Garrison v. Carr

34 How. Pr. 187

Opinion

Van Vorst, J.

The summons in this action is under the first subdivision of section 129 of the Code, and demands judgment for a sum certain. The complaint, it is true, discloses a cause of action u arising on contract,” but not “ for the recovery of money only.” The amount sought to be recovered is not fixed or liquidated by the terms of the instrument. They are yet to be ascertained, and will require proof outside of the contract to establish them.

The summons must control, and as it indicates an action arising on contract for the recovery of money only, the complaint to be regular should correspond with it.

But I think that the defendant must be held to have accepted the' complaint as it is, and to have waived the objection of its non-conformity to the summons. He has obtained an extension of time to answer, and this is an admission that the complaint was to be answered. (Bowman agt. Sheldon, 5 Sandf. 662.)

It is too late for him to raise the objection now. He should have moved promptly if he meant to have insisted on this irregularity, and not have sought the favor of an extension of time to answer, and use it for the purpose of this motion.

Motion denied, but without costs.