
    SALTUS a. KIP.
    
      New York Superior Court; Special Term,
    
    
      January, 1856.
    Notice of ApplicatioN fok Assessment. — Leave to Answek.-
    In an action of assault and battery, in which the defendant has given notice of appearance before the time for answering expired, it is irregular to apply exparte and without notice, for an order that plaintiff’s damages be assessed by a jury.
    In such a case the defendant will not be permitted to put in an answer which admits the assault and battery, and merely alleges that there was provocation which should mitigate damages. This may be shown on the assessment of damages on a default to answer.
    Motion to set aside an order for assessment of plaintiff’s damages and for leave to answer.
    This was an action of assault and battery. Within twenty days after service of the summons and complaint, the defendant appeared by attorney, but made default in answering. When the time to answer had expired, the plaintiffs applied exparte and obtained an order that his damages be assessed by a jury. The defendant now moved to set aside that order for irregularity, and for leave to put in an answer, which he produced. The answer did not deny the assault and battery, but set up circumstances mitigating its character.
    
      Bangs and Ketchum, for the motion.
    
      II. II. Morange, opposed.
   BoswoRTH, J.

The order to assess damages could only be granted on an application for the relief demanded by the complaint. No notice of the application having been given, it is irregular and must be set aside {Code, § 246, subd. 2).

The answer contains no defence; — on a demurrer to it for insufficiency, judgment would be given for the plaintiff. (Laws of 1855, ch. 44; Lane v. Gilbert, 9 How. Pr. R., 150). In such a case the damages would be assessed in the same manner as if no answer had been put in. (Code, § 269).

The same proceedings may be bad 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 and circumstances relating to, and any immediate provocation which in the judgment of law tends to mitigate, damages.

The motion for leave to put in the proposed answer is denied.  