
    SUPREME COURT.
    Ambrose Young agt. Russel Allyn.
    
      Seventh District,
    
    
      June Special Term, 1873.
    In an action intended to he for fraud, and the summons is for relief, the plaintiff hy his complaint on a promissory note only is entitled to tho same costs only as if he had properly commenced his action hy summons for money where the defendant fails to answer.
    The plaintiff, intending to bring an action for false and fraudulent representations, issued a summons for relief under subdivision 2 of section 129 of the Code, but, after appearance by the defendant, complained upon a promissory note. He recovered judgment, and, upon the taxation of his costs, the clerk of Ontario county, against the objection of the defendant, allowed twenty-five dollars for proceedings before notice of trial. The defendant moves to reduce the amount so allowed to fifteen dollars.
    H. R. Dureee, for the motion.
    
    I. The amount of costs to be allowed the plaintiff for proceedings before notice of trial depends upon the nature of the action, and not on the form of the summons (Code, § 307; Pardee agt. Schenck, 11 How. Pr. R., 500).
    II. A summons for relief is proper in any case, ahd without variance a plaintiff may set out any cause of action (Hewson agt. Decker, 29 How. Pr. R., 385). But the form of the summons does not and cannot confer any additional rights on the plaintiff (McCoun agt. N. Y. C. and H. R. R. R. Co., 50 N. Y., 176; Cobb agt. Dunkin, 19 How. Pr. R., 164; Brown agt. Eaton, 37 id., 325).
    
      III. The right to costs is a substantial right, and an order affecting it is appealable (Burhans agt. Tibbitts, 7 How. Pr. R., 75; Utter agt. Gifford, 25 id., 289). But the form of the summons does not affect a substantial right (McCoun agt. N. Y. C. and H. R. R. R. Co., supra). The form of the summons cannot, therefore, affect the right to costs.
    D. Herron, against the motion, cited Code, § 307, Hewson agt. Decker (29 How. Pr. R., 385), and claimed that the plaintiff in a summons for relief is obliged to apply to the court for judgment, and is therefore entitled to twenty-five dollars costs for proceedings before notice of trial.
   J. C. Smith, J.

Where a party commences an action on a money demand for a specified sum by summons for relief, and thus voluntarily and unnecessarily puts himself in a position where he must apply to the court for judgment on the defendant’s failure to answer, he is entitled to the same costs only as if he had properly commenced his action by summons for money.

Motion granted.  