McDonald v. Walsh
New York Court of Common Pleas
Motion to dismiss the action on the ground of irregularity in the summons;—and also to reduce the amount of bail given by the defendant. This action was brought by Mary Ann McDonald against George Walsh, to recover damages for a breach of promise to marry. The summons was drawn according to subdivision 1 of section 129 of the Code, which was the irregularity relied upon; the defendant contending that subdivision 2 of that section should have been followed.
1Opinion of the CourtBrady, J.
The summons and complaint should have been in conformity to subdivision 2 of section 129 of the Code of Procedure. (Clov v. Mallory, 1 Code R., 126; Flynn v. The Hudson River Railroad Company, 6 How. Pr. R., 308; Hyde Park v. Teller, 8 How. Pr. R., 504; Trappe v. The New York and Erie Railroad Company, 6 How. Pr. R., 237.) The action, though on contract, is one sounding in damages, in relation to the amount of which the defendant is entitled to be heard. The contract itself furnishes no clue to the amount to be recovered, and the defendant would have the right, on a writ of inquiry, to call…
2Cases cited1 opinion
- Blue v. StoutNew York Supreme Court · 1824