Goff v. Edgerton — 18 Abb. Pr. 381

Majority

p. 381

GOFF a. EDGERTON.

Supreme Court, First District ;

Chambers, November, 1864.

Headnote

Practice.—Variance between Summons and Complaint.

A complaint setting forth a conversion of money deposited with the defendant, hy him, and demanding the amount of such money, is not variant from a summons for a money-demand on contract.

Motion to strike out the complaint..

This action was brought by William B. Goff against George

p. 382

M. Egerton and others. The complaint alleged that the plaintiff had deposited a sum of money with the defendants, which the defendants had converted to their own use, and which the plaintiff demanded. The summons was in the ordinary form for the money, and that in default of answer, the plaintiff would take judgment for the amount ■ thereof, with interest, &c. The defendant procured an order to show cause- why the complaint should not be stricken out as variant from the summons.

H. F. Pultz, for the motion.

J. W. Robertson, opposed.

It was objectionable to proceed by an order . to show cause, instead of a notice of motion.

The complaint does not vary from the summons. It claims a sum of money as deposited with the defendants, and the allegation that defendants used it does not prevent the plaintiff from asking payment of the money. . It is a mere statement of what the defendants did with the money after he got it, but does not prevent the plaintiff from treating the claim as matter of contract. In fact, the complaint shows that, by asking relief by judgment for the amount and interest.

The case in 7 How. Pr., 12 , was one where the complaint contained allegations .of fraud as to the contracting the debt which there were thought necessary to hold to bail. But since then a different construction has been adopted.

Motion denied, with $10 costs.