Lamoreux v. Atlantic Mutual Insurance , 3 Duer 680 ( 1854 )

Bosworth, J.

The Code requires a complaint to contain “ a demand of the relief to which the plaintiff supposes himself entitled.” (§ 142, sub. 3.) The nature of the relief demanded, in many cases, determines the mode of trial. If the prayer is for a judgment, that the plaintiff recover of the defendant a sum of money, the action must be tried by a jury. (§ 253.) If other relief be prayed, the cause is to be tried by the court, unless the court orders otherwise. (§ 254.)

If in an action on contract the prayer is simply for a judgment for a sum named, or in the language of the Code, if the action is “ for the recovery of money,” the clerk, in case no answer is put in, must assess the damages. (§ 246, sub. 1.)

If it is not merely for the recovery of money, but other relief is prayed, and must be given, to enable a plaintiff to recover, judgment cannot be given without an application to the court. (Id. sub. 2.)

• The summons, in the one case, must be. different from that in the other. (§ 128.)

If the action is for the recovery of money only, if the plaintiff recovers $50 (if it be on contract), he recovers costs. (§ 304, sub. 4.)

But if he seeks other relief, and the action be such as formerly could be brought only in chancery, the costs are in the discretion of the court. (§ 306.)

Hot only the imperative' requirements of the Code, but the policy, and all the provisions of it, before referred to, demand that the specific relief sought should be stated distinctly and directly.

If the question of reforming the policy is to be litigated, a defendant should be advised of it by the complaint. Unless facts are stated sufficient to entitle a plaintiff to that relief, a defendant may desire to demur to so much of the complaint as contains that cause of action. (§ 145.)

Unless the reforming of the policy is sought, and a judgment reforming it is demanded, all allegations in the complaint, having no relation to any other point, should be omitted.

This complaint does not state what words were Omitted to be written on the margin of the policy, nor what precise reformation is sought. The plaintiff may amend his complaint within twenty days as he may be advised. If he does not amend, the words, “ that if the same be necessary,” will be stricken out of the complaint, and defendant may have ten days to answer a demurrer, after the complaint has been amended.

(Duer and Hoffman, J.J., being consulted, concurred.)