The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-08-15
superior Court-In Chambers.
Before Hon. Jndre Hoffman.

CASES UNDER TIE 246Tn SECTION OF THE CODE.
AUG. A--Morfimer Porter SAINT E. Lent
The summons Is for the relief demanded in The COM
plant, in case Of neglect Of the defendant TO an
swer The case made Ivy TIE complaint is, that the
defendant was an agent for the collection Of rents
belonging to the plaintiff; payments account are
stated, and request that the defendant would
furnish a full account Of, his dealings; his re-
fusal; the inability Of the plaintiff TO state the
precise due, but that lie believes such balance il
at least $3.50. The demand is for discovery and
account, and for judgment for such sum rs shall be
found due upon the said accounting, with interest
and costs Of the action The defendant has not APP
reared and application is made for judgment under
the 24Gth section OF the Code. The plaintiff pro
poses to take Judgment for the Of $780, TIL
complaint in verified. ! do not think such judg
ment il warranted By the Code. The first subdi
vision clearly does not apply. Under that the
mons must contain the amount Of the money de.
manded- certainly under the first clause; probably
10 all the within that section. And again the
case is not within the second clause Of such first
tion Lecause the complaint is sworn to. Under the
second subdivision the Court IL TO lie applied TO for
the relief demanded in the complaint; and here the
275th section IL Of Importance The relief to lie
granted, II there is no answer, cannot ex-
coed that which IL demanded In the COM
plant. In other cases any relief may be
granted which is consistent with the case made.
The secoId subdivision provides that in other ac-
tons the plaintiff may apply to the court for the re.
lief demanded In the complaint. II the taking OF an
account or the proof Of any fact lie Necessary 10
enable the court to give Judgment, or 70 carry the
judgment into effect the court may take the account,
or hear the proof or may, in its discretion, order
reference for that purpose The relief then demand
Cd in the complaint detEes and limits the power
OF the court 10 the judgment 10 be given. II IL
not the case made, but the judgment asked fr,
which controls In the present instance this Is Tor
on account and payment Of the balance to lie ascer
tanned upon IL. think there must he reference TO
take the account ~ sought. Attention has been
called 10 The seth rule Of the Supreme Court, a. i'm
plying that applications Of this nature must be made
nj special tenn. In the case, a-o Of Ryan ". Me-
lansvell q Sanford y. C., Rep. 709) ,imilsr view
the Code referred to, which directs that Jodg.
ncnts upon appeals shall le given at the general
term, and all Others az the special term. The case
in lit Sandiord wsE decided in 1873. In 1850 this
court ado pied among others the fifth rule providing
that ncntnumerated motions will be he heard by
one OF the justices nj the special term room and the
chambers daily, with certain exceptions. For such
motions and for the purpose OF making all necessary
orders and giving judgments in causes adcr chapter
rst Of title eight of the second part OF the Code
Special term will he held every day daring the
lion. at 10 o'clock A. NJ This chapter comprises
the 2s5h. 2s6b and 2a7th sections OF the Code and
Judgments OF this nature now warranted.
Leopold Horn Is. Jfchosi Doody and Jacob
Nigfr.-The action was one OF CHIN and delivery
20 recover certain articles OF furniture and pictures
With damages for The detcnton. The defendant sp-
reared and demanded copy Of the complaint.
This was duly served, ard the time for answering or
d, murrrg IL shown to have expired. Eight days
notice Of application for the relief demanded has
teen dolly served. Tie summons was for the relief
demanded In the comp airt. The lat clause Of the
second subdivision Of section 24o governs the case
The action IL for the recovery Of seeacied personal
property, with damages for the withholding thereof.
The damages in such q case are TO be assessed ny
jury or IL the examination ~ long account be IN
yolved by reference. ! cannot direct reference
a. asked for. There IL no account involved lagree
that the plaintiff may take judgment for the delivery
Of the articles, IL lie valves tie claim fos damages;
otherwise a jury must assess them. The regular
course In 70 direct an assessment by the sherins
jury. 6 IT. KEEP. 423, Code Rep. Iii) soch viii
lie the order in the present case.