McMullin v. Mackey — 25 N.Y. St. Rep. 265

Majority

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James L. McMullin, Resp’t, v. John Mackey, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 20, 1889.)

Headnote

Justice’s court—Laws 1881, Chap. 414.

Plaintiff left with defendant certain goods at an agreed price for sal?, the proceeds on the unsold goods to be delivered on demand. Defendant having refused to deliver either goods or money on demand, action was brought for the agreed price. A verified complaint was served with the summons, the constable’s return stating that he delivered copies to defendant. The justice entered judgment by default under chapter 414, Laws 1881, without further proof. Held, error.

Appeal from the judgment of the county court of Jefferson county, affirming a judgment in justice’s court entered in favor of plaintiff upon default of defendant for $15, besides costs.

The complaint before the justice was in writing and verified, and after the title, was as follows:

“The plaintiff for cause of action against the defendant alleges, that the defendant above named is a resident of the city of Watertown, was engaged in the business of keeping a hotel. That, heretofore, on or about March 7, 1887, the plaintiff left with defendant a quantity of cigars, at the agreed price of fifteen dollars ($15.00), to be sold by defendant for plaintiff, and the money received therefor was to be handed over to plaintiff on demand. If any cigars remained unsold when plaintiff made demand forsuch money on sales of cigars, as aforesaid, then defendant agreed to turn over to plaintiff all said cigars remaining unsold. That about the 15th day of May, 1887, this plaintiff at the residence of this defendant in the city of Watertown, ¿7. Y., duly demanded of the defendant the money received by him for cigars sold belonging to plaintiff, and at the same time plaintiff demanded of the defendant the return to plaintiff of all the cigars so had by defendant from plaintiff, then remaining unsold. That said defendant did not comply with plaintiff’s said demand, did not pay over said

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money so received on said sales of cigars, did not return said cigars remaining unsold, and neglected and refused to pay to plaintiff any moneys whatsoever on said sales or return any part of cigars' so had.

“Wherefore, plaintiff demands judgment for fifteen dollars damages, and costs of this action.

“ JAMES L. MoMULLIN,

“Plaintiff.”

E. Q. Emerson, for app’lt; E. P. Webb, for resp’t.

The judgment in justice’s court was entered upon default of defendant and without further proof than that furnished by the verified complaint. This was not sufficient under section 2891 of the Code, which provides that if a defendant fails to appear and answer, the plaintiff cannot recover without proving his case. It is however claimed by the plaintiff that the judgment was authorized by the provisions of chapter 414 of the Laws of 1881 and that is the question upon this appeal.

By section 1 of that act it is provided that in any action brought in justices’court “arising on contract for the recovery of money only, or on account, the plaintiff or his agent, at or before the time of the issuing of the summons, may make a written complaint stating in a plain, concise manner the facts constituting the cause of action, specifying therein the amount actually due from the defendant to the plaintiff in said action, and praying judgment against the said defendant for the amount so claimed to be due to him, which said complaint shall be subscribed by the plaintiff or his agent, and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. Said summons and complaint shall be attached and served upon the defendant by delivering to and leaving with him, personally, true copies thereof, not less than six nor more than twelve days before the return day thereof, and the official certificate of the constable making such service shall be sufficient evidence thereof.”

By section 3 of that act it is provided that “in case the' defendant fails to answer or demur to said complaint, as herein provided, at the time of the return of said summons, he shall be deemed to have admitted the allegations of the complaint as true, and the court shall, upon filing the summons and complaint, with due proof of the service thereof, enter judgment for the said plaintiff and against the defendant, for the amount demanded, in such complaint, with costs, without further proof.”

It is claimed by the defendant that this statute does not apply upon the grounds, (1) that the action is not on contract for the recovery of money only, or on, account, (2) that the complaint does not specify the amount actually due from the defendant to the plaintiff, (3) that the summons and complaint were not served as required by the act, the

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certificate of service by the constable being that he served “the within summons and complaint on the defendant, John Mackey, on the 1st day of June, 1887, at the city of Watertown, by delivering to him a copy thereof.”

The complaint is, I think, substantially on contract for the recovery of money only. The property was left with defendant “at the agreed price of fifteen dollars,” to be sold by defendant for plaintiff, and the money received therefor to be handed to plaintiff on demand, and if, when the demand was made, any of the property remained unsold, that was to be returned. Upon demand, neither money or property was returned. The plaintiff then had a right to treat the whole property as sold and look to the defendant for the agreed price. That is what he in his complaint in substance does. It is not a case for the recovery of unliquidated damages, which, under the old Code, section 129, was held to be not for the recovery of money only (1 Wait’s Pr., 478, and cases cited). The amount of the recovery is fixed and liquidated by the agreed price named in the contract.

In Cemetery Board v. Teller ( 8 How., 504 ) it was held that an action to recover the amount specified as liquidated damages in a contract to convey lands was an action on contract for the recovery of money only. A stronger rule was held in Croden v. Drew ( 3 Duer, 652 ). The fact that demand must first be made would not change the rule (Goff v. Edgerton, 18 Abb., 381 ). The amount actually due is in effect "stated in the complaint by its statement of the agreed price and that no part had been paid.

The third ground taken by defendant is more troublesome.

The proof of service of the papers did not show that the copies delivered to defendant were left with him. The statute required this. The certificate of service as made by the constable would have been sufficient under the Code, section 2878, but the statute of 1881 specifically required more. We have no right to assume that the addition so required is not material. It is the duty of the plaintiff to bring himself within the statute. The courts have construed it strictly. Oulman v. Schmidt, 35 Hun, 345 ; Thomas v. Jones, 47 id., 81. The certificate of the constable is made sufficient evidence of the service, but the certificate must show a service in the manner required. A constable in his return is bound to state the manner of service. Code, § 2885. We therefore cannot infer that he did anything more than he has stated in his return. In Wilkinson v. Bayley ( 71 Wis., 131 ), under a similar statutory provision it was held that the court acquired no jurisdiction to render judgment by default, where the affidavit of service failed to show that a copy of the summons was left with as well as delivered to the defendant. Ho case in this state is cited on the subject. The defect is not a mere technical

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one. The record does not show such service as the law requires in order to allow a judgment to be taken without further proof than the verified complaint.

Upon this ground the judgment of the county court and of the justice’s court must be reversed, with costs.

Hardin, P. J., concurs in result.

I do not think this an action on contract for the recovery of money only, or an action on an account, within the intent and meaning of chapter 414, Laws 1881. Hence the justice’s judgment was unauthorised. Upon that ground I concur in the result of the opinion of Merwin, J., rather than upon the ground of the insufficiency of the constable’s certificate of service.