RANDOLPH a. FOSTER

RANDOLPH a. FOSTER. New York Common Pleas; Special Term, March, 1857 Allowance.—Trial.—Assessment or Damages on Default. There is no authority for granting an allowance in an action brought to foreclose a mechanic’s lien, in which the defendant fails to answer, and the plaintiff’s damages are therefore assessed by a sheriff’s jury. The assessment of damages by a sheriff’s jury is not a “ trial” within the meaning of section 308 of the Code. Proceedings to foreclose a mechanic’s lien do not constitute an action “for the foreclosure of a mortgage,”—or “ proceedings to compel the determination of claims to real property,”—within the meaning of section 308 of the Code. Motion for an allowance. This was an action brought to foreclose a mechanic’s lien; and the plaintiff being about to enter judgment as upon failure to answer, for his damages as assessed by a sheriff’s jury, now moved for an extra allowance. [MAJORITY — Daly, J.] Daly, J. —This is a judgment by default against the owner. The plaintiff’s damages have been assessed by a sheriff’s jury, and preparatory to entering up judgment, he asks for an extra allowance. There is no authority for granting an extra allowance in such a case. The action is for the recovery of money; but there has not been a trial within the meaning of section 308 of the Code. What is meant by a trial in that section, is the trial of an issue. If issue has been joined, the plaintiff, whether the defendant appears to contest at the trial or not, is bound to go on and establish the truth of the matters put in issue; but where the plaintiff takes judgment by default for want of an answer, the cause of action is admitted, and there is no occasion for a trial. A writ of inquiry issues, or a reference is ordered, under the statute of 1855, merely to ascertain the amount of the plaintiff’s damages. It is suggested that the course of procedure is analogous to the foreclosure of a mortgage, in which case an extra allowance may be granted. It is very true that this proceeding is analogous to the foreclosure of a mortgage ; but it is not the foreclosure of a mortgage, for which alone provision has been made in the section referred to. It is also suggested that it is in the nature of a claim upon real property; but it is not, in the language of the statute, a proceeding for the determination of claims to real property. As it falls, therefore, within none of the cases provided for by section 308, there is no authority for granting an extra allowance. As the point is suggested for the first time, I have consulted with my brethren, and they agree with me that we have no power to grant an extra allowance in such a case.