Gilbert v. Rounds

| N.Y. Sup. Ct. | Jan 15, 1857

By the court—Balcom, Justice.

The statement of facts, in the complaint, constitutes but one cause of action. If the action could be tried upon the complaint and answer, the plaintiff would be entitled to a verdict for nominal damages, without-making any proof whatever; and the defendant could not deprive him of such a verdict by proving all the allegations contained in his answer.

The statement in the complaint, that the defendant, on the 3d day of July, 1856, at Oxford, with force and violence, assaulted the plaintiff, and seized and laid hold of the plaintiff, is not denied or avoided by any allegations in the answer. The denials and statements of new matter, in the answer,, merely controvert the aggravating circumstances that the complaint shows attended the commission of the assault and battery, which is therein charged against the defendant. Circumstances of aggravation, in actions for assaults and batteries, never were traversable. (Bates agt. Loomis, 5 Wend. 134.) A defendant did not admit such matters by not pleading to the declaration, prior to the Code. (5 Wend. 134; Gra. Pr. 2d, ed. 798, &c.)

Is the answer frivolous 1 If the case of Lane agt. Gilbert (9 How. Pr. R. 150) is to be followed, it is clearly frivolous. The defendant’s counsel insist that an answer in an action for an assault and battery, may contain new matter, that goes only in mitigation of the plaintiff’s damages. They rely upon Stiles agt. Comstock, (9 How. Pr. R. 48,) Heaton agt, Wright, (10 id. 79,) and Herr agt. Bamberg, (id. 128,) to establish this position. They were all actions for slander, in which the Code expressly permits the defendant to allege, in his answer, any mitigating circumstances, to reduce the amount of damages, (Code, §§ 164, 165.) These decisions are therefore inapplicable to the case at bar.

A frivolous answer has been defined to be, one which, if true, does not contain any defence to any part of the plaintiff’s cause of action. (Nichols agt. Jones, 6 How. Pr. R. 355; Leach agt. Boynton, 3 Abbott’s Rep. 1.) An answer that merely controverts allegations of the complaint is frivolous, unless it contains a denial of some material allegation of the complaint. (Temple agt. Murray, 6 How. Pr. R. 329; Hull agt. Smith, 8 id. 149; Edson agt. Dillaye, id. 273; Lane agt. Gilbert, 9 id. 150; 10 id. 457.) An answer that only controverts the allegations of the complaint, is frivolous, if it does not put in issue some allegation, which the plaintiff must establish, to entitle him to a verdict. The answer in this action, so far as it contains denials only, fails to do this, and is therefore frivolous. (5 Wend. 134.)

The statements of new matter in the answer, do not constitute a defence to the action, or a counter-claim. (Code, § 150; 12 How. Prac. Rep. 310. Kneedler agt. Sternburgh, 10 id. 67; Drake agt. Cockcroft, id. 382; 7 id. 123, 294, 303.) A counter-claim need not be sufficient to defeat the whole of the cause of action against which it is interposed; but any other defence, consisting of new matter, except in actions for libel and slander, must be an answer to the entire cause of action, to which it is set up. (10 How. Pr. R. 68.) The answer is frivolous, within these rules, so far as it sets up new matter as a defence to the action.

A defendant, by suffering a default., or by omitting to deny the allegations of the complaint, only admits the truth of such allegations in the complaint as the plaintiff would be obliged to prove, in order to recover upon an issue formed by a general denial of each and every allegation in the complaint. His default only admits the material and traversable matters set out in the complaint. (5 Wend. 134.) In other words, the omission of the defendant to answer is a confession only of the material allegations in the complaint, which must be established to entitle the plaintiff to a judgment. (Code, § 168; Fry agt. Bennett, 5 Sand. 54; Newman agt. Otto, 4 Sand. 668; Harlow agt. Hamilton, 6 How. Pr. R. 475.) The decision in The Mayor of Albany agt. Cunliff, (2 Com. 170, 171,) does not conflict with these views.

A default of a defendant, for not answering, in an action for an assault and battery, entitles the plaintiff to, a judgment, for only nominal -damages. (Bates agt. Loomis, 5 Wend. 134; Gra. Pr. 2d ed. 797-799.) If he claims more damages, he must prove the facts that will entitle him to recover them.

When a party suffers an inquest to be taken against him at the circuit, there is authority for saying that he thereby loses the right to produce testimony and examine witnesses on his part, and is restricted to the right of cross-examining the plaintiff’s witnesses. (Green agt. Willis, 1 Wend. 78; Gra. Pr. 2d ed. 292, 293.) But I am unable to find any authority that thus restricts the defendant’s rights, on the assessment of damages, either at the circuit or before a sheriff’s jury, when judgment goes against him by default for not answering the complaint; (see Foster agt. Smith, 10 Wend. 377; 5 id. 563; 1 Hill, 101; Gra. Pr. 2d ed. 798, 799;) and I think there is no such authority.

In Saltus agt. Kipp, (12 How. Pr. R. 342,) which was an action for an assault and battery, Bosworth, Justice, says,— A defendant may call witnesses, on the assessment of damages, upon a writ of inquiry, and prove any matter which properly goes to mitigate damages.” The case of Lane agt. Gilbert holds the same principle. The defendant in this action may call witnesses, on the assessment of the plantiff’s damages, whether they shall be assessed by a sheriff’s jury, upon, a writ of inquiry, or otherwise, to prove all proper mitigating facts and circumstances connected with the commission of the assault and battery upon the plaintiff. Hence there is no necessity for answering the complaint in the action. The defendant loses no right by being shut out from so doing; but he saves, by reason thereof, the costs of a trial at the circuit, with all its attending perplexities.

The order that the plaintiff, have judgment in the action for the frivolousness of the answer, should be affirmed, with ten dollars, costs.

Decision accordingly.