Htjbbs, J.
The complaint alleges that on April 19, 1926, the plaintiff and defendant entered into a written contract in which it was agreed that the plaintiff was to
have charge of the sales of the defendant at a salary of $12,000 a year for the balance of the year and for the year 1927; that the contract was carried out and the plaintiff was paid according to its terms; that he continued to work until and during the month of June, 1928, but that the $1,000 due for that month’s work had not been paid. It is also alleged that on or about January 12, 1928, the parties entered into a further agreement whereby the defendant agreed to employ the plaintiff for the balance of the year 1928 upon the same terms. On June 30th the defendant discharged the plaintiff and this action is to recover $1,000, the salary earned for the month of June and $6,000 damages for his wrongful discharge.
The defendant being in default in answering moved at Special Term to open the default. The motion was denied and defendant appealed to the Appellate Division. The order of the Special Term was affirmed. The plaintiff then moved at Special Term under section 490 of the Civil Practice Act for an assessment of damages. The motion was granted and the court directed- that the assessment be taken before it at Special Term. The parties appeared and the plaintiff established a
prima facie
case entitling him to a judgment for $7,000. The defendant then offered testimony over the plaintiff’s objection and exception tending to establish that a third party during the month of June before plaintiff’s discharge offered the plaintiff a similar position at the same salary. The plaintiff in his objection specifically pointed out that at the time of the alleged offer of employment, the plaintiff had not been discharged but was still employed under his contract with the defendant. The Special Term sustained the defendant’s contention, refused to award the plaintiff judgment for damages for his wrongful discharge but granted judgment for $1,000 salary for the month of June. Judgment was entered accordingly. The Appellate Division has affirmed the judgment and permission to appeal has been granted by this court.
In an action for damages for wrongful discharge the burden of going forward with the evidence upon an issue in reduction of damages is on the defendant. The testimony offered by the defendant was insufficient to establish any basis for the reduction of plaintiff’s damages. It was indefinite and uncertain and did not tend to establish that plaintiff could have procured similar employment elsewhere for any definite time at any definite salary.
It is urged by the appellant that it is improper, upon an assessment of damages, to receive testimony offered by a defendant to the effect that the plaintiff refused to accept similar employment and thereby reduce bis damages.
The defendant, by failing to answer, admits all traversable allegations contained in the complaint.
(Foster
v.
Smith,
10 Wend. 377; Paine & Duer Practice, vol. 1, p. 635.) An allegation of damage is not, however, a traversable allegation.
(Emery
v.
Baltz,
94 N. Y. 408, at 412.) It is not admitted by a defendant’s failure to answer.
(Hartness
v.
Boyd, 5
Wend. 563;
Howell
v.
Bennett,
74 Hun, 555, at 558;
Thompson
v.
Halbert,
109 N. Y. 329;
Lewis
v.
City Realty Co.,
158 App. Div. 733;
Sutton
v.
Duntley,
205 App. Div. 660.)
Upon an assessment of damages, a defendant who has served a notice of appearance is entitled to notice of the assessment, to appear and cross-examine the plaintiff’s witnesses, and to offer testimony upon the question of damages, not for the purpose of defeating the plaintiff’s cause of action
in toto,
because he has admitted the cause of action by failing to answer and plaintiff is entitled, in any event, to nominal damages. The testimony is competent, however, for the purpose of assisting the court in fixing the real damages suffered by the plaintiff.
(Kerker & Willets
v.
Carter,
1 Hill, 101;
Hartness
v.
Boyd, supra; Wandell
v.
Edwards,
25 Hun, 498; Graham’s Practice, 642.)
Where a summons and complaint is served personally,
and the clerk may enter a default judgment as provided in section 485 of the Civil Practice Act, the clerk must enter it for the amount demanded in the complaint, unless the plaintiff elects to have it entered for a smaller sum. (Civ. Prac. Act, § 487.) In such cases the default admits the cause of action alleged and the amount for which judgment may be entered. If the case is not one where the clerk may enter a default judgment for the amount demanded in the complaint, the plaintiff must “apply to a court or to a judge thereof for judgment.” (§ 489.) In
Bullard
v.
Sherwood
(85 N. Y. 253, at p. 256) Judge Finch, in referring to a similar provision of the Code of Civil Procedure, said: “ The very requirement of an application to the court implies a judicial determination of the proper judgment to be rendered which is not at all controlled by the legal conclusions of the pleader.”
The appellant contends that such testimony cannot be given by a defendant upon an assessment of damages because of the provisions of the Civil Practice Act which control in the matter of pleading. Section 261 provides: “ The answer of the defendant must contain: * * * 2. A statement of any new matter constituting a defense or counterclaim.” Section 262 provides that an answer may state a partial defense and “ Matter tending only to mitigate or reduce damages is a partial defense, within the meaning of this section.” Section 339 reads: “In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages, if they are set forth in the answer, either with or without one or more defenses to the entire cause of action. A defendant, in default for want of an answer, may prove facts of that description upon a reference or inquiry to ascertain the amount of the plaintiff’s damages.”
It is urged that the effect of those provisions is to
prevent the defendant who has failed to set up in an answer as a partial defense
“
matter tending only to mitigate or reduce damages ” from giving testimony thereof, and that, therefore, such testimony is not admissible on an assessment of damages. The rules of pleading embodied in those provisions of the Civil Practice Act are intended to govern when a pleading is served. They have no application upon an assessment of damages taken upon a default for service of an answer except as stated in section 339, which expressly provides that a defendant' in default for an answer in an action for wrong may offer evidence in mitigation or reduction of plaintiff’s damages.
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Htjbbs, J.
The complaint alleges that on April 19, 1926, the plaintiff and defendant entered into a written contract in which it was agreed that the plaintiff was to
have charge of the sales of the defendant at a salary of $12,000 a year for the balance of the year and for the year 1927; that the contract was carried out and the plaintiff was paid according to its terms; that he continued to work until and during the month of June, 1928, but that the $1,000 due for that month’s work had not been paid. It is also alleged that on or about January 12, 1928, the parties entered into a further agreement whereby the defendant agreed to employ the plaintiff for the balance of the year 1928 upon the same terms. On June 30th the defendant discharged the plaintiff and this action is to recover $1,000, the salary earned for the month of June and $6,000 damages for his wrongful discharge.
The defendant being in default in answering moved at Special Term to open the default. The motion was denied and defendant appealed to the Appellate Division. The order of the Special Term was affirmed. The plaintiff then moved at Special Term under section 490 of the Civil Practice Act for an assessment of damages. The motion was granted and the court directed- that the assessment be taken before it at Special Term. The parties appeared and the plaintiff established a
prima facie
case entitling him to a judgment for $7,000. The defendant then offered testimony over the plaintiff’s objection and exception tending to establish that a third party during the month of June before plaintiff’s discharge offered the plaintiff a similar position at the same salary. The plaintiff in his objection specifically pointed out that at the time of the alleged offer of employment, the plaintiff had not been discharged but was still employed under his contract with the defendant. The Special Term sustained the defendant’s contention, refused to award the plaintiff judgment for damages for his wrongful discharge but granted judgment for $1,000 salary for the month of June. Judgment was entered accordingly. The Appellate Division has affirmed the judgment and permission to appeal has been granted by this court.
In an action for damages for wrongful discharge the burden of going forward with the evidence upon an issue in reduction of damages is on the defendant. The testimony offered by the defendant was insufficient to establish any basis for the reduction of plaintiff’s damages. It was indefinite and uncertain and did not tend to establish that plaintiff could have procured similar employment elsewhere for any definite time at any definite salary.
It is urged by the appellant that it is improper, upon an assessment of damages, to receive testimony offered by a defendant to the effect that the plaintiff refused to accept similar employment and thereby reduce bis damages.
The defendant, by failing to answer, admits all traversable allegations contained in the complaint.
(Foster
v.
Smith,
10 Wend. 377; Paine & Duer Practice, vol. 1, p. 635.) An allegation of damage is not, however, a traversable allegation.
(Emery
v.
Baltz,
94 N. Y. 408, at 412.) It is not admitted by a defendant’s failure to answer.
(Hartness
v.
Boyd, 5
Wend. 563;
Howell
v.
Bennett,
74 Hun, 555, at 558;
Thompson
v.
Halbert,
109 N. Y. 329;
Lewis
v.
City Realty Co.,
158 App. Div. 733;
Sutton
v.
Duntley,
205 App. Div. 660.)
Upon an assessment of damages, a defendant who has served a notice of appearance is entitled to notice of the assessment, to appear and cross-examine the plaintiff’s witnesses, and to offer testimony upon the question of damages, not for the purpose of defeating the plaintiff’s cause of action
in toto,
because he has admitted the cause of action by failing to answer and plaintiff is entitled, in any event, to nominal damages. The testimony is competent, however, for the purpose of assisting the court in fixing the real damages suffered by the plaintiff.
(Kerker & Willets
v.
Carter,
1 Hill, 101;
Hartness
v.
Boyd, supra; Wandell
v.
Edwards,
25 Hun, 498; Graham’s Practice, 642.)
Where a summons and complaint is served personally,
and the clerk may enter a default judgment as provided in section 485 of the Civil Practice Act, the clerk must enter it for the amount demanded in the complaint, unless the plaintiff elects to have it entered for a smaller sum. (Civ. Prac. Act, § 487.) In such cases the default admits the cause of action alleged and the amount for which judgment may be entered. If the case is not one where the clerk may enter a default judgment for the amount demanded in the complaint, the plaintiff must “apply to a court or to a judge thereof for judgment.” (§ 489.) In
Bullard
v.
Sherwood
(85 N. Y. 253, at p. 256) Judge Finch, in referring to a similar provision of the Code of Civil Procedure, said: “ The very requirement of an application to the court implies a judicial determination of the proper judgment to be rendered which is not at all controlled by the legal conclusions of the pleader.”
The appellant contends that such testimony cannot be given by a defendant upon an assessment of damages because of the provisions of the Civil Practice Act which control in the matter of pleading. Section 261 provides: “ The answer of the defendant must contain: * * * 2. A statement of any new matter constituting a defense or counterclaim.” Section 262 provides that an answer may state a partial defense and “ Matter tending only to mitigate or reduce damages is a partial defense, within the meaning of this section.” Section 339 reads: “In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages, if they are set forth in the answer, either with or without one or more defenses to the entire cause of action. A defendant, in default for want of an answer, may prove facts of that description upon a reference or inquiry to ascertain the amount of the plaintiff’s damages.”
It is urged that the effect of those provisions is to
prevent the defendant who has failed to set up in an answer as a partial defense
“
matter tending only to mitigate or reduce damages ” from giving testimony thereof, and that, therefore, such testimony is not admissible on an assessment of damages. The rules of pleading embodied in those provisions of the Civil Practice Act are intended to govern when a pleading is served. They have no application upon an assessment of damages taken upon a default for service of an answer except as stated in section 339, which expressly provides that a defendant' in default for an answer in an action for wrong may offer evidence in mitigation or reduction of plaintiff’s damages.
The practice upon an assessment of damages, except as provided in section 339, is governed by the rules of the common law.
(Bossout
v.
R., W. & O. R. R. Co.,
131 N. Y. 37, at 39;
Yaw
v.
Whitmore,
66 App. Div. 317, 321.) The principle which prevents a defendant from offering evidence upon an assessment of. damages in contradiction of material allegations of the complaint is that by failing to answer he has conclusively admitted the plaintiff’s cause of action. To that extent, he is foreclosed from offering testimony. But. by failing to answer he does not admit the plaintiff’s legal conclusion as to damages. He is not, therefore, foreclosed from offering evidence upon that question.
The defendant contends that the plaintiff was required by rule 222 of the Rules of Civil Practice to move at Special Term to vacate or set aside the assessment of damages and that the order made on the motion upon the minutes of the court to set aside the verdict and for a new trial offers no ground for an appeal to this court. This was neither a reference nor a writ of inquiry.
The assessment having been made by the court, the motion was properly made on. its minutes and no court of concurrent jurisdiction could have entertained a motion
to set aside the assessment. The procedure upon an assessment of damages by the court is not specified in the Civil Practice Act and general rules must be held to apply.
(Bossout
v.
R., W. & O. R. R. Co., supra; Yaw
v.
Whitmore, supra; Elsey
v.
International Ry. Co.,
93 App. Div. 115.) While it might be true that this court could not entertain an appeal from the order entered upon the denial of plaintiff’s motion to set aside the verdict if taken independently, an appeal from the judgment brings up for review such order. (Civ. Prac. Act, § 580.)
The judgment is clearly final and it must, therefore, be held that it as well as the order in question may be reviewed by this court.
(City Trust S. D. & S. Co.
v.
American Brewing Co.,
182 N. Y. 285; Civ. Prac: Act, § 588, subd. 5.) The assessment of damages did not involve a discretion on the part of the court in making the assessment as the amount of the plaintiff’s damage was the amount fixed in the contract. The evidence was insufficient to establish any basis for the reduction of plaintiff’s damages which were
prima facie
the salary fixed by the contract of employment.
(Ware Brothers Co.
v.
Cortland Cart & Carriage Co.,
192 N. Y. 439.)
The judgment and order should be reversed and the matter remanded to the Special Term for reassessment of damages in accordance with the determination of this court.