New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-11-19
Ia " NTELLIEENCE.
KINGS COUNTY SUPREME COURT-Nov. ls.-Before

KINGS COUNTY SUPREME COURT-Nov ls-BefOre
the Hon. LUcIES BIRDssYs.
The TwRNTY-FIRsT SECTION OF The METRoPoLIrN
POLICE LAW.
The People Of thu State of sg Michael Bennett
This is action brought by the People aganst Ben
nett to penalty of $50 for violation OF the
2st section OF the Metropolitan Police law, 10 exposing
for sale liquor on Sunday. Suit was brought in the
CITY Court against defendant ard 300 Others. This
was msde the test suit on an argument on the de-
muner to the mode Of action, on the ground that the
complaint did not conform with the Summons, aud that
the SUMMONS was an action for money demand on
contract By consent of counsel the was argued
before Judge Birdseye on Monday motion to set
aside the complaint for egularity 10 that II varies
from the sumDoDs.
Judge BiiGseye yesterday delivered the following
DECISION.
Motion aside the complaint for irresaary. in that
The SEINE motion is MADE In numerous other actions BY the
ssne pla 'ntas against other defendants ~
BIRDsEYE, in Morehoass agt; Crlley q How,
s M Justice Bsrculo held that the Code u 4 had sbro-
gated the provisions Of the Revised statutes e 49, O
TO seas the words Of and refs to the without
setting forth the special matter And for this reason be .n
for Violations Of these excise laws because did forth
specially the facts the cause Of sson had 70 III.
PoyOn. dc t7l;t section Of the Code By this section
lib the Code and applicable to the
ei.pst tie pat
sequence 81 such proceeding civd shall Do Brought
soop shall BIZ conducted in conformity 70 the Code ald
cepteo plainly Inconsistent with the Code such
provision to be deem ed repealed.
This section in force when The Of horhouse vs.
CIy decided but L. not to have been brought t.
the notice the learned Judge Hence the cs'e c:nnot wen
BE- conseed dcisive authority the Question Sethef
the shcrt form Of declaring in actions for penalties ana ie
RsripsS .bcbes !, III. code That Question does
not seem to have bee passed upon in any other ss
It IN Mofehouse VS. Criley being na1iiesy incomplete
has, however been held numerous cases that other pro-
BY b g s7 he .e Of he Code although their
quite inconsistent with the Code as &c those Which give the
Thus ia the Bank Of Gepesee ACT The Petn Bank % Rev
s s as fG% AeF sG I
suits brought by corporation shall not be Necessary 70 PROVE
epasnt bs have pleaded in sb,temeu or the plain
tfs are not corporation e R s 45s, sec 81
os:es ee ,be Bari %teTto~n st Bsis, is Hon Fl q
1 aa gn Ren Sosf ow r.
see no presto, OF me- re
pec the Of declaring for penalties than there Ie
to the provisions to the method OF pleading the f
As was said in Kernsn 3i there no inconsistency
70 .Gon under the
IL which existed under tho
vision Of the Code. It. therefore, remsin, 10 force.
This method Of declaring sets .s pope rs, sSs PrIp. ,
The defendants contend that whatever be the proper form
Of complaint, the action is not action arising on contact
within the meaning OF Sub Of Sec ll9 Of the Code ast sn
application the relief demanded in the complaint must bs
sde before the psinfs Judgment aud therefore
notice to such effect should have included 10 the
vde al evil sdtoHs Ito two Classes are Intended to
suh action, a on express so a 0 S5 hf @
eSpIueOn nor do see any god reason far saopie +
by implication raised contract between the parties aud gave
the Ct enforcing it BY an scdon in form contractg
cbse have been taken by force fraud may still elect to
waive the lost and bring his acton for their Value iou aiding
fair Obd just equivalent for the property taken
81 tort nv
feet Of his liability has been established aud the extent Of IL de-
code to On action in form fT cOnactE upon the Judgment not
bc,use there any contract to pay BY judgment
pay d. finite Ct in posed on the defendant
considerations when allowed the actions Of a'ump
ard practice and which the granting Of the relief
snest the PIe'at system npo5 statement Of the
the the Court and require tina, sha be
classed por the code The defendant I. he pay
money by suy expires, agreement on his part Bay he has
Pys specified 'um to particular party the act was
icrbedsn thst ia eumi''on would s him IN the liability
Yet has chosen 20 violate the statute and ot
the consequences not strsnns the force oiusaase
he peiscn Injured for whose projection
sgrec arises on contract epecisly when this test applied
view 10 he obauirs Of the remedy and IA ma.,s excye
ly Il statutory cognizaDce.
The substantial of this view f. evident from the
uniform manner Of eoeetls sueh penalties adapt in sl- EG
gil law. This uniformity that part OF tire
pie, d g ts. the scton Of sy Tor the recovery Of sps
OF money due ether bS viz 81 record sute
writing der seA Judgments and Of
Courts Of Record ue' for the Of g-nae. ali
oif,i'ue. on aI d. &C. (See 7idds Pr, 4 Burfirs Pr
a. Oh p l2 i2'-si Bsoon'' Abr. Debt A. CON-. Dig
Debt A
Thus tad Ro add tae sn set OF pssm.n. give,
repsty and Gees net 10 whom BY whs: scon shall
BE- recovered scon of debt lies such BY the
parry reved The poat is stated In % B,c1n's Adv
Title Debt A. citing the authority, adding "and
which is now the common practice tSse sso ID Strange
s2O
h,, been On held il th, State tha, when no particular
prectihej fr the 1yeTy Of penalty given By
statute, debt the appropriate sCtiou as Weld la;
joins I7s).
These ard ether suthoia. which m ait " cited ,u
show thst IL 10 st)n OF Is By which the
ton debt made the sasl aud proper method
eotbs forfeus and les Oae OF the cited throws
much hgt, upoa the gradu. ia witch the
sct,on OF debt in the Civil Courts into for this par
Iose. 49,. =. -, 1900 -.
Indictment VIC stiou of ss,u,e b. up witch
NOR, pen.ty nposed he that where there
q statute pspaty debt the
=, -sb. fer Courts Of Seyeua. AMI not BY Indictment.
Where the between the Coaits Tor collection OF
III. Kprs revenue the ether Courts practically sbol
The ,sms Of action adopted tie ether Courts q
In rex