Dolan v. Petty — 6 N.Y. Super. Ct. 673

Majority

p. 673

Dolan v. Petty and Mullins.

Headnote

The court will not make an order for payment, under the last clause of the fifth subdivision of section 244 of the code as amended in 1851, unless the answer admits a specific sum to be due.

Such au admission is not made by an answer which traverses the plaintiff’s claim, and adds that he is not entitled to more than a sum named, less than that in the complaint.

The court cannot send to a sheriff’s jury for trial, a cause in which there is an issue of fact.

October 31, 1851.

Complaint for work, labor, and services, in making certain militia uniforms at seventeen dollars each-. The answer traversed the plaintiff’s claim as stated, and then set forth that the clothes made were not worth more than twelve dollars each. The plaintiff thereupon moved for an order that the defendants satisfy the plaintiff’s claim to the extent of $12 for .each-uniform, and that a writ of inquiry be executed before the sheriff and a jury with respect to the residue of the claim.

B. H. Morris, for the plaintiff.

li. L. Clinton, for the defendants.

with the concurrence of all the justices, denied the motion. He said, the court will not make an order under the last clause of subdivision fifth of section 244 of the code as amended in July, 1851, unless the answer clearly admit a specific amount to be due. Here the defendants do not distinctly admit any sum to be due. They deny the claim made, which was for an agreed price, and say the work was not worth more than a less price named. We feel impelled'to be strict and guarded in making orders under this stringent remedy.

As to the writ of inquiry, the court has no authority to send an issue of fact to be tried by a sheriff’s jury. (Code, § 252.)