Kelsy v. Tremaine

It is provided by section 154 of the Code, as amended by chapter 392 of the laws of 1863, that “if the answer contain a statement of new matter constituting a counter-claim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.”

A defendant to avail himself of the benefit of that provision, must make out a case entitling him to a judgment for some amount. If he admits the…