It was objectionable to proceed by an order . to show cause, instead of a notice of motion.
The complaint does not vary from the summons. It claims a sum of money as deposited with the defendants, and the allegation that defendants used it does not prevent the plaintiff from asking payment of the money. . It is a mere statement of what the defendants did with the money after he got it, but does not prevent the plaintiff from treating the claim as matter of contract. In fact, the complaint shows that, by asking relief by judgment for the amount and interest.
The case in 7 How. Pr., 12, was one where the complaint contained allegations .of fraud as to the contracting the debt which there were thought necessary to hold to bail. But since then a different construction has been adopted.
Motion denied, with $10 costs.