Cobb v. Dunkin , 19 How. Pr. 164 ( 1859 )

By the court—E. Darwin Smith, Justice.

The question presented upon this appeal is simply whether it was regular for the plaintiff to take judgment without having his damages assessed by the clerk or by a jury. The notice in the summons was in the form prescribed in sub-division No. 1 of section 129 of the Code, and judgment was taken for the sum therein demanded. The actipn is brought, not to recover a specific .sum of money due or payable upon an express or implied contract, but to recover damages for the non-performance of the covenants contained in a lease to work and till á farm in a good and workmanlike manner. The question briefly stated is, whether such an action is brought 11 for the recovery of money ” within the true intent and meaning of that phrase in subdivision number 1 of section 129, and in section 246 of the Code. Upon this question there has been quite a contrariety of opinion, not only among my brethren in this district but among other judges of this court. The first case which is reported from this district is Clor agt. Mallory, (1. Code Reporter, 126,) in which my brother Johnson held that “the language referred to in subdivision number 1 of said section 129, was intended to apply to actions upon promissory notes, bonds and other contracts for the payment of money upon their face, and not to the large class of actions for the recovery of damages merely on account of the nonperformance of some stipulation or duty other than for the payment of a sum of money due, although money only was sought to be recovered.” The same view of these sections in effect was taken by my brother Strong, in Johnson agt. Paul, (14 Howard, 454). The action in that case was to recover damages for the breach of a written agreement to convey to the plaintiff a farm and personal property. My brother Strong held that proof should be made of the actual damages, before judgment. In opposition to these views is. the opinion of my brother Welles in this case, reported in 17 Howard Pr, R., 97, holding that the plaintiff was regular in taking judgment for the amount mentioned in the summons and demanded in the complaint, and without of course any assessment of damages, in which the learned judge refers to Cook agt. Pomeroy, (10 Howard, 103,) also decided by him at special term.

It will thus be seen that all my brethren are upon the record on this question in separate opinions, at special term, and as they do not agree, it is obviously necessary and proper that the point be decided at general term. I have no doubt that the opinions, above referred to, by my brothers Johnson and Strong contain the true exposition of the sections of the Code referred to; but, independently of these opinions, I think the point should be deemed settled by the decision of the general term in the second district, in Tuttle agt. Smith, (14 Howard, 395,) where the question is very carefully considered. It is a simple question of practice, and when such a question is distinctly and fairly decided at a general term, I think the decision should ordinarily be followed.

It is with many questions of practice really a matter of more consequence to the public that they be settled and be at rest, and that there be uniformity of proceeding throughout the State, than how they are in fact settled. If there be errors of any practical consequence in any such case the legislature will speedily apply a remedy.

I think therefore that the order of the special term should be reversed and the judgment set aside; with leave to the defendant to answer in ten days after service of a copy of the order.

Judgment set aside.

Welles, J., dissenting.