246, upon the failure of the defendar to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference or assessment by a jury may be ordered, as in that section provided.

CHAPTER V.

Trial by Referees.

270. All or any of the issues in the action, whether of fact or of law. or both, may be referred, upon the written consent of the parties.

271. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases:

1. Where the trial of an issue of fact shall require the examination of a long accourt 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.

272. 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 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.

273. In all cases of reference the parties as to whom issues are formed in the action (except when the defendant is an infant or an absentee) may agree in writing upon a person or persons, not exceeding three, and a reference shall be ordered to him or them, and to no other person or persons. And if such 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 judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice and not already referred, unless the parties otherwise stipulate. The referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted; and in default thereof, and before the report is delivered, either party may serve notice upon the opposite party that he elects to end the reference; and thereupon the action shall proceed as though no reference had been ordered, and the referees shall not, in such case, be entitled to any fees.

CHAPTER VI.

Manner of Entering Judgment.

Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be 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.

275. The relief granted to the plaintiff, if there be no 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.

276. Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action.

77. In an action to recover the possession of per.

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.

? 278. Judgment upon an issue of law, or of fact, or upon a confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of section 246, and by section 384, and except where it may be given at the general term as provided in section 265), shall, in the first instance, be entered upon the direction of a single judge, or report of referee, subject to review at the general term, on the demand of either party, as herein provided.

279. The clerk shall keep among the records of the court, a book for the entry of judgments, to be called the "judgment book."

280. The judgment shall be entered in the judgment book, and shall specify clearly the relief granted, or other determination of the action.

281. Unless the party or his attorney shall furnish a 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