14 How. Pr. 474 | N.Y. Sup. Ct. | 1856
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,
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 apprise him of the proceedings 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 his 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. No complaint was served with the summons, but the defendant appeared and demanded a copy of the complaint, and it was received. By this he was 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.
So, in Ridder agt. Whitlock, (12 How. 208,) the cause of action, as it appeared in the complaint, was a tortious appropriation of the property and money of his principal by an agent, while the summons was for a money demand. The 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 certain. 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 be 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 agt. Teller, above cited. In that case the action was upon a money demand. The summons'should have been under the first subdivision, and because it was not, the late Mr. Justice Babculo, without much consideration, I think, set it aside. The most that could be said of it is, that it was a harmless n-ror, which it did not con
I think the motion should be denied, with costs. «