Bassett v. French
| Decision Date | 01 February 1898 |
| Citation | 155 N.Y. 46,49 N.E. 325 |
| Parties | BASSETT v. FRENCH. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Action by Charles O. Bassett against Thomas Henry French. From a judgment of the general term (31 N. Y. Supp. 667) modifying, and affirming as modified, the judgment of the special term entered on the report of a referee, both parties appeal. Dismissed.
William S. Maddox and Henry D. Hotchkiss, for plaintiff.
A. J. Dittenhoefer, for defendant.
The complaint alleged the making of a contract between the plaintiff and defendant, breach thereof by the defendant, and demanded judgment in the sum of $3,000. The defendant, by his attorney, served a notice of appearance, but made default in answering, whereupon the plaintiff, in pursuance of section 1216 of the Code of Civil Procedure, and upon notice, made application to the court at special term for an order of reference to ascertain and assess the damages. The court adjudged the plaintiff to be entitled to the damages by him sustained on account of the cause of action alleged in the complaint,and appointed a referee to assess them. The referee, attended by the counsel for both parties, took the evidence offered, and assessed the damages at $2,719.66, for which amount a judgment was subsequently entered. An appeal was thereafter taken to the general term, which court modified the judgment by deducting therefrom the sum of $300; and, as thus modified, the judgment was affirmed. From such judgment both parties have attempted to appeal to this court; having apparently overlooked the case of Bossout v. Railroad Co., 131 N. Y. 37, 29 N. E. 753, which holds that a proceeding for the assessment of damages, whether taken after a plaintiff's cause of action has been admitted by the defendant's failure to answer, or after the affirmance of an order granting a new trial, and the entry of judgment absolute thereon, is not the subject of review in this court. The method of review in such cases is by motion to set aside the inquisition, which is largely addressed to the discretion of the special term, and is therefore the subject of review by the appellate branch of the same court, and by that court only. The appeal should be dismissed, with costs. All concur. Appeal dismissed.
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Jensen v. Union Ry. Co. of New York City
...the right of this court to review a judgment and order of this kind when there had been an abuse of discretion. Bassett v. French, 155 N. Y. 46, 49 N. E. 325, related to a default in pleading, and to the ordinary rule that discretionary orders and judgments are not appealable to this court.......
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Gulf & S. I. R. Co. v. McGlohn
... ... J. 110; Baldwin v. Kohler, 92 Misc. 174, 155 N.Y.S ... 196; Marx v. New York Ribbon Co., 95 Misc. 551, 159, ... N.Y.S. 853; Bassett v. French, 10 Misc. 672, 31 ... N.Y.S. 667, 1 N.Y. Ann. Cas. 270, 155 N.Y. 46, 49 N.E. 325; ... Hard v. Seeley, 47 Barb. 428; Newton v ... ...
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City Trust v. American Brewing Co.
...raised is as to whether this order is appealable. No appeal lies from such an order to this court as a matter of right. Bassett v. French, 155 N. Y. 46, 49 N. E. 325. Neither does an appeal lie, even though certified by the Appellate Division, where the assessment of the damages involved a ......
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