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M.Quade agt. The New York & Erie Railroad Co.

It is the common practice for the judge at the circuit, on the rendition of the verdict, to make an order for an allowance; but we do not think such an order can be deemed effectual, if the verdict is afterwards set aside, and a new trial granted.

In Hicks agt. Waterman, (7 How. Pr. R. 370,) the plaintiff obtained a report of referees in his favor, and an allowance of a per centage.

The report was afterwards set aside, and a new trial granted on defendant's “ paying to the plaintiff the costs of the reference heretofore had.” Mr. Justice Barculo decided that the terms of the order did not entitle the plaintiff to the per centage, and that, on a proper construction of the Code, the defendant could not be required to pay it.

These extra allowances, like those whose amounts are specified in $ 307, when made, are, in the language of $ 303, granted to the prevailing party “by way of indemnity for his expenses in the action.”

In this view of the provisions of the title relating to costs, this court has often refused to allow a per centage when the cause had been over four or five times on the calendar, when one would have been granted if it had been tried at an earlier day after issue joined. Such a practice would be unreasonable, if the extra allowance is made solely or mainly to compensate for the expenses of a trial.

In several classes of cases, enumerated in 308, an extra allowance may be made, though no trial is had. In the latter cases it is made by way of indemnity for expenses which are neither created nor increased by a trial. In cases in which a trial has been had, it is granted by way of indemnity against the expenses of the proceedings in every stage of the action down to the entry of judgment. We are of the opinion that the plaintiff is not entitled, under the decision granting a new trial, to the $175 dollars. That when a new trial is granted for causes which, according to the settled practice of the courts, require the condition to be imposed, that the costs of the trial be paid; any extra allowance which may have been granted,"

Draper and others agt. Dav & Orvis.

should not be deemed a part of the costs to be paid, 'nor payment of them be required.

If these views are correct, the defendants have paid all that they were required to pay, to comply with the conditions on which a new trial was granted.

The motion must be denied.


Draper and others agt. DAY & Orvis.

An issue of fact formed by the pleadings, in an action to set aside an assignment for the benefit of creditors, for fraud, not requiring the examination of an account, must be tried by the court, unless ordered (on motion) to be tried by a jury, or referred by consent of parties. It is not a referable cause under the Code.

Essex Special Term, July, 1855.
Motion to refer.

The action is against a judgment-aebtor and his assignee, to set aside an assignment for the benefit of his creditors for fraud; and to have the avails of the assigned property applied in payment of the judgment.

On the part of the defendants, it is objected that the court has no power to order a reference in such case, either to hear and determine the cause, or to report the evidence on the facts. But it is insisted that the cause must be tried by the court, unless, on motion, the court order it to be tried by jury.

H. Gibson, for plaintiffs.
MILLARD & King, for defendants

Bockes, Justice. The distinctions formerly existing betweer actions at law and suits in equity are abolished; (Code, $ 69 :)

Draper and others agt. Day & Orvis.

and, as will be seen by reference to the preamble to the Code, it was intended thereby to establish a uniform course of proceeding in all cases. All statutory provisions, too, inconsistent with the provisions of the Code, are repealed. (Code, 9 468.) And the former rules and practice of the courts in civil actions, so far as they are inconsistent therewith, are abrogated. (Code, $ 469.)

The supreme court being vested with law and equity powers, and the old distinctions between actions being abolished, and the former rules and practice of the courts being abrogated, so far as such distinctions, rules and practice were inconsistent with the Code, actions at law and in equity must stand alike, in regard to the mode of disposing of issues by trial. All issues of law must be tried by the court, unless referred by consent of parties, or by order of the court, pursuant to § 271. (Code, Ø 253, 270, 271.) The issue, in this case, is one of fact, and the question is, how is it to be tried ?

The Code provides three modes of trial of issues of fact-by jury, by the court, and by referees. Issues of fact which must be tried by a jury, unless a jury trial is waived, or unless referred by consent or order of the court, are such as are raised in actions for the recovery of money only, or for the recovery of specific real or personal property, or for a divorce on the ground of adultery. (Code, § 253.)

Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it, as provided in $$ 270, 271.

This case, not being one which must be tried by a jury, unless a jury trial is waived, or unless referred, the issue therein appropriately belongs to the court to try—and must be tried by the court, unless ordered to be tried by a jury, or referred. The reference is given pursuant to $ 270, 271. (Code, $ 254.) Section 270 provides for references by consent of parties, and of course has no application to this motion.

Then, is this action referable under $ 271? Clearly not. The trial will not require the examination of a long account,

Draper and others agt. Day & Orvis.

as can be discovered from the moving papers; nor is the taking of an account necessary; nor does the case now present any question of fact other than upon the pleadings. Under the provisions of the Code, therefore, this case, as presented, is not referable.

The plaintiffs' counsel insists, that the cause may be referred under $ 77 of the judiciary act of 1847. (Sess. Laws 1847, chap. 280, pp. 319, 344.) But in my judgment this section was not intended to embrace the reference of a cause, either for the purpose of determining it by a trial, or to report the facts or evidence, but was intended to apply to interlocutory matters in the progress of the cause-such as computations of interest, and similar services; services which left the merits of the action to be determined by the court on an ordinary and formal trial.

To hold that a reference to take and certify the evidence might be ordered without the consent of parties, would continue one of the evils which our present judicial system was intended to remedy. It is a just requirement, one which our sense of propriety and justice commends, that the evidence in a cause, when practicable, be given in the presence of those who are to adjudicate thereon.

The motion must be denied, and the cause must be tried by the court, in case the parties will not stipulate to refer. Had a motion been made within ten days after the issue was joined, (Rule 70,) and excuse therefor shown, the issues would have been settled, and an order granted that they be tried by jury.

Smith and others agt. Rosenthall.


Smith and others agt. RosenthALL.

An aflidavit of verification, of a complaint on a promissory note, made by an

attorney of the plaintiff, stating, in addition to what is required in an affidavit of verification by a party, that he is such attorney, and that he has in his possession the note on which the action is brought, is a sufficient verification.

Monroe Special Term, October, 1855.

Motion to set aside the judgment in favor of the plaintiffs for irregularity.

C. G. LOEBER, for defendant. .
J. L. Angle, for plaintiffs.

T.R. STRONG, Justice. The principal question on this motion is, as to the sufficiency of the affidavit of verification of the complaint. If it is insufficient, the answer of the defendant, although not verified, should have been received, and the judgment entered as upon a default to answer, is irregular, and must be set aside.

The complaint is upon a promissory note, alleged to have been made by the defendant to the plaintiffs, and is wholly upon information and belief. The verification is by the affidavit of one of the attorneys of the plaintiffs, who states, in addition to what is required in an affidavit of verification by a party, that he “has in his possession the promissory note on which the action is brought.” That is the whole of the affidavit. · It is insisted, on the part of the defendant, that the affidavit is defective in omitting to state the grounds of the belief of the attorney that the complaint is true, and the reason why it is not made by the party; and the precise points presented are, whether the third clause of § 157, of the Code, is applicable to

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