The notice to be inserted in the summons.

The omission of a descriptive word, as junior or senior, or the middle letter between the christian and surname, is no misnomer, and needs no remedy. See People v. Cook, 14 Barb. 259, 261.

ARTICLE III.

THE NOTICE TO BE INSERTED IN THE SUMMONS.

Section 1. In general. No question more frequently or more seriously perplexes the practitioner than to determine whether the notice of judgment in the summons is the proper one to be adopted in some particular case. To reconcile all the decisions that have been made in relation to this question is not possible; and to find a full, clear and intelligible rule for determining which form of notice is proper in all the various cases which arise in actual practice, is the precise thing most desired by the profession.

It may be well to notice, in the first place, some of those points about which there is no question. One of these is, that under the first subdivision of section 129 the action must be one that arose upon contract.

Every express contract falls under this rule, whether oral, or written and sealed, or written but unsealed. Actions for penalties given by statute, and actions upon judgments, are regarded as of this character. But whether any or all implied contracts fall within the same rule of construction is not settled by the

cases.

The second admitted rule is, that the recovery sought must be one for money only. But there are numerous questions here that require settlement. Must the contract specify in express terms the precise sum recoverable? Are actions for the recovery of liquidated damages within this rule? If the existence of the contract, whether express or implied, and the fact of its breach is also clear, but the amount of damages recoverable is unliquidated and is to be assessed upon the evidence, is this a case under subdivision one? If the terms of the contract are express and clear, but the recovery depends upon fixing the value of property or services, does the case fall under the same subdivision ? If the contract is merely an implied one, and the value of property or services is to be fixed, what is the proper notice?

A third settled rule is, that all actions not arising on contract,

Summons - Rule relating to the first subdivision.

nor for the recovery of money only, must fall under subdivision two of this section.

Many cases will be very clearly within this subdivision. Of this kind will be all actions for a tort or a wrong unconnected with contract; all actions for the breach of a contract when unliquidated damages for the breach constitute the sole ground of recovery; all actions in which nothing is sought but equitable relief; all actions in which damages are claimed for a fraud; all actions founded on what the law regards as wrongs although arising out of contract. But how is the rule where the action is brought to recover back money which has been paid on a contract procured through fraud; and where the action is founded upon a repudiation or a rescission of the contract?

A fourth settled rule is, that the notice cannot be in the alternative, nor under both combined.

For the convenience of the practitioner, nothing is more important than the adoption of some settled rule which is easily and certainly applied to each particular case as it arises. Such a rule ought to be in harmony with the statute, and a true construction of its spirit and intent. But, if there is a doubt as to the true meaning of the statute, it ought to be amended; or, if that is not done, the courts ought to establish some certain rule as a guide; for, it is of the utmost importance in such cases, that there should be an established rule which may be readily applied by every intelligent lawyer. A clear, well-known, and settled rule is of the highest importance to parties, to attorneys and to the court itself, as it secures the rights of litigants and saves the time of the courts. It is evident that there has not, as yet, been any general principle of construction adopted, since the decisions are far from being in harmony, either as to the actual decision, or as to the principle upon which it was founded. For the purpose of suggesting a general mode of framing notices under this section, the following general rules are given:

Section 2. Rule relating to the first subdivision. A notice. under this subdivision is proper in all cases in which the plaintiff is entitled to recover a particular sum which is specified in express terms in the contract; or, where such sum may be ascertained from the language and terms employed in the contract; or where the law authorizes the recovery of a fixed sum, and it treats the recovery as one founded upon contract, although there may be no actual contract.

Under this rule all express contracts are included, whether oral or written, sealed or unsealed. Actions upon judgments, and for the recovery of penalties given by statute, are treated as contracts, and besides are for a fixed sum and thus fall within this subdivision.

But this form of notice is limited to cases arising upon express contracts, or to legal liabilities in the nature of a contract, and where, in both classes of cases, a specific sum is to be recovered.

All other cases of implied contracts are excluded for the reason that upon implied contracts there is no fixed sum as a ground of action, and because no fixed sum can be ascertained by calculation or computation.

By this rule, if the contract and its breach are admitted, or proved, the plaintiff is entitled to recover a specified sum without further proof, unless it should be a mere computation, as in the case of computing interest.

Were it not for the rules that the contract must be express, and the amount of the recovery certain, there might be a large class of cases included under the first subdivision. There are numerous causes of action arising out of implied contracts, where the plaintiff need only prove the contract and its breach; and, besides that, the value of property or services, as in case of actions upon the common counts for goods sold and delivered, for services rendered, and the like cases. There are instances in which such cases would seem to fall under the first subdivision; but if implied contracts are admitted in one instance, what rule determines their exclusion in other instances? Cases may arise daily in which goods sold, or services rendered, were to be paid for by the terms of an express contract and at specified prices, while other goods and services, in the same account, were left to an implied contract, as to value. In all such cases where there are causes of action which may be joined in the same complaint and where some of them might be classed under the first, and others under the second subdivision, it would be a practicable rule to frame the notice under the second subdivision.

When such causes of action cannot properly be separated, as in the case of the items of an account; or, where the causes of action may be properly joined, but need not necessarily be so united, and where a part of the cause of action arises under the first, and the rest under the second subdivision, it would be an

- Rule and decisions relating to subdivision one and two.

intelligible rule to frame the notice under the latter clause of the section,

It will readily occur, that there are numerous causes of action which may be joined in a single complaint; and, where, in one count, a specific sum is recoverable as upon a promissory note, while in another count the sum is uncertain; as in a claim for goods sold, where no price was agreed upon-and since both causes of action cannot properly be placed under either form of notice, the Code provides that all other actions which cannot be arranged under the first subdivision shall be placed under the second. Code, § 129, subd. 2.

Section 3. Rule as to subdivision 2. Under this subdivision ought to be included all actions for the recovery of damages for torts, or wrongs unconnnected with contract, or actions for the breach of any contract, whether verbal or written, sealed or unsealed, express or implied, where the amount of damages is not fixed by the contract, but is unliquidated, and is to be established by evidence; or where the relief sought is of an equitable nature; or where the action is for the recovery of real or personal property; and besides these must be included all actions not embraced by the first subdivision.

These general rules are supposed to harmonize with section 246 of the Code, which is intended to provide for the rendition of a judgment according to the form of the notice in the summons.

The cases collected in the two following sections are classified and arranged with a view to show the state of the decisions relating to these questions, so far as they are settled, and also to show how far there is a conflict of authorities.

Section 4. Decisions relating to subdivision 1. It has been decided in the following cases that the summons in an action for the recovery of liquidated damages should be framed under subdivision 1 of section 129 of the Code. Thus, all actions brought to recover liquidated damages expressed in a contract to convey lands should be commenced by a summons so framed. Cemetery Board of Hyde Park v. Teller, 8 How. 504. The same rule applies to actions for the recovery of money deposited. Goff v. Edgerton, 18 Abb. 381. Or for penalties given by statute. People v. Bennett, 5 id. 384; S. C., 6 id. 343; Board of Excise v. Classon, 17 How. 193. Or to actions upon an undertaking given pursuant to section 209 of the Code. Montegriffo v.

Musti, 1 Daly, 77.

Summons - Decisions relating to subdivision two.

It has also been decided that actions for unliquidated damages may be properly commenced by a summons framed under subdivision 1.

Thus, a summons so framed was decided to be in the proper form in an action for a breach of promise to marry. Williams v. Miller, 4 How. 94; S. C., 2 Code R. 55; Leopold v. Popenheimer, 1 id. 39. And the same rule was applied to actions against common carriers for a loss of goods. Trapp v. New York & Erie Railroad Company, 6 How. 237; S. C., 1 Code R. N. S. 384.

To actions for goods sold, price not specified. Dibble v. Mason, 1 Code R. 37; S. C., 6 N. Y. Leg. Obs. 365; Champlin v. Deitz, 37 How. 214; Mason v. Hand, 1 Lans. 66.

And to actions for damages for refusal to convey lands. Croden v. Drew, 3 Duer, 652.

In the following cases it was decided that an action was properly commenced by a summons under the first subdivision, although a claim for damages upon a quantum meruit was joined with a demand arising upon a contract to pay a fixed sum. Champlin v. Deitz, 37 How. 214; Mason v. Hand, 1 Lans. 66.

Section 5. Decisions relating to subdivision 2. The following cases have been decided to properly fall under the second subdivision of section 129:

Account. Actions for an account of moneys collected by an attorney. West v. Brewster, 1 Duer, 647; S. C., 11 N. Y. Leg. Obs. 157. And see McDougal v. Cooper, 31 N. Y. (4 Tiff.) 498.

Breach of promise. Actions for breach of promise to marry. Davis v. Bates, 6 Abb. 15; McNeff v. Short, 14 How. 463; Mc Donald v. Walsh, 5 Abb. 68; Barnes v. Buck, 1 Lans. 268.

Carriers. Actions against common carriers. Luling v. Stanton, 8 Abb. 378; S. C., 2 Hilt. 538; Clor v. Mallory, 1 Code R. 126; Flynn v. Hudson River Railroad Company, 6 How. 308; S. C., 10 N. Y. Leg. Obs. 158; Hewitt v. Howell, 8 How. 347. And see Campbell v. Perkins, 8 N. Y. (4 Seld.) 430, 438.

Creditor's bill. Actions in the nature of a creditor's bill, to set aside transfers of property on the ground of fraud. Shafer v. Humphrey, 15 How. 564.

Foreclosure.

1 Code R. 49.

All actions for foreclosure. Wyant v. Reeves,

Fraud, etc. In many cases it has been laid down as a rule, that all actions arising on contract but sounding in tort, or which