BoswoRTH, J.
The order to assess damages could only be granted on an application for the relief demanded by the complaint. No notice of the application having been given, it is irregular and must be set aside {Code, § 246, subd. 2).
The answer contains no defence; — on a demurrer to it for insufficiency, judgment would be given for the plaintiff. (Laws of 1855, ch. 44; Lane v. Gilbert, 9 How. Pr. R., 150). In such a case the damages would be assessed in the same manner as if no answer had been put in. (Code, § 269).
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The same proceedings may be bad under the Code, on assessing damages on a default to answer, as were allowed under the old practice on executing a writ of inquiry. A defendant may call witnesses and prove any matter which properly goes to mitigate damages. He may of course prove all the facts and circumstances relating to, and any immediate provocation which in the judgment of law tends to mitigate, damages.
The motion for leave to put in the proposed answer is denied.