By the Court.*
Emott, J. Further reflection has only in[331] duced me to adhere to the opinion expressed at special term, and upon which this motion was decided, that in an action for the recovery of damages occasioned by the breach of a contract, and which are unliquidated in their amount, the contract itself not being for the payment of money only, but for the performance of various other acts, with or without such payment, the summons should be in' the form given by subdivision 2 of section 129 of the Code, and contain a notice of an application to the court.
This question was presented to the court very soon after the adoption of the Code. In Dibblee a. Mason (1 Code R., 37), Judge Edmonds held, that in an action for goods sold and work and labor done, the summons must give notice that the plaintiff, in default of an answer, would take judgment for a sum certain.
This case has been referred to in subsequent decisions upon the present question, but its bearing is somewhat remote. The action for the price of goods, and the price or value of labor, is directly in form and principle upon a contract, either express or implied, by which the defendant is bound to pay for the goods or the labor, their price or value,—a sum certain by the agreement, or capable of being reduced to certainty by mere calculation from the elements which the agreement contains. The action is, therefore, on the contract, and brought for its performance by the payment of a sum of money, which, by its terms, is required of the defendant. Such a case obviously fulfils the requirements of the definition in the first subdivision of this section of the' Code.
It is clearly an action arising on contract for the recovery of money.
There would be nothing for the court to do, upon an application for judgment, but to order judgment for the amount which the defendant was bound to pay by the terms of his agreement.
In Leopold a. Poppenheimer (1 Code R., 39), Judge IIIshoeffer, of the Common Pleas, held that, in an action for damages for breach of a promise to marry, the summons should give notice, that if the defendant failed to answer, the plaintiff would take judgment for a specified sum. His observations on this part of the case are very brief, and are not, I am obliged to say, satisfactory to my mind.
In Williams a. Miller (4 How. Pr. R., 94), Mr. Justice Hands [332] made a similar decision. But in Flynn a. Hudson River Railroad Co. (6 Ib. 308), that learned judge says that he never felt satisfied with these decisions, and should not regret to see them examined and disapproved. In the latter case (6 Ib. 308), it was held that, in an action against a common carrier of passengers for the value of the baggage of a person carried by them, founded on their common-law liability, and not alleging any negligence, the summons should contain notice of an application for relief. It is true, this decision was put on the ground that the action against a carrier savored of tort, and was founded, in part at least, on negligence presumed or proved. But, as I read the report of that case, no negligence was averred; and, with deference to the experienced judge who decided it, the decision can be sustained, and, I think, satisfactorily, on other grounds.
It may be mentioned here, that the Court of Appeals, in Campbell a. Perkins (4 Seld., 436), have held, that a claim against a carrier for goods lost by him, was a claim arising on contract, so as to be barred by a bankrupt discharge, although • asserted in an action on the case.
I apprehend the learned judge felt embarrassed by the cases of Williams a. Miller and Leopold a. Poppenheimer, which, while he felt dissatisfied with, he did not feel authorized to overrule, or expressly depart from.
The case of Clor a. Mallory (1 Code R., 126), which Judge Harris follows in the opinion I have just mentioned, was, in its circumstances, very similar to the one then before him. But I do not understand it to have been decided altogether upon the same grounds on which he places his opinions in that case. I think that case goes further.
In Clor a. Mallory, the complaint set out that the defendant received, and undertook and agreed to transport, certain goods from Hew York to Buffalo for certain reward, and that they failed to deliver the property. The summons was in the form required by subdivision 1 of the section of the Code which we are considering, and upon receiving no answer the plaintiff took judgment for the sum indicated in his summons. This judgment ■was set aside as irregular, and the form of the summons was held to be wrong.
Judge Johnson, in a well-considered opinion, points out the [333] hardship that would result from the construction contended for by the plaintiffs in that case, as in the present. In addition to the forcible reasons which his opinion contains, it may be suggested that cases might occur where grievous injustice would be done by such practice. Take the case of an action by a female for the breach of promise of marriage, where the excited feelings or fancy of the plaintiff would induce her not only to state, but to swear, to almost any amount of damages. This has been held, and if I am wrong in the construction I have adopted, it undoubtedly is, one of the class described in this section as “ actions on contract for the recovery of money only,” and the plaintiff may therefore give notice in the summons, that if no answer is put in, she will take judgment for the amount claimed as damages in the complaint. How, if the" complaint be verified, and it be true that there was a contract and a breach, and the defendant be too conscientious to deny it under oath, what is he to do ? Is it not very doubtful whether a mere denial of the allegation that the plaintiff is damaged five or ten thousand .dollars, as the case may be, would be good pleading, or would form any issue ? And if such an answer were struck out, or if the defendant wished to be spared the expense and the exposure of a defence and a trial, and therefore made default, the plaintiff must have judgment for the whole amount of damages she claims, without the defendant ever having been allowed any opportunity to try the question of damages in any way. A construction of the Code which would lead to such consequences, if it be according to its letter, cannot be in accordance with its spirit, if its design and effect be what its admirers claim.
Judge Johnson discriminates between actions upon contracts for the payment of money on their face, and another large class of actions for the recovery of damages merely, on account of the non-performance of some stipulation or duty other than the payment of a sum of money, although money only was sought to be recovered as damages. And he says the latter class fall properly under the second subdivision of section 129, where proof of the facts is necessary to enable the court to give judgment.
I think this is the proper distinction, and 'it is sanctioned by the opinion of the late Justice Barculo, in The Cemetery Board of Hyde Park a. Teller ( 8 How. Pr. R., 504). That case was the converse of the present. The action was for damages for [334] the breach of a contract to convey lands, but the damages were liquidated by the contract; and therefore the contract was, in effect, for the payment of the liquidated amount in case of a breach. It was held, therefore, to fall properly under the first subdivision of the section. This was all which was involved in the decision; but the learned judge expresses an emphatic opinion that the first subdivision can only be applied to contracts which, in terms, provide for the payment of money.
The same view seems to-be taken by the Superior Court. In West a. Brewster (1 Duer, 647), Judge Oakley decided, after consultation with all his associates, that in an action against an attorney for an account and payment of moneys collected by him, the summons should conform to. the second subdivision of the section. The chief-justice says, the first subdivision, which we are considering, refers to actions at'law in which, from the nature of the contract, the plaintiff knows and can specify the sum he is entitled to recover.
The phrase “ for the recovery of money only” ought not to be considered as marking a class of cases which are distinguished only from actions brought to compel performance of some specific act or thing, and terminating there. Such a classification evidently would be insufficient. There are many cases where specific relief is to be administered, and yet the ultimate object of the suit is the recovery of money. Such are foreclosure suits, and suits for the administration of assets, and the payment of legacies. These are suits for the recovery of money ' only, and not of any specific thing, and yet requiring specific relief, and an application to the court to obtain ultimately the money for which the suit is brought. These are confessedly included among the actions referred to in the second subdivision. Yet they are actions founded on contract, and brought for the recovery of nothing but money, not of land, nor of chattels, nor any specific right or thing.
The phrase in question must be construed to mean the recovery of a definite sum of money as such, and without calling upon the court to ascertain or adjudge any thing but the existence and terms of the • contract by which it is due. Whenever the action requires the determination of amounts unliquidated, in their nature requiring other proof, and depending upon other considerations than such as appear in the contract itself, then [335] the action is not for the recovery of money only, as money due and' payable by the contract on which the action arises. It is rather an action to establish and ascertain the plaintiff’s right to damages, which are to be paid and satisfied in money. It may be said that this is a refined construction of the statute. Undoubtedly it is, but it is necessary to resort to it to prevent the most absurd as well as iniquitous results.*
[336] That it is the just and proper construction will further appear from an examination of section 246 of the Code, which regulates the manner of giving judgment in case the defendant fails to answer. In all cases included within the general description [337] of actions on contract for the recovery of money only, if the complaint be not sworn to, the clerk, from the examination of the plaintiff nnder oath, or other proof (and such other proof seems only to be required or allowed for the plaintiff’s conve[338] nience, as when he is absent, or the like), is to ascertain, not any of the facts alleged in the complaint, not the extent, or character of the breach or injury complained of, but simply “ the amount which the plaintiff is entitled to recover”—that is, the [339] •amount due by the contract on which the suit is brought. This examination was not supposed or intended to include any thing but a computation of amount; for all the cases where more than this is requisite, were evidently intended to be regulated by the .second subdivision of this section, as cases where the proof of some fact is necessary to enable the court to give judgment. Can it be said that the proof of facts .is not necessary to enable the court to give judgment in a case like the present, brought to recover unliquidated damages for the breach or breaches of an agreement, requiring many specific acts in carrying on a business which was jointly undertaken by the parties ? On the defendant’s default, the contract and its breach and that the plaintiff is entitled to damages, are indeed admitted; but it is impossible that their amount should be stated with precision, or •admitted by a failure to answer, so that the court, acting through its clerk, can justly be said to have before it all the facts necessary to enable it to give judgment. The extent of the injury, or the amount of damages, is matter of judgment, or legal discretion, depending on extrinsic facts. It may be stated first in the complaint in round numbers, according to the claim and opinion of the plaintiff; but it must be determined upon evidence, or the. proof of facts, which cannot be pleaded, but must be exhibited to the court, to enable it to make any clear, not to say just, disposition of the matter.*
I am entirely clear that the rule of the statute is what Judge Harris justly says, in Flynn a. Hudson River Railroad Company (6 How. Pr. R., 308), it ought to be—that where the action is brought for the recovery of a money demand, payable by the contract on- which the action is brought, and certain in amount, or capable of being reduced to a certainty by computation from the terms of the contract, then judgment may be perfected without application to the court. In all other cases, and therefore in all cases like the present—of .claims for unliquidated damages for the breach of specific agreements, not for the payment of money—such application is necessary.
It was urged with much confidence on the argument, that this difficulty was waived by the notice of appearance given by the defendant. It must be confessed, that some of the opinions which have been delivered in cases somewhat similar to this, [340] look that way. But it will be found that these eases were motions to set aside the summons, or all the proceedings; and it is a rule which has always been adhered to, that an appearance to process waives any mere irregularities or formal defects in the-process or its service. If the objection here was to the summons, or the motion necessarily reached to setting that aside, the answer that the defects were waived by a general appearance would be complete. But here the defendant wishes to-treat the summons as regular, and does not object that he has not been sufficiently and formally brought into court, but that the next step of the plaintiff, after obtaining jurisdiction, was a departure from his summons or process. For although the summons and complaint may be served together, as they were in this case, and although in one or two cases they seem to have been regarded as performing together the joint office of commencing a suit, I do not so understand the Code. Suits are to-be commenced by the service of a summons (Gode, § 127), which must be in one of two forms, as it is intended to commence an action belonging to one or the other of two classes.
The complaint, although it may be in fact drawn and served with the summons, is, in order and in legal contemplation, a subsequent step in the procedure. The summons brings the defendant into court, the Complaint states the grievance of the plaintiff and the -remedy he asks. If the complaint varies from the process, there is the same reason and the same right to object to the complaint that there formerly was to set aside a declaration which varied from the writ.* (Ridder a. Whitlock, 12 How. Pr. R., 208, and cases cited.)
[341] The appearance admits the regularity of the summons and its service, but not the identity of the cause of action indicated by the summons with that set out in the complaint. e
Hr. Justice Marvin, in Voorhies a. Scofield (7 How. Pr. R., [342]*34251), concedes that there are cases when a general notice of appearance will not be a waiver of irregularities previously committed, although he inclines to the view taken by Mr. Justice Crippen, in Webb a. Mott (6 How. Pr. R., 439), that the complaint will control the summons when they are served together.
With due respect for these opinions, I think logical consisr tency, as well as the tenor of the Code, requires us to hold otherwise ; and that the views .of Mr. Justice Balcom, in Bidder a. [343] Whitlock (12 How. Pr. R., 208), are more in accordance with both the former and the present practice; and that the summons must control the complaint and indicate the nature of the action.
The order of the special term should he affirmed, with liberty to the plaintiff, if he wishes to bring an action like that indicated by the complaint, and is liable to be encountered with a plea of the statute of limitations in case he discontinues the present suit, to apply at special term to amend his summons.
As the question is embarrassed with conflicting decisions, the defendant should have no costs of this appeal, unless he ultimately succeeds in the action, in which event he may tax ten dollars for such costs as part of his costs of the cause.
“In an action arising on contract, for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer,” &c.
The construction which this case and others in the Supreme Court, cited below, seem now to have established, is, that in an action arising on a contract, express or implied, by which the defendant promised only the payment of money, the plaintiff should insert the notice prescribed by the first subdivision ; and in all other actions, that prescribed by the second. This is now the uniform current of decision in the Supreme Court; and we know of no case to the contrary later than 1849. (Williams a. Miller, 4 How. Pr. R., 94.) The rule in the Superior Court is different, as stated below.
The following are the cases on this question not referred to in the text:—
In an action for goods sold, the complaint contained allegations that the defendant procured the sale to be made by fraudulent representations, inserted apparently under the belief that such facts must be set forth in the complaint to enable the plaintiff to issue execution against the person. And it was held that such an action required a summons under the second subdivision. Seventh District, Sp. T., 1852, Field a. Morse, 7 How. Pr. R., 12.
An action for wrongfully taking personal property requires a summons under the second subdivision. Fifth District, Sp. T., 1852, Voorhies a. Scofield, 7 Ib., 51.
In an action on a contract for the payment of money only, where the defendant had an unexpired credit, and the plaintiff sought to have the credit rescinded on the ground of a fraudulent non-fulfilment by the defendant of a stipulation to give security as well, and to have an immediate judgment for the money agreed to be paid, and interest, it was held that the summons should follow the second subdivision. Fourth District, Sp. T., 1851, Travis a. Tobias, 7 Ib., 90.
In an action to recover a statute penalty, the form prescribed by the first subdivision is to be adopted. The People a. Bennett, Post, 343.
An action for breach of promise of marriage requires a summons under the second subdivision. Sixth District, Sp. T., Dec., 1857, Davis a. Bates, Ante, 15; Second District, Sp. T., Sept., 1857, McNeff a. Short, 14 How. Pr. R., 463,—overruling Williams a. Miller, 4 Ib., 94.
An action against a common carrier, although in form on contract, requires a summons under the second subdivision. Third District, Sp. T., 1852, Hewett a. Howell, 8 Ib., 346.
Johnson a. Paul (Supreme Court, Seventh District, Special Term, August, 1857). This action was for damages for breach of an agreement to convey real property, and the summons was under the first subdivision of section 129. The defendant moved to set aside the complaint for the irregularity.
[336] T. B. Strong, J.—This action belongs to the class embraced in the second subdivision of section 129 of the Code. That subdivision, according to what I think the better construction, includes all actions on contract to recover money as damages, not agreed to be paid, but imposed by law, for a breach of contract.
Actions on contract to recover money agreed to be paid, come within the first subdivision of the section. When a contract is, on one side, to do any specific act other than the payment of money, and on the other to pay money, an action for a breach of the former part, to recover damages, belongs to the second subdivision, but an action for a breach of the latter part belongs to the first subdivision. Implied contracts, equally with express ones, to pay money, are within the first subdivision. This distinction between actions on contract for the breach of a stipulation to do a specific act, and those for the non-payment of money agreed to be paid, although not plainly expressed by the letter of the Code, is, I think, in accordance .with its spirit. In the former case, proof should be made of the actual damages before judgment; and I cannot think that it was intended by the Legislature to dispense with it. This distinction furnishes a clear rule of easy application in practice.
In regard to the other ground of motion, that the plaintiff in the complaint demands a greater sum than that specified in the summons, it is clear that if the defendant should not answer, the plaintiff could not take judgment for more than is named in the summons (§ 275). Whether it is a defect for which the complaint should be set aside, it is not necessary now to determine
The motion must be granted with S10 costs, unless the plaintiff, which- he is ■at liberty to do on payment of said costs, amend the notice in his summons in the particulars referred to.
The case of Dunn a. Bloomingdale, Post, 340, note, which was an action on a false warranty, supports this view.
Kelsey a. Covert (Supreme Court, Seventh District, Special Term, November, 1857). The action was on an undertaking of bail. The summons was under the second subdivision of section 129. Defendant did not serve any formal notice of appearance ; but before the time to answer expired, served notice of a motion, signed by his attorney, as attorney in the action generally. Defendant having failed to answer, plaintiff applied to the court for an order for assessment of damages on a writ of inquiry. The writ was granted and executed, but without notice to the defendant.
The defendant now moved to set aside the assessment and subsequent proceedings as irregular.
Mr. Kershner, for the motion.
A. Sendee, opposed.
T. E. Strong, J.—-The notice in the summons in this action is that prescribed by the second subdivision of section 129 of the Code, that if the defendant shall [337] fail to answer, the plaintiff will apply to the court for the relief demanded in the complaint. It is the proper notice in the case ; as the undertaking of bail, on which the action is founded, is not for the payment of money, but is, that the defendant in the action in which it was given shall, at all times, render himself amenable to the process of the court during the pendency of that action, and to such as might be issued to enforce the judgment therein {Code, § 187). It is stated therein that the bail undertake in a specified sum, but that is to fix an amount beyond which the bail will not be liable ; they do not agree to pay that sum, nor are they liable to pay it, unless the damages from their principal not rendering himself amenable to process shall equal that amount. The extent of liability is those damages. The notice in the first subdivision of section 129, that the plaintiff will taire judgment for a sum specified therein if the defendant fail to answer, is proper only when the action is to enforce a contract for the payment of money.
The case is, therefore, within the second subdivision of section 246, as to proceedings to obtain judgment on default of the defendant to answer; and the court might, as was done on the application of the plaintiff, order the damages to be assessed by a jury.
The damages were thus assessed upon a writ of inquiry, but without the service of any previous notice of the execution of the writ; and for the omission to give such notice, the defendant seeks to have the assessment of damages and subsequent proceedings set aside as irregular. The defendant had, before the expiration of the time to answer, served a notice of motion in the action on the plaintiff’s attorney, signed by an attorney as “ attorney for the defendant J. M. Covert;’’ and this was a sufficient notice of appearance. The plaintiff’s attorney had also recognized and treated the defendant’s attorney as such in~the action.
I am satisfied that notice to the defendant’s attorney of the execution of the writ of inquiry was necessary. Notice, in this case, might not have been of any particular benefit to the defendant; but no distinction can be made between cases governed by the same provision : one general rule must obtain in respect to all actions for assault and battery, slander, &e., as well as actions like the present. It is obviously just that notice should be given in most cases, that the defendant may have an opportunity to be heard as to the damages ; and I cannot think that it is contemplated by any part of the Code that notice may be dispensed with. Tire defendant has a right to appear on the assessment, and mitigate the damages in cases where matter in mitigation exists, in like manner as before the Code. There does not appear to be any express provision in the Code for such notice, but there is nothing inconsistent with it; and I think that under section 469,—provi-ding that the rules and practice in force at the adoption of the Code, where consistent with it, should continue in force, subject to the power of the respective courts to modify, relax, or alter the same,—rule 21 of the rules of 1847, as to this point, is in force, and applicable to the case. By that rule, the same notice, in cases where notice is necessary,—that is, where the defendant has appeared in the action, of executing the writ of inquiry,'—shall be given, as is required on assessment, by the clerk. The object of this provision was to make the practice uniform as to notice in cases of assessments by the clerk, and assessments by [338] jury ; and it will accord with the spirit of the rule to preserve that uniformity by following, as to assessments by jury, the change which has been made in the length of notice of assessment by the clerk.
The motion is granted, and $10 costs are allowed to the prevailing party on motion.
In the Mew York Superior Court a more* literal construction was established by the decision of the court in Croden a. Drew (3 Duer, 652). That action was for breach of a contract to convey real property, and the demand for judgment was “ for damages by reason of the non-fulfilment of. the contract to the amount of S1000—and also for the sum of S300—paid to the defendant on account of the purchase money,” with interest, &c. The summons was in’the form prescribed by the second subdivision of section 129.
The opinion of the court was rendered by
Bosworth, J., who (after adverting to the facts, and showing that the action was one literally arising on contract, and for the recovery of money only), hdd:—■ If this be the correct view of the action, and of what is sought to be recovered in it, the Code is'imperative that the clerk shall ascertain and assess the damages (§ 246, subd. 1). That subdivision contemplates that the clerk shall assess damages in other cases than “on an instrument for the payment of money only.” This is an action for the “ recovery of money only,” within the meaning of those words as used in section 304, subd. 4, section 53, subd. 1, and sections 310, 227, and 253. This case is distinguishable from West a. Brewster (1 Duer, 647). In the latter case there was a prayer for a judgment that the defendant accoiint; and if such a judgment may be had under the Code, then the action was for something besides the recovery of money only, notwithstanding that only was the ultimate result sought to be secured. In West v. Brewster, as the complaint was framed, the costs would probably be in the discretion of the court (Code, §§ 304, 305, 306), and the action would be triable by the court (§§ 253; 254). This action, if put at issue, would necessarily be triable by a jury, unless such a trial was waived, or the action referred. ™ 6 ° ®
There are plausible grounds for construing subdivision 1 of section 129 to mean by “ contract,” as there used, a contract by which a party promises to pay money ; and to refer to actions brought to recover only the money so promised to be paid. The contract need not specify the sum to be paid, nor be written. It would, thus construed, include the class of actions heretofore brought, upon a quantum meruit, for goods sold, services performed, and all other contracts by which a party is bound to pay a sum certain, or what the law on the facts proved deems to be reasonable. » ® ® e But the language of the Code seems too explicit to justify such a construction as last suggested. The plaintiff’s proceedings were therefore irregular.
The summons should follow one form or the other ; it is said that it is irregular to unite both notices. Seventh District, Sp. T., 1854, Baxter a. Arnold, 9 How. Pr. R., 445.
In Baxter a. Arnold (Seventh District, Sp. T., 1854, 9 How. Pr. R., 445), it was held, that as the summons and complaint were there served together, and the defendant could not fail to ascertain with certainty what relief was sought against him in the action, an irregularity in the form of the summons should be disregarded. To similar effect was the following case.
Dunn a. Bloomingdale (Supreme Court, Third District, Special Term, December, 1856). The action was for damages for a breach of warranty on a contract of sale. The summons was under the second subdivision of section 129. The complaint was not served with the summons, but the defendant appeared and demanded a copy of the complaint, and it was then served. The defendant now moved to set aside the complaint, for irregularity in departing from the summons.
Jacob J. Warner, for the motion.
Thomas Smith, opposed.
[341] Harris, J.—I think the plaintiff’s practice has been regular. I certainly should have drawn the summons in the form which has been adopted by the plaintiff’s attorney. The complaint, it is true, sets forth a contract of warranty, but it is, in fact, an action to recover damages. The distinction between an action like this, and one founded on misrepresentation, is very narrow. In each case the object is compensation in damages for deception. In neither case can the action be said to be brought for the recovery of a money demand. The better opinion seems to be that, in all such cases, even though the action may be, in form, upon a contract, application should be made to the court for the appropriate relief. (See Flynn a. The Hudson River Railroad Company, 6 How. Pr. R., 308; The Cemetery Board of Hyde Park a. Teller, 8 Ib., 504.)
But if it were otherwise, this motion ought not to be granted. The office of the summons is to bring the defendant into court, and to apprize him of the pro-ceedings which will be taken against him, in case he fails to answer the complaint. If the action is brought to recover a money demand, the amount is specified, and the defendant is notified that, in case of his default, judgment will be taken •against him for that sum. If the action be for any other cause, the defendant is notified that, in case of his default, application will be made to the court for such relief as the plaintiff may specify in Ms complaint. That relief may be, and frequently is, compensation in damages for-injuries alleged. In such cases the plaintiff, in case the defendant does not answer, recovers, not the amount claimed by him, but such amount as the court, after an assessment of the damages by a jury or otherwise, may see fit to award.
In this case the latter form of summons was adopted. The defendant was apprised that unless he should interpose a defence, the plaintiff would make application for such relief as he should demand in his complaint. Ho complaint was served with the summons, but the defendant appeared and demanded a copy of the complaint, and it was received. By this he wras apprised of the nature and extent of the relief for which the plaintiff would apply, if he should fail to answer. In what way can the defendant be prejudiced by this mode of proceeding ? I confess, I am unable to see. And if he cannot be, he ought not to be heard to complain, even though he may think the summons technically irregular.
Had the plaintiff undertaken to fix the amount of damages for himself by framing his, summons under the first subdivision of the 129th section, as was done in the case of Flynn a. The Hudson Biver Bailroad Company, the case might have been otherwise; then, indeed, the defendant might have been prejudiced by the irregularity. He might have been compelled to interpose a defence, or suffer the plaintiff to take judgment for a larger amount than he was entitled to recover. The defendant in this case has no such ground of complaint. See Voorhies a. Scofield (7 How. Pr. R., 51), where, as in Flynn a. The Hudson River Railroad Company, the summons was framed under the first subdivision of the section, when it should have been under the second.
So in Ridder a. Whitlock (12 Row. Pr. R., 208), the cause of action, as it appeared in the complaint, was a tortious appropriation of the property and money •of Ms principal by an agent, while the summons was for a money demand. The [342] difficulty in the case was, that if the defendant failed to answer, the plaintiffs had-themselves fixed the amount of their recovery. This they were only allowed to-do when the cause of action was a money demand, or a sum ca-tain. The defendant had a right, even though he might not choose to answer, to have the plaintiffs-present their case to the court for relief, and thus, without defence, secure the assessment of the damages to he recovered against him, by a jury. ' The court was right, therefore, in setting aside the complaint, unless the plaintiffs would amend their summons so as to adapt it to the cause of action stated in their complaint.
The only case in which a summons under the second, subdivision of the 129th section has been set aside because it should have been issued under the first subdivision, is that of the Cemetery Board of the Town of Hyde Park a. Teller, above-cited. In that case the action was upon a money demand. The summons should have been under the first subdivisión; and because it was not, the late Mr. Justice Barculo, without much consideration, I think, set it aside. The most that could be said of it is, that it was a harmless error, which it did not concern the defendant to have corrected. So, in this case, if it were conceded that the summons should have been under the first subdivision of the section which prescribes its form, I cannot see why the defendant should take it upon himself to-have the error corrected. '
I think the motion should be denied, with costs.
In Voorhies a. Scofield (Fifth District, Sp. T., 1852, 7 How. Pr. R., 51), it was held,, that where the summons and complaint were served together, if they were incongruous in this respect, the complaint must control, and the summons must be set aside on motion, unless plaintiff elect to amend. This course was followed in' the Cemetery Board of Hyde Park a. Teller (Second District, Sp. T., 1853. 8 How. Pr. R., 504).
In Ridder a. Whitlock (Sixth District, Sp. T., 1856. 12 Ib., 208), followed in the case in our text, it was held, on the contrary, that, according to the analogy- of the old practice, the summons must control in such' a case, and the complaint must be set aside, unless plaintiffs elect to amend. This course was followed in Davis a. Bates (Ante, 15).
In Croden v. Drew (N. Y. Superior Court, April, 1854, 3 Duer, 652, cited Ante), the plaintiff took judgment upon failure to answer, the defendant not having appeared, and, on motion of the defendant, the judgment and execution were set aside, because the summons was held to be in the wrong form, although in that case the summons and complaint had been served together. The terms on which the motion was granted included leave to the defendant to answer or demur to* the complaint in ten days, and leave to the plaintiff to amend his summons.