Hays v. Berryman — 19 N.Y. Super. Ct. 679

Majority

p. 679

Edward Hays, by his Guardian, v. Otway H. Berryman.

Headnote

1. A defendant who, after suit brought, in which a sworn answer is required, voluntarily leaves the country and remains absent several months without communicating with his attorney, is guilty of such gross laches that the Court will order judgment for the relief sought, notwithstanding the belief of his attorney that he has a defense.

2. If the object of the defendant is to mitigate the damages in an action for an assault and_ battery and false imprisonment, no answer is necessary. Evidence in mitigation may be given by the defendant on the execution of the writ of inquiry.

3. The absence of a material witness will be no ground for denying judgment and awarding a -writ of inquiry, if it appears that the witness has been in the city several times since the action was brought, and no reason is given for not taking his testimony.

4. That the attorneys for* the defendant are also the regular and accustomed attorneys and counsel of the Sheriff of the city and county of New York, in all his litigation and business, is no sufficient reason for departing from the usual practice of directing the writ of inquiry to be executed by the Sheriff before a Sheriff’s jury, and ordering an assessment at a Trial Term before one of the Judges and a jury there impanneled.

(Before Woodruff, J.)

At Special Term;

June 21st, 1860.

Motion by the plaintiff in an action for assault and battery and false imprisonment for judgment on a default of answer, and that, instead of an order that a writ of inquiry of damages issue to the Sheriff, to be executed by him before a Sheriff’s jury, an order might be made directing that the plaintiff’s damages be assessed at the now present Trial Term, before the Judge holding such Term, and a jury there impanneled. The ground upon which this special order was sought was, that the attorneys for the defendant are, and have been for many years, the legal advisers, attorneys and counselors of the Sheriff in all his business, and in intimate and confidential intercourse with him, and that the plantiff believes that on an assessment they will have an unfair advantage over him and his attorneys, and that the damages will not, therefore, be fairly assessed-

On the part of the defendant it was attempted to obtain further time to answer, and time to produce a witness who was

p. 680

absent. It appeared that the defendant left the city and went from the country soon after the suit was brought, and had not communicated with his attorneys since: that some months had elapsed, and the time to answer had been several times extended. The complaint was sworn to; and some negotiation had been had respecting a waiver of the oath to the answer: and the indication was, that the facts the defendant’s counsel proposed to set up in the answer were rather matters in mitigation than matters of defense. The defendant’s attorneys were acting in good faith, and deemed it important that the answer should be put in. It appeared that the witness whom the defendant wished to examine had been several times .in the city since the action was commenced, and was a seafaring-man, and was now absent on a voyage.

William C. Russell, for the plaintiff, in support of the motion.

A. Oakey Hall, for the defendant, in opposition.

1. The delay on the part of the defendant is not so excused as to warrant the granting of further indulgence to the defendant and further time to answer. The excuse sufficiently exonerates the defendant’s attorneys, who may have done their duty; but it does not relieve the defendant himself from the imputation of gross laches.. Had he given proper attention to his own business, he would either have sworn to his answer before he left the country, or have devised some mode of communicating with his attorneys for that purpose during the many months that have since elapsed.

2. If the object of putting in an answer be to enable the defendant to give evidence in mitigation of damages, the answer is probably unnecessary. Evidence in mitigation, it has been held, may be given by a defendant on the execution of a writ of inquiry. ( 5 Duer, 646 ; 9 How. Pr. R., 150.)

3. The absence of the witness mentioned in the affidavits on the part of the defendant, would furnish no adequate ground for denying the motion, since he might have been examined before he left on his last voyage, or on other occasions since the action was brought. Ho special reason is assigned for not taking his deposition, and no diligence is shown to prevent the loss of his testimony.

p. 681

4. But I do not deem the reason given for moving to have the damages assessed in Court a sufficient one to require us to depart from the usual practice. The only ground is, that the attorneys for the defendant are also the legal advisers of the Sheriff in matters pertaining to his office. If this reason should prevail in this instance, it should prevail to make such an order proper in all cases of the execution of a writ of inquiry in which those attorneys are retained by defendants, and not only so, it would forbid the granting of a writ of inquiry in all cases in which they were the moving counsel on behalf of plaintiffs also. Ho imputation upon the integrity of either the Sheriff or the attorneys is contained in the affidavits by direct terms, and yet the granting of the motion would incidently impute want of fairness at least to the Sheriff and the attorneys also.

The motion must be granted so far as it prays the relief sought in the complaint, and an order may be taken for a writ of inquiry of damages or an assessment by the Sheriff’s jury, unless the plaintiff prefers to accept the answer without the oath of the defendant, in which case if the cause is on the Calendar of the June Term, he can proceed to trial in the usual manner

Ordered accordingly.