Dunn v. Bloomingdale
New York Supreme Court
Motion to set aside complaint for irregularity. The action was commenced by the service of a summons without complaint. The form of the summons was that prescribed in the second subdivision of the 129th section of the Code. The defendant, on the same day the summons was served, appeared by his attorneys, and demanded a copy of the complaint. On the next day a copy of the complaint was served.
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Motion to set aside complaint for irregularity. The action was commenced by the service of a summons without complaint. The form of the summons was that prescribed in the second subdivision of the 129th section of the Code. The defendant, on the same day the summons was served, appeared by his attorneys, and demanded a copy of the complaint. On the next day a copy of the complaint was served. The cause of action stated in the complaint is a breach of a contract of warranty, made by the defendant upon an exchange of horses. The defendant moved to set aside the complaint, on the ground that it…
1Opinion of the Court
Harris, Justice.
I think the plaintiff’s practice has been regular. I certainly should have drawn the summons in the form which has been adopted by the plaintiff’s attorney. The complaint, it is true, sets forth a contract of warranty, but it is, *475in fact, an action to recover damages. The distinction between an action like this, and one founded on misrepresentation, is very narrow. In each case the object is compensation in damages for deception. In neither case can the action be said to be brought for the recovery of a money demand. The better opinion seems to be that, in all such cases, even…
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