Luling v. Stanton

New York Court of Common Pleas

Luling v. Stanton

8 Abb. Pr. 378, 2 Hilt. 538

CourtNew York Court of Common Pleas

DecidedJanuary 15, 1859

StatusPublished

Cited by1 cases

This text of 8 Abb. Pr. 378 (Luling v. Stanton) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Luling v. Stanton, 8 Abb. Pr. 378, 2 Hilt. 538 (N.Y. Super. Ct. 1859).

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Opinion

Beady, J.

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. [380]*380The 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.

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Beady, J.

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. [380]*380The 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.

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Bluebook (online)

8 Abb. Pr. 378, 2 Hilt. 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luling-v-stanton-nyctcompl-1859.

Opinion

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