29 How. Pr. 385 | N.Y. Sup. Ct. | 1865
The summons in this case contains the notice prescribed in subdivision No! 2, of section 129 of the Code, stating that if the defendant fails to answer, the plaintiff will apply to the court for the relief demanded by the complaint. This is the proper form of the notice to be inserted in the summons in all cases when the action is not upon a money demand or obligation for the payment of money, when the damages can be ascertained by a simple computation of interest. In all casés. where the damages are to be proved or assessed upon evidence or extrinsic facts, aside from the contract sued upon, the notice must be under the second subdivision of the section. The cause of action set out in the complaint in this action belongs 'to this last class. The damages can only be ascertained or assessed by proof of a variety of facts. If no answer were put in to this complaint it would be irregular to enter up a judgment without an assessment of damages, and this would have been so if the notice in the complaint had been under the first subdivision of section 129 (Cobh agt. Dunlciji, 14 How. 164, and Tuttle agt. Smith, Id. 395).. The summons, therefore, is in the right form. The complaint so far as it relates to the cause of action set out in it, conforms to the summons.. But in the prayer the complaint demands judgment for a specific-sum
■ In this case the special prayer, I think, is inapt under the complaint. The cause of action is for an account as between partners, and is essentially an action in equity. The plaintiff avers that the defendant is liable to him as copartner, in the sum of $404.70, and the prayer is that he may have judgment for that sum, with costs, and for further or other relief. The prayer is an appropriate one in actions at law, as for a balance struck or amount liquidated, which is not averred, but I do not think I can set aside the complaint for this reason. A good cause of action is set out in the complaint, and the court can give a proper judgment upon it under the prayer for general relief. The case is very much like that of Emory agt. Pease (24 N. Y. 62). That was a case like this, between partners, and there was no averment that an account had been taken or balance struck. The plaintiff demanded judgment in the complaint for. a particular sum, $6,544.62, and interest. At the circuit the complaint was dismissed, the judge holding that the plaintiff should have brought his action for an accounting. The court of appeals reversed the judgment, Judge Comstock saying: “ that relief was now to be given consistent with the facts stated, although it was not the relief specifically demanded.” He said, also, that a suit does not now fail because the plaintiff has made a mistake as to the form of the remedy. (See also The New York Ice Co. agt. The Northwestern Insurance Co. 25 N. Y. 358.) There is, also, coupled with this motion, a notice to strike out the prayer for general relief. I do not think this part of the motion should be granted. I do not see why a plaintiff
The motion must, therefore, be denied, but as the plaintiff’s attorney proposes to amend, and waived costs, without costs.