Guilhon v. Lindo

9 Bosw. 605

Opinion

By the Court — Bosworth, Ch. J.

Is the answer frivolous ?

It avers that, up to the time this suit was brought, only two boxes of wine (of 24 bottles each) had been sold, and that these were sold to the plaintiffs’ agent, at their request; that the use of the label was accidental, “ without any intent or knowledge of this defendant to injure or defraud the plaintiffs, or to imitate or counterfeit their said label, and did not represent the wine or the label to be that of the plaintiffs.”

This denies all fraudulent intent, and, if true, is substantially an answer to the' claim for damages. These allegations, if true, are material on the question of costs.

That part of the order which directs the damages to be assessed by a Jury is clearly wrong. (Oode, § 246, sub. 2.) The proofs must be taken by the Oourt, or a reference be ordered. (Id.) It is not an action to recover money only, or specific real or personal property with damages for withholding it, nor is the examination of a long account involved. It is only in these actions that damages can be assessed by a Sheriff’s Jury. (Id.)

The Oourt should either have pronounced the proper judgment, leaving’ nothing to be ascertained but the amount of the damages; or else it should have simply adjudged the answer frivolous, and then left the plaintiff to apply for the relief demanded by the complaint, as prescribed by section 269 of the Oode. (12 How. Pr., 342.)

Order reversed.