Upon the motion of any party as provided in rule 4015 or on its own initiative, the court may submit any issue of fact required to be decided by the court to an advisory jury or, upon a showing of some exceptional condition requiring it or in matters of account, to a referee to report. An order under this rule shall specify the issues to be submitted. The procedures to be followed in the use of an advisory jury shall be the same as those for a jury selected under article forty-one. Where no issues remain to be tried, the court shall render decision directing judgment in the action.
R 4212.Advisory jury; referee to report.
Article 42. Trial by the Court · Last amended 1963 · Last verified July 21, 2026
In one sentenceRule 4212 lets the court, on a party's motion or its own initiative, send any issue it would otherwise decide itself to an advisory jury, or, in limited circumstances, to a referee to report, using the same procedures Article 41 sets for a regular jury.
Full Text of CPLR 4212
Plain-English Summary
Even when a case carries no jury right at all, a judge does not have to work through every factual issue alone. Rule 4212 lets the court submit any issue it is required to decide, on a party's motion or on its own initiative, to an advisory jury, whose verdict guides the court without binding it, since the judge remains the one who ultimately decides the facts. The court can also send an issue to a referee to report instead, but only on a showing of some exceptional condition that calls for it, or in matters involving an account, a narrower path than the one available for an advisory jury.
Whichever route the court chooses, the order sending an issue out has to specify exactly which issues are being submitted, and an advisory jury is run using the same procedures Article 41 sets out for a jury that decides a case as of right, the same rules on jurors, challenges, verdicts, and disagreement covered elsewhere in this article. Once every issue in the case has been resolved this way, whether decided by the court directly, guided by an advisory verdict, or informed by a referee's report, the court renders its decision and directs judgment.
Frequently Asked Questions
What is an advisory jury in a New York civil case?
It's a jury the court may use, on a party's motion or its own initiative, to help decide an issue that the court itself is required to decide, without the jury's verdict binding the judge.
Can I ask for an advisory jury even though my case has no jury-trial right?
Yes, rule 4212 lets the court submit any issue it must decide to an advisory jury, regardless of whether the case would otherwise carry a jury right.
When can the court refer an issue to a referee to report instead of using an advisory jury?
Only on a showing of some exceptional condition requiring it, or in matters involving an account.
What procedures govern an advisory jury?
The same ones Article 41 sets out for a regular civil jury, covering jurors, challenges, verdicts, and disagreement.
Is the court bound by what an advisory jury decides?
No, the advisory jury aids the court's decision, but the court remains the actual trier of the facts.
Advisory Committee Notes
This rule insofar as it permits advisory juries is based upon CPA § 430 and RCP 157. The rule has been reworded to clarify the function of the jury as an aid to the court, which remains the trier of the facts. McClave v Gibb, 157 NY 413, 420, 52 NE 186, 187 (1898). Thus, the phrase “advisory jury” is used, as in Federal rule 39(c).
Under this rule, the court is empowered to use an advisory jury in any action. The former use of such juries only in actions in which there was no right to jury trial is historical, the practice having originated in Chancery. Vermilyea v Palmer, 52 NY 471, 473–75 (1873). Since the verdict of an advisory jury may also be of assistance to the court in an action where the parties have waived their right to trial by jury, there seems no reason to retain the limitation. See 5 Moore, Federal Practice 722 (2d ed 1951); American Lumberman’s Mutual Casualty Co. v Timms & Howard, Inc. 108 F2d 497 (2d Cir 1939). This change eliminates one of the law-equity distinctions still embedded in the practice.
Conditioning the court’s discretion to use an advisory referee by requiring a showing of some exceptional condition requiring it or in matters of account is based upon Federal rules 39(c) and 53(b). Cf. General Elec. Co. v Golden Rule Appliance Co. 3 AD2d 437, 161 NYS2d 268 (1st Dep’t 1957). Under former practice, references to report on an issue raised by the pleadings might have been ordered only in certain actions. For example, CPA § 466 permitted a reference to report in an action involving a long account, and § 467 permitted a reference to take and report on an account. References to report on questions of fact incidentally arising, that is, upon a motion or after interlocutory or final judgment, were also permitted by § 467. Although CPA § 80 expressly authorized references on matters which were referable in the court of chancery, compulsory references to report of matters other than accounts which were directly, rather than collaterally, involved in an action have not been permitted. See Doyle v Metropolitan Elevated Ry. 136 NY 505, 510, 32 NE 1008, 1009 (1893).
A reference to an unofficial referee in a matrimonial action must be a reference to report and therefore comes under this rule because, pursuant to CPLR rule 4312, only an official referee may determine an issue in such an action. Cf. CPA § 1174. Procedures to be followed by a referee to report are set forth in § 4320.
Procedures to be followed in the use of a jury set forth in §§ 4104 to 4106, rule 4107, §§ 4108 to 4110, rules 4111 and 4112 and § 4113 are applicable to an advisory jury. Accordingly, the requirement of former CPA § 430 that specific questions be framed for submission to the jury, and that of former RCP 157 that such questions be submitted with the motion papers and settled, have been omitted. New Rule 4111(b) permits the court to submit the issues to the jury by any appropriate method.
Section 4403 provides for court action after verdict of an advisory jury or report of a referee under this subdivision.
The same jury may, and ordinarily will, try issues required to be tried by jury and those submitted for an advisory verdict. That practice is used in the Federal courts. Dellefield v Blockdel Realty Co. 1 FRD 689 (SD NY 1941).
The advisory committee considered but rejected a rule permitting a referee’s report to be introduced as evidence before a jury. Cf. Temp. Comm’n on the Courts Rep IV 47, Leg Doc 6(c) (1957) (Massachusetts auditor system); Fed R Civ P 53(e)(3).
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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