Majority
p. 202BAYERDORFER v. BOWLES. (City Court of New York, General Term. May 3, 1899.) Argued before FITZSIMOYS, C. J., and MCCARTHY, J.
Headnote
1. Special Term—Leave to Enter Judgment.Where a summons is served with a notice, but no verified complaint served, an application should be made to the special term for leave to enter judgment.
2. Damages—Proceedings for Assessment—Clerks of Court.
In cases where the clerk may determine the amount of .damages, it is error to appoint a referee for such purpose.
Appeal from special term.
Action between Frederick Bayerdorfer and Frank Bowles. From an order of the special term justice, an appeal is taken.
Modified.
Carl Fischer-Hansen, for appellant.
Large & Stallnecht, for respondent.
In making the order appealed from, the special term justice followed the settled practice of this court. Where a summons is served with a notice, but no verified complaint served, the practice here is to apply to the special term for leave to enter judg
p. 203
ment. We think that it was not necessary in this instance to appoint a referee to determine the amount of damages. The clerk may do so. Nor do we think that costs should have been allowed. Therefore the order must be modified by striking therefrom the costs allowed; also the provision appointing a referee; and, as so modified, the order is affirmed, without costs or. disbursements to either party. Of course, the plaintiff’s attorney will credit, on the issuance of the execution, the amount received herein by his client.