trial of 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 subpœnaed. General powers of upon a 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 attorney, 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; sequence § 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. port of ref § 1021. The decision of a court, or the report of a referee, upon the Decision of trial of a demurrer, must direct the judgment to be entered there- court or reupon, or other disposition of the cause, as prescribed in section one eree, upon thousand and eighteen of this act. trial of de murrer. 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. Where the trial is by the court, the decision must also fix the amount of the extra allowance, if any, to be added to the costs on taxation. to deter ticular § 1023. Before the cause is finally submitted to the court or the Parties referee, or within such time afterwards, and before the decision or may require court 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, tuestions. 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 the 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. 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 which he is a judge, except by the written consent of the parties; and, in that case, he cannot receive any compensation as referee. referees § 1025. Where the court is authorized to appoint a referee, it may, Several in its discretion, appoint either one or three. And where a reference may be apis 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 referees. of those present, at a time and place appointed for the trial, may adjourn the trial to a future day. 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. 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 respecting 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 provision 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 dis qualified. § 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 memoer of the Legislature, during the session of the house, of which he is a member. ART. 1. 4. A judge of a court of record, or a surrogate. 5. A sheriff, under-sheriff, or deputy-sheriff. 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 and counsellor at law, in actual practice as such, and not following any other calling. 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 exemption in cer tain cases, TITLE 3. When juror to be 2. Under subdivision third thereof, the certificate of the warden, or other principal officer, of the State prison, or the sheriff of the county, as the case requires. 3. Under subdivision eleventh thereof, where the applicant is a noncommissioned officer, musician, or private, in a company or troop of the national guard, the certificate of the commanding officer of the company or troop, accompanied with proof, by affidavit, of the genuineness of the signature thereto. 4. Under the last clause of subdivision eleventh, or under subdivision twelfth thereof, in the discretion of the court, the discharge of the person from military service, if it shows the facts entitling him to exemption. 5. Under the first clause of subdivision thirteenth thereof, where the applicant is under the rank of foreman, the certificate of the foreman, or other chief officer, of the company, to which the applicant belongs, accompanied with proof, by affidavit, of the genuineness of the signature thereto. 6. Under the last clause of subdivision thirteenth thereof, the certificate of the chief engineer of the fire department of the city or village, where the service was performed, or of the mayor or president of the city or village. A certificate, specified in this section, must be dated within three months before the time of presenting it, and filed with the clerk of the court, to which it is presented. § 1032. The court must discharge a person from serving as a trial discharged juror, in either of the following cases: from serving. When juror to be 1. Where it satisfactorily appears that he is not qualified. 2. Where it satisfactorily appears that he is exempt, and he claims the benefit of the exemption. Where a person is discharged, for either of the causes specified in this section, the clerk must destroy the ballot, containing his name. § 1033. Úpon satisfactory proof of the facts, a court, at the term to which a person is returned as a trial juror, must excuse him from servfrom serving during the whole, or a portion of the term, in either of the following. excused Application of this article, as respects New York and Kings counties. ing cases: 1. Where he is a justice of the peace, or executes any other civil office, the duties of which are, at the time, inconsistent with his attendance as a juror. 2. Where he is a teacher in a school, actually employed and serving as such. 3. Where, for any other reason, the interests of the public, or of the juror, will be materially injured by his attendance; or his own health, or the health of a member of his family, requires his absence; or he is temporarily incapacitated, for any reason, from properly discharging the duties of a juror. Where a person is excused, in either of the cases specified in this section, the ballot, containing his name, must be returned to the box from which it was taken. § 1034. Section ten hundred and twenty-nine of this act applies throughout the State. The remainder of this article does not apply to New-York, or the county of Kings. the city and county of 196 |