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reference to take the account mentioned in the complaint (Porter v. Lent, 2 Abb. 115; 4 Duer, 671).

a. In an action for the recovery of specific personal property, with damages for its detention, if the defendant does not answer, the regular course is to direct an assessment by the sheriff's jury. But if the plaintiff will waive all damages for the detention, he may have judgment for the recovery of the property without any reference or assessment (Horn v. Doody, 2 Abb. 92; 4 Duer, 670). The court may take the proofs without a jury (2 Abb. 138 n.) In an action for infringement of a trade mark, the damages on a judgment for want of an answer cannot be assessed by a sheriff's jury, but by the court or a referee (Guilhon v. Lindo, 9 Bosw. 605).

b. In actions of tort, as for assault, &c., the plaintiff, on proof of service of summons, and that no answer has been received, and if the defendant has appeared on notice to him, should apply for an order to assess damages by a sheriff's jury, not by a referee (Richards v. Swetzer, 3 How. 413; Dutch Reformed Church of Canajoharie v. Wood, 8 Barb. 421; Stanley v. Anderson, id. 52; Saltus v. Kipp, 2 Abb. 382; 5 Duer, 646; 12 How. 342; Boyce v. Comstock, 1 Code Rep. N. S. 290). In which case a writ of inquiry issues to the sheriff to assess the damages; but in cases of difficulty and importance the court, on a proper affidavit, showing grounds therefor, may order the writ of inquiry to be executed before a judge, in which event the judge acts as assistant to the sheriff (2 Johns. 71). In Dillayev. Hart (8 Abb. 394; and see Hays v. Berryman, 6 Bosw. 679), an action for an assault, the plaintiff asked to have the assessment before a judge, on the ground that he could not challenge the jurors if the inquisition was before the sheriff. The motion was granted. See 15 Johns. 177. In Casneau v. Bryant, (6 Duer, 668; 4 Abb. 402), an action for libel, the superior court said that on its being shown that difficult questions of law might arise, it might order the assessment to take place before a judge. Order refused (George v. Fisk, 3 Rob. 710).

c. A commission may issue to take the testimony of a witness on an assessment of damages. Laws 1862, ch. 375, p. 628.

d. Like notice of the assessment of damages by a jury, on a writ of inquiry, is necessary, as is required on an assessment by the clerk where the defendant has appeared in the action (Kelsey v. Covert, 15 How. 92; 6 Abb. 336, note). Notice of executing a writ of inquiry at a certain day, "provided an interlocutory judgment shall have then been obtained in the cause," is good (Oothout V. Rooth, 12 Johns. 151; and see Anon. 4 Sand. 693).

e. The same proceedings may be had under the code on assessing damages on a default to answer, as were allowed under the old practice on executing a writ of inquiry. A defendant may call witnesses and prove any matter which properly goes to mitigate damages. He may, of course, prove all the facts relating to, and any immediate provocation which, in the judgment of law, tends to mitigate damages (Saltus v. Kipp, 2 Abb. 383; 12 How. 342; Warner v. Kenny, 3 id 323; Lane v. Gilbert, 9 How. 150; Gilbert v Rounds, 14 id. 47). But he cannot prove a partial defense (Ford v. David, 1 Bosw. 570). f. The verdict on a writ of inquiry will not be set aside for irregularities in summoning the jury, and as to which no objection was taken on the assessment, nor because the complaint was read to the jury (Jennings v. Asten, 5 Duer, 695; 3 Abb. 373). On moving to set aside such a verdict for excessive damages, the evidence must be disclosed on the moving papers (id.)

Note to subdivision 3. (See Rule 25).

g. After publication.-Where the service of the summons is by publication, the judgment cannot be regularly entered except by the special order of the court, and upon due proof of the service of the summons, in conformity with the order for publication. And the fact of such conformity should appear on the face of the record, or the judgment will be void (Hallett v. Righters, 13 How. 43; see Chapman v. Lemon, 11 How. 239; Downer v. Mellen, 50 Barb. 232).

a. Restitution.-The restitution to which a party is entitled upon the reversal of an erroneous judgment, is not restitution to everything he has lost thereby; he recovers what is still in possession of his adversary, but not everything else. For instance, land sold under execution issued on the judgment, and bought by a third party, does not revert to the original owner on the reversal of the judgment (Lovett v. German Ref. Ch. 12 Barb, 83). Where money has been collected on a judgment which is subsequently reversed, such money may be recovered by action: the remedy by order for restitution is merely cumulative (Lott v. Swezey, 29 Barb. 87; see §§ 330, 369, post).

6. Judgment for amount admitted.—Where the plaintiff's claim is admitted by the answer, and defendant sets up a counter-claim of less than the sum claimed by the plaintiff, the plaintiff may enter judgment for the balance without any assessment by the clerk (Robbins v. Watson, 22 How. 293).

c. Opening judgment for default of answer.-If a defendant omit to answer within the time prescribed, the court has power to let him in to make a defense (Lynde v. Verity, 1 Code Rep. 97; Salutat v. Downes, id. 120; Clark v. Lyon, 2 Hilton, 91; Allen v. Ackley, 4 How. 5); before judg ment is entered (McGuin v. Cace, 9 Abb. 160); or if judgment has been entered it will set aside the judgment and let him in to defend, and without reference to his remedy against his attorney. As where an attorney appears without authority or suffers judgment by fraud or neglect (Elsworth v. Campbell, 31 Barb. 134; Sharp v. Mayor of N. Y. 31 Barb. 578; 20 How. 439; see, however, Bogardus v. Livingston, 2 Hilton, 236). The indulgence is usually on terms, sometimes paying costs and undertaking not to set up a defense of the statute of limitation (Allen v. Ackley, supra; Hawes v. Hoyt, 11 How. 454; Clinton v. Eddy, 54 Barb. 54; Farish v. Corlies, 1 Daly, 274); or usury (Toole v. Cook, 16 How. 142; and see Morris v. Slattery, 6 Abb. 74); or infancy (Graham v. Pinckney. 7 Rob. 147); but on opening a default the court refused to impose the terms that the defendant should not set up the defense of usury (Grant v. McCaughin, 4 How. 216); or the defense of a former recovery (Audubon v. Excelsior Fire Ins. Co. 10 Abb. 64); or the defense, that the note in suit was given for money won at play (B'k of Kinderhook v. Gifford, 40 Barb. 659). These terms are discretionary, and cannot be reviewed (Lord v. Vandenburgh, 15 How. 363; Jacobs v. Marshall, 6 Duer, 689).

d. The motion to open a judgment by default and let defendants in to defend, may, in New York city, be made to a justice out of court (Lowber v. The Mayor of N. Y. 5 Abb. 325).

e. An affidavit of merits to be let in to defend need not be special when there are no suspicious circumstances. If there are such circumstances the affidavit must be special (Dix v. Palmer, 5 How. 234; Van Horne v. Montgomery, 5 How. 238).

f. One of several joint debtors not served with the summons was permitted after judgment against all, on default of an answer, by the defendant served, to come in on terms and defend the action (Ford v. Whitridge, 9 Abb. 416). And where a judgment against several joint debtors was obtained on a service against one only, by a supposed connivance with the defendant served, the judgment was opened on motion of one of the defendants not served (Cleveland v. Porter, 10 Abb. 407; and see ante, p. 140 d.)

g. A judgment should not be set aside, and leave given to the defendant to come in and defend, unless he shows that he has a good defense on the merits, and that the omission to answer in time was the result of accident or mistake without culpable negligence (Macomber v. Mayor of N. Y. 17 Abb. 37; Quinn v. Case, 2 Hilton, 467; Excise Comm's of N. Y. v. Hollister, 2 Hilton, 588). He should show the nature of the answer he desires put in (Hunt v. Wallis, 6 Paige, 371; Wells v. Cruger, 5 Paige, 164), and serve a copy of his proposed answer (Marquise v. Brigham, 12 How. 399). A motion to vacate a judgment taken for want of an answer in a foreclosure action, and to allow

defendant to answer was denied; where it appeared that the answer would not constitute a defense (Dwight v. Webster, 10 Abb. 128). And where a married woman was sued alone for a debt contracted during coverture, and judgment was taken against her for default of an answer, the court would not open the judgment to allow her to set up the defense of coverture, she having obtained the credit by representing herself as unmarried (Genet v. Dusenbury, 2 Duer, 679). An affidavit of a meritorious defense, alleging that the note in suit had been paid, without stating when, where, or how, is insufficient to support a motion to open a judgment (Hunter v. Lester, 10 Abb. 260).

a. Although upon a motion to open a judgment the defendant should make an affidavit of merits, yet the absence of such an affidavit is not a conclusive answer to the motion, the defect may be supplied on terms (Fassett v. Tallmadge, 15 Abb. 206).

b. A default was opened on stringent terms where the excuse was that both the client and attorney neglected to attend to the case (Selover v. Forbes, 22 How. 477); and so where the answer was prepared, but by neglect of the attorney's clerk was not served (Clark v. Lyon, 2 Hilton, 91).

c. The motion to open the default should be made promptly (Bogardus v. Livingston, 2 Hilton, 236).

d. Where upon a motion to open a regular judgment, entered upon failure to answer, it appeared that an answer was prepared by defendants' counsel in due season, but was not served, for the reason that he believed plaintiffs' proceedings to be irregular; that defendants' counsel made repeated efforts to see plaintiffs personally, in order to have the irregularity corrected, but was unsuccessful; and that he understood from plaintiffs' attorney that no further steps would be taken until he could have an interview with plaintiffs;-held, that this was a case of surprise, or excusable neglect, authorizing the court to open the judgment upon terms (Mann v. Provost, 3 Abb. 446). In general where a defendant seeks to open a judgment he has suffered voluntarily, and under the advice of counsel, he must show specifically what is his intended defense, and make an affidavit of merits (Ellis v. Jones, 6 How. 296).

e. The defendant, by reason of an irregularity in the service of an order giving him more time to answer, suffered his time to elapse without_answering. He then moved before entry of judgment for leave to answer;-held, (1) that, he showing a substantial defense, his motion should have been granted; and (2) that an order denying his motion, was appealable (McGuire v. Cace, 9 Abb. 160).

f. Appeal.-An order vacating a judgment entered for default of an answer, and letting the defendant in to answer, is not appealable to the general term (Churchill v. Mallison, 2 Hilton, 70). And an order refusing to open a default taken for want of an answer is not appealable (Millard v. Van Ranst, 17 Abb. 319, note).

9. Renewing motion.-Leave to renew a motion to open a default will not be granted to admit a defense known to defendant, but not urged, on the motion sought to be renewed (Pattison v. Bacon, 12 Abb. 142).

h. Relief against judgment.-When after judgment facts arise which make it clear that the judgment ought not to be enforced, relief against the judgment may be had on motion (see Gilchrist v. Comfort, 26 How. 394, and note to § 175 ante).

i. Action to set aside judgment.-(See Hamel v. Grimm, 10 Abb. 150).

j. Judgments against New York city.-Judgments against the city of New York, set aside pursuant to laws of 1859, p. 1123: (see Sharp v. Mayor of N. Y. 31 Barb. 572; id. 578; 20 How. 439; Joyce v. Mayor of N. Y. 12 Abb. 309; Macomber v. Mayor of N. Y. 17 Abb. 35; Martin v. Mayor of N. Y. 11 Abb. 295; 12 Abb. 243; Outwater v. Mayor of N. Y. 20 How. 213; The People v. Mayor of N. Y. 11 Abb. 66; Lowber v. The Mayor of N. Y. 5 Abb. 325; id 481; Sharp v. Mayor of N. Y. 9 Abb. 426; id. 243; Baker v. Mayor of N. Y. 9 Abb. 82).

a. Laws 1866, p. 2070, § 10. Laws 1867, p. 1606, § 6, provide that no judgment in actions on contract shall be entered against the Mayor, &c., of New York, except upon proof in open court that the amount to be recovered remains unexpended in the city treasury to the credit of the appropriation to the specific object upon which the claim in suit is founded (see Tribune Asso. v. Mayor of N. Y. 48 Barb. 240; and see laws 1865, p. 1335, § 4, 5).

§ 247. Judgment on frivolous demurrer, answer, or reply. If a demurrer, answer or reply, be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or ont of the court, for judgment thereon, and judgment may be given accordingly.

6. What is a frivolous pleading.—A frivolous answer denies no material allegation of the complaint, and sets up no defense (Hull v. Smith, 8 How. 150; Kelly v. Burnett, 16 id. 135). It is an answer which if true does not contain any defense, and the insufficiency of which is so glaring as to appear upon a bare inspection without argument (Nichols v. Jones, 6 How. 358; Sixpenny Savings Bank v. Sloan, 12 id. 544; Lefferts v. Snediker, 1 Abb. 41; Leach v. Boynton, 3 id. 3; Hecker v. Mitchell, 5 id. 455; Brown v. Jennison, 3 Sand. 732; Struver v. Ocean Ins. Co. 2 Hilton, 475; Smith v. Mead, 14 Abb. 262). It is not simply an answer bad upon its face, but one which in the opinion of the court, has been certainly interposed in bad faith for the mere purpose of delay (Hull v. Smith, 8 How. 150). "It is not the motive with which an answer is put in, or its truth or falsity, that is the test, on a motion for judgment on the ground of its frivolousness. If it is a good defense on its face the motion must be denied" (Hecker v. Mitchell, 5 Abb. 455). “No pleading can be called frivolous which traverses a material allegation in the complaint, or sets up matter which if true constitutes a defense to the action" (id. Richter v. McMurray, 15 Abb. 346; Davis v. Potter, 4 How. 155; Temple v. Murray, 6 How. 331; Metropolitan Bank v. Lord, 1 Abb. 185; 4 Duer, 630; Caswell v. Bushnell, 14 Barb. 393); whether or not the pleading is verified makes no difference (Reed v. Latson, 15 Barb. 17). Although a verification may possibly save an answer from being struck out as false, it has no such potency to protect it from being adjudged frivolous (Thorn v. N. Y. Central Mills, 10 How 25; Sherman v. N. Y. Central Mills, 1 Abb. 187). A pleading will be held to be frivolous where there is a decision in point adverse to its sufficiency (B'k of Wilmington v. Barnes, 4 Abb. 226; The People v. McCumber, 15 How. 193; Strong v. Stevens, 4 Duer, 688; Collins v. Suau, 7 Rob. 624; Langdale v. McLean, 10 Jurist, 642; Withers v. McLean, 6 Lond. Law Times, 352). But the court will not hold a pleading frivolous and give judgment on it, "unless it clearly appears to be taken for the purpose of delay, or unless the grounds stated in it are clearly untenable" (Sixpenny Savings Bank v. Sloan, 2 Abb. 414; 12 How. 544; and see Munn v. Barnum, id. 563; Temple v. Murray, 6. How. 331; Rae v. Wash. Mut. Ins. Co. 6 How. 21; Niblo v. Harrison, 7 Abb. 447, n).

c. Answers adjudged to be frivolous.—An answer in an action of tort, e. g. assault which merely states matter controverting the degree of aggravation by which it was characterized (Lane v. Gilbert, 9 How. 150; Gilbert v. Round, 14 id. 46); an answer denying that plaintiff is the lawful owner of the note in suit (Catlin v. Gunter, 1 Duer, 253; Fleuret v. Roget, 5 Sand. 646; Higgings v. Rockwell, 2 Duer, 653; De Santes v. Searle, 11 How. 477; Fosdick v. Groff, 22 How. 158; Chadwick v. Booth, 13 Abb. 249; 22 How. 23; Smith v. Mead, 14 Abb. 265; Plant v. Schuyler, 7 Rob. 271); an answer stating that the note was made for the accomodation of the payee without more (Andrews v. Storms, 5 Sand. 609; Pettigrew v. Chave, 2 Hilton, 546).

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An answer which denies knowledge or information sufficient to form a belief that the defendant (a corporation) made its promissory note, as it is set out in the complaint (Sherman v. N. Y. Central Mills, 1 Abb. 191; 10 How. 20; overruled, see 7 Bosw. 675); an answer that the note was not presented for payment at the time it became due, and at the place it became payable (Tompkins v. Acer, 10 How. 309); an answer by a married woman that the mortgage in suit was not acknowledged by her on a separate examination (Cramer V. Comstock, 11 How. 486); an answer setting up a levy under a foreign attachment (Hecker v. Mitchell, 5 Abb. 454); an answer denying indorsement to the plaintiff (Kemlah v. Saltus, 6 Abb. 226; 1 Hilton, 558; see Duncan v. Lawrence 6 Abb. 304; 3 Bosw. 103). An answer stating only such facts, as under the former system, if set out in a special plea, would have made the latter bad on a general demurrer, according to decisions determining the precise question (Strong v. Stevens, 4 Duer, 668). An answer by the payee to a complaint in an action on a promissory note against the maker and payee, that the payee indorsed the note for the accomodation of the maker and that fact was known to plaintiff when he received the note (Pettigrew v. Chave, 2 Hilton, 546; Andrews v. Storms, 5 Sand. 609). An answer that the defendant at the time of the commencement of the action was and ever since has been and still is Envoy Extraordinary and Minister Plenipotentiary of the United States of America to Brazil (Mechanics' Bank v Webb, 21 How. 450). An answer which merely denies the allegation of indebtedness set up in the complaint (Fosdick v. Groff, 22 How. 158). An answer in an action on a promissory note which sets up a parol agreement between the parties without consideration inconsistent with the tenor of the note, is frivolous (Elizabethport Manuf. Co. v. Campbell, 13 Abb. 87; see also Plant v. Schuyler, 4 Abb. N. S. 146; Bailey v. Lane, 13 Abb. 354); and where the complaint alleged that plaintiff as agent of A. sold and delivered certain goods to defendant and that defendant promised plaintiff to pay for said goods, an answer, setting up that said goods belonged to A. and not to plaintiff, and that A. and not plaintiff sold them to defendant, but which did not deny either the delivery by plaintiff nor plaintiff's agency nor the promise to pay plaintiff, was held to be frivolous (Reilly v. Cook, 13 Abb. 255; 22 How. 93). To a complaint against the sureties on an undertaking on appeal, an answer that the appellant owned real property, and that the execution was returned by the sheriff before the expiration of sixty days, at the respondent's request and without any attempt to collect the judgment out of such real estate, is frivolous (Wood v. Derrikson, 1 Hilton, 410).

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a. Answers adjudged not to be frivolous.-Answer in an action against a married woman to charge her separate estate, that she has no separate estate (Aitken v. Clark, 15 Abb. 319). An answer which denies knowledge or information sufficient to form a belief as to all the material allegations of the complaint (Richter v. McMurray, 15 Abb. 346). An answer The defendant says he denies each allegation" (Chapman v. Chapman, 34 How. 281). An answer by an endorsee of a note where the complaint alleges a transfer to the plaintiff and possession of the note denying the transfer only without denying that the plaintiff had possession of the note (Chadwick v. Booth, 13 Abb. 249; 22 How. 23; and see Metropolitan Bank v. Lord, 1 Abb. 185). An answer which did not constitute a defense, but which stated facts that might, by being properly alleged, constitute a defense (Alfred v. Watkins, 1 Code Rep. N. S. 343; Struver v. Ocean Ins. Co. 9 Abb. 23; and see Nat. B'k of Metro. v. Orcutt, 48 Barb. 256; Wood v. Mayor of N. Y. 3 Abb. N. S. 467). An answer that prior to the commencement of the action the plaintiff sold and delivered the cause of action to A. who is still the holder and owner of it (Smith v. Mead, 14 Abb. 262). And where the complaint alleged that the plaintiff was the owner and holder of the note in suit, the court refused to treat as frivolous an answer which denied that the plaintiff was owner and holder, and alleged that one V. G. was the real owner and holder of said note and the real party in interest (Tamisier v. Cassard, 17 Abb. 187; and see Arrangois v. Frazer, 2 Hilton, 244). Where plaintiff sued in a representative

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