Atterbury v. Teller 1 Cole. & Cai. Cas. 309

Job Atterbury v. William Teller, Junior.

THIS was an action on two promissory notes, on which the clerk had, according to the practice of the court, assessed damages.

A former suit had been brought on the same notes, which were the foundation of the present action.— The attorney for the plaintiff lived in New-York, and had not any agent in Albany, near to which, the at*310torney of the defendant resided. Whilst the plain-tiE’s attorney was proceeding in New-York, to obtain judgment, the defendant’s attorney put up, in the clerk’s office in Albany, the usual notice of appearance, and of a rule to declare, after the expiration of which, no declaration having been received, the defendant, after the regular affidavit of due ser - vice, entered a nonpros for not declaring. During these transactions in Albany, the plaintiE went on in New-York, and there obtained, subsequent to the entry of nonpros in Albany, a judgment by default; after which, the clerk of the court duly assessed damages, and indorsed the amounts on the respective notes. The attorney on record for the plaintiE having been changed, the present attorney discover, ed the above circumstances, and as the judgment of nonpros had been entered in consequence of the original attorney for the plaintiE not having had an agent in Albany, he paid the defendant’s attorney the costs of nonpros, and agreed to vacate his own judgment, which was accordingly done.

A second action being'now commenced, the plain-fiE was apprehensive, that the assessment of damages under the first, might be made use of on the trial, as a species of judgment already recovered.

Pendleton,

on affidavits containing the above facts, moved for liberty to strike out the assessment indorsed, and proceed to trial on the merits, in the same manner as if the damages had never been assessed. Van Antwerp resisted the motion, relying on the assessment being conclusive as to the amount..