TITLE 2. without a jury; unless a reference is directed, in a case prescribed by tion must law. But such an action, other than to recover damages for breach of be tried by a contract, cannot be tried by the court, without a jury, unless the the court. judge, presiding at the term where it is brought on for trial, assents to such a trial. His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section. § 1009. A party may waive his right to the trial of the issue of fact, Trial by by a jury, in any of the following modes: 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury; or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial. jury; how waived. upon trial when to § 1010. Upon a trial, by the court, of an issue of fact or of law, its Decision decision, in writing, must be filed, in the clerk's office, within twenty by the days after the final adjournment of the term, where the issue was tried. court, If it is not so filed, either party may move, at a special term, for a new be filed; trial upon that ground. If the decision has not been filed, when the consemotion is heard, the court must make an order for a new trial, either failure. absolutely, or unless it is filed, within a time specified in the order. If an order for a new trial is made, or a contingent order for a new trial becomes absolute, the costs of the former trial abide the event. quence of when and § 1011. Except in a case specified in the next section, the whole Reference issue, or any of the issues in an action, either of fact or of law, must by consent; be referred, upon the consent of the parties, manifested by a written how made. stipulation, signed by their attorneys, and filed with the clerk. Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issues for trial, to that person only. If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise. last sec § 1012. But a reference shall not be made, of course, upon the con- Qualificasent of the parties, in an action to annul the marriage, or for a divorce tion of the or a separation; or an action against a corporation, to obtain a dissolu- tion. tion thereof, the appointment of a receiver of its property, or the distribution of its property, unless it is brought by the Attorney-General; or an action wherein a defendant, to be affected by the result of the trial, is an infant. In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; and, where a reference is granted, the court must designate the referee. ence for § 1013. The court may, of its own motion, or upon the application of Compulsoeither party, without the consent of the other, direct a trial of the Ty referissues of fact, by a referee, where the trial will require the examina- the trial of issues; in tion of a long account, on either side, and will not require the decision what cases of difficult questions of law. In an action, triable by the court, with- it may be out a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. made. § 1014. Where a reference is made, as prescribed in the last section, Proceedto report upon a specific question of fact, involved in the issue, and the ings where rmination of one or more other issues is necessary, in order to ence is for the refer trial of [CHAP. X. TITLE 2. enable the court to render judgment, they must be tried, either before part of the or after the filing of the report, as the court directs, and either by a jury, or by the court, without a jury, as the case requires. Where they are tried by a jury, application for judgment must be made upon the verdict and the report. issues. Compulsory refer ence upon questions incidentally aris ing. Referee to be sworn. Witnesses may be subponaed. General powers of upon & trial. § 1015. The court may likewise, of its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the information of the court; and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings. § 1016. A referee, appointed as prescribed in either of the foregoing sections of this title, must, before proceeding to hear the testimony, be sworn faithfully and fairly to try the issues, or to determine the questions referred to him, as the case requires, and to make a just and true report, according to the best of his understanding. The oath may be administered by an officer specified in section eight hundred and fortytwo of this act. But where all the parties, whose interests will be affected by the result, are of age, and present, in person or by attor ney, they may expressly waive the referee's oath. The waiver may be made by written stipulation, or orally. If it is oral, it must be entered in the referee's minutes. § 1017. A witness may be subpoenaed to attend before a referee, appointed as prescribed in either of the foregoing sections of this title, to testify, and, in a proper case, to bring with him a book, document, or other paper, as upon a trial by the court. § 1018. The trial, by a referee, of an issue of fact, or of an issue of a referee, law, must be brought on upon like notice, and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the court, without a jury. The referee exercises, upon such a trial, the same power as the court, to grant adjournments, to preserve order, and punish the violation thereof. Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow amendments to the summons, or to the pleadings; to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify. Upon the trial of an issue of law, the referee exercises the same power as the court, to permit a party in fault to plead anew or amend; to direct the action to be divided into two or more actions; to award costs, and otherwise to dispose of any question, arising upon the decision of the issue referred to him. The powers, conferred by this section, are exercised in like manner, and upon like terms, as similar powers are exercised by the court, upon a trial. Referee's report; Bequence § 1019. Upon the trial, by a referee, of an issue of fact, or an issue when to be of law, his written report must be either filed with the clerk, or delivmade; con- ered to the attorney for one of the parties, within sixty days from the of failure. time when the cause is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice, upon the attorney for the adverse party, that he elects to end the reference. In such a case, the action must thenceforth proceed, as if the reference had not been directed; and the referee is not entitled to any fees. Double or other in § 1020. Where the double, treble, or other increased damages are TITLE 2. given by statute, the decision of the court, or the report of the referee, creased must specify the sum awarded as single damages, and direct judgment damages. for the increased damages. court or re trial of de § 1021. The decision of the court, or the report of a referee, upon Decision of the trial of a demurrer, must direct the final or interlocutory judg- port of ref ment to be entered thereupon. Where it directs an interlocutory eree, upon judgment, with leave to the party in fault to plead anew or amend, or murrer. permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed. whole issue § 1022. The decision of the court, or the report of the referee, upon Id.; upon the trial of the whole issue of fact, must state separately the facts trial of the found, and the conclusions of law; and it must direct the judgment, of fact. to be entered thereupon. In an action, where the costs are in the discretion of the court, the decision or report must award or deny costs; and, if it awards costs, it must designate the party to whom costs, to be taxed, are awarded. may re quire court § 1023. Before the cause is finally submitted to the court or the Parties referee, or within such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either or referee party may submit, in writing, a statement of the facts, which he deems mine parestablished by the evidence, and of the rulings upon questions of law, questions. which he desires the court or the referee to make. The statement must be in the form of distinct propositions of law, or of fact, or both, separately stated; each of which must be numbered, and so prepared, with respect to its length, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. At or before the time, when the decision or report is rendered, the court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report. to deter ticular tions of a § 1024. A referee, appointed by the court, must be free from all just Qualificaobjections; and no person shall be so appointed, to whom all the parties referee. object, except in an action to annul a marriage, or for a divorce, or a separation. A judge cannot be appointed a referee, in an action brought in the court, of wh ch he is a judge, except by the written consent of the parties; and, in that case, he cannot receive any compensation as referee. Several referees § 1025. Where the court is authorized to appoint a referee, it may, in its discretion, appoint either one or three. And where a reference may be ap is made by consent of the parties, they may select any number of pointed. referees, not exceeding five. ings regu there are § 1026. Where the reference is to more than one referee, all must Proceedmeet together, and hear all the allegations and proofs of the parties; lated but a majority may appoint a time and place for the trial, decide any where question which arises upon the trial, sign a report, or settle a case. several Either of them may administer an oath to a witness; and a majority of those present, at a time and place appointed for the trial, may adjourn the trial to a future day. referees. TITLE 3. TITLE III. Trial jurors, except in New-York and Kings counties; mode of selecting them, and of procuring their attendance. ARTICLE 1. Qualifications and exemptions of trial jurors. 2. Mode of selecting, drawing, and procuring the attendance of trial jurors, in ordinary cases. 3. Mode of striking and procuring a special jury, and of procuring a foreign jury. 4. Penalties for non-attendance. Qualifications of ARTICLE FIRST. QUALIFICATIONS AND EXEMPTIONS OF TRIAL JURORS. SECTION 1027. Qualifications of trial jurors. 1028. Additional provision respecting property qualifications. 1030. Persons entitled to claim exemption from service. 1031. Evidence of exemption in certain cases. 1032. When juror to be discharged from serving. 1033. When juror to be excused from serving. 1034. Application of this article, as respects New-York and Kings counties. § 1027. In order to be qualified to serve, as a trial juror, in a court trial jurors. of record, a person must be: Additional 1. A male citizen of the United States, and a resident of the county. 2. Not less than twenty-one, nor more than sixty years of age. 3. Assessed, for personal property, belonging to him, in his own right, to the amount of two hundred and fifty dollars; or the owner of a freehold estate in real property, situated in the county, belonging to him in his own right, of the value of one hundred and fifty dollars; or the husband of a woman who is the owner of a like freehold estate, belonging to her, in her own right. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions; of fair character; of approved integrity; of sound judgment; and well informed. § 1028. But a person who was assessed, on the last assessment-roll provising of the town, for land in his possession, held under a contract for the property purchase thereof, upon which improvements, owned by him, have been qualification. made, to the value of one hundred and fifty dollars, is qualified to serve as a trial juror, although he does not possess either of the qualifications, specified in subdivision third of the last section, if he is qualified in every other respect. Certain public officers disqualified. § 1029. Each of the following officers is disqualified to serve as a trial juror: 1. The Governor; the Lieutenant-Governor; the Governor's private secretary, 2. The Secretary of State; the Comptroller; the State Treasurer; the Attorney-General; the State Engineer and Surveyor; a Canal Commissioner; an Inspector of State Prisons; a Canal Appraiser; the Superintendent of Public Instruction; the Superintendent of the Bank Department; the Superintendent of the Insurance Department; and the deputy of each officer, specified in this subdivision. 3. A member of the Legislature, during the session of the house, of which he is a member. 4. A judge of a court of record, or a surrogate. 5. A sheriff, under-sheriff, or deputy-sheriff. ART. 1. entitled to 6. The clerk or deputy-clerk of a court of record. § 1030. Each of the following persons, although qualified, is entitled Persons to exemption from service, as a trial juror, upon his claiming exemp- claim extion therefrom: emption from ser 1. A clergyman, or a minister of any religion, officiating as such, vice. and not following any other calling. 2. A resident officer of, or an attendant, assistant, teacher, or other person, actually employed in, a State asylum for lunatics, idiots, or habitual drunkards. 3. The agent or warden of a State prison; the keeper of a county jail; or a person actually employed in a State prison or county jail. 4. A practicing physician or surgeon, having patients requiring his daily professional attention. 5. An attorney or counsellor at law regularly engaged in the practice of the law, as a means of livelihood. 6. A professor or teacher, in a college or academy. 7. A person actually employed in a glass, cotton, linen, woollen, or iron manufacturing company, by the year, month, or season. 8. A superintendent, engineer, or collector, on a canal, authorized by the laws of the State, which is actually constructed and navigated. 9. A master, engineer, assistant-engineer, or fireman, actually employed upon a steam-vessel, making regular trips. 10. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad company; or an operator, or assistant-operator, employed by a telegraph company; who is actually doing duty in an office, or along the railroad or telegraph line of the company, by which he is employed. 11. An officer, non-commissioned officer, musician, or private of the national guard of the State, performing military duty; or a person, who has been honorably discharged from the national guard, after five years' service, in either capacity. 12. A person who has been honorably discharged from the military forces of the State, after seven years' faithful service therein. But in order to entitle a person to exemption, under this subdivision, his service must have been performed before the twenty-third day of April, eighteen hundred and sixty-two, either as a general or staff-officer, or as an officer, non-commissioned officer, musician, or private, in a uniformed battalion, company, or troop of the militia of the State, and armed, uniformed, and equipped, according to law; or a portion thereof, during that period and in that capacity, and the remainder, since the twenty-third day of April, eighteen hundred and sixty two, as a member of the national guard of the State. 13. A member of a fire company, or fire department, duly organized according to the laws of the State, and performing his duties therein; or a person who, after faithfully serving five successive years in such a fire company, or fire department, has been honorably discharged therefrom. 14. A person otherwise specially exempted by law. § 1031. The evidence of the right to exemption, as prescribed in the last section, is as follows: 1. Under subdivision second thereof, the certificate of the superintendent, or other principal officer of the asylum. Evidence of exemp tion in cer. tain cases. |