
    Atterbury against Teller, Jun.
    In an action on a promissory note, if, in consequence of the plaintiff's attorney having no agent in Albany, the suit be non-prossed there for want ot declaring, and judgment by default be obtained in Hew York, and the damages assessed by the clerk endorsed on the note, the court will, when the costs of non-pros have been paid, and the judgment in Hew York vacated, order the damages assessed and endorsed to be struck out, that the plaintiff may, in a second action, proceed to trial without any embarrassment from the former proceedings.
    This was an action on two promissory notes, on which the clerk had assessed damages.
    A former suit had been brought on the same notes which were the foundation of the present action. The attorney for the plaintiff lived in New York, and had not any agent in Albany, near to which the attorney of the defendant resided. Whilst the plaintiff’s attorney was proceeding, in New York, to obtain judgment, the defendant’s attorney placed up, in the clerk’s office in Albany, the usual notica of appearance, and of a rule to declare, after the expiration of which, no declaration having been received, the defend ant, after the regular affidavit of due service, entered a non pros for not declaring. During these transactions in Albany, the plaintiff went on in Eew York, and there obtained, subsequent to the entry of non pros in Al-[*496] bony, a judgment *by default; after which the clerk of the court duly assessed damages, and endorsed the amounts on the respective notes. The attorney on record for the plaintiff having been changed, the present attorney discovered the above circumstances, and as the judgment of nonpros had been entered in consequence of the original attorney for the plaintiff not having had an agent in Albany, he paid the defendant’s attorney the costs of nonpros, and agreed to vacate his own judgment, which was accordingly done.
    A second action being now commenced, the. plaintiff was apprehensive that the assessment of damages under the first, might be made use of on the trial, as a species of judgment already recovered.
    Pendleton,
    on affidavits containing the above facts, moved for liberty to strike out the assessment endorsed, and proceed to trial on the merits, in the same manner as if the damages had never b8en assessed.
    
      Van Antwerp
    
    resisted the motion, relying on the assessment being conclusive as to the amount.
   Per Curiam.

Take the effect of your motion, with costs of this application to be paid by the defendant.

Motion granted.  