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 (ib.) 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; 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, it has been held sufficient, though the venue be afterwards changed (b.) But an affidavit of merits made and used for one purpose in a cause, cannot be used for another: e. g., an affidavit to change the venue will not be received as the foundation of a motion to set aside a default for want of a plea (Cutler v. Biggs, 2 Hill, 409; and see Belden v. Devoe, 12 Wend. 223; Robinson v. Sinclair, 1 How. 106; Popham v. Baker, 1 How. 166; Colgate v. Marsh, 2 How. 136; Mygatt v. Garrison, 18 Abb. 292, note). a. Where the cause is called in its order the defendant may appear and defend, although no affidavit of merits be filed (Starkweather v. Carswell, 1 Wend. 77). b. Affidavit by whom to be made.-The affidavit must in general be made by the defendant himself; in his absence, however, it may be made by his attorney or counsel (11 Johns. 82); or his agent or attorney in fact specially authorized to defend the action (Johnson v. Lynch, 15 How. 199). Where made by the attorney, counsel, or agent, it must state a sufficient excuse for not being made by the defendant personally (2 Cow. 581; 1 How. 62). Absence beyond seas or out of the State will usually be deemed sufficient (Johnson v. Lynch, supra). It is no valid objection to such an affidavit, that the knowledge of the defense is sworn to be derived from the statements of the defendant; for this is all the information that, as a general rule, the attorney can ever have (id.) It would be proper that the affidavit should state, not only that the deponent has been fully informed of the facts of the case, but his inquiries into the truth of those facts, and his better knowledge of them by means of such inquiries, &c. (id. 202). In Phillips v. Blagge, (3 Johns. 141), the affidavit was made by the attorney, and stated that the defendant was absent beyond sea, and had represented to deponent that he, defendant, had a good and substantial defense on the merits, and, from his representations and the papers produced, deponent verily believed there was a defense. This was held sufficient. In Roosevelt v. Dale, (2 Cow. 581), the attorney made the affidavit, swearing to a good defense on the merits, that the defendant had left the city of New York for Columbia county, and did not return in time to make the affidavit. This was held insufficient. The plaintiff will be permitted to impeach the excuse for the affidavit being made by any one other than the defendant, by showing that it is false or frivolous, but cannot question the existence of a defense sworn to in due form (Johnson v. Lynch, 15 How. 202). c. Where a maker and indorser of a note are sued in one action, an affidavit of merits by the maker will not prevent an inquest against the indorser, unless it appear that the defense of both is identical (19 Wend. 125). And where several suits are brought against the maker and indorsers of the same note, an affidavit of merits to set aside an inquest in all the causes may be made by the maker, if he be acquainted with the facts, and the defense be the same in all the causes (6 Cowen, 395). d. Form of affidavit.—The substance of the ordinary affidavit is, that the defendant has fully and fairly stated the case to his counsel, giving the name and residence of such counsel (Rule 21), and that he has a good and substantial defense on the merits thereof, as he is advised by his said counsel, after such statement made as aforesaid, and verily believes to be true (5 Johns. 335; 16 ib. 3). The language of the affidavit should strictly conform to the rule of court; otherwise, it may be treated as a nullity (2 Hill, 359). An affidavit that the party has fully and fairly stated "this case," or "his case," to counsel, fairly implies that he has stated the whole case, and is sufficient (Jordan v. Garrison, 6 How. 6). But an affidavit that he has stated his “defense,” or the facts of his defense," to counsel, only implies that he has stated one side of the case, and is, therefore, insufficient (22 Wend. 636; 2 Hill, 359; Richards v. Swetzer, 1 Code R. 117; Tompkins v. Acer, 10 How. 310; Ellis v. Jones, 6 id. 296). So, an affidavit that the defendant has fully and fairly stated "the facts of his case," &c., is insufficient (1 Hill, 644). And an affidavit which alleged that the defendant had stated "his case in this cause," was held insufficient (Ellis v. Jones, 6 How. 296). Nor will it do to qualify the requisition of the rule, by adding, "so far as the facts have come to defendant's knowledge," unless a sufficient excuse be shown (19 Wend. 617). An affidavit that the defendant has a "defense, &c., to the plaintiff's declaration filed in the suit," &c. (1 How. 68), or "to the bond," &c., or "a defense in the action,” without stating "on the merits" (4 Hill, 534; McMurray v. Gifford, 5 How. 14), has been held bad. The courts are always strict as to the form of an affidavit of merits (Finlayson's Common Law Procedure Acts, 91). a. Affidavit to be filed and copy served.-The affidavit is to be filed, and a copy, endorsed with a notice of the original being on file, served on the plaintiff's attorney, before or on the first day of the circuit (15 Johns. 536); or before an inquest is actually taken (6 Hill, 368; 6 Abb. 512). b. Service of the affidavit.—Under the former practice it was said that an affidavit to prevent an inquest sometimes might, and at other times should, be served in a different manner from what is required in relation to other papers. At the circuit, if the plaintiff's attorney was not present, it might be delivered to the counsel having the cause in charge. If not delivered at the circuit, it should be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with the counsel before the inquest is taken. Accordingly, when the affidavit was served on the second day of the circuit, by leaving it at the office of the plaintiff's attorney, no one being in at the time, and he took the inquest a few moments afterward, but without knowing that the affidavit had been served, his proceedings were held regular (Brainard v. Hanford, 6 Hill, 368). Perhaps it would be otherwise if there is any one in the office at the time of the service (Smith v. Aylesworth, 24 How. 33). e. Inquest, when it may be taken.-An inquest may be taken on any day after the first day of the circuit, immediately after the opening of the court (Rule 29) but not after the trial of a litigated cause has commenced (Nichols v. Chapman, 9 Wend. 451), nor after the jury had been discharged (Dickenson v. Kimball, 1 Code Rep. 83; Haines v. Davis, 6 How. 118); an inquest can be regularly taken on the first day of a trial term, if the action is regularly called on that day upon the calendar (Smith v. Brown, 1 Duer, 665). d. The plaintiff cannot take an inquest at a circuit for which he has not served a notice of trial (Culver v. Felt, 4 Rob. 681); although he has been called there by a notice of the defendant (Potter v. Davison, 8 Abb. 43). e. Where at the opening of the court, the plaintiff asks to take an inquest, and he by direction of the court waits till a cause then on trial is concluded, and then takes an inquest,—it is irregular, but will be set aside without costs. In such a case the proper course is to defer taking an inquest until it can be done at the opening of the court (Anon. MS. Superior Ct.; see 6 Abb. 512). J. Where a motion to change the place of trial was made by the defendant, and after the motion had been heard, and while the question was under advisement, the cause was reached on the calendar, and the plaintiff took an inquest. There was no stay of proceedings. The motion was subsequently granted. Held, that the decision related back to the time of making the motion and made the inquest irregular; but the inquest would have been regular if the decision on the motion to change the place of trial had been denied (Wilson v. Henderson, 15 How. 90). g. Proceedings on inquest.-Upon an inquest the defendant has a right to appear, and cross-examine the plaintiff's witnesses; but he cannot prove a defense by them, nor examine witnesses on his own behalf. He may, however, object to the plaintiff's evidence, and except to the judge's ruling, as in ordinary cases. So, the plaintiff may be nonsuited if he fail to make out his case (Willis v. Green, 1 Wend. 78; Hartness v. Boyd, 5 ib. 563). (See in note to § 246). h. Where there is a counter-claim, not denied, and the plaintiff takes an inquest, the amount of the counter-claim must be allowed the defendant (Potter v. Smith, 9 How. 262). i. An action at issue upon issues of fact only, and noticed for trial, and placed upon the calender, if the defendant fails to appear when it is reached in its order, must be tried by the court and jury, or by the court alone if the plaintiff elects to treat the failure of the defendant to appear as a waiver by him of a trial by jury. The plaintiff cannot in such a case take an order to have his damages assessed by a Sheriff's jury (Giberton v. Fleischel, 5 Duer, 652; Dolan v. Petty, 4 Sand. 673). a. Where the defendant has answered, denying all or any of the material allegations of the complaint, although he does not appear on the trial, it is incumbent on the plaintiff to prove the allegations so denied before he is entitled to judgment (Patton v. Hazewell, 34 Barb. 421). b. Waiving or setting aside inquest.—A party who has taken an inquest regularly is not bound to waive it, he may put the adverse party to his motion (Smith v. Howard, 12 Wend. 128). Setting aside inquest is in the discretion of the court (Leighton v. Wood, 17 Abb. 177). But no inquest should be set aside unless the court is fully satisfied that defendant has no evidence which would materially reduce the amount of the recovery (Leighton v. Wood, 17 Abb. 177). The court refused to open an inquest on the excuses that the counsel was engaged before a referee and that a material witness was absent (Ward v. Ruckman, 23 How. 330). An inquest regularly taken will not be set aside where it appears that the answer was insufficient or frivolous (Hunt v. Mails, 1 Code Rep. 118). On setting aside a regular inquest, defendant was put under terms of withdrawing a plea of the statute of limitations (Fox v. Baker, 2 Wend. 244); and the court refused to set aside an inquest regularly taken, where the only defense was usury (Morris v. Slatery, 6 Abb. 74; Farish v. Corlies, 1 Daly, 274). So the court refused to set aside an inquest because the action was improperly brought in the name of husband and wife, or for a variance between the complaint and judgment, and the proof, nor because the judge allowed an amendment by which the amount of plaintiff's recovery was increased (Burger v. Baker, 4 Abb. 11). The court refused to open an inquest after a delay of two years (Hendricks v. Carpenter, 1 Abb. N. S. 213; 2 Rob. 625). c. When the cause is reached and called, and an inquest taken in the absence of the defendant's counsel, semble his actual engagement at the time at another court, is not a ground for opening the default (Morris v. Slatery, 6 Abb. 74). After a default regularly taken, the same will not be opened, upon a mere general affidavit of merits. The party must disclose the nature of his defense, so that the court may judge whether it is meritorious (McGaffigan v. Jenkins, 1 Barb. 31; Ferrusac v. Thorn, ib. 42). If a married woman is sued as a feme sole and she allows judgment to pass by default, and it appears she obtained the credit by representing herself as a widow-the court will not on motion relieve her from the judgment, but leave to her an appeal (Genet v. Dusenbury, 2 Duer, 679). d. Appeal.-An order opening, or refusing to open, an inquest is not appealable to the general term (Farish v. Corlies, 1 Daly, 274; Millard v. Van Ranst, 17 Abb. 319 note; and 7 Bosw. 678). In Leighton v. Wood, 17 Abb, 177, the court entertained an appeal from an order setting aside an inquest. On affirming the order, the court said, orders of this description are discretionary, and not subject to review on the trial. e. The action must be ready for trial as to all the defendants. -An action cannot regularly be brought to trial until it is in such a situation that a final judgment can be rendered between all the parties. It cannot be tried in sections without leave of the court. Thus, if all the defendants have not been served with the summons, nor have appeared, a defendant who has been served and answered cannot bring the action to trial (Morris v. Crawford, 16 Abb. 124). One of two defendants appearing by a separate attorney, and having a separate and different defense, may bring the cause as to himself to trial, and in case no one attends for the plaintiff, may take a judgment of dismissal by default (Gurnee v. Hoxie, 29 Barb. 547). Nor where |