Dolan v. Petty

The Superior Court of New York City

Dolan v. Petty

6 Sandf. 673

The Superior Court of New York City·Decided October 31, 1851·Published

Opinion

Sandfokd, J.,

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.)

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Sandfokd, J.,

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.)

Dolan v. Petty, 6 Sandf. 673 (N.Y. Super. Ct. 1851).

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