The People a. The New York General Sessions. ceedings on the certiorari to be filed in the office of the clerk of the county. If this section is applicable to the General Sessions of the Peace of the city of New York, it would place the return in an office entirely unconnected with the court. Besides this, the fact that the remedy by appeal, which has heretofore existed, is not repealed by any thing in this statute, or elsewhere, affords another reason why the Legislature did not intend to include the city of New York in this act. It cannot be contended that the Legislature intended to create two modes of reviewing the decisions of the special term-one by appeal and the other by certiorari-and yet such would be the case if this act is held to be operative on the New York courts. I think the more reasonable construction of the act is to confine its operation to the courts of the name stated in the statute, and not to extend it to other courts not specially named therein. It has been suggested that the act of 1859, to empower Courts of Sessions to extend their terms, &c., has been always considered as applying to the Court of General Sessions. This may be, and yet we find that the Legislature, in 1862 (ch. 10), passed a special act to empower the Court of General Sessions of the Peace for the city and county of New York to extend the terms and to authorize adjournments. If any statute can be said to be declaratory of the law, the passage of such an act can only be considered as declaring that the former act of 1859 did not apply to this court. I do not think, therefore, that the statute under consideration applies to the Court of General Sessions of the Peace in the city and county of New York, and that the Court of General Sessions have no jurisdiction to review a judgment of Special Sessions under the powers conferred by the act of 1859, or Courts of Sessions of the counties. The writ of prohibition is granted. Hartshorn a. Newman. HARTSHORN a. NEWMAN. Supreme Court, First District; General Term, Nov., 1862. DAMAGES BY FRAUD.-FORM OF SUMMONS. In actions to recover damages for fraud and deceit, the summons should be for relief, according to subd. 2 of section 128 of the Code.* Thus in an action to recover damages for having induced plaintiff to buy a promissory note by falsely representing it to be a business note, a summons demanding judgment for a specified sum, according to subd. 1 of section 128, is irregular. * In the case of LEVY a. NICHOLAS (N. Y. Superior Court, Special Term, August, 1862), it was Held, that in an action for unliquidated damages, upon breach of a contract,,-e. g., an undertaking of bail,-the summons must be for relief. Mr. Hartford, for the defendants, moved to set aside the complaint for a departure from the summons in this respect. S. B. H. Judah, opposed. ROBERTSON, J.-I think the summons was incorrectly drawn. Section 129 of the Code provides that "in actions arising on contract for the recovery of money only," the notice to be inserted is, that the plaintiff "will take judgment for a sum specified therein, if the defendant fail to answer the complaint," and in such action, section 246, subd. 1, provides that the clerk shall enter judgment for the amount mentioned in the summons. The undertaking in this case was simply that the defendant should render himself amenable to the process of the court, and the action is for damages for his not having been so. I concur with the views of Judge Barculo in Hyde Park a. Teller (8 How. Pr., 504), that subd. 1 of section 129 ought only to apply to contracts providing in terms for the payment of money. Whenever it is necessary to go out of the contract to fix the amount, such provision is inapplicable. (Tuttle a. Smith, 6 Abbotts' Pr., 329; S. C., 14 How. Pr., 395; West a. Brewster, 1 Duer, 647.) Upon that principle Justice Strong decided in Kelsey a. Covert (15 How. Pr., 92), that in such an action as this, notice should be given under the second subdivision, because, as he argues, the amount specified is not the sum to be paid, but the limit of it. The first subdivision was not intended to include all cases of contract where only money is demanded, as has been decided in numerous cases collected in note 6 to section 129 of the Code. (Code, 1860, Voorhies ed., 116.) I do not think the case of Croden a. Drew (3 Duer, 652) militates against this. The complaint must be set aside, unless the plaintiff elect to amend that or the summons, and without costs. If the defendants wish to obtain the favor of extending the time of surrendering their principal, they may have such time extended thirty days, on paying the plaintiff's costs prior to filing the complaint, and $10 costs of opposing this motion. Consult, also, Norton a. Cary, 14 Abbotts' Pr., 364. Hartshorn a. Newman. Appeal from an order denying a motion to strike out the complaint. This action was brought by William L. Hartshorn against Charles Newman and C. Belden Hall. The summons stated, that on failure to answer, &c., the plaintiff would take judgment for $400, with interest from May 26th, 1862. The complaint alleged that the defendants, conspiring to defraud the plaintiff, by sundry misrepresentations induced the plaintiff to discount a note of $287.40; that by reason of the matters set forth plaintiff had sustained damage in the sum of $400 for which amount judgment was asked. A motion was made by the defendants to strike out the complaint as inconsistent with the form of the summons. Mr. Justice Ingraham denied the motion, and the defendants appealed. Gideon L. Walker, for the appellants. Edward Forbes Travis, for the respondent. BY THE COURT.-INGRAHAM, PJ.-This action was against the defendants for selling to the plaintiff a note, which they falsely represented to be a business note, &c., and claiming to recover from them, for the fraud and deceit, the value of the note so sold. On the hearing of the motion, I thought that as the plaintiff could only recover the amount of the note and interest, he could take judgment for that amount, and no application to the court was necessary. Upon more reflection, however, I am satisfied that the note is to be considered only as inducement to the action, and the true cause of action is the fraud and deceit. In such a case the application for judgment must be to the court, and the summons should have corresponded with the complaint. The cases of Ridder a. Whitlock (12 How. Pr., 208) and Tuttle a. Smith (6 Abbotts' Pr., 329; S. C., 14 How. Pr., 395), are authorities on this point. The order must be reversed and the motion granted, with $10 costs, with leave to plaintiff in twenty days to amend summons on payment of such costs, and without prejudice to the order of arrest. PECKHAM and LEONARD, JJ., concurred. . Sarsfield a. Van Vaughner. SARSFIELD a. VAN VAUGHNER. Supreme Court, First District; General Term, Nov., 1862. ACTIONS OF EQUITABLE NATURE.-AMOUNT IN CONTROVERSY.JURISDICTION.-COSTS. The Constitution of 1846 and the Code of Procedure have, by necessary implication, abolished every limitation in respect to the amount in controversy theretofore required to give jurisdiction in actions of an equitable nature, such as were formerly entertained only in the Court of Chancery. No rule was revived, by the repeal (Laws of 1862, 859, ch. 460, § 39) of the provisions of 2 Rev. Stat., 173, § 37, in relation to the jurisdiction of the Court of Chancery. Appeal from an order dismissing the complaint. This action, by Patrick Sarsfield against George W. Van Vaughner and Elizabeth Greer, was in the nature of a creditor's bill. The judgment against Van Vaughner, on which this action was founded, was paid with the exception of a balance of $31.02. Mr. Justice Clerke dismissed the complaint on motion of defendants, on the ground that the matter in dispute did not exceed fifty dollars. The plaintiff appealed. Robert H. Shannon, for the appellant. Ira O. Miller, for the respondents, made substantially the same points as on the motion below, 14 Abbotts' Pr., 297. BY THE COURT.-LEONARD, J.-The Constitution of 1846 and the Code of Procedure have, by necessary implication, abolished every limitation in respect to the amount in controversy theretofore required to give jurisdiction in actions of an equitable nature, formerly entertained only in the Court of Chancery. (Giles a. Lyon, 4 N. Y., 600; Cobine a. St. John, 12 How. Pr., 333; Coon a. Brook, 21 Barb., 546; Mallory a. Norton, Ib., 424.) No rule was revived by the repeal of section 37, article 2, VOL. XV.-5 White a. Ross. title 2, chapter 1, of the Revised Statutes, in relation to the jurisdiction of the Court of Chancery (Laws of 1862, 859, ch. 460, 39), because the Code had previously repealed that statute, and abolished every other rule limiting the jurisdiction of the Supreme Court. The question of costs may be affected where the amount in controversy is under $50. The order appealed from should be reversed, but without costs. INGRAHAM, P. J., and BARNARD, J., concurred. WHITE a. ROSS. Court of Appeals; September Term, 1860. ESTOPPEL TO Persons who make contracts with a corporation de facto, cannot deny its legal existence. Any errors or informalities in the mode of the formation of a corporation, under a general act for the organization of corporations, are cured by a special act recognizing the existence of the corporation, and changing its name. A mutual insurance company, organized under the General Insurance Companies Act of April 10, 1849, may divide its risks into classes, according to the degree of hazard, and assess the premium notes only for the payment of the losses happening in the class to which such notes belong.* All the notes of a mutual insurance company constitute its capital stock; and, although the notes of one department must be first assessed to pay the losses of that department, yet, if they are found not sufficient, and any thing remains in the other department beyond paying the claims upon it in that branch, resort must be had to those remaining assets until the whole are exhausted. If the necessity exists, resort must be had to the entire fund of the company. Appeal from a judgment. This action was brought by Justus White, receiver of the * Overruling Thomas a. Achilles (16 Barb., 491). |