Summons - Fraud, etc.- Undertakings - Warranty.

are based on allegations of fraud, must be commenced by a summons under subdivision 2. Field v. Morse, 7 How. 12; Travis v. Tobias, 7 id. 90; Hartshorn v. Newman, 15 Abb. 63.

The rule has been applied to actions for damages arising from the false and fraudulent representations of the defendant. Atwill v. LeRoy, 4 Abb. 438; S. C., 15 How. 227. Also to actions for malicious prosecution. Webb v. Mott, 6 id. 439. The rule has been also applied to actions for the conversion of personal property. Voorhies v. Scofield, 7 How. 51; Ridder v. Whitlock, 12 id. 208.

Undertakings. It was also laid down as a rule, that in actions on undertakings, the summons should be for relief. Kelsey v. Covert, 15 How. 92; S. C., 6 Abb. 336, note; Levy v. Nicholas, 15 id. 63, note.

This rule was also applied to an action on a constable's bond under the act of 1813. Mayor of New York v. Lyons, 1 Daly, 296; S. C., 24 How. 280.

Warranty. So in an action for a breach of warranty the summons must be for relief. Dunn v. Bloomingdale, 14 How. 474; S. C., 6 Abb. 340, note.

In the following cases it was decided that in an action where the plaintiff set forth demands for a sum specified by the terms of an express contract, joined with a claim for unliquidated damages on an implied contract, the summons should be framed under the second subdivision. Norton v. Cary, 23 How. 469; S. C., 14 Abb. 364; Tuttle v. Smith, 14 How. 395, 403; S. C., 6 Abb. 329; see, also, Cobb v. Dunkin, 19 How. 164, and People v. Bennett, 6 Abb. 343, approving Tuttle v. Smith.

That the second subdivision of section 129 of the Code contains the proper notice in all actions for unliquidated damages on contracts, express or implied, has been repeatedly asserted in nearly every case before cited in this section. The same rule is still further sustained in the cases of Garrison v. Carr, 3 Abb. N. S. 266; S. C., 34 How. 187; Salters v. Ralph, 15 Abb. 273; Johnson v. Paul, 14 How. 454; S. C., 6 Abb. 335, note. A summons framed under subdivision 2, and served with the complaint, will not be set aside even if the case should properly fall under the first subdivision. Brown v. Eaton, 37 How. 325; Hemson v. Decker, 29 id. 385. But, whenever a summons is framed under the first subdivision, and the complaint sets forth a cause of action under the second, the complaint, and not the

Summons-The notice must be definite and under one form only.

summons, will be set aside. Brown v. Eaton, 37 How. 325; Hemson v. Decker, 29 id. 385; Cobb v. Dunkin, 19 id. 164; Ridder v. Whitlock, 12 id. 208; Johnson v. Paul, 14 id. 454; Shafer v. Humphrey, 15 id. 564; Bender v. Comstock, 4 Rob. 644.

Section 6. The notice must be definite and under one form only. The notice of the manner of taking judgment inserted in the summons must be definite and not in the alternative. Baxter v. Arnold, 9 How. 445. It will, however, be sufficiently definite, if, in addition to the demand for a specific sum of money, there is also a claim for interest. De Witt v. Smith, 3 How. 280; S. C., 6 N. Y. Leg. Obs. 314; 1 Code R. 24.

Section 7. Notice of time and place to serve answer. In addition to the notice of the manner in which judgment will be taken, the summons must, in all cases, require the defendant to answer the complaint, and to serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State in which there is a post-office, and within twenty days after the service of the summons, exclusive of the day of service. Code, 128.

Section 8. Variance between summons and complaint. As the object of a summons is to apprise the defendant of the commencement and nature of an action, and bring him into court, all subsequent proceedings are supposed to be based upon it. In all cases of variance between the summons and complaint, the summons controls, and the complaint must be amended to conform thereto, or it may be set aside for irregularity. Boington v. Lapham, 14 How. 360; Allen v. Allen, id. 248; Tuttle v. Smith, id. 395; S. C., 6 Abb. 329; Ridder v. Whitlock, 12 How. 208; Johnson v. Paul, 14 id. 454; S. C., 6 Abb. 335, n; Gray v. Brown, 15 How. 555; Shafer v. Humphrey, id. 564; Davis v. Bates, 6 Abb. 15; Follower v. Laughlin, 12 id. 105; Campbell v. Wright, 21 How. 9; Bender v. Comstock, 4 Rob. 644.

A complaint may vary from the summons in the title, or in the nature of the relief demanded. In either case, the complaint is irregular, and the defendant's remedy is to move for an order to set aside the complaint. Allen v. Allen, 14 How. 249; Campbell v. Wright, 21 id. 9.

It will be too late to object to such an irregularity on the trial of the cause. Willett v. Stewart, 43 Barb. 98; Conaughty v. Nichols, 42 N. Y. (3 Hand) 83. But it is only when the defend

Summons-Notice, where complaint is not served.

ant has been misled by the variance between the summons and complaint that either can be set aside for such an irregularity. When both summons and complaint are served together, no motion to set aside either can prevail. Brown v. Eaton, 37 How. 325. But where a summons under the first subdivision of section 129 of the Code is served without the complaint, and the complaint sets up a cause of action under the second subdivision of that section, the complaint must be set aside on motion; and the irregularity is not waived by the general appearance of the defendant. Brown v. Eaton, 37 How. 325; Hemson v. Decker, 29 id. 385; Shafer v. Humphrey, 15 id. 564; Johnson v. Paul, 14 id. 454; S. C., 6 Abb. 355, note. But when the summons contains the notice prescribed by subdivision 2, and the cause of action set forth in the complaint authorizes a judg ment without application to the court, the variance will be disregarded unless the defendant has been clearly misled to his prejudice. Hemson v. Decker, 29 How. 385; Brown v. Eaton, 37 id. 325. If no objection has been made before trial, the variance between the summons and complaint in such cases will not affect the validity of a judgment. Conaughty v. Nichols, 42 N. Y. (3 Hand) 83.

Section 9. Notice, where complaint is not served. A copy of the complaint need not be served with the summons. Where it is not so served, the summons must state where the complaint is or will be filed. Code, § 130. A summons served without a copy of the complaint, and which does not state where the complaint is or will be filed, is irregular, and may be set aside on motion. But such a summons is not absolutely void. Pignolet v. Daveau, 2 Hilt. 584; Foster v. Wood, 30 How. 284; S. C., 1 Abb. N. S. 150; Keeler v. Belts, 3 Code R. 183. The defendant's remedy is to move to set aside the summons.

It is the original complaint that should be filed; but a statement in the summons that a copy had been filed is an immaterrial error. Hart v. Kremer, 2 Code R. 50.

As to the notice to be inserted in a summons in case of service by publication, see art. 2, § 3, post.

The notice to be inserted in or appended to the summons where the defendant is proceeded against under the act of 1842, is given in a subsequent article. See art. 2, § 5.

Section 10. Special indorsements. In an action for a penalty or forfeiture given by a statute, an indorsement must be made

Form of an indorsement on a summons in an action for a penalty.

on the summons, referring in general terms to that statute, either by citing the title of the act, or by referring to the chapter of the session laws where it may be found, giving, at the same time, the day and year of its passage, or by any other method of citation, which shall clearly apprise the defendant of the particular statute under which the action is brought. 2 R. S. 481 (503), §7; Perry v. Tynen, 22 Barb. 137; Andrews v. Harrington, 19 id. 343; Avery v. Slack, 17 Wend. 85. The form of the indorsement is immaterial, if it meets this requirement; but if it is so general as to leave it uncertain what particular statute the defendant has violated, the indorsement will be insufficient. Marselis v. Seaman, 21 Barb. 319; Avery v. Slack, 17 Wend. 85. This indorsement is requisite in such actions only as are created or given by some statute.

If the action had an existence independently of the statute, or if the measure of damages only is fixed thereby, no indorsement on the summons referring to such statute is necessary or proper. Sprague v. Irwin, 27 How. 51.

As the only object of requiring an indorsement of process in any case is to inform the defendant of a fact he could not learn from the process itself, to-wit: that he is sued for the recovery of a penalty or forfeiture, given for the violation of some statute, the indorsement may be omitted where the action might be commenced by the filing and service of a declaration, as under the former practice, where the declaration contains the information required. See Thayer v. Lewis, 4 Denio, 269.

Section 11. Stamps. The law of congress, requiring that a fifty-cent revenue stamp shall be affixed to a summons, was repealed by the laws of 1867, chapter 169, section 9, page 475.

Form of an indorsement on a summons in an action for a penalty.

Issued according to the provisions of the statute concerning the incorporation of turnpike and plank road companies, and the collection of penalties for demanding and receiving more than lawful toll in passing through toll-gates on such roads (or a similar reference to the statute under which the plaintiff brings his action.)

Form of summons for money and relief.

Summons for Money - Complaint Served.

SUPREME COURT-COUNTY OF

at

You are hereby summond and required to answer the complaint of the plaintiff herein, a copy of which is hereto annexed, and to serve a copy of your answer on N. Y., within twenty days after the service of such summons, exclusive of the day of service; and if you fail to so answer said complaint, the plaintiff will take judgment against you for dollars and cents, with interest E. F., Plaintiff's Attorney.

besides costs.

Form of a Summons for Money - Complaint not Served.

SUPREME COURT-COUNTY OF

A. B., plaintiff,

agst.

C. D., defendant.

To the above-named defendant:

filed with the

You are hereby summoned and required to answer the complaint of the plaintiff in this action, which clerk of the county of

on

at

,

and to serve a copy of your answer within twenty days after the service hereof upon you, exclusive of the day of service; and if you fail to answer said complaint, the plaintiff will take judgment against you for dollars and cents, with interest besides costs. E. F.,

Plaintiff's Attorney.

Form of a Summons for Relief — Complaint Served.

You are hereby summoned and required to answer the complaint of the plaintiff herein, a copy of which is hereto annexed, and to serve a copy of your answer on

at N. Y., within twenty days after the service of this summons, exclusive of the day of service, and if you fail so to answer the complaint the plaintiff will apply to the court for the relief demanded in the complaint. E. F., Plaintiff's Attorney.