
    SUPREME COURT.
    Trapp Jr. and another agt. The N. Y. and Erie Rail Road Co.
    An action to recover damages for the breach of a special contract, comes within the 1st sub. of §129 of the Code, and is essentially an action for the recovery of money only. (This agrees with the decision in Williams agt. Miller, 4 Sow. Pr. R. 94).
    
      Tompkins Special Term, November 1851.
    J. Morris, for the Motion.
    
    Ferris & Cushing, Contra.
    
   Shankland, Justice.

This motion is to dismiss the complaint, on the ground that it does not correspond with the summons,1 or rather, that the notice inserted in the summons is not authorized by the 1st subdivision of the 129th section of the Code, because the complaint does not set forth a cause of action arising on contract for the recovery of money only, but is for the recovery of damages for a breach of contract for the non-delivery of a machine sent by the cars of the defendant on the rail road. But the defendant’s counsel mistakes the true construction of the 129th section by reading the first subdivision, as if it said in an action arising on contract for the payment of money only,” instead of “ for the recovery of money only,” as it does read. It is true, this action is for a breach of a special contract, but nevertheless it seeks the recovery of money only, and not any other relief. The case of Williams agt. Miller (4 Howard 94), was correctly decided. This construction is strengthened by the words of § 246, subdivision one, in respect of judgments, on failure to answer.

In actions arising on contract for the recovery of money only, if the complaint is verified, the plaintiff takes judgment for the amount demanded in his summons. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk is to assess the amount on its production to him, and in other cases (that is, where the complaint is not sworn to, and is not on a written instrument) the clerk must ascertain the amount of the recovery from the plaintiff’s examination on oath, or other proof. Where the complaint is verified, the plaintiff is entitled to a judgment for the amount demanded therein, whether the action is founded on a written instrument or on an unwritten contract, provided the plaintiff seeks to recover money only. The clerk assesses the damages in both cases; but the nature and character of the proof before him, is governed by the fact, whether the action is on a written or unwritten contract.

This motion must be denied with ten dollars costs.  