Luling v. Stanton

Beady, J. The summons in this action is in the proper form. The action against a common carrier is usually an action for a wrong, and not strictly upon contract (per Taggart, J., Campbell a. Perkins, 4 Seld., 430), and the claim made is composed of unliquidated damages. Such is the case here. The plaintiff states his damages distinctly and definitely, and asks judgment for the aggregate sum. It is his own estimate, however, and it is not provided for by the contract. The first subdivision of section 129 relates to contracts which in terms provide for the payment of money. This was the view of the late Justice Barculo (The Cemetery Board of Hyde Park a. Teller, 8 How. Pr. R., 505), and, in my opinion, is the true interpretation of the statute. 380 The following cases sustain the opinion expressed of the proper form of the summons herein. (Tuttle a. Smith, 6 Abbotts’ Pr. R., 329 ; S. C., 14 How. Pr. R., 395 ; Dunn a. Bloomingdale, 14 How. Pr. R., 475; S. C., 6 Abbotts’ Pr. R., 340, note; McNeff a. Short, 14 How. Pr. R., 463 ; Clor a. Mallory, 1 Code R., 126; Flyn a. Hudson River Railroad Company, 6 How. Pr. R., 310.) The motion is therefore denied, but without costs, the authorities being somewhat in conflict on the question.