ENTRY OF DEFAULT JUDGMENT

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Under the provisions of the Civil Practice Act, the clerk of the court should enter judgment, upon default of the

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* §§ 485, 486, 487, 488 in effect Oct. 1, 1921, fomerly §§ 420, 1212, 1213, 512, C. C. P. For convenience, these sections are given in full at this point.

Sec. 485. Entry of Default Judgment by the Clerk. Judgment may be taken without application to the court where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract or capable of being ascertained therefrom by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only. This section includes a case where the breach of the contract set forth in the complaint is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim or other credit.

Sec. 486. Proof to be Filed with Clerk by Plaintiff upon Default. In an action specified in the last section, where the summons was personally served upon the defendant, and a copy of the complaint or a notice stating the sum of money for which judgment will be taken was served with the summons, or where the defendant has appeared but has made default in pleading, the plaintiff may take judgment by default, as follows:

1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons and of a copy of the complaint or the notice; and also proof by affidavit that the defendant has not appeared. Whereupon the clerk must enter final judgment in his favor.

2. If the defendant has seasonably appeared but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance or of the appearance only; and also proof by affidavit of the default. Whereupon the clerk must enter final judgment in his favor.

Sec. 487. Determination by Clerk of Amount of Default Judgment. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows:

1. If the complaint is verified, the judgment must be entered for the sum for which the complaint demands judgment; or, at the plaintiff's option, for a smaller sum; and if a computation of interest is necessary, it may be made by the clerk.

2. If the complaint is not verified, the clerk must assess the amount due to the plaintiff by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action stated in

defendant, where the action is brought to recover rent under an express agreement, and the amount is fixed or capable of being ascertained by computation only.

If the action is to recover for reasonable rental value, the judgment, upon default of the defendant, cannot be entered by the clerk without application to the court or a judge thereof."

the complaint; and by ascertaining by the examination of the plaintiff upon oath, or by other competent proof, the amount due to him for any other cause of action stated in the complaint. If an instrument specified in this subdivision has been lost so that it cannot be produced by the clerk, he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment and the oral proof, if any, taken thereupon.

Sec. 488. Judgment for Excess where Counterclaim Interposed. In an action upon contract where the complaint demands judgment for a sum of money only, if the defendant by his answer does not deny the plaintiff's claim but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff upon filing with the clerk an admission of the counterclaim may take judgment for the excesses upon a default for want of an answer.

'Civil Practice Act, §§ 489, 490, 491, formerly C. C. P, §§ 1214, 1215. These sections are printed in full in this place as a matter of convenience:

Sec. 489. Application to Court for Judgment by Default. Where the summons was personally served upon the defendant within the state and he has made default in appearing, or where the defendant has appeared but has made default in pleading, and the case is not one where the clerk can enter final judgment, as prescribed in sections four hundred and eighty-six and four hundred and eighty-seven of this act, the plaintiff may apply to the court or to a judge thereof for judgment.

Sec. 490. Rendering Default Judgment by Court. The court or judge upon an application by a plaintiff for judgment by default, upon the filing by the plaintiff of proof of default, thereupon must render the judgment to which the plaintiff is entitled and, with or without a jury, may make a computation or assessment or take an account or proof of a fact, or may direct a reference or a writ of inquiry, except that where the action is brought to recover damages for a personal injury or an injury to property, the damages must be ascertained by means of a writ of inquiry or by a jury in court. Where a reference or writ of inquiry is directed, the court or judge may direct that the report or inquisition be returned to the court or judge for further action; or, except where special provision is otherwise made by law, may direct that final

The judgment in either contingency should take the form which the statute directs. 10

There is no discretion in the court in respect to the form the judgment should take. It must contain the provision for the issuance of a warrant in the event the judgment is not paid.11

The entry of a judgment by the clerk in the form provided by the statute is a purely ministerial duty. 12

Before the warrant of dispossession is issued, there must be proper proof by affidavit filed showing the service of a copy of the judgment and the fact that five days have elapsed and that the amount of the judgment has not been paid either to the landlord or clerk of the court. If the service is not made on the defendant personally, the affidavit must show that personal service cannot be made and it must show this by setting forth the facts in respect to the attempt to make the service. The mere statement that "personal service cannot be made " is a conclusion. 13

The law provides, as has heretofore been noted, that if personal service cannot be made, a copy of the judgment judgment be entered by the clerk in accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application.

Sec. 491. Application where one or more Defendants have appeared. If one or more of the defendants have appeared and one or more defendants have failed to appear, an application by a plaintiff for judgment by default must be made to the court unless the defendants who have appeared consent to the making of such application to a judge out of court.

10 Laws of 1921, Chap. 434, § 5.

11 Laws of 1921, Chap. 434, § 5. See Erlich v. Stock, 67 Misc. 399, 123 N. Y. Supp. 87.

12 People ex rel. Rosensweig v. Costigan, 54 App. Div. 186, 66 N. Y. Supp. 376; Erlich v. Stock, supra; Daniel v. Bklyn. Heights R. R. Co., 80 Misc. 208, 211.

13 See Lauer's Pr. Suppl. page 67, citing Johnson v. Kalisak, 90 Misc, 597, 153 N. Y. Supp. 955,

may be left "at the residence of the defendant with a person of proper age.'

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OPENING DEFAULT AND VACATING WARRANT

Power is conferred on the court to open a default 15 in an action to recover rent or rental value and to vacate, amend, correct or modify any process, judgment or warrant in furtherance of justice, provided the court had jurisdiction to vacate a judgment rendered upon default. The language of this provision of the statute is not altogether clear, but it is believed the purpose was to confer jurisdiction to vacate a warrant on the Municipal Court of the City of New York or any other court similarly situated. It had been held in August, 1920, that a justice of the Municipal Court had no power to vacate a warrant in summary proceedings after it had been issued, 16 and presumably the Legislature thought it proper to confer power of this character upon the court in default cases.

14 § 5, Laws of 1921, Chapter 434.

15 Chapter 434, Laws of 1921, § 8-originally § 7 of Chap. 944, Laws of 1920. 16 People ex rel. Halperin v. Strahl, 113 Misc. 23, 184 N. Y. Supp. 710 (Supreme Ct., Special Term, Van Siclen, J.), making permanent an alternative writ of prohibition against a justice of the Municipal Court. See also Myers v. Cohen, 186 N. Y. Supp. 606, where People ex rel. Halperin v. Strahl, supra, was cited with approval.

CHAPTER XVIII

The Deposit 1

WHEN REQUIRED

The tenant who desires to question the "fairness and reasonableness" of the amount of the rent, using that term in its broadest sense, must secure the landlord by a deposit of the rent.

He must do this whether the action be to recover rent under an agreement, or rental value for the use and occupation of the premises.

He must make the required deposit in every case where the "issue of fairness and reasonableness of the amount demanded in the complaint be raised." As the issue may be raised in an action to recover the rental value of use and occupation, by a denial of the sum alleged to be the reasonable rental value, the tenant in such a case would seem clearly to be required to make a deposit. Generally, in every case, where the tenant questions by his answer the fairness and reasonableness of the rent or rental value, the required deposit must be made.

It has been held 2 that an answer in an action brought to recover reasonable rental value for use and occupation, which sets up as a separate defense that the premises were occupied under a special agreement fixing at a sum stated the rent to be paid, does not raise the issue of reasonableness, and that consequently no deposit is required in such a case.

1 See § 6 of Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921. 2 Riccobono v. Cleary, 114 Misc. 174, 186 N. Y. Supp. 925 (City Court of N. Y., Callahan, J.)