PART III. All issues referable CHAPTER V. TRIAL BY REFEREES. SEC. 270. All issues referable by consent. 271. When reference may be compulsorily ordered. 272. Report to stand as decision of the court. 273. Referees, how chosen. $270. All or any of the issues in the action, whether of by consent. fact or of law, or both, may be referred, upon the written consent of the parties. When re ference may be 32 B., 553; 9 B., 385; 17 How. P. R., 27; 7 How. P. R., 41, 259; 5 How. P. R., 341; 4 How. P. R., 290; 9 Ab., 2, 435; 7 Ab., 71; 5 Ab., 333; 4 Ab., 479; 3 Ab., 171. $271. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except rily order where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: compulso ed. Trial by referces. 1. Where the trial of an issue of fact shall require the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. 20 N. Y., 252; 16 N. Y., 419; 1 N. Y., 427; 32 B., 553; 22 B., 319; 16 B., 539; 9 B., 387; 19 How. P. R., 143; 18 How. P. R., 311; 11 How. P. R., 440; 10 How. P. R., 351; 9 Ab., 2; 7 Ab., 72; 4 Ab., 479. S272. The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They shall have the same power to grant adjournments and to allow amendments to any pleadings, and to the summons, as the court upon such trial, upon the same terms and with the like effect. They shall have the same power to preserve order and punish all violations thereof, upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them, as for a contempt, for non-attendance, or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal under section 268, and they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of a special verdict. When the case on appeal shall have been heard and decided at the general term, upon the report of the referee and exceptions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the court of appeals. If the judgment be reversed at the general term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the court of appeals. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723; 1859, 22 N. Y., 570; 20 N. Y., 252; 13 N. Y., 308, 346; 12 N. Y., 558, 588; CHAP. XI. ment of $273. In all cases of reference, the parties, except when an Appoint infant may be a party, may agree in writing upon a person or referees, persons, not exceeding three, and a reference shall be ordered to him or them, and no other person or persons. And if the parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object, except in actions for divorce. And no justice or judge of any court shall sit as referee in any action, pending in the court of which he is a judge, and not already referred. Unless the court shall otherwise order, the referee or referees shall make and deliver his report within sixty days from the time the action shall be finally submitted, and on default thereof said referee or referees shall not be entitled to receive any fees, and the action shall proceed as though no reference had been ordered. Amended by Laws of 1851, ch. 479; 1862, ch. 460; 1863, ch. 392. CHAPTER VI. MANNER OF ENTERING JUDGMENT. SEC. 274. Judgment may be for or against any of the parties. 275. The relief to be awarded to the plaintiff. 276. Rate of damages, where damages are recoverable. 277. Judgment in action for recovery of personal property. 278. Judgment upon issue of law or of fact, to be upon direction of a single judge, or on report of referees, subject to review at general term. 279. Clerks to keep a judgment book. 280. Judgment to be entered in judgment book. may be for $274. Judgment may be given, for or against one or more Judgment of several plaintiffs, and for or against one or more of several or against defendants, and it may determine the ultimate right of the parties. parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be PART III. Actions against married women. The relief to be the plain entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the complaint with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. In an action brought by or against a married woman, judgment may be given against her, as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate and not otherwise. And in any proceeding to enforce such judgment, the supreme court shall have jurisdiction, though the amount be less than one hundred dollars. Amended by Laws of 1852, ch. 392; 1862, ch. 460. 12 N. Y., 165; 11 N. Y., 143, 301; 28 B., 666; 25 B., 215; 23 B., 262, 263; 22 B., 370, 536, 650; 20 B., 339, 342; 18 B., 597; 17 B., 105, 426; 16 B., 42, 292, 328; 15 B., 369, 525; 12 B., 119; 8 B., 656, 666; 20 How. P. R., 151, 195; 14 How. P. R., 95, 360; 10 How. P. R., 508; 9 How. P. R., 361; 8 How. P. R., 66, 153, 454; 7 How. P. R., 327; 6 How. P. R., 50, 259, 405; 5 How. P. R., 302; 4 How. P. R., 73, 306; 11 Ab., 246; 10 Ab., 385; 9 Ab., 18, 417; 8 Ab., 75; 7 Ab., 261; 6 Ab., 68; 5 Ab., 60; 4 Ab., 367; 1 Ab., 2, 48, 141. § 275. The relief granted to the plaintiff, if there be no awarded to answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. tiff. Rate of damages 20 N. Y., 64; 12 N. Y., 341; 32 B., 206, 30 B., 340; 28 B., 190; 26 B., R., 131; 7 How. P. R., 420, 478; 12 Ab., 333; 11 Ab., 233, 246; 7 $276. Whenever damages are recoverable, the plaintiff where may claim and recover, if he show himself entitled thereto, coverable. any rate of damages, which he might have heretofore recovered for the same cause of action. damages re Judgment ir. action ry of personal pro perty. 31 B., 65; 10 Ab., 20. $277. In an action to recover the possession of personal for recove property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. Judgment upon issue 22 N. Y., 426; 9 N. Y., 473, 562; 27 B., 484; 23 B., 240; 16 B., 314; 10 Ab. 2; 4 Bos., 94. $278. Judgment upon an issue of law, or of fact, or upon how enter- confession, or upon failure to answer, (except where the clerk is authorized to enter the same by the first subdivision of sec ed. tion two hundred and forty-six, and by section three hundred and eighty-four, and except where it may be given at the general term as provided in section two hundred and sixtyfive,) shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided. Amended by Laws of 1851, ch. 479; 1852, ch. 392. 27 B., 192; 8 B., 574; 20 How. P. R., 258; 16 How. P. R., 538; 9 How. CHAP. XI. $279. The clerk shall keep among the records of the court, Clerk to a book for the entry of judgments, to be called the "judgment judgment book." 23 B., 248; 16 B., 659; 8 Ab., 300. keep a book. $280. The judgment shall be entered in the judgment Judgment book, and shall specify clearly the relief granted, or other to be enter determination of the action. 16 B., 659; 6 How. P. R., 226; 8 Ab., 300, 315; 4 Ab., 92; 3 Bos., 644. ed in judgment book. roll. $281. Unless the party or his attorney shall furnish a Judgment judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll: 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. 2. In all other cases the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment. Amended by Laws of 1851, ch. 479; 1852, ch. 392. 22 B., 323; 16 B., 659; 20 How. P. R., 258; 15 How. P. R., 422; 11 in what docketed. § 282. On filing a judgment roll upon a judgment, directing Judgment in whole or in part the payment of money, it may be docketed cases and with the clerk of the county where it was rendered, and in how to be any other county, upon the filing with the clerk thereof a transcript of the original "docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered. But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, on such terms as they PART III. Execution within five years, of course as shall see fit, direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal," and thereupon it shall cease during the pending of the appeal to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith. As amended by Laws of 1851, ch. 479. 16 B., 660; 9 How. P. R., 86; 8 Ab., 162; 6 Ab., 72; 4 Ab., 271; 3 Ab., 231; 2 Ab., 409; 1 Ab., 135. TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. II. Proceedings supplementary to the execution. CHAPTER I. THE EXECUTION. SEC. 283. Execution within five years, of course, as prescribed by this title. 284. After five years, to be issued by leave of court. Leave, how obtained. When unnecessary. Execution on judgment of justices' or other inferior courts when docketed, how issued. 285. Other judgments, how enforced. 286. The different kinds of execution. 287. To what counties execution may be issued. 288. Execution against the person, in what cases, and when. 289. Form of the execution. 290. To be returnable în sixty days. 291. Existing laws relating to execution continued, until otherwise provided. $283. Writs of execution for the enforcement of judgments as now used, are modified in conformity to this title, and the prescribed party in whose favor judgment has been heretofore or shall by this title. hereafter be given, may at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title. After five years to be Issued by leave of court. 18 N. Y., 153; 30 B., 506; 14 How. P. R., 393; 4 How. P. R., 100, 101; 3 How. P. R., 369; 13 Ab., 412; 3 Ab., 140, 230; 2 Ab., 118; 1 Ab., 135, $284. After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which case such service may be made by publicaLeave how tion, or in such other manner as the court shall direct. Such leave shall not be given, unless it be established by the oath of the party, or other satisfactory proof that the judgment or some part thereof remains unsatisfied and due. obtained. But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part. When judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the other infe county court of the county where the judgment was rendered, Execution on judgment of justices' or |