Hemson v. Decker
New York Supreme Court
Motion to strike out complaint for departure from summons. The complaint stated that plaintiff and defendant were engaged in several speculations in the purchase and sale of wheat and flour, as partners ; that there was a loss sustained in their operations, and that the defendant’s portion of such loss amounted to $404.70, over and above all his advances, claims and offsets, and demands judgment for that sum, together with a prayer for such further or other relief as to the…
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Motion to strike out complaint for departure from summons. The complaint stated that plaintiff and defendant were engaged in several speculations in the purchase and sale of wheat and flour, as partners ; that there was a loss sustained in their operations, and that the defendant’s portion of such loss amounted to $404.70, over and above all his advances, claims and offsets, and demands judgment for that sum, together with a prayer for such further or other relief as to the court might seem proper. The summons was under the second subdivision of section 129, concluding with a notice that in…
1Opinion of the CourtE. Darwin Smith, J.
The summons in this case contains the notice prescribed in subdivision No! 2, of section 129 of the Code, stating that if the defendant fails to answer, the plaintiff will apply to the court for the relief demanded by the complaint. This is the proper form of the notice to be inserted in the summons in all cases when the action is not upon a money demand or obligation for the payment of money, when the damages can be ascertained by a simple computation of interest. In all casés. where the damages are to be proved or assessed upon evidence or extrinsic facts, aside from the contract sued upon,…
2Cases cited4 opinions
- EJ DuPont De Nemours & Co. v. VanceSupreme Court of the United States · 1857
- Dykers v. . TownsendNew York Court of Appeals · 1861
- Rogers v. RogersNew York Supreme Court · 1809
- Bell v. CarrellNew York Supreme Court · 1823
3Cited by4 opinions
- Schiffer v. AdamsSupreme Court of Colorado · 1889
- Berry v. BingamanSouth Dakota Supreme Court · 1891
- Bender v. ComstockThe Superior Court of New York City · 1865
- Schuttler v. KingMontana Supreme Court · 1892