Bassett v. French

Parker, Ch. J.

The complaint alleged the making of a contract between the plaintiff and defendant, breach thereof by the defendant, and demanded judgment in the sum of three thousand dollars.

The defendant by his attorney served a notice of appearance, but made default in answering, whereupon the plaintiff, in pursuance of § 1216 of the Code and upon notice, made application to the court at Special Term for an order of reference to ascertain and assess the damages. The court adjudged the plaintiff to be entitled to the damages by him sustained on account of the cause of action alleged in the com *47 plaint, and appointed a referee to assess them. The referee, attended by the counsel for both parties, took the evidence offered, and assessed the damages at $2,719.66, for which amount a judgment was subsequently entered. An appeal was thereafter taken to the General Term, which court modified the judgment by deducting therefrom the sum of $300, and as thus modified the judgment was affirmed. From such judgment both parties have attempted to appeal to this court, having apparently overlooked the case of Bossout v. R., W. & O. R. R. Co.

( 131 N. Y. 37 ), which holds that a proceeding for the assessment of damages, whether taken after a plaintiff’s cause of action has been admitted by the defendant’s failure to answer, or after the affirmance of an order granting a new trial and the entry of judgment absolute thereon, is not the subject of review in this court. The method of review in such cases is by motion to set aside the inquisition, which is largely addressed to the discretion of the Special Term, and is, therefore, the subject of review by the appellate branch of the same court, and by that court only.

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed.