« PreviousContinue »
tions, where th cause thereof
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 pre
scribed in section nine hundred and eighty-four of this act. Other ac. 8 983. An action, for either of the following causes, must be tried
in the county, where the cause of action, or some part thereof, arose :
3. To recover a penalty or forfeiture, imposed by statute; except arose. 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. tions, ac
C: $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 commencedence of 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 8 985. If the county, designated in the complaint, as the place of
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
the demand of the defendant, followed by the consent of the plaintiff,
or the order of the court. Defendant S 986. Where the defendant demands that the action be tried in the
proper county, his attorney must serve upon the plaintiff's attorney,
with the answer, or before service of the answer, a written demand proceed
accordingly. The demand must specify the county, where the defendupon 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. When § 987. The court may, by order, change the place of trial, in either change the of the following cases :
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. Efect of $ 988. Where the place of trial is changed to another county, the changing the place
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 demand change ;
place of trial,
ART. 3. thereto, which must be filed, entered, or recorded, as the case requires, in the office of the last named clerk.
8 989. An order to change the place of trial takes effect, upon the Effect of ontry thereof, in the office of the clerk of the county, from which the place of trial is changed. But for the purposes of the place of hearing, place of
trial. a motion to set it aside, or an appeal therefrom, the place of trial is “de deemed unchanged. § 990. An issue of law may be tried in any county, within the Issues of
law, where judicial district embracing the county wherein the action is triable; triable. but after the trial, the decision and all other papers relating to the trial must be filed, and the 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.
cable only to the supremo court.
EXCEPTIONS, CASE, AND MOTION FOR A NEW TRIAL.
SECTION 992. What rulings may be excepted to.
993. Refural of court or referee, to find upon facts may be excepted to.
1000. When and how exceptions, taken upon a jury trial, heard at general
cial provisions applicable thereto.
may be heard afterwardis.
1007. Notes of stenographer may be treated as minutes of the judge. $ 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 rulinge
| may be ex. 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.
$ 993. Upon the trial of an issue of fact by a referee, or by the court, court or without a jury, a refusal to make any finding whatever, upon a quesretereo, to tion of fact, where a request to find thereupon is seasonably made by facts may either party, or a finding without any evidence tending to sustain it, be except. ecl to.
is a ruling upon a question of law, within the meaning of the last
section. When and $ 994. Where an issue of fact is tried by a referee, or by the court, how ex. ceptions without a jury, an exception to a ruling, upon a question of law, made may be
af. after the cause is finally submitted must be taken, by filing a notice ter close or of the exception in the clerk's office, and serving a copy thereof upon trial by
the attorney for the adverse party. The exception may be so taken, at referee.
any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment
the trial, or
judgment, it must be inserted in the judgment-roll; if afterwards, it must be annexed to the judgment-roll. In either case, it constitutes a part of the papers, upon which an appeal from the judgment must be
heard. Id.; during S995. In any other case, an exception must be taken, at the time upon trial when the ruling is made, unless it is taken to the charge given to the by jury. jury ; in which case, it must be taken before the jury have rendered
their verdict. It must, at the time when it is taken, be reduced to
writing by the exceptant, or entered in the minutes. Ruling ex g 996. A ruling, to which an exception is taken, as prescribed in the cepted to; how ro- last four sections, can be reviewed only upon an appeal from the judg
ment, rendered after the trial; except in a case, where it is expressly
prescribed by law, that a motion for a new trial may be made thereupon. Case, when & 997. Where a party intends to appeal from a judgment, rendered how made ade after the trial of an issue of fact, or to move for a new trial of such an
issue, he must, except as otherwise prescribed by law, make a case,
court, without a jury. When ap. $ 998. It is not necessary to make a case, for the purpose of ioving may be for a new trial, upon the minutes of the judge, who presided at a trial beard with with. by a jury; or upon an allegation of irregularity, or surprise; or where
a party intends to appeal from a judgment entered upon a referee's report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptionis, taken as prescribed in section nine hundred
and ninety-four of this act. Motion for 8 999. The judge, presiding at a trial by a jury, may, in his discre
tion, entertain a motion, made upon his minutes, at the same term, to
out & case.
new trial upon
set aside the verdict and grant a new trial, upon exceptions; or because : the verdict is for excessive or insufficient damages; or otherwise con- minutes trary to the evidence, or contrary to law. If an appeal is taken from appearder the order, made upon the motion, it must be heard, upon a case, pre- thereupon. pared and settled in the visual manner.
S 1000. Upon the application of a party who has taken one or more when and exceptions, the judge, presiding at a trial by a jury, may, in his dis- bior cretion, at any time during the same term, direct an order to be entered, upon a ju
ry trial, that the exceptions so taken be heard, in the first instance, at the geil- heard at eral term; and that judgment upon the verdict be suspended, in the general mean time. At any time before the hearing of the exceptions, the order may be revoked or modified, upon notice, in court or out of court, by the judge who made it; or it may be set aside for irregu- . larity, by the court, at any term thereof. Unless it is so revoked or set aside, the exceptions must be heard upon a motion for a new trial, which must be decided by the general term. The motion is deemed to have been made, when the order was granted; and either party may notice it for hearing at the general term, upon the exceptions.
$ 1001. Where the decision or report, rendered upon the trial of an Motion for issue of fact by the court, without a jury, or by a referee, directs an new.trial interlocutory judgment to be entered; and further proceedings must ieri, when
trial was by be taken, before the court, or a judge thereof, or a referee, before a final judgment can be entered; a notion for a new trial, upon one or reforoo. more exceptions, may be made at the general term, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The time within which the party must except, for that purpose, to a ruling of law, made, upon such a trial, by the judge or the referee, after the close of the testimony, is ten days after service of a copy of the decision or report, and notice of the entry of the interlocutory judgment thereupon.
S 1002. In a case, not specified in the last three sections, a motion for when moa new trial must, in the first instance, be heard and decided at the tion for
O new trial to special term. But where it is founded upon an allegation of error, in be made at a finding of fact, or ruling upon the law, made by the judge upon the form. Retrial, it cannot be heard at a special term, held by another judge; unless strictions
thereupon. the judge, who presided at the trial, is dead, or his term of office has expired, or he specially directs the motion to be heard before another judge. And a trial by a referee cannot be reviewed, by a motion for a new trial, founded upon such an allegation, except in a case specified in the last section. $ 1003. The provisions of this article, relating to the proceedings to Applica
tion of this review a trial by a jury, are applicable to the trial, by a jury, of one or more specific questions of fact, arising upon the issues, in an action trials of triable by the court. But, except in a case specified in section nine questions hundred seventy of this act, a new trial may be granted, as to by jury; some of the questions so tried, and refused as to the others; and an provisions error, in the admission or exclusion of evidence, or in any other ruling an or direction of the judge, upon the trial, may, in the discretion of the conrt which reviews it, be disregarded ; if that court is of opinion, that substantial justice does not require that a new trial should be granted. Where the judge, who presided at the trial, neither entertains a motion for a new trial, nor directs exceptions, taken at the trial, to be heard at the general term, a motion for a new trial can be made only at the term, where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires.
tions by a referee.
by motion for a new
tion may be heard
$ 1004. In an action triable by the court, where a reference has been new hear: made, to report upon one or more specific questions of fact, involved in ing, after.. the issue, a motion for a new hearing may be made at a special term, cific ques. at any time before the hearing of a motion for final judgment, or the
trial of the remaining issues of fact. The motion must be made upon affidavits, unless the court, or a judge thereof, directs a case to be pre
pared and settled. Final judg: S 1005. The entry of final judgment, and the subsequent proceedings ment, etc., not stayed to collect or otherwise enforce it, are not stayed by an exception, the
preparation or settlement of a case, or a motion for a new trial, unless trial. Mo. an order for such a stay is procured and served; and the entry, collec
a tion, or other enforcement of a judgment does not prejudice a subsequent afterwards. motion for a new trial. Where a new trial is granted, the court may
direct and enforce restitution, as where a judgment is reversed upon
appeal. When ex.. Š 1006. The taking of an exception, upon a trial by a jury, or the to preju.° statement thereof in a case, as prescribed in this article, does not preju
dice a motion for a new trial, on the ground that the verdict was tion for new rial. contrary to evidence; but such a motion may be made, before or after
the hearing of the exception; or, in the discretion of the court before
which the exception is heard, at the time of the hearing. Notes of S 1007. The notes of an official stenographer or assistant-stenog. pher may rapher, taken at a trial, when written out at length, may be treated, in be treated the discretion of the judge, as the minutes of the judge upon the trial,
** for the purposes of this article. judge.
as minutes of the
Trials without a jury.
SECTION 1008. If trial by jury waived, action must be tried by the court.
1009. Trial by jury; how waived.
1026. Proceedings regulated where there are several referees. IP trial by 81008. In an action triable by a jury, if the parties waive the trial, Waived, ac. by a jury, of the issue of fact, the action must be tried by the court,