Saltus v. Kip
The Superior Court of New York City
Motion to set aside an order for assessment of plaintiff’s damages and for leave to answer. This was an action of assault and battery. Within twenty days after service of the summons and complaint, the defendant appeared by attorney, but made default in answering. When the time to answer had expired, the plaintiffs applied exparte and obtained an order that his damages be assessed by a jury.
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Motion to set aside an order for assessment of plaintiff’s damages and for leave to answer. This was an action of assault and battery. Within twenty days after service of the summons and complaint, the defendant appeared by attorney, but made default in answering. When the time to answer had expired, the plaintiffs applied exparte and obtained an order that his damages be assessed by a jury. The defendant now moved to set aside that order for irregularity, and for leave to put in an answer, which he produced. The answer did not deny the assault and battery, but set up circumstances mitigating…
1Opinion of the CourtBoswoRTH, J.
The order to assess damages could only be granted on an application for the relief demanded by the complaint. No notice of the application having been given, it is irregular and must be set aside {Code, § 246, subd. 2).
The answer contains no defence; — on a demurrer to it for insufficiency, judgment would be given for the plaintiff. (Laws of 1855, ch. 44; Lane v. Gilbert, 9 How. Pr. R., 150). In such a case the damages would be assessed in the same manner as if no answer had been put in. (Code, § 269).
*383The same proceedings may be bad under the Code, on assessing damages on a default to answer,…
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