Minister of the Dutch Reformed Church v. Wood , 8 Barb. 421 ( 1850 )

By the Court, Hand, J.

This judgment was entered up under the code of 1848. In this class of actions, if the taking of an account, .or the proof of any fact, was necessary to enable the court to give judgment, &c. the court, instead of taking the account or hearing the proofs, could have ordered a reference. And where the action was for the recovery of money only, the court, if the plaintiff required it, ordered the damages to be assessed by a jury, &c. (Code of 1848, § 202.)

It is evident that no judgment by default in an action for a trespass, could have been taken without proof. An assessment was necessary. In this case the order for judgment recites the proof of service and of default to answer, and then, upon motion of the plaintiffs’ attorney, it was adjudged that the judgment mentioned in the summons, to the amount of the sum therein claimed, should be enforced against the defendants with interest. It can not be presumed that there was any inquisition or assessment taken of the damages, either by the court or by a reference or jury. This was erroneous, and the judgment must be reversed; and the cause sent back to be properly disposed of at a special term. I think the court has power to do this within the spirit of section 330 of the present code. As this is not a ease of partial affirmance, or ordering a new trial, the appellants must have costs.

Judgment reversed.