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968. What issues of fact are triable by a jury.
§ 963. The issues, treated of in this chapter, are those only which Issues der
; dir are presented by the pleadings. An issue arises where a fact, or a con- ferent clusion of law, is maintained by one party, and controverted by the other. Issues are of two kinds :
issues. 1. Of law; and 2. Of fact. 8 964. An issue of law arises only upon a demarrer. An issue of When is.
law fact arises, in either of the following cases :
arise; when 1. Upon a denial, contained in the answer, of a material allegation issues of of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint.
2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer.
3. Upon a material allegation of new matter, contained in the answer, not requiring a reply; unless an issue of law is joined thereupon.
4. Upon a material allegation of new matter, contained in the reply; unless an issue of law is joined thereupon.
$ 965. An issue, either of law or of fact, must be judicially exam- Issues to be ined by means of a trial, as prescribed in this chapter; unless it is dis- judicially posed of upon a motion, or upon exceptions, as prescribed in chapter by a trial. sixth of this act.
8 966. Where an issue of law and an issue of fact arise in one action, issues of the issue of law must be first disposed of, except as otherwise prescribed fact in the in the next section.
8 967. A separate trial, between the plaintiff and one or more de- But court fendants, of some or all of the issues of fact, or one trial of some or all the order, of the issues of law, or a change in the order of disposition of the issues, etc::of dismay be directed by the court, in its discretion. Such a direction may the issues. be given, in an order, made upon notice; or except where an application for such an order has been denied, it may be given, by the judge holding the term, where those issues are regularly upon the calendar for trial, either with or without the entry of an order.
§ 968. In each of the following actions, an issue of fact must be tried What is: by a jury, unless a jury trial is waived, or a reference is directed : are triable 1. An action in which the complaint demands judgment for a sum by a jury.
. of money only.
sues of fact
Order for trial by
questions of fact, when of
2. An action of ejectment; for dower; for waste; for a nuisance;
or to recover a chattel. What is $ 969. An issue of law, in any action, and an issue of fact, in an triable by action not specified in the last section, or wherein provision for a trial the court. by a jury is not expressly made by law, must be tried by the court,
unless a reference or a jury trial is directed.
§ 970. Where a party is entitled, by the Constitution, or by express jury, of provision of law, te a trial, by a jury, of one or more issues of fact, in specific
an action not specified in section nine hundred and sixty-eight of this
act, he may apply, upon notice, to the court for an order, directing all right.
the questions, arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application, the court must cause the issues, to the trial of which, by a jury, the party is entitled, to be distinctly and plainly stated. The subsequent proceedings are the same, as where questions, arising upon the issues, are stated for trial by a jury, in a case where neither party can, as of right, require such a trial; except that the finding of the jury, upon each question so stated, is conclusive in the action, unless the verdict is set
aside, or a new trial is granted. Id.; when discretion.
§ 971. In an action, where a party is not entitled, as of right, to a trial by à jury, the court may, in its discretion, upon the application of either party, or without application, direct that one or more qnestions of fact, arising upon the issues, be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accord
ingly. Trial of the S 972. If the questions, directed to be tried by a jury, as prescribed remainder
in the last two sections, do not embrace all the issues of fact, in the action, the remaining issues of fact must be tried by the court, or by a referee.
S 974. Where the defendant interposes a counterclaim, and theredeemed an upon demands an affirmative judgment against the plaintiff, the mode action,
of trial of an issue of fact, arising thereupon, is the same, as if it arose within the foregoing in an action, brought by the defendant, against the plaintiff, for the sections.
cause of action stated in the counterclaim, and demanding the same
$ 975. An issue, the disposition of which is not necessary to enable
the court to render the appropriate judgment, is not required to be tried.
tried. What is.
S 976. An issue of law, or an issue of fact, triable by a jury or by
the court, must be tried at a term held by one judge only, except as judge; reg.
otherwise prescribed in section two hundred ninety-seven of this ulation of act. In the supreme court, an issue of fact, triable by a jury, must be trial in the
tried in the circuit court; and an issue of fact, triable by the court, or an issue of law, may be tried in the circuit court, or at a special term
of the supreme court, as prescribed in the general rules of practice. Notice of 8 977. At any time after the joinder of issue, and at least fourteen
days before the commencement of the term, either party may serve a issue.
notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action; the names of the attorneys; the time when the last pleading was served; the nature of the issue, whether of fact or of law; and, if an issue of fact, whether it is triable by a jury, or by the court, without a jury. The note of issue must be filed, at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The clerk must prepare the calen
of the is. sues.
Counterclaim to be
issues need not be
sues to be tried be fore one
trial and note of
dar and have the necessary copies ready for distribution at least five days before the commencement of the term. In the city and county of New York, where a party has served a notice of trial, and filed a note of issue, for a term, at which the cause is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of.
8 978. The issues on the calendar must be arranged by the clerk, in Order of the following order:
of issues at 1. Issues of fact.
a jury term. 2. Issues of law.
Where a jury is in attendance, the issues must be disposed of in the same order; unless, for the convenience of parties, or the dispatch of business, the judge holding the term otherwise directs.
S 979. Where a jury is not in attendance, issues of law have a pre- Id: ; when ference over issues of fact; unless the judge holding the term otherwise not attend. directs.
8 980. Either party, who has served the notice, may bring the issue Either to trial ; and, in the absence of the adverse party, unless the judge party maye holding the term, for good cause, otherwise directs, may proceed with to trial. the cause, and take a dismissal of the complaint, or a verdict, decision, or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified.
8 981. Where the issue is brought to trial by the plaintiff, he must what pa. furnish the court with copies of the summons and pleadings, and of peritonea the offer, if any has been made. Where the issue is brought to trial on trial, by the defendant, and the plaintiff does not furnish those papers, they whom. must be furnished by the defendant.
THE PLACE OF TRIAL.
SECTION 982. Certain actions to be tried, where the subject thereof is situated.
983. Other actions, where the cause thereof arose.
tions to be
8 982. Each of the following actions must be tried in the county, in Certain ac which the subject of the action, or some part thereof, is situated : an
tried, action of ejectment; for the partition of real property; for dower; to where the foreclose a mortgage upon real property, or upon a chattel real; to com- thereof is pel the determination of a claim to real property; for waste; for a
situated. nuisance; or to procure a judgment, directing a conveyance of real
cause thereof arose.
the residence of
property; and every other action to recover, or to procure a judgment, establishing, determining, defining, forfeiting, annulling, or otherwise affecting, an estate, right, title, lien, or other interest, in real property, or a chattel real. But where all the real property, to which the action relates, is situated without the State, the action must be tried, as prescribed in section nine hundred and eighty-four of this act.
$ 983. An action, for either of the following causes, must be tried where the in the county, where the cause of action, or some part thereof, arose :
1. To recover a penalty or forfeiture, imposed by statute ; except that, where the offence, for which it is imposed, was committed on a lake, river, or other stream of water, situated in two or more counties, the action may be tried in any county, bordering on the lake, river, or stream, and opposite to the place where the offence was committed.
2. Against a public officer, or a person specially appointed to execute his duties, for an act done, in virtue of his office, or for an omission to perform a duty, incident to his office; or against a person, who, by the command or in the aid of a public officer, has done anything touching his duties. .
3. To recover a chattel distrained, or damages for distraining a
chattel. Other ac
8 984. An action, not specified in the last two sections, must be tried cording to in the county, in which one of the parties resided, at the commence
ment thereof. If neither of the parties then resided in the State, it the parties. may be tried in any county, which the plaintiff designates, for that
purpose, in the title of the complaint. Place of
$ 985. If the county, designated in the complaint, as the place of trial, if
trial, is not the proper county, the action may notwithstanding be tried county not therein ; unless the place of trial is changed to the proper county, upon desig.
the demand of the defendant, followed by the consent of the plaintiff,
or the order of the court. Defendant $ 986. Where the defendant demands that the action be tried in the
proper county, his attorney must serve upon the plaintiff's attorney, change ; with the answer, or before service of the answer, a written demand ings there. accordingly. The demand must specify the county, where the defend
ant requires the action to be tried. If the plaintiff's attorney does not serve his written consent to the change, as proposed by the defendant. within five days after service of the demand, the defendant's attorney may, within ten days thereafter, serve notice of a motion to change the place of trial.
8 987. The court may, by order, change the place of trial, in either change the of the following cases : place of
1. Where the county, designated for that purpose in the complaint, is not the proper county.
2. Where there is reason to believe, that an impartial trial cannot be had in the proper county.
3. Where the convenience of witnesses, and the ends of justice, will
be promoted by the change. Effect of $ 988. Where the place of trial is changed to another county, the Che pace subsequent proceedings shall be had in the county to which the change
is made, the same as if it had been designated in the complaint, as the place of trial; except as otherwise directed by the court, or provided by the written consent of the parties, filed with the clerk, And the clerk of the county, from which it is changed, must forth with deliver to the clerk of the county, to which it is changed, all papers filed in the action, and certified copies of all minutes and entries relating
may de mand
ART. 3. thereto, which must be filed, entered, or recorded, as the case requires, in the office of the last named clerk.
§ 989. An order to change the place of trial takes effect, upon the Exect of entry thereof, in the office of the clerk of the county, from which the order place of trial is changed. But for the purposes of the place of hearing, place of a motion to set it aside, or an appeal therefrom, the place of trial is deemed unchanged.
$ 990. An issue of law may be tried in any county, within the judi- Issues of cial district, embracing the county wherein the action is triable; but triable. after the trial, the decision, and all other papers relating to the trial, must be filed, and the order made, or judgment rendered, must be entered in the last named county. 8 991. This article is applicable to an action in the supreme court only. This arti
cle appli. cable only
to the supremo court
EXCEPTIONS, CASE, AND MOTION FOR A NEW TRIAL.
SECTION 992. What rulings may be excepted to.
993. Refusal of court or referee, to find upon facts may be excepted to.
cial provisions applicable thereto.
may be heard afterwards.
1007. Notes of stenographer may be treated as minutes of the judge. 8 992. An exception may be taken to the ruling of the court or of a What referee, upon a question of law, arising upon the trial of an issue of ruling fact. Except as prescribed in section one thousand one hundred and cepted to. eighty of this act, an exception cannot be taken to a ruling, upon a question of fact. For the purposes of this article, a trial by a jury is regarded as continuing, until the verdict is rendered.