Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KFNS99 5 C &T 4 «' "*— «* Ubrary .and in s The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924022801 934 THE PRACTICE AT LAW, m EQUITY, AND IN ' SPECIAL PROCEEDINGS, IN ALL \\ c THE OOUETS OFvREOOED^IN THE, STATE OF NEW YOEK; WITH APPROPRIATE FORMS. By WILLIAM WAIT, COUNSELOR AT LAW. VOLUME III. ALBANY: WILLIAM GOULD & SON, Law Booksellers and Publishers. 1874 Entered, according to act of Congress, in the year eighteen hundred and seventy-four, Br WILLIAM WAIT, In the office of the Librarian of Congress, at Washington. WEED, PARSONS AND COMPANY, PRINTERS AND STERE O TTPERS , ALBANY, N. Y. PREFATORY NOTE. This volume continues the work down to the entry of judgment. The matters which remain to be discussed are the enforcement of judgments by execution or otherwise; the review by appeal; the practice in some incidental proceedings ; the subject of special pro- ceedings and actions, and surrogate's practice. A brief examination of the three volumes now published will show the great number and variety of points and principles which must be considered, and will also show how concisely this may be done. But it is to be remem- bered that an attempt is here made to give the entire practice at law, in equity and in special proceedings. No other single work professes to cover so wide a field ; and yet, in presenting the various points, the utmost conciseness has been studied, so far as was practicable with the details of the practice, as distinguished from a mere outline or sum- mary of the practice. In point of expense, or in the saving of labor in examination of questions, it will be well to notice that this work gives the principles that will usually be sought for in the following works : Tillinghast & Shearman, 2 ; Whittaker, 2 ; Tiffany & Smith, 3; Yan Santvoord's Eq.,2; Burrill, 3; Barbour's Ch., 2; Hoffman's Ch., 3 ; Graham, 1 ; Thompson's Prov. Kem., 1 ; Hoffman's Prov. Eem., 1; Kiddle's Supp. Prac, 1; Crary's Special Proa, 2; Abbott's Forms, 2; McOall's Forms, 1; Dayton's Surr., 1; Willard's Exrs., 1. This list does not include Annotated Codes, nor the Revised Statutes, nor the various English works on practice, nor those of the several States of the Union. The most important point to be mentioned is, that nearly all the works named are several years behind the authori- ties, while this work is made up from the late decisions so far as they relate to points of practice. All the other works have been examined, and some of them have been found useful, in the way of suggestion, iv PEEFATOEY NOTE. rather than as a reference to authorities. The text is designed as a full statement of the practice, as found in the latest cases and statutes. The forms are such as are in general use, and are inserted in their appropriate places, as a matter of convenience. If other forms are required, resort must be had to works devoted to that particular sub- ject, and among them -the excellent work of Abbott Brothers will be found very valuable. The remainder of the work will be completed and furnished at an early day, and as promptly as the preceding volumes. WILLIAM WAIT. January 1, 1874. TABLE OF CONTENTS. PAGE. PART VIII. Trial and new trial 1 Chapter I. Trials in general 1 Article I. What is and what is not a trial 1 Section 1. What is and what is not a trial 1 a. In general 1 6. What is a trial 2 c. What is riot a trial 2 Article II. When and by whom an action may be brought to trial. . . 3 Section 1. At what time 3 a. In general 3 b. By whom action may be brought to trial 6 Article III. Preference of issues 7 Section 1. In general 7 a. What issues preferred 7 6. Calendar practice 9 Article IV. Trial of the issues in the action 9 Section 1. In general 9 a Trial of issues of law 9 b. Trial of issues of fact 9 c. Waiver of jury trial 11 Article V. Separate trials between different parties 12 Section 1. When a separate trial will be allowed 12 a. In general 12 Chapter II. Trial by jury 16 Article I. Proceedings on a trial by jury 14 Section 1. Origin of trial by jury 14 a. In general 14 b. Eight to jury trial, in what cases 17 c. When jury trial not a matter of strict right 18 d. Advantages and disadvantages of jury trials 19 Section 2. The settlement of issues of fact for trial 19 a. When not necessary 19 6. Settlement of issues, when necessary 20 c. Application for settlement of issues 20 d. Form of the issues to be tried 21 vi TABLE OF COIfTENTS. Part VIII, Chap. II — Trial by jury — Continued. PAGK e. Trial of the issues of fact /. Review of errors on the trial " Section 3. Notice of trial 24 a. In general " b. By -whom notice of trial may be given 2o c. Notice of trial, to whom given 27 d. At what time notice of trial is to be given 28 e. For what term or time the cause ought to be noticed 29 /. Short notice of trial 29 g. Omitting to notice cause for trial 30 h. Plaintiff must move cause if noticed 32 i. Notice by defendant, what to contain 32 j. When notice cannot be properly given 32 Jc. The notice of trial and its requisites 36 I. Service of notice of trial 35 m. Renewing notice of trial 36 n. Countermanding notice of trial 37 o. Proof of service of notice of trial 39 Section 4. Putting the cause upon the calendar 39 a. In general 39 6. Note of issue 39 c. The calendar .' 40 d. Preferred causes 41 e. Correcting the calendar 41 /. Rule as to calendars in New York city 41 Section 5. Short calendars 41 a. Supreme court, New York city 41 6. New York superior court 42 c. New York common pleas 43 d. Supreme court, second judicial district 43 Section 6. Affidavit of merits 44 a. In general 44 6. When necessary 44 c. When not necessary 45 d. When to be made .' 45 e. By whom to be made 46 /. The affidavit, its requisites, its forms 47 g. Piling and service 50 h. Controverting the truth of the affidavit 51 i. Amendment of affidavit 51 Section 7. Calling calendar'; reserving causes 52 a. In general 52 6. Reserving causes 53 Section 8. Inquests 53 a. In general 53 b. In what cases allowed 54 c. By whom taken 55 d. Against whom taken 55 e. Notice of taking inquest 56 TABLE OF CONTENTS. vii Part VIII, Chap. II — Trial by jury — Continued. page. /. Inquest, when to be taken 56 g. Eights of defendant 57 h. Inquest, how taken 57 i. Waiving inquest. 58 j. Opening or relieving from inquest 58 k. Appeal from order opening inquest 61 Section 9. Defaults 61 0. In general 61 6. Plaintiff's default 61 c. Defendant's default 62 d. Proceedings upon default 63 e. Opening default 63 Section 10. Postponement of causes 64 a. In general 64 b. By plaintiff 64 c. By defendant 65 d. Grounds of postponement 66 e. Application for 69 /. Affidavit — requisites and forms 69 g. Opposing application 72 h. Decision on application 73 i. Terms imposed 75 /. Costs 76 h. The order, its requisites and form 76 1. Belief if postponement refused 77 Section 11. Incidental applications 77 a. Objecting to jurisdiction 77 6. Objecting to want of parties 78 c. Suppressing deposition 78 d. Objections to pleadings 79 Section 12. Trial and its incidents 79 a. In general 79 o. Beference on the trial 80 c. Hearing cause out of order 81 d. Papers for the court 83 e. Stenographer 83 /. Demurrer to evidence 83 g. Jurisdiction after cause passed 84 h. Admissions' 84 i. General practice at the trial 85 /. Puis darrein continuance 86 7c. Contempts 87 Section 13. Judgment on the pleadings 89 a. In general 89 6. Qualifications of jurors 89 c. Summoning and enforcing attendance -91 d. Additional jurors 93 e. Alien jury 93 / Fees of jurors 94 viii TABLE OF CONTENTS. Part VIII, Chap. II — Trial by jury — Continued. i" AGE - g. Calling and swearing jury 95 h. Talesmen °° i. Special jury 100 j. Foreign jury 102 Section 14. Challenges 1° 2 u. In general 102 b. Challenge to the array ; 103 . c. Challenge to the polls 104 d. Challenge for disqualification 104 e. Challenge for crime 104 /. Challenge to the favor 104 g. Mode of challenging 107 h. Trial of challenge 108 i. Peremptory challenge Ill Section 15. Eight to begin Ill a. In general Ill b. "When plaintiff entitled to begin 112 c. When defendant entitled 112 d. Error in granting or refusing request 113 Section 16. Opening case 113 a. In general 113 b. By plaintiff 115 c. By the defendant 115 Section 17. Evidence 116 a. In general 116 b. Burden of proof 117 c. Competency of witnesses 120 d. View 123 e. Plaintiff's evidence 124 /. Defendant's evidence • 125 g. Evidence in reply 125 h. Rebutting evidence 125 i. General practice 125 j. Examination of witnesses, rules for 126 k. Direct examination 129 I. Cross-examination 130 m. Re-examination 139 n. Impeaching witness 139 o. Committing perjured witness 153 Section 18. Proceedings where defect of parties 153 a. In general 153 b. Of plaintiffs 154 c. Of defendant 154 d. Bringing the third parties 155 Section 19. Nonsuit 156 0. In general 156 1. Voluntary nonsuit 156 c. Compulsory nonsuit 157 d. Motion for 161 TABLE OF CONTENTS. ix Part VIII, Chap. II — Trial by jury — Continued. page. e. The decision 162 Section 20. Withdrawing a juror 164 a. In general 164 b. Effect of ' 164 Section 21. Submitting specific questions 164 a. In general ; 164 Section 22. Variance 165 a. In general 165 6. Material variances 166 c. Immaterial variances 166 d. Amendment 167 Section 23. Summing up 167 a. In general 167 b. By the defendant 168 c. By plaintiff 169 d. Rules for 169 Section 24. Questions for the court 170 a. In general 170 Section 25. Mixed questions 172 a. In general 172 Section 26. Questions for the jury 175 a. In general 175 Section 27. The charge 176 a. In general 176 b. Questions of fact 178 c. Discretion 178 d. Bequests to charge 179 e. Befusal to charge 181 /. Directing verdict 181 g. Exceptions to charge or refusal 182 Section 28. Consultations of jury 184 a. In general 184 6. Persuading to agree 185 c. Mode of determination 185 d. Keeping jury together 186 e. Misconduct of the jury 187 f. Failure to agree 188 Section 29. General verdict 188 a. In general 188 b. When proper 188 c. Requisites of 189 d. Separate damages 189 e. Submitting specific questions 190 /. Damages 191 g. In replevin 192 h. Oral verdict 192 i. Sealed verdict 192 /. Rendition of the verdict 193 h. Alteration and correction of verdict 193 Vol. III. — b x TABLE OF CONTENTS. Part VIII, Chap. II — Trial by jury — Continued. PAGE. I. Polling the jury 193 m. Entry of verdict n. Conclusiveness of verdict " o. Assignment of verdict *"" p. Setting aside verdict "" q. Errors cured by verdict 195 Section 30. Special verdict 195 a. In general 195 b. How prepared 19" c. Construction 197 d. Amendment 19' e. Stay of proceedings 197 /. Bringing on argument 198 g. The argument 198 h. Proceedings after argument 198 Section 31. Verdict subject to opinion of court 198 a. In general 198 b. Form of 199 c. Preparation 199 d. Suspending entry of judgment 200 e. Stay of proceedings 200 /. Bringing on for argument 200 g. The decision 201 h. Proceedings subsequent 201 Section 32. Verdict in equity cases 201 a. In general 201 b. On feigned and awarded issues 202 Section 33. Objections and exceptions 202 a. In general 202 b. When exception lies 202 c. When an exception does not lie 203 d. Exception, when taken 203 e. By whom taken 204 /. Form of 204 g. Must be specific 205 h. Exceptions, how cured 206 i. Bill of exceptions 207 Section 34. Eeserving cause for judgment 207 a. In general 207 b. Eeserving for argument 208 c. Eeserving exceptions 208 d. Eeserving for consideration 210 Section 35. Stay of proceedings ; . . 210 a. In general 210 Section 36. Discretionary powers of court 210 a. In general 210 Chapter III. Trial of issues of fact by the court 212 Article I. Proceedings on the trial 212 TABLE OF CONTENTS. xi Part VIII, Chap. Ill — Trial of issues of fact by the court — Continued. page. Section 1. "What actions or issues are properly so triable 212 a. Equitable actions 212 6. Actions which might be referred 212 c. Actions not usually tried by jury 212 d. "When jury trial necessary 213 Section 2. "Waiver of trial by jury 213 a. Eight to waive jury 213 b. Failing to appear 213 c. "Written consent 214 d. Oral consent 214 e. "What is a waiver 214 /. What is not a waiver 215 Section 3. Bringing on the trial 215 a. In general 215 5. Practice on the trial 215 Section 4. The decision 216 a. In general 216 h. "What to be decided 216 c. How to be decided 217 d. Effect of decision 217 e. "When to be rendered 218 / Statement of facts found 218 g. Statement of conclusions of law •. 219 h. Preparing and settling decision 219 t Filing 219 /. The judgment 220 h. Reserving cause for judgment 220 I. Final hearing 221 m. Objections and exceptions 221 n. Correcting findings 221 Section 5. Exceptions to decision 222 a. In general 222 6. Case or exceptions 223 c. Questions of fact 224 d. Questions of law 224 e. "Waiver of exceptions 224 Section 6. Entry of judgment 225 a. Final hearing 225 6. Mode of entering judgment 225 Section 7. Appeal 225 a. In general 225 Chapter IV. Trials of issues of law 227 Article I. Preparation for trial 227 Section 1. Bringing on the trial 227 a. At what term and place 227 5. Before what court 227 c. Notice of argument 227 d. Copies of pleadings and points 228 xii TABLE OF CONTENTS. Part VIII, Chap. IV — Trials of issues of law— Continued. PAGB - e. Note of issue 229 Article II. Trial or argument Section 1. Proceedings on a. Furnishing papers .... ."7 b. Opening argument c. Reply 229 d. Closing the argument e. General practice on argument, ■"" Article III. The decision or judgment 230 Section 1. How rendered 230 a. In general 230 6. Rules of decision 230 c. Withdrawing demurrer 230 d. Pleading over 231 e. Amendment 231 /. Filing decision 232 g. Service of copy "of decision 232 h. Issues of fact, as well as of law 232 i. Exceptions to decision , 232 Article IV. Proceedings after decision 232 Section 1. In general 232 a. Judgment for cost 233 b. Assessing damages, or further application to court 233 e. Trial of issues of fact 234 d. Taxing costs 23o e. Entering judgment 236 /. Appeal 236 Chapter V. Appointing a referee 238 Article I. Proceedings to appoint a referee 238 Section 1. Nature, object and origin of the appointment 238 a. In general 238 b. Reference prior to the Code 240 Section 2. Reference under the Code 242 a. In general 242 b. In what actions 243 c. Consent to reference,. 244 d. Compulsory reference 246 e. When the court has no power to compel 250 /. Torts 252 g. Divorce 252 h. Interlocutory references 253 Section 3. Proceedings to obtain reference by consent 254 o. Form of consent 254 6. Application for order 256 c. Form and entry of order 256 d. Service of order 258 e. Effect of the order 258 /. Construction of the order 258 TABLE OF CONTENTS. xiii Part VIII, Chap. V — Appointing a referee — Continued. page. g. Appeal from order 259 Section 4. Proceedings to obtain compulsory reference 259 a. When to make application 259 b. Where application should be made 260 c. Notice of motion 260 d. Affidavits 261 e. Practice on motion 262 /. Reference, on motion of the court 265 g. Appeal from order 265 Section 5. Order of reference 266 a. General 266 b. Porm and contents of order 266 c. Entry and service of order 267 d. Effect of order 268 e. If all object, referee not appointed 268 Section 6. Waiver of irregularity in proceedings 269 a. Eeference by consent 269 b. Compulsory reference 269 c. Disregarding order 269 Section 7. Who appointed referee 270 a. In general 270 6. Judge as referee 271 c. Residence of referee 271 d. In actions for divorce 271 e. Number of referees 272 Article II. General powers of referees 272 Section 1. In general ' 272 a. Limited by statute 272 6. Bound by decisions 273 c. Must act in proper person 274 d. Improper influence 274 e. Striking out complaint 275 /. Amending complaint 276 g. Disregarding variances 277 h. Compelling the attendance of witnesses 278 i. Proceeding ex parte 279 j. Mode of examination on trial 279 h. Contempts 281 I. Opening case 283 m. Pixing time of hearing 284 n. Granting adjournments 284 o. Referee as a witness 285 p. Refusing to hear evidence 286 q. Requiring the production of books, etc 287 r. Granting allowances 287 s. Costs 287 t. Altering report 288 u. Administering oaths 289 xiv TABLE OF CONTENTS. Part VIII, Chap. V — Appointing a referee — Continued. PA8E » v. Control of court over referee 290 w. Discretion 290 Section 2. Trial by referees, how conducted 291 a. Bringing on the hearing 291 5. Appointment of hearing 291 c. Place of hearing 293 d. Notice of hearing 293 e. Referees must all be present 294 /. Eeferees to be sworn 294 g. General course on hearing 294 h. Defaults 296 *". Postponement 296 /. Variance 297 h. Nonsuit 297 I. What questions considered 298 Section 3. Interlocutory references 298 a. In general 298 b. Reference of specific questions of fact 299 c. To settle issues 300 d. To take proofs 300 e. To state accounts 301 f. On judgment by default 301 g. To compel making affidavits 302 h. To examine title 302 i. To hear claims 303 j. To make inquiries 304 h. Miscellaneous cases 304 Section 4. The report 304 a. In general 304 6. Form and contents 305 c. When to be made 307 d. Compelling report 309 e. Report, how agreed on 309 /. Report upon all the issues 309 g. Report on particular questions 311 h. Report on title 313 i. Delivery 313 j. Alteration and amendment 313 Te. Conclusiveness 314 I. Construction 314 m. Confirmation 315 n. Referee's fees 315 o. Assigning report 317 Section 5. Exceptions to report 317 a. In general 317 o. Who may except 319 c. When to except 319 d. How to except 319 e. Serving and filing exceptions 320 TABLE OF CONTENTS. xv Part VIII, Chap. V — Appointing a referee — Continued. page. Section 6. Report on interlocutory reference 321 a. In general 321 b. Form and contents 321 c. Confirmation of 321 d. Subsequent proceedings 322 Section 7. Proceedings upon report, on reference of all the issues, 322 a. In general 322 6. On all the issues 322 c. On specific questions 322 d. Entry of judgment 323 Section 8. Reviewing report 324 a. In general 324 b. By appeal 324 c. Setting aside report 332 d. Correction '.. 333 e. Costs on review 334 Section 9. Changing referee 334 a. In general 334 b. Death of referee 335 c. Death of parties 336 Section 10. Action against referees 336 a. In general 336 Chapter VI. Interlocutory or decretal orders 338 Article I. Order reserving further directions and reference thereon . . . 338 Section 1. In what cases order is made 338 a. In general 338 b. Reference to make inquiries 340 c. To take proofs 341 d. To take accounts, make computations, etc 342 e. To hear claims 342 /. To sell estates 344 g. In divorce actions 345 h. In partition 346 i. In foreclosure 347 j. Order upon interlocutory decision 348 Article II. Proceedings on the reference 349 Section 1. How to proceed 349 a. In general 349 b. How made 349 c. Who appointed referee 349 d. General powers and duties 349 e. Change of referee 350 /. Fixing time and place of hearing -.....* 350 g. Parties, how brought before referee 351 h.* Who to prosecute the order of reference 352 i. What parties to attend, and what notice to them 352 j. Adjournments 353 Jc. Compelling parties and witnesses to attend 353 xvi TABLE OF CONTENTS. Part VIII, Chap. VI — Interlocutory or decretal orders — Continued. page. I. Compelling production of documents 354 m. Evidence 354 Article III. Proceedings on reference to take accounts 355 Section 1. How to proceed 355 a. In general 355 b. Form of account 356 c. Examining parties upon interrogatories 357 d. Proceedings upon accounting 358 e. What allowances may be made 359 /. Allowance of commissions 360 g. Allowing and computing interest 361 Article IV. Proceedings on reference to make inquiries 363 Section 1. How to proceed 363 a. In general 363 b. Inquiries as to persons , 363 c. Inquiries as to fact 365 d. Inquiries as to titles, liens, etc 365 e. Reference in divorce cases 367 /. Reference as to claims 368 g. Claim to surplus money on a foreclosure sale 368 Article V. Proceedings on reference to sell estates or adjust matters before final judgment , 371 Section 1. How to proceed 371 a. In general 371 b. Partition and division of real estate 371 c. Sale of real estate 372 d. Time, place and notice of sale 372 e. Postponement 375 /. Mode of conducting sale 375 g. Re-sale, when ordered and how made 377 h. Mode of applying for re-sale 378 i. Completing sale 379 Article VI. Referee's report on order 379 Section 1. Form, nature and use 379 a. In general 379 b. Different kinds of _ 379 c. Special report 3g0 d. General report, form of, etc 380 Article VII. Exceptions to report 333 Section 1. When and how taken, and brought to hearing 383 a. In general coo t b. Mode of reviewing by exceptions . 384. c. In what cases and on what grounds exceptions lie 385 d. Who may except ogc e. Exceptions, how taken and form of 386 /. Piling and serving exceptions and noticing for hearing... 387 g. Hearing and argument of exceptions 388 h. Decision and proceedings thereon 388 TABLE OF CONTENTS. xvii Part VIII, Chap. VI — Interlocutory or decretal orders — Continued. page. Article VIII. Final hearing on further directions, upon coming in of referee's report 389 Section 1. How to proceed 389 a. In general 389 6. When cause may be heard 390 c. Where to be heard 390 d. Hearing ._ 391 e. Decision and proceedings thereon 392 Chapter VII. New trial 394 Article I. Motion for new trial 394 Section 1. General rules applicable 394 a. In general 394 b. How far discretionary 395 Section 2. For irregularities 396 a. Want of due notice of trial 396 b. Want of proper jury 397 c. Misbehavior of prevailing party 398 d. Misconduct of jury 399 Section 2. On the merits 400 a. In general 400 b. Absence of party, counsel or witness 401 c. Surprise ' 401 d. Verdict against law 403 e. Verdict against evidence 403 /. Perverse verdict 405 g. Errors in charge 405 h. Refusal to charge 407 i. Granting nonsuit 407 j. Refusing nonsuit 407 k. Admitting improper evidence 408 I. Rejecting proper evidence 410 m. Excessive damages 411 n. Inadequate damages 413 o. Perjured evidence 414 p. Error in giving evidence 415 q. Error in exercise of discretion 415 r. Newly-discovered evidence 416 s. Ejectment 417 t. Re-trial by consent : 419 u. Equity cases 419 Section 3. Proceedings to obtain new trial 420 a. In general •. 420 6. In jury cases 421 c. Where the trial is by the court 421 d. On minutes of the court ■■ 423 a, On case or exceptions 424 / How made 424 g. Amendments 430 Vol. III. — o xviii TABLE OF CONTENTS. Part VIII, Chap. VII — New trial — Continued. PAGB - h. Settlement of case Re-settlement 432 i. Filing of case when settled 433 j. Motion to be made 433 h. When to be made 435 I. How to be made 436 to. Stay of proceedings 436 n. Affidavits 437 o. Notice of motion 439 p. Opposing the motion 439 q. Practice on hearing .• • ■ • 439 r. Granting or refusing new trial 440 s. Vacating order 442 t. Proceedings after verdict on feigned issue - . . . 442 Section 4. Proceedings, if new trial granted 442 a. In general 442 b. Second or other new trial 443 c. Appeal from order 443 Section 5. When new trial refused 444 a. In general 444 b. Objections not taken 445 c. Harmless errors 446 d. Trivial claims 447 e. Hard actions 447 /. Defense unconscionable 448 g. Relinquishing damages 448 Section 6. Costs .448 a. In general 448 Section 7. Preparing case for court of appeals 449 a. Appeal, when advisable 449 b. Case, how prepared 450 Part IX. Costs 453 Chapter I. Of costs in general 453 Article I. General principles 453 Section 1. In general , . 453 a. Right to, on what founded 453 b. Reasons for allowing 454 c. Cosfs under the Code 454 d. What statute controls 456 e. Interlocutory or final costs 456 /. Costs, when proceedings void 457 g. On improper pleadings 457 h. In actions pending in 1848 457 i. To defendants 458 Chapter II. What costs allowed en entry of judgment 460 Article I. When allowed, and the amount 460 TABLE OF CONTENTS. xix Part IX, Chap. II — What costs allowed on entry of judgment — Continued, page. Section 1. Costs when title to land is in question 460 a. In 1 general 460 5. When title arises on the pleadings 461 c. When title arises on the evidence 462 Section 2. Costs in replevin 463 a. In general 463 Section 3. Costs in actions for torts to person or character 464 a. In general 464 6. In New York city 464 Section 4. When justices' courts have no jurisdiction 465 a. In general 465 Section 5. Actions to recover money only 467 a. In general 467 Section 6. Separate issues 468 a. In general 468 b. Several defendants 469 c. Separate bill of costs 469 d. Costs to plaintiff 470 e. Default of one defendant 471 Section 7. Equity suits, or for special relief 471 a. In general, or discretionary 471 b. Rules for allowing or refusing 472 c. Costs in creditor's action 474 d. On demurrer 475 e. Divorce 475 /. Dower ; 475 g. Fraud 475 h. Interpleader 476 i. Mortgage cases 477 ./. Partition 477 k. Quieting title 478 I. Specific performance 478 m. Trustees 479 n. Wills 480 o. Municipal corporations 481 Section 8. Rate and amount of costs 481 a. In general 481 b. Before notice of trial 481 c. After notice and before trial 483 d. Trial fees 484 e. Term fees » . 486 Section 9. Double and treble costs 489 a. In general 489 6. To officers 490 c. How obtained 491 d. Treble costs 491 Section 10. Extra allowance as of right 491 a. In general 491 xx TABLE OF CONTENTS. Part IX, Chap. II — What costs allowed on entry of judgment — Continued, page. Section 11. Discretionary allowance 494 a. In general 494 b. In difficult and extraordinary cases 494 c. When a trial has been had 496 d. Infants 497 e. Amount 497 /. Application for 497 Section 12. Counsel fees 499 a. In general 499 Section 13. Disbursements 500 a. In general 500 b. What are allowed 500 c. Fees of officers 500 d. Referee's fees 501 e. Stenographer's fees 501 / Witness fees 501 ' g. Party as witness 503 h. Traveling fees 503 i. Commissions 504 j. Other disbursements 504 Chapter III. Costs on motions and special applications 505 Article I. Costs on motion 505 Section 1. In general; when granted or refused 505 a. In general 505 5. Costs in the cause 506 c. When allowed 506 d. Ex parte motions 506 e. If not asked for 506 /. Successful party 507 g. Too much asked 507 h. Needless opposition 507 i. Unnecessary motions ' 508 j. New questions 508 k. Defective notice 509 I. Setting aside irregularities 509 m. Application for allowance 509 n. Motion for discovery 509 o. Motion for consolidation 509 p. Motion to change place of trial 510 q. Motion for commission 510 r. Order on commission 510 s. Order to fix costs 510 Section 2. Costs on motion for new trial 511 a. In general 511 b. New trial as a favor 511 c. New trial on a case 511 d. New trial on judge's minutes 512 TABLE OF CONTENTS. xxi Part IX, Chap. Ill — Costs on motions and special applications — Continued, page. Section 3. Costs on granting favor 512 a. In general 512 5. Discretion as to costs 512 c. General principles adopted '. 513 d. Amended pleadings 513 e. Postponement 514 /. New trial 514 g. Vacating judgment 515 h. Vacating inquest 515 i. Stipulating to try cause 515 Section 4. Application for judgment at general term 516 a. Submitting controversy 516 6. Special verdict 516 c. Verdict subject to opinion of court 516 d. Exceptions first heard at general term 516 Chapter IV. Costs on appeals ' 517 Article I. In general 517 Section 1. General principles 517 a. Discretionary, when 517 6. Separate bills 517 c. Rule as to discretion 517 d. Double costs 518 e. Treble costs 519 /. Extra allowance 519 g. Dismissal of appeal 519 Section 2. Appeals to court of appeals 519 a. In general 519 6. Term fees 520 c. On affirmance or reversal 520 d. On dismissing appeal : 521 Section 3. Appeals to general term 521 a. Appeals from judgments *. . 521 b. Appeals from order for new trial 521 c. Appeals from order on demurrer 522 d. Appeals from special proceedings 522 e. Appeals from other orders 522 /. Dismissal of appeal 522 Section 4. Costs on appeals from justices' courts 523 a. In general 523 b. Appeal transferred to supreme court 525 Chapter V. Costs on settlement before judgment 526 Article I. In general 526 Section 1. Costs against defendant — 526 a. In general % 526 b. Extra allowances 526 Section 2. Costs on discontinuance '. 526 a. In general 526 b. Before defendant's appearance 527 xxii TABLE OF CONTENTS. Part IX, Chap. V — Costs on settlement before judgment — Continued. page. c. After appearance & ^' d. Discretion of court "29 Chapter VI. Of liabilities of particular persons 530 Article'I. Who liable, and when 530 a. In general i 530 Section 1. Liability of trustees 530 a. In general 530 b. Who are trustees 530 C. When trustees are charged 530 d. Trustee, how charged 532 e. Party represented 532 Section 2. Costs against estates of deceased persons 532 a. In general 532 6. In what actions 533 c. Presentations of claims 533 d. Unreasonable resistance , 534 e. Unreasonable neglect f 534 /. Refusal to refer 535 g. Costs, how allowed 535 Section 3. Costs against infant plaintiffs 536 a. In general 536 Section 4. Liability of people for costs 537 a. In general 537 Section 5. Liability of assignees pending suit 537 a. In general 537 Section 6. Liability of attorneys for costs 538 a. In general 538 b. Non-resident clients 539 c. In other cases 539 Chapter VII. Attorney and counsel fees 540 Article I. Generally considered 540 Section 1. Attorney's fees, how regulated 540 a. In general 540 5. Eight to sue for 541 Section 2. Lien for costs 541 a. In general 541 6. Rights of lien against third parties 542 Chapter VIII. Pees of officers of the court 545 Article I. In general 545 Section 1. Pees of the court 545 a. In general 545- b. Payment of his fees 546 Section 2. Pees of sheriff 546 a. In civil actions 546 b. Pees on executions 547 c Other fees 548 d. Who liable for 549 TABLE OF CONTENTS. xxiii Part IX, Chap. VIII — Fees of officers of the court — Continued. page. Section 3. Fees of referees 549 o. In general 549 Chapter IX. Of the adjustments of costs 551 Article I. Proceedings on 551 Section 1. By whom adjusted 551 a. In general 551 b. Interlocutory costs 551 c. Final costs 552 • Section 2. Notice of adjustment 552 a. In general 552 6. Time of notice 553 c. Omitting due notice 553 Section 3. The adjustment 553 a. In general 553 b. Bill of costs 554 c. The affidavit 554 d. Objections 558 Section 4. Appeal from adjustment 558 a. In general 558 b. How waived 558 c. What will be reviewed 559 d. The decision 559 e. Costs 559 /. Appeal 559 g. Costs in court of appeals 560 Paet X. Judgment 561 Chapter I. Proceedings before entering judgment 561 Article I. Application when relief demanded 561 Section 1. Application necessary in all cases where relief is de- manded 561 Section 2. Application, where made 561 Section 3. Application, when made 562 Section 4. Notice of application 562 Section 5. Proceedings on application 562 a. In general 562 6. In foreclosure 562 c. In action for divorce 563 Section 6. What relief may be granted in case of default 563 Section 7. What relief may be granted in case of answer 564 Article II. Application on special verdict 564 Section 1. What is a, special verdict 564 Section 2. Where application on, must be made 565 Section 3. On what notice 565 Section 4. Placing cause upon calendar 565 Section 5. Papers upon application 565 Section 6. Proceedings on decision 565 Section 7. Application for judgment non-obstante verdict 566 xxiv TABLE OF CONTENTS. • Part X, Chap. I — Proceedings before entering judgment — Continued. page. Section 8. Motion in arrest of judgment 5oo Article III. A_pplication on verdict subject to opinion 567 Section 1. When such verdict can be given 567. Section 2. Effect of such verdict 568 Section 3. Application, where made 568 Section 4. Papers necessary on application 568 Section 5. Case and points 568 Section 6. Note of issue 568 Section 7. Notice of motion 568 Section 8. What questions considered on the hearing 569 Section 9. What judgment may be given 569 Section 10. Proceedings on judgment 569 Section 11. Appeal 509 Article IV. Application on matters or points reserved 570 Section 1. When order may be made reserving cause for argu- ment or further consideration 570 Section 2. Application for judgment, where made 570 Article V. Application for special order or decree 571 Section 1. When application for special order or decree necessary, 571 Section 2. Application, where and when made 572 Section 3. Procuring and settling order 573 Section 4. Form of order 574 Article VI. Application for settlement of decree 576 Section 1. Application, where made 576 Section 2. Making draft and amendment 576 Section 3. Settlement by judge 576 Section 4. Re-settlement 576 Article VII. Reference to ascertain facts 576 Section 1. In what cases necessary 576 Section 2. In foreclosure 577 u. What matters referred in foreclosure 577 b. Motion for reference, how made 577 c. Affidavit 577 d. Order of reference , 578 e. Proceedings on reference 578 /. Report and confirmation 579 g. Application for judgment 579 Section 3. In partition . 579 a. What matters referred in partition 579 6. Motion, where and how made 579 c. Affidavit 579 d. Order for reference . 579 e. Proceedings upon reference ■ 580 / Report 580 g. Application for judgment 580 Section 4. In action for divorce 581 a. What matters referred in divorce suits 581 &• Application, how made 581 TABLE OF CONTENTS. xxv • Part X, Ohap. I — Proceedings before entering judgment — Continued, page. c. On what papers 581 d. Order of reference 581 e. Proceedings on reference 581 /. Report ■ 582 g. Application for judgment » 582 Article VIII. Enlarging time for entry 582 Section 1. Time for entry of judgment may be extended 582 Section 2. Application for order, where made 582 Section 3. Application, how made 582 Section 4. Service of affidavit and order. . . . , 582 Article IX. Procuring verdict, report, decision, etc 583 Section 1. What papers are necessary on entry of judgment 583 Section 2. Service with notice of judgment 583 Article X. Compelling entry of judgment 583 Section 1. Object of compelling entry of judgment . . .• 583 Section 2. Entry of judgment, how compelled 583 Section 3. Effect of delay in entry by clerk 584 Article XT. Preparing papers for judgment roll 584 Section I. What papers constitute 584 Section 2. Papers, by whom furnished 585 Article XII. Adjustment and re-adjustment of costs 586 Section 1. What is an adjustment of costs r . . 586 Section 2. Notice of adjustment 586 Section 3. By whom adjusted 586 Section 4. Effect of omission of notice 587 Section 5. Re-adjustment, when necessary 587 Chapter II. Nature of judgment and the relief. 588 Article I. Nature and definition 588 Section 1. What is a judgment 588 Section 2. Relation of judgments to the common law 589 Section 3. Difference between statutory and judicial law 589 Section 4. Judgments, how far binding as precedents 590 Section 5. Dicta, how far authority 592 Article II. Distinction, between order and judgment 594 Section 1. Judgments and orders, how distinguished 594 Section 2. Decision on motion for judgment on frivolous pleading, 594 Section 3. Decision on issues of law 596 Article III. Joint judgments 597 Section 1. Distinction between joint and several judgments .... 597 Section 2. When a judgment may be joint 597 Section 3. Entry and effect of joint judgment 598 Section 4. Proceedings under Revised Statutes to enforce separate liability 599 Section 5. Proceedings under the Code 600 a. Summons to show cause, when proper 600 6. Nature of summons 601 c. Form, contents and service of summons 601 Vol. III. — r> xxvi TABLE OF CONTENTS. Part X, Chap. II — Nature of judgment and the relief — Continued. page. d, Affidavit of amount due 601 e. Pleadings of party summoned 602 /. Pleadings of judgment creditor C02 g. Issues, how tried 602 * h. Form of judgment 602 Article IV. Separate judgments 603 Section 1. When a several judgment should be rendered 603 Section 2. On joint contracts 604 Section 3. On joint and several contracts 604 Section 4. On a several contract alleged to be joint 605 Article V. Severing actions or parties 605 Section 1. When judgment should be against some and in favor of other defendants 605 Section 2. When judgment must be rendered in favor of some and against other defendants 605 Article VI. Judgment between several defendants 605 Section 1. Relief as between co-defendants, when granted 605 Article VII. Relief to plaintiff 606 Section 1 . In case of default 606 Section 2. In case of answer 607 Section 3. Relation of relief to complaint 608 Article VIII. Relief to defendant 609 Section 1. Affirmative relief 609 Section 2. Relations between pleadings and relief 609 Section 3. Divorce 610 Article IX. Legal and equitable relief 610 Section 1. In general 610 Article X. Judgment on demurrer 611 Section 1. Where demurrer is overruled. , 611 Section 2. Where demurrer is sustained 611 Section 3. Pinal judgment against plaintiff 611 Section 4. Pinal judgment against defendant 611 Article XL Judgment on frivolous or false pleading 612 Section 1. What judgment may be given on frivolous pleading. . 612 Section 2. Nature of decision 613 Section 3. Effect of decision , . (J13 Section 4. What judgment may be given on a false pleading 613 Section 5. Effect of judgment 614 Section 6. What judgment may be rendered on a pleading false in part and frivolous in part 614 Article XII. Judgment on admitted demand 614 Section 1. What judgment may be rendered 614 Article XIII. Stipulation for judgment 615 Section 1. Parties compelled to abide by 615 Chapter III. Form and contents, in general 616 Article I. General form of judgments 616 TABLE OF CONTENTS. xxvii Part X, Chap. Ill — Form and contents, in general — Continued. page. Section 1. Essentials of a judgment 616 Section 2. Title and caption 616 Section 3. Recitals 617 Section 4. Mandatory part 617 Article II. Judgment for plaintiff .* 618 Section 1. On failure to answer summons personally served 618 Section 2. Judgment on failure to answer summons served by publication 618 Section 3. Judgment on admitted demand 619 Section 4. Judgment on demurrer 619 Section 5. Judgment on a verdict 619 Section 6. Judgment on a report of referee 619 Article III. Judgment for defendant 619 Section 1. On dismissal of complaint 619 Section 2. On a failure to reply 620 Section 3. Judgment on the merits 621 Article IV. Judgments between defendants 621 Article V. Judgments for damages or money 621 Section 1. Form of judgment for money 621 Section 2. Judgment against joint debtors 622 Article VI. Judgments in actions for lands 622 Section 1. For plaintiff 622 Article VII. Judgment in action for chattels • 623 Section 1. For plaintiff 623 Section 2. For defendant. , 624 Article VIII. Judgment for special relief 625 Section 1. In foreclosure 625 Section 2. In partition 627 Section 3. For divorce 628 Section 4. Specific performance 630 Section 5. Against infants 632 Section 6. Surrender of documents 632 Section 7. Settlement of judgment 633 Article IX. Judgment on appeals 633 Section 1. Proceedings on judgment in appellate court 633 Section 2. Judgment of affirmance 634 Section 3. Judgment of reversal 634 Section 4. Judgment of affirmance and reversal 635 Section 5. Dismissal of appeal 636 Article X. Judgment for costs 636 Section 1. When judgment for, can be awarded 636 Article XL Judgments upon frivolous pleadings 637 Section 1. Form of judgment 637 Chapter IV. Judgment by default. . , '. 638 Article I. "Who may take 638 Section 1. In general 638 xxviii TABLE OF CONTENTS. Part X, Chap. IV — Judgment by default — Continued. I,AGE - Section 2. Where pleadings have been stricken out 638 Section 3. Where party has been allowed to plead over on terms, 638 Article II. Default of plaintiff 639 Section 1. On failure of plaintiff to serve complaint on dernand. . 639 Section 2. On failure of plaintiff to serve summons on some de- fendants 639 Section 3. On failure of plaintiff to bring cause to trial 639 Section 4. On failure to furnish security for costs 640 Section 5. On omission of plaintiff to bring in representatives of deceased defendant 640 Section 6. On allowance of demurrer to complaint 640 Section 7. On allowance of demurrer to reply 640 Article III. Default of defendant to answer 640 Section 1. On default of one of several defendants 640 Section 2. On default of all defendants 641 Article IV. Partial default to answer 641 Section 1. Where answer contains no denials, but sets up counter- . claim 642 Section 2. Statement admitting counter-claim.' 642 Section 3. Notice of taxation of costs 642 Article V. Defendant's non-appearance on trial 642 Section 1. Effect of default 642 Section 2. Inquest 642 Article VI. Plaintiff's failure to reply 642 Section 1. Effect of failure to reply 642 Section 2. Notice of application for judgment 643 Section 3. Affidavits and other papers 643 Section 4. Writ of inquiry 643 Section 5. When judgment may be entered 643 Article VII. Judgment without application to court 644 Section 1. In what cases the clerk may enter judgment without order of court 644 Section 2. Proof of default 644 Section 3. Assessment by clerk, when necessary 646 Section 4. Notice of assessment, when necessary 647 Section 5. Proof of notice 648 Article VIII. Judgment on application to court 648 Section 1. Application, when necessary : 648 Section 2. Application, where made.. 649 Section 3. Notiee of application ■ 649 Section 4. Affidavit of service and default 649 Section 5. Proof of plaintiff's demand 650 a. In general 650 b. In actions for special relief 650 c. In case of publication of summons 651 Section 6. Assessment of damages 654 a. How made 654 TABLE OF CONTENTS. , xxix Part X, Chap. IV — Judgment by default — Continued. page. b. Where made 655 Section 7. Assessments by sheriffs jury 655 a. When proper 655 b. Order for writ of inquiry 656 c. Order for sheriffs jury 657 d. Order for assessment at circuit 658 e. Notice of inquiry 658 /. Procuring evidence 660 g. Proceedings before jury 660 h. 'Inquisition and return 662 i. Setting aside inquest 663 Section 8. Assessment at circuit 664 Section 9. Assessment by reference 665 Article IX. Opening default 665 Section 1. Power of court to open 665 Section 2. When power will be exercised 665 Section 3. Application, where made 668 Section 4. Application, when made 668 Section 5. Affidavits 668 Section 6. The order 669 Section 7. Judgment as security 669 Section 8. Costs on motion 669 Section 9. Appeal 670 Chapter V. Judgment on offer 672 Article I. Nature of proceeding . ■. 672 Section 1. In general 672 Article II. In what cases and at what stage allowed 673 Settion 1. €n what cases 673 Section 2. At what stage 673 Article III. Offer, by whom made 673 Section 1. By defendant 673 a. In general 673 b. In case of joint debtors 674 Article IV. Offer, how made 675 Section 1. Must be in writing 675 a. In general 675 b. Requisites of offer 675 c. The signing 676 d. Service 677 Article V. Proceedings subsequent to offer 677 Section 1. Plaintiffs proceedings 677 a. Not stayed 677 5. Amendment by plamtiff 677 c. Acceptance 677 d. Entering judgment 677 e. Rejection of offer 679 /. Effect of non-acceptance 679 xxx TABLE OF CONTENTS. Part X, Chap. V — Judgment on offer — Continued. PAGE - g. What is a more favorable judgment 679 h. Costs before offer 680 i. Entry of judgment 68 ° Section 2. Defendant's proceedings 680 a. Stayed 680 b. Extra allowance °°" Article VI. Offer to compromise by plaintiff 681 Section 1. When to be made 681 Section 2. Acceptance and judgment 681 Section 3. Non-acceptance and its effect 681 Section 4. Practice under this provision 681 Chapter VI. Judgment by confession 682 Article I. Nature of proceedings 682 Section 1. Under former practice 682 Section 2. Under the Code 682 Article II. In what cases 683 Section 1. Must be a debt due or to become due or a contingent liability 683 Article III. By whom confessed 684 Section 1. Partners 684 Section 2. Married women , .■ 684 Section 3. Public officer 685 Section 4. Lunatic 685 Article IV. To whom given . . . ■. 685 Section 1. Construction of section 382.- 685 Section 2. Assignee 685 Article V. The statement » , 686 Section 1. When sufficient 686 a. In general 687 5. For goods sold 687 c. Promissory note 687 d. Money lent 688 e. To secure a contingent liability 688 Section 2. The signature 688 Section 3. Verification 689 Section 4. Amendment of statement 689 a. Supreme court may order amendment 689 b. At what stage 690 c. In what cases ." 690 Article VI. The judgment 690 Section 1. How entered 690 Section 2. Effect of insufficient statement 691 Section 3. Judgment payable in installments 691 Article VII. The costs 692 Section 1. Judgment to be entered with, by clerk 692 Article VIII. The execution 692 Section 1. May be enforced as in other cases 692 TABLE OF CONTENTS. . xxxi Part X, Chap. VI — Judgment by confession — Continued. page. Article IX. Remedies or relief against 693 Section 1. Who may be relieved 693 Section 2. How to obtain relief 693 a. By motion v 693 b. When relief will not be granted 694 c. By action 694 d. Confession by lunatic 694 e. Confession by married woman 694 Chapter VII. Judgment on discontinuance 695 Article I. In general '. . 695 Chapter VIII. Judgment on interlocutory decree 696 Article I. Entry of judgment upon decree, etc 696 Section 1. Judgment, how rendered 696 Section 2. Entry, when judgment allowed on the hearing 696 Section 3. Entry, when judgment not settled on the hearing. . . . 697 Section 4. Form and contents of the judgment roll 697 Section 5. Costs 697 Article II. Rectifying, amending and vacating, etc 697 Section 1. Decree or judgment, how amended before entry or enrollment 697 Section 2. How amended after entry or enrollment 699 Section 3. By bill of review 700 Section 4. Vacating judgment 701 Chapter IX. Entry and notice of judgment 703 Article' I. In general 703 Section 1. What may be entered or enrolled 703 Section 2. By whom entered 703 Section 3. When to be entered 704 Section 4. Entry nunc pro tunc 704 Section 5. Upon whose direction 705 Section 6. In actions for special relief 706 Article II. Judgment on verdict 706 Section 1. Entry of verdict 706 Section 2. Entry of judgment by clerk 706 Article III. Judgment on trial of fact by court 707 Section 1. Decision, when filed 707 Section 2. Effect of not filing decision : 707 Section 3. Requisites of decision 708 Section 4. Correcting decision 708 Section 5. Judgment, when entered 708 Section 6. Judgment must conform to decision 708 ■ Article IV. Judgment- on trial of an issue of law by the court 709 Section 1. Authority for entering 709 Section 2. When entered 709 Section 3. How entered ,_ 709 Article V. Judgment on trial by referee 709 xxxii • TABLE OF CONTENTS. Part X, Chap. IX — Entry and notice of judgment — Continued. page. Section 1. Authority for entering 709 Section 2. When entered 710 Section 3. How entered 710 Section 4. Compelling entry 710 Article VI. Judgment on order for legal relief 710 Section 1. Judgment on admitted demand 710 Section 2. On frivolous demurrer 711 Section 3. On sham pleadings 711 Article VII. Judgment book ' 712 Section 1. Entry of judgment in 712 Section 2. Entry, when made 712 Section 3. Effect of omission to enter 713 Article VIII. Judgment roll 714 Section 1. Judgment roll necessary 714 Section 2. By whom furnished 714 Section 3. Contents of 715 a. On failure to answer 715 b. Where answer served 716 c. On dismissal of complaint 717 d. After trial \ 717 e. After hearing at general term 717 /. On appeal 717 g. Effect of omission in 718 Section 4. Signing of 718 Section 5. Amendment of 719 Article IX. Suspension of entry 719 Section 1. When a suspension of entry will be ordered 719 Article X. Adjustments of costs 720 Section 1. Where, and at what time, costs must be adjusted 720 Section 2. Notice of adjustment 720 Section 3. Proceedings on adjustment 721 Section 4. Re-adjustment 721 Article XI. Docketing 721 Section 1. When a judgment may be docketed 721 Section 2. Mode of docketing judgment 722 Section 3. Docketing transcript 723 Section 4. Effect of docketing judgment 724 Section 5. Amending docket 724 Article XII. Notice of judgment 725 Section 1. Notice, when and why given 727 Section 2. Form of notice 72Q Section 3. By whom and to whom given • 727 Article XIII. Secured on appeal t 727 Section 1. Lien of judgment, how suspended pending an appeal. 727 Section 2. Proceedings to obtain suspension of lien 728 Section 3. When motion will be granted 728 Section 4. Proceedings on order 728 TABLE OF CONTENTS. xxxiii Part X, Chapter X. Amending or vacating judgments 729 Article I. Amending or correcting 729 Section 1. What errors may be amended 729 Section 2. Amendments how made 730 Article II. Vacating 730 Section 1. What judgments may be vacated 730 a. As a right and as a favor ". 730 6. Void judgments 730 c. Fraudulent judgments 731 d. Irregular judgments 732 e. Unauthorized judgments 732 /. In actions commenced by publication 732 Section 2. Proceedings to obtain order 733 a. Who may move 733 b. When to move 733 c. Where to move 734 d. On what papers ....:.. '. 734 e. Stay of proceedings 735 Section 3. Proceedings on order 735 a. Form of order 735 6. Terms 736 c. Restitution 736 Article III. Motion in arrest of 736 Section 1. When proper 736 a. Judgment 736 Chapter XI. Lien of judgments 737 Article I. What judgments may be a lien 737 Section 1. Must direct payment of money 737 Article II Lien, how secured 737 Section 1. Docketing necessary 737 Article III. The lien 738 Section 1. Extent of 738 Section 2. Priority of 739 Section 3. Duration of 739 Article IV. Suspension of 740 Section 1. On appeal '740 Section 2. Imprisonment of debtor 741 Article V. Extinction of lien 741 Section 1. Lien, how extinguished 741 a. Satisfaction of judgment 741 b. Levy and sale 742 c. Recovery of new judgment 743 d. Lapse of time 743 Chapter XII. Setting off judgments 744 Article I. What judgments may be set off 744 Section 1. In general 744 Section 2. Judgments in rem 744 Vol. III.— E xxxiv TABLE OF CONTENTS. Part X, Chap. XII — Setting off judgments — Continued. pagk. Section 3. Assigned judgments 745 Section 4. Pending appeal 745 Article II. Proceedings to obtain set-off 745 Section 1. Eemedy by motion or by action : 745 Section 2. Motion, where made 74b' • Section 3. Motion papers 746 Article III. Proceedings on order 746 Section 1. Satisfaction of judgment 746 1 Chapter XIII. Satisfaction and discharge 747 Article I. Acknowledgment of satisfaction 747 Section 1. When satisfaction must be acknowledged 747 Section 2. Satisfaction, by whom acknowledged '. 747 Section 3. Satisfaction, how acknowledged 748 Section 4. Compelling acknowledgment 748 Section 5. Form of satisfaction-piece 749 Article II. Entry of satisfaction 750 Section 1. On satisfaction-piece 750 Section 2. On sheriff's return 751 Section 3. On sheriff's certificate 751 Section 4. On certificate of reversal 751 Article III. Vacating satisfaction 752 Section 1, When satisfaction will be vacated 752 Section 2. Canceling satisfaction 752 Section 3. Unauthorized cancellation 752 TABLE OF CASES. PAGE. Abbott v. Abbott 30 Abbott v. Smith 647 Abeel v. Conhyser 730 Abell v. Screech 371 Abernethy v. Society of the Church of the Puritans 160, 161, 162 Accessory Transit Company v. Garri- son 285, 353 Acker v. Acker 687 Ackerman v. Ackerman 542, 544 Adams v. Bankart 394 Adams v. Bay lea 251 Adams v. Bush 416 Adams v. Claxton 385, 391 Adams v. Fox 234, 541, 611 Adams v. Hopkins 549 Adams v. Perkins, 488, 520 Ahern v. Standard Life Ins. Co 410 Aislabie v. Rice 478 Akin v. Albany Northern R. R. Co., 5, 155 Albany & Stockbridge R. R. Co. v. Cady 704 Albertiv. Peck 50, 668 Alcott v. Davison 746 Alden. v. Clark 742 Aldrich v. Lapham 650 Alexander v. Barker 410 Alexander v. Byron 401 Alexander v. Carpenter 539 Alexander v. Fink 238 Alexander v. Hard 461 Alexander v. Parsons 171 Allaire v. Lee 2, 484, 496 Allen v. Ackley 665 Allen v. Bodine 140 Allen v. Calhoun 41 Allen v. Compton 5 Allen v. Godfrey 703 Allen v. Mapes 60 Allen v. Way 280, 342, 447 Allen v. Young 414 Allfrey v. Allfrey 359 Allgro v. Duncan 423 Almgill v. Pierson 73 Alsop v. Bell 481 Alston v. Jones 406 Alvord v. Beach 699 American Exchange Bank v. Smith, 647 716 PAGE. American Ins. Co. v. Oakley, 376, 377, 378 Ames v. Lockwood 376 Ames v. Webbers 75 Anderson v. Austin 376 Anderson v. Dickie 435 Anderson v. George 398 Anderson v. Hough 44, 53 Anderson v. Jackson 591 Anderson v. Nicholas 753 Andrew v. Andrew 367 Andrews v. Elliott 245, 269 Andrews v. Smith 743 Anonymous, 37, 38, 41, 46, 48, 51, 59, 67 73, 107, 236, 263, 313, 358, 360, 384, 473 488, 490, 491, 509, 513, 537, 53 ), 553 562, 567, 649, 661, 664, 703 Authoine v. Coit 408 Anthony v. Smith, 124, 126, 186, 210, 211 286, 400, 416 Appleby v. Barry 584, 713, 719 Appleby v. Elkins 44 Apps v. Day 413 Apthorp v. Comstock 409, 420 Arborgast v. Arborgast 346, 582 Archer v. Boudinet 189 Archer v. Cole 463 Argent v. Darrell 443 Armitage v. Pulver 564, 607 Armytage v. Haley 413, 414 Arnold v. Squire 659 Arnoux v. Homans 405 Arnoux v. Phelan 501 Arnoux v. Steinbrenner 529, 531 Artisans' Bank v. Tread well 713, 719 Ashby v. Bates Ill Ashley v. Marshall 327, 464 Ash worth v. Wrigley 528 Askins v. Hearns 573 Atkins v. Lefever . : 458, 470 Atkinson v. Manks 476 Atlantic Dock Co. v. City of Brooklyn, 179 407 Atocha v. Garcia 249 Attorney-General v. Hull 70 Attorney-General v. Mayor of Gal- way 393 Attorney-General v. Rogers 448 Attorney-General v. Stevens 27, 396 Audubon v. Excelsior Fire Ins. Co. 60, 667 Austin, Matter of 599 XXXVI TABLE OF CASES. PAGE. Averill v. Loucks 739 Averill v. Patterson , 527 Averett v. Brady 174 Avery v. Osborne 480 Avery v. Smith 530 Ayer v. Austin 112 Aylett v. Lowe 448 Aylesworth v. Brown 725 Aymar v. Chase, 561, 613, 614, 637, 638 643, 649, 705, 709, 711 Aymer v. Gault 476 Ayrault v. Chamberlain 114, 115 Ayrault v. Pacific Bank 185, 205 Ayrault v. Sackett, 280, 283, 284, 289, 291 314 Ayres v. Covill 700, 734 Ayres v. O'Farrell 405, 410 Ayres v. Western B. R. Co 525 Bacon v. Comstock 55, 598 Badeau v. Rogers 476, 477 Bagley v. Ostrom 76, 514 Bagley v. Smith 179, 436 Bagner v. Jones 489 Bailey v. Durbrow 466 Bailey v. Hanf ord 504 Bailey v. Lane 612 Bailey v. Stone 466 Baily, Ex parte 404 Baily v. Ryder 607 Baird v. Gillett '. 408, 409 Baker v. Ashley 51 Baker v. Bonesteel 404 Baker v. Curtiss 639 Baker v. Hoag 746 Baker v. Richardson 404 Baker v. Simmons 400 Baldwin v. Salter 340 Ball v. Sprague 559 Ball v. Syracuse and Utica R. R. Co. . 570 Bander v. Covill ". .33, 397 Bangs v. Palmer 199, 567 Bangs v. Selden 573 Banta v. Marcellus 458, 506, 507 Bank of Attica v. Wolf 469, 527 Bank of Beloit v. Beale 741 Bank of Geneva v. Hotchkiss 584, 703 Bank of Havana v. Magee 514 Bank of Kinderhook v. Gifford ... 60, 667 Bank of Kinderhook v. Jenison 693 Bank of Massillon' v. Dwight, 553, 587, 721 Bank of Niagara v. Austin 555 Bank of North America v. Embury. . 217 Bank of Rochester v. Boulton 55 Bank of St. Albans v. Khickerbacker, 510 Bank of State of Maine v. Buel 645 Bank of Salina v. Abbott 742 Bank of the United States v. Strong, 510 Bank of Utica v. Ives 511, 512 Bank of Utica v. Root 48 Bantes v. Brady 380 Barante v. Deyermand ,. 527 Barber v. Cromwell 261, 263 Barber v. Rose ' iqi Barclay v Brown .616 Bard v. Fort '.'.".'. ' 666 PAGE. Barker v. Clark ; 608 Barker v. Cocks 597, 604, 605 Barker v. Cook 583 Barker v. Malcolm 113 Barker v. Ray 420 Barker v. White 288, 533 Barlow v. Scott 89, 212, 607, 608, 631 Barnard v. Bruce 729 Barnard v. Pierce 524 Barnardiston v. Lingood 474 Barnes v. Perine 179, 182, 183 Barnes v. Roberts 435 Barney v. Keith 463 Barrett v. Third Avenue R. R. Co. . . 173 195, 400, 405, 417 Barrick v. Austin 163, 408 Barrington v. Tristram 480 Barron v. J ackson 398 Barron v. Sanf ord 265 Barrow v. Rhinelander 385 Barry v. Bennett 410 Barry v. Galvin 411 Barry v. Whitney 540 Barry v. Wilbourne 401 Bartle v. Oilman 540 Bartle v. Wilkin ' 477 Barto v. Himrod 196, 565 Barton v. City of Syracuse 409 Barton v. Herman 290 Barton v. McKinley 666 Bartow v. Cleveland 459, 471 Barwell v. Parker : 361 Bascom v. Peazler 732 Bass v. Comstock 457 Batchelor v. Albany City Ins. Co., 249, 250 252 Bate v. Pellowes 87 Bateman v. Ruth 173 Bates v. Bower 230 Bates v. Loomis 302, 507, 662 Bates v. Relyea 591 Bates v. Voorhees 727 Batten v. Harrison 397, 659 Battershall v. Davis 507 Bauman v. New York Cent. R. R. Co., 595 596, 597 Baxter v. Seaman 48 Beach v. Gregory 224 Beach v. Raymond 280 Beach v. South worth 509 Beach v. Tooker 402, 417, 445 Beacham v. Eckford 472 Beal v. Finch .130, 190 Beals v. Benjamin \ 498 Beardsley v. Dygert 241 Beardsley Scythe Co. v. Foster ... .. 634 Bearss v. Copley 140, 218 Beattie v. Qua .' 558 Beatty v. Sylvester [ 73 Beazley v. Shapleigh 401 Bebee v. Bank of New York 741 Beck v. Sheldon 222, 329 Becker v. Hager 35 Beck with v. Whalen _ 160 Bedell v. Powell 125, 526, 572 Bedell v. Commercial Mut. Ins. Co. 174 TABLE OF CASES. XXXVll PAGE. Bedle v. Willett 260 Beebe v. Ayres 567 Beebe v. Bank of New York 752 Beebe v. Bull '. 238 Beebe v. Grilling 571 Beekman v. Kirk 693 Beekman v. Peck 69S) Beekman v. Reed 37 Beers, Matter of 749 Beers v. Hendrickson . .634, 742, 747, 750 751 Belden v. Knowlton 532, 533 Belden v. Nicolay 411 Belding v. Conklin 455, 464, 554 Belknap v. Mclntyre 597, 704 Belknap v. Sealey 222 Belknap v. Wendell 112 Bell v. Judson 508 Bell v. Noah 2, 485, 505 Bell v. Sbibley 199, 567 Bellinger v. Martindale 417, 418 Bellinger v. People 135 Belmont v. Coleman 411 Belmont v. Erie Railway Co 53 Belmont v. Ponvert, 215, 339, 345, 571, 588 Belmont v. Smith. .'. 317, 321 Bemis v. Kyle 148 Bendernagle v. Cocks 538 Benedict v. Caffe 435, 444, 533 Benedict v. Gilman 477 Benedict v. Harlow 543 Benedict v. Johnson 405, 441 Benedict v. Smith 747 Benedict v. Stuart 540, 541 Benedict v. Warriner 501, 504 Benfield v. Petrie 414 Benjamin v. Smith 446 Bennet v. Attkins 474 Bennett v. Allcott 412 Bennett v. Lake 276 Bennett v. Matthews 397 Bennett v. Winter 699, 700 Benson v. Le Roy t . . . .355, 358 Bentley v Jones 546, 594, 597, 613 Benton v. Bug-nail 488 Benton v. Sheldon 487 Bergen v. Boerum 748 Bergen v. Stewart 728 Berger v. White 210 Bergman v. Howell 645 Berlin v. Hall 602 Berner v. Mittnacht 151 Bernhard v. Bruner 159 Bernhard v. Kapp .... 2, 3, 457, 485, 595 Bernhardt v. Rensselaer & Saratoga R. R. Co 171 Berresford v. Geddes 28 Berrington's Case 400 Best v. Starks 416 Besson v. Southard. 170, 172,- 181 Bick v. Motly 385 Bicknell v. Byrnes 374, 375 Bidwell v. Lament 159 Bigelow v. Finch 738 Bihin v. Bihin 280, 709 Billings v. Baker : . . .268, 273 PAGE. Billings v. Vanderbrek, 257, 274, 334, 335 Billington v. Forbes 377 Bingly v. Mallison. 25 Binney v. Le Gal 674, 676 Binsee v. Wood 161 Birckhead v. Brown 196, 564 Bird v. City of Brooklyn 488 Bird v. Moore 71 Bird v. Sands 285 Biscoe v. Wilks , . . . 479 Bishop v. Morgan 27, 32, 36 Bissell v. Dayton 553 Bissell v. Hamlin 441 Black v. Camden and Amboy R. R. and Trans. Co , 130 Black v. Foster 204 Blackley v. Sheldon 193 Blaine's Lessee v. Chambers 398 Blair v. Claxton 610 Blake v. James 461, 467 Blank v. Westcott 465 Biaaw v. Chaters 30 Bleecker v. Carroll 353 Blewitt v. Gordon 51 Blewett v. Tregonning 139 Bliss v. Tread way 667, 668 Blodget v. Conklin 674 Blossom v. Barrett 205 Blossom v. Barry 724 Blow v. Wyatt 36 Blum v. Higgins 412 Blunt v. Whitney 239 Blydenburgli v. Johnson 435 Blydenburgh v. Northrop, 712, 713, 737 738, 739 Board of Commissioners of Excise of Onondaga County v. Backus 405 Boardman v. Davidson 607 Bodine v. Edwards 378 Bogardus v. Bullock 533 Bogardus v. Doty 668 Bogardus v. Livingston 665, 668 Bogardus v. Riclitmeyer 455, 482 Bogardus v. Rosendale Manuf. Co . . 518 Bogert v. Furman 333 Bolles v. Duff, 222, 226, 348, 422, 509, 668 Bond v. Spark 400 Bonesteel v. Lynde 275, 287, 354 Bonnell v. Henry 734 Bonner v. McPhail,246,256, 257, 258, 266 268, 269, 289, 291, 293, 350 Bonosteel v. Vanderbilt 604 Booth v. Farmers and Mechanics' National Bank, 741, 748, 750, 751, 752 753 Booth v. Smith 9 Booth v. Whitby 76 Boorsdorff v. Dayton 730, 732 Bootle v. Blundell 409, 410, 420 Borst v. Becker. 90 Bortle v. Gilman 489 Bortle v. Mellen 224, 319 Bosher v. Harris 60 Boston Mills v. Eull 459 Bostwick v. Abbott 163, 620 Bostwick v. Tioga R. R. Co 494 XXXV111 TABLE OF CASES. PAGE. Bouchaud v. Dias 518 Boutel v. Owens 683, 684 Bouton v. Bouton 298, 315, 333, 334 Bo wen v. Idley 537 Bowen v. Spears H2, 113 Bower v. Kemp 48 Bowes v. Heaps 474 Bowles v. Van Home. 26, 516 Bowman v. Earle 191 Bowman v. Sheldon 49 Bowman v. Tallman 575 Bowne v. Anthony 506, 510 Bowne v. Joy 749 Boyee v. Bates 539, 640 Boyce v. Comstock 655 Boyd v. Vanderkemp 731 Boyle v. Colman 409 Boynton v. Boynton 148 Brace v. Beatty 493, 497, 526 Biracy v. Kibbe 148 Brad'en v. Kakhaiser 470 Bradlaugh v. Edwards 413 Bradley v. Aldrich 212, 213, 214, 564 Bradley v. Burwell 533 Bradley v. Fay 489, 490 Bradley v. Ricardo 152 Bradley v. Van Zandt 583 Bradshaw v. Callaghan 636 Brainerd v. Dunning 328 Brainard v. Hanford 51 Brainard v. Jones 604 Brandford v. Freeman 112 Brandon v. People 137 Brant v. Fowler 187, 399 Breese v. Bushby 375 Breidert v. Vincent 408 Brent v. Heard 72 Brevort v. Sayre 59 Brevoort v. Warner 356 Brewer v. Isish 317, 429 Brewer v. Bowman 701 Brewerton v. Harris 744, 746 Bridenbecker v. Mason, 672, 673, 674, 675 676, 733 Bridge v. Payson 82, 599 Bridgelord v. Wiseman 27 Bridgeport City Bank v. Empire Stone Dressing Co 174 Bridgeport Fire and Marine Ins. Co. v.Wilson 458, 470 Bridger v. Weeks 224 Bridges v. Miller 492, 493 Brien v. Casey 645 Briggs v. Bergen 612, 712, 715 Briggs v. Byrd 174 Briggs v. Thompson 748, 749 Bright v. Eynon 395 Brill v. Lord 72 Brinckerhoff v. Brown 81 Brinckerhoof v. Lansing 472, 476 Brinkley v. Brinkley 629 Brisbane v. Adams 417 Brisbane v. Dacres 592 Brittan v. Peabody 48 Brockway v. Jewett 470 Brodhead v. Brodhead 562, 638, 645 PAGE. Bromaghim v. Gorse 38 Bronner v. Frauenthall 503, 555 Bronson v. Wiman 206 Brooke v. 367 Brooklyn Oil Works v. Brown. . . 66, 69 70, 72, 74, 75, 77 Brookman v. Hamill 204, 446 Brooks v. Christopher 280 Brooks v. Hanford 745 Brookes v. Heberd 664 Brooks v. Van Every 327 Brotherson v. Consalus 540 Bro wer v. Kingsley 309 Brown v. Bowen 458, 469 Brown v. Bradshaw 441, 511, 514 Brown v. Brown 480 Brown v. Colie ;.. 411 Brown v. Comstock 543 Brown v. Crim 417 Brown v. Frost 377, 378 Brown v. Haft" 630 Brown v. Masten 47 Brown v. Murray 66, 75 Brown v. N. Y. C. B. B. Co 334 Brown v. Nichols 731 Brown v. Richardson. . . 56, 444, 598, 605 Brown v. Rickets 472 Brown v. Saratoga R. R. Co , 85, 715 Brown v. St. John 47 Brown v. Sansome 385 Brown v. Seys 48 Brown v. Spear 643 Brownell v. Marsh 47 Brown v. Tousey 52 Brownell v. McEwen '. 437 Browning v. Paige 39, 40, 57, 61 Brownson v. Gifford 580, 628 Bruce v. Davenport 341 Bruce v. Pinckney 595, 613 Bruce v. Tilson 478 Bruce v. Westervelt 175, 178 Bruen v. Adams 48 Brumskill v. Giles 103 Brumskill v. James 13, 604 Brush v. Kohn 193 Brush v. Mullany 293, 655 Brasle v. Gilmer 676 Bruyn v. Comstock 217 Bryan v. Brennon 268 Bryant v. Bryant 160 Buchan v. Sumner 737 Buchanan v. Chesebrough. . .81, 199, 567 Buchanan v. Morrell 467 Buck v. City of Lockport 634 Buckingham v. Banks 71 Buckingham v. Minor 483 Buckhout v. Hunt 534, 535, 536 Bucklin v. Chapin 246, 254, 255, 257 266, 269, 534 Buckman v. Carnley 508 Budd v. Bingham 83 Budd v. Jackson 679 Buddington v. Shearer 408 Budlong v. Van Nostrand. . .130, 146, 211 Buel v. Gay ,236, 470, 471 Buffalo & N. Y. R. R. Co. v. Brainard, 204 TABLE OF CASES. XXXIX PAGE. Bulkeley v. Keteltas 38, 76, 172, 174 297, 506, 514 Bulkeley v. Smith 172, 458, 469 Bullard v. Van Tassell 26 Bullis v. Montgomery 635 Bullock v. Bogardus 533, 534 Bullock v. Smith 167 Bull winker v. Ryker. . .563, 607, 625, 628 Bulson v. Lohnes 294 Bump v. Betts 412 Bunten v. Orient Ins. Co 708 Bunten v. Oriental Mut. Ins. Co 220 Bunn v. Hoyt 194, 400, 417 Burger v. Baker, 58, 216, 218, 230, 707, 717 Burger v. White 126 Burgler v. Dubernet 718 Burhans v. Blanchard 491 Burhans v. Tibbits 193, 461 Burhans v. Van Zandt 620 Burkham v. Van Saun 683 Burnell v. N. Y. Cent. R. R. Co 171 Burnet v. Kelly 460, 462 Burnett v. Phalon 88, 281, 282, 421 Burnett v. Sanders 509 Burnett v. Westfall 456, 482, 500, 504 546, 675, 678, 680 Burnham v. De Bevorse 4, 77, 82, 83 Burns v. Erben 172, 174 Burrall v. Moore 5 Burrall v. Vanderbilt 728 Burroughs v. Oakley 340 Burt v. Powis 274 Burtch v. Nickerson 202 Burton v. Thompson 448 Bushnell v. Harford 475, 632 Butchers and Drovers' Bank, etc. v. Jacobson 2, 483, 485, 505, 595 Butler v. Bates 296 Butler v. Duncomb 591 Butler v. Gardner 507 Butler v. Kelsey 661, 662, 663 Butler v. Lee.. 220, 225, 323, 345, 584, 708 713 Butler v. Morris 527 Butler v. Truslow 314 Butterworth v. O'Brien 608 Butterworth v. Warth 417 Button v. Hudson River R. R. Co. . . 120 Button v. McCauley 410 Byas v. Smith 282 Byne v. Jackson 71 Byxbie v. Wood 608 Cady v. Fafrchild 444, 447 Cagger v. Gardner 732 Cahoon v. Bank of Utica 472 Calcraft v. Gibbs 448 Caldwell's Case 574 . Caldwell v. Lieber 472 Caldwell v. Murphy 184, 206 Caldwell v. New Jersey Steamboat Co 120, 124, 125, 126, 185, 187, 203 Calkins v. Barger 171 Calkins v. Isbell 477 Calkins v. Packer 718 Calkins v. Williams 490 PAGE. Cameron v. Freeman . .248, 251, 252, 280 340 Camp v. Bennett 635 Cambell v. Campbell '. . . . 480 Campbell v. Mesier 705 Campbell v. Perkins 636 Cancemi v. People 106 Candee v. Lord 24 Candee v. Ogilvie '.482, 486 Candler v. Pettit 386 Canfield v. Gaylord 621, 703 Canfield v. Sterling 476, 477 Cannam v. Farmer 113 Cannon v. Alsbury 407 Cannon v. State 400 Cannon v. Titus 48, 51 Carhart v. Blaisdell 534 Carnes v. Piatt. . . .172, 174, 175, 178, 179 185, 406 Carpenter v. Nixon 142 Carpenter v. New Haven R. R. Co. . 647 Carpenter v. Shelden 172 Carpenter v. Smith 163, 170 Carpenter v. Stilwell 179, 180 Carpenter v. Tuffs 37, 515 Carpenter v. Ward 133, 145, 147 Carpenter v. Willett 489 Carnahand v. Pond 538 Carnal v. People 110 Carnrick v. Myers 377 Carstens v. Barnstorf 742„ 747 Carswell v. Neville 156, 736 Carter v. Bennett 174 Carter v. Clark 26, 640 Carter v. Jones 112 Carter v. Lord Colrain 354 Carter v. XJppington 71 Carr v. Miner 414 Carr v. Wehrnan , 11 Caruthers v. Graham 661 Carey v. Philadelphia, etc., Petrol- eum Co 71 Cary v. Livermore 47, 52 Cary v. Marston 445 Case v. Belknap 528 Case v. Price 482, 500, 501, 503, 504 Casey v. Janes 315 Cassin v. Delany 411, 445, 448 Castanos v. Ritter 406 Castellanos v. Beauville 470 Caster v. Shipman 708 Castle v. Duryea 161 Castree v. Gavelle 410 Catlin v. Billings 471, 646, 669, 716 Catlin v. Gunter 166, 297 Catlin v. Hansen 408 Catlin v. Latson. . . .55, 189, 585, 641, 646 Cattell v. Simons 364 Cawley v. Knowles 25 Caykendoll, Ex parte 437 Cayuga County Bank v. Warden, 205, 514 Cazneau v. Bryant 656 Central Bank of Westchester County v. Alden.... 29 Central National Bank of N. Y. v. Arthur 142, 151, 275, 354 xl TABLE OF CASES. PAGE. Chadwick v. Brother .' 510 Chaffee v. Cattaraugus County Mut. Ins. Co . . .' 171 Chamberlain v. Dempsey. . .215, 216, 217 374, 583, 625, 709 Chamberlain v. Pratt 184, 205 Chambers v. Caulfield 412 Chambers v. Grantzon 199 Chambers v. Hadley's Heirs.' 73 Chambers v. Smith 360 Chamley v. Dunsany 606 Champion v. Plymouth Cong. Society, 725 Champlm v. Petrie 640 Champney v. Blanchard 446 Chancel v. Barclay 210, 416 Chapman v. Carolin 166 Chapman v. Foster 640 Chapman v. Lemon 2, 3, 484, 485, 653 Chapman v. Eawson 112, 113 Chappman v. Hatt 741 Chappel v. Chappel. . . .686, 693, 730, 732 Chappel v. Dann 376, 542 Chapin v. Potter 171, 174 Chase v. Edwards 71 Chautauqua County Bank v. Risley, 377 Chautauqua County Bank v. White, 418 Cheeney v. Arnold 130, 211, 291, 416 Cheesebrough v. Taylor 204, 225 Cheetham v. Lewis 29 Chemung Canal Bank v. Judson, 617, 729 Chesebrough v. House 19, 212 Chester v. Dickerson 207, 446, 447 Chittenden v. Empire Stone Dressing Co "569, 707 Chittenden v. Missionary Society . . . 519 Chichester v. Cande 704, 713, 725 Chouteau v. Rice 338 Christie v. Bloomingdale 418 Christy v. Christy 503 Christy v. Libby 597 Christopher v. Van Liew 724 Chubb v. Berry 271 Chubbuck v. Morrison 573 Church v. Church 475 Church v. Erben '. . . .333, 334 Church v. Freeman 11, 18, 260 Churchill v. Mallison 670 City of Aurora v. Cobb 113 City of New York v. Price 180 Clapp v. Hudson River R. R. Co. 411, 413 445, 448 Clapp v. Wilson 146, 149 Clark v: Brooks. .21, 24, 339, 396, 409, 418 420, 442, 571, 625 Clark v. Clark c35, 629 Clark v. Crandall 409, 447 Clark v. Dales 514 Clark v. Frazer 309 Clark v. Hall 698, 699 Clark v. Jaques 507 Clark v. Lyon 665, 666 Clark v. Parker 47, 55 Clark v. Richards 405 Clark v. Rowling 666 Clark v. Smith 543 Clark v. Staring 502, 503 PAGE. Clark v. Van Vranken 397 Clark v. Vorce 408 Clarke v. City of Rochester 498 Clarke v. Lord Abingdon 361 Clarke v. Saffery 130 Clarke v. Seton 361 Clarke v. Ward 435 Clarks v. Staring 555 Claudet v. Prince 25 Clayton v. Yarrington. .396, 409, 418, 420 442 Clements v. Gero w 687, 688 Clennell v. Lewthwaite 592 Clerk's Fees 545, 546 Clerk of Albany Co., Matter of 546 Cleaveland v. Hunter '.283, 291 Cleveland v. Porter 599, 731 Cleveland v. Strong 261 Clickmau v. Clickman 48 Clinton v. Eddy 45 Close V; Gillespey 713 Clum v. Smith 188, 437 Clussman v. Merkel 280 Cobb v. Cornish. . .199, 200, 201, 567, 568 569, 706 <"obb v. Thornton 80, 626, 722 Coddington v. Hunt 415 Codwise v. Hacker 251 Coe v. Coe 324 Coffin v. Cooper 367 Coffin v. Reynolds 79, 275, 297 Cogan v. Ebden 438 Cogswell v. Vanderberg 666 Cohens v. Virginia 592 Coit v. Bland 163, 620 Colden v. Knickerbacker 662 Coldsmith v. Marpe 587 Cole v. Perry 397, 411 Cole v. Reynolds 610 Colegate v. Marsh 50 Colegrove v. Harlem & New Haven R. R. Co 206, 408 Colegrove v. N. Y. & N. H. R, R. Co., 83, 84, 160, 163, 211 Coleman v. Chauncey 497 Coleman v. Second Av. R. R. Co 607 Coleman v. Southwick 411, 412 Coles v. Forrest 477 Colie v. Brown 450 Colie v. Tifft 396 Collier v. Munn 360 Collier v. Whipple 377 Collins v. Albany and Schenectady R. R. Co 411,412, 413 Collins v. Evans 528 Collomb v.Cald well, 235, 236, 470, 513, 558 Colver v. Van Valen 50 Colvin v. Brayden 639 Colvin v. Burnet 163, 408 Comfort v. Thompson 404 Commercial Bank of Albany v. Dun- ham 275 Commissioners of Charities v. Cotter, 480 Commissioners of Excise v. Hollister, 665, 666 Commonwealth v. Roby 399 TABLE OF OASES. xli PAGE. Commonwealth v. Ryan 105 Comstock v. Hadlyme Ecclesiastical Society il2 Comstock v. Halleck 236, 471, 486 Comstock v. Olmstead 534, 536 Conklin v. Bishop 156 Conklin v. Hill 186 Conaughty v. Nichols 608 Conger v. Hudson River R. R. Co. . . 530 538 Connoss v. Meir 655 Conolly v. Conolly 718 Conrad v. Williams 176, 403, 511 Conry v. Caulfield 606 Considerant v. Brisbane, 235, 236, 483, 513 Constantine v. Van Winkle 559 Conway v. Hitchins 260 Cook v. Dickerson, 585, 716, 718, 732, 733 Cook v. Kraft 739 Cook v. Litchfield 171 Cook v. N. Y. Floating Dry Dock Co., 456 497 Cook v. Pomeroy 595, 597, 647 Cook v. Staats 49 Cooke v. Beach 526 Cooke v. Berry 401 Cooke v. Passage 418 Cooke v. Smith 744, 746 Cooley v. Huntington 291 Coope v. Bowles 710 Cooper v. Astor 552 Cooper v. Metropolitan Board of Health > 489 Cooper v. Weed 510 Corbett v. Claflin 26 Corbett v. Ward 458, 469 Corbin v. George 507 Corbin v. Milton 403 Cornell v. Potter 503, 555 Corning v. Corning 140, 142, 191, 441 Corning v. Powers 700, 734 Cortland Co. Mut. Ins. Co. v. Lathrop, 508 Cor win v. Freeland 585 Corwiche v. Griffing 731 Cost v. Rose 650 Coster v. Merest 398 Costigan v. Cuyler 110 Cotes v. Smith 323, 708 Colt v. Sixth Avenue R. R. Co. . 160, 170 Cotton v. State 401 Cotton v. Thompson 81 Coughlan v. Dinsmore 182 Countryman v. Boyer 195 Court v. Jeffery 474 Courtois v. Harrison 530 Cowell v. Simpson 542 Cowen v. Village of West Troy 450 Cowenhoven v. City of Brooklyn. . . . 607 Cowing v. Howard 361 Cowles v. Cowles 604, 605 Cowperthwaite v. Jones 399 Cowperthwaite v. Sheffield 205 Cowton v. Anderson 666 Cox v. Kitchin 448 Coxhead v. Huish 112, 113 Coykerdall v. Baton 171, 407 Vol. Ill — f Coyle v. City of Brooklyn 405, 446 Crabtree v. Hagenbaugh 1 85 Crafts v. Union Mutual Fire Insur- ance Co 402 Craig v. Fanning 403, 733 Cram v. Bradford 259, 265, 578, 710 Cramer v. Benton 610 Crandall v. Beach 599 Crandell v. Cropsey 738 Crandall v. Hoysradt 478 Crane v. Holcomb 459 Crane v. O'Connor 738 Crary v. Goodman 610 Crary v. Norwood 236, 456, 513 Crary v. Sprague 409 Craig v. Hyde 607, 008 Craven v. Price 467 Crawford v. Kelly 487 Crawford v. Wilson 575 Creigbton v. Ingersoll 538, 541 Creuze v. Hunter 362 Crim v. Cronkhite 467, 621 Crittenden, Matter of 387 Crittenden v. Empire Stone Dressing Co 201 Crippen v. Brown 501, 504 , Crippen v. Ingersoll 506 Crocker v. Claughly 745 Croden v. Drew 646 Crofts v. Rockefeller 470 Croghan v. Livingston 699 Cromwell v. Van Rensselaer 47 Cronk v. Canfield 209, 421, 433, 571 Cronchv. Gridley 238 Crooke v. Mali 162 Crosbie v. Leary 84, 258, 298 Crouch v. Parker 209, 571 Crouse v. AValrath 213 Cruger v. Douglass 338, 571 Cruikshank v. Cruikshank 534, 535 Cruikshank v. Gardner 635 Crump v. Baker 360 Cullingworth v. Loyd 476 Culver v. Felt 39 Cumberland Coal Co. v. Hoffman Coal Co 457, 637 Cumings v. Morris 229, 609 Cunningham v. Cassidy 376 Cunningham v. McGregor 530 Cunningham v. Widing 542 Curteis v. Candler 479 Curtis v. Colston 1 Curtis v. Corbitt 687 Curtis v. Dutton 503 Curtis v. Fay 141 Curtis v. Leavit 457 Curtis v. March 53 Curtis v. Rochester and Syracuse R. R. Co 120 Currie v. Cowles, 313, 315, 323, 332, 333 541, 710 Cusson v. Whalon 5, 28 Cutler v. Biggs .' 50 Cutler v. Wright 85, 231 Cuyler v. Coats 458, 559 Cythe v. La Fontain 610 xlii TABLE OF CASES. PAGE. Dain v. Wycoff 412, 592 Dalby v. Pullen 374 Dale v. Heald 67 Daly v. Matthews 686, 688 Dana v. Howe 333 Dana v. Tucker. . . .186, 188, 399,437, 439 Daniels v. Lyon 458, 469, 604 Darrow v. Miller 595 Darston v. Earl of Oxford 359 Dascomb v. Buffalo and State Line E. R. Co 408 Daubeny v.' Coghlan 389 Dauchy v. Allen 37 Davenport v. Ludlow 541 David v. Frowd 365 Davidson v. Brown 67 Davidson v. Stanley 407 Da vies v. Lowndes 542 Davis v. Allen 217 Davis v. Cooper 489 Davis v. Davis 388 Davis v. Daveril 398 Davis v. DafEe 456 Davis v. Glean 492 Davison v. Schooley 491 Davis v. Mayor, etc., of N. Y 78, 154 Davis & Palmer v. Mayor, etc., of N. Y 365 , Davis v. Morris 690, 691 Davis v. Stone 525 Day v. Beacli 558 Day v. Both 206 Dayton v. Wilkes 155 DeAgreda v. Mantel . . .634, 636, 700, 722 724, 734, 737 Dean v. Eldridge 600 Dean v. Hewitt 406, 407 Dean v. Turner 70 Dean v. Williams. . . , 501, 555 Deas v. Harvie 509 Decker v. Gardiner 458, 469, 604 Decker v. Johnson 719 Decker v. Judson 27, 75, 606 Decker v. Mathews 181, 205 Decker v.' Miller 479 Dederick's Adm'rs v. Richley . . .241, ^.52 733 Deems v. Crook 406 Deeth v. Purdy 515 DeFiganiere v. Young 745 DeForest v. Baker 614, 638, 711 DeGaillon v. L'Aigle 301, 661, 664 DeGroot v. Fulton Fire Ins. Co 206 Deland v. Hiett 742 Deland v. Richardson 444 Delaware v. Ensign 687 Delavan v. Boardman 432 DeLavergne v. Evertson 473, 741 DeLeyer v. Michaelis 402 Demelt v. Leonard 411 Deming v. Bailey 195 Deming v. Post 333, 708 DeMontmorency v. Devereaux . .474, 476 Den v. Fen ,54. Denman v. Prince 604 Dennett v. Dow 152 PAGE. Dennison v. Dennison 506 Denton v. Denton 731 Depew v. Leal 650, 655 DePeyster v. Hildreth 667 Depeyster v. Columbian Ins. Co. 406, 409 DeRemer v. Cantillon 478 DeRider v. Schermerhorn 604 DeRose v. DeRose 475 Detillin v. Gale 477 Detmold v. Drake 11 Devendorf v. Dickinson. . 530 Devendorf v. Wert 445, 447 DeWarren v. State 72 Dewey v. Field 252, 262 Dewey v. Stewart 485 Dewey v. Stuart 483 DeWitt v. Swift 500, 501 Dexter v. Clark 620 Dexter v. Gardner 495 Diblin v. Murray 413 Dicas v. Stockley 542 Dickerson v. Wason. . . .209, 433, 567, 571 Dickinson y. Smith 724 Dickinson v. Kimball 12, 44, 57, 214 Dickinson v. Mitchell 250, 252, 265 Dickson v. Broadway & Seventh Ave- nue R. R. Co., 224, 396,449,450, 403, 444 Dickson v. McElwain 506 Diddle v. Diddle 252, 581 Didier v. Warner 651 Diefendorf v. House 27 Dignam v. Ibbotson 31 Dignam v. Mostyn 30, 31 Dillaye v. Hart 656, 661 Dinehart v. Wells 461 Disbrow v. Folger 574 D'lvernois v. Leavitt 64, 348, 686 Dix v. Palmer, 515, 552, 587, 647, 668, 720 Dixon v. Olmius 390 Dobson v. Pearce 610 Dockstader v. Sammons 518 Dodd v. Curry 2, 484 Dodge v. New York & Washington Steamship Co 410, 416 Dodge v. Waterbury 239 Doe d. Antrobus v. Jepson 31 Doe d. Fish v. McDonnell 46 Doe d. Pugh v. Price 38 Doe v. Roe 38, 54, 404 Doke v. Peek 333, 553, 587, 721 Dollner v. Gibson 508 Dolph v. White 596 Dolsen v. Arnold 159, 406 Dominick v. Eaker 161 Dommett v. Bedford 473 Domville v. Berrington 376 Donaldson v. Jackson 509 Doncaster v. Cardwell 30, 38 Donley v. Graham 396 Donne v. Lewis 704, 705 Donnelly v. Libby 457 Donner v. Palmer 399 Donohue v. Hicks 433 Doolittle v. Eddy 461 Dorlon v. Lewis . . .274, 275, 324, 333, 422 Dorr v. Fenno 399 TABLE OF CASES. xliii Dorr v. Noxon 307 Doty. v. Brown 319, 320, 457 Doubleday v. Newtoji 347 Dougherty v. Morgan 701 Douglass v. Tousey,142, 186, 192,194, 412 Douw v. Rice 397 Dow v. Platner 688 Dowling v. Bush 502, 504, 555 Downing v. Kelly 444 Downing v. Mann 569 Downing v. Marshall 481, 494, 499 Downs v. N. Y. Central R. R. Co 130 Downs v. Sprague 177 Dows v. Congden 339 Dows v. Greene 625 Dows v. Montgomery 314 Dows v. Parker 509 Dows v. Rush 177, 178, 179, 203, 624 Drake v. Cockroft 512 Drake v. Pickford 30 Draper v. Day 19 Draper v. Stouvenel 446 Dresser v. Ainsworth 409 Dresser v. Brooks 552, 560, 587 Dresser v. Van Pelt 574 Dresser v. Jennings 497 Dresser v. Wickes 469, 558 Drew v. Comstock 486, 488 Droz v. Lakey 704 Drummond v. Husson 522, 596 Duberly v. Gunning 71, 412 Dubois v. Beaver 191 Dudley v. Boles 150 Dudley v. Robins 415 Duel v. Agan 566 Duff v.Lyon 137,207, 225 Duffy v. Duncan 479, 518 Duguid v. Ogilvie 280, 283 Duke v. Barnett 340 Dunbar v. Hitchcock 491 Dunckle v. Kocker 210 Dunham v. Sherman 504 Dunham v. Simmons 205 Dunham v. Waterman 687, 691, 693 Dunkin v. Vandenburg 745 Dunlop v. Patterson 176 Dunn v. People 144, 176 Dunnigan v. Crummey 277 Dunning v. Bank of Auburn 510 Durant v. Cook 48 Durell v. Mosher 106 Durf ee v. Eveland . ■/■■ 186 Durgin v. Ireland 205 Durkee v. Marshall 178 Dustin v. Newcomer 478 Dutch Reformed Church v. Wood . . 655 Dutcher v. Wilgus '. 259, 261 Dwight v. Enos 624 Dyckman v. McDonald 495, 498 Dyer v. Potter 478, 479 • Eagle v. Alner 430 Eagle Bank v. Holly 60 Eagleson v. Clark 473 Eakin v. Brown 286 Earl of Bath v. Earl of Bradford 361 PACE. Earl of Fingal v. Blake 573 Earle v. Barnard 586, 714, 718 East India Co. v. Glover 661 East River Bank v. Hoyt.. . 404, 441, 447 448 East River Bank v. Kennedy 450 Eastburn v. Kirk 454, 472 Easton v. Smith 541 Eastwood v. People 439 Eaton v. Alger 121 Eaton v. Dickinson 700 Edgell v. Hart 172 Edie v. East India Co 398, 440 Edmondson v. Machell 396, 418 Edmondson v. Moseby 701 Edwards v. Ninth Avenue R. R. Co.. 455 Eglin v. Sanderson 480 Ehle v. Bingham 503 Ehle v. Moyer 705 Eisemann v. Swan 196, 198, 564 Eldon v. Haig 659 Eldridge v. Reed 403 Elledge v. Todd 186, 399 Ellert v. Kelly 635 Elliott v. Pell 606 Ellis v. Jones 47, 52, 666, 668 Ellis v. Messerire 541 Ellis v. Short 408 Ellis v. Smith 742 Ellis v. Trusler 25 Elsworth v. Campbell 665, 731 Ellsworth v. Gooding . .436, 485, 510, 515 551 Ellsworth v. Lockwood 376 Ellsworth v. Thompson 658, 664, 665 Elmore v. Thomas. .281, 299, 321, 340, 341 Elson v. New York Equitable Insur- ance Co 552, 553, 587, 720 Elston v. Schilling 666 Elton v. Larkins 146 Elwell v. Chamberlin. .111, 112, 113, 114 115, 118 Elwell v. Dodge 223 Elwood v. Western Union Telegraph Co 159, 170 Ely v. Holton '. . 508 Ely v. McNight 434 Embury v. Connor 245 Emery v. Emery 675 Emery v. Pease 607, 608 Emmet v. Bowers 336 Emmons v. New York and Erie R. R. Co 488 Englis v. Furniss 700, 702 Engs v. Dvering 45 Eno v. Crooke 634 Enos v. Eigenbrodt 223, 225, 319 Enos v. Thomas 259 Erben v. Lorillard 207, 409 Ernst v. Hudson River R. R. Co. 161, 162 173,, 407 Eschbaugh v. Syracuse Distilling Co. 405 Esdaile v. Stephenson 313 Esdale v. Oxenham 542 Esmond v. Van Benschoten 36 Estus v. Baldwin 508, 518, 519, 634 xliv TABLE OF CASES. PAGE. Eustace v. Tuthill 462 Evans v. Ellis 541 Evans v. Lichtenstein 5, 28, 56 Evans v. Millard 418 Evans v. Peacock 474 Evans v. Rees 704 Evans v. Vance 474 Everard v. Warren 358 Everett v. Youells 399 Everson v. Gehnnan. . .517, 674, 675, 684 Evertson v. Givan 386, 391 Evertson v. Sawyer 738 Every v. Merwin 280 Ewen v. Terry 744 Fabrilius v. Cock 414 Fairchild v. Chase 410 Fairweather v. Satterly 509 Fake v. Edgerton 68 Farewell v. Chaffey 448 Farmer v. Mountfort 31 Farmers and Manufacturers' Bank v. Whinfield 396, 409 Farmers and Mechanics' Bank v. Joslyn 11, 19, 202, 211 Farmers' National Bank of Fort Ed- ward v. Leland 712 Farnam v. Despard 60 Farnham v. Hildreth 730 Farrand v. Bouchell 74 Farish v. Corlies 61 Fash v. Byrnes 400 Fasnacht v. Stehn 12, 215, 613 Fassett v. Tallmadge 215, 669 Faulkner v. Mayor, etc., of Brooklyn, 37 515 Faviell v. Eastern Counties Railway Co 246, 255 Fearns v. Young 360 Feeter v. Harter 261 Feise v. Parkinson 415 Fell v. Tyne 25, 37 Fellows v. Emperor 416 Fenner v. Agutter 381 Fenton v. Browne , 474 Ferguson v. Bassett 195 Ferguson v. Ferguson 443 Fermor v. Dorrington 397 Fero v. Van Evra 630 Ferrand v. Herbeson 56, 645 Ferris v. Aspinwall, 234, 237, 510, 597, 611 Fetridge v. Wells 472 Fettretch v. McKay 612, 613, 712 Ferussac v. Thorn 669 Ficknor v. Kennedy 600 Fidler v. McKinley 413 Field v. Hawxhurst 370 Field v. Hitchcock 360 Field v. Paulding 752 Fielden v. Lahens 326, 432, 604 Fieldings v. Mills 680 Fielder v. Higginson 474 Fildes v. Hooker 367 Finch v. Brown 411 Finch v. Calvert 500, 504 Finley v. Jones 532 PAGE. Fire Department v. Harrison 10, 18 First Baptist Church in Brooklyn v. Brooklyn Fire Ins, Co 181 First National Bank of Canandaigua v. Garlinghouse 685 Fish v. Crane 531, 5S3 Fish v. Emerson 703, 724, 725 Fish v. Smith 185 Fish v. Forrance 495 Fish v. Wright 260 Fisher v. Hepburn 732, 733 Fisher v. Hunter . . / 456, 487, 488 Fiske v. Anderson 734 Fitch v. Gardenier 541 Fitch v. Livingston 458, 728 Fitzhugh v. Truax 47 Fitzhugh v. Wiman 623, 625 Fladong v. Winter 343 Fleetwood v. Green 340 Fleming v. Gilbert 447 Fleming v. Hollenbeck 404, 416 Fleming v. Smith 194, 404 Fletcher v. Sondes 591 Fletcher v. Webb 448 Flint v. Richardson 498 Flower v. Walker 366 Flowers v. Welch 33 Floyd v. Jayne 416 Fly'nn v. Hudson R. R. R. Co. . .561, 644 648 Fobes v. Meeker 282 Folger v. Fitzhugh 435 Foot v. Gumaer's Executors 536 Foster v. Smales 659 Foot v. Sprague 610 Foot v. Wiswall 203 Foote v. Lathrop 731 Forbes v. Frary ,284, 285 Forbes v. Meigs 703 Ford v. David 596, 597, 611, 641 Ford v. Ford 276, 290, 629 Ford v. Harrington 541 Ford v. Monroe 558 Ford v. Niles 124, 125, 415 Fordham v. Smith 314 Forrest v. Forrest 171, 191, 260, 285 297, 335, 350, 353, 388, 391 396, 409, 420, 629 Forrest v. Kissam 138 Forsyth v. Edminston 604 Forsyth v. Ferguson 524 Fort v. Collins 158 Fort v. Gooding 496, 534, 535 Fort v. Palmerton 528, 529 Foster v. Agassiz 510 Foster v. Bowen 482, 527 Foster v. Bryan 308, 316 Foster v. Cleveland 518 Foster v. Smith 301, 661, 662 Foster v. Udell 665 Foster v. Wood 601 Fountain v. Anderson 66 Fountain v. Pettee 205, 446 Fowler v. iEtna Ins. Co 404, 443 Fowler v. Coster 113 Fowler v. Hay 60, 515 TABLE OF CASES. xlv Fowler v. Houston 495 Fowler v. Starr 529 Fox v. Fox 495, 496, 544 Fox v. Gould 495, 498 Fox v. Nellis 525 Foxall v. Banks 463 Fraas v. Paraviciui 31 France v. Hamilton 713, 721, 739 Francis v. Webb 543 Franklin v. Beamish 393 Franklin v. Keeler 386 Franklin v. Van Cott 370 Frascliieris v. Henriques. . .188, 195, 196 Frase'r v. Phelps 282 Frazer v. Phelps 287 Freeland v. Mannahan 473 Freligh v. Brink 686, 687 Freeland v. Howell 67 Freeman v. Atlantic Mutual Ins. Co. 250, 251, 252 Freeman v. Auld 733 Freeman v. People, 106, 107, 110, 111 189, 196 Friuk v. Morrison. 731, 749 Frisbie v. Riley 704 Friswell v. King 542 Frost v. Koon 688 Frost v. McCargar 148, 149 Frost v. Warren 172, 173 Fry v. Bennett, 9, 64, 69, 112, 113, 167 168,211,235,405,411,444 700, 725, 726, 727 Fuller v. Conde 288, 298, 466 Fuller v. Squire 468 Fuller v. Van Geesen 564 Fullerton v. Taylor 80, 598 Fulton v. Brunk 514 Fyler v. Fyler t 474, 476 Gains v. Bilson 25 Gale v. Hoysradt 157, 441 Gale v. Rubbins 655 Gale v. Wells 519 Gallagher v. Bagan, 459, 471, 504, 529 549 Gallarati v. Orser 623 Galloway v. Barr 478 Gallt y. Finch 229, 726 Gamble v. Taylor 38, 76, 297, 514 Gandall v. Finn 686 Gandolfo v. Appleton, 133, 140, 145, 147 Gansevoort v. Nelson 533, 536 Garcie v. Sheldon 245, 246, 255, 269 Gardner v. Bartholomew . . . .' 149 Gardner v. Clark 174 Gardner v. Gardner 480 Gardner v. McEwen 173 Gardner v. Ogden 518 Gardner v. Picket 406 Gardner v. Rverson 402 Gardner v. Turner 103, 108 Garighe v. Losche 354 Garner v. Hannah 87, -203 Garr v. Mairet 540 Garrison v. Pearce 525 Garvey v. Jarvis 609, 742 PAGE. Gaskin v. Anderson 699 Gaskin v. Meek 317 Gaspar v. Adams 700 Gay v. Gay 725 Geach v. Ingall Ill, 112 Geib v. Icard 45, 46 Gellatly v. Lowrey 411 Gellerv. Hoyt 725 Genet v. Howland 18 Genter v. Morrison 174 George, Count Joannes v. Fisk. .656, 661 Geraud v. Stagg 635, 636 Gere v. Supervisors of Cayuga 685 Germond v. Germond 475 Getty v. Hudson River R. R. Co 231 Getzler v. Saroni 701 Giberton v. Fleischel 62 Gibson v. Pearsall 280, 291 Gibson v. Van Derzee 602 Gilbert v. Beach . .198, 199,200, 565, 567 Gilbert v. Rounds. . 301, 302, 662 Gilbert v. Sheldon 143 Gilchrist v. Comfort 442 Gildersleeve v. Halsey 552 Gillet v. Mead 408 Gilligan v. New York & Harlem R.R. Co 443 Gillilan v. Norton 603 Gilliland v. Campbell 288, 298 Gilliland v. Morrell 401 Gillingham v. Waskett 31 Gilman v. Gilman 360 Gilman v. Oliver 501 Gilman v. Van Slyck 745 Gilmanton v. Ham 399 Gilmartin v. Smith 323, 553, 587, 721 Ginger v. Pycroft 33 Giraud v. Beach 508, 509 Glackin v. Zeller 466 Glann v. Younglove 624 Glentwonh v. Mount 520 Glover v. Cuming 640 Godfrey v. Williamsburgh City Fire Ins. Co 249, 250, 251, 252, 263 Godin v. Bank of the Commonwealth, 175 181 Godding v. Porter 308 Goelet v. Ross ....'. 181 Gohlston v. Gohlston 185 Goldsmith v. Marpe 553, 721 Good v. Blewitt 363, 365 Goodall v. Thurman 413 Goodell v. Jackson 591 Goodrich v. Downs 210 Goodtitle v. Otway 591 Goodwin v. Gibbons 443 Goodwin v. Miller 345 Goodyear v. Baird, 54, 57, 62, 214, 500, 559 Goodyear v. Brooks. .4,215, 249, 250, 259 261 Gorham v. Ripley 533, 535 Gori v. Smith 498 Gormly v. Mcintosh 457, 636 Goss v. Turner 115, 116, 125 Gott v. Cook 499, 500 Gott v. Owen 260 xlvi TABLE OP CASES. PAGE. Gould v. Carpenter ... 2, 3, 4§5, 505, 596 Gould v. Chapin 495, 498, 573 Gould v. Gager 377 Gould v. Mortimer 378 Gould v. Torrence 734 Gowland v. De Faria 474 Graham v. Cammann 202 Graham v. Chrystal 141, 206, 320 Graham v. Dunigan 206 Graham v. Golding 251, 342 Graham v. Lynn 705 Graham v. McCoun 583 Graham v. Pinekney 668 Graham v. Wood 271, 272 Grant v. Morse 315, 327 Grant v. Van Dei-cook 625, 730, 732 Grantman v. Thrall 536 Graser v. Stellwagen. . 179, 182, 185, 407 684 Graves v. Blanchard . . 258, 288, 298, 350 471 Graves v. Graves 475 Graves v. Woodbury 74'4 Gray v. Durland 403 Gray v. Fisk. . 275, 289, 324, 333, 398, 400 Gray v. Fox 265 Gray v. Hannah 521, 524 Gray v. Robjohn 493 Grazebrook v. McCredie 674 Greasonv. Keteltas. . 11,18,212,213 008 " 631 Greaton v. Smith 139, 142 Great Western Turnpike Co. v. Loomis., 137,140, 211 Greatwood v. Sims 401 Green v. Bliss. . . . 188, 192, 193, 194, 437 Green v. Brown 153, 286 Green v. Hearne 301, 661 Green v. Burke 511, 743 Green v. Hudson River R. R. Co., 175, 447 Green v. Monks 313, 667, 382 Green v. Telfair 185, 187 Green v. Willis 57 Greene v. White 185, 406 Greenough v. Bccles _. . . 152 Gregg v. Taylor 389 Gregory v. Campbell 388, 390, 392 Gregory v. Tuffs 403 Gregory v. Reeve 475 Greton'v. Smith : 137, 211 Greville v. Chapman 139 Gridley v. Gridley 610 Griffin v. Brown 459, 466 Griffin v. Cohen 56 Griffin v. Cranston . . .' 216, 226 Griffin v. Dominguez 77 Griffin v. Griffin 475 Griffing v. Slate' 321, 322, 710 Griffiths v. De Forest. . 675,676, 678, 679 Griffith v. Hadley 376 Griggs v. Howe 204 Grimm v. Hamel 144, 207 Grinnell v. Phillips 399 Griscom v. Mayor of New York City, 450 Griswold v. Griswold 674 Griswold v. Sheldon 172, 173 PAGB. Griswold v. Fowler 376 Grosvenor v. Allen 738 Guilhon v. Lindo 467 Great Falls Manu'f Co. v. Mathes. . . 414 Gurnee v. Hoxie 7, 13, 27, 61 Gurney v. Kenny 149 Gurney v. Smithson 435 Haase v. N. Y. Cent. R. R. Co. . . .320, 582 Hackett v. Richards 82 Hackley v. Hastie 186, 398 Hadden v. N. Y. Silk Manufacturing Co 614 Haddrick v. Heslop 27 Hager v. Danforth.' 487, 512, 554 Hager v. Hager 177, 178, 400 Haggart v. Morgan ■ 184, 206 Hahn v. Van Doren .411, 525 Haight v. Holcomb 541, 542, 544 Haines v. Davis . . .12, 54, 57, 62, 214, 642 Hakes v. Peck 488, 520 Hale v. Cove 399 Hale v. James 475 Hall v. Ayer 541, 542 Hall v. Dwinell 76 Hall v. Emmons 520, 521, 634 Hall v.Hall 610 Hall v. Hodskins 461 Hall v. Lindo 470, 483 Hall v. Morrison 218 Hall v. Prentice 495 Hall v. Stone 664 Hallenbeck v. Miller 489 Hallett v. Righters . . . .651, 715, 730, 734 Halsey v. Flint 634 Halsey v. Watson 417 Hamed's Case 721 Hamil v. Grimm 666 Hamill v. Willett 441 Hamilton v. Butler 485, 486 Hamilton v. Morris 580 Hamlin v. Boughton 749 Hammersley v. Barker 529 Hamersley v. Hamersley 478 Hammond v. Bush 691, 694 Hampson v. Brand wood 472 Hancock v. Hancock 617, 705, 709 Hanel v. Baare 500 Haner v. Bliss, 246, 257, 259, 269, 270, 271 Hanford v. Artcher 444 Hanford v. McNair 51, 669 Hanna v. Dexter 487, 503, 555 Hannah v. McKellip 148 Hannaf ord v. Holman 659 Harbeck v. Vanderbilt 742 Hardenburgh v. Crary 274 Harding v. Barney 406 Harebottle v. Placock 399 Haring v. New York and Brie R. R. Co 170, 443 Harlow v. Hamilton 44 Harman v. Brotherson 635 Harmony v. Bingham 277, 297 Harnett v. Johnson 112 Harper v. Chamberlain 469 Harper v. Lamping 73 TABLE OF CASES. xlvii PAGE. Harriott v. New Jersey R. R. and Transportation Co 457, 636, 637 Harrington v. Bigelow 417 Harrington v. Higham 13, 604 Harris v. Clark 338, 436, 571, 611 Harris v. Fly 381 Harris v. Hammond 595 Harris v. Jones 529 Harris v. Kemble 380 Harris v. Mead 250, 252, 265 Harris v. Northern Indiana R. R. Co. 179- Harris v. Norton 294, 309 Harris v. Palmer 744 Harris v. Panama R. R. Co 205, 511 Harris v. Wilson 406 Harris v. Youman 632 Harrison v. McGehee 399 Harrison v. Wood 620 Hart v. Brand 478 Hart v. City of Brooklyn 481 Hart v. Hudson 277, 297 Hart v. Renss. & Saratoga R. R. Co., 206 Hart v. Trotter 267 Hartman v. Proudfit 428 Hartness v. Boyd 57, 301 Hartshorn v. Gelston 100 Hartwell v. Colvin 364 Harvey v. Jones 399 Harvey v. Harvey 371 Harvey v. Wood 743 Harvey v. Rickett 186 Harvey v. Skillman's Executor 535 Hasbrouck v. Ehrich 64 Hastings v. Palmer 124 Hatch v. Fogerty 224 Hatch v. Pryor 280 Hatch v. Wolfe 265 Hatcher v. Rocheleau 718 Hathaway v. Helmer 105, 106 Haupt v. Pohlmann 174, 179, 407 Havemeyer v. Cunningham 199, 567 Haviland v. White 522 Hawley v. Bradford 475 Hawley v. Hanchet 28 Hawkins v. Avery 259 Hayden v. Palmer 203, 207 Hayes v. Brierly 651 Hayley v. Grant 68 Haynes v. Mosher 500, 501, 555 Haynes v. Powell 49 Hays v. Berryman 68, 656, 667 Hazard v. Spears 446 Hazen v. Thurber .' 475 Head v. Head 420 Healy v. Gilman 239 Healy v. Preston 692 Heane v. Battersby 51 Heath v. Barmour 461, 462 Heath v. Conway 399 Heaton v. Ferris 462 Hecker v. Hopkins 112 Hecker v. Mitchell 613 Hedges v. Cardonnell 388 Hedges v. Hudson River R. R. Co. . . 171 Heerdt v. Wetmore, 88, 204, 281,282, 287 290, 296 PAGE. Heinemann v. Waterbury. .323, 586, 714 Heidenheimer v. Wilson 210 Hemiup, Matter of 312, 378, 381, 382 Henderson v. Jackson 233, 457 Hendricks v. Bouck 235, 487, 513 Hendricks v. Carpenter 12, 214, 668 Hendrickson v. Kingsbury 186 Henley v. Philips 480 Henlow v. Leonard 186 Henry v. Bow 558, 587 Henry v. Lowell 126, 416 Hepburn v. Dunlap 340 Hereforth v. Hereforth 312 Herring v. Hoppock 181 Herov v. Kerr 216, 218 Heskette v. Braddock 105, 108 Hewitt v. Commonwealth 75 Hewitt v. Ferneley 398 Hewitt v. Howell 35, 655 Hewlett v. Brown 503 Hewlett v. Cruchley 399 Heyde v. Heyde 581 Heydon's Case 189 Heyer v. Deaves 274, 372 Hicks v. Brennan 502, 555, 734 Hicks v. Foster 405 Hicks v. Waltermire 441, 515 Higbie v. Westlake 518 Higgins v. Wright ■. . 337 Highland Bank v. Wynkoop 406 Hildebrant v. Crawford 470 Hill, Ex parte 186 Hill v. Beebe 407 Hill v. Covell 196, 198, 299, 564 Hill v. Grant 315 Hill v. McCarthy 212 Hill v. McReynolds 578, 655 Hill v. Northrop 678, 705, 731 Hill v. Simpson 2, 3, 457, 595 Hill v. Smith 507 Hill v. Yates 397 Hilliker v. Hathorne 630 Hinckley v. Boardman 559 Hinde v. Tubbs 396 Hinds v. Myers 458, 469, 471 Hinds v. Woodbury 640 Hinman v. Bergen 487 Hinman v. Hapgood 550 Hitchcock v. Giddings 472 Hoare v. Johnstone 354 Hoard v. Garner 524 Hodges v. Cooper 179, 181 Hodges v. Templer 704 Hoffman v. iEtna Fire Ins. Co 428 Hoffnung v. Grove 553, 587, 718, 721 Hogan v. Cregan 178 Holbrook v. Utica and Schenectady Railroad Co 120, 181 Holbrook v. Wilson 172, 203 Holdane v. Butterworth 406 Holdridge v. Scott 531, 532 Holley v. Glover 291, 352 Hollingham v. Head 135 Hollingsworth v. Shakeshaft 473 Hollister Bank of Buffalo v. Vail 339 342, 571, 588 xlviii TABLE OF CASES. Holmes v. Anderson 146 Holmes v. Bennett 261 Holmes v. Honie 598 Holmes v. Remsen 619 Holmes v. Slocum 268 Holtscomb v. Rivers 359 Holtsinger v. National CornExchange Bank 444 Honeywell v. Burns 528 Honner v. Morton 594 Hoodless v. Brundage 467 Hoogland v. Wight 217, 314 Hooker v. Rogers . .65, 67, 70, 71, 73, 77 Hopkins v. Grinnell 447 Hopkins v. Nelson, 686, 688, 690, 691, 693 Hoppock v. Cottrell 728 Horn v. Doody 655 Hornby v. Gordon 155 Hornfager v. Hornfager 508 Horton v. Horton 186 Horton v. Moot 175 Hosack v. Rogers 479 Hotaling v. Marsh 494, 499, 729 Hotchkins v. Hodge 209, 433, 571 Hotchkiss v. Banks 524 Hotchkiss v. Mosher 314 Hough v. Brown 179 Houston v. Williams 611 Howard v. Freeman 77, 401, 625 Howard v. Rome and Turin Plank Road Co 495, 496 Howe -v. Hasbrouck 48 Howe v. Lloyd 298, 531, 532, 535 Howe v. Muir 288, 498 Howell v. Barker 541 Howell v. Biddlecom 314 Howell v. Denniston 732 Howell v. Kinney 317 Howell v. Ransom 541 Howes v. Barber 503 Howland v. Willetts 186, 206, 398 Hoxie v. Greene. . .111, 112, 113, 118, 209 433 Hoyt v. Blain 703 Hoyt v. Hudson 743 Hoyt v. Lynch , 142 Hoyt v. Sheldon 87 Hoyt v. Thompson's Executors 400 Hubbell v. Meigs 605, 635 Hubble v. Osborn 126, 286 Huber v. Lockwood 456 Hudson v. Caryl 10 Huff v. Freeman 71 Hughes v. Mulvey 587 Hughes v. Wood , 732 Hulbert v. McKay 304, 370 Hulce v. Sherman 338, 334, 707, 708 Hulett v. Whipple 739 Hume v. Scott . . . .■ 144 Humiston v. Ballard 457, 636 Hunt v. Bank of Hanover 637 Hunt v. Bennett 172, 175, 410 Hunt v. Bloomer . .202, 221, 222, 225, 317 318, 330, 423, 427, 429, 450 Hunt v. Burrel 447 Hunt v. Fish 446 PAGE. Hunt v. Grant 725 Hunt v. Hoboken Land and Improve- ment Co • 635 Hunt v. Hudson River Fire Ins. Co. . 203 Hunter v. Lester 734 Hunt v. Wallis 666, 668 Hunt v. Mails 60 Hunt v. Maybee 206 Hunt v. Middlebrook 494 Huntingdon v. Claffin 209, 434 Huntington v. Conkey. .111, 112, 113, 118 Hunn v. Norton 362, 468, 473, 480 Hurd v. Leavenworth. .607, 650, 646, 663 Hurtin v. Hopkins 405 Husted v. Dakin 370, 376 Hutchinson v. Birch 593 Huxford v. Bogardus 731 Hyatt v. Pugsley 626 Hyatt v. Trustees of the Village of Rondout 194 Hyatt v. Wood 447 Hyde v. Wroughton 313 Hyland v. Sherman 206 Held v. Weeks 25 Ihl v. Forty second Street, etc., R. R. Co 160 Illinois & Mississippi Telegraph Co., 186 Ingersoll v. Bostwick 624, 729, 732 Ingerson v. Miller 412 Ingraham v. Gilbert 306 Ingram v. Robbins 689 Ireland v. Litchfield 471 Irving Bank v. Palmer 523 Irving v. De Kay 480, 499 Irwin v. Rogers 481 Irwin v. Deyo 501, 502 Iselin v. Graydon 493 Ison v. Fowen 659 Ives v. Miller 522, 597 Ives v. Vandewater 251 Jackett v. Judd . . .449, 456, 483, 496, 511 512 Jacks v. Mayer 25 Jackson v. Anderson 549 Jackson v. Bartlett 742 Jackson v . Benedict 741 Jackson v. Bowen 743 Jackson v. Brownson 34 Jackson v. Cator 478 Jackson v. De Forest 249 Jackson v. Dickenson 417, 438 Jackson v. Fassitt 421, 435 Jackson v. Fitzsinimons 200, 568 Jackson v. Garnsey 508 Jackson v. Hooker 417 Jackson v. Ives 294 Jackson v. Jackson 157 Jackson v. Keller 508 Jackson v. Kinney 417 Jackson v. Laird 417 Jackson v. Law 742 Jackson v. Lewis 140 Jackson v. Malin 66, 401, 416 Jackson v. Marsh 396 TABLE OF CASES. xlix PAGE. Jackson v. McBumey 483 Jackson v. Middleton 738 Jackson v. Packard 176, 178 Jackson v. Pell 514 Jackson v. Pinkney 76 Jackson v. Rattlebone 662, 664 Jackson v. Roe 402 Jackson v. Second Avenue R. R. Co., 174 Jackson v. Shaffer 743 Jackson v. Timmerman 406, 407 Jackson v. Wakeman 68 Jackson v. Walker 719 Jackson v. Warford 402 Jackson v. Webb 529 Jackson v. Williamson 437 Jacobsohn v. Belmont 195, 518 Jacobson v. Figaniere 494 Jaeger v. Kelly 409, 445 James v. James 650 James v. Morey 414 Jansen v. Acker 158 Jansen v. Tappen 259, 261 Jaqnes v. Greenwood 641, 735 Jaques v. Methodist Church 338 Jaques v. Trustees of M. E. Church. . 339 Jarvis v. Felch 6 Jarvis v. Hatheway 405 Jay v. DeGroot 714 Jenks v. Payne 31, 59 Jenkins v. Eldredge 698 Jenkins v. Hiles 340 Jennings v. Asten 661, 662, 664 Jennings v. Fay 487 Jennings v. Holbert 37 Jennings v. Jennings 372 Jeudwine v. Alcock 367 Jewett v. Crane 733 Jerome v. Boeram 508 Jerome v. Scudder 630 Jesson v. Brewer 704 Joannes v. Day 595 Johnson v. Carnley 624, 728 Johnson v. Everett 342, 347 Johnson v. Farrell 621, 637, 680 Johnston v. Fellerman 691 Johnson v. Lynch 46, 51, 52 Jolinson v. Mcintosh 408, 411 Johnson v. People 144 Johnson v. Perry 399 Johnson v. Rogers 48 Johnson v. Sagar 676, 679, 680, 706 Johnson v. Smith 599, 600, 601 Johnson v. Stanton 463 Johnson v. Taber 472 Johnson v. Whitlock. . 210, 222, 223, 306 318, 320, 321, 330, 450 Jones v. Butler 564, 607 Jones v. Case 2, 485 Jones v. Chun e 660, 664 Jones v. Cuyler 239 Jones v. Gibson 161 Jones v. Grant 606 Jones v. Gray 491 Jones v. Osgood 184, 206 Jones v. Phelps 518 Jones v. Russell 44 Vol. III.— g PAGE. Jones v. State. 174 Jones v. Tumbull 541 Jones v. Underwood 456, 496 Jones v. United States Slate Co 507 Jordan v. Garrison 47 Jordan v. Petty 705 Jordan v. Sherwood 538 Judson v. Gray 317, 549, 550 Judd v. Young 155 Juliand v. Grant 336 Kain v. Delano 10, 248, 251, 259, 261 263, 265, 266, 268, 269 Kalt v. Lignot 459 Kane v. Demarest 670 Kane v. Whittick 338, 339 Kane v. Van Vranken 508 Kanouse v. Martin 521 Kapp v. Barthan 298 Kay v. Whittaker 12, 27, 606 Keator v. Ulster and Delaware Plank- road Co 245, 255, 294 Keeler v. Poughkeepsie and Salt Point Plank Road Co 251', 261 Keenan v. Durfinger 543 Keese v. Wyman 482, 680 Keil v. Rice 235 Keller v. N. Y.- C. R. R. Co 159, 179 180,182 Keller v. Phillips Wk Kelley y. Upton 201, 441, 569 Kellogg v. Cowing 687 Kellogg v. Howell 377, 378 Kellogg v. Klock 509 Kellogg v. Olmsted 599, 601 Kelly v. Downing 562, 564, 638, 645 Kelly V. Kelly 202 Kelly v. Searing 577, 579 Kelly v. Thayer 615 Kelsey v. Covert 647, 649, 658 Kelsey v. Murray 155 Kemp v. Wade 354 Kendall v. Hodgins 687, 693 Kendall v. Kendal] 475 Kendall v. Rider 342, 387 Kennedy v. Harlem R. R. Co '441, 514 Kennedy v. Hutchinson 48 Kennedy v. Shilton 265 Kent v. Harcourt 163, 207, 408 Ker v. Cloberry 386 Kerker v. Carter .57, 301 Kern v. Towsley 160 Kerrigan v. Ray 585, 716 Ketclmm v. Clark, 272, 280, 299, 301, 340 350, 356, 379, 382, 385 Keutgen v. Parks 152 Keyes v. Devlin 446 Kiernan v. Rocheleau 180 Kilts v. Seeber 673, 677, 680 Kimball v. Knights 59 Kimberlin v. Faris 410 Kimberly v. Blackford 531 Kimberly v. Stewart 531 King v. Alberton 401 King v. Clark 509 King v. D'Eon 66, 67, 69, 70, 73 1 TABLE OF CASES. PAGE. King v. Edmonds 103, 107 King v. Higgins 594 King v. Harris 741 King v. Havens 191 King v. Jolliffe 68 King v. Jones 30, 38, 70 King v. Mayor, etc., of Portsmouth. . 592 King v. Merchants' Exchange Co . . . 666 King v. Piatt 377 King v. Poole '. .457, 637 Kingv. Stafford... 594, 595, 597, 613, 637 638, 647, 649, 709 King v. Strong 480, 481 King v. Talbot 361, 362 King v. Tremaine 397 King v. West 282, 870 Kissam v. Hamilton . . .289, 291, 336, 705 Kitching v. Dielil 509 Kirby v. Fitzgerald 687 Kirby v. Fitzpatrick 330, 565 Kirby v. Kirby 543 Kirby v. Sisson 514 Kirkland v. Leary 224' Kirkraan v. Booth 859 Klock v. Buell 409, 444 Klinck v. Colby 173 Kluender v. Lynch 205, 206 Knapp v. Curtiss 511, 533, 534, 535 Knickerbocker Bank, Matter of 574 KJflSkerbocker v. Eggleston 372 Knickerbacker v. Smith 694 Knight v. Inhabitants of Freeport . . 187 ■ 898 Knox v. Brown 529 Kohler v. Wright 84 Koon v. Thurman 487 Kortright v. Cady 742 Koy v. Clough 68 Kranshaar v. New Haven Steamboat Co 600 Kreitz v. Frost 614, 655, 660 Labar v. Koplin. ...157, 158, 162, 170, 194 La Beau v. People 137, 140, 142, 211 Lacey v. Forrester 119 Lackey v. McDonald 528 La Farge v. Luce 510 La Farge v. Van Wagenen 375 La Forge v. Chilson 674, 676 LaFrombois v. Jackson 198 Lahey v. Kingon 667, 674 Lake v. Artisans' Bank 209, 434 Lamb v. Camden & Amboy R. R. Co. , 120 409, 444 Lambert v. Buckmaster 542 Lambert v. Converse 730 Lambert v. Seely 206 Lamerson v. Marvin 376 Lamoreaux v. Morris 317 Landsberger v. Magnetic Telegraph Co 459 Lane v. Bailey 444 Lane v. Borst 328 Lane v. Gilbert 662 Lane v. Hobbs 698 -Lane v. Salter 600, 641 Lane v. Isaacs 48 Lang v. Ropke 418 Lang v. Wilbraham 623 Langley v. Fisher 476 Langley v. Hickman 285, 290 Langley v. Warner 196, 299, 564 Lanning v. Carpenter 686, 687 Lanning v. S warts 535 Lansing v. Cole 534 Lansing v. Lansing 360 Lansing v. McPherson 378 Lansing v. Mickles 48 Lansing v. Orcott 749 Lansing v. Russell, 24, 407, 409, 420, 442 620 Lapeous v. Hart 436 Lashley v. Hogg 364 Last v. Denny 659 Latham v. Bliss 470, 486 Latham v. Westervelt 171 Laub v. Buckmiller 610 Launitz v. Barnum 461 Laverty v. Moore 698 Law v. Merrills •. 189 Lawless v. Hackett 686 Lawley v. Hooper 474 Lawrence v. Bank of the Republic. . 587 Lawrence v. Cornell 698 Lawrence v. Davis 482, 485, 505, 595 Lawrence, Ex parte 742 Lawrence v. Ely 416 Lawrence v. Farmers' Loan & Trust Co 339, 348, 588, 594, 704, 710 Lawrence v. Fowler 348 Lawrence v. Richmond 704 Lawson v. Robinson 30 Leach V. Boynton 614 Leahey v. Kingon 598 Leavy v. Roberts 416, 422, 725 Leaycroft v. Fowler 245, 246, 255 Le Conte v. Pendleton • 59 Ledyard v. Jones 446 Lee v. Ainslie 595, 596, 613 Lee v. Chadsey. . . .132, 136, 142, 144, 177 Lee v. Josephs 401 Lee v. Phillips 528 Lee v. Tillotson 11, 241 Lee v. Willock 381 Leedon v. Pancake 401 Leeds v. Brown 353 Lefevre v. Lara way 377 Lefler v. Field, 318, 320, 327, 328, 329, 333 431 Leggett v. Boyd 66 Legrand v. Baker 401 Leighton v. Wood. . .60, 61, 506, 507, 512 Leland v. Bennett 124 Lemen v. Wood 533 Lemon v. Staats 713, 721 Lentilhon v. Mayor, etc., of New York 584, 586, 703, 709, 714 Lents v. Craig 375 Leonori v. Bishop 149 Leonard v. Manard 507 Le Roy v. Park Fire Ins. Co 181 Leslie v. Leslie 20, 28, 629 TABLE OF CASES. li PAGE. Lettman v.. Ritz 167 Levi v. Milne 40.3 Levin v. Russell 204 Levy v. Brooklyn Fire Ins. Co 241 Lewenthal v. Mayor, etc., of New York 315 Lewin v. Guest 367 Lewis v. Acker 613 Lewis v. Bryee 493 Lewis v. Chapman 172, 173 Lewis v. Gerrnond 527 Lewis v. Jones, 219, 220, 230, 707, 717, 71 9 732 Lewis v. Loxam 391 Lewis v. Varnum 213 Lewis v. Woodruff 742, 747 Lexington Ins. Co. v. Paver 113 Libby v. Rosekrans 729 Liddle v. Hodges 175 Life and Fire Ins. Co. v. Mechanics' Fire Ins. Co 204 Lillie v. Sherman 729 Linacre v. Lush 487 Lincoln v. Lincoln 253, 581 Lindsley v. European Petroleum Co., Ill 112, 113 Lippman v. Joelson 675 Lisher v. Parmelee 33, 396 Lister v. Mundell 414 Litck v. Brotherson .289, 308 Litchfield v. Burwell. ..255, 256, 266, 650 Littlefield v. Murin 639 Little v. Bigelow 261 Little v. Harvey 739 Littlejohn v. Greeley 112, 613 Littlejohn v. Munn 583 Livingston, Matter of 422 Livingston v. Douglass 661 Livingston v. Gidney 307, 308 Livingston v. Hammer 633 Livingston v. Hubbs 701 Livingston v. Mildrum 606 Livingston v. Miller 451 Livingston v. Mclntyre 55 Livingston v. Platner 191 Livingston v. Radcliff 450 Livingston v. Roberts 728 Livingston v. Vieille Montagne Zinc Mining Co 486 Lloyd v. Llovd 651 Lloyd v. Williams 361 Lockwood v. Thorne 172 Loeschigk v. Addison. .154, 216, 220, 583 708, 709, 712 Loftus v. Swift 477 Logan v. Brooks 503, 555 Logan v. Thomas 503, 555, 559 Logue v. Gillick 525 Lohman v. People 149 Lombard v. Bayard 738 Lomer v. Meeker . .32, 158, 159, 162, 163 170, 408 Long v. Hall 539 Lonsdale v. Brown 398 Loomis v. Decker 218 Loomis v. Higbie 524 PAGE. Lord Braybrooke v. Inskip 367 Lord v. Cooke 70 Lord St. John v. Lady St. John 592 Lord Selsea v. Powell 448 Lord Shipbrooke v. Lord Hinchin- brook 392 Lord v. Vreeland 231 Loring v. Illsley 338 Love v. Blewit 701 Lovett v. Cowman 60 Lounsbury v. Purdy 514, 738 Low v. Carter 480 Low v. Hallett 251 Lowber v. Mayor, etc., of N. Y. .668, 731 Lowenberg v. People 105 Lowenstein, Matter of 599 Lowery v. Steward 409, 447 Lowerre v. Vail 502,530 Lowndes v. Collens .'. . 361 Lownds v. Remsen 750, 752, 753 Lowry v. Inman 496 Loyd'v. Hicks 698 Lucas v. Johnson 38 Lucas v. Peacock 543 Luddington v. Taft, 79, 246, 288, 298, 471 Ludlow v. Hackett 528 Lungford v. Pitt 340 Lund v. Broadhead 466, 467 Lusher v. Walton 260, 263 Lyle v. Rollins 404 Lynch v. Masher 48 Lynch v. Rome Gas Light Co. . .584, 712 713 Lynde v. Cowenhoven. . .63, 704, 708 718 719 Lynde v. West 647 Lynde v. Verity 665 Lyon v. Isett 87, 608 Lyon v. Marshall 203 Lyon v. Wilkes 559 Macdonnell v. Evans 135 Mabbettv. White 205 Machell v. Ellis 115 Mack v. McCullock 490, 491 Mackenzie v. Hudson 68, 73 Mackey v. Mackev 195, 745 Mackey v. N. Y. C. R. R. Co 404 Macomber v. Mayor, etc., of New York 553, 666, 668, 716, 719 Macrow v. Hull 448 Macy v. Wheeler 400, 444 Magee v. Badger 205 Magie v. Baker '. 202, 217, 221, 223 Magnus v. Trischett 435, 444 Maher v. Carman 428 Main v. Eagle 525 Main v. Pope 32, 498, 573 Malan v. Simpson 449, 512 Malm v. Rose 418 Mallory v. Tioga R. R. Co 178, 179 Mallory v. Travelers' Ins. Co, , , . , . . 161 Mallor'y v. Wood 817; 230, 225 Malloy v. Wood , , 198, 431, 567 Maloy v. N. Y. C. R. R. Co 171 Manchester v. Herrington 39, 826 lii TABLE OF CASES. PAGE. Manix v. Maloney 399 Mauley v. Ins. Co. of North America, 306 327, 329, 331 Mann v. Glover 107, 108 Mann v. King 506 Mann v. Provost 515, 666, 703 Mann v. Tyler 288, 498 Manning v. Dnnn 514 Manning v. Guyon 713, 719 Manning v. Monaghan 189, 198 Mansfield v. Wheeler 404, 406, 446 Mantles v. Myle 308 Manufacturers' Bank of Rochester v. Hitchcock 613 Manufacturers and Mechanics' Bank of Philadelphia v. St.' John 683 Marble v. Lewis 673, 675 Maretzek v. Cauldwell 9, 40 Margravine of Auspach v. Noel 340 Marine Bank of City of New York v. Clements 178, 424 Markham v. Middleton 664 Marks v. Bard 526 Marks v. Reynolds 684, 685 Marquisee v. Brigham. . 2, 3, 485, 505, 595 Marquisee v. Ormston 412 Marquand v. Webb 409 Marquart v. La Farge 444 Marquat v. Marquat. . . 297, 607, 608, 631 Marr v. Johnson 403 Marr v. Smith 544 Marsden v. Overbury 279 Marsh v. Hussey 530 Marshall v. Griffin 662 Marshall v. Smith 330, 565 Marshfield v. Weston 358 Marston v. Vultee 406 Martin v. Albright 708 Martin v. Francis 544 Martin v. Hawks 543 Martin v. Kanouse 455, 595, 718 Martin v. Lott 717, 719, 734 Martin v. McCormick 498, 519 Martin v. Podger 401 Marvin v. Marvin 419 Mason v. Bidleman 46, 59 Mason v. Breslin. .199, 200, 209, 433, 434 567, 568 Mason v. Hand 644 Mason v. Jones 726 Mason v. Kno wlson 745 Mason v. Lord 219, 329 Mason v. Moore 48 Masters v. Barnard '. 233, 597, 704 Matter of Widening Broadway 315 Matteson v. N. Y. Central E. B. Co. . 122 Matthews v. Beach 172 Matthews v. Duryee 320 Matthews v. Houghton 703 Mathews v. Jones •. 268 Matthews v. Mayor of New York . . . 226 Matthews v. Ollerton 271 Matthewson v. Thompson 496 Mattice v. Allen 151 Mattice v. Gifford 508 Mattoon v. Young 121 PAGE. May v. May 508 Maybee v. Fisk 447 Mayor of Norwich v. Berry 704 Mayor, etc., of N. Y. v. Erben 224 Mayor, etc., of N. Y. v. Hamilton Fire Ins. Co 225 Mayor, etc., of N. Y. v. Mason . .120, 163 408 Mayor, etc., of N. Y. v. Second Ave. B. R. Co 444 Mayor, etc., of N. Y. v. Wood 610 Mays v. Hassell 704 McAndrew v. Whitlock 306 McBrair v. Hauson 749 McBride v. Farmers' Bank 433 McCann v. Bradley 533 McCarty v. Edwards 19, 212 McCarty v. Hudson 197 McCarthy v. McQuade 171 McCaulay v. Thorpe 70 McClure v. Board of Supervisors of Niagara Co 481 McCullum v. Barker 656 McComb v. Wright 365 McConihee v. N. Y. & Erie R. R. Co. 447 569 McConnell v. Hampton 412 McCormick v. Brookfield 109, 110 McCormack v. Wheeler 705 McCotter v. Hooker 206 McCoun v. N. Y. Central & Hudson River R. R 508 McCoun v. Rowley 81 McCrackan v. Valentine 350, 355 McCrackan v. Valentine's Exr's .... 579 McCullough v. Brodie 251 McDonald v. Walter 413, 414, 423 McDowell v. Second Avenue R. R. Co 543 McDougall v. Fogg 410 McEvers v. Lawrence ' 632 McFarland v. Crary 491 McGown v. Leavenworth 645 McGregor v. Buell 471, 633 McGuinty v. Herrick 741 McGuire v. Johnson ' 604 McHarg v. Donelly 532 McHench v. McHench 532 McHenry v. Hazard 610 M'Inroy v. Benedict 294, 296, 309 Mcintosh v. Ensign 604 McKay v. Marine Ins. Co 68, 73, 401 McKee v. People 406 McKee v. Tyson 690, 691 McKenzie v. HackstafE 507 McKensie v. Farrell 655 McKenster v. Van Zandt 527 McKeon v. See. .11, 89, 212, 213, 214, 215 218, 226 McKinstry v. Edwards 666 McKnight v. Dunlop .-. . . 280 McKoan v. Devries 25 McLees v. Avery 494, 680 McMahon v. Allen 19, 154, 155, 298 323, 334, 339, 348, 349, 380, 704, 710 McMahon v. Harrison 154, 583 TABLE OF CASES. liii PAGE. McMahon v. Mutual Benefit Life Ins. Co 457, 637 McMahon v. N. Y. & Erie R. R. Co 206 320 McMartin v. Taylor 161 McMasters v. Vernon 458 McMullen v. Hoyt 159 McMurray v. Gifford 48 McMurray v. McMurray 509, 699 McNamara v. McNamara 610 McQuade v. N. Y. & Erie It. R. Co. . 515 McReynolds v. Munns 626 Meacliam v. Sternes 361 Mead v. Mallory 503, 555 Mead v. Northwestern Ins. Co. . . . 428 Meakim v. Anderson . . 402, 415,417, 445 Mechanics' Bank v. Mintliorne 664 Mechanics' Banking Association v. Kiersted. .' 512, 514 Mechanics' Banking Association v. Mariposa Co 163, 620 Mechanics and Farmers' Bank v. Rider 599 Mechanics and Farmers' Bank v. §mith 106 Mechanics and Traders' Saving Insti- tution y. Roberts 13, 27, 606 Medbury v. Swan 87 Meech v. Calkins 48 Mehl v. Vonderwulbeke 712 Mellish t. Arnold 399 Melvin v. "Wood 277, 290 Mercer v. Sayre 415 Merchants' Bank v. Scott 435 Merchants' Ins. Co. v. Hinman . . 376, 378 Merrifield v. Cooley 598 Merrill v. Near 490 Merritt, In re Merritt v. Annan 351 Merritt v. Arden 528 Merritt v. Brinkerhoff 186 Merritt v. Lyon 159 Merritt v. Seaman 206 Merritt v. Thompson 239 Merritt, Trustees, etc., In the Matter of 384 Mersereau v. Pearsall 415 Mersereau v. Ryerss... .288, 298, 535, 536 Merwan v. Ingersol 57, 196 Mesick v. Smith 261 Metcajf y. Baker 296 Methodist Episcopal Church v. Ja- ques 359 Meyer, v. Amidon 226, 328 Meyers v. Betts 280 Meyer v. Clark 180, 181 Meyer v. Fiegel .... 79, 83, 204, 416, 446 Meyer v. Goedel 124, 210 Meyer v. Montriore 354 Milbank v. Dennistoun 170 Millard V. Van Ranst 61, 670 Millar v. Craig 359 Millard v. Whittaker 743 Miller v. Adsit 538 Miller v. Decker 462 Miller v. DePeyster 476 PAGE. Miller v. Eagle Life and Health In- surance Co 634 Miller v. Earl 691, 693, 694 Miller v. Franklin 538 Miller v. Hooker 47, 250, 252 Miller v. Lewis 724 Miller v. Lockwood 172, 194 Milleman v. Mayor, etc., of N. Y. . . . 515 Miller v. Miller 629 Miller v. Milligan 172 Miller v. Porter .' 77 Miller v. Rowan 480 Miller v. Schuyler 444 Miller v. Stocking 28 Miller v. White 608, 714, 718 Milligan's Case 106 Millington v. -Fox 474 Mills v. Carnly 153, 410 Mills v. Farmer 592 Mills v. Dennis 632 Mills v. Hoag 338, 345 Mills v. Oddy 113 Mills v. Thursby 249, 307, 601, 603 Mills v. Van Voorhies 608, 630, 631 Mills v. Winslow 525 Millspaugh v. McBride 515, 701 Miln v. Vose 711 Milton v. Griffiths 36 Milvin v. Wood 270 Milward v. Hallett 432 Miner v. Beekman 746 Minier v. Minier 122 Minks v. Wolf 463 Mitchell v. Bailey 474 Minturn v. Main 488 Minuse v. Cox 499 Mitchell's Case 275 Mitchell v. Blain 480 Mitchell v. Borden 167 Mitchell v. Ehle 186, 399 Mitchell v. Hackett 742 Mitchell v. Hall 436, 498, 721 Mitchell v. Mount 533 Mitchell v. Ostrom 604 Mitchell v. Van Buren 689, 691, 694 Mitchell v. Westervelt. .483,485,505, 511 Mitchell v. Roulstone 204 Mitchum v. State 167 Mix v. Brisban 37, 38 Moadinger v. Mechanics' Fire Insur- ance Co 411 Moeller v. Bailey 26 Moffatt v. Ford 2, 62, 84, 485, 496 Moffat v. Judd 258, 268 Moffatt v. Moffatt 89 Moffat v. Mount 213 Mohawk Bank v. Atwater 740 Moir v. Brown 539 Mole v. Smith 341 Molesworth v. Verney 651 Molony v. Do wes 720 Monell v. Marshall . . . ■. 314 Monk v. Union Mutual Life Ins. Co., 446 Montfort v. Hughes 604 Montgomery County Bank v. Albany City Bank 517, 518, 520, 635 liv TABLE OF CASES. PAGE. Montgomery v. Ellis 615, 701, 72!) Moody v. Baker 412 Moody v. Pomeroy 186 Moody v. Tovvnsend 688 Mooers v. Saunders 558 Moore v. Hamilton 836 Moore v. Meacliam 175 Moore v. Westervelt ... 181. 450, 456, 489 491, 497, 540, 541, 705 Moore v. Wood 414 Mora v. Great Western Insurance Co., 2 Mora v. Sun Mutual Insurance Co. . . 233 236, 456, 596 Moran v. Dawes 412 Morange v. Morris 423, 434, 435, 444 Morgan v. Fernyhough 36 Morgan v. King 173, 174 Morgan v. Leland 28 Morgan v. Morgan 860 Morgan v. Reid 408 Morgan v. Skidmore 582 Morrell v. Fisher 481 Morrell v. Gibson 60 Morris v. Crawford 4, 6, 215 Morris v. Hunt 46 Morris v. Morange 339, 345, 348, 442 571, 625 Morris v. Mowatt 303, 343 Morris v. Slatery 60, 666 Morris v. Wadsworth 114 Morrison v. Ide 483, 508, 510, 551 Morrison v. New York and New Haven R. R. Co 436, 706 Morse v. Evans 432 Morse v. Lafarge 37 Morss v. Jacobs 467 Morss v. Morss 286, 289, 294 Morss v. Salisbury 467 Morss v. Sherill 405 Mortlock v. Buller 340 Moslier v. Heydrick 683 Moss v. Priest 23, 16.5, 190, 208 Mott v. Union Bank 669 Moulton v. Norton 635, 668, 730, 733 Mowatt v. Carow 517 Mower v. Kip 361, 740 Muir v. Leitch, 741 Muller v. Bayard 460, 461 Mulock v. Mulock 409, 420 Mulvehall v. Mill ward 412 Mumford v. Smith 404 Mumford v. Stocker 743, 749 Mumford v. Withey 463 Munn v. Barnuni 728 Munroe v. Potter 406,444, 447 Munson v. Hagerman 84 Murdock v. Empie 377 Murphy v. Deane 120 Murphy v. Winchester 335 Murray v. Ballou 476 Murray v. Blatchford 698 Murray v. De Gross 465 Murray v. Graham 473 Murray v. Hendrickson 531 Murray v. Hudson River R. R. Co., 411 413, 445, 448 PAGE. Murray v. Judson 733 Muscott v. Runge 502 Mutual Life Ins. Co. of New York v. Bowen 370 Myers v. White 525 Mygatt v. Willcox 485 Nash v. Hamilton 195, 417, 745 Nason v. Cockroft 417 Nation v. People 140 Neal v. Billing 385 Neal v. Wyllie 664 Nearing v. Bell 114 Ned v. State 399 Neele v. Berryhill 690, 713 Neesom v. Why lock 46 Neil v. Abel 186 Neilson v. Mutual Ins. Co 516 Neilson v. Neilson 877 Nellis v. De Forrest, 236, 511, 513, 522 551, 597 Nelson v. Ingersoll 306, 314, 334 Nelson v. Wilson 543 Nesmith v. Atlantic Ins. Co 100, 101 Nesmith v. Clinton Fire Ins. Co. .423, 439 Nestle v. Jones 489 Neusbaum v. Keim 686 Newball v. Adams 066 Newcomb v. Butterfield 191 Newcomb v. Griswold 136, 140 Newcomb v. Johnson 56, 59 Newland v. West 293 Newlin v. Lyon' 223 Newton v. Bronson 450 Newton v. Chaplin 36 Newton v. Harris 148, 205 Newton v. Pope 159 New York Central Ins. Co. v. Kelsey, 31 33, 34 New York Central Ins. Co. v. National Protection Ins. Co. 610 New York Firemen's Ins. Co. v. Wal- den 178 New York Ice Co. v. North West Ins. Co 214, 519, 564, 607, 729 New York Ins. Co. v. Kelsey 396, 397 New York Life Ins. & Trust Co. v. Smith 667 New York Life & Trust Co. v. Van- derbilt 494, 496, 500 Nicholl v. Forshall 30, 31 Nichols v. Sixth Avenue R. R. Co. . . 419 Nicholson v. Showerman 534 Niles v. Lindsley 460, 462 Niles v. Maynard 308, 316 Niles v. Price 314, 424, 708 Niver v. Rossman 495, 498 Noakes v. People 180 Noble v. Cromwell 580, 628 Noble v. Meymott 480 Noble v. Trotter ' 509 Nolton v. Moses 126, 153, 286 Nolton v. Western R. R. Co., 522, 588, 597 Norbury v. Calbeck 480 Norbury v. Seeley 13, 27, 606 Norris v. Denton 687, 693, 694 TABLE OF CASES. lv PAGE. INorman v. Beaumont 397 North v. Piatt 287 North v. Sargeant 41, 441, 448, 511 513, 514, 522 Northarn Bridge & Road Co. v.London & Southampton R. R. Co 420 Northern Bank of Kentucky v. Wright '. 598 Northrop v. Van Dusen 506, 510 Northrop v. Wright 409 Norton v. Rich 510 Noxon v. Bentley 75, 514, 566 Noxon v. Gregory 745 Oakley v. Aspinwall 210, 436, 599 Oakley v. Sears 137, 144, 403, 416 Oathout v. Rooth 553, 647 Obaldeston v. Asken 367 Oberlander v. Spiess 328 O'Brien v. Bowes 11, 19, 217 O'Brien v. Heaney 154 O'Brien v. People 109, 110 • O'Callaghan v. Carroll .• 525 O'Connor v. Cook 409 O'Conner v. Murphy.- 746 O'Dougherty v. Aldrich 157 O'Hara v. Brophy 194, 471 O'Neill v. James 182, 183 O'Reilly v. Davies 460 O'Shea v. Kirker 190 Ogden v. Coddington 444 Ogden v. Payne 65, 66, 70, 73, 77 Ogsbury v. La Farge 620 Opdyke v. Marble 509 Olcott v. Robinson 374 Oldfield v. New York and Harlem R. R. Co 718 Olendorf v. Cook 18 Oliver v. Trustees First Presbyterian Church 186, 399 Olmstead v. Loomis 270 Oneida Bank v. Ontario Bank. . .201, 569 Oneida National Bank v. Stokes .... 36 Ontario Bank v. Baxter 47 Ontario Bank v. Walker 742 Onions v. Naish 398 Orchard v. Binninger 728 Ormsby v. Babcock 488 Orwell v. McLaughlin 675 Osborne v. Betts 288, 498 Osgood v. Manhattan Co 409 Osgood v. Whittlesey 281 Ostrander v. Walter 743 Ostrom v. Bixby 508 Ostrom v. Calkins 412 Otis v. Spencer 216, 306, 573 Ott v. Schroeppel 316 Ousterhout v. Day 549 Overing v. Russell 441, 448, 511, 513 Overseers of Pittstown v. Overseers of Plattsburgh Overseers of Rochester v. Lunt. Owen v. Mason Owen v. Warburton Packard v. Hill. 404 543 437 160 PAGE. Packer v. French 283 Paddock v. Salisbury 405 Paddock v. Springfield Fire and Marine Ins. Co 234, 237, 597, 611 Page v. Ellsworth 446 Page v. South 48 Palmer, Matter of 315 Palmer v. Andrews 406 Palmer v. Davis 604 Palmer v. Iiaight 146 Palmer v. Moxon 593 Palmer v. Palmer, 272, 273, 279, 291, 295 298, 299, 301, 340, 350, 356, 380, 382 Pardee v. Schenck . .2, 5, 25, 48, 483, 484 485, 486 Palmer v. Smedley. .4, 232, 233, 236, 456 Park Bank v. Tilton 410 Park v. Church 690, 732, 733 Park v. Moore 528 Parker v. Ansell 443 Parker v. Godin 400 Parker v. Grant 666 Parker v. Hutchinson 361 Parker v. Jackson 604 Parker v. Link 433 Parker v. Parker 20 Parker v. Snell 251 Parker v. Thoroton 397 Parker v. Van Houten 636 Parkham v. Harney 186 Parkhill v. Hillman 532, 536 Parkins v. Stephenson 29 Parnell v. Price 392 Parrott v. Knickerbocker Ice Co. . . . 120 Parshall v. Klinck 402, 416 Parsons v. Brown 407 Parsons v. Suydam 152 Partridge v. Gilbert : 175 Patchin v. Astor Mutual Ins. Co. 145, 146 Patchin v. Parkhurst 491 Paton v. Rogers 341 Patchin v. Sands 100, 101, 102 Paton v. Wright 676 Patridge v. Usborne 701 Patrick v. Hallett 84 Patten v. Harris 231 Patterson, In re 572 Patterson v. Ackerson 409, 420 Patterson v. Graves 306, 307 Patten v. Hazewell 57, 58, 62 Patterson v. Matthews 401 Patterson v. Powell 26 Pattison v. Hull 473 Payne v. Ibbotson 137 Paynter v. Houston 344 Peacock v. Monk 344 Pearce v. Pearce 536 Pearl v. Robitschek 647, 658 Pearson v. Fiske 280, 291 Pearson v. Henry 592 Pearson v. Pearson '. 480 Peckham v. Leary 126 Peck v. Hiler 416, 436 Peck v. N. T. & Liverpool Mail Steam- ship Co 58 Peck v. Richmond 137, 416 TABLE OF CASES. lvii ,,., PAGE. Pike v. Johnson 525 Pike v. Nash 501, 504, 555 Pinckney v. Childs 675 Pinder v. Morris 748 Pinder v. Stoolhoft 465, 466, 494 Pitt v. Davison 87, 283, 382 Pitt v. Lord Camelf ord 382 Place v. Butternutts' Woolen and Cotton Manufacturing Co 2, 488 Plato v. Kelley 137 Plato v. Reynolds 133, 140, 450 Piatt v. Monroe 395, 396, 400, 415 Piatt v. Sherry 491 Player v. Warn 189 Plumb v. Whipples 56 Poirer v. Fisher 297 Polhamus v. Moser 404, 405 Poltz v. Curtis 36 Pomeroy v. Hulin 6, 485, 673, 677 Poole v. Pass 479 Pope v. Machias Water Power Co. . . 132 Popham v. Baker 50 Porter v. Jones 519 Porter v. Havens 181 Porter v. Kimball 119 Porter v. Lee 580 Porter v. Lent 561, 649 Porter v. Mount 186 Porter v. Ruckman 541 Porter v. Willet 464, 469 Post v. Coleman 689 Post v. Jenkins 508 Post v. N. Y. Central R. R. Co 675 Post v. Wright • 68, 401 Pott v. Parker 414 Potter v. Carreras 638 Potter v. Chadsey 421, 434 Potter v. Davison 57, 609 Potter v. Deyo 120 Potter v. Hopkins 406 Potter v. Lewis 36 Potter v. Smith 45, 57, 553, 587 Potter v. Thompson 413 Potsdam & Watertown R. R. Co. v. Jacobs 485, 512 Powers v. Barr 492 Powell v. Cockerell 507 Powell v. Finch 3, 7, 154 Powell v. Jones 417, 445 Powell v. Murray 473, 479 Powell v. Rust 461 Powell v. Wall worth 352 Powell v. Waters 196 Powers v. Wolcott 494, 495, 498 Pratt v. Allen 485, 505, 517, 595 Pratt v. Hull 157 Pratt v. Ogden 180 Pratt v. Ramsdell 459, 471 Pratt v. Rathbun 364 Pratt v. Stiles . . . .279, 298, 288, 334, 380 471, 477 Prentice v. Achorn 475 Prescott v. Roberts 50 President, etc., of Brooklyn v. Patchen, 396, 400 Price v. Powell 428 VOL. III. — II PAGE. Priest v. Price 327 Prince v. Cujas 600 Pringle v. Chambers 174 Pringle v. Huse 103, 110 Pringle v. Marsack 48 Proctor v. Simmons 414 Protection Union v. Nixon 563 Proude v. Whiton 534, 535 Pruyn v. Black 604 Pulver v. Hiserodt 70 Purchase v. Bellows 522, 746 Purchase v. Jackson 508 Purchase v. Matteson 199, 209, 567 Purdy v. Morgan 487 Purdy v. Peters 546, 584, 634, 703 Purdy v. Purdy 529, 531 Purdy v. Upton 683, 689 Purinton v. Humphreys 399 Putnam v. Crombie 218, 283 Putnam v. Heath 524, 525 Putnam v. Hubbell 219, 329 Purple v. Horton 107 Purvis v. Coleman 404 Quackenbush v. Leonard. . .291, 345, 350 352 Quarrier v. Carter 617 Queen's Case 134 Querissle v. Hilliard 503 Quick v. Merrill 34 Quidore v. Van Clief 515 Quigley v. Walter 604 Quinn v. Case 51, 583, 665, 666 Quinn v. Lloyd 245, 246, 255, 257, 259 269, 270, 335 Quin v. Riley 51 Quin v. Tilton 647 Rable v. McDonald 186 Radway v. Briggs 407 Radley v. Brice 462 Rae v. Lawser 693, 694 Rae v. Washington Mut. Ins. Co. . . . 595 Ragan v. McCoy 230 Ramsey v. Erie Railway Co 51, 668 Ramsey v. Gould 61, 665, 670 Ranney v. Russel 676, 680 Randolph v. Foster 3, 492, 496 Randall v. Parker 171 Rands v. Pushman 388 Rankin v. Pine 726 Rapelye v. Prince 65, 436 Raphael v. Boehm 362 Raphaelsky v. Lynch 416 Ranston v. Etteridge 404 Rasquin v. Knickerbocker Stage Co. 542 543 Rathbone v. Lownsbury . , 239 Rathbone v. McConnell 460, 461, 462 560 Rathbun v. Ross 136, 141 Rathbone v. Stanton 404 Rawbotham v. Dupree 46 Ray v. Connor 699 Ray v. Oliver 373 Ray v. Van Hook 476, 479 lviii TABLE OF CASES. PAGE. Rayner v. Clark 595 Raynor v. Timerson 185 Raymond v. Redfield 474 Read v. French 691 Read v. Kurd 178 Read v. Lambert 608 Real v. People 136, 140 Reed v. Barber 211 Reed v. Moore 525 Reeder v. Seeley 531 Reformed Dutch Church v. Brown. . 486 520 Regina v. Chapman 130 Reigne v. Dewees 662 Regan v. Priest 45, 55 Remsen v. Remsen 358 Renaud v. Peck 223, 447 Renouil v. Harris 258, 267, 322, 585 709, 713, 714, 718, 719 Renwick v. Macomb 606 Requa v. City of Rochester, 184, 185, 205 Requa v. Holmes 206 Reynolds v. Champlain Transporta- tion Co 187, 188, 398, 438 Reynolds v. Freeman 596, 597 Reynolds v. Kelly 405 Reynolds v. Mayor, etc., of New- York 501 Reynolds v. Moore 491 Reynolds v. Warner 502 Rex v. Burdett 399 Rex v. Edwards 188 Rex v. D'Eon 69 Rex v. Gray 68 Rex v. Mann 448 Rex v. Mowbrey 443 Rex v. Sankey 541 Rhodes v. Thomas 27 Rice v. Welling 404 Rice v. Wright 496 Rich v. Husson 458, 598 Richards v. Allen 313, 710 Richards v. Sandford 413, 414 Richards v. Salter 476 Richards v. Swetzer. .48,52,553,587, 655 Richardson v. Fisher 415 Richardson v. Mellish 592 Richardson v. White 455, 538 Richtmeyer v. Haskins 457 Richmond v. Cowles 47 Richmond v. Gray 340 Richmond v. Hamilton 313, 316, 549 710 Richmond v. Tallmadge/ 196, 197 Rider v. Hubbell 490 Rider v. Pond 163, 232, 407 Rider v. Powell 218 Ridif er v. O'Brien 388 Righter v. Stall 472 Rigney v. Savory 225 Riley v. Emerson 402 Riley v. Van Amrange 515 Riper v. Poppenhausen 471 Rippowam Co. -v. Strong 41 1 Ripple v. Gilborn 580 Ritter v. Cushman 217 PAGE. Robb v. Jewell 441 Robbins v. Hudson River R. R. Co. . 413 518 Robbins v. Watson 641, 614, 647 Robert v. Ditmas 534 Robert v. Good 408 Roberts v. Carter 317, 745 Roberts v. Clark 2, 3, 485, 505/596 Roberts v. Failis 186 Roberts v. Williams 477 Roberts v. Morrison, 236, 485, 505,595, 613 Robinson v. McManus 163, 170, 408 Robinson v. Judd 457 Robinson v. Meigs 378 Robinson v. Sinclair 50, 668 Robinson v. Smyth 68 Robinson v. Rosher 528 Robison v. Lyle 410 Rochester City Bank v. Rapelje. . .2, 483 485, 595 Rockefeller v. Weiderwax 482 Rockwell v. Hartford Fire Ins. Co. . 10 Rodgers v. Bonner 738, 739 Rogers v. Baird 216 Rogers v. Beard 305, 328, 334, 427 Rogers v. Chamberlain 503 Rogers v. Degen 2, 496 Rogers v. Eagle Fire Company of New York 196 Rogers v. Garrison 68 Rogers v. Hosack 729 Rogers v. Long Island R. R. Co 444 Rogers v. McElhone 32 Rogers v. Moulthrop 184 Rogers v. Murray 405 Rogers v. Paterson 575 Rogers v. Rathbun 5 Rogers v. Rogers 106, 504, 554, 698 Rogers v. Ross 480 Rogers v. Verona 408 Rogers v. Wing 418 Romain v. McMillan 374 Rome Exchange Bank v. Eames .... 607 Romertze v. East River National Bank. . .124, 125, 132, 138, 148, 149, 211 Roome v. Nicholson 614 Rooney v. Second Avenue R. R. Co . . 541 542, 543, 544 Roosa v. Saugerties and Woodstock Turnpike Road Co. . .274, 324, 333, 422 457 Roosa v. Snyder 200, 568 Roosevelt v. Dale 46, 47 Roosevelt v. Kemper 59 Roosevelt v. Thurman 270 Root v. Great Western R.R. Co. 219, 329 Root v. King .411, 431 Root v. Sherwood 193 Roraback v. Stebbins 684 Rosebrooks v. Dinsmore 204, 446 Ross v. Beecher 261 Ross v. Bridge 672, 676, 731 Ross v. Gould 118 Ross v. Hicks 744 Ross v. Mayor, etc., of N. Y. 163, 249, 251 252. 408 lvi TABLE OF CASES. PAGE. Peck v. Wood 504, 509 Peck v. Yorks 136, 280, 334, 708 Peebles v. Rogers 573 Peet v. Cowenhoven 584 Peet v. Warth 500, 586 Pemberton v. Pernberton. . .409, 410, 420 Pendleton v. Empire Stone Dressing Co 146, 174 Pendleton v. Fay 701 Penfield v. White 507 Pennell v. Wilson 511, 529 Pennsylvania Coal Co. v. Delaware and Hudson Canal Co. .11, 89, 212, 213 People v. Adams 490 People v. Albany and Susquehanna R. R. Co 19, 212, 219, 220, 222, 288 450, 704, 708 People v. Albany and Vermont R. R. Co 497 People v. Baker 432, 433 People v. Bodine 105, 106, 107, 110 People v. Banker 482 People v. Beebe 742 People v. Christie 110 People v. Church. .... .220, 221, 328. 431 People v. Clarke 493, 537 People v. Colborne 489, 552, 559 People v. Cole 138 People v. Columbia C. P '. . . 437 People v. Connor 294 People v. Contracting Board 718 People v. Cook. . . .126, 157, 161, 167, 203 People v. Cram 80, 604, 605 People v. Delaware C. P 745 People v. Dodge 218 People v. Douglass 400 People v. Dutcher 353 People v. Dyckman 276 People v. Dyle 176 People v. Ellis 164 People v. Francis 71 People v. Gates 122 People v. Gay 148 People v. Hartung 439 People v. Haws 611 People v. Haynes 141 People v. Hopson 743 People v. Honeyman 106, 107 People v. Hulburt 553 People v. Hulse 149 People v. Judges of Albany Mayor's Court 531 People v. Judges of New York 164 People v. Mallon 105, 106, 107, 108 109, 110 People v. Marks 402, 416 People v. Mather 109 People v. Mayor, etc., of New York. 731 People v. McCumber 612, 614, 712 People v. McGinnis 245, 252, 255 People v. McGuire 100 People v. Moore 151 People v. New York Central R. R. Co. 467 People v. N. Y. Common Pleas. .461, 744 745, 746 People v. Oakes 559 PAGE. People v. Olcott 164 People v. Parish 207 People v. Ransom 186, 200, 397 People v. Rathbun 105, 109 People v. Rawson 142 People v. Sanchez 106, 109 People v. Smith 73 People v. Spalding 725 People v. Steuben C. P 454 People v. Sturtevant 520 People v. Superior Court of New York 66, 416 People v. Supervisors of Monroe .... 545 People v. Thorn 110 People v. Tremain 537 People v. Townsend 404 People v. Van Dusen 482 People v. Vermilyea ... 65, 66, 67, 69, 70 72,74, 77 People v. Washington C. P 432 People v. Wilson 439 Ferine v. Blackford 732 Perine v. Hotchkiss 306 Perkins v. Butler 26, 639 Perkins v. Farnhami 457 Perry v. Livingston 470, 483, 487, 488 503 Perry v. Moore 334 Perry v. Phelps 700 Perry v. Perry 475 Perry v. Whitehead 473 Person v. Warren 685, 694 Peru Iron Co.'s Case 740, 742 Peterson v. Dickel 521 Petit v. Hewlett 38 Petrie v. Fitzgerald 553, 587, 721 Petrie v. Milles 414 Pettibone v. Stevens 360 Pettengill v. Mather 749 Pettit v. Shepherd 739, 740 Petty v. Anderson 407 Peyton v. Green 359 Phelps v. Baker 668 Phelps v. Cole ' 531 Phelps v. Green 478, 626 Phelps v. Pond 499 Phelps v. Wasson 507 Philbin v. Patrick 225, 315, 549 Philips v. Blagge 46, 51y ''59 Phillips v. Burr 64 Phillips v. Gorham 610 Phillips v. Prescott 46, 645 Phillips v. Stagg 542 Phillips v. Suydam 5, 36 Phincle v. Vaughn 203 Phipps v. Van Cott. . . .236, 470, 505, 513 522, 595, 597 Phoenix v. Baldwin "... 403 Phoenix v. Hill 529, 531 Pickard v. Collins 85, 144, 151, 152 Pickett y. Barron 518 Pierce v. Voorliees 293 Pierret v. Moller 461 Pignolet v. Daveau 527 Pignolet v. Geer 745 Pike v. Evans 417 TABLE OP CASES. lix PAGE. Roth v. Buffalo & State Line R. R. Co 171, 173 Roth v. Meads 502 Roth v. Schloss 203 Rouse v. Lewis 175, 203 Rousso v. Vontrin 511 Row v. Sherwood 490 Roy v. Thompson 26, 32, 609 Royal Ins. Co. v. Noble 17(5 Rudd v. Davis 158 Ruggles v. Fogg 676, 679, 680 Ruggles v. Hall 401 Rundell v. Butler 207, 405, 447 Runnell v. Griffin 703 Rushmore v. Hall . . . *. 180 Russell v. Armador 230 Russell v. Austin 475 Russell v. Duflon, 223, 224, 225, 318, 319 329 Russell v. Lane 533, 534 Russell v. Meacham 510 Rutter, Ex parte 285" Ryan v. Doyle 466 Ryan v. McCannell 561, 562, 649 Ry ckman v. Parkins 412 Ryder v. Jenny 608 Ryers v. Hedges 538 Sackett v. Ball 288, 495, 496, 498 Sackett v. Spencer 199, 567 Sage v. Mosher. . . 350, 268, 284, 279, 292 296 Salisbury v. Scott 262 Sails v. Butler 224 Salter v. Ham 608 Salter v. Malcolm 279 Salters v. Genin 214, 408 Saltus v. Kipp . . .302, 562, 613, 637, 638 649, 658, 660, 709 Salutat v. Downes 665 Sanchez v. People 109, 110 Sands v. Church 230, 707 Sands v. Craft 533 Sands v. Crooke 224, 444 Sands v. Sands 495 Sanders v. Benson 473 Saratoga & Washington R. R. Co. v. McCoy 235, 463, 490, 497, 498, 507 Sargent v. Denniston 402, 408 Sargent v. Roberts 185 Satterlee v. Ten Eyck 745 Saunders v. Davies 511 Saunders v. Frost. 472 Saunders v. Pittman 73 Saunderson v. Rowles 594 Savage v. Darrow 505, 522 Sawyer v. Baldwin 480 Sawyer v. Chambers 114, 155 Sawyer v Hodges 27 Sayer v. Finck 68, 401 Sayre v. Townsends 406 Schaettler v. Gardiner 731 Schappner v. Second Avenue R. R. Co 186, 398 Scheidt v. Sturgis 156 Schermerhorn v. Develin 290 PAGE. Schermerhorn v. Noble 580 Schermerhorn v. Van Alen 335 Schermerhorn v. Van Voast. . . . 558, 559 Schenck v. Dart 471 Schenck v. Long 527 Schenectady & Saratoga Plank Road Co. v. Thatcher. . 63, 163, 216,408, 447 585, 709, 712, 715, 716, 718 Scherpf v. Szadeczky 413 Schoolcraft v. Lathrop 538 Schneider v. Jacobi 679, 680 Schoonhoven v. Comstock 635 Schroeder v. Kohlenback 32 Schroeppel v. Jewell 746 Schroff v. Bauer 179 Schultz v. Whitney 296 Schuchardt v. Aliens 406 Schumaker v. State 90, 397 Schwartz v. Poughkeepsie Ins. Co. . . 495 Schwerin v. McKie 163 Scofield v. Hernandez 163, 298 Scott v. Dunbar 476 Scott v. Howard 740 Scott v. Pentz 174 Scott v. Pilkington 608 Scott v. Rushman 662 Scott v. Thorp 472, 478 Scott v. Williams 300, 341 Scoville v. Kent 468 Scranton v. Baxter 336, 511 Scudder v. Gori 456, 511, 521 Scudderv. Snow.. 246,256,257,258, 260 266, 267, 269 Seaboard and Roanoke R. R. Co. v. Ward 526 Seacord v. Burling 397 Seacord v. Morgan 633 Seaman v. Bailey 468 Seaman v. Drake •. 704, 713 Seaman v. Luce 624 Sears v. Burnham 584, 713, 719, 725 Sears v. Conover 445, 448, 636 Sebley v. Nichols 501 Secor v. Law 277 Security Fire Ins. Co. v. Martin. .290, 295 342 See v. Partridge 564, 607 Seeley v. Chittenden 125, 401, 416 Seeley v. Jobson 282 Seeley v. Mayhew 414 Seibe'rt v. Erie Railway Co 159, 170 Selby v. Bardons 591 Selover v. Forbes 666, 734 Selover v. Wisner 511, 512, 521 Sermont v. Baetjer 306 ■ Settle v. Van Evrea 271 ■Seward v. Jackson 196, 299 Sexton v. Zett 171 Seymour v. Delancy 340 Seymour v. Deyo 447 Shackelton v. Hart 542 Shafer v. Guest 445 Shank v. Shoemaker 543 Shanks v. Rae 483 Shannon v. Brower 3,484, 552, 553 554 lx TABLE OF CASES. PAGE. Sharp v. Mayor, etc., of New York. . 251 335, 665 Sharp v. Whipple 200 Sharp v. Wright 328, 334, 708 Sharpe v. Earl of Scarborough 361 Sharps v. Freeman 280, 295 Shaver v. Brainard. . 4, 153, 154, 365, 474 518 Shaw v. Ayrs 251, 263 Shaw v. Coster 473 Shaw v. Dwight 520 Shaw v. Smith 446 Shay v. People 142 Shearman v. Justice 289, 314 Shedden v. Patrick s . 476 Sheffield v. Rochester & Syracuse R. R. Co 138 Sheldon v. Adams 60, 666, 722, 723 Sheldon v. Atlantic Fire and Marine Ins. Co 182 Sheldon v. Hudson River R. R. Co. . 158 162, 404 Sheldon v. Martin 44 Sheldon v. Quinlen 635 Sheldon v. Stryker . . . .194, 416, 436, 691 693 Sheldon v. Weeks 251 Sheldon v. Wood. .211, 224, 319, 320, 415 Shepard v. Potter 124, 126 Shephard v. Brenton 704 Shepheard v. Thompson 31 Shepherd v. Butler 25 Sherman v. Fream 700, 702 Sherman v. Gregory 32 Sherman v. Postley 216,712,715,725, 726 Sherman v. Wakeman 180, 181 Sherman v. Wells 725 Sherman v Willett 376 Sherry v. Frecking 411 Sherwood v. Buffalo and New York City R. R. Co 455, 541 Sherwood v. Mitchell 120 Sherwood v. Trumper 271 Shoemaker v. Nesbit 491 Shotwell v. Mali 162 Short v. Barry 278 Shorey v. Hussey 152 Shumway v. Fowler 417 Shufelt v. Power 487, 488 Shultz v. Whitney. .274,313, 316,501, 549 Shuttleworth v. Lowther 477 Shultys v. Owens 28, 59 Sibell v. Remsen 530 Sickles v. Fort 296 Sidney v. Shelley 592 Sizer v. Burt 286 Sikes v. Ransom 432 Silliman v. Clark 31, 33, 34 Silliman v. Eddy 509 Silliman v. Lewis 158, 407 Silmser v. Redfield 241, 552 Silva v. Low 403 Silverman v. Foreman 416 Simmonds v. Pallas 651 Simmons v. Fay 417, 511 Simmons v. Simmons 272 PAGE. Simonson v. Blake 563, 625, 732 Simpson v. Watrus 137, 207 Simson v. Hart 744, 746 Sinclair v. Tallmadge 216, 314 Sipperly v. Stewart 320 Sipperly v. Warner 483, 487, 488 Skiffington v. Clark 511 Sisson v. Barrett 196, 299, 564 Skinner v. Noyes 639 Slaney v. Wade 420 Slater Bank v. Sturdy 470 Slatter v. Painter 30 Slawson v. Englehart Ill Slee v. Manhattan Co 477 Sleeper v. Van Middleworth 141 Sleight v. Hancox 457, 465, 497, 558 Sloan v. N. Y. Central R. R. Co. .132, 145 147 Slocum v. Barry 530 Slocum v. Lansing 487 Slocum v. Watkins 38 Sluyter v. Smith . . .1, 5, 55, 189, 483, 484 486, 559, 641, 698, 730 Small v. Ludlow 2, 505 Small v. Smith 406 Smart v. Rayner 113 Smith v. Althus 354 Smith v. Aylesworth 51, 59 Smith v. Barker 69, 71 Smith v. Birdsall 549 Smith v. Bowen 59 Smith v. Brown 56, 59 Smith v. Cheetham : 186 Smith v. Coe 203, 700, 706, 709 Smith v. Countryman 79, 82, 83 Smith v. Dobson 71 Smith v. Dodd 249, 265, 512, 513 Smith v. Floyd 445 Smith v. Grant 424, 428, 718 Smith v. Holmes 716 Smith v. Howard 58, 609 Smith v. Jansen 636 Smith v. Jones 507 Smith v. Kerr 409, 446 Smith v. Kobbe 280 Smith v. Lewis 338, 339, 340, 704 Smith v. Masten 412 Smith v. McCluskey 405 Smith v. Page 448, 749 Smith v. Patten 531, 532, 533 Smith v. Riggs 460 Smith v. Sanger 158 Smith v. Schanck 511 Smith v. Shultz 403 Smith v. Skinner 528 Smith v. Smith 382, 480, 566 Smith v. Spalding 267 Smith v. Stickney 150 Smith v. Tiffany 159, 404 Smith v. Thompson 186 Smith v. Troup 246, 255 Smith v. Webster 272 Smith v. White 527 Smith v. Woodruff 531 Snell v. Loucks 24, 54, 410, 443 Snell v. Snell 566 TABLE OF CASES. lxi Snell v. Timbrell 398 Snook v. Fries 328, 334 Snowhill v. Knapp 436 Snyder v. Beyer 461 Snyder v. Goodrich 525 Snyder v. Young 534, 535 Solomon v. Howard 67 Solomon v. Central Park North and East River R. R. Co 126 Solomon v. Underhill 69 Soper v. Soper 566 South wick v. Curtis 647 South wick v. South wick 122 South wick v. Stevens 411 Spatz v. Lyons 421, 423, 444 Spear v. Myers 126 Speidall v. Jervis 651 Spencer v. Spencer 473, 479 Spencer v. Tooker 645 Spencer v. Webb 666 Speyer v. Stern 134, 136 Sprague v. Cad well 146, 147 Sprague v. Eccleston 410 Sprague v. Michell 415 Sprong v. Snyder 494 SpTOul v. Resolute Fire Ins. Co 402 Squire v. Elsworth 647, 716 Squier v. Norris 376 Squires v. Seward 461, 462 St. John v. Denison 530, 531 St. John v. Diffendorf 541, 542 St. John v. Hart 527 St. John v. Mayor, etc., of N. Y., 174, 378 St. John v. Northrup 416 St. Martin v. Desnoyer 399 Stacy v. Graham. . .147, 149, 171, 211, 416 Stafford v. Hesketh 309 Stafford v. Leamy 159 Stafford v. Mott 474, 518 Stafford v. Onderdonk 527 Stahl v. Charles 377 Staiger v. Schultz 471 Staines v. Morris 473 Stainton v. Beadle 661, 664 Stalker v. Gaunt 276 Stanbro v. Hopkins 123 Staniland v. Willott 476 Stanley v. Anderson 656 Stanley v. Twogood 394 Stanley v. Webb 203 Stannard v. Mattice 598, 599, 605, 641 Stanton v. Wetherwax 411 Starbird v. Barrous 410 Starks v. People 148, 149 Starkweather v. Carswell 57 Staring v. Bowen 445 Starring v. Jones 726 State v. Frisby 185 State v. Hill 404 State v. Klinger 73 State of New York v. Mayor, etc., of New York 78 State v Rorabacher 71 Steam Navigation .Co. v. Weed. . 436, 507 Stebbins v. East Society of the M. E. Church of Rochester 688 PAGE. Steinbach v. Columbian Ins. Co 417 Stephens v. Hall 27, 606 Stephens v. Santee 703, 725 Stephens v. Strong 268, 279, 284, 292 296, 350 Stephens v. Veriane 288 Stephens v. Wider 444, 447 Stephenson v. Clark 534, 535 Sterling, Ex parte 541 Sterne v. Bentley 598, 674 Steere v. Miller 503, 555 Stettiner v. Granite Ins. Co 178 Stevens v. Bank of Central New York 739 Stevens v. Hauser 405 Stevens v. Munn 403 Stevens v. Pell._. .-30, 661 Stevens v. Webb .'. 114 Stevenson v. Blakelock 542 Stevensoa v. Buxton 213, 607, 608 Steves v. Oswego & Syracuse R. R. Co 158 Steward v. Biddlecum 747 Stewart v. Elwele 252 Steward v. Green 518 Stewart v. Hamilton 114, 115, 160 Steward v. Lamoreaux 456 Stewart v. Metropolitan Board of Health 489, 491 Stewart v. McMartin 668 Stewart v. New York C. P 454 Stewart v. Slater -. 218 Stilwell v. Staples 435, 466, 570 Stiles v. Cowper 478 Stiles v. Fisher 508 Stimson v. Huggins. . . . 323, 553, 554, 584 587, 713, 720, 721 Stockton & Darlington R. R. Co. v Fox 25 Stoddard v. Clarke 489 Stoddard v. Long Island R. R. Co. . . . 404 Stokely v. Robinson 246 Stone v. Duffy 464, 46!) Stone v. Flower 182, 183 Stone v. State 399, 400 Stone v. Western Transportation Co., 184 Storey v. Brennan 175, 203, 406 Story v. Brown 355 Story v. N. Y. & Harlem R. R. Co. . . . 630 Story v. Patten 744 Stout v. People 107, 109, 110 Stoutenburgh v. Vandenburgh 684 Stow v. Hamlin 540, 541 Striker v. Mott 462 Strong v. Blake 405 Strout v. Curren 645 Strong v. Dollner 378 Strong v. Hardenburgh .... 319, 320, 321 Strong v. Strong . . . 629 Stryker v. Turnbull 102 Stuart v. Binsse 326, 430 Stuart v. Simpson 158, 170 Sturch v. Young 507 Sturgis v. Merry 565 Sudam v. Swart 285 Sullivan v. Magill 71 lxii TABLE OF CASES. PAGE. Summers v. Jarvis 464 Sunney v. Roach 528 Supervisors of Onondaga v. Briggs . . 453 Sutherland v. Tyler 522, 597, 704 Sutherland v. Rose 409 Sutphen v. Fowler 479 Sutter v. Streit 230 Sutton v. Sadler 177 Suydam v. Grand Street & Newton R. R. Co 195 Suydam v. Holden 752 Swain v. Hall 400 Swan v. Saddlemire 719 Swan v. Wheeler 360 Swarthout v. Curtis 579 Swartwout v. Hoage 48 Swift v. Blair's Executrix 535 Swift v. Wells 250, 252 Swift v. Wylie 330, 505 Taaks v. Schmidt 484, 489, 5,01, 502 503, 529, 555 Talcot v. Bronson 543 Talcot v. Commercial Ins. Co 404 Tallman v. Hollister 155, 156 Taner v. Ivie 536 Tate v. Bodfield 48 Tatham v. Wright 409 Tauton v. Groh 520 Taylor v. Betsford 186 Taylor v. Everett 187 Taylor v. Hall 477 Taylor v. Harlow 402, 434, 435. 707 Taylor v. Ranney 741, 752 Taylor v. Rennie 455 Taylor v. Reed 389 Taylor v. Root 471 Taylor v. Seeley 525 Taylor v. Wood 88 Teaz v. Chrystie 509 Ten Broeck v. De Witt 543 Ten Broeck v. Hudson River R. R. Co 509 Ten Broeck v. Paige 470 Ten Eyck v. Holmes 472 Territory v. Nugent 73 Texier v. Gouin 408 Thaver v. Van Vleet 186 Theilusson v. Fletcher 661 Tberiot v. Prince 533 Thermolin v. Cole 396 Thiesselin v. Rossett 308, 309 Thomas v. Chapman . . .187, 188, 437, 438 Thomas v. Clark 511 Thomas v.- Dickinson 186, 399 Thomas v. Reab 241 Thomas v. Tanner. .63, 216, 217, 230, 585 707, 708, 715, 716, 717 Thompson v. Blanchard 151, 152 Thompson v. Brown 592, 594 Thompson v. Erie R. R. Co.. 436, 612, 712 Thompson v. Goulding 698, 699 Thompson v. Krider 291 Thompson v. Parker 309 Thompson v. Perkins 186 Thompson v. Seimer 250, 259, 265 PAGE. Thompson v. Stryker 489 Thomson v. Ebbets 476 Thorpe v. Freer 473, 474, 478 Thrall v. Chittenden 472 Thurman v. Fiske 316 Thurston v. Kennett 112 Thwing v. Thwing 374 Tibbits v. Tibbits 478 Tiffany v. St. John 742 Tifft v. Moor 136 Tilden v. Gardinier 401 Tillman v. Powell 496 Tillou v. Kingston Mutual Ins. Co. . 636 Tillou v. Sparks 490 Tillotson v. Cheetham 660, 661 Tillspaugh v. Dick. . 3, 482, 483, 484, 486 505, 545 Tilman v. Keane 288, 298, 305, 334 Tindal v. Brown 443 Tindall v. Jones 509, 533 Tinson v. Welch 403, 423 Titus v. Bullen 487 Titus v. Relyea 667, 733 Todd v. Hobson 248, 251 Toll v. Thomas 501, 555, 558, 559 Tomlins v. Palk 698 Tomlinson v. Mayor, etc., of N. T.. 218 224, 226, 327, 332 Tompkins v. Acer 48, 52 Tompkins v. Hyatt 339, 345 Tompkins v. Ives 673, 676, 680 Tooker v. Gormer 207 Toplitz v. Raymond 431 Torry v. Hadley 455, 456 Towle v. Jones 608 Towers v. Turner 33 Town of Guilford v. Cornell 500 Townsend v. Cowen 36 Townsend v. Glens Falls Ins. Co ... . 294 309, 326, 432 Townsend v. Hendricks . . .10, 18, 89, 248' 250, 251,252, 263 Townsend v. Lawrence 509 Townsend Manufacturing Co. v. Fos- ter 403 Townsend v. Newell 601 Townshend v. Wesson 714, 718, 719 Tracey v. Altmyer 435, 570 Tracy v. Ames 278 Tracy v. Humphrey .... 587 Tracy v. New York & Harlem R. R. Co 189 Tracy v. N. T. Steam Faucet Co. .27, 606 Tracy v. Stone 470 Trapp v. New York & Erie R. R. Co., 561 , 646 Travel- v. Eighth Avenue R. R. Co. . 160 Traver v. Silvernail 515, 582 Travis v. Barger 412 Travis v. Waters 338, 339 Treadwell v. Stebbins 211 Treat v. Browning 415 Tremain v. Rider . .221, 222, 318, 330, 429 Trimble v. Stilwell 280, 291 Trimm v. Marsh 742 Tripp v. Cook 377 TABLE OP CASES. lxiii PAGE. Tripp v. Thomas 662 Tripp v. Vincent 515, 701 Troup v. Wood 742, 743 Troy & Boston R. R. Co. v. Tibbits . . 515 Troy City Bank v. Grant 468 Truscott v. King 457, 684 Trustees of First Baptist Church in Brooklyn v. Brooklyn Fire Ins. Co., 130 Trustees of Penn Yan v. Forbes 4 Trustees of Penn Yan v. TueJl . ... 486 Trustees of St. Mary's Church v. Cag- ger 161 Tucker v. White 435 Tufts v. Tufts 739 Tunicliff v. Lawyer 462 Turner v. Booker 401 Turner v. Corry 359 Turwin v. Gibson 544 Turner v. Hodgson 698 Turner v. McCarthy 190 Turner v. Meryweather 66 Turner v. Turner 362, 384, 537 Turner v. Van Riper. . .461, 462, 465, 467 Turquand v. Dawson 68 Tuttle v. Smith 644, 649 Twisleton v. Griffith 474 Tyler v. Simmons 384 Tyler v. Hoornbeck 396, 400 TJbanks v. State 71 Ubsdell v. Root 265 Underhill v. New York & Harlem R. R.Co 396 Union Bank v. Bush 689, 691, 694 Union Bank v. Mott. . . .139, 276, 277, 287 290, 292, 334, 497, 512, 513 Union India Rubber Co. v. Babcock . . 551 552, 586, 720 Union Ins. Co. v. Van Rensselaer, 497, 537 Union National Bank of Troy v. Bas- sett 60,277, 667 United States Trust Co.v. Harris. .193, 197 Upton v. Lord Ferrers 361 Utica Cotton Manufacturing Co. v. Su- pervisors of Oneida 475 Utter v. Gifford 460, 461, 462 Utica Ins. Co. v. Badger 406 Vail y. Rice 178 Vaise v. Delaval 437 Valarino v. Thompson 77 Valentine v. Conner 226 Vallance v. King 203, 446 Valton v. National Loan Fund Life Ass. Soc 90, 205, 726 Valton v. National Fund Life Assur- ance Co 223 Van Alstyne v. Cook 713 Vanauken v. Beemer 108 Van Bentliuysen v. Lyle 733 Van Bergen v. Ackles 326 Van Buren v. Fort 527 Van Buren v. Olmstead 477 Van Couver v. Bliss 472 Vanderheyden v. Vanderheyden, 360, 361 Vanderwerker v. Vanderwerker 154 PAGE. Vandervoort v. Smith 416 Van Dusen v. Bissell 503, 555 Van Epps v. Van Deusen 154 Van Home v. Montgomery . . .50, 647, 668 Van Home v. Petrie 468 Van Kamp y. Bell 390 Van Ness v. Bush 277, 314 Van Orman v. Phelps 719 Van Pelt v. Boy er 645 Van Pelt v. Otter 194 Van Piper v. Poppenhausen 533 Van Rensselaer v. Dole 511 Van Rensselaer v. Fay 296 Van Rensselaer v. Hamilton 50 Van Rensselaer v. Jewett . . . 160, 241, 251 Van Rensselaer v. Kidd 489, 498, 519 Van Rensselaer v. Owen 623 Van Santvoord v. Floyd 342 Van Schaick v. Trotter 55, 189 Van Schaick v. Winne 436, 485, 511 512, 522, 551 Van Slyck v. Hogeboom 447 Van Slyke v. Hyatt 216, 222, 305, 306 328, 831, 333, 431 Van Slyke v. Snell 635 Van Steenburgh v. Hoffman 333 Van Tuyl v. Van Tuyl 396 Van Valen v. Lapham 82, 217, 566 Van Valkenburghv. Van Shaick 236 482, 513 Van Vechten v. Griffiths 444 Van Vleck v. Burroughs 534 Van Waggenen v. McDonald .... 662, 663 Van Winckle v. Constantine 591 Van Wormer v. Mayor, etc ,of Albany, 157 Van Wyck v. Reid". 553 Van Zandt v. Cobb. . 265, 350 Vamum v. Taylor 202, 203 Varona v. Socarras , . 140, 143 Vaughan v. O'Brien 620 Vedder v. Fellows 178 Veeder y. Fonda 373 Vence v. Spier 502 Vermilyea, Ex parte 106, 109 Vermilyea- v. Rogers 66 Vibbard v. Roderick 277, 514 Viele v. Troy & Boston R. R. Co., 218, 226 Von Beck v. Shuman 694 Von Beck v. Village of Roundout . . . 607 Von Schoening v. Buchanan 463 Voorhees v. Gros 742 Voorhis v. Voorhis 314 Vose v. Cockcroft 11 Vreeland v. Hughes 514 Vroom v. Ditmas 165, 477 Vrooman v. Griffiths 211 Wade v. Dick 476 Wade v. Powell 246 Wagener v. Bill 604 Wakeman v. Sprague 103 Wales v. Hart 491 Walker v. Burnham 491 Walker v. Dunspaugh 130, 211 Walker v. Gilbert 446 Walker v. Johnson 6, 673, 677, 680 lxiv TABLE OF CASES. PAGE. Walker v. Russell 470, 503, 555 Walker v. Wingfield 386 Wall v. Buffalo Water-works Co 64 Wallace v. Markham 533 Wallace v. Patten 518 Wallace v. Patterson 524 Waller v. Harris 504 Wallis v. Thomas 698 Walrath v. Redfield 192 Walrod v. Ball 203 Walsh v. Kelly 184, 185, 205 Walsh v. Sun Mutual Ins. Co 100 Walsh v. Washington Marine Ins. Co. 223 Walsworth v. Wood 432 Walter v. Post 407 Waltermire v. Westover 740 Walton v. Walton 563, 639 Ward v. Central Park, North and East River R. R. Co 718, 719 Ward v. Davis 1, 277 Ward v. Dewey 4, 6, 27, 80, 215 Ward v. Iiaight 664 Ward v. Herrin 174 Ward v. Perrin 194 Ward v. Ruckman 60 Ward v. Washington Ins. Co 126, 211 286 Ward v. Wilkinson 67 Ward v. Woodburn 511 Ward v. Wordsworth 541 Warden of St. Paul's Church v. Mor- ris 409, 420 Wardell v. Eden 752 Wardell v. Hughes 406 Wardell v. Mason 713, 721, 739 Warfield v. Watkins 455 Waring v. Acker 490 Waring v. Crane 479, 536, 537 Waring v. Waring 156, 699 Warner v. Ford 55, 471 Warner v. Kenney 562, 649, 662 Warner v. N. Y. C. R. R. Co . . . .120, 180 Warner v. Wigers 4, 9, 232 Warner v. Western Transportation Co 390,449, 511 Warren v. Eddy • 433 Warren v. Fuzz 401 Warren v. Haight 144, 176 Washburn v. Herrick 5, 28, 56 Waterbury v. Westervelt 484 Waterbury Manufacturing Co. v. Krause 439, 527, 529 Waterman v. Waterman. . . .245, 252, 255 Waters v. Bristol 413 Watterson v. Watterson 402 Waterville Manufacturing Co. v. Brown 445 Watkins v. Abrahams 684 Watkins v. Stevens 314 Watson v. Brigham 581 Watson v. Gray 181 Watson v Lisbon Bridge 410 Watson v. Maskell 542 Watson v. Scriven 226, 421, 422, 434 Wayland v. Tysen 613 Weaver v. Barden 237 PAGE. Webb v. Crosby 559 Webb v.Daggett 471 Webb v. Dill 674 Webb v. Norton 521 Webb v. Pell 701 Webb v. State 71 Webber v. Hunt 362 Weed v N. Y. & Harlem R. R. Co. . 318 223, 224 Weeks v. Southwick 507 Weeks v. Wanmaker 535 Weigan v. Held 527 Weir v. Slocum 26 Welch, Matter of 706 Welch v. Welch 400 Wellington v. Classon 459 Wells v. Cone 446 Wells v. Cox 193 Wells v. Crueger 666, 669 Wells v. Martin 157 Wells v. Smith 27 Wells v. Wells 376 Wendell v. Wendell 473 Wentworth v. Candee 334, 511 Wesley v. Bennett 45/, 511 West brook v. Dubois 336 Westcott v. Fargo 331 Western R. R. Corp. v. Kortright . . 595 Westlake v. St. Lawrence Mutual Ins. Co 206, 225 Wetherell v. Collins 477 Wetmore v. Law 666 Wetter v. Schlieper 293 Wetzel v. Schultz 38 Weymouth v. Boyer 509 Whalen v. Board, of Supervisors of Albany Co 257, 266, 269 Wharton v. Barry 48 Whatton v. Cradock 362 Wheeler v. Calkins 404 Wheeler v. Falconer . . 249, 258, 259, 260 Wheeler v. Lozee 501, 504, 554, 555 Wheeler v Maitland 293 Wheeler v. Ruckman. . .163,502, 503, 620 Wheeler v. Westgate 455, 464 Wheeler v. Wright 532 Wheelock v. Hotchkiss 490, 491, 519 Wheelright v. Benedict 417 Whittaker v. Desfosse. .249, 252,259, 265 266 Whitaker v. Marlar 536 Whittaker v. Whittaker 367, 592 Whitbeck v. Rowe 376 White v. Anthony 520, 521 White v. Clarke 30 White v. Featherstonhaugh 647 White v. Foljambe 473 White v. Smith 287, 335 White v. Trinity Church 396 Whitehead v. Pecare . . 585, 714, 718, 733 Whitehouse v. Tilley 573 Whittemore v. Adams 566 Whitney v. Belden 573, 574, 575, 616 Whitney v. Crim 184 Whipple v. Williams,. 487, 507, 550, 558 559 TABLE OF CASES. lxv ' Whittimore v. Whittimore 499, 500 Wickham v. Seely 461, 462 Wiggins v. Arkenburg 485 Wiggin v. Gans . . 281, 301, 340, 348, 356 357, 358 Wightman v. Shankland . . 233, 234, 611 Wilbur 7. Wiltsey 470 Wilcox v. Curtiss 545 Wilcox v. Hawley 585, 718 Wilcox v. Hock. . . 199, 421, 565, 567, 568 Wilde v. Jenkins 366, 473 Wilder v. Baumstauk 684 Wilder v. Keeler 364 Wilder v. Wheeler 502, 558 Wilds v. Hudson River R. R. Co 180 Wilkes v. Rogers 386 Wilkie v. Roosevelt 403 Wilkin v. Pearce 39 Wilkins v. Battennan 543 Wilkins v. Carmichael 544 Wilkins v. Earle 177 Wilkinson v. Tiffany 497 Wilkinson v. Payne 448 Wilklow v. Bell 469 Willetts v. Sun Mutual Ins. Co 180 Williams v. Birch 181, 700 Williams v. East India Co 119 Williams v. Eldridge 130 Williams v. Fitch 409, 411, 519 Williams v. Frith 661 Williams v. Hernon 494 Williams v. Hayes 84, 126, 210, 284 Williams v. Horgan 469 Williams v. Ins. Co. of N. America 200, 569 Williams v. Jackson 564 Williams v. People 416 Williams v. Sargeant 126, 151, 153 Williams v. Sage . .268, 279, 291, 293, 296 Williams v. Vanderbilt 207, 404 Williams v. Wheeler 719 Williams v. Williams 31, 59 Williams v. Willis 196, 564 Williamson v. Dale 378 Williamson v. Field 338 Willink v. Reekie 502, 554, 555 Willis v. Hiscox 480 Willis v. Farrer 69 Willis v. Orser 408 Wilmot v. Richardson 142 Wilson v. Abrahams 187, 399 Wilson v. Allen : 486, 526 Wilson v. Clapham 478 Wiltsie v. Eaddie. . 307 Wilson v. Forsyth 19 Wilson v. Heaton 481 Willson v. Henderson 56, 575 Wilson v. Metcalfe 389, 392 Wilson v. Rastall 448 Wilson v. Smith 740 Wilson v. Webb 701 Wilson v. Wheeler 26, 32 Wilson v. Wilson 385, 409, 410 Wilson v. Young 246 Winchell v. Hicks 179, 182 Winchell v. Martin 26 Vol. III.— i „ PAGE. Winfield v. Potter 161 Winne v. Reynolds 478 Winne v. Van Schaick 535 Winnebrenner v. Edgerton 688, 694 Winship v. Jewett 669 Winslow v. Bliss 162 Winslow v. Clark 742 Winslow v. Ferguson 613 Winterson v. Eighth Avenue R. R. Co., 79 Wiser v. Blachley 699, 700, 701 Wiswall v. McGown 608, 631 Witbeck v. Holland 171, 173 Witbeck v. Waine 432, 451 Witherhead v. Allen, 595, 596, 604, 612, 613 Witherspoon v. VanDolar 595, 612 Wolcott v. Holcomb 538 Wolcott v. Schenck 376 Wolcott v. Weaver 578 Wolfe v. Goodhue Fire Ins. Co 194 Wolfe v. Horton 33, 34, 397 Wolfe v. Security Fire Ins. Co 446 Wolfe v. Van Nostrand 519 Wolfkiel v. Sixth Avenue R. R. Co. . 173 Woolley v. Aldritt 30 Woolley v. Whitby 463 Wood v. Brown 608 Wood v. Crowner 261 Wood v. Figard 174 Wood v. Gunston 394 Wood v. Harding ." 31, 213 Wood v. Keyes 705 Wood v. Lambert 633, 706, 576, 597 Wood v. Mayor, etc., of N. Y 24, 571 Wood v. Morehouse 374, 739 Wood v. Northwest Pres. Church . . . 543 Wood v. Orser 623 Wood v. Stoddard 105 Wood v. Torrey 743 Wood v. Vandenburg 480 Woodburn v. Chamberlin. . .161, 162, 604 Woodford v. Eades 664 Woodin v. Bagley 534 Woodward v. Harris 608 Woodward v. Morris 631 Wood worth v. Bellows 13, 606 Woodruffv. Cook 532 Woodruff v. Dickie 276, 290 Woodruff v. Hurson 291 Woodruffv. McGrath 218 Woods v. Illinois Central R. R. Co. . 495 496 Woods v. Monell 376 Wooster v. Burr 157 Worgan v. Ryder 475 Worrall v. Nicholls 477 Worrall v. Parmelee. . . .137, 207, 225, 409 Worsley v. Bissett 67 Wortman v. Wortman 667, 733 Wrav v. Thorn 397 Wright v. Carr 31 W right v. Delafield 220, 226, 609 Wright v. Hooker , 608 Wright v. Howard 476 Wright v. Hunter 224, 444 Wright v. Illinois and Mississippi Telegraph Co 438, 439 lxvi TABLE OF CASES. PAGE. Wright v. Marshall 598 Wright v. Milbank 418 Wright v. McGuffie 67 Wright v. Miller 632 Wright v. Paige 143 Wright v. Sanders 338, 334 Wright v. Williams 9 Wyndham v. Chetwynd 592 Wynn v. Morgan 478 Yale v. Coddington 241 Yale v. Gwints 275 Yeo v. Frere 391 Ynguanzo v. Salomon . . 144, 176, 177, 404 PAGE. Yorks v. Peck 467, 533, 726 Young v. Bush 528 Young v. G-ori 236 Young v. Highland 113 Young v. Keighly 701 Younge v. Fisher 31 Younghanse v. Fingar 524 Youngs v. Wilson 518 Zabriskie v. Smith 180, 420, 450 Zink v. Attenburg 469 Zoffani v. Jennings 69 Zorkowski v. Zorkowski 346 PART VIII. TRIAL AND NEW TRIAL. CHAPTER I. TEIALS IN GENEKAL. ARTICLE I. WHAT 18 ANT> WHAT IS 2ST0T A TEIAL. Section 1. What is and what is not a trial. a. In general. When all the parties to an action have served all the pleadings which the law and the particular circumstances of the case require, the action may be said to be at issue and ready for trial. The usual expression in reference to the disposition of issues is, that an issue in law or demurrer is said to be argued, and that an issue in fact is tried. At an early period the term "trial" was employed in relation to both issues of law and of fact. Stephen's Plead., Supplement, note 29 ; 1 Spence's Eq. Jur. 128, note. And for a long time the term "trial " was limited in its meaning to the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause for the purpose of determining such issue. Ward v. Dams, 6 How. 274, 275 ; Curtis v. Colston, 4 Mas. C. C. 232. The trial of an issue of fact in an equitable suit under the former chancery practice, was called the hearing. 2 Bouv. Inst. 4438. The Code of this State has changed this practice, by declaring that "atrial is the judicial •examination of the issues between the parties, whether they be issues of law or of fact." Code, § 252. Under the present practice, the term "trial" is proper, whether applied to issues of law or of fact ; and to such issues in all actions, whether legal or equitable. But, in all cases, there must be an issue before there can be a trial, since a trial is defined to be a judicial examination of the issues. Sluyter v. Smith, 2 TRIAL AND NEW TRIAL. What is a trial — What ia not a trial. Bosw. 673, 678 ; Pardee v. Schehck, 11 How. 500 ; Chapman v. Lemon, id. 235. b. What is a trial. There is a trial when the merits of the action are brought up, and the cause is placed upon the calendar, and the issues whether of law or of fact, and whether arising on the pleadings or out of subsequent proceedings, are pre- sented to the court, and by the court judicially examined. Place v. Butternutts Woolen and Cotton Manufacturing Co., 28 How. 184, 186. Where evidence is given on both sides, and the plaintiff is non- suited at the close of the evidence, this is a trial. Allaire v. Lee, 1 Abb. 125 ; 4 Duer, 609. So of a cause at issue upon questions of fact, where the cause has been regula,rly noticed and placed upon the calendar, and where the complaint is dismissed on a regular call of the calendar on account of the plaintiff's failure to appear. Moray. Or eat Western Ins. Co., 10 Bosw. 622. So, upon an issue of fact, where the cause is noticed and put on the calendar by the defend- ant, and the complaint is dismissed on a regular call of the cal- endar, because no one appears in behalf of the plaintiff. Sogers v. Degen, 10 Abb. 313 ; 19 How. 119 ; 4 Bosw. 669 ; Dodd v. Curry, 4 How. 123 ; 2 Code R. 69 ; Moffatt v. Ford, 14 Barb. 577 ; Jones v. Case, 38 How. 349. The argument of a demurrer, upon which a judgment is ren- dered, which is a final disposition of the action, is a trial. Small v. Ludlow, 1 Hilt. 307. But an argument upon a demur- rer, noticed as frivolous, is not a trial, because if the judge does not see that the demurrer is frivolous, he makes no decis- ion upon the issues. lb. See Bell v. Noah, 24 How. 478; Butchers and Drovers' Bank, etc., v. Jacobson, 22 id. 470; Rochester City Bank v. Rapelje, 12 id. 26 ; Marquisee v. Brig- ham, id. 399 ; Roberts v. Clark, 10 id. 451 ; Gould v. Carpenter, 7 id. 97 ; Bernhard v. Kapp, 11 Abb. N. S. 342. But where an application is made for judgment on a pleading as frivolous, under section 247 of the Code, which is granted absolutely, without leave to plead over, this is a trial. Hill v. Simpson, 11 Abb. N. S. 343. c. What is not a trial. A motion for judgment upon a plead- ing as frivolous, under section 247 of the Code, is not a trial. Bell v. Noah, 24 How. 478 ; Butchers and Drovers' Bank, etc., v. Jacobson, 22 id. 470 ; Rochester City Bank v. Rapelje, 12 id. TRIAL AND NEW TRIAL. At what time. 26 ; Marquisee v. Brigham, id. 399 ; Roberts v. Clar/c, 10 id. 451 ; Gould v. Carpenter, 7 id. 97 ; Bernhard v. Kapp, 11 Abb. N. S. 342. But if, upon such an application, the pleading is held to be frivolous, and no leave is granted to plead over, it is a trial. Hill v. Simpson, 11 Abb. 343. There is no trial in a case in which the defendant does not interpose any answer, and the plaintiff' s damages are assessed by a sheriff' s jury. Randolph v. Foster, 4 Abb. 262 ; 3 E. D. Smith, 648. So of a case in which no issue is joined, and the case is referred to a referee to take proofs, and report the facts to the court. Chapman v. Lemon, 11 How. 235. Where a complaint is dis- missed, on motion at special term, for want of prosecution, there is no trial. Tillspangh v. DicJc, 8 How. 33. It is otherwise where the complaint is dismissed at the trial, on the ground that it does not state facts sufficient to constitute a cause of action. Shannon v. Brower, 2 Abb. 377. ARTICLE II. WHEN AND BY WHOM AN ACTION MAT BE BROUGHT TO TRIAL. Section 1. At what time. a. In general. The Code provides, that at any time after issue, and at least fourteen days before the court, either party may give notice of trial. Code, § 256. It is evident that there cannot be a trial, in the true sense of the term, until all necessary parties are legally before the court, and proper issues have been joined. In an action against three defendants for the enforcement of a specific performance of their joint contract for the purchase of real estate of the plaintiff, the summons must be served upon all the defendants, or there must be an appearance in the action by them, before the cause can be regularly brought to trial. Powell v. Finch, 5 Duer, 666. If two of such defendants answer, and proceed to the trial, the court will refuse to proceed with the cause whenever it appears that the third defendant has not appeared or been served with a summons. lb. In an action for the foreclosure of a mortgage, there cannot be a reference of all the issues while there are any defendants against whom the plaintiff seeks a judgment over for a deficiency, TRIAL AND KEW TRIAL. At what time. but who have not been served with a summons, or with a notice that no personal claim is made against them, and they have not appeared. Goodyear v. Brooks, 2 Abb. 1ST. S. 296 ; 4 Rob. 682. One or more of several defendants named in the summons in a foreclosure suit cannot bring the action to trial while the other defendants have neither been served with the summons nor appeared in the action. Morris v. Crawford, 16 Abb. 124. In such a case the proper practice is to move for a dismissal of the complaint, instead of noticing the cause for trial. lb. An action for the partition of land cannot be brought to trial before all the defendants served with the summons have answered, or the time to answer has expired as to them. Ward v. Dewey, 12 How. 193. Until the cause is in such a situation that a final judgment can be rendered between all the parties, it will be irregular to bring it on for trial. lb. See Burriham v. De Bevorse, 8 How. 160. An action in the nature of a creditor's suit will not be heard by the court, if it appears that there cannot be a complete deter- mination of the controversey, unless other parties are brought in. Shaver v. Brainard, 29 Barb. 25. And this is the rule even where the defect appears upon the face of the complaint, and the defendants neither demur nor raise the objection by answer or upon the trial. lb. It is not only indispensable that the necessary parties are before the court, but it is equally important that there should be complete and proper issues joined. And where one of several statements of defense in an answer is stricken out by the special term as irrelevant, and no bar to the action, and the defendant appeals from such decision to the general term, the plaintiff can- not, while such appeal is pending, bring on and try the remain- ing issues at the circuit. Trustees of Penn Tan v. Forbes, 8 How. 285. In such a case there would be no issue either of law or of fact, as to the matter stricken out ; and until the decision upon the appeal, the question will remain open whether the answer shall stand. lb. Where, however, there is a demurrer to a part of an answer, the plaintiff may bring on the issues of fact for trial before the decision upon the issues of law. Palmer v. Smedley, 13 Abb. 185. In that event there would be complete issues joined, and the court may permit the issues of fact to the first trial. Code, § 251 ; Warner v. Wigers, 2 Sandf. 635. Where a plaintiff TRIAL AND NEW TRIAL. At what time. amends his complaint after issue joined, this entitles the defend- ant to put in a new answer to the amended complaint, and the cause cannot be regularly brought to trial until the time to answer expires. Akin v. Albany Northern R. R. Co., 14 How. 337. So long as the right to amend the pleadings exists, every notice of trial will be subject to the contingency that an amendment may prevent a trial of the cause pursuant to the notice. While the right to amend the answer exists, the plaintiff is not required to notice the cause for trial ; and an omission to do so is not an unreasonable right to proceed in the cause. Cusson v. Whalon, 5 How. 302 ; 1 Code R. N. S. 27. Where an answer is served by mail, it may be amended at any time within forty days, if done in good faith. Evans v. Lich- tenstein, 9 Abb. IS". S. 141 ; Washburn v. Herrick, 4 How. 15 ; 2 Code R. 2. But the court will not tolerate the service of an amended pleading for the mere purpose of delay. Allen v. Compton, 8 How. 251 ; Rogers v. Rathbun, id. 466 ; Burrall v. Moore, 5 Duer, 64 ; Code, § 172. Where an action is brought upon a promissory note, and the answer does not deny the allegations in the complaint, but inter- poses a set-off, or counter-claim, to which no reply is interposed, there is no issue to try, and, therefore, no notice of trial is neces- sary. Pardee v. Schenck, 11 How. 500. In an action brought against several defendants for the recov- ery of money alleged to be due upon a joint contract, if some of the defendants fail to answer, and the others deny the com- plaint, the plaintiff cannot regularly enter up judgment against the former as for want of an answer, and then proceed to trial and judgment against the latter. Sluyter v. Smith, 2 Bosw. 673. In such a case the action ought to be brought to trial as against a]l the defendants, so , that upon the trial of the issues there may be but one assessment of damages, and one judgment against all the defendants. lb. The right to amend an answer as of course, and thus to delay a trial for a time, may be waived, and if a defendant serves an answer, and afterward, before the expiration of the time to amend the answer, he serves a notice of trial, he will waive the right to amend as of course. Phillips v. Suydam, 6 Abb. N. S. 289 ; 54 Barb. 153. An offer in writing, under section 385 of the Code, that the TRIAL AND NEW TRIAL. By whom action may be brought to trial. plaintiff may take judgment, etc., amounts to a written stipula- tion, and precludes the defendant from taking any steps in the cause until the ten days have elapsed, or the written notice of the plaintiff's acceptance is served. Walker v. Johnson, 8 How. 240. A defendant who desires to avail himself of the provisions of this section must make his offer at such time that the plaintiff will have ten days before the trial in which to elect whether he will accept the offer ; and if the offer is made so late that the cause is reached and tried before the expiration of the ten days, the parties will stand as though no offer had been made. Pomeroy v. Hulin, 7 How. 161. The death of a sole plaintiff prevents any proceedings in the action until there has been a revival by the personal representa- tives of the deceased. Jarvis v. Felch, 14 Abb. 46. o. By whom action may be brought to trial. Either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause shown, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment as the case may require. A separate trial between a plaintiff and any of the several defendants may be allowed by the court whenever, in its opinion, justice will thereby be promoted. Code, § 258. The term "party " may relate to a single plaintiff, and a single defendant, in which case a notice by either of them would be sufficient. But there are frequently several parties, plaintiffs or defendants, or both ; and in that event all the parties plaintiffs, or all the parties defendants are, as a general rule, treated as though they, together, constituted one of the parties to such action, especially where the defenses are identical. If there are several defendants who are each of them entitled to notice of trial, all must have notice before the plaintiff can move on the trial. On the other hand, all the defendants must have given notice of trial to the plaintiff before any of them can move the trial as against the plaintiff. Wdrd v. Dewey, 12 How. 193. So an action cannot be brought to trial by one or more of the defendants, while there are other defendants who have not been served with the summons nor appeared in the action. Morris v. Crawford, 16 Abb. 124. .Nor can a plaintiff bring a cause to trial against a part of the defendants, while a part of them have not been served with pro- TEIAL AND NEW TRIAL. What issues preferred. cess, nor appeared in the action. Powell v. Finch, 5 Duer, 666. But where two defendants have each a separate and different defense, and appeal by separate attorneys, the court may per- mit one of the defendants to bring on the trial, and if the plaintiff fails to appear, the complaint may be dismissed. Ournee v. Hoxie, 29 Barb. 547. In the last case it is said that " either party " clearly means "either party to the particular issue to be tried." The true construction, however, is that all the plaintiffs consti- tute one party to the action, while all the defendants constitute the other ; and the exception to that rule is that which the Code, section 258, provides, which is, that the court may allow a separate trial between a plaintiff and any of the several defendants when- ever the court is of opinion that justice will thereby be promoted. It will be observed that though there may be several defendants, yet they may all constitute the party mentioned in this section, especially where they all rely upon the same ground of defense. The exception of allowing a separate trial in the instance speci- fied shows the true construction to be that no other exception was intended, because it is a familiar rule of construction that the express mention of one thing excludes the supposition of any other. This view is in harmony with the rule that the court must cause all necessary parties to be brought in before proceed- ing with the trial. Code, § 122. ARTICLE III. PREFERENCE OE ISSUES. Section 1. In general. a. What issues preferred. Several statutes provide what causes or issues shall have a preference upon the calendar, and yet there is such a contradiction in the various sections that the court is left to exercise its discretion in most cases. By section 255 of the Code, issues of law have preference ; while section 257 gives the preference to issues of fact to be tried by a jury, then next after that to issues of fact to be tried by the court, and. lastly, to issues of law. The rule as to circuit calendars has been laid down as follows :: " At the circuit issues of fact to be tried by the jury should b& placed first on the calendar in their order, according to the date TEIAL AND NEW. TRIAL. What issues preferred. of their respective issues. Demurrers, and other issues of law, and issues of fact, to be tried by the court, should be placed by themselves, forming a separate class, as at special term, demur- rers having the preference, and then other issues of law and issues of fact to be tried by the court last." 13 How. 345. Rule 48 provides that causes entitled to preference on the calendar shall, at the general term, be placed on a separate calendar. There are some classes of cases which the statute declares shall have preference, and as to such cases no discretion is allowed, except as between several of such preferred actions. Actions commenced against sheriffs in their official capacity, when brought in any court of record, are entitled to precedence after issue joined, over any and all other cases at issue in such court, not entitled by law to preference. Laws 1871, ch. 733, § 1. In an action by a widow, for dower, when it is made to appear to the court, or a justice thereof, that she has no sufficient means of support aside from the property admeasured to her, etc. This preference extends to circuit, special or general term. Laws 1869, ch. 433, § 5. So in actions in which executors and administrators are sole plaintiffs or sole defendants, and in actions for the construction of, or adjudication upon, a will, in which the administrators with such will annexed, or the executors of such will, are joined as plaintiffs or defendants with other parties, they will have a pref- erence in the court of appeals and in the supreme court, at the general, special and circuit terms, over all actions except in criminal cases. Laws 1870, ch. 49/ Actions against corporations to enforce payment of their notes or other pecuniary obligations have a preference upon the cal- endar at general or special terms, or at the circuits, in all pro- ceedings in such actions. Laws 1849, ch. 226, § 32.' Civil actions or proceedings in which the people of this State are a party, and where the attorney -general is the attorney on record are preferred. Laws 1858, ch. 37, § 1 ; Laws 1850, ch. 128 ; Code, § 13. If there are both issues of law and of fact joined in an action, the issues of law must be first tried unless the court otherwise directs. Code, § 251. When issues of both kinds are brought to trial, and the issues of fact are first tried without objection, this will be considered as TRIAL AND NEW TRIAL. Calendar practice — Trial of issues of law — Trial of issues of fact. a trial by the direction of the court. Warner v. Wigers, 2 Sandf. 635 ; Fry v. Bennett, 9 Abb. 45, 50 ; 3 Bosw. 200. Whenever the cause is moved for trial the court will determine whether the issue of fact shall or shall not be first tried, and no previous order upon the subject is necessary. lb. b. Calendar practice. The court has control over it3 calendar, and the right to regulate the order of trying causes, except in those instances where some statute declares that specified causes shall have preference. Maretzek v. Cauldwell, 4 Rob. 666. In determining whether the issues of law or those of fact shall be first tried, the rule of the Code, section 251, that the issues of law shall be first tried, is a good one to follow. And this is especially true where such issues of law go to the entire cause of action. See Wright v. Williams, 2 Wend. 632 ; Booth v. Smith, 5 id. 107 ; Overseers of Pittstown v. Overseers of Pattsburgh, 15 Johns. 398. Although the plaintiif obtains a verdict upon the issues of fact, yet if the issues of law are decided against him he will be subjected to the costs of the trial of the issues of fact as well as those of law. lb. ARTICLE IV. TRIAL OS THE ISSUES IN THE ACTION - . Section 1. In general. a. Trial of issues of law. The place of trial has been noticed. Vol. 1, pp. 181 to 190. Issues of law must be tried at a circuit court or special term. Code, § 255. An issue of law must be tried by the court unless referred, as provided in sections 270, 271. Code, § 253. The practice on such trials will be hereafter explained. b. Trial of issues of fact. The Code declares that the issues of fact joined in certain classes of actions must be by jury, unless a jury trial be waived under section 266, or be. referred under sections 270, 271, viz. : 1. Actions for the recovery of money only ; 2. Actions for the recovery of specific real or personal property ; 3. Actions for a divorce from the marriage contract on the ground of adultery. Code, § 253. Vol. III. — 2 10 TEIAL AND NEW TRIAL. Trial of issues of fact. In any action which woiild formerly have been known as a common-law action, if an issue of fact is joined, snch issue must be tried by a jury, unless a jury is waived, or it is refer- able because a long account is involved. Hudson v. Oaryl, 44 N. Y. (5 Hand) 553 ; Fire Department v. Harrison, 2 Hilt. 455 ; 9 Abb. 1 ; 18 How. 181. An action to abate a nuisance and to recover the damages which it has caused is one in which a jury trial is a matter of right. Hudson v. Caryl, 44 N. Y. (5 Hand) 553. And, although the complaint is in form for equitable relief against the continuance of the nuisance, and, though the prayer for damages should be regarded as incidental thereto, yet, as the existence of the alleged nuisance and the amount of damages are questions which, before the constitution of 1846, were inquired of by a jury, such action must be considered as one of the causes in which a jury trial has heretofore been used. As to equitable relief by injunction, see Wait's Code, 384 e, 385/, and ante, vol. 2, pp. 19, 20. To authorize a compulsory reference, the action must arise upon contract ; and where the action is founded upon tort, a jury trial is a matter of right. Townsend v. Hendricks, 40 How. 143. This is the rule even though the answer interposes a counter-claim which requires the examination of a long account. lb. Before a party can be deprived of the right to a trial by jury, on the alleged ground that the examination of a long account is involved, it must appear that the accounts to be examined are the immediate object of the suit or the ground of the defense ; and they must be directly and not incidentally and collaterally involved. Kain v. Delano, 11 Abb. 1ST. S. 29, 36. In an action upon an agreement to insure and to deliver a policy, and where a loss occurs before the delivery of the policy, it is not necessary to compel a delivery of the' policy before the plaintiff can recover the insurance, for he may maintain the action upon the agreement and the loss, and take judgment simply for the payment of the amount due. Rockwell v. Hart- ford Fire Ins. Co., 4 Abb. 179. Such an action is one for the recovery of money only, and is to be tried by a jury. lb. The Code provides that, in other cases than those mentioned in section 253, every other issue is triable by the court, which, however, may order the whole issue, or any specific question of TRIAL AND NEW TRIAL. 11 Waiver of jury trial. fact involved therein, to be tried by a jury ; or may refer it as provided in sections 270 and 271. Upon the trial of issues of fact in an equity case, the court may, in its discretion, submit to the jury additional issues which arise upon the proof, and are material to the final determination. Farmers and Mechanics' Bank v. Joslyn, 37 N. Y. (10 Tiff.) 353 ; 4 Trans. App. 308. Where issues of fact are joined in the cases embraced within section 254 of the Code, the court is to determine in all cases whether any or all of such issues shall be tried by a jury. Church v. Freeman, 16 How. 294; O'Brien v. Bowes, 10 Abb. 106 ; 4 Bosw. 657. But such election must be made by the court before the cause has been tried before it. lb. In a proper case the court will, on motion, order a trial by a referee. Carr v. Wehrnan, 2 Rob. 663. c. Waiver of jury trial. A trial by a jury may be waived by the several parties to an issue of fact in actions on contract, and with the assent of the court, in other actions, in the manner fol- lowing : 1. By failing to appear at the trial ; 2. By written consent in person or by attorney, filed with the clerk ; 3. By oral consent in open court, entered in the minutes. Code,' § 266. Where a jury trial is waived in the mode pointed out in this section, it will be valid and effectual ; and even without the aid of a statute, a party may, in a civil action, waive the benefit of a constitutional or a statutory provision which was made for his advantage. Lee v. Tillotson, 24 Wend. 337 ; Detmold v. Dralce, 46 N. Y. (1 Sick.) 318 ; Vose v. Cockoroft, 4A N. Y. (5 Hand) 415, 423. A party who has a right to insist upon a trial by jury may waive it by voluntarily trying the cause before the court without a jury, and without objection. Pennsylvania Coal Co. v. Dela- ware and Hudson Canal Co., 1 Keyes, 72 ; Oreason v. Keteltas, 17 N. Y. (3 Smith) 491, 498 ; McKeon v. See, 4 Rob. 449, 464, 465. But there must be an intention to waive a jury trial, or the acts of the party must be such as to amount to a waiver within the statute, or the right to a jury will continue. In an action upon a foreign judgment, where the issue raised by the answer 12 TRIAL AND NEW TRIAL. When a separate trial will be allowed. amounts to a plea of nul tiel record, this is an issue of fact, and the court cannot regularly try it upon a motion for judgment, as such issue should be tried by a jury. FasnacM v. Stehn, 5 Abb. M". S. 338 ; 53 Barb. 650. Merely excepting to the finding of facts and the conclusions of law will not amount to a waiver of a trial by'jury, nor estop the defendant from insisting upon an appeal that the trial was irreg- ular, lb. A failure of one of several defendants to appear on the trial does not compel the plaintiff to abandon his right to have the damages assessed by a jury. Hendricks v. Carpenter, 4 Rob. 665. But if all the defendants fail to appear on the trial, the plain- tiff may waive a jury and take an inquest before the court. Haines v. Davis, 6 How. 118 ; 1 Code R. N. S. 407. This ought to be done before the jury have been discharged for the circuit. lb. ; Dickinson v. Kimball, 1 Code R. 83. ARTICLE V. SEPARATE TRIALS BETWEEN DIFFERENT PARTIES. Section 1. When a separate trial will be allowed. a. In general. A separate trial between a plaintiff and any of the several defendants may be allowed by the court whenever, in its opinion, justice will thereby be promoted. Code, § 258. It will be observed that this right to grant a separate trial is limited to the case of a plaintiff and any of the several defend- ants. This section does not provide for a separate trial between several defendants. And, although section 274 of the Code authorizes a judgment which will determine the ultimate rights of the parties on each side, as between themselves, yet it does not extend to a case in which separate defendants wish to litigate questions in which the plaintiff has no interest, and which ought to be the subject of a separate action. Kay v. WhittaJcer, 44 K. Y. (5 Hand) 565, 576. Separate defendants can have no relief as against each other, unless it is in a case in which they have appeared and answered, in reference to a claim made against them by the plaintiff, and as a part of that claim ; and separate relief must be based upon the TEIAL AND NEW TRIAL. 13 When a separate trial will be allowed. facts involved in and brought out by the litigation and investi- gation of that claim. lb. In such a case where all the parties are before the court, and where all have been heard, and all the facts are properly before the court, the rights as between plaintiff and defendants not only, but as between the parties on either side, can be adjusted. lb. See Mechanics & leaders' Saving Institution v. Roberts. 1 Abb. 381 ; Woodworth v. Bellows, 4 How. 24 ; 1 Code R. 129 ; Norbury v. Seeley, 4 How. 73 ; 2 Code R. 47. If the plaintiff could have maintained a separate action against any one of the defendants, upon the facts in the case, then a sep- arate judgment may be entered, and it will be a case in which a separate trial may be allowed. Harrington v. HigJiam, 15 Barb. 525 ; BrwnsTcill v. James, 11 N. Y. (1 Kern.) 294. The order for a separate trial may be made at the circuit when the cause is brought on for trial, or it may be made at a special term ; and if no formal order is made and entered, but a separate trial is permitted by the court, this will be sufficient. Gurnee v. Hoxie, 29 Barb. 547. CHAPTER II. TRIAL BY JURY ARTICLE I. PROCEEDINGS OS A TRIAL BY JURY. Section 1. Origin of trial by jury. a. In general. An extended history of a trial by jury is not expected in this place ; and yet a brief sketch will be both inter- esting and nseful to the student. It is to the English system of jurisprudence and its history that we must resort for this infor- mation. The system itself is one that has frequently under- gone changes more or less important. In the early practice the whole body of the freeholders assembled at the county court, or court of the hundred, or a certain number was selected by consent of the parties, under the presidency of the sheriff as the substitute for the earl, and disposed of the question as regards both law and fact ; none of them, so far as can be now discovered, being sworn ; their verdict was the judgment. Under the next system, instead of proceeding before the whole body of the county, twelve persons from the vicinage were selected, by virtue of the king' s writ, to give the verdict ; thfe persons so selected being duly sworn. The next modification was the selection of a certain number for the trial of particular actions in the king' s court, namely, the grand assize and recog- nitions ; here the judgment, founded on the verdict, was given by the court. In the proceedings in assizes the jury, or persons to whose decision the question was submitted, were the recognitors ; that is, they decided simply on their own knowledge or from tradi- tion, and not upon evidence, and for this reason they were always selected from the hundred or vicinage in which the ques- tion arose. But as regards the inquests taken by what may be called the common juries, which were composed, not of knights only, but of other lawful men selected by the sheriff, though* also selected from the vicinage, the rule was not so^strict ; they might decide on the testimony of those who could speak to what they had seen or heard ; their verdict, therefore, was not liable TRIAL BY JURY. 15 Origin of trial by jury. to the process of attaint. Such inquests were necessarily resorted to in many cases. In the proceedings by jury trial it was necessary that twelve should concur ; therefore, in case of disagreement in proceedings by assize, others from the vicinage conversant with the matter were sought for and added to the recognitors or jury till a ver- dict by the requisite number could be obtained. The great diffi- culty of procuring a verdict of twelve caused, for a time, the verdict of the majority to be received ; but in the time of Edward III the necessity for an unanimous verdict of twelve was re-estab- lished. In the reign of Henry III trial by recognitors and by wit- nesses joined together in one jury, came into use ; thus, in the case of a disputed deed, the witnesses to the deed were sum- moned together with the recognitors from the vicinage to try the question. In the 23d Edward III, the witnesses, instead of being summoned as constituent members, were adjoined to the recog- nitors or jury in assizes, to afford to the jury the benefit of their testimony, but without having any voice in the verdict. This is the first indication we have of the jury deciding on evidence formally produced, and it is the connecting link between the ancient and modern jury. The jury, subject to the peril of attaint, might, if they chose, decide contrary to the testimony of the witnesses, as to which they were the sole judges ; they were still so fa« recognitors that they were to decide on their own knowledge, if they possessed any. While the jurors were mere recognitors, the court exercised a very vigilant superintendence in examining each of the jurors separately, in doubtful cases, to see whether the knowledge of the facts, which the jurors by their verdict professed to have, were drawn from legitimate sources ; but this security failed, or at least was very difficult of application when the jurors might give their verdict on a balance of testimony. This appears to have occasioned another change in the mode of jury trial which was effected sometime before the 11th Henry IV, namely, that all the evidence on which it was intended that the jury should Tely in forming their verdict should be given at the bar of the court ; so that the judges might have the opportunity of exclud- ing from the consideration of the jury all evidence of a character that ought not to be permitted to influence their judgment. 16 TRIAL BY JURY. Origin of trial by jury. This effected a change in the mode of trying civil causes, the importance of which can hardly be too highly estimated. Jurors from being, as it were, the mere recipients and depositaries of knowledge, exercised the more intellectual faculty of forming conclusions from testimony, a duty not only of high importance with a view to truth and justice, but also collaterally in encouraging habits of reflection and reasoning (aided by the instructions of the judges), which must have had a great and most beneficial effect in promoting civilization. The exercise of the control last adverted to on the part of the judges was the foundation of that system of rules in regard to evidence which has since constituted so large and important a branch of the law of England and of this country. The practice of receiving evidence openly at the bar imme- diately led to another remarkable result, namely, the great extension of the duty of the advocate. In earlier times, upon criminal as well as civil inquiries, the jury, after they had been sworn and merely charged by the court as to the points at issue, retired to consult together in secret, without hearing either wit- nesses or counsel at the bar. But now the scene was totally changed ; witnesses were examined and cross-examined. in open court ; the flood-gates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and powers of persuasion on the jurors, to whose discretion the power of judging on matters of fact was now intrusted. Another important consequence followed. When the jury in an assize gave, or were presumed to give, their verdict upon facts within their knowledge, if they came -to a wrong decision they must usually have been guilty of perjury. When they became judges of the facts upon evidence, the liability to attaint would have been as unreasonable and unjust as in the case of an ordin- ary jury ; it therefore virtually fell into disuse. Thenceforth the means of correcting error and mistake on the part of the jury was left without adequate remedy in the courts of law until the seventeenth century, when the practice of granting new trials was introduced. The last change in the institution of jury trial is of compara- tively modern introduction. It is the limiting of the functions of the jury to that of being judges of fact upon the evidence laid before them. The principles which warrant this change are obvious. It was found that the cause of truth suffered more TRIAL BY JURY. 17 Eight to jury trial in what cases. from the prejudices which the residence of jurors in the neigh- borhood of the disputed facts were likely to engender, than was gained from knowledge and means of judging so acquired. Other inconveniences arose from the rules as to the venue, so that, after various modifications as to the number of persons from the hundred or vicinage that were to be put upon the jury by the statute (4 and 5 Anne, ch. 16, and 24 Geo. II, ch. 18), the law requiring jurors to be returned from the vicinage or hundred was abolished in all civil actions, and it was directed that they should be summoned from the body of the county. By a decision in the court of queen' s bench, in the first year of Queen Anne, it was held that, if a jury gave a verdict of their own knowledge, they ought so to inform the' court, that they might be sworn as witnesses. This, and another case in the reign of George I, put an end to all remains of the ancient functions of juries as recog- nitors. The question, therefore, when did the trial by jury begin ? admits of no definite answer, otherwise than by referring to the different transitions to which allusion has been made. See 1 Spence's Eq. Jur. 112, 113, 128, note; 3 Bl. Com. 349-366 ; 3 Broom & Had. Com. 355-361. The right to a jury trial, and the mode of trial in this State, has always been substantially as at present ; and it is the object of the present chapter to give that practice in full. o. Right to jury trial in what cases. This subject has already been noticed. Ante, 9, 10, 11. It is important to remember the distinction which existed under the former practice in relation to trials at law, and those in equity. It has been seen that in actions at law the general rule was that issues of fact were tried by jury (vol. I, 14, 15), while such issues were tried by the court in equity cases. Yol. I, 20, 21. And, notwithstanding the union of the two systems of law and equity under the same jurisdiction, it was intended to retain the same mode of trial under the present system ; and, as a gen- eral rule, a jury trial is proper in all cases in which the recovery of money is claimed by way of damages for the breach of any contract, express or implied, or for the damages resulting for any tort or wrong. Such actions may be for the recovery of money due upon bills of exchange or promissory notes, or bonds, or for the price of property sold, or for services rendered, or for the non-performance of a contract, and in like cases ex Vol. Ill — 3 16 TEIAL BY JURY. Origin of trial by jury. This effected a change in the mode of trying civil causes, the importance of which can hardly be too highly estimated. Jurors from being, as it were, the mere recipients and depositaries of knowledge, exercised the more intellectual faculty of forming conclusions from testimony, a duty not only of high importance with a view to truth and justice, but also collaterally in encouraging habits of reflection and reasoning (aided by the instructions of the judges), which must have had a great and most beneficial effect in promoting civilization. The exercise of the control last adverted to on the part of the judges was the foundation of that system of rules in regard to evidenpe which has since constituted so large and important a branch of the law of England and of this country. The practice of receiving evidence openly at the bar imme- diately led to another remarkable result, namely, the great extension of the duty of the advocate. In earlier times, upon criminal as well as civil inquiries, the jury, after they had been sworn and merely charged by the court as to the points at issue, retired to consult together in secret, without hearing either wit- nesses or counsel at the bar. But now the scene was totally changed; witnesses were examined and cross-examined. in open court ; the flood-gates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and powers of persuasion on the jurors, to whose discretion the power of judging on matters of fact was now intrusted. Another important consequence followed. When the jury in an assize gave, or were presumed to give, their verdict upon facts within their knowledge, if they came to a wrong decision they must usually have been guilty of perjury. When they became judges of the facts upon evidence, the liability to attaint would have been as unreasonable and unjust as in the case of an ordin- ary jury ; it therefore virtually fell into disuse. Thenceforth the means of correcting error and mistake on the part of the jury was left without adequate remedy in the courts of law until the seventeenth century, when the practice of granting new trials was introduced. The last change in the institution of jury trial is of compara- tively modern introduction. It is the limiting of the functions of the jury to that of being judges of fact upon the evidence laid before them. The principles which warrant this change are obvious. It was found that the cause of truth suffered more TRIAL BY JURY. 19 Advantages and disadvantages of jury trials. Freeman, 16 How. 294 ; McCarty v. Edwards, 24 id. 236. See, also, O'Brien v. Bowes, 10 Abb. 106 ; 4Bosw. 657 ; Wilson v. Forsyth, 16 How. 448. Where issues of fact in an equity case are tried by a jury, the court may submit to the jury such addi- tional issues of fact as may arise upon the proofs when they are material to the final determination of the case. Farmers & Mechanics' Bank v. Joslyn, 37 N. Y. (10 Tiff.) 353 ; 4 Trans. App. 308. An equitable action to set aside a conveyance, on the ground of fraud, is one which the court may try, or it may order a jury trial, which, however, will not be done when the circuit calendar is crowded with business. McMahon v. Allen, 10 How. 384; Draper v. Day, 11 id. 439. In actions of quo warranto, the issues of fact are properly triable by the court, though the court may order the whole or any of the issues to be tried by a jury. People v. Albany & Susquehanna B. R. Co., 7 Abb. N. S. 265; 1 Lans. 308; 55 Barb. 344 ; 38 How. 228 ; 2 Lans. 459 ; 57 Barb. 204. In an action to charge the separate estate of a married woman, the action is an equitable one, triable by the court without a jury. Oheseborough v. House, 5 Duer, 125. There are many questions which arise in equity causes in which the investigation of some matter of fact becomes import- ant before a judgment can be properly rendered or entered, and in such cases a reference is ordered. See Interlocutory Decrees and Orders. Code, §§ 246, 271, subd. 2. In equity practice, the court frequently referred a part or all of the issues of fact for trial by a jury, and this power is con- tinued by the Code, §§ 254, 271, 246, subd. 2. A reference may be ordered instead of a jury trial if the court prefers that mode of trial. lb. d. Advantages and disadvantages of jury trials. This sub- ject is sufficiently noticed in a subsequent chapter. See Refer- ence. Section 2. The settlement of issues of fact for trial. a. When not necessary. In actions for the recovery of money only, or for the recovery of specific real or personal property, it is not necessary nor is it proper, to apply for the settlement of special issues for trial. The issue joined by the service of the several pleadings raises and presents the issues to be tried. So when "the trial is by the court, instead of a jury, no special 20 TRIAL BY JURY. Settlement of issues, when necessary — Application for settlement of issues. issues need be settled. In equity cases, in which the issues and matters to be decided may be very complicated, the court can readily dispose of them upon the evidence and the law of the case. But such complicated issues could not be understood or remembered by a jury, and, therefore, all matters submitted to them upon special issues in such actions are reduced to the simplest form, and one admitting a direct affirmative or nega- tive, or at least of a brief finding. b. Settlement of issues, when necessary. In cases where the trial of issues of fact is not provided for in section 252 of the Code, if either party desires a jury trial an application must be made to the court to settle such issues, which application will, in a proper case, be granted, and the issues will be settled by the court, or a judge, or by a referee appointed for that purpose. Sup. Ct. , Rule 40. As has been already stated, the right to try such issues by a jury is entirely discretionary with the court. Ante, 9, 10, 11. The number of instances in which the court may order such issues to be tried by a jury, or by a referee, is very great. It includes all issues not embraced in section 253 of the Code. Code, § 254. The former equity practice of awarding and trying feigned issues has been abrogated, but all the cases in which such an issue could have been made under that practice, and all cases of questions of fact not put in issue by the pleadings may now be tried upon an order made, which distinctly and plainly states the question to be tried. Code, § 72 ; Sup. Ct., Rule 40. In actions for a divorce on the ground of adultery, the issues of fact upon the questions of adultery to be tried by a jury must be settled before the cause can be noticed or tried in that mode. Sup. Ct., Rule 40 ; Leslie v. Leslie, 11 Abb. N. S. 311. The case of ParTcer v. Parker, 3 Abb. 478, was decided before the present rule of court. See 1 Van Sant. Eq. Pr. 265. c. Application for settlement of issues. In cases where the trial of issues of fact is not provided for in section 253 of the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special mo- tion to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by jury. With the notice of motion shall be served a copy of the ques- tions of fact proposed to be submitted to the jury for trial, and TRIAL BY JURY. 21 Form of the issues to be tried. in proper form, to be incorporated in the order ; and the court or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in section 72 of the Code of Procedure. Sup. Ct., Rule 40. Although rule 40 requires the application for a jury trial to be made within ten days after issue joined, the court may, notwith- standing this rule, hear and grant the application after this time. ClarJc v. BrooTcs, 26 How. 285. As to deviating from the rules, see vol. 1, 462, 463. The motion may be made by any of the parties to the action, though, if there are several defendants who are united in inter- est, it ought to be made by all so united, and notice of the motion ought to be given to the attorneys of all the other parties who have appeared in the action. Where there is no opposition to the motion, the order will be granted as of course ; and, in that case, the moving party will insert in the order the questions of fact as they were served with the notice of motion. If the opposite party is not satisfied with the form of the questions of fact proposed, or if he does not desire a jury trial, he may appear and oppose the motion. Where the objection relates merely to the form of the ques- tions of fact proposed, the court will settle the issues, or refer them to a referee for settlement. The objecting party will pre- sent such issues as he deems proper at the time of settling such issues of fact. If a reference for the settlement of the issues is ordered, it ought to be duly drawn up and entered, and due notice given of the time and place of settlement by such referee. The referee will report the issues as settled. by him, and his re-port should be filed, and a copy of it, together with a copy of the order direct- ing what issues shall be tried, served on the opposite party. The power of the court to order the trial of issues of fact upon its own motion has been noticed. Ante, 10, 11. d. Form of the issues to be tried. The fortieth rule of the supreme court provides, that the issues must be in the form pre- scribed in section 72 of the Code. That section requires that the questions of fact to be tried shall be stated distinctly and plainly. The order for such trial is all the authority necessary. Code, § 72. 22 TRIAL BY JUEY. Notice of motion for issues to be tried by a jury. Notice of motion for issues to be tried by a jury. {Title of cause.) Sir — Please take notice that a motion will be made at the next special term of this court, appointed to be held at, etc., on, etc., at the opening of the court on that day, or as soon thereafter as counsel can be heard,, that the issues (copies of which are hereto annexed and served) arising upon the pleadings in this action be settled, and the same ordered to be tried by a jury. Yours, etc., {Dated, etc.) E. B., Plaintiff'' s Attorney. To C. T. B., Esq., Defendants Attorney. Copy of issues proposed for jury trial. {Title of cause.) 1. Were the plaintiff and the defendant, partners in the grocery trade, on the day of, etc. ? 2. Did such partnership continue up to the day of, etc. ? Or, in a divorce case : 1. Did the defendant in this action commit adultery with one A. B., at, etc., on, etc. ? 2. Was such adultery (if committed) condoned by the volun- tary cohabitation of the plaintiff with the defendant after full knowledge of the fact of such adultery ? 3. Is the plaintiff living in adulterous intercourse with one C. D., at the city of, etc., as alleged by the defendant in her an- swer ? 4. How much more than five years elapsed since the fact of such adulterous intercourse came to the knowledge of the de- fendant, etc. % E. B., Plaintiff's Attorney. Order of reference to settle issues. {At a special term, etc.) {Present, etc.) {Title of cause.) On motion of E. B., attorney for the plaintiff, and after hearing C. T. B., attorney for the defendant, it is ordered that it be re- ferred to D. McM., Esq., referee, to settle the issues arising upon the pleadings in this action, upon the several questions of fact proposed by the respective parties to this action. Report of issues as settled by referee. {Title of cause.) The undersigned referee, to whom it was referred by an order in this action, bearing date the, etc., to settle the issues arising TRIAL BY JUEY. 23 Order directing issues to be tried by a jury — Trial of the issues of fact. upon the pleadings in this action, respectfully reports the fol- lowing (or the annexed) as the issues so settled by him on the several questions of fact proposed by the respective parties. D. McM., Referee. To this report the referee will annex the issues as he has settled them. If the court settles the issues, and orders them to be tried by a jury, the order ought to be duly entered, and may be in the following form : Order directing issues to be tried by a jury. (At a special term, etc.) (Present, etc.) (Title of cause.) Upon reading the pleadings in this action, and after hearing E. B. of counsel for the plaintiff, and C. T. B. of counsel for the defendant, it is ordered that the following issues of fact be tried by a, jury at the proper circuit court. 1. (State all the issues fully and distinctly as the court has settled them), and all further 'directions are reserved until after the trial of said issues. A copy of the order ought to be served upon the opposite party, either before or with the notice of the trial of such issues. It has already been stated, that the court may order the trial of such issues of fact upon its own motion. Ante, 10, 11. e. Trial of the issues of fact. When special issues of fact have been settled and ordered to be tried by a jury, they are brought to trial upon due notice in the same manner as any other issues of fact. And the trial is conducted in the same general manner as other jury trials. The verdict, however, ought to be so rendered as to answer fully and distinctly all the questions pro- posed in the issues. This may be done by directing the jury to respond to each question separately ; and if the issues are num- bered, the findings may be readily applied to the proper issue. The finding of the jury ought to be in writing, and be filed with the clerk and entered upon the minutes by him. Code, §261. A written finding, even when expressly directed by the court, may be waived by the parties, if they accept an oral finding, or a general verdict instead of a special one. Moss v. Priest, 19 Abb. 314 ; 1 Rob. 632. 24 TEIAL BY JURY. Review of errors on the trial — Notice of trial. The finding of the jury upon issues of fact in equitable actions is merely for the information of the court. Wood v. Mayor, etc., ofN. T., 4 Abb. K". S. 152, 157 ; Clark v. Brooks, 2 id. 385, 406, 407 ; Lansing v. Russell, 2 N. Y. (2 Comst.) 563 ; Candee v. Lord, id. 269. /. Review of errors on the trial. Whenever any such special or specific question of fact has been tried by a jury, or by a referee, the usual mode of making a case or exceptions, or a case containing exceptions, is the regular practice. Sup. Ct., Eule 40. It is important that a new trial should be moved for, unless the party is willing to permit the finding to stand as a final one in the case. lb. The motion should, in the first instance, be made at the special term. lb. As to the former practice see Snell v. Loucks, 12 Barb. 385.. No appeal lies from an order settling issues of fact in an equita- ble action for the purpose of having them tried by a jury. Wood v. Mayor of N. Y., 4 Abb. N. S. 152, 157 ; Clark v. Brooks, 2 id. 385, 406, 407. Section 3. Notice of trial. a. In general. A notice of trial of. some kind is, in general, indispensable to the regular trial of an action. A formal tech- nical notice may not be in all cases required, as in the case of a mutual consent to try the cause, and an actual trial, in pursu- ance of the agreement ; for, in that case, neither party would be permitted to allege the want of a written notice. The Code has express provisions in relation to a notice of trial. Code, §§ 256, 258, 412, 417. Although the parties may bring an action to trial upon a stipulation, or by consent, and though such trial may be held regular, yet the only correct practice is to give due and regular notice. In most cases this notice is the only mode of getting the cause tried, as one party or the other may not be ready or willing to bring the trial on. It frequently happens that a cause is not reached at the circuit for which it was noticed. In such case a new notice is necessary for the next circuit, if it is desired to try the cause at that time. And this notice must be renewed as often as the cause may go over the regular term or circuit. Either party giving the notice may bring the issue to trial. Code, § 258. At any time after issue, and at least four- TRIAL BY JURY. 25 Notice of trial. teen days before the court, either party may give notice of trial. Code, § 256. See, also, § 412. These sections evidently contemplate a notice of trial for each and every circuit at which either party may attempt to bring the action to trial. If the cause is put over the term, a new notice of trial is necessary. And, under the former English practice, this was the case even when the trial was set down for a certain day or term. Ellis v. Trusler, 2 W. Bla. 798 ; Ifleld v. Weeks, 1 H. Bla. 222 ; Oawley v. Knowles, 16 0. B. K S. 107 ; Jacks v. Mayer, 8 T. R. 245 ; Gains v. Bilson, 4Bing. 414 ; 1 M. & P. 87 ; Shepherd v. Butler, 1 Dowl. & Ryl. 15. If a cause was made a remanet at the assizes a new notice was necessary for the next assizes. Gains v. Bilson, 4 Bing. 414 ; 1 M. & P. 87. So where a cause was postponed by a rule of court. Shepherd v. Butler, 1 Dowl. & Ryl. 15 ; Jacks v. Mayer, 8 T. R. 245. If the cause was made a remanet to the next sittings or assizes, by an order of nisi prius, a new notice was not necessary. lb. In a late case, where a defendant had obtained a postpone- ment from one sitting to the next, by virtue of a judge's order, a new notice for such sittings was not required. Claudet v. Prince, L. R., 2 Q. B. 406 ; 8 B. & S. 360. But see Catoley v. Knowles, 16 C. B. N. S. 107, which required a notice. As to the effect of an injunction upon a notice of trial, see Stockton & Darlington Railway Co. v. -Fox. 6 Exch. 127 ; 2 L. M. & P. 141 ; 20 L. J. Exch. 96. A notice of trial in due time, according to the practice of the court, is regular, although a previous notice has been given which is void, and has not been countermanded. Fell v. Tyne, 5 Dowl. P. C. 246 ; 2 H. & W. 299. On a new trial, a fresh notice of trial is necessary. Bingly v. Mallison, 3 Doug. 402. There must be an issue to authorize a notice of trial, and where the only defense is a set-off or counter-claim, the cause ought not to be noticed for trial. Pardee v. Schenck, 11 How. 500. An application for judgment under section 246 of the Code is the proper practice. lb. A mere agent who is not a regularly admitted attorney cannot give a proper notice, nor act as attorney. McKoan v. Demies, 3 Barb. 196 ; 1 Code R. 6 ; '6 N. Y. Leg. Obs. 203 ; Billiard v. Vol. Ill — 4 26 TEIAL BY JURY. By whom notice of trial may be given. Van Tassell, 3 How. 402 ; Weir v. Slocum, id. 397 ; 1 Code R. 105. So of a notice given by one who has ceased to be an attorney. Patterson v. Powell, 9 Bing. 620 ; S. C, 2 M. & S. 773. o. By whom notice of trial may he given. Notice of trial may be given by either party. Code, §§ 256, 258. It is the duty of the plaintiff, in all cases, to notice the cause and bring it on for trial. And if he unreasonably neglects to proceed in the cause the court may dismiss his complaint. Code, § 274. The defendant may notice the cause and bring it to trial, although he is not under any obligation to do so. He may omit to give such notice, and may, if the plaintiff unreasonably neg- lects to proceed in the action, move at a special term for a dis- missal of the complaint for that cause. Bowles v. Van Home, 11 Abb. 84 ; 19 How. 346 ; Roy v. Thompson, 1 Duer, 636 ; 8 How. 253 ; Garter v. Clark, 2 Sweeny, 189 ; Perkins v. Butler, 42 How. 102 ; Gorbett v. Glaflin, 17 Abb. 418. See Dismissal of Complaint, vol. 2, 608 to 611. The cases of Moeller v. Bailey, 14 How. 359, and Winchell v. Martin, 14 Abb. J5T. S. 47, which hold, that a failure of the plaintiff to notice the cause for trial, and the trial of later issues, is no ground for dismissing the complaint, does not seem to give full effect to section 274 of the Code, which provides that an unreasonable neglect to proceed in the cause is a ground of dismissal. ~Now, a notice of trial and a trial are both proceedings in an action, and an unreasonable neg- lect by the plaintiff in relation to them is plainly within the let- ter and the spirit of the statute, independently of any rule of court. If the defendant desires nothing more than a dismissal of the complaint, a motion for that purpose will be sufficient in a proper case for the motion. But if the answer claims, and the defendant seeks affirmative relief, then the proper course will be to notice the cause for trial, and such relief may be obtained if the law and the facts warrant such a judgment. Hoy v. Thompson, 8 How. 253 ; 1 Duer, 636 ; Wilson v, Wheeler, 6 How. 49 ; 1 Code R. 1ST. S. 402. Where there are several defendants, and the defenses are iden- tical, the notice of trial ought to be given by all the defendants. But where there are several defendants, each of whom has a dis- tinct and separate defense, and where they appear by separate attorneys each defendant may notice the cause, and, by the per- mission of the court, may bring the cause to trial and take a dis- TRIAL BY JURY. 27 Notice of trial, to whom given. missal of the complaint, or a separate judgment, if the plaintiff fails to appear. Oumee v. Hoxie, 29 Barb. 547 ; Bishop v. Mor- gan, 1 Code R. N. S. 340 ; Bridgeford v. Wiseman, 16 Mees. & Wels. 439 ; Haddrick v. Heslop, 12 Q. B. 267, 928 ; 11 Jur. 1012 ; 16 L. J. Q. B. 442 ; Rhodes v. Thomas, 2D.&L. 553 ; Sawyer v. Hodges, 1 D. 1ST. S. 16. c. Notice of trial, to whom given. Generally, a notice of trial is given by the plaintiff to the defendant, or by the defendant to the plaintiff. If there are several defendants who have appeared in the action, a notice of trial must be given to all, although but a part of them put in answers. Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 349; Ward v. Dewey, 12 How. 193. The Code, section 274, which permits the court to determine the rights of the parties as between themselves, is limited to cases which grow out of claims by the plaintiff against the defendants, and not to a case in which the defendants make claims against each other, in which the plaintiff has no interest. Kay v. Whit- taker, 44 K Y. (5 Hand) 565, 576. See vol. 2, 476. In such a case a notice of trial given by one of the defendants to another would be useless, as the court would not try such claims made between defendants. See, also, Decker v. Judson, 16 N. Y. (2 Smith) 439, 450, in opinion ; Stephens v. Hall, 2 Rob. 674, 676 ; Mechanics & Traders' 1 Savings Institution v. Roberts, 1 Abb. 381 ; Wells v. Smith, 7 id. 261, 263 ; Noroury v. Seeley, 4 How. 73. And if the court would hear such claims, there ought to be statements in the nature of pleadings between the defendants. Decker v. Judson, 16 N". Y. (2 Smith) 439, 450 ; Stephens v. Hall, 2 Rob. 674, 676. When the defendant appears by attorney, the notice must be served upon him. Code, § 417. And, if there are several de- fendants who appear by separate attorneys, the notice must be served upon each of such attorneys. Attorney-General v. Ste- vens, 3 Price, 72. But when the attorney of either party has become a non-resident of the State, the service of a notice upon him is irregular. Diefendorf v. House, -9 How. 243. See 2 R. S. 287 (298), § 67. If, however, the attorney resides in a State adjoin- ing this, and his office for the transaction of law business is in this State, the statute declares the mode of service thus: "Pro- vided, that service of papers which might, according to the practice of the courts of this State, be made upon said attorney at his residence, if the same were within the State of New York, 28 TEIAL BY JUKY. At what time notice of trial is to be given. shall be sufficient, if made upon him by depositing the same in the post-office in the city or town wherein his said office is located, directed to said attorney at his office, and paying the postage thereon, and such service shall be equivalent to personal service at the office of such attorney." Laws 1866, ch. 175, § 1, which repeals Laws 1862, ch. 43. d. At what time notice of trial is to be given. Notice of trial may be given at any time after issue has been joined, but at least fourteen days before trial when personally served (Code, § 256), or sixteen days when served by mail. Code, § 412. Before a notice of trial can be properly served there must be issues joined between the plaintiff and the defendant. Code, § 256. See the cases cited ante, 3 to 6. If some of the defendants serve answers and an issue is joined, and some of the defendants do not put in answers, but serve a notice of appearance, the cause may be regularly noticed after the time to answer has expired as to such defendants. See ante, 3 to 6 ; see, also, Code, § 246, subd. 2. The notice of trial may be served as soon as the issue is com- plete, but it will be subject to the right to amend the pleadings ; and the service of an amended pleading by the opposite party, in good faith, may render the notice of trial useless. Cusson v! Whalon, 5 How. 302 ; 1 Code R. N. S. 27 ; Evans v. Lichten- stein, 9 Abb. TS. S. 141 ; Washburn v. Herrick, 4 How. 15; 2 Code B,. 2 ; Morgan v. Leland, id. 123. So the service of a demurrer may have the same effect. Hawley v. Hanehet, 1 Cow. 152. See, also, Miller v. Stocking, 22 Wend. 625 ; Shultys v. Owens, 14 Johns. 345. In actions for a divorce for adultery the issues must be settled before the cause can be noticed for trial or put upon the calen- dar. Leslie v. Leslie, 11 Abb. K S. 311 ; Sup. Ct. Rule 40. Although the issues ought to be complete before notice of trial, yet the court may amend the pleadings at the trial so as to obviate the objection when no injustice will be done to either of the parties. Berresford v. Geddes, L. R, 2 C. P. 285. In the case last cited there were two counts in the deolaration, and issues were joined as to the first count, No issue was joined on the replication to the plea to the second count, and upon the trial the court, on the plaintiff's motion, struck out that count although the defendant objected, but the ruling was sustained. See, also, Code, § 176. A notice of trial served by mail may be made sixteen days TRIAL BY JURY. 29 For what term or time the cause ought to he noticed. before the trial, including the day of service, and such service is valid, although the sixteenth day falls on Sunday before the Monday for which the cause is noticed. Central Bank of West- chester Co. v. Alden, 41 How. 102. Therefore a service made by mail, on the fourth day of the month, for trial on Monday, the twentieth, is good. lb. e. For what term or time the cause ought to be noticed. Issues of fact to be tried by 'a jury are to be noticed for trial at a circuit court to be held in the county named in the complaint as the place of trial. If the place of trial has been changed, then the uotice must specify the county to which the cause has been trans- ferred for trial. Code, § 126. Causes may be noticed for an adjourned circuit or county court, in the same manner as though held by original appointment. Code, § 24. A plaintiff is bound to notice a cause for an adjourned circuit, in the same manner that he would be required to give notice for a regular circuit. Parkins v. Stephenson, 10 Wend. 620. In case of malignant epidemic diseases at the place and time appointed for holding court, the place of trial may be changed by the judge ; and all causes noticed for the place originally appointed, will be' heard at such adjourned place and the notices will apply to that place. Laws 1866, ch. 174. The notice of trial should be for the the first day of the term at which it is intended to try the cause ; and the cause may be moved for trial whenever regularly reached during that term. The whole period of a term or circuit is regarded as but one day, and any recovery or other proceedings had therein will be held to relate to, and to have been had at or on, the first day of the cir- cuit or term. Manchester v. Herrington, 10 N. Y. (6 Seld.) 164. f. Short notice of trial. The court sometimes grants a favor to a defendant, such as relieving him from some default or omis- sion, and a condition is frequently imposed that he shall accept short notice of trial. In the English practice short notice means a notice of four days. Reg. Gen., 1 El. & BL, App. ix. And in an early case in this State a notice of four days was held to be a short notice. Cheetham v. Lewis, 2 Johns. 105. A short notice is defined to be a notice of less than the ordinary time ; generally of half that time. Burr. Diet. Half the usual notice is said to be proper. 1 Paine & Duer's Pr. 459. If that rule pre- vails, a notice of seven days would now be required if the ser- vice is personal, or a notice of eight days by mail. All questions 30 TRIAL BY JURY. Omitting to notice cause for trial. as to time can be avoided by specifying the length of time in the order imposing the terms of short notice. Where the defendant is under terms of taking short notice of trial it is usual to give as long a notice as the time will permit. 1 Archb. Pr. 314, 12th ed. ; Tidd, 757, 9th ed. The defendant is not bound to take short notice when the plaintiff has sufficient time to give full notice. Nicholl v. For shall, 15 L. J. Q. B. 203 ; Woolley v. Aldritt, 17 L. T. N. S. 120. Where the defendant is under terms of taking short notice of trial, if necessary, it lies upon the plaintiff to show the necessity of a shorter notice than the ordinary one. Drake v. Pickford, 15 Mees. & Wels. 607 ; 15 L. J. Exch. 340. Where the defendant is under terms of taking short notice for a particular circuit or term, he is not obliged to take short notice for any subsequent circuit or term. Blatter v. Painter, 8 Mees. & Wels. 672; 1 D. 1ST. S. 35; 5 Jur. 636; Bignam v. Mostyn, 6 Dowl. 547 ; Abbott v. Abbott, 7 Taunt. 452 ; 1 Moore, 160 ; White v. Clarice, 8 Dowl. 730. So if the defendant is required to take short notice of trial he is not bound to take short notice of inquiry. Blaaw v. Chaters, 6 Taunt. 458 ; Stevens v. Pell, 2 Dowl. 355 ; 2 C. & M. 421 ; 4 Tyrw. 267. Nor need he take less than the usual notice of countermand. King v. Jones, 1 Dowl. 640 ; 1 C. & M. 71 ; Doncaster v. Car dwell, 5 Dowl. 582 ; 2 M. & W. 391. Sometimes the defendant will be put under terms of taking less than four days' notice of trial. Lawson v. Robinson, 2 Dowl. 69 ; 1 C. & M. 499 ; 3 Tyrw. 490. A defendant is not under any obligation to take short notice of trial unless the court or a judge has imposed such terms or conditions. g. Omitting to notice cause for trial. It is important to either party to notice the cause if he desires to bring it on for trial. If the plaintiff omits to notice the cause he will not be permitted to move it for trial, even though the defendant may have noticed and put it on the calendar. It is the party who gives the notice that is entitled to bring on the issues for trial. Code, § 258. Beside this it has been seen, ante, 26, that the plaintiff's com- plaint may be dismissed for a neglect to notice it. It is equally important that the defendant should notice the cause if he would bring it on for trial, or would dismiss the com- TRIAL BY JURY. 31 Omitting to notice cause for trial. plaint. See Code, § 258. The rule of practice is, that neither party can move the cause for trial unless he has properly noticed, it. And if no notice of trial is given, or the notice is irregular and insufficient, and the plaintiff proceeds with the trial, and takes a verdict, in the absence of the defendant, the court will, on the application of the latter, set the verdict aside. Jeriks v. Payne, 15 Johns. 399 ; Williams v. Williams, 2 Dowl. 350 ; Wright v. Oarr, 2 Jur. 516 ; Cotton v. Thompson, 5 id. 270 ; Nicholl v. Forshall, 15 L. J. Q. B. 203 ; Shepheard v. Thomp- son, 9 Mees. & Wels. 110 ; 1 Dowl. TS. S. 345. Where the notice is defective, or the service of it irregular, the irregularity may be waived ; and if the defendant appears and defends the action, this will waive the defect, or even the want of a notice. Doe d. Antroous v. Jepson, 3 B. & Ad. 402 ; Fraas v. Paravicini, 4 Taunt. 545 ; Oillingham v. WasTcett, Mc- Clel. 198 ; 13 Price, 484 ; Younge v. Fisher, 4 M. & Gf. 814 ; 2 Dowl. N. S. 637; 5 Sc. N. R. 893. A few of the English cases may, perhaps, be usefully noticed in this place. Where there is a defect in a notice, and a motion is made to set the notice aside on another ground, and the motion is denied, it will be a waiver of the defect. Farmer v. Mountfort, 9 Mees. & Wels. 100 ; 1 Dowl. K S. 366. So, where a motion is made to strike a cause from the calendar for an alleged defect in the notice, and the motion is heard by the court and denied, this will waive the irregularity. Younge v. Fisher, 4 M. & Gr. 814 ; 2 Dowl. K S. 637. But the defendant is not bound, by the English practice, to return an irregular notice, and, therefore, he will not waive the irregularity by simply retaining it. Dignam v. Iobotson, 3 Mees. & Wels. 431 ; Dignam v. Mostyn, 6 Dowl. 547. He need not return such notice, though made aware, by a notice to produce, that the plaintiff is proceeding thereon. Wood v. Harding, 3 M., Gf. &* Scott, 968. The practice in this State requires an irregular or defective notice to be immediately returned, or the irregularity will be waived. Silliman v. Clark, 2 How. 160 ; If. Y. Central Ins. Co. y. Kelsey, 13 id. 535. In relation to a waiver by appearing and objecting to a notice, it may be remarked that an appearance in pursuance of a notice of motion, which was not served for a sufficient length of time, before the hearing, is no waiver of the defect, if the objection is 32 TRIAL BY JURY. Plaintiff jpust move cause if noticed — Notice by defendant, what to contain. raised on the argument. Rogers v. McEThone, 20 How. 441 ; 12 Abb. 292. If the objection is not taken at the hearing, it cannot be raised afterward. Main v. Pope, 16 How. 271. As to waiver by receiving or acting upon papers, see Sherman v. Gregory, 42 How. 484, and cases cited ; Wait' s Code, 771 c. h. Plaintiff must move cause if noticed. If a plaintiff notices a cause for trial, he is bound to move it when reached, or the complaint may be dismissed for neglect to proceed in the action. Bishop v. Morgan, 1 Code R. N". S. 340. And if notice is served upon one of two defendants severally liable, the defend- ant so served may move for judgment of dismissal. lb. And see Lomer v. Meeker, 25 1ST. Y. (11 Smith) 361, 363, 364. i. Notice by .defendant, what to contain. In many respects the notice of trial is similar, whether served by the plaintiff or the defendant. In a notice by the plaintiff it is stated that an inquest will be taken. Such a statement would be improper in a notice served by the defendant. His notice should state that he will move for a dismissal of the complaint with costs, or for a judgment by default. If the notice does not contain such a statement, or an equiva- lent one, the court may deny him leave thus to proceed on the trial ; and besides this, without such a notice the defendant will not, be able to avail himself of any affirmative relief or judg- ment which may be claimed in the answer, and which he might have obtained upon a proper notice. There are several instances in which the defendant seeks important affirmative relief ; as in replevin, where he claims a return of property. Schroeder v. Kohleriback, 6 Abb. 66. Or, where he interposes a set-off, and claims a balance ; or, where a counter-claim entitles him to a judgment in his favor. A proper notice will secure a hearing upon these points ; while a mere special motion to dismiss the complaint, as in the case of non- suit, will not entitle him to any relief but such dismissal. Boy v. Thompson, 8 How. 253 ; 1 Duer, 636 ; Wilson v. Wheeler, 6 How. 49 ; 1 Code R. N. S. 402. j. When notice cannot be properly given. There are many in- stances where the cause is not in a condition to be brought to trial, and while in that state there cannot properly be a notice of trial served. Many of the cases have been already cited, TRIAL BY JURY. 33 The notice of trial and its requisites. in noticing the time when an action may be brought to trial. Ante, 3 to 6. Jc. The notice of trial and its requisites. The rules which apply to notices in general are equally applicable to notices of trial. See Notices*, etc. In the plaintiff's notice of trial, a clause is usually inserted to the effect that an inquest will be taken, and this clause was neces- sary under rule 29 of 1858. Such a clause seems to have been inserted in all the supreme court rules since 1808. See 3 Johns. 542 ; 1 Dunl. Pr. 589, 590 ; 1 Paine & Duer's Pr. 458, 459 ; Grah. Pr. 262, 263 (2d ed.) ; 1 Burr. Pr. 213 (2d ed). But the new rule, 36, omits the requirement that notice of taking an inquest shall be given. To insert such a clause can do no harm, although its omission would not, under the new rule, render the notice defective. This rule clearly authorizes an inquest, while it dispenses with a notice that one will be taken. There is no particular form requisite for a notice of trial, so long as it unequivocally conveys notice to the opposite party that the moving party intends to try the cause at a specified time and place. Ginger v. Pycroft, 2 B. 0. Rep. 254 ;5D.& L. 554 ; 12 Jur. 898 ; 17 L. J. Q. B. 182. The essential information required is that the party noticed shall know what -particular cause is to be tried, and when and where. Where there are two actions pending between the same parties, and only one of them is noticed for trial, the notice ought to specify which action is intended, or it will be insufficient. Lisher v. Parmelee, 1 Wend. 22 ; see, also, Towers v. Turner, 4D.&L. 177 ; Flowers v. Welch, 9 Exch. 272 ; 3 L. J. Exch. 72. In determining whether a particular notice is sufficient, the court will ascertain whether the specified defect misled the com- plaining party. A notice of trial for the third Monday, instead of the third Tuesday, where it appeared that the party noticed was not misled, was held sufficient, although the circuit was appointed for the third Tuesday. Bander v. Covill, 4 Cow. 60. So a notice for the third Tuesday, when the circuit sat on the third Monday, was held sufficient. N. Y. Central Ins. Co. v. Kelsey, 13 How. 535 ; Wolfe v. Horton, 3 Caines, 86. A notice for the fourth day of April, instead of the fourth Monday of April, is good, when the attorney upon whom it is served retains it. Silliman v. ClarTc, 2 How. Yol. III.— 5 34 TRIAL BY JURY. Forms of trial — Notice of trial — General. 160. A notice for the next term, to be held at a specified place, is good, although it specifies a wrong day, as it cannot mislead, and the wrong day will be rejected as surplusage. Jackson v. Brownson, 4 Cow. 51. So if a notice, which states the day of the month correctly, but not the day of the' week. Wolfe v. Horton, 3 Caines, 86. A mistake in spelling the name of one of the parties, as Jeunis for Tennis, is of no importance where the error cannot mislead. Quick v. Merrill, 3 Caines, 133. A party who desires to rely upon such defects ought to return the notice at once. N. T. Central Ins. Go. v. Kelsey, 13 How. 535 ; Silli- man v. Clark', 2 id. 160. In noticing causes, printed blanks are generally used, but it will be convenient to have the usual forms in connection with the text. Plaintiff" s notice of trial. {Title of cause.) To D. McM., Attorney for Defendant : Sir : Take notice that the above cause will be brought to trial, and an inquest taken therein, at the next circuit court , appointed to be held in and for the county of , in the of , on the day of ,187 .* Dated on the day of ,187 . Yours, etc., E. B., Attorney for Plaintiff. Defendant' s notice of trial. (Title of cause.) To E. B., Attorney for Plaintiff: Sir : Take notice that the above cause will be brought to trial, at the next circuit court , appointed to be held in and. for the county of , in the of , on the day of , 187 . And that a motion will then and. there be made for a dismissal of the complaint with costs, or for such other relief as may be proper. Dated the day of , 187 . D. McM.. Attorney for Defendant. Notice of trial — General. (Title of cause.) To E. B., Attorney for Sir : Take notice that this action will be brought to trial at TRIAL BY JURY. 35 Admission of service — Service of notice of trial. the next circuit court , appointed to be held in and for the county of , in the of , on the day of , 187 . Dated the day of , 187 . Yours, etc., E. B., Attorney for Admission of service. Due service of a notice, of which the (above or) within is a copy, is hereby admitted. Dated, etc. E. B., Attorney for Plaintiff's notice of trial, and of assessment of damages against a defendant who did not answer. (As in the preceding plaintiff 's notice to the *, and then add) and that the jury who try the cause will, at the same time, assess the plaintiff's damages against the defendant, C. D., in this cause. (Date.) (Signature, etc.) I. Service of notice 0/ trial. The service may be personal, or by mail ; when personal, fourteen days' notice is required. Code, § 256. When by mail, sixteen days, including the day of service. Code, § 412. When either party appears in person, the service may be made upon him. If he has an attorney, the service must be made upon him. Code, § 417. If the defendant does not demur or answer, service of notice or papers in the ordinary proceedings in an action need not be served upon him, unless he is imprisoned for want of bail, but must be served upon him or his attorney, if notice of appearance in the action has been given. Code, § 414. An injunction is not an ordinary proceeding in an action, and therefore a defendant who has ap- peared but not answered is not entitled to notice of an applica- tion therefor. Becker v. Hager, 8 How. 68. But notice must be given for an application to amend a summons. Hewitt v. Howell, 8 How. 346. The mode of service is provided for in sections 409, 410, 411, in ordinary cases. Where a plaintiff, or a defendant who has de- murred or answered, or gives notice of appearance, resides out of the State, and has no attorney in the action, the service may be made by mail, if his residence be known ; if not known, on the clerk for the party. Code, § 415. As to service on non-resident attorneys, see Laws of 1866, ch. 175, and ante, 27, 28. 36 TRIAL BY JURY. Service of notice of trial — Renewing notice of trial. For the general practice as to serving notices, etc. , see Notices. By noticing a cause for trial, the party giving the notice waives the right of subsequently moving to strike out redundant matter from his adversary' s pleading. Esmond v. Van Benscliolen, 5 How. 44. So by noticing a cause for trial, the party admits that the cause is at issue, and is estopped at the trial from denying the joinder of issue. Oneida National Bank v. Stokes, 58 Barb. 508. The act of a party in noticing the cause for trial is also a waiver of his right to amend his pleadings without leave. Phillips v. Suydam, 6 Abb. N. S. 289 ; 54 Barb. 153. Where a plaintiff notices a cause for trial, but neglects to try it, he will be liable to the defendant for the costs of the circuit. Potter v. Lewis, 18 Wend. 519 ; Poltz v. Curtis, 9 id. 497 ; 18 id. 519 n ; Townsend v. Gowen, 19 id. 639 ; Bishop v. Morgan, 1 Code R. N. S. 340 ; Milton v. Griffiths, 1 T>. N. S. 769 ; 6 Jur. 463 ; Blow v. Wyatt, 4 Mees. & Wels. 407 ;7D. P. C. 86. But if the defendant does not appear when the cause is called on, he will not be entitled to costs. Morgan v. Fernyhough, 11 Exch. 205 ; 1 Jur. N. S. 688 ; 25 L. J. Exch. 52 ; Newton v. Ohaplin, 7 C. B. 774. As the defendant may now notice the cause as well as the plaintiff, if he avails himself of this right and notices the cause, but the plaintiff does not, and the cause is reached and regularly called, the defendant ought to move it on such call ; and if he does not, while the plaintiff is present ready and willing to try the cause, the defendant ought to pay the costs of the circuit. In such a case it is his fault that the cause is not tried ; and if he calls the plaintiff to court with his witnesses, so as to be ready to try the cause, there is no good reason why the defendant should not pay costs, in the same manner that the plaintiff is required to do if he does not move a cause when he has noticed it. Besides this, there are many cases in which the entire defense is affirmative, in which case the defendant really occupies the position of plaintiff. But, upon general principles, neither party should be permitted to call the other to attend a circuit without paying costs if he does not move the cause when reached, if the other party is ready to try it. m. Renewing notice of trial. If the cause is not tried at the circuit for which it was noticed, the plaintiff cannot bring it on TRIAL BY JURY. 37 Renewing notice of trial — Countermanding notice of trial. for trial at the next circuit without giving a new notice of trial. Ante, 24, 25. In the first judicial district there need be but one notice of trial and one note of issue from either party, and the cause will then remain on the calendar until disposed of, and, when called, may be brought to trial by the party giving the notice. Code, §256. The service of a previous void notice will not affect the validity of a valid subsequent notice which is served in due time, and according to the practice of the court. Fell v. Tyne, 5 Dowl. P. C. 246 ; 2 H. & W. 299. A notice for a particular term, with a statement that if the cause is not then tried it will be continued on the calendar from term to term until it shall be reached, is insufficient, and of no effect as to subsequent circuits. BeeJcman v. Heed, 5 Cow. 23. But a cause regularly noticed, and put upon the calendar for a particular circuit, may, before the close of that term, be noticed for the next circuit, provided such notice contains a clause that it is to be operative only upon the condition that the cause is not tried at that present term. Faulkner v. Mayor, etc., of Brooklyn, 2 How. 151 ; Carpenter v. Tuffs, id. 166, 168. n. Countermanding notice of trial. If, after noticing a cause for trial, it is found by the party giving the notice that he cannot safely proceed to trial, he should promptly countermand the notice to avoid the payment of the costs of the circuit. The Code has not made any express provision in relation to countermanding a notice of trial, and therefore the old prac- tice remains in force. Code, § 469. The notice of countermand must be in writing, and served in the usual manner (Code, § 408), at least six days before the day for which the notice was given, or twelve days if the service is by mail. Code, § 412. See ante, 29, 30. Giving a notice of countermand may not relieve a party from the payment of some costs, if they have been incurred, as the opposite party is entitled to all costs actually incurred by hirn previous to the service of such countermand. 2 R. S. 618 (642), §36 ; Dauchy v. Allen, 3 How. 210. Such costs may be obtained under an order procured upon motion. Dauchy v. Allen, 3 How. 210 ; Jennings v. Holbert, 1 id. 66 ; Anonymous, 7 Hill, 168 ; Mix v. Brislan, 2 Wend. 286 ; Morse v. Lafarge, id. 241. Such costs will be obtained upon a 38 TEIAL BY JURY. Countermand of notice of trial. motion for judgment as in case of nonsuit, if granted by the court. Petit v. Hewlett, 2 How. 157 ; BromagMm v. Oorse, 1 id. 53. The former equity practice gave costs if the cause was noticed and then countermanded. Doe v. Roe, 5 Hill, 376 ; Anonymous, 2 P.Wms. 68. The payment of costs may be enforced by a precept in the nature of an execution. Laws 1847, ch. 390, § 3 ; Gamble v. Taylor, 43 How. 375, 377 ; Slocum v. Watlcins, 1 Demo, 631 ; Lucas v. Johnson, 6 How. 121 ; 1 Code E. 1ST. S. 301 ; Wetzel v. Schultz, 13 How. 191 ; 3 Abb. 468. If not collected by precept the costs may be included in the general bill taxed in the action. Gamble v. Taylor, 43 How. 375, 377 ; BulTteley v. Keteltas, 2 Sandf. 735 ; Mix v. Brisban, 2 Wend. 286. When a notice of trial has been duly countermanded, it is from that time the same as though no notice had been given. Doe d. PugTiY. Price, 1 B. C. Rep. 311 ; 11 Jur. 311. An undertaking by the defendant to accept short notice of trial does not entitle the plaintiff to give less than the usual notice of countermand. King v. Jones, 1 C. & M. 71 ; 1 D. P. C. 640. And where a plaintiff avails himself of the terms of short notice of trial he has no power of countermand ; and, therefore, if he does not proceed to trial he must pay costs up to the time of the counter- mand. Doncaster v. Cardwell, 2 Mees. & Wels. 390 ; 5 D. P. C. 582. Rule 22 of 1830, which required six days' notice of counter- mand, is not found in the present rules ; but the practice was well established while the rule was in force. What effect the omission of that rule will have has not been decided by the courts. In the foregoing remarks it has been assumed that a defendant who notices a cause and then countermands it, is liable for the costs of the circuit in the same manner that a plain- tiff would be under similar circumstances. See ante, 36. Countermand of notice of trial. (Title of cause.) Sir : You will take notice that I hereby countermand the notice of trial heretofore given by me to you for the trial of this cause at the circuit, which notice was dated , E. B., Plaintiff's Attorney. To D. McM., Defendants Attorney. TRIAL BY JURY. 39 Proof of service of notice of tria^ — Note of issue. o. Proof of service of notice of trial. It may be important to prove the service of the notice of trial, as in cases where the oppo- site party does not appear at the trial, or where he disputes such service. It is the usual practice to obtain an admission of the service, which admission is rarely refused. The form of the ad- mission has been given, ante, 35. If no admission is obtained it will be proper to prepare an affidavit showing the time and manner of service, and have it sworn to by the person making . the service. This ought to be done at once, so that the proof may be ready when required. Section 4. Putting the cause upon the calendar. a. In general. Whenever either party has duly noticed the cause for trial, his next step will be to put the cause on the cal- endar, so that the court may take cognizance of the action. It is evident that the Code requires every cause to be put upon the calendar before it can be properly brought to trial. And the statute is express, that the clerk shall put the cause upon the calendar, when a note of issue has been duly filed with him. Code, § 256. If a cause is not upon the calendar, it cannot be moved on for trial. Culver v. Felt, 4 Rob. 681 ; 30 How. 442. Nor can a defendant take a dismissal of the complaint founded upon a notice of trial, if the cause has not been regularly placed upon the calendar. Browning v. Paige, 7 How. 487. o. Note of issue. A note of issue ought to contain the title of the action, the names of the attorneys, and the time when the last pleading was served. Code, § 256. This note ought to be furnished to the clerk at least eight days before the court. If the note is sent by mail, this ought to be done in season to reach the clerk in due time, and the postage should be duly paid. If the note of issue is not furnished in due season, and the cause is not upon the calendar, the court may refuse to allow it to be put there, even upon a strong affidavit in excuse. Wilkin v. Pearce, 4 How. 26. See Rule 48, as to general term calendar. A note of issue ought to show upon its face whether it was filed by the plaintiff or by the defendant. And it ought to state the nature of the issue, and for what term of the court, whether for the general or the special term, or for the circuit. It ought also to state whether the issue is one of law or one of fact, and, if it is an issue of fact, whether it is to' be tried by the court or by a jury. v . 40 TKIAL BY JUEY. Note of issue for a jury trial — The calendar. If both, parties desire to try • the cause, it is best for both to notice it and to file notes of issue, so that either may move the cause when reached. Ante, 26. Issues of fact to be tried by a jury must be placed upon the calendar of the circuit court. Code, § 255. If the cause is entitled to a preference upon the calendar, the note of issue ought to state that fact. Note of issue for a jury trial. SUPREME COURT. a.b. " ) e. B., Plaintiff's Attorney. agst. V c.u. ID. McM., Defendant' s Attorney. Plaintiff's note of issue. Issue of fact to be tried by a jury. Issue joined January 22, 1873. c. The calendar. It is the duty of the clerk to make up the calendar from the notes of issue duly filed with him. This cal- endar he procures to be printed, and copies are then furnished to the court, and to the members of the bar who may desire them. The expense of printing is a county charge. Laws 1862, ch. 86. If the note of issue is not served in time, the cause is usually put at the foot of the calendar, but it is not considered as regu- larly there for any purpose, especially when the opposite party is not present and does not consent. See Browning v. Paige, 7 How. 487, 489. The parties may, however, by consent, enter the cause upon the foot of the calendar at any time during the term, with the assent of the court. In arranging the causes upon the calendar, if there are several issues of the same date, the clerk will give priority according to the time when the notes of issue were filed. The date of the issue is fixed by the time when the last pleading was served in the action. Code, § 256. The causes are generally called in their order, as they have been arranged by the clerk on the calendar. The court, however, has a large discretion in this respect. MaretzeTc v. Cauldwell, 4 Bob. 666. And it may be said that the entire control of the calendar is under the direction of the court. Id. See ante, 7 to 9. • TKIAL BY JURY. 41 Preferred causes — Correcting calendar — Short calendars. d. Preferred causes. This subject has been sufficiently noticed. Ante, 7 to 9. e. Correcting the calendar. If the clerk has not properly put the cause upon the calendar, as where it is not put in its proper order thereon, or where he has entirely omitted it therefrom, the party interested should attend the court and apply to have the error corrected. The proper time to make such a motion is at the opening of the court, and before the calling of the calendar is commenced. Such motions have a preference over all other motions. If the motion is not made on the first day of the circuit, which is usually on Monday, the court will not hear or grant the motion on the following Thursday, or other later day. Anonymous, 28 How. 394. The proper place to apply for a correction of the calendar is at the circuit or trial term, as the special term will not fix the date as to which a cause is to be put upon the circuit calendar. North v. Sargeant, 14 Abb. 224, 226. The correction of the circuit calendar belongs exclusively to the judge holding the circuit. Allen v. Calhoun, 6 Cow. 32. f. Rule as to calendars in New York city. In the first judi- cial district there need be but one notice of trial, and one note of issue from either party, and the cause will then remain on the calendar until disposed of, and, when called, may be brought to trial by the party giving the notice. Code, § 256. As to call- ing and passing causes in the city of New York, see Laws 1849, ch. 439, §§ 16, 17 ; 2 Till. & S. Pr. 439 ; 2 Whit. Pr. 331-333. Section 5. Short calendars. ' a. Supreme court, New York city. Short causes, in which there is no substantial defense, are sometimes placed on a special calendar. In New York city the following rule is in force in the supreme court : At any circuit of this court, any causes belong- ing to either of the # two following classes may be placed on a special circuit calendar, unless the trial is likely to occupy more than one hour : 1. Where the action is on contract, and the answer merely denies the allegations in the complaint, without setting up new matter. 2. Where the action is on contract, and new matter is set up in the answer, and there is reason to believe that the defense is made only for the purpose of delay. Vol. Ill — e 42 TRIAL BY JURY. Special calendars — New York supsrior court. To entitle the cause to be placed on such calendar, the plain- tiff' s attorney must give notice four days before any Monday in the circuit that he will move, on such Monday, to have the cause placed on such calendar ; and the motion will be heard on such Monday, and, if granted, the cause may be heard on the follow- ing Friday. If the notice is founded on the belief that the de- fense is for delay, affidavits must be served at the time of serving the notice. The plaintiff's attorney must also deliver to the clerk of the circuit a like notice, four days before such Friday, containing also the number of the cause on the general calendar. The same motion may be made on any day, before the judge at chambers, on a notice of four days. If the cause actually occupies more than one hour on the trial, the trial may be suspended, at the discretion of the court, and the same put down at the foot of the calendar. o. New York superior court. In the New York superior court, by rule 23, adopted March 1, 1870, it is thus provided : In actions on contract, where there is reason to believe that the defense is interposed for the purpose of delay, and the trial will not occupy more than one hour, the plaintiff may apply by mo- tion at special term, on a notice of four days, to have the issue placed upon a special calendar for trial (serving with such notice any affidavits or papers he may wish to use on the motion, which have not been already served), and the same may be so ordered, in the discretion of the justice before whom the motion shall be made. If such motion be granted, the cause will be entered on the special calendar, to be made by the clerk, on receiving a note of the issue, specifying the number of the cause on the general cal- endar, and the date of order directing it to be placed on such special calendar ; such note of issue to be filed with the clerk four days before the day on which the cause shall be so entered. The special calendar shall be called on the second and last Fri- day of each jury term, in part first, by the justice then presid- ing, and the causes may be tried in either part, as may be directed by such justice. If the trial of the cause shall occupy more than one hour, the trial may be suspended, at the discretion of the court, and the cause be placed at the foot of the general calendar. TRIAL BY JURY. 43 New York common pleaa — Supreme court, second j udicial district. c. New Yorlt common pleas. In the New York common pleas, by rule 16 of 1870, it is provided : In any action on contract, where there is reason to believe that the defense is interposed for delay, or that the trial will not occupy more than one hour, either party may, upon a notice of four days, apply at chambers to have the cause placed upon the special calendar for short causes, and which will be made up for the third Friday in each trial term. If the motion be granted, the order shall forthwith be delivered to the clerk, with a notice of the number of the cause on the general calendar. If the trial be not concluded in one hour, it will be suspended, and the cause will thereupon be put at the foot of the general calendar, imless the presiding judge shall otherwise order. d. Supreme court, second judicial district. The second judi- cial district, by a rule adopted October 24, 1856, provided as follows : At each circuit to be held after the first day of January, A. D. 1857, in the county of Kings, and also in any other county in the district where the circuit calendar shall contain more than one hundred causes, upon the order of the justice holding such circuit, a special circuit calendar shall be made up of causes be- longing to either of the two following classes, unless the trial is likely to occupy more than one hour : 1. Where the action is on contract, and the answer merely denies an allegation in the complaint, without setting up any new matter. 2. Where the action is on contract, and new matter is set up in the answer, and there shall be reason to believe that the defense is made merely for the purpose of delay. Either party intending to make application 'to place any cause on such calendar shall give notice thereof to the opposite party, at the time of noticing the cause for trial, and, if the application shall be- founded on the belief that the defense is for delay, affi- davits disclosing the ground therefor must be served at least seven days before the circuit. On the first day of the circuit, after the juries shall have been impaneled and after hearing motions to correct the calendar, the calendar will be called through, and motions to place causes upon the special circuit, calendar will be heard as the causes are called. The causes ordered to be placed on such special calendars will 44 TRIAL BY JURY. Affidavit of merits — When necessary. be arranged by the clerk on such a calendar in the order of their dates of issue ; and such calendar will be taken up on Monday of the second week of the circuit, and proceeded with till all the causes thereon shall be tried, unless the court, for cause, shall alter the course of business. If any cause placed on such special calendar shall actually occupy more than one hour on the trial, the court, in its dis- cretion, may suspend the trial, and either restore the cause to its place on the general calendar, or order it to be put at the foot of the calendar. Section 6. Affidavit of merits. a. In general. If the defendant would prevent the plaintiff from taking an inquest, he ought to file and serve an affidavit of merits, in due form, and in proper season. The Code doe's not dispense with the necessity of an affidavit of merits, if it is desired to prevent the taking of an inquest. Anderson v. Sough, 1 Sandf. 721 ; 1 Code R. 50 ; 6 N. Y. Leg. Obs. 365 ; Sheldon v. Martin, 1 Code R. 81 ; DicMnson v. Kimball, id. 83. A verified answer will not supply the place of an affidavit of merits. lb. Jones v. Russell, 3 How. 324 ; 1 Code R. 113. On overruling a demurrer to a complaint as frivolous, leave to answer will not be given without an affidavit of merits. Appleby v. EVkins, 2 Sandf. 673 ; 2 Code R. 80. See Harlow v. Hamilton, 6 How. 475, 479. In common-law actions, inquests have been allowed for more than half a century. See Rule of 1808 ; 3 Johns. 542 ; 1 Dunlap's Pr. 581, 582 ; 1 Paine & Duer's Pr. 459, 461 ; 1 Graham's Pr. (2d ed.) 292 ; 1 Burr. Pr. (2d ed.) 214. See ante, 33. b. WJten necessary. In actions of an equitable nature, which are not to be tried by a jury, no affidavit of merits is required, as there cannot be an inquest in such a case. But in all common-law actions in which an inquest could formerly have been taken, they may be taken now, provided a sufficient affidavit of merits is not duly made, filed and served. Sup. Ct. Rule 36 ; Anderson v. Hough, 1 Sandf. 721 ; 1 Code R. 50 ; 6 IS". Y. Leg. Obs. 365 ; Jones v. Russell, 3 How. 324 ; 1 Code R. 113. It is to be remembered that the present rule does not require, as the former rule did, that the notice of trial should inform the defendant that an inquest will be taken ; although it declares that an inquest may be taken. The result of the change in the TRIAL BY JURY. 45 Affidavit of merits, when not necessary — When to be made. rule is to leave the plaintiff at liberty to take an inquest in a proper action, if no sufficient affidavit of merits is filed and served. And it would seem that the defendant must take notice, at his peril, whether such an affidavit is required. See ante, 4,4:. c. When not necessary. Inquests are now allowed in those cases in which they were heretofore allowed. Sup. Ct. Rule 36. In the preceding letter b, we saw that it was only in common- law actions that inquests could formerly be taken ; and that they were not allowed in equity actions. When the complaint has neither been filed nor served, and the defendant has not had any opportunity to examine the nature of the cause of action, he will not be required to produce any affidavit of merits on any motion relating to the complaint. Engs v. Overing, 2 Code R. 79. In an action upon an account, where the only defense is a set- off, to which there is no reply interposed, an affidavit of merits is not necessary, as the plaintiff cannot take judgment without allowing the set-off, even though the defendant does not appear at the trial. Potter v. Smith, 9 How. 262. See Clinton v. Eddy, 1 Lans. 61, 62. The plaintiff is not required to make an affidavit of merits, even in an action of replevin, for the purpose of preventing the defendant from moving the cause out of its order on the calendar and taking an inquest. Began v. Priest, 3 Denio, 163. The defendant may bring the cause to trial, but he cannot do so out of its regular order on the calendar. lb. • d. When to be made. An affidavit of merits ought to be filed and served on or before the first day of the circuit at which the cause is noticed for trial. If this is not done in those actions in which it is necessary to do so, the plaintiff may take an inquest on the second or any subsequent day of the circuit. Sup. Ct. Rule 36. The prudent practice will be to file and serve an affidavit of merits as soon as the cause is at issue. Until the complaint is filed or served, the defendant will not know the nature of the action stated therein, and he cannot in- telligently make an affidavit of merits. Engs v. Overing, 2 Code R. 79. If made before such filing or service, it will be insuffi- cient to prevent the taking of an inquest. Geib v. Icard, 11 Johns. 82. A verified answer which is sworn to and served before the complaint is drawn up or served will be regarded as a fraud upon the rules and practice of the court, and therefore insuffi- 46 TRIAL BY JUEY. Affidavit of merits, by Whom to be made. cient. Phillips v. PrescoM, 9 How. 430, 433. And for the same reason an affidavit of merits would be defective, where the defend- ant does not know the contents of the complaint. e. By whom to be made. As a general rule the defendant is the person who is best acquainted with the facts relating to the defense ; and, therefore, the affidavit of merits ought to be made by him. The affidavit of another person will not be sufficient, unless some satisfactory reason is given why it is made by him and why it was not made by the defendant. And so when the defendant's attorney makes this affidavit, it ought to show on its face a reasonable excuse for omitting the defendant' s affida- vit. Roosevelt v. Bale, 2 Cow. 581, 583 ; Johnson v. Lynch, 15 How. 199, 201 ; Mason v. Bidleman, 1 id. 62. But where a good excuse is offered for the absence of the defendant' s affidavit, as where he is beyond the sea, absent from the State, or so sick as to be unable to make it, the affidavit of the defendant' s attorney will be sufficient, if it shows these facts on its face. Johnson v. Lynch, 15 How. 199, 201 ; Philips v. Blagge, 3 Johns. 141 ; Geib v. Icard, 11 id. 82. So the affidavit may be made by one who acts as the attorney in fact of the defendant, although he is not the attorney on record, nor even an attorney at law. Mason v. Bidleman, 1 How. 62 ; Johnson v. Lynch, 15 id. 199, 201. It is no objection to such affidavit that it states that the knowl- edge of the defense was derived from the defendant, as this is generally all the information which the defendant's attorney can have. Johnson v. Lynch, 15 How. 199, 201, 202 ; Philips v. Blagge, 3 Johns. 141. An affidavit of merits must appear to have been made by the defendant himself, or by his attorney or agent. Morris v. Hunt, 1 Chit. 97 ; Rowbotham v. Dupree, 5 D. P. C. 557. It may be made by the managing clerk of the defendant's attorney, who may know more of the cause than the attorney himself. Anony- mous, 1 Smith, 61 ; Neesom v. WhytocJc, 3 Taunt. 403. In such case the affidavit must show that such clerk had the manage- ment of the particular case. Doe d. Fish v. McDonnell, 8 D. P. C. 501 ; 4 Jur. 578. If the affidavit could have been made by the defendant at any time before the circuit, the affidavit of his attorney will be insuffi- cient to prevent a regular inquest. Johnson v. Lynch, 15 How. 191, 201, 202 ; Philips v. Blagge, 3 Johns. 141. TRIAL BY JURY. 47 Affidavit of merits, its requisites, its form. Such affidavit may be made by one who is the real party in interest, though not named as defendant in the record. Miller v. Hooker, 2 How. 124 ; Roosevelt v. Bale, 2 Cow. 581, 583, 584. Where there are several defendants, and all their defenses are identical, an affidavit of merits made by any one of them will be sufficient for all, if he is acquainted with the facts. Ontario Bank v. Baxter, 6 Cow. 395. But where one of two defendants make's the affidavit alone, it ought to show that the defense of both is identical, or it will be insufficient. Clark v. Parker, 19 Wend. 125. Where the maker and the indorser of a note are sued in an action, the affidavit of the maker will not prevent an inquest against the indorser, unless it shows that both defenses are identical. lb. f. The affidavit, its requisites, its form. The affidavit ought to state positively, and without qualification, that the defendant has a defense upon the merits. This must be stated upon the advice of counsel, although that may be omitted where the de- fendant is himself a counselor at law. Cromwell v. Van Rens- selaer, 3 Cow. 346. It ought to state that the defendant has fully and fairly stated the case to his counsel, and should give the name and residence of such counsel. Rule 29. Equivalent words will not answer, and a statement that the defendant has made "a full and fair statement of all the facts of the case, as far as they had come to his knowledge, and believed' them to exist," will be defective Brown v. St. John, 19 Wend. 617. If the affidavit omits to state that the defendant has fully and fairly stated the case to his counsel, it will be insufficient. Gary v. Livermore, 2 How. 170. An affidavit is defective when it merely alleges that the defendant has stated "his case in this cause" to his counsel. Ellis v. Jones, 6 How. 296. So of a statement that the defendant has "fully and fairly stated his defense." Richmond v. Cowles, 2 Hill, 359. So of a statement that the party "has fully and fairly stated the facts of his case." Mtzhugh v. Truax, 1 Hill, 644. Yet, an affidavit was sustained where it alleged that the defendant had fully and fairly stated "the facts of this case." Jordan v. Garrison, 6 How. 6 ; 1 Code R. K S. 400. Or a statement that the defendant has fully and fairly stated "this case, or his case" to his counsel, is good. Brownell v. Marsh, 22 Wend. 636 ; Brown v. Masten, 2 How. 195. But it is not enough to say that he has stated " his defense " 48 TRIAL BY JURY. Affidavit of merits) its requisites, its form. to his counsel. lb. ; Tompkins v. Acer, 10 How. 309, 310 ; Rich- ards v. Swetzer, 3 id. 413, 414 ; 1 Code R. 117. See, also, McMur- ray v. Oifford, 5 How. 14, 16. The affidavit must state that the defendant has been advised by his counsel that he has a good and substantial defense upon the merits. Swartwout v. Hoage, 16 Johns. 3 ; Johnson v. Rogers, 3 Cow. 14 ; Anonymous, 3 Wend. 425 ; Cannon v. Titus, 5 Johns. 855 ; Bruen v. Adams, 3 Caines, 97. This statement of advice by counsel is indispensable. lb. The affidavit must state the defendant's belief, that he has a good and substantial defense. Lynch v. Masher, 4 How. 86 ; 2 Code R. 54 ; Brittan v. Peabody, 4 Hill, 61 ; Wharton v. Barry, 1 How. 62. Saying that the de- fendant has a full and substantial defense, is not equivalent to a good and substantial defense, and is therefore defective. Bank of Utica v. Root, 4 Hill, 535. See Kennedy v. Hutchinson, 4 Jur. 106, Exch. The affidavit must show that the defense is "on the merits." ' Tompkins v. Acer, 10 How. 309, 310 ; Meech v. Calkins, 4 Hill, 534 ; Bower v. Kemp, 1 Cr. & J. 287 ; 1 Tyrw. 260 ; Pringle v. Mar sack, 1 Dowl. & Ryl. 155 ; Page v. South, 7D.P.C. 412. See Lane v. Isaacs, 3 D. P. C. 652. It must show that the de- fense is to the particular " action." Tate v. Bodfleld, 3 D. P. C. 218. Stating a defense to "the plaintiff ' s demand on the promis- sory note on which the suit is brought," is insufficient. Mason v. Moore, 2 How. 70 ; Bur ant v. Cook, lid. 45. So of a defense "to the plaintiff's declaration filed in this suit." Howe v. Has- orouck, 1 How. 68. The affidavit need not allege in express terms that the advice of counsel was given after the statement of the case, especially where the affidavit imports that the advice was given after such statement. Brown v. Seys, 2 How. 276, overruling Lansing v. Mickles, 1 id. 248. The affidavit ought to be entitled in the action in which it is used. Baxter v. Seaman, 1 How. 51. The Code, section 406, provides, however, that it is not necessary to entitle an affidavit in the action, and that if there is no title, or it be defective, it shall be as valid and effectual as though duly entitled, if it intelligibly refer to the action or proceeding in which it is made. But, under this rule, an affidavit which is to be used in the court of appeals will not be sufficient, if entitled in the supreme court. Clickman v. Clickman, 1 K. Y. (1 Comst.) 611 ; 3 How. TEIAL BY JURY. 49 ^ Affidavit of merits made by defendant — Affidavit of merits made by counsel. 365 ; 1 Code R. 98. The superior court of New York city will allow an affidavit entitled in the supreme court to be read, if it appears that there is but one suit between the parties. Bowman v. Sheldon, 5 Sandf. 657 ; 10 N. Y. Leg. Obs. 339. The venue is an essential part of the affidavit, and, if omitted, the affidavit will be a nullity, though sworn to before the officer who is named in the jurat. OooTc v. Staats, 18 Barb. 407. Where the affidavit is made by an illiterate person, the jurat ought to state that the affidavit was read over to him, and that he seemed to understand it. Haynes v. Pdwell, 3 D. P. C. 599. The safe practice is to follow the established form when draw- ing an affidavit of merits, as that contains all that the most tech- nical practice can require, and it also obviates any questions arising from novel modes of expression. Affidavit of merits made by defendant. SUPREME COURT. A. B. ~ ) agst. V C. D. \ , county of , ss : C. D., being duly sworn,* says that he is the defendant in the above-entitled action ; that he has fully and fairly stated the cJ case in said action to D. McM., his counsel in this action, who resides at (specifying his residence), and that he has a good and substantial defense on the merits to the action, as he is > advised by his said counsel, after such statement made as afore- said, and verily believes. C. D. Subscribed and sworn to before me, ) this day of , 187 . j * (Signature of officer.) Affidavit of merits made by counsel. (Same as in last form to *) says that he is the attorney and i counsel of the above-named defendant, C. D., in this action, and that from a statement of the case made in this action, made to deponent by defendant, deponent verily believes that defendant * has a good and substantial defense upon the merits to the cause l> of action set forth in the complaint, or to some part thereof. j (State the reason why the defendant did not malce the affidavit.) (Jurat.) (Signature.) |; Upon the back of this affidavit of merits indorse the title of the 6 cause, the name of the paper, and the name and residence of the * Vol. III.— 7 50 TEIAL BY JURY. Affidavit of merits made by counsel — Filing and serving. defendant' s attorney ; and, besides this, indorse upon the copy of the affidavit served upon the plaintiff's attorney a notice like the following : Sir : Take notice that the within is a copy of an affidavit of merits, which has been filed in the office of the clerk of county, in the above-entitled action. Yours, etc., D. McM., To E. B., Esq., Defendant 's Attorney. Plaintiff'' s Attorney. ' It has been held that an affidavit of merits made and used for any other purpose will not be sufficient to prevent an inquest, or to use upon a motion. Cutler v. Biggs, 2 Hill, 409. See Cole- gate v. Marsh, 2 How. 137 ; PopTiam v. Baker, 1 id. 166 ; Rob- inson v. Sinclair, id. 106 ; ATberti v. Peck, id. 230. By the new rules this practice is changed, and rule 29 pro- vides that " when an affidavit of merits has once been filed and served, no other shall be necessary on making a motion, and the service and filing may be shown by affidavit." When a sufficient affidavit of merits has been once duly filed and served, this will be sufficient during the pendency of the action, and for all subsequent circuits. Prescott v. Roberts, 6 Cow. 45, 46 ; Van Rensselaer v. Hamilton, 4 id. 539. See Col- ver v. Van Valen, 6 How. 102, 105. Changing the place of trial to another county will not affect the validity of the affidavit of merits once properly filed and served. ' Prescott v. Roberts, 6 Cow. 45, 46. The affidavit need not be special as under the old chancery practice. Though it has been held that the court may require this if suspicious circumstances demand it. Dix v. Palmer, 5 How. 233, 236 ; Van Home v. Montgomery, id. 238, 240. g. Filing and service. In all actions in which there can be a reasonable claim that an affidavit of merits is necessary, it is best to file and serve it. And it is safer to file and serve it when not necessary than to omit such filing and service ; for, if unneces- sary, the act can do no harm, while, if necessary, the act is of importance. The original affidavit ought to be filed with the clerk of the cir- cuit where the cause is to be tried ; and this ought to be done as early as the first day of the circuit, at the very latest ; and it ought to be done at the earliest convenient time after the cause is at issue. Ante, 45. TRIAL BY JURY. 51 Controverting the truth of the affidavit — Amendment of affidavit. A copy of this affidavit, with a notice of the filing of the orig- inal, ought to be indorsed thereon, and ought then to be served on the plaintiff's attorney before an inquest is taken. Rule 29. Although the original affidavit is regularly filed, if a copy is not served on the plaintiff's attorney in due time, an inquest will be regular. Baker v. Ashley, 15 Johns. 536 ; Gannon v. Titus, 5 id. 355. Where an affidavit of merits is served at the circuit, and the plaintiff's attorney is not present, it may be served on the plain- tiff' s counsel having the cause in charge. Brainard v. Hanford, 6 Hill, 368. But where a defendant delays, until the second day of the cir- cuit, to file and serve an affidavit of merits, in order to prevent an inquest, he is bound, at his peril, to serve it in such a way as, in all reasonable probability, to bring the service to the knowl- edge of the attorney or counsel having charge of the cause at the circuit, before the inquest is taken. Smith v. Aylesworth, 24 How. 33, 37. See, also, Anonymous, 6 Abb. 512. A service on a clerk in the office, in the absence of the plain- tiff's attorney, is equivalent to a service on the attorney, and is sufficient, especially where the clerk has ample time to notify the attorney before the inquest. lb. But, see Ramsey v. Erie Rail- way Co., 57 Barb. 450; 3 Lans. 181 ; Brainard v. Hanford, 6 Hill, 368. h. Controverting the truth of the affidavit. An affidavit of merits cannot be contradicted for the purpose of sustaining an inquest and to prevent the opening of the default. Hanford v. McNair, 2 Wend. 286 ; Philips v. Blagge, 3 Johns. 141 ; Blewitt v. Gordon, 1 D. N. S. 815 ; 6 Jur. 825 ; Heane v. Batter soy, 3 D. P. C. 213. And, -see Quinn v. Case, 2 Hilt. 467, 471 ; 9 Abb. 160, 162. But an affidavit has been received to contradict the sufficiency of the excuse for not serving the notice for the first day of the term. Quin v. Riley, 3 Johns. 249. So an affidavit has been allowed for the purpose of contradict- ing the alleged excuse why the defendant did not make the affi- davit of merits. Johnson v. Lynch, 15 How. 199, 202. i. Amendment of affidavit. Where there is some technical defect in an affidavit of merits, but where there is also a good defense, the court will usually give an opportunity for supply- ing such defect. And, generally, the motion is denied without 52 TRIAL BY JURY. Calling calendar ; reserving causes. prejudice to a renewal, or, it is allowed to stand over until a proper affidavit can be filed and served. Brown v. Tousey, 19 Wend. 617, 619 ; Ellis v. Jones, 6 How. 296, 298 ; Tompkins v. Acer, 10 id. 309, 310 ; Gary v. Livermore, 2 id. 170. The court may, when the circumstances are suspicious, and there has been great delay, refuse an opportunity of renewing the motion or of amending the affidavit. Richards v. Swetzer, 3 How. 413, 414 ; 1 Code R. 117 ; Johnson v. Lynch, 15 How. 199, 203. Section 7. Calling calendar ; reserving causes. a. In general. The calling of the calendar is not usually the first thing done at the circuit. At the opening of the court, and after the proclamation of the crier, the judge generally directs the clerk to call over the list of petit and of grand jurors. If any are absent without excuse they are fined, and if they offer a sufficient excuse they are discharged for the day or for the term. Motions to correct the calendar, or to postpone causes, or to refer them, are then heard. And then motions generally which are proper to be heard at circuit are frequently heard, especially if it is important that they be heard at that time. After calling and swearing such petit jurors as appear, and after impaneling, swearing and charging the grand jury, the calendar is taken up. Before the regular call of the calendar all corrections ought to be made, or at the latest when the cause is called on the prelimi- nary call. Generally the judge calls each cause on the calendar in the order in which they stand, for the purpose of ascertaining what causes are ready for trial, and also for the purpose of referring such causes as are properly referable, or are such as the parties desire to refer. Causes in which neither party is ready are dis- posed of by putting over the term, or setting down for some day during the term. In some districts a day calendar is prepared, on which a limited number of causes is placed for trial on the day specified. These causes are taken from the general calendar, and in the order in which they stand on that calendar. On this preliminary call of the calendar, which is merely intended to ascertain what causes are ready, and for the prompt disposition of such causes as the parties desire by way of refer- ence or postponement, it is not usual to default either party TRIAL BY JURY. 53 Reserving causes — Inquests. But, when the regular call of causes is commenced, either party may take the default of the other if he does not appear and answer to such call. If neither party answers, the cause is passed and goes to the foot of the calendar unless the judge otherwise directs. And, if the cause is passed, the judge may re-instate it upon a sufficient excuse being shown. See ante, 40. The time at which the court opens is that of the place in which the court sits. Curtis v. March, 3 Hurlst. & Norm. 866. Counsel have a right to rely upon the presumption that causes will be called and heard in their regular order on the calendar ; and they may act upon that belief in calculating how long a time they have for preparation before the cause is called. Bel- mont v. Erie Railway Co., 52 Barb. 637, 657. And, though the court has power to call up causes out of their order upon the calendar, yet if this is done so as to operate as surprise upon one of the parties, relief will be granted. lb. o. Reserving causes. In the superior court of New York city, by rule 14, and in the common pleas of the same city, by rule 12, provision is made for reserving causes. In the supreme court, if either party, or if both parties desire to have a cause reserved for a particular day of the circuit for trial, such request is usually granted, if no valid reason is opposed to it. The practice as to reserving causes is so much in the discretion of the circuit judge that few general rules can be laid down upon that subject. Section 8. Inquests. a. In general. An inquest is the finding of a jury in a civil action, in a case where the defendant does not appear at the trial. In this ease the cause is taken up out of its regular order on the calendar, on the application of the plaintiff, and an ex parte trial is had, which excludes any affirmative matter of de- fense, unless it should be something admitted by the pleadings, as a set-off not denied. Ante, 45. The practice of taking inquests has long prevailed in this State. Rule of 1808 ; 3 Johns. 542 ; 1 Dunl. Pr. 589, 590 ; 1 Paine & Duer's Pr. 458, 459 ; Grah. Pr. (2d ed.) 262, 263 ; 1 Burr. Pr. (2d ed.) 213. There is nothing in the Code which abrogates or materially changes the former practice in taking inquests. Anderson v. Hough, 1 Sandf. 721 ; 1 Code R. 50; 6 N. Y. Leg. 54 TRIAL BY JURY. Inquests — In what cases allowed. Obs. 365 ; Haines v. Dams, 6 How. 118 ; 1 Code R. N. S. 407. And, by the 36th rule of the supreme court the right and the power to take inquests is expressly declared ; and they may be taken in any case in which they might heretofore have been taken. . The plaintiff may waive a jury and take an inquest before the court, by calling up the cause out of its order, if the defend- ant does not appear at the trial. Haines v. Davis, 6 How. 118, 119 ; 1 Code R. K S. 407. See, also, Goodyear v. Baird, 11 . How. 377. Whether such a trial is technically an "inquest," is of no importance, since the trial is regular. lb. The plaintiff may call a jury if he prefers to do so, or may try it before the court alone ; but in that case it ought to be done before the jury have been discharged for the circuit. Ante, 11, "Waiver of jury. o. In what cases allowed. Inquests may be taken in actions, out of their order on the calendar, in cases in which they were heretofore allowed, at the opening of the court. Rule 36. This will allow an inquest in a common-law action. Ante, 44. But inquests were, as a general rule, unknown in equity suits, and there cannot be such a thing as an inquest in an equity action under the present practice, unless in the case of an issue in the nature of a feigned issue. Ante, 44, 45. One exception existed formerly in equity suits, and where a feigned issue was awarded to be tried in a court of law, an in- quest might be taken as in actions at law ; and if irregularly taken, the court of law would set it aside. Den v. Fen, 1 Caines, 487. See Doe v. Roe, 1 Johns. Cas. 402, 405, note a; Snell v. LoucJcs, 12 Barb. 385. For irregular practice, the courts of law would set aside an inquest in such feigned issues, though relief on the merits was sought in the court of equity framing the issue. lb. By rule 12 of the New York superior court, and rule 11 of the New York common pleas, in cases placed on the day calendar, which is called through every morning at the opening of the court, the plaintiff may take an inquest if the defendant fails to appear. Where the omission to file and serve an affidavit of merits is accidental, or where other sufficient reasons are shown why it was not filed and served, the court may, on such terms as are TRIAL BY JURY. 55 Inquests, by whom taken — Against whom taken. just, order that the taking of an inquest shall be delayed to enable the defendant to file and serve such affidavit. c. By whom taken. Rule 36 allows inquests in the cases in which they were heretofore allowed ; and, under the former prac- tice, no one but the plaintiff could take an inquest. The fact that the defendant could bring a replevin cause to trial did not enable him to move the cause out of its order on the calendar and take an inquest. Began v. Priest, 3 Denio, 163. And, under the present practice, no new authority is conferred as to inquests, so that a defendant cannot now move a cause out of its order on the calendar and take an inquest against a plaintiff. If the defendant has regularly noticed the cause, filed a note of issue, and had the cause put upon the calendar, he may take a dismissal of the complaint, on a regular call of the calendar, if the plaintiff does not appear. d. Against whom taken. Where issue has been joined by all the defendants, a notice of trial and inquest must be served on all the defendants before an inquest can be regularly taken. Livingston v. Mclntyre, 2 How. 41. In an action upon an alleged joint contract, where one defend- ant fails to answer and the others interpose a general denial, the plaintiff ought to bring the cause to trial as to all of the defend- ants, and have but one assessment of damages and but one judg- ment against all of the defendants. Sluyter v. Smith, 2 Bosw. 673 ; Qatlin v. Latson, 4 Abb. 248 ; 13 How. 511 ; Van Schaick v. Trotter, 6 Cow. 599 ; Bacon v. Oomstock, 11 How. 197 ; War- ner v. Ford, 17 id. 54, 55. It is neither necessary nor proper to enter up a judgment against the defaulting defendant until the other issues are dis- posed of by the court. lb. ■ In actions where a several judgment may be proper under section 136 of the Code, an inquest may be taken against one defendant, if all have been duly noticed for trial. Clark v. Parker, 19 Wend. 125. Where issue is joined by some of the defendants, and the others fail to answer, an inquest may be taken as to those answer- ing. Bank of Rochester v. Boulton, 5 Wend. 106. See, also, Qatlin v. Latson, 4 Abb. 248 ; 13 How. 511 ; Sluyter v. Smith, 2 Bosw. 673. In an action against two defendants, upon a joint and several contract as joint, it cannot be treated as a several ac ( tion unless 56 TRIAL BY JURY, " Notice of taking inquest — Inquest, when to be taken. one of the defendants is struck out as a party to the record, or he has a defense personal to himself. Brown v. Richardson, 4 Rob. 603. e. Notice of taking inquest. The former rules of the court have always required that the plaintiff's notice of trial should contain a notice that he would take an inquest, if such was his intention. Ante, 33. But rule 36 dispenses with that require- ment, and yet allows inquests to be taken in the cases in which they might heretofore have been taken. See ante, 33. /. Inquest, when to be taken. It has long been the settled prac- tice that an inquest could not be taken on the first day of the cir- cuit, and such is the present rule. Rule 36. See, also, ante, 54. No inquest can be regularly taken while the defendant is enti- tled to any privilege which is equivalent to a stay of proceed- ings. And, therefore, when a motion is made to change the venue, the plaintiff cannot notice the cause and take a regular inquest, while the motion is under advisement, if such motion is granted. Willson v. Henderson, 15 How. 90. The plaintiff takes the risk of having his proceedings set aside if the motion is decided against him. lb. So a notice of trial and inquest will be irregular while the defendant's time to serve an amended answer continues, if such amendment is made in good faith. Washburn v. Herrick, 4 How. 15 ; 2 Code R. 2 ; Griffin v. Cohen, 8 How. 451 ; Evans v. Lichtenstein, 9 Abb. N. S. 141. See ante, 28. If the amendment is made for the purpose of delay, see ante, 5. Where the answer is not amendable as of course, the plaintiff may proceed in the usual manner and take an inquest. Farrand v. Herbeson, 3 Duer, 655 ; Plumb v. Whipples, 7 How. 411. An inquest cannot be regularly taken on the first day of the circuit unless it is regularly called in its order upon the calendar. Rule 36 ; Smith v. Brown, 1 Duer, 665. Nor can an inquest be regu- larly taken out of its order on the calendar on any day after the first day of the term, if so taken after the trial of causes has been commenced. Newcomb v. Johnson, 9 Wend. 451. The object of the rule was to excuse a defendant from constant attend- ance to watch the taking of an inquest, and therefore it cannot be taken except at the opening of the court, and before the court proceeds to the trial of litigated causes. lb.; Anonymous, 6 Abb. 512. When the defendant does not appear, the plaintiff may, after TKIAL BY JURY. 57 Eights of defendant — Inquest, how taken. the first day of the term, call up the cause out of its order on the calendar, and take an inquest before the court without a jury. Haines v. Davis, 6 How. 1 18 ; 1 Code R. N. S. 407 ; Goodyear v. Baird, 11 id . 377. But an inquest thus obtained or permitted ought to be taken before the jury have been discharged. lb. ; Dickinson v. Kimball, 1 Code R. 83. g. Mights of defendant. When the cause is called out of its order, and an inquest taken because of the defendant's failure to file and serve an affidavit of merits, he will lose the advantages of making his defense. He may, however, appear at the inquest and cross-examine the plaintiff s witnesses, object to the plaintiff's evidence, and except to the rulings of the court. Green ads. Willis, 1 Wend. 78. He may overthrow the plaintiff's evi- dence by a cross-examination if he can ; but he cannot establish an affirmative defense by such cross-examination. Hartness v. Boyd, 5 Wend. 563 ; Kerker v. Carter, 1 Hill, 101. Where the cause is called in its regular order on the calendar, the defendant is entitled to appear and defend in the same man- ner as though a proper affidavit of merits had been filed and served. Starkweather v. Carswell, 1 Wend. 77 ; Merwan v. Ingersol, 3 Cow. 367. When the defendant, by his answer, denies all the facts stated in the complaint, judgment cannot be taken, even by default, without evidence. Patten v. Hazewell, 34 Barb. 421. So if the defendant sets up a set-off in his answer which is not denied by the plaintiffs reply, the amount of such set-off must be allowed on taking an inquest, even when the defendant does not appear on the inquest. Potter v. Smith, 9 How. 262. h. Inquest, how taken. The plaintiff cannot take an inquest, unless be has noticed the cause, and filed a note of issue and the cause is upon the calendar. Potter v. Davison, 8 Abb. 43 ; Browning v. Paige, 7 How. 487. If the plaintiff desires to take an inquest, he attends the court at its opening, and files his notice of trial with the proof or ad- mission of its due service, and delivers the pleadings to the clerk, who prepares a list of the inquests to be taken ; and, when a jury has been impaneled, the clerk calls the causes in their order on this list. When the cause is called, the case is briefly stated to the jury by the plaintiff's attorney; after which he proceeds to introduce the necessary evidence, as he must do to obtain a, regular verdict. Patten v. Hazewell, 34 Barb. 421. Vol. III. — 8 58 TRIAL BY JURY. Waiving inquest — Opening or relieving from inquest. After the evidence is given the verdict of the jury is rendered, which is usually done without leaving their seats. Judgment upon this verdict is entered as upon an ordinary verdict. The clerk will, upon application to him, furnish the attorney with the pleadings delivered to him for the use of the court on the trial, together with a certified copy of the minutes of the trial, which ought to be annexed to the pleadings, and all these papers duly filed in the clerk's office, for the purpose of entering judg- ment thereon. In preparing to take an inquest the plaintiff's attorney will make a copy of the pleadings for the use of the court ; he will also have sufficient proof of the service of the notice "of trial, and of the filing of the note of issue. If he requires witnesses, they will be duly subpoenaed. If he needs documentary evidence, it will be secured, and be sufficient in form and substance. And if computations of interest are important, they will be made and ready for use when needed in court. He will also be prepared, as well as practicable, for a trial in case the cause should be called in its regular order on the calendar, and the defendant then be ready for trial. As the defendant has a right to appear . and object to the evidence offered {ante, 57), it will be import- ant to have sufficient legal evidence to sustain the action, for if no evidence is given, the verdict will be set aside on the defend- ant's motion. Patten v. Hazewell, 34 Barb. 421. A verdict will not, however, be set aside for a variance between the evidence and the complaint. Burger v. Baiter, 4 Abb. 11. i. Waiving inquest. A plaintiff, who has obtained a regular inquest at the circuit, is not bound to waive it upon the applica- tion of the defendant, let the excuse be what it may, and upon an offer to pay costs. Smith v. Howard, 12 Wend. 198. The plaintiff may put the defendant to his motion, who, if relieved, instead of receiving the costs of the motion, must pay costs. lb. j. Opening or -relieving from inquest. The opening of an inquest is a species of application for a new trial, and one that is frequently made, either on the ground of irregularity in taking it, or as a matter of favor. Generally, the application cannot be made by any one but a party to the action who is injured by the default. Peck v. JV. T. & Liverpool Mail Steamship Co., 3 Bosw. 622. When the directors of an insolvent corporation will be heard. lb. If the defendant has made a case upon which to move for a TRIAL BY JUEY. 59 Opening or relieving from inquest. new trial he must rely upon that, as the inquest will not be opened. Mason v. Bidleman, 1 How. 62. Irregularity is a frequent ground of the motion for opening inquests. If the inquest is taken before it can be regularly done, as when it is taken on the first day of the circuit. Rule 36 ; SmitJi v. Brown, 1 Duer, 665. Or, if taken after the trial of a litigated cause at the circuit, on any day other than the first {Newcomb v. Johnson, 9 Wend. 451 ; Anonymous, 6 Abb. 512), it will be set aside as irregular. So of a case in which the inquest is taken before the defendant's time for serving an amended answer has expired (ante, 5, 28) ; or, where a motion for a change of venue is pending at the time of the inquest, but is subsequently granted (ante, 56) ; or, when a sufficient affidavit of merits has been filed and served in due season (Roosevelt v. Kemper, 2 Caines, 30 ; Philips v. Blagge, 3 Johns. 141 ; Smith v. Aylesworth, 24 How. 33) ; or, where the inquest is taken after . a regular notice of an application for a commission has been given (Le Conte v. Pendleton, 1 Johns. Cas. 135. See Kimball v. Knights, 18 Wend. 657) ; or, when the notice of trial is irregu- . lar or defective (Jeriks v. Payne, 15 Johns. 398 ; Williams v. Williams, 2 D. P. C. 350) ; or, no notice of trial is given. lb. So when the inquest is taken while the parties are endeavoring to compromise, in pursuance of an appointment for that purpose (Brevort v. Sayre, 2 Caines, 377) ; or, where the plaintiff, without notice, obtains a vacation of an order to stay his proceedings, but retains it until the first day of the circuit, and then serves it at a great distance from the court, and takes an inquest on the same day. Smith v. Bowen, 2 Wend. 245. But, where an order to stay is obtained by a defendant after receiving notice of trial, the plaintiff may, if he can, obtain a ' vacation of the order, and will be regular in taking an inquest afterward, without serving the defendant with notice that the order has been revoked. Kimball v. Knights, 18 Wend. 657. Under such circumstances it is the duty of the defendant to watch the cause. lb. In all these cases of irregularity on the part of the plaintiff, the inquest will be set aside with costs. Relief on the merits, or by way of favor, is sometimes asked, and is granted where a reasonable excuse is shown by the affida- vits, even where the inquest was regularly taken. Shultys v. Owens, 14 Johns. 345. 60 TRIAL BY JURY. Opening or relieving from inquest. Where counsel are absent and suffer an inquest to be taken on the ground that they believe the circuit is irregularly held, the defendant will be relieved upon an affidavit of merits, and on the payment of all the costs. Eagle Bank v. Holley, 7 Cow. 514. So where the defendant's counsel forgot to prepare an affidavit of merits in due time. Allen v. Mapes, 20 Wend. 633. So where counsel were engaged in another court of equal or superior jurisdiction. Fowler v. Hay, 1 How. 40. But not so in case counsel are trying a cause before a referee. Ward v. Ruckman, 23 How. 330 ; 32 id. 616 n. See Morris v. Slatery, 6 Abb. 74, 75. So when counsel were taken by surprise as to a call of the calendar. BosTier v. Harris, 1 How. 206 ; Morrell v. Gibson, id. 208 ; Farnam v. Despard, 1 Wend. 287. It is a long and well-settled practice that authorizes the court, in its discretion, to set aside inquests or to open defaults, for the purpose of attaining justice by a fair trial, when it appears that there is a good and substantial defense upon the merits, or that such defense probably exists, to the whole or to some part of the action. LeigMon v. Wood, 17 Abb. 177, 182. Such relief is often granted, even against the open and confessed negligence of . the defaulting party, or of his attorney or counsel. lb. An inquest should be set aside, unless the court can be fully satis- fied that the defendant has no eyidence which will materially reduce the recovery, or defeat it altogether. lb. The terms of granting relief are usually the costs of the term which has been lost, of the inquest, and of opposing the motion to open the inquest. lb. On setting aside the inquest the court will not impose the terms that the defendant shall waive a plea of the statute of limitations, or of usury. Allen v. Mapes, 20 Wend. 633 ; Lovett v. Cowman, 6 Hill, 223 ; Bank of Kinderlwok v. Gifford, 40 Barb. 659 ; Sheldon v. Adams, 41 id. 54 ; 18 Abb. 405 ; 27 How. 179 ; Union National Bank of Troy v. Bassett, 3 Abb. N". S. 359. So a party is not prohibited from setting up the defense of a former adjudication. Audubon v. Excelsior Fire Ins. Co., 10 Abb. 64. As to usury, see Morris v. Slatery, 6 id. 74. If the answer is insufficient, the court may refuse to set aside the inquest. Hunt v. Mails, 1 Code R. 118. In a proper case, and upon just terms, the attorney for the plaintiff will usually consent to open the inquest. If an order to open the inquest is granted, it must be duly entered and a TRIAL BY JURY. 61 Appeal from order opening inquest — Defaults. copy served upon the opposite attorney. And if the inquest is set aside upon terms, care must be taken to comply with such terms. Jc. Appeal from order opening inquest. As the power to open an inquest is entirely discretionary, no appeal will lie from an order opening an inquest. Ramsey v. Gould 4 Lans. 476, 478, 479, and cases cited ; Parish v. Corlies, 1 Daly, 274 ; Mil- lard v. Van Banst, 17 Abb. 319 n. See LeigMon v. Wood, id. 177. Section 9. Defaults. a. In general. The defaults which will be here referred to relate to such as take place when either party fails to appear at the trial after due notice. Neither party can take a default against the other, unless he has noticed the cause, filed a note of issue, and procured the cause to be placed upon the calendar. Browning v. Paige, 7 How. 487. Either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with the cause, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. Code, § 258. o. Plaintiff' s default. If the defendant has noticed the cause for trial, and the plaintiff fails to appear, the defendant' s attor- ney or counsel may read the proof of his notice of trial, and take a judgment of dismissal of the complaint, with costs. Code, §258. * But if the defendant does not desire a dismissal of the com- plaint, because he has interposed an affirmative defense, such a,s a set-off, counter-claim, or the like, he will introduce his evi- dence and take such a judgment as the pleadings and the evidence will warrant. Where there are several defendants, and but one of them has answered the complaint, or where each has a separate distinct defense, and has appeared by a separate attorney, he may, with the permission of the court, take the plaintiff's default as to himself even though the other defendants do not appear. Ournee v. Hoxie, 29 Barb. 547. If the defendant notices and moves the cause for trial, and the plaintiff is not ready on the first call of the calendar, the defend- ant may take his default, on any day of the term, if the plaintiff 42 TRIAL BY JURY. Special calendars — New York superior court. To entitle the cause to be placed on such calendar, the plain- tiff's attorney must give notice four days before any Monday in the circuit that he will move, on such Monday, to have the cause placed on such calendar ; and the motion will be heard on such Monday, and, if granted, the cause may be heard on the follow- ing Friday. If the notice is founded on the belief that the de- fense is for delay, affidavits must be served at the time of serving the notice. The plaintiff's attorney must also deliver to the clerk of the circuit a like notice, four days before such Friday, containing also the number of the cause on the general calendar. The same motion may be made on any day, before the judge at chambers, on a notice of four days. If the cause actually occupies more than one hour on the trial, the trial may be suspended, at the discretion of the court, and the same put down at the foot of the calendar. b. New YorTz superior court. In the New York superior court, by rule 23, adopted March 1, 1870, it is thus provided : In actions on contract, where there is reason to believe that the defense is interposed for the purpose of delay, and the trial will not occupy more than one hour, the plaintiff may apply by mo- tion at special term, on a notice of four days, to have the issue placed upon a special calendar for trial (serving with such notice any affidavits or papers he may wish to use on the motion, which have not been already served), and the same may be so ordered, in the discretion of the justice before whom the motion shall be made. If such motion be granted, the cause will be entered on the special calendar, to be made by the clerk, on receiving a note of the issue, specifying the number of the cause on the general cal- endar, and the date of order directing it to be placed on such special calendar ; such note of issue to be filed with the clerk four days before the day on which the cause shall be so entered. The special calendar shall be called on the second and last Fri- day of each jury term, in part first, by the justice then presid- ing, and the causes may be tried in either part, as may be directed by such justice. If the trial of the cause shall occupy more than one hour, the trial may be suspended, at the discretion of the court, and the cause be placed at the foot of the general calendar. TRIAL BY JURY. 43 New York common pleaa — Supreme court, second j udicial district. c. New Yorli common pleas. In the New York common pleas, by rule 16 of 1870, it is provided : In any action on contract, where there is reason to believe that the defense is interposed for delay, or that the trial will not occupy more than one hour, either party may, upon a notice of four days, apply at chambers to have the cause placed upon the special calendar for short causes, and which will be made up for the third Friday in each trial term. If the motion be granted, the order shall forthwith be delivered to the clerk, with a notice of the number of the cause on the general calendar. If the trial be not concluded in one hour, it will be suspended, and the cause will thereupon be put at the foot of the general calendar, unless the presiding judge shall otherwise order. d. Supreme court, second judicial district. The second judi- cial district, by a rule adopted October 24, 1856, provided as follows : At each circuit to be held after the first day of January, A. D. 1857, in the county of Kings, and also in any other county in the district where the circuit calendar shall contain more than one hundred causes, upon the order of the justice holding such circuit, a special circuit calendar shall be made up of causes be- longing to either of the two following classes, unless the trial is likely to occupy more than one hour : 1. Where the action is on contract, and the answer merely denies an allegation in the complaint, without setting up any new matter. 2. Where the action is on contract, and new matter is set up in the answer, and there shall be reason to believe that the defense is made merely for the purpose of delay. Either party intending to make application 'to place any cause on such calendar shall give notice thereof to the opposite party, at the time of noticing the cause for trial, and, if the application shall be founded on the belief that the defense is for delay, affi- davits disclosing the ground therefor must be served at least seven days before the circuit. On the first day of the circuit, after the juries shall have been impaneled and after hearing motions to correct the calendar, the calendar will be called through, and motions to place causes upon the special circuit, calendar will be heard as the causes are called. The causes ordered to be placed on such special calendars will 64 TRIAL BY JURY. Postponement of causes — By plaintiff. Section 10. Postponement of causes. a. In general. It may be that both parties are willing to try the cause, and yet the absence of some witness, deposition or document, or of counsel, may render a postponement of the cause necessary. Such an application may be made by either party, upon showing sufficient grounds by affidavit. The postponement may be a brief one, as to some later day in the circuit ; or, it may be to the next circuit, according to the circumstances of the case. It is only upon the application of a party that the cause is usually postponed. And the court is not at liberty to refuse to try a cause when duly reached on the calendar, merely because the cause has before been tried by him, and'sent back for a new trial. Fry v. Bennett, 3 Bosw. 200 ; 9 Abb. 45 ; affirmed, 28 N". Y. (1 Tiff.) 324. By proceeding to trial, there is sometimes a waiver in relation to previous irregular proceedings, or to some advantage possessed. And, if the defendant has procured a stay of proceedings, by going on with the trial he will waive the stay. Hasbrouck v. Ehrich, 7 Abb. 76. So previous irregularities in the practice will be waived by proceeding with the trial. D'lvernois v. Leavitt, 8 Abb. 59 ; Phillips v. Burr, 4 Duer, 113 ; Wall v. Buffalo Water Works Co., 18 N. Y. (4 Smith) 119. b. By plaintiff. It is a natural presumption that the plaintiff will be ready for trial at the calling of the cause in its order on the calendar. He is presumed to be possessed of evidence suffi- cient to maintain his action, from the very fact that the action has been commenced by him. If, however, for any cause, the plaintiff is unprepared for trial, he may proceed to obtain a postponement thereof until such time as he may be able to pro- ceed with safety to his interests. If the causes which render a postponement of the trial neces- sary are of a mere temporary character, which may be removed before the close of the circuit, the plaintiff should apply to the court upon affidavit for the postponement of the cause until a subsequent day of the circuit. The affidavit should set forth explicitly the nature of the obstacles to the immediate trial of the cause, such as the absence, or sudden illness of a witness, whose attendance may probably be procured in a few days, or any other similar reason for asking temporary delay. If it appears from the affidavit that there are sufficient reasons for the postponement, and that the plaintiff has been guilty of TRIAL BY JUEY. 65 Postponement — By defendant. no laches in preparing for trial, the application will, as a general rule, be granted. If the reason for asking for a postponement is the absence of a witness who has been duly subpoenaed, it will rest in the dis- cretion of the judge whether he will suspend the trial until the witness can be brought in by attachment, or otherwise. Rapelye v. Prince, 4 Hill, 119. If the plaintiff is not prepared for trial on the calling of the cause, the usual course is to allow it to go off, or to pass it and then stipulate to try it at the next circuit, or on a subsequent day of the same circuit, unless the court, for good cause shown, excuses the plaintiff from stipulating. On the calling of the cause, the counsel for the plaintiff should read his affidavit and move thereon that the cause be put off to the next circuit. The application will usually be granted on terms. c. By defendant. Applications for the postponement of trials are most frequently made by the defendant, and often originate in a desire to delay the enforcement of a demand, against which he has no valid defense. If, however, the defendant is for any good reason unable to proceed with the trial when the cause is called, he should apply to the court for a postponement. The defendant will be allowed a postponement on substan- tially the same grounds as would entitle the plaintiff to a similar favor. The application should be made on an affidavit setting forth the reasons why a postponement is necessary ; as the sickness or absence of a material witness, the illness of his attorney, or the like. These reasons should be stated in such a manner as to overcome the presumption that the application is made for the mere purpose of delay, especially if it is a case where the cause has been once postponed for the same reasons, or where the cir- cumstances of the case are such as to excite in the mind of the court a suspicion that the application may not be made in good faith. See People v. Yermilyea, 7 Cow. 369 ; Ogden v. Payne, 5 id. 15 ; Hooker v. Rogers, 6 id. 577. The importance of obtaining a postponement of the trial where one or more of the material witnesses are absent, cannot well be over-estimated ; for, where the defendant is apprized that there is a material witness, whose appearance he cannot procure Vol. III. — 9 66 TRIAL BY JURY. Grounds of postponement. in time, and yet goes to trial without his testimony, and a ver- dict is found against him, the court will not grant a new trial for the purpose of letting in the evidence of the witness. Jackson v. Malin, 15 Johns. 293 ; People v. Superior Court of New York, 5 Wend. 114. - d. Grounds of postponement. There are several grounds upon which either party may obtain a postponement of the trial. First among these is the absence of one or more material wit- nesses. The mere absence of a witness, when the cause is called for trial, is not of itself a ground for postponement. Before the court will entertain an application for a postponement of the trial on account of the absence of a witness, it must appear, 1. That the witness is material ; 2. That there has been no laches in pro- curing his attendance ; and 3. That there is reasonable ground to suppose that his attendance can be procured at the time to which it is proposed to put off the trial. If these three facts can be made to appear, the party will be entitled to a postpone- ment as a matter of right, founded upon what has become a principle of the common law. People v. Vermilyea, 7 Cow. 369 ; The King v. & Eon, 1 W. Bla. 510 ; S. C, 3 Burr. 1513. But where there has been laches, or there is reason to suspect that the object is delay, the postponement ceases to be a matter of right, and the judge may then take into consideration all the circumstances, and grant or deny the application in the exercise of a sound discretion. People v. Vermilyea, -7 Cow. 369 ; Ogden v. Payne, 5 id. 15 ; Leggeit v. Boyd, 3 Wend. 376 ; Brooklyn Oil Works v. Brown, 7 Abb. 1ST. S. 382; S. C, 38 How. 451; Fountain v. Anderson, 33 Ga. 372 ; Turner v. Merry weather, 7 Man,, Gr. & Sc. 251. Prima facie, the absence of a material witness from the State is a good ground for the postponement of a trial, although, as will be afterward shown, that fact will not in all cases be suffi- cient to give a party an absolute right to a postponement. Peo- ple v. Vermilyea, 7 Cow. 369 ; Ogden v. Payne, 5 id. 15 ; Vermilyea v. Rogers, 4 Hill, 567 ; Brown v. Murray, 4 Dowl. 6 Ryl. 830. But as the object of a postponement is to enable the party to procure the evidence necessary to sustain his action or establish his defense, the absence of the witness will be no ground for postponement if it is not probable that the witness TEIAL BY JURY. 67 Grounds of postponement. will return to the State. The King v. D* Eon, 1 W. Bla, 510 ; S. C, 3 Burr. 1513. See People v. 'Vermilyea, 7 Cow. 383. Laches in procuring the attendance of a witness, who has left the State, will also defeat the right to a postponement on that ground. Thus, a postponement will be denied, where the absent witness did not go abroad until after the notice of trial was given and the party desiring his testimony had an opportunity to sub- poena him in sufficient time. Barnes, 442 ; Davidson v. Brown, 4 Binn. 243. So a postponement will be denied where the application is made on the ground of the absence of a material witness, when no application has been made to the witness to know whether he will attend. Worsley v.' Bissett, 3 Dougl. 58. The rule will be the same if the neglect to subpoena the witness arose from his promise to attend at the trial. Freeland v. Howell, Anth. N. P. 272. The denial of a postponement on the ground of the absence of a material witness will always follow the laches of the party who has not procured the testimony of the witness when he had power to do so. WrigM v. McGuffie, 4 C. B. 1ST. S. 441. See Ward v. Wilkinson, 2 F. & F. 173. And so where there have been prior postponements of a cause on the ground of the absence of a material witness from the State, a further postponement will be denied, if the witness is in the employ of the party desiring his testimony, and is absent attending to his business. Wright v. McGuffie, 4 C. B. N. S. 441. If due diligence has been used in attempting to procure the attendance of a material witness since issue joined, but without effect, a postponement will be granted, although the party might have procured the attendance of the witness by due diligence exercised at an earlier day. A defendant cannot be presumed to know what evidence will be required, until after issue joined. Dale v. Heald, 1 Car. & Kirw. 314. This rule will not apply, however, where the material witness is the party defendant, even though his absence occurred prior to the joining of issue. Solo- mon v. Howard, 12 C. B. 463. A motion to postpone a trial, on the ground of the absence of a material witness, will be denied if based on the bare affidavit that the parties have been endeavoring to find the witness and cannot. Anonymous, Lofft. 653. Absence of a material witness, on account of sickness, is as valid a ground for a postponement as absence from the State. Hooker v. Rogers, 6 Cow. 577. 68 TRIAL BY JURY. Grounds of postponement. So a cause may be postponed to allow a defendant an oppor- tunity to obtain material and necessary documentary evidence. Mackenzie v. Hudson, 1 Dowl. & Ryl. 159. If a party has had an opportunity to examine a transient witness, the want of his testimony will furnish no ground for a postponement of the trial. McKay v. Marine Ins. Co., 1 Cai. 384. See Hays v. Berryman, 6 Bosw. 679. So where the im- proper delay of the party, for the purpose of taking an unfair advantage of his opponent, has been the cause of delaying the trial until the absence of a material witness occurs, the absence of the witness will not be deemed a sufficient ground for the postponement of the trial. Saunders v. Pittman, 1 Bos. & Pul. 33. A postponement will also be denied when the defense, in- tended to be introduced by the absent witness, is one deemed odious, as, where the action was for services, and the defense was that the plaintiff was a slave at the time of rendering the services. Robinson v. Smyth, 1 Bos. & Pul. 454. When a material witness is prevented from attending the trial by the fraud and practice of the adverse attorney, this absence will be a ground for postponement. Turquand v. Dawson, 1 Cromp., Mees. & Rose. 709 ; 5 Tyrw. 448. The absence of counsel is sometimes deemed a ground for postponement, but the courts will grant an application on that ground with reluctance, and only where the absence arises from necessity or misconception. Jackson v. Wakeman, 2 Cow. 578 ; Post v. Wright, 1 Cai. Ill ; M' Kay v. Marine Ins. Co., 2 id 384 ; Sayer v. Finck, id. 336 ; Rogers v. Garrison, id. 379. The illness of an attorney for the party is usually a ground for postponement. Hayley v. Crant, Sayer, 63. See Koy v. Clough, 2 Cai. 381. Absence of counsel on professional business is not a ground for the postponement of a trial (Jackson v. Wakeman, 2 Cow. 578), or, if it is so regarded, the cause will not be postponed beyond the term or circuit. Fake v. Edgerton, 6 Duer, 653. The publication of an article relating to the subject-matter of the controversy, immediately before the day fixed for the trial, and with intent to influence the jury, has been deemed a ground for postponement. Rex v. Cray, 1 Burr. 499, 510 ; King v. Jolliffe, 4 Term, 285 ; Coster v. Merest, 3 Brod. & B. 272. But where the publication consisted in a mere newspaper report of the remarks of a judge on an application for a new trial, to the effect TRIAL BY JURY. 69 Application for postponement — Affidavit — Requisites and form. that the verdict of the jury on the former trial was incorrect, a postponement was denied, although it was intimated that if the report was a misrepresentation, or had been accompanied by in- flammatory remarks or observations, it might have been a ground for postponing the trial until the agitation occasioned by it had subsided. Willis v. Farrer, 3 Young. & Jerv. 381. The fact that the cause has once been tried before the same judge is no ground for postponement. Fry v. Bennett, 3 Bosw. 200 ; S. C.,, 9 Abb. 45 ; Willis v. Farrer, 3 Young. & Jerv. 381. The arrest of a party when on his way to attend the trial of his cause is a good ground for postponement until his release. Solomon v. Underbill, 1 Camp. 229. e. Application for. The application to put a cause over the term may be made when the cause is called in its order, or at any time before, without notice, if the attorney of the adverse party is present. Usually upon the calling of the cause, the .party desiring the postponement reads his affidavit, setting forth the reasons why he cannot safely proceed to trial, and moves thereon for a postponement. /. Affidavit — requisites and form. A motion for a postpone- ment must be based upon an affidavit, and will not be entertained on a statement ore tenus. Smith v. Barker, 3 Day, 280 ; Brook- lyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451. If the ground upon which the application is made is the absence of a material witness, the. affidavit must show, 1. That the wit- ness is material ; 2. That the party has been guilty of no laches in attempting to secure his attendance ; and, 3. That the attend- ance of the witness can be procured at the time to which it is proposed by the moving party to postpone the trial. People v. Vermilyea, 7 Cow. 369 ; Brooklyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451 ; Rex v. & Eon, 1 W. Bla. 510 ; S. C, 3 Burr. 1513. The materiality of the witness may be shown by a statement of the party that he cannot safely proceed to trial without him, as he is advised by counsel and verily believes. Brooklyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451 ; People v. Vermilyea, 7 Cow. 369. Whether a defendant, in moving for a postponement, must include in his affidavit the essentials of an affidavit of merits, has been a question of much dispute. In the earlier English cases it was held necessary to swear to merits. Zoffani v. Jennings, Lofft. 187 ; The King v. Radcliffe, 1 W. Bla. 3 ; S. C, 1 Wils. 70 TRIAL BY JURY. Postponement — Affidavit — Requisites and form. 150 ; Fost. Cr. L. 40. But this rule has been uniformly disre- garded in the later English decisions, and the contrary rule asserted. Attorney-General v. Bull, 2 Dowl. Pr. Cas. Ill ; Hill v. Prosser, 3 id. 704 ; McCaulay v. Thorpe, 1 Chitty, 685 ; Cook- son v. Simpson, id., note. In the earlier decisions of the courts of this State, an affidavit of merits was not required. People v. Vermilyea, 7 Cow. 369 ; Booker v. Rogers, 6 id. 577 ; Ogden v. Payne, 5 id. 15 ; Pulver v. Hiserodt, 3 How. 49. But, since an affidavit of merits has been declared necessary in a recent de- cision, it may be advisable, as a matter of precaution, to swear to merits in the affidavit on which the application for the postponement of the trial is based. See Brooklyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451. An affidavit, which briefly states the reasons why an absent witness has not been obtained, that the party expects to be able to procure his attendance thereafter, and that without his testi- mony the party cannot safely proceed to trial as he is advised by counsel, and believes, is termed a common or general affidavit. This affidavit will be sufficient if the application for a post- ponement is the first that has been made in the cause by the moving party, unless circumstances appear which give cause for suspicion that the object is delay. People v. Vermilyea, 7 Cow. 369 ; Brooklyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451 ; Booker v. Rogers, 6 Cow. 577 ; Ogden v. Payne, 5 id. 15 ; Pulver v. Hiserodt, 3 How. 49. If the allegations contained in this affidavit are not defeated by counter affidavits, the party will be entitled to a postpone- ment, lb. But if there has already been a postponement of the trial at the instance of the party soliciting a further postponement, or any other circumstance raising a suspicion that his application is merely for delay, he must then present a special affidavit. lb. The special affidavit must state the cause of action, and the evidence expected from the witness, in order that the court may judge whether it is material. People v. Vermilyea, 7 Cow. 369 ; Brooklyn Oil Works v. Brown, 7 Abb. N. S. 382 ; S. C, 38 How. 451 ; Bean v. Turner, 31 Md. 52 ; King v. Jones, 8 East, 31 ; Lord v. Cooke, 1 W. Bla. 436. The affidavit should also state circumstances from which the court may infer the probability of the return of the witnesses within a reasonable time. The King v. D' Eon, 1 W. Bla. 510 ; TRIAL BY JURY. 71 Postponement — Form of common affidavit. S. C, 3 Burr. 1513 ; People v. Francis, 38 Cal. 183 ; Ubanks v. State, 41 111. 486 ; Byne v. Jackson, 25 Tex. 95 ; State v. Bora- bacher, 19 Iowa, 154. The affidavit need not state when the wit : ness was subpoenaed nnless this is made a ground of objection. Hooker v. Rogers, 6 Cow. 577. Under the English practice it is unnecessary to state the name of the witness, on account of whose absence the party cannot proceed to trial. Smith v. Dobson, 2 Dowl. & Ryl. 420 ; Buck- ingham v. Banks, 4 id. 832. But in this State the name of the absent witness is usually disclosed, although there seem to be no reported decisions declaring it essential. It will be advisable to state the name of the absent witness in the affidavit, even if it is not strictly necessary. See Smith v. Barker, 3 Day, 280 ; Carey v. Philadelphia, etc., Petroleum Co., 33 Cal. 694 ; Webb v. State, 21 Ind. 236 ; Huff v. Freeman, 15 La. An. 240. As a general rule, the affidavit upon which a motion for a postponement is based must be made by a party. Carter v. Uppington, Barnes, 437. In certain cases, however, the affidavit may be made by the attorney (Duberly v. Chinning, Peake's Cas. 97), or by his clerk, if he was particularly acquainted with the circumstances of the cause, and had the management of it. Sullivan v. Magill, 1 H. Bla. 637. But in such cases the affi- davit must state that he had, in fact, the management of the cause, and was particularly acquainted with the circum- stances, lb. In no case will the affidavit of the clerk be received without sufficient excuse. Chase v. Edwards, 2 Wend. 283 ; Bird v. Moore, 3 Hill, 447. Form of common affidavit. (Title of cause.) ( Venue.) , A. B., being duly sworn, says : I. That he is the defendant in this action. II. That issue was joined herein on the day of , instant ; and that notice of trial was served by the plaintiff on tiie next day. III. That E. P., of the town of , in the said county, is a material witness for him, the deponent, in this cause, without whose testimony he cannot safely proceed to the trial thereof. IV. That deponent has fully and fairly stated to , Esq., his counsel herein, who resides at , the case in this cause, and the tacts which he expects to prove by the said E. P. 72 TRIAL BY JURY Postponement — Opposing application. V. That deponent is advised by his said counsel, after such statement, and verily believes, that the said E. F. is a material witness for deponent, and that without his testimony deponent cannot safely proceed to the trial of this cause. VI. And this deponent further says, that he has a good defense upon the merits in this cause, as he is also advised by his said counsel and verily believes. VII. And this deponent further says, that, in consequence of the notice of trial aforesaid, this deponent caused immediate inquiry to be made at the residence of the said E. F. , with a view to have him subpoenaed ; but was there informed by his wife that he had gone to Philadelphia, in the State of Pennsyl- vania, and was not expected to return home until the day of next, at which time the deponent verily believes he will return. VIII. And this deponent believes that he will be able to pro- cure the attendance of the said E. F., as a witness in this cause, at the next circuit court to be held in and for the said county of 3 {Jurat.) {Signature.) g. Opposing application. The application for a postpone- ment may be opposed by counter-affidavits showing that the statements in the moving papers are untrue, or by showing that the papers themselves are defective, in some essential particular, or that the application is not made in good faith, or that the case is not a proper one for granting a postponement. If the postponement is sought on the ground of the absence of a material witness, the opposing party may defeat the motion by offering to admit the facts to which the absent witness is expected to testify. Brill v. Lord, 14 Johns. 341 ; Brooklyn Oil Works v. Brown, 7 Abb. 1ST. S. 382 ; S. C, 38 How. 451. But the application cannot be defeated by an admission that the absent witness, if present, would swear as alleged by the moving party. People v. Vermilyea, 7 Cow. 369 ; Be Warren v. State, 29 Tex. 464. Where the moving papers state what it is expected an absent witness would testify, and the party opposing the application admits the truth of the facts so stated, he will be afterward pre- cluded from giving evidence contradictory to such facts. Brent v. Heard, 40 Miss. 370. An affidavit showing that the unfair conduct of the moving party was tie cause of the delay of the trial until the absence of the material witness occurred, will also defeat a postpone- TRIAL BY JURY. 73 Postponement — Decision on application. ment. Saunders v. Pittman, 1 Bos. & Pal. 33 ; Almgill v. Pierson, id. 103. The motion may also be successfully opposed by counter-affi- davits stating circumstances that render it impossible or improba- ble that the evidence of the absent witness can be obtained within a reasonable time. Anonymous, 3 Day, 308. The materiality of the evidence expected from an absent wit- ness cannot, however, be successfully denied on counter affida- vits, lb. But if it appears from the affidavits of the moving party that the proposed evidence is not material, the application will be denied. See People v. Smith, 3 Wheel. Cr. Cas. 172, 176 ; The Territory v. Nugent, 1 Mart. (La.) 108 ; The King v. D' Eon, 3 Burr. 1513 ; S. 0., 1 W. Bla. 436 ; Harper v. Lamping, 33 Cal. 641. The admissibility of the proposed evidence will not be consid- ered by the court on a question of postponement. Mackenzie v. Hudson, 1 Dowl. & Ryl. 159. The importance of the proposed testimony will, however, be considered in deciding the motion to postpone. Chambers v. Hadley's Heirs, 3 J. J. Marsh. 98 ; State v. Klinger, 43 Mo. 127. The fact that the proposed wit- ness is, or has been, the attorney for the moving party, and may have acquired his knowledge from communications made to him professionally, and therefore may refuse to be sworn, is not a ground for opposing a postponement. Ogden v. Payne, 5 Cow. 15. See Beatty v. Sylvester, 3 Nev. 228. The motion may be successfully opposed by showing lack of due diligence on the part of the moving party to obtain the tes- timony of an absent witness. The failure of the party to take the testimony of a transient witness de bene esse, is a good ground for opposing the motion, if the party had the power to do so previous to the trial. McKay v. Marine Ins. Co., 2 Cai. 384 ; Hooker v. Rogers, 6 Cow. 577. But it is in general no answer to the application that the party had an opportunity to examine a sick witness de bene esse, where the witness is not a transient or sea-faring person. h. Decision on application. The proper disposition of a motion for a postponement is not a question unattended with difficulty. As has previously been stated, in a. case where the common affidavit applies, the court has no discretion, and a post- ponement is a matter of right, resting on what has become a principle of the common law. But where there has been laches, Vol. III. — 10 74 TRIAL BY JURY. Postponement — Decision on application. or there is reason to suspect that the object is delay, the judge at the circuit may then take into consideration all the circum- stances of the case, and grant or deny the application in his dis- cretion. People v. Vermilyea, 7 Cow. 369. There are few cases in which the judge at the circuit is not called upon to exercise his discretion in deciding a motion for a postponement, as it sel- dom happens that a postponement is a matter of strict right. As has been well remarked by Justice Nott, of South Carolina, "The various shifts to which a party will frequently resort to effect the postponement of a case ; the perseverance with which one will press for a trial when he finds his antagonist unpre- pared ; the zeal with which the counsel will enter into the feel- ings of their clients ; and the difficulty of getting at the truth when each party is determined to take all advantages of the other which circumstances may throw in his way ; all combine to render a question of postponement one of the most difficult and embarrassing that is met with in "the administration of- jus- tice. And, although there are certain general rules by which the courts are usually governed, yet, among the infinite variety of circumstances which contribute to render a case an exception to the general rule, almost every one may be resolved into a question of discretion which must be governed by its own par- ticular circumstances. And there would be no end of delay if the court were not permitted to exercise a liberal discretion in laying the parties under such reasonable terms as are calculated to facilitate the progress of a suit, and to promote the ends of justice.' ' Farrand v. Bouchell, 1 Harp. 85. While it must be admitted that the allowance or denial of a postponement is in most cases within the discretion of the judge at- circuit, it must also be admitted that the discretion is not arbi- trary, but is controlled and regulated by fixed principles of practice. Brooklyn Oil Works v. Brown, 7 Abb. TS. S. 382; S. C, 38 How. 451. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party shows that a subpoena for the witness has been returned executed, or, if not so returned, was delivered to the proper officer of the county or cor- poration in which the witness resides, a reasonable time before the trial, and shall swear that the witness is material and that he cannot safely go to trial without his testimony, a postponement ought to be granted, if there are reasonable grounds to believe TEIAL BY JURY. 75 Postponement — Terms imposed. that the attendance of the witness at the next term can be secured, especially if there has been no prior postponement for the same cause. But where the circumstances satisfy the court that the real purpose in moving for a continuance is to delay or evade a trial, rather than to prepare for it, then, though the witnesses have been subpoenaed and the party has sworn to their material- ity, and that he cannot safely go to trial without them, the post- ponement should be denied. Hewitt v. Commonwealth, 17 Gratt. (Va.) 627. i. Terms imposed. On an application to postpone a trial, the judge may, as a condition of granting the order, require the pay- ment to the adverse party of a sum not exceeding $10, besides the fees of witnesses. Code, § 314. The costs imposed cannot, however, exceed that amount. Noxon v. Bentley, 6 How. 418. See Keil v. Rice, 24 id. 228. Terms other than the payment of costs may, however, be im- posed as a condition of granting the postponement. Thus, on an application by a defendant for a postponement, the court denied the application, unless the defendant would stipulate to allow an inquest on the next adjourned day, if he was not ready to proceed. Brooklyn Oil Works v. Brown, 38 How. 451 ; S. C, 7 Abb. N. S. 382. So, in an action of tort, where the defendant asked to put off the trial for want of wit- nesses, and it appeared that the moving party was laboring under a mortal malady, and that there was just cause to apprehend that he might die previous to the next circuit, the judge required the defendant's counsel to stipulate, as a condition of putting off the trial, that the action should not abate, if the defendant should happen to die previous to the next circuit. Ames v. Webbers, 10 Wend. 576 ; 11 id. 186. So, also, the plaintiffs in replevin were required by the court, as a condition of the post- ponement of a trial, to renew their sureties on the bond to the sheriff, given on the institution of the suit. Decker v. Judson, 16 N. Y. (2 Smith) 439. So in a libel cause, to which justifica- tion was pleaded, the court postponed the trial, to enable the de- fendant to procure witnesses from abroad, but imposed the terms of his undertaking to admit on the trial the publication of the alleged libel. Brown v. Murray, 4 Bowl. & Ryl. 830. It is only in extreme cases, in which the rights of the adverse party may be endangered by the postponement of the trial, that stipulations will be imposed as a condition of granting the order. 76 TRIAL BY JURY. Costs — Form of order of postponement. In ordinary cases, if a proper case is presented for putting off the trial, nothing further will be required than the payment of the costs of the circuit. Hall v. Dwinell, 10 Wend. 628. j. Costs. If the postponement is granted on the condition of the payment of the costs of the circuit, the moving party has twenty days in which to make payment, unless the time of pay- ment has been otherwise fixed by the court. But where the costs to be paid have not been adjusted, the party is allowed fifteen days in which to comply with the order, 'after the costs have been adjusted by the clerk on notice, unless otherwise directed. Rule 32, Sup. Ct. It is the duty of the party moving for the postponement to seek the adverse party, and tender the costs imposed as a condition of granting the order, without waiting for a formal demand of them. Jackson v. Pinkney, 19 Johns. 270. See Bullteley v. Keteltas, 2 Sandf. 735. When a party obtains a postponement of the trial of a cause on payment of costs, his adversary may insist on having the trial proceed, on omission to pay ; or he may waive that right, and either compel payment by precept in the nature of a fieri facias, or include them in his general bill in case he ultimately succeeds in the action. Gamble v. Taylor, 43 How. 375. Jc. The order, its requisites and form. The order directing . the postponement of the trial, should state the time to which the cause is put over, and specify the terms upon which the order is granted. If the order is granted on the payment of costs, the order should be made conditional on a compliance with the order, as the circuit judge has no power to make a direct order for the payment of costs. Bagley v. Ostrom, 5 Hill, 516. The order may direct that the trial be postponed upon the payment of costs within a certain time, or that judgment absolute be entered against the party in case he should accept the favor and make default in complying with the condition upon which it was granted. Booth v. Whitby, 5 Hill, 446. Form of order of postponement. {Title of cause.) On reading and filing the affidavit of and on motion of , of counsel for the , and after hearing of coun- sel for the in opposition, Ordered : That the trial of this cause be put off until the next circuit court to be held of this county on the immediate payment by the , of % , the costs of this circuit. (Signature of judge.) TRIAL BY JURY. Relief if postponement refused — Incidental applications. I. Relief if postponement refused. The practice on applying for relief where a postponement has been refused on the trial, is in some respects the same whether the trial was by the court or by a jury. Thus, where a party defendant feels himself aggrieved, by a refusal to postpone the trial, whether such refusal be made on a trial by jury, or a trial before the court, he may withdraw from the trial, and if the trial proceeds and the cause is decided against him, he may, upon affidavits showing the application to postpone, the papers upon which it was founded, its denial, and that a decision has been made against him, make a non-enumer- ated motion at special term to set aside such decision ; he may also remain and try the cause on the merits, and in case of a decision against him, either pursue the same course to obtain a new trial, or may, if the trial was by jury, under section 265, move at special term, on a case, for a new trial, alleging as one of the grounds of error, the refusal to postpone the trial ; or, if the trial were by the court, then under section 268, may appeal directly to the general term, alleging as cause for reversal the refusal to postpone. Howard v. Freeman, 7 Rob. 25 ; S. C, 3 Abb. K S. 292 ; Ogden v. Payne, 5 Cow. 15 ; Hooker v. Rogers, 6 id. 577 ; People v. Vermilyea, 7 id. 369 ; Brooklyn Oil Works v. Brown, 38 How. 451 ; S. C, 7 Abb. N. S. 382 ; Miller v. Por- ter, 17 How. 526. An appeal from an order refusing a postponement is never x proper where the trial is by jury. lb. Section 11. Incidental applications. a. Objecting to jurisdiction. If it appears upon the face of the complaint that the court has no jurisdiction of the person of the defendant, or of the subject-matter of the action, the defend- ant may raise the objection for the first time upon the trial, and move for judgment of dismissal before or af,ter entering upon the trial. An objection to the jurisdiction of the court is not waived by a failure to raise the objection by demurrer or answer. Code, § 148. A lack of jurisdiction is an incurable defect to which an objection may be raised, even after verdict and on appeal. See Valarino v. Thompson, 7 N. Y. (3 Seld.) 576 ; Burnham v. Be Bevorse, .8 How. 159 ; Griffin v. Bominguez, 2 Duer, 656 ; S. C, 11 K Y. Leg. Obs. 285. If the objection to jurisdiction has not been previously taken, the proper time to raise the objection is when the cause is called 78 TRIAL BY JURY. Objecting to want of parties — Suppressing deposition. and before entering upon the proofs. The remedy of the party is by motion for a dismissal of the complaint. b. Objecting to want of parties. The general discussion of the subject of parties to action has been incorporated in a preced- ing volume. See vol. 1, p. 88. As has been there stated, if there is a lack of parties apparent upon the face of the complaint, the defendant' s remedy is by demurrer. Or where such defect exists, but is not apparent upon the face of the complaint, the remedy is by answer. If the objection is neither raised by demurrer nor answer, it will be waived. Id. 119, 139. It sometimes occurs that the court finds it necessary, on its own motion, to let a cause stand over for the purpose of amendment, by adding and bringing in parties, after the trial has been com- menced, or even completed. While the Code authorizes the court to determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights, it also provides that, when a complete deter- mination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. Id. 161-165 ; Code, § 122. When it appears on the hearing that the presence of other par- ties is necessary to a complete determination t>f the controversy, it is the imperative duty of the court to order them to be brought in, and to order the cause to stand over for that purpose, even though no objection has been raised by either party. State of New York v. Mayor, etc., of New York, 3 Duer, 119 ; Davis v. Mayor, etc. , of New York, 2 id. 663. The mode of bringing in other parties, whether on motion of the court or otherwise, has been already pointed out. Vol. 1, p. 163-165. Where an order has been made, directing other parties to be brought in, the process and pleadings must be amended accordingly, and due service made on the parties. c. Suppressing deposition. Where a notice of a motion to suppress a deposition has been served, it is customary to bring on the motion before entering upon the trial of the cause. After hearing the counsel upon each side, the court will decide at once as to the admissibility of the deposition, or will allow it to be read conditionally, reserving the question of admissibility until the final disposition of the cause. As to the practice in such cases, see Evidence, vol. 2, 671, 704. TRIAL BY JURY. 79 Objections to pleadings — Trial and its incidents. d. Objections to pleadings. There are but two objections which can be taken to a pleading on the trial ; the one, that the court has no jurisdiction of the action, and the other, that the complaint does not state facts sufficient to constitute a cause of action. Winter son v. Eighth Avenue B. H. Co., 2 Hilt. 389 ; Luddington v. Taft, 10 Barb. 447. Either of these objections may be raised for the first time upon the trial, and will not be waived by an omission to demur. Coffin v. Reynolds, 37 N. Y. (10 Tiff.) 640 ; S. C, 5 Trans. App. 74 ; Code, § 148. The practice of taking objections to a pleading on the trial is not favored by the courts. Smith v. Countryman, 30 N. Y. (3 Tiff.) 655 ; Meyer v. Fiegel, 34 How. 434 ; S. C, 7 Rob. 123. When, from any reason, it may be deemed necessary to object at the circuit to a pleading, on the ground that it does not state facts sufficient to constitute a cause of action, the objection should be taken before entering upon the trial. If, on the other hand, the defendant fails to object to the sufficiency of the complaint until the plaintiff has closed his case, and evidence has been given establishing a cause of action, the, court may allow the complaint to be amended, and overrule the objection. Meyer v. Fiegel, 34 How. 434 ; S. C, 7 Rob. 123. An objection to an answer that it does not set up matter suffi- cient to constitute a defense or counter-claim, cannot, however, be raised upon the trial by motion to strike it out. A judge has no power to strike out pleadings on the trial. If the plaintiff omits to demur to an answer or defense, it must, for the purposes of the issue, be deemed sufficient in law, subject to the power of the court to reject evidence which, if received, could not consti- tute a defense or counter-claim. Smith v. Countryman, 30 N. Y. (3 Tiff.) 655. The court may, in effect, disregard an immaterial issue by excluding the evidence offered in support of it. But, unless the case is a very clear one, the court will leave the party to his motion for a new trial, or an appeal. lb. Section 12. Trial and its incidents. a. In general. The Code provides that either party giving the notice may bring the issue to trial, and, in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. Code, § 258. It also provides that a separate trial, between a plaintiff 80 TRIAL BY JURY. Trial and its incidents — Reference on the trial. and any of the several defendants, may be allowed by the court whenever, in its opinion, justice will thereby be promoted. lb. To carry this provision into effect, it is further provided that, in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. Code, § 274. The interests of the parties to be thus severally tried must be either several or severable. The same rule applied to actions prior to the Code. A several trial and judgment, before the Code as well as since its adoption, was proper in an action against the maker and indorser of a note, and in all similar cases. But a several judgment against joint debtors or contractors, not by their contract severally liable, was not proper before the Code, nor is it now. People v. Cram, 8 How. 151 ; Fullerton v. Taylor, 6 id. 259 ; S. C, 1 Code R. N. S. 411. Neither has the court power to divide an action of foreclosure, and render a contingent judgment for the balance of the debt remaining unsatisfied after a sale of the mortgaged premises, previous to the rendition of the principal judgment for a foreclosure and sale of the premises mortgaged. Cobb v. Thornton, 8 How. 66. Nor can an action against several defend- ants be brought to trial against one or more of them before it is in readiness for a hearing as against, all. It cannot be tried in sections without leave of the court. Ward v. Dewey, 12 How. 193. Nor where an action is at issue as against all of several defendants, can any one of them give notice of trial, and, upon the failure of the plaintiff to appear, take a judgment against him by default. The cause must not only be in readiness for trial as between all the parties to the action, but it must also have been noticed by all the defendants who have a right to appear upon the trial. If there are several defendants who are each entitled to notice of trial, all must have notice before the plaintiff can move on the trial. On the other hand, all the defendants must have given notice of trial to the plaintiff before any of them can move the trial as against the plaintiff. lb. Though the court may permit a defendant who has a distinct and separate defense, to bring the cause to trial, and, in a proper case, take a dismissal of the complaint. See ante, 6, 7. b. Reference on the trial. The subject of moving for a refer- ence of the issues in an action, upon notice, and before trial, will TRIAL BY JURY. 81 Reference on the trial — Hearing cause out of order. be found fully discussed elsewhere. The motion to refer the cause may also be made on moving the cause for trial in its order on the calendar, or at any time before, without notice, if done in the presence of the adverse attorney. McCoun v. Row- ley, 19 Wend. 85. So in a proper case, where the propriety of a reference is dis- closed on the trial, the court may, on its own motion, or on the motion of a party, withdraw the cause from a jury and direct a reference. The cause, in such cases, must be wholly withdrawn, as a cause cannot be tried before a jury in part, and a verdict taken, and partly by a referee afterward to be appointed. Buchanan v. CJieseborough, 5 Duer, 238. c. Hearing cause out of order. Although it _ is the usual course to hear causes in their order on the calendar, without giving preference to one cause over another, yet they are some- times heard out of their order and -advanced for hearing, on motion, and for good cause shown. Thus where two causes between the same parties, and involving substantially the same points of controversy, are both noticed and on the calendar, but stand at a distance from each other, the court will allow either the last cause to be advanced, or the cause which stands first to be postponed so that both may come on at the same time, on its being shown that it is material that both causes shou id be heard together. Under the old chancery practice, in certain cases, a cause might be brought to a hearing on bill and answer without taking any proofs, the answer being considered as true in all points, and the statements of what the defendant expects to prove being considered as proved. See BrinckerTioff v. Brown, 7 Johns. Ch. 217. Unier the present practice the same result may be accom- plished by interposing a demurrer to the answer. So where the answer is in the nature of a counter-claim, or defense to only a part of the plaintiff's complaint, and admits the residue, the plaintiff may move for judgment for the residue at the hearing, or before that time on notice, by conceding on the motion that the counter-claim or answer is true. Code, § 246. So where the plaintiff has served a reply to a counter-claim which goes only to part of the plaintiff's complaint, leaving the residue un- answered, the plaintiff may waive the reply and move for judg- Vol. Ill — 11 82 TEIAL BY JURY. Hearing cause out of order. ment on such part of the cause of action as remains unanswered, if he chooses to concede the truth of the counter-claim. So where the defendant has interposed, as a counter-claim, mat- ter which cannot be pleaded as such under the Code, the plain- tiff may disregard the counter-claim, and move for and obtain judgment on the complaint. Van Valen v. Lapham, 13 How. 240 ; S. C. affirmed, 5 Duer, 689. A defendant also may take advantage on the trial of any defect in the complaint or reply, and, on the calling of the cause, move for such judgment as he is entitled to on the pleadings. Burn- ham v. De Bevorse, 8 How. 159 ; Budd v. Bingham, 18 Barb. 494. As every material allegation in the complaint not contro- verted by the answer, and every material allegation of the counter- claim not controverted by the reply, are taken as true, under section 168 of the Code, these uncontroverted allegations are admissions for the purposes of a motion for judgment on the pleadings, which cannot be contradicted or varied by proof on the trial. See Hackett v. Richards, 11 N". Y. Leg. Obs. 315 ; Bridge v. Payson, 5 Sandf. 210. A judgment contrary to such admissions in the pleadings would, if objected to on the trial, be erroneous. lb. As the material facts set up in a merely defensive answer are, under section 168, to be deemed controverted, the plaintiff will, by moving for judgment on the pleadings, admit the truth of every material allegation therein, and the question will be then pre- sented with the same effect as if raised by demurrer. But although new matter set up in an answer as a defense is sham or irrelevant, the plaintiff cannot move at the trial to strike it out, on the ground that the facts stated do not constitute a valid defense to the action. If the plaintiff omits to demur to an answer or defense, it must, for the purposes of the issue, be deemed sufficient in law, subject to the power of the court to reject evidence, which, if received, could not constitute a defense or counter-claim. Smith v. Countryman, 30 N. Y. (3 Tiff.) 655. A defendant also may, before entering upon the proofs, move for judgment on the pleadings, as, for example, where the answer sets up a counter-claim to which no reply has been served, and where he has not moved for judgment under section 154 of the Code. Or even if a reply to the counter-claim has been served, he may still move for a judgment of dismissal if the complaint shows upon its face that the plaintiff has no title TRIAL BY JURY. 83 Papers for the court — Stenographer — Demurrer to evidence. to relief upon the facts therein stated. Code, § 148 ; Bumham v. Be Bevorse, 8 How. 159 ; Budd v. Bingham, 18 Barb. 494 ; Bennett v. American Art Union, 5 Sandf. 614. This motion should, however, be made before entering npon the proofs ; for, if the defendant waits until the plaintiff has closed the evidence to sustain his case, without objecting to the sufficiency of the complaint, the motion will not be regarded with favor; and, if the plaintiff's proof establishes a cause of action, the motion will be denied, and the plaintiff be permitted to amend. Meyer v. Fiegel, 7 Rob. 123 ; S. C, 34 How. 434. See Smith v. Countryman, 30 K Y. (3 Tiff.) 655. d. Papers .for the court. When the issue is brought to trial by the plaintiff, it is his duty to furnish the court with a copy of the summons and pleadings, together with the offer of the defendant, if any has been made. When the issue is brought to trial by the defendant, and the plaintiff neglects or refuses to furnish the court with a copy of the summons and pleadings, and the offer of the defendant, the same may be furnished by the defendant. Code, § 259. e. Stenographer. In the city of New York a stenographer is employed to report the proceedings of each court. Code, § 256. By the act of 1871, provisions were made for the employment of stenographers in the circuit courts, courts of oyer and terminer and special terms of the supreme court in the sixth, seventh and eighth judicial districts. Laws of 1871, ch. 700. By the act of 1872, the statute above cited was amended so as to include the third, fourth and fifth judicial districts. Laws of 1872, ch. 139. By the act of 1868, similar provisions had been made for the second judicial district, and also for the several county courts therein. Laws of 1868, ch. 765. Stenographers are similarly employed in the several surrogates' courts of this State. Laws of 1871, ch. 874 ; Code, § 256. /. Demurrer to evidence. Under the old practice a party might obtain the decision of the court as to whether the facts proved did or did not maintain the issue by demurring to the evidence. The effect of a demurrer to evidence was to admit the facts proved and to deny their sufficiency to maintain the issue. See 1 Hill, 471, note a ; Oolegrove v. N. Y. & M H. R. R. Co.,20N. Y. (6 Smith) 492. A demurrer to evidence has long since gone out of use in this State, and is no longer to be regarded as a right upon which 84 TRIAL BY JURY. Jurisdiction after cause passed — Admissions. an exception can be predicated. Colegrove v. JV. Y. & J7. H. It. R. Co., 20 N. Y. (6 Smith) 492. This mode of procedure was not regarded with favor by the earlier courts of this State, and may now be considered obsolete here as it is in England. See Patrick v. Hallett, 1 Johns. 241 ; 1 Burr. Pr. 241 ; 1 Archb. Pr. 439. g. Jurisdiction after cause passed. A judge at circuit has jurisdiction of causes on the calendar after they have been called and passed. Thus, where a cause is reached at the circuit and called for trial by the defendant, and the plaintiff gives notice of discon- tinuance and tenders costs, the judge may, at any time after and during the same circuit, upon affidavits showing that the costs have not been paid, make an order dismissing the complaint, with costs, and directing an extra allowance. Moffatt v. Ford, 14 Barb. 577. 7i. Admissions. No evidence can be received in favor of a party which tends to contradict an admission made by siich party in his pleadings. Crosbie v. Leary, 6 Bosw. 312. An ad- mission made at or before the submission of a cause cannot sub- sequently be retracted. Koliler v. Wright, 7 Bosw. 318. When counsel agree as to what is admitted in the pleadings the court will not look into them, but will assume an uncontradicted statement of their contents to be true. It will be too late to question the truths of such a statement for the first time on the argument of an appeal. Munson v. Hagerman, 5 How. 223 ; S. C, 10 Barb. 112. A party who fails to call attention at the trial to an implied admission in his favor in the pleadings, will not afterward be permitted to avail himself of their benefit, even when overlooked by the court in consequence. Williams v. Hayes, 20 1ST. Y. (6 Smith) 58. While all the allegations of a complaint not specifically denied are to be regarded as admitted, yet where there are several an- swers, an admission made in one of them will not be available against the others ; and where one of the answers fails to deny any of the allegations of the complaint, the plaintiff will not be thereby released from the necessity of proving his case. Each answer must stand by itself as a distinct defense, and the plain- tiff must recover upon the whole record. Swift v. Kingsley, 24 Barb. 541. Testimony given by a party on a former trial, during which he TRIAL BY JURY. 85 General practice at the trial. was examined as a witness for the adverse party, and which is directly contrary to his testimony in a second suit, may be given in evidence as an admission. Pickard v. Collins, 23 Barb. 444. A demurrer remaining upon the record is an admission of the facts stated in the pleading to which it is interposed, not only for the purposes of the argument, but as evidence upon the trial of the issue to which the pleading demurred to relates. Cutler v. Wright, 22 N. Y. (8 Smith) 472. But a demurrer which has been abandoned, like a pleading which has been amended, is no longer a part of the record, and cannot be regarded as an admis- sion of the facts stated in the pleading to which it is interposed. Brown v. Saratoga R. R. Co., 18 1ST. Y. (4 Smith) 495. i. General practice at the trial. One of the most important things to be taken into consideration, in preparing for a trial before a jury, is the procuring of the evidence necessary to sus- tain the action or to establish a defense. It is not only necessary that all witnesses whose testimony is material be duly subpcenaed in advance of the trial, but, also, that they be present at the circuit, and in readiness to take the stand whenever their testi- mony is needed.. It should be one of the first duties of the attorney to see that the evidence upon which he relies to estab- lish his case is at all times available. If the evidence is of a doc- umentary character, he should keep it at all times under his control ; and, if it is to be obtained from witnesses, he should take measures to secure their continued attendance until their testimony has been given. The attorney should also, as far as possible, anticipate the general character of the testimony that will be offered on either side ; the objections that may be raised thereto ; and the points of law which may be necessary to sustain or defeat such objec- tions. The character of the witnesses themselves must not be overlooked ; nor must the possibility of their impeachment be disregarded. The probable demeanor of the witnesses while giving their evidence, the necessity of restraining the over-confi- dent, and of encouraging the timid, although matters that may seem unimportant, are worthy of consideration, as the verdict of the jury is based not only upon the matter to which the wit- nesses testify, but also upon the manner in which they give then- evidence. The probable or possible prejudice of an individual member of the jury should also be considered, and the means of obtain- 86 TKIAL BY JURY. General practice at the trial — Puis darrein continuance. ing his discharge without resorting to the peremptory challenge should be determined by the attorney. The calling of the jury, the right of challenge, etc., will be considered hereafter. The cause being in readiness for trial, and the jury impaneled, sworn, and the attorney for the party holding the affirmative of the issues opens the case by reading the pleadings, or stating their substance to the jury, and also the facts and circumstances of the case, the substance of the evidence he is prepared to adduce, and its effect in proving the case stated. The case being opened, the attorney for the plaintiff proceeds to examine the witnesses in their order. The mode of conduct- ing the examination will be noticed hereafter. The adverse attorney has the privilege of cross-examining each witness at the close of his direct examination. Either party is entitled to be heard in relation to points of law arising incidentally during the progress of the trial, the one in support of an objection, the other in answer thereto. The plaintiff, after having made a, prima facie case, rests, and the defendant is thereupon entitled to open the defense to the jury, and to proceed to examine his witnesses. The defendant, having established the facts on which he relies to defeat the action, or to reduce the amount of the plaintiff's recovery, he will then rest his case and the attorney for the plaintiff may then proceed to call witnesses for the purpose of disproving the de- fense attempted to be made out by the defendant' s witnesses. The evidence in the case being closed, it is within the discretion of the court to allow either party, afterward, to recall a witness. If no such request is made, or if such request is made and re- fused, the counsel for the defendant ordinarily sums up the evi dence, and the counsel for the plaintiff replies thereto. The judge thereupon delivers his charge to the jury, who then retire to consider their verdict. The details of the several steps in the trial of the cause, which have thus been briefly outlined, will be given in the subsequent sections, together with the matter incidental thereto. j. Puis darrein continuance. Under the old practice a de- fendant, at any time before the jury actually gave their verdict, might plead in abatement or in bar of the action, any matter of defense arising after the service of the answer. This plea was termed puis darrein continuance, and, as a general rule, was a TEIAL BY JURY. 87 Puis darrein continuance — Contempts. waiver of the former pleading. If the plea was put in at the cir- cuit, no further proceedings could be had on it there, but it was certified on the back of the record at nisi prius, and returned to the court above. The rules relating to this plea, and to its effect on the subse- quent conduct of the cause, are unimportant under the present system of pleadings and practice, except so far as they furnish a guide to the allowance of a supplemental answer, which, under the Code, is a substitute for the plea puis darrein continuance. See Bate v. Fellowes, 4 Bosw. 638 ; Hoyt v. Sheldon, 4 Abb. 59 ; S. C, 6 Duer, 661 ; Medbury v. Swan, 46 N. Y. (1 Sick.) 200. But, while the supplemental answer takes the place of the former plea, puis darrein continuance, it is not like that of a waiver of defenses before interposed, and is not confined to mat- ters arising since the last continuance. A plea puis darrein could not be rejected or treated as a nullity, because not pleaded in due time, or at the proper time ; and could only be set aside upon application to the court ; and the court, in its discretion, could permit the plea to stand. The right to allege new matter, by supplemental pleading, is not, however, an absolute and positive right, but is made to de- pend upon the leave of the court, in the exercise of a legal dis- cretion. The application may be refused, if the new defense, although strictly legal, is inequitable, or if the application is not made with reasonable diligence. Medbury v. Swan, 46 TS. Y. (1 Sick.) 200. The plea, puis darrein continuance, could be interposed on the trial and at any time before verdict. A supplemental plead- ing can be allowed only by the court on motion, and cannot be allowed at the trial. Lyon v. Isett, 11 Abb. N. S. 353 ; S. C, 42 How. 155 ; Garner v. HannaTi, 6 Duer, 262. The decisions above cited are authority for the assertion that the practice relating to the allowance of a plea, puis darrein continuance, is unimportant in connection with the practice on a trial under the Code. It. Contempts. There are two classes of contempts which every court of record has power to punish ; and two classes of pro- ceedings for the punishment thereof. These are either proceed- ings to punish for criminal contempts ; or proceedings as for contempts to enforce civil remedies. Pitt v. Damson, 37 N. Y. 88 TRIAL BY JURY. Contempts. (10 Tiff.) 235 ; S. C, 34 How. 355 ; 3 Abb. N. S. 398 ; 4 Trans. App. 266. The subject of contempts will be fully discussed in a subse- quent part of this work. It will be sufficient to state in this con- nection what constitutes a contempt. The statute declares that every court of record shall have power to punish, as for a criminal contempt, persons guilty of either of the following acts, and no others : 1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2. Any breach of the peace, noise, or other disturbance, di- rectly tending to interrupt its proceedings. 3. Willful disobedience of any process or order lawfully issued or made by it. 4. Resistance willfully offered by any person to the lawful order or process of the court. 5. The contumacious and unlawful refusal of any person to be sworn as a witness ; and when so sworn, the like refusal to answer any legal and proper interrogatory. 6. The publication of a false or grossly inaccurate report of its proceedings ; but no court can punish as a contempt, the publi- cation of true, full and fair reports of any trial, argument, pro- ceedings, or decisions had in such court. 2 R. S. 278 (288), § 10. Thus it is highly improper for counsel to interrupt the orderly proceedings of a court of justice by instructing a witness not to answer questions. The right to refuse to answer being strictly personal, the interference of counsel to prevent answers from being given, will render him liable to be adjudged guilty of dis- orderly or contemptuous behavior, directly tending to interrupt the proceedings, or to impair the respect due to the authority of the court ; and the court may thereupon issue an attachment and commit him. ITeerdtv. Wetmore, 2 Rob. 697. See Taylor v. Wood, 2 Edw. Ch. 94 ; Burnett v. Phalon, 19 How. 530, 537 ; 11 Abb. 157, 162. The authority to punish for such misconduct pertains solely and exclusively to the court in whose immediate view and pres- ence the misconduct occurs. lb. TRIAL BY JURY. 89 Judgment on the pleadings — The jury. Section 13. Judgment on the pleadings. a. In general. The right of either party to an action to de- mand judgment on the pleadings has been already noticed in the preceding section. It is there stated that the defendant may move for a dismissal of the complaint on the ground that it does not set forth a cause of action, or because there is a counter- claim to which no reply has been served ; and so also it is stated that the plaintiff may move for judgment upon the pleadings, when the answer sets up a defense or counter-claim going only to a part of. the plaintiffs demand, or if the answer sets up a counter-claim which is invalid, even, where, if valid, it would off-set the plaintiff's demand. For the authorities to sustain these propositions see p. 79, ante. Section 14. The jury. a. In general. The right to a trial by jury, as has been here- tofore shown, is a constitutional right of which neither the courts nor the legislature can deprive a party. Townsendv. Hendricks, 40 How. 143. The cases in which the trial of an issue of fact is a matter of strict right it is unnecessary here to consider, as that question is sufficiently discussed elsewhere. Ante, 9, 12. But the right being strictly personal, it may be waived by the consent, of the party, who may agree that the cause shall be tried by the court without a jury, or by a referee. See Code, §§ 253, 266. It also may be waived by the neglect of the party to assert the right in due season. Thus, where an issue is such that a party is entitled, on a proper demand, to have the same tried by jury, a failure to make such demand before the trial is commenced will be deemed a waiver of the right. McKeon v. See, 4 Rob. 449 ; Pennsylvania Coal Co. v. Delaware and Hudson Canal Co., 1 Keyes, 72 ; Barlow v. Scott, 24 N. T. (10 Smith) 40 ; Moffat v. Moffat, 10 Bosw. 468 ; S. C, 17 Abb. 4. The mode of obtaining an impartial jury will be pointed out in the subsequent subdivisions of this section. o. Qualifications of jurors. The Revised Statutes provide that the supervisor, town clerk, and the assessors of the several towns of the State, shall assemble at a time and place designated for the purpose of making a list of persons to serve as jurors. The said town officers, when so assembled, are required to select from the names of those assessed on the last assessment Yol. III. - 12 90 TRIAL BY JUEY. Qualifications of jurors. rolls of the town, suitable persons to serve as jurors. In mak- ing such selection they are allowed by the statute to take the names of such only as are, 1. Male inhabitants of the town not exempt from serving on juries ; 2. Of the age of twenty- one years or upward, and under sixty years old ; who are at the time assessed for personal property belonging to them in their own right to the amount of $250, or who shall have a freehold estate in real property in the county belonging to them in their own right, or in the right of their wives, to the value of $150 ; 4. In the possession of their natural faculties, and not infirm or de- crepit ; 5. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed. 2 R. S. 411 (428), § 13. Persons residing in either of the counties of Niagara, Erie, Chautauqua, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence, and Franklin, who do not possess the property qualifications before mentioned, but who are qualified in all other respects, and who have been as- sessed in the last assessment roll of the town for land in their possession which they hold under contract for purchase, upon which improvements have been made to the value of $150, and who own such improvements, are qualified to serve as jurors, and may be selected and returned as such by the proper officers. Id., §14. A person may be worth $250 in personal property over and above all debts, and yet not be qualified to serve as a juror if he is not a freeholder and has never been assessed in respect to any personal estate. Valton v. Nat. Loan Fund Life Ass. Soc, 111 Abb. 268. So he may be a freeholder and an inhabitant of the town, and yet not be qualified to serve as a juror, if not a citizen of the United States. Borst v. BeecTcer, 6 Johns. 332 ; 1 R. S. 721 (669), § 20 ; 8chuma7cer v. State, 5 Wis. 324, 328. In the city of New York, no person is allowed to serve as a juror unless he is an intelligent man, of sound mind, and good character, free from legal exception, and able to read and write the English language understandingly. But no person is dis- qualified from serving as a juror by reason of age, unless he is more than seventy years old ; nor by reason of non-residence if he has dwelt or lodged in the city or county for the greater part of the time between the first day of October and the thirtieth day of June next thereafter ; and to render a person liable to do TRIAL BY JURY. 91 Summoning and enforcing attendance, duty as a juror, it is not necessary that such person shall be assessed or vote in the city. Laws of 1870, ch. 539. In consideration of certain duties performed for the State, the statutes give to certain persons a right to claim exemption from jury duty. But as this right is a mere personal privilege, and its existence does not disqualify the juror, nor form a ground for challenge, it is unnecessary to do more than to allude to it in this connection. See 2 R. S. 415 (432), § 33. See Laws of 1870, ch. 539. c. Summoning and enforcing attendance. Duplicate lists of the persons selected to serve as jurors having been made out and duly signed, one copy of the said lists must be transmitted to the county clerk, and the other must be filed with the town clerk. 2 R. S. 412 (429), § 15. The county clerk at the time specified is required to write out the names of the parties contained in the list with their additions and places of residence, and to deposit them in the form of bal- lots in a box kept for that purpose. § 16. Fourteen days before the 'holding of any circuit court or sit- tings, or of any special court of oyer and terminer, where no circait is appointed to be held at the same time, or at any court of common pleas or mayor's court in the city and county of New York, or before the holding of the superior court or the court of general sessions, the clerk of the county in which such court is to be held is required to draw the names of thirty-six persons to serve as petit jurors at such court, and also to draw such number in addition thereto as shall have been ordered according to law. 2 R. S. 413 (430), § 24 ; Laws of 1861, ch. 215. Six days' notice of the drawing must be given in the manner prescribed by the statute. § 25. The sheriff and county judge should be present at the drawing ; or in their absence, and after the prescribed proceedings have been had to require their attendance, the clerk may proceed to draw the jurors in the presence of the other officers specified in the statute. See 2 R. S. 414 (431), § 28. The mode of drawing is as follows : The clerk, after shaking the box containing the names of the jurors, draws .out as many slips containing such names as there are jurors required, and each name as drawn is entered in the minutes of the drawing kept by one of the attending officers. After drawing the required num- ber of names, if any of the persons whose names have been 92 TEIAL BY JURY. Summoning and enforcing attendance. drawn are known to be dead, insane or removed from the county, the slips containing their names are destroyed and others drawn instead, until the required number of jurors has been drawn. The minute of the drawing is then signed by the clerk and the attending officers, and filed in the clerk' s office. A list of the names of the persons so drawn, with their additions and places of residence, and specifying for what court they were drawn, is then made and certified by the clerk and attending officers and delivered to the sheriff of the county. § 29. The sheriff is required to summon the persons named in the list to attend the court, and this must be done at least six days previous to the sitting thereof by giving personal notice to each person, or by leaving a written notice at his place of residence with some' person of proper age. The sheriff is also required to return the list to the court at the opening thereof, specifying who were summoned and the manner in which each person was notified. § 30. The court may impose a fine not exceeding $25 for each day that any person duly summoned as a juror shall, without rea- sonable cause, neglect to attend. But, if it appears, by the sheriff's return, that any person was notified by leaving a written notice at his place of residence, the court is required to suspend the fine until the defaulting juror has been notified as provided by law. 2 R. S. 415 (432), § 32. Every court of record of the city of New York has power to cause any person who has omitted to appear and answer any summons to attend as a juror to be arrested and brought before the court, if the summons before mentioned was personally served ; and, if such person is liable to serve as a juror, may punish him by fine or imprison- ment. Laws of 1870, ch. 539, § 15. The fine imposed cannot be less than $50, nor more than $250 ; but if it appears by the return that the juror was not personally served with the sum- mons, he must be notified to show cause why the fine should not be imposed in the manner provided by the act. § 18. The act cited also makes it the duty of every court to impose a fine in every case in which a person duly summoned as a juror shall not appear, and provides for the arrest and imprisonment of the juror for default in payment, unless the fine shall be remitted as provided therein. The county judge of any of the counties of this State is author- ized, at the time of drawing grand and petit jurors, to attend any TRIAL BY JURY. 93 Additional jurors — Alien jury. county court or court of sessions to be held in their respective counties, to designate any day during said term that he may deem expedient, on which the petit jurors shall be required to attend for the trial of issues of fact ; and it is the duty of the sheriff of the county to summon such petit jurors to attend such court on the day designated by the county judge. Laws of 1861, ch. 8. d. Additional jurors. Whenever any circuit court, or court of oyer and terminer, shall be satisfied that the public interest requires the attendance at such court, or at any adjourned term thereof, of a greater number of petit jurors than is now required to be drawn and summoned for such court, then said court may, by order entered in its minutes, require the clerk of the county to draw, and the sheriff to summon, such additional number of petit jurors as it shall deem necessary, which number shall be specified in said order. The clerk of the county in which such court is held shall forth- with bring into court the box containing the names of the petit jurors, from which jurors from said county are required to be drawn, and the clerk shall, in the presence of the court, proceed publicly to draw the number of jurors specified in the order, and, when such drawing is complete, make two lists of the per- sons so drawn, each of which shall be certified by him to be a correct list of the names of the persons so drawn by him, one of which he shall file in his office, and the other he shall deliver to the sheriff. The sheriff shall thereupon immediately proceed to summon the persons mentioned in such list to appear in the court in which the order requiring the attendance of such jurors shall have been made on the day designated in such order, and the persons so summoned shall appear, in obedience to such sum- mons, and all the provisions of law relating to the swearing in of jurors, and their punishment for non-attendance, not incon- sistent with this act, shall apply to the swearing in, summoning and punishment of the jurors drawn and summoned under this act. Laws of 1871, ch. 16. e. Alien jury. Trials of issues of fact, by jury, in every court of common-law jurisdiction, must be had by jurors, drawn, sum- moned and returned, as prescribed by statute ; and no alien is, under existing laws, entitled to a jury of part aliens or strangers in any suit whatever. 2 R. S. 419 (437), § 53. 94 TRIAL BY JURY. Fees of jurors. /. Fees of jurors. The Revised Statutes allow, as fees to each juror impaneled to try a cause in any circuit court or court of common pleas, twenty-five cents for each cause in which he is impaneled, to be paid by the party noticing the cause for trial, or, if noticed by both parties, to be paid by such party as the court shall direct. 2 R. S. 643 (662), § 37. In addition to these fees, the boards of supervisors of the respective counties of the State may, at their annual meeting, direct a sum, not exceeding $2 per day, to every grand or petit juror for attending the courts of record held within the county. This allowance may be made to grand jurors only, or to petit jurors only ; and the supervisors may also direct an allowance to be made to such jurors for travelling, in coming to and return- ing from such courts, but not to exceed five cents per mile. Any sums so allowed to jurors are made by the statute a county charge, and are paid to the jurors by the county treas- urer, on the production of a certificate of the clerk of the court at which they have attended, specifying the time each juror has actually attended, and the distance traveled by him. 2 R. S. 643 (662), § 37 ; Laws of 1866, ch. 307. Each juror sworn in any action in a mayor's court is entitled to a fee of twenty-five cents ; and each juror sworn before any officer in any special proceeding allowed by law, or before any sheriff upon any writ of inquiry, or to try any claim to personal property, is entitled to a fee of twelve and a-half cents. lb. The fees of jurors in the city and county of New York are regulated by special statute. In that city, no person can serve as a juror in courts of record at more than two terms in any jury year. While attending as jurors they are entitled to re- ceive for each day of actual attendance and service in the court of general sessions of the peace, or in the court of oyer and terminer, the sum of $2 to be paid to him by the county treasurer upon a certificate by the clerk of his attendance and service, and an order of the court for his payment ; and in other courts of record each juror is entitled to receive for each case in which he shall be impaneled, $1 if the case be tried, and fifty cents if default be made, such fee to be paid by the clerk of the court, and to be collected by him, by requiring the pay- ment of fifty cents before the case is placed on the calendar, and if there be a trial, fifty cents before the verdict shall be entered. Laws of 1870, ch. 539. TRIAL BY JURY. 95 Calling and swearing jury. g. Calling and swearing jury. The Revised Statutes pro- vide that, at the opening of every court at which issues of fact are to be tried, the clerk of the court shall cause the names of the several persons returned as jurors by the sheriff, with their respective additions and places of residence, to be written on several and distinct pieces of paper ; and shall roll up or fold such pieces of paper, each in the same manner, as near as may be, and so as to resemble each other as much as possible, and so that the name written thereon shall not be visible. These papers must be deposited in a proper box. 2 R. S. 420 (438), § 59. When any issue is brought on for trial, the clerk, under the direction of the court, openly draws out of the box, one by one, so many of the ballots containing the names of the jurors re- turned, as will be sufficient to form a jury. 2 R. S. 420 (438), § 60. But before the jury is drawn, the box containing the names of the jurors must be closed, and be well shaken, so as to inter- mingle the ballots, and the clerk must then draw the ballots/ from the box through a hole in the lid, and without seeing the names written on 'such ballots. 2 R. S. 421 (439), § 66. The first twelve persons who shall appear as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn, and shall be the jury to try the issue. 2 R. S. 420 (438), § 61. The ballots containing the names of the jurors so sworn must then be deposited in another box and there kept apart from the ballots containing the names of the other jurors until such jury be discharged. 2 R. S. 420 (438), § 62. After such jury have been discharged the ballots containing their names must be again rolled up or folded, and returned to the box from which they were first taken. The same course must be pursued as often as any issue shall be brought on to be tried. 2 R. S. 420 (438), § 63. If any juror is absent at the time his name is drawn and called, or is set aside, or excused from serving on the trial of any issue, the ballot containing his name must be rolled or folded again, in the same manner as before, and returned to the box containing the undrawn ballots, as soon as a jury is sworn to try the issue. 2 R. S. 421 (439), § 67. When the court has discharged any juror, by reason of his exemption from jury duty, it is the duty of the clerk to destroy the ballot containing the juror's name. 2 R. S. 415 (433), § 34. 96 TEIAL BY JURY. Calling and. swearing jury. The court is required to discharge any person from serving on a jury, in the following cases : 1. When it shall satisfactorily appear that such person is not at the time the owner in his own right, or in the right of his wife, of a freehold estate in real property, situated within the county, of the value of $150, and is not the owner of personal property to the value of $250 ; or, if the person is a resident of either of the counties of Niagara, Erie, Chautauqua, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence or Franklin, where it shall appear thathe has not land in his possession which he holds under contract for pur- chase, upon which improvements owned by him have been made to the value of $150. 2. When it shall appear that such person is under twenty-one years of age, or over sixty years of age, or that he is not in the possession of any of his rational faculties. 3. When there is any legal exception against such person. 4. When such person is a non-commissioned officer, musician, or private of any uniformed company or troop, and is duly equipped and uniformed, according to law, and shall claim such exemption. The evidence of such exemption shall be the certifi- cate of the commanding officer of the company or troop, that the person claiming the same is a member of such company, and is duly equipped and uniformed according to law. Such certificate must be dated within three months of the time of presenting the same, and the signature must be verified by oath. Every such certificate must be filed with the clerk of the court to which it is offered. 5. When such person is a member of any company of firemen duly organized according to law. 6. When such person is in the actual employment of any glass, cotton, linen, woolen or iron manufacturing company by the year, month or season. 7. When such person is a superintendent, engineer or col- lector of any canal authorized by the laws of this State, any portion of which shall be actually constructed and navigated. 8. When such person is a minister of the gospel, or teacher in any college or academy, or when such person is or shall be exempted by law from serving on juries. 2 R. S. 415 (432), § 33. Every commissioned officer, and every non-commissioned offi- cer, musician and private of the National Guard shall be exempt TRIAL BY JURY. 97 Calling and swearing jury. from jury duty ; and every such, person who shall have served seven years, and been honorably discharged, shall forever after be exempt from jury duty. Laws of 1870, ch. 80, § 253. Every general and staff officer, every field officer, and every commissioned and non-commissioned officer, musician and pri- vate of the military forces of this State who enlisted or accepted office during any of the time from April 17, 1854, to April 29, 1865, and was or may be honorably discharged after serving for seven years, shall forever after, so long as he remains a citizen of this State, be exempt from jury duty. Laws of 1871, ch. 245. The operators, assistant operators, clerks and other persons in the employ of the different telegraph companies in the State of New York, and while doing duty in the offices of said com- panies, or along the routes of their telegraph lines, shall be ex- empt from militia duties and serving on juries, and from any fine or penalty for neglect thereof. Laws of 1861, ch. 215. In the city of New York no person is exempt from serving as a juror by reason of age, unless he is more than seventy years old ; and a dwelling or lodging by any person in the city and county of New York for the greater part of the time between the first day of October and the thirtieth day of June next there- after, is a sufficient residence to render such person liable to do duty as a juror ; and it is not necessary that such person be assessed or vote in that city. Laws of 1870, ch. 539, § 4. The laws relating to the exemption of jurors in the city of New York are as follows : The commissioners of jurors shall exempt from serving as jurors the following persons : 1. Every person who is not, at the time of application, the owner in his own right, or in the right of his wife, of real or per- sonal estate of the value of $250. 2. Ministers of the gospel, professors and teachers in colleges, academies, or public schools, practicing physicians and sur- geon dentists having patients requiring their daily professional attention, and attorneys and counselors of the supreme court of this State in actual practice at the bar thereof, provided that any such person is not engaged in any other business. 3. Every person holding office under the United States, or the State, city or county of New York, whose duties at the time shall prevent his attendance as a juror. 4. All persons actually engaged in business as pilots or engi- Vol. III.— 13 98 TRIAL BY JURY. Calling and swearing jury. neers ; all captains and other officers of steam or sailing vessels ; all consuls of foreign nations ; all telegraphic operators. 5. The grand jurors for the year, selected pursuant to law. 6. Every person who shall have well and truly served in any Legally organized fire department or company in this State, for the period prescribed by law to entitle him to exemption. 7. Every officer, non-commissioned officer, musician and private actually serving in any brigade, regiment, battalion, company or troop of the New York State militia uniformed and equipped according to law, and faithfully performing all the duties of a soldier therein by making the parades, and attending the drills, inspections and reviews required by law, or who shall have done so for the period heretofore prescribed by the laws of this State to entitle him to such exemption, and the evidence of such right to exemption from jury duty shall be the certificate of the com- manding officer of the regiment, brigade, battalion, company or troop to which the applicant belongs, bearing date, when relating to services not already completed, within three months of the time of its presentation and duly verified by the oath or affirma- tion of the person applying for such exemption, which certifi- cate shall be filed with the commissioners of jurors. 8. All persons who shall be physically incapable of perform- ing jury duty, by reason of severe sickness, deafness or other physical disorder. The evidence required for either the perma- nent or. temporary exemption of any such person shall be the certificate of a reliable physician together with the oath or affirmation of the person claiming exemption, or such other evi- dence as the commissioner may deem necessary. Laws of 1870, ch. 539, § 6, as amended by Laws of 1872, ch. 535. The Revised Statutes provide that the court to which any per- son shall be returned as a juror shall excuse such juror from serving at such court, whenever it shall appear : 1. That he is a practicing physician, and has patients requir- ing his attention ; or 2. That he is a surrogate, or justice of the peace, or executes any other civil office, the duties of which are, at the time, incon- sistent with his attendance as a juror. 3. That he is a teacher in any school, actually 1 employed and serving as such. 4. When, for any other reason, the interests of the public or of the individual juror, will be materially injured by such TRIAL BY JURY. 99 Talesmen. attendance ; or his own health or that of any member of his family requires his absence from such court. 2 R. S. 416 (433), § 35. h. Talesmen. Whenever a sufficient number of jurors, duly drawn and summoned, do not appear, or cannot be obtained, to form a jury, the court may order the sheriff to summon from the by-standers, or from the county at large, so many persons qualified to serve as jurors, as shall be sufficient. 2 R. S. 420 (437), § 54. The sheriff shall summon the number so ordered from among the inhabitants of the county duly qualified to serve as jurors in the cause, and return their names to the court. Every person so summoned shall attend forthwith and serve as a juror, unless excused by the court ; and for any neglect or refusal to so attend, shall be subject to fine in the same manner as jurors regularly drawn and summoned, as hereinbefore provided ; and the per- sons so summoned shall be subject to all exceptions and chal- lenges as other jurors. 2 R. S. 420 (437), § 55. In addition to these provisions of the Revised Statutes, it has been further enacted, that the clerk of every county, in addition to the box by law now provided and kept for the purpose of con- taining the names of jurors drawn to serve at any court, shall provide another box in which he shall deposit the names of all persons who have been selected and returned as suitable persons to serve as jurors, and who reside in the city or town where courts are appointed by law to be held. Whenever a sufficient number of jurors duly drawn and sum- moned do not appear, or cannot be obtained to form a jury, the court may order the sheriff to draw in the presence of the court, from the box so kept by the clerk of the county, and containing the names of persons returned to serve on petit juries, for the city or town where such court is held, the names of so many persons as shall be sufficient and as the court may direct. The court may also, by the consent of the parties to any action pend- ing therein, order the sheriff to summon from the by-standers, or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make the full panel of jurors on the trial of such action. The sheriff shall forthwith summons the persons so drawn and make return thereof in the same manner as now provided by law in cases where persons are summoned as jurors from the by- 100 TRIAL BY JURY. Special jury. standers, and the persons so summoned shall attend forthwith and serve as jurors unless excused by the court, and shall be subject to the same penalties for neglect or refusal to attend. This act does not apply to the city and county of New York, nor to the county of Kings. Laws of 1861, ch. 210. The act above given does not repeal or in any wise affect sec- tions 54 and 55 of article 4, title 4, chapter 7, part 3 of the Revised Statutes. Laws of 1867, ch. 494. The power of the court to require an additional number of jurors to be drawn and summoned, whenever in the opinion of the court an additional number may be necessary, has already been referred to. See Additional Jurors, ante, p. 93. See also Laws of 1870, ch. 409, as amended by Laws of 1871, ch. 16. i. Special jury. The Revised Statutes provide that when it shall appear to the supreme court, or to any county court, or the superior court of the city of New York, or to the superior court of Buffalo, in which any cause shall be pending, that a fair and impartial trial cannot be had without a struck jury, or that the importance or intricacy of the cause requires such a jury, such court shall order a special jury to be struck for the trial of such cause. 2 R. S. 418 (435), § 46, as amended by Laws of 1857, ch. 530. An application for a struck or special jury is not regarded with favor by the courts, and will be, granted only in extreme cases. People v. McGwire, 43 How. 67 ; Walsh v. Sun Mutual Ins. Co., 2 Rob. 646 ; S. C, 17 Abb. 356 ; Nesmith v. Atlantic Ins. Co., 8 id. 423 ; PatcMn v. Sands, 10 Wend. 570. The mere fact that the government of the United States is interested in a cause does not make it of sufficient importance to grant a struck jury. The parties litigant do not make a case important. Hartshorn v. Gelston, 3 Cai. 84. Neither will the fact that the controversy has a local interest be, of itself, a sufficient ground for ordering a struck jury. Thus, where an action in the nature of a quo warranto was brought to try the title to the office of justice of the district court of the city and county of New York for the seventh judicial dis- trict, the application for a struck jury was denied. People v. McGuife, 43 How. 67. So where an action grew out of a long agitated controversy between the public officers of Brooklyn and the plaintiff, relative to a contemplated improvement in the open- ing of a street, the motion for a struck jury was denied, although TRIAL BY JURY. 101 Special jury. the affidavit on which, the motion was based alleged the belief of the plaintiff that there would not be a fair and impartial trial of the cause by jurors of the county where the action was neces- sarily triable. PatcMn v. Sands, 10 Wend. 570. So the mere fact that there have been previous trials of the same action by jurors drawn in the ordinary manner, and that the final disposition of the cause has been upon each occasion deferred through the misbehavior or disagreement of the jury, will not be a sufficient ground for ordering a special or struck jury. Nesmiih v. Atlantic Ins. Co., 8 Abb. 423. But, although cases seldom arise in which a struck jury may be properly ordered, the statutes relating to special juries are still in force, and the rules of practice relating to the proceedings to obtain such jury are far from obsolete. When a struck jury is ordered, the party obtaining the order must give eight days' notice of the time when he will attend before the clerk of the county in which the venue in such action is laid, for the purpose of having such jury struck. At the time appointed the clerk of the county is required to attend at his office, with the original list of the jurors returned to him by the officers of the several towns, who are then liable to serve, and in the presence of the parties or their counsel, proceed to strike a jury. The mode of proceeding is as follows : The clerk selects frSm the list the names of forty-eight persons whom he deems most indifferent between the parties, and best qualified to try the cause. The party on whose application the jury was ordered is then entitled to strike out one of the names so selected, and the opposite party or his agent is then entitled to strike out another, and so alternately until each party has struck out twelve names. If. either party fails to attend at the time and place of striking such juror*, or neglects to strike out any names as above provided, the clerk must strike for him. The clerk thereupon makes out a list of the names of the twenty- four persons not stricken out, and certifies the same to be the persons drawn to serve as jurors pursuant to the order of the court, and delivers the list so certified to the sheriff of the county. 2 R. S. 418 (435), §§ 47, 48. The sheriff is required to summon the persons named in the list in the same manner as other jurors are summoned, and to 102 TEIAL BY JURY. Foreign jury — Challenges. return the names of those summoned to the court at which they are required to appear as jurors. 2 R. S. 418 (436), § 49. The jury selected for the trial of the cause is formed from the persons so summoned, and appearing in the same manner as other juries are formed ; and the court has the same power to excuse or discharge any such juror, as in other cases. 2 R. S. 418 (436), § 50. If it appears to the court, upon an application for a struck jury, that the clerk of the county is interested in the cause, related to either party, or not indifferent between them, the court must appoint two proper persons to strike the jury, if an order is made allowing a special jury. The persons so appointed will possess all the powers of the clerk in relation to the striking, certifying and delivering to the sheriff the names of the persons struck as jurors, and the sheriff is required in like manner to summon the persons so selected. 2 R. S. 418 (436), § 51. The expense of striking a jury must be paid by the party ap- plying for the order, and cannot be taxed in thje costs of the suit. 2 R. S. 418 (436), § 52. j. Foreign jury. Under the old practice, it was customary in cases of general interest, where an impartial trial could not be had in the county where the venue was laid, to apply for an order directing a foreign jury drawn from a neighboring county. If it was clear that an impartial trial could not be had by a jury drawn from the county, the order was granted. StryJcer v. Turn- bull, 3 Cai. 103. It seldom happened, even under the old practice, that an order directing the trial of a cause by a foreign jury was deemed necessary. See Patchin v. Sands, 10 Wend. 570. And under the Code an order directing a foreign jury to be summoned is even less necessary, as the Code allows the court or the parties to change the place of trial when there is reason to believe that an impartial trial cannot be had therein. See Code, §126. The practice as to foreign juries is now practically obsolete. Section 14. Challenges. a. In general. It frequently happens that some of the jurors summoned to try a cause are not qualified to decide the issues. Although all the jurors may possess the requisite legal qualifi- cations, there may be valid reasons why some of them should not serve as jurors in the particular case then to be tried. A TRIAL BY JURY. 10$ Challenged the array. juror may have certain fixed opinions that would render him unable to render an impartial verdict in certain classes of cases ; or the officer who summoned the jury may have been so preju- diced against a party to the action as to render it unsafe to pro- ceed to trial with the jury summoned by him. For these and similar reasons the law has given to the parties the right of chal- lenge. Challenges belong to one of two classes, viz. : Challenges to the array, or to the polls. In either case the challenges cannot be made until the jury box is full. King v. Edmonds, 4 Barn. & Aid. 471 ; BrunsMU v. Giles, 9 Bing. 13. o. Challenge to the array. Upon the appearance of a full jury, either party may interpose objections to all the jurors col- lectively, on account of some alleged partiality or misconduct on the part of the officer who summoned them, or on the part of the clerk. A challenge of this nature is termed a challenge to the array. Challenges to the array are almost obsolete in civil actions, as it rarely occurs that such challenges are necessary. It is not a cause of challenge to any panel or array of jurors in any cause, that the clerk of the county who drew them was a party, or interested in the cause, or was counsel or attorney for either party, or related to him. 2 R. S. 420 (437), § 56 ; Wake- man v. Sprague, 7 Cow. 720. But a challenge lies to the array, for any partiality or default in the clerk in selecting and arraying a jury. Gardner v. Turner, 9 Johns. 260 ; WaJceman v. Sprague, 7 Cow. 720 ; Pr ingle v. Huse, 1 id. 432. Thus, where the clerk drew out of the box containing the names of jurors, seventy-two names instead of thirty-six, and then selected thirty-six of those so drawn to be summoned by the sheriff, this was held a sufficient ground for a challenge to the array. Gardner v. Turner, 9 Johns. 260. Formerly, if a sheriff who was a party in a cause served the venire, it was a good ground of challenge to the array. Woods v. Rowan, 5 Johns. 133. But it is now provided by statute that it shall not be a good cause of challenge to ihe panel or to the array of jurors in any cause, that they were summoned by the sheriff who was a party, or interested in such cause, or related to either party therein, unless it be alleged in such challenge and be satisfactorily shown, that some of the jurors drawn by the 104 TRIAL BY JUEY. Challenge to the polls — Challenge for crime — Challenge to the favor. clerk were not summoned, and that such omission was intentional. 2 R. S. 420 (437), § 57. In penal actions for the recovery of any sum, it is not a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer is liable to pay taxes in any town or county which may be benefited by such recovery. 2 R. S. 420 (437), § 58. c. Challenge to the polls. A challenge to the polls is an ex- ception individually, to one or more of the jurors who have appeared. Challenges to the polls may be classified under the following heads: 1. Challenge propter defectum, or challenge for disquali- fication ; 2. Challenge propter affectum, or challenge to the favor; 3. Challenge proper delictum, or a challenge for crime. d. Challenge for disqualification. A challenge for disquali- fication is proper where the juror who has been summoned does not possess the qualifications which the law declares every juror shall possess. Thus a challenge for disqualification is proper where the juror has not sufficient freehold or other property, or is within the age of twenty-one.years, or above the age of sixty, or is an idiot or lunatic, or an alien, or a non-resident of the county. Any want of the qualifications required by law is a ground for this challenge. But a matter which merely exempts a person from serving 'on a jury, but does ncJt incapacitate him, can never be a cause of challenge. e. Challenge for crime. A challenge for crime is proper when for some act of the juror he has ceased to be in consideration of law a good and true man. Thus, when a party summoned as a juror has been convicted of an infamous crime, such as perjury, forgery, or the like, he may be challenged, and on proof of the fact, will be set aside. Co. Litt. 158. /. Challenge to the favor. It is a general rule of law that a juror must be indifferent between the parties, and if it appears probable that he is not indifferent, this may be made the sub- ject of challenge, either principal or to the favor, according to the degree of probability of his being biased. People v. Bodine, 1 Denio, 281. A principal cause of challenge to a juror carries with it prima facie, evident marks of suspicion, either of malice or favor, and is sufficient of itself to exclude the juror, without leaving any thing to the conscience or dis- TEIAL BY JURY. 105 Challenge to the fayor. cretion of triers or of the court. The challenge to the polls for favor is of the same nature with the principal challenge propter affectum, but of an inferior degree. The cause of chal- lenge to the favor may not, in the judgment of law, imply a dis- qualifying bias, but if the triers, upon hearing the evidence, find that the juror challenged is not altogether indifferent, it is their duty to reject him, for it is a rule of law, that the juror must stand indifferent as he stands unsworn. People v. Bodine, 1 Demo, 281 ; Cp. Litt. 157, b. A challenge for principal cause presents a question of law, while a challenge to the favor pre- sents a question of fact. The effect of these two species of chal- lenges is the same ; the only difference between them is the mode of trying them. Co. Litt. 158 ; 1 Cow. 439, note. The causes of challenge to the favor, according to Lord Coke, "are infinite." Co. Litt. 157, b. The grounds of challenge for principal cause being such as raise a legal presumption of bias must, on the other hand, be limited. Actions pending between the juror and the party challenging, which imply malice, ill-will, or revenge, as slander, assault and battery, or the like, are causes of principal challenge ; while all other actions between the juror and the party challenging are but to the favor. People v. Bodine, 1 Denio, 281 ; 1 Co. Litt. 157, b. Some of the grounds of principal challenge for bias are as follows : 1. That the juror is of kin to either party within the ninth degree (1 Denio, 438, note) ; or within any degree what- ever. Co. Litt. 157. 2. That there is an affinity or alliance by marriage between the juror and one of the parties, and that the affinity continues, or that issue of the marriage is still living ; Co. Litt. 157. 3. That the juror has an interest in the action direct or collateral. Wood v. Stoddard, 2 Johns. 194 ; Common- wealth v. Ryan, 5 Mass. 90 ; Hesketh v. BraddocJc, 3 Burr. 1847. 4. That the juror is interested in an action depending upon the same principles or evidence. 1 Denio, 438, note. 5. That the. juror is the tenant of either party. Hathaway v. Eelmer, 25 Barb. 29 ; Co. Litt. 157. 6. Or that he is in the em- ployment of either party. Co. Litt. 157. 7. That he has formed or expressed an absolute, unconditional, definite and settled opinion in relation to the merits of the action. People v. Path- bun, 21 Wend. 509 ; People v. Bodine, 1 Denio, 281 ; People v. Motion, 3 Lans. 224 ; Lowenberg v. People, 27 N. Y. (13 Smith) Yol. Ill — 14 * 106 TRIAL BY JUEY. Challenge to the favor. 336 ; Freeman v. People, 4 Denio, 9 ; People v. Honeyman, 3 id. 121 ; Durell v. Mosher, 8 Johns. 445 ; Cancemi v. People, 16 IS". Y. (2 Smith) 501. 8. That the juror has given a verdict before for the same cause ; or that he has given a verdict upon the same title or matter, though between other parties. Co. Litt. 157. While a direct or collateral interest in the result of the action is a good cause for principal challenge for bias, a remote interest, such as is common to every tax payer of a town or county, may not be a cause of challenge. Thus, the statutes provide, that in penal actions for the recovery of any sum, it shall not be a good cause of challenge to the jurors summoned, or to the officer summoning them, that such juror or officer is liable to pay taxes in any town or county which may be benefited by such recovery. 2 R. S. 420 (437), § 58. So an opinion as to the merits of the cause, if purely hypothetical, de- pending upon the truth or falsity of mere rumors or reports, or of accounts in newspapers, is not such an opinion as will dis- qualify a juror for principal cause. People v. Mallon, 3 Lans. 224 ; Durell v. Mosher, 8 Johns. 445 ; Ex parte Vermilyea, 6 Cow. 555. The rule is otherwise where the juror has formed his opinion, not from a mere loose rumor but from information derived from the party himself, or from those necessarily acquainted with the facts. Rogers v. Rogers, 14 Wend. 131 ; Ex parte Vermilyea, 6 Cow. 555. A mere impression which does not amount to an opinion is not a ground for principal challenge. People v. Sanchez, 18 How. 72 ; S. C, 4 Park. Cr. 535. But an absolute decided opinion, once formed, is a ground for princi- pal challenge for bias, although the juror may testify that his belief may be changed by evidence. Cancemi v. People, 16 N. Y. (2 Smith) 501. The following are among the grounds of challenge to the favor : That a party to the suit is a tenant of the juror. People v. Bodine, 1 Denio, 306 ; Hathaway v. Helmer, 25 Barb. 29. That the juror is indebted to the party. People v. Bodine, 1 Denio, 281. That the juror may become the debtor of the party, as where he ^$|ndprsed a note payable to one of the parties. Mechanics W S ^ armers 1 Bank v. Smith, 19 Johns. 115. That the juror is a stockholder in a bank where the bank is a party to the action. Milligan's Case, 6 C. H. Rec. 69. But see TRIAL BY JURY. 107 Mode of challenging. Purple v. Horton, 13 Wend. 9 (22). That the juror is a fellow- servant with a party to the suit. People v. Bodine, 1 Denio, 281 ; Co. Litt. 157, b. That the juror is a member of the same society or club as one of the parties. Purple v. Horton, 13 Wend. 9. That the juror is intimate with either party or has had a dis- pute with either party. Co. Litt. 157 ; Anonymous, 3 Salk. 81. That the juror has formed or expressed a hypothetical opinion re- specting the subject of the controversy. People v. Motion, 3 Lans. 224 ; People v. Bodine, 1 Denio, 281 ; Stout v. People, 4 Park. Cr. 71 ; Freeman v. People, 4 Denio, 9 ; People v. Honey- man, 3 id. 121 ; People v. Bodine, 1 id. 281. The illustrations above given are among the more common objections that may be raised to the competency of a particular juror in ordinary civil actions. It must be remembered, how- ever, that the causes of challenge to the favor are infinite, and are, in all cases, matters of fact to be determined by the triors. g. Mode of challenging. A challenge to the array or to the polls cannot be made before a full jury have appeared, and any challenge previously made will be irregular. King v. Edmonds, i 4 Barn. & Aid. 471. It is immaterial which party makes the first challenge, but the party who begins must finish all his chal- lenges before the other begins, or he will be precluded from making further challenges. 1 Cow. 439, note. See Co. Litt. 158, a. The challenge to the array must be in writing, but a challenge to the polls may be made orally. 1 Cow. 439, 441, note. In either case the ground of the challenge should be distinctly stated, otherwise the challenge is incomplete, and may be wholly disregarded by the court. It is not enough to state that the challenge is for principal cause, or for favor, merely. The cause of the challenge must be specified. Freeman v. People, 4 Denio, 9, 31 ; People v. Motion, 3 Lans. 224. The rule is the same whether the challenge is in writing or by parol. Mann v. Glover, 2 Green, 195. The challenge must be in such terms that the court can see, first, whether it is for principal cause or to the favor, and so determine by what forum it is to be tried ; and, secondly, whether the facts, if true, are sufficient to support such a challenge. Thus, if the challenging party does not deem the juror indifferent, he must state some facts or circumstances which, if true, will show either that the juror is positively and legally disqualified, or create a probability or suspicionlhat he 108 TRIAL BY JURY. Form of challenge to the array — Trial of challenge. is not, or may not be, impartial. In the former case the chal- lenge would be a principal one, triable by the court ; in the lat- ter, it would be to the favor and submitted to triers. Mann v. Glover, 2 Green, 195 ; People v. Mallon, 3 Lans. 224. Form of challenge to the array. {Title of cause.) And now, at this day, to wit {stating time and place), came as well the aforesaid plaintiff, as the aforesaid defendant, by their respective attorneys aforesaid, and the jurors of. the jury impan- eled in this cause being summoned, also came and hereupon the said {defendant) challenges the array of the said panel ; because he says that {here set forth the matter of challenge with certainty and precision), and this he is ready to verify. Wherefore he prays judgment, and that the said panel may be quashed. G. H., Attorney for Defendant. h. Trial, of challenge. An important change has been made by statute in relation to the mode of trying challenges. And in discussing the matter, the common-law rule will first be stated, and then the statute provision will be given. Challenges to the array are of two kinds : either principal or to the favor. The former must be tried by the court, and the latter by triors. Vanauken v. Beemer, 1 South. 364 ; Co. Litt. 156, 158. If the facts alleged in the challenge are denied, the court pro- ceeds to appoint two triors out of the panel, or perhaps any two persons not impaneled. Gardner v. Turner, 9 Johns. 260 ; Co. Litt. 158. If the triors pronounce the causes of challenge un- founded, the trial proceeds. If the facts are admitted, but are deemed insufficient, the court adjudges on them, and either quashes the array, or overrules the challenge. lb. If the array be quashed as to the sheriff, a new venire must be awarded to the coroner ; if quashed as to the coroner, then the venire is awarded to persons appointed by the court for that particular purpose, termed elisors, to whose array no challenge is allowed. Co. Litt. 158. If the array is not quashed the party may then make his challenges to the polls. HesTceth v. Brad- dock, 3 Burr. 1847 ; 1 Cow. 441, note. All challenges 'to the polls are either for principal cause or for favor. If the challenge is for disqualification or for crime, the challenge is for principal cause. But where the challenge is for bias, it may be for principal cause, or to the favor. As a general TRIAL BY JURY. 109 Trial of challenge. rule, a principal challenge to the polls is triable by the court, while a challenge to the favor is triable by triors. The rule is founded upon the principle that the principal challenge presents a question of law, while a challenge to the favor presents only a question of fact. If the challenge is for principal cause, and the facts on which the challenge rests are admitted, the question raised is purely a question of law, and the court has only to pronounce the effect of such facts ; but if the facts are disputed it is the proper course to submit them to triors. People v. Mather, 4 Wend. 229 ; Ex parte Vermilyea, 6 Cow. 555. But in all cases a challenge for principal cause may be tried by the court, unless one of the parties demand that it be tried by triors ; and when so tried by the court the decision is subject to the same rules in all respects as if made by triors. Ex parte Ver- milyea, 6 Cow. 555 ; People v. Mallon, 3 Lans. 224. See Sanchez v. The People, 22 N. Y. (8 Smith) 147. A challenge to the favor may be tried by the court with the consent of counsel ; and when the court acts as a trior upon a challenge to the favor, it will be assumed that he so acted by consent of the parties in the absence of all objections, or of a request to submit the question to triors. If the parties desire that the question of favor should be tried by triors, an objection should be made to its trial by the court at the time the chal- lenge is made. O'Brien v. People, 36 1ST. Y. (9 Tiff.) 276 ; S. C, 3 Abb. N. S. 368 ; 2 Trans. App. 5 ; People v. Mallon, 3 Lans. 224 ; People v. Mather, 4 Wend. 229 ; People v. Rathbun, 21 id. 509 (542) ; Stout v. People, 4 Park. Cr. 132. But in the absence of an express or implied consent to a trial of a ques- tion of favor by the court, the challenge to the favor must be determined by triors. Stout v. People, 4 Park. Cr. 132. These triors, in case the first man called be challenged, are two indifferent persons named by the court ; and if they try the juror and find him indifferent, he is sworn ; and he, with the two jurors, try the next ; and when another is found indifferent and sworn, the triors are superseded and the two thus first sworn on the jury try the rest. If, on the other hand, the two jurors first called take the box without challenge, they must try the rest. 1 Bla. Com. 363 ; Co.Litt. 158 ; MoGormick v. Brookfleld, 1 South. 69. The course of procedure here marked out, and this only, can be pursued. More than two triors, or more than two jurors, can in no case be sworn to try a challenge to a juror ; 110 TRIAL BY JURY. Trial of challenge. but in the particular case mentioned, one juror with the two triors may be sworn for this purpose. McCormicTc v. Brookfield, 1 South. 69. Before trying the challenge the following oath is administered to the triors : " You do each of you solemnly swear that you will well and truly try whether J. S. (the juror challenged) stands indifferent between the parties to this issue ; so help you God." The triors, being sworn, are instructed by the court in relation to the matters of law applicable to the duties about to be per- formed by them. Exceptions may be taken to any error in these instructions. People v. Bodine, 1 Denio, 281 ; Freeman v. Peo- ple, 4 id. 9. The juror challenged may then be examined under oath by the challenging party respecting the matters set forth as a ground of disqualification, and may also be cross-examined by the ad- verse party. See People v. Christie, 2 Abb. 256 ; S. C, 2 Park. Cr. 579 ; Pringle v. Huse, 1 Cow. 432. If from the evidence before them the triors are in doubt as to the impartiality of the juror it is their duty to find him not impartial. People v. Thorn, 4 C. H. Rec. 81 ; and see Freeman v. People, 4 Denio, 9. If the facts alleged as a ground of challenge are found untrue, the decision of the court or triors is final and is not subject to review. Sanchez v. The People, 22 N". Y. (8 Smith) 147 ; Costigan v. Ouyler, 21 N. Y. (7 Smith) 134 ; O'Brien v. The People, 36 N. Y. (9 Tiff.) 276 ; S. C, 3 Abb. N. S. 368 ; 2 Trans. App. 5. But where there is no conflict of evidence, the question is one of law, and, as the decision of the court, may be reviewed. Stout v. The People, 4 Park. Cr. 71 ; The People v. Motion, 3 Lans. 224. It is competent for either party to challenge first for principal cause ; and failing to sustain it, he may then challenge to the favor and submit the same evidence to the triors that had been given on the challenge for principal cause ; and the triors may upon the same evidence find the juror incompetent, because of prejudice or partiality. People v. Mallon, 3 Lans. 224 ; Carnal v. The People, 1 Park. Cr. 272. The foregoing common-law rules in relation to challenges of jurors were in force in this State prior to May 7, 1873. It was then provided by statute that "All challenges to jurors, both in civil and criminal cases, shall be tried and determined by the court only. Either party TRIAL BY JURY. Ill Peremptory challenge — Right to begin. may except to such, determination, and upon a writ of error or certiorari, the court may review any such decision the same as other questions arising upon the trial." Laws of 1873, ch. 427, § 1. "On the trial of all felonies and misdemeanors, the prose- cution shall be entitled to the same number of peremptory chal- lenges as are or may be by law given to the defense." lb., § 2. i. Peremptory challenge. Upon the trial of any issue of fact joined in a civil action, each party is entitled peremptorily to challenge two of the persons drawn as jurors. Laws of 1847, ch. 134. A peremptory challenge is a waiver of all prior challenges to the same juror. Freeman v. The People, 4 Denio, 9. Section 15. Right to begin. a. In general. The right to begin is a matter of great im-- portance in a trial by jury, as the party who begins has the right to make the closing address to the jury ; and this latter right, when exercised by a skillful advocate, is often the means of securing a verdict in favor of the party holding the affirmative of the issue, even in a doubtful cause, and notwithstanding the clear and impartial charge of the judge. Ashby v. Bates, 15 Mees. & Wels. 589 (594) ; Huntington v. Corikey, 33 Barb. 218. It is a general rule that the party upon whom the affirmative of the issue lies is entitled to begin. Huntington v. ConJcey, 33 Barb. 218 ; IAndsley v. European Petroleum Co., 41 How. 56 ; Hoxie v. Greene, 37 id. 97 ; Elwell v. Chamberlin, 31 N. Y. (4 Tiff.) 611. The affirmative of the issue must be understood to mean the affirmative in substance and not in form, and upon the whole record. Huntington v. Gorikey, 33 Barb. 218 ; Ashby v. Bates, 15 Mees. & Wels. 589 ; Oeach v. Ingall, 14 id. 95. The test by which to determine who has the right to begin is to be found in the answer to the question which party should have a verdict if no evidence be given. Huntington v. Qorikey, 33 Barb. 218. If it appears in answer to such question that the verdict ought to be given for one party, it follows that something must be done by the other party to prevent that consequence ; and he who has to give evidence to prevent the result from being against him, must begin. Oeach v. Ingall, 14 Mees. & Wels. 95 (100). The party having the right to begin must exercise it ; and on his failure to do so the court may compel him to open his case and produce his evidence. Slauson v. Englehart, 34 Barb. 112 TEIAL BY JURY. Right of plaintiff to begin — When defendant entitled. 198 ; Brandford v. Freeman, 5 Exch. 734 ; Coxhead v. Huish, 7 Carr. & Payne, 63. b. When plaintiff entitled to begin. In all cases where the damages sought to be recovered in the action are unliquidated, the plaintiff has the right to begin. Huntington v. Corikey, 33 Barb. 218. Thus, in all cases of slander^ libel and other actions where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant. Carter v. Jones, 6 Carr & Payne, 64 ; Young v. Highland, 9 Grratt. 16 ; Hecker v. Hopkins, 16 Abb. 301, note ; Littlejohn v. Greeley, 13 id. 41 ; Fry v. Bennett, 28 1ST. Y. (1 Tiff.) 324. See Harnett v. Johnson, 9 Carr. & Payne, 206 ; Chapman v. Bawson, 8 Q. B. 673. Whenever the plaintiff has any thing to prove, on the question of damages, or otherwise, he has the right to begin. Hunting- ton v. Conkey, 33 Barb. 218 ; Thurston v. Kennett, 22 N". H. (2 Fost.) 151 ; Belknap v. Wendell, 21 N. H. (1 Fost.) 175 ; Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254 ; Lexington Ins. Co. v. Paver, 16 Ohio, 324 ; Bowen v. Spears, 20 Ind. 146. But, in other cases, where the damages are liquidated, or de- pend upon mere calculation, as the casjting of interest, the party holding the affirmative of the issue has the right to begin ; and the affirmative in such cases will be with the party against whom a verdict must be given/provided no evidence were given on the trial. Huntington v. Conkey, 33 Barb. 218 ; Elwell v. Chamber- lin, 31 1ST. Y. (4 Tiff.) 611 ; Hoxie v. Greene, 37 How. 97 ; Geach v. Ingall, 14 Mees. & Wels. 95. c. When defendant entitled. The rules above given determine in effect the cases in which a defendant is entitled to begin, viz., where he holds the affirmative of the whole issue, and no evi- dence is necessary on the part of the plaintiff to entitle him to recover. lb. ; Lexington Ins. Co. v. Paver, 16 Ohio, 324. Thus, whenever the pleadings admit the plaintiff 's whole cause of action, and attempt to avoid it by new matter, the defendant has the right to begin and close. Thurston v. Kennett, 22 IS. H. (2 Fost.) 151 ; Ayerv. Austin, 6 Pick. 224. And so, if an answer admits the making and delivery of a promissory note, and sets up an affirmative defense, the affirmative is with the defendant, and he is entitled to open and close the case. Lindsley v. Euro- TRIAL BY JURY. 113 Error in granting or refusing request — Opening case. pean Petroleum Co., 41 How. 56; Hoxie v. Greene, 37 id. 97; Huntington v. Conkey, 33 Barb. 218. This rule applies when the sole defense to an action on con- tract is want of consideration {Hoxie v. Greene, 37 How. 97 ; Mills v. Oddy, 6 Carr. & Payne, 728) ; payment {Coxhead v. Huish, 7 id. 63 ; Smart v. Rayner, 6 id. 720) ; duress {Hoxie v. Greene, 37 How. 97) ; alteration {Barker v. Malcolm, 7 Carr. & Payne, 101) ; want of capacity to contract {Cannam v. Far- mer, 3 Exch. 698) ; want of capacity to sue {Hoxie v. Greene, 37 How. 97) ; non-joinder of necessary party {Fowler v. Coster, 3 Carr. & Payne, 463) ; usury {Huntington v. Conkey, 33 Barb. 218; Elwell v. Chamberlin, 31 K Y. [4 Tiff.] 611); counter- claim {Coxhead v. HuisTi, 7 Carr. &" Payne, 63 ; Bowen v. Spears, 20 Ind. 146), or any of these defenses combined (id. ; Hoxie v. Greene, 37 How. 97). In actions for unliquidated damages where the plaintiff is entitled to nominal damages, in case he should recover without proof of positive injury, a defendant setting up an affirmative defense will be entitled to begin, unless the counsel for the plain- tiff will undertake to prove substantial damages. Chapman v. Rawson, 8 Q. B. 673 ; City of Aurora v. Cobb, 21 Ind. 492. d. Error in granting or refusing request. The denial of the right to begin to the party entitled to it and claiming it at the proper time, is error for which a new trial will be granted ; unless the court can see clearly that no injury or injustice resulted from the erroneous decision. Huntington v. Conkey, 33 Barb. 218 ; Hoxie v. Greene, 37 How. 97 ; Lindsley v. European Petroleum Co., 41 id. 56 ; Fry v. Bennett, 28 K Y. (1 Tiff.) 324. It was intimated, however, in the case last cited that the ques- tion as to which party shall open and close the case should be regarded as one of practice, to be regulated by the discretion of the judge, and that his decision upon it is not a subject of excep- tion. Section 16. Opening case. a. In general. After a cause has been called on, and a full j ury has appeared, and challenges have been disposed of and the jury sworn, the cause is ready to proceed. The counsel for the plaintiff, or for the party entitled to begin, proceeds to open the case to the jury. The object of an opening is to state briefly the nature of the action, the substance of the pleadings, the points in issue, the Vol. Ill — 15 114 TRIAL BY JURY. Opening case. facts and circumstances of the case, and the substance of the evidence to be adduced in its support. Ayrault v. Chamberlain, 33 Barb. 229. The manner and general character of the opening by the coun- sel for either party is to a great extent under the control and within the discretion of the judge at the circuit, and except in rare cases of arbitrariness or abuse of that discretion the decision of the judge will be final. Ayrault v. Chamberlain, 33 Barb. 229. See Morris v. Wadsworth, 17 Wend. 103. Under the practice in the courts of this State, unlike the rule in the English courts, each party is confined to a legitimate and proper open- ing of his own case ; the plaintiff's counsel to a statement of his cause of action, and the defendant's counsel to a statement of his answer to the plaintiff's case and the evidence he proposes to give to sustain it. Elwell v. Chamberlin, 31 N. Y. (4 Tiff.) 611 ; Ayrault v. Chamberlain, 33 Barb. 229. In opening the case, counsel should not state facts which under the laws of evidence they could not be permitted to prove, nor facts which they are not in a condition to prove. Stevens v. Webb, 7 Carr. & Payne, 60. Neither should the counsel go to the other extreme and omit the general statement of evidence upon which they intend to rely to maintain their action or defense. The evidence may be stated somewhat fully, or at least so far as may be essential to give the jury a proper under- standing of the general course and theory of the prosecution or defense. But the fact that either party has failed to state in the opening of his case all the evidence upon which he relies, or which may be necessary to make his case, will not affect his right to intro- duce such evidence upon the trial, nor entitle the adverse party to judgment. Evidence pertinent to the issue cannot be excluded merely because it was not embraced in the case stated in the opening. Nearing v. Bell, 5 Hill, 291. Nor can the judge direct a verdict for' the plaintiff on the ground that the counsel for the defendant has in his opening failed to state a valid defense to the action ; nor can he dismiss the plaintiff ' s complaint on the ground that the counsel for the plaintiff has failed to state a cause of action in his opening. Sawyer v. Chambers, 43 Barb. 622 ; S. C, 44 id. 42 ; Stewart v. Hamilton, 3 Rob. 672 ; S. C, 28 How. 265 ; 18 Abb. 298. i It has been held that an admission made by the plaintiff's TRIAL BY JURY. 115 Opening case — By the plaintiff — By the defendant. counsel in his opening, which is fatal to his case, may entitle the defendant to a judgment of dismissal. Stewart v. Hamilton, 3 Rob. 672 ; S. C., 28 How. 265 ; 18 Abb. 298. But it may be doubted whether, in any case, an admission inadvertently made by a counsel in his opening, can be treated as evidence of the facts admitted, as against his client. Under the English practice the judge at a trial will not take the facts from the opening of the counsel on the opposite side. See Machell v. Ellis, 1 Carr. & Kirw. 682. b. By the plaintiff. Under the English practice the counsel for the plaintiff is required to include in his opening the facts in reply to any distinct answer to the action which appears on the record by way of plea or notice, without waiting to see whether such defenses could be proved or not. But, under the practice in this State, the counsel for the plain- tiff is neither required nor allowed to state to the jury in his opening the facts he expects to prove in reply to the defense set up in the answer, nor to anticipate the opening of the counsel for the defendant by giving the details of the defense. The counsel should state his cause of action, and the evidence he pro- poses to introduce to sustain it, and he may also state the nature of the defense if it appears upon the record ; but further than this he ought not to go. The judge at the circuit will not allow an opening by the plaintiff's counsel in respect to the defense except in an incidental way by a brief statement of its general character. Ayrault v. Chamberlain, 33 Barb. 229. See Elwell v. Chamberlin, 31 N. Y. (4 Tiff.) 611, 614. c. By the defendant. After the plaintiff has .put in his evi- dence and rested his case, the defendant may open his case to the jury by giving a statement of his answer to the plaintiff's case, and the evidence he proposes to give to sustain it. In such opening the counsel for the defendant should not comment in the way of summing up, after the English manner, upon the plain- tiff's evidence, any further than is essential to a proper under- standing by the jury of the defendant's evidence. Ayrault v. Chamberlain, 33 Barb. 229. See Goss v. Turner, 21 Vt. 437. Where the defendant holds the affirmative, and consequently ■has the right to begin, he will of course open the case to the jury in advance of the plaintiff. In opening his case it will be necessary for him to state the substance of the cause of action, the nature of the defense 116 TRIAL BY JUKY. Evidence. thereto, and the evidence he proposes to introduce in support of it. It is proper that he should state the exact issue raised by the pleadings, and the effect of the admissions made by the answer ; but under the foregoing principles it would be mani- festly improper for the defendant in opening his case to antici- pate the reply of the plaintiff to the affirmative defense. See Goss v. Turner, 21 Vt. 437. Section 17. Evidence. a. In general. It is to be presumed that the counsel, at least after the service of the notice of trial, have made all possible preparation to protect the interests of their clients. This prep- aration-relates to two different subjects. The first is to examine the law in relation to the action upon its merits, and also as to the admissibility of any evidence which is not clearly admissible within the general rules of evidence. So, it is also proper to examine such legal questions as may be properly raised by the matters disclosed by the answer. The duty of investigating all legal questions will, of course, devolve upon the attorney or counsel who is to try the cause ; and to a young lawyer nothing can be of greater service than to make a full and careful brief for the trial of every cause of any importance. No point of law and no class of evidence need be overlooked in the hurry of the trial if this is properly done. It is not necessary to make a for- mal brief in every case, but a methodical and diligent examina- tion of the points of law, and of the details of the evidence in a cause, are nearly indispensable to a certainty of success, or to a thorough and exhaustive trial on the merits. It may be conven- ient to state those points upon which a brief should be explicit. A brief should consist of three parts : 1. An abstract of the pleadings ; 2. A statement of the case ; and, 3. A statement of the proofs. A more particular and formal brief may contain an enumeration of several important matters : 1. The names of the parties, their residence and occupation, the character in which they sue or defend, and the reason why they prosecute or resist the action ; 2. An abridgment of the pleadings, showing what facts are in issue, and what facts are admitted ; 3. A regular chronological and methodical statement of all the material facts ; 4. A summary of the points or questions in issue, and of the -proof which is to support such issues, mentioning specially the names of the witnesses by whom the facts are to be proved, or, if it is to be established by written evidence, an abstract of such TRIAL BY JURY. 117 Evidence — Burden of proof. evidence ; 5. The. moral character of the witnesses should be mentioned : whether the moral character is good or bad, whether they are naturally timid or over zealous, whether firm or waver- ing ; 6. If known, the evidence which will be introduced by the opposite party should be stated, and such facts or witnesses as are adapted to oppose, rebut, explain or answer it by new mat- ter, should be mentioned. The facts should be so stated that it will be convenient at any moment to find the desired information which has been noted. Brevity is desirable, but, when the facts are material, they cannot be too numerous, and so when the argument is pertinent and weighty it cannot be too extended. 7. A full and careful statement of the legal principles involved, with a reference to the authorities which sustain them, is always an indispensable part of a lawyer' s duty in the preparation of a cause for trial or for argument. It is not to be understood that it is recommended that a very formal and particular brief should be made for the trial of every action, since, in some cases, the facts may be few and the legal rules undisputed. But, when an inexperienced practitioner is required to meet counsel of long experience, the propriety of a thorough preparation will prob- ably be fully appreciated, even by those who rely quite confi- dently upon fine, natural abilities. It will not be attempted to consider in this connection the general rules of evidence, a brief outline of which has already been given in a previous volume. See vol. 2, pp. 638-732. An attempt will, however, be made to point out, as briefly as may be, the rules relating to the mode of introducing evidence upon the trial, and the practice -relating to the examination of witnesses. It should be borne in mind that the evidence in all cases is governed or materially influenced by the pleadings, and that it is generally necessary to prove every material fact that is put in issue, and no more. b. Burden of proof . The question upon whom the burden of proof rests, in the first instance, is usually determined by the pleadings. It is a general rule that the burden of proof rests upon him who has the affirmative of the issue. 1 Greenl. Ev. , § 74. By the affirmative must be understood the affirmative in substance and not in mere form. Hence, a plaintiff must, as a general rule, prove all the material allegations in his complaint, if they are denied; and the burden of proof is said to rest on him ; but if the defendant admits the facts alleged in the complaint, and 118 TRIAL BY JURY. Burden of proof. - pleads and relies upon other facts as a bar to the action, then the burden of proof is thrown upon the defendant, and he must prove the facts pleaded in bar. Hoss v. Gould, 5 Me. (5 Greenl.) 204. As the determination of the two questions, who has the right to begin, and upon whom is the burden of proof, depends upon the determination of the same question, the rules laid down in a pre- vious section may be profitably consulted. See ante, p. Ill to 113. One of the surest tests for ascertaining upon which side the affirmative really lies is to consider which party would be suc- cessful if no evidence at all were given ; or, what amoimts to the same thing, to examine whether, if the particular allegation to be proved were struck out of the answer or other pleading, there would or would not be a defense to the action, or an answer to the previous pleading. The party against whom a verdict must necessarily be rendered, if no evidence be given, holdsiin all cases the affirmative of the issue, and upon him rests the burden of proof, unless in the few exceptional cases which will be hereafter noticed. Elwell v. Chamberlin, 31 N. Y. (4 Tiff.) 611. Thus in an action for the recovery of money loaned, if the answer contains a general denial of the complaint, the burden of proof will evidently be on the plaintiff. But if there is no denial of the loan of the money, or of the allegations in the com- plaint, but the defendant interposes an affirmative defense alone, in which he alleges payment of the money loaned, the burden of proof is on the defendant to show payment because the answer admits the loan, and the only question to be tried is, whether it has been repaid, and on that issue the defendant holds the affirmative. 'So, where an action is brought upon a promissory note which is set out in the complaint, and the answer admits the making of the' note, but sets up the defense of usury, or any other similar plea, by way of confession and avoidance, the plaintiff will be entitled, without giving any evi- dence, to a verdict for the amount of the note, unless the defend- ant establishes his defense, and the affirmative of the issue, and the burden of proof, is clearly upon the defendant. Elwell v. Chamberlin, 31 N. Y. (4 Tiff.) 611 ; Hoxie v. Greene, 37 How. 97 ; Huntington v. Corikey, 33 Barb. 218. But where the de- fendant does not deny the complaint, but sets up the statute of limitations as a defense, the burden of proving that the cause of TRIAL BY JURY. 119 Burden of proof. action is not barred by the statute, is cast upon the plaintiff. Porter v. Kimball, 3 Lans. 332 ; 2 Greenl. Ev., § 431. There are cases in which both parties hold the affirmative as to the issues to be tried, as where the plaintiff sues for the re- covery of money loaned, as in the case before stated, and the defendant interposes a general denial, and also a claim for a set- off. In such cases the plaintiff would be bound to prove his case ; and if he does so and then rests, the defendant will be required to establish his set-off by evidence, or it will not be allowed. In determining who is bound to introduce evidence to sustain his case, it is important to recollect that there are cases in which some legal presumption stands for proof until it is rebutted ; and that, although the issue may, in form, cast the affirmative on a party, yet this legal presumption is still sufficient proof until the presumption is rebutted by evidence on the other side. Whenever the law presumes in favor of the affirmative, it lies on the party who denies the fact to prove the negative. In an action upon a bill of exchange or a promissory note, if the defendant answers that there was no consideration for it, he must prove that fact, for the law presumes a good consideration. Lacey v. Forrester, 2 C M. & R. 59 ; 5 Tyrw. 567. So, where the negative involves a criminal omission, by the party, and, consequently, where the law, upon general princi- ples, presumes his innocence, the affirmative is presumed ; and therefore, where an action was brought against a person for putting a dangerous commodity on board of a vessel, as freight, without giving notice thereof to the captain or other person on board, whereby a loss ensued, it was held that the plaintiff was bound to prove that the notice was not given. Williams v. East India Co., 3 East, 192. It is a general rule that a party cannot be required to prove a negative, but this rule is not without exceptions. Thus where an action is brought to recover damages for personal injuries arising from* the alleged negligence of another, it is the duty of the plaintiff to prove, not only that the injury was caused by the defendant's negligence, but also that he, the plaintiff, did not. contribute to the injury by any negligence on his own part.. This proof, in some form, constitutes a part of the plaintiff's; case-; and there is no presumption of negligence against either party. Circumstances may show, without further evidence, 120 TKIAL BY JURY. Burden of proof — Competency of witnesses. that there was no contributing negligence on the part of the injured party; but, in the absence of such circumstances, there must be direct evidence of the fact. Warner v. New York Cen- tral R. R. Co., 44 N. Y. (5 Hand) 465 ; Button v. Hudson River R. R. Co., 18 N. Y. (4 Smith) 248 ; Holbrook v. Utica & Schenectady R. R. Co., 12 N". Y. (2 Kern.) 236 ; Parrottv. Knick- erbocker Ice Co., 2 Sweeny, 93 ; Curtis v. Rochester & Syracuse R. R. Co., 18 N". Y. (4 Smith) 534. See Murphy v. Deane, 101 Mass. 455. So, in an action to recover a penalty for selling spirituous liquors without a license, it will be sufficient for the plaintiff to prove the sale o'f such liquors, without proving that the defendant had no license. That evidence is a matter of defense, and the defendant will be bound to show a valid license or he will be liable for the penalty. Potter v. Deyo, 19 Wend. 361 ; Mayor, etc., of N. T. v. Mason, 1 Abb. 344; S. C, 4 E. D. Smith, 142. In an action against a defendant who sets up a bankrupt's discharge, the plaintiff is bound to prove any matter which he claims invalidates it, since it is presumed to be valid. Sherwood v. Mitchell, 4 Denio, 435. The defendant would, however, be bound to prove the discharge itself, like any other affirmative matter ; but when proved, it would be presumed valid. When a party holding the affirmative of an issue introduces evidence which, if uncontradicted, proves the facts alleged by him, the burden of proof is said to be changed to the other side. But it must not be understood that the party bound to prove a fact is thereby relieved from this obligation ; or that the other party, to entitle him to a verdict, is required to satisfy the jury that the facts were not as alleged by his adversary. The party holding the affirmative is still bound to satisfy the jury affirma- tively of the truth of the facts alleged by him, or he will not be entitled to a verdict. Lamb v. Camden & Amboy R. R., 46 N". Y. (1 Sick.) 271. See Caldwell v. New Jersey Steamboat Co., 47 N. Y. (2 Sick.) 282,292. c. Competency of witnesses. The old rules relating to the competency of witnesses may be found in any work on evidence. The changes made by the Code and late statutes in relation thereto are as follows : It is provided by section 398 of the Code that " no person offered as a witness in any action or proceeding in any court, or before any officer acting judicially, shall be ex- cluded by reason of his interest in the event of the action or pro- TRIAL BY JURY. 121 Burden of proof. ceeding, or because he is a party thereto, except as provided in the next following section of this act." The exception is as follows : " No party to an action or pro- ceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or inter- ested person derives any interest or title, by assignment or other- wise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a per- son at the time of such examination deceased, insane, or lunatic, against the executor, administrator,, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or com- munication as to which, any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, or as to which the testi- mony of such deceased person or lunatic shall be given in evi- dence. Code, § 399. Evidence of the testimony of a deceased person, upon a for- mer trial, is inadmissible where, if living, he would not be a com- petent witness under this section (399). Eaton v. Alger, 47 N. Y. (2 Sick.) 345. The person through whom a party to an action derives title is not competent as a witness to prove transactions with a deceased person, as against the grantee of the latter ; for, although grantees are not named, they are within the reason of the act, and the word ' ' assignee ' ' will include them. Mattoon v. Young, 45 N. Y. (6 Hand) 696. It is also provided by statute that "in any trial or inquiry in any suit, action or proceeding in any court, or before any person having, by law or consent of parties, authority to examine wit- nesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness on behalf of any party to such suit, action or proceeding." Laws of 1867, ch. 887, §1. "Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding (except to prove the Vox ttt 122 TEIAL BY JURY. Burden of proof. fact of marriage in case of bigamy), or in any action or proceed- ing instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation." Laws of 1867, ch. 887, § 2. "No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage." Laws of 1867, ch. 887, § 3. It would seem that the legislature had in effect made a husband or wife competent witnesses, the one for or against the other in all cases where they are parties to an action, by an amendment to the Code in 1860. See Matteson v. N. T. Central R. R. Co., 62 Barb. 364 ; 35 1ST. Y. (8 Tiff.) 487. Under the provisions of this statute, in an action between husband and wife, either is a witness in his or her behalf against the other, save in the cases excepted in that act. Southwick v. Southwiclc, 49 T$. Y. (4 Sick.) 510; 1 Sweeny, 47. The act applies to all trials had in actions which were pending when it took effect ; and under it the husband or wife may testify to conversations and communications had prior to the taking effect of the act, unless such . conversations or communications were confidential. lb. See Minier v. Minier, 4 Lans. 421. No physician, surgeon, minister of the gospel, or priest of any denomination is, in general, a competent witness in respect to any information acquired by him in a strictly professional capacity. 2 R. S. 406 (422), §§ 72, 73. See People v. Gates, 13 Wend. 312 ; Matteson v. N. Y. Central R. R. Co., 62 Barb. 364. The Code provides also that if any original pleading or paper is lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original. Code, § 422. The statutes in relation to the competency of witnesses, so far as the same may be affected by religious belief, declare that every person believing in the existence of a Supreme Being who will punish false swearing, shall be admitted to be sworn if other- wise competent ; and no person shall be required to declare his belief in the existence of a Supreme Being, or that he will punish false swearing, or his belief or disbelief of any other matter, as a requisite to his admission to be sworn or to testify in any case ; but the belief or disbelief of every person offered as a witness may be proved by other and competent testimony. 2 R. S. 408 ( 425 )> §§ 87, 88. The constitution also declares that no person TRIAL BY JURY. 123 Burden of proof — View — Plaintiff's evidence. shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief. Const., art. 1, § 3. But while such matters cannot affect the competency of a witness, they may affect his credibility. Staiibro v. HopTcins, 28 Barb. 265. The provisions of the statute above cited are not to be con- strued to prevent any court before whom an infant or a person apparently of weak intellect shall be produced as a witness, from examining such person, to ascertain his capacity, and the extent of his religious and other knowledge ; nor are they to be construed to prevent a court from inquiring of any person what are the peculiar ceremonies observed by him in swearing, which he deems most obligatory. 2 R. S. 408 (425), § 89. d. View. The Revised Statutes provide that whenever, in cer- tain actions relating to real property, the court in which the action is pending shall be satisfied that a survey of any premises in the possession of either party, or of any boundary line be- tween the parties, or between the lands of ,either of them and the lands of other persons, is necessary or expedient, to enable either party to declare, plead or prepare for trial, or for any other proceeding in such action, it may by rule of court, upon the application of either party, order that such party have leave to make such survey. 2 R. S. 341 (352), § 13. The order must specify the premises or boundary lines to be surveyed by a description as definite as may be, and a copy of the 'same must be served, previous to such entry, on the owner or occupant of the premises upon which it may be necessary to enter to make such survey. 2 R. S. 341 (352), § 14. The party obtaining such order, his necessary surveyors, ser- vants and agents, may enter upon any premises necessary for the purpose of making such survey, and may there make the same after having served the rule as before mentioned. No per- son acting under such order will be liable to any action of tres- pass or other action, for so doing ; but every such person will be liable to an action on the case for any unnecessary injury caused by him. 2 R. S. 341 (352), § 15. The statute also provides that no writ of view shall hereafter be allowed in any action for the recovery of real estate, or the possession thereof, except when otherwise specially provided for ; but any judge of the court in which the action is pending, and any other officer who may be authorized to perform the ' 124 TRIAL BY JURY. View — Plaintiff's evidence. duties of such, judge at chambers, shall have power, whenever he shall think proper to do so, to order the plaintiff to deliver to the defendant a particular description of the premises de- manded, in the same manner and subject to the same provisions, as in cases where bills of particulars may be required in personal actions. 2 R. S. 341 (352), § 16. Under the English practice, whenever it appears to the court in actions of waste, trespass quare clausum f regit, and other actions, that it is proper and necessary that the jurors who are to try the issue, for the better understanding of the evidence, should have a view of the lands or place in question, the court or judge will grant a rule or order for such view. The jury, or a part of them, are then taken by the sheriff to the place in ques- tion, at some convenient time before the trial, and two persons appointed by the court, frequently the attorneys in the action, thereupon point out to them the matters involved in the contro- versy. Tidd's Pr. 795 ; 1 Archb. 371. This practice was also in force in this State under the old sys- tem, but seems to have fallen into disuse under the restrictions placed upon it by statute. See Grah. Pr. 880, 881. e. Plaintiff' 's evidence. The party entitled to begin, having opened his case to the jury, proceeds to call his witnesses in its support. If not objected to by the adverse party and set aside as incompetent, the witnesses, as they are called, are sworn by the clerk in one of the modes prescribed by statute, and examined in chief by the party in whose behalf they are summoned. They may be then cross-examined by the defendant, if the plaintiff is the party entitled to begin, and re-examined, if necessary, by the plaintiff. Regularly, the party entitled to begin must exhaust all the testimony in support of his side of the issue before the opposite party is heard ; and he can, in strictness, introduce no evidence afterward, save in reply. The judge may, however, allow a de- parture from this rule, but the party cannot claim that he shall do so as a matter of right. Ford v. Niles, 1 Hill, 300 ; Caldwell v. New Jersey \ Steamboat Co., 47 N. Y. (2 Sick.) 282 ; Meyer v. Goedel, 31 How. 456 ; Anthony v. Smith, 4 Bosw. 503 ; Shepard v. Potter, 4 Hill, 202 ; Hastings v. Palmer, 20 Wend. 225 ; Leland v. Bennett, 5 Hill, 286 ; Bomertze v. East River Na- tional Bank, 2 Sweeny. 82 ; 49 K Y. (4 Sick.) 577. TRIAL BY JURY. 125 Defendant's evidence — Evidence in reply — Rebutting evidence — General practice. f. Defendant 's evidence. After the plaintiff has made a prima facie case and rested, the defendant states his case to the jury and calls his witnesses. Each witness called is examined by the defendant and may then be cross-examined by the plaintiff, and re-examined by the defendant, in the same manner, and subject to the same rules as above stated in respect to the witnesses for the plaintiff. After the plaintiff has made a prima facie case and rested, the defendant may not attempt to disprove or rebut any fact which the plaintiff has proved, but may introduce evidence to estab- lish an independent substantive fact, showing a discharge of the claim which the plaintiff has proved against him. Upon the issue thus raised the defendant takes the affirmative, and may properly rest after establishing a prima facie defense, without anticipating what answer the plaintiff will make to it. See Qoss v. Turner, 21 Yt. 437. g. Evidence in reply. After the defendant has rested, the plaintiff may introduce evidence in denial, or by way of avoid- ance of the evidence given by the defendant ; but, as has been already shown, he cannot, as a matter of right, introduce further evidence in support. of the case originally made by him, even though the instruments of evidence were, through no fault of his own, unavailable at the time when he rested. Ford v. Niles, 1 Hill, 300. 7i. Rebutting evidence. If the evidence on behalf of the plain- tiff in reply was in avoidance of the defendant' s evidence, the defendant may introduce new evidence rebutting that given in reply. Upon the principle above stated the defendant will not be entitled, as a matter of right, to introduce further evidence in support of his defense, as originally made, but will be restricted to such evidence as goes to disprove the reply. Rebutting evidence is such as contradicts, modifies, explains or varies the evidence of the other party. Romertze v. East River National Ban7c, 2 Sweeny, 82 ; 49 N. Y. (4 Sick.) 577. i. General practice. It is a general rule that the time, manner and order of receiving evidence upon the trial is a mattei 1 of dis- cretion with the judge at circuit, and is not reviewable on appeal, lb. ; CaldwelU. New Jersey Steamboat Co., 47 1ST. Y. (2 Sick.) 282 ; Bedell v. Powell, 13 Barb. 183 ; Seeley v Chittenden, 4 How. 265. Thus, after the plaintiff has rested, it is in the discretion of the 126 TRIAL BY JURY. General practice — Examination of witnesses, rules for. court whether to allow the case to be re-opened and further wit- nesses called. Solomon v. Central Park, North & East River R. R. Co., 1 Sweeny, 298; Henry v. Lowell, 16 Barb. 268; Peckham v. Leary, 6 Duer, 494. See letter e, ante, 124. The same rule applies to the defense. Anthony v. Smith, 4 Bosw. 503 ; Williams v. Hayes, 20 K. Y. (6 Smith) 58 ; Burger v. White, 2 Bosw. 92. But if, after a party has rested, the judge recalls one of his witnesses, and, by examining him, elicits evi- dence unfavorable to the party, the case will be thereby re- opened, and the party may then proceed to introduce further evidence in support of his case as an absolute right. Shepard v. Potter, 4 Hill, 202. It is within the discretion of the judge at the trial to allow a witness to be recalled, and to explain, qualify or contradict his former statements, and his decision cannot be reviewed. Wil- liams v. Sargeant, 46 K". Y. (1 Sick.) 481. The refusal of permis- sion to recall a witness is equally discretionary. Caldwell v. Hew Jersey Steamboat Co., 4!7 N. Y. (2 Sick.) 282. The court may also, in its discretion, limit the number of wit- nesses to be examined to a particular point collateral to the issues to be tried, and the exercise of that discretion cannot be reviewed upon an appeal from the judgment. Spear v. Myers, 6 Barb. 445 ; Anthony v. Smith, 4 Bosw. 503 ; Nolton v. Moses, 3 Barb. 31 ; People v. Cook, 8 N". Y. (4 Seld.) 67, 77. But that discretion should not be exercised except in a case clearly calling for interposition ; and where a plaintiff has called and examined one witness to establish a fact, and the defendant has examined one witness who contradicts the first, a refusal of the judge to permit the defendant to examine another witness will be a ground for setting aside the verdict. Ward v. Washington Ins. Co., 6 Bosw. 229. The case must be a very peculiar one, which will justify the court in rejecting evidence, because the fact which it tends to prove is sufficiently proved already. Eakin v. Brown, 1 E. D. Smith, 36. A party should not, as a general rule, be limited as to the number of witnesses to be examined as to the material facts at issue. lb. ; Hubble v. Osborn, 31 Ind. 249. j. Examination of witnesses, rules for. While it may be possible to give certain general rules syhich will, in all cases determine the. competency or admissibility of the evidence which a party may desire to adduce upon the trial in support of his cause, it is obviously impossible to give any rule or set of rules, / TRIAL BY JURY. 127 Examination of witnesses, rules* for. which will unfailingly point out the best mode of adducing such evidence, when it is to be taken from the lips of living witnesses. The mode of conducting the examination of witnesses is a sub- ject beyond the reach of arbitrary rules. Success in this branch of practice depends upon the practical knowledge derived from experience and the close study of human nature, rather than from the theoretical knowledge derived from books. Much valuable information may, however, be derived from the rules for the examination of witnesses as given by the text- writers, as for example, the rules of Quintilian to be found in Best on Evi- dence, the "Golden Rules" of David Paul Brown, republished in the American edition of Ram on Facts, and the advice of Mr. Cox, in his work entitled "The Advocate, his training, practice, rights and duties," which may also be found in an abridged form in the appendix to Ram on Facts. Many of the practical suggestions here given are derived from these sources. There are many things to be considered in determining the best mode of conducting the examination of each individual witness. The mental characteristics of the witness, as whether timid or over confident, intelligent or stupid ; the peculiar relations that may exist between the witness and the parties ; and the probable or possible interest which the witness may have in the event of the action, should all be considered in determining the mode of conducting his examination. It is obvious that the advocate should not pursue the same mode of examining a witness, known to be hostile to his client, that he would pursue in examining one known to be favorable to his cause. Neither should his treatment of the timid witness be the same as his treatment of the bold and over confident. A timid witness should never, on his direct examination, be exam- ined as to a material point in the case before his courage is restored,, as, no matter how conscientious the witness, and how well informed as to the facts, his evidence, when given under the influence of fear, will be confused and contradictory. A few unimportant and preliminary questions asked in a friendly con- versational tone will usually re-assure the witness, and obviate the necessity of explaining away contradictions in his state- ments. Whether the same thoughtf illness should be exercised in cross-examining a timid witness for the adverse party, would 128 TRIAL BY JURY. Examination of witnesses, rules for. of course depend on the nature and effect of the evidence given on the examination in chief. The opposite course should be pursued with the over-con- fident and over-zealous witness, who volunteers evidence for which he has not been asked. Witnesses of this class should be examined with great gravity and ceremony, and if this fails to repress their assurance, they should be at once requested, kindly but peremptorily, to answer simply the questions asked. If, however, the over-confident witness is called by the adverse party, it may be advisable in his cross-examination to encourage his weakness until his excessive zeal leads into statements absurdly extravagant. If a party's own witness is found to be unfriendly, he should be dismissed from the stand as speedily as possible. If his answers are unfavorable, he is still presumed to be giving such a construction to the facts he states as are most favorable to the party calling him, and therefore every unnecessary answer drawn out is a direct injury. His testimony cannot be impeached or even indirectly assailed, further than to show by other witnesses the truth of the facts, in respect to which he has been guilty ■ of misstatements. If, on the other hand, the hostile witness is called by the adverse party, his hostility should be stimulated, until it is plainly apparent to the most stupid of the jury. The reason for the rule above given suggests the impropriety of calling a witness when the adverse party will be compelled to call him. A disregard of the rule thus suggested places the party at the mercy of' the witness, and enables the adverse party to profit by every unfavorable answer, and at the same time to weaken by a cross-examination the effect of such favorable testi- mony as may be elicited. Another universal rule, relating to the examination of a wit- ness, prohibits the asking of any question without a sufficient reason, and also the asking of any question which, if objected to as irrelevant, cannot in some way be connected with .the case. As a rule, the party whom the court will not sustain will not be sustained by the jury. An objection should never be taken to a question asked by the adverse party, unless there is valid reason therefor ; neither should an improper question which may damage your client' s case be allowed to pass without objection, except for a similar good reason. TRIAL BY JURY. 129 Examination of witnesses, rules for — Direct examination. -The general manner and deportment of the examining counsel must, of course, be determined by circumstances. He should never allow his temper to be ruffled by the stupidity of a wit- ness, nor by evasive or unfavorable answers. The jury often weigh the importance of evidence by its effect on counsel. The rules of court provide that on trials of issues of fact one counsel only on each side shall examine or cross-examine a wit- ness ; and that during such examination the examining counsel shall stand. They further provide that the testimony, if taken down in writing, shall be written by some person other than the ex^ amining counsel. But the justice who holds the court may other- wise order or dispense with this requirement. Rule 37, Sup. Ct. These rules, however, are not very strictly observed in practice. 7c. Direct examination. When a witness has been regularly sworn he is first examined by the party who produces him, and this examination is called the direct examination, i or ex- amination in chief. The adverse party is then at liberty to examine the witness, and this examination is termed a cross- examination. After the conclusion of the cross-examination, the party calling the witness may examine him again, the examina- tion in this case being called the re-examination. The office of a direct examination, or examination in chief, is to lay before the court and jury the whole of the evidence of the witness that is relevant and material. The mode in which this evidence shall be drawn out on the examination is, to a great degree, within the discretion of the court. The first essential to the proper examination of a witness is, that the examining counsel should have a clear knowledge of the leading facts to be' proved by the witness. For the purpose of avoiding all possibility of omitting an important fact, the counsel should provide in advance a synopsis of the leading facts to be proved by the witness. If the witness is ordinarily intelligent, after a few preliminary questions designed to bring him to the main point in issue, he should be permitted to narrate the facts in his own way, with such occasional questions only as will tend to render his narra- tive clear and connected. As a general rule leading questions, or such as suggest the answer expected, will not be allowed on the direct examination. This rule is based on the supposition that the witness is favorable to the party who calls him, and is accordingly relaxed whenever it clearly appears that the witness Vol. in. — 17 130 TEIAL BY JURY. Direct examination — Cross-examination. is hostile, or that a more searching mode of examining him is necessary to elicit the truth. Williams v. Eldridge, 1 Hill, 249 ; Clarke v. Saffery, 1 Ryan & M. 126 ; Regina v. Chapman, 8 Carr. & Payne, 558. Leading questions are permitted on a direct examination when an omission in the witness' s testimony is evidently caused by a want of recollection, which a sugges- tion may assist. Cheeney v. Arnold, 18 Barb. 434. Whether or not a leading question may be put to a witness is a matter of discretion with the judge at the trial, and the allowance or exclusion of leading questions has ceased to be considered a matter to be reviewed on appeal. Black v. Camden & Amboy R. R. & Trans. Co., 45 Barb. 40 ; Walker v. Dunspaug?i, 20 N. Y. (6 Smith) 170 ; Downs v. N. Y. Central R. R. Co., 47 K Y. (2 Sick.) 83 ; Budlong v. Van Nostrand, 24 Barb. 25 ; Cheeney v. Arnold, 18 id. 434. A party having a witness on the stand may be called upon by his adversary to state what he proposes to prove by the wit- ness, and in that case he must state it so far as to show its relevancy. Beal v. Finch, 11 N". Y. (1 Kern.) 128 ; S. C, 9 How. 385. Thus, where a conversation between persons is offered in evidence, it is the duty of the party offering it to disclose how it may be material. Trustees of First Baptist Church in Brook- lyn^. Brooklyn Fire Ins. Co., 23 How. 448. I. Cross-examination. The right to cross-examine a witness commences when the examination in chief is concluded. If a witness is sworn and gives any evidence, no matter how slight, he is a witness for all purposes, and may be cross-examined ; or, if a witness is sworn and would be competent to give evi- dence for the party calling him, it is said by some text writers that the adverse party will be entitled to cross-examine him, although he has not been examined in chief. But, if a witness is called by a party merely for the purpose of producing a writ- ten instrument belonging to the party, which is to be proved by other witnesses, he need not be sworn,- and, if not sworn, will not be subject to cross-examination. So, if a counsel calls a wit- ness by mistake, and discovers the mistake before he puts a question to him, the witness, though sworn, will not be subject to cross-examination. So where a witness has been asked only an immaterial question, and his evidence is stopped by the court, the other party has no right to cross-examine him. After a witness has been examined in chief, the adverse party TRIAL BY JURY. 131 Cross-examiaation. is at liberty to cross-examine him. The power and opportunity of cross-examination, it will be recollected, is one of the princi- pal tests which the law has devised for the ascertainment of truth, and is indeed a most efficacious test. By this means the situation of the witness, with respect to the parties and the sub- ject of litigation — his interests, his motives, his inclination and prejudices, his means of obtaining correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used these means, his powers of discerning facts in the first instance, and his capacity for retaining and describing them — are fully investigated and ascertained, and submitted to the consideration of the court or jury, who have an opportunity of observing the manner and demeanor of the witness, circum- stances which are often of as high importance as the answers themselves. It is not easy for a witness, who is subjected to this test, to impose upon the court ; for, however artful the fabrica- tion of the falsehood may be, it cannot embrace all the circum- stances to which the cross examination maybe extended; the fraud is, therefore, open to detection for want of consistency be- tween that which has been invented, and that which the witness must either represent according to the truth for want of previous preparation, or misrepresent according to his own immediate invention. In the latter case, the imposition must obviously be very liable to detection, so difficult is it to invent extempora- neously, and with a rapidity equal to that with which a series of questions is proposed, in the face of a court of justice, and in the hearing of a listening and attentive multitude, a fiction consistent with itself and the other evidence in the case. The purpose of a cross-examination is either to impugn the credit of a witness or to get him to explain or give a color to what he has already stated in his examination in chief, so as to render it less unfavorable to the party cross-examining. A wit- ness may be cross-examined for the purpose of showing that he has no great respect for the moral obligation of the oath he has taken {Staribro v. HopMns, 28 Barb. 265) ; or to show that, how- ever clearly he may design to speak the truth, his means of knowledge upon the subject of his evidence were so limited that he may possibly have been deceived in what he asserted in his examination- in chief; or to show that he is interested in the event of the action, for although interest would not disqualify him from testifying, it would be a question whether it affected 132 TRIAL BY JURY. Gross-examination. his credit ; or to show that he has been arrested and punished for offenses, or otherwise so degraded that no dependence can with safety be placed npon his testimony, or to impeach his veracity by showing that he has, at other times, made declara- tions by parol or in writing, or done acts inconsistent with the evidence he has given upon his examination. But, in this latter case, the examining counsel will not be allowed to impeach the testimony of the witness, by proving his former declarations or acts to the contrary, unless the witness has first been cross- examined particularly as to his having made such declarations or done such acts. See Romertze v. East River National Bank, 2 Sweeny, 82 ; Sloan v. New York Central R.R. Co., 45 1ST. Y. (6 Hand) 125 ; Lee v. Chadsey, 2 Keyes, 543 ; 3 id. 225. This subject will be more fnlly explained hereafter when treating of impeaching witnesses. The credibility of a witness is compounded of his knowledge of the facts he testifies, his disinterestedness, his integrity, his veracity, and his being bound to speak the truth by such oath as he deems obligatory upon his conscience. If he be deceived in the facts, no dependence of course can be placed in his testimony, however unimpeachable his character may be for integrity and veracity. But if a witness can give the substance of a conversation in relation to the matter in issue, his testimony is not to be excluded because he cannot give all the conversation which took place at the same time in relation to other matters. Pope v. MacMas Water Power Co., 52 Me. 535. Where there is a doubt, therefore, whether the evidence given by a witness be not founded on some misconception, it is the duty of the counsel who cross-examines him to question as to the sources of his knowledge, his reasons for believing the fact to be as he has stated, his reasons for recollecting it, the circum- stances attending its occurrence, whether it was light or dark, whether few or many persons or none at all were present, whether it was late or early in the day, and whether he was near or dis- tant at the time it occurred, and the like, so that the court and jury may be able to judge of the degree of confidence they may repose in the witness's testimony. ^ But, valuable as the right of cross-examination is, it is some- times a dangerous instrument in the hands of an unskillful or inexperienced person. If, by any unfortunate or unskillful ques- tion, put on cross-examination, a fact be extracted or elicited TRIAL BY JURY. 133 Cross-examination. which would not have been evidence upon an examination in chief, it then becomes evidence against the party cross-examin- ing. But a witness is not allowed voluntarily to obtrude inad- missible evidence, and if he does so, it is not to be considered as evidence in the action, and the court and jury should give it no consideration whatever. This a just and most important rule ; for a fraudulent and subtle witness will sometimes endeavor to baffle and annoy his cross-examiner for" the purpose of deterring him from pursuing his course by introducing into his answers matters which are foreign to the question put, and which are unfavorable to the cross-examining party. With regard to the relevancy to the matters in issue of ques- tions which may be put on cross-examination, it is to be observed that considerable latitude is allowed in this respect, where the tendency of the questions is to affect the credit of the witness. A witness may be asked questions affecting his own character, and consequently his credit, though such questions have no v rela- tion to the matters in issue. But a witness cannot be cross- examined as to any fact wholly irrelevant to the matters in issue, and which would in no way affect his credit, and still less can he be cross-examined as to such facts for the purpose of contra- dicting him by other evidence, and in this manner to discredit his testimony. Carpenter v. Ward, 30 K. Y. (3 Tiff.) 243. See Oandolfo v. Appleton, 40 K Y. (1 Hand) 533. And if a wit- ness answers such an irrelevant question before it is disallowed or withdrawn, evidence cannot afterward be admitted to contra- dict his testimony on the collateral matter. Plato v. JReynolds, 27 N. Y. (13 Smith) 586. The principle of the rule which excludes an inquiry' into such collateral matters is that it would render an inquiry which ought to be simple, and confined to the matter in issue, intoler- ably complicated and prolix, by causing it to branch out into an indefinite number of collateral issues. Witnesses are frequently cross-examined in relation to writ- ings, such as deeds, contracts, letters, papers and documents ; and the examination may be conducted with a view either to establish in evidence the contents of the writing as material to the cause, or to test the memory or the credit of the witness. When the object of the cross-examination is to establish the writing in evidence, the cross-examining counsel has no right to represent or state the contents of the writing in the form of a 134 TRIAL BY JUEY. Cross-examination. question, and then ask the witness whether he wrote such paper or writing to any person, with such contents, or contents to the like effect, without first showing the writing to the witness, and asking him whether he wrote the letter or paper. The Queen's Case, 2 Brod. & Bing. 284^315 ; Speyer v. Stern, 2 Sweeny, 516. If the paper is shown to the witness, and he admits that he wrote it, the whole paper will be made evidence when intro- duced at the proper time. So, again, on cross-examination, it is permitted to show a witness a part of a letter, or one or more lines, and not the whole of the letter, and then ask him if he wrote that part of it. lb. But, if the witness does not state whether he did or did not write what is shown him, he cannot be cross-examined as to the contents of that letter, because the letter itself is the best evidence. lb. If the witness admits he wrote the letter, he cannot be cross- examined as to the contents by means of questions put to him by the cross-examining counsel, but the letter itself must be read, to show whether it contains such statements as are embodied in the question. lb. If the letter or paper is admitted by the witness, it is some- times a question when it shall be introduced in evidence. The general rule is, that it is to be read as the evidence of the cross- examining counsel as part of his evidence, in his turn, after he shall have opened his case : but if the counsel who is cross-ex- amining suggests to the court that he wishes to have the letter or paper read immediately, in order that he may, after the contents of that paper shall have been made known to the court, found certain questions upon such contents, which could not well or effectually be done without reading it, that becomes an excepted case, and for the convenient administration of justice, it is per- mitted to be read at the suggestion of the counsel ; but consider- ing it, however, as a part of the evidence of the counsel propos- ing it, and subject to all the consequences of having it considered as a part of his evidence. lb. On cross-examination counsel are not permitted to ask a wit- ness whether he has made representations of a particular nature, and not specifying in his question whether the question refers to representations in writings or in words. lb. In such a case the opposite counsel have a right to interpose and ask the court to direct the cross-examining counsel, to ask whether the represen- tation was in writing or was spoken words. lb. TRIAL BY JURY. 135 Cross-examination. But it may be properly asked, ,on cross-examination, whether the witness has said such a thing, for that implies that it was words spoken and not written. lb. The instances in which evidence is rejected when it is sought to show the contents of a writing, by examining a witness, is founded upon the principle, that the paper is the best evidence of its contents. But it frequently happens that the. cross- examination of a witness, as to what he has before said or written on the subject of inquiry, is material only as a test to try his memory and his credit. Such evidence is usually admissible, for no other purpose than to try the credit or the capacity of the witness. What a witness stated on a former occasion may be very material evi- dence to contradict him, or to impeach his testimony, but can rarely be evidence of the fact stated ; and it is a remarkable cir- cumstance that in the course of inquiry in the case which occa- sioned so much discussion on the subject, the question was never directly raised, whether a cross-examination as to something written by the witness, for the purpose, not of proving any fact in the cause, but simply of trying the credit or ability of the witness, was subject to the same strict rules as governed an examination for proving material facts ; and whether the witness might not be cross-examined as to what he had written, without, producing the writing, where, although not proved to be lost, it was not in the ^possession of the examining party. But it has been decided in the English courts, that, upon a cross-examina- tion, a witness cannot, even for the purpose of discrediting him, be asked as to the contents of a written paper, which is neither produced, nor its absence accounted for. Macdonnell v. Evans, 11 C. B. (2 J. Scott) 930. See Hollingham v. Head, 4 C. B. (J. Scott) N. S. 388. In Bellinger v. People, 8 Wend. 595, a letter in the handwriting of the witness was shown to him, and he was then asked: "Did you write : that letter in answer to a letter charging you with forgery? "■ And it was held that the ques- tion was inadmissible for any purpose, inasmuch as it was an attempt to get at the contents of a written document, which, for any thing that appeared, might have been produced. This question must be deemed settled, so far as this State is con- cerned, by numerous adjudications ; and it may be laid down asa settled rule, that, where, on a cross-examination, a witness is asked whether he has been convicted of a specified crime, and an objeo 136 TRIAL BY JURY. Cross-examination. tion is taken to the question, the evidence will be excluded, on the ground that the record is the best evidence of the matter. Newcomo v. Oriswold, 24 1ST. Y. (10 Smith) 298 ; RatTibun v. Ross, 46 Barb. 127 ; Tifft v. Moor, 59 id. 619. The same rule applies to a question whether a witness has been indicted for any- alleged offense. Lee v. Chadsey, 2 Keyes, 543 ; S. C, 3 id. 225 ; Peck v. Yorks, 47 Barb. 131. The proper proof of the fact in the latter case is the indictment, or a certified copy of it. lb. But this rule is based solely on the ground that the fact is sus- ceptible of proof of a higher degree than parol evidence, and the rule fails when the reason therefor ceases to exist. Thus, it is competent to ask a witness on cross-examination, with a view to impair his credibility, whether he has been in jail or State prison, and how much of his life he has passed in such places, as the question relates to a fact of which the witness must have knowledge, and does not involve questions of jurisdiction and proceedings of a court of which the witness may not be com- petent to speak. Real v. The People, 42 1ST. Y. (3 Hand) 270. But where a question is put to a witness, asking him whether he has not made certain specified statements in an affidavit not produced, the evidence may be properly excluded, on the ground that the affidavit is the best evidence upon that subject. New- comb v. Griswold, 24 N. Y. (10 Smith) 298. A party having produced a document for the purposes of cross-examination, is not bound to read it before he comes to his own side of the cause, although he may have shown it to the witness and have cross-examined him upon it. Speyer v. Stem, 2 Sweeny, 516. And if a party on cross-examination obtains proof of a document, the opposite side has no right to see the paper, for the purpose of re-examining the witness as to the paper being in the handwriting of the party whose handwriting is sworn to. If the cross-examining counsel merely produces a paper, and asks the witness whether it is in his handwriting, that does not entitle the other side to see it ; but if he proceeds to found any question on the document, the opposite counsel has a right to see it ; and if upon a writing being put into the wit- ness's hand for the purpose of cross-examination, the cross- examination wholly fails, the adverse counsel is not entitled to look at the paper. When a book is put into the hands of a witness to refresh his recollections, and questions are asked upon it on the cross- TRIAL BY JURY. 137 Cross-examination. examination, the book ia not thereby made evidence for the party producing it, and against the party cross-examining ; though when a book is so produced, the party against whom it is produced may use it as evidence in his own favor. Payne v. Ibbotson, 3 Hurlst. & Norm. 960. Where a witness has been examined as to entries in a book, the adverse party cannot cross-examine as to other entries which have not been used, without putting them in as evidence. So where, upon the examination in chief of a witness, a valid objection has been taken to the admission of illegal or incom- petent evidence, a cross-examination as to the same matter, by the objecting party, will not waive the previous valid objection. Simpson v. Watrus, 3 Hill, 619 ; Worrall v. Parmelee, 1 N. Y. (1 Comst.) 519 ; Oakley v. Sears, 2 Rob. 440 ; Duff v. Lyon, 1 E. D. Smith, 536. A court has power to restrain an abuse of the right of cross- examination, and to prevent an improper or vexatious delay in the progress of a trial ; and where a party attempts, by frivolous and impertinent inquiries, to retard the course of justice, and needlessly occupy time, the court may correct the abuse by refusing to permit the party to continue the examination. It is the duty of the court to exercise that power, whenever the ends of justice clearly require its interposition. But it should be exercised only in such cases. Peck v. Richmond, 2 E. D. Smith, 380 ; Plato v. Kelly, 16 Abb. 188. So the court in which a cause is tried may, in the exercise of its discretion, exclude, on the cross-examination, disparaging questions not relevant to the issue, though put for "the avowed purpose of impairing the general credit of the witness ; and this may~be done on the objection of the party, without putting the witness to his claim of privilege. In the exercise of this dis- cretion the court may allow such questions to be asked, when there is reason to believe that such course will tend to promote the ends of justice ; but they may properly be excluded, when a disparaging course of examination seems unjust. Great West- ern Turnpike Co. v. Loomis, 32 N". Y- (5 Tiff.) 127 ; Brandon v. People, 42 BT. Y. (3 Hand) 266 ; Oreton v. Smith, 33 N. Y. (6 Tiff.) 245 ; La Beau v. People 34 N. Y. (7 Tiff.) 223. The time when a witness shall be cross-examined is also in the discretion of the court. It is usually done immediately after the examination in chief is closed ; but it may be delayed by the Vol. III. — 18 138 TRIAL BY JUBY. Cross-examination. court to any stage of the cause before the cause is finally sub- mitted. There ought, however, to be some good cause shown before the ordinary course is abandoned, and the exceptional practice adopted. The general rule is, that the court will require counsel to avail themselves of the opportunity of a cross- examination before the witness leaves the stand, unless for some good reason the court should allow them the privilege, at a subsequent stage of the trial. Sheffield v. Rochester & Syra- cuse R. R. Co., 21 Barb. 339. So where a witness has been exam • ined and cross-examined by the several counsel of the parties, it is within the discretion of the court to allow or refuse to allow the witness to be recalled by the cross-examining counsel, for the purpose of laying a foundation for his impeachment. Romertze v. East River National Bank, 2 Sweeny, 82. For the purpose of laying a foundation to impeach a witness, it is the duty of the impeaching party to interrogate him ; that is, call his atten- tion to the subject, and that must be done upon his cross-exam- ination, and cannot aferward be done except by the permission of the court in the .exercise of its discretion. The rule which requires an examination in chief to exhaust a witness is equally applicable to a cross-examination. lb. It has been held by the old court of errors that if a witness has been examined in chief by one party, and dies before his cross-examination, the evidence taken on the direct examination cannot be rejected, but is to be taken as a part of the evidence in the cause. Forrest v. Kissam, 7 Hill, 463. This decision cannot, however, be regarded as authority in the light of more recent decisions. The rule has been laid down by the court of appeals, that where a witness has been examined in chief by one party, and the adverse party has been deprived of his right of cross-examination by the sudden illness or death of the witness, or other cause, without the fault of, or beyond the control of, the cross-examining party, the evidence given on the direct examina- tion must be struck out, and that it is error to suffer it to go to the jury. The People v. Cole, 43 N". Y. (4 Hand) 508 ; affirming S. C, 2 Lans. 370. So, in all cases, where the opportunity to cross-examine is lost by reason of the misconduct or fault of the witness, or of the party calling him, his evidence will be struck out. Forrest v. Kissam, 7 Hill, 463. TRIAL BY JURY. 139 Re-examination — Impeaching witness. m. Re-examination. After a witness has been cross-examined he may be re-examined by the party who called him ; and upon such re-examination he may be examined as to all matters upon which he has been cross-examined, thus giving him an oppor- tunity for explaining any new facts which have thus come out. Counsel have a right, on such re-examination, to ask all such questions as may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they are in themselves doubtful ; and also to ascertain the motive by which the witness was induced to use those expressions. But he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. Thus, where the cross-examination of a witness is limited to a particular subject of a conversation had by him, the re-exami- nation will be limited to the matter inquired about on the cross- examination, and the whole conversation cannot be required. Oreaton v. Smith, 1 Daly, 380 ; S. C. affirmed, 33 N. Y. (6 Tiff.) 245. See Union Bank v. Mott, 39 Barb. 180. As has already been stated a witness cannot obtrude evidence on cross-examination which he could not have been permitted to give on an examination in chief ; but if counsel voluntarily cross- examine as to inadmissible matter, the opposite counsel is en- titled to re-examine upon it. Blewett v. Tregonning, 3 Ad. & Ell; 554 ; Oreville v. Chapman, 5 Ad. & Ell. 1ST. S. 731. m. Impeaching witness. There are several modes of impeach- ing witnesses, each of which will be briefly noticed in its order. And first it may be premised generally that the credit of a wit- ness may be impeached either by cross-examination, or by general evidence affecting his credit, or by evidence that he has before said or done that which is inconsistent with his evidence on the trial ; or, lastly, by contrary evidence as to the facts themselves. There are numerous matters as to which a witness may be cross-examined for the purpose of impeaching his credit. But there are limits beyond which a party is not permitted to go ; and, therefore, on cross-examination, a witness cannot be examined as to what he has said at other times in relation to a fact at issue in the action, where he has not been examined as to such fact by the party calling him ; and the matters inquired about \ 140 TEIAL BY JURY. Impeaching witness. are not such, as could legally affect his credibility. Bearss v. Copley, 10 H". Y. (6 Seld.) 93. In cross-examining a witness, for the purpose of affecting his credit, courts are usually quite liberal toward the cross-examin- ing counsel. But where the sole object of the cross-examination is the impeachment of the witness, and the matters inquired about are collateral and not pertinent to the matters in issue, the extent to which such cross-examination shall extend is entirely discretionary with the court. Allen v. Bodine, 6 Barb. 383 ; La Beau v. People, 34 N. Y. (7 Tiff.) 223 ; Heal v. People, 42 1ST. Y. (3 Hand) 270. And it is in the discretion of the court to interpose and protect a witness against any inquiries not relevant to the issues to be tried, and having no object in view but the impeach- ment of the witness. Great Western Turnpike Co. v. Loomis, 32 1ST. Y. (5 Tiff.) 127 ; Varona v. Socarras, 8 Abb. 302. And the rule is conclusively settled that a witness cannot be cross-examined as to any fact or matter which is collateral or irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, with the intent thereby to discredit his testimony. Plato v. Reynolds, 27 N.Y. (13 Smith) 586 ; Oandolfo v. Appleton, 40 K Y. (1 Hand) 533 ; Nation v. People, 6 Park. Cr. 258. It is also well settled that the credit of a witness can be im- peached by evidence as to general character only, and not by evidence as to particular facts not relevant to the issue, for this would cause the inquiry, which ought to be simple and confined to the matters in issue, to branch out into an indefinite number of issues. Newcomb v. Griswold, 24 N. Y. (10 Smith) 298 ; Heal v. People, 42 N". Y. (3 Hand) 270 ; Corning v. Corning, 6 1ST. Y. (2 Seld. ) 97 ; Jackson v. Lewis, 13 Johns. 504. The characters, not only of the witnesses in the principal cause, but of every one of the- impeaching collateral witnesses, might be impeached by separate charges, and loaded with such an accu- mulated burden of collateral proof that the administration of justice would become impracticable. Besides this, no man could come prepared to defend himself against charges which might thus be brought against him without previous notice; and, though every man may be supposed capable of defending his general character, he cannot be prepared to defend himself against particular charges, of which he has had no notice. Before one witness is permitted to speak of the general char- TRIAL BY JURY. 141 Impeaching witness. acter of another, it must be proved that the former has a proper knowledge of that character. In one case {Curtis v. Fay, 37 Barb. 64) the plaintiff called a witness, named Pritchard, to speak of the character of a witness named Jones. Pritchard did not, of himself, know any thing about Jones' reputation. All he could testify on the subject of reputation was what some person at Genoa, whom he did not know, told him it was. This was held to be insufficient, and the court said : ' ' An impeaching or sustaining witness is not to speak of the reputation unless he knows it, and such knowledge must be founded upon an acquaintance and intercourse with the neighbors and acquaintances of the individual whose character is in question, and that intercourse must be of some length of time, sufficient at least to enable him to gather the general esti- mation in which he is held in the community where he resides." The character of a witness may be impeached by persons in whose neighborhood the attacked witness had resided until within four years prior to the trial, notwithstanding such witness had then removed to a place fourteen miles distant from that neighborhood, where he had since resided, and the impeaching witnesses did not know the character borne by the attacked wit- ness at the latter place. Sleeper v. Van Middlesworth, 4 Denio, 43 1 . The character of a witness may also be impeached by witnesses who have known the party impeached in former years, but have known nothing of him for eight or ten years prior to the trial. Graham v. Ohrystal, 2 Keyes, 21 ; S. C, 37 How. 279. The principle that the existence of a person, a personal relation, or state of things, once established by proof, is presumed to con- tinue the same until the contrary is shown, applies within rea- sonable limits to the character of a witness proved to have once sustained a bad reputation for truth and veracity. Sleeper v. Van Middlesworth, 4 Denio, 431 ; Graham v. Chrystal, 2 Keyes, 21 ; S. C, 37 How. 279 ; People v. Haynes, 38 id. 369 ; S. C, 55 Barb. 450. The law does not presume that a person of mature age, whose general character has been notoriously bad up to within a recent period, has reformed so as to have acquired an unimpeachable reputation since that time. Reformation may be shown in answer to the attack, but the law will not presume it in advance. Ratlibun v. Boss, 46 Barb. 127. Slight acquaint- ance at any remote period of time will not be sufficient on the part of a sustaining witness to counteract the effect of evidence 142 TEIAL BY JURY. Impeaching witness. thoroughly impeaching a witness. Wilmot v. Richardson, 6 Duer, 328. The proper inquiry as to the character of the witness must be as to his general reputation where he is best known. It is not enough that the impeaching or the sustaining witnesses can state what "others say," for those others may be few in number, and their acquaintance with the witness may be extremely limited. Ordinarily, the impeaching or sustaining witness ought to come from the neighborhood of the person whose character is in ques- tion. A person is not permitted to manufacture evidence for the purpose of impeaching witnesses. Thus, where a person visits a distant town in which he is unacquainted, for the purpose of ascertaining the character of a witness, and for the purpose of subpoenaing impeaching witnesses against him, he will not be permitted to testify as to the result of his inquiries, nor to give his views as to the character of the witness whose credit is in question. Douglass v. fousey, 2 Wend. 352. In the impeachment of witnesses, it is general character alone that is in question ; and, therefore, specific acts of immorality on the part of a witness cannot be given in evidence to impair his credibility. Corning v. Coming, 6 N. Y. (2 Seld.) 97 ; Lee v. Chadsey, 2 Keyes, 543 ; S. C, 3 id. 225 ; La Beau v. People, 6 Park. Cr. 371 ; Varona v. Soearras, 8 Abb. 302 ; Greaton v. Smith, 1 Daly, 380. Petit larceny is not a felony, and, therefore, a conviction for that offense does not destroy the competency of a witness ; but the record of conviction may be introduced for the purpose of affecting the credit of a witness who has been convicted of that offense. Carpenter v. Nixon, 5 Hill, 260 ; Shay v. People, 22 K Y. (8 Smith) 317 ; People v. Rawson, 61 Barb. 619. Interest does not render a witness incompetent, but it may affect his credit, and, therefore, it may be shown by a witness, on cross-examination, that he is the real party in interest, and that a transfer of his interest to the plaintiff was a mere sham. Hoyt v. Lynch, 2 Sandf. 328. When a party to the action is a witness, he may be impeached in the same manner as any other witness. Varona v. Soearras, 8 Abb. 302. See Central Na- tional Bank of New TorJc v. Arthur, 2 Sweeny, 194. It has been held, that merely proving that the general char- acter of a witness is bad is not enough to effectually impeach TRIAL BY JURY. 143 Impeaching witness. him, when the impeaching witness is not asked whether he would believe the other witness on oath. Gilbert v. Sheldon, 13 Barb. 623. To show general bad character is immaterial ; the party must go further and prove that the character of the witness is bad as to truth and veracity, or must show, by the impeaching witness, that he would not believe the other on oath. Gilbert v. Sheldon, 13 Barb. 623. In the case last cited, .it was not even shown that the general moral character of the witness was bad. But in a subsequent case it has been held that after impeach- ing witnesses are shown to be acquainted with the general moral character of the person whose credit is assailed, and they declare it to be bad, the question of credit is then for the jury, under proper comments from the court, without any inquiry of the discrediting witnesses as to whether they would believe . him under oath. Wright v. Paige, 36 Barb. 438 ; S. C. affirmed, 3 Keyes, 581 ; 3 Trans. App. 134. The almost invariable practice, however, of asking the im- peaching witness whether he would believe the other on oath, is not to be disregarded in practice, and a neglect or refusal to put the question implies a doubt whether the impeaching witness would declare against the credit of the witness, so far as to swear that he was not to be believed under oath. In these cases " the true object to be effected is, to prove the witness's general char- acter for truth to be bad. His general character in other respects is of no consequence. All experience shows, that the general characters of many men are bad, in the common acceptation of the word, while their veracity is unimpeachable. Indeed, most men term that man' s general character bad who has some one cardinal vice, although in other respects he may be irreproacha- ble. In short, proof of general bad character, as that term is generally understood and used in society, does not necessarily and legally prove the fact that the witness' s character for veracity is bad ; and, therefore, it is immaterial evidence where the party avows his intention to stop with that question. All the ele- mentary writers, in their formula of queries to the impeaching witness, indicate most clearly and decidedly, that further ques- tions must be put in order to render the impeachment effectual." Per Shankland, J., in Gilbert v. Sheldon, 13 Barb. 626, 627. See Wright v. Paige, 3 Keyes, 531 ; S. C, 3 Trans. App. 134. And it is proper to remark here, that where it is sought to im- peach a witness on account of his bad character, and the wit- 144 TRIAL BY JURY. Impeaching witness. nesses are called for that purpose, who testify that they are acquainted with the general character of the witness whose credit is in question, they may be asked whether they would be- lieve him on oath notwithstanding they disclaim all knowledge of the character of the witness for truth and veracity. Johnson v. People, 3 Hill, 178. See Hume v. Scott, 3 A. K. Marsh. 260. Where it is sought to impeach a witness on the ground that he has made statements, out of court; which are contrary to what he has sworn on the triajl, such proof may be made by any com- petent witness who heard his previous statements. And where such previous statements were made on oath as a witness, any person who was present in court, and heard the testimony of the witness, is as competent to testify what he swore to as the judge who presided at the trial, or as counsel who took minutes of the evidence. Grimm v. Hamel, 2 Hilt. 434 ; TooTcer v. Gormer, id. 71. Written notes or minutes of the evidence may be more relia- ble, and, therefore, a jury or court might attach more credit to them than to a statement from mere memory, if any conflict existed between them. But before the written or printed state- ment of testimony taken on a former trial can be read in evidence, it must be proved that the paper to be read from contains a cor- rect and true minute of the evidence. OaTcley v. Sears, 2 Rob. 440. Although it appears .that a witness has sworn differently upon the same point on a former occasion, he is not to be pronounced incompetent by the judge, and his evidence stricken out and wholly excluded from consideration, as though he had been con- victed of a crime, rendering him incompetent to testify as a wit- ness; but his testimony must remain in the case, to be con- sidered by the jury, in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having jurisdiction to grant new trials in cases of verdicts against evidence. Dunn v. People, 29 1ST. Y. (2 Tiff.) 523 ; Warren v. Haight, 62 Barb. 490. See Lee v. Chadsey, 2 Keyes, 543 ; S. C, 3 id. 225; Tnguanzo v. Salomon, 3 Daly, 153. A witness, or a party who is a witness, is- not bound to state what he swore to on a former trial, since his statements might be used against him, in a prosecution for perjury, if there was a contradiction between the two statements. Pickard v. Collins, 23 Barb. 444. So, if the witness has made a contradictory state- TRIAL BY JURY. 145 Impeaching witness. ment in writing, as, for instance, in a letter, it may be used for •the purpose of contradicting him. On the subject of relevancy, it has been long settled, that a witness may be asked whether, on some former occasions, he has not given a different and contradictory representation of the same subject. If the witness answers in the affirmative, the question and its answer of course affects his credit, whether the subject-matter of the answer be relevant or irrelevant to the matters in issue ; if he answers in the negative, and the subject of the answer be irrele- vant to the matters in issue, the answer is conclusive, and evi- dence cannot be given to contradict the witness ; but if the subject of the answer be relevant to the matters in issue, then evidence may be given to show that the witness has on a former occasion given a different representation of the subject ; and the inquiry is made in order to lay a foundation for proof of con- tradictory statements. Carpenter v. Ward, 30 N. Y. (3 Tiff.) 243 ; Sloan v. N. Y. Central B. B. Co., 45 N. Y. (6 Hand) 125 ; PatcMn v. Astor Mutual Ins. Co., 13' K Y. (3 Kern.) 268 ; Gandolfo v. Appleton, 40 N. Y. (1 Hand) 533. To entitle the examining counsel to show a discrepancy between a statement made by the witness on a former trial, and another made on the present trial, for the purpose of impeaching the credibility of the witness, it must appear that the testimony related to a point material to the issue on trial, or to a fact brought out on the examination of the adverse counsel. Car- penter v. Ward, 30 N". Y. (3 Tiff.) 243. And where it is desired to impeach a witness by proving that he has made statements out of court in conflict with his evidence in court upon a material question in the case, it is necessary, in order to lay the founda- tion for contradiction, to ask the witness specifically whether he has made such statements. Sloan v. New TorTc Central B. B. Co., 45 N. Y. (6 Hand) 125. The usual and most accurate mode of examining the contradicting witness is to ask the precise question put to the principal witness. Otherwise, hearsay evi- dence, not strictly contradictory, might be introduced to the injury of the parties, and in violation of legal rales. The prac- tice upon this subject must be to some extent under the control and discretion of the court. It is important that the jury should understand that such evidence is collateral and not evidence in chief ; and the witness sought thus to be impeached should have Vol. III. — 19 146 TEIAL BY JURY. Impeaching witness. an opportunity of making explanation, in order that it may be seen whether there is a serious conflict, or only a misunderstand-- ing or misrepresentation ; and for the purpose of eliciting the real truth the court may vary the strict course of examination. lb. Where a witness has made a written sworn statement of facts, which contradicts what he has since sworn to as a witness on a trial, such sworn statement may be put in evidence to contradict his evidence and to impeach him, without first calling his atten- tion to such statement, and interrogating him in relation to it. Clapp v. Wilson, 5 Denio, 285 ; Romertze v. East River National Bank, 49 1J". Y. (4 Sick.) 577. The written instruments thus introduced to impeach a witness are not made evidence by merely 'producing them and proving their execution ; but to render them evidence in the cause they must be read, or the reading must be expressly or impliedly waived. Clapp v. Wilson, 5 Denio, 285. It is only where a witness has stated facts differently from what he swears that he can be contradicted ; and, therefore, it is not competent to show that a witness has -previously expressed an opinion contradictory to his present opinion or statement. Holmes v. Anderson, 18 Barb. 420 ; Elton v. LarJcins, 5 Carr. & Payne, 385. This rule, however, does not seem to be without exceptions. See Patchin v. Astor Mutual Ins. Co., 13 N. Y. (3 Kern.) 268. If, on being interrogated, the witness admits that he has made statements contrary to what he has- just sworn, proof on the other side becomes unnecessary, and an opportunity is afforded to the witness of giving such reasons, explanations or exculpa- tions of his conduct, if there be any, as the circumstances may furnish ; but, if the witness denies the making of the statement, and the matter is not collateral to the cause, witnesses may be called to contradict him. But it is not enough in such a case to ask the witness the general question whether he has ever said so and so. He must be asked as to the time, place and person involved in the supposed contradiction, or some other circumstance sufficient to point out the particular occasion. Pendleton v. Empire Stone Dressing Co., 19 JS". Y. (5 Smith) 13; Budlong v. Van JVostrand, 24 Barb. 25 ; Sprague v. Cadwell, 12 id. 516 ; Palmer v. Haight, 2 id. 210. If the witness neither directly denies nor admits the act or TKIAL BY JURY. 147 Impeaching witness. declaration, as when he merely says he does not recollect ; or if he gives any other indirect answer not amounting to an admis- sion, it is competent for the adverse party to prove the affirma- tive, for otherwise the witness might, in every such case, exclude evidence of what he had said or done, by answering that he did not remember. If the witness declines to answer on account of the tendency of the question to criminate him, the adverse party is still at lib- erty to adduce the same proof. And the possibility that the witness may, on that ground, decline to answer, affords no suf- ficient reason for not giving him the opportunity of answering, with a view to explain the circumstances and to exculpate him- self. So strict is the rule in relation to the examination of a witness, as to contradictory statements, that a witness whose testimony has been taken conditionally cannot be impeached on the trial by proving that, subsequent to such conditional examination, he had made statements inconsistent with his testimony, or had said that what he had sworn to was false. Before such evidence can be given the witness must be interrogated in relation to it. Stacy v. Graham, 14 N. Y. (4 Kern.) 492. See Romertze v. East River National Bank, 2 Sweeny, 82. And, if a court allows a witness to be impeached by such a contradiction, before he has been in- terrogated, it will be error, and the error will not be cured by afterward recalling the witness and permitting him to explain his testimony. Sprague v. , Oadwell, 12 Barb. 516. Such an explanation would not, or at least might not, in all cases rein- state the witness to the same standing with the jury as he would have in case he had been permitted to make the explanation be- fore being contradicted. An explanation made afterward might be said to be forced from the witness which otherwise would appear to be frank and ingenudus. The party intending to impeach a witness by showing state- ments made by him, inconsistent with his testimony on the ex- amination in chief, should be careful to lay the proper founda- tion therefor on the cross-examination, as, after the witness has left the stand, it will be entirely within the discretion of the - court to permit, or refuse to permit, the cross-examining counsel to recall the witness for this purpose. Romertze v. East River National Bank, 2 Sweeny, 82. It is always competent to show that a witness is hostile to the 148 TRIAL BY JUEY. Impeaching witness. party against whom he is called ; that he has threatened revenge, or that a quarrel exists between them. A jury would scruti- nize more closely and doubtingly the evidence of a hostile than that of an indifferent or a friendly witness. Hence, it is always competent to show the relations which exist between the party against as well as the one for whom he is called. StarJcs v. Peo- ple, 5 Denio, 106 ; Bemis v. Kyle, 5 Abb. N. S. 232 ; Newton v. Harris, 6 N". Y. (2 Seld.) 345. But, where the cross-examining party attempts to show that the witness is giving his testimony under some feeling or impulse inconsistent with an impartial disclosure of the truth, he should show that fact only, and not inquire after the particular process, or the detail of the circum- stances by means of which that feeling may have been produced. Boynton v. Boynton, 43 How. 380. The fact itself is all- that the case can require to be proved, and all that the law will permit to be shown. The discovery of the motive under which the wit- ness may be giving his evidence is the end and object to be attained ; and this can always be accomplished by the direct inquiry concerning its existence or concerning the facts them- selves, if they are such as ordinarily indicate the existence of improper motives. lb. A party cannot bring evidence to confirm the character of a witness before the credit of that witness has been impeached, either upon cross-examination or by the testimony of other wit- nesses ; but if the character of the witness has been impeached, although upon cross-examination only, evidence on the other side may be given to support the character of the witness by general evidence of good conduct. It is a general rule that a party will not be permitted to give evidence of his witness's good character until it has been attacked on the other side, either by the evidence of witnesses called for such purpose, or by the evidence of the witnesses on cross-examination going to impeach his general character. People v. Gay, 7 M". Y. (3 Seld.) 378 ; S. C, 1 Park. 308 ; Bracy v. Kibbe, 31 Barb. 273 ; Frost v. McOargar, 29 id. 617 ; Hannah v. McKellip, 49 id. 342. Evidence which merely goes to show that the account given by a witness is improbable, or to show that the witness had made declarations hostile to the party against whom he was called, does not amount to an attack upon general character, which will authorize the party to call witnesses, to show the general charac- TRIAL BY JURY. 149 Impeaching witness. ter of the attacked witness to be good. Starlcs v. People 5 Denio, 106. See People v. Hulse, 3 Hill, 309 ; Leonori v. Bishop, 4 Duer, 420. Thus where the veracity of a witness is attacked, and he is sought to be impeached only by proof of contradictory statements made by him on other occasions, in respect to the same matter, or by proof of particular facts stated by such witness against himself, on his examination, evidence of his general good character, or of good character for truth and veracity, is incompetent for the purpose of supporting the wit- ness. Frost v. McCargar, 29 Barb. 617. But, where the cross-examination of a witness is conducted in a manner which tends to impair his credibility, by showing that a certain prosecution was the result of a conspiracy in which the witness was concerned, it is competent for the party to sus- tain his witness by evidence corroborating his statements and vindicating his motives. Lohman v. People, 1 N. Y. (1 Comst.) 380. Evidence which is given for the purpose of sustaining the character of a witness should be as to his character for truth and veracity, and not to his honesty. Qurney v. Kenny, 2 E. D. Smith, 132. And an opinion that a witness is honest can have little weight against his own testimony, that he had com- mitted numberless larcenies. lb. And after the credit of a witness has been impeached by the production of a record of his convic- tion for the crime of larceny, it is not competent for the party calling him to give evidence explanatory of the conviction, and in favor of the innocence of the witness notwithstanding the convic- tion. Gardner v. Bartholomew, 40 Barb. 325. But, where the cross-examination of a witness tends to impeach his credibility, it is competent for the party calling him, to sustain him by giving in evidence letters of the adverse party, which tend to show that the witness is worthy of credit. Stacy v. Graham, 14 N. Y. (4 Kern.) 492. Where an attempt is made to impeach a witness, by showing a bias on his part toward the party calling him, on account of relationship, it is competent for such party to show that he a,nd the witnesses are at variance, and not on good terms Olapp v. Wilson, 5 Denio, 285. It is no corroboration of the testimony of a witness, to show that he has previously made declarations out of court corre- sponding with evidence given by him on the trial, and, therefore 150 TKIAL BY JURY. Impeaching witness. such declarations ought not to be received, in evidence. Dudley v. Bolles, 24 Wend. 465 ; Smith v. Stickney, 17 Barb. 489. And this is the rule, even when an attempt has been made to impeach the witness by showing that he has made contradictory state- ments out of court. lb. When the character of a witness is impeached by general evidence, the party who called the wit- ness is at liberty to examine the impeaching witnesses as to the grounds of their belief. And the impeaching witnesses may themselves be impeached in the same manner as any other witness. The foregoing rules relate exclusively to the impeachment of witnesses called by the adverse party. It is now proposed to inquire whether a party can be allowed to produce evidence for the purpose of disproving or impeaching the testimony of his own witnesses, although such evidence should have the effect of throwing discredit upon the witnesses. It is clear that a party is not to be sacrificed to his witness ; he is not represented by him, nor ought he to be identified with him, or bound by all he may say. On the other hand, a party ought to be placed under such restrictions as may be necessary for preventing unfair or dishonest practice. If a party produces a witness, knowing him at the time to be a man of infamous character, and that witness, in giving evidence, disappoints or deceives him,' he ought not to be allowed to prove his infamy for the purpose of destroying the effect of his evidence. Knowing the infamy of his character, he had more reason to suspect and disbelieve, than to trust; him ; nor has he any just ground to complain that his cause is prejudiced by false evidence, as he could expect nothing less from such a witness ; and he suffers not unjustly for using a witness whom he knew to be infamous. But if a party not acting a dishonest part is deceived by his witness ; or, if a witness professing himself a friend, turns out an enemy, and after promising proof of one kind gives evidence directly contrary, is the party to be restrained from laying the true state of the case before the court ? The common sense of mankind might be expected to answer this proposition in the negative, and to decide that the true state of the case should be made known. Further, if a witness, whether from mistake, from ignorance, or from design, gives evidence unfavorable to the party who calls him, is the party to be restrained from calling other witnesses to prove facts different TEIAL BY JURY. 151 Impeaching 'witness. from those which he has represented ? All must agree that such proof of a different state of facts ought to be allowed. But, in the first place, it is to be remembered thai; it is an established rule, that a party shall never be permitted to produce general evidence to discredit his own witness ; for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him. The meaning of the rule is, that a party, after producing a wit- ness, cannot prove him to be of such general bad character as would render him unworthy of credit. Thompson v. Blanchard, 4 N. Y. (4 Oomst.) 303 ; Williams v. Sargeant, 46 N. Y. (1 Sick.) 481. Nor can the party producing a witness be permitted to prove that such witness has at another time made declarations or statements contradictory to the statements to which he testi- fied, for the purpose of affecting his credibility as a witness. lb. If either party to an action calls his adversary as a witness, he will be bound by the same rules which apply to other witnesses ; and he cannot impeach the general character of such witness, nor show that he has made contradictory statements. Pickard v. Collins, 23 Barb. 444. See Berner v. Mittnacht, 2 Sweeny, 582 ; Central National Bank of City of New York v. Arthur, id. 194. The cross-examination of a witness does not, as a general rule, make him the witness of the cross-examining party, so as to pre- vent him from impeaching the witness. And where a witness for the plaintiff was cross-examined by the defendant and the cross-examination suspended, and then renewed after the plain- tiff had rested, and he was then re-examined by the plaintiff, and then cross-examined by the defendant, this was held not to preclude the defendant from impeaching the general character of the witness, and from showing that he had made contradictory statements. Mattice v. Allen, 33 Barb. 543. See People v. Moore, 15 Wend. 419. But, if the cross-examination relates to entirely new matter ; or, if the party entitled to cross-examine a witness calls him subsequently to prove new matter on his own side, it may be that he will so far make the witness his own as not to be permitted to impeach his general character. lb. When, however, a party is under the necessity of calling a witness for the purpose of satisfying the formal proof which the 152 TRIAL BY JURY. Impeaching witness. law in some cases requires, lie is not precluded from impeaching Buch a witness. And, for that reason, a party may impeach a subscribing witness, whom he has been compelled to introduce as a witness. Dennett v. Dow, 5 Shepley, 19 ; JShorey v. Hussey, 32 Me. 579. See GreenougJi v. Eccles, 5 C. B. (J. Scott) JST. S. 807, note, and cases cited. And when a witness, by surprise, gives evidence against the party who called him, that party will not be precluded from proving his case by other witnesses ; for it would be contrary to justice that the treachery of a witness should exclude a party from establishing the truth by the aid of other testimony. "When a party is thus surprised by the statements of his own witness and he calls other witnesses to contradict him as to particular facts, it does not follow from necessity that the whole of the evi- dence of the contradicted witness is to be rejected. The whole matter is a question for the jury. Bradley v. Ricardo, 8 Bing. 57. And, although a party may not impeach or assail the credi- bility of his own witness by general evidence, or by showing that he had previously made statements inconsistent with his testimony, he may prove on the merits, by independent testi- mony, the truth of a particular fact in direct contradiction to the testimony of the witness. Thompson v. Blanchard, 4 1ST. Y. (4 Comst.) 303 ; Williams v. Sargeant, 46 N. Y. (1 Sick.) 481. If the testimony offered is material, and goes to the very facts in issue, it is competent, although it should contradict every other witness whom the party has examined. The rule prohibits a contradiction which is attempted for the mere purpose of im- peachment of the party' s own witness, or where the matter sought to be contradicted is collateral only, and not going to the issue. Parsons v. Suydam, 3 E. D. Smith, 276 ; Pickard v. Collins, 23 Barb. 444. A party calling a witness is not bound by his testimony in all its parts. He may, if he is able, satisfy the court or jury, from the facts and circumstances stated by the witness himself, that the witness is mistaken in some of his statements or conclusions, while he is correct in others. Keutgen v. Parks, 2 Sandf. 60. When a witness is cross-examined as to collateral matters, for the, purpose of affecting his credit, his answers in relation to such matters are conclusive. But when the questions relate to matters which are material to the issues, his answers are not con- clusive even though the evidence came out on cross-examination, TRIAL BY JURY. 153 Committing perjured witness — Proceedings where defect of parties. and he may be contradicted by other witnesses. Mills v. Carnly, 1 Bosw. 160. The court has a discretion as to the number of witnesses to be called for the purpose of impeaching a witness, and will limit the number to meet the requirement of every case, should either party persist in wasting the time of the court by the examina- tion of an unreasonable number of impeaching witnesses. Green v. Brown, 3 Barb. 119 ; Nolton v. Moses, id. 31. o. Committing perjured. witness. It is provided by statute that whenever it shall appear to any court of record, or to any surrogate, that any witness or party who has been legally sworn and examined, in any cause, matter or proceeding pending be- fore such court or surrogate, has testified in such a manner as to induce a reasonable presumption that he has willfully and cor- ruptly testified falsely to some material point or matter, such court or surrogate may immediately commit such party or wit- ness, by an order or process for that purpose, to prison, or take recognizance with sureties, for his appearing and answering to an indictment for perjury. Laws of 1867, ch. 782, § 5. Section 18. Proceedings where defect of parties. a. In general. The Code declares that the court may deter- mine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but, when a complete determination of the contro- versy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes ap- plication to the court to be made a party, it may order him to be brought in by the proper amendment. Code, § 122. A defendant may waive his right to have other parties brought in, by not demurring to the complaint, if the defect of parties was apparent upon its face ; or by not taking the objection by answer, if the defect was known to him but did not so appear. But, although the defect of .parties appears upon the face of the complaint, and the defendants fail to demur or raise the objec- tion in their answer, the Code makes it the imperative duty of the court to cause the proper parties to be, brought in whenever it appears that a complete determination of the controversy can- not be had without the presence of such other parties. Shaver Vol. III. — 20 154 TRIAL BY JURY. Proceedings where defect of parties — Of plaintiffs — Of defendants. v. Brainard, 29 Barb. 25 ; Powell v. Finch, 5 Duer, 666 ; Davis v. Mayor, etc., of New York, 2 id. 663. The cases in which "a complete determination of the contro- versy cannot be had without the presence of other parties," are where there are persons, not parties, whose rights must be ascer- tained and settled before the rights of the parties to the suit can be determined. There may be many other cases in which a de- fendant may require other parties to be brought in, so that the judgment of the court in the action may protect him against the claims of such other parties ; but this is his own privilege, and he may waive it. McMaJion v. Harrison, 12 How. 39. o. Of plaintiffs. If the complaint shows upon its face that there is a defect of parties plaintiff, and the defendant has omit- ted to demur, or if the defect is not apparent upon the face of the complaint, and the defendant has failed to set it up in his answer, the Code still makes it necessary for the court to cause the proper parties to be brought in, if the rights of the necessary parties cannot be saved in rendering final judgment. In other cases the defendant may be deemed to have waived the objection by failing to raise it by answer or demurrer. Shaver v. Brain- ard, 29 Barb. 25. If, however, the objection was raised by an- swer or demurrer, the complaint should, as a general rule, be dismissed. The court may, however, in its discretion, either allow the cause to stand over for the purpose of allowing the plaintiff to bring in the proper parties, upon payment of costs, or may dismiss the complaint. Van Bpps v. Van Deusen, 4 Paige, 64. If the defendant does not set up the objection in his pleadings, the complaint should not, as a general rule, be dis- missed ; but, on the contrary, the plaintiff should be allowed a reasonable time in which to bring in the proper parties, unless such parties were willfully or fraudulently omitted. Van Epps v. Van Beusen, 4 Paige, 64 ; Davis v. May or, etc., of New York, 2 Duer, 663 ; VanderwerTcer v. VanderwerJcer, 7 Barb. 221 ; Loes- chigk v. Addison, 7 Rob. 506; O'Brien v. Heeney, 2 Edw. Ch. 242. c. Of defendants. The general rules above stated are equally applicable to proceedings on the omission of the plaintiff to make all necessary parties defendants. The court will not, however, allow the plaintiff to bring in a new party defendant when the presence of such party is the sole condition necessary to his right of recovery. McMahon v. TRIAL BY JURY. 155 Bringing in third parties. Allen, 12 How. 39. Nor will the court order new parties de- fendant to be brought in against the will of the plaintiff, unless their presence is necessary to the determination of the action. Saioyer v. Chambers, 11 Abb. 110. But when an amendment of the complaint is ordered, the plaintiff must either procure the voluntary appearance of the omitted defendants, or must serve them with an amended sum- mons and complaint. All the other defendants must be likewise served, and they may thereupon put in a new answer to the amended complaint. Akin v. Albany Northern Railroad Co., 14 How. 337. d. Bringing/ in third parties. The Code provides, that when, in an action for the recovery of real or personal property, a per- son, not a party to the action, but having an Interest in the sub- ject thereof, makes application to the court to be made a party, it may order him to be brought in by a proper amendment. Code, § 122. This provision of the Code applies only to actions for the recovery of real or specific personal property and does not apply to actions for the recovery of money. Kelsey v. Murray, 28 How. 243 ; S. C, 18 Abb. 294 ; Judd v. Young, 7 How. 79; Tollman v. Hollister, 9 id. 508.. The object of the provision is only to extend the power formerly pos- sessed by courts of equity in this respect, to the legal actions specified; and its application is confined to the class of cases in which a bill of interpleader would have accom- plished the same end. Hornby v. Gordon, 9 Bosw. 656. Thus, in an action brought by a vendor of goods, to recover possession of them on the ground of fraud on the part of the purchaser, third persons claiming under the purchaser, by virtue of contracts with him, and in hostility to each other, will not be granted leave to come in as parties. lb. So where a partner has trans- ferred his interest to a third party with the consent of the other partner, and the new partner has brought an action to obtain a dissolution of his partnership, an accounting and a proper appli- cation and distribution of the assets, the retiring partner cannot obtain an order directing that the complaint be so amended as to allow him to be made a party, although the new firm covenanted with him to collect and apply the assets of the old firm to the payment of its debts. Dayton v. Wilkes, 5 Bosw. 655. Nor can such an order be made in an action in the nature of a credi- 156 TRIAL BY JUKY. Bringing in third parties — Nonsuit — Voluntary nonsuit. tor's bill to reach, a surplus in the hands of the surrogate. Tall- man v. Hollister, 9 How. 508. A partition suit may be deemed an action for the recovery of real property within the meaning of section 122 of the Code ; and in such suit the court may order a person not a party, but having an interest in the subject, to be made a party by amend- ment. But where a suit in partition is instituted for the purpose of apportioning the real estate of a person deceased among his heirs and devisees, a judgment creditor of the deceased is not entitled to be made a party for the purpose of enforcing the pay- ment of his claim out of the real estate of the deceased debtor. Waring v. Waring, 3 Abb. 246. In an action for the recovery of personal property seized under an execution against a third person, the plaintiff in the execution is entitled, on applying, to be made a defendant under the pro- vision ,of the Code before mentioned. Coriklin v. Bishop, 3 Duer, 646. The application to be made a party is usually based on a peti- tion setting forth the nature of the action, the interest of the party applying in the subject-matter of the action, and such facts and circumstances as will tend to show a necessity for the amendment. .Notice of the application should be given to both plaintiff and defendant. The application must be made before j udgment. Oar swell v. Neville, 12 How. 445. The granting of the order is in the dis- cretion of the court ; and the application will be denied if it appears that the applicant is prosecuting a separate action, adapted to secure all the relief to which he claims to be entitled. Scheldt v. Sturgis, 10 Bosw. 606. Section 19. Nonsuit. a. In general. A nonsuit may be either voluntary or com- pulsory. A nonsuit is voluntary when the plaintiff, by his own act, causes a dismissal of the action ; it is compulsory when the complaint is dismissed against his will, and on motion of the adverse party, or by the direction of the court on its own motion. b. Voluntary nonsuit. If from any reason the plaintiff finds that his evidence is not sufficient to maintain his case, he may submit to a nonsuit in order that he may have an opportunity of bringing the action on again, either in another form, or when he is better prepared with evidence. A nonsuit is only a default ; TRIAL BY JUKY. 157 Voluntary nonsuit — Compulsory nonsuit. and when the plaintiff has submitted to it, he may, notwith- standing, commence another suit against the defendant for the same cause of action. % If the plaintiff desires to be nonsuited, and the defendant does not seek affirmative relief against him, he has bat to absent him- self when the cause is called to attain this end. Under the former practice a plaintiff might submit to a nonsuit on the coming in of the jury, even where a notice of set-off had been given, and the jury were prepared to certify a balance in favor of the defendant. Wooster v. Burr, 2 Wend. 295. So a plaintiff in replevin was allowed to submit to a nonsuit on the coming in of the jury as in ordinary actions. Gale v. Hoysradt, 1 How. 72; S. C., 7 Hill, 179. A nonsuit was obtainable in such cases by failing to appear when the jury came into court to deliver their verdicfc. A verdict was irregular if the plaintiff was not called by the clerk, on the coming in of the jury, before taking the verdict, and his appearance or default entered. lb. This practice has, however, long been changed ; and it is pro- vided by the rules of the supreme court, that it shall not be necessary to call the plaintiff when the jury return to the bar to deliver their verdict ; and that the plaintiff shall have no right to submit to a nonsuit after the jury have gone from the bar to consider of their verdict. Rule 38, Sup. Ct. A party who has voluntarily submitted to a judgment of non- suit, cannot appeal therefrom and obtain a reversal of the judg- ment. Van Wormer v-. Mayor, etc., of Albany, 18 Wend. 169 ; CP Dougherty v. Aldrich, 5 Denio, 385 ; Jackson v. Jackson, 16 Ohio St. 163 ; Wells v. Martin, 1 id. 386. c. Compulsory nonsuit. According to the practice of the Eng- lish courts, a plaintiff cannot be nonsuited on the trial against his assent, but may insist on the cause going to the jury, and thus take his chance of a verdict. 1 Archb. Pr. 444 (12th ed.). But, according to the practice of this State, a plaintiff may be compelled to be nonsuited on the trial, where the evidence offered by him is clearly insufficient to support his action, there being then no question of fact to be decided, by the jury. This power of the courts, to nonsuit the plaintiff, arises from the fact that they are judges of the law in the case, when no facts are in dis- pute. Lobar v. Koplin, 4 N. Y. (4 Comst.) 547 ; Pratt v. Hull, 13 Johns. 334; People v. Cook, 8 K Y. (4 Seld.) 67, 74. If the evidence will not authorize the jury to find a verdict for the plain- 158 TRIAL BY JURY. Compulsory nonsuit. tiff, or if the court would set it aside, if so found, as contrary to evidence, it is the duty of the court to nonsuit the plaintiff. Silliman v. Lewis, 49 N". Y. (4 Sick.) 379 ; Lobar v. Eoplin, 4 N. Y. (4 Comst.) 547 ; Steves v. Oswego & Syracuse R. R. Co., 18 N. Y. (4 Smith) 422 ; Stuart v. Simpson, 1 Wend. 376 ; Smith v. Sauger, 3 Barb. 360; Budd v. Davis, 3 Hill, 287; S. C. affirmed, 7 id. 529. But it is not enough to justify a nonsuit that a court, upon a case made, might, in the exercise of its discretion, grant a new trial. It is only where there is no evidence in law which, if be- lieved, will sustain a verdict, that the court is called upon to nonsuit ; and the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evi- dence as to justify the granting of a new trial. Colt v. Sixth Avenue R. R. Co., 49 K. Y. (4 Sick.) 671. To justify a verdict the law requires such proof as will leave no reasonable doubt of the existence of the fact upon which it must rest. A plaintiff cannot recover upon a possibility, nor even upon a probability ; and where the evidence upon the trial only tends to prove the possibility of the existence of the facts upon which the right of recovery depends, it is the duty of the court to grant a nonsuit. Sheldon v. Hudson River R. R. Co., 29 Barb. 226. A nonsuit may be granted at the trial of a cause on the testi- mony adduced by the defendant. Lomer v. Meeker, 25 N. Y. (11 Smith) 361 ; Rudd v. Davis, 3 Hill, 287 ; S. C. affirmed, 7 id. 529 ; Jansen v. Acker, 23 Wend. 480 ; Fort v. Collins, 21 id. 109. Thus, where, in an action upon a promissory note, the plaintiff makes a prima facie case, and the defendant intro- duces direct, positive and uncontradicted evidence establishing the defense of usury, the defendant is entitled to a nonsuit. Lomer v. Meeker, 25 IS. Y. (11 Smith) 361. So where, in. an action brought by a contractor to recover the amount due by the terms of the contract, the defendant introduces positive and un- contradicted evidence of payment, the defendant is entitled to a nonsuit. Rudd v. Davis, 3 Hill, 287 ; S. C. affirmed, 7 id. 529. To warrant a nonsuit on the evidence of a defendant, after a plaintiff has made out a prima facie case, it is not necessary that the evidence should be conclusive in its character, as, for example, a record, or something amounting to absolute verity, so as to present a mere question of law. It is enough that a verdict for the plaintiff would be against clear and uncontradicted evi- ■ TRIAL BY JURY. 159 Compulsory nonsuit. dence, establishing a valid defense to the plaintiff's cause of action, regardless of the character of that evidence. lb. It is a general rule that, where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony must be credited. Lomer v. Meeker, 25 N. Y. (11 Smith) 361 ; Newton v. Pope. 1 Cow. 109 ; Dolsen v. Arnold, 10 How. 528. But this rule is subject to many qualifications. There may be such a degree of improbability in the statements them- selves as to deprive them of credit, however positively made ; and furthermore, it is often a difficult question to decide when a witness is, in a legal sense, uncontradicted. He may be contra- dicted by circumstances, as well as by statements of others, con- trary to his own. In such cases, courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached. Elwood v. Western Union Telegraph Co., 45 M". Y. (6 Hand) 549. See Stafford v. Leamy, 43 How. 40. But the positive testimony of an unimpeached, uncontradicted wit- ness cannot be disregarded by court or jury arbitrarily or caprici- ously ; and when, by such testimony, a defendant has established a defense to the plaintiff's cause of action, it is the duty of the court, at his request, to nonsuit the plaintiff, or, what amounts to the same thing, dismiss the complaint. Lomer v. Meeker, 25 IS. Y. (11 Smith) 361. See Seibert v. Erie Railway Co., 49 Barb. 583 ; McMullen v. Hoyt, 2 Daly, 271. But a nonsuit cannot be ordered where the facts are not clear, or depend upon conflicting testimony. In such cases the case must be submitted to the jury. Bidwell v. Lament, 17 How. 357; Keller v. N. T. Central R. R. Co., 24 id. 172 ; Smith v. Tiffany, 36 Barb. 23 ; Bernhard v. Brunner, 4 Bosw. 528. A nonsuit cannot be granted on the assumption, by the court, that the plaintiff's witness is not to be believed. Whether a witness is credible or not is solely a question for the considera- tion . of the jury. Merritt v. Lyon, 3 Barb. 110. In determin- ing the propriety of a nonsuit, the court is legally bound to assume the truth of the facts which the testimony of the plain- tiff legitimately conduces to prove, although their correctness be controverted by the defendant's witnesses. Ernst v. Hudson River R. R. Co., 35 N. T. (8 Tiff.) 9, 25 ; S. C, 3 Abb. N. S. 82 ; 16Q TKIAL BY JUEY. Compulsory nonsuit. 32 How. 61 ; Colegrote v. N. T. & New Haven R. R. Co., 20 K Y. (6 Smith) 492. A nonsuit will be properly denied if the evidence shows that the plaintiff is entitled to recover any thing, although it be but nominal damages. Van Rensselaer v. Jewett, 2 N". Y. (2 Comst.) 135. So in an action by an administrator to recover damages for the death of his intestate, a nonsuit, or a direction to find nomi- nal damages only cannot be given merely because there is no proof of special pecuniary damage to the next of kin, resulting from the death of the deceased. Ihl v. Forty-second Street, etc., R. R. Co., 47 1ST. Y. (2 Sick.) 317. The commencement of an action by a plaintiff under a wrong name is not a ground for a nonsuit at the trial. Travery. Eighth Avenue R. R. Co., 3 Keyes, 497 ; S. C, 3 Trans. App. 203 ; 6 Abb. N. S. 46. It has been held in the New York superior court, that a nonsuit could not be granted on the ground that the plaintiff's counsel had not stated in his opening facts sufficient to constitute a cause of action. Stewart v. Hamilton, 28 How. 265 ; S. C, 18 Abb. 298 ; 3 Bob. 672. But in the supreme court a nonsuit has been granted on that ground only. Beckwith v. -Whalen, 5 Lans. 376. Where evidence, upon which a right to recover depends, has been received, and subsequently stricken out on motion of the defendant, a nonsuit may be ordered notwithstanding such evi- dence. Bryant v. Bryant, 42 K Y. (3 Hand) 11. Prior to the Code, a motion for a nonsuit brought up the ques- tion, whether the proof was sufficient to support the declaration ; and if the plaintiff proved his cause as laid, the motion would be denied, for the sufficiency of the declaration could be tested only by demurrer, or by a motion in arrest of judgment. But since the Code, the defendant does not waive the objection that the complaint does not state facts sufficient to constitute a cause of action, by omitting to raise it by answer or by demurrer. He may take the objection at the trial by a motion for a nonsuit. Abernethy v. Society of the Church of the Puritans, 3 Daly, 1. But, while defects in the complaint may be stated as a ground for a motion for a nonsuit, yet if further testimony is given without objection, and it is sufficient to establish a cause of action, the motion will be denied. Kern v. Towsley, 51 Barb. 385. A plaintiff may be nonsuited as to one cause of action, and recover as to the rest. Packard v. Hill, 7 Cow. 434. So he may be nonsuited as to one of several defendants, and recover as to TRIAL BY JURY. . 161 Compulsory nonsuit — Motion for. 1 : the rest. Woodbum VVChamberlin, 17 Barb. 446 ; Jones v. Gibson, 5 Barn. & Cress. 768. See McMartin v. Taylor, 2 Barb. 356 ; Dominick v. Eacker, 3 id. 18. The rule is the same where some of the co-defendants have not appeared. Lomer v. Meeker, 25 1ST. Y. (11 Smith) 361. d. Motion for. The defendant may move for a nonsuit when the plaintiff rests, or he may give testimony and rest, and then move for a nonsuit. Ernst v. Hudson River R. R. Co., 24 How. 97. A nonsuit, or, as it is often termed, a dismissal of the com- plaint, may be granted at the close of the evidence on both sides, or at any other time when the plaintiff admits that he has no further evidence. People v. Cook, 8 N. Y. (4 Seld.) 67. The motion should not, however, be made at a time when it would necessarily interrupt the orderly administration of justice in the trial of the cause, as for example, during the progress of a direct examination of a witness, as in such cases the court will deny the motion. Winfield v. Potter, 24 How. 446 ; S. C., 10 Bosw. 226. In moving for a nonsuit the defendant should distinctly bring to the notice of the court the special grounds which he deems will justify the granting of the motion. Castle v. Duryea, 32 Barb. 480. This is necessary not only that the court may be able to pass intelligently on the question presented, but also that the opposite counsel may understand the real point which the de- fendant intends to raise. Abernethy v. Society of the Church of the Puritans, 3 Daly, 1 ; Trustees of St. Mary's Church v. Cagger, 6 Barb. 576. A motion for a nonsuit, founded upon the objection that the plaintiff has shown no right to recover, or upon the objection that the evidence does not entitle the plaintiff to recover under the pleadings, is too general and indefinite, and cannot be sustained. lb. Formal objections will not be listened to unless distinctly made. Castle v. Duryea, 32 Barb. 480. And an appellate court will not consider any objection, raised by the defendant on the motion, which does not specify the defects supposed to exist. If the nonsuit is demanded on the ground of a failure of proof, and the missing links of evidence might have been supplied on the trial without difficulty, and the objection obviated if the particular defects had been pointed out, the ap- pellate court will not review a refusal to grant a motion for a nonsuit founded on a mere general objection. Mallory v. Trav- elers' Ins. Co., 48 K Y. (2 Sick.) 52 ; Binsse v. Wood, 37 K Y. Vol. III.— 21 162 TKIAL BY JUEY. Compulsory nonsuit — Motion fcjr — The decision. (10 Tiff.) 526 ; S. C, 5 Trans. App. 42 ; Shotwell v. Mali, 38 Barb. 445 ; S. C. affirmed, 36 TS. Y. (9 .Tiff.) 200; 34 How. 338; 1 Trans. App. 96. And where the defendant states his grounds of moving for a nonsuit, and the motion is denied, he will not be entitled to have the judgment reversed because the motion ought to have been granted upon another ground - not specified or brought to the attention of the court. Abernethy v. Society of the Church of the Pilgrims, 3 Daly, 1 ; Belknap v. Sealey, 14 1ST. Y. (4 Kern.) 143. See Grooke v. Mali, 11 Barb. 205. In opposition to the rules above stated, it has been held by the general term of the supreme court that, where the counsel for the defendant moved for a nonsuit upon the whole case, upon the general ground that the plaintiff had not made out a cause of action, and the motion was denied, the appellate court might reverse the judgment, where it appeared that no cause of action had been made out by the plaintiff's evidence, even though no reasons or grounds for the nonsuit were stated or pointed out, and the exception was general merely, and where it was appa- rent that the party moving for a nonsuit had misapprehended the true grounds of his motion, and was relying upon another ground wholly untenable. Winslow v. Bliss, 3 Lans. 220. A motion for nonsuit in behalf of all of several defendants will be denied, if there is evidence sufficient to charge any one of them. Woodburn v. Ohamberlin, 17 Barb. 446. e. The decision. It is among the primary and most important duties of the court to order a nonsuit, or to grant a new trial, whenever the evidence is not sufficient to authorize, or to sustain a verdict. When there is proof which, uncontradicted, makes out the fact upon which the recovery depends, on the one side, and there is testimony which tends to disprove its existence on the other ; or, when the recovery depends upon the degree of credit to be given to the witnesses on either side, whatever may be the opinion of the judge at the trial, he should not interfere, because these are questions to which, according to the system upon which the administration of justice rests, the jury alone can re- spond. But, when the evidence is of such a character that the court in banc would be bound to set aside a verdict for the plain- tiff as unsupported by the evidence, should the jury find one, it is the duty of the court to nonsuit the plaintiff. Sheldon v. Hudson River B. JR. Co., 29 Barb. 226 ; Lobar v. Koplin, 4 K". Y. (4 Comst.) 547. It is a well-settled rule in this State, that TRIAL BY JURY. 163 Compulsory nonsuit — The decision. the right to nonsuit implies the duty, and that a refusal by a circuit judge to nonsuit a plaintiff in a proper case is a good ground for an exception. The right and duty to nonsuit are correlative. Lomer v. Meeker, 25 N". Y. (11 Smith) 361 ; Robin- son v. McManus, 4 Lans. 380 ; Carpenter v. Smith, 10 Barb. 663. On the other hand, where the plaintiff is entitled to have the cause submitted to a jury and a compulsory nonsuit is ordered, the granting of the nonsuit is a good ground for an exception. Rider v. Pond, 19 K Y. (5 Smith) 262. But, where the de- fendant moves for a nonsuit on the ground of the insufficiency of the proof, and the court improperly denies the motion, the appellate court will not disturb the verdict on the ground that the proof was insufficient when the application for the nonsuit was made, if the deficiency in the evidence was afterward sup- plied on the trial by either the plaintiff or the defendant. Sche- nectady & Saratoga Plank Road Go. v. Thatcher, 11 N. Y. (1 Kern.) 102 ; Kent v. Har court, 33 Barb. 491 ; Schwerin v. Mc- Kie, 5 Rob. 404 ; Barrick v. Austin, 21 Barb. 241 ; Mayor, etc., of the City of XT. Y. v. Mason, 1 Abb. 344 ; S. C, 4 E. D. Smith, 142 ; Colegrove v. Harlem & 37ew Haven R. R. Co., 6 Duer, 382 ; Colvin v. Burnet, 2 Hill, 620. The granting of a nonsuit is, in effect, a decision that, as a matter of law, the plaintiff has not produced evidence sufficient to sustain the cause of action. See Scofleld v. Hernandez, 47 N". Y. (2 Sick.) 313. But, on the other hand, the mere denial of a motion for a nonsuit does not necessarily imply that the plain- tiff is entitled to a verdict, but may, and most frequently does, establish simply that the evidence adduced is of such a character as to require the decision by the jury of the questions of fact involved. Ross v. Mayor, etc., of N. Y, 4 Rob. 49. In effect, a nonsuit, or what is the same thing, a judgment of dismissal of the complaint, is not a bar to another action. Coif v. Bland, 22 How. 2; S. C, 33 Barb. 357; 12 Abb. 462; Wheeler v. Ruckman, 7 Rob. 447 ; S. C, 35 How. 350 ; Mechan- ics' 1 Banking Association v. Mariposa Co., 7 Rob. 225. This rule does not, however, apply to equitable actions. The dismissal of a complaint on the merits in actions for equitable relief is a bar to a second action for the same cause, and this result is not prevented by directing that it be without prejudice to a second action. BostwicTc v. Abbott, 40 Barb. 331 ; S. C, 16 Abb. 417. 164 TEIAL BY JURY. Withdrawing a juror — Effect of — Submitting specific questions. Section 20. Withdrawing a juror. a. In general. During the trial, after the jury are sworn, the parties sometimes agree to withdraw a juror. This is usually- done at the suggestion or upon the recommendation of the judge, in cases where it is doubtful whether the action will lie, or where the judge intimates an opinion that, under the peculiar circum- stances of the case, the action should proceed no further. The consent of the parties is not, however, essential, Courts may, in the exercise of a sound discretion, allow a juror to be withdrawn and still retain the cause upon the calendar for trial, instead of nonsuiting a plaintiff for a defect in his proof ; as in case of a surprise or mistake on his part in the preparation of his cause for trial, even where the plaintiff has not been will- fully misled by the defendant. People v. Judges of New York, 8 Cow. 127 ; People v. Ellis, 15 Wend. 371 ; People v. Olcott, 2 Johns. Cas. 301. o. Effect of. But, unless the court orders the cause to be retained upon the calendar, the withdrawal of a juror, by con- sent of the parties, puts an end to the cause, although it is not a bar to a second action for the same cause. Upon the with- drawal of a juror by consent, each party has to pay his own costs. 1 Archb. Pr. (12th ed.) 408. Section 21. Submitting specific questions. a. In general. The Code provides that in every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or a special verdict. In all other cases the court may direct the jury to find a special verdict iri writing upon all or any of the issues ; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. Code, § 261. The special ver- dict or finding must be filed with the clerk and entered upon the minutes. lb. The submission of specific questions of fact, in writing, to a jury, in addition to the issues generally, being purely a matter of discretion with the court, such questions may be withdrawn by the court from their consideration at any time, if it is done before they give their finding thereon. Taylor v. Ketchum, 5 Rob. 507 ; S. C, 35 How. 289. The submission of special ques- tions to a jury, to be answered by them in addition to their TRIAL BY JURY. 165 Submitting specific questions — Variance. general verdict, being entirely a matter of discretion with the court, neither of the parties can require it as a matter of right. If they need a finding upon special questions, they must apply to the court, in advance of the trial, for an order to that effect ; and no vested right is acquired by either party to have the findings given, because the court had once so directed. And where the" court has ordered the jury to pass upon special ques- tions of fact, the rendering of a special verdict, and its reception by the court without objection, either by the judge or the par- ties, is good, notwithstanding the jury have failed to answer special questions. Moss v. Priest, 1 Rob. 632 ; S. C, 19 Abb. 314. Section 22. Variance. a. In general. It not unfrequently occurs on the trial of a cause, that there is a want of harmony between the facts alleged in the pleadings, and the facts established by the evidence on the trial. Under the old system of practice, a variance between the pleadings and the proofs might be fatal to a good cause of action, or to a valid defense. Thus when the defense of usury was pleaded to an action on a specialty, or was set up in the plea or answer to a bill in equity, the defendant was required to prove the agreement as stated ; and if the proofs disclosed a usurious agreement different from that stated in the plea or answer, the defendant failed in his defense. Vroom v. Ditmas, 4 Paige, 526. Thus it sometimes happened that a party with a good defense of this nature, was defeated upon the trial, because the facts by which it was to be made out were imperfectly known, or inaccurately stated at the time the issue was framed. To obviate these and similar defects in the old system of prac- tice, the Code provides that no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice, in main- taining his action or defense upon the merits ; and that when- ever it shall be alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and also in what respect he has b^en misled. Upon such proof being made, the court is authorized to order the pleading to be amended upon such terms as shall be just. Code, § 169. But where the variance is not material, as above provided, namely, when the party has not proved that he has been actually ; misled, the court may either direct the fact to be found accord- 166 TRIAL BY JURY. Variance — Material variances — Immaterial variances. ing to the evidence, or may order an immediate amendment, -with- out costs. Code, § 170. But if an allegation is unproved not in some particular or particulars only, but in its entire scope and meaning, it is not be deemed a case of variance, but a failure of proof. Code, § 171. These provisions of the Code introduced a principle unknown to the former practice, namely, that of determining questions of variance not by the want of harmony between the pleadings and the proof, and thence inferring its effect upon the preparation the adverse party could make for trial, but by direct proof aliunde, as to whether the party was actually misled to his prejudice by the incorrect statements of the pleadings or not. Oatlin v. Gunter, 11 BT. Y. (1 Kern.) 368 ; S. C, 10 How. 315. b. Material variances. As has been stated, no variance between the allegation in a pleading and the proof is material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Code, § 169. And where a party has been misled to his prejudice by a vari- ance between the pleadings and the proof, the variance will still be deemed immaterial, unless the party prejudiced thereby shall prove to the satisfaction of the court that he was so misled, and also in what respect. lb. ; Oatlin v. Gunter, 11 N". Y. (1 Kern.) 368 ; S. C, 10 How. 315. The only test of the materiality of a variance is the proof furnished to the court, that the variance has actually misled him. If such proof is not furnished, the variance must be disregarded, and the pleadings may be amended to conform to the facts proved. Chapman v. Carolin, 3 Bosw. 456. For examples of material variance see Wait's Code, 316, note e. c. Immaterial variances. Every variance between the plead- ings in an action and the proof introduced on the trial must be deemed immaterial, unless it has been satisfactorily shown to have misled the adverse party to his prejudice in maintaining his action or defense, upon the merits ; or, unless the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning. Code, §§ 170, 171. For examples of immaterial variances, see Wait's Code, 315, note d. For examples of what are not variances but a failure of proof, see Wait's Code, 318, note d. TRIAL BY JURY. 167 Amendment — Summing up. d. Amendment. The Code, in declaring the practice on the discovery of variances between the pleadings and the proof on the trial, provides that, if the variance is found to be material, the court may order the pleading to be amended on such terms as may be just. Code, § 169. The amendment may be made at once, on compliance with such terms as the court may impose, or the court may direct that the party whose pleading is defect- ive proceed, with the trial, and if successful apply at chambers for leave to amend, with the same effect as if moved at the trial. Lettman v. Ritz, 3 Sandf. 734. Where the latter practice is adopted, the court may, on the argument of the motion, impose such terms as are deemed equitable, even to the reduction of the amount of the verdict if deemed excessive. lb. If, however, the variance is immaterial, the court may either disregard it or order an immediate amendment of the pleading, without costs. Code, § 170. For a further discussion of this subject, see "Mistakes and Amendments." Section 23. Summing up. a. In general. After the testimony is all in on both sides, if the defendant does not deem it advisable to move for a nonsuit on the whole case, the several counsel next proceed to sum up the cause to the jury. Unless the court otherwise direct, but one counsel on each side can sum up the cause ; and no counsel will be allowed to occupy more than one hour in summing up, unless by permission of the court. Rule 37, Sup. Ct. Not only has the court power to restrict the number of coun- sel who shall address the jury, and to limit the time occupied by each, but it may also withhold from the counsel the privilege of addressing the jury. Whether counsel shall address the jury is a matter resting within the sound discretion of the court. If the judge at the trial errs in the exercise of this discretion, the remedy is by motion for a new trial on a case. People v. Cook, 8 N. Y. (4 Seld.) 67. "The court may also compel the counsel to confine their re- marks to the issues. Mitchell v. Borden, 8 Wend. 570 ; Fry v. Bennett, .3 Bosw. 200 (242) ; S. C, 9 Abb. 45 ; Mitchvm v. Stale, 11 Ga. 615 ; Bullock v. Smith, 15 id. 395. The power of the court to deny to counsel the privilege of addressing the jury is properly exercised when the evidence is such as to render it proper for the court to direct a verdict for either party ; and the power of the court to confine the remarks 168 TRIAL BY JURY. Summing up — By the defendant. of the counsel to the issues should in all cases be exercised, where counsel on either side lose sight of the evidence and the issues, and indulge in denunciations of a party based on the assumption of facts not proved. 6. By the defendant. The party who begins on the trial is entitled to the closing address ; and it is. the general rule, that the party who has the affirmative of the issue has the right to open and close the case. Fry v. Bennett, 28 N. Y. (1 Tiff.) 324. This is, however, in a certain sense, a mere matter of practice, to be regulated by the discretion of the court. lb. When the plaintiff hag the affirmative, as is most frequently the case, the counsel for the defendant should first address the jury. In summing up the cause, he should state clearly the theory of the defense, as whether it acknowledges the cause of action of the plaintiff and shows some matters in discharge, or whether it denies that the plaintiff ever had any cause of action. All the particulars of the defense should be distinctly stated, and all the circumstances attending it. The counsel should next examine the evidence introduced on either side, and clearly review the testimony of the witnesses so far as it tends to show that the plaintiff never had a cause of action ; or, if it be conceded that he had one, that it had been discharged. How far it may be advisable to examine the character of the witnesses, the manner in which they gave their testimony, or any other circumstances which are calculated to give credence to the witnesses, or to deprive their testimony of confidence, is a matter of discretion to be determined by the circumstances of the case. The counsel should, however, carefully avoid dwelling on a weak point in the defense in anticipation of the remarks of the plaintiff thereon, because such a course will weaken rather than fortify his case. Having thus caused the facts presented on the trial to pass in review before the minds of the jury, the counsel may apply the law to the facts in clear, concise, well-chosen language. The counsel should not only give the rule of law applicable to the facts, but may also give the reason of the rule, and show that it is founded in reason and justice. Should the rule be one contrary to what has been popularly accepted as the one applicable to the state of facts presented, the minds of the jury should be carefully disabused of error by a proper citation, or even the reading of authorities. It is to be TKIAL BY JURY. 169 Summing up — By plaintiff — Rules for. remembered, however, that the court will lay down the rules of law for the guidance of the jury, and that counsel do not usually argue questions of law at length before the jury. See § 24 a, post, 170 to 172. c. By plaintiff . The first duty of the plaintiff, in the closing address to the jury, should be to destroy, as far as possible, any feeling of hostility or distrust toward himself or client which may have been aroused in the minds of the jury by the address of the counsel preceding him. This is often best accomplished by a well-turned compliment to the defendant's counsel, delivered with seeming sincerity and candor, but coupled with an intima- tion that all the facts in the case had not been presented, and that the points of law, upon which the right of the plaintiff to a ver- dict depends, had been ignored or overlooked. The counsel for the plaintiff should then distinctly state the full extent of the plaintiff's claim, and the circumstances under which it is made. He should also show how it is supported by the evidence, and the legal grounds and authorities in its favor. The principal facts upon which the right of recovery depends should be brought prominently forward, while those which are of minor importance should be dismissed with a single comment. The facts which the defendant has inadvertently brought out in support of the plaintiff's case should not be overlooked ; and the failure of the defendant to support the theory of the defense by facts, or the fact that the testimony of the defendant's wit- nesses has been rebutted by that of the plaintiff, should be im- pressed upon the mind of the jury. The misstatements of the defendant's counsel as to facts or law should be corrected, and his omissions supplied. The rules of law should be applied to the whole case as presented, and the case submitted to the jury, with at least assumed confidence in the result. d. Rules for. The general rules for the summing up of a cause have been aptly condensed by Judge Story in the follow- ing lines : " Be brief, be pointed ; let your matter stand, Lucid in order, solid, and at hand ; Spend not your words on trifles, but condense ; Strike with the mass of thoughts, not drops of sense ; Press to the close with vigor once begun, And leave (how hard the task !) leave off when done ; Who draws a labor'd length of reasoning out, Vol. Ill — 22 170 TRIAL BY JURY. Summing up — Rules for — Questions for the court. Puts straw in lines for winds to whirl about ; Who draws a tedious tale of learning o'er, Counts but the sands on ocean's boundless shore ; Victory in law is gained as battles fought, Not by the numbers, but the forces brought. What boots success in skirmish or in fray, If rout or ruin following, close the day ? What worth a hundred posts maintained with skill, If these all held, the foe is victor still ! He who would win his cause, with power must frame Points of support, and look with steady aim ; Attack the weak, defend the strong with art, Strike but few blows, but strike them to the heart ; All scattered fires but end in smoke and noise, The scorn of men, the idle play of boys. Keep, then, this first great precept ever near ; Short be your speech, your matter strong and clear ; Earnest your manner, warm and rich your style, Severe in taste, yet full of grace the while ; So you may reach the loftiest hights of fame, And leave, when life is past, a deathless name." Section 24. Questions for the court. a. In general. All questions of law arising on the trial are matters to be determined by the court, while questions of fact must be determined by the jury. When the evidence on the trial of a cause shows, as a matter of law, that the plaintiff cannot recover, the defendant is entitled as of right to a nonsuit, and it will be error to allow the case to go to the jury. Carpenter v. Smith, 10 Barb. 663 ; Lomer v. Meeker, 25 K Y. (11 Smith) 361 ; Lobar v. Koplin, 4 N. Y. (4 Comst.) 547 ; Haring v. New TorTc & Erie R. R. Co., 13 Barb. 9 ; Stuart v. Simpson, 1 Wend. 376. But it is only where there is no evidence in law which, if believed, will sustain a verdict, that the court is called upon to nonsuit. Colt v. Sixth Avenue R. R. Co., 49JST;Y. (4 Sick.) 671. When a fact not in itself, or in view of attending circumstances incredible or improbable, is positively and distinctly testified to by witnesses who are unimpeached and uncontradicted, it is error if the court submit it to the jury to find as a fact whether such evidence is true. Robinson v. McManus, 4 Lans. 380; Lomer v. Meeker, 25 N. Y. (11 Smith) 361 ; Siebert v. Brie R. R. Co., 49 Barb. 583 ; Elwood v. Western Union Telegraph Co., 45 N. Y. (6 Hand) 549 ; Milbank v. Dennistoun, 21 IS. Y. (7 Smith) 386; S. C, 19 How. 126; Besson v. Southard, 10 IS. Y. (6 Seld.) 236. TEIAL BY JURY. 171 "Questions for the court. When the terms and intent of a contract or instrument are fully proved, its construction, effect, sufficiency and validity are questions for the court. Chaffee v. Cattaraugus County Mutual Ins. Co., 18 H". Y. (4 Smith) 376 ; Stacy v. Graham, 3 Duer, 444 ; Hough v. Brown, 19 1ST. Y. (5 Smith) 111 ; Chapin v. Potter, 1 Hilt. 366; Cook v. Litchfield, 2 Bosw. 137; S. C, 5 Sandf. 330 ; 10 N.' Y. Leg. Obs. 330. But where the evidence in respect to its terms is conflicting or doubtful, and a question arises as to the intent of the parties, the question must be submitted to the jury under the instructions of the court. lb. The question of reasonable time or reasonable diligence is ordinarily a question of mixed law and fact. When there is a conflict of evidence, and the facts are unsettled, the jury are to decide under the instructions of the court as to the law. But where there is no dispute as to the facts, the question is purely one of law. Both v. Buffalo & State Line R. R. Co., 34 N. Y. (7 Tiff.) 548 ; Witbeck v. Holland, 45 1ST. Y. (6 Hand) 13 ; Hedges v. Hudson River R. R. Co., 49 N. Y. (4 Sick.) 223 ; Alexander v. Parsons, 3 Lans. 333. See Burnell v. N. T. Central R. R. Co., 45 N. Y. (6 Hand) 184. The question whether an act done was within the powers con- ferred upon an agent is a question of law for the court where there is no dispute about the agent's authority. Coykendall v. Eaton, 42 How. 378 ; Latham v. Westervelt, 26 Barb. 256. Questions of negligence on controverted facts are questions for the jury, and not questions of law for the court. Maloy v. N. Y. Central R. R. Co., 40 How. 274; S. C, 58 Barb. 182. But where the uncontroverted facts are such that negligence, whether contributory or otherwise, must be inferred as a matter of law, the question is for the court, and should not be submitted to the jury. Sexton v. Zett, .44 N. Y. (5 Hand) 430 ; Bernhardt v. Rensselaer & Saratoga R. R. Co., 23 How. 166. See Calkins v. Barger, 44 Barb. 424. Questions as to the allowance of alimony are always questions for the court. Forrest v. Forrest, 6 Duer, 102 ; S. C, 3 Abb. 144. The question whether certain undisputed facts constitute a change of possession is a question of law for the court. Mc- Carthy v. McQuade, 1 Sweeny, 387 ; Randall v. Parker, 3 Sandf. 69 ; S. C, 7 K Y. Leg. Obs. 332. The question of whether there was a delivery of a deed, be- 172 TRIAL BY JURY. Questions for the court — Mixed questions. comes a question for the court where the proof is such as to repel a presumption of an intent to deliver. Games v. Piatt, 1 Sweeny, 140 ; 8. C, 38 How. 100 ; 7 Abb. N. S. 42. The existence of fraud on an undisputed state of facts may be a question of law for the court ; as where the law declares that the continued possession of mortgaged chattels by the mortgagor shall be presumed to be fraudulent. Edgell, v. Hart, 9 N". Y. (5 Seld.) 213 ; Griswold v. Sheldon, 4 N. Y. (4 Comst.) 581. But, where there is any material and pertinent evidence of good faith, the question is one of fact, and must be submitted to the jury, lb. See Frost v. Warren, 42 K Y. (3 Hand) 204 ; Miller v. Lockwood, 32 N. Y. (5 Tiff.) 293. The question of intent, although usually one of fact, to be decided by the jury, is not necessarily so ; for it may, some- times, become a question of law for the court. Games v. Piatt,. 1 Sweeny, 140 ; S. C, 38 How. 100 ; 7 Abb. 1ST. S. 42. The question as to whether a proved publication, not privi- leged, nor capable of an innocent construction, is libelous or not, is a question for the court. Hunt v. Bennett, 19 N. Y. (5 Smith) 173 ; Lewis v. Chapman, 16 IS. Y. (2 Smith) 369 ; Matthews v. Beach, 5 Sandf. 256. The question of probable cause, upon a given state of facts, is in all cases a question of law. Carpenter v. Sheldon, 5 Sandf. 77 ; Bulkeley v. Smith, 2 Duer, 261 ; ,S. C, 11 1ST. Y. Leg. Obs. 300 ; Besson v. Southard, 10 N. Y. (6 Seld.) 236 ; Miller v. Milligan, 48 Barb. 30 ; Bulkeley v. Keteltas, 6 1ST. Y. (2 Seld.) 384 ; Burns v. Erben, 40 K Y. (1 Hand) 463. Whether or not a river is a public highway is, the facts of the case being conceded, a question for the court. Morgan v. King, 18 Barb. 277. Whether on a given state of facts a transaction constitutes a stated account, is a question of law. Lockwood v. Thome, 11 N. Y. (1 Kern.) 170. Whether a given state of facts constitutes a defense is a ques- tion for the court. Holbrook v. Wilson, 4 Bosw. 64. Section 25. Mixed questions. ♦ a. In general. A question which, if all the facts relating thereto were .undisputed or clearly established, would be a ques- tion of law for the court, becomes, when such facts are disputed and involved in doubt, a mixed question of law and fact. As it is the province of a jury to pass upon all questions where there TRIAL BY JUEY. 173 Mixed questions. is a conflict of evidence, and the duty of the court to declare the law upon the facts found, all mixed questions of law and fact must be submitted to the jury, under the instructions of the court as to the law. The jury, in considering their verdict, deter- mine first the facts,- and these being found, proceed to apply the law which the court has declared applicable thereto. If the verdict is general, the determination of the jury upon the ques- tion presented can be determined only inferentially, unless the jury have been instructed to bring in a written finding thereon, as provided in section 261 of the Code. The rule, that where the facts are not entirely clear, but depend upon conflicting testimony, the case must be submitted to the jury, is well settled. Wolf Mel v. Sixth Avenue R. R. Co., 38 K Y. (11 Tiff.) 49 ;*S. C, 5 Trans. App. 217; Barrett v. Third Avenue R. R. Co., 1 Sweeny, 568 ; S. C, 8 Abb. N. S. 205 ; Roth v. Buffalo & State Line R. R. Co., 34 1ST. Y. (7 Tiff.) 548 ; Ernst v. Hudson River R. R. Co., 35 N. Y. (8 Tiff.) 9 ; S. C, 32 How. 61 ; 3 Abb. N. S. 82, 88 ; 1 Trans. App. 53 ; Bateman v. Ruth, 3 Daly, 378. The following have been decided to be mixed questions of law and fact, where there is deficient or conflicting evidence : The question of reasonable diligence, or reasonable time. WitbecTc v. Holland, 45 H". Y. (6 Hand) 13 ; Roth v. Buffalo & State Line R. R. Co., 34 N. Y. (7 Tiff) 548. The question of negligence, contributory or otherwise. Wolf- Mel v. Sixth Avenue R. R. Co., 38 N". Y. (11 Tiff.) 49 ; S. C, 5 Trans. App. 217 ; Ernst v. Hudson River R. R. Co., 35 K". Y. (8 Tiff.) 9 ; S. C, 32 How. 61 ; 3 Abb. K S. 82 ; 1 Trans. App. 53 ; Bateman v. Ruth, 3 Daly, 378. The question of fraudulent intent in the execution of a mort- gage of chattels. Frost v. Warren, 42 K Y. (3 Hand) 204 ; Gardners. MpEwen, 19 K Y. (5 Smith) 123 ; GhriswoloZ v. Shdden, 4 N. T. (4 Comst.) 581. The question of the interpretation of an alleged libel, where the language is ambiguous, and capable of being understood in an innocent and harmless, as well as in an injurious sense. Lewis v. Chapman, 16 K. Y. (2 Smith) 369. So the question whether an alleged libel has in fact been published, or whether a publication is a privileged communication, is a question for the jury. KlincTc v. Colby, 46 N. Y. (1 Sick.) 427. 174 TRIAL BY JURY. Mixed questions. The question as to the terms of a contract and the intent of the parties. Chopin v. Poller, 1 Hilt. 366 ; Pendleton v. Empire Stone Dressing Co., 19 1ST. Y. (5 Smith) 13 ; Gardner v. Clark, 17 Barb. 538 ; Scott v. Pentz, 5 Sandf. 572 ; Bridgeport City Bank v. Empire Stone Dressing Co., 19 How. 51; S. C, 30 Barb. 421. The question as to the time when certain material alterations, erasures or interlineations in a contract were made. Pringle v. Chambers, 1 Abb. 58. And, also, whether the contract was exe- cuted at the time it bears date. Q-enter v. Morrison, 31 Barb. 155. See Games v. Piatt, 1 Sweeny, 140; S. C, 38 How. 100; 7 Abb. N. S. 42. The question of the existence of the facts which, if estab- lished, will constitute a probable cause for prosecution. Bulke- ley v. Keteltas, 6 N". Y. (2 Seld.) 384 ; Haupt v. Pohlmann, 1 Rob. 121 ; S.C., 16 Abb. 301 ; Burns v. Erben, 40 1ST. Y. (1 Hand) 463. The question whether a particular obstruction or erection is a nuisance. Morgan v. King, 18 Barb. 277 ; . St. John v. Mayor, etc., of New York, 6 Daer, 315 ; S. C, 13 How. 527. The question whether an act was willful and malicious, or otherwise. Jackson v. Second Avenue It. P. Co., 47 N". Y. (2 Sick.) 274. There are certain general rules relating to the instructions to be given to a jury, when called upon to pass upon a question of mixed law and fact, that may be important to notice. The court is not bound, without the request of parties, to give any instructions to the jury. Carter v. Bennett, 4 Fla. 283 ; Averett v. Brady, 20 Ga. 523 ; Wood v. Figard, 28 Penn. St. 403 ; Ward v. Herrin, 4 Jones, 23 ; Briggs v. Byrd, 12 Ired. 377 ; Jones v. State, 20 Ohio, 34. Jurors are presumed to be acquainted with all the rules of law in regard to which the par- ties do not request that they be instructed, or in regard to which the court does not instruct them. Haupt v. Pohlmann, 1 Rob. 121 ; S. C, 16 Abb. 301. The court should give clear and dis- tinct instructions to the jury, when instructions are requested or given, but the court need not enter into minute distinctions. Pendleton v. Empire Stone Dressing Co., 19 N-. Y. (5 Smith) 13. It is not the duty of the court to charge upon any abstract proposition contained in a request, and in no way relating to the questions submitted to the jury. Bedell v. Commercial Mut. Ins. Co., 3 Bosw. 147. Neither will the court be justifiable in sub- TRIAL BY JURY. 175 1 — Mixed questions — Questions for the jury. mitting to the jury an hypothesis wholly unwarranted by the evidence. Storey v. Brennan, 15 N. Y. (1 Smith) 524 ; Bouse v. Lewis, 2 Keyes, 352 ; Liddle v. Hodges, 2 Bosw. 537. The court cannot be required, in its charge to the jury, to ex- press an opinion upon a question of fact. Moore v. Meacham, 10 N. Y. (6 Seld.) 207. But it is not error for the court, in giving a charge, to express an opinion upon the facts, if the rules of law are given to the jury and they are thereby enabled to deter- mine the questions of fact then left for their final decision. Hunt v. Bennett, 4E.D. Smith, 647 ; Bruce v. Wester velt, 2 id. 440 ; Bows v. Bush, 28 Barb. 157. The court is not bound to submit a question of fact to the jury when their verdict, if contrary to his views of the testi- mony and its legal effect, would certainly be set aside as against law and evidence. " Godin v. Bank of the Commonwealth, 6 Duer, 76. Section 26. Questions for the jury. a. In general. It is a general rule that all questions of fact concerning which there is conflicting testimony should be sub- mitted to the jury. The assessment of damages rests, as a general rule, with the jury only ; subject to the instruction and direction of the court as to the measure of damages in any particular case. The rule as to the measure of damages so given is the basis upon which the jury must assess the damages ; and if explicit instructions are asked for and refused, or if erroneous instruc- tions are given, it will be a cause for a new trial. Green v. Hud- son River B. R. Co., 32 Barb. 25. So when the damages to be given are limited to an indemnity, the court may instruct the jury to find the particular items of damage and the sums applicable to each. Partridge v. Gilbert, 3 Duer, 184. The intent of parties is generally a question of fact for the jury. Horton v. Moot, 60 Barb. 27. And yet questions of intent need not necessarily be submitted to a jury. See Carnes v. Piatt, 1 Sweeny, 140 ; S. C, 38 How. 100 ; 7 Abb. N. S. 42. It is impossible to point out what particular questions should be submitted to a jury, beyond the general rule that all con- troverted facts upon which there is conflicting evidence should be so submitted. The questions of law that must be decided by 176 TRIAL BY JURY. The charge. the court have been already noticed, as have also the questions which must be decided under the discretion of the court. Section 27. The charge. a. In general. It is nearly an invariable practice for the court to charge the jury when the evidence is all in and the counsel on both sides have summed up. The purpose of a charge to the jury is to lay before them an impartial statement of the whole case. Generally the judge in his charge first states concisely the precise issue between the parties, the substance of the plaintiff's claim,- and the grounds of the defense ; and, sec- ondly, proceeds to review as fully as he may deem necessary the evidence which has been given on the trial, explaining its appli- cation to the points in issue. He may also attempt to reconcile the testimony when it is prima facie conflicting, or may sharply present the points of conflict in the testimony, and leave it for the jury to decide as to which of the witnesses is entitled to credit. See Jackson v. Packard, 6 Wend. 415. It is the duty of the court as well as of juries, to attempt to reconcile testimony apparently contradictory, if by any proper view it can be made consistent. Warren v. HdigM, 62 Barb. 490. The credibility of a witness is generally a question for. the jury, and it is seldom proper for the judge to instruct them that they have no right to believe a witness. Conrad v. Williams, 6 Hill, 444 ; Dunlop v. Patterson, 5 Cow. 243 ; Dunn v. People, 29 N. Y. (2 Tiff.) 523. But, on the other hand, it is in many cases both proper and necessary for the judge to instruct the jury as to the rules and principles which should guide them in determining questions of credibility. lb. Thus, it is not error for a judge to charge the jury, in an action for a conspiracy, that they may find for the plaintiff, against the defendants, on the evidence of an alleged accomplice, even though unsupported and uncorroborated, but at the same time instructing them as to the weight and value of such evidence, and the caution to be exercised in considering it. Ynguanzo v. Solomon, 3 Daly, 153 ; Royal Ins. Go. v. Nolle, 5 Abb. N. S. 54 ; Dunn v. People, 29 1ST. Y. (2 Tiff.) 523 ; People v. Dyle, 21 N. Y. (7 Smith) 578. So where it appears upon the trial, that a witness then examined has sworn differently upon the same point on a former occasion, the court should, in the charge, harmonize the statements if possible, and leave the question of credibility to the jury under proper instructions. Warren v. Haight, 62 Barb. 490. The judge TRIAL BY JURY. 177 The charge. should call the attention of the jury to the circumstances under which the apparently contradictory evidence was given ; to the influences under which such statements were made or obtained ; if made in writing, whether deliberately written by the witness himself, or whether prepared by another whose interest it was to have the statement in a particular form ; whether the statement was read and fully understood by the witness, or whether it was signed in the full confidence that it was right, upon the statement of another. lb. So where a witness has been impeached upon the trial, it is proper for the court to charge that an impeached witness may tell the truth ; but that he does not stand before the jury as one whose character had not been attacked, and that, if from his manner, the circumstances of the case, and the corroboration of other witnesses, the jury believe his statement, it will be competent for them to act upon his testimony ; and, on the other hand, they will be entirely justified in disregarding it. Lee v. Ghadsey, 2 Keyes, 543 ; S. C, 3 id. 225. So where the wit- ness' s relation of material facts is contradicted in one or more important particulars, about which he cannot be simply mis- taken, the judge may instruct the jury that they may disbelieve the whole of the statement of such witness or not, but cannot properly charge them, as a matter of law, that the evidence was not entitled to credit. WilMns v. Earle, 44 N. Y. (5 Hand) 172. The judge may properly criticise in his charge the testimony of a witness, or give his opinion as, to the proper interpretation, construction and effect of the language of the witness, unless the expression of such opinion will be prejudicial to one of the parties. Ynguanzo v. Solomon, 3 Daly, 153. The judge may charge the jury in a proper case, that if they believe the testimony of defendant' s witnesses, they must find a. verdict for the defendant. Downs v. Sprague, 2 Keyes, 57. So he may charge the jury that the omission of the party to pro- duce written evidence, admitted to be under his control, is a cir- cumstance from which they may pronounce against the party as to the facts of which such document would be evidence. Hager v. Hager, 38 Barb. 92 ; Sutton v. Sadler, 3 C. B. N. S. 87. So in an action for seduction, where the testimony is conflicting, the court may charge the jury that they have a righ't to consider evidence offered by the defendant tending to prove a want of Vol. Ill— 23 178 TRIAL BY JURY. The charge — Questions of fact — Discretion. chastity in the person alleged to be seduced, in connection with other evidence as bearing on the question of actual seduction. Hogan v. Cregan, 6 Rob. 138. o. Questions of fact. But while a judge may comment on the weight due to the testimony of witnesses, he will not gene- rally state to the jury his conclusions as to any questionable or disputed facts. Vedder v. Fellows, 20 N". Y. (6 Smith) 126. Yet, should he volunteer an opinion on a matter of fact, the judgment rendered in the action cannot, on that account, be reversed, provided the opinion was delivered as a mere opinion, and the jury were clearly informed and made to understand that the remarks of the judge were not made as a direction, but that they were to decide the fact. Vail v. Bice, 5 N. Y. (1 Seld.) 155 ; JSf. T. Firemen's Ins. Co. v. Walden,12 Johns. 513 ; Stettiner v. Granite Ins. Co., 5 Duer, 594 ; Head v. Hurd, 7 Wend. 408; Hager v. Hager, 38 Barb. 92 ; Altholf v. Wolf, 2 Hilt. 344 ; Bruce v. Westervett, 2 E. D. Smith, 440 ; DurTcee v. Marshall, 7 Wend. 312 ; Jackson v. Packard, 6 id. 415. The propriety, however, of the practice of expressing an opinion on a question of fact in a charge to a jury may be doubted, even where it is announced to the jury that the question is one of fact for their determination, and that should they not concur in the opinion expressed, they are at liberty to decide the reverse. In most instances the jury would concur with the expressed opinions of the court on a question of fact, and parties would in effect be deprived of their constitutional right to have their cases decided by a jury. Tedder v. Fellows, 20 N. Y. (6 Smith) 126. A judge cannot be required' to express an opinion as to a matter of fact, much less to charge as to a belief, where the evidence would not warrant him to decide the point. Moore v. Meacham, 10 N. Y. (6 Seld.) 207. A party who is dissatisfied with the expression of an opinion by a judge, on a question of fact, or the conclusion at which he arrives in regard to it, must express that dissatisfaction, not by excepting to the charge of the judge on that point, but by asking to have the question submitted to the jury for their determina- tion. Bows v. Bush, 28 Barb. 157 ; Games v. Piatt, 6 Rob. 270 ; Mallory v. Tioga B. B. Co., 36 How. 202 ; S. C, 1 Trans. App. 203 ; 3 Keyes, 354 ; 5 Abb. 1ST. S. 420. c. Discretion. As has been previously stated, the court is not bound, without the request of parties, to give any instructions to TRIAL BY JURY. 179 Bequests to charge. the jury ; and jurors are presumed to be acquainted with all the rules of law, in regard to which the parties do not request them to be instructed, or in regard to which the court does not instruct them. Haupt v. Pohlmann, 1 Rob. 121 ; S. C, 16 Abb. 301. See Oraser v. Stellwagen, 25 N. Y. (11 Smith) 315. d. Requests to charge. Whenever a party is dissatisfied with the charge of the court, on the ground that it is omissive, he should explicitly request the court to give what he deems to be the proper instructions to the jury. Harris v. Northern Indi- ana R. R. Co., 20 N. Y. (6 Smith) 232 ; Oraser v. Stellwagen, 25 N. Y. (11 Smith) 315. It is no error for the court to omit to pass upon a question of law jvhich was not submitted to him for decision, or to omit to instruct the jury upon a point concerning which no request for instruction was made. Atlantic Dock Co. v. City of Brooklyn, 3 Keyes, 444; S. C, 3 Trans. App. 305. So it is not error for the court to fail to submit to the jury a par- ticular question of fact, where he has not been requested to so submit it. Dows v. Rush, 28 Barb. 157 ; Mallory v. Tioga R. R. Co., 1 Trans. App. 203 ; S. C, 3 Keyes, 354 ; 36 How. 202 ; 5 Abb. N. S. 420 ; Schroff v. Bauer, 42 How. 348 ; Barnes v. Fer- ine, 12 N. Y. (2 Kern.) 18 ; Marine Bank of City of New York v. Clements, 31 N. Y. (4 Tiff.) 33. For this reason, if the judge, in his charge, assumes a fact to be proved, concerning which there is contradictory proof, or no proof at all, it is incumbent on counsel to call his attention to the matter at the time, in order that the error may be corrected. But if the judge incorrectly charges the law to the jury, and such error may have injuriously affected the party, and he has excepted thereto, the counsel for the party need not, in order to place himself in a'position to correct the error, request the judge to charge correct propositions, which are antagonistic to his charge, nor request him to submit matters of fact to the jury. Carnes v. Piatt, 6 Rob. 270. A request to charge the jury should be in such form that the court may charge, in the terms of the request, without qualifi- cation. Carpenter v. Slilwell, 11 N. Y. (1 Kern.) 61 ; Winchell v. Hicks, 18 N. Y. (4 Smith) 558 ; Keller v. N. T. Central R. R. Co., 24 How. 172 ; Bagley v. Smith, 10 N. Y. (6 Seld.) 489 ; S. C, 19 How. 1. A request to charge, if erroneous in part as embrac- ing too much, will be wholly unavailing. Hodges v. Cooper, 43 IS. Y. (4 Hand) 216. Thus, where a request to charge embraces 180 TRIAL BY JURY. Requests to charge. several propositions, distinct, though related, the judge will not be in error in refusing to adopt the whole, if there is any one of them which he might correctly refuse to charge. Willetts v. Sun Mutual Ins. Co., 45 &. Y. (6 Hand) 45. The court cannot be compelled to separate the several propositions, picking out and charging the good, and rejecting and refusing to charge only the bad. lb. ; Keller v. If. Y. Central P. P. Co., 24 How. 172 ; Car- penter v. Stilwell, 11 1ST. Y. (1 Kern.) 61. But where the different propositions are separately stated, a single request to charge is sufficient, and the judge should re- spond to each proposition, provided it presents a question of law bearing upon the evidence. But where the separate propositions are very numerous, and the charge covers generally the questions of law presented, the counsel should again call the attention of the judge to any proposition which he deems not fully answered. Zabriskie v. Smith, 13 JST. Y. (3 Kern.) 322. The party requesting the court to charge the jury as to a speci- fied proposition may be called upon to point out the evidence upon which the request is based ; and if the party cannot point out evidence which would warrant the jury to find facts without which the instructions requested would have no application to the case, the judge may properly refuse to charge as requested, although as an abstract proposition of law, the desired instruc- tions may be correct. Kiernan v. Pooheleau, 6 Bosw. 148. A court can never be called upon to charge upon an assumed state of facts not proved upon the trial. Pratt v. Ogden, 34 1ST. Y. (7 Tiff.) 20 ; Noakes v. People, 25 N". Y. (11 Smith) 380 ; City of New York v. Price, 5 Sandf. 542 ; Pushmore v. Hall, 12 Abb. 420. Where a party makes a proper request that the jury be charged that a certain proposition contains the true legal rule applicable to a given state of facts he is entitled to have the prop- osition given to the jury substantially as embodied in the re- quest, without any qualifications, or to have the request plainly refused. Wilds v. Hudson Piver P. P. Co., 24 N. Y. (10 Smith) 430 ; S. C, 23 How. 492 ; Warner v. If. Y. Central P. P. Co., 44 1ST. Y. (5 Hand) 465 ; Meyer v. Clark, 45 K Y. (6 Hand) 285. But it is not necessary that the charge of the judge should express the propositions in precisely the terms em- bodied in the request of the counsel, provided the charge con- tains substantially the propositions presented. Sherman v." TKIAL BY JURY. 181 Refusal to charge — Directing verdict. Wakeman, 11 Barb. 254 ; First Baptist Church in Brooklyn v. Brooklyn Fire Ins. Co., 23 How. 448 ; Williams v. Birch, 6 Bosw. 299. Nor is it necessary that the judge should charge the jury particularly as requested where he has previously charged them in substance as requested. Holbrook v. TJtica & Schenectady R. R. Co., 12 N. Y. (2 Kern.) 236 ; Decker v. Mathews, id. 313. In some cases it may be necessary to request the court to submit material questions of fact to the jury ; and an omission to make such request will entitle the court to decide them by directing a verdict. The cases in which such request is necessary will be considered hereafter. See " Directing Verdict," letter /, post. e. Refusal to charge. As has been previously stated, the judge may properly refuse to charge any matter that has been substantially charged already, or in respect to which no evidence has been given -on the trial. So he may properly refuse to charge, in accordance with a request which assumes as correct, either of two aspects of a case as presented by conflicting testi- mony. Watson v. Gray, 4 Keyes, 385 ; Le Roy v. Park Fire Ins. Co., 39 N. Y. (12 Tiff.) 56 ; S. C, 6 Trans. App. 316 ; Meyer v. Clark, 2 Daly, 497. So he may properly refuse to charge in accordance with a request, erroneous in part as embracing too much. Hodges v. Cooper, 43 N. Y. (4 Hand) 216. f. Directing verdict. The court is authorized to direct the jury to find a verdict for a party when there is no conflict in the evidence and no dispute about the facts, or where there is such a preponderance of evidence on one side that a verdict to the con- trary would be set aside as against evidence. Besson v. South- ard, 10 N. Y. (6 Seld.) 236 ; Herring v. Hoppock, 15 JST. Y. (1 Smith) 409 ; Porter v. Havens, 37 Barb. 343 ; Codin v. Bank ' of the Commonwealth, 6 Duer, 76 ; Moore v. Westervelt, 1 Bosw. 357 ; Goelet v. Ross, 15 Abb. 251. In certain cases, also, the court will be justified in directing the jury to find a verdict for a party, and thus decide the issues involved, even where the evidence presented on the trial is con- flicting, and the questions of fact are such as might properly be submitted to the jury, if either party had expressly requested that such facts be so submitted. Thus, where a defendant, at the close of the evidence, moves for a nonsuit upon the facts assumed to have been established by the evidence, the defendant assumes by the position taken, that there are no disputed facts to be 182 TRIAL BY JURY. Directing verdict — Exceptions to charge or refusal. determined by the jury, but that questions of law only are in- volved, the decision of which will determine the rights of the parties. If the facts presented on the trial will warrant it, the court, on denying the motion for a nonsuit, may properly direct a verdict for the plaintiff, unless the counsel for the defendant expressly requests the court to submit the question of fact to the jury. In the absence of such request an exception to the direc- tion of the judge will be insufficient to raise the question for review in an appellate court, Oraser v. Stellwagen, 25 N". Y. (11 Smith) 315 ; O Weill v. James, 43 K Y. (4 Hand) 84 ; Barnes y.Perine, 12 N. Y. (2 Kern.) 18; Winchell v. Hicks, 18KT. (4 Smith) 558. But where the parties have done nothing to in- duce the belief that there is no question of fact involved, the court will not be justified in directing a verdict, unless in the cases before mentioned where there is no conflict of evidence, or where there is such a preponderance of evidence on one side that a verdict to the contrary would be set aside as against evi- dence. See Stone v. Flower, 47 N. Y. (2 Sick.) 566 ; Sheldon v. Atlantic Fire & Marine Ins. Co., 26 N". Y. (12 Smith) 460. g. Exceptions to charge or refusal. It is important that a party prejudiced by the charge should raise his objections thereto in such a manner as to entitle him to a review of the matter in the appellate court. The proper mode of raising these objections is by exceptions to the charge or refusal to charge. A general exception to a charge containing distinct propo- sitions is unavailing, unless the party excepting can show that each proposition is erroneous to his prejudice. Haggart v. Mor- gan, 5 N. Y. (1 Seld.) 422 ; Stone v. Western Transportation Co., 38 N. Y. (11 Tiff.) 240 ; S. C, 7 Trans. App. 223 ; Coughlan v. Dinsmore, 4 id. 386; S. C, 35 How. 416. An exception to the whole and to each and every part of a charge is equally unavail- ing, if any part of the charge is correct. Jones v. Osgood, 6 K Y. (2 Seld.) 233 ; Caldwell v. Murphy, 11 TS. Y. (1 Kern.) 416. The same rule applies to a general exception to an entire charge, so far as it does not conform to several written requests pre- viously handed up, whether the exception is intended to reach portions of the charge as made, or a failure to charge all the propositions as requested. Requa v. City of Rochester, 45 N". Y. (6 Hand) 129 ; Walsh v. Kelly, 40 N. Y. (1 Hand) 556 ; Cham- berlain v. Pratt, 33 M". Y. (6 Tiff.) 47. In order to make a valid exception to a failure to charge any TRIAL BY JURY. 183 Exceptions to charge or refusal. one or more of a series of propositions handed up to the judge with a request to charge, it is the duty of the counsel, at the close of the charge, to call the attention of the court to any one of the requests as to which he desires more specific or different instructions. Walsh v. Kelly, 40 N. Y. (1 Hand) 556 ; Requa v. City of Rochester, 45 N. Y. (6 Hand) 129. The oflBce of an exception is to point out some specific error in law ; and the counsel should, by his exception, lay his finger upon the pre- cise request refused, or the error in the charge, not only that the court may, upon the error being pointed out, correct it, but also that the appellate court may not be left to spell out and dig up errors, which, after they are discovered, are more apparent than real, and may have arisen from mere inadvertence, or a misap- prehension upon the trial. Ayrault v. Pacific Bank, 47 N. Y. (2 Sick.) 570. An exception to a single word in a sentence of a judge's charge, which has no bearing upon any issue or question in the case, will not be allowed or entertained. Raynor v. Timer son, 51 Barb. 517. If the judge in his charge to the jury states the law incor- rectly, and such error injuriously affects a party who excepts thereto, it is not necessary that the party should request the judge to charge correct propositions, which are the converse of those charged, in order to present the question in a position for review by the appellate court. An exception to the objection- able part of the charge will be sufficient to present the question on appeal. Carnes v. Piatt, 6 Rob. 270. When the objection is so presented, a verdict for the adverse party must be set aside, unless it is shown that the error did not and could not have affected the verdict. It is not for the party excepting to show how he was prejudiced by the error ; but it is for the party in whose favor the verdict was rendered to show that no injury could possibly have arisen from it. Greene v. White, 37 N. Y. (10 Tiff.) 405 ; S. C, 4 Trans. App. 382. When a request that a matter of fact be submitted to the jury is necessary to a review of the direction of a verdict by the court, and where an exception to such direction is equally effica- cious has been already discussed. See p. 179, 180, 182, ante; and see Stone v. Flower, 47 N. Y. (2 Sick.) 566 ; 0' Weill v. James, 43 N. Y. (4 Hand) 84; Graser v. Stellwagen, 25 N. Y. (11 Smith) 315 ; Barnes v. Perine, 12 JS". Y. (2 Kern.) 18. 184 TEIAL BY JURY. Consultations of jury. Section 28. Consultations of jury. a. In general. After the judge has charged the jury, they should proceed to consult upon their verdict. If they are al- ready unanimous as to their verdict, they may render it at once without retiring from the court ; or if they cannot agree at once they may retire to some convenient place in charge of an- officer who is sworn to keep them without any intermission, refresh- ment, fire or light, except such as may be allowed by the court, and without any communication with any other person, until they shall have agreed upon their verdict or shall be discharged. On retiring to the jury room, the court may, in its discretion, with or without the consent of parties, allow the jury to take with them any documentary evidence given on the trial. How- land v. Willetts, 9 N. Y. (5 Seld.) 170 ; Porter v. Mount, 45 Barb. 422 ; Schappner v. Second Avenue R. R. Co., 55 id. 497. So, if the jury take with them on retiring to deliberate on their verdict a paper which has not been put in evidence, their ver- dict will not on that account be set aside if it appears that their verdict was not influenced thereby. Schappner v. Second Avenue R. R. Co., 55 Barb. 497. See Merritt v. Brinlcerhoff, 17 Johns. 306 ; Hackley v. Hastie, 3 id. 252. It is only by general consent, if at all, that the jury may properly take to the jury room, on retiring to deliberate on their verdict, the minutes of the testimony taken by the counsel for either party, or even the minutes of the judge. Durfee v. Ike- land, 8 Barb. 46 ; Neil v. Abel, 24 Wend. 185. In a justice's court, it is customary and allowable for the jus- tice, at the request of the jury, to visit them in the jury room, for the purpose of giving them further instructions, provided he is accompanied by the counsel for all the parties, or is expressly authorized by them to visit the jury alone. Thayer v. Van Vleet, 5 Johns. Ill ; Taylor v. Betsford, 13 id. 487; Whitney v. Orim, 1 Hill, 61 ; Moody v. Pomeroy, 4 Denio, 115 ; Herilow v. Leonard, 7 Johns. 200. But in no case can the justice hold any communication with the jury in the absence and without the ex- press consent of counsel, unless, perhaps, in cases where the justice has invited them to accompany him and they have refused. lb. See Rogers v. Moulthrop, 13 Wend. 274. In courts of record, however, it is neither customary nor allow- able for the judge to hold any communication with the jury in their retirement, whether by letter or otherwise. If they desire TRIAL BY JURY. 185 Persuading to agree — Mode of determination. further instructions, he should order them to be brought into court, and there instruct them in the presence of counsel. Sar- gent v. Roberts, 18 Mass. (1 Pick.) 337 ; State v. Frisby, 19 La. An. 143 ; Gholston v. Gholston, 31 Ga. 625 ; Qrdbtree v. Hagen- baug7i, 23 111. 349 ; Fish v. Smith, 12 Ind. 563. b. Persuading to agree. It is proper that the judge, after the labor and expense of a trial, should endeavor, by all legiti- mate means, to secure a verdict. To this end he may properly urge the jury to engage in their deliberation in a spirit of liberal concession. He may properly explain to them the theory of the trial by jury ; that its object is to give the parties the united judgment of twelve minds upon the questions at issue between them. He may properly invite their attention to the importance, both to the parties and to the public, of their agreeing upon a ver- dict, that thus the time and expense of a re-trial may be saved. These and other kindred considerations may, and frequently ought to be urged upon the consideration of the jury, to induce them to make an honest and faithful effort to bring their minds together and thus agree upon a verdict. Green v. Telfair, 11 How. 260. He may properly instruct them that the questions sub- mitted to them for determination are not difficult, and to a reason- able extent urge an agreement. Caldwell v. New Jersey Steam- boat Go., 47 N. Y. (2 Sick.) 282. But an attempt to influence the jury, by referring to the time they are to be kept together, or the inconvenience to which they are to be subjected, in case they shall be so pertinacious as to adhere to their individual opinions, and thus continue to disagree, is unjustifiable. A judge has no right to threaten or intimidate a jury, in order to affect their deliberations, or to allude to his purposes as to the length of time they are to be kept together. There must be nothing in his intercourse with the jury having the least appearance of duress or coercion. Green v. Telfair, 11 How. 260. The remedy of the parties against an abuse of the dis- cretion of the court in these particulars is by motion to set aside the verdict, and not by exception and appeal. Caldwell v. New Jersey Steamboat Co., 47 TS. Y. (2 Sick.) 282. c. Mode of determination. The verdict of a jury is in the theory of the law, if not in fact, the result of the intelligent exercise of the reasoning powers and judgment of twelve men ; and the law will not tolerate any verdict which, from the mode in which it was found, could not be the result of either. Vol. III. —24 186 TEIAL BY JURY. Mode of determination — Keeping jury together. Thus, a jury will not be allowed to decide by lot in favor of which party their verdict shall be given. Mitchell v. Ehle, 10 Wend. 595 ; Thompson v. Perkins, 26 Iowa, 486 ; Rdble v. McDonald, 7 Clarke, 90 ; E Hedge v. Todd, 1 Humph. 431 ; Par- ham v. Harney, 6 Sm. & M. 55. Neither will they be allowed to assess damages by marking down the amount which each deems proper, and dividing the sum total by twelve. Roberts v. Failis, 1 Cow. 238 ; Harney v. Rickett, 15 Johns. 87 ; Smith v. Gheetham, '6 Cai. 57. Neither will the jury be allowed to arrive at the value of property by taking an arithmetical aver- age of the sums at which it was estimated by the witnesses. Thomas v. Dickinson, 12 1ST. Y. (2 Kern.) 364. But if the jury, without agreeing to abide by the result, take an average of the amount of damage which each juror deems equitable as between the parties, and they afterward, individu- ally, agree upon the result so obtained as their verdict, the ver- dict may be allowed to stand. Dana v. Tucker^ 4 Johns. 487 ; Conklin v. Hill, 2 How. 6. See Illinois & Mississippi Tele- graph Co., 20 Iowa, 195 ; HendricJcson v. Kingsbury, 21 id. 379. d. Keeping jury together. From the time the jury are charged and retire to deliberate, until they render their verdict in court, they cannot properly separate, but, on the contrary, should be kept together by the officer having them in charge. A separation of the jury before rendering their verdict, although clearly irregular and a contempt of court, will not of itself vitiate their verdict. If there is no ground for suspicion that the irregularity has prej udiced either party, the verdict will not be set aside ; but if, on the other hand, there is the slightest ground for such suspicion, the verdict will be set aside. Smith v. Thompson, 1 Cow. 221 ; Anthony v. Smith, 4 Bosw. 503 ; Ex parte Hill, 3 Cow. 355 ; People v. Ransom, 7 Wend. 417, 423 ; Douglass v. Tousey, 2 id. 352 ; Oliver v. Trustees of First Presbyterian Church, 5 Cow. 283 ; Horton v. Horton, 2 id. 589. If one of the jury happens to be taken suddenly ill, so as to be incapable of remaining until the verdict is agreed on, the court may discharge that jury and charge another with the cause. Rex v. Edwards, 4 Taunt. 309 ; S. C, 3 Camp. 207. The length of time during which a jury may be kept together for the purpose of agreement, as well as whether they shall be allowed to separate, whether they shall be allowed refreshments, TRIAL BY JURY. ' 187 Keeping jury together — Misconduct of the jury. or whether they may bring in a sealed verdict, are matters rest- ing in the discretion of the court, and for any abuse in the exer- cise of this discretion, redress may be obtained by a motion to set aside the verdict as for misconduct of the jury. Caldwell v. New Jersey Steamboat Co., 47 N. Y. (2 Sick.) 282. As long as there is a reasonable prospect, in the judgment of the judge, of a final agreement of the jury, he may properly keep them together ; but beyond this he is not at liberty to go. Green v. Telfair, 11 How. 260. e. Misconduct of the jury. It was formerly held that the mere fact of drinking spirituous liquors by a juror, during the pro- gress of a trial, was sufficient per se to warrant the setting aside of the verdict. Brant v. Fowler, 7 Cow. 562. The rule thus established by the earlier courts has, however, been abrogated, and the extreme severity of the old rules, in regard to the setting aside of verdicts on account of technical misconduct on the part of the jury, materially relaxed. Under the present practice it is not every irregularity of a juror which will overturn the verdict, whether the irregularity con- sists in the drinking of spirituous liquors, separation without leave, or the like, unless there is some reason to suspect that the irregularity" may have had some influence on the final result of the cause. Wilson v. Abrahams, 1 Hill, 207. The fact that jurors eat or drink at their own expense is no ground for dis- turbing their verdict, although it would be otherwise if they ate or drank at the expense of the successful party. lb. The least intermeddling or improper interference with the jury, or any of them, by a party during the trial, will vitiate the ver- dict, if rendered in his favor. Reynolds v. Ohamplain Trans- portation Co., 9 How. 7 ; Knight, v. Inhabitants of Freeport, 13 Mass. 218. But the rule is different where the interference comes from any person other than the successful party. Thus, where the officer having the jury in charge endeavors to induce them to agree upon a verdict in favor of the successful party, this direct interference will not be a sufficient ground for setting aside a ver- dict. Baker v. Simmons, 29 Barb. 198. See Thomas v. Chap- man, 45 id. 98. So the officious intermeddling of strangers to the suit will not have the effect of vitiating the verdict. Eager v. Eager, 38 Barb. 92. See Taylor v. Everett, 2 How. 23. On motion to set aside the verdict of a jury for misconduct, the evidence must be derived from the affidavits of persons other 188 TEIAL BY JUKY. Failure to agree — General verdict — When proper. than the jurors ; for, while the affi davit of a juror may be re- ceived in support of his verdict, it will not be received to impeach it. Green v. Bliss, 12 How. 428 ; Glum v. Smith, 5 Hill, 560 ; Dana v. Tucker, 4 Johns. 487. But, on a motion to set aside a verdict for misconduct on the part of the plaintiff, the affidavits of the jurors may be received to show the improper conduct. Reynolds v. Ohamplain Transportation Co., 9 How. 7 ; Thomas v. Chapman, 45 Barb. 98. f. Failure to agree. The Revised Statutes provide that when any jury shall be impaneled to try any issue, to make an inquiry, or to assess any damages, if they cannot agree after being kept together for such a time as shall be deemed reason- able by the court or officer before whom they shall have appeared and been impaneled, such court or officer may discharge them and issue a precept for a new jury, or order another jury to be drawn, as the case may require ; and the same proceedings shall be had before such new jury as might have been had before the jury so discharged. 2 R. S. 554 (575), § 26. Section 29. General verdict. a. In general. The verdict of the jury may be either general or special. A general verdict is that by which the jury pro- nounce generally upon all or any of the issues, either in favor of the plaintiff or the defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. Code, § 260. o. When proper. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or a special verdict. But in all other cases the court may direct the jury to find a special verdict, in writing, upon all or any of the issues ; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a writ- ten finding thereon. Code, § 261. If the jury bring in a general verdict, together with a written finding upon particular questions of fact, and such special find- ing is inconsistent with the general verdict, the special finding will control the general verdict, and the court will give judgment accordingly. Code, § 262 ; Fraschieris v. Henriques, 6 Abb. N. S. 251. A general verdict will be proper, in actions to recover the pos- session of personal property and damages for its detention: TRIAL BY JURY. 189 General verdict — Requisites of — Separate damages. 1st. Where there has not been a delivery of the property to the plaintiff, and the answer does not deny the value of the prop- erty as stated in the complaint : 2d. Where the property has been delivered to the plaintiff, and the answer does not claim a re- delivery. Archer v. Boudinet, 1 Code R. N. S. 372 ; Tracy v. New TorTc & Harlem R. R. Co., 9 Bosw. 396. c. Requisites of. The general verdict of a jury must be one in which all the issues are pronounced upon generally, either in favor of the plaintiff or the defendant. See Code, § 260. A verdict which does not determine the right of the plaintiff to recover is not a general verdict. Manning v. MonagJian, 23 N. Y. (9 Smith) 539. While a general verdict must decide all the issues in the cause, if the finding upon one issue necessarily disposes of another, no express finding upon the latter is necessary. See Law v. Merrills, 6 Wend. 268. Where there are several issues, some may be found for the plaintiff and others for the defendant. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established beyond the amount of the plaintiff's claim as established, the jury must assess the amount of the recovery. Code, § 263. The findings in the verdict must be direct, and not evasive or argumentative. See Freeman v. People, 4 Denio, 9, 30. d. Separate damages. In an action against several defend- ants on a joint demand, if one suffers default and the plaintiff succeeds against those who answer, the jury must assess dam- ages against all. Van Schaick v. Trotter, 6 Cow. 599. But if he fails to show that he is entitled to recover against the defend- ants who have answered, he can have such assessment against those only who did not answer. Sluyter v. Smith, 2 Bosw. 673 ; Cotton v. Latson, 4 Abb. 248 ; S. C, 13 How. 511. Under the English practice, the jury in ah action of trespass against several defendants jointly may find one of them guilty of the trespass at one time and the remainder at another. Heydon' s Case, 11 Co. 5. So the jury may find one defendant guilty of one part of the trespass, and another of another. Player v. Warn, Cro. Car. 54. So the jury may find some guilty of the whole trespass and others of a part only ; in all of which cases the jury may assess several damages. lb. ; 1 Archb. Pr. 219. But under the practice in this State, the damages in actions 190 TRIAL BY JURY. Submitting specific questions. for a tort, against two or more defendants are not divisible ; and should the jury erroneously assess different amounts against the defendants, the plaintiff may have judgment against all who are convicted, for the largest amount found against any one. Beat v. Finch, 11 1ST. Y. (1 Kern.) 128 ; S. C, 9 How. 385 ; 0? Shea v. Kirker, 8 Abb. 69 ; S. C, 4 Bosw. 120. See Turner v. McCarthy, 4 E. D. Smith, 247. e. Submitting specific questions. The Code provides that in every action for the recovery of money only, or specific real proper ty s the jury in their discretion may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing, upon all or any of the issues ; and in all cases may instruct them, if they render a general ver- dict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. Code, § 261. The object of this provision of the Code has been heretofore discussed. See p. 166, 167, ante. As the Code gives to a special finding of facts by a jury the power of controlling a general verdict, if the two are incon- sistent, and as it requires the court to give judgment according to the facts found, the general verdict, as regards the particular questions submitted, becomes a mere matter of form. It is, in fact, merely a mode of having exceptions to the charge argued and carefully decided on a fuller examination than can be given them on the trial, without the necessity of a new trial in case of a mistake. As the general verdict may be inconsistent with the special findings, the clerk cannot enter up judgment thereon, as he can- not determine what judgment is to be entered. Requiring a jury to answer specially, is, therefore, such a different direction, as to prevent the clerk from entering judgment according to the general verdict, under section 264 of the Code. Such judgment must be specially applied for, in order to determine such inconsistency and its extent. Moss v. Priest, 1 Rob. 632 ; S. C, 19 Abb. 314. But the rendering of a general verdict by the jury, and its reception by the court without objection, either by the judge or the parties, is good, notwithstanding the failure of the jury to find upon certain special questions of fact upon which the court, in the course of its charge, directed them to find. lb. So if the special findings are given orally, instead of in writ- ing as directed, by the Code, the verdict will be allowed to stand TRIAL BY JURY. 191 Submitting specific questions — Damages. although inconsistent with the answers given to the questions of fact submitted. lb. If a general verdict is correct in all other respects it will not be set aside merely because the court should take a finding from the jury upon a matter which was in truth irrelevant, and which could not influence the general verdict, or the finding upon the other questions. Forrest v. Forrest, 6 Duer, 102. The answers to the questions submitted to the jury must be filed with the clerk and entered upon his minutes. Code, § 261. f. Damages. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established in excess of the plaintiff's demand as proved, the jury must assess the amount of the recovery. They may also, under the direction of the court, assess the amount of the recovery when the court gives judgment for the plaintiff on the answer. Code, § 263. In assessing the damages, the jury, in their verdict, should not award a larger amount than is claimed by the complaint ; as, in case a larger amount is awarded, the clerk should enter the ver- dict for only the amount claimed. Barber v. Hose, 5 Hill, 76. But, in case the verdict is entered for more than the sum claimed, the plaintiff may remit the excess, and take judgment for the amount claimed. lb. ; Coming v. Corning, 6 1ST. Y. (2 Seld.) 97; Bowman v. Earle, 3- Duer, 691. As to the terms im- posed upon allowing an amendment, so that the complaint may claim the amount of the verdict. lb. In actions where double and treble damages may be recovered, if the jury find generally for the plaintiff, they should assess single damages, leaving it for the court to double or treble the damages as the case may require. Dubois v. Beaver, 25 N. Y. (11 Smith) 123 ; Livingston v. Plainer, 1 Cow. 175 ; King v. Havens, 25 Wend. 420 ; JVewcomb v. Butterfleld, 8 Johns. 342. The jury may, in proper cases, allow interest as a part of the damages assessed. Interest is, as a general rule, allowable in all actions on contract where the amount of the demand and the time when the same became payable is fixed by the terms of the contract. Interest is not allowable, as a general rule, on unliquidated demands. In actions of tort, the allowance of interest from the time of bringing the action, upon the items of damage sustained by the plaintiff, is within the discretion of the 192 TRIAL BY JURY. In replevin — Oral verdict — Sealed verdict. jury. Walrath v. Redfteld, 18 N". Y. (4 Smith) 457. As to the allowance of interest generally, see Wait's Code, 466, 467. g. In replevin. In an action for the recovery of specific per- sonal property, if the property has not been delivered to the plaintiff, or if the defendant, by his answer, claim a return thereof, the jury are required to assess the value of the property, if their verdict is in favor of the plaintiff; or, if they find in favor of the defendant, and that he is entitled to a return thereof. The jury may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sus- tained by reason of the detention, or of the taking and with- holding such property. Code, § 261. 7i. Oral verdict. When the jury return to the bar, if they have retired to consider their verdict, their names are called over, and they are asked if they have agreed upon their verdict, and whether they find for the plaintiff or the defendant. The foreman of the jury, in the presence and hearing of the remainder of the jurors, then delivers the verdict. The verdict may be oral or in writing. But, except where the jury have been directed to bring in a sealed verdict, or where specific questions of fact have been submitted to them for their decision, an oral verdict is usu- ally rendered. In proper cases the court may direct the ver- dict, and, when this is done, the jury, without leaving the bar, deliver their verdict in accordance with the directions of the court. i. Sealed verdict. "Where the jurors are unable to agree upon their verdict before the adjournment of the court for the day, the judge may direct the jury to return a sealed verdict. When this direction is given, the jury, upon agreeing upon their ver- dict, reduce it to writing, seal it, and deliver it to the officer hav- ing them in charge. The jury may then separate, without await- ing the re-opening of the court. The judge may in all cases direct the jury to bring in a sealed verdict, in the absence of objection by the counsel for the par- ties. Douglass v. Tousey, 2 Wend. 352. . The consent of the par- ties to this direction is not essential. Green v. Bliss, 12 How. 428. In effect, a sealed verdict is no more valid or conclusive than an oral one. After it has been signed by all the jurors, any one of them may render it a nullity by dissenting from it at any TRIAL BY JURY. 193 Rendition of the verdict — Alteration and correction of verdict. time before it is entered. Root v. Sherwood-, 6 Johns. 68. See Green v. Bliss, 12 How. 428. j. Rendition of the verdict. The mode of rendering a verdict has been already noticed. See ante, 192. The verdict, whether oral or sealed, must be delivered by the foreman of the jury, and in the presence of all the jurors. Root v. Sherwood, 6 Johns. 68. A verdict otherwise given is a nullity. lb. If, when the verdict is announced, any of the jury dissent, the verdict rendered will be of no effect. lb. Tc. Alteration and correction of verdict. Even after the jury have returned to the bar, and the foreman has pronounced their verdict, they may alter and correct it at any time before it has been received and recorded. BlacTcley v. Sheldon, 7 Johns. 32. In case of manifest mistake, the court may also send a jury back to reconsider their verdict before it is recorded. lb. Where there is only one issue, and the intention of the jury to find for the plaintiff is manifest, the court will, in case of mis- take by them, correct their verdict by making it conform to their finding, and give judgment upon it accordingly. Wells v. Cox, 1 Daly, 515. So where there are two issues, and one has been disposed of by the judge, and the other has been submitted to the jury, and the jury evidently intended to pass upon both issues, the court may properly amend or correct their verdict, if it does not cover both issues as intended, by making it conform to the facts. Bur- hans v. TibMts, 7 How. 21. The right to correct the verdict in such cases exists only where there is no doubt as to the facts ; and if the slightest doubt exists as to, what transpired on the trial, or if any exist whether the whole case has been disposed of by the court and the jury, the verdict will be vacated on motion. lb. Where the jury, in addition to their general verdict, find upon specific questions of fact, and the special finding of facts is in- consistent with the general verdict, the special finding must con- trol, and the court must give judgment accordingly. Code, § 262. But inconsistency between the general verdict and the special findings of the jury will not authorize the judge at the circuit to direct that a verdict for one party be changed to a verdict for the other. United States Trust Co. v. Harris, 2 Bosw. 75 ; Brush v. Kohn, 9 id. 589 ; S. C, 14 Abb. 51. I. Polling the jury. When the foreman has delivered the Vol. III.— 25 194 TRIAL BY JURY. Entry of verdict — Conclusiveness of verdict. verdict of the jury, whether the same is sealed or oral, either party may require that the jury be polled as an absolute right. Lobar v. Koplin, 4 N. Y. (4 Oomst.) 547. The object of polling a jury is to ascertain if the verdict which has just been presented or announced by their foreman is their verdict, or, in other words, if they still agree to it. The jury is polled by the clerk, who, as he calls over the list of jurors, asks them one by one, or by the poll, the question, " Is this your ver- dict 1" The party has no right to dictate as to the manner in which a jury should be polled, or to insist on any other question being put to them than the one to ascertain whether they agree to the verdict as presented. lb. If each juror, on being polled, does not say that the verdict is his, the counsel for the unsuccessful party should call the atten- tion of the court to the fact, otherwise he will waive the right to raise the objection. Green v. Bliss, 12 How. 428. If, on the jury being polled, any of them dissent from the ver- dict, they may be sent out again for further deliberation. Doug- lass v. Tousey, 2 Wend. 352 ; Bunn v. Hoyt, 3 Johns. 255. m. Entry of verdict. Upon receiving the verdict the clerk is required to make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. Code, § 264. The special findings of fact, if. any specific ques- tions have been submitted to the jury, must be filed with the clerk and entered upon the minutes. Code, § 261. Having made the proper entry upon his minutes, the clerk calls upon the jury to hearken to their verdict as recorded by the court, and thereupon reads the verdict, adding, " And so say you all? " No dissent to the verdict can be made by a juror thereafter. n. Conclusiveness of verdict. It is a general rule that the verdict of a jury is conclusive upon the question of fact sub- mitted to them, if there is any evidence to support it. Miller v. Lock-wood, 32 1ST. Y. (5 Tiff.) 293 ; Ward v. Perrin, 54 Barb. 89; Hyatt v. Trustees of the Village of Rondout, 44 id. 385 ; Fleming v. Smith, id. 554 ; O JEara v. Brophy, 24 How. 379 ; Sheldon v. Stryker, 27 id. 387 ; S. C, 42 Barb. 284. It is also an intendment of the law that a verdict settles in favor of the prevailing party every question of fact litigated upon the trial. Wolfe v. Goodhue Fire Ins. Co., 43 Barb. 400 ; Van Pelt v. Otter, TRIAL BY JURY. 195 Assignment of verdict — Special verdict. 2 Sweeny, 202. But a verdict, which is manifestly unsupported by evidence, is in no sense conclusive and may be set aside. Suydam v. Grand Street & Newton R. R. Co., 41 Barb. 375 ; S. C, 17 Abb. 304 ; Deming v. Bailey, 10 Bosw. 258 ; Jacopsohn v. Belmont, 7 id. 14. The rule is, that if, upon the whole evi- dence, it would have been proper at the trial to have taken the case from the jury and directed a verdict, then the court will set the verdict aside if found against what such direction should have been. Barrett v. Third Avenue R. R. Co., 1 Sweeny, 568 ; S. C, 8 Abb. N. S. 205. o. Assignment of verdict. The prevailing party in an action at law may, before judgment, assign the verdict obtained by him, together with the judgment to be entered thereon. Mackey v. Mackey, 43 Barb. 58 ; Ferguson v. Bassett, 4 How. 168 ; Coun- tryman v. Boyer, 3 id. 386 ; S. C, 2 Code R. 4 ; Nash v. Hamil- ton, 3 Abb. 35. A judgment cannot be set off against a mere verdict, before judgment has been entered thereon ; and where such verdict has been assigned before judgment, and the party against whom it was rendered has had notice of that fact, no judgment can be set off against the judgment entered on such verdict. lb. p. Setting aside verdict. The judge who tries a cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial, upon exceptions, or for insufficient evidence, or for excessive damages. But such motion can only be heard at the same term or circuit at which the trial is had. Code, § 264. For the cases in which a verdict will be set aside and a new trial ordered. See New Trials. q. Errors cured by verdict. See New Trials. Section 30. Special verdict. a. In general. The Code defines a special verdict as that by which the jury find the facts only, leaving the judgment to the court. Code, § 260. A mixed verdict, or a verdict in which special matter follows or is followed by general matter, is, in effect, substantially a special verdict, as in case of inconsistency between the general and the special finding, the latter controls. Code, § 262 ; Fraschieris v. Eenriques, 6 Abb. N. S. 251. In certain cases the Code leaves it to the discretion of the jury whether they will render a general or a special verdict. But this right of election exists in actions for the recovery of money 196 TRIAL BY JURY. Special verdict — How prepared. only, or specific real property. In all other cases the court may require the jury to find a special verdict, in writing, upon all or any of the issues. Code, § 261. The Code has made no alteration in the requisites of a special verdict. Eisemann v. Swan, 6 Bosw. 668 ; Williams v. Willis, 7 Abb. 90 ; FrascMeris v. Henriques, 6 Abb. N. S. 251. The ver- dict must present the conclusions of fact as established by the evidence, and not the evidence to prove them ; and those con- clusions of fact must be so presented that nothing remains for the court but to draw the conclusions of law. Langley v. Warner, 3 1ST. Y. (3 Comsfc.) 327 ; Sisson v. Barrett, 2 K Y. (2 Comst.) 406 ; Hill v. Covell, 1 N. Y. (1 Comst.) 522 ; Seward v. Jackson, 8 Cow. 406. A special verdict should find facts and not leave them to be made out by argument and inference. BircTchead v. Brown, 5 Hill, 634. See Freeman v. People, 4 Denio, 9, 30. If the jury find the evidence merely, without stating their own conclusions, a new trial will be necessary. But if, on mixed questions of law and fact, the jury find facts from which the court can draw clear con- clusions, it is no objection to the verdict, that the jury have not themselves drawn such conclusions and stated them as facts. Seward v. Jackson, 8 Cow. 406. The special verdict must find all the facts which are requisite to enable the court to say, upon the pleadings and verdict, with- out looking into the evidence, which party is by law entitled to judgment. Eisemann v. Swan, 6 Bosw. 668. A special ver- dict need not, however, find facts admitted by the pleadings. Barto v. Himrod, 8 1ST. Y. (4 Seld.) 483. Nor is it necessary for the jury to find the negative of a fact which will not be pre- sumed except it be found by the verdict. Rogers v. Eagle Fire Co. of New York, 9 Wend. 611, 625. The verdict should not be in effect a record of the proceedings on the trial, nor should it in any way allude to the attendance of the parties, the verification of the pleadings, or the sufficiency of the evidence. Powell v. Waters, 8 Cow. 669 ; Richmond v. Tallmadge, 16 Johns. 307 ; Merwan v. Ingersol, 3 Cow. 367. b. How prepared. It is not customary to prepare a special verdict in its ultimate form at the trial, but to submit to the jury a rough draft of the issues of fact which they are required to decide, and to make a minute of their answers thereto. The verdict must subsequently be settled by the judge, in the TRIAL BY JURY. 197 Construction — Amendment — Stay of proceedings. following manner : The party intending to move for judgment on the verdict must prepare it in a suitable form, and serve a copy upon the adverse party within ten days after the trial. The' adverse party may, within ten days thereafter, propose amendments thereto and serve a copy on the moving party, who may, within four days thereafter, serve the opposite party with a notice that the verdict, with the amendments, will be submit- ted at a specified time and place to the justice who tried the cause, for settlement. Rule 41, Sup. Ct. A failure on the part of one to propose amendments, or on the part of the other to notify an appearance, before the justice, will respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. Rule 42, Sup. Ct. The party preparing the verdict must, before submitting the same to the judge or justice for settlement, mark upon the several amendments his proposed allowance or disallowance. Rule 43, Sup. Ct. The verdict, when settled, must be filed with the clerk and entered upon the minutes. Code, § 261. See Rule 44, Sup. Ct. c. Construction. In construing a special verdict, the court will keep in mind the issues made by the pleadings ; and a fact found by a special verdict, which would be a bar to a recovery, or defeat a defense if properly pleaded, will be disregarded by the court in rendering judgment, if such fact does not properly arise under the issue joined. McQarty v. Hudson, 24 Wend. 291 ; Richmond v. Tallmadge, 16 Johns. 307. d. Amendment. The court has power, under section 173 of the Code, to correct a mistake committed by the jury in their verdict, or to disregard any defect in the verdict under the pro- visions of section 176 of the Code. The power of the court to amend a verdict does not, however, extend to errors in matters of substance. United States Trust Co. v. Harris, 2 Bosw. 75. But in rare cases the court has exercised its power to correct a verdict by amendment as has been already noticed. See " Correction and Alteration of Ver- dict," ante, p. 193, 194. e. Stay of proceedings. It can seldom be necessary to obtain a stay of proceedings where a special verdict has been rendered by the jury, as judgment cannot be regularly entered thereon without an order of the court, and during the consequent delay 198 TRIAL BY JURY. Bringing on argument — Argument — Verdict subject to opinion of court. the unsuccessful party may take such action as may be deemed proper. Should, however, a stay be deemed necessary it may be obtained in the mode described in a preceding volume. See vol. 2, p. 622. f. Bringing on argument. A motion for judgment on a special verdict is an enumerated motion (Rule 47, Sup. Ct.), and must in the first instance be heard and decided at the circuit or special term. Code, § 265 ; Gilbert v. Beach, 16 N".. Y. (2 Smith) 606 ; Manning v. Monaghan, 23 N. Y. (9 Smith) 539. The motion must be noticed for the first day of the term. Rule 49, Sup. Ct. The notice to be given is the ordinary notice of motion and may be served by either party. But in all cases the plaintiff must furnish the defendant, at least eight days before the argument, with a copy of the special verdict. Rule 49, Sup. Ct. A copy of the verdict and the pleadings should also be furnished for- the court. lb. If the plaintiff neglects to fur- nish the necessary papers in due time, the defendant may move, on affidavit and notice of motion, that the cause be struck from the calendar, and that judgment be rendered in his favor. lb. A note of issue must also be filed with the clerk. g. The argument. The cause being regularly placed on the calendar, is called when reached, and the moving party opens the argument. In rendering judgment on the verdict, the court must act upon the facts as presented by the verdict, and cannot look into the evidence to ascertain the facts or any of them. Msemann v. Swan, 6 Bosw. 668 ; La Frombois v. Jackson, 8 Cow. 589. s h. Proceedings after argument. The decision of the court on the motion for judgment must be embodied in the form of an order and entered with the clerk. The order may be for judg- ment, or for a new trial. Hill v. Covell, 1N.Y.(1 Comst.) 522, 524 ; Msemann v. Swan, 6 Bosw. 668, 674. If a judgment is ordered, the prevailing party may proceed to have it entered upon the order in the usual manner. Section 31. Terdict subject to opinion of court. a. In general. The Code provides, that where, upon a trial, the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at general term. Code, §265. This provision of the Code applies to jury trials only. Malloy v. Wood, 3 Abb. 369 ; S. C, 14 How. 67; 6 Duer, 657. And in TEIAL BY JUEY. 199 Verdict subject to opinion of court — Form of — Preparation. such trials has no application to special verdicts. Gilbert v. Beach, 16 1ST. Y. (2 Smith) 606. As a verdict of this nature is authorized only where upon the trial the case presents questions of law only, it will be improp- erly ordered if a single question of fact is in dispute under the evidence. Gilbert v. Beach, 16 N. Y. (2 Smith) 606 ; Cobb v. Cornish, id. 602 ; S. C, 15 How. 407 ; 6 Abb. 129 ; Mason v. Breslin, 2 Sweeny, 386 ; S. C, 9 Abb. N. S. 427 ; 40" How. 436 ; Chambers v. Gfantzon, 7 Bosw. 414 ; Wilcox v. Hoch, 62 Barb. 509. To authorize the order an uncontroverted state of facts must be presented, for the court at general term in such case has no right, of itself, to deduce facts from disputed or uncertain evidence. lb. A verdict, subject to the opinion of the court at general term, cannot properly be ordered where exceptions have been taken upon which the parties have a right to be heard, upon a motion for a new trial, as, for example, exceptions to the ruling of the court upon a question of evidence. Cobb v. Cornish, 16 N". Y. (2 Smith) 602 ; Purchase v. Matteson, 25 1ST. Y. (11 Smith) 211 ; S. C, 25 How. 161 ; 15 Abb. 402 ; Bell v. Shibley, 33 Barb. 610 ; Sackett v. Spencer, 29 id. 180 ; Havemeyer v. Cunningham, 8 Abb. 1 ; Bangs v. Palmer, 16 How. 542. The court cannot properly direct a verdict for a specified amount, subject to the opinion of the general term, and at the same time order a reference to assess the damages of the plain- tiff, in case the general term sustains. his right of action. Bu- chanan v. Chesebrough, 5 Duer, 238. Where the court directs a verdict, subject to the opinion of the court at general term, in a case where such direction could not properly be given, no exception to the direction is necessary to save the rights of the party prejudiced thereby. A failure to object, at the trial, to such disposition of the case, by the judge who tried it, cannot cure the irregularity or give vitality to an unauthorized order. Purchase v. Matteson, 25 N". Y. (11 Smith) 211 ; S. C, 25 How. 161 ; 15 Abb. 402. b. Form of. The verdict, subject to the opinion of the court at general term, differs in form from the ordinary general verdict merely in the addition of the proviso that it is subject to the opinion of the court at general term. c. Preparation. The direction that the verdict be rendered in favor of a particular party is a mere matter of form, as it is im- 200 TRIAL BY JURY. Suspending entry of judgment — Bringing on for argument. material whether the verdict is rendered in favor of one party or the other. Usually the only effect of rendering a verdict in favor of a party is, that it devolves upon him to prepare the case upon which the general term is to render judgment. Cobb v. Cornish, 16 N. Y. (2 Smith) 602. See Williams v. Insurance Co. of North America, 1 Hilt. 345 ; Sharp v. Whipple, 3 Bosw. 474. The mode of preparing the case, on which to move for j udg- ment at the general term, is, so far as relates to the settlement, service, printing, etc., the same as on a motion for a new trial. The case, when settled, should present a statement of the facts established by the evidence, or conceded on the trial, together with a copy of the pleadings and the verdict. As the facts are beyond dispute, and the law only is involved in the controversy, the facts, and not the evidence of them, must be presented by the case made. The practice of setting out, in extenso, the evidence given upon the trial, is entirely improper, and when a case is so prepared, the court, at general term, may send it back for resettle- ment, at the expense of the party in whose behalf it was pre- pared. People v. Ransom, 56 Barb. 514. d. Suspending entry of judgment. The mere fact that a ver- dict, s abject to the opinion of the court at general term, has been rendered under the direction of the court, will, of itself, suspend the entry of judgment until the decision of the court of review, without any formal order to that effect. Mason v. Breslin, 40 How. 436 ; S. C, 9 Abb. N. S. 427 ; 2 Sweeny, 386 ; Gilbert v. Beach, 16 N. Y. (2 Smith), 606 ; Boosa v. Snyder, 12 How. 285 ; Jackson v. Fitzsimmons, 6 Wend. 546. e. Stay of proceedings. If, in any aspect of the case, a stay of proceedings is necessary pending the decision of the court at general term, an application for an order to that effect should be made to the court at special term substantially in the manner pointed out in a preceding volume. See vol. 2, p. 622. /. Bringing on for argument. It is the duty of the party in whose favor judgment was rendered at the circuit, to prepare and serve the necessary papers and to take such other steps as may be necessary preparatory to moving for judgment on the verdict. The ordinary notice of motion must be given, a copy of the verdict served, and a note of issue filed at least eight days before the argument. See Rules 46, 48, 49, Sup. Ct. ' TEIAL BY JURY. 201 The decision — Proceedings subsequent — Verdict in equity cases. The cause is then placed on the calendar, and, on being called in its order, the party moves for judgment on the verdict. g. The decision. Upon a verdict subject to the opinion of the court, the question for decision is never whether a new trial shall be granted, but which party, upon the conceded state of facts, shall have final judgment. Cobb v. Cornish, 16 N". Y. (2 Smith) 602 ; S. C, 15 How. 407 ; S. C, 6 Abb. 129. The fact that the counsel for either party fails on the argument to urge the particular reasons which would entitle the plaintiff to recover, or the defendant to a dismissal of the complaint, should not affect the decision. It is the duty of the court at general term to ascertain and declare the whole law upon the undisputed facts spread before it. Oneida Bank v. Ontario Bank, 21 N. Y. (7 Smith) 490. By directing a verdict subject to the opinion of the court at general term, by consent of the parties, all ques- tions of form and variance are waived, and the supreme court is thereby requested and authorized to declare the law upon the statement of the controversy made for its consideration ; and if, upon that statement, the verdict of the court at special term can be supported upon any theory consistent with the facts, even though not suggested by the pleadings, the moving party should have judgment on the verdict. lb. The judgment of the general term may be either for the plain- tiff, or for the dismissal of the complaint. Crittenden v. Empire Stone Dressing Co., 3 Abb. 71 ; S. C, 6 Duer, 30 ; Kelley v. Upton, 12 How. 140. It is to be presumed, that upon a proper state of facts affirma- tive relief might be granted to the defendant when the conceded or settled facts and the law require it. 7t. Proceedings subsequent. An order for judgment upon the verdict should be drawn up and entered with the clerk. Upon this order judgment may be regularly entered. The judg- ment so rendered may be reviewed by the court of appeals in the .same manner, and with the like effect, as if exceptions had been duly taken at the proper time ; provided it shall appear by the return that questions of law were involved in the rendition of the judgment. Code, § 265. Section 32. Verdict in equity cases. a. In general. The Code, after declaring what issues must be tried by jnry, unless a jury trial is waived, or a reference ordered, declares that the court may order every other issue, or Vol. Ill — 26 202 TEIAL BY JUKY. Verdict in equity cases — Objections and exceptions — When exception lies. any specific fact involved therein, to be tried by a jury. Code, ' §§ 253, 254. Ante, 10, 11. Thus, on the trial of issues of fact, in an equity case, the court, in the exercise of a sound discretion, may submit to the jury additional issues arising upon the proofs, and material to the final determination. Farmers and Mechanics' BanTc v. Joslyn, 37 N. Y. (10 Tiff.) 353 ; S. C, 4 Trans. App. 308. There are also issues which cannot be properly said to arise in a civil action, as the term is used in the Code, which the statute declares shall be tried by jury. These are issues which, by stat- ute, the court must direct to be made up and tried by a jury, on the reversal, upon a question of fact, of a surrogate's decree, admitting, or refusing to admit, a will for record or probate. 2 K. S. 66 (67), § 57. The mode of preparing the issues, which under the Code are substitutes for the feigned issues of the old practice, has been pointed out in a preceding volume. See vol. 2, p. 464. b. On feigned and awarded issues. The verdict, where spe- cified issues of fact have been submitted to a jury, is, of neces- sity, in the form of an ordinary special verdict, and must con- form to the rules already given in respect thereto. See § 30, ante, 195 to 198. Section 33. Objections and exceptions. a. In general. An exception, as the term is used in practice, is a formal objection to a decision of the court upon a ques- tion of law. An objection raises a question of law for the immediate decision of the court ; an exception is a formal objec- tion to that decision, made for the purpose of testing its correct- ness on a review by an appellate court. The objection is neces- sary to raise the question on which to obtain the decision ; and the exception is equally necessary to present that question to the appellate court. See Hunt v. Bloomer, 13 1ST. Y- (3 Kern.) 341; S. C, 12 How. 567; Magie v. BaTcer, 14 TS. Y. (4 Kern.) 435. b. When exception lies. An exception should be to a decision of the court on some point of law, either relating to the admis- sion or rejection of evidence, the challenge to a juror, or some other matter of law, arising upon a fact not denied, in which either party is overruled by the court. Varnum v. Taylor, 10 Bosw. 148 ; Kelly v. Kelly, 3 Barb. 419 ; Graham v. Oammann, 2 Cai. 168 ; Burtch v. NicTcerson, 17 Johns. 217. TRIAL BY JURY. 203 When exception does not lie — Exception, when taken. An erroneous charge to the jury upon a matter of law is a ground for an exception. Vamum v. Taylor, 10 Bosw. 148. And, in general, any decision of the court upon a matter which involves a strict legal right is a subject of exception. c. When an exception does not lie. An exception lies only to the rulings of the judge, and not to the errors of the jury. Stanley v. Webb, 21 Barb. 148 ; Foot v. Wiswall, 14 Johns. 304. Thus, no exception can be properly taken to a verdict, although clearly against evidence and contrary to the instructions of the court. lb. An exception is not available for the purpose of reviewing the exercise of a discretionary power on the part of the court. Peo- ple v. Cook, 8 N". Y. (4 Seld.) 67, 77 ; HolbrooTt v. Wilson, 4 Bosw. 64 ; Garner v. Hannah, 6 Duer, 262, 275 ; Hunt v. Hud- son River Fire Ins. Co., 2 id. 481 ; Both v. Schloss, 6 Barb. 308 ; Phincle v. Vaughan, 12 id. 215 ; Caldwell v. New Jersey Steam- boat Co., 47 N". Y. (2 Sick.) 282. T$o exception will lie to an expression of the opinion of the judge, in his charge to the jury, either as to the effect, or the weight of evidence ; nor is a statement, by the judge, of some or all of the reasons which have operated on his mind and in- duced his ultimate decision upon the question before him, a subject of exception. Smith v. Coe, 1 Sweeny, 385 ; Dows v. Hush, 28 Barb. 157. Nor will an exception lie to an opinion expressed by the judge on a hypothetical case, put by the coun- sel of either party, for the reason that an opinion on an ab- stract proposition, not supported by the evidence in .the case, is not the subject of an exception. Walrod v. Ball, 9 Barb. 271 ; Yallance v. King, 3 id. 548 ; Lyon v. Marshall, 11 id. 241 ; Hayden v. Palmer, 2 Hill, 205. But an exception will lie to the submission to the jury of a hypothesis wholly unwarranted by the evidence. Storey v. Brennan, 15 N. Y. (1 Smith) 524 ; Rouse v. Lewis, 2 Keyes, 352. d. Exception; when taken. The Revised Statutes provide that, in all cases where exceptions are allowed by law, on the trial of any cause, either party may make such exception at the time the decision complained of is made ; or, if such exception be to the charge given to the jury, it shall be made before the jury shall have delivered their verdict. 2 R. S. 422 (440), § 73. The statute and the decisions of the court require that an objec- tion, to be available, shall be taken at the first opportunity, and 204 TEIAL BY JURY. Exception, when taken — By whom taken. that the exception' must be taken immediately upon the over- ruling of the objection. Griggs v. Howe, 31 Barb. 100 ; 3 Keyes, 166 ; 2 id. 574. And it is a well-settled rule that an objection, not taken in the court below, cannot be raised for the first time on appeal, provided the objection, if taken below, could have been obviated. Levin v. Russell, 42 N". Y. (3 Hand) 251 ; Buffalo & N. T. R. R. Co. v. Brainard, 9 1ST. Y. (5 Seld.) 100 ; Brookman v. Hamill, 54 Barb. 209 ; Meyer v. Megel, 7 Rob. 122 ; S. C, 34 How. 434 ; 38 id. 424 ; Rosebrooks v. Dinsmore, 36 id. 138 ; ,S. C, 5 Abb. N. S. 59 ; 1 Trans. App. 265. But where the objection, if taken below, could not have been obviated, an omission to take it there does not prevent a party from subsequently raising it upon appeal. lb. An objection to the reception of incompetent evidence must be raised as soon as it is offered ; and if a party allows such evidence to be taken without objection, a denial of a motion to strike it out, when the party finds it prejudicial to his cause, will not be a ground for exception. Levin v. Russell, 42 N". Y. (3 Hand) 251 ; Cheesebrough v. Taylor, 12 Abb. 227. To this rule there is one exception. If the incompetency of the evidence is not ap- parent at the time it is offered, the party may take his objection afterward, if this is done as soon as the fact of incompetency is discovered, by motion to strike out the testimony given. See Heely v. Barnes, 4 Denio, 73 ; Mitchell v. Roulstone, 2 Hall, 351. An exception to the judge's charge should be made immedi- ately upon its delivery, and in all cases must be made before the jury have delivered their verdict. 2 R. S. 422 (440), § 73 ; Life and Fire Ins. Go. v. Mechanics' Fire Ins. Co., 7 Wend. 31. e. By whom taken. Where there are several plaintiffs or de- fendants, and a decision is made by the court which is preju- dicial to one or more of them, but not to all, the exception must be taken by the party or parties aggrieved only. Thus, where testimony is offered on the trial, which is relevant as to one of two defendants, but irrelevant as to the other, it must be objected to by the latter only. Black v. Foster, 28 Barb. 387; S. C, 7 Abb. 406. If in such case the defendants except jointly, the exception will be properly overruled. lb. /. Form of. All objections to the decision of the court upon the trial are taken verbally. Exceptions, however, must be in TRIAL BY JURY. 205 Form of exception — Must be specific. writing, but the court may allow a reasonable time to settle and reduce the same to form. 2 R. S. 422 (440), § 74. Whenever an objection or exception is taken, it should be accompanied with a statement of the grounds upon which it is based ; and if no such statement is made the objection will be unavailing. Fountain v. Pettee, 38 N. Y. (11 Tiff.) 184 ; S. C, 6 Trans. App. 241 ; Valton v. National Fund Life Assurance Co., 20 N. Y. (6 Smith) 32 ; Mabbett v. White, 12 N. Y. (2 Kern.) 442; Cayuga County Bank v. Warden, 6 N. Y. (2 Seld.) 19; Cowperthwaite v. Sheffield, 3 1ST. Y. (3 Comst.) 243 ; Ayrault v. Pacific Bant, 47 N. Y. (2 Sick.) 570. And where the objection is accompanied by a statement of the ground upon which it is based, no other ground of objection will be listened to on appeal. Newton v. Harris, 6 ST. Y. (2 Seld.) 345 ; S. C, 1 Code R. N. S. 414; Durgin v. Ireland, 14 N. Y. (4 Kern.) 322; Blossom v. Barrett, 37 1ST. Y. (10 Tiff.) 434 ; S. C, 5 Trans. App. 36 ; Dun- ham v. Simmons, 3 Hill, 609 ; Harris v. Panama R. R. Co., 5 Bosw. 312. g. Must be specific. The exceptions taken to the charge of a judge must be specific, and present the very point to be raised. The office of an exception is to point out some specific error in law, and the counsel should, by his exception, lay his finger upon the precise request refused, or the error in the charge, not only that the court may, upon the error being pointed out, correct it, but also that the court of review may not be left to spell out and dig up errors which, after they are discovered, may be more apparent than real, and may have arisen from mere inadvertence, or a misapprehension upon the trial. And, where various re- quests are made to the court to charge, an exception to the refusal of the court to charge each of the requests submitted, except so far as embraced in the charge already delivered, and an exception to every part of the charge inconsistent with such requests, presents no question for review on appeal. Ayrault v. Pacific Bank, 47 N. Y. (2 Sick.) 570 ; Walsh v. Kelly, 40 1ST. Y. (1 Hand) 556 ; Requa v. City of Rochester, 45 N. Y. (6 Hand) 129 ; Chamberlain v. Pratt, 33 N. Y. (6 Tiff.) 47 ; Magee v. Badger, 34 TS. Y. (7 Tiff.) 247. Where a charge contains several distinct propositions, and ex- ception is taken to the charge generally, if either proposition be sound and correct the exception will be unavailing. ' Kluender v. Lynch, 4 Keyes, 361 ; Decker v. Mathews, 12 N. Y. (2 Kern.) 206 TRIAL BY JURY. Exceptions must be specific — Exceptions, how cured. 313 ; Howland v. Willetts, 9 N. Y. (5 Seld.) 170 ; Hunt v. May- bee, 7 IS. Y. (3 Seld.) 266 ; Hart v. Rensselaer & Saratoga R. R. Co., 8 N. Y. (4 Seld.) 37 ; Haggart v. Morgan, 5 TS(. Y. (1 Seld.) 422. The same rule applies where the exception is to the whole charge and every part of it. Kluender v. Lynch, 4 Keyes, 361 ; Caldwell v. Murphy, 11 N. Y. (1 Kern.) 416 ; Jones v. Osgood, 6 N. Y. (2 Seld.) 233. And the same rule applies to an exception to each and every part of a charge. Caldwell v. Murphy, 11 IS. Y. (1 Kern.) 416 ; Kluender v. Lynch, 4 Keyes, 361. But in ex- cepting to a charge, all that is necessary is to specify the legal proposition therein supposed to be objectionable-; and if the whole charge consists of but a single proposition, a general ex- ception thereto will be sufficient, without a statement why the charge is, or is supposed to be, erroneous. Requa v. Holmes, 16 N. Y. (2 Smith) 193. The same rules apply to exceptions to the admission of evi- dence. A general exception to the admission of evidence of a series of facts is unavailing, if .evidence of one of the facts is admissible. Lay v. Roth, 18 1ST. Y. (4 Smith) 448 ; Graham v. Dunigan, 2 Bosw. 516. And where an exception to evidence is so general in its character as not to indicate the particular ground on which it was made, the exception will be unavailing, unless the character of the objection was such that it could not have been obviated on the trial had it been specifically pointed out. Merritt v. Seaman, 6 IS. Y. (2 Seld.) 168. So an exception to the allowance of a specified sum as interest will be unavailing if any interest is allowable. McMahonv. IV. Y. & Erie R. R. Co., 20 N. Y (6 Smith) 463 ; Graham v. Chrystal, 37 How. 279 ; S. C, 2 Keyes, 21. h. Exceptions, how cured. A defect in the proof or proceed- ings on a trial, to which an exception has been properly taken, may be cured by subsequent proceedings, and the exception rendered unavailing. Thus, where a valid exception is taken to the insufficiency of the proof of a given fact, the exception will be cured by the introduction of further evidence supplying the defect. Bronson v. Wiman, 10 Barb. 406; Westlalie v. St. Lawrence Mutual Ins. Co., 14 id. 206 ; Be Groot v. Fulton Fire Ins. Co., 4 Rob. 504; Mc Cotter v. Hooker, 8 N". Y. (4 Seld.) 497 ; Hyland v. Sher- man, 2 E. D. Smith, 234 ; Colegrove v. Harlem & New Haven R. R. Co., 6 Duer, 382 ; Lambert v. Seely, 2 Hilt. 429 ; S. C, TEIAL BY JURY. 207 Exceptions, how cured — Bill of exceptions — Reserving cause for judgment. 17 How. 432 ; Kent v. Harcourt, 33 Barb. 491. But an excep- tion to the erroneous admission of evidence will not be waived, although, the party objecting afterward introduces evidence tending to establish the same fact. Worrall v. Parmelee, 1 N. Y. (1 Comst.) 519. See Hay den v. Palmer, 2 Hill, 205; Qrimm v. Hamel, 2 Hilt. 434 ; Tooher v. Gormer, id. 71. So a party will not lose the benefit of an exception to the admission of improper testimony, by simply cross-examining the witness giving it. Duff v. Lyon, 1 E. D. Smith, 536. And if on a cross-examina- tion a witness gives testimony which is objected to as inadmissi- ble under the pleadings and secondary in its character, the objection will not be waived by re-examining the witness in respect to the matters embraced in the testimony thus received under objection. Simpson v. Watrus, 3 Hill, 619. But a party may expressly waive an objection to the admis- sion of improper evidence. Bundell v. Butler, 10 Wend. 119. And an exception to the admission of such evidence may be rendered nugatory by a subsequent direction to the jury to dis- regard it. People v. Parish, 4 Denio, 153 ; Williams v. Van- derbilt, 29 Barb. 491 ; Chester v. Dicfyerson, 52 id. 349. But a direction to the jury to disregard evidence improperly admitted will not have that effect unless it can be clearly shown that the verdict was not affected by the evidence so admitted. Mrben v. Lorillard, 19 H". T. (5 Smith) 299. i. Bill of exceptions. The directions as to the form, contents and preparation of a bill of exceptions will be given in a sub- sequent chapter. See New Trials, in a subsequent chapter; Code, § 264 ; Rules 41-44, Sup. Ct. Section 34. Reserving cause for judgment. a. In general. The Code directs that, upon receiving a verdict, the clerk shall make an entry in his minut.es specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further con- sideration. Code, § 264. The Code also declares that, if a different direction be not given by the court, the clerk must enter judgment in conformity to the verdict. lb. Requiring a jury to pass upon specific questions of fact, is such a different direction as will prevent the clerk from entering the judgment in accordance with a general ver- dict as he cannot determine what judgment is to be entered. 208 TRIAL BY JURY. Reserving cause' for argument — Reserving exceptions. Moss v. Priest, 1 Rob. 63? ; S. C., 19 Abb. 314'. In such cases, a special application for judgment becomes necessary, and on the argument of the motion the court has an opportunity to give a fuller examination of the questions presented than would be the case if the questions were presented for immediate decision during the haste of the circuit. The practice in such cases has been already noticed. See pp. 198 to 201, ante. o. Reserving cause for argument. The Code provides that a motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict, or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the gen- eral term. Code, § 265. The Code in allowing the judge at the circuit to reserve a cause for argument evidently contemplated those cases in which the court might be undecided as to what judgment should be ren- dered on the verdict, and where it would facilitate substantial justice between the parties to allow a postponement of the decision until the court on a careful consideration of the questions pre- sented, and after a full argument by the counsel respectively, had arrived at a well-considered determination, without unnecessarily delaying the other business of the circuit. Under the general language of the Code the argument might undoubtedly be heard at special term ; but it is to be presumed that it was the intention of the framers of the Code that the court should merely post- pone the argument to a more convenient day at the circuit, when the cause could be taken up and disposed of in the same man- ner as the proceedings are resumed in the trial of a long cause after adjournment from day to day. If this view is correct, the court will fix the date of the argument when directing the postponement, without requiring either party to give formal notice of the application for judgment. c. Reserving exceptions. The Code provides that when excep • tions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and that the judgment be in the mean time suspended ; and in that case they must be there heard in the first instance and judg- ment there given. Code, § 265. There are but two cases in which the general term can, before TEIAL BY JURY. 209 Reserving exceptions. judgment, and in the first instance, review the proceedings. One is, where the judge trying the cause directs the exceptions of the unsuccessful party to be heard, in the first instance, at the general term ; the other, where there are no exceptions taken upon the progress of the trial upon any question of evi- dence, and the facts are uncontroverted. Purchase v. Matieson, 25 1ST. Y. (11 Smith) 211 ; S. C, 25 How. 161 ; 15 Abb. 402. In the former case, the general term either grants a new trial or renders judgment- In the latter case, it renders final judgment in favor of either party who, upon the conceded state of facts, is entitled to it. Bicker son v. Wason, 48 Barb. 412. A judge at the circuit has no power to order a whole case to be heard at general term, but can order the exceptions only to be so heard. Cronk v. Ganfield, 31 Barb. 171 ; Hoxie v. Green, 37 How. 97. Upon such hearing no findings of fact, however erroneous, can be reviewed by the general term, nor can the point be raised that the verdict is against the weight of evidence. Bickerson v. Wason, 48 Barb. 412 ; Hotchkins v. Hodge, 38 id. 117. See Crouch v. Parker, 40 id. 94 ; Mason v. Breslin, 2 Sweeny, 386 ; S. C, 9 Abb. K S. 427 ; 40 How. 436. But whenever exceptions have been taken, and questions of law thereby raised, even though the only exception taken was to a dismissal of the complaint, the circuit judge has power to direct such exception or exceptions to be heard in the first instance at the general term. Lake v. Artisans' Bank, 3 Abb. N. S. 209 ; S. C, 1 Trans. App. 71 ; 3 Keyes, 276 ; Huntingdon v. Glaffin, 38 N". Y. (11 Tiff.) 182; S. C, 6 Trans. App. 168. The application for judgment at the general ter,m is an enu- merated motion, and must be noticed for the first day of the term. Rules 47, 49, Sup. Ct. Either party may notice the cause for the hearing. lb. The moving party must give the usual notice, file a note of issue, and serve upon the adverse party the necessary papers. See Rules 46, 48, 49, Sup. Ct. He must also prepare the necessary papers for the court as directed by rule 52, supreme court. The cause being called in its order on the cal- endar, the moving party is entitled to begin. After hearing the argument the court renders its decision, which may be either for judgment on the verdict, or for a new trial. Dicker son v. Wa- son, 48 Barb. 112 ; Mason v. Breslin, 2 Sweeny, 386 ; S. C, 9 Abb. N. S. 427 ; 40 How. 436. Vol. Ill — 27 210 TEIAL BY JURY. Keserving for consideration — Stay of proceedings. d. Reserving for consideration. The Code allows the judge at circuit to reserve the cause for consideration, without hearing further argument. Code, § 264. In such cases the judge makes his decision at his convenience, and directs the clerk to enter judgment in accordance therewith. Section 35. Stay of proceedings. a. In general. Whenever the unsuccessful party proposes to move for a new trial, he should, on the rendition of the ver- dict, move the court for such time as may be necessary to make a case or exceptions, and for a stay of proceedings pending the decision of the motion. If the motion for the stay is delayed until the court has adjourned, the application, if granted by the judge out of court, cannot be for a longer period than twenty days. Code, § 401. In moving for additional time to make and serve a case and exceptions, care should be taken to include in the application a request for a stay of proceedings, as an order directing that the time to make and serve a case and exceptions be extended will not, of itself, operate as a stay. Goodrich v. Downs, 5 Hill, 510. See Oakley v. Aspinwall, 1 Sandf. 694. Section 36. Discretionary powers of court. a. In general. During the entire progress of the trial, from the calling of the cause until the entry of the verdict, there are certain questions liable to arise which are within the discretion of the court, and to the determination of which no valid excep- tion can be taken. As such questions could not, from this fact, affect any right of either party upon the trial, and consequently do not form a part of the plan of a discussion of a trial by jury, it was deemed advisable to discuss some of the most important discretionary powers of the court in a separate section, even though the matter so introduced might seem misplaced. It is within the discretion of the court to allow parties to intro- duce further testimony after the counsel have rested the cause. Berger v. White, 2 Bosw. 92 ; Williams v. Hayes, 20 IS". Y. (6 Smith) 58 ; DuncJcle v. Kocker, 11 Barb. 387 ; Heidenheimer v. Wilson, 31 id. 636 ; Anthony v. Smith, 4 Bosw. 503. Or after the cause has been summed up to the jury. Meyer v. Qoedel, 31 How. 456. Or to refuse such allowance. Chancel v. Bar- clay, 1 E. D. Smith, 384. So it is a matter entirely in the discre- tion of the court whether a plaintiff shall be permitted to give TRIAL BY JURY. 211 Discretionary powers of court. additional evidence after a motion for a nonsuit. Reed v. Bar- ber, 3 Code R. 160. The court may, in its discretion, allow or refuse to allow a wit- ness to be recalled after he has left the stand. Sheldon v. Wood, 2 Bosw. 267 ; Tread-well v. Stebbins, 6 id. 538 ; Stacy v. Graham, 3 Duer, 444 ; Romertze v. East River Bank, 2 Sweeny, 82. So it may allow or refuse to allow leading questions to be put. Cheeney v. Arnold, 18 Barb. 435 ; Budlong v. Van Nostrand, 24 id. 25 ; Vrooman v. Griffiths, 1 Keyes, 53. Or determine whether a question is objectionable as leading. Walker v. Duns- paugh, 20 N. Y. (6 Smith) 170. So the nature and extent, of the questions that may properly be put to a witness by way of cross- examination, depend largely upon judicial discretion. Fry v. Bennett, 3 Bosw. 200 ; S. C, 9 Abb. 45 ; Great Western Turn- pike Co. v. Loomis, 32 N. Y. (5 Tiff.) 127 ; Greton v. Smith, 33 N. Y. (6 Tiff.) 245 ; La Beau v. People, 34 TS. Y. (7 Tiff.) 223. The court mayalso limit the number of witnesses examined on a collateral issue. Antony v. Smith, 4 Bosw. 503 ; Ward v. Washington Ins. Co., 6 id. 229. Ante, 125, 126. The refusal to receive a demurrer to evidence is a matter of discretion. Colgrove v. N. Y..& N. H. R. R. Co., 20 K. Y. (6 Smith) 492. So is the question which party shall open and close the case. Fry v. Bennett, 28 N. Y. (1 Tiff.) 324. Ante, 111 to 114. So in an equity case, the submission to the jury of additional issues arising on the proofs and material to the final determina- tion is within the discretion of the court. Farmers and Me- chanics' Bank v. Joslyn, 37 K Y. (10 Tiff.) 353 ; S. C, 4 Trans. App. 308. To the exercise of these and other discretionary powers of the court, no exception will lie, except in a clear case of abuse. CHAPTER III. TEIAL OF ISSUES OF FACT BY THE COUET. ARTICLE I. PROCEEDINGS ON THE TEIAL. Section 1. What actions or issues are properly so triable. a. Equitable actions. It has already been stated {ante, 10) that an issue of fact in any action, formerly known as a common- law action, must be tried by a jury, unless a jury trial be waived, or a reference be ordered under the provisions of the Code. See Code, § 253. Every other issue is, however, properly triable by the court without a jury. Code, § 254. And this provision of the Code includes, generally, all issues of fact in equitable actions, a party not being entitled, as a matter of right, to have the issues of fact in such actions tried by a jury. McCarty v. Edwards, 24 How. 236. And where the action really seeks for equitable relief, although in form it be one for the recovery of money only, it should be tried by the court. Cheseborough v. House, 5 Duer, 125. See Hill v. McCarthy, 3 Code R. 49. So where the complaint sets forth a cause of action entitling the plaintiff to legal relief only, and demands equitable relief, either with or without legal relief, the defendant cannot object, on appeal, that the cause was tried by the court alone, and that legal relief was given, unless the objection was seasonably taken in the court below. Pennsyl- vania Goal Go. v. Delaware & Hudson Canal Co., 1 Keyes, 72 ; Barlow v. Scott, 24 N. Y. (10 Smith) 40 ; Greason v. Keteltas, 17 N. Y. (3 Smith) 491 ; The People v. Albany & Susquehanna R. R. Co., 5 Laus. 25. See Bradley v. Aldrich, 40 IS. Y. (1 Hand) 504 ; McKeon v. See, 4 Rob. 449. b. Actions which might be referred. Issues in actions which might be referred are also triable by the court, unless the par- ties, by uniting in a consent to a reference, as provided in section 270, require that the action shall be tried by a referee. Code, § 254. c. Actions not usually tried by jury. Actions strictly equi- table in their nature are not usually tried by a jury, owing to the TRIAL OF ISSUES OF FACT BY THE COURT. 213 When jury trial necessary — Wavier of trial by jury — Failing to appear. difficulty which a jury would have in adequately dealing with the complicated questions arising for settlement. Issues in an equitable action may, however, be specially prepared by the judge and submitted to a jury for their decision, and this has been done where* the controversy was strictly equitable in its nature. See Wood v. Harrison, 2 Sandf. 665 ; S. C, 2 Code R. 141. See ante, 18, 19, 20 to 24. d. WJien jury trial necessary. A trial by jury is necessary in every case, where the facts, as they exist at the commencement of the action, are such that the court has no power to award any special or equitable relief. Stevenson v. Buxton, 15 Abb. 352 ; S. O, 37 Barb. 13 ; Lewis v. Varnum, 12 Abb. 305 ; Bradley v. Aldrich, 40 ~N. Y. (1 Hand) 504. But the demand to send the cause to the jury should be made by the defendant before the trial is entered upon by the court. Oreason v. Keteltas, 17 N. Y. (3 Smith) 491. See Grouse v. Walrath, 41 How. 86. Ante, p. 11, 12. Section 2. Waiver of trial by jury. a. Bight to waive jury. Although the right to a trial by jury in a proper case is absolute, yet this right may be waived. Thus, by section 266 of the Code, it is provided* that "trial by jury may be waived by the several parties to an issue of fact in actions on contract, and with the assent of the court, in other actions, in the manner following : 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes." So, if a party enters voluntarily upon a trial by the court, without objection, in a case where he would be entitled to a trial by jury, he will ordi- narily be understood as waiving the latter mode of trial. Orea- son v. Keteltas, 17 N. Y. (3 Smith) 491 ; Moffat v. Mount, 17 Abb. 4 ; S. O, 10 Bosw. 468 ; McEeon v. See, 4 Rob. 449. And he cannot, on appeal, object that the cause was tried by the court without a jury. Pennsylvania Coal Go. v. Delaware & Hudson Canal Co., 1 Keyes, 72. Ante, 11, 12. o. Failing to appear. The above section of the Code (266), which provides for a waiver, must be construed to mean a waiver which implies a voluntary relinquishment of a right, not the enforcement of one, and by all the parties, not by any one alone, unless the other seeks to avail himself of it. Hence, a trial by jury is not waived by the mere failure of one of the parties to 214 TRIAL OF ISSUES OF FACT BY THE COURT. Written consent — Oral consent — What is a waiver. appear at the trial under subdivision 1, section 266 of the Code. Hendriclcs v. Carpenter, 4 Rob. 665 ; affirming S. C, 2 id. 625; 1 Abb. ~N. S. 213. Where the defendant does not appear in a cause, the plaintiff may waive a jury, and take an inquest before the court at the circuit, and out of its regular order on the calendar. Haines v. Davis, 6 How. 118 ; S. C, 1 Code R. N. S. 407.' See Goodyear v. Baird, 11 How. 377. But it seems that this should be done before the jury are discharged for the circuit. Haines v. Davis, 1 Code R. N. S. 407 ; S. C, 6 How. 118. See, however, Dickin- son v. Kimball, 1 Code R. 83. Ante, 53 to 61. c. Written consent. Where the waiver of a trial by jury is by written consent, it is important that the attorney should see that it be properly filed with the clerk, as provided by the Code in section 266, subdivision 2. This consent should be filed before the trial takes place, and the cause should be noticed and placed upon the special term calendar, so that it may be tried in its' order by the court. d. Oral consent. When the waiver is made by an oral con- sent in open court, the attorney should see that such consent is duly entered upon the minutes. See Code, § 266, subd. 3. e. What is a waiver. Where the cause is one primarily tri- able by a jury, the waiver should be clearly established, or the trial by the court may be ineffectual. See Salters v. Oenin, 7 Abb. 193 ; S. C, 3 Bosw. 250. It hence becomes important to clearly understand what will amount to a waiver. To wait until the trial is entered upon, before making application for a jury trial, is held to be a waiver. McKeon v. See, 4 Rob. 449. Ante, 11,12. And it is settled that, where a legal cause of action is joined with an equitable one, and the trial of the latter has been entered upon, but there is a failure of evidence to sustain it, the court must still proceed with the trial of the former, even without a jury. New YorJc Ice Co. v. North West. Ins. Co., 23 N". Y. (9 Smith) 357 ; S. C, 21 How. 296 ; 12 Abb. 414 ; Barlow v. Scott, 24 BT. Y. (10 Smith) 40 ; Penn. Coal Co. v. Del. & Hudson Canal Co., 1 Keyes, 72. See Bradley v. Aldrich, 40 K Y. (1 Hand) 504. This rule is based upon the principle that, as one of the issues was triable without a jury, the entering upon its trial without a previous application, under section 254 of the Code, was a waiver of a jury, there being no provision in the Code for two trials of TRIAL OF ISSUES OF FACT BY THE COURT. 215 What is not a waiver — Bringing on the trial — Practice on the trial. issues in an action, at the mere election of the party, without the sanction of the court. See McKeon v. See, 4 Rob. 449. /. What is not a waiver. We have already se.en (ante, p. 11, 12) that the failure of one of the parties to appear at the trial is not a waiver of a jury trial. So, where a defendant excepts to the finding of facts, and to the conclusions of law by a judge, he does not thereby waive the right to a trial by jury. Nor is he estopped, on appeal, from taking the ground that the trial by the judge at chambers was irregular. Fasnacht v. Stehn, 5 Abb. N". S. 338; S. O, 53 Barb. 650. Section 3. Bringing on the trial. a. In general. The trial of an issue of fact, by the court may be brought on upon the motion of either party giving the notice. It cannot be moved, however, until the cause is in readi- ness for trial as between all the parties to the action ; for it can- not be tried in sections without leave of the court, which is granted only in certain cases. If there be several defendants, who are each entitled to notice of trial, all must have notice from the plaintiff before he can move on the trial. On the other hand, all the defendants must have given notice of trial to the plaintiff before any of them can move the trial as against the plaintiff. Ward v. Dewey, 12 How. 193 ; Morris v. Crawford, 16 Abb. 124. See Fassett v. Tallmadge, 15 Abb. 205; Good- year v. Brooks, 2 Abb. N. S. 296 ; S. O, 4 Rob. 682. Ante, 4, 28. b. Practice on the trial. The practice, or course of procedure on a trial by the court, is in general the same as upon a trial by jury, the rules and principles of which have been fully stated and explained in previous chapters. See ante, 125, etc. Greater latitude is allowed by the court, in regard to the formalities of the trial, and a wider discretion is exercised in permitting par- ties to recall witnesses and supply proofs, than on a trial before a jury. 1 Van Sant. Eq. Pr. 479. The trial must be entire, and cannot properly be had before several judges,, in succession; as for example, partly decided by one judge; and at a subsequent term taken up and completed by another. A cause cannot thus be tried and determined by piecemeal. Chamberlain v. Dempsey, 15 Abb. 1 ; S. C, 9 Bosw. 540 ; Belmont v. Bowoert, 3 Rob. 693 ; S. C. affirmed, id. 698, note. If it is desired, by either party, to have the judge before whom the cause is tried pass upon any issue not made by the pleadings,, he should be specially requested to do so on the 216 TRIAL OF ISSUES OF FACT BY THE COURT. The decision — What to be decided. trial, before the decision ; or the matter may be brought up by motion, on the subsequent settlement of a case. Heroy v. Kerr, 21 How. 409 ; S. C. affirmed, 2 Keyes, 582. Section 4. The decision. a. In general. The decision of the judge upon the trial of a question of fact by the court, though not itself a judgment, is the only authority for entering the judgment, and without it the latter would be irregular and altogether invalid. Chamberlain v. Bempsey, 14 Abb. 241 ; S. C, 9 Bosw. 212 ; Otis v. Spencer, 16 N. Y. (2 Smith) 610 ; S. C, 15 How. 425 ; 6 Abb. 127. In all cases the clerk must enter judgment thereon in the judgment book, but he cannot go beyond the decision, and include any thing in the judgment not embraced in the decision. Loeschigk v. Addison, 19 Abb. 169 ; S. C, 3 Rob. 331 ; Sherman v. Postley, 45 Barb. 348. Such an entry in the judgment book, and a copy of it in the roll is the only record evidence that a judgment has been perfected. Schenectady & Saratoga Plank Road Co. v. Tfiatcher, 6 How. 226 ; S. C, 1 Code R. 1ST. S. 38*0 ; Sherman v. Postley, 45 Barb. 348. o. What to be decided. Prior to the amendment of section 267 of the Code in 1860, it was held to be sufficient if the decision of the judge stated in general terms what the judgment ought to be, without any finding of facts, or statement of conclusions of law. See Johnson v. Whiilock, 13 1ST. Y. (3 Kern.) 344 ; Otis v. Spencer, 16 N. Y. (2 Smith) 610 ; S. C, 15 How. 425 ; 6 Abb. 127. But now, it is expressly provided, that the decision of the court "must contain a statement of the facts found, and the conclu- sions of law separately." Code, § 267 ; Van SlyTce v. Hyatt, 46 N\ Y. (1 Sick.) 259. All the material facts upon which the judg- ment of the court is based should be found by the decision, and it should dispose of all the issues between all the parties. In case the decision does not so dispose of all the issues, a new trial must be ordered. See LoeschigTc v. Addison, 19 Abb. 169 ; S. C, 3 Rob. .331 ; Chamberlain v. Dempsey, 14 Abb. 241 ; S. C, 9 Bosw. 212; Griffin v. Cranston, 5 id. 658; Burger v. Baker, 4 Abb. 11 ; Rogers v. Baird, 20 How. 98, 282 ; Sinclair v. Tall- madge, 35 Barb. 602. The decision is required to be made in writing (Code, § 267), and it must be signed by the judge who tried the cause, and appear by his signature or allocatur. Thomas v. Tanner, 14 How. 426. See Burger v. Baker, 4 Abb. 11. TRIAL OF ISSUES OF FACT BY THE COURT. 217 Form of decision — How to be decided — Effect of decision. Form of decision. {Title of cause.) {At, etc.) This action having been brought to trial before the court, with- out a jury, the court finds the following facts : II. HI. And the following conclusions of law thereupon : ii. hi. Judgment is therefore rendered for , in the sum of , with costs. J. P., Justice, etc. c. How to be decided. The judge must himself render the decision. He cannot, after the hearing before himself, order the cause to be re-tried before a jury. O'Brien v. Bowes, 10 Abb. 106 ; S. C, 4 Bosw. 657. Nor has any other judge power to interfere in the decision of the cause, even to order a reference to take an accounting {Chamberlain v. Dempsey, 14 Abb. 241 ; S. C, 9 Bosw. 212), though this might properly be done by the judge who tried the cause. Code, § 271. So, the judge must make a decision disposing of the entire case. Van Valen v. Lapham, 13 How. 240 ; S. C. affirmed, 5 Duer, 689. He must determine the issues tried by him absolutely, and cannot render a decision subject to the opinion of the general term ; a proceed- ing applicable exclusively to trials by jury. Mallory v. Wood, 14 How. 67 ; S. C, 3 Abb. 369 ; 6 Duer, 657. And the decision should be made, as such, a mere opinion being insufficient for the purpose. Thomas v. Tanner, 14 How. 426. See Magie v. Baker, 14 H". Y. (4 Kern.) 435. d. Effect of decision. The decision of a judge, who hears the trial of a cause before him, on a question of fact, is equivalent to the verdict of a jury, and is conclusive, if -f;here is any evi- dence to sustain it, or unless it be so clearly against the weight of evidence that a verdict under similar circumstances would be set aside. Bitter v. Cushman, 35 How. 286 ; S. C, 7 Rob. 294 ; Bruyn v. Comstock, 56 Barb. 9 ; Bank of North America v. Embury, 21 How. 14; S. C, 33 Barb. 323. See, also, Davis v. Allen, 3 N. Y. (3 Comst.) 168 ; Hoogland v. Wight, 7 Bosw. 394 ; S. C, 20 How. 70. Vol. III. — 28 218 TEIAL OF ISSUES OF FACT BY THE COUET. When to be rendered — Statement of facts found. Every reasonable inference will be made in favor of the decision. See Yiele v. The Troy & Boston R. R. Co., 20 N. Y. (6 Smith) 184. And the finding of the judge, upon conflicting evidence, will not be disturbed by an appellate court. Foote v. Roberts, 7 Rob. 17. See, also, Woodruff v. McOrath, 32 H". Y. (5 Tiff.) 255 ; Bear 88 v. Copley, 10 N. Y. (6 Seld.) 93 ; Hall v. Morri- son, 3 Bosw. 520. e. When to be rendered. The decision is required to be made within twenty days after the court at which the trial took place. Code, § 267. This provision, as regards the time, is, however, generally regarded merely as directory, and a decision made after the prescribed period is perfectly valid. Stewart v. Slater, 6 Duer, 83 ; Burger v. Baker, 4 Abb. 11 ; The People v. Bodge, 5 How. 47. See Heroy v. Kerr, 21 id. 409 ; S. O, 8 Bosw. 194. If no decision is rendered before the expiration of the judge's term of office, the whole trial falls through, and a trial of the issues must be commenced anew. Putnam v. Crombie, 34 Barb. 232. If, upon motion by either party to a general or special term of the court, it shall be made to appear that the decision is unreas- onably delayed, the court may make an order absolute for a new trial, or may order a new trial, unless the decision shall be filed by a time to be specified in the order. Code, § 267. /. Statement of facts found. We have already seen (ante, subd. b) that section 267 of the Code requires the decision of the court to "contain a statement of the facts found, and the con- clusions of law, separately." This should be a finding on all the facts sufficient to clearly designate the nature and form of the judgment to be entered, and to fully determine the rights of the parties. No fact is or can be implied from the conclusions of law ; they follow as the result of the facts separately stated. Tomlinson v. Mayor, etc, of New York, 23 How. 452. Though all the material facts should be found in the decis- ion, it will not be more erroneous for the court to omit to state even facts material to the issue, than for a jury to make such omissions in its verdict ; the presumption of law being that its findings on such facts are favorable to the successful party, as every thing necessary to sustain the verdict will be intended. McKeon v. See, 4 Rob. 449. See Loomis v. Decker, 1 Daly, 186 ; Rider v. Powell, 28 IN". Y. (1 Tiff.) 310. Where the judge finds a material fact, wholly without evidence to sustain it, it is an TEIAL OP ISSUES OF FACT BY THE COURT. 219 Statement of conclusions of law — Preparing and settling decision — Filing. error of law, and, upon exception thereto, it is reviewable in the ,court of appeals. Mason v. Lord, 40 IS". Y. (1 Hand) 476. See Putnam v. Rubbell, 42 N. Y. (3 Hand) 106 ; Boot v. Great West- ern B. B. Co., 45 K Y. (6 Hand) 524. And, it would seem that the rule is the same where there has been a refusal to find a material fact which is proved by uncontroverted evidence. Mason v. Lord, 40 1ST. Y. (1 Hand) 476. g. Statement of conclusions of law. The conclusions of law arrived at by the judge and his findings of facts are to be stated separately. See Code, § 267. h. Preparing and settling decision. The judge may, of course, prepare his decision himself, but it is almost always drawn up by the attorney for the successful party. -It would, however, be highly improper for the counsel for the defeated party to be present at the finding of facts by the judge who tried the cause, or to have any voice in saying what those findings should be. The fact that the judge allows the successful party to be present does not give the other party a right to be present also. People v. Albany & Susquehanna B. B. Co., 8 Abb. N S. 122 ; S. C, 39 How. 49 ; S. C. affirmed, 57 Barb. 204 ; 2 Lans. 459. Neither is the successful party required, unless by express direction or special agreement, to submit a draft of the judgment, before entry thereof, to the adverse party, or to have it settled upon notice. lb. It is, however, very usual in practice for the prevailing party to draft what he conceives to be the finding of the judge upon the facts, and his conclusions of law, and submit it to his oppo- nent, who, if dissatisfied, may either propose amendments or prepare what he conceives to be the finding, and submit the same to the judge for settlement ; or, the parties may go before the judge, in an informal manner, and obtain a settlement of the decision. See 1 Van Sant. Eq. Pr. 483. i. Filing. The decision should be filed with the clerk, within twenty days after the court at which the trial took place. § 267. But where there is no pretense of merits, or that the action was not correctly decided, the omission to file a decision in writ- ing is not a defect which can "affect the substantial rights of the adverse party," and should be disregarded. Lewis v. Jones, 13 Abb. 427. See Code, § 176. So, where a motion is made to set aside a judgment for irregularity in this respect, it must clearly appear on the moving papers, that no decision has in fact been 220 TRIAL OF ISSUES OF FACT BY THE COURT. The judgment — Reserving cause for judgment. filed, for it should be presumed that the judge who tried the cause did his duty. Lewis v. Jones, 13 Abb. 427. It is not unusual in practice for the judge to deliver his de- cision personally to the attorney for the successful party, to be filed ; and sometimes, when the justice is in one place, the attor- ney for the successful party in another, and the clerk' s office in a third, the justice sends his decision, when signed, by mail to the attorney for the successful party, who takes care that it is properly filed. See The People v. Church, 2 Lans. 459, 469. j. The judgment. The only authority needed for entering judgment is the decision of the judge, and the judgment to be entered thereon must contain no provisions not embraced in such decision. LoeschigJc v. Addison, 19 Abb. 169 ; S. C, 3 Rob. 331. See ante, subd. a. Nor is it necessary to recite in the judgment the particulars of the decision ; and on appeal a portion of the recitals in the judg- ment may be stricken out. Bunten v. Oriental Mut. Ins. Co., 8 Bosw. 448 ; S. C. affirmed, 2 Keyes, 667. Prior to the amendment of section 267 of the Code, in 1870, it was the duty of the clerk, unless otherwise directed by the court, to enter judgment at once on the filing of the decision, and the successful party might cause it to be done. Cotes v: Smith, 29 How. 326 ; S. C. affirmed, 31 id. 146, 638, n. The omission of the clerk to enter judgment was not allowed to prejudice the party. Butler v. Lee, 33 How. 251 ; S. C., 3 Keyes, 70. See People v. Albany & Susquehanna R. R. Co. , 57 Barb. 209. The amendment of 1870 to section 267 of the Code, provides that, in cases of trial by the court, "judgment upon the decision shall be entered accordingly four days thereafter." See Code, § 267. Tc. Reserving cause for judgment. After the court has ren- dered a final decision, it has no power to suspend the entry of judgment {Wright v. Delajield, 11 How. 465 ; Malloryv. Wood, 14 id. 67; S. C, 3 Abb. 369 ; 6 Duer, 657), but it may reserve the decision itself until such proceedings as are necessary to a final determination of the controversy may be had. Thus, though the general issues in the action are decided, it may be neces- sary to direct a reference to take an account, or to ascertain some necessary fact not yet presented. Such questions may be sent to a referee for determination, and the final decision on those points reserved. See Code, § 271. See Interlocutory Decrees, Orders, etc. TEIAL OF ISSUES OF FACT BY THE COURT. 221 Final hearing — Objections and exceptions — Correcting findings. I. Final hearing. The proceedings on the final hearing of the cause, on further directions upon the coming in of the referee's report, have been fully described in treating of the subject of. Interlocutory Decrees, and hence need only be referred to in this place. See Interlocutory or Decretal Orders. to. Objections and exceptions. Objections and exceptions in trials by the court without a jury are subject to the same rules as in trials by jury ; as to which, see ante, pp. 202 to 207. Ex- ceptions to decisions of the judge, to which there was no oppor- tunity to except during the course of the trial, are regulated by provisions, of the Code, section 268, which will be fully stated and explained in a subsequent section of this work. See post, § 5. So far as questions of law are decided by the judge during the progress of the trial, exceptions must be taken, if at all, at the time the decisions are made. No exception is required at the trial so far as the decision involves the determination of a ques- tion of fact upon the evidence. Tremain v. Rider, 13 How. 148. See Hunt v. Bloomer, 13 N.Y. (3 Kern.) 341 ; S. O, 12 How. 567 ; Magie v. Baker, 14 N. Y. (4 Kern.) 435. n. Correcting findings. At the conclusion of the trial of an issue of fact by the court, it is always advisable to make a written statement, in an alternative form of such findings of fact as are deemed material, and to present this statement to the court with a request to find either in one way or the other. If the judge, in his decision, fails to pass upon any or all of the facts as requested, the objection may be taken by an exception to the decision. But if no request to find certain facts has been made on the trial, the party must seek his remedy at the time the case is presented to the judge for settlement. The party desiring to review the decision of a judge on the trial of an issue of fact should, if the decision is final, incorporate in his case a statement of such facts and also of such conclusions of law as he deems necessary to be found in order to protect his rights. The judge will, in that case, pass upon such facts, and find or refuse to find ; and, in a proper case, the party may have the benefit of an exception to his refusal. People v. Church, 2 Lans. 459; S. C, 57 Barb. 204; Rule 41, Sup. Ct. Any excep- tion thus taken becomes a part of the record, and the materiality of the findings asked for and refused can be determined at the general term, and on appeal to the court of appeals. See Van 222 TRIAL OF ISSUES OF FACT BY THE COURT. Correcting findings — Exceptions to decisions. Slyke v. Hyatt, 46 N. Y. (1 Sick.) 259 ; Beck v. Sheldon, 48 K Y. (3 Sick.) 365, 369. It -will be improper to move at special term for an order setting aside the judgment entered on the decision, or for an order send- ing back the case for a re-settlement, as a review of a judgment at special term cannot be had at another special term. See Peo- ple v. Church, 2 Lans. 459 ; S. C, 57 Barb. 204. But where the decision of the court is not final, and does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at the general term, and thus obtain a review of the decision direct- ing the further proceedings. See Code, § 268 ; Bolles v. Buff, 55 Barb. 580. For the purpose of obtaining this review, the moving party may, within ten days after notice that the decision has been filed, except thereto, and make a case or exceptions, as in case of appeal. Code, § 268. For the proceedings on this motion, see New Trials. For the mode of obtaining findings of fact on a trial by referee, see Trial by Referee. Section 5. Exceptions to decision. a. In general. It is provided by the Code, that for the pur- poses of an appeal, either party may except to a decision on a matter of law arising upon a trial by the Gourt, within ten days after notice in writing of the judgment. Code, § 268. The power of thus excepting to the decision of the court, conferred by the Code, is a distinct privilege, granted for the purpose of enabling a party who may consider himself aggrieved, to bring up for revision any errors of law committed by the judge in rendering his decision. See People v. Albany & Susquehanna B. B. Co., 8 Abb. N. S. 122 ; S. C, 39 How. 49 ; S. C. affirmed, 2 Lans. 459. And the true nature of this class of exceptions is thus pointed out by the court of appeals : ' v The exceptions, which may and must be made within ten days after notice of the judgment, are those, and only those, which, under the former practice, were made to the rulings of the court, after the evidence was closed, and before the jury retired. This clause of the sec- tion (268) does not authorize exceptions to be taken, after judg- ment, to matters arising during the trial, and where there is opportunity to- except, at the time the adverse decision is made." Hunt v. Bloomer, 13 K. Y. (3 Kern.) 341 ; S. C, 12 How. 567. See, also, Johnson v. Whitlock, 12 How. 571 ; S. C, 13 N. Y. (3 Kern.) 344 ; Belknap v. Sealey, 14 1ST. Y. (4 Kern.) 143 ; Iremain TRIAL OF ISSUES OF FACT BY THE COURT. 223 Exceptions to decisions — Case or exceptions. v. Hider, 13 How. 148. Exceptions to the rulings of the court on the trial must be taken, and entered on the judge's minutes when made, and cannot be made afterward. lb. / The exception intended by the Code is to "a decision on a matter of law arising upon such trial," and exceptions to find- ings of fact are unnecessary and unavailing. Such matters are reviewed upon a case, as will be shown hereafter. Exceptions to conclusions of law, where the cause is tried by the court with- out a jury, are indispensable to raise any question for review. Enos v. Mgenbrodt, 32 K Y. (5 Tiff.) 444 ; Weed v. The N. Y. & Harlem R. R. Co., 29 N. Y. (2 Tiff.) 616 ; Russell v. Duflon, 4 Lans. 399. In order to be available the exception must be specific. It must be taken to the decision of some definite ques- tion of law, properly brought to the notice of the court. Walsh v. Washington Marine Ins. Go., 32 N". Y. (5 Tiff.) 427. If no ground is stated for the exception, it will always be disregarded. Renaud v. Peck, 2 Hilt. 137 ; Elwell v. Dodge, 33 Barb. 336 ; Yalton v. National Fund Life Assurance Co., 20 N. Y. (6 Smith) 32. See Newlin v. Lyon, 49 H". Y. (4 Sick.) 661. See New Trials. o. Case or exceptions. Either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him and his conclusions of law. Code, § 268. A general exception to all the conclusions of law is not sufficient ; unless it is claimed that all the conclu- sions are erroneous, and even in that case it is the better practice to take an exception to each and every refusal of the judge to find as requested, and to each of his conclusions upon the law excepted to. Magie v. Baker, 14 M". Y. (4 Kern.) 435. See Newlin v. Lyon, 49 N. Y. (4 Sick.) 661. Service of the exceptions must be made within the time pre- scribed by the Code, section 268, or, otherwise, it will be too late. But if they are included within a case served within that time this service will be sufficient, and they need not be afterward filed or served as separate matter. Johnson v. Whitlock, 12 How. 574 ; S. C, 13 N. Y. (3 Kern.) 344. An extension of the time to make a case alone does not extend the time to make exceptions 224 TEIAL OF ISSUES OF FACT BY THE COURT. Questions of fact — Questions of law — Waiver of exceptions. also. Hatch v. Fogerty, 7 Rob. 488 ; 40 How. 492 ; 10 Abb. M". S. 147 ; Beach v. Gregory, 3 Abb. 78 ; S. C, 1 Hilt. 201 ; affirm- ing S. C, 2 Abb. 203. See Sails v. Butler, 27 How. 133. The time to make exceptions may, however, be extended, and in a proper case, an order will be granted to file them nunc pro tunc. Sheldon^. Wood, 14 How. 18 ; S. C, 6 Dner, 679 ; Bortle v. Mel- len, 14 Abb. 228 ; Ooe v. Ooe, id. 86 ; S. C, 37 Barb. 232. See New Trials. c. Questions of fact. No finding of facts by the general terra shall be required for the purpose of review in the court of appeals, and if the judgment be reversed at the general term, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal ; and in that case, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review by the court of appeals. Code, § 268. The provision in this section, "that a judgment shall not be deemed to have been reversed upon questions of fact unless so stated in the order of reversal," is applicable only to cases tried by the court and a referee, and not to cases tried by jury. Sands v. Crooke, 46 1ST. Y. (1 Sick.) 564 ; Dickson v. Broadway & Seventh Avenue R. R. Co., 47 N. Y. (2 Sick.) 507. See Wright v. Hunter, 46 N. Y. (1 Sick.) 409 ; Tomlinson v. The Mayor of New York, 44 N. Y (5 Hand) 601 ; KirUand v. Leary, 50 N. Y. (5 Sick.) 678. d. Questions of law. In order to raise any question for review, where the cause is tried by the court without a jury, exceptions to conclusions of law are indispensable. Weed v. New York & Harlem R. R. Co., 29 N. Y. (2 Tiff.) 616 ; Mayor, etc., of New York v. Eroen, 38 N. Y. (11 Tiff.) 305; S. C, 35 How. 644; affirming 10 Bosw. 189 ; 24 How. 358. And no authority exists for reviewing, on appeal, a decision to which no exception has been taken ; on the contrary, it is plainly prohibited. Brewer v. Isish, 12 How. 481 ; Code, § 268. See Russell v. Duflon, 4 Lans. 399. In a case where the judge has heard the evidence of both sides, and orders judgment for the defendant, on the ground that the plaintiff has misconceived his remedy, such judgment cannot be reviewed by the court of appeals. Bridger v. Weeks, 30 N. Y. (3 Tiff.) 328. e. Waiver of exceptions. Exceptions may be waived. Thus, where, pursuant to rule 50 of the supreme court, a case is sub- TRIAL OF ISSUES OF FACT BY THE COUKT. 225 Waiver of exceptions — Entry of judgment — Mode of entering judgment — Appeal. mitted upon printed points, and no allusion is made in such points to an exception duly taken on the trial, the exception will be regarded as waived {Mayor, etc., of New TorJc v. Hamilton Fire Ins. Co., 10 Bosw. 537 ; S. C. affirmed, 39 K Y. [12 Tiff.] 45 ; S. C, 6 Trans. App. 244) ; and all exceptions not noticed in the counsel' s points, and which are not mentioned in his argu- ment, are likewise deemed to have been waived. Cumings v. Morris, 3 Bosw. 560 ; S. C. affirmed, 25 N. Y. (11 Smith) 625. See PMlbin v. Patrick, 6 Abb. N. S. 284 ; Rigney v. Savory, id. 284, n.; Enos v. Eigenbrodt, 32 N. Y. (5 Tiff.) 444 ; Russell v. Du- flon, 4 Lans. 399. The defendant does not, by a cross-examination, lose the ben- efit of an exception duly taken, for he has a right to test the correctness of testimony after exception. Duff v. Lyon, 1 E. D. Smith, 536. But, if a witness has been allowed to answer a question without objection, an exception subsequently inter- posed, must be disregarded. CheesebrougJi v. Taylor, 12 Abb. 227. See, further, as to waiver of exceptions, Worrall v. Parmalee, 1 N". Y. (1 Comst.) 519, and WestlaJce v. St. Lawrence County Mut. Ins. Co., 14 Barb. 206. Section 6. Entry of judgment. a. Final hearing. See ante, § 4, I; also, Interlocutory or Decretal Orders. b. Mode of entering judgment. It is provided by the Code " that the clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the -judgment book.' " § 279. And it is further provided that the judgment shall be entered in the judgment book. § 280. It should be entered at length by the clerk, and it is deemed to be so entered from the time it is left with him for that pur- pose, and from the time when the judgment-roll is filed, although in fact it may not be actually recorded until some time afterward. 1 Barb. Ch. Pr. 341. See Butler v. Lee, 33 How. 251 ; S. C, 3 Keyes, 70. As to the mode of entering judgment, see Judgment. Section 7. Appeal. a. In general. The only mode of obtaining a review of a decision of a cause, tried by a judge without a jury, and where the decision directs a final judgment, is by an appeal therefrom, under the provisions of section 348 of the Code. Hunt v. Bloomer, 12 How. 567 ; S. C, 13 K Y. (3 Kern.) 341 ;, Mallory Vol. Ill— 29 226 TRIAL OP ISSUES OF FACT BY THE COURT. Appeal. v. Wood, 14 How. 67; S. C., 3 Abb. 371 ; 6 Duer, 657; Watson v. Scriven, 7 How. 10 ; Wright v. Delafield, 11 id. 466. All the issues in the action must be disposed of before an appeal will lie. If there is a reference to state an account, no a,ppeal lies until the order or decree is entered upon the reference. Griffin v. Cranston, 5 Bosw. 658. But if the decision does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may have a review of the interlocutory decision by a mo- tion for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto, and make a case or exceptions, as provided in case of an appeal. Code, § 268. See Bolles v. Duff, 55 Barb. 580 ; 7 Abb. 1ST. S. 385 ; 38 How. 504. For the proceedings on this motion, see New Trial. An appeal from the judgment will not be heard by the general term, but will be dismissed, unless there is incorporated in the case a finding of facts by the justice who tried the cause. This is held to be the rule unless, before the cause is submitted, the par- ties are willing to consent that it be sent back for correction. Matthews v. Mayor, etc., of New York, 14 Abb. 209. Where a judgment, after a trial by the court, comes up for review, without any finding of facts, nothing will be presumed against the correctness of the decision, but the presumption will always be in favor of the decision rendered. Viele v. Troy & Boston R. R. Co., 20 N. Y. (6 Smith) 184 ; McKeon v. See, 4 Bob. 449. See 8 Alb. Law Jour. 107 ; Valentine v. Conner, 40 N. Y. (1 Hand) 248 ; Meyer v. Amidon, 45 JST. Y. (6 Hand) 169 ; Tom- linson v. Mayor, etc., of New TorTc, 44 N Y. (5 Hand) 651. See Appeals, post. CHAPTER IV. TRIALS OF ISSUES OF LAW. ARTICLE I. PREPARATION' FOR TRIAL. Section 1. Bringing on the trial. a. At what term and place. Under the former practice, prior to the adoption of the Code, issues of law were always heard at the general term, without reference to the place where the venue was laid, and the judiciary act of 1847 left such issues to be brought to argument as formerly, without reference to the venue. See Laws of 1847, ch. 280, § 46. The Code of 1849 required issues of law to be tried at a circuit court or special term (Laws of 1849, ch. 438, § 255) ; and it was held, that the trial might be brought on at any special term in the judicial district, or at a special term in a county adjoining that named in the complaint, though in another district. Ward v. Bams, 6 How. 274'. The above section of the Code (255) was so altered in 1851, as to leave, no doubt that an issue of law might be brought to argument at any general term in the district (see Laws of 1851 ; Code, § 255) ; but in the following year, it was again changed, and its original language substantially restored, as it existed at the time of the above decision, and as it exists at present, namely, that "issues of law must be tried at a circuit court or special term." Code, § 255. As the convenience of witnesses, which is the principal reason for confining the trial of an issue of fact to a particular locality, does not apply to the trial of an issue of law, it would seem that the rule as laid down in Ward v. Davis, 6 How. 274, is still applicable, and that an issue of law may now be tried at a special term in a county in the district other than that indicated as the place of trial in the complaint. Opposite views have, however, been entertained, as to which, see 1 MoneH's Pr. 700 ; 2 Till. & Sher. Pr. 514. b. Before what court. An issue of law must be tried by the court, at a special term, or at circuit, unless it be referred by con- sent of the parties, as provided in sections 270 and 271 of the Code. See Code, § 253. c. Notice of argument. The manner of noticing the issue for trial or argument, placing it on the calendar, etc., is in most 228 TRIAL OF ISSUES OF LAW. Notice of argument — Form of notice of trial or argument — Form of note of issue. respects the same as upon a trial by jury, as to which see ante, pp. 33 to 39. At any time after issue, either party may give notice of trial, at least fourteen days before the court, unless the ser- vice is by mail, in which case it must be given sixteen days before the "day of trial," including the day of service. Code, §§256, 412. By the " day of trial " in the latter section is undoubtedly meant the first day of term, and not the day at which the cause may actually be reached. See Manchester v. Herrington, 10 H". T. (6 Seld.) 164. Form of notice of trial or argument. {Title of cause.) TaTce notice, that the issue {or issues) of law in this action will be brought to trial at a special term of this court {or at a circuit court), appointed to be held in and for the county of , at the City Hall, in the city of (or at the court-house in the town of ), on the first Tuesday {or other first day of the term), of next, at o'clock in the forenoon of that day, unless the same has been previously tried. (Date.) " {Signature.) (Address.) d^Gopies of pleadings and points. At the opening of the argument the court must be furnished with a fair copy of the pleadings, and the court and opposite counsel should at the same time be furnished with copies of the points to be used on the argument, by the party bringing it on. See Sup. Ct., Rule 49. e. Note of issue. The party giving the notice of trial shall fur- nish the clerk, at least eight days before the court,' with a note of the issue, containing the title of the action, the names of the attor- neys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon the calendar accord- ing to the date of the issue. Code, § 256. Form of note of issue. court, special term. e?f., plaintiff, ) D. M., plaintiff" s attorney agst. V Issue of law. G. p., defendant. j E B } defendant's attorney. Demurrer. Issue joined February 21, 1873. No. of cause on previous calendar, 156 (or, not on previous calendar.) Plaintiff's (or defendant's) note. TRIAL OF ISSUES OF LAW. 229 Trial or argument — Proceedings on — General praotioe on argument. In the first judicial district there need be but one notice of trial, and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and, when called, may be brought to trial by the party giving the notice. Code, § 256. ARTICLE II. TEIAL OR ARGUMENT. Section 1. Proceedings on. a. Furnishing papers. The papers to be furnished, on the trial of the issue, is a copy of the pleadings, when the question arises on the pleadings, or on any part thereof ; or, where the question arises upon demurrer, such part only of the pleadings as relate to the question. It is the duty of the plaintiff to fur- nish the papers where the issue arises upon the pleadings, and of the party demurring, when the issue arises on demurrer. Sup. Ct., Eule 49. See ante, 228. •Each party is required to prefix to his points a concise state- ment of the facts of the case, with a 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 49, Sup. Ct. Although, when the question to be decided arises on demurrer, the party demurring must furnish the court with a copy of the pleadings and other papers, he is not required to serve them on the opposite party. Qallt v. Finch, 24 How. 193. b. Opening argument. The argument is opened by the coun- sel for the party demurring, who also furnishes the court with all the requisite papers. c. Reply. The counsel for the opposite party replies to the opening argument. d. Closing the argument. The argument is closed by the counsel for the demurrant. e. General practice on argument. The trial of an issue of law is merely an oral argument in court before the judge ; or, as is sometimes the case, a mere submission of the cause on written points without argument. On an oral argument the court will not usually hear more than one counsel on each side, or for more than one hour each. Rule 58, Sup. Ct. Hence, the de- 230 TRIAL OF ISSUES OF LAW.' The decision or judgment, how rendered — Withdrawing demurrer. murrant, in opening, should not occupy more than half an hour, and thus have as much time in closing. The court, however, will allow such time as may be required for a full, fair hearing. ARTICLE III. THE DECISION" OK JUDGMENT. Section 1. How rendered. a. In general. The decision may be pronounced on the argu- ment, or, the court may take the papers for examination and render the decision at some subsequent time. In the former case, an order may be drawn up at once, and submitted to the oppo- site counsel, or settled by the court, and entered. In the latter case, the decision is usually indorsed on the papers retained for examination, after which they are transmitted to the attorney for the successful party. The order is then drawn up by him, entered, and a copy served in the usual manner. See 1 Van Sant. Eq. Pr. 474. The decision must state the conclusions of law found. Code, § 267. b. Rules of decision. The decision of the judge upon the trial of an issue of fact is required to be given in writing. Code, § 267. And a judgment entered upon such a trial by the court, without such a written decision, is irregular. Thomas v. Tanner, 14 How. 426 ; Burger v. Baker, 4 Abb. 11. See Sands v. Church, 6 1ST. Y. (2 Seld.) 347 ; Ragan v. McCoy, 26 Mo. 166 ; Sutter v. Streit, 21 id. 157 ; Bates v. Bower, 17 id. 550 ; Russell v. Armador, 2 Cal. 305. But it is not void. Lewis v. Jones, 13 Abb. 427. And not only must the decision be in writing, but it must be signed by the judge. Thomas v. Tanner, 14 How. 426. Such, at least, is the more correct, as well as the safer practice. Burger v. Baker, 4 Abb. 11, 13, 14. The judgment upon a demurrer is pronounced by the court, and if rendered in open court is entered by the clerk in his minutes. If the judge reserves his decision, and takes the papers home with him, he notes his decision in writing upon the papers, and signs his name or initials at the end of the statement of the judgment rendered. When the decision is regarded as an order, see the next article. c. Withdrawing demurrer. If a party allows a demurrer to remain upon the record, which he has had leave to withdraw, he TRIAL OF ISSUES OF LAW. 231 Pleading over — Amendment. thereby incurs the risk of having that demurrer used by his ad- versary, as an admission, upon the subsequent trial. See Cutler v. Wright, 22 N. Y. (8 Smith) 472. d. Pleading over. Where a demurrer has been overruled, either at a general or a special term, it is usual to allow the de- feated party to plead over, where it appears that the demurrer was interposed in good faith ; but upon such terms as may be just. Code, § 172. If, however, the demurrer is clearly frivolous, or untenable, leave to plead over may very properly be refused by the court. And where the pleader interposes a demurrer in the honest belief that it might be available, but without any expectation of disposing of the cause on its merits, the demurrer cannot be deemed to have been put in in good faith, and leave to withdraw it and put in an answer will not be granted. Osgood v. Whittlesey, 10 Abb. 134 ; S. O, 2(5 How. 72 ; S. C. affirmed, id. 76. See Patten v. Harris, 10 Wend. 623. It may, however, be stated as a general rule, that whenever the case presents any question on the merits, leave to plead over will be given. On granting such leave, terms are usually imposed, such as the payment of the costs of the demurrer, which are almost universally allowed. See Getty v. Hudson Piver P. P. Co., 8 How. 177 ; Lord v. Vreeland, 24 id. 316 ; S. O, 15 Abb. 122. If leave to plead over is refused by the court, the opposite party is entitled to enter judgment upon the decision as of course. e. Amendment. Upon allowing a demurrer, it is almost the invariable practice for the court to grant leave to the pleader to amend upon terms ; but such amendment as is allowed by the decision must be made within the time therein prescribed, or the entry of judgment for the demurring party follows, as of course, provided there is no issue of fact to be tried. See Code, § 267. Though leave to amend is rarely refused, the granting of it may be opposed by the opposite party, and, where the pleading is clearly of a frivolous nature, such opposition may prevail. In case the demurrer fails, the court cannot properly, as part of the decision, grant leave to amend, to the party whose pleading is demurred to. It should be made the subject of a separate appli- cation to the court. Lord v. Vreeland, 13 Abb. 195; S. C. affirmed, 15 id. 122 ; S. O, 24 How. 316. It is specially provided by the Code, that if the demurrer be allowed for misjoinder of causes of action, the court may, in its discretion, and upon such 232 TRIAL OF ISSUES OF LAW. Filing decision— Issues of fact as well as of law — Proceedings after decision. terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action mentioned therein. Code, § 172. Upon overruling a demurrer, leave to amend the pleadings of both parties may be granted. See Rider v. Pond, 18 Barb. 179 ; S. C, 12 N. Y. Leg. Obs. 278. /. Filing decision. The decision of the court is required to be filed with the clerk within twenty days after the court at which the trial took place. Code, § 267. g. Service of copy of decision. In a case where leave to amend, or to plead over, is granted by the court, the decision of the judge should be entered as an order, and a copy served in the usual manner, upon the opposite party. Ji. Issues of fact, as well as of law. In a case where there are issues both of law and of fact, and the cause is brought on for the trial of the issues of fact, it will then be determined by the court whether the issues of fact shall be tried before the issue of law is disposed of. If an issue of fact be first tried, without any actual direction of the court, but also, without any objection from the adverse party, it will be deemed to have been first tried by order of the court. Warner v. Wigers, 2 Sandf. 635. See, also, Fry v. Bennett, 9 Abb. 45 ; S. C, 3 Bosw. 200 ; S. C. affirmed, 28 1ST. Y. (1 Tiff.) 324. On demurring to part of an answer, the plaintiff may put the cause on the calendar for a trial of the issues of fact, without waiting for the decision upon the issues of law. Palmer v. Smedley, 13 Abb. 185. i. Exceptions to decision. Upon the trial of an issue of law no exceptions are necessary or proper. See ante, pp. 222 to 225, as to exceptions to decision of judge on the trial of an issue of fact. AETICLE IV. PEOCEEDISTOS ATOBK DECISION. Section 1. In general. If, by the decision of the court, leave to amend or to plead over be granted, the party in whose favor the decision is made should see that the time allowed for either purpose is properly limited, and that any terms imposed on granting such leave are clearly expressed ; for, ho further step can be taken in the cause, until the expiration of the time so allowed ; or, of an extension thereof, duly obtained. TRIAL OF ISSUES OF LAW. 233 Proceedings after decision — Assessing damages, or further application to court. By the construction given to the second subdivision of section 349 of the Code, all decisions of demurrers are treated as orders, when they give leave to amend, so long as the time to amend is running (see Moza v. Sun Mutual Ins. Co., 22 How. 60 ; S. C, 13 Abb. 304) ; hence, the defeated party should procure an order to be entered, directing judgment against him unless he so amends or pleads ; for the reason that he can then appeal from the order, whereas, he could otherwise appeal only from the judgment. See Wightman v. Sharikland, 18 How. 79. If such party avail himself in due time of the leave granted to amend, or plead over, a new issue is thereby formed, and the prior proceedings become obsolete, except only so far as they may have a controlling effect on those subsequent, in preventing the objectionable matter from being again brought forward. But, in case the party suffers the time allowed to elapse without tak- ing the requisite steps, he will be precluded from making further amendments, if the demurrer be to a part of the pleading only ; or, if it be to the whole pleading, the successful party will be entitled to judgment on such demurrer, precisely as if leave to amend or to plead over had not been granted by the court. Moza v. Sun Mutual Ins. Co., 22 How. 60 ; S. C, 13 Abb. 304. If the answer demurred to is sufficient to bar the action, and the demurrer is overruled, the proper judgment is a final one against the plaintiff, that he take nothing by his complaint, and that there be a dismissal thereof, even though there may be issues of fact joined in the cause. Wightman v. Sharikland, 18 How. 79. a. Judgment for costs. Where there is an issue of law and an issue of fact joined in a cause, no judgment for costs can be entered in favor of the party who prevails upon the issue of law, until the issue of fact is disposed of ; and such a judgment would, if rendered, be irregular, and would be set aside on mo- tion. Masters v. Barnard, 6 How. 113, 114 ; S. C, 1 Code R. N. S. 407. See Palmer v. Smedley, 13 Abb. 185. This rule in relation to costs of demurrer does not, however, apply to the costs on appeal from an order overruling a demurrer. Henderson v. Jackson, 2 Sweeny, 603. o. Assessing damages, or further application to court. It frequently occurs, in equity cases, that a further application to the court is necessary as for an order of reference to take an account, or to prove some fact necessary to enable the court to Vol. III.— 30 234 TRIAL OF ISSUES OF LAW. Trial of issues of fact, complete the judgment, or to carry it into execution, or, to ascertain the nature and extent of the relief to be adjudged ; and such application will, of course, be upon notice to the oppo- site party. It must be made in the same manner as an applica- tion for judgment on failure to answer where the summons has been personally served. Code, § 269. See 1 Van Sant. Eq. Pr. 477. c. Trial of issues of fact. Where there is an issue of law and also an issue of fact in the same action, the trial of the former, in almost every case, brings about a postponement of the trial of the latter. As where one of several separate causes of action in the complaint has been demurred to, and the residue answered to by the defendant, it would be clearly improper for the action to be partly tried on the issues of fact, leaving the other issues to be settled and tried at a future time ; for, on the decision of a de- murrer, it is usual for the court to give the party against whom the decision is made leave to amend, who then has an opportu- nity for framing other issues of fact in the action. Where the decision is made on the argument, such issues are frequently framed on the spot. Thus, where the plaintiff demurs to one of several answers, and the demurrer is overruled, the answer de murred to then makes an issue, unless it be a counter-claim, in which case the plaintiff, if he please, may draw and serve a reply at once, and go to trial. Or, if such demurrer be sustained, the defendant, if he please, may abandon the answer demurred to, or amend it on the spot and go to trial. See 1 Van Sant. Eq. Pr. 474. Where there are issues of fact remaining undisposed of, in the action, final judgment against a defendant on an issue of law cannot be perfected. The decision of the court remains an order merely, from which an appeal lies to the general term, but not to the court of appeals, and the successful party must await the determination of the issues of fact before he can enter and perfect final judgment on the whole record. Paddock v. The Bpring- field Fire Ins. Co., 12 K Y. (2 Kern.) 591. See Adams v. Fox, 27 N. Y. (13 Smith) 640 ; Ferris v. Aspinwall, 10 Abb. K S. 137. But final judgment may be entered on an issue of law against a plaintiff, where there are still issues of fact in the same action ; the rule of practice in this respect being thus stated, in Wight- man v. ShanJcland, 18 How. 79 : "If there is an issue of fact, TRIAL OF ISSUES OP LAW. 235 Trial of issue of fact — Taxing costs. and also an issue of law, and the latter is first tried, and the de- cision npon it is in favor of the defendant ; but the question decided does not bar the action, the issue of fact must be tried before the judgment-roll is made up, but if the defendant's plea in answer is sufficient to bar the action, and is demurred to, and the demurrer is determined in favor of the answer, the judgment, that the plaintiff take nothing by his complaint, is the proper judgment, though there may be issues of fact joined in the cause. And the reason is quite obvious. If the defendant states, in one answer, facts which constitute a bar to the action, and these facts are admitted by the demurrer, there can be no necessity of try- ing any of the issues of fact, as the defendant must have judg- ment upon the whole record." There is considerable discrepancy in the several provisions of the Code as to which shall have the preference on the calendar, an issue of law or an issue of fact. Thus, by sections 251 and 255 preference is given to issues of law, unless the court other- wise direct, while section 257 provides that, unless for the con- venience of parties, or the dispatch of business the court shall otherwise direct, the issues on the calendar shall be disposed of in the following order : 1. Issues of fact to be tried by a jury. 2. Issues of fact to be tried by the court. 3. Issues of law. The whole subject being under the control and subject to the discretion of the court, but little inconvenience can result from the discrepancy. In practice, the provisions of section 251 are generally observed especially where tnere are issues of law and of fact. d. Taxing costs. If judgment is rendered in favor of a party demurring, and the party whose pleading is found defective is allowed to amend on payment of costs, the costs for proceedings before notice of trial should be allowed. Hendricks v. Bouck, 2 Abb. 360 ; S. 0., 4 E. D. Smith, 461 ; Collomb v. Caldwell, 5 How. 336 ; S. C, 1 Code R. K S. 41. See Keil v. Rice, 24 How. 228 ; Saratoga & Washington B. H. v. McCoy, 7 id. 190 ; Consider- ant v. Brisbane, 7 Abb. 345, n ; S. C, 1 Bosw. 644. On the other hand, where the demurrer is overruled, with leave to answer over, the successful party is not entitled to claim the payment of such costs as part of the costs to be paid on answering. Such costs are only taxable once on a final recovery. 236 TRIAL OF ISSUES OF LAW. Taxing costs — Entering judgment — Appeal.. Young v. Oori, 13 Abb. 13, n; Anonymous, 3 Sandf. 756; Phipps v. Van Cott, 15 How. 110 ; Nellis v. Be Forrest, 6 id. 413 ; Roberts v. Morrison, 7 id. 396 ; S. C, 11 N. Y. Leg. Obs. 16 ; Grary v. Norwood, 5 Abb. 219 ; Taw Valkenburg v. Tara Schaick, 8 How. 271. As the condition of amending or pleading over, subsequent costs before trial, a trial fee for an issue of law, and term fees, in case any are incurred, are properly taxable in every case. Any necessary disbursements may also be taxed. lb. See Van Val- kenburg v. Van Schaick, 8 How. 271. And the same costs are taxable and payable, as a condition of allowing an amendment or pleading over, on every occasion on which the case may come before the court on demurrer. Consid- erant v. Brisbane, 7 Abb. 345, note ; S. 0, 1 Bosw. 644. So, where two or more defendants demur separately, and the demurrers are allowed, with leave to the plaintiff' to amend, each defendant is entitled to costs. Qollomb v. Caldwell, 5 How. 336 ; S. C, 1 Code R. N. S. 41. And where two defendants put in separate answers, to which the plaintiff demurred, and the demurrers were allowed with leave to the defendants to amend on payment of costs, it was held, that the plaintiff was entitled to a separate bill of costs against each defendant. Comstock v. Salleck, 4 Sandf. 671. But this decision has been questioned. See Buell v. Gay, 13 How. 31 ; see, also, Phipps v. Van Cott, 15 id. 110. Costs awarded on a demurrer to part of a pleading are held to be final, and not interlocutory in their nature, and they cannot, therefore, be recovered until judgment is rendered upon all the issues. Mora v. The Sun Mutual Ins. Co., 22 How. 60 ; S. C, 13 Abb. 304 ; Palmer v. Smedley, 13 id. 185. e. Entering judgment. Judgment upon the decision of the court must be entered within four days after such decision is filed with the clerk. Code, § 267. /. Appeal. An appeal is given by the Code from the special to a general term of the supreme court, from an order sustaining or overruling a demurrer. Code, § 340, subd. 2. But the decis- ion of the supreme court upon the demurrer cannot be reviewed except by an appeal from the judgment, and upon such appeal any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed. Code, § 11, subd. 1. Until the entry of final judgment upon the demurrer, it is not in a condition to be reviewed in the court of appeals. Adams v. TKIAL OF ISSUES OF LAW. 237 Form of order sustaining demurrer — Order overruling demurrer. Fox, 27 N. Y. (13 Smith) 640 ; Paddock v. The Springfield Fire and Marine Ins. Co., 12 N. Y. (2 Kern.) 591 ; Ferris v. Aspin- wall, 10 Abb. N. S. 137 ; Weaver v. Barden, 49 H". Y. (4 Sick.) 286, 297. See Subject of Appeals. Form of order sustaining demurrer. (Title of cause.) (At a special term, etc.) This action having been brought to trial on the issues of law joined therein, and after hearing E. B., in support of the demur- rer, and D. M. (or, no one appearing), in opposition : Ordered : That said demurrer be sustained, and that defend- ant (or plaintiff) have judgment thereon ; but with leave to the plaintiff (or defendant) to amend the complaint (or answer, or reply), within twenty days, on payment of costs. Order overruling demurrer. (Title of cause). (At a special term, etc.) This action having been brought to trial on the issues of law joined therein, and after hearing D. B. in support of the demur- rer, and J. K. (or, no one appearing) in opposition : Ordered : That said demurrer * be overruled, and that plain- tiff (or defendant) have judgment thereon ; but with leave to the defendant (or plaintiff ) to withdraw his demurrer (and put in an answer or a reply) within twenty days, on payment of costs. Order sustaining demurrer in part, and overruling it in part. (Same as last form to the *, and continue :) to the first cause of action set forth in the complaint be sustained ; and that the defendant have judgment thereon ; and that the demurrer to the second cause of action be overruled ; and that the plaintiff have judgment thereon, but with leave to the plaintiff to serve an amended complaint within days, and to the defendant to withdraw his demurrer to the second cause of action, and to answer the same. CHAPTER V. REFERENCE, AND APPOINTING- A REFEREE. ARTICLE I. PROCEEDINGS TO APPOINT A EEEEKEE. Section 1. Nature, object and origin of the appointment. a. In general. The words "arbitrator" and "referee" are some- times used synonymously. The principal difference in practice is, that there may be an arbitration without an action, while a reference is a proceeding in a pending action, although in the latter case the referee is sometimes called an arbitrator. An arbitration, in its technical sense, relates to the submission of matters in difference to individuals selected by the parties, to hear and decide the points in dispute, who, while they act in the capacity of judge, as well as jury, do not, in any proper sense, proceed in such a manner that their proceedings consti- tute an action at law or a suit in equity ; and their acts are not reviewed as proceedings in an action. A reference, in its usual sense, is a proceeding in an action, and the referee takes the place of both judge and jury, and his acts may be reviewed like any other proceeding in the course of the action. Another difference is, that an arbitration is a voluntary mat- ter so far as the submission is concerned, while in many cases a reference may be compelled in an action pending in court. It is not intended to discuss here any proceedings, except such as may be regarded as references of matters or questions arising in the course of an action at law or a suit in equity, or in some way connected with, or relating to, such actions or proceedings. In actions at law, a reference, properly made, is a substitute for a trial by jury ; and the report of the referee is regarded in the same light as the verdict of a jury. Alexander .v \ Fink, 12 Johns. 219 ; Beebe v. Bull, 12 Wend. 507 ; Crouch v. Gridley, 6 Hill, 250. In equitable actions, references are frequently con- venient or necessary as a means of furnishing the court with information ; and the referee then performs the duty of a former REFERENCE. AND APPOINTING A REFEREE. 239 Proceedings to appoint a referee. master in chancery ; and this is also the rule where a reference is ordered in cases in which a question of fact arises, otherwise than upon the pleadings, during the progress of the action, whether upon motion or otherwise. In actions at law, where all the issues are referred, the referee acts both as court and jury. In equitable suits, upon a reference of all the issues, the referee acts in the place of the court, which tries issues of fact without the aid of a jury. In all other references of some special matter, or for the purpose of acquiring information to aid the court in deciding a cause, or for carrying a decree or judgment, or other proceeding, into effect, the referee acts as an officer of the court, and in its place for the purpose specified in the order of reference. As the reference of the issues in the action to a referee for trial, is a legislative substitute for a jury trial, the statutory authority is to be pursued, or the proceeding will be a mere arbitration instead of a reference. Blunt v. Whitney, 3 Sandf. 4 ; Bodge v. Waterbury, 8 Cow. 136 ; Rathbone v. Lownsbury, 2 Wend. 595 ; Jones v . Cuyler, 16 Barb. 576. The court, however, will indulge all reasonable intendments or constructions in favor of sustaining the proceeding as a reference. Merritt v. Thompson, 27 N. Y. (13 Smith) 225 ; Healy v. Oilman, 6 Rob. 479, 495. In some cases the parties have no choice as to the mode of . trial, as the court has the power to order a reference even against the wishes of the litigants. But, in a much larger proportion of cases the parties have a right to try the cause before the court and a jury, or by the court alone, in equitable actions, while they may consent to a reference of any or all the issues in the action, whether it be a legal or an equitable one. Under a system which permits such a general reference of every action and of all questions therein, whether of law or of fact, there are some consid- erations deserving the attention of parties and of practitioners. Some of the advantages of a reference are, that the hearing is not limited to some particular time and place, like a trial at the circuit, and, therefore, the court may be considered as open at all times ; the place of trial may be fixed with reference to the convenience of parties and witnesses, thus saving time and expense ; the parties may choose a referee mutually satis- factory, which is not always the result of selecting a jury as they are ordinarily drawn and impaneled.; the labors of counsel are 240 REFERENCE, AND APPOINTING A REFEREE. Proceedings to appoint a referee — Reference prior to the Code. — — __ — . i - . greatly reduced when but a single cause is on trial, instead of having the charge of several important causes to be disposed of in the hurry and press of business at circuit, thus securing a full and careful trial of the issues ; the selection of a referee who is skilled in some particular subject is sometimes important, and it may be secured in this mode of trial ; the evidence is taken in writing by the referee, so that it may all be recollected and duly examined and considered ; the summing up of the cause may be carefully done by means of a full, previous preparation, and ample time for presenting arguments, which cannot always be done at circuit trials ', the referee may take notes of all argu- ments, and of all authorities cited, and may thus take time to give both a full examination before deciding the cause ; and the report may be so framed as to provide for every interest of every party to the action. A reference avoids the delays and expenses of attending several circuits before a cause can be regularly reached and heard ; it avoids the inconveniences and risks of the absence of a material witness who may be most important and yet absent when the cause is called, thus losing his evidence or postponing the cause at great expense ; it enables a party to supply unexpected defects in proof, or to meet evidence which operates as a surprise ; it enables a party to secure the attend- ance of such counsel as the party prefers, by trying the cause at such a time as they can attend ; it is a safe mode for a party having a good cause of action, or a valid defense, for this mode of trial will secure a full hearing of evidence or of arguments ; the referee possesses all the general powers which will enable him to dispose of the case as carefully and sufficiently as a trial before the court, and upon the whole finding and report there may be a full review of all his decisions during the progress of the action before him. Some of the inconveniences of a reference are, that there are great delays which result from numerous postponements, when the number of them, or the intervening time between them might be less ; that the expenses are sometimes large, owing to the amount of fees paid to the referee, and for the unnecessary hearings, at many of which little is done except to adjourn the hearing, and the advantage of a free discussion by a full, fair and intelligent jury is not secured. o. Reference prior to the Code. Under the former practice, when actions at law and suits in equity were separate proceed- REFERENCE, AND APPOINTING A REFEREE. 241 Reference prior to the Code. ings, in different courts, there was a right to a reference in actions at law in some cases. But the powers of the court in ordinary or compulsory references were not so extensive as those now authorized, and a reference of all the issues by the consent of the parties was not provided for in the statute. Under the Revised Statutes there might have been a reference in an action at law, which was at issue in a court of record, if the cause of action was founded upon contract ; or, in case of a de- fault entered for want of a plea, where it appeared that the trial, or the assessment of damages therein, would require the exami- nation of a long account on either side. 2 R. S. 384 (398), § 39. In such cases the court might order the reference on the application of either party, or, after issue joined, without such application ; or, on the application of the plaintiff, after a default entered for want of a plea. lb. Again, where a cause was noticed for trial at a circuit, and it appeared that the trial would require the examination of a long account on either side, the circuit judge might order a reference of the cause. 2 R. S. 384 (399), § 41 ; Laws of 1845, ch. 163 ; Laws of 1836, ch. 499. The supreme court had power, however, to review the order and to revoke it, if deemed proper to do so. Van Rensselaer v. Jeweit, 6 Hill, 373 ; Thomas v. Reab, 6 Wend. 503 ; Levy v. Brooklyn Fire Ins. Co., 25 id. 687. This statute does not violate either the National or the State constitutions as to the right of trial by a jury, in the cases in which such a trial had been heretofore used, for such references had been in use long before the adoption of the State constitution under consideration. Lee v. Tillotson, 24 Wend. 337. If a plea which required a replication was put in, there must have been an issue joined before a reference could be ordered. Tale v. God- dington, 21 Wend. 175. Under this statute there could not be a reference in actions for torts. Silmser v. Redfleld, 19 Wend. 21 ; DedericFs Adm'rs v. Richley, id. 108 ; 2 Hill, 271 ; Beardsley v. Dygert, 3 Denio, 380. And, although there might have been many items of dam- age involved, no reference was permitted, unless the trial re- quired the examination of a long account, in the ordinary accep- tation of the term. lb. ; Van Rensselaer v. Jewett, 6 Hill, 373 ; Thomas v. Reab, 6 Wend. 503. No reference was ordered where difficult questions of law would arise on the trial, nor in cases in which there were but few Vol. III. — 31 242 REFERENCE, AND APPOINTING A REFEREE. Reference under the Code. items of account involved. A compulsory reference could not be ordered, except in the cases mentioned, and a reference by con- sent, in cases not provided by statute, was equivalent to an arbitration. Section 2. Reference under the Code. a. In general. The Code has greatly extended the power of the courts, and the rights of the parties as to the reference of causes ; and, under the present practice, there is no limit to the right of the parties in securing a reference, if they choose to do so. The right to a reference does, not at all depend upon the nature of the action, nor whether it be legal or equitable ; or for a tort or upon contract, or whether the issues are of fact or of law ; for, in every case, the issues may all or any of them be referred upon the written consent of the parties. Code, § 270. The effect of this change will be very advantageous in many instances, which will be noticed in the subsequent pages of this work. It will be noticed that the statute provides for the refer- ence of all or any of the issues in the action, and, therefore, the right to a reference by consent will depend upon the existence of issues of fact or of law. The provision does not extend to all pending actions in which no issues have been joined, and, there- fore, if no answer to the complaint is served, or, if no reply is served where one is required by law, or, if no demurrer is inter- posed so as to raise an issue, there can be no reference under section 270, and the case must be disposed of in some other manner. But, if issues are joined, there must be a consent of the par- ties to authorize the court to order a reference in most'instances in which issues are joined, because most of the actions are of such a nature that a compulsory reference cannot be ordered. There are some cases, however, in which the courts have the power to compel a reference, because such a course is best for the public interests. The examination of long accounts on a trial at the circuit would be most detrimental to the interests of other litigant parties, and would needlessly waste the time of the court, of jurors, and of the public in general. So, where the taking of an account is necessary for the information of the court, or, where a question of fact arises otherwise than upon the pleadings in any stage of the action, the power to dispose of these matters by the aid of a reference is a most useful one, and it is granted by statute. Code, § 271. The court may exercise REFERENCE, AND APPOINTING A REFEREE. 243 Reference under the Code — In what actions. this authority upon the application of either party, or upon its own motion, unless the investigation of such cases will require the decision of difficult questions of law. lb. Ante, 9 to 12. It is evident that such a compulsory power is essential in many cases ; for, while there may be a reference in all . cases, upon the written consent of the parties, it may happen that one or both of them will refuse to give such consent ; and, in that case, the cause must be tried by the court or by a jury, greatly to the detriment of the interests of the public at large. In the course of an action there are numerous instances in which references, other than for the trial of the issues joined, are necessary, and the court possesses full authority for the pur- pose of ordering the reference. See Interlocutory Decrees, Orders, etc. b. In what actions. In few things have greater changes been made by the Code than those in relation to the reference of causes. The extent of the change is not fully appreciated without a con- trast of the former powers of the court in that respect with those now exercised. Under the old law there were but few classes of cases in which a reference could be ordered, either by the court on its own motion, or upon the consent of the parties ; and those cases were in actions at law. The instances in which courts of equity referred matters to the masters will not be noticed at this time. At the present time the supreme court has general jurisdiction over all actions, whether legal or equitable. Formerly, in actions at law relating to real or personal property, or to per- sonal rights, including all the forms of action founded upon contracts, express or implied, or upon torts of some kind, the number of cases in which an action might be brought, was very great. And the same was true of actions in equity, in which there was such a variety and number of cases which fell exclu- sively within equitable jurisdictions. These actions may now all be brought in the supreme court, and, by the written consent of the parties, all or any of the issues joined in any action, legal or equitable, may be referred for trial by a referee. The practical result is, to transfer to a referee all the former power of a court, or a court and jury, or of the chancellor, or a vice-chancellor, in the administration of civil justice, or of the powers of the court now possessed in the trial of issues. The most important rights or interests mav thus be submitted for examination and deter- 244 REFERENCE, AND APPOINTING A REFEREE. Consent to reference. urination by a tribunal selected by the parties themselves, and yet possessing all the advantages of a trial by the ordinary courts, in the usual mode. c. Consent to reference. Although the Code confers so great powers as to the reference of actions, it still imposes the condi- tion that a reference must, in many cases, be founded upon the consent of the parties to the action. Upon general principles of law, this consent, to be valid, must be given by those who arc legally competent for that purpose ; and, therefore, it can only be given by those parties who are capable of appearing in the action without a guardian, next friend, committee, or some other representative of that kind. By the terms of the statute, an in- fant defendant is not competent to consent in such a case. Code, § 273. And, since the statute does not confer any additional pow- ers upon persons not legally capable of giving their consent, the proper construction of the statute is that such consent can only be given by such parties as are competent to do valid acts in their own proper person and right. An infant plaintiff may appear in an action by guardian, and, in that case, the guardian, as one of the parties, may give a valid consent to a reference. And the same rule may be applicable to every case in which there was an appearance by guardian, committee, or other repre- sentative. When the parties consent to a reference, the appoint- ment of a referee, or of referees, is not a matter of favor, or of discretion of the court, but one of strict right ; for, upon the execution of a proper written consent, the statute is imperative, and declares that a reference shall be ordered to the referee named, and to no other person. Code, § 273. A strict compliance with the language of the statute would re- quire a written consent. Code, § 270. As no particular form is prescribed, any consent which clearly describes the action and the issues to be referred, and which names the referee proposed, will be sufficient. The term, "written consent of the parties," implies that such consent should be signed or subscribed by the parties. And a consent, written out at length, but not subscribed by them, could not be enforced by either party against the other, if the objec- tion of a want of signature should be made in opposition to a reference, and before it was made or entered by the clerk. Either party may insist upon a written subscribed consent, for nothing else will constitute a valid agreement within the meaning REFERENCE, AND APPOINTING A REFEREE. 245 Consent to reference. of the statute. An oral agreement may be withdrawn before an actual reference is ordered by the court, even though such agree- ment referred to a written consent which was proper in form, but was not subscribed. Such a subscription, however, may be waived, even by an oral agreement, if it is so far carried into effect as to be entered by the clerk in pursuance of an order duly made in open court. A written, unsigned consent, which is agreed to by the parties, and which is submitted to the court, will be conclusive if the court acts upon it and orders a reference in pursuance of its terms. Waterman v. Waterman, 37 How. 36 ; People v. MeOinnis, 1 Park. 387 ; Leayeroft v. Fowler, 7 How. 259. See Embury v. Connor, 3 N. Y. (3 Comst.) 511. The parties may waive a written consent altogether, and act upon an oral agreement, which will be conclusive ; and, there- fore, if the counsel for the respective parties agree in open court that a cause shall be referred to a referee, who is named, and the court acts upon this agreement and orders the reference, which is duly entered by the clerk, the reference will be conclusive upon the parties. Keator v. Ulster & Delaware Plank Road Co., 7 How. 41 ; Leayeroft v. Fowler, id. 259 ; Andrews v. Elliott, 5 Ell. & Bla. 502 ; 32 Eng. Law & Eq. 311. A consent, whether written and unsigned or merely oral, when once duly acted upon in open court, and carried out by being written in the minutes of the clerk, in pursuance of an order of the court, ought to be consid- ered a compliance with the statute, and enforced as a written consent. The object of a written consent is to prevent disputes as to the terms of the agreement, and to furnish evidence upon which the court may act ; and when the parties appear in open court and agree upon a reference, there is the same propriety in enforcing the agreement that there is in compelling the perform- ance of other stipulations of a similar character, which are daily enforced. But, there are other grounds upon which a written consent may be waived, for, it is a very general and well-settled rule that an omission or an irregularity in the practice may be waived by the opposite party, if he voluntarily takes any subsequent steps in the action which recognize the validity or regularity of the previous proceedings ; and, therefore, if a party proceeds upon a reference, he will waive all objection to the order of reference on the ground that it was irregularly entered. Garde v. Sheldon, 3 Barb. 232; Qwinn v. Lloyd,! Rob. 157; Keator v. Ulster & 246 REFERENCE, AND APPOINTING A REFEREE. Consent to reference — Compulsory reference. Delaware Plank Road Co., 7 How. 41 ; Leay croft v. Fowler, id. 259 ; Ludington v. Taft, 10 Barb. 447. Where the parties agree in writing to refer a cause to a partice ular referee, neither of them has a right, without the consent of the other, to substitute the name of an other person as referee ; and if, in obtaining the order of reference, such substitution is made,- the opposite party may repudiate such act, and, on his objection, the reference will be held to be void. Saner v. Bliss, 7 How. 246. But, if the party does not object, and he appears before the referee and proceeds with the cause as though the reference had been regularly made, such acts will be a waiver of the objection. Quinn v. Lloyd, 7 Rob. 157. Proceedings upon a reference, while they waive every objec- tion as to the regularity of the order of reference, do not waive the objection that the court had no jurisdiction to make the order. Garde v. Sheldon, 3 Barb. 232. The appointment of a referee ought to be entered upon the records of the court, at least in the minutes of the clerk, for a mere memorandum of the presiding judge upon his calendar is not suffiqient for that purpose. Bonner v. McPhail, 31 Barb. 106. A proper entry of the order, at a subsequent date, by the con- sent of the parties, will not render the reference so far valid as to sustain a prosecution for perjury against a witness who testified before such referee at a time anterior to the proper entry of the order of reference. lb. It may be that the consent of the parties, and the act of the court founded thereon, would render the pro- ceeding valid, or at least conclusive as between the parties to the action. lb. As to supplying defects nunc pro tunc, see Bucklin v. Chapin, 35 How. 155; 53 Barb. 488; Scudder v. Snow, 29 How. 95. The consent to refer need not be given by the parties in person. It may be done by the attorney on record. Smith v. Troup, 7 C. B. 757 ;6D. & L. 679 ; Fatiell v. Eastern Counties Bail- way Co., 2 Exch. 344 ; 6 D. & L. 54 ; Wilson v. Young, 9 Penn. St. (9 Barr) 101 ; Wade v. Powell, 31 Ga. 1 ; StoTcely v. Robin- son, 34 Penn. St. (10 Casey) 315. d. Compulsory reference. As has been previously stated, there is a large class of cases in which a reference may be ordered without the consent of parties. The Code provides that where REFERENCE, AND APPOINTING A REFEREE. 247 - Compulsory reference. the parties do not consent, the court may, upon the application of either party, or of its own motion, except where the investi- gation will require the decision of difficult questions of law, direct a reference in the following cases : 1. Where the trial of an issue of fact shall require the examina- tion of a long account on either side ; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein ; or, 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect ; or, 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. Code, § 271. So, also, on an application to the court for judgment on the failure of the defendant to answer, the court may, in its discre- tion, order a reference to take an account, or hear proof, if the taking of an account, or the proof of any fact is necessary to enable the court to give judgment ; and where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the ex- amination of a long account be involved, by a reference. Code, § 246. So, upon a judgment for the defendant upon an issue of law, a reference may be ordered, if the taking of an account, or the proof of any fact be necessary to enable the court to complete the judgment. Code, § 269. The court has power, also, to direct that the damages sustained by a party, against whom an injunction has been improperly issued, shall be ascertained by a reference. Code, § 222. Vol. 2, p. 94. The Code also provides for the appointment of a referee to take the affidavit or deposition of any person who shall refuse to make the same, when such affidavit shall be necessary for the purpose of sustaining or opposing a motion to be made in a court of record. Code, § 401. See Motions, Orders, etc. From the provisions of the Code above noticed, it will be seen that a compulsory reference may be ordered for purposes uncon- nected with, or merely incidental to, the trial of issues raised by the pleadings. The mode of appointment, and the powers and 248 REFERENCE, AND APPOINTING A REFEREE. Compulsory reference. duties of referees appointed for such purposes will be found fully discussed elsewhere ; and in this chapter will be discussed such questions only as relate to the trial of the issues raised by the pleadings in an action. The power to order a compulsory reference to try an issue of fact is expressly given by section 271 of the Code. The language of the section is general and authorizes the reference of any action, the trial of which shall involve the examination of a long account on either side. This provision is subject, however, to the limitation imposed by section 2 of article 1 of the constitu- tion of this State, which declares "that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever." Townsend v. HendricTcs, 40 How. 143. The constitu- tions of 1822 and 1777 contained the same provision, and as the right to a trial by jury as it existed in 1777 has been continued and preserved to this day, no statute subsequently passed can impair it. lb. This construction of section 271 of the Code renders it necessary to inquire in what cases a trial by jury had been a matter of right prior to the adoption of the present con- stitution. It may be stated, generally, that all common-law actions have been triable by jury in this State as far back as its jurisprudence extends, subject only to the exception of actions on contracts, involving the examination of long accounts, which actions have always been referable ; and as the right to a jury trial where it formerly existed is not impaired by the Code, it follows as a rule, without exception, that the power of the court to order a com- pulsory reference is confined to actions on contracts in which the trial of an issue of fact will require the examination of a long account. Townsend v. HendricTcs, 40 How. 143 ; Kain v. Delano, 11 Abb. N. S. 29. And not only must the action arise on contract and involve the examination of a long account, but the accounts must be directly, and not collaterally or incident- ally involved, and must be the immediate object of the suit, or the ground of the defense. Kain v. Delano, 11 Abb. N. S. 29 ; Cameron v. Freeman, 18 How. 310 ; S. C, 10 Abb. 333 ; Todd v. Hooson, 3 Johns. Cas. 517. If the right of either party to recover, either upon the cause of action alleged in the complaint, or upon a counter-claim set up in the answer, depends upon the result of a long account, and the action is in its nature referable, it is clear that a com- "REFERENCE, AND APPOINTING A REFEREE. 249 Compulsory reference. pulsory reference may be ordered, either of the whole or of a part of the issues. Mills v Thursby, 11 How. 113 ; Jackson v. Be Forest, 14 id. 81 ; Ross v. Mayor of New York, 2 Abb. N. S. 266 ; Atocha v. Garcia, 15 Abb. 303 ; Smith v. Dodd, 3 E. D. Smith, 348. And it has been held, that wbere an action embraces several issues, and the trial of some one of them will involve the exami- nation of a long account, a compulsory reference may be ordered even though the determination of some other issue may render it unnecessary to try the first-named issue at all ; and that whether in cases of that description the whole of the issues should be referred, or the taking of an account merely, and whether the account shall be taken before the trial of the other issnes, or after, are matters in the discretion of the court, to be governed by the particular circumstances of each case. Whit- taker v. Desfosse, 7 Bosw. 678 ; Batchelor v. Albany City Ins. Go., 6 Abb. N. S. 240 ; S. C, 37 Hosv. 399 ; 1 Sweeny, 346. But the Code does not give an absolute right to have all issues referred, merely be cause a long account is involved. A compul- sory reference in any case is not a matter of right, as the language of section 271 of the Code is, that the court may, not that it shall, order a reference in the cases specified. Wheeler v. Falconer, 7 Rob. 45 ; Godfrey v. Williamsburgh Oity Fire Ijis. Co., 12 Abb. N. S. 250 ; Goodyear v. Brooks, 4 Rob. 682 ; S. C, 2 Abb. N. S. 296. And as a referee has no power to adjust equities between parties, or to order any thing but the payment of money, and yet his decision is to be the judgment of the court, it is evident that it would be unjust and impolitic, in many cases, that the mere necessity of taking an account should drag with it, for trial before a referee, all other matters in the action which may infinitely more require the vigilance, discretion and experience of the court, than merely taking an account. The Code, by expressly permitting, even where a long account is involved, the referee to be confined to passing upon a specific question of fact involved in the issue, and by allowing an account to be taken, as a separate matter for the information of the court, not only authorized, but required that neither party should be deprived of the benefit of a trial before a court or a jury as to matters not involved in the account. Wheeler v. Falconer, 7 Rob. 45. And where the court has power to order a compulsory reference, that power should not be exercised, if the cause can be tried by the Vol. III. — 32 250 REFERENCE, AND APPOINTING A REFEREE. Compulsory reference — When the court has no power to compel. court in a reasonable time, as the additional delay and expense necessarily attending a trial by referee would, in many cases, amount almost to a denial of justice. Godfrey v. WilliamsburgJi City Fire Ins. Co., 12 Abb. N. S. 250 ; Goodyear v. Brooks, 4 Rob. 682 ; S. C, 2 Abb. N. S. 296. It must be remembered, also, that where the action is, from its nature, not a referable one, the answer cannot make it so, although it sets up a counter-claim necessarily involving the examination of a long account. Townsend v. Hendricks, 40 How. 143. It is not possible to fix any inflexible rule by which to test what is and what is not such an account as will justify the order- ing of a compulsory reference. The question is to be determined only by the particular facts of each case. Batchelor v. Albany City Ins. Co., 1 Sweeny, 346 ; S. C, 37 How. 399 ; 6 Abb. N. S. 240. An account is, properly speaking, a statement of the pecuniary transactions between two or more parties, consisting of a series of charges made at various times, as the various trans- actions occurred. See Freeman v. Atlantic Mutual Ins. Co., 13 Abb. 124. A single bill of goods containing fifty different items, delivered at one time, is in fact but one item, and is not a long account upon which a reference can be ordered. Swift v. Wells, 2 How. 79 ; Harris v. Mead, 16 Abb. 257. So a bill of lading, composed of any number of different articles, is considered but one item, and not a long account. Miller v. Hooker, 2 How. 171. A bill of particulars is not an account in the ordinary or legal sense of the term, if it includes but five distinct charges on the debit side, and one item on the credit side (Dickinson v. Mit- chell, 19 Abb. 286) ; while on the other hand, a bill of particulars containing but three items, in the form of gross charges for work and labor performed, and services rendered in a long patent suit, has been held to be such an account as to justify a compulsory- reference. Thompson v. Seimer, 40 How. 246. For a review of all the authorities upon the question of what constitutes a long account within the meaning of the Code, see Batchelor v. Albany City Ins. Co., 1 Sweeny, 346 ; S. C, 37 How. 399 ; 6 Abb. N. S. 240. e. When the court has no power to compel. The Code, in defining the cases in which a compulsory reference may be or- dered, expressly excepts all those cases where the investigation will require the decision of difficult questions of law. Code, § 271. As has been stated, the court will not order a compulsory refer- REFERENCE, AND APPOINTING A REFEREE. 251 When the court has no power to compel. ence of all the issues in an action, merely because the trial of some one issue of fact will require the examination of a long account, if there are other issues in the action which may more imperatively require the vigilance, discretion and experience of the court than the mere taking of an account. Wheeler v. Fal- coner, 7 Rob. 45 ; Ives v. Vandewater, 1 How. 168 ; Adams v. Bayles, 2 Johns. 374 ; Low v. Hallett, 3 Caines, 82 ; Codwise v. Hacker, 2 id. 251 ; Shaw v. Aprs, 4 Cow. 52. In all such cases, however, the taking of the account may be made the subject of a compulsory reference where the court deems this procedure necessary for its information before judgment, leaving the other matters involved to be disposed of at the circuit. Code, § 271, subd. 2. See Interlocutory Decrees, Orders, etc. It is also a well-settled rule of practice, that a compulsory reference cannot be ordered in any action not arising on con- tract, and which does not involve the examination of a long account. The right to a trial by jury is guaranteed to the par- ties to the action in all other cases by the constitution of this State. Townsend v. Hendricks, 40 How. 143 ; Kain v. Delano, 11 Abb. N. S. 29 ; Godfrey v. Williamsburgh City Fire Ins. Co., 12 id. 250; Boss v. Mayor, etc., of New York, 32 How. 164; S. O, 2 Abb. N. S. 266. And, to warrant a compulsory reference even in actions on contract, where the examination of a long account is involved, it must appear that such accounts are directly involved, and are the immediate object of the suit or the ground of the defense. The court has no power to order a com- pulsory reference of the whole issue where the accounts will arise and come in question collaterally or incidentally. Kain v. Delano, 11 Abb. N. S. 29 ; Cameron v. Freeman, 18 How. 310 ; S. C, 10 Abb. 333 ; Todd v. Hooson, 3 Johns. Cas. 517 ; Keeler v. Poughkeepsie & Salt Point Plank Road Co., 10 How. 11 ; Sheldon v. Weeks, 7 N. Y. Leg. Obs. 57 ; Graham v. Golding, 7 How. 260. And not only must the examination of an account be directly involved in order to justify a compulsory reference of the whole issues arising in an action on contract, but the matter to be examined must be a oona fide account, and literally and truly a long account. The court has no power to order a com- pulsory reference in any other case. McCullough v. Brodie, 13 How. 346 ; S. O, 6 Duer, 659 ; Sharp' v. Mayor, etc., of New York, 18 How. 213 ; Parker v. Snell, 10 Wend. 578 ; Van Pens- selaer v. Jewett, 6 Hill, 373. See Freeman v. Atlantic Mutual 252 REFERENCE, AND APPOINTING A REFEREE. Compul sory reference — Torts — Divorce. Ins. Co., 13 Abb. 124 ; Swift v. Wells, 2 How. 79 ; Harris v. Mead, 16 Abb. 257 ; Miller v. Hooker, 2 How. 171; Dickinson v. Mit- chell, 19 Abb. 286; Batchelory. Albany City Ins. Co., 1 Sweeny, 346 ; S. C, 37 How. 399 ; 6 Abb. N. S. 240 ; Stewart v. Elwele, 3 Code R. 139 ; WMtaker v. Desfosse, 7 Bosw. 678. It should also be remembered that in many cases a reference will not be ordered without the consent of the parties, although the court may have, a clear right to make the order. See God- frey v. Williamsburgh City Fire Ins. Co., 12 Abb. N. S. 250; Wheeler v. Falconer, 7 Rob. 45 ; Goodyear v. Brooks, 4 id. 682 ; S. C, 2 Abb. N. S. 296. /. Torts. It is a well-settled rule, that an action founded on tort, or sounding in tort, is not referable against the will of either party. Townsend v. Hendricks, 40 How. 143 ; Godfrey v. Wil- liamsburgh City Fire Ins. Co., id. ; Freeman v. Atlantic Mut. Ins. Co., 13 Abb. 124 ; Dewey v. Field, 13 How. 437 ; Ross v. Mayor, etc., of New York, 32 id. 164 ; S. C, 2 Abb. N. S. 266 ; Cameron v. Freeman, 10 Abb. 333 ; S. C, 18 How. 310 ; Dederick's Ad- ministrators v. Richley, 19 Wend. 108 ; Silmser v. Medfleld, id. 21. And where an action from its nature is not referable, as where it is based on fraud, it cannot be made referable by setting up in the answer a counter-claim, consisting of a long account. Townsend v. Hendricks, 40 How. 143. An action founded on tort may, however, be referred upon the written consent of the parties in the same manner as an action founded on contract. Code, § 270. g. Divorce. An action for a divorce on the ground of adultery may be referred upon the written consent of the parties. People v. McGinnis, 1 Park. Cr. 387 ; Waterman v. Waterman, 37 How. 36 ; Code, § 270. A compulsory reference, however, can- not be ordered where an issue upon the question of adultery has been raised by the pleadings. Diddell v. Diddell, 3 Abb. 167. The Code provides that an issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270, 271. Code, § 253. This section does not, how- ever, authorize a compulsory reference to try and determine the issues where adultery is set up in the complaint and denied in the answer. REFERENCE, AND APPOINTING A REFEREE. 253 Interlocutory references. Where an action is brought to obtain a divorce or separation, or to declare a marriage contract void, if the defendant fail to answer the complaint, or if the facts charged in the complaint are not denied in the answer, the court to which application is made for judgment shall order a reference to take proof of all the material facts charged in the complaint. Rule 87, Sup. Ct. This form of reference is proper only where there is a default in answering. Where the defendant has appeared and answered, and has set up a denial of all the material facts in the complaint, the order of reference should be to hear and determine and not to take the proofs and report them to the court. Lincoln v. Lin- coln, 6 Rob. 525. 7i. Interlocutory references. It frequently occurs upon the trial of a cause that questions of fact arise, other than such as are raised by pleadings which must be settled before complete justice can be done between the parties. To provide for such and similar cases the Code authorizes a compulsory reference whenever the taking of an account shall be necessary for the information of the court before judgment, or for carrying a judgment or order into effect ; or whenever a question of fact other than upon the pleadings shall arise, upon motion or other- wise, in any stage of the action. Code, § 271. References of this nature are frequently ordered for the pur- pose of assessing damages on an application to the court for judgment on failure to answer. Code, § 246. So upon judg- ment for the defendant, upon an issue of law, if the taking of an account, or the proof of any fact is necessary to enable the court to complete the judgment, a reference may be ordered in the same manner as upon judgment for failure to answer. Code, § 269. So the damages sustained by the defendant, or party re- strained by an injunction, improperly granted, may be ascertained by a reference or otherwise, as the court shall direct. Code, § 222. , References, too, are frequently ordered to settle the issues to be tried by a jury, in cases where the trial of issues of fact are not provided for by section 253 of the Code, and where either party has demanded a jury trial. See Rule 40, Sup. Ct. See ante, 19 to 24. So upon the application of an infant, for the sale of his real estate, a reference may be ordered to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, 254 REFERENCE, AND APPOINTING A REFEREE. Interlocutory references — Proceedings to obtain reference by consent. and the particular reasons therefor, and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the terms and conditions upon which it should be sold ; and whether the infant is in absolute need of any and what part of the proceeds of the sale for his support and main- tenance, over and above the income thereof, and his other prop- erty, together with what he might earn by his own exertions ; and. if there is any person, entitled to dower in the premises, who is willing to join in the sale ; also, to ascertain the value of her life estate in the premises, on the principle of life annuities. Rule 68, Sup. Ct. References may be ordered also to make inquiries as to title, liens, etc., in actions for specific performance, partition, etc. In actions for partition, the object of the reference is, not only to inquire into the situation of the property to ascertain if it can be actually partitioned, but also to ascertain and report as to the claims of creditors not parties to the action, in the form of specific or general liens upon the premises. These and other forms of interlocutory reference will be fully discussed elsewhere. See Interlocutory Decrees, Orders, etc. Section 3. Proceedings to obtain reference by consent. ■a. Form of consent. Under the provisions of section 270 of the Code, all or any of the issues in an action may be referred, upon the written consent of the parties. Under the old practice the reference of the issues, in an action not referable, or to a greater or less number of referees than the statute prescribed, was a discontinuance of the action, and the reference became an arbitration merely. It will be seen that a consent in writing is necessary to refer issues in all cases in which the court may not compel a reference, and hence a written consent is just as necessary to a valid refer- ence under the Code, as it is to a valid reference under the statutes relating to the reference of claims against executors and admin- istrators. BucJclin v. Chapin, 35 How. 155 ; S. C, 53 Barb. 488. Strictly speaking, the consent of the parties to refer should be reduced to writing, and signed by them or their attorneys ; but in practice the rule is not enforced in all its strictness, and, although a written consent to refer is in all cases necessary, it is not necessary that this consent be subscribed by the parties or their attorneys. It will be a sufficient compliance with the stat- ute if the parties, or their attorneys, give an oral assent to a REFERENCE, AND APPOINTING A REFEREE. 255 Proceedings to obtain reference by consent — Form of consent to refer. reference, in open court, and this consent is entered by the clerk in the minutes of the court ; or if a similar consent is made before referees, and entered by them in their minutes ; or if an order of reference is entered with the assent of the parties in open court, as in either case such entry will be deemed their written consent to the reference. Waterman v. Waterman, 37 How. 36 ; People v. McGinnis, 1 Park. Cr. 387 ; Bucklin v. Ohapin, 35 How. 155 ; S. C, 53 Barb. 488 ; Leay croft v. Fowler, 7 How. 259 ; Keator v. The Ulster & Delaware Plank Road Co., 7 id. 41. See ante, 245, 246. The consent need not be given by the parties in person, but may be given by their attorneys. GeneraUy speaking, an attor- ney of record has authority to refer a cause. If he exceeds his authority the other party will not be permitted to be prejudiced, but the client will be held to the consent so given, and must seek his remedy against his attorney. Smith v. Troup, 7 Man., Gr. & Scott, 757 ; S. C, 6D.&L. 679 ; Faviell v. Eastern Counties R. R. Co., 2 Exch. 344 ; S. O, 6 D. &. L. 54. Whatever irregularities there may be in the mode of giving consent to the reference of a cause, all objections thereto will be waived if the parties appear before the referee and proceed with the reference. Keator v. Ulster Plank Road Co., 7 How. 41 ; Garde v. Sheldon, 3 Barb. 232 ; Quinn v. Lloyd, 7 Rob. 157 ; Bucklin v. Chapin, 35 How. 155 ; S. C, 53 Barb. 488. Ordinarily, the parties or their attorneys should select a proper person to act as referee, and stipulate in the consent for a refer- ence that the cause be referred to him ; and an order will be made that the cause be so referred, as a matter of course. Code, § 273. But where, some of the parties are infants or absentees, or where the object of the action is to procure a divorce, the name of the proposed referee should not be inserted in the con- sent. See Code, § 273 ; Rule 87 of Sup. Ct., N. Y. Gen. Term ; 13 How. 346 ; Litchfield v. Burwell, 5 id. 341 ; S. 0, 9 N. Y. Leg. Obs. 182 ; 1 Code R. N. S. 42. Form of consent to refer. (Title of cause.) It is hereby agreed and stipulated by the parties to this action that the right to a trial by jury be waived, and that it be referred to , counselor at law, to hear and determine the issues in this cause ; and that an order may be entered accordingly. (Date.) (Signatures.) 256 EEFERENCE, AND APPOINTING A REFEREE. Application for order. o. Application for order. The consent for a reference having been drawn up and signed by the parties or their attorneys, it should be presented to the court at special term, accompanied by an order of reference properly drawn, and lacking only the judge's signature. The order will be granted as of course, if none of the parties are infants or absentees, and the action is not for divorce. Code, § 273. If some of the parties are infants or absentees, or if the parties cannot agree upon a proper person to act as referee, a similar application must be made, whereupon the court will appoint one or more referees, not exceeding three, who shall be free from exception. Code, § 273. The application must be made on the usual notice of eight days, unless the parties waive such notice by agreement or vol- untary appearance before the court. Both parties have a right to be heard upon the application. Except in actions for divorce no person can be appointed referee to whom all the parties in the action shall object. lb. In all cases the application must be made to the court at special term. A judge out of court or at chambers has no power to appoint a referee. Scudder v. Snow, 29 How. 95. c. Form and entry of order. It is customary upon an applica- tion for an order of reference, to present to the court an order properly drawn together with the written consent of the parties. If for any reason this practice is not followed, the counsel should see that the decision of the court allowing the reference is prop- erly incorporated into an order and duly entered with the clerk. Scudder v. Snow, 29 How. 95. The judge usually appends his initials to the order with a direction to the clerk to enter, where- upon the clerk enters the order and furnishes the counsel with a certified copy. In all cases it is absolutely indispensable to the regularity of the subsequent proceedings before the referee, that the order directing the reference and appointing the referee should be regularly made and entered. Bonner v. McPhail, 31 Barb. 106 ; Scudder v. Snow, 29 How. 95 ; Litchfield v. Burwell, 5 id. 341 ; S. C, 1 Code R. N. S. 42 ; 9 N. Y. Leg. Obs. 182. Courts of justice speak only through their records, orders, and entries upon their journals or minutes ; and before a person can be clothed with the powers and authority of a referee in a pend- ing action, and proceed to execute its duties, there must be a decision of the court signified by an entry or order upon its REFERENCE, AND APPOINTING A REFEREE. 257 Application for order. minutes. No referee should proceed a step in the exercise of his duties without a certified copy of this rule or order in his hands ; this is his commission, and without it he should not act. lb. Where parties have appeared before a referee, upon a written consent, and have taken part in the proceedings upon the refer- ence, any irregularity in obtaining or entering the order will be waived, and an order may be made and entered nunc pro tunc. Bucklin v. CTiapin, 35 How. 155 ; S. C, 53 Barb. 488 ; WMlen v. Board of Supervisors of Albany Co., 6 How. 278 ; Bonner v. McPhail, 31 Barb. 106. But, while an order of reference, made after the report of a referee is filed, with the consent of both parties that it be entered nunc pro tunc, will render the pro- ceedings regular and conclusive as to the parties, it may be doubted if a judgment entered upon such report would be con- clusive as against the rights of third parties. As a referee has no legal power to administer a judicial oath before the order appointing him has been duly made and entered, no witness can be punished for perjury committed on an exami- nation before him while thus disqualified, and the subsequent entry of an order nunc pro tunc, by consent of the parties, will not relate back so as to give to an extra judicial oath the effect of an oath legally administered. Bonner v. McPhail, 31 Barb. 106. The necessity of obtaining and entering an order of reference will appear also from the fact that although the parties have stipulated to waive a jury trial and refer the cause to a party designated, yet if no order of reference is previously obtained and entered, and either party fails to appear before the referee and take part in the proceedings on the reference, the report of the referee will be a nullity and will not support a judgment entered on it. Scudder v. Snow, 29 How. 95. Where a reference is ordered upon a written stipulation to refer a cause to a person designated, the order must conform to the stipulation, and direct that the cause be referred to the person so designated, or it will be void as against a party failing to ap- pear at the reference. Saner v. Bliss, 7 How. 246 ; Billings v. VanderbreJc, 15 id. 295. The irregularity will, however, be waived by the parties if they appear and take part in the pro- ceedings before the referee. Quinn v. Lloyd, 7 Rob. 157. The order must also be made and entered in due form. A Vol. III.— 33 258 REFERENCE, AND APPOINTING A EEPEREE. Form of order upon consent to refer — Construction of the order. memorandum made by a judge on his calendar, at the circuit, that a cause was "referred to. A. B.," is not sufficient to consti- tute an order. Bonner v. McPhail, 31 Barb. 196. So a decis- ion of the court, at special term, authorizing a reference will not be binding upon the parties, if not properly incorporated in the form of an order and duly entered, although the order may be contained in the judgment-roll and signed by a judge of the court. Scudder v. Snow, 29 How. 95. Form of order upon consent to refer. {Title of cause.) {At special term, etc.) On reading and filing the written consent of the parties to this action, and on motion of A. B., of counsel for (plaintiff or) defendant : Ordered : That it be referred to , Esq., of , counselor at law, to hear and determine the whole issues of this cause. d. Service of order. Where an order of reference is entered on the consent of the parties, and both parties had notice of the motion for the reference, no service of the order on either party is necessary. Moffat v. Judd, 1 How. 193. A certified copy of the order should, however, be served upon the person appointed referee, as, unless this is done, he should refuse to take any step in the cause. Bonner v. McPhail, 31 Barb. 106. e. Effect of the order. When a cause is referred to a referee to hear and decide the whole issue, he is invested by the order with all needful authority over the cause, over the issues, over the pleadings, over the process, and over the parties, to such extent as to preserve order, enforce obedience, and determine every thing which properly belongs to the trial of the action. He is, in fact, invested by the order with the same power as a judge holding a special term, and stands in the place of the court clothed with similar powers. See Code, § 272 ; Graves v. Blanchard, 4 How. 300 ; S. C, 3 Code R. 25. /. Construction of the order. Where an order is made refer- ring "this cause," this is in effect a reference of the whole issue, and of every question of law or fact arising therein. Benouil v. Harris, 1 Code R. 125. A refer-ence of the whole issue includes the taking of an account where that is a part of the relief to be had on the finding of an issue for the plaintiff. Crosoie v. Leary, 6 Bosw. 312. REFERENCE, AND APPOINTING A REFEREE. 259 Appeal from order — Proceedings to obtain compulsory reference. g. Appeal from order. It is a general rule that an order which directs a reference in a case in which a reference is not authorized by law, is appealable. Kain v. Delano, 11 Abb. N. S. 29 ; Whitaker v. Desfosse, 7 Bosw. 678 ; Thompson v. Seimer, 40 How. 246 ; Cram v. Bradford, 4 Abb. 193. But as all actions are referable upon consent, the rule does not apply to orders upon stipulation of the parties. lb. If, however, upon a stipula- tion to refer a cause to A., the cause was, by mistake or inad- vertence, referred to B., the order may be corrected. The party aggrieved has his remedy by motion to remove the referee, or he may disregard the order entirely, and proceed to trial and inquest before the court as if no consent to any reference had been given. See Haner v. Bliss, 7 How. 246 ; Quinn v. Lloyd, 7 Rob. 157. Section 4. Proceedings to obtain compulsory reference. a. When to make application. An application for an order, for a compulsory reference should not be made until the cause is in a condition to be referred ; and no cause is referable until it is in readiness for trial. Hawkins v. Avery, 32 Barb. 551 ; Wheeler v. Falconer, 7 Rob. 45 ; Jansen v'. Tappen, 3 Cow. 339 ; Butcher v. Wilgus, 2 How. 180 ; Goodyear v. Brooks, 4 Rob. 682 ; S. C, 2 Abb. N. S. 296. Thus an action for the foreclosure of a mortgage is not in a condition to have all the issues therein referred, while any de- fendants, against whom the plaintiff seeks a judgment over for a deficiency, have not been served with a summons, or have been served with a notice that no personal claim is made against them, and have not appeared. Goodyear v. Brooks, 4 Rob: 682 ; S. C, 2 Abb. N. S. 296. So an application for a reference will be premature while there is an issue of law pending and undetermined. Jansen v. Tap- pen, 3 Cow. 339. But either party may move for a general reference immediately upon the joinder of issue, although the time allowed for the adverse party to serve an amended pleading, as of course, has not expired. Enos v. Thomas, 4 How. 290 ; S. C, 2 Code R. 148. A subsequent amendment of the pleadings cannot defeat a motion for a reference, unless by such amendment there ceases to be an issue of fact or law between the parties. lb. See Code* §172. The motion should be made before notice of trial, as it will 260 REFERENCE, AND APPOINTING A REFEREE. Where application should be made — Notice of motion to refer. be granted, after such notice has been given, only upon the pay- ment of the costs which the adverse party has incurred in pre- paring for trial. Fish v. Wright, 5 Cow. 269. The application for a reference should not be unreasonably, delayed, as such delay, if unexplained, will cause the applica- tion to be viewed with suspicion. Wheeler v. Falconer, 7 Rob. 45. o. Where application should be made. A motion for a refer- ence in an action is a non-enumerated motion, as denned by rule 47 of the supreme court, and must be made at a special term. Conway v. Hitchins, 9 Barb. 378 ; Code, § 271 ; Scudder v. Snow, 29 How. 95. The general term may also order a refer- ence in certain cases to determine a question for its own infor- mation, as where an appeal has been taken from that part of a judgment for a divorce which fixes the alimony, an order of reference may be granted to determine what would be a suitable amount. Forrest v. Forrest, 25 N. Y. (11 Smith) 501. c. Notice of motion. A motion for a reference in an action is a non-enumerated motion and must be made upon a notice of eight days to the adverse party, according to section 402 of the Code. Conway v. Hitchins, 9 Barb. 378. The court may, how- ever, dispense with all notice, and order a reference on its own motion, independently of any application by the parties. Church v. Freeman, 16 How. 294 ; Code, § 271. This power exists, however, only where the action is by its nature referable. It was formerly the rule that the notice of motion to refer a cause should contain the names of three referees. Gott v. Owen, 7 Hill, 155 ; Lusher v. Walton, 1 Cai. 149 ; Bedle v. Willett, id. 7. The rule is, however, obsolete. See rule of general term, 13 How. 346. Notice of motion to refer. {Title of cause). Please take notice, That on the affidavit, a copy of which is herewith served on -you (and on the pleadings in this action), I shall move the court at a special term to be held at , on the day of ,18 , at o'clock in the noon, or as soon thereafter as counsel can be heard; that his action be referred to one or more referees, and for such other and further relief as may be just. {Bate.) {Signature.) {Address.) EEFEEENCE, AND APPOINTING A REFEREE. 261 Proceedings to obtain compulsory reference — Affidavits. d. Affidavits. The motion for an order of reference should be made upon an affidavit, or upon an affidavit and the plead- ings. The affidavit should show the nature of the action, in order that the court may see that it is one in which an order of reference may be properly granted. It should also show the condition of the action, and allege in clear and positive terms that all the issues, whether of law or fact, have been joined. Goodyear v. Brooks, 4 Rob. 682 ; S. C, 2 Abb. N. S. 296 ; Dutcher v. Wilgus, 2 How. 180 ; Jansen v. Tappen, 3 Cow. 34. It should also show that the trial of such issues will necessarily require the examination of a long account, and, also, how and in what way their examination will become necessary upon the trial. Kain v. Delano, 11 Abb. N. S. 29 ; Keeler v. Poughkeepsie & Salt Point Plank Road Co., 10 How. 11. If the motion is made upon the pleadings and affidavits, and the pleadings are duly verified and show, prima facie, that the trial will require the examination of a long account, the court may grant the order upon the proof so presented. Holmes v. Bennett, 28 How. 289. It is not necessary that the affidavit should show that the in- vestigation will not require the decision of difficult questions of law, as this is a matter of defense to the motion which the mov- ing party is under no obligation to anticipate. Barber v. Crom- well, 10 How. 351. Neither is it necessary that the affidavit should show the place of trial. Feeter v. Harter, 7 Cow. 478 ; Cleveland v. Strong, 2 id. 448. The affidavit upon which to move for an order of reference should be made by the party himself, or a sufficient excuse should be given for his not making it. Mesick v. Smith, 2 How. 7 ; Boss v. Beecher, id. 157 ; Wood v. Crowner, 4 Hill, 548 ; Little v. Bigelow, 2 How. 164. But this rule applies only where the motion is made upon an affidavit alone. Where the applica- tion for the order is made both upon an affidavit and the plead- ings in the cause, the attorney may pro*perly make the affidavit, showing the joining of the issues of fact in the action, and the place of trial, without making excuse for the fact that it is not made by the party. The fact that the trial of the issues of fact would require the examination of a long account may be made to sufficiently appear by the verified pleadings. Holmes v. Ben- nett, 28 How. 289. 262 REFERENCE, AND APPOINTING A REFEREE. Form of affidavit — Form of affidavit of attorney, etc. — Practice on motion. Form of affidavit. {Title of cause.) {Venue.) A. B., the {plaintiff) in the above-entitled action, being duly sworn, says : I. That the said action is brought to recover for work done by the plaintiff, as the factor and agent of the said defendant, in and about the selling and disposing of goods and chattels, and in and about other business ci the said defendant, and for him and at his request. II. That the issue was joined in the said action on the day of last, by the service of a reply to the answer of the defendant ; that the said answer sets up payment as to part of the plaintiff's demand, and a counter-claim arising out of numer- ous items of services alleged to have been rendered by him to the plaintiff, all of which allegations are denied by the reply. III. That the trial of the aforesaid issues will necessarily in- volve the examination of a long account on the side of both plain- tiff and defendant, consisting of at least items of charges and credits, in respect to the aforesaid services and payments, made at various dates and extending over a period of years. {Jurat.) {Signature.) Form of affidavit of attorney, where motion is based on veri- fied pleadings. {Title of cause.) {Venue.) E. B., being duly sworn, says : I. That he is the attorney for the plaintiff in the above-entitled action. II. That issue was joined in the said action on the day of last, by the service of the defendant' s answer, and that no demurrer to said answer has been served. III. That the trial of the aforesaid issues will necessarily in- volve the examination of a long account, as will more fully appear by the pleadings in this action, copies of which are hereto annexed. {Jurat) {Signature.) e. Practice on motion. Upon the argument of the motion, the party upon whom the motion papers have been served may oppose the motion by counter affidavits, setting forth the reasons why the cause should not be referred. If the motion to refer is opposed upon the ground that difficult questions of law will arise, the opposing affidavit must set forth what such questions are, to enable the court to judge whether they are questions of real difficulty. Dewey v. Field, 13 How. 437; Salisbury v. REFERENCE, AND APPOINTING A REFEREE. 263 Practice on motion — Form of affidavit denying account. Scott, 6 Johns. 329 ; Lusher v. Walton, 1 Cai. 149. See Barber v. Cromwell, 10 How. 351 ; Anonymous, 5 Cow. 423 ; Shaw v. Ayrs, 4 id. 52. If the motion is opposed on the ground that the examination of a long account will not be involved in a trial of the issues, this fact should be made to clearly appear by affidavit, if it does not sufficiently appear from the pleadings. See Kain v. Del- ano, 11 Abb. N. S. 29. The fact that the action sought to be referred is one not arising on contract may be shown by the pleadings, and will defeat the motion, notwithstanding that a trial of the issues may involve the examination of a long account. Townsend v. Hendricks, 40 How. 143. When this fact is made to appear, it will be unneces- sary to call attention to other objections to the granting of the reference. The motion may also be successfully opposed by showing, by the pleadings and affidavits, that the action can be tried by the court and a jury, in a reasonable time, and that the expenses and delays of a trial before a referee would be oppressive and a hard- ship in the particular case. See Godfrey v. The Williamsburgh City Fire Ins. Co., 12 Abb. N. S. 250. . Each party should be prepared, upon the argument, with the name or names of one or more referees, in order that if the motion is granted the selection of a referee may be made by agreement between the parties, if possible, or, if not, by the court. If the parties agree, before the argument of the motion, upon some person to act as- referee, in case a reference should be ordered, this agreement should be put in the form of a written stipula- tion, to be presented to the court ; and, except in actions for a divorce, no person other than the one so nominated can be ap- pointed referee in the cause. Code, § 273. If the parties do not so agree, the court will usually appoint some person nominated by one of the parties. Form of affidavit denying account. {Title of cause.) ( Venue.) A. B., the plaintiff in the above-entitled action, being duly sworn, says : I. That the issue joined herein will not require the examina- tion of a long account within the meaning of the statute. 264 REFERENCE, AND APPOINTING A REFEREE. Form of affidavit where there are difficult questions ot law. II. That this action is brought to recover for a bill of goods sold by plaintiff to defendant ; and that all of said goods were sold, at one time and as one transaction ; and the alleged credit is a payment made by defendant at said time, and then deducted from the amount to be due from defendant to the plaintiff ; and that there are no other items of charge or credit involved in the issues herein. {Jurats {Signature.) Form of affidavit where there are difficult questions of law. {Title of cause?) {Venue.) A. B., the plaintiff in the above-entitled action, being duly sworn, says : I. That he has fully and fairly stated this cause to his coun- sel, E. B. , who resides at ; and that the investigation and trial of the issues of fact in this cause will, as deponent is advised by said counsel, after such statement, and believes, require the decision of difficult questions of law. II. That {here state the nature of the issues, unless they are correctly stated in the moving affidavit), and that the following' will be insisted on on behalf of said plaintiff {here state depo- nent's points of law), and deponent is informed and believes that the defendant's counsel will urge {here state the anticipated points), which points, as deponent is advised by his said counsel, are material to the cause, and are difficult, especially in their application to this case. {Jurat.) {Signature.) Affidavit where fraud is set up. {Title, venue and commencement, as above.) I. That this action is brought upon an insurance policy alleged to have been made by defendants ; and that the only items of account are items of damage, which plaintiff claims he has sustained by a peril insured against. II. That the defense set up by the defendants is fraud on the part of the plaintiff, as more fully appears by reference to the answer, a copy of which is hereto annexed. {Jurat.) {Signature.) Form of stipulation agreeing on nomination. {Title of cause.) It is hereby stipulated and agreed between the parties hereto, that, in case the within motion be granted, the reference shall be to , Esq., of , counselor at law. {Bate.) {Signatures.) REFERENCE, AND APPOINTING A REFEREE. 265 Reference, on motion of the court — Appeal from order. f. Reference, on motion of the court. Compulsory references are usually ordered upon the application of some one of the parties, although the court has power, in all cases where such reference may be ordered, to refer the cause on its own motion. Code, § 271. The reference in such case may be to hear and decide the whole issue, or to report upon any specific question of fact involved therein, or to take an account. lb. The whole issues are, however, seldom referred by the court on its own motion. See Barron v. Sanford, 14 How. 443 ; S. C, 6 Abb. 320, note ; Van Zant v. Cobb, 10 How. 348. g. Appeal from order. An order directing a compulsory refer- ence may or may not be appealable, the decision of this question depending upon the nature of the action in which the order was made, and also upon the proof upon, which it was based. If a reference is ordered in a case clearly unauthorized by law, as for instance, in an action for libel, false imprisonment,, or other wrong, or where the claim consists of only one or two items, the order would affect a substantial right, and would, therefore, be appealable. Kain v. Delano, 11 Abb. N. S. 29 ; Thompson v. Seimer, 40 How. 246 ; Dickinson v. Mitchell, 19 Abb. 286 ; Harris v. Mead, 16 id. 257 ; WhitaTcer v. Desfosse, 7 Bosw. 678 ; Cram v. Bradford, 4 Abb. 193 ; Gray v. Fox, 1 Code R. N. S. 334. But where the action is referable in its nature, and either by reason of a conflict of proofs, or otherwise, it is doubtful whether the examination of a long account is involved or not, the judge to whom the application is made may exercise his dis- cretion in the premises, and his order is final, and cannot be reviewed on appeal. Kain v. Delano, 11 Abb. N. S. 29 ; Thomp- son v. Seimer, 40 How. 246 ; Hatch v. Wolfe, 30 id. 65 ; S. C, 1 Abb. N. S. 77 ; WhitaTcer v. Desfosse, 7 Bosw. 678 ; TJbsdell v. Root, 1 Hilt. 173 ; S. C, 3 Abb. 142 ; Kennedy v. Shilton, 1 Hilt. 546; S. C, 9 Abb. 157, note; Smith v. Dodd, 3 E. D. Smith, 348 ; Gray v. Fox, 1 Code R. N. S. 334. But in order to render the decision of the court in granting the order conclu- sive and final, so as to prevent an appeal, there must be some evidence showing that the trial of the issues in the action will require the examination of a long account ; for, while an appel- late court will not sit in judgment upon a question of fact passed upon by the court below, upon competent evidence fairly calling for the exercise of the judgment of that court, it will review the decision of such court where it appears that no facts were shown Vol. Ill — 34 266 REFERENCE, AND APPOINTING A REFEEEE. Order of reference — Form and contents of order. which presented a question for judicial determination. Kain v. Delano, 11 Abb. N. S. 29 ; Whitaker v. Desfosse, 7 Bosw. 678. Section 5. Order of reference. a. General. As has been previously stated, an order of refer- ence should, in all cases, be obtained and entered before proceed- ing with the reference, even when the reference is upon a written consent. Bonner v. McPhail, 31 Barb. 106 ; Seudder v. Snow, 29 How. 95 ; Litchfield v. Burwell, 5 id. 341 ; S. C, 1 Code R. N. S. 42 ; 9 N. Y. Leg. Obs. 182. In the absence of such order, either party may refuse to appear before the referee, and no advantage can be taken of the default, even though due notice of the trial was served upon the party so absenting himself. Seudder v. Snow, 29 How. 95. Should the parties appear, and the testimony of witnesses be taken, no witness could be punished for perjury committed before a referee who was not clothed with authority to administer an oath by an order of the court appoint- ing him. Bonner v. McPhail, 31 Barb. 106. The right to a jury trial may be waived by the appearance of the parties before a referee who was not duly appointed by the court, and an order may be made and entered nunc pro tunc after the referee has made his report. Bucklin V. Chapin, 35 How. 155 ; S. C, 53 Barb. 488 ; Whalen v. Board of Supervisors of Albany Co., o How. 278. But the entry of such order will not affect a party who has not appeared, nor will it give to an extra-judicial oath the effect of an oath legally administered. Seudder v. Snow, 29 How. 95 ; Bonner v. McPhail, 31 Barb. 106. b. Form, and contents of order. A reference under the Code, when intended as a substitute for a trial of issues by a court or jury, may be ordered for two purposes : First. It may be for the decision of all the issues, and the determination of the entire controversy ; and, second,, it may be merely to ascertain the facts, and report them to the court for its decision and final judgment thereon. The Code authorizes a compulsory reference where the trial of an issue of fact will require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whple issues, or to report upon any spe- cific question of fact involved therein. Code, § 271. In either case, the referee stands in the place of the court, and the general rules applicable to the one case are equally applicable to the other. A distinction, however, exists in respect to the form of the order of appointment in the two cases, which must not be REFERENCE, AND APPOINTING A REFEREE. 267 Form of order of reference on motion — Entry and aervice of order. overlooked. If the reference is intended merely for the purpose of informing the court upon any specific question of fact, the order directing the reference should clearly indicate this inten- tion, as, in the absence of words showing this intent, the reference will be deemed to embrace the whole issue. See Menouil v. Harris, 2 Sandf. 641 ; 1 Code R. 125. In cross actions, and upon cross applications for a reference, the court will sometimes order a joint reference ; and where the respective parties reside in different places will direct in the order that the referee hold meetings in different places to accom- modate the parties. Hart v. Trotter, 4 Wend. 198. If the parties have stipulated that the cause be referred to a particular person, the order must conform to the stipulation, except in actions for a divorce. Code, § 273. Form of order of reference on motion. {Title of cause.) {At a special term, etc.) On reading and filing the affidavit of A. B. (and the pleadings in this action), and on motion of Y. Z., counsel for the plaintiff, and after hearing M. N., counsel for the defendant (or on proof of due service of notice of motion and no one appearing), in opposition : Ordered : That it be referred to , Esq., counselor at law, to hear and determine the whole issues in this cause. Form of order of reference oy the court of its own motion. {Title qf cause.) {At a circuit, etc.) This cause coming on to be tried, and it appearing to the sat- isfaction of the court that it will require the examination of a long account : Ordered : That it be referred to , Esq., of , coun- selor at law, to hear and determine the whole issues in this cause. c. Entry and service of order. Upon a motion for a reference, the mere oral decision of the court that the cause be referred is of no avail unless that decision is incorporated in an order. The only judicial mode of determining a motion is by an order, and this must be made a record. Smith v. Spalding, 3 Rob. 615 ; S. C, 30 How. 339. It is the business of the counsel to see that the decision of the court, at special term, is properly incorporated in an order, and duly entered with the clerk to make it effective. Scudder v. Snow, 29 How. 95. The order being duly drawn up 268 REFERENCE, AND APPOINTING A REFEREE. Effect of order — If all object, referee not appointed. by the moving party, and signed by the court with a direction to the clerk to enter, the counsel should next present the order to the clerk, who will thereupon enter it in the minutes, and give to the moving party a certified copy of it. A certified copy of the order should be thereupon served upon the referee, as it is his commission, without which he should re- fuse to proceed with the reference. Bonner v. McPhail, 31 Barb. 106. It is not necessary that a copy of the order should be served upon the adverse party. The application for the order being made on notice, the opposing party is charged with notice of the decision of the motion. Moffat v. Judd, 1 How. 193. d. Effect of order. The sole effect of an order of reference is to determine the mode of trial, and it no more involves the merits than an order changing the place of trial. Bryan v. Brennon, 7 How. 359. It, however, deprives a party of a sub- stantial right secured to him by the constitution, and if the order has been improvidently granted, he has still his remedy by ap- peal. Kain v. Delano, 11 Abb. N. S. 29. But if the court granting the order has made a proper exercise of its discretion, the referee, by such order, becomes invested with all the author- ity over the cause which was formerly vested in the court, and his report upon the whole issues stands as the decision of the court, and judgment may be entered thereon in the same man- ner as if the action had been tried by the court. Where the reference is to report the facts, his report has all the effect of a special verdict. Code, § 272. There are several reported decisions to the effect that, notwith- standing the order of reference, for every purpose except the trial, the action and parties remain in court. Billings v. Baker, 6 Abb. 213 ; Holmes v. Slocum, 6 How. 217 ; S. C, 1 Code R. N. S. 380 ; Mathews v. Jones, 1 E. D. Smith, 429. How far these de- cisions are binding as authorities, under the subsequent amend- ments of sections 272 of the Code and the present rules of court, will be considered in discussing the powers of referees. See art. 2, post ; see, also, Stephens v. Strong, 8 How. 339 ; Sage v. Mosher, 17 id. 367 ; Williams v. Sage, 1 Code R. N. S. 358 ; Rule 39, Sup. Ct. e. If all object, referee not appointed. Except in actions for a divorce, the court has no power to direct a reference to any person to whom all parties shall object. Code, § 273. REFERENCE, AND APPOINTING A REFEREE. 269 Waiver of irregularity in proceeding — Compulsory reference. Section 6. Waiver of irregularity in proceeding. a. Reference by consent. It may be stated, as a general rule, that proceeding upon a reference is a waiver of all objec- tions because of irregularities, and that the appearance before the referee, the trial of the claim presented, and a report thereon, - are all that are necessary to justify the entry of a judgment. All the preliminary steps may be supplied nunc pro tunc. Bucklin v. Chapin, 35 How. 155 ; S. C, 53 Barb. 488 ; Whalen v. Board of Supervisors of Albany County, 6 How. 278 ; Bonner v. McPhail, 31 Barb. 106 ; Andrews v. Elliott, 5 Ell. & Bla. 502 ; S. C, 32 Eng. Law & Eq. 311 ; Quinn v. Lloyd, 7 Rob. 157 ; Garcie v. Sheldon, 3 Barb. 232. But this rule applies only to objections on the ground of irreg- ularities. Proceeding upon a reference is no waiver of the objec- tion that the court had no jurisdiction to make the order under which the cause was referred. This question may be raised at any time. Garcie v. Sheldon, 3 Barb. 232. See Haner v. Bliss, 7 How. 246 ; Scudder v. Snow, 29 id. 95. b. Compulsory reference. The rule as to the waiver of irreg- ularities, on a reference by consent, applies equally to objections to irregularities on a compulsory reference. If a party appears and proceeds upon a reference, he will be deemed to have waived all objections to the order of reference on the ground of irregu- larity, but not of the objection that the court had no jurisdiction to make the order. Garcie v. Sheldon, 3 Barb. 232 ; Haner v. Bliss, 7 How. 246. As the law only authorizes a compulsory reference in a single class of cases, viz., those actions in which a trial of an issue of facts will require the examination of a long account, and, as the constitution secures to a party a trial by jury in all other cases, it follows that the court has no jurisdic- tion to make an order directing that an action be referred for trial, without the consent of the parties, except where such action falls within the single class of cases mentioned ; and when an order is made, referring an action which is not, from its nature, referable, without the consent of the parties, the granting of the order is not a mere irregularity, and an objection that the order was improperly granted will not be waived by appearing and proceeding with the trial. Kain v. Delano, 11 Abb. N. S. 29. c. Disregarding order. The Code provides that, in all cases of reference, the parties as to whom the issues are joined in the action (except when the defendant is an infant or an absentee) 270 REFERENCE, AND APPOINTING A REFEREE. Disregarding order — Who appointed a referee. may agree in writing upon a person or persons not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. Code, § 273. When the parties to an action, referable only by consent, have entered into a written stipulation through their respective attorneys, to refer the cause to a person specified, and, through inadvertence or mistake, an order is made directing a reference to some other party, the order so made will be a nullity, and either party may disregard it and proceed to trial or inquest as if no consent to any reference had been given. Haner v. Bliss, 7 How. 246. See Quinn v. Lloyd, 7 Rob. 157. In the case last cited it was held, that appearing before the referee so appointed, and proceeding with the refer- ence without objection, was a waiver of the "irregularity." Whether the action was one in which a compulsory reference could be ordered without the consent of parties does not appear from the case as reported. Section 7. Who appointed referee. a. In general. It is nearly a universal practice, in ordinary actions in which a reference is ordered, to appoint a referee from among the counselors or clerks of the court, on account of their presumed fitness for the position, and their knowledge of the requirements of the office. But when the issues of fact to be tried involve questions of mechanical science, rather than ques- tions requiring legal learning and skill, a reference is sometimes ordered to some person skilled in that particular science. Thus, in an action in which the rights of the parties depended upon the determination of the extent of a reservation in a grant of a water privilege, the court advised a reference to one or more suitable referees, one of whom should be a capable engineer or millwright, Olmsteadv. Loomis, 9 N. T. (5 Seld.) 423, 430. So, ■ in a case relating to the settlement of the estate of a deceased mer- chant, the whole issues were referred, by consent of parties, to three referees, two of whom were lawyers and the other a mer- chant. Roosevelt v. Thurman, 1 Johns. Ch. 220. The person chosen as referee should be one who is free from interest, prejudice or bias, and not a near relative of any of the parties to the action. The reason of this rule is obvious ; for, while a person appointed referee might not be influenced in favor of one of the parties by reason of interest or relationship, still the desire to avoid any supposed partiality might exert an in- fluence to the contrary. But if parties, with knowledge of the EEFEEENCE, AND APPOINTING A EEFEEEE. 271 Judge as referee — In actions for divorce. fact, select a referee who is interested in the subject-matter of the action, they will nevertheless be bound by his decision. Matthew v. OUerton, 4 Mod. 226 ; S. C, Comb. 218 ; Hard. 44. Except where an infant or an absentee is a party, the parties have an absolute right to select the referee ; and where a person has been agreed upon by a written stipulation, the court has no authority to refer the cause to any other person. Code, § 273 ; Saner v. Bliss, 7 How. 246. But, if the parties do not so agree, the court may appoint one or more referees who are free from exception, and to whom some of the parties do not object. Except in actions for divorce, no person can be appointed referee to whom all the parties in the action object. Code, § 273. Where both parties move for a reference, and fail to agree upon the person to be appointed referee, the court will give preference to the nomination of the party first giving notice of the motion. Graham v. Wood, 1 Wend. 15. b. Judge as referee. The Code provides that no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice, and not already re- ferred, unless the parties otherwise stipulate. Code, § 273. The constitution of the State also declares that no judicial offi- cer, except justices of the peace, shall receive to his own use any fee or perquisite of office ; nor shall any judge of the court of appeals, justice of the supreme court, or judge of a court of record, in the cities of New York, Brooklyn or Buffalo, practice as an attorney or counselor in any court of record in this State, or act as referee. Const. N. Y., art. 6, § 21. This prohibition does not apply to a commissioner of appeals. Settle v. Tan Evrea, 49 N. Y. (4 Sick.) 280. c. Residence of referee. Under the old system of practice it was held that the persons appointed as referees must reside in the county in which the venue is laid in the action in which ap- plication is made for a reference. Chubb v. Berry, 7 Wend. 483 ; Sherwood v. Trumper, 11 Johns. 406. Under the present practice the residence of the referee is not deemed of any im- portance. d. In actions for divorce. In actions for divorce, as in every other action where the defendant is not an infant or an absentee, the parties may, by written stipulation, agree upon a person to act as referee, and the court must make the appointment accord- ingly. Code, §§ 270, 273. 272 REFERENCE, AND APPOINTING A REFEREE. Number of referees — General powers of referees — Limited by statute. But where the parties fail to agree as to the person to be ap- pointed referee, the court is unrestricted in its power of selection, and may appoint as referee any person except one to whom all the parties object. Code, § 273. In cases of default, in actions of this nature, the court will not order the reference to a referee nominated by either party. Rule 87, Sup. Ct. See Simmons v. Simmons, 3 Rob. 642. e. Number of referees. By the practice of the court under the old system, the party moving for a reference nominated three referees to whom it was proposed to refer the cause. The oppo- site party then had the right to strike out the name of one of the persons proposed, and substitute another in his stead, leaving two originally named, who were appointed by the court unless cause was shown to the contrary. Graham v. Wood, 1 Wend. 15. This practice may be still followed where the parties fail to agree upon a referee or referees. The Code provides that the number of referees shall in no case exceed three. Code, § 273. And, although three referees may be appointed in all cases of reference under the Code, the prac- tice is falling into disuse, and in nearly every case the cause is referred to a single referee. ARTICLE II. GENEEAL POWEES OE EEEEEEES. Section 1. In general. a. Limited by statute. In considering the powers of a referee, the object for which he was appointed or the nature of the ref- erence must be kept continually in view. "Where a reference is made to a referee, simply to take and state an account, he is a mere substitute for a master in chancery, and must conform in his proceedings to the old chancery practice, which is still re- tained in force in certain cases by section 469 of the Code, and rule 97 of the supreme court. Palmer v. Palmer, 13 How. 363 ; Ketchum v. Clark, 22 Barb. 319. Under the old chancery prac- tice, a master's report was disregarded when it exceeded the terms of the reference ; and the master had no power to dispense with or relax the general orders of the court. Smith v. Webster, 3 Mylne & Cr. 244. The same rules apply to referees under the Code. REFERENCE, AND APPOINTING A REFEREE. 273 General powers of referees — Bound by decisions. But where by the order of reference the whole issues are referred, the referee by the consent and act of the parties, and by operation of law, is substituted in the place of the court. The trial is to be had bef6re him, as before one of the judges of the court, and for the purposes of the trial and its disposition, he has, for the time being, the ordinary powers of the court. Palmer v. Palmer, 13 How. 363. Section 272 of the Code declares that "The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They shall have the same power to grant adjournments and to allow amendments to any pleading and to the summons, as the court upon such trial, upon the same terms and with the like effect. They shall have the same power to preserve order and punish all violation thereof upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance, or refusal to be sworn, or to testify, as is pos- sessed by the court. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal under section 268 ; and they may in like manner settle a case or exceptions. The report of the referees upon the whole issues shall stand as the decision of the court, and judgment may be entered thereon, in the same manner as if the action had been tried by the court." This section confers upon* the referee complete jurisdiction over the cause, as much so as any judge could possess at special term for its trial ; and the mode of conducting the trial is within the discretion of the referee, so far as relates to all questions within the ordinary discretion of a judge on the trial of a cause. Palmer v. Palmer, 13 How. 363. But notwithstanding that the statute has conferred upon referees, to whom the whole issue is referred, the power of a court at special term, it is only by force of the statute that the referee has any power whatever. Referees, like all other inferior and subordinate tribunals, in regard to questions of jurisdiction, are mere creatures of the statute. Their powers in that respect are special and limited. They possess no powers by implication, but are confined strictly to the powers expressly conferred. Bil- lings v. Baker, 6 Abb. 213. b. Bound by decisions. A referee has no right to disregard the decision of the court at general term upon the express point Vol. Ill — 35 274 REFERENCE, AND APPOINTING A REFEREE. Must act in proper person — Improper influence. before him. Decisions so pronounced are authoritative upon the questions presented, and are binding upon both judges of the court and referees, and upon all other subordinate tribunals, until overruled bj a subsequent decision at general term, or over- ruled by the court of appeals. A report of a referee, and the judgment entered thereupon, will be reversed if it is in conflict with a decision of the court at general term. Burt v. Powis, 16 How. 289 ; Harderiburgh v. Crary, 50 Barb. 32. See Billings v. VanderbreTc, 15 How. 295. c. Must act in proper person. A referee must act in his own proper person in the trial of a cause referred to him, and cannot delegate his authority, or act by proxy any more than a judge or juror. Shultz v. Whitney, 9 Abb. 71 ; S. C, 17 How. 471. Thus, where a referee is employed to make a sale, he must at least be present at the sale, and have the immediate direction of the same, even though he employs an auctioneer ; and even where a sale is fairly made by a competent agent deputized for that pur- pose by the referee, the sale will be set aside if it appears that the same was not made in the presence of the referee. Heyer v. Beams, 2 Johns. Ch. 154. d. Improper influence. The right of litigants to have the unbiased judgment of the jury upon the evidence openly pro- duced before them has always been guarded with the most jealous watchfulness by the courts. Whenever it has been seen that by any means or influence beyond'what has transpired upon the trial, and in the presence of the parties, the minds of the jury may have been operated on with reference to their verdict, it has been deemed sufficient ground for granting a new trial. As a referee takes the place of a jury as well as of the court, and as his decision upon questions of fact is, like that of a jury, as a general rule, conclusive, the courts have held that the same rule of law which protects parties from any undue influence upon the minds of jurors, should be substantially applied to referees, and that, if it can be made to appear that the successful party unduly influenced the referee even in the slightest degree, the report will be set aside. Borlon v. Lewis, 9 How. 1 ; Boosa v. Saugerties & Woodstock Turnpike Road Co., 12 id. 297; Tale v. Gwinits, 4 id. 253. Thus, where a referee, in the absence and without the consent of the adverse party, personally examined a piece of machinery, the utility of which was the subject of litigation, and during REFERENCE, AND APPOINTING A REFEREE. 275 Striking out complaint. such, examination received explanations from the witnesses of one of the parties, this was held a sufficient ground for setting aside the report. Yale v. Gwinits, 4 How. 253. So where the referee had repeated conversations with each of the attorneys, in the absence of the other, in relation to the ques- tions pending before him, his report was set aside on the ground that such conversations might have exercised an undue influence upon his mind, and affected his decision. Dorlon v. Lewis. 9 How. 1. But while the report of a referee may and should be set aside upon even the slightest proof of improper dealings between him and the successful side, provided such dealings are shown to have a tendency, no matter how remote, to influence the action of the referee in favor of such party, a report will not be set aside upon mere suspicion and surmise, founded upon previous improprieties with the unsuccessful side. Gray v. Fisk, 12 Abb. N. S. 213 ; S. C, 42 How. 135. e. Striking out complaint. A referee has power under the Code to dismiss an action upon the ground that the complaint does not state facts sufficient to constitute a cause of action. Coffin v. Reynolds, 37 N. Y. (10 Tiff.) 640 ; S. C, 5 Trans. App. 74. So upon the hearing the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited or his com- plaint be dismissed in like manner as upon a trial, at any time before the cause has been finally submitted to referees for their decision. Rule 39, Sup. Ct. Under the provisions of section 390 of the Code, a party to an action may, at the instance of the adverse party, be compelled • by the process of subpoena duces tecum, not only to appear at the trial and submit to a personal examination, but to produce books and papers in his possession, precisely as any other witness may be so compelled ; and if he fails or refuses to appear and tes- tify, or to produce books and papers, when properly subpoenaed for that purpose, he may be punished as for a contempt, and his complaint, answer or reply may be stricken out under the pro- visions of section 394 of the Code. Bonesteel v. Lynde, 8 How. 226 ; S. C. affirmed, 8 id. 352 ; Central National Bank of the city of New York v. Arthur, 2 Sweeny, 194 ; MitchelTs Case, 12 Abb. 244 ; Commercial Bank of Albany v. Dunham, 13 How. 276 REFERENCE, AND APPOINTING A REFEREE. Amending complaint. 541 ; Stalker v. Gaunt, 12 N. Y. Leg. Obs. 124 ; People v. Dyckman, 24 How 222. Section 272 of the Code provides that referees shall have the same power to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attend- ance, or refusal to be sworn or testify, as is possessed by the court. Under the authority given by this section and sections 390, 394 of the Code, a referee may strike out the complaint, answer or reply of a party who fails to appear and testify, either orally or by the production of documents in his possession, after having been properly subpoenaed for that purpose. /. Amending complaint. Section 272 of the Code confers upon referees the same power to allow amendments to any pleadings, etc., as is possessed by the court upon trial, upon the same terms and with like effect. Bennett v. Lake, 47 N. Y. (2 Sick.) 93. Section 173 of the Code confers power upon the court, in fur- therance of justice and upon such terms as may be proper, to amend any pleading, process or proceeding by adding or strik- ing out the name of any party ; or by correcting a mistake in the name of a party ; or a mistake in any other respect ; or by in- serting other allegations material to the case ; or where the amend- ment does not change substantially the claim or defense, by con- forming the pleadings to the facts proved. This power to allow amendments is derived wholly from the Code, as, prior to that act, a referee had no power to grant any amendments to the pleadings in an action pending before him. Ford v. Ford, 53 Barb. 525 ; S. C, 35 How. 321. It has been held that referees have no power to allow amend- ., ments to pleadings under section 173 of the Code, and that their power of amendment is confined to immaterial variances arising on the trial under sections 169 and 170 of the Code. Union Bank v. Mott, 18 How. 506 ; S. C, 10 Abb. 372. This limitation of the power of a referee is not, however, in accordance with the language of section 272 of the Code, nor is it sustained by the court of last resort. Bennett v. Lake, 47 N. Y. (2 Sick.) 93 ; Milvin v. Wood, 4 Abb. N. S. 438 ; S. C, 3 Trans. App. 297 ; 3 Keyes, 533. See Wood'iuff v. Dickie, 31 How. 164 ; S. C, 5 Rob. 619. It has also been held that a referee has no power to permit an amendment to a pleading setting up a new cause of action or defense. Ford v. Ford, 35 How. 321 ; S. C, 53 Barb. 525 ; Union Bank v. Mott, 18 How. 506; S. C, 10 Abb. 372; Woodruff v. REFERENCE, AND APPOINTING A REFEREE. 277 Disregarding variances. Dickie, 31 How. 164 ; S. C, 5 Rob. 619. The current and weight of authorities are, however, to the reverse of this rule, and it may be laid down as a rule that the court, or a referee, may permit an amendment to a pleading, by the insertion of a new cause of action or a new defense. Secor v. Law, 9 Bosw. 163 ; S. C. affirmed, 3 Keyes, 525; 33 How. 618 n; Union National Bank of Troy v. Bassett, 3 Abb. N. S. 359 ; Melvin v. Wood, 4 id. 438 ; S. C, 3 Trans. App. 297 ; 3 Keyes, 533 ; Van JVess v. Bush, 14 Abb. 33 ; S. C, 22 How. 481 ; Vibbard v. Roderick, 51 Barb. 616 ; Union Bank v. Mott, 19 How. 267 ; S. C, 11 Abb. 42. As the Code confers the same powers of amendment upon the referee as is possessed by the court upon a trial of a cause, a further discussion of the cases in which an amendment may be allowed, and the extent and character of the amendment, when allowed, may be found on page 169, ante. See vol. 2, 506 to 508. g. Disregarding variances. The Code provides, that no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits ; and that, whenever it is alleged that the party has been so misled, the fact must be proved to the satisfaction of the court, and in what respect he has been mis- led ; and thereupon the court may order the pleading to be amended upon such terms as shall be just. Code, § 169. It is also provided, that where the variance is not material, as provided in section 169, the court may direct the fact to be found according to the evidence, or may order an immediate amend- ment without costs. Code, § 170. The powers thus conferred upon the court by sections 169 and 170 are also possessed to the same extent by referees. A referee, as well as a judge, may disregard any variance between the pleadings and proof, where it is clear that the adverse party has not been misled to his prejudice, or he may grant an amendment to 'the pleading conforming the complaint to the facts proved. Dunnigan v. Crummey, 44 Barb. 528 ; Harmony v. Bingham, 1 Duer, 209 ; Hart v. Hudson, 6 id. 294 ; Union Bank v. Mott, 18 How. 506 ; S. C, 10 Abb. 372. But where the complaint sets up one cause of action, and the proof on the trial establishes another, the referee may properly dismiss the complaint in the absence of any application to amend the pleadings so as to conform to the proofs, or to apply the law 278 REFERENCE, AND APPOINTING A REFEREE. - — ■ 1 Subpcena for reference — Subpoena ticket for reference. to the undisputed facts, without reference to the allegations of the complaint. Tracy v. Ames, 4 Lans. 500. See Short v. Barry, 3 Lans. 143 ; 40 How. 210 ; 58 Barb. 177. 7i. Compelling the attendance of witnesses. Referees have the same power to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non- attendance, as is possessed by the court. Code, § 272. Subpoena for reference. The People of the State of New York to Greeting: We command you and each op you, that (all and singular business and excuses being laid aside) you and each of, you appear and attend before , referee, duly appointed under a rule of the court, on the day of , 187 , at o' clock in the noon, at , to be examined, as a witness, at the instance of , in a certain action now pending in said court, then and there to be tried, between plaintiff , and , defendant , 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, , Esquire, judge or justice of our said court, the day of , one thousand eight hundred and seventy - , Cleric. , Attorney for Subpcena ticket for reference. 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 , the referee appointed by the court, at , on the day of , 187 , at o'clock in the noon, to testify all and singular what you may know in a certain action now pend- ing in the supreme court, and then and there to be tried between , plaintiff , and , defendant , on the part of the And for a failure to attend, you will be deemed guilty of a con- tempt of court, and liable to pay all loss or damages sustained thereby to the party aggrieved, and forfeit $50 in addition thereto. Dated the day of , 187 . By the court. , Attorney. To Where a person, who is in prison, is required as a witness before a referee, his presence may be compelled by a subpcena REFERENCE, AND APPOINTING A REFEREE. 279 Proceeding ex parte — Mode of examination or trial. habeas corpus ad testificandum. 2 R. S. 559 (580), § 3. See,. also, Marsden v. Overbury, 18 C. B. 34 ; S. C, 36 Law & Eq. 276. i. Proceeding ex parte. If after the service of notice of the hearing before the referee the plaintiff fails to appear, the referee may proceed ex parte to dismiss the complaint. The referee should report according to the fact, and the defendant may there- 4 upon perfect his judgment. Rule 39, Sup. Ct. See Williams v. Sage, 1 Code R. N. S. 358 ; Stephens v. Strong, 8 How. 339 ; Sage v. Mosher, 17 id. 367 ; Salter v. Malcolm, 1 Duer, 596. So if the defendant fails to appear, the plaintiff may proceed to trial, and obtain a report in his favor, upon which he may enter judgment in the same manner as if the action had been tried by the court. j. Mode of examination or trial. The Code declares that the trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They have the same power to grant adjournments, and to allow amendments to any plead- ings and to the summons, as the court upon such trial, upon the same terms and with like effect. They have the same power to preserve order and to punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attach- ment, and to punish them as for a contempt for non-attendance, or for a refusal to be sworn, or to testify, as is possessed by the court. Code, §272. This section of the Code confers upon the referee complete jurisdiction over the cause, and for the purposes of a trial places him in the position of a judge at special term. The mode of conducting the trial, therefore, must be within the discretion of the referee, so far as relates to all questions within the ordinary discretion of a judge on the trial of a cause. No exception lies to the decision of a referee as to the mode of proceeding where all the issues are referred. Palmer v. Palmer, 13 How. 363 ; Pratt v. Stiles, 17 id. 211 ; S. CI, 9 Abb. 150. The preliminaries of the reference being arranged, the referee proceeds to call the cause and swear the witnesses. The wit- nesses are examined orally and their answers reduced to writing by the referee. He is, of course, governed by the legal rules of evidence, and cannot receive parol proof where the same facts may be established by a written instrument, which is proved to be 'in existence, and is neither produced nor its non-production 280 KEFEKEINICE, AND APPOINTING A REFEREE. Mode of examination or trial. accounted for. Hatch v. Pryor, 3 Keyes, 441 ; S. C, 3 Trans. App. 317 ; Every v. Merwin, 6 Cow. 360. But the mere order in which proof shall be received rests in the discretion of the referee. Gibson v. Pearsall, 1 E. D. Smith, 90. So it is within his discretion to allow leading questions to be put to the witness, or otherwise {Beach v. Raymond, 2 E. D. Smith, 496) ; or to permit a witness to be recalled at the close of the case (Pearson v. Fiske, 2 Hilt. 146 ; S. C, 7 Abb. 419) ; or to hear further tes- timony after the case is closed. Trimble v. Stilwell, 4 E. D. Smith, 612 ; Buguid v. Ogilvie, 3 id. 527 ; S. C, 1 Abb. 145 ; Ayrault v. Sackelt, 17 How. 461 ; S. C, 9 Abb. 154, note. As to Discre- tion, see ante, 210, 211. A referee may also take testimony subject to objection, reserving the question as to its admissibility until the close of the trial, or even until his final decision, stating in his report whether such testimony has been received or excluded. But if the party objecting to the admissibility of the evidence insists that the referee shall decide as to its admissibility at the time, the referee should not receive such evidence and reserve to him- self the power of retaining or rejecting it at the conclusion of the case. Smith v. Kobbe, 59 Barb. 289 ; Peck v. Yorks, 47 id. 131 ; Clussman v. Merkel, 3 Bosw. 402 ; Brooks v. Christopher, 5 Duer, 216 ; McEnight v. Dunlop, 5 N. Y. (1 Seld.) 537. But where a referee has received competent evidence subject to excep- tion and to future decision as to its admissibility, an exception to this conditional admission will become unavailable, in case the final decision is in favor of retaining the evidence. Bihin v. Bihin, 17 Abb. 19. Although the practice of receiving evidence subject to objection prevails in some parts of the State, in trials before referees, it has never been expressly sanctioned by the courts, but has on the contrary been severely criticised and con- demned by the court of appeals. Sharpe v. Freeman, 45 N. Y. (6 Hand) 802. It is clear that this practice is more honored in the breach than in the observance. See Meyers v. Betts, 5 Denio, 81 ; Allen v. Way, 7 Barb. 585 ; S. C, 3 Code R. 243. The mode of examination here discussed relates to a reference to hear and determine the whole issues. Where the reference is made to a referee simply to take and state an acconnt, the referee is a mere substitute for a master in chancery, and must conform in his proceedings to the old chancery practice. Palmer v. Palmer, 13 How. 363 ; Cameron v. Freeman, 18 id. 310 ; Eel- REFERENCE, AND APPOINTING A REFEREE. 281 Mode of examination or trial — Contempts. chum v. OlarTc, 22 Barb. 319 ; Elmore v. Thomas, 7 Abb. 70. See Interlocutory Decrees or Orders, etc. Under that practice all parties accounting before a master were required to bring in their accounts in the form of debtor and creditor, and if any of the parties were not satisfied with the accounts so brought in, they could proceed to examine the ac- counting party upon interrogatories, under the direction of the master. Rule 107, Court of Chancery. This practice must still be followed in such actions. Wig gin v. Gans, 4 Sandf. 646. Where the reference is to report upon any specific question of fact involved in the issue, the referee is bound by the same rules in regard to the admission or rejection of testimony that are applicable to trials in other cases ; and, in general, the mode of examination is similar in all respects to the mode of examination on a reference to hear and determine the whole issues. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testi- mony of the witnesses must be signed by them at the conclusion of their examination, to be filed with the report of the referee. Rule 39, Sup. Ct. Jc. Contempts. The Code declares that referees shall have the same power to preserve order upon the trial and to punish all violation thereof, and to compel the attendance of witnesses before them by attachment, and to punish them as for a con- tempt for non-attendance, or refusal to be sworn or testify as is possessed by the court. Code, § 272. The power to punish for contempt was no doubt intended to be confined to cases in which the referee acts as a substitute for the court to hear and determine the entire issues in a cause. Burnett v. Photon, 11 Abb. 157; S. C, 19 How. 530. On the trial of such issues, the referee has an undoubted au- thority to adjudge that a witness examined before him is in con- tempt for refusing to testify, or to produce papers or documents, when required to do so by a subpoena duces tecum. Heerdt v. Wetmore, 2 Rob. 697. This power to punish for a contempt of court committed in the presence of a referee is not vested by the statute exclusively in the referee. The court retains its inherent original power, concurrent with the referee, to punish for a contempt of court in a matter pending before a referee appointed by it. Burnett v. Phalon, 11 Abb. 157 ; S. C, 19 Vol. III.— 36 282 REFERENCE, AND APPOINTING A REFEREE. Contempts — Form of attachment against witness for non-attendance before referee. How. 530 ; Seeley v. Jobson, 6 Abb. 217, note ; Byas v. Smith, 4 Bosw. 679. But there are cases in which the referee should act promptly in vindicating the dignity of his court. Thus, where a counsel repeatedly interrupts the orderly proceedings on the trial by instructing a witness not to answer questions, it is the duty of the referee, then and there, to adjudge the counsel to be guilty of disorderly and contemptuous behaviour com- mitted during the sitting before such referee, in his immediate view and presence, and directly tending to interrupt the proceed- ings, or to impair the respect due his authority, and to issue an attachment and commit him. Heerdt v. Wetmore, 2 Rob. 697. In the case last cited it was held that the authority to punish for such misconduct pertains, solely and exclusively, to the court in which it occurs, in its immediate view and presence ; and that the power to punish therefor could no more be dele- gated to a judge of the superior court than it could be legally- assumed by a judge of some other tribunal. See Seeley v. Job- son, 6 Abb. 217, note. But where the referee declines to take upon himself the re- sponsibility of committing a party for a contempt, he should first pass upon the question, even if he reports his facts, conclu- sions, etc., to the court, in order that the attachment may issue from it. Heerdt v. Wetmore, 2 Rob. 697 ; Burnett v. PMlon, 19 How. 530 ; S. C, 11 Abb. 157 ; Fobes v. Meeker, 3 Edw. Ch. 452 ; Fraser v. Phelps, 4 Sandf. 682. In regard to the proceedings to punish for contempts, see Con- tempts. See, also, Pitt v. Davison, 37 N. Y. (10 Tiff.) 235 ; S. C, 34 How. 355 ; 3 Abb. N. S. 398 ; 4 Trans. App. 266 ; King v. West, 10 How. 333, 335. Form of attachment against witness for non-attendance before referee. The People of the State of New York to the Sheriff of , greeting : We command you to attach A. B., and forthwith (or, on the day of instant, at o'clock in the noon) bring him before me, the undersigned referee, at my office, No. , street, in the (city) of , to answer for his misconduct in not obeying a writ of subpoena to him directed, and on him duly served, commanding him to appear before me, the said referee, at the place aforesaid, and give evidence in a certain action pending between C. D., plaintiff, and E. F., defend- REFERENCE, AND APPOINTING A REFEREE. 283 Affidavit of service of subp'oena — Opening case. ant, on the part of the . and have you then and there this writ. Witness, G. H., referee aforesaid, at the city of , the day of , one thousand eight hundred and G. H., 0. K., Referee. Attorney. Where this writ issues to compel the attendance of a witness, a foundation must be first laid therefor by proof that the party has been duly subpoenaed. This may be done by an affidavit in the following form : Affidavit of service of subpoena. {Title of cause.) ( Venue.) A. B., being sworn, says that the witness hereafter named re- sides at the place where he was subpoenaed by deponent, as hereafter stated. That deponent did, at the time and place below set forth, serve the annexed subpoena upon the witness named therein, by showing said subpoena to such witness, and delivering to him a subpoena ticket, containing the substance thereof and paying to him the sum set opposite his name, viz. : On 0. D., at , N. Y., amount paid, dollars, as and for traveling fees for such witness from the residence of , said witness, to the place mentioned in the subpoena, and one day' s attendance as such witness. Sworn and subscribed before me, ) A. B. this day of , 187 . J 1. Opening case. It is a matter of sound discretion with a referee to open a cause, after it has been submitted to him, for the purpose of hearing further testimony ; and it is presumed that he will discreetly exercise such discretion. Gleaveland v. Hunter, 1 Wend. 104. Thus, in the exercise of this discretion, the referee may, even upon his own motion, open a case for further testimony, although several days have elapsed since the evidence was closed and since the cause was summed up and submitted to his decision. Duguid r. Ogilvie, 3 E. D. Smith, 527; S. C, 1 Abb. 145; Packer v. French, Hill & Denio, 103; Putnam v. Crombie, 34 Barb. 232 ; Ayrault v. Sackett, 17 How. 461 ; S. C, 9 Abb. 154, note ; affirmed, 17 How. 507. He may open the case also on the application of either party ; but the referee should be careful not to expose himself to such applications from either side, by advising either party in respect 284 REFERENCE, AND APPOINTING A REFEREE. Fixing time of hearing — Granting adjournments. to his decision in advance of the delivery of his report. Should this discretionary power be abused, the court would apply a remedy after the report has been made, on the fact of such abuse being shown. Ayrault v. Sackett, 17 How. 461 ; S. C, 9 Abb. 154, note. But, if the referee decides not to receive further proof, after the case has been closed by consent of parties, and the supreme court does not deem that the party offering such proof has made out a case requiring them to give relief, there is no further remedy. The receiving of further proof is not a matter of strict right, and the court of appeals will not review the exercise of a discretion by the original tribunal. Williams v. Hayes, 20 N. Y. (6 Smith) 58. m. Fixing time of hearing. Upon the receipt of a certified copy of the order of reference, the referee should proceed to fix the time for the hearing. The appointment of the time may be either by written notice or by parol. Stephens v. Strong, 8 How. 339. As the trial must be upon the same notice as a trial by the court, the time fixed for the hearing should not be less than four- teen days from the time of the service of the order of reference, unless the parties stipulate for a shorter time. See Code, § 272. Although it is not necessary that the referee should fix the time and place of the hearing in writing, it is the better practice to do so, in order that a copy of the appointment may be served with the notice of trial. Stephens v. Strong, 8 How. 339 ; Sage v. Mbsher, 17 id. 367. n. Granting adjournments. A referee has the same power to grant adjournments as the court upon the trial, and upon the same terms and with like effect. Code, § 272. See ante, 64 to 77. In the exercise of this power, referees are required to exercise a reasonable discretion ; and if a referee unreasonably refuses an adjournment at the request of either party, his report will be set aside on the motion of the party aggrieved thereby. Forbes v. Frary, 2 Johns. Cas. 224. The Revised Statutes provide that referees shall appoint a time and place for the hearing, and shall adjourn the same from time to time, as may be necessary ; and, on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the next term of the court in which the case is pending. 2 R. S. 384 (399), § 43. The proceeding requires that they shall proceed with diligence to hear and deter- mine the matter in controversy. Id., § 42. REFERENCE, AND APPOINTING A REFEREE. 285 Granting adjournments — Referee as a witness. Under the foregdng provisions of the Revised Statutes, referees may, in proper cases, adjourn for a reasonable time on their own motion, and without the consent of the parties, or either of them. The only limitation in the statute in relation to such adjournments is, that they shall be such as may be neces- sary, and of that necessity the referees must be the judges. Ex parte Butter, 3 Hill, 464 ; S. C, 1 N. Y. Leg. Obs. 178. This power of granting adjournments, as it existed under the Revised Statutes, is still preserved by the Code. See Code, §§ 272, 421. But the power is not limited as to time, as in section 43 of the Revised Statutes. The courts will not, however, permit a referee to act oppres- sively and delay the parties for an unreasonable time, but will vacate so much of the order of reference as designates the referee, and will appoint another, with directions to proceed in the reference. Forrest v. Forrest, 3 Bosw. 661 ; Ex parte But- ter, 3 Hill, 464 ; S. C, 1 N. Y. Leg. Obs. 178. Sickness, family afflictions, or the calls of urgent business, are sufficient excuses to authorize a referee to adjourn a cause on his own motion. Ex parte Butter, 3 Hill, 464 ; S. O, 1 N. Y. Leg. Obs. 178. But the intention of one of the counsel to visit Europe, either on business or for pleasure, is not a sufficient ground for an adjournment. Forrest v. Forrest, 3 Bosw. 661. The absence of material witnesses is, however, a good ground for granting an adjournment. Forbes v. Frary, 2 Johns. Cas. 234 ; Birdv. Sands, 1 id. 394 ; S. O, Coleman & Caines' Cas. 107 ; Sudam v. Swart, 20 Johns. 476. In all cases the application for an adjournment must be made to the referee, and not to the court appointing him. Langley v. Hickman, 1 Sandf. 681. In making adjournments, the referee should, of course, follow the settled practice of the courts in similar cases, and observe all due formality. But when both parties have given all the testimony they desire before the referee, and have submitted the cause to be decided b§ him on such testimony, the fact that adjournments were not formally made from day to day, or from the time of one hearing to another, is in itself of no consequence, and will not invalidate the proceedings. Accessory Transit Co. v. Garrison, 9 Abb. 141 ; S. C, 18 How. 1. o. Beferee as a witness. In no case can a referee be sworn as a witness in a cause referred to him, nor can one of several 286 REFERENCE, AND APPOINTING A REFEREE. Refusing 1 to hear evidence. referees be so sworn. This rule is founded on the ground that the referee acts as a judge, and would be compelled to pass upon his own competency, and the relevancy of the testimony he might give. To allow a judge to be sworn as a witness in a cause tried before him, would be contrary to public policy, and as the referee acts as both judge and jury in the trial of a cause, this objection applies with double force to him. Morss v. Morss, 11 Barb. 510 ; S. C, 1 Code R. N. S. 374 ; 10 N. Y. Leg. Obs. 151. p. He/using to hear evidence. Where several witnesses have been sworn and examined on both sides, touching the character for truth of a witness previously examined, the referee has a right to interpose and refuse to hear further evidence, either against or in support of the character of the witness. Green v. Brown, 3 Barb. 119. See Nolton v. Moses, id. 31. So where the trial of a cause involves a question on which the opinions of witnesses are competent testimony, the referee may limit the number of witnesses to be examined upon each side as to matters of opinion. Sizer v. Burt, 4 Denio, 426. So where a large number of witnesses have been examined for the purpose of substantiating a single fact, the referee may refuse to hear the testimony of other witnesses called to testify to the same fact. Anthony v. Smith, 4 Bosw. 503. But while a referee may exer- cise his discretion in controlling the number of witnesses to be examined to a single point to prevent a useless waste of time, he cannot, in. the exercise of such discretion, refuse to hear further testimony, where one witness has been examined on each side, as to some particular point of inquiry, and the evidence so given has been contradictory. Ward v. The Washington Ins. Co., 6 Bosw. 229. See EaUn v. Brown, 1 E. D. Smith, 36. And where the right to recover depends upon the proof of a certain fact, the party offering testimony upon that point should not be limited as to the number of witnesses to be examined in relation thereto. Ante, 126, 211 ; Bubble v. Osborn, 31 Ind. 249. See 2 Wait's Law & Pr. 607. After a trial has been commenced before a referee, and a por- tion of the evidence taken, the fact that the cause was adjourned to allow the plaintiff to obtain leave of court to reply to a counter-claim, will not render it necessary for the referee to com- mence the trial denovo, upon the adjourned day ; and the referee may properly refuse to again hear evidence taken upon the trial REFERENCE, AND APPOINTING A REFEREE. 287 Requiring the production of books, etc. — Granting allowances. prior to the adjournment. White v. Smith, 46 N. Y. (1 Sick.) 418. See Union Bank v. Mott, 19 How. 267 ; S. C., 11 Abb. 42. q. Requiring the production of books, etc. A referee to whom all the issues in an action have been referred has no power to order the production of books or papers by either party where there is no provision to that effect in the order of reference. This power is limited to the court or a justice thereof, whether exercised under the Code or under the Revised Statutes. Frazer v. Phelps, 3 Sandf. 741 ; S. C, 1 Code R. N. S. 214. The power of the court to confer upon a referee authority to require the production of books and papers exists only in equitable actions, and has never been exercised or claimed by courts of law. North v. Piatt, 7 Rob. 207. See vol. 2, pp. 540, 553. Where a reference is ordered in an action of account, the statute gives to the referee power to examine the parties on oath, and to require the production of all books of accounts, papers and documents, in the custody or under the control of either party. 2 R. S. 385 (400), § 50. On a reference of this nature, a referee's certificate that the production of books and papers is necessary, will be presump- tively sufficient on a motion to a justice at chambers to warrant an order for their production. Frazer v. Phelps, 3 Sandf. 741 ; S. C, 1 Code R. N. S. 214. Under the provisions of section 272 of the Code it is clear that a referee has power to punish as for a contempt the refusal of a witness or a party to produce books or papers when properly subpasnaed for that purpose. All decisions to the contrary have been rendered obsolete by the amendment of that section. See Heerdt v. Wetmore, 2 Rob. 697 ; Bonesteel v. Lynde, 8 How. 226. r. Or anting allowances. A referee to whom a judgment or order is referred, with a view to his taking accounts between the parties, or by a single party, has power to grant all just allow- ances. This power should, however, be expressly conferred by the judgment or decree. The question of granting allowances will be found fully dis- cussed elsewhere. s. Costs. In equitable actions, where costs are in all cases discretionary, a referee, to whom the whole cause has been re- ferred, may, and should pass upon the question of costs ; and his decision thereon is conclusive, except perhaps in case of a 288 REFERENCE, AND APPOINTING A REFEREE. Costs — Altering report. manifest abuse of authority. Stephens v. Veriane, 2 Lans. 90 ; Pratt v. Stiles, 17 How. 211 ; S. C, 9 Abb. 150 ; Barker v. White, 3 Trans. App. 86 ; S. C, 3 Keyes, 495 ; 5 Abb. N. S. 124 ; Lud- ington v. Toft, 10 Barb. 447 ; Graves v. Blanchard, 4 How. 300 ; S. C, 3 Code R. 25 ; Mersereau v. Ryerss, 12 How. 300. But where costs are not discretionary, but the right thereto is determined by law, the referee has no power to award costs to either party. A referee has nothing to do with the question of costs in an action on a money demand on contract. Tilman v. Keane, 1 Abb. N. S. 23 ; Fuller v. Conde, 47 N. Y. (2 Sick.) 89. Thus, in an action upon contract tried by a referee, where the recovery is less than $50, the question whether or not the action was one of which a justice of the peace had juris- diction, must be determined by the facts found by the referee, and upon those facts the law determines the question of costs ; and the referee has no power over, and can give no judg- ment upon, the question of costs. Fuller v. Conde, 47 N. Y. (2 Sick.) 89. See Gilliland v. Campbell, 18 How. 177. So in actions prosecuted or defended by an executor or admin- istrator, a referee to whom the whole issue or cause is referred, has not the right to decide the question of costs, or power to award costs against the executor or administrator personally, or against the estate he represents. The power to grant costs against executors and administrators in actions under the Code, rests with the court. Mersereau v. Ryerss, 12 How. 300 ; Howe v. Lloyd, 9 Abb. N. S. 257 ; S. C, 2 Lans. 335. A referee has no power to grant an extra allowance of costs under the provisions of section 309 of the Code. Sackett v. Ball, 4 How. 71 ; S. C, 2 Code R. 47 ; Osborne v. Betts, 8 How. 31 ; Howe v. Muir, 4 id. 252 ; S. C, 3 Code R. 21 ; Mann v. Tyler, 6 How. 235 ; S. C, 1 Code R. N. S. 382. This power being given to the court only cannot be delegated. People v. Albany & Susquehanna R. R. Co., 5 Lans. 25. t. Altering report. The power of a referee to change or alter his report ceases upon his signing it and announcing that fact to the successful party. However omissive it may be the referee can make no changes in the report, as such, after the perform- ance of that act. The power given by rule 41 of the supreme court to insert further findings in the case at the request of either party does not affect the principle here stated. The court which authorized him to act in the first instance may, however, grant REFERENCE, AND APPOINTING A REFEREE. 289 Administering oaths. him authority to correct his report. But even after a referee has come to a conclusion after due deliberation upon a cause sub- mitted to him, has written his opinion, and announced his decision to the parties, he has not lost authority and control over the case, so long as he has not drawn up and signed a formal report thereon ; and he may reconsider his decision and change it or may withhold his report for the purpose of receiving further evidence. It is the signing of the report, together with the notice of the fact to the party entitled to it, that precludes his opening of the case for further consideration and closes his judicial authority therein. Ayrault v. Saclcett, 17 How. 507 ; S. C, 9 Abb. 154 note ; Gray v. MsTc, 12 Abb. N. S. 213 ; S. C, 42 How. 135 ; Litch v. Brotherson, 25 id. 407 ; S. C, 16 Abb. 384 ; Shear- man v. Justice, 22 How. 241 ; Kissam v. Hamilton, 20 id. 369. u. Administering oaths. The Code provides that every referee appointed pursuant to that act shall have power to administer oaths, in any proceeding before him, and shall have generally the powers now vested in a referee by law. Code, § 421. If more than one referee is appointed, any one of them may admin- ister the necessary oath to witnesses produced before them for examination. 2 R. S. 384 (399), § 46. But though the oath is in form administered by one of the referees, it is in truth the act of all, and it can only be done by the authority and in the presence of them all. In this respect one acts as the clerk of the board, just as the clerk of a court of record administers an oath at the circuit, by the authority and in the presence of the court. The former is the act of the board of referees, and the latter of the court. The former would be invalid in the absence of the other referees, as the latter would be in the absence of the judge. Morss v. Morss, 11 Barb. 510 ; S. C, 1 Code R. N. S. 374 ; 10 N. Y. Leg. Obs. 151. In all cases the power of a referee to administer a judicial oath is derived only from the order of the court appointing him, and unless the decision of the court, that the cause be referred to the referee, is incorporated in an order and entered in the minutes, any oath administered by such referee will be extra-judicial, and will be insufficient to sustain a charge of perjury against a witness to whom it was administered. Bonner v. McPhail, 31 Barb. 106. But a referee, duly appointed, not only has power, but it is his duty to administer the oath to witnesses, and he can receive no Vol. III. — 37 290 REFERENCE, AND APPOINTING A REFEREE. Control of court over referee — Discretion. evidence from witnesses not sworn by him, except, of course, where the deposition of a witness is taken on commission, or conditionally, etc. Thus, upon a reference to take the usual proofs and compute the amount due in an action of foreclosure, the referee cannot receive on the computation an affidavit sworn to before a commissioner of deeds. Security Fire Ins Co. v. Martin, 15 Abb. 479. v. Control of court over referee. It has been held by the supe- rior court, at general term, that referees are no longer officers of, or under the control of, the court ; that they become, by appoint- ment, an independent tribunal, having such powers as are given by statute ; that it was the plain intention of the legislature that this tribunal should possess all the powers and exercise all the functions of a court, independently and without accountability to any other tribunal, and that, its decisions should be subject to review only on appeal. Woodruff v. DicMe, 31 How. 164 ; S. C, 5 Rob. 619. See'Heerdt v. Wetmore, 2 id. 697. The power of a referee, on the trial of a cause, to act in all respects as an independent tribunal, has been too broadly stated in the foregoing opinion. A referee, appointed to hear and determine a cause, is always under the control and direction of the court, and may be removed at its pleasure ; and where a referee has exceeded his authority in making an order during the progress of a cause, such order may be set aside by the special term ; and he may be compelled to proceed to the trial of the issues referred to him for determi- nation. Ford v. Ford, 35 How. 321 ; S. C, 53 Barb. 525 ; Union Bank v. Mott, 18 How. 506 ; S. C, 10 Abb. 372.' See Barton v. Herman, 3 Daly, 320 ; S. C, 8 Abb. N. S. 399. As a general rule the courts will decline to interfere with their referees, while a reference is pending, in respect to errors which can be considered and corrected on appeal, or on motion to set aside the report. SchermerTiorn v. Develin, 1 Code R. 28 ; Lang- ley v. Hickman, 1 Sandf. 681. The courts refuse to act. in such cases as a matter of expediency, and not from want of power. w. Discretion. Where the Code has conferred discretionary powers upon a referee, the exercise of that discretion is not sub- ject to review by the appellate court. Thus, where it is within the discretion of a referee to allow an amendment to the plead- ings, his decision, granting or denying the amendment, cannot be reviewed. Melmn v. Wood, 3 Keyes, 533 ; S. C, 3 Trans. App. REFERENCE, AND APPOINTING A REFEREE. 291 Trial by referee, how conducted — Bringing on the hearing. 297 ; 4 Abb. N. S. 438 ; Woodruff v. Hurson, 32 Barb. 557. So the mode of conducting the trial is within the discretion of the referee, so far as relates to all questions within the ordinary dis- cretion of a judge on the trial of a cause ; and no exception lies to the decision of the referee so far as relates to the mode of pro- ceeding. Palmer v. Palmer, 13 How. 363. Thus, the refusal of an adjournment is a matter of discretion, and not reviewable (Cooley v. Huntington, 16 Abb. 384) ; and the same rule applies to his decision as to the order of admitting proof (Gibson v. Pearsall, 1 E. D. Smith, 90) ; the privilege of a counsel to ask leading questions (Oheeney v. Arnold, 18 Barb. 434) ; the recall- ing of witnesses (Pearson v. FisTte, 2 Hilt. 146) ; or the opening of a cause for the purpose of hearing further testimony. Ayr- ault v. SacJcett, 17 How. 507 ; S. C, 9 Abb. 154, note ; Kissam v. Hamilton, 20 How. 369 ; Cleaveland v. Hunter, 1 Wend. 104 ; Trimble v. Stilwell, 4 E. D. Smith, 512. Section 2. Trial by referees, how conducted. a. Bringing on the hearing. Where a cause is referred for the purpose of a trial, either party may proceed to bring on the hearing. Thompson v. Krider, 8 How. 248 ; Williams v. Sage, 1 Code R. N. S. 358. But when the reference is merely interlocutory, the party obtaining the order has the right, in the first instance, to bring on the hearing. Under the old chancery practice, if the party entitled to bring on the hearing neglected to do so, any other party or person interested in the subject-matter of the reference was at liberty to apply to the court to have the prosecution of the reference committed to him. This application could only be made upon the default of the party entitled to move, and default did not occur until thirty days after the entry of the order directing the reference. See QuacTcenbush v. Leonard, 10 Paige, 131 ; Holley v. Glover, 9 id. 9. It is presumed that the chancery practice must still be followed, although the practice of allowing either party to bring on the hearing is much more simple and seems unobjectionable. b. Appointment of hearing. The order of reference having been duly made and entered, the party entitled to bring on the hearing should serve upon the referee a certified copy of the order. See Bonner v. McPhail, 31 Barb. 106. The referee being thus duly commissioned to try the cause, should appoint a time and place for the hearing. 2 R. S. 384 (399), § 43. This appoint- 292 REFERENCE, AND APPOINTING A REFEREE. Appointment of hearing. ment may be oral or in writing, though a written appointment is preferable. Sage v. MosTier, 17 How. 367 ; Stephens v. Strong, 8 id. 339. If the appointment is in writing, a copy thereof should be served on the adverse party, either with or before the notice of trial. lb. These formalities being disposed of, the parties should then prepare for trial. As on trials by the court or jury, the parties should be prepared with their evidence, and should see that all necessary witnesses are subpoenaed in advance of the trial, as an adjournment of the hearing, for the purpose of procuring the attendance of witnesses, may be granted only upon the condition that the moving party pay a trial fee and the costs of procuring the attendance of the witnesses, etc., of the adverse party. See Union Bank v. Mott, 19 How. 267; S. C, 11 Abb. 42. If some of the witnesses of either party are non-residents of the State, the party desiring their testimony upon the trial should take the proper steps to procure the taking of their deposition on a com- mission ; and if there is not sufficient time to have their testi- mony so taken before the day appointed for the hearing, a stay of proceedings should be procured with the order for the com- mission. So where any of the witnesses are about to leave the State, or are so sick or infirm as to afford reasonable grounds for appre- hension that they will not be able to attend the trial before the referee, an application should be made to have the testimony of such witness or witnesses taken conditionally. If documentary evidence will be required on the trial, and the documents are not in the possession of the party desiring to introduce them in evidence, a subpoena duces tecum should be procured and served upon the party having such documents in his possession. So if a party has in his possession, or under his control, any paper which is material to the action and which he proposes to introduce in evidence upon the trial, he should exhibit it to the adverse party, or his attorney, and request an admission in writ- ing of its genuineness. So if either party desires a copy or an inspection of books, papers and documents in the possession or under the control of the adverse party, an order should be procured directing such party to produce such papers and grant an inspection. REFERENCE, AND APPOINTING A REFEREE. 293 Place of hearing — Notice of hearing. c. Place of hearing. Where a reference is ordered by a court of limited jurisdiction, the referee must appoint the hearing at some place within the jurisdiction of the court directing the refer- ence. Bonner v. McPhail, 31 Barb. 106. But where a reference of a cause is ordered by a court of gen- eral jurisdiction, the referee may appoint the hearing in any part of the State, provided the action is not local in its nature, or the parties assent to the change of venue. Newland v. West, 2 Johns. 188. The place of meeting need not coincide with the place of trial mentioned in the complaint. lb. ; Pierce v. Voor- Tiees, 3 How. 111. But the mere fact that a reference of a cause triable in one county is made to a referee residing in another county will not of itself operate as a change of venue, nor can the parties by meeting in the latter county from time to time, without objec- tion, be deemed to have assented to a change of venue for all purposes of the action. If the cause of action is local in its nature, and the place of trial has not been changed by order of the court, the right to proceed with the reference in any county other than that in which the venue is laid in the complaint, can be derived only from the consent of parties. Wheeler v. Mait- land, 12 How. 35. And where an action local in its nature, as, for instance, an action of foreclosure, is being tried, with the assent of the parties in a county other than that designated in the pleadings, the fact that it is being so tried will not estop a party from objecting to any other proceeding being had in a county other than that designated in the complaint. lb. Where a reference is ordered on failure to answer, the refer- ence must be executed in the county in which the action is tri- able, unless the court shall otherwise order. Rule 33 of Sup. Ct. ; Brush v. Mullany, 12 Abb. 344. d. Notice of hearing. The same notice of trial is required where the hearing is before the referee, as where the trial is before a court or jury. Code, § 272 ; Wetter v. Schlieper, 7 Abb. 92. The notice must, therefore, be'given at least fourteen days be- fore the hearing. Code, §§ 256, 272. An appearance and participation in the proceedings before a referee will, however, waive all objection to the insufficiency of the notice given. Wetter v. Schlieper, 7 Abb. 92. Either party may notice the cause for trial. Thompson v. Krider, 8 How. 248 ; Williams v. Sage, 1 Code R. N. S. 358. 294 REFERENCE, AND APPOINTING A REFEREE. Notice of hearing before referee — Referees to be sworn. Notice of hearing before referee. (Title of cause.) Sir : The above cause will be brought to trial before , the referee therein, at , on the day of , 187 , at o'clock in the noon. Dated the day of , 187 . Yours, etc., A. B., Attorney for To C. D., Attorney for Admission of service of notice. Due service of above (or within) notice is hereby admitted the day of ,187 . E. F., Attorney for e. Referees must all be present. If more than one referee is appointed to try a cause all must be present before any business can be legally transacted. 2 R. S. 384 (399), §§ 44, 46 ; M'Inroy v. Benedict, 11 Johns. 402 ; Bulson v. Lohnes, 29 N. Y. (2 Tiff.) 291 ; Harris v. Norton, 7 Wend. 534 ; Jackson v. Ives, 22 id. 637 ; Morss v. Morss, 11 Barb. 510 ; S. C, 1 Code R. N. S. 374 ; 10 N. Y. Leg. Obs. 151 ; Townsend v. Glens Falls Ins. Co., 10 Abb. N. S. 277. f. Referees to be sworn. Before proceeding to hear any testi- mony in the cause, the referees must be severally sworn faith- fully and fairly to hear and examine the cause, and to make a just and true report according to the best of their understanding. This, oath may be administered by any person authorized to take affidavits to be read in the court in which the suit is pending, or by any justice of the peace. 2 R. S. 384 (399), § 44. Although the statute is thus explicit in requiring a referee to be sworn, before entering upon his duty, yet it often happens that no such oath is taken. If the parties nevertheless proceed with the reference without objection, they will be held to have waived their right to object. Keator v. Ulster & Delaware Plank Road Co., 7 How. 41. See, also, People' v. Connor, 46 Barb. 333. g. General course on hearing. A trial by a referee or referees is conducted in all respects in the same manner as a trial by the court. Code, § 272. The party having the right to begin in a trial by the court would have the same right before the referee. The REFERENCE, AND APPOINTING A REFEREE. 295 General course on hearing. trial is to be had before him, as before one of the judges of the court ; and for the purposes of the trial and its disposition he has , the ordinary powers of the court. The mode of conducting the trial, therefore, is within his discretion, so far as relates to all questions within the ordinary discretion of a judge on the trial of a cause. Palmer v. Palmer, 13 How. 363. He may deter mine the order of admitting proof, determine the number of wit- nesses to be examined on a point in certain cases, decide whether leading questions shall be put, and also whether a witness shall be recalled and re-examined after he has left the stand. See art. 2, ante, 272, 274, 279, 280. "Witnesses are sworn by the referee before being examined as upon a trial by the court. The following oath may be adminis- tered. " You do solemnly swear (or affirm) that you will true answers make to such questions asshall be put to you touching the matters in reference in a certain cause depending in the (supreme court) of the State of New York, wherein A. .B. is plaintiff and C. D. and others are defendants, and therein will speak the truth, the whole truth, and nothing but the truth, so help you Grod." 1 Van Santv. Pr. 531. Or the oath may be in the following form : " You do solemnly swear (or affirm) that the evidence you shall give in the cause now pending in the supreme court in the State of New York, wherein A. B. is plaintiff and 0. D. is defendant, shall be the truth, the whole truth, and nothing but the truth, so help you Grod." The oath must be administered by the referee in person. See Security Fire Ins. Co. v. Martin, 15 Abb. 479. The witness being sworn, is first examined by the party calling him and is then .cross-examined by the opposite party. The referee may also put such questions to the witness as he deems proper. The referee takes down the answers of the witness as they are given, but not the questions to which they are responsive. If any question is raised as to the admissibility of evidence, the referee should pass upon it at once and not receive the evidence subject to exception. Sharpe v. Freeman, 45 N. Y. (6 Hand) 802. The referee may undoubtedly employ a clerk to perform the mere mechanical duty of writing down the evidence ; but this will not render it less necessary for the referee to be present at the same time. It is the duty of the referee to be always present during the examination of witnesses, as it is at all other times during the progress of the trial ; and the court will set aside his 296 REFERENCE, AND APPOINTING A REFEREE. General course on hearing — Defaults — Postponement. report if lie absents himself at such time against the will, and •under the objection of either party. Metcalfv. Baker, 11 Abb. N. S. 431. But the objection must be taken at the time ; and if the objection is not so taken, and the parties go on with the examination of witnesses and finally submit all the evidence to the referee for his decision, they will be deemed to have waived the right to object afterward. lb. But the referee can recover fees only for the time actually spent upon the reference, and cannot recover either as fees or disbursements for the services of others rendered for him during his absence. Schultz v. Whitney, 17 How. 471 ; S. C, 9 Abb. 71. Should the witness refuse to testify in relation to any point material to the issue, the referee should at once commit him for contempt, and if the refusal to testify is due to the advice of counsel given on the trial, the counsel should also be committed for contempt. Heerdt v. Wetmore, 2 Rob. 697 ; Code, § 272. The right of the referee to grant adjournments .and to allow amendments has been discussed elsewhere. h. Defaults. If either party fails to appeal at the hearing, after due notice, the referee may, in his absence, proceed upon the motion of the party giving the notice. Stephens v. Strong, 8 How. 339 ; M'Inroy v. Benedict, 11 Johns. 402 ; Sage v. Mosher, 17 How. 367 ; Williams v. Sage, 1 Code R. N. S. 358. i. Postponement. A referee may, in his discretion, postpone a hearing for good cause shown upon such terms as are usually imposed by courts upon putting off trials. 2 R. S. 384, §43; Sickles v. Fort, 12 Wend. 199 ; Van Rensselaer v. Fay, 18 Wend. 509 ; Butler v. Bates, 5 Hill. 375. Section 314 of the Code pro- vides, that when an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding $10, besides the fees of witnesses, may be imposed as the conditions of granting the postponement. Code, § 314. Prior to the Code, the referee had no power to compel the pay- ment of any costs imposed by him as a condition of granting a postponement or adjournment, and the only remedy of the opposite party, in case of a failure to pay the costs imposed, was to proceed at once to a hearing. Butler v. Bales, 5 Hill, 375. But as the Code gives to the referee the same power to grant ad- journments as the court, upon the same terms and with like effect, it follows, that when a party obtains the postponement of a trial on payment of costs, the adverse party may, on the omission of REFERENCE, AND APPOINTING A REFEREE. 297 Postponement — Variance — Nonsuit. the former to pay them, insist on having the trial proceed, or he may waive that right, and the referee, on motion, will compel payment. See Gamble v. Taylor, 43 How. 375 ; BuTkeley v. Keteltas, 2 Sandf. 735. The court will not allow the referee to postpone an action in- definitely or for an unreasonable time, but will either require the referee to proceed to a hearing, or will vacate so much of the order of reference as designates the referee. Forrest v. Forrest, 3 Bosw. 650. j. Variance. It is not only within the discretion, but it is the duty of the referee to disregard all immaterial variances between the pleadings and the proof, which have not misled the parties. Hart v. Hudson, 6 Duer, 294 ; Harmony v. Bingham, 1 id. 209 ; S. C. affirmed, 12 N. Y. (2 Kern.) 99. It is only where the allega- tions of the cause of action are unproved, not in some particular or particulars only, but in their entire scope and meaning, that a referee can dismiss a complaint for failure of proof. Code, §§ 147, 171 ; Poirer v. Fisher, 8 Bosw. 258. If the plaintiff at the hearing prove the substance of the allegations of the cause of action, though he fail to prove some particular or particulars of it, the variance must be disregarded as immaterial, unless the defendant prove at the hearing, to the satisfaction of the referee, that the alleged variance has actually misled him, and in what respect. See Code, §§ 145, 169 ; Oatlin v. Gunter, 11 N. Y. (1 Kern.) 368 ; Poirer v. Fisher, 8 Bosw. 258. Where an answer has been interposed, the plaintiff is entitled to any relief to which the facts proved entitle him, provided such facts are embraced within the issue, and the relief to be granted is consistent with the case made by tbe complaint. The matters in a complaint which do not tend to show a right of action in the plaintiff may be disregarded as surplusage, if there are other facts which constitute a cause of action. See Code, §§ 231, 275; Marquat v. Marquat, 12 N. Y. (2 Kern.) 336 ; Poirer v. Fisher, 8 Bosw. 258. Jc. Nonsuit. A referee has power to dismiss a complaint for not stating facts sufficient to constitute a cause of action. Coffin v. Reynolds, 5 Trans. App. 74; S. C, 37 N. Y. (10 Tiff.) 640. This power is expressly conferred by a rule of the supreme court, which provides, that on a hearing before referees, the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited or his complaint be dismissed in like manner as upon Vol. Ill — 3S 298 REFERENCE, AND APPOINTING A REFEREE. What questions considered — Interlocutory references. a trial, at any time before the cause has been finally submitted to the referees for their decision, in which case the referees must report according to the fact, and judgment may thereupon be perfected by the defendant. Rule 39, Sup. Ct. See Scofield v. Hernandez, 47 N. Y. (2 Sick.) 313. 1. What questions considered. Wbere the entire issues of a cause are referred to a referee to hear and determine, he may take any accounts that may be necessary to the final determination of the action. In such cases, the referee possesses the power of the court to determine the liability of a party to account, and also the power of the former master in chancery to take the ac- count. Palmer v. Palmer, 13 How. 363 : Pratt v. Stiles, 9 Abb. 150 ; S. C, 17 How. 211. The referee may announce to the par- ties his decision upon the general issues before proceeding to take the account, if the liability to account depends upon such decis- ion ; but he should proceed to take the account before making any report. Pratt v. Stiles, 9 Abb. 150 ; S. C, 17 How. 211. In Palmer v. Palmer, above cited, it was intimated that the better practice, in such cases, required the referee to make a separate report upon the general issues and the liability to account, in order that an appeal might be taken from a judgment entered upon this report, and thus obtain the decision of the court upon the point before the account is taken. The expediency of follow- ing this practice may, however, be doubted. See Pratt v. Stiles, 9 Abb. 150 ; S. C, 17 How. 211 ; McMahon v. Allen, 27 Barb. 335 ; S. C, 7 Abb. 1 ; Crosbie v. Leary, 6 Bosw. 312 ; Kapp v. Barthan, 1 E. D. Smith, 622 ; Bouton v. Bouton, 42 How. 11. Where the question of costs is in the discretion of the referee, ' he not only has the right, but it is his duty to decide it. lud- ington v. Taft, 10 Barb. 447 ; Pratt v. Stiles, 17 How. 211 ; S. C, 9 Abb. 150 ; Graves v. BlancJiard, 4 How. 300 ; S. C, 3 Code R. 25 ; Gilliland v. Campbell, 18 How. 177. But where the right to costs does not rest in the discretion of the court, but upon facts proved upon the trial, he has no right to consider or decide the question. Mersereau v. Ryerss, 12 How. 300. See Howe v. Lloyd, 9 Abb. N. S. 257 ; S. C, 2 Lans. 335 ; Tilman v. Eeane, 1 Abb. N. S. 23 ; Fuller v. Conde, 47 N. Y. (2 Sick.) 89. Section 3. Interlocutory references. a. In general. As a general rule, the course of proceedings upon an interlocutory reference is the same as upon a reference of the whole issues to a referee to hear and decide. In some REFERENCE, AND APPOINTING A REFEREE. 299 Reference of specific questions of fact. cases the old chancery practice must be followed, as it has been still retained by sections 271, 469 of the Code, and rule 97 of the supreme court. See Palmer v. Palmer, 13 How. 363 ; Ketchum v. GlarTc, 22 Barb. 319 ; Elmore v. Thomas, 7 Abb. 70. As a full discussion of interlocutory decrees and orders necessarily embraced the discussion of interlocutory references, it only re- mains in this connection to point out generally the matters peculiar to references of this nature as distinguished from those appertaining to references to hear and determine the entire issues. b. Reference of specific questions of fact. There are two dis- tinct classes of references authorized by the first subdivision of section 271 of the Code. In the first class are included all references of an entire action where directions are given to the referee to hear and decide the whole issue. The report of a referee, on a reference of this nature, stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. Code, § 272. The second class includes all references where the referee is directed to report specific questions of fact involved in the issues. "Where the reference is to report the facts, the report of the referee has all the effect of a special verdict. lb. The character and effect of the report of a referee on a specific question of fact being thus defined by the Code, it is easy to determine the nature of the powers and duty of the referee upon the reference. The Code defines a special verdict as that by which the jury find the facts only, leaving the judgment to the court. Code, § 260. A special verdict should find facts, and not the mere evi- dence of facts, so as to leave nothing for the court to determine except questions of law. Langley v. Warner, 3 N. Y. (3 Comst.) 327 ; Sisson v. Barrett, 2 N. Y. (2 Comst.) 406 ; Hill v. Qovell, 1 N. Y. (1 Comst.) 522 ; Seward v. Jackson, 8 Cow. 406. So upon a reference on a specific question of fact, the referee is to find the facts, and not the evidence of such facts ; and he is therefore bound by the same rules in regard to the admission or rejection of testimony that are applicable to trials in other cases. It must be borne in mind that the reference here dis- cussed is one in relation to questions of fact which arise upon the pleadings under subdivision 1 of section 271, and not a refer- ence as to questions of fact arising upon motion or otherwise, 300 REFERENCE, AND APPOINTING A REFEREE. Reference of specific questions of fact — To settle issues — To take proofs. other than upon the pleadings, under subdivision 3 of section 271. Where a reference is ordered under the latter subdivision, and the referee is directed to take testimony as to any question of fact and report to the court, with his opinion thereon, the referee has no power to decide any thing, but must take all the evidence offered, and leave it to the court, on the hearing of the matter, to determine what is or what is not competent. Scott v. Williams, 14 Abb. 70 ; S. C, 23 How. 393. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses must be signed by them, and the report of the referee filed with the testimony. Rule 39, Sup. Ct. c. To settle issues. In certain cases referees are appointed to settle the form of issues to be tried by a jury. In cases where the trial of issues of fact is not provided for in section 253 of the Code, if either party desires a trial by jury, such party must, 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, be tried by a jury. "With this notice of motion must be served a copy of the ques- tions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order ; and the court or judge may settle the issues, or may refer it to the referee to settle the issues. The issues must be settled in the form prescribed in section 72 of the Code. Rule 40, Sup. Ct. So in all actions for a divorce, when issue is joined by the pleadings, upon the ques- tion of adultery, such issues cannot be tried by a jury until the issues to be tried are settled in like manner as in other actions, where issues arising out of the pleadings are required to be settled. lb. The proceedings before the referee should be on notice, as in other cases. The old chancery practice, relating to such refer- ences, should be substantially followed. The details of the prac- tice are, however, discussed elsewhere. Ante, 294. d. To take proofs. On a reference to take proofs and report the opinion of the referee thereon, the referee should not attempt to decide any issue, but should simply take all the evidence offered, leaving it to the court to determine what is and what is not competent. Scott v. Williams, 14 Abb. 70 ; S. C, 23 How. 393. See "Reference of specific questions of fact," p. 299, ante. REFERENCE, AND APPOINTING A REFEREE. 301 To state accounts — On judgment by default. e. To stale accounts. The proceedings on a reference to state accounts are substantially the same as under the old chancery practice. Wiggin v. Gans, 4 Sandf. 646 ; Palmer v. Palmer, 13 How. 363 ; Ketchum v. OlarTc, 22 Barb. 319. Under the old practice, however, it was customary to examine a party upon written interrogatories, but, under the Code, this practice may be dispensed with and the examination conducted orally. This subject is fully treated in the chapter devoted to interloc- utory decrees and orders. f. On judgment by default. On an application to the court for judgment on the failure of the defendant to answer in an action not arising on contract for the recovery of money only, if the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of spe- cific real or personal property, with damages for the withhold- ing thereof, the court may order the damages to be assessed by a jury, or, if the examination of a long account be involved, by a reference. Code, § 246. The proceedings on a reference to take accounts or proofs have been already noticed. The proceedings on a reference to assess damages are substantially the same as on an ordinary trial by referees. The rules as to the admissibility of evidence are, how- ever, from the nature of the proceeding, in some respects, dis- similar. The cause of action being admitted by the default, no evidence on the part of the plaintiff is needed to substantiate the existence of a right of action, and none can be received on the part of the defendant to disprove it. Foster v. Smith, 10 Wend. 377; Be Gaillon v. E Aigle, 1 Bos. & Pull. 368; Green v. Bearne, 3 Term. R. 301. The only question for the referee to determine is the amount of damages, and that question must be considered and deter- mined by the referee, on the assumption that the plaintiff has a perfect cause of action, and that all the material averments in the complaint are admitted. lb. See Hartness v. Boyd, 5 Wend. 563 ; Kerlter v. Garter, 1 Hill, 101 ; Gilbert v. Bounds, 14 How. 46. On an inquest taken upon an application for judgment, in an action where the plaintiff's right to more than nominal damages 302 REFERENCE, AND APPOINTING A REFEREE. To compel making affidavits — To examine title. depends upon proof of facts showing the amount of injuries sustained, proof of such facts may be admissible, and the defendant may also prove any matter which properly goes in mitigation of damages. Gilbert v. Rounds, 14 How. 46 ; Bates v. Loomis, 5 Wend. 134 ; Saltus v. Kipp, 12 How. 342 ; S. C, 2 Abb. 382 ; 5 Duer, 646. The assessment of damages in actions of this nature would, however, more properly, be made by a sheriff's jury than by a referee, as they could hardly be said to involve the examination of a long account. g. To compel making affidavits. When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such per- son. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue ; and the fees of such referee for such service shall be $3 per day. Code, § 401, subd. 7. See Motions, Orders and Papers. The proceedings on a reference of this nature are sufficiently- indicated in the section of the Code above cited. If the party- subpoenaed to make the affidavit persists in his refusal, on the hearing before the referee, he may be committed for contempt, as on a refusal to testify upon a trial of the issues of an action under section 272. 7i. To examine title. In an action for a partition, where the rights and interests of the several parties, as stated in the com- plaint, are not denied or controverted, if any of the defendants are infants, or absentees, or unknown, the plaintiff, on an affi- davit of the fact, and notice to such of the parties as have appeared, may apply at a special term for an order of reference, to take proof of the plaintiff's title and interest in the premises ; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. Rule 79, Sup. Ct. So where the referee is further instructed, under the provisions of rule 80, to make inquiries as to the relative merits of an actual partition of the premises, or a sale of the same, and he arrives at the conclusion that a sale is necessary, he may proceed to ascertain and report whether any creditor not a party to the suit has a specific lien, by mortgage, devise, or otherwise, upon REFERENCE, AND APPOINTING A REFEREE. 303 To examine title — To hear claims. the undivided share or interest of any of the parties in that por- tion of the premises which it is necessary to sell; and if he finds that there is no such specific lien in favor of any person not a party to the suit, he may further inquire and report whether the undivided share, or interest of any of the parties in the premises, is subject to a general lien or incumbrance, by judg- ment or decree ; and also ascertain and report the amount due to any party to the suit who- has either a general or specific lien on the premises to be sold, or any part thereof, etc. A reference as to title is often necessary also in actions for the specific performance of a contract for the sale of lands. The proceedings on a reference in an action for partition are special, and are clearly pointed out by the statutes, the rules of court, and the rules of the old court of chancery. These proceedings will be fully discussed in the chapter devoted to interlocutory decrees and orders, and also in connec- tion with the general practice in actions for partition, specific performance, etc. It may be briefly stated, however, that the proofs of title pro- duced before the referee are usually furnished by the party con- ducting the reference, in the form of abstracts, certificates of search, deeds, etc. ; and the referee may summon witnesses and examine them as to deaths, intestacy, descent, and such other facts as may be necessary to determine the title, in the same manner as in other cases of reference. i. To hear claims. References to hear claims are not unfre- quent in actions of foreclosure and in creditors' suits. Where a reference is ordered for the purpose of hearing claims to the fund in court in a creditor's action, the order usually directs the credi- tors or persons to come in before the referee and establish their claims. If the claim of a creditor is not stated or referred to in the pleadings or proofs in the .cause, he must present the particu- lars thereof to the referee, accompanied by an affidavit that the amount claimed is justly due, as set forth in the bill of particu- lars ; and that neither the claimant nor any person by his order, or to his knowledge or belief, for his use, has received the amount thus claimed, or any part thereof, or any security or satisfaction whatsoever for the same or any part thereof. Morris v. Mowatt, 4 Paige, 142. The object of this affidavit is not to prove the claim, but to guard against fictitious claims which the party presenting does 304 REFERENCE, AND APPOINTING A REFEREE. To make inquiries — Miscellaneous cases — The report. not' regard as founded in justice, although he may be able to produce documentary or other evidence in their support suffi- cient to show a prima facie case of indebtedness. If the claim is contested by any person having a right to contest the same, it must be supported by legal proof, and the referee may examine the claimant on oath as to his claim, or any payments or set-offs which ought in equity to be allowed on account of the same. lb. Upon a reference to ascertion the rights of parties to the surplus moneys upon a mortgage sale, the proceedings are similar to those just described. See Hulbert v. McKay, 8 Paige, 651 ; Rule 77, Sup. Ct. These proceedings will be further discussed elsewhere. See Creditor's Suits, Actions for Foreclosure, etc. j. To make inquiries. References are frequently ordered to make inquiries. These inquiries may be as to persons or as to facts, titles, liens, etc. Where the reference is to make inquiries as to persons, the mode in which the inquiries are to be pros- ecuted are usually specified in the interlocutory or decretal order. When the reference is directed as to facts, titles, liens, etc., the referee should follow the general course of procedure heretofore specified. See ante, p. 294. See, also; Interlocutory Decrees and Orders. ~k. Miscellaneous cases. It would be idle to attempt to enu- merate the various cases in which a reference may be ordered, or to attempt to point out the practice in every case of reference. The practice already pointed out will, in a general way, cover nearly every case in which a reference may be ordered, and in connection with the general directions contained in the order of reference, will sufficiently indicate the character of the proceed- ings before the referee. As to the proceedings on a reference to obtain a divorce. See Divorce; see, also, Rules 87, 89, 91 of Sup. Ct. For mode of proceeding on a sale by referee, see Foreclosure ; see, also, Rules, 73-76, 81. For the practice on a reference in an action for partition, see Partition ; see, also, Rules 79-81. Section i. The report. a. In general. A referee having heard the parties, their wit- nesses and counsel, in respect to the matters submitted to him for adjudication, and having reached a conclusion in his own mind in respect to the questions of law or fact arising thereon, REFERENCE, AND APPOINTING A REFEREE. 305 The report — Form and contents. should next proceed to embody such conclusions in a document in writing, which, under the Code, is termed a report. The term, " certificate," is almost unknown, as applied to a writing embodying the conclusions of a referee in respect to the merits of the questions submitted to him to determine. If em- ployed at all under the present practice, to designate any writ- ten decision of a referee, the term is confined and applied to such writings only as are intended to convey to the court infor- mation in respect to some single act of the referee, generally of a ministerial nature, and relating to some question of practice. A referee may, in the trial of a cause, require the aid of the court, to enforce some proceeding which he has' not the author- ity to compel, and which the court will direct, as of course. In such case a written statement of the fact that such action on the part of the court is necessary, given over the signature of the referee, is termed a certificate. How far such statement differs from what is known under the Code as a report, may be seen from the requirements of the Code and rules of court as to the form and contents of a referee's report. b. Form and contents. The general rules as to the form of a report by a referee are declared by the Code and by the rules of the supreme court. Both require that upon a trial by referees they shall, in their decision and final report, state the facts found by them, and their conclusions of law separately. Rule 39, Sup. Ct; Code, §272. It is a matter of right with either party to have separate find- ings of fact and conclusions of law inserted by the referee in his report. This right is secured by statute, and is substantial, inas- much as these findings and conclusions enable the successful party to determine whether or not to appeal ; and in case he desires to appeal, they are indispensable to enable him to frame and serve his exceptions in due time, and to present the case in proper form for review. Van Slyke v. Hyatt, 46 N. Y. (1 Sick.) 259 ; Tilman v. Keane, 1 Abb. N. S. 23 ; Rogers v. Beard, 20 How. 282. The report should contain a sufficient statement of facts to form a basis for the conclusions of law, and to substan- tially show the disposition made by the referee of the specific issues in the cause, or of such of them as are embraced in his determination. A mere general conclusion of indebtedness or no indebtedness, is not a sufficient compliance with the provis- ions of the Code, and serves none of the purposes for which it Vol. III.— 39 306 REFERENCE, AND APPOINTING A REFEREE. The report — Form and contents. was intended. Van Slylce v. Hyatt, 46 N. Y. (1 Sick.) 259. The decisions in the court of appeals holding that the report of a referee, or the decision of a judge, where the trial is by the court, for the purpose of authorizing the judgment and forming a part of the record, need only state in general terms what the judgment is to be, without any finding of facts, or statement of the conclusion of law, must be considered as overruled. Tan SlyJce v. Hyatt, 46 N. Y. (1 Sick.) 259 ; Manley v. Insurance Co. of North America, 1 Lans. 20, 23. See Johnson v. WhitlocJc, 13 N. Y. (3 Kern.) 344 ; S. C, 12 How. 571 ; Otis v. Spencer, 16 N. Y. (2 Smith) 610 ; S. C, 15 How. 425 ; 6 Abb. 127. Thus, in an action for work and labor, where the double de- fense is interposed that the work and labor was done upon a special contract which was not performed, and also that the defendants suffered damage from the non-fulfillment of the con- tract, which they claim to recoup, the referee should find dis- tinctly what the contract between the parties was, if there was a special contract, and if there was no special contract he should find what contract should be implied from the acts and declara- tions of the parties, and then should find whether the plaintiff performed such a contract, and if he did not perform it, whether performance was accepted or waived, so as to entitle the plaintiff to recover the price, and whether there was or was not such a breach of the contract on the part of the plaintiff as to let in the defendant's recoupment. Rogers v. Beard, 20 How. 282. It is not sufficient in such case that the referee finds that the work was done for a price agreed upon by the parties, and finds for the plaintiff for such price generally, but does not find, except inferentially, what the contract in fact was, or whether it was performed by the plaintiff and does not find upon what ground the defense was overruled. Rogers v. Beard, 20 How. 282. But a referee is not required to find upon any other facts than those which enter into and form the basis of the judgment to be entered upon his report. He is not required to negative in express terms any other facts. Facts not found are necessarily negatived by implication. Vermont v. Baetjer, 49 Barb. 362 ; Nelson v. Ingersoll, 27 How. 1 ; McAndrew v. WJiitloch 2 Sweeny, 623; Perine v. HotchMss, 2 Lans. 416; Manley v. Insurance Go. of North America, 1 Lans. 20 ; Patterson v. Graves, 11 How. 91 ; Ingraham v. Gilbert, 20 Barb. 151. Neither is the referee obliged to notice in his report issues raised by the REFERENCE, AND APPOINTING A REFEREE. 307 The report — When to be made. pleadings but upon which no evidence is given upon the trial. lb. So where a fact litigated upon the hearing is material only as a link in the chain of evidence, but is immaterial to the issues as an independent proposition, the referee is not required to report his conclusions in respect to the existence of that fact, but should simply report upon the issues. Wiltsie v. Eaddie, 4 Abb. N. S. 393. A referee is required to report upon the issues only, and not upon the evidence ; and having reported his conclusions as to a fact, he is not called upon to find or explain the means and processes by which he arrived at such conclusions. lb. ; Patter- son v. Graves, 11 How. 91 ; Dorr v. JVoxon, 5 id. 29. The findings of fact by the referee should be direct, positive and explicit. A report is clearly insufficient which refers argu- mentatively and in a general way to the conclusions of law and fact at which the referee arrived, but fails to state directly what facts were found by him. Mills v. TTiursby, 12 How. 417. c. When to be made. The Code requires the referee or referees to make and deliver a report within sixty days from the time the action shall be finally submitted, and that 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 there- upon the action shall proceed as though no reference had been ordered, and the referees shall not in such case be entitled to any fees. Code, § 273. The object of this provision of the Code is to expedite decisions in referred cases and to enable either party to enforce promptness. It was not, however, intended to take away from parties the control of the practice in their own suits, nor to prohibit them from extending the time for making and delivering the report. And, although the Code declares that the report shall be made and delivered in sixty days, the parties may neverthe- less extend such time by a written consent, or by oral agreement at the hearing, and this consent, so given, may be enforced. Livingston v. Gidney, 25 How. 1. As this provision of the statute was enacted for the benefit of the parties,, the privileges conferred by it may be waived in the same manner as privileges conferred by other statutes having a similar object. Thus, if the referee fails to report within the sixty days allowed by statute, but makes and delivers his report thereafter, and before either party has in any way signified his intention to proceed with the tri^l as though no reference had been had, the parties will be deemed to have waived all objection 308 REFERENCE, AND APPOINTING A REFEREE. The report — When to be made. to the failure to report within the statutory time, and also their right to proceed in the action as if no reference had been ordered. The statute contemplates that some step shall be taken in the cause after the expiration of the sixty days, indicating an inten- tion to disaffirm the right of the referee to make and deliver his report. Mantles v. Myle, 26 How. 409 ; Livingston v. Gidney, 25 id. 1 ; Foster v. Bryan, 26 id. 164 ; S. C, 16 Abb. 396. The same rule applies where the parties have, by stipulation, extended the time within which the report may be made, and the referee has made and delivered his report after the expiration of the time mentioned in the stipulation, but before either party has signified his intention to disregard the reference and proceed to trial. TMesselin v. Mossett, 3 Abb. N. S. 54. The parties may by stipulation extend the time within which the referee may make his report, but they cannot by stipulation limit the time so extended. The effect of extending the time to report is to waive the privilege of either party to elect to terminate the reference by the service of a notice upon the other. lb. Where one of the parties to a reference, by stipulation or any other act, induces the referee to delay the making and delivering of his report beyond the sixty days, and, during the delay so caused by himself, proceeds with the action as if no reference had been ordered, the court may, on motion, for the purpose of preventing such procedure, allow the report to be made and delivered after the expiration of the sixty days. But where there has been no act of the party to delay the referee, and no order within the sixty days for further time, or notice given within that time of a motion for such order, it is the duty of the referee to deliver his report within that time, and, if he fails to do so, either party may elect to end the reference, and the intent to do so hav- ing been shown, the court has no power to continue the reference by an order allowing the referee further time to make and deliver his report. Mies v. Maynard, 28 How. 390. See Litch v. Brotherson, 16 Abb. 384 ; S. C, 25 How. 407. The rule, that a referee must make and deliver his report within sixty days from the time the action shall be finally submitted to him, does not apply to a referee to whom a claim against the estate of a deceased person has been referred, under the statute, with the approval of the surrogate. Section 273 of the Code applies only to references of issues in actions commenced as pre- scribed by the Code. Godding v. Porter, 17 Abb. 374. REFERENCE, AND APPOINTING A REFEREE. 309 Compelling report — Report, how agreed on. d. Compelling report. By providing that a referee snail for- feit his fees unless he shall make and deliver his report within sixty days from the time the action was finally submitted to him, the Code has rendered almost unnecessary any mode of proceed- ing to compel a referee to report. But, in cases where the neces- sity exists, the delivery of the report may be compelled by an order of the court, that the referee report within a specified time, or in default thereof an attachment issue. Thompson v. Parker, 3 Johns. 260 ; Stafford v. HesJceth, 1 Wend. 71. Where the parties have waived their right to elect to end the reference by stipulating to extend the time within which the report may be made, this is the only remedy if the referee un- necessarily delays to report. Thiesselin v. Rossett, 3 Abb. N. S. 54. e. Report, how agreed on. When an action is referred to sev- eral referees, and the cause has been submitted to them for their decision, any two of them may make a report in the case. 2K.S. 384 (399), § 46. But while two of three referees may make a valid report, they must proceed to do so in a regular manner. Thus, all the referees must have notice of the meeting to frame the report. Brower v. Kingsley, 1 Johns. Cas. 334. And there must be a conference of all, and a substantial conclusion by a majority, embodied in a report made by them when they are together. Townsend v. Glen's Falls Ins. Co., 10 Abb. N. S. 277. See Harris v. Norton, 7 Wend. 534 ; M'Inroy v. Benedict, 11 Johns. 402. And after the hearing of the cause before three referees, and a consultation in which a majority fail to agree upon a conclusion or any findings, two of them cannot make a report by signing- separately their conclusions, nor can two, upon a conference, agree to a conclusion, and make a report without a conference of all. Townsend v. Glen's Falls Ins. Co., 10 Abb. N. S. 277. But where, upon a conference of all, a report is agreed upon by two of three referees, and the third agrees to dissent from their conclusion, the report will be valid, although not signed by the two who agree, until the next day, and in the absence of the third. Clark v. Frazer, 1 How. 98. /. Report upon all the issues. The contents of a report upon all the issues and the general rules relating to its form, have been discussed in subdivision b of this section. See ante, p. 305. 310 REFERENCE, AND APPOINTING A REFEREE. General form of the report on all the issues — Report in action for divorce. General form of report on all the issues. {Title of cause.) To the court of The undersigned, appointed by this court a referee to hear and determine this action and the issues therein, having duly- considered the allegations and proofs of the parties, and having heard , for the plaintiff, and , for the defendant, reports to the court as follows : I find, as matters of fact : I. That, etc. II. That, etc. I find, as matters of law : I. That, etc. II. That there is due to the plaintiff from the defendant the sum of dollars, with interest from the day of , 18 , being dollars, which amount to dollars ; for which said plaintiff is entitled to judgment in this action against the said defendant, besides- costs. {Or, if the defendant is entitled to judgment.) III. That the defendant is not indebted to the plaintiff, as alleged in this action, and that the defendant is entitled to judg- ment against said plaintiff for his costs. {Date.) {Signature) Report in action for divorce {for plaintiff .) {Commencement as in preceding form.) I find, as conclusions of fact : I. That, on the day of , 18 , the plaintiff inter- married with the defendant at , in the State of II. That, thereafter, and until about the day of , 18 , the plaintiff continued to live with the defendant as his wife. III. That, during such time, they had children, issue of said marriage, namely : {give names and ages.) IV. That both husband and wife were, at the time of the com- mission of the several acts of adultery hereinafter mentioned, inhabitants of this State. (Or, if the marriage was within this State) That the plaintiff, at the time of the commission of the several acts of adultery hereinafter mentioned, was, and now is, an actual inhabitant of this State. {Or if the adultery was com- mitted in this State) That the plaintiff, at the time of commenc- ing this action and filing her complaint, was an actual inhabitant of this State. V. That, in the month of , 18 , at , the defend- ant committed adultery with one VI. That the said adultery was committed without the con- sent, connivance, privity or procurement of the plaintiff. REFERENCE, AND APPOINTING A REFEREE. 311 Report in actions for divorce — For plaintiff — For defendant. VII. That five years have not elapsed since the plaintiff dis- covered the fact of such adultery. VIII. That the plaintiff has not voluntarily cohabited with the defendant since the discovery by her of such adultery. IX. That the defendant is a man of property, being worth, in real and personal estate, dollars, of which the clear income is about dollars, and receives, also, an income from the practice of his profession as a X. That the plaintiff has both real and personal property to the value of . dollars, which she acquired by I find as conclusions of law : I. That a divorce should be decreed in favor of the plaintiff dissolving said marriage for the adultery so committed by the defendant. II. That the defendant should pay to the plaintiff the sum of dollars each year from the date of the judgment herein, in equal quarterly payments, for the support and maintenance of the plaintiff, and of the children, and the education of the latter ; fiving security therefor by a mortgage on his estate, at , nown as III. That the plaintiff have the care and custody of said children. IV. That the plaintiff is entitled to said property which she now has, as her sole and absolute property. V- That the defendant pay the costs of this action to be taxed, and the plaintiff to have judgment therefor. (Signature.) (Date.) Report in action for divorce (for defendant). (Commencement and statement of facts as in preceding form to V.) V. That the plaintiff has failed to prove any of the acts of adultery charged in the complaint herein. I find as conclusions of law : I. That the defendant is not guilty of any of the acts of adultery charged in the complaint. II. That all of the aforesaid children are the issue of said marriage, and the legitimate children of the plaintiff and defendant. III. That the complaint should be dismissed (with costs). (Signature.) (Date.) g. Report on particular questions. Upon a reference to examine and report as to the existence or non-existence of a fact, or as to any other matter, it is the duty of the referee to draw the conclusion from the evidence produced before him, and to 312 REFERENCE, AND APPOINTING A REFEREE. Report on questions of alimony and expenses in an action against a wife, etc. report that conclusion only. It is irregular and improper for him to set forth the evidence in his report without special direc- tion of the court. In the Matter of Hemiup, 3 Paige, 305. It is provided by a rule of the court, that in references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony. Rule 39, Sup. Ct. The report of a referee on a reference of this nature should be confined to the questions referred, leaving all other questions to be determined by the proper tribunal. See Herforthv. Herforth, 2 Abb. N. S. 483. Report on question of alimony and expenses in an action against a wife for a divorce. {Title of cause.) To the supreme court of the State of New YorJc : In pursuance of an order of this court, dated the day of , 18 , whereby it was referred to me, the undersigned, as referee, to inquire and report a reasonable sum to be allowed to the defendant, in this action, for her support and mainte- nance, and that of her children residing with her, and a reason- able sum to carry on her defense and to defray costs and expenses thereof, and also as to the times and manner in which such sums should be paid, I, the said referee, do report : I. That I have been attended by the attorneys for the plaintiff and defendant ; and having heard the allegations and proofs as to the value of the plaintiff's estate at the time of the commence- ment of this action, and the allowances proper to be made, do also report, that the real property of the plaintiff consisted, at such time, of , the whole value being estimated at That the whole personal property of the said plaintiff consists of , and its value is about II. I also report that two children of the plaintiff and defend- ant live with and are entirely supported by the defendant, namely : , a boy aged years ; and , a girl aged years. III. And I find and report that in my opinion the sum of dollars a year, payable quarterly, is a suitable allowance for the present separate maintenance and alimony of the defendant ; and that it ought to be payable from the day of , 18 , being the date of the said order of reference. And I report that dollars would be a reasonable sum to be allowed to the defendant to enable her to carry on her defense and defray the necessary costs and expenses of this action. {Bate.) {Signature.) REFERENCE, AND APPOINTING A REFEREE. 313 Report on title — Delivery — Alteration and amendment. h. Report on title. Where a reference is ordered as to title, the referee should report whether the title is good or not, and if he decides that the title is not good he should state the precise points wherein it is defective. Green v. Monks, 2 Molloy, 325. When the referee finds that the title is good and was always so, a general report to that effect is sufficient ; but where the title was formerly defective but has been made good but a short time previous to the reference, the referee should report when the title became perfect, if it is within the scope of the matters sub- mitted to him. See Hyde v. Wroughton, 3 Madd. 279 ; Anony- mous, id. 495. If the only defect in the title is an outstanding mortgage, the referee should report that upon payment of the mortgage a good title could be made. Esdaile v. Stephenson, 6 Madd. 366. i. Delivery. The referee having signed his report should next deliver it to the successful party in order that he may enter up judgment thereon. Richards v. Allen, 11 N. Y. Leg. Obs. 159. No other party is entitled to the report. lb. And it is improper for the referee to deliver to the parties two documents, each of which purports to be the original of his report, even if they are duplicates. Currie v. Cowles, 7 Rob. 3. v A referee has a right to the payment of his fees before the delivery of his report, and if any dispute arises as to the amount, the question may be settled by requiring the referee to have the amount taxed. See Richmond v. Hamilton, 9 Abb. 71, note ; Richards v. Allen. 11 N. Y. Leg. Obs. 159 ; Shultz v. Whitney, 9 Abb. 71 ; S. C, 17 How. 471. If the successful party neglects or refuses to take up the report when requested to do so, the adverse party may procure an order from the court directing the prevailing party to take up the report and enter judgment, or that in default thereof the adverse party may do so. Richmond v. Hamilton, 9 Abb. 71, note. In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the report of the referee must be filed with the testimony and a note of the day of the filing must be entered by the clerk in the proper book under the title of the cause or proceeding. Rule 39, Sup. Ct. j. Alteration and amendment. After the report has been signed and the successful party notified of that fact, the power of the referee is determined and he cannot afterward amend or Vol. III.— 40 314 REFERENCE, AND APPOINTING A REFEREE. Conclusiveness — Construction. alter it in any respect. Shearman v. Justice, 22 How. 241 ; Ayrault v. Sackett, 17 id. 507 ; S. 0., 9 Abb. 154, note ; Mies v. Price, 23 How. 473 ; VoorMs v. VoorMs, 50 Barb. 119 ; Nelson v. Ingersoll, 27 How. 1. See p. 288, ante. 7c. Conclusiveness. As a general rnle, the report of a referee, like the verdict rendered by a jury, is conclusive upon all ques- tions of fact upon which there has been conflicting evidence. WatTcins v. Stevens, 3 How. 28 ; Van Ness v. Bush, 22 id. 481 ; S. C, 14 Abb. 33 ; Monell v. Marshall, 25 How. 425 ; Dows v. Montgomery, 5 Rob. 445 ; Hoogland v. Wight, 20 How. 70 ; S. C, 7 Bosw. 394 ; Sinclair v. Tallmadge, 35 Barb. 602. A report of a referee will be set aside only where the findings are clearly against the weight of evidence, or where, upon the trial, some rule of evidence or principle of law has been violated, lb. So much depends on the appearance and conduct of the wit- ness, that it is never safe to interfere with a finding on a question of fact unless it is so flagrantly unjust as to show partiality, cor- ruption or incompetency on the part of the referee. Howell v. Bid- dlecom, 62 Barb. 131. A referee has a right to find a witness mis- taken, and if there is a contradiction between him and another, to decide the question of fact contrary to his statement. But he cannot judicially deem an uncontradicted witness testifying against the party calling him, false and perjured, and so holding to infer the truth of the matter to be the reverse of what was testified. Fordham v. Smith, 46 N. Y. (1 Sick.) 683. A judg- ment entered upon the report of a referee will be reversed when it is entirely and clearly against the evidence. Butler v. Truslow, 55 Barb. 293. I. Construction. Where the facts which constitute a transac- tion are stated in detail in a referee' s report, his finding as to their effect is a conclusion of law. HotchTciss v. Mosher, 48 N. Y. (3 Sick.) 478. In construing and reviewing the report of a referee, the whole report should 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 judgment rendered upon it will be sustained. VoorMs v. VoorMs, 50 Barb. 119. A finding by a referee, that an assignor for the benefit of his creditors had no actual design to defraud his creditors by making the assignment, will be construed as a finding that the assignment was made in good faith and without an intent to defraud credit- REFERENCE. AND APPOINTING A REFEREE. 315 Confirmation — Referee's fees. ors. Casey v. Janes, 37 N. Y. (10 Tiff.) 608; S. C., 5 Trans. App. 327. The general conclusion of the referee is to be construed as in- volving a finding upon all the material questions, though not expressed in terms. Grant v. Morse, 22 N. Y. (8 Smith) 323. If the findings of a referee are ambiguous, that, construction will be adopted which will sustain the judgment, rather than that which will lead to a reversal. 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. Hill v. Grant, 46 N. Y. (1 Sick.) 496. to. Confirmation. The Code declares that the report of a referee upon the whole issues shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. Code, § 272. Upon a reference of this nature, it is regular to file the report and enter judgment without any further application to the court. Bouton v. Bouton, 42 How. 11; Currie v. Oowles, 7 Rob. 3. Neither is it necessary, under the present rules of court, to move for a confirmation of the report of a referee on a reference other than one for the trial of the issues. Where no exceptions are filed and served within eight days after the service of a notice of the filing of the report, the report will become absolute, and stand in all things confirmed without any special order of the court. See Rule 39, Sup. Ct. Where the confirmation of a report is necessary, a party cannot obtain a vested right therein until it is confirmed and judgment entered thereon. Matter of Widening Broadway, 61 Barb. 483 ; Lewenthal v. Mayor, etc., of New York, 61 id. 511 ; Matter of Palmer, 40 N. Y. (1 Hand) 561. n. Referee's fees. In the absence of any agreement between the parties, a referee is entitled to $3 per day for every day spent in the business of the reference. Code, § 313. The parties may, however, agree in writing upon any other rate of compeUsation. lb. Or if the parties enter into a verbal agreement at the hear- ing, fixing upon a compensation other than that allowed by statute, and this agreement is entered by the referee in his minutes, this will be in effect an agreement in writing, within the meaning of the statute, and the referee will be entitled to the rate of compensation so agreed upon. Philbin v. Patrick, 22 How. 1. So where the parties on a reference come before the 316 REFERENCE, AND APPOINTING A REFEREE. Referee's fees. referee, and agree orally that the referee may charge whatever he deems his services worth, they will be estopped by this agree- ment from objecting that the amount charged is in excess of the rate allowed by statute where no agreement has been entered into in writing. In cases of this nature a written agreement is waived. Thurman v. FisTce, 30 How. 397. The referee may compel the payment of his fees by withhold- ing his report until his claims are paid by the successful party. He has the same lien upon the report for his fees that a coun- selor has upon his written opinion. Ott v. Schroeppel, 3 Barb. 56. If the party deems the referee's claim for fees excessive he should require the referee to have the amount taxed by the clerk. Richmond v. Hamilton, 9 Abb. 71, note. The clerk is required by the Code to insert in the entry of judgment, on the applica- tion of the prevailing party, and upon due notice to the other, the sum of the allowances for costs as provided by the Code, and the necessary disbursements, including the fees of referees. Code, § 311. These disbursements must be stated in detail and verified by affidavit, and a copy of the items composing the costs and disbursements must be served with the notice of adjustment. lb. When the sum claimed by the referee is objected to, and no writing is produced agreeing upon any particular compensation, the allowance cannot exceed $3 for each day spent in the business of the reference ; and if the time actually spent by the referee is disputed, the amount of time devoted to the reference must be shown affirmatively by affidavit or other equally competent proof. Slmllz v. Whitney, 17 How. 471 ; S. C, 9 Abb. 71. A referee is entitled to no fees for services performed by proxy. lb. In the absence of any waiver by the parties of the right to re- quire a delivery of the report within sixty days from the time of the final submission of the cause, the referee will forfeit his fees by not signing and delivering his report within that time. Foster v. Bryan, 26 How. 164; S. C, 16 Abb. 396; Mies v. Maynard, 28 How. 390. But where the parties have by stipula- tion left the time of delivering the report discretionary with the referee, the rule as to a forfeiture does not apply, and on the adjustment of costs and disbursements, the clerk may allow the referee the amount of fees to which he is entitled, notwithstand- ing the fact that the report was delivered after the expiration of sixty days. Foster v. Bryan, 26 How. 164 ; S. C, 16 Abb. 396. REFERENCE, AND APPOINTING A REFEREE. 317 Assigning report — Exceptions to report. An attorney, in a cause tried by a referee, is not liable for the fees of the referee. Howell v. Kinney, 1 How. 105 ; Judson v. Gray, 11 N. Y. (1 Kern.) 408. Nor can the referee compel the payment of his fees by the attorney by attachment, even where the latter has received money belonging to his client which is sufficient for that purpose. Lamoreux v. Morris, 4 How. 245. The fees of referees in sales in partition cases, in the city and county of New York, have been fixed by statute. Laws of 1869, ch. 569, § 4. This act has, however, been declared unconstitu- tional. OasMn v. Meek, 42 N. Y. (3 Hand) 186; S. C, 8 Abb. N. S. 312. o. Assigning report. The party in whose favor a report of a referee has been made may make a valid assignment of the report, with all his interest therein ; and the assignee may there- upon cause himself to be substituted in the place of the original party, and enter up judgment in his own name. The judgment so entered may be enforced against the judgment debtor, and any judgment which such debtor may obtain against the assignor subsequent to the assignment cannot be set off against it. Roberts v. Garter, 17 How. 341 ; S. C, 9 Abb. 366, note ; affirmed, 38 N. Y. (11 Tiff.) 107 ; 6 Trans. App. 253 ; 35 How. 642, note. Section 5. Exceptions to report. a. In general. Whenever a party to a reference deems that injustice has been done him by the decision of the referee, as embodied in his report, he should at once take the necessary steps to procure a review of the report, or so much as he deems objectionable. The proper steps to procure a review of the report of a referee are prescribed by the Code and the rules of court. These proceedings will be fully noticed hereafter. See section 8, "Reviewing report," p. 324, post. In this connection it will be sufficient to point out the mode of taking the initiatory steps toward a review, by way of exception to the report. It must be borne in mind that there are two classes of excep- tions authorized by the Code. In the one class are exceptions to the rulings of the referee upon the hearing, as to the admis- sion or the rejection of evidence, and questions of a kindred char- acter. All exceptions of this class must have been taken at the time the rulings were made, or the right to except will have been waived. Belmont v. Smith, 1 Duer, 675; S. C, 11 N. Y. Leg. Obs. 216 ; Brewer v. Isish, 12 How. 481 ; Hunt v. Bloomer, 13 318 REFERENCE, AND APPOINTING A REFEREE. Exceptions to report. N. Y. (3 Kern.) 341 ; S. C, 12 How. 567. See Johnson v. Whit- lock, 13 N. Y. (3 Kern.) 344 ; S. C., 12 How. 571. In the other class are exceptions which could not have been taken on the trial, and which section 268 of the Code allows to be taken within ten days after notice in writing of the judgment. This class includes all exceptions to the legal conclusion of the referee arising upon the facts found by him in his report, or, in the phraseology of the Code, "to a decision on a matter of law arising on the trial." It is the latter class of exceptions which will be considered in this section, and it must be distinctly understood that, in treating of exceptions to the report of a referee, no reference is made to the exceptions to the rulings of the referee on the trial, in respect to admitting or excluding evi- dence. It is only rulings contained in the written decision of the referee that can, for the first time, be made the subject of exception after judgment, and such exceptions are allowed only because there was no opportunity to make them on the trial. Johnson v. WMtlock, 13 N. Y. (3 Kern.) 344; S. C, 12 How. 571. The exceptions which may be made after judgment are those, and those only, which, under the former system of practice, were made to the rulings of the court after the evidence was closed and before the jury retired. Hunt v. Bloomer, 13 N. Y. (3 Kern.) 341 ; S. C, 12 How. 567. But since, on a trial by a referee, the referee assumes the double office of court and jury, and has no occasion to rule upon the effect of the evidence given upon the hearing, until he makes his final decision, in the form of a report, it is obvious that on the hearing the parties have no oppor- tunity to except to the legal conclusions of the referee. For this class of cases the framers of the Code have attempted to provide, by declaring that, upon the trial of a question of fact by the court or a referee, either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury. Code, § 268 ; Tremain v. Ryder, 13 How. 148. Exceptions to a referee' s findings of facts are idle and of no avail, as the remedy is by another mode of procedure, which will be explained hereafter. See Lefler v. Field, 50 Barb. 407 ; Russell v. Duflon, 4 Lans. 399. But exceptions to the conclu- sions of law stated in a referee's report are indispensable to raise any questions for review. Weed v. New York & Harlem R. R- REFERENCE, AND APPOINTING A REFEREE. 319 Who may except — When to except — How to except. Co., 29 N. Y. (2 Tiff.) 616 ; Enos v. Eigenbrodt, 32 N. Y. (5 Tiff.) 444 ; Russell v. Dujlon, 4 Lans. 399. b. Who may except. Exceptions to the report of a referee on an interlocutory reference, or on a reference of the whole issues, may be taken by any party to the suit who is interested in the matter in controversy. Where there are several sets of parties appearing by different attorneys, they may each take exceptions to the same points, although their grounds of exception are the same. On a reference as to claims, etc., creditors who have estab- lished their claims before the referee may except to the report, although they are not parties to the suit, and so, also, may cred- itors who have preferred claims which have been rejected. Under the old practice, it was necessary to first obtain permission of the court, which would be granted on motion as of course, Persons claiming as next of kin, whose claims have been dis- allowed by the referee, may also except. So may a purchaser under a decree of sale. c. When to except. All exceptions to a report of a referee upon the whole issue must be made and served upon the opposite party within ten days after written notice of the filing of the report. Rule 41, Sup. Ct. ; Code, § 268. Exceptions to a report, other than upon the issues, must be taken within eight days after the service of the notice of the fil- ing of the report. Rule 39, Sup. Ct. Under the provisions of section 174 of the Code, the court has power to allow exceptions to be filed, or a case served, after the time prescribed therefor has expired. Strong v. Hardenburgh, 25 How. 438 ; Sheldon v. Wood, 14 id. 18 ; S. C., 6 Duer, 679 ; Bortle v. Mellen, 14 Abb. 228. But a judge at chambers has no power to extend the time to make a case or to serve exceptions after the ten days have expired. That power is vested only in the court. Sheldon v. Wood, 14 How. 18 ; S. C, 6 Duer, 679 ; Doty v. Brown, 3 How. 375. d. How to except. Exceptions must be properly taken in order to be available. A mere general exception to a conclusion of law is not sufficient. Exceptions must be specific, and not general. An exception to a referee's " conclusions of law, and to each and every part thereof," is so general, as to hardly raise any question of law whatever, and at most can only raise the question whether any of the conclusions of law are justified by the facts found. 320 REFERENCE, AND APPOINTING A REFEREE. Form of exception to report — Serving and filing exceptions. Defer v. Field, 50 Barb. 407. So an exception to that part of a decision which allows a specified snm as interest is only a gen- eral exception to the allowance of any interest whatever, and will not raise the question that interest has been allowed from too early a date. To raise this question, the exception should specifically point out the error in the allowance of interest, in order that the prevailing party may remit the excess. McMahon v. New TorJc & Brie Railroad Co., 20 N. Y. (6 Smith) 463; Graham v. Chrystal, 1 Abb. N. S. 121 ; S. C, 32 How. 287 ; S. C. affirmed, 2 Keyes, 21; Matthews v. Duryee, 4 id. 525; Sipperly v. Stewart, 50 Barb. 62. Form of exception to report. {Title of cause.) The plaintiff {or defendant) excepts to the report of A. B., Esq., referee herein, dated the day of , 18 . I. For that said referee reported that, etc. II. For that said {etc., as above, taking a separate exception for each separate objection). {Signature) (Date.) {Direction.) e. Serving and filing exceptions. The Code provides that, for the purposes of an appeal, either party may except to a decis- ion on a matter of law arising upon such trial within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury. Code, § 268. The object of serving exceptions to the report, as has been already explained, is to notify the adverse party of the precise grounds of objection to the report, and the general scope of the argument on appeal. These exceptions must be served within the ten days allowed by the statute, unless the time for service has been extended by an order of the court. Johnson v. W kitloclc, 12 How. 571 ; S. C, 13 N. Y. (3 Kern.) 344. This time may be extended by the court at special term, even after the time of excepting has expired, or by a judge at cham- bers, if before the expiration of the ten days allowed by stat- ute. Sheldon v. Wood, 14 How. 18 ; S. C, 6 Duer, 679 ; Strong v. Hardenburgh, 25 How. 438 ; Haase v. New York Central. Bail- road Co., 14 id. 430 ; Doty v. Brown, 3 id. 375. It may also be extended by stipulation ; but the general term has no jurisdic- REFERENCE, AND APPOINTING A REFEREE. 321 Report on interlocutory reference — Form and contents — Confirmation of. tion to entertain an application of this nature. Strong v. Har- denburgh, 25 How. 438. Ordinarily, in addition to the exceptions to the report of a referee, the party desiring to appeal may wish to review decis- ions made in the course of the hearing. These exceptions, although entirely distinct from the exceptions to the report, and have no relation thereto, are, for the purposes of a review, em- bodied, in a case containing the evidence necessary to raise the point of law, and served, settled and filed, in accordance with the rules of the supreme court. When such case is prepared and served within the time allowed to except to the report, it may contain such exceptions, and there will be no occasion to file or serve them as separate matter. The service and filing of the exceptions to the report with the case will be a sufficient compliance with the statute. Johnson v. Whitlock, 12 How. 571 ; S. C, 13 N. Y. (3 Kern.) 344. Section 6. Report on interlocutory reference. a. In general. The subject of interlocutory decrees and orders, including interlocutory references, is elsewhere fully discussed, and the form,, contents and peculiarities of the report of a referee therein is stated in connection with the matters there presented. o. Form and contents. The form and contents of the report 'has also been briefly discussed in a preceding section of this chapter. See p. 311, 312, ante. e. Confirmation of. Prior to the adoption of rule 39 of the supreme court, every report which was necessary for the purpose of enabling the court to make some discretionary order or some decree thereon, whether the order directing the reference was made upon decree or upon an interlocutory application, required confirmation, before its adoption, as the foundation of such future order or decree. Griffing v. Slate, 5 How. 205 ; S. C, 3 Code R. 213. See Belmont v. Smith, 1 Duer, 675 ; S. C, 11 N. Y. Leg. Obs. 216 ; Elmore v. Thomas, 7 Abb. 70. But, under the rule as it now exists, a report on an interlocutory reference becomes absolute, and stands in all things confirmed, unless exceptions thereto are filed and served within eight days after the service of the notice of the filing of the same. Rule 39, Sup. Ct. If ex- ceptions are filed and served within that time, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. See Rule 39, Sup. Ct. Unless Vol. III.— 41 322 REFERENCE, AND APPOINTING A REFEREE. Proceedings upon report, on reference of all the issues. such exceptions are filed as provided by the rule, no special order of confirmation is necessary. The report cannot be acted upon, however, and made the foun- dation of any further proceedings until the time allowed by the rule for the filing and service of exceptions has expired, unless the parties who have appeared, and who are thereby entitled to notice of the filing of the report, by a written consent waive the delay of eight days. Should none of the defendants appear, or should such as have appeared waive the delay, the report may be presented to the court for the final order of confirmation and judgment, without waiting the prescribed time. Somers v. Mil- liken, not reported. See Voorhies' Code (6th ed.), 616. d. Subsequent proceedings. See Interlocutory Decrees, etc. Section 7. Proceedings upon report, on reference of all the issues. a. In general. The party to whom a report of a referee has been delivered should file his report and proceed to perfect judg- ment. He should next serve a copy of the report, with a notice of the judgment, on the adverse party. This service fixes the date from which the time to serve exceptions is to be computed. Rule 39, Sup. Ct. Form of notice of referee's report and of judgment. {Title of cause.) Sir : Please take notice, that the annexed is a copy of the referee's report on the issues herein; and also that judgment thereon and pursuant thereto was filed, in the office of the clerk of this court at , in , on the day of , 18 . {Address.) {Signature) b. On all the issues. If the report was made under a reference, of all the issues, it stands as a decision of the court, and judg- ment may be entered thereon in the same manner as upon such decision. Code, § 272 ; Renouil v. Harris, 1 Code R. 125 ; S. C, 2 id. 71 ; 2 Sandf. 641 ; Currie v. Cowles, 7 Rob. 3 ; Orif- fing v. Slate, 5 How. 205 ; S. C, 3 Code R. 213. No leave of court or confirmation of the report is necessary. lb. c. On specific questions. As the Code provides that where the reference is to report the facts, the report shall have the effect of a special verdict, the reference must be regarded in the light of a trial of the issues arising on the pleadings ; and after the filing of the report, and the lapse of eight days from notice thereof, it REFERENCE, AND APPOINTING A REFEREE. 323 Entry of judgment. becomes absolute and stands in all things confirmed, without any special order, unless exceptions thereto have been duly filed and served. In the latter case the exceptions may be brought to a hearing at any special term, on the notice of any party inter- ested. Rule 39, Sup. Ct. If the reference be of but one or more of the issues, leaving others still undetermined, the notice served with the copy of the report, should be to the effect that the party will bring the cause to trial, and move upon the issues so found, and the other issues to be determined by the court, for judgment. d. Entry of judgment. As has been previously stated, the Code pays the same respect to the decision of a referee to whom all the issues are referred, as it does to that of a single judge, and orders judgment to be entered upon it in the same manner. Currie v. Cowles, 7 Rob. 3 ; McMaJion -v. Allen, 27 Barb. 335 ; S. C, 7 Abb. 1 ; Code, § 272 ; Heinemann v. Waterbury, 5 Bosw. 686. Formerly it was the duty of the clerk to enter the judg- ment directed by the decision of the referee as soon as filed. lb. ; Cotes v. Smith, 29 How. 326. But by the amendment of section 267 of the Code in 1870 the clerk is required to delay the entry of judg- ment until four days have elapsed since the filing of the report. Any further delay on the part of the clerk in performing this duty will not operate to the prejudice of the prevailing party. Butler v. Lee, 33 How. 251 ; S. C, 3 Keyes, 70. iTpon the expiration of the four days immediately following the filing of the report the clerk must proceed to enter up the judgment directed by the decision of the referee. Code, §§ 267, 272. The entry of the judgment will precede the adjustment of costs, and blanks will be left for the insertion of the costs in the judgment when taxed. Cotes v. Smith, 29 How. 326 ; S. G. affirmed, 31 id. 146 ; Stimson v. Huggins, 16 Barb. 658 ; S. C, 9 How. 86 ; Oilmartin v. Smith, 4 Sandf. 684. If the prevailing party fails to furnish the judgment roll, the clerk should collect from the files the necessary papers, and attach thereto a copy of the judgment. Heinemann v. Water - bury, 5 Bosw. 686. Judgment cannot, however, be entered on the report of the referee until all the issues raised in the cause have been disposed of. McMahon v. Allen, 27 Barb. 335 ; S. C, 7 Abb. 1. Thus, when a referee makes a report, finding the issues raised in the cause in favor of the plaintiff, and reporting also that 324 REFERENCE, AND APPOINTING A REFEREE. Reviewing report — By appeal: before final judgment can be entered an accounting must be had, a judgment cannot be entered regularly before the accounting and report thereon. lb. See Judgment. Section 8. Reviewing report. a. In general. The only mode of reviewing a judgment entered upon the report of a referee appointed to hear and decide the whole issue is by appeal. Code, §§ 268, 272 ; Dana v. Howe, 13 N. Y. (3 Kern.) 306. The court has no authority at special term, on motion, to review and set aside as erroneous, a judgment ordered by a referee. lb. But a report of a referee upon a reference to settle claims against executors or adminis- trators may be reviewed either by an appeal directly from the judgment to the general term or by a motion at special term for a new trial by way of opposing the motion to confirm the report. Coe v. Che, 37 Barb, 232 ; S. C, 14 Abb. 86. But if it appears that the report of a referee upon questions of fact has been, even in the slightest degree, affected by any influence exercised by the successful party, it may be set aside for irregularity. Dorlon v. Lewis, 9 How. 1 ; Roosa v. Sauger- ties & Woodstock Turnpike Road Go., 12 How. 297 ; Gray v. Fisk, 42 How. 135 ; 12 Abb. N. S. 213. This is rather a review of the proceedings of the referee, than of his report. b. By appeal. The Code provides that the report of a referee upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. It also provides that the referee in his report must state separately the facts found and the conclusions of law ; and that his decision must be given and may be excepted to and reviewed in the same manner and with the same effect in all respects as on an appeal under section 268 of the Code. Code, § 272. The Code contains, also, the follow- ing provisions : An appeal upon the law may be taken to the general term from a judgment entered upon the report of referees, or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Code, § 348. See, also, §§ 267, 268. Upon an appeal from a judgment, when the trial has been by the court, the questions of law or fact, or both, may be reviewed by the general term. The review is in the same manner, when it embraces questions of law and fact and the appeal to the general term is from a judgment entered upon a trial by referees. Code, § 272. If REFERENCE, AND APPOINTING A REFEREE. 325 Reviewing report^ By appeal. a party desires a review upon the evidence appearing on the trial, either of the questions of fact or of law, he may make a case or exceptions in like manner as upon a trial by jury. Code, § 268. When the trial is by jury, exceptions may be taken and stated in a case, or separately, with so much of the evidence as may be material to the questions to be raised. Code, § 264. The party desiring to appeal from the decision of a referee may deem that injustice has been done him in one or more par- ticulars. Thus, he may consider, 1st. That he has been preju- diced by improper rulings made on the trial either as to the admission or rejection of evidence; 2d. That requests to find whether certain facts did or did not exist have been denied or disregarded ; 3d. That the facts found, or some of them, were entirely unsupported by evidence ; 4th. That the facts found were contrary to evidence ; or, 5th, that the referee erred in the conclusions of law drawn from the facts found. The preliminaries to an appeal on any of the above grounds have already been noticed. If the referee has made improper rulings on the hearing in regard to the admission or rejection of evidence, and exceptions thereto have been duly taken at the time, the party desiring to perfect his appeal should next pro- ceed 4o put these exceptions in the form required by the rules of court, on appeals to the general term. The exceptions which have been taken on the trial are preserved in the minutes of the counsel and referee, and must be settled in the manner pre- scribed by the rules of court. The first step will be to make a case containing the exceptions taken on the trial, and. so much of the evidence as may be necessary to present the questions for review. Rules 41, 43, Sup. Ct. A copy of this case and excep- tions must next be served on the opposite party within ten days after written notice of the filing of the referee's report ; and the parties served may, within ten days thereafter, propose amend- ments thereto, and serve a copy on the party proposing the case and exceptions, who should then, within the next four days, serve the opposite party with a notice that the case and exceptions, with the proposed amendments, will be submitted at a time and place specified, to the referee before whom the cause was tried, for settlement. The time for settling the case as specified in the notice, must be not less than four nor ' more than twenty days after the service of the notice. Rule 42, Sup. Ct. The party proposing the case and exceptions 326 REFERENCE, X AND APPOINTING A REFEREE. Reviewing report — By appeal. should then mark upon the several amendments his allowance or disallowance of them before they are submitted to the referee for settlement. Rule 43, Sup. Ct. The referee will thereupon settle the case according to the facts. Rule 41, Sup. Ct. The power to settle a case or exceptions is conferred upon the referee by section 272 of the Code. If the cause was tried before more than one referee all must be present at the settlement. A settlement of a case or exceptions before two of three referees will be irregular.. Fielden v. Lahens, 14 Abb. 48. See Towrisend v. Glen's Falls Insurance Co., 10 Abb. N. S. 277. The case and exceptions, as settled, must be filed within ten days after the settlement, unless th« time has been extended, or the case will be deemed abandoned. Rule 44, Sup. Ct. If no amendments are proposed the referee has only to settle the case as made. Amendments should be written on the case served, or on a separate paper containing a distinct reference to the page and line of the original case proposed to be amended. Stuart v. Binsse^ 3 Bosw. 657. The original case or exceptions and the amendments as they came from the referee, with the corrections or allowances as made by him, must be filed, and not a copy of the case as settled. Parker v. IdnTc, 26 How. 375, During the ten days immediately follow- ing the settlement, and before filing the original, the party should make a copy of the case or exceptions, as settled, to serve upon the opposite party, eight days before the time of noticing for argument, as required by rule 49 of the supreme court. It is also in accordance with the correct practice to file with the original, a transcript or copy of the case as settled, and to serve upon the opposite party a notice that the case has been filed. lb- After a case or exceptions has been settled and filed with the clerk, it may be taken prima facie, in the further progress of the action, as evidence of the facts therein appearing. Van Bergen v. AcTcles, 21 How. 314. The case being thus prepared, settled and filed, the cause is then in a condition to be reviewed at general term, and the mov- ing party has only to file a note of issue with the clerk for the purpose of having the cause placed on the calendar, as required by rule 48, notice the cause for a hearing, and serve and fur- REFERENCE, AND APPOINTING A REFEREE. 327 Reviewing report — By appeal. nish the necessary papers in the form required by the rules of court. See Rules 46, 49, 50, 52, Sup. Ct. If the party appealing is dissatisfied with the failure or refusal of the referee to find certain facts which may be necessary to bring up the case properly for review, he should proceed to obtain the omitted findings. It is to be presumed that the party appealing presented the referee, on the conclusion of the trial, with a written statement, in the alternative form, of the facts which he desired found in his favor, with a request that the referee find upon them in one way or the other. If the referee has neglected or refused to find in his report upon the questions so presented, the party may proceed to obtain such findings upon the settlement of the case. In order to obtain such additional findings, the referee must be requested, by the proposed case and exceptions, specifically to find the fact. See Tomlinson v. Mayor, etc., of New YorTc, 44 N. Y. (5 Hand) 601, 607. By an important amendment of rule 41 of the supreme court, the referee is authorized and required, upon the submission of the case and amendments to him for settlement, to correct and settle the case according to the facts, and at the same time to find on such other questions or facts as may be required by either party and be material to the issue. The decision of the general term of the supreme court, to the effect that the request for additional findings must be made before the settlement of the case, was decided before the fore- going amendment of the rules. See Lefler v. Field, 50 Barb. 407. ° Should the referee refuse to pass upon the questions of fact submitted to him for that purpose, and to find affirmatively or negatively, the party should, as a precautionary measure, take an exception to such refusal, although such exception may not be strictly necessary or available to, raise the question for review. See Grant v. Morse, 22 N. Y. (8 Smith) 323 ; Manley v. Insur- ance Co. of North America, 1 Lans. 20 ; Priest v. Price, 3 Keyes, 222*; Lefler v. Field, 47 N. Y. (2 Sick.) 407 ; Ashley v. Marshall, 29 N. Y. (2 Tiff.) 494 ; Brooks v. Van Fvery, 3 Keyes, 27. The party should thereupon move the court at special term, before the argument of the appeal from the judgment, for an order directing the referee, in settling the case, to insert such part of the proposed matter as related to the points or claims alleged to have been actually made upon the trial before him, 328 REFERENCE, AND APPOINTING A REFEREE. Reviewing report — By appeal. and to send the case back to him for further findings, if it should be made to appear that they were necessary to a proper review of the judgment. Lejier v. Field, 47 N. Y. (2 Sick.) 407 ; Van Slyke v. Hyatt, 46 N. Y. (1 Sick.) 259 ; Brainerd v. Dunning, 30 N. Y. (3 Tiff.) 211 ; Snook v. Fries, 19 Barb. 313 ; Rogers v. Beard, 20 How. 282 ; Hulce v. Sherman, 13 id. 411 ; Sharp v. Wright, 35 Barb. 236 ; Lane v. Borst, 5 Rob. 609. Upon the application for the order, the materiality of the desired findings should be shown to the" court. Should the application be denied, the proceedings to obtain further findings can be inserted in the record, and upon an appeal from the judgment the materiality of the findings asked for and refused can be deter- mined at the general term, and in the court of appeals on a review of the whole case. Van SlyTce v. Hyatt, 46 N. Y. (1 Sick.) 259. The effect of an attempt to procure additional findings of fact is to defeat the application of the general rule, that where there has been no expressed finding of a referee upon a question of fact, the court will, in reviewing the judgment upon appeal, assume, in support of the judgment, that he did find such further facts in favor of the party recovering as are essential to uphold it. Where the finding of facts does not contain enough to sustain the conclusion of law, and it appears from the case that a request to find upon the material facts not found was refused, otherwise than as found in the report, and that that is silent thereon, this court will not presume, in aid of the judgment, that there was a finding not expressed in terms. Meyer v. Amidon, 45 N. Y. (6 Hand) 169. See, also, Oberlander v. Spiess, id. 175. There is a distinction to be observed between the proceedings necessary to obtain additional findings of facts where a trial has been had before the court, and the proceedings necessary to ob- tain the same result where the trial was before a referee. Where the trial is by a judge of the court, a request to find particular facts is sufficient ; and, on his settlement of the case, he will state that such reqtiest was made and refused. A motion, at special term, to compel a judge to find one way or the other would not be proper, as the judge trying the cause has the same power as a judge at special term, which is not the case with a referee. See People v. Qhurch, 2 Lans. 459 ; S. C, 57 Barb. 204. It is always advisable to present to the court or referee a writ- ten statement of the findings desired, even if not strictly neces- REFERENCE, AND APPOINTING A REFEREE. 329 Reviewing report — By appeal. sary ; for, if furnished, no question can be raised that the request was not first made upon the trial. The objection that certain findings of fact in the referee' s report are unwarranted by the evidence cannot be raised by an excep- tion to the report. Exceptions to a referee' s findings of fact are idle and of no avail, as the remedy is by another mode. The decision of a referee is always open to review in the supreme court, without any exception, and the court will always look into the entire evidence, if the question is raised, to see whether there is evidence tending to prove the facts as found by the referee. No exception is necessary to raise the question. Lefler v. Field, 50 Barb. 407 ; Russell v. Dujion, 4 Lans. 399. A case must be made containing all the testimony, when that is important, and the question is then before the court to consider and determine whether the referee's findings, whether express or implied, are against evidence. Manley v. Insurance Co. of North America, 1 Lans. 20. The general rule as to the conclusiveness of a referee's finding on a question of fact, where the evidence is con- flicting, has been given, see ante, p. 314. Where a referee, upon conflicting testimony, arrives at a con- clusion as to the existence or non-existence of an alleged fact, and incorporates this conclusion in his report, his finding, in this respect, if contrary to evidence, is an error upon a question of fact, and, as has been previously stated, no exception is neces- sary or proper to raise the question for review in the supreme court. The court of appeals, being a court of law, will not gen- erally review an error as to a question of fact. Mason v. Lord, 40 N. Y. (1 Hand) 476. But a finding of facts should always be based upon evidence ; and where none is given tending to show an affirmative fact, it is contrary to law to find such fact against a party traversing it. Thus, where a referee finds a fact upon which no evidence was given upon the trial, the error is not one of fact, but of law, and may be reviewed in the court of appeals. Mason v. Lord, 40 N. Y. (1 Hand) 476 ; Beck v. Sheldon, 48 N. Y. (3 Sick.) 365 ; Putnam v. Hulbell, 40 N. Y. (3 Hand) 106; Root v. Great ' Western Railroad Co., 45 N. Y. (6 Hand) 524. If the party appealing is satisfied that no error was committed, upon the trial, and that the findings of fact were according to the evidence, yet insists that the referee has erred in his legal con- clusions, he must then proceed to serve his exceptions to the Vol. III.— 42 330 REFERENCE, AND APPOINTING A REFEREE. Eeviewing report — By appeal. report in the manner prescribed by the first clause of section 268 of the Code. If the question which the party desires to present for review upon appeal sufficiently appears from the record, without a statement of the evidence, it will be sufficient for the party to draw up his exceptions to the decision, and serve them upon the adverse party within the time prescribed, or such further time as may be allowed for that purpose under section 405 of the Code. See ante, p. 317, 318. But such a case will rarely occur. Generally, it will be found necessary, in order to present intelligibly the questions of law which the party appealing seeks to have reviewed, to make a case containing at least a portion of the evidence. If any exceptions have been taken while the trial was in pro- gress, these, too, should be inserted in the case. Tremain v. Rider, 13 How. 148. These exceptions, although distinct from those taken after judgment, must be inserted in the same case ; and the case so made must then be settled in the manner before indicated. Hunt v. Bloomer, 12 How. 567 ; S. C, 13 N. Y. (3 Kern.) 341 ; Johnson v. Whitlock, id. 344; S. C, 12 How. 571. But, notwithstanding a different rule may have been stated in the cases last cited, it is only the matters of evidence contained in the case, and the exceptions taken on the trial, that are subject to amendment and settlement, as the exceptions taken to the report itself are never subject to amendment, by the adverse party. The principles above stated apply to a report of a referee on all the issues. Exceptions are necessary also in a proceeding under a reference other than that of the whole issue. But where a reference is ordered to report facts, the report has the effect of a special Verdict, and the questions arising on the facts thus found may be reviewed upon appeal without exceptions. Kiroy v. FitzpatricJc, 18 N. Y. (4 Smith) 484 ; Swift v. Wylie, 5 Rob. 680. Yet if, in such case, any question be made depending not on the facts found, but on any error in the proceedings on the trial, or in the determination of the facts, the point must be raised by exceptions. Marshall v. Smith, 20 N. Y. (6 Smith) 251. It may not be amiss to consider, in this connection, the princi- ples upon which judgment will be rendered on the appeal. As the Code and the rules of court require the referee to state REFERENCE, AND APPOINTING A REFEREE. 331 Reviewing report — By appeal — Form of case and exceptions. the facts found in his report, the general term, in reviewing the evidence and the report, assumes that the referee has stated all the material facts which he found, affirmatively, and as to other questions upon which evidence was given, he was unable to find the facts as claimed by the unsuccessful party, or, in other words, he negatived them. As the case contains the testimony, the question is presented to the court and examined precisely as though the referee had expressly found the fact against the party complaining. The question before the court then will be, is such finding, whether express or implied, against evidence. Manley v. Insurance Co. of North America, 1 Lans. 20 ; Westcott v. Fargo, 63 Barb. 349. The mode of obtaining additional findings of facts has been already pointed, out. When a motion has been made for an order requiring the referee to find certain facts omitted from, his report, and the order has been denied, the question of the mate- riality of the omitted finding will then be a matter of review, not only at general term, but in the court of appeals. Van Slyfce v. Hyatt, 46 N. Y. (1 Sick.) 259. No finding of fact by the general term is requisite for the pur- pose of review in the court of appeals. Code, § 268. When the case on appeal has been heard and decided at the general term upon the report of the referee and exceptions, without a case con- taining the evidence, the decision may be reviewed in like man- ner on appeal to the court of appeals. If the judgment is reversed at the general term, and a new trial ordered, it will not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal ; and in that case, the ques- tion whether the judgment should have been reversed either upon questions of fact or of law, will be open to review in the court of appeals. Code, §§ 268, 272. For the purposes of an appeal from a judgment rendered on a report of a referee, it is not neces- sary to insert at large in the case the findings of fact or conclu- sions of law of the referee, or the exceptions filed thereto ; but if the same appear as part of the judgment roll they may be .referred to and used on the argument of the appeal with the same effect as though inserted in the case. Code, § 268. Form of case and exceptions. {Title of cause.) This action was commenced on the day of , 18 , by the service of a summons and complaint. The object of the action 332 REFERENCE, AND APPOINTING A REFEREE. Form of case and exceptions — Setting aside report. was : {Here state it concisely.) The defendant, Z. H., answered the complaint, to which a reply was interposed. The canse was duly referred, by an order of this court, to J. W., as sole referee. On the day of , 18 , the cause was duly brought on for a hearing before said referee, at his office in . On the said trial the following evidence was introduced : {Here set out the evidence, with all objections, exceptions, etc.) The foregoing is all the evidence which was given on the trial of the action before the referee. After hearing the arguments of the respective counsel, the referee on the day of , 18 , made his report in writing, of which the following is a copy : {Here set out a copy of the report.) The defendant, Z. H., at the close of the evidence, and on the summing up of the cause, insisted that the complaint should be dismissed, as to him, for the reasons which are stated in the ex- ceptions to the referees' findings, decision, report, etc. The exceptions of the defendant, Z. H., to the report of the referee, and to his decision and findings, and his omissions to find, etc., are as follows : The defendant, Z. H., excepts to the report of the referee. 1. Because, etc. {Here set out the exceptions to the report?) The judgment entered on the report of the referee is as fol- lows : {Here set out a copy of the judgment) {Set out copy of the process, pleadings and notice of appeal) {Date.) {Signature.) {Address.) c. Setting aside report. Upon an appeal from the decision of a referee, if the case contains only the report of the referee, without any of the evidence, the record will present the ques- tion whether there was an error of law and nothing else. In such a case, the report of the referee can only be set aside upon the facts contained in it, or, in other words, when it affirmatively finds facts which render its results erroneous. It must show that certain facts exist inconsistent with its conclusions of law. Silence is not sufficient. Every presumption is in favor of the report ; and it is assumed to be right and to be founded on proof of every necessary fact. Tomlinson v. Mayor, etc., of New . York, 44 N. Y. (5 Hand) 601. There is a wide difference between the power of an appellate court, to set aside a report on an appeal from a judgment entered thereon, and the power of the special term to set aside a" report on motion. The court, at special term, have no power to set aside on motion the report of a referee lor an error in a conclu- REFERENCE, AND APPOINTING A REFEREE. 333 Setting aside report — Correction of report. sion of law. The remedy is by appeal. Dana v. Howe, 13 N. Y. (3 Kern.) 306. Where a report of a referee contains no findings of facts, the party against whom the report is made may waive the irregular- ity, and, on an appeal from the judgment entered thereon, may obtain the findings of the referee upon the settlement of the case. Or he may apply to the court before the time for excepting has expired, to have the case sent back to the referee, to find speci- fically upon such questions or to re-settle his report. This is undoubtedly the better practice. Van SlyTce v. Hyatt, 46 N. Y. (1 Sick.) 259, 265; affirming S. C, 9 Abb. N. S. 58; Boutonv. Bouton, 42 How. 11 ; Lefler v. Field, 47 N. Y. (2 Sick.) 408 ; WrigM v. Sanders, 28 How. 395. But it does not follow that , this is the only remedy to which the party may resort. If the report does not contain any findings of facts, the defeated party, unless he chooses to waive the irregularity, is entitled to have the report and judgment set aside, and to require that the referee in the first instance report the facts and conclusions of law found by him. WrigM v. Sanders, 28 How. 395 ; Church v. Eroen, 4 Sandf. 691 ; Van Steenburgh v. Hoffman, 6 id. 492 ; Dolce v. Peek, 1 Code R. 54 ; Deming v. Post, id. 121. So where it appears that the report of a referee, upon questions of fact, has been, even in the slightest degree, affected by any improper influence exercised by the successful party, it will be set aside for irregularity. Dorlon v. Lewis, 9 How. 1 ; Roosa v. Saugerties & Woodstock Turnpike Road Co., 12 How. 297; Gray v. Fisk, 12 Abb. N. S. 213 ; S. O, 42 How. 135. d. Correction. An error, apparent upon the face of a referee's report, in a matter of mere computation, may be corrected by the court, although no exceptions to the report have been filed. Bogert v. Furman, 10 Paige, 496. See. Carrie v. Cowles, 7 Rob. 3. Any correction of the report by the referee, after it has been duly signed and delivered,, is unauthorized, and the matter so inserted will be stricken out on motion. Shearman v. Justice, 22 How. 241. An exception to this rule has been noticed in treating of the power and duty of the referee to find additional facts in settling a case, ante, 326 to 329. In several instances the courts have sent the report of a referee back to him for correction, without directing a new trial. This practice has been pursued where the report did not contain a 334 REFERENCE, AND APPOINTING A REFEREE. Coats on review — Changing referee. proper statement of the findings of fact and law. Sulce v. Sherman, 13 How. 411 ; Wright v. Sanders, 28 id. 395. See Sharp v. Wright, 35 Barb. 236 ; Ohureh v. Erben, 4 Sandf. 691 ; Snook v. Fries, 19 Barb. 313 ; Peck v. Tories, 14 How. 416 ; Till- man v. Keane, 1 Abb. N. S. 23. So where a referee has made a report upon the general issues, and has stated therein that an accounting would be necessary be- fore final judgment, the court has sent back the cause to the referee to take and state the account. McMahon v. Allen, 27 Barb. 335; S. C, 7 Abb. 1. See Pratt v. Stiles, 17 How. 211; S. C, 9 Abb. 150. The power of the court at special term to send back a report to a referee, on the ground that it does not pass upon all the issues, has been asserted, and sometimes exercised. Brown v. if. T. Central R. R. Co., 26 How. 32. See Union Bank v. Mott, 13 Abb. 247 ; Bouton v. Bouton, 42 How. 11 ; Nelson v. Ingersoll, 27 id. 1 ; Rogers v. Beard, 20 id. 282. e. Costs on review. The question of costs on the review of a decision of a referee is a matter within the discretion of the court and not subject to any arbitrary rule. On setting aside the report of a referee as against evidence, and ordering a new trial, the appellate court will usually direct that the costs abide the event. Wentworth v. Candee, 17 How. 405. Section 9. Changing referee. a. In general. The power of the court to remove a referee appointed by it, at any stage of the action, is undisputed. This power is, however, seldom exercised, and only for good cause shown. A referee appointed by the court, upon the written consent of the parties, will not be removed upon objections known to the parties at the time of his appointment. Perry v. Moore, 2 E. D. Smith, 32 ; S. C, 3 Code R. 221. So where, in an action not referable, except on consent of the parties, a trial has been had before a referee selected by the par- ties, and a judgment entered upon his report has been reversed and a new trial ordered on questions of law, the court will not substitute a new referee without the consent of the parties. Billings v. Vanderbreck, 15 How. 295. But where the judgment entered upon the report of a referee has been reversed, for the reason that the findings of facts are against evidence, the cause will not be sent back for a new trial REFERENCE, AND APPOINTING A REFEREE. 335 Changing referee — Death of a referee. before the same referee. Billings v. Vanderoreck, 15 How. 295 ; Sharp v. Mayor, etc., of New York, 31 Barb. 578 ; S. C.,19 How. 193 ; Schermerhom v. Van Alen, 13 id. 82. It is the general practice in such cases to vacate the order of reference, on grant- ing a new trial, on the application of either party, and to refer it to a new referee, if the cause is referable, or to retain it in court if it is not. Sharp v. Mayor, etc., of New York, 31 Barb. 578 ; S. C, 19 How. 193. Whether a referee shall be retained or removed, when a new trial is ordered, is a question within the discretion of the court. lb. If a new referee is appointed, it will be on the same grounds, and' for the same reasons, which require a new j ury to retry a cause in which a verdict has been had. and a new trial ordered. Murphy v. Winchester, 35 Barb. 616. On reversing a judgment entered on a report of a referee for an error in fact, and on granting a new trial, it is, as has been stated, the general practice to vacate the order of reference. This practice is not, however, universal. The order of reference may be allowed to stand, but with leave to either party to apply for the appointment of a new referee. White v. Smith, 1 Lans. 469. In an action for a divorce on the ground of adultery, the fact that the person to whom the cause is referred was referee in a prior action of the same nature between the same parties, and decided in favor of the defendant, will not give the plaintiff a right to insist on the appointment of a new referee, in the absence of any necessary conclusion drawn from the testimony taken or the proceedings had in the former case, either that the referee had a bias in favor of one of the parties, or a prejudice against him, or that his decision in the prior action will be apt to influence his mind in determining the subsequent one. Glark v. Clark, 7 Rob. 62. Any irregularity in the appointment of a referee, which might have been a good ground for his removal, will be waived by the appearance of the parties before him, and proceeding with the reference without objection. Quinn v. Lloyd, 7 Rob. 157. The inability of a referee to proceed with the reference will be a good cause for his removal. Forrest v. Forrest, 3 Bosw. 650. 5. Death of referee. Upon the death of two of three referees, the order of reference will be vacated as a matter of course. 336 REFERENCE, AND APPOINTING A REFEREE. Death of parties — Actions against referees. Emmet v. Bowers, 23 How. 300. But, upon the death of one of three referees, after the cause has been tried and a report made, the survivors may settle the case on an appeal from the judgment entered on the report. Westbroolc v. Dubois, 3 How. 26. Upon the death of a sole referee, after the cause has been tried and the report signed, the successful party may proceed to enter judgment on the report in the same manner as if the referee were still living. If the unsuccessful party has obtained ah order to refer the cause back to the referee to amend his report, such order will be vacated. In such cases the death of the referee is a mis- fortune which the unsuccessful party must bear, and all the con- sequences resulting from it. Juliand v. Grant, 34 How. 132. The imsuccessful party may bring an appeal from the judgment entered upon the report of the referee, and obtain additional time to make a case and exceptions with a stay of proceedings. The case and exceptions should be settled by one of the justices of the court, on hearing the attorney or counsel who tried the cause. lb. Should the judgment be reversed on the appeal, the cause must then be retried before another referee or a jury. The death of the referee before the signing of the report would, of course, put an end to the reference. c. Death of parties. Where, pending a reference, one of the plaintiffs dies, and his successor in interest is substituted, the reference is not superseded nor the prior proceedings invalidated. Upon the allowance of the order continuing the action in the name of the successor in interest, the proceedings will continue from the point at which they were interrupted by the death of the party. Moore v. Hamilton, 48 Barb. 120 ; S. C. affirmed, 44 N. T. (5 Hand) 666. Vol. l,.p. 158. The death of a sole plaintiff, after the report of a referee in favor of the defendant,, will not prevent the entry of judgment against him on the report. Scranton v. Baxter, 3 Sandf. 660 ; S. C, 1 Code R. N. S. 88. But an action of ejectment against a sole defendant, who dies before the report of the referee is signed, abates absolutely, and no judgment upon such report can be entered nunc pro tunc, as such report is null and Void. Kissam v. Hamilton, 20 How. 369. Vol. 1, p. 153. Section 10. Actions against referees. a. In general. Where a referee, appointed by the court to perform certain duties, and in the performance thereof receives REFERENCE, AND APPOINTING A REFEREE. 33,7 Actions against referees. certain moneys, no action can be brought against him to recover the same without the permission of the court. In such cases he is an officer of the court, and the moneys in his hands are con- sidered as in the custody of the court, and the rules which apply to actions against receivers apply to actions against him. Hig- gins v. Wright, 43 Barb. 461. Vol. 1, p. 200,/. Vol. Ill, — 43 CHAPTER VI. INTERLOCUTORY OR DECRETAL ORDERS. ARTICLE I. ORDER RESERVING FURTHER DIRECTION'S AND REFERENCE THEREON. Section 1. In what cases order is made. a. In general. Under the former practice in chancery, a clear and well-defined line of distinction was preserved between final decrees of the court, and decrees merely interlocutory. If all the questions arising out of a controversy between the parties were heard and determined, and nothing remained to be done but to carry the decision of the court into effect, then the decree was final ; but, if any matter of law or fact was left to be ascertained, the ultimate determination of which might affect the right of the parties, the decree was merely interlocutory. Kane v. Whittick, 8 Wend. 219, 224 ; Travis v. Waters, 12 Johns. 500 ; Jaques v. The Methodist Church, 17 id. 549, 558 ; Mills v. Boag, 7 Paige, 18 ; Smith v. Lewis, 1 Daly, 452. See Loring v. Illsley, 1 Cal. 27 ; Chouteau v. Rice, 1 Minn. 24. The same distinction between final and interlocutory decrees or judgments still necessarily exists, and is constantly recognized in actions for equitable relief under the Code, though not ex- pressly stated in the terms of that instrument itself. Thus : On a trial by the court without a jury, the decision may be final, that is, all the questions involved in the controversy may be determined, and final judgment be entered thereon without fur- ther proceedings ; or, it may be merely interlocutory, ascertain- ing the rights of the parties, and directing a reference for the purpose of taking and stating an account, or determining some other fact or material circumstance, and reserving further direc- tions until the coming in and confirmation of the report. Wil- liamson v. Meld, 2 Barb. Ch. 281 ; Cruger v. Douglass, 2 N. Y. (2 Comst.) 571 ; S. C, 4 How. 215 ; Harris v. ClarTc, id. 78. In the latter case the decision of the court, and the order entered upon it directing a reference, is regarded under the pres- ent practice as corresponding precisely with the interlocutory decree of the court of chancery, the effect in either case being INTERLOCUTORY OR DECRETAL ORDERS. 339 In what cases order is made thereon. the same, namely, to suspend the final decree or judgment until, by the report of the referee or the verdict of the jury, all the cir- cumstances and facts material and necessary to a full under- standing of the matters in litigation are brought before the court, thereby enabling the court to determine finally upon the rights of the parties, according to equity and good conscience. Kane v. Whittick, 8 Wend. 219 ; TompMns v. Hyatt, 19 N. Y. (5 Smith) 534 ; Smith v. Lewis, 1 Daly, 452. The reasons for withholding or suspending the final decree or judgment in the first instance are most frequently founded in the necessity which exists, to make inquiries, or to take accounts, or sell estates, and adjust other matters which must necessarily be disposed of, before a final decision upon the subject-matter of the suit can be rendered (2 Dan. Ch. Pr. 987) ; and in all such cases wliere a reference has been directed for the purpose of ascertaining any material fact in the case, the decree has been held to be interlocutory and not final. Jaques v. Trustees of M. E. Church, 11 Johns. 548 ; ClarJc v. Brooks, 2 Abb. N. S. 385 ; S. C, 2 Daly, 159 ; Morris v. Morange, 38 N. Y. (11 Tiff.) 172 ; S. C, 6 Trans. App. 1 ; 4 Abb. N. S. 447 ; Bows v. Oongden, 28 N. Y. (1 Tiff.) 122 ; TompMns v. Hyatt, 19 N. Y. (5 Smith) 534; Lawrence v. Farmers' Loan & Trust Co., 15 How. -57; S. C, 6 Duer, 689 ; Belmont v. Ponvert, 3 Rob. 693. See Travis v. Waters, 12 Johns. 500. The cases in which an interlocutory or decretal order, directing a reference, is authorized under the present practice, are em- braced within the second and third subdivisions of section 271 of the Code. Subdivision 2 authorizes a reference "where the taking of an account shall be necessary for the information of the court before judgment, or for carrying a judgment or order into effect;" and, by subdivision 3, a reference is authorized " where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action." A reference, when ordered by the court in the course of a suit, for any of the purposes indicated above, is viewed in precisely the same light as an interlocutory decree or order of a court of equity. Hollister Bank of Buffalo v. Vail, 15 N. Y. (1 Smith) 593 ; McMahon v. Allen, 27 Barb. 335 ; S. C, 7 Abb. 1 ; Tomp- kins v. Hyatt, 19 Hf. Y. (5 Smith) 534) ; and the referee, being a mere substitute for a master in chancery, must conform to the 340 INTERLOCUTORY OR DECRETAL ORDERS. Reference to make inquiries. former chancery practice. Palmer v. Palmer, 13 How. 363; Cameron v. Freeman, 10 Abb. 333 ; S. C, 18 How. 310. And, since the Code has made no other'' provisions on the sub- ject, the proceedings generally, on interlocutory orders, must be conducted in accordance with the rules of the old court of chan- cery. Wiggin v. Cfans, 4 Sandf. 646 ; KetcTium v. Clark, 22 Barb. 319 ; Elmore v. Thomas, 7 Abb. 70 ; Smith v. Lewis, 1 Daly, 452 ; Code, § 469 ; Sup. Ct., Rule 97. o. Reference to make inquiries. Among the numerous cases in which the court will direct a reference to make inquiries before final judgment are those relating to the title of the vendor in suits for the specific performance of contracts to convey real estate ; and, in suits of this nature, generally, it is a rule of the court not to make any decree whatever until certain preliminary inquiries have been made. Thus, as a general rule, the court will not permit the question, whether a good title can be made or not, to be argued before it in the first instance, even though the objections to the title are stated, and the questions arising upon them are properly raised by the pleadings. Jenkins v. Hiles, 6 Ves. 646 ; 2 Dan. Ch. Pr. 988. A purchaser may, however, pre- clude himself, from his right to such an inquiry by his manner of pleading (Jenkins v. Hiles, supra), or by agreement (Duke v. Barnett, 2 Coll. 337 ; S. C, 10 Jur. 87), or by acts in pais, such as taking possession of the estate or exercising acts of owner- ship over it (Fleetwood v. Green, 15 Yes. 594 ; Margravine of Anspach v. Noel, 1 Mad. 310) ; but such acts will not deprive the purchaser of his right to investigate the title, unless the court is satisfied from them that he intended to waive and has actually waived it. Burroughs v. Oakley, 3 Swanst. 159. The terms in which a reference is directed by an interlocutory decree, to inquire into the title of a vendor, is framed, not to in- quire whether he could make a good title at the time of entering into the contract, but whether he can, at the time of the reference, make a good title (Lungford v. Pitt, 2 P. Wms. 629 ; Mortlock v. Buller, 10 Yes. 292 ; Baldwin v. Salter, 8 Paige, 472 ; but, see Richmond v. Or ay, 3 Allen [Mass. J, 25) ; and it has been held, that if the vendor can show a good title at any time before the result of the inquiry into the title has been certified by the officer of the court, it will entitle him to a decree (Hepburn v. Dunlap, 1 Wheat. 179 ; Mortlock v. Buller, 10 Yes. 292 ; Sey- mour v. Delancy, 3 Cow. 445) ; or, if the vendor can satisfy the INTERLOCUTORY OR DECRETAL ORDERS. 341 Reference to make inquiries — To take proofs. court that he can make a good title by clearing up the objections, even after the result of the inquiry has been certified, a decree will be made in his favor. Paton v. Rogers, 6 Mad. 256. An order for a reference of this nature should contain a dec- laration that the contract ought to be specifically performed. Mole v. Smith, Jacob, 490 ; 1 Barb. Ch. Pr. 328. A reference is sometimes directed by the court for the purpose of making inquiries as to what persons are interested in the subject-matter of the suit. Thus, in all cases relating to the dis- tribution of the estate of an intestate, the court will, before it makes any decree affecting the estate, or even ordering an account of it to be taken, direct a reference to inquire and report who were the next of kin of the intestate at the time of his decease, and whether any of them have since died, and, if dead, who are their legal personal representatives. 2 Dan. Ch. Pr. 991. There are other cases, also, in which there is a fund distribut- able among persons constituting a particular class consisting of numerous individuals, as in the case of a bequest to the cousins of a testator, etc., where the court will, before it directs any steps to be taken, either toward a distribution or for ascertaining the amount of the fund, satisfy itself by a previous reference, that all the individuals constituting the class among whom the fund is distributable are parties to the proceeding. 2 Dan. Ch. Pr. 991 ; 1 Barb. Ch. Pr. 328. And the same course of proceeding is pur- sued, where the property is distributable between one of the two or more classes of individuals. lb. Another instance of an interlocutory order for a reference to make inquiries is given in a case where it being necessary to as- certain a particular description of the plaintiff's real estate, in order that a judgment for defendant might be made a specific lien upon it, this inquiry, which was not embraced in the issues, was referred to a referee preparatory to final judgment. Elmore v. Thomas, 7 Abb. 70 ; 1 Van Sant. Eq. Pr. 516. c. To take proofs. Under an interlocutory order for a reference to take proofs, the referee must take all the evidence that is offered without regard to its competency, and report it with his opinion, leaving the. court to decide, on the hearing of the matter, what is or is not competent. Scott v. Williams, 14 Abb. 70 ; S. C, 23 How. 393. And, in such case, the referee has no power to receive an affidavit as evidence. He must require the witness 342 INTERLOCUTORY OR DECRETAL ORDERS. To take accounts, make computations, hear claims, etc. to be sworn before him. Security Fire' Insurance Co. v. Martin, 15 Abb. 479. The authority of a referee over questions of an interlocutory nature which have arisen during the trial, ceases after he has rendered his decision and made his report. Allen v. Way, 7 Barb. 585 ; S. C., 3 Code R. 243. d. To take accounts, make computations, etc. An interlocu- tory order for a reference to take accounts and make computa- tions, is usually made in all cases where the action is brought for the purpose of obtaining a general accounting. Thus, an order of this nature will be made in an action brought by legatees against an executor for the purpose of compelling him to ren- der an account, and to obtain from him payment of legacies ; or, in an action brought by a creditor against an assignee for a similar purpose ; or a ; cestui que trust against any other trustee ; or by one partner against his copartner for the winding up of the affairs of the partnership. Graham v. Golding, 7 How. 260 ; And, in like manner, a reference will be ordered for a computa- tion of the amount due preparatory to entering final judgment, in an action for the foreclosure of a mortgage, after the decision of the issues declaring the plaintiff's rights on his bond and mortgage. Hollister Bank of Buffalo v. Vail, 15 N. Y. (1 Smith) 593 ; Johnson v. Everett, 9 Paige, 636. So in an action brought by preferred creditors, under a co- partnership, against the assignees and others, to obtain a general accounting, including the proceeds of certain real estate sought to be charged as copartnership property, in a case in which the cause was tried and an interlocutory decision made, charging- the value of the improvements to the real estate as copartnership assets, and ordering a reference to compute such value and take an account. Kendall v. Rider, 35 Barb. 100 ; 1 Van Sant. Eq. Pr. 514. So in an action brought by the assignee himself to settle certain equities between the creditors under the assignment, and to render a final account, and obtain his discharge, on an interloc- utory decision upon the issues, a reference to take the account was ordered. Van Santvoord v. Floyd (Rensselaer special term, December, 1858, not reported). Cited in 1 Van Sant. Eq. Pr. 514. e. To hear claims. An interlocutory order for a reference under this head is necessary for the purpose of the distribution of a fund among creditors, or the surplus thereof ; a familiar INTERLOCUTORY OR DECRETAL ORDERS. 343 Form of creditors' claim before referee to surplus moneys on a mortgage sale. illustration of which is given in the case of claims to surplus moneys arising on a foreclosure sale ; and a reference of this nature may be directed either before or subsequent to final judg- ment, or as consequent thereon. In actions brought by creditors the order usually directs such creditors to come in before the referee and establish their claims. The creditor so coming in is required to present the particulars of his claim in writing, sup- ported by ah affidavit that the amount claimed is justly due, and that neither he, nor any other person for his use, has received the amount claimed, or any part thereof, or any security or satis- faction therefor. Morris v. Mowatt, 4 Paige, 142. The object of this affidavit is not to prove the claim, but merely to guard against fictitious claims, which the parties themselves know to be unfounded in justice ; and if the claim presented is contested by any person having a right to contest the same, it must be supported by legal proof. Morris v. Mowatt, 4 Paige, 142 ; Fladong v. Winter, 19 Yes. 199. Form of creditors' claim before referee to surplus moneys on a mortgage sale. {Title of cause.) The claim of A. G., a specialty creditor of W. M., the defend- ant in this suit, to the surplus moneys arising from the_ sale of the mortgaged premises, under the judgment in this action. The said A. Gf. states that he resides at Johnstown, in the county of Pulton, and that he has a lien upon the said surplus moneys by virtue of a judgment recovered against the mortgagor, W. M., in the supreme court, for the sum of $ , on the day of , 18 . and while he, the said W. M. , was the owner of the equity of 'redemption in the mortgaged premises and before the commencement of this suit ; which lien is next in priority after the mortgage of the complainant ; and the whole amount of which judgment is still due and unpaid. And he, therefore, claims the whole of said surplus moneys arising from the sale of the mortgaged premises, which, after paying the amount of the complainant' s debt and costs, amounts to the sum of $ A. G. {Dated, etc.) To E. B., Esq., Referee. Fttltoh County, ss. : A. G., the above claimant, being duly sworn, says that the facts set forth in the above claim are true ; that the amount therein claimed as being due to him upon the judgment therein mentioned, is justly due; and that neither he, nor any person 344 INTERLOCUTORY OR DECRETAL ORDERS. Form of creditors claim before referee, etc. — To sell estates. by his order, or to his knowledge or belief, for his use, has received the amount thus claimed, or any part thereof, nor any security or satisfaction whatever for the same or any part thereof, other than the said judgment. A. Gr. Sworn before me, this day ) of , 18 . j E. B., Referee. A complainant in a creditor' s suit will be required to prove his debt under the decree. So under a decree directing an account of the estate of the complainant' s testator, and of his debts, etc., and that the creditors come in and prove their debts, the com- plainant may come in and prove his debt, and be examined respecting it. 1 Barb. Ch. Pr. 622. Witnesses may be examined either in support of or against the claim ; but in supporting charges, it seems, the strict rules of evidence, by mutual under- standing, are frequently dispensed with ; and that bonds, deeds, notes and other securities are almost invariably proved by affi- davit, recourse being had to the examination of witnesses only in very closely contested cases, or where fraud is suspected. 2 Dan. Ch. Pr. 1210 ; 1 Barb. Ch. Pr. 522. Where a person, not a party to the suit, presents a claim, the party representing the estate on which the claim is made has a right to the benefit of any defense which he could have made to a bill filed by the claimant, or to an action at law, brought to establish such claim. The statute of limitations may, therefore, be set up in bar of the claim, provided such claim was within the operation of -the statute, before the decree was pronounced. lb. So, also, if it is objected that a person is not a creditor for a valuable consider- ation, that question may be entered into on the reference. Pea- cock v. Monk, 1 Ves. Sr. 127-131. Exceptions may be taken to the referee' s report in the same manner as exceptions are taken in other cases ; but this mode of objecting applies only to those cases in which the claim has been taken into consideration. If the referee refuses, for any reason, to entertain the claim at all, the proper course seems to be to apply to the court by motion or petition. 2 Dan. Ch. Pr. 1212 ; Paynter v. Houston, 3 Mer. 297. /. To sell estates. Though interlocutory references are often directed for this purpose, it must be constantly borne in mind, that an order is not interlocutory merely because it directs a reference. Thus, a decree or order may be final, and not inter- INTERLOCUTORY OR DECRETAL ORDERS. 345 To sell estates — In divorce actions. locutory, although it directs a reference ; if all the consequen- tial directions depending upon the result of the referee's report are contained in the decree, so that no further decree or order of the court will be necessary upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court. Mills v. Hoag, 7 Paige, 18 ; QuacTcen- bush v. Leonard, 10 id. 131 ; Morris v. Morange, 38 K Y. (11 Tiff.) 172 ; S. O, 6 Trans. App. 1. But, on the other hand, no judgment or decree can be considered as final which expressly reserves any question whatever for future consideration and determination by the court. Belmont v. Ponvert, 3 Rob. 693 ; Butler v. Lee, 33 How. 251 ; S. O, 8 Keyes, 70. Thus, it has been held, that a judgment for the sale of lands and the dispo- sition of the proceeds, in accordance with the report to be made upon a reference therein ordered to ascertain the shares of the respective parties, is merely interlocutory, and no appeal can be taken from it to the court of appeals, even though it do not con- tain a provision for a review of the report, or for suspending the actual payment of the money to give an opportunity for ah appeal. Tompkins v. Hyatt, 19 N. Y. (5 Smith) 534. And a decree or judgment empowering an executor to sell the lands of his testator for the payment of the debts of the estate, and to report his proceedings in execution thereof to the court, is not final, but interlocutory. Goodwin v. Miller, 2 Munf. (Ya.) 42. g. In divoi'ce actions. Interlocutory references are frequently directed, in actions for absolute or limited divorces, for the pur- pose of making inquiries into and taking proofs of all the material facts charged in the complaint. Thus, where a divorce is sought on the ground of adultery, a reference of this nature may be ordered under the 87th rule of the court, or where an action is brought to annul a marriage, on the ground that the party was under the age of legal consent, or a lunatic, or that the plaintiff's consent was obtained by force or fraud, a reference may be ordered under rule 88. A reference may also be ordered to take proof of the facts charged in a complaint for a separation, or limited divorce, under the 89th rule ; or to inquire into the question of the legitimacy of children on complaint of a husband for divorce, pursuant to the 91st rule ; also, a reference to inquire and ascertain the amount which should be allowed a wife as alimony for the support of herself and children, etc. References under this head proceed substantially in the same Vol. III.— 44 346 INTERLOCUTORY OR DECRETAL ORDERS. . Form of interlocutory order of reference under 87th rule — In partition. general manner as other references of the class under consideration. Witnesses are summoned, the parties notified, testimony taken, and the referee's report made, filed and excepted to, in like manner. If the report is found insufficient, the court may order it to be recommitted to the referee to take further proof. Arbor- gast v. Arborgast, 8 How. 297 ; ZorTcowsM v. ZorTcowsM, 27 id. 37 ; S. C., 3 Rob. 613. See Divorce. Form of interlocutory order of reference under 87th rule. (Title of cause.) n ' (At a special term, etc.) / ' On reading and filingr>roof of due service of summons.more than twenty days sincrej' and that the defendant has failed to answer within the time required by law (or has put in his [or her] answer, which does not deny the facts charged in the complaint in this action, and on proof of due service of notice of motion on defendant's attorney), and, on motion of H. E. S., counsel for the plaintiff, it is ordered that it be referred to A. B,., of, etc., as referee, to take proof of all the material facts charged in the complaint, and report thereon, with the proofs so taken by him, to the court, with all convenient speed. (If the legitimacy of children be questioned in the complaint, add :) And that said referee also take proofs upon the question of the legitimacy of E. Gr., one of the children of the said defendant, as well as upon the other matters stated in the com- plaint, and also report with his opinion thereon, and the proofs so taken by him, with all convenient speed. # h. In partition. The court having ascertained the rights and interests of the respective parties in an action for the partition of real estate, an interlocutory or decretal order may be made for its apportionment or partition, preparatory to a final judg- ment or decree declaring such partition final and- effectual between the parties. In this case, however, the reference is not ordered before a single referee, as is usually done in other cases of interlocutory references ; but, by the provisions of the Revised Statutes (which are made applicable to actions for the partition of lands, by sec- tion 448 of the Code), the order directing the reference appoints three reputable freeholders commissioners to make the partition so adjudged, according to the respective rights and interests of the parties as the same were ascertained and determined by the court. 2 R. S. 321 (331), § 25. • See Partition. In case of the death, resignation, or neglect to serve, of the INTERLOCUTORY OR DECRETAL ORDERS. 347 In partition — In foreclosure. persons thus appointed, or either of them, the court is empowered under the statute 'to appoint others in their places, from time to time, as may be necessary. Id., § 26, The subsequent sections of the statute prescribe the manner in which the commissioners shall proceed in such cases, and, after completing the partition and division of the real estate, they are required to make a full report of their proceedings, "under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided and the shares allotted to each party, with the quantity, courses and dis- tances of each share, and a description of the posts, stones or other monuments thereof, and the items of their charges." Id. 322 (331), § 30. . The proceedings and the report made thereon are in all respects similar to the proceedings by a referee upon an interlocutory order. The report must be filed in the office of the clerk of the court (Id. 322 [331], § 33), and the cause is brought to a hearing upon it, and a final judgment rendered similar to the former final decree in chancery, that the partition made by the commis- sioners be firm and effectual forever. 2 R. S. 322 (332), § 35. The report of the commissioners is not liable to be excepted to, under the provisions of the 39th rule of the court, relating to the reports of referees ; but, if any party is dissatisfied, the report, on good cause shown, may be set aside by the court and new commissioners be appointed as often as may be necessary ; or the report may be amended in respect to any mere formal inac- curacy. 2 R. S. 322 (332), § 34 ; 2 Barb. Ch. Pr. 301. See Double- day v. Newton, 9 How. 71. i. In foreclosure. If, in a suit for the foreclosure of a mort- gage, a decree is made which merely decides or declares the rights of the complainant by virtue of his bond and mortgage, and directs a reference to compute and ascertain the amount due to him, reserving all questions and directions until the coming in and confirmation of the report of the referee, it is an interlocutory decree merely, and the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved, and for further directions as to a sale of the mortgaged premises and the payment of his debt and costs out of the proceeds of such sale. Johnson v. Everett, 9 Paige, 636. But if a judgment or decree in such an action directs the sale of the premises for the satisfaction of the debt, and that the de- 348 INTERLOCUTORY OR DECRETAL ORDERS. In foreclosure — Order upon interlocutory decision. fendant pay any deficiency appearing after such sale, the judg- ment or decree is final, and not interlocutory merely, as it leaves nothing further to be adjudicated or reviewed by the court. Morris v. Morange, 38 K Y. (11 Tiff.) 172 ; S. C, 6 Trans. App. 1 ; 4 Abb. N". S. 447. See Bolles v. Duff, 43 TS. Y. (4 Hand) 469 ; S. C, 41 How. 355 ; 10 Abb. N". S. 399. Claim to surplus money, on a foreclosure sale, is a proceeding subsequent to final judgment, and is had after the filing of the report of sale. The practice is regulated by rule 77 of the supreme court, and is similar to the former chancery practice, as prescribed by the provisions of the 136th chancery rule, as amend- ed by the chancellor in 1840. See post, 368, art. 4, § 1 g. j. Order upon interlocutory decision. The hearing of a cause in the first instance, and the examination and determination of the issues between the parties by interlocutory decisions, is re- garded as a trial, within the meaning of the Code, requiring a written decision of the judge to be made and filed. The decision itself is not an order, but should properly contain all the elements on which an order directing the reference or other proceeding may be founded. The order entered upon the decision forms the basis of the subsequent proceedings before the referee. The proper practice to be pursued in such cases is as follows : On filing the written decision of the judge, to draw and enter an order, in the form of the former interlocutory or decretal order, following the terms of the decision, and appointing and naming the referee and specifying and directing the subject of the refer- ence. 1 Van Sant. Eq. Pr. 520. See Kendall v. Rider, 35 Barb. 100. If the judge's decision merely directs a reference, without specifying the name of the referee, such referee, unless agreed upon by the party, is to be selected or appointed in the same manner as in other cases of reference. Prom an order directing a reference there can be no appeal on the merits, either upon the questions of law or of fact. Lawrence v. Farmers' Loan and Trust Co., 15 How. 57 ; S. C, 6 Duer, 689 ; Wlvernois v. Leavitt, 8 Abb. 59 ; McMahon v. Allen, 7 id. 1 ; S. C, 27 Barb. 335 ; Lawrence v. Fowler, 20 How. 407. But an appeal might, perhaps, be allowed on the ground that the matter referred was not refer- able, or in respect to the direction given for such reference. See Wiggin v. Oans, 4 Sandf. 646. If a party considers himself aggrieved, by an interlocutory decision of the court on a trial without a jury, he must wait INTERLOCUTORY OR DECRETAL ORDERS. 349 Proceedings upon the reference — Who appointed referee — General powers, etc. until the referee shall have reported, and final judgment has been entered before making his exceptions. He may then take his exceptions and appeal from the judgment to the general term, and if he choose, from the general term decision to the court of appeals. 1 Van Sant. Eq. Pr. 521 ; McMahon v. Allen, 7 Abb. 1 ; S. C, 27 Barb. 335. ARTICLE II. PKOCEEDINGS ON THE KEEEKENCE. Section 1. How to proceed. a. In general. In the present article it is proposed to treat of the proceedings on interlocutory references generally ; and sub- sequently to notice the manner of proceeding, respectively, on : 1. References to take accounts ; 2. To make inquiries ; 3. To sell estates or adjust matters before final judgment. The duties of the officer before whom a reference is directed are various, and extremely difficult to specify, on account of the great variety existing in the questions of law or fact which he may be called upon to decide, or respecting which he may be required to report his opinion to the court. o. Sow made. Under the practice formerly existing, references of this nature were, in all cases, made to a master in chancery ; who was required to reside in the county for which he was ap- pointed ; but he might act as master in-any county of the State. The office of master in chancery was abolished by the constitu- tion of 1846, and it was provided by the judiciary act of 1847, that the functions of such officer were thereafter to be dis- charged by a person appointed by the court to act as referee in each particular case. c. Who appointed referee. Any indifferent person, not a party to the suit, and agreed upon by the parties, or nominated by the court, may act as such referee ; though choice is usually made of an attorney or" counselor at law, or of the clerk of the court. d. General powers and duties. The general powers and duties of referees on interlocutory or decretal orders are not prescribed by the Code, or by the rules of the court, and being the same as were formerly possessed and exercised by a master in chancery, the referee must conform to the rules and former practice of the court of chancery so far as they are applicable under the Code. 350 INTERLOCUTORY OR DECRETAL ORDERS. Change of referee — Fixing time and place of hearing. Palmer v. Palmer, 13 How. 363 ; Ketchum v. Clark, 22 Barb. 319 ; Graves v. Blanchard, 4 How. 303 ; Van Zant v. Gobi, 10 id. 348. Section 272 of the Code has reference only to the trial of issues before referees ; and the provisions of that section, as to the powers of referees to punish for contempts, etc., and to amend the pleadings and summons, are not • applicable to mere inter- locutory references. McCrackan v. Valentine, 9 N. Y. (5 Seld.) 42. As a general rule, the facts and issues established by the interlocutory decision and order are to be taken as conclusive by the referee, for the purposes of the reference. lb. ; 1 Van Sant. Eq. Pr. 523. e. Change of referee. A matter once referred cannot' be with- drawn from the referee named without an order of the court ; and such an order will not be made unless on very special occa- sions, such as the incapacity of the referee from illness, to attend to the business, or other cause of an urgent nature sufficient to justify a removal. 2 Dan. Eq. Pr. 1168 ; 1 Van Sant. Eq. Pr. 524. Unreasonable delay on the part of the referee in proceed- ing with the reference, or granting an adjournment for an unrea- sonable length of time against the wish of one of the parties, has been considered good cause for substituting another referee with directions to proceed with the reference. Forrest v. Forrest, 3 Bosw. 650. /. Fixing time and place of hearing. It is the usual and proper practice for the referee to appoint in writing a time and place for the hearing of the cause, a copy of which should be served with or before the notice of hearing. Sage v.Mosher, 17 How. 367. See Stephens v. Strong, 8 id. 339. And the same thing was required to be done by the rules of the old court of chancery. Chancery, Rule 100. Under the former practice, it was held irregular for the master to issue a summons to proceed with the reference until the de- cretal order was actually entered and an authenticated copy brought into his office (QuacJcenbush v. Leonard, 10 Paige, 131) ; but the actual service of a copy of the order, however, is now frequently omitted in practice until the hearing. This practice is, however, erroneous. No referee should proceed a step in' the exercise of his duties without a certified copy of the rule or order appointing him. Bonner v. McPhail, 31 Barb. 106. The time fixed for the reference is usually sufficient to enable INTERLOCUTORY OR DECRETAL ORDERS. 351 Parties, how brought before referee. the party prosecuting the reference to give the ordinary notice of eight days, unless the adverse party is brought before the referee by summons, in which case it may be a shorter time. By the rules of the former practice, the time fixed could not have been less than two days, where the solicitor of the adverse party resided in the place where the hearing was to be had, and not less than four days where he resided elsewhere, not exceed- ing fifty miles from the place of hearing, nor less than six days if over fifty and not exceeding one hundred miles ; and where he resided more than one hundred miles from the place of. hearing, not less than eight days, unless a shorter time is fixed in the order of reference. Chancery, Rule 100. If the place of reference is not fixed in the prder, it is usually appointed in the county where the referee resides, . or in which the action is triable, though a party cannot insist that it shall be held there by virtue of any rule of the court. In cases, however, where a reference is ordered on failure of the defendant to answer, it must be held in the county where the action is triable, unless the court otherwise order. Sup. Ct., Rule 33. Both time and place may be fixed by the referee in the summons which he issues to the parties to attend. 1 Van Sant. Eq. Pr. 525. g. Parties, how brought before referee. Formerly, parties were, in all cases, brought before a referee by means of a sum- mons or warrant. The summons was a paper entitled in the cause and signed by the master, appointing a time and place for the parties concerned to attend him, and containing, by means of an underwriting or memorandum, a general statement of the subject of the reference. 2 Dan. Eq. Pr. 1170. A direction was indorsed upon it by the master, stating the length of time that the summons should be served on the adverse party. Service upon the party was not necessary, but personal service upon the solicitor was sufficient, even for the purpose of bringing the party into contempt for disobeying the summons. Merritt v. Annan, 7 Paige, 151. Though this is doubtless the correct prac- tice to be pursued in all cases, it is not uncommon for a party prosecuting an interlocutory reference to obtain from the referee a simple appointment of the time and place, and thereupon to serve an ordinary notice of hearing upon the adverse attorney, and, in case of his failure to attend, to proceed with the reference ex parte, unless the testimony of the party himself is required upon such hearing, in which case a summons by the referee must 352 INTERLOCUTORY OR DECRETAL ORDERS. Who to prosecute the order of reference — What parties to attend, etc. be first issued in order to enforce his attendance. 1 Yan Sant. Eq. Pr. 525. And, under the former practice, the master might proceed ex parte, if he thought it expedient, where the parties, or some of them, neglected to attend after service of the sum- mons ; and such proceedings were not to be reviewed by him, unless, upon* a special application by the party who was absent, the master was satisfied that such party was not guilty of willful delay or negligence. Chancery, Rule 104. h. Who to prosecute the order of reference. Generally, the party obtaining a reference is entitled to the (prosecution thereof in the first instance, whether plaintiff or defendant ; but, where both parties are interested, the plaintiff is, in the first instance, entitled to the prosecution. QuacJceribush v. Leonard, 10 Paige, 131. Under the former practice in chancery, if the party entitled to prosecute the order neglected to do so ; that is, if he did not procure and serve the summons within thirty days after the entry of the order, any other party or person interested in the matter of the reference was at liberty to apply to the court, by motion or petition, to expedite the proceedings, and on such motion to have the prosecution of the reference committed to him. Chancery, Rule 101. Or, if the party neglected to pros- ecute the reference with due diligence after the proceedings were commenced by the service of the summons, the master was at liberty, upon the application of any other person inter- ested, either as a party to the suit, or as coming in to prove his debt, or to establish a claim under the decree or order, to commit to him the prosecution of the reference. In the latter case, notice to the complainant's solicitor must have been given of the application to the master, and of the papers on which it was founded ; or the party so applying should have delivered to the master the evidence of the complainant's neglect, and procured a summons for the adverse party, underwritten, to show cause why the prosecution of the order should not be taken from him and committed to the applicant. Quackenbush v. Leonard, 10 Paige, 131; Holley v. Glover, 9 id. 7; Chancery, Rule 101; Powell v. Wallworth, 2 Mad. 183. The same practice, it is thought, may be properly pursued at present, as the Code con- tains no provisions inconsistent therewith. i. What parties to attend, and what notice to them. The for- mal proceedings regulating the reference as to what parties were INTERLOCUTORY OR DECRETAL ORDERS. 353 Adjournments — Compelling parties and witnesses to attend. entitled to attend, are not observed under the present practice, and the general rule is to allow all parties to the action who have an interest or claim in the controversy to attend all proceedings on such references. All the parties who have appeared are en- titled to notice, either by summons or the service of a notice of hearing ; and the referee may, in his discretion, direct such other parties as he thinks are properly entitled to it, to be notified of the proceedings. 1 Van Sant. Eq. Pr. 527. j. Adjournments. The proceedings before the referee may be from day to day, or by adjournment from time to time, as the ■referee may think proper ; and such was also the former prac- tice in chancery. 1 Barb. Ch. Pr. 477. Such adjournment, however, must not be for an unreasonable length of time. For- est v. Forest, 3 Bosw. 650. The fact that adjournments by a referee are not formally made from one hearing to another does not render the proceedings irregular, if both parties gave all the testimony they desired, and submitted the cause on such testi- mony. Accessory Transit Co. v. Garrison, 9 Abb. 141 ; S. C, 18 How. 1. Tc. Compelling parties and witnesses to attend. Where it becomes necessary to have the evidence of the parties, or any of them, on a hearing directed by an interlocutory order, the attend- ance of such parties can be compelled only by the- service of a summons ; and under the general provisions of the Revised Statutes; the referee is authorized as an officer of the court, in case the summons be not obeyed, to issue his warrant and bring in the defaulting party. 2 R. S. 401 (417), § 46. See Bleeclcer v. Carroll, 2 Abb. 82 ; Leeds v. Brown, 5 id. 418 ; People v. Butcher, 3 Abb. N. S. 151. Section 390 of the Code provides that " a party to an action may be examined as a witness, at the instance of the adverse party, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other' witness, to testify, either at the trial, or conditionally, or upon commis- sion." The same mode of proceeding should, therefore, be adopted to procure the attendance and testimony of a party, at the hearing of the reference, as is pursued to procure the attend- ance and testimony of a party before a judge on an examina- tion before trial. Witnesses, other than parties, may be required to attend before the referee in the same manner as upon a trial, namely, by the service of a subpoena, and in case of disobedi- Vol. III. — 45 354 INTERLOCUTORY OE DECRETAL ORDERS. Compelling production of documents — Evidence. ence a motion to the court may be made to attach the witness and punish him for contempt. I. Compelling production of documents. The proper mode of proceeding to enforce the production of documents on a refer- ence of this nature, in analogy to the former practice in chancery, would be for the referee to issue his summons to the party or witness, in the usual form, underwritten to the following effect : "At which time and place you are required to produce before me all such deeds, books and papers as are in your custody or power, relating to the matters referred to me." Should any par- ticular document be required, it should be referred to in the underwriting. 1 Barb. Ch. Pr. 481. The mode of enforcing obedience to the order requiring tlie production of documents, under the former chancery practice, was by application to the court for process of contempt, as in other cases. Under the Code a party may, at the instance of an adverse party, not only be compelled to attend and submit to a personal examination, but may also be required to produce books and papers, the same as any other witness ; and a witness' when properly subpoenaed, is as much bound to produce books and papers in his possession as to testify orally, and his neglect in either case will be treated as a contempt. Bonesteel v. Lynde, 8 How. 226 ; Carighe v. LoscTie, 6 Abb. 284, note ; 14 How. 451 ; 6 Duer, 685 ; Central Nat. Bank of City of New York v. Arthur, 2 Sweeny, 194. m. ^Evidence. The same rules of evidence which govern the courts of law and of equity also regulate the proceedings before the referee ; and, as an inquiry directed by the court into a fact is in the nature of a new issue joined, what would be evidence in any other case will be evidence before the referee. Smith r. Althus, 11 Ves. 564. The parties in the action are, therefore, at liberty to make use of all the proceedings which are of record in the cause, whether they be pleadings or in the nature of evidence, such as the deposi- tions of witnesses, or affidavits which have been made use of or filed on former occasions. The pleadings, however, can be used only as admissions by the party on whose behalf they were filed, and not as evidence for or against any other party. Soare v. Johnstone, 2 Keen, 553 ; Kemp v. Wade, id. 686 ; Meyer v. Mon trior e, 9 Beav. 521. Nor can any evidence be given as to anv INTERLOCUTORY OR DECRETAL ORDERS. 355 Proceedings on reference to take accounts — How to proceed. issues in the pleadings which have been determined by the decis- ion of the court. McCrackan v. Valentine, 9 N. Y. (5 Seld.) 42. The witness is sworn by the referee, and examined first by the party calling him, and then cross-examined by the opposite party. The referee may also put to the witness such questions as he thinks proper. The examination is conducted viva voce, and the interrogatories put to the witness are such as suggest themselves at the time. On the conclusion of the examination, the testimony is read over to the witness, who may make any corrections he thinks proper, and then sign it, the referee adding his jurat in the usual form. Rule 39, Sup. Ct. ARTICLE III. PROCEEDINGS ON REFERENCE TO TAKE ACCOUNTS. Section 1. How to proceed. a. In general. , The proceedings on a reference to take ac- counts, as formerly conducted before a master in chancery, were regulated by the 107th chancery rule, which directed that "all parties accounting before a master shall bring in their accounts in the form of debtor and creditor ; and any of the other parties, who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party upon interroga- tories, as the master shall direct." On the revision of the chan- cery rules in 1837, the following was added to the above: "On any reference to take or state an account, the master shall be at liberty to allow interest as shall be just and equitable, without any special directions for that purpose, unless a contrary direc- tion is contained in the order of reference ; and every charge, discharge or state of facts brought in before a master shall be verified by oath as true, either positively or upon information and belief." Under this rule, the party accounting was required to bring in his whole account, and for the whole time for which he was accountable, as established by the interlocutory decision of the court, accompanied by an affidavit of the party that the account, including both debts and credits, is correct, and that he does not know of any error or omission therein to the prejudice of the other parties. Story v. Brown, 4 Paige, 112 ; Benson v. Le Roy, 1 id. 122. . It has been held, in the decision of a case in the New York 356 INTERLOCUTORY OR DECRETAL ORDERS. Proceedings on reference to take accounts — Form of account. superior court, that the rules and practice of the court of chancery on the subject of accounting, existing at the time of the adop- tion of the Code, are not inconsistent with any provision of that instrument, and that, consequently, by virtue of the provisions of section 469, they are still in force. Wiggin v. Gans, 4 Sand. 646. In the case cited, the defendant was ordered to bring in his account in the manner required by the 107th chan6ery rule above given, duly verified as above, and file it with the referee within ten days, in default,. of which the plaintiff might apply for an attachment. More recently the same rule has been recognized and acted upon by the supreme court. Ketchum v. Clark, 22 Barb. 319 ; Palmer v. Palmer, 13 How. 363. See Prevoort v. Warner, 8 How. 321. Although the rule is positive in directing the parties to bring in their accounts in the form of debtor and creditor, it is not always necessary to call upon them to do so. If sufficient ap- peared from the admissions of the party to be charged, or from any proceeding in the cause, to enable the account against him to be properly made out, the party conducting the proceedings might immediately bring in his charge, that is, the items on the debit side, without calling for any account under the 107th rule. 1 Barb. Ch. Pr. 505. So, under the present practice, although the parties have an undoubted right to demand a strict compli- ance' with the rule, its requirements in many cases of reference are dispensed with, and the referee proceeds to make up and state the account, merely from the papers, vouchers, and evi- dence produced before him. The cases in which references to take accounts are most fre- quently ordered are those of executors and administrators, or of guardians, assignees, or other trustees ; or in the winding up of partnership affairs, etc. b. Form of account. The account to be brought in by the accounting party is made up by stating on the debit side of the account, the property with which he is chargeable ; setting forth every sum which has come into his hands, the persons from whom, and the times when such sums were received. On the credit side should be set forth every sum paid, laid out, and ex- pended by the accounting party, and the persons to whom, pur- poses for which, and times when, such respective sum or sums were expended. The accounts in regard to the rents and profits INTERLOCUTORY OR DECRETAL ORDERS. 357 Form of account — Examining parties upon interrogatories. of real estate (if any) are to be made out in a similar manner in a separate account. 1 Barb. Ch. Pr. 506. If the party fails to bring in his account when required to do so by any person interested, an application may be made to the court on notice and motion, for an order requiring him to render and file it with the referee within a specified time, and, in de- fault, that an attachment issue. 1 Barb. Ch. Pr. 507 ; Wiggin v. Gans, 4 Sandf. 646. The following is the form of an account in the case of an executor directed to account for the personal estate and effects of the testator received by him, as given in works on chancery practice : {Title of cause.) The account of the defendant E. P. of the personal estate and effects of Gr. EL, deceased, the testator in the pleadings in this cause named, come to the hands of and received by the said de- fendant as executor of said testator, and of the disbursements and payments made by the said executor thereof : 1872. Dr. January 28. Cash found in testator' s dwelling-house at the time of his death $250 00 February 29. Cash received from the sale of ten shares of the capital stock of the Mechanics' Saving Bank, Troy 10,000 00 Etc., etc., etc. 1872. Cr. February 10. Cash paid to Mr. R., undertaker, as per bill furnished for funeral expenses $75 00 March 1. Cash paid surrogate as fees on probate of will 15 00 Etc., etc., etc. The affidavit annexed may be in substance as follows : Ftjlton County, ss : E F the executor of the last will and testament of G. H., deceased, the testator in the pleadings in this cause named, being duly sworn, says : That the foregoing account, including both debits and credits, is correct, and this deponent, the party ac- counting therein, does not know of any error or omission m said account to the prejudice of any of the other parties. Sworn, etc. ' " c. Examining parties upon interrogatories. It was the for- mer practice in chancery to examine the party accounting on written interrogatories previously prepared, which were designed 358 INTERLOCUTORY OR DECRETAL ORDERS. Proceedings upon accounting. "chiefly to sift the conscience of the party, and to obtain ad- missions from him." 1 Barb. Ch. Pr. 484. And the party so examined could give no testimony in his own favor any farther than his answers were considered fairly responsive to the inter- rogatories of the adverse party. Benson v. Le Roy, 1 Paige, 122. In the case of Wiggin v. Oans, 4 Sandf. 646, it was held, that a party accounting must still submit to be examined upon interrogatories, as directed by the 107th chancery rule, if re- quired to do so ; the decision being based upon the ground that, if such examination was not allowed in that form, the parties interested in the accounting would have no means of obtaining his testimony except to call him as an adverse party to testify under section 395 of the Code, in which case, by that section he might be examined as a witness on his own behalf, and thus prove all his own payments and discharges, which the court con- sidered manifestly unjust. Since the above decision, however, parties to actions and pro- ceedings have been allowed to testify generally, as witnesses in their own behalf (Code, § 398) ; and the reason, therefore, for the examination of an accounting party upon interrogatories can no longer exist, and the former practice in this respect must be regarded as no longer applicable on such references. d. Proceedings upon accounting. The party accounting hav- ing brought in his account duly verified, and the parties inter- ested having appeared at the time and place appointed for the hearing, the referee proceeds to take the proof offered by the party accounting in support of his discharges or payments. These he is required to vouch by producing receipts, etc., for the same ; and he must not only be prepared to vouch his pay- ments but must also establish the propriety of their having been made, if the same is disputed. 1 Barb. Ch. Pr. 510. In the English chancery practice, although, strictly speaking, every payment insisted upon in the discharge, where it amounts to forty shillings and upward, must be established by a proper voucher, sums under forty shillings may be substantiated by the oath of the accounting party, provided that, in his account, he mentions to whom, for what, and when the amounts were paid. Anonymous, 1 Vern. 283 ; MarsTifleld v. Weston, 2 id. 176 ; Everard v. Warren, 2 Ch. Cas. 249 ; Remsen v. Remsen, 2 Johns. Ch. 501. It was intimated by Chancellor Kent, in the latter case, that $20 in this State would not be, considered an INTERLOCUTORY OR DECRETAL ORDERS. 359 Proceedings upon an accounting — When allowances may be made. unreasonable substitute for the forty shillings sterling established in the early history of the court. It is provided by statute that, on the settlement of an account of an executor or administrator, he may be allowed any item of expenditure, not exceeding $20, for which no voucher is pro- duced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such pay- ment was made. But such allowance shall not, in the whole, exceed $500 for payments in behalf of any one estate. 2 R. S. 92 (95), § 55. Notwithstanding the general rule, requiring vouchers, a party accounting is sometimes allowed to discharge himself by other means. Thus, where the evidence produced to charge an ac- counting party consists of entries in books kept by the party himself, the party has a right to make use of entries in the same book in support of his discharge. Darston v. Earl of Oxford, 1 Eq. Cas. Abr. 10. And so, if a paper is produced by one of the parties, from which he takes his charge, the same paper may be read by the other party by way of discharge (Carter v. Lord Colrain, Barnardist, 126. See M. E. Qhurch v. Jaques, 3 Johns. Ch. 81 ; 2 Dan. Ch. Pr. 1228) ; and, when an account is of long, standing, the court will sometimes permit the accounting party to discharge-himself upon oath, of all such matters as he cannot prove by vouchers by reason of their loss. Peyton v. Green, 1 Ch. Rep. 146 ; Holtscomb v. Rivers, 1 Ch. Cas. 127. See Tur- ner v. Gorry, 5 Beav. 515 ; Millar v. Craig, 6 id. 433 ; KirJcman v. Booth, 11 id. 273 ; Allfrey v. Allfrey, 1 McN. & G. 87 ; 10 Beav. 353. e. What allowances may be made. In taking any account directed by a decretal order, the referee is authorized to allow the parties such disbursements as may appear to have been fairly and properly made by them. As to what may be considered just allowances, much must depend upon the circumstances of each case ; but it is a settled rule, that whatever a trustee or personal representative has expended in the fair execution of his trust may be allowed to him in passing his accounts. See Laws of 1858 ch. 314, § 3. Thus, where a trustee, in the fair execution of his trust, has expended money by reasonably and properly taking opinions, and procuring directions necessary to the due execution of his trust, he is entitled not only to his costs, but to. his charges and expenses under the head of just allowances. 360 INTERLOCUTORY OR DECRETAL ORDERS. When allowances may be made — Allowance of commissions. Fearns v. Young, 10 Ves. 184 ; Pettibone v. Stevens, 15 Conn. 19. And an executor or trustee, who requires the assistance of a solicitor or counsel in the execution of his trust, will be allowed the amount he has properly paid for such services. 1 Barb. Ch. Pr. 514. He will not, however, be allowed the costs of unsuc- cessful litigation which he has imprudently commenced. Cham- bers v. Smith, 2 Coll. 742. Where it is necessary to the due execution of their office that trustees, etc., should employ accountants, agents or receivers under them, they are entitled to be allowed the costs of such agents, etc. Vanderheyden v. Vanderheyden, 2 Paige, 287. The expenses of a sale may also be allowed under the head of just allowances. Crump v. Baker, 18 Ves. 285. Necessary disbursements in traveling, expenses for carriage and horse hire, and other personal expenses, are frequently al- lowed on the accounting of trustees, executors, etc., under the head of "just allowances," but they cannot receive for their ser- vices or for loss of time any greater compensation than the stat- ute commissions, however meritorious those services may be. Thus, one of the executors of a will, who is an attorney and counselor at law, will not be allowed any fees whatever from the estate for professionally defending and conducting an action brought against the estate, although requested by- his co-exec- utors to appear in such action and undertake such defense with a promise of compensation, and although the legatees and next of kin united in such request. Collier v. Munn, 41 IS". Y. (2 Hand) 143 ; S. C, 7 Abb. 1ST. S. 193 ; Vanderheyden v. Van- derheyden, 2 Paige, 287. See Morgan v. Morgan, 39 Barb. 20 ; Lansing v. Lansing, 45 id. 182; S. C, 31 How. 55; 1 Abb. N. S. 280 ; Oilman v. Oilman, 2 Lans. 1. Nor will the court allow any thing to be placed to account under the name of gen- eral expenses, but the party accounting must prove the particular items. Anonymous, 1 Eq. Cas. Abr. 11. Thus, the allowance of a sum in gross in an administration account, without items or ex- planations, is improper. Swan v. Wheeler, 4 Day, 137. See Field v. Hitchcock, 14 Pick. 405. /. Allowance of commissions. The allowance of commissions to executors or administrators in the settlement of their accounts is thus prescribed by statute : Five per cent on all sums received, and the same on all sums disbursed or paid out by them, on an account not exceeding $1,000 ; two and one-half per cent on all INTERLOCUTORY OR DECRETAL ORDERS. 361 Allowing and computing interest. sums received, and the same on sums disbursed, beyond $1,000 and not amounting to $10,000, and one per cent on all sums ex- ceeding $10,000. 2 R. S. 93 (95), § 58 ; Laws of 1863, ch. 362. Guardians, committees of lunatics and other trustees are also entitled to the same commissions or compensations for services. Vanderheyden v. Vanderheyden, 2 Paige, 287 ; King v. Talbot, 40 N. Y. (1 Hand) 77, 96 ; Meacham v. Sternes, 9 Paige, 398 ; Cowing v. Howard, 46 Barb. 579. It becomes the duty, there- fore, of the referee, to ascertain and determine the proper amount of commissions to be allowed to the party accounting, and to credit him with it in taking and stating his accounts. g. Allowing and computing interest. On a reference to take or state an account, the master (referee) shall be at liberty to allow interest as shall be just and equitable, without any special directions for that purpose, unless a contrary direction is con- tained in the order of reference. Chancery, Rule 107. In the allowance or disallowance of interest, and in making rests in the account, the referee usually follows the established principles of law and equity. With respect to a debt due on a bond, the rule is to calculate interest up to the amount of the penalty of the bond (Sharpe v. Earl of Scarborough, 3 Ves. 557) ; beyond which amount the referee cannot go (Clarice v. Seton, 6 Ves. 411 ; but see Mower v. Kip, 6 Paige, 89), unless the creditor claims upon two securities for the same sum, one of which is a bond with a penalty, and the other a mortgage. In such a case the interest may be calcu- lated beyond the penalty of the bond. Clarke v. Lord Abingdon, 17 Ves. 106. As to debts upon simple contract, and other debts which do not carry interest on the face of them, equity in giving interest follows the rules of law, and the court will allow interest to be computed, in the administration of assets, upon all debts on which interest is given by courts of law. Parker v. Hutchin- son, 3 Ves. 135 ; Upton v. Lord Ferrers, 5 id. 803 ; Lowndes v. Collens, 17 id. 29 ; 1 Barb. Ch. Pr. 515. Thus, the balance due Upon a stated account between the parties will carry interest. Barwell v. Parker, 2 Ves. 363. But, as a general rule, a charge of debts on real estate does not entitle simple contract creditors to interest. Karl of Bath v Earl of Bradford, 2 Ves. 588 ; Barwell v. Parker, id. 363 ; Lloyd v. Williams, 2 Atk. 109. Interest ia never computed on Vol. Ill — 46 362 INTERLOCUTORY OR DECRETAL ORDERS. Allowing and computing interest. debts not previously carrying interest (Creuze v. Hunter, 2 Ves. 165) ; and in computing subsequent interest on the debts which carry interest, although it was formerly held that the interest, when computed by the master, became principal and would carry interest, the rule now is not to compute interest upon interest reported to be due, even in the case of a mortgage ( Whatton v. Oradock, 1 Keen, 267) ; though the practice for- merly was, to consider the interest as principal from the date of master's report (Turner v. Turner, 1 Jac. & W. 47), on the ground that, as the party came for the favor of the court, he was ordered to pay a given sum on a certain day, and, if he did not, he was put under terms of paying what would indemnify the other party completely. Turner v. Turner, 1 Jac. & W. 47 ; 2 Dan. Ch. Pr. 1259. See Hunn v. Norton, 1 Hopk. 344. When the interest is ordered to be computed with rests, the object of the court is to charge the accounting party with com- pound interest, and the proper course is, to add the interest to the principal, at the time of the rest, and to compute interest upon the aggregate sum. Raphael v. Boehm, 11 Ves. 97 ; King v. Talbot, 40 TS. Y. (1 Hand) 76. It was the rule, under the former practice, that the master wa3 not at liberty to make rests in the account, unless directed so to do by the decree ( Webber v. Hunt, 1 Mad. 13) ; and the correct rule of practice still seems to be, that, on a mere refer- ence to take an account, the referee is not at liberty to make rests, and compute compound interest, without some special direction or authority given in the order of reference. 1 Van Sant. Eq. Pr. 540. See King v. Talbot, 40 IS. Y. (1 Hand) 76, 80 ; S. C. below, 50 Barb. 453. When the accounting is completed, the charge and discharge, that is, the statement of items of debit and credit, are usually attached to the report in the form of schedules, and are the sources from which the referee ascertains the balance. 1 Barb. Ch. Pr. 513. The following is a general form for an interlocutory order for an accounting : Order for an aceounting. At a special term of the supreme court held for the State of New Yo'rk at the city hall, in the city of Albany, on , A. D. 187 . Present : Hon. A. B., Justice. INTERLOCUTORY OR DECRETAL ORDERS. 363 Order for an accounting — Proceedings on reference to make inquiries. {Title of cause.) This action having been brought on to be heard, and the court having. duly considered the pleadings, proofs and arguments herein, it is ordered and adjudged that it be referred to E. B., of , as referee, to take a mutual account of all dealings and transactions between the plaintiff and defendant in this action ; for the better elucidation of said accounts, the said par- ties are required to produce before said referee, upon oath, all deeds, books, papers and writings, in their custody or power relating thereto ; and the said parties are to be examined, as the said referee shall direct, in all matters touching said deeds, papers, books and accounts ; and the said referee, in taking such accounts, shall make unto the parties all just allow- ances, and what, upon the balance of said account, "shall ap- pear to be due from either party to the other, is to be paid as the said referee shall direct. And this court reserves the con- sideration of the costs of this action, and of all further directions, until after the said referee shall have made his report, when either party is to be at liberty to apply to the court as occasion shall require. ARTICLE IV. PROCEEDINGS ON REFERENCE TO MAKE INQUIRIES. Section 1. How to proceed. a. In general. Inquiries, before decree or judgment, are usually directed either in relation to persons or to facts, though sometimes they are directed as to matters of law, in cases where questions of law are so mixed up with the fact to be ascertained that it is not possible to decide upon the one without giving an opinion as to the others. In such cases the master (referee) is bound to give his opinion upon the law, as well as upon the matter of fact, referred to him. 2 Dan. Ch. Pr. 1203. _ _ o Inquiries as to persons. The cases in which inquiries are most usually directed as to persons are those in which it is neces- sary to ascertain the heir at law or next of kin of a deceased person, or to ascertain individuals forming a particular class, such as grandchildren, or cousins of a person deceased, * or per- sons entitled to a particular fund, etc. Good v. Blewztt, 19 Ves. 336. A similar inquiry is also necessary where, on the reference an account of the debts due by a particular individual are directed to be taken ; such account involving necessarily an inquiry who the creditors are, as well as into the amount of their claims. 1 Barb. Ch. Pr. 517. 364 IMTERLOCUTORY OR DECRETAL ORDERS. . \ Proceedings on reference to make inquiries. In all these cases the interlocutory, or decretal order, usually specifies the mode in which the inquiries are to be prosecuted, as, for example, that the referee cause an advertisement to be published that such heirs, or other persons, come in by a day appointed and prove or establish their claims, in default of which they are to be excluded from the benefit of the decree. 2 Dan. Ch. Pr. 1203-4. This advertisement is drawn up and signed by the referee, and published in such papers as may be directed by the decree ; and it is usual, also, to have a copy of it inserted in one or more of the newspapers published near the place where the testator resided. The parties claiming should appear before the referee on the day, and at the place named, and establish their claims. But, it seems, notwithstanding this peremptory direction, the referee may let them in afterward, and at any time before his report is made and filed, upon their showing a suffi- cient excuse for not coming in, and upon payment of all the costs produced by the delay. Wilder v. Keeler, 3 Paige, 164. After the filing of the referee's report, their application to be let in must be made to the court ; and such application, it seems, may be made at any time, so long as there is a fund in court un- apportioned, and in which the parties are interested. LasTiley v. Hogg, 11 Ves. 602 ; Hartwell v. Colvin, 16 Beav. 140 ; Pratt v. Hathbun, 7 Paige, 271. This mode of procedure by a creditor or other claimant, desir- ous of coming in after a report has been made, is by petition to the court, stating his reason for not having come in within the time limited by the advertisement, and praying to be at liberty now to establish his claim. The petition must be supported by the affidavit of the claimant, and must be served on the parties to the cause. 2 Dan. Ch. Pr. 1205. The claimant must also be able to prove that he has not been guilty of laches. Cattell v. Simons, 8 Beav. 243. The other terms and conditions upon which he will be allowed to come in will, of course, depend upon the circumstances of each particular case ; and, if it be a proper one, the court will make an order, referring it back to the referee, to make the inquiries. It may be proper to notice here that the course of proceeding by advertisement, requiring persons having claims to come in under a decree, is resorted to only where it is unknown who all the parties are ; for, if all the persons who have, or who claim, an interest in the controversy are known, they must be made INTERLOCUTORY OR DECRETAL ORDERS. 365 Proceedings on reference to make inquiries. parties, and the court will cause them to be brought in (Code, § 122 ; Davis & Palmer v. The Mayor, etc., of the City of New YorTc, 2 Duer, 663 ; Shaver v. Brainard, 29 Barb. 25) ; and in such case the proceeding as above is never proper. Accordingly, where a reference is ordered to take an account of the legacies or annuities given by a will, the legatees or annuitants appearing by the will itself, no direction in the order to advertise for them to come in is necessary, unless the legacy is given to persons con- stituting a class, in which case it may be necessary to ascertain by advertisement who the persons constituting the class are. 1 Barb. Ch. Pr. 519. In making his report, it is not usual for the referee to notice any creditors, except those who come in under the decretal order. He merely states the names of the parties who have appeared and established their interest, and the claims which have been proved, taking no notice of the possible claims of others, who, whether entitled or not, did not come in. Good v. Blewitt, 19 Ves. 336 ; 2 Dan. Ch. Pr. 1206. Where a person, who has not come in under a decree, seeks to compel those who have been benefited by the distribution, which has taken place under the decree, to refund, he cannot proceed against one only for the whole amount of his demand, but must proceed against them all, in order that they may all be compelled to contribute in proportion to what they have received. David v. Frowd, 1 M. & K. 200. c. Inquiries as to fact. The cases in which a reference may be directed for the purpose of making inquiries into facts are very numerous, and so diversified in their nature that it is im- possible to point out all the rules in accordance with which each inquiry is to be pursued before the referee. Inquiries of this nature have reference to titles, claims, the situation, description and boundaries of real estate, the existence and priorities of liens and incumbrances, etc.; and although, in some of these cases, the proceedings on the reference are subsequent to, and conse- quent upon, final judgment, yet, in their general features, they are similar to other references of this kind, and may properly be considered in the same connection. d Inquiries as to titles, liens, etc. References to inquire as to the title to property in question in the cause are principally made in actions for the specific performance of contracts, or agreements for the sale or purchase of real estate (McComb v. 366 INTERLOCUTORY OR DECRETAL ORDERS. Inquiries as to title. WrigM, 4 Johns. Ch. 659) ; and, as they are in the nature of a preliminary inquiry, they must be directed by an interlocutory order. 2 Dan. Ch. Pr. 1215. Inquiries into titles, however, are not confined to actions for the specific performance of contracts, but may also occur incidentally in actions having other objects, as, for example, in a partition suit, as regulated by the provisions of the present rule3 of the supreme court. Rules 79 and 80. The inquiry under the 80th rule is an inquiry directed both as to persons and/acts, the referee being required not only to take proof of the title and inquire into the situation of the property, for the purpose of ascertaining if it can be actually partitioned, but he is also to ascertain and report as to the claims of creditors, not parties to the suit, in the shape of specific or general liens upon the premises. This being absolutely required by statute, can in no case be dispensed with. 2 R. S. 324 (333), § 53 ; Wilde v. Jenkins, 4 Paige, 481; 1 Van Sant. Eq. Pr. 543. To accom- plish this, the referee proceeds as previously noticed, by adver- tisement for six weeks in the State paper, and also in a news- paper printed in each county in which the lands are situated, as required by the provisions of the statute. 2 R. S. 324 (334), § 44. For full proceedings upon a partition reference, see Partition. Upon an inquiry as to title, it is not necessary to carry in a state of facts ; but the referee proceeds upon the abstract, usually furnished for his use by the party charged with the conduct of the reference. Such party also causes the necessary searches to be made, and lays before the referee the proper certificates of search, title, deeds, etc. If no abstract has been delivered, an application may, if necessary, be made to the court, by motion, that the vendor's attorney may deliver one to the purchaser's attorney. 1 Barb. Ch. Pr. 520. On litigated questions of title, written objections to the abstract are brought in by the party objecting, and the referee is either attended by counsel on both sides, or the written opin- ions of counsel upon the abstract are produced to him, accord- ing to circumstances. In cases of difficulty the referee may also direct the abstract to be laid before a conveyancer for his opinion. Flower v. Walker, 1 Russ. 408 ; 1 Barb. Ch. Pr. 520. The referee may summon witnesses and examine them, as in other cases, in regard to deaths, intestacy, descent, and such other facts as may be necessary, bearing upon the question before him. If he is satisfied with the title, as shown by the INTERLOCUTORY OR DECRETAL ORDERS. 367 Inquiries as to title — Reference in divorce cases. vendor, he reports accordingly ; but, if he is not satisfied with the title, he must state the points wherein it is defective. Green v. Monies, 2 Molloy, 325. The mere circumstance that since the contract a suit has been instituted by other parties, and is pend- ing, in which part of the lands are claimed adversely to the vendor, is not a sufficient ground for reporting against a. title. Obaldiston v. Asken, 1 Russ. 219. The nature of the adverse claim, however, should be examined on the inquiry. 2 Dan. Ch. Pr. 1217. Where the title is reported defective, the purchaser cannot insist upon being discharged, if the title is capable of being made good within a reasonable time. Coffin v. Cooper, 14 Ves. 205. But the rule is otherwise, when it appears that the pur- chaser will have to wait a long time. WMttaker v. Wliittaker, 4 Bro. C. C. 31 ; Coffin v. Cooper, 14 Ves. 205. If, after the referee has reported in favor of a title, any new fact appears by which the title is affected, the court will refer it back to the referee, upon motion, even after the report has been confirmed. Jeud- wine v. Alcock, 1 Mad. 597. So, if the referee reports in favor of the title, but, upon exceptions, the court thinks the evidence insufficient, it will, upon the application of the vendor, refer it back to the referee to review his report, so as to enable the vendor to produce further evidence. Andrew v. Andrew, 3 Sim. 390. So where it appears, at the hearing of exceptions to a report against a title, that a vendor can clear up the objections, the court will sometimes send the title back to the referee to review his report. 1 Barb. Ch. Pr. 521. But, after exceptions are taken to the report that a good title can be made, and are overruled, other objections to the title cannot be made. If, however, excep- tions are allowed and a new abstract of title is delivered, further objections may, as a matter of course, be brought in. Brooke v . . 4 Mad. 212. See Fildes v. Hooker, 3 Mad. 193. A title will be considered to be complete whenever it appears that, upon certain acts being done by persons whom the vendor has the means of compelling to concur, the legal estate will be in the purchaser. Lord Braylrooke v. InsMp, 8 Ves. 436 ; Lewin v. Quest, 1 Russ. 325. e Reference in divorce cases. The purposes for which an interlocutory decree may direct a reference in divorce cases, and the manner of proceeding on such references, has already been briefly noticed. Ante, 345, art. 1, § 1, g. The proceedings are 368 INTERLOCUTORY OR DECRETAL ORDERS. Claim to surplus money on a foreclosure sale. similar to those in other cases where a reference is directed to make inquiries as to facts. See Divorce. f. Reference as to claims. A reference of this nature may be ordered by interlocutory decree, either before final judgment, or subsequent thereto. The purposes for which such a reference may become necessary, and the manner of proceeding thereon, have already been noticed. Ante, 343, 344, art. 1, § 1, e. g. Claim to surplus money on a foreclosure sale. A refer- ence, for the purpose of determining the disposition of surplus moneys arising in an action of foreclosure, is a proceeding sub- sequent to final judgment, and after the filing of the report of sale. The practice on such a reference is at present regulated by the provisions of the 77th rule of the supreme court, and differs but slightly from the former practice in chancery, as prescribed by chancery rule 136. By rule 73 of the supreme court it is provided that "All sur- plus moneys arising from the sale of mortgaged premises, under any judgment, shall be paid by the sheriff or referee making the sale, within five days after the same shall be received and be ascertainable ; in the city of New York to the chamberlain of said city, and in the other counties to the treasurer thereof, un- less 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, and showing that they have been paid over, deposited or disposed of in pursuance of the judgment." The practice thereon is thus regulated by rule 77 of the supreme court as above noticed: "On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk where the report of sale is filed, a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, may have an order of refer- ence, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon ; to the end that, on the coming in and confirmation of the report, on such reference, such further order may be made for the distribution of such surplus moneys as may be just. Every party who ap- INTERLOCUTORY OR DECRETAL ORDERS. 369 Order of reference as to surplus moneys. peared in the cause, or who shall have filed such notice with the clerk previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of sub- sequent proceedings relative to such surplus. But if such claim- ant has not appeared or made his claim by an attorney of this court, the notice may be served by putting the same in the post- office, directed to the claimant at his place of residence, as stated in the notice of his claim." Under the former chancery rule (136) the order of reference was allowed as of course ; but it will be seen by the provisions of the present rule that application must be made to the court on notice to every party who has appeared in the cause, and also to every person who has filed a notice of claim with the clerk, to attend on such reference. This may be the usual eight days' notice, and it will be sufficient for the claimant merely to refer to the statement of his claim on file with the clerk, without serv- ing any copy of such statement with the notice. Order of reference as to surplus moneys. At a special term of the supreme court, held for the State of New York at the city hall, in the city of Albany, on , A. D. 1872. Present, Hon. Platt Pottek, Justice. (Title of cause.) / The referee's (or sheriff's) report of sale having been filed in this action, and the same having been confirmed, from which it appears that there is a surplus paid into court arising from the said sale ; on reading and filing affidavit and notice of claim by G. D., to such surplus moneys or some part thereof, by virtue of a lien thereon under a junior mortgage (or a judainent against, etc.), given by the defendant, E P.; on motion of C. B K. of counsellor the said G. D., it is ordered that it be referred to R B S of, etc., counselor at law, as are feree to ascertain and report the amount due the said G.D., or to any other person, which is a lien upon such surplus moneys, and as to the priori- ties of the several liens thereon. And it is further ordered, that such refferee summon before him on the reference every party who hfsTppeaSd in this action, and every person who has de- lTveredwSn notice of his claim to such surplus moneys, and tLtherausethemto have the usual notice of all subsequent S^S^Sport thereon with all convenient speed. Vol. III.— 47 370 INTERLOCUTORY OR DECRETAL ORDERS. Order of reference as to surplus moneys. The referee is appointed by the court, and the proceedings on the reference are conducted in a manner similar to proceedings in other cases of interlocutory references. See ante, art. 2. Before proceeding to make his report as to such surplus mon- eys, the referee should ascertain by the certificate of the clerk, or other evidence, that all claimants and other proper parties have been notified or summoned to attend before him on such, reference ; and the fact that such certificate or evidence was pro- duced before him should be stated in the report. Hulbert v. McKay, 8 Paige, 651 ; Franklin v. Van CotL 11 id. 129 ; S. C, 3 N. Y. Leg. Obs. 162. The plaintiff in a foreclosure suit is not required to establish beforehand all the claims he may have upon the mortgaged premises ; but he has the same right to present and establish a claim to the surplus moneys as a defendant in such suit, or any other person. Field v. Hawxhurst, 9 How. 75. Parties, or other claimants, upon a reference as to surplus moneys, must verify their claims in the same manner as credit- ors coming in under a decree are required to do ; and the referee may examine the claimants upon oath touching their respective claims. Hulbert v. McKay, 8 Paige, 651. An incumbrancer, who has neglected to file his claim, may go before the referee pending the reference as to such surplus, and file his claim with him duly verified ; and he will then be enti- tled to be heard upon the reference as to the validity of such claim, upon such equitable terms as to costs as the referee shall direct. lb. The priorities of the several liens must be established before the referee, and the facts found as to such priorities must be stated in his report. The liens referred to in the above rule (77 of the supreme court) are absolute liens only, as distinguished from equitable claims not matured into liens. Husted v. DaMn, 17 Abb. 137. And it has been held that claims, however equita- ble, which are not matured into liens under which the property can be charged in execution and sold without further adjudica- tion, cannot be taken into consideration by the referee. King v. West, 10 How. 333 ; Busted v. DaMn, 17 Abb. 137. See Mutual Life Ins. Co. of New York v. Bowen, 47 Barb. 618. In regard to the costs of the proceeding, the rules of the court are silent ; but, if allowed at all, they are allowed by the court on the motion to confirm the report and distribute the surplus, INTERLOCUTORY OR DECRETAL ORDERS. 371 Proceedings on reference to sell estates or adjust matters before final judgment. and not by the referee. 1 Van Sant. Eq. Pr. 549. Under the former practice, which is probably still followed, the rule was, that a party to the suit, if a creditor, was allowed the costs of carrying in and supporting his charge ; but a creditor, who was not a party to the suit, must bear the expense of carrying in his own charge. And, under special circumstances, the court even refused to allow such a creditor the expense of proving his charge {AMI v. Screech, 10 Ves. 355, 359 ; 1 Barb. Ch. Pr. 525) ; but, it seems, this was so, only where there would still remain a surplus of a fund to be distributed among other parties. lb. Where the fund was wholly divisible among the creditors, they would be allowed the costs of proving their debts ; and it was held, that where the proof made by the creditor is beneficial to the estate, as where he saves by it the expense of a suit, and has incurred considerable extraordinary costs, he ought to be allowed the same. Harvey v. Harvey, 6 Mad. 91. The report of the referee, as to the distribution of surplus moneys, is made, filed, and may be excepted to or confirmed, as in other cases. 1 Van Sant. Eq. Pr. 549. See Foreclosure. ARTICLE V. PROCEEDINGS OX REFERENCE TO SELL ESTATES OK ADJUST MATTERS BEFORE EIXAL JUDGMENT. Section 1. How to proceed. a. In general. The object of an interlocutory reference em- braced in the class under consideration in the present chapter is to have some act done relative to the disposition of the property in dispute, or in respect to the subject-mater of the suit, or the parties thereto, as, for example, the partition and division of estates and the sale of real property, the settlement of deeds, appointment of new trustees, etc., which are 'necessarily required - to be done oefore final judgment can be rendered upon the whole controversy. b Partition and division of real estate. The proceedings on a reference, for the partition and division of real estate, are regulated by the provisions of the Revised Statutes (2 R. S. 321, 330) which, by section 448 of the Code, are made applicable to such cases. These proceedings have already been noticed {ante, 346, art. 1, § 1, h), and see Partition, where the matter is fully discussed. 372 INTERLOCUTORY OR DECRETAL ORDERS. Sale of real estate — Time, place and notice of sale. c. Sale of real estate. Formerly, a sale of real estate, under a decree or interlocutory order, was made by a master in chan- cery ; the sale being conducted either by the master himself, or by an auctioneer or some person employed by him for that pur- pose, in his presence and under his immediate direction. Heyer v. Deaves, 2 Johns. Ch. 154. The office of master in chancery, having been abolished by the constitution of 1846, it was soon afterward provided, that any matter before referred to a clerk, master or referee, might be referred to a clerk, county judge> etc. , or other suitable person or persons, with the same power as heretofore possessed by such officer or person. Judiciary Act of 1847, § 77. A sale and conveyance of real estate by a referee depended upon this section of the above act, and upon section 471 of the Code until 1851, when, by the amended Code of that year, section 287 was altered by adding the following clause: " Real property adjudged to be sold must be sold in the county in which it lies, by the sheriff of the county, or by a referee ap- pointed by the court for that purpose ; and thereupon the sheriff or referee must execute a conveyance to the purchaser ; which conveyance shall be effectual to pass the rights and interests of the parties adjudged to be sold." The addition of this clause to section 287 of the Code was probably made for the purpose of obviating any questions which might arise as to the power of the referee to sell, and his authority to do so may now be regarded as wholly free from doubt. See Jennings v. Jennings, 2 Abb. 6 ; Knickerbocker v. Eggleston, 3 How. 130. d. Time, place and notice of sale. The Code directs that sales must be made in the county in which the real estate lies, section 287 ; and rule 74 of the supreme court contains the following provisions respecting the time and notice of sale: "Where lands in the city of !S"ew York are sold under an order or judg- ment of any court, they shall be sold at public auction, between twelve o' clock at noon and three in the afternoon, unless other- wise specially directed. The notice of the sale of lands lying in any of the cities of this State,' in which a daily paper is printed, except where a different notice is required by law, or by the order of the court, shall be published in one or more of the daily papers of that city for three weeks immediately previous to the time of sale, at least twice in each week. When lands in any other part of the State are directed to be sold at auction, notice of the sale shall be given for the same time, and in the same INTERLOCUTORY OR DECRETAL ORDERS. 373 Time, place and notice of sale of real estate. manner as is required by law, on sales of real estate by sheriffs on execution." Such notice on sheriff's sales is thus prescribed by statute : "The time and place of holding the sale shall be publicly ad- vertised, previously, for six weeks successively as follows : "1. A written or printed notice thereof shall be fastened up in three public places in the town where such real estate shall be sold, and if such sale be in a town different from that in which the premises to be sold are situated, then such notice shall also be fastened up in three public places of the town in which the premises are situated. " 2. A copy of such notice shall be printed once in each week in a newspaper of such county, if there be one. "3. If there be no newspaper printed in such county, and the premises to be sold are not occupied by any person against whom the execution is issued, or by some person holding the same as tenant or purchaser under such person, then such notice shaU be published in the State paper, once in each week." 2 R. S. 369 (382), § 34. It is further provided, that in every such notice the real estate to be sold shall be described with common cer- tainty, by setting forth the name of the township or tract, and the number of the lot if there be any, and if there be none, by some other appropriate description. Id., § 35. The lands to be sold by the referee are usually described by metes and bounds in the decree or order of sale ; and in fore- closure judgments this is required to be done by the rule of the court. Sup. Ct., Rule 73. Such description should be followed in the notice of sale ; and the referee is not at liberty to insert further particulars in such notice for the purpose of unduly enhancing the value of the property or misleading the purchaser. Yeeder v. Fonda, 3 Paige, 94. Although not absolutely necessary, it is the proper practice to insert the title of the cause in the notice of sale ; which is usu- ally done by stating the name of the first plaintiff and of the first defendant at length, and by adding the words "and others where there are several plaintiffs or defendants. Bay v. Oliver, 6 Paige, 489. #il a It has been held to be a sufficient compliance with the require- ments of the statute, if the notice of sale be posted forty-two - days previous to the sale, and a copy of the same published m six successive numbers of a weekly newspaper, although the 374 INTERLOCUTORY OR DECRETAL ORDERS. Time, place and notice of sale of real estate. first publication may be. less than six weeks prior to the sale. Olcolt v. Robinson, 21 K Y. (7 Smith) 150 ; reversing S. C, 20 Barb. 148. See Wood v. Morehouse, 45 N. Y. (6 Hand) 368 ; 1 Lans. 405. And a notice of sale for the 28th of December, 1861, published on the 9th and 12th, on the 16th and 19th, and on the 23d and 26th of December, has been held sufficient to satisfy the rule of the court (74), which requires the notice of sale of lands, lying in any of the cities of this State, to be pub- lished " for three weeks immediately previous to the time of sale, at least twice in each week." Chamberlain v. Dempsey, 22 How. 356 ; S. O, 13 Abb. 421. And it has been held that the notice prescribed by rule 74 has no application to sales of lands in cities, in partition suits ; the rule being applicable only to those cases in which the statute has omitted to prescribe the duration of the notice, as upon foreclosure sales, or sales of the lands of infants or lunatics, etc. Romain v. McMillan, 5 How. 318. In an action of partition, where the plaintiff died, pending the advertisement of sale, and his heirs were substituted in his place, it was held unnecessary to advertise anew, changing the title of the cause. Thwing v. Thwing, 9 Abb. 323 ; S. C, 18 How. 458. But when the time for selling, pursuant to notice, has passed,, and no valid sale has been made, or, if valid, the party elects to disregard it, the officer cannot again sell without an order of the court, unless he again advertise the sale. Bick- nell v. Byrnes, 23 How. 486. As to all questions arising between the vendor and purchaser, the plaintiff ' s attorney is considered as the agent of all the par- ties to the action, and the proceedings on the sale are generally supervised by him. Dalby v. Pullen, 1 Russ. & My. 296. The notice of sale is usually drawn up and posted by the plaintiff's attorney; and he also prepares a statement of the conditions of sale, which is usually annexed to the notice. This statement should specify the terms and conditions of the sale, time of payment of the purchase-money, what amount is to be paid down, when and where the deed is to be delivered, whether there is to be any deduction for taxes and assessments, etc. ; but it need not describe the nature and situation of the property, that being fully done in the notice of sale, to which the state- ment is usually annexed. It is also prudent to state in the conditions of sale, that if the INTERLOCUTORY OR DECRETAL ORDERS. 375 Postponement — Mode of conducting sale of real estate. purchaser fails to comply with the terms of sale, by paying down the requisite portion of the purchase-money, a resale will take place immediately ; otherwise, if bidders leave the place of sale, under the supposition that the sale would be completed, and in default of its being so completed, the premises should be again put up and bid off for a less price, such second sale may be set aside. Lents v. Qraig, 13 How. 72 ; S. C, 2 Abb. 294. e. Postponement. The referee possesses a discretionary power to postpone the sale from time to time, either for want of bidders or for any other reasonable cause ; but where this discretionary power is arbitrarily exercised, or the referee acts unreasonably, the sale will be set aside and a re-sale ordered. Breese v. Busby, 13 How. 485. Neither the statutes nor the rules of the court contain any ex- press provision, requiring the day to which a postponement of a sale is made to be named ; but it is, undoubtedly, the general rule that such day, and the place of holding the postponed sale, should be specified at the time of the adjournment (La Farge v. Van Wagenen, 14 How. 54) ; and, if the adjournment be made for a sufficient length of time, notice of the postponement should be published, as well as posted in three public places, as required by the statute in case of the original notice. 1 Van Sant. Eq. Pr 555 f. Mode of conducting sale. It is the duty of the referee or person conducting the sale to attend at the time and place ap- pointed • and, after reading the notice of sale, including the description of the premises, to announce the terms and conditions of the sale. He must then offer the premises to the highest bid- der, and receive bids, so long as they are offered waiting a reas- onable time after a bid is made for another, and if no other is made, to strike off the premises to the highest bidder. BuXneU sold consist of several distinct lots or parcels, which can be sold epamSy without diminishing the value thereof on such sale, tEl be the duty of the sheriff, or other person conducting the r+i o!n the same in separate lots or parcels, unless otherwise S^S^T* the court. But if the sheriff, or other especially ^ ' property will produce a greater price if S^W t wi&Lte ,£ or parcel, ha may sell 376 INTERLOCUTORY OR DECRETAL ORDERS. Mode of conducting sale of real estate. it together, unless otherwise directed in the order of sale." Sup. ' Ct., Rule 75. The provisions of this rule, it will be observed, leave it in the discretion of the officer conducting the sale, to sell in parcels or together, as in his judgment will be most advantageous to the estate, notwithstanding the statute positively requires "distinct farms, tracts or lots to be sold separately." 2 R. S. 546 (566), § 6. It has been held, however, that the above provision of the statute is merely directory, and that a sale made in disregard of it is not void, but only voidable on application for relief within a reasonable time, by the party aggrieved ; and that such party may waive the irregularity of the sale by express ratification, or by neglect to move within a reasonable time. Cunningham v. Cassidy, 7 Abb. 183; S. O, 17 N". Y. (3 Smith) 276 ; Woods v. Monell, 1 Johns. Ch. 503 ; Ames v. Lockwood, 13 How. 555 ; Merchants' Ins. Go. v. Hinman, 3 Abb. 455. See Wells v. Wells, 47 Barb. 416 ; Wolcott v. Schenck, 23 How. 385 ; Ellsworth v. Lockwood, 42 E". Y. (3 Hand) 89 ; Sherman v. Willett, id. 146 ; Husted v. Dakin, 17 Abb. 137 ; Lamer son v. Martin, 8 Barb. 9 ; Oriswold v. Fowler, 4 Abb. 238 ; Griffith v. Hadley, .10 Bosw. 587 ; American Ins. Co. v. Oakley, 9 Paige, 259. Where the premises sold consist of two or more parcels, which had been previously held, used and conveyed together as one farm, a sale of the whole in one parcel is good. Anderson v. Austin, 34 Barb. 319. See Whitbeck v. Howe, 25 How. 403. Under the provisions of rule 73 the complainant, or any other party to the suit, may become the purchaser at a mortgage sale, the judgment or decree containing a clause to that effect; but the court will not permit a party, under such a judgment or de- cree, to conduct the sale. Domville v. Berrington, 2 Younge & Col. 724. If it be intended to give any owner of a reversionary or other interest in the land, who is a party to the record, the right to become a bidder at a sale of real estate, a provision to that effect should also be inserted in the order or judgment directing such sale. 1 Barb. Ch. 528. The plaintiff's attorney may bid off the property, and if he does so in his own name, the presumption is that the purchase was made on his own account. Chappell v. Dann, 21 Barb. 17. See Squier v. Morris, 1 Lans. 282. One defendant may become INTERLOCUTORY OR DECRETAL ORDERS. 377 Eesale of real estate, when ordered and how made. the purchaser of the real estate of a co-defendant {Neilson v. Neilson, 5 Barb. 565) ; and a person being the owner of land subject to a lien, and not being the debtor, may become the pur- chaser and acquire a title under the sale. Qhautauque County Bank v. Risley, 19 TS. Y. (5 Smith) 370. The sale is required to be held between the hours of 9 a. m. and the setting of the sun (2 R. S. 369), and a sale after sunset would be void. Carnrick v. Myers, 14 Barb. 9. g. Resale, when ordered and how made. A resale will be ordered in all cases where it would be unfair or.inequitable to allow the sale to stand ; as, for example, if the sale be conducted in such a manner as to prevent fair competition among bidders, {American Ins. Co. v. Oakley, 9 Paige, 259) ; or if it be made at an improper time {Brown v. Frost, 10 Paige, 243 ; King v. Piatt, 35 How. 23 ; S. C, 37 N. Y. (10 Tiff.) 155 ; 3 Abb. N. S. 434) ; or if there has been fraud or misconduct on the part of the pur- chaser {Billington v. Forces, 10 Paige, 487 ; Tripp v. Cook, 26 Wend. 143 ; Murdock v. Bmpie, 19 How. 79 ; 9 Abb. 283) ; or fraud- ulent negligence or misconduct on the part of any other person connected with the sale {Stahl v. Charles, 5 Abb. 348 ; Gould v. Gager, 18 id. 32 ; S. C, 24 How. 440). In all these cases the sale will be set aside, and a resale ordered by the court. Any per- son whose rights are injuriously affected by a judgment, or a sale of property under it, may move to set it aside, although he is not a party to the suit. Kellogg v. Howell, 62 Barb. 280. In granting the order for a resale, the court now, as formerly, acts upon the circumstances of each particular case ; and special circumstances must in all cases exist where the sale is not abso- lutely void, to justify ah order for a resale-. Lefevre v. Lara- way, 22 Barb. 167. Mere inadequacy of price is not a sufficient ground for order- ing a resale, unless the inadequacy is so great as to be evidence of unfairness or fraud in the sale. Kellogg v. Hoioell, 62 Barb. 280 ; American Ins. Go. v. Oakley, 9 Paige, 259 ; Murdock y Bmpie, 9 Abb. 283 ; S. C, 19 How. 79 ; Collier v. WJitpple, 13 Wend 224 ; Gould v. Gager, 24 How. 440 ; S. C, 18 Abb. 32. Neither will a resale be ordered upon a mere offer of an advance price. Lefevre r. Laraway, 22 Barb. 167. And where property is regularly advertised and fairly sold, a resale will not be directed for the benefit of parties interested in the proceeds of the sale, for the purpose of protecting them against the conse- Vot,. ITT. — ^« 378 INTERLOCUTORY OR DECRETAL ORDERS. Mode of applying for resale of real estate. quences of their own negligence, such parties being ad ults and competent to protect their own rights on the sale. The Ameri- can Ins. Co. v. Oakley, 9 Paige, 259. And if the sale is well attended and fairly conducted, it should not be set aside, even in the case of infants, unless it is made to appear that, upon a resale, their share of the proceeds, after indemnifying the purchaser at the first sale, will be materially increased. Merchants' Ins. Co. v. Hinman, 3 Abb. 455 ; Stry- ker v. Storm, 1 Abb. N. S. 424. Resales are ordered upon less evidence of fraud, surprise, accident or misconduct of the officer making the sale, when the plaintiff or mortgagee is the pur- chaser, and the rights of, third parties, or bona fide purchasers, have not intervened, than when a stranger to the suit is the pur- chaser. Kellogg v. Howell, 62 Barb. 280. h. Mode of applying for resale. If, for any of the causes before mentioned, or for any other cause, it would be inequitable to permit the sale to stand, the proper remedy is by an applica- tion to the court, on motion, for an order setting aside the sale and directing a resale of the premises. St. John v. Mayor, etc., of New York, 13 How. 527 ; S. C, 6 Duer, 315 ; Gould v. Morti- mer, 26 How. 167 ; S. C, 16 Abb. 448. • Notice of the motion for a resale must be given to every party who has appeared in the cause, and who has an interest in the question, as well as to the purchaser at the first sale. 1 Barb. Ch. Pr. 541 ; Robinson v. Meigs, 10 Paige, 41. As a general rule, the proper time for making application for a resale, is before the master' s (referee' s) report of the sale has been confirmed absolutely {Brown v. Frost, 10 Paige, 243 ; Strong v. Dollner, 2 Sandf. 444), but under very special circum- stances the court may, after confirmation of the report, set the same aside, and order a resale. 1 Barb. Ch. Pr. 541 ; Lansing v. McPherson, 3 Johns. Ch. 424. ' It has been held that a defendant, who is personally liable for the deficiency upon a sale of mortgaged premises, but who has no interest in the premises, cannot apply for a resale, if he has been discharged from liability for the deficiency, to the extent of the full value of the premises, over and above the amount bid at the. former sale. Bodine v. Edwards, in chancery, August 1, 1843, cited in Barb. Ch. Pr. 541. The proceedings upon the resale are the same as those upon the original sale. Williamson v. Bale, 3 Johns. Ch. 290. INTERLOCUTORY OR DECRETAL ORDERS. 379 Completing sale — Referee's report on order — Different kinds of. i. Completing sale. The premises being struck off to the high- est bidder, the purchaser is to sign an acknowledgment which is usually written under the conditions of sale, to the effect that he has purchased the premises on those conditions, for the sum bid by him, and agreeing to comply with such conditions. The contract, however, is not regarded as complete when the agree- ment is signed, and the purchaser will not be entitled to the benefit of it until the referee's report of the sale is confirmed absolutely. 2 Dan. Ch. Pr. 1274. ARTICLE VI. referee's report on order. Section 1. Form, nature and use. a. In general. The practice, as regards the report of a referee on an interlocutory reference under the Code, is to be governed by, and to be in accordance with, the rules of practice formerly observed in the court of chancery (Ketchum v. Clark, 22 Barb. 319), except where such rules are inconsistent with any of the provisions of the Code (§ 469), or with the written rules of the court. Sup. Ct., Rule 97. But no provision has been made, either in the Code, or by the rules of the court, relative to such reports, other than the general one contained in rule 39 of the supreme court, allowing exceptions to be taken to them within eight days after notice of filing, etc., which will be more appro- priately considered in a subsequent article. It hence follows that, in order to ascertain what rules should now govern on this point of practice, it will be necessary to ex- amine the former practice in chancery relating to the master's report on a similar reference. b. Different hinds of. The report of the master was the means whereby his opinion and the result of his inquiries on the refer- ence were presented to the court, and it might be either general or special. General reports embraced the master's conclusions upon all the matters referred to him by the decree or order of reference, but special or separate reports embraced only one dis- tinct object of the reference, and were made in cases where the inquiries were numerous, and it was a matter of importance that a part of the decree should be satisfied before the whole of the proceedings were sufficiently matured to enable the master to make a general report. 1 Barb. Ch. Pr. 544, 545. 380 INTERLOCUTORY OR, DECRETAL ORDERS. — - - — 7 — . Special report — General report, form of, etc. c. Special report. Formerly, the master was not at liberty to make a separate report, unless authorized to do so by the decree or order ; but, by the 108th chancery rule, which existed at the adoption of the Code, and which is held to be still applicable, it was provided that, in all matters referred to a master, he should be at liberty, upon the application of any party interested, to make a separate report or reports, from time to time, as he should deem expedient; the costs of such separate reports -to be in the discretion of the court. And when the master should make a separate report of debts or legacies, he should be at liberty to make such certificate as he thought fit with respect to the state of the assets ; and any person interested might thereupon apply to the court as he should be advised. Chancery, Rule 108. The cases hitherto reported under the present system, sanc- tioning the practice of making separate reports upon one of the issues, leaving other matters, such as an accounting, etc., for a further and final report, belong to that class of references (not interlocutory) where the wJiole issue has been referred. See Palmer v. Palmer, 13 How. 363 ; McMahon v. Allen, 27 Barb. 336 ; 7 Abb. 1 ; Bantes v. Brady, 8 How. 216 ; Pratt v. Stiles, 9 Abb. 150, 157. Such practice, however, may no doubt be still resorted to on an interlocutory reference under the present as well as under the former system, as, for example, where a decretal order directs, among other things, a receiver or trustee to be appointed, the master (referee) may certify or report separately such appoint- ment, and afterward proceed upon the accounting or other mat- ter referred. Harris v. Kemble, 4 Russ. 474 ; 1 Van Sant. Eq. Pr. 562. The form, manner of preparing, objecting and excepting to, and confirming separate reports, are nearly the same as upon general reports. The only difference being that, where it is intended to act upon them, the cause is not set down for. hearing as it is upon a general report, but a petition must be presented to the court, praying such directions as arise out of the separate report. 2 Dan. Ch. Pr. 1294. d. General report, form of, etc. The referee, having obtained all the information necessary to enable him to prepare his gen: eral report, which must comprise the conclusions which he has come to upon all the matters referred to him by the interlocutory decree, he proceeds to make a draft thereof, which commences INTERLOCUTORY OR DECRETAL ORDERS. 381 General report, form of, etc. with the title of the cause, and is addressed to the supreme court. In point of form, it may be like the master's report, under the former practice in chancery, divided into two parts, the body and the schedules — the body of the report being a short epitome of the proceedings laid before the referee, with his opinion and finding thereon. It contains only the results of the accounts or statements, and refers to the schedules for detailed particulars. 1 Barb. Ch. 548. The report refers to the order of reference by its date, and should recite the substance of the directions contained in it, but it should not recite the whole order. In preparing a report, great care is required, in order to dis- pose of all the matters which have been referred, either by find- ings of the referee upon each section of the decree, or by point- ing out what matters of reference have been waived ; and, where a separate report has been made, it will be necessary, in the gen- eral report, briefly to allude to the date and particulars of it, so that the court may see that all the inquiries directed by the order have been, in some way, disposed of by the referee. 2 Dan. Ch. Pr. 1296. When it is referred to a referee to examine and report as to particular facts, or as to any other matter, it is his duty to draw the conclusions from the evidence before him, and to report such conclusions only, and it is irregular and improper to set forth the evidence in his report without the special direction of the court. In re Hemiup, 3 Paige, 305; Harris v. Fly, 7 id. 421; Lee v. WillocTc, 6 Yes. 605. Although the referee cannot detail the evidence upon which he proceeds in making his report, he generally refers to it either in the body of his report or in a schedule annexed to it. And sometimes the order directs the referee to report the testimony, or to report it if either party require him to do so, in which cases the testimony should be annexed, certified by him, but not em- bodied in the report. 1 Hoff. Ch. Pr. 545. It may be here observed, that even when the evidence is such that it is impossible to arrive at any degree of certainty upon it, yet, if it is sufficient to afford a reasonable ground of presump- tion one way or the other, the referee is bound to find in favor of such presumption. See Fenner v. Agutter, 1 Mylne & Keen, 120. He is not however, bound to state inferences of law arising from 382 INTERLOCUTORY OR DECRETAL ORDERS. General report, form of, etc. the facts before Mm ; and where facts are so clearly stated in a report as to necessarily involve a particular consequence, it is for the court to act upon the facts so reported. Bick v. Motley, 2 Mylne & Keen, 312. See In re Hemiup, 3 Paige, 305. The referee is not warranted in reporting his opinion upon a question of intention; the court alone taking cognizance of that question. Pitt v. Lord Camelford, 1 Yes. 83. . And upon a reference as to title, a report, generally, that a good title cannot be made out is irregular. The precise points in which the title is defective should be stated by the referee. Green v. Monks, 2 Molloy, 325. The schedules, when there are any, must be annexed to the report and filed with it. Smith v. Smith, 2 Dick. 789. The proper mode of procedure at present, in ordinary cases at least, after the testimony is closed and the case finally submitted, is for the referee to draw up and sign his report, and deliver it to the prevailing party, without pursuing the mode of settlement and hearing objections, which was the practice before a master in chancery at the time the Code went into effect. 1 Van Sant. Eq. Pr. 563. It is doubtless optional, however, with the referee to adopt the former practice, as regulated by the 109th chancery rule, since the cases before alluded to seem to recognize that, as well as the other chancery rules on the subject of interlocutory references, as still existing. Palmer v. Palmer, 13 How. 363 ; Ketehum v. Clark, 22 Barb. 319. The above rule provides, that when the master (referee) has prepared the draft of his report, he shall deliver copies thereof to such of the parties as apply for the same, and shall assign a time and place for the parties to bring in objections, and for set- tling the draft of the' report, and shall issue his warrant for that purpose ; and no summons to see the draft of the report and take copies thereof shall be necessary. On the return of the warrant, or on such other day as may then be assigned by the master (referee) for that purpose, if objections are filed by either party, he may proceed to hear the parties on such objections, and the master (referee) shall settle and sign his report, and cause it to be filed in the proper office within twenty days after the argument on such objections is closed. If no objections are made to the draft, the master (referee) shall sign his report, and file it in the proper office within ten days after the time assigned for bringing in objections. Chancery, Rule 109. INTERLOCUTORY OR DECRETAL ORDERS. 383 Exceptions to report — When and how taken, and brought to hearing. Either party, on examining the draft of the report, may bring in his objections, on the day assigned, stating that some evidence has been misunderstood, some fact not found, or improperly found, or that some irregularity or error is apparent on the face of the draft of the report. The objections, especially in impor- tant cases, should be carefully drawn by counsel, but need not be signed by him ; and as they are to serve as the ground work of future exceptions, they are generally the same in form and substance as the exceptions proposed to be taken. And this is so far true, that if the exceptions go beyond the objections, or assign matter not comprised in them, they will to that extent be deemed irregular and overruled. 1 Barb. Ch. Pr. 547. If a person interested in the report, though not a party to the suit, is dissatisfied with it, he must leave objections to the draft as a preliminary step to putting himself in a situation to take exceptions. Thus, creditors and other persons coming in under decrees, and who have had their claims allowed, must, if they mean to except to the report, carry in their objections to the draft, in the same manner as parties to the record. 2 Dan. Ch. Pr. 1303. After hearing and considering the objections, the referee may, if he thinks proper, modify or alter the draft of his report accord- ingly, he then signs the report, and may himself file it in the proper clerk's office, agreeably to the provisions of the 109th chancery rule. ARTICLE VII. EXCEPTIONS TO EEPOET. Section 1. When and how taken, and brought to hearing. a In general. Under the former practice in chancery the usual method of reviewing or correcting the masters report was by taking exceptions to it. 1 Barb. Ch. Pr. 556 So, under the Code the same course of procedure is usually followed in re- newing the referee's report in all cases other than a report made ZZ the trial of issues ; that is, by filing exceptions with he ckrk within eight days after notice received of the filing of the J pSt and bringing Lh exceptions to a hewing at a special term of the court. Sup. Ct., Rule 39. /^M^C ^ By the former practice, however, there are cases in which the court will direct the master to review his report, without requir- 384 INTERLOCUTORY OR DECRETAL ORDERS. Mode of reviewing by exceptions. ing exceptions to be taken ; or, if taken, will direct it to be re- viewed upon other grounds than those covered by the exceptions (1 Dan. Ch. Pr. 1320) ; and it is presumed the same is true under the present practice, relative to the review of a referee's report of the class under consideration. In some cases also, the court will direct a review, upon appli- cation by motion ; as where there has been some error or omis- sion in the report which would prevent the matter from being properly raised by exceptions {Anonymous, 3 Mad. 246) ; or the review may be directed upon the hearing for further directions ; as where the court is not satisfied with the referee' s finding ; or the referee has not found sufficient facts for the court to render judgment upon. Turner v. Turner, 1 Dick. 313 ; S. C, 1 Swanst. 156 n. A report is not properly reviewable on exceptions, merely on •the ground of irregularity in the proceedings before the referee ; but in such case the appropriate remedy is by application to the court, on motion, to set aside the report, or refer it back to the referee to correct the irregularity. Tyler v. Simmons, 6 Paige, 127. And where the report is made in a .special proceeding the court will, if the objections to the report are not apparent upon the face of it, entertain a petition to refer it back to the referee to be reviewed. 2 Dan. Ch. Pr. 1320. b. Mode of reviewing by exceptions. It may be observed in gen- eral, under this head, that the present mode of reviewing a report on exceptions is in all respects similar to the former practice in chancery, the thirty-ninth rule of the supreme court providing that, after the filing of the report with the clerk, the same shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after the service of notice of filing the same. Sup. Ct., Rule 39. And even prior to the adoption of the provisions in the above rule, which clearly settles the question, the practice to be pursued in such cases was thus pointed out by Justice Haeeis, namely, that the only way to review such a report was by means of excep- tions, founded on objections before the referee, according to the customary chancery practice, such exceptions to be brought to argument on notice at special term and heard upon the, report, the exceptions thereto, and a copy of the testimony taken by the referee and certified by him. In the Matter of Merritt, Trustees, INTERLOCUTORY OR DECRETAL ORDERS. 385 In what cases and on what grounds exceptions lie — Who may except. etc., Albany special term, July, 1858, not reported, cited in 1 Yan Sant. Eq. Pr. 566. See Ketchum v. Clark, 22 Barb. 319. c. In what cases and on what grounds exceptions lie. Where a party desires to object to the principle upon which an account is taken by the referee, he should except to the report, and, in case he neglects to do so, the court will not send back the report to be reviewed, even if it appears that the referee has proceeded on erroneous principles. Brown v. Sansome, McClel. & Young, 427. Exceptions may also be taken to anj r erroneous ruling of the referee upon matters of law, upon the proceedings before him, either in the erroneous admission or rejection of testimony, etc. 1 Van Sant. Eq. Pr. 566. But where the referee, in his report, states all the facts "correctly, but arrives at an erroneous conclusion as to the legal consequences of those facts, it is not necessary to except to the report, as this question may be opened and decided by the court, upon further directions, without ex- ceptions. Adams v. Claxton, 6 Ves. 226. So where facts are so clearly stglted in a report as necessarily to involve a particular consequence, it is for the court to act upon the facts so reported, and it will not be a proper ground for exception that the referee has omitted to point out the consequence. Bick v. Motly, 2 Myl. & Keen, 312. And it has been held that, in case of a report under a reference, for the master (referee) to inquire and certify his opinion, exceptions are not to be taken to the report, but it is to be brought before the court, on the report, for the court to judge and determine. Neal v. Billing, 1 Dick. 93. Where a party, on the reference, produces and examines a witness before the referee, but neglects to inquire as to a partic- ular item in the account, which the witness alone could explain, he cannot afterward except to the report as incorrect in respect to such item. Barrow v. BMnelander, 3 Johns. Ch. 614. d. Who may except. All the parties to the suit who are inter- ested in the matter in question may take exceptions to the re- port ; and where there are several sets of parties appearing by different solicitors, they may, if they are not disposed to join, each take exceptions, although their grounds of exception are the same. 2 Dan. Ch. Pr. 1311. Creditors who have established their claims before the referee are also permitted to except to the report, although not parties to the suit. Wilson v. Wilson, 2 Molloy, 328. And so also are creditors who have preferred claims, which have been rejected Vol. III.— 49 386 INTERLOCUTORY OR DECRETAL ORDERS. Exceptions, how taken, and form of. by the referee. It is necessary, however, before they do so, to first obtain permission of the court, which they may do upon motion, of course. 2 Dan. Ch. Pr. 1311. Persons claiming as next of kin, whose claims have been dis- allowed by the master (referee), may except. Walker v. Wing- field, cited, 2 Dan. Ch. Pr. 1312. As may also a purchaser under a decree for sale. Ker v. Clooerry, cited, 2 Dan. Ch. Pr. 1312. e. Exceptions, how taken, and form of. Great care was required by the former practice in preparing the exceptions, in order that they might point out the precise objection, and raise the particular question which the party desired to review. They were held to be in the nature of special demurrers, and the party objecting must point out the error ; otherwise, the part not ex- cepted to would be taken as admitted. Wilkes v. Rogers, 6 Johns. 566. And where one general exception was taken to a report including several distinct matters, and the report appeared right in any one instance, the exception would be overruled. Candler v. Pettit, 1 Paige, 427 ; 3 Wend. 618 ; Franklins. Keeler, 4 Paige, 382. But under the present system it has been held that formal exceptions to reports under interlocutory decrees are not neces- sary. Evertson v. Givan, 16 How. 25. It is sufficient, if the objections be taken on the hearing and entered by the referee in his minutes, as in case of a trial before him, and after notice of filing the report, specific exceptions be filed and served within the eight days, and substantially in the form of the chancery practice. 1 Van Sant. Eq. Pr. 568. It is to be observed, how- ever, that although it is absolutely necessary that exceptions be filed if the party desire to raise his objection (Rule 39, Sup. Ct.), yet, if he file a mere general exception, the court may, doubt- less, if it choose, review the whole report, both upon the referee's conclusions of law and of fact. This was sometimes done even under the former practice ; as, for example, under a master's re- port under a reference as to title. For, although it was the usual course to state the ground of objection to the title in the excep- tions, the rule was only adopted for convenience, and if there was any substantial objection to the title not stated in the excep- tions, the party was not precluded by the court from arguing it. 1 Barb. Ch. Pr. 551 ; 1 Van Sant. Eq. Pr. 569. It was held in a case under the former practice that an excep- INTERLOCUTORY OR DECRETAL ORDERS. 387 Form of exceptions to report — Filing and serving exceptions, etc. tion to a master's report as to the manner of computing interest, instead of merely stating that the master had not adopted the usual or legal mode, should indicate in what manner the interest should be computed, so that, if the exception is allowed, the master will know in what manner to correct his report. Matter of Crittenden, in chancery, May 17, 1842, cited in 1 Barb. Ch. Pr. 551. Form of exceptions to report. (Title of cause.) Exceptions taken by the above plaintiff (or W. M., the defend- ant), to the report of C. B. K., Esq., the referee, dated the day of First exception. That the said referee has, in and by his said report, reported that , etc. (state cause of exception). Whereas, the said referee ought to have found and reported that, etc. Second exception, etc., etc. (State each exception separately^) In all which particulars the said plaintiff, G-. W. (or W. M., the defendant), excepts to the said report, and demands that the same may be reversed or modified accordingly. R. B. S., Attorney for plaintiff. f. Filing and serving exceptions and noticing for hearing. The exceptions having been properly drawn, they must be filed with the clerk of the county where the action is triable, and the clerk is required to make a note of the day of filing in the proper book, under the title of the cause or proceeding ; and a copy of the exceptions must be served on the opposite party, which filing and service must be within eight days after notice served of filing the report. If the exceptions are filed and served within such time, they may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. Sup. Ct, Rule 39. . If the party who excepts bring on the hearing, notice ot the same may be served at the same time with the service of a copy of the exceptions. . If the party filing the report is satisfied with it, and is desirous of bringing on the cause for a hearing thereon upon further di- rections, and obtain his final judgment, he may give notice of such hearing immediately on filing the report, and at the same time serve notice of the filing thereof, and such notices may both be embraced in the same paper. Kendall v. Eider, 35 Barb. 100. 388 INTEELOCUTOEY OE DECEETAL OEDEES. Hearing and argument of exceptions — Decision and proceeding thereon. In case any adverse party wishes to except, he must do so within eight days thereafter, and the moving party may then immedi- ately notice the exceptions for hearing at the same time and place with the final hearing of the cause, if he have sufficient time to do so ; and if not, may then serve a new notice either to bring on the exceptions separately, or the exceptions and final hearing of the cause together. Forest v. Forest, cited, 1 Van Sant. Eq. Pr. 570 n. See Gregory v. Campbell, 16 How. 417. g. Hearing and argument of exceptions. Upon such hearing of exceptions to the report, the party excepting must furnish the necessary papers for the court, copies of the report, exceptions and pleadings. In case the testimony taken before the referee be not annexed to, or returned with, the report under the order of the court, either party may apply to the referee for certified copies of such testimony, which may be used upon the hearing. 1 Hoff. Ch. Pr. 545 ; In re Merritt, Albany Special Term, July, 1858, cited, 1 Van Sant. Bq. Pr. 566. Affidavits, taken subsequent to the report cannot, however, be read upon the hearing {Davis v. Davis, 2 Atkyns, 21) ; nor can any evidence be read upon the hearing which was not used before the referee and entered in his report as having been read. Ridifer v. CBrien, 3 Mad. 43 ; Rands v. Pushman, 6 Sim. 46. This rule, under the former practice, also precluded the read- ing of any parts of the defendant' s answer which were not read in the master' s office. Hedges v. Cardonnell, 2 Atk. 408. But under the present system the rule is doubtless changed, in this respect, the answer now being a pleading merely, whereas, under the former practice, it not only served as a pleading but also as evidence. It has been held in one case under the Code, that, where ex- ceptions are taken and the cause is brought on for final hearing with the exceptions, the court will not only look to the pleadings but will receive other evidence in its discretion, and will con- sider any stipulations offered, and admissions of the parties, or of other persons presented to it on the hearing. Gregory v. Campbell, 16 How. 417. 7b. Decision and proceeding thereon. If, upon argument, the exceptions are overruled, the overruling of them has all the effect of confirming the report absolutely ; and if the cause has been set down to be heard upon further directions, to come on at the same time with the hearing of the exceptions, the court INTERLOCUTORY OR DECRETAL ORDERS. 389 Decision and proceeding thereon — Final hearing on further directions, etc. proceeds at once to hear the cause upon, further directions. So, if the exceptions, or any of them, are allowed, but it is not neces- sary to refer the report back to the referee to be reviewed, the hearing of the cause upon further directions may be proceeded with in the same manner as if the exceptions had been overruled. 2 Dan. Ch. Pr. 1318. If the allowance of the exceptions, or any of them, renders it necessary to refer the matter back to the referee, an order is entered to that effect ; and the reservation of further directions and of the costs of the suit is continued until the coming in of the new report. See Baiibeny v. CogMan, 12 Sim. 507. In some cases, upon the allowance of an exception to a report, it is unnecessary to send it back for review. Thus where an ex- ception is allowed as to the amount of damages sustained, the court can modify the report and settle the amount without re- ferring it back to the referee. Taylor v. Reed, 4 Paige, 561. And sometimes, if the court think proper, it may, before it comes to a decision upon the subject-matter of the exception, send the report back to be corrected, by supplying some defect, or ascertaining some fact which may be necessary to enable the court to come to a proper conclusion. In such cases, the court usually adjourns the consideration of the exceptions, or of the particular exception in question, until the referee shall have made the supplemental report. 2 Dan. Ch. Pr. 1319. So, also, when the subject-matter of the exception is a fact depending upon certain conflicting evidence, the court will fre- quently, before it decides upon the exception, direct an issue at law to try the disputed fact, reserving the decision upon the exception till after the trial. Wilson v. Metcalfe, 3 Mad. 45. See Gregg v. Taylor, 4 Russ. 279. ARTICLE VIII. FINAL HEARING ON FURTHER DIRECTIONS UPON COMING IN OF referee's report. Section 1. How to proceed. a In qeneral The effect of an interlocutory or decretal order, directing a reference at the original hearing, for the purpose of taking an account, etc., is to adjourn the cause for further direc- tions until the coming in of the report of the referee ; and, m 390 INTEELOCUTOEY OE DECEETAL OEDEES. "When cause may be heard — Where to be heard. order to obtain a final decree or judgment, it is necessary that the cause should again be set down to be heard for further directions. The decree of the court is usually final on such hearing, but the report may be sent back for review, or it may be necessary to institute further inquiries necessary to final judgment ; and, in such case, the cause must again be brought on for hearing, which process must be repeated as often as any further direc- tions are reserved by the last decree pronounced. 1 Barb. Ch. Pr. 558. b. When cause may be heard. A cause, however, cannot be heard upon further directions, until the accounts or inquiries directed by the interlocutory decree have been taken or made, and the referee's report of their result filed, and notice thereof served ; that is, there must be a general report made, in pursu- ance of the interlocutory decree or order. 2 Dan. Ch. Pr. 1366. If a separate report has been made, the cause cannot be so brought to a hearing, but the order on such separate report must be obtained on petition. VanKamp v. Bell, 3 Mad. 430. The court will not allow the cause to be set down for further directions before the report has been made, even though it is found that the reference has become useless. , The proper pro- cedure in such case is to obtain a modification of the order of reference. Dixon v. Olmius, 1 Yes. 153. The plaintiff is entitled to bring on the hearing of the cause, even though he has himself excepted to the report ( Teo v. Frere, 5 Yes. 424) ; and there seems to be no objection to his noticing his cause for hearing immediately on filing the report of the referee, the notice of hearing being embraced in, and served with, the notice of filing. 1 Yan Sant. Eq. Pr. 574. Under rule 39 of the supreme court, any interested party may bring the exceptions to argument ; and if the exceptions be filed within the prescribed time (eight days), the final hearing and exceptions may, no doubt, be brought to a hearing together on a simple notice of either party. Gregory v. Campbell, 16 How. 417. c. Where to be heard. The hearing, upon further directions, is at special term or circuit, and the cause is usually placed regu- larly upon the calendar, the date of the issue being the date of the original trial issue. Gregory v. Campbell, 16 How. 417. INTERLOCUTORY OR DECRETAL ORDERS. 391 Hearing. Inasmuch as the hearing, upon further directions, is not a trial, but in the nature of an application for judgment after trial and decision by the court, it does not seem absolutely indispensable to put the cause on the calendar. They have, therefore, been allowed to be brought on as non- enumerated motions, at a mere motion term, and in a county other than the place of trial, in the same district. 1 Van Sant. Eq. Pr. 574. d. Hearing. The course of proceeding at the hearing is much the same as that pursued at the original hearing. The papers necessary for the use of the court are furnished by the plaintiff's counsel ; and, as on other motions, the plaintiff's counsel opens, the defendant' s counsel replies, and the plaintiff's counsel closes the argument. Forest v. Forest, cited, 1 Van Sant. Eq. Pr. 575. If default is made by the defendant in appearing, the court, on proof of filing the report eight days previous, and of service of notice thereof, and of hearing, will pronounce final judgment in conformity with the former decision and the report of the referee. In case exceptions have been taken to the referee's report, and have been set down for argument at the same time with the further directions, they are to be heard and disposed of before the cause is heard upon the further directions. 1 Barb. Ch. Pr. 560. See Yeo v. Frere, 5 Ves. 424. This rule, however, is not regarded as inflexible in present practice, and the court may, in its discretion, for its own convenience, or other good cause, direct the whole matter to be disposed of together in one argument. 1 Van Sant. Eq. Pr. 575. Upon the hearing on further directions, if a party has not excepted to the referee's report, he is concluded by the -findings therein ; but, if all the circumstances appear upon the face of the report, a question decided by the referee may be opened on the hearing without any exceptions having been taken. Adams y. Qlaxton, 6 Ves. 226, 230 ; Fvertson v. Oivan, 16 How. 25. And if a referee has exceeded his authority, a party who has omitted to take exceptions is not concluded by the confirmation of the report. Lewis v. Loxam, 1 Mer. 179. _ As a general rule, upon the hearing on further directions, the court will not enter on any matter extraneous to the decree or decision or receive any evidence beyond the report ; and when- ever such matter arises, it is necessary to present a petition to come on to be heard, together with the further directions. Par- 392 INTERLOCUTORY OE DECRETAL ORDERS. Decision and proceedings thereon. nell v. Price, 14 Ves. 502. Thus, if any new facts have occurred since the original decision which have altered the situation of the parties, or affected their rights in the subject-matter ; as, if the interest of a party in the fund in court, or any part of it which is to be disposed of on further directions, has been sold or assigned, the purchaser or assignee may apply by a special petition to come on with the further directions, that the money may be paid over to him, which petition need only be served on the vendor or assignor of the share. 1 Van Sant. Eq. Pr. 576. It has, however, been held in an action to foreclose a mortgage, that where the cause is brought to hearing on the report of the referee, to which exceptions had been duly taken, that the report is but part of the evidence before the court, and upon which it is called upon to decide whether it will or will not be most bene- ficial to the parties to decree a sale of the whole premises in one parcel in the first instance ; and the court, it is said, in such case, will look to the pleadings and will receive other evidence in its discretion, and will consider any stipulations offered and admis- sions of the parties, or of other persons presented to it on the hearing. Gregory v. Campbell, 16 How. 419. e. Decision and proceedings thereon. If the hearing upon further directions, on the coming in of the referee's report, is final, the court proceeds to render final judgment upon the de- cision already rendered at the original hearing, and upon the report of the referee ; and, in general, the court will make no order, upon further directions, altering or varying the original decree {Lord ShipbrooTte v. Lord HinchinbrooJc, 13 Ves. 387, 394) ; even though a new state of circumstances appears by the referee' s report, showing that if the facts, as they are stated in the report, had been before the court at the time the decision was pronounced, it would not have given the directions contained in the decision. Wilson v. Metcalfe, 1 Russ. 530. The court will, however, make an order in aid of, or additional to, such decision on further directions 1 , even though no question of the kind was reserved. Thus, in cases where, upon the de- cree, and the report under it, a proper ground appears for giving interest, the court will direct it to be computed on further direc- tions, though the question of interest has not been reserved ; but it will, if the report makes a new case against the defendant, for charging him with sums which, but for his willful default, he might have received, make an order for so charging him, on fur- INTERLOCUTORY OR DECRETAL ORDERS. 393 Decision and proceedings thereon. ther directions, even where it was prayed in the bill of complaint and refused at the hearing, from deficiency of proof. Franklin v. Beamish, 2 Molloy, 383. And so, although a receiver has been refused at the hearing of the cause ; yet, if, upon the report, a new state of facts appears, as, for example, a balance in the hands of the defendant, the court will entertain a renewed application for a receiver, upon the hearing on further directions. Attorney-General v. Mayor of Galway, 1 Molloy, 95. Vol. III. — 50 CHAPTER VII. NEW TEIAL. AKTICLE I. MOTION FOE NEW TRIAL. Section 1. General rules applicable. a. In general. A new trial has been defined to be " a re-inves- tigation of the facts and legal rights of the parties upon undis- puted facts," and either upon the same, or different, or additional evidence before a new jury, and probably, but not necessarily, before a different judge. 4 Chit. Gen. Pr. 30. The practice of granting new trials, in causes tried before a jury, is of very ancient origin, instances being recorded in the year-books as early as the reign of King Edward III. See 3 Bl. Com. 388 ; 3 Broom & Had. 365. The first regularly reported case, however, in which a new trial was granted, is that of Wood v. Ounston, Styles, 466, which was in the year 1655, and was granted on the ground of excessive damages given by the jury. But, although the utility of the remedy was thus acknowledged at -so early a period, it was only with the greatest difficulty that it could be obtained, and a party, though justly entitled to relief, was in many cases unsuccessful in procuring it. Bills of excep- tion and demurrers to evidence, on account of any supposed misconduct of the judge who tried the cause, were probably un- known at common law, and, although new trials might at all times have been granted, on account of the mistake or misdirec- tion of the judge, or the mistake or misconduct of the jury, yet it was found that the judge sometimes returned to the court, in banc, a very incorrect statement, as his report of the supposed proceedings on the trial ; and, in case of dispute, it became the practice to treat such report as conclusive. See Adams v. Bank- art, 5 Tyr. 425 ; Stanley v. Twogood, 2 Hodge, 135. If the judge who tried the cause should have, in fact, improperly resolved that the verdict he had occasioned should stand, and that a new trial should not be granted, he could effect his object by return- ing to the court in banc an incorrect or defective report of the NEW TRIAL. 395 General rules applicable — How far discretionary. proceedings on the trial, and thus induce the other judges in full court to refuse a new trial. 4 Chit. Gen. Pr. 2. This defect in the administration of justice was to some extent remedied by the enactment of the statute of Westminster 2 (13 Edw. I, c. 31), which required the judge who tried the cause to seal a bill of exceptions ; but it was not till a later period, and after the practice of moving the court for a new trial, had, to a great extent, superseded the proceeding by bill of exceptions or demurrer to evidence, that new trials began to be more liberally granted in furtherance of justice. The necessity for affording the remedy of a new trial against an improper verdict will be obvious from a careful consideration of the wide extent of inter- ests which the juries are called upon to decide. It has been well observed that "causes of great importance, titles to land, and large questions of commercial property, come often to be tried by a jury, merely upon the general issue ; where the facts are complicated and intricate, the evidence of great length and vari- ety, and sometimes contradicting each other; and where the nature of the dispute very frequently introduces nice questions and subtleties of law. Either party may be surprised by a piece of evidence which (had he known of its production) he could have explained or answered ; or may be puzzled by a legal doubt which a little recollection would have solved. In the hurry of a trials the ablest judge may mistake the law and misdirect the jury ; he may not be able so to state and range the evidence as to lay it clearly before them, nor to take off the artful impres- sions which have been made on their minds by learned and ex- perienced advocates. The jury are to give their opinion instan- ter; that is, before they separate, eat or drink. Ar.d, under these circumstances, the most intelligent and best intentioned men may bring in a verdict which they themselves, upon cool deliberation, would wish to reverse." 3 Bl. Com. 390. A new trial, granted under proper restrictions, operates as an effectual remedy to all these inconveniences, and serves to ren- der the administration of justice through the decision of a jury almost wholly free from objection. As to the general importance of the right to a new trial, see Brightr. Eynon, 1 Burr. 390 ; Piatt v. Munroe, 34 Barb. 291, 297, 298 b Bow far discretionary. Motions for new trials, unless solely made on exceptions, or on the ground of irregularity 396 NEW TEIAL. How far discretionary — For irregularities — Want of due notice of trial. ( Uhderhill v. New York and Harlem R. R. Co., 21 Barb. 489 ; Farmers and Manufacturers' Bank v. WMnfleld, 24 Wend. 427), are addressed to the legal discretion of the court, whether based upon the weight of evidence, surprise, or newly-discovered evidence, or the fact that the party has been deprived of his evi- dence by accident, or other like grounds. Donley v. Graham, 48 N. Y. (3 Sick.) 658; Tyler v. Hoorribeck, 48 Barb. 197; Dickson v. Broadway and Seventh Avenue R. R. Co., 47 ~N. Y. (2 Sick.) 507; Piatt v. Munroe, 34 Barb. 291. See Warner v. Western Transportation Company, 5 Bob. 490 ; Gray v. Bridge, 11 Pick. 189 ; White v. Trinity Church, 5 Conn. 187. In actions of an equitable nature, an application for a new trial is so far within the discretion of the court, that the exist- ence even of irregularities or errors upon the trial do not, as a matter of strict right, entitle a party to an order for a new trial. Clayton v. Yarrington, 33 Barb. 144 ; Clark v. Brooks, 2 Abb. N. S. 385 ; S. C, 2 Daly, 159 ; Van luyl v. Van Tuyl, 8 Abb. 1ST. S. 5 ; Forrest v. Forrest, 25 N. Y. (11 Smith) 501 ; Colie v. Tifft, 47 1ST. Y. (2 Sick.) 119. But in all cases where the applica- tion for a new trial is addressed to the discretion of the court, this discretion ought to be exercised in such a manner as will best answer the ends of justice. Edmondson v. Machell, 2 T. B,. 4 ; Piatt v. Munroe, 34 Barb. 291 ; President, etc. v. Patchen, 8 Wend. 47 ; Tyler v. Hoornbeck, 48 Barb. 197. Section 2. For irregularities. a. Want of due notice of trial. Want of due notice of trial is an irregularity sufficient to support a motion for a new trial. Attorney -General v. Stevens, 3 Price's Exch. 72 ; Lisher v. Par- melee, 1 Wend. 22 ; but if the defendant appears and makes a defense, it will be regarded as a waiver of the irregularity. Thermolin v. Cole, 2 Salk. 646. See Jackson v. Marsh, 1 Cai. 153 ; and even where the proceedings of the plaintiff are irregu- lar, it is incumbent upon the defendant to make application at the earliest opportunity, after being apprised of the irregularity, or he will be deemed to have waived it. Hinde v. Tubbs, 10 Johns. 486 ; The New York Ins. Co. v. Kelsey, 13 How. 535. In determining the sufficiency of the notice of trial, the court will inquire as to whether the attorney or party has been misled by the defect ; and for this purpose will not only look to the face of the notice, but to other circumstances, to ascertain whether the opposite party was, in fact, misled by the mistake. NEW TRIAL. 397 Want of proper jury. Batten v. Harrison, 3 Bos. & Pul. 1 ; Douio v. Rice, 11 Wend. 178 ; Wolfe v. Horton, 3 Cai. 86 ; Bander v. Covill, 4 Cow. 60. Thus, where the notice of trial was for the third Tuesday instead of the third Monday of June, the party, in fact, not being mis- led was held sufficient. The New York Central Ins. Co. v. Kel- sey, 13 How. 535. See Bander v. Covill, 4 Cow. 60 ; Wolfe v. Horton, 3 Cai. 86. See ante, 31. 6. Want of proper jury. The selection of a jury when unfairly made is another ground for a motion for a new trial, and is an irregularity arising through the mistake or misconduct of the officer in summoning or impaneling them. The mistake of the officer in such case, however, will not furnish a sufficient ground for setting aside the proceedings where no abuse or injury is pretended, and no objection is made at the time. Cole v. Perry, 6 Cow. 584 ; Bennett v. Matthews, 40 id. 428. It has been held, however, that if a juror has been sworn on the jury by a wrong surname (particularly if he be not the per- son summoned or intended to be sworn), a new trial may be granted. Norman v. Beamont, Willes, 484 ; Wray v. Thorn, Barnes, 454 ; Parker v. Thorolon, 1 Str. 640. See Fermor v. Borrington, Cro. Eliz. 222, though the rule is otherwise, if the juror be sworn by a wrong christian name. Hill v. Yates, 12 East, 231, n. And it is in the discretion of the court whether to grant a new trial in such a case or not, the court always refusing to do so where the mistake as to the juror has not been inten- tional, and productive of injury to the party complaining {People v. Ransom, 7 Wend. 417 ; Hill v. Yates, 12 East, 229), provided the juror is otherwise competent. See The King v. Tremaine, 7D.&E. 684, o. A new trial will not be granted on the ground that one of the jurors was an alien, where the objection was not raised and proper challenge made when the jury was drawn. And the par- ties are concluded, in such case, although the fact forming- the objection may not have come to their knowledge until after the trial Bennett v. Matthews, 40 How. 428. See Seacard v. Bur- ling 1 How 175 ; Clark v. Van Vrancken, 20 Barb. 278 ; BorsU. Beecker, 6 Johns. 332 ; Schumaker v. The State, 5 Wis. 324. The fact that ♦one of the jurors was related to the successful party in the action, and that they were on terms of friendship and intimacy together, is not sufficient to support a motion for 398 NEW TRIAL. Misbehavior of prevailing party. a new trial. Onions v. Naish, 7 Price's Exch. 203. See Hewitt v. Ferneley, 7 Price's Exch. 234. Insanity in a juror is a sufficient reason for a new trial, but it miist be fully proved. State v. Scott, 1 Hawks. (K. C.) 24. c. Misbehavior of prevailing party. Another sufficient ground upon which to make application for a new trial is the misbeha- vior of the prevailing party ; as where a party, for whom a ver- dict is afterward given, delivers to the jury, after they have left the bar, evidence which has not been shown to the court {Knight v. Inhabitants of Freeport, 13 Mass. 218 ; 1 Burr. Pr. 468) ; or if he have labored the jury, or used improper influence with them, to induce them to give a verdict in his favor. 2 Chitty's Arch. Pr. 1527 ; Blaine's Lessee v. Chambers, 1 Serg. & Rawle, 169 ; Reynolds v. The Champlain Trans. Co., 9 How. 7. Even where handbills, reflecting upon the plaintiff's character* were distributed in court and shown to the jury on the day of trial, a verdict against him was set aside upon application and a new trial granted, although the defendant, by his affidavit, de- nied all knowledge of the handbills. Coster v. Merest, 3 Brod. & B. 272. Merely desiring a juror to attend at the trial of a cause is no ground for a new trial (Snell v. Timbrell, 1 Str. 643) ; and if the jury take a paper which was given in evidence in the cause, with the concurrence of the judge, it is not error. How- land v. Willetts, 9 1ST. Y. (5 Seld.) 170. So, if the jury take a paper with the concurrence of the judge, though without the knowledge of the parties, and, although it may not have been put in evidence, it is not error if it appear either that it was not read or used by them ; or that being immaterial in its character, it can be seen from an examination of the whole case that it could not have had any bearing upon the issues or the result. Sehapp- ner v. Second Avenue Railroad Co., 55 Barb. 497 ; Hackley v. 1 Hastie, 3 Johns. 252 ; Lonsdale v. Brown, 4 Wash. C. C. 148. See Cray v. FisTc, 42 How. 135 ; S. C, 12 Abb. N. S. 213. When indirect measures have been resorted to in order to pre- judice the jury, or tricks practiced, or unlawful attempts to sup- press or stifle evidence, or thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, they will be defeated by granting a new trial. Davis v. Daveril, 11 Mod. 141 ; Barron v. Jackson, 40 N. H. 365 ; Anderson v. George, 1 Burr. 352 ; Edie v. East India Co., 1 Wm. Bla. 296 ; NEW TRIAL. 399 Misconduct of jury. Hewlett v. CrucMey, 5 Taunt. 277; 4 Chitty's Gen. Pr. 59; 2 Bouv. Inst. 292. d. Misconduct of jury. Any misconduct on the part of a jury in violation of their oaths is a sufficient ground for grant- ing a new trial ; as, where they agree upon a verdict by lottery. Mitchell v. Ehle, 10 Wend. 595 ; Hale v. Cove, 1 Str. 642 ; Donner v. Palmer, 23 Cal. 40 ; Mellish v. Arnold, Bunb. 51. But, if the jury, in order to ascertain the damages, agree that each juror should set down the sum which he thinks the plain- tiff ought to recover, and dividing the aggregate by twelve, they return the quotient as their verdict, this is not a ground for im- peaching their verdict, provided there was no previous agreement to be "bound by such result. Dana v. Tuclter, 4 Johns. 487 ; Dorr v. Fenno, 12 Pick. 521 ; Cowperthwaitev. Jones, 2 Dall. 55 ; Heath v. Conway, 1 Bibb, 398 ; Grinnell v. Phillips, 1 Mass. 530 ; Johnson v. Perry, 2 Humph. (Tenn.) 569 ; Harvey v. Jones, 3 id. 157 ; Harrison v. McOehee, 24 Ga. 530 ; St. Martin v. Desnoyer, 1 Minn. 156. Where, beforehand, the jury agreed to be bound by the result, a new trial was granted. Manix v. Malony, '7 Iowa, 81 ; Mledge v. Todd, 1 Humph. (Tenn.) 43. See Thomas v. BicUnson, 12 K Y. (2 Kern.) 364. If the jurors, or any of them, eat or drink at the expense of the party for whom they afterward find a verdict, it avoids the verdict and the court will grant a new trial. Co. Litt. 227 b. See Harehottle v. Placode, Cro. Jac. 21 ; Bex v. Burdett, 12 Mod 111 ; S. C 2 Salk. 645; 1 Ld. Haym. 148; Purinton v. Humphrey j 6 Greenl. 379 ; Everett v. Touells, 4 B. & Ad. 681 ; Hedv. Slate 33 Miss. 364. But it is not sufficient ground for a new trial that they eat at their own expense, or at that of the defeated party Ib.f Commonwealth v. Bohy, 29 Mass. (12 Pick.) 496. And the mere fact that one of the jurors drinks intoxicating liquors during the progress of the trial, it not appearing that in so doing he violates any express direction of the court, or that he drank to excess, is no objection to a verdict, mison jj*»£™£ \ Hill, 207 overruling Brant v. Fowler 7 Cow. » 32. Seefltone v. The State 4 Humph. 27; Power, ^^^f ' **££ State, 36 Miss. 121 , Gilmanton v. Ham, 38 N _ H loa In order 400 NEW TRIAL. On the merits. Baker v. Simmons, 29 Barb. 198) ; and this prejudice must be affirmatively shown. Eager v. Eager, 38 Barb. 92. See Gray v. Fisk, 42 How. 135 ; S. C, 12 Abb. 1ST. S. 213. The separation of the jury, without the consent of the court, is not per se sufficient to entitle a party to a new trial. Anthony v. Smithy 4 Bosw. 503 ; People v. Douglass, 4 Cow. 26 ; Bunn v. Hoyt, 3 Johns. 255 ; Cannon v. The State, 3 Tex. 31 ; Welch v. Welch, 9 Rich. 33. Neither is it sufficient ground for setting aside a verdict that a juror has attempted to inform the party of the verdict before it was announced in court. Fash v. Byrnes, 14 Abb. 12. • Irregularities and misconduct charged against a jury must be stated positively and specifically, and be sustained by oath ; and affidavits merely founded on information and belief are not sufficient in such case to set aside a verdict. Stone v. The State, 4 Humph. 27. Section 2. On the merits. a. In general. Applications for new trials on the merits, in the cases following, are addressed very much to the sound dis- cretion of the court ; but, in modern practice, they are liberally granted in furtherance of justice. Tyler v. Hoornbeck, 48 Barb. 197; Piatt v. Munroe, 34id. y 291; Barrett v. The Third Avenue Railroad Co., 45 N. Y. (6 Hand) 628. It has been decided by the court of appeals, that the supreme court of this State has the undoubted power and right to exam- ine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict and grant a new trial (Macy v. Wheeler, 30 N. Y. [3 Tiff.] 231; S. C, 18 Abb. 73), and the exercise of this discretionary power in granting a new trial is not reviewable in the court of appeals. Barrett v. The Third Avenue Railroad Co., 45 N. Y. (6 Hand) 628. See President, etc., of Brooklyn v. Patchen, 8 Wend. 47 ; Hoyt v. Thompson's Ex'rs, 19 1ST. Y. (5 Smith) 207. A new trial cannot be granted in civil cases at the instance of one of several defendants {Bond v. Spark, 12 Mod. 275; Ber- rington's Case, 3 Salk. 362 ; Parker v. Oodin, 2 Strange, 814) ; nor for a part only of the cause of action. Edie v. East India Co., 2 Burr. 1216, 1224; S. C, 1 W. Bla. 298 ; Swain v. Hall, 3 Wils. 45. It has been held, however, that in an action of tort against several, where all have united in the plea of the general issue, there may be a new trial as to one of the defendants, leav- NEW TEIAL. 401 Absence of party, counsel or witness — Surprise. ing the verdict undisturbed as to the others. Seeleyv. Chitten- den, 4 How. 265. b. Absence of party, counsel or witness. The court will sometimes, though rarely, grant a new trial on account of the unavoidable absence of the party, his attorney or witnesses. Post v. Wright, 1 Caines, 111; Sayer v. Finck, 2 id. 336 ; M'Kay v. The Marine Ins. Co., id. 384 ; Beazley v. Shapleigh, 1 Price's Exch. 201; Greatwood v. Sims, 2 Chitty, 269; Lee v. Joseph, 1 Car. & P. 46 ; Warren v. Fuzz, 6 Mod. 22 ; Buggies v. Ball, 14 Johns. 112 ; Tilden v. Oardinier, 25 Wend. 663. As a general rule, the absence of a material witness will not be allowed as a ground for a new trial, where the party might, on that account, have moved to put off the trial. Jackson v. Malin, 15 Johns. 293 ; Alexander v. Byron, 2 Johns. Cas. 318 ; Oilli- land v. Morrell, 1 Caines, 154. And, unless the verdict be mani- festly against the justice and equity of the case (Martyn v. Pod- ger, 5 Burr. 2631), a new trial will seldom be granted where a verdict has been given against a party, or a plaintiff has been nonsuited, for want of evidence which might have been produced at the trial. King v. Alberton, 3 Salk. 391 ; Cooke v. Berry, 1 Wils. 98. The neglect of the agent or attorney of the party making ap- plication is not a sufficient ground for a new trial, the neglect of the attorney or agent being the neglect of the principal. Patterson v. Matthews, 3 Bibb, 80; Barry v. Wilbourne, 2 Bailey, 91; Leedomv. Pancake, 4 Yeates, 183 ; Legrand v. Baker, 6Monr. 235, 248. But a new trial may be granted to a party who, although he failed to use due diligence himself, employed a competent agent, who was prevented by unavoidable accident from attending. Turner v. Booker, 2 Dana, 334. The refusal of an application for the postponement of a cause, on the ground of the absence of a material witness, is subject to review, and if erroneous to reversal, as well since as before the constitution of 1846. Howard v. Freeman, 3 Abb. N. S. 292 ; S. C, 7 Rob. 25. c. Surprise. A new trial may be granted on the ground that the applicant was taken by surprise on the trial ; as where a witness, who has been duly subpoenaed, absents himself at the moment of trial, so that the defendant cannot avail himself of the benefit of his testimony. Tilden v. Oardinier, 25 Wend. 663 ; Buggies v. Hall, 14 Johns. 112 ; Cotton v. State, 4 Tex. Vol. Ill — 51 402 NEW TRIAL. Surprise. 260. So a new trial was granted on the ground of surprise, where the attorney of the plaintiff was subpoenaed, with notice to produce an important document of which he had privately- surrendered the control, but did not disclose the fact until the trial. Jackson v. Warford, 7 Wend. 62. And where, in an action for seduction, the principal witness swore that the seduc- tion was effected on a specified day not mentioned in the plead- ings, and on which day the defendant was able to prove an alibi by witnesses who were not present at the trial, a new trial was granted. Sargent v. Denniston, 5 Cow. 106. So where, in an action on a promissory note, the plaintiff was surprised by the testimony of the maker that he paid the note at a particular time and place, and was not prepared to meet such testimony ; and no time or opportunity was given at the trial to obtain opposing evidence, it was held that new and material evidence contradicting the testimony as to payment was sufficient ground for a new trial. Par shall v. Klinck, 43 Barb. 203. See Wai- ter son v. Waiter son, 1 Head, 1 ; Riley v. Emerson, 5 N. H. 531 ; Crafts v. Union Mutual Eire Ins. Co., 36 id. 44. A motion for a new trial, however, will not be granted on the ground of surprise, when the point on which the alleged sur- prise took place was one that might have been reasonably anticipated. De Leyer v. MicTiaelis, 5 Abb. 203 ; or, where the party was aware beforehand that the evidence complained of would, in fact, be given. Meakim v. Anderson, 11 Barb. 215 ; Gardner v. Ryerson, 19 How. 108. Nor will a new trial be granted on the ground that the plaintiff was surprised at the defense set up. Jackson v. Roe, 9 Johns. 77. See People v. Marks, 10 How. 261 ; S. C, 2 Park. 673. Nor on the ground that proof, expected to be made by one witness, was in fact given by another, or with a view to impeach a witness. Beach v. Tooker, 10 How. 297. Nor will the fact that the party has been led to believe that certain facts material to the defense would be admitted, or not disputed, and thus induced not to introduce evidence, be sufficient ground for a new trial. So long as the conduct of the opposite party and his counsel in the matter is free from fraud or positive stipulation, the court will not inter- fere. Taylor v. Harlow, 11 How. 285. Surprise of counsel at the testimony of a witness is not of itself any ground for a new trial. Sproul v. Resolute Fire Ins. Co., 1 Lans. 71. It has been observed that surprise is sufficient ground for a NEW TRIAL. 403 Verdict against law — Verdict against evidence. new trial in bnt few cases, .such as the sudden and unexpected departure of a witness from the court ; unexpectedly adverse tes- timony of a party' s own witness, and, in some cases, any unex- pected testimony, and, generally, any situation in which a party may be placed, without his default, and injuriously to his interests. Oakley v. Sears, 7 Rob. 111. Where a party, claiming to have been surprised by the testi- mony of his own witness, makes application for a new trial, on the ground of surprise, he should produce the affidavits of other persons for the purpose of showing his ability to establish a dif- ferent case by them. Phoenix v. Baldwin, 14 Wend. 62. See Cray, v. Durland, 50 Barb. 211. In all cases the surprise complained of must be on some matter of fact and not of law. Craig v. Fanning, 6 How. 336. d. Verdict against law. Where the verdict is against law, a new trial will be granted. Stevens v. Munn, 19 Wend. 181 ; Tinson v. Welch, 7 Rob. 392. And this is the rule, although there be no misdirection by the judge. Gregory v. Tuffs, 1 Crom., M. & Rose. 310. It has been held, however, that where, in the opinion of the court, substantial justice has been done between the parties, although the law arising from the evidence would have justified a different result, a new trial will not be granted. Smith v. Shultz, 2 111. 490. See Marr v. Johnson, 9 Yerg. (Tenn.) 1. Where, on a second trial, the jury render a verdict contrary to the rule of law decided by the court in- granting a new trial, a third trial will be ordered. Wilkie v. Roosevelt, 3 Johns. Cas. 206 ; Silva v. Low, 1 id. 336. e. Verdict against evidence. If the jury find a verdict against the weight of evidence, the court will, in general, grant a new trial Conrad v. Williams, 6 Hill, 444 ; Townsend Manufac- turing Co. v. Foster, 51 Barb. 346 ; S. C. affirmed, 41 N. Y. (2 Hand) 620 n; Mdridge v. Reed, 2 Sweeny, 155 ; Dickson v. Broadway and Seventh Avenue R. R, 42 N. Y. (2 Sick.) 507. So whenever there is good reason for believing that a referee has mistaken the import and preponderance of the evidence given on the trial, and it is evident that injustice has been done, the iudgment entered upon his report will be set aside and a new trial granted. Townsend Manufacturing Co. v. Foster, 51 Barb. 346. , ,, , ., -,. , In aU cases, however, it must clearly appear that the verdict 404 NEW TEIAL. Verdict against evidence. or decision was against the weight of evidence. People v. Townsend, 37 Barb. 520 ; Williams v. Vanderbilt, 29 id. 491, 504 ; Fleming v. Hollenback, 7 id. 271 ; Sloddardr. Long Island R. R. Co., 5 Sandf. 180; and especially upon a question of fraud (People v. Townsend, 37 Barb. 520, Tnguanzo v. Salomon, 3 Daly, 153), or, where the verdict is against a claim for a forfeit- ure, as, for example, a defense of usury. Pice v. Welling, 5 Wend. 595 ; Mansfield v. Wheeler, 23 id. 79. But where the ver- dict is in favor of such a claim, it is not so favored. Hast River Bank v. Hoyt, 22 How. 478. The verdict of a jury should be set aside in every case where there is no evidence to sustain it, or it is against the clear and decided weight of the evidence (Rathbone v. Stanton, 6 Barb. 141 ; Smith v. Tiffany, 36 id. 23. See Mumford v. Smith, 1 Caines, 520 ; Lyle v. Rollins, 25 Cal. 437 ; Purvis v. Coleman, 1 Bosw. 321 ; State v.' Hill, 48 Me. 241 ; Baker v. Bonesteel, 2 Hilt. 397) ; or, whenever the evidence is not suficient to authorize or sustain it. S heldonv. Hudson River R. R. Co., 29 Barb. 226. But a verdict will not be disturbed where the evidence was not strong, or merely because the court would have come to a different con- clusion from that of the jury, on the force and weight of the testimony. Polhamus v. Moser, 7 Rob. 489 ; Williams v. Van- derbilt, 29 Barb. 491,; Mackeyv. New York Central R. R. Co., 27 id. 528 ; Fleming v. Smith, 44 id. 554 ; Doe v. Roe, 28 Ga. 484. And, after two concurring verdicts in a case where there are many witnesses and much testimony on both sides upon a mere question of fact, and there is no misdirection of the jury, a new trial will not be granted, although the court may be of opinion that the verdict is against the weight of evidence. Talcot v. Commercial Insurance Co., 2 Johns. 467 ; Fowler v. Mtna Insurance Co., 7 Wend. 270. In penal actions a new trial is never granted in favor of the plaintiff, merely on the ground that the verdict is against the weight of evidence (Baker v. Richardson, 1 Cow. 77 ; Overseers of Rochester v. Lunt, 15 Wend. 565 ; Wheeler v. Calkins, 17 How. 451 ; The East River Bank v. Hoyt, 22 id. 478) ; or even against uncontradicted evidence. Ranston v. Etteridge, 2 Chit. 273; Comfort v. TJiompson, 10 Johns. 101. So, in slander, actions for a libel, and other actions vindictive in their nature, a verdict for the defendant will not be set aside on the ground that it is against the weight of evidence (Ex parte Baily, 2 Cow. NEW TEIAL. 405 Verdict against evidence — Perverse verdict — Error in charge. 479 ; Paddock v. Salisbury, id. 811 ; Rundell v. Butler, 10 Wend. 119 ; Jarvis v. Hatheway, 3 Johns. 180 ; Hurtin v. Hop- kins, 9 id. 36) ; unless it be clearly the result of prejudice, par- tiality, or corruption, in which case the verdict should be set aside and a new trial granted. See Levi v. Milne, 4 Bing. 195 ; Rundell v. Butler, 10 Wend. 119. As a general rule, wherever, on a disputed question of fact, there is a conflict of testimony, the preponderance must be over- whelming to induce a court to disturb the finding either of a jury, or of a justice who tries the case without a jury. - Morss v. Sherill, 63 Barb. 21 ; Board of Commissioners of Excise of Onondaga County v. Backus, 29 How. 33. See Fry v. Bennett, 9 Abb. 45 ; S. C.,' 3 Bosw. 200 ; S. C. affirmed, 28 N. Y. (1 Tiff.) 324 ^ Strong v. Blake, 46 Barb. 227 ; Reynolds v. Kelly, 1 Daly, 283 ; Arnoux v. Homans, 25 How. 427. And although there may be cases in which the ends of justice demand that the court should possess the power to correct abuses committed by a panel of jurors, that power should be limited by reasonable rules. It must be an abuse ; it must be such a verdict as evinces that it was the result of passion, prejudice, mistake or corruption ; such a verdict as shocks the common judgment ; or such as is without evidence to support it, or is so against the striking pre- ponderance of evidence that a common exercise of judgment demands its reversal. Polhamus v. Moser, 7 Rob. 489 ; Morss v. Sherrill, 63 Barb. 21. See Barrett v. Third Avenue R. R. Co., 45 N. Y. (6 Hand) 628. And the finding of facts by a referee, where there is a conflict of evidence, is as conclusive as the ver- dict of a jury. Smith v. McCluskey, 45 Barb. 610. See Esch- baugh v. The Syracuse Distilling, etc., Co., 27 How. 125. /. Perverse verdict The verdict will be set aside, and a new trial granted, where a jury perversely disregard the explicit directions of the court, given to them in the charge Clark r Richards, 3 E. D. Smith, 89 ; Ayres v. V Far r ell, 4 Rob. 668. And this rule applies whether the charge was correct or not, where it has not been excepted to, inasmuch as the unsuccess- ful party is thereby deprived of the opportunity of excepting Rogers v. Murray, 3 Bosw. 357. See Stevens v. Hauser, 1 Abb 'a 'Error in charge. A new trial may also be granted where the'iudee has erroneously charged or misdirected the jury (Bene- dX Johnson, 2 Lans. 94 ; Hicks v. Foster, 13 Barb. 663 ; Coyle 406 NEW TRIAL. Error in charge. v. City of Brooklyn, 53 id. 41, 62 ; Games v. Piatt, 6 Rob. 270) ; even though, it is not improbable that the jury would have de- cided it the same way under a proper charge {Highland Bank v. Wynkoop, Hill & Denio, 243) ; and even where the verdict found is warranted by the evidence, a new trial will be granted if the chances are equal that it resulted from the misdirection. War dell v. Hughes, 3 Wend. 418. See Castanos v. Bitter, 3 Duer, 370 ; Sayre v. Townsends, 15 Wend. 647 ; Palmer v. Andrews, 7 id. 142. And so a new trial should be granted even though the charge was susceptible of a construction consistent with the law, if, from its indefinite meaning, it was calculated to mislead the jury on a vital point. Harding v. Barney, 7 Bosw. 353. And if questions are submitted to the jury by the judge, concerning which there is no evidence, a new trial will be granted. Dolsen v. Arnold, 10 How. 528 ; Castanos v. Bitter, 3 Duer, 370 ; Small v. Smith, 1 Denio, 583 ; Storey v. Brennan, 15 1ST. Y. (1 Smith) 524 ; Harris v. Wilson, 1 Wend. 511. And so if a question is taken from the jury which ought to be submitted to them (Schuchardt v. Aliens, 1 Wall. 359 ; Utica Ins. Co. v. Badger, 3 Wend. 102. See Car- nes v. Piatt, 6 Rob. 270) ; or if a question is submitted without proper instructions. Marston v. Vultee, 12 Abb. 143 ; S. C, 8 Bosw. 129. A new trial, however, will not be granted on account of the misdirection of the judge, where the verdict has in nowise been affected by it, and no injury has thereby been brought about to the losing party. Bepeyster v. Columbian Ins. Co., 2 Cai. 85 ; Bean v. Hewitt, 5 Wend. 257 ; Jackson v. Timmerman, 12 id. 299 ; Holdane v. Butterworth, 5 Bosw. 1 ; Alston v. Jones, 17 Barb. 277 ; Munroe v. Potter, 22 How. 49 ; S. C, 34 Barb. 358 ; Mansfield v. Wheeler, 23 Wend. 79 ; Potter v. Hopkins, 25 id. 417 ; Deems v. Crook, 1 Edm. 95. But it is for the successful party to show that no injury could possibly have resulted from the error. Greene v. White, 37 K Y. (10 Tiff.) 405; S. C, 4 Trans. App. 382. A new trial will not be granted because the judge charged the jury that, in his opinion, there is not sufficient evidence to estab- lish a certain fact, when at the same time he instructs the jury to consider the evidence and to decide as they shall find the truth to be. Gardner v. Picket, 19 Wend. 186. See McKee v. People, 36 N. Y. (9 Tiff.) 113 ; S. C, 1 Trans. App. 1 ; 34 How. 230. Nor will a new trial be granted for matters suggested in a charge not NEW TRIAL. 407 Refusal to charge — Granting nonsuit — Refusing to nonsuit. pertinent to the case, unless the attention of the judge is at the time called to such suggestions and he refuses to explain. lb. See Lansing v. Russell, 13 Barb. 510 ; Jackson v. Timmerman, 12 Wend. 299 ; Petty v. Anderson, 3 Bing. 170 ; Davidson v. Stanley, 2 Man. & Qv. 221. And even a recommendation to find a particular verdict is not suffrcient ground for a new trial, where the evidence warrants the verdict and the jury are left at liberty to decide. Dean v. Hewitt, 5 Wend. 257. Misapprehension of the judge as to material facts, and a direc- tion to the jury accordingly, are irresistible reasons for a new trial. Cannon v. Alsbury, 1 A. K. Marsh. 76. h. Refusal to charge. When the judge, after being so re- quested, has refused to charge upon any important point, a new trial will be granted. Hill v. Beebe, 13 1ST. Y. (3 Kern.) 556 ; Walter v. Post, 6 Duer, 363 ; S. C, 4 Abb. 382. But where the attention of the court has not been expressly called to the point in respect to which the jury should properly be instructed, his omission to give the proper instructions will not be a ground for a new trial. Atlantic Dock Co. v. City of Brooklyn, 3 Keyes, 444 ; S. C, 3 Trans. App. 305 ; Parsons v. Brown, 15 Barb. 590 ; Graser v. Stellwagen, 25 1ST. Y. (11 Smith) 315. A judge at the trial is not bound, without the request of parties, to give any in- structions to the jury. Haupt v. PoMmann, 1 Rob. 121 ; S. C, 16 Abb. 301. See ante, p. i. Granting nonsuit. Whenever the judge at the circuit has granted a nonsuit in a case where the questions of fact in- volved in the- issues should properly have been left to the jury for determination, the appellate court will reverse the judgment and grant a new trial. Rider v. Pond, 19 N". Y. (5 Smith) 262 ; Silliman v. Lewis, 49 K Y. (4 Sick.) 379 ; Rad- way v. Briggs, 37 N. Y. (10 Tiff.) 256 ; S. C, 35 How. 422 ; 4 Trans. App. 98 ; CoyJcendall v. Eaton, 37 How. 438 ; S C, 55 Barb. 188 ; Ernst v. Hudson River R. R. Co., 35 N. Y. (8 Tiff.) 9 ; S. C, 32 How. 61 ; 3 Abb. N". S. 82. The cases in which the granting of a nonsuit will be error, and the mode of presenting the question for review, have been sufficiently discussed elsewhere. / Refusing to nonsuit. The denial of a motion for a non- suit does not necessarily imply that the plaintiff is entitled to a verdict upon the proof as it stands, but simply asserts that the evidence adduced is of such a character as to cause the 408 FEW TEIAL. Refusing to nonsuit — Admitting improper evidence. decision of the questions of fact involved to fall within the province of the jury. Ross v. Mayor, etc., of New York, 4 Rob. 49. Whenever the judge at the circuit erroneously decides that the evidence adduced is of such a character, the appellate court will, as a general rule, correct the error by ordering a new trial. See Dascomb v. Buffalo & State Line R. R. Co., 27 Barb. 221 ; Lomerv. Meeker, 25 N. Y. (11 Smith) 361 ; Robinson v. McManus, 4 Lans. 380 ; Carpenter v. Smith, 10 Barb. 663. The rule is well settled that the right to nonsuit and the duty to nonsuit are correlative. lb. The cases in which the judge at the circuit may properly grant or refuse to grant a nonsuit have been pointed out in a preceding cha*pter. See Trial by Jury, ante, p. 158 to 165. The general principle must not, however, be overlooked, that where the defendant moves for a nonsuit on the ground of insufficiency of proof, and the motion is improperly denied, the defeated party will not be entitled to a new trial, if at a subsequent stage of the trial the defect in proof is supplied. Robert v. Good, 36 N. Y. (9 Tiff.) 408 ; S. C, 2 Trans. App. 103 ; Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N". Y. (1 Kern.) 102 ; Morgan v. Reid, 7 Abb. 215 ; Kent v. Har court, 33 Barb. 491 ; Schwerin v. McKie, 5 Rob. 404 ; Barrick v. Austin, 21 Barb. 241 ; Mayor, etc., New York v. Mason, 1 Abb. 344 ; S. C, 4 E. D. Smith, 142 ; Breidert v. Vincent, 1 id. 542 ; Colegrove v. Harlem & New Raven R. R. Go., 6 Duer, 382 ; Colvin v. Burnet, 2 Hill, 620. A verdict will be set aside and a new trial granted on the ground of an erroneous disregard of a material variance. Salters v. Genin, 3 Bosw. 250 ; S. C, 7 Abb. 193 ; Caflin v. Hansen, 1 Du.er, 309 ; Johnson v. Mcintosh, 31 Barb. 267 ; Texier v. Gouin, 5 Duer, 389. And, on the other hand, an omission to disregard, or to grant an amendment in respect of a variance wholly imma- terial, is sufficient ground for a new trial. Rogers v. Verona, 1 Bosw. 417 ; Willis v. Orser, 6 Duer, 322. 7c. Admitting improper evidence. A new trial will be granted where improper testimony, which may have influenced the ver- dict of the jury, has been received under exception on the trial. Baird v. Gillett, 47 N. Y. (2 Sick.) 186 ; Clark v. Vorce, 19 Wend. 232 ; Ellis v. Short, 21 Pick. 142 ; Buddington v. Shearer, 22 id. 427 ; Anthoine v. Coit, 2 Hall, 40 ; Gillet v. Mead, 7 Wend. NEW TRIAL. 409 Admitting improper evidence. 193 ; Farmers' Bank v. Whinfield, 24 id. 419 ; Clark v. Cran- dall, 3 Barb. 612 ; Dresser v. Ainsworth, 9 id. 619 ; Boyle v. Qolman, 13 id. 42 ; Williams v. Fitch, 18 N. Y. (4 Smith) 546 ; Erben v.Lorillard, 19 N. Y. (5 Smith) 299 ; Wilson v. Wilson, 4 Keyes, 413. See Osgood v. Manhattan Co., 3 Cow. 612 ; Mar- quand v. Webb, 16 Johns. 89. If improper evidence be given upon the trial, although it may- be merely cumulative, it will be a ground for the reversal of the judgment. Osgood v. Manhattan Co., 3 Cow. 612 ; Baird v. Oil- lett, 47 N. Y. (2 Sick.) 186. It has been held, however, that, though the admission of improper evidence was objected to, a new trial would be denied, unless there should be strong prob- able grounds for believing the merits had not been fully and fairly tried, and that injustice had been done. Depeyster v. Columbia Ins. Co., 2 Cai. 85 ; Crary v. Sprague, 12 Wend. 41 ; Northrop v. Wright, 24 id. 221. See Forrest v. Forrest, 25 N. Y. (11 Smith) 501. But see Jaeger v. Kelly, 7 Rob. 586. In equitable actions the strictness of the rule is relaxed, and where the error complained of was the admission of improper testimony, a new trial will not be ordered, unless the court, taking the whole of the evidence together and connecting it with the judge's charge, thinks that injustice has' been done by the error committed, and is dissatisfied with the verdict. Apthorp v. Comstock, 2 Paige, 482 ; Mulock v. Mulock, 1 Edw. Ch. 14 ; Patterson v. Acker son, id. 96 ; Lansing v. Russell, 13 Barb. 520 ; Clayton v. Yarrington, 33 id. 144 ; Forrest v. Forrest, 25 N. Y. (11 Smith) 501, 512 ; Sutherland v. Rose, 47 Barb. 144 ; Clark v. Brooks, 2 Abb. N. S. 385 ; S. C, 2 Daly, 159 ; Tatham v. Wright, 2 Rus. & Myl. 1 ; O Connor v. Cook, 8 Ves. 535 ; Warden of St. PauVs v. Morris, 9 id. 165 ; Pemberton v.Pemberton, 11 id. 50 ; Bootle v. Blundell, 19 id. 494, 503. The admission of improper evidence, which could not have varied the result of the action, is not ground for a new trial. Worrall v. Parmelee, 1 N. Y. (1 Comst.) 519 ; Smith v. Kerr, 1 Edm. 190 ; Barton v. City of Syracuse, 37 Barb. 292 ; S. C. affirmed, 36 IS. Y. (9 Tiff.) 54 ; S. C, 1 Trans. App. 317 ; Lowery v. Steward, 3 Bosw. 505 ; S. C. affirmed, 25 1ST. Y. (11 Smith) 239 ; Klock v. Buell, 56 Barb. 398. Neither will the admission of improper testimony, in relation to a particular fact, bat which fact is immaterial to the issue, furnish sufficient cause for a new trial. Lamb v. Camden & Amboy Railroad Co., 2 Daly, 454 : Vol. III.— 52 410 NEW TRIAL. ^Rejecting proper evidence. Kimberlin v. Faris, 5 Dana, 533 ; Barry v. Bennett, 7 Mete. (Mass.) 354 ; Ahem v. Standard Life Ins.,, Co., 2 Sweeny, 441 ; Watson v. Lisbon Bridge, 2 Shep. 201. See Wilson v. Wilson, 4 Keyes, 413. And an error in the admission of improper evidence may be disregarded where proper evidence is afterward introduced to prove the same facts, or the facts themselves are admitted by the pleadings. Castree v. Qavelle, 4 E. D. Smith, 425. I. Rejecting proper evidence. The refusal of the judge to ad- mit a witness or evidence upon any material question, after the right to submit the same has been properly urged on the trial, is also ground for a new trial. Robison v. Lyle, 10 Barb. 512 ; Mills v. Carnly, 1 Bosw. 159; McDougall v. Fogg, 2 id. 387. See Snell v. Loucks, 12 Barb. 385 ; Ayres v. O'Farrell, 4 Eob. 668. But a new trial will not be granted for the refusal of the judge to admit a question which was not shown to be relevant (Dodge v. New York & Washington Steamship Co., 37 How. 524 ; S. C, 6 Abb. 1ST. S. 451 ; 1 Sweeny, 453 ; Fair child v. Chase, 24 Wend. 381) ; nor for the rejection of evidence which, if it had been admitted, would not have altered the case, or established any fact not already proved by other means. Alexander v. Bar- Jeer, 2 Tyr. 140 ; Hunt v. Bennett, 4 E. D. Smith, 647 ; or if the court, judging upon the whole record, is satisfied that the verdict is right. Pemberton v. Pemberton, 11 Ves. 52 ; Bootle v. Blun- dell, 19 id. 503. See Sprague v. Eccleston, 1 Lans. 74. But, when evidence has been improperly rejected, and the judgment is sought to be sustained on the ground that the facts established by the verdict show that the evidence, if admitted, would not have changed the result, it must appear that such is necessarily the effect of the verdict ; not that* the jury might, but that they must, have found as claimed. Starbird v. Barrons, 43 JST. Y. (4 Hand) 200. Neither will a new trial be granted on the ground that evidence was improperly excluded, where at another stage of the trial conclusive evidence upon the same point was admitted, and the party receives no injury from the exclusion. Park Bank v. Tilton, 15 Abb. 384. But, if the evidence under the general issue is competent for any purpose, although inadmissible for other purposes in the action, its exclusion is error, and a new trial will be granted. Button v. McCauley, 5 Abb. K S. 29 ; S. C, 4 Trans. App. 447 ; reversing S. C, 38 Barb. 413. NEW TBJAL. 411 Excessive damages. The same rules, as to the admission or rejection of evidence, are likewise applicable when the trial is by the court or referees, and a new trial will be -granted on application of the party in- jured, if an important error of the nature indicated has been committed. See Demelt v. Leonard, 19 How. 182 ; Stanton v. Wetherwax, 16 Barb. 259 ; Belden v. Nicolay, 4 E. D. Smith 14 • Hahn v. Van Dor en, 1 id. 411; Williams v. Fitch, 18 N. y' (4 Smith) 546 ; Brown v. Colie, 1 E. D. Smith, 265 ; Johnson v. Mcintosh, 31 Barb. 267 ; The Rippowam Co. v. Strong, 2 Hilt. 52 ; Belmont v. Coleman, 1 Bosw. 188 ; S. C. affirmed, 21 N. Y. (7 Smith) 96 ; Gellatly v. Lowery, 6 Bosw. 113 ; Barry v. Galvin 37 How. 310. to. Excessive damages. Although, as a general rule, the ver- dict of a jury on a question of damages is conclusive, yet the court may, in any case, and frequently does in actions other than for personal or willful injuries, grant a new trial upon the ground of excessive damages. Sherry v. Freclting, 4 Duer, 452 ; Finch v. Brown, 13 Wend. 601; Moadinger v. Mechanics' Fire Ins. Co., 2 Hall, 490 ; Collins v. Albany & Schenectady Railroad Co., 12 Barb. 492 ; Hewlett v. Cruchley, 5 Taunt. 277 ; Jones v. Sparrow, 5 T. R. 257 ; DucJcer v. Wood. 1 id. 277 ; Cassin v. Delany, 6 Abb. N. S. 1; S. C, 38 N. Y. (11 Tiff.) 178. But, in actions for personal injuries, the courts will closely scrutinize the circumstances, and unless it clearly appear that the jury committed some gross and palpable error, or acted under some improper bias, inference or prejudice, or have totally mis- taken the rules of law by which the damages are to be regulated, a new trial will not be granted on this ground. Collins v. Albany 6 Schenectady Railroad Co., 12 Barb. 492 ; Clapp v. The Hud- son River Railroad Co., 19 id. 461; Murray v. The Hudson River Railroad Co., 47 id. 196 ; 48 N. Y. (3 Sick.) 655. Where, however, it clearly appears, in such cases, that the damages are excessive, a new trial will be granted. lb. See Cassin v. Delany, 6 Trans. App. 199 ; S. C, 38 N. Y. (11 Tiff.) 178 ; 6 Abb. N. S. 1. In actions for willful injuries, involving moral delinquency on the part of the defendant, the cases are still more rare in which a second trial has been ordered on the ground of excessive dam- ages Such are actions for libel : Fry v. Bennett, 3 Bosw. 200 ; S. C, 9 Abb. 45 ; S. C. affirmed, 28 K. Y. (1 Tiff.) 324 ; Coleman v. Southwiclc, 9 Johns. 45 ; Southwick v. Stevens, 10 id. 443 ; Root v. King, 7 Cow. 613. Slander: Cole v. Perry, 8 Cow. 214; 412 NEW TRIAL. Excessive damages. Moody v. Baker, 5 id. 351; Rycltman v. Parkins, 9 Wend. 470 ; Ostrom v. Calkins, 5 id. 263 ; Douglass v. Tousey, 2 id. 352. Malicious prosecution : Marquissee v. Qrmston, 15 Wend. 368 ; Bump v. Betbs, 23 id. 85. Or, assault and battery : Blum v. Higgins, 1 Hilt. 147 ; S. C, 3 Abb. 104 ; M' Connell v. Hampton, 12 Johns. 234. In such cases, other elements besides mere compensation for the injury sustained by the plaintiff may properly enter into the verdict. The jury are allowed, and even advised, to consider what the interests of society, as well as justice to the plaintiff, require ; and, by their verdict, to punish the offender, as well as make compensation for the injury ; and, unless the verdict is so extravagant as to excite a suspicion that the jury have been con- trolled by improper influences, the court will not interfere. Justice Harris, in Collins v. The Albany & Schenectady Hail- road Co., 12 Barb. 492. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line, for they have no standard by which to ascertain the excess. Coleman v. SouthwicJc, 9 Johns. 45. A new trial will not be granted in an action for crim. con. or seduction, merely because the damages appear to the court to be excessive ; but the court must be satisfied that the jury acted under the influence of undue motives, or of gross error or mis- conception on the subject. Bennett v. Allcott, 2. T. R. 166; Chambers v. Caulfield, 6 East, 245 ; Duberley v. Gunning, 4, T. R. 651 ; Trams v. Barger, 24 Barb. 614 ; Ingerson v. Miller, 47 id. 47. See, also, Smith v. Masten, 15 Wend. 270 ; Mulvehall v. Millward, 11 1ST.' Y. (1 Kern.) 343 ; Bain v. Wycoff, 7 1ST. Y. (3 Seld.) 191 ; Moran v. Dawes, 4 Cow. 412. In Sargent v. Denniston, 5 Cow. 106, the court refused to inter- fere with the verdict on account of excessive damages, although it was conceded by the plaintiff' s counsel that there was no seduc-* tion, the court saying that the damages were not so flagrantly Outrageous and extravagant as necessarily to evince intemper^ ance, passion, partiality or corruption on the part of the jury ; and that, where that is not the case, the court will not undertake to set their judgment on a question of damages, in an action of this nature, in opposition to the judgment of the jury. So in an action for enticing away the plaintiff' s : wife, the court will not grant a new trial on the ground that the damages given by the verdict are excessive, the amount of damages awarded NEW TRIAL. 413 Inadequate damages. not being conclusive evidence on that point, unless facts appear showing' that the jury were actuated by improper motives. Scherpf v. Szadeczky, 4 E. D. Smith, 110 ; S. C, 1 Abb. 366. In actions for breach of promise of marriage, and especially if accompanied with seduction, the courts are equally cautious about interfering with the verdict on the ground of excessive dam- ages, and a new trial will not be granted unless it clearly appears that the jury acted under prejudice, partiality or gross ignorance or disregard of their duty. Fidler v. McKinley, 21 111. 308 ; Waters v. Bristol, 26 Conn. 398. Thus, a verdict of $5,000 for breach of promise, coupled with seduction, was not held to be so excessive as to justify reversal. Goodall v. Thurman, 1 Head (Tenn.), 209. In some cases, where the damages are deemed by the court to be excessive, a new trial will be granted, unless the plaintiff will stipulate to remit a specified portion of the damages assessed. Murphy v. The Hudson River R. R. Co., 47 Barb. 196 ; 48 N. T. (3 Sick.) 655 ; Clapp v. Hudson River R. R., 19 id. 461 ; Dib- lin v. Murray, 3 Sandf. 19 ; Potter v. Thompson, 22 Barb. 87 ; Collins v. Albany & Schenectady R. R., 12 id. 492. n. Inadequate damages. The instances in which a new trial has been granted on this ground are of rare occurrence ; but a verdict for a grossly inadequate amount stands upon no higher ground in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount, and the power of the court to grant a new trial, where the damages are inade- quate, is undoubted. Richards v. Sandf ord, 2 E. D. Smith, 349 ; S. C, 12 1ST. Y. Leg. Obs. 94 ; Collins v. Albany & Schenectady R R Co , 12 Barb. 492 ; Robbins v. Hudson River R. R., 7 Bosw. 1 ; McDonald v. Walter, 40 K. Y. (1 Hand) 551. Thus, in an action for the defendant's negligence, whereby the plaintiff sustained severe bruises and lost a tooth, a verdict for the plain- tiff for $10 only was held to be grossly inadequate, and a new trial was granted. Richards v. Sandf ord, 2 E. D. Smith, 349 ; S C 12 N Y Leg. Obs. 94. So where the verdict was for the plaintiff, with one farthing damages for a broken leg, a new trial was granted. Armytage v. Haley, 4 Q. B. 917. _ A new trial will not, however, be granted in every case m which the damages awarded are too small to fully compensate ther plain- tiff for the injury sustained. See Apps v Bay 14 C. B. 112 ; Bradlaugh v. Edwards, 11 C. B. F. S. 377. And, instead of 414 NEW TEIAL. Perjured evidence. granting a new trial absolutely, the court will sometimes direct a new trial, unless the defendant should consent to a specified increase in the amount of damages found. Richards v. Sand- ford, 2 E. D. Smith, 349 ; S. C., 12 N. Y. Leg. Obs. 94 ; Army- tage v. Haley, 4 Q. B. 917. This practice should, however, be adopted only in a clear case. James v. Morey, 44 111. 352 ; Carr v. Miner, 42 id. 180. It has been held that the Code does not permit a motion for a new trial, on the ground of inadequate damages, to be heard upon the judge's minutes. Moore Y.Wood, 19 How. 405. But, in a late case in the court of appeals {McDonald v. Walter, 40 N. Y. [1 Hand] 551), the judge who presided, upon a motion made upon his minutes, granted an order setting the verdict aside and awarding a new trial, on this ground ; and it was held, that he had the jurisdiction and the right to make such order, and this, although upon the evidence a verdict for the defend- ants would not have been disturbed. o. Perjured evidence. A new trial will be granted if the wit- nesses on whose testimony the verdict was obtained have since been convicted of perj ury. Petrie v. Milles, 3 Dougl. 27; Benfield v. Petrie, id. 24 ; Allen v: Young, 6 Monr. 136 ; Great Palls Manuf. Go. v. Mafhes, 5 N. H. 574. But the mere finding of an indictment for perjury before conviction is not sufficient {Seeley v. Mayhew, 4 Bing. 561. See Pott v. Parker, 2 Chit. 269), though the court will, in some instances, stay the proceedings until such indictment has been tried. Benfield v. Petrie, 3 Doug. 24 ; Tidd. Pr. 907. So a new trial will be granted where the testimony of witnesses on which a verdict has proceeded be founded on and derive its credit from particular circumstances, and those circumstances be afterward clearly falsified by affidavit. Lister v. Mundell, 1 B. & P. 427. And if subornation of witnesses have been discovered since, the former trial, a new trial will be awarded. Fdbrilius v. Coclt, 3 Burr. 1771. An affidavit by the defendant that the plaintiff's witnesses had been guilty of perjury, is held not to be sufficient ground for a new trial in an action for an assault. Proctor v. Simmons, 9 Moore, 581. Neither is it a sufficient ground for a new trial, that a witness having testified that the character for truth of another witness was not good, admitted, on cross-examination, that, at a NEW TRIAL. 415 Error in giving evidence — Error in exercise of discretion. former period, he had declared that his character was good. Ireat v. -Browning, 4 Conn. 408. p. Error in giving evidence. Where it clearly appears that a witness has fallen into a mistake in giving his testimony upon a material point, and the circumstances of the case are such as to render it probable that the mistake of the witness had the effect of turning the verdict of the jury, a new trial will be granted. Richardson v. Fisher, 7 Moore, 546 ; S. C, 1 Bing. 145 ; Coddington v. Sunt, 6 Hill, 595 ; Hewey v. Nourse, 54 Me. 256. Thus, where a plaintiff was nonsuited, because, as appeared by the defendant's evidence, an agreement contained more than the proper number of words for the stamp it bore ; but it after- ward turned out that the witness called at the trial had mis- counted the number of words, a new trial was granted on affidavit of that fact. Dudley v. Robins, 3 C. & P. 26. Where, however, the testimony of a witness, who was mis- taken, is merely cumulative, a new trial will not be granted. Mersereau v. Pearsall, 6 How. 293. And the mere contradic- tion of witnesses is not of itself sufficient ground for a new trial, even though the judge directed the jury contrary to their finding. Sprague v. Michell, 2 Chit. 271. Nor is the affidavit of one party contradicting the witnesses on the other side alone sufficient. Feise v. Parkinson, 4 Taunt. 640. In an action against one as joint maker of a promissory note, where the defense of forgery was set up by the defendant, a new trial was granted on the ground that the note, which at the time of the trial was lost and could not be produced, had since been found. Piatt v. Munroe, 34 Barb. 291. q. Error in exercise of discretion. A new trial may be granted, where, upon an examination of the whole case, it appears that the judge has improperly exercised his discretion to the preju- dice of either party to the action. Thus, a new trial was granted on the ground of the improper refusal by the judge to permit the introduction of new and material evidence after the case had been closed. Mercer v. Sayre, 7 Johns. 306. The cases, how- ever, in which the court will interfere on this ground, are exceed- ingly rare ; the application in most instances being denied. Ford v. Niles 1 Hill, 300 ; Mealtim v. Anderson, 11 Barb. 215 ; Sheldon v. Wood, 2 Bosw. 267. And, in general, a questionable exercise of discretion on the part of the judge constitutes *no ground for a new trial where no positive legal right is violated. 416 NEW TRIAL. Newly-discovered evidence. Anthony v. Smith, 4 Bosw. 503 ; Oheeney v. Arnold, 18 Barb. 434 ; Henry v. Lowell, 16 id. 268 ; Peck v. Richmond, 2 E. D. Smith, 380 ; Chancel v. Barclay, 1 id. 384 ; Silverman v. ifyre- msyi, 3 id. 322 ; Stacy v. Graham, 3 Duer, 444 ; /S£ JoAtj v. Northrup, 23 Barb. 25. , r. Newly -discovered evidence. Another ground upon which application may be made for a new trial is, that new and material evidence has been discovered since the trial ; but the application will be granted only in accordance with the follow- ing well-established principles thus stated in Seeley v. Chittenden, 4 How. 265. See, also, People v. Superior Court of New York, 5 Wend. 114 ; S. C. affirmed, 10 id. 286 ; Jackson v. Malin, 15 Johns. 293 ; Vandervoort v. Smith, 2 Cai. 155 ; Parshall v. Elinck, 43 Barb. 203. 1. The testimony must have been discovered since the former trial. 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case and not to impeach the testimony of a former witness. 5. It must not be cumulative. See, also, Raphaelsky v. Lynch, 12 Abb. N. S. 224. Thus, the application for a new trial on the ground of newly- discovered evidence will be denied if the existence of the new evidence was known to the applicant before the trial, even though at the time of the trial it had been forgotten by him. Fleming v. Hollenbeck, 7 Barb. 271 ; Meyer v. Fiegel, 38 How. 424 ; Lodge v. New York & Washington Steamship Co., 37 id. 524 ; S. C, 6 Abb. N". S. 451. So, if the applicant by the exercise of reasonable diligence might have procured the evidence, a new trial will not be granted on this ground {Oakley v- Sears, 7 Rob. Ill ; People v. Marks, 2 Park. 673 ; S. 0., 10 How. 261 ; Leavy v. Roberts, 2 Hilt. 285 ; S. C, 8 Abb. 310 ; Floyd v. Jayne, 6 Johns. Ch. 479 ; Best v. Starks, 24 How. 58 ; Fellows v. Emperor, 13 Barb. 92) ; or, if the new evidence is merely cumulative {Sheldon v. Stryker, 27 How 387 ; S. C, 42 Barb. 284 ; Adams v. Bush, 23 How. 262 ; S. C. affirmed, 2 Abb. N". S. 104 ; 25 How. 592 n ; Peck v. Hiler, 30 Barb. 655 ; Williams v. The People, 45 id. 201 ; S. C. affirmed, 33 TS. Y. [6 Tiff.] 688 ; Lawrence v. Fly, 38 N. Y. [11 Tiff.] 42 ; S. C, 5 Trans. App. NEW TRIAL. 417 Ejectment. 128 ; Nason v. Cockroft, 3 Duer, 366 ; Brisbane v. Adams, 1 Sandf. 195 ; PiJce v. Evans, 15 Johns. 210 ; Steinbach v. Colum- bian Ins. Co., 2 Cai. 129 ; Ualsey v. Watson, 1 id. 24) ; or, goes merely to impeach the testimony of a witness at the former trial. Bunn v. Hoyt, 3 Johns. 255 ; Shumway v. Fowler, 4 id. 425 ; Meakim v. Anderson, 11 Barb. 215 ; Beach v. Tooker, 10 How. 297; Harrington v. Bigelow, 2 Denio, 109. See Jackson v. Kinney, 14 Johns. 186 ; Jackson v. Hooker, 5 Cow. 207. So, where the newly-discovered evidence would not, probably, change the result, a new trial will not be granted. Powell v. Jones, 42 Barb. 24. But the new evidence need not necessarily be conclusive. "Wheelwright v. Benedict, 2 N. Y. Leg. Obs. 27. •Motions for a new trial upon the ground of newly-discovered evidence are not governed by any well-defined rules, but depend in a great degree upon the particular circumstances of each case. They are addressed to the sound discretion of the court, and from that discretion there is no appeal. Barrett v. Third Avenue JR. B. Co., 45 N. Y. (6 Hand) 628. As illustrations of the class of cases in which new trials will be granted on the ground of newly-discovered evidence, see Nash v. Wetmore, 33 Barb. 155; Simmons v. Fay, 1 E. D. Smith, 107 ; Butterworth v. Warth, 4 Bosw. 624. s. Ejectment. The rules applicable to other cases, as to grant- ing new trials, have never been rigidly enforced by the courts in actions of ejectment. Jackson v. Laird, 8 Johns. 489 ; Jackson v. Dickenson, 15 id. 309. And by the provisions of the Revised Statutes, a new trial is claimable as of right, in ejectment, by the unsuccessful party, at anytime within three years after judgment against him, upon payment of costs and damages. 2 R. S. 309 (318), § 37. And the court, upon subsequent application made within two years after the rendition of judgment upon such sec- ond trial, if satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and es- tablished, may vacate the judgment and grant a third trial. lb. Two trials only can, however, be granted under these pro- visions of the statute. lb.; Bellingers. Martindale, 8 How. 113. And if the action has been three times tried m an inferior court, a third new trial will not be allowed in the supreme court, on the action being transferred thereto. Brown v. Crim, 1 Denio, 665. Nor was it the intention of the statute that each party should be entitled to two new trials, although one party should succeed Vol. IIL — 53 418 NEW TRIAL. Ejectment. at one trial, and the other at the next. Bellingers. Marlindale, 8 How. 113. A third trial will not be granted to a party who has lost his cause by overlooking a point of law or by conceding a fact, or omitting to seek a remedy by appeal from an erroneous decision, unless something to throw him off his guard is established. Wright v. Milbarik, 9 Bosw. 672. The time prescribed by the statute, within which a new trial is obtainable, runs from the date of the first judgment in the action, and not from the date of the affirmance of that judgment on appeal. Chautauqua County Bank v. White, 23 N. Y. (9 Smith) 347. It is further provided by the Revised Statutes, that within five years after the docketing of a judgment in ejectment taken by default, the court may, on application of the defendant, his heirs or assigns, and upon payment of all costs and damages recovered thereby, vacate the judgment and grant a new trial, if such court shall be satisfied that justice will be promoted, and the rights of the parties more satisfactorily ascertained and established. 2 R. S. 309 (318), § 38; The statutory right to a new trial in ejectment has not been interfered with by the provisions of the Code, and it still exists in actions for the recovery of real property under that instru- ment. Cooke v. Passage, 4 How. 360 ; S. C, 3 Code R. 88 ; Rog- ers v. Wing, 5 How. 50 ; Evans v. Millard, 16 1ST. Y. (2 Smith) 619 ; Lang v. Bopke, 1 Duer, 701 ; S. C, 10 N. Y. Leg. Obs. 70. The provisions of the statute do not, however, apply to eject- ment for the non-payment of rent. Christie v. Bloomingdale, 18 How. 12. Nor are they applicable to controversies submitted without action by the agreement of the parties to the general term {Lang v. Bopke, 1 Duer, 701 ; S. C, 10 1ST. Y. Leg. Obs. 70), or, to proceedings instituted for the purpose of determining con-, flicting claims to real property. Malin v. Hose, 12 Wend. 258. In analogy with the statutory provisions above stated, the courts will be disposed to grant a new trial in an equitable action, which in effect determines the title to land, upon grounds which, in an ordinary case, would be deemed insufficient. Clay- ton v. Tarrington, 33 Barb. 144. See Clark v f Brooks, 2 Abb. JST. S. 385 ; S. C, 2 Daly, 159. But a proceeding instituted by an heir under the Laws of 1853, chapter 238, is not an action of ejectment so as to entitle the un- NEW TRIAL. 419 Affidavit upon -which, to move for a new trial in an action to recover possession, etc. successful party to a new trial as a matter of right, under the provisions of the Revised Statutes. Marvin v. Marvin, 11 Abb. N. S. 102. Any number of new trials may, of course, be ordered in actions of ejectment, as in other actions, where application is made on any of the grounds heretofore noticed, as, for example, erroneous rulings on the trial, verdict against weight of evidence, admitting improper evidence, and the like. Affidavit upon which to move for a new trial in an action to recover possession of real property. {Title of cause.) {Venue.) J. N., being duly sworn, says : I. That he is the (plaintiff) in this action. II. That this action was brought to recover the possession of real property, to wit, a certain house and lot in the city of III. That the action was tried at a circuit court, held in and for the county of , at , in. said county, before Mr. Justice O. P. and a jury ; and that on the day of , 18 , said jury returned a verdict in favor of the (defendant). IV. That judgment was entered on said verdict herein within (three) years last past, on the day of , 18 , in favor of the (defendant). V- That deponent is ready and willing to pay all costs and damages awarded against him as a condition of obtaining a new {Should the application be for a second new trial, the facts which show that justice will be thereby promoted should be set forth.) t. Retrial by consent. Where a suit has been regularly and properly prosecuted to a final judgment, by which substantial justice has been decreed, the parties are not entitled, as a matter of right, to invoke the interposition of the court, for the purpose of having the cause retried at the expense of the public, although both litigants join in the application for a new triaL Nichols v. Sixth Avenue Railroad Co., 10 Bosw. 260 ; S. C. affirmed, 38 TS: Y. (11 Tiff.) 131. . ,' , . , . u Equity cases. The strict rule applicable to new trials m courts of law has never been recognized in courts of equity -and in actions of an equitable nature, in which issues have been framed for trial by jury, the court may grant or deny the motion for a new trial for reasons which would not be sufficient to induce 420 NEW TRIAL. Proceedings to obtain new trial. or authorize a like decision in an action at law. Clayton v. Yarrington, 33 Barb. 144. The trial, in such cases, is simply for the information of the court with whom the ultimate decision of the case rests, and it is not, therefore, necessarily conclusive. The court may, if it thinks fit, make no use of the verdict, but treat it as a nullity. Clark v. Brooks; 2 Daly, 159 ; S. C. 1 , 2 Abb. N. S. 385 ; G-reenl. Ev. 527. And, although the court would have been satisfied if the verdict had been the reverse of what it is, it will not, for that reason, send the case back for another trial. There must be something which shows that the verdict is clearly wrong — something which satisfies the court that it cannot be right. Northam Bridge & Road Co. v. London & Southamp- ton Railway Co., 11 Sim. 42. The general rule to be obtained from the cases is, that whether the error complained of was the admission of improper testimony, or the rejection of that which was proper, or misdirection on the part of the judge, another trial will not be ordered, unless the court, taking the whole of the evidence together, and connecting it with the judge's charge, thinks that injustice has been done by the error committed, and it is dissatisfied with the verdict. Clark v. Brooks, 2* Abb. N. S. 385; S. C, 2 Daly, 159 ; Forrest v. Forrest, 25 JST. Y. (11 Smith) 501, 512; Lansing v. Russell, 13 Barb. 510 ; S. C, 2 JST. Y. (2 Comst.) 563 ; 4 How. 213 ; 2 Code E. 138 ; Apthorp v. Comstock, 2 Paige, 482 ; Mulock v. Mulook, 1 Edw. Ch. 14 ; Patterson v. Acker son, 1 id. 96 ; Head v. Head, 1 Turn. & Euss. 138, 141; Barker v. Ray, 2 Euss. 63; Bootlei : Blundell, 19 Ves. 503 ; Pemberton v. Pemberton, 11 id. 52 ; Warden of St. Paul's Church v. Morris, 9 id. 165 ; Slaney v. Wade, 7 Sim. 595. Section 3. Proceedings to obtain new trial. a. In general. If, for any of the reasons already noticed, a party to an action believes that he has good and sufficient ground upon which to make application for a new trial, he at once begins to make the necessary arrangements for that purpose, and a thorough acquaintance with the proper mode of proceeding be- comes all-important. At common law it is necessary, for the purpose of obtaining a new trial, to prepare a case or a bill of exceptions. If the motion is founded upon a question of law, it is presented with excep- tions ; but, if founded upon facts, it is presented as a case ; or, it may be made upon both, and then it is a case with exceptions. See 1 Burr. Pr. 261, 469. NEW TRIAL. 421 In jury cases — Where the trial is by the court. Under the Code, section 264, in cases tried by a jury, the motion for a new trial may be made upon the judge's minutes, before the same judge who tried the cause, and before the court adjourns, a proceeding wholly unknown to the common law. Wilcox v. Hoch, 62 Barb. 509. So, under the Code, as amended in 1867, a motion for a new trial may be made on a case or exceptions, where a question of fact has been tried by the court, and the decision does not author- ize a final judgment, but directs further proceedings before a referee or otherwise. Code, § 268. o. In jury cases. The practice relative to motions for new trials under the Code, as prescribed by sections 264, 265, applies only to cases in which verdicts have been rendered in trials before juries, and has no reference to those cases in which the trial has been had before the court without a jury. See Watson v. Scri- ven, 7 How. 9; Jac&sonv. Fassitt, 21 id. 279; S. C, 33 Barb. 645 ; 12 Abb. 281. In an action which has been thus tried before a jury, a motion for a new trial may be made upon any ground which affords sufficient reason for granting a new trial, either on motion or on an appeal from the judgment. Thus, the motion may be made and a new trial granted for errors in law committed by a judge at the circuit, notwithstanding the existence of a remedy by appeal. Potter v. Chadsey, 16 Abb. 146. As a gen- eral rule, whatever would be a sufficient ground for setting aside a verdict will justify an order granting a motion for a new trial. Spatz v. Lyons, 55 Barb. 476. The motion for a new trial, after a verdict by a jury, may be made upon a case, or upon exceptions, or upon the minutes of the judge before whom the cause was tried. Code, §§ 264, 265. The practice upon the motion in either case will be more definitely pointed out elsewhere. c. Where the trial is oy the court. Prior to the amendment ef the Code in 1867, the only mode of obtaining a review on the merits of the decision of a judge, on a trial of fact by the court, was by an appeal from the judgment entered thereon to the gen- eral term. The mode of reviewing either errors m law or m fact where the trial was by the court, was entirely distinct from that adopted where the trial was by a jury ; and a review of a judge s deds on on a trial of an issue of fact, could not be had by a motion toa new trial. See Burnett v. Phalon, 4 Bosw. 622 ; ^Tv%lS- 31 Barb. 171 ; Malloy v. Wood, 3 Abb. 369 ; 422 NEW TEIAL. Where the trial is by the court. Matter of Livingston, 34 N. Y. (7 Tiff.) 555, 574. Hence, after a trial by the court, a motion for a new trial on the ground that the decision was against evidence, or the weight of evidence, or that the judge erred in any of his rulings, would not be entertained by the court. See Watson v. Scriven, 7 How. 9. An order absolute for a new trial might be made by the gen- eral or special term, on its being made to appear that the judge's decision was unreasonably delayed, or an order might be made granting a new trial, unless the judge should file his decision within a specified time. Code, § 267. So a new trial might be granted on motion, upon the ground of irregularities, newly-dis- covered evidence, surprise or misconduct of the judge, in an action tried without a jury. So of an action tried by a referee. Lorlon v. Lewis, 9 How. 1 ; Moosa v. Saugerties & Woodstock Turnpike Co., 12 id. 297. See Leavy v. Roberts, 8 Abb. 310; S. C, 2 Hilt. 285 ; S. C. affirmed, 27 How. 599, note. But in no case was a new trial granted on the merits where the trial was by the court or by a referee. The party seeking a review of the de r cision of the court, or of a referee, was confined to his remedy by appeal from the judgment entered on the decision. In no case could the party review a mere interlocutory decision, made in the cause during the course of the trial, by the court, as the remedy by appeal was given only where a final judgment had been entered ; and so far as the above rules apply to a review of the decision of a cause tried by a referee, they remain unchanged ; but, by an amendment of section 268 of the Code, in 1867, it is provided that, where the decision of the court on a trial of an issue of fact, does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being \ filed, except thereto, and make a case or exceptions, as in case of an appeal. The effect of this amendment is substantially to allow an appeal, before final judgment, directly to the general term, from an interlocutory decision or judgment directing an accounting or farther proceedings before final judgment. Bolles v. Luff, 55 Barb. 580. This amendment applies only to interlocutory decisions or judgments made subsequent to April 25, 1867. lb. It will be observed, also, that the right to move for a new trial, where the NEW TKIAL. 423 On minutes of the court. trial is by the court, is given only where the decision of the judge is merely interlocutory and does not authorize final judgment ; and that in all other cases the former rules applying to new trials, where the trial is by the court without a jury, remain unchanged. As the mode of applying for a new trial, under the provisions of section 268, is substantially the same as under the provisions of section 265, a separate discussion of the respective applica- tions will be unnecessary. The distinction to be observed in making the two applications relates to the time and place of moving, rather than to the mode of application. d. On minutes of the court. By the provisions of section 264, "the judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages ;" and if, for either of these reasons, he is satisfied there was error on the trial, it is his duty to grant the motion. Spatz v. Lyons, 55 Barb. 476. It has been held that this motion will not be entertained if based on any other grounds than those specifically enumerated ; as, for example, that the verdict was contrary to the instructions of the court. Tinson v. Welch, 7 Hob. 392 ; or that the damages given by the jury were inadequate. Moore v. Wood, 19 How. 405. A motion for a new trial, upon the judge's minutes, has, how- ever, been granted on the latter ground. McDonald v. Walter, 40 1ST. Y. (1 Hand) 551. And so a new trial was granted where the motion was made upon the ground that the verdict was against all the evidence. Allgro v. Duncan, 24 How. 210 ; S. C. affirmed, 39 N. Y. (12 Tiff.) 313 ; 7 Trans. App. 106. The motion can be made only at the same circuit or term at which the trial is had (Code, § 264), and before the judge who tried the cause, or, if before another judge, it should be made upon a case actually settled. Nesmith v. The Clinton Fire In- surance Go., 8 Abb. 141 ; Morange v. Morris, 20 How. 257 ; S. C, 32 Barb. 650 ; 12 Abb. 164. Application for a new trial in this way is not of frequent oc- currence, and is more peculiarly appropriate in cases of mani- fest error or irregularity . If a lengthened statement or argument be required to make apparent the error or irregularity, a motion on a case in the regular form will be the proper course to be pur- sued. 2 Whit. Pr. 433. 424 NEW TRIAL. On case or exceptions — How made — Case without exceptions. e. On case or exceptions. Whenever it is intended to move for a new trial (except for irregularity, surprise, or upon the minutes of the judge), or to review, by appeal or otherwise, a trial by a jury, by the court, or by referees, a case or exceptions, or case containing exceptions, as may be proper and the moving party may elect, must be prepared, and a copy of the same served by such party. Sup. Ct., Rule 41. When the verdict of the jury, or the decision of the judge or referee, is impeached for error generally, both as to the facts and the law, the usual procedure is that of a case containing excep- tions. If the verdict of a jury is impeached for error on their part only, a case without exceptions will be sufficient ; but, if the impeachment is for error of law, it will be necessary to prepare exceptions in the nature of the former bill of exceptions. See Hunt v. Bloomer, 12 How. 567; S. C, 13 K Y. (3 Kern.) 341 ; Smith v. Grant, 15 K. Y. (1 Smith) 590 ; Mies v. Price, 23 How. 473. f. How made. If a review is sought on a case and exceptions, the case should contain an accurate statement of all that took place upon the trial, which can in any way have a bearing upon the questions sought to be reviewed. This will include so much of the evidence given on the trial as has a direct or indirect refer- ence to or bearing upon such questions, the exceptions taken throughout the trial, the charge of the judge, and the verdict of the jury. If the charge of the judge should be omitted or but partially stated, the presumption will lie that it was correct, either wholly or as to the portions omitted. Marine Bank of City of New York v. Clements, 6 Bosw. 166 ; S. C. affirmed, 31 N. Y. (4 Tiff.) 33 ; 28 How. 581, n. A case without exceptions is prepared, in all respects, as a case with exceptions, except that in the former, statements relative to exceptions taken on the trial are omitted. Case without exceptions. {Title of cause.) 1 The issues in this action came on for trial before the Hon. 2 A. B., one of the justices of this court, and a jury, at a 3 circuit court held at , in and for the county of , on 4 the day of , 18 , when the following (or, the fol- 5 lowing among other) proceedings took place : NEW TRIAL. 425 Case containing exceptions upon a trial by jury. 6 The plaintiff, by his counsel, opened the case ; and then, 7 to maintain the issues upon his part, he called as a witness 8 CD., who testified as follows . {Here give direct examina- 9 tion in full) 10 On cross-examination, he testified : {Give cross-examina- 11 tion in full.) 12 The plaintiff then called as a witness E. ¥., who testified : 13 {Give the testimony, as indicated above.) 14 The plaintiff then read in evidence the deposition of G. H., 15 taken conditionally before Hon. J. K., justice, at the city of 16 , on the day of , 18 , which was as follows : {In- 17 serf the deposition.) The plaintiff then rested. 18 The defendant, by his counsel, then opened his case to the 19 jury. 20 To maintain the issues upon his part, the defendant then 21 called as a witness L. M., who testified : {Give the testimony 22 of defendant's witnesses as indicated above.) 23 The defendant then read in evidence the following writing, 24 marked exhibit A : {Insert the exhibit) 25 The cause was then summed up by the respective counsel 26 and submitted to the jury under the charge of the court. 27 The jury found a verdict. . {State the verdict) Case containing exceptions upon a trial by jury. {Title of cause) 1 The issues in said action came on for trial before the Hon. 2 A B one of the justices of this court, at a circuit court (or, 3 special term of this court), on the day of ., 18 . 4 A jury was called and sworn, and the plamtitt, by nis 5 counsel, opened the case. 6 CD. was then called as a witness on the part of the plam- 7 tiff, and testified that {here state the testimony of th e-wri ness) 8 On being cross-examined, the witness testified that {state 10 W7 Thl defendant's counsel here moved fora nonsuit, on the 11 ground that {state the grounds), which motion was denied by 12 the court, and defendant's counsel excepted- 1 q The defendant then called as a witness E. h ., ana onerea to 14 provlS^ «fc*), to which Pl-^ t ^^tctfo d n 15 which objection was sustained by the court, to which decision 1? af SfSS^TftS 3Sia in evidence {state what docu^ iq wS court to which defendant's counsel excepted 20 %he Se theiTcharged the jury that {state what), to which 21 the defendant's counsel excepted. 22 The jury found a verdict for the plaintiff for 426 NEW TRIAL. Exceptions — Case containing exceptions, on a trial by the court or a referee, etc. Exceptions. {Title of cause.) 1 The issues in said action came on for trial before the Hon. 2 A. B., one of the justices of this court, at a circuit court {or 3 special term of this court), on the day of , 18 . 4 A jury having been called and sworn, the plaintiff, by his 5 counsel, opened the case. 6 The plaintiff, then, to maintain the issues upon his part, 7 offered in evidence, as an ancient deed, the following instru- 8 ment {insert the instrument). 9 The court held that the said instrument was not admissible 10 as an ancient deed, and the plaintiff excepted. 11 The plaintiff thereupon called, as a witness, C. D., who tes- 12 tified that he was a brother of the subscribing witness to said 13 deed ; and that said witness had left this State on a voyage to 14 Europe twenty-five years ago, and that he had not since been 15 heard from, nor had any account of the vessel in which he 16 had sailed been received. On cross-examination he testified 17 that he had not examined the shipping lists or "Marine 18 Gazette " at the time of the supposed loss of the vessel. The 19 defendant objected that the failure to call the subscribing wit- 20 ness was not excused ; the court overruled the objection, and 21 the defendant excepted. The witness then proved the gen- 22 uineness of the grantor's signature and that of the subscribing 23 witness ; and thereupon the court allowed the deed to be read 24 in evidence, and defendant excepted. 25 The plaintiff asked the same witness, " What, if you know, 26 was the consideration of the said deed other than what is 27 therein expressed?" The defendant objected that this evi- 28 dence was not admissible to vary the deed ; the court sus- 29 tained the objection, and plaintiff excepted. 30 The defendant offered to show that the said deed was made 31 for the purpose of defrauding the grantor' s creditors ; he did 32 not claim that the defendant, or any one through whom he 33 claimed, was a creditor of the said grantor. 34 The offer was allowed, and the plaintiff excepted. The 35 court directed the jury to find a verdict for the defendant, to 36 which direction the plaintiff excepted. Case containing exceptions, on a trial oy the court or a referee. {Title of cause.) This action came on for trial before the court at a special term {or circuit court), held in and for the county of , at the court-house in {or before C. D., the referee appointed by this court to hear and determine the same, at his office at the city of ), on the day of , 18 . The plaintiff, by his counsel, having opened his case, read in evidence the note mentioned in the pleadings, which was marked NEW TRIAL. 427 Finding of fact — Indorsement. "Exhibit A," and is as follows: {Insert the exhibit), and then called as a witness E. F., who testified {state what). The plaintiff then rested. The defendant then called as a witness G-. H., who testified, "I am the maker of the note ' Exhibit A.' On the day the same matured I handed to plaintiff a new note." The defendant then called on plaintiff to produce this note, notice to produce it having been given. The plaintiff declined to produce it. Q. State the contents of this new note % [This question was objected to by the plaintiff as immaterial and irrelevant. The objection was overruled, and the plaintiff excepted.] A. The new note was made by me to the order of the plaintiff, was dated on the day of the maturity of the previous note, and was payable ten days after date for dollars. The witness further testified : The plaintiff agreed to withdraw the previous note from the bank, and wait for the money until the second note came due. Being cross-examined he testified : {state what). The court {or referee) made and filed the following findings of fact and conclusions of law : Finding of fact. {Here insert what facts were found.) Conclusions of law. {State briefly the conclusions of law.) Indorsement. {Title of cause.) Take notice, that the within is a copy of the case {or excep- tions, or case with exceptions) proposed on behalf of the plain- tiff (or defendant) herein. (Date.) {Signature.) (Address.) The form of statement in a case seeking the review of a trial by the court or by a referee, where the decision is sought to be impeached relative to a question of fact, should be substantially the same as on a trial by jury, averring generally what passed at the trial, giving the evidence relating to the proposed review, and noticing such exceptions as were taken on the trial. See Bunt v. Bloomer, 12 How. 567; S. C, 13 N. Y. (3 Kern.) 341 ; Roqers v. Beard, 20 How. 282. Where the statement contained in a referee's report or a 428 NEW TRIAL. Indorsement on papers. judge's decision, of the facts found by him, differs from the specification inserted by him in the case on its settlement, the latter will be deemed to contain a true statement of the facts as actually found {Hartman v. Proudfit, 6 Bosw. 191), and the former statement will not be resorted to for the purpose of giv- ing a cdnstruction to the latter, which could not be given to it according to the natural construction of such language. lb. Under the former practice, a bill of exceptions was a history of the trial sufficiently full to present the points of law excepted to, with the evidence on which the points raised arose, certified by the signature and seal of the judge. ZabrisTcie v. Smith, 11 K. Y. (1 Kern.) 480. And, under the Code, the same rule should be observed when the review is sought upon exceptions only. See Smith v. Grant, 15 1ST. Y. (1 Smith) 590. They need not, however, be signed nor sealed by any judge. Code, § 264. Nor is it necessary to make a formal bill of exceptions, as under the former practice. ZabrisTcie v. Smith, 11 N. Y. (1 Kern.) 480. They must contain only so much of the evidence as may be necessary to present the questions of law upon which the same were taken on the trial ; and it is the duty of the justice, upon settlement, to strike out all the evidence and other matters which shall have not been necessarily inserted. Rule 43, Sup. Ct. They must, however, show the nature of the evidence claimed t6 be wrongfully excluded, with sufficient detail to enable the court to judge as to its materiality ; and should also show clearly the conclusions of fact at which the court below arrived, and its ruling thereon. Mead v. Northwestern Ins. Co., 7 N. Y. (3 Seld.) 530. The facts out of which the questions of law arise should be plainly and concisely stated in a connected form, so as to pre- sent them to the court at a glance. Price v. Powell, 3 N . Y. (3 Comst.) 322. See, also, Maher v. Carman, 38 N. Y. (11 Tiff.) 25 ; S. C, 5 Trans. App. 25. And questions withdrawn, answers excluded without objection, and testimony not necessary to raise the questions on the exceptions should all be excluded. Hoff- man v. Mtna Fire Ins. Co., 1 Rob. 501, 524 ; S. C, 19 Abb. 325 : 32 TS. Y. (5 Tiff.) 405. For the purposes of an appeal from a judgment entered on the decision of a judge, or a referee, the Code provides that either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judg- NEW TRIAL. 429 Indorsement on papers. ment, m the same manner and with the same effect as upon a trial by jury. Code, §§ 268, 272. As has been previously ex- plained, the exceptions which are allowed to be thus taken are such as relate to the conclusions of law which are embodied in the de- cision of the judge or referee, and to which no earlier opportunity of excepting has been or could be afforded. These exceptions correspond to the exceptions which, on a jury trial, would be taken orally to the judge's charge ; and have no relation to the exceptions to the rulings made on the trial on questions of evi- dence and the like, which must be taken when the rulings are made. See Brewer v. Isish, 12 How. 481 ; Tremain v. Rider, 13 id. 148 ; Hunt v. Bloomer, 12 id. 567 ; S. C, 13 1ST. Y. (3 Kern.) 341. The exceptions which may be taken to the decision of a ref- eree, after judgment, cannot in any case be used on a motion for a new trial, as a review of such decision on the merits can only be obtained by an appeal. Neither can they be used on a mo- tion for a new trial, where the trial has been by the court with- out a jury, unless the decision of the judge is merely inter- locutory, and directs further proceedings before a referee or otherwise, as the only mode of reviewing on the merits the final decision of a judge on the trial of an issue of fact is by an appeal. But when the decision of the judge does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice that the decision has been filed, except thereto, and make a case or ex- ceptions, as provided in case of an appeal from a final judgment. See Code, § 268. The exceptions to the decision in such cases will be made and served in the same manner as an exception to a referee's decision after judgment entered, and will be similarly incorporated into a case with the exceptions, if any, taken during the trial, except that the exceptions must be taken within ten days of the notice of filing the decision, instead of the notice of the filing of the judgment Notice of exceptions. {Title of cause.) I Take notice, that the plaintiff excepts to the first of the conclusions of law found herein by Mr. Justice 430 NEW TRIAL. Notice of exceptions — Amendmenta. II. That he also excepts to the second of said conclusions of law. III. That he also excepts to the third of said conclusions of law, in so far as it is thereby decided that {pate.) {Signature.) {Address.) g. Amendments. The party served with a case or exceptions may, within ten days thereafter, propose amendments thereto by serving a copy thereof on the moving party. Sup. Ct., Rule 41. If unable to do so within this time, he should obtain an ex- tension either by stipulation or by application to the court. The proposed amendments should be written, on the margin of a copy of the case itself, or on a separate paper, with a 'designa- tion of the page and line of the original case proposed to be altered, and each alteration proposed should be specially pointed out. Milward v. Hallett, 1 Cai. 344 ; Stuart v. Binsse, 3 Bosw. 657; S. C, 4 id. 616. ' Although, as a general rule, it is not allowable for a party to prepare and serve a substituted case or exceptions by way of amendments, yet the court may permit it in a very extreme case. lb. See Eagle v. Alner, 1 Johns. Cas. 332. Thus, if a case, as proposed, be so imperfect by reason of omissions and inaccuracies, that the necessary amendments require the making of a substi- tute, or the proposal of amendments to each line and passage thereof, with such multiplicity of detail that the labor of settling them would be far greater than the examination and approval of a substitute, the court will permit the proposal of such substi- tuted case. Stuart v. Binsse, 3 Bosw. 657; S. C, 4 id. 616. Amendments proposed to case, etc. {Title of cause.) Take notice, that the (plaintiff) proposes the following amend- ments to the case {or exceptions, or case containing exceptions) proposed on behalf of the (defendant) : First amendment : On page 3, line 6, strike out the words {State what.) Second amendment : On page 4, line 24, insert at the end of the paragraph the fol- lowing : {Slate what.) Third amendment: On page 5, strike out the 10th, 11th, 12th and 13th lines, and substitute the following : {State what.) NEW TRIAL. 431 Amendments — Settlement of case. Fourth amendment: On 16th page, line 28, after the word "Albany" insert (State what.) (Pate-) (Signature.) (Address.) x y ' h. Settlement of case. On receipt of the proposed amendments, the moving party may, within four days thereafter, serve the opposite party with a notice, that the case or exceptions, with the proposed amendments, will be submitted at a time and place, to be specified in the notice to the justice or referee before whom the cause was tried for settlement. The justice or referee shall thereupon correct and settle the case according to the facts, and shall, at that time, find on such other questions of fact as may be required by either party, and be material to the issue. Sup. Ct, Rule 41. See Van SlyTce v. Hyatt, 46 N. Y. (1 Sick.) 259 ; Lefler v. Field, 47 IS. Y. (2 Sick.) 407 ; People v. Church, 2 Lans. 459 ; S. C, 57 Barb. 204. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than twenty days after service of such notice. Sap. Ct., Rule 41. The lines of the case must be so numbered that each copy shall Correspond. lb. If the one party should omit to propose amendments, and the other to notify an appearance before the justice or referee, they will be respectively deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amend- ments as proposed. Sup. Ct., Rule 42. Whenever amendments are proposed to a case or exceptions, the party proposing such case or exceptions shall, before sub- mitting the same to the judge or justice for settlement, mark upon the several amendments his proposed allowance or dis- allowance thereof. Sup. Ct., Rule 43. In settling the case, the judge will, of course, exercise his own discretion as to the version to be preferred, and may, if he chooses, substitute that appearing upon his own minutes. Thus, he has a right to correct his charge as presented by a case, even though the parties may have agreed upon it (Boot v. King, 6 Cow. 569), and may even substitute a charge, prepared from his own minutes, for other versions of it suggested by the parties. Toplitz v. Raymond, 10 Abb. 60. He may also insert in a case 432 NEW TEIAL. Notice of settlement of case, etc. — Ee-settlement. such material facts as he deems necessary to render his charge intelligible. Walsworth v. Wood, 7 Wend. 483. The settlement of a case is a judicial, and not a ministerial, act ; and where, therefore, on appeal from the determination of three referees, the case was settled by two of the referees only, in the absence of the third, and without notice to him, the proceeding was held to be irregular, and the case sent back for a re-settlement. Fielden v. LaTiens, 14 Abb. 48. See Townsend v. Glen's Falls Ins. Co., 10 Abb. TS. S. 277. Where the judge, before whom the cause was tried, had died after the preparation, but before the settlement of a bill of excep- tions taken to his decisions, the moving party was allowed by the court to make a fresh case containing those exceptions, the notice for settlement, as on an original case, to be before any jus- tice of the court. Morse v. Evans, 6 How. 445. The judge or referee may be compelled by mandamus to settle a case or exceptions, but before the writ will be issued for such a purpose, it must be made to appear that, when so settled, it will be according to the facts. People v. Baker, 14 Abb. 19 ; S. C, 35 Barb. 105 ; Sikes v. Hansom, 6 Johns. 279 ; Delavan v. Boardman, 5 Wend. 132 ; People v. Washington C. P., 1 Caines, 511. Notice of settlement of case, etc. (Title of cause.) Take notice, that the proposed case (or exceptions, or case con- taining exceptions) in this action, together with the proposed amendments, will be presented for settlement to the Hon. T. M., the judge (or referee) before whom this cause was tried, at chambers (or at his office at ), on the day of ,18 , at o' clock. (Date.) (Signature) (Address.) Resettlement. Either party, if dissatisfied with the judge's settlement of the case or exceptions, may move the court for a re-settlement on affidavits showing what took place, and the errors committed on the settlement ; and a motion for this pur- pose may be made notwithstanding the pendency of an appeal to the higher tribunal ; and it will not be necessary first to remit the record for that purpose. Witoeck v. Waine, 8 How. 433. A motion for re-settlement is the proper mode of proceeding in the first instance (Delavan v. Boardman, 5 Wend. 132) ; but when NEW TRIAL. 433 Piling of case, when settled — Motion to be made. necessary, a mandamus will lie to compel the correct settlement of a case. People v. Baker, 35 Barb. 105 ; S. C, 14 Abb. 19. i. Filing of case, when settled. By the forty-fourth rule of the supreme court, it is provided that " when a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or it shall be deemed aban- doned'unless the time is extended by a justice. And, on filing affidavit that such case or exceptions has not been filed, and showing the time of settlement thereof, and that more than ten days had elapsed from the time of such settlement, or from the expiration of the time to which it was extended, an order, of course, may be entered declaring the same abandoned, and the party may proceed as if no case or exceptions had been made." Under this rule, the moving party is required to file with the clerk of the court the original paper, that is, the case and amend- ments as they came from the judge or referee, with the correc- tions or allowances as made by him, and not a mere copy of the case. Parker v. Link, 26 How. 375. Until the time for filing, or its extension, expires, the case can- not be noticed for argument. Extending the time to file is equivalent to extending the time to print the case when made (Donahue v. Hicks, 21 How. 438) ; and it seems doubtful whether the appellate court can affirm a judgment, where a case has been made, before it has been either filed or served. Warren v. Eddy, 13 Abb. 28 ; S. C, 32 Barb. 664. j. Motion to be made. A motion for a new trial upon the judge' s minutes can be made only at the same term or circuit at which the cause is tried. Code, § 264. So, where the trial was by jury, the motion, if made on a case or exceptions, must, in the first instance, be heard and decided at the circuit or special term, unless the motion, being made on exceptions alone, is directed by the judge trying the cause to be heard in the first instance at the general term. Code, § 265. If there are questions of fact to be examined, the judge at the circuit cannot direct a case to be reserved, and heard at the general term in .the first instance. Gronk v. Canfleld, 31 Barb. 171 ; McBride v. The Farmers' Bank, 26 IS". Y. (12 Smith) 450 ; Hoxie v. Greene, 37 How. 97 ; Dickerson v. Wason, 48 Barb. 412 ; Hotchkins v. Hodge, 38 id. 117 ; Mason v:,,BresMn, 9 Abb. N. S. 427. Yol. Ill — 55 434 NEW TEIAL. Order to hear exceptions at general term. If the issue was tried by the court without a jury, and the decision does not authorize a final judgment, but directs further proceedings before a referee or otherwise, the motion for a new trial on a case or exceptions must, in the first instance, be made at general term. Code, § 268. An exception to the granting of a motion for a nonsuit or dismissal of the complaint stands upon the same footing as an exception taken by the plaintiff to the judge' s rulings in the ad- mission or rejection of evidence, and may be directed to be heard at general term in the first instance. Mason v. Breslin, 40 How. 436 ; S. C, 9 Abb. H". S. 427 ; 2 Sweeny, 391 ; Lake v. Artisans' Bank, 3 Abb. N. S. 209 ; S. C, 1 Trans. App. 71 ; 3 Keyes, 276 ; reversing S. C, 17 Abb. 232 ; Huntingdon v. Claflin, 38 N. Y. (11 Tiff.) 182 ; S. C, 6 Trans. App. 168; 10 Bosw. 262. Where there are exceptions, and the new trial is sought on questions of law only, unless there is an order that the excep- tions be heard in the first instance at general term, the motion must be heard at special term. Potter v. Chadsey, 16 Abb. 146 ; Watson v. Scriven, 7 How. 9 ; Taylor v. Harlow, 11 id. 285 ; Morange v. Morris, 12 Abb. 164. And even where exceptions are ordered to be heard in the first instance at general term, but, instead of moving at general term, a motion for a new trial on the exceptions is made and decided at a special term, from which decision an appeal is taken to the general term, the latter court will treat the directions to have the exceptions heard at general term in the first instanoe, as waived by the parties, and the decis- ion made at special term as the decision of the judge who tried the cause, whether it was so in fact or not. Ely v. McNigM, 30 How. 97. Order to Tiear exceptions at general term. {Title of cause.) I hereby direct that the exceptions taken at the trial of this cause, on the part of the , when the same shall be duly settled and filed, be heard in the first instance at the general term, and not at a special term of this court. And I do hereby further direct that the entry of judgment in this cause be sus- pended in the mean time, and until after the hearing of such •exceptions and the decision of the general term thereon. {Bate.) {Signature of judge.) Motions for new trials, y not founded on a case or exceptions, ■as, for example, on the ground of newly-discovered evidence, NEW TRIAL. 435 Motions for, -when to be made. surprise, or the like, must in the first instance be made at special term. If denied, an appeal from the order there made may be taken to the general term, and be heard at the same time as the appeal from the judgment. Taylor v. Harlow, 11 How. 285 ; Clarice v. Ward, 4 Duer, 206 ; Morrison v. The New York & New Haven R. R. Co., 32 Barb. 568. ^ A verdict, subject to the opinion of the court, comes up for judgment at the general term in the first instance. Code, § 265. k. When to be made. In conformity with the former practice, it was at one time regarded as a settled rule, under the Code, that a motion for a new trial must be made before the entry of final judgment {Merchants' Bank v. Scott, 59 Barb. 641 ; Jackson v. Fassitt, 12 Abb. 281 ; S. C, 33 Barb. 645 ; 21 How. 279 ; revers- ing S. C, 9 Abb. 137; Ourney v. Smifhson, 7 Bosw. 396 ; An- derson v. Dickie, 17 Abb. 83 ; S. C., 26 How. 105 ; 1 Rob. 238, 700 ; Barnes v. Roberts, 5 Bosw. 73) ; unless judgment was allowed to be entered by way of security merely, in which case it was no obstacle to a motion for a new trial upon the evidence, because the judgment, being only conditional and for a special purpose, the application for a new trial was still treated as an application before judgment. lb.; Benedict v. Gaffe, 3 Duer, 669 ; Morange v. Morris, 32 Barb. 650 ; S. C, 12 Abb. 164 ; 20 How. 257. And so the court would sometimes permit the motion to be made, after the absolute entry of judgment, where sufficient excuse was shown for not making the motidn before judgment {Stilwell v. Staples, 4 Rob. 639. See Magnus v. Trischet, 2 Abb. N. S. 175) ; or, if necessary, convert an absolute judgment into one to stand merely as security. Stilwell v. Staples, supra. The practice has at length been settled by the court of appeals, and the rule now is that a motion for a new trial upon the ground that the verdict is against the weight of evidence, or of surprise, of newly-discovered evidence, of misconduct of the jury, or other ground, can be made at special term, notwithstanding the previous entry of a judgment on the verdict. Tracey v. Alt- myer, 46 N. Y. (1 Sick.) 598. See, also, Blydenburg v. Johnson, 9 Abb. N. S. 459 ; Folger v. Fitzhugh, 41 N". Y. (2 Hand) 228 ; Tucker v. White, 27 How. 97 ; S. C, 28 id. 78. The motion for a new trial must be made promptly, and espe- cially is this the case when the motion is, based upon the ground of surprise, or newly-discovered evidence ; and a new trial will not be granted on these grounds where a party has been guilty 436 NEW TRIAL. How to be made — Stay of proceedings. of laches in making his motion. Snowhill v. Knapp, 7 N". Y. Leg. Obs. 15 ; Rapelye v. Prince, 4 Hill, 119 ; Peck v. Hiler, 30 Barb. 655; Sheldon v. Stryker, 42 id. 284; S. C., 27 How. 387. I. How to be made. When brought on, the application for a new trial will be an enumerated motion (see Rule 47, Sup. Ct. ; Ellsworth v. Gooding, 8 How. 1 ; Van Schaick v. Winne, 8 id. 5), and, as such, it must be noticed and placed upon the calendar in the usual manner. to. Stay of proceedings. Application should, in all cases, be made for a stay of proceedings, until the case can be settled and the motion heard ; and, as a general rule, this will be granted, unless the proceeding be palpably frivolous or dilatory. A case or bill of exceptions is not, of itself, a stay of proceed- ings, and an application for the latter must be made in due form, or the adverse party may go on, and enter judgment on his ver- dict. Oakley v. Aspinwall, 1 Sandf. 694. The usual practice is to make the application at the trial to the judge who tried the cause ; and this course is preferable, inasmuch as the order when so made is not affected by the limitation of twenty days, imposed by section 401, subdivision 6, of the Code. On the other hand, the judge who tried the cause may grant the stay for any period he may deem reasonable. Mitchell v. Hall, 7 How. 490 ; Steam Navigation Go. v. Weed, 8 id. 49 ; Har- ris v. Clark, 10 id. 415. Where a general stay of proceedings cannot be obtained from the judge who tried the cause, and more than twenty days is required, application may be made to any other judge, upon notice, when any period of time may be asked for that may be necessary. A stay, when obtained, suspends all regular proceedings, until it has expired or is vacated, including the giving of notice of the entry of judgment, with a view to limit the time for appealing. Bagley v. Smith, 2 Sandf. 651. It will not, however, prevent an application being made for a provisional remedy, unconnected with the ordinary progress of the cause. Thompson v. Erie Railway Go., 9 Abb. N. S. 233 ; Lapeous v. Hart, 9 How. 541. Order for time to prepare a case or exceptions, with stay. {Title of cause.) {At a special term, etc.) (On reading and filing the affidavit of A. B., and) on motion of C. D., plaintiff's attorney: NEW TRIAL. 437 Affidavit to move for new trial on ground of the misconduct of the jury. Oedeeed : That the defendant have days from the date of this order to make and serve a case or exceptions, and serve a notice of motion for a new trial herein ; and that, in the mean time, and until the settlement of such case or exceptions, if served, and until the hearing and determination of such motion, if made, the entry of judgment herein be stayed. n. Affidavits. A motion for a new trial on affidavits alone will be entertained only when such motion is based on the ground of irregularity or surprise (Sup. Ct., Rule, 41), and the irregularity must be of such a nature as cannot be objected to at the trial ; all questions that can be raised there being available only on a case or exceptions. The affidavits of jurors cannot be received as evidence to show a mistake in making up their verdict. Ex parte Caykendoll, 6 Cow. 53 ; Brownell v. McEwen, 5 Denio, 367 ; Jackson v. Wil- liamson, 2 T. R. 281), or that their verdict was given under a mis- apprehension as to its effect (People v. Columbia C. P., 1 Wend. 297) ; nor for the purpose of showing' their own misconduct, or that of their fellows, during the trial or consultation. Clum v. Smith, 5 Rill, 560; Green v. Bliss, 12 How. 428; Thomas v. Chapman, 45 Barb. 98 ; Dana v. Tucker, 4 Johns. 487 ; Vaise v. Delaval, 1 T. R. 11 ; Owen v. Warburton, 4 Bos. & Pul. 326. Affidavit to move for new trial on ground of the misconduct of the jury. (Title of cause.) ( Venue.) A. B., being dulv sworn, says : The jury impaneled in the above entitled cause, in finding their verdict in the same, resorted to the determination of clause, to wit (state in what manner). (Jurat.) (Signature.) Affidavit to move for new trial on ground of newly-discovered evidence. (Title of cause.) ' ( Venue.) C. D., being duly sworn, says : I. That he is the (defendant) in this action. II. That this action was tried on the day of , 18 , at a (circuit court), held in and for the county of , at , in said county. III. That said trial resulted in a verdict for the (plainnff) for dollars. 438 JNEW TRIAL. Affidavit to move for new trial on ground of surprise. ' IV. That since the said trial, and on the day of , 18 , deponent has discovered for the first time that he could have proved by one E. F., who resides at , the following facts {state what). {Jurat.) {Signature.) {Here follows, as corroborating evidence, the affidavit of the witness relied on to prove the facts alleged on the new trial.) Affidavit to move for new trial on ground of surprise. {Title.) ' ( Venue.) Gr. H., being duly sworn, says : I. That he is the {defendant) in this action. II. That, previous to the trial of said cause, to wit, on the day of , 18 , at , one J. K. informed the deponent that he, the said J. K., knew and would testify to {state what), and, relying on said assurance, deponent took no steps to pro- cure the testimony to said fact, and summoned the said J. K. to testify to the same ; but the said J. K., when called to the stand at the trial of said cause, by collusion with the {plaintiff) therein {or state any fact or occurrence for which (defendant) is not responsible) testified contrary to what he had previously stated he should do, and the verdict, which was against the de- fendant, was mainly attributable" to said testimony, and on a new trial {stafe material point) will be established by evidence, and a different verdict will result. III. Deponent is further able to prove the same fact by L. M., who resides at , and whose testimony he can procure at the new trial of this cause. {Jurat.) {Signature.) {Affidavit of witness relied on.) Such affidavits are, however, admissible as evidence to show the misconduct of a party, or of the officer having charge of them {Thomas v. Chapman, 45 Barb. 98 ; Reynolds v. Cham- plain Trans. Co., 9 How. 7 ; Wright v. The III. & Miss. Tel. Co., 20 Iowa, 195) ; or, that they were led into error in making up the verdict, by the misdirection of the judge in his charge {Sar- gent v. Denniston, 5 Cow. 106) ; or to show that the foreman, by mistake, delivered a wrong verdict {Cogan v. Ebden, 1 Burr. 383) ; or that the clerk entered the verdict differently from what they intended. Jackson v. Dickenson, 15 Johns. 309. And, generally, such affidavits may be received to show any matter occurring during the trial or in the jury room, which does not NEW TRIAL. 439 Notice of motion for a new trial — Practice on hearing. essentially inhere in the verdict itself. Wright v. The III. & Miss. Tel. Co., 20 Iowa, 195. It is always competent for a party to offer the affidavits of the jurors for the purpose of sustaining their verdict (Dana v. Tucker, 4 Johns. 487 ; Nesmith v. Clinton Fire Ins. Co., 8 Abb. 141) ; but this species of evidence has been generally regarded as very unreliable. Eastwood v. The People, 3 Park. 25. Affidavits of counsel and others, on information and belief, as to the misconduct of the jury, are not admissible as evidence to impeach the verdict. People v. Hartung, 17 How. 85 ; S. 0., 8 Abb. 132 ; 4 Park. 314 ; People v. Wilson, 8 Abb. 137 ; S. C. reversed, 4 Park. 619. o. Notice of motion. The motion -for a new trial must be brought before the court on the usual notice of eight days, as prescribed by section 402 of the Code. See Sup. Ct., Rule 46. Notice of motion for a new trial. {Title of cause.) Take notice, that on the case {or exceptions, or case containing exceptions), {or upon the affidavits, of which copies are herewith served upon you), and upon all the pleadings and proceedings herein, I shall move this court, at a special term thereof, to be held in and for the county of , at the city hall, in the city of , on the day of , 18 , at o'clock, for a new trial herein! {Bate.) {Signature.) {Address.) p. Opposing the motion. A motion of this kind is opposed in the usual manner and upon such facts as are sufficient to answer the moving papers. q. Practice on hearing. A motion for a new trial on the judge's minutes being usually made immediately after the close of the trial, no special papers need be prepared for the purpose, and a mere notice to the opposite party will be all that is neces- sary In case an arrangement cannot be effected with the oppo- site counsel, to bring on the motion by consent, the better course will be to procure an order to show cause, from the judge him- self, which may be in the following form : {Title of cause.) T Pt the plaintiff {or defendant) show cause before me, at the rirrnit court now in session in and for the (city and) county of at the court-house in {or at the city hall in said 440 NEW TRIAL. Notice of motion for a new trial on the judge's minutes. city), on the day of , 18 , why an application for a new- trial herein, on the judge's minutes, should not be entertained; and if said application is so entertained, then why such new trial should not be granted ; and in the mean time, and until de- termination of said motion, not exceeding twenty days, let all proceedings on the part of said be stayed. {Date.) ' J. P., Justice, etc. Notice of motion for a, new trial on the judge's minutes. {Title of cause.) Sie : Take notice, that a motion will be made before the circuit court now in session in and for the (city and) county of , at the court-house in {or at the city hall in said city), on the day of , 18 , for an order granting a new trial in the above entitled action, which motion will be made on the pleading in the action, and on the judge's {or stenographer's) minutes of the trial in said action. {Date.) Yours, etc., {Address) {Signature.) The motion, when made on a case or exceptions at special term, should' be noticed and placed on the calendar, in the same man- ner as a cause for trial. The case on file may be procured from the office of the clerk of the court, for the use of the judge, and he should also be furnished with a copy of the pleadings. The application, when brought on for hearing at general term, will be an enumerated motion (see Sup. Ct., Rule 47), and, as such, must be noticed and placed upon the calendar in the usual man- ner. The papers and points should be printed, as on an appeal. See Sup. Ct., Rule 52. The decision at special term must be entered as an order, and service of the same made on the opposite party in the usual manner. At general term, the decision, when made, will embrace the entry of judgment, and present the same features as one on appeal. On the hearing of the motion, the counsel for the party mov- ing opens the argument, the opposite counsel answers, and the counsel for the party moving has the reply. One counsel only will be heard on each side. Sup. Ct., Rule 58. See Old Practice, 1 Burr. Pr. 331. r. Granting or refusing new trial. The effect 'of granting the motion for a new trial is to remit the cause back to the stage of the original joinder of issue, and it must then be brought on a NEW TRIAL. 441 Granting or refusing new trial — Order granting motion for a new trial. second time for trial, in due course, and in regular form. On the second trial, the date of the issue will be that of the original joinder, and the cause will accordingly take a higher place on the calendar, and come on at an earlier period. If the party in whose favor the motion is granted neglects to proceed, the op- posite party may do so, and set down the cause in due order, in the usual manner. Gale v. Hoysradt, 3 How. 47. Where, however, a new trial is granted on application of the defendant, a copy of the order granting the same must be served on the plaintiff* s attorney, before the defendant can move for a dismissal of the complaint for not proceeding to trial. But the rule is otherwise where the new trial is granted on application of the plaintiff. Robb v. Jewell, 6 How. 276. Where a new trial has been granted in a case involving the examination of a long account, it is no objection to a motion for a reference, that the cause had once been tried by a jury. Brown v. Bradshaw, 1 Duer, 635 ; S. C, 8 How. 176. And upon awarding a new trial as a matter of right, the court has no power to direct that the evidence given on the previous trial, either wholly or in part, shall stand as evidence on the second trial. Bissell v. Hamlin, 13 Abb. 22 ; Bruce v. Davenport, 5 Abb. N. S. 185 ; S. C, 3 Trans. App. 82 ; 3 Keyes, 472. The only mode by which evidence given on the former trial may be made available in the second, is by consent or stipulation between the parties. As a general rule, costs of the application and of the former trial will be imposed upon the applicant on granting a new trial on a question of law, by way of favor, and not as a strict right. Hicks v. Waltermire, 7 How. 370 ; Kelley v. Upton, 12 id. 140 ; Kennedy v. The Harlem R. R. Co., 3 Duer, 659 ; Benedict v. Johnson, 2 Lans. 94 ; Coming v. Coming, 6 N. Y. (2 Seld.) 97 ; affirming S. C, 1 Code R. (N. S.) 351. So where a new trial is granted for the error of the jury in finding a verdict against the evidence, the party making applica- tion must pay costs. Overing v. Russell, 28 How. 151 -North v. Sargent, 20 id. 519 ; 33 Barb. 350; Same v Same, 14 Abb. 223 ; East River Bank v. Hoyt, 22 How. 478 ; Hamill v. Willett, 6 Bosw. 533. Order granting motion for a new trial. (T'tle of cause.) ( Ai a s P ecia t ierm > efc A Lotion for a new trial on the part of the (plaintiff) herein, having been made on the case (or exceptions, or case contam- Vol. Ill -56 442 NEW TRIAL. Order granting motion for a new trial — Proceedings after verdict, etc. ing exceptions), (and upon reading and filing the affidavits of ), and after hearing A. B., Esq., of counsel for the plaintiff, in support of said motion, and C. D., Esq., of counsel for the defendant, in opposition * : Obdebed : That the said motion for a new trial be, and the same hereby is granted {or, granted, with costs to abide the event, or on payment of costs, or on payment of all costs of the action after notice of trial, or on condition that the plaintiff stipulate, etc., or otherwise state (he terms on which the new trial is granted). Order granting motion, unless the opposite party will consent to reduce his verdict. {Same as above, to the * /) Obdebed : That the said motion for a new trial be, and the same hereby is granted, unless the plaintiff, within days, stipulate to reduce the verdict to dollars {or unless the defendant, within days, stipulate to waive the sum awarded to him by the verdict for his counter-claim therein), in which case said motion is denied (without costs). Order denying motion for a new trial. {Same as in last form but one, to the * :) Obdebed : That the said motion be, and the same hereby is denied (with costs). s. Vacating order. If the ground of an order denying a new trial has been removed, as where it was based upon an adjudica- tion which has since been reversed, the order should be vacated and a new trial ordered. Gilchrist v. Comfort, 26 How. 394 ; S. C. affirmed, 34 N. Y. (7 Tiff.) 235. " t. Proceedings after verdict on feigned issue. The object of a feigned issue is to satisfy the conscience of the court ; and if the trial has been fairly conducted, and the conclusion of the jury is the same as the court itself would have come to, upon the evidence in the cause, a new trial should not be ordered. In reviewing the trial of such an issue, the court is governed by the rules which prevail on motions for a new trial on a case. See Lansing v. Russell, 13 Barb. 510 ; ClarJc v. Brooks, 2 Abb. N. S. 385; S. C, 2 Daly, 159 ; Clayton v. Tarrington, 33 Barb. 144; Snell v. Loucks, 12 id. 385 ; Morris v. Morange, 38 N. Y. (11 Tiff.) 172 ; S. C, 4 Abb. N. S. 447, 451 ; 6 Trans. App. 1. Section 4. Proceedings, if new trial granted. a. In general. The proceedings, in case the motion for a new trial be granted, have been already partially noticed, ante, section NEW TRIAL. 443 Second or other new trial — Appeal from order. 3. It has been observed that the only difference between the second trial and the first will be the clearer views which the parties will have as to what will or will not be considered as ad- missible, either in point of evidence or of argument. If the decision on the motion was made in writing, it may be made use of- for this purpose, and tlie judge may probably require a copy for his information, which should be in readiness accordingly. 2 Whit. Pr. 451. A proper notice of trial must be served, and the usual jury process issued, and the cause must be entered for trial as in ordi- nary cases. Ante, 25. The jurors impaneled on the new trial must be fresh persons and not one of the former jurors, and it is, therefore, a ground of challenge on the second trial that one of the jurors was on the former trial. Argent v. Darrell, 2 Salk. 648. See Rex v. Mawbrey, 6 T. P. 619 ; 4 Chit. Gen. Pr. 93. b. Second, or other new trial. If, on the new trial, the jury find for the party against whom the former verdict was given, it is discretionary with the court to grant a third trial (Parker v. Ansell, 2 Wm. Bla. 963) ; and so a third trial may be granted after two concurring verdicts. Goodwin v. Gibbons, 4 Burr. 2108 ; Tindal v. Brown, 1 T. Pr 167. In either case, however, this discretion is seldom exercised by the court in granting a third trial. Fowler v. Mtna Fire Ins. Co., 7 Wend. 270 ; Baring v. New York & Erie R. R. Co., 13 Barb. 9. If the action of the jury on a second trial is indicative of bias and partiality, it will be regarded by the court as a proper case for interference, and, accordingly, a third trial will ordinarily be granted. Gilligan v. The New York & Harlem R. R. Co., 1 E. D. Smith, 453. But the courts will impose some limitation on the right of applying for a new trial, even where the circumstances are ex- ceedingly doubtful. Thus, where three successive verdicts had been rendered, on feigned issues, against a defendant in a suit for divorce on the ground of adultery, a fourth trial was denied by the court of appeals, although the evidence was purely cir- cumstantial, and not entirely conclusive. Ferguson v. Ferguson, 7 How. 217. c. Appeal from order. The decision of the judge upon the facts, in granting or refusing a new trial, is reviewable by appeal to the general term, and the only proper mode of making that review is by appeal from the order granting or refusing such new trial. The appeal from a judgment only authorizes a review of 444 NEW TRIAL. When new trial refused. the questions of fact, when the trial is by the court without a jury, or by referees. See Marquart v. La Farge, 5 Duer, 559 ; Ogden v. Coddington, 2E.D. Smith, 317 ; Brown v. Richard- son, 1 Bosw. 402 ; Benedict v. Caffe, 3 Duer, 669 ; Fry v. Ben- nett, 16 How. 385. In practice, the appeal from the order is, however, usually heard at the same time with the appeal from the judgment to the general term. See Morange v. JYorris, 20 How. 257. An appeal from an. order denying a motion for a new trial, made on the judge's minutes, maybe taken to the general term before or after judgment has been entered in the action. Lane v. Bailey, 30 How. 76 ; S. C, 45 Barb. 119 ; 1 Abb. N S. 407. See Magnus v. Trischet, 2 Abb. N. S. 175. . The court of appeals is confined to the correction of errors of law only, and has no power to review any questions of fact de- termined in the subordinate courts. And when a new trial has been granted in the court below after a trial by jury, the court of appeals must either affirm the order, if it can stand consistently with any view to be taken of the evidence given at the trial, or dismiss the appeal. Macy v. Wheeler, 18 Abb. 73 ; S. C, 30 N. Y. (3 Tiff.) 231 ; Dickson v. Broadway & Seventh Avenue R. R. Co., 47 N. Y. (2 Sick.) 507 ; Wright v. Hunter, 46 N. Y. (1 Sick.) 409 ; Bands v. GrooJce, 4d. 564 ; Rogers v. Long Island R. R. Co., 49 K Y. (4 Sick.) 655 ; Downing v. Kelly, 48 N. Y. (3 Sick.) 433. See Miller v. Schuyler, 20 N. Y. (6 Smith) 522. Section 5. When new trial refused. a. In general. A motion for a new trial, founded on the improper admission of immaterial or irrelevant testimony, will not be granted, where the introduction of such testimony could, in no possible way, have worked any prejudice to the party objecting. Spatz v. Lyons, 55 Barb. 476 ; Lamb v. Camden & Amboy R. R. and Trans. Co., 2 Daly, 454; Elock v. Buell, 56 Barb. 398; Mayor, etc., of New TorTc v. Second Avenue R. R. Co., 32 N. Y. (5 Tiff.) 261 . So the motion will be denied and a new trial refused where the reason given for the decision is wrong, but the decision itself is right. Holtsinger v. National Corn Exchange Bank, 37 How. 203 ; S. C, 6 Abb. H". S. 292 ; Munro v. Potter, 22 How. 49 ; S. C, 84 Barb. 358 ; Hanford v. Artcher, 4 Hill, 271 ; Deland v. Richardson, 4 Denio, 95. And a new trial will not be granted merely for the purpose of allowing a technical cor- rection (Cady v. Fairchild, 18 Johns. 129 ; Stephens v. Wider, 32 M". Y. [5 Tiff] 3.51 ; Van Vechten v. Griffiths, 1 Keyes, 104 ; NEW TRIAL. 445 Objections not taken. Devendorf v. Wert, 42 Barb. 227) ; or, for excessive damages where the parties will consent to deduct the excess (Murray v. Hudson River R. R. Co., 47 Barb. 196 ; Clapp v. Hudson River R. R. Co., 19 id. 461 ; Sears v. Conover, 33 How. 324 ; S. C, 3 Keyes, 113 ; affirming S. C, 34 Barb. 330. See Cassinv. Belany, 38 M". Y. [11 Tiff.] 178 ; S. C, 6 Abb. IS". S. 1 ; 6 Trans. App. 199 ; reversing S. C, 1 Daly, 224) ; nor for the purpose of im- peaching the character and credit of a witness. Beach v. TooJcer, 10 How. 297 ; MeaMm v. Anderson, 11 Barb. 215 ; Powell v. Jones, 42 id. 24. And a new trial -will not be granted for the admission of im- proper testimony where the other evidence is such that, if the jury had found for the party objecting, their verdict would have been set aside. Jaeger v. Kelly, 7 Rob. 586. o. Objections not taken. The objections raised at the trial of a cause are alone available on a motion for a new trial, where the trial was by jury. Staring v. Bowen, 6 Barb. 109 ; Smith v. Floyd, 18 id. 522 ; Waterville Manufacturing Co. v. Brown, 9 How. 27. And it is well settled that an objection not taken in the court below cannot be raised -for the first time on appeal, provided the objection, if taken below, could have been obvi- ated, lb. Thus, where, on the trial, the defendant makes no request to submit a certain question of fact to the jury, upon which there is some evidence ; or neglects to take objection to the insufficient proof of demand of personal property before suit brought, he cannot avail himself of such omissions on appeal to the general term. Shafer v. Guest, 6 Rob. 264 ; S. C, 35 How. 184. And where, in an action brought by persons suing as commissioners of highways to recover the costs of a re-assessment, there is some evidence given of their being such commissioners, and no ques- tion as to their being such was raised before the justice, either while the trial was progressing, or on a motion that was made for a nonsuit, and no such ground of a'ppeal to the county court was specified ; and the whole case shows that the plaintiffs were treated through the whole trial as commissioners of highways, it is too late, on appeal, to disturb the judgment of the county court on the ground that they, were not such commissioners. Gary v. Marston, 56 Barb. 27. So, where incompetent evidence offered by the plaintiff is received without objection, it .seems that the court will not, on the mere ground of its incompetency, 446 NEW TRIAL. Objections not taken — Harmless errors. set aside a verdict for the plaintiff, even though, such verdict was found entirely on that evidence. Monk v. Union Mutual Life Ins. Co., 6 Rob. 455. See Posebrooks v. Dinsmore, 5 Abb. N. S. 59 ; S. C, 36 How. 138 ; 1 Trans. App. 265 ; Shaw v. Smith, 5 Abb. N". S. 129 ; 1 Trans. App. 283 ; Walker v. Gilbert, 2 Daly, 80 ; Meyer v. Fiegel, 7 Rob. 122 ; S. C, 34 How. 434 ; Hazard v. Spears, 4 Keyes, 469 ; Champney v. Blanchard, 39 IS. Y. (12 Tiff.) Ill ; S. C, 6 Trans. App. 53 ; Wolfe v. Security Fire Ins. Co., id. 286 ; S. C, 39 N. Y. (12 Tiff.) 49 ; Draper v. Stomenel, 38 1ST. Y. (11 Tiff.) 219 ; Fountain v. Peitee, id. 184 ; S. C, 6 Trans. App. 241. See Keyes v. Devlin, 3 E. D. Smith, 518 ; Chester v. Dicker son, 52 Barb. 349 ; Coyle v. City of Brooklyn, 53 id. 41 ; S. 0. affirmed, 41 N. Y. (2 Hand) 619, n.; Ames v. Rathbun, 55 Barb. 194 ; S. C, 37 How. 289. If, however, the objection when taken below could not have been obviated, an omission to take it there does not prevent a party from subsequently raising it upon appeal. Thus, a de- fendant is not bound to raise the objection on the trial, that the statute under which the plaintiff sues is unconstitutional, for no act of the plaintiff could obviate such objection. Brookman v. Hamill, 54 Barb. 209 ; S. C. affirmed, 43 N. Y. (4 Hand) 554. As objections to the decision of a judge on the trial of issues of fact without a jury must necessarily be taken after trial, the Code provides that, for the purpose of moving for a new trial under the provisions of section 268, either party may except to the decision at any time within ten days from the notice of the filing thereof; and objections so taken may, as a matter of course, be heard for the first time on the motion at the general term. c. Harmless errors. A verdict will not be set aside and a new trial granted, even on a bill of exceptions, on account of an error, where it is manifest that no injustice has been done. Ledyard v. Jones, 7 1ST. Y. (3 Seld.) 550; Wells v. Cone, 55 Barb. 585; Page v. Ellsworth, 44 id. '636. And much less in such case will a new trial be granted if the motion is made upon a case. Val- lance v. King, 3 Barb. 548 ; Hunt v. Fish, 4 id. 324 ; Smith v. Kerr, 1 id. 155 ; Mansfield v. Wheeler, 23 Wend. 79 ; Benjamin v. Smith, 12 id. 404 ; Wells v. Cone, 55 Barb. 585. It hence fol- lows, that if, upon the undisputed facts of the case, the decision at the circuit is right, although the judge's reason for it was NEW TRIAL. 447 Trivial claims — Hard actions. ■wrong, a new trial will not be granted. Munro v. Potter. 22 How. 49; S. C, 34 Barb. 358. If, however, it be in any way doubtful whether the error com- plained of may or may not have had a prejudicial effect upon the verdict, a new trial should not be refused. Clark v. Cran- dall, 3 Barb. 612 ; Allen v. Way, 7 id. 585 ; S. C., 3 Code R. 243 ; Green v. Hudson River Railroad, 32 Barb. 25 ; S. C. affirmed, 30 How. 593, n. ; Chester v. Dicker son, 52 Barb. 349. See Lowery v. Steward, 3 Bosw. 505 ; Renaud v. Peck, 2 Hilt. 137 ; Schenec- tady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y. (1 Kern.) 102. d. Trivial claims. Where a verdict is given in favor of the defendant, and it is apparent from the whole case that the plain- tiff can in no event recover more than nominal damages, a new trial will not be ordered, although an error has been committed in the charge. Hopkins v. Orinnell, 28 Barb. 533 ; McConihe v. New York & Erie R. R. Co., 20 N. Y. (6 Smith) 495. And especially is this so in an action where a recovery by the plain- tiff would not change his liability for costs. lb. ; Devendorf v. Wert, 42 Barb. 227. See Hyatt v. Wood, 3 Johns. 239 ; Rundell v. Butler, 10 Wend. 119. So in no case will a new trial be granted where the cause of action is trifling and the suit is merely for costs and vexation. Fleming v. Gilbert, 3 Johns. 528 ; Hunt v. Burrel, 5 id. 137 ; Van Slyctc v. Hogeboom, 6 id. 270 ; Cady v. Fairchild, 18 id. 129 ; Stephens v. Wider, 32 N. Y. (5 Tiff.) 351. See Maybee v. Fisk, 42 Barb. 326 ; Seymour v. Deyo, 5 Cow. 289. And where a verdict has been erroneously given in favor of the plaintiff for nominal damages carrying costs, a new trial will not be ordered if the plaintiff will elect to discontinue without costs. Fleming v. Gilbert, 3 Johns. 528. e. Hard actions. In actions for penalties it is well settled, that a new trial will not be granted, on the ground that the ver- dict is against the weight of evidence, where such verdict is for the defendant; but there is no such rule or decision where the verdict is in favor of the plaintiff. Fast River Bank v. Hoyt, 22 How. 478. And it has been held that the court will grant a new trial in a penal action, even though the verdict be for the defendant, where they are satisfied that the verdict is in contra- vention of law, whether the error has arisen from the misdirec- tion of the judge, or from a misapprehension of the law by the 448 NEW TEIAL. Defense unconscionable — Relinquishing damages — Costs. jury-, or from a desire on their part to take the exposition of the law into their own hands. Attorney-General v. Rogers, 11 Mees. & Wels. 670 ; 2 D. N. S. 1037; 7 Jur. 704 ; 12 L. J. Exch. 395. So a new trial will be granted in such action, after a verdict for the defendant, if such verdict has proceeded upon the mistake of the judge. Lord Selsea v. Powell, 6 Taunt. 297 ; Wilson v. Rastall, 4 T. E. 753 ; Bex v. Mann, 4 Maule & Selw. 337 ; Cat- craft v. Gibbs, 5 Term K. 19. /. Defense unconscionable. As a general rule the court will not grant a new trial, after a verdict for the plaintiff, where the defense set up is unconscionable ( Wilkinson v. Payne, 4 T. E. 468 ; Smith v. Page, 644 ; Macrow v. Hull, 1 Burr. 11 ; Farewell v. Ohaffey, id. 54 ; Burton v. Thompson, 2 id. 664), and the ver- dict has been found according to the justice, conscience and equity of the case. Wilkinson v. Payne, supra. See Aylett v. Lowe, 2 Wm. Bla. 1221 ; Fdmondson v. Machell, 2 T. E. 4 ; Fletcher v. Webb, 11 Price, 381 ; Cox v. Kitchin, 1 Bos. & Pul. 338. g. Relinquishing damages. It is the well-settled practice of the court, on a motion for a new trial, to refuse to set aside the verdict, where the parties consent to deduct any amount deemed excessive. Clapp v. Hudson River R. R. Co., 19 Barb. 461 ; Sears v. Conover, 33 How. 324; S. C, 3 Keyes, 113; affirming S. C, 34 Barb. 330; Murray v. Hudson River R. R. Co., 47 id. 196. But, in an action for a malicious prosecution, the general term have no power to order the reduction of the verdict to a sum named by them as the alternative of a new trial. Cassin v, JDelany, 38 N. T. (11 Tiff.) 178 ; S. C, 6 Abb. N. S. 1 ; 6 Trans. App. 199 ; reversing S. C, 1 Daly, 224. Section 6. Costs. a. In general. The terms, as to costs on granting a new trial, have already been noticed in a previous section. Ante, p. 441, and see Costs, where the subject is fully discussed. It may be observed, generally, that, where a new trial is granted on the ground that the verdict is against evidence, it must be on payment of the costs of the former trial, by the party against whom the verdict was rendered. North v. Sergeant, 33 Barb. 350 ; S. C, 20 How. 519 ; Overing v. Russell, 28 id. 151 ; Fast River Bank v. Hoyt, 22 id. 478. And a motion for a new trial, on the ground of newly-discovered evidence, is so far an enum- erated motion as to entitle the successful party, upon its deter- NEW TRIAL. 449 Preparing case for court of appeals — Appeal, when advisable. mination, to costs, as on the argument of a case. Warner v. Western Trans. Co., 5 Rob. 490. As to costs on a motion for a new trial, on a case or exceptions at special term, see Jackett v. Judd, 18 How. 385 ; Malan v. Simpson, 12 Abb. 225 ; S. C, 20 How. 488. Section 7. Preparing case for court of appeals. a Appeal; when advisable. In allowing appeals to the court of appeals, from orders granting or refusing new trials, the Code provides that no appeal to the court of appeals, from an order granting a new trial on a case made or a bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent, on the part of the appellant, that, if the judgment be affirmed, judgment absolute be rendered against him ; and that, upon every appeal from an order granting a new trial on a case made or exceptions taken, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant. Code, § 11. The question, whether it is or is not advisable to appeal from an order granting a new trial, under the conditions imposed by the Code, is one of great importance. By stipulating, as re- quired by the Code, the appellant will incur the peril of an adverse decision upon any one of several exceptions, none of which, or all together, may present questions which, if decided adversely to him, would be necessarily fatal to the action ; while, on the other hand, by not appealing, but submitting to the delay and expense of a new trial, he may be able, on such trial, to obviate every objection to a recovery. It follows that an appeal to the court of appeals, from an order granting a new trial, in an action tried by a, jury, will be proper and advisable only when the order has been granted upon a record presenting questions of law only ; and also where the record presents no question or exception upon which the order could be sustained in the court of appeals, except such as, if decided adversely to the appellant, would be necessarily fatal to his action or defense on a new trial, so that in no aspect can his case be varied and put in a better form upon a re-trial. In such a case the delay and expense of a new trial would be unavailing, and the party would hazard noth- ing by the appeal. Dickson v. Broadway & Seventh Avenue B. B. Co., 47 N. Y. (2 Sick.) 507. An appeal from an order refusing a new trial is always advis- Vol. III.— 57 450 NEW TEIAL. Case, how prepared. able when the interests involved will warrant the proceeding, and the merits of the application are reasonably apparent. b. Case; how prepared. As the court of appeals will take cognizance of errors of law only, and not errors of fact, except where the trial is by the court or a referee (see East River Bank v. Kennedy, 4 Keyes, 279 ; Dickson v. Broadway & Seventh Avenue R. R. Co., 47 N. Y. [2 Sick.] 507, 511), it becomes neces- sary, for the purposes of an appeal to that tribunal, to expunge from the case, as originally prepared, all the detailed statements of evidence. See Moore v. Westervelt, 1 Code E. N". S. 415. A case, containing exceptions, raising questions of law, is made, and those questions only can be considered. East River Bank v. Kennedy, 4 Keyes, 279. See Livingston v. Radcliff, 2 N". Y. (2 Comst.) 189 ; S. C, 3 How. 417. Where the exceptions are in the first instance stated in a case containing matter not necessary to present the legal questions arising upon them, the party desiring a review in the court of appeals should procure the exceptions, to be separated from the case by or under the direction of the court below, or a justice thereof ; and if it does not appear from the return, either that the exceptions were in the first instance stated separately, or that they were separated from the case in which they were originally stated under the direction of the court below, or a judge thereof, the appeal will be dismissed. ZabrisMe v. Smith, 11 N". Y. (1 Kern.) 480. This rule, relating to the dismissal of an appeal, is also appli- cable to cases tried by the court or by referees. The finding of the court or referees must settle the material facts in the case, and they must come up in that shape, and not in a detail of the evidence. Qriscom v. The Mayor of New York City, 12 N. Y. (2 Kern.) 586 ; Newton v. Bronson, 13 N". Y. (3 Kern.) 587 ; Colie v. Brown, 1 Code K, N. S. 416 ; Plato v. Reynolds, 27 N Y. (13 Smith) 586. And this finding must be made separately in the manner prescribed by sections 268 and 272 of the Code. See Johnson v. Whitlock, 12 How. 571; S. C, 13 H". Y. (3 Kern.) 344 ; Hunt v. Bloomer, 13 N. Y. (3 Kern.) 341; Cowen v. Village of West Troy, 43 Barb. 48 ; People v. Albany & Susquehanna Railroad Co., 57 id. 204, 210. Application for a resettlement of a bill of exceptions must be made to the court below, even though the return has been actually filed ; and it is not necessary to first make application NEW TKIAL. 451 Case, how prepared. to the court above for a remitter of the record. Wilbeck v. Waine, 8 How. 433. Where it appears that certain questions of law were actually and distinctly presented by exceptions taken at the trial, although they are imperfectly stated, the court of appeals will, on motion, stay the argument of the cause, in order to afford the appellant an opportunity to make application to the court below for a resettlement according to the facts ; and the return, after amend- ment, will be allowed to retain its original date of filing. Livingston v. Miller, 7 How. 219. It is provided by section 268 of the Code, that "no finding of facts by the general term shall be required for the purpose of re- view in the court of appeals, and, if the judgment be reversed at the general term, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and, in that case, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review by the court of appeals. And for the pur- poses of an appeal from a judgment rendered on a report of a referee, or the decision of a judge on a trial without a jury, it shall not be necessary to insert at large in the case the findings of fact or conclusions of law of such judge or referee, or the ex- ceptions thereto filed ; but, if the same appear as part of the judgment-roll, they may be referred to and used on the argument of the appeal with the same effect as though inserted in the PART IX. COSTS. CHAPTER I. OF COSTS IN GENERAL. ARTICLE I. GENERAL PRINCIPLES. Section 1. In general. a. Rigid to, on what founded. At common law, neither the plaintiff nor the defendant was entitled to costs, professedly as snch, and the right to them must be regarded as wholly of statu- tory origin. 2 Inst. 288; The Supervisors of Onondaga v. Briggs, 3 Denio, 173. Previous, however, to the enactment of any statute on the subject, although costs were not given to either party, yet, if the plaintiff did not prevail in his action, he was amerced for his false claim, which went to the king ; and if he did prevail, then the defendant was similarly amerced for his unjust detention of the plaintiff 's right ; but the plaintiff received no indemnity for the costs to which he had been subjected in obtaining his right. Gilb. Hist. C. P. 260, 265. Costs eo nomine were introduced by the statute of Gloucester (6 Edw. I, ch. 1, § 2), by the provisions of which the plaintiff was entitled to costs in all cases in which he recovered damages ; and the courts then began to make it a rule that the jury should tax the damages and costs separately, so that it might appear to the court that the costs were not considered in the damages. Gilb. C. P. 267. The statute of Gloucester was followed by other statutory en- actments relating to the same subject, all of which were substan- tially re-enacted, at an early period, in this State. See 1 R. L. 1813, ch. 96, p. 343. And, in a modified form, their provisions were subsequently incorporated into the Revised Statutes. See 2 R. S. 612, 635. 454 COSTS. Reasons for allowing — Costs under the Code. Under these various statutes, costs principally consisted of the fees allowed to attorneys and counsel for their services in the management o£ the proceedings ; but they also included the fees paid to the other officers of the court, fees of witnesses, and such other disbursements as became necessary in the progress of the action. 1 Burr. Pr. 271. The costs awarded by the judgment, under the provisions of the statute, belonged to the attorney, and hence it was a rule, that a party, not an attorney, conducting a suit or defense in person, was not entitled to costs (Stewart v. New Yorh C. P., 10 Wend. 597), although he might recover his disbursements. The People v. Steuben C. P., 12 Wend. 200. Costs in chancery were not dependent upon any statutory pro- visions, but, for the most part, they rested in the sound discre- tion of the court, which was exercised under a consideration of all the circumstances of each particular case. JEasfburn v. Kirlc, 2 Johns. Ch. 317. b. Reasons for allowing. The reasons for giving costs to the successful party in an action seem to be founded in a principle of natural justice ; for if a person commit an injury, or resist an honest claim, it is but just that he should be compelled to make compensation, not only for the principal injury, but also as an indemnity to the injured party for the costs and expenses necessarily incurred in obtaining redress in the proper court. So, on the other hand, if the suit or proceedings instituted by the plaintiff should prove to be groundless, he should be com- pelled to defray the reasonable costs expended by the defendant in resisting the unjust claim. The above principle was recognized, and is thus briefly stated by the framers of the Code in their report to the legislature : " The losing party ought, as a general rule, to pay the expense of the litigation. He has caused a loss to his adversary unjustly, and should indemnify him for it. The debtor who "refuses to pay ought to make his creditor whole." Code Com. 3t§p. 1848, p. 208. c. Costs under the Code. The provisions of the Code, regu- lating the subject of costs, are embraced within title X, part II, of that instrument, and through the operation of these provis- ions a complete and radical change has been brought about, and an entirely new system of costs substituted for the old system previously existing. COSTS. 455 Costs under the Code. The change referred to is thus indicated by section 303, which provides that "all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counsel for his compensation, are repealed ; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity, for his expenses in the action ; which allowances are in this act termed costs." Costs, under the Code, are composed : 1. Of the certain sums allowed in lieu of attorney' s fees. 2. Of the fees of officers. 3. Disbursements, such as postage, witnesses' fees, printing bills, etc. (Belding v. OonMin, 4 How. 196 ; S. O, 2 Code R. 112 ; Wheeler v. Westgate, 4 How. 269) ; and it will be observed that, as between the parties to the action, these sums are, by the above section, expressly awarded to the prevailing party ; and, even when the judgment is for costs alone, such party is prima facie entitled to it. Martin v. Kanouse, 11 How. 567. The Code, however, still recognizes the right of the attorney to his lien for his services in the action, and this right will be protected now as formerly. Sherwood v. Buffalo & New York City Mail- road Co., 12 How. 136. See. vol. 1, pp. 246 to 248, where this subject is fully discussed. Costs do not become a debt against either party to an action, unless he expressly agrees to pay them, until the recovery of judgment in favor of the opposite party. Torry v. Hadley, 14 How. 357 ; Warfield v. Watkins, 30 Barb. 395. If a settlement before judgment is made without any provision for the payment of costs, the plaintiff loses them. lb. But if such settlement be made in fraud of the plaintiff's right to costs, the rule is other- wise. Bogardus v. Richtmeyer, 3 Abb. 179. See, also, Taylor v. Rennie, 22 How. 101. Where a second suit is brought for the same cause of action, a stay of all proceedings on the part of the plaintiff, in such suit, will be ordered, until the costs of the first suit are paid {Edwards v. The Ninth Avenue R. R. Co., 22 How. 444 ; Richardson v. White, 27 id. 155) ; but, where the nature of the relief sought 456 COSTS. What statute controls — Interlocutory or final costs. in the two proceedings is not identical, the above rule is not ap- plicable. Davis v. Duffle, 5 Duer, 688 ; S. C., 3 Abb. 363. d. What statute controls. The right of a party to costs, under the Code, is governed exclusively by statute ; and the statute which is in force at the time of the recovery of the judgment under which costs are claimed, is held to be controlling. Fisher v. Hunter, 15 How. 156 ; Huoer v. Lockwood, 15 id. 74 ; Cook v. The New York Floating Dry Dock Co., 1 Hilt. 556 ; Craryv. Norwood, 5 Abb. 219. See Steward v. Lamoreaux, 5 id. 14, in which case the defendants failed to answer, and it was held that the costs were to be governed by the statute existing at the time of taxation, without regard to the time when the default actually occurred. Where the cause is tried by a jury, the right to costs is regu- lated by the statute in force at the time the verdict is rendered. Moore v. Westervelt, 14 How. 279 ; S. C, 6 Duer, 684 ; Burnett v. Westfall, 15 How. 420 ; Cook v. New York Floating Dock Co., 1 Hilt. 556 ; Scudder v. Oori, 28 How. 155 ; S. C, 18 Abb. 207 ; 3 Rob. 629. And where the cause has been tried more than once, by the statute in force at the time of the final verdict. Jonqs v. Underwood, 18 How. 532 ; Jackett v. Judd, id. 385. If the cause is tried by the court without a jury, costs are regulated by the statute in force at the time of the making and filing of the decision. Hunt v. Middlebrook, 14 How. 300. If tried by a referee, at the time the report is filed, Torry v. Hadley, 14 How. 357. See Hunt v. Middlebrook, 14 How. 300. e. Interlocutory or final costs. A distinction is made between interlocutory and final costs, which is important to be remem- bered, as the times and modes of collecting them are materially different. Interlocutory costs are such as arise out of the intermediate stages of the action, and are allowed on special motion, on which an order is granted, deciding some intervening matter in the cause, without any reference to its final event. Final costs include all other costs, and are allowed upon the termination of the action by judgment, in favor of one party or the other. See Mora v. Sun Insurance Co., 22 How. 60 ; S. C, 13 Abb. 304. Costs awarded on a demurrer to part of a pleading are final, and not interlocutory costs. Palmer v. Smedley, 13 Abb. 185 ; Mora v. Sun Insurance Co., 22 How. 60 ; S. C, 13 Abb. COSTS. 457 Costs, when proceedings void — In actions pending in 1848. 304. See Henderson v. Jackson, 2 Sweeny, 603 ; S. 0., 9 Abb. N". S. 293 ; 40 How. 168. And the same has been held, as to costs on a motion granting judgment for the frivolousness of a demurrer. Wesley v. Bennett, 6 Abb. 12. See Bernhardt v. Kapp, 11 Abb. H. S. 342 ; Hill v. Simpson, id. 343. /. Costs, when proceedings void. On the dismissal of an ac- tion for want of jurisdiction, the New York superior court holds that the defendant is entitled to costs. McMahon v. The Mu- tual Benefit Life Ins. Co., 8 Abb. 297 ; S. C, 3 Bosw. 644 ; Don- nelly v. Libby, 1 Sweeny, 259. And the same doctrine has also been held by the supreme court, in King v. Poole, 36 Barb. 242 ; and in Cumberland Coal Co. v. Hoffman Coal Co., 39 id. 16 ; S. C, 15 Abb. 78. See, also, McMahon v. Mutual Benefit Life Ins. Co., 12 id. 28. But the court has no power to award costs on dismissing proceedings for a want of jurisdiction which ap- pears on the face thereof. Humiston v. Ballard, 40 How. 40 ; reversing S. C. on this point, 39 id. 93 ; Gormly v. Mcintosh, 22 Barb. 271 ; Harriott v. The New Jersey R. R. dh Trans. Co., 1 Daly, 377 ; reversing S. C, 8 Abb. 284. g. On improper pleadings. An improper or unauthorized pleading, being a mere nullity, can raise no issue to be tried, and hence no costs can be allowed for a trial had thereon. Sleight v. Hancox, 4 Abb. 245. A demurrer to an answer which does not contain new matter constituting a counter-claim, has been held to be such an un- authorized pleading as to be considered a mere nullity. Richt- myer v. HasMns, 9 How. 481 ; Roosa v. The Saugerties & Wood- stock Turnpike Road Co., 8 id. 237 ; Perkins v. Farnham, 10 id. 120. See Robinson v. Judd, 9 How. 378 ; Bass v. Comstock, 36 id. 382 ; S. C, 38 N. Y. (11 Tiff.) 21 ; 5 Trans. App. 22. 7i. In actions pending in 1848. The provisions of the Code, relating to costs, have been construed as having no application to the costs in suits pending prior to July 1, 1848, with the single exception pf costs of motions therein, on a final determination in the court of appeals. Doty v. Brown, 4 How. 429 ; Truscutt v. King, id. 173. The old chancery fee bill was not repealed by the Code, but it has been held to be applicable only to proceedings had prior to July 1, 1851, in equity suits commenced before the Code. Curtis v. Leavitt, 1 Abb. 118 ; S. C, 19 Barb. 530. Common-law actions pending in courts of record when the Vol. III.— 58 458 COSTS. To defendants. Code took effect, but tried afterward, are to be governed as re- spects costs by the previous statutes. But costs of the proceed- ings, subsequent to the verdict, are governed by the provisions of the Code. McMasters v. Vernon, 4 Duer, 625 ; S. C, 1 Abb. 179 ; Fitch v. Livingston, 4 Sandf. 712 ; Rich v. Husson, 1 Duer, 617 ; S. C, 11 N. Y. Leg. Obs. 119. i. To defendants. It is provided, by section 305 of the Code, that costs shall be allowed of course to the defendant in the actions mentioned in section 304, unless the plaintiff be entitled to costs therein. On the dismissal of an action, the defendant is, prima facie, entitled to costs ; and, if the plaintiff would escape the operation of the general rule, he must bring himself within some one of the exceptions to it. Banla v. Marcellus, 2 Barb. 373. The object and design of the above section is to indemnify each defendant who shall be unjustly brought into court, and com- pelled to defend himself against an unfounded claim. Hence, in an action for a tort, where a verdict is rendered in favor of certain of the defendants and against others, the defendants prevailing are entitled, of course, to costs, under section 305, although all the defendants had joined in- a single answer. Daniels v. Lyon et al., 9 1ST. Y. (5 Seld.) 549 ; Decker v. Gardiner, 81.1(4 Seld.) 29. See. Hinds v. Myers, 4 How. 356 ; S. C, 3 Code R. 48 ; Brown v. Bowen, 16 How. 544 ; Contra, Bulkley v. Smith, 1 Duer, 704. And the same rule has been held to be applicable as to costs in actions on contracts. Coroett v. Ward, 3 Bosw. 632. See Bridgeport Fire & Marine Ins. Co. v. Wilson, 20 How. 511; S. C, 7 Bosw. 699 ; 12 Abb. 209. But where two defendants, sued on the same instrument, both appear by the same attorney, and interpose substantially the same de- fense, although by separate answers, only one bill of costs can be allowed on their prevailing in the action. Atkins v. Lefever, 5 Abb. K S. 221. Where the defense of infancy is set up by one of several de- fendants, the plaintiff may, as to him, discontinue *the action without costs, on application to the court before trial. But, if the infant is obliged to establish his infancy, he is entitled to costs. Cuyler v. Coats, 10 How. 141. And where two defend- ants are jointly liable, and process has been served only upon one, if the one not served moves that the plaintiff be compelled to receive his answer, which sets up the sole defense of infancy, COSTS. 459 To defendants. the plaintiff should be allowed to discontinue without costs as to such defendant, except the costs of the motion. Wellington v. Classon, 9 Abb. 175; S. C, 18 How. 10; Waterbury Manu- facturing Co. v. Krause, 1 Hilt. 560 ; S. C, 9 Abb. 175, n. Neither party to an action is entitled to costs, where the plain- tiff recovers less than $50, although he extinguishes a counter- claim set up in the answer which exceeds that amount. Kalt v. Lignot, 3 Abb. 190 ; affirming S. C, id. 33 ; 12 How. 535. See Landsberger v. The Magnetic Telegraph Co., 8 Abb. 35 ; Boston Mills v. Hull, 6 Abb. M". S. 319 ; S. C, 37 How. 299 ; 1 Sweeny, 359. If, however, the action is one of which a justice of the peace has no jurisdiction, the plaintiff may recover costs, al- though his verdict is for less than $50 after extinguishing a set- off, lb. See Contra, Crane v. Holcomb, 8 Abb. 35, 36 ; S. C. affirmed, 2 Hilt. 269 ; and see Griffin v. Brown, 35 How. 372 ; S. C, 53 Barb. 428. Section 305 of the Code is confined to the actions mentioned in section 304, which has no application to foreclosure suits ; and where the plaintiff discontinues an action for the foreclosure of a mortgage before judgment, the allowance of costs to the defend- ants would seem to rest in the discretion of the court. Gallagher v. Egan, 2 Sandf. 742 ; Pratt v. Ramsdell, 16 How. 59 ; S. C, 7 Abb. 340, n; S. C. affirmed, 16 How. 62, n; Bartow v. Cleve- land, 7 Abb. 339 ; S. C, 16 How. 364. CHAPTER II. WHAT COSTS ALLOWED ON ENTEY OF JUDGMENT. ARTICLE I. WHEN ALLOWED, AND THE AMOUNT. Section 1. Costs when title to land is in question. a. In general. Full costs shall be allowed, of course, to the plaintiff, upon a recovery in an action for the recovery of real/ property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. Code, § 304, subd. 1. The term title, as used in this section of the Code, means right of possession and not possession in fact, nor mere right of prop- erty ; and where actual possession is sufficient to maintain the action, evidence in regard to such actual possession does not draw the title in question. * Mutter v. Bayard, 15 Abb. 449. And it has been held, that no question as to title arises in an action to recover damages for the breach of an agreement to convey lands, where the only issue raised is as to whether there was an incum- brance resting upon the lands ; as, for example, a right of dower, etc. Smith v. Biggs, 2 Duer, 622. « Neither is the question as to whether certain fixtures are part of the realty, a question of title within the meaning of the above section. Burnet v. Kelly, 10 How. 406 ; nor is a question (incidentally raised), as to the own- ership of land by a third party, a question of title under the statute as to costs. The statute means a contested title as to some particular lands to which the plaintiff claims title. lb. And the claim of title must be one which is in controversy between the parties, and not a claim the justice of which is con- ceded by the defendant. (J Reilly v. Dames , 4 Sandf. 722. See Rathlone v. MeConnell, 21 N. Y. (7 Smith) 466 ; S. C, 20 Barb. 311. Where the issue is not raised by the pleadings, the only proper evidence that can be received, as to whether or not the title came in question at the trial, is the certificate of the judge who tried the cause. Mies v. Lindsley, 1 Duer, 610 ; S. C, 8 How. 131 ; Utter v. Gifford, 25 id. 289. See Burnet v. Kelly, 10 How. 406 ; COSTS ALLOWED IN JUDGMENTS. 461 When title arises on the pleadings. Blake v. James, 19 id. 321. The certificate of a referee that the title to land came in question is of no avail, where, from the pleadings, the court can see that it did not. Squires v. Seward, 16 How. 478. Although the plaintiff may recover a verdict in the action, yet if he fails on the issue of title, it is not a recovery within the meaning of the statute, and he is not entitled to costs under its provisions. Burhans v. Tibbits, 7 How. 74. See Alexander v. Hard, 42 How. 131 ; id. 384. b. When title arises on the pleadings. To bring an action within the provisions of section 305, there must be a real issue upon the question of title. An immaterial issue is insufficient for this purpose, even though title is alleged in the complaint and denied in the answer. Rathbone v. MeOonnell, 20 Barb. 311 ; S. C. affirmed, 21 N. Y. (7 Smith) 466. Where an action is, in substance, the, former action of waste, the complaint alleging a forfeiture and praying for a recovery of possession, the plaintiff' s title is material. Snyder v. Beyer, 3 E. D. Smith, 235. And so a claim of title to growing trees or shrubbery raises an issue of title to land. Powell v. Rust, 8 Barb. 567 ; S. C, 1 Code R. N. S. 172. A mere license is not an interest in lands, such as to draw the title in question. Turner v. Van Riper, 43 How. 33 ; Boolittle v. Eddy, 7 Barb- 74. Hence, a defense of leave and license does not raise a question of title. Rathbone v. McDonnell, 20 Barb. 311 ; S. C. affirmed, 21 N. T. (7 Smith) 466 ; People v. New YorJc Common Pleas, 18 Wend. 579 ; Wickham v. Seely, id. 649 ; Launitz v. Barnum, 4 Sandf. 637 ; Midler v. Bayard, 15 Abb. 449 ; Utter v. Qifford, 25 How. 289. In an action for damages inflicted by the defendant' s dog, an answer alleging that the dog was, at the time, on the defendant's premises, and that the plaintiff had no right to be there, does not put in issue a claim of title, so as to entitle the plaintiff to costs under the provisions of the statute. Pierret v. Mfder, 3 E. D. Smith, 574. But, in an action for an assault, where the answer states that the place where the trespass is alleged to have been committed is a public highway, a denial of the allegation will bring the title to lands in question. Binehart v. Wells, 2 Barb. 432 ; Heath v. Barmour, 35 How. 1 ; S. C, 53 Barb. 444 ; Hall v. Hodskins, 30 How. 15. In an action for a trespass upon lands, title is not 462 COSTS ALLOWED IN JUDGMENTS. When title arises on the evidence. a material issue, unless it appears upon the face of the pleadings that the plaintiff is not in possession. Squires v. Seward, 16 How. 478 ; Miller v. Decker, 40 Barb. 228 ; Bathbone v. Mc- Connell, 21 N. Y. (7 Smith) 466 ; S. O, 20 Barb. 311. But where it appears, from the face of the pleadings, that the plaintiff is not in possession, the actual title is in issue, if title is denied. Miles v. Lindsley, 1 Duer, 610 ; S. C, 8 How. 131. The rule is other- wise, however, if title is admitted by the answer. Wickham v. Seely, 18 Wend. 649. In that case the right of the plaintiff to recover costs depends upon the amount of the recovery, and is determined by the fourth subdivision of section 304 of the Code. Turner v. Van Biper, 43 How. 33. It was a rule under the Revised Statutes, and in the earlier decisions of the courts, that a claim to an easement, by prescrip- tion or grant, was sufficient to raise a question of title, if dis- puted. Heaton v. Ferris, 1 Johns. 146 ; Eustace v. Tuthill, 2 id. 185 ; Tunicliff v. Lawyer, 3 Cow. 382 ; Striker v. Mott, 6 Wend. 465 ; Badley v. Brice, id. 539. And the same rule seems to be still recognized under the Code. , See Bathbone v. McGonnell, 21 N. Y. (7 Smith) 466 ; Utter v. Oifford, 25 How. 289 ; Heath v. Barmour, 35 id. 1 ; S. C, 53 Barb. 444. c. When title arises on the evidence. Under the former system of pleading, by pleading the general issue a defendant in tres- pass put in issue the right of possession, as well as the fact of possession; and, because the rig7d' was thus put in issue, the title to the land was in question. But, under the present system, nothing is in issue but what the answer puts in issue ; and, if it does not put in issue the right to the possession, but only the fact of the possession, the title to the land is not in question. If the answer does not raise the question, the proofs cannot ; un- less, from the circumstances of the case, the fact of possession could not be proved without proving a right to the possession. It hence follows that, if the title is not put in issue by the plead- ings, or is not necessarily proved at the trial, no issue is raised such as to entitle the plaintiff to costs, under the provisions of the Code, section 304, subd. 1. Burnet v. Kelly, 10 How. 406. When costs are claimed on the ground that the question of title arises on the evidence, a certificate must be procured, from the judge or referee who tried the cause, of the fact that the title was so in question, and that the plaintiff proved his title. Code, § 304. See Squires v. Seward, 16 How. 478 ; Turner v. Van Biper > COSTS ALLOWED IN JUDGMENTS. 463 Costs in replevin. 43 id. 33. And this certificate is conclusive on the taxation of costs. Mumford v. Withey, 1 Wend. 279. The court, however, possesses the power to review the grounds upon which the cer- tificate is granted, and, if found incorrect, it may be set aside, on a direct motion for that purpose. Barney v. Keith, 6 Wend. 555. The certificate may be granted at any time before final judg- ment, and even after a taxation of costs ; but it must be. granted by the court, and not by the judge out of court. See Saratoga & Washington B. B. Co. v. McCoy, 9 How. 339 ; Woolley v. Whitby, 2 Barn. & Cr. 580 ; S. C, 4 Dowl. & Ryl. 147 ; Johnson v. Stanton, 2 Barn. & Cr. 621 ; S. C, 4 Dowl. & Kyi. 156 ; Fox- all v. Banks, 5 Barn. & Aid. 536. Section 2. Costs in replevin. a. In general. Costs, in an action to recover the possession of personal property, are regulated by subdivisions 2 and 4 of section 304 of the Code. Upon a recovery in such an action the plaintiff is entitled to costs as of course ; but if he recover less than $50 damages he will recover no more costs than damages, unless he recovers also property the value of which, with the damages, amounts to $50, or the possession of property be ad- judged to him, the value of which, with the damages, amounts to $50 ; such value to be determined by the jury, court or referee by whom the action is tried. Code, § 304, subd. 2, 4. Under this section of the Code, upon recovery of less than $50 damages, the damages recovered are the measure of the costs. Thus, where the plaintiff recovered $25, and only six cents dam- ages, his costs were assessed at only six cents. Minks v. Wolf, 8 How. 238. See Corbin v. Milton, 27 How. 76. But a verdict in the plaintiff's favor is sufficient to deprive the defendant of any right to tax his costs as of course, though the recovery be insuffi- cient to carry full costs to the former. Von Schoening v. Buchanan, 14 Abb. 185; S. C, 23 How. 164; 14 Abb. 468; affirming S. C, 23 How. 44. In an action for the possession of personal property, where the defendant before the re-taking of the property, under an equitable defense, tenders an amount which he claims to be the only sum due to the plaintiff, and keeps the tender good, and where upon the trial a verdict is found in favor of the plaintiff for a less sum than the tender, the plaintiff in his judgment is not entitled to costs. Archer v. Cole, 22 How. 411. 464 COSTS ALLOWED IN JUDGMENTS. Cqsts in actions for torts to person or character. And where, in an action to obtain the delivery of personal property, the plaintiff has a verdict for the retnrn of a portion of the property, and the defendant a verdict for the residue, each party is entitled to costs against the other. Porter v. Willet, 1'4 Abb. 319 ; Summers v. Jarvis, id. 322 n. If the plaintiff resort to any other form of action, for the possession of personal property, he can tax no costs at all agafnst the defend- ant, where his recovery is less than $50, though he may have actually succeeded in possessing himself of the property. Thus, an action for damages was brought against the defendant, for entering the plaintiff's premises and taking possession of certain personal property.' The plaintiff obtained an injunction to restrain the defendant from meddling with the property, and then sold the goods himself and received the avails. On the trial the defendant proved that a portion of the property belonged to him, and he recovered a judgment against the plaintiff, for the conversion thereof, for a sum over $50 ; and it was held that from the form of the action and the mode of procedure which the plaintiff had adopted, the defendant must be considered as the successful party, and was, therefore, entitled to costs. AsMey v. Marshall, 9 Abb. 361 ; S. C, 19 How. 110; 30 Barb. 426 ; S. C. affirmed, 29 1ST. Y. (2 Tiff.) 494. Section 3. Costs in actions for torts to person or character. a. In general. Costs shall be allowed, of course, to the plain- tiff in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduc- tion. But if, in any such action, he recover less than $50 dam- ages, he shall recover no more costs than damages. Code, § 304, subd. 4. Disbursements are included in the costs allowed, and, there- fore, where a plaintiff recovers less than $50 in an action for a tort, he is not entitled to recover the fees of officers and disburse- ments, in addition to the amount of costs equal to the verdict. Belding v. Conklin, 4 How. 196 ; Wheeler v. Westgate, id. 269 ; Stone v. Duffy, 3 Sandf. 761 ; S. C, 1 Code E, N. S. 129. . o. In New York city. It is provided by statute, that "the marine court of the city of New York shall have jurisdiction over and cognizance of actions of assault and battery, false imprisonment, malicious prosecution, libel and slander, where the damages claimed do not exceed $500 ; and the costs in all such actions, when prosecuted in any other court in the city of COSTS ALLOWED EST JUDGMENTS. 465 When justices' courts have no jurisdiction. New York, are hereby limited to the amount which would have "been recovered in said marine court if prosecuted therein ; but in no such action shall the costs exceed the damages recovered." Laws of 1853, ch. 617, § 1. See Laws 1873, ch. 453, as to the present jurisdiction of this court. "Whether or not any action above named is within the provis- ions of this statute is to be determined by the amount claimed, and not by the amount recovered. Thus, where in such an action brought in a court of record the damages claimed exceed $500, if the plaintiff recover, his right to costs will be regulated by the provisions of the Code. Murray v. Be Gross, 12 N. Y. Leg. Obs. 311 ; S. C, 3 Duer, 668. The provisions of the statute are applicable only to actions commenced in the city of New York, and not to an action com- menced in another county and afterward transferred to the city and county of New York. SleigM v. Hancox, 4 Abb. 245. Section 4. When justices' courts have no jurisdiction. a. In general. Costs shall be allowed, of course, to the plaintiff upon a recovery in actions of which a court of a justice of the peace has no jurisdiction. Code, § 304, subd. 3. This subdivision of section 304 gives costs to the plaintiff upon a recovery for any amount in the actions in which a justice of the peace has no jurisdiction. The actions of which a justice has jurisdiction, as conferred by statute, are specified in section 53 of the Code. The actions in which he has no jurisdiction are specified in section 54. When actions, of which a justice of the peace has no jurisdiction, are spoken of in section 304 of the Code, those only are referred to that are expressly withdrawn from the jurisdic- tion of such officer by section 54 of that act. Turner v. Van Riper, 43 How. 33 ; Blank v. Westcott, 7 Abb. N. S. 225 ; Finder v. Stoothoff, id. 433. Jurisdiction of the action, and not of the claim of damages, is made to determine the plaintiff's right to costs if the recovery be for less than $50. lb. Thus, ,a justice has no jurisdiction of an action on a note, or other contract, although the damages claimed may exceed $200, but, because of the amount, he cannot try it ; yet, if the action is brought in the supreme court, and the plaintiff recover less than $50, he will not be entitled to costs as, of course, under subdivision 3 of section 304 of. the Code. Blank v. Westcott, 7 Abb. N. S. 225. So a justice of the peace has jurisdiction of an action for Vol. III.— 59 466 COSTS ALLOWED IN JUDGMENTS. When justices' courts have no jurisdiction. damages for injury to rights pertaining to the person, but cannot try it if the damages claimed exceed $200 ; yet, if the action is brought in the supreme court, and the damages claimed exceed $200, the plaintiff cannot have costs unless the amount of the recovery exceeds $50. Pinder v. Stoothoff, 7 Abb. N. S. 433. The principal questions which have arisen as to the actions of which a justice has no jurisdiction, have reference to the class of cases specified in subdivision 4, section 54 of the Code, namely, "a matter of account where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed $400." Under these provisions of the Code it has been decided that a plaintiff who sues in a court of record in an action arising on contract and for the recovery of money only, and proves con- tested demands which, with those established by the defendant, exceed $400 in amount, is entitled to costs as a matter of course, if he recovers any sum whatever. Stilwell v. Staples, 3 Abb. 365 ; S. C, 5 Duer, 691 ; Griff en v. Brown, 35 How. 372 ; S. C, 53 Barb. 428. The admission by the defendant at the trial of such matters of account is sufficient proof thereof to entitle the plaintiff to costs in such a case. lb. _ A plaintiff is not compelled to first commence his action in a justice's court. It is enough to entitle him to costs, if the facts as proved on the trial, in the supreme court, show it to be a case of which a justice has no jurisdiction. GflacTcin v. Zeller, 52 Barb. 147 ; Stilwell v. Staples, 3 Abb. 365 ; S. C, 5 Duer, 691 ; Ryan v. Boyle, 40 How. 215 ; Lund v. Broadjiead, 41 id. 146. The adjudication of the justice before whom the cause is first tried is conclusive upon the question as to the amount of the accounts of both parties ; and, after such adjudication, the plain- tiff is bound to commence his action in the supreme court, and is entitled to costs upon the recovery of any amount in that court. Bailey v. Stone, 41 How. 346 ; Fuller v. Conde, 47 N. Y. (2 Sick.) 89. The case of mutual accounts, intended by the statute, is where each party has a claim against the other upon which either party might sue. Brady v. Burbrow, 2 E. D. Smith, 78 ; Oriffen v. Brown, 35 How. 372; S. C, 53 Barb. 428. Mere payments, .made toward satisfying a debt, are held not to be items of account COSTS ALLOWED IN JUDGMENTS. 467 Actions to recover money only. within this rule. Grim v. CronkMte, 15 How. 250 ; Hoodless v. Brundage, 8 id. 263. See Lund v. Brodhead, 41 id. 146. In an action commenced in a justice' s court, and transferred to the supreme court on a plea of title, and where' the plaintiff suc- ceeds upon one cause of action only, and that recovery is less than $50, and he fails as to the others, upon which the defendant succeeds, the plaintiff must still be allowed costs, where there is no certificate of the court that title to real property came in ques- tion on the trial. Code, § 61 ; Blake v. James, 19 How. 321. See Morss v. Salisbury, 48 K". Y. (3 Sick.) 636. Those issues to which the plea of title is not interposed should not be taken to the supreme court, and, if they are, they have no influence on the question of costs. Morss v. Jacobs, 35 How. 90. Thus, where damages are given to the plaintiff for trespasses on land to which the defendant omitted to plead title, the plain- tiff is not entitled to costs unless he recovers $50. lb. So where the defendant admits the title of land to be in. the plaintiff, but justifies the alleged trespass on the ground of license, the ques- tion of title does not arise, and the plaintiff, on recovering less than $50, is not entitled to costs. Craven v. Price, 37 How. 15 ; S. O, 53 Barb. 442 ; Turner v. Van Riper, 43 How. 33. Section 5. Actions to recover money only. a. In general. In an action for the recovery of money, the plaintiff is entitled to costs, as of course, if he recover $50. Code, § 304, subd. 4. This provision of the Code is held to be applicable only in an action where the plaintiff merely seeks to recover a judgment for money only, and does not include actions in which relief, other than a judgment for money, must be granted, in order to enable him to maintain the action. Buchanan v. Morrell, 13 How. 296 ; S. O, 6 Duer, 658 ; Guilhon v. Lindo, 9 Bosw. 601. An action commenced against a railroad company, to recover a fine imposed by statute, was held to be a civil action for the recovery of money, and the plaintiff was allowed costs under the provisions of section 304. People v. New York Central R. R. Co., 28 Barb. 284. So in an action upon a promissory note, brought against the representatives of a deceased joint debtor, upon the insolvency of the survivor, in which the surviving joint debtor was made a co-defendant and a recovery had in favor of the plaintiff, it was held that, under this section of the Code (304), the plaintiff was entitled to costs. Tories v. Peck, 9 How. 201. 468 COSTS ALLOWED IN JUDGMENTS. Actions to recover money only — Separate issues. In estimating the amount of the plaintiff's recovery, for the purpose of determining his right to costs, the damages assessed are alone to be taken into account, and unless the damages recovered by him amount to $50, exclusiva 'of the costs as- sessed by the jury, the defendant recovers full costs. Scoville v. Kent, 8 Abb. N. S. 17 ; Van Home v. Petrie, 2 Cai. 213 ; Seaman v. Bailey, id. 214. See Troy City Bank v. Grant, 1 How. 135. Costs will be allowed of course to the defendant if the action is decided in his favor. Code, § 305. See ante, chap. 1, art. 1, § 1 i, p. 458. ' ' When several actions are brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions shall, at the time of the commence- ment of the previous action or actions, have been within this State, and not secreted." Code, § 304, subd. 4. It is provided by section 310 of the Code, that "when the judgment is for the recovery of money, interest from the time of the verdict or report until judgment be finally entered shall be computed by the clerk, and added to the costs of the party enti- tled thereto." And by the provisions of a recent statute, it shall be lawful for any party to a suit, who shall have obtained a verdict or a report of referees in his favor to tax interest upon the amount of such verdict or report, as costs, from the time of the obtaining of the same to the time of the perfecting judgment therein." Laws of 1869, ch. 807, § 3. Where a clerk is authorized to compute interest on the report of a referee under section 310 of the Code, such interest should be computed from the time of making the report, and not from its date. Fuller v. Squire, 8 How. 121. See, also, Hoffm. Pr. 112 ; Hunn v. Norton, Hopk. 344. Section 6. Separate issues. a. In general. The provisions of the Kevised Statutes (2 R. S. 617, § 26), that "when there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on the issues found for him, and that the defendant shall recover on COSTS ALLOWED IN JUDGMENTS. 469 Several defendants — Separate bill of costs. those found in his favor," have been held to be unrepealed by the Code ; and where several distinct causes of action are stated in the complaint, on some of which the plaintiff succeeds, and on others the defendant, the rule as to costs is the same as under the Eevised Statutes, if the action is one in which costs are a matter of right. Dresser v. Wickes, 2 Abb. 460. See Porter v. Willet, 14 Abb. 319. b. Several defendants. "In all actions where there are several defendants, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them." Code, § 306. This clause of section 306, as amended in 1851, and as it now stands, is intended to include all actions, whether of a legal or equitable nature, where the circumstances therein mentioned exist. Wilklowv. Bell, 18 How. 397; Bank of Attica v. Wolf 18 id. 102. See Bulkley v. Smith, 1 Duer, 704 ; Williams v. Horgan, 13 How. 138 ; S. C, 6 Duer, 658. And in all such cases the granting or refusing of costs rests in the discretion of the court, and such defendants cannot tax their costs as of course. Wilklow v. Bell, 18 How. 397. The following cases, Daniels v. Lyon, 9 N. Y. (5 Seld.) 549 ; Stone v. Duffy, 3 Sandf. 761 ; Decker v. Gardner, 8 N. Y. (4 Seld.) 29, and Hinds v. Myers, 4 How. 356 ; S. C, 3 Code R. 48, were decided under the provisions of section 306, before the amendment of 1851. Brown v. Bowen, 16 How. 544, which follows the above decisions, was decided without taking the amendment of 1851 into con- sideration. See Wilklow v. Bell, 18 How. 397. In an action of the class under consideration, it is in the dis- cretion of the court to restrict the defendants to one bill of costs, or to allow a separate bill to each or some of them, according to the circumstances of the case. Harper -% Chamberlain, 14 Abb. 408. But where several defendants, not united in interest, or, being so united, do not make a separate defense by separate answers, but unite in a general denial as their answer, such as are entitled to judgment, on the plaintiff's failure to recover against all, are entitled to costs, of course. Daniels v. Lyon, 9 N. Y. (5 Seld.) 549 ; Decker v. Gardiner, 8 N. Y. (4 Seld.) 29 ; Zink v. Attenburg, 18 How. 108 ; Corbett v. Ward, 3 Bosw. 632. c. Separate bill of costs. Defendants, however numerous, appearing by one attorney, are entitled to recover but one bill of 470 COSTS ALLOWED IN JUDGMENTS. Separate bill of costs — Costs to plaintiff. costs, on succeeding in trie action, although they may have put in separate answers. Castellanos v. Beauville, 2 Sandf. 670 ; Braden v. Kakhaiser, 3 id. 760; S. C, 1 Code E,. N. S. 129; Tracy v. Stone, 5 How. 104 ; S. C, 3 Code R. 73 ; Atkins v. Lefever, 5 Abb. N. S. 221. But where it is .necessary for such defendants to interpose separate answers, they should be allowed the costs of their several answers, in addition to one general bill of costs. Walker v. Russell, 16 How. 91 ; S. C, 7 Abb. 452%; Hall v. Lindo, 8 id. 341. Where several defendants appear by attorneys who are part- ners, it is well settled that they are entitled, on recovery, to but one bill of costs. Brockway v. Jewett, 16 Barb. 590 ; Crofts v. Rockefeller, 6 How. 9 ; Ten Broeck v. Paige, 6 Hill, 267. And the rule is the same where one of their attorneys is clerk to the other {Perry v. Livingston, 6 How. 404) ; or where they sever their defenses, and collusively appear by different attorneys for the mere purpose of increasing costs. Slater Bank. v. Sturdy, 15 Abb. 75. But where separate defenses are made by several defendants, in good faith, and they appear by separate attorneys, each is entitled, on a recovery in his favor, to a distinct bill of costs. Castellanos v. Beauville, 2 Sandf. 670 ; Collomb v. Caldwell, 5 How. 336 ; S. C, 1 Code R. N. S. 41 ; Bridgeport Fire and Marine Ins. Co. v. Wilson, 20 How. 511 ; S. C, 12 Abb. 209 ; 7 Bosw. 699. And a separate defense, made by a separate demur- rer, must be regarded as coming within this rule. Wilbur v. Wiltsey, 13 How. 506. If the defendants first appear by different attorneys, but, before judgment, unite and employ the same attorney, they are entitled to but one bill of costs from the time that they ceased to employ separate attorneys. Castellanos v. Beauville, 2 Sandf. 670; S. C, 3 Code H. 204. When two actions are heard together, only one trial fee is chargeable ; but, until the trial, the costs must necessarily be separate. Hildebrant v. Crawford, 6 Lans. 502. d. Costs to plaintiff. Where the plaintiff recovers but one judgment, he is entitled to recover but one bill of costs, however numerous the defendants, or the defenses or issues may be ; and this is so, although the defendants appear by different attorneys. Buell v. Gay, 13 How. 31; Latham v. Bliss, id. 416; S. C, 6 Duer, 661 ; Phipps v. Van Cott, 15 How. 110 ; Hall v. Lindo, COSTS ALLOWED IN JUDGMENTS. 471 Default of one defendant — Equity suits, or for special relief. 8 Abb. 341. Contra, Comstock v. Halleck, 4 Sandf. 671 ; over- ruled in Buell v. Gay, 13 How. 31. e. Default of one defendant. Where one of several defend- ants, jointly liable, fails to make answer to the complaint, and the others defend the action, the defendant who has suffered a default is held jointly liable with them for all the costs recov- ered by the plaintiff. Catlin v. Billings, 13 How. 511 ; S. C, 4 Abb. 248 ; Warner v. Bord, 17 How. 54. Section 7. Equity suits, or for special relief. a. In general, or discretionary. In actions for relief, other than the mere recovery of money, or the possession of real or personal property, costs may be allowed or not in the discretion of the court. Code, § 306, subd. 1. Or, if the action is tried before a referee, the question of costs is in his discretion. Pratt v. Stiles, 9 Abb. 150 ; S. C, 17 How. 211 ; Ludington v. Toft, 10 Barb. 447; Graves v. BlancJiard, 4 How. 300; S. C, 3 Code R. 25 ; Taylor v. Root, 48 N. Y. (3 Sick.) 687. The class of actions in which the question of costs is thus left in the discretion of the court embraces all those of an equitable nature; the words, "other actions," contained in section 306, being construed as referring to other causes of action than those enumerated in section 304, which section embraces all but equity causes of action, as formerly understood. Hinds v. Myers, 4 How. 356; S. C, 3 Code It. 48; Gallagher v.flgan,2 Sandf. 742. See Riper v. Popperihawsen, 43 IS. Y. (4 Hand) 68. The following cases will serve to illustrate the nature of the actions in which costs are clearly in the discretion of the court : An action for the foreclosure of a mortgage (CPHara v. Brophy, 24 How. 379 ; Bartow v. Cleveland, 7 Abb. 339 ; S. C, 16 How. 364 ; Pratt v. Ramsdell, 7 Abb. 340, n. ; S. C, 16 How. 59) ; an injunction suit (Btaiger v. Schultz, 3 Abb. 1ST. S. 377 ; S. C, 3 Keyes, 614 ; 3 Trans. App. 4) ; or, to set aside an assignment for the benefit of creditors ( Webb v. Daggett, 2 Barb. 10) ; and so in cases where the question is as to the granting or withholding of letters testamentary upon a will (3 R. S. [5th ed.] 909, § 6; ScJimck v. Dart, 22 N. Y. [8 Smith] 420 ; McGregor v. Buell, 33 How. 450 ; S. C, 1 Keyes, 153; reversing S. C, 17 Abb. 31) ; or, where an action is commenced by the personal representatives of a deceased judgment-creditor, to revive the judgment and obtain execution. Ireland v. Litchfield, 22 How. 178 ; S. C, 8 Bosw. 634. 472 COSTS ALLOWED IN JUDGMENTS. Rules for allowing or refusing. It has also been decided that costs are in the discretion of the court in all actions in which more than one species of relief is demanded ; as, for example, where money, and also the recov- ery of specific property, are demanded in one action. Cahoon v. The Bank of Utica, 7 N. Y. (3 Seld.) 486. See Till. & Shear. Pi. 595. Though the subject of costs, in the class of cases mentioned, as a general rule, rests in the discretion of the court, yet this dis- cretion is to be exercised in accordance with certain well-estab- lished rules, and with a regard to the equities of each particular case. Eastbum v. Kirk, 2 Johns. Ch. 317 ; Thrall v. Chitten- den, 31 Yt. 183. b. Rules for allowing or refusing. A general rule observed by the court is, that the party prevailing in the action is prima facie entitled to costs. Van Couver v. Bliss, 11 Ves. 458; Sampson v. Brandwood, 1 Madd. 381, 394 ; Thrall v. Chittenden, 31 Yt. 183 ; Saunders v. Frost, 5 Pick. (Mass.) 260. And where the conduct of a party has been clearly wrongful or negligent, the rule will be strictly applied against him. Spencer v. Spencer, 11 Paige, 299. See Bundle v. Allison, 34 N. Y. (7 Tiff.) 180. Under this rule it is incumbent upon the unsuccessful party, in every case, to show special reasons why he should not pay costs. Van Couver v. Bliss, 11 Yes. 458. In this class of actions costs will not be allowed to either party where both are in fault (Saunders v. Frost, 5 Pick. [Mass.] 260. 274 ; Beacham v. Eckford, 2 Sandf. Ch. 116 ; Scott v. Thorp, 4 Edw. 1 ; Johnson v. Taber, 10 N. Y. [6 Seld.J 319) ; and the "same rule is observed where the court refuses protection to a plaintiff against a wrongful act of the defendant, on the ground that the plaintiff is defrauding the public in the matters concerning which the action is brought (Fetridge v. Wells, 4 Abb. 144; S. C, 13 How. 385) ; and so where both parties have acted foolishly, or have been equally imprudent, costs ar.e refused. Hitchcock v. Oiddings, 4 Price, 135. On the same principle, no costs are allowed to either party where each makes an unfounded claim against the other {Spencer v. Spencer, 11 Paige, 299 ; Caldwell v. Lieber, 7 id. 483 ; Brown v. Rickets, 4 Johns. Ch. 303 ; Brinckerhoof v. Lansing, id. 65 ; Righter v. Stall, 3 Sandf. Ch. 608 ; Ten Eyck v. Holmes, 3 id. 428. See Johnson v. Taber, 10 N. Y. [6 Seld. J 319) ; nor where the party, otherwise entitled to costs, sets up claims to COSTS ALLOWED IN JUDGMENTS. 473 Rules for allowing or refusing. which he is not entitled. Powell v. Murray, 10 Paige, 256. But if, in such case, the matter in controversy is a mere money claim, the party establishing his right to a substantial payment from the other should be allowed his costs, deducting suoh as were plainly incurred in resisting his unfounded claims. Hunn v. Norton, 1 Hopk. 344. In cases where the question raised between the parties is a fair one, and of such a difficult nature as to justify them in sub- mitting their controversy to the court, it is a uniform rule to leave each party to pay his own costs {Pattison v. Hull, 9 Cow. 747 ; White v. Foljambe, 11 Yes. 337 ; Bommett v. Bedford, 3 id. 149 ; Staines v. Morris, 1 Yes. & B. 8 ; Thorpe v. Freer, 4 Madd. 466) ; and especially is this the case where the unsuccess- ful party has been misled and encouraged by the dicta of a suc- cession of judges, or by an erroneous decision. Perry v. White- head, 6 Yes. 544. "When two or more actions are brought, where one would have been sufficient, the plaintiff will be allowed costs in one action only, though he succeed in all {Wilde v. Jenkins, 4 Paige, 481, 500. See Wendell v. Wendell, 3 Paige, 509^; but no costs will be allowed to a successful plaintiff in an action, where the relief sought could have been as well attained simply by an applica- tion on petition or affidavit {Be La Vergne v. Fvertson, 1 Paige, 181) ; and so costs were refused, where the matter in suit had previously been submitted to arbitration, and an award made which varied but little from" the judgment of the court, although the award had not been pleaded as a bar. Freeland v. Manna- han, Hopk. 276. No costs will be awarded against a defendant in an action for special relief, who is indifferent *between the real contending parties, and who shows himself ready to make pay- ment to whomsoever is entitled to it, and who has created no costs by his own act or defense. Eagleson v. Clark, 2 Abb. 324 ; S. C, 2 E. D. Smith, 644. Where an objection might be taken by demurrer, and demurrer is delayed until the trial on the merits, the additional costs ac- cruing from the delay will not be allowed to the party raising the demurrer. Shaw v. Coster, 8 Paige, 339 ; Murray v. Gra- ham, 6 id. 622 ; Hollingsworth v. Shakeshaft, 14 Beav. 492 ; Anonymous, 3 Madd. 62 n. See Sanders v. Benson, 4 Beav. 350. And where the trial is postponed for want of necessary parties to the action, if the defect of such parties was not set up Yol. III. — 60 474 COSTS ALLOWED IN" JUDGMENTS. Costs in creditor's action. by demurrer or answer, no costs are allowed on the postpone- ment. Court v. Jeffery, 1 Sim. & Stu. 105 ; Mitchell v. Bailey, 3 Madd. 61. See Shaver v. Brainard, 29 Barb. 25. Where a transaction is of such a suspicions nature as to reasonably call for an investigation, the party through whose fault it has as- sumed this suspicious character ought not to be allowed costs, even though the transaction is sustained. Fyler v. Fyler, 3 Beav. 550 ; Be Montmorency v. Devereaux, 7 Clark & Fin. 188 ; S. C, 2 Dr. & Wal. 410. The rule, that the party who fails in the action can never re- ceive costs (Thorpe v. Freer, 4 Mad. 466), admits of occasional exceptions. Thus, in a case where relief is granted against a hard bargain, as unconscionable, though not fraudulent, it is usually granted only upon payment of costs. Bowes v. Heaps, 3 Ves. & B. 117 ; Gowland v. Be Faria, 17 Yes. 20 ; Evans v. Peacock, 16 id. 512 ; Twisleton v. Griffith, 1 P. Wms. 310. In Lawley v. Hooper, 3 Atk. 278, which, however, was a case of this kind, no costs were allowed ; and in another case of a similar nature, costs were awarded to the plaintiff. Barnardiston v. Lingood, 2 Atk. 133. The successful party has also sometimes been charged with costs, when the proceedings of the opposite party have been induced by the statements of the former, and those statements have been erroneous. Fielder v. Higginson, 3 Ves. & B. 142. See Fenton v. Browne, 14 Yes. 144. Where a defendant, who is ready and willing to do justice, without suit being brought, is made a party without necessity, he should be allowed costs. Stafford v. Mott, 3 Paige, 100 ; Bennett v. Attkins, 1 Y_ a. & C. Exch. 247 ; Millington v. Fox, 3 Myl. & Cr. 338. c. Costs in creditor's action. In a creditor's action, if the object entirely fails, the plaintiff will be charged with costs. Raymond v. Redfield, 2 Edw. Ch. 196. And where a mere " fish T ing bill," not founded upon any specific allegation, or even upon any knowledge or belief that the defendant had any property, is brought and dismissed, the defendant's costs will not be set off against the judgment. Evans v. Vance, 2 Barb. 598. No costs should be allowed to a plaintiff, in an action of this nature, even when successful, if the purposes for which the action was brought could as well be effected by a resort to the ordinary proceedings supplementary to execution. COSTS ALLOWED IN" JUDGMENTS. 475 On demurrer — Divorce — Dower — Fraud. d. On demurrer. Unless there is something very special to take the case out of the general rule, costs should always be allowed, to the successful party on a demurrer. Uiica Cotton Manufacturing Co. v. The Supervisors of Oneida, 1 Barb. Ch. 432 ; Gregory v. Reeve, 5 Johns. Ch. 232. e. Divorce. Where the judgment in a divorce suit is in favor of the wife, she should be allowed her costsv Germond v. Ger- mond, 1 Paige, 83 ; Graves v. Graves, 2 id. 62. But, where the judgment is in favor of the husband, no costs will be allowed him, even in an action for divorce or adultery, if the wife has no separate property. Be Hose v. Be Rose, 1 Hopk. 100. Upon a recovery of judgment by the wife, the allowance to her for costs and expenses of the suit is not confined to the mere tax- able costs ; and the husband should be allowed only for the bal- ance of his advances, after deducting therefrom the necessary expenditures of the wife for counsel fees, etc., which are not ordinarily included in the taxed bill of costs. Kendall v. Ken- dall, 1 Barb. Ch. 610. See Griffin v. Griffin, 47 N. Y. (2 Sick.) 134. Where no answer is put in, the defendant will not be allowed to recover costs, notwithstanding the plaintiff fails to prove his case on a subsequent reference of the cause. Perry v. Perry, 2 Barb. Ch. 285. f. Bower. If, in an action for dower, the plaintiff succeeds, she is entitled to costs, provided she has demanded her dower of the defendant before suit, and has been refused it. Worgan v. Ryder, 1 Ves. & B. 20. But, if the demand has not been made, the rule is otherwise. Russell v. Austin, 1 Paige, 192 ; Kale v. James, 6 Johns. Ch. 258 ; Kazen v. Thuroer, 4 id. 604 ; Code, § 307. If there has been no vexation or undue hindrance on the part of the defendant to her claim, no costs will be allowed to the plaintiff in an action of this kind. Kale v. James, 6 Johns. Ch. 258. Where a widow is a party defendant, she should have her dower assigned to her, without costs against her. Kawley v. Bradford, 9 Paige, 200 ; Church v. Church, 3 Sandf. Ch. 434. g. Fraud. It is the rule to charge an unsuccessful party to an action, with hosts, where such party has acted fraudulently as regards the subject of the suit {Prentice v. Achorn, 2 Paige, 30 ; Bushnell v. Karford, 4 Johns. Ch. 301) ; but he is not so chargeable with costs, where the fraud with which he is charged 476 COSTS ALLOWED IN JUDGMENTS. Interpleader. is not actual, but merely constructive. Murray v. Ballon, 1 Johns. Ch. 566. Where a successful party in an action charges the opposite party with fraud, and such charge proves to be unfounded, costs will be denied him (Oullingworth v. Boyd, 3 Beav. 385. See Brinckerhoff v. Lansing, 4 Johns. Ch. 79 ; Hay v. VanHook, 9 How. 427) ; or, if even allowed his general costs, he will be re- quired to pay so much costs as were incurred by the opposite party in disproving the unfounded charges of fraud. Wright v. Howard, 1 Sim. & Stu. 190, 205. But, where the complaint contains charges of fraud, which are neither supported nor repelled by evidence on the trial, the above rule has no application. Staniland v. Willott, 3 Mac N. & Gr. 664 ; 12 Eng. Law & Eq. 42. Unfounded charges of fraud afford sufficient ground upon which to charge the unsuccessful party with costs (Bangley v. Fisher, 9 Beav. 90 ; Scott v. Dunbar, 1 Moll. 442 ; Shedden v. Patrick, 1 Macq. 535), unless the conduct of the opposite party was suspicious ; or he has been put to no trouble or expense in disproving them {Staniland v. Willott, 3 Mac N". & Gr. 664 ; Fyler v. Fyler, 3 Beav. 550 ; Be Montmorency v. Devereux, 7 Clark & Fin. 188 ; S. C, 2 Dr. & Wal. 410) ; or, unless in a case where the pleader has made such charges in good faith, and without adequate means of knowing their falsity. Wade v. Dick, 1 Ired. Eq. 313. h. Interpleader. Where an action of interpleader is properly brought, the plaintiff is entitled to have his costs allowed him out of the fund in court, almost as a matter of course. Atkinson v. Manks, 1 Cow. 691 ; Thomson v. Ebbets, 1 Hopk. 272 ; Can- field v. Sterling, id. 224 ; Aymer v. Qault, 2 Paige, 284. And not only so, but he is also entitled to costs incurred by him, in an action at law brought against him by the defendants, in rela- tion to the same subject-matter in dispute. Miller v. De Peyster, 1 Abb. 234 ; S. C, 4 Duer, 203; Richards v. Salter, 6 Johns. Ch. 445. Yol. 1, p. 176. Justice between the other parties, as regards costs, is finally done by compelling the party whose claim is adjudged ground- less, to pay those costs to the rightful claimant of the fund. TJiomson v. Ebbets, 1 Hopk. 272. See Badeau v. Rogers, 2 Paige, 209. The fact, that the party who was in the wrong is not COSTS ALLOWED IN JUDGMENTS. 477 Mortgage cases — Partition. within the jurisdiction of the court, does not change the rule. Canfleld v. Sterling, 1 Hopk. 224. Where an action of interpleader is unnecessarily brought, the plaintiff will not be allowed his costs. Bedell v. Hoffman, 2 Paige, 199 ; Badeau v. Rogers, id. 209. Thus, where an action is brought, the object of which could be wholly attained by ap- plication under section 122 of the Code, no costs will be allowed. See Bedeaii v. Rogers, 2 Paige, 209. i. Mortgage cases. In mortgage cases it is a general rule to allow the mortgagee his costs, whether as plaintiff in an action of foreclosure, or as a defendant in an action to redeem {Bene- dict v. Oilman, 4 Paige, 58 ; Bartle v. Wilkin, 8 Sim. 238 ; Detillin v. Gale, 7 Yes. 583 ; Wetherell v. Collins, 3 Madd. 255),; and this, without reference to his success in the suit {Slee v. Manhattan Co., 1 Paige, 48 ; Vroom v. Ditmas, 4 id. 526, 535): and notwithstanding he claims more than is due. Loftus v. Swift, 2 Sch. & Lef. 657. The same rule as to costs extends to all per- sons claiming under the mortgagee, and who are necessarily made parties to such action. Wetherell v. Collins, 3 Madd. 255 ; Coles v. Forrest, 10 Beav. 552. This rule, as to costs, as above laid down, is, however, subject to exceptions, for if the mortgagee has been guilty of any mis- conduct with reference to the action, or the subject-matter of it, costs will be denied him (Detillin v. Gale, 7 Ves. 583 ; Vroom v. Ditmas, 4 Paige, 526 ; Van Buren v. Olmstead, 5 id. 9) ; and so, if the mortgage has been actually satisfied before the action to redeem is commenced (Calkins v. Isoell, 20 N. Y. [6 Smith] 147) ; or, if a tender of the amount due has been made and refused. Pratt v. Stiles, 9 Abb. 150 ; S. C, 17 How. 211 ; Shut- tleworth v. Lowther, cited, 7 Ves. 586. See Roberts v. Williams, 4 Hare, 129. A tender, to be effective, however, must be of the whole sum due, and of the costs, if any have been incurred ; and if a tender is refused, and it afterward appears that the sum actually due exceeds the amount tendered, the defendant will not be exempted from costs. Taylor v. Hall, 2 G-will. 611 n. ; Wor- rall v. Nicholls, 3 id. 1302 ; 2 Dan. Ch. Pr. 1396. In a case where the mortgagee sets up an unconscientious defense, he is not only refused costs, but he must pay them to the opposite party. Slee v. Manhattan Co., 1 Paige, 48. j. Partition. In cases of actual partition of lands, the aggre- gate amount of costs of the several parties is to be apportioned 478 COSTS ALLOWED IN JUDGMENTS. Quieting title — Specific performance. and charged upon the parties to the proceedings, according to their respective rights and interests in the premises ; and the parties whose taxed bills exceed their ratable proportions of the whole costs are entitled to executions against those whose taxed bills are less. Phelps v. Green, 3 Johns. Ch. 302 ; Tidbits v. Tibbits, 7 Paige, 204 ; Matter of Hemiup, 3 id. 305. Where the plaintiff in an action for partition brings in-unneces- sary parties as defendants, he will be personally charged with the additional costs {Hamersley v. Hamersley, 7 N. Y. Leg. Obs. 127) ; but the rule is otherwise, if such unnecessary parties are brought in at the request of the other defendants. lb. Where additional costs are occasioned by the setting up of an unfounded claim, they must also be borne exclusively by the party in fault. Crandall v. Hoysradt, 1 Sandf. Ch. 40. Jc. Quieting title. Upon a judgment for the plaintiff in an action brought to quiet title, where the plaintiff had made improvements on land which he believed to be his, but the legal title to which was in the defendant, and the. defendant acquiesced in such improvements, costs are allowed to neither party. Be Remer v. Gantillon, 4 Johns. Ch. 85. See Stiles v. Cowper, 3 Atk. 692 ; Jackson v. Gator, 5 Yes. 685. I. Specific performance. In an action for the specific perform- ance of a contract, the successful plaintiff (vendee) is not entitled to costs, unless he has made a demand of performance and has tendered the purchase-money before bringing the action {Bruce v. Tilson, 25 N. Y. [11 Smith] 194 ; Dustin v. Newcomer, 8 Ohio, 49), and the purchase-money must be brought into court. Gallo- way v. Barr, 12 Ohio, 354. These conditions being performed, the vendee, if successful in the action, is entitled to costs. Hart v. Brand, 1 A. K. Marsh. 162. See Dyer v. Potter, 2 Johns. Ch. 152. A vendor who has failed to deliver an abstract of his title, or who has not cleared off the lien of a judgment, will not be allowed his costs in an action for a specific performance, although he succeed. Scott v. Thorp, 4 Edw. Ch. 1 ; Wynn v. Morgan, 7 Ves. 202 ; Winne v. Reynolds, 6 Paige, 407. And so if the abstract delivered be insufficient. Wilson v. Glapham, 1 Jac. & W. 36. And, in general, whenever there is a fair objection made to a title by a purchaser, although he fails in the objection, no costs wilk be allowed to the vendor. Aislabie v. Rice, 3 Mad. 256 ; Thdrpe v. Freer, 4 id. 466. But if a purchaser makes COSTS ALLOWED IN JUDGMENTS. 479 Specific performance — Trustees. frivolous objections to a title (lb.) ; or persists in objecting, after being notified of a prior decision in a different cause in favor of the same title against a similar objection, be will be charged with costs, on a judgment for a specific performance, in favor of the vendor. Biscoe v. Wilks, 3 Meriv. 456. The heirs of a party in an action for the specific performance of an agreement, where it appears that there was no improper behavior or. unjustifiable defense, should not be charged with costs. Dyer v. Potter, 2 Johns. Ch. 152. And where infant heirs, against whom a specific performance is sought, have derived no property from the vendor, except that which they are required to convey, and for which the purchase-money has been paid to the deceased vendor, the purchaser will be required to pay their costs. Sutphen v. Fowler, 9 Paige, 280. m. Trustees. It is a general principle, that a trustee has a right to the protection of the court in the execution of his trust ; and he is therefore entitled to his costs, whether as plaintiff or defendant in an action, unless the act required to be done involves him in no responsibility, or his motive is obviously vexatious. Curteis v. Candler, 6 Mad. 123 ; Poole v. Pass, 1 Beav. 600 ; Hosack v. Rogers, 9 Paige, 461. The general rule laid down is, that they will be allowed costs in settling their accounts so far as they are not in fault, but must pay costs as to such inquiries in the action as are made necessary by their breach of trust. Ray v. Van Hook, 9 How. 427 ; War- ing v. Crane, 2 Paige, 79 ; Duffy v. Duncan, 32 Barb. 587 ; S. C. aflirmed, 35 N. Y. (8 Tiff.) 187. Thus, a trustee will be charged with all the costs of a litiga- tion arising out of his gross negligence in the management of the accounts of the trust estate, or from his misapplication of the trust funds. Spencer v. Spencer, 11 Paige, 299. And if a trus- tee neglects his duty by omitting to invest money placed in his hands, he will be charged with the costs of the proceedings for its investment. Powell v. Murray, 10 Paige, 256. A trustee, seeking the direction of the court, in good faith, as to any matter involving him in responsibility in the execution of his trust, is always entitled to his costs. Curteis v. Candler, 6 Madd. 123. Thus, an executor, who is indebted to the estate, has a right to ask the aid and protection of the court in paying over the money due by him, and his costs will be allowed out of the fund. Decker v. Miller, 2 Paige, 149. But, where a trustee has 480 COSTS ALLOWED IN JUDGMENTS. Trustees — Wills. a private interest of his own, separate and independent from the trust, and obliges the cestui que trust to come into court, merely to have the point relating to his own private interest determined at the expense of the trust, such behavior will be regarded as vexatious on the part of the trustee, and he will be charged with the whole costs of the suit. Henley v. Philips, 2 Atk. 48 ; Gard- ner v. Gardner, 6 Paige, 455 ; Hunn v. Norton, 1 Hopk. 344. There are, also, other cases of misconduct which will render a trustee liable to the costs of the suit, as, where he persists in proceeding with the suit after it has become unnecessary (Camp- bell v. Campbell, 2 M. & C. 25) ; or if, being indebted to the trust estate, he resists the account and claims a balance (Eglin v. San- derson, 3 Griff. 434) ; or if, by chicanery, he keeps the cestui que trust from a true knowledge of the accounts, or even if he has kept the accounts in a very confused manner. Avery v. Osborne, Barnard, 349 ; Norbury v. CalbecJc, 2 Moll. 461. And so if a trustee, by his answer, sets up objections to his performance of his trust, which he fails to substantiate, he will be charged with the costs. Willis v. Hiscox, 4 M. & C. 197. See Low v. Carter, 1 Beav. 426. It is a general rule to allow a trustee his costs, Jiowever, in' all cases where he has not acted in bad faith or from interested mo- tives. Noble v. Meymott, 14 Beav. 471. n. Wills. Where, on account of the ambiguous terms of a will, it becomes necessary to take the directions of the court as to the construction of its provisions, the costs of the necessary parties to the litigation should be paid out of the estate. Rogers v. Ross, 4 Johns. Ch. 608 ; King v. Strong, 9 Paige, 94 ; Sawyer v. Baldwin, 20 Pick. 378 ; Miller v. Rowan, 5 Clark & Fin. 99 ; Pearson v. Pearson, 1 Sch. & Lef. 12 ; Commissioners of Char- ities v. Cotter, 1 Dr. & War. 498 ; Irving v. De Kay, 9 Paige, 521 ; Barrington v. Tristram, 6 Yes. 349 ; Brown v. Brown, 41 N. Y. (2 Hand) 507. See Smith v. Smith, 4 Paige, 271. This rule is especially applicable where an infant, an idiot or a lunatic is made a party to such an action. King v. Strong, 9 Paige, 94 ; Wood v. Vandenburg, 6 id. 277. The above rule, however, is not inflexible, and, where certain specified property is left to particular parties and the residue to others, the costs should be borne ratably by all the parties in proportion to the value of their several interests (Mitchell v. Blain, 5 Paige, 588) ; or, such costs may properly be charged to COSTS ALLOWED IN JUDGMENTS. 481 Municipal corporations — Rate and amount of costs — Before notice of trial. any fund created out of the estate for a purpose which is likely to fail, and which is tied up, subject to a contingency. King v. Strong, 9 Paige, 94. See Alsop v. Bell, 24 Beav. 451 ; Morrell v. Fisher, 4 De Q. & S. 422 ; Wilsonv. Beaton, 11 Beav. 492. In a suit between claimants under a will, and other claimants under an inconsistent deed, executed by the testator, costs are governed by the ordinary rule in adverse suits, and cannot be charged to the estate. Irwin v. Rogers, 12 Irish Eq. K. 159. o. Municipal corporations. No costs or disbursements can be recovered or inserted in any judgment against a municipal corporation, unless the claim upon which such judgment is founded was presented for payment to the chief fiscal officer of such corporation before the commencement of an action thereon. Laws of 1859, p. 576, ch. 262, § 2. It seems that the provisions of this act have no application to actions for unliquidated damages arising ex delicto; as, for example, to a claim for damages for property destroyed by a mob. McClure v. Board of Supervisors of Niagara County, 50 Barb. 594; S. C, 33 How. 202; 4 Abb, N. S. 202; 4 Trans. App. 275. See Hart v. The City of Brooklyn, 36 Barb. 226, where it is held that the statute applies as well to claims for dam- ages on account of the negligence or misconduct of the city authorities, as to demands upon contract. Section 8. Kate and amount of costs. at In general. In cases where" costs are allowed to either party, the amount so allowed is fixed by the provisions of the Code, section 307 ; and where the fee-bill is thus contained in the statute, the court can exercise no discretionary power as to the amount of the items specified, nor has it authority to add items for services not specified by the statute. Downing v. Marshall, 37 N. Y. (10 Tiff.) 380. o. Before notice of trial. The plaintiff's costs for all pro- ceedings before notice of trial, in actions where judgment for failure to answer can be taken without application to the court, and in which only one defendant is served with process, are $15; but in like actions, where judgment can only be taken on application to the court, his costs are $25. Code, § 307, subd. 1. As to which of these amounts the plaintiff is entitled to receive depends on whether the nature of the action is such that judg- ment, in case of failure to answer, might be had without appli- Vol. III. — 61 482 COSTS ALLOWED IN JUDGMENTS. Before notice of trial. cation to the court, and not on the question whether the pleadings render such application necessary. Van Valkenburg v. Van Schaick, 8 How. 271 ; Pardee v. ScTienck, 11 id. 500 ; overruling Lawrence v. Davis, 7 id. 354. See People v. Van Dusen, 3 id. 385 ; S. C, 2 Code K. 7; Candee v. Ogilvie, 5Duer, 658. Where more than one defendant is served with process, the plaintiff is entitled to the sum of $2 for each additional defend- ant so served, not exceeding ten ; and for each necessary defend- ant in excess of that number, served with process, the plaintiff is entitled to $l v . Code, § 307, subd. 1. The allowance for additional defendants, to which the plaintiff is entitled under this subdivision is limited to defendants neces- sarily and properly joined, and will not be made for parties whom he has no right to bring before the court. Case v. Price, 17 How. 348 ; S. C, 9 Abb. 111. The objection that some of the parties named as defendants are not necessary may be taken at any time, even on the adjustment of costs. Case v. Price, 17 How. 348; 9 Abb. 111. If the plaintiff's claim is just, and such as would entitle him to costs on judgment, his right to the costs specified is fixed by the commencement of the action, and must be included in any tender or offer of judgment made by the defendant. Rockefeller v. Weiderwax, 3 How. 382 ; S. C, 2 Code R. 3 ; Keese v. Wyman, 8 How. 88 ; Burnett v. Westfall, 15 id. 430 ; People v. Banker, 8 id. 258 ; nor will a settlement in fraud of such right avail to defeat it. Bogardus v. Bichtmeyer, 3 Abb. 179. The defendant's costs in an action before notice of trial are $10 (Code, § 307, subd. 2); and the right to this allowance accrues to the defendant immediately on action brought, without regard to his having or not having retained an attorney ; and the plaintiff will not be allowed to discontinue, without pay- ment to him of that amount. Foster v. Bowen, 1 Code R. N. S. 236. A defendant, however, who has made an offer, cannot tax this fee, even though the plaintiff obtain a less favorable judg- ment. Keese v. Wyman, 8 How. 88 ; Burnett v. Westfall, 15 id. 430. In case of the dismissal of a complaint, before notice of trial, for want of prosecution, the defendant is entitled only to costs of proceedings before notice of trial, with costs of the motion to dismiss. TillspaugTi v. Dick, 8 How. 33. COSTS ALLOWED IN JUDGMENTS. 483 After notice and before trial. c. After notice and before trial. For all proceedings after notice of and before trial, the plaintiff is allowed $15 (Code, § 307, subd. 1), and the defendant is likewise allowed the same amount. Code, § 307, subd. 2. Notwithstanding a cause has been noticed for trial more than once, or even if it is tried more than once, this amount of costs can only be once charged (Perry v. Livingston, 6 How. 404 ; Jackson v. McBurney, id. 408 ; Sipperly v. Warner, 9 id. 332 ; Jackett v. Judd, 18 id. 385. See Considerant v. Brisbane, 1 Bosw. 644 ; S. O, 7 Abb. 345, n) ; and the right to the allowance does not accrue until notice has been actually served, notwith- standing other proceedings may have been taken. Morrison v. Ide, 4 How. 304; S. C, 3 Code R. 27; Tillspaugh v. Dick, 8 How. 33. If, before the service of notice of an order allowing a party to discontinue on payment of costs, the adverse party has noticed the cause for trial, he is entitled, as a part of the costs on the discontinuance, to this fee. Hall v. Lindo, 8 Abb. 341. The fee is not taxable as against a defendant who has suffered a default, and against whom the case has not been noticed. Sluyter v. Smith, 2 Bosw. 673. Neither can it be taxed in an action in which no issue is raised, even though a notice of trial is served, for, where there is no issue to be tried, no notice of trial is necessary. Pardee v. Schenck, 11 How. 500. It is, however, taxable, as part of the costs of the hearing or of the term, when conditionally imposed upon either of the parties. Buckingham v. Minor, 18 How. 287 ; Dewey v. Stuart, 6 id. 465 ; Mitchell v. Westervelt, id. 265 ; affirmed, id. 311 ; Shanks v. Bae, 19 How. 540. It is not taxable on a motion for judgment on a frivolous de- murrer (Rochester City Bank v. Rapelje, 12 How. 26 ; Butchers and Drovers' Bank of Providence v. Jacobson, 22 id. 470), for the hearing of such a motion is not a trial. lb. In addition to this item of $15, either party is also allowed for attending upon and taking the deposition of a witness condition- ally, or attending to perpetuate his testimony, the fee of $10 ; and. the same amount for drawing interrogatories to annex to a commission for the taking of testimony, or for attending the ex- amination of a party before trial. Code, § 307, subd. 3. For the appointment of a guardian of an infant defendant, the plaintiff is allowed $10 ; but no more than that sum will be 484 COSTS ALLOWED IN JUDGMENTS. Trial feea. allowed for the appointment of guardians in any one action. lb. And to the plaintiff is also allowed the sum of $10, for procuring an order of injunction. lb. d. Trial fees. For the trial of an issue of law, either party is allowed $20, and for every trial of an issue of fact, $30. If the trial necessarily occupies more than two days, the sum of $10 additional is allowed. Code, § 307, subd. 4. Under this provision of the Code, a trial fee will be allowed to the successful party, in every case in which an issue has been joined and disposed of, by being regularly brought to trial, although, no testimony has been taken and no verdict rendered. Thus, for the purposes of costs, it is held to be equivalent to a trial where the plaintiff, in an action at issue, fails to appear when the cause is called upon the calendar, and an order is taken that the cause be dismissed. Bodd v. Curry,- 4 How. 123 ; S. C, 2 Code R. 69. And the defendant in such case will be entitled to the fee. lb. And so where the plaintiff is nonsuited on the trial {Allaire v. Lee, 4 Duer, 609 ; S. O, 1 Abb. 125) ; or where the complaint is dismissed as containing no cause of action. Shan- non v. Brower, 2 Abb. 377. Where questions of law, arising upon the trial or verdict, are reserved for further consideration, and subsequently disposed of at special term, the successful party is entitled to recover the fee prescribed for the trial of an issue of law ( Waterbury v. Wester- velt, 3 Sandf. 749 ; S. C, 1 Code E, N. S. 215), although the cause is not placed on the calendar, and is heard on the minutes of the clerk, without any case or bill of exceptions. lb. A trial fee cannot be taxed on a reference to take an account or to ascertain damages. Taalcs v. Schmidt, 25 How. 340. Nor against a defendant who has suffered judgment by default, though the cause may have been tried as to others. Sluyter v. Smith, 2 Bosw. 673. And this is so even where the summons, being served by publication, the plaintiff is required to prove his case {Chapman v. Lemon, 11 How. 235) ; or where the whole claim of the plaintiff is admitted by the defendant, who sets up a counter-claim which the plaintiff does not controvert. Pardee v. Schenck, 11 How. 500. Nor is a trial fee taxable upon a judgment, which is obtained by motion, as upon a dismissal of the complaint for want of prose- cution {Fillspaugh v. BicTc, 8 How. 33) ; or where judgment is rendered on the plaintiff's motion, for the frivolousness of the COSTS ALLOWED IN JUDGMENTS. 485 Trial fees. defendant's answer or demurrer. Rochester City Bank v. Rap- ety'e, 12 How. 26 ; Marquisee v. Brigham, id. 399 ; Butchers and Drovers' Bank of Providence v. Jacobson, 22 id. 470 ; Bell v. Noah, 24 id. 478 ; Pardee v. Schenck, 11 id. 500 ; Chapman v. Lemon, 11 id. 236 ; Roberts v. Clark, 10 id. 451 ; Gould v. Car- penter, 7 id. 97 ; Bernhard v. Kapp, 11 Abb. N. S. 342. But the following cases hold a contrary doctrine : Roberts v. Mor- rison, 7 How. 396 ; S. C, 11 N. Y. Leg. Obs. 60 ; Lawrence v. Davis, 7 How. 354 ; Pratt v. Allen, 19 id. 450. The fee prescribed by the Code, for every trial of an issue of fact, should be allowed for every time the cause is tried ; the labor of counsel being equally great whether the jury agree or not. Hamilton v. Butler, 30 How. 36 ; S. 0, 19 Abb. 446 ; 4 Rob. 654. See Ellsworth v. Gooding, 8 How. 1 ; Van Bchaick v. Winne, id. 5 ; Potsdam & Watertown R. R. Co. v. Jacobs, 10 id. 453. The discontinuance of the action by the plaintiff, after the cause has been called and moved for trial by the defendant, would clearly entitle the latter to charge a trial fee as part of his costs ; and so, where a defendant insists upon his defense until his cause is called, and moved for trial by the other party, he can- not then put an end to the action by payment, without being liable to pay a trial fee, if the plaintiff insists upon it. Jones v. Case, 38 How. 349. See, also, Moffatt v. Ford, 14 Barb. 577 ; Pomeroy v. Hulin, 7 How. 161. And where a juror is withdrawn by the plaintiff, in order that he may amend his complaint, the defendant is entitled to a trial fee, as well as his fee. for services after notice of trial and before trial. Dewey v. Stewart, 6 How. 465. See, also, Mitchell v. Westervelt, id. 265. So, where an action to compel an accounting has been commenced, it is proper where the matter was heard on the special term calendar, and an accounting ordered that a fee for the trial of an issue of law should be taxed. Wiggins v. Arkenburg, 4 Sandf. 688. The $10 additional costs allowed to the successful party, where the trial necessarily occupies more than two days, will be given in cases in which more than two days are so occupied, including the time spent in the preparation and submission of written points or arguments, provided that method of submission has been agreed upon. Mygatt v. Willcox, 35 How. 410. 486 COSTS ALLOWED IN JUDGMENTS. / Term fees. e. Term fees. For every circuit or term, not exceeding five circuits, and five special and five general terms, at which the cause is necessarily on the calendar and is not tried, or is post- poned by order of the court ; and for every term not exceeding ten excluding the term at which the cause is argued in the court of appeals, the sum of $10 is allowed to either party. Code, § 307, subd. 7. The right to term fees does not accrue to a party, until the cause is actually at issue, even though the date of the issue be fixed by stipulation of parties {Livingston v. The Yieille Mon- tagne Zinc Mining Company, 4 Duer, 681 ; S. C, 2 Abb. 255) ; and where there is no issue, of course no term fees can be charged at all {Tillspaugh v. Dick, 8 How. 33 ; Sluyter v. Smith, 2 Bosw. 673), even, if the cause be put on the calendar. Candee v. Ogilvie, 5 Duer, 658 ; Pardee v. SchencTc, 11 How. 500. Neither can they be charged for a term subsequent to a settle- ment {Latham v. Bliss, 13 How. 416) ; or a discontinuance of the cause {Drew v. Comstock, 17 How. 469) ; nor if the cause be placed irregularly on the calendar {Reformed Dutch Church v. Brown, 24 How. 89) ; as, for example, while a stay of proceed- ings is in effect {Shufelt v. Power, 13 How. 89) ; or, before cer- tain prescribed rules of the court have been complied with. Reformed Dutch Church v. Brown, 24 How. 89. The law makes no provision for more than five term fees in any action ; hence, an extra term fee, after the cause has been on the calendar for five terms, and after it has been once tried, although set down for another trial by the judge for the next term, cannot be allowed for such term. Hamilton v. Butler, 30 How. 36 ; S. C, 19 Abb. 446 ; 4 Rob. 654. So, where a cause is placed on the calendar of one term of the court, and is transferred by order of the court to another con- temporaneous term, no term fee is taxable for the former term {ComstocTc v. Halleck, 4 Sandf. 671), and where the cause is noticed for two different terms at the same time a term fee can- not be taxed for both, even though the fault lies with the unsuc- cessful party. Wilson v. Allen, 4 How. 54 ; S. C, 2 Code R.26. If the cause is put over the circuit, on payment of certain costs by the defendant, the plaintiff, on recovering a verdict, cannot be allowed a term fee for such term. Trustees of Penn Tan v. Tuell, 9 How. 400. Nor will term fees be allowed where the cause has been re- COSTS ALLOWED IN JUDGMENTS. 487 Term fees. served by consent and not by order of the court (Crawford v. Kelly, 10 Bosw. 697) ; nor where the cause is referred on motion, "without consent, at the circuit, and before it is reached on the calendar. Perry v. Livingston, 6 How. 404 ; Sipperly v. War- ner, 9 id. 333. The successful party in an action is not entitled to a term fee for any term at which the cause was postponed on his motion, or by consent at his request and for his benefit (Hanna v. Dexter, 15 Abb. 135 ; Hinman v. Bergen, 5 How. 245) ; nor for any term over which the cause is thrown, owing to his fault. Purdy v. Morgan, 2 How. 149 ; Whipple v. Williams, 4 id. 28 ; Hen- dricks v. Bouck, 2 Abb. 360 ; S. C, 4 E. D. Smith, 461. But if the cause is postponed by mutual consent, and for mutual con- venience, the term fee should be allowed to the prevailing party. Fisher v. Hunter, 15 How. 156 ; Sipperly v. Warner, 9 id. 332. See Benton v. Sheldon, 1 Code B. 134. A stay of proceedings is, in no proper sense, a postponement of the cause for. the purposes of costs. Shufelt v. Power, 13 How. 89. Neither is the withdrawal of a cause from a term at which it is called, and its submission on written arguments to another judge, a postponement in the sense contemplated by the provisions of section 307 of the Code. Hager v. Danforth, 8 How. 448. Where the plaintiff's attorney notified the defendant that the plaintiff had left the State, and that all further proceedings would be suspended in the action, and the defendant kept the cause on the calendar, it was held, that he was not entitled to tax subse- quent term fees, as the cause was unnecessarily on the calen- dar. His proper course would have been to move for a discon- tinuance or a dismissal of the complaint. Jennings v. Fay, 1 Code B. N. S. 231. And where stipulations to settle an action have been entered into, it is not proper to tax subsequent term fees. Latham v. Bliss, 13 How. 416 ; S. C, 6 Duer, 661. So, where the cause is noticed only by the plaintiff, and he ha3 the power to try, but fails to do so, he cannot recover the costs of the circuit. Whipple v. Williams, 4 How. 28. See Linacre v. Lush, 3 Wend. 305; Titus v. Bullen, 6 id. 562; Purdy v. Morgan, 2 How. 149 ; Slocum v. Lansing, 3 Denio, 259 ; Koon v. Thurman, 2 Hill, 357. Although by the provisions of the Code, section 307, term fees 488 COSTS ALLOWED JS JUDGMENTS. Term fees. are allowed for only five terms, yet the parties may waive the statutory limit, by a stipulation that the costs of additional terms shall abide the event, and thus may agree to tax a term fee for more than five terms. Emmons v. New York and Erie B. B. Co., 17 How. 490. Term fees are not allowed, either for subsequent terms after a cause has been referred {Anonymous, 1 Duer, 651), or the number of times that a cause is noticed before a referee. Anony- mous, 1 id. 596 ; S. C, 8 How. 82 ; overruling, Benton v. Bug- nall, 1 Code K. N. S. 229. It may be observed, as a general rule, that a term fee is given for every term where the cause is necessarily on the calendar, and not tried ; but when tried, then no term fee is given, but a trial fee in place of it. Place v. Butternut's Woolen and Cotton Manufacturing Co., 28 How. 184 ; affirmed, id. 187 (n). And a cause is " necessarily" on the calendar when being ready for trial, it is regularly put there by the party noticing it. Sipperly v. Warner, 9 How. 332 ; Perry v. Livingston, 6 id. 404. Where a cause has been set down for a particular day of the term, but is not reached on that or any following day of that term, the prevailing party is entitled to a term fee. Ormsoy v. Baocock, 4 Duer, 680 ; S. C, 2 Abb. 253. So, the prevailing party is entitled to his term fees where he attends the circuit prepared for trial, and the cause, through no default of his, is not tried. Fisher v. Hunter, 15 How. 156 ; Shufelt v. Power, 13 id. 89 ; Minturn v. Main, 2 Sandf. 737. The right to a term fee does not attach, unless the circuit has actually commenced. Thus, where the cause was noticed for trial at the circuit by both parties and put upon the calendar by the clerk, and, on Satur- day, previous to the commencement of the circuit on the follow- ing Monday, the plaintiff discontinued, — it was held, that the cause was not necessarily on the calendar, and that the defend- ant was not entitled to the circuit fee. Drew v. Comstock, 17 How. 469. Term fees are allowed in the city court of Brooklyn, subject to the same restrictions as in the circuit of the supreme court. Bird v. City of Brooklyn, 2 Abb. N. S. 132. Previous to the amendment of 1866, there was no limitation to the number of term fees in the court of appeals {Adams v. Per- kins, 25 How. 368 ; Hakes v. Peck, 30 How. 104) ; but, by an amendment of the above year, a term fee of $10 is allowed for COSTS ALLOWED IN JUDGMENTS. 489 Double and treble costa. every term, not exceeding ten, excluding the term at which the cause is argued in that court. Code, § 307, subd. 7. The representative of a party to an action, who dies while an appeal is pending in the court of appeals, is entitled to con- tinuous term fees after the death of such party, if the action and appeal are subsequently revived in his name. Thus, where the defendant died in February, and the action was revived in March following, the term fees in the court of appeals for the March and June terms were properly taxable, as one notice for the year in that court is sufficient. Carpentier v. Willett, 28 How. 376 ; S. C, 3 Rob. 700 ; S. C. affirmed, 31 N. Y. (4 Tiff.) 90. When a new trial shall be had, either party being successful, will be entitled to $25 for all proceedings after the granting of, and previous to the occurrence of, such new trial. Code, § 307, subd. 3. Section 9. Double and treble costs. The question as to whether the provisions of the Revised Statutes allowing double (2 R. S. 617, § 24 ; id. 461, § 26) and treble costs (1 R. S. 324, § 6) in cer- tain cases, have been repealed by the Code, has undergone con- siderable discussion ; but the point has been finally settled that the right to recover such costs in the cases specified still exists. Bortle v. Oilman, 18 N. Y. (4 Smith) 260 ; S. C, 17 How. 1 ; Stewart v. Metropolitan Board of Health, 33 id. 3 ; S. C. af- firmed, 34 id. 31 ; S. C, 3 Abb. N. S. 383 ; 50 Barb. 192 ; Stod- dard v. Clarke, 9 Abb. N. S. 310. See, also, Bradley v. Fay, 18 How. 481 ; People v. Colborne, 20 id. 378. The following decisions to the contrary have been overruled : HallenbecTc v. Miller, 4 How. 239 ; Van Rensselaer v. Kidd, 5 id. 242 ; Nestle v. Jones, 6 id. 172 ; Thompson v. StryTcer, 6 Abb. 381 ; Bagner v. Jones, 1 Code R. N. S. 234 ; Moore v. Wester- velt, 1 id. 131 ; S. O, 3 Sandf. 762. The statute giving double costs is, however, applicable only to actions and proceedings at law, and not to suits in equity, and, consequently, can have no application to actions of purely equitable cognizance under the Code. TaaJcs v. Schmidt, 25 How. 340 ; Cooper v. The Metropolitan Board of Health, 33 id. 5 ; Stewart v. The Metropolitan Board of Health, id. 3 ; S. C. affirmed, 34 id. 31 ; S. C, 3 Abb. N. S. 383 ; 50 Barb. 192 ; Dams v. Cooper, 50 Barb. 376. And the party entitled to such costs must apply to the court for them, the clerk not being authorized to Vol. III. — 62 490 COSTS ALLOWED IN JUDGMENTS. To officers. decide upon allowing or disallowing them on taxation. lb. But see, contra, WheelocJc v. Hotchkiss, 18 How. 468. b. To officers. By double costs are meant the ordinary taxed costs and one-half the amount in addition, and they are allowed upon a judgment rendered for the defendant upon verdict, de- murrer, nonsuit, discontinuance or otherwise, in the following actions : 1. In actions against public officers appointed under the au- thority of this State, or elected by the people ; or against any person specially appointed, according to law, to execute the duties of such officer ; for, or concerning any act done by such officer or person, by virtue of his office, or for or concerning the omission by such officer or person to do any act which it was his official duty to perform. 2. In actions against any other person, for doing any act by the commandment of such officers or persons, or in their aid or assistance, touching the duties of such office or appointment. 3. In actions against any person for taking any distress, mak- ing any sale, or doing any other act by authority of any statute of this State. .2 R. S. 617 (640), § 24. It has also been held that, where a defendant, sued as a public officer, obtains judgment upon a report of referees, he is entitled to double costs under the provisions of the statute, the same as if judgment had been rendered upon a verdict. Tillou v. Sparks, 9 How. 465. See Calkins v. Williams, 5 How. 393 ; S. C, 1 Code R. N. S. 53 ; Anonymous, 19 Wend. 225. But an action in the nature of a quo warranto is not one in which the defendant can recover double costs. People v. Adams, 9 Wend. 464. Neither are they allowed on any interlocutory proceeding, the costs of which are not part of the final costs. Mack v. McCullock, 2 How. 127 ; Saratoga Railroad Co. v. Mc- Coy, 7 id. 190 ; Waring v. Acker, 1 Hill, 673 ; Rider v. Hubbell, 4 Wend. 201. A defendant who would otherwise be entitled to double costs, loses his right to them by joining in one answer with another defendant who is not within the provisions of the statute. Brad- ley v. Fay, 18 How. 481. And an interested party acting in his own behalf, and not solely in aid of the officer, is not one of the persons for whose benefit the statute was intended, and is not entitled to double costs. lb. ; Merrill v. Near, 5 Wend. 237. It has been decided that justices of the peace (Row v. Sherwood, 6 COSTS ALLOWED IN JUDGMENTS. 491 How obtained — Treble coats — Extra allowance as of right. Johns. 109); constables (Jones v. Gray, 13 Wend. 280. See Piatt v. Sherry, 7 Wend. 236 ; Wales v. Hart, 2 Cow. 426) ; surrogates (Burhans v. BlancJiard, 1 Denio, 626) and school-tax collectors (Reynolds v. Moore, 9 Wend. 35), are included within the statute and entitled to the benefit of it. c. How obtained. Double costs can be allowed only on appli- "% J3 cation to the court, the clerk not being authorized to tax them as , / of course. Mack v. McOullock, 2 How. 127 ; Stewart v. The J*T Metropolitan Board of Health, 33 id. 3 ; S. C. affirmed, 34 id. 31 ; 3 Abb. N. S. 383 ; 50 Barb. 192. See WheelocJc v. Hotch- Mss, 18 How. 468, where a contrary rule is laid down. d. Treble costs. By the provisions of the Kevised Statutes (1 R. S. 324 [298], §§ 6, 7), officers of the militia, or persons act- ing under their command, are, in specified cases, entitled to treble costs ; and the words "treble costs," as used in the statute, are construed to mean, literally, thrice the amount of single costs, and not single costs with seventy-five per cent added. Walker v. Burnham, 7 How. 55. See Dunbar v. Hitchcock, 5 Taunt. 820 ; Shoemaker v. Nesbit, 2 Rawle, 201 ; Damson v. Schooley, 5 Halst. 145 ; but see Patchin v. Parkhurst, 9 Wend. 443. Treble costs can be obtained only on motion to the court. Anonymous, 4 Wend. 216. Where double or treble costs shall be awarded to any defend- ant, the same shall be deemed to belong to such defendant ; and the counselors, attorneys and other officers, who may have ren- dered any services in such action to such defendant, and the witnesses and jurors in such action, shall be entitled to receive and retain only the single costs allowed by law for their services respectively. 2 R. S. 617 (641), § 25 ; McFarland v. Crary, 6 Wend. 297; Moore v. Westervelt, 3 Sandf. 762; S. C., 1 Code R. N. S. 131. Section 10. Extra allowance as of right. a. In general. This subject is regulated by the provisions of the Code, sections 308 and 309, the first of which provides that, in addition to the allowances made in section 307, there shall be allowed to the plaintiff, upon the recovery of judgment by him, in any action for the partition of real property or for the fore- closure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per 492 COSTS ALLOWED IN JUDGMENTS. Extra allowance as of right. cent on the recovery, as prescribed in section 309, for any amount not exceeding $200 ; and an additional sum of two per cent for any additional amount not exceeding $1,000. And in the actions above named, if the same shall be settled before judgment there- in, like allowances upon the amount paid or secured upon such settlement at one-half the rates above specified. Section 309 provides that these rates shall be estimated upon the value of the property claimed or attached, or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due or unpaid upon a mortgage in an action for foreclosure ; and, whenever it shall be necessary to apply to the court for an order enforcing the payment of an in- stallment falling due, after judgment, in an action for a fore- closure, the plaintiff shall be entitled to the rate of allowance prescribed in section 308, but to no more in the aggregate than if the whole amount of the mortgage had been due when judg- ment was entered. Such amount of value must be determined by the court, or by the commissioners, in case of actual par- tition. In difficult or extraordinary cases, where a defense has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent, upon the amount of the recov- ery or claim or subject-matter involved. And in an action for the foreclosure of a mortgage, the court may make a like allowance, not exceeding two and one-half per cent. The right to the allowances under section 308 exists in a proper case, whether the action be legal or equitable in its nature, or partly legal and partly equitable {Davis v. Glean, 14 How. 310) ; but, in every instance, the action must be such as comes strictly within the description intended by the statute. Thus, an action to foreclose a mechanics' lien is held not to be, within the meaning of the above section, "the foreclosure of a mortgage," nor a proceeding "to compel the determination of claims to real property." Randolph v. Foster, 4 Abb. 262 ; S. C, 3 E. D. Smith, 648. Neither is an action to set aside a convey- ance of real estate (Bridges v. Miller, 6 Duer, 683) ; or an action to determine what land should be sold under an assignment (Powers v. Barr, 24 Barb. 142), for the " proceedings to compel COSTS ALLOWED IN JUDGMENTS. 493 Extra allowance as of right. the determination of claims to real estate," mentioned in section 308, are only those special proceedings authorized by the Revised Statutes, and referred to in section 449 of the Code. Bridges v. Miller, 2 Duer, 683. An action brought by the people, to test the title under royal grants, is, however, within this section (308) of the Code. People v. Clarke, 9 K Y. (5 Seld.) 349 ; affirming S. C, 11 Barb. 337. In reference to that clause of section 308 which provides for an extra allowance, in an action for an adjudication upon a writ- ten instrument, it must be observed, that it is not every such action the decision of which may incidentally involve the construction of a written agreement that is intended ; but an action brought by a plaintiff standing in the position of a trus- tee, to settle the construction of a will or other instrument creat- ing a trust. Gray v. RobjoTin, 1 Bosw. 618. The phrase, "adjudication upon a will or other instrument in writing," im- ports construction and determination upon the instrument ex- clusively, except in cases where evidence conducive to interpre- tation is admissible. The construction intended applies to cases in which a court of equity would have been resorted to before the Code, to expound, or to. expound and act upon a written instrument. Lewis v. Bryce (not reported), cited Voorh. Code (6th ed.), 439. An action to set aside an assignment as fraudulent by reason of provisions on its face, is, however, within the provisions of the Code ; but otherwise, if the assignment is attacked on grounds outside of itself. lb. Under section 308, in order to entitle a plaintiff to an extra allowance of costs, he must not only obtain the attachment, but it must also be sustained. Thus, where the plaintiff procures an attachment, which is shown by the defendant to have been set aside and vacated pending the action, the plaintiff is not entitled to the allowance. Iselin v. Graydon, 26 How. 95. In an action of this nature the percentage to which the plain- tiff is entitled must be computed on the amount of the verdict ; and if the value of the property attached can control the amount of the percentage in any case, it is only where the value of such property is less than the amount of the recovery, and in actions wherein the summons is not personally served, and the defendant does not appear. Brace v. Beatly, 5 Abb. 221. And it has been held, that the percentage should be estimated as above, although 494 COSTS ALLOWED IN JUDGMENTS. Extra allowance as of right — Discretionary allowance. no property has been levied upon under the attachment. Jack- son v. Figaniere, 15 How. 224. Allowances in addition to the taxable costs, under the provis- ions of the Code, cannot be made upon an order disposing of surplus funds arising on the foreclosure of a mortgage. New York Life Ins. & Trust Co. v. VanderMlt, 12 Abb. 458 ; and where an action is brought for the sole purpose of restraining another action, it is not proper to grant an extra allowance. Powers v. Wolcott, 12 How. 565 ; Sprong v. Snyder, 6 id. 11 ; S. O, 1 Code E. N. S. 178. Extra allowances can be given only on the recovery of a judg- ment ; and, if there is no recovery of a judgment, there can be no allowance. Bostwick v. Tioga R. R. Co., 17 How. 456. Upon the recovery of a judgment, however, it attaches as a fixed right of the plaintiff, and it is not necessary to move the court in order to obtain the extra percentage allowed. Hunt v. Middlebrook, 14 How. 300. In the actions mentioned in section 308, the court can exercise no discretion as to making any allowance other than that pre- scribed, and the allowance can be to the plaintiff only. Williams v. Hernon, 13 Abb. 297 ; McLees v. Avery, 4 How. 441 ; Hotal- ing v. Marsh, 14 Abb. 161 ; S. C, 13 id. 297, n.; Downing v. Marshall, 37 N. Y. (10 Tiff.) 380 ; Pinder v. Btoofhoff, 7 Abb. N. S. 433. Section 11. Discretionary allowance. a. In general. In difficult or extraordinary cases, where a defense has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allow- ance to any party, not exceeding five per cent upon the amount of the recovery or claim, or subject-matter involved. And, in an action for the foreclosure of a mortgage, the court may make a like allowance, not exceeding two and one -half per cent. Code, § 309. The provisions of this section do not affect the equitable power of the court to grant counsel fees out of a common fund belong- ing to the parties to the action, as a part of the relief which should be given on the final disposition of the cause. Hotaling v. Marsh, 14 Abb. 161. o. In difficult and extraordinary cases. To bring a case, in which an allowance is asked for, within the provisions of section COSTS ALLOWED IN JUDGMENTS. 495 In difficult and extraordinary cases. 309, it must be "difficult and extraordinary." The decisions widely differ as to the proper construction of these two terms, and several attempts have been made to define their precise meaning. See Fox v. Fox, 22 How. 453 ; Woods v. Illinois Central R. R. Co., 20 id. 285 ; Fox v. Gould, 5 id. 278 ; S. C, 3 Code R. 209 ; Gould v. Chapin, 4 How. 185 ; S. C, 2 Code R. 107. It was held by some of the earlier decisions that every litigated case was more or less difficult, and that some allowance should therefore be made in all cases. JYiver v. Rossman, 5 How. 153 ; Fowler v. Houston, 1 Code R. 51 ; Schwartz v. Poughkeepsie Ins. Co., 10 How. 93 ; Dyckman v. McDonald, 5 id. 121. A stricter construction was, however, given by other decisions. See Powers v. Wolcott, 12 How. 565 ; Sands v. Sands, 6 id. 453 ; Gould v. Chapin, 4 id. 185 ; S. C, 2 Code R. 107 ; Hall v. Pren- tice, 3 How. 328 ; S. C, 1 Code R. 81 ; 7 N. Y. Leg. Obs. 138 ; Howard v. Pome & Turin Plank Road Co., 4 How. 416 ; Dexter v. Gardner, 5 id. 417; S. C, 1 Code R. N. S. 80; and the ten- dency of later decisions is to favor the stricter construction. Fox v. Fox, 22 How. 453. No definite, reliable rule can be laid down that would serve as a guide in every case, and the subject to a great extent must be left to be determined by the peculiar circumstances of each case, and the peculiar views of the judge before whom the applica- tion is made as to the subject of costs. See Sackett v. Ball, 4 How. 71 ; S. C, 2 Code R.47 ; Foxy. Gould, 5 How. 278 ; S. C, 3 Code R. 209. Some of the circumstances operating in favor of or against granting an allowance will appear in the following cases. Thus, it has been held, that in an action in which an inquest is taken, for want of an affidavit of merits, but in which no peculiar diffi- culties are involved, no allowance should be granted (Hall v. Prentice, 3 How. 328) ; nor should an allowance be granted where the difficulties of the case arise from the improper con- duct of the successful party, by setting up excessive claims, etc. Fish v. Forrance, 5 How. 317 ; Sackett v. Ball, 4 id. 71 ; Sands v. Sands, 6 id. 453. In an action which was both difficult and extraordinary, brought against principal and surety upon a promissory note, and the surety alone defended and litigated in good faith, but failed in his defense, the plaintiff was refused an allowance 496 COSTS ALLOWED IN" JUDGMENTS. Where a trial has been had. {Bice v. Wright, 3 How. 405), and an allowance was refused where several defendants unnecessarily appear by different attor- neys, and each recovered a separate bill of costs. Tillman v. Powell, 13 How. 117 ; Matthewson v. Thompson, 9 id. 231. And so the allowance will be refused where actions have been need- lessly multiplied. SacJcett v. Ball, 4 How. 71. A long trial, extending over an unusual length of time, has been held sufficient to justify an extra allowance, on the ground of its being an "extraordinary case." Fort v. Gooding, 9 Barb. 388 ; Howard v. Rome & Turin R. R. Co., 4 How. 416. See Fox v. Fox, 22 How. 453. And where a case has been litigated on both sides with unusual pertinacity, necessarily occupying an unusually long period, and requiring the examination of a large number of witnesses, and difficult questions of law and evidence, and resulting in the recovery of a large amount in favor of the defendant, it is a case coming within the plain meaning and intent of section 309 as being both difficult and extraordinary, and an extra allowance will be granted. Fox v. Fox, 24 How. 385. c. When a trial has been had. Another condition for an allow- ance within the terms of section 309 of the Code is, that a trial has been had, and the prevailing party is then in a proper case, entitled to an additional allowance. Lowry v. Inman, 37 How. 286 ; S. C, 6 Abb. N. S. 394. And where the plaintiff voluntarily submits to a nonsuit, after evidence given, it cannot be objected that there has been no trial within this section (309). Allaire v. Lee, 4 Duer, 609 ; S. C, 1 Abb. 125 ; Danenhomr v. March, 4 id. 254; Woods v. Illinois Central R. R. Co., 20 How. 285. The dismissal of a complaint at the circuit, although taken by default, is held to be a trial, and in such case, if it be otherwise a proper one, an allowance may be granted. Moffatt v. Ford, 14 Barb. 577 ; Rogers v. Began, 4 Bosw. 669 ; 19 How. 119 ; 10 Abb. 313. But an assessment before a sheriff's jury, on a default to answer, is not a trial within the section (Randolph v. Foster, 3 E. D. Smith, 648 ; S. C, 4 Abb. 262) ; nor are proceedings for distribution of surplus moneys in foreclosure. New York Life Insurance and Trust Co. v. Vanderbilt, 12 Abb. 458. The statute in force, at the time the last verdict is rendered in the controversy, governs the allowance as well as the costs. Jones v. Underwood, 18 How. 532 ; JacJcettv. Judd, id. 385. See, also, COSTS ALLOWED IN JUDGMENTS. 497 Infants — Amount — Application for. Moore v. Westervelt, 14 id. 279 ; S. C, 6 Duer, 684 ; Cook v. New York Floating Dry Dock Co., 1 Hilt. 556. d. Infants. Except in a very special case, no extra allowance should be granted by the court, to be charged upon a fund be- longing to an infant. The Union Ins. Co. v. Van Rensselaer, 4 Paige, 85. e. Amount. The amount of an allowance, under section 309, is discretionary with the court, within the statutory limits therein prescribed ( Union Bank v. Mott, 13 Abb. 247) ; and, when the allowance is to the plaintiff, its amount must be regulated by the amount of his srecovery, and not by that of his claim. Wilkin- son v. Tiffany, 4 Abb: 98 ; Saratoga & Washington It. B. Co. v. McCoy, 9 How. 339. See Brace v. Beatty, 5 Abb. 221. But an allowance to the defendant may be computed on the amount claimed by the plaintiff ( Wilkinson v. Tiffany, 4 Abb. 98), un- less in an action for taking specific property, in which case the extra allowance to either party prevailing in the action, must be computed on the value of the property proved on the trial to have been taken, and not on the amount of the damages claimed by the plaintiff The Saratoga & Washington B. B. Co. v. Mc- Coy, 9How. 339. In actions for special relief, the value of the property directly affected by the result of the action affords the proper basis for computing the allowance ; as, for example, where an action is brought to obtain an injunction to restrain the defendants from discontinuing and removing a railroad. People v. Albany & Vermont Railroad Co., 16 Abb. 465. See Coleman v. Chauncey, 7 Rob. 578. Where the value of the subject-matter in controversy has not been duly ascertained, the objection should be raised upon the application for an allowance, and, if not then made, it will be regarded as waived. Dresser v. Jennings, 3 Abb. 240. Where the cause is twice tried, the allowance to the plaintiff is regulated by the amount of the recovery on the new trial alone. Sleight v. Hancox, 4 Abb. 245. An allowance granted for an amount in excess of the statutory percentage is irregular, and the order granting it may be re- viewed upon appeal. Wilkinson v. Tiffany, 4 Abb. 98. /. Application for. Application for an additional allowance can only be made to the court before which the trial is had or the judgment rendered. Sup. Ct., Rule 56. Vol. III.— 63 498 COSTS ALLOWED IN JUDGMENTS. Application for. Except in the city of New York, application should not be made to a judge out of court (Mann v. Tyler, 6 How. 235) ; and it should be made in the county where the judgment is rendered, unless some special reasons exist for making it elsewhere (Niver v. Rossman, 5 How. 153 ; S. C, 3 Code R. 192), and made dur- ing the term at which the trial was had, and to no other judge than the one who tried the cause. Sackett v. Ball, 4 How. 71 ; S. C, 2 Code R. 47 ; Flint v. Richardson, id. 80 ; Van Rensse- laer v. Kidd, 5 How. 242 ; Byckmnn v. McDonald, id. 121 ; Osborne v. Belts, 8 id. 31. If the cause is tried by a referee application for an allowance must be made to the court, as the referee has no power to. pass upon the question of right as to such allowance. Main v. Pope, 16 How. 271 ; Osborne v. Belts, 8 id. 31 ; Gould v. Chapin, 4 id. 185 ; S. C, 2 Code R. 107. And, in such case, the proper course is to obtain and present to the court the referee' s certificate of the facts which occurred at the trial. Fox v. Gould, 5 How. 278 ; Main v. Pope, 16 id. 271. The application may be made at the trial without notice, and it is not necessary that the party against whom it is made be present in court (Mitchell v. Hall, 7 How. 490 ; Van Rensselaer v. Kidd, 5 id. 242 ; S. C, 3 Code R. 224) ; but if the order is not then made, due notice must be given under section 311 of the Code. Mann v. Tyler, 6 How. 235 ; S. C, 1 Code R. N. S. 382 ; Saratoga & Washington R. R. Co. v. McCoy, 9 How. 339 ; Howe v. Muir, 3 Code R. 21 ; S. C, 4 How. 252. All litigation should be ended before application is made (Powers v. Wolcott, 12 How. 565) ; but an order granting or re- fusing an extra allowance is one necessarily made before judg- ment, and hence, after the entry of judgment, the application comes too late. Martin v. McCormick, 3 Sandf. 755 ; S. C, 1 Code R. N. S. 214 ; Clarice v. City of Rochester, 29 How. 97 ; S. C. affirmed, 34 N. Y. (7 Tiff.) 355 ; 30 How. 593. See, contra, Beats v. Benjamin, 29 How. 101 ; S. C. affirmed, id 573. Where a motion is made for an extra allowance, the grounds upon which the extra allowance is asked must be set forth in the. motion papers, so as to enable the court to review them on appeal ; and an order granted on improper papers will be reversed on ^appeal. Gori v. Smith, 3 Abb. N. S. 51 ; S. C, 6 Rob. 563. COSTS VALLOWED IN JUDGMENTS. 499 Notice of motion for extra allowance — Counsel feea. Notice of motion for extra allowance. {Title of cause.) Take notice, that (on the affidavit and certificate of Edwin Baylies, Esq., the referee herein, of which copies are herewith . served, and) on all the proceedings in this cause, the (plaintiff) will move the court, at a special term thereof to be held (by Mr. Justice, A. P.) at , on the day of , 18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, that an allowance be made to him in addition to the usual costs. {Date.) (Signature.) (Address.) Order at circuit for extra allowance. (Title of cause.) (At a circuit court, etc.) The plaintiff in this action having recovered the sum of dollars, and the same being a difficult and extraordinary case (or, the defense having been unfairly or unreasonably conducted), the plaintiff is allowed ten per cent on the amount of such recovery, by way of additional costs. Section 12. Counsel fees. a. In general. It is to be observed as a general rule, that the court has no power to authorize an allowance in the taxation of final costs, for counsel fees, nor indeed for any other extra ex- penses, except as already mentioned, even in actions for special relief. WMttimore v. WMttimore, 7 Paige, 38. But in taxing costs as between solicitor and client, courts of equity sometimes allow the party as many of the charges which he would have been compelled to pay his own solicitor, as fair justice to the other party will permit (2 Barb. Ch. Pr. 337), and this power was pos- sessed and exercised by the court of chancery previous to the adoption of the Code (Irving v. Be Kay, 9 Paige, 521, 533 ; Oott v. Cook, 7 id. 521 ; Mimise v. Cox, 5 Johns. Ch. 441, 451), and is held to be unaffected by any of the provisions of that instru- ment. Hotaling v. Marsh, 14 Abb. 161. Under the Code, however, there is no such thing as taxation of costs as between attorney and client, to be paid by one party to the other ; and the allowance in question, when made, is granted expressly under the name of counsel fees, and paid out of the fund in court. Downing v. Marshall, 37 N. Y. (10 Tiff.) 380 : Phelps v. Pond, cited in Hotaling v. Marsh, 14 Abb. 161 ; S. C. reported on another point, 23 N. Y. (9 Smith) 69. In both these cases the action was brought for an adjudication upon a 500 COSTS ALLOWED IN JUDGMENTS. Disbursements — Fees of officers. will, which, it will be observed, is expressly excluded from the provisions of section 309. In The New'YorJc Life Ins. & Trust Co. v. VanderMU, 12 Abb. 458, which was an application for the distribution of surplus funds, arising on foreclosure sales, a similar allowance was granted, to be paid out of the funds. This allowance, however, will not be made to the counsel of a party having only a contingent interest in the fund in litigation. Oott v. Cook, 7 Paige, 521. Neither can these charges be made a part of the judgment against a party to be collected from him personally. Whittimore v. Whitlimore, 7 Paige, 38. Section 13. Disbursements. a. In general. The successful party in an action is entitled to tax, as part of his costs, all his necessary disbursements (Code, § 311), and these are held to include all necessary expenses in- curred in prosecuting or defending the action. Finch v. Calvert, 13 How. 13. o. What are allowed. Disbursements are included in, and form part of the costs, and, hence, cannot be recovered where costs are not recovered. Peet v. Warth, 1 Bosw. 653. And necessary disbursements only are allowed (Goodyear v. Baird, 11 How. 377 ; Haynes v. Mosher, 15 id. 216) ; and they must have been actually paid, or liability for their payment actually incurred, for expenses incidental to the regular proceedings in the action. Haynes v. Mosher, 15 How. 216 ; Case v. Price, 9 Abb. Ill ; S. C, 17 How. 348. The expense incurred by a party in preparing for an action, or in ascertaining his rights for his own benefit, is not a disburse- ment in the action. Thus, in an action to recover the possession of lands, the surveyor' s fees in procuring the boundaries of the land is not a disbursement in the action which the prevailing party has a right to charge in his costs. Haynes v. Mosher, 15 How. 216. The only disbursements allowable in a civil action under the Code are those specified in section 311. Case v. Price, 9 Abb. Ill ; S. C, 17 How. 348 ; Hanel v. Baare, 9 Bosw. 682. c. Fees of officers. The fees of officers allowed by law are a part of the necessary disbursements (Code, § 311), and this is held to include commissioner' s fees on necessary affidavits (Be Witty. Swift, 3 How. 280 ; S. C, 6 N. Y. Leg. Obs. 314 ; 1 Code R. 24), except such as are made for a motion in the cause (Bur- nett v. Westfall, 15 How. 430) ; in which case no costs are allowed, and, of course, no disbursements. lb. COSTS ALLOWED IN JUDGMENTS. 501 Referee's, stenographer's and witness' fees. Clerk's and sheriff's fees are, also, properly taxable as dis- bursements {Benedict v. Warriner, 14 How. 568 ; Case v. Price, 9 Abb. Ill; S. O, 17 How. 348; DeWittv. Swift, 3 id. 280; S. C, 6 BT. Y. Leg. Obs. 314; 1 Code R. 24), where they are actually charged by such officers (Case v. Price, 9 Abb. Ill ; S. C, 17 How, 348) ; but where the services for which fees are claimed, are performed by any other person than the officer to whom regular fees are allowed by law, a reasonable compensa- tion only can be taxed for such services. lb. Fees for copies of papers, and for necessary searches in the clerk's office, and the sheriff's fee of fifty cents for every term during which a cause is on the circuit calendar for trial, are properly taxable. Case v. Price, 9 Abb. Ill ; S. C, 17 How. 348. And so is the expense of procuring a certified copy of an order of reference. Toll v. Thomas, 15 How. 315. d. Referees fees. The fees of referees are properly taxable as disbursements (Code, § 311) ; but in the absence of a written agreement of the parties to the contrary, the allowance cannot exceed the rate fixed by law, and a referee is not entitled to charge for services of a third person before whom the parties agree to proceed with the reference, in the referee' s absence. Shultz v. Whitney, 17 How. 471 ; S. C, 9 Abb. 71. e. Stenographer's fees. Fees for stenographer's notes are properly taxable in the first judicial district. Code, § 256 ; Sebley v. Nichols, 32 How. 182 ; Reynolds v. Mayor, etc., of New York, 14 Abb. 176, n. 1. See, contra, G-ilman v. Oliver, 14 Abb. 174 ; S. C, 9 Bosw. 589 ; Arnoux v. Phelan, 21 How. 88. f. Witness" 1 fees. The fees of witnesses are also taxable. Code, § 311. But where no subpoena has been used to procure the attendance of witnesses, a party seeking to charge his adver- sary with witness' fees must show that they were his witnesses in the action, and that they attended at his request or by agree- ment. Wheeler v. Lozee, 12 How. 446 ; TaaTcs v. Schmidt, 25 id. 340 ; Haynes v. Mosher, 15 id. 216. And in order that their fees may be taxed, the witnesses must be material and necessary at the time they are subpoenaed. Wheeler v. Lozee, 12 How. 446 ; Dean v. Williams, 6 Hill, 376 ; Irwin v. Deyo, 2 Wend. 285 ; Pike v. Nasli, 16 How. 63. Thus, a party cannot tax fees for subpoenaing witnesses to attend at a time when he knew they could not be examined. Crippen v- Brown, 11 Paige, 628. 502 COSTS ALLOWED IN JUDGMENTS. Witness' fees. And so a party who subpoenas a witness to attend the trial of a cause, and permits him to depart before the trial is brought on, cannot tax his fees (Dowling v. Bush, 6 How. 410) ; nor if the witnesses are summoned too late for the trial. See Clark v. Staring, 4 How. 243. But where a party duly subpoenas his witnesses to attend the trial of a cause and pays them their legal fees, he is entitled, if he succeeds in the action, to have such fees taxed in the costs, although the witnesses, after going a part of the distance, returned home on being informed that the court would not be held. Roth v. Meads, 20 How. 287. So, where a witness resides at a distance from the court, his fees for attendance on Sunday may be taxed, as well as those for his attendance on other days. Muscott v. Runge, 27 How. 85. See Wheeler v. Ruckman, 5 Bob. 702. In an action for slander where forty witnesses were summoned, but two only were sworn to prove the good character of the plaintiff, the court directed that the fees of ten witnesses only should be taxed. Irwin v. Deyo, 2 Wend. 285. But where the defendant subpoenaed seventeen witnesses upon an issue which had been previously found against him on a former trial of another action presenting the' same issue, when he had examined twelve, but the court allowed him to examine five of the seven- teen only, it was held, nevertheless, that he should be allowed to tax fees for all the seventeen. Lowerre v. Vail, 5 Abb. 227. Where a reference is had, and the defendants appear by two different attorneys, two bills of costs are properly allowed, but only one set of witness' fees can be taxed for the same witness, unless affidavits 'are produced showing that the witness was sub- poenaed or requested to attend by both parties. The party who subpoenaed the witness, or made the request, should make the affidavit. Taaks v. Schmidt, 25 How. 340. And where there are several causes to be tried at the same time and between the same parties, the fees of a witness required in the several cases may be separately taxed in all, as he need not testify in any one for which he was not paid. Vence v. Speir, 18 How. 168 ; Hides v. Brennan, 10 Abb. 304 ; Willink v. Reekie, 19 Wend. 82. See Wilder v. Wheeler, 1 How. 136. No counsel or attorney in any cause shall be allowed any fee for attending as a witness in such cause. 2 B. S. 651 (671), § 15. But if counsel attend in good faith as a witness, and is retained COSTS ALLOWED IN JUDGMENTS. 503 Party as witness — Traveling fees. as counsel after he arrives at the circuit, his fees are taxable. Reynolds v. Warner, 7 Hill, 144. And an attorney may charge a per diem allowance for the day on which he was sworn ; but not for the mileage. Taaks v. Schmidt, 25 How. 340. In dis- tricts where day calendars are regularly made up, the party cannot charge for attendance of his witnesses unless the cause was upon the day calendar, except where there was reasonable expectation that the cause would have been reached and placed thereon, and the witnesses resided at a distance from the place of trial. Ehle v. Bingham, 4 Hill, 595 ; Wheeler v. Ruclcman, 5 Hob. 702 ; Curtis v. Dutton, 4 Sandf. 719. g. Party as witness. A party to an action is not entitled to tax witness' fees and expenses for his own attendance as a wit- ness, even though he makes affidavit that he attended the trial for the sole purpose of being such witness. Steere v. Miller, 30 How. 7 ; affirming S. C, 28 id. 266 ; Cornell v. Potter, 15 id. 278 ; Case v. Price, 17 id. 348 ; S. O, 9 Abb. Ill ; Christy v. Christy, 6 Paige, 170 ; Perry v. Livingstone, 6 How. 404 ; Logan v. Thomas, 11 id. 160. In the following cases the rule was held to be otherwise ; Rogers v. Chamberlain, 7 Abb. 452 ; Querissle v. Hilliard, 3 id. 31 ; Logan v. Brooks, 8 id. 127 ; S. O, 17 How 29 ; Hanna v. Dexter, 15 Abb. 135 ; Taalcs v. Schmidt, 25 How. 340 ; Bronner v. Frauenthal, 20 id. 355 ; S. C, 12 Abb. 183 ; Howes v. Barber, 10 Eng. Law & Ec[. 465 ; Van Busen v. Bis- sell, 29 How. 481. Where a party is made a witness by his adversary, he is as much entitled to witness' fees as any third person, and, of course, such fees are taxable {Hewlett v. Brown, 7 Abb. 74 ; S. C, 1 Bosw. 655) and so, doubtless, are fees actually and necessarily paid to a co-defendant. Walker v. Russell, 7 Abb. 452, note ; S. C, 16 How. 91. See, also, Loganv. Thomas, 11 How. 160. h. Traveling fees. As a general rule the traveling fees of wit- nesses residing but a short distance from the court-house, charged as having been subpoenaed and traveled from a distant county, will not be allowed. If they were temporarily called away from home they should have been subpoenaed in due time. Mead v. Mallory, 27 How. 32. But if the party, without his fault or negligence, was compelled to subpoena the witness at his tem- porary residence or place of business, and such witness attends the court pursuant thereto, and returns, the rule is otherwise. Claries v. Staring, 4 How. 243. So where the witness was sub- 504 COSTS ALLOWED IN JUDGMENTS. Commission — Other disbursements. poenaed while away from home and he insisted upon his fee from his residence, which the party paid, it was held that the whole amount was taxable. Pike v. Nash, 16 How. 53. Traveling fees of foreign or other witnesses subpoenaed at the place of trial are not taxable. Dowling v. Bush, 6 How. 410 ; Peck v. Wood, 2 id. 209 ; Wheeler v. Lozee, 12 id. 446. Unless they attended as witnesses only, pursuant to request, and were subpoenaed after their arrival. lb. i. Commission. A reasonable compensation paid to commis- sioners in taking depositions is taxable, as a disbursement. Code, § 311. See Pinch v. Calvert, 13 How. 13. And so are the fees of a witness taken under a commission. But if a party desires to tax the fees of a witness residing in another State, and examined there on commission, at a greater rate than that allowed by the laws of our State, he must show that such rate was pro- per in the State where the examination was had, and that the attendance of the witness could not be procured without pay- ment accordingly. Dunham v. Sherman, 11 Abb. 152 ; S. C., 19 How. 572. The fees of counsel employed abroad on the exe- cution of the commission cannot be charged in the taxation. lb. j. Other disbursements. Under this head may be included the expense of printing the papers for any hearing, when required by a rule of the court. Code, § 311. But all charges for useless and prolix matter in such papers will be disallowed on taxation. See Rogers v. Rogers, 2 Paige, 458 ; Crippen v. Brown, 11 id. 628 ; Waller v. Harris, 7 id. 479. In case of a reference, expenses paid for room rent, fire and lights, necessary for the purposes of the reference, are held to be properly taxable. Bailey v. Ranford, 10 Wend. 622. And it is proper to allow a disbursement, shown to be fair and neces- sary, for the service of summons and complaint, or for the ser- vice of a notice of the object of the action. Case v'. Price, 9 Abb. Ill ; S. C, 17 How. 348 ; Benedict v. Warriner, 14 id. 568 ; Gal- lagher v. Egan, 2 Sandf. 742. And so, even where the service is made by a person other than the sheriff, but in such case the disbursement should not exceed the limit of the sheriff's fee for similar service. Case v. Price, 9 Abb. Ill ; S. C. 17 How. 348. Expenses incurred for the service of subpoenas under the Code are not taxable ; such service being one which a party may always perform himself. Barnett v. West/all, 15 How. 430 ; Wheeler v. Lozee, 12 id. 446. CHAPTER III. COSTS ON MOTIONS AND SPECIAL APPLICATIONS. ARTICLE I. COSTS ON MOTIONS. Section 1. In general ; when granted or refused. a. In general. The Code provides (§ 315) that costs may be allowed on a motion, in the discretion of the court or judge, not exceeding $10, and may be absolute, or directed to abide the event of the action. The cases generally, in which the provisions of this section of the Code are applicable, are — where applications are made to the court, or a judge, for any directions made or entered in writing, and not included in a judgment (Code, §§ 400, 401), excepting applications for judgment, upon special verdict, or upon verdict subject to the opinion of the court, or for a new trial on a case made, or where exceptions are ordered to be heard in the first instance at a general term — under the provisions of section 265. Costs, in these exceptional cases, are especially provided for by section 307, subdivision 5, of the Code. A motion to dismiss a complaint for want of diligence in the prosecution of the action is within the provisions of section 315 1 {Tillspaugh v. Dick, 8 How. 33) ; and, so is a motion for judg- ment on account of the frivolousness of the pleading. Gould v. Carpenter, 7 How. 97 ; Roberts v. Clark, 10 id. 451 ; Marquisee v. Brigham, 12 id. 399 ; Rochester City Bank v. Rapelje, id. 26 ; Butchers & Drovers' Bank v. Jacobson, 22 id. 470 ; Bell v. Noah, 24 id. 478 ; Small v. Ludlow, 1 Hilt. 307. See, contra, Pratt v. Allen, 19 How. 450 ; Roberts v. Morrison, 7 id. 396 ; Lawrence v. Davis, id. 354. The costs of appeals from orders granted on motions are also governed by section 315 {Savage v. Darrow, 4 How. 74 ; S. C, 2 Code R. 57) ; but the costs of an appeal from an order of judg- ment upon a demurrer made after a regular trial, are not within the provisions of this section. Phipps v. Van Cott, 15 How. 110. The court has no power to award costs in anticipation of a Vol. III. — 64 / 506 COSTS ON MOTIONS. Costs in the cause — When allowed — If not asked for. motion, which has not yet been made. Bowne v. Anthony, 13 How. 301. b. Costs in the cause. In some cases, the costs of a motion are allowed as ' ' costs in the cause,' ' that is, they are to be added to the costs allowed on the recovery of judgment, if the party to whom they are granted recovers final costs, or deducted from such costs, if the opposite party is finally successful. Bulkeley v. Keteltas, 2 Sandf. 735. In other cases, the costs of a motion are " directed to abide the event of the action" (Code, § 315), that is, they are to be allowed as costs in the cause, to the party finally prevailing in the action ; unless they are given only to a specified party, in which case, if he fails in the action, no one gets them. c. When allowed. The costs of a motion rest in the discre- tion of the judge by whom the motion is heard, and from his decision there is no appeal (Bennison v. Bennison, 9 How. 246 ; BicJcsonv. McElwain, 7 id. 138), unless this discretion is illegally exercised, or in a plain case of inadvertence or mistake. Bowne v. Anthony, 13 How. 301 ; Leighton v. Wood, 17 Abb. 177. Notwithstanding this discretionary power of the judge rela- tive to costs of motions, there are certain rules by which the courts are governed in the exercise of this discretion, and which it will be proper to notice. d. Ex parte motions. It is a well-settled rule that no costs can be allowed on ex parte motions, in which class are included all motions made in the course of an action, in which the defend- ant has not appeared. Bowne v. Anthony, 13 How. 301. See Motions, Orders, etc. e. If not aslted for. Neither will the costs of a motion be allowed, where none are claimed, either in the notice of the motion or upon the argument. Town of Guilford v. Cornell, 4 Abb. 220, 225. Thus, as a general rule, costs will not be allowed on granting a motion by default, unless asked for in the notice of motion, or the order to show cause, even though the notice con- tains a general clause asking "for other and further relief." Northrop v. Van Busen, 5 How. 134; S. C, 3 Code R. 140; Crippen v. Ingersoll, 10 Wend. 603 ; Mann v. King, 18 Ves. 297 ; Banta v. Marcellus, 2 Barb. 373. But, if the parties appear and litigate the motion upon the merits, costs may be allowed in the discretion of the court, whether asked for in the notice of motion, or order to show cause, COSTS ON MOTIONS. 507 Successful party — Too much asked — Needless opposition. or not. Banta v. Marcellus, 2 Barb. 373 ; Powell v. Cocker ell, 4 Hare, 557, 572 ; Butler v. Gardener, 12 Beav. 526 ; Clark v. Jaques, 11 id. 623. See, contra, Saratoga and Washington JR. H. Co. v. McCoy, 9 How. 339. f. Successful party. Costs are allowed, as a general rule, to the party succeeding on the motion, unless he' asks for a mere favor, in which case he is not entitled to costs {Jones v. United States Slate Co., 16 How. 129), and if he is himself in fault, costs will usually be awarded against him. Leighton v. Wood, 17 Abb. 177. The moving party is entitled to his costs of motion, notwith- standing the error or irregularity upon which the motion was based has been corrected by the adverse party after the service of the notice of motion. Hill v. Smith, 2 How. 242. So where the moving party has been induced to make an application to the court, by the statements of the opposite party, he will be allowed his costs, although the motion be denied. Leonard v. Manard, 1 Hall, 200. g. Too much asked. Where a party in his notice of motion asks for more than he is entitled to, he should be allowed no costs, even though his motion be partially granted. Bates v. Loomis, 5 Wend. 78 ; Whipple v. Williams, 4 How. 28 ; McKenzie v. Hack- staff, 2 E. D. Smith, 75 ; Steam Navigation Co. v. Weed, 8 How. 49 ; Corbin v. George, 2 Abb. 465 ; Penfleldv. White, 8 How. 87. And although he waives the excessive demands on the hearing. Bates v. Loomis, 5 Wend. 78. So where the notice of motion asks, in the alternative, for two different modes of relief, one of which the party is not entitled to, costs of opposing the motion will be allowed to the opposite party. Smith v. Jones, 2 Code E. 33. See Sturch v. Young, 5 Beav. 557. And if costs are asked for in any cases where costs are never granted by the court, the moving party, though suc- cessful, will be charged with them. Phelps v. Wasson, 2 How. 126. So where costs would not otherwise be imposed on deny- ing a motion, a party will be charged with them if, in his notice' of motion, he asks costs against his opponent. Weeks v. South- wick, 12 How. 170 ; Batter shall v. Davis, 23 id. 383. h. Needless opposition. A party making a needless opposi- tion to a motion will be charged with costs in cases where other- wise he would not be, and so in an ordinary case, where a motion would be granted only upon payment of costs, it will be granted 508 COSTS OK" MOTION'S. Unnecessary motions — New questions. without costs if needlessly and unfairly opposed by. the opposite party. May v. May, 11 Paige, 201 ; Bell v. Judson, 2 How. 42. See Kane v. Van Yrariken, 5 Paige, 62. i. Unnecessary motions. Where a motion is unnecessarily made for no other purpose than that of merely obtaining costs, they will be refused {Stiles v. Fisher, 3 How. 52 ; Kane v. Van Vranken, 5 Paige, 62). and where a motion for relief is made in a proper case, and after the service of the motion papers, but where the opposite party consents to its being granted on fair terms, costs of the motion will be withheld. Stiles v. Fisher, 3 How. 52. Where two or more separate motions are made upon substan- tially the same facts, which might have been presented in a single set of papers, the costs of one motion only will be allowed, the other motions being regarded as unnecessary. McCoun v. N. Y. Central & Hudson River JR. B., 50 1ST. Y. (5 Sick.) 176, 181 ; Cort- land Co. Mut. Ins. Co. v. Lathrop, 2 How. 146 ; Post v. Jenkins, 2 id. 33 ; Homfager v. Hornfager, 6 id. 13. Even though made in different causes brought by the same plaintiff against different defendants, and on different sets of papers. Cortland Co. Mut. Ins. Co. v. Lathrop, 2 How. 146. Where one set of papers only is used, the rule is, of course, the same {Jackson v. Keller, 18 Johns. 310 ; Schermerhorn v. Noble, 1 Denio, 682 ; Jerome v. Boeram, 1 Wend. 293), and if, in such case, the motions are denied, single costs only will be allowed. Jackson v. Garnsey, 3 Cow. 385. In one case where two motions were made for relief which could have been obtained by one, the motions were granted on payment of the costs of opposing them, as a penalty for unnecessary proceedings. Mitchell v. Westervelt, 6 How. 265 ; S. C. affirmed, id. 311. j. New questions. Where the questions raised by the motion are new and unsettled, and of such a difficult nature as to justify their submission for the decision of the court, costs are not usually allowed. Morrison v. Ide, 4 How. 304 ; S. C, 3 Code R. 27 ; Dollner v. Gibson, id. 153 ; S. C, 9 N". Y. Leg. Obs. 77; Mattice v. Gifford, 16 Abb. 246 ; Northrop v. Van Dusen, 5 How. 134 ; S. C, 3 Code R. 140 ; Buckman v. Carnley, 9 How. 180 ; Estus v. Baldwin, 9 id. 80 ; Ostrom v. Bixby, id. 57 ; Giraudv. Beach, 4E. D. Smith, 27: S. 0, 10 How. 369 ; Purchase v. Jackson, Mid. 230 ; S. C, 1 Hilt. 357 ; My v. Holton, 15 JST. Y. (1 Smith) 595, 600 ; COSTS ON MOTIONS. 509 Defective notice — Setting aside irregularities — Motion for discovery. Bolles v. Buff, 55 Barb. 580 ; S. C, 7 Abb. N. S. 385 ; 38 How. 504. Neither will costs be allowed where the failing party has been misled by conflicting decisions (Tindall v. Jones, 19 How. 469 ; S. 0., 11 Abb. 258. See Qirdud v. Beach, 10 How. 369 ; S. C, 4 E. D. Smith, 27 ; Nolle v. Trotter, 4 How. 322 ; S. C, 3 Code R. 35) ; or by the dictum of a judge on a new question (Silli- man v. Eddy, 8 How. 122) ; or by a decision defectively reported {KitcMng v. DieM, 40 Barb. 433) ; or where he is induced to make the motion by the language of the opinion pronounced by the court which denies it. Teaz v. Chrystie, 2 E. D. Smith, 635 ; 2 Abb. 259. k. Defective notice. The successful party is entitled to costs, as well when the motion is denied on account of defects in the motion, as when the decision is made upon the merits. Donald- son v. Jackson, 9 Wend. 450. But in the former case, full costs should not be awarded. Anonymous, 18 Wend. 578. I. Setting aside irregularities. As a general rule, costs will be allowed to the moving party on a motion to set aside irregu- lar proceedings, if the motion is granted {Kellogg v. Klock, 2 Code K. 28. See Beach v. Southworih, 6 Barb. 173 ; Fair- weather v. Satterly, 7 Rob. 546 ; McMurray v. McMurray, 9 Abb. N. S. 315 ; S. C, 41 How. 41 ; 60 Barb. 117), subject, how- ever, to the foregoing qualifications. The same rule applies to the costs of a motion to vacate an ex parte order improperly obtained. Dows v. Parker, 4 N. Y. Leg. Obs. 384 ; Opdyke v. Marble, 44 Barb. 64 ; S. C, 18 Abb. 266. m. Application for allowance. On an application for a dis- cretionary allowance in addition to costs, it seems that neither party is entitled to costs of the motion. Ten Broeck v. The Hud- son River R. R. Co., 7 How. 137. n. Motion for discovery. On a motion for a discovery and inspection of books and papers, the rule is to allow costs to the moving party, where he makes an application therefor, to his opponent, before coming into court, and is refused (Townsend v. Lawrence, 9 Wend. 458), otherwise his motion should be granted only upon his paying the costs. Deas v. JSarvie, 2 Barb. Ch. 448, 456 ; King v. Clark, 3 Paige, 76 ; Burnett v. San- ders, 4 Johns. Ch. 503 ; Weymouth v. Boyer, 1 Yes. Jr. 416, 423. o. Motion for consolidation. Costs should be allowed to the defendant on a motion for the consolidation of actions against 510 COSTS ON MOTIONS. Motion to change place of trial — Order to fix costs. him, in cases where the several actions were commenced at the same time or under circumstances evincing a disposition to make the proceedings burdensome to him {Dunning v. Bank of Auburn, 19 Wend. 23), unless a satisfactory reason is shown for so doing. Bank of the United States v. Strong, 9 Wend. 451. And, in other cases, if the plaintiff, without reasonable grounds of objection, refuse to consolidate on request, he will be required to pay the costs of the motion. Dunning v. Bank of Auburn, 19 Wend. 23. These circumstances must, however, appear affirmatively, or no costs will be allowed. Ferris v. Beits, 2 How. 78. On the denial of a motion to consolidate, costs should be allowed to the plaintiff. Cooper v. Weed, 2 How. 40. p. Motion to change place of trial. Costs, on motion to change the place of trial, should be allowed to abide the event of the action. Northrop v. Van Dusen, 5 How. 134 ; S. C, 3 Code E. 140 ; Norton v. Rich, 20 Johns. 475. See Morrison v. Ide, 4 How. 304. a. Motion for commission. So, upon a motion for a commis- sion to take testimony, costs should be allowed to abide the event, provided the motion has been made with due diligence {Foster v. Agassiz, 3 Code E. 150. See Bank of St. Albans v. Knickerbacker, 7 Wend. 532) ; but, if the proceedings in the action have been stayed, the order should be granted only on payment of costs of the motion. La Farge v. Luce, 2 Wend. 242. r. Order on admissions. The costs of a motion, that a party be required to pay part of a claim admitted by him in his plead- ing to be due, may be included in the order ; but the costs of the action in such case can be allowed only upon ,the recovery of final judgment, and not in the order. Bussell v. Meacham, 16 How. 193. s. Order to fix costs. The amount of costs should be fixed in the order awarding them. In cases where a party is required to pay costs as a condition of granting him a favor, the order should specify the amount, or designate some officer to settle the amount ; and it is usual in such cases, to provide in the order that the costs shall be fixed by the clerk, or by one of the justices of the court, or by a county judge. Bowne v. Anthony, 13 How. 301 ; Mor- rison v. Ide, 4 id. 304 ; S. C, 3 Code R. 27 ; Chadwick v. Brother, 4 How. 283 ; S. O, 3 Code R. 21 ; Ellsworth v. Gooding, 8 How. COSTS ON MOTIONS. 511 Costs on motion for new trial — New trial on a case. 1 ; Van SchaicJc v. Winne, 8 id. 5 ; overruling Thomas v. Clark, 5 id. 375 ; S. C., 1 Code R. N. S. 71. The clerk can make no allowance for costs of a motion, if the order does not do so. Nellis v. Be Forrest, 6 How. 413 ; Mitchell v. Westervelt, id. 265 ; S. C. affirmed, id 311 {n). See, also, Wesley v. Bennett, 6 Abb. 12. Section 2. Costs on motion for new trial. a. In general. A motion for a new trial may be made upon a case or exceptions, or upon the judge's minutes, or it may be made solely upon some ground of favor. See Code, §§ 264, 265. b. New trial as a favor. In cases where a new trial is granted as a matter of favor, it is usually conditioned upon the payment of costs. Thus it is upon these terms that a new trial is granted on the ground of newly-discovered evidence {Simmons v. Fay, 1 E. D. Smith, 107. See Warner v. West. Trans. Co., 5 Rob. 490), and the same terms are imposed on granting a new trial for errors or misconduct of the jury only. North v. Sergeant, 20 How. 519 ; 33 Barb. 350 : Harris v. The Panama R. R. Co., 5 Bosw. 312 ; Ward v. Woodburn, 27 Barb. 346 ; Brown v. Brad- shaw, 1 Duer, 199 ; Bank of Utica v. Ives, 17 Wend. 501 ; Con- rad v. Williams, 6 Hill, 444. See Overing v. Russell, 28 How. 151 ; Pennell v. Wilson, 2 Abb. N. S. 466, 476 ; S. C, 4 Rob. 610. But this rule is not applicable where a new trial is ordered on setting aside the report of a referee as against the weight of evidence. Scranlon v. Baxter, 4 Sandf. 5 ; Smith v. Schanck, 18 Barb. 344 ; Wentworth v. Candee, 17 How. 405. Neither is it applicable in an action of an equitable nature {Pennell v. Wilson, 2 Abb. N. S. 466 ; 4 Rob. 610), and where a new trial is granted on account of a perverse verdict, the costs will abide the event. Skiffington v. Clark, 20 Bng. Law & Eq. 356 ; Saunders v. Davies, 14 id. 532. See Green v. Burke, 23 Wend. 490 ; Knapp v. Curtis, 9 id. 60 ; Van Rensselaer v. Bole, 1 Johns. Cas. 279. c. New trial on a case. When a new trial is moved for upon a case or exceptions, it rests in the discretion of the court to grant or refuse the costs of the motion ; but they are usually ordered to abide the event of the action. On an application for a new trial on a case made $20 are allowed, before argument, and for argument $40. Code, § 307, sub. 5 ; Selover v. Wisner, 37 How. 176 ; Rousso v. Vontrin, 41 id. 8. See Scudder v. Gori, 28 How. 155 ; S. C, 18 Abb. 207 ; 3 Rob. 329 ; Jackett v. Judd, 18 How. 385. For making and serving a 512 COSTS ON MOTIONS. New trial on judge's minutes — Costs on granting favor. case $20 are allowed, and $10 in addition are allowed where it necessarily contains more than fifty folios. For making and serving amendments to a case, $10 are allowed. Code, § 307, sub. 3 ; Selover v. Wisner, 37 How. 176. It has been held that term fees are also taxable, subject to the general rules relating to such fees, for the period during which the motion is necessarily on the calendar, under rule 47 of the supreme court. Mechanics' Banking Association v. Kiersted, 10 How. 400 ; S. C, 4 Duer, 639 ; Drake v. Cockroft, 9 How. 479 ; Van Schaick v. Winne, 8 id. 5 ; Malan v. Simpson, 20 id. 488 ; S. O, 12 Abb. 225. See Hager v. Danforth, 8 How. 448 ; contra, Pollsdam, etc., R. B. v. Jacobs, 10 id. 453 ; Jackett v. Judd, 18 id. 385. d. New trial on judge 1 s minutes. Where a new trial is granted by the judge on his minutes, costs of a motion seem to be all that are allowable on granting the motion as a right, but the additional costs necessarily incurred may be ordered to abide the event of the action. Section 3. Costs on granting favor. a. In general. When a favor is sought by a party to an action which, if granted, will be to the prejudice of the adverse party, it is usual to impose terms, such as the payment of costs, as a condition of granting the favor, unless the party to be prejudiced thereby is himself in fault. b. Discretion as to costs. If the costs imposed as terms in such cases are to be adjusted before any officer other than the judge granting the order, the adjustment as to the amount of the costs must be made in accordance with certain rules hereafter noticed ; but where the costs are adjusted by the judge himself, his discretion, as against the party to whom the favor is granted, is absolute {Smith v. Dodd, 4 E. D. Smith, 643), except, no doubt, in a case where such discretion is positively abused, as, for example, if more costs should be exacted as the condition of a favor than could be charged on a final judgment. _ Although it seems that an appeal would not lie on such a ques- tion, yet the court has corrected errors of this nature when the appeal has been taken on other grounds. Leighton v. Wood, 17 Abb. 177 ; Union Bank v. Mote, 11 id. 42 ; S. C, 19 How 267 ; Bank of Utica v. Ives, 17 Wend. 501. And the party whose proceedings are vacated by the favor of the court has a right to insist upon a strict adherence to the principles governing COSTS ON MOTIONS. 513 General principles adopted — Amended pleadings. all such cases. See Union Bank v. Mott, 19 How. 267 ; S. C, 11 Abb. 42. c. General principles adopted. The general principle ob- served in all cases where a favor is granted upon payment of costs is, that the party required to pay such costs shall be charged with the costs of all proceedings vacated by the order granted to him. Van Valkeriburgh v. Van Schaick, 8 How. 271 ; Union Bank v. Mott, 19 id. 267 ; S. C, 11 Abb. 42 ; North v. Sargeant, 14 id. 223 ; Overing v. Bus sell, 28 How. 151. d. Amended pleadings. The general rule in all cases of the amendment of pleadings is, that the amendment shall not be made at the expense of the opposite party, but, on the other hand, that he must be indemnified for all additional expense involved in such amendment. Union Bank v. Mott, 11 Abb. 42 ; S. O, 19 How. 267; reversing S. C, 10 Abb. 372. Thus, where a plaintiff is allowed to amend his complaint, he should be charged with the costs of proceedings before notice of trial, in all cases where a new answer would be required ; and, where the amendment is allowed upon demurrer, all subsequent costs are imposed. Hendricks v. Bouck, 2 Abb. 360; S. C, 4 E. D. Smith, 461 ; Collomb v. Caldwell, 5 How. 336. And where the plaintiff has been allowed to materially amend his complaint, after the withdrawal of a juror on the trial for the purpose of allowing him an opportunity to make the motion, the same costs as above have been charged. Smith v. Dodd, 4 E. D. Smith, 643. But where, on a decision overruling a demurrer to an answer, the plaintiff is allowed to withdraw his demurrer on payment of costs, he cannot be charged with the costs of proceedings before notice of trial, as such proceedings remain unimpaired. Phipps v. Van Oott, 15 How. 110 ; Crary v. Norwood, 5 Abb. 219; Anonymous, 3 Sandf. 756; S. C, 1 Code It. N. S. 214; Nellis v. De Forrest, 6 How. 413. And so. if the defendant is allowed to amend his answer, costs of proceedings before notice of trial will not be charged against him, inasmuch as the com- plaint would not be thereby affected. Van Valkenburg v. Van Schaick, 8 How. 271. Costs thus paid by either party, on leave to amend his pleadings, cannot be deducted from the costs on final judgment against the party so amending. Considerant v. Brisbane, 1 Bosw. 644; 7 Abb. 345 (n). In cases where the court can clearly see that the amendment sought will not necessitate the abandonment or any alteration of Vol. III. — 65 514 COSTS ON MOTIONS. Postponement — New trial. the proceedings had by the opposite party, costs of the motion only, on granting the favor, will be allowed ; and, in such cases, when the error to be amended is merely formal, and the adverse party could not have been misled thereby, costs of the motion even will not be allowed. Bank of Havana v. Magee, 20 N. Y. (6 Smith) 355 ; Manning v. Dunn, 14 Barb. 583. See Clark v. Dales, 20 Barb. 67 ; Vibbard v. Roderick, 51 id. 616 ; Cayuga Bank v. Warden, 6 1ST. Y. (2 Seld.) 19, 27 ; Lounsbury v. Purdy, 18 N. Y. (4 Smith) 515. e. Postponement. It is provided by section 314 of the Code, that, "when an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding $10, besides the fees of witnesses, may be imposed, as the condition of granting the postponement." And in such case no greater amount of costs can be charged. Noxon v. Bentley, 6 How. 418. The costs thus imposed must, however, be paid immediately, and without demand. Jackson v. Pell, 19 Johns. 270. And if not so paid, the party entitled to them may proceed with the trial (Bagley v. Ostrom, 5 Hill, 516 ; Gamble v. Taylor, 43 How. 375. See Bulkeleyv. Keteltas, 2 Sandf. 735; S. C, 1 Code R. N. S. 119 ; Kirby v. Sisson, 1 Wend. 83), or he may apply to the court for an order requiring their payment. Kirby v. Sisson, 1 Wend. 83. But on adopting the latter course, the application must be made without delay, otherwise they will be allowed only as costs in the cause. Bulkeley v. Keteltas, 2 Sandf. 735 ; S. C, 1 Code R. N". S. 119. Formerly the payment of such costs might be enforced by an attachment (Fulton v. Brunk, 18 Wend. 509) ; but since the Code, a motion for an attachment in such case was denied. Vree- land v. Hughes, 2 Code R. 42. /. New trial. The costs properly chargeable in a case where a new trial is granted on any other ground than an error of the judge who tried the cause, are the costs of the trial, and of all subsequent proceedings, and no more. North v. Sargeant, 14 Abb. 223 ; S. C, 33 Barb. 350 ; 20 How. 519. See Mechanics' Banking Association v. Kiersted, 4 Duer, 639 ; S. C, 10 How. 400 ; Kennedy v. Harlem R. R. Co., 3 Duer, 659 ; Brown v. Bradshaw, 1 id. 199. And where a new trial is ordered, on pay- ment of "costs," without specifying the amount, they are tax- able in accordance with the above rule. lb. COSTS ON MOTIONS. 515 Vacating judgment and inquest — Stipulating to try cause. The rule as laid down has, however, been varied from in some instances. Thus, in one case more costs were granted (Ells- worth v. Gooding, 8" How. 1), and in another {M , Quade v. New York and Erie R. R. Co., 5 Duer, 613 ; S. C, 11 How. 434), less than the rule prescribes. When a cause is tried, after having been noticed for circuits prior to that at which a verdict is obtained, and a new trial is afterward granted "on payment of costs," the only costs to be paid are those of the circuit or term at which the trial occurred. M'Quade v. New York and Erie R. R. Co., 5 Duer, 613 ; S. C, 11 How. 434. Any extra allowance which may have been granted should not be deemed a part of the costs to be paid on granting a new trial (lb. ; Troy & Boston R. R. Co. v. Tibbits, 11 How. 168 ; Hicks v. Waltermire, 7 id. 370), though it may perhaps be imposed as a condition of opening a judgment. Ellsworth v. Gooding, 8 How. 1. g. Vacating judgment. On vacating, or setting aside a judg- ment, the costs of entering judgment only are allowed (Tracer v. Silvernail, 2 Code It. 96 ; Dix v. Palmer, 5 How. 233 ; Mann v. Provost, 3 Abb. 446. See Millspaugh v. McBride, 7 Paige, 509 ; Tripp v. Vincent, 8 id. 176) ; though it has been held that where an extra allowance has been granted under section 308 or 309 of the Code, that should also be paid. See Ellsworth v. Gooding, 8 How. 1. These costs, however, are sufficient only to warrant the open- ing of the judgment ; and if such judgment was founded upon a trial or inquest, the additional costs of setting aside such pro- ceedings will be required, if they also are vacated. Milleman v. Mayor, etc., of New York, 18 How. 542. \ h. Vacating inquest. On vacating an inquest as a matter of favor, the costs allowed are a trial fee, the clerk's trial fee, wit- ness' fees, costs of subsequent proceedings, if any, and the costs of the motion. Carpenter v. Tuffs, 2 How. 166 ; Riley v. Van Amrange, 1 id. 43 ; Fowler v. Say, id. 40 ; Deeth v. Purdy, id. 45. In some cases, under peculiar circumstances, the costs have been orderedto abide the event of the action. Faulkner v. The Mayor, etc., of Brooklyn, 2 How. 151 ; Quidore v. Van Clief id. 201. i. Stipulating to try cause. When, in granting an order dis- missing the complaint, on account of the plaintiff's neglect to 516 COSTS ON MOTIONS. Application. for judgment at general term. proceed with, the cause, he is allowed to stipulate to bring the cause to trial, on payment of costs, he should be charged with all the costs to which the defendant is entitled up to that time. Bowles v. Van Home, 19 How. 346 ; 11 Abb. 84. Section 4. Application for judgment at general term. a. Submitting controversy. On the submission of a contro- versy without action for the decision of the general term, under the provisions of section 372 of the Code, costs are in the discretion of the court, or otherwise, in the same cases as where an action is brought. The hearing is, in effect, a trial of the issues of law arising upon the admitted facts, and the costs are those of a trial and not of an appeal {Neilson v. The Mutual Insurance Co., 3 Duer, 683) ; but no costs are allowed for any proceedings prior to notice of trial. Code, § 373. o. Special verdict. The party entitled to costs on a special verdict is allowed $20 for proceedings before argument, and $40 fOr argument (Code, § 307), besides term fees, not exceeding $5, for the period during which the cause is on the general term cal- endar, lb. See Term Fees, ante, 486 to 489. c. Verdict subject to opinion of court. The costs allowed on this proceeding are the same as those allowed on special ver- dict, lb. d. Exceptions first heard at general term. In cases where exceptions are ordered to be heard in the first instance at a gen- eral term, under the provisions of section 265 of the Code, the costs are the same as on the last two proceedings just noticed. Code, §307, subd.5. CHAPTER IV. COSTS ON APPEALS. ARTICLE I. IN GENERAL. Section 1. General principles. a. Discretionary, when. In all actions the costs of an appeal are in the discretion of the court, Whenever a new trial is ordered or when a judgment is affirmed in part and reversed in part (Code, § 306), and the costs on appeals are likewise discretionary with the appellate court in all those actions or proceedings the costs of which are in the discretion of the court below. lb. The party in whose favor the appeal is decided has an absolute right to costs in all cases other than those just mentioned. Mont- gomery Go. Bank v. Albany City Bank, 7 N. Y. (3 Seld.) 459. b. Separate bills. Although a plaintiff bringing several actions upon the same instrument in the court below can only recover costs in one, being limited to disbursements in the others, yet the rule has no application to appeals from the judgment he may obtain. If separate appeals are brought he may, if successful, recover a separate bill of costs on each appeal {Pratt v. Allen, 19 How. 450); but where several defendants unite in one appeal, and there is but one set of papers, one argument, and one judg- ment, there is but one appeal, and the plaintiff, if successful, is entitled to but one bill of costs, notwithstanding the several defendants appeared by different attorneys. Ever son v. Gehr- man, 2 Abb. 413. c. Rule as to discretion. The rules by which the court is guided in those cases in which costs are discretionary have been already stated {ante, 471, 494, 505, 506), and as they are applica- ble in most respects to costs on appeals, they need only bejeferred to in this connection. This difference, however, should be observed, namely, that when a cause has been fairly decided against the ap- pellant by a competent tribunal, he will not be excused from the payment of costs upon his failure in the appellate court, except under very special circumstances. Mowatt v. Carow, 7 Paige, 328. As a general rule, in the court of appeals, costs are awarded 518 COSTS ON APPEALS. Eule as to discretion — Double coata. to the successful party, whether appellant or respondent, and whatever may be the nature of the action ; and on ordering a new trial, it is an invariable rule of this court to direct the costs to abide the event of the action. The costs, on ordering a new trial, should include all the costs in the cause, both in the court below and in the appellate court. Jacobsohn v. Belmont, 7 Bosw. 14 ; Bobbins v. Hudson River R. R., id. 1. It was for- merly the practice of the court of appeals to grant no costs, on reversing a judgment in an action for special relief. Bouchaud v. Bias, 1 N. Y. (1 Comst.) 201; S. C, 1 How. App. Cas. 509. See Bogardus v. Rosendale Manufg Co., 1 Duer, 592; S. C, 11 N. Y. Leg. Obs. 125. But this practice seems to be no longer followed under the Code, and it is now usual to give costs to the appellant upon a reversal, where no special circumstances render a different disposition of the question proper. Montgomery County Bank v. Albany City Bank, 7 N". Y. (3 Seld.) 459. Where the appellant succeeds only as to part of the matters of the appeal, neither party, as a general rule, should be allowed costs against the other. Pickett v. Barron, 29 Barb. 505 ; Duffy v. Duncan, 32 id. 587; S. C. affirmed, 35 N". Y. (8 Tiff.) 187; Stafford v. Molt, 3 Paige, 100. But in a case where the judg- ment was affirmed in all, except one point of comparatively little importance, costs were awarded against the appellants. Higbie v. Westlake, 14 TS. Y. (4 Kern.) 281. When the reversal of a judgment is on points which might have been raised in the court below but which were not there raised, neither party should be allowed costs. Youngs v. Wil- son, 24 Barb. 510. See Shaver v. Brainard, 29 Barb. 25. And where the judgment is affirmed on all points, except these, full costs should be given to the respondent. Steward v. Green, 11 Paige, 535 ; Jones v. Phelps, 2 Barb. Ch. 440 ; Wallace v. Patten, 12 Clark & Pin. 491. Where a judgment is affirmed as to one of two defendants, and reversed as to the other, costs will be allowed in favor of the former and against the latter, in the absence of special circum- stances governing costs in such cases. Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.) 459. See Gardner v. Ogden, 22 1ST. Y. (8 Smith) 327. d. Double costs. A successful appellant is not entitled to recover double costs. Dockslader v. Sammons, 4 Hill, 546; Poster v. Cleveland, 6 How. 253 ; Estus v. Baldwin, 9 id. 80 ; COSTS ON APPEALS. 519 Treble costs — Extra allowance — Dismissal of appeal — Appeal to court of appeals. Wheelook v. Holchkiss, 18 id. 468. But a respondent who was entitled to double costs in the court below, is entitled to double costs on the affirmance of the judgment in the appellate court. Thus, where a judgment was obtained against a defendant sued as a public officer, in a justice's court, and on an appeal to the county court the judgment was reversed, and on an appeal brought by the plaintiff to the supreme court the judgment of the county court was affirmed, it was held that the defendant was entitled to double costs on the appeal to the supreme court, but to single costs only upon the appeal to the county court. Wheelock v. Hotchkiss, 18 How. 468. e. Treble costs. The same rules as to double costs on appeals are applicable to treble costs in like cases. Estus v. Baldwin, 9 How. 80. f. Extra allowance. An additional allowance, authorized by sections 308 and 309 of the Code, is confined to the court of orig- inal jurisdiction, and in reference to the trial in that court, and cannot be granted by the appellate court. Wolfe v. Van Nos- trand, 2 N. Y. (2 Comst.) 570 ; S. C, 4 How. 208 ; 2 Code R. 130 ; Martin v. McCormick, 3 Sandf. 755 ; S. C, 1 Code E,. N. S. 214 ; Van Mensselaer v. Kidd, 5 How. 242. g. Dismissal of appeal. In cases in which costs are, under section 306 of the Code, in the discretion of the court, an appeal from a non-appealable proceeding will be dismissed without costs, if it was previously an unsettled question as to whether such proceeding was appealable or not {Qhittenden v. Mission- ary Society, etc., 8 How. 327) ; and this rule is especially observed if the appellant suffers manifest injustice from the decision below. New York Ice Oo. v. Northwestern Ins. Co., 23 N. Y. (9 Smith) 357 ; S. C, 21 How. 296 ; 12 Abb. 414. And so where a party, instead of moving to dismiss an appeal, immediately on its being brought, waits until the final hearing on the merits before he raises the question, he will be allowed no costs on its dismissal. Williams v. Fitch, 15 Barb. 654. An appeal will also be dismissed without costs, when the right of appeal is taken away by an act of the legislature, during the pendency of the appeal. Gale v. Wells, 7 How. 191 ; Porter v. Jones, id. 192. Section 2. Appeals to court of appeals. a. In general. The rules established by the Code, regulating the subject of costs, and which have superseded all former rules 520 COSTS ON APPEALS. On affirmance or reversal. inconsistent therewith., are applicable as well to costs in the court of appeals, as in the inferior courts. See Montgomery County Bank v. Albany City Bank, 7N.T.(3 Seld.) 459. And no dis- tinction is made by the Code, as to the amount of costs in the court of appeals, whether the appeal is from a judgment or from an order in a civil action ( White v. Anthony, 23 N. Y. [9 Smith] 164. See Tauton v. Oroh, 9 Abb. N. S. 453 ; Hall v. Emmons, id. 453 (n.); S. C. affirmed, id. 370; reversing S. C, 8 Abb. K S. 451 ; 39 How. 187), or from a decision in a special proceeding. People v. Sturtevant, 3 Duer, 616 ; S. O, 12 JST. Y. Leg. Obs. 86: 9 How. 304. An extra allowance, as damages for delay, can be made only on an appeal from a judgment. Code, § 307. o. Term fees. Previous to the amendment of section 307 of the Code, in 1866, a term fee in the court of appeals was allowed for every term during which the cause was necessarily on the calendar, without any limitation as to the number of terms (Gleniworth v. Mount, 17 Abb. 15 ; S. C, 10 Bosw. 699 ; Shaw v. Bwight, id. 18; S. C, 26 How. 163; Adams v. Perkins, 25 id. 368; Hakes v. Peck, 30 id. 104), but by the amendment of that year, the terms are now limited to ten, excluding the term at which the cause is argued. Code, § 307, subd. 7. No term fee will be allowed in the court of appeals for any term before the return is filed. Reformed Butch Church, etc., v. Brown, 24 How. 89. c. On affirmance or reversal. The party recovering costs on an affirmance or reversal is, under the provisions of the Code, entitled to $30 for proceedings before argument, $60 for argu- ment, $20 for preparing and serving a case, besides term fees and disbursements. Code, §§ 307, 311. Upon affirming a judgment the court may also, in its discre- tion, award damages for delay, not exceeding ten per cent on the amount of the judgment (Code, § 307, subd. 6), and where such damages are awarded "upon the judgment," in general terms, it is held that the percentage should be computed upon the amount of both the judgments below, including costs at the general as well as the special term, but not upon tue interest accrued on the judgments. Adams v. Perkins, 25 How. 368. An award by the court of interest by way of damages for delay, etc., has been held to entitle the successful respondent to simple interest only, to which he would be entitled, in any COSTS ON APPEALS. 521 On dismissing appeal — Appeals to general term. case, and not double interest, which the court never allows. Hoard v. Garner, 4 Sandf. 677. d. On dismissing appeal. When an appeal to the court of appeals is dismissed on motion "with costs," the only costs to which the respondent is entitled are for proceedings before argu- ment, and to his disbursements {Peterson v. Dickel, 8 Abb. 259), unless "costs of the motion" are also given, in which case he will be entitled to recover $10 in addition. Kanouse v. Martin, 2 Sandf. 737 ; S. C, 3 Code R. 203. If the appeal is dismissed at the first term, no term fee will be allowed ; such fee being given as a compensation for attending the court and waiting for the call of the cause, and hence is only chargeable when the cause, continuing on the calendar, is not reached, or is postponed. lb. Where the appeal is dismissed, with costs, after argument on the merits, the respondent is entitled to recover full costs, includ- ing the fee for argument and also term fees. Webb v. Norton, 10 How. 117. See White v. Anthony, 23 N. Y. (9 Smith) 164 ; Hall v. Emmons, 40 How. 137; S. C, 9 Abb. N. S. 370. Section 3. Appeals to general term. a. Appeals from judgments. A party recovering costs on appeals from a judgment of the special term, or of another court of record to the general term, is entitled to $20 before argu- ment, and to $40 for argument (Code, § 307, subd. 5), with the term fees and disbursements stated in a preceding chapter. Ante, 484, 500. b. Appeals from order for new trial. On motion at special term for a new trial upon a case, the same costs are to be given as upon an appeal from a judgment (Code, § 307 ; Scudder v. Gori, 28 How. 155 ; S. C, 18 Abb. 207 ; 3 Rob. 629 ; Selover v. Wisner, 37 How. 176), and it is to be clearly inferred that an appeal from an order made on such motion will be subject to the same rule as to costs. Where an appeal is brought in the supreme court from the county court, the successful party is entitled to full costs under subdivision 5 of section 307 of the Code, notwithstanding the appeal is brought from an order and not from a judgment. Gray v. Hannah, 3 Abb. K S. 183. When an order granting a new trial as a matter of favor is affirmed on appeal, the respondent will be taxed only with the Vol. III.— 66 522 COSTS ON APPEALS. Appeals from order on demurrer, special proceedings, and other orders. costs of the motion below, and not with the costs of the appeal. North v. Sargent, 13 Abb. 259. c. Appeals from order on demurrer. The party succeeding on an appeal from an order sustaining or overruling a demurrer made upon a regular trial, is entitled to recover the same costs as upon the trial of an issue of law. Van Schaick v. Winne, 8 How. 5 ; Sutherland v. Tyler, 11 id. 251 ; Phipps v. Van Oott, 15 id. 110. Nellis v. Be Forrest, 6 id. 413, which holds to the contrary, is overruled by the more recent decisions. See Ives v. Miller, 19 Barb. 196. But where the demurrer is only to part of the pleadings, it has been held that the order upon it is clearly within section 349 of the Code, and that on appeal from such order the rule as above stated has no application, and motion costs only can be taxed. Drummond v. Husson, 8 How. 246 ; S. C, 1 Duer, 633. See Nolton v. Western R. R. Co., 10 How. 97 ; S. C. affirmed, 15 N. Y. (1 Smith) 444. d. Appeals from special proceedings. When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogates' courts, shall be brought before the supreme court for review, such proceedings shall, for all pur- poses of costs, be deemed an action at issue on a question of law from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. Code, § 318. Proceedings to compel the support of a poor relative are within this section of the Code, and on appeal the successful party is entitled to costs. Haviland v. White, 7 How. 154. e. Appeals from other orders. On appeals from other orders costs are the same as upon original motions, and are therefore equally within the discretion of the court, but in no case should they exceed $10. Res v. Miller, 19 Barb. 196 ; Savage v ' Darrow, 4 How. 74 ; Drummond v. Husson, 8 id 246 • 1 Duer, 633. • ■«*", On affirming an order it is a uniform rule to grant costs, and 642 8n s m c f ° 1S USUally allowed - Purc hase v. Bellows, 9 Bosw. /- Dismissal of appeal. The rules regulating costs on dis- missal of appeals from judgments to the general term are the same as those governing on the dismissal of appeals from judg- COSTS ON APPEALS. 523 Costs on appeals from justices' courts. ments in the court of appeals. See Irving Bank v. Palmer, July, 1864 (not reported). But, on the dismissal of an appeal from an order, $10 costs only can be allowed. Section 4. Costs on appeals from justices' courts. a. In general. Costs on appeals from justices' courts are regulated by the provisions of section 371 of the Code, which first provides for an offer of compromise on the part of the respondent. If no such offer to compromise is made by the respondent, and the judgment in the appellate court turns out to be more favorable to the appellant than the judgment below ; or, if such offer is made, but not accepted, and the judgment in the appellate court is more favorable to the appellant than the offer of the respondent, the latter shall recover costs ; provided, however, that the judgment appealed from be reversed on such appeal, or be made more favorable to him, to the amount of at least $10. In case the offer to compromise is made by the respondent, and accepted by the appellant, the latter is entitled to recover all his disbursements on appeal, and all his costs in the court below. He shall recover costs, however, only as herein provided ; and the respondent shall be entitled to recover costs where the appel- lant is not so entitled to recover them. Whenever costs are awarded to the appellant, he may tax, as part thereof, the costs and fees paid to the justice on making the appeal, as disbursements, in addition to the costs in the appel- late court ; and when the judgment in the suit before the justice was against the appellant, he may be further allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judgment below had been rendered in his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or damages, and render judgment for the balance. The following fees and costs, and no other, except fees of offi- cers, disbursements and witnesses' fees, shall be allowed on appeal to the party entitled to costs as herein provided, when the new trial is in the county court : For proceedings before notice of trial, $10. For all subsequent proceedings before trial, $7. For trial of an issue of law, $10. For every trial of an issue of fact, $15. 524 COSTS ON APPEALS. Costs on appeals from justices' courts. For argument of a motion for a new trial on a case or a bill of exceptions, $10. In all cases, to either party, for every term, not exceeding five, at which, the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, $7. In other appeals the costs shall be as follows : To the appellant on reversal, $15. To the respondent on the affirmance, $12. If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs allowed, to either party shall be such sum as the appellate court may award, not exceeding $10. If the appeal be dismissed for want of prosecution, as pro- vided by section 364, no costs shall be allowed to either party. In every appeal the justice of the peace before whom the judg- ment appealed from was rendered shall receive $2 for his return. If the judgment be reversed for an error of fact in the pro- ceedings, not affecting the merits, costs shall be in the discretion of the court. If, in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed. Code, § 371. A mere general statement in the notice of appeal that the judgment appealed from is too large in amount, or that it ought to have been for a less amount, or any other similar statement, has been held insufficient to entitle the appellant to costs on the appeal, even though the judgment in the appel- late court is more favorable to him than the judgment in the court below. Forsyth v. Ferguson, 27 How. 67 ; Wallace v. Patterson, 29 id. 170 ; Barnard v. Pierce, 28 id. 232 ; Gray v. Hannah, 30 id. 155 ; S. O, 1 Abb. N. S. 43 ; HotchUss v. Banks, 36 How. 61 ; Putnam v. Heath, 41 id. 262. But it has also beeu ■held that a notice by a defendant specifying that "the judgment •should have been more favorable to him in this particular, to wit, that said judgment should not have been for more than $25 damages, besides costs," while bad as a precedent, was sufficient to entitle the appellant to costs, if he recover a judgment in the appellate court more favorable to him than the judgment in the court below. Tounghanse v. Fingar, 47 K Y. (2 Sick.) :99; S. C. again, 63 Barb. 299; 43 How. 250. See Loomis v. COSTS ON APPEALS. 525 Appeal transferred to supreme court. Higbie, 29 id. 232; Myers v. White, 37 id. 393; Fox v. JVellis, 25 id. 144 ; Heed v. Moore, 31 id. 264. All that the statute requires is, that the modification desired should be clearly and precisely stated, and, if the requisite precision and certainty are attained, it matters not in what language the state- ment is clothed. Putnam v. Heath, 41 How. 262. As to costs where there has been an offer to reduce the judment, see Pike v. Johnson, 47 N. Y. (2 Sick.) 1 ; and see Appeals, post. Except in cases where the judgment is reversed for an error of fact in the proceedings not affecting the merits, or in cases where the judgment is partly affirmed and partly reversed (Code, § 371), the appellate court has no power to exercise any discretion as to costs. Ayres v. Western Railroad Corporation, 49 M". Y. (4 Sick.) 660 ; Logue v. Gilliclc, 1 E. D. Smith, 398 ; Hahn v. Van Doren, id. 411 ; Main v. Eagle, id. 619 ; Garrison v. Pearce, 3 id. 255 ; Snyder v. Goodrich, 2 id. 84 ; Mills v. Winslow, id. 18 ; S. C, 3 Code R. 44. b. Appeal transferred to supreme court. Where an appeal from a judgment rendered by a justice of the peace is trans- ferred into the supreme court, because of the incapacity of the county judge to act, the costs are the same as if the appeal had been decided by the county judge, as already stated. Taylor v. Seeley, 4 How. 314 ; S. C, 3 Code E,. 84 ; 0' Oallaghan v. Carroll, 16 How. 327. See Davis v. Stone, 16 How. 538. CHAPTER V. COSTS ON SETTLEMENT BEFOKE JUDGMENT. ARTICLE I. IN GENERAL. Section 1. Costs against defendant. a. In general. "Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant, as costs, than at the rates pre- scribed by that section." Code, § 322. There is evidently an error in the wording of the latter part of this section, as no rates whatever are prescribed by section 304, and it seems clear that the legislature intended to refer, in this connection, to section 307, which in fact does prescribe the rates allowed. See Brace v. Beatty, 7 Abb. 445 ; Wilson v. Allen, 4 How. 54 ; S. C, 7 N. Y. Leg. Obs. 286 ; 2 Code R. 26. The actions mentioned in section 304, and which come within the provisions of section 322, include all those, as a general rule, in which the right to costs follows the judgment as of course. But in other actions — that is, those of an equitable nature — the costs on a settlement rest, in like manner as costs in the cause, in the discretion of the court. o. Extra allowances. Upon a settlement, before judgment, in any of the actions specified in section 308 of the Code, the plaintiff, if entitled to costs, is also entitled to one-half the extra allowance granted in that section. § 308. No extra allowance, however, can be granted to the plaintiff, under the provisions of section 309, on such a settlement before judgment in any action specified in section 304. Brace v. Beatty, 7 Abb. 445 ; reversing S. C, 5 id. 221. Section 2. Costs on discontinuance. a. In general. As a general rule, applicable alike to equita- ble and legal actions, the plaintiff will be required to pay costs on discontinuance. Bedell v. Powell, 13 Barb. 183 ; Marks v. Bard, 1 Abb. 63 ; Seaboard and Roanoke M. H. Co. v. Ward, 18 Barb. 595; S. C, 1 Abb. 46; Cooke v. Beach, 25 How. 356; COSTS ON SETTLEMENT BEFORE JUDGMENT. 527 Before and after defendant's appearance. McKenster v. Van Zandt, 1 "Wend. 13 ; Lewis v. Oermond, 1 Paige, 300 ; Pignolet v. Daveau, 2 Hilt. 584. b. Before defendant s appearance. Under the former prac- tice a plaintiff was allowed to discontinue, without the payment of costs, as against a defendant who had not actually appeared in the action, even though he may have retained an attorney before the plaintiff discontinued. Smith v. White, 7 Hill, 520 ; reversing S. C, 4 id. 166. And this rule has been held to be still applicable under the Code. Schenck v. Long, 14 How. 95. See Averill v. Patterson, 10 How. 85 ; S. O, 10 N. Y. (6 Seld.) 500. See, however, a contrary doctrine, Weigan v. Held, 3 Abb. 462 ; Foster v. Bowen, 1 Code R. N. S. 236. c. After appearance. Where a plaintiff recovers costs against a portion of the defendants, he may discontinue his actibn, as to a co-defendant who has answered jointly with them, -without the payment of costs as to him. Stafford v. Onderdonk, 8 Barb. 99 ; S. C.j 2 Code R. 115. So a plaintiff will be allowed to discon- tinue without the payment of costs, as to a defendant, who was made such by mistake, and who, though not served with the summons, appeared in the action. Waterbury Leather Manu- facturing Co. v. Krause, 1 Hilt. '560 ; S. O, 9 Abb. 175 (».). Where one of several joint debtors is an infant, the judge at the trial, on the fact of infancy being proved, may, in his discre- tion, permit the plaintiff to discontinue the action, as against such infant, without costs. Butler v. Morris, 1 Bosw. 329. See Bank of Attica v. Wolf, 18 How. 102. And where the defend- ants are all infants, and having obtained goods on credit, inter- pose the plea of infancy, the plaintiff will be permitted to discon- tinue without costs. Van Buren v. Fort, 4 Wend. 209. But in such case, application for leave to discontinue without costs must be made promptly, and as soon as the plaintiff is informed of the defense ; otherwise he will be charged with costs. St. John v. Hart, 16 How. 192. In a case where the defendant withheld from the plaintiff infor- mation of a release of the cause of action, of the existence of which the plaintiff was ignorant ; and after suit brought, omitted to plead it in the answer, but afterward disclosed it as a defense, when the cause was ready for trial, the plaintiff was allowed to discontinue without costs. Barante v. Deyermand, 40 How. 180 ; S. C, 41 N. Y. (2 Hand) 355. And the court will allow a plaintiff to discontinue without 528 COSTS ON SETTLEMENT BEFOKE JUDGMENT. After appearance. costs, if he makes application without unreasonabls delay, where he commences an action on the authority of a previous decision which is afterward reversed or overruled. Sunney v. Roach, 4 Abb. 16 ; Robinson v. Rosher, 1 Younge & Coll. Ch. 7. The plaintiff will also be allowed to discontinue without costs, if after the commencement of the action the defendant is sen- tenced to the State prison {Fort v. Palmerlon, 19 Wend. 94 ; Lackey v. McDonald, 1 Caines, 116), or is discharged from the obligation of the payment of his debts, under an insolvent or bankrupt law. Park v. Moore, 4 Hill, 592 ; Lee v. Phillips, 6 id. 246 ; Merritt v. Arden, 1 Wend. 91 ; Young v. Bush, 36 How. 240) ; or is discharged from imprisonment for his debts under an insolvency act. Ludlow v. Hackett, 18 Johns. 252 ; Honeywell v. Bums, 8 Cow. 121 ; Ashworth v. Wrigley, 1 Hall, 145 ; Hart v. Storey, 1 Johns. 143. And in all these cases the plaintiff may so discontinue, no mat- ter what may be the form of the action {Merritt v. Arden, 1 Wend. 91), and notwithstanding the offer of the defendant to stipulate not to plead the discharge. Ashworth v. Wrigley, 1 Hall, 145. But in order that the plaintiff may be excused from trial and costs, on account of the defendant's insolvency, he must show that the defendant was discharged after the commencement of his action (see Case v. Belknap, 5 Cow. 422), unless he can make it clearly appear that he had no information of the defendant's discharge, until after the action was commenced. Smith v. Skin- ner, 1 How. 122. So if the plaintiff, knowing of the defendant's discharge, pro- ceeds in the cause, he must, if he afterward discontinues, pay the costs accruing since the discharge. Ludlow v. Hackett, 18 Johns. 252 ; Merritt v. Arden, 1 Wend. 91. It should be observed that the mere fact of the defendant's insolvency is not of itself sufficient ground for allowing a discon- tinuance without costs, but there must be an actual discharge under the insolvent act. Collins v. Evans, 6 Johns. 334. See Case v. Belknap, 5 Cow. 422. If, however, the order for the defendant's discharge has been obtained, it is sufficient, although the certificate of such discharge has not yet been granted Park v. Moore, 4 Hill, 592. If the defendant will give sufficient security to satisfy any judgment that may be obtained against him, then the plaintiff will not be allowed to discontinue without payment of costs in COSTS ON SETTLEMENT BEFOEE JUDGMENT. 529 After appearance — Discretion of court. cases where lie otherwise would be. Fort v. Palmerton, 19 Wend. 94. As a general rule the court is always disposed to permit a plaintiff to discontinue without costs where the defendant, by his own act, renders further proceedings on the part of the plaintiff useless. Thus, where the action was brought for equitable relief and the defendant absconded from the jurisdiction of the court and made relief impossible, the plaintiff was allowed this privilege (Knox v. Brown, 2 Bro. C. C. 186; S. C, 1 Cox, 359); and so where the defendant in an action of ejectment gave up the premises to the plaintiff, this privilege was allowed to the latter. Jackson v. Webb, cited 1 Cai. 116. If, however, the plaintiff, by his own act or procurement, defeats the object of the action, he cannot be permitted to discontinue without costs. Hammersley v. Barker, 2 Paige, 372. Where an executor or administrator, acting as such, brings an action through mistake (Purdy v. Purdy, 5 Cow. 14 ; Phoenix v. Rill, 3 Johns. 249), or finds that it would be useless to proceed in consequence of facts subse- quently discovered {Fowler v. Starr, 3 Denio, 164 ; Arnoux v. Steinbrenner, 1 Paige, 82), he will be permitted to discontinue without the payment of costs, unless he has acted in bad faith. Phoenix v. Hill, 3 Johns. 249 ; Harris v. Jones, 3 Burr. 1451. On an offer by the principal defendant in a foreclosure suit to settle with the plaintiff, the latter may discontinue without the payment of costs to the other defendants. Q : allagher v. Egan, 2 Sandf. 742. See Pennell v. Wilson, 2 Abb.'"N. S. 466 ; S. C, 2 Rob. 505. Where one or more foreign consuls have been joined with other defendants, against whom the action was properly brought, and an injunction order granted, the plaintiff may discontinue without costs as to the consuls, but he can do this only on pay- ment of costs and damages arising from the injunction as to the other defendants ; and he cannot do so if such other defendants have interposed a counter-claim. Taaks v. Schmidt, 19 How. 413. d. Discretion of court. Upon the discontinuance of an action as against one of several defendants, the terms imposed upon the plaintiff are wholly discretionary with the special term, and cannot be made the subject of an appeal' to the general term. Waterbwy Manufacturing Co. v. Krause, 1 Hilt. 560 ; S. C, 9< Abb. 175 (n.) Yol. Ill — 67 CHAPTER VI. OP LIABILITIES OP PARTICTJLAK PBESONS. ARTICLE I. WHO LIABLE AND WHEN. Section 1. Liability of trustees. a. In general. Parties to an action standing in a representa- tive or fiduciary capacity are exempted from all personal respon- sibility for costs, and when awarded against them they are chargeable only upon the property or persons whom they repre- sent, unless directed by the court to be paid by them personally for mismanagement or bad faith in the action or defense. Code, § 317. b. Who are trustees. Executors, administrators, trustees of an express trust, or a person expressly authorized by statute to sue or be sued on behalf of others, are within the provisions of the statute (Code, § 317), and so, also, are receivers (St. John v. Denison, 9 How. 343 ; Devendorf v. Dickinson, 21 id. 275; Marsh v. Hussey, 4 Bosw. 614), and assignees in trust for the benefit of creditors. Avery v. Smith, 9 How. 349 ; Conger v. Hudson River R. R. Co., 7 Abb. 255 ; Cunningham v. McGregor, 12 How. 305 ; S. C, 5 Duer, 648. But where the assignment is void the assignee cannot claim exemption from costs on the ground that he was such. Sibell v. Remsen, 30 Barb. 441 ; S. C. affirmed, 29 How. 574 (n). The president of a banking association, and the president or treasurer of any other association, suing or sued in its behalf, are clearly within the provisions of section 317 (See Courtois v. Harrison, 1 Hilt. 109 ; S. C, 3 Abb. 96 ; 12 How. 359. See, con- tra, Lowerre v. Vail, '5 Abb. 229) ;• and so are the trustees of a charitable or educational corporation. Slocum v. Barry, 34 How. 320 ; S. C affirmed, 5 Trans. App. 173 ; 4 Abb. N. S. 399 ; 38 N. Y. (11 Tiff.) 46. c. When trustees are charged. A trustee of any kind must sue as such, in order to avoid personal liability for costs, and where he sues in his own right, and is defeated, a special order of the court, under section 317, is unnecessary to charge him OF LIABILITIES OF PARTICULAR PERSONS. 531 When trustees are charged. personally. Murray v. Hendrickson, 1 Bosw. 635; S. C, 6 Abb. 96. A receiver should make application to the court for leave to sue as such, and, if he neglects to do so, he will not be exempted from personal liability for cqsts, in case judgment is recovered against him. Phelps v. Cole, 3 Code R. 157 ; Smith v. Woodruff, 6 Abb. 65. See vol. 1, p. 198. See People v. Judges of Albany Mayor's Court, 9 Wend. 486. Where, however, a receiver, as such, brings an action in good faith, he will not be held liable for costs for not proceeding to trial, where a good reason is shown for not trying, pursuant to notice or stipulation. Purdy v. Purdy, 5 Cow. 14 ; St. John v. Denison, 9 How. 343 ; Reeder v. Seeley, 4 Cow. 548 ; Arnoux v. Steinbrenner, 1 Paige, 82 ; Phoenix v. Hill, 3 Johns. 249. The plaintiff, in an action against an executor or adminis- trator, is entitled to costs in the same manner as he would have been entitled to them in an action against the deceased in his life- time ; and the judgment should, in all such cases, direct that the costs recovered shall be collected out of, or charged upon, the estate or assets in the hands of the executor or administrator. But, if the defendant has been guilty of mismanagement or bad faith in the defense, the court may direct the costs to be paid by the defendant personally. This, however, cannot be done where the defendant is exempt by the provisions of the Revised Statutes. 2 R. S. 90, § 41 ; Fish v. Crane, 9 Abb. N. S. 252. See Howe v. Lloyd, 9 Abb. N. S. 257; S. C, 2 Lans. 335 ; Smith v. Patten, 9 Abb. N. S. 205. In Holdridge v. Scott, 1 Lans. 303, it is held that executors and administrators are person- ally liable for costs, of course, in those cases in which they bring actions in their representative capacity, and fail, when they might have sued in their own name; and that it is only where they necessarily bring actions in their representative character that they escape liability for costs on failing in the action, and that even then they may be charged personally with costs, in case of mismanagement or bad faith. And this mismanagement or bad faith must be understood as relating to the commencement of the action and the proceedings therein, and not to the conduct of the trustee generally in the management of the trust. v Kimberly v. Stewart, 22 How. 281. See Kimberly v. Blackford, 22 How. 443. 532 OF LIABILITIES OF PARTICULAR PERSONS. Trustees, how charged — Costs against estates of deceased persons. d. Trustee, how charged. A trustee cannot, in any case, whether as plaintiff or defendant, be charged with costs, without an express order of the court ; and the taxation of costs against a trustee, without leave, is a substantial defect in the judgment which will entitle him to relief. Woodruff v. GooTc, 14 How. 481. See ITowe v. Lloyd, 9 Abb. K S. 257 ; S. C, 2 Lans. 335. In an action in the supreme court, where a motion for costs against executors or administrators is made at a term of the court not held by the same judge before whom the trial was had, the certificate of the judge before whom the trial was had must be presented, showing what facts bearing on the question of costs appeared on the trial. ParTchill v. Hillman, 12 How. 353. e. Party represented. Where two persons sue as co-executors and fail in the action, the fact that one of them was beneficially interested in the recovery is not a sufficient ground for charging him with costs. Finley v. Jones, 6 Barb. 229. Neither can a judgment creditor be charged with the costs of an action brought by a receiver appointed in supplementary pro- ceedings under the judgment, unless such action was brought by his direction ( Wheeler v. Wright, 23 How. 228 ; S. C, 14 Abb. 353 ; McHarg v. Donelly, 27 Barb. 100) ; but if the action is brought by the direction and for the benefit of such creditor, he will be chargeable with the costs. McHench v. McHench, 7 Hill, 204. Section 2. Costs against estates of deceased persons. a. In general. Under the Revised Statutes no costs could be recovered in an action against an executor or administrator to be levied of his property, or of the property of the deceased, unless it should appear that the demand on which the action was founded was presented within the time mentioned in the notice required to be published for the presentation of claims against the estate, and its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the provisions of the statute. 2 R. S. 90, § 41. The provisions of section 41 are held to be still in full force, and that not only executors, etc., themselves, but also the estates which they represent, are exempt from liability for costs in such cases, under the Code, as well as formerly. Belden v. Knowlton, 1 Code R. N". S. 127; S. C.', 3 Sandf. 758. Bee Smith v. Patten, 9 Abb. N. S. 205 ;' Howe'v. Lloyd, id, 257; S. C„ 2 Lans. 335; Holdridge v. Scott, 1 id. OP LIABILITIES OF PARTICULAR PERSONS. 533 In what actions — Presentation of claims. 303 ; Morgan v. Skidmore, cited 9 Abb. N. S. 253 (n.) See, contra, Fish v. Crane, 9 Abb. N. S. 252. The plaintiff is, in either one of the alternatives mentioned in the statute, entitled to costs. Thus, where the claim for costs on the ground that the demand was unreasonably resisted has been successfully defended, it may nevertheless be sustained on the single ground that the defendant refused to refer the claim pur- suant to the provisions of the statute. Gorham v. Ripley, 16 How. 313. See, also, Bogardus v. Bullock,l Denio, 278 (n.) b. In what actions. The provisions of the statute have not been extended by the Code to equitable actions, and costs in such actions, even against executors, etc., are wholly within the discre- tion of the court ( Van Piper v. Poppenhausen, 43 N. Y. (4 Hand) 68 ; Tories v. Peck, 9 How. 201 ; Benedict v. Gaffe, 3 Duer, 669. See Sands v. Craft, 10 Abb. 216 ; S. C, 18 How. 438 ; Barker v. White, 3 Keyes, 617) ; and it has been held that this provision has application only to demands existing against the deceased in his life-time, and not to any claim created since his decease, by or under the supervision of the executors. Smith v. Patten, 9 Abb. N. S. 205. So it has been held not to apply to actions commenced against persons in their life-time and revived after their decease against their legal representatives. Mitchell v. Mount, 17 Abb. 213 ; Tindal v. Jones, 11 id. 258 ; S. C, 19 How. 469 ; Lemen v. Wood, 16 id. 285 ; Benedict v. Gaffe, 3 Duer, 669. See, contra, McCann v. Bradley, 15 How. 79 ; Theriot v. Prince, 12 id. 451. c. Presentation of claims. Unless the whole of the claim made in the action is presented to the executor or administrator of the estate before suit, and within the period duly prescribed by the executor's notice, no costs can be recovered (Wallace v. Mark- ham, 1 Denio, 671 ; Knapp v. Curtiss, 6 Hill, 386 ; Belden v. Knowlton, 3 Sandf. 758 ; S. O, 1 Code R. K S. 127 ; Bradley v. Burwell, 3 Denio, 261 ; Bullock v. Bogardus, 1 id. 276) ; and this is the rule although the claim did not arise until after the expiration of the time required, if the plaintiff was in any sense a creditor of the estate. Bradley v. Burwell, 3 Denio, 261. A creditor, on presenting a claim against an estate, need not make oath of the justice thereof, unless required to do so by the executor or administrator ; and such claim may be presented pre- vious to the publication of notice to creditors, and if then posi- tively rejected, it need not be presented again. Russell v. Lane, 1 Barb. 519 ; Gansevoorl v. Nelson, 6 Hill, 389. 534 OP LIABILITIES OF PAETICULAK PEKSONS. Unreasonable resistance and neglect. The fact that an executor, etc., omits to advertise for the pre- sentation of claims does not render either him or the estate liable for costs ; nor does it excuse the plaintiff from presenting his claim before suit. Snyder v. Young, 4 How. 217 ; Fort v. Good- ing?, 9 Barb. 388 ; Comstock v. Olmstead, 6 How. 77 ; Van Yleck v. Burroughs, 6 Barb. 341 ; Russell v. Lane, 1 id. 519. See Bucklin v. Chapin, 35 How. 155; S. C, 53 Barb. 488; 1 Lans. 443. d. Unreasonable resistance. It is held not to be unreasonable to resist a claim which, the executor has good reason to suppose is in part or wholly unfounded, even though such impression turns out to be erroneous {Stephenson v. Clark, 12 How. 282 ; Corn- stock v. Olmstead, 6 id. 77), and especially where the executor acts under advice of counsel. Proude v. Whiton, 15 How. 304. And a claim which is materially reduced on the trial cannot be said to have been unreasonably resisted (Buckhout v. Hunt, 16 How. 407 ; Cruikshank v. Cruikshank, 9 id. 350 ; Oomstock v. Olmstead, 6 id. 77 ; Russell v. Lane, 1 Barb. 519 ; Robert v. Ditmas, 7 Wend. 522 ; Carhart v. Blaisdell, 18 id. 531 ; Woodin v. Bagley, 13 id. 453), even in a case where the defendant offers no evidence to controvert the claim. Lansing v. Cole, 3 Code K. 246. A moderate deduction, however, not arising from the rejection of any separate item claimed, or from a counter-claim, but merely made on account of a difference of opinion as to the value of services actually performed, is not sufficient to excuse the estate from costs. Fort v. Gooding, 9 Barb. 388. The bur- den of proof rests upon the plaintiff, to show that his claim was unreasonably resisted, and as part of such proof he must show that the defendant had sufficient assets to pay his claim. Bul- lock v. Bogardus, 1 Denio, 276 ; Nicholson v. Showerman, 6 Wend. 554 ; Carhart v. Blaisdell, 18 id. 531. e. Unreasonable neglect. An executor or administrator will be afforded a reasonable time for inquiry and examination after the presentation of a claim, according to the nature of the case', and cannot be charged with neglect until the lapse of such time. Thus, where letters testamentary were issued thirty-four days before the claim was presented, and an action commenced upon it fifteen days after its presentation, it was held that the claim had not been unreasonably neglected. Buckhout v. Hunt, 16 How. 407. See, also, Knapp v. Curtiss, 6 Hill, 386 ; Stephenson v. Clark, 12 How. 282 ; Russell v. Lane, 1 Barb. 519. OF LIABILITIES OF PARTICULAR PERSON'S. 535 Refusal to refer — Costs, how allowed. /. Refusal to refer. The executor is also entitled to a reason- able time in which to decide whether or not he will consent to a reference (Knapp v. Curtiss, 6 Hill, 386), and in order to charge the estate with costs on the ground of a refusal to refer a claim, it must affirmatively appear that there was such a refusal by the legal representative {Stephenson v. Clark, 12 How. 282), and also that the plaintiff offered to refer his claim. Proude v. Whiton, 15 How. 304 ; S. 0. affirmed, 15 id. 305 (n.) ; Stephenson v. Clark, supra, overruling Fort v. Gooding, 9 Barb. 394 ; Swift v. Blair's Executrix, 12 Wend. 278 ; Harvey v. SMllman's Execu- tor, 22 id. 571. It has been held that an unqualified rejection of the claim, on the part of the executor, though unaccompanied with any offer to refer, is not equivalent to a refusal to refer (Buckhout v. Hunt, 16 How. 412 ; Proude v. Whiton, 15 id. 304), and that neither is the refusal by the executor of an offer to arbitrate. He can only be asked to refer in the manner prescribed by the statute. Swift v. Blair, 12 Wend. 278 ; Cruiksharik v. Cruik- shank, 9 How. 350. It seems, however, that a neglect or refusal to answer a proposition or offer to refer might be deemed a refusal. See Proude v. Whiton, 15 How. 304. It is not a suffi- cient compliance with the statute for the executor to offer to refer the claim to referees, all of whom are named by himself, and if he insists upon doing so, it will be regarded as equivalent to a refusal to refer. Qqrham v. Ripley, 16 How. 313. An offer to refer an account, presented to administrators or executors, is good if made by parol, and need not be in writing. Lanning v. Smarts, 9 How. 434. g. Costs, how allowed. Costs against the estate of a deceased person can be allowed only upon the special order of the court, and if taxed without such order they will be stricken out, on motion. Howe v. Lloyd, 2 Lans. 335 ; S. O, 9 Abb. 1ST. S. 257; Mersereau v. Ryerss, 12 How.. 200 ; Weeks v. Wanmaker, 2 id. 15 ; Knapp v. Curtiss, 6 Hill, 386 ; Winne v. Van Schaick, 9 Wend. 448 ; Snyder v. Young, 4 How. 217. Referees have no power to allow costs against the executor or administrator personally, or against the estate he represents. Mersereau v. Ryerss, 13 How. 200. Where the motion for costs is made at a term of the court not held by the same judge before whom the trial was had, a certificate should be procured from the judge who tried the cause, showing what facts bear- 536 OF LIABILITIES OF PARTICULAR PERSONS. Costs against infant plaintiffs. ing on the question of costs appeared on the trial. ParJchill v. Hillman, 12 How. 353 ; 2 R. S. 90, § 41. And when the cause is tried before a referee his certificate should be procured. Mer- sereau v. Ryerss, 12 How. 300. A statement in the certificate of the judge that the claim was "unreasonably resisted," or "neglected," etc., is not conclusive as to costs. Gansevoort v. Nelson, 6 Hill, 389 ; overruling Foot v. Gumaer's Executors, 12 Wend. 195. And such a certificate by a referee is no evidence whatever. Comstock v. Olmstead, 6 How. 77 ; Buckhout v. Hunt, 16 id. 407. Section 3. Costs against infant plaintiffs. a. In general. The responsibility of the guardian ad litem, for the costs in an action by an infant plaintiff, is expressly pro- vided for by section 316 of the Code ; and if costs are adjudged against such infant, payment thereof may be enforced against the guardian by attachment. This attachment means a process in the nature of a ca. sa., and the issuing of it results simply from the adjudication against the infant plaintiff. It is, therefore, not strictly neces- sary for the defendant to first issue his execution against the infant, in order to fasten the liability upon the guardian, and thus become entitled to his attachment, though this perhaps is the better practice. Nor is there any necessity for an order of the court to first bring the guardian into contempt before the attachment can issue. Orantman v. Thrall, 31 How. 464. The poverty of the guardian is of .course no defense to a motion for the attachment. lb. If there is a fund in court belonging to the infant, and the court is satisfied that the action was brought in good faith by the guardian, and with a bona fide intent to benefit the infant, the defendant's costs may be directed by the court to be paid out of such fund. Waring v. Crane, 2 Paige, 79 ; Taner v. Ivie, 2 Ves. Sr. 466 ; Pearce v. Pearce, 9 Ves. 548 ; WMtaker v. Mar ■ lar, 1 Cox, 285. A plaintiff is personally responsible for costs, though he was an infant when the action was commenced, if, on coming of age, he assumes and continues it ; but if, on coming of age, he refuses to proceed with it, he is not so responsible unless the action was properly brought, in which case he must pay the costs of his guardian, and also the costs of the defendant, on discontinu- OF LIABILITIES OF PARTICULAR PERSONS. 537 Liability of people for costs and of assignees pending suit. ance. Waring v. Crane, 2 Paige, 79 ; Turner v. Turner, 2 Stra. 708 ; Anonymous, 4 Madd. 461. If the court directs a discontinuance of an action during the in- fancy of the plaintiff, as being adverse to his interests, the costs must be paid by his guardian. Bowen v. Idley, 6 Paige, 46, 53. It is only a very special case that will justify the court in granting an extra allowance against an infant in any event. Union Ins. Co. v. Van Rensselaer, 4 Paige, 85. Section 4. Liability of people for costs. a. In general. In all civil actions prosecuted in the name of the people of this State by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant' s costs, which shall not be recov- ered of the people Jill after the execution issued therefor against such private party and returned unsatisfied. Code, § 319. In an action prosecuted in the name of the people of this State for the recovery of money or property, or to establish a right or claim for the benefit of any county, city, town, village, corpora- tion or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prose- cuted and not against the people. Code, § 320. Actions commenced by the district attorney in the name of the people, under the act of April 15, 1857, establishing "the metro- politan police district," etc. (see Laws 1857, ch. 628, § 21), are not within the provisions of section 320 of the Code, and, where defendants succeed in such actions, the people are liable for the costs of the defense, to be paid from the State treasury. People v. Tremain, 17 How. 10 ; reversed, on another point, id. 142 ; S. O, 29 Barb. 96. On sufficient facts shown, an extra allow- ance may be granted against the people of the State, bringing an action as such, as well as against any private individual. People v. Clarke, 9 N. Y. (5 Seld.) 349; affirming S. O, 11 Barb. 337. Section 5. Liability of assignees pending suit. a. In general. In actions in which the cause of action shall, by assignment, after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs in the same Vol. III. — 68 538 OF LIABILITIES OF PARTICULAR PERSONS. Liability of attorneys for costs. manner as if he were a party, and payment thereof may be enforced by attachment. Code, § 321. The liability of any one for costs, under this section of the Code, is no greater than if he were the original party who com- menced the action. Hence, an assignee in trust for the benefit of third persons does not become liable, under its provisions, unless he is also liable under section 317 of the Code. Conger v. The Hudson River R. R. Co., 7 Abb. 255. The assignment of an interest in a demand as collateral to a debt does not thereby render the assignee liable for costs under the provisions of this section, where the assignor still remains liable for the debt until paid, and himself continues the prosecu- tion of the action. Wolcott v. Holcomb, 31 1ST. Y. (4 Tiff.) 125. If, however, the assignee is interested in and assists to carry on the action, he becomes liable for costs. Schoolcraft v. Lathrop, 5 Cow. 17 ; Carnahan v. Pond, 15 Abb. 194. If an assignee becomes liable at all, pending the action, he is liable for the costs which had accrued before, as well as those which may arise after the assignment. Jordan v. Sherwood, 10 Wend. 622 ; Miller v. Franklin, 20 id. 630 ; Creighton v. Inger- soll, 20 Barb. 541. See Richardson v. White, 27 How. 155. The provisions of section 321 of the Code are broader than the former practice of the courts, or the corresponding provisions of the Revised Statutes. 2 R. S. 619, § 44. The former embrace the case of one defending an action in the name of the defendant on the record, and of a respondent on appeal ; whereas the latter only made one "bringing suit " in the name of another liable for costs. Miller v. Adsit, 18 Wend. 672 ; Bendemagle v. Cocks, 19 id. 151 ; Ryers v. Hedges, 1 Hill, 646. The provisions of the Code, however, require that the cause of action should have become the property of the person sought to be charged, by means of an assignment or otherwise. Wolcott v. Holcomb, 31 N. Y. (4 Tiff.) 126. Section 6. Liability of attorneys for costs. a. In general. In the cases where, according to the provisions of the statute, a defendant, at the commencement of a suit, is entitled to require security for costs, the attorney for the plain- tiff is himself liable for such costs, to an amount not exceeding $100, until security for costs is filed pursuant to the statute, whether such security shall have been required by the defendant or not. 2 R. S. 621, § 7 (see vol. 2, 564, 570, 571). The attorney OF LIABILITIES OF PARTICULAR PERSONS. 539 Non-resident clients — In other cases. may, however, relieve himself from such liability by filing secur- ity for costs, and giving notice to the defendant or his attorney. 2 R. S. 621, § 8. b. Non-resident clients. In order to compel the payment of costs by the attorney, in case of a non-resident plaintiff, it must appear affirmatively that the plaintiff was a non-resident at the time the action was commenced. Moir v. Brown, 9, How. 270 ; Long v. Hall, 1 Code R. H". S. 114 ; S. O, 3 Sandf. 729 ; Alexan- der v. Carpenter, 3 Denio, 266 (vol. 2, 564-571). By obtaining an order that the plaintiff file security for costs, the defendant does not abandon his claim on the plaintiff's attor- ney for their payment ; and the latter remains liable until secur- ity is actually filed. Boyce v. Bates, 8 How. 495. And this liability may be enforced by an execution against the personal property of the attorney, but in no other way. Boyce v. Bates, 8 How. 495. c. In other cases. An attorney commencing an action with- out being retained for that purpose, and failing in it, will be required to pay the defendant's costs. Anonymous, 2 Cow. 589. And, in some cases, attorneys will be required to pay costs, as -where they are incurred solely by their gross negligence or fraud, even though duly retained in the action. CHAPTER VII. ATTOENEY AND COUNSEL PEES. AKTICLE I. GENERALLY CONSIDERED. Section 1. Attorney's fees, how regulated. a. In general. The old fee-bill, which, was formerly the measure of compensation between the attorney and client, has been abolished by the Code (section 303), and the attorney's com- pensation for his services is now governed wholly by the express or implied agreement between him and his client. Stow v. Ham- lin, 11 How. 452 ; Moore v. Westervelt, 3 Sandf. 762. In the absence of any express agreement between them, the attorney is entitled to such compensation as his services are reasonably worth. lb. ; Garr v. Mairet, 1 Hilt. 498 ; Bartle v. Oilman, 18 N. Y. (4 Smith) 260 ; S. C, 17 How. 1. It is no longer illegal for an attorney to enter into a stipula- tion with his client, to receive for his compensation a share of the proceeds of the action brought by him {Benedict v. Stuart, 23 Barb. 420), unless the action be brought for land, in which case such an agreement between the attorney and client would amount to a conveyance of land held adversely, and is expressly prohibited by statute. 2 E,. S. 691. And so an agreement by an attorney, on commencing an action, tha.t he will indemnify the client against the costs which may be recovered against him therein, is void for champerty and maintenance, notwithstanding section 303 of the Code of Pro- cedure. Brotherson v. Gonsalus, 26 How. 213. But it is not unlawful for an attorney to purchase a judgment, for the pur- pose of enforcing it by execution. lb. Notwithstanding the removal, by the Code, of the restrictions formerly existing, the attorney will not be allowed to use his liberty of agreement as a means of extortion from his client, the court still retaining the power of looking into the arrangements between attorney and client, with a view to the protection of the latter in a proper case. Barry v. Whitney, 3 Sandf. 696 ; S. C, 1 Code R. N. S. ATTOENEY AND COUNSEL PEES. 541 Eight to sue for — Lien for costs. 101 ; Benedict v. Stuart, 23 Barb. 420. And the general law- regulating transactions between trustees and the beneficiaries of their trust is applicable to the relation of the attorney to his client. See Howell v. Barker, 4 Johns. Ch. 118 ; Howell v. Ran- som, 11 Paige, 538 ; Evans v. Ellis, 5 Denio, 640 ; affirming Ellis v. Messerire, 11 Paige, 467 ; Ford v. Harrington, 16 N. Y. (2 Smith) 285. An agreement between an attorney and his client, by which the right of the former to recover fees for his services is made contingent upon his success in the action, is valid, though not reduced to writing. Fitch v. Gardenier, 2 Keyes, 516. And the attorney' s right to compensation for services rendered in one matter is not forfeited by his misconduct and breach of trust in another matter, entirely distinct from the first. Currie v. Oowles, 6 Bosw. 452. b. Right to sue for. An attorney has a right to bring suit to recover the value of services rendered for his client, but proof of the value of such services must be given on the trial. Eas- ton v. Smith, 1 E. D. Smith, 318 ; Stow v. Hamlin, 11 How. 452 ; Moore v. Westervelt, 3 Sandf. 762. And in such an action the plaintiff is not entitled to recover on no other proof than that shown by the judgment roll. Stow v. Hamlin, 11 How. 452. It seems that, where an attorney is conducting several actions for a party, he does not bar his subsequent right to a recovery for services, by commencing an action against his client and attach- ing his property. Porter v. Ruckman, 38 K Y. (11 Tiff.) 210 ; S. C., 6 Trans. App. 65. Section 2. lien for costs. a. In general. The Code has not abolished the attorney's lien for his costs. Rooney v. Second Ave. R. R. Co., 18 N. Y. (4 Smith) 368 ; Adams v. Fox, 40 N. Y. (1 Hand) 577. See Creighton v. Ingersoll, 20 Barb. 541 ; Ward v. Wordsworth, 1 E. D. Smith, 598 ; S. C. , 9 How. 16 ; Sherwood v. Buffalo, etc., R. R., 12 id. 136 ; Hall v. Ayer, 9 Abb. 220 ; S. C, 19 How. 91 ; Haight v. Holcomb, 16 id. 173 ; S. C, 7 Abb. 210 ; but see, contra, Davenport y. Ludlow, 4 How. 337; S. C, 3 Code E. 66. For his general balance of costs, an attorney has a lien on all papers, or money, or other property belonging exclusively to his client, which may come into his possession. St. John v. Dif- fendorf, 12 Wend. 261 ; Ex.parte Sterling, 16 Yes. 258 ; Rex v. Sankey, 5 Ad. & El. 423 ; Jones v. Turnbull, 2 Mees. & Wels. • 542 ATTORNEY AND COUNSEL FEES. Lien for coats. 601 ; Friswell v. King, 15 Sim. 191 ; Ksdale v. Oxenham, 3 Barn. & Ores. 225. And for his fees in an action, whether for debt or unliquidated damages, he has a lien on whatever is recovered in the action, even though it does not come into his possession. Rasguin v. Knickerbocker Stage Co., 12 Abb. 324 ; Rooney v. Second Ave. R. R., 18 N. Y. (4 Smith) 368. And he has a lien not only upon the judgment, but also upon all collateral securities for its satis- faction. Shackelton v. Hart, 12 Abb. 325 (n.) ; S. C, 20 How. 39. The attorney' s lien is not limited to the amount of the statu- tory costs, but extends to the entire amount of compensation agreed upon between him and his client. Hall v. Ayer, 9 Abb. 220 ; S. C, 19 How. 91. See, also, Ackerman v. Ackerman, 14 Abb. 229 ; Rooney v. Second Ave. R. R., 18 N. Y. (4 Smith) 368. Contra, Haight v. Holcomb, 16 How. 173 ; S. C, 7 Abb. 210. An attorney, however, has not a lien on a judgment for a general balance due him. St. John v. Diefendorf, 12 Wend. 261 ; Lucas v. Peacock, 9 Beav. 177; Phillips v. Stagg, 2 Edw. Ch. 108; Watson v. Maskell, 1 Bing. (N. C.) 366. In any case, an attorney' s lien is destroyed by an assignment of his claim to another person and the recovery of a judgment for the amount by the assignee ; and a subsequent purchase of the judgment by the attorney will not serve to revive the lien {Chappell v. Dann, 21 Barb. 17) ; so he loses his lien on prop- erty in his possession if, by his own act, he parts with such pos- session to his client, even by mistake {Dicas v. Stockley, 7 Carr & P. 587) ; but if the property be unlawfully taken from his posses- sion, the lien continues. lb. The acceptance of any security for the claim (Cowell v. Simp- son, 16' Ves. 275), or of a note in payment, suspends the lien {Lambert v. Buckmaster, 2 Barn. & Cr. 616) ; and in the latter case the attorney cannot retain the client' s property as security for the payment of the note. lb. But if, at the time the note is dishonored, any property of the client remains in the possession of the attorney, his lien thereon revives. Stevenson v. Blakelock, 1 Maule & Selw. 535 ; Davies v. Lowndes, 3 C. B. 808. Where the client offers security for the amount shown to be due, the attorney must give up the papers on which he asserts a lien for his claim. Cunningham v. Widing, 5 Abb. 413. b. Rights of lien against third parties. The attorney's lien is valid on notice as against the adverse party to the action, or ATTORNEY AND COUNSEL FEES. 543 Rights of lien against third parties. any other third person {Rooney v. Second Av. R. R., 18 BT. Y. [4 Smith] 368 ; Wilkins v. Batterman, 4 Barb. 47 ; Martin v. Hawks, 15 Johns. 405 ; McDowell v. Second Av. R. R., 4 Bosw. 670) ; and it matters not whether such notice or information pro- ceeds from the attorney, or whether such adverse party or third person suspects the existence of the lien and endeavors to evade it. Ten Broeck v. Be Witt, 10 Wend. 617 ; Wilkins v. Batterman, 4 Barb. 47; Rasquinv. Knickerbocker Stage Co., 12 Abb. 324; S. C, 21 How. 293. Unless there is some collusion to deprive the attorney of his costs the parties to an action can settle it, if done before judg- ment, without consulting him {McDowell v. Second Av. R. R. Co., 4 Bosw. 670; Brown v. Comstock, 10 Barb. 67; S. C, 3 Code R. 142 ; Benedict v. Harlow, 5 How. 347) ; but if such settle- ment is plainly made in fraud of the attorney' s rights, he may continue the action and take judgment for his costs {Rasquin v. Knickerbocker Stage Co., 12 Abb. 324; S. C, 21 How. 293; Keenan v. Durflinger, 12 id. 327 (n.) ; S. C, 19 id. 153 ; Owen v. Mason, 18 id. 156 ; Wood v. Northwest Pres. Church, 7 Abb. 210 (n.)), except in an action for a divorce, in which case the attorney cannot insist upon proceeding upon the ground that his costs are not paid. Kirby v. Kirby, 1 Paige, 565. In case a judgment has been entered on which the attorney has a lien for costs, a collusive settlement between the parties in fraud of his rights will not relieve the debtor from liability to him for such costs. Rooney v. Second Av. R. R. Co., 18 N. Y. (4 Smith) 368 ; Ward v. Wordsworth, 1 E. D. Smith, 598 ; S. C, 9 How. 16 ; Haight v. Holcomb, 16 id. 173 ; S. C, 7 Abb. 210. Where an action is collusively settled before judgment, the plaintiff's attorney will not be allowed an order requiring the defendants to pay the costs. Talcott v. Bronson, 4 Paige, 501. His only remedy is to proceed in the action as above mentioned, and he must so proceed at his own risk, and conclusively show that the settlement was made in bad faith, with the intent of evad- ing his claim ; and on a failure to do so, his proceedings subse- quent to notice of settlement will be set aside. McDowell v. Second Av. R. .R. Co., 4 Bosw. 670 ; Nelson v. Wilson, 6 Bing. 568 ; Clark v. Smith, 6 Man. & Gr. 1051 ; Francis v. Webb, 7 C. B. 731. The defendant's attorney is not allowed to object to any settle- ment made previous to the decision of the cause {Shank v. Shoe- 544 ATTORNEY AND COUNSEL PEES. Rights of lien against third parties. maker, 18 N. Y. [4 Smith] 489 ; Quested v. Callis, 10 Mees. & Wels. 18), but after judgment his lien is protected to the same extent as that of the plaintiff's attorney. Power v. Kent, 1 Cow. 172. Where a satisfaction of judgment is entered in fraud of the attorney's lien, it will be set aside on his motion ; but the attor- ney is not at liberty to disregard such satisfaction, and to issue execution on the judgment before the entry of satisfaction is vacated. Ackerman v. Ackerman, 14 Abb. 229 ; Mooney v. Second Avenue M. B. Co., 18 N. Y. (4 Smith) 368. An attorney cannot enforce his lien against the person of the adverse party, if his client has released him, even if such release was collusively made. Martin v. Francis, 1 Chit. 241 ; Marr v. Smith, 4 Barn. & Aid. 466. Where an application is made to the court to interpose in order that the lien of an attorney may be protected, it is within the power of such court to order a reference, to determine the existence and extent of such lien, and the client cannot claim a right to have a jury trial. Wilkins v. Carmichael, 1 Doug. 100 ; Turwin v. Gibson, 3 Atk. 720; Ackerman v. Ackerman, 14 Abb. 220 ; reversing S. C, 11 id. 256. But see, contra, Fox v. Fox, 24 How. 409 ; HaigM v. Holcomb, 16 How. 173 ; S. C, 7 Abb. 210. CHAPTER VIII. FEES OE OEEICEES OE THE COUET. ARTICLE I. IK GENERAL. Section 1. Fees of the court. a. In general. The old fee-bill, as provided for in the Eevised Statutes, has been repealed in all its provisions, so far as they relate to clerk's fees for his services in civil actions {People v. Supervisors of Monroe, 15 How. 225), and section 312 of the Code provides that he shall receive, On every trial, from the party bringing it on, $1 ; on entering a judgment by filing transcript, six cents. On entering judgment, fifty cents, except in courts where the clerks are salaried officers, and in such courts $1. He shall receive no other fee for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words. Code, § 312. The elerk is entitled to his trial fee, on trials of issues of law, as well as on trials of issues of fact ; but the right to such fee does not extend to causes on the calendar which are not tried, nor to trials before referees. 'Cleric's Fees, 5 How. 11 ; S. C, 3 Code R. 102. Nor does it extend to a cause called at the circuit, but referred by an order there granted, or to an appeal from a mere order. lb. Neither is he entitled to such fee, on the dismissal of a com- plaint for want of progress in the action. Tillspaugh v. Dick, 8 How. 33. Nor on an application to the court for judgment upon failure to answer. Chapman v. Lemon, 11 How. 235. The fee will be allowed, however, upon an appeal from a judg- ment, whether of the same court or of another court, either in an action or special proceeding {Clerk's Fees, 5 How. 11 ; S. C, 3 Code R. 102 ; Code, § 318) ; and also upon an argument at gen- eral term, of questions reserved at the trial. Wilcox v. Curtiss, 10 How. 91. The clerk is not entitled to charge in any case whatever, for entering any paper or order ; nor for attending on the hearing of Vol. III.— 69 546 FEES OF OFFICERS OF THE COURT. Payment of his fees — Fees of sheriff. a motion of any kind ; nor can he make any additional charges for his certificate of the correctness of copies of papers. Clertfs Fees, 5 How. 11 ; S. C, 3 Code R. 102. b. Payment of Ms fees. The trial fee is to be paid by the party bringing on the trial. Code, § 312. The fee for entering judgment is to be charged against the party in whose favor it is entered, and this is the rule, even though the costs of the action are awarded to the opposite party. Burnett v. Westfall, 15 How. 430. The clerk, before performing any service, is entitled to insist upon the payment of his fees in advance. If, however, he per- forms the service without insisting upon payment therefor, he gives credit to the party who is bound to pay them, and must look to him personally. On being paid his fee, the clerk cannot refuse the performance of the service required on account of non-payment by the party for some previous official service, on which he gave credit. Purdy v. Peters, 23 How. 328 ; S. C, 15 Abb. 160. The fee allowed to the clerk for entering judgment means entering the judgment in the judgment book (Bentley v. Jones, 4 How. 335 ; S. C, 3 Code R. 37) ; and is not chargeable till the perfecting of the judgment. Matter of Cleric of Albany County, 5 How. 11 ; S. O, 3 Code R. 102. Section 2. Fees of sheriff. a. In civil actions. The fees allowed to sheriffs for their ser- vices in civil actions, in all of the counties of this State except- ing New York, Kings and Westchester, as prescribed by statute, are as follows : For serving a summons, or summons and complaint, or sum- mons and notice of object of action, or any other paper issued in any action, the sum of $1 ; and for necessary travel in mak- ing such service the sum of six cents per mile to and from the place of service, to be computed in all cases from the court-house of the county ; and if there are two or more court-houses, to be computed from the nearest to the place of service. Laws of 1872, ch. 26. See Laws of 1871, ch. 415, § 1. For taking a bond of a plaintiff in proceedings for the claim and delivery of personal property, or for taking a bond from either the plaintiff or defendant, or any other party, in any case where he is authorized to do so, the sheriff is entitled to a fee of FEES OF OFFICERS OF THE COURT. 547 In civil actions — Fees on executions. fifty cents. Laws of 1871, ch. 415, § 1. And for a certified copy of every such bond, twenty-five cents. lb. For taking a bond for the liberties of the jail, $1. Summon- ing a jury upon a writ of inquiry, or in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inquisition, $2.50. For summoning a jury in pursuance of the warrant or precept of commissioners appointed to inquire concerning the lunacy, idiocy or habitual drunkenness of any person, for each juror summoned, twenty-five cents ; for attending such jury, when required, $1. For summoning a jury in any other case, $1, and for attending the same when required, $1. Attending before any officer with a prisoner, for the purpose of having him surrendered in exoneration of his bail, or attend- ing to receive a prisoner so surrendered, who was not committed at the time, and receiving such prisoner into his custody in either case, the defendant so served shall answer to the plaintiff; and, in such case, the judgment, if rendered in favor of the. plaintiff, shall be against all the defendants in the same manner as if all had been served with process." 2 R. S. 377 (391), § 1. See Merrifield v. Cooley, 4 How. 272 ; Lahey v. Kingon, 22 id. 209 ; S. C, 13 Abb. 192 ; Northern Bank of Kentucky v. Wright, 5 Rob. 604. And it NATURE OF JUDGMENT, AND THE RELIEF. 599 Proceedings under Revised Statutes to enforce separate liability. seems that the judgment cannot be entered otherwise than in such form. Stannard v. Mattice, 7 How. 4 ; Crandall v. Beach, id. 271 ; Bridge v. Pay son, 5 Sandf. 210 ; Mechanics and Farm- ers' Bank v. Rider, 5 How. 401. It should, however, be observed that this rule has no applica- tion in a case where the heirs of a person dying intestate are sued for his debts. Although the statute, in such case (see Laws of 1837, p. 537, §73), requires them to be sued together jointly, and not separately, it does not make them jointly liable as joint debtors^ Each is liable, severally, for his due proportion. Kel- logg v. Olmsted, 6 How. 487. The effect of the entry of a joint judgment against a party not served is to bind all property in which he has a joint interest (see Code, § 136) ; but such entry can have no effect whatever as to his separate estate or his person. lb. Nor is it even prima facie evidence of his liability, which must be rebutted. 2 R. S. 377 (392), § 2 ; Matter of Austin, 44 Barb. 434 ; Johnson v. Smith, 23 How. 444 ; S. C, 14 Abb. 421 ; Matter of Lowenstein, 7 How. 100. And no collateral proceeding can be sustained, nor can an action be brought merely upon the record of the judgment against such a person, without collateral proof of his liability. lb. ; Oakley v. Aspinwall, 4 N. Y. (4 Comst.) 513 ; S. C. before, 1 Duer, 1 ; 10 N. Y. Leg. Obs. 79 ; S. C. affirmed, 13 N. Y. (3 Kern.) 500. Where the circumstances under which a judgment of this description is obtained are such as to countenance suspicion that it was the result of fraud or connivance, it will be opened as against a defendant not served, for the purpose of letting in his defense. Cleveland v. Porter, 10 Abb. 407. Section 4. Proce^ings under Revised Statutes to enforce sepa- rate liability. By the provisions of the Revised Statutes (2 R. S. 377, 378 [391, 392] ), authority is given for proceedings against the defendants who have been served, similar to that conferred by section 136 of the Code. The statutes provide that if judgment be reversed, it "shall be against all the defendants, in the same manner as if all had been served with process." 2 R. S. 377 (391), § 1. And that "such judgment shall be conclusive evi- dence of the liability of the defendant who was personally served with process in the suit, or who appeared therein ; but against every other defendant, it shall be evidence only of the extent of the plaintiffs demand, after the liability of such defendant shall 600 NATURE OF JUDGMENT, AND THE RELIEF. Proceedings under Code — Summons to show cauBe, when proper. have been established by other evidence." 2 R. S. 877 (391), §2. Further provisions are made by the statute, with respect to the issuing of execution under a judgment so entered. 2 R. S. 377 (391), §§ 3, 4 ; and see Execution, post. Where judgment has been obtained against two defendants as above described, it may be rendered operative as a judgment against both in the following manner : A second action may be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serv- ing process only on the defendant not served in the former action, and a like judgment obtained against the latter defendant. Such an action is not superseded by the provisions of section 375 of the Code, the remedy therein provided being merely cumulative. Prince v. Gujas, 7 Rob. 76 ; Dean v. Mdridge, 29 How. 218. But see, contra, Lane v. Salter, 4 Rob. 239. Section 5. Proceedings under Code. The proceedings author- ized by the Code for the enforcement of a judgment originally taken as above, is regulated by the special provisions of section 375. This section provides that "when a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been origin- ally summoned." The proceedings thus described is confined to courts of record, and hence has no application to a judgment in a justice's court, a transcript of which has been filed in the office of the county clerk. Johnson v. Smith, 14 Abb. 421 ; S. C, 23 How. 444 ; Prince v. Gujas, 7 Rob. 76 ; Ticknor v. Ker^iedy, 4 Abb. N". S. 417; reversing S. C, 3 id. 387. And the proceeding not being a new action, the party served cannot have it removed into a federal court. Fairchild v. Durand, 8 Abb. 305. See Kranshaar v. New Haven Steamboat Co., 7 Rob. 356. a. Summons to show cause, when proper. The Code further provides, that "in case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment may, after the expiration of three years from the time of granting letters testamentary, or of administration, upon the estate of the testator or intestate, be summoned to show cause NATURE OF JUDGMENT, AND THE RELIEF. 601 l Nature, form, contents and service of summons — Affidavit of amount due, why the judgment should not be enforced against the estate of the judgment debtor in their hands, respectively, and the per- sonal ^representatives of a deceased judgment debtor may be so summoned at any time within one year after their appointment.' ' Code, § 376. By the term "judgment debtor," in this section of the Code, is meant, one against whom the judgment is conclu- sive and final ; and where a joint debtor has not been served with process, but judgment in form is entered against him, under section 136 of the Code, he is not to be deemed as within the pro- visions of section 376. Kellogg v. Olmsted, 6 How. 487 ; Foster v. Wood, 30 id. 284; S. C, lAbb. N. S. 150. o. Nature of summons. The summons required in the pro- ceeding under consideration is peculiar in its nature, performing, in fact, the office of a complaint, as well as that of process strictly considered. It must contain a description of the judg- ment, which, in connection with the affidavit required, furnishes the defendant with all the information necessary to enable him to prepare his defense. The notice of relief demanded is also peculiar, for, as we have already seen, it assumes the form and answers the purposes of an order to show cause. See Code, §§ 375-377. c. Form, contents and service of summons. The summons must be subscribed by the judgment creditor, his representa- tives or attorney ; it must describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons. It is served in like manner as the original summons. Code, § 377. The form of the summons thus prescribed must be strictly and literally followed, and should, in no respect, be varied, nor should a notice of an application for further relief be added. See Mills v. Thurshy, 12 How. 3S5 ; S. C, 2 Abb. 432. It is unnecessary to specify in the summons the time or place to show cause, but the summons will not be vitiated by so doing. Townsend v. Newell, 14 Abb. 340. Defendants, against whom judgment has already been obtained, need not be named as defendants in the summons. Johnson v. Smith, 23 How. 444 ; S. C, 14 Abb. 421. d. Affidavit of amount due. The summons must be accom- panied by an affidavit of the person subscribing it, that the judgment has not been satisfied to his knowledge or information and belief, and must specify the amount due thereon. Code, Vol. Ill— 76 602 NATURE OF JUDGMENT, AND THE RELIEF. Pleadings of party summond and judgment creditor — Form of judgment. § 378. The mode of service of the affidavit is not prescribed, but it must doubtless accompany the summons in its service as well as in its preparation, and, as in the case of a complaint, a copy may be held sufficient for the purpose. Where the case is, however, important, and likely to be contested, it would be the better practice to serve a duplicate original. See 2 Whit. Pr. 572. e. Pleadings of party summoned. When the debtor is sum- moned under section 376 of the Code, he will be at liberty to deny the judgment, or to set up any defense which may have subsequently arisen to the judgment, such as payment, release, discharge in bankruptcy and the like, they all being defenses to the judgment. Gibson v. Van Derzee, 14 Abb. N. S. Ill ; Code, § 379. When he is proceeded against according to section 375, his range of defense is wider, and "he may make any defense which he might have made to the action, if the summons had been served on him at the time when the same was originally commenced and such defense had been then interposed to such action." lb. See Berlin v. Hall, 48 Barb. 442 ; Gibson v. Van Derzee, 14 Abb. 1ST. S. 111. It is not competent for the defendant to demur, and the answer is, in form, an answer to the summons and affidavit. In its essential parts it is precisely the same as an answer to a com- plaint, and it should be verified in the like cases and manner as the answer in an action. Code, § 381. /. Pleadings of judgment creditor. Upon the answer being served issue should be joined by the party issuing the summons by the service of a demurrer or reply to the answer. Code, § 380. A reply is unnecessary unless the answer sets up new matter. See Mills v. Thursby, 12 How. 385 : S. C, 2 Abb. 432. The party summoned may demur to the reply when it contains any thing beyond a mere denial. Code, § 380. The reply should be verified, subject to the same rules as the reply in an action Code, § 381. g. Issues, how tried. The issues when joined are brought to trial and tried in the same manner as in an action. Code, § 380. 7i. Form of judgment. The Code provides that judgment may be given in the same manner as in an action (§ 380). Where a party is summoned under section 375 it will be the ordinary money judgment, or such other adjudication as may be proper. But under section 376 the judgment will be special. It must be taken strictly in rem as against the estate sought to be charged, NATURE OF JUDGMENT, AND THE RELIEF. 603 Separate judgments. in the hands of heirs, beneficiaries, or representatives, as the case may be. A personal judgment against parties standing in a representative capacity will be clearly improper. Mills v. Thurs- by, 11 How. 129 ; Same v. Same, 2 Abb. 432 ; S. C, 12 How. 385. , Costs may be awarded, because the judgment may be given in the same manner as in an action. lb. See Code, § 307, last clause of section. If the time prescribed in the summons is suffered to elapse, and no cause is shown, the plaintiff, on the usual proof of service and that no answer has been received, should make application for judgment to the officer, and at the time and place mentioned in the summons ; and the order for judgment may be taken by default, and as of course on the requisite proof. The applica- tion will be ex parte, and the entry of judgment will follow in the usual manner. See 2 Whit. Pr. 573. ARTICLE IV. SEPARATE JUDGMENTS. Section 1. When a several judgment should be rendered. The application <5f the rule heretofore stated (ante, art. 3, § 1), to the effect that a several judgment may not be rendered where the interests of the defendants are strictly and technically joint, is of quite limited scope ; and whenever such interests are several or severable in their nature the rule has no application, and sep- arate judgment may be entered, either for or against any one or more, or against some and in favor of others of such defendants, according to the proof upon the trial. See Code, § 274. The rule may be stated to be that, where there cannot be a joint judgment for damages against all the defendants, separate judg- ments may be pronounced, the power to do so being expressly given by the terms of sections 118 and 274 of the Code ; and this power is constantly exercised by the courts, even in actions at law. Gillilan v. Norton, 33 How. 373 ; S. C, 6 Rob. 546. As to the propriety of a separate judgment where the rights or liabilities of the parties are several there cannot exist the slightest doubt ; and the only difficulty consists in the applica- tion of the rule in actions against several defendants as jointly liable. The different cases will be considered in the three follow- ing sections. 604 NATURE OF JUDGMENT, AND THE RELIEF. — — , On contracts, joint and several. Section 2. On joint contracts. It was a well-settled rule at common law that, in an action against several defendants on an alleged joint contract, no recovery could be had against any of them unless a joint liability on a contract made by all of them was established. See Mitchell v. Ostrom, 2 Hill, 520. But this rule has been modified by the Code (§§ 136, 274), and where the plaintiff has in his complaint treated the indebtedness or liability as joint, a several judgment may nevertheless be entered if, upon the evidence given, a separate liability is shown. See Quigley v. Walter, 2 Sweeny, 175 ; Fielden v. Lahens, 6 Abb. N. S. 341 ; S. C, 3 Trans. App. 218 ; 33 How. 620 (n) ; Pruyn v. Black, 21 N. Y. (4 Smith) 300 ; BrumsTcill v. James, 11 N. Y. (1 Kern.) 294 ; McQuire v. Johnson, 2 Lans. 305 ; Denman v. Prince, 40 Barb. 213 ; Wilherhead v. Allen, 28 id. 661 ; Bonsteel v. Vanderoilt, 21 id. 26 ; People v. Oram, 8 How. 151. And this is true not only in actions upon contract, but also in an action for a tort (lb. ; Decker v. Gardiner, 8 N. Y. [4 Seld.J 29 ; Daniels v. Lyon, 9 N. Y. [5 Seld.] 549 ; Wagener v. Bill, 19 Barb. 321; Forsyth v. Bdminston, 11 How. 408 ; Montfort v. Hughes, 3 E. D. Smith, 591), and for the recovery of specific property. Woodburn v. Chamberlin, 17 Barb. 446. The same rule has been held to be applicable to the case of co-plaintiffs, and the defendant, upon showing that one of sev- eral plaintiffs is the sole party in interest, may avail himself of a set-off, in all respects as if the action had been brought in the name of such plaintiff alone. Cowles v. Cowles, 9 How. 361. See Palmer v. Davis, 23 N. Y (1 Tiff.) 242. So where an action is brought against two or more upon a joint contract, and an equitable defense peculiar to one defendant is set up by him, the court may give judgment for the plaintiff against the other defendants, and for the one defendant against the plaintiff. Barker v. Cocks, 50 N. Y. (5 Sick.) 689. Section 3. On joint and several contracts. The test as to the propriety of a several judgment, in actions on joint and several contracts, is to be found in the answer to the question, whether the circumstances are in fact such that a several action might be brought against any party. See De Bidder v. Schermerhorn, 10 Barb. 638 ; Brainard v. Jones, 11 How. 569 ; Harrington v. Higham, 15 Barb. 524 ; Parker v. Jackson, 16 id. 33 ; Mcintosh v. Ensign, 28 N. Y. (1 Tiff.) 169 ; Quigley v. Walter, 2 Swee- ny, 175. NATURE OF JUDGMENT, AND THE RELIEF. 605 On a several contract alleged to be joint — Severing actions or parties. Where, in any such action, one defendant only has been served, the plaintiff may, if he choose, proceed against him as if he were the sole defendant. Stannard v. Mattice, 7 How. 4. But the rule is otherwise if the defendants are liable jointly and not also severally. In the latter case the judgment must, in form, be entered against both defendants. lb. Section 4. On a several contract alleged to be joint. A plain- tiff may recover against one of several defendants on a several contract, notwithstanding he has alleged in his complaint that it is joint (see ante, § 2) ; but an action against two defend- ants, upon a joint and several contract as joint, cannot be changed to an action upon it as several, unless one of the defendants is stricken from the record as a party, or has a defense personal to himself. See Brown v. Richardson, 4 Rob. 603 ; Barker v. Codes, 50 N. Y. (5 Sick.) 689. ARTICLE V. SEVERING ACTIONS OR PARTIES. Section 1. When judgment should be against some and in favor of other defendants. The cases in which judgment should be rendered against some, and in favor of other defendants, have aleady been noticed in the preceding article. The general rule is that, whenever, in an action against several defendants as jointly liable, it appears upon the trial that some of them are liable and others not, judgment should be awarded against the former and in favor of the latter. See ante, art. 4, §§ 1 and 2, and cases there cited. Section 2. When judgment must be rendered in favor of some and against other defendants. The power conferred by section 274 of the Code, to render judgment for or against one or more of several defendants, is not discretionary ; and a refusal to exer- cise such power in the proper cases is a ground of exception and appeal. See Oowles v. Cowles, 9 How. 361 ; People v. Cram, 8 id. 151 ; Hubbell v. Meigs, 50 N. Y. (5 Sick.) 480, 489. ARTICLE VI. JUDGMENT BETWEEN SEVERAL DEFENDANTS. Section 1. Relief as between co-defendants, when granted. By the provisions of section 274 of the Code, the judgment in an 606 NATURE OF JUDGMENT, AND THE RELIEF. Judgment between several defendants — Relief to plaintiff. action " may determine the ultimate rights of the parties on each side as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled." But the court is not bound to make such determination without relief being asked on the trial. Decker v. Judson, 16 N. Y. (2 Smith) 439. And it seems that the only proper case in which defend- ants can have relief, against each other, is where they have appeared and answered, in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in and brought out by the litigation and investigation of that claim. See Mechanics and Traders' Sav. Inst. v. Roberts, 1 Abb. 381 ; Woodworth v. Bellows, 4 How. 24 ; S. C, 1 Code R. 129 ; Norbury v. Seely, 4 How. 73 ; S. C, 2 Code R. 47 ; Kay v. WMttaker, 44 N. Y. (5 Hand) 565. Although there can be no doubt that the Code permits affirma- tive relief to be given to a defendant as against the plaintiff, yet, as between co-defendants, such relief will be given only in some peculiar cases and in order to do complete justice (see Livingston v. Mildrum, 19 N. Y. $ Smith] 440 ; Stephens v. Hall, 2 Rob. 674), the courts being averse to making the exercise of the right gene- ral. Tracy v. New York Steam Faucet Co., 1 E. D. Smith, 349; Wells v. Smith, 7 Abb. 261. And, when such relief is granted in an action for ordinary relief, the proper course seems to be to allow the parties between whom the controversy arises, to serve statements in the nature of pleadings between themselves. See Becker v. Judson, 16 If.T. (2 Smith) 439 ; and see vol. 2, p. 476, ante. Under the former practice in chancery, when such relief was granted by and against defendants, it could only be on pleadings and proofs. Renwick v. Macomb, Hopk. 277 ; Elliott v. Pell, 1 Paige, 263 ; Jones v. Grant, 10 id. 348 ; Gonry v. Caul- field, 2 Ball. & B. 255 ; Chamley v. Dunsany, 2 Sch. & Lef. 718. And such practice has been recognized as still in existence under the Code. See Livingston v. Mildrum, 19 N. Y. (5 Smith) 440. ARTICLE VII. RELIEF TO PLAINTIFF. Section 1. In case of default. The Code makes an important distinction as to the measure of relief which may be granted to NATURE OF JUDGMENT, AND THE RELIEF. 607 In case of answer. the plaintiff against a defendant who answers the complaint, and that which he may have against one who makes default. In the latter case the relief granted cannot, exceed that which the plain- tiff has demanded in his complaint. Code, § 275. And where the plaintiff in the complaint asked to have notes to the amount of $5,000 delivered up and canceled, and to have a judgment for $2,000, it was held that a judgment for $7,000 exceeded the relief sought in the complaint, and the judgment was reversed. Hurd v. Leavenworth, 1 Code R. N. S. 278. So, in an action against several defendants to obtain a partition of certain premises, none of the defendants having answered, and the action having been referred, judgment was rendered on the referee's report for par- tition, and against one of the defendants for rent, it was held that, as the plaintiff's complaint did not ask for an accounting as to rents, he could not have such additional relief in the action. Bullwinker v. Ryker, 12 Abb. 311. Section 2. In case of answer. On the other hand, when the defendant puts in an answer, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. Code, § 275. This provision of the Code is in conformity to the former equity practice, where the complaint contained a general prayer for relief. (Boardman v. Davidson, 7 Abb. N. S. 439) ; and the plaintiff may be allowed any judgment to which, upon the allegations and proof, he is entitled, either at law or in equity (See v. Partridge, 2 Duer, 463 ; New York Ice Go. v. Northwestern Ins. Co., 23 N. Y. [9 Smith] 357 ; Armitage v. Pulver, 37 N. Y. [10 Tiff.] 494 ; S. C, 5 Trans. App. 186 ; Jones v. Butler, 20 How. 189 ; S. C, 30 Barb. 641), even though the complaint contains no prayer for general relief. Emery v. Pease, 20 N. Y. (6 Smith) 62. So", if the case which the plaintiff states entitles him to any remedy, either legal or equitable, his complaint is not to be dis- missed because he has prayed for a judgment to which he is not entitled. lb. See Marquat v. Marquat, 12 N. Y. (2 Kern.) 336 ; Barlow v. Scott, 24 N. Y. (10 Smith) 40. See Cowenhoven v. City of Brooklyn, 38 Barb. 9 ; Stevenson v. Buxton, 15 Abb. 352 ; Yon Beck v. Village of Rondout, 15 id. 48 ; Coleman v. Second Avenue R. R. Co., 38 N. Y. (11 Tiff.) 201 ; S. O, 6 Trans. App. 146 ; affirming S. C, 48 Barb. 371 ; Craig v. Hyde, 24 How. 313 ; Rome Exchange Bank v. Eames, 1 Keyes, 588 ; Baily v. Ryder, 10 N. Y. (6 Sel'd.) 363. 608 NATURE OF JUDGMENT, AND THE BELIEF. Relation of relief to complaint. Section 3. Eolation of relief to complaint. In order to deter- mine the rights and liabilities of the parties to an action under the Code, the pleadings are to be liberally construed {Miller v. White, 57 Barb. 504 ; S. C, 8 Abb. N. S. 46 ; Conaughty v. Nichols, 42 N. Y. [3 Hand] 83 ; Lyon v. Isett, 42 How. 155 ; S. C, 11 Abb. N. S. 353) ; and it is sufficient, if facts be stated in the complaint which warrant the judgment," although the grounds upon which the judgment was rendered were other than those evidently contemplated by the pleader. See lb. ; Wright v. Hooker, 10 N. Y. (6 Seld.) 51 ; Barker v. Clark, 12 Abb. N. S. 106. No trouble need arise as regards the form of the action, whether it be on the case or on contract ; for if the facts stated in the complaint give a right of action, the plaintiff can recover on that complaint. Scott v. Pilkington, 15 Abb. 280 ; Butterworth v. O'Brien, 24 How. 438 ; S. C, 39 Barb. 192 ; Read v. Lambert, 10 Abb. N. S. 428. Nor need the complaint be artistically drawn. lb.; Wood v. Brown, 34 N. Y. (7 Tiff.) 337 ; Emery v. Pease, 20 N. Y. (6 Smith) 62. But in order to recover the plaintiff must estab- lish his allegations by proof on the trial. Salter v. Ham, 31 N. Y. (4 Tiff.) 321. Where the complaint prays for a specific performance, or, in the event that cannot be compelled, for damages, the court will entertain the case and.award damages if performance cannot be enforced. Marquat v. Marquat, 12 N. Y. (2 Kern.) 336 ; reversing S. C, 7 How. 417 ; Oreason v. Keteltas, 17 N. Y. (3 Smith) 491 ; Barlow v. Scott, 24 N. Y. (10 Smith) 40 ; Woodward v. Harris, 2 Barb. 439 ; Wiswall v. McQ-own, id. 270. But if the allegations in the complaint do not make a case for a specific performance, but for damages, and the plaintiff fails in obtaining judgment for the latter, he cannot have judgment for the former on the evidence merely. Towle v. Jones, 1 Rob. 87 ; S. C, 19 Abb. 449 ; Ryder v. Jenny, 2 Rob. 56 ; Craig v. Hyde, 24 How. 313 ; Steven- son v. Buxton, 15 Abb. 352 ; reversing S. C, 8 id. 414. See Mills v. Tan Voorhies, 20 N. Y. (6 Smith) 412 ; S. C, 10 Abb. 152. In an action to recover back money obtained under fraudu- lent representations it is no objection to the success of the action that the fraud is not proved, if it appears that there should be a recovery as for money had and received. Byxbie v. Wood, 24 N. Y. (10 Smith) 607. NATURE OF JUDGMENT, AND THE EELIEF. 609 Relief to defendant. ■ — m . AKTICLE VIII. BELIEF TO DEFENDANT. Section 1. Affirmative relief. The court may, in giving judg- ment, grant to the defendant any affirmative relief to which he may be entitled. Code, § 274. But this provision of the Code is inapplicable to cases in which a complete determination of the controversy presented by the answer, and upon which the relief is demanded, cannot be had without the presence of other parties. See Smith v. Howard, 20 How. 151 ; Gummings v. Morris, 25 N. Y. (11 Smith) 625. And if a defendant only asks that the com- plaint be dismissed, it is too late to ask other relief on appeal. Garvey v. Jarvis, 54 Barb. 179. When affirmative relief, legal or equitable, is claimed by the defendant, the duty of bringing the cause to trial devolves upon him unless the plaintiff himself brings it on by notice. Roy v. T7iompson,B How. 253; S. C, 1 Duer, 636. Otherwise only a dismissal of the complaint can be had. lb. Thus, in an action "for the recovery of personal property it was held that the defend- ant, after issue joined, could not move for a dismissal of the com- plaint and at the same time for judgment for a return of the prop- erty. If he wishes judgment, he must notice the cause for trial. Potter v. Davison, 8 Abb. 43 ; Wilson v. Wheeler, 1 Code R. N. S. 402; S. C, 6 How. 49. Section 2. Relations between pleadings and relief. The right of the defendant to affirmative relief must appear by the plead- ings as well as the evidence, if any ; and a judgment cannot be given in his favor for a cause of action not set up by way of de- fense or counter-claim. Garvey v. Jarvis, 54 Barb. 179 ; Wright v. Delafield, 25 N. Y. (11 Smith) 266. Thus, where suit was com- menced by the plaintiff to stay proceedings at law in actions upon several promissory notes, and upon the defendant successfully defending on a pure defense, the court, besides dismissing, the complaint, also gave judgment for specific performance by the plaintiff, it was held that, as the answer was a pure defense, the court below properly dismissed the complaint, but improp- erly rendered other judgment on the pleadings in the case. lb. But where it appeared in evidence that the defendant was enti- tled to specific performance of a contract by the plaintiff, it was Vol. III.— 77 610 NATURE OF JUDGMENT, AND THE RELIEF. Divorce — Legal and equitable relief. held that judgment to that effect might properly be given in favor of the defendant, although the defense set up did not claim affirmative relief. Cythe v. La Fontain, 51 Barb. 186. Where an action was brought to annul an executory contract for a lease, on the ground of fraud, and the defendant set up a counter-claim for rent, it was held, that the cause of action being unsustained, the defendant might have judgment for his rent. Mayor, etc., of New York v. Wood, 4 Abb. N. S. 332. Section 3. Divorce. It seems that the defense of adultery can- not be interposed as a ground for affirmative relief in an action for a divorce a mensa et thoro, but in such an action, where the facts alleged in the complaint were disproved, and the answer, setting up the general bad conduct of the plaintiff, was substan- tiated, it was held, that the defendant was entitled to a judgment of divorce a mensa et thoro. McNamara v. McNamara, 2 Hilt. 547 ; S. C, 9 Abb. 18. ARTICLE IX. . LEGAL AND EQUITABLE RELIEF. Section 1. In general. The Code having abolished all dis- tinction between legal and equitable actions (See § 69), the necessity of bringing two actions, one at law and one in equity, in relation to the satme matter, no longer exists, and the same relief is to be granted in one action that would formerly have been granted only through the medium of two actions. Mot v. Sprague, 12 How. 355; Blair v. Claxton, 18 N. Y. (4 Smith) 529 ; Phillips v. Gorham, 17 N. Y. (3 Smith) 270 ; Crary v. Goodman, 12 N. Y. (2 Kern.) 266 ; Dobson v. Pearce, id. 156 ; S. C, 1 Abb. 97 ; Laub v. Buckmiller, 17 N. Y. (3 Smith) 620 ; McHenry v. Hazard, 45 N. Y. (6 Hand) 580. See Cramer v. Benton, 4 Lans. 291 ; S. C, 60 Barb. 216 ; Cole v. Reynolds, 18 N. Y. (4 Smith) 529 ; Gridley v. Gridley, 24 N. Y. (10 Smith) 130. Nor can the plaintiff be required to give a name to his action, but he may demand more than one kind of relief, and if the facts stated are such as may constitute one of two actions, which is the proper •one is to be determined on the trial. Hall v. Hall, 38 How. 97. In every species of action under the Code, such judgment is to be granted as, taking into consideration all the principles of law and equity applicable to the case, may be proper. New York Central Ins. Co. v. Nat. Pro. Ins. Co., 14 K Y (4 Kern.) 85. NATURE OF JUDGMENT, AND THE RELIEF. 611 Judgment on demurrer — Final judgment against plaintiffs and defendant. ' ' The question is not whether the plaintiff has a legal right or an equitable right, or the defendant a legal or an equitable defense against the plaintiff s claim ; but whether, according to the whole law applicable to the case, the plaintiff makes out the right which he seeks to establish, or the defendant shows that the plaintiff ought not to have the relief sought for." Crary v. Goodman, 12 N. Y. (2 Kern.) 266. See New York Ice Co. v. North- western Ins. Go., 21 How. 296 ; S. C., 12 Abb. 414 ; 23 N, Y. (9 Smith) 357 ; Barlow v. Scott, 24 N. Y. (10 Smith) 40 ; Emery v. Pease, 20 N. Y. (6 Smith) 62 ; Despard v. Walbridge, 15 N. Y. (1 Smith) 374. ARTICLE X. JUDGMENT OK DEMURRER. k Section 1. Where demurrer is overruled. See "Decision on Issue of Law," {ante, 596, art. 2, § 3,) where the rules relating to judgment on demurrer are stated in full, and the cases bearing on the subject collected together. Section 2. Where demurrer is sustained. See ante, 596, art. 2, §3. Section 3. Final judgment against plaintiffs. In a case in which the answer of the defendant is sufficient to constitute a bar to the action, and it is demurred to, and the demurrer is over- ruled, the proper judgment to be entered is a final judgment to the effect that the plaintiff take nothing by his complaint and that the same be dismissed. - And this is the rule, although there may be issues of fact joined in the cause. WigMman v. Sliarik- land, 18 How. 79. Section 4. Final judgment against defendant. But final judg- ment cannot be perfected against a defendant on an issue of law, where there are issues of fact undisposed of. In such case the decision merely remains an order, from which the losing party is entitled to an appeal to the general term, but not to the court of appeals, and the party succeeding must await the determina- tion of the issues of fact before he can enter and perfect final judgment on the whole record. Paddock v. The Springfield Fire and Marine Insurance Co., 12 N. Y. (2 Kern.) 591 ; Adams v. Fox, 27 1ST. Y. (13 Smith) 640. See Ferris v. Aspinioall, 10 Abb. N. S. 137 ; Harris v. Clark, 4 How. 78 ; Ford v. David, 3 Abb. 385 ; The People v. Haws, 34 Barb. 69 ; S. C, 21 How. 178 ; 12 Abb. 204. 612 NATURE OF JUDGMENT, AND THE RELIEF. Judgment on frivolous or false pleading. ARTICLE XI. JUDGMENT ON FRIVOLOUS OK FALSE PLEADING. Section 1. What judgment may be given on frivolous pleading. If a demurrer, answer or reply be frivolous, the party thereby prejudiced may make application to a judge of the court, either in or out of the court, and judgment may.be given accordingly. Code, § 247. Under this section of the Code, a judge at cham- bers has the same power as at special term, and may make either an absolute or a conditional order for judgment, on account of the frivolousness of a pleading. Wither spoon v. Van Dolar, 15 How. 266 ; Witherhead v. Allen, 28 Barb. 661. And it seems that a motion for judgment on overruling frivolous defenses, under this section, may, in a proper case, be combined with a motion to strike out sham and irrelevant defenses under section 152, and a motion for expunging irrelevant and redundant mat- ter under section 160, of the Code. See ante, vol. 2, 494. In such case the party making application assumes, however, the risk of having his motion denied if he asks what ought not to be granted, and of having to pay costs if he asks too much. People v. Mc Cumber, 15 How. 186; S. C, 27 Barb. 632; S. C. affirmed, 18 N. Y. (4 Smith) 315. Although it is the better practice for the party making appli- cation for judgment to state the grounds upon which it is made, yet the notice of motion need not necessarily specify which of the defenses are claimed to be sham or irrelevant, and which frivolous. Bailey v. Lane, 13 Abb. 354. See ante, vol. 2, 494. When judgment is given, under section 247 of the Code, the frivolous pleading is not stricken out, but remains upon the record and becomes a part of the judgment roll. Fettretch v. McKay, 47 N. Y. (2 Sick.) 426 ; S. C, 11 Abb. N. S. 453 ; Peo- ple v. McCumler, 18 1ST: Y. (4 Smith) 315 ; Briggs v. Bergen, 23 N. Y. (9 Smith) 162. And the court has no power to order judg- ment upon a part of an answer as frivolous where there is a part which is held good. But, if part of the answer is irrelevant, it may be stricken out as such, under section 152, on a motion for judgment for frivolousness, if there is a prayer in the notice of motion for "other or further relief." Thompson v. The Brie NATURE OF JUDGMENT, AND THE RELIEF. 613 Nature and effect of decision — What j udgment may be given on a false pleading. R. R. Co., 45 N. Y. (6 Hand) 468. See Hecker v. Mitchell, 6 Duer, 687; S. C, 5 Abb. 453. Section 2. Nature of decision. A decision of the court, or of a judge at chambers, under section 247 of the Code, upon the frivolousness of a demurrer, is a judgment upon an issue of law and not an order simply. King v. Stafford, 5 How. 30 ; Bent- ley v. Jones, 4 id. 335 ; S. C, 3 Code R. 37 ; Roberts v.. Mor- rison, 7 How. 396 ; 11 N. Y. Leg. Obs. 61 ; Bruce v. Pinckney, 8 How. 397 ; Lewis v. Acker, id. 414. An appeal may, however, be now taken from such decision as an order, if brought within the time allowed by section 349 of the Code. If not brought within such time, and judgment be entered, then it can only be appealed from as a judgment. Lee v. Ainslie, 4 Abb. 463 ; S. C, 1 Hilt. 277 ; Witherhead v. Allen, 28 Barb. 661. See ante, vol 2, 496. Section 3. Effect of decision. Where judgment is ordered for the plaintiff, on a frivolous answer or demurrer, he takes judg- ment in the same manner as if no answer or demurrer had been put in, where there is no other issue. King v. Stafford, 5 How. 30 ; Saltus v. Kipp, 5 Duer, 646 ; S. C, 12 How. 342 ; 2 Abb. 382. See Aymar v. Chase, 1 Code R. N. S. 141 ; and see ante, vol. 2, 496. Section 4. What judgment may be given on a false pleading. It is provided by section 152 of the Code, that " sham and irrele- vant answers and defenses may be stricken out on motion, and upon such terms as the court may, in their discretion, impose." No new power is conferred by this section of the Code, but its provisions are merely declaratory of that power which the court formerly possessed, to prevent the perversion of the forms of presenting defenses. Wayland v. Tysen, 45 N. Y. (6 Hand) 281 ; Manufacturers' 1 Bank of Rochester v. Hitchcock, 14 How. 406. The court has no power to,strike out, as sham, an answer con- sisting of a general denial of the material allegations of the com- plaint ( Wayland v. Tysen, 45 N. Y. [6 Hand] 281) ; nor does the above section (152) authorize the striking out of the whole or part of an answer as redundant (Fasnacht v. Stehn, 5 Abb. N. S. 338 ; S. C, 53 Barb. 650), or part of an entire answer or separate defense as sham. The whole must be stricken out or none. Winslow v. Ferguson, 1 Lans. 436. See ante, vol. 2, p. 489. A sham answer is one which is false. Fettretch v. McKay, 47 N. Y. (2 Sick.) 426; S. C, 11 Abb. N. S. 453; Littlejohn v. G14 NATURE OF JUDGMENT, AND THE RELIEF. Effect of judgment — Judgment on admitted demand. Greeley, 22 How. 345 ; S. C, 13 Abb. 311 ; Hadden v. N. Y.Sillc Manuf'g Co., 1 Daly, 388 ; Kreitz v. Frost, 5 Abb. N. S. 277 ; Leach v. Boynton, 3 Abb. 1. And an answer may be stricken out as sham if it is untrue in fact, although the defendant be- lieved the allegations to be true, his ignorance of their untruth being immaterial. Roome v. Nicholson, 1 Sweeny, 525 ; S. C, 8 Abb. N. S. 343. Section 5. Effect of judgment. Where the answer has been stricken out as sham and irrelevant, the proper method of ob- taining judgment is to proceed as though no answer had been put in. Aymar v. Chase, 1 Code R. N. S. 141 ; De Forest v. Baler, 1 Rob. 700 ; S. C, 1 Abb. N. S. 34. See ante, vol. 2, p. 492. Section 6. What judgment may be rendered on a pleading false in part and frivolous in part. It seems that, in a proper case, judgment may be rendered on a pleading false in part and frivo- lous in part. Thus it has been held that, under proper restric- tions, the practice would not be censurable to combine in one a motion to strike out sham and irrelevant defenses, for judgment on overruling frivolous defenses, for expurgating irrelevant and redundant matter, and for a compulsory amendment of indefi- nite allegations. See People v. Mb Cumber, 27 Barb. 632 ; S. C, 15 How. 186 ; 18 N. Y. (4 Smith) 315 ; see, also, ante, 612, § 1 ; ante, vol. 2, p. 495. ARTICLE XII. JUDGMENT ON ADMITTED DEMAND. Section 1. What judgment may be rendered. Where the de- fendant, by his answer, in any such action as is described in sec- tion 246 of the Code, subdivision 1, shall not deny the plaintiff's claim, but shall set up a counter-claim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of his claim over the defendant' s counter-claim. Code, § 246. And in such case the plaintiff may enter judgment for the balance, without any assessment by the clerk. Bobbins v. Watson, 22 How. 293. See ante, vol. 2, p. 519. NATURE OF JUDGMENT, AND THE EELIEF. 615 Stipulation for judgment. ARTICLE XIII. STIPULATION FOR JUDGMENT. Section 1. Parties compelled to abide by. In a case where judgment has been entered np as the result of a verbal agree- ment between the attorneys for the respective parties, the per- formance of the terms of such agreement by the parties will be compelled by the court. The rule requiring stipulations or agreements of this kind to be in writing has no application, where an advantage has been obtained by the one party in con- sequence of the other's reliance on the arrangement, and especially where the agreements have been executed by passing into a judgment. Montgomery v. Ellis, 6 How. 326. See Kelly v. Thayer, 34 How. 163. CHAPTER III. FORM AND CONTENTS, IN GENERAL. ARTICLE I. GENERAL EOKM OF JUDGMENTS. Section 1. Essentials of a judgment. It is essential that every judgment should clearly show what is adjudged, the parties between whom judgment is pronounced, and by what tribunal the judgment is rendered. This is all that is absolutely neces- sary, but for the sake of giving form to the judgment it is usual to follow the divisions of the equity decree, under the former practice in chancery. This, in general, consisted of three parts : 1. The caption and title ; 2. The reciting part ; and, 3. The ordering part ; to which was sometimes added the declaratory part, which, when used, generally preceded the ordering part. See 1 Barb. Ch. Pr. 337. It should be remembered that it is the substance only of the old forms that has been preserved in the present practice, and that but little regard is now paid to the strict formal divisions as above given. The practice of giving the reason for a judgment in writing is said to be of comparatively modern origin ; and it is wholly in the discretion of the court whether or not it give an opinion upon pronouncing judgment, and if given whether it be oral or in writing. Houston v. Williams, 13 Cal. 24. Section 2. Title and caption. The title of the judgment should give the general description of the court, and should set forth the names of the parties, plaintiffs and defendants, in full. The caption is not an essential part of the judgment, although it is common in practice to insert one. It should state the term of the court at which the judgment was ordered, the place at which it was actually held, and the date at which it was actually entered. See Old Chancery Rule 98 ; Barclay v. Brown, 7 Paige, 245; Whitney v. Belden, 4 id. 140. And where it is ordered to be entered nunc pro tunc, as of a previous date or otherwise, the fact should be stated, and the time of actual entry must appear in some part of the judgment. Barclay v. Brown 7 Paige, 245. FORM AND CONTENTS. 617 Recitals — Mandatory parts. A judgment upon the report of a referee is to be entered, in form, as if pronounced by the court before one of its justices at special term. Hancock v. Hancock, 22 N. Y. (8 Smith) 568. If the judgment is taken by default, without application to the court, the caption may either state the judgment as of a special term held that day, naming the judge sitting at that term, or this may be wholly omitted and the date and place of entry of judgment simply given. 2 Till. & Shear. Pr. 694. Section 3. Recitals. Under the present practice recitals are "nurely matters of form, and are only made in a judgment in the most general way, and even under the former practice in chan- cery were not regarded as necessary ; it being intended, where the cause was set down for hearing, that it was regularly done, unless the party attempting to impugn the decree showed the contrary. Qioarrier v. Garter, 4 Hen. & Munf. 242. Where judgment is for the defendant the recitals may be of importance, as showing whether or not it ought to bar a new action for the same cause of action. And it should appear in such judgment whether the cause was decided upon the merits, whether it was submitted to the jury if any, or whether the com- plaint was dismissed without any conclusive decision of the con- troversy. The recitals are conclusive evidence against a party in the action, who makes no motion to correct them. Chemung Canal Bank v. Judson, 8 N. Y. (4 Seld.) 254. Section 4. Mandatory part. This part of the judgment, which corresponds to the ordering and declaratory part of the equity decree, constitutes the judgment properly speaking, and it must specify clearly the relief granted or other determination of the action. Code, § 280. The ordering or mandatory clause of the equity decree com- menced as follows : " It is therefore ordered, adjudged and de- creed, and this court, in virtue of the power therein vested, doth order, adjudge and decree." 1 Barb. Ch. Pr. 338. Under the Code the word "decree" is omitted, and the term "judgment" substituted. The usual form of the ordering part, therefore, is " It is adjudged," etc. ; and this is proper to be used either in the ordering or in the declaratory part of the judgment. 1 Van. Santv. Bq. Pr. 586. Vol. III. —78 618 FORM AND CONTENTS. Judgment for plaintiff. ARTICLE II. JUDGMENT FOB, PLAIXTIHF. Section 1. On failure to answer summons personally served. Judgment on failure to answer. SUPREME COURT. A. B., plaintiff, j aast. > Judgment, 187 C. D., defendant. V at h ' m - M The summons, with a copy of the complaint in this action, having been personally served on , the defendant , more than twenty days previous hereto, exclusive of the day of ser- vice, and no answer or demurrer to the complaint having been served on the plaintiff 1 attorney , as required by the sum- mons ; Now on motion of , plaintiff attorney , it is hereby adjudged that, etc. The above form contains merely the recitals proper for judg- ments taken under this section. The ordering or mandatory parts of the judgment will be given under the appropriate heads relating to the various kinds of relief. Section 2. Judgment on failure to answer, summons served by publication. (Title of cause.) (Caption.) The summons in this action having been ordered to be served by publication, and the time prescribed by the order for publi- cation against the defendant (or defendants, naming them, and if the service has been made on different defendants on different days, specify the times of each,) having expired on the day of , 18 , and due proof having been given to the court of such service, and that no answer (or notice of appearance) has been received from the defendant (or defendants, naming them), and of the demand mentioned in the complaint (and the plain- tiffs having filed, as required, satisfactory security to abide the order of the court touching the restitution, etc., as specified in the third subdivision of section 246 of the Code of Procedure)^ it is now, on motion of E. B., counsel for the , adjudged that (etc.). FOBM AND CONTENTS. 619 Judgment on admitted demand, demurrer, etc. — Judgment for defendant. Section 3. Judgment on admitted demand. {Title of cause.) {Caption.) The plaintiff having filed with the clerk a statement, admitting the counter-claim contained in the answer of the defendant {or defendants, naming them), it is now, on motion of {etc.), adjudged that the plaintiff recover of the defendant {or defendants, naming them), dollars, being the excess of the plaintiff's claim over the said counter-claim, with dollars costs of the action, making together dollars. Section 4. Judgment on demurrer. {Title of cause.) {Caption.) This action having been brought to trial upon the issue of law arising upon the complaint and demurrer thereto {or complaint, answer and demurrer to the answer, or complaint, answer, reply and demurrer to the reply), and it appearing to the court that the is entitled to judgment upon the said demurrer, it is now, etc., {inserting such clauses as are appropriate to the pecu- liar judgment pronounced.) Section 5. Judgment on a verdict. {Title of cause.) {Caption.) This action having been brought to a trial by a jury, and a verdict therein rendered for the , it is now, on motion of (etc.), adjudged that' (etc.). Section 6. Judgment on a report of referee. {Title of cause.) {Caption.) This action having been referred by an order dated (etc.) to , of , to hear and decide all the issues therein, and the report of the said referee being filed, it is now, on motion of (etc.), adjudged that (etc.). ARTICLE III. JUDGMENT SOK DEFENDANT. Section 1. On dismissal of complaint. Under the former prac- tice at law a nonsuit did not constitute a bar to a new action, but a decree in equity, dismissing a bill upon its merits, was conclu- sive until reversed, and was a good plea in bar to a second bill for relief on the same subject-matter. See Holmes v. Semsen, 620 FORM AND CONTENTS. Form of judgment dismissing complaint for want of service. 7 Johns. Ch. 286 ; Lansing v. Russell, 13 Barb. 510 ; S. C, 2 N. Y. (2 Comst.) 563 ; 4 How. 213 ; 2 Code R. 138 ; Ogsbury v. La Farge, 2 N. Y. (2 Comst.) 113 ; Burhans v. Van Zandt, 7 N. Y. (3 Seld.) 523. The Code having substituted a dismissal of the complaint for the former nonsuit, it was at first a question as to whether a dismissal did not amount to a bar in all kinds of actions ; but it is now settled that the judgment of dismissal of the complaint in actions of a legal nature, when granted in lieu of a nonsuit, does not bar another action. Coit v. Bland, 12 Abb. 462 ; S. C, 33 Barb. 357 ; 22 How. 2 ; Dexter v. Clark, id. 289 ; S. C, 35 Barb. 271 ; Wheeler v. Ruckman, 7 Rob. 447 ; S. C, 35 How. 350 ; Harrison y. Wood, 2 Duer, 50 ; Mechanics' Banking Association v. Mariposa Co., 7 Rob. 225. See Yauglian v. O'Brien, 57 Barb. 491 ; S. C, 39 How. 515. This rule, however, seems to be inapplicable to actions of an equitable nature, and, in such actions, a judgment of dismissal is held to be a bar. See Coit v. Bland, 12 Abb. 462 ; S. C, 33 Barb. 357 ; 22 How. 2 ; BostwicJc v. Abbott, 16 Abb. 417 ; S. C, 40 Barb.. 331. Judgment may be rendered in favor of the defendant, either by a conclusive adjudication on the merits of the controversy between the parties, or the plaintiff may be simply turned out of court with the liberty to renew his action at a future time. Form of judgment dismissing complaint for want of service. ( Title of cause. ) ( Caption. ) This action having been commenced by the service of the sum- mons, without a copy of the complaint, on the defendant {or defendants, naming those in whose favor the dismissal is taken), and the said defendant {or, the said defendants) having, on the da y of j 18 , served on the plaintiff's attorney a notice of appearance, and demanded a copy of the complaint, and due proof having been given to the court of such notice and demand, and that no copy of the complaint has been served, it is now, on motion of (etc.), adjudged that the complaint be dismissed for want of service of a copy thereof, and that the defendant {or, the said defendants) recover of the plaintiff dollars costs of the action. Section 2. On failure to reply. {Title of cause.) {Caption.) The defendant having answered the complaint in this action, setting up a counter-claim {or, and the plaintiff having been required by order of the court to reply to the same), and due FORM AND CONTENTS. 621 Judgment on the merits — Between defendants — For damages or money. proof having been given to the court of the service of such answer (and order) on the plaintiff on the day of , 18 , and that no reply has been received from the plaintiff, it is now, on motion of (etc.), adjudged that the defendant recover dollars, being the excess of his counter-claim over the plaintiff's claim, with dollars costs of the action, making together dollars (or, that the complaint be dismissed, and that the defendant recover dollars, costs of the action). Section 3. Judgment on the merits. Form of judgment upon, after a verdict. (Title of cause.) (Caption.) This action having been brought to a trial by jury, and a ver- dict having been found for defendant (or defendants, naming them) it is now, on motion of , counsel for defendant, adjudged that the complaint be dismissed upon the merits of the action, and that the defendant (or the said defendants) recover of the plaintiff dollars costs of the action. ARTICLE IV. JUDGMENTS BETWEEN DEFENDANTS. See principles relating to, ante, 605, chap. 2, art. 6. ARTICLE V. JUDGMENTS EOE DAMAGES OK MONET. Section 1. Form of judgment for money. There should be but one judgment for money in any action. And where, on a recov- ery of a money demand by the plaintiff, the defendant is entitled to costs, the costs should be set off against the plaintiff 's recovery; and but one judgment rendered for the balance in favor of the party to whom the balance is due. The Code does not author- ize two judgments in such a case between the same parties, one for the plaintiff for his debt, and another for the defend- ant for his costs. Johnson v. Farrell, 10 Abb. 384 ; Grim v. GronkMte, 15 How. 250; Ganfleld v. Gaylord, 12 Wend. 236. Judgment for plaintiff for damages, and for defendant for costs. The form of the judgment may be as follows : J. Recite proceedings and verdict, decision, or report, as in forms, ante, articles 2, 3, continuing: And it appearing that 622 FORM AND CONTENTS. Judgment against joint debtors and in actions for lands. this action, being one of which a court of justice of the peace has jurisdiction, the plaintiff is not entitled, to costs {or the plaintiff not having recovered so much as fifty dollars, he is not entitled to costs), and the defendant is entitled to costs against the plaintiff ; It is adjudged, that the plaintiff recover of the defendant dollars, his damages so found {or assessed) ; and that the defend- ant be allowed his costs of this action, amounting to dollars ; and that the defendant, after deducting said sum of {damages) from said sum of {costs), do recover of the plaintiff, and have execution for the sum of dollars, the residue of said costs. Judgment for money, common form. {Title of cause.) {Caption.) {Recitals as in articles 2, 3, ante.) It is now, on motion of , counsel for the , adjudged that the recover of the , dollars, with dol- lars costs of the action, making together dollars. Section 2. Judgment against joint debtors. Form of judgment against defendants jointly indebted on con- tract; wJiere all are not served. {Title of cause.) {Caption.) {Same as last form, and continuing :) but this judgment can only be enforced against the joint property of all the defendants, and the separate property (and persons) of the said {naming the defendants served), who were served as aforesaid. ARTICLE VI. JUDGMENTS IN ACTIONS FOK LANDS. Section 1. For plaintiff. The judgment, in an action for land, if the plaintiff prevail, must be that the plaintiff recover the pos- session of the premises, according to the verdict of the jury, if there was such verdict ; or, if the judgment be by default, accord- ing to the description of the premises contained in the complaint. 2 R. S. 308 (317), § 33. The judgment may also include such damages as are assessed by the verdict or otherwise. Where the plaintiff's title has in any way terminated during the pendency of the action, whether by its own limitation or by the plaintiff's own act, judgment in his favor must be for costs and damages, but not for the land, as to which the defendant FORM AND CONTENTS. 623 Judgment in actions for chattels. should be discharged. Lang v. Wilbraham, 2 Duer, 171 ; 2 R. S. 308 (317). See Van Rensselaer v. Owen, 48 Barb. 60 ; S. C, 33 How. 12. Form, of judgment for the recovery of possession, with dama- ges, etc. I. Recitals of proceedings, and verdict, decision or report {same as informs, ante, arts. 2, 3, continuing ;) therefore : It is adjudged, that the plaintiff A. B. recover of the defendant C. D.* the possession of the real property described in the com- plaint (or, if only a part is recovered, the following described real property : description) ; and also the sum of dollars damages for the withholding thereof, together with dollars costs of this action, amounting in the whole to dollars. Judgment for damages where plaintiff's title expired before trial. I. (Same as above, to the *, continuing :) dollars damages for the withholding of the premises described in the complaint prior to the day of , when the plaintiff's title expired (and also dollars for the rents and profits thereof), and dollars costs of this action, making together the sum of dollars. And that as to the premises claimed, it is adjudged that the defendant go thereof without day. ARTICLE VII. JUDGMENT IN ACTION EOR CHATTELS. Section 1. For plaintiff. In an action to recover the possession of personal property judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for the deten- tion. Code, § 377. Under this provision of the Code, where the action is brought to recover possession of specific personal property, if it has not been delivered to the plaintiff, the judg- ment must be in the alternative. In such case the plaintiff can- not elect to take judgment for the value of the property abso- lutely. Wood v. Orser, 25 N. Y. (11 Smith) 348 ; Fitzhugh v. Wiman, 9 N. Y. (5 Seld.) 559. A judgment which should, how- ever, be in the alternative, but is absolute, is not void, but is valid, until reversed or amended. Livingston v. Hammer, 7 Bosw. 670 ; Oallarati v. Orser, 4 id. 94. See S. &, 27 N. Y. (13 624 FORM AND CONTENTS. Form of judgment for recovery of posseseion. Smith) 324 ; Ingersoll v. Bostwick, 22 N. Y. (8 Smith) 425 ; Johnson v. Carnley, 10 N. Y. (6 Seld.) 570. Section 2. For defendant. Where the property has been de- livered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. Code, § 277. It is also necessary that this judgment be in the alternative form, and the defendant is not at liberty to elect to take judg- ment for the value only. Dwight v. Enos, 9 N. Y. (5 Seld.) 470 ; Olann v. Younglove, 27 Barb. 480 ; Seaman v. Luce, 23 id. 240. Form of judgment for recovery of possession. {Recite proceedings and verdict, decision or report, as in forms, ante, arts. 2, 3, continuing :) and the value of the Eroperty claimed (and damages for the detention thereof), aving been assessed at dollars by the jury (or, by a sheriff's jury by the direction of the court, or, by said referee) :* Therefore, it is now, on motion of , counsel for the , adjudged that the plaintiff (or, defendant) recover of the (defend- ant) the possession of the personal property described in the complaint (or, the following described personal property — description), or, dollars, the value thereof, in case a deliv- ery of said property cannot be had ; and, also, that he recover ( dollars damages, together with) dollars costs of this action, amounting in the whole to dollars. For confirmation of possession. (Same as the preceding form to the *, continuing :) And the property claimed having been taken into the possession of the plaintiff (or defendant), therefore : It is adjudged that the plaintiff (or defendant) have and retain possession of the personal property described in the complaint (and also recover dollars damages), together with dollars costs of this action, amounting in the whole to dollars. The judgment is the same, even where the successful party is a mere lienor (Dows v. Rush, 28 Barb. 157), unless the opposite party is the general owner, in which case, if the latter is in pos- session, the proper form of judgment in favor of the lienor is that he recover possession, or if that cannot be had then the value, not exceeding the amount due to him under his lien. Seaman FORM AND CONTENTS. 625 Judgments for special relief. v. Luce, 23 Barb. 240 ; Mtzhugh v. Wiman, 9 N. Y. (5 Seld.) 559. See Bows v. Greene, 24 N. Y. (10 Smith) 638, 646. Where the property has not been taken from the defendant during the litigation, the judgment in his favor is in the ordinary form for costs only. ARTICLE VIII. JUDGMENTS FOR SPECIAL RELIEF. Section 1. In foreclosure. In a case in which there is no answer, the relief granted to a plaintiff cannot exceed that which is spe- cifically demanded in the complaint ; and a judgment entered which grants to the plaintiff relief not so demanded is void as unauthorized. Bullwinker v. JRyker, 12 Abb. 311 ; Simonson v. Blake, id. 331 ; S. C. , 20 How. 484. See Grant v. Van Bercook, 8 Abb. N. S. 455 ; S. C, 57 Barb. 165. Under this rule a judgment in foreclosure for a deficiency, where the complaint only asked for a sale, is unauthorized and should be vacated on motion. Simonson v. Blake, 12 Abb. 331 ; S. C, 20 How. 484. Where the decree in a foreclosure action reserves something for the court to judicially determine, such decree or judgment is to be regarded as interlocutory merely, from which no appeal will lie to the court of appeals {Morris v. Morange, 4 Abb. N. S. 447 ; • S. C, 6 Trans. App. 1 ; 38 N. Y. [11 Tiff.] 172. See Clark v. Brooks, 2 Abb. N. S. 385, 405 ; S. C, 2 Daly, 159) ; but the usual decree for a sale in such action, directing the premises to be sold by the sheriff and a judgment to be docketed by the clerk for any deficiency that may arise is, before the execution of the de- cree, a "final judgment" within the provisions of the Code as to appeals. lb. And an objection to a judgment in foreclosure that the court rendering final judgment in the case was not com- posed of the same judges who rendered the preliminary judg- ment, ascertaining and settling the rights of the parties and order- ing judgment^, is without force. Howard v. Freeman, 3 Abb. N. S. 292 ; S. C, 7 Rob. 25 ; Chamberlain v. Bempsey, 36 N. Y. (9 Tiff.) 144 ; S. C, 1 Trans. App. 257 ; reversing S. C, 9 Bosw. 540 ; S. C, 15 Abb. 1. A judgment under an action to foreclose a mortgage which, at the same time, forecloses mortgages prior to that upon which the action was brought is irregular, and may be opened upon motion. Vol. III.— 79 G26 FORM AND CONTENTS. Judgment of foreclosure and Bale. of the prior mortgagee. The prior mortgagee may, however, fore- close subsequent mortgages, because they are taken as security by the junior incumbrancer, subject to such right of the former to foreclose ; but the rights of the parties in this respect cannot be reversed, except with the express assent of the prior incum- brancer. McReynolds v. Munns, 2 Keyes, 214. The court has no authority, in an action to foreclose a mortgage, to render a contingent personal judgment against some of the defendants before final judgment of foreclosure and sale ; the provisions of section 274 of the Code not being applicable to such cases. Cobb v. Thornton, 8 How. 66. Judgment of foreclosure and sale. At a special term of the court of the State of New York, held at , in the county of , on the day of , 187 . Present — Hon. , Justice. COURT. A. B., plaintiff, J agst. v Judgment. C. D. and E. P., defendants. \ The summons in this action having been served on the defend- ants, Now on reading and filing the affidavit of , attorney for the plaintiff , proving that {see Rule 72, Supreme Court), and that the complaint in this action and due notice of the pendency of said action were duly filed in the office of the clerk of the county of , on the day of , one thousand eight hundred and seventy , and an order of reference having been made to compute the amount due to the plaintiff upon the bond and mortgage set forth in the complaint ; {recite order of reference briefly,) on reading and filing the report of the referee named in the order of reference, by which report, bearing date the day of , 187 , it appears that there was due thereon at the date of said report the sum of $ , and that {insert findings of referee as to proof of facts and, circum- stances stated in complaint, etc., if the complaint was not an- swered or denied, and some of the defendants are absentees). Now, on motion of , attorney for the plaintiff , it is -adjudged that the mortgaged premises described in the com- plaint in this action, as hereinafter set forth, or so much thereof as may be sufficient to raise the amount due to the plaintiff for principal, interest and costs, and which may be sold sepa- rately without material injury to the parties interested, be sold ■at public auction in the , county of , by or under the FORM AND CONTENTS. 627 In partition. direction of ; that the said give public notice of the time and place of such sale, according to law and the practice of this court ; that either or any of the parties to this action may purchase at such sale ; that the said execute to the pur- chaser or purchasers, a deed or deeds of the premises sold ; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens upon said premises so sold, at the time of such sale, for taxes or assessments, the said pay to the plaintiff or attorney , the sum of dollars and cents, adjudged to the plaintiff for costs and charges in this action, with interest from the date hereof, and also the amount so reported due as aforesaid, together with the legal interest thereon, from the date of the said report, or so much thereof as the purchase-money of the mortgaged premises will pay of the same, take a receipt therefor, and file it with his report of sale ; that he pay over the surplus moneys, arising from the said sale, if any there should be, to the treasurer of the county of , within five days after the same be received and ascer- tainable, subject to the further order of the court ; that he make a report of such sale and file it with the clerk of this court with all convenient speed ; that if the proceeds of such sale be insufficient t© pay the amount so reported due the plain- tiff , with the interest and costs as aforesaid, the said specify the amount of such deficiency in his report of sale, and that the defendant pay the same to the plaintiff , and that the plaintiff have execution therefor, and that the pur- chaser or purchasers at such sale be let into possession on pro- duction of the deed, and a certified copy of the order con- firming the report of sale And it is further adjudged that the defendant and all persons claiming under them, or any or either of them, after the filing, of such notice of pendency of this action, be forever barred and foreclosed of all right, title, interest and equity of redemption in, the said mortgaged premises so sold, or any part thereof. The following is a description of the mortgaged premises here- inbefore mentioned : Section 2. In partition. The judgment in partition must set forth the estate of each known owner, or of the defendants or some of them, collectively, when their rights between each other are disputed. Phelps v. Green, 3 Johns. Ch. 302. But there can be no objection to a statement that certain definite portions belong, collectively, to owners who are unknown. They may be described in general terms, as the descendants of a person deceased. Hyatt v. Pugsley, 23 Barb. 285. The judgments, besides declaring the rights of the parties, and 628 FOEM AND CONTENTS. Form of final judgment for divorce on the ground of adultery. directing that partition should be made, may also provide for an account between the parties in respect to the rents and profits received. Brownson v. CHfford, 8 How. 389. But if the com- plaint does not demand such an account as against the defend- ants in possession, and they do not answer, it cannot be decreed. Bullwinker v. RyTcer, 12 Abb. 311. An omission of the referee to annex to his report the searches for incumbrances does not render a judgment on such report irregular. Noble v. Cromwell, 27 How. 289; affirming S. C, 6 Abb. 59 ; 26 Barb. 475. See Partition; post. Section 3. For divorce. Form of final judgment for divorce on the ground of adultery. {Title of cause.) This action having been tried on all the issues before E. B., sole referee, duly appointed {or by a jury, or by the court — a trial by jury having been waived), on reading and filing the pleadings and report of the referee {or the verdict of the jury, or the decision, etc., as the case may be), by which it appears that the said defendant has been guilty of the acts of adultery charged against him in the complaint in this action, 'and on motion of D. M., of counsel for the plaintiff, it is ordered and adjudged that the marriage between the said H. S. and the defendant M. S. be and the same is hereby dissolved ; and the said parties are, and each of them is, freed from the obligations thereof! And it is further adjudged that it shall be lawful for the said plaintiff H. S. to marry again, in the same manner as though the said defend- ant M. S. were actually dead ; but it shall not be lawful for the said defendant M. S. to marry again until the said plaintiff H. S. is actually dead. And it is further adjudged that the said defendant pay to the said plaintiff or her attorney the costs of this action, hereby adjudged at the sum of dollars. * {If the action be by the husband against the wife, and the illegitimacy of any_ child of the marriage has been established :) It is further adjudged that N. S., the infant child of said defendant, is not the issue of said marriage between said plain- tiff and said defendant, but is illegitimate and not entitled, in case of plaintiff's death intestate, to inherit or share any portion of his estate, real or personal. _ It is further adjudged that said defendant is not entitled to any right or title of dower in the plaintiff's real estate, or to any interest or distributive share in his personal property in case of his death intestate. FOEM AND CONTENTS. 629 Tie like judgment in favor of wife, with provisions as to alimony, etc. The like judgment in favor of wife, with provisions as to ali- mony and custody of children, etc. {Same as preceding form to the * then add :) _ And it is further ordered that the defendant "pay to the plain- tiff the sum of five hundred dollars per annum from the date hereof, in quarterly payments, for the support and maintenance of theplaintiff and the children of the marriage named in the com- plaint, and that he give security to the qlerk of this court, in , to be approved by one of the justices thereof, for the payment of the said sum ; but such payment is (not) to be in lieu of her right of dower in his real estate or interest in his personal property in case of his death intestate, and that the plaintiff have the care, custody and education of the said children of the mar- riage, until the further order of this court. As to the amount of counsel fees or alimony allowed, see For- est v. Forest, 3 Abb. 144 ; S. C, 6 Duer, 102 ; Leslie v. Leslie, 6 Abb. N. S. 193 ; S. C. affirmed, 10 id. 64 ; Miller v. Miller, 43 How. 125. In an action for divorce on the ground of adultery, brought against the wife, if she sets up an affirmative defense, such as recrimination, alimony and counsel fees will be denied her in the discretion of the court, where it appears that she has no reason- able ground for defense. GlarJc v. OlarTc,! Rob. 284 ; Strong v. Strong, 5 id. 612 ; S. C, 1 Abb. N. S. 358. See Ford v. Ford, 41 How. 169. As to the allowance of alimony where marriage is denied, see Brinkley v. Brinkley, 50 N. Y. (5 Sick.) 184. Recital in case of adultery, where the usual reference to take proof has been had. {Title of cause.) {Caption.) This action having been brought on to be heard upon the pleadings .herein {or, upon the complaint herein), and upon proof of defendant's failure to answer, and upon the report of B. D., duly appointed referee in this action, from which it appears that all the material facts alleged in the complaint are true, and that the defendant has been guilty of the several acts of adultery therein charged; now, on due proof of service of notice of hearing, on motion of D. M., attorney for the plaintiff, no one appearing to oppose, it is ordered and adjudged, etc. Judgment for limited divorce. {Recitals of proceedings and verdict, decision or report, as in other forms, ante, art. 2-4, continuing:) Therefore, it is adjudged that the said plaintiff and defendant 630 FORM AND CONTENTS. Specific performance — Form of judgment against vendor. be separated from bed and board forever ; provided, however, that the parties may at any time hereafter, by their joint petition, apply to this court to have this judgment modified or discharged. And it is further ordered and adjudged, that neither of said parties is at liberty to marry any other person during the life of the other party. (Provision as to custody of children, alimony, etc., as inform preceding the last.) Section 4. Specific performance. A judgment for special relief which requires the performance of some act by the party (as, for example, the acknowledgment of satisfaction of a mortgage) against whom such judgment is rendered, should contain the proper order directing the performance of the act ; and disobe- dience to such order may be punished by the court as for a con- tempt, under section 285 of the Code. Fero v. Van Ewa, 9 How. 148. Where the judgment requires a party to execute a convey- ance, it should provide for the settlement of the form of the instrument before a judge or referee. If, however, an instru- ment in proper form is tendered to the party he is bound to exe- cute it, although it has not been submitted to the court or judge for approval. Hilliker v. Hathorne, 5 Bosw. 710. Judgment for a specific performance by a vendor should not direct the defendant to procure releases from parties over whom he has no control. See Mills v. Van Voorhis, 23 Barb. 125 ; Brown v. Haff, 5 Paige, 235. In such case the judgment should direct a reference to ascertain whether the defendant can give a good title, the amount of any incumbrance which is a lien on the premises and can be discharged by the payment of money, etc. It should also provide for the discharge, by such referee, of the incumbrances which could be so paid off, and the execu- tion within a short time, by the defendant to the plaintiff, of a good and sufficient conveyance of the premises in fee simple. Jerome v. Scudder, 2 Rob. 169. Form of Judgment against vendor. (Recitals of proceedings and verdict, decision or report, as in forms ante, art. 2-4, continuing:) Therefore, it is ordered, adjudged and determined : I. That the agreement set forth in the complaint, and duly proven in this action, be specifically performed ; and that the* defendant exe- cute and deliver to the plaintiff (upon his demand in writing) a good and sufficient conveyance in fee, with full covenants, the FOEM AND CONTENTS. 631 Form of judgment against purchaser. form of the same to be settled and approved by one of the jus- tices of this court (or, by the referee hereinafter named), in case the parties differ respecting it, of the following described prem- ises (here set forth description of premises} : II. And it is further adjudged, that the plaintiff, upon the delivery or tender of said conveyance, do pay to the defendant or his attorney dollars, (the residue of) the purchase- money named in the < contract set forth in the complaint, with interest from the day of (subject, however, to a deduction and abatement to which the plaintiff is hereby adjudged to be enti- tled, for the deficiency in the amount of the land agreed to be con- veyed ; and it is further ordered that it be referred to E. B., Esq., of , counselor at law, to compute and ascertain the amount of such abatement, and the amount of purchase-money remain- ing due after such deduction, and the interest thereon). III. And it is further adjudged, that if the plaintiff upon a tender of said conveyance refuse to pay the sum so found due, t the premises hereinbefore described be sold by said referee (or, by the sheriff of the county of ), by public auction (pro- ceed with directions for sale, and decree over for deficiency. Bee forms of judgment in foreclosure, ante, 626, § 1). (Or, instead of directing a sale, the following, beginning at the f, mag be substituted for the above; the plaintiff be barred of his right to a specific performance of said contract ; and that the contract be given up to be canceled.) IY. And it is further adjudged, that the plaintiff recover of the defendant dollars costs of this action, and may have execution therefor. "Where the complaint prays for a specific performance, or, in the event that cannot be compelled, for damages, the court will entertain the case and award damages if performance cannot be enforced. Woodward v. Morris, 2 Barb. 439; Wiswall v. McGown, id. 270 ; Barlow v. Scott, 24 N. Y. (10 Smith) 40 ; Greason v. Keteltas, 17 N. Y. (3 Smith) 491 ; Marquat v. Mar- quat, 12 N. T. (2 Kern.) 336 ; reversing S. C, 7 How. 417. And where the demand for a complete performance cannot be acceded to, a partial performance may be decreed, if the plaintiff asks for such relief at the trial ; but it cannot be granted on appeal. Mills v. Van Voorhies, 20 N. Y. (6 Smith) 412 ; S. C, 10 Abb. 152 ; reversing S. C, 23 Barb. 125. Form of judgment against purchaser. (Same as preceding form to the * substituting "plaintiff" /or "defendant," and " defendant " for "plaintiff," and continu- ing :) 632 FORM AND CONTENTS. Against infants — Surrender of documents. II. And it is further adjudged, that if the defendant refuse to receive said deed, the plaintiff file the same with the clerk of this court ; and that, upon such delivery or filing of said convey- ance, the defendant pay to the plaintiff or his attorney dollars (the residue of) the purchase-money named in the con- tract, set forth in the complaint, with interest from the day of , 18 . Section 5. Against infants. No judgment for special relief should be made against an infant without giving him a day, after he comes of age, to show cause against it {Bushnell v. Harford, 4 Johns. Ch. 301 ; Mills v. Dennis, 3 id. 367 ; Wright v. Miller, 1 Sandf. Ch. 103 ; S. C, 4 Barb. 611 ; 8 N. Y. [4 Seld.] 18) ; the time, being usually fixed at six months after coming of age. lb. ; Harris v. Touman, Hoffm. 178. Without such a clause, the judgment may be shown to be erroneous, and the infant may be relieved from it ( Wright v. Miller, 1 Sandf. Ch. 103 ; S. C, 4 Barb. 611 ; 8 N. Y. [4 Seld.] 18) ; even though the judgment be not fraudulently obtained. lb. ; Bushnell v. Harford, 4 Johns. Ch. 301. But proceedings which are by the court decided to be for the benefit of the infant do not come within the application of this rule, although in the main the action be adverse to the infant. Mills v. Dennis, 3 Johns. Ch. 367. The rules as above stated were well settled under the former practice in chancery, but were not adopted by courts of law ; and it may, therefore, be well doubted whether, under our present practice, they have any application in actions other than for special relief. Section 6. Surrender of documents. Before a decree is made canceling an instrument of any kind, the court should clearly see that no person but parties to the suit can sustain a claim upon it ; for, otherwise the decree should be for a perpetual injunction against those parties. MoHvers v. Lawrence, Hoffm. Ch. 172 ; S. C. affirmed, 2 Ch. Sent. 25. Form of judgment for surrender of a document. {Recitals as in form, ante, art. 2 to 4.) It is now, on motion of (etc.), adjudged, 1. That the contract set forth in the complaint was made under a mistake of material facts on the part of the plaintiff, and is, therefore, voidable by him 2. That the defendant surrender the same to be canceled. 6. lliat the plaintiff recover of the defendant dollars, costs of the action. FORM AND CONTENTS. 633 Settlement of judgment — Judgment on appeal. Section 7. Settlement of judgment. Where the defendant has appeared in the action, so as to be entitled to notice of the pro- ceedings, the plaintiff cannot settle ex parte the form of the judgment to be entered, when it grants him special relief. In such case the defendant is entitled to notice of the application for settlement. Wood v. Lambert, 3 Sandf. 724; S. C, 1 Code It. N. S. 214. The length of notice required has not been deter- mined by any fixed rule, two days being usually regarded as sufficient. A draft of the judgment ordered should be prepared by the successful party, and a copy thereof served by him upon his opponent, with a notice of the time and place of settlement. A judgment for special relief, entered without being settled as above, or without consent, will be set aside on motion. See Wood v. Lambert, 3 Sandf. 724 ; S. C, 1 Code It. N. S. 214. ARTICLE IX. JUDGMENT ON APPEALS. Section 1. Proceedings on judgment in appellate court. A judgment on appeal is entered in the same manner as a judg- ment on an original hearing ; and the entry will be that the judg- ment be affirmed or reversed, or, if modified, that it be done conformably to the manner prescribed by the court, adding to the judgment the usual award of costs. The judgment of the court of appeals is to be remitted to the court below, there to be enforced according to law ; hence, it must be brought formally to the notice of such inferior court, and be made one of its judg- ments ; and until the judgment of the court of appeals is incor- porated into the records of the court below, no proceedings can be instituted to enforce its directions. Seacord v. Morgan, 17 How. 394 ; S. C. affirmed, 4 Abb. N. S. 249 ; 35 How. 487 ; 34 id. 626(ra). The filing of the remittitur with the clerk, and his adjustment of the costs thereon is not sufficient. lb. The court below has no power to render any other judgment than one simply adopting that of the court of appeals as its own, and to take such measures as may be necessary to carry the determination of the appellate court into effect. Macgregor v. Buell, 17 Abb. 31 ; S. C. affirmed on this point, 1 Keyes, 153 ; 33 How. 450. Vol. III.— 80 634 FOKM AND CONTENTS. Judgment of affirmance and reversal. Where judgment is rendered on appeal, and the defeated party- desires to appeal further, it is the duty of the party in whose favor such judgment is rendered to make the formal entry of it at his own expense. Purdy v. Peters, 15 Abb. 160; S. C, 23 How. 328. Section 2. Judgment of affirmance. Where a judgment en- tered at special term is appealed to the general term, and is there afBrmed, a new judgment should not be entered ; the simple judgment of affirmance with the award of costs, if any^ should be attached to the original judgment roll. Eno v. Crooke, 6 How. 462 ; Be Agreda v. Mantel, 1 Abb. 130 ; Halsey v. Flint, 15 Abb. 367; Beardsley Scythe Co. v. Foster, 36 N. Y. (9 Tiff.) 561 ; S. C, 3 Trans. App. 215 ; 34 How. 97. But when the appeal has been taken from the judgment of an inferior court, the old practice of entering a new judgment upon an appeal seems to be still applicable. lb. ; Buck v. City of Lockport, 43 How. 283. And if the judgment on appeal is affirmed with costs, the re- spondent is entitled to have the interest on the judgment below from the time of its rendition to the time of entering judgment of affirmance, taxed by the clerk, and inserted with the costs of appeal. Buck v. City of Lockport, 43 How. 283. Where the case does not come up upon appeal, but merely upon a new trial on opening a former judgment which has been allowed to stajid as security, a judgment for the whole amount will be proper, without reference to the previous judgment. Mil- ler v. The Eagle Life and Health Ins. Co., 3 E. D. Smith, 184. When the judgment of the appellate court is given for the appellant absolutely and finally, no new trial being ordered, it is imperative upon the court to order restitution of all that the ap- pellant has lost. Code, § 320 ; Estus v. Baldwin, 9 How. 80. See Hall v. Emmons, 11 Abb. N. S. 435. Although it is irregular to include in the judgment rendered upon an appeal the amount of the judgment of the court below, yet where judgment is entered in that form payment of the amount thereof would operate not only as a satisfaction of such judg- ment, but of the judgment below included therein. Beers v. Hendrickson, 45 N. Y. (6 Hand) 665. Section 3. Judgment of reversal. Upon appeal a judgment may now be reversed by the appellate court as to one of the sev- eral defendants who appeals, leaving it to stand as against the others who do not appeal, in cases in which a several judgment FOEM AND CONTENTS. 635 Judgment of affirmance and reversal. is proper. Geraud v. Stagg, 10 How. 369 ; S. C, 4 E. D. Smith, 27. And in an action of tort a joint judgment against several „ may, on appeal, be reversed as to one or more of the defendants, and affirmed as to the others. Van Slyck v. Snell, 6 Lans. 299. When a judgment for the plaintiff in the marine or justice's court is reversed in the court of common pleas of New York without an award of final judgment for the defendant upon the merits, such reversal is not conclusive as to the rights of the parties ; and in such case the costs incurred by the defendant in the inferior court cannot be allowed him and embraced in the judgment of reversal. Mlertv. Kelly, 4 E. D. Smith, 12 ; S. C, 10 How. 392. See Hunt v. Hoboken Land and Improvement Co., 1 Hilt, 161. Section 4. Judgment of affirmance and reversal. Under the former practice the rule appears to have been well settled that an entire judgment against several defendants, whether rendered in an action for tort or upon contract, could not be reversed as to one defendant and allowed to stand as to the others. Camp v. Bennett, 16 Wend. 48 ; CruiksTiank v. Gardner, 2 Hill, 333 ; Sliel- don v. Quinlen, 5 id. 441, 442, note a ; Harman v. Brotherson, 1 Denio, 537 ; Schoonhoven v. ComstocJc, id. 655 ; Moulton v. Nor- ton, 5 Barb. 296 ; Geraud v. Stagg, 10 How. 369 ; S. C, 4 E. D. Smith, 27. The Code provides, however, that "in giving judg- ment the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact." Code, § 366. See Code, §§ 12, 274. Under this clear provision of the Code there can be no question in respect to the right and powe,r of the court, on appeal, to re- verse a judgment as to one defendant and affirm it as to the other, and especially in an action of tort where a cause of action had been made out against one and not against the other. See Htcbbellv. Meigs,50 N.Y. (5 Sick.) 480 ; Bullis v. Montgomery, id. 352. In such a case the plaintiff is entitled to a several judg- ment against the one, but not against the other. Van SlycTc v. Snell, 6 Lans. 299. And where there are several defendants and the judgment appealed from is in their favor, such judgment may be affirmed as to some of the defendants and reversed and a new trial ordered as to others, when it would have been proper to render separate judgments in the inferior court. Montgomery Go. Bank v. Albany City Bank, 7 N.Y. (3 Seld.) 459 ; S. C. below, 8 Barb. 396 ; 636 FORM AND CONTENTS. — . , 9 — Dismissal of appeal — Judgment for costs. Campbell v. Perkins, 6 N. Y. (2 Seld.) 86 (n) ; 8 N. Y. (4 Seld.) 430; Geraud v. Stagg, 10 How. 369 ; S. C, 4 E. D. Smith, 27. So where a judgment appealed from consists of distinct matters, and those matters are so presented that a, final judgment may be rendered by the appellate court upon each, the j adgment may be affirmed as to part and reversed as to the residue. Tillou v. Kingston Mut. Ins. Co., 5 N. Y (1 Seld.) 405 ; S. C. below, 7 Barb. 570 ; Story v. New York & Harlem R. R. Co., 6 N. Y. (2 Seld.) 85, 89. Such, also, was the practice prior to the adoption of the Code. See Smith v. Jansen, 8 Johns. Ill; Bradshaw v. Callaghan, id. 558 ; reversing S. C., 5 id. 80 ; Parker v. Van Houten, 7 Wend. 145 ; Van Bokkelin v. Ingersoll, 5 id. 315. A judgment cannot, however, be affirmed as to part of the amount recovered and reversed as to the residue, where a new trial would be ordered as to the part so reversed. Story v. New York & Harlem R. R. Co., 6 N. Y. (2 Seld.) 85. See Sears v. Conover, 33 How. 324 ; S. C, 3 Keyes, 113 ; affirming S. C, 34 Barb. 330. Section 5. Dismissal of appeal. The judgment on appeal from the special to the general term, in case of a dismissal, is held to be proper in the following form: "It is ordered and adjudged that such appeal be dismissed and such judgment affirmed with costs, and that the respondent do recover and have execution for costs, etc., and inserted in the entry of this judg- ment." DeAgreda v. Mantel, 1 Abb. 130. ARTICLE X. JUDGMENT FOR COSTS. Section 1. When judgment for, can be awarded. It has been held that, where an action has been dismissed on the ground that the court have no jurisdiction, as for example, by reason of the non-residence of the plaintiff, that judgment for costs, on dismissing the complaint, cannot be rendered. Harriot v. The New Jersey R. R. Co., 8 Abb. 284 ; S. C, 2 Hilt. 262. But the case in which this rule was laid down was reversed (see 1 Daly, 377), and the rule limited in its application to those cases only where the want of jurisdiction is apparent on the face of the summons or complaint. See Qormly v. Mcintosh, 22 Barb. 271 •, Humiston v. Ballard, 40 How. 40 ; S. C, 63 Barb. 9. FOEM AND CONTENTS. 637 Judgments upon frivolous pleadings. Where the want of jurisdiction does not appear upon the face of the proceedings, but is presented by demurrer, the court has jurisdiction to pass upon and determine the question presented ; and in such case the party prevailing is entitled to costs. lb. ; King v. Poole, 36 Barb. 242. In the following cases it is held that, where an action is dismissed by the court for want of juris- diction, a judgment may be rendered for costs : McMahon v. The Mut. Benefit Life Ins. Co., 8 Abb. 297 ; S. C, 3 Bosw. 644 ; The Cumberland Coal & Iron Co. v. The Hoffman Steam Coal Co., 15 Abb. 78 ; S. C, 39 Barb. 16 ; S. C. before, 20 How. 62 ; 30 Barb. 159. See Hunt v. Bank of Hanover, 8 Mete. 343. If there is any question as to the power of the court to render judgment for costs, where it has in fact been entered by the clerk, the proper practice to bring up the question is by an appeal from the judgment. Such an appeal does not, however, confer a new jurisdiction. Harriot v. New Jersey B. B. Co., 8 Abb. 284; S. C, 2 Hilt. 262. Where, on an insufficient recovery by the plaintiff, costs are awarded to the defendant, the costs should be set off against the plaintiff's recovery, and there should be but one judgment entered for the excess of the one over the other, to whichever party it belongs. Johnson v. Farrell, 10 Abb. 384. Provision setting off costs of the .defendant against the plain- tiff *' s judgment. {To the judgment of dismissal {see, ante, 620) add the fol- lowing) : And that said costs be and the same are hereby set off against so much of the plaintiff's judgment, mentioned in the complaint for dollars, entered in the office of the clerk of the county of , on the day of , 18 . ARTICLE XI. JUDGMENTS UPON FRIVOLOUS PLEADINGS. Section 1. Form of judgment. Where judgment is ordered for the plaintiff on a frivolous answer or demurrer, he takes judgment in the same manner as if no answer or demurrer had been put in, where there is no other issue. Aymar v. Chase, 1 Code R. jN. S. 141 ; King v. Stafford, 5 How. 30 ; Saltus v. Kipp, 2 Abb. 382; S. C, 5 Duer, 646; 12 How. 842. On the appli- cation for judgment, in such case, the defendant is entitled to notice. lb. See Code, § 247. CHAPTER IV. JUDGMENT BY DEFAULT. ARTICLE I. WHO MAY TAKE. Section 1. In general. The cases and manner in which judg- ment may be taken by the plaintiff, on default of the defendant to answer the complaint, are specified in section 246 of the Code, and will be fully treated of in subsequent parts of the present chapter. Judgment may also be entered by default in favor of the plaintiff, in certain other cases, which will be noticed under their appropriate heads. But judgment by default is not alone entered in favor of the plaintiff, there being many cases in which the defendant is entitled to such judgment as will be hereafter seen. Section 2. Where pleadings have been stricken out. Where an answer has been stricken out as sham and irrelevant, the case stands as if no answer had been put in ; and, if the defendant's time to answer has expired, the plaintiff can enter judgment as in the case of a default. Potter v. Carreras, 4 Rob. 629 ; De Forrest v. Baker, 1 Abb. 1ST. S. 34; S. C, 1 Rob. 700. If the summons be for relief, the defendant is entitled to the usual notice of application for judgment, after the answer has been stricken out. lb. If a demurrer -has been served by the defendant, it is an answer within the provisions of section 246 of the Code, and judgment cannot be taken by the plaintiff as on failure to answer. Brodhead v. Broadhead, 3 Code R. 8 ; S. C, 4 How. 308. See Kelly v. Downing, 42 K Y. (3 Hand) 71. But if there is a direction for judgment on a frivolous demurrer, answer or reply, under section 247 of the Code, or the demurrer has been overruled, in either case there is a failure to answer, and the same proceedings may be taken as where neither answer or de- murrer has been put in. Saltus v. Kipp, 2 Abb. 382 ; S. C, 12 How. 342 ; 5 Duer, 646 ; King v. Stafford, 5 How. 30 ; Aymar v. Chase, 1 Code R. ]ST. S. 141. Section 3. Where party has been allowed to plead over on terms. Where a party has been allowed by the court to plead over, or JUDGMENT BY DEFAULT. 639 Default of plaintiff. to amend upon terms, and, at the expiration of the time allowed, such terms have not been complied with, judgment by default may be entered by the party who has prevailed on the decision of the demurrer or motion for judgment. See Walton v. Walton, 32 Barb. 203 ; S. C, 11 Abb. 231 ; 20 How. 347. ARTICLE II. DEFAULT OF PLAINTIFF. Section 1. On failure of plaintiff to serve complaint on demand. The court may dismiss the complaint, with costs, in favor of one or more defendants, where the plaintiff unreasonably neglects to proceed in the cause. Code, § 274. The time within which the plaintiff is required to serve a copy of the complaint is twenty days after demand (Code, § 130), and, if he neglects to do so, it is proper for the defendant to move for a dismissal of the complaint. If such motion is granted, the action is discon- tinued. Littlefteld v. Murin, 4 How. 306 ; S. C, 2 Code K. 128 ; Oolvin v. Bragden, 5 How. 124 ; S. C, 3 Code K. 188 ; Baker v. Curtiss, 7 How. 478 ; Skinner v. Noyes, 7 Bob. 228, 232. See part 7, ch. 1, art. 1 ; also, ch. 7, art. 2. Section 2. On failure of plaintiff to serve summons on some defendants. The court may also dismiss the complaint with costs, in favor of one or more of the defendants, in case of an unreasonable neglect to serve the summons on other defendants, or to proceed in the action against the defendants served. Code, § 274. See, ante, vol. 2, 607, where this subject is fully treated. Section 3. On failure of plaintiff to bring cause to trial. Under subdivision 4 of section 274 of the Code, which provides for the dismissal of an action in case of an unreasonable neglect to pro- ceed in it, the motion to dismiss must be denied if the delay be shown to be not unreasonable ; and it has been held that if the delay be shown even to be unreasonable the court is not abso- lutely required, under the subdivision named, to dismiss the complaint (Perkins v. Butler, 42 How. 102) ; but, on the other hand, may even refuse to entertain the application altogether, on the ground that there is no necessity for it, inasmuch as the defendant had it in his own power to bring the cause to trial as soon as it was reached according to the course and practice of 640 JUDGMENT BY DEFAULT. On failure to furnish security for costs. the court. lb. See Carter v. Clark, 2 Sweeny, 189, 192 ; see, also, vol. 2, ch. 7, art. 2. Section 4. On failure to furnish security for costs. Judgment of dismissal of the complaint, with costs, may also be entered by the defendant on failure of the plaintiff to file security for costs, within the time prescribed by the order of the court ; and this may be done notwithstanding the plaintiff's proceedings have been stayed. Boyce v. Bates, 8 How. 495 ; Hinds v. Wood- bury, 29 id. 379 ; S. C, 19 Abb. 11 ; Glover v. Cuming, 12 Wend. 295 ; Champlin v. Petrie, 4 id. 209. Section 5. On omission of plaintiff to bring in representatives of deceased defendant. So a judgment of dismissal of the com- plaint may be ordered, with costs in favor of a defendant, for an omission of the plaintiff to bring in the representatives of a deceased defendant, when necessary ; but a reasonable time will be allowed by the court for bringing them in. Chapman v. Foster, 15 How. 241. Section 6. On allowance of demurrer to complaint. Judgment by default may also be entered by the defendant, when a demur- rer to the whole complaint has been allowed by the court, with leave to the plaintiff to amend, in case he fails to amend in pur- suance of the permission. Section 7. On allowance of demurrer to reply. And when the plaintiff has failed to reply to a counter-claim which exceeds the amount of his demand, or where a demurrer to such a reply has been allowed without leave to amend, and an application for judgment has been made and granted by the court, under sec- tion 154 of the Code ; or where judgment has been granted upon such a reply as frivolous, without leave to amend — in all these cases the defendant is entitled to the entry of judgment by default. See Code, § 154. ARTICLE III. DEFAULT OF DEFENDANT TO ANSWEE. Section 1. On default of one of several defendants. If any one of a number of defendants, severally liable, fail to answer, judg- ment may be taken against him (Code, § 136) ; but this right to take judgment on default against one defendant, before the other has answered or made default, exists only where a several judg- JUDGMENT BY DEFAULT. 641 Partial default to anawer. ment is proper, and a judgment is not authorized against both defendants even to affect partnership property. In an action on contract, against defendants jointly liable, no judgment can reg- ularly be entered until the time to answer of all the defendants served has expired. Jacques v. Greenwood, 1 Abb. 230. And where defendants are only jointly liable, judgment cannot be entered against one until the claim against all of them is decided. Catlin v. Latson, 4 Abb. 248 ; S. C, 13 How. 511 ; Sluyter v. Smith, 2 Bosw. 663. See Ford v. David, 1 Bosw. 569. Defend- ants who are jointly and severally liable may be treated as if severally liable. Stannard v. Matlice, 7 How. 4. By an amendment to section 136 of the Code, it is provided that, ' ' if the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plain- tiff, in case the judgment therein shall remain unsatisfied, may, by action, recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action ; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action." Code, § 136, subd. 4. See Lane v. Salter, 51 1ST. Y. (6 Sick.) 1. Section 2. On default of all defendants. On failure of all the defendants to answer, judgment may be had by the plaintiff in the manner described by section 246 of the Code, and as will be fully explained in subsequent articles of the present chapter. ARTICLE IV. PARTIAL DEFAULT TO ANSWER. Section 1. Where answer contains no denials, but sets up coun- ter-claim. In actions on contract for the recovery 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, judgment may be had by the plaintiff for the excess of his claim over the defendant's counter-claim. Code, § 246, subd. 1. See, ante, vol. 2, 519. And judgment entered in such case without serving a notice of assessment by the clerk is not irreg- ular. Robbins v. Watson, 22 How. 293. Yol. III.— 81 642 JUDGMENT BY DEFAULT. Statement admitting counter-claim — Defendant's non-appearance on trial. Section 2. Statement admitting counter-claim. A statement admitting the defendant's counter-claim is required to be filed by the plaintiff with the clerk of the court, which statement must be annexed to and constitutes a part of the judgment roll. Code, § 246, subd. 1. For form of statement, see ante, Vol. 2, 520. Section 3. Notice of taxation of costs. Notice of the taxation of costs should of course be given. Judgment thereon. {Title of \ cause.) The plaintiff having filed with the clerk a statement admitting the counter-claim contained in the answer of the defendant, now, on motion of , counsel for the plaintiff : It is adjudged that the plaintiff recover of the defendant dollars, being the excess of the plaintiff's claim over the said counter-claim, together with dollars costs of this action, amounting in the whole to dollars. {Date.) {Signature of cleric.) ARTICLE V. DEPENDANT'S NON-APPEAKANCE ON TEIAL. Section 1. Effect of default. Where the defendant fails to ap- pear on the trial the plaintiff may waive a jury and take an inquest before the court in a cause at the circuit, out of its regu- lar order on the calendar, and judgment may be regularly entered in his favor. Haines v. Davis, 6 How. 118; S. C, 1 Code R. N. S. 407. It seems, however, that this should be done before the jury are discharged for the circuit. lb. Section 2. Inquest. At the taking of the inquest as above, the defendant is entitled to appear and cross-examine the plaintiff's witnesses, etc., as fully stated in treating of the subject of Trial. See, ante, 57. ARTICLE VI. plaintiff's failuke to reply. Section 1. Effect of failure to reply. Where the answer con- tains a statement of new matter constituting a counter-claim, and the plaintiff fails to reply or demur thereto within the time pre- scribed by law, application for judgment may be made by the defendant. Code, § 154. So where the court orders a reply to JUDGMENT BY DEFAULT. 643 Notice of application for judgment — Affidavits and other papers. be made to new matter in the answer not constituting a counter- claim, the same course may be adopted on failure of the plaintiff to reply. Code, § 153. See ante, Vol. 2, 520. Section 2. Notice of application for judgment. The motion for judgment in such case must be made upon a notice of not less than ten days. Code, § 154 . For form of notice see ante, Yol. 2, 521. Section 3. Affidavits and other papers. The papers required on the motion, are the summons, complaint, answer, notice of motion, the usual affidavit of service of the answer made by the person who served it, and an affidavit by the attorney, or his principal clerk, that no reply has been received. If the answer contains no counter-claim, a certified copy of the order, requir- ing a reply, and an affidavit of service of such order, should also be presented to the court. See Brown v. Spear, 5 How. 146 ; S. C, 9 N. Y. Leg. Obs. 97; 3 Code R. 192. Judgment can be ren- dered only by the court when sitting as such. Aymar v. Chace, 12 Barb. 301 ; S. C, 1 Code R. N. S. 330. See ante, Yol. 2, 521. Affidavit of no reply. {Title of cause.) { Venue.) A. B., being duly sworn, says ! I. That he is the (managing clerk in the office of the) defendant's attorney in this action. II. That the answer herein was served on the plaintiff's attor- ney on the day of , 187 ,and that no copy of any reply or demurrer has been served on deponent {or on , the defendant's attorney herein.) {Jurat.) {Signature.) Section i. Writ of inquiry. If the case is of such a nature as requires it, a writ of inquiry may be issued to assess damages (Code, § 154), the proceedings upon which will be similar to those upon the writ or order granted upon failure to answer. Section 5. When judgment may be entered. On the papers above described the motion for judgment may be heard, and if granted absolutely, the judgment may be at once entered. x Order -for judgment for want of a reply. {Title of cause.) {At a special term, etc) On reading and filing the affidavit of A. B., by which it appears that the defendant's answer herein, setting up a counter-claim, 644 JUDGMENT BY DEFAULT. Judgment without application to court. was duly served on the plaintiff, more than twenty days since, and that no reply or demurrer thereto has been interposed by the plaintiff, It is ordered, that judgment be entered herein in favor of the above-named defendant against the above-named plaintiff for the sum of dollars {or state other relief sought) besides the costs and disbursements of this, action, together with dol- lars, costs of this motion. Form of judgment thereon. {Title of cause.) The defendant in this action, having duly served his answer on , day of last, setting up a counter-claim to the plain- tiff 's cause of action, and the plaintiff having failed to reply or demur thereto, now, on motion of E. F., for defendant : It is adjudged, that said defendant recover, etc., {as in preced- ing form). ARTICLE VII. JUDGMENT WITHOUT APPLICATION" TO COTJKT. Section 1. In what cases the clerk may enter judgment without order of court. The entry of judgment by default in certain cases, without application to the court, is authorized by subdi- vision 1 of section 246 of the Code, by the provisions of which judgment may be so entered in any action upon contract for the recovery of money only where the summons has been personally served, and the defendant has failed to answer. As to the class of actions to which these provisions are applicable, the rule hag been stated to be, "that where the action is brought for the recovery of a money demand, or a sum certain, judgment may be perfected without application to the court ; but in all other cases such application should be required." Flynn v. The Hud- son River M. M. Co.,'6 How. 308 ; S. C, 10 K". Y. Leg. Obs. 158 ; Tuttle v. Smith, 6 Abb. 329 ; S. C, 14 How. 395. See Mason v. Hand, 1 Lans. 66. Section 2. Proof of default. In order that the plaintiff may obtain judgment as above provided, he is required to file with the clerk proof of personal service of the summons, or of the summons and complaint, if served together, upon the defendant or defendants against whom judgment is demanded, and, also, proof of the fact that no answer has been received. Code, § 246, subd. 1. A demurrer is included in the term "answer" within JUDGMENT BY DEFAULT. 645 Proof of default. the meaning of this section, and hence judgment cannot be taken by the plaintiff if a demurrer has been served. Brodhead v. Broadhead, 3 Code R. 8 ; S. C, 4 How. 308 ; Kelly v. Downing, 42 N. Y. (3 Hand) 71, 77. Judgment cannot be entered on default, where the answer is regularly served within the proper time, however imperfect the statements contained in it may be {Spencer v. TooTcer, 12 Abb. 353 ; S. C, 21 How. 333 ; Bergman v. Howell, 3 Abb. 329 ; Strout v. Curran, 7 How. 36) ; but if it be required that an answer should be verified by the oath of the party, and it is served without such verification, or if.it be otherwise irregularly served, it may be returned, and the plaintiff may proceed for the want of an answer. lb. ; Farrand v. Heroeson, 3 Duer, 655 ; Philips v. Prescott, 9 How. 430. He does so, however, at his peril, in case his objection is not sustained, and if his own pleading be irregular, the pleadings of both may be allowed to stand. Bank of State of Maine v. Buel, 14 How. 311. The affidavit that no answer has been received must show that no answer has been received within twenty days after the service of the summons. This rule is in accordance with the settled practice of the court, under which an answer served after the expiration of the time to answer, but before application for judgment, is ineffectual. See MeOown v. Leavenworth, 2 E. D. Smith, 24, 31. See Brien v. Casey, 2 Abb. 416, in which it is held, that the affidavit must show that no answer has been received up to the time of noticing the application for judgment ; and an affidavit made five years previous to such application was held insufficient. Care should be taken by the plaintiff, or his attorney, that judgment be not signed prematurely, and until the time to answer has fully expired. Where, on receipt of the summons, the defendant duly demands a copy of the complaint, the time runs from service of that copy. But if the summons is' served alone, subsequent service of a copy of the complaint without demand, but in connection with other proceedings, will not change the time, which, in such case, will run from the ser- vice of the summons. Van Pelt v. Boyer, 7 How. 325. The plaintiff must wait the whole of the last day for the expiration of the time allowed, but will be regular in signing judgment the first thing on the succeeding morning. The entry of judgment, where there is an omission to file an affidavit that no answer has been received, is not a ground for an appeal to the court of 646. JUDGMENT BY DEFAULT. Affidavit of no answer — Assessment by clerk, when necessary. highest resort, but is merely a question of practice, on which the decision of the general term is conclusive. Catlin v. Bil- lings, 16 1ST. Y. (2 Smith) 622. The want of such an affidavit would, however, render the judgment irregular, and it would be set aside on motion, except in a case where the defendants are jointly liable, when it would be unnecessary. Catlin v. Latson, 4 Abb. 248 ; S. C, 13 How. 511. Affidavit of no answer. SUPREME COURT. A. B., plaintiff, agst. C. D., defendant. County of , ss. : E. F., being duly sworn, says that he is (the managing clerk in the office of D. M., the) plaintiff attorney in the above-enti- tled action, and that no answer or demurrer to the complaint in said action or copy thereof has been received by plaintiff attor- ney. Subscribed and sworn to before me, ) this day of , 187 . j {Signature of attorney or cleric.) Section 3. Assessment by clerk, when necessary. If the com- plaint be verified, the clerk enters judgment for the amount claimed without proof, no regular assessment being necessary. But where the complaint is not verified, the clerk must assess the amount due to the plaintiff, if the action is brought upon an instrument for the payment of money only, as a bill, note, bond, etc., by an examination of the instrument itself. In other cases, where the demand 'is not dependent upon a written instrument, as in an action for goods sold and delivered, work, labor, and services, money lent, etc., the clerk, before entering judgment, ascertains the amount which the plaintiff is entitled to recover, from his examination under oath, or other proof. Code, § 246, subd. 1. See Hurd v. Leavenworth, 1 Code H. 1ST. S. 278 ; Trapp v. The New Torlc and Erie E.B. Co.; 6 How. 237 ; S. C, 1 Code E. 1ST. S. 384. In the cases above provided for the amount of the plaintiff's recovery must be assessed by the clerk, and a reference ordered for the purpose will be irregular. Croden v. Brew, 3 Duer, 652 ; S. C, 6 Abb. 338 (n). Where the assessment made is the amount due on an instru- JUDGMENT BY DEFAULT. 647 Assessment by clerk, when necessary. ment produced to the clerk, a formal report has been held to be unnecessary. The Code does not require it, and as the clerk in such cases must enter the judgment for the amount he has assessed, the judgment roll is evidence that he did his duty in respect to assessing the amount due. American Exchange Bank v. Smith, 6 Abb. 1. But where the examination of the plain tin 7 or other proof has been taken, it is held that the clerk should make and file with the judgment roll a regular report of his finding, analogous to the former practice of making and filing reports upon assessment of damages. Squire v. Hlsworth, 4 How. 77. Section 4. Notice of assessment, when necessary. In all cases where the complaint is either not verified at all or is unduly veri- fied, and the defendant has given notice of appearance in the action, either in direct form or by proceedings which amount to an appearance, he must have five days' notice of the time and place of the assessment, and if the judgment is entered without such notice it may be set aside as irregular. Code, § 246, subd. 1; Tan Home v. Montgomery, 5 How. 238; Quin v. Tilton, 2 Duer, 648 ; Cook v. Pomeroy, 10 How. 221 ; King v. Stafford, 5 id. 34. It has been held that a notice of appearance served after the time for answering has expired entitles the defendant to notice of assessment, unless the assessment has already been made. Abbott v. Smith, 8 How. 463 ; Carpenter v. New Haven B. B. Co., 11 id. 481. See White v. Feather stonhaugh, 7 How. 357, where the contrary is maintained ; see, also, Lynde v. West, 12 "Wend. 235 ; Cook v. Pomeroy, 10 How. 221 ; Pearl v. Bobitschek, 2 Daly, 50. In a case where the recovery of money only is sought, and the complaint has been duly verified, a defendant who has failed to answer, though he may have appeared, is not entitled to any notice of assessment whatever, and judgment may be entered as of course. Southworth v. Curtis, 6 How. 271 ; S. C, 1 Code R. K S. 412 ; Dick v. Palmer, 5 How. 233 ; S. C, 3 Code R, 214. So where the plaintiff admits the defendant's counter-claim and takes judgment for the balance, it is not irregular to enter up judgment without serving a notice of assessment by the clerk. Bobbins v. Watson, 22 How. 293. As to what constitutes sufficient notice of the assessment, see Kelsey v. Covert, 15 How. 92 ; S. C, 6 Abb. 336 (n) ; Anonymous, 4 Sandf. 693 ; Oothout v. Booth, 12 Johns. 151. 648 JUDGMENT BY DEFAULT. Proof of notice — Judgment on application to court. Notice of assessment of amount of recovery. {Title of cause.) TaTie notice that the amount due to the plaintiff upon the in- strument mentioned in the complaint will be assessed {or, if the action is not on a written instrument for the payment of money only, that the amount which the plaintiff is entitled to recover in this action will be ascertained), and his costs and disburse- ments, the items whereof are herewith stated, will be adjusted by the clerk of , at his office in , on the day of ,18 , at o'clock in the noon. {Bate) {Signature of plaintiff ' s attorney. ) {Address.) Section 5. Proof of notice. The necessary proof of service of the notice of assessment, in cases where the defendant has appeared, and is entitled to it, should be prepared in due form to be available as ground for an ex parte entry of judgment, in the event of the defendant' s non-appearance. ARTICLE VIII. JUDGMENT ON APPLICATION TO C0T7KT. Section 1. Application, when necessary. As before stated {ante, 561, ch. 1, art. 1, § 1), application for judgment, on failure of the defendant to answer, must be made to the court, in all actions other than those arising on contract for the recovery of a money demand or sum certain. In other words, where the summons has been issued under subdivision 2 of section 120 of the Code, it is necessary to make application to the court for the entry of the judgment sought. See Code, § 246, subd. 2 ; Flynn v. The Hudson River R. R. Co., 6 How. 308 ; S. C, 10 1ST. Y. Leg. Obs. 158. Where the action is brought for the recovery of a definite sum of money, as such, and without calling upon the court to ascer- tain or adjudge any thing but the existence and terms of the con- tract by which it is due, judgment may be entered on failure of the defendant to answer, without application to the court. But, where the action is such as to require the determination of amounts unliquidated in their nature, requiring other proof and depending upon other considerations than such as appear in the contract itself, then the action is not for the recovery of money JUDGMENT BY DEFAULT. 649 Application, where made — Notice of application. only, and, on default of the plaintiff to answer, judgment can be entered only upon application to the court. Tuttle v. Smith, 14 How. 395 ; S. C, 6 Abb. 329. See 1 Wait's Pr. 474. Section 2. Application, where made. The application for judg- ment may be made at any special term, in the district embracing the county in which the action is triable, or in an adjoining county (Sup. Ct. Rule 33), unless the trial county is New York. Code, § 401. The application may also be made at a circuit court in the county in which the action is triable. Sup. Ct. Rule 33. The application cannot be entertained by a judge at chambers. Aymar v. Chac'e, 12 Barb. 301 ; S. C, 1 Code R. 1ST. S. 330. Nor can it be heard at a general term. Ryan v. McOannell, 1 Code R. 93 ; S. C, 1 Sandf. 709. See Warner v. Kenny, 3 How. 323 ; S. C, 1 Code R. 96 ; Anonymous, id. 82. As the judges in New York city, however, hold a special term in chambers every day, the application may be made at chambers in that city. Porter v. Lent, 4 Duer, 671 ; S. C, 2 Abb. 115. Section 3. Notice of application. Where the defendant has not appeared at all, the application for judgment is of course ex parte, and no notice whatever is necessary. But, if the defendant gives notice of appeararice in the action, before the expiration of the time for answering, he is entitled to eight days' notice of the time and place of application. Code, § 246, subd. 2. And a judgment taken without notice in such case is irregular, and will be set aside. Saltus v. Kipp, 12 How. 342 ; S. C, 2 Abb. 382 ; 5 Duer, 646 ; Kelsey v. Covert, 15 How. 92 ; S. C, 6 Abb. 336, note; King v. Stafford, 5 How. 30. As to what is an appearance, see 1 Wait's Pr. 556-562. Notice of application. {Title of cause.) Please take wtice, that the plaintiff will apply to this court, at a special term to be held at (etc.), on the day of , 18 , at o' clock in the noon, or as soon thereafter as counsel may be heard, for the relief demanded in the complaint. (Date.) (Signature.). (Address.) Section 4. Affidavit of service and default. The service of the summons and default of the defendant must be proved in the same manner as on the entry of judgment by the clerk. See ante, 644. Vol. III.— 82 650 JUDGMENT BY DEFAULT. Proof of plaintiff's demand — In actions for special relief. In either case the proper proof of such service and default is a sheriff's certificate of service, the defendant's admission, or an affidavit of service by the person who made it and of the non- receipt of an answer by the person who subscribed the summons, or his managing clerk. See Code, § 138. See Form of Affidavit, etc., 1 Wait's Pr. 541 to 544. Section 5. Proof of plaintiff's demand. a. In general. In actions embraced within the provisions of section 246 of the Code, subdivision 2, the plaintiff is allowed to make application to the court for judgment upon "the like proof ' ' to that required upon application to the clerk. By the words " the like proof" is to be understood, the proof of serving the summons and complaint, and that no answer has been received. If the complaint is unverified the plaintiff is required to prove his claim ; but if the complaint be verified, it is then in the discretion of the court to decide whether the plaintiff shall be called upon for evidence or not. See Hurd v. Leavenworth, 1 Code R.-JST. S. 278 ; Depew v. Leal, 2 Abb. 138 (n). In all cases, the facts upon which a plaintiff relies for judg- ment against infant defendants must be established by legal proof (Aldrich v. Lapham, 6 How. 129 ; S. C, 1 Code R. N. S. 408 ; Litchfield v. Burwell, 5 How. 341 ; S. C, 1 Code P. N. S. 42 ; 9 1ST. Y. Leg. Obs. 182), even though the attorney for the guardian of the infant defendants may have consented in writing that such judgment be taken. lb. See James v. James, 4 Paige, 115, 119 ; Cost v. Hose, 17 111. 275. b. In actions for special relief. In actions for special relief, the same notice of the application for judgment is required to be given as in actions for damages. See ante, 649, § 3. So the service of the summons and failure to answer is to be proved in the same manner as on the entry of judgment by the clerk. Ante, 644. If the taking of an account or the proof of any fact be neces- sary in any such action to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. Code, § 246, subd. 2. If damages, as well as other relief, are demanded, the court may assess them itself, or order them to be assessed by a jury, in like manner as in actions for damages alone, or it may order a reference, whether an account is involved or not. lb. Judgment demanded on a mere failure to answer is not ren- JUDGMENT BY DEFAULT. 651 In case of publication of summons. dered as a matter of course in all actions for special relief ; for sometimes proof of the plaintiff's case will be required by the court. Lloyd v. Lloyd, 4 Dru. & War. 372 ; Hayes v. Brierly, 3 id. 274 ; Simmonds v. Pallas, 8 Irish Eq. 335. See Didier v. Warner, 1 Code R. 42. And in every case, unless the complaint shows^ some cause of action, it will be dismissed. Speidall v. Jervis, Dick. 632 ; Molesworth v. Verney, id. 667 ; Simmonds v. Pallas, 8 Irish Eq. 340. Not only must the complaint show a good cause of action, but the facts of the case must justify the particular kind of relief demanded, as none can be granted that is not specified in the complaint. Code, § 275. As costs are wholly in the discretion of the court in actions for special relief (Code, § 306), the plaintiff should see that they are specially granted by the court, or he can enter none in the judgment. c. In case of publication of summons. On application for judgment in actions where the service of the summons was by publication, the court will require proof to be made by the plaintiff of the demand mentioned in the complaint, and if the defendant be not a resident of the State, the plaintiff or his agent must be examined, on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and on such proof judgment may be rendered for the amount which the plaintiff is entitled to recover. Code, § 246, subd. 3. In such cases the plaintiff is required to prove the service of the summons by producing a certified copy or original of the order for publication, the affidavits on which such order was founded, the affidavit of the printer of the newspaper in which the summons was published, or of his foreman or principal clerk, showing that it was published in conformity to the order. He must also produce an affidavit of the mailing of a copy of the summons and complaint to the defendant, or of the personal service of them upon him, and an affidavit or certificate of the filino- of the complaint before the publication. See Hallett v. Righters, 13 How. 43 ; Code, § 138. See 1 Wait's Pr. 516, 531. In actions for the recovery of money only, where the sum- mons has been served by publication under section 135 of the Code, the plaintiff is also required to show by affidavit that an attachment has been issued in the action, and levied upon property belonging to the defendant. This affidavit must con- 652 JUDGMENT BY DEFAULT. Form of affidavit to proceedings. Summons served by publication. tain a specific description of the property, with a statement of its value. Sup. Ct. Rule 34. Form of affidavit to proceedings. Summons served by publi- cation. {Title of cause.) E. B., plaintiff's attorney in this action, being duly sworn, says : I. That on the day of , 18 , an order was duly made herein for service of the summons upon the defendant A. B. by publication, a copy of which order is hereto annexed. II. That the summons and complaint were, on the day of , 18 , duly filed in the office of the clerk of , by this deponent (or, as appears by the affidavit of D. M., or, the certificate of said clerk hereto annexed). III. That the summons was duly served by publication,- and by mailing the same with a copy of the complaint (or, by per- sonal service of the same with a copy of the complaint), as appears by the affidavits of D. M. and R. T. annexed; but that no answer or demurrer herein by said defendant has been served on the plaintiff's attorney, and said defendant has not appeared in the action. IV. Deponent further says, that on the day of , 18 , an attachment against the property of said was duly issued in this action, and delivered to the sheriff of , by whom the same was, on the day of , 18 , at , levied on property belonging to the said defendant, whereof the following is a description : (describe the articles), and that the value of said property is dollars. V. Deponent further says, that said defendant is (or, is not, as the case may be) a resident of this State. (Jurats (Signature.) Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be trans- ferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. Code, § 246, subd. 3. The filing of such security before judgment, in every action for the recovery of money only, is imperatively required by rule 34 of the supreme court, and the omission to do so would render the judgment irregular, though not void. See Sup. Ct. Rule 34. JUDGMENT BY DEFAULT. 653 Undertaking for restitution. Undertaking for restitution. Summons served by publication. (Title of cause.) Whereas, in this action in which service of the summons was made upon the defendant C. D. by publication, the plaintiff is about to apply to the court for judgment upon the failure of the defendant to appear and answer : Now, therefore, we, E. T., of No. street, in the city of , merchant, and K. L. (state Ms residence and occu- pation), do hereby, pursuant to the statute in such case made and provided, undertake that A. B., the plaintiff above named, will obey the order of the court concerning the restitution of any part of the estate or effects which said judgment may direct to be transferred or delivered, or the restitution of any moneys that may be collected under or by virtue of such judgment, in the event of the defendant or any of his representatives apply- ing and being admitted to defend said action, and succeeding in such defense. (Date. ) (Signature. ) (Annex affidavit of sufficiency ; also acknowledgment and approval of judge.) See Forms, ante, Vol. 2, 152. The Code makes no provision for a reference, for the purpose of ascertaining the truth of the complaint, wherte the summons was served by publication (see Chapman v. Lemon, 11 How. 235, 239) ; but the court may, undoubtedly, direct a reference for the examination of the plaintiff concerning payments on account, as this is taking an account before judgment, and within the provisions of section 271 of the Code. Reference to take proof of cause of action and payments. Summons served by publication. (Title of cause.) (At a special term, etc.) Upon the summons and complaint herein, and upon the affi- davit of A. B., dated the day of , setting forth •the proceedings had in this action (and on motion of A. B., for the plaintiff) : Ordered : That i t be referred to C. D. , Esq. , of , counselor at law, to take proof of the demand alleged in the complaint of the plaintiff herein (or state particular inquiry), and to examine the plaintiff, or his agent, on oath, respecting any payments that hare been made to said plaintiff, or to any one for his use, and to report to the court with all convenient speed. On account of the delay and expense attendant upon a refer- ence, it should not be ordered except in unavoidable cases. 654 JUDGMENT BY DEFAULT. Order for judgment — Assessment of damages. Order for judgment. Summons served by publication. {Title of cause.) (At a special term, etc.) The summons and complaint in this action having been filed in the office of the clerk of (this court in) the county of , on the day of , 18 , and the defendant M. N. being a foreign corporation, having property within this State (or state other ground for service by publication, as the case may have been), service of the summons upon such, defendant, by publication, having been ordered, and the summons having been duly published in the , and the , once in each week for six successive weeks (or otherwise, as the case may be), as directed in the order for publication, commenc- ing on the day of , 18 ; and a copy of the sum- mons and complaint having been duly mailed to (or, having been thereafter personally served on) said defendant M. 1ST. (addressed to their president X. Y., at ) ; and the said defendant having failed to answer or demur to said complaint, or to appear herein, and an attachment having been issued against and levied upon property belonging to the said defendant M. N., and proof thereof made by the affidavit of X. Y. ; and the plaintiff having now, in court, made proof of the demand mentioned in the com- plaint, and it appearing by the examination of (X. Y., the agent of) the plaintiff on oath that no payments that have been made to the plaintiff, or to any one to his use, on account of such demand (or if any were made, state the amount) ; and the plain- tiff having produced an undertaking, with two sureties, approved by the court, that he will make restitution according to the re- quirement of subdivision 3 of section 246 of the Code ; Now, on filing said affidavit of X. Y. and said undertaking, and on motion of X. Y., plaintiff's attorney, it is ordered that the plaintiff, D. E., recover against the defendant, M. N., the sum of dollars, together with his costs, to be adjusted by the clerk. (Signature of justice.) Judgment thereon. On motion of X. Y. it is hereupon adjudged that the plaintiff, D. E., recover against M. N., the defendant, the sum of ' dol- lars, together with dollars costs and disbursements, amount- ing in the whole to dollars. > (Bate.) (Signature of clerk.) Section 5. Assessment of damages. a. How made. Where the action is for the recovery of money only, or of specific real or personal property, with damages for its detention, the court may order the damages to be assessed by a Jury, or > if the examination of a long account is involved, by JUDGMENT BY DEFAULT. 655 Where made — Assessment by sheriff 's jury. a reference. Code, § 246, subd. 2. And a judgment by default cannot be taken in an action of this kind without an assessment [Dutch Reformed Church v. Wood, 8 Barb. 421), nor can a refer- ence be ordered unless the case is one involving the examination of a long account. Boycev. Oomstock, 1 Code R. N". S. 290 ; Hew- itt v. Howell, 8 How. 346 ; Horn v. Doody, 4 Duer, 670 ; S. C, 2 Abb. 92. The court may, however, itself assess the damages, with- out the aid of a jury or referee ; and the advantages of such a course consist in the saving of referees' and jurors' fees, and what is of more importance, of the time required by a reference or writ of inquiry. Depew v. Leal, 2 Abb. 138 (n) ; Gale v. Rub- tins, id. It has been held that in an action for the recovery of specific property the plaintiff may waive his claim for damages for the detention, and may take judgment without any assessment {Horn v. Doody, 4 Duer, 670; S. C, 2 Abb. 92); but this can be allowed in an action for chattels, only where the plaintiff has obtained possession of the goods, for otherwise the judgment must be in the alternative for their return, or their value if they cannot be had (Code, § 277) ; and the value must therefore be assessed, as it cannot properly be put in issue, not being a traversable matter. Oonnoss v. Meir, 2 E. D. Smith, 314 ; McKensie v. Farrell, 4 Bosw. 192. Under the former practice a writ of inquiry was never ordered in an equity suit*, and a sheriff 's jury would have no jurisdiction to assess damages. So under the Code an order allowing a writ of inquiry to have the damages assessed by a sheriff's jury in an equity case is altogether null and void, even though such order be entered on the consent of the defendant's attorney. In such case a reference is, the proper course. Kreitz v. Frost, 55 Barb. 474 ; Hill v. McReynolds, 30 id. 488. o. Where made. The assessment is required to be made in the county in which the action is triable, unless the court shall other- wise order (Sup. Ct. Rule 33); and if made in any other county the assessment will be irregular and the proceedings had thereon void, and will be set aside on motion. Brush v. Mullany, 12 Abb'. 344. Section 6. Assessment by sheriff's jury. a. When proper. It is the regular course to direct the assess- ment to be made by a sheriff's jury (see Horn v. Doody, 4 Duer, 670 ; S. C, 2 Abb. 92 ; Richards v. Swetser, 3 How. 413 ; S. C, 1 656 JUDGMENT BY DEFAULT. Order for writ of inquiry. Code E. 117 ; Stanley v. Anderson, id. 52 ; Cazneau v. Bryant, 4 Abb. 402 ; S. C, 6 Duer, 668), but the court, in its discretion, may order an assessment at the circuit or trial term, and this is sometimes done in a case involving complicated questions of law, or where any incapacity exists on the part of the sheriff to act, or where there is any difficulty in regard to mitigating circum- stances, lb. ; Dillaye v. Hart, 8 Abb. 394 ; McCollum v. Barker, 3 Johns. 153 ; George, Count Joannes, v. FisTc, 3 Bob. 710. So when public feeling has become strongly enlisted in the case to such an extent that it becomes necessary, for the protection of the rights of the parties, that they should be allowed to challenge jurors, the court will permit the assessment to be made at the circuit. Dillaye v. Hart, 8 Abb. 394. The fact that the attorneys for the defendant are also the regu- lar attorneys and counsel of the sheriff, is not a sufficient reason for ordering an assessment before the court and a jury. Hays v. Berryman, 6 Bosw. 679. And where, in an action for libel, the plaintiff has procured an order to have the damages assessed by a sheriff's jury, he cannot have the order vacated, and have the damages assessed before the court, unless something new has been discovered, rendering it proper that the change should be made. George, Count Joannes, v. FisTc, 3 Rob. 710 ; Cozneau v. Bryant, 4 Abb. 402; S. C, 6 Duer, 668. Where the sheriff of the trial county is disqualified to act from interest, or other cause, the assessment should be made by a coroner. o. Order for writ of inquiry. Form of. {Title of cause.) {Caption.) On reading and filing (the affidavits of A. B. and C. D.) and the summons and complaint herein, and it appearing by the com- {)laint that the action is for the recovery of money only {or, is or the recovery of specific real property, or personal property), with damages for its detention; now, on motion of E. F., of counsel for the plaintiff, it is adjudged that' the plaintiff do recover of the defendant the damages by him sustained on ac- count of the cause of action alleged in the complaint (and that he do recover also the possession, etc.) ; and, further, it is ordered that said damages be assessed by a jury, and that a writ of inquiry be for that purpose issued, directed and. delivered to the sheriff of county. v JUDGMENT BY DEFAULT. 657 Writ of inquiry —Order for sheriff 's jury. The order for the writ of inquiry must be filed with the clerk, who, thereupon, must seal a writ of inquiry, which may be in the following form : [Seal.} Writ of inquiry. The people of the State of New York, to the sheriff of the county of greeting : Whereas, in an action brought by John Smith against John Jones in our supreme court, such proceedings were had upon the personal service of the summons therein upon said Jones, that the said John Smith obtained an order of the said court, directing the plaintiff' s damages in the said action to be assessed by a jury, a copy of the complaint in said action being here- unto annexed ; Therefore we command totj that, by the oaths of twelve good and lawful men of your county, you diligently inquire what damages the said John Smith has sustained by reason of the matters alleged in the said complaint ; and that you return your inquisition hereupon, under your seal, and the seals of those by whose oath you take such inquisition, together with this writ, to the clerk of the county of , on or before the day of , 18 . Witness, Hon. J. P., justice, at the court-house, in the city Of , in the county of , this day of , 18 . {Signature of clerh.) {Signature of plaintiff ' s attorney.) The writ of inquiry must be served upon the sheriff imme- diately. c. Order for sheriff's jury. By some judges an order for a sheriff's jury to assess damages is made, without the formality of a writ of inquiry. And this practice would seem to be justi- fied by the language of the Code, section 246, which directs that the court may order an assessment by jury, and is wholly silent in reference to ordering a writ of inquiry. Where no writ of inquiry is ordered, the following is the appro- priate form :, Order for sheriff's jury. (Title of cause.) {Caption.) On reading and filing (the affidavits of A. B. and C. D.), and the summons and complaint herein, on motion of (etc.) : Ordered: That the plaintiff recover judgment, and that the sheriff of the county of assess by the oaths of twelve good and lawful men the plaintiff's damages in the premises, and Vol. III.— 83 658 JUDGMENT BY DEFAULT. Order for assessment at circuit — Notice of inquiry. return his proceedings hereupon under his and their seals to the clerk of the said county, within days after service of this order. A certified copy of this order is required to be served on the defendant, in case he has appeared in the action. d. Order for assessment at circuit. The order to assess dam- ages at the circuit may also provide for the issuing of a writ of inquiry, but such a proceeding seems to be wholly unnecessary. In the execution of the order the judge acts in his own judicial capacity, and is not merely the assistant of the sheriff. Ells- worth v. Thompson, 13 Wend. 658. Form of order to assess damages at the circuit. (Title of cause.) (Caption.) On reading and filing (the affidavits of A. B. and C. D.), and the summons and complaint herein, on motion of (etc. ) : Ordered: 1. That the plaintiff recover judgment. 2. That his damages in the premises be assessed by the oaths of twelve good and lawful men, under the direction of the judge holding the circuit court (or trial term) at , commencing on the day of , 18 . 3. That the said judge return the inquisition hereupon to the clerk of the county of , duly certified by him, within days from the date hereof. If the defendant has appeared in the action, a copy of the above order should be served upon him ; and a certified copy should also be served upon the judge holding the circuit or trial term, at the commencement of the same. e. Notice of inquiry. Where the defendant has appeared in the action, he is entitled to notice of the time and place of the assessment ; which will be fixed by the sheriff on application to him. See Code, § 414; Kelseyv. Covert, 6 Abb. 336 (n.) ; Saltus v. Kip, 2 Abb. 382 ; S. O, 5 Duer, 646 ; S. C, 12 How. 342. But, to be entitled to such notice he must have appeared in the action 'before the expiration of the time for answering." Pearl v. RobitscheTi, 2 Daly, 50. See Abbott v. Smith, 8 How. 463. It seems that a defendant not served with process, but jointly charged with another, will be entitled to notice of assessment if he anticipates the service by appearing in the action. Pearl v. RobitscheTc, 2 Daly, 50. The same notice is required as in cases of trial, namely, fourteen days. Code, § 256. Under the old practice, the form of the notice was peculiar, the JUDGMENT BY DEFAULT. 659 Form of notice of inquiry before the sheriff. time being required to be stated between two certain hours, as between the hours of 10 and 12 o' clock in the forenoon." Arnold v. Squire, Sayer, 181. A notice which, however, specified a pre- cise hour, as " at 11 o' clock," was held to be good. Last v. Denny, Barnes, 302. A notice that the writ would be executed " by 10 o'clock," was held bad for uncertainty. Ison v. Fowen, 2 Str. 1142. So a notice that the writ would be executed "between 10 and 2 o'clock" (Foster v. Smales, Barnes, 295), or "at 10 o'clock, or as soon thereafter as the sheriff can attend," was also held bad for uncertainty. • Hannaford v. Sblman, Barnes, 295. These rules are not applicable where the damages are to be assessed at the circuit or trial term, and the notice may be in the common form of a notice of trial, the judge appointing a day and hour for the execution of the writ. See 1 Tidd' s Pr. 579 ; 1 Sellon, 353. In such case the notice must be served fourteen days before the commencement of the term ; the service being made on the defendant' s attorney in the usual manner. The notice will not be vitiated by a mistake in it, unless the defendant is actually misled thereby. Thus a notice for " Wed- nesday, the 11th of June," when Wednesday fell on the 10th, was held to be good, the writ having been executed on the Wed- nesday (Eldon v. Haig, 1 Chit. 11); and so a notice given for "Tuesday, the 14th," although the 14th fell on Thursday, was held good, the writ being executed on the latter day (Batten v. Harrison, 3 Bos. & Pul. 1), and the defendant failing in either, case to swear that he was misled by the error. Form of notice of inquiry before the sheriff (Title of cause.) Take notice that the damages which the plaintiff in this action is entitled to recover will be assessed before , Esq., sheriff of the county of , at , in , on the day of , 18 , between the hours of and o'clock in the noon. (Signature of plaintiff's attorney.) (Date) (Address to defendants attorney.) Notice of inquiry at the circuit. (Title of cause.) «,..,. Take notice that the damages which the plaintiff m this action is entitled to recover will be assessed at a circuit court (or, at a trial term of this court), to be held at (etc.), on (etc.). (Date and address.) (Signature.) 660 JUDGMENT BY DEFAULT. Procuring evidence — Proceedings before jury. Under the practice previous to the Code the notice might be countermanded if necessary, by the service of a notice of coun- termand at least six days before the day appointed for the exe- cution of the writ (Grab.. Pr. 797 ; 1 Burr. Pr. 376) ; and the same rule is probably valid under the Code. Countermand of notice of inquiry. {Title of cause.) Sir : The notice of inquiry heretofore served upon you is hereby • countermanded. {signature.) {Date and address.) After the notice of inquiry has been countermanded, notice must of course be given again de novo. f. Procuring evidence. Evidence on the assessment is pro- cured in the same manner as in case of a trial. Witnesses may be subpoenaed, or their testimony be otherwise obtained if neces- sary. Thus it is proper to issue a commission to take testimony on an assessment of damages. See Laws of 1862, ch. 375, p. 628. The form of the subpoena to be used is the same as that in use upon ordinary trials, with the exception that it requires the wit- ness to appear "before the sheriff or under-sheriff of the county of ." See Tillotson v. Cheetham, 2 Johns. 63, 70. g. Proceedings before jury. The same proceedings may be taken on the assessment before the sheriff under the Code as were formerly proper on executing a writ of inquiry. Saltus v. Kip, 12 How. 342 ; S. C, 2 Abb. 382 ; 5 Duer, 646. The former practice in this respect is substantially continued by the Code, only that, in cases where the taking of an account or the proof of any fact is necessary to enable the court to give judgment, the court may in its discretion order a reference for that purpose. Kreitz v. Frost, 55 Barb. 474. The sheriff, under-sheriff or dep- uty may conduct the inquest {Tillotson v. Cheetham, 2 Johns. 63, 72), and the manner of proceeding is substantially the same as that on a trial in court, though less formality is observed. See 1 Burr. Pr. 377. The inquest must be held at the time and place specified in the notice, even if the defendant fails to attend ; and if not so held it will be set aside, on motion. Jones v. Chune, 1 Bos. & Pul. 364. The sheriff is not, however, bound to execute it within the precise hours mentioned in the notice, and, if neces- JUDGMENT BY DEFAULT. 661 Proceedings before jury. sary, the defendant must wait after those hours have expired. Williams v. Frith, 1 Doug. 198. The jurors cannot be challenged, in the fall sense of the term, pn a writ of inquiry of damages, for the reason that it is only an inquest of office, and the sheriff does not act in a judicial capacity. Anonymous, 3 Salk. 81 ; TiUotson v. Cheetham, 2 Johns. 63, 69 ; Dillaye v. Hart, 8 Abb. 394. But, see George, Count Joannes, v. Fisk, 3 Rob. 710. If, however, there is any legal or valid objection to a juror, it ought to be openly and publicly stated, and the sheriff may then set aside the juror against whom the objection is made, and summon another ; or, if he should refuse to do so, it would be ground for an applica- tion to set aside the inquisition. Butler v. Kelsey, 15 Johns. 177. Thus the court will set aside the inquisition if notoriously unfit persons are put on the jury (Stainton v. Beadle, 4 Term R. 473) ; or if the sheriff, at the private request of one of the par- ties, removes a juror. Butler v. Kelsey, 15 Johns. 177. But the verdict of a jury, on the execution of a writ of inquiry, will not be set aside merely because the persons summoned as jurors were not on the list prepared by the commissioner of jurors, no objection having been made on executing the writ, and it not appearing that the persons were not fit and competent jurors. Jennings v. Asten, 3 Abb. 373 ; S. C, 5 Duer, 695. The rules as regards evidence, on the inquest, are the same as upon an ordinary trial ; but, as the cause of action is admitted by the default of the defendant, the plaintiff need not bring for- ward evidence for the purpose of establishing it, and any evi- dence on behalf of the defendant, tending to prove that no right of action existed, or denying the cause of action, is irrelevant and inadmissible. Foster v. Smith, 10 Wend. 377 ; Green v. Rearne, 3 Term R. 301 ; East India Co. v. Glover, 1 Str. 612 ; Thellusson v. Fletcher, 1 Doug. 315 ; Livingston v. Douglas, 2 Dowl. P. C. 630 (n); Stephens v. Pell, 2 Cromp. & Mees. 710. The only question to be taken into consideration by the jury is the amount of damages to which the plaintiff is entitled. Foster v. Smith, 10 Wend. 377 ; De Gaillon v. L'Aigle, 1 Bos. & Pol. 368. And, in an action for breach of contract, evidence that the con- tract was not made, or was void, is inadmissible (Mast India Co. v. Glover, 1 Str. 612 ; De Gaillon v. I? Aigle, 1 Bos. & Pul. 368), as is also evidence of a set-off that might have been pleaded. See Caruthers v. Graham, 14 East, 578. So, in an action for a 662 JUDGMENT BY DEFAULT. Inquisition and return. wrong, evidence that the act was lawful is inadmissible, even though offered in mitigation of damages. Foster v. Smith, 10 Wend. 377. But any matter which properly goes to mitigate damages may be proved by the defendant, and for that purpose he may call witnesses. Gilbert v. Rounds, 14 How. 46 ; Lane v. Gilbert, 9 id. 150 ; Warner v. Kenny, 3 id. 323 ; S. C, 1 Code R. 96. The complaint may properly be read to the jury as evidence of the facts alleged therein, but not as evidence of the amount of damages the plaintiff is entitled to recover, the latter not being admitted by the default of the defendant. Jennings v. Asten, 5 Duer, 695 ; S. C, 3 Abb. 373. The plaintiff is entitled to recover nominal damages, at all events, even though he produce no evi- dence on the inquest; and a verdict for the defendant will be set aside under all circumstances. Jackson v. Rathbone, 3 Cow. 296 ; Marshall v. Griffin, Ryan & Moo. IS". P. 41 ; Reigne v. Dewees, 2 Bay, 405. If the plaintiff, in an action for an assault and battery, claims more than nominal damages, he must prove the facts that will entitle him to recover them (Bates v. Loomis, 5 Wend. 134 ; Gil- bert v. Rounds, 14 How. 46), but in an action for slander the rule is otherwise. Tripp v. Thomas, 3 Barn. & Cres. 427. The inquest may be, adjourned, when necessary, and this should be done when prolonged to a late hour on Saturday night, as the inquisition is not good if taken on Sunday. But- ler v. Kelsey, J 5 Johns. 177. See "Trial," and "Inquest," ante, 53. h. Inquisition and return. It is the duty of the jury to deliberate and agree upon their verdict, 'as soon as may be, after the submission of the case to them ; and it is an irregu- larity for them to hear evidence in several causes before retiring to decide any. Such irregularity may, however, be waived by the assent of the parties. If not waived the error is not a ground for appeal, but only for a motion to set aside the inquisition. Van Waggenen v. McDonald, 3 Wend. 478. See Golden v. Knickerbacker, 2 Cow. 31. It has been said that the inquisition should be signed and sealed in the name of the sheriff, and by the jurors. See 2 Chit. Arch. Pr. (12th ed.) 1003; 1 Burr. Pr. 377. But see Scott v. Rushman, 1 Cow. 212(n). See, also, 2 Til. & Shear. Pr. 267. A blank form of inquisition should be left with the sheriff at JUDGMENT BY DEFAULT. 663 Form of inquisition — Setting aside inquest. least one day before it is to be executed, indorsed with, a mem- orandum of that day. 1 Burr. Pr. 377 ; 2 Til. & Shear. Pr. 264. After the blank form of inquisition has been filled up, the sheriff should indorse his return on the writ or order, in the fol- lowing or some similar form : "The execution of the within writ appears by the inquisition hereunto annexed." {Bate.) {Signature of sheriff.) Form of inquisition. State of New York, ) . County of ) " An inquisition, taken on the day of , 18 , at the court-house, in the village of , in the county of , before me A. B., sheriff of said county, by virtue of a writ of inquiry {or, order to assess damages) to me directed, to inquire of certain matters by the oaths of {here name the jurors) twelve good and lawful men of the said county, who, being sworn, say that the plaintiff has sustained damages to the amount of dollars, by reason of the matters mentioned in the said writ {or order) {or that the value of the property men- tioned in the said is dollars.) In witness whereof, I, the said sheriff, and we, the said jurors, have set our hands and seals, the day and year above written. {Signed and sealed by sheriff and jurors.) i. Setting aside inquest. In a proper case either party may move to set aside the inquest, and the grounds upon which the motion to set aside will be entertained are similar to those of a motion to set aside a verdict, and for a new trial. 1 Burr. Pr. 379. And the proceedings upon the motion are so nearly analo- gous to those taken in the latter case that, for a full statement of them, it is only necessary to refer generally to that subject as treated under the head of trial. See ante, 394. Motion to set aside the inquest is the only remedy allowed against errors which do not appear on the record, where judg- ment is thus taken. Van Waggenen v. McDonald, 3 Wend. 478. Thus, if the sheriff's jury hear more causes than one, before assessing the damages of any ; or if the inquisition is made on a Sunday ; or, if a juror is stricken off at the private request of a party, or if improper persons are retained upon the jury, after due objection made to them, the inquest will be set aside on motion. Butler v. Kelsey, 15 Johns. 177. So, if notoriously 664 JUDGMENT BY DEFAULT. Assessment at circuit. unfit persons are placed on the jury (Stainton v. Beadle, 4 Term R. 473), or if the assessment is taken in the absence of the defendant, at a time or place other than that specified in the notice, it may be set aside. Jones v. Chune, 1 Bos. & Pul. 364. The inquisition will also be set aside where improper evidence has been admitted on the part of the defendant ; as where the defendant has been allowed to introduce evidence in denial of the cause of action {Be Gaillon v. ISAigle, 1 Bos. & Pul. 368) ; but if no injustice has been done by the introduction of such evidence, the court will not interfere. Ward v. Haight, 3 Johns. Cas. 80. Nor will the court interfere to disturb the assessment of the jury on account of the smallness of the damages alone, unless there is clearly a mistake of fact [Mechanics' Bank v. Min- thorne, 19 Johiis. 244) ; or a mistake of the jury or sheriff in point of law (Weale v. Wyllie, 3 Barn. & Cres. 533 ; Woodford v. Hades, 1 Str. 425 ; Markham v. Middleton, 2 id. 1259 ; Brookes v. Heberd, 8 Dowl. & Ryl. 69) ; or unless there has been con- trivance by the defendant {Anonymous, 2 Salk. 647) ; or surprise on the part of the plaintiff (Hall v. Stone, 1 Str. 515) ; or unless a witness to prove the demand decline giving evidence, and the sheriff, through ignorance of his authority, refuse to adjourn the execution of the writ. Markham, v. Middleton, 2 Str. 1259. See 1 Tidd's Pr. 582 ; 1 Burr. Pr. 379. In any case a verdict for the defendant will be set aside. Jackson v. JRathione, 3 Cow. 296. Where it is sought to set aside the verdict upon alleged insuffi- ciency of testimony to support it, the motion should be accom- panied by affidavits, or a copy of the sheriff's notes, exhibiting the testimony given on the inquest. Jennings v. Asten, 5 Duer, 695. If the motion is made after the entry of judgment, the notice of motion should demand the setting aside of the judg- ment as well as the inquest ; but if made before judgment is entered, the inquest only should be mentioned in the notice. 2 Til. & Shear. Pr. 269. Section 7. Assessment at circuit. On the execution of the writ of inquiry at the circuit or trial term, the proceedings should be in all respects similar to those upon an ordinary inquest, so far as regards the impaneling of the jury and the assessment of the damages. Ellsworth v. Thompson, 13 Wend. 658, 662. As to the manner of conducting an inquest, see ante, 57. JUDGMENT BY DEFAULT. 665 Assessment by reference — Opening default. The same rules respecting evidence are applicable to an inqui- sition taken before a judge as have already been mentioned as necessary to be observed on a corresponding proceeding before a sheriff. See ante, 660, § 6, g. The judge presiding at the inquisition should certify the result of it. Ellsworth v. Thomp- son, 13 Wend. 658, 664. See "Trial" and "Inquest," ante, 53. Section 8. Assessment by reference. The proceedings upon a reference to assess damages are similar to those upon an ordinary trial by referees, as to which, see Trial by Referees, ante, 238, 253. The same rules of evidence are applicable as govern on an inqui- sition before a judge or sheriff. See last section. The referee is required to make his report of the amount due to the plaintiff, and file it with the clerk, in the same manner and with like effect as the sheriff's inquisition and return. See 2 Til. & Shear. Pr. 267. ARTICLE IX. OPENING DEFAULT. Section 1. Power of court to open. That the court has power to open a judgment obtained by default and allow a defense to be made in a case where a defendant has omitted to answer within the proper time, is undoubted. See Allen v. Ackley, 2 Code R. 21 ; S. C, 4 How. 5 ; Clark v. Lyon, 2 Hilt. 91 ; Salutat v. Downes, 1 Code R. 120; Lyndev. Verity, id. 97; Foster v. Udell, 2 id. 30 ; Ramsey v. Gould, 4 Lans. 476. And this may be done before judgment is entered (Quinn v. Case, 2 Hilt. 467 ; S. C, 9 Abb. 160) ; or even after the entry of the judgment. Sharp v. Mayor, etc., of New YorTc, 31 Barb. 578; S. C, 19 How. 193; Elsworth v. Campbell, 31 Barb. 134. See Bogardus v. Living- ston, 7 Abb. 428 ; 2 Hilt. 236. Section 2. When power will be exercised. Upon a motion to open a judgment entered against a defendant by default, the court merely looks into the defense desired to be interposed, so far as to be able to determine that it is not clearly frivolous ; and if in addition, the 'court is satisfied that the defense is set up in good faith, and the neglect of the party is satisfactorily excused, it is almost a matter of course to permit him to come in and answer. Commissioners of Excise v. Hollister, 2 Hilt. 588. He must, however, show the court, specifically in what his defense Vol. III.— 84 666 JUDGMENT BY DEFAULT. When power will be exercised. consists. Mere general allegations will not answer. Ellis v. Jones, 6 How. 296. See Hunt v. Wallis, 6 Paige, 371 ; Wells v. Cruger, 5 id. 164. And it may be stated as a rule, that some excuse must be shown for neglecting to answer in time. Cowton v. Anderson, 1 How. 145 ; GlarJc v. Lyon, 2 Hilt. 91 ; McKin- stry v. Edwards, 2 Johns. Cas. 113 ; Spencer v. Webb, 1 Caines, 118 ; Cogswell v. Vanderberg, id. 156. If the omission to answer in time was the result of accident or mistake, and without cul- pable negligence on the part of the defendant, and he has a good defense on the merits, leave will be given him to come in and defend. Commissioner of Excise of New York city v. Hollister, 2 Hilt. 588 ; Qioinn v. Case, id. 467 ; S. C, 9 Abb. 160 ; Macom- ber v. Mayor, etc., of New YorTc, 17 Abb. 37. Where a party can show that a judgment is inequitable, the court will, in certain cases, entertain a motion to set it aside. In such case the party must show that the facts relied upon were unknown to him during the pendency of the former action, or that the fraud of the other party prevented his making a defense. Hamil v. Grimm, 10 Abb. 150. See Wetmore v. Law, 34 Barb. 515 ; S. C, 22 How. 130 ; Clark v. Rowling, 3 1ST. Y. (3 Comst.) 216, 222. The following instances may serve to illustrate the manner in which the court exercises its discretion in opening a default. When the excuse was that both client and attorney had neglected to attend to the case, a default was opened, but upon stringent terms. Selover v. Forbes, 22 How. 477. And where the answer was prepared and verified but not served on account of the neg- lect of the attorney' s clerk, it was held to be a sufficient excuse to warrant the opening of the default upon terms. Clark v. Lyon, 2 Hilt. 91. See, also, Mann v. Provost, 3 Abb. 446 ; Bar- ton v. McKinley, 38 How. 283 ; Elston v. Schilling, 7 Rob. 74 ; S. C, 6 id. 544 ; S. C. affirmed, 42 N. Y. (3 Hand) 79. It was formerly a well- settled rule that the court would never open a default to enable a defendant to set up an unconscientious or dishonest defense. King v. Merchants' Exchange Co., 2 Sandf. 693 : Morris v. Slatery, 6 Abb. 74 ; Bard v. Fort, 3 Barb. Ch. 632 ; Parker v. Grant, 1 Johns. Oh. 630. ' But the tendency of the later decisions is to relax this rule, and place all legal de- ' fenses, including those styled unconscionable, such as the statute of limitations, usury, etc., upon an equal footing in this respect. See Sheldon v. Adams, 41 Barb. 54 ; S. C, 18 Abb. 405 ; 27 How. JUDGMENT BY DEFAULT. 667 When power will be exercised. 179 ; Union National Bank of Troy v. Bassett, 3 Abb. N. S. 359. And in an action on a note, a default for want of an answer was set aside, and the defendant allowed to plead that the note was given for money won at play, and this even against a bona fide holder. Bank of KinderJiook v. Gifford, 40 Barb. 659. So after a default, a defendant may interpose the defense of a former adjudication. Audubon v. Excelsior Fire Ins. Co., 10 Abb. 64. But a default will not be opened merely for the purpose of enabling a defendant to prove matter in mitigation of damages, as that can be done before the sheriff's jury. Hays v. Berry- man, 6 Bos. 679. Nor will a judgment be opened merely to give a party a nominal advantage which can be of no material benefit to him. Be Peyster v. Hildreth, 2 Barb. Ch. 109. And a judg- ment should not be opened to the prejudice of the plaintiff, merely that the defendant may interpose a counter-claim where there is no doubt shown as to the plaintiff's responsibility. Laliey v. Eingon, 13 Abb. 192 ; S. C, 22 How. 209. Diligence. is required on the part of the defendant who moves to be let in to defend on the merits after a default ; hence, unreasonable delay is a strong objection to granting the motion. Bliss v. Treadway, 1 How. 245. And especially is it so regarded where the rights of the plaintiff against third persons have in the mean time become impaired. JV. T. Life Ins. and Trust Co. v. Smith, 2 Barb. Ch. 82. The Code provides that in an action (except for divorce) a defendant or his representatives against whom judgment has been taken upon a summons served by publication may, upon good cause shown, be allowed to defend the action after judg- ment, at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just ; and if such defense is successful, and the judgment has been enforced, in whole or in part, such restitution may thereupon be compelled, as the court may direct, but the title to property sold under suchgudgment to a purchaser in good faith cannot be affected. Code, § 135. It should, however, be remembered that these provisions of the Code place no restrictions on the right or duty of the court to open a judgment taken upon a service void for want of juris- diction. Judgment so taken must be opened at anytime {Titus v. Belyea, 16 How. 371 ; S. C, 8 Abb. 177), even in an action for divorce where the prevailing party has married again. Wortman 668 JUDGMENT BY DEFAULT, Application, where and when made — Affidavits. v. Worlman, 17 Abb. 66. See Phelps v. Baker, 60 Barb. 107 ; S. C, 41 How. 237. Section 3. Application, where made. The motion to open a default can be made before any judge or judges holding a term other than that at which the judgment was taken. Bolles v. Buff, 56 Barb. 567. See Ramsay v. Erie Railway Co., 9 Abb. N. S. 242. And in New York city the motion may be made before a justice out of court. Code, § 401 ; Lowber v. Mayor, etc., of N. Y.,5 Abb. 325. Section 4. Application, when made. The application to open a default should be made promptly. Bogardus v. Livingston, 2 Hilt. 236; S. C, 7 Abb. 428. And if there is delay, a satis- factory excuse should be furnished therefor. lb. The Code gives discretionary power to the court, at any time within one year after notice of a judgment, and upon such terms as may be just, to relieve a party from it when it has been taken against him through his mistake, inadvertence, surprise or ex- cusable neglect. § 174 ; Macomber v. Mayor, etc., of JY. T., 17 Abb. 35. But when the neglect is liable to work injustice to the plaintiff relief will not be granted. Graham v. Pinckney, 7 Rob. 147. Where the parties reside within the jurisdiction of the court, and more than two years have elapsed since the entry of judg- ment and service of notice thereof upon the defendant, applica- tion to open the default will be refused. Hendricks v. Car- penter, 2 Rob. 625 ; S. C, 1 Abb. N". S. 213 ; S. C. affirmed, 4 Rob. 665 ; Bliss v. Treadway, 1 How. 245. Section 5. Affidavits. On a motion to set aside a default, in actions for ordinary relief, a general affidavit of merits, made by the defendant and served with the notice of motion, is all that is required {Dix v. Palmer, 5 How. 233 ; S. C, 3 Code R. 214 ; Van Home v. Montgomery, 5 How. 238 ; Robinson v. Sinclair, 1 id. 106 ; Alberti v. Peck, id. 230 ; Stewart v. McMartin, 2 id. 38 ; Bogardus v. Doty, id. 75), unless there are suspicious cir- cumstances attending the case, in which event the affidavit must be special. Dix v. Palmer, 5 How. 233; S. C, 3 Code R. 214 ; Ellis v. Jones, 6 How. 296 ; Van Home v. Montgomery, 5 id. 238. See Moulton v. de ma Carly, 6 Rob. 470. An affidavit of merits being inappropriate in many cases, in actions for special relief, the proposed answer or its substance should be submitted to the court with the motion papers {Hunt JUDGMENT BY DEFAULT. 669 The order— Judgment as security — Costa on motion. v. Wattis, 6 Paige, 371 ; Winship v. Jewett, 1 Barb. Ch. 173), unless the defendant is absent from the State, in which case secu- rity for the payment of the plaintiff's costs, in the event of the defense turning out to be groundless, may be required. Wells v. Cruger, 5 Paige, 164. The fact that the defendant makes no affidavit of merits, on the motion to open a default, is not a conclusive answer to the application. It is a defect which may be supplied upon terms. Fassett v. Tallmadge, 15 Abb. 206. \ Affidavits in opposition to an affidavit of merits are not, in general, received on a motion to open a default. Hartford v. McNair, 2 Wend. 286. See Catlin v. Billings, 4 Abb. 248 ; S. C, 13 How. 511. But if the court is fully satisfied that it is impossible for the defendant to prove the circumstances relied upon in his defense, that may be taken into view in disposing of the application. lb. See Ferussac v. Thorn, 1 Barb. 42. Section 6. The order. Form of order denying or granting motion. {Title of cause.) {At a special term, etc.) On reading and filing the affidavit of A. B. (and on the plead- ings herein), and on motion of C. D., for the (defendant), and after hearing E. P.* for the (plaintiff), {or, on proof of due ser- vice of notice of this motion, no one appearing) in opposition : Ordered : That the said motion be denied, with dollars costs. {Or, be granted, and the said judgment [give description of Judgment] is hereby set aside, and the default [or, inquest] opened [as to ], and the defendant let in to defend the action) ; (the judgment, however, and the execution issued thereon, are to stand as security for the plaintiff's claim, to abide the event of the action). Section 7. Judgment as security. Where, on setting aside a default, a judgment- is suffered to stand as a security, it exists merely as a security, and does not determine any right of the parties in the action ; and there is no technical objection to tak- ing precisely such future proceedings in that action as would be regular and requisite if no security had been given, or the judg- ment by default had never been entered. Mott v. The Union Bank, 8 Bosw. 591 ; S. C. affirmed, 38 K Y. (11 Tiff.) 18 ; 35 How. 332 ; 4 Abb. N. S. 270 ; 4 Trans. App. 291. Section 8. Costs on motion. It is the usual practice, on setting aside a regular judgment, to make the order conditional, requir- 670 JUDGMENT BY DEFAULT. Form of notice of motion to set aside irregular judgment by default. ing payment of the costs incurred in entering it up. Kane v. Demarest, 13 How. 465. Where, however, a judgment is ob- tained by default through a misapprehension of the defendant's attorney, and it clearly appears that the plaintiff has no cause of action, which fact he should have known when he commenced proceedings, the judgment will be set aside, and the costs of the motion unconditionally awarded to the moving party. lb. Section 9. Appeal. An order granting or denying the motion to open a default is not, in. general, reviewable on appeal. It is a matter resting in the sound discretion of the court, and it does not affect a substantial right. Millard v. Van Mansl, 17 Abb. 319 (n) ; ChurcMll v. Mallison, 2 Hilt. 70 ; Ramsey v. Gould, 4 Lans. 476. When made, however, in the palpable abuse of dis- cretion, such an order may be reviewed on appeal. lb. Form of notice of motion to set aside regular judgment by default. {Title of cause.) {At a special term, etc.) Please take notice, that on affidavits, copies of which are annexed (and copy of defendant' s proposed answer herein also annexed), the undersigned will move the court at a special term to be held at , on the day of ,18 , at o' clock in the noon, or as soon thereafter as counsel can be heard {or, will move before Mr. Justice , at his office in the city of , on the day of , 18 , at o' clock in the noon), * that the judgment entered by default against the defendant in this action, and all subsequent proceedings therein, be set aside, f upon such terms as to the court may seem just (and that the moneys levied thereon be restored to the defendant), with such other relief as may be just. {Date.) {Signature.) {Address.) Notice of motion to set aside irregular judgment by default. {Same as preceding form to the f, and continue :) with costs, upon the ground, among others, of irregularity {specify each one relied on, e. g. thus) : in that the judgment was entered by plain- tiff in disobedience of a stay of proceedings, duly ordered and served on him, with such other relief as may be.just. When the motion is for irregularity, the notice or order must specify the irregularity complained of. Sup. Ct. Kule 46. JUDGMENT BY DEFAULT. 671 Notice of motion to set aside inquest. Notice of motion to set aside inquest. (Substitute for the words between the * and the f in the form preceding the last:) that the inquest taken in this action, and all proceedings on the part of the plaintiff subsequent thereto, be set aside (and continue as in that form). Order to show cause, obtained by a person not a party, but defrauded by the judgment. (Title of cause.) On the annexed affidavits, let all further proceedings be stayed under the execution issued on the judgment of D. F. against R. S., until the further order of this court ; and on the annexed affidavits, and such as (the moving party) may serve upon D. F., the plaintiff, or his attorney, within days after the making of this order, let the said plaintiff show cause before this court, at a special term thereof, to be held in the said city of , on the day of next, at the opening of the court on that day, why the said judgment and execution issued thereon should not be set aside, as against the said (moving party), as fraudu- lent and void (and on the ground, among others, of irregularity in that specifying the irregularity relied on) ; and why said (moving party) should not have such other and further relief as may be just, and the costs of the motion. (Bate.) (Signature of judge.) Order to show cause why judgment and order of reference should not be set aside and defendant let in. (Title of cause.) On the pleadings in this cause, the order to refer and the papers on which the motion to refer was founded, on the judgment roll filed therein, and the report and finding of the referee, and on the affidavits and papers hereunto annexed (and on such other affidavits and papers as may be served upon the plaintiff's attor- neys within two days prior to the time of hearing herein men- tioned), let the plaintiff and his said attorneys show cause before one of the justices of this court, at chambers, on, etc., , why the judgment entered in this action should not be set aside and vacated ; why the order of reference therein should not be set aside ; why the defendants therein should not be permitted to file a further or annexed answer to the complaint in this action, and why the issues joined in the said action should not be tried by a iury or for such other or further order as the said court may deem meet. And in the mean time, and until the hearing and determination of the motion under this order, let all proceed- ings upon the execution issued upon the said judgment be stayed. (Date.) (Signature of judge) CHAPTER V. JUDGMENT OK OFFER. AKTICLE I. NATURE Or PROCEEDING. Section 1. In general. Under the former system of practice, a party who had commenced an action was not compelled to receive a cognovit, but could proceed and take judgment by default. But the Code has introduced a broader remedy which is a substitute for the cognovit under the old practice. Hoss v. Bridge, 15 Abb. 150 ; S. C, 24 How. 163. By this remedy the defendant is permitted to make an offer that judgment be taken against him to the effect specified in such offer, with costs, and the plaintiff is bound to accept it and enter judgment in accord- ance with the offer, or reject it at the risk of losing costs if he fails to obtain a more favorable judgment than that offered. Code, § 385. This proceeding is intended to enable parties to compromise actions to which there is no defense, or only a partial defense, by agreeing upon the amount of damages, and thus effect a sav- ing of costs. It was the intention of the law-framers to have this provision apply to those cases where the defendant concedes the cause of action to an amount less than that claimed, or is willing to concede something rather than litigate. But in actual practice the provision has been turned from its proper purpose and made to supply the place of a confession of judgment without action, so as to dispense with the necessity of the oath of the party that the transaction is in good faith. The courts decline to say that such a practice must not be tolerated, but it is evidently contrary to the good intent of the law-framers and subversive of the protec- tion which they have endeavored to give to creditors against scheming debtors, and should, on this account if on no other, be discouraged. See Brideribecker v. Mason, 16 How. 203. JUDGMENT ON OFFER. 673 In what cases and at what stage allowed — Offer, by whom made. ARTICLE II. IN" WHAT CASES AND AT WHAT STAGE ALLOWED. Section 1. In what cases. The offer provided for by section 385 of the Code is not confined to actions upon contracts, or to actions against a sole defendant. Bridenbecker v. Mason, 16 How. 203. It may be made in actions for either legal or equita- ble relief, whether there be one or several defendants. Pomeroy v. Hulin, 7 How. 161. See, also, Marble v. Lewis, 53 Barb. 432 ; S. C, 36 How. 337. Section 2. At what stage. The offer may be made at any time before trial or verdict. Code, § 385. But if defendant desires to avail himself of the provision, he should make the offer at least ten days before trial ; for if the cause is reached and tried before the expiration of the ten days within which the plaintiff may accept the offer, the rights of the parties are, in all respects, the same as if no offer had been made. Pomeroy v. Hulin, 7 How. 161. The offer amounts to a stay of proceedings on the part of the defendant for the term of ten days, or until the plaintiff makes his election ; hence, the defendant cannot proceed and obtain a judgment by default if the cause is reached on the calendar within that time. Walker v. Johnson, 8 How. 240. The offer may be made before the service of the complaint (Kilts v. Seeber, 10 How. 270) and the amendment of the com- plaint enlarging the plaintiff's demand, although it calls for a new answer of additional matter, will not deprive the defendant of the benefit of his offer, in case the plaintiff fails to recover a more favorable judgment than that offered. lb. See Tompkins v. Ives, 30 How. 13 ; S. C. affirmed, 36 N. Y. (9 Tiff.) 75 ; 1 Trans. App. 266 ; 3 Abb. N. S. 267. ARTICLE III. OEEEK, BY WHOM MADE. Section 1. By defendant. a In general. The offer of judgment is to be made by the defendant. Code, § 385. An offer signed by the attorney for Vol. Ill — 85 674 JUDGMENT ON OFFER. Offer in case of joint debtors. the defendant, is equivalent to one signed by himself. Sterne v. Bentley, 3 How. 331 ; S. C, 1 Code R. 109. The rule is that, where the defendant appears by attorney, the offer should be made and subscribed by the latter ; but if, in such a case, the offer is made by the defendant in person, leave of the court should be obtained to enter judgment upon it. Webb v. Dill, 18 Abb. 264. b. In case of joint debtors. Where joint debtors are defend- ants there are several classes of cases which arise, and which we will notice separately : First. Where an attorney of the court appears regularly for the defendants, an offer made by him will be valid, unless fraud or collusion between him and the plaintiff is shown, or unless it appears that the defendant's attorney is irresponsible, in which case the court will relieve against the judgment. Blodget v. Oonklin, 9 How. 442 ; Ever son v. Qehrman, 10 id. 301 ; S. C, 1 Abb. 167 ; Bridenbecker v. Mason, 16 How. 203 ; Gris- wold v. Griswold, 14 id. 446 ; OrazebrooTc v. M' Creedie, 9 Wend. 437 ; Binney v. Le Gal, 19 Barb. 592 ; S. C, 1 Abb. 283. If the attorney has not been authorized to appear for all the parties against whom judgment has been entered, the court will permit the defendant aggrieved to plead if he has a defense, the judg- ment in the meantime standing as security. Blodget v. Conklin, 9 How. 442 ; Ever son v. Gehrman, 10 id. 301 ; S. C, 1 Abb. 167 ; Sterne v. Bentley, 3 How. 331 ; S. O, 1 Code R. 109 ; Grazebrook v. M Creedie, 9 Wend. 437. See LaTiey v. Eingon, 13 Abb. 192 ; S. C, 22 How. 209. Second. Where all the defendants are served with process, the offer must be signed by all whose time to answer has not expired, or by an attorney who appears for all the defendants. Bridenbecker v. Mason, 16 How. 203 ; La Forge v. Ghilson, 3 Sandf. 752; S. C, 1 Code R. N. S. 159; Binney v. Le Gal, 1 Abb. 283 ; S. 0, 19 Barb. 592. Thus one partner cannot offer judgment on behalf of his co-defendant, where both have been served with process; and a judgment entered on such an offer will be set aside as against such co-defendant. Bri- denbecker v. Mason, 16 How. 203 ; Binney v. Le Gal, 1 Abb. 283 ; S. C, 19 Barb. 592. Where some of the defendants aliow their time for answering to expire, the others may make the offer. La Forge v. GMlson, 3 Sandf. 752; S. C, 1 Code R. N. S. 159. JUDGMENT ON OFFER. 675 Offer, how made — Requisites of. Third. Where only one of several joint debtors has been served with process, he may make an offer of judgment which, when entered, will bind the joint property of the defendants not served, and the individual property of the one who made the offer {Bri- denbecJcer v. Mason, 16 How. 203 ; Emery v. Emery, 9 id. 130 ; Lippman v. Joelson, 1 Code R. N. S. 161, note; Orwell v. McLaughlin, 10 N. Y. Leg. Obs. 316), but if such an offer is made by collusion between the plaintiff and the defendant served, the judgment will be set aside. Ever son v. Gehrman, 1 Abb. 167 ; S. O, 10 How. 301. ARTICLE IV. OFFER, HOW MADE. Section 1. Must be in writing. a. In general. The offer must be in writing (Code, § 385 ; Bridenbecker v. Mason, 16 How. 203), and must specify the judgment which the defendant will allow, with costs. lb. b. Requisites of offer. The offer should be so distinctly and openly made that there can be no doubt or misunderstanding about it {Post v. New York Central Railroad Company, 12 How. 552), and should be such a practical one that the plaintiff may avail himself of it at once and absolutely without seeking the aid or permission of the court, and without prejudicing his rights as to other parties ; thus an offer is insufficient if it involves the necessity of severing the action {Griffiths v. Be Forest, 16 Abb. 292 ; S. C, 25 How. 336 ; Marble v. Lewis, 53 Barb. 432 ; S. C, 36 How. 337), or if it is conditional, as where it provides that upon certain proof being made the clerk may enter judgment. Pinkney v. Childs, 7 Bosw. 660 ; S. C, 15 Abb. 137, note. But it is not absolutely necessary that the offer should specify the sum for which judgment may be taken. If it intelligibly refer to the pleadings, so that the clerk, by a simple computation, can ascertain the amount of the judgment, it is sufficient ; as where it offers judgment for the amount claimed on the first cause of action set forth in the complaint, or where it offers judgment for the amount claimed in the complaint less the amount of two notes set forth in the answer. Burnett v. Westfall, 15 How. 420 ; S. C. affirmed, on appeal, id. 425, note. In case the offer is made before answer, if the defendant in- 676 JUDGMENT ON OFFER. The signing of the offer. tends to set up a counter-claim in his answer, he should so refer to it in his offer, that it will be extinguished upon the acceptance of the offer ; for if the defendant omits to embrace a discharge of his set-off in the offer, and the plaintiff recovers a judgment which, including the extinguished counter-claim, is larger than that offered by the defendant, the latter cannot claim the benefit of his offer. TompJcins v. Ives, 36 N. Y. (9 Tiff.) 75; S. O, 1 Trans. App. 266 ; 3 Abb. N. S. 267 ; affirming S. C, 30 How. 13 ; Buggies v. Fogg, 7 id. 324. The better practice would be to renew the offer after answer if a counter-claim is set up, as the import and effect of the offer is determined by the state of the pleading at the time the offer is made. See TompJcins v. Ives, 36 N. Y. (9 Tiff.) 75 ; S. O, 1 Trans. App. 266 ; 3 Abb. N. S. 267 ; affirming S. C, 30 How. 13. A judgment entered on an offer which allows judgment for the whole of the plaintiff's claim is valid, although the court has power to set aside such a judgment where it appears that the proceeding was taken by collusion, and is in fraud of the rights of creditors under the provisions of sections 382 and 383 of the Code. Ross v. Bridge, 15 Abb. 150; S. O, 24 How. 163. See chap. 1 of this Title. The offer must expressly state that the judgment may be taken with costs, or it will be a nullity. Ranney v. Russel, 3 Duer, 689. See Johnson v. Sagar, 10 How. 552. c. The signing. The offer must be signed by the defendant or his attorney, or by an agent specially authorized to sign it in his name. BridenbecJcer v. Mason, 16 How. 203. If the defendants are joint debtors, it must be signed by or in behalf of all the defendants served with process whose time for answering has not expired. lb. ; Griffiths v. Be Forest, 16 Abb. 292; S. C, 25 How. 336; Brusle v. Gilmer, 16 Abb. 292, note; La Forge v. Chilson, 3 Sandf. 752 ; S. C, 1 Code R. N. S. 159. If only one defendant has been served with process, he may make the offer, and the judgment entered therein will bind the joint property of all. . Paton v. Wright, 15 How. 481. The implied agency resulting from the relation of the parties, where the defendants are partners, does not extend to offering judgment, under section 385 of the Code, if both defendants have been served with process. Binney v. Le Gal, 1 Abb. 283 ; S. C, 19 Barb. 592 ; BridenbecJcer v. Mason, 16 How. 203. JUDGMENT ON OFFER. 677 Proceedings subsequent to offer. d. Service. The offer must be served upon the plaintiff's attorney. Code, § 385. Form of offer to allow judgment. {Title of cause.) The defendant {naming Mm, if one of several) offers to allow judgment to be taken against him {or, against the defendants herein) by the plaintiff, for {specify the sum, property, or spe- cific relief intended), with costs. {Date.) {Signature of defendant or his attorney.) {Address to plaintiff's attorney.) ARTICLE V. PROCEEDINGS SUBSEQUENT TO OEFEE. Section 1. Plaintiff's proceedings. a. Not stayed. The plaintiff may proceed, in all respects, as if no offer had been made. Pomeroy v. Hulin, 7 How. 161. If a trial is had before the expiration of the ten days in which the plaintiff may accept the offer, the rights of the parties are in all respects the same as if no offer had been made. lb. o. Amendment oy plaintiff. Any amendment which the plaintiff may make will not deprive the defendant of the benefit of his offer made previous to such amendment. Kilts v. Seeber, 10 How. 270. c. Acceptance. The plaintiff has, in all cases, ten days in which to accept the offer. Pomeroy v. Hulin, 7 How. 161. If he accepts it he must serve a notice to that effect upon the defendant's attorney, within ten days. Code, § 385. Notice of acceptance of offer. {Title of cause.) Take notice, that the plaintiff accepts the offer of the defend- ant, allowing him to take judgment in this action (for dol- lars), with costs. (Date.) {Signature.) {Address.) Notice of an election on the part of the plaintiff to accept the offer cannot be made by parol so as to deprive him of the benefit of the ten days. Walker v. Johnson, 8 How. 240. d. Entering judgment. Upon serving such notice of accept- ance, the plaintiff may file the summons, complaint and offer, 678 JUDGMENT ON OPFEE. Affidavit of service of notice of acceptance. with, an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly (Code, § 385) ; that is, according to the offer. Burnett v. West/all, 15 How. 420. The judgment may be entered without the direction of a judge of the court {Hill v. Northrop, 9 How. 525), and an offer which would compel an application to the court before judgment could be entered is not regular, and may be disregarded. Griffiths v. De Forest, 16 Abb. 292 ; S. C, 25 How. 336. In making up the judgment roll a copy of the notice of accept- ance should be inserted with an affidavit of service. Affidavit of service of notice of acceptance. COUBT. A. B., plaintiff, agt. C. D., defendant. COTJNTY OF , SS.: G. H., being duly sworn, says, that he is the attorney for the plaintiff in this action ; that on the day of , 187 , and before any trial or verdict herein, the defendant in said ac- tion appeared by E. F.,his attorney, and served upon said attor- ney for the plaintiff the foregoing offer, in writing, signed by said defendant's attorney, to allow judgment to be taken against the defendant in this action for the sum of dollars and cents with costs. Deponent further says, that on the day of , 187 , and within ten days after the service of said offer as aforesaid, the plaintiff accepted the same, and served a notice thereof, in writing, upon said defendant' s attorney, and that the foregoing paper, entitled Copy Notice of Acceptance, is a true copy of the notice so served. Deponent further says that the items of expense and disburse- ments embraced in the annexed bill of costs have been, or will be, necessarily incurred by the plaintiff in this action, according to deponent' s knowledge or belief. Subscribed and sworn before me, this ) Gr. H. day of , 187 . j Judgment on offer and acceptance. aqt mt ' I Judgment the dap of 187 C. D., defendant. agt at' h. to." " M. The summons, with a copy of the complaint in this action, having been duly served on the above-named defendant, and the JUDGMENT ON OFFER. 679 Rejection of offer — What is a more favorable judgment. said defendant having appeared in said action by E. F., his attor- ney, and served on the plaintiff an offer, in writing, to allow judgment to be taken against him herein for the snm of dollars and cents, and the plaintiff having accepted said offer and served a notice thereof in writing upon the defendant : now, on filing the said summons complaint and offer, and notice of acceptance, together with an affidavit of such notice of accept- ance, on motion of Gr. H., plaintiff's attorney, it is hereby ad- judged and determined by the court that the plaintiff recover of the defendant the sum of dollars and cents, with dollars and cents costs and disbursements, amounting in the whole to $ , and have execution therefor. M. W., Cleric. e. Rejection of offer. If the notice of acceptance is not served within ten days after the offer is made, the offer is deemed to be withdrawn, and cannot be given in evidence. Code, § 385. /. Effect of non-acceptance. If the plaintiff fails to obtain a more favorable judgment than that offered by the defendant he cannot recover costs, but must pay the defendant's costs from the time of the offer. Code, § 385. And where, in an action for debt, the plaintiff accepts an offer to enter judgment for less than $50, the defendant is entitled to costs. Johnson v. Sagar, 10 How. 552. g. What is a more favorable judgment. A judgment against all the defendants who are joint debtors is more favorable than a judgment for the same amount against a part only of such defend- ants. Griffiths v. Deforest, 16 Abb. 292 ; S. C, 25 How. 336. In case of a money demand, if the verdict is made up of principal and the interest which has accrued thereon, in order to ascertain which is most favorable to the plaintiff, the interest which has accrued intermediate the time of the offer and the rendition of the judgment is to be rejected therefrom. The test is the sum due for principal and interest at the time of the offer, and not that sum increased by the interest accruing from the date of the offer to the date of the verdict. Budd v. Jackson, 26 How. 398 ; Schnei- \ der v. JacoM, 1 Duer, 694 ; S. C, 11 N. Y. Leg. Obs. 220. Add- ing interest to the amount of the offer from its date to the date of the verdict will decide the question on the same principle. Buggies v. Fogg, 7 How. 324. If the offer is served after an answer which sets up a counter- claim, the acceptance of the offer would extinguish all the claims 680 JUDGMENT ON OFFER. Costs before offer — Entry of judgment — Defendant's proceedings. set up in the answer ; so that if the plaintiff pursues the litiga- tion he cannot recover costs unless his actual recovery exceeds the amount of the offer {Schneider v. JacoM, 1 Duer, 694 ; S. C, 11 N. Y. Leg. Obs. 220) ; and acceptance of the offer has the same effect upon counter-claims if the offer is served with the answer. Kilts v. Seeber, 10 How. 270. But where the answer is Served after the offer, and such answer sets up a counter-claim which is extinguished by the ver- dict, the amount of the plaintiff' s actual recovery must be added to the amount of the extinguished claim, and if together they exceed the amount of the defendant's offer, the plaintiff has a more favorable judgment. Buggies v. Fogg, 7 How. 324; Field- ing s v. Mills, 2 Bosw. 489 ; Tompkins v. Ives, 36 N. Y. (9 Tiff.) 75 ; S. C, 3 Abb. N. S. 269 ; 1 Trans App. 266 ; affirming S. C, 30 How. 13. h. Costs before offer. The plaintiff will be allowed costs up to the time of the offer. Burnett v. Westfall, 15 How. 430 ; Keese v. Wyman, 8 id. 88. Such costs should always be allowed to the plaintiff. Banney v. Bussell, 3 Duer, 689. See John- son v. Sagar, 10 How. 552. i. Entry of judgment. Where the plaintiff has a recovery, but the defendant is entitled to costs, the costs should be set off against the recovery and but one judgment entered for the excess, to whichever party it belongs. Johnson v. Farrell, 10 Abb. 384. See " Setting off Costs." Section 2. Defendant's proceedings. a. Stayed. The service of the offer amounts to a stipulation, on the part of the defendant, that he will not take any steps in the action contrary to the terms of the offer for the term of ten days. The plaintiff is absolutely entitled to a judgment accord- ing to the offer at any time within ten days. Hence, if the defendant proceeds at the circuit within that time, and obtains an order dismissing the complaint, such order will be set aside, upon motion. Walker v. Johnson, 8 How. 240. b. Fxtra allowance. According to the construction of section 309 of the Code by Willaed, J., if the plaintiff has a recovery, although it is less than the amount of the offer, the defendant cannot have an extra allowance of costs in any case. Jf' Lees v. Avery, 4 How. 441 ; S. C, 3 Code R. 104. See Burnett v. West- fall, 15 How. 430. JUDGMENT ON OFFER. 681 Offer to compromise by plaintiff. ARTICLE VI. OFFER TO COMPROMISE BY PLAIKTIEF. Section 1. When to be made. In any action where the defend- ant sets up in his answer a counter-claim greater than the plain- tiff's claim, or sufficient to reduce the plaintiff's claim below $50, then the plaintiff may serve upon the defendant an offer in writing to allow judgment to be taken against him for the amount specified, or to allow the counter-claim to the amount specified, with costs. Code, § 385. Section 2. Acceptance and judgment. If the defendant accepts the offer, he must do so within ten days, by serving a notice to that effect upon the plaintiff's attorney. Code, § 385. If he accepts the offer he may have judgment entered by filing the summons and complaint, the answer, offer, and affidavit of notice of acceptance with the clerk, if the offer entitles him to judgment. Or if the offer is an allowance of a portion of his claim he is entitled, upon acceptance, to have so much of it as is specified in the offer allowed to him upon the trial. Code, § 385. Section 3. Non-acceptance and its effect. If the defendant does not serve a notice of acceptance within ten days, the offer is deemed to be withdrawn and cannot be given in evidence. Code, § 385. If the defendant fails to recover a more favorable judgment than that offered, or if he fails to establish his counter-claim to an amount greater than that specified in the plaintiff's offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer. Code, § 385. - Section 4. Practice under this provision. The rules of practice laid down in this title which control upon an offer of judgment by the defendant are equally applicable to the offer by the plain- tiff — the relation of the parties being changed, the plaintiff practically becoming defendant and the defendant becoming plaintiff. The general principles governing the practice are the same under each provision. Vol. Ill — 86 CHAPTER VI. JUDGMENT BY CONFESSION. ARTICLE I. NATURE OF PROCEEDING. Section 1. Under former practice. It was an ancient and well- settled practice of the courts to allow judgments to be recov- ered by confession either without action or pending an action, and such judgments rested, as they still do, upon the simplest of all foundations — that of consent. Formerly, consent was sufficient without a definite and particular statement of the con- sideration of the debt, even as to other creditors and purchasers, but the practice was liable to abuses, to obviate which the legis- lature, in 1818, enacted a statute which required that, upon a con- fession of judgment without suit, the plaintiff should file with the record a particular statement of his debt, and if this was omitted the judgment was deemed fraudulent as to other judg- ment creditors and bona fide purchasers for value of lands bound by such judgment. See Laws of 1818, ch. 258, § 8. This statute was repealed prior to 1830, and the Revised Statutes required that the authority for entering the judgment should be in some instrument distinct from the bond or evidence of the debt, and should be produced to the officer signing the record, and should be filed with the record. 2 R. S. 360. Section 2. Under the Code. Such was the practice until the adoption of the Code, which provides for the entry of a judg- ment in the supreme or superior court upon confession, without action, either for a demand already accrued, or to secure a con- tingent liability ; and in order to close the door against fraud, it is further provided that a verified statement in writing must be made authorizing the entry of judgment for a specified sum ; if it be for an amount due or to become due, it must state concisely the facts out of which it arose, and must show that it is justly due or to become due ; if it is to secure against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed such liability. Code, §§ 382, 383. The object of the provision JUDGMENT BY CONFESSION. 683 In what cases. being to afford all the benefits of an action to the intended plain- tiff without the corresponding expense to the defendant, and at the same time to permit fraudulent or pretended judgments, the authority to enter judgment must be clear and explicit, and all the facts which constitute the legal obligation should be placed upon the record. The Manufacturers and Mechanics' Bank of Philadelphia v. St. John, 5 Hill, 497 ; Purdyv. Upton, 10 How. 494. See Mosher v. Heydrick, 45 Barb. 549 ; S. C, 30 How. 161 ; 1 Abb. N. S. 258. It will be remembered that a confession of judgment may be taken in a court of a justice of the peace to an amount not exceeding $500, but such confession must be in accordance with the provisions of article 8, title 4, chapter 2 of part 3 of the Revised Statutes. Code, § 53, subd. 8. See 2 Wait's Law & Prac. 702. ARTICLE II. IN WHAT CASES. Section 1. Must be a debt due, or to become due, or a contin- gent liability. The case provides that a judgment by confession may be entered without action, either : 1. For money due ; 2. For money to become due ; 3. To secure any person against a contingent liability on behalf of the defendant ; or, 4. For lia- bility already accrued, and to secure against a contingent liability. Code, §382. Under these provisions there must be either a debt due, or to become due, or a contingent liability / and a confession of judg- ment cannot be made under section 382 of the Code for damages occasioned by a tort. BurTiham v. Van Saun, 14 Abb. N. S. 163 ; Boutel v. Owens, 2 Sandf. 655 ; S. C, 2 Code R. 40. It would seem that these provisions do not admit of a con- fession of judgment in an action already commenced. Boutel v. Owens, 2 Sandf. 655 ; S. C, 2 Code R. 40. Probably this is true, the proper proceeding in such a case being under section 385 of the Code. It is, however, beyond doubt that if the defendant is in custody, a judgment entered upon his confession without the presence and advice of an attorney would be void. Although the courts of this State have never adopted, in terms or rule to that effect, yet they follow, in this respect, the strict practice of the English 684 JUDGMENT BY CONFESSION". In what cases — By whom confessed. courts. Boutel v. Owens, 2 Sandf. 655; S. C, 2 Code R. 40; Wilder v. Baumstauk, 3 How. 81. A judgment may be confessed to secure a contingent liability to the extent of such judgment ; but if advances are subsequently made or liabilities are subsequently incurred to the amount of the judgment, such judgment cannot be available as a security for other advances or liabilities, although in the end, by pay- ments made to or funds received by the creditor, the liabilities incurred from time to time should be satisfied so that the balance does not exceed the sum specified in the security. It cannot be regarded as a continuing security, covering the final balance. In other words, when a judgment is confessed to secure future lia- bilities, and such liabilities are incurred by the debtor to the amount of the judgment and paid, the judgment cannot stand as a continuing security for further advances or for the final balance of a current account between the parties. Truscott v. King, 6 N. Y. (2 Seld.) 147. The reading of the 382d section is: "to secure any person against a contingent liability," etc. The person to be secured is the plaintiff in the judgment ; thus a confession is not good which is given to A, as trustee for B, to secure the latter against contingent liabilities assumed by him. Marks v. Reynolds, 12 Abb. 403. AKTICLE III. BY WHOM CONFESSED. Section 1. Partners. Under the existing provisions a judgment by confession, without action, can only be entered against the person who signs the confession ; and hence, one of two partners or joint debtors cannot confess a judgment for both. Stouten- burgh v. Vandenburgh, 7 How. 229. See Ever son v. OeTirman, 10 How. 301 ; S. C, 1 Abb. 167 ; Graser v. Stellwagen, 25 N. Y. (11 Smith) 315. A judgment confessed by one partner would be valid against him, but does not bind the partnership property except to the extent of the interest of the party signing the con- fession. Sloutenburgh v. Vandenburgh, 7 How. 229. Section 2. Married women. At common law a judgment entered upon the confession of a married woman was undoubt- edly void. ' Watkins v. Abrahams, 24 K Y. (10 Smith) 72 ; affirming S. C, 14 How 191. In Ror aback v. Stebbins the court JUDGMENT BY CONFESSION. 685 Public officer — Lunatic — To whom given. of last resort decided that such a judgment was not void, but voidable only, and that it might be impeached by existing judg- ment creditors at the time of the levy and sale thereunder. See Bor aback v. Stebbins, 3 Keyes, 62; S. 0., 33 How. 281. But those cases arose and were decided upon judgments which were confessed previous to the statutes of 1860 and 1862 which author- ize married women to sue and to be sued in courts of law, and authorize also in such cases personal judgments to be entered against them for damages and costs. Laws of 1860, ch. 90 ; Laws of 1862, ch. 172. It seems to necessarily follow from the construction which the courts have placed upon these statutes, and the evident intent of the legislature, that a married woman may, in respect to her sepa- rate property, confess a judgment which will be valid and bind- ing. First National Bank of Canandaigua v. GarlingTiouse, 36 How. 369 ; S. C, 53 Barb. 615. Section 3. Public officer. A public officer who is liable to be sued for services rendered for the public at his request, may con- fess a judgment for the amount. Gere v. Supervisors of Cayuga, 7 How. 255. But those interested are not concluded by such a judgment, but may go behind it and inquire into the consideration. lb. Section 4. Lunatic. A judgment entered upon the confession of one who is subsequently pronounced of unsound mind, if taken in good faith is not absolutely void, but the court may order it set aside on proper terms. Person v. Warren, 14 Barb. 488. ARTICLE IV. TO WHOM GIVES'. Section 1. Construction of section 382. The language of sec- tion 382 of the Code is, that a judgment may be confessed to secure any person, etc. The person to be secured is the plain- tiff in the judgment. Thus a judgment confessed to A to secure him, and as trustee for another to secure a contingent liability assumed by the latter, is illegal as against subsequent creditors. Marks v. Reynolds, 12 Abb. 403. Section 2. Assignee. The provisions of the Code with refer- ence to the confession of judgments are intended to avoid fraud, and hence if an improper security is thus given to a creditor it 686 JUDGMENT BY CONFESSION. The statement — Its sufficiency. will be declared void. As where a judgment was confessed to a person to whom the debtor had previously made a -fraudulent assignment in trust for the benefit of creditors, and who still claimed under such assigment and sought to enforce it, the judg- ment was declared void ; and the court held that if the creditor would avail himself of the benefits of the judgment he must abandon the assignment. D' Ivernois v. Leavitt, 23 Barb. 63. ARTICLE V. THE STATEMENT. Section 1. When sufficient. a. In general. Section 383 of the Code provides that a state- ment in writing must be made, signed by the defendant and veri- fied by his oath, to the following effect : 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be for money due or to become due, it must state con- cisely the facts out of which it arose, and must show that the sum confessed therefor is justly due or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability and must show that the sum confessed therefor does not exceed the same. Code, § 383. Under the law of 1818 the statement was required to be as special and precise as a bill of particulars (see Lawless v. Hack- ett, 16 Johns. 149), but the Code does not require that minuteness, and it is sufficient that the nature and the consideration of the debt confessed, the time in which it accrued, and that it is due and unpaid is concisely stated (Gandall v. Finn,! Keyes, 217 ; S. O, 33 How. 444 ; Hopkins v. Nelson, 24 N. Y. [10 Smith] 518 ; Neus- oaum v. Keim, id. 325; Freligh v. Brink, 22 N. Y. [8 Smith] 418 ; Lanning v. Carpenber, 20 N. Y. [6 Smith] 447) ; appropriate information must, however, be fully given, and if the statement fails in this respect the judgment may be vacated as fraudulent and void on a motion made by a junior judgment creditor of defendant, or by a bona fide purchaser or mortgagee of lands on which the judgment is an apparent lien. Ghappel v. Chappel, . 12 N. Y. (2 Kern.) 215 ; Daly v. Matthews, 20 How. 267 ; S. O, JUDGMENT BY CONFESSION. 687 For goods sold — Promissory note. 12 Abb. 403 (n.) ; Norris v. Denton, 30 Barb. 117 ; Kendall v. Hodgins, 1 Bosw. 659 ; S. O, 7 Abb. 309. b. For goods sold. The statement of "facts " upon which the debt arose in the statement for a confession of judgment upon an account for goods sold is sufficient if it sets forth the nature of the goods purchased, the time within which they were bought, and that they are not paid for {Clements v. Gerow, 1 Keyes, 297 ; Gandall v. Finn, id. 217 ; S. O, 33 How. 444 ; Daly v. Matthews, 29 id. 267; S. O, 12 Abb. 403 {n.) ; Curtis v. Corbitt, 25 How. 58 ; Delaware v. Ensign, 21 Barb. 85) ; and where a schedule was referred to for the particulars of the account the statement was held sufficient, although in fact no schedule was annexed. Clements v. Gerow, 1 Keyes, 297. c. Promissory note. The statement to authorize the entry of a judgment upon a promissory note should set out the note par- ticularly as to parties, date and amount, and also the considera- tion of the note. Thus where, after setting out the note, it was added that the note was given for borrowed money, it was held sufficient (Lanning v. Carpenter, 20 N. Y. [6 Smith] 447), and a statement was held sufficient in which, after setting out a note for $700, it was added "that amount of money being had by the defendants of the plaintiff." Freligh v. Brink, 22 N. Y. (8 Smith) 418. See Acker v. Acker, 1 Keyes, 291. It is not sufficient in such a case merely to set out the note with an allegation that the amount of it is justly due (Chappel v. Chappel, 12 N. Y. [2 Kern.J 215), or with the statement that it was given upon a settlement between the debtor and the creditor. Dunham v. Waterman, 17 N. Y. (3 Smith) 9 ; S. 0, 6 Abb. 357. But where copies of notes are annexed to the statement, and their consideration is fairly set forth, it will be held sufficient ; as where it was alleged that the defendant had purchased a certain indebtedness, and had given the plaintiff four notes therefor, copies of which were annexed ; and the court said it is not necessary to set forth the considera- tion of the debt purchased, for that is mere matter of descrip- tion. Kirby v. Fitzgerald, 31 N. Y. (4 Tiff.) 417. If a note is given upon a settlement of accounts, the nature of the account should be stated. Kellogg v. Cowing, 33 N. Y. (6 Tiff.) 408. See Dunham v. Waterman, 17 N. Y. (3 Smith) 9 ; S. O, 6 Abb. 357. It will be the best course in all cases to give such a particular statement of the consideration that parties interested may see 688 JUDGMENT BY CONFESSION". Money lent — To secure a contingent liability — The signature. from the statement itself that it is genuine and free from fraud. Moody v. Townsend, 3 Abb. 375. d. Money lent. In confessing judgment for money lent, there should be a statement of the amount and the time when it was advanced, and whether on one or several occasions. Frost v. Koon, 30 N. Y. (3 Tiff.) 428 ; Stebbins v. The Hast Society of the Methodist Episcopal Church of Rochester, 12 How. 410 ; Daly v. Matthews, 12 Abb. 403(w) ; S. C, 20 How. 267. A statement of "facts," in such a case, was held sufficient, which was as follows : "For money lent by said plaintiff to me on the first day of April, 1856, and interest thereon from the first day of April, 1857." Clements v. Gerow, 1 Keyes, 297. e. To secure a contingent liability. Section 383 of the Code requires that there must be a concise statement of facts consti- tuting the liability, and must show that the sum confessed there- for does not exceed the same. Most of the cases which arise under this clause of section 383 are those where parties have made themselves contingently liable as indorsers, etc., of notes ; and, in such cases, it is not necessary to set out the particulars of each note upon which the party may become liable, but a statement was held sufficient as to the facts constituting the lia- bility, etc., that "the plaintiff has this day indorsed my notes, payable at bank, for $6,000 in all, for my accommodation, and to enable me to negotiate said notes," without any other descrip- tion of the notes. Hopkins v. Nelson, 24 N. Y. (10 Smith) 518. The object of the statement is, in such a case, as declared by the commissioners of the Code in their report, that the record may state the truth, and show that the judgment is but security and its binding effect contingent, "so that its (the judgment's) purpose or intent cannot be denied or concealed." lb. The statement should describe the nature of the liability, whether it is as "surety" or "indorser," etc. {Bow v. Plainer, 16 N. Y. [2 Smith] 562 ; HopMns v. Nelson, 24 N. Y. [10 Smith] 518), and should show, clearly, how or why the plaintiff may become liable. Winnebrenner v. Edgerton, 30 Barb; 185 ; S. C, 8 Abb. 419 ; 17 How. 363. It is better, in any case, to have the statement contain more than is strictly necessary, rather than in endeavoring to be " con- cise," to give opportunity for questioning the judgment. Section 2. The signature. The Code requires that the state- ment in writing must be signed by the defendant. Code, § 383. JUDGMENT BY CONFESSION. 689 Verification — Amendment of statement. The statement itself should be signed by the defendant, but where the statement and verification were on the same page, and the party confessing the judgment put his signature to the affidavit only, it was held a substantial compliance with the statute. Purdy v. Upton, 10 How. 494 ; Post v. Coleman, 9 id. 64- Section 3. Verification. The statement must be verified by the oath of the defendant. Code, § 383. The verification should be a direct affirmation that the statement is true, so far as it relates to matters within his own knowledge ; and, if a party swears that he "believes the above statement of confession is true," such verification is insufficient, and the judgment entered thereon will be vacated. Ingram v. Bobbins, 33 N. Y. (6 Tiff.) 409. It is not a valid objection to the verification that it was made before one of the plaintiff's attorneys. Post v. Coleman, 9 How. 64. Statement and confession of judgment without action. COURT —County of John Smith, plaintiff, John Jones, defendant. I I, John Jones, defendant, do hereby confess judgment in this court in this action in favor of John Smith, plaintiff, for the sum of , and hereby authorize him or his heirs, executors, administrators or assigns to enter judgment therefor against me for that amount. This confession of judgment is for a debt or liability justly due to the said plaintiff, arising upon the following facts, viz. : (State the facts clearly and fully.) John Jones, Defendant. County of , ss.: John Jones, being duly sworn, says he is the defendant above named, and that the matters stated in the above confession are true. Subscribed and sworn to before me, ) this day of , 187 . J Section 4. Amendment of statement. a. Supreme court may order amendment. The supreme court has power to amend the statement and confession, so as to pre- serve the lien, and its determination in such matter is not review- able on appeal to the court of appeals. The Union Bank v. Bush, 36 N. Y. (9 Tiff.) 631 ; S. C, 3 Trans. App. 235 ; Mitchell Vol. Ill— 87 690 JUDGMENT BY CONFESSION. At what stage — In what cases — The judgment. v. Van Buren, 27 N. Y. (13 Smith.) 300. See Hopkins v. Nelson, 24 N. Y. (10 Smith) 518. b. At what stage. An amendment of the statement may be ordered upon the hearing of a motion made by a subsequent judgment creditor to set aside the confessed judgment for the insufficiency of the statement. Mitchell v. Van Buren, 27 N. Y. (13 Smith) 300. This decision practically overrules McKee v. Tyson, 10 Abb. 392, and the cases digested in the note thereto. See Davis v. Morris, 21 Barb. 152. c. In what cases. The court must determine when a proper case is presented for the exercise of its power, and may .pre- scribe the terms upon which the permission should be accorded. Mitchell v. Van Buren, 27 N. Y. (13 Smith) 300. ARTICLE VI. THE JUDGMENT. Section 1. How entered. The statement must be filed with the county clerk, or with the clerk of the superior court of the city of New York, who must indorse upon it and enter in the judg- ment book a judgment of the supreme or superior court for the amount confessed, with costs and disbursements. Code, § 384. The courts will not allow a party to suffer from the mistakes or omissions of its officers ; and hence, if the clerk through inad- vertence omits to indorse the judgment upon the statement, as required by section 384, the court will, upon proper application, direct such indorsement to be made nunc pro tunc. Neele v. Berryhill, 4 How. 16. Where the confession omitted to authorize the entry of judg- ment in direct terms, it was held that the judgment could not be set aside for irregularity, as the provision for that is merely directory. Park v. Church, 5 How. 381 ; S. 0., 1 Code E. N. S. 47. Indorsement of judgment. COURT. John Smith, plaintiff, agst. John Jones, defendant. On tiling the within confession and statement made by the defendant John Jones, in pursuance of the Code of Procedure, JUDGMENT BY CONFESSION. 691 Effect of insufficient statement — Judgment payable in installments. it is adjudged that the plaintiff John Smith, in whose favor such confession is made, recover against the said defendant John Jones dollars and cents and dollars and cents, costs and disbursements, amounting in all to $ Judgment perfected this day of , 187 . C. T. B., Plaintiff's Attorney. M. W., Clerk. Filed , 187 . Section 2. Effect of insufficient statement. The cases are almost unanimous in holding that an insufficient statement does not render the judgment entered thereon void as between the parties thereto, but only voidable as to intervening equities at the instance of a party interested. Read v. French, 28 N. Y. (1 Tiff.) 285 ; Hopkins v. Nelson, 24 N. Y. (10 Smith) 518 ; Miller v. Earle, id. 110 ; McKee v. Tyson, 10 Abb. 392 ; Sheldon v. Stryker, 34 Barb. 116; S. C, 21 How. 329 ; Dunham v. Water- man, 17 N. Y. (3 Smith) 9 ; S. C., 6 Abb. 357. The court will usually declare the judgment void as to intervening creditors where it is founded upon an insufficient statement (see cases above) ; but, according to the latest decisions in the court of appeals, it lies in the discretion of the court whether it will set aside a judgment which has been entered upon a defective state- ment. It may in a proper case order an amendment of the statement so as to preserve the validity of the judgment even as against subsequent judgment creditors. The Union Bank v. Bush, 3,6 N. Y. (9 Tiff.) 631 ; S. C, 3 Trans. App. 235 ; reversing S. C, 8 Abb. 152; sub nom. Hammond v. Bush; Mitchell v. Van Buren, 27 N. Y. (13 Smith) 300. It is more common, however, when an amendment is ordered, to direct that it be made without prejudice to the rights of inter- vening judgment creditors and purchasers. McKee v. Tyson, 10 Abb. 392, and note thereto ; Johnston v. Fellerman, 13 How. 21 ; Davis v. Morris, 21 Barb. 152. Section 3. Judgment payable in installments. A judgment may be entered for a debt which is not all due or which is paya- ble in installments (see art. 8 of this chap.) ; and although exe- cution may be issued for the installments as they become due, yet the judgment may remain as security for the installments thereafter to become due. Code, § 384. 692 JUDGMENT BY CONFESSION". The costs and execution. ARTICLE VII. THE COSTS. Section 1. Judgment to be entered with, by clerk. The clerk must, upon a proper filing of the statement, indorse upon it, and enter in the judgment book a judgment for the amount confessed, with $5 costs, together with disbursements. Code, § 384. The confession need not authorize the entry of judgment with costs, but it is the clerk's duty to enter the judgment with costs and disbursements. ARTICLE VIII. THE EXECUTION. Section 1. May be enforced as in other cases. After the judg- ment is properly entered it becomes a judgment of the court, upon which executions may be issued and enforced in the same manner as upon judgments in other cases in the supreme and superior court. Code, § 384. It is not a radical defect in the execution if it describes the judgment as having been obtained in an action. Healy v. Preston, 14 How. 20. If the judgment is entered for a debt which is not all due, or which is payable in installments, execution may be issued for the collection of the installments which have become due. The execution in such case should be in the usual form, but must be indorsed by the attorney or person issuing it, with a direction to the sheriff to collect the amount due on the judgment, with in- terest and'costs, which amount must be stated in the indorse- ment, with interest thereon and the costs of the judgment. Code, §384. When other installments are due, execution may be issued to collect them in like manner ; that is, with an indorsement direct- ing the sheriff to collect the amount due, with interest, which amount should be distinctly stated in such indorsement, with the interest, etc. Code, § 384. JUDGMENT BY CONFESSION. 693 Remedies or relief against. ARTICLE IX. REMEDIES OK RELIEF AGAINST. Section 1. Who may be relieved. As has been before remarked, a judgment entered upon a defective statement of confession is good as between the parties to such judgment (see ante, 691, art. 6, § 2), but as to third persons whose rights have attached by a judgment, or by purchase of or lien on property affected by the confessed and defective judgments, the latter judgment is voidable and may be set aside or adjudged void by the court, so far as such third persons and their rights are concerned. Hop- kins v. Nelson, 24 N. Y. (10 Smith) 518 ; Miller v. Earle, id. 110 ; Dunham v. Waterman, 17 N. Y. (3 Smith) 9 ; S. C, 6 Abb. 357. It has been held distinctly that judgment creditors, grantees and mortgagees may attack such a judgment. Norris v. Benton, 30 Barb. 117; Kendall v. Hodgins, 7 Abb. 309 ; S. C, 1 Bosw. 659. An assignee of the defendant in the judgment cannot question its validity. Beekman v. Kirk, 15 How. 228. Nor can it be impeached collaterally. Sheldon v. Stryker, 34 Barb. 116 ; S. C, 21 How. 329. And where property has been sold under an execution on such a judgment, only those having a lien on the property at the time of the'levy can question the purchaser's title. Miller v. Earle, 24 N. Y. (10 Smith) 110. Section 2. How to obtain relief. a. By motion. Relief may be obtained by those entitled to relief against a defective judgment by motion made at special term for that purpose. Chappel v. Chappel, 12 N. Y. (2 Kern.) 215 ; Dunham v. Waterman, 17 N. Y. (3 Smith) 9 ; S. C, 6 Abb. 357 ; Norris v. Denton, 30 Barb. 117. The motion papers are usually entitled in the same manner as the judgment sought to be set aside (see Rae v. Lawser, 18 How. 23 • S. C. 9 Abb. 380 (n), and cases cited above), but sometimes the title of the judgment which seeks priority is also inserted as in The Bank of Kindtrhook v. Jenison, 15 How. 41. It is the better practice to specify in the moving papers the grounds of the motion, but it has been held that this is not nee- 694 JUDGMENT BY CONFESSION". When relief will not be granted — Confession by lunatic or married woman. essary. See Winnebrenner v. Edgerton, 17 How. 363 ; S. O, 8 Abb. 419 ; 30 Barb. 185. The motion should be made upon affidavits showing the facts. See Yon Beck v. Shuman, 13 How. 472. The motion may be opposed by affidavits (see Mitchell v. Van Buren, 27 TS. Y. [13 SmithJ 300), and the party asking for relief must make out his case by a preponderance of proof. Williams v. Hernon, 33 How. 241 ; S. C, 3 Keyes, 99. b. When relief will not be granted. If the judgment which seeks priority was entered upon confession — the statement for which is as defective as that which it seeks to supersede — relief will not be granted. Eae v. Lawser, 18 How. 23 ; S. C, 9 Abb. 380(n). c. By action. Proceeding by action is a proper method of testing the validity of a senior judgment. Miller v. Earle, 24 1ST. Y. (10 Smith) 110 ; Dunham v. Waterman, 17 TS. Y. (3 Smith) 9 ; S. O, 6 Abb. 357 ; Norris v. Denton, 30 Barb. 117. The plaintiff in the confessed judgment may, in a proper case, bring an action against the parties interested, to have his judg- ment reformed and declared a valid lien on the property against which it was docketed. Union Bank v. Bush, 36 N". Y. (9 Tiff.) 631 ; S. O, 3 Trans. App. 235 ; reversing S. C, sub nom. Ham- mond v. Bush, 8 Abb. 152. d. Confession by lunatic. The committee of a lunatic may bring an action to set aside a judgment entered upon confession of the lunatic. Person v. Warren, 14 Barb. 488. e. Confession by married woman. Where a married woman applied, on motion, for an order setting aside a judgment con- fessed by her previous to the act of 1860, the court denied the motion, but without prejudice to an action by the plaintiff to reform his judgment, or by the defendant for relief against it. Knickerbocker v. Smith, 16 Abb. 241. (See ante, 684, art. 3,§ 2.) CHAPTER VII. JUDGMENT ON DISCONTINUANCE. ARTICLE I. IN GEKEEAL. The proceedings on discontinuance have already been fully discussed under the head of ' ' Terminating actions without trial." See Yol. 2, p. 600. For form of judgment of discontinuance, see id. 516. CHAPTER VIII. JUDGMENT ON INTEKLOCUTOEY DECKEE. ARTICLE I. ENTRY Or JUDGMENT UPON DECKEE, ETC. Section 1. Judgment, how rendered. The various proceedings necessary to be taken upon the execution of interlocutory or decretal orders, prior to the final entry of judgment, have been made the subject of a separate chapter (see ante, p. 338), and, in the present chapter, it is only necessary to treat of the judgment to be entered, and the mode of entry thereof. It should be remembered that no final judgment can be pro- nounced until the execution of the last order reserving further directions. See ante, 338, 389 to 393 ; see, also, 2 Dan. Ch. Pr. (4th Am. ed.) 1366. Upon the final hearing of the cause on further directions, final judgment may be rendered by the court in either of two ways. First, by the allowance of the judgment in the form previously prepared and submitted on such hearing by the moving party ; second, by granting an order which specifies the substance or material points of the judgment, and directing such judgment to be settled in the usual way previous to its entry. The latter of these methods is usually adopted in all cases of judgment rendered upon further directions after an interlocutory reference, for the reason that a judgment of this kind almost invariably contains special provisions and directions which make a previous settlement proper and necessary. See 1 Van Santv. Eq. Pr. 611. Section 2. Entry, when judgment allowed on the hearing. In case the judgment is previously prepared by the moving party and is allowed on the hearing, it is only necessary that it be filed with the clerk and signed by him. The costs when taxed should be inserted therein and the judgment annexed to the judgment roll. This is the rule where the judgment is to be entered in the same county in which it is allowed ; but if allowed in a county other than where the roll is to be filed, the clerk will certify it to such county by indorsing his certificate thereon. The subsequent JUDGMENT ON INTERLOCUTORY DECREE. 697 Entry, when judgment not settled on the hearing. proceedings are identical with those in cases of judgment certified to another county on default of an answer. Section 3. Entry, when judgment not settled on the hearing. Where the judgment is not settled on the hearing, hut its form and terms remain to be settled, the order ,di rec ti.ng judgment must be drawn, and either assented to by the adverse party, or settled, entered and served. The judgment, drawn in pursuance of such order, must be settled in the mode to be observed in sett- ling an order, as to which, see ante, 389 to 393. After being so settled, the judgment may be entered as in other cases. Section 4. Form and contents of judgment roll. The judg- ment roll is made up of the written decision of the court, the order of reference thereon, the report of the referee and accom- panying documents, the order for judgment, and the judgment itself. 1 Van Santv. Eq. Pr. 612. So where exceptions have been taken to the report of the referee, and such exceptions have been brought to argument and passed upon on the final hearing, and have in any respect affected or modified the referee's report, in such case, they should properly form part of the judgment roll. 1 Van Santv. Eq. Pr. 612. Mere formal proceedings, such as proof of the service of notice of filing report, or exceptions, or of notice of final hearing, which go to the regularity only, and not to the substance of the judgment, need not be included in the judgment roll. Section 5. Costs. Costs cannot be entered in a judgment in an equity suit, unless specially adjudged by the court ; but if so entered without a decision or order of the court granting an allow- ance of them, it is merely an irregularity which may be corrected by motion to set aside the judgment, or, if preferred, to strike out the allowance of costs. This will not. however, affect the judgment itself, either on appeal or in respect to any proceed- ings to enforce it, or upon any question arising in regard to its validity. See 1 Van Santv. Eq. Pr. 612, 613. ARTICLE II. RECTIFYING, AMENDING AND VACATING, ETC. Section 1. Decree or judgment, how amended before entry or enrollment. Under the former practice in chancery, clerical mis- takes in decrees or orders, or errors arising from any accidental Vol. III. —88 698 JUDGMENT ON INTERLOCUTORY DECREE. — ■ ■ — -^ Decree or judgment how amended before entry or enrollment. slip or omission, might at any time before enrollment be cor- rected, upon motion or petition, without the form and expense of a rehearing. Lawrence v. Cornell, 4 Johns. Ch. 546 ; Clark v. Hall, 7 Paige, 382; Rogers v. Rogers, 1 id. 188; Wallis v. Thomas, 7 Ves. 292 ; Turner v. Hodgson, 9 Beav. 265 ; Thomp- son v. Goulding, 5 Allen, 81 ; Loyd v. Hicks, 31 Ga. 140. Thus, a decree was amended where, through inadvertence, costs had been given by it to a party in the case where he was not entitled to them. Murray v. Blatchford, 2 Wend. 221. And not only might a decree be amended or corrected, on motion or petition as to mere clerical errors, but by the insertion of any provision or direction, which would have been inserted as a matter of course, if the same had been asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court. Clark v. Hall, 7 Paige, 382. See Jenkins' v. Mdredge, 1 Wood & M. 61. In all cases where the alteration sought was merely consequen- tial upon the decree itself, or the addition of some direction which had been omitted, the omission was supplied by a dis- tinct order, without altering or interlining the decree itself. Clark v. Hall, 7 Paige, 382 ; Lane v. Hoobs, 12 Ves. 458. But where the alteration could not be made by supplemental order, as in cases of error in the direction of the decree, the court ordered the register to attend with the book itself, and made the alteration in open court. Tomlins v. Palk, 1 Rus. 476 ; 1 Barb. Ch. Pr. 352 ; 1 Van Santv. Eq. Pr. 613. So, in a case decided under the Code, this practice is approved, and it is said that a judgment record should not be amended by an obliteration or erasure, even when it leaves the passage legible. Sluyler v. Smith, 2 Bosw. 673. The proper mode is by entering an order of amendment, in the proper order book kept by the clerk, and appending a copy thereof to the judgment record. It is also proper to mark the passages struck out by the amendment by brackets or lines of distinction, and to refer by entry in the mar- gin of the judgment to the order of amendment, by its date ; or the judgment, as amended, may be entered anew, if the party so desire. Although this is the proper practice, yet it was also held that amending by an erasure was not ground for vacating the amended judgment. lb. See Laverty v. Moore, 33 N. Y. (6 Tiff.) 658. JUDGMENT ON INTERLOCUTORY DECREE. 699 How amended after entry or enrollment. Section 2. How amended after entry or enrollment. After the enrollment of the decree, the general rule was that, if it had been regularly obtained, it could not be altered in other respects than mere form, or on account of surprise, except by bill of review. Bennett v. Winter, 2 Johns. Ch. 205 ; Wiser v. Blachley, id. 488 ; Ray v. Oonyior, 3 Edw. Ch. 478. But in some cases the court extended the indulgence of rectifying decrees in which there had been clerical mistakes, to decrees which had been actu- ally enrolled. Thus, in cases of miscasting, where the matter was apparent upon the face of the decree itself to have been erro- neous, it was permitted to be explained and rectified by order ; so, if some part of the decree was omitted in the enrollment, it was allowed to be inserted, upon motion to the court. See Beek- man v. Peck, 3 Johns. Ch. 415 ; Clark v. Hall, 7 Paige, 382 ; Thompson v. Ooulding, 5 Allen. 81. And, under the Code, it has in like manner been permitted to amend a judgment after entry and enrollment, by correcting a mistake, on motion merely, and without a rehearing. Thus where, in a judgment of sale, the sale was directed to be adver- tised three weeks, instead of six as required by law, but in fact the advertisement was published six weeks, it was held, even after the sale, that the error might then be corrected on motion, and the purchaser be compelled to take title. Alvord v. Beach, 5 Abb. 451. See Gaskin v. Anderson, 55 Barb. 259 ; S. C, 7 Abb. N. S. 1 ; S. C. affirmed, 8 id. 312. A judgment, after being enrolled, may, on motion, be amended and rectified by filing and attaching to the judgment roll any papers, necessary to the judgment, which the party making up the judgment roll may have omitted to file. Waring v. Waring, 7 Abb. 472. And it has been held that, even after a sale in a partition suit, the court will allow a judgment roll to be so amended by filing, nunc pro tunc, a bond of a guardian ad litem for an infant defendant. Croghan v. Livingston, 25 Barb. 336 ; S C affirmed, 6 Abb. 350 ; 17 N. Y. (3 Smith) 218. See McMur- ray v. McMurray, 41 How. 41 ; 60 Barb. 117 ; 9 Abb. N. S. 315. The omission to file such a bond is an irregularity merely, which does not affect the validity of the judgment or discharge the pur- chaser from completing the contract. Croghan v. Livingston, 25 Barb. 336. He may not, however, be compelled to complete his contract, or take title, until the amendment is made. Waring v. Waring, 7 Abb. 472. 700 JUDGMENT ON INTERLOCUTORY DECREE. By bill of review. A judgment roll may also be amended by inserting an order, nunc pro tunc, withdrawing one of several causes of action that has been abandoned on the trial. Fry v. Bennett, 3 Bosw. 200 ; S. O, 9 Abb. 45 ; S. C. affirmed, 28 N. Y. (1 Tiff.) 324. .But such amendments and all similar ones made after judgment, are per. mitted only for the purpose of sustaining th£ judgment. Englis v. Furniss, 3 Abb. 82 ; Gasper v. Adams, 24 Barb. 287 ; Wil- liams v. Birch, 6 Bosw. 674. The Code provides that "the court may, before or after judg- ment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party,' or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Code, § 173. The power of amendment thus conferred by the above pro- visions extends to a judgment as well as to pleadings and process, and is said to be sufficiently comprehensive to include almost all cases which can arise and call for the interposition of the court. Sherman v. Fream, 8 Abb. 33. See Smith v. Goe, 7 Rob. 477. Application to correct a general term judgment as to any mere matter of form, or as to any proper amendment embraced within the above provisions of the Code, may be made at special term. De Agreda v. Mantel, 1 Abb. 130 ; Ayres v. Covill, 9 How. 573 ; Corning v. Powers, id. 54. But a judgment of the general term cannot be altered or set aside by the special term upon any matter connected with the merits. lb. ; Englis v. Furniss, 3 Abb. 82. Section 3. By bill of review. When the correction of an en- rolled decree under the former practice in chancery was desired, in other respects than those of mere form, mistake or surprise, the proper way to proceed was by bill of review. See 2 Dan. Ch. Pr. (4th Am. ed.) 1575 ; Bennett v. Winter, 2 Johns. Ch. 205 ; Wiser v. Blachly, id. 488. A bill of this character could only be brought upon error in law appearing on the face of the decree without further examination of matters of fact, or upon some new matter which had been discovered after the decree, and could not possibly have been used when the decree was made. See Perry v. Phelps, 17 Ves. 178 ; Wiser v. Blachly, 2 Johns. Ch. JUDGMENT ON INTERLOCUTORY DECREE. 701 "Vacating judgment. 488 ; Edmondson v. Moseby, 4 J. J. Marsh. 500 ; Brewer v. Bowman, 3 id. 492. The practice of correcting an enrolled judg- ment, in like cases under the Code, is presumed to be similar to the former practice by bill of review, for the details of which reference is made to books on chancery practice. See 1 Van Santv. Eq. Pr. 616. A proceeding of this kind will not be sustained merely upon the ground that the court has decided wrong upon a question of fact. Webb v. Pell, 3 Paige, 368 ; Getzler v. Saroni, 18 111. 511 ; Eaton v. DicMhson, 3 Sneed (Tenn.), 397 ; Love v. Blewit, 1 Dev. & Bat. Eq. 108 ; Dougherty v. Morgan, 6 Monr. 153. And if brought to present new matters discovered since the judgment, the new matter must be relevant and material, and such as might probably have occasioned a different determination. Wiser v. Blaclily, 2 Johns. Ch. 488 ; Livingston v. Hubbs, 3 id. 124 ; Pendleton v. Fay, 2 Paige, 204 ; Patridge v. Usborne, 5 Russ. 195 ; Young v. KeigTily, 16 Ves. 348 ; Wilson v. Webb, 2 Cox, 3. See 2 Dan. Ch. Pr. 1577. Section 4. Tacating judgment. Another method by which an amendment or correction of an enrolled judgment may be ob- tained, is by motion to set the judgment aside, so as to enable a party to make a defense upon the merits, in a case where he has been deprived of such defense either by mistake or accident, or through the negligence of his attorney. This was allowed under the former practice in equity. Tripp v. Vincent, 8 Paige, 176. And where the rights of third parties were not thereby preju- diced, a decree would be opened though it had been partly exe- cuted, as by a sale under the decree, where the complainant had purchased, but had not parted with his interest to a bona fide purchaser or mortgagee. MillspaugTi v. McBride, 7 Paige, 509. Under our present practice, ample power in this respect is conferred by the provisions of the Code, which authorizes the court .to relieve a party from a judgment taken against him "through his mistake, inadvertence, surprise, or excusable neg- lect," at any time within one year after notice of the judgment. Code, § 174. And it has been held, that a party who has a judg- ment in his favor may, on application to the court, under this section of the Code, have redress or be relieved, the same as though judgment was against him. Montgomery v. Ellis, 6 How. 326. But, in such case, sufficient excuse or cause must 702 JUDGMENT OK INTERLOCUTORY DECREE. Vacating judgment. be shown by Mm to satisfy the court that the judgment ought to be opened. Mann v. Provost, 3 Abb. 446. Irregularity in the entry of a judgment may always be prop- erly urged as a good ground for setting it aside ; and a judgment of the general term may even be set aside at special term on this ground, by motion [Englis v. Furniss, 3 Abb. 82); but where a party is desirous of relief against a judgment which can be fully obtained by means of an amendment thereof, he should make application for such amendment only, and a motion to vacate the judgment in such case will, or at least may, very properly be denied. Sherman v. Fream, 8 Abb. 33. CHAPTER IX. ENTKY AND NOTICE OP JUDGMENT. AETICLE I. IN" GENERAL. Section 1. What may Tbe entered or enrolled. All ordinary judgments in civil actions are required to be entered in the judg- ment book to be kept by tbe clerk. See Code, §§ 278, 279, 280. Also "any order or judgment directing tbe payment of money, or affecting tbe title of property, if founded on petition, wbere no complaint is filed, may, at the request of any party inter- ested, be enrolled and docketed as other judgments." Sup. Ct. Rule 35. It sbould be remembered that the entry is not essential to tbe existence and force of the judgment rendered. The rendition of a judgment is a judicial act, but its entry upon the record is s merely ministerial {Fish v. Emerson, 44 N. Y. [5 Hand] 376 ; Matthews v. Houghton, 11 Me. 377 ; Stephens v. Santee, 49 N. Y. [4 Sick. J 35 ; Allen v. Godfrey, 44 1ST. Y. [5 Hand] 433), and in no case is that which the court performs judicially to be avoided by the action or want of action of the judges or other officers of the court in their ministerial capacity. lb. See Freem. on Judg. 21. Section 2. By whom entered. It is the right, and is also made the duty of the party who succeeds on the main issue to enter judgment. Thus where a plaintiff succeeds in an action, but the sum recovered is too small to entitle him to costs, but the defendant is entitled to costs instead, it is nevertheless the duty of the plaintiff to enter judgment. Fobes v. Meigs, 3 Wend. 308. See Johnson v. Sagar, 10 How. 552. In case the party whose duty it is to enter judgment neglects or refuses to do so, the opposite party may compel him, by motion, to do it (Purdy v. Peters, 23 How. 328 ; S. C., 15 Abb. 160 ; Anonymous, 1 How. 200. See Bank of Geneva v. HotchMss, 5 How. 478; S. C, 1 Code R. N. S. 153; Lentilhon v. City of New TorTc, id. Ill ; S. C, 3 Sandf. 721 ; Canfield v. Gaylord, 12 Wend. 236), or he may do it himself, on obtaining leave, which leave is granted by the court, as a matter of couse. Bunnell v. 704 ENTRY AND NOTICE OP JUDGMENT. When to be entered — Entry nunc pro tunc. Griffin, 8 Abb. 39. See BToyt v. Slain, 12 Wend. 188 ; Albany and West Stockbridge R. R. v. Cady, 6 Hill, 265. If, in such case, the defendant should enter judgment without leave obtained, it will not be sufficient ground for setting the judgment aside {Bun- nell v. Griffin, 8 Abb. 39) ; but ordinarily he should be charged with costs of the motion, as a condition of allowing it to stand. See Frisbie v. Riley, 12 Wend. 249. Section 3. When to be entered. The party prevailing in an action has a clear right to have his judgment entered up, and the roll filed immediately on the final decision being made, unless his proceedings are stayed by an order of the court. Lynde v. Cowenhoven, 4 How. 327 ; S. C, 3 Code R. 7 ; Broz v. Lakey, 2 Sandf. 681 ; S. C, 2 Code R. 83. But no judgment can be entered against a party until all the issues raised by him have been decided. Thus, a party cannot perfect judgment on an issue of law, while there are issues of fact undisposed of in the cause {Sutherland v. Tyler, 11 How. 251 ; Belknap v. McLntyre, 2 Abb. 366) ; and a judgment entered in such case is irregular, and will be set aside on motion. Masters v. Barnard, 1 Code R. N. S. 407 ; S. C, 6 How. 113. So, if a reference is ordered on a trial, to take an accounting, judgment cannot be entered until the accounting has been had, and every thing essential to the judg- ment has been ascertained. McMahon v. Allen, 7 Abb. 1 ; Law- rence v. Farmers' Loan and Trust Co., 15 How. 57 ; S. C, 6 Duer, 689. See People v. Albany & Susquehanna Railroad Co., 5 Lans. 25, 35 ; Smith v. Lewis, 1 Daly, 452. Section 4. Entry nunc pro tunc. The entry of a judgment or decree, nunc pro tunc, seems to have been permitted by courts of law and of equity from the earliest period (See Shephard v. Brenton, 20 Iowa, 41 ; Mays v. Hassell, 4 Stew. & Port. 222 ; Mayor of Norwich v. Berry, 4 Burr. 2277 ; Hodges v. Tempter, 6 Mod. 191 ; Evans v. Rees, 12 Ad. & El. 167) ; and the time within which the order might be obtained was never limited. Thus, in one case, where the original decree had been lost, the court permitted it to be entered nunc pro tunc from the office copy, after a lapse of twenty-three years. Jesson v. Brewer, 1 Dick. 370. So, in later times, there are numerous instances of an entry of judgment, nunc pro tunc, after a long interval. See Seaman v. Brake, 1 Caines, 9 ; Chichester v. Cande, 3 Cow. 39, and note ; Lawrence v. Richmond, 1 Jac. & W. 241 ; Bonne v. Lewis, 11 Yes. 601. ENTEY AND NOTICE OF JUDGMENT. 705 Entry nunc pro tunc. The entry of judgment, nunc pro tunc, is intended to be in furtherance of justice, and it will not be ordered where the rights of third parties acquired in the mean time would be thereby injuriously affected. See cases above cited ; see, also, McCor- mack v. Wheeler, 36 111. 114 ; Graham v. Lynn, 4 B. Monr. 18. For, although the public are bound to take notice of the regular records, they are not obliged to know of the existence and understand the meaning of memoranda made by the judge, and upon which the record may, afterward, happen to be perfected, lb. ; Jordan v. Petty, 5 Fla. 326. When a party to an action dies after the trial, and before judgment, the court will order the entry of judgment nunc pro tunc as of the time of trial. Campbell v. Mesier, 4 Johns. Ch. 334 ; Wood v. Keyes, 6 Paige, 478 ; Donne v. Lewis, 11 Ves. 601 ; Ehle v. Moyer, 8 How. 244. See Kissam v. Hamilton, 20 How. 369. A judgment will not be entered nunc pro tunc as of a date prior to the actual judgment, merely to enable a party to effect the amount of his costs: Moore v. Westervelt, 14 How. 279. Section 5. Upon whose direction. The Code requires that "judgment upon an issue of law or of fact, or upon confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of section 246, and by section 384, and except where it may be given at the general term as provided in section 265) shall, in the first instance, be entered upon the direction of a single judge or report of referees." Code, § 278. A judgment upon a written offer of the defendant (section 385), although within the terms, is not within the spirit of the above section of the Code (278), and may be entered without the direc- tion of a judge of the court. Hill v. Northrop, 9 How. 525. The only case in which a judge at chambers can grant a judg- ment is under section 247 of the Code, where judgment may be given on a frivolous demurrer, answer or reply. In all other cases judgment can be rendered only by the court when sitting as such. Aymar v. Chase, 1 Code K. N. S. 330 ; S. 0, 12 Barb. 301. The report of a referee being, in fact, equivalent to the decision of a judge, is, of itself, sufficient authority to the clerk to enter up judgment accordingly, without any special direction by the court. Hancock v. Hancock, 22 N. Y. (8 Smith) 568 ; Code, § 272. Vol. III. — 89 706 ENTRY AND NOTICE OF JUDGMENT. In actions for special relief — Judgments on verdict. Section 6. In actions for special relief. Where a judgment is ordered in any action in which special relief is granted, a draft of the judgment, in conformity with the decision, should be pre- pared by the successful party, and a copy thereof served by him upon his opponent, with a notice of the time and place of settle- ment. Ordinarily, two days' notice is considered sufficient. If the defendant has appeared in the action, so as to be enti- tled to notice of the proceedings, the plaintiff cannot settle ex parte the form of the judgment to be entered, where it grants him special relief. The defendant is entitled to notice of the application to settle the judgment, and, if entered without such settlement, or without consent, it will be set aside on motion. Wood v. Lambert, 1 Code R. N. S. 214 ; S. C, 3 Sandf. 724. ARTICLE II. JUDGMENT ON VEEDICT. Section 1. Entry of verdict. The Code requires that "upon receiving a verdict the clerk shall make an entry in his minutes specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon or an order that the cause be reserved for argument or further consideration." Code, § 264. Section 2. Entry of judgment by clerk. Unless a different di- rection be given by the court, it is made the duty of the clerk to enter a judgment in conformity with the verdict entered by him in his minutes. lb. ; Morrison v. N. T. & New Haven B. R. Co., 32 Barb. 568. If he has made an erroneous entry in his minutes, he may amend them so as to correct the error, and conform the entry to the decision made by the court. Smith v. Coe, 7 Rob. 477. There are but two cases in which a cause tried before a jury can be taken to the general term before judgment and judgment there given. First, where exceptions are ordered to be heard by the general term in the first instance. Second, where there is an uncontroverted state of facts, and the case presents only questions of law, and the judge directs a verdict subject to the opinion of the court. Matter of Welch, 14 Barb. 396 ; 7 How. 173 ; Cobb v. Cornish, 16 N.Y. (2 Smith) 602 ; S. C, 15 How. 407; 6 Abb. 129. In all other cases judgment must be entered in conformity to the ENTRY AND NOTICE OF JUDGMENT. 707 Judgment on trial of fact by court. verdict at the circuit, on the direction of a single judge, agreeably to the provisions of the Code, section 264. See Taylor v. Har- low, 11 How. 285. On a verdict directed to be taken subject to the opinion of the court at general term, the judgment may be rendered for a dis- missal of the complaint where the case might have been thus dis- posed of in the first instance. Such was formerly the practice, and it has not been changed by the Code. See Crittenden v. Empire Stone Dressing Co., 3 Abb. 71 ; S. C, 6 Duer, 30. ARTICLE III. JUDGMENT OS TRIAL OP FACT BY COURT. Section 1. Decision, when filed. Upon the trial of a question of fact by the court its decision is required to be given in writing, and it must be filed with the clerk within twenty days after the court at which the trial took place. Code, § 267. This decision constitutes the sole proper authority for entering up judgment. Section 2. Effect of not filing decision. A judgment upon a trial by the court cannot be regularly entered unless the decision of the court has been filed as prescribed by the Code, section 267. See Burger v. Baker, 4 Abb. 11 ; Thomas v. Tanner, 14 How. 426. If, however, judgment should be entered without the decision of the court being thus filed, the judgment is not void {Lewis v. Jones, 13 Abb. 427. See Sands v. Church, 6 N. Y. [2 Seld.] 347), but is merely irregular, which is sufficient ground for supporting a motion to set it aside {Thomas v. Tanner, 14 How. 426; Burger v. Baker, 4 Abb. 11), but not for an appeal. Hulce v. Sherman, 13 How. 411. On a motion to set aside a judgment for irregularity in this respect, it must clearly appear on the moving papers that no de- cision has in fact been filed (Lewis v. Jones, 13. Abb. 427), and it is held that where there is no pretense of merits, or that the action was not correctly decided, the omission to file the decision in writing may be disregarded under section 176 of the Code. lb. If, upon motion by either party to a general or special term of the court, it shall be made to appear that the decision is unrea- sonably delayed, the court may make an order absolute for a new trial, or may order a new trial unless the decision shall be filed by a time to be specified in the order. Code, § 267. 708 ENTEY AND NOTICE OP JUDGMENT. Requisites of decision — Correcting decision — Judgment, when entered. Section 3. Requisites of decision. The Code requires the de- cision to be given in writing, and that it contain a statement of the facts found, and the conclusions of law separately ; and it must also be signed by the judge, otherwise the judgment will be irregular. See Code, § 267 ; Peek v. Tories, 14 How. 416 ; Thomas v. Tanner, id. 426 ; Deming v. Post, 1 Code E. 121 ; HvXce v. Sherman, 13 How., 411. Section 4. Correcting decision. The proper remedy, in case a party feels aggrieved at the finding of the judge, is by motion to have the finding corrected ; and if a party omits this remedy, even in a proper case, it cannot be considered on an appeal from the judgment. Martin v. Albright, 23 How. 306 ; S. 0, 14 Abb. 305 ; Sharp v. Wright, 35 Barb. 236 ; Niles v. Price, 23 How. 473. See Caster v. Shipman, 35 N. T. (8 Tiff.) 533 ; Bunten v. Orient Ins. Co., 2 Keyes, 667 ; affirming S. C, 8 Bosw. 448. Section 5. Judgment, when entered. Prior to the amendment of section 267 of the Code in 1870, it was settled to be the duty of the clerk, unless otherwise directed by the court, to enter judgment at once on the filing of the decision, and the successful party might cause it to be done. See Lynde v. Cowenhoven, 3 Code E. 7 ; S. C, 4 How. 327 ; Cotes v. Smith, 29 id. 326 ; S. C. affirmed, 31 id. 146, 638(w). It was also settled that the omission of the clerk to enter the judgment would not be allowed to prejudice the party. Butler v. Lee, 33 How. 251 ; S. C, 3 Keyes, 70. The amendment to the Code of the above-named year provides, and the practice now is, that, in cases of trial by the court, judg- ment upon the decision shall be entered accordingly, four days after the decision is filed with the clerk. Code, § 267. See People v. Albany and Susquehanna P. P. Co., 57 Barb. 204, 209O). ' Hi-. ">_: I Section 6. Judgment must conform to depision. As the de- cision of the judge upon the trial of a question of fact by the court is the only authority for entering judgment, the judgment must, in all respects, conform to the decision, and must contain no provisions not embraced therein. LoeschigTc v. Addison, 19 Abb. 169 ; S. C, 3 Eob. 331. See ante, 220, where this subject is more fully discussed under the head of "Trial of issues of fact by the court." ENTRY AND NOTICE OP JUDGMENT. 709 Judgment on trial of an issue of law by tie court. ARTICLE IV. JUDGMENT ON TEIAL OB AN ISSUE OE LAW BY THE COUBT. Section 1. Authority for entering. As upon the trial of an issue of fact by the court, so the only authority for the entry of judgment on the trial of an issue of law is the decision of the judge who tried the issue. Code, § 267. And any thing in the judgment not in the decision is improper and erroneous. See Chamberlain v. Bempsey, 9 Bosw. 212 ; S. C, 14 Abb. 241 ; Loeschigk v. Addison, 3 Rob. 331 ; S. C-, 4 Abb. N. S. 210 ; 19 Abb. 169. Section 2. When entered. Judgment upon the decision is re- quired to be entered accordingly four days after the filing of the decision. Code, § 267. See ante, 236, "Trial of issue of law by the court." Section 3. How entered. The entry of the judgment must be made by the clerk as in all other cases. See Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226 ; S. C, 1 Code R. N. S. 380 ; Lentilhon v. Mayor, etc., of New York, id. Ill ; S. C, 3 Sandf. 721. The clerk may correct his own error, and conform his entry to the decision which has been made by the court. Smith v. Coe, 7 Rob. 477. Where judgment is ordered for the plaintiff, on a frivolous answer or demurrer, he takes judgment in the same manner as if no answer or demurrer had been put in, provided there is no other issue. Aymar v. Chase, 1 Code R. N. S. 141 ; Saltus v. Kipp, 2 Abb. 382 ; S. C, 5 Duer, 646 ; 12 How. 342 ; King v. Stafford, 5 id. 30. ARTICLE V. JUDGMENT ON TRIAL BY EEFEEEE. Section 1. Authority for entering. When the whole issue is tried by a referee, the same effect is given to his decision, under the provisions of the Code, as to that of a single judge, and judgment is entered upon it accordingly, without any special direction by the court. Code, §§ 272, 278. See Hancock v. Han- cock, 22 N. Y. (8 Smith) 568; Bihinv. Bihin, 17 Abb. 19, 27; Benouil v. Harris, 1 Code R. 125 ; S. C, 2 id. 71 ; 2 Sandf. 641 ; 710 ENTEY AND NOTICE OF JUDGMENT. When, and how entered — Ccompelling entry. Oriffing v. Slate, 3 Code E. 213 ; S. C., 5 How. 205 ; McMahon v. Allen, 7 Abb. 1 ; 27 Barb. 335. The report of the referee in such case does not require the confirmation of the court (lb.), as is sometimes necessary on a reference upon failure to answer, before judgment can be entered. Cram v. Bradford, 4 Abb. 193. Section 2. When entered. As the rules regulating the entry of judgment, on the decision of a judge, are equally applicable to judgment on the report of a referee (Code, § 272), the entry in the latter case, as in the former, must be made accordingly four days after the filing of the report or decision of the referee. See Code, § 267 ; 8 Abb. N. S. 122, note. Where the referee's report is in favor of the plaintiff, and it states that an accounting must be had before final judgment can be rendered, an order will be entered referring the case back to the referee, to take and state the account, and until such account- ing has been had, no judgment can be entered. Lawrence v. Farmers' Loan and Trust Go., 15 How. 57 ; S. C, 6 Duer, 689 ; McMahon v. Allen, 27 Barb. 335 ; S. C, 7 Abb. 1. Section 3. How entered. Judgment upon the report of a referee is entered in the same manner as judgment upon the decision of a judge, which is by the clerk ; the entry of judg- ment being merely clerical. Currie v. Cowles, 7 Eob. 4 ; McMa- hon v. Allen, 7 Abb. 1 ; S. C, 27 Barb. 335 ; Oriffing v. Slate, 5 How. 205. See Coope v. Bowles, 28 How. 10 ; S. C, 18 Abb. 442 ; 42 Barb. 87. Section 4. Compelling entry. In a case where the successful party neglects or refuses to enter judgment, the opposite party should first request him to do so. If he still refuses, the aggrieved party should move that an order be made directing him to file the report, and enter up judgment upon it. In case the successful party still refuses, his opponent may then have a copy of the report, which he may file, and upon which judgment may be entered. Richmond v. Hamilton, 9 Abb. 71 (n). See, also, Richards v. Allen, 11 N. Y. Leg. Obs. 159. ARTICLE VI. % JUDGMENT Q~S OKDER EOR LEGAL BELIEF. Section 1. Judgment on admitted demand. The Code provides that when the answer of the defendant expressly, or by not deny- ENTRY AND NOTICE OP JUDGMENT. 711 Judgment on frivolous demurrer — On sham pleadings. ing, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy. Code, § 244. The cases in which such order may be made and enforced as a judgment have already been fully noticed, and need only be re- ferred to in this place. See vol. 2, p. 590. For form of order see id. p. 594. Section 2. On frivolous demurrer. The Code provides that if a demurrer be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judg- ment may be given accordingly. Code, § 247. For full proceed- ings on the application for judgment in such case see, ante page 612, and for form of judgment see ante, page 637. See, also, vol. 2, p. 496. Section 3. On sham pleadings. See vol. 2, p. 492. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may in their discretion impose. Code, § 152. When an answer has been stricken out as sham and irrelevant, the proper method of obtaining judgment is to proceed as if no answer had been put in. Aymar v. Chase, 1 Code R. N. S. 141 ; DeForest v. Baker, 1 Rob. 700 ; S. C, 1 Abb. N. S. 34. If the summons be for relief, the defendant is entitled to the usual eight days' notice of application for judgment after the answer has been stricken out. lb. ; Code, § 246, subd. 2. The motion to strike out an answer as sham and insufficient may be made at any time before trial, even though the plaintiff has obtained an order for time to reply. Miln v. Vose, 4 Sandf. 660. See ante, 613. Form of notice of motion. {Title of cause.) Please take notice, that on the affidavit herewith served, and on the pleadings in this action, the undersigned will move the court, at a special term to be held at , on the day of ,18 , at o'clock in the noon, or as soon there- after as counsel can be heard, to strike out the answer herein as sham, or for such other relief as may be just (with costs). (Date.) (Signature.) (Address.) 712 ENTRY AND NOTICE OF JUDGMENT. Judgment book — Entry, when made. Order thereon- {Title of cause) {At a special term, etc.) On reading and filing {describe motion papers), and on motion of E. B. for the plaintiff, and after hearing D. M. in opposition thereto {or, and on proof of dne service of notice of the motion, and no one appearing in opposition thereto) : Ordered: That the answer of the defendant. Gr. S., in this action be stricken ont as sham, with dollars costs to plaintiff. A motion to strike out one of several defenses as sham may- be united with an application for judgment on account of the frivolousness of the other defenses, under section 247 of the Code {The People v. McCumber, 18 N. Y. [4 Smith] 315) ; but if the answer is frivolous, the order should not be that it be struck out, but that it be overruled and plaintiff have judgment. lb. ; Briggs v. Bergen, 23 N. Y. (9 Smith) 162. See Fettretch v. McKay, 11 Abb. N. S. 453 ; S. C, 47 N. Y. (2 Sick.) 427 ; Thompson v. The Erie R. R. Co., 45 N. Y. (6 Hand) 468 ; Farmers' National Bank of Fort Edward v. Zeland, 50 N. Y. (5 Sick.) 673. ARTICLE VII. JUDGMENT BOOK. Section 1. Entry of judgment in. The Code requires the clerk to keep, among the records of the court, a book for the entry of judgments, to be called the "judgment book" (Code, § 279), in which he must enter all judgments. Code, §280. This requirement ought, in no case, to be dispensed with or disregarded, and it is equally applicable where the decision of the judge is made in writing and filed as in any other case. Sherman v. Postley, 45 Barb. 348 ; Loeschigk v. Addison, 3 Rob. 331 ; S. C, 19 Abb. 169 ; Schenectady & Saratoga Plank Road Co. v. Thatcher, 6 How. 226 ; S. C, 1 Code R. N. S. 380. And so in a controversy submitted without action. Code, § 373. Strictly speaking, there is no judg- ment until the entry thereof by the clerk in the judgment book. Code, § 373 ; Blydenburgh v. Northrop, 13 How. 289 ; Lynch v. Rome Gas Light Co., 42 Barb. 591. See Mehl v. Vonderwulbeke, 46 N. Y. (1 Sick.) 539. Section 2. Entry, when made. A strict compliance with the provisions of the Code would seem to make it the duty of the clerk to enter judgment at once, when judgment is actually pro- ENTRY AND NOTICE OF JUDGMENT. 713 Effect of omission to enter. nounced, unless otherwise ordered by the court. Stimson v. Higgins, 9 How. 86 ; S. C, 16 Barb. 658. The provisions on the subject are, however, merely directory, and a substantial com- pliance with them is all that is absolutely necessary. See Appleby v. Barry, 2 Rob. 689 ; Sears v. Burnham, 17 N. Y. (3 Smith) 445 ; affirming S. C, 2 Bradf. 394. In practice the entry is usually made by the clerk on completion of the adjustment and ascertainment of the precise amount recovered, and some- times even afterward from the judgment roll as filed. See 2 Whit. Pr. 502. See ante, 789, as to the time of entering judg- ment, after four days, etc. Judgments must be entered or docketed by the clerks within legal hours, and at no other time. Sup. Ct. Rule 12. In the county of New York these hours are from 9 A. m. to 4 p. m. In the other counties from 8 A. m. to 6 p. m., between the 31st of March and the 1st of October ; and for the other six months from 9 A. M. to 5 p. m., Sundays and holidays excepted. Laws of 1860, ch. 276. The lien of a judgment takes place from the time when the entry is actually made. Blydenburgh v. Northrop, 13 How. 289. See France v. Hamilton, 26 How. 180 ; Wardell v. Mason, 10 Wend. 573 ; Lemon v. Staats, 1 Cow. 592. Section 3. Effect of omission to enter. Where a substantial right is involved, the court will not allow a party to suffer through the omissions or mistakes of an officer of the court. Seaman v. Drake, 1 Caines, 9 ; Close v. Gillespey, 3 Johns. 526 ; Chichester v. Cande, 3 Cow. 39 ; Renouil v. Harris, 1 Code R. 125 ; S. C, 2 Sandf. 641. And as it is clearly the duty of the clerk and not of the party to enter judgment, the court will order it to be done nunc pro tunc at any time. Neele v. Berry- Mil, 4 How. 16. The omission of the clerk to sign the judgment does not affect its validity ; and the court may also direct it to be done nunc pro tunc, and will sustain all intermediate proceedings on the judgment. Artisans' Bank v. Treadwell, 34 Barb. 553 ; S. C. affirmed, 25 N. Y. (11 Smith) 489, sub nom. Van Alstyne v. Cook; Seaman v. Drake, 1 Caines, 9. See Manning v. Cuyon, 1 Code R. 43. So it is clearly held that the delay of the clerk to enter a final decree in the judgment book does not affect its validity. Butler v. Lee, 3 Keyes, 70 ; S. C, 33 How. 251 ; Lynch v. Rome Gas Light Co., 42 Barb. 591. ( Vol. III. — 90 714 ENTKY AND NOTICE OF JUDGMENT. Judgment roll — By whom furnished. An agreement for staying the entry of judgment is in some cases unlawful, and in such cases it cannot be enforced. Jay v. Be Groot, 28 How. 107 ; affirming S. O, 17 Abb. 38(w). But the party aggrieved by the violation of such an agreement may have equitable relief. lb. ARTICLE VIII. .JUDGMENT ROLL. Section 1. Judgment roll necessary. The Code requires that a judgment roll must, in all cases, be filed with the clerk (Code, § 281) ; and it has been held that the docketing of a judgment, when no judgment roll has been made and filed, is an unauthor- ized and illegal act, and that no lien can be acquired or enforced under it. Townshend v. Wesson, 4 Duer, 342. But, if all the papers constituting the judgment roll are on file, though not attached together, it seems that this will be no objection to the validity of a judgment. Earle v. Barnard, 22 How. 437. Section 2. By whom furnished. Under the Code of 1848, the duty of making up the judgment roll devolved upon the clerk, and he was held responsible for its correctness. See Renouil v. Harris, 1 Code R. 125 ; S. C, 2 Sandf. 641. But the Code now provides that the judgment roll may be furnished by the suc- cessful party or his attorney. Code, § 281. Where he does so furnish it, the clerk should still see that the roll contains all its necessary parts, and, if clearly defective, he may properly refuse to receive it. See Whitehead v. Pecare, 9 How. 35. It is, however, optional with the successful party to furnish the roll, or not, and an order of the court compelling him to do so will be reversed on appeal. Heinemann v. Waterbury, 5 Bosw. 686. In the event of his neglect to furnish the roll, it is then the duty of the clerk to collect the necessary papers from the files, attach them together, and annex thereto a copy of the judgment. Code, § 281 ; Earle v. Barnard, 22 How. 437 ; Heine- mann v. Waterbury, 5 Bosw. 686. See Miller v. White, 10 Abb. N. S. 385, 388 ; S. C., 59 Barb. 434, 440. If this duty is neglected its performance will be compelled by the court, on motion of the adverse party. Lentilhonv. Mayor, etc., of N. Y., 3 Sandf. 721 ; S. C, 1 Code R. N. S. 111. ENTRY AND NOTICE OF JUDGMENT. 715 Contents of Judgment roll. Section 3. Contents of. a. On failure to answer. In case the complaint is not answered by any defendant, the judgment roll must be made up by attaching together the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. Code, § 281, subd. 1. A copy of the judgment here intended is a copy of the entry in the judgment book. Such entry in the judgment book, and copy in the roll, is the only record evidence that judgment has been perfected. Schenectady and Saratoga Plank Road Go. v. Thatcher, 1 Code R. N. S. 380 ; S. C, 6 How. 226 ; Sherman v. Postley, 45 Barb. 348. Hence a judgment roll is defective which contains (instead of the judgment to be entered thereon) the decision of the judge in writing, as required by the two hundred and sixty-seventh section of the Code, on a trial by the court, without a jury. lb. The decision of the judge is, how- ever, a necessary part of, and should be inserted in, the judg- ment roll. Thomas v. Tanner, 14 How. 426. It has been said that the judgment roll, in casea where the complaint is not answered, should contain, in addition to its component parts, as specified by the Code, all orders and papers " necessarily affecting the judgment," as required, when there is an answer. 1 Van Santv. Eq. Pr. 137. This is at least true of all orders which are necessary to show the regularity of the pro- ceedings. Thus, the order for assessment, or writ of inquiry, must be inserted when damages are assessed by a jury or referee. See Code Commissioners' Book of Forms, No. 281. And, when the summons is served by publication, the order for publication, as well as the affidavit of such publication, must be inserted. Code Commissioners' Book of Forms, No. 280. See Hallett v. Righters, 13 How. 45 ; 2 Till. & Shear. Pr. 712. But when a pleading is amended by order or otherwise, the original pleading ceases to be a part of the record, and it is not only unnecessary but improper to insert it in the judgment roll. Brown v. Saratoga R. R. Co., 18 N. Y. (4 Smith) 495. So when an answer has been stricken out as sham and irrelevant, the obnoxious pleading no longer consti- tutes a part of the record, and the defendant cannot have it en- tered thereon. Briggs v. Bergen, 23 N.Y. (9 Smith) 162. The taxed bill of costs and affidavits used upon taxation, notice of adjustment and notice of application for judgment, the proof 716 ENTRY AND NOTICE OF JUDGMENT. Contents of judgment roll — where answer served. of the filing- of lis pendens, etc., which are collateral merely to the judgment and do not "necessarily affect" it, need not be inserted in the j udgment roll, though they should be filed. Sche- nectady & Saratoga Plank Road Co. v. Thatcher, 1 Code R. N. S. 380 ; S. C, 6 How. 226 ; Kerrigan v. Ray, 10 id. 213; Cook v. Dick- er son, 1 Duer, 679. And in an action for the recovery of money only, where the complaint is unverified and judgment is entered upon default of the defendant to answer, it is not essential to the regularity of the judgment that the roll should contain any re- port of the clerk' s assessment of the amount due on the instru- ment on which the action is brought. The Code does not, either in terms or by fair construction, require such a report. Ameri- can Exchange Bank v. Smith, 6 Abb. 1. See, contra, Squire v. Msworth, 4 How. 77. A judgment roll, on failure to answer, must contain proof of due and timely service of the summons. Macomber v. The Mayor, etc., of New York, 17 Abb. 35; Thomas v. Tanner, 14 How. 426. The "report" intended by the Code (§ 281, subd. 1) as part of the judgment roll on failure to answer, is the report of the clerk or referee in cases where such is required, and it may doubt- less be construed to embrace a sheriff' s return to a writ of inquiry or order for assessment of damages. See 2 Till. & Shear. Pr. 71 L. b. Where answer served. In all cases in which the complaint is answered by any defendant, the judgment roll must include the summons and pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment. Code, § 281, subd. 2. Orders and papers which in their nature are merely collateral, and which do not directly affect the actual adjudication, and also matters of mere evidence will, of course, be omitted from the rolL See preceding sub -section a, and cases there cited. In an action where any one of the defendants has answered, affidavit of the fail are of the others to answer does not seem to be required (Catlin v. Billings, 4 Abb. 248 ; S. C, 13 How. 511) ; and as against a defendant who has answered or demurred, proof of service of the summons need not be inserted in the roll. Smith v. Holmes, 19 N. Y. (5 Smith) 271. Where the defendant, by his answer, sets up only a counter- ENTRY AND NOTICE OP JUDGMENT. 717 On dismissal of complaint — After trial and hearing at general term. claim, which is admitted by the plaintiff, his written admission must be inserted in the judgment roll on entering judgment for the excess of his claim. Code, § 246, subd. 1. c. On dismissal of complaint. On the dismissal of the com- plaint for want of prosecution, the judgment roll is properly- made up of the summons, pleadings, order dismissing the com- plaint, and, where the order is conditional, an affidavit showing a non-compliance with its conditions. A variance between the order of dismissal as entered in the minutes by the clerk, and the order as drawn up and inserted in the judgment roll, is held to be a mere irregularity, which can only be taken advantage of, if at all, within one year after perfecting judgment. Martin v. Lott, 4 Abb. 365. d. After trial. In every judgment roll it should distinctly appear that the judgment has been rendered by a court which has jurisdiction of the proceedings, and, when issues have been joined, that those issues have been tried in some manner pre- scribed by law, so as to authorize the judgment. Thus, when an issue of fact has been tried by a jury, a copy of the verdict, entered in the manner prescribed by the two hundred and sixty- fourth section of the Code, must be inserted in the roll. Thomas v. Tanner, 14 How. 426. So if the issue has been tried before a referee, his report stands as the decision of the court, and must appear in the judgment roll. lb. When the action is tried by the court without a jury, the de- cision must be in writing, and, when the roll is made up, the de- cision becomes a necessary part of it (see ante, 715, sub-section a ; Lewis v. Jones, 13 Abb. 427 ; Burger v. Baker, 4 id. 11) ; and the opinion of the judge will not supply its place, nor should it be inserted in the roll at all. Thomas v. Tanner, 14 How. 426. e. After hearing at general term. By the provisions of the Code (§ 333), when a judgment, at general term, is rendered upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise state- ment of the facts upon which they arose, must be prepared by, and under the direction of, the court, and are required to be filed with the judgment roll, and to be deemed a part thereof,, for the purposes of a review in the court of appeals. Code, § 333. /. On appeal. A case or bill of exceptions is to be added to the judgment roll according to the provisions of section 281 of the Code, and this should never be omitted if the party wishes 718 ENTRY AND NOTICE OF JUDGMENT. Effect of omissions in judgment roll — Signing of. to appeal. In case of the omission of a regular case or excep- tions, the appellant is confined to such errors as appear upon the face of the record strictly. Burgler v. Dubernet, 7 Rob. 1 ; Wilcox v. Hawley, 31 N. Y. (4 Tiff.) 648 ; Oldfield v. New York and Harlem R. R. Co., 14 N. Y. (4 Kern.) 321 ; Smith v. Grant, 15 N. Y. (1 Smith) 590 ; Conolly v. Qonolly, 16 How. 224. See The People v. Contracting Board, 46 Barb. 254, 261. A case or exceptions, when settled, may, by an order, be annexed to the judgment roll at any time after the entry of judgment, in the same manner as bills of exceptions were frequently annexed under the former practice. Lynde v. Cowenhoven 4 How. 327 ; 3 Code R. 7 ; Renouil v. Harris, 1 Code R. 125 ; S. C, 2 Sandf. 641 ; Ward v. The Central Park, North and East River R. R. Co., 2 Sweeny, 701. g. Effect of omissions in. Where the judgment roll substan- tially supplies all necessary information, the judgment, though irregular, will not be void on account of mere technical omissions in the roll. Thus it has been held that, where the defendant • appears and answers, the omission of the clerk to annex the summons to the judgment roll does not affect the validity of the judgment. Miller v. White, 10 Abb. N. S. 385 ; S. C, 59 Barb. 434; Hoffnungv. Grove, 18 Abb. 14, 142; S. C, 42 Barb. 548; Calkins v. Packer, 21 id. 275 ; Earle v. Barnard, 22 How. 437. Nor does the omission of the summons and complaint {Martin v. Kanouse, 2 Abb. 390, 393), or an order of reference (lb.), or the omission to enter a rule for judgment on the decision of a demurrer. Whitehead v. Pecare, 9 How. 35. Nor is the judg- ment void because the roll does not contain a copy of the ver- dict (Cook v. Dicker son, 1 Duer, 679), or because it does not embrace a pleading stated to have been withdrawn by defendant before judgment, and to have been mislaid or lost. Hatcher v. Rocheleau, 18 N. Y. (4 Smith) 86. But a paper containing neither process nor pleadings cannot be deemed a judgment roll, and such a general omission in the record will fail to make the judgment a lien on the property of the debtor. Townshend v. Wesson, 4 Duer, 342, 354. Orders in no way affecting the judgment will, of course, be properly omitted from the roll. Section 4. Signing of. The judgment roll ought to be signed by the clerk (Schenectady and Saratoga Plankroad Co., 6 How. 226) ; and this has been said to be a formality which, by the ENTRY AND NOTICE OF JUDGMENT. 719 Amendment of — Suspension of entry. judiciary act (Laws of 1847, ch. 280, § 53), was essential to con- stitute a judgment record. Decker v. Johnson, 16 N. Y. (2 Smith) 439, 450. It has, however, been held under the Code, that sign- ing is not indispensable to the validity of the judgment. The Artisans' Bank v. Treadwell, 34 Barb. 553. And it has been said that the Code seems to dispense with any signing of the roll. Macomber v. Mayor, etc., of New York, 17 Abb. 35, 45. But see 2 R. S. 360 (373), § 11 ; Williams v. Wheeler, 1 Barb. 48 ; Manning v. Guy on, 1 Code R. 43 ; Van Orman v. Phelps, 9 Barb. 500 ; Townshend v. Wesson, 4 Duer, 342. Section 5. Amendment of. A substantial compliance with the requirements of the statute, in affording information to all who might be affected, by the judgment, is all that is necessary in making up the roll ; and omissions and variances, which can work no prejudice, will be overlooked as immaterial ; or, if material omissions or mistakes occur, the roll may be amended on proper application to the court. See, generally, on this sub- ject, Appleby v. Barry, 2 Rob. 689 ; Sears v. Burnham, 17 N. Y. (3 Smith) 445 ; Martin v. Lott, 4 Abb. 365 ; Townshend v. Wes- son, 4 Duer, 342, 353 ; Jackson v. Walker, 4 Wend. 462 ; Swan v. Saddlemire, 8 id. 676. So, if any paper, such as a case or exceptions, which is necessary for the purposes of a review, is incomplete at the time of the entry of judgment, but is afterward perfected, the court will, on proper application, allow it to be annexed nunc pro tunc or otherwise, so as to form part of the clerk's return on an appeal. See Lynde v. Cowenhoven, 3 Code R. 7 ; S. C, 4 How. 327 ; Renouil v. Harris, 1 Code R. 125 ; 2 Sandf. 641 ; Lewis v. Jones, 13 Abb. 427 ; Ward v. Central Park, N. & E. River Railroad Co., 2 Sweeny, 701. ARTICLE IX. SUSPENSION OF ENTRY. Section 1. When a suspension of entry will be ordered. When exceptions are directed to be heard in the first instance, at gen- eral term, under the special power conferred by section 265 of the Code, the entry of judgment must, of course, be suspended, until they are finally disposed of according to the provisions of the section. Where a nonsuit involves important questions, and disposes 720 ENTEY AND NOTICE OF JUDGMENT. Adjustment of costs and notice. of all the plaintiff's rights, it is a proper case for suspending the entry of judgment, and directing that the plaintiff's exceptions to the granting of the nonsuit be heard in the first instance at general term. Malony v. Dows, 18 How. 27 ; S. C, 9 Abb. 86. See, also, ante, 338, 339, 704. ARTICLE X. ADJUSTMENT OF COSTS. Section 1. Where, and at what time, costs must be adjusted. This subject has been fully discussed under the general head of costs. Ante, 551. And it is only intended in this article, to refer to some of the most prominent features of the proceeding. The adjustment of costs is, in strictness, a proceeding subse- quent to the entry of judgment, for by section 311 of the Code, the clerk is directed to insert the costs in the entry of judgment, and not to insert the costs and then enter the judgment. The provisions on the subject are, however, merely directory, and in practice the judgment roll is not usually made up and filed until the costs are adjusted. See Stimson v. Huggins, 16 Barb. 658 ; S. C, 9 How. 86. The clerk by whom the costs are to be adjusted, is the clerk of the court where the action is pending, and in the supreme court, the clerk of the county of venue. Code, § 466 ; Union Rubber Co.rv. Bdbcock, 1 Abb. 262 ; S. C, 4 Duer, 620. Section 2. Notice of adjustment. In all cases in which the adverse party has appeared in the action, notice of the adjust- ment must be given to him by the prevailing party, in the same manner .as other notices are served, except that five days' notice only is required, and, if the attorneys for all the parties reside in the same city, village or town, only two days' notice. Code, §311. A defendant who has not appeared in the action is not entitled to any notice of adjustment (Code, §414), but if he has appeared, he is entitled to such notice, even though he does not answer. Code, § 414 ; Dix v. Palmer, 5 How. 233 ; Elson v. New TorJc Equitable Ins. Co., 2 Sandf. 654 ; S. C, 2 Code K. 30. The omission to give the proper notice in a case where the other party is entitled to it does not affect the regularity of the judg- ment. At most, such omission only renders the adjustment irregular and liable to be set aside. Dix v. Palmer, 5 How. 233 ; ENTRY AND NOTICE OP JUDGMENT. 721 Proceedings on adjustment — Docketing. Slimson v. Huggins, 9 id. 86 ; S. C, 16 Baib. 658 ; Hoffnnng v. Grove, 18 Abb. 14 ; S. C. affirmed, id. 142 ; S. C, 42 Barb. 548 ; Petrie v. Fitzgerald, 2 Abb. N. S. 354. It was held, however, in some of the earlier cases that the judgment was made irregular by the omission of notice, and that it might be set aside on mo- tion. See Goldsmith v. Marpe, 2 Code R. 49 ; Bank of Masilon v. B wight, id. 49 ; Dolce v. Peek, 1 Code R. 54 ; Elson v. New York Equitable Ins. Co., 2 Sandf. 654 ; S. C, 2 Code R. 30 ; Gil- martin v. Smith, 4 Sandf. 684 ; Mitchell v. Hall, 7 How. 490. See ante, 553, Costs. Section 3. Proceedings on adjustment. As -to the proceedings on the adjustment or taxation of costs, see ante, 553, where the subject is fully noticed. Section 4. Re-adjustment. On this subject, see ante, 558. AKTICLE XI. DOCKETING. Section 1. When a judgment may be docketed. When the judgment roll has been made up and filed as already described, the judgment may then be docketed (Code, § 282), and this should be done in all cases; for, until docketed, the judgment cannot be enforced by execution, nor does it affect a lien on real property. So far, however, as regards its due record, and its effect independent of the mode of enforcement, the judgment is perfect when entered and signed ; nor is any further proceeding necessary to secure its priority in the administration of an intes- tate' s estate. Harness Case, 4 Abb. 270. A rule of the supreme court prescribes that judgments can only be docketed in the offices of the clerks of the courts, within the hours during which, by law, they are required to keep open their respective offices for the transaction of business, and at no other time. Rule 12. As to what those hours are, see ante, 713. Prior to the amendment of this rule (formerly rule 9), in 1870, it was held that judgments filed and docketed by a clerk out of office hours took effect and became liens equally at the next office hour after such docketing. France v. Hamilton, 26 How. 180. See Wardell v. Mason, 10 Wend. 573; Lemon v. Slaats, 1 Cow. 592. However this may have been under the former rule, it can be of little practical importance at present, as by tfte provisions Vol. III.— 91 722 ENTRY AND NQTICE OF JUDGMENT. Mode of docketing judgment, of the rule as it now stands the docketing can be done ' ' at no other time" than during office hours. Where the judgment di- rects the sale of mortgaged premises and the payment of a defi- ciency, such deficiency cannot be known until after the sale and report thereon, and therefore the docketing of the judgment can- not take place until that time. DeAgreda v. Mantel, 1 Abb. 130; Cobb v. Thornton, 8 How. 66. Section 2. Mode of docketing judgment. The following descrip- tion of the origin of the docket is from an English writer : " The dogget, or as it is commonly called the docket or doquet, is an index to the judgment invented by courts for their own ease and the security of purchasers, to avoid the trouble and inconven- ience of turning over the rolls at large. The practice of docket- ing judgments seems to have obtained as early as the reign of Henry the Eighth, in the court of common pleas, where the dockets are entered on a separate roll, called the docket roll, or common docket, which is of so high an authority as to even warrant an amendment of the judgment itself. But in the king' s bench the docket was originally nothing more than a note on parchment or paper, containing the christian and surname of plaintiff and defendant, the debt and damages recovered, with the term and number of the judgment roll." Tidd's Pr. 939. The mode of docketing judgments under our present practice is thus prescribed by the Revised Statutes : At the time of filing a record of judgment the clerk shall enter in an alphabetical docket, in books to be provided and kept by him, a statement of such judgment, containing :" 1. The names at length of all the parties to such judgment, designating particularly those against whom it is rendered, with their places of abode, titles, trades or professions, if any such are stated in such record ; 2. The amount of the debt, damages, or other sum of money re- covered, with the costs ; 3. The hour and day of entering such docket ; 4. If the judgment be against several persons, such statement shall be repeated under the name of each person against whom the judgment was recovered, in the alphabetical order of their names respectively. 2 R. S. 361 (373), § 13. See Code, §§ 63, 282 ; Sup. Ct. Rules 11, 12 ; Sheridan v. Andrews, 49 N. Y. (4 Sick.) 478; :S.C.,3Lans.l29. The docketing of a judgment in the office of the county clerk, ENTRY AND NOTICE OF JUDGMENT. 723 Docketing transcript. under the provisions of the act of 1840*(see Laws of 1840, ch. 386), is not essential to the conclusiveness of a judgment in an action to recover possession of real property. It is sufficient if such judgment is docketed by the clerk of the court where rendered, as judgments in courts of record are required to be docketed by the provisions of the Revised Statutes as above. Sheridan v. Andrews, 3 Laus. 129 ; S. C. affirmed, 49 N. Y. (4 Sick.) 478. Section 3. Docketing transcript. When judgment is entered in the supreme court in the office of the clerk of the county, the collateral entry in the docket which the clerk must make under the provisions of the Revised Statutes effects a complete docket of it for all purposes, so far as regards that particular county. See 2 Whit. Pr. 508. But, whenever the judgment is entered in a- court of limited or inferior jurisdiction, or whenever, in the supreme court, the judgment is sought to be enforced in any other county besides that in which it has been signed, that judgment must be docketed in every county into which execution is proposed to be issued: And, whenever the judgment debtor holds, or is sup- posed to hold, or to be likely to hold, lands in any county or counties, the judgment should, for the purposes of effecting a lien, be docketed in every such county, whether execution be actually issued or not. Code, § 282. As regards a justice's judgment, however, such lien cannot be enforced as against real estate, where the judgment is for less than $25, exclusive of costs. Code, §63. The mode of docketing a judgment in counties other than that in which it is entered, for the purposes above indicated, is to obtain a transcript, or more than one if necessary, from the clerk of the court in which the judgment is entered ; and such tran- script, or a duplicate original, is then filed in each county in which the judgment is sought to be docketed. On filing such transcript, and upon payment of the fee thereon, the proceeding is complete. The transcript should, properly, be certified by the clerk of the court in person, who is entitled to a fee of six cents for that service, and a similar fee is likewise payable to the clerk of each county in which the judgment is docketed. See Laws of 1840, ch. 386, § 5 ; 2 R. S. 638 (659). A deputy clerk has authority, however, in the absence of the clerk, to certify a copy of the docket of a judgment, and the cer- tificate is good, even though it does not show on its face the 724 ENTRY AND NOTICE OF JUDGMENT. Effect of docketing judgment — Amending docket. absence of the clerk. Iii such case the law will presume that the clerk was absent or incapable of attending to the duties of his office, and that the document has been duly issued. Miller v. Lewis, 4 N. Y. (4 Comst.) 554. The transcript of a justice's judgment must, in the first instance, be filed and docketed in the office of the clerk of the county in which the judgment was rendered ; and by this opera- tion the judgment becomes a judgment of the county court. Code, § 63. Transcripts, for the purpose of enforcement in other counties, may then be obtained from the county clerk in the usual manner. lb. See Code, §§ 64, 68. Upon filing a transcript with the county clerk, a judgment of a justice of the peace must be docketed in the same manner as a judgment of a court Of record ; and if the county clerk fails to docket the judgment properly, and it is shown that there has been an absolute loss of the judgment through his neglect, he will be liable for the loss. Blossom v. Barry, 1 Lans. 190. A transcript of the docket in the office of a county clerk, of a judgment purporting to have been rendered by a justice of the peace, with a certified copy of the transcript of the justice, are prima facie evidence of the judgment, but not conclusive. It is competent to prove by the testimony and docket of the jus- tice that no such judgment has in fact been rendered. Stephens v. Santee, 49 N. Y. (4 Sick.) 35 ; reversing S. C, 51 Barb. 532. See Christopher v. Van Liew, 57 Barb. 17 ; Fisk v. Emerson, 44 N. Y. (5 Hand) 376 ; DicMnson v. Smith, 25 Barb. 102. Section 4. Effect of docketing judgment. The effect of docket- ing a judgment is to make it a lien on the real property in the county where it is docketed, of every person against whom the judgment is rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where the roll was filed. Code, § 282. A judgment lien can be created, however, only by a judgment directing, in whole or in part, the payment of money. That is, the judgment is a lien only to the extent of the money adjudged to be paid. See Be Agreda v. Mantel, 1 Abb. 130. See this sub- ject fully treated, post, Chapter XI, under "Lien of judgments." Section 5. Amending docket. The statute relating to the dock- eting of judgments by transcript (see Laws 1840, ch. 386) is ENTRY AND NOTICE OF JUDGMENT. 725 Notice of judgment. directory merely ; and an error in the statement of date, amount, etc., which does not actually prejudice dona fide purchasers, is to be. disregarded {Fish v. Emerson, 44 N. Y. [5 Hand] 376 ; Sears v. Burnham, 17 N. Y. [3 Smith] 445 ; affirming S. O, 2 Bradf. 394) ; and the docketing will be amended nunc pro tunc, on motion, except as against such persons actually prejudiced. Sunt v. Grant, 19 Wend. 90 ; Chichester v. Cande, 3 Cow. 42, note. Where a ^dgment was docketed correctly in all respects but the initial of the middle name, and the docket was afterward corrected, on motion, it was held that the judgment took priority as a lien from the original docketing, as against a subsequent judgment obtained before the correction. Oeller v. Hoyt, 7 How. 265. See Aylesworth v. Brown, 10 Barb. 167. ARTICLE Xn. NOTICE OF JUDGMENT. Section 1. Notice, when and why giyen. The object of a notice of judgment is to limit the time within which to appeal (Code, § 332), or to except, when judgment is entered upon the decision of the court or referees (Code, §§ 268, 272) ; and unless such notice is given, the time to appeal continues without limitation. Fry v. Bennett, 7 Abb. 352 ; S. C, 16 How. 402 ; affirmed, 26 id. 599 (n). As regards this point a strict compliance with the rules of practice is required {Tories v. Peck, 17 How. 192); and, although a party have full knowledge of a judgment or order, his time for appealing is not limited, unless he has been actually served with notice. See Leavy v. Roberts, 2 Hilt. 285 ; S. O, 8 Abb. 310 ; affirmed, 27 How. 599 {n) ; People v. Spalding, 9 Paige, 607 ; Gay v. Gay, 10 id. 370 ; Fry v. Bennett, 7 Abb. 352 ; S. C, 16 How. 402 ; affirmed, 26 id. 599 {n). The notice should be given as soon as the judgment is entered, but not sooner ; and the entry should be completed by the filing of the judgment roll before giving such notice. Sherman v. Wells, 14 How. 522 ; Sherman v. Postley, 45 Barb. 348. Until the amount of the judgment is definitely settled, and the costs are adjusted, no notice of the entry of judgment can be given which will limit the time to appeal (lb. ; Champion v. Plymouth Congregational Society, 43 Barb. 441) ; and it may be 726 ENTRY AND NOTICE OF JUDGMENT. Form of notice. said, generally, that, in all cases, notice limiting the time within which to appeal cannot be given while the judgment is so incom- plete that an appeal must be dismissed, on motion of the adverse party. Sherman v. Postley, 45 Barb. 348. An order made out of court, upon notice, must be entered with the clerk before the notice thereof will begin to limit the time for appealing. Oallt v. Finch, 24 How. 193. In computing the time within which to appeal, from the date of the entry of the order or judgment, the first day is excluded by section 407 of the Code ; so that an order entered May 27th was appealed from in time by serving notice of appeal on the 27th of June. lb. Section 2. Form of notice. Care should be taken to see that the notice comprises all the particulars necessary to furnish the opposite party with fall and accurate information as to the nature of the judgment. It should be written, and nothing short of a written notice will limit the time to appeal. See Rankin v. Pine, 4 Abb. 309 ; Staring v. Jones, 13 How. 423 ; Fry v. Ben- nett, 16 id. 402 ; S. C, 7 Abb. 352 ; affirmed 26 How. 599 (n). So, the notice must be signed by the regular attorney of record, mentioning his place of business, or it is a nullity. Tories v. Peck, 17 How. 192. And an omission to state the clerk's office in which the judgment is entered will be a fatal defect, and an amendment will not be granted but the party will be left to give notice anew. Yalton v. National Loan Fund Life Assurance Society, 19 How. 515. As it seems that the substance of the judgment should be em- bodied in the notice (see Fry v. Bennett, 16 How. 285 ; S. O, 7 Abb. 352), it would follow, as the better practice, to annex a lit- eral copy of the judgment to, or insert it in, the notice. See 2 Till. & Shear. 715. A mere copy of the judgment properly certified by the clerk has been held a sufficient notice of its entry to limit the right of appeal. See lb.; Mason v. Jones, 1 Code R. N. S. 335. When judgment is entered upon the report of a referee, a copy of the report is required to be served with the notice of the judg- ment, and the time within which exceptions may be' taken to the report must be computed from the time of the service of such notice. Sup. Ct. Rule 39. ENTEY AND NOTICE OP JUDGMENT. 727 By whom and to whom given — Secured on appeal. Form of notice of judgment to limit time for appeal. {Title of cause.) Sir : Please take notice, that a judgment in this action for dollars damages and costs, in favor of the above-named plaintiff and against the above-named defendant, was entered in the office of the clerk (of this court in) the county of , on the day of , 18 . {Date.) {Signature.) {Address.) Section 3. By whom and to whom given. The notice of judg- ment should proceed from the prevailing party and be served upon the opposite party, and a notice proceeding from any other person than the attorney of record for the prevailing party, or served upon an attorney who has appeared for a party without authority, does not effect a limitation of the time within which to appeal. See Fry v. Bennett, 16 How. 285 ; S. O, 7 Abb. 352 ; Bates v. Voorhees, 20 N. T. (6 Smith) 525, 529. ARTICLE XIII. SECURED Olf APPEAL. Section 1. Lien of judgment, how suspended pending an appeal. The Code provides that "whenever an appeal from the judgment shall be pending, and the undertaking requisite to stay execu- tion on such judgment shall have been given, the court in which such judgment was recovered may, on special motion, after notice to the person owning such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order, exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment that the same is 'secured on appeal,' except that in case only a specific portion of such property is exempted from such lien such order shall direct an entry to be made on such docket that the same is ' secured on appeal as per order of the court, dated ,' specifying the date of such order; and thereupon such judgment shall cease, during the pendency of such appeal, to be a lien upon the property so exempted as against purchasers and mortgagees in good faith." Code, § 282. 728 ENTRY AND NOTICE OF JUDGMENT. Proceedings to obtain suspension of lien. Section 2. Proceedings to obtain suspension of lien. The mode of proceeding to obtain the suspension of the judgment lien as above is prescribed in the terms of the Code in the section just cited, and must be "on special motion, after notice to the person owning such judgment, or to his attorney, and to the sureties to the undertaking." Sec. 282. Previous to a recent amendment of this section of the Code, it was a question whether, upon the application, the sureties should have notice ; some cases holding that such notice was unnecessary {Livingston v. Roberts, 5 Duer, 680 ; S. C, 3 Abb. 231 ; Burr all v. Vanderbilt, 6 Abb. 70 ; S. C, 1 Bosw. 637), while others held that the court might very prop- erly require such notice to be given before proceeding with the motion. Munn v. Barnum, 2 Abb. 409. See Burrall v. Van- derbilt, 6 Abb. 70 ; S. C, 1 Bosw. 637. The question is no longer an open one, as the above section of the Code, as amended, expressly requires notice to be given to the sureties. Section 3. When motion will be granted. The granting or refusing of the application reposes wholly in the discretion of the court, and the power to grant it should be carefully exer- cised. Orchard v. Binninger, 4 Abb. N. S. 368 : Fitch v. Liv- ingston, 4 Sandf. 712 ; Livingston v. Roberts, 5 Duer, 680 ; S. C, 3 Abb. 231. It is likewise in the discretion of the court to im- pose terms on granting the application, and the terms may be such as the court deems fit. See Code, § 282 ; Munn v. Barnum, 2 Abb. 409 ; Bergen v. Stewart, 28 How. 6. The motion cannot be maintained unless full security has been given, sufficient to stay execution as well as to perfect the appeal. HoppocTc v. Cottrell, 13 How. 461. Section 4. Proceedings on order. The direction of the court, when obtained, should be reduced to the form of an order and regularly entered. When the entry by the clerk on the docket is to be made in the county of venue, the order will, of itself, be sufficient authority to the clerk to make it ; but if the judgment be docketed in other counties, it will be requisite to obtain and forward certified copies to each county clerk for the same pur- pose. See 2 Whit. Pr. 513. It will, of course, be proper for the party obtaining the order to see, for his own protection, that the entries are duly made. CHAPTER X. AMENDING OR VACATING JUDGMENTS. ARTICLE I. AMENDING OR COBEECTING. Section 1. What errors may be amended. Errors in a judg- ment which may be amended or corrected under the powers con- ferred for this purpose by sections 173 and 174 of the Code, do not include judicial errors in rendering judgment. Hotaling v. Marsh, 14 Abb. 161 ; Lillie v. Sherman, 39 How. 287. Such errors are to be corrected in another manner. lb. To entitle a party to an amendment of a judgment within the above sections of the Code, he must establish that the judgment does not conform to the verdict, decision or report on which it is founded. Ingersoll v. Boslwick, 22 N. Y. (8 Smith) 425; Johnson v. Carnley, 10 N. Y. (6 Seld.) 570. And it has been said that alterations cannot be made in the actual adjudi- cation, even though directions may have been omitted which would have been inserted if they had been originally asked for. Barnard v. Bruce, 21 How. 360 ; New YorTc Ice Go. v. Northwestern Ins. Co., 20 id. 255; S. C, 11 Abb. 419; 32 Barb. 534. See Same v. Same, 23 N. Y. (9 Smith) 357; S. C, 12 Abb. 414; 21 How. 296, in which the above doctrine is disapproved, and the general authority of the court to grant an amendment in all cases, when in furtherance of justice, asserted. See Montgomery v. Bills, 6 How. 326, which holds that a party who has a judgment in his favor may, on applica- tion to the court, under section 174 of the Code, have relief in the same manner as though the judgment were against him. In case of any mistake or miscalculation {Rogers v. Hosack, 18 Wend. 319), or if there be errors in the recital of the judgment, it is properly amendable on motion. Chemung Canal Bank v. Judson, 8 N. Y. (4 Seld.) 254. So the remedy by motion is the proper one in every case, where the error is one of form arising out of a failure to conform to the settled rules of practice of the court. Libby v. Rosekrans, 55 Barb. 202. Vol. III. — 92 730 AMENDING OR VACATING JUDGMENTS. Amendments, how made — Vacating — Void judgments. Section 2. Amendments, how made. The amendment, when granted, is to be made effectual by means of the order, which should contain special provisions on the subject, and that order should be appended to the judgment record. It is not proper to make an actual obliteration of the record, or an erasure of such parts of it as are deemed erroneous or intended to be amended. The passages stricken out may, however, be marked by brackets or lines of distinction, and an entry made in the margin referring to the order ; or the judgment itself, if amended, may be entered at length, if the party so desire. Sluyter v. Smith, 2 Bosw. 673. An amendment of the judgment record and the execution, made by order of the court, upon an ex parte application, after a sale of property by the sheriff, by substituting the true name of the defendant for the name erroneously inserted, will not have the effect to render the sale valid, or to divest the defendant of the title to the property levied on, and transfer it to the pur- chaser. Farnham v. Hildreth, 32 Barb. 277. See Abeel v. Con- hyser, 42 How. 252 ; Moulton v. de MaUarty, 6 Rob. 470. ARTICLE II. VACATING. Section 1. What judgments may he vacated. a. As a right and as a favor. Yacating a judgment as a matter of favor, has been fully treated of in the general subject of judgment by default. See opening default, ante, 665. Vacat- ing judgments as a matter of right will form the subject of the present section. b. Void judgments. A judgment which is void, may be set aside on motion ; and the statute limitation which forbids the setting aside of judgments for irregularity after one year (2 R. S. 359 [371] ; Code, § 174), does not apply in such case. On the other hand, the motion to set aside a void judgment, is not barred by lapse of time however extended. Hallett v. Righters, 13 How. 43 ; Chappel v. Ohappel, 12 N. Y. (2 Kern.) 215 ; Borsdorff v. Dayton, 17 Abb. 36, n ; Moulton v. de ma Carty, 6 Rob. 470. Nor need the moving party show that he may sustain actual injury. It is sufficient that the judgment is unauthorized, to justify the application to set it aside. Lambert v. Converse, 22 How. 265. See Or ant v. Van DercooTc, 8 Abb. N. S. 455 ; S. C, 57 AMENDING OR VACATING JUDGMENTS. 731 Vacating — Fraudulent judgments. Barb. 165, 175. But it is only where a judgment is void that a party has an absolute legal right to have it set aside or vacated upon motion. If the court has acquired jurisdiction of the sub- ject-matter of any action or proceeding it has jurisdiction to enter judgment, and if any error is committed the judgment is void- able, not void, and the remedy of the party aggrieved is by appeal. Schaettler v. Gardiner, 47 N. Y. (2 Sick.) 404 ; Foote v. Lathrop, 41 N. Y. (2 Hand) 358. A judgment in proceedings to foreclose a lien under the mechanics' lien law (see laws 1854, chap. 402), recovered after the expiration of one year from the time of the creation of the lien is unauthorized and void, and will be vacated on motion. Laws 1854, chap. 402. See Huxford v. Bogardus, 40 How. 94 ; but see Schaettler v. Gardiner, 47 N. Y. (2 Sick.) 404. c. Fraudulent judgments. Every court of record, unless restrained by positive enactment, has the power to vacate its judgments when it is established that they were obtained by fraud {People v. The Mayor, etc., 19 How. 289 ; Lowber v. The Mayor, 26 Barb. 262 ; 5 Abb. 484; 15 How. 123 ; Benton v. Benton, 41 id. 221), but this power should not be exercised, except in a clear case ; one that is free from any reasonable doubt. Frink v. Morrison, 13 Abb. 80 ; Hill v. Northrop, 9 How. 525. A judgment obtained by connivance between, the parties, or by some of them, will be vacated as fraudulent on motion of any one prejudiced thereby {Cleveland v. Porter, 10 Abb. 407 ; Boss v. Bridge, 24 How. 163 ; S. C, 15 Abb. 150) ; and the same is true where the judgment is entered as the result of collusion between the parties recovering judgment and the attorney for the adverse party. People v. Mayor, etc., of New York, 19 How. 289. So it has been held that a judgment entered in consequence of stipulations made by the attorney for the unsuccessful party without authority, may be vacated on motion of an injured party. People v. Mayor, etc., of New York, 11 Abb. 66. See Ellsworth v. Campbell, 31 Barb, 134 ; Brown v. Nichols, 42 N. Y. (3 Hand) 26. Application to set aside a fraudulent judgment must be made within a reasonable time ; otherwise it will be denied. Corwithe v. Griffing, 21 Barb. 9 ; Boyd v. VanderJcemp, 1 Barb. Ch. 273. But in judging of the delay, time will be reckoned from the period at which the fraud was discovered. 732 AMENDING OR VACATING JUDGMENTS. Irregular and unauthorized judgments — In actions commenced by publications. d. Irregular judgments. The Revised Statutes provide that " no judgment in any court of record shall be set aside for irreg- gularity on motion unless such motion be made within one year after the time such judgment was rendered." 2 R. S. 359 (371). See Code, § 174; Park v. Church, 5 How. 381 ; 1 Code R. N. S. 47. And a motion noticed within the year for a day after the year was held to be barred. Cook v. Dickerson, 1 Duer, 679. The general rule is, that where a party seeks to set aside a judgment for irregularity he must make his motion at the first opportunity after the irregularity has taken place, and the attor- ney must show due diligence in informing himself of it. Cagger v. Gardner, 1 How. 142. See Grah. Pr. 702. Delay in moving may, however, be excused if accounted for satisfactorily. Lewis v. Jones, 13 Abb. 427. A motion to set aside a judgment for irregularity will always be sustainable, whether the irregularity has taken place in the entry of judgment or in the proceedings leading to that entry. If the irregularity is clearly apparent the judgment will be set aside on motion duly made, without taking into consideration whether or not the party moving has merits in the action. How- ell v. Denniston, 3 Cai. 96 ; Perine v. Blackford, 2 How. 131 ; Hughes v. Wood, 5 Duer, 603 (n). But a judgment will not be vacated as irregular by reason of any default or negligence which works no prejudice to the moving party. Bascom v. Feazler, 2 How. 16 ; 2 R. S. 425 (443). A judgment will not be set aside as irregular on motion on account of the erroneous rulings of a judge in the progress of a trial. The proper remedy for such errors is a case or bill of ex- ceptions. Craig v. Panning, 6 How. 336; Fisher v. Hepburn, 48 N. Y. (3 Sick.) 41. e. Unauthorized judgments. A judgment will be vacated on motion where it has been entered without authority of law, even though more than a year has elapsed since its entry {Borsdorff V. Dayton, 17 Abb. 36 (n) ; Simonson v. Blake, 20 How. 484 ; S. C, 12 Abb. 331 ; Grant v. Vandercook, 57 Barb. 165, 175 ; S. C, 8 Abb. N. S. 455), and this is the only remedy for such errors. They are not reviewable on appeal. lb. ; Ingersoll v. Bostwick, 22 N. Y. (8 Smith) 425. /. In actions commenced by publication. The Code provides that, except in an action for divorce, the defendant, against whom publication is ordered, or his representatives, may, upon AMENDING OR VACATING JUDGMENTS. 733 Proceedings to obtain order — Who may and when to move. good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just ; and if the defense be successful, and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs ; but the title to property sold under such judgment to a purchaser, in good faith, shall not be thereby affected. Code, § 135. A judgment taken upon a service void for want of jurisdiction must be opened at any time {Titus v. Rely 6a, 16 How. 371 ; S. C.j 8 Abb. 177) ; and this is so, even in an action for divorce, and where the plaintiff has married again since judgment was recovered. Wortman v. Wortman, 17 Abb. 66. See ante, 667. Section 2. Proceedings to obtain order. a. Who may move. A motion to vacate a judgment on the ground of irregularity can only be made by a party to the judg- ment, and cannot be made by a stranger to the record. Murray v. Judson, 9 N. Y. (5 Seld.) 73. See Freeman v. Auld, 44 N. Y. (5 Hand.) 50. But when a judgment is fraudulent' or is invalid by reason of some substantial defect, it will be set aside on the application of any party interested in impeaching it. Chappel v. Chappel, 12 N. Y. (2 Kern.) 215 ; Bridenbecker v. Mason, 16 How. 203. And it is held that sureties may be let in to defend on the merits in the place of their principal in an action against him, even after a regular judgment, where it is necessary for their pro- tection, on suitable application and excusing laches. Jewett v. Crane, 35 Barb. 208 ; S. C, 13 Abb. 97. A party who has appeared and litigated an action cannot move to set aside the judgment therein, upon the ground that such an action cannot be maintained. Fisher v. Hepburn, 48 N. Y. (3 Sick.) 41. b. When to move. See preceding section, d. The general rule is, that a motion to set aside a judgment on the ground of a mere irregularity, must be made within one year from the entry of such judgment. See Bederick v. Richley, 19 Wend. 108 ; Cook v. Dicker son, 1 Duer, 679 ; Van Benthuysen v. Lyle, 8 How. 312 ; Whitehead v. Pecare, 9 id. 35 ; Park v. Church, 5 id. 381 ; S. C, 1 Code R. N. S. 47; Moulton v. de ma Carty, 6 Rob. 470; Code, § 174 ; 2 R. S. 359. § 2. And it should be made promptly, as 734 AMENDING OR VACATING JUDGMENTS. Where to move — On what papers. constant and repeated laches will often bar the motion to set aside for irregularity. Martin v. Lott, 4 Abb. 365. A motion to set aside a void judgment is not, however, barred by lapse of time. Bonnell v. Henry, 13 How. 142 ; Hallett v. Righlers, 13 id. 43 ; Moulton v. de ma Carty, 6 Rob. 470. c. Where to move. As a general rule, the application to set aside a judgment must be made at special term ; and this is so even when the judgment was entered at general term, where the point in which the irregularity was involved was not before that branch of the court. De Agreda v. Mantel, 1 Abb. 130 ; Ayres v. Cavill, 9 How. 573. The rule has been stated to be, that in all cases of irregularity merely, or to open a default, and in every case where the court at general term do not pass upon any portion of the merits, the motion is properly made at special term. Corning v. Powers, 9 How. 54. But the rule is otherwise, where the question is one affecting the judgment given at the general term. In such case the application should be made only at general term. lb. See Ayres v. Comll, 9 How. 573. It would seem that the motion to set aside should be made in the district where the venue is laid. See Gould v. Torrance, 19 How. 560. d. On what papers. The application to set aside a judgment for irregularity must be made by motion, on the ordinary notice. The motion is made upon affidavits, which must clearly substan- tiate the irregularities complained of, and such irregularities must also be specified upon the face of the notice. Sup. Cfc Rule, 46 ; Selover v. Forbes, 22 How. 477. See Hicks v. Bren- nan, 10 Abb. 304. Any collateral facts tending to show irregu- larity, or a failure to acquire jurisdiction, may also be shown on the face of the moving affidavits. See FisTce v. Anderson, 12 Abb. 8 ; S. C, 33 Barb. 71. If the application is to set aside a judgment obtained by default, the usual affidavit of merits should be made, or its sub- stance should be incorporated in the moving papers. Hunter v. Lester, 10 Abb. 260 ; S. C, 18 How. 347. Application to vacate a judgment, where the service of the summons was by publication, must also be made on motion, on the usual notice, founded on affidavit. The affidavit should show on its face the following requisites or facts : 1. The date of entry of judgment, and the nature of the action. AMENDING OR VACATING JUDGMENTS. 735 Stay of proceedings — Proceedings on order. 2. Unless apparent on the previous statement that such mUst be the case, it must be shown affirmatively that notice of the judgment has not been received by the applicant until within one year previous to the application, and the actual date and mode of receipt of such notice may be stated. 3. The face of the affidavit must show good cause why the applicant should be permitted to defend. In all cases, the usual affidavit of merits should be incorporated or annexed ; and, in addition to this, the existence and nature of the defense pro- posed to be put in sho\ild be shown by distinct and definite alle- gation. 2 Whit. Pr. 590. The affidavit, prepared in this manner, should be sworn to by the actual applicant whenever practicable ; or, if not, then by his attorney or agent, stating fully the reasons why it cannot be made by the former. lb. e. Stay of proceedings. Ordinarily a stay of proceedings is desirable, and when such is the case a collateral order may be obtained, or the question may be brought up by order to show cause, including the stay required, if such an order can be pro- cured. Good faith must, however, be observed in obtaining the order for the stay of proceedings, and the party moving will not be allowed to take advantage of it for his own purposes. An assignment made under such circumstances was declared to be void; Jaques v. Greenwood, 12 Abb. 232. Section 3. Proceedings on order. a Form of order. For form of order, see, ante, 670. Being drawn up, the order should be entered and served in the usual manner. Special directions should be inserted in it to the clerk of the court, and to the clerks of any counties in which the judg- ment has been docketed, directing them to make the necessary entries in the judgment books, for the purpose of discharging the lien as regards real property, and also to the sheriff or sheriffs, if execution has been issued, prescribing the discharge of any levy, if made, and the suspension of further proceedings on such executions. See 2 Whit. Pr. 579. Care should be taken, by the prevailing party, to see that such entries are made by the clerk. He should also procure, and for- ward to the clerk of every county in which the judgment has been docketed, a transcript showing the vacatur, in order to the mak- ing of similar entries, so as to discharge the lien wherever it exists. If execution has been issued, a certified copy of the 736 AMENDING OR VACATING JUDGMENTS. Terms — Hestitution — Motion in arrest of. order must be served upon the sheriff, or sheriffs, as the case may be. See 2 Whit. Pr. 579. b. Terms. On granting the application to set aside a judgment where the service was by publication, the court is expressly au- thorized to impose such terms as may be just (Code, § 135), and a condition that may be reasonably asked for is, that the judg- ment and any consequent proceedings be allowed to stand as security. See Oarswell v. Neville, 12 How. 445. If the defend- ant is a non-resident, security for costs may of course be re- quired. c. Restitution. In such case, if the defense prove successful, the Code provides for restitution (§ 153), and by rule 34 of the supreme court the plaintiff is required, at the time of making the application for judgment, to produce and file with the clerk an undertaking for not less than the amount of the judgment, with two sureties to be approved by the court, that he will abide the order of the court touching the restitution of any estate or effect which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be col- lected under or by virtue of such judgment, in case the defend- ant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. ARTICLE III. MOTION IN ARREST OF. Section 1. When proper. a. Judgment. As has been already stated, an arrest of judg- ment might have been obtained, under the former practice, upon application to the court, for any matter intrinsic, appearing upon the face of the record, amounting to a defect not amendable or aided at common law or by statute, and for which a writ of error would lie. As to the existence of this remedy under the Code, see ante, p. 566, § 8. CHAPTER XI. LIEN OP JUDGMENTS. ARTICLE I. WHAT JUDGMENTS MAT BE A LIEN. Section 1. Must direct payment of money. The only judgment which, can operate to create a lien is one which directs in whole or in part the payment of money. Code, § 282. It is not neces- sary, however, that the judgment should be solely for the pay- ment of money, but if it is not it operates as a lien only to the extent of the money adjudged to be paid. DeAgreda v. Mantel, 1 Abb. 130. So in order that a judgment may be made a lien, it is necessary that the amount due under it be judicially ascertained, and until this is done no lien exists. lb. ARTICLE II. LIEN, HOW SECURED. Section 1. Docketing necessary. The provisions of the Code as to the lien of judgments are substantially the same as those of the Revised Statutes, and such lien can be secured only by dock- eting the judgment in conformity with the provisions of the statute. See 2 R. S. 360 (373) ; Blydenburgh v. Northrop, 13 How. 289. Under these provisions it was held that there was no lien created by the recovery of a judgment until it was docketed, and therefore no question of notice or contest as to priority could arise between a creditor holding a judgment not docketed and a party having any specific lien by mortgage, or any conveyance of title. The date and order of the lien of a judgment was, in all cases, merely a question of time, depending upon the day and hour when it was docketed, as required by the statute, and thus acquired the rights which the statute gave. Buchan v. Sumner, 2 Barb. Ch. 165, 193. And all the reasoning of this case is held to be appli- cable to judgments under the Code. Blydenburgh v. Northrop, 13 How. 289. Vol. III.— 93 738 LIEN OF JUDGMENTS. The lien. On a judgment by confession under the Code, there is no suit, no recovery or adjudication, either actual or formal, of any court or officer, until the judgment is entered by the clerk ; and it is the act of this officer that creates not only the lien, but the judg- ment. Until such entry is made, there is no judgment, and nothing of its existence of which notice can be given to subse- quent incumbrancers or grantees. Blydenburgh v. Northrop, 13 How. 289. Judgments and decrees, rendered in the United States courts, duly recorded, need not be docketed in the several counties of the district. They are, however, a lien upon all the real estate of the judgment debtor, located within the district; and in this respect the lien of a United States judgment takes effect differ- ently from a State judgment. See Orandell v. Cropsey, 10 N. Y. Leg. Obs. 1 ; Lombard v. Bayard, Wall, Jr., 196 ; 7 Penn. Law Jour. 250. ARTICLE III. THE LIEU. Section 1. Extent of. The lien of a judgment extends to all the real property including lands, tenements and hereditaments (Code, § 462 ; Rodgers v. Bonner, 45 N. Y. [6 Hand] 379) in the county where the judgment is docketed, of every person against whom it is rendered, or which he may acquire in such county at any time thereafter, for ten years from the time of docketing it in the county where it was rendered. Code, § 282. This lien does not, however, extend to future estates in expec- tancy {Jackson v. Middleton, 52 Barb. 9) ; nor does it attach upon the mere legal title to lands existing in the defendant, where the equitable title is in another person. Lounsbury v. Purdy, 18 N. Y. (4 Smith) 515 ; affirming S. C, 46 Barb. 376 ; 11 id. 490. So judgments do not become liens on leasehold property, unless the lessee (the judgment debtor) is in possession ; and if the lessee transfers his lease to another party, without taking possession of the premises, the lien of the judgment never attaches. Crane v. O'Connor, 4 Ed. Ch. R. 409. But if the lessee is in posses- sion, leasehold estates, even from year to year, are bound by a judgment lien. See Bigelow v. Finch, 17 Barb. 394 ; Eoertson, v. Sawyer, 2 Wend. 507. And it is held, that improvements made upon land by a purchaser of the premises or of a lessee LIEN OP JUDGMENTS. 739 Priority and duration of. thereof, are subject to the lien of a judgment which was a lien upon the land at the time of the purchase, even though the pur- chaser had no knowledge of such judgment. OooTc v. Kraft, 3 Lans. 512. The interest of any person holding a contract for the purchase of lands, is not bound by the docketing of any judgment against him (1 R. S. 744 [696] ), and this provision is held to be appli- cable whether he has fully paid for the land or not. Orosvenor v. Allen, 9 Paige, 74. If land is sold under the first judgment, the lien of subsequent judgments is on the surplus in the order of their priority. Averill v. Loucks, 6 Barb. 470. Section 2. Priority of. When duly docketed, judgments rank according to their legal priorities {Stevens v. Bank of Central New York, 31 Barb. 290 ; Bodgersv. Bonner, 45 N. Y. [6 Hand.] 379), and the date and order of the lien is, in all cases, a question of time, depending upon the day and hour when the judgment was docketed. Blydenburgh v. Northrop, 13 How. 289. A judgment creditor who advances his money upon the faith of an unincumbered title upon the record, without notice, is en- titled to the lien acquired thereby in preference to the secret, unrecorded lien of the vendor, for a part of the purchase-money. Such a judgment creditor is to be regarded as a quasi purchaser for a valuable consideration without notice. Hulett v. Whipple, 58 Barb. 224. It has been held that all judgments filed and docketed by a clerk out of office hours must take effect and become liens equally at the next office hour after such docketing, although some may have been entered before others. War dell v. Mason, 10 Wend. 573 ; France v. Hamilton, 26 How. 180. These decisions were made, however, prior to the recent amendment of the rules of the supreme court, by the 12th of which it is provided that judgments must be docketed with the clerks during their hours of business, and at no other time. See, ante, 713. Section 3. Duration of. The lien of a judgment ceases as against purchasers in good faith and subsequent incumbrancers at the end of ten years from the time of docketing, whether with or without notice, unless they were actually guilty of fraud. See Pettit v. Shepherd, 5 Paige, 493 ; Wood v. Morehouse, 45 N. Y. (6 Hand.) 368, 377 ; Tufts v. Tufts, 18 Wend. 621 ; Little v. Harvey, 9 id. 157. But as against the judgment debtor himself and his heirs 740 LIEN OP JUDGMENTS. Suspension of. ( Waltermire v. Westover, 14 N. Y. (4 Kern.) 16 ; Peru Iron Go: ' s Case, 7 Cow. 554 ; Scott v. Howard, 3 Barb. 319), or his grantees without a valuable consideration (MohawJc Bank v. Atwater, 2 Paige, 54 ; Mower v. Kip, 2 Edw. Ch. 165), such lien continues for the full period of twenty years, as prescribed by the Code, section 90. So where the grantee of a judgment debtor colludes with him to defraud the creditor, the lien remains in full force for twenty years at least. Pettit v. Shepherd, 5 Paige, 493. Where the lien of a judgment has ceased by lapse of time, the court will interfere in a summary way in behalf of bona fide purchasers, and order a perpetual stay of execution unless the judgment creditor shall satisfy the court that there is probable cause for alleging that the purchase was not bona fide. The mere allegation of the creditor that he thinks he can prove that they are not bona fide purchasers is not sufficient. Wilson v. Smith, 2 Code E. 18. It is provided, by the Code, that the time during which the party recovering or owning a judgment shall be, or shall have been, restrained from proceeding thereon by any order of injunc- tion or other order, or by the operation of any appeal, shall con- stitute no part of the ten years from the time of docketing, as against the defendant in such judgment or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor, or mortgagee in good faith. § 282. ARTICLE IV. SUSPENSION" OF. Section 1. On appeal. See, ante, Chapter IX, Article 13, page 727. The manner in which the lien of the judgment is sus- pended, on appeal, is thus prescribed by section 282 of the Code : "Whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, the court in which such judgment was recovered may, on special motion, after notice to the person owning such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order, exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a, specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment, that LIEN OP JUDGMENTS. 741 Imprisonment of debtor — Extinction of lien. the same is 'secured on appeal,' except that, in case only a spe- cific portion of such property is exempted from such lien, such order shall direct an entry to be made on such docket that the same is ' secured on appeal as per order of the court, dated ,' specifying the date of such order ; and thereupon such judg- ment shall cease, during the pendency of such appeal, to be a lien upon the property so exempted as against purchasers and mortgagees in good faith." Section 2. Imprisonment of debtor. The lien of a judgment is suspended by an actual imprisonment of the debtor on execu- tion under the judgment. Jackson v. Benedict, 13 Johns. 533. See Bank of Beloitv. Beale, 20 How. 331 ; S. C, 11 Abb. 375; 7 Bosw. 611 ; S. C. affirmed, 34 N. Y. (7 Tiff.) 473. But if the debtor escapes, or is discharged under a statute, the lien revives. See Jackson v. Benedict, 13 Johns. 533 ; W Guinty v. Herrick, 5 Wend. 240 ; Chapman v. Hatt, 11 id. 41. "Where a judgment has been vacated, and afterward the decis- ion is reversed and the order vacating the judgment is set aside, the lien of the judgment is restored, except as to intervening pur- chasers or incumbrancers in good faith. King v. Harris, 30 Barb. 471 ; S. C. affirmed, 34 N. Y. (7 Tiff.) 330. So, where an entry of satisfaction is vacated by the court, it will be without preju- dice to rights acquired by third persons in good faith and for value ; and this is especially so where the error is occasioned by the creditor's own act. Bebee v. Bank of New York, 1 Johns. 529 ; Taylor v. Banney, 4 Hill, 619. See Booth, v. Farmers and Mechanics' National Bank, 50 N. Y. (5 Sick.) 396; reversing S. C, 4 Lans. 301. The lien of a judgment is not affected by the suffering of an execution against personal property, to lie dormant in the sheriff's hands. Muir v. Leitch, 7 Barb. 341. Nor is it in any way affected by an agreement to postpone payment of the judg- ment, lb. ARTICLE V. * EXTINCTION" OF LIEN. Section 1. Lien, how extinguished. a. Satisfaction of Judgment. The satisfaction of a judgment, by payment, in whole or in part, will, of course, release the lien to the extent of the payment ; and it cannot be restored as a lien by any subsequent agreement between the parties. Be la Vergne v. 742 LIEN OF JUDGMENTS. Satisfaction of judgment — Levy and Bale. Evertson, 1 Paige, 181 ; Troup v. Wood, 4 Johns. Ch. 228, 247. See Winslow v. Clark, 2 Lans. 377, 380. But an agreement to dis- charge any portion, in excess of the payment, is a contract invalid for want of consideration, and cannot, therefore, extinguish the entire judgment. Garvey v. Jarvis, 54 Barb. 179 ; S. C. affirmed, 46 N. Y. (1 Sick.) 310 ; Deland v. Hiett, 27 Cal. 611. A satisfac- tion under seal is, however, good, though full payment were not made. Beers v. Hendrickson, 6 Rob. 53 ; 45 N. Y. (6 Hand) 665. If the amount of the judgment be paid by one who is not a party and not liable thereon, the judgment will be extinguished or not, according to the desire of the person paying. Alden v. Clark, 11 How. 209 ; Harbeck v. Vanderbilt, 20 N. Y. (6 Smith) 395. But where one of several defendants, jointly liable under the judgment, pays to the other party the entire sum, the judg- ment becomes thereby extinguished, whatever may be the inten- tion of the parties to the transaction. lb. ; Ontario Bank v. Walker, 1 Hill, 653 ; Bank of Salina v. Abbot, 3 Denio, 181. An attorney at law has no authority, by virtue of his general retainer, to satisfy a judgment without payment of the full amount in money ; and, if he compromises by taking less than the entire sum due, or by receiving any thing else than money, the plaintiff is not bound by the compromise {Beers v. Hen- drickson, 6 Rob. 53 ; 45 N. Y. (6 Hand) 665 ; Lewis v. Woodruff, 15 How. 539 ; Jackson v. Bartlett, 8 Johns.* 361), but it will bind the attorney in person. Carstens v. Barnslorf, 11 Abb. N. S. 442. In cases where the law authorizes the sheriff, or any other officer, to accept payments of judgments, his authority is as limited as that of an attorney acting under a general retainer. Mitchell v. Hackett, 14 Cal. 661 ; Ellis v. Smith, 42 Ala. 349. It is held that a tender of the money due upon a judgment, if not accepted, does not operate as an extinguishment of the lien. Jackson v. Law, 5 Cow. 48 ; S. C. affirmed, 9 id. 641 ; Ex parte Peru Iron Co., 7 id. 540 ; People v. Beebe, 1 Barb. 379. See Tiffany v. St. John, 5 Lans. 153 ; and see Kortright v. Cady, 21 N. Y. (7 Smith) 343, which decides that the tender of the money due on a mortgage discharged the lien. See, also, Trimm v. Marsh, 3 Lans. 509 ; Miner v. Beekman, 11 Abb. N. S. 147 ; S. C, 42 How. 33 ; 50 N. Y. (5 Sick.) 337 ; 14 Abb. N. S. 1. b. Levy and sale. A levy upon personal property, sufficient in value to satisfy the judgment, has been said to extinguish the lien ( Voorhees v. Gros, 3 How. 262 ; Ex parte Lawrence, 4 Cow. LIEN OF JUDGMENTS. 743 Ley y and sale — Recovery of new judgment -Lapse of time. 417 ; Wood v. Torrey, 6 Wend. 562 ; Hoyt v. Hudson, 12 Johns. 207 ; Troup v. Wood, 4 Johns. Ch. 228 ; Jackson v. Bowen, 7 Low .13), and that a release of such property does not revive IX. -LD. A mere levy, however, on sufficient personal property, without any thing more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody the othe°r rem- edies of the creditor will be suspended. He cannot have a new execution against the person or property of the debtor, nor maintain action on the judgment, nor use it for the purpose of becoming a redeeming creditor. The mere levy neither gives any thing to the creditor nor takes any thing from the debtor. It does not divest title ; it only creates a lien on the property. The People v. Hopson, 1 Denio, 578. See Green v. Burke, 23 Wend. 490 ; Ostrander v. Walter, 2 Hill, 329. The true rule has been stated to be, that the judgment is satis- fied when the execution has been so used as to change the title, or in some other way deprived the debtor of his property. This includes the case of a levy and sale, and also the case of a loss or destruction of the goods, after they have been taken out of the debtor's possession by virtue of the process. People v. Hop- son, 1 Denio, 574. c. Recovery of new judgment. It has been held that, where a creditor recovers a new judgment on a judgment, he loses his first lien (Purdy v. Doyle, 1 Paige, 558) ; but the better doctrine would seem to be, that, in such a case, the lien of the earlier judgment is not affected by the recovery of a new judgment, if of no higher degree than the former. See Harvey v. Wood, 5 Wend. 221 ; Millard v. Whitaker, 5 Hill, 408 ; Andrews v. Smith, 9 Wend. 53 ; Jackson v. Shaffer, 11 Johns. 513 ; Mum- ford v. Stocker, 1 Cow. 178. d. Lapse of time. The lapse of ten years from the time of docketing the judgment will operate as an extinction of its lien. Code, § 282. But it is further provided that the time during which the party recovering or owning the judgment shall be restrained from proceeding thereon by any order of injunction or other order, or by the operation of any appeal, shall consti- tute no part of the prescribed time as against the defendant in the judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. lb. CHAPTER XII. SETTING OFF JUDGMENTS. ARTICLE I. WHAT JUDGMENTS MAT BE SET OFF. Section 1. In general. The practice of setting off one judg- ment against another, in a proper case, has long existed ; but the power to do so was incidental to a court of equity, and ex- clusively exercised by such courts until within a comparatively recent period, when courts of law also undertook to set off one judgment against another. Simson v. Hart, 14 Johns. 63. And not only will one judgment be set off against another judgment of the same court, but the power will also be exercised where the judgments are in different courts, if the parties are interested in the respective judgments in the same right, and the judgment is conclusive, and the rights of the parties are not doubtful, complicated or intricate. Story v. Patten, 3 Wend. 331 ; Harris v. Palmer, 5 Barb. 105 ; Poss v. Hicks, 11 Barb. 481. And this rule extends to a judgment in a justice's court. Ewen v. Terry, 8 Cow. 126 ; Ross v. Hicks, 11 Barb. 481. Where, however, the judgments to be set off are in different courts, the application should be made in that court where the judgment against the applicant was recovered. That court alone has the direct power to control the proceedings on the judgment. Cooke v. Smith, 7 Hill, 186. See Brewerton v. Harris, 1 Johns! 144 ; People v. New York C. P., 13 Wend. 652. If it is desired to set off a judgment obtained in a justice's court, which has been filed with the county clerk, the applica- tion must be made to the county court. Moss v. Hicks, 11 Barb. 481. A judgment recovered against two jointly may properly be set off against a judgment in favor of one of them individually. Simson v. Hart, 14 Johns. 63, 75 ; Graves v. Woodbury, 4 Hill, 559. Section 2. Judgments in rem. A judgment merely in rem is not such a one as may properly be set off. Thus, a judgment SETTING OFF JUDGMENTS. 745 Assigned judgments — Pending appeal — Proceedings to obtain set-off. rendered upon attachment without being contested is but prima facie evidence of a debt, and can no more be set off on motion than a bond or note. In order that one judgment may be set off against another, it must be rendered upon appearance or service of process upon the defendant personally. See People v. Dela- ware C. P., 6 Cow. 598. Section 3. Assigned judgments. A judgment which has been assigned by the original creditor may be set off in favor of the assignee ; but the latter must be the absolute owner, holding the beneficial control, or he cannot set it off. Satterlee v. Ten Byck, 7 Cow. 480. It is not competent for a party to buy a judgment conditionally for the purpose of setting it off. He is bound to become the absolute proprietor for that purpose, and incur the risk of set-off himself {Oilman v. Van Slyck, 7 Cow. 469), and especi- ally is this rule insisted upon when the other judgment has been assigned in good faith. Mason v. Knowlson, 1 Hill 218. As the right to set off judgments does not accrue until judg- ment has been perfected, the bona fide assignment, previous to the entry of judgment, will cut off the right to have such judg- ment set off as against the party in whose favor it was recovered. Nash v. Hamilton, 3 Abb. 35 ; Mackey v. Mackey, 43 Barb. 58 ; Roberts v. Garter, 38 N. Y. (11 Tiff.) 107 ; S. C, 6 Trans. App. 253; 35 How. 642. See Pignolet v. Geer, 1 Rob. 626 ; S. C, 19 Abb. 264 ; Brooks v. Hanford, 15 id. 342 ; Noxon v. Gregory, 5 How. 339 ; Crocker v. Olaughly,2 Duer, 684. Section 1. Pending appeal. Judgments cannot be set off against each other where one of them has been appealed from, and the appeal is still pending and undetermined. Be Figaniere v. Young, 2 Rob. 670. ARTICLE II. PEOCEBDINGS TO OBTAIN SET-OFF. Section 1. Remedy by motion or by action. The set-off of a judgment may be obtained either on motion or by action. The power of the court to direct one judgment to be set off against another depends upon the equitable control which every court mav exercise over its own suitors and process, and not upon any certain rule of law. People v. New York OP., 13 Wend. 649 ; Bunkin v. Vandenbergh, 1 Paige, 622. Such applications are, therefore, addressed to the discretion of the court, which discre- Vol. III. — 94 746 SETTING OFF JUDGMENTS. Motion, where made — Motion papers — Proceedings on order. tion is to be exercised, in such a manner as to do equity and pre- vent injustice. If justice will be promoted by it, and if no other rights will be infringed by it, then the set-olf will be ordered, although the parties to the different judgments are not the same. G 1 Conner v. Murphy, 1 H. Bl. 659 ; Baker v. Hoag, 6 How. 201. In cases where, by action, the relief sought would be granted as a matter of strict statutory right, the courts will usually refuse to interfere on motion. Purchase v. Bellows, 9 Bosw. 642 ; S. C, 16 Abb. 105. A denial of the motion does not constitute a bar to an action for the same purpose. Simson v. Hart, 14 Johns. 63. Section 2. Motion, where made. Application should, of course, be made to the court rendering the judgments, where the judg- ments are in the same court ; but if the judgments are in differ- ent courts, the application must be made in that court in which judgment against the moving party was recovered. CooTce v. Smith, 7 Hill, 186. See Brewerton v. Harris, 1 Johns. 144 ; People v. New York 0. P., 13 Wend. 652. Section 3. Motion papers. The motion papers should be enti- tled in all the causes containing the judgments, which are the subjects of the application. Alcott v. Davison, 2 How. 44. ARTICLE III. PROCEEDINGS ON OKDEK. Section 1. Satisfaction of judgment. If the motion to set off is granted, the judgment so set off is satisfied, and the court will order it discharged of record. Schroeppel v. Jewell, 1 Cow. 208. ' CHAPTER XIII. SATISFACTION AND DISCHAKGE. AKTICLE I. ACKNOWLEDGMENT OE SATISFACTION. Section 1. When satisfaction must be acknowledged. Satisfac- faction must be acknowledged when payment of the judgment is made. 2 R. S. 362 (375), § 25. Section 2. Satisfaction, by whom acknowledged. The acknowl- edgment of satisfaction must be made by the party in whose favor the judgment was obtained, or by his executors or admin- istrators (2 E. S. 362 [375], § 22) ; or it may be made by the attorney on record of the party in whose favor the judgment was rendered, within two years after the filing of the record of such judgment, in the same manner, and with the like effect, as if made by the party himself ; but such satisfaction shall not be conclusive against the party in whose favor the judgment was rendered, in respect to any person to whom actual notice of the revocation of the authority of such attorney shall have been given, before any payment on such judgment shall have been made, or before any purchase of property, bound by such judg- ment, shall have been effected. lb., § 24. An attorney is not authorized, however, by his general re- tainer, to satisfy a judgment without actual payment in money of the full amount of the judgment, and, if he does so, the court will set such satisfaction aside. Benedict v. Smith, 10 Paige, 126; Steward v. Biddlecum, 2 N. Y. (2 Comst.) 103; Lewis v. Woodruff, 15 How. 539 ; Beers v. Hendricltson, 6 Rob. 53 ; Carstens v. Barnstorf, 11 Abb. K S. 442. And although an attorney should hold the judgment by assignment as security for debts due from his client, his satisfaction, without payment, is good only for the amount of his interest. Beers v. Hendrick- son, 45 N. Y. (6 Hand) 665. " A satisfaction piece of a judgment in favor of a corporation, which shows upon its face that it was executed by its president in his official capacity, is binding upon the corporation, although 748 SATISFACTION AND DISCHARGE. Satisfaction, how acknowledged — Compelling acknowledgment. not executed in the name of, or under the seal of, the corporation. Booth v. Farmers and Mechanics' National Bank, 50 N. Y. (5 Sick.) 396 ; reversing S. C, 4 Lans. 301. Section 3. Satisfaction, how acknowledged. Acknowledgment of satisfaction may be made before the clerk (Laws of 1834, ch. 262, § 3), or some judge of the court in which the judgment was rendered, or a county judge or commissioner of deeds, who must certify that the party making it is known to him, or has been made known by competent proof. 2 R. S. 362 (375), § 23. If satisfaction is acknowledged by virtue of a letter of attor- ney or other instrument containing a power to acknowledge sat- isfaction, such instrument must be acknowledged or proved before the clerk of the court in which the judgment was ren- dered, or before some officer authorized to take acknowledgments of conveyances of real estate, and must be filed with the satis- faction-piece. Laws of 1834, ch. 262, § 2 ; 4 Edm. Stat, at Large, 622. In case the party in whose favor the judgment has been ren- dered resides out of the State, the satisfaction-piece must be acknowledged before some officer authorized to take acknowledg- ments of deeds for this State. lb. The satisfaction-piece, being regularly made out, should be filed with the clerk in whose office the judgment was originally docketed, who must then enter satisfaction on the docket and cancel the judgment. 2 R. S. 362 (375), § 22. The clerk must, on demand, and on payment of the fee of 12£ cents, give a cer- tificate of satisfaction, which should be filed with any other clerk in whose office a transcript of the judgment has been filed, and will then discharge its lien. See 2 R. S. 363 (375), § 27 ; 4 Edm. Stat, at Large, 688 ; id. 622, 627, 634 ; 5 id. 79. Section 4. Compelling acknowledgment. Where a judgment is fully paid, and the creditor refuses to acknowledge satisfac- tion, the court will, on motion, compel him to enter satisfaction at his own expense, and to pay the costs of the motion (Briggs v. Thompson, 20 Johns. 293), or will order satisfaction to be entered on the record without acknowledgment. Pinder v. Morris, 3 Cai. 165 ; Bergen v. Boerum, 2 id. 256. Only a party to the record, however, or a person having some legal or equitable interest in the canceling of the judgment, is entitled to make application to the court to order it satisfied of record, and such application must be founded on recognized SATISFACTION" AND DISCHARGE. 749 Compelling acknowledgment — Form of satisfaction-piece. legal or equitable grounds. Matter of Beers, 5 Rob. 643. And before the interference of the court can be asked, the judgment debtor must prepare a satisfaction-piece, present it to the cred- itor, and offer to pay the expense of its execution. 2 R. S. 362 (375) ; Briggs v. Thompson, 20 Johns. 293 ; Pettengill v. Mather, 16 Abb. 399 ; McBrair v. Hanson, id. note. Where the sheriff has collected money sufficient in amount to satisfy the judgment, but has made default in his return, the court will not direct satisfaction to be entered of record, but will stay all proceedings on the judgment, thus leaving the creditor to his remedy against the sheriff. Hamlin v. Boughton, 4 Cow. 65. So, where a third person makes application to be protected against a judgment which is an apparent lien upon property purchased by him, and which is satisfied so far as in equity to cancel that lien, but which is not clearly satisfied in full, the court, instead of entering satisfaction, will order a perpetual stay of execution. Smith v. Page, 15 Johns. 395. See Lansing v. Orcott, 16 Johns. 4 ; Fririk v. Morrison, 13 Abb. 80. Bringing an action upon a judgment, and recovering and per- fecting a judgment thereon, is no satisfaction of the first judg- ment. The second judgment must be satisfied, in fact, to* war- rant a motion for entry of satisfaction upon the record in the first. Mumford r. Stocker, 1 Cow. 178. See Briggs v. Thompson, 20 Johns. 294. But where, for the same cause, two suits proceed to judgment and execution, the satisfaction of either may be shown in discharge of the other. Bowne v. Joy, 9 Johns. 221. Section 5. Form of satisfaction-piece. When satisfaction is acknowledged by the attorney, the satis- faction may be in the following form : SUPREME COURT — ElTLTON COUNT*. A. B. Judgment entered January 1, 1873. Recovery $500 50 Costs 15 00 C D. I $515 50 D. M., Plaintiff's Attorney. The above-described judgment has been fully paid and satisfied. September 15 1873. ' . D. M., Attorney for Plaintiff . 750 SATISFACTION AND DISCHARGE. Form of satisfaction by plaintiff — Entry of satisfaction. Fulton - County, ss. : On this 15th day of September, 1873, before me came the above- named D. M., attorney for the above-named plaintiff, to me known to be the person who executed the above instrument of satisfaction, and acknowledged the execution thereof. R. M., Justice of the Peace. Form of satisfaction by plaintiff . SUPREME COURT — Fulton County. E. F. ~~ "1 »■ Y Satisfaction of judgment. g. h. J Satisfaction is acknowledged of j udgment between E. F., plain- tiff, and G. H., defendant, for the sum* of $750.25. Judgment entered in the judgment book of the county of Fulton, on the 26th day of June, 1872. Dated September 12, 1873. E. F. Fulton County, ss. : On this 12th day of September, 1873, before me came the above-named E. F., to me known to be the person described in, and who executed the above instrument of satisfaction and acknowledged the execution thereof. R. M., Justice of the Peace. A satisfaction-piece of a judgment will not be reformed," nor will it be considered efficacious for any other purpose than that expressed on its face, when no mutual mistake has occurred as to its terms, although there is some evidence that it was intended to accomplish more than it purports to authorize.. Beers v. Hen- drickson, 6 Rob. 53. ARTICLE IT. ENTRY OF SATISFACTION. Section 1. On satisfaction-piece. Filing the satisfaction -piece is not in itself a satisfaction of the judgment, but is only an authority to enter a satisfaction, and until such entry is made on the roll by the clerk the judgment is not satisfied. Beers v. HendricTcson, 6 Rob. 53 ; Lownds v. Pemsen, 7 Wend. 35. See Booth v. The Farmers and Mechanics' 1 National Bank, 4 Lans. 301. Bat in the absence of proof to the contrary, the presump- tion arising from the giving of a satisfaction-piece is that it was given upon payment of the judgment. The satisfaction-piece is SATISFACTION AND DISCHARGE. 751 On sheriff's return— On certificate of reversal. an acknowledgment of the satisfaction of the judgment, and this is equivalent to an acknowledgment of its payment, which is the proper and usual way of satisfying it and is sufficient prima facie as an admission to charge the party . giving it with the receipt of the amount. Booth v. Farmers and MecJianics' National Bank, 50 N. Y. (5 Sick.) 396. See Beers v. IlendricJc- son, 45 N. Y. (6 Hand) 665. Section 2. On sheriff's return. The Revised Statutes provide that "when an execution issued upon any judgment shall be returned satisfied in whole or in part, such judgment shall be deemed satisfied to the extent of the amount so returned as hav- ing been collected on such execution, unless such return be va- cated by the court ; and upon any execution being so returned, the clerk of the court shall enter in the docket of such judgment the fact that the amount stated in such return to have been levied has been collected." 2 R. S. 362 375, § 26. In such case no for- mal satisfaction-pie'ce need be taken, but a transcript of the record should be filed wherever the judgment has been made a lien. Section 3. On sheriff's certificate. Upon payment to the sheriff of a county of the amount due upon any execution in his hands, issued upon a judgment obtained in any other county, such sheriff must, on demand, deliver to the person paying the same a copy of such execution and of his indorsement of satis- faction thereon, and must certify the same to be a copy, on the further payment of twenty -five cents to him therefor ; and upon filing such certified copy with the clerk of the sheriff's county, such clerk must enter satisfaction of the judgment upon the docket, in the same manner and with the like effect as if the judgment had been obtained in such county, and the original execution had been returned satisfied. Laws of 1860, ch. 6, § 1. On filing with the clerk of any other county in which the judgment has been docketed, a certificate of the clerk before mentioned that such copy of the execution has been filed, and the judgment discharged, satisfaction may be entered on the docket of that county. Laws of 1860, ch. 6, § 2. Section 4. On certificate of reversal. Whenever any judgment shall be reversed or vacated, the certificate of the clerk of the court with whom the judgment was entered, of that fact, under his seal of office, shall be sufficient to authorize the discharge of such judgment, when filed with the clerk with whom the judgment has been docketed. Laws of 1844, ch. 104, § 5. 752 SATISFACTION AND DISCHARGE. When satisfaction will be vacated — Canceling satisfaction. ARTICLE III. VACATING SATISFACTION. Section 1. When satisfaction will be vacated. Where the acknowledgment or entry of satisfaction is procured through fraud, or in any other way that entitles the creditor to avoid it, the court will set it aside on motion. Thus, where the plaintiff, after he had assigned a judgment, and had given notice to the defendant of such assignment, entered up satisfaction on the record, the entry of the satisfaction was held to be fraudulent and void, and it was ordered to be vacated. Wardell v. Eden, 2 Johns. Cas. 258 ; S. C, 1 Johns. 534, note. So, where a sale on an execution was discovered to be void, the court vacated the satisfaction and authorized a new execution. Suydam v. Holden, Seld. Notes, No. 4, 16. See Meld v. Paulding, 1 Hilt. 187 ; S. C, 3 Abb. 139 ; Anderson v. Nicholas, 4 Rob. 630. The satisfaction entered on record, must, however, as to all persons who stand in the situation of innocent purchasers for a valuable considera- tion be deemed valid and effectual ; and the restoration of the judgment, as it respects their rights, can only be considered as forming a lien from the time it was so restored. Bebee v. Bank of New York, 1 Johns. 529 ; Taylor v. Ranney, 4 Hill, 619. Section 2. Canceling satisfaction. The cancellation provided for by the Revised Statutes (2 R. S. 362 [375], § 22), is not of the record, or by an entry on the roll, but a cancellation of the docket, and since the Revised Statutes the practice of the clerks in the supreme court has been to make a memorandum in the docket as well in the case of a satisfaction piece as in the case of an ex- ecution returned satisfied, making no more formal cancellation ; and such entry is held to be a cancellation of the docket within the meaning of the statute. See Booth v. The Farmers and Me- chanics' N. Bank, 4 Lans. 301 ; but see Lownds v. Remsen, 7 Wend. 35, in which it is held that a satisfaction-piece is not a record, and that an entry thereof on the docket does not amount to a discharge of the judgment ; but to have that effect it must be entered on the judgment roll. See, ante, art . 2, § 1, p. 750. Section 3. Unauthorized cancellation. The clerk is authorized to cancel and discharge the docket upon the filing with him of an acknowledgment of satisfaction, signed by the party in whose ' SATISFACTION AND DISCHARGE. 753 Unauthorized cancellation. favor the judgment was obtained, and authenticated in a partic- ular manner. Unless this has been done the act of the clerk in canceling the docket is without jurisdiction, and void as to the parties whose rights purport to be affected by it. See Booth v. Farmers and Mechanics'' N. Bank, 4 Lans. 301. It seems to be conceded by the court in Lownds v. Bemsen, 7 Wend. 35, that if the satisfaction had been entered on the roll it would have been conclusive on the plaintiff until vacated, though entered on a forged satisfaction-piece. But this was upon the technical ground that the record itself imports absolute verity and is deemed to be the act and judgment of the court, while an entry by the clerk in the docket has no such effect, the docket being no part of the record of the court. See Booth v. Farmers and Mechanics' N. Bank, 4 Lans. 301. Vol. III. -95 INDEX TO VOL. III. ABSENCE : PA(M . Of party, counsel or witnesses, when a ground for postponement 66 When a ground for new trial 401 ACCOUNT : What is an account 250 What is a long account 250 When compulsory reference ordered to examine 249 Powers of referee appointed to take and state 272, 342 Proceedings on, reference to take 355-363 (See Interlocutory Reference.') ACKNOWLEDGMENT : Of satisfaction of judgment 747 ADJOURNMENTS : * Power of a referee to grant 284, 353 ADJUSTMENT : Of costs 551 Notice of. . * 552 Proceedings on 553 Appeal from 558 ADMINISTRATORS : Accounting by 359 ' What allowances may be made to 359, 360 Liability of, for costs 530-536 ADMISSIONS : Evidence not admissible to contradict admissions in pleadings 84 Party should call attention of court to admission in his favor 84 Admission in one answer, not available against the others 84 Testimony given on a former trial may be given in evidence as an admis- 84 sion °* Demurrer, when an admission 85 What judgment may be rendered on admitted demand . .'. 614 Form of judgment on admitted demand 619 AFFIDAVIT : Reference to compel '. 302 AFFIDAVIT OF MERITS : When necessary 44 When not necessary 45 At what time to be made 45 By whom to be made ^6 756 INDEX. AFFIDAVIT OF MERITS — Continued. page. Requisites of 47, 48 How entitled 48 Venue essential to 49 Indorsement upon ' 49 But one affidavit necessary 50 Filing and service of 50, 51 Controverting truth of 51 Amendment of 51 ALIEN: Not qualified to serve as juror 90 New trial, not granted because juror was an alien 397 ALLOWANCES : Referee cannot grant extra allowance of costs 288 What allowances made on an accounting 359, 360 Of commissions 360 AMENDMENT : Of verdict 197 Of report of referee 313 Of case 325 Of judgment 729 Of pleadings, costs on 513 APPEAL: The only mode of reviewing final decision of court 225 '■From decision, will not be heard unless case contains findings of fact 226 From decision 05 demurrer 236 From order directing a reference 259 From judgment entered on report of referee 324 Appeal the only mode of reviewing judgment entered on report of referee, 324 Settling case and exceptions 325 Serving case, exceptions and amendments 325* Making copies of case and exceptions as settled 326 Obtaining additional findings of facts 327 Exceptions to findings of fact unnecessary and idle 329 Review of report at general term 329 General term will review questions of fact without exceptions 329 Court of appeals will not review questions of fact .' 329 When exceptions will be sufficient without case 330 When case will be necessary 330 Contents of case 330 Principles upon which judgment will be rendered on 330 From judgment of referee to court of appeals 331 From order granting or refusing new trial 449 From order opening or refusing to open default 670 Costs on, how far discretionary 517 Double and treble costs on 518, 519 Extra allowance on 519 Costs on dismissal of 519, 521, 522 Costs on appeal to court of appeals 519 INDEX. 757 APPEAL — Continued. page. Costs on appeal to general term 521. Costs on appeal from justice's courts 523 Judgment on 633 Proceedings on judgment in appellate court 533 Judgment of affirmance on 634 Judgment of reversal on 634 Judgment of affirmance and reversal 635 Dismissal of 636 ARBITRATION : Distinction between arbitration and reference 238 When reference will become an 239 ARRAY : Challenge to 103, 107 ARGUMENT : Of demurrer 229 ARREST : Of judgment 736 ASSAULT : Costs in actions for assault and battery 464 ASSESSMENT : Of damages on default 646, 654 By clerk" .' 646 Notice of 647 By sheriff's jury 655 At circuit .* 664 By reference 665 ASSIGNEES : Liability of, for costs 537 ASSIGNMENT : Costs in actions to set aside 493 Of verdict before entry of judgment 195 Of report 317 ATTACHMENT : Extra allowance on 491, 493 Fees of sheriff on 548 ATTORNEY : When exempt from jury duty 97 May consent to reference 246, 255 Fees of ' 540 Lien of, for costs 541 Liability of, for costs 538, 549, 550 Power of attorney to satisfy judgment 747 BOOKS : Power of referee to require production of. .....-.„. 287 BRIEF : Preparation of H° Contents of I 18 758 INDEX. BURDEN OF PROOF : page. Usual mode of determining where it rests 117 Usually rests upon the party holding the affirmative 117 Test for determining who holds the affirmative 118 Where both parties hold affirmative 119 Where presumptions of law are in favor of either party 119 In actions where negligence is alleged 119, 120 In action for a penalty 120 CALENDAR: Putting cause upon ■ '. 39 Necessity of putting cause upon 39 Duty of clerk on filing note of issue 39, 40 Expenses of printing, how •defrayed 40 Causes how arranged upon 40 What causes have preference on 7, 8, 9 Correcting 41, 52 Short or special calendars in supreme court, New York city 41 Short or special calendars in New York superior court 42 Special calendar of New York common pleas 43 Calling calendar .' 52 CAPTION : Of order 575 Of judgment 616 CASE: When necessary to present questions for review 329 How made 424, 450 Motion for new trial on case and exceptions 424, 433 Form of 427, 431 Contents of 330, 424, 427, 451 Filing and serving 326, 429, 433 Amendments 430 Settlement of 325, 431 Procuring additional findings on settlement 327 Re-settlement 432, 450 As evidence 326 Preparing case for court of appeals 449 CHALLENGE : Object of challenges to jurors 102 Classification of challenges ,. 103 Jury box must be full before 103, 107 To the array • 103 When a challenge to the array is proper 103 To the polls ' ]04 Classification of challenges to the polls 104 For disqualification 104 For crime 104 To the favor 104 Nature of challenge to the favor 105 Causes of challenge to the favor 105-107 INDEX. 759 ALLENGE — Continued. PAGK Mode of 107 To the array, must be in writing 107 Ground of, must be stated ..'... 107 Trial of 108 Common-law rule as to trial of challenges 108-110 When triers were appointed under former practice 109 Oath of triers no Mode of trial by triers _ HO Juror may be challenged for principal cause and afterward to the favor 110 All challenges now tried by court HO Review of decision of judge on trial of challenge 110 Peremptory challenge _ m Peremptory challenge a waiver of prior challenges Ill CHARGE : General practice of court to charge jury 176 Object or purpose of 176 General character of 176 As to credibility of witness 176 As to testimony of impeached witness 177 Criticising testimony of witness 177 As to questions of fact _ 178 Judge cannot be required to charge as to matters of fact 178 Discretionary with judge in absence of request. . : 178 Request to charge, when necessary 179 In absence of request, neglect to charge no error 179 Form of request to charge 179 Party may be required to specify evidence sustaining request to 180 Duty of court to charge as requested if at all 180 Refusal to charge, when proper 181 When the court should direct a verdict 181 Exceptions to charge or refusal to charge 182 Exceptions to charge, when taken 204 Exceptions to charge, how taken 182 General exception to charge usually unavailing 182 Counsel should point out the particular error or omission in the charge. . . 183 Where law is incorrectly stated in the charge, request to charge differently unnecessary 183 When error in, a ground for new trial 405 When refusal to charge, a ground for new trial 407 CLAIMS : Reference to hear 303, 342, 364 Reference as to claims to surplus on foreclosure 368 Practice on reference as to 368-370 Costs on reference as to 370 Report of referee as to 371 CLERK : Fees of 501 > 545 760 INDEX. COMMISSION : page. Cost on motion, for commission to take testimony 510 Costs of 500 Allowed executors, etc., on settlement of account .* 360 COMPETENCY : Of witnesses 120 Changes in old rules as to competency of witnesses 120 Of witness to prove transaction with deceased person 121 Of husband and wife as witnesses 121 Of physicians, surgeons, ministers, priests, etc 122 How far religious belief affects 122 Conviction for petit larceny does not destroy 142 Interest does not render witness incompetent 142 Exceptions to reception of incompetent evidence, when taken 204 COMPLAINT : Power of referee to strike out 275 Power of referee to allow amendment of 276 CONFESSION: Judgment by 682-695 Nature of judgment by 682 In what cases judgment by, allowed 683 Judgment, by whom confessed 684 To whom given 685 The statement of liability 686 Entry of judgment on 690 Costs on judgment by 692 Execution on judgment by 692 Remedy against judgment by 693 CONFIDENTIAL COMMUNICATIONS : Privileged 122 CONFIRMATION : Of report of referee 315, 321, 371, 380 CONCLUSIONS OF LAW: Statement of, in decision of court 219 Exception to, necessary to raise question for review 318, 329 CONCLUSIVENESS : Of verdict • 194 Of report of referee 314 CONSENT : To reference 244 Proceedings to obtain reference by 254 Waiver of 245 Application for new trial on, not granted as of course 419 CONSOLIDATION: Costs on motion for 509 CONSTRUCTION: Of special verdict 197 INDEX. 761 CONSTRUCTION— Continued. page. Of order of reference 258 Of report of referee 314 CONTEMPTS : Classified 87 What constitutes a contempt 88 Where authority to punish for, is lodged 88 Power of referee to punish 281 Power of releree to punish, not exclusive 281 CORRECTION: Of report of referee 333 When the court may correct report of referee 333 When the court may send back report to referee for 334 COSTS : General principles governing allowance of . 453 Right to, on what founded 453 At common law 453 In chancery 454 Reasons for alio wing 454 Costs under the Code 454 Of what composed 455 What statute controls allowance of 450 Interlocutory and final costs distinguished 450 On dismissal of proceedings for want of jurisdiction ' 457 After trial on improper or unauthorized pleadings 457 In actions pending in 1848 457 Defendant entitled to, when plaintiff is not 458 When several defendants entitled to several bills of cost 458 When neither party entitled to 459 On discontinuance in foreclosure, costs discretionary 459 When and what costs allowed on entry of judgment 460 Costs when title to land is in question 4C0 Construction of the term " title " 460 When the title of land is in question 460 Evidence that title was in question on trial 460, 462 When title arises on the pleadings 461 When title arises on the evidence 462 Procuring proof that title to land was in question on the evidence 462 Costs in replevin 463 Costs in replevin limited by amount of recovery 463 Where verdict is for plaintiff as to part of property and for defendant for residue 464 Costs in actions for injuries to the person or character 464 Costs alio ived of course to plaintiff in actions for assault and battery, false imprisonment, etc -464 In action for tort where recovery less than $50 464 In actions for tort in the marine court 464 Costs when justices' courts have no jurisdiction 465 In what actions a justice has no jurisdiction 465 Vol. III. — 96 762 INDEX. COSTS— Continued. PAOS. Costs where the justice has no jurisdiction and the amount recovered is less than $50 465 Eight to cost does not depend on attempt to bring the action in justices' court 466 Adjudication of justice on the question of amount conclusive 466 Where plea of title is interposed in justices' court 467 Costs in actions to recover money only 467 Plaintiff entitled to costs as of course if he recover $50 467 Amount of recovery, how estimated in determining right to costs 468 To defendant on recovery 468 When action on bond, etc., is unnecessarily severed 468 Adding interest on recovery from time of verdict or report until final entry , of judgment 468 Separate issnes 468 Each party entitled to costs on separate issues found in his favor 468 Where there are several defendants 469 Defendants appearing by one attorney entitled to but one bill of costs. . . . 469 Defendants necessarily interposing several answers entitled to costs of same 470 Where defendants appear by attorneys who are partners 470 Where defendants appear by separate attorneys and interpose separate defenses 470 Where defendants appearing by different attorneys unite on one 470 Where two actions are heard together 470 Plaintiff recovering but one judgment entitled to but one bill of cost. ..... 470 On default of one of several defendants 471 Equity suits, or for special relief 471 Costs in equity discretionary 471 Rules governing allowance or refusal of costs in equity 472 Prevailing party prima facie entitled to costs 472 Neither party allowed costs when both in fault 472 Where each party makes an unfounded claim no costs allowed either 472 Where nature of action shows good faith in bringing action, neither allowed costs against the other 473 Costs not allowed plaintiff in two actions where one would have been sufficient 473 Not allowed where relief could have been obtained on petition or affidavit, 473 Where demurrer is delayed until trial 473 When defeated party allowed costs in equity 474 In creditors' action 474 On demurrer ._ 475 In divorce .'....' 475 In action for dower'. 475 Where defeated party is guilty of fraud 475 Where charge of fraud is unfounded 476 In action of interpleader 476 In mortgage cases 477 In partition 477 In actions brought to quiet title 478 INDEX. 763 COSTS — Continued. page. In actions for specific performance 478 In actions by or against trustees 479 In action for the construction of a will 480 In actions against municipal corporations 481 Rate and amount of costs 481 Before notice of trial 481 Where more than one defendant is necessarily served with process 482 Costs of defendant before notice of trial 482 Where complaint is dismissed for want of prosecution before notice of trial , , 482 After notice and before trial 483 For attending and taking deposition of witness 483 For attending to perpetuate testimony 483 For drawing interrogatories to annex to commission 483 For attending examination of party before trial 483 For appointment of guardian of infant defendant 483 Trial fees when allowed 484, 488 Amount of trial fee 484 Term fees, when and when not allowed 486-489 See Term Fees. When the right to term fees accrues 486 Only five term fees allowable 486 Term fees in city court of Brooklyn 488 Term fees in court of appeals 488 Costs after granting of, and previous to new trial 489 Double and treble cost* 489 Right to double and treble costs exist under Code 489 Statute giving double costs does not apply to suits in equity 489 Double costs obtained only on application to court 489, 491 Double costs denned 490 Double costs, when given 490 Right to double costs, how waived 490 Treble costs defined 491 Treble costs, how obtained 491 Extra allowance as a right 491 In what actions an extra allowance is a right 491, 494 Amount of extra allowance, how estimated 491, 492 Attachment must be sustained to entitle party to extra allowance 493 Extra allowance when given on adjudication on written instrument 493 Extra allowance, how oomputed in attachment 493 Discretionary allowance 494 In what cases the court may make a further allowance 494 What are and what are not difficult and extraordinary cases within the meaning of section 309 of the Code 495 Trial must be had to authorize additional allowance 496 What is and what is not a trial within the terms of section 309 496 Funds of infants seldom charged with additional allowance 497 Amount of allowance under section 309 of the Code 497 Allowance in excess of statutory percentage irregular 497 764 INDEX. COSTS — Continued. page. Application for additional allowance, when and where made 497, 498 Motion papers must set forth grounds for allowance 498 Counsel fees, when allowed as costs 499 Disbursements 500 Necessary disbursements may be taxed as costs 500 What charges allowed as disbursements 500 Pees of officers 500 Referee's fees 501, 549 Stenographer's fees '. 501 Witness' fees 501 Traveling fees 503 Expenses of commission 504 Other disbursements 504 Costs ox Motions and Special Applications 505-51 6 Costs on motion, when granted or refused 505-516 Provisions of Code as to costs on motion 505 To what motions section 315 of Code applies 505 C(Jsts in the cause, explained 506 Costs on motion discretionary 506 Not allowed on ex parte motions 506 Not asked for, not allowed 506 Party succeeding in motion generally entitled to 507 Too much asked in motion defeats right to costs 507 Party needlessly opposing motion charged with costs 507 Party making unnecessary motion charged with costs 508 Not allowed to either party where decision of new or unsettled question is required on the motion 508 Where motion denied for defective notice 509 On motion to set aside for irregularity 509 On motion to vacate ex parte order 509 On application for allowance 509 On motion for a discovery 509 On motion for consolidation 509 On motion to change venue 510 On motion for commission to take testimony 510 On order for payment of admitted demand 510 Order should fix amount of costs of motion 510 Costs on motion for new trial 448, 511 514 Costs where new trial is granted as a favor 511 Where new trial is moved for on a case or exceptions 511 Where new trial is granted on judge's minutes 512 Costs on granting favor 512 Adjustment of costs imposed as a condition on granting a favor 512 Amount of costs imposed on granting favor, how far discretionary 512 General principles regulating terms imposed on granting favor 513 On allowing amendment of pleadings 513 On granting a postponement 514 On new trial 514 On vacating or setting aside judgments 515 INDEX. 765 COSTS — • Continued. page. Ou vacating inquest .' 515 On stipulation to try cause dismissed for neglect to proceed 516 On application for judgment at general term 516 On submission of controversy without action 516 On special verdict 516 On verdict subject to opinion of court 516 On exceptions heard at general term 516 Costs on Appeals 517-525 General principles relating to costs on appeal 517 When costs on appeal are discretionary 334, 517 When costs on appeal are a matter of right 517 When successful party entitled to separate bills of cost. . , 517 Rules regulating discretion in granting costs on appeal 517 Generally awarded against appellant when unsuccessful 517 Generally awarded to successful party 518 When new trial ordered costs must abide event of action 518 What included in costs when new trial ordered 518 On partial success of appellant, neither party allowed costs 518 When judgment reversed on points which might have been raised in court below 518 Where judgment is affirmed as to one of two defendants and reversed as to other 518 Double costs not granted to appellant 518 Respondent entitled to double costs below may have double costs on ap- peal 519 Allowance of treble costs on appeal 519 Extra allowance not granted by appellate court 519 On dismissal of appeal 519, 521, 522 On appeals to court of appeals 519 Provisions of Code as to costs apply to court of appeals 520 Damages for delay, obtainable on appeal from judgment only 520 Amount awarded as damages for delay 520 Only ten term fees allowed in court of appeals 520 Return must be filed before term fees allowed 520 Amount of costs on affirmance or reversal in court of appeals 520 On dismissing appeal in court of appeals ' 521 On appeals to general term 521 On appeals from judgment to general term 521 On appeals from order granting new trial 521 On appeals from order on demurrer 522 On appeals from special proceedings 522 On appeals from orders to general term 522 On dismissal of appeal to general term 522 On appeals from justices' courts 523 On offer of compromise by respondent and non-acceptance 523 On offer of compromise and acceptance 523 Where no offer of compromise is made 523 When appellant not entitled, respondent entitled to costs of appeal 523 What costs appellant may tax when successful on appeal 523 766 INDEX. COSTS— Continued. page. What fees and costs allowed on appeal to party entitled 523 To appellant on reversal 524 To respondent on affirmance 524' Where judgment affirmed in part and reversed in part .. . 524 On dismissal of appeal for want of prosecution 524 On reversal for error of fact, costs discretionary 524 Statement wherein judgment should be more favorable to appellant 524 When costs are a matter of right 525 Where appeal is transferred to supreme court 525 Costs on settlement before judgment 526 Costs against defendant on settlement 526 Extra allowances on settlement before judgment 526 Costs on discontinuance 526 Plaintiff generally required to pay costs on discontinuance 526 On discontinuance before appearance no costs imposed 527 On discontinuance after appearance 527 When plaintiff may discontinue without costs 527, 529 On discontinuance of action against one of several defendants 529 Liabilities of particular persons for costs 530 Who liable for costs, and when 530 Liability of trustees for costs 530 Who are trustees 530 When trustees are charged with costs 530 How trustees must sue to avoid personal liability for costs 531 When receiver liable for costs 531 When executor or administrator liable for costs 531, 532 Trustee, how charged with costs 532 Costs against estates of deceased persons 532 When executors and administrators are, and when not liable for costs, 532, 533 Costs in equitable actions against executors discretionary 533 Time and mode of presentation of claim, to charge executor with costs. . . . 533 What resistance of claim against estate deemed unreasonable 534 What deemed unreasonable neglect 534 What refusal to refer necessary to charge executor with 535 Costs against estate, how allowed 535 Referee no power to allow costs against executor or estate 535 Certificate of judge trying cause when necessary 535 Costs against infant plaintiffs 536 Costs against infant, enforced against guardian 536 When paid out of fund of infant 536 When infant becomes of age before termination of suit 536 When court directs a discontinuance of suit 537 Extra allowance rarely granted against infant 537 Liability of people for costs 537 Liability, where private person is joined with people as plaintiff 537 Where people are only nominally plaintiffs 537 Liability of assignees pending suit 537 Assignee of cause of action pending suit liable for 538 Liability of assignee in trust for benefit of third person 538 INDEX. 767 COSTS — Continued. pagb. Liability of assignee of interest in demand as collateral for a debt 538 Liability extends to costs before as well as subsequent to assignment 538 Liability of attorneys for costs 538 Liability of attorney, where defendant entitled to security for 538 When attorney liable for costs of non-resident plaintiff 539 Attorney commencing action without authority 539 Arising from gross negligence or fraud of attorney 539 Attorney and counsel tees 540 Attorneys' fees, how regulated 540 Old fee bill abolished 540 Compensation of attorney a matter of agreement 540 Attorney may stipulate to receive share of proceeds of action as fees 540 Agreement by attorney to indemnify client against 540 Attorney may purchase judgment 540 Power of court over agreements between attorneys and client 540 Agreement that fees shall depend on recovery, valid 541 Right of attorney to sue for his fees 541 Attorney's lien for costs 541 Lien of attorney for costs not abolished by Code 541 To what the lien attaches 541 Extent of attorney's lien for costs 542 Lien, how destroyed or suspended 542 Rights of lien against third parties 542 Lien, how enforced 543 Reference to determine existence and extent of lien 544 Fees of officers of the court. (See Fees.) .... .,_, 545 Fees of the court 545 Fees of sheriff 546 Fees of referees 549 Adjustment of costs 551 Proceedings on adjustment 551 By whom adjusted 551, 586 Duty of clerk to adjust costs on judgment 551 Interlocutory costs adjusted by judge 552 Final costs adjusted by clerk 552 In special proceedings adjusted by clerk 552 Notice of adjustment 552 Length of notice of adjustment 552, 586 Items of costs and disbursements must be served with notice 552 Who entitled to notice of adjustment 552 Time of notice 553 Effect of omission of due notice 553, 587 The adjustment 553 Proceedings on adjustment >■-,-• 553 Objections to notice should be taken at once 553 Duty of clerk to examine items charged 554 Mode of stating items of disbursements 554 Affidavit of costs and disbursements 554 Objections to affidavits, or to items of costs, etc 558 768 INDEX. COSTS — Continued. page. Appeal from adjustment 558 Appeal from adjustment by motion to correct or set aside adjustment. .... 558 Erroneous adjustment not fatal to judgment 558 Ee-adjustment, when necessary , 587 Motion for re-adjustment should be made promptly 558 Waiver of errors in adjustment 558 What will be reviewed on re-adjustment 559 Decision on motion for correction 559 Costs of motion for re-adjustment 559 Appeal from order to general term 559, 560 Appeals to court of appeals from adjustment 560 Referee no power to grant costs 287 On review of referee's report, discretionary 334 Judgment for ...,.., , ,, 63G COUNSEL FEES: Not taxed as costs 499 COUNTER-CLAIM : J idgment on, admitted 641, 642 CREDIBILITY . Usually a question for the jury 176 When court should charge as to credibility of witness 176, 177 CREDITORS' SUIT : Costs in 474 CRIME : Challenge for 104 CRIMINAL CONVERSATION: Costs in action for 464 CROSS-EXAMINATION : When the right to cross-examine exists 130 Value of cross-examination 131 Purpose of 131 In what the credibility of a witness consists 132 Danger of unskillful cross-examination 132 Relevancy of questions asked on 133 Cross-examining witness as to writings 133 As to representations made by witness 134 Witness cannot be cross-examined as to the contents of a paper which is neither produced nor its absence accounted for 135 Cannot be cross-examined as to conviction for crime 135 Effect of cross-examining witness as to books or papers 136, 137 Valid objection to evidence not waived by subsequent 137 Power of court over extent and character of 137 Excluding disparaging questions on 137 Time of, discretionary with court 137 Recalling- witness for, discretionary 138 Where cross-examination of witness becomes impossible, his evidence in chief must be struck out 138 INDEX. 769 DAMAGES. PAGE . Duty of jury to assess at trial 191 Double and treble damages, how assessed 191 When interest may be allowed as part of damages 191 Assessment of, in replevin 192 When separate damages may not be awarded 189 Excessive damages, when a ground for new trial 411 Inadequate damages, when a ground for new trial 413 Assessment of, by clerk on default 646 Assessment of, on application to court 654 Assessment of, by sheriffs jury 655 Assessment at circuit _ 664 Assessment by reference _ 665 DEATH: Effect of death of referee on reference 335 Effect of death of party to reference 336 DECISION: Of court on trial of issues of fact 216 Form and contents of 216 Cannot be given, subject to opinion of general term 217 Conclusiveness of 217 When to be rendered 218 Statement of facts found • 218 Statement of conclusions of law 219 Preparing and settling . , 219 Filing 219 Judgment on 220 Exceptions to 222 Of court on trial of issues of law 230 Or judgment on demurrer 230 Filing 232 Service of copy of 232 Interlocutory 348 DECREE : Application for special order or decree 571 Application for settlement of decree 576 Interlocutory decrees 338-393 Judgment on interlocutory order or decree 696 DEFAULT : Judgment bt 638-672 Who may take judgment by 61, 638 Judgment on default of plaintiff 61, 639 Of defendant to answer 62, 640 Form of judgment on failure to answer 618, 619 Partial default to answer 641 Defendant's non-appearance on trial 642 Plaintiff's failure to reply 642 Judgment without application to court, on , 63, 644 Judgment on application to court, on 561, 648 Vol. HI — 97 770 INDEX. DEFAULT — Continued. page. Opening 63 > 665 What relief granted in case of 563 DEMURRER : (See Trial of Issues of Law.) Notice of argument of 227 Papers on argument of 228 Argument of 229 Decision or judgment on 230 Withdrawing 230 Pleading over after 231 Amendment after 231 Proceedings after decision on 232 Taxing costs on 235 Entering judgment on 236, 611, 619 Appeals from decision on 236 Costs, when demurrer interposed on trial 473 Costs on 475 To evidence, obsolete under Code 83 As an admission of facts in pleading 85 DEPOSITION : Motion to suppress, how made 78 Costs allowed for taking 483 DICTA : How far authority 592 Circumstances augmenting value of dictum 593 Circumstances that may lessen the value of dictum 593 Obiter opinion valueless when opposed to direct authority 593 DISBURSEMENTS : Taxed as part of costs of action 500 What are : 500 Pees of officers 500 Fees of referees 501 Fees of stenographers 501 Fees of clerk 501 Fees of sheriff 501 Fees of witnesses 501 Traveling fees 503 Fees of commissioners, etc., on taking deposition 504 Costs of reference 504 DISCONTINUANCE : Costs on 526 Judgment on 695 DISCOVERT : Costs on motion for 509 DISCRETION : Matters within the discretion of the court 210 Allowing or refusing to allow parties to introduce evidence after resting, or summing up 210 INDEX. 771 DISCRETION— Continued. page. Allowing additional evidence after motion for nonsuit 211 Allowing or refusing to allow witness to be recalled 211 Allowing or refusing to allow leading questions 211 The nature and extent of cross-examination 211 Limiting number of witnesses on a collateral issue 211 Refusing to receive demurrer to evidence 211 No exception will lie to exercise of 211 New trial, when granted for error in exercise of 415 When the allowance of costs a matter of 469, 471, 512, 517 Rules governing exercise of, in allowing costs 472, 513, 517 DISMISSAL: Costs on dismissal of action 482, 484 Improper demand for relief does not warrant 607 Form of judgment of 620 DIVORCE : Action for divorce on ground of adultery, referable on consent 252 Compulsory reference cannot be ordered where issue has been raised on question of adultery 252 Parties may select referee to try the issues in action for 271 Interlocutory reference in action for 345, 581 What matters referred in action for 581 Application for reference in action for 581 Order of reference in action for 581 Proceedings on reference in action for 581 Report of referee in action for 582 Application for judgment in action for 563, 582 Costs in action for 475 Relief to defendant in action for 610 Form and contents of judgment of 628 Opening default after judgment for 667 DOCKET : Docketing judgments 721 DOWER: Costs in action for 475 DOUBLE COSTS: Right to recover, existing under Code 489 To officers 490 How obtained 491 DRAWING JURY: Mode of 91 EJECTMENT : Statutory provisions as to new trial in actions for 417 Third trial, when ordered in 417 Time within which to move for new trial in 418 New trial may be granted in, independent of statute 419 Form of judgment in 622 772 INDEX. ENTRY" : page. Of judgment 703 EQUITY : Costs in actions for equitable relief 471 ESTATES: Costs, when charged against 532 Costs, how allowed against 535 EVIDENCE: Importance of examination of evidence before trial 116 Burden of proof (See Burden of Proof ) 117-123 Writ of view abolished 123 Plaintiff's evidence 124 Calling, swearing, and examining plaintiff's witnesses 124 Plaintiff should exhaust his testimony before resting 124 Defendant's evidence 125 General mode of introducing evidence for defendant 125 Evidence in reply 125 Rebutting evidence 125 What is rebutting evidence 125 General practice as to the introduction of evidence on the trial 125 Discretionary powers of the court as to the time, manner and order of receiving evidence 125 Re-opening case discretionary with court 125 Recalling witness discretionary 126 Limiting number of witnesses on collateral issue 126 Examination of witnesses (See Examination) 126-129 . Direct examination 129 Cross-examination (See Cross-examination) 130-139 Re-examination of witnesses 139 Impeaching witness (See Impeachment) 139-155 In chief, struck out where party has no opportunity to cross-examine 138 When referee may refuse to hear 286 On interlocutory reference 354 Demurrer to, obsolete 83 Not received to contradict an admission in a pleading 84 Testimony given on former trial, as an admission 85 Admission of improper evidence, when a ground for new trial 408 Perjured evidence a ground for new trial 414 Error of witness in giving evidence, when a ground for a new trial 415 Newly-discovered evidence a ground for new trial 416 EXAMINATION: Of witnesses 125-153 General practices as to the examination of witnesses 125 Rules for the examination of witnesses 126 Examination of timid witnesses 127 Of over-confident and over-zealous witnesses 128 Of unfriendly witnesses 128 Impropriety of calling witness whom the adverse party will be compelled to call 128 INDEX. 773 EXAMINATION— Continued. PAOB . Impropriety of asking irrelevant and unnecessary questions 128 Impropriety of taking unnecessary objections 128 Demeanor of counsel on • 129 Rules of court as to the examination of witnesses 129 Mode of conducting direct examination 129 Leading questions ^29 130 Demanding statement of what it is proposed to prove by witness 130 Mode of conducting cross-examination (See Cross-examination) 130-139 Re-examination 2.39 What questions may be asked on re-examination 139 Impeaching" witness (See Impeachment) 139 EXECUTIONS : Fees of sheriff on 547 EXECUTORS : Settlement of accounts of 359 What allowances may be made to, on settlement 359 Allowance of commission to 360 Presentation of claims before 533 Unreasonable resistance to claims by 534. Unreasonable neglect of claim by 534 Effect of refusal to refer claim 535 Referee cannot allow costs against 535 EXEMPTION : From jury duty 9g From jury duty in city of New York 97 EXCEPTION: Defined ' 202 When an exception lies 202 To charge or refusal to charge 182 When an exception does not lie 203 Does not lie to exercise of discretionary power 203 Does not lie to an expression of an opinion in a charge 203 Does not lie to the statement of the reasons for a decision 203 When taken 203 Must be taken at first opportunity 203, 221 To the reception of incompetent evidence 204 To a judge's charge must be taken immediately upon delivery 204 By whom taken 204 Form of 204 Contents of 428 Must be accompanied by a statement of the grounds upon which it is based 205, 223 Must be specific 205, 223 Requisites of valid exception to charge 182, 183, 205 Must point out precise error. » 183. 205 General exception to charge ordinarily unavailing 182, 205, 206 To admission of evidence : 206 To allowance of interest 206 774 INDEX. EXCEPTION— Continued. page. How cured 206 To insufficiency of proof cured by further evidence 206 Cross-examination not a waiver of 207 Direction to disregard evidence a waiver of 207 Express waiver of 207 Bill of 207, 428 Judge may direct that exceptions be heard at general term 208 When judge may direct that exceptions be heard at general term 209 Exceptions to decision of court after trial of issues of fact 222 Nature of exceptions to decision 222 How exceptions to decisions differ from exceptions to rulings on the trial 222, 223 Exception must be to matters of law, and not to findings of fact 223 Time in which to make case or exceptions 223 Service of exceptions 223, 429 Extending time to make exceptions . 224 Necessary to raise questions of law for review 224 Waiver of 224 Exceptions to report of referee 317, 427 Distinction between exceptions to report and to rulings taken on the trial 317, 318 What exceptions only can be taken after judgment 318, 429 Exceptions to referee's findings of facts unavailing , 318 Exceptions to conclusions of law indispensable 318 Who may except to report 319 When to except to report 319 Exceptions to report on all the issues, when taken 319 Exceptions to report other than on the whole issue, when taken .... 319, 383 Extension of time to except 319 How to except 319 Exceptions must be specific 319 Serving and filing exceptions 320 Time in which to serve and file exceptions 320 Extending time to serve and file 320 Filing exceptions with the case 321 On reference other than of the whole issue 330, 383 To report on interlocutory reference 383 Mode of reviewing by exceptions 384 In what cases and on what grounds exceptions lie 385 Who may except 385 How taken, and form of 386 Filing, serving and noticing for hearing 387 Hearing and argument of exceptions 388 Decision on the argument of .' 388 Motion for new trial on 424-433 EXTRA ALLOWANCE : Of costs, as a right 491 Discretionary allowances 494 Costs on application for 509 INDEX. 775 » AOT : Trial of issues of, by court 212- 226 Reference to make inquiries as to facts 365 576 Questions of ' 172 What are questions of _ 172 175 Should be determined by jury 175 When judge may state his conclusions as to 178 Judge cannot be required to express an opinion as to 178 How reviewed 224 FALSE PLEADINGS: Judgment on 612] 613 FALSE IMPRISONMENT : Costs in action for 464 FAVOR : Challenge to the 104 Costs on granting 512 FEES: Or OFFICERS OF THE COURT 545 Fees of the court 545 Old fee bill abolished 545 Of clerk _ 500, 545 Of sheriff ' 501, 546 Of referees 313-317, 501, 549 Of attorneys and counsel 540 Of stenographer 501 Of witnesses 501 Of party as witness 503 Traveling fees 503 Of commissioner taking testimony 504 Of jurors 94 FEIGNED ISSUES: Verdict on 202 Proceedings after verdict on 442 FINE: For non-attendance as juror 92 FINDINGS OF FACT : • Statement of facts found by court 218 Correcting findings of fact 221 By general term not necessary on appeal to court of appeals 224, 451 Exception to, unavailing 318, 329 Mode of obtaining additional findings on settlement of case 327, 333 Effect of attempt to procure additional 328 Where trial is before court 328 Statement of, should be presented to court or referee on submission of cause 327, 328 When not based upon evidence, an error of law 329 Setting aside report of referee for failure to present any findings of fact. . 333 Sending back report to referee for omitting to present 833 776 INDEX. FIREMEN : page. Exemption of, from jury duty 96 FORECLOSURE : Interlocutory references in 347, 368 What matters referred in 577 Reference to compute the amount due in 347 Motion for reference, how made 577 Affidavit on which to move for 577 Order of reference in 577 Proceedings on reference in 578 Confirmation of report in 579 Application for judgment on report 562, 579 Costs in, discretionary 471 Rule as to allowance of costs in 477 Extra allowance in . ." 491, 492, 494 Judgment in 625 Judgment on default in 625 Interlocutory and final judgments in 625 Final judgment may be rendered by court other than that rendering inter- locutory judgment 625 When judgment in, irregular 625 Form of judgment in 626 Reference to sell estate in 372 Time, place and notice of sale 372 Postponement of sale 375 Mode of conducting sale 375 When the estate should be sold in parcels 375 Who may purchase land sold under decree in 376 Resale, when ordered 377 Mode of applying for resale 378 Proceedings on resale 378 Completing sale 379 Reference as to surplus moneys 368 Form of order of reference as to surplus 369 Proceedings on reference as to surplus 370 Costs on reference as to surplus 370 FOREIGN JURY: Under old practice 102 Not necessary under Code 102 FRAUD: When a question of fact and when of law 172 Costs in actions where fraud is alleged 475 FRIVOLOUS PLEADING: Judgment on 612, 711 GUARDIAN AD LITEM: Costs on appointment of, for defendant 483 HEARING : Fixing time of, on a reference 284, 291, 350 Bringing on 291 INDEX. 777 HEARING- — Continued. page. Place of 293, 351 Notice of 293, 353 General course on 294 HUSBAND AND WIFE : How far competent witnesses for or against each other 121 IMPEACHMENT : Modes of impeaching witnesses 139 By cross-examination 140 Extent of cross-examination as to collateral matters for the purpose of . . . 140 "Witness cannot be cross-examined as to collateral matters for the purpose of contradicting him 140 Credit of witness can be impeached only by evidence as to general char- acter 140 Specific acts of immorality not a ground for 140, 142 Who may be sworn as an impeaching witness 141 Extent of knowledge required in impeaching witness as to reputation of party impeached 141 Evidence cannot be manufactured for the purpose of 142 Conviction for petit larceny does not destroy competency 142 Interest does not render incompetent, but may affect credit 142 General bad character not a ground for 142, 143 Bad character for truth the requisite of 143 Asking witness if he would believe prior witness under oath 143 Impeaching witness, on the ground of contradictory statements made out of court 144 Witness need not state what he swore to on former trjal 144 Mode of impeaching witness by showing discrepancy in his testimony on different trials 145, 146, 147 Mode of impeaching witness by showing his hostility 148 Sustaining character of impeached witness 148 When evidence sustaining character of witness is admissible 148, 149 Impeaching witnesses may be impeached 150 Impeaching party's own witnesses 150 Meaning of the rule that a party cannot impeach his own witness 151 Cross-examination of a witness does not ordinarily prevent his impeach- ment • 151 Party may impeach witness whom law requires him to call 151 Party may prove the truth, although it contradicts his own witness 152 Party may show that his witness is mistaken in some points and correct in others 152 Number of impeachipg witnesses called, discretionary with court 153 INFANTS : . . Judgment against infant should provide for day to show cause against it after coming of age 632 Generally allowed six months after coming of age in which to show cause against judgment. ' ■'-' Judgment in proceedings for benefit of infant need not contain provision to show.c: Vol. Ill to show. cause ■ 632 778 INDEX. INFANTS — Continued. page. Extra allowance seldom granted against 497 Costs against 536 INJUNCTION : Costs in action for, discretionary 471 INQUEST: Denned 53 May be taken under present practice 54 In what cases allowed 54, 642 By whom taken 55 Against whom taken 55 Notice of taking 56 When taken 56, 660 When inquest will be irregular 56 Eights of defendant on ' 57, 660, 661 How taken 57, 58, 661 Preparation to take 58 Waiving 58 Opening 58 Who may apply for relief from 58, 663 Irregularity as a ground for opening 59 Relief on the merits, or by way of favor 59, 60 When set aside 60, 663 Terms on opening 60 Appeal will not lie from order opening 61 On reference 296 INQUIRIES : Reference to make 304, 340 Proceedings on reference to make 363, 576 (See Interlocutory References.) INQUIRY: Writ of 643, 656 Notice of 658 Procuring evidence on 660 Proceedings before jury on 660 Inquisition and return 663 Setting aside inquest 663 INSANITY : Of juror a ground for new trial 398 INTENT: When a question of fact and when of law 172, 173, 175 INTEREST : In the event of an action does not disqualify witness 120 When allowed as part of damages 191 Exception to allowance of 206 Allowance of, on accounting 361 Computing interests with rests ,-J62 Allowance of, as cost 468 INDEX. 779 INTERLOCUTORY OR DECRETAL ORDERS: page. Order reserving further directions and reference thereon 338 In what cases order is made 338 Distinction between final and interlocutory decrees 338 Reasons for suspending final decree 339 When interlocutory reference authorized 339 (See Interlocutory Reference.) Order upon interlocutory decision 348 Entry of order on decision 348 Interlocutory decision, how reviewed 348 Proceedings on interlocutory reference 349 Proceedings on reference to take accounts 355 Proceedings on reference to make inquiries 363 Proceedings on reference to sell estates or adjust matters before final judgment 371 Referee's report on order 379 Exceptions to report 383 Final hearing on farther directions upon coming in of referee's report, 389 Judgment on interlocutory decree (See Judgment) 696-702 Interlocutory costs (See Costs) 456 INTERLOCUTORY REFERENCE : Nature of 253 When authorized 339 To make inquiries 304, 340, 576 To make inquiries as to title 340 To make inquiries as to next of kin 341 To take proofs 300, 341 To take accounts, make computations, etc 301, 342, 576 To hear claims 303, 342, 368 Proceedings on reference to hear claims 343, 368, 370 Exceptions to report on claims 344 To sell estates 344, 371 Time, place and notice of sale under 372-374 Postponement of sale under 375 Mode of conducting sale under 375 Completing sale 379 In actions for divorce 345, 367, 581 What matters referred in actions for divorce 345, 581 Application for reference, how made 581 On what papers to apply for, in divorce .' 581 Order for, in divorce 581 Proceedings on reference in divorce 345, 581 Report of referee in divorce 582 Application for judgment 563, 582 In partition 346, 371, 578 What matters referred in partition 579 Motion for, where and how made 579 Affidavit to obtain reference in partition 579 Order for, in partition 579 780 INDEX. INTERLOCUTORY REFERENCE — Continued. page. Proceedings upon reference 580 Report of referee in partition 580 Application for judgment in partition 580 Appointment of commissioners in partition 346 Proceedings and report of commissioners 347 In foreclosure 347, 368 What matters referred in foreclosure 577 To compute the amount due in foreclosure 347 Motion for reference, how made 577 Affidavit to obtain reference in foreclosure 577 Order of reference in foreclosure 578 Proceedings on reference in foreclosure 578 Confirmation of report in foreclosure 579 Application for judgment on report 562, 579 Reference to sell estates in foreclosure 372 Reference as to surplus moneys in foreclosure 368 Order of reference as to surplus moneys 369 Proceedings on reference as to surplus 370 Costs on reference as to surplus 370 To settle issues 300 On judgment by default 30] To compel the making of affidavits 302 To examine title 302, 340 Proceeding's on interlocutory references generally 349 How made 349 Who appointed referee on 349 General powers and duties of referee on 349 Change of referee on , 350 Fixing time and place of hearing 350 Time and place of hearing 350 Parties, how brought before referee 351 Who may prosecute reference 352 What parties should attend 352 Notice of hearing 353 Adjournments 353 Compelling parties and witnesses to attend 353 Compelling production of documents 354 Party may be examined and compelled to produce books and papers 354 Evidence on .• 354 Ordinary rules of evidence applicable to 354 Record evidence may be used on 354 Mode of examination on 855 Proceedings on reference to take accounts 355 Practice on, governed by former rules of chancery 356 How accounts should be brought in 356 Compelling party to bring in 357 Form of the account 356 Examining parties upon interrogatories 357 Practice of examining upon interrogatories obsolete 358 INDEX. 781 INTERLOCUTORY REFERENCE — Continued. page. Proceedings upon accounting 358 Payments by party accounting, how proved 358, 359 Executor may make oath to payments . 359 What allowances may be made on accounting 359 Allowance of counsel fees 359 36O Allowance of disbursements to accountants, agents and receivers 360 Allowance of traveling expenses , 360 Allowance of commissions 360 Allowing and computing interest 361 Interest, how computed on debt due on bond 361 Interest on debts due on simple contract 361 Making rests in account 362 Proceedings on reference to make inquiries 363 In respect to what inquiries are directed 363 When inquiries are usually directed as to persons 363 Mode of making inquiry, usually specified in order 364 Proceedings on inquiry as to claimants against estate of deceased person . . 364. When proceedings by advertisement are resorted to 364 Report of referee on reference to make inquiries as to persons , 365 When reference ordered to make inquiries as to facts 365 When reference ordered to inquire as to titles, liens, etc 365 Mode of proceeding upon inquiry as to title 366 Report of referee as to title 367 Report of referee on interlocutory reference 321, 379 Form, nature and use of report 379 Rules governing, report on interlocutory reference 379 Different kinds of reports 379 Special report 380 G-eneral report 380 Form and contents of report 381 Evidence should not be embodied in report 381 Signing and delivering report 382, 383 Exceptions to report 383 Exceptions, when and how taken 383 Mode of reviewing report by exceptions 383 In what cases, and on what grounds exceptions lie 385 Who may except •• 385 Form and mode of taking exceptions 386 Filing and serving exceptions 387 Noticing for hearing 387 Hearing and argument of exceptions 388 Evidence on the hearing 388 Decision on hearing 388 Sending back report for correction 389 Final hearing on referee's report 389 Effect of interlocutory reference 389 Final judgment, how obtained on report 389 When cause may be heard 390 Who entitled to bring on the hearing 390 782 INDEX. INTERLOCUTORY REFERENCE — Continued. page. Place of hearing upon further directions 390 Practice on the hearing 391 What matters will be considered on the hearing 391 Decision on final hearing 392 Order in aid of decision 392 INTERPLEADER: Costs in action of 476 INTERROGATORIES: Practice of examinining party by means of interrogatories on accounting obsolete 357 IRREGULARITIES: When a ground for new trial 396 ISSUES: Reference to settle 300 JUDGMENT : Proceedings before entering 561 Application for judgment when relief demanded 561 Application necessary in all cases where relief is demanded 561 Application for, where made 561 Application for judgment on default must be made to court 561 Application, when made - 562 Notice of application, when necessary 562 Proceedings on application for 562 Application for judgment on default in foreclosure 562 Proof of filing lis pendens necessary in foreclosure 563 ' Application for, in divorce 563 What relief may be granted in case of 563 What relief may be granted in case of answer 564 Application for judgment on special verdict (See Verdict) 195, 564 Application for judgment non-obstante veredicto 566 Motion in arrest of 566 Application for judgment on verdict subject to opinion of court (See Verdict) 209, 567 In what cases a verdict may be directed subject to opinion of court at general term 198, 567 Application, where made 568 Papers necessary for application 568 Preparation of case and points for general term 199, 568 Contents of case as settled 200 Formal order suspending judgment unnecessary 200 Stay of proceedings 200 Note of issue 568 Notice of motion 568 What questions considered on the hearing 201, 568 What judgment may be given at general term 201, 569 New trial never granted on motion for judgment subject to opinion of court 201, 569 Judgment may be for plaintiff or for dismissal of complaint 201, 569 INDEX. 783 JUDGMENT— Continued. PAGK Proceedings on judgment at general term 201, 569 Entry of order for judgment _ 201 569 Appeal from judgment to court of appeals 201 569 Application on matters or points reserved , 207 570 When order may be made reserving cause for argument or further con- sideration 207j 570 Application for judgment, where made 570 Application for special order or decree 571 When application for special order or decree necessary 571 Orders defined and classified 571 Application for order, where and when made 572 Procuring and settling order 573 Form of order 574 Application for settlement of decree 576 Application for settlement, where made 576 Preparing draft and amendments of proposed judgment 576 Settlement of judgment 576 Re-settlement of judgment 576 Reference to ascertain facts 576 In what cases necessary 576 Reference to ascertain facts in action of foreclosure (See Foreclosure) 577 What matters referred in foreclosure 577 Motion for reference, how made 577 Affidavit to obtain reference in foreclosure 577 Order of reference in foreclosure 578 Proceedings on reference in foreclosure 578 Eeport and confirmation on reference in foreclosure 579 Application for judgment on report 579 Eeference to ascertain facts in partition 579 (See Partition.) Reference to ascertain facts in divorce 581 (See Divorce.) Enlarging time for the entry of judgment 582 Time for entry of judgment may be extended 582 Motion for additional time to enter, when and how made 582 Service of affidavit and order enlarging time for entry 582 Procuring verdict, report, decision, etc 583 What papers necessary on entry of judgment 583 Service of report, etc., with notice of judgment 583 Compelling entry of judgment 583 Object and mode of compelling entry of judgment 583 Delay of clerk in entering judgment does not affect its validity 584 Preparing papers for judgment roll 584 (See Judgment Roll.) 4 What papers constitute judgment roll 584 Who must furnish papers for judgment roll 585 Adjustment and re-adjustment of costs 551, 586 (See Costs.) Notice of adjustment 552, 586 784 INDEX. JUDGMENT — Continued. page. By whom adjusted 586 Effect of omission of notice of adjustment 553, 587 Re-adjustment, when necessary 558, 587 Nature of judgment and the belief 588 Nature and definition of judgment 588 What is a judgment 588 Relations of judgments to the common law 589 Difference between statutory and judicial law 589 Judgments, how far binding as precedents , 590 Dicta, how far authority 592 Distinction between order and judgment 594 Judgments and orders, how distinguished 594 Decision on motion for judgment on frivolous pleading, when an order and when a judgment 594 Decision on an issue of law when an order and when a judgment 596 Joint judgments 597 Distinction between joint and several judgments 597 When a joint judgment may be rendered 597 Joint judgment where all defendants not served 598 Judgment by defendant against joint plaintiffs cannot be severed 598 Entry and effect of joint judgment 598 Effect of entry of joint judgment against party not served 599 Proceedings under Revised Statutes to enforce separate liability on joint judgment 599 Proceedings under Code to enforce separate liability on joint judgment, 600 Summons to show cause, when proper 600 Nature of summons against joint debtor 601 Form, contents and service of the summons 601 Affidavit to accompany summons 601 Pleadings of party summoned 602 Pleadings of judgment creditor 602 Issues, how tried " 602 Form of judgment 602 Separate judgments 603 When a several judgment should.be rendered 603 When joint judgment cannot be rendered against all defendants a several judgment proper 603 Rule of common law as to judgments on alleged joint contract 604 Where separate liability is shown, a separate judgment may be rendered on alleged joint contract 604 When court may give judgment on joint contract for one defendant and against another 604 Test of right to several judgment on joint and several contract 604 On joint and several contract, plaintiff may proceed against defendant served as if sole defendant 605 Separate judgment on several contract alleged to be joint 605 Severing actions or parties 605 When judgment should be against some and in favor of other defendants, 605 INDEX. 785 JUDGMENT — Continued. page. Power to render judgment for or against one or more of several defend- ants not discretionary 605 Judgment between several defendants 605 When relief will be granted as between co-defendants 605 Belief granted on judgment for plaintiff 606 Relief to plaintiff in case of default 606 Relief to plaintiff in case of answer ' 607 Where answer is put in, plaintiff may have any judgment embraced within the pleadings and proof 607 Wrong demand for relief does not warrant dismissal, of complaint 607 Relation of complaint to relief granted. ' 608 Belief to defendant 609 When defendant must notice cause for trial to obtain affirmative relief. . . . 609 Power of court to grant defendant affirmative relief 609 Relations between pleadings and relief 609 Pleadings must show right of defendant to relief 609 Examples of relief obtainable on defendant's pleadings 609, 610 Affirmative relief to defendant in divorce 610 Legal and equitable relief granted in same action 610 Judgment on demurrer 230, 611 Where demurrer is overruled 611 Where demurrer is sustained 611 Pinal judgment against plaintiff on demurrer 611 Pinal judgment against defendant on demurrer 611 Judgment on frivolous or false pleading 209, 612 What judgment may be given on frivolous pleading 612 Relief against false, sham, frivolous and irrelevant defenses may be granted on same application 612 Pleading adjudged frivolous remains a part of judgment roll 612 Pleading good in part cannot be adjudged frivolous 612 Decision on frivolous demurrer, a, judgment on an issue of law 613 Judgment, how entered on frivolous pleading 613 What judgment may be given on a false pleading 613 General denial cannot be struck out as sham 613 Judgment on admitted demands 614 Judgment on stipulations of parties 615 Judgment on verbal agreement valid 615 PoRM AND CONTENTS OF JUDGMENTS '. 616 General form of judgments 616 Essentials of judgments 616 Title of judgment 616 Caption of judgment 616 Recitals of judgment 617 Mandatory part of judgments 617 Form of judgment for plaintiff 618 On failure of defendant to answer 618, 619 On admitted demand 619 On demurrer 619 On verdict 619 Vol. Ill— 99 786 INDEX. JUDGMENT— Continued. page. On report of referee 619 Form of judgment for defendant 619 On dismissal of complaint 620 Effect of dismissal of complaint 620 On failure to reply 621 On the merits 621 Judgments between defendants 621 Judgments for damages or money 621 Form of judgment for money 621 Judgments in action for lands 622 For plaintiff in real action 622 Judgment in actions for chattels 623 For plaintiff in replevin 623 For defendant in replevin 624 Judgments for special relief 625 In foreclosure 625 In partition, essentials of 627 For specific performance 630 Against infants 632 When infant must be allowed a day in which to show cause after his majority 632 Judgment for surrender of documents 632 • Settlement of judgment 633 Defendant who has appeared entitled to notice of settlement of 633 Judgment on appeal 633 Proceedings on judgment in appellate court 633 Court below must adopt judgment of appellate court 633 Where judgment of special term is affirmed on appeal 634 On affirmance of judgment of inferior court 634 On judgment of affirmance, with costs "34 Judgment of reversal 634 Judgment of affirmance and reversal 635 When judgment may be affirmed as to one defendant and reversed as to others 635 Judgment of dismissal of appeal 636 Judgment for costs 636 When judgment for costs may be awarded 636 Appeal from judgment for costs, when proper 637 Setting off costs against recovery 637 Judgment on frivolous pleadings 637 Judgment by default (See Default) 6.38 Who may take judgment by default 638 Where pleadings have been stricken out 638 Where party has been allowed to plead over on terms 638 On default of plaintiff 639 On failure of plaintiff to serve complaint 639 On failure of plaintiff to serve summons on some of the defendants 639 On failure of plaintiff to bring cause to trial 639 On failure of plaintiff to file security for costs 640 index. 787 JUDGMENT— Continued. PACE . On omission of plaintiff to bring in representatives of deceased defendant, 640 On allowance of demurrer to complaint . 640 On allowance of demurrer to reply _ 640 On default of defendant to answer g40 On default of one of several defendants . 640 On default of all the defendants 641 On partial default to answer 641 Where answer contains no denials, but sets up a counter-claim 641 Statement admitting counter-claim . 642 Notice of taxation of costs , 642 On defendant's non-appearance on trial 642 Taking inquest on non-appearance of defendant 642 On plaintiff's failure to reply 642 When failure to reply entitles defendant to judgment 642 Notice of motion for judgment on failure to reply 643 Papers on which to move for judgment on failure to reply 642 Writ of inquiry to assess damages 643 Where judgment may be entered on failure to reply 643 Judgment without application to court 644 In what cases the clerk may enter judgment without order of the court. . 644 Proof of defendant's default 644, 645 If any answer has been regularly served, no judgment can be taken by default 645 Default may be taken when answer irregularly served 645 Full time to answer must expire before application to clerk for judgment, 645 Omission of affidavit of want of answer renders judgment irregular 646 Assessment by clerk, when necessary 646 Notice of assessment by clerk, when necessary 647 Proof of service of notice of assessment 648 Judgment on application to court 648 In what cases it is necessary to apply to court for judgment on default of answer 648 Where the application for judgment must be made 649 Notice of application to court for 649 Judgment taken without notice to defendant after appearance irregular. . . 649, Proof of service of summons and default 649 Proof of plaintiff's demand, when required 650 In actions for special relief court may require proof of plaintiffs demand. . 651 If complaint shows no cause of action it will be dismissed 651 Pacts alleged must support the relief demanded 651 Plaintiff in action for special relief should see that costs are specially granted 651 Proof of demand necessary where summons served by publication 651 Examination of plaintiff respecting payments where defendant is a non- resident 651 Mode of proving service by publication 651 Proof of levy of attachment on property of defendant 651 When plaintiff will be required to file security to abide order for restitu- tion 652 788 INDEX. JUDGMENT— Continued. page. Reference as to facts alleged, where service is by publication 653 Assessment of damages on application for judgment 654 Court may order assessment by jury or referee 654 Court may assess damages 655 When plaintiff may waive his claim for damages in replevin and take judg- ment without assessment 655 Damages in equitable action cannot be assessed by sheriff's jury 655 Assessment must be in county where action is triable 655 Assessment by sheriff's jury, when proper 655 Order for writ of inquiry 656 Order for sheriff's jury • 657 Order for assessment at circuit 658 Notice of inquiry 658 Countermand of notice of inquiry 660 Mode of procuring evidence on the assessment 660 Proceedings on assessment before jury 660 Juror cannot be challenged on assessment '. 661 Evidence admissible on assessments -661 Plaintiff entitled to nominal damages in the absence of proof of actual damage 662 Verdict for defendant will be set aside 662 Inquisition and return 662 Setting aside inquest, when proper 663 Assessment at circuit 664 Assessment by reference 665 Opening default 665 Power of court to open default ; 665 When court will open default 665 Examples of exercises of discretion in opening default C66 Default may be opened to let in unconsionable defense 666 Cases in which default will not be opened 667 Within what time application to open default may be made ' 667, 668 Judgment on service void for jurisdiction may be opened at any time .... 667 Application to open default, where made 668 Affidavits on motion to set aside default 668 Proposed answer should be submitted with motion papers in certain cases, 668 , Order opening default 669 Effect of ordering judgment to stand as security 669 Costs of entering judgment when made a condition of opening default. . . . 670 When appeal will lie from order granting or denying motion to open default 670 Judgment on offer 672 In what cases judgment may be entered on offer 673 At what stage of the action the offer may be made 673 Offer operates as a stay of defendant's proceedings for ten days 673 Offer, by whom made , 673 Offer may be made by defendant or his attorney 674 Offer where joint debtors are defendants 674 Offer by attorney of joint debtors, when valid " 674 INDEX. 789 JUDGMENT— Continued. page. All joint debtors served must join in offer 674 "When judgment entered on offer of one of several joint debtors, binds joint property of all 675 Offer, how made 675 Offer of judgment must be in writing 675 Requisite of offer 675 Offer, where answer sets up a counter-claim . . , 676 Offer must expressly allow judgment with costs 676 Offer, how signed . . : .' 676 Offer, how served , 677 Proceedings subsequent to offer 677 Plaintiffs proceedings not stayed by offer 677 Amendment by plaintiff will not deprive defendant of benefit of offer 677 Plaintiff has ten days in which to accept offer 677 Notice of acceptance 677 Entry of judgment on offer and acceptance 677 Offer not accepted within ten days deemed withdrawn 679 Effect of non-acceptance of offer of judgment 679 What judgments are more favorable to plaintiff than offer of defendant . . . 679 Costs before offer allowed to plaintiff 680 Entry of judgment where defendant allowed costs 680 Defendant's proceedings after offer 680 Offer -to compromise by plaintiff 681 Offer of compromise after counter-claim 681 Time and mode of acceptance by defendant 681 Judgment on acceptance 681 Offer not accepted within ten days deemed withdrawn 681 Effect of failure to recover more favorable judgment than offered 681 Practice on offer 681 Judgment by confession 682 Nature of the proceeding 682 Judgments by confession under the old practice 682 Judgment upon confession under the Code 682 In what cases judgment may be confessed 683 Must be a debt due, to become due, or a contingent liability 683 Cannot be confessed in an action commenced 683 Judgment cannot be confessed for damages occasioned by tort 683 When confession to secure contingent liability valid 684 By whom judgment may be confessed 684 One of two partners cannot confess judgment for both 684 Married woman may confess judgment in respect to her separate property, 685 Confession may be made by public officer as such 685 Confession by lunatic not void but voidable 685 In whose favor judgment may be confessed 685 Person secured must be plaintiff in the judgment 685 Confession to assignee of debtor 685 The statement of liability 686 What statement of indebtedness sufficient 686 Statement of indebtedness for goods sold 687 790 INDEX. JUDGMENT — Continued. page. Statement of liability on promissory note 687 Statement in confession for money lent ' 688 Statement of contingent liability 688 Statement must be signed by defendant 688 Statement must be verified by oath of defendant 689 Statement may be amended 689 The judgment on the confession 690 How entered 690, 692 Effect of insufficient statement. . . .' ' 691 Judgment on debt, payable in installments 691 Costs of judgment by confession 692 Execution on confession of judgment '. 692 Judgment confessed may be enforced by execution 693 Remedy against irregular judgment on confession 693 Who may be relieved against irregular judgment 693 Relief may be obtained by motion 693 Relief by action 694 Relief against confession by lunatic .• 694 Relief against confession by married woman 694 Judgment of discontinuance 695 Judgment on interlocutory decree 696 Entry of judgment on decree 696 Judgment on decree, how rendered .• . . 696 Entry when judgment allowed on the hearing 696 Entry where judgment is not settled on hearing 697 Form and contents of judgment roll 697 Costs not entered in judgment unless adjudged by court 697 Rectifying, amending and vacating judgment on interlocutory decree. 697 How amended before entry or enrollment 697 ' How amended after entry or enrollment 699 Judgment entered may be amended on motion 699 In what respect judgment may be amended on motion 699, 700 Special term may amend judgment of general term as to mere matters of form 700 Correcting judgment by bill of review, when proper 700 Vacting judgment on interlocutory decree - 701 On what grounds a judgment will be set aside 701 Entry and notice of judgment 703 Entry of judgment 703 What judgments may be entered or enrolled 703 By whom judgment should be entered 703 Successful party may be compelled to enter 703 Unsuccessful party may enter judgment on leave obtained 703 When judgment may be entered 704 ]/j All issues must be disposed of before entry of 704 Entry nunc pro tunc 704 In what cases the clerk can enter judgment only on direction of judge or report of referee 705 Settlement of judgment in action for special relief 706 INDEX. 791 JUDGMENT — Continued. PAGE . Judgment on verdict 706 Entry of verdict 706 Entry of judgment on verdict by the clerk : 706 Cases where judgment in jury cause may be rendered at general term 706 Entry of judgment on trial of fact by the court 225, 707 When decision of court must be filed 707 Effect of not filing decision 707 Effect of entering judgment before decision filed 707 New trial ordered when decision unreasonably delayed 707 Bequisites of decision • 708 Correcting decision 708 Judgment when entered on decision 708 Judgment must-conform to the decision 708 Entry of judgment on trial of an issue of law by the court 236, 709 Only authority for entering, the decision of judge 709 Judgment entered four days after filing decision 709 Judgment, how entered on trial of issue of law 709 Judgment, on trial by referee , 709 Authority for entering judgment on trial by referee 709 Judgment on report, when entered , 710 Judgment entered on report by clerk , , > 710 Entry of judgment, how compelled 710 Judgment on order for legal relief 710 Judgment on admitted demand 710 On frivolous demurrer 711 On sham pleadings 711 Judgment book 712 Clerk must keep judgment book and enter judgment therein 712 No judgment before entry in judgment book 712 Entry, when made 712 Judgments must be entered within legal hours 713 Lien of judgment, attaches on actual entry 713 Effect of omission to enter judgment 713 Party not prejudiced by omission of clerk to enter 713 Lack of signature of clerk does not affect validity of 713 Judgment roll 714 Judgment roll must in all cases be filed 714 Failure to attach together papers constituting judgment roll, does not affect judgment '14 By whom judgment roll should be furnished 585, 714 Clerk may be compelled to make up judgment roll 714 Contents of judgment roll 584, 715 Judgment roll on failure to answer 584, 715 Order of assessment or writ of inquiry, when a part of judgment roll 715 Order for publication and affidavit a part of judgment roll 715 Amended pleading no part of record 715 Pleading struck out no part of record 715 Bill of costs, affidavits, notice of adjustment, proof of filing lis pendens, no part of judgment roll ' •"> 792 INDEX. JUDGMENT — Continued. page. Judgment roll where answer served '. 716 Judgment roll on dismissal of complaint 717 Judgment roll after trial 717 Judgment roll after hearing at general term 717 Judgment roll on appeal 717 Effect of omissions in judgment roll 718 Signing of judgment roll 718 Amendment of judgment roll 719 Papers may on motion be annexed nunc pro tunc 719 Suspension of entry of judgment 719 When a suspension of entry will be ordered 719 Adjustment of costs (See Costs) 720 Where and at what time costs must be adjusted 720 Notice of adjustment 720 Proceedings on adjustment 720 Ke-adjustment 720 Docketing judgment 721 When a judgment may be docketed 721 Judgments can be docketed only in the hours prescribed by law for trans-' action of business 721 Mode of docketing judgment 722 Docketing transcript in other counties 723 Mode of docketing judgment in different counties 723 Certificate of docket of judgment by deputy clerk 723 Docketing justice's judgments 724 Transcript as evidence of justice's judgment 724 Effect of docketing judgment in creating lien 724 Amending docket 724, 725 Notice of judgment 725 Object of notice to limit time to appeal 725 Actual service of notice of judgment necessary to limit time to appeal. . . 725 At what time notice of judgment should be given 725 Time in which to appeal, how computed 726 Porm and contents of notice of judgment 726 What defects fatal to notice of judgment 726 Copy of report of referee must be served with notice 726 By whom and to whom notice of judgment must be given 727 Judgment secured on appeal 727 Lien of judgment, how suspended pending appeal 727 Proceedings to obtain suspension of lien 728 Notice of motion must be given to the sureties to the undertaking 728 When the motion will be granted 728 Entry of order, and authority therefor 728 Amending or vacating judgments 729 Amending or correcting judgments 729 What errors may be amended 729 Amendment, how made 730 Vacating judgments, 730 What judgments may be vacated 730 INDEX. 793 JUDGMENT— Continued. page. Toid judgment may be set aside at any time 730 Actual injury need not be shown by party seeking to set aside void judg- ment 730 If the court has jurisdiction, judgment not void, and the remedy is by appeal 731 Judgments obtained by fraud may be vacated 731 Examples of fraudulent judgments 731 Delay fatal to motion to set aside fraudulent judgment 731 Irregular judgments may be set aside if moving party is guilty of no laches 732 What considered, on motion to set aside irregular judgment 732 Unauthorized judgments may be vacated at any time 732 Opening judgment in action commenced by publication 732 Proceedings to obtain order vacating judgment 733 Who may move to vacate a judgment 733 When to move to set aside judgment 733 Where to move to set aside judgment 734 On what papers motion to vacate should be made 734 Requisites of affidavit on motion 734 Stay of proceedings pending motion 735 Proceedings on order vacating judgment 735 Form and contents of order vacating judgment 735 Piling transcripts showing that judgment lias been vacated 735 Serving order on sheriff to stay execution , . 735, 736 Terms imposed on vacating judgment 736 Restitution, when ordered 736 (Motion in arrest of judgment 736 When an arrest of judgment ordered under former practice 737 Lien of judgments 737 What judgments may be a lien 737 Judgment must direct payment of money to operate as a lien 737 Lien of judgment, how secured 737 Lien secured only by docketing 737 Lien of judgments of the federal courts 738 Extent of lien J 738 To what estates in land the lien attaches 738 Priority of liens of judgments 739 Duration of liens of judgments 739 When lien ceases as against purchasers in good faith 739 When lien ceases as against debtor, and those holding under him 740 How far appeal or injunction extends ; duration of lien 740 , Suspension of lien 740 Suspension of lien on appeal 741 Suspension of lien by imprisonment of debtor 741 Lien restored where order vacating judgment is set aside 741 Extinction of lien 741 Lien, how extinguished - 741 Satisfaction of judgment extinguishes lien 741 Part payment, accepted in satisfaction of judgment, will not release lien . . 742 Vol. III. — 100 794 INDEX. JUDGMENT— Continued. page. Payment of judgment by stranger may or may not extinguish lien 742 Payment of judgment by one of several defendants jointly liable extin- guishes lien '42 Tender of money due on judgment does not extinguish lien 742 When levy and sale under execution extinguishes lien of 742 Effect of recovery of second judgment on lien 743 Lapse of what time will extinguish lien 743 Setting off judgments 744 What judgments may be set off ' 744 A judgment in rem may not be set off 744 When assigned judgments may be set off , 745 Judgment appealed from cannot be 'set off pending appeal 745 Proceedings to obtain set off of judgments 745 Set off may be obtained by motion or action 745 Motion for set off, where made . 746 Motion papers 746 Where judgment set off is satisfied, court will order it discharged 746 Satisfaction and discharge of judgments 747 Acknowledgment of satisfaction 747 When satisfaction must be acknowledged 747 By whom satisfaction may be acknowledged 747 Power of attorney to acknowledge satisfaction 747 President of corporation may execute satisfaction piece 747 Satisfaction, how acknowledged 748 Compelling acknowledgment of satisfaction 748 When acknowledgment of satisfaction may be compelled 748 Who may apply for order compelling satisfaction 748 When acknowledgment of satisfaction ordered 749 Porm of satisfaction piece 749 Entry of satisfaction 750 Entry on satisfaction piece _ 750 Entry on sheriff's return 751 Entry on sheriff's certificate 751 Entry on certificate of reversal 751 Vacating satisfaction 752 When satisfaction will be vacated 752 Canceling satisfaction 752 Unauthorized cancellation 752, 753 Costs allowed on entry of 460 Costs on application for, at general term 516 JURISDICTION: v Objections to, may be taken at trial 77 Of causes on calendar after they have been called and passed 84 Of justices' courts, as affecting costs 465 JURORS : Qualifications of (See Jury) 89 JURY: Trial by (See Trial by Jury) 14, 211 INDEX. 795 JURY — Continued. page Qualifications of jurors 89 Qualifications of jurors in New York city .' 90 Summoning and enforcing attendance of 91 92 Time of drawing 91 Mode of drawing g^ Time of summoning 92 Punishment for non-attendance 92 Pine for non-attendance 92 Drawing and summoning additional jurors 93 Alien cannot serve on 93 Pees of jurors 94 Calling and swearing 95 Mode of obtaining 95 What persons are exempt from jury duty 96, 99 "Who are exempt from jury duty in the city of New York 97 Talesmen, how and when summoned 99 "When a special or struck jury will be ordered 100 Struck or special jury ordered only in extreme cases 100 Cases in which a struck jury has been denied 100 Notice of striking jury 101 Mode of striking jury 101 Proceedings to strike jury when clerk is disqualified 102 Party obtaining order must pay expense of striking jury. 102 When foreign jury was summoned under former practice 102 Poreign jury unnecessary under Code 102 Want of proper jury a ground for new trial 397 Challenging jurors (See Challenge) , 111, 302 Withdrawing juror, effect of 166 Questions for 177 Charge to 178 Consultation of 186 How kept while deliberating on verdict 186 Right of jury to take documentary evidence to jury room 186 Judge cannot communicate with jury in jury room 186 Persuading jury to agree ■ 185 Mode of deliberation of 185 Jury not allowed to decide verdict by chance 186 Keeping jury together 186 Effect of separation of jury before verdict 186 Misconduct of 187 What misconduct of, will vitiate verdict 187 Discharge of jury for failure to agree > 188 Verdict of (See Verdict) 188 When jury may return sealed verdict 192 JUSTICES' COURTS: Jurisdiction of, as affecting costs 465 Costs in actions commenced in 467 Costs on appeal from 523 796 INDEX. LAW : page. Trial of issues of 227 Questions of, how raised for review 224 LIBEL: Costs in actions for 464 LIEN: Of attorney for costs 541 Eights of lien against third parties 542 Of judgments 737 Of judgment, suspended on appeal 727 LIS PENDENS: Proof of filing necessary on application for judgment in foreclosure 563 MALICIOUS PROSECUTION": Costs in action for 464 MILITIA: When exempt from jury duty 96, 98 MINISTERS: Ministers of the gospel exempt from jury duty 96 MISCONDUCT : Of jury, effect of 187, 399 Of prevailing party, when a ground for new trial 398 MOTIONS: Costs on 505-511 Costs on motion for new trial , 511 MUNICIPAL CORPORATIONS : Costs in action against 481 NEGLIGENCE: When a question of fact and when of law 171. 173 NEW TRIAL : Motion foe 394 General rules applicable 394 Denned 394 Origin of 394 Use of the remedy 395 How far discretionary 395 For irregularities : 396 Want of due notice of trial a ground for 396 What will be deemed a waiver of the defect 396 Unfair selection of jury a ground for 397 Unintentional mistakes in selecting jury do not give party a right to 397 The fact that juror was an alien does not confer a right to a new trial in the absence of proper challenge -397 Relationship of juror to successful party not a ground for 397 Insanity of juror a ground for 398 What misbehavior of prevailing party a ground for 398 Evidence given jury after leaving bar, when a ground for 398 Misconduct of jury a ground for 399 INDEX. 797 NEW TRIAL— Continued. . page. Agreeing upon verdict by lottery a ground for 399 Jurors eating or drinking at expense of prevailing party a ground for 399 Separation of jury without consent of court not per se a ground for 400 Party must show affirmatively that he has been prejudiced by misconduct of jury to obtain 399 On the merits 400 New trials on the merits liberally granted 400 Power of supreme court to grant 400 Discretionary power to grant, not reviewable 400 One of several defendants cannot obtain 400 Not granted for part of the cause of action 400 May be granted as to one of several defendants in action for tort 400 Absence of material witness rarely a ground for 401 Neglect of agent or attorney not a ground for 401 Erroneous refusal of motion to postpone a ground for 401 Surprise on the trial, when a ground for 401 Not granted where surprise could have been reasonably anticipated 402 Surprise must be as to matter of fact to entitle party to 403 Will be granted where verdict is against law , 403 Verdict against evidence a ground for 403 On report of referee when contrary to evidence 403 On verdict of jury unsupported by evidence 404 Verdict for defendant in actions for penalty, slander, libel, etc., not dis- turbed though against weight of evidence 404 What disregard of evidence will demand new trial where there is a con- flict of testimony 405 Disregard of express charge of court a ground for 405 Error in charge, to possible prejudice of party, a. ground for 405 Ambiguous charge, calculated to mislead, a ground for 406 Submitting, to jury a question not put in evidence, a ground for 406 Taking proper question from jury a ground for 406 Improper charge, not affecting verdict, no ground for 406 Expression of opinion by court on matter of fact not per se a ground for, 406 Misapprehension and misdirection of court as to material facts a ground for 407 Refusal to charge on important point a ground for 407 Omission to charge, when not requested, no ground for 407 Nonsuit, improperly granted, a ground for 407 Refusal to nonsuit, when and when not a ground for 407 Admission of improper evidence, under objection, when a ground for 408 When admission of improper evidence not a ground for 409 Rejection of proper evidence, to possible prejudice of defeated party, a ground for 410 Excessive damages, when a ground for 411 Rarely granted for excessive damages in actions for personal injuries 411 Rarely granted for excessive damages in actions for slander, libel, assault and.battery, malicious prosecution, seduction, crim con., etc 411, 412 Inadequate damages, in rare cases, a ground for 413 798 INDEX. NEW TRIAL — Continued. ■ page. Motion for, on ground of inadequate damages, may be made on judge's minutes , 414 Verdict rendered on testimony of perjured witness a ground for 414 When error of witness in giving testimony will authorize 415 Improper exercise of discretion by court, when a ground for 415 "When authorized on ground of newly-discovered evidence 416 Newly-discovered evidence, when not a ground for 416 Rule, as to granting on newly-discovered evidence, not well denned 417 No appeal from order granting or refusing new trial on ground of newly- discovered evidence 417 When granted in ejectment 414 Time in which new trial may be had in ejectment 418 Statutory right to new trial in ejectment still existing 418 Real actions in which statutory right to new trial is not given 418 Number of new trials in ejectment not limited 419 On consent, not a matter of right 419 In equity cases 419 Proceedings to obtain new trial 420 Proceedings at common law 420 Proceedings under the Code 421 Proceedings to obtain new trial in jury cases 421 Motion for new trial under sections 264, 265 of the Code, authorized only where trial has been by jury 421 Right to new trial not barred by remedy by appeal 421 Motion for new trial after verdict, how made 421 Proceedings to obtain, where trial is by court 421 Review of decision of judge, on the merits, prior to 1867. . . 421 Review of interlocutory decision of judge on a trial of issue of fact by motion for 422 Effect of amendment of section 268, in 1867 422 When granted on minutes of court 423 Motion on the minutes must be made at trial term or circuit 423 Motion when to be made on case or exceptions 424 Form and contents of case on motion for 424-428 What exceptions are available on a motion for a new trial 429 Time for taking exceptions 429 Amendments to case, how and when made 430 Settlement of case >. 431 Waiver of objections to case or amendments 431 Discretionary powers of judge on settlement of case 431 Settlement of case a judicial act 432 Mandamus will lie to compel settlement of case 432 Re-settlement, how procured 432 Filing case, when settled : 433 Motion on judge's minutes, where made 433 Motion on case or exceptions, where made 433 When motion must be made at general term 433—435 When motion must be made at special term 434 Motion may be made after entry of judgment , . . . . 435 INDEX. 799 NEW TRIAL— Continued. PAGE . Motion, how made 436 Stay of proceedings until hearing 436 Who may grant stay, and for what time 436 In what cases motion for new trial may be made on affidavits alone 437 What affidavits may and what may not be received to impeach verdict of J ur y 437-439 Affidavits of jurors admissible to sustain verdict 439 Notice of motion for new trial 439 Opposing motion for new trial 439 Practice on the hearing of a motion for new trial 439 Placing cause on the calendar 440 Entry of decision of motion 440 Effect of granting new trial 440 Costs, where new trial is granted 441 Vacating order denying new trial 442 Proceedings after verdict on feigned issue 442 Proceedings if new trial granted 441, 442 Second or other new trial 443 Third trial, when granted 443 Appeal from order granting or refusing 443 Appeal, where and how heard 444 When a new trial will be denied 444 Denial of motion founded on improper admission of testimony 444, 445 Denial where reason of decision wrong, but decision right 444 Denial where parties consent to deduct excess of damages 445, 448 Objections not taken below not available on motion for new trial .. 445 Objections which could not have been obviated if raised below, when avail- able 446 New trial not granted to correct harmless errors 446 Error which may have been prejudicial a ground for 447 Where amount of controversy trivial, new trial denied 447 When new trial will be denied in action for penalty 447 Motion of defendant denied where defense is unconscionable 448 Costs on new trial (See Costs) 441, 448 Preparing case for court of appeals 449 Appeal, when advisable from order granting or refusing 449 Case, how prepared for court of appeals 450 Settlement of case ' , 450 Stay of argument of appeal to move for re-settlement 451 Contents of case on appeal to court of appeals 451 NONSUIT : May be voluntary or compulsory 156 Mode of obtaining a voluntary nonsuit 157 Mode of obtaining, under former practice 157 Appeal will not lie from judgment rendered on voluntary 157 Compulsory nonsuit, when authorized 157 Compulsory nonsuit may be granted on defendant's testimony 158 Pacts must be clear to authorize 159 800 INDEX. NONSUIT— Continued. page. Uncontradicted testimony cannot be disregarded and nonsuit ordered 159 Must be denied if plaintiff entitled to recover any thing 160 Evidence for plaintiff which has been stricken out, no bar to 160 Plaintiff may be nonsuited as to one cause of action and recover as to another '. 1 60 ' Plaintiff may be nonsuited as to one of several defendants and recover as to the rest 160 When motion for nonsuit may be made 161 Grounds for motion must be distinctly stated 161 Decision of motion for 162 When the motion for a nonsuit must be granted 162 When the motion for nonsuit should be denied 163 Effect of granting a nonsuit 163, 407 Power of referee to grant. 297 New trial ordered when nonsuit improperly granted 407 Denial of motion for, when a ground for new trial 407 NOTE OP ISSUE : Porm and contents of 39, 40 Duty of clerk on filing 39, 40 NOTICE: Of sale in foreclosure 372 Of judgment ' 725 NOTICE OP TRIAL: General rules as to 24 When indispensable 24 New notice must be given for each circuit 25 English practice as to . . • 25 Who may give 6, 26 By whom given where there are several defendants 26, 215 To whom given 27, 215 When given 6, 28, 215, 228, 284 Time in which to make personal service of 28 Time in which to make service by mail 28, 29 Effect of giving notice before right to amend has expired 28 Time to give, in actions for divorce 28 Por what term given 29 Por what day of the term given 29 Must be given for adjourned circuit 29 Short notice of trial, when allowed 29 Pules as to short notices of trial 30 Effect of omission to give 30 Effect of irregular or insufficient notice 31, 396 Remedy against defective notice 31 Waiver of defects in \ 31 Plaintiff must move cause if noticed 32 Contents of notice by defendant 32 When notice cannot be properly given 32 | Requisites of 33 INDEX. 801 NOTICE OF TRIAL— Continued. page Sufficiency of, how determined 33 Examples of sufficient notice 33 34 Service of _ 27 35 Effect of service of 36 Renewing .' 36 ; 37 Countermanding 37 Time and mode of countermanding notice 37 Effect of countermanding 37 38 Costs where notice is countermanded 37, 38 Proof of service of 39 Want of due notice, a ground for new trial 396 OATHS : Power of referee to administer 289 Oath of witness on reference 295 OBJECTIONS : Object of, to lay foundation for exceptions 202 To the reception of incompetent evidence, when taken 204 To be available must betaken at first opportunity 203, 445 Which could have been obviated below cannot be taken for the first time on appeal 204, 445 How taken 204 Must be accompanied with statement of grounds • 205 No ground of objection available which is not stated 205 Waiver of 207 OFFER : Judgment on 672—682 Nature of proceeding 672 In what cases and at what stages judgment may be taken on 673 By whom made 673 How made 675 Proceedings subsequent to 677 To compromise by plaintiff 681 OFFICERS : What officers exempt from jury duty 96-99 Fees of 500 ORDERS (See Interlocutory or Decretal Orders) : Distinction between judgment and order 571, 594 Defined and classified 5/1 Application for special order or decree 571 Application for special order, when and where made 572 Procuring and settling order 573 Form of order 574 Judgment on "96 PARTIES : To action, when and when not competent as witnesses 121 Proceedings, where there is a defect of 153 Proceedings on defect of parties plaintiff 154 Vol. III. — 101 802 INDEX. PARTIES— Continued. page. Proceedings on defect of parties defendant , 154 Bringing in 78, 155 Objections to non-joinder of, may be taken at trial 78 Waiver of objection to want of 78 PARTITION : Interlocutory reference in 346, 371, 579 What matters referred in 579 Motion for reference, where and how made 579 Affidavit to procure reference in 579 Order for reference in 579 Proceedings upon reference 580 Report of referee in 580 Application for judgment in 580 Essentials of judgment in 627 Costs in 477 Extra allowance in 491, 492 PENALTY : When new trial granted in action for 447 PENDENCY OE ACTION : Proof of filing, on application for judgment in foreclosure 563 PEOPLE : Liability of, for costs 537 PHYSICIANS : When exempt from jury duty 98 PLEADINGS : What two objections may be taken to, on trial 79 When objections should be taken at trial 79 Answer cannot be struck out on trial as insufficient 79 Motion for judgment on 81, 82, 89 Time in which to move for judgment on 83 Admissions in, cannot be contradicted by evidence on trial 84 Supplemental pleadings a substitute for plea puis darrein continuance 87 Relations between pleadings and judgment 608, 609 Judgment on demurrer 611 Judgment on frivolous and false pleadings 611 POLLS: Challenge to 104, 107 POSTPONEMENT : When postponement of cause may be essential 64 When and how plaintiff should apply for 64 Affidavit to obtain 64 When and how defendant should apply for 65 Grounds for 66-69 Absence of witnesses as a ground for . 66, 67, 68 Lack of documentary evidence as a ground for 68 Absence of counsel as a ground for 68 Arrest of party a ground for 69 INDEX. 803 POSTPONEMENT — Continued. page. Application for , 69 Requisites of affidavit to obtain 69-71 By whom affidavit must be made 71 Opposing application for 72 Offer to admit facts to be established by absent witness 72 Counter affidavits in opposition to motion for 73 Admissibility of proposed evidence not considered on motion for 73 Laches of moving party a ground for denying 73 Decision on application 73 General rules as to granting 74 Terms imposed as a condition of granting 75 When moving party will be required to stipulate 75 Costs of circuit as a condition of 76, 514 Time of payment of costs 76 Requisites and form of order directing 76 Remedy against improper denial of 77 Of hearing on a reference 296 Refusal to postpone trial, when a ground for new trial 401 Costs on 514 PUBLICATION : Application for judgment after service by 651 PUIS DARREIN CONTINUANCE: Under former practice 86 Plea of, superseded by supplemental pleading 87 PROOFS : Reference to take , 300, 341 PROBABLE CAUSE: When a question of fact and when of law 172, 174 QUALIFICATIONS : Of jurors 89 Of jurors in city of New York 90 RECITALS : Of judgment 617 RE-EXAMINATION (See Examination): Of witnesses 139 REFEREE (See Reference ; Interlocutory Reference) : Proceedings to appoint a referee 238 Nature, object and origin of the appointment ; 238 Reference under the Code 242 Proceedings to obtain reference by consent 254 Proceedings to obtain compulsory reference 259 Order of reference 266 Waiver of irregularities in proceedings 269 Who appointed referee 270 General powers of 272 Trial by referees, how conducted 291 Interlocutory references 298, 321 804 INDEX. REFEREE — Continued. page. Eeport of 304, 321 Exceptions to report of 317 Proceedings on report of 322 Reviewing report of 324 Changing 334 Actions against 336 REFERENCE (See Referee) : Defined 238 .Distinction between arbitration and 238 . Nature of 238, 239 When reference will become an arbitration 239 Advantages of 239 Disadvantages of 240 Prior to the Code 240, 241 Under the Code 242 Absolute right of parties to refer issues 242 Right of court to compel 242, 243 In what actions a reference may be had 243 Consent to 244 Who may consent to ■ 244, 246 Form of consent 244 Waiver of written consent to 245 Oral consent, when acted upon, conclusive 245 Proceeding on reference a waiver of irregularities 246 Compulsory references 246 Cases in which a compulsory reference may be ordered 247 When the trial of an issue of fact requires the examination of a long account 247 Where the taking of an account is necessary 247 On failure of the defendant to answer 247 Upon judgment for defendant upon an issue of law 247 To assess damages arising from injunctions 247 To take affidavits to be used on motion 247 Power to order compulsoiy reference confined to actions on contract in- volving examination of long account 248 Account must be directly and not collaterally involved to authorize a compulsory 248 Where some of several issues involve the examination of a long account, all may be referred *. 249 Compulsory reference not a matter of right 249 When not ordered in equitable actions 249 Cause triable in reasonable time should not be referred 249 Where action not referable, answer cannot make it so 250 What is and what is not such an account as will authorize a compulsory reference 250 When the court has no power to compel ■ 250 Not ordered, where trial will require decision of difficult questions of law 250 INDEX. 805 REFERENCE— Continued. PAGE . Not ordered in actions not arising on contract 251 Not ordered where examination of a long account is not involved 251 Not ordered where action sounds in tort 252 Not ordered in action for divorce, on ground of adultery, where adultery is denied 252 On default, in action for divorce 253 Interlocutory (See Interlocutory Reference) 253 Proceedings to obtain reference by consent 254 Form of consent to _ 254 Attorney may authorize 255 Waiver of irregularities in giving consent 255 Referee, when named in consent 255 Application for order for, on consent 256 Notice of application 256 Application must be to court at special term 256 Form and entry of order 256-258 Indispensable that order be regularly made and entered 256, 257 Service of order of 258 Effect of order of 258 Construction of order of 258 Appeal from order of 259 Proceeding's to obtain compulsory reference 259 When to apply for compulsory reference 259 Application premature if cause not ready for trial 259 When to apply for reference in foreclosure 259 Application premature while issue of law pending 259 Application may be made immediately on joinder of issue 259 Application should be made before notice of trial 259 , Effect of laches in applying for 260 Where application should be made for 260 Notice of motion for 260 Affidavits on which to move for 261 Practice, on motion for 262 Affidavits in opposition to motion for 262 Opposing motion on pleadings 263 Parties should stipulate who shall be referee if the court shall order a reference 263 Reference on motion of the court 265 Power of court to order reference on its own motion 265 When an order directing a compulsory reference is appealable 265 When the decision of the judge granting order conclusive 265 Order of 266 Importance of entering order of 266 Form and contents of order of 266 When a joint reference will be ordered 267 Entry and service of 26 ^ Certified copy of order of reference should be served on referee 268 Order neednot be- served upon adverse party 268 Effect of order of 268 806 INDEX. REFERENCE— Continued. page. To whom reference may be directed 268 Waiver of irregularities in proceeding ■ 269 Waiver of irregularities in reference by consent 269 Waiver of irregularities in compulsory reference 269 Disregarding order of 269, 270 Who appointed referee 270 Clerk or counselor usually appointed referee 270 Persons skilled in particular science when appointed referees 270 Referee should be disinterested 270 When referee selected by parties appointed 271 Judge as referee 271 Residence of referee 271 Referee in actions for divorce 271 Number of referees 272 General powers of referees 272 Power of referee governed by nature of reference '. 272 When referee has powers of master in chancery 272 When' referee has power of court 273 Power of referee derived from statute 273 Referees possess no powers by implication 273 Referees bound by decision of court at general term 273 Referee must act in proper person 274 Improper influence of successful party a ground for setting aside report of referee 274 What is deemed improper influence 274, 275 Referee has power to dismiss action where complaint does not show a cause of action 275 Referee may strike out pleading of party for refusal to be sworn, etc 275 Have same power as court to allow amendments 276 Referee may allow party to set up new cause of action or a new defense . . 277 Disregarding variances (See Variance) 277 Power to compel attendance of witnesses 278 Proceeding ex parte 279 Mode of examination on trial , 279 Trial by referee conducted in same manner as trial by court 279 Discretionary powers upon the trial 280 Referee may take testimony subject to objection 280 Proceedings where reference is to take account 280 Where reference is to report upon specific question of fact 281 Contempts, power of referee to punish 281 Power of referee to punish for contempt not exclusive 281 Opening cause to hear further testimony discretionary 281 Fixing time of hearing 284 Power of referee to grant adjournments 284 Grounds for an adjournment of the reference 285 Unreasonable adjournments, a ground for removing referee 285 Referee cannot be sworn as a witness 285 Refusing to hear evidence ; 286 INDEX. , 807 REFERENCE— Continued. PAGE . Referee has no power to order the production of books and papers 287 Referee has power to punish refusal to produce books and papers where party has been duly subpoenaed 287 Granting allowances 287 Referee may allow costs in equitable actions 287 Referee has no right to award costs when regulated by statute 288 Referee cannot award costs against executors, etc 288 Referee cannot grant extra allowance of costs 288 Altering report. .' 288 "When power of referee to alter his report ceases 288 Administering oaths 289 Power to administer oath derived from power appointing him 289 Control of court over referee 290 Discretionary powers of referee 290 Trial by referees, how conducted 291 Bringing on the hearing 291 Appointment of hearing 291 Securing evidence for trial 292 Place of hearing 293 Notice of hearing 293 Referees must all be present at the hearing 294 Referees should be sworn 294 General course on the hearing 294 Swearing witnesses 295 Taking down evidence 295 Duty of referee to be present at examination of witnesses 295 Committing witness for refusal to testify 296 Proceedings on default of either party 296 Postponement of hearing 296 Terms imposed on postponement 296 Court will interfere to prevent unreasonable postponement 297 Disregard of variances 297 Granting nonsuit 297 What questions the referee may consider on the hearing 298 Interlocutory references (See Interlocutory References) 298 The report (See Report) 304 Distinction between certificate and report 305 Form and contents of report 305 When the report must be made 307 Compelling report 309 Report, how agreed on 309 Report upon all the issues 309 Report upon particular questions 311 Report on title 313 Delivery of report 313 Alteration and amendment of report 313 Conclusiveness of report 314 Construction of report 314 Confirmation of report. 315 808 INDEX. REFERENCE — Continued. page. Referee's fees 315 Assigning report 317 Exceptions to report (See Exceptions) 317 Distinction between exceptions to report and exceptions taken on the trial, 317 Nature of exceptions to report 317, 318 Who may except to report 319 When to except to report 319 How to except to report 319 Serving and filing exceptions 320 Report on interlocutory reference 321 (See Report ; Interlocutory Reference, etc.) Form and contents of report 321 Confirmation of report 321 Proceeding's upon report, on reference of all the issues 322 Filing report, serving copy, and perfecting judgment 322 Notice of report and judgment 322 Entry of judgment on report of all the issues 322, 323, 709 Proceedings upon report on specific questions 323 When clerk may enterjudgment on report 323 Adjustment of costs subsequent to entry of judgment 323 All the issues must be disposed of before judgment can be entered 323 Reviewing 1 report (See Appeal; Exceptions) 324 Appeal, the only mode of reviewing judgment entered on report of referee on all the issues 324 Preliminaries to appeal 324-326 Obtaining additional findings of facts 327 What errors will be subject to exception 329 Principles upon which judgment will be rendered on appeal 330 Setting aside report on appeal 332 Setting aside report on motion 333 Correction of report 333 What errors in the report the court may correct 333 When the referee may correct his report on his own motion 333 When the court may send a report back for correction 333 Costs on review of report 334 Changing referee 334 Power of the court to change referee 334 When the court will not change referees 334, 335 New referee, when appointed 334, 335 Effect of death of referee 335 Effect of death of parties 336 Actions against referees 336 REPLEVIN : Costs in 463 Fees of sheriff in 546 Judgment in 623 REPORT : Of referee on reference of all the issues 304 index. 809 REPORT— Continued. PAGK Distinction between report and certificate „. . 305 Form and contents of _ 305 Facts found and conclusions of law must be separately stated in 305 Facts found must be sufficient to support conclusions of law 305 Facts not forming a basis for the judgment need not be stated 306 Issues ignored on the trial need not be noticed in 307 Must be direct, positive and explicit 307 When to be made 307 Should be made withjn sixty days . 307 Parties may exteud the time of making 307 Waiver of objection to delay in making . 307 Time of making report cannot be limited when once extended by the par- ties • 308 Party inducing delay in making, cannot take advantage of the delay 308 When party may elect to end the reference for delay in making 307, 308 Court cannot extend the time to make 308 Court may compel referee to make 309 How agreed on 309 Two of three referees may make report 309 All the referees must be present at the making of 309 On particular questions 311 On title 313 Delivery of 313 Right to payment of fees before delivery of 313 Compelling prevailing party to take report and perfect judgment 313 Alteration and amendment of 313 Conclusiveness of 314 Construction of 314 For purpose of construction whole report must be taken 314 A general conclusion construed as a finding on all material questions 315 Report construed to sustain rather than to reverse judgment 315 Confirmation of the report unnecessary 315 Assigning report 317 Assignee of report may enter judgment in his own name 317 Exceptions to report (See Exceptions) 317 Distinction between exceptions to report and exceptions to rulings on the trial 317, 318 "Nature of exceptions to report 318 Keviewing report (See Appeal) 324 Setting aside, upon appeal 332 Setting aside, upon motion 333 Correction of 333 When report may be corrected by court 333 When correction by referee unauthorized 333 When court may send back report for correction 333 Of referee on interlocutory reference 321, 379 Form, nature and use of 321, 379 Different kinds of 379 Vol. III.— 102 810 IKDEX. REPO RT — Continued. page. Special '. 380 General 380 Form of general report 321, 381 Evidence should not be embodied in 381 Drawing, settling, signing and delivering 382 Confirmation of 321 Filing, perfecting judgment and service of copy 322 Effect of 322 Exceptions to report (See Exceptions) 383 Exceptions, when and how taken and brought to a hearing 383 Final hearing on referee's report 389 Entry of judgment on 323 REQUEST : To charge, when necessary 179 Form of request to charge 179 RESALE (See Sale) : When, or on what grounds a resale will be ordered 377 When inadequacy of price a ground for 377 When a resale will not be ordered 377, 378 Mode of applying for 378 Who may apply for . 378 Proceedings on . 378 RESTS : Computing interest with 362 SALE: Of real estate under a decree 371 Who may sell real estate under a decree , 372 Place of 372 Time of 372, 377 Notice of 372-374 Death of party between notice and sale 374 Statement of conditions of 374 Postponement of 375 Mode of conducting 375 Selling in lots or parcels .. . > 375 Who may become purchasers 375 Resale, when ordered and how made 377 Mode of applying for resale 378 Proceedings upon resale 378 Completing sale 379 SATISFACTION (See Judgment) : Of judgment , ,.. 747 Acknowledgment of 747 When acknowledged , 747 By whom acknowledged , * . . . , 747 How acknowledged 748 Compelling acknowledgment 748 Form of satisfaction piece 749 INDEX. 811 SATISFACTION— Continued. PAGE Entry of 750 Entry of, on satisfaction piece 750 Entry of, on sheriff's return 751 Entry on sheriff's certificate 751 On certificate of reversal 75I Vacating 752 "When vacated ...... 752 Canceling 752 SEDUCTION: Costs in action for 464 SET-OFF : Of judgments 744 SERVICE: Fees of sheriff for service of papers 546 Of writ of possession, assistance, restitution 548 SETTLEMENT: Of decision of court on trial of issue of facts 219 Of case and exceptions 325, 431 Obtaining additional findings on settlement of case 327 What exceptions are subject to amendment and settlement 330 Resettlement 432 Of judgment or decree 576 Eesettlement 576 Of action, costs on 526 Of issues 19 When necessary, and when not necessary 19, 20 Feigned issues abolished 20 Application for 20 Opposing application for 21 Reference for 21 Form of issues as settled 21 SHAM PLEA*DINGS : Judgment on , '11 What judgment may be given on a sham answer 613 General denial cannot be struck out as - 613 What is a sham answer 613 Judgment, how entered on sham pleading 614 What judgment may be entered on pleading false and frivolous 614 SHERIFF: Fees of 501 > 549 Who liable for fees of 549 SLANDER : Costs in action for 464 SPECIAL JURY (See Jury) : When ordered 10 ° SPECIAL PROCEEDINGS : Costs on appeal from 522 812 INDEX. SPECIAL VERDICT : page. What is a special verdict 195, 564 Application for judgment on 198, 564 Costs on application for judgment on 516 SPECIFIC PERFORMANCE: Costs in action for 478 When defendant may have judgment for 609 Form and contents of judgment in 630 SPECIFIC QUESTIONS: Submission of, to jury 190 STAY OF PROCEEDINGS : After special verdict 197 After verdict, subject to opinion of court 200 Pending decision of motion for new trial 210, 436 STENOGRAPHER: To report proceedings in the several courts 83 Fees of 501 STIPULATIONS : For judgment may be enforced 615 STRUCK JURY (See Jury) : When ordered 100 Allowed only in extreme cases 100 Mode of obtaining 101 When clerk is disqualified from acting 102 SUBMISSION OF CONTROVERSY : Costs on 516 SUBPCBNA : Expenses incurred in service of, not taxable as costs 504 SUMMONS : Jurors, h ow summoned 92 SUMMING UP : Rule of court as to ! 167 Privilege of, a matter of discretion 167 Control of court as to mode of 167 Who entitled to closing address 168 By defendant 168 By plaintiff 169 Rules for 169 SURPLUS : Reference as to claims to, in foreclosure 368 SURPRISE : When a ground for new trial 401 TALESMEN: When summoned to form jury 99 How drawn and summoned 99 TELEGRAPH : Operators exempt from jury duty 97 98 INDEX. 813 TEEM PEES: What may be allowed as , 4gg "When not allowable _ 4gg TITLE : Reference to examine 300 340 365 Eeport of referee on 313 307 Mode of proceeding on reference to make inquiries as to 366 When deemed complete 367 Costs, when title to land in question 460 TORTS : Actions founded on or sounding in tort cannot be referred, except by consent 252 Costs in actions for 464 TRANSCRIPT : Docketing 723 TREBLE COSTS: Right to, existing under Code 489 What are 492 Obtained only on motion to court 491 TRIERS : Formerly appointed to try challenges to the favor 109 Oath of 110 Trial by 110 No longer appointed 110 TRIAL: Denned 1 What is and what is not a 2 What is a trial on the merits 2 When a nonsuit is a 2 When a dismissal of the complaint is 2, 3 When the argument of a demurrer is 2 When an application for judgment on a frivolous pleading is 2, 3 What is not a 3 When and by whom an action may be brought to 3 At what time notice of, may be given 3-6 By whom notice of, may be given 6, 7 (See Notice of Trial.) Preference of issues 7-9 What issues preferred 7 Statutory rule as to the order of 8 Calendar practice 9 Trial of the issues in the action 9 Of issues of law 9, 227 Of issues of fact 9, 212 By jury, when a matter of right 10, 17, 247 By jury, when not a matter of right 18 By jury, how waived 11, 12, 213 By referee, when compulsory 10, 11, 247 814 INBEX. TRIAL — Continued. page. By court, when proper 10, 212 Separate trials between different parties 12, 13 When a separate trial will be allowed 12 TRIAL BY JURY: Waiver of 213 Right to waive 213 How parties may waive 213 Waiver of, by failure to appear 213 Waiver of, by written consent 214 Waiver of, by oral'consent 214 What is a waiver of 214 What is not a waiver of 215 When jury trial is necessary 213 Proceedings on a trial by jury 14 Origin of trial by jury 14-17 When a matter of right 10, 17 When not a matter of right 18 Advantages and disadvantages of 19 Settlement of issues of fact for 19 Settlement of issues, when necessary 20 Settlement of issues, when not necessary 19 Application for settlement of issues 20 Form of issues to be tried 21 Trial of the issues of fact 23 Review of errors on the trial 24 Notice of trial (See Notice of Trial) 24 General rules as to notice of trial 24 By whom notice of trial may be given 26 To whom notice of trial must be given 27 At what time notice of trial must be given 28 For what term or time the cause should be noticed 29 Short notice of trial ; 29 Omitting to notice cause for trial 30 Plaintiff must move cause if noticed 32 Notice of trial by defendant 32 When notice of trial cannot be properly given 32 Notice of trial and its requisites 32 Service of notice of trial 35 Renewing notice of trial 36 Countermanding notice of trial 37 Proof of service of notice of trial 39 Putting the cause upon the calendar 39 (See Calendars ; Note of Issue.) Short or special calendars 41 Affidavit of merits 44 (See Affidavit.) When an affidavit of merits necessary 44 When an affidavit of merits not necessary , 45 INDEX. 815 TRIAL BY JURY— Continued. PAOE . When affidavit should be made 45 By whom affidavit should be made 46 Requisites and form of affidavit 47 Filing and service of affidavit 50 Controverting and amending affidavit 51 Calling calendar 52 Practice on calling calendar .52 53 Reserving causes 53 Inquests (See Inquest) '.['...'.. 53 In what cases an inquest may be taken 54 By and against whom an inquest may be taken 55 Notice of taking inquest 53 "When inquest may be taken 56 Rights of defendant on inquest 57 How inquest is taken 57 Waiving inquest 53 Opening inquest 58 Defaults 61 Proceedings on default of plaintiff 61 63 Proceedings on default of defendant 62 63 Postponement of causes 64 (See Postponement.) Grounds of postponement . 66-69 Postponement, how obtained 69-77 Relief if postponement refused 77 Incidental applications 77 Objections to jurisdiction, how and when taken 77 Objecting to non-joinder of parties 78 Suppressing deposition 78 Objections to pleadings on the trial not favored 79 Trial and its incidents 80 When cause may be brought to trial 80 When several trial and judgment proper 80 Reference on the trial 81 Hearing cause out of order 31 Motion for judgment on pleadings 82 Furnishing papers for court 83 Employment of stenographer 83 Demurrer to evidence 83 Jurisdiction over causes called and passed 84 Evidence not received to contradict admissions in the pleadings 84 Party should call attention of court to admissions in his favor 84 Admissions in one answer not available against others 84 Testimony given on former trial when given in evidence as an admission . 84 General practice at the trial 85 Plea puis darrein continuance 86 Supplemental pleading a substitute for plea puis, etc 87 Contempts 87 What acts constitute criminal contempt 88 816 INDEX. TRIAL BY JURY— Continued. page. Where criminal contempts must be punished 88 Judgment on the pleadings 89 The jury (See Jury) 89 Qualifications of jurors 89 Summoning and enforcing attendance of jurors 91 Mode of obtaining additional jurors 93 Fees of jurors 94 Calling and swearing jury .- 95 When court must discharge person called as a juror 96 When and how talesmen may be summoned 99 Special or struck jury, when summoned 100 Special juries not regarded with favor 100 Mode of drawing struck jury 101, 102 Mode of summoning struck jury . . . , 101 Foreign jury, when summoned 102 Challenges (See Challenge) 102 Challenge to array 103 Challenge to the polls 104 Challenge for disqualification 104 Challenge for crime 104 Challenge to the favor 104 Mode of challenging 107 Trial of challenge 108 Peremptory challenge Ill Right to begin Ill Importance of determining right to begin Ill Party holding affirmative generally entitled to begin Ill Test to determine right to begin Ill Party having right to begin must exercise it Ill When plaintiff is entitled to begin 112 When defendant is entitled to begin 112 Right to begin in an action for unliquidated damages 113 Effect of error in determining right to begin 113 Opening case 113 Object of opening case 113 Opening under control of court 114 Proper manner of opening case to jury 114 Effect of imperfect statement of case 114 Opening case by the plaintiff 115 Opening ease by defendant 115 Evidence 116 (See Evidence.) Importance of securing evidence for the trial 116 Preparation of brief 116 Contents of brief 116 Burden of proof (See Burden of Proof) 117, 120 Competency of witnesses 120 (See Competency.) "View 123 INDEX. 817 TRIAL BY JURY— Continued. PAQE . Evidence in behalf of plaintiff .' 124 Party entitled to begin should exhaust his testimony before opposite party is heard 124 Defendant's evidence . 125 Evidence in reply 125 Rebutting evidence . 125 General practice as to evidence on the trial 125 Time, manner and order of receiving evidence discretionary 125 Allowance of further evidence after party has rested discretionary 125 Allowing witness to be recalled discretionary 126 Limiting number of witnesses to be examined as to particular point 126 Rules for the examination of witnesses 126-129 (See Examination.) Direct examination of witnesses ' 129 Cross-examination of witnesses . . .' 130-139 (See Cross-examination.) Re-examination of witnesses 139 Impeaching witness 139-155 (See Impeachment.) Committing perjured witness 155 Proceedings where there is a defect of parties 155 "Waiver of right of defendant to object to defect of parties 153 Duty of court to bring in third parties 153, 154 Proceedings on defect of parties plaintiff 154 Proceedings on defect of parties defendant 154 Bringing in third parties 155 When third party may be brought in on his own motion 155 Bringing in third parties in partition 156 Mode of application to be made a party 156 Nonsuit (See Nonsuit) 156 When a nonsuit is voluntary and when compulsory 156 What is a voluntary nonsuit, and how obtained 156, 157 Plaintiff cannot submit to a nonsuit after jury have left the bar 157 Compulsory nonsuit, when ordered 157-161 Motion for a nonsuit, when and how made 161 Decision of the motion for a nonsuit 162 Effect of granting a nonsuit 163 Withdrawing a juror 164 Object of withdrawing a juror 164 Effect of withdrawing juror 164 Submitting specific questions 164 In what actions specific questions of fact may be submitted to the jury . . 164 Submission of specific questions discretionary with court 164 Parties cannot demand the submission of specific questions as a matter of right 165 Application for finding on special questions must be made bef ore, trial . . . . 165 Variance 165 When a variance between the pleadings and proof is material 165 What is not a variance, but a failure of proof 166 Vol. III. — 103 818 INDEX. TRIAL BY JURY — Continued. page. Material variances 166 Immaterial variances 166 Amendment where variance is material 167 Amendment where variance is immaterial 167 Summing up 167 Rule of court as to the summing up of a cause 167 Privilege of addressing a jury not a matter of right 167 Court may confine counsel to the issue 167 When the court may properly deny the privilege of summing up 167 Party who begins entitled to closing address 168 Summing up by defendant 168 Summing up by plaintiff 169 Rules for summing up 169 Questions for the court 170 Questions of law must be determined by the court 170 Questions arising on uncontradicted testimony must be determined by the court 170 The construction, effect, sufficiency and validity of a contract must be determined by the court 171 Reasonable time, diligence, etc., when a question for the court 171 When the question of negligence is a question for the court ■. 171 Allowance of alimony, a question for the court 171 Delivery of deed, when a question for court 171 Existence of fraud, when a question of law 172 Question of intent, when a question of law 172 Whether a publication is libelous, when a question of law 172 Question of probable cause a question of law 172 Whether a transaction constitutes a stated account, when a question for the court 172 Whether a given state of facts constitute a defense, a question for the court 172 Mixed questions 172 What are mixed questions of law and fact 172 Mixed questions must be submitted to jury under instructions from the court 173 When the facts are not entirely clear, case must go to jury 173, 175 Examples of questions of mixed law and fact 173, 174 General rules relating to instructions to jury on submission of mixed questions 174 Questions for the jury 175 ,A11 questions of fact are questions for the jury : 175 Examples of questions for the jury 175 The charge (See Charge) 176 General principles governing charge to jury 176 177 Charge, as to questions of fact 178 Discretionary with judge to charge jury or not 178 Requests to charge, when necessary 179 Form oi request to charge 179 Party may be required to point out evidence on which request is based. . 180 Duty of court to charge as requested, if at all 180 INDEX. 819 TRIAL BY JURY — Continued. page. Refusal to charge, when proper 181 When the court should direct a verdict 181 Exceptions to charge, or refusal to charge 182 What exceptions to a charge are unavailing 182 Requisites of valid exceptions to charge 183 Consultations of jury (See Jury) 184 Taking documentary evidence to jury room 184 Judge not allowed to communicate with jury during their retirement 184 Persuading jury to agree 185 Judge has no right to threaten or intimidate jury 185 Mode of arriving at a verdict (See Verdict) 185 Keeping jury together 186 Effect of separation of jury before verdict 186 How long jury may be kept together 186 Misconduct of jury, when sufficient to vitiate verdict 187 Proceedings, where jury fail to agree ' 187 General verdict (See Verdict) 188 What is a general. and what a special verdict 188 When a general verdict is proper 188 Requisites of » general verdict 189 When separate damages may be awarded 189 Jury may be required to find upon particular questions of fact 190 Effect of inconsistency between general verdict and specific findings .... 190 Damages, when and how assessed by jury 191 Double or treble damages, how awarded 191 When interest is allowable as part of the damages assessed 191 Verdict in replevin 192 Verdict may be oral or in writing 192 Sealed verdict, when ordered 192 Verdict, how rendered 193 Alteration and correction of verdict ,. . . 193 Polling the jury, a matter of right 193 Jury, how polled , 194 Entry of verdict 194 Conclusiveness of verdict 194 Assignment of verdict 195 Setting aside verdict 195 Special verdict 195 What is a special verdict 195 How a special verdict is prepared 196 Construction of special verdict 196 Amendment of verdict 197 Staying proceedings after special verdict 197 Motion for judgment on special verdict 198 Proceedings after argument of motion for judgment 198 Verdict subject to opinion of court 198 When a verdict may be directed subject to the opinion of the court at gen- eral term 198 Form of verdict subject to opinion of court 199 820 INDEX. TKIAL BY JURY — Continued. page. Preparation of verdict 199 Suspending entry of judgment 200 Stay of proceedings 200 Bringing on argument at general term 200 Decision of the general term on the verdict 201 Entry of judgment on verdict 201 Verdict in equity cases 201 Objections and exceptions (See Objections ; Exceptions, etc.) 202 Use of exceptions and objections 202 When an exception lies 202 When an exception does not lie 203 Exceptions, when taken 203 Exceptions, by whom taken , 204 Form of exceptions 204 Exceptions must be specific 205 Exceptions, 'how cured 206 Bill of exceptions 207 Reserving cause for judgment 207 Reserving cause for argument 208 Reserving hearing of exceptions for general term 208 Cases in which general term may review proceedings before judgment. . . 209 Application for judgment at general term .- 209 Reserving cause for consideration , 210 Stay of proceedings 210 Stay pending motion for new trial 210 Discretionary powers of court (See Discretion) 210 TRIAL OP ISSUES OP PACT BY THE COURT : Proceedings on the trial 212 What actions or issues are properly triable by the court 212 Equitable actions triable by the court 212 Actions which might be referred 212 Actions not usually tried by jury 212 Equitable actions may be tried by jury 213 When a cause must be tried by jury 213 Waiver of trial by jury 213 Right to waive trial by jury 213 Mode of waiving trial by jury , 213 Waiver by failing to appear 213 Written consent to waive jury trial 214 Oral consent to waive jury trial 214 What is a waiver of jury trial 214 What is not a waiver of a jury trial 215 Bringing on the trial 215 How and when the cause may be moved for trial 215 Practice on the trial 215 Trial must be entire and completed before same judge '. 215 Procuring decision upon issues not made by the pleadings 215 The decision 216 Decision not a udgment, but the authority for entering 210 INDEX. 821 TRIAL OF ISSUES OP PACT BY THE COURT — Continued. page. Nothing can be included in the judgment not embraced in the decision, 216, 220 Decision must contain statement of facts found and conclusions of law separately 216 All material facts should be found 216 Form of decision 216 Judge must himself render the decision 217 Judge cannot render decision subject to opinion of general term 217 Conclusiveness of decision 217, 218 Within what time the decision must be rendered 218 Proceedings where decision is unreasonably delayed 218 Statement of facts found ' 218 Pacts cannot be implied from conclusions of law 218 Presumptions as to facts not found 218 Pact found without evidence to sustain it, an error of law 219 Statement of conclusions of law 219 Preparing and settling decision 219 By whom decision may be drawn up 219 Defeated party not entitled to be present when decision is drawn up 219 Piling of decision 219 The judgment, whatto contain 220 Judgment, when entered 220 Judge may reserve cause for judgment 220 Final hearing 221 Objections and exceptions to rulings 221 Correcting findings of fact 221 Requesting judge to find facts 221 Proceedings where judge fails to find as requested 221 Judgment entered on decision cannot be set aside at special term 222 When motion for new trial may be made at general term 222 Exceptions to decision (See Exceptions) 222 When exceptions to decision may be taken 222 Nature of the exceptions to the decision 222 Exceptions to findings of fact unavailing 223 How exceptions must be taken 223 Case or exceptions for a review upon the evidence 223 Service of the exceptions 223 Extending time to make case or exceptions 223, 224 Questions of fact, how reviewed 224 Questions of law, how reviewed 224 Waiver of exceptions 224 Entry of judgment 225, 707 Pinal hearing 225 Mode of entering judgment 225, 708 Appeal 225 Appeal the only mode of obtaining a review of decision directing .final judgment 225 Review of interlocutory decision by motion for new trial 226 Case must contain finding of facts 226 Presumptions of law in favor of decision 226 822 INDEX. TRIAL OP ISSUES OP LAW : page. Preparation for trial 227 Bringing on the trial 227 At what term and place an issue of law may be tried 227 Before what court the trial must be had 227 Notice of 227 Furnishing copies of pleadings and points 228 Piling note of issue , 228 But one notice of trial or one note of issue required in first judicial district, 229 Trial or argument 229 Proceedings on trial 229 What papers must be furnished on the trial 229 Statement of facts must be prefixed to points 229 Opening argument by party demurring 229 Reply 229 Closing the argument 229 General practice on the argument , 229 The decision or judgment 230 The decision, how rendered 230 Form of the decision 230 Withdrawing demurrer 230 When a party will be allowed to plead over when the demurrer is over- ruled 231 Leave to amend upon allowance of demurrer 231 Dividing action where demurrer is allowed for misjoinder of causes of action 231 Both parties may be allowed to amend on overruling demurrer 232 Piling decision 232 Service of copy of decision 232 Trial where there are both issues of fact and of law 232 No exceptions proper to decision on issue of law 232 Proceedings after decision 232 Precautionary measures of prevailing party 232 Precautionary measures on part of defeated party r . . 233 Effect of pleading over on prior issues 233 Effect of failure to plead over 233 Judgment, where answer demurred to is sufficient and a bar to the action, 233 Judgment for costs 233 Assessing damages or further application to court 233 Trial of issues of fact 234 Trial of issue of law usually postpones trial of issue of fact , 234 Framing issues of fact on overruling demurrer 234 When final judgment may be entered on issue of law, while issue of fact is pending 234 What issues have preference on the calendar 235 Taxing costs 235 What costs allowed when demurrer is sustained 233 What costs allowed when demurrer is overruled 235 What terms may be imposed as a condition of amending or pleading over 236 INDEX. 823 TRIAL OP ISSUES OP LAW — Continued. page. Costs, where there are several defendants 236 Entering judgment 236, 709 Appeal to general term 236 Appeal to the court of appeals 236 TRIAL PEE: Amount allowed as ...... 484 TRUSTEES : Costs in actions by or against ; 479 Who are 530 When charged with costs : 530 How charged with costs 532 VACATING: Costs for vacating judgment 515 Costs on vacating inquest 515 Judgments 730 VARIANCES: Effect of variance between pleadings and proof under former practice .... 165 Variance not material, unless it has misled the adverse party to his prejudice 165, 166, 277 What is not a variance but a failure of proof 166 Material and immaterial variances 166 Amendment of pleadings to cure 167 Disregarding variance on reference 277, 297 VENUE: Costs, on motion to change 510 VIEW: Writ of, suspended 123 Leave to make survey of real property 123 Delivery of description of premises ordered in lieu of 123 Under English practice 124 VERDICT: When the court may direct a verdict for either party 181 Effect of moving for a nonsuit upon the right to divert 181 Deliberation of jury upon 184 Court may endeavor to persuade jury to agree upon 185 Mode of determining 185 Invalid, if decided by lot 186 Assessing damages by general average invalidates verdict 186 Time during which jury may be kept together to deliberate on 186 When separation of jury will vitiate 186 What misconduct on part of jury will vitiate 187 Affidavit of juror will not be received to impeach 188 Proceedings where jury cannot agree upon 188 General verdict 188 General verdict defined 188 When form of verdict discretionary with jury 188 When a general verdict will be proper in replevin 188. 192 824 INDEX. VERDICT — Continued. page. Requisites of a general verdict 189 Where there are several issues 189 When jury must assess the amount of the recovery 189 Verdict must not be evasive or argumentative 189 When jury may not assess separate damages 189 Court may instruct jury to find upon particular questions of fact. . . . 188, 190 Special findings control general verdict 188, 190, 193 Where special findings accompany verdict, clerk cannot enter 190 General verdict good notwithstanding failure to find specially as directed, 190 Piling and entering answers to questions submitted to jury 191 What damages may be included in 191 When interest on demand may be included in 191 Oral verdict usually rendered 192 Sealed verdict, when proper 192 Sealed verdict no more conclusive than oral 192 How rendered a nullity . . . . ■ 192 Rendition of '. 192, 193 Verdict when pronounced may be corrected, if not recorded 193 When court may send jury back to reconsider 193 When the court may correct 193 Polling jury after . 193 Entry of. 194 Conclusiveness of 194 Verdict unsupported by evidence may be set aside 195 Assignment of verdict by prevailing party 195 Judgment cannot be set off against 195 Setting aside 195 Errors cured by 195 Special verdict 195 Special verdict defined 195, 564 Mixed verdict substantially a special verdict 195 When the court may require a special verdict 195 Requisites of a special verdict 196 Special verdict, how and when prepared 196 Settlement of special verdict 196 Verdict, when settled, must be filed and entered 197 Amendment of verdict 197 Stay of proceedings 197 Motion for judgment on special verdict 198, 564 Where motion for judgment must be made 565 Notice of motion 198, 565 Service of papers 198, 565 Placing cause on calendar 565 Argument of motion 198 Order on motion for judgment, and its entry 198, 565 Order may be for judgment or new trial 198 Entry of judgment 198 Verdict subject to opinion of court at general term 198 When such verdict may be given 198, 567 INDEX. 825 VERDICT— Continued. page. Cannot be ordered where a single fact is in dispute 199 Cannot be ordered where exceptions have been taken 199 No exception necessary to review order improperly directing verdict, sub- ject to opinion of court 568 Form of such verdict 199 Application for judgment on verdict, subject to opinion 567 (See Judgment.) Verdict in equity cases 201 Verdict on feigned and awarded issues 202 Verdict against law and evidence a ground for new trial 403 Verdict contrary to charge a ground for new trial 405 Judgment on 706 WAIVER : Of objections and exceptions 207, 224 Of jury trial 213 Of irregularities in proceedings to obtain a reference 269 WILLS : Costs in actions for construction of 480 Extra allowance in actions for adjudication on 491, 493 WITNESSES: Competency of (See Competency) 120 Allowing witness to be recalled discretionary 126 Limiting number of, on collateral issue 126 Rules for the examination of (See Examination) 126-129 Direct examination of ^" Cross-examination of (See Cross-examination) 130-139 Re-examination of 139 Impeachment of (See Impeachment) 139-155 Committing perjured witnesses 155 Compelling attendance of, on reference 278, 353 Referee cannot be sworn as a witness 285 Oath of, on reference 295 Committing for contempt 296 Eees of When witnesses' fees may be taxed 501 Attorney not allowed fee as witness 502 Party, when allowed fee as witness 503 Traveling fees of Expense of serving subpoena on, not taxable °U4 Affidavit to obtain fees of Vol. III. — 104 / / INDEX TO FORMS. ACCOUNT: pA(JK Of executor 357 Order for an accounting 3g2 ADMISSION : Of service of notice of trial 35 294 Judgment on admitted demand 619 AFFIDAVIT: Of merits, by defendant 49 Of merits, by counsel 49 On application for postponement 71 On application for a reference 262 Denying account in opposition to motion to refer 263 To oppose reference where there are difficult questions of law 264 To oppose reference where fraud is set up 264 Of service of subpoena 283 For new trial in ejectment 419 For new trial on ground of misconduct of jury 437 For new trial on ground of newly-discovered evidence 437 For new trial on ground of surprise 438 Of disbursements 557 Of no reply 643 Of no answer 646 To support motion for judgment after service of summons by publication . . 652 Of service of notice of acceptance of offer of judgment 678 ALIMONY : Report of referee on question of 312 Judgment for divorce granting : 629 AMENDMENTS: To case and exceptions 430 ARGUMENT (See Notice of Trial) : Notice of argument of demurrer 228 ASSESSMENT : Notice of 648 Order for assessment at circuit 658 ATTACHMENT : Against witness for non-attendance before referee 282 CASE: To review judgment on report of referee 331 Without exceptions 424 828 • INDEX. CASE — Continued. page. With exceptions 425, 426 Amendments to 430 Notice of settlement of , 432 Order for time to prepare 436 CHALLENGE : To the array 108 CLAIM: Of creditor ro surplus money in foreclosure 343 CONFESSION : Of judgment 689 CONSENT : To refer 255 COSTS : Notice of motion for extra allowance 499 Order at circuit for extra allowance 499 Statement of costs and disbursements 556 Affidavit of disbursements 557 Notice of taxation and adjustment of 557 COUNTER-CLAIM : Judgment on admitted 619, 642 COUNTERMAND : Of notice of trial 38; Of notice of inquiry 660 DECISION : Of court on trial of issue of fact 217 DEFAULT : Judgment on default of answer 618 Judgment of dismissal for non-service of complaint 620 Judgment on default of reply 620, 644 Affidavit of no reply '. 643 Order for judgment for want of reply 643 Affidavit of no answer 664 Order, on motion to open 669 Notice of motion to set aside 670 DEMURRER : Notice of trial of 228 Note of issue 228 Order sustaining 237 Order overruling 237 Order sustaining in part, and overruling in part 237 Judgment on • 619 DISBURSEMENTS : Affidavit of 557 Statement of costs and 556 DISMISSAL : Judgment of 620 INDEX. *829 DIVORCE: Report of referee in action for 310, 311 312 Report on question of alimony 312 Order of reference in action for ... . 346 Judgment for, on ground of adultery 628 Judgment for, in favor of wife with alimony, etc 629 Recitals in case of adultery where reference has been had 629 Judgment for limited divorce 629 EJECTMENT : Affidavit for new trial in 419 Judgment in 623, 624 EXCEPTIONS: To report of referee 320, 38V Case and exceptions 331, 425, 426 Notice of 429 Order to hear, at general term 434 Order for time to prepare 436 FORECLOSURE : Creditors' claim to surplus moneys in , 343 Order of reference as to surplus moneys in 369 Judgment of foreclosure and sale , 626 HEARING (See Notice of Trial) : Notice of ' 294 INQUEST : Notice of motion to set aside 671 INQUIRY: Order for writ of 656 Writ of 657 Notice of inquiry before sheriff 659 Notice of inquiry at circuit 659 Countermand of notice of 660 INQUISITION : Form of 663 ISSUES : Notice of motion for trial of, by a jury 22 Copy of issues proposed for jury trial 22 Order of reference to settle 22 Report of issuos as settled 22 Order directing issues to be tried by jury 23 Note of issue 40 JUDGMENT: Notice of °'-' 2 On failure to answer, summons personally served 618 On failure to answer, summons served by publication 618 On admitted demand 619 On demurrer 619 On verdict 619 On report of referee 619 836 INDEX. JUDGMENT — Continued. page. Of dismissal , 620 On failure to reply 620, 644 For defendant, on the merits after verdict 621 For plaintiff for damages, for defendant for costs 621 For money, common form 622 Against joint debtors, where all are not served 622 For possession in ejectment, with damages 623 For damages in ejectment, where plaintiff's title expired before trial 623 For recovery of possession in ejectment 624 For confirmation of possession in ejectment 624 Of foreclosure and sale 626 For divorce, on ground of adultery 628 For divorce in favor of wife, with provision as to alimony, etc 629 Recital of judgment of divorce for adultery, where reference to take proof has been had '. 629 For limited divorce 629 Against vendor, for specific performance 630 Against purchaser, for specific performance 631 For surrender of document 632 Provision setting off costs against recovery 637 On admitted counter-claim 642 For want of reply 644 After service of summons by publication 654 On offer 678 On confession 690 NEW TRIAL : Affidavit for, in ejectment -. 419 Affidavit for, on ground of misconduct of jury 437 Affidavit for, on ground of newly-discovered evidence 437 Affidavit for, on ground of surprise 438 Notice of motion for 439, 440 Order granting motion for 441, 442 Order denying motion for 442 NOTE OF ISSUE : For jury trial 40 For trial of issue of law 228 NOTICE : Of argument of demurrer 228 Of hearing before referee 294 Of referee's report and of judgment 322 Of exceptions 429 Of settlement of case 432 Of taxation and adjustment of costs 557 Of assessment of amount of recovery , 648 Of inquiry before sheriff 659 Of inquiry at circuit 659 Of acceptance of offer of judgment 677 Of judgment 727 INDEX. 831 NOTICE OP MOTION: page. For issues to be tried by a jury 22 To refer .... 260 For new trial 439 540 For extra allowance of costs 499 For judgment on default 649 To set aside default 670* To set aside inquest 671 For order striking out answer as sham 711 NOTICE OF TRIAL: Plaintiff's 34 Defendant's 34 General 34 Plaintiff's, and of assessment of damages against defendant in default 35 Admission of service of 35. 294 Countermand of _ 38 Of issue of law 228 Before referee 294 OFFER : To allow judgment 677 Notice of acceptance of offer of judgment 1 677 Affidavit of service of notice of acceptance ! 678 Judgment on : 678 ORDER: Of reference to settle issues 22 Directing issues to be tried by jury 23 Of postponement 76 Sustaining demurrer 237 Overruling demurrer 237 Sustaining demurrer in part and overruling demurrer in part 237 Of reference upon consent 258 Of reference upon motion of party 267 Of reference upon motion of court 267 Of reference in divorce 346 For an accounting before referee 362 Of reference as to surplus moneys 369 To hear exceptions at general term 434 Granting time to prepare case or exceptions, with stay. , 436 Granting motion for new trial 441, 442 Denying motion for a new trial 442 For extra allowance of costs 499 For judgment for want of reply 643 For reference to take proof, etc., after service by publication 653 For judgment, summons served by publication 654 For writ of inquiry \ 656 For sheriff's jury 657 For assessment of damages at circuit 658 Grantin" or denying motion to open default 669 To show cause why judgment should not be set aside, etc 671 Striking out answer as sham 712 832 INDEX. POSTPONEMENT : page. Common affidavit to obtain 71 Order of 76 REFERENCE : Order of, to settle issues 22 Report of issues as settled on 22 Consent to 255 Order of reference upon consent 258 Affidavit on application for 262 Affidavits in opposition to motion for 263, 264 Stipulation agreeing upon referee 264 Order of, on motion of party 267 Order of, on motion of court 267 Subpoena for 278 Subpoena ticket for 278 Attachment against witness for non-attendance on 282 Report on reference of all the issues 310 Report on reference in divorce 310, 311, 312 Report on reference as to alimony 312 Exceptions to report of referee 320, 387 Notice of referee's report and of judgment 322 Case and exceptions ■ 331 Interlocutory order of reference in divorce • 346 Order of reference to take account 362 Order of, as to surplus moneys 369 Order of, to take proof of cause of action, etc., where summons served by publication ' 653 REPORT : Of issues, as settled by referee 22 Of referee on all the issues 310 Of referee in action for divorce 310, 311, 312 Exceptions to 320, 387 Judgment on 619 SATISFACTION: Satisfaction piece '. 749 By plaintiff 750 SPECIFIC PERFORMANCE : Judgment for 630, 631 STIPULATION : Agreeing on referee 264 SUBPCENA : For reference 278 Ticket for reference ' ■ 278 Affidavit of service of 283 UNDERTAKING : For restitution, summons served by publication 653 WRIT: Of inquiry 657