Garrison v. Carr , 3 Abb. Pr. 266 ( 1867 )

Van Vorst, J.

The summons in this action is ■under subdivision 1, of section 129 of the Code, and demands judgment for a sum certain.

The complaint, it is true, discloses a cause of action “ arising on contract,” but not for the recovery of money only.

The amount sought to be recovered is not fixed or liquidated by the terms of the contract for a breach of the conditions of which this action is brought. Whether there are any damages, and their amount, are yet to be ascertained, and will require proof outside of the contract to establish them.

The summons must control, and as it indicates an action arising “ on .contract for the recovery of money only,” the complaint, to be regular, should correspond with it. (Tuttle v. Smith, 14 How. Pr., 395).

But I think that the defendant must be held to have accepted the complaint as it is, and to have waived the objection of its non-conformity to the summons. He has obtained an extension of the time to answer, and this should be held as an admission that the complaint was to be answered (Bowman v. Sheldon, 5 Sand., 662). It is too late for him to raise that objection now. He should have moved promptly if he meant to have insisted on this irregularity, and not have sought the favor of an extension to answer, and use it for the purpose of this motion.

Motion denied; but without costs to either party,