stayed until payment without further direction of the court, unless the adverse party elects to waive the stay. (Code of Civ. Pro., § 779 ; Phipps V. Carman, 26 Him, 518 ; Thaule v. Frost, 1 Abb. N. C. 298 ; Lyons v. Muratt, 54 How. 23 ; S. C, 4 Abb. N, C. 13 ; llazsard v. Wilsony 3 id. 50.) effect of the stay is not to render all subsequent proceed- ings of the party in default absolutely void, or to deprive the 84 Trial Practice. Other actions pending for the same cause. court of jurisdiction when set in motion by the party resting under the stay. The only effect is to render the subsequent proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. {Wassels v. Boettcher, 142 N. Y. 212.) The Code provides expressly under what circumstances the non-payment of costs, directed by an order, shall stay proceed- ings, and an order directing a stay more extensive than that provided by law is unauthorized. {Fiest v. Mayor, 15 App. Div. 495-) Other actions pending for the same cause. — Where two .■^uits are commenced and are at issue in this state (See Fuller v. Reed, 15 How. 236; S. C, 6 Duer, 697), and the subject of the action of both suits and the parties are the same, and the entire relief demanded and sought for in the one case can be obtained in the other, the one last brought will be stayed. (.Burlingamev. Parce, 12 Hun, 149; McCarthy v. Peake, 18 How. 138; S. C, 9 Abb. 164; Dolbeerv. Stout, 139 N. Y. 486.) But a court is not authorized to stay proceedings in one cause until the determin- ation of another cause pending in another court where the party against whom the stay is sought is neither a party nor privy in' such other action, and would not be bound by an adjudication therein. {Dolbeer v. Stout, 139 N. Y. 486.) The relief will not be granted where the parties to the action are not the same {People V. Northern R. R. Co., 53 Barb. 98; 5. C. affirmed, 42 N. Y. 217), nor where the plaintiff in the one suit is the defend- ant in the other (Botts v. Cosine, 2 Edw. Ch. 583), nor where the subject-matter of the two actions is not identical {Liftchildv. Smith, 7 Rob. 306; Sorley v. Brewer, 18 How. 509), nor unless it appears that the entire relief sought in the one action could be awarded in the other. (People v. Northern R. R. Co., 53 Barb. 98.) Where an action has been brought in another State, and another action for the same relief is brought by the same plaintiff in this State, he may be compelled to elect which he will prosecute and to stipulate to stay proceedings in the other. (Bell w. Donohoe, 62 How. 356; 5'. C, 15 Jones & Sp. 458; Hammond v. Baker, 3 Sandf. 704; Allentown F. and M. Works v. Lcrctz, 16 App. Div. Stay or Proceedings. 85 Miscellaneous cases. 72.) It is altogether within the discretion of the court to stay proceedings in an action here when the same subject matter is in litigation between the same parties in the courts of another state or country. Many cases may arise when the stay should be ordered especially when the foreign court has first acquired juris- diction. But when the application for the stay in the court in this state is not made until the day the cause is set down for trial and the matter alleged as a cause of action in the foreign suit is equally available as a defense in the suit in this state the applica- tion should be denied, {/affray v. Hunter, 8 App Div. 315- A court cannot by order stay proceedings in another court of record. {Deyo v. Morss, 38 St. Rep. 477.) If the latter court is proceeding irregularly the remedy is by application to that court to correct or vacate the proceedings. {Bradley Salt Co. v. Keat- ing, 61 Hun, 251. Mi cellaneous cases. — A stay of proceedings may be ordered pending an appeal from an order or judgment of the Supreme Court (Code of Civ. Pro. § 13S1), or it may be obtained pending an appeal by giving the security required by statute. (Id. §§ 1327, 1352, 1360.) So the death or disability of an attorney fora party may operate for a limited time as a stay of proceedings against the party for whom he appeared. (See Code of Civ. Pro. § 65 ; Hickox V. Weaver, 15 Hun, 375.) Where a plaintiff has wilfully and fraudulently destroyed or withheld written evidence material for the determination of the rights of the parties, his proceedings may be stayed until he shall produce it. {Premo v. Smith, 10 Abb. [N. S.] 90: S. C.,40 How. 480 ; 2 Sweeny, 467.) So where a party has brought an action without leave of court in a case where leave is required, his pro- ceedings in the action may be stayed. (DeGroot v. Jay, 30 Barb. 483 ; 5. C, 9 Abb. 364.) Practice on the motion. — An order staying proceedings in an action may be granted on an ex parte application, upon a motion made upon notice, or it may be contained in an order to show cause. An order to stay proceedings in an action for a longer time than twenty days cannot be made by a judge out of court, except 86 Trial Practice. Practice on the motion, to stay proceedings under a judgment or order appealed from, or where it is made upon notice of the application to the adverse party, or in a case where special provision is otherwise made by law. (Code of Civ. Pro. § 775.) No order to stay a sale under a judgment in partition, or for the foreclosure of a mortgage, will be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney. (Gen. Rule 67; Asinari v. Vclkening, 2 Abb. N. C. 454-) No order, except in the first judicial district, served after the action shall have been noticed for trial, if served within ten days of the Trial Term, shall have the effect to stay the proceedings in the action, unless made at the term where such action is to be tried, or by the judge who is appointed or is to hold such Trial Term, or unless such stay is contained in an order to show cause returnable at the first day of such term, in which case it shall not operate to prevent the subpoenaing of witnesses or placing the cause on the calendar. (Gen. Rule 37.) Where a judge of the Supreme Court has power to stay pro- ceedings in an action, no rule can prevent the operation of his order. {Van Kleek v. Nichols, 63 How. 403.) The Code provides generally that where an order may be made by a judge of the court, out of court and without notice, and a particular judge is not particularly designated by law, it maj* be made by any judge of the court in any part of the State. (Code of Civ. Pro. § 772. See Hullv. Hart, 27 Hun, 21.) The practice on an application for an order to stay proceedings in an action, so far as it is common to all motions, will be found in a subsequent chapter relating to motion practice. When an application for a stay of proceedings is to be made for the purpose of moving to change the place of trial, the moving papers must show that the defendant has used due diligence in preparing the motion for the earliest practical day after issue joined. If this is not shown the motion will be denied. (Gen. Rule 48.) When such order is granted, it will not stay the plaintiff from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. (Id.) (For a form of an order staying proceedings, see Appendix.) Changing Plack of Trial. 87 Statutory provisions as to place of triaU The order, when granted, should be entered in the proper county, and a certified copy should be served upon the attorney for the adverse party. SECTION III. Changing Place of Trial. The proceedings for the removal of an action from the City Court of New York, and from a county court to the Supreme Court for the purpose of changing the place of trial, have already been noticed. (See ante, p. 78.) The Supreme Court, upon the application of either party, may also, and in a proper case must, make an order directing that an issue of fact joined in an action or special proceeding pending in any other court of record, except those above specified, be tried at a term of the Supreme Court in another county, on such terms and under such regulations as it deems just; and thereupon the issue must be tried accordingly. (Code of Civ. Pro. g 218.) In such case the action is not removed to another court, but after trial of the issue, the clerk of the county in which the trial has taken place certifies the minutes, which are then filed with the clerk of the court in which the action or proceeding is pending, and the subsequent proceed- ings in that court are the same as if the issue had been tried therein. (Id.) The Code has provided that certain actions pending in the Supreme Court (See Id., § 991) must be tried in the county in which the sub- ject of the action or some part thereof is situated (Id., § 982) ; that certain other actions must be tried % the county where the cause of action or some part thereof arose (Id., § 983) ; and that all other actions must be tried in the county in which one of tlie parties resided at its commencement, or if neither of the parties are resi- dents, in any county which the plaintiff designates for that purpose in the title of his complaint (Id., § 98J:), liut that if the county des- ignated in the complaint as the place of trial is not the proper county, the action may, notwithstanding, be tried therein, unless the place of trial is changed to the proper county upon the demand of the defendant, followed by the consent of the plaintiff or the order of the court. (Id., § 985.) The various provisions of the Code above cited, fixing the county 88 Trial Practice. Motion to change the place of trial to the proper connty. in which an action " must be tried," in effect, merely point out the "proper county," or in other words, the county in which the venue should be laid in the complaint, and to which the defendant may demand the place of trial to be changed as a matter of riorht if the plainnS does not lay the venue in that coanty. (See Houck v. Lasher, 17 How. 520.) Motion to change the place of trial to the proper county. — The Supreme Court may, by order, change the place of trial of an action pending therein, where the county designated for that pur- pose in the complaint is not the proper county. (Code of Civ. Pro., §987.) To entitle the defendant to move for a change of the place of trial in snch case, he must have served upon the plaintiff's attomej'^, with or before service of the answer, a written demand, made by an attorney who lias appeared for him in the action, that the action be tried in the proper county, specifying the county in which he requires the action to be tried. (Code of Civ. Pro., § 986 ; Van Dyke v. McQuade, 18 Han, 376 ; Hoitck v. Lasher, 17 How. 520 ; Vermont Gent. R. R. Co. v. Northern R. R. Co., 6 id. 106.) (For form of such a demand, see Appendix.) If the plaintiff's attorney does not serve his written consent to the charge, as proposed by the defendant, within five days after service of the demand, the de- fendant's attorney may, within ten days thereafter, serve notice of a motion to change the place of trial. (Code of Civ. Pro., §986.) The plaintiff has five days in which to comply with the demand; and the defendant has ten days after the expiration of that time in which to serve notice of motion, but no longer. {Duche v. Bugalo Grape Sugar Co., 11 Abb. N. C. 255 ; 63 How. 516. But see Clark v. Campbell, i,\\A. 166.) If the demand is made by mail the times for consent and notice are doubled. (Code of Civ. Pro., § 798; Lesser v. Williams, 23 St. Rrp. 396.) The application may be made before answering, though the more common practice is to serve the demand with the answer, and, after waiting the time allowed to the plaintiff to serve his consent, to serve the notice of motion at the earliest day there- after. Under the old Code the defendant was required to serve his demand " before the time for answering expired" (Code of Pro., § 126): but under the new Code the service of the de- Changing Place of Trial. 89 Proper county. mand which 6xes the time within wh'-h the motion for a change of venue must be made is in time if served with the answer, though the time to answer has been extended, or the defendant has been allowed to plead over after a decision overruling a demurrer to the complaint. The demand is in time if it is served with an amended answer. {Penniman v. Fuller & Warren Co., 133 N. Y. 442.) If the defendant desires a stay of proceedings for the purpose of the motion he should apply therefor upon papers showing that he has used due diligence in preparing the motion for the earliest practical day after issue joined. (General Rule 48. See ante, p. 86.) The motion will be based upon the summons and pleadings served, the demand and proof of service, and, if necessary, an affidavit or affidavits setting forth facts showing that the venue is laid in the wrong county. It would seem that an affidavit of merits is not nec- essary upon an application for a change of venue made after the ser- vice of the answer (See Sherman v. Gregory, 42 How. 481), but is necessary upon an appUcation made before answer. (JBingham v. Bingliamh, 1 Civ. Pro. K 166.) This affidavit must be made by the defendant. (Id.; Johnson v. Lynch, 15 How. 199.) And in fact under the old practice it was the general rule that the affidavit upon which the niotioa to change the venue was based must be made by the defendant, though under special circumstances, set forth in the affidavit, it might be made by his attorney. (See note to Brittan v. Peabody, 4 Hill, 61.) If an affidavit of merits has once been filed and served no other is necessary, but such service and filing must be shown by affidavit. (General Eule 23.) The affidavit of merits must show that the de- fendant has fully and fairly stated the case to his counsel (Id. See Onondaga Bank v. Shepherd, 19 "Wend. 10 ; Bleecker V. Storms, 2 How. 161 ; Corey v. Livermore, id. 170 ; Jordan v. Garrison, 6 id. 6 ; Ellis v. Jcmes, id. 296 ; Brownell v. Marsh, 22 Wend. 636 ; Brown v. Hasten, 2 How. 195 ; Fitzhugh v. Truax, 1 Hill, 644 ; Tompkins v. Acer, 10 How. 309 ; Eichmo7id V. Cowles, 2 Hill, 359 ; Riokarts v. Swetzer, 3 How. 413) ; must give the name and place of residence of such counsel (General Hule 23 ; Lynch v. Mosher, 4 How. 86) ; iiinst state that he is advised by his counsel that he has a good and substantial defense upon the ^0 Trial Practice. Motion to change place of trial. merits dd., Meech v. Calkins, 4 Hill, 534; Jackson v. Stiles, 3 Caine, 93 ; Tompkins v. Acer, 10 How, 309. But see Briggs V. Briggs. 3 Johns., 499); and that he believes that he has such a defense. {Lynch v. Mosher, i How. 86.) (For a form of an affida- vit of merits, see Appendix.) This affidavit may be embodied in the affidavit made by the party to change the venue, or may bo made a distinct affidavit. (For form of affidavit to change venue, see Appendix.) The motion must be made at a Special Term held in the judicial district embracing the county named in the complaint as the place of trial, or in a county adjoining the one so named, unless the county so named is within the first judicial district, in which case the mo- tion must be made in that district. (Code of Civ. Pro., § 769 ; £angs v. Selden, 13 How. 163, 37i. And see Moulton v. JBeeaJier, 1 Abb. K C. 193 ; S. C, 52 How. 182.) Copies of all papers to be read on the motion and not previously served must be served with the notice of motion on the attorney for the plaintiff (General Rule 21) at least eight days before the time of hearing. (See Code of Civ. Pro., § 780.) Proof of such ser- vice should also be prepared, unless service is admitted ; and also an order changing the place of trial. All the defendants may join in the motion, although the demand was made by one only. {Sherman V. Grego)^, 42 How. 481.) If all the defendants do not join in the motion, the reason for their not joining should be stated ( Welling V. Sweet, 1 How. 156) ; and notice of the motion should be served upon them unless they give their consent to the change. {Mairs v. -Remsen, 3 Code R. 138 ; Sherman v. Gregory, 42 How. 481, 485.) The plaintiff may oppose the motion, either upon the ground that the moving papers are insufficient or upon the merits. If the proper county has not been designated in the complaint, it will be no answer to a motion, made before issue joined, to change the place of trial to the proper county, that it is impossible to obtain an im- partial trial in that county {People v. Kingsley, 8 Hun, 233), or that the convenience of witnesses requires that the trial should be had in the county named in the complaint {^Hubbard v. National Protection Ins. Co., 1 1 How. 149; Veeder v. Baker, 83 N. Y. 156; Gifford v. Tow7i of Gravesend, 8 Abb. N. C. 246; In- ternational Life Ins, Co. v. Sweet land, 14 Abb. 240 ; Acker v. Leland, 96 N. Y. 383; Park v. Carnley, 7 How. 355); or that Changing Place of Trial. 91 The power of the court to change the place of trial. only one of the defendants served a demand that the place of trial be changed to the proper county, if all join in the motion. {Sherman v. Gregory, 42 How. 481.) A public ofBcer, sued for acts done in virtue of his office, has a statutory right that the trial of the action shall be had in the county where the cause of action, or some part thereof, arose ; and the plaintiff cannot deprive him of this Tight by joining as defendants other parties who could not claim that right. The right is absolute and not a matter of judicial dis- cretion. {People V. Kingsley, 8 Hun, 233 ; Wintjen v. Verges, 10 id. 576 ; Cowen v. Quinn, 13 id. 344.) So where an officer of a corporation is sued for a debt of the corporation on the ground that the officer has signed a false report, the action is penal, and the defendant's right to have the same tried in the county where the cause of action, or some part thereof, arose is absolute. ( Veeder v. £aker, 83 N. Y. 156 ; Taylor v. Attrill, 31 Hun, 132.) The power of the court to change the place of trial, when the county designated in the complaint is not the proper county, is the same whether the issues are of law or fact. {^Christy v. Kiersted, 47 How. 467.) It is the place of trial of the action that is to be changed, and not of a mere issue therein. An issue of law may be tried in any county within the judicial district embracing the county ■wherein the action is triable ; but, after the trial, the decision, and all other papers relating to the trial, must be filed, and the judg- ment rendered mast be entered in the last-named couoty. (Code of Civ. Pro., § 990.) Whether the court will make the order changing the place of trial to the county specified in the demand served upon the plaintiff's attorney will depend upon the regularity and diligence of the de- fendant's proceedings and the sufficiency of the moving papers. If it appears from all the papers presented that the defendant has com- plied with the requirements of the statute and that the county des- ignated in the demand is the " proper county " within the meaning of the Code, the order will be granted as a matter of legal right (Ganz V. Edison El. III. Co., yg Hun, 409; Shepardv. Squire, 76 Hun, 59S); although it may be probable that the court, on a sub- sequent application on behalf of the plaintiffs, may make another order changing the place of trial to some county other than that specified in the demand. The orderly and regular practice in such case is to order the change upon the defendant's motioi^ 9'i Trial Practice. Residence of the parties as affecting the place of trial. and then, if the plaintiff desires to change the place of trial for the convenience of witnesses or upon the ground that an impar- tial trial cannot be had in the proper county, he must make his motion upon afEd^iyitr which the defendant can be prepared tO' meet. The authority given by section 987 of the Code is tO' change the place of trial, not to retain a place of trial upon the grounds specified. {Veeder v. Baker, 83 N. Y. 157.) Where the residence of the parties is material in determining whether the action is brought in the proper county, a question of fact is pre- sented, to be determined from the affidavits read on the motion, A foreign corporation, having an agency and business office in one of the counties of this State, is not a resident of such county within the meaning of section 984 of the Code. (See Interna- tionalLife Assurance Co. v. Sweetland, 14 Abb. 240.) A National bank may be sued in a court of general jurisdiction wherever an individual might be sued for the same cause. {Talmage v. Third Nat, Bank of N. Y., 27 Hun, 61.) But a corporation created'under the laws of this State is to be deemed a resident of the State, and the place of transacting its general business is to be deemed the place of its residence. (Pond v. Hudson River R. R.Co., 17 How. 543; Hubbard v. Nat. Protection Ins. Co., Ii id. 149; Rossie Iron Works V. Westbrook, 59 Hun, 345.) When sued by a non-resident, a domestic corporation has the right to have the trial in the county designated by its certificate of incorporation as the county in which its principal office of business is located. (Duche v. Buf- falo Grape Sugar Co., 11 Abb. N. C. 233 ; 6^ How. 516.) A per- son keeping a boarding-house in a county for some months '\n the year is, during that time, to be deemed a resident of that county for the purpose of section 984 of the Code. (Stacom v. Moon, 13 Weekly Dig. 348.) The object or subject of the action, and whether it falls within, section 982 of the Code, is to be determined by the complaint and not by affidavits. It is the direct object of the action and not its resulting incidents that the statute contemplates; and if the object of the action, as set forth in the complaint, is not within the scope of that section, the defendant cannot bring the case within it by affidavits showing that the success of the plaintiff will incidentally accomplish a result that, if made the direct object of the action^ would entitle him under that section to a change of venue. For Change of Venue from the Proper County. 93 To obtain an impartial trial. example, if the purpose of the action is the cancellation of a satis- faction-piece, and an adjudication declaring the integrity and vitality of a ju(^ment, the court cannot change the venue to a county other than that mentioned in the complaint, upon affidavits showing that, if the plaintiff obtains the relief demanded, the effect or result oi the determination will be to create a lien upon lands situated in such other county. {Kniekerboalcer Life Ins. Co. v. Clark, 22 Hun, 506.) Change of yenue from the proper county to secure impartial trial. — The court may, by order, change the place of trial where there is reason to believe that an impartial trial cannot be had in the proper county. (Code of Civ. Pro., § 9ST.) A cause should not be tried in a locality in which one of the parties has sought to control the general sentiment in regard to the case by repeated appeals throBgh the public press ; and the fact tliat the plaintiff has pursued this course is a sufficient ground for clianging the place of trial. {Movi&on V. Beecher, 1 Abb. N. C. 193 ; S. C, 52 How. 193.) So the place of trial may be changed on the ground of general public excitement in reference to the case in the county where the action is triable, although no attempt has been made to impanel a jury in that county. {Budge v. JSortham, 20 How. 248 ; People v. Wehh, 1 Hill, 179 ; People v. Long Island R. R. Co., 16 How. 106 ; K C, i Park. Cr. 602. But see People v. Wright, 5 How. 23 ; Ifew Jersey Zinc Co. v. Blood, 8 Abb. 147; Bowman v. Ely, 2 Wend. 250 ; Messenger v. Holmes, 12 id. 203.) It is impossible to lay down precisely what shall or what shall not be received as satis- factory proof of pnblic excitement to a degree which may endanger the impartial administration of justice. But when it is shown to «xist, by whatever circumstances, the court will change the place of trial to another county. {People v. Webb, 1 Hill, 179.) This motion should not be made until after issue joined {People T. Kingsley, 8 Hun, 233) ; but it must be made with reasonable diligence thereafter. {Dan-agh v. McKim, 2 Hun, 337 ; S. C, 4 N. Y. Sup. Ct. [T. & C] 569 ; Roffman v. Sparling, 12 Hun, 83 ; Miller V. Palmery 1 How. 54 ; Chapin v. Be Groff, 4 Cow. 554.) ITo demand is necessary as a preliminary to this motion ; no statute determines the county to which the change shall be made, ordered, and the granting or denial of the order is, to a great 94 Trial Practice. Changing place of trial for convenience of wit nesses. extent, within the sound discretion of the court. In other respects what has been already said in respect to a motion to change the place of trial to the proper county applies to this motion. (See ante, p. 88.) In fixing a place of trial, the courts will take into consider- ation the calendars of the courts of the neighboring counties, not only to preserve the rights of the parties to the cause, but also to preserve the rights of other suitors in those courts. (See Moulton V. Beecher, i Abb. N. C. 193; Budge v. Northam, _20 How. 248. See, also, People v. Long Island R. R. Co., 16 id. 106.) Changing place of trial for convenience of witnesses. — The court may, by order, change the place of trial where the con- venience of witnesses and the ends of justice will be promoted by the change (Code of Civ. Pro., § 987), but not for the con- venience of the justice trying the same. (Binghamton Iron Foundry v. Hatfield, 43 N. Y. 224.) A motion to change the place of trial should not be made be- fore issue joined, as, until issue is joined, the court cannot judge what witnesses may be needed. {Merrill v. Grinnell, 10 How. 31; Hinchman v. Butler, 7 id. 462; Hartman v. Spencer, 5 id. 135.) It must be made within a reasonable time after issue joined, or the laches must be satisfactorily excused. {Hofftnan v. Sparling, 12 Hun, 83; Quinn v. Van Pelt, id. 633; Darragh v. McKim, 2 Hun, 337; Lynch v. Mos/ter, 4 How. S6; Miller v. Palmer, i id. 54; Becker v. Town of Cherry Creek, TJ Hun, 11.) The motion should be made upon affidavits showing the nature of the controversy (Gen. Rule 48), the number of the witnesses intended to be sworn on behalf of the defendant {Minor v. Garrison, 4 Johns. 481; Worthy v. Gilbert, id. 492), their names {Anonymous, 6 Cow. 389), and the county {Bleecker v. Smith, 37 How. 28), and the town where they reside ( Westbrook v. Mer- ritt, I How. 195; Cook v. Finch, 2 id. 89; Van Auken v. Stewart, id. 181), though perhaps the latter is not strictly necessary (See Bleeker v. Smith, 37 How. 28), that he has fully and fairly stated the case {Sleeker v. Storms, 2 How. i6i; Gen. Rule 23), and what he expects to prove by each and every of the witnesses {Hem- mingway v. Spaulding, 1 How. 70; Miller v, Ames, id, 55.; Rob- inson V. Merritt, id. 165; Carpenter v. Coniinental Ins, Co^ 31 Change for Convenience of Witnesses 95' AfSdavits on motion for change of venue. Hun, 78), to his counsel, giving his name and place of residence (Gen. Rule 23), and that each and every of them are mate- rial to his defense; as he is advised by his counsel, after such statement made, and verily believes {Anonymous, 7 Cow. 102 ; Constantine v. Dunham, 9 Wend. 431; Johnson v. Rogers, 3 Cow, 14; Anonyvums, 3 Wend. 425; Harris v. Clark, 2 How. 82; Dimon V. Dimon, id. 91; Young v. Arndt, i id. 227; Lansing v. Mickles, id. 248; Carpenter v. Continental Life Ins. Co., 31 Hun, 78. Buc see Anonymous, i Hill, 668; Brown v. Seys, 2 How. 276), and that without the testimony of each and every of them he cannot safely proceed to trial, as he is advised by his counsel, after such statement made, and verily believes. {Anonymous, 3 Wend. 425; Constantine v. Dunham, 9 id. 43 1 ; Carpenter v. Continental Ins. Co., 31 Hun, 78,) These are all essential parts of an affi- davit on which to base a motion for a change of place of trial. {Chapin v. Perrin, 72 Hun, 514.) Where the defendant is himself an attorney and counselor he need not swear to the advice of counsel. {Cromwell v. Van Rensselaer, 3 Cow. 346; Ackermanv. Delude, 29 Hun, 137.) I is at least, advisable to show how the witnesses are material (See' Gen. Rule 48), by stating what facts are expected to be prjvid by each witness so that the court can judge of the m teriality of their testimony (/Vi'c^ v. Fort Edward Water-Works Co., 16 How. 51; People v. Hays, 7 id. 248. See Kelly v. Matham, 2 Week. Dig. 173), and see that the witnesses are not merely cumulative. {Price v . Fort Edward Water-Works Co., 16 How, 51.) In addition to stating the names of the witnesses who will be convenienced by a change of the place of trial, the moving papers should disclose the occupation and the residence bystreet and number of every person designated as a material witness when such person is a resident of a city, as, otherwise, the op- posing party might be unable to ascertain whether such persons were in existence, or to otherwise verify the allegations respect- ing the necessity of calling them as witnesses on the trial. {Lyman v. Gramercy Club, 28 App. Div. 30.) In the first depart- ment it is not sufficient to state in the moving affidavits that the defendant expects to prove certain facts by the witnesses named S6 Trial Practice. Affidavits on motion for change of venae. without stating that the facts can be proved by the witnesses, or disclosing grounds showing that the facts can probably be estab- lished by them. {Thurfjell v. Witherbee, 70 Hun, 401; Imgard V. Duffy, 73 Hun, 255; Lyman v, Gramercy Club, 28 App. Div. 30; McPhailw. Ridout, 83 Hun, 446; White v. Hall, 8 App. Div. 618; Rheinstrom v. Weir, 5 App. Div. 109; Tuska v. Wood, 81 Hun, 79.) But in the third, and apparently in the fourth, departments, while the rule is not enforced in all its strictness, and the absence of the statement of the reasons for the affiant's expectations is not regarded as a fatal defect, still it is a circum- stance which may be considered by the court in determining the merits of the motion. (See Myers v. Village of Lansingburg, 54 Hun, 623; Smith v. Mack, 70 Hun, 517: Bell v. Whitehead Broth- ers Co., 5 App. Div. 555; Gilbert v. Shortsville Cart Co., 15 N. Y. Sup. 316; Sinnit v. Cambridge Valley, etc., Ass'n, 27 App. Div. 318.) In the second department the moving party is not re- quired to aver positively that he can prove the facts by the witnesses named, or to produce the afiidavits of the proposed witnesses, if from an inspection of the moving papers it appears that there is reasonable ground for the expectation of the moving party that he will be able to prove by the witnesses the facts stated, as, for instance, that the witnesses must necessarily know the facts, {Hayes v. Garson, 25 App. Div. 115.) It may be advisable also to swear to merits (See Myers v. Vil- lage of Lansine:burg, 54 Hun, 623 ; ante, p. 94), though, if the plaintifl alleges in his counter-affidavits facts tending to show that the defense expected to be established by the defendant's wit- nesses has no real existence, the court will not try this question and pass upon the merits of the issues upon ex parte affidavits. {Wiggin V. Phelps, 10 Hun, 187.) No demand is necessary to lay the foundation of this motion and none need be alleged. (Hinch- ■man v. Butler, 7 How. 462.) The affidavit may show where the cause of action or defense, or both of them arose, and this will be taken into consideration by the court in fixing the place of trial. (Gen. Rule 48. See Bull v. Babbitt, i How. 184.) Too much care cannot be exercised in preparing these affidavits, as the strict rules established by the decisions will be enforced upon the appli- Chancse for Convenience of Witnesses. 97 The venue will not be retained for convenience of witnesses in another state, cation. {Carpenter v. Continental Ins. Co., 31 Hun, 78; Chapinv. Overin, 72 Hun, 514; Noye Mfg. Co. v. Whitmore, 23 Week. Dig. 424.) A motion to change the place of trial for the convenience of witnesses must be made by all the defendants who defend, unless some reason is shown why all do not join. {Sailly v. Hutton, f) Wend. 508 ; Legg v. Dorsheim, 19 Wend. 700; Welling v. Sweet, 1 How. 156; Lyman v. Gramercy Club, 28 App. Div. 30. See Sherman v. Adirondack R. Co. 92 Hun, 39.) The motion should be made in the judicial district embracing the county designated in the complaint or in a county adjoin- ing it. {Bangs v. Selden, 13 How. 163.) Notice should be given and the motion papers served as on ordinary applications to the court. The plaintiff may oppose the motion by showing an equal or greater number of material witnesses residing in the county where the venue is laid. It was the established practice, under the old system, to grant a motion of this kind unless the plaintiff showed an equal or greater number of witnesses in the county where the venue was laid. {Austin v. Hinckley, 13 How. 576; Olmstead v. Jones, I id. 254; Wood v. Bishop, 5 Cow. 414; Kilbourn v. Fair- child, 12 Wend. 293.) But since parties are allowed to state the facts expected to be proved by the respective witnesses, the ques- tion of their materiality is presented to the consideration of the court, without regard to numbers stated. {Wiggin v. Phelps, 10 Hun, 187.) The venue will not be retained for the convenience of witnesses residing in another State. {New Jersey Zinc Co. v. Blood, 8 Abb. 147; Canfieldv. Lindley, 4 Cow. 532; Bank of St. Albans v. Knickerbacker, 6 Wend. 541 ; Peet v. Billings, 2 id. 282.) The convenience of expert witnesses is not to be considered in deciding the question as to changing the place of trial. {Adri- ance, Piatt &■ Co. v. Coon, 1 5 App. Div. 92 ; Bushnell v, Durant, 83 Hun, 32.) And as a general rule, the court, in considering an application of this kind, will look to the county where witnesses reside, rather than the distance they will have to travel. {People V. Wright, 5 How. 23; Hull v. Hull, i Hill, 671. See Jordan v. 98 RIAL Practice. Where the manifest object is delay. Garrison, 6 How. 6 ; Goodrich v. Vanderbilt, ^ id. 467.) But where witnesses reside within a mile of the place where it is sought to have the trial take place, they are not to be disregarded in deter- mining the place of trial because they do not reside in the same county. {Mason V. Brown, 6 How. 481.) If it appears on the hearing that the number of material witnesses required by each side is about the same and that they will not be greatly incon- venienced by attending the trial of the action in either county, the trial should be held in the county where the cause of action arose. (Hausmann v. Moore, 7 App. Div. 459 ; Payne v. Eureka Electric Co. 88 Hun, 250; Goodrich v. Vanderbilt, 7 How. 467; Adriance, Piatt &■ Co. v. Coon, 15 App. Div. 92 ; Peck v. Parker, 15 Week. Dig. 142. StQ Jordan v. Garrison, 6 How. 6; Goodrich V. Vanderbilt, 7 How. 467 ; Zenner v. Dexter, 92 Hun, 195.) Where it appears that the motion is an attempted fraud upon the practice of the court it will be denied with costs ; as for example, where a defendant, in an action for a conspiracy in obtaining goods by false pretenses, swears to one hundred and sixteen wit- nesses to prove the good character of a co-defendant. ( Wallace V. Bond, 4 Hill, 536.) So where the defendant's manifest object is delay, and the plaintiff outnumbers him in witnesses {Kilbourru V. Fairchild, 12 Wend. 293), or where an incredible number of witnesses are sworn to by the defendant {Romeyn v. King, 2 How. 130; Freeman v. King, 3 id. 10), the motion will be denied with costs. On the other hand, if it appears that the witnesses sworn to Ijy the plaintiff are material only upon a question of value or handwriting, which can as well be proved by witnesses residing in the county to which it is sought to change the place of trial, the motion will be granted. {Benedict v. Hibbard, 5 Hill, 509 ; Weed v. Halladay, i How. 73.) The plaintifJ may sometimes defeat a motion to change the venue by stipulating not to give any evidence as to facts occurring in the county where the venue is laid {Smith v. Averill, i Barb. 28), or to bear all the expense of bringing defendant's witnesses to the county where the venue is laid {Worthy v. Gilbert, 4 Johns. 491 ; narrower v. Betts, 2 Cow. 496), though, as the motion is for Change for Convenience of Witnesses. 99 The ends of justice mast be considered in making the change. the convenience of the witnesses and not for the purpose of saving expense to the party, the latter offer should never be regarded. (Rathbone v. Harman, 4 Wend. 208.) The court may direct a change of the venue although the plaintiff offers to admit the main questions upon which the witnesses, for whose convenience the change is sought, are claimed to be material. {Metropolitan Life Ins. Co. v. M'Coy, 12 Week. Dig. 100.) In determining a motion to change the place of trial for the convenience of witnesses there are considerations to be taken into account other than the number of necessary witnesses of the parties. The distance to be traveled has now come to be a mat- ter of small moment. It is very unusual to change the place of trial from the country to the city. {Tutkill v. Long Island R. R. Co., 75 Hun, 556.) If the venue is laid in Westchester it will not be changed to New York. [Brink v. Home Ins. Co., 2 App. Div. 122); or if it is laid in Queens it will not be changed to New York for the convenience of witnesses, though it may be so changed for the reason that the parties reside and the cause of action arose there. {Navratil v. Bohm, 26 App. Div. 460.) Both the convenience of witnesses and the ends of justice must be considered in making the change. (Code of Civ. Pro., § 987.) The court will consider the calendars in the two counties, and other things being equal, give the preference to that county in which a speedy trial can be had with the least prejudice to the rights of other suitors. (See Abrahams v. Benson, 22 Hun, 605; Tutkill V. Long Island R. R. Co., 75 Hun, 556.) The Code has provided that actions of a certain kind must be tried in the county where the cause of action arose or where the subject of the action is situated and that every other action must be tried in the county in which one of the parties resided at its commencement. But all these provisions are subject to the right which by section 987 of that act is given to the court in a proper case to change the place of trial for the convenience of the witnesses. Where an application is made to the court to change the place of trial on that ground, the county to be selected is the one in which the convenience of the witnesses will be the best subserved, although that may not be one of those 100 Trial Practice. Consolidation of actions. in which the action must be tried pursuant to the other provis- ions referred to. {Herbert v. Griffith, 2 App. Div. 566 ; Gorman V. South Boston Iron Co., 32 Hun, 71.) Proceedings after a change of venue has been ordered. — The Code provides that where the place of trial is changed to another county, the subsequent proceedings shall be had in the county to which the change is made, the same as if it had been designated in the complaint as the place of trial, except as other- wise directed by the court or provided by the written consent of the parties filed with the clerk. The clerk of the county from which it is changed must forthwith deliver to the clerk of the county to which it is changed all papers filed in the action, and certified copies of all minutes and entries relating thereto, which must be filed, entered or recorded, as the case requires, in the office of the last named clerk. (Code of Civ. Pro., § 988.) An order to change the place of trial takes eiifect upon the entry thereof in the office of the clerk of the county from which the place of trial is changed. But for the purpose of the place of hearing of a motion to set it aside, or an appeal therefrom, the place of trial is deemed unchanged. (Id., §989.) The party obtaining the order should have it entered in the office of the clerk of the county in which the venue is laid, procure from the clerk a certified copy, and serve the same upon the adverse party. (See Keep v. Tyler, 4 Cow. 541.) The transfer of the papers is a clerical duty, which in no way affects the operation of the order. {Fisk V. Albany & Susquehanna R. R. Co., 41 How.- 365.) All sub- sequent papers must be filed in the office of the clerk of the county to which the place of trial has been changed. (Rule 2.\ SECTION IV. Consolidation of Actions. Where two or more actions in favor of the same plaintiff against the same defendant for causes of action which may be joined are pending in the same court, the court may, in its discre- Consolidation of Actions. 101 Consolidation proceedings. tion, by order consolidate any or all of them into one action. (Code of Civ. Pro., § 817.) Where one of the actions is pending in the Supreme Court, and another is pending in another court, the Supreme Court may, by order, remove to itself, the action in the other court, and con- solidate it with that in the Supreme Court. (Id., § 818.) Where separate actions are commenced against two or more joint and several debtors in the same court for the same cause of action, the plaintiff may, in any stage of the proceedings, con- solidate them in one action. (Id., § 819.) So where two or more actions brought in behalf of the people upon the same mortgage or other contract are pending against separate defend- ants claiming or defending under the same title, the attorney- general must, upon the request of the defendants, cause them to be consolidated into one action, and only one bill of costs can be taxed against the defendants. (Id., § 1989.) The power to consolidate several actions in the same court under section 817 above cited exists only where it would have been proper to have joined the several causes of action in the same complaint under section 484 of the Code; and even where the power exists the court may, in its discretion, refuse to exer- cise it. Thus the court will not consolidate several actions to foreclose mortgages upon different pieces of property. (Kipp v. Delamater, 58 How. 183; Beck v. Ruggles, 6 Abb. N. C. 69.) And the court has no power to consolidate an action for the partition of lands in one county with an action for the partition of lands in another, where one or more of the parties to one action are not parties to or interested in the subject of the other. (Mayor v. Coffin, 90 N. Y. 312.) Not only must the causes of action be such as might be joined, but the two actions must be brought against the same defendants, (hear v. Daynes, i App. Div. 557.) Several actions brought by different plaintiffs against the same defendants for the same relief cannot be consolidated. [American Grocery Co. v. Flint, 5 App. Div. 263.) But it is no objection to the consolidation of suits that they were brought at different times and that the cause of action in the second suit had not ac- crued when the first suit was commenced. {Carter v. Sully, 28 Abb. N. C. 130; Dunning v. Bank of Auburn, 19 Wend. 23; 102 Trial Practice. Practice on the motion. IBreioster v. Stewart^ 3 id. 441.) Where a plaintifE has commenced successive actions against the same defendant on promissory notes maturing at different times, and the defendant has one valid defense by way of recoupment or counter-claim to all the actions, which will be extinguished or merged in the judgment recovered in either, the defendant may, and for his own protection should, move to consoli- date the actions. {Tuckerman v. Oorhin, 25 Daily Reg., No. 62.) Separate suits for one and the s:ime libel brought against the same defendant in different counties may be consolidated into one. {Percy v. Seward, 6 Abb. 326.) But suits for the same libel, against different defendants, cannot be consolidated. {Cooper v. Weed, 2 How. 40.) Several actions upon one policy of insurance may be consolidated, but not several actions on several policies upon one risk. {Oammayi v. New York Ins. Co., 1 Caine, 114.) Practice on the motion. — • As a preliminary to a motion to con- solidate two or more actions, and for the purpose of affecting the qnestion of costs, the defendant should request the plaintiff to con- solidate the actions. On his neglect or refusal he should prepare the proper affidavits and apply to the court for the order. The motion may be made by the plaintiff as well as by the defendant. {Briggs V. Gaunt, 2 Abb. 77; S. C, 4 Duer, 664.) The proceedmgs to re- move to the Supreme Court actions pending in other ooarts have been already noticed. (See ante, p. 80.) The Code does not specify the time within which the motion should be made, but it would seem, from the decisions under the Revised Statutes, that the motion may be made by the defendant at any time after he has been served witli the complaints in the various suits, though it may bo denied if granting the relief demanded will greatly delay the plaintiff. It is not necessary that the defendant should answer upon the merits before moving. {Brewster v. Stewart, 3 Wend. 441.) The motion may be made upon notice at any Special .Term held in the judicial district containing the county in whicli the venue of either of the suits to be consolidated is laid. (See Percy V. Seward, 6 Abb. 326.) When the defendant moves to consolidate two or more actions be- tween the same parties, he should show that the causes of action are such as may be joined in tlie same complaint ; that the questions which will arise in both actions are substantially the same ; and his affidavit should affirmatively show, either that no defense is intended. Consolidation of AcnoNS 103 Costs. or that the defense will be substantially the same in both actions. (See Campbell Printing Press, etc., Co. v. Lyddy, 1 Civ. Pro.'R. 364; Dunning v. Bank of Auburn, 19 Wend. 23 ; WiUcinson v. Johnson, 4 Hill, 46 ; Dunn v. Mason, 7 id. 154 ; Thompson v. Shepherd, 9 Johns. 262 ; Morris v. Knox, 6 Abb. 328, note ; Crane y. Koehler, id.) It is not enough that the moving papers state upon information and belief that the defense in each suit is substantially the same. The nature of the defense should be disclosed so that the court may determine whether the questions to be litigated are sudi as can properly be disposed of at one trial. (Id.) (For form of affidavit, see Appendix.) If the matters so alleged by the defendant are not successfully controverted by the plaintiff, and it does not appear that he will suffer any great delay or other prejudice, the motion will be granted. {Dvmrwng v. Bank of Avhum, 19 "Wend. 23.) (For form of the order of consolidation, see Appendix.) Costs. — The plaintiff will be ordered to psy costs of the motion if the several actions were commenced at the same time, or under circumstances which evince a disposition to make the proceedings burdensome to the defendant ; and in other cases if the plaintiff, without reasonable grounds of objection, has refused on request to consolidate. [Dunning v. Bank of Avburty, 19 Wend. 23 ; Bank of U. S. V. Stroiuj, 9 id. 451.) If the order for consolidation is granted on the application of the plaintiff, he will be charged with the costs of the discontinued actions down to the order and costs of the motion. {Briggs v. Gaunt, 2 Abb. 77 ; S. 0., 4 Duer, 664.) As a general rule an order for consolidation is a judicial determi- nation that separate suits were originally instituted, without legal necessity, for an improper purpose ; and the costs of the discon- tinued actions cannot be taxed in the costs of the action in which they are consolidated. If special circumstances exist taking the case out of the general rale, the court may grant the order of consolida- ' tion on terms, and tfiereby save to the successful party the costs of the actions which are to be dropped. But unless provision to this effect is made in the order, the party loses his costs as against his adversary. {Blake r. Michigan Southern, etc., P. P. Co., 17 How. 228.) 104 Trial Practice. Severing the action or procuring a separate trial. SECTION V. Severing the Action oe Peocueing a Separate Trial. The Code provides that " a separate trial between the plaintiflE and one or more defendants, of some or all of the issnes of fact, or one trial of some or all of the issues of law, or a change in the order of dis- position of the issues, may be directed by the court in its discretion." Such a direction may be given in an order made upon notice, or except where an application for such order has been denied, it may be given by the judge holding the term where those issaes are regu- larly upon the calendar for trial, either -with or without the entry of an order. (Code of Civ. Pro., § 96T.) It also provides that, " where the answer of the defendant, ex- pressly or by not denying, admits a part of the plaintiffs claim to be just, the court, upon the plaintiffs motion, may, in its discretion, order that the action be severed ; that a judgment be entered for the plaintifE for the part so admitted ; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent pro- ceedings, as if it had been originally brought for the remainder of the claim." (Id., § 511.) It also provides that, " when an issue of law and an issue of fact arise, with respect to different causes of action, set forth in the com- plaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejadice to either party in main. taining the action, or a defense, or counter-claim, with respect to the other causes of action, or in the recovery of final judgment upon the wliolo issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires." (Id., § 1220.) It also provides that, " where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judg- ment, against one or more of the defendants ; and direct that the a,ction be severed, and proceed against the others as the only dofend- aots therein." (Id., § 1205.) In certain cases also the court may direct an action of partition to be severed, after interlocutor^' judgment, where the rights, shares or interests of some of tlie parties, as between themselves, are unascer- tailed or undetermined. (Id., § 15d7.) Severing Action or Procuring Separate Trial. 109 Severing action of ejectment. An order before trial, severingan action of ejectment, may become important where the defendants claim to hold or ocuupy lu severalty distinct parcels of the lands in snit. The Code provides that, " where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that lie and one oi 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 jointl}-, the court may, in its discretion, upon tlie ap- plication of the plaintiff, and npon such terms as justice requires, direct that the action be divided into as many actions as are neces- sary. If the action is not so divided, and it appears, upon the trial that the allegation is true, the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed; and a judgment dismissing the complaint must thereupon be ren- dered in favor of the other defendants." (Id., § 1516. ") But this provision does not apjjly to a case where two or more defendants occupy different apartments in a building (Id., § 1517), nor where one or more of the defendants hold under another defendant, and the plaintiff elects to proceed against the latter subject to the rights and interests of the former. (Id., § 1518.) So where upon the death of a party to an action of ejectment dif- ferent persons succeeded to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are neces- sary ; and that the successor to the title or interest of the decedent, to or in each distinct parcV, be substituted as plaintiff or defendant, as the case requires, in the action relating thereto. (Id., § 1522.) So where the plaintiff seeks to recover damages for withholding the property, and, upon the death of a party, different persons succeed to the decedent's right to or liability for those damages and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, witli the rents and profits thereof accruing after the decedent's death, the other to recover the damages accruing before his death ; and that the suc- cessor in interest of the decedent, with respect to the cause of action 106 Trial Practice. Proceedings on admitted claim. in each action, be substituted as plaintiff or defendant therein, as the case requires. (Id., § 1523.) The provisions of title 4 of chapter 8 of the Code, relating to pro- ceedings upon the death or disability of a party, or the transfer of his interest, are subject to the qualification, when applied to an action of ejectment, that the court may, in its discretion, proceed as prescribed either in that title or in the two sections last cited. (Id., § 1521.) Proceedings on admitted claim. — An application for an order directing a severance of an action where a part of the plaintiff's claim is admitted by the answer is, in one sense, a mere incident of an application to enter judgment for the part admitted, which is a part, and the most important part, of the relief sought. This order may be made where two causes of action are separately alleged in the complaint, and the answer admits one of them by a failure to refer to it in any way and denies all liability on the other. The fact that the defendant has served an offer of judgment for the amount claimed under the admitted cause of action does not preju- dice the application. {Bradhurry v. Winterbottom, 13 Hun, 536 ; Wireman v. Remington Serving Machine Co., 7 Jones & Sp. 314.) The language of the section authorizing this proceeding is broad, and applies with equal force to actions at law and in equity. If in an action to foreclose a mortgage, the defendant does not deny f.ny of the allegations of the complaint, but alleges in his answer that a payment has been made upon the bond and mortgage, the plaintiff inaj^ admit the payment by affidavit and move upon notice for leave to enter judgment for the sum remaining after deducting the payment. {Hall v. Holt, 25 Hun, 277.) To this extent at least the order may bo made where the complaint sets forth a single and entire demand. (See, also, Gi7iet v. Murphr/, 18 How. 411. Btit see Jiussell v. Meacham, 16 id. 193.) The application should be based upon the pleadings, and, if neces- sary to show the right to the relief, upon the pleadings and affida- vits. The usual notice of motion slionld be given to the defendant, stating that an application will be made to' the coiirt at Special Term for an order granting leave to the plaintiff to sever the action, to enter judgment for the part of the plaintiff's claim admitted to be Proceedings to Obtain a Severance in Ejectment. 107 In an action to recover possession of real prop-irtv. just, and if he so elects, to continue the action for the remainder of his claim. (For form of notice, see Appendix.) The defendant may oppose the motion upon any grounds appearing in the motion papers, or in opposing affidavits read by him, furnishing a valid reason why the order applied for should not be granted. The granting of the motion is in the discretion of the court (Code of Civ. Pro., § 511) ; but the application will be regarded witli favor if a part of the plaintiffs claim is clearly and unqualifiedly admitted by the answer. {See Bradburry v. Winterhottom, 13 Hun, 536 ; Wh'emaii v. Mem- ington Seioiny Machine Co., 1 Jones & Sp. 314.) The motion will not be granted if there is any doubt as to the admission. (See Coursen v. Hamlin, 2 Duer, 513 ; Bender v. Sherwood, 15 How. ■258 ; Dolan v. Petty, 4 Sandf. 673.) The order granting the motion will direct that the action be sev- ered ; that a judgment be entered for the part admitted by the an- swer, specifying the part or amount ; and if the plaintiff so elects, that the action be continued with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. It must also prescribe the time and manner of the plaintiff's election. (Code of Civ. Pro., § 511.) (For form of order, see Appendix.) This order should be entered with the clerk as a basis for the judgment to be entered thereon, and a certified copy of the order .should be served on the attorney for the defendant. If the plaintiff elects to proceed with the action he should manifest his election at the time and in the manner prescribed by the order, and may enter judgment upon the order for the sum admitted by the answer. The entry will be " pursuant to the direction of the court, at a term held by one judge," as the order contains the direction. (See Code of Civ. Pro., § 1203.) If the plaintiff elects to continue the action, his right to costs upon the judgment is the same, as if it was taken in an action brought for only that part of the claim. If the plaint- iff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case. (Id., § 511. See Brad- hurry V. Winterhottom, 13 Hun, 536; Hall v. Holt, 25 id. 277.) Proceedings to obtain a severance in ejectment. — Where the plaintiff, in an action to recover the possession of real property, seeks to sever the action, upon the ground that one of several defendants has alleged iu his answer that he occupies in severalty, or that ho 108 Trial Practice. The motion. and one or more of his co-defendants occupy jointly one or more distinct parcels, and that one or more of the other defendants possess other parcels in severalty or jointly, the application must be made to the court at Special Term upon notice to all the defendants. The motion should be based upon the pleadings and upon affidavits showing that the case does not fall within sections 1517 and 1518 of the Code. This application can be made by the plaintiff only. {Hennessy v. Paulsen, 12 Misc. 384.) The motion maybe opposed by the defendants or either of them, and the court may deny it, in its discretion, or grant it upon such terms as justice requires. The order will recite the application by the plaintiff, the papers read upon the motion, and the fact that it was opposed or otherwise, and direct that the action be divided into two or more actions, as the case requires, and will specify the terms, if any, imposed as a condition of granting the order. This order should be entered and a certified copy served upon the attorney for all the defendants, or upon each attorney appearing for the defendants separately. An appffcation for a severance ot the action in a case specilifecf by section 1522 of the Code may be made by any party or person interested in the substitntion of the successor to the decedent's title or interest. The Code is silent as to the persons who shall be entitled to make this application and as to the persons who shall be entitled to notice thereof. But by analogy to the present and former practide in similar cases, and in view of the object of the application, it would seem proper that the successor to the title of a deceased plaintiff to a distinct parcel of the lands sought to be re- covered, should be permitted to make the motion for severance and substitution on notice to the attorneys for the surviving parties and to such other persons not parties as may be interested in the subject of the motion ; that in case of the death of a defendant,, a successor to the title or interest of decedent, in or to a distinct parcel of the property souglit to be recovered, should be permitted to make the application upon a similar notice ; and that in case a successor to a deceased party failed to make the application, that any surviving party should be permitted to make the application on notice to the persons to bo affected thereby. There is nothing- in the Code in conflict with such practice. This nioiion should be made at Special Term and slionld be based uuon adidavits setting forth the pendency, object and stage of the Tender After Suit Brought. 109 Object of a tender. action, the death of the party, the title to or interest of the decedent i"n or claimed' in the property sought to be recovered (But see Boynton v. Hoyt, 1 Denio, 53), the succession of different persons to the decedent's title to or interest in different distinct parcels of such property, stating the names and residences of suck persons, the character and extent of their several interests and the manner in which it was acquired ; and awj other fact calculated to aid the court in determining the number of actions into which the original action should be divided, and who should bo substituted as plaintiff or defendant in the several newly-created actions. The motion may be opposed, and if granted, such terms may be imposed as justice requires. The order will direct that the action be divided into as many actions as are necessary, and that the successor to the title or interest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant, as the case requires, in the action relating thereto. This order should be entered and a certified copy or copies served as in other cases. The practice on a motion under section 1522 of the Code must necessarily be involved in doubt until settled by the courts. The section, though new, was evidently suggested by a somewhat similar provision of the Eevised Statutes (See 2 E. S. 234 [308], § 32), but modified by substituting a motion in the place of a proceeding by scire facias. (See James v. Bennett, 10 Wend. 540 ; Boynton v . Hoyt, 1 Denio, 53 ; 2 BurriU's Pr. 334.) The practice on a motion under section 1523 of the Code (Sec ante,'p. 107) is substantially the same as on the motion jnst noticed, so far as relates to the parties who may apply, the court to which application is made, and the notice to be given. The affidavits and order will, however, be admted to the relief sought upon the motion. SECTION VI. Tender After Suit Brought. Cases frequently occur in which it is apparent from the com- mencement or the action that the plaintiff will recover some judgment against the defendant. In such cases it is incumbent upon the defendant to take such steps as the law authorizes to reduce the amount of the recovery, and to avoid, if possible, liability for the future costs of the action, The Code provides several remedies by which a defendant, in a proper case, may throw the responsibility of further litigating the action upon the plaintiff, and subject him 110 Trial Practice. When a tender is authorized. to liability for the subsequently accruing costs therein. One of these remedies is by a tender after suit. When a tender is authorized. — A tender is authorized by the Code only where the complaint demands judgment for a sum of money only, and then only where the action is brought either to recover a sum certain, oi which may be reduced to certainty by cal- culation ; or to recover damages for a casual or involuntary personal injury, or a like injury to property. (Code of Civ. Pro., § 731.) In the term "personal injury" is included libel, slander, criminal conversation, seduction, malicious prosecution, assault, battery, false imprisonment, or other actionable injury to the person, either of the plaintifE or of another (Id., § 3343) ; but it is evident that the nature of most of these actions would preclude a claim that the injury to the plaintiff was either casual or involuntary. An " injury to property " is defined by the Code as an actionable act whereby the estate of another is lessened, other than a personal injury, or the breach of a contract ; and the word " property " includes both real and personal property. (Id.) An action to foreclose a mortgage is a proceeding in rem, and is not brought for the recovery of money only. A defendant has no right in siich action to make and plead a tender. {Thurston v. Marsh, 14 How. 572 ; S. 0\ 5 Abb. 389 ; Bartow v. Cleveland, 16 How. 364; S. C, 7 Abb. 339; Astor v. Falache, 49 How. 231; Pratt v. Ramsdell, 16 id. 59 ; S. C, 7 Abb. 340, note.) Under the Eevised Statutes a tender could be made only in actions at law, and was not permitted in a suit in equity. (Id.) But in an action for the fore- closure of a mortgage the defendant could obtain a stay of proceed- ings by bringing into court the money due, with costs. This right is preserved by the Code. (Code of Civ. Pro., §§ 1634, 1635.) A defendant in an action in equity may offer to the plaintiff the money, property or relief which he concedes the plaintiff is entitled to, and the offer may properly be considered by the court in deter- mining the amount of costs. (See Stevens v. Veriane, 2 Lans. 90, 93 ; Lockman v. Ellis, 58 How. 100 ; New Yorh Fire and Marine Ins. Co. V. Burrell, 9 id. 398.) But this will not give the defend- ant, as a right, the immunity from costs secured by a statutory tender. When and how made. — Tlie tender provided for by the Code Tender After Suit Brought. Ill Effect of the tender. may be made by the defendant, or his attorney, to the plaintiff, or his attorney, at any time before trial. The tender should be of a sum of money sufficient, in the opinion of the person mak- ing the tender, to make amends for the injury, or to pay the plaintiff's demand, together with the costs of the action to that time. (Code of Civ. Pro., § 731.) To constitute a valid tender the defendant, or his attorney, must produce the money, and actually offer it to the plaintiff, or his attorney, so that he can take it, unless the offer is dispensed with by some positive act or declaration. {Strongv. Blake, 46 Barb. 227; Bakeman v. Pooler, 15 Wend, 637; Dunham v. Jackson, 6 id. 22; Cashmanv. Martin, 50 How. 337.) If the money tendered is not accepted, it must be paid into court, and written notice thereof must be served upon the plaintiff's attorney before the trial and within ten days after the tender. If this is not done, the tender, although other- wise sufficient, will not avail the defendant. (Code of Civ. Pro. § 732.) The mode of paying money into court is regulated by the Code and rules of practice. (See Code of Civ. Pro. §§ 743- 745. See also Taylor v. B. E. R. R. Co., 119 N. Y. 561.) (For a form of notice of payment into court, see Appendix.) Effect of the tender. — Where a tender has been made in a case authorized by the Code, and it appears upon the trial that the sum tendered was sufficient to pay the plaintiff's demand or to make amends for the injury, and also to pay the costs of the action to the time of the tender, the plaintiff cannot recover costs or interest from the time of the tender, but must pay the defendant's costs from that time. (Code of Civ. Pro., § 733.) The plaintiff may accept the money by receiving and retaining the money when offered to him, or by taking out the money paid into court. (See Code of Civ. Pro., § 732.) If he proceeds in the action after accepting the tender, the sum accepted must be deducted from the re>covery, and the judgment rendered for the residue, if any ; and if the tender and acceptance do not appear in the pleadings, a memorandum thereof must be annexed to the judgment-roll. The plaintiff's right to recover costs, and his liability to pay costs to the defendant are determined by the amount of the residue. (Code of Civ. Pro., § 734.) 113 Trial Practice. Offer to liquidate damages. Payment into court under section 732 of the Code, is equiva- lent to an acceptance by the plaintiff of the amount tendered. The money deposited is deemed in law a payment to the plaintiff on account of the contract obligation, or of a conceded liability for the injury. When the moneys are brought into court they become the plaintiffs and it is immaterial as to the question of their ownership what the result of the trial may be. The plaintiff runs the risk in proceeding after a tender or deposit of paying the defendant's costs if the recovery falls short of the amount ten- dered, while the defendant runs the risk of losing that amount of moneys in the event of his success upon the ensuing trial. (^Taylor w. B. E. R. R. Co., 119 N. Y., 561.) SECTION VII. Offer to Liquidate Damages. In an action to recover damages for a breach of contract, the defendant's attorney may, with the answer, serve upon the plain- tiff's attorney a written offer, that, if the defendant fails in his defense, the damages may be assessed at a specified sum. If the plaintiff serves notice that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial, the same must be assessed accordingly. (Code of Civ. Pro.. § 736.) If the plaintiff does not accept the offer he cannot prove it upon the trial. But if the damages awarded to him do not exceed the sum offered, the defendant is entitled to recover the expenses necessarily incurred by him in preparing for the trial of the ques- tion of damages. The expenses must be ascertained, and the amount thereof determined by the judge, or the referee, by or before whom the cause is tried. (Id., § 737.) (For a form of notice of acceptance of the offer, see Appendix.) SECTION VIII. Offer of Judgment. The provisions of the Code authorizing a party to make a tender after suit, and in case the tender is sufificient, exempting him from liability for the subsequent costs of the action, are limited to certain classes of actions, and are available only to the Offer of Judgment. 113' When an o6fer of judgment is authorized. defendant. A broader remedy, more general in its application, by which either party may, in a proper case, either terminate the action, or throw the responsibility and liability lor the costs of continuing it upon the adverse party, is furnished by the provi- sions of the Code relating to offers of judgment, or as it is there termed, offers to compromise. When an offer of judgment is authorized. — The defendant may, before the trial, serve upon the plaintiff's attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. (Code of Civ. Pro., § 738.) So where the defendant sets up a counter-claim to an amount greater than the plaintiff's claim, or suf^cient to reduce the plain- tiff's recovery below $50, the plaintiff may serve upon the defen- dant's attorney a written offer to allow judgment to be taken against him for a specified sum, with costs, or against the defen- dant for a specified sum, and against the plaintiff, for costs. (Id., § 739.) No authority is contained in these provisions of the statute for an offer by one joint debtor or partner in behalf of his joint debtor or co-partner. (Garrison v. Garrison, 67 How. 271 ; Farnsworth v. Halstead, 18 Civ. Pro. R. 227; Rich v. Roberts, 18 Civ. Pro. R. 205. But see Bulger v. Rosa, 47 Hun, 435.) The statute is general in its terms, and the right to make the offer is not limited to any particular class of actions. Its object is to circumscribe and arrest litigation by preventing trials; and the courts refuse to adopt a construction which would, by re- stricting its operation, defeat the object of enactment, and, in effect, engraft upon it an exception which the legislature has not seen fit to make. [Bathgate v. Haskins, 63 N. Y. 261.) The offer may be made in all actions on contract (Id.), but is not limited to such actions. {Bridenbecker v. Mason, 16 How. 203.) The statute applies to equitable actions as well as to actions at law. (Singleton y. Home Ins. Co., 121 N.Y. 644.) The offer may be made without regard to whether the demand is disputed and unsettled or otherwise (Hill v. Northrop, 9 How. =125), and even 114 Trial Practice. The offer. where the efifect of the offer and acceptance will be to enable the plaintiff to obtain a preference in the payment of his debt over a plaintiff whose action was first commenced. (Id. See Beards V. Wheeler, ^6 N. Y. 213.) It may be made even where the object is to avoid the statutory requirements of a confession of judgment. {Trier v. Herman, 115 N. Y. 163.) It maybe made in an action to foreclose a mortgage {Bathgate v. Hasktns, 63 N. Y. 261; Astor V. Palache, 49 How. 231), or a mechanic's lien. {Lutnbard v. Syracuse, etc., R. R. Co., 62 N. Y. 290; Ken- nedy V. McKone, 10 App. Div. 88.) An offer by a plaintiff can only be made where a counter-claim is interposed. The offer. — The offer must be in writing {Dowd v. Smith, 8 Misc. 6ig), and so clear and distinct in its terms that there can be no doubt, uncertainty or misunderstanding in respect to it. {Post V. New York Cent. R. R. Co., 12 How. 552. See Marble v. Lewis, 53 Barb. 432; 5'. C, 36 How. 337; Bettis v. Goodwill, 32 id. 137.) If made by the defendant, it must expressly state that it may be taken with costs, or it will be a nullity. {Ranney v. Russell, 3 Duer, 689.) If made by the plaintiff it may allow judgment to be taken against him for a specified sum, with costs, or against the defendant for a specified sum, and against the plaintiff, for costs. (Code of Civ. Pro., § 739.) It must be unconditional, and leave no fact to be ascertained and deter- mined, to authorize the entry of a judgment. {Pinckney v. Childs, 7 Bosw. 660; 5. C, 15 Abb. 137, note; Coates v. Goddard, 2 Jones & Sp. 118, 128. But se.e Burnett v. Westfall, 15 How. 420.) The offer may be for the full sum demanded in the sum- mon? and complaint {Ross v. Bridge, 24 How. 163; 5. C, 15 Abb. 150), and it should be as broad as the recovery to which the plaintiff is entitled under the admissions in the answer. {Bettis v. Goodwill, 32 How. 137. See Buddv. Jackson, 26 id. 398.) It has been held that the offer need not be for a specific sum, if the amount to which the plaintiff is entitled under the offer may be easily ascertained by the clerk by mere computation. {Burnett v. Westfall, 1 5 How. 420.) Thus an offer to allow judgment for the amount claimed in the summons and complaint, less the amount Offer of Judgment. 115 Requisites of the offer. of two notes set up in the answer, and for costs and disburse- ments, has been held sufficient. (Id.) The offer will be construed most strongly against the party making it; and if, when so construed, it still proves to be so ambiguous, uncertain or indefinite as to leave it doubtful whether it includes an offer of all the relief the adverse party is justly entitled to recover, it will not protect the party making it from liability for the costs of the litigation. {Bettis v. Goodwill, 32 How. 137.) The offer must be subscribed by the party making it or his attorney. If subscribed by the attorney, he must annex thereto his affidavit to the effect that he is duly authorized to make it in behalf of the party. (Code of Civ. Pro., § 740.) An offer sub- scribed by the attorney, and not accompanied by an affidavit of the attorney's authority to make it, is a nullity, and may be wholly disregarded by the party upon whom it is served (McFarren v. St. John, 14 Hun, 387; Riggsv. Way dell, 56 How. 247; S. C. affirmed, 17 Hun, 515; Werbolowsky v. Greenwich his. Co., 14 Abb. N. C. 96.) If the attorney upon whom such an offer is served does not elect to treat it as a nullity, but formally accepts the offer, and annexes to his notice of acceptance the requisite affidavit, and enters judgment, the irregularity is waived, and the record may be amended on application of the parties to the action. Third persons have no right to attack the judgment in such case. (^Citizens' Nat. Bank v. Shaw, 46 Hun, 589.) An offer made by the party in person need not be acknowl- edged or verified. {Pfister v. Stuinm, 7 Misc. 526; Markes v. Epstein, 13 Civ. Pro. R. 293.) (For a form of the offer and affi- davit, see Appendix.) The offer must be served upon the attorney for the adverse party at least ten days before the cause is reached in its regular order on the calendar, or it may be treated as a nullity. {Herman v. Lyons, 2 Abb. N. C. 90; 5. C, 10 Hun, iii; Pomeroy V. Hulin, 7 How. i6i; Walker v. Johnson, 8 id. 240; Hawley v. Davis, 5 Hun, 642; Astor v. Palache, 49 How. 231) Service of the offer and affidavit, if any, may be made by delivering a copy to the attorney for the adverse party. It is not necessary to serve the original offer. {Smith v. Kerr, 49 Hun, 29; Markes v. 116 Trial Practice. Acceptance of the offer. Epstein, 13 Civ. Pro. R. 293.) If the offer is served too late, the attorney upon whom it is served may treat it as a nullity, and need not return it to the adverse party. (Warner v. Babcock, 9 App. Div. 398. If the action is pending before a referee, an offer made within ten days of the beginning of the trial is too late. (Id.) Acceptance of the offer. — If the plaintiff decides to accept the offer of the defendant, he should make his determination known by serving upon the defendant's attorney, within ten days from the receipt of the offer, a written notice of acceptance and should then file the summons, complaint and offer, with proof of acceptance, with the clerk, who will thereupon enter judgment in accordance with the offer. (Code of Civ. Pro., § 738.) The proceedings upon an acceptance by the defendant of the offer of the plaintiff will be the same, except that either party may file the summons, complaint, answer and offer, or copies thereof and proof of acceptance with the clerk, who must thereupon enter judgment in accordance with the offer. (Id., § 739-) The acceptance must be subscribed by the party or his attorney; and if by the latter, there must be annexed to the acceptance the affidavit of the attorney to the effect that he is duly authorized to make it in behalf of the party. (Id. § 740.) (For a form of notice of acceptance of the offer, see Appendix; for form of judgment, see Appendix.) Effect of non-acceptance. — An offer made and not accepted cannot be given in evidence on the trial. (Code of Civ. Pro., §§ 738, 739.) If the offer is made by the defendant, and notice of acceptance is not given by the plaintiff as prescribed by the statute, and the plaintiff fails to obtain a more favorable judg- ment, he cannot recover costs from the time of the offer, but must pay costs from that time. (Id., § 738.) So if the offer is made by the plaintiff, and notice of acceptance i.- not given by the defendant, and the recovery is not more favorable to the defendant than that offered, he will not be entitled to recover costs from the time of the offer, but must pay costs from that time. (Id.. § 739.) Where an action is brought against an insurance company upon the policy of insurance and a mortgagee is made party defend- Offer of Judgment. 117 Amending, withdrawing or renewing offer. ant for the sole purpose of ascertaining the amount of his interest in the policy, as measured by his mortgage interest in the prop- erty destroyed, and no judgment is asked as against the mort- gagee, the company defendant is not bound to include in its offer of judgment costs which the co-defendant may recover against it at the risk of paying costs subsequent to the offer. (Singleton v. Home Ins. Co.. 121 N. Y. 644.) The costs which the party is to pay if he fails to recover a more favorable judgment than that ofTt-r^!^d him are the C05ts accruing subsequent to the offer {Magnitt v. Dinsmorc, 15 Abb. [N. S.] 331; S. C , 46 How. 297; 47 id. u; 3 Jones & Sp. 182; Burnett v. Westfall, 15 How. 430), including disbursements {Magnin v. Dins- more, 15 Abb. [N. S.J 33i)> ^"d whatever extra allowance the court is empowered by the statute to award. {Board of Commis- sioners 0/ Pilots V. Spofford, 49 How. 28; S. C, 3 Hun, 57; 5 N.Y. Sup. Ct. [T. & C] 353.) The offer is to be construed as an offer in the action at the time it was served, (See Lynk v. Weaver, 128 N. Y. 171), and in its then condition. If made by a defendant before answer, it oper- ates upon the plaintiff's claim, but not upon an independent cause of action existing in favor of the defendant; and if the judgment recovered extinguishes a counter-claim pleaded after service of the offer, the plaintiff is entitled to have the extinguishment of the counter-claim considered in determining whether the judgment recovered was more favorable than the offer. (Tompkins v. Ives, 36 N. Y. 7S\ S. C.,z Abb. [N. S.] 267; i Trans. App. 266; Rug- gles V. Fogg, 7 How. 324; Turner v. Honsinger, 31 id. 66. See Bathgate v. Haskin, 63 N. Y. 261.) If the action is brought to recover unliquidated damages, in- terest cannot be added to the sum offered in determining whether the judgment is more than the offer. (Johnson v. Catlin, 57 N. Y. 652.) In other actions it may be added. (Bathgate v. Haskin, 63 id. 261.) It is the judgment and not the verdict which determines the right of costs. (Wallace v. American Linen Thread Co., 16 Hun, 404.) Amending, withdrawing, or renewing offer. — After judg- ment in an action in which the attorney for the defeated party has served an offer of judgment invalid for want of an affidavit 118 Trial Practice. Order for the trial of questions of fact by a jury. of authority to make it, the court cannot allow an amendment of the offer by the annexation of the affidavit nunc pro tunc, with- out also imposing, as a condition of allowing the amendment, permission to the prevailing party to accept the offer. (Riggs v. Waydell, 17 Hun, 515.) On the other hand where the plaintifl, after offer of judgment by the defendant, asks leave to amend so as to increase his demand for judgment in respect to interest, the motion should not be granted without making it a condition of the amendment that the defendant have leave to amend his offer so as to meet the additional amount of interest demanded. {Brooks V.Mortimer, 10 App. Div. 518) The offer may be amended after judgment on motion of the parties to the action. {Citizens' Nat. Bank v. Shaw, 46 Hun, 589.) Where an offer of judgment has been made and not accepted by the plaintiff the defendant may serve a second offer for a dif- ferent amount before the trial. {Hibbard v. Randolph, 72 Hun, 626.) After an offer of judgment has been served it cannot be with- drawn before the expiration of the ten days given to the plaintiff for acceptance. {McVicarv. Keating, \^ h.^-^.'Q'w.t^%\^ And after acceptance, the offer and acceptance constitute a contract which the court cannot set aside on motion, or order or frame an amend- ment of the judgment or offer which would operate to change the contract without the consent of both parties. {Stillwell v. Still- well, 81 Hun, 292.) SECTION IX. Order for the Trial of Questions of Fact by a Jury. In a case where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order may be made for the trial of the issue by a jury, and such an order is the only authority necessary for the trial. (Code of Civ. Pro., § 823.) This procedure is a substitute for the feigned issues resorted to prior to the enactment of the old Code. Whether this procedure shall be resorted to, and the issue sent to a jury for trial, is a matter resting entirely in the discretion of the court. (Id., § 971.) In the exercise of this discretion the court will Order for the Trial of Issues by a Jury. 119 Proceedings to obtain the order. take into consideration the nature and number of the issues to be tried, and if they are so minute, numerous and difiScult, that confusion, mistakes, and disagreement by a jury might reason- ably be expected, a jury trial will not, as a general rule, be ordered. (See Rutty v. Person, 12 Abb. N. C. 352.) This discretionary power of the court to order or to refuse to order the trial of one or more specific questions of fact by a jury exists only where a jury trial is not a matter of right. Where the action is one of those specified in section 968 of the Code of Civil Procedure, a jury trial of all the issues follows, as of course, without any order of the court, unless a jury trial is waived or a reference directed. And in other actions where a party is en- titled by the Constitution or by express provisions of law to a trial by jury of one or more issues of fact, he may obtain an order, upon notice, directing all the questions arising upon these issues to be distinctly and plainly stated for trial accordingly. (Code of Civ. Pro., § 970.) The cases in which a jury trial is a matter of right, and in which it is a matter of discretion, have been sufficiently noticed in an- other chapter. (See ante, p. 56.) Proceedings to obtain the order. — Where a party is not en- titled as a matter of right to a trial by a jury, an order directing that: one or more questions of fact arising upon the issues be tried by a jury, may be made by the court upon the application of either party, or without application. (Code of Civ. Pro., § 971.) Where the action is not triable by jury as of course, but a party has a constitutional or statutory right to a trial by jury of one or more issues of fact therein, and desires such trial, he must apply to the court, on notice to the adverse party, for an order direct- ing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly. (Id., § 970.) The gen- eral rules provide that the party desiring a trial by jury in a case not provided for in section 968 of the Code shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific question of fact involved therein, bs tried by a jury; and that with the notice of motion shall be served a copy of the questions of fact proposed to be submitted co the jury for trial, in proper form, to r?0 Trial Practice. Mode of stating the issues for trial. be incorporated in the order. (General Rule 31.) Although the court may disregard its rule so far as to grant an application not noticed within ten days after issue joined, (See Clark v. Brooks, 26 How. 285; Apelv. O'Connor, 39 Hun, 482), the probabilities are in favor of a denial of the application. (See ante, p 48.) All the issues should be joined in the action before noticing the motion. {Rutty v. Person, 12 Abb. N. C. 352.) The questions submitted to the jury will of course depend upon 'the issues, but they should be so framed that the jury may answer them by a simple yes or no. (See Rutty v. Person, 12 Abb. N. C. 352, 359; Wood\. Mayor, etc., of N. Y., 3 Abb. [N. S.] 467; 5. C, 4 id. 152.) No general or indefinite question should be framed or submitted. (Id.) Upon the hearing of the motion, the court must determine whether the moving party has a constitutional or statutory right to a trial of the issues by a jury, and if he has, must grant the motion ; and if he has not, may grant or deny it in its discretion. Coleman v. Dixon, 50 N. Y. 572 ; Church v. Freeman, 16 How. 294 ; Paul V. Parshall, 14 Abb. [N. S.] 138 ; Knickerbocker Life Ins. Co. V. Nelson, 8 Hun, 21; Rexfordv. Marquis, 7 Lans. 249.) The court or judge may settle the issues or may refer it to a ref- eree to settle them. They must be settled in the form prescribed in sections 823 and 970 of the Code of Civil Procedure (General Rule 31), that is, the questions of fact to be tried must be dis- tinctly and plainly stated in the order for the trial by jury. Issues joined by the pleadings in an action of divorce upon the question of adultery must be settled in the same manner. (Id. See also, Code of Civ. Pro., § 1757 ; Strong v. Strong, 1 Abb. [N. S-] 286; S. C, 3 Rob. 719.) But in an action of partition the issues may be tried upon the pleadings or the court may direct the issues to be stated as above. (Code of Civ. Pro., § 1 544.) (For a form of an order directing a trial of specific questions of fact by a jury, see Appendix ; see, also. Miller v. Wilson, i Barb. 222.) If either party desires to question the form of the issues, he may do so by presenting at Special Term a petition for a rehearing of the order directing them. (Seymour v. McKinstry, 13 Hun, 284.) After the issues have been settled at Special Term, the court at the Trial Term may amend any question submitted, or may sub- mit such additional issues to the jury as the proof demands. Order for Trial of Issues by a Jurv. 121 Proceedings subsequent to the order. {Farmers & Mechanics' Bank v.Joslyn, 37 N. Y. 353 ; Hewlett v. Wood, 62 W. 75.) And after the trial of an equity action by the court at Special Term, and while it remains In its hands under advisement, the coMrt may still, of its own motion, direct certain issues therein to be passed upon by a jury. {Brinkleyv. Brinkleyr $6 N. Y. 192 ; 5. C, 2 N. Y. Sup. Ct. [T. & C] 501.) The rules of court require that the party must give notice of his motion for a trial of issues of fact by a jury within ten days after issue joined, but they do not limit the time within which the court, of its own motion, may direct such trial. Proceedings subsequent to the order.— The refusal of the judge at Special Term to grant a preliminary order settling the issues in a case does not necessarily deprive a party of an absolute existing right of trial by jury. He may still insist upon a jury trial when the cause is brouglit on for trial before the court with- out a jury, {Caiman v. Dixon, 50 N. Y. 572 ; Morrell v. Morrell, 17 Hun, 324.) Where questions have been stated for trial by a jury in a case where such trial is a matter of right, the finding of the jury upon each question so stated is conclusive in the action unless the ver. diet is set aside, or a new trial is granted. (Code of Civ. Pro. § 970.) The verdict may be set aside for the same causes which would justify the court in setting aside any other verdict in an action triable by a jury. The conclusiveness of the verdict of the jury only reaches to questions arising upon those issues as to which a jury trial is a matter of right; and as to all other que*' tions submitted to the jury in the same action the court is at liberty to adopt or disregard the findings. {Lowenthal v. Lowen- thal, 92 Hun, 385.) Where specific questions of fact have been submitted to a jury in a case where neither party could demand such submission as a matter of right, the findings of the jury are not conclusive. Such findings have no greater force or effect than the findings upon a feigned issue under the practice prior to the Code. (SeeSnell v. Loucks, 12 Barb. 385.) The trial of the specific questions of fact by the jury is not a trial of the issue by jury, but is a step in the trial by the court ; and notwithstanding the findings of the jury upon the questions of fact, the fact must still be determined by 122 Trial Practice. Conclusiveness of the findings. the court. The facts found by the jury may or may not be con- trolling in deciding the case ; but whether they are or not, they must be approved by the court before they are made the basis of a judgment, and if approved, they become, by adoption, the find- ing of the court. They may or may not be adopted by the court. The court may set aside the verdict and order a new trial, or find the facts itself and discharge the order, or it may qualify or alter the findings. The findings of the jury are ancillary to the judgment of the court. {See Btrdsa// v.PaUerson, ^,1 N.Y. ^.y, Vermillyea V. Palmer, 52 id. 471 ; Hegeman v. Cantrell, 8 Jones & Sp. 381 : 5. C, 50 How. 188; Wood V. Mayor, etc., of New York, 4 Abb. [N. S.] 152; Clark v. Brooks, 2 id. 385, 406, 407; Lansing v. Russell, 2 N. Y. 563 ; Hatch v. Peugnet, 64 Barb. 189;. Brown v. Clifford, 7 Lans. 46 ; Chapin v. Thompson, 58 How. 46 ; Acker v. Leland, 109 N. Y. 5 ; Carroll v, Diemel, 95 N. Y. 252; Learned v. Tillotson, 97 N. Y. I ; Hammond v. Morgan, 10 1 N.Y. 179; Mad- ison University v. White. 25 Hun, 490; Randall v. Randall, 114 N.Y. 499; MacNaughton v. Osgood, 114 N.Y. 574; Parks v. Andrews, 56 Hun, 391.) If the questions submitted to and answered by the jury together with the facts admitted by the pleadings cover the whole case so that no further facts need be proved for the information of the court, motion may at once be made for judgment. Upon such motion both parties have a right to be heard, and the court may order judgment upon the case as then made, or it may set aside the findings of the jury or use some of them, and it may allow either party to give further evidence. If the motion for judgment is not at once made, it must be brought on upon motion so that both parties may be heard. But if the findings of the jury together with the facts admitted in the pleadings do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a hearing before the court, when it may or may not adopt the findings of the jury, and other facts may be proved, and in such case the court must either make the usual findings of law and fact or file a decision stating concisely the grounds upon which the issues have been decided. {Hammond v. Morgan, loi N. Y. 179.) Proceedings to Refer the Issues. 133 Reference by consent. SECTION X. Proceedings to Refer the Issues. A reference of some or all of the issues in an action may, in a proper case, be ordered upon the consent of both parties, or upon the application of one party and against the will of the other, or upon the motion of the court, and against the will of both parties. (See ante, p. 65.) The cases in which a voluntary or compulsory reference may be ordered have been sufficiently considered. Reference by consent. — Subject to certain exceptions men- tioned in a preceding chapter (See ante, p. 67) , the whole issue, or any of the issues in an action, whether of fact or of law, must be referred upon the consent of the parties, manifested by a writteji stipulation, signed by their attorneys and filed v/ith the clerk. (Code of Civ. Pro., § loi i.) No actual consent of a party to the action is required. The attorney of record has authority, by virtue of his retainer, to bind his client by a stipulation to refer : and a retainer of counsel to make a motion in the cause has been held sufficient authority from his client to consent to a reference although the action is in tort. (Tiffany v. Lord, 40 How. 481). If the stipulation names the referee, the clerk must enter an order of course, referring the issue or issues for trial to that person only. (Code of Civ. Pro., § loii). In such case no application to the court is necessary. {Bell v. Vernooy, 18 Hun, 125). But where the stipulation does not name the referee, he may be designated by the court on the application of either party. (Id.) Notwithstanding the stipulation of the attorney's if the action is brought to annul a marriage or for a divorce, or for a separation ; or if it is brought by any person other than the attorney-general for the dissolution of a corporation, the appoint- ment of a receiver of its property, or the distribution of its prop- erty ; or if a defendant to be affected by the result of the trial of the action is an infant, an application must be made to the court for the appointment of the referee, and if the reference is granted, the court must designate the referee. (Id., § 1012), In such ■cases the court may, in its discretion, grant or refuse the reference notwithstanding the stipulation to refer. (Id.) 124: Trial Practice. Action to aoDul a marriage. The application should be made to the court at a Special Term upon the usual notice, unless such notice is waived. Where the parties are entitled to a reference, as of course upon consent, the pleadings, stipulation, notice of motion, and proof of its service, will constitute the motion papers. (For a form of stipulation, see Appendix). But when the action is brought to obtain a divorce or separation, or to declare the marriage contract void, and the summons and complaint were personally served upon the defend- ant by some person other than the sheriff, the moving papers must also include the proof of such service required by the rules of court. (Gen. Rule 72.) This proof must be in the form of an affidavit of the person making the service, stating his age, or that he is more than twenty-one years of age; when, and at what particular place, and in what manner he served the same ; that he knew the person served to be the person mentioned and described in the summons as defendant therein ; stating what knowledge he had that the person served was the defendant, and the proper person to be served, and how he acquired such knowledge ; and that he left with defendant a copy of the sum- mons and complaint, as well as delivered it to him. (Gen. Rule 18.) Such an affidavit is required where the service was made by a sheriff out of the State, or out of his own county. {Morrell V. Kimball, 4 Abb, 352 ; Farmers Loan & Trtcst Co. v. Dickson, 9 id. 61 ; 5. C, 17 How. 477.) (For form of the affidavit, see Appendix.) If the service is made by the sheriff within his county, in addition to his certificate of service he should make an affidavit that he knew the person served to be the same person named as the defendant in the summons, stating also the source of his knowledge. (Rule 18.) If the action is brought to annul a marriage 011 the ground that the party was under the legal age of consent, the moving^ papers must include an affidavit showing that the parties thereto have not freely cohabited for any time as husband and wife after the plaintiff had attained the age of consent ; or if the marriage is sought to be annulled on the ground that the plaintiff's con- sent was obtained by force or fraud, the moving papers must in- clude an affidavit that there has been no voluntary cohabitation as husband and wife ; or if the marriage is sought to be annulled on the ground that the plaintiff was a lunatic, the moving papers Proceedings to Refer the Issues. lSi5 Irregular consents. must include an affidavit showing that the lunacy still continues, or an affiJavit of the plaintiff that the parties have not cohabited as husband and wife after the plaintiff was restored to reason. (Gen. Rule 73.) Upon the hearing of the motion the court may select a referee suggested by one of the parties or may appoint a person whom neither party has suggesteH, with this qualification, that the court cannot appoint a person as referee to whom all the parties object except in an action to annul a marriage, or for a divorce or separation (Code of Civ. Pro., § 1024; ; and that in such action the court cannot order the reference to a referee nominated by either party, nor to a referee agreed upon by the parties. (Gen. Rule 72.) On a reference by consent, the parties may select any number of referees, not exceeding five ; and where the appoint- ment is made by the court, it may, in its discretion, appoint either one or three. (Code of Civ. Pro., § 1025.) The qualifica- tions of referees will be noticed hereafter. Irregular consents. — The statute contemplates that the con- sent of the parties to a reference shall be evidenced by a stipula- tion signed by their attorneys; but frequently the consent is given in a less formal manner. The old Code provided that any or all of the issues in an action, whether of fact or of law, or both, might be referred " upon the written consent of the parties." (Code of Pro., § 270.) That statute did not require that the con- sent should be signed by the attorneys. Under that statute it was held that where an order of reference, drawn by one party and approved by the other, reciting a consent by the attorneys for both parties, was entered by the clerk in his minutes by the consent of both parties in open court, the requirement of a writ- ten consent of the parties was fully complied with. {Waterman V. Waterman, 37 How. 36. And see Leacroft v. Fowler, 7 id. 259; BiLcklin V. Chapin, 35 id. 155 ; 5. C, S3 Barb. 488 ; Keator v. Ulster Plankroad Co., 7 How. 41 ; Bell v. Vernooy, 18 Hun, 125.) Such a reference would not be a compliance with the re- quirement of the Code of Civil Procedure that the consent of the parties should be manifested by a written stipulation signed by their attorneys. But undoubtedly the parties may now, as formerly, waive the statutory requirement as to the form of the 126 Trial Practice. Application for a compulsory reference. consent by a consent given in open court that a non referable action shall be referred, and by subsequently appearing before the referee and proceeding with the trial without objection to the validity or regularity of the reference. (See Keator v. Ulster and Delaware Plankroad Co., 7 How. \\ ; Bucklin v. Chapin, 53 Barb. 488; 5 C, 35 How. 155; Bell v. Vernooy, 18 Hun, 125; Quinn v. Lloyd, 7 Rob. 157; Saidder v. 6';«(7«', 29 How. 95 ; Lennon v. Smith, 47 St. Rep. 483.) Application for a compulsory reference. — An action is not referable until it is in readiness for trial {Haivkins v. Avery, 32 Barb. 551 ; Wheeler v. Falconer, 7 Rob. 45) ; and so long as the action is not at issue as to any party to the record who is not in default, a motion for a reference will be premature. {Goodyear V. Brooks, 2 Abb. Pr. [N. S.] 296 ; 5 C, 4 Rob. 282; Cochran v. Thurber, 21 St. Rep. 37. See Butcher v. Wilgus, 2 How. 180; Jansen v. Tappen, 3 Cow. 34.) On the other hand, if the appli- cation is unreasonably delayed, the laches of the moving party, if unexcused, will be a ground for denying the motion. {Mayor, etc., of N. V. V. Genet, 6y Barb. 275 ; Wheeler v. Falconer, 7 Rob. 45.) The motion may be made as soon as the cause is at issue, although the adverse party may still have the right to serve an amended pleading. {Enos v. Thomas, 4. How. 290.) An application for a reference is a non-enumerated motion (Gen. Rule 38 ; Conway v. Hitchins, 9 Barb. 378, 386), and must be made to the court at a Special Term (Id.; Scudder v. Snow, 29 How. 95) held within the judicial district in which the action is triable, or in a county adjoining that in which it is triable, un- less the action is triable in the first judicial district, in which case it must be made in that district. (Code of Civ. Pro. § 769.) It must be made upon the usual eight days' notice to the adverse party unless an order to show cause is granted (Id.; § 780 ; Conway V. Hitchins, 9 Barb. 378, 386 ; Gen. Rule 37), and except in the first and second districts and in Erie county the motion must be noticed for the first day of the term or sitting of the court, unless sufficient cause be shown and contained in the affidavits served, for not giving notice for the first day. In courts other than the Supreme Court, the motion may be made on any day designated by the judges for such applications. The notice must b« Proceedings to Refer the Issues. 127 Motion Papers. accompanied with copies of the affidavits and papers upon which the motion is made (Gen. Rule 21), subject to the general ex- ception that pleadings or other papers already served need not be re-served with the notice of motion. (See Gen. Rule 23.) The motion is usually based upon the pleadings and affidavits. The principal object of the motion papers is to establish the fact that the action is referable in its nature, and is at issue. That the action is one in which the court may order a reference of the issues without the consent of both parties should appear from the pleadings. (See mite p. 69. And see Holmes v. Bennett, 28 How. 289.) The court can direct a reference of any referable action on the motion of either party, whenever it is satisfied by legal evidence that the trial of the issues of fact in the action will re- quire the examination of a long account, and the pleadings are legal evidence upon the question ; and when they show that fact the court may direct a reference of the issues. (Id.) A verified pleading is an affidavit within the meaning of that term as used in the Code. (Code of Civ. Pro., § 3343.) References will not be ordered without an inspection of the pleadings, especially where the affidavits served and read upon the motion do not clearly and definitely disclose the nature of the cause of action or defense. (Cuthbert v. Hutchins, 7 App. Div. 251.) In an action for goods sold it may be impracticable to determine from the pleadings alone whether the trial will involve the examina- tion of a long account or not. If no bill of particulars has been served it may be necessary in such action to establish the fact that the examination of a long account will be involved on the trial by the aid of affidavits containing the requisite allegations. {Crawford v. Canary, 28 App. Div. 135.) It is not sufficient that the affidavit used on a motion for a reference alleges in general terms that the trial of the action will involve the examination of a long accoutt. The affidavit should show how and in what way such examination will become necessary. {Kain v . Delano, 11 Abb. N. S. 29; Evans v. Kalbfleisch, 16 id. 13 ; 4 Jones & Spen- cer, 450; Knope V. Nunn, 75 Hun, 287; Cornell v. United States III. Co. 16 N. Y. Supp. 306; Lord v. Connor, 48 How. 95.) Facts must be disclosed either by affidavit or upon the face of the pleadings from which the conclusion can be fairly drawn that so many and distinct items of account will be litigated on the 128 Trial Practice. Opposing the motion for a reference. trial that a jury cannot keep the evidence in mind in regard to €ach of the items, and give it the proper weight and application when they retire to deliberate upon their verdict. {Spence v. Simis, 137 N. Y. 616; Abbott v. Corbin, 22 App. Div. 584.) The affidavit of the moving party or his attorney that the trial of the issues will necessarily involve a long account is not con- clusive, even though there is no opposing affidavit, if the motion is also founded upon the pleadings and bills of particulars. The court can determine that fact from an examination of the plead- ings and bills, as well as the attorney. {Untermyer v. Bienhauer, 105 N. Y. 521 ; Lordv. Connor, 48 How. 95.) The moving papers should include an affidavit that the cause is at issue which may be made by the attorney for the moving party {Holmes v. Bennett, 28 How. 289), though under the old practice it was a settled rule that the affidavit on a motion for a reference must be made by the party, or his omission to make it must be satisfactorily excused. [Wood v. Crowner, \ Hill, 548; Mesick, V. Smith, 2 How. 7 ; Ross v. Beecher, id. 157; Little v. Bigelow, id. 164; Bolton v. McCullough, id. 165.) The affidavit of the moving party need not show that the trial will not require the decision of difficult questions of law [Barber V. Cromwell, 10 How. 351. But see Datte v. Liverpool, etc., Ins. Co., zi Hun, 259); nor need it state where the venue is laid in the cause [Feeter v. Harter, 7 Cow. 478 ; Cleveland v. Strong, 2 id. 448) ; as these are matters of defense to be raised by the adverse party in opposing the motion. Opposing the motion for a reference. — A party may always successfully oppose a motion for a reference by showing either that the action is from its nature non-referable, as for example, that the action is brought to recover a penalty or damages for a tort. (See Hyatt \. Roach, 52 How. 115; 5. C, i Abb. N. C. 125; Wood V. Hope, 2 id. 186 • Hoffman v. Sparling, 12 Hun, 83; Townsend v. Hendricks, 40 How. 143 ; ante, p 69 ; or, if the action is founded on contract, that the examination of a long account will not be necessarily involved in the trial (See Kain v. Delano, ir Abb. [N. S.] 29; ante, p. 68); or, if the action is otherwise referable, by showing that the trial will require the decision of difficult questions of law. {Magoicii v. Sinclair, 5 Daly, 63; Code Proceedings to Refer the Issues. 1S9 Opposing an application, of Civ. Pro. § 10 1 3; Rochester v. Mayor, etc., of New York, 3 How. N. S. 527.) When the reference is opposed upon the ground that the trial will require the decision of difficult ques- tions of law, the party alleging that such questions will arise must present the points of difficulty clearly and distinctly, for the court nnuit be satisfied that they are q'uestions of real diffi- culty. It is not enough that the party or his attorney or coun- sel allege it generally. Patterson v. Stettaner, 7 Jones & Sp. 413; Ryan v. Atlantic Mutual Ins. Co., 50 How. 321; Hibbard V. Commercial Alliance Life Ins. Co., 4 Misc. 422 ; Anony- mous, 5 Cow. 423; L^isher v. Walton, i Caines, 150; Salisbury v. Scott, 6 John. 329; Dewey v. Field, 13 How. 437. See Shaw v. Ayres, 4 Cow. 52.) There is no presumption that such questions will arise, but, on the other hand, there is a presumption to the contrary, which will be conclusive until answered by the oppos- ing party. {Barber v. Cromwell, 10 How. 351. But see Dane v. Liverpool, etc., Ins. Co., 21 Hun, 259.) The application may also be opposed by an appeal to the dis- cretion of the court. If it appears from the papers read in oppo- sition to the motion that the action can be tried in court in a reasonable time, and that a trial by a referee would consume a much longer time and impose a greater burden by way of ex- pense than a trial in court, the application should be denied. {Godfrey V. Williamsburgh City Fire Ins. Co., 12 Abb. [N. S.] 250.) But the defendant cannot successfully oppose an application for a reference by reading affidavits showing that the plaintiff is in- solvent and cannot pay referee's fees, and that the action i.s brought in bad faith. {Place v. Cheesebrough, 4 Hun, 577,) Laches in making the motion (See Mayor v. Genet, 67 Barb, 275 ; Weeler V. Falconer, 7 Rob. 45) may furnish a sufficient ground for oppos- ing a reference; and the insufficiency of the moving papers to show a referable case is always a ground for a denial of the appli cation. Upon the hearing of the motion the court will fi.rst determine whether the case is referable; and if it is clearly referable, the court will then, upon a consideration of all the circumstances of the case, decide whether it will exercise the power conferred of referring the action or will deny the application. If it can be seen that a reference of the action may work a wrong or a hard- 130 Trial Practice. Who may be appointed referee. ship, or will be oppressive upon one of the parties, the court will not grant an order, (See Godfrey v. Williamsburgh City Fire Ins. Co., 12 Abb. [N. S.] 250.) Who may be appointed referee. — When the reference is by consent, and the stipulation to refer names the referee, the order entered by the clerk must refer the issues to that person only. (Code of Civ. Pro., § ion.) If the referee named in the stipu- lation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee unless the stipulation expressly provides otherwise. (Id.) A referee appointed by the court must be free from all just objec- tion ; and no person can be so appointed to whom all the parties object, except in an action to annul a marriage. Or for a divorce or a separation. (Code of Civ. Pro., § 1024. See ante, p. 6^^ The rules of court provide that except in cases provided for by section ion of the Code of Civil Procedure, no person, unless he is an attorney of the court in good standing, shall be ap- pointed sole referee for any purpose in any pending action or proceeding ; nor shall any person be appointed a referee who is the partner or clerk of the attorney, or counsel, of the party in whose behalf such application for such appointment is made, or who is in any way connected in business with such attorney or counsel, or who occupies the same office with such attorney or counsel. (Gen. Rule 79.) If one of the attorneys in the action is acting as referee in another action, the attorney for either partv in the action already referred should not be appointed referee in the other. {Carroll v. Lufkins 29 Hun, 17.) So an attorney who is acting as attorney or counsel for either of the parties in other suits or proceedings should not be appointed referee. (See Stebbins v. Brown, 65 Barb. 272.) A judge of the court of appeals, a justice of the supreme court, or a county judge or surrogate elected since the adoption of the constitution in a county having a population exceeding one hundred and twenty thousand cannot act as a referee (Const. Art. VI , § 20); and a county judge or surrogate, no matter what may be the population of his county, or a judge of any other court, cannot be appointed a referee in an action brought in the court of which he is judge, except by the written consent of the Proceedings to Refer the Issues. 131 Order of reference. parties; and in that case he cannot receive any compensation as referee. (Code of Civ. Pro., § 1024.) No person holding the office of clerk, deputy clerk, special deputy clerk, or assistant in the clerk's office of a court of record within the county of New York, can be appointed a referee, except by written consent of all parties to the action or special proceeding not in default for failure to appear or plead. (Code of Civ. Pro., § 90.) In cases requiring knowledge and skill of some particular trade' or business, laymen skilled in such trade or business are some- times selected by the court to act with an attorney at law as referees. (See Olmsted v. Lewis, 9 N. Y. 423, 430.) And actions brought to recover for services as an attorney and counsel are sometimes referred to two laymen and an attorney to hear and determine. {Hale v. Swinburne, 17 Abb. N. C. 381; 3 How. N. S. 472.) Order of Reference. — An order of reference by consent, en- tered by the clerk on a stipulation naming the referee, should recite or refer to this stipulation and direct a reference of the issue or issues to the person named. (See ante, p. 65.) (For a form of the order, see Appendix.) Such an order need not recite that it was made at any term of court. (See Bell v. Vernooy, 18 Hun, 125.) An order granted on application to the court should be entitled at Special Trial, and should specify all the papers used or read on the motion on either side. (See Gen. Rule 3; see, also, Hobart v. Hobart, 85 N. Y. 637.) It will, of course, direct that the issue or issues be referred to the referee or referees ap- pointed by the court, and briefly indicate, in appropriate terms, the scope or nature of the reference. (For form of the order see Appendix.) If the issues in an action for a divorce on the ground of adultery are referred, by consent, the reference should be to hear and decide the issues, and not merely to take evidence and report the same with the referee's opinion. {McCleary v. McCleary, 30 Hun, 154: Waterman v. Waterman, 37 How. 36; Merrill v. Merrill, 11 Abb. [N. S.] 74; Sullivan v. Sullivan, 52 How. 453; 9 Jones & Sp. 519; Harding v. Harding, 53 How. 238; II Jones & Sp. 27; Lincoln v. Lincoln, 6 Rob. 525.) It is' the business of counsel to see to it that the decision of the 132 Trial Practice. Appeal. court is properly incorporated in the order, and that the order is duly entered with the clerk. {Scudder v. Snow, 29 How. 95.) The order should be entered and the motion papers filed in the jffice of the clerk of the county specified in the complaint as the place of trial. (See Gen. Rules 2, 3; Savage v. Relyea, 3 How. 276.) This is the duty of the attorney for the prevailing party. (Id.; Shults V. Andrews, 54 How. 380.) This being done, he should prepare a copy of the order, indorse upon or annex to it a notice of its entry, and serve the same upon the attorney for the adverse party for the purpose of limiting the time of taking an appeal therefrom. (See Code of Civ. Pro. § 1351.) But it is not necessary to make such service except for the purpose stated, as the adverse party, having had notice of the motion, is bound to know its decision. Moffatt v. Judd, i How. 193.) It is the common practice, however, to serve a copy, with notice of entry, upon the attorney for the unsuccessful party. Notice of the order, if given before its entry, will be ineffectual to limit the time for appeal. {Matter of N. Y. Cent. & H. R. R. R. Co , 60 N. Y. 112; Gallt V. Finch, 24 How. 193.) The notice should be indorsed or subscribed both with the name of the attorney and his office address or place of business. (Gen. Rule 2; Kelly v. Sheehan, 76 N. Y. 325; Langdon v. Evans, 29 Hun, 652; Kilmer v. Hathorn, 78 N. Y. 228.) A certified copy of the order should also be served upon the referee named therein. (See Bonner v. McPhail, 31 Barb. 106.) If he refuses to serve, an application should be made to the court for the appointment of another referee, upon an affidavit showing the appointment and refusal. This motion should be made on notice, and in substantially the same manner as the original application. If, however, the refer- ence was upon consent and expressly limited to a particular referee named in the stipulation, a new stipulation should be entered into in case the referee so named refuses to serve, or if there can be no agreement upon a referee, the cause should be brought to a hearing as if no reference had been ordered. (See ante, p. 66.) Appeal. — A party objecting to a reference must seek his remedy in an appeal from the order directing it. Elliott v. Lewis, 16 Hun, 581.) Procefdings to T^ffer the Isstns. 133 Reference of a part of the issues. Reference of a part of the issues, etc. — The practice upon a motion to obtain a reference to decide one or more of the issues, less than the whole, or to obtain a finding by a referee upon one or more specific questions of fact involved in the issue of a refer- able action under the last clause of section 1013 of the Code of Civil Procedure, or to obtain a reference to take an account, or to determine and report upon a question of fact not arising upon the pleadings, under section 1015 of that act, is so far similar to the practice upon a motion for a reference of all the issues as to need bo separate discussion. The order granting the reference wiH, of course, limit and define the matter referred so that the referee selected may know the precise nature and extent of his powers. (For forms of such orders, see Appendix.) SECTION XI. Procuring a Special Jury. The Code provides that " where it appears to the court that a fair and impartial trial of an issue of fact, triable by a jury joined in an action pending in the Supreme Court, cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury, the court must make an order, upon notice directing a special jury to be struck for the trial of the issue. (Code of Civ. Pro., § 1063.) The cases in which a special jury will be ordered are extremely rare ; and an examination of ihe cases decided under a similar provision of the Revised Stat- utes will show that the courts have generally refused to grant an application for a special jury. (See People v. McGuire, 43 How. 57; Walsh V. Mut. Ins. Co., 17 Abb. 356; 5. C, 2 Rob. 646; Patchin v. Sands, 10 Wend. 570; Pouc her v. Livingston, 2 id. 20/S\ Nesmith V. Atlantic Ins. Co., 8 Abb. 423 ; Hartshorn v. Gelston, 3 Caines, 84.) The triplication has generally been denied upon the ground that the parties have deceived themselves as to the importance and ifitncacy of their cases and in their estimate of the extent of interest which the public at large take in their controversies. From such negative material it is impossible to derive any gen- eral rule as to what facts will justify an order for a struck jury. Each case must be decided with reference to the state of facts presented. If the case itself is not so important as to require a 134 Trial Practice. Application for the order. struck jury, the character of the parties litigant will not make it so. {Hartshorn v. Gclston, 3 Caines, 84.) But where public offi- cers have been libeled for acts done in their official capacity, suits brought by them in vindication of their characters have been deemed important, and struck juries allowed. [Livingston V. Ckeetham, i Johns. 60; Spencer v. Sampson, i Caines, 498; Thompson v. Ramsey, 4 Johns. 482.) But the courts have uni- formly refused to grant an order for a struck jury in an action for libel brought by a public officer unless it appeared that the plain- tiff was libeled for his official conduct in some important public trust. (Id.; VanVechten v. Hopkins, 2 Johns. 373 ; Thomas v. Croswell, 4 id. 4.91 ; Foot v. Croswell, i Caines, 498. See Genei^. Mitchell, 4 Johns, 186. See Adams v. Morgan, 51 St. Rep. 187.) Application for tlie order, — The application for an order direct- ing a special jury to be struck for the trial of the issues in the action must be made upon notice to the adverse party (Code of Civ. Pro., § 1063) served at least eight days before the time fixed for the hearing of the motion (Id., § 7S0), and should be founded upon tbs pleadings ih the action, and upon affidavits showing that the action is ai, issue, and also sotting forth each and every circnuistauce tend- ing to show that a fair and impartial trial of the issues joined in the actiou, cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury. The facts set forth wHl, of course, depend upon the nature of the controversy. If the clerk or other officer, whose duty it is, under the statute, to strike a jury is interested in the action, or is related to either of the parties, or is not indifferent between them, these facts should be stated in the affidavits of tlie moving party, or in the opposing affi- davits, as the foundation for a provision in the order appointing two disinterested persons to strike the jury. (See Code of Civ. Pro., § 1068.) The order. — Where a proper case is made the court must grant the motion. The order must specify the term, and it may specify the particular day in the term when the jurors must attend. (Code ©f Civ. Pro., § 1063.) It may also specify the time when the parties are to attend before the proper officer for the purpose of having the jury struck, or it may direct the officer who is to strike the jury to Procuring a Special Jury. 135 Proceedings under the order. fix a time for the parties to attend before him for that purpose, or it may be silent as to this matter and leave the party obtaining the order to fix the time by the usual notice. (See Code of Civ. Pro., § 1064-.;^ If it appears to the court upon the application thai the clerk, or commissioner of jurors, as the case may be, is interested in the action, or is related to either of the parties, or is not indifferent between them, the order should appoint two disinterested persons to strike the jury. (Id., § 1068.) The court way, in its discretion, in any case, appoint two such persons to strike such jury. (Id.) Proceedings under the order. — Unless the order specifies, or directs the officer who is to strike the jury to fix a time for the parties to attend, the party obtaining it must give at least eight days' notice of the time when he will attend, before the clerk of the county in which the action is triable, or, if it is triable in the city and county of New York, or the county of Kings, before the commissioner of jurors, for the purpose of having the jury struck. (Code of Civ. Pro., § 1064.) At the time appointed, the clerk, or, in his absence, the deputy clerk, or the commissioner, as the case requires, must attend at his office, with the original list of books, filed or kept in his office, as required by law, containing the names of the persons who are then liable to serve as trial jurors ; and, in the presence of the parties, or their attorneys or counsel, must strike a trial jury, as follows : 1. The clerk, deputy clerk, or commissioner, must select from the list or books the names of forty-eight persons whom he deems most indifEerent between the parties, and best qualified to try the issue ; and must make and certify a list of those names. 2. The party, 00 whose application the special jury was directed to be struck, or his attorney or counsel, may then first strike from the list one name ; the adverse party, or his attorney or counsel, may then strike therefrom one name ; and so alternately, until each party has stricken out twelve names. 3. If either party fails to attend at the time and place of striking the jury, or neglects to strike out a name, the clerk, deputy clerk, or commissioner, must strike for him. i. The clerk, deputy clerk, or commissioner, must thereupon make out a list of the names of the twenty-four persons not stricken out, and must certify that it is a correct list of the persons drawn to serve 336 Trial Practice. Foreign jury. as jurors, pursuant to the order of the court. He must immediately deliver the list so certffied, aud a certitied copy of the order, to tiia sheriff of the county. If the list from any ward or town cannot be found, the clerk must make a new list from the ballots then in use for jurors for that ward or town, and must nse that list, upon strik- ing the jury, in place of the original list. (Id., § 1065.) Where persons have been appointed by the court to strike a jury on account of the disqualification of the clerk, or commissioner, from interest, relationship, bias, or otherwise, the persons so appointed must act in the place of the clerk, or commissioner, as the case may be, and for that purpose have all the powers of these officers. (Id.j § 1068.) The sheriff mnst notify the persons whose names are contained in tho list ; and must return the names of those notified to the term at •which they are required to attend, as prescribed by law for notify- ing and returning ordinary trial jurors. (Id., § 1066.) From the persons so notified and attending, a jury must be f ormcl for the trial, and the issue must be tried as prescribed in chapter 10 of the Code of Civil Procedure, with respect to an ordinary jury trial. The court has the same power to excuse or discharge a juror, and to cause additional jurors to be drawn, or talesmen to attend, as upon an ordinary jury trial. But the court may, in its discretion, set aside an additional juror so drawn, or a talesman, upon the objec- tion of either party, without a formal challenge. (Id., § 1067.) The expense of striking a special jury must be paid by the party applying for it, and cannot be taxed in the costs of the action. (Id., § 1069.) When irregularities have occurred in the striking of the jnry. tJ>e court at Special Term may order that jury to be set aside and dis- charged, and that a new jury be struck. {People y. DUlon, IT Hun, 1.) Foreign jury. — Fnder the old practice, now practically obso- lete, an application was sometimes made for a foreign and struck jury, that is, a struck jury from a foreign county ; or in other instances the application was for a struck jury, either from a foreign county, or of the county where the venue was laid; and in other cases the application was in the alternative for a foreign or struck jury. Compelling the Attendance of Witnesses. 137 The subpoena. The practice on the motion, and the grounds upon which the appli- cation was made were substantially the same as on an ordinary motion for a struck jury. The order was granted only in extreme cases. (See Stryker v. Turribull, 3 Caines, 103 ; Patchin v. Sands, 10 Wend. ^10 ; Poucher v. Livingston^ 2 id. 296.) The Code of Civil Procedure recognizes the practice of trying causes by a foreign jury, and provides as to the manner of drawing and notifying the jurors. (See Code of Civ. Pro., §§ 1070, 1071.) A jury drawn as prescribed in the sections above cited is not a struck jury, but tlie grounds uponwhicla the application for a trial by such jury is based, and the practice on the motion is substantially the same as that hereinbefore pointed out. (See ante^ p. io3.) SECTION XII. Compelling the Attendance of "Witnesses. It is one of the first duties of an attorney in the course of his preparation for trial to secure the means of evidence to substantiate his cause of action or defense. This is particularly true where he depends upon oral testimony which may become unavailable through delay. The subpoena. — The attendance of a witness to testify in a cause pending in the Supreme Court may be compelled by the ser- vice upon the witness, in any part of the State in which he may be found, of a subposna issued out of that court. (Code of Civ. Pro., § 7.) A subpcEna is a mandate of the court out of which it issues, and is subject to the general provisions of the Code as to writs or processes issued out of courts of record. (See Code of Civ. Pro., §§ 22-24.) (For the form of a subpoena, see Appendix.) In practice, the attorney for the party who desires the attendance of witnesses upon the trial draws up a subpoena, directed to the witnesses by name, requiring them to attend to give testimony in the cause on behalf of his client, at a time and place specified ; attests it by the name of a judge of the court and the name of its clerk ; and also signs it with his own name as attorney. (See Code of Civ. Pro., §§ 24, 72 ; Ym-Tcs v. Peck, 31 Barb. 350.) The omis- 8ion of the seal, or the use of a wrong seal, or a mistake in the name of the judge or clerk, arc matters of no importance. (Code of 138 Trial Practice. Service of the subpoena. Civ. Pro., § 24 ) The attorney also makes or causes to be made as many copies of the subpoena, or as many tickets containing its sub- stance as there are witnesses to be served. (For form of a subpoena ticket, see Appendix.) Service of the subpoena. — A subpoena is served by exhibiting the original to the witness, by delivering to him a copy thereof 01 a ticket containing its substance, and by paying or tendering to him the fees allowed by law for traveling to and returning from the place where he is required to attend, and for one day's attendance. (Code of Civ. Pro., § 852; Mitscott v. Range, 27 How. 85.) The fees to vrhich the witness is entitled are fifty cents for one day's attendance ; and if he resides more than three miles from the place of attend- ance, eight cents for each mile going to the place of attendance. {Code of Civ. Pro., § 3318.) Unless these fees are paid or ten- dered, the witness is under no obligation to attend, and cannot be punished for non-attendance. {Courteny v. Baker, 3 Denio, 27 ; Muscott V. Runge, 27 How. 85 ; Hurd v. Swan, 4 Denio, 75,) Experts are entitled to the same fees as other witnesses, and no greater. {Matter of Bender, 86 Hun, 570.) Any person may serve a subpoena, but no fees are allowed for making the service. {Wheeler v. Lozee, 12 How. 446. See Towu of Pierrepont v. Love, lass, 4 Hun, 681.) A party may serve a subpoena upon the adverse party, and if he effects a lawful entry into the house of the latter for this purpose, he may- use such force as is necessary to overcome any resistance he may meet with in the service. {Hager v. Danforth, 20 Barb. 16.) If a witness fails to attend at t le time and place specified in the subpoena, the statute provides an ample remedy for compelling his attendance, and appropriate penalties and punishment for his default. (Code of Civ. Pro., § 853.) Proof of service of the subpoena may be made by affidavit of the person making the service showing the time, place and manner of service. \ Habeas corpus to bring up a person to testify. — In the lore- going pages it has been assumed tliat the person whose testimony is desired upon the trial is under no legal restraint preventing obedi- ence to the subpoena. If this is not the case, and the proposed \\^t- Compelling the Attendance of Witnesses, 139 Habeas corpus to bring up a person to testify, ness is a priooiier detained in a jaii or prison within the State, the party desiring his testimon,y should apply for a writ of habeas corpus for the purpose of bringing him before the court to testify. If tlie action is pending in the Supreme Court, the application for the writ may be made either to the court or to a justice thereof. {Code of Civ. Pro., § 2008.) If the action is pending in any other court of record, except a justice's court of a city, the application may be made to the court in which the action is pending, or to a judge of such court, to o.- a justice of tho Supreme Court. (Id. See, also, § m.) The application should be in the form of a veriiied petition, stating the title and nature of the action in regard to which the tes- timony of the prisoner is desired ; the court in which the action is pending ; that the testimony of the prisoner is material and neces- sary to the petitioner on the trial of the action as he is advised by counsel and verily believes ; the place of confinement of the prisoner ; and whether he is or is not confined under a sentence for felony. (Id., § 2012.) If the attorney-general makes the petition he is not re- quired to swear to the advice of counsel. (Id.) The requisites of an affidavit as to advice of counsel have been considered. (See ante, p. 89.) (For a form of a petition for the writ, see Appendix.) The attorney for the petitioner should draw up the writ and pre- sent it to the court or judge with the petition. No notice of the ap- plication is required in civil cases. If the prisoner is under a sentence of death, or confined under any other sentence for a felony, the ap- plication must be denied. (Code of Civ. Pro., § 2011.) If the ap- plication is granted the court or judge indorses upon the writ the word "allowed," with the date of the allowance. (Id., § 1996.) If issued on the application of the attorney-general or a district attor- ney the indorsement of the allowance must state that it was issued on such application. (Id., § 1993.) It should then be signed by the clerk and sealed. The writ of haheofi corpxis to bring up a person to testify belongii to the class styled in the Code " State writs." (Id., § 1991.) If the application was made to the court, the writ must be under the seal of the court. If allowed by a judge out of court, and is returnable before a court of record, it must be under the seal of the court before which it is returnable. When the seal of the S upreine Court is proper 140 • Trial Practice. Procnring the attendance of a witness by subpcena. it may be the seal of the county wherein the writ is awarded or wherein it is returnable. (Id., § 1993.) If the writ is issued upon the application of the attuniey-geiieral or a district attorney, the writ will be entitled in the name of the ])eople of the State of 'New York against the officer or person named as defendant. If it was awarded upon the application of a private person it will be en- titled in the name of the people of the State, " on the relation of," etc.^ naming the applicant. (Id., § 1994.) The time when the writ should be made returnable will depend upon the circumstances of the case, (See Code of Civ. Pro., §§ 1998, 2006.) (For form of the writ, see- Appendix.) The writ should then be delivered to some elector of the State for service, together with the fees allowed by law for bringing up the- prisoner, and the undertaking required by section 2000 of the Code of Civil Procedure. (But see Code of Civ. Pro., §§ 2001, 2002.) The mode of service is prescribed by the statute. (Id., §§ 1999- 2003.) Upon the return day of the writ, the officer upon whom it v/as served must produce the pi-isoner in court, unless the prisoner is under sentence oi deatii, and laaKo his return to the writ stating tor what cause the prisoner is held. (Id., §§ 2013, 2014.) (For form of the return, see Appendi.x.) The prisoner being in court, his testi- mony may be taken when required ; and on its appearing by the return that he is held by virtue of a mandate in a civil action or special proceeding, or by virtue of a commitment upon a criminal charge,, he must be remanded and again committed to the prison from whidi he was taken. (Code of Civ. Pro., § 2013.) Procuring the attendance of a iritness with papers, etc^. by subpcena. — Where a party desires not only to compel the at- tendance of the witness at the trial, but also to compel him to bring with him a book or paper in his possession or under his control, he may ordinarily accomplish this result by the service of a subpoena duces tecum. (See Code of Civ. Pro., § 852.) A subpoena duce» tecum differs from an ordinary subpoena only in the addition of a^ clause requiring the witness to bring with him the books or papers therein specified. (For form of the subpoena, see Appendix.) A party may be compelled to produce a book or paper in his pos- session by a subpoena duces tecum as well as any other witness. {Bonesteel v. Lynde, 8 How. 226, 352 ; Shelp v. Morrison, 13 Iluu,, Compelling the Attendance of Witnesses. 141 Subpoena duces tecum. no; Commercial Bk. of Albany V. Dunham, 13 How., 541; Mitch- elVs Case, i:i Abb. 2-19 ; Central Nat. Bk. v. Arthur, 2 tiweeiiy, 194; Smith v. Macdonald, 52 How. 117 ; S. C, 50 id. 519 ; 1 Abb. ]Sr. C. 350; McOvffin v. Dinsmore, 4 id. 241, 245; People V. Dyohman, 24 How. 222.) But the attorney for a party cannot be compelled to produce in court papers intrusted to him by his client when such production would be a breach of professional pri^- lege. {Jackson v. Denison, 4 Wend. 558 ; Mallory v. Benjamin, 9 How. 419; McPherson v. Rathhone, 7 Wend. 216. And see Jackson v. Burtis, 14 Johns. 391. But see MitcheWs Case, 12 Abb. 219.) But a party and his counsel cannot prevent the produc- tion of papers upon the trial by transferring them one to the other. Such a combination between attorney and client does not come withia the letter or the spirit of the rule protecting privileged communica- tions {People V. Sherif of N. Y., 29 Barb. 622 ; S.C.,1 Abb. 96.) The production upon the trial of books of account of any persoa (Code of Civ. Pro., § 867), or of a book or paper belonging to or under the control of a corporation, rnqv b^ commlled, b\' the service of a subpoena duces tecum. (Id., §868.) But the record of a conveyance of real property, or any other record, or document whereof a transcript, duly certified, may by law be read in evidence, cannot be removed by a subpoena duces tecum from the office in which it is kept, except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk, or by the officer having it in cus- tody to a term or sitting of a court, or a trial before a referee, held in a city or town where his office is situated. (Id., § 866.) If the records are required elsewhere they must be removed un.kr an order of the court obtained for that purpose. (Id.) A subpoena duces tecum must be served in the same manner as any other subpoena. (Code of Civ. Pro., § 852; ante, p. 138.) If it requires the witness to produce a book of account it must be served at least five days before the witness is required to attend. (Code of Civ. Pro., § 867.) If it requires the production of a book or paper belonging to or under the control of a corporation it must be di- rected to the president or other head of the corporation, or to the officer thereof in whose custody the book or paper is. (Id., § 868.) If the object of the party in whose behalf a subpoena issues is merely to secure the production on the trial of a book or paper be- 143 Trial Practice. Procnring the attendance of a witness by order. longing to a corporation, or a record kept in a public office, and its ideiititicatioii wlicu pi'oaiiced witii a scaitiaitiiii. or tue purpose tor which it is used, a subpceiia daces tecum served as above directed will accomplish the desired result. In such case the subpoena will be sufficiently obeyed if the book, paper or record is produced by a subordinate officer or employee of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to tes- tify respecting the purposes for which it is used. But if the per- sonal attendance of a particular officer of the corporation, or of a particular public officer, is required, the party must serve upon him an ordinary subpoena in addition to the subpoena duces teov/m. (Id., § 869.) Procuring the attendance of a witness, with papers, etc., by order. — The cases in which a subpoena duces tecuTih is not the proper process to procure the removal of original records from the office in which they are kept, for the purpose of putting them in evidence on a trial, have been already incidentally noticed. In such cases, the party desiring the production of the original records ranst anplv to the Supreme Court, or a County Court for an order for the removal of the original record to a term or sitting of the court, or a trial before a referee, where the records are required for the purposes of evidence. (See Code of Civ. Pro., § 866.) The application should be made to the court, and not to a judge or justice out of court, upon an affidavit containing a statement of the ;^,endency of the action in which the original record or document is needed as evidence ; the nature of such action ; the time, place and mode of trial ; the neces- sity for the production of the record, and the reason why the pro- duction of the original instead of a transcript is necessary ; the name and official character of the officer having it m custody ; and that no prior application for the order has been made. No notice of the application need be given to the adverse party. If the affi- davit is sufficient the court will make an order specifying that the production of the original record or document is necessary and di- recting its productiou at the trial or hearing by the clerk or officer having it in custody. This order should be entered in the minutes of the court (See Code of Civ. Pro., § 866), and a certified copy should be obtained for serrice on the clerk or officer havinff the Compelling the Attendance of Witnesse?. 143 Procuring the order. custody of the record or document. (For form of the order, see Appendix.) If the personal attendance of such clerk or officer is desired, he should be served with an ordinary subpoena as well as the order. (See Code of Civ. Pro., § 869.) In any case, the wit- ness should be paid or tendered his lawful fees at the tirae of the service of the order. (See Id., §§ 852, 3318 ; ante, p. 80.) The practice above indicated is seldom resorted to as th« cases are rare in which the production of an original record, a transcript whereof may be read in evidence, will become a necessity. The production upon the trial or hearing of a book of account of any person, or of a book or paper belonging to or under the control of a corporation, may be compelled by an order as well as by a sub- poena duces tecum. This order may be made by a judge of the court in which the action is pending, or by a referee duly appointed in the cause and authorized to hear testimony. (Code of Civ. Pro., §§ 867, 868.) The order is obtained upon an ex parte application based upon an affidavit stating the pendency of the action ; the time and place of trial ; the existence of a book or paper, described with all convenient certainty, which the party desires produced upon the trial for the purposes of evidence ; a statement of the name or official character of the person or officer having the book or paper in his custody ; and either that no prior application has been made for an order requiring its production, or it such prior application has oeen made, to what court or judge, what order or decision was made thereon, and what new facts, if any, are dairaed to be shown. (Gen. Eule 25. See Code of Civ. Pro., § 776.) If the affidavit is deemed by the j^idge or referee to present a proper case, an ordCT will be made directing the production of the book or paper on the trial or hearing. (For a form of the order, see Appendix.) *_ r If the book or paper belongs to or is under the control of a cor- poration, the order must be directed to the president or other head of the corporation, or to the officer thereof in whose custody the book or paper is. The order need not be eatered. ^Savage v. Mel- yea, 3 How. 276.) A copy of the order should be made and the original served upon the person having the custody of the book or paper, by exhibiting the original order and the judge's signature thereto, at the same time delivering to the witness a copj;, and pay- ing or tendering him his fees as a witness. (See ante, p. 138.) If 144 Trial Practice. Vacating or modifying the order or subpoena. the attendance of a particular officer of the corporation is required, au ordinary subpoena must be served upon him. (Code of Oiv. Pro., § 869.) Tacating or modifying the order or suhpcena. — A witness served with a subpoena or order requiring him to produce a book of account upon a trial or hearing may at any time obtain an order re- lieving him wholly or partly from the obligation imposed, upon such terms as justice requires, touching the inspection of the book, or any portion thereof, or taking a copy, or extracts, or otherwise. (Code of Civ. Pro., § 867.) If the subpoena was served in good faith, and not for the purpose of annoying the witness, an order should not be made which will in effect deprive the party of the evidence of the books, although they may be numerous, but the court may sub- stitute an inspection, or copies of portions of the books, in place of their production by the witness. {Clyde v. Rogers, 24 Hun, 145.) The order may be made by a judge of the court, or by a referee duly appointed in the cause and authorized to hear testimony. The application for the order must be made upon such notice as the judge or referee prescribes. (Code of Civ. Pro., § 867.) The ordi- nary eight day notice should be given if practicable, or if not, the motion should be based upon an order to show cause. (Id., § 780.) The moving papers will consist of affidavits setting forth the partie- ular facts upon which the witness claims relief from the order or subpoena, and if an order to show cause is obtained, the moving papers must also show the special reasons requiring a shorter notice than eight days. (Gen. Rule 37.) Opposing affidavits may be read upon the hearing of the motion, and such order will be made as will protect the rights of both party and witness. SECTION XIII. Taking the Deposition of a Party or Witness within THE State. Nature and scope of the remedy. — As it is not always prac- ticable to compel the personal attendance at the trial of every person whom a party m^y desire to call as a witness in his behalf, the Code permits the testimony of such persons as cannot attend at the trial to be taken in advance, and to be a/terward read upon Taking Deposition of a Witness Within the State. 145 Nature and scope of the remedy. the trial as a substitute for their oral testimony. This proceed- ing is necessarily subject to many limitations and restrictions designed to prevent its abuse, and cannot be resorted to except !n the cases pointed out by the statute. The Code provides for the taking of depositions to be used in actions pending in certain inferior courts. It also provides for the taking of depositions in actions expected to be brought in courts of record as well as in actions actually pending therein. The provisions relating to expected actions, or to actions in infe- rior courts, will not be considered in this section. The Code also provides that in every action to recover damages for personal injuries, a physical examination of the plaintiff by one or more physicians or surgeons may be ordered on the appli- cation of the defendant. (Code of Civ. Pro., § 873.) Prior to the amendment of the section last cited in 1893 and 1894, the courts had no power to order such examination {McQuigan v. Dei. L. & W. R.R. Co., 129 N. Y. 50 ; Cole v. Fall Brook Coal Co., 87 Hun, 584), and since the amendment the courts have no power to direct a physical examination apart from or indepen- dent of an examination of the plaintiff as a witness before trial. {Lyon v. Manliattan Ry. Co., 142 N. Y. 298.) The remedy may also be employed as a means of obtaining the production and examination or inspection of the books and papers of a corporation. (Code of Civ. Pro., § 872.) The remedy is available in an action pending in any court of record except a mayor's or recorder's court or the justice's court of the City of Albany. (Id. §§ 870, 871.) The deposition of a party to a pending action may be taken at his own instance, or at the instance of an adverse party or of a co-plaintiff or co-defendant. The deposition of a person not a party may be taken upon a written stipulation of the parties, unless the proposed witness is imprisoned under sentence for a felony, or it may be taken under an order made on the applica- tion of either the plaintiff or defendant in a pending action. (See Code of Civ. Pro., §§ 870, 871, 877, 879.) One who has made default in an action by failure to answer cannot be examined as a party on behalf of the plaintiff and igainst his co-defendant. His examination can be taken only as 10 146 Trial Practice. Where to apply for the order. any other witness for special and sufficient cause. {Sliarp v . Hutch- inson, i6 Jones & Sp., loi.) When a corporation is the party to be examined, the examina-. tion is made by taking the deposition of one or more of its offi- cers or directors. (Code of Civ. Pro., § 872,subd. 7.) This does not include the servants, agents, or employees of the corporation. {Reichmann v. Manhattan Co., 26 Hun, 433.) The words "party to an action," include only a party to the record, not a mere party in interest. {Seeley v. Clark, 78 N. Y. 220.) It has been held that where an action is brought against a defendant as treasurer of a joint stock association under section 1919 of the Code, he is not " a party to an action," in the technical sense in which that term is used in section 870 of the Code. {Duncan v. Jones, 32 Hun, 12. See Wayne County Savifigs Bank v. Brackett, 31 Hun, 434. But stQ McGuffin v. Dinsmore, 4 Abb. N. C. 241.) Where to apply for the order. — A person desiring to take the deposition of a party or of a witness before the trial should apply on a proper affidavit or affidavits to a judge of the court in which the action is pending, or, if it is pending in the Supreme Court, to a county judge, for an order directing the examination. (Code of Civ. Pro, § 872.) The application must be made to a judge and not to the court at special term. {Heishon v. Knickerbocker Life Ins Co., 77 N. Y. 278.) In an action pending in the Supreme Court a special county judge may make the order. {Kinney v. Robarts & Co., 26 Hun, 166.) And it has been held that the re- corder of the city of Watertown has power to make the order in an action pending in the Supreme Court. {Babcock v. Balston, 3 How, Pr. N. S. 260.) The application for the order. — A person desiring to take the deposition of a party or witness before the trial of an action then pending, must present to the judge an affidavit setting forth the names and residences of all the parties to the action, and whether or not they have appeared, and if either of them has appeared by attorney, the name and residence or office address of the attorney. (Code of Civ. Pro, § 872, subd. i.) A failure to set forth the residence or office address of the attorney for the moving party is a fatal defect. {Depierris v. Slaven, 74 Hun, Taking Deposition of a Witness Within thh State. 147 The application for the order. 628 ; Van Ray v. Harriott, 30 Hun, jy.) So a failure to state the residence of the party, or that any eflort has been made to ascer- tain it, or that there is any difficulty in learning it, is fatal. {Dunham v. Mercantile Mut. Ins. Co., 6 Abh. N. C. 70.') It is not enough to state that the residence of a party is unknown to the deponent without something to show that unsuccessful inquiry had been made to ascertain it. {Simmons v. Hazard, 65 Hun, 612.) Slipshod and argumentative affidavits will not take the place of the direct allegations required by the statute. {Beach v. Mayor, (4 Hun, 79; Feuchtwanger v. Dessar, 23 St. Rep. 379.) The affidavit must set forth the nature of the action and the substance of the judgment demanded, and if the application is made by the defendant before answer, or by either party after answer, the nature of the defense. (Code of Civ. Pro, § 872, Subd. 2 ; Swain v. Pettingill, 34 St. Rep, 643 ) Someting more than a general statement of the object of the action is required by the statute. Thus, merely to state that the action is brought to reform a mortgage is not sufficient. The grounds upon which the relief is sought must be indicated with reasonable certainty. {Churchman v. Merritt, 51 Hun, 375.) So an allegation that the action is for a recovery under chapter 18, part i. Revised Statutes, is too vague, indefinite and uncertain, and where it is impossible to discover from the affidavit either the nature of the action or the substance of the cause of action no proper case is presented for granting the order. {Boorman v. Pierce, 56 How. 251.) But strictness of the rule governing the granting of an order for the examination of a party before trial will be relaxed when a relation of trust and confidence has existed between the parties to the action. {Carter v. Good, 57 Hun, 116.) In such cases, an affidavit stating the nature of the action and the substance of the judgment demanded will be sufficient in this particular, although it does not state a complete cause of action. {Fatman v. Fatman, 45 St. Rep. 859; Wahie v. McMillan, 2 Misc. 343.) The affidavit must also set forth the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application or the prosecution on defence of such action, and if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries; and 14:6 Trial Practice. The affidavit at the option of the applicant, ttie place where he is sojourning or where he regularly transacts business. (Code of Cir. Pro, § 872, subd. 4.) The general rules of practice provide that when an examination is required under sections 870, 871, 872 of the Code of Civil Procedure, the affidavit shall specify the facts and circumstances which show in confirmity with subdivision 4 of section 872 that the examination of the persons is material and necessary. (Rule 82.) A simple statement in the language of the rule that the examination is material and necessary is but a statement of a conclusion, and is not a compliance with the rule. The judge to whom the application is made is to determine as to the materiality or necessity from the facts stated. {Robertson v. Russell, 20 Hun, 243 ; Wayne Co. Savings Bank v. Brackett, 31 id. 434; Chapinv. Thompson, 16 id. 53; Greer m. Allen, 15 id. 432; Beach v. Mayor, etc., of New York, 14 id. 79 ; 5. C, 4 Abb. N. C. 236; Matter of Bryan, 3 id. 289; Crookev. Corbin,22, Hun, 176; Corbett v. De Comeau, 5 Abb. N. C. 169 ; Hale v. Rogers, 22 Hun, 19: Leary v. Rice, 15 App. Div. 398; Abbott Downing Co., v. Faber, 87 Hun, 299 ; Britton v. Macdonald, 3 Misc. 514; Bank of Pittsburgh v. Murphy, 45 St. Rep. 824; Swift v. Mayer, 28 St. Rep, 582 ; Spero v. West Side Bank, 27 St. Rep, 29 ; Golin v. Town of Mooers, 28 St. Rep, 213.) Even where the facts stated show that the testimony sought is material and necessary, as re- quired by the rule, the affidavit should contain an allegation to that effect to comply with the requirements of the statute. {Matter of Gains, 15 Misc. 75.) The Code also requires that the affidavit shall set forth " that the person to be examined is about to depart from the State, or that he is so sick or infirm as to afford reasonable ground to be- lieve that he will not be able to attend the trial ; or that other special circumstances exist which render it proper that he should be examined as prescribed in this article. But this subdivision does not apply to a case where the person to be examined is a party to the action." (Code of Civ. Pro. § 872, subd. 5.) The exception of parties contained in the last clause of subdivision 5 of section 872, above quoted, was inserted to exempt the party from the restrictions of that subdivision, and a party complying with the other requirements of the statute may perpetuate his own testimony by an examination before trial without stating Taking Deposition or a Witness Within the State 149 The affidavit. special circumstances requiring such procedure, such as a state- ment that he is so sick or infirm as to afford reasonable ground for belief that he will not be able to attend the trial. {Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354.) It is apparent from an inspection of subdivision 5 of section 872 and of section 882 of the Code, that the testimony of one not a party, and con- nected with the action only as a witness, can be taken only to preserve the evidence for the trial as against the sickness or absence of the witness. The application should show that the witness is about to depart from the State ; or that he is so sick or infirm as to afford reasonaWe ground to believe that he will not be able to attend the trial, or that some " other special circum stances " exist requiring his examination in advance. The "other" circumstances evidently mean such as will make the presence and evidence of the witness at the trial doubtful and uncertain, and relate to his personal condition and purposes as bearing upon the probability of his future attendance. {Town of Hancock v. First National Bank, 93 N. Y. 82; Knowlton v. Ban- nigan, 11 Abb. N. C. 419.) Not only must it be shown on the application that the examination of the witness is material and necessary, but it also must be made to appear from the facts presented that there are reasons why the testimony should be given prior to rather than at the trial. {Abbott-Downing Co. v. Faber, 87 Hun, ?99; Fiske v. Smith, 9 App. Div. 208.) The courts have almost uniformly required the same facts to be shown where a party applies for an order for the examination of his adversary heiore trial {Wi//iams V. Fo/som, 52 Hun, 68; Lewischn Brothers v. Muller, 6 App. Div. 459, 463; Fisk v. Smith, 9 App Div. 208; Jenkins v. Putnam, 106 N. Y. 272; Britton v. Macdonald. 3 Misc. 514; Bigler v. Duryee, 73 Hun, 556; Blennerhasset v. Stephens, 36 St. Rep. 195), or have vacated the order when granted on affidavits which failed to show such reasons. (Id.) The affidavit should also set forth any other fact necessary to show that the case comes within either sections 870 or 871 of the Code ; and if the party sought to be examined is a corporation, the affidavit must state the name of the officers or directors thereof, or any of them whose testimony is necessary and mate- rial, or the books and papers as to the contents of which an examination or inspection is desired. (Code of Civ. Pro., § 872, 150 Trial Practice The aflSdavit may be made by the moving party, his attorney, or a third person. subd. 7. See Sterne v. Metropolitan Tel. Co., 19 App. Div. 316.) Where the party or other person to be examined is confined in a prison or jail within the State under a sentence for a felony, that fact must be stated in the affidavit. (Code of Civ. Pro., § 877.) So if special circumstances exist making it necessary that the services of the order for examination should be made more than twenty or less than five days before the time fixed for the examination, such circumstances should be shown in the affida- vit. (Id., § 873.) So if it is desired to examine a nonresident of the State in an)' county other than that wherein he is served with a subpoena, the special reasons therefor should be stated in the affidavit. (Id., § 886.) The existence of the facts concerning which the examination is sought must be alleged in the affidavit. An allegation that the moving party desires to prove such facts i.s insufficient. {Kirkland v. Moss, 11 Abb. N. C. 421. But see Greismann v. Dreyfus, 4 Civ. Pro. R. 32.) It must appear from the affidavits read on the motion that the moving party intends to use Ihe testimony upon the trial. (IVil- liams \ . Folsom, 52 Hun, 68; Leary v . Rice, 15 App^ Div. 397; Spero V. West Side Bank, 27 St. Rf-p. 29.) But it is not essen- tial that the moving party should allege in so many words that he intends to read the testimony upon the trial if such intent may be fairly inferred from all statements contained in the moving papers. {St. Clair Paper Mfg. Co', v. Brown, 16 App. Div. 317; Foggy. Fisk, 30 Hun, 61; Green v. Middlesex R. R. Co., 10 Misc. 473; Ball V . Evening Post Pub. Co., 12 Civ. Pro. R. 4; McCoon v. White, 60 How. 149.) The affidavit may be made by the moving party, by his attor- ney, or by a third person. {Corbett v. De Comcau, 4 Abb. N. C. 252; Railway Age, etc., v. Pryibil, 18 Misc. 561.) It may be made on information and belief {Drake v. Weinman Sf Co., 12 Misc. 65 : Leach v. Haight, 34 App. Div. 522), but if the affida- vit is so made by the party it must state the sources of informa- tion and grounds of belief, {fiminez v. Ward, 21 App. Div. 387), and if made by the attorney, must also state the reason for not producing the affidavit of the party. {Hale v. Rogers, 22 Hun, 19; Cook V. New Amsterdam Real Estate Ass'n, 8$ Hun, 417; Matter of Branson, 78 Hun, 351 ; Simmons v. Hazard, 65 Hun, Taking Deposition of a Witness Withih th« Stats. 151' How far the order U discretioaaty. 6i2.) Knowledge derived from the allegations of the complaint is sufficient (Id.) and an affidavit of the plaintiff's attorney sup- ported by allegations in tne complaint read on the application is also sufficient. {Horion v. Barnes, t^^ St. Rep. 2io.) It is advisable that the affidavit be made by the party when practica- ble. See Simmons v. Hazard, 58 Hun, 119; Ziegler v. Lamb, 5 App. Div. 47.) The application should not be made before issue joined when not made for the purpose of pleading. {Lewisohn Brothers v. Muller, 6 App. Div. 459.) The application not being made on notice should conform to the rules of practice on ex parte applications, and the affidavit should state whether 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. (Rule 25.) A failure to comply with this rule is at most an irregularity, and does not compel the judge to refuse the order or to vacate it if granted. {Bean v. Tontulle, 24 Hun, 353; Skinner v. Steele, 88 Hun, 307; Woaster v. Bate- man, 4 Misc. 431.) How far the order is discretionary. — The Code provides that " the judge to whom such an affidavit is presented must grant an order for the examination if an action is pending." (Code of Civ. Pro., § 873.) This imperative declaration has given occa- sion for many conflicting decisions. In some cases it has been held that this section renders it obligatory upon the justice to whom the affidavit is presented to grant the order, provided the facts required by section 872 are stated and appear in the affida- vit. ( Webster v. Stockwell, 3 Abb. N. C. 1 15; Ludewig v. Pariser, 4 Abb. N. C. 246; Corbett v. DeComeau, id. 252; Sweeney v. Stur- gis, 24 Hun, 162. See, also, Harrold v. New York, etc., R. R. Co., 21 id. 268; Code of Civ. Pro., § 877; Watts v. Wilcox, 43 St. Rep. 417.) On the other hand, it has been held that a party has no abso- lute right to an order for an examination in every case where his application is formally correct ; that the courts and judges have a right to examine the facts, and the object of the examin- ation sought, and to deny the motion or set aside an order as 152 Trial Practice. When the motion may be denied or vacated if granted. improvidently granted, if it appears that the examination is not wanted for the purposes recognized as proper by the Code ; and that the compulsory language of section 873 of that act is not conclusive. {Chapin v. Thompson, 16 Hun, 53; Beach v. Mayor, etc., of Neiv York, 14 id. 79. See Greer v. Allen, 15 id. 432; Jenkins v. Putnam, 106 N. Y. 272; Lichtenstein v. Lichtenstein, 6 Misc. 629; Wahle v. McMillan, 2 Misc. 343.) It would seem from the cases that the judge ro whom the application is made should deny the motion if the affidavit fails to disclose the facts required by the statute to be inserted therein, and should grant the motion if the moving papers comply with the requirements of the statute, leaving the party prejudiced by the order to his motion to vacate it on notice and upon afl&davits disproving the prima facie case made by the affidavit of the party seeking the examination. (See Sweeney v. Sturgis, 24 Hun, 162 ; Levy v. Loeb, 5 Abb. N. C. 157 ; Hardy v. Peters, 30 Hun, 79.) Where the application is for the examination of a person or party confined in a prison or jail within the State under a sen- tence for a felony, the granting or refusing of the order is always in the discretion of the judge. (Code of Civ. Pro., § 877.) When the motion may be denied or vacated if granted. — Unless the application for the examination of a party or wit- ness before trial is based upon such an application as the statute requires, it may and should be denied. (Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278; Matter of Attorney- General. 21 Misc. lOi ; Balcom v. Adams, 18 St. Rep. 13.) The plain intention and spirit of the Code is to permit such an examination only where the testimony of the party or witness is material and necessary to the moving party for use on the trial of the action. It is not the intent of the statute to permit such examination for the purpose of enabling the moving party to prepare for trial. Therefore, an order for the examination of a party may be denied, or if granted may be vacated, where the moving papers show that the sole object of the examination is to furnish the moving party with information to enable him to look up witnesses to be used against his opponent (Beach v. Mayor, etc., of N. Y. 14 Hun, 79; Chapin v. Thompson, 16 Hun, 53 ; Weston V. Reich, 48 Hun, 320; Douglass v. Meyer. 48 St. Rep. 401) or to Taking Deposition of a Witness Within the State. IS* Contents of the order. secure admission that will dispense with the necessity of procur- ing witnesses to prove the fact {Broad Street Nat Bajik v. Sin- clair, 40 St. Rep. 691), or to discover the testimony which an adverse party may be able to give in support of his action or defense so as to enable the moving party to prepare to meet and answer the testimony {Fourth Nat. Bank v. Boynton, 29 Hun, 441 ; Adams v. Cavanaugk, 37 Hun, 232; Wallace v. Wallace, 19 Week. Dig. 495 ; Schepmoes v. Bousson, i Abb. N. C. 481 ; Leary V. Rice, 15 App. Div. 397), or where the action is founded upon fraud and deceit, and an examination of the defendant is sought for the purpose of establishing the frauds charged against him {Andrews v. Prince, 31 Hun, 233 ; Yamato Trading Co. \. Brown 27 id. 248) ; or where it is apparent from the moving papers that every issue, upon which the testimony of the party is shown ta be material and necessary, involves matters, and those only, in respect to which he is privileged upon the ground that his an- swers, if favorable to the, moving party, would subject him to a criminal prosecution, or render him infamous, or subject him to a penalty or forfeiture. {Kinney v. Roberts & Co. 26 Hun, 166 ; Skinner v. Steele, 88 Hun, 307; Abbott-Downing Co. v. Faber, 87 Hun, 2q9. See Corbett v. DeComeau, 5 Abb. N. C. 169; Brandon Manuf Co v.. Bridgman, \\ Hun, 122 ; PhcBnix v. Dupuy, 2 Abb N. C. 146. But see Canada Steamship Co. v. Sinclair, 3 Civ. Pro. R. 284.) But if there are other matters respecting which the party is not privileged as a witness, the order should be granted and the party left to assert his privilege on the examination. {Kinney v. Roberts & Co., 26 Hun, 166; Davenport Glucose Mfg. Co. v. Tausig, 33 Hun, 32; Farmes v. Nat. Life Ass'n, 73 Hun, 522 ; Sprague v. Butterworth, 22 Hun, ^02; Fogg v. Fisk, 30 Hun, 61; Skinner V. Steele, 88 Hun, 307.) Contents of the order. — Where the person to be examined is a party to a pending action, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined. (Code of Civ. Pro., § 873.) There is no rule of law, however, requiring such designation and limitation. A party may, in the discretion of the judge to whom the applica- tion is made, have a general examination before trial of his adver- sary as a witness in the cause, and such examination is not as of 164 Trial Practice. Contents of the order. course to be limited to an affirmative cause of action or to the aiSrmative defense set up in favor of the moving party. (Herbage v.City ofUtica, 109 N.Y. 81.) Ordinarily the courts will limit the examination to such facts as are material to the cause of action or defense of the party seeking the examination. {^Adams v. Cav- anaugh, 37 Hun, 232.) If the action is brought to recover damages for personal inju- ries, the court or judge in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper. If the defendant in such action presents to the court or judge satisfactory evidence that he is ignorant of the nature and extent of ihe injuries complained of, the court or judge shall order that such physical examination be made, and if the party to be examined shall be a female she shall be entitled to have such examination before physicians or surgeons of her own sex. (Code of Civ. Pro., § 873.) The right of a female plaintiff in such action to have the examination by a physician or surgeon of her own sex is absolute and the order for examination should so provide without a special application. {Lawrence v. Samuels, 17 Misc. 559.) As the order for a physical examination cannot be made independent and apart from the examination of the plain- tiff as a witness before trial (Lyon v. Manhattan Ry. Co., 142 N.Y. 298), and as that order can only be granted by a judge (Heishon v. Knickerbocker Life Ins. Co., TJ N. Y. 278,) the provision of the Code in respect to the direction by the court in such case seems inoperative. The order must require the party or person to be examined to appear before the judge or before a referee named in the order for the purpose of taking the examination at a time and place therein specified. The order must also direct the time of the service of a copy thereof which must be made within the state not more than twenty nor less than five days before the time fixed for the examination, unless special circumstances mak- ing a different time of service necessary are shown in the affidavit, Taking Deposition of a Witness Within the State. 155 Service of the order. and that fact is recited in the order. (Code of Civ. Pro,, § 873. Set Bowev. Brumbauer, 13 Misc. 631 ; Balcom v. Adams, 18 St. Rep. 13.) In the first judicial district the order must be made returnable 'before the justice assigned to hold the special term for the trans- action of ex parte business, unless made returnable before a ref- eree or commissioner under express statutory authority. This is required by the rules adopted by the appellate division for the regulation of the special terms of the Supreme Court in the first judicial district. (See Rule 5.) If the party or other person to be examined is confined in a prison or jail within the State under a sentence for felony, the appointment of a referee to take his testimony is in the discretion : of the judge; and the order must require the production of the prisoner, by the person in charge of the prison or jail, it the prison or jail ; but it may prescribe such regulations and restrictions with respect thereto as the judge deems proper. (Code of Civ. Pro., § 877.) If the person to be examined is a resident of the State, the place specified in the order should be within the county in •which such person resides, or in which he has a regu'ar office for the transaction of business in person. (See Code of Civ. Pro., §886; Gustafv. American Steamship Co., ^i Hun, 95 ; Hesse v. Brings, 13 Jones & Sp. 417 ; Marsh v. Woolsey, 14 Hun, i.) If he is not a resident of the State, the place specified should be within the county where he is served with a subpoena unless special reasons are stated in the affidavit requiring a different direction. (Code of Civ. Pro., § 886.) (For form of the order, see Appendix.) The order need not be entered, but should be filed with the ■clerk within ten days after the deposition is taken- and certified by the judge or referee. (Code of Civ. Pro., § 880.) If not filed within that time, the defect may be cured by an order granting leave to file it nunc pro tunc. (See Bank of Silver Creek v. Brown- ing, 16 Abb. 272.) Service of the order. — The party obtaining an order for the examination of a witness before trial, should prepare the neces- sary copies of the order and of the affidavit upon which it was granted, and proceed to serve the same within the time fixed by ■the order. If the examinatiou is to be taken before a refc?ree a 156 Trial Practice. — ^ ^ — . ^ , ,_ Vacating the order. copy of the order should be served upon that officer in order to secure his presence at the time and place fixed by the order, if for no other purpose. A copy of the order and affidavit musr be served upon the attorney for each party to the action in like manner as a paper in the action, or, if the party has not appeared in the action, a copy of the order and affidavit must be served upon him as directed by the order. (Code of Civ. Pro., § 875.); The mode of making such service is sufficiently indicated by the general provisions of the Code. (See Code of Civ. Pro,, §§ 796— 802; Tebo V. Baker, 16 Hun, 182.) Service must also be made upon the party or other person whose examination is to be taken- and this service must be personal, as disobedience to the order will render the person served liable to punishment for contempt. Such service should be made by delivering a copy of the order and of the affidavit to the party or person required to attend, at the same time showing him the original order and the judge's signature thereto, and paying or tendering him witness' fees at the rate prescribed by law in an action in the Supreme Court. (Code of Civ. Pro., § 874 ; Tebo v. Baker, 16 Hun, 182 ; 77 N. Y. 33; Loop V. Gould, 17 Hun, 585 ; Freiberg v. Branigan, 3 Abb,. N. C. 121 ; Riddle V. Cram. id. 117, note; Wood v. Krai, id. 122 ; Mayer v. Noll, 56 How. 214.) If the party or person so served fails to obey the order, his attendance may be compelled, and he may be punished in like manner and the proceedings thereon are the same as if he failed to obey a subpcEna issued out of the court in which the action is pending. (Code of Civ. Pro., § 874.} Vacating the order. — If the party to be examined is satisfied that the order for examination has been improvidently issued, or that for any reason the case is not one wherein an order for examination is authorized by the Code, the remedy is by an. application for an order vacating the order for examination. How or where this application shall be made depends upon the circumstances of the case. The order to vacate may be made without notice by the judge who made the order for examina- tion, or it may be made upon notice by him or by the court. (Code of Civ. Pro., § 772. See Hamilton v Hudson, 17 St. Rep. 611.) If a modification of the order is sought, it may be advisable to apply to the judge who granted the order, as there Taking Deposition of a Witness Within the State. 157 The oral examination. may be a question as to the power of the Special Term to mod- ify an order of this nature. {Balcom v. Adams, 15 Civ. Pro. Rep. 198. But see Sewell v. Butler, 16 App. Div. 77, 80.) If the motion to vacate is to be based upon affidavits, it should be made upon notice to the adverse party, and copies of the affida- vits should fae served with the notice of motion. Where the order for examination has been made in a case authorized by the Code, the court will not vacate it on the affi- davits of the party to be examined that he can give no informa- tion if an examination is had. [Davis v. Stanford, 37 Hun, 531; Matter of Nolan, 70 Hun, 536; Wallace v. Reinhart, 11 Misc. 519.) And an order for the physical examination of the plain- tiff in connection with an oral examination will not be vacated upon the affidavit of the plaintiff of his belief that the order was procured by the defendant to annoy and harass him. {Sew- ell V. Butler, 16 App. Div. jj.) A party who evades service of an order for his examination will not be heard on an application to vacate it. {Dudley v. Press Ptti. Co^ 58 Hun, 181. The cases in which an order for examination may be denied, or vacated if granted, have been considered. (See ante, p. 152.) On vacating an order for the examination of a party on ac- count of the insufficiency of the moving papers, the court may, in its discretion, grant leave to apply for an order for such exam- ination by a new application on proper affidavits upon payment of costs of motion, and such leave is almost a matter of course. (See New York Press Club v. Loyd, 12 Misc. 210.) There is no statute or rule of practice requiring the party to obtain leave of the court before applying for a second order where the previous order was vacated for insufficiency of the moving papers. (Skin- ner V. Steele, 88 Hun, 307.) But where the motion to vacate is based upon the insufficiency of the papers upon which the order for examination was made, and is denied, a second application to vacate the order upon the merits and based upon additional affidavits cannot be made without leave of court. {Shec/ia?i v. Carvalho, 12 App. Div. 430.) The oral examination. — Upon proof by affidavit that service? of a copy of the order and of the affidavit has been duly made 158 Trial Practice. Examination of a party subject to same rules as if examined upon the trial. as directed in the order, the judge or referee must proceed at the time and place specified in the order to take the deposition of the witness. He may from time to time adjourn the examina- tion to another day and to another place within the same county. (Code of Civ. Pro., § 876.) A resident of the State cannot be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business, in person ; and a non-resident cannot be required to at- tend in any county other than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs. (Id., § 886; Hesse v. Briggs, 13 Jones & Sp. 417; Marsh v. Woolsey, 14 Hun, i; Gustafw. American Steam- ship Co., 31 id. 95.) The examination of a party is subject to the same rules as if he was examined upon the trial. The judge or referee upon every other examination must insert therein every answer or declaration of the person examined which either party requires to be inserted. The deposition when completed must be care- fully read to and subscribed by the person examined, must be certified by the judge or referee taking it, and within ten days thereafter must be filed in the office of the clerk (See Code of Civ. Pro. § 3343, subd. 4), together with the stipulation or order under which it was taken, the affidavit upon ivhich the order was granted, and proof of service of a copy of the order and of the affidavit. If, upon an examination before a re!eiee, the person examined refuses to answer any question, the referee must report the fact to the court or judge, v/ho must determine whether the question is relevant, and whether the witness is bound to answer it. (Id., § 880.) The statute also provides that a party refusing without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper which he was directed to bring by the terms of the order, or to subscribe his deposition after it has been correctly reduced to writing, may be committed to jail, there to remain until ha submits to do the required act or is discharged according to law. (Id. §§ 856-858, 876.) Where the examination is before the judge it is not necessary that he should write down the questions and answers in person. It is sufficient that the examination is correctly reduced to writ- Taking Deposition of a Witness Within the State. 150 The physical examination. ing in his presence ; that he sees that it contains every thing that either party has the right to require ; that it is duly read over to and subscribed by the witness; and that the judge administers the proper oath to the witness and appends the proper certifi- cate. {McDonald V. Garrison, i8 How. 249; S. C, 9 Abb. 354. See Clark v. Brooks, 26 How. 254; Foster v. Bullock, 12 Hun, 200.) All mzre formal objections to questions should be taken upon the examination or they will be deemed to have been waived. (Hebbard v. Haughian, 70 N, Y. 54.) And if the witness refuses to answer a proper and material question the examination pre- sents the proper opportunity to the party prejudiced by the refusal to secure his rights. (See Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 77; Vilmar v. Schall, 61 id. 564.) But objections to the competency or credibility of the witness, or to the relevancy or substantial competency of the questions put to him, or of any answer given by him, may be made upon the trial as if the witness was then personally examined, and without being noted upon the deposition. (Code of Civ. Pro., § 883.) (For form of deposition, see Appendix.) The phy^ical examination. — If the order for the examinatioo of the plaintiff in an action to recover damages for personal injuries includes a physical examination as well as oral tbe examination will proceed according to tbe directions contained in the order. If the plaintiff is a female the examination by the physician will not be conducted in the presence of the referee or the defendant's attorney. The physician conducts the exani- ination privately, not in the interest of either party, but as the servant of the court. The inquiry should be thorough and impartial, and not confined to mere observation of external marks of injury or disease, but should be supplemented by means of questions and answers as to cause, nature, charac- ter and extent of the disability. After the completion of the examination the physician may be examined orally before the referee as to the plaintiff's condition. The plaintiff is bound to appear before the referee and answer all proper questions with respect to the nature and extent of the injuries, whether framed by the medical expert from the ex- amination had, or by the counsel present. The testimony of the IGO Trial Practice. Depositions taken by consent. plaintiff is taken by the referee as upon an examination before trial. {Lyon v. Manhattan Ry. Co., [42 N. Y., 298; Bell v. Litt, 12 App. Div. 626 ; Lawrence v. Samuels, 20 Misc. 15 ; Wunsck v. Weber, 31 Abb., N. C, 365.) Depositions taken by consent. — The parties to an action may stipulate in writing that the deposition of a competent witness, to be used therein, may be taken before a judge or referee, at a time and place specified in the stipulation, either orally or upon interrogatories agreed upon in like manner, unless the person whose examination is desired is confined in a prison or jail within the State under a sentence for a felony. (See Code of Civ. Pro., § 879.) Although the section cited refers in ter.iis to the depo- sition of " a competent witness," there seems to be no good reason why it should not be construed to include a party who is a competent witness, either in his own behalf or in behalf of the adverse party, and is not confined in a jail or prison within the State, under a sentence for a felony. A party may waive any provision of law in his favor in respect to the trial of a civil action and may stipulate that his testimony may be taken before trial out of the county in which he resides or has an office for the transaction of business. But when a person not a party is to be examined, the stipulation must specify a place within the county in which the witness resides or has an office for the regular transaction of business in person, or in case of a non-resident, within the county in which he is served with a subpoena. (See Code of Civ. Pro., § 886.) If the examination is to be taken upon interrogatories, they should be reduced to writing and attached to or otherwise made a part of the stipula- tion. (For a form of stipulation, see Appendix.) The attendance of the witness is compelled by a subpoena in the same manner as if his attendance was required upon a trial (See ante, p. 137); and the judge or referee may take his deposi- tion as if an order had been made by the court directing it to be so taken. (Code of Civ. Pro., § 879.) The mode of talcing a deposition under an order has been sufficiently noticed. (See ante, p. 158.) The authority of the judge or referee to act is to be found in the stipulation of the parties and the provision of the Code authorizing the taking of depositions upon stipulation. Taking Deposition of Witness Without the State. 16] Various remedies given by statute. No order of any kind is contemplated by the statute, and nc order appointing a referee in pursuance of the stipulation is re- quired or authorized. The deposition must be properly signed and certified and, together with the stipulation under which it is taken, must be filed with the clerk (See Code of Civ. Pro., § 3343, subd. 4) within ten days thereafter. (Id., § 880.) If not so filed the irregularity may be cured by an order directing the filing nunc pro tunc. (See Bank of Silver Creek v. Browning, 16 Abb. 272.) SECTION XIV. Taking the Deposition of a Witness without the State. Whenever a party discovers that a witness material to his cause of action or defense is without the State, and will not be present at the trial, he should at once take the steps necessary to secure his testimony for use upon the trial. As the personal attendance of the witness cannot be compelled by an ordinary subpoena served without the State, the party should proceed to procure a commission to take the deposition of the witness at the place where he may be sojourning. The statute recognizes and author- izes three distinct classes of commissions, — one limiting the ex- amination to certain witnesses designated, and to the specific questions propounded by written interrogatories attached to the commission ; another, limiting the examination to witnesses designated in the commission, but either not limiting the scope of the examination by interrogatories, or limiting it only in part ; and another, neither limiting the witnesses examined nor the scope of the examination, but allowing the examination of any witness produced by either party upon oral questions to be put to the witness when produced. But the applicant for a com- mission cannot be examined as a witness in his own behalf under the latter form of commission, except by consent of parties. A deposition may also be taken under an order without the issuing of a commission. ^ deposition may also be taken under letters rogatory which differ from an ordinary commission in this that they are directed to a judicial tribunal or ofificer of the foreign country, with a request to summon the witness, and take the testimony instead of appointing a commissioner to take it. Letters rogatory differ 1 1 162 Trial Practice. Commission to examine witnesses upon interrogatories. from an ordinary commission in the manner of execution. The execution of a commission is under rules of procedure established by the court issuing it ; while the execution of letters rogatory is according to the rules of procedure of the foreign tribunal. {Union Sqjiare Bank v. Reichman, g App. Div., S96.) The issuing of a commission may be ordered, or an order directing the taking of depositions may be made, either upon formal application to the court or judge, upon notice to the ad- verse party, or upon a stipulation filed with the clerk, without application to the court. The practice on application to the court will be first considered. Commission to examioe witnesses upon interrogatories — in what cases issued. — A commission to examine witnesses wholly upon interrogatories may be issued in either of the follow- ing cases: I. Where a party to an action, brought in a court of record, is in default for want of an appearance or pleading, and the testi- mony is required upon the assessment of damages, by a writ of inquiry, or upon a reference, or otherwise, to enable the court to render the proper final judgment. 2 Where final judgment has been rendered against the adverse party, in an action brought in a court of record ; and the testi- mony is required in order to carry the judgment into effect. 3. Where an appeal from a final judgment rendered in the Supreme Court, City Court of the city of New York, or a County Court, or a motion for a new trial in either of those courts, is pending ; and the testimony will be material and necessary to the applicant, in the prosecution or defense of the action, if a new trial is granted. 4. Where the application is made before the joinder of issue in an action brought in either of the courts specified in the last subdivision ; and there is reason to apprehend that before issue is joined, and an application for a commission can there- after be made, the witness will die, or become unable to give his testimony, or remove, so that his testimony cannot be taken. 5. Where an issue of fact has been joined in an action pending in a court of record, and the testimony is material to the appli- cant in the presentation or defense thereof. Taking Deposition of Witness Without the State. 163 When a. commission may issue. 6. In special proceedings. (Code of Civ. Pro., § 888.) In either of these cases when it appear? by affidavit on the application of either party that the testimony of one or more witnesses, not within the State, or, if the action or proceeding is pending in the City Court of the city of New York, not within the city and county of New York, or either of the counties of Richmond, Kings, Queens or Westchester (Code of Civ. Pro., § 3171), is material to the applicant, a commission may be issued to one or more competent persons named therein, authorizing them, or any one of them, to examine the witness or witnesses named therein, under oath, upon the interrogatories annexed to the commission, to take and certify the deposition of each witness, and to return the same, and the commission according to the directions given in or with the commission. The applicant, or any other party to the action, may be thus examined. (Id., § 887.) It will be sufficient for the purposes of this chapter to consider the practice upon applications for a commission in case of default (Subd. I, § 888); or where an issue of fact has been joined in an action pending in a court of record and the testimony is material to the applicant in his prosecution or defense. (Subd. 5, § 888.) The power of the court to award a commission to take the testimony of a witness without the State, without the consent of the parties, depends entirely upon the statute and can be exercised only in the cases there specified. {Wood v. Howard Ins. Co., 18 Wend. 646; Hemenway \. Knudson, 73 Hun, 227; Matter of Whit- ney, 4 Hill, 533 ; McCall v. Sun Mut. Ins. Co., 50 N. Y., 332; Matter of an Attorney, 83 id. 164; Champlin v. Stodart, 64 How. 378.) The court may refuse to exercise the power in a pending action where the applicant desires to have his own testimony taken and it appears that he has fled from the State for the pur- pose of escaping trial upon an indictment found against him {McMonagle v. Conkey, 14 Hun, 326; Keenan v. O'Brien, 53 Hun, 30 ;) and in every other case where the court has reason to believe that the application is not made in good faith. (Code of Civ. Pro. §889. See Clark v. Candee, 29 Hun, 139.) A commission may issue to take the testimony of a person confined as a lunatic in an asylum in another State, but whether the deposition will be received as evidence will depend upon the mental capacity of the witness as it appears from all the evidence before the trial judge. {^Hand v. Burrows, 23 Hun, 330.) 164 Trial Practice. The application. The application. — The application for an order directing a commission to issue may be made to the court at a Special Term (See Gen. Rule 38); or to a judge thereof, or, in the Supreme Court, to the county judge of the county where the action is tria- ble. (Code of Civ. Pro., § 889.) A referee has no power to make the order. (Rathbun y. Ingersoll, 2 Jones & Sp. 211.) Notice of the application must be given to the adverse party unless he is in default for want of an appearance. (Code of Civ. Pro., § 889.) If notice is required the usual notice should be given. (See Id., § 780.) If the action is in the Supreme Court, and notice is required, the motion must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable, except that if it is triable in the first judicial district, the motion must be made in that district, and if not triable in that district, cannot be made therein. (Id., § 769. See also Id., § 770.) If no notice is required, the application may be made to any judge of the court in any part of the State. (Id., § 772.) The motion should be based upon an affidavit showing the pendency of the action ; the place where the action is triable ; whether an issue of fact has been joined or otherwise (See Allen v. Hendree, 6 Cow. 400), and if issue has been joined, that the testimony of a witness or of witnesses, named in the affidavit (See Wright v. Jessup, 3 Duer, 642), is material to the applicant in the prosecu- tion or defense of the action, or, if a party is in default for want of an appearance or pleading, that the testimony is required upon the assessment of damages by a writ of inquiry, or upon a refer- ence, or otherwise, to enable the court to render the proper final judgment (See Code of Civ. Pro., §§ 887, 888); and in either case that the witnesses are not within the State. It is not sufficient to allege that the witness resides out of the State. {Wallace v. Blake, 22 St. Rep. 425 ; Appollinaris Co. v. Venable, 32 St. Rep 210.) The Code requires that it shall appear by affidavit that the testimony of one or more witnesses, not within the State, is mate- rial to the applicant (Id., § 887), and that satisfactory proof be given of the facts authorizing the issuing of the commission. (Id., § 889.) Under the old practice the applicant was required to swear to the advice of counsel as to the materiality of his absent witnesses (See Lansing v. Mickles, i How. 248 ; Brown v. Seys, 2 id. 276 ; Seymour s Executors V. Strong, 19 Wend. 98; Mygatt v. TaKI.SG nEPOSITION OF WiTNtSS WITHOUT THE StATE. 165 The affidavit may be made by an agent or attorney. Garrison, i8 Abb. 292, note); unless the affidavit was made by an attorney. {Beal v. Day, 7 Wend. 513. See Eaton v. North, 7 Barb. 631.) The old practice may be safely followed. If the application is made by a defendant, and a stay of proceedings is desired, an affidavit of merits should be embodied in the moving papers. {Warner v. Harvey, 9 Wend. 444; Franklin v. United- States Ins. Co., 2 Johns. Cas. 285 ; Brisban v. Hoyt, i Wend. 27; Meech v. Calkins, 4 Hill, 534.) The affidavit need not state that the party cannot safely proceed to trial without the testimony of the absent witness. {Brackett v. Dudley, i Cow. 209.) The facts, necessary to be stated in an affidavit of merits and the mode of stating advice of counsel have been sufficiently noticed. (See ante, p. 89.) The .-iffidavit may be made by an agent or attorney without alleging any excuse why it is not made by the party. (See Murray v. Kirkpatrick, I Cow. 210; Johnson v. Lynch, 15 How. 199, 200; Beallv. Dey, 7 Wend. 513; Demar v. VanZandt, 2 Johns. Cas. 69; Corbett v. De Comeau,^ Abb. N. C. 257.) The application should be made at the earliest day practicable, as the laches of the moving party may be a ground for denying the application or of imposing costs as a condition of granting it. (See Forrest v. Forrest, 9 Abb. 289; S.C., 3 Bosw. 661 ; Brokaw V. Bridgman, 6 How. 115 ; Wright v. lessup, 3 Duer, 642 ; Rath- bun V. Ingersoll, 2 Jones & Sp. 211.) Where the delay in making the application is caused by the defeat of prior applications through technical objections inter- posed by the adverse party the laches will furnish no ground for denying the motion. (Margiclies v. Damrosch, 2,^ A^-^. Div. 15.) Upon the hearing of the motion the adverse party may oppose the issuing of the commission upon the insufficiency of the mov- ing papers or irregularities in practice, or upon affidavits tending to show bad faith in the moving party. If doubt is cast upon the good foith of the application, the motion may be denied without prejudice to a renewal upon additional affidavits (Van- dervoort v. Columbian Ins. Co., 3 Johns. Cas 137; Rogers v. Rogers, 7 Wend. 514), or if the court or judge has reason to believe that the application is not made in good faith, it may be denied abso- lutely. (Code of Civ. Pro. § 88 j.) So if a defendant applies (or a commission and the opposing affidavits show facts which, if 166 Trial Practice. The order. true, will probably preclude the defense which is sought tp be proved by the witnesses abrofid, and also Aow that the issiiing of a commission will lead to great delay, the court may require the defendant, on request of the plaintiff, to disclose what he proposes to prove by the absent witnesses, so that the plaintiff may admit the facts expected to be proved by them if he deems proper ; and if such disclosure is made and admission given, the motion may be denied. {Bank of Commerce v. Michel, i Sandf. 687. See Vandervoort v. Columbian Ins. Co., 3 Johns. Cas. 137.) The granting of a commission, although not an absolute right, has come to be almost a matter of course ; and when applied for without laches or unreasonable delay, is usually accompanied by a stay of proceedings for such reasonable time as may be required for its due execution. Where, however, much time has elapsed, very satisfactory excuse for the delay is required, and the moving party must make out a case not only excusing his laches, but also showing such a necessity for his evidence as will remove the natural suspicion of bad faith ; and in extreme cases, the moving party, besides excusing the delay, should be required to disclose the nature of the evidence he expects to obtain. {Rathbun v. Ingersoll, 2 Jones & Sp. 211.) Where the court or judge has denied the motion upon the ground that the good faith of the application has been impeached by the opposing affidavits, the moving party should seek to break the force of such affidavits by obtaining leave to renew the motion upon additional affidavits before taking the chances of an appeal. (See Clark v. Candee, 29 Hun, 139.) The order. — An order directing that a commission issue to examine foreign witnesses upon interrogatories, as provided in section 887 of the Code of Civil Procedure, must be granted upon satisfactory proof of the facts authorizing it, unless the court or judge has reason to believe that the application is not made in good faith, or unless an order for an open commission or for tak- ing depositions is made as prescribed in article 2 of title 3 of chapter 9 of that act. Upon granting the order the court or judge may, in any case, in pose such terms as justice requires. (Code of Civ. Pro., § 889.) It appears to have been the settled Taking Deposition of Witness Without the State. 167 The order. practice before the Code to require a party, who unreasonably delayed moving for a commission until after the service of a notice of trial, to pay the costs of preparing for trial up to the time of service of the notice of motion ; and, if he did not stip- ulate in the notice to pay such costs, to charge him also with the costs of opposing the motion. {LaFarge v. Luce, 2 Wend. 242 ; Ives V. Jones, i id. 283 ; Brokaw v. Bridgman, 6 How. 114.) The court may require the moving party to disclose what he expects to prove by the absent witnesses so that the adverse party may have an opportunity of admitting the facts, though such terms are not imposed where no great delay is apprehended {Bank of Commerce v. Michel, i Sandf. 687), unless the moving party has been guilty of such gross and inexcusable delay in making the application as to cast doubt upon his good faith. (See Rathbun v. Ingersoll, 2 Jones & Sp. 211.) An order made by a judge out of court can be granted only in a case where the court would grant it, and upon the same terms. Such order is subject to the control of the court. (Code of Civ. Pro., § 890.) Upon an application made in the Supreme Court, the City Couit of New York, or a County Court, for a commission to be issued to a foreign country, if it satisfactorily appears, by affida- vit, that the witness does not understand the English language, the order for the commission may, in the discretion of the court or judge, direct that written interrogatories annexed thereto, by way of direct and cross-examination, be framed in the English language, and also in a foreign language ; that only the interro- gatories framed in the foreign language be put to the witness ; and that his answers be taken, and the certificates made out, in the same language. Where such an order is made, it must pro- vide for the payment, by the applicant, to the adverse party, of a reasonable sum, fixed therein, for the expense of procuring the interrogatories, in his behalf to be translated. (Id. § 912.) The order granting the commission may or may not prescribe the manner of its return. (See Code of Civ. Pro., § 892.) An order directing that a commission issue should be suffi- ciently specific to furnish the basis for the commission to be issued under it. If granted upon terms, the terms should be dis- tinctly stated. If the proceedings in the action are stayed until 168 Trial Practice. Entering the order. the execution and return of the commission, the order should contain an appropriate direction to that effect. (See Maynard v. Chapin, 7 Wend. t,2o; Jackson v. Woodworth, 18 Johns. 135.) The court or judge has the power to grant the order upon the condition that the applicant consent that the witnesses be also examined and cross-examined orally. {Clayton v. Yarrington, 16 Abb. 273, note ; Anderson v. West, 9 Abb. [N. S.], 20p. But see Deslton v. Packwood, 16 Abb. 272, note.) The Code expressly provides that where an issue of fact, joined in an action, is pend- ing in the Supreme Court, the City Court of the City of New York, or a County Court, the parties may stipulate, in writing, or the court to which, or the judge to whom, an application for a com- mission is made, may, in its or his discretion, direct, in the order, that a commission issue without written interrogatories, and that the depositions be taken upon oral questions; or that a commis sion issue, to take the deposition of one or more witnesses, des- ignated in the order, partly upon oral questions, and partly upon written interrogatories, or to take the deposition of one or more witnesses, designated in the order, upon oral questions, and one or more witnesses, designated in the order, upon written inter- rogatories.. (Code of Civ. Pro. § 893.) But the section quoted is not applicable where the adverse party is an infant, or the com- mittee of a person judicially declared to be incapable of manag- ing his affairs by reason of lunacy, idiocy, or habitual drunken- ness ; or where the testimony is to be taken elsewhere than in the United States or in Canada ; nor can the applicant be exam- ined in his own behalf, as prescribed in that section, except by consent of the parties. (Id. § 895.) An order directing the issuing of a commission, if made by the court, should be entered with the clerk, as a matter of course. If made by a judge out of court, the statute requires its entry. (Id., § 890.) A neglect to enter the order will render a commis- sion issued in pursuance of it irregular. (See Whitney v. Wyii- coop, 4 Abb. 370.) If the order contains a direction staying the trial of the action, a certified copy should be served upon the attorney for the adverse party, with notice of the entry. (For a form of an order foi a commission, see Appendix.) The commission. — The party obtaining an order for a com- mission should proceed to draw it in accordance with the order. Taking Deposition of Witness Without the State. 169 The commission. Unless the order otherwise directs, the commission issued will be directed to one or more competent persons named therein, authorizing them, or any one of them, to examine the witness or witnesses named therein under oath, upon the interrogatories annexed to the commission ; to take and certify the deposition of each witness ; and to return the same and the commission, according to the directions given in or with the commission. (See Code of Civ. Pro., § 887.) The authority of the court to issue a commission depends solely upon the statute and, therefore, it can issue its ccmmis- sion only to persons named for the examination of witnesses also named. {Hemenway v. Knudson, 73 Hun, 227.) The appoint- ment of a commissioner by the title of his ofifice merely and the designation of a witness by a fictitious name in the commission is unauthorized. (Id.; Wallace v. Blake, 22 St. Rep. 425 ) The commissioner should be a person who has no bias or prej- udice in reference to the litigants or the cause. If the person appointed is not fair and unbiased, any party to the action may have a review of the order by appeal without waiting for the return of the deposition and then moving to suppress it. (^McLean v. Adams, 45 Hun, 189.) A commission is a writ or process issued by the special order of the court, and a seal is essential to its validity. {Tracy v. Suydam, 30 Barb. 1 10 ; Whitney v. Wyncoop, 4 Abb. 370; Ford v. Williams, 24 N. Y. 359; Mason & Hamlin Organ Co. w.Pugsley, 19 Hun, 282.) Without a seal it is a nullity, and depositions taken thereunder are not admissible as evidence. (Id.) But this rule does not apply to commissions issued without any special order of the court upon stipulation. {Churchill v. Carter, 15 Hun, 385.) The seal affixed should be the seal of the court out of which the commission issues. {Whitney v. Wyncoop, 4 Abb. 370.) The commission should be attested by the signature of the judge and clerk, but the omission of the signature of the latter is not fatal. {Goodyear v. Vosburgh, 41 How. 421.) If the order prescribes the mode in which the commission shall be returned the proper direction should be contained in the commission. (See Code of Civ. Pro., §§ S87, 8q2; Hall v. Bar- ton, 25 Barb. 274.) (For a form of a commission, see Appendix.) 170 Trial Practice. Settling interrogatories. Settling interrogatories, etc. — Unless the interrogatories to be annexed to the commission are settled by consent of the par- ties they must be settled upon notice by a judge of the court, or in the Supreme Court, by a county judge of the county where the action is triable, as prescribed in the general rules of prac- tice. (Code of Civ. Pro., § 891.) When the commission goes to a foreign country, and the order granting it directs that the interrogatories be framed in the English language and also in a foreign language, the judge who settles the interrogatories must settle them in the foreign language, and in the English language, and for that purpose, he may call in the assistance of one or more experts, whose compensation must be fixed by the judge, and paid by the applicant. When the deposition is read in evi. dence, it and the interrogatories must be interpreted into the English language, as if the witness, being unable to speak the English language, was personally present and testifying. (Id., §912.) The party procuring the commission draws up in writ- ing the questions which he desires put to the witness on his direct examination, and serves a copy of the proposed interrog- atories upon the attorney for the adverse party, with a notice of the time when and place where they will be presented for settlement. Under the old practice four days' notice of settlement was sufficient, and as the Code and rules of practice are silent as to the length of notice, the old practice may safely be followed. (Brewer v. Press Publishing Co., 20 Misc. 509; Krauss v. Hallbeimer, 23 Civ. Pro. R. 317.) The adverse party then prepares cross-interrogatories, em- bracing the questions he wishes put to the witness, and either serves a copy of them upon the moving party, or presents them to the judge for settlement on the day fixed therefor by the notice. The former course is the better prac- tice, as it gives the moving party an opportunity to inspect the proposed cross-interrogatories before the time of settlement, and to stipulate that they be settled as proposed. The old prac- tice required such service to be made at least two days before the settlement, and such is the practice now. (Id.) Upon the settle- ment either party must be allowed to insert in the interrogatories any question pertinent to the issue which he proposes. (Code of Civ. Pro., § 892.) This right the judge cannot deny or curtail. Taking Deposition of Witness Without the State. 171' The execution and return of the commission. Uline V. N. V. C. & If. R. R. Co., 79 N. Y. 176.) Although it is the general rule to allow all interrogatories which may be pro- pounded under a commission, leaviog the question of the admis- sibility of the evidence to be determined at the trial, yet where an interrogatory is clearly irrelevant, and is apparently put for the purpose of eliciting information in no way connected with any issue presented by the pleadings in the action, such interrog- atory should not be allowed. {Walton v. Goodwin, 54 Hun, 387; Dent v. Society of Friars, 41 St. Rep. 472.) But any question -which may be pertinent on the trial should be allowed. {Fry v. Manhattan Trust Co., 2 Misc. 520; Hemcnway v. Knudson, 50 St. Rep. 738.) The power to exclude questions should be spar- ingly exercised. (Uline v. N. Y. Cent. & H. R. R., 79 N. Y. 175. See MacDonaldv. Garrison, 2 Hilt. 510; 9 Abb. 178; Estate t& Jones v. Hoyt, i6 Jones & Sp. ii8 ; 5. C, 63 How. 94; 10 Abb. N. C. 324; Hart v. Ogdensburg & L. Champlain R. R. Co.,6'j Hun, 556.) But open commissions arc not favored by the courts and will not be issued unless in a case where the purposes of justice clearly require a departure from the usual remedies, and never on motion of the plaintiff without the strongest and most convincing reasons. {Henry v. Mead, 4 Law. Bull. 10; Einstein V. General Electric Ci?., 9 App. Div. 570; Lcn- tilhon V. Bacon, 20 N. Y. Supp. 488 ; Predigested Food Co. v, Scott, 28 App. Div. 59 ; Darling v. Klock, 74 Hun, 248 ; Kaempfer v. Gorman, 43 St. Rep. 800 ) The fact that the witnesses to be examined are hostile is not of itself enough to justify a departure from the usual remedies. {Kaempfer v. Gorman, 43 St. Rep. 800.) Open commission, application for. — An application for an order directing an open commission to issue may be made to the court in which the action is pending, at a Special Term, or to a judge of suc!\ court, or, if the action is pending in the Supreme Court, to the county judge of the county where the action is triable. (Code of Civ. Pro., § 894.) Either party may make the application. It must be made on notice to the adverse party, and should be based upon an affidavit or afSdavits furnishing satisfactory proof that the testimony of one or more witnesses, not within the State, is material and necessary in the prosecution or defense of the action. (See Einstein v. General Electric Co., 9 App. Div. 570.) The moving papers should also show that the case does not come within the exception of the statute (See Code of Civ. Pro., § 895), and should set forth clearly and positively the peculiar facts which the moving party supposes will entitle him to the exceptional proceeding demanded. The motion may be opposed upon counter affidavits or defects in the moving papers, or upon irregularities in the proceedings. Open commission, order for. — The court or judge must, in the first place, pass upon the evidence presented by the parties, and determine what the facts and circumstances are, and in the next place must determine whether the facts established justify Taking Deposition of Witness Without the State. 1?5 Open commission — form of and proceediags thereunder. the granting of an open commission. The effect of granting the order will be to substantially change the place of trial of one side of the case to another State, will impose upon the adverse party the expense of employing special counsel at the place where the deposition is to be taken, and will deprive the party of the right to have the witnesses cross-examined intelligently by counsel who can have the aid of the party's personal knowledge and advice, except at the cost of a long journey and other new and unusual items of expense. If the moving papers show the exact facts sought to be proved by each of the witnesses named, an open commission should not issue, as there can be no difficulty in framing interrogatories to bring out the testimony desired. {Predigested Food Co. v. Scott, 28 App. Div. 59.) There may be peculiar and extraordinary cases where an open commission may properly issue to examine unnamed and undescribed witnesses (See Hart v. Ogdensburgh 6f Lake Champlmn R. R. Co., 67 Hun, 556), but ordinarily the application will be denied or the exam- ination limited by the order to persons of a particular locality or class where the names of the witnesses are unknown. (See Darlhig v. Klock, 74Hun, 248.) Upon satisfactory proof of the facts specified in the statute the court or judge may make the order and impose such terms as it or he deems proper. (Code of Civ. Pro. § 894.) The granting or refusing of the order is a matter of discretion with the court or judge hearing the motion, but the exercise of that discretion is subject to review by the General Term. {Anonymous, 59 N. Y. ii'^; Jemison v. Citizens' Savings Bank, 85 id. 546.) (For a form of the order, see Appendix ) The order should be entered in the proper county, and a com. mission prepared by the moving party in accordance with its terms. Open commission — form of, and proceedings thereunder.— An open commission must be directed to one or more persons, -named therein, and must authorize them, or any one of them, to examine any witness who may be produced by either party, on or before a day specified therein, upon oral ques- tions to be put to the witness, when he is produced ; to take and certify the deposition of each witness so ex- amined ; and to return the same, and the commission, 176 Trial Practice. Order directing depositions to be taken. immediately after the expiration of the time limited for the p-'odnc- tion of witnesses, according to the directions given in or with the eommiasion. (Code of Civ. Pro., § 897.) The attorney procuring the order should have the commission duly attested and sealed (See ante, p. 169), and should attacl^ to it copies of sections 900, 901 and 902 of the Code of Civil Procedure. He should next prepare a notice of the time and place of the examina- tion of the witness, naming the witness, and have it served upon the attorney for the adverse party at least five judicial days before the deposition is taken, and one judicial day in addition for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken. (Code of Civ. Pro., §§ 896, 899.) The statute pre- scribes the mode of taking the deposition (Id., §§ 900, 901), of cer- tifying (Id., § 902), and returning the same (Id., §§ 903-90.5), the proceedings upon such retm-n (Id., §§ 906, 907, 909), the cases in which the deposition may be stippressed (Id., § 910), and its effect as evidence. (Id., § 911.) Order directing depositions to be taken. — This order may be made in the same cases, iipon the same papers, and by the same court or officer, as an order that an open commission issue (Id., § 894) ; and the deposition is taken iinder the order, certified, returned and filed in the same manner as a deposition taken upon an open com- mission. (Id., §§ 900-907.) The order mnst specify the time within which the depositions must be taken and the manner in which they must be returned. It may also contain such additional directions, not inconsistent with section 899 of the Code of Civil Procedure, with respect to the time and manner of giving notice, as the court or judge deems proper. (Id., § 898.) (For a form of the order, see Appendix.) The party procuring the order should have it entered in the ofiice of the clerk of the court in which the action is pending. (See Code of Civ. Pro., §§ 898, 3343, subd. 4.) He should then procure from such clerk as many certified copies as there are depositions, or sets of depositions, to be returned (Id., § 898), and should attach a copy of secticns 900, 901 and 902 of the Code of Civil Procedure to each certified copy (Id., §§ 900, 901) and forward the papers to the person by whom the deposition is to be taken. Taking Deposition of Witness Without the State. 177 Commission or order by consent. A deposition may be taken, pursuant to such an order, before a person mutually agreed upon by the parties, or a chancellor, or a' iiidge of a court of record, or the mayor or other chief magistrate of a city, or a justice of the peace of the State or territory where the witness is, who is not counsel or attorney for either party, and would not be disqualified, by reason of aflBnity or consanguinity to a party, or interest in the event, from serving as a juror upon the trial of the action within the State. (Id., § 899.) Eelationship by consanguin- ity or affinity within the sixth degree is a disqualification. (Id., §§ 46, 1166.) Written notice of the time and place of taking a de- position, specifying the name of clie witness, and the person before whom it will be taken, must be served by the party, at whose in- stance it is taken, upon the attorney for the adverse party. The time for serving such a notice must be, at least, five judicial days before tlie deposition is taken ; and one judicial day, in addition, for eacli fifty miles, by the usual route of travel, between the residence of the attorney for tlie adverse party, and the place where the de- position is to be taken. (Id., § 899.) After such notice has been given the party is in a position to attend to the execution and return of the order. Commission or order by consent. — Any form of commission to take testimony of a witness without the State may be issued, or an order directing the taking of depositions may be made by consent of parties in a case where either may be directed by a court or judge. (Code of Civ. Pro., § 908.) The consent should be in the form of a stipulation, signed by the attorneys for the parties. This should be filed with the clerk of the court in which the action is pending, and that officer must enter an order accordingly. (Id.) Tlie order is drawn by one of the attorneys and presented to the clerk for entry. The entry of the order is indispensable to the validity of the subse- quent proceedings. (See Mason <& Hamlin Organ Co. v. Pugs- ley, 19 Hun, 282.'^ The order will be similar in form to an order made by the court or judge, except that instead of reciting the reading and filing of the motion papers, etc., it will recite that it is made upon a stipulation filed with the clerk. If the order is for a commission to issue, the attorney for the party procuring the or- der should prepare the proper commission, attested and sealed in the same manner as a commission issued under the order of the court, and, unless he lias inserted the necessai-y directions for its execution 12 178 Trial Practice. Letters rogatory. and return, should indorse them upon or annex them to the com- mission. (See Code of Civ. Pro., § 908; Mason dk Hamlin Organ Co. V. Pugsley 19 Hun, 282; Goodyear v. Yosburgh, 4=1 How. 421 ; Williams v. Eldridge, 1 Hill, 249.) If the deposition is to be taken upon interrogatories, tliey should be settled by stipulation and attached to the commission ; or, if the parties cannot agree upon the interrogatories, they should be settled before a judge in the ordinary manner. (See ante, p. 170.) The attorney should also attach to the commission a copy of sections 901 and 902 of the Code of Civil Procedure, and if the examination is to be taken wholly or partly upon oral questions, a copy of section 900 of that act should also be attached, and notice of the time and place of taking the deposition given to the adverse party, as required in case of an open commis- sion issued under order of the court. The commission, with the paper attached, should then be forwarded for execution. An order to take depositions entered by consent will be sabstan- tially the same as an order made by the court or judge. The direo- tions for the execution and return will be inserted in the order, or indorsed upon or attached to it by the attorney, according to the stipulation, and a certified copy of the order must be procured from the clerk to attach to each deposition or set of depositions taken under it. Copies of sections 900, 901 and 902 of the Code of Civil Procedure must be attached to each certified copy of the order, and it is then ready to be forwarded for execution. The suosequent proceedings are the same as under an order made by the court or judge. (For form of stipulations and orders, see Appendix.) Letters rogatory may be issued from the Supreme Court, from the City Court of New York, or from a County Court, in its discretion, in a case where a commission may be issued by those courts to examine a witness without the State. (Code of Civ. Pro., §913.) The distinction between letters rogatory and an ordinary commission has been pointed out. {See ante, p. i6r.) Such letters may be issued notwithstanding that a commission can be executed in the country to which they are sent, upon satisfactory proof by affidavit that the ends of justice will be better promoted thereby than by the issuing of a commission. They can be issued only to examine one or more witnesses upon written interrogatories annexed to the letters, and framed and Taking Deposition of Witness Without the State. 179 Correcting defects in the execution of the commission. settled as hereinbefore noticed. The depositions taken under the letters must be returned in the same manner as prescribed by the Code for the retnrn of a deposition taken upon interrogatories attached to a commission issued out of a court of record. (See Code of Civ. Pro., § 913.) The Code makes no provision as to the mode of execution of these letters and they are properly executed according to the practice of the foreign court to which they are directed. {Union Square Bank v. Reichmann, 9 App. Div. S96.) Correcting defects in the execution of the commission or suppressing depositions. — The commission or copy of an order to take depositions, after execution and return, with all the certi- ficates, returns, depositions and exhibits annexed, remain on file with the clerk of the court in which the action is pending unless the parties have otherwise stipulated, or unless the court, by a special order, has directed them to be filed in the offije of another clerk. They are always open to the inspection of the parties, and either party may obtain a copy of them, or of any part of them, on payment of the fees allowed by law. (Code of Civ. Pro , § 909.) Ordinary prudence in the management of his client's cause will require a careful examination of these papers by each attorney before trial, not only for the purpose of ascertaining the beneficial or damaging effect of the depositions as evidence, but also to determine in advance what objections should be raised to the competency or credibility of the witness examined, to the relevancy or substantial competency of a question put to him, or to an answer given by him, or, if the case demands it, to apply to the court for a re-execution of the commission, or for an order suppressing one or all of the depositions taken. Where it appears, by affidavit, that a deposition has been im- properly or irregularly taken or returned ; or that the personal attendance of the witness, upon the trial, could have been pro- cured, with due diligence, by a subpoena; or that the attorney for either party has practiced any fraud, or unfair or overreaching conduct, to the prejudice of the adverse party, in the course of the proceedings ; an order, for the suppression of the deposition, may 180 Trial Practice. Suppressing deposition. be made by the court, upon the application of the party aggrieved, upon notice to the adverse party. (Code of Civ. Pro., § 910.) In some cases a motion to suppress a deposition is the only available remedy of the party. The rule is well established that where a party has had an opportunity to correct an imperfect execution of a commission, either by ordering a re-execution or quashing the return, no objections to the deposition can be heard on the trial save those addressed to the competency of the wit- ness or the admissibility of the evidence. {Wright v. Cabot, I'll Jones & Sp. 229 ; S. C, 89 N. Y. 570 ; Newton v. Porter, 69 id. 133; S. C, 25 Am. Rep. 152 ; Zellweger v. Caffe, 5 Duer, 87; Kimball V. Davis, 19 Wend. 437 ; Sheldon v. Wood, 2 Bosw. 267 ; Union Bank of Sandusky \. Torrey, 5 Duer, 626; S. C, 2 Abb. 269; Union Square Bank v. Reichmann, 9 App. Div. 596; Reynolds v. Reynolds, 20 Misc. 254; Denny v. Horton, 11 Daly, 356; Hangen v. Hachemeister, 53 Super. Ct. 532. See, also, Rust v. Eckler, 41 N. Y. 448 ; Goodyear v. Vosburgh, 41 How. 421 ; Bur- rill V. Watertown Bank and Loan Co., 51 Barb. 105.) The remedy of the aggrieved party is by motion before trial. (Id.) But this course is obligatory only where the party has had knowledge of the defect for a sufiBcient time before the trial to enable him to make the motion. {Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 282.) Where extracts from letters have been annexed to a deposition where the party is entitled to the whole of the let- ters, his remedy is by motion in advance of the trial to have the error in the execution of the commission corrected, either by annexing the full letters, or striking out the extracts, or suppres- sing the deposition. {Wright v. Cabot, 89 N. Y. 570.) If the witness has refused to answer proper and material questions put to him on cross-examination, or if a general cross-interrogatory has not been put to and answered by the witness, the remedy of the party is by motion before trial to suppress the depositions {Sturm V. Atlantic Mutual Ins. Co., 63 N. Y. yj; Gates v. Beecher, 3 N.Y. Sup. Ct. [T. & C] 404; 60 N. Y. 518 ; Vilmar v. Sckall, 3 Jones & Sp. 67; 61 N. Y. 564), or to obtain a re-execution of the commission. {Baker v. Spencer, 47 id. 562.) The rule that mere formal defects in the execution or return of a commission will be waived by going to trial without making a motion to cor- Taking Deposition of Witness Without the State. 181 Suppressing deposition. rect the defect is applied also to an objection that the person who executed the commission had no right to act as commis- sioner, if the fact of disqualifications was known to the party a sufficient length of time to enable him to make his motion. {Newton V. Porter, 6:^ N. Y. 133. See Mason & Hamlin Organ Co. V. Pugsley, 19 Hun, 282.) The power of a commissioner to take depositions upon inter- rogatories in another state terminates on the return of the com- mission, and a deposition of a witness named therein after such return may be suppressed on motion before trial. {Benedict v- Richardson, 68 Hun, 202.) If the commissioner appointed is not fair and unbiased the party aggrieved may appeal from the order appointing the commissioner without waiting for the return of the commission and then moving to suppress it. {McLean v. Adams, 45 Hun, 189.) The bare fact that copies of the interrogatories and cross-inter- rogatories were furnished to a witness in advance of his examina- tion is not a sufficient ground for the suppression of his deposi- tion. {Butler v. Flanders, 12 Jones & Sp. 531 ; 5. C, 56 How. 312.) But whenever undue means are employed to give shape or color to evidence taken upon commission the deposition may properly be set aside on motion either with or without leave to execute the commission anew as the court, in its discretion, may deem proper. {Commercial Bank of Pennsylvania v. Union Bank of New York, 11 N. Y. 203. See Graham v. Carleton, 31 St. Rep. 127.) Thus where the taking of a deposition is suspended in consequence of the sickness of the witness, who upon his subse- quent reappearance for examination reads his answers to all the interrogatories, direct and cross, from a paper prepared by him- self and counsel, and in the handwriting of the latter, the deposi- tion may be suppressed on motion. {Creamer v. Jackson, 4 Abb. 413. Set Matter of Eldridge, 82 N. Y. 161, 170.) In the absence of a prior motion to suppress the deposition of a witness it may be read in evidence although the witness is present in court at the time. {Hedges v. Williams, 33 Hun, 546.) The application for an order to suppress a deposition should be made to the court at Special Term upon the usual notice, or upon ; an order to show cause. (See Code of Civ. Pro., §910; Gen. Rule! 37.) It fhould be based upon an affidavit showing the irregu-; 182 Trial Practice. Procuring documentary evidence. larity, bad faith or fraud complained of, and that the moving party has been prejudiced thereby. (See Code of Civ. Pro., § 910.) The motion may be opposed, and upon all the facts the court makes such order as justice requires. SECTION XV. Procuring Documentary Evidence. The Code provides that the record of a conveyance of real property, or any other record or document whereof a transcript duly certified may by law be read in evidence, shall not be re- moved by a subpoena duces tecum from the of&ce in which it is kept, except temporarily by the clerk having it in custody to a term or sitting of a court of which he is clerk, or by the officer having it in custody to a term or sitting of court, or a trial before a referee, held in the city or town where his office is situated ; and it also provides that where it is required at any other place it may be removed by order of the court specifying that the pro- duction of the original instead of a transcript is necessary. The mode of procuring such original records for the purpose of evi- dence has been discussed. (See ante, p. 142.) The cases are extremely rare which render the production of an original record necessary. A copy of a paper filed, kept, en- tered, or recorded, pursuant to law, in a public office of the State, the officer having charge of which has, pursuant to law, an official seal ; or with the clerk of a court of the State ; or with the clerk or secretary of either house of the legislature ; or of any other public body or board created by authority of a law of the State, and having, pursuant to law, a seal ; or a transcript from a record kept, pursuant to law, in such public office, or by such clerk or secretary, is evidence, when properly certified, as if the original was produced. (Code of Civ. Pro., § 933.) Copies of papers filed with a town clerk, or transcripts of records kept in his office, when duly certified by him, are of equal value with the originals as evidence. (Id., § 934.) The transcript of a record of a conveyance, duly recorded in this State, may be used in evidence, when duly certified, with like effect as the original conveyance. (Id., § 935.) So a duly certfied transcript from the docket-book of a justice of the peace within the State is Procuring an Admission that a Paper is Genuine. 183 Attorney for a party may request a written admission of gennineness. made evidence of any niatter stated in the transcript which the law requires the justice to enter in his docket. (Id., § 939.) The Code also provides as to the mode of proving documents remaining in a court or public office of the United States, or ex- ecuted or remaining without the State (Id., §§ 942-956), and pro- vides generally how transcripts, exemplifications or copies of records or other papers shall be certified in order to be admissi- ble in evidence. (Id., §§ 957-9S9.) It also makes it the duty of the officer having custody of the paper or record to make the necessary searches, transcripts and certificates, on payment or tender of his fees therefor. (Id., § 961.) How this duty shall be performed it is not necessary to discuss. The Code furnishes all the inf ;rmation that a young practitioner can require as to the manner of procuring documentary evidence for use upon the trial. SECTION" XVI. Peocueing an Admission that a Paper is GsinnNE. The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party a paper material to the action, and request a written admission of its genuineness. If the admission is not given within four days after the request, and the paper is proved or admitted on the trial, the expenses incurred by the party exhibit- incT it, in order to prove its genuineness, must be ascertained at the trial, and paid to the party refusing the admission, unless it appears to the satisfaction of the court, that there was good reason for the refusal. (Code of Civ. Pro., § 735.) SECTION xvn. NoncB TO THE Adverse Party to Peoduob Papers, etc. Where a writing, material to the cause of action or defense, is in the possession of the adverse party, the latter should be served with no- tice to produce the writing upon the trial, as a preliminary to offering oral evidence of its contents, in case the writing is not produced. {Rogers v. Van Hoesen, 12 Johns. 220 ; Grimm v. Ilamel, 2 Hilt. 434.) To this rule there are well-established exceptions. If the form 184 Trial Practice. Form of the notice. of the action or of the pleadings gives notice to the opposite party to bi3 prepared to produce a particular instrument, if necessary to cofltradiet the evidence of the other party, notice to produce the in- stMiment is not necessary. {People v. Holhrook, 13 Johns. 92 ; Hammond v. Hopping, 13 Wend. 505 ; Hotohkiss v. Mosher, 48 N. Y. 478 ; Bissel v. Drake, 19 Johns. 66 ; Howell v. Huyok, 2 Abb. Ct. App. 423 ; Lawson v. Bachmam,, 81 IST. Y. 616 ; Hooker V. Eagle JBaiih, 30 id. 83 ; Hardin v. Kretsinger, 17 Johns. 293 ; Edwards v. Bonneau, 1 Sandf. 610 ; Hays v. Riddle, id. 248 ; Story v. Patten, 3 "Wend. 486.) So if a witness has the paper in court, he may be required to produce it without having been served with a notice to that efEect. {Boynton v. Boynton, 16 Abb. 87 ; 6^. C, 25 How. 490.) So where the writing is merely collateral to the question in issue, notice to produce it is not necessary. {Bovjen V. Nat. Bank of Newport, 11 Hun, 226.) As the notice does not compel the production of the paper like a subpoena duces tecum, but merely lays the foundation for parol evi. dence of its contents in case the party served witii the notice disre- gards it (See Edmoihstone v. Hartshorn, 19 N. Y. 9), this proceed- ing will prove of little value unless the party resorting to it can give parol evidence of the contents of the paper withheld. If such evi- dence cannot be given, the party should serve a subpoena duces tec^im instead of the notice. Form of the notice. — While an oral notice to produce papers at the hearing may be sufficient to lay the foundation for oral evi- dence of their contents (See Kerr v. McGuire, 28 How. 27 ; S. C, 28 N. Y. 446), a written notice is always preferable. The notice should describe and identify the writings desired so that the party served may know what paper he is required to produce. It need be in no particular form. It will be sufficient if it apprises the party served that he is required to produce a particular paper or papers on the trial of the action and that if it is not produced, parol e\idence of its contents will be given. (See Frank v. Manny, 2 Daly, 92 ; Walden v. Davison, 11 Wend. 65.) Service of the notice. — The notice may be served upon tlie at- torney for the party having custody of the papers {Broion v. L/'ifle- field, 7 Wend. 454), or it seems that it may be served upon the party. (Gorkam v. Gale, 7 Cow. 739.) It should be served such a length Notice to adverse Party to Produce Papers. lb» Service of the notice. of time before the trial as to afford the party served a reasonable nn. portunity to comply with it. (See OorKam v. Gale, 7 Cow. 739 ; Utica Ins. Co. v. Cadwell, 3 Wend. 296 ; McPherson v. Eaihhone, 7 id. 216 ; Bowen v. Bat. Bank of Newport, 11 Hun, 226 •, Jack- son V. Marsh, 1 Caines, 153.) Notice once given is sufficient and need not be repeated. {Jack- son V. O^EeUly, 6 Johns. 19.) And if it is disregarded by the party served parol evidence may be given of the contents of the paper withheld, and the party withholding it will be precluded from after- ward putting it in evidence. {Tyng v. U. S. Submarine and Torpedo Boat Co., i Hun, i6i; Mather v. E. M. Co., ii8 N. Y. 629.) SECTION XVIII. Discovery of Books and Papers. " A court of record, other than a justice's court in a city, has power to compel a party to an action pending therein, to pro- duce and discover, or to give to the other party an inspection and copy, or permission to take a copy of a book, document, or other paper, in his possession or under his control, relating to the merits of the action, or of the defense therein." (Code of Civ. Pro., § 803.) " The general rules of practice must prescribe the cases in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act." (Id., § 804.) The general rules of practice provide that " Applications may be made in the manner provided by law to compel the produc- tion and discovery or inspection with copy of books, papers and documents relating to the merits of any civil action pending in court, or of any defense of such action in the following cases ; " I. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the defend- ant which may be necessary to enable the plaintiff to frame his complaint or to answer any pleading of the defendant. " 2. By the defendant to compel the like discovery of books, papers or documents in the possession or under the control of the plaintiff which may be necessary to enable the defendant to answer any pleading of the plaintiff. 186 Trial Practice. The application for tbe order. " 3. Either party may be compelled to make discovery of any book, document, record, article or property in his possession or under his control, or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court that such book, document, record, article or property is material to the decision of the action or special proceeding, or some motion or ap- plication therein, or is competent evidence in the case, or an in- spection thereof is necessary to enable a party to prepare for trial. (Rule 14.) Under the practice existing before the amendment of the rule cited by the addition of subdivision 3, a party might obtain an order granting leave to examine and in- spect the books of his adversary in order to enable him to prop- erly prepare for trial. (Amsinck v. North, 62 How. 115; Babbitt V. Cranipton, 12 Week. Dig. 13: I Civ. Pro. R. 169. See Clyde V Rogers, 24 Hun, 145; 87 N. Y. 625; Stickier v. Tillinghast, 43 Hun, 95.) The application for the order directing the discovery or in- spection of books or papers is, in the first instance, ex parte. " To entitle a party to procure such a discovery or inspection, he must present a petition, praying therefor and verified by affidavit, to the court, or to a judge authorized to make an order in the action ; upon which an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in "default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted; and, if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days." (Code of Civ. Pro., § 805; Dick v. Phillips, 41 Hun, 603.) " The moving papers upon the application for such discovery or inspection, with copy, shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers, articles, property and documents whereof discovery or inspection, with copy, is sought, are not in the possession or under the control of the party applying there- for, but are in the possession or under the control of the party against whom discovery is sought, or his agent or attorney. The party applying shall show, to the satisfaction of the court or Discovery of Books and Papers. IST The petition must state what information is wanted. judge, the materiaiity an^l necessity of th-e discovery or inspec- tion sought, the particular information which he requires, and in the case of books and papers, that there ar^; entries therein as to the matter of which he seeks a discovery or inspection." (Rule 15. See Goodyear'' s Rubber Glove Co. v. Gorham, 83 Hun, 342.) The petition should be made by the party, or, if made by the attorney, some reason should be assigned therefor. {Phelps v. Piatt, 54 Barb. 557. That the moving party does not reside in the attorney's county is not a sufficient reason. (Fromme v. Lisner, 63 Hun, 290.) No fwior denaand for an inspection and discovery is essential where an alternative order to show cause is issued. {Blumberg v. Lindeman, 19 App. Div. 370; Albany Brass & Iron Co. v. Hoff- man, 12 Misc. 167; 86 Hun, 620.) The petition must state what information is wanted, and that the books or papers referred to contain such entries. {Walker v. Granite Bank, 19 Abb. iii; 44 Barb. 39; New E^land Iron Co. v. New York Loan and Improvement Co.. 55 How. 351; Phelps v. Piatt, 54 Barb. 557.) This must be stated upon positive affirma- tion, not upon information' and belief. (Walker v. Granite Bank, 19 Abb. in; 44 Barb. 39. See Amsinek v. North, 62 How. 115.) But if the party alleging the fact on information and belief is corroborated by the affidavit of a person who has had an opportunity of examining tbe books, the affidavit^ will be sufficient. {Kings Co. Bank v. Dougherty, if) St. Rep. 811.) It is not enough that the party believes or is advised that the books or papers contain material evidence, nor is it enough that they may, or even probably will, furnish information to obtain evi- dence which may be material. The books or papers themselves must contain the evidence, either independently or in connection with other proof. {Morrison v. Sturges, 26 How. 177; Thompson V. Erie R'y Co., 9 Abb. [N. S.] 212; Dickie v. Austin, 65 How. 420. See New England Iron Co. v. New York Loan and Improvement •Co., 55 id. 351.) The information wanted must be described in a particular, not in a general, manner, both for the pupose of enabling the opposite party to produce copies, make admissions, answer with accuracy the application, and to reserve from dis. -closure what he has a right to reserve, and also to guide the court ■or judge in making the proper directions, (Id.) The moving 188 Trial Practice. Order to show cause and proceedings thereunder. party must not only show what he wants, but must prove that he cannot obtain this information elsewhere. {Hauseman v. Sterling, 61 Barb. 347.) The necessity of obtaining the desired information in this peculiar manner must be shown, and that the ordinary means of obtaining it are not equally available. (New- England Iron Co. V. New York Loan and Improvement Co., 55 How. 351; Holtz V. Schmidt, 2 Jones & Sp. 28; Low v. Graydon, 14 Abb. 144; Commercial Bank of Albany V. Dunham, 13 How. 541; Stalker v. Gaunt, 12 Leg. Obs. 124; NtUhanv. Whitehill, 67 Hun, 3g8; Brevoort v. Warner, 8 How. 32!; Pegrauiw Carson, 10 Abb. 340 , 18 How. 519.) This necessity must be sliown by facts posi- tively alleged; not by a general allogation upon information and belief, {Kaui?e v. Isdell, 3 Rob. 699.) The necessity must exist in relation to the case to be made by the moving party, and not to- matters to be proved by the adverse party. {Herbert v. Spring, 1 Law Bull. 21 ; Cutter v. Pool, 54 How. 311 ; Andrews v. Town- shend, 16 Jones & Sp. 162 ; 2 Civ. Pro. R. 76 ; 14 Week. Dig. 243.) Facts must be alleged from which the court can determine for itself whether the evidence is material. {Broohlyn Life Ins. Co. v. Pierce, 7 Hun, 236 ; Cassard v. Hininan, 6 Duer, 695.) A general state- ment of deponent's conclusions in this respect is insufficient. Too much care cannot be exercised in the preparation of the moving^ papers, as it is not a matter of right to inspect books and papers, and the privilege is not given except in extreme cases where a refusal might involve the loss of a claim or defense ; or, in other words, un- less it is indispensably necessary. {Ilarhismi v. Varh Valkenhurgh, 5 Hun, 454.) (For form of petition, see Appendix.) Order to show cause and proceedings thereunder. — "When a proper application is made to a court or judge authorized to enter- tain it, an order may be made directing the party against whom tlie discovery or inspection is sought, to allow it, or in default thereof, to show cause before the court at a time and place and upon a notice therein specified, why the prayer of the petition should not be granted. It may also, if necessary or proper, direct that the pro- ceedings of the party be stayed until the hearing of the applica- tion although the stay exceeds twenty days. (Code of Civ. Pro., § 805.) (For form, see Appendix.) It will be noticed that this order to show cause is in some respects- Discovery of Books and Papers. 189 Motion to vacate the order. peculiar, and is not subject to the ordinary rules as to the time and place of its return or as to the effect of a stay contained therein. nd, where a party has served a notice of trial and filed a note of issue for a term at which the cause is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue for the succeeding term ; and the action must remain on the calendar until it is disposed of. (Code of Civ. Pro., § 977.) But where a cause has been noticed for trial and has not been • tried at a term held in any other county, a new notice must be I given to entitle a party to move the cause at a succeeding term ; I and this notice cannot be dispensed with by a general clause in the original notice. {Beekman v. Reed, 5 Cow. 23.) Where after notice of trial a pleading has been amended by either party and a new issue has thereupon been joined, a new notice of trial must be served. {Coler v. Lamb, 19 App. Div. 236; Ostr under v. Conkey, 20 Hun, 421 ; Romaine v. Bowdoin, 70 Hun, 366; Yates v. McAdam, 18 Misc. 295; Grindal v. DeLano, 40 St. Rep. 233; Graham v. Stirling Ins. Co., 19 Civ. Pro. R. 452; Gair v. Birmingham, 20 Civ. Pro. R. 233^ McBride v. Langan, 19 Civ. Pro. R. 41.) This is not necessary where a supple- mental pleading has been served. (Loratt v. Watson, 35 Hun, i553-) Failure to notice cause for trial. — The service of a notice of ' trial is a statutory prerequisite of forcing the opposing party to 'trial {Yat€S v. McAdam, 18 Misc. 295), and the party who has received but has not served a notice of trial is under the disad- vantage of being necessarily in attendance at the trial term with his witnesses without any certainty that his case will be tried Putting the Cavss on the Calendar. 199 A cause not on the calendar cannot be moved for trial, when reached iti its order on the calendar. The only redress of the party so circumstanced where the adverse party fails to move the cause for trial, is to compel the party serving the notice to pay the costs of the term. (Seifert v. Schillner, 62 How. 496.) A party noticing a cause for trial may by obtaining repeated postponements at the trial term, and at all times treating the cause as entirely under the control of the court, waive his right to object that the adverse jjarty is not in position to press the cause for trial by reason of aot having served the statutory notice. {Haberstich v. Fischer, 6j How. 318.) SECTION xxn. Putting the Cause on the Calendar. The party serving a notice of trial must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law ; and if an issue of fact, whether it is triable by a jury, or by the court without a jury. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The clerk must prepare the calendsff and have the necessary copies ready for distribution at least five days before the com- mencement of the term. In the counties of New York, Kings, Albany, Erie, Monroe and Onondaga, where a party has served a notice of trial and filed a note of issue for a term at which the cause is not tried, it is not necessary for him to serve anew notice of trial, or file a new note of issue for a succeeding term ; and the srction must remain on the calendar until it is disposed of. (Code of Civ. Pro., § 977. See Harden v. Harden, 28 App. Div. 301.) Special rules govern the calendar practice in the first judicial district. A cause not on the calendar cannot be moved for trial. (^Culver V. Felt, 30 How. 442 ; 5. C-, 4 Rob. 681. See Browning v. Paige, J How. 487). Unless a note of issue has been filed for the term for which a cause has been noticed for trial the notice is ineffec- tual and the cause will be struck from the calendar on motion. {Siefke V. Siefke, 21 Misc. 407.) Bjt when the cause has been 200 Trial Practice. Preferred causcs- regularly noticed for trial, but through mistake the attorney has failed to file a note of issue with the clerk as required by the Code, the court may, in its discretion, allow the attorney to fur- nish the clerk with a proper note of issue, and have the cause entered on the calendar according to the date of the issue, pro- vided an application for such relief is made on the first day of the Tfial Term (^Clinton v. Myers, 43 How. 95.) The issues on the calendar must be arranged by the clerk in the ''following order: 1. Issues of fact. 2. Issues of law. Where a jury is in attendance the issues must be disposed of in the same order; unless, for the convenience of parties, or the dispatch of business, the judge holding the term otherwise directs. (Code of Civ. Pro., §978.) Where a jury is not in attendance issues of liw have preference over issues of fact, unless the judge holding the term otherwise directs. (Id., § 979.) Preferred causes.^A party putting a cause on the calendar and noticing it for trial should determine whether it is entitled to preference in the order of trial under some provision of the Code; and whether the case is one requiring him to procure an order from the court or judge directing that the cause shall have preference, as in that case he must serve a copy of the order with or before the notice of triaL The provisions of the Code in res- pect to preference are as follows : A. trial, motion, appeal or hearing in an action by the people to recover money, funds, credits or other property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or government interest by a municipal or other pablic corporation, or by a board, ofificer, custodian, agency or agent of the State, or of a city, county, town, village or other division, subdivision, department or portion of the State, which the defendant has, without right, obtained, received, converted or disposed of, or to recover damages or other compensation for so obtaining, receiving, paying, converting or disposing of the same; or the aiding or abetting thereof, is entitled, on the application of the Attorney-General, to a preference over any other business at a term or sitting of any court of the State, irrespective of its place upon the calendar. (Code of Civ. Pro., § 789.) Putting the Cause on the Calendar. 201 Civil causes entitled to preference. A criminal action, including an appeal or other proceeding in a criminal cause, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one : 1. An action or special proceeding, brought by or against the people of the State, or by or against any State officer or board of State officers as such, where the attorney of said people, State officer or board of State officers has given notice, at the time of service of notice of trial or argument, of a particular day in the term on which he will move it. If the action or special proceed- ing is not moved by said attorney for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument ; other- wise it shall not be moved out of its order at that term, except by the special order of the court. 2. An action or special proceeding, in which the city of New York, or a board of officers, exercising powers conferred by a statute for the protection of public health, or public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects, or the commissioners of pilots in the city of New York, are parties ; where a notice, similar to the notice prescribed in the last subdivision, has been served by their attorney, at the time of service of the notice of trial or argument. The provisions of the last subdivision, relat- ing to moving the trial or argument, apply to a cause within this subdivision. 3. In the Court of Appeals or the Supreme Court, an appeal taken by either party, in an action or special proceeding other than as specified in subdivision first of this section, where the people of the State, or a board of State officers, are sole parties, or a State officer is sole party, plaintiff or defendant. 4. In the Court of Appeals, an action, the party to which has died, pending the action, where the pendency of the action pre- vents a final settlement of the estate of the deceased party. 5. In any court, an action or special proceeding, in which an executor or an administrator, or an infant, or the receiver appointed 202 Trial Practice. Order in which causes are preferred. by the court or general assignee for the benefit of creditors, or the committee of a lunatic or an idiot, or a creditor of a deceased insolvent debtor, suing for the benefit of himself and other cred- itors interested in the estate or property of such deceased debtor, where a right of action is given by express provision of law, is the sole plaintiff or sole defendant ; an action or special proceeding for the construction of, or an adjudication upon, a will in which the administrator with the will annexed, or the executor of the will, is joined, as plaintiff or defendant, with one or more other parties ; and in the Court of Appeals or the Supreme Court, an appeal from the decree or decision of a Sur- rogate's Court, determining a will to be valid, and admitting it to probate, or determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration, or directing the distribution of a fund, or payment of money by an executor or an adminis- trator, in pursuance of an order or decree made on an interme- diate, final or judicial accounting or otherwise, by an adminis- trator or an executor. 6. An action for dower ; where the plaintiff makes proof by affidavit to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy; an action for the partition of real property. 7. An action against a corporation or joint-stock association, issuing bank notes or any kind of paper credits to circulate as money ; or by or against a receiver of such corporation or asso- ciation ; an action in which a county or town is sole plaintiff or defendant. 8. An action against a corporation, founded upon a note, or other evidence of debt, for the absolute payment of money. An action upon an undertaking given upon an appeal to the Court of Appeals, or to stay the execution on an appeal to the Court of Appeals. 9. An action against a sheriff in his official capacity. 10. A cause entitled to preference by the general rules of practice, or by the special order of the court in the particular case. 11. In any court, an action for libel or slander. 12. In the Court of Appeals, all appeals from judgments of Putting the Cause on the Calendar. 203 Proceedings to obtain a preference. •affirmance rendered by the Appellate Division of the Supreme Court in cases enumerated in subdivision two of section one hundred and ninety-one of this act, where the decision of the Appellate Division has been unanimous and an appeal has been taken or allowed, as in said subdivision of said section provided. Where an issue of law and an issue of fact, or two or more other questions of different natures, come before the same term of the court for trial or hearing, the preference given by this section affects only the order in which the issues or questions of the same nature are to be disposed of. (Id., § 791.) Where a writ of mandamus, or of prohibition, has been issued from the Appellate Division of the Supreme Court to a Special Term, or a judge of the same court, the cause may, in the dis- cretion of the court, or, where an appeal is taken therein to the Court of Appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. (Id., § 792.) It is provided by the general rules of practice that whenever, in any action, an issue shall have been joined, if the defendant be imprisoned under an order of arrest in the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred. (Rule 36.) The right to have the trial of the action preferred, where the defendant is imprisoned under an order of arrest in the action, or where the property of the defendant is held under attachment is not given for the benefit of the defendant alone, but is also available to the plaintiff, who may move that the cause be pre- ferred. {Knox V. Dubroff, 17 App. Div. 290.) But in an action against a sheriff in his official capacity, it seems that the right of a preference is personal to the sheriff, and that the plaintiff is not entitled to assert it. (Walker v. Tamsen, 18 Misc. 734.) Proceedings to obtain a preference. — The Code provides two methods of obtaining a preference in the trial of a cause, one applicable to the counties of New York, Kings and Erie and to the seventh judicial district, and the other to the remain- -der of the State. The general practice will be first noticed. A preference in any of the class of actions mentioned in :section 789 of the Code is obtained as of course on the appli- 2©4 Trial Practice. Proceedings to obtain a preference. cation of the Attorney-General without regard to the position of the same on the calendar. Section 790 deals with criminal actions and need not be con- sidered. A preference under subdivisions first and second of section 791 of the Code muy be obtained by serving with the notice of trial a notice of the paiticuiar day of the term on which the cause will be moved. Unless iJds notice is given the cause will not be enti- tled to preference. [People v. Kinney, 92 N. Y. 647.) Where the right to preference appears from the pleadings, a claim for a preference, specifying the provision of law under which it is made may be inserted in the note of issue filed with the clerk and it then becomes the duty of the clerk to place the cause in its proper place among the preferred causes at the head of the calen- dar. (Code of Civ. Pro., § 793.) This practice may be followed in an action against a corporation upon its promissory note, or upon a money judgment recovered against a corporation in another state. {Eastern Nat. Bank v. Brunswick Chemical Works, 18 Abb. N. C. 473; Mc Arthur v. Chemical Fire Ins. Co., 6j How. 510.) Where the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must pro- cure an order therefor from the court or a judge thereof upon notice to the adverse party, and serve a copy of the order upon the attorney for the adverse party with or before the notice of trial or argument. (Code of Civ. Pro., § 793 ; Robertson v.Schell- haas, 62 How. 489; City Nat. Bank v. Nat. Park Bank, Id., 495 ; Bart lei t v. Musliner, 92 N.Y. 646 ; Bank of Attica v. Metropolitan Nat. Bank, 91 N.Y. 239.) An application for an order giving preference on the calendar to an action for the partition of real property or to an action for dower, may be made ex parte; and in the latter action the plain- tiff must prove by affidavit to the satisfaction of the court or judge that she has no sufficient means of support aside from the estate in controversy. (Code of Civ. Pro., § 793 ; see Bartlett v. Musliner, 92 N. Y. 646.) An order made upon such application is conclusive. (Code of Civ. Pro., § 793.) In any case where an application for an order is necessary, the Putting the Cause on the Calendar, 205 In the counties of New York, Kings and Bj-Jit moving papers should set forth the facts which entitle the cause to a preference under some of the provisions of the Code or rules of practice. If the necessary facts are established on the hearing an order will be made directing the action to be tried as a pre- ferred cause. A copy of the order must be served upon the attorney for the adverse party with or before the notice o-f trial. The order, though not appealable, may be vacated by the judge or judges holding the term at which the preferred cause is noticed for trial or hearing &r at such other term as jhall be prescribed by the general or special rules of practice. (Code of Civ. Pro., § 793-) Every court has inherent power to regulate its own calendar and independent of the rules of practice may determine what cause shall be tried first, though it cannot decline to prefer a cause entitled to a preference under the statute or rules of prac- tice. {Smith v. Keepers, 5 Civ. Pro. R. 66 ; 66 How. 474; Hwn- newell v. Skafer, 30 St. Rep. 831.) In the counties of New York, Kings and Erie, and in the seventh judicial district, no action or special proceeding can be placed as a preferred cause upon the calendar of any circuit court, or trial term or special term of any court, in pursuance of the modes of procedure above noticed, but the party desiring a pref- erence of any cause must serve upon the opposite party with his notice of trial a notice that an application will be made to the court at the opening thereof, or to such justice or other term of court or at such other time as shall be prescribed by general or special rules of practice, for leave to move the same as a preferred cause, and if the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried, the notice must be accompanied by an affida- vit showing such facts. The application for a preference must be made at the opening of the court or to such justice or other term of court or at such other time as .shall be prescribed by the general or special rules of practice, and if it appears that the cause is enti- tled to a preference and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard. (Code of Civ. Pro., § 793.) It is the settled practice in the first judicial district that an 206 . Trial Practice. Preference in the first jadicial district, application for the preference of a cause must be made at the comrciencement of the term for which the notice of trial is served. If noit so made the right to a statutory preference is waived. (Marks V. Murphy, 27 App. Div. 160.) By the rules adopted by the Appellate Division for the regu- lation of Trial Terms of the Supreme Court in the first judicial district, and to regulate the calendar practice therein, it is pro- vided as follows : " There shall be a special calendar upon which shall be placed all actions which have been awarded or are en- titled to a preference, either under express provisions of law, or by the general rules of practice, or by any special rule, which calendar shall be called and the cases thereon tried and disposed of at Part 2 of the Trial Term. Any party entitled to have a case preferred may, upon two days' notice, apply to the court at Part 2 to have the. cause placed upon such preferred calendar^ There shall also be placed upon this calendar for trial all issues sent from the Special Term for trial by jury, all issues in special proceedings to be tried by jury; and any issue in any equity action as to which the parties are entitled by law to a jury trial where such issue has been framed to be so tried. All such cases shall be placed upon the preferred calendar in the order of the filing with the clerk of this Part of the order granting the pref- erence or directing the issues to be tried." (Rule 3.) " In an action for goods sold and delivered, or in an action brought to recover upon a promissory note, check, bill of ex- change, bond, policy of life insurance, lease, undertaking or other instrument for the payment of money only, where it shall ap- j)ear by affidavit that the trial of the action will not occupy over two hour.s, either party may apply to Part 2 of the Trial Term for an order placing the case upon the preferred calendar. Upon such application the court may, by order, if satisfied that the trial of the action will not occupy more than two hours, and if no good reason is shown why the same should not be promptly tried, place the same upon the preferred calendar and dispose of the same in its regular order thereon. If the trial shall occupy more than two hours, it shall go to the foot of the general cal- endar, unless for good cause the court shall otherwise order." (Rule 6.) The rules adopted by the Appellate Division for the regulation Putting the Cause on the Calendar. 207 Rules adopted for the first judicial district. of the Special Terms of the Supreme Court in the first judicial district and establishing the calendar practice therein, provide as follows : " There shall also be made up a special calendar, which shall be known as the preferred calendar, upon which shall be placed all undefended actions for divorce, or for the annulment of marriage ; all actions entitled under the Code, or the general or special rules of practice, to a preference ; all applications for judgments in actions where issues have been framed and sent to a jury for trial ; all applications for final judgment where an in- terlocutory judgment has been entered and an account has been taken, or other proceedings had before a referee ; all motions for a new trial on the ground of surprise or newly discovered evi- dence, or upon a case and exceptions ; all motions to confirm a referee's report, and for final judgment in any action in which an issue of fact has been tried by a referee where application to the court for final judgment is necessary; all applications for final I judgment in proceedings to condemn real estate for public use ; I and all applications for final order in proceedings where an alter- native writ of mandamus has been issued. The special preferred calendar herein provided for shall be called by the justice assigned to Part 3 of the Special Term, and shall be disposed of by him ; provided, however, that in case he find it impossible to dispose of such calendar, he may, from time to time, as may be neces- sary, assign the cases from such calendar to the other parts of the Special Term for hearing and decision." (Rule 8.) " In actions brought for the foreclosure of a mortgage, or for the foreclosure of mechanic's liens, either party may apply to the Special Term, Part 3, upon notice of two days to the adverse party to have the case placed upon the preferred calendar to be called in Part 3 of the Special Term, and if it shall appear to , the court upon such application that the trial will not be a pro- i tracted one; or that, for any special reason, the case should be promptly disposed of, it shall be placed upon the preferred cal- endar for trial." (Rule 10.) " In all cases in which a preference is given by express provi- sion of law, or by the general rules of practice, or by special rules, the party entitled to such preference may, upon two days' notice, apply to Special Term, Part 3, for an order placing the cause upon the preferred calendar. In case such preference is SOS Trial Practice. Preparation of copy papers for the Court. granted, the case shall be placed upon the preferred calendar as of the date when the motion was made and shall be called in its order." (Rule ii.) SECTION XXIII. Preparation of Copy Papers for the Court. Where the issue is brought to trial by the plaintiff, he must furnish the court with copies of the summons and pleadings, and of the offer, if any has been made. Where the issue is brought to trial by the defendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant. (Code of Civ. Pro., ggSi.) If the action is brought to recover the possession of chattels, and the plaintiff has served a notice upon the defend- ant's attorney that he abandons so much of his claim as relates to chattels which have not been replevied, a copy of this notice must be furnished to the court or to the referee upon the trial of the issue of fact with a copy of the summons and of the plead- ings. (Id., § 1719.) So, if in such action the defendant has served a notice upon the plaintiff's attorney that he demands judgment for the return of a chattel replevied and delivered to the plaintiff, or to a third person, or for its value, with or with- out damages for the detention thereof, a copy of this notice must be furnished to the court or referee with a copy of the summons and of the pleadings. (Id., § 1725.) The attorney who fur- nishes the copy pleadings for the use of the court should plainly designate on each pleading the part or parts claimed to be ad- mitted or controverted by the succeeding pleadings. (See Gen. Rule 20.) The mode of doing this is a matter of taste and con- venience, to be determined by the attorney or his clerk. SECTION XXIV. Service of an Affidavit of Merits. Where the answer served by the defendant is unverified, he should prepare an affidavit of merits, file it with the clerk, and serve a copy upon the plaintiff's attorney before, or on the first day of the Trial Term, to prevent the plaintiff from taking an in- quest in the action out of its regular order on the calendar. (See Smith v. Aylesworth, 24 How. 33; Brainard v. Hanford, 6 Hill, Miscellaneous Papers for the Trial Term. 209 Papers should be drawn or drafted in advanca. 368.) Service at a later date may be sufficient to prevent the inquest if so made as to come to the knowledge of the plaintiff's attorney; but sucli experiments are not generally remunerative. (Id. See, also, Anonymous, 6 Abb. 512. If the answer is verified no affidavit of merits is required (Code of Civ. Pro. §980); and if an affidavit has once been filed and served, no other is necessary. (Gen. Rule 23.) (For sufficiency of the affidavit, see anle, p. 89.) (For a form, see Appendix.) SECTION XXV. Miscellaneous Papers for the Trial Term. Every paper which may be required on the trial of a cause at the Trial Term should be drawn or at least drafted in advance as part of the preparation for trial. A crowded court room is but a poor substitute for an office ; and the time of counsel engaged in a trial can be better employed than in doing or direct- ing mere clerical work. Witnesses may be absent when the cause is called, and proof of due service of subpoenas may be needed as the foundation of an application for an attachment or for a postponement of the trial. The adverse party may make default upon the trial, and proof of due service of a notice of trial may be necessary to lay the foundation for a dismissal of the complaint, or for an inquest, as the case requires. If a written notice to produce papers has been served upon the adverse party, proof of such service should be prepared to meet any possible denial on the trial. In an action of partition, a duly certified search by the clerk of the county in which the property sought to be partitioned is loca- ted, showing that no creditor, not a party, has a lien on an undi- vided share or interest of any party to the action, may save the cost and delay of a reference ; and if the search shows an appar- ent lien, which has in fact been satisfied, an affidavit showing that fact should be procured to be submitted to the court in connection with the search. (Code of Civ. Pro., § 1561.) These papers may be equally important in actions for dower. (Id., § 1621.) In nearly all real actions, or where a question of title to lands is involved, a full and accurate abstract of title is almost indis- pensable. Maps showing the surveys made of the premises in 14 210 Trial Practice. No preparation for trial complete without carefully prepared brief. dispute, or the location of boundary lines, or the topography of certain places, or showing the location of important points or places, may also be invaluable on the trial of real actions, or even in actions for personal injuries. Estimates made by experts as to the value of buildings, ma- chinery, and the like, are often of value in connection with the oral testimony of the expert, in actions involving questions as to the value of numerous articles, such as actions upon policies of insurance and the like. No preparation for trial is complete unless it embraces a care- fully prepared brief of the law and of the facts. The brief upon the law of the case should cover every question which may arise upon the trial so far as may be anticipated. The brief upon the facts may conveniently be classified by topics, with the names of the various witnesses to be called upon the different subjects noted in the margin. This is specially important if counsel un- familiar with the facts are to assist upon the trial. In order that the brief of facts shall not be misleading and result in surprises at the trial, the attorney should have an inter- view with each witness whom he proposes to call, and ascertain what he knows about the facts of the case and the extent and limitations of his memory. He has no legal or moral right to go further in this direction. It is his duty to extract the facts from the witness ; not to pour them into him ; to learn what the wit- ness does know ; not to teach him what he ought to know, \Matter of Eldridge, 82 N. Y. 161, 171.) CHAPTER iV. TRIAL OF ISSUES OF LAW BY THE COURT OR BY A REFEREE. SECTION L General Statutory Provisions. An issue of law arises only upon a demurrer. (Code of Civ. Pro., §964.) An issue of law must be tried as prescribed in chapter 10 of the Code of Civil Procedure, unless it is disposed of by motion for judgment on the demurrer as frivolous, as pre- scribed by section 537 of that act. (See Id., § 965.) If an issue of law and an issue of fact arise in one action, the issue of law must be first disposed of unless a different disposition is ordered by the Special Term, on an application made upon notice, or is directed by the judge holding the term where those issues arc regularly upon the calendar for trial. (Id., §§ 996, 997. See ante, p. 53.) An issue of law must be tried by the court, unless it is referred. (Id., § 969.) It must be referred upon the consent of the parties manifested by a written stipulation, signed by their attorneys, and filed with the clerk, unless a defendant to be affected by the result of the trial is an infant, or the action is brought to annul a marriage, or for a divorce or separation, or is brought by some person other than the attorney-general to obtain a dissolution of a corporation, the appointment of a re- ceiver of its property, or the distribution of its property, in either of which cases it can be referred only by consent of court. (See ante, p. 67 ; Code of Civ. Pro. §§ loii, 1012.) If not referred, or disposed of by motion, it must be tried at a term held by one judge only. An issue of law in the Supreme Court may be tried at a Trial Term, or at any Special Term, as prescribed in the general rules of practice (Id., § 976), and in any county within the judicial district embracing the county wherein the action is triable; but after the trial the decision and all other papers re- lating to the trial must be filed, and the judgment rendered must be entered in the last-named county. (Id., § 990.) 2U 313 Trial Practice. General statutory provisions. In the first judicial district all issues of law are placed upon a special calendar, which is called and disposed of in Part 3, of the Special Term. The mode of putting the cause on the calendar and of bring- ing the issue to trial has been already noticed. {Ante, p. 199. See Code of Civ. Pro., §§ 977, 980.) When a jury is in attend- ance at the term, the issues of fact must be disposed of before the issues of law, unless for the convenience of parties or the dispatch of business, the judge holding the term otherwise di- rects. (Id.. § 978.) When no jury is in attendance, issues of law have a preference over issues of fact, unless the judge hold- ing the term otherwise directs. (Id., § 979.) If the trial is before a referee, it must be brought on upon like notice, and conducted in like manner, and the papers to be furn- ished thereupon are the same, and are furnished in like manner as where the trial is by the court. (Id., § 1018.) Upon the trial of an issue of law the referee exercises the same power as the court to permit a party in fault to plead anew or amend ; to direct the action to be divided into two or more actions ; to award costs, and otherwise dispose of any question arising upon the decision of the issue referred to him ; and exercises the power in like manner and upon like terms as a similar power is exercised by the court upon a trial. (Id.) SECTION II. General Practice on the Trial. The trial of an issue of law is a mere oral argument by the counsel, based upon the pleadings, or a mere submission of the issue upon written points, without argument, as counsel may prefer. If the issue is brought to trial by the plaintiff he must furnish the court with copies of the summons and pleadings. If the issue is brought to trial by the defendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant. (Code of Civ. Pro., § 981.) Ordinarily the nec- essary papers are furnished to the court by the party taking the demurrer (See Gen. Rule 40), but he is not required to serve copies of them upon the adverse party under the rule cited. {Gait v. Finch, 24 How., 193.) The attorney Principles Governing Decision of an Issue of Law. 213 Decision on demurrer to complaint. who furnishes the copy pleadings foe use of the court on a trial should plainly designate on each pleading the part or parts there- of claimed to be admitted or controverted by the succeeding pleadings. (Gen. Rule 20 ) This rule is of little practical value on the trial of an issue of law, but is nevertheless a rule applicable to all trials. The papers having been furnished to the court, the argument is opened by the party taking the demurrer, is replied to by the adverse party, and is closed by the party demurring. No more than one counsel can be heard on each side, and then not more than one hour each, unless the court otherwise orders. (Gen. Rule 47.) After hearing the counsel for the several parties the determination reached by the court or referee is embodied in a written decision or report which directs the appropriate judg- ment. SECTION III. Pkinciples Governing the Decision of an Issue of Law. A demurrer to a complaint upon the ground of insufficiency admits every relevant fact properly pleaded therein, but in effect alleges that those facts in law do not constitute a cause of action, and submits that question, and that question alone to the judg- ment of the court. (Groesbeeckv. Dunscomb, 41 How. 302.) A demurrer upon that ground can be sustained only when it appears that after admitting all the facts alleged, or that can by reason- able and fair intendment be implied from them, the complaint fails to state a cause of action. {Marie v. Garrison, 83 N. Y. 14; Sanders v. Sautter, 126 N. Y. 193 ; Sage v. Culver, 147 N. Y. 241; Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451 ; Millikenv. Western Union Tel. Co., 1 10 N. Y. 403 ; Wessels v. Carr, 15 App. Div. 360; Swan v. Mut. Res. Fund Life Assn., 20 App. Div. 255; Cornwell v. Clement, 87 Hun, 50 ; Pettibone v. Moore, 75 Hun, 461 ; Savage v. City of B^lffalo, 59 Hun, 606 ; Lorillardv. Clyde, 86 N. Y. 384.) If the requisite allegations can be gathered from all the aver- ments in the complaint, the demurrer must be overruled, although the facts are imperfectly, informally, or only argumentatively averred, and although the complaint lacks definiteness and pre- cision, or is deficient in technical language. {Marie v. Garrison.. 314 Trial Practice. Decision on dercurrer to complaint. 83 N. Y. 14, 23 ; Lorillardv. Clyde, 86 id. 384; Zabriskiev. Smith, 13 id. 330; Lynch v. Levy, 11 Hun, 145 ; Sage v. Culver, 147 N. 241 ; Sanders v. Sautter, 126 N. Y. 193 ; Gray y. Fuller, 17 App.' Div. 29; Kain v. Larkin, 141 N. Y., 144.) Under the more recent authorities, pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out ; the nature of the pleader's claims are sufficient if under them he would be entitled to give the necessary evidence to establish his } cause of action. (Berney v. Drexel, 33 Hun, 34; Rochester Ry. \jCo. V. Robinson, 133 N. Y., 242 ; Coatsworth v. Lehigh Valley R. j €«., 156 N. Y., 451.) A complaint cannot be overthrown by a demurrer unless it presents defects so substantial in their nature and so fatal m their character as to authorize the court to say that, taking aH the facts to be admitted, they furnish no cause of action whatever. (Olery v. Brown, 51 How. 92; Richardv. Edick, 17 Barb. 260; Mackey v. Auer, 8 Hun, 180; Butterworth v. O'Brien, 39 Barb. 192; 24 How. 438; Pierson v. McCurdy,6i id. 134.) If the pleader, in setting forth his cause of action, does in fact show a good cause of action, although not the one intended, his pleading will, nevertheless, be sustained upon demurrer, for it is to be measured, not by his view of the law, but by the law itself. ( Witherhead v. Allen, 3 Keyes, 562, 565.) In case a plaintiff by accident or des^n sets forth a legal cause of action in his com- plaint which he erroneously supposes to be an equitable cause of action, and demands a money judgment as well as equitable relief a demurrer to the complaint on the ground that it does not state a cause o^ action will not be sustained. {Porous Plaster Co. v. Seabury,^}, Hun. 611 ; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362.) A demurrer will not lie to the demand for relief. (^Mackey v. Auer, S Hun, 180 ; Walker v. Spencer, 13 Jones & Sp. 71; Garner v. Harmony Mills, 6 Abb. N. C. 212; Garner v. Thorn, 56 How. 452.) The fact that the plaintiff has not demanded the precise relief to which he appears to be entitled, if the facts stated in the complaint show that the plaintiff is entitled to any relief legal or equitable [Wetmore v. Porter, 92 N. Y. "]€> : Wright V. Wright, 54 N. Y. 437), or has demanded more relief than he is entitled to [Bealv. Hayes, 5 Sandf. 640; Andrews m. Shaffer, 12 Hew. 441, 443; Turner v. Bayler, 5 App. Div. 623; Moran v. Principles Governing Decision of an Issue of Law. 215 Decision on demurrer to complaint. Anderson, i Abb. 288 ; Hecker v. De Groot, 15 How. 314 ; Moses V. Walker, 2 Hilt. 536; Bishop v. Edmiston, 16 Abb. 466; Price v. Brown, 10 Abb. N. C. 67 ; 60 How. 511), if he is entitled to any part of the relief which he asks (Roeder v. Ormsby, 22 How. 270 ; 13 Abb. 334), or has not demanded all the relief which he is enti- tled to, if the demand is appropriate to the cause of action alleged (Buess V. Koch, 10 Hun, 299; 53 How. 92), or has demanded judgment for a sum of money, by way of damages, where the facts alleged would entitle him to a recovery of the same amount by way of equitable relief {Hale v. Omaha Nat. Bank, 49 N. Y, 626), is no ground for a demurrer, and if one is taken it must be overruled. But it has been held that if the plaintiff is entitled to none of the relief which he demands, the demurrer will be sus- tained, although the facts alleged would have entitled him to other relief {Walton v. Walton, 32 Barb. 203; 20 How. 347; 11 Abb. 231); and that in case a plaintiff has a right to maintain an action at law or a suit in equity, and he elects to bring a suit in equity demanding only equitable relief, but fails to state sufficient facts in his complaint to constitute an equitable cause of action, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action will be sustained though the facts alleged are sufficient to constitute a legal cause of action ; and so in case he elects to bring an action at law demanding only legal relief, but fails to state facts in his com- plaint sufficient to constitute a legal cause of action, and the defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, the demurrer will be sustained though the facts alleged are sufficient to consti- tute an equitable cause of action. ( Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362 ; Edson v. Girvan, 29 Hun, 422; Swart V. Boughton, 35 Hun, 281; Willis v. Fairchild, 19 Jones & Sp. 405; Fisher v. Charter Oak Life Ins. Co., 20 Id. 179.) A general demurrer to a complaint containing more than one cause of action in separate counts must be overruled unless all of the counts are bad. {Martin v. Mattison, 8 Abb. 3 ; Jaques v. Morris, 2 E. D. Smith, 639 ; Butler v. Wood, 10 How. 222; Seaver V. Hodgkin, 63 id. 128 : Cummings v. American Spring & Gear Co. 87 Hun, 598; Grimskaw V. Woolfall, 40 St. Rep. 299; Hale v. Omaha Nat. Bank, 49 N. Y. 626. And see Newbery v. Garland, 216 Trial Practice. Not every allegation in a pleading is admitted in a demurrer. 31 Barb. 121.) A demurrer must be sustained or fail to the extent to which it is applied. {Peabody v. Washington County Mut. Ins. Co., 'o Barb. 339; Gearonw. Sacks, 21 App. Div. 5.) It is not every allegation in a pleading that is admitted by a demurrer. Only such relevant facts as are well pleaded are so admitted. A conclusion of law, as for example that a transaction was in violation of a statute [Hall v. Bartlett, 9 Barb. 297), or that the plaintiff has no adequate remedy at law {Starbuck v. Farmers Loan & Trust Co., 28 App. Div. 308), or that the judgment of a court of another state is void by the laws of that state (iT/wwzVrv. Kinnier, 44 N. Y. 535), or as to the effect of a legal instrument {Master son v. Tozvnsend, 123 N. Y. 458; Swan v. Mut. Res. Fund Life Ass'n, 20 App. Div. 255; Buffalo Catholic Institute v. Bitter, 87 N. Y. 250; Bogardus v. New York Life Ins. Co., loi N. Y. 328), or the meaning of a contract {Bonnell v. Griswold, 68 N. Y. 294), or that the defendant has committed waste {Groesbeck v. I Dunscomb, 41 How, 302), is not admitted by the demurrer (See j also, Supervisors of Saratoga v. Seabury, 11 Abb. N. C. 461); and where the allegations of a pleading are contradictory, the demurrer admits only those allegations which the law adjudges to be true. (Freeman v. Frank, 10 Abb. 370.) If the complaint in an action is insufficient a demurrer upon I the ground that two or more causes of action have been im- properly joined, cannot be sustained. Where no cause of action is alleged there can be no improper joinder. {Bulger v. Coyne, ' 20 App. Div. 225.) And on a demurrer to a complaint for insufficiency only, the court will not consider the question of the plaintiff's capacity to sue {VanZandt v. VanZandt, 17 Civ. Pro. R. 448; O'Reilly, etc, Co. v. Greene, 18 Misc. 423), or the want of jurisdiction of the subject of the action {Drake v. Drake 41 Hun, 366), or of a misjoinder of parties plaintiff. {Berney V. Drexel, 33 Hun, 419.) An answer is not bad upon demurrer if, by a liberal construc- cion, its allegations constitute a defense, although it may be in- artificialiy drawn and commingle denials with new matter. {Rice V. O' Connor, 10 Abb. 362.) A demurrer to a counter-claim can- not be sustained upon the ground that it does not constitute a defense to the cause of action set forth in the complaint. {Armour v. Leslie, 9 Jones Sc Sp. 353.) Principles Governing Decision of an Issue of Law. 217' Decision on demurrer to answer. In determining a demurrer to a separate defense, such defense must be considered as standing alone, and cannot be aided by other parts of the pleading, unless, by a distinct reference, they are made a part of the defense demurred to. {Ritchie v. Garrison, 10 Abb. 246; fackson v. Van Slyke, 44 Barb. 116, 118, note; Loosey v. Orser, 4 Bosw. 391 ; Victoria Webb, etc., Manuf. Co. v. Beecher, 55 How. 193; Roldan v . Power , 14 Misc. 480; Douglass V. Phcenix Ins. Co., 138 N. Y. 209.) Nor can the allegations of a cause of action in a complaint which has been demurred to be supplemented by statements made in another cause of action not distinctly connected therewith by appropriate words. {Andersofi V. Speers, 58 How. 68; Simmons v. Fairchild, 42 Barb. 404.) But a pleading or portion thereof demurred to must be con- sidered as a whole ; and upon demurrer to a complaint for insuf- ficiency, allegations tending to discharge the defendant must be considered as well as those tending to charge him. {Calvo v. Davies, 73 N. Y. 211 ; Kuehnemundt v. Haar, 58 How. 464. See Broome v. Taylor, y6 N. Y. 564.) Upon a demurrer to a partial defense set forth as prescribed in section 507 of the Code, the question is whether it is sufficient as a defense to one or more of the separate causes of action to which it refers. (Code of Civ. Pro. § 508.) Unless pleaded as a partial defense it must be tested on demurrer as if pleaded as a complete defense. {Golden v. Health Department, 21 App. Div. 420; Thompson v. Halbtrt, 109 N. Y. 329.) Upon a demurrer to an answer the sufiSciency of the complaint may be attacked, and if the latter pleading does not state a cause of action, the demurrer to the answer, or to any part thereof, must be overruled. In such case there is nothing to be answered, and one answer is as good as another. (Newman v. Board of Super- visors of Livingston Co., i Lans. 476; Clark v. Poor, 73 Hun, 143; Kingv. Townshend, 78 Hun, 380; Metzgar v. Carr, 79 Hun, 258; Village of Little Falls v. Cobb, 80 Hun, 20 ; Douglass v. Coonley, 84 Hun, 158 ; People v. Booth, 32 N. Y. 397; Baxter v. McDonnell, 154 N. Y. 432.) A demurrer searches the record for the first fault in pleading and reaches back to condemn the first pleading that is defective in substance. (Id.; Henriques v. Yale University, »S App. Div, 354.) Thus on the defendant's demurrer to the plaintiff's reply the complaint may be attacked, and if; 218 Trial Practice. Attacking complaint on demurrer to answer. fatally defective and incapable of amendment, may be dismissed on the merits. (Id.) Wnen the defendant attacks the complaint upon the argument of the denaurrer to the answer it is in sub- stance a demurrer ore tenus to the complaint, and must be decided upon the same principle as though a formal demurrer to that pleading was interposed. [Golden v. Health Departinent, 21 App. Div. 420.) If the demurrer is interposed to an affirmative defense consisting of new matter only and containing no denial, or to a separate answer containing no denials, although other parts of the answer not demurred to may contain denials, all the allegations of the complaint are upon the argument of the de- murrer to be deemed admitted. (Id.: Wiley v. Village of Rouses Point, 86 Hun, 495; Douglass v. Phcenix Ins. Co., 138 N. Y. 209; Valentine v. Lunt, 51 Hun, $45-) If the complaint contains two counts, and the answer demurred to is general so as to apply to either count, the demurrer must be examined upon the merits unless borti counts are defective ; but if neither of the counts sets forth a cause of action, the sufficiency of the answer de- murred to cannot be considered. {Baxter v. McDonnel, 154 N. Y. 432.) In the latter case judgment must be rendered for the defendants upon the demurrer to the answer. (Douglass v. Coonley, 84 Hun, 158.) In order to sustain a demurrer upon the ground that the plain- tiff has not legal capacity to sue, it must affirmatively appear, upon the face of the complaint, that the plaintiff has not that capacity. {Phxnix Bank v. Donnell, 40 N. Y. 410; Barclay v, Quicksilver Mining Co., 6 Lans. 25 ; Second Nat Bank of Utica v. Welti, 53 How. 242 ) The same rule applies to a demurrer for defect of parties. {Haines v. Hollister, 64 N. Y. i.) An issue of law raised by a demurrer must be disposed of according to the law at the time of the trial. (Lewis v. City of Buffalo, 29 How. 335.) Upon the question of the sufficiency of the demurrer, the copy pleading served upon the party demurring thereto must control. (Lane v, Salter, 4 Rob. 239, 241.) Decision or Report on Trial of an Issue of Law. 219 When to be rendered and filed. SECTION IV. Decision or Report on the Trial of an Issue of Law. When to be rendered and filed.— Upon the trial by the court of an issue of law, its decision in writing must be filed in the -clerk's office within twenty days after the final adjournment of the term where the issue was tried. If it is not so filed, either party may move at a Special Term for a new trial upon that ground. If the decision has not been 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. (Code of Civ. Pro., § loio.) The decision and all other papers relating to the trial must be filed in the office of the clerk of the county in which the action is triable, although the trial was had in some other county. (Code of Civ. Pro., § 990.) If the issue was tried by a referee, his 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, and in that case the action must proceed as if the reference had not been directed, and the referee is not entitled to any fees. (Code of Civ. Pro., § 1019.) The effect of a failure to file a decision or to file or deliver a report within the statutory time, and the proceedings inci- dental to such failure are substantially the same as upon the •trial of an issue of fact. Directions as to the judgment to be entered. — The decision of the court, or the report of a referee, upon the trial of a demur- rer, must direct the final or interlocutory judgment to be entered thereupon. (Code of Civ. Pro., § 102 1.) It will be seen that the ■decision of the court is not to merely direct that an interlocutory judgment be entered, but is to direct with definiteness the terms of the interlocutory judgment. {United States Life Ins. Co, v. Jordan, 46 Hun, 201.) The statute does not require that the (decision shall direct both interlocutory and final judgments. ■{Thompson v. Stanley, 29 Abb. N. C. 11.) Where it directs an 29,0 Trial Practice. Directions as to the judgment to be entered. interlocutory judgment, with leave to the party in fault t) plead' anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed. (Code of Civ. Pro., § 102 1.) The court may, in its dis- cretion, allow the party in fault to plead anew or amend upon such terms as are just. If the demurrer is allowed because two or more causes of action have been improperly united, the court may in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. (Id., § 497-) Where an issue of law and an issue of fact arise, with respect to different causes of action, set forth in the complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in main- taining the action, or a defense or counter-claim, with respect to the other causes of action, or in the recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires. (Id., § 1220.) It is within the discretion of the court whether, upon overruling a demurrer to the complaint, the defendant shall be allowed to answer over. (Simsonv. Satterlee, 64 N.Y. 657; Loweryv. Inman, 37 How. 286; 6 Abb. [N. S.J 394) If it appears that it was inter- posed in the honest belief that it might be available, but with no expectation of disposing of the cause on its merits, it cannot be said to have been interposed in good faith, and leave to plead over should not be granted. {Osgood v. Whittelsey, 10 Abb. 134; 20 How. 72.) So if the demurrer to the complaint is sustained, and it appears that the complaint cannot be so amended as to enable the plain- tiff to recover, the decision or report should direct judgment absolute for the defendant. {Snow v. Fourth Nat. Bank of New York, 7 Rob. 479; Henriques v. Yale University, 28 App. Div. 354. See also, Lowry v. Inman, 6 Abb. [N. S.] 394 ; 37 How. 286.) If a demurrer to one of several defenses is sustained, the- report or decision should direct that the plaintiff have judgment Proceedings After Decision or Report. 321 Terms cannot be imposed otherwise than by an interlocutory judgment. 'for the relief demanded in his complaint, unless the defendant succeeds on the issues remaining to be tried, and the defendant should be allowed to amend the defense demurred to on pay- ment of costs. (Murphy v. Allerton, 7 Hun, 650 ; Belknap v. Mcliityre, 2 Abb. 366; Sutherland v. Tyler, li How. 251.) So where a demurrer to an answer which does not go in bar of the whole cause of action is overruled, the report or decision should not direct a dismissal of the complaint, but merely that an interlocutory judgment be entered overruling the demurrer, and perhaps adjudging the answer to be a good defense as far as it extends. (Brevoort v. Brevoort, 8 Jones & Sp. 211.) Where a demurrer to a complaint for insufficiency is over- ruled, it is not necessary that the court or referee should deter- mine what relief the plaintiff is entitled to. It is enough to announce that from the allegations of the complaint the plain- tiff is entitled to some relief. {Brewster v. Hatch, 10 Abb, N. C. 400. See Garner v. Harmony Mills, 6 id. 212.) SECTION V. Proceedings after Decision or Report. After the decision or report is made it should be filed in the proper clerk's office and judgment entered according to its ■directions. If it directs an interlocutory judgment to be entered, it is the duty of the clerk to enter it at once. {Liegeois v. Mc- Cracken, 22 Hun, 69.) Terms cannot be imposed otherwise than by an interlocutory judgment, and the time within which the party must amend, etc., will not commence to run until such judgment is entered. (Id. Quereau v. Brozvn, 63 Hun, 175 ; Gray v. Rothschild, 13 Civ. Pro. R., 359.) By the entry of the interlocutory judgment the party in fault is put to his elec- tion to plead or amend as the case may be, or to submit to final judgment. {Whitijig v. Mayor, etc., of New York, 37 N. Y. 600; Fisher v. Gould, 9 Daly, 141 ; Tradesmen's Nat. Bank v. McFeely, 3 Hun, 699.) If he amends or pleads over the case proceeds upon the amended or substituted pleading. [Marie v. Garrison, 13 Abb. N. C. 275 ; Wheelock v. Lee, 74 N. Y. 495, 499.) If he fails to comply with the terms imposed or the directions given by the interlocutory judgment, and there are no other issues to 383 Trial Practice. Proceedings after decision or report. try, the aHverse party becomes entitled to final judgment. If the interlocutory judgment directed what the final judgment should be in case the party failed to comply with the terms imposed, there is no occasion for further application to the court for final judgment after such default. If the final judgment was not directed by the interlocutory judgment, then final judgment may be entered upon application to the court, or by the clerk in an action specified in section 420 of the Code. (Code of Civ. Pro.^ § 1222.) The application to the court in such a case must be made as upon a motion. (Id., § 1230; Liegeois v. McCracken^ 22 Hun, 69.) Upon such application the court has the same powers as upon an application for judgment by default. (Code of Civ. Pro., § 1223.) It is the duty of the court to determine the precise relief to which the successful party is entitled and direct the appropriate judgment. If either party is dissatisfied with the measure or kind of relief awarded, his remedy is by appeal from the judgment entered in accordance with the decision. {Smith v. Rathbun, 88 N. Y. 660.) No ex- ception to the decision of the court is necessary to enable the party to question its correctness on appeal {Cass v. Sherman, 61 Hun, 472), and no appeal from the decision, as such, is necessary to its review. (Wright v. Chapin, 74 Hun, 521.) If the defendant has demurred to some of the causes of action set forth in the complaint and answered the others (Id., § 492), or has demurred to the complaint upon the ground of misjoinder of causes of action (Id,, § 488), and the court in either case has divided the original action into two or more (Id., §§ 497, 1220), the order directing the severance will ordinarily make the proper provisions as to the costs or the prior proceedings, and will give any necessary directions as to the future proceedings in the sev- eral actions. If at the time of the decision of the demurrer there are other issues to be disposed of, the case will proceed as to those issues in the usual manner, and if those issues are tried by the court or referee, the report or decision upon the whole issue will contain appropriate provisions whereby the party previously succeeding on the trial of the demurrer will have the proper relief secured to him by the final judgment. (See Code of Civ. Pro., § 1221;. Bucking V. Hauselt, 9 Hun, 633, 635; Oesterreiches v. Jones. \\ Costs. 233 Discretion as to award of costs. Hun, 246; Robinson v. Hall, 35 Hun, 214; Biershenk v. Stokes, 46 St. Rep. 179; Crasio v. White, 52 Hun, 473; /72/l?j v. Globe Knitting Co. 51 Hun, 487.) If the remaining issues are tried by a jury the court will make the proper directions upon the appli- cation for judgment on the whole issue. (Code of Civ. Pro. § 1221, subd. 2.) The mode of entering a final or interlocutory judgment will be considered hereafter. SECTION VI. Costs, " Where an issue of law and an issue of fact are joined between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment is rendered upon the issue of law, the interlocutory judgment may, in the discre- tion of the court, deny costs to either party or award costs to the prevailing party either absolutely or to abide the event of the trial of the issue of fact." (Code of Civ. Pro., § 3232.) While costs to the prevailing party upon the decision of a demurrer where an issue of fact remains undisposed of may be granted or refused in the discretion of the court under the sec- tion above cited, if costs are given, the prevailing party is en- titled to the statutory costs given by section 3251 of the Code for the trial of an issue of law. {Vogt Mfg. etc., Co., v. Oettin- ger, 88 Hun, 52; Van Gelder v. Van Gelder, 13 Hun, iiS.) It is proper to allow costs on the decision of a demurrer, although an issue of fact is left to be determined upon a trial. {Adams v. Ward, 60 How. 288.) An interlocutory judgment sustaining a demurrer to part of a pleading may include costs to be taxed and provide for execution for their collection. {Brassington v. Rohrs, 3 Misc. 258.) Section 779 of the Code applies in such cases. (Code of Civ. Pro. § 3233.) Where no issue of fact remains undisposed of, and a demurrer to a complaint in a common law action is sustained the defend- ant's right to costs is absolute. (Tallntan v. Bernhard, 75 Hun, 30.) A referee exercises the same power as the court to award costs ' upon the decision of an issue of law tried before him, and exer- 334 Trial Practice. Proceedings after award of costs. cises it in the same manner as a similar power is exercised by the court. (Id., § ioi8.) Where costs are imposed as a condition of amending or pleading over, the unsuccessful party has his elec- tion to pay the costs and avail himself of the leave granted, or to remain passive. If he pays the costs and amends or pleads over, the party to whom they are paid cannot afterward, on be- coming entitled to the general costs of the action, tax any items included in the sum so paid. {Trustees of Penn Yan v. Tuell, Q How. 400.) And the party paying such costs, and afterward becoming entitled to the general costs of the action, cannot tax such items as were included in the costs specifically awarded to his adversary. (See Rust v. Hauselt, 8 Abb. N. C. 148 ; 14 Jones & Sp. 38 ; Sutphen v. Lash, 10 Hun, 120; Provost v. Far- rell, 13 id. 303 r Seneca Nation of Indians v. Hawley, 32 id. 288.) CHAPTER V. TRIAL BY JURY. SECTION I. Applications to Postpone the Trial. It may be assumed that a party who has noticed a cause for trial, and has caused it to be placed upon the calendar of the Trial Term, intended, at the time of the service of the notice at least, to be present at the opening of the court with his witnesses fully prepared for trial. But a party who has fully prepared for the trial of his cause may unexpectedly find himself wholly unable to proceed by reason of the sickness or absence of a material and necessary witness, or the happening of some unfore- seen event calculated to greatly prejudice his case if he should be driven to immediate trial. In such cases an application to the court for the postponement of the trial becomes a necessity if the adverse party is in a position to move the cause and declines to stipulate for a postponement. This application may be for a postponement of the trial until a later day in the term, or until the next term, as the circumstances of the case require. Grounds for a postponement. — The absence of a material witness, whose attendance the party has unsuccessfully used due diligence to obtain, is a good ground for a postponement of the trial. {People v. Vermilyea, 7 Cow. 369: Ogden v. Payne, 5 id. 15; Gregg V. Howe, 5 Jones & Sp. 420, Pulver v. Hiserodt, 3 How. 49; Smith v. New York Ins. Co., i Hall, 223.) As an abstract proposition, the absence of a foreign witness is an insuffi- cient ground for the postponement of a trial, yet there may be con- trolling circumstances which render it sufficient in connection with other facts. (See Cahill v. Hilton, 31 Hun, 114.) The refusal to postpone the trial on account of the absence of a foreign expert witness is not an abuse of discretion. {Ten Broeck V. Travelers Ins. Co., 6 St. Rep. 100.) The fact that a material witness for the party unexpectedly 15 225 236 Trial Practice. Application for a postponement. went abroad so that he could not be subpoenaed is a good ground for a postponement. {Nixen v. Hallett, 2 Johns. Cas. 218; Pul- ver V. Hiserodt, 3 How. 49.) But if the absent witness is a transient person who might have been examined by the party before the trial {M'Kay v. Marine Ins. Co., 2 Caines, 384), or if the party has neglected to subpoena the witness, relying upon his promise to attend, his absence is no ground for a postpone- ment. {Freeland v. Howell, Anth. N. P. 272. But see Cahill v. Hilton, 31 Hun, 114.) Where there has been no subpoena or other effort to secure the attendance of a witness, his absence is no ground for a postponement. (Keller v. Feldman, 2 Misc. 179.) In all cases where application is made to postpone ufwn the ground of the absence of a witness, the questions are : 1. Is the witness material ? 2. Has the party asking the postponement been guilty of any laches? 3. Can the attendance of the witness be procured on the day or at the term to which postponement is desired ? If these questions can be satisfactorily answered by the party making the application the postponement will ordinarily be granted. {^People v. Verniilyea, 7 Cow. 369; The King v. UEon, I W. Bla. 510; 5. C, 3 Burr. 15 13.) Absence of counsel, when it arises from sickness or other inev- itable cause, is a good ground for a postponement {Jackson v. Wakeman, 2 Cow. 578; Jackson v, Braivn, i Caines, 336); though absence of counsel on professional business is not. (Jackson v. Wakeman, 2 Cow. 1578. See Ward v. Ruckman, 23 How. 330.) The courts are reluctant to grant a postponement of a cause upon the ground of absence of counsel. (Post v. Wright, i Caines, ni; M'Kay v. Marine Ins. Co., 2 id. 384; Rogers v. Gar- rison, id. 379.) The serious illness of a party, affectfng him mentally as well as physically, is a strong reason for a postponement of the trial. (Garfield Nat. Bank v. Colwell, 28 St. Rep. 723.) Application for a postponement. — A motion to postpone is ordinarily made after the action in called for trial, and the dis- posal of the motion is a proceeding in the trial. (Gregg v. Howe, 5 Jones & Sp. 420.) But if the facts upon which the postpone- ment is sought were known to the party at the commencement of the term, the exercise of ordinary good faith requires that the Application to Postpone thk Trial. 227 The aflSdavit upon which the application is based should be made by the party. application should be^made as soon as practicable. If a party has for several days announced his readiness for trial, though knowing of the absence of a witness, a postponement of the trial on the ground of such absence may properly be refused. {Walbridge v. /. Dewing Pub. Co., 24 N. Y. Supp. 602.) It has been held that the application for a postponement must be based upon an aflSdavit, and that it will not be entertained on a statement ore teuus. {Brooklyn Oil Works v. Brown, 38 How. 451; 7 Abb. [N.S.J 382.) It is, undoubtedly, the better prac- tice to move on affidavits as the court may refuse to entertain the motion if made otherwise, and, in case the moving party should desire to review the order made upon the decision of the motion, the affidavits used will present the facts for review which would not otherwise appear in the record. But such motions are often heard on oral statements, and if counsel do not object at the time, no error on that ground can be claimed. {Garrett V. Wood, 24 App. Div. 620 ) The afiBdavit upon which the application is based should properly* be made by the party and not by his attorney. {Brook- lyn Oil Works v. Brown, 38 How. 451.) If made by a defendant it should contain an affidavit of merits. The affidavit must show the materiality of the absent witness, due diligence in the en- deavor to procure his attendance at the trial ; and an assurance of his probable attendance at the time proposed for the adjourn- ment. (Id.; Brown v. Moran, 65 How. 349; Noye Mfg. Co. v. Raymond, 8 Misc. 3 S3.) The party may swear positively to the materiality of the absent witness or that he is advised and be- lieves the witness to be material. {Brooklyn Oil Works v. Brown, 38 How, 451. See ante p. 94.) Due diligence can be shown by setting forth the efforts made to subpoena the witness, or facts showing that an attempt to sub- poena the witness would be unavailing. These are the requi- sites of a common affidavit, and are sufficient to authorize a post- ponement upon an application made at the first trial term to which the cause is noticed for trial, unless defeated by counter- affidavits. {Hooker v. Rogers, 6 Cow. 577 ; People v. Vennilyea, 7 id. 369; Brooklyn Oil Works v. Brown, 38 How. 451 ; 5. C, 7 App. [N. S.j 382 ; Ogden \. Payne, 5 Cow. 15 ; Pulver v . Hiserodt , 3 How. 49.) 228 Trial Practice. Opposing the motion. But where there has already already been a postponement of the trial at the instance of the party, or any other circumstances raising a supposition that the application is merely for delay, a special affidavit should be presented as the basis of the applica- tion. {Brooklyn Oil Works v. Brown, 38 How. 451.) This special affidavit should show the materiality of the witness by a state- ment of facts. (Id.; King v. Jones, 8 East, 31 ; Lord v. Cooke, i W. Bla. 433 ; People v. Vermilyea, J Cow. 369.) The mode of alleging the materiality of a witness has been heretofore noticed. (See ojite, p. 95.) Although it may not be absolutely necessary it is certainly advisable that the party should swear that the application for the postponement is made in good faith, and not for the purpose of delay. (For form of the af&davit, see Appen- dix.) Opposing the motion. — A motion for a postponement of the trial may be opposed upon the insufficiency of the moving papers ; upon affidavits controverting or explaining away the allegations of the mov- ing affidavit, or attacking the good faith of the application ; or upon an ofEer to stipulate to admit the facts proposed to be proved by the absent witness. A full admission of such facts will defeat the ap- plication. {BrUl V. Lord, 14 Johns. 341 ; Brooklyn Oil Works v. Brovm, 38 How. 451 ; S. G., 7 Abb. [N. S.] 382 ; People v. Vermil- yeck, 7 Cow. 369, 400.) K the ap^ication for a postponement is opposed upon the insuf- fidency of the moving papers, no counter-affidavits are necessary. But if the opposing party controverts any material fact stated in the moving papers, or has any new fact to urge why the continuance should not be granted, he should invariably prepare affidavits, and read them in opposition to the motion, or sliould have the oral state- ments entered upon the record so that they may be available in case of an appeaL Time will always be allowed for this purpose. The practice in resisting motions to postpone the trial of causes has usu- ally been loose and informal. Oral statements of facts are made and accepted by the court and opposing counsel, and they are often deemed sufficient to defeat the motion. But as these facts never get into a case, they are wholly worthless upon ap- peal, and the decision of the trial court is often reversed for want of some record of what transpired upon the trial. (See Gregg v. Application to Postpone the Trial. The decision. ILowe, 5 Jones & Sp. 420.} Tiio moving party may require thai the statements made by counsel in opposition to liis motion shall be put in the form of an affidavit ; and if he insists upon this right, no one is bound to accept the statements unless embodied in an af- fidavit. But if oral and unverified statements of counsel are not ob- jected to on account of their form, and are not contradicted, they are not only competent as evidence to oppose the application, but are entitled to the same credence as sworn statements. {Tribune Association Y , Smith, 8 Jones & Sp. 251.) The decision. — It was held under the old practice that in a case where a common affidavit applied, the court had no dis- cretion, and that a postponement was a matter of right resting upon what had become a principle of the common law ; but where there had been laches, or there was reason to suspect that the object was delay, the judge at the Circuit might then take into consideration all the circumstances and grant or deny the application at his pleasure ; and that the granting of the applica- tion ceased to be a matter of right and rested in discretion. {People V. Vermilyea, "J Cow. 369, 390.) The granting or denying of the motion is now regarded as a matter of discretion. (See Paine v. Aldrich, 133 N. Y. 544; Whitney v. Whitney, j6 Hun, S8S-) The statute provides that where an application is made to a court or a referee to adjourn a trial, the payment to the adverse party of a sum not exceeding $10, or in the City Court of the city of New York, a sum not exceeding $5, besides the fees of his witnesses, and other taxable disbursements already made or incurred, which are rendered ineffectual by the adjournment, may be required as a condition of granting the adjournment. (Code of Civ. Pro., § 3255.) The postponement of the trial to a later day in the same term or the postponement of the trial from one term to another is an adjournment within the meaning of this statute. {Lcnuson v. Hill, 66 Hun, 288.) Such condition is ordinarily imposed upon granting an application for a postponement at the trial term, un- less special circumstances are shown rendering the condition im- proper. The statute cited fixes the limit of costs which may be imposed. {Kennedy v. Wood, 54 Hun, 14; Noxonv. Bentley,(i How. 418.) 230 Trial Practice. Proceedings under the order. But the court may impose other conditions upon granting the postponement, as for example, that the moving party stipulate to allow an inquest on the next adjourned day if not then ready to proceed ( Brooklyn Oil Works v. Brown, 38 How. 451), or that the action shall not abate in case of the death of the defendant before that time {Ames v. Webbers, 10 Wend. 576; 11 id. 186; Cox V. New York Central & H. R. R. R. Co., 63 N. Y. 414), or that the plaintifl in replevin renew his sureties on the undertak- ing given to the sheriff on the institution of the suit. {Decker v. Jtidson, 16 N. Y. 439.) The cases in which a stipulation should be required as a condition of granting a postponement of the trial are exceptional, and as a general rule the court merely re- quires the party to pay the costs of the Circuit. (See Hall v. Dwinell, 10 Wend. 628) The court having announced his decision upon the application, an order is thereupon entered in the minutes by the clerk. If the application is granted upon condition that the moving party pay costs to his adversary, the order should be in a conditional form leaving the paity to his election whether he will take the benefit of the order and comply with the condition or not. (See Bagley v. Ostrom, 5 Hill, 516; Booth v. Whitby, id. 446 ) Proceedings under the order. — If the moving party decides to take the benefit of the order and comply with the condition he should either agree with his adversary on the amount of witness fees and taxable disbursements or have such fees and disburse- ments taxed in the usual way. The court has no power to impose a gross sum as a condition. {Kennedy v. Wood, 54 Hun, 14.) On the taxation of such fees and disbursements the party opposing the postponement should show by affidavit the name and resi- dence of each witness, the time when subpoenaed, the distance traveled, the payment of or liability for the fees claimed, and that the sums paid were rendered ineffectual by the postponement. {Laivson v. Hill, 66 Hun, 288.) After the taxation the moving party should pay the costs without waiting for a formal demand. {Jackson v. Pell, 19 Johns. 269.) These costs are payable imme- diately unless the order otherwise provides. (Id.; Buckley v. Keteltas, 2 Sandf. 735. See Sabin v. Johnson, 7 Cow. 421; Pugsley V. VanAllen, 8 Johns. 352.) If the party obtaining the order neg- Application to Postpone the Trial. 231 Proceedings where the motion is denied. lects to comply with the condition imposed, the adverse party may proceed with the trial. {Bagley v. Ostrom, 5 Hill, 516; Gamble V .Taylor , 43 How. 375 ; Bulkleyv. Keteltas, 2 Sandf. 735.) Proceedings where the motion is denied. — A defendant who has failed on an application for a postponement of the trial may either withdraw from the trial and allow an inquest, and after- ward move at Special Term to set the inquest aside, or he may except to the decision, proceed with the trial, and afterward upon a case containing the affidavits used on the motion and his excep- tion to the decision, move at Special Term for a new trial, or he may present the question for review by an appeal from the judg- ment. (Gregg V. Howe, 5 Jones & Sp. 420 ; Tribune Association V. Smith, 8 id. 251 ; Gallaudet v. Steimnets, 6 Abb. N. C. 224; .S. C, 13 Jones & Sp. 239; Howard v. Freeman, 3 Abb. [N. S.] 292.) But no appeal lies directly to the appellate division from an order made at the trial term refusing to postpone the trial of a cause. {Martin v. Hicks, 6 Hun, 74.J And where there was a conflict in the proofs before the court below the decision of the trial jurige as to the facts will not be disturbed on review. [Tri- bune Association v. Smith, 8 Jones &Sp. 251.) The fact that a motion to postpone the trial was made and denied does not pre- vent a defendant from moving to set aside the assessment of dam- ages taken upon an inquest and the judgment entered thereon. Such motion is not regarded as an appeal from the order denying the application to postpone the trial, and the granting of the motion does not call in question the propriety of the proceedings at the trial term. Motions to open defaults are not uncommon or unusual, even where an application to postpone has been denied by the trial judge. They are usually based on papers not presented to the trial judge, and upon further facts; and as they are addressed to the Special Term, such conditions may be imposed upon granting the motion as justice demands in view of all the facts. {Cahill v. Hilton, 3 1 Hun, 1 14.) If it appears upon the motion that the moving party was able to be present at the trial and is attempting to impose upon the court by false state- ments as to his health at the time the cause was called for trial, the motion to open the default will be denied. {Ramsdell v. Nat. Rivet and Novelty Co., 20 App. Div. 388.) 232 Trial Practice. Inquests and defaults. SECTION II. Inquests and Defaults. An inquest is merely the trial of the plaintHTs side of the case out of its regular order on the calendar. It can be taken by the plaintiff only, as no rule of practice permits the taking of an inquest by a defendant. (See Regan v. Priest, 3 Denio, 163.) And it cannot be taken by the plaintiff unless he has served due notice of trial. {Potter v. Davison, 8 Abb. 43.) The general rules of practice provide that inquests may be taken in actions out of their order on the calendar, in cases in I which they are allowed at the opening of the court, on any day after the first day of the court, provided a sufficient affida- vit of merits shall not have been filed and served, and provided the answer shall not have been verified. (Rule 28.) An inquest cannot be taken for want of an affidavit of merits where the answer is verified, (Code of Civ. Pro., § 980), i nor can it be taken for want of an affidavit of merits in an action inequity. {Devlin v. Shannon, 8 Hun, 531.) Inquests — wlien and how taken. — An incjuest cannot regu- laarly be takes out of the order of the causes on the calendar on the first As^ of the term for want of an affidavit of merits {Smith v. ! Brwan, 1 Duer, 665), nor can it be regularly taken on any subse- I quent day 4.ii\in, 236; Ottendorff v. Willis, 80 Hun, 262.) A party has no right to introduce his case on the cross-exam- ination of the witness of his adversary. But it is within the dis- cretion of the trial judge to admit or exclude it at that time. {Neil V. Thorn, 88 N. Y. 270 ; Hartness v. Boyd, 5 Wend. 563 ; Kerker v. Carter, i Hill, loi ; Ernst v. Estey Wire Works Co., 21 Misc. 68 ; Rheinfeldt v. Dahbnan, 19 Misc. 162 ; Lange v. Manhattan Ry. Co , 46 St. Rep, 868 ; American Encaustic Tiling Co. V. Reich, 35 St. Rep. 579; Briggs v. Gardner, 69 Hun, 543.) The order in which a party shall prove the several facts which, taken together, constitute his cause of action or defense is im- portant only so far as one mode of grouping the facts may have advantage over another in the matter of clearness, ease of com- prehension or general effect. But one fact can be proven at a time, and evidence must necessarily be introduced by successive stages. If the facts tend to make out the case of the party in- troducing the evidence, the order in which proof is given is not in a legal sense material. The order of proof is always in the discretion of the court. (See Bruce v. Kelly, 7 Jones & Sp. 27; 254 Trial Practice. General outline of the practice in presenting evidence to the jury. Plainer v. Plainer, 78 N. Y. 90 ; Bedell v. Powell, 13 Barb. 183 ; Miller M.Barber, 66 N. Y. 558 ; //■«> v. Edison Electric Light Co., 2"] App. Div. 248.) Where there are several independent issues, counsel sometimes confine the examination of the witnesses to one issue only until the evidence upon one side upon that issue is all in, and then, taking up the other branches of the case, recall such of the witnesses, previously examined, as can give testimony upon the remaining issues. But the more common practice is to examine each witness called upon all the branches of the case of which he has knowledge, and to fully complete his examination before he is dismissed from the stand, except so far as it may be necessary to recall him to answer the case made by the opposite party, or to supply some fact inadvertently omitted. If the first-mentioned practice is adopted, it should be understood by the court, counsel and witness that the examination has been limited to a single branch of the case, and that the right to re- call the witness is reserved. The witnesses who have been sub- poenaed and called to testify are presumed to be present in court until the conclusion of the trial. {Neil v. Thorn, 88 N. Y. 270.) SECTION X. General Outline of the Practice in Presenting Evi- dence TO THE Jury. When a witness is called to give testimony upon a trial, he is sworn by the clerk, or if that officer is temporarily absent, by the court (See Code of Civ. Pro., § 7), in some of the modes pre- scribed by statute (See Id., §§ 845-8S1), and is then examined by the attorney or counsel for the party producing him. This is called the direct examination, or examination in chief. He is then usually examined by the counsel for the adverse party. This is called the cross examination. The witness may then be again examined by the attorney or counsel for the party produc- ing him, and this examination is called the re-examination or re- direct examination. This ordinarily closes the examination of the witness, and he is then dismissed from the stand, but is not necessarily released from further attendance on the trial. It is his duty to be in court until the trial is concluded, and before Outline of Practice in Presenting Evidence to Jury. 255 General outline. that time he cannot lawfully leave without the consent of the opposite party, or permission of the court. {Neil v. Thorn, 88 N. Y. 270.) Only one counsel on each side is permitted to examine or cross-examine a witness, and during such examination the ex- amining counsel is required to stand, and is not allowed to re- peat the answer or answers of the witness. The testimony, if taken down in writing, must be written by some person other ihan the examining counsel; but the judge who holds the court may otherwise order, or dispense with these requirements. (Gen. Rule 29.) When the party holding the af&rmative has introduced all the evidence he desires, he makes that fact known by announcing that he rests. If the party having the affirmative is the plaintiff, the defendant may then move to dismiss the complaint either upon the ground that it does not state facts sufficient to consti- tute a cause of action, or upon the ground that the evidence fails to establish a cause of action. As a motion for a nonsuit or a dismissal of the complaint may be made at the close of the testi- mony of both parties, that branch of the practice need not be considered here. If the case is not disposed of on motion at the close of the evidence of the party holding the affirmative, the opposite party then opens his case to the jury by briefly stating the facts whicii he expects to prove in its support. (See ante, p. 250.) He then calls his witnesses, introduces such testimony or documentary evidence as he may have, and rests. Evidence in rebuttal may then be given and the evidence is then closed, unless the court, in its discretion, permits either party to introduce further evi- dence. The court may, in its discretion, limit the number of witnesses to be examined upon a collateral issue {Noltonv. Moses, 3 Barb. 31 ; Spear v. Myers, 6 id. 445), or as to a particular point {AntAony V. Smzik, 4 Bosw. 1503; Stzer v. Burt, 4 Denio. 426; Ward V. Washington Ins. Co., 6 Bosw. 229), but should not exercise that discretion except in a case clearly calling for inter- position ; and if by its exercise a party is prevented from produc- ing a preponderance of testimony, the error can be corrected on appeal. (Id. See Eakin v. Brown, i E. D. Smith, 36.) The court in its discretion may limit the number of expert witnesses on a 556 Trial Practice. The direct examination. question of value, {Sixth Ave. R. R. Cd. v. Metropolitan El. Ry. Co., 138 N. Y. 548) or as to any question on which expert evi- dence is properly adduced, (Carpenter v. Knapp, 50 St. Rep. 261.) or the number of witnesses to be called for the purpose of im- peachment {Reynolds v. Port Jervis Book, etc., Co., 32 Hun, 64), but not with respect to the chief issues litigated. (Id.) Objec- tions to the competency of witnesses, or to the admissibility of testimony or evidence, may be taken upon the trial as the wit- nesses are produced, or as the testimony or evidence is offered ; and exceptions to the ruling of the court thereon may be taken at the time the rulings are made by the party deeming himself aggrieved, provided the ruling is a proper subject of exception. All these matters thus briefly outlined will now be considered at length. SECTION XI. The Direct Examination. It is to be presumed that an attorney who has charge of the trial of a cause has fully considered his client's case, the facts which it will be necessary to establish upon the trial, nnd the evidence available for that purpose. It is also to be presumed that he has ascertained in advance of the trial what facts hs may confidently hope to establish by each of the witnesses subpoenaed by his client, that he is conversant with the relation of the wit- nesses to the several parties and to the subject-matter of the action, and has ascertained, at least in a general way, their more prominent mental characteristics. This knowledge should enable <:ounsel by a few apt preliminary questions to direct the attention of the witness to the particular matters concerning which his testimony is sought, and from that point, by an occasioTial question, to prompt the witness to state the facts in a narrative form in his own language, without resort to questions suggesting to the witness the precise answer expected from Him. As a general rule, leading questions are not permitted upon a direct examination. (See People v. Oyer & Terminer, etc., of N. Y., 83 N. Y. 436, 459, 460.) But the rule is relaxed where an omission in the witness' testimony is evidently caused by a want of recollection which a suggestion may assist {Cheeney v. The .Direct Examination. 257 Cross-examining. Arnold, i8 Barb. 434. See O'Hagan v. Dillon, 76 N. Y. 170), or where the witness is hostile to the parfy calling him {Williams V. Eldridge, i Hill, 249, 255; Great Western Turnpike Co. v. Loomis, 32 N. Y. 127, 139; Bradshaw v. Combs, 102 111. 420; Becker v. Koch, 104 N. Y. 394), or very ignorant. (Dorati v. Mul- lan, 78 111. 342 ; State v. Benner, 64 Me. 267.) And questions, though leading in form, are always competent, when merely in- tended to direct the attention of the witness to the subject-mat- ter of his testimony. {Lowe v. Lowe, 40 Iowa, 220.) While as a general rule a party cannot cross-examine his owi witness and is bound by the answer made, still if the answer is ambiguous, the counsel may inquire as to any circumstance or fact tending to enable the witness to recollect more clearly or certainly the fact sought to be proved. {O'Hagan v. Dillon, y6 N. Y. 170.) And if the witness is against the party calling him •in feeling and interest the party is not bound to accept as un- qualifiedly true the first answer given, but may pursue the in- quiry further, and conduct the examination as he would a cross- examination. {Metropolitan Nat. Bank v. Hale, 28 Hun, 341.) It is within the discretion of the court to permit leading ques- tions to be asked upon a dir«ct examination, and the exercise of that discretion will not be reviewed except in a clear case of abuse. {Budlong w. Van Nostrand, 24 Barb. ^5 ; Pohalskiv. Ert- heiler, 18 Misc. 33; Cheeney v. Arnold, 18 id. 434 ; Walker v. Dunspaugh, 20 N. Y. 170; Downs v. New York Cent. R. R. Co., 47 id. 83, S8 ; Black v. Camden & Amboy R.R. Co., 45 Barb. 40 ; Shufflin V. People, 4 Hun, 16.) Counsel conducting a direct examination should carefully avoia traveling outside of the affirmative case, by attempting to antici- pate the defense, as the opposite course may enable the adverse party on cross-examination to draw out testimony material to the defense without overstepping the bounds of legitimate cross- examination, or forfeiting the latitude allowed thereon. SECTION XII. The Cross-Examination. The object of a cross-examination is to break the force or des- troy the effect of the testimony given by the witness upon his 258 Trial Practick. The cross-examination. direct examination, or to lay the foundation for testimony of other witnesses which shall have that effect. When a witness has been examined in chief, the other party has the right to cross- examine him for the purpose of ascertaining and exhibiting the situation of the witness with respect to the parties and to the subject of the litigation, his interest, his motives, his inclination, his prejudices, his means of obtaining a correct and certain knowl- edge of the facts to which he has borne testimony, the manner in which he has used these means, his powers of discernment, mem- ory and description. {Butler v. Flanders, 12 Jones & Sp. S31.) The examining counsel may show, if he can, by the testimony of the witness under cross-examination that the witness was honestly mistaken in respect to some or all of the facts testified to by him on his direct examination, or that he misapprehended the ques- tions put to him, or made use of language which imperfectly expressed his meaning, or that his testimony should be qualified by other explanatory facts not drawn out upon the direct exam- ination, or any other matter consistent with the good faith and honesty of the witness, by tending to impair the force and effect of his previous testimony ; or the counsel may impair the credi- bility of the witness by drawing out the fact that he is interested in the result of the action {Meltzer v. Doll, 91 N. Y. 365 ; Brook- lyn Crosstown R. R. Co. v. Strong, 75 id. S91 ; Gildersleeve v. Lan- don, 73 id. 609 ; Vaughn v. Westover, 2 Hun, 43 ; Suit v. Bonnell, 33 Wis. 180; Elwoodv. Western Union Tel. Co., 45 N. Y. 549), or that he entertains malice or hostile feelings toward the party against whom he is called to testify (Schultz v. Third Avenue R. R. Co., 89 N. Y. 242 ; Miles v. Sackett, 30 Hun, 68 ; Starks v. People, 5 Denio, 106 ; Gale v. New York Cent. & Hud Riv. R. R. Co., y6 N. Y. 594 ; Higham v. Gault, 15 Hun, 383 ; Richardson v. Nortlirup, 66 Barb. 85; Hotchkiss v.Germania Fire Ins. Co., 5 Hun, 90; Newton V. Harris, 6 N. Y. 345), or is a relative of the party in whose behalf he is called ; or, if he is called in behalf of a cor- poration, that he is a relative of an officer of such corporation {Hoffmann. New York Cent. & Hud. Riv. R. R. Co., 87 N. Y. 25 ; Kavanagh v. Wilson, 70 id. 177); or that such a relation exists between the party cross-examining and the witness cross-examined as might lead the witness to testify against him under a bias {Miles v. Sackett, 30 Hun, 68), or any other fact showing an The Cross-Examination. 359' Scope of the cross-examination, intent or motive on the part of the witness in testifying as he did on his direct examination. (Meltser v. Doll, 91 N.Y. 365 ; Lefler V. Field, i;o Barb. 407.) So for the purpose of affecting the weight of the testimony of a witness he may be asked upon his cross- examination, if he has not been convicted of a crime or misde- meanor, and the witness may be required to answer any question relevant to that inquiry. (Code of Civ. Pro., § 832.) So other questions, wholly foreign to the issue, may be put to a witness upon his cross-examination for the purpose of discrediting him by showing his real character. (See People v. Casey, 72 N. Y. 393 ; Real v. People, 42 id. 270 ; LaBeau v. People, 34 id. 223 ; Great Western Turnpike Co v. Loomis, 32 id. 127, 139.) The extent to which such examination sha:ll be carried is largely in the discretion of the trial court, and its exercise is not subject to review except in a clear case of abuse. (Id.; West v. Lynch, 7 Daly 245, 247; Ryan v. People, 19 Hun, 186; S. C, 79 N. Y. 593; Allen V. Bodine, 6 Barb. 383; King v. New York Cent. & Hud. Riv. R. R. Co., 72 N. Y. 607; Wroe v. State, 20 Ohio St. 460.) And the trial court may, in the exercise of a sound discretion, exclude disparaging questions not relevant to the issue, though put for the avowed purpose of impairing the credit of the witness (Great Western Turnpike Co. v. Loomis, 32 N. Y. 327 ; LaBeau v. People, 34 id. 223 ; Canaday v. Krum, 83 id. 6^ ; Penny v. Roch- ester R. Co. 7 App. Div. 59s.) It must also be remembered that while a witness may be com- pelled to testify as to collateral acts of his own tending to prove his moral degradation, if the court in its discretion permits such evidence, the witness cannot be compelled to testify to the con- clusions of others to prove such moral degradation or to impeach him as a witness, except in case of conviction for crime or such confinement in prisons or jails as would indicate a conviction. [People V. Dorthy, 20 App. ^oS; Lindsley v. Miller, 3 App. Div. 127.) It is well settled in this state that it is not competent to ask a witness on his cross-examination for the purpose of affecting his credibility, if he has been charged with crimes or misdemeanors or if he has been turned out of a social organization. (Id., Smith < V. Mul/ord, 42 Hun, 347; Kober\. Miller, 38 Hun, 184; Hay-' wardv. Sayer, 45 Hun, 595 ; VanBokkelen v. Berdell, 130 N. Y. 141.) 260 Trial Practice. Legitimate cross-examination. Questions may be put to a witness upon cross-examination for the purpose of laying the foundation for his impeachment by other evidence. The mode of impeaching witnesses will be consid- ered hereafter. The legitimate cross-examination of a witness, as to the issues involved in the action, is limited to those matters as to which the witness was interrogated upon his direct examination. In strict practice a party cannot introduce his case to the jury, by cross-examining the witness of his adversary. A party has no legal right to cross-examine a witness except as to facts and cir- ; cumstances connected with the matters stated upon the direct ex- I amination. {Neil v. Thorn, %% N.Y. 270; Hartnessw.Boyd, 5Wend.( 563; Kerkerv. Carter, i Hill, loi; Lloyd v. TJtompson, 5 111. App. 90; Da Lee V. Blackburn, 11 Kans. 190; Philadelphia & Trenton R. R. Co. V. Stimpson, 14 Peters, 448 ; Bell v. Prewitt, 62 III. 362. Rheinfeldt v. Dahlman, 19 Misc, 162. See Harrison v. Rowan, 5 Wash. C. C. 580; Ellmacher v. Buckley, 16 Serg. & R. 77; Castor V. Bavington, 2 Watts & Serg. 505 ; Floyd v. Bovard, 6 id. 75 ; Buckley v. Buckley, 12 Nev. 423 ; Cramer v. Cramer, 2 McAr- thur, 197.) If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him, as such, in the subsequent progress of the cause. (Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Peters, 448.) But this rule should not be extended beyond its true meaning. The cross-examination of a witness cannot be confined strictly to the precise subjects called to his attention upon his direct examination, but should be allowed to extend to any matter, not foreign to the subject-matter of such examination, tending to limit, explain or modify it. {Haynes v. Ledyard, 33 Mich. 319. See Mayer v. People, 80 N. Y. 364, 378; Baird v, Daly, 68 id. 547.) It is the tendency of the direct examination! which determines the subject of it as a test for the propriety of a cross-examination. {Campau v. Dewey, 9 Mich. 381.) If the; cross-examining counsel, in violation of the rule, examines the', witness as to matters not drawn out upon the examination in chief, the witness, as to such new matter, becomes his own, the testimony becomes the direct and affirmative evidence of the examining party, and in substance and effect the cross-examin- lEtion ceases, and becomes subject to all the restraints of a direct; *rHK Cross-Examination. 261 LJmlts of cross-examlDatloQ. examination. {People v. Oyer & Terminer of N. Y., 83 N. Y, 436; affirming 5. C, 19 Hun, 91; People v. Moore, 15 Wend. 419; Jackson V. Son, 2 Caines, 178, See Maltice v. Allen, 33 Barb. 543; Spear v. Myers, 6 id; 445, 450; Bassham v. State, 38 Texas, 623,) Whether a defendant shall be allowed, upon the cross- examination of a witness for the plaintiff, to go beyond the scope of a legitimate cross-examination and interrogate him as to matters in support of the defense not brought out upon the examination in chief, rests wholly in the discretion of the trial judge, and his ruling upon the question is not open to review. {Neil V. Thorn, 88 N. Y. 270.) So far as the cross-examination of a witness relates either to facts in issue or relevant facts, it may be pursued by counsel as a matter of right; but where its object is to ascertain the accuracy or credibility of a witness, its method and duration are subject to the discretion of the trial judge. {Langley v. Wadsworth, 99 N. Y. 61; Knight v. Cunnington, 6 Hun, loo; Hardy v. Norton, 66 i3arb. 527.) The court may, of its own motion, interfere to put an end to an unreasonably protracted cross-examination upon collateral matters which have no bearing upon the credit of the witness. {Peck v. Richmond, 2 E. D. Smith, 380; Plato v. Kelly, 16 Abb. 188.) Within the limits before mentioned, great latitude is allowed counsel in conducting a cross-examination. If they ask ques- tions not clearly incompetent, they will as a rule be sustained. (See Garfield v. Kirk, 65 Barb. 464; Dorrity v. Russell, 7 Bosw. 539; Rocke v. Meiner, 2 Jones & Sp. 158.) Counsel must exercise the right of cross-examination before the witness leaves the stand, unless the court, for some good reason, allows the privilege of deferring such examination to a subsequent stage of the trial. '{Sheffield w. Rochester & Syracuse R. R. Co., 21 Barb. 339.) Having commenced the cross-examin- ation it is his duty to complete it unless he is prevented by the adverse party, by the disability of the witness, or by the adjourn- ment of the court ; and if he defers it to another day for his own convenience, the opposite party is not obliged to detain the wit- ness although he is notified of an intention to resume the exam- ination at a future time. {Burdejt v. Pratt, 2 N. Y. Sup. Ct. [T. & C.J5S4.) But it would be otherwise if the completion of the ^63 Trial Practice. The re-direct examination. cross-examination was prevented by the sickness of the witness. (Clements v. Benjamin, 12 Johns. 299. See People v. Cole, 43 N. Y. 508; Forrest v. Kissam, 7 Hill, 463; Curtice v. West, 50 Hun, 47.) Where a witness has been examined and cross-examined, and has left the stand, it is a matter within the discretion of the trial judge whether the witness shall be again recalled by the cross- examining party for the purpose of interrogating him as a pre- liminary to impeachment. The rule which requires counsel upon an examination in chief to exhaust a witness is equally applicable to a cross-examination. {Romartze v. East River Nat. Bank, 2 Sweeney, 82. See Cummings v. Taylor, 24 Minn. 429; Knight V. Cunnington, 6 Hun, 100 ; Karwowski v. Pitass, 20 App, Div. 118.) SECTION XHI. The Re-Direct Examination. After a witness has been examined and cross-examined, he may be again examined by the party calling him in respect to matters drawn out on the cross-examination, for the purpose of explaining, modifying, limiting or amplifying the testimony so elicited. Thus, if a witness called by the plaintiff has testified to statements made by the defendant tending to support the plaintiff's claim, and on cross-examination has stated that he had not informed the plaintiff's attorney of the statements, his atten- tion may be called upon a re-direct examination to a particular time and place, and persons then present, for the purpose of allowing him to correct his testimony in that particular. [Gil- bert V. Sage, 5 Lans. 287; 5. C, 57 N. Y., 639.) So if on the cross- examination collateral facts are called out tending to create dis- trust of the integrity, fidelity or truth of the witness, the adverse party may call upon the witness to give an explanation tending to remove the damaging inferences arising from the previous testimony, although the circumstances thus proved may be foreign to the principal issue, and would be inadmissible but for the previous cross examination. {United States v. Barrels of High Wines, 8 Blatchf. 475; People v. Buchanan, 145 N. Y. i, 24; McLain V. British & Foreign Marine Ins. Co , 16 Misc. 336.) If The Re-Direct Examination. 263 Examination of expert witnesses. one party on cross-examination calls out part of a conversation, this will render admissible so much of the remainder as tends to explain or qualify what has been received ; and that will be deemed a qualification which rebuts and destroys the inference to be derived from or the use to be made of the portion so called out. {Rouse V. Whiied, 25 N. Y. 170; Forrest v. Forrest, 6 Duer. 126, 127; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; Plainer v. Plainer, 78 N. Y. 90; People v. Beach, 87 N. Y. 508, S12; Klock V. Brennan, 82 Hun, 2-12.) No questions can be properly put to a witness on re-examin- ation which do not relate to matters inquired into on the cross- examination. Button v. Woodman, 9 Cush. [Mass.J 255; Schaser V. State, 36 Wis. 429. See Bassham v. State, 38 Texas, 622; People V. Buchanan, 145 N. Y. i, 24.) And if on the re-examin- ation of the witness new matter is brought out which is neither explanatory of the direct examination nor in rebuttal of the cross-examination, the opposite party has the right to cross- examine again as to such matter. (Wood v. McGuire, 17 Ga. 303.) It seems to be the rule that even where the cross-examin- ation has been to facts not admissible in evidence, the witness may be re-examined as to the facts given. {People v. Buchanan, 145 N. Y. I, 24; Blewett v. Tregonning, 2, Ad. & El. 554; Greville V. Chapman, 5 Ad. & El. [N. S] 731. See Miller v. Montgomery, 78 N. Y. 282, 286.) SECTION XIV. Examination of Expert Witnesses. In a proper case a party may call experts to give opinions on questions of science, skill, trade and the like. Such evidence is admitted upon the supposition that the questions involve matters lying beyond the scope of the observation, knowledge and ex- perience of men in general, and that consequently the jury could not be presumed competent to arrive at a proper determination by the unaided exercise of their judgment on the facts. (Dewitt V. Barley, 9 N. Y. 371 ; Westlake v. St. Lawrence Mut. Ins. Co., 14 Barb. 206, 212; Dubois v. Baker, 30 N. Y. 355, 363; Flanagan V. N. v., etc., R. R. Co., 83 Hun, 522.) If the circumstances are such that the jury are as competent to determine the question 264 Trial Practice. Examination of expert witnesses. as any expert, the case is not a proper one for expert testimony. {Jefferson Ins. Co. v. Cotheal, 7 Wend. 72 ; Lamoure v. Caryl, 4 Denio, 370; Van Zandt v. Mut. Benefit Life Ins. Co., 55 M. Y. i6q; Swartout v. New York Cent. &■ H. R. R. R. Co , y Hun, 571; Payne V. Hodge, id. 6 12; Ferguson v. Hubbell. Cjj N. Y. 1507; Van Wycklen v. City of Brooklyn, 118 N. Y. 424; Roberts v. New York El. R. R. Co., 128 N. Y. 455.) Whether the testimony of experts is necessary must depend somewhat upon the facts of each case. {Cornish v. Farm Building Fire Ins. Co., 74 N. Y. 295.) And if the necessity exists, it must appear that the witness called as an expert is competent, that is, that he is possessed of the requisite skill and experience in the particular matter to form an opinion, {Curtis V. Gano, 26 N. Y. 426 ; Slater v. Wilcox, 57 Barb. 604 ; Clark V. Bruce, 12 Hun, 271, 274.) The witness must possess a peculiar knowledge and skill as to the matter in respect to which he is called to testify as an expert. {Teerpenning v. Corn Exchange Ins. Co., 43 N. Y. 279.) The very word " expert " implies a person instructed by experience ; and whether a person offered as an expert is qualified to speak as such is a fact prelim- inary to his testifying as such, and is to be determined by the trial court. {Jones v. Tucker, 41 N. H. 546; Nelson v. Sun Mut. Ins. Co., 71 N. Y. 453.) Ordinarily the party calling the witness propounds a series of questions to him, calculated to demonstrate his competency as an expert, before calling for an opinion upon a question involving peculiar knowledge and skill. If this is not done, or if the preliminary examination of the witness does not satisfactorily demonstrate his competency as an expert, an objec- tion upon that ground should be taken to any question calling for an opinion. The examining counsel may then withdraw the question and go further into the preliminary examination as to competency, or submit to the ruling of the court. Upon these preliminary questions the adverse party has a right to cross- examine the witness. ( Woodworth v. Brooklyn El. R. R. Co., 22 Apo. Div. 501.) If the objection is not that the witness is incompetent to speal as an expert, but that the case is not one for expert testimony, the latter ground of objection should be stated, as a general objection will be unavailing. (See Orosbi/ v. Bay, 81 N. Y. 242 : Guiterman v. Liv- erpool, etc., Steainship Co., 83 id. 358, 366.) Examination of Expert Witnesses. 865 Framiag hypothetical questions. Where a witness has personal knowledge of the facts upon which his opinion is founded, he may give an opinion as an expert, predi- cated on such facts. [Curtis v. Gano, 26 N. T. 426 ; Bellinger v. New Yorh Cent. R. E. Co., 23 id. 42 ; Conhooton Stone Road Co. V. Buffalo, eto., R. R. Co., 3 Hun, 523.) But when lie possesses no such knowledge, and has no knowledge of tlie facts except such as ln' has derived from the testimony of other witnesses, and those facts are controverted, he. cannot properly be allowed to give a direct opinion, xhereon. {^Quiterman v. Liverpool, etc., Ins. Co., 83 N". Y. 358, 365; Reynolds v. Rohlnson, 64 id. 589 ; Ayres v. Water Commissioners. 22 Hun, 297; Highie v. Guardian Mat. Life Ins. Co., 53 IST. Y, 603, 604 ; ' McCollum v. Bernard, 62 id. 316 ; Hoard v. Peck, 50 Barb. 202. See Allison v. Scheeper, 9 Daly, 365.) In such a case ir is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, or as he can recollect and carry in his mind, and thus form and express an opinion. If the party desires the opinion of sucli witness, he must put to him a hvpotheti- cal question, assuming some or all of the facts claimed by the party to have been established by the evidence, and on the facts so assumed obtain his opinion. (^Reynolds v. Robinson, 64 N. Y. 589 ; Fi'ee- man v. Lawrence, 11 Jones & Sp. 288 ; Ayres v. Water Commis- sioners, 22 Hun, 297; Guiterman v. Liverpool, etc., Steamship Co., 83 N". Y. 358 ; Dolz v. Morris, 10 Hun, 201.) In framing hypothetical questions it is the privilege of counsel to assume, within the limits of the evidence, any state of facts which it is claimed the evidence justifies {Filer v. New Yorh Gent. R. R. Co., 49 N". Y. 42 ; Dolz v. Morris, 10 Hun, 201) ; and an error in tlie assumption does not make the interrogatory objectionable if it is within the possible or probable range of the evidence. {Harnett v. Garvey, 66 N. Y. 641; Stearns v. Field, 90 N. Y. 640.) But the question must not go outside the facts as to which some evidence has been given and which could be assumed as the possible truth. (People V. Stniler, 125 N. Y. 717; People v. Angsbury, qj N. Y. 501.) Each side in an issue of fact, has its theory of what is the state of facts, and assumes that it can prove it to the satisfaction of the jury; and so assuming shapes hypothetical questions to ex- perts accordingly. {Cowley v. People, 83 N. Y. 464, 470; Seymour V. Fellows, 77 id. 178; People v. Lake, 12 id. 358.) Counsel are 266 Trial Practice. Use of memoranda. not confined to facts admitted or absolutely proved, but facts may be assumed which there is any evidence on either side tend- ing to establish, and which are pertinent to the theories which they are attempting to uphold. {Dilleber v. Home Life Ins. Co., 87 N. Y. 79.) The facts assumed need not include all the facts in evidence ; and the fact that part only of such facts are em- braced in the hypothetical question does not render it improper. {Stearns v. Field, 90 N, Y. 640; Mercer v. Vose, 67 id. 56.) Where the facts suggest several hypotheses, the expert may be asked what would be his opinion on one or another hypotheses, with- out first proving it to be the true one. {Erickson v. Smith, 2 Abb. Ct. App. 64.) In putting hypothetical questions upon the cross-examination of an expert, counsel may assume any facts pertinent to the in- quiry, whether testified to by witnesses or not, with the view of testing the skill and accuracy of the experts, subject to the con- trol of the trial court. {Dilleber v. Home Life Ins. Co., 87 N. Y. 79; People V. Angsbury, 97 N. Y. 501, 506) The grounds of the opinion expressed by an expert may be inquired into on his direct examination, or the examining party may take the general statement of the witness, leaving it to the adverse party to make the inquiry on cross-examination if he shall so elect. (Curtis v. Gano, 26 N. Y. 426.) It is within the discretion of the trial court to limit the num- ber of expert witnesses. {Sixth Ave. R. Co. v. Metro, El. Ry, Co,, 138 N.Y. 548.) SECTION XV. Use of Memoranda. Questions frequently arise upon the trial of causes both as to the admissibility of a memorandum made by the witness as evi- dence of the facts stated therein, and as to the right of the wit- ness to look at a memorandum for the purpose of refreshing his recollection. The law, as to the use of memoranda by witnesses while testi- fying, is comparatively well settled in this State. A witness may, for the purpose of refreshing his memory, use any memor- andum, whether made by himself or another, written or printed, Use of Memoranda. 267 An indispensable preliminary. and when his memory is thus refreshed, he must testify to facts of his own knowledge, the memorandum itself not being evi- dence. {^Howard v. McDonough, yy N. Y. 592; Marcly v. Shults, 29 id. 346; Palmer v. People 19 Hun, 372; Raux v. Brand, 90 N. Y. 309; Huff V. Bennett, 6 id. 337; Van Buren v. Cockburn, 14 Barb. 118; Crawford v. Loper, 25 id. 449; Sturm v. Atlantic Mut. Ins. Co., 6 Jones & Sp. 281; ^. C, 63 N. Y. yy; Cameron v. Black- man, 39 Mich, 108; Bigelow v. Hall,gi N. Y. 145; Wise v.Phcenix Fire Ins. Co., loi N. Y. 637; Frindelv. Schaikewitz, 16 App. Div. 143; Carter V. B owe, 41 Hun, 516; Nichols w. White, ^\ Hun, 152.) When the witness has so far forgotten the facts that he can- not recall them, even after looking at a metnorandum of them, and lie testifies that he once knew them and made a memorandum of them at the tune or soon after they transpired, which he intended "to make correctly, and which he believes to be correct, such memo- randum, in liis own handwriting, may be received as evidence of the facts therein contained in connection with and as auxilliary to his testimony, although the witness has no present recollection of them. .{^Howard v. McDonough, 77 K. Y. 592 ; Mandeville v. Reynolds, 68 id. 528 ; Feck v. Valentine, 9i id. 569 ; Gui/ v. Mead, 22 id. 462, 465 ; Ralsey v. Slnsebaugh, 15 id. 485 ; Marcly v. Shults, 29 id. 346 ; Philbin v. Fatriok, 3 Abb. Ct. App. 605 ; S. C, 6 Abb. [N. S.] 284; Russell v. Hudson River R. R. Co., 17 K Y. 134.) But it is an indispensable preliminary to the introduction of such memorandum, that it should appear that the witness is unable, with the aid of the memorandum, to speak frotu memory as to the facts. (Id.; Thurman v. Moshtr, 1 Hun, 344 ; Meaoham v. Pell, 51 Barb. 65 ; Driggs v. Smith, 4 Jones & Sp. 283 ; 45 How. 447 ; / Union Manuf. Co. v. Byin,gton, 1 Hun, 44 ; Brovm v. Jones, 46 Barb. 400, 410, 411 ; Woods v. Be Figaniere, 25 How. 522, 526.) A memorandum made upon statements of others as to then existing facts may be recived in evidence although the person making thu memorandum had no personal knowledge of the facts stated if he testifies that he made a correct memorandum of the facts as stated, and the persons making the statements also testify that they kuew the facts at the time, and correctly stated them to the person making "the memorandum. {Mayor v. Second Avenue R. R. Co., 31 Hun, :241 ; Payne v. Hodge, 7 id. 612 ; 71 K Y. 598. See Shear v. Van Pyhe, 10 Hun, 528.) Memoranda may also be used in cases not strictly coming under 2f5a Trial Practice. Use of memoranda. either of the foregoing heads. Thus, in an action to recover for the conversion of a stock of goods consisting of articles too numerous to- be carried in mind, the witness may make a list of all the items and their values, and if he can state that all the articles named were seized and were of the values therein scaced, lie niAy use tiie list to enable him to state the items. After the witness lias testified, the memo- randum which he lias used to refresh his recollection may be put in evidence, not as proving any thing of itself, but as a detailed state- ment of fhe items testified to by the witness. {Koioard v. Mc- Donough^ 77 N". Y. 592 ; MnCormiak v. Penn. Gent. R. R. Co., 49 id. 303 ; Wilcox Silver Plate Co. v. Green, 9 Hun, 347 ; Driggs V. Smith, 4 Jones & Sp. 283 ; S. C, 45 How. 447.) The manner in which the memorandum, in such case, may be used is very much in the discretion of the trial judge. He may require the witness to- testify to each item separately, and have his evidence recorded in the minutes of the trial, thereby rendering the introduction of the memorandum in evidence unimportant, or he may allow the witness to testify quite generally to the items and their values, and receive the memorandum as the detailed result of his examination, leaving- the adverse party to arrive at the details by eross-examinatiou. {Howard v. McDonough, 77 N". Y. 592.) A witness may use a copy of an original entry to refresh his recol- lection ; but a copy of a memorandum cannot be read as evidence of" its contents [Marcly v. Shults, 29 N. Y. 346; MoGormiok v. Penn. Cent. R. R. Co., 49 id. 303 ; Filkins v. Baker, 6 Lans. 516), even where the original is shown to be lost or destroyed. {Peck v. Yaleri- tine, 94 N. Y. 569.) The examining party cannot be allowed to place a memorandum in the hands of a witness under the pretext of refreshing his recoi < lection where the witness does not suggest any want of recollection, nor express any desire to refresh his memory, nor manifest by the- answers he gives any lack of ability to answer fully and specifically any question put to him by counsel. ( Young v. Catlett, 6 Duer, 437 ; Haach v. Fearing, 5 Rob. 528 ; S. C, 4 Abb. [N. S.] 297 ;. 35 How. 459 ; Squires v. Abbott, 61 K Y. 530 ; Saakett v. Spencer, 29 Barb. 180. But see Metropolitan Nat. Bank v. Rale, 28 Hun, 841.) Counsel have a right to inspect a memorandum used bv a witness for the adverse party to refresh his recollection while testifying, anolitan Ins. Co., 35 App. Div. 82.) As a general rule, where a witness has been discredited by showing that he has made statements out of court inconsistent with his testimony, the testimony of the witness cannot be cor- roborated by evidence that he has at different times made state- ments similar to those he has testified to. {Smith v. Stickney, 17 Barb. 489; Jenkins v. City of Hudson, 40 Hun, 424; Robb v. Hackley, 23 Wend. 50 ; Reed v. New York Cent. R. R. Co., 45 N. Y. 574, 577 ; Wray v. Fredderke, 11 Jones 8: 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. Fredde^ie, 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 col- ored statement, then he may be allowed to show in reply that he has made similar declarations at a time when the motive imputed to him did not exist. {Herrick v. Smith, 13 Hun, 446 ; Hotchkiss V. Germania Fire Ins. Co., 5 id. 90 ; Robb v. Hackley, 23 Wend. 50.J So where the evidence tends to show that the account of the transaction given by the witness is a fabrication of late date^ it may be shown in contradiction that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Id.) 286 Trial Practice. Commitment of perjured witness. 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 any testimony 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 Ciode, § 102.) Witnesses to estab- lish the perjury 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 docu- ment produced by either party is deemed by the court necessary to be used in the prosecution for the perjury, the court may detain it and direct its delivery to the district attorney. (Id., § 104.) These proceedings, though taken during the trial, form no part of the trial. {Lindsay v. People, 63 N. Y. 143.) SECTION XX. Objections to the Admission or 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 trials 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 objec- tion 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 Link V. Sheldon, 136 N. Y. i; Turners. City of Newburgh, 109 N. Y. 301 ; Kelly v. Cohoes Knitting Co., 8 App. Div. 156 ; Milch V. Westchester Fire Ins. Co., 13 Misc. 231 ; 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 Objections to Admission or Rejection of Evidence. 387 Objections to evidence, when taken. 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. Meyberg, 63 N. Y., 656.) The law requires a party desiring to review rulings upon a trial, to take exceptions in proper form. This rule is established for the convenience of the courts as well as for the protection of the parties, and the latter cannot, by stipulation, dispense with the requirement. (See Briggsv. 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 incompetency is discovered, and, if possible, before the examina- tion of the witness is entered upon {Sherman v. Scott, 1 5 Week. Dig. 149) ; though if the fact of incompetency is disclosed upon examination an objection then taken will be in time. (^Seeley v. Engell, 13 N. Y. 542.) While the courts will not permit a party to remain silent when incompetent evidence is offered until he can see whether it is damaging to his case and then take an ob- jection to the competency of the evidence or of the witness, yet this will not require a party to interrupt the examination of a witness in respect to material matter upon a mere suspicion that the witness may be debarred by his position from testifying. The party may await his opportunity on cross-examination to bring out the facts, and if on such examination it appears that the wit- ness is incompetent, may move to strike out the testimony. {Loveridge v. Hill, 96 N. Y. 222.) An objection to the competency of a witness may be taken too soon as well as too late. Thus, if one objection to the com- petency of a witness under section 829 of the Code is taken before the witness is sworn, the objection will be overruled, and if the witness afterward gives illegal evidence, to which no spe- cific 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-) In any case an objection to evidence made before a question is put calling for the evidence objected to and before there is an offer of evidence, is premature. {Matter of the ac- counting of Morgan, 104 N. Y. 74; Krakowski v. North N. Y. Building, &c.. Ass., 7 Misc. 188.) An objection to evidence as incompetent, immaterial or irrele- vant, should be taken when the evidence is offered. {Miller v^ 1288 Trial Practice. Objections, how taken. Montgomery 78 N. Y. 282; Bradner v. Strong, 89 N. Y. 299.) But if the answer of the witness is given before the counsel has an opportunity to interpose an objection, an objection immedi- ately following the answer will be in time. (Pratt v. New York Cent. & H. R. R. R. Co., 77 Hun, 139.) Objections, how taken. — An objection should be specific and point out the precise ground for the exclusion of the testimony, as a general objection based upon grounds not disclosed will be disregarded on appeal unless it clearly appears that the objec- tion, if properly made, would have been decisive of the case and could not have been obviated, or unless the evidence was in its essential nature incompetent. {Levin v. Russell, ^2 N. Y. 251; Willia^ns v. Sargeant, 46 id. 481; Quinby v. Strauss, 90 id. 664; Tooley v. Bacon, 70 id. 34; Daly v. Byrne, 77 id. 182; Tiemeyer v. Turttquist, 85 id. 516; Mabbett v. White, 12 id. 442; Ross v. Camp- bell, ig 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; Stouter v. Manhattan Ry. Co., 127 N. Y, ■661; Wallace v. Vacuum Oil Co., 128 N. Y. 579; Tozerv.N. Y. Cent. & H. R. R. R. Co., 105 N. Y. 659.) But if the objection could not have been obviated had the grounds been specifijally pointed out, then a general objection is efTcctual. {3ferritt v. Seaman, 6 N. Y. 168; McCombie v. Spader, I Hun, 193; Sinclair v. Neill, id. 80, 83; Mulgueen v. Duffy, 6 id. 299; People V. McGuire, 2 id. 269, 278.) So if evidence clearly incompetent is objected to on that ground, the objection will be sufficient. (Collins v. Rockwood, 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. Ellithorp, 95 id. 48, 52.) But an objection to the effect that the witness is incompetent to give testimony on a particular points because it involves a personal communication between the wit- ness, 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 compe- ^tency {Ward v. Kilpatrick, 85 N. Y. 413), or at least raises no Objections to Admission or Rejection of Evidence. 289 Insnfficient objections. question as to its competency. {Phi'lips v. Metropolitan El. Ry. Co., 12 App. Div. 283; Brown v. Wakeman, 45 St. Rep. 671; Bacon v. Proctor, 13 Misc. i.) An objection that a paper offered in evidenca is irrelevant raises no question as to its authentica- tion {Wood\. Weimar, 104 U. S. 786), and an objection that it is incompetent, immaterial and irrelevant will not raise a ques- tion as to its execution. {Mackinstry v. Smith, 16 Misc. 351.) An objection that an exemplified copy of a judgment is incom- petent evidence raises no question as to the form of the certifi- cate and exemplification. {Ross V. Campbell, 19 Hun, 615.) An objection that a question is incompetent and argumentative pre- sents no question as to its materiality {Scott v. Metropolitan El. Ry. Co., 2 Misc. iijo), and an objection to evidence as irrelevant and immaterial is not equivalent to a claim that it is not within the pleadings. {Claflin v. N. Y. Standard Watch Co., 7 Misc. 668; Uertz v. Singer Mfg. Co., 35 Hun, 116.) An objection, though sufficiently specific, if based upon unten- able grounds, is unavailable on appeal. ( Ward v. Kilpatrick, 85 N. Y. 413; Mead V. Shea, 92 iJ. 122; Briggs v. Wheeler, 16 Hun, 583.) The party objecting to the admission of testimony 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 excluded, the party taking the objection will stand in a worse position on appeal than he would if the objec- tion was 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 the 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 one of two defendants and irrelevant as to the other. In such case the objection to the evi- dence must be taken by the latter only. {Black v. Foster, 28 Barb. 387; 7 Abb. 406.) If objected to by both defendants it is not error to overrule the objection. (Id.) The party against whom incompetent evide.nce has been received should move to strike it out. {Keegan v. Third Ave. R. R. Co., 34 App. Div. 297.) When objection is taken to evidence as irrelevant, and its rel- evancy is not apparent, the court may call upon the counsel I 9 2'JO Trial Practice. Exceptions. 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 court will accept the assurance of counsel that the evidence will become material, and will not re- quire a statement of the connecting evidence, especially if good reasons are suggested why such disclosures should not be made. Exceptions. — An exceptifws to the ruling of the court upon the question of admissibility of evidence must be taken at the time the ruling is made, and must then be reduced to writing by the exceptant or entered in the minutes. (Code of Civ. Pro., § 995.) In practice the stenographer who takes the evidence also takes to 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 stenoprapher to the ruling upon each objection taken upon the trial. This arrangement merely entitles the party to have an exception entered in the settlement of the case to such rulings as he desires reviewed. (Briggs v. Waldron, 83 N. Y. 582. See Greer v. Greer, 58 Hun, 251; People v.Buddenseick, 103 N. Y. 487.) An exception to the admission of evidence can be taken only where it is received against the parties' objection {Third Ave. R. R. Co. V. Ebling, 100 N. Y. 98), and an objection is unavail- ing unless followed by an exception. (Hard v. Ashley, Wj N. Y. 606.) 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 propositions, the exception should be taken to each separate proposition, for if a single exception is taken to all, and any one of the propositions can be maintained, the excep- tion is not well taken. (Coghlan v. Dinsmore, i Abb. Ct. App. 375; 35 How. 416; 4 Trans. App. 386; Day v. Roth, 18 N. Y. 448. See Haggart v. Morgan, 5 id. 4 22; Kluender v. Lynch, 2 Abb. Ct. I App. 538; 4 Keyes, 361 Caldwell v. Murphy, 11 N. Y. 416.) Objections to Admission or Rejection of Evidence. 291 Waiver of objections and exceptions. 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 the 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. Hoivard, 79 N.Y. 415 ; Dilleber v. Home Life Ins. Co., 69 id. 256; Lyons v. New York El. R. R. Co., 26 App. Div. 57 ; Carlson v. Ifmterson, 10 Misc. 388 ; Gray v. Brooklyn, etc., Co., 35 App, Div., 286.) So where a question by counsel has been objected to, and after a statement by the examining counsel as to the object of the testimony, the court repeats the question and it is answered without further objection, an excep- tion to the implied ruling of the court will present the question for review. ( Thompson v. Manhattan El. Ry. Co., 1 1 App, Div. 182.) But if, after the objection is made and overruled, the question is withdrawn before answer, and is again repeated at a subsequent stage of the examination, and is answered without objection, the failure to object to the last question is a waiver of the former objection. {Wagner v Jones, yy N. Y. 590 ; Schalk v. Norris, 7 Misc. 20,) An objection to incompetent evidence may be waived by omit- ting to take an objection thereto when such evidence is offered, subject, however, to the qualification that the trial judge may, in his discretion, permit the party, upon sufficient 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; Brady v. Nally, 151 N.Y. 258.) Where incompetent evidence has been received without objection, a repe- tition of the evidence under objection will not require a reversal. iWhite V. Old Dominion Steamship Co., 102 N. Y. 660) A party may waive an objection to incompetent evidence by examining as to the forbidden transactions or conversations in the first instance, and thus opening the door for the adverse party to continue the inquiry as to the same matters. {Miller v. Montgom- ery, 78 N.Y. 282.) But if the adverse party draws out the illegal 292 Trial Practice. Waiving an objection to evidence. evidence upon a direct examination or upon cross-examination, and an objection is duly taken, itwill not be waived byre-examin- ing or cross-examining the witnesses as to the same matter. {Simpson v. Watrus, 3 Hill, 619 ; Duff v. Lyon, 1 E. D. Smith, 536. See, also, Worrall -v. Parmelee, 1 N. Y. 519. But see Tooker V. Gormer, 2 Hilt. 71 ; Grimm v. Hamel, id. 434; Oakley v. Sears, 2 Rob. 440.) A party does not waive his objection and exception to the admission of incompetent evidence by attempting to dis- prove the matters testified to, or to prove facts inconsistent with them. A party excepting to the admission of testimony is not bound to concede its truth or to refrain from combating it in order to retain his exception. {Martin v. New York, N. H. & H. R. R. Co., 103 N. Y. 626; Douglas v. New York El. R. R. Co., 14 App. Div. 471 ; Woods v. Buffalo R. R. Co., 35 App. Div. 203 ; Lyons v. New York El. R. R. Co., 26 App. Div. 57.) 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 evi- dence upon an issue not made by the pleadings. {Bruce v. Burr, 6"] N. Y. 235 ; Williams v. Mechanics and Traders' Fire Ins. Co., 54 id. 577 ; Codd v. Rathbone, 19 id, 37 ; Dewey v. Moyer, 9 Hun, 473, 480; Knapp 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 a fact excluded 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. Forrest, 6 Duer, 102, 117 ; Neilv. Thorn, 88 N.Y.270, 277. See Crosby v. Day, 81 id. ^42.) 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 subsequent stage of the trial at the instance of the party excepting ; and that, under such circumstances, the errone- ous 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 Motions to Strike Out or Disregard Evidence. 293 Evidence bearing upon the issues. will enaWe 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. {Nickerson v.Ruger, 76 N.Y. 279, 283 ) The parties to an action have the right to make a rule of evidence for their own case, and they are presumed to have done so when testimony, otherwise incompetent, is received without objection and without any effort to have it stricken from the minutes or ■disregarded by the trial court. {Brady v. Nally, 151 N. Y. 258.) SECTION XXI. Motions to Strike Out or Disregard Evidence. As a general rule a party will be deemed to have waived an objection to incompetent evidence by a failure to object to its admission 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 exclude it from the consideration of the jury. {Hallw. Earnest, 36 Barb. 585, 591 ; Linsday v. People, 67 id. 548; 5 Hun, 104; Stephens V. People, 4 Park, 396; Filkins v. Baker, 6 Lans. 516; Loveridge v. Hill, 15 Week. Dig. 149.) But it is probable that the question in such case is not so much as to the power of the court as to the proper exercise of judicial discretion. (Ste Matter of Will of Lasak, 131 N. Y. 624,) Equally strong language has been used in other cases (See Quinn v. Lloyd, 41 N. Y. 349), which has been construed as relating only to the question of the exercise of discretion. (See People \. Chacon, 102 N. Y. 669, 671.) 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. {Hamilton 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 294 Trial Practice. Remedy of the party aggrieved by the evidence. before the close of the trial to move to strike it out. {Miller v. Montgomery, 78 N. Y. 282, 286.) This is not an uncommon practice in the trial of cases. But the exclusion of the evidence at a subsequent stage of the trial is wholly in the sound discretion of the trial judge, and will be exercised where it is just that the incompetent evidence should be excluded, and no harm can come to the other party from the delay in making the objection. (Id. See Matter of will of Lasak, 131 N. Y. 624.) If, however, the objectionable character 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- Sf-e 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. Montgomery , 78 N. Y. 282.) 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 irre- sponsive and objectionable. An objection to the answer would accomplish 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 irre- sponsive part of the answer be stricken out, or to request the judge to instruct the jury to disregard it, and, in case of a denial of the motion or request, to except to the ruling. (Platner v. Plainer, 78 N. Y. 90, 102 ; Farmers' Bank of Washington Co. v. Cowen, 2 Abb. Ct. App. 88; Holmes v. Roper, 141 N. Y. 64; Denise v. Denise, no N. Y. 562; Hickenbottom. v. D., L. & W. R. R. Co., 122 N. Y. 91 ; Warren Chemical, etc., Co. v. Holbrook, 118 N. Y. 586.) If an objection has been taken to the question, and the answer is irresponsive and of doubtful propriety, the ex- amining party should disclaim the answer and decline to receive it (See O'Hagan v. Dillon, 76 N. V. 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 an- swer is responsive to the question and is received under objection and exception, the party calling for it has no right to have it afterward stricken out. (Burst v. Second Avenue R. R. Co., 72 N. Y. 542.) Motions to Strike Out or Disregard Evidence. 295 Where trial judge becomes doubtful as to admissibility of evidence. 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, 6j Barb. 548 ; 5 Hun, 104.) 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 eflect by a proper charge from the court. (Gawtry V. Doane, 51 N. Y. 84.) Where the trial judge during the progress df the trial becomes doubtful as to the admissibility of evidence received under objec- tion and exception, or provisionally, he may correct the error into which he has fallen in admitting the evidence, by striking the testimony out of his minutes and directing the jury to disregard it. When this is done the exception taken to the erroneous ruling falls with the testimony. {Linsday v. People, 67 Barb. 548; | 5 Hun, 104; People v. Parish, 4 Denio, 153; Holmes v. Moffat, 120 N. Y. 159; Gallv. Gall, 114 N. Y. 109. But see Erben v. Loril- lard, 19 N. Y. 299; Tabor v. Van Tassell, 86 id. 642; Mandeville V. Guernsey, 51 Barb. 99; O' Sullivan v. Roberts, 7 Jones & Sp. 360; Newman v. Goddard, 3 Hun, 70; 48 How. 363; Allen v. Jam£s, 7 Daly, 13; Koehne v. N. Y., etc., R. R. Co., 32 App. Div. 419.) 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, strike out his testimony or leave it for the jury with proper instructions as to its due weight. (People V. Harper, 1 Edm; Sel. Cas. 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 which is incompetent, the court may properly deny it. {McCabe v. Brayton, 38 N. Y. 196; Holmes v. Roper, 141 N. Y. 64; Thomas Roberts Stevenson Co. v. Tucker, 14 Misc. 297 ; Fleck V. Rau, 9 App. Div. 43.) So if the evidence is both irresponsive and incompetent, the motion should be based upon both grounds, and if some portion of it is competent the motion should be lim- ited to such part as is objectionable. {Peoples. Spiegel, f Hun, 296 Trial Practice. Evidence admitted without objection. i6i; Kahn v. New York El. R. R. Co., 7 Misc. 53; Gundlin v. Hamburg-American Packet Co., 8 Misc. 291.) Evidence admitted without objection, or properly admitted under objection, which for any reason should not be considered by the jury or affect the result, is not necessarily stricken out, but may be retained 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. Y. 628 ; Holmes v. Moffatt, 120 N. Y. 159; Gawtry v. Doane, 51 id. 84: Pontius v. People, 82 N. Y. 339, 347 ; Plainer v. Plainer, 78 id. 90, loi.) A motion to strike out evidence which, if standing alone, could not properly be re- ceived under objection, is sometimes denied upon the notion other evidence will be given which will connect the evidence in question with the issue and render it material. The evidence is provisionally 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. Y., 1 1 Jones & Sp. 158; McKean v. Adams, n Misc. 387: United States Vin- egar Co. V. Schlegel, 143 N. Y. 537.) But if evidence is objected to when offered, and the objection is overruled, an exception taken, and the evidence received absolutely and unconditionally, it is superfluous if not disrespectful to ask the court afterward to strike out such evidence. One valid exception for an error com- mitted by the judge is sufficient to assert and maintain all the rights of the parties on the question. {Hall v. Earnest, 36 Barb. 585. 59I-) 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; II Abb. 157.) And when the opportunity of cross-examining a witness has been lost by the misconduct of the witness, or the fault or negligence of the party calling him, the direct examina- tion of the witness may be stricken out. {Forrest v. Kissam, 7 Hill, 463 ; Hewlett v. Wood, 67 N. Y. 394, 397. See Curtice v. West, so Hun, 47; ante p. 261.) And it is now a settled rule that where a party is deprived of the benefit of the cross-examtna- Variances and Amendments. 397 As to parties. tion 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 ir.eans 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. i^Sturm V. Atlantic Mut. Ins. Co., 63 N. Y. -jj, 87 ; People v. Cole, 43 id. 508 ; Smith v. Griffith, 3 Hill, 333.) 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 intended to protect the parties from mere formal errors in their practice, either by permitting 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 naipe of a party, or a mistake in any other respect, or by inserting an alle- gation 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 every 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 process, plead- ing or other proceeding by adding or striking out the name of a person as a party or by correcting a mistake in the nam.e of a party, and that this power is given without any qualification 898 Trial Practice. Amendment as to parties. save that the amendment must be in the furtherance 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 before 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 res- pect is not unlimited; and while the section confers full author- ity 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 sole defendant and insert in lieu thereof the name of other persons as defendants. (New York State Monitor Milk Pan Association v. Remington Agricul- tural Works, 89 N. Y. 22 ; Bassett v. Fish, 75 id. 303. See Shaw v. Cock, \2 Hun, 173; 78 N. Y. 194; Davis v. Mayor, etc., of New York, 14 id. 506, 527 ; McGarry v. Board of Supervi- sors, 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; Coffingv. Tripp,\ How. 115.) But where the action is brought by the proper person under a wrong name or description, 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 R. R. Co., 3 Keyes, 497; 4 Abb. Ct. App. 422; 3 Trans. App. 203; 6 Abb. [N. S.] 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 defend- ants are sued under their partnership name, the plaintiff suppos- ing 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 individual {Tigke v. Pope, 16 Hun, 180), the error may be cured by an amendment. Variances and Amendments. 5599 As to parties. ,as there is no actual change of parties, but only a change of name or description. But where an action is brought against trustees to charge the estate with liability for personal injuries alleged to have been sustained by the plaintifl through failure to keep the premises in repair, the complaint cannot be so amended on the trial as to change the action to one against the trustees personally. {Keat- ing v. Stevenson, 21 App. Div. 604.) Where an action to recover damages sustained by an infant through the negligence of the defendant is brought in the name of the guardian ad litem, as such, instead of in the name of the infant by his guardian ad litem, the court may allow the correc- tion of the title to the summons and complaint on the trial. {Kaplan v. New York Biscuit Co., 5 App. Div. 60.) And where an action is brought by an infant in his own name without the ap- pointment of a guardian ad litem, the court, on the motion of the defendant for a non-suit, may grant the plaintiff's counter appli- cation for the appointment of a guardian nunc pro tunc and the amendment of the pleadings accordingly. {Rima v. Rossie Iron Works, 120 N. Y. 433.) The court has power to strike out the name of one of several •defendants, leaving the action to proceed against the others (Ackley v. Tarbox, 31 N. Y. 564; Lozve v. Rommell, 5 Daly, 17; Angellv. Cook, 2 N. Y. Sup. Ct. [T. & C] 175; Roberts v. John- son, 5 Jones & Sp. 157 ; 58 N. Y. 613 ; Bemis v. Bronson, i Code R. 27), or to strike out the name of one of several plaintiffs •{Laphain v. Rice, 55 N. Y. 472), but not to bring 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 Sherman v. Parish, 53 N. Y. 483; New- man yr. Marvin, 12 Hun, 236; Bairdv. Poole, 12 N. Y. 495, 508 : Loeschigk v. Addison, 7 Rob. 506.) The latter procedure, al- though especially adapted to an action in equity, would seldom ■be proper in an action at law. (See Webster v. Bond, g Hun, 437.) 300 Trial Practice. Inserting an allegation material to the case. Inserting an allegation material to the case. — The Code ex- pressly authorizes the court, upon the trial of an action, in fur- therence of justice, and on such terms as it deems just, to amend a pleading by inserting an allegation material to the case. (See ante, p. 297.) 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 supplying the missing averment. But it does not authorize the court upon the tfial to allow a party to amend his pleading by setting up a new cause of action or de- fense. [Woodrjiffv. Dickie, 31 How. 164; 5 Rob. 619; Ford v. Ford, 35 How. 321; 53 Barb. 525; Hochstetter v. Isaacs, 44 How. 495; 14 Abb. [N. S.] 235, not&\ Joslynv. Joslyn,(^Yi\y!\, 388 ; Van Syckles v. Perry, 3 Rob. 621 ; Decker v. Saltsman, i Hun, 421 ; Dezengremel v. Dezengremel, 24 id. 457; Graves v. Cameron, 9 Daily, 152.) But where a motion is made to dismiss a complaint upon the ground that it does not state facts suffi- cient to constitute a cause of action, and it appears from an in- spection of the pleading that, by reason of the omission of some material averment, it would have been held insufficient on de- murrer had a demurrer been interposed, the court may deny the motion, and allow the omitted allegation to be inserted by amendment, if the matter inserted does not amount to a new cause of action. (Woolsey v. Village of Rondout, 4 Abb. Ct. App. 639 ; 2 Keyes, 603.) Thus, if a defendant in an action of eject- ment moves at the opening of the trial to dismiss the complaint upon the ground that it does not contain the description of the land which the statute requires (See Code of Civ. Pro., § 15 11), the court may, in its discretion, deny the motion, and at a sub- sequent stage of the case allow the plaintiff to amend by insert- ing a description conforming to that contained in a deed intro- duced in evidence. {Olendorfv. Cook, i Lans. 37.) The allow- ance of the amendment in such case is not the subject of excep- tion. (Id.) But if a motion to dismiss the complaint for in- sufficiency is made at the beginning of the trial, and any doubt as to its sufficiency exists in the mind of the plaintiff, he should ask leave to amend ; for if the motion is denied, and the defend- ant excepts, and no amendment is asked for or made, an error in Variances and Amendments. 301 Variance between pleadings and proof. the ruling will be fatal to a recovery. (Tooker v. Artwvx, 76 N. Y. 397. See ante, p 246.) Where the defendant in an action brought in a city court is a resident of the city and the complaint contains no allegation of this jurisdictional fact, the defect may be cured on the trial by the insertion of the omitted allegation. {Hogan v. Glueck, 2 App. Div. 82 ; Jenkins v. Hall, 66 St. Rep. 201.) As a general rule the discretionary power of the court to allow an amendment will be readily exercised where a party waits until the trial before raising an objection to a pleading. (Winch v. Farmers Loan & Trust Co., 1 1 Misc. 390.) Variance between pleadings and proof. — A variance between a pleading and the proofs given upon the trial is not a fatal de- fect 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 he has been misled, 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 satisfaction of the court that the ad- verse party has been misled, the variance is to be deemed im- material and no amendment is necessary. {Place v. Minster, 65 N. Y. 89; Catlin v. Gunter, 11 id. 368; Guenther v. Amsden, 16 App. Div. 607; Sussdorfv. Schmitt, 55 id. 319; Fowler v . Martin, I N. Y. Sup. Ct. [T. & C] 377; Clayes v. Hooker, 4 Hun, 231 ; Potter V. Thompson, 22 Barb. 87; Newstadt v. Adams, 5 Duer. 43: Hart v. Hudson, 6 id. 294; Hauck v. Craighead, 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 Civ. Pro., § 540. See Chapman v. Carolin, 3 Bosw. 456; Hauck v. Craighead, 4 Hun, 561; Knapp V. Roche, 5 Jones & Sp. 395; Yates v. Alden, 41 Barb. 172, 176; Hall V. Gould, 13 N. Y. 127; Meyer v. Ftegel, y Koh. 302 Trial Practice. Variance between pleadings and proof. 122; 34 How. 434; McComber v. Granite Ins. Co., 15 N. Y. 495; Bennett v. Judson, 21 id. 238.) In effect, the 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 cost.";. 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 shows that they are surviving 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 plain- tiff may amend his complaint by so increasing the amount for which judgment is demanded as to cover any verdict which the jury may render under the proofs. {^Johnson v. Brown, 57 Barb. 118; Knapp V. Roche, 5 Jones & Sp. 395; 62 N. Y. 614; Hamilton v. Third Avenue R. R. Co., 3 Jones & Sp. 118; Palmer v. Great Western Ins. Co., 10 Misc. 167; Frankfurter v. Home Ins. Co., lo Misc. 157; Magee v. City of Brooklyn, 18 App. Div. 22.) So a plaintiff who has proved special damages may be allowed to amend his complaint by inserting an averment of such damage. demons v. Davis, 4 Hun, 260.) So in an action of slander an ■allegation that the defendant had charged the plaintiff with having robbed him of $400, while the proof shows that the charge was of robbing him of $1200 is not a variance prejudicial to the defendant. {Miller v. Holmes, 46 St. Rep. 871.) A complaint for goods sold at an agreed price and a recovery for the value of the goods as proved on th4 trial may be sustained where the defendant has been allowed an opportunity to amend his answer and his rights have been fully protected (Terwilliger v. Ontario C. & S. R. Co., 73 Hun, 335); and under a complaint to recover an alleged agreed compensation for services a recovery for the value of the services as proved on the trial may be sustained un- less it appears that the defendant has been misled by the variance between the pleadings and proof. {Sussdorfv. Schmidt, 55 N.Y. Variances and Amendments. 303 When a pleading cannot be amended to conform to the facts proved. 320.) 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. {Vibbardv. Roderick, 51 Barb. 616.) So a complaint charging the defendant as plaintiff's agent for money had and received may be changed by amendment 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 agreement 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 im- material and either disregarded or the defendant will be allowed to conform his answer to the facts. {Clayes v. Hooker, 4 Hun, 231; Catlin V. Gunter, 11 N. Y. 368. See Guenther v. Amsden, 16 App. Div. 607.) I A pleading cannot be amended to conform to the facts proved where an objection has been taken in time upon the ground that the evidence did not tend to support the allegations of the plead- ing. (Beard v. Tilgkman, 66 Hun, 12; Wheaton v. Voorhis, 53 How. 319; Barnes V. Seligman, 55 Hun, 339.) If any amendment of the pleadings is necessary it should be made before the intro- duction of the evidence if objection is made to the evidence when offered. {Beard v. Tilghman, 66 Hun, 12.) The court has ample power to make the pleadings conform to the evidence which the party proposes to introduce. ( Therarson v. Peterson, 2 2 How. 98; Smith v. Rathbun, 75 N. Y. 122.) But this is not conforming the pleadings to the proof as the evidence to which the amendment relates has not been given. (Id.) In an action upon a policy of insurance the plaintiff may be allowed at the opening of his case to so amend his complaint as to demand the amount named in the policy. {Miaghan v. Hartford Fire Ins. Co., 24 Hun, 58.) Where an amendment is allowed upon the trial it must be actually made if the adverse party requires it. {Ballou v. Par- sons, 1 1 Hun, 602.) The amendment should be written out and directed to be inserted in the proper place in the pleading to be 504 Trial Practice. Failure of proof. amended. (Charlton v. Rose, 24 App. Div. 485,) If the adverse party insists upon being served with a copy of the proposed amendment the court on granting the amendment should direct such service. {La Chicotte v. Richmond R. & E. Co., 15 App. Div. 380.) But such service need not be made unless it is made a condition of the allowance. {Lane v. Hayward, 28 Hun, 583.) Failure of proof. — Where the allegation to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a variance within the meaning of the sections of the Code before cited (§§ 539, 540), but a failure of proof. (Code of Civ. Pro., § 541.) In such case there can be no recovery under the pleading without -amendment if the objection is properly presented by the adverse party. {Reed v. McConnell, 133 N. Y. 425.) Nor can there be an amendment of the pleading to conform to the facts proved. ■{Freeman v. Grant, 132 N. Y. 22.) Such a case is presented where the action is based upon a par- ticular contract or tort and the proof is of a different contract or tort {Cottrellv. Conklin, 4 Duer, 45, 52; Hempstead v. New York Cent. &■ H. R. R. R. Co., 28 Barb. 485; Parker v. Rensselaer .etc., R. R. Co., 16 id. 315; Curtiss v. Marshall, 8 Bosw. 22; Wald- heitn v. Sichel, i Hilt. 45; Smith v. Stagg, 15 Jones & Sp. 514. See Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420, 428; Bailey v. Johnson, i Daly, 61; Place v. Minster, 65 N. Y. 89, 102), or where a tort is alleged and the proof discloses a contract, or vice versa. {Ransom v. Wetmore, 39 Barb. 104; Whitcomb v. Hunger- ford, 42 id. 177; Saltus v. Genin, 3 Bosw. ''50; Beard v. Yates, 2 Hun, 466; 5 N. Y. Sup. Ct. [T. & C] yQ; Moore v. McKibbin, 33 Barb. 246; Nosserv. Corwin, 36 How. 540; Vrooma^i v. Jackson, '1 Hun, 326; Butler v. Livcrmore, 52 Barb. 570, 578; Walter v. Bennett, 16 N. Y. 250; Patterson v. Patterson, i Abb. [N. S.] 262; I Rob. 184; Barnes v. Quigley, 59 N. Y. 265; LIca v. Pierce, 63 Hun, 400; Smith v. Smith, 4 App. Div. 227; Trucsdcll v. Bourke, 145 N. Y. 6i2; Button v. Schuyler s Steam Tow-Boat Line, 40 Hun, 422.) Thus, in an action founded upon a contract to recover damages for its breach, there can be no recovery for the value of the property received under it by the party who afterward repudi- Variances and Amendments. 305 Failure of proof. ates it as void under the statute of frauds. {Reed v. McConnell, 133 N. Y. 425.) So where fraud is alleged as the basis of an action, there can be recovery on proof of a right of action on contract. {Truesdellv. Bourke, 145 N.Y. 612.) So in an action to recover damages for the wrongful taking and conversion of goods there can be no recovery as for money had and received. (Freeman v. Grant, 132 N. Y. 22.) So in an action for money had and received, the plaintiff cannot recover upon an account stated. {Vestner V. Findlay, 10 Misc. 410.) And in an action for mali- cious prosecution the plaintiff cannot be allowed to amend his complaint so as to recover for a false imprisonment proved. (Cumber v. Shoenfeldt, 34 St. Rep. 770.) So, if a complaint charges defendants as carriers, and the proof shows that they were forwarders {Hempstead 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 v. Rensselaer & Saratoga R. R. Co., 16 Barb. 315), or alleges that the defendant guaranteed a note, and the proof shows that he endorsed a note {Cottrell v. Conklin, 4 Duer, 45), or alleges an agreement between the defendant and a third per- son, 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 performance of a contract, and the proof shows excuse for non-performance {Sclinaier v. Nathan, 31 App. Div. 225), or alleges a breach of an agreement between the defendant 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 {Southwick v. First Nat. Bank of Mem- phis, 84 N. Y. 420), there is a failure of proof and the case 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- 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 20 306 Trial Practice. Motion to compel either party to elect. 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. Commercial Warehouse Co., 58 IST. Y. 308 ; Tisdale v. Mbrffan, 7 Hun, 583, 585 ; Doyle v. Mulren, 7 Abb. [N. S.] 258 ; S. C, 1 Sweeny, 517.) The objection maybe taken by motion for a non- Biut or dismissal of the complaint. SECTION XXIII. Motion to Compel either Paety to Elect, eto. 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 a7ite, p. 105), the plaintiif 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 if. T. 237.) SECTION XXIV. Voluntary Nonsuit, or Withdrawing a Jueoe, ETa 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 nonsuu, 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 case, and has a reasonable expectation of being more successful in a subsequent action. (See Dillon v. Cockcroft, 90 N. 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 Voluntary Nonsuit, or Withdrawing a Juror. 307 Court may direct withdrawal of a juror. within the issues, and, if he is, he should apply to the court for leave to withdraw a juror, or submit to a uonsuit. (Id.; People v. Marks, 10 How. 261. See Sohultz v. Third Aiienue R. R. Co., 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. Olcott, 2 Johns. Cas. 307 ; Peoyle v. New York Commmi Pleas, 8 Cow. 127; People v. Mlis, 15 Wend. 371 ; Powell v. Sonnett, 3 Bing. 381 ; Bligh [JST. 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 reUef is refused, the party desir- ing the testimony may, perhaps, have the benefit of an exception. (See Rapelye v. Prince, 4 Hill, 119 ; Neil v. Thorn, 88 N. T. 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 Si/chleft v. Perrv. 3 Rob. 631.) The decision of such an application rests so largely in the dis- cretion of the trial court that the manner of its exercise, after affirmance in the appellate division, will not be reviewed in the Court of Appeals. {Freeman v. Grant, 132 N. Y. 22.) 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. (^«^^, p. 246.) 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 308 Trial Practice. Motion for nonsuit, dismissal of complaint, etc. defendants, or against some one or more of them ; or, upon the grouiid that tau particuliir cause ox action alleged iu ilio 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 tJie ground tliat 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 the evidence adduced was not sufficient to support the declaration. {^Prattv. 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 v. Kelly, 3 Barb. 419 ; Yan VechUn 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 ease 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. HuU, 13 Johns. 334. See Lobar v. Koplin, 4 TSf. 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 b}' 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 Abernethy V. Society of the Church of the Puritans, 3 Daly, 1. See, also, Kern V. Towsley, 51 Barb. 385.^ A. dismissal of the coinplant 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 Motion for Nonsuit, Dismissal of Complaint, Etc. 309 When no cause of action is proven. evidence, it is the duty of the court to nonsuit or direct the ver- dict, as the case may require. {Linkhauf \r. Lombard, 137 N. Y. 417; Dwight V. Germania Life Ins. Co., 103 N.Y. 34.1; Neuendorff V. World Mut. Life Ins. Co., 69 N. Y. 389; Cutter v. Morris, 41 Hun, 575 ; Peoples. Board of Police, 35 Barb. 651 ; Stuart v. Simp- son, I Wend. 376; Herring V. Hoppock, 15 N.Y. 409; Demeyer v. Souzer, 6 Wend. 436; Doane M.Eddy, 16 id. 523, 529: Rudd v. Davis, 3 Hill, 287; 7 i'' 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 ; Thompson v. Lumley, 50 id. 105 ; Deyo v. New York Cent. R. R. Co.. 34 N. Y. 9 ; Ernst v. Hudson River R. R. Co , 24 How. 97 ; Moore v. Gadsden, 93 N. Y. 12.) " Formerly it was held that if there was what was called a scin- tilla of evidence in support of a case the judge was bound to leave it to the jury ; but recent decisions of high authority have estab- lished a more reasonable rule ; that in every case before the evi- dence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests." {Improvement Co. v.Munson, 81 U. S. 44S; Commissioners V. Clark, 94 U. S. 278. And see Hyatt v. Johnson, 91 Penn St- 200 ; Baulec v. N. V. & Harlem R. R. Co. 59 N. Y. 356. 366.) The right and the duty to nonsuit 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.) In deciding a motion for a nonsuit or dismissal of the com- plaint the court should assume these facts as true which a jury could properly find under the evidence. {Starkweather v. Quigley, 7 Hun, 26, 28.) If, in any view of the evidence, takeii in its most favorable light, a verdict may be rendered for the plaintiff, or if there are questions of fact which maybe 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. {Greene v. Miller, 74 Hun, 271 ; Sylvester v. Wheeler, id. 382 ; Andersons. Young., 66 Hun, 240; Weaver v. White, 46 St. Rep. 467; Clemence V. City of Auburn, 66 N. Y. 334, 338 : Thompson v. Lumley, 50 How. 105 ; I Abb.N. C. 254; Carl v.Ayres, 53 N.Y. 14; Bickett 310 Trial Practice. Failure to move for a nonsuit. V. Taylor, 55 How. 126 ; Colt v. Sixth Avenue R. R. Co., 49 N.Y. 671 ; Heyne v. Blair, 62 id. 19; Freundv. Importers and Traders' Nat. Bank, 3 Hun, 689, 6)90; Morse v.Osborn, 64 Barb. 543.) In such case a refusal to nonsuit is not error. {Kelly v. Kelly, 3 Barb. 419 ; McMullen v. Hoyt, 2 Daly, 271, 276; Fellows \. Barton, 66 Barb. 608 ; Downs \.Jalowack, id. 458.) A plaintiff is entitled to go to the jury although he has shown himself entitled to nom- inal damages only (Van Rensselaer v. Jewett, 2 N. Y. 135 ; Weber V. Kingsland, 8 Bosw. 415), and in an action brought by an admin- istrator to recover damages, under the statute, for the negligent killing of a child, the absence of proof of special pecuniary dam- age resulting from the death to the next of kin, will not justify the court in nonsuiting the plaintiff, or in directing a verdict for nominal damages only. (Ihl v. Forty-second Street R. R. Co., i,"] N. Y. 317 ; Ryallv. 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 nonsuit is an admission that the evidence on the part of the plaintiff is sufficient prima facie to justify a verdict in his favor {Ross V. Colby, 3 Hun, 546); and in the absence of such motion, or of a request that the court direct a verdict, the defendant can- not be heard to allege on appeal that the verdict was without sufficient evidence to carry the case to the jury (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632 ; Shcely v. Cannon, 17 Week. Dig. 159; Hobson v. New York Condensed Milk Co., 25 App. Div. Ill ; Kaufman v. Canary, 21 Misc. 302 ; Eckensberger v. Amend, 7 Misc. 459 ; to Id. 145 ; Scott v. Yeandle, 20 Id. 89 ; Griffith v. Staten Island R. T .R. Co., 89 Hun, 141), and it has been held that the omission will preclude him from moving to set aside the verdict as against evidence {Pcake v. Bell, 7 Hun, 454 ; St. John V. Skinner, 44 How. 198; 3 Jones & Sp. 565), or without evidence (Meyer v. Subiirban Home Co., 25 Misc. 311, 686), or as insuffi- ciently supported by evidence (Rowe v. Stevens, 44 How. 10 ; 2 Jones & Sp. 436), or claiming that the case presented such a pre- ponderance of evidence in favor of the defeated party as to make it the duty of the court to direct the jury how to find. (St. John V. Skinner, 44 How. 198. And see Gescheidt v. Quirk, 66 How. Motion for Nonsuit, Dismissal of Complaint, Etc. 311 Where the alleged cause of action has not been proven. 272 ; Carper v. O'Brien, 47 How. 80.) But it has more recently- been held that a motion for a nonsuit is not a condition prece- dent to a motion for a new trial on the minutes of the court upon the ground that the verdict is contrary to evidence or is against the weight of evidence. {Mitchell v. Rouse, 19 App. Div. 561; Picardv. Lang, 3 App. Div. 51 ; Kelly v. Frazier, 27 Hun, 314; Lucas V. McEnerna, 19 Hun, 14; Shearman v. Henderson, 12 Hun, 170.) Where the alleged cause of action has not been proven. — It may be laid down as a general rule, that where a plaintiff fails to prove the cause of action set up in his complaint, not in some particular 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. {Reed v. McConnell, 133 N.Y. 425; Freeman v. Grant, 132 N. Y. 22, 29; Southwick v. First Nat. Bk. of Memphis, 84 N. Y. 420; Ross V. Mather, 51 id. io8 ; Neudecker v. Kohlberg, 81 id. 296 ; Walter v. Bennett, 16 id. 250 : McMichael v, Kilmer, y6 id. 36 ; Degraw v. Elmore, 50 id. i. See Hollister v. Englehart, 7 Hun, 446. See ante, p. 304.) The defendant will not be estop- ped from taking an objection to the right of the plaintiff 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 ; Bruxe v. Burr, 67 id. 237.) If under the issue made by the pleadings competent evidence is received which presents another issue not made by the pleadings, it cannot be used upon the latter issue against the adverse party, even if he does not object to its reception. (Id.; Knapp V. Fowler, 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 different contract or tort, or where a tort is allesed and 313 Trial Practice. In actions for negligence. the proof discloses a contract, or vice versa. In such cases there is not a mere variance, but a failure of proof. (See a«.fe, p. 304.) i3ut 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. (StarTtvjeather v. Qidgley, 7 Hun, 26.) Ko 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 delicto. {Gonaughty v. JVic/iols, 42 N. T. 83 ; Neftel V. Lightstone, 77 id. 96 ; Ledwioh v. MoKim, 53 id. 307 ; Graves v. Waite, 59 id. 156; Ross v. Terry, 63 id. 613 ; Byxlie v. Wood, 24 id. 607 ; Yeeder v. Cooley, 2 Hun, 74 ; Tagman v. NaU Steamship Co., 76 N. Y. 207 ; Austin v. Bawdon, 44 id. 63 ; Shea- kan V. Shaimhan, 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 in 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. Co., 24 JST. 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. Co., 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. liew York Cevi. R. R. (9b., 41 JST. Y. 465 ; Reynolds \-. New Torli Cent. & H. R.R.R. Co., 58 id. 248; Wendell -. Wew York Cent, f^ H. R. R. R. Co., 91 id. 420 ; Hart v. Hudson River Bridge Co., 80 id. 622. But see Smedis v. Brooklyn, etc., R. R. Co., 88 id. 13.) And if this element is wanting in the case, th^ court may nonsuit or set aside a verdict for the plaintiff. {Reynolds v. New York Cent. c& H. R. R. R. Co., 58 N". Y. 248; Davis V. New York Cent. c& //. R. R. R. Co., 47 id. 400 , Cordell V. New York Cent. & H. R. R.R. Co.,1h id. 3S0 ; Gonzales v. New Motion for Nonsuit, Dismissal of Complaint, Etc. 313 No presumption of negligence against either party. York & Harlem R. R. Co,, 50 How, 126, 128 ; Halpin v. Third A'oenue li. H. (Jo., 6 Jouea o^ Dp. l^o.j mere is no presumption of negligence against either party. ( Warner v. New Yorli Cent. R. R. Co~, 44 N. Y. 465.) "^or is tliere any presumption of tlie absence of contributory negligence, growing out of tlie natural instinct to avoid danger and injury, wliicli will take tiie place of proof. ^Ray- noUs V. New York Cent. & 11. R. R. R. Co., 58 IST. Y. 248 ; Cor- ddl V. New Fork Cent. & H. R. R.R. Co., 75 id. 330 ; Warner v. New York 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 v. New York Gent. R. R. Co., 44 oS". Y. 465, 471 ; Johnson v. Hudson River R. R. Co., 20 id. 65 ; Hart V. Hudson River Bridge Go. , 80 id. 622 ; Halpin v. 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 diiec- tion, the plaintiff should be nonsuited. {Cordell v. New York Cent. 06 H R. R. R. Co., 75 N. Y. 330 ; Wendell v. New York Oeni. do H. R. R. R. Co., 91 id. 420, 426 ; Ricemany. Havemeyer, 84 id. 647 ; Dorr v. McCullough, S App. Div. 327; Wiwirowski V. L. S. &■ M. S. R. Co.. 124 N. Y. 420.) On the other hand, it is not enough to authorize a nonsuit tliat 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. (Thurher v. Harleuh Bridge, etc., R. R. Co., 60 N. Y. 326 ; Maker v. Central Park, etc., R. R. Co., 67 id. 53 ; .Beltoa v. Baxter, 58 id. 411 ; Weber v. New York Cent. (& H R. li. R C'^ id. 451; Wendell v. New York Cent. & H. R. R.R. Co.. 91 id. 420, 427 ; Hart v. Hudson River Bridge Co., 80 id. 622^ There 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 314 Trial Practice. Nonsuit upon the ground of contributory negligence. 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 K T. 302 ; Hays v. Miller, TO id. 112, 117 ; Phillips V. Rensselaer <& Saratoga R. R. Co., 49 id. 177; Bnrrows v. Erie Railway Co., 63 id. 556 ; Connelly v. New York Cent. <& H. R. B. -R. Co., 88 id. 346.) P)Ut 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 {Eppeniiorf V. BrooTdyn, etc., R. R. Co., 69 N. Y. 195 ; Morrison v. Erie Rail- way Co., 56 id. 302; Dale v. Broohlyn City, etc., R. R. Co., 1 Hun^ 146; 60 ]Sr. Y. 638; Filer v. New York Cent. R. R. Co., 49 id. 47; Mettlestadt v. Ninth Ave. R. R. Co., 4 Rob. 377) ; or tu cross a rail- road track without looking {MoQ-overn v. Neio Yorlc Cent, da Hud- son River R. R. Co., 67 k. Y. 417; Webber v. New York Cent. & Hudson River R. R. Co., id- 587 ; Brassell r. New York Cent. (& Hudson River R. R. Co., 84 id. 241 ; Leonard v. New York Cent. 332 Trial Practice. Request tfiat the case go to the jury. view of any inferences which a jury might legitimately draw from the; defendant's testimon}' or from the whole of the evidence in the case. {Royce v. Watrous, 7 Daly, 87.) So a direction of a ver- dict for the defendant is in effect a decision that the plaintiff is not entitled to recover upon any finding warranted by the testi- mony. (^Stone V. Flower, 47 N. Y. 566.) 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 impliedly 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 ver- dict 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 the 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. Cockcroft, 90 N. Y. 649; Hagaman v. Burr, 9 Jones & Sp. 423; Leggett v. Hyde, 58 N. Y. 272, 275; Koehler v. Adler, 78 id. 287; Barnes v. Ferine, iz id. 18; Strong v. New York Laundry Manuf. Co., 6 Hun, 528; Thompson v. Simpson, 128 N. Y. 270; Kirtz v. Feck, 113 N. Y. 222; Young v. Roberts, 31 App. Div. 615; Benjamin v, Welch, 73 Hun, 371; Phillips v. Mason, 66 Hun, 580.) In such case a mere exception to the decision of the court, '^tent evidence as to the matter before the taxing officer. (Code of Civ. Pro., § 3248.) If the attornejr 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 ol the c>)urt that there was a good ground for refusing to make the admission. 354 Trial Practice. Motion for an additional allowance. (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 ao- 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. Eule 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 bill of costs and disbursements upon the adverse party wuli 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 VI. TEIAL OE ISSUES OP FACT BY THE COUET OE BY A EEFEEEE. SECTIOJ^ I. OoTUNES OF PkACHCTE ON TkIALS BY THE CoUET WITHOTJT A JuET. 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 {ante, p. 64); the place where and the term at which the trial must be had {ante, p. 5 ) ; the mode of bringing on the cause for trial {ante, p. 196), 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. 232); the proceedings upon the application of either party for the postponement of the trial {amte, p. 225) ; the mode of examining, cross-examining, re-examin- ing and impeaching witnesses {ante, p. 254), 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 witliout 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 jurj^ or, notwithstanding the waiver, may refuse to assent to a trial Avithout a jury ; and unless th« 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 356 Trial Practice. Outlines of practice. jury; or may direct a reference of specific qiiesfions 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.118), 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. 64.) 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 niay, 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, eitlier during the same or at a subse- quent term, and then, upon hearing counsel, render final judgment. {Belmont v. Ponvert, 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. {Chainberlain v. Demp- ccy, 36 K T. 144. But see Code of Civ. Pro., § 777.) ' So where on the trial of a com non law action before a jury, the parties consent that a special verdict shall be taken upon certain questions of fact and that the court shall dispose of the remaining issues and render final judgment in the case, the court may receive the special verdict of the jury and afterward take possession of the whole case and conduct the subsequent proceed- ings precisely the same as upon a trial of the whole issue by the court. (See First Nat. Bank v. Dean, 137 N. Y. 1 10.) 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, varying in number or character according to the nature of the case. Outlines of Practice on Trials Without Jury. 357 Judgment entered upon the decision may be interlocutory or final. 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. The court then takes the papers in the case for further consideration, and makes a written decision at some time within twenty days after the final adjournment of the term where the issue was tried. (Id., § lOio.) The decision will state separately the facts found and conclusions of law, or the grounds of the decision, 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 judg- ment thereon, unless some fact must be ascertained or some act done before such judgment can be entered. The judgment entered upon the decision 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 au 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 riglit 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, it' in favor of the plaintiff, in an action by a joint tenant or tenant in common against liis 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. 358 Trial Practice. Proceedings preliminary to judgment. not a party, who has a lien on the undivided share or interest of any party, unless 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 no reference is necessary as a preliminary to the entry of the interlocutory judgment, or if the 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 proceed to enter the interlocutory judgment. If a further refer- ence 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 judgment. (Code of Civ. Pro., § 1230.) If further pro- ceedings, after entry of the interlocutory judgment, must be taken before the court, or a judge thereof, or a referee, before final judgment can be entered, the unsuccessful party may desire to review the proceedings already had by motion for a new trial, made at a term of the appellate division of the Supreme Court. (Id., § lOOi), or by appeal (Id., § 1349), before such further pro- ceedings are had. The attorney for the successful party should, therefore, cause a copy of the decision, with notice of the entry of the interlocutory 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., § lOOi), or the time within v/nich the party must appeal. (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 order 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 ser- vice, 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 proceed- ings. If the further proceedings are before a referee the matter muit be brought to a hearing, the proofs taken, the account Outlines of Practice on Trials Without Jury. 359 Filing of report. stated, or other matters determined as directed in the judgment 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 jreport 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 hear- ing at any Special Term thereafter on the notice of any party interested therein (Id.), or an application for a new hearing may be made upon alnUavits. (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 tlien 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- sCTibed 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 bo 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 wliich no interlocutory judgment is author- ized or required, final juflgraent is entered upon the decision accord- ing to its direction.s (Id., § 1228), and a copy of the decision and of the judgment, and wril.ten notice of its entry should be served upon the attorney for the unsiicncssfnl party for the purpose of limiting the time for filing exceptions to the decision (Id., -J 994:), and of tak- ing an appeal from the judgment. (Id., § 1351.) The various steps in the trial of a cause by the court, which have been briefly outlined in the foregoing pages, will be considered more in detail in subsequent sections. Tlie proceedings, upon the taxation of costs, are the same whether the action bo tried by the court, by a jury or by a referee, and will be considered 1h another chapter. (See Costs, post,) 360 Trial Practice. Powers of referees. SECTION II. Powers of Referees, and General Practice on a Ref- erence OF all the Issues. The cases in which a reference may be ordered by consent {ante, p. 65,) or against the objections of a party {ante, p. 6y,) the practice upon the appointment of the referee {ante, p. 123,) and the subsequent appointment of a time and place of trial {ante, p. 196,) 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 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 m. ^re 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 subposnaed to attend before a referee so appointed to testify, and, in a proper case, to bring wUh 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 exercMed by the court upon a trial. (Id., §1018.) Tliese provisions Powers of Referees and General pRACXicii. 361 Oath of referee. of the statute overrule or render valueless numerous cases in which the powers of referees upon the trial have been discussed and limited, "Where 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. JBetts, 8 How. 31 ;. Howe V. Muir, 4 id. 252 ; Main v. Pope, IG 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 of those present, at a time and place appointed for the trial, may ad- journ the trial to a future day. (Code of Civ. Pro., § 1026. See, also, Molnroy v. Bertediot, 11 Johns. 402 ; Townsend v. Glens- Falls Ins. Co., 10 Abb. [K S.] 277 ; 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 parlies, whose interests will be affected by tlie 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 ^vritten 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. {Nason v. Ludding- ton, 56 How. 172 ; McQowan 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 ; Katt v. Germania Fire Ins. Co., 2(> 362 Trial Practice, StipuIatioQS as to fees. Hun, 429.) The referee derives his power from the order of the court, and may adjourn the cause, dismiss a complaint as fatally d»- 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. {Nason v. Lvddington, 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 be sworn. [Nason v. Luddington, 56 How. 172. See, also, Whalen v. Board of Supervisors^ 6 id. 278 ; Keator v. Ulster (& Delaware Plarikroad Co., 7 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 can be no waiver by one wao is incapable of giving consent, or by one who is not represented and knows nothing of the irregu- larity. {Nason 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 N. C. 285; Exchange Fire Ins. Co. V. Early, 4 id. 78.) Where the papers are silent as to whether the referee took the official oath, the presumption is that it was taken. Hatfield v. Malcolm, 71 Hun, 51.) 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 com- mencement 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. See First Nat. Bank of Cooperstown v. Tamajo, 17 Hun, 241; "j"] N. Y. 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 attorneys for the several parties have the power to bind their clients by such stipulation or agreement. {Mark V. City of Buffalo, 87 N. Y. 184.) But a stipulation that the referee fix his own fees will not have that effect. {First Nat. Bank of Cooperstown v. Tamajo, 17 Hun, 241; 'j'j N. Y. 476; Chase V. James, i6 Hun, 14; Griggs v. Day, 135 N. Y. 469.) Powers of Referees and General Practice. 363 Judgment for the plaintiff on the pleadings. Judgment for the plaintiff on the pleadings. — If the answer interposed by the defendant does not contain facts sufficient to •constitute a defense and admits all the facts necessary to enable the plaintiff to recover, the plaintiff, before any evidence is offered, may move for judgment on the pleadings, and the ref- eree may make his report directing judgment for the plaintiff. {Schuyler w. Smith, $i N. Y. 309.) The referee may, however, wait until the defendant offers proof, and then, upon the objec- tion 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 connec- tion 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 dis- missed in like manner as upon a trial, at any time before the ■cause has been finally submitted to the referees for their de- cision. In which case the referees shall report according to the fact, and judgment may thereupon be entered by the defendant. (Gen. Rule 30.) If the referee, at the close of the plaintiff's evidence and before the defendant has rested his case, dismisses the plaintiff's complaint on the merits, this is equivalent to granting a nonsuit, and to support the judgment entered thereon the defendant is bound to show that there were no disputed ma- terial questions of fact which, upon a jury trial, would have been required to be submitted to the jury, and that upon the undis- puted evidence he was entitled to judgment. {Myers v. Polhe- mus, Jj Hun, 587; Place v. Hayward. Wj N. Y. 487; Raabe v. Squier, [48 N. Y. 81; Forbes v. Chichester, 125 N. Y. 769; Smith V. Peiott,4^ St. Rep. 242.) The power and the duty to nonsuit, and the cases in which the motion may properly be granted are the same as on a trial by jury. See ante, p. 307.) Where a nonsuit is granted, the plaintiff should except to the decision of the referee in order to be in a position to present the ruling for review. The decision granting the nonsuit must direct the judgment •to be entered, but need not contain any findings of fact. (Code 364 Trial Practice. Adjournment of the trial. of Civ. Pro., § 102 1.) But this was not the practice before the amendment of the section cited. (Gilman v. Prentice, 132 N. Y. 488; Woodv. Lary, 124 N. Y. 83.) 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 sufficient to consti- tute a cause of action ; and, if the motion is well founded, a dis- missal will be proper. {Coffin v. Reynolds, 37 N.Y. 640.) In iuch case no findings of fact are necessary or possible. (See Eaton v. Wells, 88 N. Y. 576; Wood v. Lary, 124 N. Y. 83.) Adjournments of the trial. — Upon the trial of an issue of fact the referee exercises the same power as the court to grant adjournments (Code of Civ. Pro., § 1018), and to impose the pay- ment of costs and disbursements as a condition of granting the adjournment. (Id., § 3255.) Unfortunately, referees seldom impose costs as a condition of an adjournment, or require the parties to make the proof necessary to entitle them to a postpone- ment of the trial. This is in direct violation of section 1018 of the Code, which provides that " the powers conferred by this sec- tion 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. The grant- ing of adjournments while a trial is in progress is, however, largely a matter of discretion, and nothing short of an abuse of that dis- cretion will justify an appellate court in reversing a judgment on account of the refusal of the referee to adjourn the hearing to allow a defendant to procure the attendance of a witness. (Pettee V. Pettee, y/ Hun, 595.) 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, 54N.Y^ 207. See Stephens v. Strong, 8 How. 339; Sage v. Mosher, 17 id. 367; M'Inroy \. Benedict, 11 Johns. 402.) Where the plaintiff,, Powers of Referees and General Practice. 3G5 Amendments. after giving evidence in the case, submits to a nonsuit, the referee has no power to compel the defendant to proceed with proof of a counter-claim set up in the answer. {Albany Brass & Iron Co. v. Hoffman, 30 App. Div. 76.) 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 the 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 Trial Term, and not the power of the court at Special Term. (Chittenango Cotton Co. v. Stewart, 67 Barb. 423.) This power is concurrent but not exclusive. The motion to amend may be made before the referee, or if the party chooses, and the referee adjourns the case, the motion may be made at Special Term. {Bullock v. Bemis, 40 Hun, 623.) If an amend- ment becomei 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. {Chittenango Cot- ton Co. v. Stewart, 67 Barb. 423.) The power to amend the summons, or a 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. {Newman 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 contro- versy cannot be had, the referee should order the cause to stand over for the purpose of allowing the plaintiff 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 necessary party, the referee may dismiss his complaint without prejudice to the right to bring another action. {Peyser v.Wendt, 87 N. Y. 322.) A defendant has the right on a hearing before a referee to with- draw a counter-claim set up in his answer in the same manner 366 Trial Practice. Amendments. tliat the plaintiff may submit to a nonsuit on a trial at the circuit.. {Brown v. Butler, 58 Hun, 511.) So after the evidence is closed the referee may permit the defendant to amend his answer so as to conform to the proofs where such amendment will make no substantial change in the nature of the defense. {McLaughlin v. Webster, 141 N. Y. y6.) He may also allow a plaintiff to amend his complaint by inserting a material allegation, but is not bound to do so. {Barnes v. Brown, 130 N.Y. 372.) So the referee may permit the plaintiff to amend the complaint by striking out aa allegation therein where such amendment does not change the nature of the issue. {Price v. Brown, 98 N. Y. 388.) A referee has no power to amend a complaint on the trial so as to change the cause (A action from one for equitable relief to one for ejectment {Bockes v. Lansing, 74 N, Y. 437), or to allow any otbfir amendment which would substantially change the cause of action or defense. {Joslyn v. Joslyn,g Hun, 388. See Knapp v. Fo7»Ur, 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 Ih the pleadings, though not asked for until the submission of the case, upon the condition that the plaintiff stip- ulate that the defendant recover the cost of the action. {Coates V. Donnell, 16 Jones & Sp. 46.) The power of the referee in res- pect to the terms upon which an amendmeht 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, the referee may- or may not grant it i« his discretion ; and if he grants it he may annex as a cooditjon 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. Rathbun, 75 N. Y. 122.) (As to amendments upon the trial generally, see ante, p 297.} Re-opening case after submission. — The referee may, in his discretion, permit the plaintiff, after the defendant has rested, to re-open the case and give testimony in chief. {Wright v. Reu- sens, 133 N. Y. 298.) So where there is a dispute as to the cor- rectness of the minutes of the referee of the testimony of the Powers of Referees and General Practice. 367 Rulings made after submission of case. defendant, and there is an application to correct the minutes or that the trial be opened, the referee may deny the motion to amend his minutes and grant the motion to open the case on such terms as he deems just. (Page v Methfessel, 71 Hun, 442.) So where the defendants have set up a counter-claim for moneys loaned, the referee may, after the case is closed, open it to allow the defendants to surrender and cancel a note given for such moneys. {Moissen v. Kloster, 24 St. Rep. 553-) Rulings made after submission of case.— Upon trials before referees a practice has grown up, to some extent, of receiving evidence offered under objection and of reserving the decision as to its admissibility until some future time, which is generally the time of making up the report and of explicitly stating in the report the referee's decision upon the question raised. If the leferee, after the case is submitted, overrules the objection and considers the evidence, the party objecting to it is, by this prac- tice, 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 an exception. This practice is not regarded with favor by the courts. {Sharpe v. Freeman, 45 N. Y. 802; Berrian v. Sanford, i Hun, 625; 4 N. Y., Sup. Ct. [T. & C] 655; Clussman v. Merkel, 3 Bdsw. 402; Lathrop v. Bramhall, 5 N. Y. Sup. Ct. [T. & C] 680; 3 Hun, 394; 64 N. Y. 365; Waggoner v. Finch, i N. Y. Sup. Ct. [T. & C] 145; Giltnan V. Healy, 46 Hun, 310.) The party objecting to the evidence offered should insist upon an immediate ruling by the referee, and, if the objection is adverse to him, should take an excep- tion ; or, if the referee declines to rule at all or decides to reserve his decision, an exception should be taken to this ruling. Or- dinarily the reservation of a ruling on the admission or rejection of evidence, if without the consent and against the objection of the party, is a ground for reversal unless the questions reserved are immaterial or of such a character that if decided against the party raising them, the decision would constitute no sufficient ground of error. {Wright v. Reusens, 133 N. Y. 298.) 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 368 Trial Practice. Rulings made after submission of case. question of its admissibility until he makes up his report. {Peck V. Yorks, 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, i Hun, 625; 4 N. Y. Sup. Ct. [T. & C] 655.) But though the party insists that the referee shall decide finally upon the admissibility of the evidence where it is offered, and excepts to the refusal of the referee to then determine whether he will receive or reject it as evidence in the case, such refusal and exception will not necessarily lead to a reversal of the judgment, unless it appears in some 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; Ker slake v. Schoonmaker, 3 N. Y. Sup. Ct. [T. & C] 524; i Hun, 436.) And if the party fails to object to the course of the referee in reserv- ing his decision upon the admissibility of the evidence, he will be deemed to have assented thereto. Clark M.Donaldson, 3 Hun, 224; 5 N. Y. Sup. Ct. [T. & C.J 683; 64 N. Y. 631; Trimmer v. Trimmer, go id. 6715; Holden v. New York & Erie Bank, 72 id. 286; Rogers v. Rogers, 153 N. Y. 343.) Whatever may be the power of the court or referee during the progress of a trial as to striking out evidence which has been •improperly admitted, no such right can exist after a cause has been submitted for decision unless it has been specially reserved. {Bloss v. Morrison, 47 Hun, 218; Blashfield v. Empire State Tel. Co., 71 Hun, 532.) But if the court or referee has, without ob- jection from either party, reserved his ruling upon an objection to evidence until after the close of the trial, this is a virtual consent to a ruling upon the question after the trial, and precludes the parties from afterward questioning the time and manner of the decision. {Rogers v. Rogers, 153 N. Y. 343.) SECTION HI. Objb;ctions to the Admission of Evidence and Excep- tions TO Rulings on the Trial. In enacting the Code the legislature evidently intended to assimilate the practice on trials before single judges without a jury, and by referees, to trials at the Circuit before a jury as far Objections to the Admission of Evidence. 369 ' No distinction between legal and equitable actions. as practicable, and to secure to litigating parties the same rights of exception and review as far as possible. (See Leffler 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.) There is no distinction between legal and equitable actions, or between 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 admission of incompetent evidence ; in any case, an error in receiving such evidence, if properly excepted to, can only be dis- regarded when it can be seen that it could do no harm. (Foote v. Beecher, 78 N. Y. 155.) 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 compe- tent but material, it may have had an influence upon his findings. (Smith V. Smith, i N. Y. Sup. Ct. [T. & C] 6i\ Chandler v. Allen, 20 Hun, 424.) The mode of taking objection to the admission of evidence and exception to rulings on the trial has been considered in the preceding chapter. (See ante, p. 286.) SECTION IV. Bringing in New Parties. In equitable actions. — There is an essential difference between the practice at law and in equity in determining who are proper and necessary parties, and in the procedure adopted in case it should appear upon the trial of a cause that there is an absence of necessary parties defendant. 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 non- suited, or should have a verdict against him. {Webster v. Bond, 9 Hun, 437 ; People v. Albany & Vermont R. R. Co., 15 Hun, 126; Chapman v. Forbes, 123 N.Y. 532; Britton v. Bohde, 85 Hun, 499.) 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 over until the necessary parties are brought in. or at least until the 24 370 Trial Practice. Bringing in new parties. plaintiff has had an opportunity to bring them in. The burden is on the plai.itiff to secure the presence of all necessary parties and if he is unable to do so it is his misfortune. Mahr v. N. U. F. Ins. Soc, 127 N. Y. 452.) If he fails, neglects, or refuses to bring in the necessary parties, as directed by the court or referee after opportunity has been afforded him to do so his complaint will be dismissed without prejudice to his right to bring another action. {Peyser v. Wendt, 87 N. Y. 322.) 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 when a complete determination of the controversy cannot be had without the pres- ence of other parties the court must direct them to be brought in." (Code of Civ. Pro., § 452.) The part of section 452, above quoted, is an almost literal re- enactment of section 122 of the Code of Procedure and is appli- cable to parties in what under the old practice, would have been termed suits in equity, and is not applicable to parties to strictly legal actions. ( Webster v. Bond, g Hun, 437 ; Chapman V. Forbes, 123 N. Y. 532.) The Code provides that if an objection to a defect of parties is not taken by answer or demurrer the defendant is deemed to have waived it. (Code of Civ. Pro., § 499.) Construing this section together with the section above quoted their mean- ing is that a defendant by omitting to take the objection that there is a defect of parties by demurrer or answer waives on his part any objection to the granting of relief on that ground, but when the granting of relief against him would prejudice the rights of others and their rights cannot be saved by the judgment and the controversy cannot be completely determined without their presence, the court must direct them to be made parties before proceeding to judgment. {Osterhoudt v. Board of Super- visors, 98 N. Y. 239.) It was the practice in chancery to permit the objection for defect of parties to be taken by demurrer or answer or at the hearing. Under the Code the court is bound to take the objection when a proper case is presented. (Id., Elias v. Schweyer, 13 App. Div. 336; Thompson v. N. Y. El. R. Co., 16 App. Div. 449; Bear v. American Rapid Tel. Co., 36 Hun, 400.) " When the court directs a new defendant to be brought in, and Bringing in New Parties. JiTl Where defect of parties appears on the trial. 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 com- plaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to per- sonal service, or a substitute for personal service of an original summons, applies to such a supplemental summons. (Code of Civ. Pro., § 453.) Where the defect of parties appears on the trial it is not enough that the trial court directs that the omitted persons be brought in by amendment. Such a direction does not bring them in. {Mahr V. N. U. F. Ins. Soc, 127 N. Y. 452 ; Hood v. Hood, 85 N.Y. 561 . The trial should be suspended to allow the plaintiff an opportu- nity to apply at special term for leave to amend his summons and complaint so as to include the necessary parties, and an opportu- nity to carry into practice the proceedings mentioned in section 453 of the Code above quoted, and upon the further hearing of the cause, if it appears that the plaintiff hits failed or refused to make the application for leave to amend, or to make such amend- ments, the court or referee may dismiss the complaint without prejudice to the right of the plaintiff to bring another action. {^Peyser v. Wendt, 87 N.Y. 322 ; Empire State Savings Bank v. Beard, 81 Hun, 184; Sherman v. Parish, 53 N. Y. 483.) In any event the court or referee should refuse to proceed to a determina- tion of the controversy so as to affect the rights of the omitted parties until the direction to bring them in has been obeyed. {Mahr v. N. U. F. Ins. Soc, 127 N. Y. 452.) When the trial is suspended to allow a new defendant to be brought in, the plaintiff should give notice to the defendants who have appeared in the action of a motion to be made at Special Term for leave to bring in the new defendant, and to file a sup- plemental summons and complaint. Notice to the new defendant is not required. {Ebbets v. Martine, 19 Hun, 294 ; Fisk v. Albany & Susquehanna R. R. Co., 8 Abb. [N. S.J 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 court whenever it is decided upon the trial that it is necessary '61i Trial Practice. On the application of a person not a party. to bring in a new party to have a complete determination of the issues presented. {Ebbets 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 opportu- nity must be given him to answer, or demur as he may be advised. (Ebbets v. Marline, 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. The plaintiff cannot be heard to complain that the court did not exercise the power to direct him to bring in new parties defendant, but instead dismissed his complaint without preju- dice to the right to bring a new action, {Knapp v. McGowan, 96 N. Y. 75.) On the application of a person not a party. — The Code provides that " 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 amendment." (Code of Civ. Pro., § 452.) This part of section 452 of the Code is not like the remainder of the section, limited in its application to equity actions only. But it is operative only where persons not served make the ap- plication in their own behalf, and does not apply where a motion is made to compel the plaintiff to bring in other parties. {Ros- enberg V. Salomon, 144 N. Y. 92.) The right of a person who makes the proper proof to be brought in as a defendant in a case coming within the last para- graph of section 452 of the Code, is absolute and cannot ordinarily be made subject to conditions, such as payment of costs and fees already incurred in the action, or a reference, or short notice of trial. {Lawton v. Lawton, 54 Hun, 415; Uhlfelder v. Tamsen, 15 App. Div. 436. And see Ashlon v. Cily of Rochester, 133 N. Y. 187, 195.) But the conduct of the applicant may be such as to estop him from demanding as an absolute right, free from all terms and conditions, an order making him a party to a pending action. If the applicant delays making his motion until the parties to the action have incurred great expense to no purpose Trial of Specific QutsxiONS of Fact by a Jury. 373 Where an order has been made at Special Term. if the order is made, or if the applicant has failed to record the instrument under which he claims title or interest until after the action has been commenced and has thereby prevented the plaintiff from ascertaining who were necessary or proper parties to the action, his motion should be granted only upon terms. {Wallv. Beach, 20 App. Div. 480.) SECTION V. Trial of Specific Questions of Fact by a Jury. 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. ii?,.) Insome cases this is a matter of right (Code of Civ. Pro., § 970), and in others is a matter of discretion. (Id., §§ 823, 971.) So in all actions of an equitable 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 v. Schoenfeldt, 3 Hun, 692; 6 N. Y. Sup. Ct. [T. & CI 142; O'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 and 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. {Brinckley v. Brinckley, 2 N. Y. Sup. Ct. [T. & C] 501; 56 N. \^. 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 a Trial Term in the usual manner, a jury is impaneled and the trial proceeds as to the questions submitted in the same manner as in ordinary cases. In an equity action the complaint cannot be dismissed on a trial of questions of fact by a jury. (MacNaughton v. Osgood, 114 N. Y. 574; Birdsall V. Patterson, 51 N. Y. 43.) The jury render their verdict or finding in writing, which is filed with the clerk (Code of Civ. Pro., § 11 87), who thereupon makes an entry 374 Trial Practice. Motion for new trial, etc. in his minutes, specifying the time 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.) 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 by the appellate division of the Supreme Court, and that judgment be suspended in the meantime. (Code of Civ. Pro., §§ 999, looo, 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 by the appellate division, 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 (Chapin V. Thompson, 80 N. Y. 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 vendict is against evidence, a case or exceptions must be made, or a case containing exceptions, as the case may require. Tlie 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 provisions of article 3 of title i of chapter 10 of the Code of Civil Procedure, relating to proceedings to review a trial by a jury, are applicable to a 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. 56), 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 admis- sion 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 substantial justice does not require that a new trial should Trial of Specific Questions of Fact by a Jury. 375 The conclusive effect of the findings of the jury depends upon nature of action. 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 submission of specific questions of fact to a jury was a matter of constitutional 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 questions are as con- clusive 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 N.Y. 471; Hegeinan v. Cantrell, 8 Jones & Sp. 381 ; Wallace v. American Linen Thread Co., 16 Hun, 404 ; Brinkley v. Brinkley, 2 N.Y. Sup. Ct. [T. & C] SOI ; Birdsall v. Patterson, 51 N. Y. 43; Snell v. Loucks, 12 Barb. 385 ; Learned v. Tillotson, 97 N. Y. i ; McClave V. Gibb, 157 N. Y. 413, 420; Acker v. Leland, 109 N. Y. 5 ; Ran- dall V. Randall, 1 14 N. Y. 499 ; MacNaughton v. Osgood, 1 14 N.Y. 574.) 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. Brinkley, 2 N.Y. Sup. Ct. [T. & C.J 501; 56 N.Y. 192; Carroll M.Diemel, 95 N. Y. 252; Learned v. Tillotson, 97 N.Y. i; Madison University \. White, 2^, Hun, 490.) This, so far as relates to the question under consideration, was summed up by Chief Justice BronsON, 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 granting or refusing a new trial, are matters resting entirely in the discretion 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 a new trial although there were errors in point of law at the Circuit, and even though dissatisfied with the verdict. He may decree in accordance with the verdict, 376 Trial Practice. Proceedings subsequent to 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. Russell, 2 N. Y. 563 ; 4 How. 213.) In place of the chancellor is now the judge holding the Special Term ; and in the place of the feigned issues is an order for the trial of questions of fact. {Hatch v. Peiignet, 64 Barb. 189, 195.) If the motion for a new trial on the minutes of the court is denied 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. {Chapin v. Thompson, 23 Hun, 12, 15 ; (Code of Civ. Pro., § 1347, subd. 2.) The error, if any, will be corrected on appeal 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; Chapin v. Thompson, 23 Hun, 12, 15 ; Ward\. Warren, 15 id., 600.) Proceedings subsequent to the verdict. — If the questions which have been submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case so that no further facts need be proved for the information of the court, motion may at once be made to the court for judgment. Upon such motion both parties have a right to be heard, and the court may order judgment upon the case as then made, or it may set aside the findings of the jury or use some of them, and it may allow either party to give further evidence. So if the motion for judgment be not at once made ir must be brought on upon notice so that both parties may be heard. (Hammond v. Morgan, loi N. Y. 179 ; Birdsallv. Patterson, 51 N. Y. 43 ; Acker v. Leland, 109 N. Y. 5.) It is only where the findings of the jury and the admissions of the pleadings do not cover the whole case and other issues remain to be tried, that the case must be regularly brought on for a hearing before the court. (Id.; Madison Uni- versity v. White, 25 Hun, 490.) If the questions directed to be tried by a juiy 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 Trial of Specific Questions of Fact by a Jury. d'i'C . . — — i Proceedings subsequent to the verdict. the cause must be regularly brought to trial or hearing at Special Term. Upon this hearing the findings of the jury must be pre- sented to tbe court, and if no motion for a new trial is made and then heard, the trial proceeds as to other questions of fact not admitted 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 introduced 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 cf 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 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 {Vermilyea v. Palmer, 52 N. Y. 471; Hegeman v. Cantrell, 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. {Brown v. Clifford, 7 Lans. 46; Carroll v. Deimel, 95 N. Y. 252.) The facts found by the jury must be approved by the court before they are made the basis of a judg- ment, and if approved, they become, by adoption, the findings of the court. {Vermilyea v. Palmer, 52 N. Y. 471, 475.) The court's decision must be made m writing in the same manner as if there had been no verdict of the jury on the issue. {Birdsall v. Patterson, 51 N. Y. 43,50; Carroll v. Deimel, 95 N. Y. 252; Acker V. Leland, 109 N. Y. 5; MacNaughton v. Osgood, 114 N. Y. 574.) If the court adopts the finding of the jury and on an appeal from the judgment a new trial is ordered by the appellate court, the order settling issues, the evidence taken upon the trial before the jury, and the verdict of the jury may be received in evidence 378 Trial Practice. Reference of the remaining issues. on the new trial. The granting of a new trial by the appellate court does not so far nullify the verdict rendered upon the issues found as to preclude the court from making use of it upon the retrial. {Mc Clave v. Gibb, 157 N. Y. 413.) Reference of the remaining issues. — If, after the special find- ings of the jury have been entered in the minutes, the court de- cides to refer the remaining issues, and the case is one where a reference may be ordered, or the parties consent to a reference {See ante, p. 65), 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. 195), and may then bring the cause to a hearing by serving the usual notice. {Ante, p. 196.) At the time and place appointed the referee will proceed to hear and determine the remaining issues as if they were the only questions 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 to the witnesses as they are produced before him ; rule upon questions of evidence raised by the parties, noting the objections and exceptions, if any ; and finally render his report, stating separately his findings of law and fact or the grounds of his decision. (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 : I. 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 determined 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. Trial of Specific Questions of Fact by Referee. 379 Power to order a compulsory reference. 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 VI. Trial of Specific Questions of Fact by a Referee. 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.) It has been held that this provision of the Code confers upon the court the power to refer one or more specific questions of fact, not to determine, but to ■report upon for the information of the court, and that the Special Term is not bound by any ruling or finding of the referee, but may adopt his findings or make new ones. {Drexelv. Pease, 129 N. Y. 96, 104. See Thurber v. CJiainbers, 4 Hun, 721.) But it has also been held that this provision of the Code confers no power to order a reference for the purpose of taking testimony, but only to try and determine or to find some fact involved in the issue of a referable action. {Doyle v . Metropolitan El. Ry Co., 136 N. Y. 505. And see Crumble v. Manhattan El. R. Co., 83 Hun, I.) The Constitution provides that " the testimony in equity cases shall be taken in like manner as in cases at law " (Const. Art. VI., § 3), and the power of the legislature to authorize the courts to direct references for the purpose of taking testimony has been somewhat discussed, but has not been definitely deter- mined. (See Doyle v. Metropolitan El. Ry. Co., 136 N. Y. 505, 508, 509.) A referee may overrule objections to his power to determine the issues between the parties, so long as the order of reference remains in force (Mutual Life Ins. Co. v. Cromwell, 32 St. Rep. 376), and upon the same principle it may be allowable to con- sider the practice upon a reference under the last clause of sec- tion 1013 of the Code so long as the statute remains unrepealed and the courts have not declared it to be unconstitutional. In equitable actions, instead of sending specific questions of iact to a jury for trial, the court may, by consent of parties, 380 Trial Practice. Duty of refei«e. 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 controversy 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 conclusions of fact. After the order of reference is made and entered, a certified copy may be served upon the referee, and an appointment ob- tained of the time and place of hearing. The usual notice of hearing should then be given by the party bringing on the refer- ence. 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 prescribed by law. (Id y 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 evidence; that is, he should state his findings of fact in the same manner 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 otherwise 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- report upon one or moVe specific questions of fact involved in the issue, a motion for a new hearing may be made at a Speciali Trial of Specific Questions of Fact bv Referee. 381 Disposition of the remaining issues. Term, at any time before the hearing of a motion for a final judg- ment, or the trial of the remaining issues of fact. The motion must be made upon affidavits unless the court, or a judge thereof, directs a case to be prepared and settled. (Code of Civ. Pro., § 1004; Compare Gen. Rules, 31, 32.) The motion should be made upon the usual notice. The affi- davits 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 motions for a new trial. Disposition of the 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 neces- sary 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 requires. (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 judg- ment must be made upon the verdict and the report. (Code of Civ. Pro., § 1014 ) Judgment must be taken upon the applica- tion of either party, as prescribed in section 122 1 of the Code. (Id., § 1226.) As a party has had ample opportunity to redress any error committed by the referee by motion for a new hearing, the find- ings 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 questions 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 disposition of the case as justice requires. (See Thurber v. Chambers, 4 Hun, 721; 66 N. Y. 42; Marshall v. Meech, 51 id. 140.) 382 Trial Practice. Requests to find facts or conclusions of law. SECTION VII. Requests to Find Facts or Conclusions of Law. Formerly the attorney for a party to an action triable before the court or a referee Riight submit a written statement of the facts and conclusions of law which he desired the court or referee to find, and obtain a ruling- thereon by way of findings or refusals to find. If the court or referee refused to make any finding what- ever upon a question of fact upon which a finding had been requested, or found a fact without any evidence to sustain it, this was deemed a ruling upon a question of law, subject to exception and review. The section of the Code (§ 1023) authorizing an attorney to submit requests for findings of facts or conclusions of law has been repealed (Laws of 1894, chap. 688), and such requests, if made^ are no longer recognized as a part of the authorized procedure in an action and may be disregarded by the court or referee. (See Lazarus v. Metropolitan El. Ry. Co., 145 N. Y. 581 ; Zorkowski V. Astor, 13 Misc. 507.) SECTION VIII. Decision of the Court or Report of the Referee. " The decision of the court or the report of a referee upon the trial of the whole issues of fact, may state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, or the court or referee may file a decision stating concisely the grounds upon which the issues have been decided and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll. 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 desig- nate the party to whom the costs to be taxed are awarded. Whenever judgment is entered on a decision which does not state separately the facts found, the defeated party may file an exception to such decision, in which cage, on an appeal from the judgment entered thereon upon a case containing exceptions, the appellate division of the Supreme Court shall review all questions Decision of the Court or Report of Referee. 383 Findings of fact and conclusions of law may still be made. of fact and of the law, and may either modify or affirm the judg- ment or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant." (Code of Civ. Pro., § I022.) Prior to the amendment of the section above quoted in 1894 and 1895, findings of fact and conclusions of law were necessary in every case tried by the court or a referee where any evidence was given upon the trial. {Wood v. Larj/, 124 N.Y. 83; Wright v. Chapin, 74 Hun, 521 ; Robbins v. Mount, 55 Hun, 80 ; Maicas v. Leony, 50 Hun, 178.) Now it is sufficient for the court to " file a decision stating concisely the grounds upon which the issues have been decided." Findings of fact and conclusions of law may still be made {Walrath v. Abbott, 85 Hun, 181), and a party may by excepting to the conclusions of law raise the question whether such conclusions are justified by the findings of fact. If no such findings are made but a decision is filed stating the grounds of decision, a single exception to the decision is sufficient to bring up for review all questions of fact and of law. {Matter of Health Department v. Weeks, 22 App. Div. 110.) Prior to the amendment of this section the language of the statute was mandatory where now it is permissive ; but it is not to be assumed from this change that the decision or report can dispense with both the statement of the findings of fact and con- clusions of law and the concise statement of the grounds upon which the issues have been decided. One or the other of these methods of procedure must still be adopted, and a mere opinion by the court or referee cannot be regarded as the equivalent of the findings or formal decision contemplated by the Code as the basis of the judgment on the trial of the whole issues of fact by the court or referee. {Hall \r. Beston, 13 App. Div. 116. And see, McManus v. Palmer, 13 App. Div. 443; Baker v. Moore, 88 Hun, 458 ; Shaffer v. Martin, 20 App. Div. 304.) The findings of fact or conclusions of law. — Where the court or referee adopts the practice in force prior to the amend- ment before mentioned, the report or decision should contain a statement of facts sufficient 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 deter- 384 Trial Practice. The findings of fact or conclusions of law. mination. {VanSlyke v. Hyatt, 46 N. Y. 259; Bishop v. Empire Transp. Co., 5 Jones & Sp. 12, 15 ; Rogers v. Beard, 20 How. 282; Tomlinson v. Mayor, 23 How. 452.) It is not sufficient that the report or decision contains all the conclusions of law necessary to support the judgment if there is an absence of facts to support the conclusions. (Robbins v. Mount, 55 Hun, 80; Jarvis v.Jarvis, 66 Barb. 331.) Nor is it sufficient to report the evidence without finding the fact established by the evidence. {Jarvis v. Jarvis, 66 Barb. 331. But a statement of a conclusion of fact is sufficient with- out 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 Dal>, 44 ; Avery v. Foley, 4 Hun, 415 ; Lane v. Borst, 5 Rob. 609.) Thus, a finding that a particular act has been performed is sufficient without setting forth the particular acts done by way of per- formance. {Sermont v. Baetjer, 49 Barb. 362) And a Ceding that there is a gross sum due under a written instrument is sufficient without stating specifically the several items which go to make up such sum. {Sldenherg v. Ely, 90 N". Y. 257 ; 11 Abb. N. ■C. 354. See Smith v. Ooe, 29 N. Y. 666.) Immaterial facts, jnerely of a negative character, and not necessary to sustain tlie con- clu&'ons of law, need not be found {Mo Andrew v. Whitlock, 2 Sweeny, 623 ; Nelson v. Ingersoll, 27 How. 1 ; Sermont v. Baetjer, 4:9 Barb. 362 ; Patterson v. Graves, 11 How. 91) ; Sor 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. Eaddi&, 4 Abb. K. S. 393, 395) ; audit would be error to tind 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 efEect as the decision or report ; and the legal conclu- sions found are the same as the decision upon the law which the Cir- r.uit judge would have stated to the jury, hypothetically, upon the same facts upon the trial of the cause at the Circuit. {Leffler v. Field, 33 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 Ualy,44),and issues upon which there is no evidence need not De Decision of the Court or Report of Referee. 38a Qaestions of fact not arising upon tbe issnes need not be passed upon. 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 conflicting as to leave the mind of the court or referee in doubt, he should find the facts adversely to the partx 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 imphcation from the rest of the report, it may be held suffi- cient. {Patterson v. Graves, 11 How. 91.) So in an action fo^- 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 tlie plaintiff guilty of the adultery as charged in the answer, and directs a dismissal of the complaint, is a sufficient compliance with the statute, although it does not, literally/ speaking, contain a statement of the facts found. {Pollock v. Pollock, 71 N. Y. 137.) So where a finding of fact that the defendant was guilty of negligence is necessary to uphold a judgment, a finding to that effect, included in the conclusions of law, may be held sufficient. {Sherman v. Hudson River R. R. Co., 64 N. Y. 254.) Where findings of fact are designated in the report or decision as c )n- clusions of law, they will nevertheless for the purpose of uphold- ing the judgment be given the same effect on an appeal as if they were embraced in and designated as findings of fact. {Berger V. Varrelmann, 127 N. Y. 281; Parker v. Baxter. 86 N. Y. 586; Adams v. Fitzpatrick, 125 N. Y, 124; Christopher St, R Co. v. Twenty-third St. R. Co., 149 N. Y. 51.) 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 ougnt 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. Rowley, 66 Barb. 502.) The statement of the grounds of the decision.— The precise nature of the decision stating the grounds upon which the issues 25 286 Trial Pkactice. Statement of the grounds of decision. have been decided which may take the place of findings of fact and conclusions of law does not seem to have been clearly defined by the authorities. It may be assumed that the legislature in- tended that the two methods authorized of presenting the deter- mination of the court or referee should differ in substance and not in mere matters of form. Cases may arise in which a concise statement of the grounds upon which the issues have been decided would cover substantially the same ground as a formal finding of facts and conclusions of law, and in such case the choice of methods of announcing the determination of the controversy would be a matter of taste and form. On the other hand a statement of the manner in which a single controlling fact has been determined may present a concise statement of the grounds upon which the issues have been decided as effectually as a mass of formal findings of fact and legal conclusions. Thus, in an action for divorce on the ground of adultery, where a counter- charge of adultery is set up in the answer, a statement by the court or referee that he finds the plaintiff guilty of adultery as charged in the answer, and that the complaint be dismissed, is a concise statement of the grounds upon which the issues have been decided, and is as effectual to present the whole case for review as findings covering each allegation in the pleadings from the allegation of the marriage of the parties to the last act of adultery charged. The repeal of the section of the Code allowing attorneys to present requests for findings of fact or conclusions of law and the amendment of the section making it obligatory upon the court or referee to make such findings, was to remedy the prac- tice, which had grown into an abuse, of asking courts and ref- erees to pass on evidentiary facts, on facts simply relevant to the issue, instead of on the facts in issue. It was not intended to relieve the trial courts from deciding the issues of fact and law upon the existence of which the right or liability of the litigants depends, or from disclosing how those issues were decided, or to shift this burden upon the appellate court. {Shaffer v. Martin, 20 App. Div. 304.) It was not intended that a mere opinion of the trial judge, which simply discusses the questions of law in- volved, should be equivalent to a decision stating the grounds upon which the issues have been decided {Hall v. Beston, 13 Decision of the Court or Repori ob Referee. 887 ■ Directing the judgment and awarding costs. App. Div. Il6), though it has been said that the grounds of de- cision are but the reasons which actuated the court in deciding as it did, and that these reasons may be statements of facts, gen- . eral or partial, or they may be argumentative suggestions, or mere statements of the trial judge's view of the law. (Matter of Health Department v. Weeks, 22 App. Div. no.) A decision stating concisely the grounds upon which the issues have been decided, without stating in detail the facts found, is tantamount to a general verdict of a jury. (Id.; Amherst Col- lege V. Ritch, 1.51 N. Y. 320.) Directing the juogment and awarding costs. — Whatever form the decision of the court or referee may take upon the trial of the whole issues of fact, the decision must direct the judgment to be entered thereon, and in .an action where the costs are in the discretion of the court, must award or deny costs, and if it awards costs, it must designate the party to whom the costs to be taxed are awarded. (Code of Civ. Pro.,§ 1022.) In an action in equity a decision containing no direction for judgment other than the words " Judgment for the defendants, with costs," is not sufficient to authorize the entry of judgment. (Reynolds v. Aitna Life Ins. Co., 6 App. Div. 254.) So the de- claration at the epd of an opinion to the effect that the plain- tiffs are entitled to judgment for an amount specified is insuffi- cient as a direction for the entry of judgment. (Hall v. Beston, 13 App. Div. 116.) Requisites of the decision or report in particular cases. — Where double, treble or other increased damages are given by statute, 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 arise in the 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 ref- eree may make a computation, or an assessment, or take an ac- count or proof of a fact for the purpose of enabling him to 388 Trial Practice. In matrimonial actions, ejectment, or replevin. award the proper judgment, cr of enabling 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 inquiry. (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 proceed- ings 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 distinction 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. {McCleary v. McCleary, 30 Hun, 154. See Schroeter v. Schroeter, 23 id. 230; Sullivan V. Sullivan, 52 How. 453; Ryerson v. Ryerson, 55 Hun, 191; Ross V. Ross, 31 Hun, 140; Rule 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., § 15 19.) In an action of replevin, the report or decision must fix the damages, 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 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 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 : 2. Where the plaintiff is the general owner of the chattel, but the defendant had a special property therein, and the value of the Decision of the Court or Report of Referee. 389 Making and filing the decision. 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, 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 dis- tinct 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. — When a case tried before the court has been finally submitted, the next step is to make and file the decision. The decision is not always drafted by the court. It has been the usual practice, especially in cases where the find- ings are long, for the justice who tried the cause, to furnish the attorney for the successful party with a brief minute of his deci- sion, 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 personally 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 be 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., § loio.) The re- 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 thequalification thatnootherdispositionismadeof thecase,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 N. Y. 192.) 390 Trial Practice. Remedy for failure to file the decision. Eemedy for failure to file the decision. — The Code provides that iu case the written decision of the court is not tiled 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 nec^sarily 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 his 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 tliat the search was made in the proper oifice ; 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. If judgment has been entered in the absence of any decision the remedy of the party is not to move to set aside the judg- ment, but to move for a new trial under section loio. {Eaton v. Wells, 82 N. Y. 576,) This section will afford the defeated party with ample opportunity for protection against the omission of the court. {Wood\. Lary, 124 N. Y. 83. 87.) 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 Decision of the Court or Report of Referee. 391 Remedy for defective decision. reason for making an order for a new trial, and no order to that effect is required or authorized by the Code in such case. (See Code of Civ. Pro., § loio) The failure to file the decision within the specified time does not impair the validity of a de- cision subsequently filed (See Stewart v. Slater, 6 Duer, 85, 102; Lewis V. Jones, 13 Abb. 427), and the court must deny the mo- tion. 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 statute had expired at the time the notice of motion was given, the court must make an order for a new trial, either abso- lutely, or unless it is filed within a time specified in the order. (Code of Civ. Pro., § loio.) This order should be entered, and a certified copy should be served upon the attorney for the ad- verse party. But, notwithstanding the mandatory language of the section, a party may, by inexcusable delay in making the motion, deprive himself of the right to any relief under it. [Fleet v. Kalbfleisch, 43 Hun, 443.) If an appeal is taken from a judgment entered upon a trial before the court without a jury, and the record fails to disclose any decision by the court, the judgment may be reversed and the case sent back for a new trial {Lemien v. Lemien, 16 App. Div. 264), or the judgment may be set aside and vacated, and the case be remanded to the Special Term for decision of the court who tried it {Reynolds v. ^tna Life Ins. Co., 6 App. Div. 254; Hall V. Beston, 13 App. Div. 116; Putzel v. Schulhoff, 25 Jones & Sp. 505; Classon v. Baldwin, 36 St. Rep. 982; Shaffer v. Martin, 20 App. Div. 304); or the appeal may be dismissed with leave to either party to apply at Special T rm for such relief as will enable a proper decision to be filed and judgment entered (See McManus v. Palmer, 13 App. Div. 443); or the appellate court may refuse to consider the appeal and leave the parties to such remedy as the practice affords. {Village of Palmyra v. Wynkoop, 53 Hun, 82.) Remedy for defective decision. — The remedy given by sec- tion loiO of the Code is available only where no decision has been filed. If any decision has been filed, however defective it may be, the remedy is not under that section. 392 Trial Practice. Making and signing the report of the referee. If the decision awards costs and does not designate the party to whom costs to be taxed are awarded, and judgment has been entered upon the decision, the remedy is by way of motion at Special Term to vacace and set aside the judgment as irregular and unauthorized, and to restore the cause to the calendar for trial. {Reynolds v. ^tna Life Ins. Co., 6 App. Div. 254.) Where a question of fact covering the whole case in an equity action has been tried by a jury, and the trial court has adopted the findings of the jury and directed judgment, but has failed to make a formal findings of fact and law, the remedy, if any, for the irregularity is by motion and not by appeal from the judgment entered. {Hooker v. City of Rochester, 126 N. Y. 635.) Making and signing 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 preparatory 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 ques- tions of law and fact to be embodied in their report. (Townsend V. Glens Falls Ins. Co., 10 Abb. [N. S.] 277; i Jones & Sp. 130.) A majority of the referees may sign the report. (Code of Civ. Pro., § 1026.) But such signing must be the result of an agree- ment 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 re- port by separately signing one, drawn by the successful party, without further consultation together in regard to it. {Townsend V. Glens Falls Ins. Co., 10 Abb. [N. S.J 277; i Jones & Sp. 130.) But where, upon a conference, a majority of the referees 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. ( Clark v. Frazer. I How. 98.) Filingor Delivery of the Beport< — The Code provides that upon the trial by a referee of an issue of fact, or an issue of law, or where Decision or the Court or Report of Referee. 393. Filing or delivery of the report. 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 Bubmitted ; 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 thereupon the action shall pro- ceed as though no reference had been ordered, and the referees shall not in such case be entitled to auy 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 sliould 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 referee, to take up the report and pay to the referee his fees. {Richards v. Allen, 11 N. Y. Leg. Obs. 159.) It was also held irregular for the referee to deliver duphcate reports to both parties. (Currie v. Gnwlcs, 7 Pob. 3.) But it was dso held that where the referee had given notice to the attorneys for both parties that the report was ready for delivery and that ii was in favor of the plaintifi, either party could at any time there- after take it up. (TFafers V. xSAej^Aert^, 14 Han, 223.) It was also held that where the report was in favor of the defendant and he de- chned to take it up and pay to the referee his fees, the plaintiff might have an order directing the defendant to file the report within a time specified and enter up judgment tiiereon, or in default tliereof that the plaintiff might do so without costs. (See Richmond v. Hamilton, 9 AbV. 7^., note.] 394 Trial Practice. Filing or delivery of the report* The proper practice is for the referee to refuse to hear and deter- mine the actiou 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 cither file it with the clerk or deliver it to the party in whose favor it is made "Ivitbia 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 offer to deliver it on payment of his fees. The referee is not bound to deliver his report until 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. ( Oeib 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. ; Perlcins 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 N. T. 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 sisty 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., § 122S.) 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 with the testimony before any further proceedings can be liased thereon. (See Gen. Rule 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 Decision of the Court or Report of Referee. 395 Termnating the reference for a failure to file or deliver the report. proceeds thereafter as if the reference had not been directed, and tho referee forfdts his right to any fees. \_Oode 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 ease. {G-regory v. Cryder, 10 Abb. [JM. S.J 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 case 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. 132.) 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 snlimitted at the date of the reargu- ment. {Leitch v. Brotherson, 25 How. 407 ; 16 Abb. 384.) So if the parties sign a written request for the amendment of the report on the question of costs and procure the entry of an order sending the case back to the referee to make a supplementary report on that question, this will operate as a waiver of the statutory limit as to the time of filing the original report and defeat an attempt to terminate the reference for failing to deliver such report within the sixty days. {Merritt v. Merritt, 18 App. Div. 313.) So if within the sixty days following the submission -of the case the referee gives notice to the attorneys for the parties that he has made his report in favor of the plainti£F and holds it ready for delivery, and the plaintiff's attorney acting upon the request of the defendant's attorney that no further action be taken pending negotiations for a settlement, delays the taking up of the report until after the expiration of the sixty days, the defendant will not be allowed to take advantage of his own acts and terminate the reference. {Dwyer v. Hoffman, 39 Hun, 360.) So where there has been a second submission of the case to referees in consequence of the death of one referee pend- ing a decision, the time limited for filing the report runs from the several submissions. {Berls v. Metropolitan El. R. Co., 37 St. Rep. 608.) If briefs are to be submitted, there is no sub- mission until the time to hand in briefs is passed, and if the time to submit briefs has been extended by the referee, the time ior the delivery of the report commences to run from the 396 Trial Practice. Terminating the reference for a failure to file or deliver the report. expiration of the time of the extension. {^Morrison v. Lawrence, 2 How. N. S. 72.) 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, indefinitely 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. {Ballouv. Parsons, 52 How. 164; 6^ Barb. 19; 55 N. Y. 673; Livingston v. Gidney, 25 How. i. See Foster v. Bryan, 16 Abb. 396; 26 How. 164; Theiesselin v. Rossett, 3 Abb. [N. S.J 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. Gryder, 10 Abb. [N. S.] 289.) And where the time for the decision of the issues has been extended for a definite time, this does not operate to extend the time in- definitely, or put it beyond the power of either party to termin- ate the reference in case no decision is made within the time stipulated. {Patterson v. Knapp, 83 Hun, 492.) It was formerly held that where a referee had his report ready for delivery within the statutory time and offered to deliver it on payment of his legal fees, the ofTer was a sufficient delivery to bar the right to terminate the reference. (Waters \. Shepherd, 14 Hun, 223; Quackenbush v. Johnson, 55 How. 94; Cornelius V.Barton, 12 Week. Dig. 2ifi; Morrison \. Lawrence, 2 How. N. S. 72 ; Thornton v. Thornton, 66 How. 1 19. And, see, Geih v. Topping, 83 N. Y. 46, 48.) But these decisions have been over- ruled upon that point, and it must be deemed settled law that an offer by a referee to deliver his report to the successful party on payment of his fees is not equivalent to delivery and that to pre- vent a termination of the reference by notice under section 1019 of the Code, the report must be actually delivered to the attor- ney of one of the parties or filed with the clerk within sixty days from the time the cause was finally submitted. {Little v. Lynch, 99 N. Y. 112; Phipps V. Carman, 23 Hun, 150; 84 N. Y. 650 ;. Bishop V. Bishop, 30 Abb. N. C. 296.) Decision of the Court or Report of Referee. 397 Notice to terminate reference. Allowing the attorney for one of the parties to receive and read the report is not necessarily a delivery of the report. (Birdseye v. Goddard, ly Week. Dig. 228.) The delivery must be unqualified. The delivery of the report to the attorney for one of the parties upon the express condition that it should not be filed until the referee's fees have been paid is not such a delivery as will defeat the right to terminate the reference. {Douglas v. Smith, 65 Hun, II.) But an unqualified delivery or filing of a document dispos- ing of the issues in the action and stating the reason for such dis- position has been held to be sufficient as a report to bar the right to terminate the reference by notice under section 1019 of the Code, if such filing or delivery was within sixty days from the submission of the action, although such document contained no findings of fact, was imperfect, and an insufficient foundation for a judgment. {Tallmadge v. Lounsbury, 36 St. Rep. 684; 126 N. Y. 655.) The mode prescribed by the statute for terminating the refer- ence is the service upon the adverse party of a notice of an elec- tion to end the reference. The form of the notice is not pres- <:ribed by statute, and therefore any notice distinctly giving the opposite party information that the party serving the notice has elected to end the reference is sufficient. {Gregory v. Cryder, 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 ref- eree thereafter to make or deliver a report is terminated ; and if he subsequently files or delivers a report, his act will be without authority of law and void, and all proceedings by or before him are nullities. {Gregory v. Cryder, 10 Abb. [N. S."] 289 ; Niles v. Maynard, 28 How. 390. See Livingston v. Gidney, 25 id. i.) The court has no power to render such subsequent proceedings valid by an order enlarging the time for filing or delivering the report, or otherwise. {Gregory v. Cryder, 10 Abb. [N. S.] 289. Contra: Halsey v. Carter, 6 Rob. 1535.) ^ut if the report is filed or deliv- ered before the notice is given, it is valid although the sixty days have expired. {Foster v. Bryan, 16 Abb. 396; 26 How. 164; Mantles v. Myle, id. 409; O' Neil v. Howe, 31 St. Rep. 272.) 338 Trial Practice. Death of party before decision or report. 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 deliver 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. Death of party before decision or report. — The death of a party after a verdict, report, or decision, does not prevent the entry of final judgment. (Code of Civ. Pro., §§ 763, 764.) But the entry of a judgment against a party who dies before a verdict, report, or decision, is actually rendered against him is unauthor- ized, and a verdict, report, or decision, so entered is absolutely void (Id. § 765,) as to the deceased party and to all the parties whose interests would be affected by the determination of his rights or obligations, but valid as to the living parties if it can be and is so made as not to affect the rights, obligations, acts or interests of the deceased party. (^Lemon v. Smith, 20 App. Div. 523-) Correction of the report or decision.— The judicial function of a referee ceases when he has actually decided the case, signed the report embodying such decision, and notified the parties that the report is ready for delivery. {Craig v. Craig, 66 Hun, 452 ; Quackenbush v. Johnson, 55 How. 94; Walters v. Shepherd, 14 Hun, 223 ; Ayrault v. Sackett, 17 How. S07.) After the referee has completed his judicial duties in reference to the issues sub- Decision of the Court or Report of Referee. 329^ Correction of the report or decision. mitted he cannot proceed further in taking testimony or hearing argument of counsel looking to, or which might result in a change of decision. That power has passed from him, and the Special Term cannot restore it, much less compel its exercise. {Craig v. Craig, 66 Hun, 452 ; McCreadyv. Farmers' Loan &■ Trust Co.,7q Hun, 241.) In case of a clerical error, technical omiss on or inad- vertence, a report, even after delivery, may be sent back to the referee for correction or to supply the omission. But the prac- tice is not favored by the courts and will be resorted to only when the propriety and necessity of such action is clear, and never to reinvest the referee with judicial functions touching the case theretofore submitted for his decision. {First Nat. Bank of West Troy v. Levy, 41 Hun, 461.) A trial court or referee has no power, at the request of a party, to find facts not within the decision signed. {O'Brien v. Buffalo Traction Co., 31 App. Div. 632.) Where the referee in his report in an equity case has denied costs or has made no findings in respect thereto and the report has been filed or delivered, no change can be made therein allow- ing costs to either party. {Craig v. Craig, 66 Hun, 452; First Nat. Bank of West Troy v. Levy, 41 Hun, 461.) So where the referee has failed to award costs the court at Special Term has no power to make the award. {Nassau Bank v. National Bank, 32 App. Div. 268 ; Kennedy v. McKone, 10 App. Div. 97.) The court has power to require a referee to comply with the requirements of the Code in regard to including the findings of fact or law, or a statement of the ground of his decision in his report, and' to require him to make his findings sufficiently definite to raise the question presented on appeal. (Fairman v. Brush, 60 Hun, 442; Schultheis v. Mclnerny, 13 N. Y. Sup. 684; Baker v. Moore, 88 Hun, 458.) If the report of the referee contains conclusions of law and ■ directs judgment accordingly, the deficiencies or errors of the judgment so to be entered cannot be corrected before judgment by an order for a further direction of judgment. The remedy, if any, is by entry of judgment in accordance with the findings and an appeal from the judgment so entered. {Huffman v. Beever, 6q Hun, 557.) The findings which a referee may be required to incorporate 400 Trial Practice. Construction of the report or decision. in his report after delivery or filing are such as were actually found by him before reporting, but were omitted from his re- port. He cannot be required to insert new findings. {Shea v. Cornish, 29 Abb., N. C. 289. See Gardiner v. Schwab, 34 Hun, 582). Construction of the report or decision. — In construing a report 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 con- trolled by a special finding of fact. {Bennett v. Buchan, "jG N. Y. 386; Phelps v. Vischer, 50 id. 69; Lake Shore Nat. Bank v. Butler Colliery Co., 51 Hun, 63.) It is a general rule that the appellate court will presume, in support of a judgment rendered on a trial before a court or ref- eree, that material facts appearing in the case, not embraced in the express findings, were, nevertheless, found and considered by the trial court. {Grant \. Morse, 22 N. Y. 323; Hays w. Miller, 70 id. 112; Meyer v. Lathrop; 73 id. 315; Rider v. Powell, 28 id. 310; Phillip V. Gallant, 62 id. 256; Vernol v. Vernol, 63 id. 45; Parker v. Baxter, 86 id. 586.) But this rule applies only to such facts as. being found, would tend to support the special findings, and does not apply to inconsistent facts, not conclusively established. {Armstrong V. Du Bois, go N. Y. 95.) It applies only where it appears from the case that such additional findings would have been warranted by the evidence. {Oberlander v. Spiess, 45 N. Y. (I75.) If the case does not contain the evidence, but the findings of fact only, the appellate court will assume that there was no evidence from which any other facts could be found ; and if the facts found are insufficient to support the conclusions of law, and such conclusions have been excepted to, the judgment cannot be sustained. {Stoddard v. Whiting, 46 N. Y. 627; Rochester Lan- tern Co. V. Stiles & Parker Press C(?., 1 3 5 N. Y. 209. ) On the other hand, on an appeal from a judgment entered upon a ireport or decision which does not contain separate findings of fact and conclusions of law, but contains instead a concise statement of the grounds of decision, if the case does not con- tain any of the evidence given upon the trial but merely the pleadings, decision, exceptions thereto and judgment, the appel- Decision of the Court or Report of Referee. 401 Conclusiveness of the findings. late court may uphold the judgment, although the grounds of decision specified are insufficient, and may assume that the decision was rendered upon adequate proof of every essential fact alleged in the complaint. The brief decision is equivalent to the general verdict of a jury and entitled to the same pre- sumptions in its support. (Matter of Health Department v. Weeks, 22 App. Div. i lO.) Where findings of fact are contra- dictory, the findings most favorable to the defeated party will be regarded in aid of his exceptions, and the unfavorable and incon- sistent findings will be disregarded. {Bonnell v. Griswold, 39 N. Y. 122; Schwingerv. Raymond, 83 id. 192.) If the findings are ambiguous, 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. {Ser- inont v. Baetjer, 49 Barb. 362; Nelson v. Ingersoll, 27 How. i ; Ferine v. Hotchkiss, 2 Lans. 416; McAndrew v. Whitlock, 2 , Sweeny, 623; Manley v. Insurance Co. of North Am.erica, i 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. 1 19.) But facts found by the trial court or referee and stated outside of the signed decision which are inconsistent with the facts admitted in the pleadings and those found in the signed decision will be disregarded on appeal. (O'Brien v. Buffalo Traction Co., 31 App. Div. 632.) Conclusiveness of the findings. — Where the only issue in- volved 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. (Cod if Civ. Pro., § 1228.) A finding by the court or referee upon a question of fact upon which the evidence is conflicting is con- clusive. (Monell V. Marshall, 75 How. 425 ; Arnoux v. Homans, id. 427; Fellows v. Northrup, 39 N, Y. 119; Van Ness v. Bush, 22 26 402 Trial Practice. Setting aside the report of a referee. How. 481; Russell v. Burton, 66 Barb. 539; Ball v. Loomis, 29 N. Y. 412; Woodruff V. McGrath,i2 id. 255; Westerloo v.DeWitt, 36 id. 340.) The decisions of the referee upon questions of fact are considered conclusive to the same extent as the verdict of a jury, and will not be disturbed except where they are very clearly against evidence or are unsupported by evidence {Sinclair v. TaUmadge, 35 Barb. 602; Russell v. Burton, 66 id. 539; Hoagland V. Wight, 20 How. 70; 7 Bosw. 394); or, unless the finding is so flagrantly unjust as to show partiality, corruption, or incom- petency, on the part of the referee. {Howell v. Biddlecom, 52 Barb. 131.) But while the report of a referee will not, as a gen- eral rule, be disturbed if there is evidence which may be said fairly to sustain it, even though there is apparently a strong array against 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 conclusions, and where that on the other side is not only numerically but in- trinsically overwhelming. {Strittmacher v. Salina, etc, Plank- road Co., 34 How. 74.) SECTION IX. Setting Aside the Report of a Referee. 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 finding of fact, or a ruling upon the law made upon the trial, except in a case where the report directs an interlocutory judg- ment, and further proceedings must be taken before the court, a judge, or a referee, before final judgment. (Code of Civ. Pro., §§ lopi, 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 appeal from the judgment rendered after the trial. (Id.; Code of Civ. Pro., § 996.) It is otherwise where the refer- ence is to report upon one or more specific questions of fact in- volved 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 has power to set aside a report rendered by a referee, after a trial of all the issues, for improper transactions had Setting Aside the Report of a Referee. 403 Grounds for setting aside the report. between 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 rela- tions between the referee and the successful party or his attorney are such as to cast a doubt upon his impartiality and fairness. On a motion to set aside the report of a referee for misconduct the question is not whether the referee has been guilty of actual corruption but whether the fairness of his decision is justly questioned. It is the settled law of this state that any indiscreet action of a referee, from which improper inferences can be drawn, suffices to set aside his report. {Reynolds v. Moore, i App. Div. 105.) If it appears that the report of the referee upon a question of fact Las 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 cfe Woodstoch Turnpike 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 snch 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. Fish, 1 Jones & Sp. 464; 12 Abb. [N". S.] 213 ; 42 How. 135 ; 53 N. Y. 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. Gwiniis, 4 How. 253.) So a report was set aside where the referee, in the absence of one party, advised the other to compromise, suggesting terms, and Avlien the advice was not taJceu, reported against him. {Livermore v. Bainlridge, 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 wall 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 dae season, and under circumstances not amounting to a waiver, without regard to the question whether the referee has 404: Trial Practice. Grounds for setting aside the report. been or is likely to be influenced by the existence of the relation. {Carroll v. Lufkins, 29 Hun, 17.) .But it wonld 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 b}'' the plaintiff as attorney in other matters, that fact of itself avoids a report in favor of the plaintiff. {Stehoins 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 sufficient 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 a.uy case where it is ap- 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 influenced by such extraneous considerations, nor whether the report is such as ought to have been rendered 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 influ- enced by improper motives, (See Fortunate v. The Mayor, 31 App. Div. 271.) How far the failure of a referee to take the oath prescribed by section )0i6 of the Code of Civil Procedure affects the validity of his report has been considered elsewhere {ante, p. 361), and also how far the failure to make the report within the statutory time will affect its validity {ante, p. 397). 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 Exceptions to the Report or Decision. 405 Exceptions taken to the rulings of conrt or 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 laave 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 Garroll v. Lufkins, 29 Hun, 17.) The motion is addressed to the discretion of the court, and may be granted even where the integrity of the referee is beyond ques- tion, and the report has made the proper disposition of the case. (For form of order setting aside the report, see Appendix.) SECTION X. Exceptions to the Report or Decision. 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., § 991^.) This class of exceptions has been noticed, (See ante, p. 290.) The other class embraces exceptions 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 mat- ters contained in the report or decision itself. No exception to a ruling upon a question of fact is authorized or allowed upon a trial of an issue of fact by the court or a referee ; but an exception is authorized to a ruling upon a ques- tion of law. (Code of Civ. Pro., §992.) The provision of the Code (section 1023) permitting a party to request the court or referee to find upon questions of law or fact and requiring the court or referee to find or refuse to find as 406 Trial Practice. Exceptions to mlings made after submission. requested has been repealed, as has also another provision of the Code (section 993,) providing that upon the trial of an issue of fact by a referee or by the court without a jury a refusal to make any finding whatever upon a question of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it is a ruling upon a question of law within the meaning of the section authorizing an exception to a ruling upon a question of law. The repeal of these sections sweeps away all exceptions to refusals by the court or referee to make specific findings of fact at the request of the parties to the action, and renders obsolete numerous decisions upon that branch of the practice. The court or referee may state separately the facts found and conclusions of law in the report or decision or may state concisely the grounds upon which the issues have been decided, and in the latter case the defeated party may file an exception to such deci- sion, and upon a proper presentation of his exception to the appellate division of the Supreme Court have a review of all the questions of fact and law. (See Code of Civ. Pro., § 1022.] Without such exceptio.i there will be nothing for the court tc review. {Price v. Levjf, 26 App. Div. 620.) 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 filing 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 service upon the attorney for the expectant of a copy of the decision of the court, or report of the referee, and a written no- tice of the entry of judgment thereupon. If the notice ol 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 trom 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 Exceptions to the Report or Decision. 407 The exceptions taken shonld be clear, pointed and speciGc to make a case does not extend the time to take exceptions be- yond that fixed by the Code. {Hatch v. Fogerty, 7 Rob. 488; Beach V. Gregory, 3 Abb. 78; i Hilt. 201.) But in a proper case leave may be given to file the exceptions nuTic pro tunc. (Coe v. Coe, 14 Abb. 86; Bortle v. Mellen, id. 228; Sheldon v. Wood, 14 How. 18; 6 Duer, 679; Strong v. Hardenburgh, 25 How. 438, 4^q; Code of Civ. Pro. § 783.) The exceptions taken should be clear, pointed and specific. {Magie v. Baker, 14 N. Y. 435; Newell v. Doty, 33 N. Y. 83. Wardv. Craig, 87 N. Y. 550; Daniels v. Smith, 130 N. Y. 696; Loomis V. Loomis, 51 Barb. 257.) 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 ques- tion for review. (Wheeler v. Billings, 38 N. Y. 263; Ward v. Craig, 87 id. 550, 551. See Middlebrook 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 different from that in which it is stated by the court or ref- eree. Thus, an exception " to all and every the conclusions of law in said decision and judgment contained, to-wit," then setting forth the substance of each conclusion of law stated by the court in the decision, is sufficient. {Spauld. ingv. Strong, 1%'^^. 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- tion consists of a single conclusion ot law, a general exception is sufficient, flyths v. LaFoniain, 51 Barb. 186.) An exception by the defendant's counsel to a conclusion that the plaintifE is entitled to recover a specified sum raises the question whether the plaintifE is entitled to recover that entire sum. {Briggs V. Boyd, 56 if. Y. 289.) But an exception " to that part oi said de- cision which allows " a specified sum " as interest," is not arailable 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 408 Trial Practice. A general exception. allowauce of any interest ort 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 pi'emises, .under any judgment, shall be paid by the sheriff or referee making Action to Foreclose a Mortgage. 467 Where the mortgage debt is not all due. 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." (Glen. Eule 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 luortgage debt is not all due, and it appears that the mort- gaged property is so circumstanced that a sale of the whole will be aiost beneheial to the 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., § 1637. See De Forest v. Farley, 4 Hun, 64:0.) 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, ig N. Y. 440.) If there are liens subsequent to the mort- gage, the court has power to direct the sale of the entire premises for the protection of the equities of the subse- quent lienors, although a sale of a portion only would satisfy 468 Trial Practice. Sale in inverse order of alienation. the plaintiff's claim. (Id. ; De Forest y. Farley, 62 N. Y. 628 ; Barnes v. Stoughton, 10 Ilun, 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. Lymburner, S,o '^ . Y . ITU ; Guion v. Knapp, 6 Paige, 35 ; Kellogg v. Band, 11 id. 59 ; Clowes v. Biok- inson, 5 Johns. Ch. 235 ; Sleeve v. Childs, 15 Hun, 611 ; Stuyve- eant v. Ball, 2 Barb. Ch. 151; Bowne v. Bynde, 91 K Y. 92; Hopkins V. Walley, 8i id. y/; WiLin^ v. Ryer:>un, 94 id. y8 ; Jytu- ton V, Ontario Co. Nat. Bank, "JJ Hun, 83.) A paity 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. {Vandercook v. Cohoes Savings Institution, 5 Hun, 641.) The bare insertion in the decree of a clause directing the sale of the premises in separate parcels in the inverse order of alienation does not settle any question as to the relative priorities and equities of incumbrancers subsequent to the mortgage foreclosed unless the clause was based upon the deter- mination by the court of some issue raised in the pleadings and proceedings prior to the decree. (Burchell v. Osborne, 119 N. Y. 486.) 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 of the proceeds of the sale are applied to the payment of the plaintiff's mortgage; and the court may render judgment in the action containing a provision to that effect. {Doctor v. Smith, i6 Hun, 245.) But the 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 Pajw v. Grant, 23 Hun, 134.) The gen- eral rule is that a party who has an interest in real estate anterior Action to Foreclose a Mortgage. 469 Effect of foreclosure of junior mortgage. to that of a mortg^agor is not affected by a judgment in a suit for the foreclosure of the mortgage though made a party under the allegation in the complaint that he has or claims some interest subsequent to the lien of the mortgage. {Jordan v. VanEpps, 85 N. Y. 427; Barnard v. Onderdonk, 98 N. Y. 158 : Goebel v. Iffla, III N: Y. 170; Fletcher v. Barber, 82 Hun, 405; Lee v. Parker, 43 Barb. 611 ; Payn v. Grant, 2;^ Hun, 134; Older v. Russell, 8 App. Div. 518.) The junior mortgagee has no power to compel \ the foreclosure of a prior mortgage in his action to foreclose the junior mortgage. {Adams v. McPartlin, 1 1 Abb. [N. C] 369.) If the facts upon which the plaintiff relies to defeat the prior title are stated in the complaint, the defendant whose title is thus assailed may demur to the complaint upon the ground that the plaintiff has no right to bring him into court upon the foreclosure to try the validity of his title; but if, instead of demurring, he answers and litigates the ques- tion, and judgment goes against him, or if he suffers judgment to be entered against him by default, he will be concluded by the judgment. {Goebellv. Iffla, in N. Y. 170.) So if the com- plaint alleges the existence of a prior mortgage and prays for relief that the amount due thereon be ascertained and that such amount be first paid out of the proceeds of the sale in foreclosure, and on default of the defendant judgment follows the prayer of the complaint, the prior incumbrance will be cancelled by the judgment. {Jacobiev. Mtckle, 144 N. Y. 237.) The same result will follow if, in answer to a complaint alleging that the defend- ant has some claim or interest in the morcgaged premises which, if any, accrue subsequently to the execution of the mortgage, the defendant sets up by answer his prior right or claim to the premises, and stating the facts in regard to his interest therein, asks the court to determine as to his title thereto. {Fletcher v. Barber, 82 Hun, 408. See Cromwell \. MacLean, 123 N. Y. 474.) An answer denying that defendant's claim is subsequent to the plaintiff's mortgage and setting up facts showing his interest in the premises cannnot be stricken out as frivolous. {Older v. Russell, 8 App. Div. 518.) The right, title and interests of defendants in the action of foreclosure become barred and foreclosed, not upon the date of 470 Trial Practice. Stay of proceedings upon the judgment. the entry of judgment, but from and after the sale of the prem- ises and the conveyance made thereunder. The judgment in such action is final for all purposes of review, but in other re- spects it is interlocutory. All the proceedings for the sale, includ- ing the advertising of the notice, and the confirmation of the sale take place thereafter; and until the sale, confirmation, and con- veyance, the mortgagee or the owner of the equity of redemption may redeem, and persons having judgment liens upon the prop- erty may sell upon execution notwithstanding the judgment. (Nutt V, Cuming, 155 N. Y. 309.) ■ Stay of proceedings upon the judgment. — "Where an action is brought to fcH^close a mortgage upon real property upon which a portion of the principal or interest is dne, 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 npon 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 snm then due. (Code of Civ. Fro^ § 1635.) The right to make such subsequent order will be expresdy conferred by the judgment. (See ante, p. 467.) If the defendant wishes a stay in the execntion of the final judg- ment he shonld make an application for leave to make the payment into court, and procure the order for a stay. {Long v. Lyons, 5i How. 129.) But if the plaintiff accepts from the hands of the defendant the payment of the principal and interest dne and the costs and expenses, he will thereby waive the making of payment into court. (Id.) No order to stay a sale under a jndgment for the foreclosure of a mortgage will be made or granted by a judge out of court except np)on a notice of at least two days to the plaintiff's attorne}-. (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. Vol- Jcening, 3 Abb. IST. C. 454.)' The application for the stay may be based upon a verified petition Action to Foreclose a Mortgage. 471 Sale in foreclosure. 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 liearing 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 tlie court. Sale in foreclosure. — The sale of the mortgaged premises under the linal judgment must take place in the county wliere 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., § 124:2.) 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. 423.) 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, in which case, if it has not already been done, it is the dutj^ of the plaintiff to cause the same to be recorded at f uU length in the county or counties where the lands so sold are situated befoi-e 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 the 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- jiioney or to accept a deed. The clerk of the latter county must «nter it in the judgment-book kept by him, upon filing with him a *72 Trial Practice. Disposition of procet ds ot 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 wh;>se 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, witli- out naming in that clause any of the other parties to the action ; otherwise the purchaser is not bound to accept the conveyance, and the officer 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 Randall v. Von Ellert, 4 Abb. N. C. 8G.) 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 tiiat 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. N. C. 86.) The conveyance vests in the piirchaser 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 tlie 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.) Disposition of the proceeds of tlie sale. — The ofiicer making^ the sale should retain out of the proceeds a sufficient 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 liis attorney the amount of his debt, interest and costs, if there is sufli- cient money remaining in his hands for that purpose, and if there is any surplus 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 arisinr^ from the sale of mortgaged premises under any judgment shall ba- Action to Foreclose a Mortgage. 47S Report of sale. 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, imless 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 shoAving that they have been jjaid 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 Kule 64.) The practice under the rule has been already considered, (See ante, p. 433.) Report of sale. — A report of sale should be drawn up by th^ sheriff or referee as soon as practicable after making the prope"r dis- position of the proceeds of the property sold as directed by tlie 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. 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 the 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 execution to collect the amount of any deficiency specified in the report, and provided for in the judgment directing the sale. The judgment directing the sale and the payment of any de- ficiency reported by the sheriii or referee, is final, and no further 474 Trial Practice. Confirmation of the report. intervention of the court is necessary. {Moore v. Shaw, 15 Hun, 428; Hawley v. Whalen, 64 Hun, 550; Taylor v. Derrick, 46 St. Rep. 583; Springsteenev. Gillett, 30 Hun, 260.) At most, the fail- ure 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 721 of the Code of Civil Procedure, unless the adverse party has been pre- judiced. (Id. See Barnard v. Onderdonk, 11 Abb. N. C. 349.) But it may be that for the purpose of giving a deed to tie pur- chaser and perfecting the title between mortgagee and pur- chaser, a confirmation of the report is proper or necessary. (See Moore v. Shaw, 15 Hun, 428.) It will certainly be safe practice 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 con- firming the report. CHAPTER IX. COSTS. SECTION I. Nature of the Right to Costs. Costs or allowances for expenses in legal proceedings depend im, 6 Abb. N. C. 353.) Where the parties to a partition suit are compelled to reim- burse the purchasers, under a decree of partition and sale, for their expenses, etc., for the reason that the partition proceedings were invalid, and they could not, therefore, be compelled to complete the purchase, the guardian ad litem of infant plaintiffs is person- ally liable for his wards' share of the deficiency so arising. {Muller v. Struppman, 6 Abb. N. C. 343 ) 522 Trial Practice. In action for partition. A guardian ad litem who has been compelled to pay costs has a remedy against the estate of the plaintiff {Leopold v. Meyer, 10 Abb. 40, 41 ; 2 Hilt. 580), and is entitled to reimbursement out of the recovery, if any, for expenses necessarily incurred (Id.) ; but he cannot hold the attorney for the plaintiff liable, after the latter has paid over the proceeds of the action to the plaintiff, without notice of the guardian's claim. (Id.) A guardian for an infant defendant in an action is not liable for the costs of the action, unless specially charged therewith by an or- der of the court for personal misconduct. (Code of Civ. Pro., § 477.) In action for partition. — The final judgment for the partition of property must also award that each defendant pay to the plaintiff his portion 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 unknown iiis 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 in- terest in the property may be sold by virtue thereof, as if he v/as named in the execution. (Code of Civ. Pro., § 1559.) The fees and expenses of commissioners appointed to make actual partition, including the expense of a survey, when it is made, must be taxed under the direction of the court, and the amount tliereof must be paid by the plaintiff and allowed as part of his costs. (Id., §1.555.) Defendants who receive no portion of the lands partitioned should not be subjected to the payment of any part of the costs. {Tanner V. Niles, IBarb. 560. 565.) In action for dower. — It has been held that, as there are no statutory provisions in reference to costs in an action for dower, the oasts arc in the discretion of the court, and are governed by the con- duct of the parties. {Aikman v. Harsell, 31 Hun, 634. See an,te, p. 50C.) The Code provides that the fees and expenses of the commis- sioners 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 Against Whom Awarded and Who Liable to Pay. 523 In action to determine claim to real property. thereof must be paid by the plaintiff, and allowed to her upon the taxation of her costs. (Code of Civ. Pro., § 1612.) These costs become a part of the final judgment, and may be col- lected by execution. (Id., § 1240.) The statute gives them, at least, as matter of right. *&'■ In action to determine claim to real property. — In an action to compel the determination of a claim to real propertj^, a final judgment for the plaintiff, taken upon the defendant's default in appearing or pleading, cannot award costs to either party, unless it is taken upon a default in answeriig after a decision of a demurrer to the complaint (Code of Civ. Pro., § 1645.) In joint action by creditor against next of kin, legatees, etc — In an action brought jointly against the surviving husband or wife, and all the legatees, or all the next of kin, as the case may be, of a decedent, to recover, to the extent of the assets paid or dis- tributed to theui, for a debt of the decedent, the costs of the action, if the plaintiff is entitled to costs, must be apportioned among the defendants in proportion to the legacy or distributive share, as the case may be, received by each of them, except that the expenses of sewing the summons upon each defendant must be taxed against him only, and one sheriff's fee for returning an execution may be taxed against each defendant against whom any sum is awarded. (Code of Civ. Pro., § 1839. See ante, p. 477.) In action by plaintiff and sheriff to recover attached prop- erty, etc. — In an action brought by the plaintiff in a warrant of attachment, in the name of himself and the sheriff jointly, to recover property attached, or the value thereof, or a demand attached, or upon an undertaking, the sheriff is not liable for the costs or expen- ses. Costs may be awarded, in such an action, against the plaintiff in the warrant, but not against the sheriff. (Code of Civ. Pro., § 677.) In action by people against corporation or usurper of franchise.-^ Where final judgment in an action brought in behalf of the people is rendered against a corporation, or person claiming to be a corporation, the court may direct the costs to be collected by execution against any of the persons claiming to be a corporation, or by warrant of attachment or other process against the person of any 624 Trial Practice. In action by people on relation of private person. director or other officer of the corporatiuu. (Code of Civ. Fro., g 1987.) In action by people on relation of private person. — Where an action is brought in the name of tlie people upon the relation of a private corporation or individual, as prescribed in section 1986 of the Code, a judgment awarding costs to the defendant must award them against the relator in the first instance and against the people only in case an execution issued thereupon against the property of the relator is returned iinsatisfied. (Code of Civ. Pro., § 3242.) In action by people for benefit of a county, etc. — In an action or a special proceeding brought in the name of the people, to recover money or property, or to establish a riglit or claim foi the benefit of a county, city, town, or village, costs cannot be awarded against the people; but where they are awai-ded to the defendant they must be awarded against the body for whose benefit the action or special proceeding was brought. (Code of Civ. Pro., § 3243.) Costs against the people.— Where judgment is rendered, or a final order is made, against the people, in a civil action brought, or special proceeding instituted, in their name, by a public officer, pursuant to a provision of law, it must be to the same effect, and in the same form, as against a private individual, who brings a like action, or institutes a like special proceeding, except as otherwise specially prescribed by law. But an execution shall not be issued against the people. (Code of Civ. Pro., § 1985.) Where costs are awarded against the people of the State in an action or a special proceeding brought by a public oflicer pursuant to any provision of law, and the proceedings have not been stayed by appeal or otherwise, the comptroller must draw his warraut upon the treasurer for the payment of the costs out of any money in the treasury appropriated for that purpose, upon the production to him of an exemplified copy of the judgment or order awarding the costs,. and, where the amount is not fixed thereby, of a taxed bill of costs, accompanied, in either case, with a certificate of the attorney- general, to the efEect that the action or special proceeding was brought pursuant to law. The fees of the clerk for the exemplified copy must be certified thereupon by him, and included in the warranto CCode of Civ. Pro., § 3241.) Against Whom Awarded and Who Liable to Pay. 535 In case of notice of no personal claim. The game laws of this State are so often the subject of amend- ment that decisions under it as to the liability of the plaintiff for the costs of an unsuccessful suit for a penalty brought in the name of the people have only a temporary or historical value. (See People v. Rosendale, 76 Hun, 112; People v. Alden, 112 N. Y. 121.) In case of notice of no personal claim. — Where a personal <:laim is not made against a defendant, a notice, subscribed by the plaintiff's attorney, setting forth the general object of the action a brief description of the property affected by it, if it affects specific real or personal property, and that a personal claim is not made against him, may be served with the summons. If the de- fendant so served unreasonably defends the action, costs may be awarded against him. (Code of Civ. Pro., § 423.) It does not follow, however, that the party should be charged with all the ■costs of the action but only such as were incurred by reason of the defense. {First Nat. Bank v. Washburn, 20 App. Div. 518.) But the fact that such a noiice Jias nul been served does not de- prive the court of power to award costs, in its discretion, in an equity- case, against a defendant served with a copy of the complaint and who unnecessarily defends. ((yUara-v. Brophy, 24 How. 379.) Where a defendant served with the notice was unnecessarily made a party, and unnecessarily defends, neither party should be awarded costs. {Bake7' v. Burton, 67 Barb. 45S.) SECTION YIII. Amount of Costs and Items Taxable. In general. — A party entitled to costs of course, or to whom costs have been awarded in the discretion of the court, is entitled to the amount of costs fixed by the statute. The court has no discretion in respect to the amount of costs to bo allowed. {Doicn- ingv. Marshall, 37 N. Y 380, 384.) And as there can be no vested right to cos,t& pendente lite {G-arling v. Ladd, 27 Hnn, 112) the statute in force, when the party becomes entitled to costs, de- termines the amount to which he is entitled . {JacTcett \ Judd,l% How. 385; Crary v. Ncmoood, 5 Abb. 219; Soudder v. Gori, 18 id. 207; 3 Kob. 629; 28 How. 155.) The amount of costs to which the plaintiff is entitled is, of course, limited by the provision 53(5 Trial Practice. Amount of costs ard items taxable. that in an action to recover a chattel, or for a personal wrong, if he recovers less than $50 he can recover no more costs than damages. (Code of Civ. Pro., § 3228.) A judgment for costs carries with it the general costs of the action from the beginning to the end, ex- cepting those specifically adjudged to the opposite party, which should be offset, and judgment entered for the excess. {Iiu,itY. Eauselt, 8 Abb. N. C. 148 ; 14 Jones & Sp. 38.) A successful party is not entitled to discretionary costs which have not been given him. (See Flynn v. Equitable Life Assurance Society, 18 Hun, 212.) And where a party is granted a favor, resting in the discretion of the court upon payment of a specified sum as the amount of the costs of the prior proceedings in the action, and those costs have been paid, neither party can afterward, on the taxation, lawfully claim the costs so adjusted and paid. {Provost v. FarrdL^ 13 Hun, 303; Woolsey v. Trustees of Ellenville, 84 Hun, 234; Seneca Nation of Indians v. Howley, 32 Hun, 288; Skinner v. White, 59 Hun, 127; Byrne v. Brooklyn City & N. R. R. Co., 6 Misc. 6; Marx v. Gross, 2 Misc. 500. See Seymour v. Ashenden, 13 Civ. Pro. R. 255.) So where the plaintiff has suffered default at the Trial Term, and the defendant has consented to open the default on payment of a specified sum, less than the costs and disbursements attending the default, and, after payment of this sum, the plaintiff obtains leave to discontinue, on payment of costs, the sum paid by the plaintiff on the opening of the default should be deducted from the defendant's costs on taxation. {Sutphen v. Lash, 10 Hun, 120. See Andrews v. Cross, 17 Abb. N. C. 92.) The Code fixes the rate of costs in actions generally (Code of Ci\S Pro., § 3251), but provides for an additional allowance to the plaintiff in certain actions as a statutory right, if he recovers final judgment and also recovers costs (Id., § 3252), and also for an addi- tional allowance, to be awarded, in the discretion of the court, to either party, in certain specified cases. (Id., §§ 3253, 3254.) It also pro- vides for increased costs to a defendant in whose favor final judg^ ment is rendered in certain actions. (Id^ § 3258.) The general provision of the Code, as to the rate of costs, is as follows : " Costs, awarded to a party to an action, must be at the following rates : Amount of Costs and Items Taxable. 527 Costs awarded to a party to an action. 1. To the plaintiff: For all proceedings, before uocice of trial, in an action specified in section 420 of this act, $15 ; in every other action, $25. For each additional defendant served with the summons, not ex- ceeding ten, $2 ; and for each necessary defendant, in excess of that number, served with the summons, $1. For procuring an order directing the service of the summons by the publication thereof, or personally without the state on one or more defendants, $io. For procuring the appointment of a guardian or guardians ad litem, foi one or more infant defendants, $io. For procuring an injunction order; or, an order of arrest, $io. 3. To the defendant: For all proceedings before notice of trial, except as otherwise prescribed in this article, $io. 3. To either party : For all proceedings, after notice of trial, and before trial, ex- cept as otherwise prescribed in this article, $15. For taking the deposition of a witness or of a party, as pre- scribed in section 870, section 871, or section 893 of this act, %\o. For drawing interrogatories, to be annexed to a commission or to letters rogatory, issued as prescribed in sections 888, 912, 913 and 3171 of this act, $1©. For the trial of an issue of law, $20. For the trial of an issue of fact, $30; and, where the trial neces- sarily occupies more than two days, $ro in addition thereto. For making and serving a case, $20; and, where the case neces- sarily contains more than fifty folios, $10 in addition thereto. For making and serving amendments to a case, $20. Upon a motion for a new trial upon a case, or an application for judgment upon a special verdict, the same sums as upon an appeal, as prescribed in subdivision fourth of this section. Upon any other motion, or upon a reference specified in sec- tion 3236 of this act, to each party to whom costs are awarded, a sum fixed by the court or judge, not exceeding $10 besides necessary disbursements for printing and referee's fees. Where a new trial is had, pursuant to an order granting the same, for all proceedings after the granting of and before the new trial, $25. 628 Trial Practice. Costs awarded to a party to an action. For one term of the City Court of the City of New York, at which the cause is necessarily on the calendar and for each Trial Term or Special Term of the Supreme Court or a County Court not exceeding $5 at which the cause is necessarily on the calendar excluding the term at which it is tried or otherwise finally disposed of, $10. 4. To either party upon an appeal to the Supreme Court from an inferior court; or upon an appeal to the appellate division of the Supreme Court, or to the general term of the City Court of the city of New York, taken from an interlocutory or final judg- ment, or from an order granting or refusing a new trial, rendered or made in the same court or at a trial term of the Supreme Court ; or upon an application to the appellate division of the Supreme Court for a new trial or for judgment upon a verdict rendered subject to the opinion of the court, or where exceptions are ordered to be heard in the first instance at a term of the appellate division of the Supreme Court : Before argument, $20. For argument, $40. For one general term of the City Court of the city of New York, at which the cause is necessarily on the calendar, and for each term of the appellate division, not exceeding five, of the Supreme Court at which the cause is necessarily on the calendar, exclusive of the term at which it is argued or otherwise finally disposed of, $10. 5. To either party upon an appeal to the Court of Appeals : Before argument, $30. For argument, $60. For each term, not exceeding ten, at which the cause is on the calendar, excluding the term at which it is argued or otherwise finally disposed of, $10. Where a judgment is affirmed by the Court of Appeals, the court may, in its discretion, also award damages, by way of costs, for the delay, not exceeding ten per centum upon the amount of the judg- ment ; or, where it was rendered upon an appeal, upon the amount of the original judgment." (Id., § 3251.) Proceedings before notice of trial.— The plaintiff's costs are fixed at $15 for all proceedings before notice of trial in an action where the complaint sets forth one or more causes of action, each_ Amount of Costs and Items Taxable. 529 Additional defendants. consisting ofthebreJich of an express contract to pay, absolutely or upon a eontingencyy * sum or sums of money fixed by the terms of the contract or capable of being ascertained therefrom by computa- tion only ; or an exprwss or an implied contract to pay money re- 1 reived or disbursed, or the value of prop-3rty delivered, or ser- vices rendered by, to, or for the use of the defendant or a third person ; and thereupon demands judgment for a sum of money only ; including a case where the breach of the contract set forth in the complaint is only partial, or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counter-claim, or other credit. (Code of Civ. Pro., §§ 3251, 420.) In any other action the plaintiff's costs for all proceedings before notice of trial are fixed at $25. (Id., § 3251.) This provision of the present Code is a substitute for the corresponding provision of the former Code (§ 307), giving the plaintiff $15 for all proceedings be- fore notice of trial where judgment for failure to answer could be taken without application to the court, and $25 where judgment could only be taken on such application. (See Yan ValJceniurgh v. Van Schaick, 8 How. 271 ; Candee v. Ogilvie, 5 Duer, 658 ; Pardee t. Schenk, 11 How. 500.) The costs allowed to the defendant for all proceedings before notice of trial are fixed at $10, except as otherwise prescribed in article 1, title 2, of chapter 21 of the Code. (Code of Civ. Pro., §3251, subd. 2.) Where an interlocutory judgment sustaining a demurrer has been entered with leave to amend costs should be limited to those allowed for proceedings after notice and before trial and a trial fee. {Jones v. Butler, 83 Hun. 91 ; Kniering v. Lennon, 51 St. Rep. 907 ; Thompson v. Stanley, 22 Civ. Pro. R. 348 ; Garrett v. Wood, 23 Misc. 7; Louis v. Empire State Ins. Co.,'ji, Hun, 364.) Additional defendants. — When costs are awarded to the pJamt- iff he is entitled to tax for each additional defendant served with the summons, not exceeding ten, $2 ; and lor each necessary defendant in excess of that number, served with the summons, $1. ^Code of Civ. Pro., § 3251.) Tlie item for additional defendants served can betaxedonly for defendants necessariljmade parties. {Oase'^, Price, ^ Abb. Ill ; 17 How. Sn^8.) Thns in an action to foreclose a mort- gage the item cannot be taxed for service upon defendants against •whom no personal claim is made, and who have no claim on the 34 530 Trial Practice. For all proceedings after notice and before trial. mortgaged property, although the objection that they were not nec- essary parties is not raised nntil the taxation of costs. (Id.) For all proceedings after notice and before trial. — Either pai-ty to whom costs are awarded is entitled to tax $15 for all proceedings- after notice of trial and before trial. (Code of Civ. Pro., § 3251, subd. 3.) The right to this item does not accrue until the action has been, noticed for trial {Morrison v. Ide, 4 How. 304), and then only in favor of a party who has served or been served with the notice. {Tillspaugh v. Dioh, 8 How. 33.) The item can be taxed but once although the cause has been more than once noticed {Perry v. Liv- ingston, 6 How. 404 ; Jackson, v. McBurney, id. 408), or even though new trials have been had if the issues have not been changed. {Jackett V. Judd, 18 How. 385. See contra, Spring v. Day, 44 id. 390.) Where a party is allowed to discontinue on payment of costs, this item is taxable if the cause had at that time been noticed by the adverse part)'. {Hall v. Linds, 8 Abb. 341.) -If no issue was- raised by the pleadings the item is not taxable although the cause was noticed for trial. {Pardee v. Sckanck, 11 How. 500 ; Cohenv. Cohen, 72 Hun, 393.) The item is not taxable on the' decision of a motion for judgment on a pleading as frivolous, as the notice of motion in such a case is not a notice of trial, and the applica- tion is not a trial. {Butchers and Drovers Bank v. Jacobson, 2.2, How. 470. See Code of Civ. Pro., § 537.) Taking deposition and drawing interrogatories. — A party entitled to costs generally is entitled to tax $10 for taking the deposition of a witness or of a party as prescribed in section 870, section 871, or section 893 of the Code, and also $10 for drawing interrogatories to be annexed to a commission, or to letters roga- tory issued as prescribed in sections 888, 912, 913, and 3171 of that act. (Code of Civ. Pro., § 3251, subd. 3.) Under the former Code this item was allowed " for attending the examination of a party before trial." (See Code of Civ. Pro., 307, subd. 3), and it was held that where a party attends to be examined the item is taxable although the examination is then waived and never had. {Steiner v. Ainswortk, 53 How. 31.) Now the item is allowed for taking the deposition. It was held at Special Term by the Superior Court of the city of New York that this item could not be al Amount of Costs and Items Taxable. 531 Trial fee. before trial pursuant to a stipulation and not under an order. {^Newman v. Greiff, 3 Civ. Pro. R. 362.) But the ruling in that case has not been followed. Depositions taken under section 879 of the Code, by virtue of a stipulation come as clearly within sections 870 and 871, as do those which are taken in pursuance of an order under other sections of the same article of the Code. {Smith V. Servis, 59 Hun, 552.) It has been held that a party is entitled to tax $10 for each witness examined before trial. (See Marstoii v. Hebert, 60 How. 490; Smith V. Servis, 59 Hun, 552) But it was held under the old Code that no more than $10 could be taxed for drawing in- terrogatories to be annexed to the commission although several witnesses are to be examined and separate sets of interrogato- ries are annexed for each. {Johnson v. Cliappell, 7 Daly, 43; O'Brien v. Commercial Fire Ins. Co., 6 Jones & Sp. 4.) The same construction has been placed upon the corresponding pro- vision of the present Code, and the statutory allowance is limited to $10, whether one witness is examined or more. {Burns v. D, L.& IV. R. R. Co., 135 N. Y. 268.) A party is entitled to $10 for drawing interrogatories although they never have been served. {Evans v. Silbermann, 7 App. Div. 139.) Trial fee. — A party entitled to costs may tax for the trial of an issue of law, $20 ; and for the trial of an issue of fact, $30 ; and where the trial necessarily occupies more than two days, $10 in addition thereto. (Code of Civ. Pro., § 3251, subd. 3.) (For the costs on the trial of an issue of law, see ante, p. 223.) A trial fee for arguing a demurrer is not allowed where the case is withdrawn from the court by consent before decision. {Losee v. Bullard, 54 How. 319.) A trial fee can be allowed only where atrial has actually taken place. {Studwell V. Baxter, ^il Hun, 331; AlcComb v. Kellogg, 13 Civ. Pro. R. 130; Ehlers v. Willis, 63 How. 341.) Thus where there is no issue joined, and the application to the court is for judgment, the court simply taking proof to determine whether the plaintiff is entitled to judgment, no trial fee can be taxed. {Cohen v. Cohen, 72 Hun, 393.) So where a cause has been called and passed, but is discontinued before it is reached on the day calendar {Krousberg v. Mayer, 20 Civ. Pro. R. 80; McComb v. Kellogg, 13 Civ. Pro. R. 150); or where it is reached on the day 632 Trial Practice. Trial fee. calendar and called for trial, and both parties answer " ready," but before it is reached for trial, in consequence of a proposition for settlement, is marked " Inquest " on the calendar (Ehlers v. Willis, 63 How. 341); or where the action has been discontinued after it has been on the dav calendar and been postponed by consent [Oelberman v. Rosenbaum, 15 Civ. Pro. R. 389), there has been no trial and no trial fee can be taxed. Where the plaintiff fails to appear when the cause is called for the trial of an issue of fact, and the complaint is dismissed on proof of service of a notice of trial, the defendant is entitled to a trial fee. {Sutphen v. Lash, 10 Hun, 120; Shannon v. Brower, 2 Abb. 377; Dodd v. Curry, 4 How. 123; Van Gilder v. Hallen- beck, 15 Civ. Pro. R. 333; Cole v. Lowry, 23 Civ. Pro. R. 113.) If the default is subsequently opened without terms, and the trial at a subsequent term results in a dismissal of the complaint, the defendant is entitled to tax two trial fees. (Id.) So if, after an inquest and judgment for the plaintiff, the judgment is opened and a trial had resulting in a verdict and judgment for the plain- tiff, he will be entitled to two trial fees. [Jacob Huffman Brew- ing Co. V. Volpe^ 4 Misc. 260.) But when the complaint is dis- missed for want of prosecution, no notice of trial having been given, a trial fee is not allowable. {Tillspaugh v. Dick, 8 How. 33) Where a defendant insists upon a defense until the cause is called and moved for trial, he cannot then put an end to the ac- tion by payment without being liable to pay a trial fee if the plaintiff insists upon it. [Jones v. Case, 38 How. 349. See Moffatt V. Ford, 14 Barb. 577.) And when the time within which to accept or reject an offer of judgment has not expired when the cause is reached for trial, the plaintiff may disregard the offer, and, upon taking judgment upon the defendant's default, is entitled to a trial free. [Pomeroy v. Hulin, 7 How. 161; Haw- ley V.Davis, 5 Hun, 642; Herman v. Lyons, 10 id. in.) If when a cause, duly noticed, is about to be moved for trial the proceed- ings are stayed to allow a motion to be made for leave to dis- continue without costs, and this motion is denied and an order made allowing a discontinuance on payment of costs, the de- fendant is not entitled to a trial fee unless the complaint is sub- sequently dismissed on failure of the plaintiff to pay costs pursuant to the order. {Sutphen v. Lash, 10 Hun, 120) Amount of Costs and Items Taxable. 5H'i Trial fee A trial fee is taxable for each trial whether the trial results in a verdict or not. Thus it is taxable where the jury is discharged be- fore verdict for the misconduct of a juror, or for a failure to agree (Hamilton v. Butler, 19 Abb. 446 ; 30 How. 36 ; 4 Rob. 054 ; Spring v. Day, 44 How. 390), or where the plaintiff withdraws a juror and is allowed to amend on payment of the defendant's costs of the term (Dewey v. Stewart, 6 How. 465), or where the complaint is dismissed for insufficiency before any testimony is taken. {Shan- nan V. Brower, '2i Abb. 377.) But where the court refuses to exam- ine the issues and of its own motion sends the case to a referee, no trial fee is taxable although a jury was impaneled and a witness sworn and examined. (National Bank of Syracuse v. McKinstry, 2 Hun, 443.) But where a new trial is made necessary by reason of the disqualification of the judge holding the term at which the former trial was had, the party succeeding on the new trial is entitled to two trial fees. (Cregin v. BrooMyn Crosstown B. B. Co., 19 Hun, 399.) The same rule ajjplies where a reference has been rendered inefEect- ual by the failure of the referee to file or deliver his report within the statutory time, and a second trial has been had at the Circuit. In an equity case, where special issues are tried before a jury, and subsequently the case is tried before the court and other testimony given, two trial fees are taxable. (Browne v. Murdoch, 12 Abb. N. C. 360. See Waterhitry v. Westervelt, 3 Sandf. 749 ; Wiggins V. Arhenburgh, 4 id. 688.) On amotion for a new trial on the minutes (Naugatuck Cutlery Co. V. Bowe, 5 Abb. N. C. 142), or on a motion for judgment on a pleading as frivolous (See Code of Civ. Pro., § 537 ; Bernhard v. Knapp, 11 Abb. [N. S.] 342 ; Butchers <& Drovers' Bank v. Jacob- son, 22 How. 470 ; Bell v. JVoah, 24 id. 478 ; Whitman v. Nlcoll, 16 Abb. [N. S.] 329 ; 49 How. 84), no trial fee is taxable. The opening of a case, introduction of evidence and summing up by counsel to the jury, or submission to the court or referee on writ- ten points and arguments after the evidence is closed, are parts of the trial of an issue of fact ; and in cases in which more than two days are necessarily occupied in completing the trial, including the prepa- ration and submission of written points or arguments, if that mode of submission is agreed upon, the party succeeding is entitled to the $10 given by the statute in addition to the ordinary trial fee. (My' gatt V. Willcox,, 35 How. 410 ; Spring v. Day, 44 id. 390.) 634 Trial Practice. Term fee. Motion for a new trial. — A party entitled to costs may tax upon a motion for a new trial upon a case, before argument, $20 ; for argu- ment, $40 ; for making and serving a case, $20, and where the case necessarily contains more than fifty folios, $10 in addition thereto; for making and serving amendments to tlie case, $10 (See Selover v. Wisner, 37 How. 176; Stittv. Eowley, id. 179), and where a trial is had pursuant to an order granting it, for all proceedings after the granting of and before the new trial, $25. (Code of Civ. Pro., § 3251, subd. 3.) This latter provision contemplates a formal order granting a new trial after a trial completed. A trial after a trial resulting in a disagreement of the jury, etc., is not a new trial within the meaning of this provision. [Hamilton v. Butler, 19 Abb. AiiQ ; 30 How. 36 ; 4 Rob. 654.) Where the motion for a new trial is made upon the judge's min- utes without a case, the court, upon granting or denying it, may allow ordinary motion costs or not, in its discretion. (Naugatuck Cutlery go. V. Eowe^ 5 Abb. K C. 142.) Term fee. — A party entitled to costs may tax $io as a term fee for one term of the City Court of New York, at which the cause is necessarily on the calendar, and for each Trial or Special Term of the Supreme Court, or a County Court, not exceeding five, at which the cause is necessarily on the calendar, excluding the term at vifhich it is tried, or otherwise finally disposed of. (Code of Civ. Pro., § 3251, subd. 3.) There can be no right to term fees until a cause is actually at issue, although the date of issue be fixed by stipulation and the cause be placed on the calendar. {Livingston v. Vielle Zinc Min- ing Co., 7 Abb. 255; 4 Duer, 681.) But five term fees are allowable although the cause is again on the calendar, and a new trial necessarily had, after they have accrued. {Hamilton v. Butler, 19 Abb. 446; 30 How. 36; 4 Rob. 654.) But if an agreement or stipulation be fairly entered into by the attorneys that the costs of a term shall abide the event, it may be enforced without regard to the statutory limit. {Emmons V. New York & Erie R. R. Co., 17 How. 490.) No term fee is taxable for the term at which the cause is tried or otherwise finally disposed of, a trial fee being taxable instead thereof. {Place v. Bnttervnts, etc., Manuf. Co., 28 How. 184.) Amount of Costs and Items Taxable. 535 Term fee. A cause is necessarily on the calendar, within the meaning of the statute, when, being at issue and in readiness for trial, the party who has noticed it has put it on the calendar for the pur- pose of trying it if he has an opportunity. {Sipperly v. Warner, 9 How. 332; Kahn v. Coen, 31 Abb. N. C. 478.) Where a cause goes over the term for five successive terms by mutual .con- sent the party ultimately succeeding on the trial is entitled to tax five term fees. {Deyo v. Morss, 21 Misc. 497.) A plaintiff who obtains judgment on an answer as frivolous, after the cause has Leen upon the calendar, cannot say that the cause was necessarily upon the calendar and is not entitled to a term fee. (Candee v. Ogilvie, 5 Duer, 658.) ^nd a party at whose request a cause is postponed cannot, upon subsequently recovering judgment, tax a term fee for that term. {Gay v. SeihoLd, 3 Civ. Pro. E.. 169 ; Hanna v. Dexter, 15 Abb. 135 ; Himnan v. Bergen, 5 How. 245 ; Whipple v. Williams, 4 id. 27; Crawford v. Kelly, 10 Bosw. 697; Sipperly v. Warner, 9 How. 332. See Jackson v. Lynch, 32 id. 93.) The successful party is entitled to term fees only for terms which he attended prepared for trial, and at which the cause, through no default of his, was not tried. {Fisher v. Hunter, 15 How. 156; Shufelt v. Power, 13 id. 89.) But where a cause is set down for a particular day, and is not again reached, the prevail- ing party is entitled to a term fee for that term. {Ormsby v. Bdb- ■cock, 2 Abb. 253 ; 4 Duer, 680.) A party who has paid a term fee as a condition of having the trial postponed cannot again be charged with a fee for that term although final judgment is against him. {Trustees of Penn Yan v. Tuell, 9 How. 400.) Where a cause, before being reached on the calendar, is referred by stipulation, the successful party is entitled to a term fee for that term. {Sipperly v. Warner, 9 How. 332 ; Fisher v. Hunter, 15 id. 156.) But the rule is otherwise where the successful party obtained the order of reference against the consent of his adversary 011 the ground the cause was a referable one. (Id. ; Perry v. Livingston, 6 How. 404.) The provision as to a term fee does not apply to a reference. {Anonymous, 8 How. 82 ; 1 Duer, 596.) And no term fees are allowable for terms occurring between the order of reference and 636 Trial Practice. locreased costs. the trial before the referee. After the order of reference the cause is not properly on the calendar. (Anonymous, 1 Duer, 651.) A. settlement by which a party is to pay the legal costs of the action contemplates such costs as the adverse party would have been entitled to had judgment been entered in his favor at the time of the settlement, and he is not entitled to a terra fee for a term com mencing subsequently to the settlement, although the cause was no- ticed for that term and a note of issue tiled. (^Latham v. Bliss, 13 How. 416.) And where the cause is noticed by both parties, and put upon the calendar by the clerk, and thereafter and before the commencement of the term the plaintiff discontinues, the defend- ant is not entitled to a term fee. {Drew v. Coinstock, 17 How. 409.) But where the cause is called in its order on the calendar, and passed because counsel for both parties are engaged out of court, and there- after the plaintiff discontinues, the defendant is entitled to a term fee. {Forbes v. Loche, 8 How. 218.) For every term, not exceeding five, during which a motion for a ■new trial on a case is on the Special Term calendar and is not finally disposed of, a term fee is taxable. {Malam v. Sijnpson, 12 Abb. 225 ; 20 How. 488 ; Moore v. Cochroft, 9 id. 479 ; Mechanics' Banking Ass'n v. Kiersted, 10 id. 400. See Jackson v. Judd, 18 id. 385.) SECTION IX, Increased Costs. " In either of the following cases a defendant, in whose favor a final judgment is rendered in an action wherein the complaint de- mands judgment for a sum of money only, or to recover a chattel ; or a final order is made in a special proceeding instituted by a State writ, is entitled to recover the costs prescribed in section 3251 of this act, and, in addition thereto, one-half thereof : 1. Where the defendant is or was a public officer, appointed or elected under the authority of the State, or a person specially ap- pointed, according to law, to perform the duties of such an officer ; and the action or special proceeding was brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform. 2. Where the action was brought against the defendant by reason of an act done by the command of such an officer or person, or in his aid or assistance, touching the duties of the office or appointment. Increased Costs. 537 Right to recover increased costs. 3. Wlierc the actiou was brought agaiuot the det'eudaii t tor taking a distress, making a sale, or doing any other act by or under color of authority of a statute of the State. But this section does not apply where an officer or other person specified herein unites in his answer with a person not entitled to such additional costs." (Code of Civ. Pro., § 3258.) The increase specified above does not extend to the disbursements, and an oificer, witness or juror is not entitled to any other fees in the action, except the single fee allowed by law for his services. (Id., § 3259.) A plaintiff, who recovers double or other increased damages, does not thereby become entitled to more than single costs, except where it is otherwise specially prescribed by law. (Id., § 3257.) The Code declares the classes of action in which increased costs are recoverable, and establishes the rule followed before its enactment, viz. : that increased costs cannot be recovered in equity actions. {Davis V. Cooper, 50 Barb. 376 ; Taalcs v. Schmidt, 25 How. 340 ; Cooper V. Metropolitan Board of Health, 33 id. 5 ; Stewart v. Metropolitan Board of Health, id. 3 ; 34 id. 31 ; 50 Barb. 192 ; 3 Abb. [N. S.] 383.) A proceeding by mandamus against a public officer has been held to be an " action " within the meaning of a statute giving double costs to defendant officers. {Peop>leY. Colborne, 20 How. 378.) But a public officer who succeeds in such a proceed- ing is now entitled, in terms, to increased costs. (Code of Civ. Pro., §§ 3258, 1991.) An action to try the title to a public office is not enumerated in the Code provision, and increased costs are not recoverable therein. (See People v. Adams, 9 Wend. 464.) Wbile the right to increased costs is lost if the defendant unite in his answer with a pereon not entitled to such costs, the right is pre- served if the defendant answers separately. {Bradley v. Fay, 18 How. 481 ; Bow v. Shenoood, 6 Johns. 109.) The death af a party who would have been entitled to increased costs, and the substitution of his personal representative in his place, does not afEect the right {Caipenter v. 'Willet, 28 How. 376 ; 3 Rob. 700.) A justice of the peace sued for malicious prosecution {Row v. Sherwood, 6 Johns. 109) ; a constable sued for an official act (Jonei V. Gray, 13 Wend. 280) ; a surrogate sued for not paying ovei money received by him as such [Burhaus v. Blanchard, 1 Denio^ 538 Trial Practice. Costs of several trials. 626) ; a school district collector {Reynolds y. Moore, 9 "Wend. 35) ; an overseer of highways and persons acting under him, sued for crespass, where they justified on the ground that the locus in quo was a public highway, and that the act complained of was directed by the commissioner of highways ( Yan Bergen v. AcJcles, 21 How. 314) ; an overseer of the poor, sued by a superintendent of the poor, to recover for tlie support and maintenance of an alleged pauper {Gallup V. Bell, 20 Hun, 172), have been held entitled to increased costs. But a board of supervisors of a county is not a public officer within the meaning of the statute. {People v. Supervisors of Niagara Co., 50 How. 353.) A defendant entitled to increased costs is entitled to them abso- lutely. In a proper case they follow as of course the rendering of final judgment, the same as single costs under section 3229 of the Code. {Smith v. Cooper, 30 Hun, 395 ; Wheelock v. SotcKkiss, 18 How. 468; Carpenter v. ^Yillett, 28 id. 376 ; 3 Eob. 700 ; Peo- fle V. CoTborne, 20 How. 378. Contra, Stewart v. Metropolitan Board of Health, 33 id. 4; Saratoga & Washington R. R. Co. v. McCoy, 7 id. 190.) Cost of several trials. — Where upon the trial of an equitable action the plaintiff has recovered a judgment which has been affirmed by the general term but is reversed by the Court of Appeals and a new trial granted " with costs to abide the event," and on the new trial the defendant is successful and obtains a dismissal of the complaint he is entitled to tax the costs of the first trial, of both appeals, and of the new trial at which he finally recovered judgment. {Franey v. Smith, 126 N. Y. 658.) The rule is the same in both legal and equitable actions. (Id.) Where a judgment for the plaintiff in an action at law is reversed on appeal and a new trial granted "with costs to abide the event," and the plaintiff again recovers judgment on the second trial he is entitled to tax the costs of both trials and of the appeal. {Smith V. Smith, 22 App. Div. 319; First Nat. Bank v. Fourth Nat. Bajik, 84 N. Y. 469.) Where a judgment for the defendant in an action at law has been affirmed at the general term with costs, and on appeal to the Court of Appeals has been reversed and a new trial granted " with costs to the plaintiff to abide the event," and on the second trial the defendant is again successful he is entitled to tax the Increased Costs. 539 Cost of several trials. -costs of the appeal to the general term and the costs of both the first and second trials, but not the costs of the appeal to the Court of Appeals, as they were awarded to the plaintiff upon the condition of his success on the second trial. {Belt v. American -Central Ins. Co., 33 App. Div. 239.) So where upon an appeal from a judgment in favor of the plaintiff a new trial has been granted by the general term "with costs to the defendant to abide the event," and the plaintiff again succeeds upon the new trial, he is entitled to tax the costs of both trials but not the costs of the appeal. {Howell v. VanSicklen, 8 Hun, 524; 54 How. 264; 4 Abb. N. C. I.) Where on appeal to the Court of Appeals in a case where the allowance of costs is discretionary the court affirms or reverses the judgment "with costs," that formula means the costs of the Court of Appeals only. {Matter of Water Commissioners, 104 :n. Y. t-j-;.) If, after an action has been tried, and a verdict rendered for the plaintiff, it is discovered that the judge holding the term is for any reason disqualified, and on a subsequent trial before another judge the plaintiff again recovers a verdict, he is entitled to costs of both trials. {Cregin v. Brooklyn Cross-town R.R. Co., 19 Hun, 349.) So if a cause is tried before a referee, and the reference is terminated by notice on account of the failure of the referee to file or deliver his report within the time allowed by the statute, the part}' succeeding upon the new trial had at the Circuit or before another referee is ■ entitled to the costs of both trials. Where, in an action of ejectment, a verdict has been rendered for the plaintiff, a new trial has been ordered by the General Term, costs to abide the event, and a verdict rendered for the defendant, a new trial on the ground of newly-discovered evidence has then been granted on the plaintiff's motion, on payment of a specified amount of defendant's costs and disbursements, and tlie costs of the motion, which the plaintiff pays ; and on the last trial a verdict is rcndttred for the plaintiff, he is not entitled to tax costs of the .iirst md second trial. ±Provost v. Farrell^ 13 Hun, 303.) 540 Trial Practice. Additional allowance by statute. SECTION X. Additional Allowance by Statute. In general. — The Code provides that where the action is brought to foreclose a mortgage upon real property ; or for the partition of real property ; or to procure an adjudication upon a will or other in- strument in writing ; or to compel the determination of a claim to- real property ; or where, in any action, a warrant of attachment against property has been issued ; the plaintifE, if a final judgment is rendered in his favor, and he recovers costs, is entitled to recover, in addition to the costs prescribed in the last section, the following- percentages, to be estimated upon the amount found to be due upon the mortgage ; or the value of the property partitioned, affected by the adjudication upon the will or other instrument, or the claim to which is determined ; or the value of the property attached, not ex- ceeding the sum recovered, or claimed, as the case may be : Upon a sum, not exceeding $200, ten per centum. Upon an additional sum, not exceeding $400, five per centum. Upon an additional sum, not exceeding $1,000, two per centum. Where such an action is settled before judgment, the plaintiff is- entitled to a percentage upon the amount paid or secured upon the settlement, at one-half of those rates. In an action to foreclose a mortgage upon real property, where a part of the mortgage debt is not due, if the final judgment directs the sale of the whole prop- erty, as prescribed in section 1637 of this act, the percentages, speci- fied in the section, must be computed upon the whole sum unpaid upon the mortgage. But if it directs the sale of a part only, as pre- scribed in section 1636 of this act, they must be computed upon the- sum actually due; and if the court thereafter grants an order, di- recting the sale of the remainder, or a part thereof, the percentages must be computed upon the amount tlien due ; but the aggregate of the percentages shall not exceed the sum which would have been allowed if the entire sum secured by the mortgage had been due when final judgment was rendered. (Code of Ci\'. Pro., § 3252.) The additional allowance provided for by this section is given to the plaintiff only ; audit is given to him only where he recovers final judgment in one of the actions specified, and also recovers costs, or where a settlement of the action is effected before judgment. The recovery of costs by the plaintiff is a prerequisite to the right Additional Allowance by Statute. 541 Cases not within the statute. to the statutory allowance, unless the action has been settled before judgment. {Morris v. Wheeler, 45 N. Y. 708, 712.^ The right to this additional allowance is limited to the actions or eases specified by the statute. It cannot properly be claimed in an miction to foreclose a mechanic's lien, as that is not an action to fore- close a mortgage, or to compel the determination of a claim to real property within the meaning of the statnte. {Randolph v. Foster, 4 Abb. 262 ; 3 E. D. Smith, 648. Nor can it properly be claimed in an action brought to restrain the foreclosure of a mortgage. {Sprang v. Snyder, 6 How. 11.) An action brought by executors for i;he specific performance of a contract to purchase real estate, in Tvhich it is necessary to establish their right to convey, and for this purpose produce and rely upon a will, is not an action to procure an .adjudication upon a will within the meaning of the statute. {McMul- .kin V. Bates, 46 How. 405, 409.) An action to restrain a defendant from violating a written agreement by which he covenanted to sell to the plaintiff certain articles manufactured by himself, and not to sell to others, and by which the plaintiff covenanted to sell the arti- cles and allow the defendant a price stipulated therefor, is not an .action to procure an adjudication upon an instrument in writing within the meaning of the statute. {G-ray v. liobjohn, 1 Bosw. 618.) Where an attachment has been issued and served, but has subse- quently been set aside, the plaintiff is not entitled to the additional allowance on recovering judgment. {IselinY. Graydon, 26 How. 95.) But it would be otherwise if the attachment had been vacated upon the giving of security by the defendant. ^ ^Hanover Nat. BanTc\. Linneworth, 7 Hun, 234.) It was held under the old Code that the allowance may be taxed although no property was attached. {Jack- son V. Figaniere, 15 How. 224) But it has recently been held that as the allowance authorized by section 3252 of the present Code, in cases where a warrant of attachment has been issued, is to be made upon the value of the property attached, there can be no allowance where no property is attached. {Fisher v. Eng- Msh, 4 Law Bulletin, 37.) The latter seems to be the true rule. No application to the court is necessary to obtain the addi. tional allowance given by the statute. The allowance follows the recovery of final judgment and costs by the plaintiff as a statutory right. {Hunt v. Middlebrook, 14 How. 300.) The al- iowance must be computed by the clerk upon the taxation of 543 Trial Practice. Additional allowance by the court. costs ; but the value of property required as the basis of the computation must be ascertained by the court, unless it has been fixed by the decision or report, or by the verdict of the jury on which the final judgment is rendered, except that in case of actual partition it must be determined by the connmissioners. (Code of Civ. Pro., § 3262.) All the sums awarded to the plain- tiff under section 3252 of the Code, cannot exceed in the aggre- gate two thousand dollars. (Code of Civ. Pro., §3254) SECTION XI. Additional Allowance by the Court. In general. — ^The Code provides that " in an action brought to foreclose a mortgage upon real property, or for the partition of real property, or in a difficult and extraordinary case, where a defense has been interposed in an action, or, except in the first and second judicial districts, in a special proceeding by certiorari to review an assessment, under chapter two hundred and sixty- nine of the laws of eighteen hundred and eighty, and the acts amending the same, the court may also, in its discretion, award to any party a further sum as follows ; 1. In an action to foreclose a mortgage, a sum not exceeding, two and one-half percentum upon the sum due, or claimed to be due, upon the mortgage, nor the aggregate sum of two hun- dred dollars. 2. In any action or special proceeding specified in this section where a defense has been interposed, or in an action for the par- tition of real property, a sum not exceeding five percentum upon the sum recovered or claimed, or the value of the subject matter involved. (Code of Civ. Pro., § 3253.) But all the sums awarded under the second subdivision of the section cited cannot exceed in the aggregate two thousand dol- lars. (Code of Civ. Pro., § 3253.) The provision of the Code above quoted has not rendered it obligatory upon the courts to grant an extra allowance of costs in every case it may deem difificult and extraordinary. The power to grant an extra allowance has been given in such terms as renders its exercise discretionary. {Hurd v. Farmers' Loan and Trust Co., 16 Week. Dig. 480; Riley v. Hulbcrt, 13 id. lou Additional Allowance by the Court. 54J In general. Morss V. Hasbrouck, id. 393.) The question whether a case is difificult and extraordinary within the meaning of the Code, rests substantially in the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are ad- dressed to the discretion of the judge that the appellate court rarely interferes. {Bryon v. Durrie, 6 Abb. N. C. 140; Morrison V. Agate, 20 Hun, 23; Proctor v. Soulier, 8 App. Div. 6g; Eaincs Vacuum Brake Co. v. Prosser, 88 Hun, 343; Burke v. Candee, 63 Barb. 552; Tolman v. Syracuse, etc, R. R. Co., 31 Hun, 403; Meyer Rubber Co. v. Lester Shoe Co., 86 Hun, 473.) In a long but not difificult trial, where no troublesome questions of law are in- volved, and the recovery is fully as large as the facts will war- rant, and it appears that the attorney for successful party is prosecuting for a share of the recovery, an extra allowance of costs will not be granted. (Allen v. Albany Ry., 22 App. Div. 222.) It has been held that, although a case is difificult and ex- traordinary, the court, in the exercise of its discretion, should refuse an extra allowance to the successful party where the case is an unfortunate one for the defeated party. [Losee v. Bullard, 54 How. 319) ; but, on the other hand, it has been held that this fact- should not be taken into consideration by the court. {Lane v. Van Orden, 63 How. 237; 11 Abb. N. C. 228.) Before the recent amendments of the Code, it was uniformly held that the allowance could only be made in an action and could not be made in a special proceeding. {Matter of Barnett, 52 How. 73; Rensselaer & S. R. R. Co. v. Davis, 155 N. Y. 145; Matter of Mc Adams 19 Hun, 292; German Savings Bank v. Sharer, 2C, id. 409; Power v. Village of Athens, 19 id. 165; Mat- ter of Simpson, 26 id. 459; Matter of Holden, 126 N. Y. 589; Matter of Grade Crossing Comm., 20 App. Div. 271.) But the Code has been amended so as to permit an additional allowance in a special proceeding by certiorari to review an assessment under chapter 269 of the laws of 1880, and the acts amending the same, except in the first and second judicial districts (Code of Civ. Pro., § 3253), and to the defendant in condemnation pro- ceedings, (Id., § 3372.) In the latter class of cases the allow- ance of additional costs does not depend, as in section 3253, upon an answer having been interposed, or upon the proceeding being 544 Trial Practick Where a controversy is submitted to tlie court by agreement. ■difficult and extraordinary, but an allowance of costs is authorized where no offer has been made, although the answer interposed has been withdrawn by stipulation. {Matter of Lake Shore & M. S. Ry. Co., 65 Hun, 538.) Where a controversy is submitted to the court by agreement and first appears in the form of an action upon the calendar of the general term, an extra allowance of costs cannot be graited. {People V. Fitchburg R. R. Co., 133 N. Y. 239; Fish v. Coster, 28 Hun, 64. But, see Kingsland v. Mayor, etc., of N. Y., 52 Hun, 98.) The phrase "real property," as used in section 3253 of the Code, is employed in its legal sense, and does not embrace leasehold interests, and the limitation of the amount of the extra allowance which may be awarded in an action for the foreclosure of a mort- gage upon real property does not apply to an action for the fore- closure of a mortgage upon a leasehold estate. An allowance may be made in such actions if shown to have been difficult and extraordinary. {Huntington v. Moore, 59 Hun, 351.) As a general rule there can be but one extra allowance to the same party in the same action. Thus, where an extra allowance is made on a decree for partition and sale, a further extra allow- ance cannot be made on the making of the decree confirming the sale and directing the distribution of the proceeds. {Brewer v. Brewer, 11 Hun, 147.) And though a case may have been tried several times, the successful party can be granted but one extra allowance. {Flynn v. Equitable Life Assurance Society, 18 Hun, 212; Union Trust Co. v. Whiton, 17 id. 593.) But where an action against joint tort-feasors has been severed on motion of the defendants, the fact that the plaintiff has been allowed costs and an extra allowance against one defendant does not preclude the court from granting an extra allowance as against the other defendant. {Abbott v. Johnstown, etc., R. R Co., 24 Hun, 135.) So in an action of ejectment where the plaintiff has recovered a judgment with costs including an additional allowance, which the defendant has paid and taken a new trial under section 1525 of the Code, and is again defeated, the court may make another extra allowance on the second trial, as by availing himself of the privi- lege given by the statute the defendant in effect commences or causes the commencement of a new action. ( Wing v. DeLaRionda, 131 N. Y. 422 ; Bolton v. Skriever, 47 St. Rep. 870.) ADDITIONAL ALLOWANCE BY THE CoURT. 545 To whom granted. The court may grant an extra allowance of costs notwithstand- ing an offer of judgment for a specified sum and costs and its acceptance after answer. (Coates v. Goddard, 2 Jones & Sp. Ii8; Safety Stsam, Generator Co. v. Dickson Mfg. Co., 6i Hun, 335.) And where the defendant has made an offer of judgment which has not been accepted and on the trial the plaintiff has failed to recover a judgment more favorable than the offer, the defendant is not only entitled to the ordinary costs but may be granted an additional allowance. {Landon v. VanEtten, 57 Hun, 122; Com- missioners of Pilots v. Sp^fford, 3 Hun, 57; Brady v. Durbron, 2 E. D. Smith, 78. But, see contra, Magnin v. Dinsm-ore, 47 How. II ; McLees v. Avery, 4 id. 441.) The plaintiff cannot have an extra allowance in such case. {Penfield v. James, 56 N. Y. 659.) The plaintiff may be required to pay an extra allowance where he discontinues before trial on payment of costs {Coffin v. Coke, 4 Hun, 616; Tubbs v. Hall, 12, Abb. [N. S.J 237), even where the court imposes the payment of costs as a condition of discontinu- ance {Robbins v. Gould, 1 Abb. N. C. 133. See Dambmann v. Schulting, 6 Hun, 29), and there is an objection to jurisdiction'. {Bright V. Milwaukee, etc., R. R. Co., i Abb. N. C. 14.) It is enough that the plaintiff has terminated the action in such form that the defendant can lawfully claim the payment of his costs on. such termination and enforce their payment. {Coffin v. Coke, 4 Hun, 616.) But an additional allowance cannot be granted upon sustaining or overruling a demurrer with leave to answer over on payment of costs; but only, j/ at all, when the final judgment is pronounced that unconditionally terminates the action and fixes the right, of the successful party to tax his costs absolutely under the Code. {DeStuckle v. Tehuantepec Ry. Co., 30 Hun, 34 ; 65 How. 288.) A demurrer is a "defense" within the meaning of the term as used in section 3253 of the Code. {Winne v. Fanning, 19 Misc. 410; New York El. R. R. Co. v. Harold, 30 Hun, 466) To whom granted. — The additional allowance provided for by section 3253 of the Code can be granted only to the party or parties who recover the ordinary costs of the action. {Devlin v. Mayor, 15 Abb. [N. S.] 11; Jordan v. Hess, 54 St. Rep. 326; Sherburne v. Taft, 49 St. Rep. 771 ; Couch v. Millard, 41 Hun. 2124 35 546 Trial Practice. To whom granted. This is indicated by the language of that section ; for although it authorizes the court to award the allowance "to either party," it is a " further sum" that is to be awarded ; or, in other words, a sum in addition to the ordinary costs of the action. If only one of the parties to the action becomes entitled to costs, the allowance must be confined to that party. But when the parties on each side of the litigation are successful, and are each entitled to ordinary costs, the court may, in a proper case, grant an additional allowance to both plaintiff and defendant. {Weed V. Paine, 31 Hun, 10.) Where the defendant admits the plaintiff's cause of action and sets up in his answer a counter-claim upon which he asks an affirmative judgment, and obtains on the trial a verdict upon his counter-claim which maierially reduces the plaintifl's recovery, the latter is not entitled to an extra allowance of costs. {New York, L. E. & W. Ry. Co. v. Car hart, 39 Hun, 363 ; Commercial Nat. Bank v. Hand, 27 App. Div. 145.) Where costs of an appeal only, and not general costs follow a judgment, the party in whose favor it is rendered is not entitled to an extra allowance. {Savage v. Allen, 2 N. Y. Sup. Ct. [T. & C] 474.) And where the plaintiff recovers six cents damages in an action at law for a money demand, the defendant cannot be ■ granted an extra allowance based upon the amount of the plain- tifl's claim. {Murray v. Robinson, 9 Hun, 137; Pinder v. StootJwff, 7 Abb. [N. S.] 433.) Where a plaintiff recovers judgment and costs against all the defendants in an action other than for foreclosure or partition, but one of the defendants recovers a judgment against his co- defendant upon matters litigated between them in the action, such defendant does not recover costs, of course, and unless they are expressly awarded to him, cannot be granted an extra allow- ance, although the action is difficult and extraordinary. But the plaintiff may have an extra allowance in such action {Devlin v. Mayor, 15 Abb. [N. S.] 31), unless the whole contest was between the defendants, and the case was not difficult and extraordinary so far as he was concerned {Poillon v. Cudlipp, 50 How. 366), in which case neither party can have the allowance. An allowance against executors depends on the same inquiry as Additional Allowance by the Court. 547 In an action for foreclosure. the question of the recovery of costs against them. {Niblo v. Binsse, 31 How. 476; 47 Barb 435. Sec Mersereau v. Ryerss,i2 How. 300; ante, p. 512.) The guardian ad litem of an infant party cannot be granted an extra allowance payable out of a trust fund in which his ward has no present interest. {Matter of Holden, 126 N.Y. 589.) So in an action of partition, an extra allowance cannot be granted to the guardian ad litem of an infant party who had no interest in the land, nor to the wife of the plaintiff who has only an inchoate right of dower. {Dor emus v. Crosby, t6 Hun, 125.) In an action for foreclosure. — The Code expressly centers upon the court the power to grant to any party recovering costs in an action brought to foreclose a mortgage upon real projjerty, a further sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of $200. (Code of Civ. Pro., § 3253.) But if after the cause is at issue and has been noticed for trial, the defendant obtains a statement from the plaintiffs attorney of the amount due, including the costs of the action, and tenders this amount, which is accepted and a satisfaction-piece delivered, it will be too late to afterward apply for an extra allowance. {Lockman v. Ellis, 58 How. 100.) It might be otherwise if the tender was accepted conditionally, leaving the plaintiff's right to an allowance in ad(fitk>a to costs to be thereafter determined. (li) But it is held that in case the plaintiff declines tls*- tender and proceeds to judgment, the additional allowance may be granted notwithstanding the tender, {New York Fire da Marino Ins. Go. v. Burrell, 9 How. 398 ; Astor V. Palache, 49 id. 231. See Bartow v. Cleveland, 16 id. 364.) If the defendant makes an offer of judgment which is not accepted, and on the trial the plaintiff recovers a more favorable judgment than was offered, but on appeal the amount is reduced to a sum less than the offer, and a re-taxation ordered, the plaintiff may be allowed full costs, but no extra allowance. {Penfield v. James, 56 N. Y. 659.) Tn partition. — Tn an action for the partition of real property, the court may, in its discretion, award to a party entitled to costs a further sum based upon the value of the property forming the subject-matter of the suit. 548 Trial Practice. In difficult and extraordinary cases. But there can be but one extra allowance granted to the same party to the action {Brevjer v. Brewer, ii Hun, 147), and it seems to be an open question whether an allowance may be made to the parties on each side of the action. In case of actual partition the right to grant an extra allowance to both parties is a matter of serious doubt; but if a sale is directed the right seems to be reasonably clear. (Weed v. Paine, 31 Hun, 10. See Doremus v. Crosby, 66 Hun, 125.) An extra allowance should not be granted to a party having only an inchoate right of dower in her husband's share, nor to the guardian ad litem of an infant having no present interest in the land {Doremus v. Crosby, 66 Hun, 125), nor against an unsuccessful plaintiff who is in strait- ened circumstances and has brought the action in good faith to test the right of heirs to a division of the real estate. ( VanBrunt V. VanBrunt, 14 St. Rep. 887.) In difificult and extraordinary cases. — The statute gives the court discretionary power to award to any party an additional allowance of costs in a diflScult and extraordinary case, where a defense has been interposed, without limitation as to the nature of the action. (See ante, p. 542) A demurrer is a defense within the meaning of the statute. {New York Elevated R'y Co. v. Har- rold, 30 Hun, 466; Moulton v. Beecher, i Abb. N. C. 193, 245; 52 How. 230; II Hun, 192. Contra, Eldridge v. Strem, 7 Jones & Sp. 295.) To authorize an additional allowance of costs in a case it must be both difficult and extraordinary, involving something unusual, requiring much labor and previous preparation by counsel. {Dun- can w. DeWitt, 7 Hun, 184; Gillespyv. Bilbrough, 15 App. Div. 212.) The court will discriminate between cases which are dif- ficult and extraordinary and those which are common and or- dinary {Fox V. Gould, 5 How. 278), and taking into consideration the fact that the expenses of litigation have become a great bur- den upon those compelled to go into courts of justice to settle their controversies, will be careful not to add to those burdens except for good and sufficient reasons {Giliespy v. Bilbrough, 15 App. Div. 212), and even where there is a recognized deficiency in compensation for professional services will not supply the de- ficiency by construing the common and ordinary in actions as difficult and extraordinary. {Powers v. Wolcott, 12 How. 565.) Additional Allowance by the Court. 549 No allowance made in a simple case, involving no intricate questions of law. A simple case, involving no intricate questions of law, and oc- cupying but a short time in the trial, is not one in which an allowance should be made. (Adaj/ts v. Stern, 29 Hun, 280, 282; Gillespy V. Bilbrough, 15 App. Div. 212.) And the mere fact that such a case required several days for trial will not authorize the allowance, especially where the plaintiff has recovered all if not more than he is entitled to and his attorney has a contingent interest in the recovery. {Allen v. Albany Ry, 2?. App. Div. 222.) And a case made difHcult and extraordinary by issues joined on the averments by the plaintiff of misconduct and bad faith on the part of the defendant, which issues are subsequently abandoned, is not a proper case for an allowance to the plaintiff. {Hinman v. Ryder, 12 Jones & Sp. 330.) So if the case has been rendered extraordinary solely by the length of time consumed in litigating unfounded claims of small amount, set forth in the complaint, in no way connected with or arising out of the claim upon which the recovery is had, the plaintiff is not entitled to an extra allowance. {Sajids v. Sands, 6 How. 453.) And where the protracted litigation arose out of the contest made by certain of the defendants, the additional allowance, if granted, may prop- erly be charged against them. {Chester v. Jumel, 24 St. Rep. 230.) In determining whether or not a suit is an extraordinary one, the court will take into consideration the general character of the cause, the nature and extent of the litigation involved in it, the period of its continuance, the trouble of conducting it in respect to witnesses, counsel and parties, their situation and num- ber, traveling and other expenses, the time consumed in the trial and the extent of the litigation afterward. (Powers v. Wolcott, 12 How. 565.) The court may also take into consideration the amount of the recovery as compared with the amount claimed upon the trial. (See Meyer Rub- ber Co. V. Lester Shoe Co., 92 Hun, 52.) But each case must necessarily depend upon its own peculiar features and cir- cumstances, and no universal rule can be established which will de- termine what are and what are not difficult and extraordinary cases. {Saclcett V. Ball, 4 How. 71.) Whether an action should be so re- garded rests substantially in the discretion of the judge to whom the application is made {Bryon v. Durrie, fi Abb. N. G»135 ; Morrison 550 Trial Practice, Basis of compatadon. V. Agate,, 20 Hun. 23), and an appellatf court will rarely interfere with the exercise of that discretioQ. {Tahnan v. Syracuse, etc., R. li. Co., 31 Hun, 397.) "Where, on the trial of a difficult and extraordinary case, no extra allowance is granted, and on appeal the judgment is reversed and a new trial ordered, an extra allowance may be granted to the party succeeding in the new trial, although such new trial was not difficult or extraordinary. {Howell v. Van Siclen, 4 Abb. K C. 1.) The fact that on the first trial the application was denied is no ground for denying the application on the second triaL {Fox v. Fox, 24 How. 385.) Basis of computation. — In an action to foreclose a mortgage the basis of the allowance is the sum due or claimed to be due upon the mortgage ; in any other case tho basis is the sum recovered, or claimed, or the value of the subject-iT>.?ti8r involved. (Code of Civ. Pro., § 3253.) The provision as to a discretionary allowance contemplates a liti- gation wherein rights of property are involved and values may be predicated of the subject. The importance of a litigation in any other than its pecuniary aspect does not afford the basis of an extra allowance; and although a litigation may seem to come within the spirit of the provision, yet if the subject-matter is not capable of a money value, or the value is not shown, an allowance is not author- ized. {ConaugUy v. Saratoga Co. Bank, 92 N. Y. 401.) If the rights in controversy have no money value there can be no allow- ance. {People V. Albany & Susquehanna R. R. Co , f, Lans. 25; Coatesv. Goddard, 2 Jones & Sp. 118; Musgrave v. Sherwood, 29 Hun, 475; Weaver v. Ely, 83 N. Y. 89; Grissler v. Stuyvesant, 67 Barb. 81; Spoffordv. Texas Land Co., 9 Jones & Sp. 228; People v. Giroux, 29 Hun, 248; Voorhis v. French, 15 Jones & Sp. 364; Palmer v. DeWitt, 42 How. 466; Christopher &■ Tenth St. R. R. Co. V. Twenty-third St. Ry. Co., 48 St. Rep. 805; Bradley v. Walker, 44 St. Rep. 214; People v. Adams, 128 N. Y. 129.) The word "involved" is used in a legal sense, and means the pos- session, ownership, or title to the property or other valuable thing which is to be determined by the result of the action; and does not mean the property which may be either directly or remotely affected by the result. {Conaughfy v. Saratoga Co. Bank, 92 Additional Allowance uy the Court. 551 The basis of computation. N. Y. 401. See Burke v. Candee, 63 Barb. 552; Spoffordv. Texas Land Co., 9 Jones & Sp. 228; Donovan v. Wheeler, 67 Hun, 68; Dr. Jaegers Sanitary Co. v.Le Boutillier, 63 Hun, 297.) Where the subject-matter of an action is the right to compel a railroad corporation to carry a highway across lands occupied by it, the amount of the expense of a crossing at grade is the proper basis of computing the amount of an extra allowance. {Rochester, etc , R. R. Co. V. City of Rochester, 17 App. Div. 257.) In an action to restrain the defendant from operating its road by the trolley system, the money value of the right sought to be enjoined is the proper basis for computation of the amount of an extra allowance. {Hudson River Tel. Co. v. Watervleit T. & R. Co., 135 N. Y. 393.) In aij action to compel the defendant to lower a dain which sets back water upon the plaintiff's land, the basis of an allowance is the damages recovered, not the value of the plaintiff 's land. {Rothery V. New Yffrk Rvbher Co., 90 N. Y. 30 ; 24 Hun, 172.) In an action by a legatee to compel an executor to account, and distribute, the legatee's interest is the subject-matter involved. ( Weaver v. Ely, 83 ]^. Y. 89.) In an action by a judgment creditor to set aside cou- ■^'eyances, the basis for an extra allowance to the plaintiff is the amount due on his judgment, not the value of the land. {^Potter v. Farring- ton, 24 Hnn, 551.) In an action to establish the plaintiffs right to one-fourth of the value of a lease, the value of the quarter in snit is the only basis for an allowance. {Struthers v. Pearce, 51 If. Y. 365.) In an action to restrain the infringement of an easement in air, etc^ secured by a covenant, the value of the easement is the sub- ject matter involved. {Latbimer v. Lwermore, 72 N.Y. 174.) In an action to restrain the construction of a pier and to compel its re- moval, the subject matter involved is the right to erect the pier, not the value of the pier. {People v. New York <& Staten Island Ferry Co., 68 N. Y. 71.) In an action to prevent the use of certain premi- ses for the prosecution of a certain business in violation of a covenant in a deed, and to recover damages, the value of the premises affected by the action is not the subject-matter involved. {Atlantic Dry Dock Co. V. Libby, 45 IST. Y. 499.) In an action to determine the validity of a lease of a railroad, which involves the right to its pos- eession and use, the subject-matter involved is the lease ; and its value, a'ld not the value of the railroad or its rental value, should be 552 Trial Practice. Tbe basis of computation. talken as tlie basis of the computation. (Vgdensburgh, etc., Jti. K. Co. V. Vermont & Canada R. R. Co., 63 N. Y. 176.) In an action to dissolve a corporation and for a receiver, the subject-matter in- volved is the existence of the franchise, and the value of the fran- chise must be made the basis of the computation. {People v. Rock- away Beach Improvement Co., 28 Hun, 356.) Where no sum has been claimed or recovered by either party, the right to an allowance is based altogether upon the value of the snb- ject-matter involved. The pleadings famish the sole evidence as to what was the subject-matter involved, and its value must be estab- lished by competent evidence. {Gonaughiy v. Saratoga Co. Bank, 92 ]Sr. Y. 401.) If the vahie of the subject-matter is not shown, an allowance cannot be granted. {Peoples. Genesee VaUey R. R. Co., 30 Hun, 565 ; Heilman v. Lazarus, 90 IST. Y. 672; 12 Abb. K C. 19 ; 65 How. 95 ; PeopJs v. Rockaway Beach Improvennent Co., 28 Hun, 35G ; Ogden.'iburgh, etc., R. R. Co. v. Vermont <& Canada R.R Co., 63 N. Y. 176; Brack v. Brooklyn Heights R. R. Co., 32 App. Div. 468; Koehler v. Brady, 22 App. Div. 624; Hanover Fire Ins. Co. V. Germania Fire^Ins. Co., 138 N. Y. 252.) But a party claiming error in the granting of an allowance without proof of value must establish the error, as otherwise it will be presumed that the allowance was a proper one upon the facts before the trial court. {Everinghamv. Vanderbilt, 12 Hun, 75. Sss Dresser V. Jennings, 3 Abb. 240.) Where the plaintiff is nonsuited in an action brouglit against the trustees of a school district for levying upon and taking personal property for a tax, the basis of an allowance is the value of the property proved upon the trial to have been taken, not the amount of damages claimed in the complaint. {Saratoga c& Washington R, R. Qo. V. McCoy, 9 How. 339.) Where in an action for trespass to real property the complaint alleges that the title to lands is involved,, and it clearly appears that such title constituted the paramount sub- ject of investigation, the allowance may be based upon the value of the lands instead of upon the damages. ( Warren v. Buckley, 2 Abb. N. C. 323. And see Williams v. Western Union Tel. Co.y 61 How. 305.) In a proper case the plaintiff may have an allowance, not only upon the sum recovered by him, but upon a counter claim whicli the defendant has failed to establish. {Woonsocket Rubber Co. v. Additional Allowance by the Court. 653 Amount allowed. Rubier Clothing Co., 62 How. 180; Barclay v. Culver, 66 id. 342.) But he is not entitled to an allowance upon a counter-claim if it was defeated upon evidence necessarily introduced to establish his cause of action. {Devlin v. Mayor, 15 Abb. [N. S.] 31.) "Where a de fendant has established a counter-claim and recovered a balance found due him, he may have an allowance not only upon the amount recovered, but also upon the amount claimed by the plaintiff. [Vilmar v. Schall, 6i N. Y. 564.) Where the validity of bonds is the question involved, an allow- ance based upon their value may be granted, whether their validity was successfully assailed {Sickles v. Richardson, 14 Hun, no), or otherwise. {Comins \. Supervisors of Jefferson, 3 N. Y. Sup. Ct. [T. & C] 2q6.) Amount allowed. — In an action to foreclose a mortgage upon real property, the court may grant as an extra allowance of costs a sum not exceeding two and one-half percentum upon the sum due, or claimed to be due, upon the mortgage, but not exceeding in the aggregate the sum of two hundred dollars. (Code of Civ. Pro., § 3253.) The allowance which may be granted is limited to that amount although the case may be difficult and extraordinary. {Waterbury v. Cordage Co., 152 N. Y, 610; Hunt V. Chapman, 62 N. Y. 333, 338; Ferris v. Hard, 15 Civ. Pro. R. 171; O'Neill. Gray,ig Hun, 566; Rosa v. Jenkins, ^i Hun, 384.) The same limitation applies where the action is to foreclose a mortgage upon both real and personal property where the chief object of the action is to foreclose the mortgage upon the real property. {Waterbury v. Cordage Co., 152 N. Y. 610.) But this limitation does not apply to an action to foreclose a mortgage upon a leasehold estate, as that is not " real property" within the meaning of section 3253 of the Code. {Huntington v. Moore, 59 Hun, 351.) In the other cases specified in section 3253 of the Code, the allowance cannot exceed five percentum upon the sum recovered, or claimed, or the value of the property involved (Code of Civ. Pro., § 3253), nor can the allowance exceed the sum of two thousand dollais. (Id., § 3254; Waterbury v. Cordage Co., 152 N. Y. 610, 617. But see Weed v. Paine, 31 Hun, 10.) Extra allowances are given, by way of indemnity, to the sue- 554 Trial Practice. The application for the allowance. cessful party {Burke v. Candee, 63 Barb. 552). not for the sole purpose of punishing the adverse party {Anonymous, 12 How. 317), and, therefore, the court, in fixing the amount of the allowance, should limit it to a sum which will indemnify the suc- cessful party. The maximum sum named is not the measure, but the limit. {People v. New York Cent. R. R. Co., 30 How. 148.) The statute fixes the maximum allowance, and within this the court must fix the amount to be allowed. Subject to the limitation, the sum will depend upon the proper deductions from proofs submitted as to the indemnity needed for actual expenses in the action, necessarily or reasonably incurred beyond the tax- able costs. {Burke v. Candee, 63 Barb. 552; Delcomyn v. Cham- berlain, 48 How. 409, 413. See, also, People v. New York Cent. R. R. Co., 30 id. 148; Gori v. Smith, ^ Abb. [N. S.] 51; 6 Rob. 563.) It is within the discretion of the Special Term to fix the rate of the allowance so long as the maximum limit is not ex- ceeded. {Union Bank v. Mott, 13 Abb. 247.) The application for the allowance. — The general rules of practice provide that applicatiois for an additional allowance can only be made to the court before which the trial is had, or the judgment rendered, and shall in all cases be made before final costs are adjusted. (Gen. Rule 45; Winne v. Fanning, 19 Misc. 410; Toch V. Toch, 9 App. Div. 501; Hun v. Salter, 24 Hun, 640; Van Renselaer v. Kidd, $ How. 242; Saratoga & W. R. R. Co. V. McCoy, 9 id. 339; Osborne v. Betts, 8 How. 31; Wiley v. Long Island R. R. Co.,Z?, Hun, 177.) But this is a rule of prac- tice only, and the objection that the application is not made to the court before which the trial is had and to the justice who presided at the trial, does not go to the jurisdiction of the court, and will be deemed waived if not taken at the time of the argu- ment of the motion. {Wiley v. Long Island R. R. Co, 88 Hun, 177; Wilber v. Williams, 4. App. Div. 444.) Where the action was tried in the first judicial district, the ap- plication for an extra allowance must be made in that district, although ihe justice before whom the action was tried resides in another district. {Bear v. American Rapid Tel. Co., 36 Hun, 400; Hun V Salter, g2 N. Y. 651.) A remedy of a party given by statute cannot be taken away Additional Allowance by the Court. 555 At what term to apply. by a rule of the court ; and where the application, for any cause, ■cannot be made before the judge who tried the cause, it may be made at a proper term held by another judge. {Mann V. Tyler, 6 How. 235.) Where exceptions are ordered to be heard sX the General Term in the first instance after a verdict directed for the plaintiff, and the General Term orders a new trial, and on appeal the Court of Appeals a£&rms the order of the General Term and orders judgment absolute against the plaintiff, the Special Term has power, upon the remittitur, to entertain a mo- tion for an additional allowance. {Parrott v. Sawyer, 26 Hun 466.) But where a jury finds for the plaintiff, and the court grants him an additional allowance, and the General Term re- verses the judgment entered on the verdict, and on appeal to the Court of Appeals judgment absolute is rendered against the plaintiff, with costs, the Special Term has no power upon the remittitur to grant an additional allowance. {Eldridge v. Strenz, 7 Jones &Sp. 295; Monnett V.Mars, 54 St. Rep. 322.) If the application is made at the term at which the cause is tried, no notice is necessary. {Mitchell v. Hall, 7 How. 490.) But if the application is made afterward the usual notice must be given. {Mann v. Tyler, 6 How. 235; Woodruff v. N. Y., L. E., etc., R. R. Co., 31 St. Rep. 7.) The motion must be made before final costs are adjusted (Rule 45), but if a party has inadvert- ently taxed his costs before applying for an additional allow- ance, the court may, in its discretion, set aside the taxation for the purpose of removing this objection to the application. {Deitz V. Parish, 1 1 Jones & Sp. 87; Thompson v. .S'^ Nicholas Nat. Bank, 54 Hun, 393.) The fact that pending an application for an additional allow- ance, the moving party has received from his adversary costs imposed as a condition of discontinuance of the action does not necessarily prejudice the motion. {Moulton v. Beecher, i Abb. N. C. 193, 245.) Where the trial was before a referee the court, and not the ref- eree, grants the allowance {Main v. Pope, 16 How. 271 ; Howe v. Muir, 4 id. 252); and the motion must be made at Special Term upon notice. (Id. Ste Sprang v. Snyder, 6 How. 11. But see Niver v. Rossman, 5 id. 153.) Rule 45 cannot be construed to prevent an application for an additional allowance in an action 556 Trial Practice. The application must be made upon papers showing the facts. tried by a referee, since a rule cannot take away a right given by statute. (Td.j In some localities it is the general practice in equity cases for the referee to make provision for an extra allow- ance in his conclusions of law. (Gurney v. Union Transfer, etc., Co., 29 St. Rep. 278.) The application must be made upon papers showing the facts- which the party claims entitle him to the allowance, as the order is appealable, and it is necessary that the facts should be so pre- sented that they may be passed upon by the appellate court. (Gori V. Smith, 6 Rob. 563; 3 Abb. [N. S.] 51. Se& Peuple v. New York Cent. R. R. Co., 30 How. 148.) Affidavits may be presented upon the question whether or not the case was difficult and extraordinary {Burke v. Candee, 6^ Barb. 552, 554), and for the purpose of showing the value of the subject-matter involved. {JPeople V. Genesee Valley Canal R.R. Co., 30 Hun, 565.) The court may determine the question whether an allowance shall be made upon the facts disclosed on the trial or brought to its attention by affidavits. {Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252,) Upon an application by the defendant for an extra, allowance in an action at law the amount of damages alleged and demanded in the complaint is the sum "claimed" and " the value of the subject-matter involved" in the absence of proof to the contrary, and may properly be taken as the basis of an allowance.. The averments or statements of fact in the complaint are admis- sible in evidence against the pleader. (Sentenis v. Ladew, 140 N. Y. 463 ) But where in an action in equity there is no evidence of value of the property right involved presented to the court on the application for an extra allowance save an averment of such value in the pleading of the party against whom the allowance is- claimed, and that allegation of value is denied in the pleadings- of the moving party, the averment upon one side is neutralized by the denial on the other, and there is no base for computing the amount of an allowance. {Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252.) Where the trial was before a referee his certificate stating facts and not mere conclusions {Gould v. Chapin, 4 How. 185, 189), may be furnished to the court to show what has been done in the case. {Maine v. Pope, 16 How. 271.) While it is the usual and better practice not to grant an allowance without this certificate,. Disbursements. 557 In general. Still the absence of it is not jurisdictional and does not deprive the court of power to hear the motion and determine for itself whether the case falls within the language of the Code. {J)ode v. Manhattan Ry. Co., 70 Hun, 374.) The moving papers should show the general character of the cause ; the nature and extent of the litigation involved in it; the period of its continuance ; the trouble of conducting it in respect to witnesses, counsel and parties ; their situation, number, and the amount of their traveling and other expenses ; the time con- sumed in the trial ; the extent of the litigation afterward ; or any other fact which the court may properly take into consideration upon the motion. The motion may be opposed upon any ground inconsistent with the case made by the moving party, or upon an independent state of facts tending to show that the granting of the motion would be inequitable and unjust. If the motion is granted, the additional allowance becomes part of the taxable costs of the action. {Coates v. Goddard, 2 Jones Sc Sp. 118; Coffin V. Coke, 4 Hun, 616.) SECTION XII. Disbursements. In General. — At common law neither costs nor disbursements were allowed to the prevailing party in any case, and their allow- ance has always been regulated by statute. It is therefore neces- sary for a party claiming the right to tax an item of disbursement as a part of his costs in an action to be able to point to some statute authorizing the clerk to allow and tax the item. (Equi- table Life, etc., Soc. v. Hughes, 125 N. Y. 106; Whitney v. Roe, 75 Hun, 508.) The Code provides that a party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements and specifies the various classes of expenditures which may be taxed as costs. (Code of Civ. Pro., § 3256.) The statute does not however purport to furnish the only statutory rule but provides generally that "This article does not affect any provision contained elsewhere in this act, or in any other statute remaining unrepealed after this act takes effect, whereby the amount of costs is specially fixed in a particular case otherwise than as prescribed in this article." (Id., § 3261.) 558 Trial Practice. Witness' fees. As a general rule, disbursements cannot be recovered if costs cannot. {Rust v. Hauselt, 14 Jones & Sp. 38 ; S Abb. N. C. 148.) A plaintiff who recovers in the action, but whose recovery is not sufficient to entitle him to costs, cannot recover disbursements, but must pay the defendants disbursements if the latter is entitled to costs. {Peet \. Warth,\'?>o&^.(>^l^ A plaintiff who recovers, but is entitled to no more costs than damages, is limited, as to his recovery of both costs and disbursements, to the amount he recovered as damages. {Warren v. Chase, 8 Misc. 520.) Thus, if he recover six cents damages, he can tax but six cents for costs and disbursements. {Marsullo v. Billotto, 55 How. 375 ; Stone v. Duffy, 3 Sandf. 761.) Where, by reason of an offer of judgment, the plaintiff recovers the costs accruing before the offer, and the defendant those accru- ing thereafter, the costs to be taxed on either side include, as a matter of course, the necessary disbursements. {Mangin v. Dins- more, 15 Abb. [N. S.] 331 ; 46 How. 297.) No item of disbursements in a bill of costs can be allowed unless it was necessarily incurred, and is reasonable in amount. (Code of Civ. Pro., § 3267.) A necessary disbursement is such as a party is compelled to make or incur incident to the regular proceedings in the action, and to bring it to trial according to the course and prac- tice of the courts. Disbursements made under a legal compulsion, for the purpose of obtaining necessary services, are properly included in the judgment ; but where there is no compulsion and the pay- ment is voluntarily made, the disbursement cannot be said to have been necessary. {Delcomyn v. Cliamherlain, 48 How. 409.) The Code contemplates actual disbursements — that is, an actual payment of money by the successful party. ( Yeeder v. Mudgett, 27 Hun, 519.) Witness' fees. — The legal fees of witnesses may be included in the bill of costs as a necessary disbursement (Code of Civ. Pro., § 3256) ; but the object is reimbursement for expenses actually and in good faith incurred, not profit. {Haynes v. Moslier, 15 How. 216.) Wit- ness' fees actually paid cannot be taxed unless they were necessarily paid. (Code of Civ. Pro., § 3267.) A party cannot call an unlimited number of witnesses and charge the expense upon his opponent (See Irwin v. Deyo, 2 Wend. 285) ; but unless there is a clear disparity between the end to bo accomplished by the proof and the instruments Disbursements. 559- Witness' tees. foritsaccomplishment.thecourt will not interfere. (Lowerre v. Vail^ 5 Abb. 227 ) The payment of fees to witnesses by u party after a case is disposed of in his favor, when he is not legally liable to pay them, does not entitle him to an allowance of such fees as a part of the costs of the case. {Agricultural Ins. Co. v. Bean, 45 How. 444.) And where a cause was a referable one and the party knew that according to the ordinary practice of the court it would be referred, and he was requested by his adversary, before the Circuit, to consent to a reference, he cannot tax the fees of witnesses attending the Cir- cuit at which the cause was referred. {Pike v. Nash, 16 How. 53.) A charge for witnesses at a term at which the party had reason to know his cause was not ready for trial will be disallowed {Kohn V. Manhattan Ry. Co., 8 Misc. 421.) Where a day calendar of the trial term is prepared, it is unneces- sary to have witnesses in attendance except on days when the cause is on the calendar, and therefore attendance fees can be taxed only for those days, unless the witnesses reside at a dis- tance, or it was necessary to subpoena a witness to prevent his being absent during the trial term, or some similar grounds exist. {Ehle v. Bingham, 4 Hill, 595; Curtis v. Button, 4 Sandf. 719; Allen V. Mahon, i Abb, N. C. 468. See Wheeler v. Ruck- man, 5 Rob. 702.) But if a witness is necessarily subpoenaed for the first day of the trial term, an attendance fee may be taxed for each day until the cause is tried, including Sunday. {Muscott V. Runge, 27 How. 85; Wheeler v. Ruckman, 5 Rob. 702.) If a witness attend, either by virtue of a subpoena or a special request, a liability to pay his legal fees attaches, and if he were a necessary witness, such fees are taxable (Id.; Wheeler v. Losee, 12 How. 446); but if witnesses are not paid their fees in advance or daily, or their expenses of attendance paid or provided for as they are incurred, it is a strong circumstance against the allow- ance of their fees. {Agricultural Ins. Co. v. Bean, 45 How. 444,) While it is not necessary to subpoena a witness, or that a witness in attendance be sworn, yet where it is sought to tax the fees of a witness on the ground that he attended pursuant to the request of the party, or of a witness not sworn, a special affidavit must be produced before the taxing officer. (See Kohn v. Manhattan Ry. Co., 8 Misc. 421; Robitzek v. Hecht, 3 Civ. Pro. R. 156; Durant V. Abendroth, 48 Hun, 16.) 560 Trial Practice. Witness' fees. Fees paid to a witness on snbpcBnaing liim cannot be recovered back although the witness went but a part of the distance and returned home on being informed that the cause would not be tried, and there- fore such fees are taxable. {Ford v. Mmiroe, 6 How. 20i; lioth v. Meads, 20 id. 287. See Claries v. Staring, 4 id. 243.) But if a witness, duly subpcenaed, does not arrive until after the cause is tried {Booth V. Smith, 5 Wend. 107. But see Anonymous, 3 Hill, 457), or departs from the court without leave before the cause is brought on {EhU V. Bingham, 4 Hill, 695), the fees paid him may be recovered back, and the party subpoenaing him cannot recover them of his adversary. If a party permits one of his witnesses to leave he most present to the taxing officer a special affidavit showing why the ■wit- ness was subpoenaed, and why he was not sworn. {DovMngY. Busk, 6 How. 410.) A witness need not testify in a cause unless his legal fees are paid, and, therefore, the fees of a witness testifying in more than one cause between the same parties at the same term, are taxable in each cause. {Hicks V. Brennan, 10 How. 304; Vence v. Speir, 18 id. 168.) But two defendants taxing separate bills of costs cannot tax for the same witness unless each subpcenaed him or requested him to attend. {Taaks v. Schmidt, 25 How. 340.) A party to an action or a special proceeding is not entitled to a fee for attending as a witness therein in his own behalf, or in behalf of a party who pleads jointly or is united in interest with him; and an attorney or counsel in an action or a special proceeding is nat entitled to a fee for attending as a witness therein in behalf of his client. (Code of Civ. Pro., § 3288.) But if a party make hifi adversary a witness he must pay him his legal fees. 'iUewleti v. Brown, 7 Abb. 74; 1 Bosw. 655.) It has been held that an attorney, though not employed in the case, is not entitled to fees as a witness although subpcenaed unless it be shown that he attended the court as a witness and not as an attorney, unless he was sworn; and that, if sworn, he is entitled to his fees for that day although he was not subpoenaed. {Agricvitural Ins. Co. v. Bean, 45 How. 444.) Witness' fees cannot be allowed for the attendance of the coan^ clerk where he was not paid or sworn as a witness, did not prodnee any paper or document for the party, and attended the Circnit in tlie capacity of cleik thereof. (Id.) Fees for ..witnesses examined abroad by commission can oaly be taxed at tbe-statntory rates unless Disbursements. 561 Fees of referees and other officers. rrocf be made that the fees of witnesses in the country where \he deposition was taken were regulated by law, and that their attendance could not be compelled except by payment at those rates, [punhain. V. Sherman, 11 Abb. 162 ; 19 Plow. 572.) Fees of referees and other officers. — The legal fees of referees and other officers are taxable. (Code of Civ. Pro., § 3256.) But where the referee's services were rendered simultaneously in two actions, and his charges are for services in both, one-half of the fees are taxable in each action. (Oolton v. Sim,mons, 11 Hun, 75, 78.) Where the referee's report is set aside for misconduct on his part his fees cannot be taxed. Where costs are awarded by the court upon a reference to ascertain the damages sustained by reason of an injunction (Code of Civ. Pro., §§ 623, 621), or upon a special reference in certain cases (Id., § !S2T), or upon a reference of a question not embraced in the issues, inci- ■dentally arising (Id., § 1015), such costs include the nec-esfary ■disbursements for referee's fees (Id., § 3251, subd. 3), and when they are awarded to abide the event of the action (Id., § 3236), or where they 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 the costs awarded to the adverse party, as the case requires. (Id., § 779 ; Jones v. Eatton, 11 Abb. K C. 114.) ITpm a Tuotion for a discovery of books, etc., where a referee is appointed to direct and superintend it, a fixed sum not exceeding $20 may be added to the costs of the motion for the fees of tin referee. (Code of Civ. Pro., § 807.) The fees of officers which may be taxed are fees for services which they themselves (see Chase v. Price^ 9 Abb. Ill ; 17 How. 318) have performed in the action, for which they actually charge and are entitled to charge. They are taxable at the rates allowed by statute (Code of Civ. Pro^ §§ 3280, 3281), and are for services performed before judgment. (Yeeder v. Mtidffeity^T Kvm, 519.) The services for which the clerk of the court is entitled to fees are defined in section 3301 of the Code of Civil Procedure. Fees paid to the sheriff for services in the action, for which he is entitled to fees, are taxable, and only those. {Moore v. Cochroji, 9 How. 479.) Fees paid to a stenographer for a copy of his notes, taken on the £rst trial of an action, to be used on a second trial thereof, cannot SO 563 Trial Practice. Compensation of commissioners. be taxed. Although such notes are very useful on the second trial, a disbursement therefor cannot be said to be necessary within the meaning of section 3267 of the Code. {Hamilton v. Butler, 30 How, 36 ; Spring v. Day, 44 id. 390. Contra, Flood v. Moore, 3 Abb. N. C. 91. And see opinion of Clerke, J., Sibley v. Nichols y 32 How. 182.) Stenographer's fees may be taxed where a copy of the minutes is necessary to make a case or a bill of excep- tions {Varnum v. Wheeler, 9 Civ. Pro. R. 421), or to enable a party to prepare amendments to a case {Sibley v. Nichols, 32 How. 182; Cutter v. Morris, 7 St. Rep. 426; Stevens v.N. Y. El. R. Co., 31 St. Rep. 404; Ridabock v. Metropolitan El. R. Co., 8 App. Div. 309), but there seems to be no authority for taxing fees paid to a stenographer for a copy of his notes for the pur- pose of making a motion for a new trial on the minutes (See Whitney v. Roe, 75 Hun, 508); and it has been rather more than intimated that the courts should not be zealous in discovering means of increasing the fees of stenographers at the expense of litigants. {H albert w. Gibbs, 16 App. Div. 126.) Where, upon a trial before a referee, the attorneys for the par- ties agree to employ a stenographer, each party to pay one-half of the expense, the successful party cannot tax the amount which he pays the stenographer under the agreement {Colton v. Simmons, 14 Hun, 75. See Provost v. Farrell, 13 id. 303); and the expense of a copy of the notes made for the referee is cov- ered by such an agreement and cannot be taxed. {Mark v. City of Buffalo, 87 N. Y. 184.) Compensation of commissioners. — The reasonable compen- sation of commissioners taking depositions may be included in the bill of costs. (Code of Civ. Pro., § 3256.) But the depo- sition must be that of a witness ; not that of the party himself who seeks to tax the expenses. A party has power over himself, and the necessity of a commission does not exist. {Delcomyn v. Chamberlain, 48 How. 409; 7 Jones & Sp. 3S9.) The fees paid to a solicitor for attending the examination of witnesses abroad cannot be inserted as a disbursement. Expenditures of this des- cription must be borne by the party himself as he bears counsel lees. (^Dunhamv. Sherman, 11 Abb. 152; 19 How. 572.) In an action for partition the fees and expenses of commis- Disbursements. 563 Fees for publication. sioners to make actual partition, including the expense of a sur- vey, 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 as part of his costs. (Code of Civ. Pro., § 1555.) And the same rule applies to an action for dower. (Id., § 1612.) Fees for publication. — The legal fees for publication, where publication is directed, pursuant to law, are taxable as a disburse- ment. (Code of Civ. Pro., § 3256.) Fees for copies of papers. — The legal fees paid for a certified copy of a deposition, or other paper, recorded or filed in any public office, necessarily used or obtained for use on the trial, are taxable as a disbursement. (Code of Civ. Pro., § 3256. See Hanelv. Baare, 9 Bosw. 682.) The legal fees for copies of opinions and the charges of judges are also taxable. (Code of Civ. Pro., § 3256.) Printing expenses. — The reasonable expenses of printing the papers for a hearing, when required by a rule of the court, are taxable as a disbursement. (Code of Civ. Pro., § 3256.) The ex- I pense of printing papers not required by a rule of court is not taxable, although it was done under a verbal agreement with the attorney for the party liable for the costs, and although the ref- eree directed the papers to be printed. {Veeder v. Mudgett, 27 Hun, 519; 91 N. Y. 374.) But it has been held that, in an ac- tion for partition, the expense of obtaining lithographic copies of the summons and complaint is taxable where there is a special affidavit showing a reasonable necessity for incurring the expense, and no affidavit to the contrary is produced. {Dougliss v. Atwell, 3 Civ. Pro. R. 80.) Printing expenses are taxable at the amount paid, in the ab- sence of evidence that the sum charged was fraudulently or col- lusively exaggerated, or more than the usual charge for such services, at the place where the party who obtained the printing resides. {Salter v. Utka &■ Black River R. R. Co., 86 N. Y. 401; Potter V. Carpenter, 56 How. 89. See Consalus v. Brotherson, id. 62.) Search. — The expense of an official search furnished by the 564 Trial Practice. Prospective charges. county clerk in actions in which a search is necessary, can be allowed as a disbursement, as his fees are regulated by statute and the allowance to him is sufficiently provided for in the stat- utes. Equitable Life Assur. Soc. v. Hughes, 125 N. Y. 106.) An unofficial search, although equally necessary, could not, in any case, be taxed as a disbursement (Id.) prior to the amendment to section 3256 of the Code, which provides that "searches affect- ing property situate in any county in which the office of county clerk or register is a salaried one, when made and certified to by title insurance, abstract or searching companies organized and doing business under the laws of this State, may be used in all actions and special proceedings in which official searches may be used in place of and with the same legal effect as such official searches, and the expense of searches so made by said companies shall be taxable at rates not exceeding the cost of similar official searches." Prospective charges. — Prospective charges for the ex penses of entering and docketing the judgment, and the sheriff's fees for receiving and returning one execution thereon, including the search for property, are taxable. (Code of Civ. Pro., § 3256.) The prospective charges which may be taxed are thus particularly specified, and do not include the fees which a county treasurer may deduct from the proceeds of a judgment directed to be paid to hinx, ( Veeder V. Mudgett, 2Y Hun, 519 ; 91 N. T. 374.) Other expenses. — After enumerating the above items as taxable the Code provides that such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law, may be included. (Code of Civ. Pro., § 3256.) Statutes allowing necessary disbursements to be taxed have been strictly construed {Hanel v. Baare, 9 Bosw. 682). and held to include only such disbursements as are incident to the due and regular proceedings in the action, and not to cover the ordinary dis- bursements of the party. {Case v. Price, 9 Abb. Ill ; 17 How. 348.) A trial jury is entitled to fees, and if they were paid by the party Disbursements. 5(15 Other expenses. entitled to tax costs he may include them in his bill ; but where the detenu a lit, by tailing to appear, waives a trial by jury, there is no necessity for a jury, and jury fees cannot be taxed, although the court directs the damages to be assessed by a jury. {Goodyear V. Baird, 11 How. 377.) Where services for which a sheriff would be entitled to fees are performed by a person other than the sheriff, it is proper, within the limits of the sheriff's fees, to allow as a disbursement the sum actu- ally paid. {Case v. Price, 9 Abb. Ill ; 17 How. 348.) But for services for wliich no fees are provided by law, for example the service of subpcenas, no disbursements can be taxed. Such services must be performed by the party himself, or at his expense. {Bur- nett V. Westfall, 15 How. 430; Pierrepont v. Lovelass,4c Hun, 681.) It has been held, however, that where a sheriff serves papers in the suit for which no fees are provided he is not acting in his official capacity, and that the expense necessarily incurred is a reasonable disbursement, and it was implied that the rule would be the same if the service were made by a person other than the sheriff. {Gallagher V. Egan, 2 Sandf. 742. But see Grofut r. Brandt, 46 How. 481 ; 47 id. 263.) Sums paid to expert witnesses beyond their legal fees cannot be taxed ( Wari v. City of Buffalo, 87 N. Y. 184) ; and sums paid for jdans and measurements to be used on the trial are not ta.xable. (Id.; Pothery v. Wew York Ruble- Co., 24 Hun, 172; 90 K T. 30.) But sums paid for telegrams have been allowed where there was a special affidavit showing a reasonable necessity for incurring the expense, and no affidavit to the contrary was presented. {Doug- liss V. AtweU, 3 Civ. Pro. E. 80.) The plaintiff in an action of foreclosure must cause the mortgage to be filed or recorded, if it has not already been recorded, the ex- pense of which fihng or recording, and the entry thereof shall be allowed in the taxation of costs. (Rule 63.) The attorney for a party may at any time before the trial exhibit to the attorney for the adverse party a paper material to the action, and request a written admission of its genuineness. If the admission is not given within four days after the request, and the paper is proved or admitted on tlie trial, the expense incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial and paid by the party refusing the admission, unless it 566 Trial Practice. Taxatton of costs. appears to the satisfaction of the court that there was a good reason lor the refusal. (Code of Civ. Pro., § 735.) Tliu proper practice would eeeni to be for the court or referee, after ascertaining the amount of the expense, to direct that it be paid by the party refus- ing the admission, and then if the same has not been paid when the costs are taxed it may be taxed or ofEset as the case requires. (Id., § 779.) SECTION XIII. Taxation of Costs. Costs must be taxed by the clerk upon the application of the party entitled thereto, except that the court may direct that interlocutoiy costs or costs in a special proceeding be taxed by a judge. (Code of Civ. Pro., § 3262.) A judge has no power to tax costs in the first instance unless he is directed by the court in a ease specified above. {Matthews v. Matson, 3 Civ. Pro. P. 157 ; Hanna v. Dexter^ 15 Abb. 135; Lynch v. Meyers, 3 Daly, 256, 260.) And the costs imposed upon granting an application to put a cause over the term, must in the absence of a direction that they be taxed by some other officer, be taxed by the clerk. {Crosley v. Cobb, 37 Hun, 271.) There are cases in which the statute provides for taxation by officers other than the clerk, at least as to a portion of the dis- bursements allowed as costs in an action. The Code provides that " Each county clerk or register of deeds who claims any fees by virtue of his office ; and each sheriff or coroner who upon the collection of an execution, or the settlement either before or after judgment of an action or special proceeding claims any fees which have not been taxed ; must upon the written demand of the person liable to pay the same cause them to be taxed within the county, upon notice to the person making the demand, by a jus- tice of the Supreme Court or the county judge. After such 3 demand is made the officer cannot collect his fees until they have been so taxed." (Code of Civ. Pro., § 3287.) Even in the cases provided for in this section the judge has no jurisdiction to tax the fees of the clerk or sheriff except upon the written demand of the person liable to pay the fees. {Matter of Tamsen, 23 App. Div. 389.) Taxation of Costs. 567 Notice. Where the court by its order directs the payment of a specific sum as costs there is no need of taxation ; but where it provides for the payment of disbursements a taxation is necessary {Margu- lies V. Damrosch, 23 Misc. yy), and the order should clearly indi- cate what disbursements are to be included in the taxation. {Wardv. Ward, 23 Civ. Pro. R. 61.) Notice. — Costs may be taxed upon notice to the attorney for each adverse party who has appeared and is interested in reducing the amount thereof. (Code of Civ. Pro., § 3263.) The fact that a defendant who appeared did not answer does not cut off his right to notice. {Dix v. Palmer, 5 How. 233.) Costs may also be taxed without any notice being given, but in that case notice of retaxation must immediately afterward be given to all parties who would have been entitled to notice in the first instance. (Code of Civ. Pro., § 3264.) The judgment is as complete and final where the costs are taxed without notice as where they are taxed upon notice ; and in case any reduction is made in the amount of costs upon retaxation no change is made in the amount inserted in the judgment but the reduction is credited upon the execution issued upon the judgment. {Hewitt v. City Mills, 136 N. Y. 211.) That the costs were taxed without notice cannot be urged as error on appeal. {Matter of Taxpayers of Plattsburgh, 27 App. Div. 353.) The notice must be served not less than five days before the taxation or retaxation, as the case may be, unless the attorneys serving and served with the notice all reside or have their offices in the city or town where the costs are to be taxed, in which case a notice of two days is sufficient. (Id., §§ 3263, 3264.) In case the notice is served by mail, however, the requirement as to double time must be observed. (Id., § 798. See, also, § 788.) The notice must state in terms that the costs will be taxed. A letter stating that it is proposed to tax costs at a specified time and place before a specified officer is not sufficient. {Brown v. Ferguson, 2 How. 128.) A copy of the bill of costs specifying the items, with the disbursements stated in detail, must be served with the notice. (Code of Civ. Pro., §3263.) Even if the statute does not implicitly require the service of an affidavit as to wit- nesses and disbursements with the notice of taxation, it is the 668 Trial Practice. Powers and duties of clerk and proc<:eJiags before him. general if not the universal practice to serve the affidavit with the notice. (jOrosley v. Cobb, 27 Hun, 271.) It is no objection to a notice that it was given before the right to recover costs was established, provided the right to such costs as were noticed exist at the date for which the notice was given. {Anonymous, 4 Sandf. 693.) If no notice of taxation or retaxa- tion is given, the court must, upon the application of a party- entitled to -notice, direct a retaxation, with costs of the motion to be paid by the party in default. (Code of Civ. Pro., § 3264.) Powers and duties of clerk and proceedings before him — The clerk has no powers of a judicial nature which he can exer- cise so as to award costs to either party. His duties are minis- terial, and he must obey the orders and directions given by the court. (Chase v. Miser, 67 Barb. 441; Kahn v. Schmidt, 83 Hun, 541; Rosa v. Jenkins, 31 Hun, 384.) If an order of the court de- prives a parly of costs when he is entitled to tbem, he must obtain a modification thereof. The clerk cannot disregard the order. (Olcott v. McLean, 11 Hun, 394) The only duty which the clerk is required or permitted to perform in relation to costs is to ascertain and determine what items of costs and disburse- ments the party presenting a bill for adjustment is bv law entitled to. The question whether or not he is entitled to any costs is for the court to determine, not the clerk. {Bailey v. Stone, 41 How. 346.) Where there is no statutory allowance for an item charged in the bill presented, the evidence entitling the party to tax the item, for example, an order of the court must be presented before the clerk. [Brown V. Windmuller, 4 Jones & Sp. 75, 78 ; 4 Abb. [N. S.] 359.) la actions where the costs are in the discretion of the court the re- port or decision, or the direction of the court for final judgment upon a default, or after a jury trial, must specify which party or parties are entitled to costs, the clerk's duty on taxation being sim- ply to ascertain the amount of the costs. (Code of Civ. Pro., § 3362. See Williams v. Cassady, 22 Hun, 180, 185.) Where the action was tried before a referee the referee's decis- ion awarding judgment stands before the clerk as the mandate of the court, and he has nothing to do with the question whether or not it was regularlj' obtained ; until vacated and set aside its Taxation of Costp. 569 Where two or more defendants appear by different attorneys direction for jndgment must be obeyed. {Ballou v. Parsons, 6-j Barb. 1-J; 5:3 How. 164; 55 N. Y. 673.) The additional allowance provided for by section 3252 of the Code of Civil Procedure being given to the plaintiff as a right, it is the clerk's duty to tax the same, and he must compute the amount ; but the value of property required to be ascertained for that pnrpose must be ascertained by the court, unless it has been fixed by the decision or report, or by the verdict of the jury upon which the final jndgment is entered, except that in case of actual partition it must be determined by the commis- sioners. (Code of Civ. Pro., § 3262.) In respect to a discretion- ary allowance, the clerk has no duty to perform save to tax it after it has been granted by the court. "When granted it becomes a part of the taxable costs of the action. ( Coates v. Goddard, 2 Jones & Sp. 118.) Where two or more defendants appear by different attorneys and interpose separate defenses and succeed upon the trial and present separate bills of costs, the clerk must tax them. They are entitled to separate bills as matter of law, subject to the power of the court to confine them to one bill in a case where the separate defenses were interposed to enhance costs, and this is a matter for the court to decide upon application, not for the clerk. ( WiUiams v. Gassady, 'm Hun, 180. But see Haye v. Robertson, 6 Jones & Sp. 59.) The clerk must, whether the taxation is opposed or not, examine the bills presented to him for taxation ; must satisfy himself that all the items allowed by him are correct and legal ; and must strike out all charges for fees other than the prospective charges expressly allowed by law, where it does not appear that the services for which they are charged were necessarily performed. (Code of Civ. Pro., § 3266.) A charge for the attendance of a witness can- not be allowed without an affidavit stating the number of days of his actual attendance, and, if travel fees are charged, the dis- tance for which they are allowed. A charge for a copy of a document or paper cannot be allowed without an affidavit stat- ing that it was actually and necessarily used, or was necessarily obtained for use. An item of disbursements in a bill of costs cannot be allowed in any case unless it is verified by affidavit, and appears to have been necessarily incurred and to be reason- able in amount. (Code of Civ. Pro. § 3267. See Adams v. 570 Trial Practice. In case of a foreign witness. Ward, II Week. Dig. 475; CrosUj^ v. Col>d, 37 Han, 271.) The days on which witnesses attended, and whether they attended each time on subpoena or not, and the distance from the place of residence of each witness to the court house by the usual modes of travel, must appear by the affidavit. In case of a foreign wit- ness the distance from the point where persons coming from his place of residence usually enter the State, to the court house, by the usual route, must be given. If the witnesses did not attend upon a subpcena, then their affidavits that they attended at the request of the party, for the sole purpose of being witnesses, and would not otherwise have come to the city, town or village where the court was held, should be produced. {Taaks v. Schmidt, 25 How. 340. See Agricultural his. Co. v. Bean, 45 id. 444.) The number of miles traveled by the witnesses as such must appear, as well as the fact that they were material and necessary, or that the party believed them to be so. (Wheeler v. Lozee, 12 Hun, 446.) An affidavit of the party that a witness was a necessary one, and that at every trial the witness was actually sworn and examined, is amply sufficient to establish /rma facie that he was a necessary witness. {Wheeler v. Ruckman, 5 Rob. 702.) The materiality of witnesses need not be shown in the first instance, until the adverse party shall have raised a suspicion that they were subpoenaed or otherwise called for the purpose of swelling the bill. The presumption is of good faith until the contrary is shown. But if the adverse party show that witnesses were not called on the trial the party seeking to tax for the expense of their attendance must explain why they were not called, and the clerk is no longer at liberty to follow the ordinary affidavit. {Dowlingv.BushjQHo-w. 410.) An affidavit which does not show that the witnesses were sworn upon the trial, or if they were not sworn that their attendance was obtained in good faith with the expectation that their evidence would be- come material on the trial of the issue is insufficient. {Durant V. Abendroth, 48 Hun, 16.) An affidavit that such wit- nesses attended under the advice of counsel should be pre- sented ( 7"erson, twenty-five cents ; and by each additional person, twelve cents; for swearing each wit- ness thereto, six cents. (Code of Civ. Pro., § 3298.) Surveyors' and commissioners' fees in action for partition or dower^ etc. — A surveyor, employed as prescribed by law, in an action for partition or dower, or to determine dower, is entitled to $5 for each day actually and necessarily occupied in surveying, lay- ing out, marking, or mapping land therein. Each assistant, so em- ployed, is entitled to $2 for each day actually and necessarily occupied in serving under the surveyor's direction. Each commis- sioner, appointed as prescribed by law, to make partition or ad- measure dower, is entitled to $5 for each day's actual and necessary service. (Code of Civ. Pro., § 3299.) Clerk's fees in civil actions generally. — Except as otherwise prescribed in section 3302 of the Code, each clerk of a court of record is entitled, for iiis services in an action or a special proceed- ing, brought in or transferred to the court of which he is clerk, to the following fees : Upon the trial of the action, or the hearing, upon the merits, of the special proceeding, from the party bringing it on, $1. For entering final judgment in the action, or entering a final order in the special proceeding, including the filing of the j udgment-roll, and a copy of the judgment to insert therein, fifty cents ; and ten cents in addition for each folio exceeding ten, contained in the order or judgment. For entering any other order or an interlocutory judgment, ten cents for each folio exceeding five. For a certified or other copy of an order, record, or other paper, entered or filed in his office, five cents for each folio. Where, on an appeal from a judgment or order, a party shall present to the clerk a printed copy of the judgment-roll or order Amount of Fees. 677 Fees of county clerks generally. appealed from, it shall be the duty of the clerk, as required, to compare and certify the same, for which service he shall be en- titled to be paid at the rate of one cent per folio. For a certified transcript of the docket of a judgment, twelve cents. For filing a transcript and docketing or re-docketing a judg- ment thereupon, six cents. He is not entitled to any fee, or other compensation, for any other service in an action or a special proceeding in the court, except that, where he is also county clerk, he may charge fees as prescribed in section 3304 of the Code, subject to the limitations therein contained. Where the attorneys for all the parties interested, other than parties in default, or against whom a judgment or a final order has been taken, and is not appealed from, stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any provision of the Code, the stipulation takes the place of a certificate, as to the parties so stipulating, and the clerk is not required to certify the same, or entitled to any fee therefor. And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts, and shall be used and filed with the same force and eflect as if certified by a clerk of the court. (Code of Civ. Pro., § 3301.) The section above cited does not apply to the clerk of a surrogate's court, of the city court of the city of New York, of the city court of Yon- kers, of the justices' court of the city of Albany, or of a mayor's or recorder's court. (Id., § 3302.) ■ Fees of county clerks generally. — A county clerk is entitled, for the services hereinafter speeitied, except where another fee is allowed therefor by special statutory provision, to the following . fees : For searching and certifying the title to, and incumbrances upon, real property, for each year for which the search is made, for each name, and each kind of conveyance or lien, five cents. For a copy of an order, record, or other paper, entered or filed in his ofiice, eight cents for each folio. For filing a transcript, and making an entry as prescribed in sec- tion 1258 of this act, twelve cents. 87 678 Trial Practick. Fees of connty clerks generally. For issuing an execution upon a judgment, a transcript whereof, or ot the docket of which, has been tHuU iii his oih.ce, lilty cents, to be paid by the party at whose request the execution is issued, and to be collected by the sheriff in additiMi to the sum due upon the judgment. For recording and indexing a notice of the pendency of an action, filed in his office, ten cents for each foHo contained in the notice. For canceling such a notice, or a notice filed in his office, as pre- scribed in section 649 of this act, twenty-five cents. For recording any instrument, which must or may legally be re- corded by him, ten cents for each folio. For filing a certificate of satisfaction, or other satisfaction-piece, of a mortgage, and entering the satisfaction, twenty-five cents. For affixing and indexing a notice of foreclosure of a mortgage as prescribed in section 2390 of this act, twenty-five cents. For entering a minute that a mortgage has been foreclosed, ten cents. For filing and entering a satisfaxjtion or an assignment of a judg- ment, twelve cents. For fib'ng and entering the bond of a collector or other officer au- thorized to receive taxes, twelve cents. For searching for such a bond, six cents. For entering satisfaction thereof, twelve cents. For sealing any paper, when required, twelve cents. For filing and docketing notice of a mechanic's Hen, ten cents. For filing and entering specifications and aU other papers relating to a lien against a vessel, twenty-five cents. For filing any paper required by law to be filed in his office, other than as expressly provided for in this section, six cents. For filing any paper deposited with him for safe-keeping, six cents; and for searching for such a paper, when required, three cents for each paper necessarily opened and examined. For a certificate, other than that a paper, for the copying of which he is entitled to a fee, is a copy, twenty-five cents. For inquiring into, determining, and certifying the sufficiency of the sureties of a sheriff, fifty cents. For attending upon the canvassing of votes, given at an elec- tion, $2. For drawing the necessary certificates of the result of the canvass, Amount of Fees. 579 Fees of county clerks generally. eighteen cents for each folio ; and for the necessary copies thereof, nine cents for each folio. For notifying the governor that any person has taken an oath of office, ten cents and the necessary postage. For notifying the governor that any person has neglected to take an oath of office, or to file or renew any security, within the time prescribed by law, or of a vacancy in an office in his county, ten cents and the necessary postage. For notifying any person of his appointment to office, twenty-five cents, and the expenses, actually and necessarily incurred in giving ':he notice, which the comptroller deems reasonable. For entering, in the minutes of the County Court, a license to keep a ferry, and for a copy thereof, $1. For taking and entering a recognizance, from any person author- ized to keep a ferry, twenty-five cents. But a county clerk is not entitled to any fee, under this section, for a copy of, or for filing or certifying, any paper, in a civil action or special proceeding, in a court of which he is ex-officio clerk. (Code of Civ. Pro., § 3304.) But the above provision does not affect any special statutory pro- vision remaining unrepealed after the Code of Civil Procedure took effect, whereby a fee different from the fee therein allowed is allowed to the clerk of the city and county of New York, or of the county of Kings, for a service thei-ein specified. (Id., § 3305.) Sheriff's fees. — A sheriff is entitled, for the services hereinafter specified, to the following fees : 1. For serving a summons, with or without either a copy of the complaint, or a notice specified in section 419 or section 423 of this act ; or for serving or executing an order of arrest, or any other man- date, for the service or execution of which no other fee is specially prescribed by law, except a subpoena, $1 for each person served or as to whom it is executed ; and for necessary traveling to serve or execute the same, six cents for each mile traveled, going and returning ; the traveling fees to be compiited from the court-house of the county ; or, if there are two or more court-houses, from that nearest to the place of service or execution. But where two or more mandates are delivered to a sheriff, to be served upon or executed against one person, at one time, in one action or special proceeding ; or where a mandate is served upon or executed against two or more 580 Trial Practice. Sheriff's fees. persons, in one action or special proceeding, and in the course of one journey, — the sheriff is entitled, in all, to six cents only, for each mile traveled. 2. For levying a warrant of attachment, against the property of a defendant, issued as prescribed in title third of chapter seventh of the Code, or for executing a requisition to replevy one or more chattels, $1 ; and, also, such additional compensation, for his "trouble and expenses, in taldng possession of and preserving the property, as the judge, issuing the warrant, or in case of a replevin, as the court or a judge thereof allows, and the judge or court may make an order requiring the party liable therefor to pay the same to the sheriff. For making and filing a description of real property, or an inventory of personal property attached, twenty-five cents for each folio ; for each necessary copy thereof, twelve cents for each i(Aio ; together with such compensation to the appraisers, as the judge issuing the warrant allows, not exceeding $2 to each appraiser, for each day actually employed.C For advertising, during the pendency of the action, personal property attached, the same fees as are allowed to a sheriff for advertising personal property for sale, by virtue of an execution. If the action is settled, either be- fore or after judgment, the sheriff is entitled to poundage, upon the value of the property attached, not exceeding the sum at which the settlement is made. 3. For a copy, necessarily made by him, of a summons or other mandate, or of a complaint, affidavit, or other paper served by him, where no fee therefor is specially prescribed by law, twelve cents for each folio. i. For notifying jurors to attend a Trial Term of a court of record, fifty cents for each cause placed upon the calendar, for trial by a jury, to be paid by the party first putting the cause on the calendar for that term. Bat the sheriff is not entitled to more than $1.50 for calendar fees in one action. The clerk shall not put a cause upon the calendar, few trial by jury, until the fee, specified in this subdivision, is paid to him, for the use of the sheriff. And where the cause is tried at a subsequent term, without a new note of issue, as prescribed in section 977 of this act, the party moving the trial must pav to the clerk, for the use of the sheriff, the calendar fee or fees remaining unpaid. The provisions of this subdivision shall not be applicable to counties wherein the sheriff is a salaried officer. Amount of Fees. 581 Sheriff's fees. 5. For notifying jurors drawn to attend upon a writ of in- quiry, or to try the validity of a claim to personal property, seized by virtue of a writ of attachment or an execution, or in obedience to a precept issued by commissioners appointed to inquire concerning the incompetency of a person to man- age himself or his affairs, in consequence of idiocy, lunacy, or habitual drunkenness, or in any case not provided for in the last preceding subdivision of this section, including the making and return of the inquisition when required, for each JTiTor notified, twentj'-ii ve cents. For attendmg a j ury, wJieu requireu, in such a case, $2. 6. For receiving an execution ag-ainst property, entering it in his books, searching for property, and postage on tlie return, when made through the post-office, fi.fty cents. If required by the sheriff, that fee, together with his fee for returning the execution, must be paid, by the person in whose behalf the execution is issued, at tlie time when it is delivered to the sheriff, who is not bound to execute it unless the fee is so paid. For mileage upon an execution, for each mile, going only, ten cents ; to be computed as prescribed in subdi- vision first of this section. 7. For collecting money by virtue of an execution, a warrant of attachment, or an attachment for the payment of money in an action or a special proceeding ; or by virtue of a warrant for the collection of money, issued by the comptroller, or by a county treasurer ; in any county except New York, Kings, or Westcliester, three per centum upon the sumi collected, not exceeding $250, and two per centum upon the residue of the sum collected ; and in either of the counties of Wew York, Kings, or Westchester, two and one-half per centum upon the sum collected, not exceeding $250, and one and one-quarter per centum upon the residue of the sum collected ; and also, where an execution is stayed after a levy, by order of the court or otherwise, or where a levy is upon a live animal, or speedily perisliable property, such additional compensation, for his trouble and expeuses in taking care of and preserving the property, as the court or a judge thereof allows. Where a settlement is made after a levy by virtue of an execution, the sheriff is entitled to poundage upon the value of the property levied upon, not exceeding the sum at which the settlement is made, and to the additional compensation, if any, provided for in this subdivision. 682 Trial Practice. Sheiifl's fees. S. For advertising real or personal property for sale, by virtue of an execution, warrant of attachment, or other virarrant specified in the last preceding subdivision, $2. unless it is stayed or settled before sale ; and in that case, $1. 9. For making duplicate certificates of the sale of real property, by virtue of an execution, twenty-five cents for each folio. For draw- ing and executing a conveyance, upon a sale of real property, $2, to be paid by the grantee. The sherifE is also entitled to the printer's fees, as prescribed by law, paid by him for the publication, not more than six weeks, of a notice of the sale of real property, and he may require the party directing the sale to advance the printer's fees, in which case he must repay the same out of the proceeds. "WTiere the notice is published more than six weeks, or the sale is postponed, the expense of continuing the publication, or of publishing the notice of postponement, must be paid b}' the person requesting it. Where two or more executions against the property of one judgment debtor are in the hands of the sheriff, at the time when the property is first ad- vertised, the sherifE is entitled to printer's fees upon only one execu- tion, and he must elect upon which execution ho will receive the same. 10. For returning any mandate, which he is required by law to re- turn, twelve cents. For a certified copy of an execution, and of the return of satisfaction thereupon, delivered as prescribed in section 1266 of this act, twenty-five cents. 11. For posting and publishing the notice of sale, selling and con- veying real property, in pursuance of a direction contained in a judg- ment, the like fees as for the same services upon the sale of real property by virtue of an execution ; but where real property is sold imder a judgment in an action to foreclose a mortgage, the sheriff's entii'e compensation cannot exceed $50. 12. For taking a bond for the liberties of the jail, $1. For taking any other bond, or any undertaking, which he is authorized to take, fifty cents. For a certified copy of such a bond or undertaking, twenty-five cents. 13. For executing any mandate, requiring him to put a person into possession of real property, other than a warrant specified in subdi- vision eighteenth of this section, and removing the person in posses- sion, $1. 50, and the same travel fees as upon the service of a summons. 14. For each person committed to or discharged from prison, in an Amount of Fees. 583 Sherifi's fees. action ora special proceeding, $i,to be paid by the personat whose instance he is imprisoned. For attending before an officer, for the purpose of surrendering a prisoner, or receiving into custody a pris- oner surrendered, in exoneration of his bail, including all his services upon such a surrender or receipt, $1. 15. For attending a view, $2 for each day, and for traveling, going and returning, eight cents for each mile. 16. For bringing up a prisoner, upon a writ of habeas corpus to inquire into the cause of detention, $1.50 ; and for traveling to and from the jail, twelve cents for each mile. For bringing up a pris- oner, upon any other writ of habeas corpus, the same fees ; and for attending the eonrt or judge thereupon, $1 for each day. The sheriflF is entitled, m aadition to the sums specified in this subdivision, to his actual and necessary expenses. 17. For any services which may be rendered by a constable, other than those specially provided for in this section, the same fees as are allowed by law to a constable for those services. 18. For executing a warrant to remove any person from lands belonging to the people of the State, or to Indians, such a sum as the comptroller audits and certifies to be a reasonable compensation. 19. For giving notice of any general or special election to all the officers to whom he is required by law to give such notice, $1 for each town or ward, in addition to the expense of publishing the notices, as required by law, payable from the county treasury. 20. For notifying constables to attend a court, fifty cents for each fionstablo notified. 21. For attending a term of a court, which he is required by law to attend, for each day, $3. (Code of Civ. Pro., § 3307.) But the above provision as to sheriff's fees, except the limitation of amount contained in subdivision eleventh thereof, does not affect any special statutory provision remaining unrepealed after title 5 of chapter 21 of the Code of Civil Procedure took effect relating to the fees and expenses of the sheriff of the city and county of New Tork, or the sheriff of the county of Kings. (Id., § 3308.) The tees of ttie sheriff of ttie City and County ot New York are fixed by statute. (See Laws of 1890, Ch. 523, § 17; Laws of 1892, Ch. 418; Laws of 1894. Ch. 477.) The last clause of subdivision 4 of section 3307 of the Code of Civil Procedure excepting from the application of the provi- 684 Trial Practice. Coroner's fees. sions of that subdivision the counties wherein the sheriff is a sala- ried officer is becoming more important each year as the number of counties in which the sheriff receives a salary in lieu of fees or in addition to certain fees is rapidly increasing. The sheriff is a salaried officer in the city and county of New York (Laws of 1890, ch. 523; Laws of 1892, ch. 418); in the counties of Columbia (Laws of 1891, ch. 268); Erie (Id., ch. 108); Herkimer (Id^ ch. 47); Madison (Id., ch. 29); Wayne (Id., ch. 30); Niagara (Laws of 1894, ch. i6o); Westchester (Id., ch. 687); Allegany (Laws of 1897, ch, 539); Sullivan (Id., ch. 505); Washington (Id., ch. 117); Yates (Id., ch. 362); Chenango (Laws of 1898, ch. 288); Oneida (Id., ch. 321); Steuben (Id., 445); Montgomery (Id., ch. 42)^ Saratoga (Id., ch. 44); and Tioga (Id., ch. 9). Coroner's fees. — A coroner is entitled, for the services as spec- ified, to the following fees: 1. For performing any duty of a sheriff, in an action or a special proceeding, in which the sheriff is, for any cause, disqualified, the same fees to which a sheriff is entitled for the same services. 2. For confining a sheriff in a house, by virtue of a mandate, and maintaining him while there, $2 for each day, to be paid by the sheriff, before he is entitled to be discharged. (Code of Civ, Pro., § 3310.) Stenographer's fees for copies of notes. — Except where otherwise agreed or when special provision is otherwise made by statute, a stenographer is entitled for a copy fully written out from his stenographic notes of the testimony or any other pro- ceeding taken in an action or a special proceeding in a court of record or before a judge or justice thereof and furnished upon request to a party or his attorney, to the following fees for each folio : in a trial term of the Supreme Court, or at a Special Term of the Supreme Court in the third, fourth, fifth, sixth, seventh, or eighth judicial districts, six cents ; in any other court or courts, ten cents; and for the copy of the testimony required to be made in any proceeding for the record of the surrogate's court of either of the counties of New York or Kings, ten cents ; and the surro- gate may order that the fees for such record copy be paid out of the estate to which the proceeding relates. (Code of Civ. Pro., § 33H.) Amount of Fees. 585 Fees of trial jurors. Fees of trial jurors. — A trial juror, ia an action or a special proceeding, in a court of record, is entitled, except as otherwise facially prescribed by statTuts in a particular court or a particular connty, to the following fees: twenty-five cents for each cause in which he is impaneled, to be paid by the party noticing the cause for trial ; or if it is noticed by more than one party, by the party whom the court directs to pay it. (Code of Civ. Pro., § 3313.) Fees of printers. — Except as otherwise specially prescribed by few the proprietor of a newspaper is entitled for publishing a sum- mons, notice, order, citation or other advertisement, required by law to be published, other than the session laws, for each folio, seventy-five cents for the first insertion, and fifty cents for each subsequent insertion. (Code of Civ. Pro., § 3317,) Witnesses' fees ^nerally. — A witness in an action or a special proceeding, attending before a court of record or a judge thereof, is entitled, except where another fee is specially prescribed by law, to fifty cents for each day' s attendance ; and if he resides more than three miles from the place of attendance, to eight cents for each mile, going to the place of attendance. (Code of Civ. Pro., § 3318.) If a witness duly subpoenaed attends and thereafter is not paid his attendance fee he is at liberty to return, and his attendance can only be secured by again subpoenaing him and paying his mileage. If a party does not choose to consider a witness as in attendance he should allow him to depart and pay him his mileage and fees for attendance on the day he is wanted. {Muscott v. Hunge, 27 How. 85.) Where a Circuit is adjourned over Sunday a party must pay his witnesses aper diein for Sunday or traveling fees. (Id.) But if witnesses reside m the place wuere tne court is neia ana ao not attend as such in the court-house, and only cojne in when wanted or when the case is tried, they are not entitled to fees for any day oil which they do not actually attend in the court-house as wit- nesses in the case. {Agricultural Ins. Co. v. Bean, 45 How. 444.) A witness subpoenaed under a subpoena duces tecum is entitled to the fees specified above. (See Code of Civ. Pro., § 852 ; Matter of Corwin, 6 Abb. N. C. 437.) A witness is entitled to travel fees from his place of business, from which he actually traveled to attend as a witness and to which. 586 Trial Practice. Witnesses' fees generally. he immediately returned, although his permanent residence is else- where. {Mitchell V. Westervelt, 6 How. 265, 311 ; ClarTc v. Staring, 4 id. 242.) But a witness who is subpcenaed while he is temporarily away from his place of residence, and when he is about to return home, is entitled to travel fees from his residence. {Pike v. Nash, 16 How. 53. See Mead v. Mallory, 27 id. 32.) A witness residing out of the State is entitled to fees for the number of miles he travels from the boundary line within the State to the place of trial. {Ilowland v. Lennox, 4: Johns. 311 ; Hinds Y. Schenectady Covnty Mutual Ins. Co., 7 How. 142.) This dis- tance should be estimated by the nearest usually traveled route from the boundary line of the State to the place of trial by the usual modes of public conveyance. {Wilhie v. Ghadwich, 13 Wend. 50 ; Wheeler v. Losee, 12 How. 448. See Moulton v. I'ownsend, 16 id. 306.) A foreign witness subpoenaed at the place of trial is not en- titled to travel fees {Dowling v. Bush, 6 How. 410), though the rule is otherwise if he travel from his place of residence to the place of trial for the purpose of attending as a witness and is then subpoenaed. ( Wheeler v. Lozee, 12 How. 446.) An agreement by which a party is to pay a witne:::- a specified Bum, if his testimony leads to a favorable termination of the suit, cannot be enforced. _ (^Pollak v. Gregory, 9 Bosw. 116.) CHAPTER X. JUDGMENTS. SECTION I. Natuee of a Judgment. The precise meaning of the word "judgment," as used in the eeveral acts designed to simplify the practice in this State, lias always been involved in doubt. Much time has been spent by the court in the attempt to decide whethei- certain of its written decisions in actions pending before it were to be classed as judgments or orders ; and if the former, whether they were to be classed as final or interlocu- tory. The question is important, as the proceedings to be adopted for the enforcement or review of the decision depend upon its classification. The old Code defined a judgment as "the final determination of the rights of the parties in the action." (Code of Pro., § 245.) Under that act an interlocutory judgment was unauthorized. {Bel- mont V. Ponvert, 3 Rob. 693.) Every direction of a court or judge, made or entered in writing, and not included in a judgment, was de- nominated an order. (Code of Pro., § 400.) It was held that ,an order was the decision of a motion, while a judgment was the decision of a trial. {Bentley v. Jones, 4 How. 334; Hoffman v. Barry, 2 Hun, 53 ; King v. Stafford, 5 How. 30.) The present Code, while containing substantially the former definition of an •order (Code of Civ. Pro., § 767), declares that "a judgment is either interlocutory or the final determination of the rights of the parties to the action. (Id., § 1200.) The fact that a judgment may now be interlocutor}', and not iliQ final determination of the rights of the parties, destroys one of the tests applied in determining the character of a decision under the old Code. (See Harris v. Ham- mond, IS How. 123, 125 ; Bauman v. New York Cent. li. R. Co., 10 id. 218 ; Moza v. Sun Mut. Ins. Co., 22 id. 60 ; S. C, 13 Abb. ^04 ; Bolph V. White, 8 How. 275.) A definition of an interlocu- tory judgment was given in the Code of Cis'il Procedure as origin- ally enacted, but the section containing it was struck out by the amendatory act of 1877. (See Lacustrine Fertilizer Co. v. Lake Guano, etc., Co., i6 Hun, 484; MilUr v. Sheldon, 15 id. 220.) An interlocutory judgment has been described as an intermediate or 587 588 Trial Practice. Judgment may be for or asfainst any of the parties. Incomplete judgment, where the rights of the parties are settled but something remains to be done, as when there is an account- ing to be had, a question of damages to be ascertained, or a ref erence required to determine the amount of rent due for use ana occupation. (Cambridge Valley Nat. Bank v. Lynch, y6 N. Y. 514.) As a general rule when a judgment directs a reference, although it provides for the decision of the main questions at issue, it is deemed interlocutory. (Morris v, Mot ange, 1%'^.Y. 172.) But the rule is subject to qualification. A judgment in foreclosure may- be final although it directs a sale of the mortgaged premises by a referee, a report as to any deficiency arising on the sale, and pay- ment by a defendant of the deficiency so ascertained. (Id.; Nutt V. Cuming, 155 N. Y. 309; Heath v. New York Building Loan Co., 91 Hun, 170. See Springsteene v. Gillett, 30 Hun, 260; Johnson v. Everett, 9 Paige, 636; Mills v. Hoag, 7 id. 18; Moore v. Shaw, 15 Hun, 428; "JJ N. Y. 512.) But if any questions are reserved by the judgment, requiring further judicial action by the court, the judgment is interlocutory. (Id. See Eaynor v. Raynor, 94 N. Y. 248, 250 ; Victory v. Blood, 93 id. 650 ; Johnson v. Everett, 9 Paige, 636.) If nothing is reserved by the judgment for the court judicially to determine, the judgment is final, although some ministerial act by the sheriff or by a referee may be necessary to carry it into effect. As a general rule an interlocutory judgment on an issue as to the merits is a final determination of part of the issue, which leaves the rest of the issue to be thereafter adjudged. It cannot be a judgment of any kind, if, ou its face, it does not determine some part of the issue. A mere order for judgment is not a judgment nor any part of a judgment. The judgment is the formal adjudication of the court to be entered in pursuance of the order. (See Gamer v. Har- mony Mills, 13 Jones & Sp. 148 ; Knapp v. lioohe, 82 N. T. 366.). SECTION II. Judgment mat be Fob ok Against any of the Paeties. .Judgment may be given for or against one or more plaintiffs and for or against one or more defendants. It may determine the ulti- mate rights of the parties on the same issue, as between themselves, and it may grant to a defendant any affirmative relief to which he- is entitled. CCode of Civ. Pro., § 1204.) Judgment May be For or Against Any of the Parties. 589 The relief which defendants may have against each other. Wheie the action is against two or more deteudants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants, and direct that the action be severed, and proceed against the others as the only defendant therein. (Id., § 1205.) Judgment for or against a married woman may be rendered and enforced in a court of record or not of record as if she was single. he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment, and the oral proof, if any, taken thereupon." (Id., § 1213.) " Where the sununons was personally served upon the defend- ant, witliin the State, and he has made default in appearing, or where the defendant has appeared but has made default in pleading, and the case is not one where the clerk can enter final judgment, as pre- scribed in the last two sections, the plaintiff must apply to the court for judgment Upon the application he must file, if the default was in appearing, proof of service of the summons; or, if the default was in pleading, proof of appearance, and also, if a copy of the com- plaint was demanded, proof of service thereof iipon the defendant's attorney ; and, in either case, proof, by afBdavit, of the default which entitles him to judgment." (Id., § 1214.) " The court must thereupon render the judgment, to which the plaintiff is entitled. It may, without a jury, or with a jury if one is present in court, make a computation or assessment, or take an ac- count, or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect ; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose ; except that where the action is brought to recover damages for personal in- jury or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or a writ of inquiry is directed, the court may direct that the report or inquisition be retitmed to the court for its farther action ; or it may, in its discre- tion, except where special provision is otherwise made by law, omit that direction ; in which ease final judgment may be entered by the clerk, in accordance with the report of the referee, or for the dam- ages ascertained by the inquisition, without any further application." (Id., § 121.5.) "Where the summons was served upon the defendant without the State, or otherwise than personally, if the defendant does not demand a copy of the complaint or plead, as the case requires, within twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the com- plaint. Upon such an application, he must file proof that the service is complete, and proof by aflfidavit of the defendant's de- 600 Trial Practice. The court must require proof of the cause of action. fault. The court must require proof of the cause of action, set forth in the complaint, to be made, either before the court, or before a referee appointed for that purpose; except that where the action is brought to recover damages for a personal injury or an injury to property the damages must be ascertained by means of a writ of inquiry as prescribed in the last section. If the defendant is a non-resident or foreign corporation, the court must require the plaintiff or his agent or attorney to be examined on oath, respecting any payments to the plaint- iff, or to any one for his use, on account of his demand, and must render tlie judgment to which the plaintiff is entitled. But before rendering judgment, the court may, in any case, in its discretion, require the plaintiff to file an undertaking, to abide the order of the court touching the restitution of any estate or effects which may be di- rected by the judgment to be transferred or delivered, or the resti- tution of any money that may be collected under or by virtue of the judgment, in case the defendant or his representative applies and is admitted to defend the action and succeeds in his defense." (Id., § 1216. " A judgment shall not be rendered for a sum of money only, upon an application made pursuant to the last section, except in an action specified in section G35 of this act. "Where the defendant is a non- resident, or a foreign corporation, and has not appeared, the plaintiff, upon the application for judgment in such an action, must produce and file the following papers : 1. Proof, by affidavit, that a warrant of attachment, granted in the action, has been levied upon property of the defendant. 2. A description of the property, so attached, verified by affida- vit ; with a statement of the value thereof according to the inven- tory. 3. The undertaking mentioned in section 1216, if one has been re- quired." (Id., § 1217.) "A judgment by default shall not be taken against an infant de- fendant, until twenty days have expired, since the appointment of a guardian ad litem for him." (Id., § 1218.) "A defendant, against whom judgment is taken, pursuant to tho foregoing sections of this article, is entitled to notice, as follows : Where Some of the Defendants Make Default. 607 Where an application for judgment must be made to the court. 1. if he iias appeared generally, but has made default in pleading, he is entitled to at least five days' notice of the time and place of an assessment by the clerk, and to at least eight days' notice of the time and place of an application to the court for judgment. 2. In a case where an application for judgment must be made to the court, the defendant may serve upon the plaintiff's attorney, at any time before the application for judgment, a written demand of notice of the execution of any reference, or writ of inquiry, which may be granted upon the application. Such a demand is not an ap- pearance in the action. It must be subscribed by the defendant, in person, or by an attorney or agent, who must add to his signature his office address, with the particulars, prescribed in section 417 of this act, concerning the office address of the plaintiff's attorney. Thereupon at least five days' notice of the time and place of the ex- ecution of the reference, or writ of inquiry, must be given to the de- fendant, by service thereof upon the person whose name is sub- scribed to the demand, in the manner prescribed in this act, for ser- vice of a paper upon an attorney in an action." (Id., § 1219.) The Code also provides that where the plaintiff is entitled to judg- ment by default for want of an appearance or pleading in an action to recover a chattel, the court to which he applies for judgment may ascertain and determine the damages to which he is entitled, and the value of the cliattel if necessary, or may direct a reference or % writ of inquiry for ttiat purpose. (Id., § 1729.) Where a reference or a writ of inquiry, directed as prescribed in section 1015 or section 1215 of the Code, has been executed, either party may, apply for an order directing a new hearing or a new writ of inquiry upon proof by affidavit that error was committed to his prejudice upon the hearing or in the report, or upon ihe execu- tion of the writ, or in the inquisition. In a proj)er case the applica- tion inay be granted after judgment has been entered. In that case the judgment may be set aside, either then or after a new hearing or the execution of the new writ as justice requires. (Code of Civ. Pro., § 1232.) Where judgment can be taken only upon application to the court^ the default admits only the facts pleaded and not the legal couclu- sions of liability, or its extent. {Argall v. Pitts, 78 N. Y. 239, 248 ; BuUard v. Sherwood, 85 id. 253, 256.) The very require- ment of an application to the court implies a judicial deter- mination of a proper judgment to be rendered which is not 608 Trial Practice. Settlement of the judgment. at all (kintrolled by the legal conclusions of the pleader. (Id.) Upon default in an action in equity the plaintifE is not entitled to the judgment asked for in his complaint as a matter of course. The defendant may appear and object to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of action, or that the complaint does not set forth an equitable cause of action and does not entitle tlie plaintifE to the relief demanded ; and when the objection is well taken, the plaintifE must fail in the action notwithstanding the defendant's default. [Pumpdly v. Vil- lage of Owego, 45 How. 219.) But where no application to the court is necessary, the default admits both the right of recovery and its amount, and the sum demanded must be awarded. {Bullard y. Shrrvy>n>l S5 ]S". T. 253.) A judgment in favor of one defendant against another cannot be entered upon the default of the latter, unless he has had notice and an opportunity to defend as against his co-defendant. {Edwards v. Woodruff, go N. Y. 396; Ostr under v. Hart, 130 N. Y. 406.) SECTION YIIL Settlement of the Judgment. In an action triable by the court, an interlocutory judgment ren- dered upon a default in appearing or pleading, or pursuant to th« direction contained in a decision or report, may state the substance of the final j udgment to which the party will be entitled. It may also dii-ect that the final judgment be settled by a judge or a referee. In that case final judgment shall not be entered until a settlement thereof, subscribed by the judge or referee, is filed. Where an interlocutory judgment awards costs, they maybe awarded generally without specifying the amount thereof. When the final judgment is directed to be settled and the costs have n^ been taxed, when the settlement thereof is filed, a blank for the amount of the costs must be left in the settlement, and the costs must be taxed, and the blank filled up accordingly by the clerk when the final iudgment is entered. (Code of Civ. Pro., § 1231.) Under the old equity practice the attorney for the successful party prepared a draft of the proposed judgment and submitted it to the attorney for the adverse party ; and unless the latter assented to its entry in that form, the attorney for the successful party then served a copy upon tlie oppnsif-o attorney, with notice of the time Settlement of the Judgment. 609 Form and conteats of the jadgment. when application would be made to the judge at chambers for the settlement. The party served with the copy then prepared amend- ments and attended at the time and place of settlement. At the time fixed bythe notice the judge proceeded to settle the judgment, or after hearing the attorneys for the several parties, took the papers and settled the judgment at a future time. Substantially the same practice may now ve adopted. If the judgment is to be settled by a referee appointed by the interlocutory judgment for that purpose, the attorney for the successful party should procure a certified copy of the judgment from the clerk, deliver it to the referee, and obtain from him an appointment of the time and place of settlement. A copy of the appointment, and of the proposed judgment should then be served upon the adverse party with a notice of the time when and place where it will be presented for settlement. (See Wood v. Zambert, 3 Sandf. 724; 1 Code E. [N.S.] 214.) If the settlement is before a judge the proceedings will be the same, omitting the appointment of the time and place of settlement. The moving party should produce before the judge or referee the pleadings and any other paper or proceeding proper to be considered in settling the judgment. The settlement must be sub- scribed by the judge or referee and filed with the clerk. After the decision of an action at special term cue court may settle the form of the judgment and direct the entry thereof upon a notice of less than eight days. {Parker v. Linden, ^9 Hun, 359.) SECTION IX. Form and Contents of teie Judgment. The Code is silent as to the form of a judgment, and if a judgment is entered which shows the court in which it was ren- dered, what was adjudged, and between what parties, and is signed by the clerk, it cannot be set aside as irregular even though it may not be commendable as a form. But in ordinary practice some attention is given to matters of form even where no form is prescribed by any statute, and where a departure from the forms in ordinary use will not prejudice the party ; and in making up the judgment to be entered in the ac- tion, it is customary to prefix to the mandatory part the title of the cause, the caption, and the appropriate recitals. The title 39 610 Trial Practice. Form and contents of the judgment should specify the court in which the action was brought, and should state in full the names of the parties. The caption should state the term of the court at which the judgment was ordered, the place where the term was held, and the date at which the judgment was entered. (See Barclay v. Brown, 7 Paige,. 245.) It is proper to date tlie decree on the day the court or- dered it entered. (C/ar/e V. C/ar/^, 52 St. Rep. 228.) If the judg- ment is entered upon the report of a referee it should be en- tered in form as though pronounced by the court before one of its justices. (See Hancock v. Hancock, 22 N.' Y. 568.) The re- citals should contain a brief statetment of the proceedings im- mediately preceding and resulting in the judgment, as for example, whether the cause was tried before a jury, the court, or a referee, or whether it was rendered upon default, etc. The judgment should then clearly specify the relief granted, or other determination of the action or of the issue. The recitals, strictly speaking, form no part of the judgment, A recital that a decision has been rendered for the defendant " upon the merits," followed by an adjudication that the plain- tiff's complaint "be and the same is hereby dismissed," is not a judgment dismissing the complaint on the merits. (Whiteside v. Noyac Cottage Assn.,68 Hun, 568.) A recital in a judgment that a defendant was served with process and appeared in the action is not conclusive upon him and may be disproved. (^Matter of Kimball, 18 App. Div. 320.) But the recital is prima facie evi- dence of the fact. (Fuchs v. Devlin, 35 St. Rep. 806; Steinam v. Strauss, 44 St. Rep. 380. Where both an issue of law and an issue of fact have been joined in an action and after the trial of the issue of law the is- sue of fact is tried by a referee, cind the plaintiff has succeeded on both issues, the report of the referee will award the proper judgment upon the whole issue by simply reporting in favor of the plaintiff for the relief demanded in the complaint without referring in his report to the judgment already given by the court upon the issue of law. Upon that report the postea should recite the decision on the issue of law, the order of reference of the whole issue, and the report thereon, and this should be fol- lowed by an award of judgment upon the decision on the issue of law and of final judgment upon the whole issue as reported by the referee. (Breckenridge Co. v. Perkins, 14 App. Div. 629.) The mandatory part of the judgment will vary according ta Form and Contents of the Judgment. 611 In action to determine claims to lands. the nature of the action, the rights or equities established, and the relation of the successful party to the action, as whether plaintiff or defendant. To a certain extent it may be said that judgments in what are known as common-law actions follow a form common to all actions of the same class. But it is not so in equitable actions. A court of equity adapts its relief to the exigencies of the case in hand ; and, therefore, judgments ren- dered in the same class of actions may vary widely in accordance with the varying rights and equities established in the several actions. In action to detennine claims to lands.— Where the com- plaint in an action to determine a claim to real property set forth facts showing that the property was and for the three years next preceding had been in the actual possession of the plaintiff, or the actual possession of the plaintiff and those from whom he derives his title, and the defendant puts this in issue by his answer and succeeds upon that defense, the final judgment in his favor must be for a dismissal of the complaint with costs against the plain- tiff. (Code of Civ. Pro., § 1640.) Where the defendant claims the property in question, or any part thereof, by virtue of an es- tate in remainder or reversion, and the verdict, report, or de- cision finds that he has such an estate and the time when or con- tingency upon which he will be entitled to possession, final judg- ment must be rendered to that effect but must not award damages. (Id., § 1643.) If it is found that the defendant is entitled to the immediate possession of the property, final judgment in favor of the de- fendant must so adjudge, and must award him possession and damages for withholding the property as in an action of eject- ment. (Id., § 1644.) Final judgment for the plaintiff must be to the effect that the defendant, and every person claiming under him by title accruing after the filing of the judgment-roll, or of the notice of the pen- dency of the action, be forever barred from all claim to any estate ' of inheritance, or for life, or for a term of years not less than ten, in the property; or such judgment must be that the defend- ' ant, and every person claiming under him as above stated, be forever barred from all claim to any interest or easement in, or lien or incumbrance upon the said property of any kind or 613 Trial Practice. In an action for waste. nature whatsoever, or of any particular interest, easement, lienor incumbrance specified in said judgment; and the court may direct any instrument purporting to create any such interest, easement, lien or incumbrance to be delivered up or to be can- celed of record ; or two or more of said forms of judgment may be awarded in the same action. If such a judgment is taken upon the defendant's default in appearing or pleading, it shall not award costs to either party, unless it is taken upon a default in answering after the decision of a demurrer to the complaint. (Id., § 1645.) In an action for ■waste. — in an action for waste, ofner than be- tween tenants in common or joint tenants, the final judgment on a recovery by the plaintiff, mnst award him treble damages. Where the action is brought by the person next entitled to the reversion, and it appears, in like manner, that the injnry to the estate in rever- sion is equal to the value of the tenant's estate or unexpired term, or that it was done malicioush', the final judgment mnst also award to the plaintiff the forfeiture of the defendant's estate, and the pos- session of the place wasted. (Code of Civ. Pro., § 1655.) If the action is brought by a joint tenant or tenant in common a^^ainst his co-tenant, and plaintiff recovers, he may elect between final judgment for treble damages or to have partition of the prop- erty. (Id., § 1656.) If he elects to have partition, then, after the rights and interests of all the parties in the property have been ascer- tained, an interlocutory judgment for the partition ard sale of the property must be rendered, and the subsequent proceedings thereon will be the same as in an action for the partition of the property, except that tlie plaintiff may elect to take final judgment for the single damages awarded to him, or that, in making the partition or in dividing the proceeds of a sale, so much of the share of the de- fendant in the real property, or the proceeds thereof, as will be suffi- cient to compensate the plaintiff for his single damages and the costs of the action other than the expenses of making the partition or sale be laid off or paid, as the case may be, to the plaintiff. The residue of the property or proceeds not laid off or distributed to the plaintiff or the defendant must be laid off or paid to the persons entitled thereto according to their respective rights and interests. (Id., §§ 1657, 1658.) (For the judgment and proceedings in partition, see chap, VIII, ante, p. 442.) Form and Contents of the Judgment. 613 lu other real actions. In Other real actions. — Final judgment for the plaintiff in an action for a nyisauce may award him damages, or direct the re- moval of the nuisance or both. (Code of Civ. Pro., § 1662.) The damages which may be included in the judgment for the plaintifl in an action for wrongfully cutting down and carrying away trees etc., or for forcible entry and detainer have been already noticed. (See ante, p. 593.) (For the appropriate judgment in actions for ejectment, parti- tion, dower, or foreclosure, see chap. VIII, ante, p i/^j.^ In replevin. — "Where an action is brought to recover two or more chattels, and the verdict, report, or decision awards a portion to one party and a portion to the other, the final judgment must award to each party the same relief with respect to the finding in his favor as if separate judgments 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. (Code of Civ. Pro., § 1728.) Final judgment for the plaintiff in an action of replevin must award him the possession of the chattel recovered by him, with his damages, if any. If a chattel recovered was not replevied, or if after it was replevied it was delivered to the defendant, or to a per- son not a party upon a claim of title, the final judgment must award to the plaintiff the sum fixed as the value of the chattel, to be paid by the defendant if possession is not delivered to the plaintiff. (Id., § 1730. See Phillips v. Melville, 10 Hun, 211.) Final judgment in favor of the defendant, who has demanded judgment for the return of a chattel which has been replevied and afterward delivered to the plaintiff or to a person not a party, must award to him possession thereof with his damages, if any, and it must also award to him the sum fixed as the value thereof, to be paid by the plaintiff, if possession is not delivered by the defendant. But if the plaintiff is the general owner of the chattel, but it was rightfully restrained doing damage, and its value is greater than the damages sustained by the defendant by the injury for which it was distrained, or if 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 by reason thereof, then the final judgment in favor of the defendant must awai'd him the sum fixed as the amount of the damages sustained by such injury, or the sum fixed as the value of the special^ fili Trial Practice. la an action to foreclose a lien upon a chattel. property, or charged upon the chattel by reason thereof, as the case demands; and, if it is not collected, the delivery of the chattel; or, if the chattel has not been replevied, or has been returned to him after replevin, that he is entitled to the possession thereof until the sum so awarded is collected or otherwise paid. (Code of Civ. Pro., § 1730. In an action to foreclose a lien upon a chattel. — In an ac- tion brought in the Supreme Court, the City Court of New York, or a County Court to foreclose a lien upon a chattel, a final judgment in favor of the plaintiff must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and costs, if any, by a referee appointed thereby, or an officer des- ignated therein, in like manner as where a sheriff sells personal prop- erty by virtue of an execution, and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the amount of the lien, and the costs of the action. It must also pro- vide for the payment of the surplus to the owner of the chattel, and for the safe-keeping of the surplus if necessary until it is claimed by him. If a defendant upon whom the summons is personally served is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly. (Code of Civ. Pro., § 1739.) In matrimonial actions. — Judgment in an action to annul a marriage will adjudge the marriage contract void, and that the mar- riage be annulled. If it is annulled on the ground of force, duress, or fraud, it may make provision for the education and maintenance of the children of the marriage, if any, out of the property of the gnilty parent. (Code of Civ. Pro., § 1751.) If the action is based upon the grouud that the former husband or wife of one of the par- ties was living, the former marriage being in force, and it appears that the subsequent marriage was contracted in good faith hj at least one of the parties, and with full belief that the former husband or wife was dead, or without any knowledge on the part of the in- nocent party of such former marriage, that fact should be expressly adjudged, and the judgment should specify the issue of the subse- quent marriage, born or begotten before the final judgment, who are entitled to succeed to the real and personal estate of the parent who, at the time of the marriage, was competent to contract, and should award the custody of such issue to such parent. (Id., § 174:5.) The judgment in an action for divorce brought by the wife on the ground of adult&ry may, besides divorcing the parties and dis- Form and Contents of the Judgment. 615 In matrimonial actions. fiolving the man-iage, require the detendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, due regard being had to the circumstances of the respective parties. (Id., § 1759.) And where an action for divorce upon the ground of adultery is brought, by either the husband or the wife, the final judgment may award costs in favor or ag&inst either party, and may direct the same to be paid out of any property sequestered, or other- wise in the power of the court. (Id., § 1769.) The court may also, in the final judgment, give such directions as justice requires for the ■custody, care, and education of any of the children of the marriage (Id., § 1771), and if it requires the husband to provide for the edu- ^?j An application for an order is a motion. (Id., § 768.) Motions are either enumerated or non-enumerated. Enumerated motions are motions arising on special verdict, issues of law, cases, exceptions, appeals from judgments sustaining or overruling demurrers, appeals from a judgment or order granting or refusing a new trial in an inferior court, appeals by virtue of sections 1346 and 1349 of the Code of Civil Procedure ; agreed cases submitted under section 1279 of that act, and appeals from final orders and decrees of Surrogates' Courts, and matters provided for by sections 208s to 2099 and 2 1 38 of said act. (Rule 38.) An appeal from an order sustaining or overruling a demurrer (^Reynolds v. Freeman, 4 Sa.idf. 702); an appeal from an order appointing an adminis- trator {Brockway v. Jewett, 16 Barb. 590); a motion for a new trial on a case or bill of exceptions {Ellsworth v. Gooding, 8 How. i; Mechanics Banking Association v. Kiersted, 4 Duer, 639; 10 629 630 Trial Practice. Notice of motion. How. 400) ; an appeal from an order of the County Court grant- ing a new trial on the judge's minutes (Harper v. Allyn, 3 Abb. [N. S.] 186); a motion for a new trial on- the ground of newly- discovered evidence {Chandler v. Trayard. 2 Cai. 94; Warner v. Western Trans. Co., 5 Rob. 490; Seeley v. Chittenden, 10 Barb. 303); a motion for a judgment upon a referee's report subject to the opinion of the court, on a case stated (Anonymous, 7 Cow. 470); a motion to set aside the report of a referee on the merits {Rem- sen V. Isaacs, 1 Cai. 22 ; Clinton v. Elmendorf, 3 Johns. 143 ; Foden v. Sharp, 4 id. 183); a motion to confirm a referee's report on a reference pursuant to an interlocutory decree {Empire Build- ing, etc., Associatiou v. Stevens, 8 Hun, 515); and a motion for judgment notwithstanding the verdict {Schermerhorn v. Schermer- horn, 5 Wend. 513), have been held to be enumerated motions. M on-enumerated motions include all other questions submitted to the court (Rule 38), such as a motion to set aside a referee's report for irregularities {Remsen v. Isaacs, i Cai. 22 ; Foden v. Sharp, 4 Johns. 183); a motion to set aside a verdict for irregular conduct to 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. R. 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 mandamus {People v. Commissiot^ers, 6 Wend. 559), SECTION II. Notice of Motion. When a notice of motion must be given. — The rules of court provide that all questions for argument, and all motions made at Special or Trial Terms, must be brought before the court on a notice, or, when a notice of less than eight days is prescribed by the judge or court under section 780 of the Code, by an order to show cause. (Rule 37.) There are, however, certain classes of orders which may be granted upon an ex parte application. These are, generally speaking, orders which may be made by a judge out of court, such as an order of arrest (Code of Civ. Pro., § 556), an injunction Notice of Motion. 631 When a notice of motion must be given. ■order in certain cases (Id., §§ 606, 609), an order for the examin- tion of a person or party as a witness before trial (Id., § 872), an order for the substitution of attorneys, orders for an enlarge- ment of time to plead, or to take any other proceeding in an action, an order to stay proceedings in an action, and an order to vacate or modify an ex parte order other than one granting a provisional remedy, when the application is addressed to the judge who made it. (Id., § 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. (Jsnard v. Cazeaux, I Paige, 39; Hewitt v. Howell, 8 How. 346; Ostrander v. Harper, 14 id. 16; Rice V. Ehele, 51; N. Y. 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 rem- edy 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 in the action which he had reason to anticipate, but not as to the substitution of a co-defendant as plaintiff in the action. {McLean 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 refer- able 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 suf- ficient, 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. Remsen, 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 {Dic- kerson v. Spaulding, 7 Hun, 288); and third persons with whom a 6H2 Trial Practice. Length of notice. 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 Commercial Life Ins. Cb., 9 Abb. [N. S.J 103.) Where a party is entitled to notice of an application to the court for an order affecting a substantial right, and no notice is given him, he is entitled to have it vacated on showing simply want of notice. He is not obliged to attack the order upon the merits, or to state facts showing reasons why the order should not be granted with- out notice. Such an order cannot be sustained upon the ground that, for aught that appears, the same order would be made after notice given, {^heeler v. Emmeluth, 121 N. Y. 241.) Length of notice. — Where special provision is not otherwise made by law or by the general rules of practice, if notice of a motion is necessary, it must, if personally served, be served at least eight days before the time appointed for the hearing, un- less an order to show cause is obtained. (Code of Civ. Pro., § 780; Rule 40.) The phrase " where special provision is not otherwise made by law " in the section cited refers only to such special provisions as prescribe a shorter notice than eight days. {Citizens Savings Bank v. Bauer, 49 Hun, 238.) If service is made by mail, the notice must be served sixteen days before the time appointed for the hearing. (Id., § 798.) 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; Beal\. 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, ap- plies 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 mu.<;t be personal, or by leaving it at the owner's residence with some person of suitable age and discretion, at least fourteen days previous to theapplication. Service without the Notice of Motion. 633 Form and contents of notice. State, if personal, must be made at least twenty days previous to the application. (Code of Civ. Pro., § 1564.) 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. Willoox, '2, GbJi . 104.) It must specify a certain time ; it cannot be in the alternative in that respect. {Crane v. Grofut, 1 How. 191.) But a party, upon being served with a, notice of motion, may serve his adversary with a counter- notice tbat if such motion is granted, he will then move the court for the relief specified in the counter-notice. {GlarTc v. GlarTc, II Abb. N. C. 333. And see Fowler v. Hurbur, J Rob. 52.) If the application is an enumerated motion, it must be noticed for the first day of the term, except in the appellate division of the Supreme Court. (Rule 40; Rogers v. Pearsall, 21 App. Div. 389.) Non-enumerated motions in the Supreme Court, except in the first and second districts and motions noticed to be heard in Erie county, must be noticed for the first day of the term or sitting of the court, and not for a later day, unless suffi- cient cause be shown and contained in the affidavits served for not giving notice for the first day. In other courts such motions may be made on any day designated by the judges thereof. In the Appellate Division such motions may be no- ticed for a y day in the term. (Rule 21.) 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. [Bowman v. Sheldon, 5 Sandf. 657. _, Where the motion €34 Trial Practice. Form and contents of notice. is for irregularity the notice must specify the irregularity com- plained of. (Rule 37; Lewis v. Graham, 16 Abb. 12e.; Bishop v. Empire Trams. Go., 5 Jones & Sp. 12; Barker v. Cool% 40 Barb. 254 ; 25 How. 190 ; 16 Abb. 83 ; PerUns v. Mead, 22 How. 476 ; Selover wForles, id. 477 ; Lahr v. Fisher, 2 Rob. 669.) And it is not sufficient to state the irregularity in the moving affidavits only. {Montrait v. Rutchins, 49 How. 105.) The moving party is deemed to have waived any irregularities not specified. {Mayor of N. Y. V. Lyons, 24 How. 280.) But there are certain cases v/here the rule as to specifying irregu- larities does not apply (See Kellogg v. Howell, 62 How. 280) ; and the issuing of an execution in violation of a stay of proceedings {Jack- son V. Smith, 16 Abb. 201 ; 25 How. 476) ; the entry of a judgment by confession upon an insufficient statement ( Winnehrenner v. Fd' gerton, 8 Abb. 419 ; 30 Barb. 185 ; 28 How. 476) ; or the entry of judgment against a minor {Peck v. Goler, 20 Hun, 534), are substan- tial grievances, and not irregularities, within the meaning of the rule. ITotice 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. Brennam,, 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 ; Martin v. Kavr mi,se, 2 Abb. 390 ; Walkenshaw v. Perzel, 32 How. 310 ; 7 Rob. 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. Yamdenburgh, 1 How. 212.) 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 ( Wardellv. Eden, 2 Johns. Cas. 121); Notice of Motion. 635 Service of notice. 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 attor- neys for the plaintiffs although they have settled with their client and have dissolved their partnership. {Miller v. Miller, 37 How. I. See Drury v. Russell, 27 id. 130.) Service may be made by delivery to the attorney personally (Code of Civ. Pro., § 796); or through the post-office by deposit- ing the notice, properly inclosed in a post-paid wrapper, in the post-office or in any post-office box regularly maintained by the government of the United States and under the care of 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 such adesiguatiou, at his place of residence, or tlie place where he keeps an ofSce, according to the best information which can conveniently be obtained concerning the same ; or, during his absence from his ofBce, 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, witliin the State, between six o'clock in the morning and nine o'clock in the evening, with a per- eon 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 636 Trial Practice. Proof of service. 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 regulatioiis, 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 ia 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 Buch provisions must be strictly complied with. (See Id., § 802.) Proof of serTicBi — An order cannot be taken upon a default in appearing without due proof of the service of the notice. (Sec Rule 37.) This is done by obtaining an admission of due service of the notice, indorsed upon a copy tnereof and signed by the attor- ney served, or by an afHdavit 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. {Walken- shaw V. Perzel, 32 How. 310; 7 Rob. 606; Bates v. James, i Duer^ 668. S&e: Crockett V. Smith, 15 Abb. 62.) But when a motion was originally noticed for leave to add parties defendant and for an injunction and receiver, it was held that the motions wfre 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. 310; 7 Rob. 606. SECTION III. Order to Show Cause. Ordinarily a party desiring to make an application to a court or judge for an order affecting the rights or interests of the adverse party must give such party eight days' notice of the motion. But there are cases in which a delay of eight days in making the appli- cation would defeat its object and a strict adherence to the requirement as to notice would amount to a denial of justice. To avoid this, the Code permits a party on an ex parte application based upon an affidavit showing grounds therefor to obtain an Order to Show Cause. 637 Order to show cause takes the place of the notice of motion. order requiring the adverse party to show cause why the applica- tion should not be granted and directing therein that service of the order less than eight days before it is returnable shall be sufifi- cient. This order may be made by the court, or a judge thereof, or a county judge of the county where the action is triable or in which the attorney for the applicant resides. (Code of Civ. Pro., § 780.) Such an order may be granted although the Code expressly provides that at least eight days' notice shall be given of the appli- cation for the particular relief desired. (Citizens' Savings Bank m. Bauer, 49 Hun, 238.) But an order to show cause can in no case be granted unless a special and sufficient reason for requiring a shorter notice than eight days is stated in the papers presented, and the party in his affidavit states the present condition of the action, and whether it is at issue, and if not yet tried, the time appointed for holding the next special or trial term where the action is triable. Except in the first judicial district the order must also 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. In the first judicial district all orders to show cause must be returnable at the Special Term for the hearing of litigated motions except in cases where the special rules of the first judicial district requires the motion to be made at some other term of the court. (Rule 37.) The order to show cause takes the place of a notice of motion and cannot be substituted for the notice except in the manner particularly pointed out in section 780 of the Code of Civil Pro- cedure and in the rule of court above cited. {Proctor v. Soulier, 82 Hun, 353.) When the order takes the place of a notice of a non-enumerated motion and is made returnableat a Special Term of the Supreme Court, to be held elsewhere than in the first or second districts or in Erie county, it must be made returna! leon the first day of the term or sitting of the court and not for a later day unless sufficient cause is shown in the affidavit upon which it is granted for not being made refUrnable on the first day. (Power V. Village of Athens, 19 Hun, 165 ; Rule 21.) When the motion is for irregularity the order must specify the irregularity com- plained of. (Rule 37.) A party has no absolute right to an order to show cause, and it is discretionary with the court or judge applied to whether the 638 Trial Practice. Motion papers. order shall be granted or whether the party shall be left to the usual course of proceeding by way of a notice of motion. {Sixth Avenue R. R. Co. v. Gilbert EL R. Co., yi N. Y. 430.) The order when granted is in effect merely a short notice of motion and is not to be regarded for any purpose as indicating the opinion of the court or judge upon the merits of the application. {Thomp- son V. Erie Ry. Co., 9 Abb. [N. S.] 233.) SECTION IV. Motion Papers. Affidavits. — Where the grounds upon which a motion is based do not appear from the papers in the action an affidavit setting forth the facts relied upon in support or opposition to the motion may be necessary. The word '' affidavit" as used in the Code includes a verified pleading in an action or a verified petition or answer in a special proceeding. (Code of Civ. Pro., § 3343.) An affidavit is usually entitled in the cause and should be so entitled in all cases where the action is then p>ending, except where it is attached to and refers to some other paper so entitled. But the want of a title or a defect in the title of an affidavit does not impair it if it intelligibly refers to the action or special proceeding in which it is made. (Id., § 728 ; Lamkin v. Openheim, 86 Hun, 27.) The title includes the name of the court. (Bowman v. She/don, 5 Sandf. 657.) The venue is an essential part of an affidavit and the coarts have held that without the venue an affidavit is a nullity. [Cook v. Staats, 18 Barb. 407 ; Lane v. Morse, & How. 3Q4 ; Thompson v. Burhans, 61 N. Y. 52; People v. DeCamp, 12 Hun, 378; McManus v. Western Assurance Co., 22 Misc. 269.) But on a motion to dis- miss, vacate or set aside a proceeding in an action upon the ground that the venue was omitted or defective in the affidavit upon which the proceeding was based the court may receive proof that the affidavit was in fact duly verified before the proper officer within his jurisdiction and thereupon order the amendment of the affidavit. {Babcock v. Kuntzsck, 85 Hub, 33.) Statements before the words "being duly sworn," are mere recitals and will not be deemed to be sworn to. [Staples v. Fair- child, 3 N. Y. 41 ; Payne v. Young, 8 Id., 158; Ex parte Bank of Motion Papers. 639 Afifidavits. Monroe, 7 Hill, 177.) But a statement of the residence of the deponent by way of recital may be taken as showing such resi- dence where the statute requires that the affidavit shall be made by a resident of a certain state, county or city, but does not require that the fact of such residence shall be stated in the affi- davit. {People V. Cady, 105 N. Y. 299.) When the affidavit, to be effectual, must be made by one hav- ing a certain character or personal capacity wherein he acted, or is 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. i.) An affidavit should contain a full and concise statement of the facts relied on. Mere conclusions of the affiant are not sufficient. (See Chaine v. Wilson, 8 Abb. 78, 107; Depew v. Leal, 2 id. 131, 156; McCulloch V. Aeby & Co., 31 St. Rep. 125; Tim v. Smith, gi N. Y. 87 ; Stewart v. Brown, 16 Barb. 367 ; Dreyfus v. Otis, 54 How. 405 ; Smith v. Davis, 29 Hun, 306; 3 Civ. Pro. R. 74.) The affidavit should be made by a person having personal knowledge of the facts, if his affidavit can be procured ; and when so made, the facts should be stated positively. {Whit- lock V. Roth, 10 Barb. 78 ; 5 How, 143.) But if, from the cir- cumstances of the case, the facts cannot be stated on posi- tive 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 cannot be procured. {Bennett v. Edwards, 27 Hun, 352; City Bankw. Lumley, 28 How. 397; Dreyfus v. Otis, 54 id. 405; Cran- dallv. Bryan, 15 id. 48; 5 Abb. 162; Blason v. Bruno, 21 How. 112; 33 Barb. 520; 12 Abb. 265; DeWeerth v. Feldner, 16 id. 295; 25 How. 419; Cook V. Roach, 21 id. 152; Sotow v. Risenberger, 25 id. 164; Dolzv. Atlantic, etc.. Trans. Co., 3 Civ. Pro. R. 162; Crib- ben V. Sehillinger, 30 Hun, 248; Buellv. Van Camp, 119 N. Y. 160.) An affidavit on information and belief omitting the source of information, and failing to state why the person having posi- tive knowledge does not depose, is insufficient, {Steuben County Bank V. Alberger, 78 N. Y. 252; Yates v. North, 44 id. 271, 274; 640 Trial Practice. Affidavits. Dewey v. Greene, 4 Denio, 93; Tallman v. Bigelow, 10 Wend. 420; Buellv. Van Camp, 119 N. Y. 160; Rome, etc., R. R. Co. v. City of Rochester, 46 Hun, 149; Matter of Par risk, 28 App. Div. 22), unless the facts so stated refer to some intended act of the ad- verse party and such intent is not denied on the hearing. {Finegan V. Eckerson, 32 App. Div. 233.) If the facts are stated posi- tively by the deponent, he need not give the source of his knowledge or his means of information. {Pierson v. Freeman, jj N. Y. 589.) Statements in affidavits will be presumed to have been made on personal knowledge, unless stated to have been made on information and belief, and unless it appears affirma- tively and by fair inference that they could not have been and were not on such knowledge. {Crowns v. Vail, 51 Hun, 204.) The court is not bound to act upon an affidavit stating facts positively as if within the knowledge of the affiant if the facts and circumstances showing personal knowledge are not set forth and from the situation of the parties the presumption is that the affiant had not personal knowledge of the facts alleged. {Brown V. Keogh, 39 St. Rep. 225; Thomas v. Dickenson, 33 St. Rep. 786; Crowns v. Vail, 51 Hun, 204; See also, Tim v. Smith, 93 N. Y. 91.) An affidavit upon information and belief without any statement of the sources of information or grounds of belief has no weight as against a positive affidavit. {Harris v. Taylor, 35 App. Div. 462.) An allegation of want of knowledge or information sufficient to form a belief as to the existence of certain facts while suffi- cient to put those facts in issue as a matter of pleading is utterly worthless as a denial in an affidavit. {Simmons v. Craig, 137 N. Y. 550; Matter of McLean, 62 Hun, i; Matter of New York, L. & W. Ry. Co., 99 N. Y. 12; Rome, etc., R. R. Co. v. City of Rochester, 46 Hun, 149.) It has been held that an affidavit is sufficient though not signed by the deponent, if his name appears in the body of it, and it is duly sworn to. {Haffv. Spicer, 3 Cai. 190; Jackson v. Virgil, 3 Johns. 540; Millius v. Shaffer, 3 Den. 60; Souk v. Chase, i Abb. [N. S.] 48; I Rob. 222. But see Hathaway v. Scott, 11 Paige, 173.) The omission of the name of the deponent from the body of the instrument is not as a general rule, a fatal defect where the deponent duly subscribes and swears to the same. {People v. Sutherland^ &1 N. Y. i.) Motion Papers. 641 Affidavits. 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 y. Eerisselaer Common Pleas, 6 Wend. 543), and an affidavit is good although the officer omits to state that the defendant appeared before him. {Jackson v. Gumaer, 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. Shepherd, 2 .[lill, 413 ; Zivingstoti v. Chetham, 2 Johns. 479 ; Baker v. Cook, 16 Abb. S3; 40 Barb 254; 25 How. 190; Bank 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, epecial 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 any 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 piu-pose. "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, and accompanied with the like certificates as to hisoificial charac- 41 643 Trial Practice. Affidavits. terand 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 words " the State " as used in this section refer in every in- stance to the State of New York. {Turtles. Turtle, 31 App. Div. 49; Ross V. Wigg, 34 Hun, 192 ) An affidavit taken before a pro- bate judge in Vermont {Loop v. Northup, 59 Hun, 75), or before a notary public outside of the State of New York {Turtle v. Turtle, 31 App. Div. 49; Stanton v. United States Pipe Line Co., 90 Hun, 35), cannot, in the present state of our laws, be read in our courts. Whenever application is made ex parte, on affidavit to a judge or court for an order, the affidavit shall state whether any pre- vious 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. And for failure to comply with this rule, any order made on such application may be revoked or set aside. (Rule 25.) This rule applies to proceedings supplementary to execution and to every application for an order or judgment made in any action or special proceeding. (Id.) When an affidavit of merit 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.) When a party desires to make of oppose a motion, and a per- son not a party having facts material to the case refuses to make an affidavit to be used upon the hearing, the court or judge au- thorized to make an order in the cause, may, in his or its discre- tion, on an ex parte application, 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 affida- vit 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 «pon or without notice. The person to be examined may be Motion Papers. 643 Folios to be nambered, etc. subpcEnaed, and compelled to attend, as upon the trial. The de- position, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a dififerent disposition thereof, (Code of Civ. Pro., § 885. See IVil- liams V. Western Union Tel. Co., 3 Civ. Pro. R. 448.) It is seldom that it is necessary to resort to this remedy, and when it becomes necessary the practice will be found similar to that on taking the deposition of a witness before trial. (See ante, p. 144,) Folios to be numbered, etc.— The general rules of practice require that every pleading, deposition, affidavit, case, bill, ex- ceptions, report, paper, order or judgment, exceeding two folios in length, shall be distinctly numbered and marked at each folio in the margin thereof; that all copies, either for the parties or the court, shall be numbered or marked in the margin so as to conform to the original draft or entry, and to each other, and be indorsed with the title of the cause; that all the pleadings and other proceedings and copies thereof shall be fairly and legibly written or printed, and that if not so written or printed and folioed and indorsed as aforesaid, the clerk shall not file the same, nor will the court hear any motion or application founded thereon. They also require that all pleadings or other papers in an ac- tion or special proceeding served on a party or an attorney or filed with the clerk of the court, must comply with section 796 of the Code of Civil Procedure and must be written or printed in black characters; and that no clerk of the court shall file or enter the same in his ofiS.ce unless it complies with this rule ; but provide that the party upon whom the paper is served shall be deemed to have waived the objection for non-compliance with this rule, unless within twenty-four hours after the receipt thereof he returns such papers to the party serving the same, with a statement of the particular objection to its receipt ; but that this waiver shall not apply to papers required to be filed or delivered to the court. (Rule 19.) Section 796 of the Code above referred to relates to the weight and quality of the paper and the color of the ink used. Service of motion papers. — The notice of motion or the or- 644 Trial Practice. On enumerated motions. der to show cause must be accompanied by copies of the affida- vits and papers upon which the motion is to be made (Rule 21), excepting such papers as have already been served upon the ad- verse 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 Benthuysen 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 non-enumerated mo- tioH. {Strong; V. Plainer, $ Cow. 21^ On enumerated motions. — Except in the Appellate Division of the Supreme Court, enumerated motions shall be noticed for the first day of the term by either pJHty on a BOtke of eight days. " The papers to be furnished on such motions at Special Terra shall be, a copy of the pleadings when the question arises on the pleadings, or any part thereof, a copy of the special verdict, re- turn 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 opposite party, except upon trial of issues at law, at least eight days before the time for which the matter may be noticed for argument. If the party whose duty it is to furnish the pa- pers 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 calendar (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 ques- tion arises on special verdict, and by the party demurring on the trial of issues of law, and in all other cases by the party making the motion. Each party shall prefix to his points a concise states ment 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." (Rule 40 ) At What Court or Term Motion May be Heard. 645 In the first judicial district. SECTION V. At what Court or Term a Motion may be Heard. 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 case 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 else- where must be made by the court, as the court has in other dis- tricts of the State. (Lachenmeyer v. Lachenmeyer, 26 Hun, 542.) In the first judicial district litigated motions are heard at Spe- cial Term, Part i. This term commences on the first Monday of each month and continues until the last Friday preceding the first Monday of the succeeding month, and is held every day except Saturdays, Sundays, and legal holidays. Motions may be noticed for any day of the term. A calendar is made up for each day, and is called at eleven o'clock in the morning at the opening of the court. No motion will be heard that is not upon the cal- endar. To place a notice on the calendar a note of issue must be filed with the clerk two days before the day on which the motion is noticed to be heard, except where an order to show cause is granted, when the clerk will place the motion upon the calendar at any time before the day of hearing upon the exhibition to him of the order to show cause and the filing of a note of issue. Ex parte business is transacted at Special Term, Part 2. This term is open every day of the year except Sundays and legal hol- idays. All applications for all court orders ex parte, or by con- sent or where notice is not required, or has been waived, must be made at this term, and any ex parte court order granted by any justice of the court other than the one assigned to hold this term will not be entered by the clerk. All applications for judgments in actions where the defendant has failed to appear, or has waived notice of motion for judgment, or has consented thereto, except 646 Trial Practice. In other districts. in actions for divorce, must be made at this term, and not to any other court or justice. All orders for the examination of parties or witnesses in supplementary proceedings, or to perpetuate testi- mony, or for the examination of parties before trial, or for the examination of witnesses under letters rogatory, or foreign commissions, or in aid of attachment, or for any other purpose, or in any proceeding must be made returnable before the justice assigned to hold this term unless made retusmable before a referee or commissioner under express statutory authority. Care should be exercised in distinguishing between court orders and chamber orders ; and an application for an order which can only be made by the court at Special Term should not be noticed for a Special Term to be held at chambers, although the judge acting at chambers also holds in the same room a special term for the hearing of non-enumerated motions. (See Bates v. United Life Ins. Ass'n, 68 Hun, 144.) But a judge's order is not made invalid by the mere fact that it was made in court. An order made by a justice holding cham- bers and Special Term for the hearing of non-enumerated mo- tions may be presumed to have been made by the justice as such and not by the court although the order has the Special Term caption, uses the word court in the body thereof, and is signed with the initials of the justice with directions to enter. [Lowerre V. Owens, 14 App. Div. 215 ; Regan v. Traube, 16 Daly, 154.) 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 triable, except that it cannot be made in the first judicial district if the action is triable elsewhere. (Code of Civ. Pro., § 769. See Rice V. Ehle, 65 Barb. 185 ; 46 How. 153.) But the above provi- sion does not apply to a case 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 (Code of Civ. Pro., §769), nor to a case where one motion is neces- sarily made and entitled in several actions triable in different counties and judicial districts. {Phillips v. Wheeler, 2 Hun, 603; 6 N. Y. Sup. Ct. [I. & C.J 306). It includes only such motions At What Court or Term Motion May be Heard. 647 In districts other than the first. as are made during the pendency of or relate to the suit, and in no manner affects or controls such motions as may be made in other proceedings succeeding its final termination by a judgment. {Phillips V. Wheeler, 67 N. Y. 104; Curtis v. 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, 163 ; Chubbuck v. Morrison, 6 id. 368 ; Askins v. Hearns, 3 Abb. 185); or the county to which the venue has subsequently been removed by order of the court. {Bangs v. Seldon, 13 How. 374.) Counsel may agree to have a motion heard and decided at any Special Term in any county in the state, and Special Terms have jurisdiction to hear and decide motions from any part of the state (Rice v. Ehle, 4,6 Yiovf. 153; 65 Barb. 185); and a justice holding an adjourned Special Term at chambers "for ex parte business only," may, if so inclined, hear a contested motion brought there by consent. (Matter of Wadley, 29 Hun, 12.) The general rules of practice provide that non-enumerated mo- tions shall be heard at Special Term except when otherwise directed by law, and that contested motions shall not be noticed or brought to a hearing at any Special Term held at the same time and place with a trial term, except in actions upon the <;alendar for trial at such term, and in which the hearing of the motion is necessary to the disposal of the cause, unless otherwise ordered by the justice holding the court ; and except, also, that '' in counties in which no Special Term distinct from a trial term is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the trial and Special Term in the county in which such actions are triable. {Rule 38.) This rule is primarily for the guidance of attorneys in giving notice of motions and bringing them on for hearing. It does not prohibit a judge holding both a special and trial term at the same time and place from entertaining a motion noticed for such term if in his judgment the rights and interests involved render it proper that he should do so. He may refuse to hear the motion upon the ground that it was irregularly noticed, but if he chooses to hear the motion the rule constitutes no limitation upon his power. (Matter of Argus Co., 138 N. Y. 557.) 648 Trial Practice. What judges may make orders. 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, how- ever. Code of Civ. Pro., § 239.) SECTION VI. What Judges may Make Orders. 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 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 district. {Hull v. Hart, 27 Hun, 21.) 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 proceeding is brought, may make the same out of court, and with like effect. (Code of Civ. Pro., § 354.) But in an action brought in the City Court of New York an order cannot be made by an officer 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. (Id., § 327.) When county judge has jurisdiction. — The provision of sec- tion 772 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 What Judges May Make Orders. 6i9 When county judge has jurisdiction. the action is not triable in his county and although the attorney for the moving party does not reside theiein. {Kennedy v. Sim- mons, I Hun, 603 ; 4 N. 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 jurisdiction to hear and decide a contested motion. {Par- menter v. Roth, 9 Abb. [N. S.J 385.) But this rule is subject to qualifications. Section 772 of the Code, giving a county judge power in certain cases to make ex parte orA^xs, expressly provides that such an order, unless 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 therefore a county judge may make an order to show cause before him, why a temporary injunction should not be granted. (Babcock v. Clark, 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 v. Davis, id. 270.) A county judge within his county possesses, and uf>on 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.) 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., 5 354) A special county judge possesses all powers and may perform all the duties of a county judge out of court. {Kinney v. Roberts 6 Co., 26 Hun, 166.) fi50 Trial Practice. Opposing the motion. SECTION VII. 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 requirement 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 facie 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, especially upon all material points. A denial of knowl- edge or information sufficient to form a belief as to an essen- tial fact stated in the moving affidavits, or an averment of want of such knowledge, raises no issue, as to such fact and is an absolute nullity. {Simmons v. Craig, 137 N. Y. SS^O 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 w. Maker, 2 Bosw. 690; Draper v. Hensingsen, 16 How. 281.) SECTION VIII. Proceedings 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 Proceedings on the Hearing. 651 Inability of judge to hear. 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 in- sufficient. (Jackson V. Giles, Col. & Cai. 442; 3 Cai. 88.) If the party making the motion does not appear, the court must deny the motion on the filing of the copy, notice of motion or order to show cause. (Rule 37.) This rule, so far as it permits a judgment by default or by the consent of the adverse party, does not extend to an action for a divorce, or limited separation, or to annul a marriage. (Id.) Where an order is taken by default the party obtaining it can only take what he asks for in his notice. {Northrop y. Van Dusen, 5 How. 134; Rogers v. Toole, 11 Paige, 212; Jones v. Cook, 11 Hun, 231.) He cannot be granted any relief 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 beraa 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. (^Gaines v. Brovm, 3 Cai. 88, note.) If the notice itself is detective tLie adverse party must attend and raise the obiection. {Hoyt v. OampbeU, Col. 6 Cai. Cas. 129.) Defects in the proceedings of the moving party are deerued 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 not;ice. {Utica City Bank v. Buell^ 652 Trial Practice. The argument. 9 Abb. 385; 17 How. 498 ) And if he enter into the aro-nmen*- he waives all objections to the coming on of the motion. {Roosevelt v. Dean, 3 Cai. 105.) Preliminary objections may be heard and decision thereon reserved until after a hearing upon the merits so that the whole motion may be disposed of together. (See Lowber v. Mayo^ of N. Y., 5 Abb. 327, nota) The argument. — The party noticing the motion or obtaiaing 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 By Co., 9 Abb. [N. S.] 233 ; Town of Middleton v. Rondout <& 0. E. 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. Mart, 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 tiuie to prepare affidavits unless good reason is shown. {Jackson V. Ferguson, 3 Cai. 127.) TVliere new matter is set up in tlie affidavits read in opposition tj 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 his opponent (Id.)^ unless by express statutjry authority. (Code ot Civ. P o , §§ 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 consenting that it be received. (See Kibbe v. Wetmore, 31 Hun, 424.) On a motion to vacate an order granting an attach- ment the plaintiff cannot use new affidavits where the motion is- made on the original papers. If the moving party makes his ap- plication upon proofs the plaintiff may sustain, by new proofs,. Proceedings on the Hearing. 653 The argument. his right to the attachment upon any of the grounds stated in the warrant. (Code of Civ. Pro., § 683; Steuben County Bank v. Alberger, 75 N. Y. 179. And see Code of Civ. Pro., §§ 568, 627; Childs V. Fox, 18 Abb. 112; 2 Rob. 650.) It is questionable whether afifidavits in respect to the credibility of a party can properly be read on a motion. If received, an op- portunity to produce counter-affidavits should be given. {Merritt V. Baker, ir How. 456. See Callen v. Kearney, 2 Cow. 529; Clark V. Frost, 3 Cai. 125.) It is a matter of common practice to show by affidavits read upon the hearing that the persons making the affidavits read by the other party are of notoriously bad charac- ter when such is the fact and the court otherwise might be misled, and to permit the party producing the discredited affi- davits, to produce other affidavits sustaining the character of the affiants, the hearing in the meantime to be held open or ad- journed for that purpose. Where leave is given to the moving party to produce affidavits in answer to new matter set up by his opponent 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. (Garcie v. Sheldon, 3 Barb. 232.) A judge before whom a motion is made at Special Term can- not direct the responding party to appear before him and be ex- amined orally touching the matter of fact involved in the con- troversy, and upon his refusing to submit to such examination, determine the motion against him as upon confession of the alle- gations of the moving party. {Meyer v. Lent, 7 Abb. 225.) The motion should be decided upon the affidavits if practicable. {Steele V. Palmer, 7 Ahh. 181.) But if the affidavits are not suf- fieiently definite and certain a reference should be ordered to de- termine 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. See Mutual Life Ins. Co. V. O'Donnell, 146 N. Y. 275.) Such a reference is merely to inform the conscience of the court, and the findings of the referee do not conclude it. The court can adopt and act upon the findings, or can disregard them and draw its own conclusions from the evidence. {Marshall v. Meech, 5 1 N. Y. 140 ; contra. Brown v. Marigold, 50 How. 248.) 654 Trial Practice. The order. On non-enumerated motions but one counsel on each side can be heard, and not more than half an hour each, unless the court shall otherwise order. (Rule 47.) SECTION IX. The Order. General requisites as to form, etc. — A direction of a court ol 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 case, must be in writing. (Code of Civ. Pro., § 767.) 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 v. 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. Meiche, 16 Week. Dig. 561.) An order made out of court by a judge should be entitled in the cause, dated, and signed by the judgS 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. {Lachenmeyer 'v.Lachen- meyer, 26 Hun, 542.) Although a motion is noticed to be heard at a Special Term held at the chambers of the justice if the motion is in fact made at a Special Term at the time and place appointed, and the order is entitled as made at such Special Term it will be valid. (^Bates V. United Life Ins. Assn., 68 Hun, 144.) 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. Broschdl, 80 K. Y. 544 ; 19 Hun, 116 ; Mojarrieta v. Saens, 80 N. Y. 553; Atlantic, etc., Tel. Co. v. Baltimore, etc., R. R. Co., 14 Jones ife Sp. 377. See BM v. Vernooy, 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 Order. 655 Title, recitals and contents. The mere entitling anor''''er as at Special Terra, whicli by law may be made by a judge ont of court, or the making of it by the jtidge 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 by him as a judge that he makes it at the Special Term or entitles it as made at the Special Term. [Matter of Enickerhocher Bank, 19 Barb. 602; Wickcs 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 cliambers, it will be deemed as granted out of court. ( Wood v. Kimball, 9 How. 419 ; IS 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-enumerated motion is to be entered it must spe- cify all the papers used or read on the motion, on either side (Eule 3.) It is not sufficient to state generally that the motion was made upon all the papers and proceedings in the action. {Hohart V. Molart, 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. 54, 57 ; Scudder 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 wliether 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. Coe, 7 Eob. 477.) An order bearing date as of a period not yet arrived is absolutely void upon its face ; certainly so until the jJrrival of the day on which it pur- ports to be dated. (Id.) The order must make the proper provisions as to costs. See />ost.) And although the notice of motion states the specific 656 Trial Practice. Conditions or terms. relief demanded and also contains a prayer for general relief, the relief granted under the general prayer should not be entirely distinct from that specifically demanded. {^Boston Nat. Bank v. Armour, 50 Hun, 176.) But on a motion to set aside the report of a referee the court may, under the prayer for further relief, order the case sent to the referee for a further report. {Schultheis V. Mclnerny, 37 St. Rep. 537.) 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, 4Sandf. 709; Lord v. Vandenburgh, 15 How, 363, 365), and where a favor is granted to a party on condition he must at his peril take notice of the condition and comply with it, if he desires to avail himself of the benefits of the order. (Willink v. Renwick, 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. (Weichsel 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 per- formance of certain imposed conditions, there is no authority in the court to compel the performance of the conditions, if the party elect not to take the favor or right which the court granted conditioned on such performance. (Neill v. IVuest, 17 Abb. 319, note.) One who asks for an order which the court may, in its discre- tion, grant or refuse must, if he obtains it, submit to the condi. tions which the court imposes. He need not accept it, however, and if he does not, he stands as if the favor was denied. {MattUr of Waverly Water-Works Co., 85 N.Y. 478; Brownellv. Ruckman, id. 648; Sonneborn v. Libbey, 102 N. Y. 539.) The only way in which a party can be relieved from the terms imposed by the court at Special Term as a condition of granting a favor is by appeal to the appellate division or by application to the justice who held the court at which the order was made. There can be no appeal from one Special Term to another. (^Fin- elite v. Finelite, 41 St. Rep. 158.) The payment of costs is the condition usually imposed, but stipulations to accept short notice, not to sue, etc., are frequently required. A void writ or process furnishes no justification to a The Order. 657 Entry and filing papers. party acting under it, and the court upon vacating such process, upon the application 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 cannot be taken away by the court. {Matter of Bradner , 87 N. Y. 171 ; Tompkins v. Smith, i Civ. Pro. R. 398 ; 62 How. 499; Chapin v. Foster, loi N. Y. i.) 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. T. 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. Vernon, 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 . {Salin v. Johnson, 7 Cow. 421 ; Pugsley V. Van Allen, 8 Johns. 351 ; Hoffman v. TreadweU, 5 Paige, 82.) But an order to amend and pay costs does not make payment a con- dition precedent . {Sturtevant v. Fairman, 4 Sandf. 674.) la 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 amoui^t. ( Van Schaick v. Wirme, 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 T. Berge, 4 Daly, 477.) Entry, and filing papers.— An order granted tjpon an &tt 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. Relyea, 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 42 658 Trial Practice. Entry and filing. with the clerk. (Code of Civ, Pro., §§ 1342, 1347, 1348, 130.:], 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. Co. V. Godet, 2 Jones & Sp. 359; Smith v. Bodd, 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. {Qallt v. Finch, 24 How. 193.) In an action brought in the Supreme Court the derk with which the order is to be entered is the clerk of the county in which the action is triable. (Code of Civ, Pro., § 3343, subd. 4. See Browner V. Loomis, 17 Hun, 439, 441.) When the affidavits 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 such 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 bo filed, and the proper order entered in the proper county within ten days there- after, or the order may be set aside as irregular with costs. (Rule 3.) it ib 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 entered, and to indorse upon each paper used or read the word " read" over his initials. 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. (Rule 3.) A recital in the order of certain papers used upon a motion together with the words " and on all the papers and proceedings herein" is too indefinite and uncertain. The papers used upon a motion should be so definitely specified that they can be easily identified and that there may be no confusion or dispute in reference thereto. {Faxon v. Mason, 87 Hun, 139.) The Order. 659 Entry and filing. Where an appeal has been taken from an order and it is then discovered that an important affidavit read upon the motion was neither recited in the order, nor filed, nor made a part of the record, and a sufficient excuse is shown for the omission, an appli- cation to correct the record may be made at Special Term and will be granted unconditionally. {Thousand Island Park Ass' n v. Gridley, 25 App. Div. 499.) 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 Surro- gates' Courts, in the office of the surrogate ; in other courts of record, in the office 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 or business. This rule shall apply to parties appearing in person. (Rule 2.) In case of orders made by the 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. (Scudder v. Snow, 29 How. 96; Savage v. Relyea, 3 id. 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 drawn up and entered. {Matter of Rhinebeck & Conn. R. R. Co , 8 Hun, 34 ; 6y N. Y. 242 ; Feet v. Cowenhoven, 14 Abb. 56.) A party cannot, by omitting to enter an order, obtain a right to renew a motion. {Hall v. Emmons, 2 Sweeny. 396.) It is the clerk's duty to enter an order, without any special directions to that effect, and it maybe entered nunc pro tunc when accidentally omitted and when necessary to sustain proceedings had in good faith and otherwise unexceptionable. {Feople v. Central City Bank, 53 Barb. 412, 419; 35 How. 428 ; Matter of 660 Trial Practice. Service. Rhinebeck & Conn. R. R. Co., 8 Hun, 34.) A party cannot be prejudiced, or his rights under an order impaired, by the omission of the clerk to enter it. (Vicas v. Pa£-e, 106 N. Y. 439.) And an order may be entered nunc pro tunc to protect a party from the delay of a court in rendering its decision. {Clapp V. Graves, 9 Abb. 20; 2 Hilt. 317; Crawford v. Wilson, 4 Barb. 504, 524; Wilson v. Henderson, 15 How. 90.) For the purpose of an appeal the decision of the court must take the form of an order, and be duly entered, but in an equity case a decision in favor of a party expressed in the form of a written opinion may fix the right of the party although death intervenes between the making of the decision and the actual making and entry of a formal order based thereon. {Robinson v. Covers, 138 N. Y. 425.) 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 sev- eral applications, or several directions in a cause, given at the same time, should be embraced in one order. If anything is omitted the 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 office of the clerk of the county in which the judgment was entered, within ten days, or the order may be set aside as irregu- lar under the third general rule. {Curtis v. Greene, 28 Hun, 294.) 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. Until 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 order of reference, made upon a motion, duly noticed. {Moffatt V. Judd, I How. 193.) Where an ex parte order, which is not entered, is served, the Renewal of Motions. 661 Second application for an order. afiSdavit upon which it was granted, or a copy thereof, must be served with the order, or it may be disregarded. {Savage v. Rel- yea, 3 How. 276; Code of Civ. Pro., §§ 562, 610, 782.) To limit the time within which to appeal from an order, a copy of the or- der and a written notice of the entry thereof must be served. (Code of Civ. Pro., § 135 1.) 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. Siurtivant, 9 N. Y. 263; Clark v. Bhiinger, 75 id. 344; Mayor of N. Y. V. New York & Staten Island Ferry Co., 64 id. 624.) If the order is not void the party is bound to obey it until vacated. {Matter of Parrish, 28 App. Div. 22.) 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 concerned, if he had knowledge of it, information of its contents, and was present in court when it was granted, al- though when he was served with the order the original was not exhibited to him. {Livingston v. Swift, 23 How. i.) SECTION X. 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 con. ditionally, 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 application, by any judge of the court, upon proof by affidavit of the facts. (Code of Civ. Pro., § ^^().^ A person making an application forbidden as above, with knowledge of the previous application, shall be punished by 663 Trial Practice. When application is made ex parte. the court for contempt. (Id., § 778.) Whenever application is made ex parte, on af&davit to a judge or court for an order, the afifidavit must state whether 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 failure to comply with the above rule, any order made on such application may be revoked or set aside. This rule applies to proceedings supplementary to execution, and to every application for an order or judgment made in any action or special proceeding. (Rule 25.) But a failure to comply with this rule is simply an irregularity which authorizes, but does not compel the court to refuse the order or to revoke or set it aside if granted. (Bean v. Tonnelle, 24 Hun 353: Skinner v. Steele, 88 Hun, 307; Pratt v. Bray, 10 Misc. 445.) Where a motion upon notice has been denied it cannot be re- newed except before the judge who presided on the hearing of the motion unless there is express statutory authority for its be- ing renewed elsewhere. {People v. National Trust Co., 31 Hun, 20, 25. See Hall V.Emmons, 2 Sweeny. 396; 8 Abb. [N. S.] 451; 39 How. 187; Belmont V. Erie Ry. Co., 52 Barb. 637.) The power of a justice at Special Term to pass upon orders made by an- other justice at Special Term v/ill be considered hereafter. Where a motion, upon notice, is denied upon the merits with- out leave to renew, a party desiring to renew the motion should first obtain the leave of the court. {Belmont v. Erie Ry Co.^ 52 Barb. 637; Bank of Havana v. Moore, 5 Hun, 624; Hall v. Emmons, 2 Sweeny, 396; 8 Abb. [N. S.] 451; 39 How. 187; Wentworth v. Went worth, 51 id. 289; First Nat. Bank v. Hamil- ton. 50 id. 116; Dunn v.Meserole, 5 Daly, 434; Dollfus v. Frosch, 5 Hill, 493; Mills V. Thursby, 11 How. 114; Schultzev.Rodewald, I Abb. N. C. 365; Easton v. Pickersgill, 75 N. Y. 599; Seaman v. Mc Reynolds, ^^2 Supr. Ct. 543; Talcott w. Burnstine, 11 St. Rep. 552; Bodev. Maiberger, 11 Civ. Pro. R. 53.) The fact that the second motion is made upon additional proof does not affect the application of the rule (Wor man v. Frankish, 32 St. Rep. 235; Williams v. Huber, $ Misc. 488), nor does the fact that che two motions by which the same relief is sought are based upon dif- ferent grounds. {Sheehan v. Carvalho, 12 App. Div. 430; Lowell v. Martin, 21 How. 238; Pattison v. Bacon, 12 Abb, 142; Klun^p Renewal of Motions. 603 A second motion for the same relief cannot be entertained. V. Gardner, 44 Hun, 515.) So a second motion for the same relief cannot be entertained without leave while the prior mo- tion is pending and undetermined although the moving party in his second notice of motion gives notice that he withdraws his prior motion. {^Hoover v. Rochester Printing Co., 2 App. Div. 11.) But the rule requiring 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 de- cision on a motion, upon additional facts. The court may, if it sees fit, insist upon that preliminary, but it has the power to dis- pense with it and entertain and dispose of the whole matter in one order. (Riggs v. Pursell, 74 N. Y. 370. And see Harris v. Brown, 93 id. 390.) Notice may be given stating that an appli- cation for leave to renew will be made, and that the motion will be renewed in case such leave is granted. (Fowler v. Hurber, 7 Rob. 52.) A motion maybe renewed, without leave of the court, upon a new state of facts arising after the denial of the motion. (^Belmont v. Erie R'y Co., 52 Barb. 637; Erie R'y Co. v. Ramsey 57 id. 449; Butts V. Burnett, 6 Abb. [N. S.J 302; Fox v. Fox, 24 How. 385; Noonan v. New York, L. E. & W. R. Co., 68 Hun, 378; Smith v. Zalinski, 94 N. Y. 519, 524; Goddard v. Stiles, 99 N. Y. 640.) But such new matter must be some, lumg which has happened or for the lii'st time caiue lu 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. Ba^on, 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. {Iia,y v. Connor, 3 Edw. 478 ; Schultze v. Rodewald, 1 Abb. N. 0. 365 ; Socman 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. Mtmroe, 33 Barb. 650 ; 12 Abb. 357; BelTUont v. Erie R\j Co., 52 Barb. 637; Wentworth v. Went- worth, 51 How. 289.) But such power is rarely exercised, (bee Riggs v. Pursell, 74 N". Y. 370, 379.) '«»► The denial of a motion upon the default of the moving party ia no bar to its renewal if the default be snfliviently excused. {Bow- man v. Sheldon, 5 Sandf. 657.) 664 Trial Practice. ReviewiDg or vacating; orders. SECTION XI. Revikwing OB Vacating 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 tlie 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. C. 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. Common 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 malce an order has power to vacate or modify it. (Code of Civ. Pro., § 772 ; Bigelow v. Jleaton, 2 How. 207 ; Moore v. Merritt, 9 Wend. 482 ; Fullerton- IV. Gaylord, 7 Eob. 551 ; Herzig v. Metzger, 62 How. 355.) The court has power to vacate or modify an order made by a judge out of court. {Woodruff V. Fisher, ly 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. Y. 404, 410; Pitt V. Davison, 37 Barb. 97.) So when a party obtains an undue advantage by using an order of the court for a purpose contrary to its spirit and intention and which could and would have been guarded against had the unlawful purpose been disclosed when the order was made, the court has power to de- prive the party of the advantage resulting from an abuse of the order by modifying or amending it or granting a new order to cor- rect the abuse. {DeLancey v.Piepgras, 141 N. Y. 88.) But a judge has no power to review an order made by another judge. {Hart v. Butterfield, 3 Hill, 455 ; Cayuga Co. Bank v. Warfidd, 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 revei-se or vacate the order of another justice at Special Term. {Fisher v. Hepburn, 48 N. Y. 41^ 53 ; Kamp v. Reviewing or Vacating Orders. 665 Where a. motion has been heard and improperly decided. Kamp, 59 id. 212, 217; People v. National. Trust Co., 31 Hun, 20 ; 4 Civ. Pro. R. 203 ; Hallgarten v. Eclcert, 1 Hun, 117 ; WUson V. Barney, 5 id. 25T; Dinhelspiel v. Levy, 12 id, 130; People v. Goojper, 57 How. 463, 466 ; Mayer v. Apfel, 2 Sweeny, 729 ; Mat- ter of Livingston, 34 N. T. 555, 576 ; contra, Selden v. ChristopherSy 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 ordere made by another is that provided in section 772, and those relating to provisional remedies. With these exceptions, no authorit}^ has been, expressly or by clear implication, given to one justice presiding in court to vacate or re- consider the orders made b}'' 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 de^ eided in a court held by another. {People v. National Trust Co., 31 Hun, 20 ; 4 Civ. Pro. E. 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. ; T/wmpson v . Erie R'y Co., 9 Abb. [K. S.J 233.) Where a motion has been heard and improperly decided, the defeated party is not coniined 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- a^'n, 53 "N". Y. 40-1:, 410 ; W/iite v. Uunroe, 33 Barb. 561 ; Pitt T. Davidson, 37 id. 97; Smithw. Spaulding, 30 How. 339; Belmont v. Erie Ry Co., 52 Barb. 637; Matter of Crane, 81 Hun, 96.) And the rule is the same whether it is the party obtaining the original order or the adverse party who asks to open the order. {Belmont V.Erie Ry 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 un- done. (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.) '666 Trial Practice. Costs. Where an order has been denied, a motion for a reargument should be made at a Special Term for the hearing of non-enum- erated motions, and if the judge who originally heard the motion does not preside, the motion should not be denied but should be referred to him or deferred until he holds the Special Term. {Averell v. Barber, 44 St. Rep. 542.) If a motion for a new trial has been heard and denied at the Trial Term, a motion to vacate the order of denial and for a rehearing cannot be made at Special Term or Chambers, and the party must seek his remedy by ap- peal. {Mellen v. Mellen, 27 Abb. N. C. 99.) 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 XII. 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 judge. (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 ; bat the awarding of costs is confined to such motions as are litigated, or such as require the preparatioxi and service of pa- pers and notice upon the adverse party. {Bcnone y . Anthony, 13 How. 30L But see Langhein 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. {N'orthrop v. Van Duzer, 5 How. 134.) But upon a litigated mo- tion costs may be awarded, although not asked for in the notice. {Bania v. Marcellus, 2 Barb. 373; Jones v. Cook, 11 Hun, 230.) 11 the moving party asks for more relief than he is entitled to, no costs are awarded, although the motion is partially granted. ( Whip- ple V. Williams, 4 How. 28; Steam Navigation Co. Y.Weed,% id. 49; Penfieldr. White, id. 87; CorUnv. George, 2 Khh. 4,%h; MoKenzie v Hachstaff, 2 E. D. Smith, 75 ; Wentworth v. Went- worth, 51 How. 289, 294. But see Dennison v. Dennison, 9 id. 246, 248.) 15 the moving p:irty asks for costs, that is sufficient rea- Costs. 667 Discretionary. -fion for allowing costs to the opposing party on denial ot the motion, although no costs wonld otherwise have been awarded . ( Weeks v. Southwich, 12 How. 170 ; BattershallY. Davis, 23 id. 383.) And where the motion was granted, the moving party has been charged with costs for compelling the adverse party to attend to prevent costs being taken against him by default. {Phelps v. Wasson, 2 How. 12G.) 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. {Rill V. Smith, 2 How. 242.) And a notice of motion cannot be with- drawn or countermanded without payment of costs. (See ante, p. 636.) 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 mad.o in one. {Post V. Jenkins, 2 How. 33 ; Cortland Co. Mut. Ins. Co. v. Lathrop, id. 146 ; MoCoun v. New York Cent. & H. B. E. R. Co., 50 N. T. 176, 181 ; Sornfager y. 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. {Tinkey 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 ; Northrop v. Van Dusen, 5 id. 134 ; Purchase v. Jackson, 14 id. 230 ; Ely v. Helton, 15 N. T. 595, 600; Bolles v. Puf, 55 Barb. 580 ; 7 Abb. [IST. S.] 385 ; 38 How. 504 ; Cooper v. 668 Trial Practice. Must be awarded. Jolly, 3 Civ. Pro. li. 9 ; Matter of Ketvhum, 60 How. 154, 156; Miller v. Sheldon, 15 Hun, 220.) And where the decisions upon the point in question are conflicting costs are not awarded. (See Tindal v. Jones, 11 Abb. 258 ; 19 How. 469 ; Oeraud v. Stagg, 10 id. 369 ; 4 E. D. Smith, 27 ; Silliman v. Eddy, 8 How. l22.) Ordinarily no costs are awarded on a motion for an additional allow- ance of costs. {Schwartz v. Pouglikeepsie Mut. Fire Ins. Co., 10 How. 93; Magnin v. Dinsmore, 47 id. 11, 12; LooJcman v. Ellis, 58 id. 100, 102.) But it is not an erroneous exercise of dis- cretion to award costs on such a motion. {Dickson v . McElwain, 1 How. 138. And see Bright v. Milwaukee, etc., It. H. Co., 1 Abb. N. C. 14, 18.) "Where the defendant moved for the dis- diarge of an order of arrest, and it appeared that he was not gniltj of bad faith, no costs were allowed although the motion was denied. {Sehadle 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, aad 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, cost& 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 reftree'a fees. (Code of Civ. Pro., § 3251, subd. 3.) Costs. 669 How collected. Where either a discovery or iospectiou of books, etc., ia directed, and a referee is appointed by the order to direct and saperintend it, a fixed sum, not exceeding $20, may be added to the eo^ of the motion for the fees of the referee. (Id., § 807.) How collected. — Where costs of a motion, or any other snm of money, directed by an order to be paid, are not paid witiiin tiie-timc fixed for that purpose by the order, or if no time is 60 fixed, within ten days after service of a copy of the order, an exeea^on gainst 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 mse. of money is made payable by said order, or in case permission of the court shall be first obtained by any party or person haviag au interest in compelhng payment thereof, w^hieh execution ^taH be iu the same form, as nearly as may be, as an execution upon a judgmems, omitting the recitals and directions relating to real property ; anc 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 eveot 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 eannot be so construed as to relieve a party or person from ptmish- ment as for contempt of court for disobedience to an order in any case when the remedy of enforcement by such proceedings now exist. (Code of Civ. Pro., § 779.) APPENDIX OF FORiVlS. AFFIDAVITS. No. I. Affidavit of merits. See ante, p. S9. SUPREME COURT. John Doe 1 agst. > ( Title of the cause.) Richard Roe. I State of New York, ) ,„ . > SS. (Fenue.) County of Montgomery, ) 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. C, 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. RICHARD ROE. Sworn to this day of 1S99, ) ,. . before me f (Signature and official title.) No, 2. Affidavit of service of subpoena. See ante, p. 141 ; Code of Civ. Pro., § 852. (Title of the cause.) (Venue.) C. M., being duly sworn, says, that the witnesses hereinafter named respectively resided at the places where they were subpoe- naed by deoonent, as hereafter stated; that deponent at the time& 671 €72 Appendix of Forms. and places below set forth, served the annexed subpoena person- ally upon the witnesses below named, by exhibiting the original subpcena to each of such witnesses and delivering to each of them a subpcena ticket, containing the substance thereof, a copy of which is hereto annexed, and paying to each of them the sum set opposite his or her name, viz.: On at , N. Y., on the day of , i8 , amount paid, $ On at , N. Y., on the day of , i8 , 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 subpoena, and return therefrom, and one day's attendance as such witnesses. (jfurai.) (JSgmttiire.) No. 3. Affidavit of service of ex parte order. See ante, p. 660. {Title of the cause.) (Venue.) C. M., being duly sworn, says, that at the times and places here- inafter stated he served the annexed order personally upon R. R- and S. R., 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 R. R., at , N. Y., on the Hay of ,189 . On S. R., at , N, Y., on the day of , 189 . 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. 635 ; Code of Civ. Pro., § 796. (Title of the cause.) ( Venue.) C. M., being duly sworn, says, that he is over (twenty-one) years of age ; that on the day of , 1899, at the city of , Appendix of Forms. 673 in the state of New York, he served the annexed {specify the paper or papers served) upon F. B., the (defendant) therein named, per- sonally, by delivering to and leaving with him a true copy thereof. {Jurat.) {Signaturt.) No. 5. Afifidavit of service by mail. See ante, p. 635 ; Code of Civ. Pro., § 797. SUPREME COURT. Abraham Cohen 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 (plaintiff); that said attorney resides at (Buffalo), N. Y. Deponent further says, he did, on the (27th) day of (August), 18 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 depos- iting the same, properly inclosed in a post-paid wrapper, in the post-office at (Buffalo) aforesaid, before (three) o'clock P. M., directed to said James Greenfield, at No. 184 Prospect street, Syracuse, N. Y., that being the address within the State desig- nated by him for that purpose upon the preceding papers in this action, between which places there then was and now is a regular communication by mail. JOHN BROWN. Sworn and subscribed before me, [ the 28th day of August, 18 ) Henry Earl, Notary Public, Erie County, N. Y. 43 674 Appendix of Forms. No. 6. Affidavit of service in office, no person present. See ante, p. 635 ; Code of Civ. Pro., § 797. {Title of the cause.) ( Venue. ) C. M., being duly sworn, says, that on the day of 1899, (between the hours of ten and eleven in the forenoon), he served the (notice) hereto annexed upon J. C, the attorney for the above- named (defendant) W. F., by leaving a true copy of the same (pinned to the wall) in a conspicuous place in the law office of said attorney, at No. , street in the city of , N. Y.; that at the time of said service said attorney was absent from his office, and there was no clerk therein, or person in charge thereof. (Jurat.) (^Signature.) No. 7. Affidavit of service of summons in divorce. See ante, p. 124; Code of Civ. Pro., § 1774. SUPREME COURT. 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 served the annexed summons on the above-named de- fendant personally by delivering 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 the defendant therein {state what knowledge the affiant had of the person served being the defendant and proper person to be served, and how he acquired such knowledge). That the summons so served and the copy thereof so delivered contained the following words, viz.: " Action to annul a mar- riage " {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.) Appendix op Forms. 675 No. 8. Affidavit on motion to remove cause for the purpose of consolidation. See ante, p. 8o; Code of Civ. Pro., § 818. SUPREME COURT. Amos Smith agst. Harvey Jones COUNTY COURT OF THE COUNTYOF MONTGOMERY. Amos Smith agst. Harvey Jones. State of New York, ) County of Montgomery, j Harvey Jones, being duly sworn, say^, that he is the defendant in each of the above entitled actions ; that on or about the 6th day of Febrnary, 1899, one Amos Smith, the plaintiff above- named, commenced an action in the Supreme Court of this State against deponent to recover the sum of $904.68 ; that the place of trial of said action designated in the plaintiff's complaint therein is the county of Montgomery; that issue was joined therein by the service of a verified answer to the plaintiff's com- plaint on or about the 24th day of February, 1899; that on or about the 8th day of March, 1899, the said Amos Smith com- menced another action against deponent in the County Court of the county of Montgomery to recover the sum of $84.93 ! that issue was joined in said last mentioned action on the 26th day of March, 1899, by the service of a verified answer to the plaintiff's complaint therein ; that both of said actions are now pending ; that the parties to both of said actions are the same ; that the cause of action alleged in the complaint in action in the Supreme Court and the cause of action alleged in the complaint in the action in the County Court are substan- tially the same, each of said causes of action being for alleged successive breaches of the same contract, viz.: {state nature of the causes of action); that the defense in each of said actions is the same, viz.: (a general denial of each and every allegation in said complaint contained); that deponent has fully 676 Appendix of Forms. and fairly stated his case in each of said actions to , de- fendant'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 plantifif to stipulate that said action in the County Court be removed to the Supreme Court, and that both said actions be consolidated in one, but the plain- tiff has declined to enter into such stipulation. HARVEY JONES. Subscribed and sworn to before me, ) this day of , 1899, ) Charles Dewitt, Notary Public. No. 9. Affidavit to obtain an order removing a cause from the County Court to the Supreme Court See ante, p. "JT, 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 ac- tion; 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 depo- nent'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 defendant 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-defendants, D. P., T. S. and M. S., as tenants in common, as more fully appears by said answer ; that the issue raised by said answer as to deponent's title and interest in the lands described in the complaint will be tiied and determined in this action. III. That on or about the loth day of April, 1892, W. K., Appendix of Forms. 677 now the county judge of said county, recovered a judgment in the Supreme Court against said H. P. for the sum of $8,500, and before the commencement 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, whereupon said judgment became and still is a valid lien upon any undivided 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 judgment, cind as such is interested in the event of this action and disqualified from sit- ting as county judge upon the trial thereof. IV. That V. S., the special county judge of said county, is a brother of the plaintiff F. S., and by reason of such relationship is incapable of acting in this action. (/«''«'•) (Signature.) No. ID. Affidavit on motion to consolidate actions. See ante, p. 102 ; Code of Civ. Pro., § 817. SUPREME COURT. ■ Action No. t. James Bradner agst. Henry Barr and John Grant. SUPREME COURT. James Bradner I agst. \ Action No. 2. Henry Barr and John Grant. 1 > ss: State of New York, County of Henry Barr, being duly sworn, says, that he is one of the defen- dants in each of the above-entitled actions, and that all the per- sons constituting 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 678 Appendix of Forms. sold to defendants by the plaintiff, with a contract of warranty as to quality; that the action designated No. i was commenced on the day of , i8 , and an issue of fact was joined therein on the day of , i8 ; that the action desig- nated No. 2 was commenced on the day of , i8 , and an issue of fact was joined therein on the day of , 1 8 ; that the defendants by their answers have interposed the same defense or counter-claim to both actions, viz : a breach of the contract of warranty before mentioned ; that deponent has fully and fairly stated his case in both actions to , defen- dant's counsel, a counselor of this court, who resides at , N.Y., and that deponent is advised by said counsel, after such state- ment 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. HENRY BARR. Subscribed and sworn to before me, ] this day of , i8 i Charles Dewitt, Notary Public. No. II. Affidavit to change venue for convenience of witnesses. See ante, p. 94; Code of Civ. Pro., § 987. ( Title of the cause.) ( Venue. ) R. R., being duly sworn, says, that he is the defendant in the above entitled action, and that he resides in the city of , county of , and state of New York. That this action is brought to (state the nature of the action); that the county desig- nated in the plaintiff's complaint as the place of trial of this action is the county of (Erie); that an issue of fact was joined herein on the day of i8 , by the service of a verified answer to said complaint; that said answer puts in issue {state nature of the defense, showing real matters in controversy); that no part of the transactions alleged in said complaint as constituting the Appendix of Forms. 679 plaintiff's cause of action took place in the county of (Erie), but that {show, if advisable, where the alleged catise of action or defense, or both, arose). That deponent has fully and fairly stated the case in this action and disclosed the facts which he expects to prove therein by each and every of the witnesses hereinafter named to who resides at , in the county of , state of New York, who is a counselor of this court and deponent's counsel in this action, and that {state the names and occupation of the witnesses, and their re- spective residences, giving street and number if they reside in a city^ are each and all of them 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, and as deponent verily believes ; and further that without the benefit of the testimony of each and every of them deponent cannot safely proceed to the trial of this action as he is advised by his said counsel after such statement made, and as deponent believes. That deponent can prove the following facts by said witnesses, viz.: by the said John Doe, that {state concisely the facts which can be proven by this witness); bv the said Richard Roe, that {state facts as above); by the said (etc). That deponent also expects to prove the following further facts by said witnesses, viz.: by the said John Doe, that {state substance of the testimony expected, and the grounds for expecting that the witness will so testify); by the said Richard Roe, that (etc). And deponent further says that the convenience of all of said witnesses, and the ends of justice, will be promoted by the change of the place of the trial of this action from the county of (Erie) to the county of (Oneida). {.yurat.) (Signature.) No. 12. Affidavit to change venue to proper county. See ante, p. 88; Code of Civ. Pro., §§ 985, 987. {Tiile of the cause,) ( Ventu.) A. B., being duly sworn, says : I. That he is the managing clerk in the office of , the attorneys for the defendant in the above entitled action. 680 Appendix of Forms. II. That the said action was brought (state nature of the action.) III. That the county designated in the plaintiff's complaint as the place of trial of this action is the county of ; that the proper place of trial is the county of IV. That on the day of i8 , a written demand that this action be tried in the proper county, namely, in the county of , a copy of which is hereto annexed, was person- ally served upon the plaintiff's attorney, with (or before the service of) defendant's answer herein. V. That more that five days have elapsed since the service of said demand and the plaintiff's attorney has not served his written consent to the change of the place of trial as proposed by the defendant. (Jurat.) (Signature.) No. 13. Afifidavit to change venue to obtain impartial trial. See ante, p. 93 ; 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; that the answer, among other things, sets up a justi- fication. 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 continued for many days, and was attended by a crowd of wit- nesses and spectators attracted by curiosity and interest, and resulted in a verdict of homicide; that the plaintiff was committed Appendix of Forms. 681 to custody from which he was released by habeas corpus in the month of May last. V. That at the sitting of the Supreme Court 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 thit 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 defendant in this suit caused to be printed and circulated a pamphlet containing 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 assembling of the 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 influence on the minds of the jury, and charged the said C. H. to give them away if they could not otherwise 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 hundred were thus distributed in the place. VII. That in the county of Lewis and the adjoining counties the circumstances of this case have been freely discussed in the public papers, and opinions expressed on all sides, both in con- demnation and exculpation of the plaintiff in respect to the charge made against him. VIII. instate any other facts showing that an impartial trial can- not be 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 impartial trial of this case in the county of Lewis. (Jurat.) (Signature of deponent.) ^82 Appendix of Forms. No. 14. Affidavit to oppose change of venue. See ante, p. 97 ; 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; that he resides in the of , 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.) 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. E., Esq., who resides at , in the county of , who is a counselor of this court and plaintiff's counsel in this action, IV. That (state the names of 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 deponent can prove or expects to prove the follow- ing facts by said witnesses, viz.: By the said A. B., that {state the facts as in form No. 11.) VI. 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.) (Jurat.) (Signature.^ Appendix of Forms. 683 No. 15. Affidavit on motion for stay of proceedings. See ante, p. 85. COUNTY COURT— County 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 , 18 , 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 , 18 , 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 , 18 . IL And deponent , further says that on the day of , 18 , he served upon the plaintiff's attorney copy affidavits and notice of a motion to be made at a Special Term of the Supreme Court, held at , on the day of , next, for an order removing this action from the County Court of the county of Fulton to the Supreme Court, and also changing the place of trial of said action to the county of Montgomery; 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 de- ponent was unable to give the statutory notice and bring the motion to a hearing at a term of such court held before the day ior 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 hear- ing and determination 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 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. ) 684 Appendix of Forms. IV. That an affidavit of merits was, on the day of y i8 , duly filed with the clerk of the county of Fulton, and a copy thereof was on that day served upon the plaintiff's attorney, (Jurat.) (Signature.) No. i6. Affidavit to obtain examination of adverse party before trial. See ante, p. 146; 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. F., 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) a.t {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 indorsement 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 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 of the action);. and that judgment demanded in the plaintiff's complaint {state the substance of the judgment demanded). V. That the defendants, by their answer, interpose as a de- fense to said action [state the nature of the defense). Appendix of Forms. 68^ VI. That the testimony of the defendant G. H. is material and ■necessary for the plaintiffs in 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 G. H. before trial {state facts and circum- stances which show that the examination is material and necessary and ivhy it is necessary to take the testimony before the trial. VII. That {state any fact affecting the time of serving the order if the case rt quires any special clause in the order as to sefvice^ VIII. That no previous application has been made by the plaintiff to any court or judge for an order directing the examina- tion of the defendant in this action (or if a prior application has been viade, 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.) • (Signatttrt^ No. 17. Affidavit of authority to ofTer judgment See ante, p. 115; Code of Civ. Pro., § 740. < Title of tht 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 authorized by the defendant {or plaintiff) to make the offer of judgment hereto annexed, in behalf of such defendant (or plaintiff) . (Jurat.) (Signature of attorn^^ No. 18. Affidavit of acceptance of offer of judgment. See ante, p. 115; Code of Civ. Pro., §§738, 739. {Title of the caused { Venue.) A. B., being duly sworn, says, that he is the attorney for the plaintiff in the above-entitled action ; that on the day of ,18 , and before the trial of this action, the defendant above named served upon deponent an offer to allow judgment 680 Appendix of Forms. to be taken against him for the sum of (SS3o), with costs; that on the day of , i8 , deponent served upon the at- torney for the defendant a written notice that the plaintiff accepted such offer of judgment, a copy of which notice is hereto annexed. {jfurai.) (Sigruitare,) No. 19. Affidavit of authority to accept offer of judgment. See ante, p. 116; Code of Civ. Pro., § 740. (Tiile of th^ cause.) ( Venue.) A. B., being duly sworn, says, that he is the attorney for the plaintiff in the above-entitled action, and that he is duly author- ized by the plaintiff to make in his behalf the acceptance sub- scribed by deponent and hereto annexed. {yurai^ (Signature.) No. 20. Affidavit on motion for trial of specific questions of fact by a jury. See ante, p. 119. ( Title of the cause.) ( Venue.) A. B., being duly sworn, says, that he is one of the (defend- ants) 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 defendants (who have appeared and are not in default) on the day of , 18 , and that ten days have not elapsed since the joinder of issue Jis aforesaid, (Jurat. ) ( Signature.) Appendix of Forms. 687 No. 21. Affidavit to obtain an order referring the issues. See ante, p. 127. SUPREME COURT. James Griffiths 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. 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 request. III. That the defendant, by his answer admits the existence of the agency, but denies that services were rendered by deponent to the extent 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 deponent 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 part 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 con- sists of more than items. {Jurat.) (Signaturi.) No. 22. Affidavit to oppose a reference of the issues. See ante, p. 128. {TUlf of the cause.) {Venue.) Y. Z., being duly sworn, says, that he is the defendant in the above-entitled action ; and that said action is brought, as appears- ■688 Appendix of Forms. from plaintiff's complaint, to recover for work done and services rendered by the plaintiff 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 ■deponent admits that the plaintiff performed the work and ren- dered the services mentioned in the complaint, and that such work and services were of the value therein stated ; and also ad- mits 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 their hands and seals whereby deponent covenanted on his part to convey to such persons as plaintiff might designate the right to manufacture and sell in certain localities, a certain device, pat- ented 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 depo- nent a portion of the remainder according to an agreement en- tered into between deponent and said J. D. That the counter-claim set up in deponent's answer consists of a bill of goods sold by deponent to the plaintiff at one time and as one transaction. 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 believes that the trial of the issues joined in this ac- tion 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 liabilities of the parties, and will determine all the issues in this action, except 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 next Trial Term of this court in hours, (jfutat.) {Signature.) Appendix of Forms. 689 ' No. 23. Affidavit to obtain new hearing after trial of specific ques- tions by a referee. See ante, p. 380 ; 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 {state the ob- ject of the action); that the defense interposed {state the nature of the defense); that one of the questions of fact involved in the issue of said action {state the question or questions referred); thatt by an order of this court, made in this action on the day of , 18 , it was referred to , Esq., of , coun- selor at law, to report his findings upon said question of fact ; . that on the day of ,18 , 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 ,18 , 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 , 18 ; that within eight days thereafter deponent's attorney filed • exceptions to the report in the office 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 action, 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 upcm as a ground for a new ^c**^*;?). {Jurat.) {^gnature^ 4<4 690 Appendix of Forms. No. 24. General affidavit to obtain a postponement of a triaL See ante, p. 227. (Title 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 , 18 ; that Issue was joined therein on the day of . 18 ; 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 cannot safely proceed with the trial of this cause. And deponent further says, that on the day of , 18 , he went to , where said E. F. resides, for the pur- pose of subpcenaing 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 E. F. as a witness in this cause at the next Trial Term of this court appointed to be held in this county on the day of , 18 . (Jurat.) {Signature.) Appendix of Forms. 691 No. 25. Special afiBdavit on motion to postpone a trial. See ante, p. 228. (.TltU 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 , 18 ; and that the cause was duly noticed for trial by the plaintiff at this term on the day of , 18 . 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 fiilly and fairly stated the case in this ac- tion to , Esq., who is a counselor of this court, and depo- nent's counsel in this action, who resides at , and that de- ponent 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. F., 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 E. F. the follow- ing facts: {state the substance of the expected testimony). That deponent has used due diligence to procure the attend- ance 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 at- tendance ; that deponent {state what has been done 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 E. F. as a witness herein, at the next Trial Term of this court appointed to be held on the day of , 18 ; 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. ) 693 Appendix of Forms. No. 26. Affidavit to open default on trial See ante, p. 231. {,Titlc of the cause.) (Vmue.) J. C, being duly sworn, says, that he is the attorney for the defendant in the above-entitled action. That this action was brought to recover damages for a personal injury to the plaintiff, alleged to have been sustained through the negligence of th*; defendant. That the defendant interposed a defense of contrib- utory negligence on the part of the plaintiff. That one E. C, who is a resident of the state of Connecticut, and was the only eye-witness of the accident resulting in the injury, and who was an important and necessary witness for the defendant upon the trial of this action, was voluntarily present as a witness for defen- dant at the trial term of this court, held at , on the day of ; but this cause, although noticed for that term, was not tried. That at the next trial term held at , on the day of , the said E. C. was again voluntarily present, and was sworn as a witness for the defendant ; that the trial at that term resulted in a disagreement of the jury. That on said trial the said E. C. testified {state substance of testimony sufficiently to show its materiality). That immediately after such disagreement of the jury at the last mentioned term the said E. C. promised and agreed to attend as a witness for defendant at the trial term appointed to be held at , on the day of , and deponent relied upon said promise and agreement and confidently expected the attendance of said E. C at that term. That on the first day of said last mentioned trial term this cause was set down for trial on , and the defendant apprised the said E. G of that fact by telegraph, and requested his attendance as a witness on that day. That said E. C. then informed deponent by tele- graph that he could not attend the said trial term. That these facts were presented to the trial judge and a motion was mace for a postponement of the trial of this action, which motion was denied. That by reason of the absence of said witness the de- fendant was unable to make any defense to said action and took no part in the proceedings therein at said term subsequent to the denial of his said motion to postpone. That an inquest was taken Appendix of Forms. 693 at said term and judgment was thereafter entered in favor of the plaintiff and against the defendant for the sum of $io,ooo and costs of the action. (yurai.) (Signature.) No. 27. Affidavit for a commission to examine a witness without the state on interrogatories. See ante, p. 164; Code of Civ. Pro., § 887. (Titk of the cause.) ( Venue.) A. B., being duly sworn, says, that he is the defendant in the above entitled action ; that the county designated as the place of trial in the plaintifi's complaint is the county of ; that as appears by said complaint this action is brought to {state the nature of the action and the substance of the relief demanded); that an issue of fact was joined in said action on the day of ,18 , by the service of a verified answer to said com- plaint ; that by said answer {show nature of the defense and real matters in controversy); that the issues of fact herein have not been tried ; that J. K. who is not a resident of or within this state, but who resides at , in the state of , has per- sonal knowledge of the facts involved in the issues in this action, or of some part thereof; that the testimony of the said J. K. is material to deponent in the defense of this action, but that the attendance of said J. K. as a witness for deponent on the trial thereof cannot be compelled by subpoena ; that deponent has fully and fairly stated his 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 substan. tial 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 state- ment made, and verily believes, that the testimony of the said J. K. is material to deponent in the defense of this action. (/«ra/.) \,Signature) 694 Appendix of Forms, No. 28. Affidavit to obtain order requiring production of original record at trial. See ante, p. 142 ; Code of Civ. Pro., § 866. {Title of the cause,') {Venue.) A. B., being duly sworn, says : I. That he is the in tne 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 ,18 , and is still undetermined. 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 ,18 , 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 produc- tion of said record upon the trial of this action (or if a ipnoT appli- cation has been made, state the circumstances and the disposition made thereof, etc.). (Jurat.) (Signature.^ No. 29. Affidavit to obtain order for the production of books, etc, at the trial. See ante, p. 143; Code of Civ. Pro., § 866. ( 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 fact was joined in said action on the day of , 18 , 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 ,18 , at , in the county of III. That it will be necessary for the to read in evidence Appendix of Forms. 696 upon the trial of this action a certain book of account {describing it) for the purpose of showing that {specify the fmrpose for which it is to be 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 application has been made, state the circumstances, the dispositioK made thereof, etc.) {Jurat.) (.Sj^TuAvK) No. 3a Affidavit as to disbursements. See ante, p. 569 ; Code of Gv. Pro., | 3267. (Venue.') D. M., being duly sworn, says, that he is the attorney for the (plaintiff) herein ; that the foregoing disbursements, except wit- ness' fees, have been actually made and incurred on the piart of said (plaintiff) except those hereafter to be incurred, and those deponent believes to be correctly 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. (Jutat.) {Signature.) No. 31. Affidavit as to witness. See ante, p. 570; Code of Qv. Pro., § 3267. ( Venue.) A. B. , being duly sworn, says, he k the (plaintiff) in this action, which was at issue and necessarily upon the calendar for trial at the several Trial Terms 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 J that each of the persons named in Schedule A, hereunto an- nexed, which is made a part hereof, attended the several Trial 696 Appendix of Forms. Terms (or hearings) therein named pursuant to a subpcEna, or upon special request of this (plaintifiF) as a witness for the (plain- tiff) the number of days set opposite their respective names therein ; that the residence of said witnesses respectively, the distance therefrom, according to the usual traveled route, to the' said Trial Term {or Special Term or hearing) and the number of mUes 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. (/urai^ {Signature.) No. 32. Affidavit to obtain preference of cause on calendar. See anU, p. 203; Code of Civ. Pro., § 793. ( Title of the cause.) ( Venue. ) A. B., being duly sworn, says, that he is the (attorney for the) plaintiff in the above-entitled action, which is now pending in this court, is at issue, and has not been noticed for trial. That the defendant is a banking corporation created under th« national banking law of Congress, located and doing business in this State, and issues bank notes to circulate as money. Kjurat.'\ {Sigmtture.) Appendix of Forms. 697 PETITIONS. No. 33. Petition for a writ of habeas corpus ad testificandum. See ante, p. 139; Code of Civ. Pro^ §2012, SUPREME COURT. The People of the State of New York, 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, i.i which John Doe is sole plaintiff, and your peti- tioner is sole defendant ; that an issue of fact has been joined therein and has not been tried ; that the place of trial mentioned in the summons and complaint therein is the county of ; and that said actioa has been noticed for trial by both parties at the Trial Term appointed to be held in said county on the day of , 18 . II. That said action is brought {state 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 defendant 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 mentioned 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 de- fendant herein, for the purpose of bringing the said John Stiles 698 Appendix of Forms. before this court at the Trial Term to be held at , on the day of , i8 , to testify as a witness, on behalf of your petitioner, in the action there and then to be tried. (Daie.) {Signature.) State of New York, ) County of , j ' Richard Roe, 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. {/urat^ {Signature.) No. 34. Petition for a discovery and inspection of papers. See ante, p. 186; 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 execu tor of John Doe, deceased, to recover a balance due to your , petitioner as such executor upon a contract, in writing, entered into between said testator and the defendant herein, whereby said testator cox'enanted 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 according 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 testator refused and neglected to complete said house in a good and workmanlike manner, according to said specifications, and that defendant paid to said testator the full value of the work, labor and material actually expended upon the building in said contract mentioned. Appendix of Forms. 699 IV. That said specifications are not in the possession or under the control of your petitioner, but are in the custody of the de- fendant, who has refused, and still refuses, to permit your peti- tioner 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 per- form; that your petitioner has no copy thereof; that he desires information as to the details of the work which said testator con- tracted 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. Wherefore your petitioner prays that an order may be made requiring 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 infor- mation and belief, and as to those matters he believes it to be true. (Jurat.) (Signature.) STIPULATIONS. No. 35. Stipulation to refer the action. See ante, p. 123; Code of Civ. Pro., § loil. iTUle of the cause.) It is hereby stipulated by the attorneys for the respective par- ties to the above entitled action, that said action and all the issues 700 Appendix of Forms. therein be referred to J. C. counselor-at-law, as sole re ferae to hear and determine the same, and that an order to that effect may be entered by the clerk as of course upon the filing of this stipula- tion.* {Dait.) Signature of atUntieys^ No. 36. Stipulation to refer — ^Limitation to referee named. {As in the foregoing form to the* then add.) But it is under- stood and agreed by and between the parties to this stipulation that the foregoing consent to the reference of the issues of this action is limited to a reference thereof to the referee named herein, and that in case said referee refuses to serve or new trial is granted, no other referee shall be appointed under or by rea. son of this stipulation. (Date.) (Signatare of aiiorneyt.) No. 37. Stipulation to refer — Court to appoint referee. (^TUUofthe cause.) It is hereby stipulated by the attorneys for the respective par- ties to this action, that said action and all the issues therein be referred to such referee as the court shall appoint to hear and determine the same, and that either party may apply for an order of reference under this stipulation without notice to the other and without costs to either party as against the other. (Date.) (Signature of attorneys.) Appendix of FoRMa 701 No. 38. Stipulation to try cause elsewhere than at court-house. See cmU, p, 10 ; 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). (Bate.) KSigTiature of plaintiff's attorney.) {.Signature of defendant's attorney.) I hereby consent that this cause be tried at the place above designated. (Signature of the judge who is to try the cause.) No. 39. Stipulation for an order to take depositions. See ofite, p. 177 ; Code of Civ. Pro., § 908. {Title of the cause.) It is hereby stipulated by the attorneys for the respective par- ties 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 wit- ness who may be produced by either party be taken before Hon. , of the of , in the state of , upon oral qiifstions to be put to the witness when he is produced ; that said depositions be taken within days from the date of said order; I . 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 word, in the deposi- tion 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 objec. tions not so taken shall be deemed waived ; that the depositions, properly certified, be returned by mail to {or such other direc- tions as to the execution and return of the order and deposition as the parties may lawfully agree upon.) {Date.) (Signatures.) 702 Appendix of Forms. No. 40. Stipulation that an open commission issue. See ante, p. 177 ; Code of Civ. Pro., § 908. (Title of the cause.) It is hereby stipulated by the attorneys for the respective par- ties 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 produced by either party, on or before the day of ,18 , 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 directions 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 pro- pounded to the witness and his answer or answers thereto ; and that any and all objections to said questions and answers shall be specifically taken upon the examination and noted in the deposi- tion, or shall be deemed waived ; that said commission and depo- sitions be returned by mail to , or suck other special direc- tion as to the execution, return or custody of the cotmnission and depositions as the parties desire^ i^Date.) [Signaiures.) No. 41. Stipulation that the deposition of a witness be taken within the state. See ante, p. 160; Code of Civ. Pro., § 879. [Title of tie cause.) It is hereby stipulated by the attorneys for the respective par- ties to this action, that the deposition of be taken orally {or upon the interrogatories hereto annexed) before Hon, , Appendix of Forms. 703- county judge of county, {or before , of , coun. selor at law, as referee,) at the office of said judge {or referee) in the of , on the day of , i8 , at o'clock in the noon. (Au!e.) {Signatures.) No. 42. Stipulation that commission issue to examine a witness without the state upon interrogatories. See ante, p. 177 ; Code of Civ. Pro., §908. ( Tiiie 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-inter- rogatories 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 by the parties). {Date.) (Signatures. ) No. 43. Stipulation fixing fees of referee. See ante, p. 362 ; Code of Civ. Pro., § 3296. (Title of the cause.) It is hereby stipulated by the attorneys for the respective par- ties in this action (other than those in default for failure to appear or answer), that the fees of . the referee appointed to hear and determine this action be, and are fixed at, % for each day spent in the business of the reference (together with his. necessary expenses and disbursements). (Date.) (Signature of Attorneys.) 704 Appendix of Forms. No. 44. Stipulation as to compensation of stenographer. See ante, p. 32; Code of Civ. Pro., § 33 11. {TitU of the Cause.) It is hereby stipulated by the attorneys for the several parties to this action that , of , N. Y., be employed to take stenographic notes of the testimony and other proceedings in this action upon the trial thereof before , referee, and to furnish type-written copies of the same to the referee and to the attor- neys for each of the parties herein ; that said be paid $ for each day spent in taking notes of the testimony given and proceedings had before said referee and cents for each folio of each of the type written copies furnished to the referee and said attorneys ; that the cost or expense of taking such notes and of making and furnishing copies thereof as herein provided, be paid by the parties in equal proportions ; and that the party who shall recover final judgment herein may tax the amount paid by him to such stenographer as a part of his costs in this action. {Date.) (Signature of Attorneys.) OFFERS. No. 45. Offer to liquidate damages. See ante, p. 112 ; Code of Civ. Pro., § 736. SUPREME COURT. Harvey Chann agst. Oscar Daclos. Sir — Please take notice, that the defendant hereby offers {to stipulate) that if the defendant fails in his defense herein, and damages are awarded to the plaintifl on the trial of this action, such damages may be assessed at the sum of ($300). {PaU.) Yours, etc., E. D., Defendant's Attorney, (Office address^ To C. H., Esq., Plaintiff's Attorney. Appendix of Forms. 705 No. 46. Offer of judgment by plaintiff See ante, p. 1 14; Code of Civ. Pro., § 739. {Title of the cause.) The above-named plaintiff hereby offers 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. 114; 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 defendants See ante, p. 114 ; Code of Civ. Pro., § 738. (_Title of the cause.) The above-named defendant (or the defendant A. B., naming hini), 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 hit aittrttey.) To C. D^ Esq.. Attorney of the Plaintiff. 4-8 706 Appendix of Forms. NOTICES. No. 49. Notice of Trial — General. See ante, p. 196; Code of Civ. Pro., §977. ( Titk of the cause.) Sir — Take notice, that this action will be brought to trial at the next of this court to be held at the court-house in the of , in the county of , on the day of , 18 . Dated the day of , 18 . Yours, etc, A. B., Attorney for , {Office addreti.) To C. D., Esq., Attorney J or the No. so. Notice of trial for defendant. S^^ante, p. 196; Code of Civ. Pro., §977. ( Title of the cause.) To A. B., Esq., Attorney for the Plaintiff. Sir — Take notice, that the above cause will be brought to trial at the next trial term of the Supreme Court appointed to be held in and for the county of , at the (court-house) in the of , on the day of , 18 , and that a motion will be then and there made for a dismissal of the complaint, with costs. Dated the day of , 18 . Yours, etc., C. D., Attorney for the Defendant. {Office address.) No. 51. Notice of trial for the plaintiff, See ante, p. 196; 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 trial term of the Appendix ok Forms. 707 Supreme Court appointed to be held in and for the county of , at the (court-house) in the of , on the day of , i8 . Dated the day of , 18 . Yours, etc., A. B., Attorney for the Plaintiff. [Office address.) No. 52. Notice fixing time and place of hearing before a referee. iTitkoftke caust.) Please take notice, that I hereby fix and appoint the day of , 18 , as the time, and the office of , at , as the place of hearing of the above-entitled action. Yours, etc., E, F., 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. 196; Code of Civ. Pro., § 1018. {Title of tA* cause.) Sir — Take notice, that this cause will be brought to trial be- fore , Esq^ the referee herein, on the day of , 18 , at o'clock in the noon, at (state the place of hearing). {Datt.) 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. 197. {TitU of tht cause.) Sir — Please take notice, that the notice heretofore served upon you by the (plaintifl), bearing date the day of 18 , that <08 Appendix of Forms- this action would be brought to trial at the next trial term of the Supreme Court appointed to be held at the court-house in the of , N. Y. on the day of i8 , is hereby coun. termanded. Signature of Plaintiffs attorney. (Office atUresf.) To E. B., Esq., Attorney for the Defendant. No. 55. Notice of abandonment of part of claim in replevin. See ante, p. 194; Code of Civ. Pro., § 1719. {Title of the catise.') Sir — Please take notice, that the plaintiff abandons so much of his claim to the chattels specified in his complaint in this ac- tion as relates to the chattels, hereinafter specified, which have not been replevied under the requisition herein, namely {^specify the chattels) . (Vaie.) Yours, etc., E. F., Plaintiff's Attoriuy. (Offiti addrett.) To A. B^ Esq., Defendant's Attorney. No. 56. Notice that defendant demands judgment for return of chat- tel replevied, etc. See ante, p. 195; Code of Civ. Pro., § 1725. (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 and delivered to the plaintiff {or to , naming the per- son), or for its value, with dollars damages for the detention thereof. (Date.) Yours, etc., D, C, Defendant's Attorney. (Of/ice address.) To A. B., Esq., Plaintiffs Attorney. Appendix of Forms. 709 No. 57. Notice to creditors to appear and prove liens, etc See ante, p. 418; Code of Civ. Pro., § 1562. ( 71^ of the cause. ) In pursuance of an order made in this action on the l6th day of July, 18 , 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 i6th day of July, 18 , 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 , 18 , 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 complaint as follows: {insert a description of the lands'). {Date.) (Signature, Referee.) No. 58. Notice of acceptance of offer to liquidate damages. See ante, p. 112; Code of Civ. Pro., § 736. ( Title af the cause. ) Sir — Please take notice, that the plaintiff accepts the offer, bearing date the day of ,18 , 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 ($300). Yours, etc., C. H., Plaintiff's Attorney. \.Offi£t Address.) To El. D., Esq., Defendant's Attorney. 710 Atfxkdu of Forms. > No. 59. Notice of acceptance of offer of judgfmeiit. See ante, p. 1 16; Code of Civ. Pro. , §§ 738, 739. (TitU of the cause.) Sir— Please take notice, that the plaintiff accepts the offer of the defendant, dated the day of , 18 , to allow judg- ment to be taken against him in this action for the sum of ($530). with costs. (Z>a&.) (Signature of plaintiff or his attorney.) To. F. B., Esq., Attorney far Defendant. No. 60. Notice of payment of money into court. See ante, p. HI ; Code of Civ. Pro., § 732. SUPREME COURT. John Doe agst. Richard Roe. Sir— Please take notice, that the sum of ($250.21) heretofore tendered by the defendant to the plaintiff for his costs and damages herein was, on the day of ,18 , duly paid into court in this cause. {Date.) Yours, etc., Y. Z., Attorney for Defendant. (Office address.) To A. B., Esq.. Attorney for Plaintiff. Appendix of Forms. 711 No. 6i. Notice to produce papers at triaL See ante, p. 183. {Title »f tht cause.) Sir — Please take notice, that you are hereby required to pro- duce upon the trial of this action (^describe the papers to be pro- duced) and that in case of your faihire so to do, the (plaintiff) will give secondary evidence of the contents thereof. (^Date.) (Signature of plaintiff ' s aitom^^ To Richard Roe, Defendant, and to E. D., Attorney for the Defendant. No. 62. Notice of time of attending to strike a jury. See ante, p. 133; Code of Civ. Pro., § 1064. SUPREME COURT. Ambrose Borst agst. Caleb Duncan. Sir — Please take notice, that I shall attend, on behalf of the above named (defendant) before the clerk of the county of (or the commissioners 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 pur- pose of having the jury struck which has been ordered in this cause. {Pate:^ Yours, etc., H. M., Defendant's Attorney. (Office and post-office address^ To C. G., Esq., Plaintiff ' s Attorney. W? Appendix of Forms- No. 63. Notice of election to end reference See ante, p. 394; Code of Civ. Pro., § 1019. (Title of the cause.) Sir — Please take notice, that the (defendant) herel^ 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 timw when the cause was finally submitted. (Date.) {Signature of defendanft attoraty ) To A. N., Esq., Attorney for the Plaintiff. No. 64. Notice that cause will be moved for trial on particular day of term. See ante, p. 204; Code of Civ. Pro., § 791, subds. i and 2. ( Title of the cause. ) Sir — Please take notice, that I shall move the above-entitled action for trial on the (first) day of the Trial Term of this court appointed to be held at the court-house in the of , on the day of , 18 . ('^'"*) Yours, etc., (Signat-ure.\ To CD., Esq., Attorney for Defendant. iOffitt aJAat.) No. 65. Notice of settlement of interrogatories. See ante, p. 170; 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 (plaintifif) under the commission issued herein ; and that said interrogatories will be presented to Hon , for settlement, at , in the of , N. Y., on the day of , iS , at ten o'clock in the forenoon. {DaU.\ Yoiu^ etc^ (Signatttrt ami at^htsrt.) To , Esq., Attorruy for Appendix of Forms. 713 No. 66. Notice of filing consent to accept a gross sum in lieu of dower. See ante, p. 458; Code of Civ. Pro., § 1617, (TitU of the cause.) Please take notice, that the within is a copy of the consent of the above named plaintiff to accept a gross sum in full sat- isfaction and discharge of her right of dower in the real prop- erty described in the complaint in this action, and that said consent was filed in the office of the c'erk of the county of on the day of , 18 , (Date.) {Signature.) (Address.) No. 6y. Notice of entry of judgment. See ante, p. 626; Code of Civ. Pro., §§ 1340, 1351. (Titie of the cause ) Sir — Please take notice, that a judgment in thrs action, of which the within is a copy, was, on tlie day of , 18 , 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 for the No. 68. Notice of taxation or retaxation of costs. See ante, p. 567 ; Code of Civ. Pro., §§ 3263, 3264. {Title of the cause.) Sir — Please take notice, that the annexed (or the within) is a copy of the items of the (plaintiff's) costs and disbursements in this action, and that the same will be taxed (or teiA^&d, as the case may be), by the clerk of the county of (or of this court), at his office in , on the day of , 18 , at o'clock in the noon. (Date.) Yours, etc., H. B., Plaintiff's Attorneys. (Office and post-office address.) To C. D., Esq., Defendant's Attorney. 714 Appendix of Forms NOTICES OF MOTION. No. 69. Notice of Motion— General. See ante, p. 633. { THU cf the eame.) Sir — Take notice, that upon {specify the motion pt^rrs not pre- viously served), copies of whicii are served herewitli, and upon {specify other motion papers, if any), heretofore served (pr 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 ,18 , at the opening of the court, or as soon thereafter as counsel can be heard, for {specify order or relief sought, and if the motion is based upon an irregularity, specify the irregularity) , or for such further order or relief as the court may grant in the premises. {Date.) Yours, etc, C. D., Attorney for To E. F., Esq., Attorney for No. 70. Notice of motion to remove cause from the County Court to the Supreme Court. See ante, p. ^(i•, Code of Civ. Pro., § 342. ( Titlt of tie cause.) Sir — Take notice, that upon the affidavit of , a copy of which is herewith served upon you, and upon the pleadings here, tofore served 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 18 , 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 addrta.) To , Attorney for Appendix of Forms. 715 No, 70. Notice of motion to remove cause to Supreme Court to change the place of trial. See ante, p. 78 ; Code of Civ. Pro., § 342, iTitU of the cause.) Sir — Take notice, that upon the affidavit, a copy of which is herewith served upon you, and upon the pleadings heretofore served in this action (?/ 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 ,18 , at the opening of the court, or as soon there- after as counsel can be heard, for an order removing this action from the County Court of the county of , and changing the place of trial from the county of to the county of , (upon the ground that the convenience of witnesses will be pro- moted thereby,) and for such other or further order or relief as the court may grant in the premises. (Date.) Yours, etc., A. B., Attorney for Defendant. To C. D., Esq., Attorney for Plaintiff. No. 71. Notice of motion to consolidate actions pending in the same court. See ante, p. 100; Code of Civ. Pro., § 817. SUPREME COURT. James Bradner ) agst. \ Action No. t, Henry Barr and John Grant. ) SUPREME COURT. James Bradner agst. }• Action No. a. Henry Barr and John Grant. . I Sir — Please take notice, that upon the affidavit of Henry Barr, with a copy whereof you are herewith served, and upon the plead- ings heretofore served in the above-entitled actions, this court ''16 Appendix of Forms. will be moved at the next Special Terai thereof to be held at the (court-house) in the of , on the day of , i8 at the opening of the court, or as soon thereafter as counsel can be heard, for an order consolidating the above-entitled actioas into one action and for such other or further order or relief as tiie court may grant io the premises, and for the costs of this motion. {.Date.) Yours, etc., A. B., Attomty for Defendants, KOffiu addrtiu) To C. D., Esq., Attorney for Plaintiff. No. 72. Notice of motion to sever action in case of admitted demand.. See ante, p. 106; Code of Gv. Pro^ § Sn. 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 applica- tion will be made to this court at a Special Term thereof, to be held at , in . on the day of , i8 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order granting leave to the plaintifl 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. Yours, etc., E. F., Plaintiff's Attortuy. To G. H., Esq., Defendant's Attorney. (PJfici addrtss.) Appendix of Forjis. 717 No. 73. Notice of motion for a commission to examine a witness without the State on interrogatories. See ante, p. 164; Code of Civ. Pro., §889. (Title of the cause.) Sir — Please take notice that upon the affidavit of , with a copy whereof you are herewith served, and on the pleadings and proceedings in this action this court will be moved at a Special Term thereof to be held at , in the of , on the day of ,18 , at the opening of the court, or as soon thereafter as counsel can be heard for an order that a com- mission issue to of , or to some other competent person, authorizing him to examine J. K., as a witness for the defendant, under oath, upon interrogatories annexed to the com- mission, to take and certify the deposition of such witness, and to return the same with the commission according to the directions therein or therewith given ; and that 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. (Z>afe.) Yours, etc., T. F., Attorney for Defendant. To S. G., Esq., Attorney for Plaintiff. No. 74. Notice of motion for an open commission. See ante, p. 174; Code of Civ. Pro., § 894. (Title of the cause.) Please take notice, that on the annexed aflfidavit of A. B., with a copy whereof you are herewith served, and upon all the plead- ings and proceedings in this action, the undersigned will move at a Special Term of this court, to be he'd at the court-house, in the of , county of , on the day of ,18 , 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 wit- nesses who may be produced by either party to this action, on or 718 Appendix of Forms. 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 examined, and return the same and the commission, pursuant to statute 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 further order as may be just. (Date.) C. D., Attorney for Defendant. (Office address.) To E. F., Esq., Attorney for Plamtiff. No. 75. Notice of motion for a trial of questions of fact by a jury. See ante, p. 1 19; Code of Civ. Pro., §§ 970, 971. SUPREME COURT. Henry Allerton, agst. George Allen, Mary Allen, and another. Sir — Please take notice, that upon the afifidavit 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 18 , 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. (OJlce addresj.) To D. & F., Esqs., Plaintiff's Attorneys. Appendix of Forms. 71^ No. 76. Notice of motion for a trial by jury of the issue of adultery, etc., in divorce. See ante,p. 119; Code of Civ. Pro., §§ 1757, 1770. ( nUe 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 , 18 , 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 ac- cordingly. (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 stated for trial accordingly.) And also take notice, that the paper hereto annexed con- tains 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 ojjfke address.) Yours, etc., To , Esq., Attorney for the No. TJ. Notice of motion for a reference of the issues. See ante, p. 126; Code of Civ. Pro., § 1013. SUPREME COURT. James Griffiths agst. William De Forest. 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, this court will be moved, at the next Special Term thereof, to be held at , in the city of , on the "^20 Appendix of Forms day of , l8 , at the opening of the coort, or as soon there- after as counsel can be heard, for an order referring this action 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, iSgluOtirc aad t^et aUrttt. ) To A. B., Esq., Attorney for Defendant, No. 78. Notice of motion for a new hearing, after trial of specific questions of facts by a referee. See ante, p. 380; Code of Civ. Pro., § 1004. (TitU of the cause.) Please take notice, that upon the affidavit, with a copy whereof you are herewith served (and upon the report of , E?q., referee, bearing date the day of , 18 , heretofore filed in this action), this court will be moved at the next Special Term thereof, appointed to be held at the , in the of , on the day of 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order setting aside said report and directing a new hearing of the ques- tions of fact heretofore referred to said {if the motion is based upon a mere irregularity, add), upon the ground (specifyi)^ the irregularity), and for such other or further order or relief as the court may grant in the premises. Yours, etc., Z. W., Attorney for (OJUe adtino.) To A. B., Esq., Attorney for Appendix of Fokms. 721 No. 79. Notice of motion to obtain order preferring cause on cal- endar. See ante, p. 203; 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 affidavit of John Doe, verified on the day of , 18 , this court will be moved, at a Special Term thereof, to be held on the day of , 18 , at , in the of , for an order that this ac- tion be tried as a preferred cause under the provisions of subdi- vision 7 of section 791 of the Code of Civil Procedure. (Z?a«.) Yours, etc., A. B., Attorney for the Plaintiff. {Office and fioit-office address.) To C. D., Esq., Attorney for the Defendant. ORDERS. No. 80, Order for the taking of depositions — By the court. See ante, p. 176; 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 R. R., dated the day of 18 , 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, 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), 46 723 Appendix of Forms. and C. D., of counsel for the opposed, 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 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, and that the said take and certify the deposition of each witness, and re- turn the same with this order pursuant to law (and the directions hereon indorsed). \Atia{h copies of §§ 900, qoi, 902 0/ the Code of Civil Procedure^ No. 81. Order for taking the deposition — On stipulation. See ante, p. 177; 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 , 18 , 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 be- fore the examination, be taken before Hon. , of the of , State of , aforesaid, upon oral questions to be pat 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 in- serted, 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 cierkJt (Attach copies of §§ goo, goi, goz of the Code of Civil Procedure.) Appendix of Forms. 723 No. 82. Order for a commission to examine witness on interroga- tories. See ante, p. 166; Code of Civ. Pro., § 889. {Caftwn and title of cause.) On reading and filing the affidavit of , dated the day of , 18 , making satisfactory proof that the testimony of J. K., a witness not within this State, is material to the (defend- ant) in the (defense) of the above-enlitled action, and on the pleadings and proceedings in said action, and on motion of , of counsel foi 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 such provisions as to terms as the court directs^ No. 83,. Order that an open commission issue. See ante, p. 174; Code of Civ. Pro., § 894, ( Caftum and title of cause.) On reading and filing the affidavit of , dated the day of , 18 , making satisfactory proof that one or more wit- nesses 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 mo- tion 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 commissioner s) 724 Appendix of Forms. authorizing him {or them or either of them) to examine any wit- ness who may be produced by either party, on or before the day of , i8 , at a time and place within the State of {specify the State) , to be specified by due written notice to the other party, upon oral questions to be put to the witness when produced, under the issues in this action, and to take and certify the deposi- tion 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 action 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). No. 84. Order for an inspection of papers, with copy, etc See ante, p. 192; Code of Civ. Pro., § 807; Rule 16. (Caption and title of cauiei) An order having been heretofore granted in this action direct- ing the defendant to allow the plaintifif, on or before the day of , 18 , to inspect and take a copy of a certain {describe the paper or papers), ox xvi 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 in- spection with copy should not be allowed, now on reading and filing said order to show cause and the petition upon which the same weis granted, and the affidavits of read in opposition to the motion, and on motion of , of counsel for the plaint- iff, after hearing of , counsel for the defendant, it is* Ordered, that the defendant in this action produce at the office o{ {state the place) on the day of , 18 , at o'clock in the noon, the {specify the paper or papers), and there allow the plainliff to inspect the same and to take copies thereof (under the direction and superintendence of , who is hereby ap- pointed 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 defendant pay to the plaintiff $10 as the costs of Appendix of Forms. 725 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 re- main in the office of said clerk for full days from the service of said notice of deposit; that the plaintifT be allowed freely to inspect the same during the time said papers so remain on de- posit; and that the defendant pay to the plaintiff $ioas the costs of this motion. No. 85- Order for the production of books, etc., at the trial. See ante, p. 143; Code of Civ. Pro. § 867. SUPREME COURT. John Doe agst. Richard Roe. On reading the affidavit of , verified on the day of , 18 , and on motion of , of counsel for the , Ordered, that produce at the trial term of this court (or hearing) appointed to be held at , in the of , on the day of ,18 , 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 (Richard Roe) is defendant, on the part of said (defendant). {Date.) (Signature 0/ judge »r referee.) 736 Appendix of Forms, No. 86. Order requiring the production of orig-inal record at the trial. See ante, p. 142; Code of Civ. Pro., § 866. At a Special term of the Supreme Court, held at , in the of , on the day of , 18 . Present — Hon. , Justice. John Doe agst. Sichard Roe. On reading and filing {specify the motion papers), whereby it appears 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 the counsel for the , it is Ordered, that the original record of {specify the record or docu- ment') 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 certain action then and there to be tried, in which John Doe is plaintiff and Richard Roe is defendant. No. 87. Order by county judge staying proceedings pending a motion. See ante, p. 79 ; Code of Civ. Pro^ § 345. County Court — County of Fulton, William S. Brown agsL Andrew J. Smith. On reading the affidavit of Andrew J. Smith, the defendant above named, verified the day of ,18 , by which it appears that an issue of fact was Joined in this action on the day of 18 , that the plaintiff has noticed said action for trial at the next trial term of the County Court of Fulton Appendix of Forms. 737 county, to be held on the day of , i8 , that on the day of , i8 , the defendant caused to be served upon the plaintiff's attorney notice of a motion to remove said action from said County Court to the Supreme Court, for the pur- pose of changing the place of trial, that said motion is now pend- ing in the latter court and will be brought to a hearing at a Spe- ' cial Term thereof, to be held at , on the day of , ' 1 8 , and that the defendant has used due diligence in prepar- ing the motion for the earliest day after issue joined, now on motion of . of counsel for the defendant it is Ordered, that all proceedings in this action in said County Court, and particularly the trial of said action, and {specify the ' important steps), be stayed until the hearing and determination of said motion, but not exceeding twenty days from the date hereof. (Date.) J. K., County Judge of Fulton County. No. 88. Order for the examination of a party before trial. See ante, p. 153 ; Code of Civ. Pro., § 873. (Title of tie cause.) On reading and filing the affidavit of , verified on the day of ,18 , and on motion of , of counsel for the , Ordered, that the above-named A. B., the (defendant) in this action be examined and his deposition be taken before trial pur- suant to Article i, of Title 3, of Chapter 9, of the Code of Civil Procedure, and that for the purpose of taking such examination the said (defendant), A. B., appear before Y. Z., the referee here- inafter appointed, at his office at No. , in the city of N. Y., on the day of ,18 , at o'clock in the noon, and then and there submit to an examination con- cerning the matters relevant to the issues {or to the issue of ) in this action. That the said Y. Z. be, and hereby is, appointed a referee for the purpose of taking such examination and deposition. That a copy of this order and of the affidavit upon which it is granted be served upon said (defendant) A. B., and upon his attorney in this action, on or before the day of ,18 {Date.) (Signature and effidal titie,) 728 Appendix of P'orms. No. 89. Order postponing trial of an action. See ante, p. 229; Code of Civ. Pro., § 3255. (Caption and titU of the cause.) On reading and filing the affidavit of , and on nnotion 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 trial term of this court appointed to be held in tliis 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 ineflectual by such postponement. No. 90. Order removing cause to the Supreme Court and changing the place of trial. See ante, p. 80 ; Code of Civ. Pro., § 344. At a Special Term of the Supreme Court, held at , in the of , on the day of , 18 Present — Hon. , Justice. John Doe agst. Richard Roe. On reading and filing the afBdavit of A. R., verified on the day of ,18 , the pleadings in this action, the notice of this motion, the affidavits of J. D. and H. S., verified on the day of ,18 , and after hearing A. B., of counsel for the defendant, in support of tlie motion, andC. D., of counsel 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 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 Forms. 729 No, QI. Order consolidating actions pending in the same court See ante, p. 103 ; Code of Civ. Pro., § 817. (Caption and title of all tht aetions.) On reading and filing the affidavit of Henry Barr, verified the day of ,18 {specify opposing affidavits, etc., if any), the pleadings 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 plaintifl, 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 consolidated action, and for that pur- pose be deemed one pleading ; that the accrued costs in the sev- eral 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. Q2. Order for the removal of a cause from the County Court to the Supreme Court. See a7tte, p. 78; Code of Civ, Pro., §342. (Caption and title of the cause.) On reading and filing the pleadings heretofore served in this action, the affidavit of , verified the day of , 18 , (the notice of this motion and proof of due service thereof), and on motion of , attorney for the defendant, no one appearing {or after hearing , attorney for the plaintifl), 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 proceed- ings be had in the latter court ^30 Appendix of Forms. No. 93. Order changing the place of trial. See ante, p. 88 ; 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 agst. Richard Koe. On reading and filing the pleadings in the above-entitled ac- tion, the af&davits of {specify the papers read on the motion), and after hearing D. M., Esq., of counsel for the defendant, in favor of the motion, and J. K., Esq., of counsel for the plaintiff, op- posed. 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 plaintiff pay to the defendant f 10, as costs of this motion. No. 94. 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 direction of the court as to costs). No. 95. Order preferring cause on calendar. See ante, p. 205; Code of Civ. Pro., § 793. At a Special Term of the Supreme Court, held at , in the of , on the day of > ^8 : Present — Hon. , J ustice. , John Doe agst. Drovers' Bank. On reading and filing the pleadings in this action, the affidavit of John Doe, verified on the day of , 18 , {specify Appendix of Forms. 731 She papers 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 defendant, opposed), Ordered, that this action be tried as a preferred cause, under section 791, subdivision 7, of the Code of Civil Procedure. No. 96. Order granting leave to sever the action, for judgment, etc See ante, p. 107; Code oi Civ. Pro., § 51 1. At a Special Term of the Supreme Court, held at , in the of , on the day of , H t Present — Hon. , Justice. Thomas Moran agst. 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 ipr after hearing G. H., Esq., attorney for the defendant, in opposition to the motion), I Ordered, that this action be and hereby is severed, and that a I judgment be entered for the plaintiff to the effect that he re- cover (specify the recovery), for {specify the part of the claim in- cltided in the recovery), ihe; -pATt oi 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 soch election by a notice in writing, subscribed by his attorney, served upon the attorney for the defendant on or before the day of , 18 ; and that if the plaintiff elects to continue said action, and gives notice of such election, as above provided, that such action be tnereupon continued with like effect as to the sub- sequent proceedings as if it had been originally brought for the remainder of the plaintiff's claim. 732 Appendix of Forms. No. 97. Order for a struck jury. See ante, p. 134; 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. Caleb Duncan. On reading and filing the pleadings in the above-entitled ac- tion, and the affidavit of Caleb Duncan, and after hearing H. M.. of counsel 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 Trial 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 \pr the con missioner of jurors of the county of , or the clerk of this court, as the case may be\ 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 \pr the proper officer"], fix a time for the parties to this action to attend before him for the purpose of having said jury struck.) No. 98. Order appointing disinterested persons to strike jury. See ante, p. 134; Code of Civ. Fro., § 1068. {Caption and title of the cause.) {.Proceed as in the above form to the *, then insert) that B. C. and H. G., two disinterested persons of the county of , strike said jury ; that such special jury attend a trial term of this court, appointed to be held in and for the county of , on the dav of . '8 ^or specify a particular day in the term). Appendix of Forms. 733 (That the parties to this action attend before the said B. C. and H. G. on the day of , i8 , 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). No. go. Order for the trial of specific questions of fact by a jury. See ante, p. 120 ; Code of Civ. Fro., § 971. At Special Term of the Supreme Court, held at' the , in the of , on the day of ,18 Present — Hon. , Justice. John Doe agst. Richard Roe. On reading and filing the afifidavit of , the pleadings in this action, the notice of this motion, the questions of fact pro- posed to be submitted to a jury for trial, and proof of due service of a copy of said afifidavit and questions of fact with the notice of motion, and on motion of , of counsel for the (defendant), after hearing , of counsel for the (plaintiff). Ordered, that the questions of fact involved in the issues in this action, and hereinafter specified, be tried at a trial term of this court 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. 100. Order for the trial by a jury of the issue of adultery in divorce. See ante, p. 120; 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 , 7S4 Appendix of Forms. Ordered, that the issue of adultery raised by the pleadings in this action (and the issue on the question of thelegitimacy of the infant , raised by the complaint and answer herein) be tried by a jury, and that all questions arising upon those issues be dis- tinctly and plainly stated for trial accordingly. And it is further ordered, that it be referred to Esq., counselor at law, as referee, to distinctly and plainly state the questions arising on said issues of adultery (and legitimacy) in the form of interrogatories, to be answered by the verdict of the jury thereon. Aud 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 said issues in accordance with this order ; and that upon the coming in and confirmation of his report, the tes- timony to be taken in this cause upon said issues shall be directed and confined to the questions so stated and settled. No. loi. Order of course referring cause. See ante, p. 131 ; Code of Civ. Pro., § 101 1. {Title of the cause.) 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 [. C, Esq., counselor at law, to hear and determine the same. (DaU.) (Signature of clerk.) No. 102. Order of court referring cause on stipulation. See ante, p. 131 ; Code of Civ. Pro., § loii. {Caption and title of the cause.) On reading and filing the written consent and stipulation of the parties hereto, and on motion of D. M., attorney for the plaintiff, it is ordered that the above-entitled cause, and all the issuas thereon, be and the same hereby are referred to J. C.^ Esq., coun- selor at law, to hear and determine the same. Appendix of Forms. 735 No. 103. Order referring- cause when referee named refuses to serve. See ante, p. 132 ; Cade of Civ. Pro,, § lOii. {Caption and title of the cause.) On reading and filing the written consent and stipulation of the parties hereto that the above-entitled cause be referred to J. C, Esq., and it appearing that the said J. C. 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 E. B., Esq., counselor at law, to hear and deter- mine the same. No. 104. Order referring cause after new trial granted. See anie, p. 132 ; Code of Civ. Pro., § loii. (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 respective 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 referred to A. F., Esq., coun- selor at law, to hear and determine the same. No. 105. Order of reference of the issues. See ante, p. 131 ; 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. James GrifiSths agst William DeForest. On reading and filing the pleadings in this action, the affidavit of James Griffiths and the affidavit of William DeForest, and after 736 Appendix of Forms. hearing 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 determine the same. No. io6. Order of reference of particular issues. See ante, p. 133; 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 particular issue referred) be, and the same hereby is, referred to B. S., Esq., a counselor of this court, to hear and determine. No. 107. Order of reference in foreclosure— Whole amount due. See ante, p. 430; Rule 60. (Caption and title of the caused On reading the complaint on file in this action (the answer of the defendant ), and on 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 actually due, and on filing proof of the personal service of the summons in this action on the defendants {namingthe defendants served) , more than 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. Appendix of Forms. 737 No. io8. Order of reference in foreclosure— Whole amount not due. See ante, p. 430; Rule 60. ( CapHen iind title of the cause.) On reading the complaint on file in this action (the answer of the defendant ), and the affidavit of , plaintiff's attor- ney, 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 ac- tion 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 defendant 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 com- pute 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 prem- ises). 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 mort- gaged 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. No. 109. Order of reference in foreclosure — Whole amount not due- Infants and absentees. See ante, p. 430; Rule 60. ( Caption and title of the cause.) On reading the complaint on file in this action, the answer of the defendant . the affidavit of , plaintiff's attorney, 47 738 Appendix of Forms. and it appearing that this action is brought to foreclose a mort- gage, 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 plain- tiff, it is* Ordered, that it be referred to Esq., of , N. Y., to compute the amount actually due to the plaintiflf 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 mort- gaged 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 Forms. 739 No. no. Order of reference in foreclosure — Whole amount due — In- fants and absentees. See ante, p. 430; Rule 60. ( Caption and title of the cause. ) On reading the complaint on file in this action, also the affida- vit of , plaintiff's 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 be referred to , of , N. Y., to com- pute 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. [II, Order of reference to inquire as to creditors, etc See ante, p. 418; 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 ascer- tain and report whether there is any creditor, not a party to this action, who has a lien 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 published once in each week for six successive weeks in the , a newspaper published in the county of , 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 prop- erty 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 740 Appendix of Forms. 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. No. 112. Order of confirmation in foreclosure. See ante, p. 473. (Caption and title of the cause.) On reading and filing the report of J. B., the referee heretofore appointed herein of the sale of the mortgaged premises mentioned and described in the complaint in this action, which said report bears date the day of .18 , the notice of this motion, and proof of due service thereof, and on motion of , attorney for the plaintiff (no one appearing to oppose), Ordered, that the said report be, and the same is, in all things, confirmed. No. 113. Order for a new hearing of specific questions of fact before a referee. See ante, p. 380 ; Code of Civ. Pro., § 1004. (Caption and title of the cause.) On reading and filing the (specify the papers read on the motian), and on the motion of , of counsel for the , after hear- ing , of counsel for the , Ordered, that the order made herein on the day of ,18 whereby it was referred to , Esq., to report said referee's findings upon (state the questions referred) be and hereby is vacated and discharged, and that the report of said referee, bearing date the day of ,18 , 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 Forms. 741 No. 114. Order to show cause — GeneraL See ante, p. 636. At a Term of the Court, held at the in the of , county of , this state, this day of ,18 : Present — Hon. , Justice. John Doe agst. Richard Roe. On reading the affidavit of A. B., verified the day of , 18 , {specify other motion papers) and on motion of C D., attor- ney for the (defendant), Ordered, that the (plaintiff) herein show cause thereon, at a (Special) Term of this court, to be held at the , in the , of on the day of ,18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why {state the order or relief sought, and if the motion is based on an irregularity, specify the irregularity complained of), and why the (defendant) should not recover of the (plaintiff) costs of this mo- tion. Service of a copy of this order, and of the papers on which it is granted, made (personally) on the attorney for the (plaintiff) on or before the day of ,18 , shall be sufficient. No. 115. Order to show cause why an inspection of papers should not be had. See ante, p. 188 ; Code of Civ. Pro., § 805. (^Caption and title of the cause. ) On reading and filing the petition of A. B., verified the day of ,18 , 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 ,18 , allow the plaintiff herein to inspect {specify the paper) and to take a copy of the same, or in default thereof that the said defendant show cause at a Special Term of this court to be held at the , in the of , on the day of 18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why the prayer of said 743 Appendix of Forms. petition should not be granted, and such inspection, 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 before the day of , i8 , shall be sufficient. WRITS. No. ii6. Writ of habeas corpus ad testificandum. See ante, p. 139 ; Code of Civ. Pro., § 2008. SUPREME COURT. The People of the State of New York, on the relation of Richard Roe, agst. John Latour, Sheriff of the County of The People of the State of New York, on the relation of Richard Roe. To John Latour, Sherifl of the County of , Greeting : We command you that you have the body of John 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 trial term, to be held at the court-house in , in and for the county of . on the day of ,18 , at the open- ing 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 Roe, defendant, 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 .18 (Seal.) (Signature 0/ Clerk.) (Signature »f A ttcn ney ) Appendix of Forms. 743 No. 117. Return to writ of habeas corpus ad testificandum. See ante, p. 140; Code of Civ. Pro., § 2013. SUPREME COURT. The People of the SUte of New Yoric on the relation of Richard Roe, agst. John Latour, Sheriff 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 execution, by virtue of which he is so detained. {Date.) JOHN LATOUR, Sheriff of the County of , No. 118. SUBPCENA. Subpoena for the Trial Term. See ante, p. 137. The People of the State of New York, to {insert the names of the several witnesses^, 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 Supreme Court, or some one of them, at a Trial Term, to be held at the , in , in and for the county of , on the day of , 18 , 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 744 Appendix of Forms. Doe, plaintiff, and Richard Roe, 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 sus- tained thereby to the party aggrieved, and forfeit $50 in addition thereto. Witness, , Esq., one of the justices of our Supreme Court, the day of , 18 . {Signature of clerk ) (Signature of plaintiff's attorney.) No. 119. SubpcEna for reference. See ante, p. 137. The People of the State of New York, to (insert the names of the several witnesses), Greeting : We command you and each of you, that (all and singular busi- ness and excuses being laid aside) you and each of you appear and attend before D. F., Esq., referee, duly appointed under an order of the Supreme Court, on the day of , 18 , 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 Richard 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 , 18 . (Signature 0/ the clerk.) (Signature of t\t plaintiff's attorney.') No. 120. Subpoena duces tecum. See ante, p. 140. 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 Appendix of Forms. 745 before the justices of the Supreme Court, or some one of them {or , Esq., referee, duly appointed, etc.), on day of , ^8 , at o'clock in the noon of that day, to testify what you may know in a certain action now pending un- determined in the said court, between John Doe, plaintifl, and Richard Roe, defendant, on the part of the plaintifl, and that you bring with you, and produce at the time and place aforesaid a certain {describe the book or paper which the witness is to pro- duce) 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 clerk.) {Signature of the plaintiff's attorney.) No. 121. Subpoena ticket— Trial Term. See ante, p. 138. 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, be- fore one of the justices of the Supreme Court, at a Trial Term appointed to be held in and for the county of , at the in , on the , day of , 18 , 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 Richard Roe, de- fendant, on the part of the (plaintiff). And for a failure to at- tend, 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 $50 in addition thereto. {Date.) By the Court. To (insert tie ruaneof the witness.) {Signature of plaintiff'' s attoi-ney. ) 746 Appendix of Forms. No. 122. Subpoena ticket for reference. See ante, p. 138. 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. F., Esq., the referee appointed by the court, at , on the day of , 18 , at o'clock in the noon, to testifj" 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 Richard Roe, 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 or damages sustained thereby to the party aggrieved, and forfeit $50 in addition thereto. (Date.') By the Court. To (insert the name of the vrUncss). (Signature of plaintiff' t attorney.) COMMISSIONS AND INTERROGATORIES. No. 123. Commission to examine witness upon interrogatories. See ante, p. 168; 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 a commissioner, and by these presents do authorize you to examine J. K., of , State of , as a witness in a cause pending in our Supreme Court, wherein is plaintiff, and is defendant, in behalf of the , under oath, upon the interrogatories 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 here- with given. Witness, Hon. , one of- the justices of our Supreme [L. s.] Court, at , the day of , 18 . ( Signature of attornev. ) ( Signature of clerk.) (Annex a copy of section goi and of section go2 of the Code of Civil Procedure, and the interrogatories and cross-interrogatories, as settled.) Appendix of Forms. 747 No. 124. Commission to examine partly upon oral questions. See ante, p. 172 ; Code of Civ. Pro., § 893. The People of the State of New York, to , Greeting : Know ye, that pursuant to an application ( 723 . For an inspection, etc., of papers 724 For the production of books at the trial 725 For the production of original record at the trial 726 By county judge staying proceedings 726 For the examination of a party before trial 727 Postponing trial 728 Removing cause and changing place of trial 728 Consolidating actions 729 Removing cause from County to Supreme Court 729 Changing place of trial 730 Denying motion for change of venue 730 Preferring cause on the calendar 730 Granting leave to sever action, for judgment, etc 731 For a struck jury 733 764 Index of Forms. ORDER— (Continued) : Page. Appointing persons to strike a jury 732 For the trial of specific questions by jury 733 For trial of issue of adultery by jury 733 Of course referring a cause 734 Referring a causo on stipulation 734 Referring a cause where referee named refused to serve 735 Referring a causo after a new trial granted 735 Of reftrence of the issues 735 Of reference of particular issues 786- Of reference in foreclosure — Whole amount due 736 Whole amount not due 736 Infants and absentees 737, 739 Of reference to inquire as to creditors 739 Of confirmation in foreclosure 740 For new hearing of specific questions by referee 740 To show cause — general 741 Why inspection of papers should not be had 741 PETITION: For a writ of habeas corpus ad testificandum. 697 For a discovery and inspection of papers 698 REPORT : Of sale upon foreclosure 755^ RETURN : To writ of habeas corpus ad testificandum 748 STIPULATION : To refer the action 699 To referee named 700 Court to name the referee 700 To try the cause elsewhere than at court bouse 701 For an order to take depositions 701 That an open commission issue 703 That deposition be taken within this state 702 That commission issue to examine upon interrogatories 708 Fixing fees of referee 703 As to compensation of stenographer 704 SUBPCENA : For the trial term 748 For reference 744 Duces tecum "44 SUBPOENA TICKET; Trial term 745 For a reference 746 WRIT: Of habeas corpus ad testificandum 742 GENERAL INDEX. ABSENCE: Page. Of counsel, as ground for postponement of trial 226 Of a material witness 225 ACCEPrANCE : Of a tender Ill Of offer of judgment 116 Effect of non-acceptance 116 ACCOUNT ; What constitutes an account proper 71 What is a long account 70 Examination of a long account as a ground for a reference 68, 127 Putting books of acoount in evidence 272 Compelling production of books of account on the trial 141, 143 Reference to take and state an account 416 Proceedings on the reference 417 ACCOUNT STATED : Action upon, not referable 73 ACKNOWLEDGMENT : Of offer of judgment by the party not required .. 115 Of instruments as proof of execution 271 Certificate of acknowledgment not conclusive 271 Fees for taking and certifying 676 Of consent to receive a gross sum in lieu of dower. .... 458 ACTION : Civil action defined , 46 The issues in civil actions 49 Actions triable by jury as of right 56 Referable aclions 68, 69 Removal of actions 76, 78, 80 Staying proceedings in 82, 84 Changing place of trial of 87 Consolidation of actions ... . 100 Severing an action 104 Multiplicity of actions as affecting costs 496, 509 ADDITIONAL ALLOWANCE. (See Costs) : Bystatute 540 By the court 542 ADJOURNMENT. (See Postponement) : Of terms ot court 11 From day to day or to a future day 11, 12 Of Court of Appeals H When judge or justice fails to attend U 765 756 General Index. A.DJOURNME^fT— See Postpobnment— (Continued) : Page. Postponement of the trial 325 Of a trial by a referee 360, 362, 36i, 365 Terms imposed as a condition of adjournment 229, 507 Hearing of contested motion at term adjourned to chambers 648 Of term to chambers 12 ADMINISTRATOR : Preference of actions or proceedings by or against 201 Certificate to entitle plaintiff to costs against 353, 504 Bight to indemnity oui of trust fund for expenses 475, 476 Costs in equity on judgment against, are discretionary 506 Costs in actions by or against 512 ADMISSION : Of attorneys to practice 23 4.DMISSI0NS : In pleading, by failure to deny 50 No evidence can be received inconsistent with admissions 50 Severance of action on admission of part of plaintiflE's claim 104 Proceedings on admitted claim 106, 501 Procuring admission that a paper is genuine 183 Of facts pleaded by demurring 213, 316, 218 By default in appearing or pleading 607 ADVICE OF COUNSEL : How stated 94, 95 AFFIDAVIT : Includes a verified pleading or verified petition or answer 638 Title 638 Venue .. 638 Recitals 638 Statement of residence of deponent by way of recital 639 Statement of character or capacity of deponent , 639 Facts and not conclusions should be averred 639 Statements made on information and belief 639 Presumption as to personal knowledge of afiiant 640 Allegations of want of knowledge sufficient to form a belief 640 Omission of deponent's signature 640 Signature and official title of the officer 641 Omispion of the jurat 641 Who are authorized to take an affidavit 641 Requisites of an affidavit on ex parte motion 643 Compulsory affidavits ; 643 Folioing, ink and paper 643 Service of affidavits 644 To oppose a motion generally 650 Piling 657 To obtain registration as an attorney 25 On proceedings to disbar 39 General Index. 7GT AFFIDAVIT— (Continued): Page. On motion for substitution of attorneys 36 On motion to remove cause to another court 77, 79 On motion for stay of proceedings 86 To change place of trial to the proper county 89 To change venue for convenience of witnesses 94 To oppose change of venue 97 On motion to consolidate actions 102 On motion to sever action , 106, 108 Of authority to offer judgment 115 Of authority to accept offer of judgment 116 Of service of the summons in divorce 124 On motion for compulsory reference 127, 411 To oppose a reference 128 To procure a special jury 134 To procure attendance of a witness with records 142 For the production of books of corporation 143 For an examination of party or witness before trial 146^ To vacate order for examination before trial 157 On application for a commission 164, 172, 174 On motion to suppress a deposition 181 On application for a discovery 186 To vacate order for a discovery 189 To obtain a preference on the calendar 204 Of merits 89, 208, 232 To obtain postponement of the trial 237 To oppose postponement 228 Of a juror to impeach verdict 345 Of failure to file decision 390 On motion to set aside report of referee 404 On motion for a new hearing , 415 Of disbursements on taxation of coats 569 Ab to charge for witness fees 559, 570 As to charge for referee's fees 571 On application for judgment of foreclosure 465, 599 On application for judgment by default against non-resident 606 On application for additional allowance 656 Fixing date of decedent's death in action for negligence 594 AFFIDAVIT OF MERITS : Once filed and served 8uflB.oient „. 89 Eequisites of 88 Service of 208 When not required to prevent an inquest 232 AFFIRMATTVB: Party holding, has the right to open and close 248, 337 When a party holds the affirmative. 249 Party holding mtist put in all his evidence before resting. ..., 252 Party alleging the affirmative of an issue must prove it 251 768 General Index. AGE: Page. Limit for the retirement of judges 15 Certificate of age to be filed by a judge 16 AMENDMENT : Of offer of judgment 117 Of questions to be submitted to a jury 120 Service of amended pleading defeats notice of trial 196, 198 May be allowed upon the decision of a demurrer 220 Where costs are imposed as a condition of amending 224 General provisions of the Code as to amendments 297 As to parties 297 Inserting allegation material to the case 300 la case of variance between pleadings and proof 301 Where the variance is immaterial, no amendment required 301 Limit to the power of the court to allow amendments on the trial 302 Examples of amendments allowed 302 When pleading cannot be amended to conform to proofs 303 After an objection that the evidence does not support pleading ...... 303 When and how r.n amendment should be made on the trial 308 Failure of proof cannot be cured by amendment 304 Power of referee to allow amendment on the hearing 360, 363 Of judgment renders new notice of entry necessary 628 ANSWER, (See Pleadings) : When the answer raises an issue of fact 49, 50, 51 Cannot make a non-referable action referable 69 Cannot make a referable action non-reterable 69 Admitting part of plaintiff's claim 104, 106 Discovery to enable defendant to answer 185 To be liberally construed upon demurrer 316 Determining demurrer to a separate defense 217 Partial defense 217 Complaint may be attacked on demurrer to answer 217 Any answer good as against insuflficient complaint 217 Amendment of the answer on the trial 297 May be stricken out for disobedience to order for discovery 194 APPEAL : Stay of proceedings pending appeal 85 From an order of reference 132 Does not 1 ie from order refusing to postpone the trial 231 When a motion for new trial is a necessary preliminary 350 Appeal from a judgment as a waiver of retaxation of costs 575 Costs on appeal 528 No appeal lies from an ex parte order 664 APPELLATE DIVISION : A court of record 1 Jurisd iction of 2 Place of holding terms 5 General Index. 769 APPELLATE DIVISION-(Contintied) : Page. Appointment of terms 5 Duration of terms 5 Change of place of holding terms 9 Appointment of terms of the Supreme Court 5 Designation of justices to hold terms 5, 7 How constituted 13 Quorum 13 Concurrence of three justices necessary to decision 13 Limitation of powers of Justices 17 Admission of attorneys by 33 Disbarment of attorneys by 36, 39 Appointment and removal of clerk 4t Framing general and special rules of practice 46 May render judgment on appeal from judgment of non suit 335 Justice of, cannot receive a verdict 344 Non-enumerated motions noticed for any day in the term 633 APPOINTMENT : Of time and place of holding courts 4 Of time and place of hearing by a referee 195 ARGUMENT : Of an issue of lavr 318 Of a motion. . . 653 ARRAY : Challenge to the array 289 ASSAULT : Costs in actions for damages for an assault 477, 484 ASSIGNEE : Liability for costs 517, 518 ATTACHMENT : Statutory allovrance of costs where attachment has issued 540, 541 Proof of, before judgment by default after publication of summons. . 606 ATTENDANTS : Of courts 42 ATTORNEYS : Nature of the oflSce of attorney. 22 An officer of the court 33 Right to practice 23 Are not officers of the State 33 Admission of 23 Taking and subscribing oath of office 24 Non-resident attorneys 24 Registration of attorneys 35 Acting as attorney without right 35 Judges and justices cannot act as attorneys 19, 36 49 770 General Index. ATTORNEYS— (Continued) : Page. Clerks, deputy clerks, sherifiEs, etc , cannot act as 26 Suspenaion or removal from office 26 Grounds for suspension or disbarment 26, 28 ConTiction of a felony 26 Pardon after conviction 26 Dec living court or party 27 Purchase of chose in action for purpose of suit 27 Offering or paying money for professional business 28 Defending where attorney was public prosecutor 28 Proceedings to disbar for an indictable offense 28 Proceedings to disbar an attorney 29 Effect of death, disbarment, etc., on pending action 30, 36 Powers of attorneys in the management of causes » 3o Duration of an attorney's authority 30, 31 Contract of attorney is entire 30 Cannot abandon client's cause 30 May be discharged at any time without cause 30 Not bound by instructions of clients. 31 May stipulate to ref^: 31, 128 May discontiue action 31 May direct sheriff as to execuliou 32 May receive payment and satisfy judgment 32 Cannot compromise claim, etc., without authority 32 Cannot withdraw answer and Buffer default 33 Cannot submit controversy to arbilralion 32 Liability of client for disbursements 32 I^n of attorneys 33 Notice of lien not required 33 Settlements between parties 34, 35 Kghts as to judgments for costs 34 Retention of papers until payment 85 €3iange and substitution of attorneys 35 When necessary 35, 36 Proceedings to obtain change and substitution 36 Motion papers 37 Determination of amount due attorney 37 Unconditional substitution 38 Adverse party not entitled to notice of motion 38 Stipulations between attorneys BS Oral stipulations when not enforced 38, 39 Oral stipulations made in open court 39 Limiting scope of stipulations ... 39 Relief from stipulations 39 Refeience of claims for professional service 71, 131 Offer of judgment by the attorney of record 115 Acceptance of offer of judgment by 116 Power to compel attorney to produce his client's papers 141 Absence of counsel as a ground for adjournment 236 Interviewing witnesses before trial 310 Latitude allowed counsel in summing up 328 General Index. 771 BELIEF: Page. Affidavit to obtain examination before trial may be made upon 150 Allegation of, in petition for discovery 187 Statements in affidavits generally made on belief 639 Allegations of want of knowledge sufficient to form a belief 640 BIAS: Of witness may be shown to discredit him 25S Of juror a ground of challenge 243 BOOKS; Proearing attendance of witness with, by subpcena 140 Compelling production on the trial of books of account 141 Production of books of corporation compelled by subpoena 141 CompelHng production of, by order 143 Vacating or modifying the order or subpoena 144 Discovery of books and papers 18o Patting books of account in evidence 272 Reading law books to the jury 329 Power of a referee to compel witness to bring 360 Judgment-book 622 Docket-book 6S4 BEIEF: Preparation of brief for trial 210 BURDEN OF PROOF : Lies with the party holding the affirmative S15 In actions for negligence 312 CALENDAR : Will be considered on motion to change venue 94, 99 Putting cause on the calendar 199 Notes of issue 199 Cause not on calendar cannot be moved 199 Order of the issues on the calendar 200 Preferred causes .' 200 Inherent power of the court to regulate 205 Putting motion on calendar in first judicial district 645 CAPTION : Of judgments 609, 610 Of orders 654 CERTIFICATE : Of judge as to age and expiration of term IB Of disqualification of county judge 76 Of board of law examiners as to qualifications of attorneys 28 Of acknowledgment not conclusive 271 As to right to costs 351 That title came in question on the trial 484 Of good faith of school officer 502, 504 SatitUng a party to increased costs 503 772 General Index. CERTIFICATE— (Continued) •- Page. Exempting a party from costs 504 Of facts charging executor, etc., with costs 515, 516 Of referee in support of application for an allowance of costs 556 Of referee appointed to superintend discovery 193 CHALLENGE : May be dispensed with on trial before a struck jury 136 Defendant cannot challenge a juror on an inquest 233 Either party may challenge trial jurors 339 Classification of challenges 289 To the array 289 For principal cause 240 To the favor 242 Mode of taking and trying challenges 248 Peremptory challenge 246 Waiver of challenge , 248 CHAMBERS : Adjournment of special term to 12 Orders made at chambers 646, 655 CHANCERY : Practice as it existed in chancery not wholly obsolete 48 Referee substituted for master in chancery 75 CHARACrER: Bad character of witness may be shown on cross-examination 259, 282 Evidence of bad character, to impeach witness 280 Party cannot impeach his own witness by showing bad character 383 Sustaining witness by showing good character 283 When such evidence is competent 284 CHARGE : Charging the ]ury 830 Jurors bound by the charge as to the law 830 Duty of thi courc in charging the jury 880 Statement of opinioa as to weight of evidence 331 Statement of impression as to testimony 331 Comments on failure to call a witness 331 Instructions as to the sufficiency of evidence 333 Statement as to the effect of the verdict on costs 833 Requests to charge 333 Court bound to pass upon requests to charge 832 Further requests after written requests have been passed upon 833 Form of a request to charge 383 384 Compliance with requests to charge 333, 334, 335 Correcting the charge 335 Exceptions to the charge and refusals to charge 336 When taken 336 How taken 336, 338 Instructions to jury after they have retired 389, 340 General Index. 773 CIRCUIT: Page. Circuit court abolished and jurisdiction transferred 2 CITY: Costs in action or proceeding by the people for the benefit of. 524 CITY COURT : Of Brooklyn abolished, and jurisdiction transferred 2 Of the City of New York, a court of record,..; 1 Appointment of terms 7 General, trial and special terms 7, 14 Change of place of holding terms 9 J ustices of 14 Appointment and removal of clerk 41 Removal of causes from 78, 79 Of Long Island City, a court of record 1 Of Yonkers, a court of record 1 CLERK : Defined 40 Of the Court of Appeals 40 Of the Appellate Division 41 Of the Supreme Court 41 Of the Court of Claims 41 Of the City Court of the City of New York 41 Books kept by clerks of courts 41 Time of entering and docketing judgments 41 Office hours 41 Liability for wilful neglect of duty 42 Prohibited from practicing law, acting as referee, etc 43, 131 Adjournment of term by , 11 Duties in procuring a special jury 135 Mistake in name of clerk in a subpoena immaterial . , 137 Procuring attendance at court with original record 142 Placing causes on the calendar 199, 208, 212 Drawing jury 385 Entering verdict 343 Cannot change award of costs 510 Must compute statutory allowance of costs 541 Taxation of costs fiSe Powers and duties of clerk on taxation of costs 568 Entry of costs in judgment 574 Fees in civil actions 576 Fees of county clerks 577 Authority for the entry of judgment 595 Duties on entry of judgment by default 603 Entry of judgment 681, 622 Docketing judgment 623, 624, 625 Filing judgment-roll 623 '^'^'^ General Index. CO-DEFENDANTS ; Page. DispositioQ of issues between co-defendants 54 Service of answer upon 54, 55 Relief against ; 55, 588, 589 Judgment may be for or against one or more 588 COMMISSION. (See Deposition) : To examine witness without the State upon interrogatories 162, 168 Form and requisites 168, 169 Execution and return 171 To examine wholly or partly Upon oral questions 172 Open commission. 173 When issued 173 Application for 174 Order for 174 Form of, and proceedings under it 175 By consent 177 Correcting defects in execution 179 Impeaching or discrediting witness examined 274, 277 COMMISSIONER : To take testimony out of the State, must be impartial 169, 181 Proceedings of Commissioners appoiated in partition 448 Proceedings of commissioners on admeasurement of dower 457 Compensation of commissioners 562, 576 COMPETENCY : Of witness examined before trial, objections to 159 Objections to competency, when taken at the trial 287 How taken 288 Waiver of objection 291 COMPUTATION : Reference to make , 430 COMPLAINT : Determines the nature of the action, whether referable or not 69 Determines the place of trial of the action. 93 Proof of service of, in action for divorce 124 Discovery to enable plaintiff to frame complaint 185 Allegations of, deemed admitted by demurrer 213, 216 To be liberally construed on demurrer 213 Principles governing the decision of a demurrer to 214 May be attacked on demurrer to answer or reply 217 Amendments of, after decision sustaining demurrer 220 Motion to dismras for insuflSciency 246 Variance between allegations of the complaint and the proofs 301 Failure to prove the allegations of the complaint 304 Motion to dismiss, after the plaintiff rests 308 General Index. 775 CONCLUSION: Page. No issue raised by denials of conclusions of law 51 Not admitted by demurrer 316 Statement of conclusions of law in decision or report 382, 383 Statement of conclusion of affiant insufficient 639 CONCLUSIVENESS : Of findings of a jury in action in equity 375 Of findings by a referee 401 Of a judgment in ejectment 441 CONDITIONS : Upon granting adjournment or postponement of trial 229 Upon granting a favor on motion 656 C0NFIR51ATI0N • Of report of referee in action to admeasure dower 429 Of report of referee appointed to make computations 432 Of report of referee as to surplus moneys 439 Of report of commissionars to make partition 440 Of report of sale in partition 451 Of report of sale in dower 463 Of report of sale in foreclosure 473 CONSENT : To the trial of a cause at Special Term as a waiver of a jury trial. ... 63 Reference by consent and stipulation 123, 125 Depositions taken by 160 Commission to take testimony may issue upon 177 Order by consent for the taking of testimony without the State 177 To receive a gross sum in lieu of dower 4oS, 460 CONSOLIDATION : Removal of action to Supreme Court for consolidation 80, 101 Where the parties and court is the ssime and the causes of action may be joined , 100 Several actions against joint and several debtors. 101 Of actions brought in behalf of the people 101 Exercise of the power of the court is discretionary 101 Limitation of the power to consolidate actions 101 Practise on motion to consolidate 102 Costs ^ 103 CONSTRUCTION : Of offer of judgment 115, 117 Of pleadings on trial of issue of law 214 On, motion for a nonsuit S47 Of decision or report 400 Of rules of court 48 CONTRIBUTORY NEGLIGENCE : As a ground for nonsuit or dismissal of complaint 313 776 General Index. CONVEYANCE: Page.' Production of original record on the trial 141, 142, 183 Transcript of record, as evidence 183 When admissible as evidence 371 Execution of, in foreclosure 471 CONVICT : Examination of, before trial 150, 155 CONVICTION : May be shown on cross-examination to discredit witness 256, 383 COEONEE: Fees of coroners 584 COEPOEATION : Action by the people to annul, triable by jury 57 Eeference of course upon consent prohibited in certain actions fi7 Place of trial of action against officer for false report 91 Eesidence of corporations 93 Place of trial of actions against 93 Compelling production of books of, by subpoena 141 Compelling production of books of, by order 143 Mode of examining a corporation as a party before trial 146 Eequisites of affidavit to secure examination of 149 i Preference of actions against 202 Costs in actions by the people against 623 Judgment in actions against 616 COERECTION : Of defects in execution of a commission 179 Of a verdict 344 COSTS : Not given in legal actions at conmion law 473 Bight to costs in legal actions depends upon statute 475 In special proceedings must be given by statute 475 Amount fixed by statute even when costs are discretionary 475, 525 Governed by the law in force when the right accrues 479, 535 Legislature may take away, increase or diminish costs 479 Inherent right in the courts to award costs 475 Given by statute need not be awarded by court 479 Court cannot award costs where statute does not , 479 Court cannot diminish amount allowed by statute 479 In excess of statutory allowance cannot be taxed. .... 479 Effect of stipulations as to costs. 479 Code does not furnish the only guide as to the right 476 To the plaintiff as of course on recovery of judgment 477 Actions in which costs follow as of course 477 Prerequisites to plaintiflE's right to costs 478 Plaintiff must have recovered final judgment 478 In real actions triable by jury 480 General Index. 777 COSTS— (Continued) : Pago. In an action to recover real property 480 Wliere the title to real property arises on the pleadings 480-484 "Where the title came in question on the trial 480-484 In an action to recover a chattel 485 In an action where the people are a party 485 In an action for personal injuries 486 In actions against next of kin, legatees, devisees, etc 486 In action for causing death by negligence 487 Where the amount involved exceeds $400 487 Where the action was first brought in justice's court 487 Where money judgment only is demanded 489 Against two or more defendants. 490 To the defendant as of course 490 What determines a defendant's right to costs as of course 490 There must be final judgment recovered 491 The nature of the action determines the right 491 Where the court has no jurisdiction of subject matter 493 Where defendants appear by different attorneys 492 In actions for trespass or for waste 492 When defendants are entitled to separate bill of costs 493, 493 To both parties as of course 493 When a defendant successful in part, not entitled to 494, 495 Defendant must obtain affirmative finding 494 Where several actions are brought upon the same instrument 495 After discontinuance upon answer of title 496 Where the pleadings are changed in the new action 497 Where the defendant, instead of answering, demurs 497 Judgment must be on the question of title 497 After tender has been made 110, 111, 498 After defendant's offer of judgment 116,498 Plaintiff must recover a judgment more favorable than the ofifer. 499 After offer to Jiquidate damages 500 After plaintiff's offer of judgment upjn counterclaim 500 Where the pleadings admit part of plaintiff's claim 107, 501 Against school officers 501 Against municipal corporations 502 Pretentation of claim to chief fiscal officer , 503 Dependent upon fact certified by court or referee 351 Certificate entitling party to increased costs 503 Certificate exempting a party from costs 503, 504 When costs are in the discretion of the court 505 In equity cases generally 505 Action by judgment creditor to set aside conveyance 505 Action to restrain nuisance and for damages 505, 506 Equity suit against an executor 506, 513' Action to admeasure dower 506 Matrimonial actions 506 After an order of interpleader has been made 509 In certain actions for partition 506 ?78 General Index. COSTS— (Continued) : Page. Upon adjournment, motion, or incidental reference 239. 415, 416, 507, 666 Upon interlocutory judgment on demurrer .233, 507 Exercise of the discretion as to award of costs 507 How the discretion is limited and controlled 507 Rules governing the exercise of discretion 507, 510 When and when not awarded to successful party 507, 508 Denied when both parties are in fault 507 Partial success not rewarded 494, 495, 508 In case of unnecessary parties 508 Litigation of unnecessary matteis 509 In case of unnecessary defense 508, 509, 535 Multiplication of UQuec^ssary actions 509 In suit by pubsequent incumbrancer to red^^em 509 Where the recovery does not exceed the relief offered 509 Rule as to two or more defendantj, 492, 510 Must be expressly awarded in equity suits 337, 510 Review of the discretion exercised in awarding costs 511 Against whom awarded and who liable to pay costs 512 In actions by or against executors and administiators 512 In actions by or against a trustee 517 In case of transfer, etc., of cause of action 518 Liability of persons beneficially interested _ 519 In case of infant parties ... 53 1 In an action for partition 506, 523 In an action for dower 506, 523 In action to determine claim to real property 533 In action to recover debt of decedent from legatee, etc 533 In action by sheriff and plaintiff in attachment 523 In action by the people against a corporation 533 In action by the people on relation of private persons 534 In an action by the people for the benefit of a county, etc 534 Costs against the people 524 After notice in foreclosure of no personal claim 525 Amount of costs and items taxable 525 Statute fixes the amount 475,525 What is included in a judgment for costs 526 Costs previously adjusted and paid not included 526 Code provisions as to the rate of costs 526, 529 For proceedings before notice of trial 528 Where there are several defendants served 529 For proceedings after notice and before trial 580 For taking depositions and drawing interrogatories 630 Trial fee, when taxable 531, 533 For a motion for a new trial 534 Term fees, when taxable 196, 534 Increased costs 536 When a defendant is entitled to increased costs 536 Does not extend to disbursements 537 General Index. 779 COSTS— (Continued) : Page. Cannot be recovered in actions in equity 537 To defendant oflBcer in mandamus proceeding 537 Board of Supervisors not "a public ofllcer" 538 Improper case, increased costs follow as of course 538 Costs of several trials 538 Additional allowance by statute. 540 Limited to actions or cases specified by statute 541 When and when not a matter of right 540,541 No application to the court necessary to obtain 541 Additional allowance by the court 543 In what cases authorized 543, 545 In difficult and extraordinary cases 543, 543, 548 In special proceedings 543 When more than one allowance is permissible 544 To whom granted 545, 546 In an action for foreclosure 547 In partition 547 Basis of computation 550 Amount allowed 553 Setting aside taxation to allow party to move for allowance 573 The application for the allowance 354 554 Referee has no power to grant additional allowance 555 Costs on granting application ,, 668 Disbursements. (See Disbursements) : Are included in the term "costs" 557 Taxation of costs 354, 566 Must ordinarily be taxed by the clerk 566 When taxed by a judge or justice .— ... 566 When taxation not required 567 Notice of taxation 567 Taxation without notice and re taxation 567, 568 Length of notice 567 Contents of notice 567 Bill of costs and affidavits to accompany notice 667 Powers and duties of the clerk on taxation 563 Clerk's duties on taxation are ministerial 568 Taxation of allowances by statute or by the court 569 Taxing separate bills of costs « 669 Expense of striking jury cannot be taxed 136 Clerk can allow only legal items 569 Proof of the disbursements claimed 569 Proofs as to witness' fees 570 Proofs as to referee's fees 571 Certificate showing right to costs or increased costs 351, 573 Controverting the proofs of the moving party 573 Objections to allowance of items and exception to rulings 573 Eetaxation and review of taxation 573 Setting aside taxation 573 780 General Index. COSTS— (Continued) : Page. Review upon motion for a new taxation 573 Proceedings before the clerk on new taxation 573 Appeal from judgment as a waiver of motion to retax 573 Erroneous taxation not redressed upon appeal 574 Error in award of costs corrected only by appeal 574 Entry of costs in judgment 574 Notice of entry of judgment before costs finally adjusted, unavailing 687 Motion costs are discretionary 666 Rules governing the exercise of discretion 666 To the party succeeding on the motion 666 Where the party asks for more relief than he is entitled to 666 Costs not asked for in notice of motion 666 On denial of motion, where the notice asks for costs 666, 667 Where relief is granted as a favor 667 Where notice has been countermanded 667 Where irregularity specified has been corrected after notice 667 Unnecesf ary motions 667 Unnecessary opposition to a motion 667 Where the question is a new one , 667 Where the decisions upon the question are conflicting 668 Motion costs must be awarded ..655, 66& Amount of costs of motion 668 Collection of motion costs 669 Attorney's lien for costs , 33 Judgment exclusively for costs, the property of the attorney 34 Stay of proceedings for non-payment of costs 82, 669 On motion to consolidate actions 103 Payment of, as a condition of granting a motion 656 COUNSEL : Absence at the trial as a ground for postponement 326 Counsel fees in action to have marriage declared void — 476 COUNTERCLAIM : Judgment upon, for failure to reply 52 Trial of issues arising upon 54 Right to jury trial of, in equity action 60 Reference of, in non-referable action 69, 70- OSer of judgment where counterclaim exceeds plaintiff's demand 118 COUNTERMAND : Of notice of trial 197 Of notice of motion 636 Withdrawal of offer of judgment 118 COUNTY COURT. (See Coukt) : COUNTY JUDGE : Appointment of time and place of holding court 8 Appointment of building for temporary court house 10 Adjournment of terms. . . 12 General I^DEX. 781 COUNTY JUDGE-(Continued) : Page. Election and term of office 14 Actint; au Surrogate 15 Special county judge 15 The age limit 16 May hold court in any county on request 17 Disqualification 18, 20 Must be a counselor-at-law except in Hamilton County 19 Proceedings when judge is disqualified 31, 76 When prohibited from practicing as an attorney. 36 Appoints crier for court of record 43 Can act as referee only by consent 130 When authorized to tax costs 566 May grant order to show cause 637 When he has jurisdiction to grant orders 618, 649 COURT : Defined 1 Enumeration of courts of record 1 Partial enumeration of courts not of record 2 Creation of inferior local courts authorized 2 Courts recently abolished 2 Transfer of jurisdiction 2 Custody of seals, records, etc. , of former courts .-.. 3 Appeals from inferior local courts »..>. 2 Time and place of holding terms 4 Appointment of terms 5, 7, 8 Change of place of holding lerms 9 Adjournment of terms... 11, 12 Judges or justices 13 Assignment of justices to hold terms 5, 7, 16 Provisions as to powers of judges of appellate courts 17 Disability of jndges 18 Clerks 40 SheriiBE, crier and attendants 43 Stenographers 43 Rules of procedure in courts of record 46 How far governed by usage and precedents 47 Power to make new process and forms of procedure 47 Issues triable by the court 64 Trial of issues of fact by the court 355 Inherent right to award costs 475, 476 The court of appeals 4, 13, 17, 40 liie appellate division of the Supreme Court 5, 13, 17, 41 The Supreme Court 5, 13, 41 The court of claims 7, 14, 41 The city court of the city of New York 7, 14, 41 County court. 3) 14 782 General Index. CREDIBILITY. (See Impeachmbnt) : Page. Of ■witness or question for the jury notwithstanding impeachment.. 275 Of unimpeached witness „ „, 316 CRIME : Challenge for „ 240 Impeaching witness by showing conviction for ..».„.. 259, 283 Impeached witness may testify to his innocence. , 284 CRIMINAL CONVERSATION : Costs to plaintiff of course or recovering judgment for 477 CROSS-EXAMINATION : Of witnesses sworn upon an inquest 233 Of witnesses upon the trial , 254 Party cannot cross-examine his own witnew 257 Object and general scope of the cross-examination 257, 258 To show mistake, misapprehension, interest, relationship or bias. .258, 279 To discredit witness by showing bad character 258, 282 Questions as to conviction for crime 259, 282 As to confinement in prisons, jails, etc 259, 282 "Witness cannot be asked if he has been charged with crime 259 Extent of such examination discretionary with the court . . . .259, 282 To lay foundation for impRachment by other evidence 260, 275 Question as to inconsistent declarations 275, 276 As to genuineness of contradictory written statement 276 As to testimony on former trial 278 Legitimate cross-examination as to the issues 260 How far a party may introduce bis case on 250, 260 Should be confined to matters brought out on direct examination. 260 Effect of cross-examining as to new matter. 260, 275, 283 Whether new matter may be brought in, rests with the court 261 Ria;ht of counsel to cross-examine at length upon the issues 261 Right of court to limit cross-examination upon collateral matter 361 Latitude allowed upon cross-examination 261 Witness should be cross-examined before leaving the stand 261 When commenced should be completed 261,263 Recalling witness for 263 As to competency of an expert before testifying as ti opinion 264 As to grounds of opinion of expert witness 266 Compelling inspection of memoranda used on direct 269 Identifying written instrument on 272 Does not waive exception to admission of illegal evidence 292 Striking out evidence of party for refusal to answer question 296 Striking out direct testimony where no opportunity for .- 396 DAMAGES : Allegations of damage or special damage not issuable 50, 51 Demand of damages in suiss in equity , 60 Offer to liquidate 122, 594 Proof of, on default 235 General Index. 783- DAMAGES— (Continued) : Page. Assessment of 342, 388 Nonsuit is error if the plaintiff is entitled to nominal 310 Want of proof of, in action for death of child through negligence 310 Double, treble, or other increased damages 387, 593, 50i Fixmg damages in replevin 348, 388 In action to recover real property , 349 Rate of damages recoverable 593 In action for causing death through negligence 594 Amendment of complaint on the triwl by increasing demand for 302 Amending complaint by adding averment of special damage 302 DEATH : Of judge before whom a proceeding has been instituted 30 Of attorney before judgment 30, 36 Of client tarminates his attorney's authority 35 Of stenographer who took notes on the trial 44 Of party in action of ejectment 105, 106 Of party before verdict, decision, or report 398 Of party after verdict, etc 398 Of plaintiff in partition pending publication of notice of sale 424 Costs in action for causing death by negligence 487 Bate of damages recoverable in such action 594 DECEDENT : Reference of claim against decedent 66, 616 Costs in action upon ' claim against decedent's estate 513 Claims against, may be prosecuted before notice to present claims 514 Dispensing with notice to creditors to present claims 514 Presentation of claim to executor or administrator 514 Variance between claim presented and complaint 514 Costs in action against devisee for decedent's debt 523 DECISION : Of an issue of law, principles governing 213 When to be rendered and filed 219 Directions as to judgment 219 On trial of issue of fact by the court 382 Must find facts and conclusions of law or state the grounds of decision 382, 383 The findings of fact or conclusions of law 383 Facts must be found to support the conclusions 384 Reporting evidence not equivalent to finding facts 384 Statement of conclusion of fact sufficient 384 Immaterial facts, and facts outside the issues 384 The statement of the grounds of the decision 385 Directing judgment and awarding costs 387 Requisites of decision in particular cases 387 Where increased damages are given by statute 387 In matrimonial actions 388 In ejectment 388, 438, 439 784 General Index. DECISION- (Continued) : Page. In replevin -- ^8° Making and tiling the decision 889 Time of making and filing S89 Renibdy for failure to file SSI* Absence of decision from record on appeal S91 Remedy for defective decision 391 Exceptions to decision 383, 405 Death of party before or after decision 398 Correction cf decision 398 Construction of decision 400 Conclusiveness of findings 401 Beading reported decisions to the jury 329 DECREE. {See Judgment) : DEFAULT : Waiver of jury trial by failure to appear at the trial 62 After denial of motion to postpone the trial 231 Motion to open 231 Proceedings upon default at the trial 333 Defaults and refusals to proceed on a reference 364 Proceedings on default in appearing or pleading in partition 442 Extent of relief granted the plaintiff on judgment by 590 In an action against an infant defendant 598, 599 Judgment by default 603 Proceedings where some of the defendants make default 602 On the hearing of a motion 650 Denial of motion on default of moving party no bar to renewal 663 DEFENDANTS, (See Co-defendants) : Motion by, to change place of trial 90, 91, 97 Right to costs as of course 490 Amount of costs allowed to 529 Judgment may be for or against one or more 588 Relief against each other 589 DEFENSE : Demurrer to a separate defense _ 317 Demurrer to a partial defense 217 DELAY. (See Laches) : DEMAND : That venue be changed to proper county 88, 90, 91, 07 DEMURRER : Issue of law arises only upon demurrer 49, 311 Mode of trial 211 General practice on the trial 212 Principles governing the decision on demurrer 313 As an admission 213, 216, 218 Construction of pleadings on demurrer 313, 216 General Index. 785 DEMURRER-(Continued) : Page. Decision on demurrer to complaint 213 216 To the answer 216 To a separate defense 217 To a partial defense gj^Y Attacking complaint on demurrer to answer 217 Want of capacity to sue 218 For defect of parties 3jg When decision must be rendered and filed 219 Amending or pleading over after demurrer 221 Costs of the trial of the issue of law 233 Additional allowance of costs after decision 545 Isa "defense" within the meaning of the statute 545, 548 AppUoation for judgment after trial of the issue of law 599 DEPOSITION Taking the deposition of a party or witness within the State 144 Nature and scope of the remedy I44 Cases in which a party or witness may be examined before trial. . 145 Where to applyfor the order 146 The application for the order _ _ 146 Requisites of the moving papers 146, 151 How far the order is discretionary 151 When the motion may be denied or vacated if granted 153 Contents of the order I53 Service of the order I55 Vacating the order 156 The oial examination 157 The physicial examination '. 159 Depositions taken within the State upon stipulation 160 Taking the deposition of a witness without the htate 161 The difEerent classes of commissions authorized 161 Letters rogatory 161 Commission to examine witnesses upon interrogatories 163 In what cases issued 163 Power to award commission is strictly statutory 163 May be denied where applicant a fugitive from justice 163 Not granted where application is in bad faith 163 Testimony of a lunatic may be taken 163 Where the application should be made 164 Moving papers . . , 164 Laches as a ground for denying the motion 165, 166 Opposing the motion 165 Order directing that a commission issue 166 Terms upon granting the order . . 166, 167 Directing that interrogatories be framed in foreign language.... 167 Order made upon stipulation 168 The commission 168, 169 The commissioner 169 Settling interrogatories 170, 171 786 General Index. DEPOSITION— (Continued): Page, Objections to interrogatories 171 The execution and return of the commission 171 Commission to examine wholly or partly upon oral questions 173 What facts must be shown upon the application 172 The order 173 Ente) ing order, and settling interrogatories 173 Servjce of notice of time and place of examination 173 Open commission 173 Where issued 173 Not favored by the courts i 171 Application for 174 Order for 174 Form of commission and proceedings thereunder 175 Order directing depositions to be talsen 176 Before whom the deposition may be taken 177 Notice of the time and place of taking deposition 177 Commission or order upon consent 177 Letters rogatory 161, 178 When issued 178 Correcting defects in the execution of a commission 179 Suppressing depositions 179 When the only available remedy 180 Grounds for suppraising a deposition 179, 182 Taken without the Slate may be read in evidence though witness is in court 181, 274 Putting deposition in evid enoe upon the trial 272 Effect of deposition taken before trial as evidence 272 Proof of inability to procure attendance of witness at trial 272 Putting deposition of insane witness in evidence 274 Party not compelled to put entire deposition in evidence 274 Costs allowed for taking deposition and drawing interrogatories. 530 DEVISEES : Costs in action against, to recover debts of decedent 486 Costs in action by, to recover real property 520 Judgment in action against upon debt of decedent 617 DISBARMENT. (See Attorney) : Of attorneys 26, 30 DISBURSEMENTS : Not allowed to prevailing party at common laws 557 Can be taxed only under some provision of statute 557 Cannot generally be recovered if costs cannot 558 Where several actions are brought against defendants who might have been joined 49& Where amount of damages recovered limits amountof costs 558 Where plaintiff recovers costs before, and defendant after offer of judgment. 117, 558 Must be necessarily incurred and reasonable in anKiunt 558 General Index. 787 DISBURSEMENTS-(Continued) . Page. Witness' fees may be t^xed as a disbursement 558 Cannot be taxed unless necessarily paid 558, 559 When fee for attendance is or is not allowed 569, 570 Where witness was not subpoenaed or was not sworn. . .559, 560, 570 In several causes between same parties at same term 560 Where defendants tax separate bills oi costs 560, 571 Where the witness is a party 560 Where the witness is an attorney or county clerk.. „-.. ,... 560 Where the witness was examined abroad 560 Proof required to authorize taxation ^ 570 Amount of fees taxable J38, 585 Expert witnesses ^ 138, 565 Referee's fees taxable as a disbursement ^». ... 561 Amount allowed by statute ,.„., . 674 Fees and expenses in admeasurement of dower „.„.... ^0 Upon sales of real property ......»,. 675 For directing and superintending a discovery 661 Proof required to authorize taxation 571 Sheriff's fees 561 Amount allowed by statute 579 In the city and county of New York 583 Must be taxed on demand before a judge or justice 566 Sums paid for services for which sheriff 's fee might be taxed 565 Sums paid for services for which no fees are given 565 Sums paid for plans and meaeurementa for use on trial 565 Sums paid for telegrams 565 Expense of filing or recording a mortgage in foreclosure ._.. 565 Expense of proving genuineness of a paper „... 565 Clerk's fees ....561 Amount allowed by statute 576 Taxation before a judge upon written demand 566 Stenographer's fees, when taxable 561 Amount - 584 Compensation paid commissioners taking depositions 563 Fess and expenses of commissioners in partition or dower .. 449, 562, 563 Amount 576 Fees paid solicitors for attending examination of witness abroad. . . . 562 Fees for publication 563 Fees for copies of papers 563 Printing expenses 563, 585 Search 563 Prospective chargps 564 Fees of trial jurors 564, 585 DISCONTINUANCE : Upon answer of title costs in new action 496 Extra allowance upon diRcontiuuance before trial 545 ''88 General Index. DISCOVERY : Page. Of books and papers 185 In what cases compelled . , „ 185 Application for the order 186 Moving papers _ 186 No prior demand necessary 187 Requisites of the petition 187, 188 Order to show cause 188 Remedies of the adverse party 189 Motion to vacate the order to show cause 189 Proceedings on return of the order to show cause 190 When the order for a discovery will or will not be granted. .190, 191, 193 Order for discovery not a matter of strict right 191 In actions between partners and kindred cases 191, 193 The order for a discovery or inspection 192 Appointment of referee to superintend 192 Stay of proceedings may be directed 19S In case of books of foreign corporation 193 Entry and service of the order 193 Enforcement of the order 193 Proceedings to punish party for failure to obey order 193 Effect of papers produced under the order 194 DISCRETION : Of the courts in matters of practice 47 When a jury trial is in the discretion of the court 61 The reference of a referable action is discretionary 69 As to staying proceedings in action here where another is pending abroad 85 As to the consolidation of several actions in same court 101 As to severance of an action where part of claim is admitted 107 As to ordering examination before trial 151 As to granting order that an open commission issue 173, 175 As to granting an order for discovery 191 Right to open and close a legal right not resting in discretion 349 Of the court as to permitting plaintiff to reopen his case 253 As to striking out evidence received without objection 293 As to reopening the case after submission to referee 366 As to mode of trial in an equity cause 373 As to setting aside report of referee 405 When costs are in the discretion of the court 505 Rules governing exercise of discretion in awarding costs 507 Review of discretion exercised in awarding costs 51 1 As to granting additional allowance of costs 543 As to the extent of cross-examination outside of the issues. . .359, 261, 383 As to limiting the number of witnesses as to character. 382 DISMISSAL: Of the complaint for insufHciency 246 On a trial before a referee 363 For failure to prove any cause of action 807, 808 General Index. 789 DISMISSAL— (Continned) : Page. For failure to prove the cause of action alleged 311 In actions for negligence ; . 312 When to move 315 Who should move to dismiss 316 Motion how made 3 17 Exceptions 3I8 DKQDALIFiCATION : Of judges 17, 18, 20 Of county judge 15, I8, 76, 77 Of jurors 237, 240 DIVORCE. (See Matrimonial Actions) : Trial by jury of the issue of adultery 58, 59 Referee in, must be selected by the court 67, 133 Proof of service of summons and complaint 124 Costs in action for 506 DOCKET-BOOK : Transcript of Justice's docket as evidence 182 Clerk must keep docket-book 624 Docketing of judgments in 624, 625 Is w holly distinct from judgment-book 635 What judgments must be docketed 625, 626 Effect of docketing a judgment 625 DOCUMENTS : Compelling attendance of witness with 140, 142 Notice to produce, at the trial 183 Discovery and inspection of 185 Procuring documentary evidence for the trial 182 Introduction of documentary evidence on the trial 270 DOUBLE COSTS. (See Costs) : When given by statute 586 DOWER : Action for, triable by jury 56, 457 Preference in actions for 302, 304 Reference to admeasure dower 438 Oath of referee 438 Proceedings upon the reference 428 Report of referee 429 Setting aside or confirming report 429 Fees and expenses 430 Setting off dower in partition 448 Protecting right of dower on sale in partition 453 Release of inchoate right of dower 454 Action for 457 Place of trial of action for dower 457 Proceedings where no consent is filed to accept gm-a sum 457 790 General Index. D'OWKR— (Continued) : Page. Admeasurement by referee or commissioners 428, 457, 460 Proceedings upon consent to receive gross sum 45b Requisites of consent 458 Service of copy and notice of filing - 459 Application for leave to pay gross sum 459 Ascertaining value of dower right 459 Ascertaining whether distinct parcel may be set off 460 Stipulation to take a distinct parcel in lieu of gross sum 460 Reference as to liens 418, 461 Judgment for sale 460, 461 Who may not purch&3£ at the sale 427 Conveyance, disposition of proceeds and report 461 Confirmation of the sale 46J Costs in action to admeasure dower 506, 523 EASEMENT : Claim of easement is a claim of title 483 EJECTMENT : Trial by jury a matter of right 56, 437 Severing the action where defendant's claim in severalty 105 Where distinct parcels descend to different persons on death of party ., 105 Where different person s succeed to right to or liability for damages 105 Application of general provisions of the Code as to death of party 103 Verdict in ejectment , 849, 439 Report or decision in ejectment. 388, 439 Recovery of rents and profits or value of use and occupation. 439 Allowance to defendant for permanent improvements 439 Conclusiveness of judgment after trial of issue of fact 440 Conclusiveness of judgment other than upon such trial 441 Successive new trials allowed 440 First new trial a matter of strict right on payment of costs, etc. . . 440 Second new trial a matter for discretion of the court 441 New trial where judgment was not rendered upon trial of issue of fact. 441 Time to apply for in such case where party was an infant, etc 441 Waiver of right to new trial 441 Possession of the property pending result of new trial 443 Defenses allowed upon new trial 443 Restitution to defendant on final judgment in his favor 44J Provision as to new trial not applicable where summons was served by publication 443 Action for non-payment of rent 487 Notice of intention to re-enter 437 Dismissal of complaint on payment of rent in arrear and costs. . . 438 Verdict report or decision must fix amount of rent in arrear 438 In case of default 438 Tudgment mu-t state amount of rent in arrear 43? General Index. 791 EJECTMENT— (Continued) : Page. Proceedings after judgment to regain poasesaion 488, 439 Setting off profits against rent occurring after judgment 439 Proviaions as to new trials not applicable to this action 443 Costs in action by vendor for default in payment of purchase money. 491 Where plaintiff succeeds upon one of several counts 495 To plaintiff as of course on recovery of judgment 477, 480 To defendant as of course 490 Action for equitable relief cannot be changed to, by amendment on the trial 866 ELECTION : Compelling plaintiff in ejectment to elect against which defendant he will proceed, , 105 To continue action where part of claim is admitted 107, 501 ENTRY : Of costs in judgment 574 Of judgment 631 Lapse of time after decision will not affect regularity 621 On report of referee 621 Upon a general verdict 632 Signing and filing judgment constitutes the entry 633 Omission of clerk to sign judgment renders it irregular 623 Proceedings by clerk on entry of judgment 623 Notice of entry of judgment 626 When notice of entry is premature and Ineffectual 637 Of orders , 657 When essential .....'. 657,658 With what clerk entered ...... 658, 660 When clerk is prohibited from entering order 658 Duty of counsel to see that order is entered 659 Compelling entry of order 659 Entry of orders nunc pro tunc 669, 660 Failure of clerk to enter will not prejudice right of party 660 Order must be entered as made 660 Time of entry of orders made after final judgment 660 Of order for removal to change place of trial 80 Of order staying proceedings 87 Of order of reference. 131, 132 Order for production of paper on trial need not be entered 143 EQUITY : • Joinder of equitable and legal causes of action as affecting right to jury trial • ...-.59, 63 Demand for past damages for trespass in action to restrain continu- ance • = 60 Jury trial in equity cases discretionary 61 Demand of legal relief where complaint shows right to equitable relief 215 Mode of taking testimony same as in cases at law. 379 793 General Index. EQUITY— (Continued) : Page. Costs in, discretionary 505, 507, 509, 511 Increased costs not given in equity suits 537 Distinction between decree in equity and judgment at law 633 ESTOPPEL : By failure to move for a non suit 810 By failure to request that the facts Ic submitted to the jury 332 EVIDENCE : Procuring documentary evidence for use on the trial 18^ General rules as to the order of introducing evidence 251 On the part of the party holding the affirmative 251, 352 In rebuttal 253 Outlines of the practice in presenting evidence to the jury 254 Memoranda 26& Photographs 269 Introduction of documentary evidence 270, 373 Testimony preliminary to the introduction of documents 271 Of the execution of instruments 271 =»-Copies of records and papers filed 373 Conveyances and records of conveyances 271 Books of account 272 Depositions 273, 374 To impeach or discredit witness 274, 385 Objections to the admission or rejection of evidence 386, 868 Exceptions to rulings upon, questions of evidence 290, 868 Waiver of objections to evidence 391 Motions to strike out or disregard evidence 293 Variance between the pleadings and proofs 301 Amending pleadings to conform to the evidence given 301 Burden of proving contributory negligence 312 Discussing the evidence in the charge to the jury 330 EXAMINATION. (See Deposition) : Of witnesses or party within the State before trial 144, 157, 159 The oral examination '. 157 The physical examination 159 Of witnesses without the State 161 Under a commission, upon interrogatories 162 Under a commission, upon oral questions 173 Under an open commission : 173 Under an order directing depositions to be taken 176 Under letters rogatory 178 Of witnesses upon the trial 351 General rules as to the order of introducing evidence 251 General outline of the practice in presenting evidence. 254 The direct examination, cross-examination, and re-direct . . 254 The direct examination 256 Leading questions 256, 257 Cross-examining party's own witness 357 General Index. 793 EXAMINATION— See Deposition— (Continued) t Page. Should be confined to the afi&rmative case 257 Should exhaust the affirmative 252 The cross-examination 257 (See Cross-examination) ; The re-direct examination 252 Scope and object of the re-direct 262, 263 Should be confined to matter gone into on cross-examination 263 What is rebutting evidence 252 Of expert witnesses 203 When evidence of experts is admissible 263, 365 When evidence of experts is Inadmissible 263, 264 Showing that the witness is qualified to speak 264 Objections to competency, etc 264 Must have personal knowledge of the facts to give a direct opirion 865 Hypothetical questions 265, 266 Investigating grounds of opinion 266 Limiting number of expert witnesses 266 Use of memoranda on the examination 266 Impeaching or discrediting witnesses 275 (See Impeachment) : Objections to the admission or rejection of evidence 286 (See Objections) : Exceptions to rulings upon admission or rejection of evidence. 290 (See Exception) : Motions to strike out or disregard evidence 293 Power to strike out evidence received without objection 293 Striking out irresponsive answers 294 Evidence cannot be stricken out because not decisive 295 Judge may correct a ruling by striking out evidence 295 Lack of moral sense In the witness 295 Motion hoiv made 295 Striking out the evidence of a party for refusal to answer 296 Striking out direct examination of witness 396 Instructing jury to disregard evidence 296, 332 EXCEPTION : To decision on trial of issue of law not necessary 232 To rulings of the ceurt upon an inquest 233 To rulings of the court as to admission or rejection of evidence 290 How taken 290 When 1 aken 290 Should be directed to the precise ruling objected to , 290 Waiver of exception to ruling upon evidence 292 Waiver by implication 292 To denial of motion for a non-suit 318 To refusal to submit facts to jury 319 794 General Index. EXCEPTION— (Continued) : Page. To a non-suit , ^...,„ 319 To dismisBal of complaint 319 To direction of a verdict 322, 323 Review on exception to direction of a verdict 323 To rulings upon evidence prevents direction of verdict subject to opinion of the court 325 To direction of verdict subject to opinion of the court 326 To denial of right to open and close 828 To refusal of court to check improper comments in summing up .... 329 To charge or refusal to chargd 336-838 To instructions to jury after they have retired 34.0 Review of exceptions taken upon the trial by appeal „ . . 350 Motion for a new trial upon exceptions ,. 351 To decision or report upon the trial of the issues 382, 383, 405, 40B How taken 406, 407 When taken 406 General exception 408 Effect of insufficient exceptions 408 To report of referee other than upon the issues 413 To reservation of decision upon questions of evidence 367 To be made a part of the judgment roll 623 EXECUTION : Of a commission 171 Correcting defects in execution of commission 179 Of written instruments, how proved 271, 272 Against trustee personally for costs 518 To collect motion costs 669 EXECUTOR : Preference of actions by or against ^ 201, 202 Certificate entitling a party to costs against executor 352, 504 Costs in equity against an executor are discretionary 506 Costs in actions by or against 512 EXPERTS : Examination of expert witnesses... 203 Proper cases for expert testimony 263, 265 Showing competency of 264 When hypothetical questions mast be put 265, 266 What facts may be assumed in such questions 265 Only legal fees of can be taxed 138, 565 Limiting number of expert witnesses. ... , 266 Convenience of, not considered on motion to change venue 9? EXTRA ALLOWANCE. (See Costs) ; When authorized 542 FACTS : Reference. to report 74 Review of facts after jury trial 350 General Index. 795 FACTS— (Ck)ntinued) : Page. Findings of fact after trial by court or referee 383 Review of faow after trial by court or referee 883, 383, 406 FALSE IMPRISONMENT : Costs of course in action for 477 Limitation of costs to damages 478 FAVOR; Ciiallenge to the favor 243 Conditions imposed on granting ,.. 656, 657 FEES. (See Disbursements) : Of witnesses 138, 558, 585 Of experts 138, 565 Of referees generally 561, 574 On admeasurement of dower 430 For directing and superintending a discovery 661 Upon sales of real property 575 Stipulations aa to 362 Loss of, for delay in making report 393 Of sheriff 579, 583 Taxation of, on demand 566 Of coroner 584 For oaths and acknowledgments 576 Of surveyors and commissioners in partition or dower 449, 576 Of clerks 576 Of county clerks 577 Of stenographers • 584 Of trial jurors 585 Of printers 585 Trial fee 531 Term fee 534 Treble damages for taking illegal fees 594 PILING : Decision of the court 389, 390 Report of referee 392, 413 Mortgage or assignment in foreclosure 471 Notice of pendency of the action 461 Judgment roll 633 Papers read upon a motion 657 Of papers not f olioed prohibited 643 J'INDINGS OF FACT. (See Repoet ; Decision) : Requests for, obsolete 383 May or may not be inserted in report or decision 383, 383 Statement of grounds of decision may take the place of 383 One of such modes of procedure must be adopted 383 Requisites of 383,885 Compelling compliance with requirements of the Code 399 Presumptions as to findings in support of judgment 4U0 796 General Ikdex. FINDINGS OF FACT— See Report ; Decision— (Coutinued): Page, Construction on appeal .400, 401 Ambiguous or ccmtradictory flndinga ... 401 Conclusiveness. . . . ►^ ». »»» » 401 , 40^ Review of ^ 406 FOLIOING : Pleadings, depositions, affidavits, case, etc., must be folioed 643 Penalty for failure to folio 643 FORECLOSURE : Action to foreclose a mortgage 462 Is not for the recovery of money only 110 Is a proceeding in rem ; „ . . 110 Is not triable as of right by a jury „..463 Must be tried by the court or referred 462 Who may be made defendant in 466 Practice in, to entry of judgment, substantially as in other actions 462 Failure of defendant to appear on the trial 462 Procedure where some of defendants make default or admit 462 Disposing of the issues raised by the pleadings by trial 462 Reference to compute amount due, etc 430, 463 Where some of the defendants are infants or absentees 463 Filing notice of pendency of action 463 Application for judgment of foreclosure and sale 463 Procedure where defendant's answer presents a questi nable defense. 463 Procedure where answer alleges payments which plaintiff admits 106 Reference to compute the amount due, etc. 430, 463 Proceedings on such reference 430 Judgment on confirmation of the report 463, 464 Notice of pendency of action. 464 When and where filed 464 Proof of filing, on application for judgment » 464 Offer of judgment in foreclosure 114 Defendant cannot make and plead a tender 110 Dismissal of complaint on payment of amount due and costs 464 Tender by junior mortgagee, and compelling aseignment of mortgage 464 Application for judgment 465, 599 Judgment 465^ Directions as to sale 465, 467 Description of mortgaged premises 466 Directions as to disposition of proceeds of sale 465 Awarding payment of deficiency 466 Directions as to surplus moneys, 466, 467 Directions where mortgage debt is not all due 467 Protecting subsequent lienors 4^7 Provision as to payment of prior mortgage 466, 468 Is final for purpose of review and in other respects is interlocutory 470 Stay of proceedings upon payment of debt, costs and expenses. .81, 86, 470^ Procedure by prior mortgagee to obtain payment 468 When a prior mortgagee is or is not affected by the judgment. . . .468, 46^ General Index. 797 FORECLOSURE— (Continued ): Page. Defendant's title and interest barred from date of sale and convey- ance 469 , 470 Sale in foreclosure 422,471 Proceedings on sale by a referee , 423 DefectiTe publication of notice of sale 424 Referee or guardian may not be purchasers 427 Filing or recording mortgage or assignment 471 Executing conveyance to the purchaser 471, 472 Effect of the conveyance 472 Disposition of the proceeds of sale 472 Payment and disposition of surplus moneys 433, 466, 472, 473 Report of sale 473 Confirmation of the report of sale , 478 Costs upon defending after notice of no personal claim 525 Additional allovpance of costs by statute 553 Additional allowance by the court 542, 547, 550 FOREIGN JURY : Proceedings to obtain a foreign jury 186 FORMS, (See Index of Forms) : GUARDIANS : Entitled to be indemnified for expenses for counsel fees 475 Ad litem for infant plaintiff 521 , Liability for costs 521, 522 Remedy of guardian against the estate of the plaintiff ». . . . 522 HABEAS CORPUS : To bring prisoner before the court to testify ^ ».^... 139 IsaStatewrit ^... 189 Application for .»^. . . 139 Allowance of 139 Form of the writ .^...- 139 Service of the writ »-. 140 Remanding prisoner 140 HEARING : Appointment of time and place of hearing 195 Notice of hearing 196 Of motions 650 HEIRS : Costs in action for debt of decedent 617 HYPOTHETICAL QUESTIONS : On examination of experts 265 IMPEACHMENT: Modes of impeaching witnesses 274 By matters drawn out on cross-examination 259 Collateral matter drawn out on cross-examination conclusive 275 798 General Index. IMPEACHMENT- (Continued) : Page . Proof of acts inconsistent with the testimony of the witness 375 Proof of oral statements made out of court 275, 277, 278- Proof of written statements inconsistent with testimony 276 Laying foundation for impeaching testimony .275, 276, 277 Contradictory testimony on a former trial 278 Evidence of interest, hostility or bias 278 Evidence of bad character 259, 280, 282 Showing reputation of the witness in his own community 380 Of party's own witness not permitted 282, 288 Counteracting impeaching evidence 283, 385 IMPROVEMENTS : Allowance of compensation for, in partition 454, 457 INCREASED COSTS. (See Costs) : INFANT : Api>ointment of guardian for infant plaintiff 531 Liability of guardian for costs 521, 522 Eemedy of guardian against estate of infant 522 Cannot consent to a reference 67 Disability of infancy extends time for new trial in ejectment 441 Authority from surrogate to bring action for partition 445 Reference to ascertain interest of, in partition 421, 442 Compensation for equality in partition 450 Investment of proceeds of sale for benefit of infant 452 Reference in foreclosure in case of infant party 430 Judgment by default agaiust 465, 598, 606 INQUEST : When taken. 233 How taken 233 Rights of defendant on an inquest 333 On failure of defendant in foreclosure to appear at trial 462 INSPECTION. (See Discovery) : Of books and papers 185 INTEREST : Adding Interest to recovery after offer of judgment 117, 499 Showing interest to discredit witness 274, 378 From decedent's death to be added to recovery for negligent killing. . 594 Disqualifies a judge from sitting as such 18 Of ofBcer summoning .jury not a ground of challenge to array 389 INTERLOCUTORY JUDGMENT. (See Judgment) : INTERPLEADER : Order of, changes legal to equitable action 509 Costs where order of interpleader has been made 509 General Index. 799' INTERROGATORIES. (See Deposition) : Page. Commission to examine witnestes upon inteirogatories 162 Setting interrogatories 170 178 Mubt be annexed to commission Commission to examine partly upon 172 Furnishing copies of, to witness in advance of examination 181 Costs for drawing 530 IRREGULARITY .- Must be specified in notice of motion 634 In order to show cause 637 ISSQES: The issues in a civil action 49 Are of law or fact 49 When not contained in the pleadings 49 Of law arise on demurrer 49 When an issue of fact arises 49 Allegations which raise no issue 50, 51 Disposition of issues raised by the pleadings 53 Judgment without trial of issues 53, 53 Of law triable by court or referee 53, 311 . Order of trial of issues of law and fact 53 Trial of issues raised by counterclaim 54 Directing a separate trial of the issues 54 Determination of iasues between co-defendants 54, 56 When jury trial of the issues is a right 56 When jury trial of the issues is discretionary 61 What issues are triable by the court 64 Reference of the issues C5 Reference of claims against decedents 66 Place of trial of issues of law ' 91 Place of trial of issues of fact 87, 93, 99 Order for trial of issues of fact by a jury 53, 118 Stating and settlement of the issues for trial 119, 120 Trial of issues of law by the court or a referee 211 Principles governing the decision of an issue of law 213 Decision or report on the trial of an issue of law 219 Trial of issues of fact by a jury 285 Trial of issues of fact by the court or referee 355 Note of issue 199, 204, 333 JOINDER : Of demand for both legal and equitable relief as affecting right to jury trial 57, 59, 60 JOINT DEBTORS: Judgment against, where all were not served 589, 590 Effect of such judgment 590 Bight of party not served to come in and defend after judgment 590 Judgment against, by default 603 SOO General Index. JUDGE ! Page. Of tho Court of Appeals, term of ■•• ^° Justices of the appellate division ^" Justices of the supreme court -^'^ Of the court of claims. .' ^^ Justices of the city court of the city of New York 1* Of the county court 1^ Surrogates 15 Special county judge and surrogate 15 The age limit of the terms of judges 15 Filing certificate of age 16 Assignments to hold terms 5, 7, 16 Justice of supreme court may hold court in any county 16 Limitations of powers of judges of appellate courts 16, 17 Assignment of judges who have passed the age limit 17 Disabilities of judges 18 Interest 18, 19 Relationship , 18 Cannot practice as attorney 19 Cannot receive fees 19 Cannot act as referee 19, 130 Proceedings where judge is disqualified 20 Continuance of proceedings before another judge 30 Settlement of case and exceptions after expiration of term 21 ■When county judge is disqualified. 21 When surrogate is disqualified 23 Power to make rules of procedure 48 Mistake in name of judge does not invalidate subpoena 137 Transfer of motion, where judge holding term is unable to hear it 651 Who has power to make an order has power to vacate or modify 664 Has no power to review order made by another judge 664, 665 Justice at special term cannot reverse order of another special term. . 666 Justice of appellate division cannot receive a verdict 344 Taxation of costs by 566 JUDGMENT : Meaning of the word " judgment " 587 Interlocutory and final 587 May be for or against any of the parties 588 May grant defendant affirmative relief 588 Against one or more defendants where a several judgment is proper. 589 For or against a married woman 589 The relief which defendants may have against each other 589 In favor of one plaintiff and against the other 589 Against joint debtors where part only are summoned 589 Extent and nature of the relief granted 590 In case of default 590 Limited to relief demanded in complaint 590 Where an answer is interposed 598 Not controlled by prayer for relief but by facts alleged 592 Where the facte alleged entitle plaintiff to equitable relief only. . 592 General Index. 801 njDGMENT— iContinued) : Page. Rate of damages recoverable 593 Treble damages 593, 594 In action for negligently causing death 594 Where offer to liquidate damages has been accepted 594 Authority for the entry of judgment 595, 597 Whf-re all the issues have been tried by the court or referee. . .387, 595 Where there were is ues of both law and fact 595 Upon the trial of an issue of law or where nonsuit is granted. .219, 595 Where the issues were tued by a jury 596 Where an offer of judgment has been accepted 596 Application for judgment 596 Upon a verdict subject to opinion of the court 326, 596 After affirmance ou appeal 596 After trial of issues of both law and fact 597 After jury trial of specific questions of fa'-t 367, 378, 597 After reference of specific questions of fact 381 , 597 lu foreclosure 465 Where an interlocutory judgment is directed 598 Upon the pleadings 52 Must be made upon notice at special term 598 Delay in applying in case of infant's default 598 In mortgage foreclosure 599 Withdrawal of application 599 Proceedings upon the hearing of an application for judgment 599 After deoi'-ion of an if sue of law 599 In i-aatrimonial actions . • 601 Proceedings where some of the defendants make default 602 Code provisions as to judgment by default 603 Proceedings on judgment by default 603 Settlement of the judgment 608 Form and contents of the judgment 609 Title 609 Caption 610 Recitals 610 The mandatory part 610 Entry of costs in the judgment 574 In action to determine claims to lands 611 In action for partition - 449,451 In an action for waste • 613 In action for foreclosure 465 In other real actions 613 In replevin 613 In action to forclose a lien upon a chattel 614 In matrimonial actions 614 In actions against corporations 616 In action against heirs, next of kin, legatees, devisees 617 In action to establish or impeach a wiU 618 In a judgment creditor's action 620 51 803 General Index. JtTDGMENT— (Continued) : Page. Entry of judgment and proceeding thereon 621 After a trial by the court 631 After trial by a referee 621 After trial by jury 622 After offer of judgment 624 Clerk's signature to judgment constitutes entry 622 Omission of clerk to sign judgment , . ... 623 Must be entered in ofiBce hours 41, 633 Recording judgment in judgment book 622 Filing judgment-roll 633, 624 Distinction between decree in equity and judgment at law 633 Failure to lile judgment-roll 624, 635 Docketing judgments 634 Eflfect of docketing or omission to docket judgment 625 Notice of the entry of judgment 626 By whom given 626 Requisites of the notice 637 When to be given to be effectual 637 Upon an admitted demand 104 Upon offer 112 After ten years ceases to be a lien on real estate 485 Interlocutory judgment in partition 446 JUDGMENT- BOOK : Recording judgment in 633 JUDGMENT CREDITOR: Costs discretionary in action to set aside conveyance 505 Basis for extra allowance in such suit 551 Final judgment in judgment creditor's action 620, 631 Liability for costs in action by receiver 520 JUDGMENT-ROLL : Clerk must file, on entering judgment 638, 634 Contents 623,634 By whom made up 628 Need not be signed by the clerk 634 Effect of failure to file 634, 625 Notice of entry of judgment premature before filing 627 JUDICIAL DEPARTMENT : Division of the state into : 4 JUDICIAL DISTRICTS: Division of the State into 4 Alterations of 4 JURAT : Omission of jurat from copy aflSdavit served 841 General Index. 803 JURORS. (See Jubt) : Page. Qualification of trial jurors generally 235 In the city and county of New York 336 In the county of Kings 237 Disqualification of 237 Exemptions from service 238 Excusing jurors from serving 238 Challenging 239 Afladavits of, to impeach their verdict inadmissible 345 Fees of trial jurors. 564, 588 JURY. (See Juhoes) : Order for the trial of question of fact by 118 Proceedings under the order 121 Procuring a special jury 183 ' Procuring a foreign jury 136 Calliiig and impaneling the jury 335 Challenges 239 (See Challenge) : Charging the jury ^ 380 (See Charge) : Deliberation of the jury 338 Taking papers to the jury room 338 Communications between judge and jury 339 Interference with the deliberations of the jury 340 Mode of arriving at a verdict 341 Keeping jury together to induce agreement 341 Assessment of damages by the jury 342 Bringing in a sealed verdict 343 The verdict on a jury trial of the action 343 Correction of the verdict 344 Polling the jury 346 Rendering general verdict on submission of specific questions 348 Paying the jury 564 Trial of specific questions of fact by a jury 373 In equity cases 373 Proceedings on the trial 373 Conclusiveness of the findings of the jury 375 JURY TRIAL. (See Trial by Jury) : When a matter of right 56 When in the discretion of the court 61 Waiver of the right to jury trial 63 LACHES : Must be excused on motion to change venue 94 A ground for denying a reference 126 In claiming a jury trial Is fatal 64 A ground for denying a commission 165, 16fi 804 General Index. i LEADING QUESTIONS : Page. Not permitted as a rule on direct examination .»..„.„ 256 Exceptions to the rule „ 256, 257 LEAVE OF COURT : Staying proceedings for failure to obtain leave to sue „ . . . 85 Infant cannot bring partition without leave of surrogate. 44^ To renew a motion 662 LEGATEES : Apportionment of costs and recovery on judgment against.. ..„.. .. 617 LETTERS ROGATORY : Distinction between letters rogatory and ordinary commission 161 From what courts issued 178 How executed and returned 179 LIBEL : Consolidation of actions for libel 102 Struck jury in action for 134 Preference of action for libel 202 Costs in actions for libel 477, 478 LICENSE : Allegation of, in answer, does not raise claim of title 482 LIEN: Of attorneys 33, 35 Reference to ascertain liens 418 In partition or dower 418, 419, 445, 461 Inquiry as to liens on reference as to surplus moneys 435 Lien of judgment ceases at expiration of ten years 435 Discharge of liens out of proceeds of sale in partition 454 Nature of actions to enforce a lien 491 Costs in action to foreclose a lien upon a chattel 614 LIS PENDENS : Notice of, to be filed before judgment in foreclosure 464 Affidavit or certiSeate of filing 464 M4UCE : Of witness may be shown to discredit him 258 MALICIOUS PROSECUTION : Costs in actions for 477, 478 MANDAMUS: Reference of the cause 203 MARRIED WOMAN ; Judgments for or against 589 MATRIMONIAL ACTIO .SS; Jury trial of action for divorce 58 Reference by consent, not a matter of right. 67 General Index. 805 MATRIMONIAL ACTIONS— (Continued) : Page Selecting referee in such actions 67, 135 Proof of service of summons in 124 Order of refereace in action for divorce , 131 Report of referee in 388 Testimony must accompany report 388, 595 Judgment in, must be rendered by the court. 388. 595 Power of the court to award expenses and counsel fees to wife . . . 476, 506 Coats may be in favor or against either party 506 Application for confirmation of report and for judgment 601 Powers and duties of the court on the application 601 Judgment in 614 MEMORANDA : Use of memoranda on the trial 266 MERITS : Affidavitof : 89, 96 On application to postpone the trial ; 227 Inquest for want of 232, 238 Dismissal for failure of proof not a dismissal "upon the merits" 320 MISDEMEANOR : Showing conviction for, to discredit witness 283 MORTGAGE. (See Foreclosure): MOTION: Is an application for an order 629 Enumerated and non-enumerated 639 Notice of motion 630 Ex parte applications 630 When required 630, 631 By defendant to co-defendant 681 To whom given 681 Remedy of party entitled to notice 633 Length of notice 633 Form and contents of the notice 683 Notice of a counter-motion 633 For what day of the term 633 Statement of grounds of motion 633 Relief demanded 634 Signature by attorney of record or counsel 634 Service of the notice 634 Proof of service 636 Countermand of notice 636 Order to show cause 636 When and how granted 636, 637 A substitute for a notice of motion 637 On what papers granted 630, 637 Where returnable 637 Must specify irregularity 637 Cannot be demanded as a right 637 806 General Index. MOTION— (Continued) : Page. Motion papers 638 Affidavits, (See AprroAViTS) 638 Folioing motion papers 643 Paper and ink prescribed by statute 643 Service of motion papers 643 On enumerated motions 644 At what court or term a motion may be heard 645 In the first judicial district , 6^5 In other districts 646 Agreements between counsel as to place of hearing 647 Special term held at same time and place as trial term 647 Contested motions 647, 648 What judges may make orders 648 Ex parte orders 648 County judges 648 Special county judge 649 Opposing the motion 650 On the moving papers 620 On counter affidavits 650 Affidavit of merits 650 Proceedings on the hearing 650 Default 650 Inability of judge to hear 651 Preliminary objections 651 The argument „ 652 Bight to open or close 652 Burden of proof , 65^ What motion p3i)ers may be used 653, 653 Eeference to determine facts 653 Limit as to number of counsel and time 654 The order. (See Order) 654 General requisites as to form , 654 Entry 657 Service 660 Condition or terms imposed on granting 656, 657 Compliance with conditions 656, 697 Belief from terms imposed 656 Filing motion papers 657 Where filed 653, 659, 660 tndoreement of papers filed 659 Service of affidavit with order to show cause 661 Notice of entry of order 661 Renewal of motions 661 Statutory provisions as to second applications 661 Leave to renew 662 Second motion for samo relief while prior motion is undetermined 663 Notice for leave to renew and for renewal 663 Benewal upon new facts without leave 663 Reviewing or vacating orders 664 General Index. 807 MOaiON— (Continued) : Page. Rehearingof motions 665 Costs of motions 666 Costs are discretionary 666 Rules as to the exercise of discretion 666, 667 Must be awarded , 668 Amount 668 How collected. 669 Stay for non-payment 669 For substitution of attorneys 86 To remove an action from the county court 77 To remove an action from the city court 79 For removal and consolidation of actions 81, 101, 102 Non-payment of motion costs 83 For a stay of proceedings 85 To change venue to proper county. 88, 90 To change venue to secure impartial trial '. 93 To change venue for convenience of witness 94, 97 To ee?er an action. 106, 107 For trial of questions of fact by a jury 119 For judgmens after trial by jury in equity case 132 To refer matrimonial actions 124 For a compulsory reference 126 For a struck jury 184 For a foreign jury 136 For a writ of habeas corpus ad testificandum 189 For the production of original records at the trial 142 For the examination of a party or witness before trial 146 To vacate order for examination before trial 152, 156 For a commission to take testimony without the State 164 For a commission to examine on oral questions 173 For an open commission 174 For the suppression of a deposition 179 For a discovery or inspection of books or papers 186 To vacate order for a discovery 189 To punish disobedience to an order for discovery 193 To obtain a preference on the calendar 204 For judgment after decision of demurrer 222 To postpone a trial 228 To set aside an inquest. 231 To dismiss the complaint for insufficiency. ... 246 To strike out or disregard evidence 293 To amend on the trial 297 To compel a party to elect 3Q6 For a nonsuit or dismisal of complaint 246, 806, 307, 308, 317 For the direction of a verdict 321 For judgment on verdict subjoct to opinion of court. 326 For a new trial, after trial by jury 350, 374, 376 For award of costs against executor or administrator 853 For an additional allowance 354, 542, 554 ^08 General Index. MOTION— (Continued): Page. By stranger to the action to be made a party 373 To set aside verdict 376 For judgment after trial of specific questiona by a jury 376 For a new hearing after reference of specific questions 380, 415 To tet aside report of referee when filed too late 398 To set aside report of referee for misconduct 402 For appointment of referee on interlocutory reference 411 To set aside report in action for dower 423 For confirmation of report In action for dower 429 For appointment of referee on default in foreclosure 430 For judgment after default in foreclosure 465 For a I eference as to surplus moneys 433 For a new trfal in ejectment. 440 For confirmation of report of commissioners in partition 419 For confirmaiion of sale and for judgment in partition 451 For stay of proceedings upon the judgment in foreclosure 470 For retaxation of costs 572 For judgment 596 MUNICIPAL CORPORATIONS : Presentment of claim against, to chief fiscal officer before suit. 352, 502 Certificate of presentment of claim 352 Failure to present claim does not entitle defendant to costs 491 Costs against 502 Who is the chief fiscal officer 503 Costs in action by the people for the benefit of county, city, etc 524 NATIONAL BANK : May be sued in state courts 92 N'EGLIGENCE : Failure of proof of special pecuniary damage 310 Proof of absence of contributory negligence 312, 313 Nonsuit in actions for 312 Presumptions as to contributory negligence 313 Question of negligence ordinarily for the jury 313, 314 Acts constituting contributory negligence 318, 314 NEW HEARING : After trial of specific questions of fact by referee , 380 VIolion for 415 NEW TRIAL : Motion for, necessary to review the facts after jury trial. , 350 Motion for new trial upon the minutes 381 Motion for, after trial of specific questions by jury 374 Motion for, for failure to file decision 390 In ejectment - 440 NEXT OF KIN : Costs in actions against 486 523 Judgment in actions against 617 General Indfx. 80^ NON-RESIDENT : p^gg Examination of before trial jfiO Examination of non-resident witness on commission 161 NONSUIT : Voluntary nonsuit on a trial by jury 306 307 On a trial before a referee 3g3 Motion for a nonsuit 307 Where no cause of action is proven 308 When nontuit is proper 308, 309 To refuse to nonsuit in a proper case is error 309^ When the motion should be denied 309 310 Effect of failure to move for a nonsuit 310 Where the alleged cause of action has not been proven 311 In actions for negligence.. . , 313^ 313 314 When to move . , 3I5, By -whom made 31g Hovir made , 3IY Submitting questions to jury before deciding motion 318, 324 Proceedings on denial of the motion 318, 32!j Proceedings vs^hen nonsuit is granted 3I9 Eflfect of the nonsuit 320 On the hearing before a referee 363 Before any evidence is taken 364 NOTE OF ISSUE : When to be filed with the clerk 199 Failure to file 199, 238 Filing new note of issue for successive terms 199 Inserting a claim for preference in 204 NOTICE : Of motion generally , , 630 (See Motion): Of trial 196, 360 When to be served 196 When premature 196 All the defendants entitled to notice must be served 197 Form of notice 197 Service by mail 196, 197 Countermanding the notice 197 Renewing the notice tor another term 198 Failure to notice cause for trial 198, 233 Waiver of jury trial by noticing cause at a non-jury term 62 Proof of service of, on inquest 232 To produce papers at the trial 183 ■ Of sale 422 Of postponement of sale 425 Of claim to surplus moneys 433 Of pendency of action 464 To f-reditors of decedent to present claims „ 513, 5I4 510 General Index. NOTICE— (Continued) : Page. Of no persoBal claim 525 Of taxation of costs 567 Of time and place of an asBessment by the clerk on default 607 Of time and place of application to court for judgment by default 607 Written demand of notice of execution of reference, etc 607 Of the entry ot judgment 636 Of payment of money into court after tender Ill Of acceptance of offer of judgment 16 Of time when jury -will be stiuck 135 Of abandonment of part of claim in replevin 194 Of appointment by referee of time and place of hearing 195 Of hearing before referee 196 Of election to end a reference 394 3SUISANCE: Action for, triable by jury 56 Costs in action to restrain, and for damages 506 Final judgment may award damages, or removal, or both 613 OATH: Of trial juror , ....^ 235 Of referee 361, 380, 428 Omission of referee to be sworn 361, 862 Waiver of oath of referee 363 Filing oath on reference to admeasure dower 428 Fees for oaths and acknowledgments 576 Before whom taken 641 OfBcial oath of attorneys 24 OBJECTIONS : What objections should be taken on the examination before trial.. 159, 374 What objections may be reserved until the trial , 374 What objections should be taken on the settlement of interrogatories. 171 What objections may be reserved until the deposition is offered. .171, 274 By the defendant to evidence offered upon an inquest 23d To the competency of an expert 264 To the admission or rejection of evidence on the trial 286, 368 To the competency of a witness, when taken 287 To evidence, should be taken when offered 286, 387 Should be spjciSc . 288 When a general objection is effectual 288 Effect of basing an objection upon tho wrong ground 288, 289 To evidence competent as to one party only ... 289 There can be no exception without an objection 290 An objection properly taken need not be repeated. 291 Waiver of objections 391, 292, 393 Effect of a failure to object through inadvertence 293, 894 That the evidence offered does not support the pleadings 303 That the cause of action proved is not the cause alleged 805 To improper remarks of counsel summing up 329 General Index. 811 OBJECTIONS— ;Coiitinued) : Paqre. To the iiUoxvance of improper item? in bill of costs 573 Preliaiinary objection upon the hearing of a motion 651 To the introduction of new matter on the hearing 652 OFE'ER : To liquidate damages 112, 500 Of judgmf-nt 113 when authorized 113 The form and substance of the oiTer. 114 Acceptauce of the offer 116 Effect of non-acceptance 116 Amending, withdrawing or renewing the offer 117 Should not be commented on to the jury 389 Effect of the offer upon the award of costs 498, 499, 50 Additional allowance after accsptance of offi^r 545 Entry of judgment on accepted offer 624 OFFICER : Struck jury in case of libel of public officer 134 Provisions as to costs against school otfioer or supervisor 353, 501 Provisions as to costs against public offcers 353,536, 537 Who is to be deemed the chief fiscal offic .-r of a corporation 503 Lia bility to treble damages for taking illegal fees 694 OPENING : The right to open and close 348, 327 bpeningCaae to tbe jury 350 The right to open and close the argument of a motion. 653 OPINION : Of experts, when admissible 263, 265 Contrary to testimony of witness, inadmissible to discredit him 271 Statement of opinion of the court in charging jury 337 Formed by a juror, a ground of challenge 243 ORDER: General requisites as to form and substance 654 Title and caption 654, 655 Special term and chamber orders 655 Recitals of appearances and papers read on the motion 655 Settling order 655 Date of order 655 Provisions as to costs 655 Conditions or terms of granting 656, 657 Entry of orders 657 Compelling entry of orders . 659 Entry of orders nunc pro tunc .,., 659 Must be entered as made 660 Service of the order 660 Reviewing or vacating orders 664 Removing a cause to another court .77. 78 813 General Index. ORDER- (Continued) : P.ige. Staying proceeding 85 Changing place of trial lOO For the severance of an action 107, 1 09 Of reference 131 For a struck jury '34 For the production of original records on the trial 143 For the production of books of account or of a corporation 143 For the examination of party or witness before trial 153 That a commission issue to examine foreign witnesses upon interroga- tories 166 For a commission to examine party upon oral questions 172, 173 For an open commission 174 Directing depositions to be taken 176 For commission, by consent 177, 178 Suppressing deposition 179, 180 To show cause why Inspeoticm or discovery should not be had 188 For discovery or inspection 193 To show cause , 636 By whom granted and where returnable 636, 637 PARTIES : Must produce books and papers under a subpcerui duces tecum 140 Examination of a party before trial 145, 146, 148, "^l.H, 158, 159 May waive any provision of law in their favor 160 May make a rule of evidence for their own case 293 Evidence of party may be stricken out for refusal to answer 296 Amendments as to parties on the trial 297, 365 Bringing in necessary parties on a reference 365, 370 Bringing in new parties in equitable actions 369 Bill in equity never dismissed for want of 369 Compelling the bringing in of new parties 370 Mode of bringing in new parties 370. 371 Plaintiff in lepal actions not compelled to bring In new parties . . .369, 370 Application to be made a party 372 Liability for costs of unnecessary parties 508 PARTITION : Action for partition 442 Issues of fact triable by jury 57, 443 Title or interest of a party may be controverted 55, 442 Disposition of issues between co-defendants 55, 56, 442 Proceedings upon default or where a party is an iiifant 443, 603 Determining whether there shall be actual partition or sale 143 When actual partition will be directed 443 When a sale will be directed 443 When neither parlitioQ or sale can be directed 444 Reference as to liens 418, 445 Proceedings upon the reference 418 The interlocutory judgment. 446 Proceedings of commissioners appointed to make partition 448 General Index. 8ii5 PARTITION— (Contiuued) : Prge. Confirmation of report of commi-ssioners 449 Compensation of commissioners 563 Final judgment after partition 449 Proceedings where the interlocutory judgment directs a sate. ... , . . . 451 Final judgment confirming the sale ., 451 Direction as to costs . 523 Disposition of the proceeds of sale 451 Where a party ertitled to part of the proceeds is an infant 453 Where a defendant is unknown or has been served by put'licalion 453 In case of dower interest. 453 In case of a tenant for life or for years 453 Protecting inchoate right of dower 453, 454 Kequiring security before distributing proceeds of sale 454 Payment of taxes, assessments and water rates 454 Compensation for improvements and repairs 454 Notice of motion for stay of sale under judgment 86 Consolidation of actions for partition 101 Preference on the calendar 803, 204 Search showing absence of liens 209 Prohibition against action to partition part of lands owned in common 506 Additional allowance of costs by statute 540 Additional allowance by the court 547 PAYMENT : Dismissal of action for foreclosure upon payment 464 Stay of proceedings under judgment of foreclosure upon payment. . . 470 Payments constitute no part of an account 488 Payment in)o court after refusal to except tender Ill, 113 PENALTY: Action for statutory penalty triable by jury 58 Liability for costs of person prosecuting in name of another 520 PEOPLE : Costs in actions where the people are a party 485, 528, 584 PERSONAL INJURIES; Physical examination of the plaintiif in action for damages for 145, 154, 159 PETITION: For writ of habeas corpus ad testificandum 139 For a discovery or inspection of booljs, etc., 186 For a stay of procfedings under a judgment of forclosure 470 Reference to petitions in orders granted thereon 655 PHOTOGRAPHS : As evidence. ...o 269 PHYSICIAN : CoTjducting physicial examination of a plaintiff 159 Testimony as to result of examination I59 814 General Index. PLACE : **g«- AllegadonB as to not issuaUo 51 PLACE OF TRIAL: Removal of action to another court to change '8 Stay of proceedings for purxwse of moving to change 86 Changing place of trial 8'^ To the proper county 88 The county in which an action is properly triable S7 To secure an impartial trial - 93 For the convenience of witnesses 9i Proceedings after change 100 PLEADINGS : Issues arising upon the pleadicgs 49,50, 51 Mode of disposing of the issues raised by the plesdingij 52 Service of answer demanding relief as between co-dofejdants 54, 35 Should be made a part of moving papers for a refereui-e 137 Construction of pleadings upon demurrer 314, 817 Referring to pleadings in summing up 829 Amendmi'nt of the pleadings on the trial 897 Amendment as to parties 297 Inserting allegation material to the case 300 Variances between pleadings and proof 301 Amendment of pleading to conform to the proof 301 Amendment on trial before a referee 365 After discontinuance on answer of title 498, 497 POLLS : Challenge to the poUs .... 239 POSTPONEMENT. (See Adjoubnment). (Jrounds for 325 Application for 226 Opposing 228 Granting discretionary 239 Terms 239, 230 Proceedings when granted 230 When denied 331 Of sale by referee 424 Party procuring postponement of trial not entitled to term fee 535 PREFERRED CAUSES : Code provisions as to 300 Proceedings to obtain a preference 203 In counties of Kings, New York, Erie, etc 205 Court has inherent right to regulate its own calendar 205 PRESUMPTIONS : No presumption of negligence or its absence .^ . . .. — 313 In support of a judgment rendered after trial by court 405 General Index. 81& ' PRINCIPAL CAUSE: Page. Challenge for „ 240 PRINTING : Expenses of, taxable as a disbursement 563 Fees of printers 585 PRISONER : Examination of, before trial 150, 155 Habeas corpus to bring up a prisoner to testify 138 PUBLICATION : Of appointment of terms 5, 6, 8 Of notice of sale 422 Of postponement of sale , 425 Fees for . 563, 585 QUO WARRANTO : Triable by jury , 68 REAL PROPERTY : Verdict in action to determine claims to 850 Costs in such actions 523 Costs in real actions , 480 When claim of title to, arises on the pleadings 480 Whatever grows upon and is annexed to the freehold is 483 Easement is an interest in lands , 483 Additional allowance of costs by statute 540 Additional allowance by the court 542 Does not embrace leasehold interest 544 Certificate that title to, came in question 572 Referee's fees upon sales of 575 Judgment in action to determine claim to lands , 611 RE- ARGUMENT : Of motions 666 REBUTTAL : Evidence in rebuttal defined 253, 253 Reopening case in rebuttal 252 RE CALL : Of witness for farther examination 253, 262 RECEIVER : Preference of causes brought by or against ^ ...... ^ 201 Appointment by final or interlocutory judgment ^» 620 Compelling conveyance, etc., to >.....»...„ 620 RECITALS : In judgments ^ 609, 610 In affidavits ' 638 In orders 655- 816 General Index. RECORD : Page. RequiriDg production of original records 141, 142 Traniscripts of, as evidence 183 Recording mortgages and assignments on foreclosure 565 REDEMPTION : Costs in action to redeem 509 REFEREE. (See Rbperekoe): Issue of law may be tried by 53, 64 Reference of the issues 65, 123 Selection of a referee by the parties 65, 66, 123 Refusal of referee to serve 66 Appointment to try disputed claim against decedent 66 When the court must designate the referee 67, 123 Who may be appointed referee 130 Who are disqualified 130 Should be served with certified copy of order of reference 132 Appointment of referee to superintend discovery 193 Appointment of referee to take testimony in prison or jail 155 Examination of witness or party before trial , 158 Has no power to issue a commission 164 Appointment of time and place of hearing 195 Trial of issue of law by a referee 212 Power to award costs 223 Trial of issues of fact by a referee 355 Oath of referee 361 Powers of referees on a reference of all the issues 360 Has all the power of the court oa a trial without a jury 360 Report stands as the decision of the court 361, 282 May award or deny costs when costs are discretionary 36 1 Cannot grant additional allowance 361, 553 May direct judgment on the pleadings 363 May grant nonsuit or dismissal of the complaint 363 May grant adjournments of the trial 364 May impose conditions and terms on adjournment 364 May dismiss complaint for failure to appear or proceed 364 May allow amendments of the summons or pleadings 365 May re-open case after submission 866 Should make his rulings before the case is submitted 367 Compelling the bringing in of new parties 369 Ceases on delivery of report 398 Trial of specific questions of fact by 397 Report of referee on trial of the whole issues of fact 302 Findings of fact and conclusions of law Statement of grounds of decision 385 Directing judgment and awarding costs 887, 309 Making and signing report 392 Filing or delivery of report 303 Failure to file or deliver the report 394 General Index. 817 REFEREE— See Refeeence— (Continued) ; Page. Correction of the report 398 Construction of the report , 400 Setting aside the report 403 Appointment of referee on references incidental to trial of the issues 410 Bringing on the hearing 412 Proceedings on the hearing 412 Filing or delivery of the report 413 On reference to take and state an account. 416 On reference to ascertain liens 418, 445 On reference as to title, intprest, etc 420 On reference to make sales 422 On reference to admeasure dower 428 On reference to make computations 430 On reference as to surplus moneys 433 To take a deposition for use upon a motion 642 Sales by referees 425 Mode of sale 425 Report of sale 427 Admeasurement of dower by referees 428 Certificate of referee on motion for additional allowance 556 Fees of referees 561, 574 Upon a trial of the issues 574 Where the services were rendered in two actions, 561 Stipulations as to fees 363, 565 Upon sales of real property 575 For superintending a discovery 575 Affidavit in support of charge for fees „,. 571 REFERENCE : To hear and determine the amount due attorney on motion for substi- tution 87 Of the issues, by consent 65,122 Mode of giving consent to refer 125 Power of attorney to stipulate to refer 81, 123 Stipulation to refer 65 Entry of order of reference upon the stipulation 65, 123 Stipulation limited to a particular referee 66 Appointment by the court on stipulation 124 Appointment by the court where referee refuses to serve 66 Of a claim against the estate of a decedent 66 When reference by consent is not a legal right 67, 123 Compulsory reference of the issues, v^hen authorized 67 Examination of a long account necessary to authorize 68 The account must be the immediate object of the suit or ground of the defense 68 The examination must be necessarily involved upon the trial 68 Cannot be ordered if there are difficult questions of law 68 Actions in tort not referable vrithout consent 69 Character of action determined by complaint 69 B2 818 Genkral Index. EEFERBNCE— (Continued) : Page. Where a counter-claim involves a long account 69, 70 Where some of the issues involve a long account 70, 73 Joinder of referable and non-referable causes of action 70 What is a long account 70 Of attorney's claim for services 70, 71 Where the action is upon an account stated 72 Application for a compulsory reference of the issues 126 When premature 126 EfiEect of laches 126 Must be made to the court at Special Term on notice 126 Motion papers 127 Opposing the motion 128 Who may be appointed referee .... 130 The order of reference 131 Where the reference is by consent 131 When the action is for divorce 131 Entry of the order and filing of motion papers 132 Service of order on adverse party 132 Certified copy for the referee 132 Appeal from the order 132 Of issues of law 311, 213 Trial of issues of fact by a referee 355, 360 General outlines of practice on reference of the issues 360 Powers of the referee upon the trial 360 Oath of the referee 361 Failure of referee to be sworn 361 Stipulations as to fees 362, 565 Judgment for the plaintiflE on the pleadings 363 Nonsuit or dismissal of the complaint 363 Adjournments of the trial 364 Dismissal of complaint for failure to appear or proceed 364 Amendments on the trial 365 Re-opening case after submission 366 Rulings made after submission 367 Objections to the admission of evidence 368 Bringing in new parties 860 Requests for findings are obsolete 882 Report of the referee 882 (See Repoet): The findings of fact or conclusions of law 383 The statement of the grounds of the decision 385 Directing the judgment and awarding costs 387 Requisites of the report in particular cases 387 Making, signing, filing or delivering the report 392 Terminating the reference for failure to file or deliver the report 394 Death of party before or after report 398 Correction of the report '. . 898 Construction of the report 400 Conclusiveness of the findings of the referee - 401 General Index. 8] 9 fiEFERENCE— (Continued) : Page. Review of the findings of fact or rulings on the trial 382, 402 Setting aside the report for possible improper influence 402 Practice on the application to set aside the report 404 Exceptions to the report 405 Exceptions to the report which states grounds of decision only . 382, 406 Exceptions to report containing findings of fact, etc 406 Insufiioient exceptions 408 Fees of the referee 561, 574 Judgment on the report 595 Judgment in matrimonial actions 601 Reference of a part x>t the issues, motion to refer 133 Judgment 597 Reference of issues remaining after special findings by a jury 378 Judgment 597 Trial of specific questions of fact by a referee, 379 Scope and character of the reference 74, 379 Practice on the reference , 380 Motion for a new hearing „, 380 Disposition of the remaining issues 381 Application for judgment 381, 597 Interlocutory and incidental references generally 410 Compulsory reference on motion of the court 410 Motion to refer 411 Bringing the matter referred to a hearing 412 Proceedings upon the hearing 412 Filing or delivery of the report 413 Exceptions to the report 413 Motion for a new hearing 415 Costs 415 Reference to take and state an account 416 Practice on the reference 416, 417, 41 8 Reference to ascertain liens 418, 445 Notice of lienor to prove his lien ... 419 Proceedings on the hearing 420 Reference as to title, interest, etc 420 Proceedings on the hearing 421 Reference to make sales 422 (See Sales): Reference to admeasure dower 428 Oath of referee 428 Proceedings upon the reference 428 Report 429 Setting aside or confirming report 429 Fees and expenses 430 Reference to make computations, etc 430, 463 Appointment of the referee 430 Proceedings on the reference 431 Report -^ 482 820 General Index. REFERENCE— (Continued) : Page. Reference as to surplus moneys 433 Application for the reference .• 433 Bringing the matter to a hearing 434 Proceedings upon the reference 435 Keport and exceptions thereto 436 Confirmation of the report 436 Reference to ascertain the value of a right of dower 459 To ascertain whether a distinct parcel may be set off 460 Reference of disputed claim against decedent 66, 516 Reference to settle issues for jury trial 120 Reference to settle a judgment 608, 609 Reference to take deposition of witness for use on a motion 643 Reference to determine a question of fact on a motion 653 Service of an order of reference made on notice 660 REGISTRATION: Of attorneys , 25 RE-HEARING : Of motion 665 RELATIONSHIP : Of judge to a party disqualifies him absolutely 18 Of juror to party „ 241 RELEVANCY : Objections to evidence as irrelevant 289 REMOVAL : Of the cause to another court 76 Where the county judge is disqualified 76 To change the plea of trial 78 For the purpose of consolidation 80, 101 RENEWAL ; Of motions 661 RENT: Action to recover possession of real property for non-payment of. ... . 437 REPAIRS : Compensation for improvements and repairs in partition »... 454 REPLEVIN : Triable by jury 5q Service of notice of abandonment of part of claim 194 Verdict, report, or decision in 348, 388 Costs of course in 477, 485 Amount of costs in 477, 485 Costs where both parties are successful in part 495 Judgment in - 613 General Index. S31 REPORT : Psge. Of referee on reference of issues remaining after jury trial 378 On a reference of specific questions of fact 380 On a reference of all the issues , 382 The finding of fact or c Juclusions of law 383 The statement of the grounds of the decision 385 Directions for judgment and award of costs 387 Where increased damages are given by statute 387 In matrimonial actions 388 In ejectment 388 In replevin 888 Making, signing, filing or delivering - - 393 . Referee not bound to deliver, until his fees are paid 394 Must be filed before entry of judgment 394 Terminating the reference for failure to file or deliver 394 Death of party before report 398 Correction of the report 398 Construction of the report.- 400 Presumptions in support of judgment 40O, 401 Contradictory findings 401 Ambiguous findings 401 Facts not found negatived by implication 401 The whole report must be construed as an entirety 401 Conclusiveness of the findings 401 Upon conflicting evidence on the facts 401 Setting aside the report 403 Upon suspicion of improper influence 403 Practice upon the application to set aside 404 Exceptions to the report 405 Upon an interlocutory reference 413 Ux>on a reference as to liens 420, 461 Upon a reference as to title, interest, etc 421 Of sale by a referee 427, 461, 473 Upon a reference to admeasure dower 429 Upon a reference to make computations 432 Upon a reference as to surplus moneys 436 In au action to recover real property for non-payment of rent 438 In ejectment 439 REPUTATION : Proof of, to impeach a witness 280 REQUEST : That actions be consolidated 102 That case be submitted to the jury 318, 322 To charge 332 For findings, obsolete 382 RESIDENCE : Of corporations 92 Stating residence of witness as on motion to change venue 95 Slating residence of attorney, party and witness on application for examination before trial 140, 147 823 General Index, EETAXATION. (See Costs) : Page. EETURN : Of commission to take depositions >. , 171 To writ of ftofteos corpus ad testicandum. 140 RULES : Governing admission of attorneys published in session laws. . „ 23 Of practice must be consistent with the Code 48 Have the force and effect of statutes 48 Disregard of rules 48, 86, 554 Construction of rules of court 48 Stay of proceedings notwithstanding rule 86 Statutory remedy cannot be taken away by rule of court 554 SALES : By referees .... 422 Security may be required for proper application of proceeds 422 Notice of sale 422 Postponements 424 Mode of sale 425 Who may not purchase 427 Report of sale 427, 451 When sale wiU be adjudged instead of actual partition 443 When no sale can be ordered in partition 444 In actions for partition 45i In actions for dower 461 In foreclosure 471 Fees of referees upon sales of real property ^ 575 SEAL: Omission of a seal or use of the wrong eeal generally unimportant 137 Upon writ of habeas corpus ad testificandum 139 Upon a commission essential to its validity 169 SEARCH : Duty of custodian of records to make searches 183 Value of a search in partition 209 Expense of, a recognized disbursement 563 SECURITY : Staying proceedings for failure to give security for costs 82 By referees making sales 453 SEDUCTION : Costs in actions for 477 SEPARATION. (See Matrimonial Actions): SERVICE : Of answer on co-defemdants 55, 56 Of an offer of judgment 115 Of summons in action for divorce 124 Of orders of reference. 132 General Index. 823 SERVICE— (Continued) : Page. Of subpoenas 138, 141, 142, 143 Of writ of Jiabeas corpus. 140 Of order for production of original records 142, 143 Of order for examination before triaL 155 Of notice to produce papers 184 Of notice of abandonment of part of claim in replevin 194 Of notice of trial or hearing 196 Of notice terminating a reference 397 Of notice of exceptions to report or decision 406 Of notice of flUng consent to receive gross sum in lieu of dower 459 Of notice of no personal claim 625 Of taxation or retaxation of costs 567 Of entry of judgment 636 Of notice of motion and motion papers , 684, 643 Of orders generally 660 Of ex parte orders, 660 Of orders to bring a party into contempt 661 SETTLEMENT : Of issues to be submitted to a jury , 120 Of interrogatories 170 Of judgments 608, 609 Additional allowance at half rates on 540. SEVERANCE : Incase of admitted claim 52, 104, 106, 501 Where there are both issues of law and fact 104 In case of several defendants 104, 603 In partition , 104 In ejectment, 105, 107 SHERIFF : Duties of, in respect to the sitting of courts 43 Adjournment of court on failure of justice to attend 11 Duties on striking a jury 136 Preference of actions against 203 Fees ' 5^9 Taxing eherifiE's fees 566 SLANDER : Preference of action on the calendar 203 Variance between pleadings and proof 303 Costs 477 SPECIAL COUNTY JUDGE : Election of • 15 Must act when county judge disqualified 76 •Possesses all the powers of a county judge out of court 649 SPECIAL DAMAGE: Amending complaint on trial by alleging 303 Inaction by administrator for negligence causing deaths 310 834 General Index. SPECIAL JURY : Page. Proceedings to procure a special jury 133 SPECIAL PROCEEDING: Changing place of trial of by stipulation 10 Cnange of time and place of holding term -10, 13 Disability of officer before whom instituted 30, 31 Vacancy or change in office of judge 31 For the enforcement of statutory lien of attorney 34 Attorney's lien extended so as to include 33 Costs of, not inherent but a statutory right 475 Additional allowance by the court in 543 SPECLIL TERM. (See Courts) : SPECIAL VERDICT : Defined §47 When authorized , ' 347 Must be in writing, filed and entered in the minutes 347 Controls when inconsistent with general verdict 347 Requisites of ^ 347 STAY OF PROCEEDINGS : On application for removal of a cause ,„ 77, 79 For failure to obey an order 81 In foreclosure on payment of debt, interest, cost, etc 83, 470 For non-payment of coats or failure to give security for costs 82 Where other actions are pending for the same cause 84 On the issuing of a commission 167 Pending an appeal 85 On application for change of venue 89 On death of attorney 85 Oq application for a discovery 188 Where party withholds material written ei'idence 85 Where action is brought without leave of court 85 Practice on motion for 85 By what judge granted 86 STENOGRAPHER : An officer of the court „ 43 Oath of office 43 Duties of - .43, 44 Transcripts of hisnotea. 44, 45 Stipulations for the employment o F, on a reference 33, 563 Ft 63 of, as a taxable disbursement 561, 563 Amount of fees S84 STIPULATION : Authoritv of an attorney to stipulate 31, 32 Must be in writing 38 Oral stipulations acted upon 39 Made orally in open court or on trial before a referee 39 General Index. 825 STIPULATION- (Continned) : Page. Limiting stipulation as to time, occasioii or purpose 39 Relieving a party from a stipulation 39, 40 To refer 65, 66, 128, 125, 130 To take an examination before trial 160 Tor a commission to take testimony 177 As to fees of referees 363 On appeal to Court of Appeals as a bar to new trial in ejectment 441 To tax co=ts not allowed bylaw is invalid 479 That neither party shall have costs 479 Silence as to costs in stipulation for judgment 479 STRUCK JURY : Proceedings to obtain special or struck jury 133 SUBPCENA: Maj be served in any part of the State „ . . 137 Form and requisites 137 Service 1 38, 141 Duces tecum, 140, 142, 143, 144 When failure to serve, will defeat application to postpone trial 226 SUBSCRIPTION : Of offer of judgment 115 Of acceptance of the order , 116 Of judgments, by clerk 622 Of judgment-roll 624 0£ affidavits 640 Of the officer before whom an affidavit was taken 641 SUBSTITUTION : Of attorneys 35 Of parties in ejectment 105, 106 SUMMING UP ! On a jury trial 327 SUMMONS : Service of, in action for divorce, etc 124 SUPPRESSION : Of depositions 179 SUPREME COURT. (See Coubt:) SURPLUS MOKEY: Musi be paid into court 433, 466, 472 Reference to ascertain rights and priorities 483 Application for the reference 483 Hearing on the reference, how brought on 434 Proceedings upon the heating 435 Report of referee and proceedings thereunder 486 826 General Index. SURPRISE : Page. Party has no right to be surprised by evidence within the iasoes .... 306 SURROGATE: Term of office >..> ^ 15 Special surrogate ^.... 15 Age limit ....„ 16 Cannot take fees , 19 Prohibited from practicing as attorney 26 Cannot act as referee 26, 130 SURVEYOR : Feesof » 576 TAXATION. (See Costs): Of costs ^ ^...._^» ...^. ...... 354, 566 TENANT IN COMMON : Compensation for improvements and repairs made by .^„.... 454 TENDER : After suit hKnight.-. ...-». ».^ ..-.-.^,..»»..».^.,..„„.,..,»,.^.-.....- 109 When authorized ...^... _._„_.....-. ..>. 110 When and how made. .._ ..._....... 110 Effect of the tender ., ...„ Ill Of money due for rent wifli interest and costs.. ..^. 438 Costs after tender „^ .._.. 498 TERMS: Time and place of holding terms of court „ 4 Of court of appeals , 4 Of the appellate division .......>». 5 Appointment of special and trial terms 5 Trial terms of the supreme court ^ 6 Extraordinary special or trial terms „... 7 Of the court of claims 7 Of the city court of the city of New York 7 Of the county court 8 Change of place of holding terms 9, 10 Adjournment of terms , 11, 13 At which a motion may be heard 645, 646 Conditions or terms of granting a favor........ 656 Term fees 534 TITLE : Of writ of Aabeiis corprM 140 Of the cause in notice of sale....... 434 Of affidavits ...„ 638 Of orders 654 Reference as to title „ 420 Costs, as affected by claim of title 480, 505 Costs after discontinuance on answer of 496 General Index. 827 TRANSCEIPT : Page. Of records, as evidence 183, 183 TRANSFERS : Of cause of action, liability for costs , » 518 TRESPASS : Costs in actions to recover damages for 481, 483, 492, 496, 497 TRIAL. (See Repkrenoe : Tbial by Jury : Trial by the Court^): Defined 53 Of issues raised by the pleadings 52 Of issues between co-defendants 54 Changing place of trial 87 Procuring a separate trial , 104 Notice of trial 196, 360 Of issues of law by the court or referee 211 Of issues of fact by the court or referee 355 Of issues of fact by a jury 235 When trial by jury is a matter of right 56 When the mode of trial is a matter of discretion 61 Order for the trial of specific questions by jury 118 Of specific questions of fact by a jury 373 Of specific questions of fact by a referee 379 Motion for a new trial 350, 374 Trial fee , 531 TRIAL BY THE COURT-ISSUES OP LAW : Where tried 211 Putting cause on the calendar and bringing on the hearing 212 Furnishing pleadings for the court , , 212 The argument 213 The decision and the principles governing it 313-218 Directions as to the judgment to be entered 219 Time limit for rendering and filing decision 219 Filing decision and entering judgment 221 Costs 223 TRIAL BY THE COURT— ISSUES OP FACT : Outlines of practice on the trial 355-359 Objections and exceptions taken on the trial 368 Bringing in new parties 369-372 Submitting questions of fact to a jury 373 ConclusiYeness of the verdict or findings 121, 122, 375 Setting aside the verdict and granting new trial 374 Disregarding the verdict and makiag independent findings. . .376, 377 Proceedings subsequent to the verdict 376 Sending questions of fact to a referee 379 Proceedings upon the reference 380 Proceedings subsequent to the reference 381 8^8 General Index. TRIAL BY THE COURT— ISSUES OF FACT— (Continued) : Page. Decision of the court • • ^^^ Statement of facts found and conclusions of law 382, 383- Statement of grounds of decision 383, 385 Directing judgment and awarding costs 387 Where increased damages are given by statute 387 Where there are both issues of law and fact 387 In ejectment 388 In replevin 388 Making and filing the decision 389 Remedy for failure to file decision 390 Remedy for defective decision 391 Death of party before decision 398 Correcting the decision 398 Construction of the decision 400 Exceptions to the decision 405 TRIAL BY JURY : When a matter of right 56 When in the discretion of the court 61 Waiver of the right to a jury trial 62 When obtainable only on application to the court 56 Order for the trial of questions of fact by a jury 118 "When discretionary and when an absolute right 119, 120 Proceedings to obtain the order 119^ Time of serving notice of motion 119 Settlement of the issues 120 Amendment of issues at trial term 120 Party not concluded by denial of motion 121 Proceedings subsequfnt to the order 121 Conclusiveness of the verdict. 121 Procuring a special jury 133 Application for the order.. . , 134 The order 134 Pioceedings under the order 135 Foreign jury 136 Application to postpone a jury trial 225 Grounds for a postponement 225 The motion to postpone 226 Motion papers 227 Opposing the motion. 228 Decision of the motion 229 Proceedings under the order 230 Proceedings where the motion is denied 23 1 Taking an inquest 232 Proceedings upon default 233 Calling and empaneling a jury 235 Qualifications and exemptions of trial jurors 235 Qualifications of jurors in the city and county of New York 236 Qualifications of jurors in the county of Kings 237 General Index. 829 TRIAL BY JURY-(Continued) : Page. Disqualification of jurors 237 Exemption from service as iurors 238 Excusing jurors from serTlng 238 Challenges 239 To the array 239 For principal cause 240 To the favor 242 Mode of taking and trying challenges 24 1 Peremptory challenge 246 Waiver of challenge 246 Motion to dismiss thii complaint before testimony is given 246 The right to open and close 248 Opening the case to the jury 250 General rules as to the order of introducing evidence 251 General outline of the practice in presenting evidence 254 The direct examination 256 The cross-examination - 357 The re-direct examination 262 Examination of expert witnesses 263 Use of memoranda 266 Photographs as evidence 269 Introduction of documentary evidence 270 Impeaching or discrediting witnesses 274 Evidence as to acts done or statements made out of court. 275 Contradictory testimony on a former trial 278 Evidence of interest, hostility or bias 278 Evidence of bad character 280 Impeaching a party's own witness 282 Counteracting impeaching evidence 283 Commitment of perjured witnesses 236 Objections to the admission or rejection of evidence 286 When taken 287 How taken 288 Exceptions to rulings upon the admission of evidence 290 Waiver of objections and exceptions 291 Motions to strike out or disregard evidence 293 Variances and amendments 297 Amendments as to parties 297 Inserting al egations material to the case 300 Variance between pleadings and proof 301 Failure of proof 304 Motion to compel either party to elect 306 Voluntary nonsuit 306 Withdrawing a juror 307 Motion for a nonsuit or dismissal of the complaint 307 When no cause of action is proven 308 When the alleged cause of action has not been proven 311 In actions for negligence 313 When to move 315 830 General Index. TRIAL BY JURY— (Continued) : Page Motion, by whom made 31& Motion, how made 317 EflEeot of a motion for a nonsuit 318 Exception to refusal to nonsuit 318 Exception to nonsuit 319 Request to submit the facts to the jury 819 Effect of a iKHisuit 320 Directing a verdict 320 Judgment in the appellate court 324 Directing a verdict subject to opinion of the court 825 Summing up 327 Charging the jury 830 Requests to charge 332 Correcting the charge 335 Exceptions to charge and to refusals to charge 336 Deliberation of the jury 338 Taking papers to the jury room 338 Communications between judge and jury 339 Interference with the deliberations of the jury 340 Mode of arriving at a verdict 341 Keeping jury together to induce agreement 341 Assessment of damages 342 Directing a sealed verdict 343 The verdict 343 Correcting the verdict 344 Polling the jury 346 Entering the verdict 347 General and special verdicts 347 In replevin 348 In ejectment 349 In action to determine claims to real property 850 Motion for a new trial 350 Proceeding to perfect the right to costs 351 Certificate as to the right to costs 351 Motion for an additional allowance. .". 354 Taxing costs 354 TRUST : How far trust funds can be reached in creditor's action 621 TRUSTEES : Indemnity for expenses out of trust fund 475, 476 Costs in actions by or against a trustee 517 VACATING : Order for production of books, etc 144 Order for examination before trial 153, 156 Orders generally , 664 VALUE : Allegation of, not issuable 51 General Index. 831 VARIANCE : Page. Between pleadings and the proofs 301 Material and immaterial variances 301, 302 Conforming the pleadings to the proofs 302 Where an objection has been taten to the evidence , 303^ What is not a variance but a failure of proof 304, 311 VENUE : Omission of the venue fatal to an affidavit , 638 Change of, for convenience of witnesses 87, 94 To the proper county 88 To obtain impartial trial 93 Opposing change of 97 VERDICT : Mode of arriving at a verdict 341 Rendering a verdict 343 Cannot be received by the clerk in absence of the justice 344 Cannot be received by a justice of appellate division 344 Correcting 344, 846 Re-considering 344 Mistake in announcing 345 Affidavits of jurors to impeach their verdict not allowed 345 Polling jury 346 Entering 347 General and special verdicts 347 In replevin 348 Inejectment 349, 438, 439 In action to determine claim to real property 350 Motion to set aside the verdict and for new trial 350 Conclusiveness of thefindingsof a jury onatrial by the court. 121, 375, 377 Directing a verdict 330 Directing a sealed verdict 843 Directing a verdict subject to (pinion of the court, 325 WAIVER: Of a right to a jury trial 57, 62. 234 Of objections to a deposition 180 Of defective service of a notice of trial 196 Of a challenge of a ruling thereon 246 Of objections to evidence 291 Of exceptions 292 Of oath of referee 362 Of a right to a new trial in ejectment 441 WASTE: Costs in action for 483, 493 Judgment ••• 612 WEEK: When it commences and ends 433 Calculation of the period of publication 42a 832 General Index. WILL: Page. Action to determine the validity of, triable by jury 57 Additional allowance of costs in action to procure adjudication upon. 540, 541 Judgment in action to establish or impeach a will 618 WITNESS : Changing place of trial for convenience of witnesses 94 Compelling the attendance of vntnesses 137 Examination of, before trial 144 Taking deposition of, without the state 161 Absence of, as a ground for postponement of trial 225 Imposing payment of viritnesses' fees upon postponement 230 Order of examining witnesses upon a trial 251, 254 Direct examination 256 Cross-examination 257 Re-direct 262 Examination of expert 263 Use of memoranda by a witness 266 Subscribing witness 271 Proof of inability to procure a witness on the trial 273 Impeaching or discrediting witnesses 274 Sustaining impeached or discredited witness 283 Commitment of perjured witness 286 Objections to competency of 287, 288 Statement of opinion by judge as to honesty of a witness 331 Powers of referees in respect to 360 Witness' fees 538, 569, 585