TITLE VIII.

Of the trial and Judgment in Civil Actions.

CHAPTER I. JUDGMENT UPON FAILURE TO ANSWER.

II. ISSUES AND THE MODE OF TRIAL.

III. TRIAL BY JURY.

IV. TRIAL BY THE COURT.

V. TRIAL BY REFEREES.

VI. THE MANNER OF ENTERING JUDGMENT.

CHAPTER I.

Judgment upon failure to answer.

SECTION 245. Judgment defined.

246. Judgment on failure of defendant to answer, or for excess over counter-claim.

247. Judgment on frivolous demurrer, answer, or reply.

$245. Judgment, what.

A judgment is the final determination of the rights of the parties in the action.

a. Judgment.-A discontinuance is a "final determination" of the rights of the parties in the action (Crockett v. Smith, 14 Abb. 62), and so an order after trial that a fund be paid into court to await a further order (Gray v. Cook, 24 How. 432). An order of the county court dismissing an appeal from a justice's judgment is a judgment (Pearson v. Lovejoy, 53 Barb. 407); a judgment for sale in an action of foreclosure is a final judgment (Morris v. Morange, 38 N. Y. 172).

b. A determination on a motion under § 247 is a judgment (Roberts v. Morrison, 7 How. 396; see however note to subd. 4 of § 307, post). As to what is a judgment, and the distinction between a judgment and an order, see note to § 400, post.

§ 246. (Am'd 1849, 1851, 1858.) Judgment on failure of de fendant to answer; or for excess over counter-claim.

Judgment may be had if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons according to the provisions of section 130, and

that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action, he shall be entitled to five days' notice of the time and place of such assessment.

Where the defendant by his answer in any such action shall not deny the plaintiff's claim, but shall set up a counter-claim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim over the said counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counter-claim, which statement shall be annexed to and be a part of the judgment-roll.

2. In other actions the plaintiff may, upon the like proof apply to the court after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or, if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint.

3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be ex

amined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment, the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security, to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under, or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense.

a. As to judgment for want of an answer after service by publication, see Rule 25; in action for foreclosure, see Rule 71; for a divorce, Rule 86; for partition, see section 448, post; in ejectment, section 455, post.

7. Judgment.—The plaintiff cannot take judgment if a demurrer has been served (Broadhead v. Broadhead, 4 How. 308). But if the defendant has demurred and the demurrer has been overruled, or there is a direction for judgment under section 247; there is in that case a failure to answer; and the like proceedings may be had as where neither answer nor demurrer is put in (King v. Stafford, 5 How. 30; Aymar v. Chase, 1 Code Rep. N. S. 141; Saltus v. Kip, 2 Abb. 332; 12 How. 342; 5 Duer, 646; Hoffnung v. Grove, 18 Abb. 14; 142).

c. Proof of no answer.-Proof of no answer is usually but not necessarily by affidavit (Phillips v. Prescott, 9 How. 430). Where the proof is by affidavit, the affidavit should state that neither answer nor demurrer has been received. The affidavit should be sworn, at or about the time of the application for judgment (Brian v. Casey, 2 Ább. 416). Where two defendants were sued on a joint liability, and one answered and the other made default, on the trial the plaintiff took judgment against both defendants-held, that he was regular, and that in such a case no affidavit of no answer having been received was necessary (Catlin v Billings, 13 How. 511; S. C. 4 Abb. 248; and see Sluyter v. Smith, 2 Bosw. 673). Thus, in an action against the maker and indorsers of a promissory note, the indorsers (Fowler & Billings) being partners, and the indorsement being in their firm's name, all the defendants were served with the summons. Billings did not defend; the other defendants answered and defended separately. The cause was brought to trial on the issues raised by the defendants who answered. On the trial there was a verdict for the plaintiff, and the jury then and there assessed the damages against Billings. Judgment was entered against all the defendants, and without any affidavit that the defendant Billings had not answered. Subsequently Billings moved to set aside the judgment for irregularity, on the ground that the judgment roll contained no affidavit of no answer having been received from him. Motion was denied, it being held that in such a case no such affidavit was necessary. It was further held, that if such an affidavit was in fact necessary, the plaintiff might be permitted to supply the defect; (and see Ford v. David, 1 Bosw. 570; Jones v. U. S. Slate Co. 16 How. 129).

d. If a judgment is entered without an affidavit of no answer having been received, it is an irregularity in a matter of practice only, and furnishes no ground for an appeal from the judgment (Catlin v. Billings, 16 N. Y. 622). The proof of service should be inserted in the judgment-roll (Macomber v. Mayor of N. Y. 17 Abb. 36).

e. Judgment for want of an answer based on a service of the summons on an elector on an election day, is irregular (Bierce v. Smith, 2 Abb. 411). A

mere irregularity in the service of the summons, as that it was served by a party to the action does not render the judgment irregular (Hunter v. Lester, 10 Abb, 260; and see Collins v. Ryan, 32 Barb. 647; and in note to § 133). The plaintiff cannot, where an answer had been served in due time, disregard it and enter judgment as for want of an answer (Ross v. Longmuir, 15 Abb. 326). Where a default is regular it is not to be set aside merely because subsequent proceedings are irregular ( Griswold v. Stoughton, 1 Cai. 6). Where by reason of the summons not having been served the court never acquired jurisdiction of the action, it will set aside the judgment at any time after its entry. The application to set it aside need not be made within a year after the entry (Hallett v. Righters, 13 How. 43).

a. Judgment against one of several defendants.-"The right to take judgment against one defendant on default, before the other has answered or made default, only applies to cases where a several judgment is proper, and cannot authorize a judgment against both defendants, even so far as to affect only partnership property." And in an action on contract against defendants jointly liable, no judgment can regularly be entered until the time to answer, of all the defendants served, has expired (Jacques v. Greenwood, 1 Abb. 230); if one of two defendants jointly liable answer, and one does not, the plaintiff cannot take judgment against the defendant who does not answer until the issue raised by the defendant who does answer is disposed of (Catlin v. Latson, 4 Abb. 248; S. C. 13 How. 511; Sluyter v. Smith, 2 Bosw. 673).

b. Order for judgment.—A judgment, except in the cases specified, cannot be entered without the order of the court (Beach v. Shaw, 4 Barb. 288).

c. Death of defendant.—Where a defendant dies after being served with process, and before his time to answer expires, the plaintiff cannot enter judgment in the action (Borsdorff v. Dayton, 17 Abb. 36 note).

2. Where application for judgment is to be made.—The application for judgment, in actions within the second subdivision of this section, must be made at special term (Ryan v. McCannell, 1 Sand. 709; Aymar V. Chase, 12 Barb. 301). And see supreme court rule, 24. In the superior court, an application for judgment may be made at chambers (Porter v. Lent, 2 Abb. 116; 4 Duer, 671).

e. When notice of the application must be given.-In all actions on contract to recover money only (except actions on an instrument for the payment of money only), where the complaint is not verified, the clerk is to ascertain by the examination of the plaintiff, under oath, or by other proof, the amount which the plaintiff is entitled to recover (Cook v. Pomeroy, 10 How. 103). And if the defendant has given notice of appearance, five days' notice of such ascertainment is indispensable (b.) Where, in an action on a promissory note, the complaint purported to be verified, but in fact was not verified, what purported to be a verification being a nullity, the defendant gave notice of appearance, but did not answer, the plaintiff without any notice to the defendant, entered up his judgment, it was held that the judgment was irregular, and that notice should have been given to the defendant (Van Horn v. Montgomery, 5 How. 238). Where, after the time for answering had expired, the defendant served notice of appearance, and the plaintiff on the same day, but after the receipt of such notice entered judgment, it was held regular, and that he was not, under the circumstances, bound to delay the entry of judgment for the purpose of giving notice of assessment of damages (White v. Featherstonhaugh, 7 How. 357; but see Abbott v. Smith, 8 How. 463). In an action on contract to recover money only, and the complaint verified, the defendant gave notice of appearance, but did not answer; and at the expiration of the time to answer, the plaintiff took judgment without any notice to the defendant. It was held, that he was regular, and that the defendant was not entitled to any notice; that in such a case there was no assessment (Dix v. Palmer, 5 How. 233; Southworth v. Curtis, 6 ib. 271).

f. In an action for an assault, the defendant gave notice of appearance,

but did not answer. Thereupon the plaintiff, without notice to the defendant, applied for and obtained an order to have his damages assessed by a jury,-held that he was irregular in applying without notice, and the order was on motion set aside (Saltus v. Kip, 2 Abb. 382; 12 How. 342). In an action against a common carrier for loss of goods, where the defendant appeared, but did not answer in due time, and the plaintiff took judgment without any notice to the defendant, the court set aside such judgment as irregular (Clor v. Mallory, 1 Code Rep. 126; Flynn v. Hudson Ř. R. Co. 6 How. 308).

a. Where a defendant demurs to the complaint, it is an appearance, and although such a demurrer be set aside or held to be frivolous, the defendant is nevertheless entitled to notice of the assessment of damages or of the amount due the plaintiff, in like manner as if he had given a simple notice of appearance (King v. Stafford, 5 How. 30; Aymer v. Chase, 1 Code Rep. N. S. 141; Saltus v Kipp, 2 Abb. 382; 12 How. 342; 5 Duer, 646).

b. In an action on an undertaking of bail, the summons was in the form prescribed by subd. 2, of sect. 129. Defendant in effect appeared. The plaintiff assessed his damages without notice,-held he was irregular (Kelsey v. Covert, 6 Abb. 336, note; 15 How. 92).

c. Proof of plaintiff's demand, when necessary and how taken.—In actions arising on contract for the recovery of money only (and as to what actions are within that description, see note to section 129, ante); (1) if the complaint be verified, the clerk enters judgment without more; (2) if the complaint be not verified, in an action on an instrument for payment of money only, the clerk, on its production to him, assesses the amount due thereon; (3) in other cases of actions arising on contract for the payment of money only, the clerk ascertains the amount the plaintiff is entitled to recover from the examination of the plaintiff under oath on other proof (Hurd v. Leav enworth, 1 Code Rep. N. S. 279). In such a case it is not essential to the regularity of the judgment, that the judgment-roll should show on its face what was the proof before the clerk, or if the action was on a note and the complaint was not verified; that the note was produced to him, and that he assessed the amount due to the plaintiff thereon, as the clerk in such cases must enter the judgment for the amount he has assessed, the judgment-roll is evidence that he did his duty in respect to assessing the amount due (Am. Exchange Bank v. Smith, 6 Abb. 1), and (4) in other actions, i. e. actions other than "actions arising on contract for the recovery of money only," the court may either take the proof, order a reference or an assessment by a jury. If in this class of cases a reference is ordered, a report must be made and filed as part of the judgment-roll (American Exchange B'k. v. Smith, 6 Abb. 1).

d. Where a reference is ordered, the reference must be had in the county named in the complaint as the place of trial (Brush v. Mullany, 12 Abb. 344). e. In an action for damages for non-performance of a contract to sell real estate, no special damage being alleged, there was no answer, and plaintiff obtained an inquisition to have his damages assessed by a sheriff's jury,—held irregular, and the inquisition was set aside. The damages could be assessed by the clerk (Bownes v. Logan, Superior Court, Feb'y, 1857; and see Croden v. Drew, 3 Duer, 652).

f In an action against a common carrier to recover damages for the loss of goods delivered him to carry (the summons followed the first subdivision of section 129), the defendant not having appeared or put in an answer, the plaintiff took an order for a reference to estimate his damages. On motion to set aside such order, it was held irregular, and that the plaintiff ought to have had his damages assessed by a jury (Hewett v. Howell, 8 How. 348).

g. Where the summons was for relief, and the complaint prayed for an accounting and for judgment for the balance ascertained to be due, and stated the plaintiff's belief that such balance was at least $550; the defendant not having answered, on plaintiff's application for judgment for the sum of $550, it was held that he was not entitled to judgment for that sum, but only to a