Majority
Headnote
In an action for the recovery of specific personal property, with damages for its detention, in case of failure to answer, the damages mnst he assessed by a sheriffs jury, unless a long account be involved, in which case a reference may be ordered. But plaintiff may waive damages, and take judgment for the delivery only.The action was one of claim and delivery to recover certain articles of furniture and pictures, with damages for the detention. The defendant appeared and demanded a copy of the complaint. This was duly served, and the time for answering or demurring is shown to have expired. Eight days’ notice of an application for the relief demanded, has been duly served. The summons was for the relief demanded in the complaint.
The last clause of the second subdivision of section 246, governs the case. The action is for the recovery of specified personal property, with damages for the withholding thereof. The damages in such a case are to be assessed by a jury, or if the examination of a long account be involved, by a reference. I cannot direct a reference as asked for. There is no account involved. I agree that the plaintiff may take judgment for the delivery of the articles, if he waives the claim for damages; otherwise a jury must assess them. The regular course is to direct an assessment by the sheriff’s jury. (3 How. Pr. R. 423; 1 Code R. 117.) Such will be the order in the present case.[1]
* Can a reference be ordered to assess damages under sub. 2 of § 246, in actions other than those for “ the recovery of money only,” and when such assessment in volves the examination of a long account? — Rep.