TITLE VIII. Of the trial and judgment in civil actions, 82–93. Judgment upon failure to answer, 82-84. SECTION 245. Judgment, what, 82. 246. Judgment on failure of defendant to answer, 82. CHAPTER II. Issues and the mode of Trial, 84-85. SECTION 248. The different kinds of issues, 84. 249. Issue of law, 84. 250. Issue of fact, 84. 251. On issues of both law and fact, the issue of law to be first tried, 84. 252. Trial what, 84. 253. Issue of fact to be tried by jury, unless waived or reference ordered, 85. 254. Other issues to be tried by the court, 85. 255. All issues to be tried before a single judge, 85. 256. Either party may give notice of trial. Note of issue, 85. CHAPTER III Trial by Jury, 86–89. SECTION 258. Either party may bring issue to trial, 86. 259. Plaintiff to furnish court with copy summons, pleadings, &c., 86. 260. General and special verdicts defined, 86. 261. Verdict in action for recovery of specific personal property, when in action for recovery of money only, or real property, jury may render either general or special verdict; and when court may direct special finding, 86. 262. On special finding, with general verdict, former to control, 87. 263. In actions for recovery of money only, jury to assess dama. ges, 87. 264. Entry of verdict, 87. 265. Judgment when to be entered, 88. SECTION 266. 267. CHAPTER IV. Trial by the court, 89-90. Trial by jury how waived, 89. On trial by the court, judgment to be given in twenty days, 89. 268. Exceptions, how and when taken, 89. 269. Proceedings upon judgment on issue of law, 90. CHAPTER V. Trial by referees, 90-91. SECTION 270. All issues referable by consent, 90. 271. When reference may be compulsorily ordered, 90. CHAPTER VI. Manner of entering judgment, 91-93. SECTION 274. Judgment may be for or against any of the parties, 91. 276. Rate of damages, where damages are recoverable, 92. 279. Clerk to keep a judgment book, 92. 280. Judgment to be entered into judgment book, 92. 282. Judgment, in what cases and how to be docketed, 93. TITLE IX. Of the execution of the judgment in civil actions, 94-101. CHAPTER I. The execution, 94-97. II. Proceedings supplementary to the execution, 97-101. CHAPTER I The execution, 91-97. SECTION 283. Execution within five years, of course, as prescribed by this title, 94. 284. After five years, to be issued only by leave of court. Leave, how obtained. Execution on judgment of justices' or other inferior courts when docketed, how issued, 94. 285. Other judgments, how enforced, 95. 286. The different kinds of execution, 95. 287. To what counties execution may be issued, 95. 288. Execution against the person, in what cases, and when, 95. 289. Form of the execution, 96. 290. To be returnable in sixty days, 97. 291. Existing laws relating to execution continued, until otherwise provided, 97. CHAPTER II. Proceedings supplementary to the execution, 97-101. SECTION 292. When execution returned unsatisfied, order for discovery of property allowed. Also when judgment debtor refuses to apply property to satisfy judgment. Manner of proceed. ing to examine judgment debtor, 97. 293. Any debtor may pay execution against his creditor, 99. 294. Examination of debtors of judgment debtor or of those having property belonging to him, 99. 295. Witness required to testify, 99. 296. Compelling party or witnesses to attend. Examinations when to be on oath, 99. 297. Judge may order property to be applied on execution, 100. 298. Judge may appoint receiver, and prohibit transfer, &c., of property, 100. 299. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor, 100. 300. Reference by judge, 101. 301. Costs of proceedings, 101. 302. Disobedience of order, how punished, 101. TITLE X. Of the costs of civil actions, 101–107. SECTION 303. Fee bill abolished. Allowances given, termed costs, 101. 304. When allowed, of course, to plaintiff, 102. 305. When allowed to defendant, 103. 306. When allowed to either party in the discretion of the court, 103. 307. Amount of costs allowed, 103. 308. Allowance, in addition, of a percentage on the recovery or claim, 104. 309. Percentage, how computed, 104. 310. Interest on verdict or report, when allowed, 105. 311. Costs, how to be inserted in judgment, 105. 312. Clerk's fees, 105. 313. Referee's fees, 106. 314. Costs on postponement of trial, 106. 315. Costs on a motion, 106. 316. Costs against infant plaintiff, 106. 317. Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorised by statute to sue, 106. 318. Costs on review of a decision of an inferior court, in a special proceeding, 106. 319, 320. Costs in actions by the people, 107. 321. Costs against assignee of cause of action after action brought, 107. 322. Costs on a settlement, 107. TITLE XI. Of appeals in civil actions, 108. CHAPTER I. Appeals in general, 108-109. II. Appeals to the court of appeals, 110-113. III. Appeals to the supreme court from an inferior court, 113-114. IV. Appeals in the supreme court, and the superior court, and the court of common pleas of the city of New-York, from a single judge to the general term, 114-115. CHAPTER V. Appeal to the court of common pleas for the city and county of New-York, or to a county court, from an inferior court, 115-120. CHAPTER I. Appeals in general, 108. SECTION 323. Writs of error abolished, and appeals substituted, 108. 324. Orders made out of court, how vacated or modified, 108. 325. Who may appeal, 108. 826. Parties how designated on appeal, 108. 827. Appeal how made, 108. 328. Clerk to transmit papers to appellate court, 109. 329. Intermediate orders affecting the judgment, may be reviewed on the appeal, 109. 230. Judgment on appeal, 109. 831. Certain appeals to be within two years, 109. CHAPTER II. Appeals to the Court of Appeals, 110-113. SECTION 333. In what cases, 110. 334. On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived, 110. 835. On judgment for money, security to stay execution, 110. 336. If judgment be to deliver documents, they must be deposited, 110. 337. If to execute conveyance, it must be executed and deposited, 111. 238. Security where judgment is to deliver property, for a sale of mortgaged premises, 111. 339. Stay of proceedings upon security given, 111. 340. Undertakings may be in one instrument, or several, 112. 341. Security to be approved and to justify,112.. 342. Perishable property may be sold, notwithstanding appeal, 112. 343. Undertaking must be filed, 113. CHAPTER III. . Appeal to the Supreme Court from an inferior court, 113-114. SECTION 344. In what cases, 113. 345. Security must be given as upon appeal to the court of appeals, 113. 346. Appeal, where heard, 113. 347. Judgment on appeal, where entered and docketed, 113. CHAPTER IV. Appeals in the supreme court, and the superior court and court of common pleas of the city of New-York, from a single judge, to the general term, 114-115. SECTION 348. Appeals from circuits and special terms to same court in general term. Security on appeal, 114. 3. When it involves the merits of the action, or some part thereof; 4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken ; 5. When the order is made upon a summary application in an action after judgment, and affects a substantial right. chambers, to be entered, before appeal. § 350. The last section shall include an order made out Orders at of court upon notice; but in such case the order must be first entered with the clerk. And for the purpose of an an appeal, any party affected by such order, may require it to be entered with the clerk, and it shall be entered accordingly. CHAPTER V. Appeal to the court of common pleas for the city and county of New-York, or to a county court, from an inferior court. SECTION 351. Existing laws repealed, and this chapter substituted. 352. By what courts judgments to be reviewed. 353. Appellant to make affidavit. 354. Copy affidavit and notice of appeal to be served. 356. Form of undertaking. 357. Execution, how stayed. 358. In case of death of justice, undertaking to be filed. 359. Counter affidavits allowed, and when and how served. 360. Return when and how made, and compelled. 361. How made if justice be out of office. 362. Further return may be ordered. 363. If justice be dead, insane or absent from State, witnesses to 364. Hearing, upon return. Dismissing appeal, if not brought on. 365. To be heard on original papers. 367. Judgment roll. 368. Costs, how awarded. 369. Ordering restitution. 370. Setting off costs and recovery. laws re this chapter § 351. All statutes, now in force, providing for the re- Existing view of judgments in civil cases, rendered by courts of pealed, and justices of the peace, by the marine court of the city substituted. of New-York, by the justices' courts in the city of NewYork, by the municipal court of the city of Brooklyn, and by the justices' courts of cities, and regulating the prac |