
    NORTON a. CARY.
    
      Supreme Court, Fourth District; Special Term,
    August, 1862.
    Form of Summons.—Defabtdbe of Complaint.—Amendment.
    The summonsdn the form prescribed by subdivision 1 of section 129 of the Code, is proper only where the action is upon contract, for the recovery of a sum of money as such, without calling upon the court to ascertain or adjudge any thing but the existence and terms of the contract by which it is due.
    In an action to recover both liquidated and unliquidated damages for breaches of contract, the summons should follow the second subdivision.
    On a motion to set aside a complaint for departing from the summons in respect to the demand, the court should allow the plaintiff to amend the summons on terms, and to retain the complaint.
    
      Motion to set aside the complaint.
    This action was brought by C. F. Norton against Cary & Salisbury. The facts relied upon, as causes of action, are stated in the opinion.
    
      A. B. Durant, for the motion.
    
      H. S. Johnson, opposed.
   Bockes, J.

Motion to set aside the complaint, on the ground of variance or departure from the summons.

The summons is framed under subdivision 1 of section 129 of the Code, which must be followed by a complaint in an action arising on contract for the recovery of money only.

The complaint contains two counts, or separate causes of action—both founded on contract. The first charges an indebtedness of $292.22 against the defendants for lumber sold by them as plaintiff’s agents or consignees; the second sets up a contract between the parties, by which, as is alleged, the defendants agreed to receive lumber from the plaintiff on consignment, and to dock, store, insure, and sell the same, and make advances to the plaintiff thereon; and it is charged, that although the plaintiff performed the agreement on his part, yet the defendants refused to receive the lumber, or in any way to perform on their part, whereby the plaintiff was damaged two thousand dollars.

As regards the last count, the complaint is not in conformity with the summons, if we regard the decisions in Cobb a. Dunkin (19 How. Pr., 164), and in Tuttle a. Smith (6 Abbotts' Pr., 329; S. C., 14 How. Pr., 395), as binding. Those are general-term decisions, in the latter of which we have an elaborate and very satisfactory opinion by Mr. Justice Emott. For myself, I am entirely satisfied to adopt his reasoning and conclusion. (See, also, 14 How. Pr., 454.) It must now be deemed settled on authority, that in an action on contract, where the damages sought to be recovered are unliquidated or are incapable of being reduced to certainty by mere calculation from the elements which the agreement contains, the sunraions should be framed under subdivision 2 of section 129.

It is said that this construction will prevent a joinder of causes of action as authorized by section 167. But this result does not follow. The plaintiff may unite in the same complaint several causes of action, when they all arise out of contract, express or implied; but if under either count unliquidated damages are sought to be recovered, the summons in the action should be framed under subdivision 2 of section 129. The summons will issue, pursuant to subdivision 1, in case the action be on contract, and be exclusively or only for the recovery of a definite sum or definite sums of money as such, and without calling upon the court to ascertain or adjudge any thing but the existence and terms of the contract by which it is due. “ In other actions,” the summons will issue, pursuant to subdivision 2 ; among which “ other actions” will fall those on contract wherein the plaintiff unites in the same complaint several causes of action, some of which are by the contract for a fixed and definite sum, and others for unliquidated damages. Thus construed, sections 129 and 167 are in entire harmony. If the action be on a promissory note or money-bond, or on both, or on several promissory notes or on several money-bonds, the summons should issue pursuant to subdivision 1. If on a promissory note or money-bond, and, also, by separate count to recover unliquidated damages for breach of contract, it should issue pursuant to subdivision 2; for in the latter case, the action being for a fixed sum, and also for unliquidated damages, is not embraced in the class designated in subdivision 1, which, according to the decisions cited, applies only and exclusively to actions on contract for the recovery of a sum made certain by the contract or contracts counted on.

In this case the plaintiff has united in his complaint two causes of action, both arising out of contract: one of which is for the recovery of a sum made definite by the terms of the alleged agreement; the other, for unliquidated damages. The action is for these two causes ; and inasmuch as unliquidated damages are sought to be recovered, it is an action other than those specified in subdivision 1, as construed and limited by the decision in Tuttle a. Smith. There is no misjoinder of causes of action. The plaintiff was authorized by section 167 to unite them in the same complaint, inasmuch as each is a cause of action arising out of contract, but in such case, one being for the recovery of liquidated, and the other for unliquidated damages, the summons should have been framed under subdivision 2. It is suggested that both causes of action arise out of the same transaction. It does not so appear from the complaint, and the pleading must control in this regard. But, suppose they do so arise, or suppose the complaint was in a narrative form, stating the facts in detail, and showing a claim or indebtedness for $292.22 for lumber sold, and also, a large claim for damages, under the same contract, for not receiving, docking, storing, or insuring lumber, still the action would be for unliquidated damages, in whole or in part, in which case the summons should issue under subdivision 2. In any view, it must be held that the complaint is not in conformity to the summons. If the plaintiff desire to retain his complaint in its present form, he must amend his summons. This would be pretty much a matter of course on proper application for that purpose: Indeed, I think, I ought to allow it now, as an alternative on this motion. I will, therefore, direct that the complaint be made to conform to the summons, by striking therefrom the second cause of action therein stated, and that the complaint stand so corrected or amended, without the service of any other or amended complaint, unless the plaintiff, within ten days after the entry of this order, serve on the defendant’s attorney, Mr. Allen, a new summons containing a notice, as required by subdivision 2 of section 129, in which case the complaint already served is to stand as the complaint herqin.

The question of practice raised by this motion is new. It is different on the facts, although similar in principle to that decided in Tuttle a. Smith, and in Cobb a. Dunkin. Indeed there is yet a diversity of opinion in regard to it. Judge Welles dissented in the last case cited, which, I believe, is the last reported case in which the question is considered. I am not aware that it has been up at all in this district. No costs of motion should consequently be allowed, unless the plaintiff elect to serve a new summons, in which case he must pay $7 for the privilege.  