Majority
p. 378LULING a. STANTON. New York Common Pleas ; Special Term, January, 1859.
Headnote
Action aeising on Contbaot, foe becoveey of Money only.— Fobm of Summons.The provision of subdivision I of section 129 of the Code—which prescribes the form of the notice to be contained in a summons, in an action arising on contract for the recovery of money only—is to be applied only to contracts which, in terms, provide for the payment of money.
In an action to recover unliquidated damages for breach of a contract, the sum
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mons should contain the notice prescribed by subdivision 2, viz., that the plaintiff will apply to the court for the relief demanded by the complaint.[1]
Motion to set aside complaint for irregularity.
The complaint alleged that defendants agreed with plaintiff to take a shipment of three hundred hogsheads of tobacco, to be carried from blew York to Bremen; that defendants failed to comply with the agreement on their part, by which plaintiff was put to expenses (specified in the complaint) in the storage of the tobacco and insurance, while waiting for another ship, loss of interest, &c. The complaint averred damages “ in the sum of one thousand dollars, with interest,” and demanded judgment for that amount.
The summons stated that if the defendant failed to answer the complaint, the plaintiff would apply to the court for the relief demanded.
The defendant now moved to set aside the complaint for irregularity, in departing from the summons in this respect, as stating a cause of action which could only be pleaded under a summons with the other form of notice.
B. F. Mudgett, for the motion.
Lane & Raelker, opposed.
The summons in this action is in the proper form. The action against a common carrier is usually an action for a wrong, and not strictly upon contract (per Taggart, J., Campbell a. Perkins, 4 Seld., 430), and the claim made is composed of unliquidated damages. Such is the case here. The plaintiff states his damages distinctly and definitely, and asks judgment for the aggregate sum. It is his own estimate, however, and it is not provided for by the contract. The first subdivision of section 129 relates to contracts which in terms provide for the payment of money. This was the view of the late Justice Barculo (The Cemetery Board of Hyde Park a. Teller, 8 How. Pr. R., 505), and, in my opinion, is the true interpretation of the statute.
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The following cases sustain the opinion expressed of the proper form of the summons herein. (Tuttle a. Smith, 6 Abbotts’ Pr. R., 329 ; S. C., 14 How. Pr. R., 395 ; Dunn a. Bloomingdale, 14 How. Pr. R., 475; S. C., 6 Abbotts’ Pr. R., 340, note; McNeff a. Short, 14 How. Pr. R., 463 ; Clor a. Mallory, 1 Code R., 126; Flyn a. Hudson River Railroad Company, 6 How. Pr. R., 310.) The motion is therefore denied, but without costs, the authorities being somewhat in conflict on the question.