In making the order appealed from the Special Term justice follows the settled practice of this court. Where a summons is served with a notice but no verified complaint served,., the practice here is to apply to the Special Term for leave to enter, judgment. We think that it was not necessary .in this, instance to appoint a referee to determine the amount of damage. ,
The clerk may do so, nor do- we think that costs should have been allowed. Therefore, the order must be modified by striking therefrom the costs allowed, also the provision for appointing a referee, and as -so modified, the order is affirmed, without costs Or disbursements to either party. Of course the plaintiff’s attorney will credit on the issuance of the execution the amount received herein (by the client.
Present: Fitzsím'ons, Oh. J.',. and McCarthy, J.
Order modified, and' as modified affirmed, without costs.