3 Duer 652 | The Superior Court of New York City | 1854
This is an action arising on contract. It is an action to recover money only. BTo judgment is prayed, except for the recovery of two sums, one of §1,000 and one of $300, and interest. Eb relief beyond that is sought.
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, sub. 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 § 304, sub. 4, and § 53, sub. 1, § 310, § 227, and § 253.
This case is distinguishable from West v. Brewster, 1 Duer S. C. R., p. 647. In the latter case there was a prayer for a judgment that the defendant account, 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). Tiiis action, if put at issue, would necessarily be triable by a jury, unless such a trial was waived, or the action was referred.
I think the form of the summons erroneous. If correct in this view, this is an action in which the Code requires that the damages, if any assessment was necessary, should have been assessed by the clerk, and it was irregular to enter a judgment otherwise than as authorized by the Code. Still I think there are plausible grounds for construing sub. 1 of § 129, to mean by “ contract,” as there used, a contract by which a party promises to pay money, and to refer to actions brought
Even the latter construction would give the clerk the power to assess damages in a much larger class of cases, than was allowable by the pre-existing law. (2 R. S. 356, § 2; Code, § 246, sub. 1.)
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 defendant, on stipulating not to bring any action by reason of the levy of the execution, may have an order setting it aside, and vacating the judgment, with liberty to answer or demur to the complaint in ten days, and the order must provide that the plaintiff be at liberty to amend his summons and notice the cause for trial for the next May term. The terms of this order are fixed upon the basis, that the plaintiff’s attorney is irregular, but not so palpably so, that he ought to be subjected to any costs from which the court can exempt a party, whose proceedings, though irregular, have been taken in good faith. Whether the complaint does or does not state facts sufficient to constitute a cause of action, is a question which does not affect the regularity of the proceedings in entering the judgment, and will not be decided on this motion. (The other judges, on consultation, concurred.)