§ 256. (Am'd 1858, 1859, 1860, 1863, 1865, 1869.) Either party may give notice of trial. Note of issue. Stenographer.

At any time after issue, and at least fourteen days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least eight days before the court, with a note of the issue containing the title of the action, the names of the attorneys, and the time when the last pleading was served, and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. In the first judicial district there need be but one notice of trial, and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In every action in which issue of fact is now joined, and the action is now placed upon the calendar of the Supreme Court of the first judicial district, or of the Superior Court of the city of New York, or of the Court of Common Pleas for the city and county of New York, the party who shall have filed such note of issue, shall, as a condition precedent to such action being brought to trial, pay to the clerk of the court the sum of three dollars; and in every action in either of the said courts, commenced after the passage of this act, the party who shall file therein a first note of issue of fact, shall, as a condition precedent to such filing, pay to the clerk of the court the sum of three dollars; and the amounts so received shall be accounted for under oath, and paid over monthly, by the clerk of each of said courts, to the comptroller of the city of New York, and by him. deposited in the county treasury, to be used as a fund for the payment of the salaries of stenographers employed in said courts, as provided for in this section. If the fund thus created be inadequate to pay such salaries, the additional amount necessary for such payment shall be appropriated and paid from the fund of county contingencies, to which fund any surplus of the sums so paid over to the comptroller as herein before provided shall be credited.

Each of the courts herein before named shall appoint a stenographer for the circuit, trial term or special term at which issues of fact are tried, which constitutes a separate branch of such court, who shall be a sworn officer of the court, shall hold office during the pleasure of the court, and shall be paid a salary of twenty-five hundred dollars per annum, in like manner as the salaries of the other officers of the courts are now paid. It shall be the duty of

every stenographer so appointed for any circuit, trial term or special term, under the direction of the presiding judge thereof, to take full stenographic notes of all proceedings in every trial thereat; and in case the presiding judge shall require a transcript of said stenographic notes, he may order the expense thereof to be paid equally by the parties to the action, at the rate of ten cents for every one hundred words so transcribed, and may enforce payment thereof, and the amount so paid, together with the sum paid as a condition precedent to the cause being brought to trial, or to the first note of issue being filed as herein before provided, shall be deemed a necessary disbursement within the meaning of section three hundred and eleven of the Code of Procedure, and shall be allowed as such to the prevailing party in the action.

At any extra circuit, trial term or special term of said courts, the presiding judge thereof shall appoint a stenographer for such extra circuit or term, who shall in like manner as aforesaid be a sworn officer, and who shall be paid a compensation at the rate and in the manner herein before provided. When a court of Oyer and Terminer shall be held in and for the city and county of New York, the presiding judge thereof shall designate one of the stenographers of the Supreme Court to act as stenographer of such Court of Oyer and Terminer during its session, who shall, in like manner as aforesaid, be a sworn officer, but who shall receive no compensation in addition to his salary as hereinbefore provided, except that in case a transcript of his stenographic notes, taken on the trial of any criminal cause, be required for the use of the presiding judge, or the district attorney, the expense thereof shall, on the order of such judge or district attorney, be paid as a county charge, at the rate hereinbefore specified.

The surrogate of the county of New York is hereby authorized and directed to appoint a stenographer to the Surrogate's Court of said county, who shall be a sworn officer of the court, and shall be paid a salary of three thousand dollars a year, in like manner as the salaries of clerks in said court are now paid by law from the fees of said court, paid into the treasury of the county of New York. The stenographer so appointed, shall be skilled in the practice of his art, and shall hold his position during good behavior, and so long as he efficiently discharges the duties of his office. He shall, under the direction of the said surrogate, take full stenographic notes of all proceedings in said court, in which oral proofs shall be given, which notes shall be fairly transcribed,

and after being signed by the witnesses, deponent or affiant, shall be filed in the office of said surrogate. By consent of the parties to the proceeding in which such proofs shall be taken, and said surrogate, the signing of such record of proof by the witness, deponent or affiant, may be waived, in which case such record, after being authenticated by the certificate of said stenographer, or of said surrogate, shall be deemed to be the record of any proofs or proceedings so taken.

In other counties of this State, on trials of issues of fact, at any Circuit Court, or Court of Oyer and Terminer, it shall be lawful for the presiding justice, in his discretion, to employ a stenographer, who shall be entitled to such compensation as shall be certified by such justice, not exceeding five dollars for each day's attendance at such court, at the request of such justice, and ten cents a mile for travel from his place of residence to the place where the court was held, together with such sum for stationery as the presiding justice shall certify, which compensation shall be a charge upon the counties in which such courts shall be held respectively, and shall be allowed, and paid from the court fund, in like manner as other charges are allowed and paid from it. It shall be the duty of such stenographer to furnish to any party to such trials, upon request, a copy of the evidence and proceedings taken by him on such trials, or of such part thereof as may be required, on payment, on behalf of such party of ten cents for every one hundred words of the copy so furnished.

In the Surrogate Courts of the counties of New York and Kings, and of other counties in which a stenographer is or shall be duly authorized to take stenographic notes of proceedings in said courts in which oral proofs shall be given, in case of the death of any witness, deponent or affiant after examination, and before the stenographer's notes of such examination shall have been transcribed, such notes after being fairly transcribed and authenticated by the certificate of the surrogate shall be filed in his office, and be deemed to be the record of the proofs so taken without any signing thereof by such witness.

a. Notice of trial.—As to notice of trial in N. Y. common pleas and superior courts, see Rules in Appendix; as to notice of trial in supreme court, see Rule 29.

b. Notice of trial served by mail is sixteen days (§ 412, post), including the day of service (id.) In other cases the day of service is to be excluded, and the first day of the court included (Dayton v. McIntyre, 5 How. 117).

c. Where all the defendants appear, but only some of them put in an answer, notice of trial must be given to all the defendants, those who answer

and those who do not answer (Tracy v. N. Y. Steam Faucet Co. 1 E. D. Smith, 349; Brown v. Richardson, 4 Rob. 603).

a. Where there are two actions depending between the same parties, and prosecuted and defended by the same attorney, and one action only is noticed for trial, the notice should specify the action intended to be tried (Lesher v. Parmelee, 1 Wend. 22). And if, besides the issues to be tried, there are also damages to be assessed on a default entered in the same action, the notice of trial should also express the plaintiff's intention to have such damages assessed by the jury who try the issue (6 Cow. 599). [And where an answer is framed with a view to affirmative relief, if the defendant notice the cause, his notice should, it is thought, express his intention to take judgment for such relief]

b. If no notice of trial be given, or the notice be irregular or insufficient, and the plaintiff proceeds to trial and obtains a verdict, the court, on application of the defendant, will set the verdict aside (15 Johns. 399; 1 Caines' R. 154). But in determining the sufficiency of the notice, the court will inquire whether the attorney or party was misled by the defect (3 Caines' R. 86, 133; 4 Cow. 60; 11 Wend. 178); and for this purpose they will look, not only to the face of the notice, but to other circumstances (4 Cow. 60). Thus, where the name of one of the parties was written Jeunis, instead of Teunis, it was held sufficient (3 Caines R. 133). So, a notice of trial for Tuesday, the 18th, instead of Monday, the 18th (3 ib. 87), or for the third Monday instead of the third Tuesday, the party not being misled (4 Cow. 60), was held sufficient. And where the notice of trial was for the third Tuesday instead of the third Monday, on the Wednesday following the third Tuesday the plaintiff took an inquest. A motion to set aside that inquest as irregular was denied, it appearing that the opposite attorney had retained the notice, and had not been misled (N. Y. Central Ins. Co. v. Kelsey, 13 How. 535). If the opposite attor ney thought the notice irregular or insufficient, he should have returned it immediately after its receipt (b.)

c. A dismissal of the complaint founded upon service of the notice of trial or hearing, is irregular, if obtained without placing the cause on the calendar (Browning v. Paige, 7 How. 487). Where, in the first judicial district, a cause is noticed for trial for a particular term, it must be put on the calendar for that term, otherwise the party cannot regularly take a default at a subsequent term upon that notice (Culver v. Felt, 30 How. 442; 4 Rob. 681).

d. The provision that in the first district there need be but one notice of trial by either party, does not apply to notice of argument at general term (Walsh v. Gregory, 19 Abb. 363).

e. Where one of several defenses has by order been stricken from an answer as irrelevant, and the defendant appeals to the general term from such order, the plaintiff cannot, pending such appeal, bring on the action for trial (Trustees of Penn Yan v. Forbes, 8 How. 285).

f. If a cause is put on the calendar as of a wrong date of issue, the error may be corrected by motion at the circuit. The court will not fix the date as of which the cause shall be placed on the calendar (North v. Sargeant, 14 Abb. 224; see Rule 41).

g. Notes of issue.-As to notes of issue at general term supreme court, see Rule 41: notes of issue at general term superior court of New York, Superior Court Rule XXI.; notes of issue for special calendar, superior court, see Superior Court Rule XXIII. The note of issue should state the kind of issue (13 How. 345).

h. Stenographer.-Justices of the Supreme Court in the Second District may appoint a stenographer (Laws 1866, p. 923; Laws 1868, p. 1726; in Fifth District, Laws 1867, ch. 41).

$257. Order of disposing of issues on the calendar.

The issues on the calendar shall be disposed of in the following

order unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct:

1. The issues of fact to be tried by a jury;

2. Issues of fact to be tried by the court;

3. Issues of law.

a. Actions by the attorney-general have a preference on the calendar (Laws 1850, ch. 128; Laws 1848, p. 582; Laws 1858, ch. 37); and so have issues of law (§ 255 ante); and cases on certiorari (Rule 47); and actions against corporations, on notes or other evidences of debt (2 R. S. 459, § 11).

b. One trial should dispose of all the issues of fact. Thus, where defendant, with other defenses, sets up a counter-claim, and on the trial the complaint is dismissed, the trial should proceed and dispose of the counterclaim (Miller v. Freeborn, 4 Rob. 608).

CHAPTER III.

Trial by Jury.

SECTION 258. Notice of trial. Separate trials.

259. Court to be furnished with a copy of the pleadings.

260. General and special verdicts defined.

261. When jury may render either general or special verdict, and when the court may direct a special finding.

262. On special finding with a general verdict, the former to con

trol.

263. Jury to assess defendant's damages in certain cases.

264. Entry of the verdict. Motion for new trial.

265. Motion for new trial, or for judgment on special verdict, where to be heard.

§ 258. (Am'd 1851.) Notice of trial. Separate trial. Either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted.

c. Affidavit to prevent inquest.-An affidavit of merits is necessary to prevent an inquest (Dickerson v. Kimball, 1 Code R. 83; Jones v. Russell, 3 How. 324; Sheldon v. Martin, 1 Code Rep. 81; Anderson v. Hough, 1 Sand. 271; see Rule 27). Except only in the case of an answer setting up a counter-claim and nothing more, no reply being made (Potter v. Smith, 9 How. 262). The plaintiff is never required to file an affidavit of merits (Regan v. Priest, 3 Denio, 163). One affidavit of merits to prevent an inquest is sufficient, though the cause be several times noticed for trial and inquest (6 Cow. 45). And if filed, and served on a plaintiff's attorney, for a circuit in one county,