put the cause on the calendar for trial on the issues of fact, without waiting for the determination of the issue of law (Palmer v. Smedley, 13 Abb. 185), and where in such a case the issues of fact have been tried first without objection, it will be deemed that the court directed them so to be tried (Fry v. Bennett, 9 Abb. 45; Warner v. Wigers, 2 Sand. 635). Where there is an issue of law and an issue of fact in a cause, no judgment for costs can be entered in favor of the party who prevails on the issue of law, until the issue of fact is disposed of (Masters v. Barnard, 6 How. 114).

A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

a. Trial. The taking a dismissal of the complaint under sec. 258, is a trial (Dodd v. Curry, 4 How. 123). Whether the hearing of a motion for judgment on a frivolous demurrer, under section 247, is a trial (Gould v. Carpenter, 7 How. 98; Roberts v. Morrison, ib. 396; Lawrence v. Davis, ib. 354; Hull v. Smith, 8 ib. 149; Rochester City Bank v. Rapelje, 12 How. 26; Pratt v. Allen, 19 How. 450; Witherhead v. Allen, 28 Barb. 661; Butchers B'k v. Jacobson, 22 How. 470; Bell v. Noah, 24 How. 478), and whether a motion to dismiss a complaint for not proceeding with the action, is a trial (Tilspaugh v, Dick, 8 How. 33; see Place v. Butternuts Wool Co. 28 How. 184); also whether an application for judgment under section 246 is a trial,- -are questions important as regulating the amount of costs on such motions, and are considered with that view in the note to section 307, subd. 4.

b. Venue.—An issue of law may be brought on to argument at a special term, held in a different county in the district, from that indicated as the place of trial in the complaint (Ward v. Davis, 6 How. 274).

253. (Am'd 1849, 1852.) Issues, how tried. Trial by jury. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section two hundred and sixty-six, or a reference be ordered as provided in sections two hundred and seventy, and two hundred and seventy-one.

c. Trover.—An action for damages for conversion of personal property must be tried by a jury; unless a jury trial be waived (Lewis v. Varnum, 12 Abb. 305). And so of an action to recover damages or a statute penalty for creating or continuing a nuisance (Fire Department v. Harrison, 2 Hilton, 455 ; 9 Abb. 1; 17 How. 273; 18 How. 181).

d. Jury trial.-Where the main object of an action is the recovery of damages on a cause of action which would formerly have heen a common-law action, and equitable relief is sought merely in aid of such recovery, if necessary, the cause should be tried at the circuit, and not at a special term (N. Y. Ice Co. v. North-western Ins. Co. 10 Abb. 35; 31 Barb. 72; 20 How. 424; see Dunnell v. Keteltas, 16 Abb. 205; Greason v. Keteltas, 17 N. Y. 496). Where there is an agreement to insure and deliver a policy, and a loss occurs before

the delivery of the policy, an action on the agreement and loss is one to be tried by a jury (Rockwell v. Hartford Fire Ins. Co. 4 Abb. 179). Where the plaintiff united in one complaint a claim for damages for the improper sale of a pledge, with a claim to redeem said pledge, and the facts disclosed on the trial did not entitle plaintiff to redeem, the court ordered the issue on the claim for damages to be tried by a jury (Genet v. Howland, 30 How. 360).

a. Divorce.-In an action for a divorce on the ground of adultery in which issues are raised by the pleadings, it is not necessary to frame issues, but the issues made by the pleadings may be tried (Parker v. Parker, 3 Abb. 478).

b. Nul tiel record.—An issue of nul tiel record must be tried by a jury or be referred (Fasnacht v. Stehn, 53 Barb. 650; 5 Abb. N. S. 338).

c. Waiver.-Excepting to the findings of fact and conclusions of law is not a waiver of trial by jury (id.) see Rule 33 and § 266 post. Where the issue is such that a party is entitled on proper demand to have it tried by a jury, and he omit to claim such right he cannot afterward on appeal object to the mode of trial (Penn. Coal Co. v Del. Canal Co. 1 Keyes, 72); an objection taken on the trial of an action once begun that it should have been tried by a jury, should be overruled (McKeon v. See, 4 Rob. 450. See Bradley v. Aldrich, 40 N. Y. 504).

254. (Am'd 1849.) Other issues to be tried by the court. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.

d. Equitable Relief.-All actions seeking equitable relief are to be tried by the court (McCarty v. Edwards, 24 How. 236; McMahon v. Allen, 10 How. 384; Church v. Freeman, 16 How. 297); as to charge the estate of a married woman (Cheesebrough v. House, 5 Duer, 125); or to set aside an assignment for fraud (Wilson v. Forsyth, 16 How. 448; Draper v. Day, 11 How. 439); or they may be referred (McCarty v. Edwards, and Allen v. Me Mahon, supra). The order must be made before or at the trial-not after (O'Brien v. Bowes, 4 Bosw. 658). See Rule 33.

§ 255. (Am'd 1849, 1851, 1852.) Issues, where to be tried. All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court, must be tried at a circuit court when the trial is by jury; otherwise, at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise direct, have preference on the calendar.

e. The parties may stipulate to have the trial out of the court-house, and out of the county (Laws 1847, ch. 470).

f. An issue of law may be brought on for trial at any special term in the district within which is situated the county named in the complaint as the place of trial (Ward v. Davis, 6 How. 274)

See Supreme Court Rule 28; and as to causes on calendar, First District, see Laws 1849, p. 708.

§ 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 hereinbefore 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 herein before 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