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Affirmative Relief to Defendant, a. When a defendant claims affirmative relief, legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him. He can only obtain the relief when the cause is brought to a trial upon his own notice or that of the plaintiff. Roy v. Thompson, 8 Pr. R. 253.

b. It seems that prior to the amendment to this section, 1852, a defendant could not have affirmative relief upon his answer. Haire v. Baker, í Selden, 357; but in that case, the court seem to have overlooked the concluding sentence of section 263.

c. Section 274 "allows to a defendant affirmative relief; but is not that as against the plaintiff only? For it makes no provision for plaintiffs to set up claims one against another, nor for notifying the adverse co-defendants of such claims. It also authorizes the court to determine the ultimate rights of the parties on each side as between themselves; but must not that be the rights as they arise from the claim set up by the plaintiff only? For as to all claims between co-defendants, neither knows what the other sets up against him.” Mitchell, J. Mechanics' Savings Institution v. Roberts, 1 Abbott 382.

d. After issue joined, if a defendant seeks judgment for more than a dismissal of the complaint, with costs, he must notice the cause for trial. Wilson v. Wheeler, 6 Pr. R., 49.

e. Where all the defendants appeared but only some of them put in an answer, on the trial of the issues raised by the defendants who answered, had without notice to the defendants who did not answer, a defendant who answered cannot take judg. ment against the defendants who did not answer and who had no notice of the trial. Tracy v. N. Y. Steam Faucet Co., 1 Smith, 349; and per Woodruff, J. (p. 354.)“The judgment in favor of one defendant against two other defendants is supposed to be warranted by section 274, which in terms authorizes the court to determine the ultimate rights of the parties on each side as between themselves. If we sustain this judgment under the provisions of that section, it appears to me that we cannot stop short of saying that in an action by A. against B. and C., to recover money alleged to be due from them, if B. does not answer the complaint the court may give judgment in favor of C. against B., without apprising B. that any claim in favor of C. has been interposed in the action. Or, for example, if A. sues B. as maker, and C. as endorser, of a promissory note in one action, and B. does not answer, the court may on the trial and in the absence of B., give judgrnent in favor of C. against him. I apprehend that this was not, and that nothing like this was, intended by the legislature in enacting the section referred to (s. 274). It is doubtful whether it was intended to go further than the former practice in chancery in settling the rights of defendants as between each other, as in interpleader suits, suits for partition, suits filed to close a trust, suits brought for the distribution of a fund, suits brought for the purpose of settling conflicting claims, and the like, where it was within the proper scope and object of the section as exhibited in the complaint to bring these various conflicting claims to an issue and the determination of which was essential to the accomplishment of the very object sought by the bill itself; and even in such cases, although the court had full power to make a decree in favor of one against another defendant, it was frequently necessary, and in many other cases it was indispensable, that the defendant seeking affirmative relief against another defendant, or setting up a conflicting claim upon grounds not brought in issue by the complaint itself, should file his cross-com. plaint to enable the adverse defendant to litigate the points in controversy between them. Whether the section referred to has extended the class of cases in which such judgment can be given, so as to embrace actions in which no such practice ever theretofore prevailed, I will not now inquire. It does not, in my view of the subject, seem to me just nor reasonable to give it a construction warranting a judgment against a defendant in favor of a co-defendant, where he is not apprised by the complaint, nor by a cross-complaint or otherwise, that in that action which he has been summoned to defend, his liabilities against his co-defendant will be urged against him. By the summons and complaint he is informed that the plaintiff makes a claim, therein set forth. If he answers he is only bound to meet the case made by the plaintiff; if he does not answer the court should only make such decree as is consistent with the prayer of the complaint. The practice under this section remains to be settled. But it appears to me a matter of great doubt whether it can be made to apply to an action founded on a complaint like the present.” The complaint referred to was a complaint to set aside an assignment. See ante, p. 407, b, c; 409, a, b.

Dismissal of complaint for not serving a copy. a. “ The statute has fixed the time within which the plaintiff must serve a copy of the complaint after demand; and if he fails to serve the copy in time, we must regard it in contemplation of section 274, as an unreasonable neglect to proceed in the cause against the defendant who has been served with the summons; and the motion may be, in the language of that section, to dismiss the complaint, though in point of fact no complaint may have been made. If the motion is granted, the action will be discontinued or dismissed. (Colvin v. Bragden, 5 Pr. R., 124.)” Per Marvin, J., in Baker v. Curtis, 7 Pr. R., 479. If the copy complaint is not served within twenty days after it is demanded, and is afterwards tendered, the defendant is not bound to accept it. Mandeville v. Winne, 5 Pr. R., 461. And if, after service of notice of motion under this section to dismiss the complaint for not serving a copy within twenty days after a demand thereof, a copy is served by leaving it at the office of the defendant's attorney, and he neither refused to receive it nor did he offer to return it until after the lapse of fifteen days, when he returned the copy complaint with a notice that he disregarded it,-on the hearing of the motion to dismiss the complaint for not serving the copy within twenty days after the demand thereof, the court granted the motion, with leave to the plaintiff to serve a copy of the complaint within five days, on payment of costs; and the court said, The affidavits do not “show an express waiver by the defendant's attorney of this motion. But it is contended that the doctrine of waiver should apply. Had the copy complaint been served before the notice of motion, and the attorney received it without objection, or, if he had no opportunity to object, had retained it without giving notice that he should disregard it, I should not hesitate to apply the doctrine of waiver. Though the service may not be made in time, still it may be good if the attorney consents to accept the service. He may waive the right which the statute gives him of having a copy of the complaint served upon him within the twenty days; and when service is made after that time he should refuse to accept the service, or should return the complaint promptly, or at least give notice that he should disregard it, so that the plaintiff's attorney may be advised that he is not to rest in security upon the belief that service has been accepted, and so that he may take promptly the proper steps to be relieved, that is, obtain permission to serve a copy of the complaint, notwithstanding the time for service has expired. (See Wirts v. Norton, 25 Wend., 699; 3 Hill, 476; 1 Pr. R., 240; 2 ib., 146; 3 ib., 64.)" But where the service of the copy complaint is not until after service of notice of motion to dismiss for the nonservice, the doctrine of implied waiver does not apply.

b. Where a summons in the form required by the second subdivision of section 129 contained the names of several parties as defendants, and was served, without any copy of the complaint, on one only of the parties named as defendants, and he appeared and demanded a copy of the complaint, which was served, but which contained only the name of the party served as defendant, and no proceedings were had against the other parties named as defendants,—the defendant served moved to set aside the summons, and for a dismissal of the complaint for neglect of the plaintiff to serve a complaint against all the parties named as defendants in the summons. The court denied the motion, and said, The defendant served “has no right to ask the court to dismiss the complaint with costs in favor of the other defendants, under section 274. It is for those defendants to make the motion, and not the party served. Those parties have not appeared, and are non-residents of the State. Whether the plaintiff will proceed against them or not, cannot affect the defendant served. Indeed, it appears the plaintiffs do not intend to proceed against them. It will be time enough to decide the question when they invoke the aid of the court.” Travis v. Tobias, 7 Pr. R., 90.

c. A party named as a defendant in the summons, but who has not been served, cannot voluntarily appear and move to dismiss the complaint under this section, " unless he has some right tu protect which renders such appearance necessary.

a

Thus, where an injunction had been granted affecting the rights of a party not served with a subpæna, be was allowed to appear voluntarily, and join in a motion to dissolve the injunction. (Waffle v. Vanderheyden, 8 Paige, 45.) So in the Georgia Lumber Co. v. Bissel (9 Paige, 226), it was held that a defendant arrested upon a ne ereat might, without waiting for the service of a subpena, enter bis appearance, and demand a copy of the bill.” Tracy v. Reynolds, 7 Pr. R., 327. See note to section 139, p. 157 ante,

a. A motion for judgment for not serving a copy of the complaint must be made in the district, or a county adjoining the county, in which the summons states the complaint will be filed (Johnston v. Byran, 1 Code Rep., N. S., 46), for if no complaint be filed it will be presumed that the place of trial of the action is the county where the summons states the complaint will be filed. 16.

Dismissing complaint for not proceeding to trial. b. Where a defendant notices the cause for trial and omits an opportunity to move it at the circuit, he cannot afterwards move at special term, for a dismissal of the complaint for the plaintiff's neglecting to proceed to trial. McCarty v. Hancock, 1 Code Rep. N. S., 188.

c. Either party may give notice of hearing; and where both parties dotice the cause, neither can charge delay or default upon the other for not bringing the cause to a hearing. Thompson v. Krider, 8 Pr. R., 248, per Welles, J.; but in Roy v. Thompson, 8 Pr. R., 253, Bosworth, J., with the concurrence of all the justices of the superior court, held that in order to entitle a defendant to move for a dismissal of the complaint, he was not bound himself to notice the cause for trial, but might make the motion in all cases where the plaintiff had neglected to bring the cause to trial according to the course and practice of the court. "The affidavit, however, upon which the motion is founded, must show that the cause was at issue in time to have it noticed, and that at the term for which it ought to have been noticed younger issues had been tried."

d. On a motion by defendant to dismiss the complaint for the reason that the plaintiff did not bring the cause to trial at a previous circuit, held that the defendant was not guilty of laches, in moving where but one general term had intervened, and no special term having been held before that general term, at which the defendant could have noticed the motion. Hawley v. Seymour, 8 Pr. R., 96.

e. Where the defendant has been offered his costs of circuit, and it does not appear that they have ever been made out or adjusted in any way, or he prepared to receive them, he is not entitled to a dismissal of the complaint for not bringiog the cause to trial at the circuit. Ib.

f. It is no sufficient answer to a motion to dismiss the complaint for want of prosecution, to say that the plaintiff is dead, that no representative can be found to revive the action, but that the attorney hopes to find a representative. Crawford v. Whitehead, 1 Code Rep. N. S., 345.

g. The dismissal of a complaint is equivalent to judgment, as in case of nonsult under the former practice, and is a substitute for it. Per Johnson, J., in Holmes F. Slocum, 6 Pr. R., 218.

h. Where a defendant gave notice of a motion for judgment, as in case of a nonsuit for not proceeding to trial, it was held that under such a notice he might take an order dismissing the complaint, Cusson v. Whalon, 1 Code Rep. N. S., 27; and in that case it was held, that where a plaintiff unreasonably omits to notice a cause for trial at the next circuit after issue joined, and after the time to amend the last pleading shall expire, the defendant may move to dismiss the complaint, and unless he ask additional relief may on such a motion take a dismissal of the complaint, and enter judgment for his costs. 16.

i. Issue is considered as joined for all purposes, except amendment, immediately on the service of a reply, or of an answer setting up no new matter, or if it be an action commenced after an answer of title in a justice's court, on the service of the

Ib.

answer.

a. Where a plaintiff stipulates to try at the next circuit, it means the next circuit for which there is time to give a regular notice. Jackson v. Phenix Bunk, 5 Wend., 101.

b. Where the plaintiff notices the cause for trial at the circuit, and by agreement of the counsel on both sides it is set down for a future day in the circuit, and before that day arrives the jury are discharged and the circuit adjourns sine die, it is a waiver by the defendant of a motion for a dismissal of the complaint and for judgment for not bringing on the trial by plaintiff previous to the cause being set down. Fuller v. Sweet, 9 Pr. R., 74.

c. A defendant may move for judgment as in case of a nonsuit (dismissal of the complaint) in a cause which has been referred, notwithstanding that he has stayed the plaio tiff's proceedings until security for costs can be filed. Champlin v. Petrie, 4 Wend, 209.

d. In an action against two defendants, severally liable, where one defendant only is served with the summons, who does not notice the cause for trial, if the plaintiff notices the cause for trial against the defendant served, but fails to bring it to trial when reached on the calendar, the defendant served may move for judgment for a dismissal of the complaint. Bishop v. Morgan, 1 Code Rep. N. S., 340.

e. In an action against two defendants, in which only one puts in an answer, the defendant so answering may move for a dismissal of the complaint, for delay in the prosecution of the suit. Hoyt v. Loomis, 1 Code Rep., 128.

f. In an action to recover possession of personal property, after a stipulation to try, the plaintiff again neglected to bring the cause to trial, but entered a rule to discontinue, and tendered the costs—held that the defendant could not move for a dismissal of the complaint and judgment for a return, and that his remedy was, himself to notice the cause for trial, and then take such judgment as the circumstances of the case required. Wilson v. Wheeler, 6 Pr. R., 49.

g. Where a new trial is granted on application of the defendant, a copy of the order must be served on the plaintiff's attorney before the defendant can move for a dismissal of the complaint for not proceeding to trial. Otherwise, where a new trial is granted on motion of the plaintiff. Robb v. Jewell, 6 Pr. R., 276.

h. A cause was reached on the circuit calendar, and called on for trial by the defendants, who were ready with their witnesses in attendance. The plaintiff ap. plied to postpone the trial, but his application was denied; he then gave notice of discontinuance, and made a tender of costs. Ten days afterwards, but during the same circuit, the judge at the circuit, on reading affidavits and after hearing counsel on both sides, made an order dismissing the complaint with costs, and directing an extra allowance. From this order the plaintiff appealed, and contended that the judge had no jurisdiction to make such order; and that as the order was not moved for when the case was called, and the cause was passed, it was as to that circuit out of court. The appeal was denied, and per Curiam : “The universal practice is at variance with the appellant's proposition. Motions are continually made at circuit in causes which have been passed on the calendar.Moffatt v. Ford, 14 Barb, 577.

i. “ The dismissal of a complaint under the code in an action at law, we are clearly of the opinion, has no other effect than that of a nonsuit under the former practice. There is a change of name, and nothing more.

Whether an a beolate bar may not be created by the dismissal of the complaint when no other than equitable relief is sought, and the cause has been heard at special term, is a different question, upon which we are not to be understood as intimating any opinion." By the court, Harrison v. Wood, 2 Duer, 50.

$ 275. [231.] The relief to be awarded to the plaintiff.

The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any

relief consistent with the case made by the complaint, and embraced within the issue.

a. Where a complaint alleged a loan of money to the defendants to enable them to purchase land; and that such loan was on the condition that after purchase of the land the defendants would secure the repayment of the loan by a lien on said land ; that the purchase had been made, but the defendants refused to secure the repayment of the loan by a lien on the land; and the relief prayed was, that the defendants should be decreed to execute a mortgage on the said lands to secure repay. ment of said loan, or that the plaintiffs might have such other or further relief as the court might deem proper ; the answer denied all the material allegations of the complaint. The cause was tried by the court without a jury, and it was decided that the plaintiff was not entitled to the specific relief prayed, but was entitled as against one defendant to judgment that he recover $300 and interest; but on appeal to the general term, the court, Parker, J. dissenting, held, that the plaintiff, having failed to establish an equitable lien, was not entitled to recover the money advanced, but that the complaint should be dismissed against both defendants. Mar. quat v. Marquat, 7 Pr. R., 417.

$ 276. [232.] Rate of damages where damages are recoverable.

Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action.

h. “As all distinctions resulting merely from the form of the action are now abolished, it appears to be a necessary consequence that, as a general rule, every action for the breach of an executory contract, whether the agreement contains a penalty or not, must be considered as an action for damages, in wbich the amount of the recovery will be limited only by the proof, and by the sum for which judg. ment is demanded in the complaint. The only exception will be when from the nature of the contract, and tho terms in which it is expressed, damages as liquid. ated by the parties may be justly treated not as a penalty but as a contingent debt; for this is a distinction in law which the code has not abolished nor affected." Per Duer, J. in Beale v. Hayes, 5 Sand., 645.

$ 277. Judgment in action for recovery of personal property.

In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.

Where the plaintiff succeeds in an action to recover the possession of personal property, in which he has not claimed the delivery of the goods, he may enter judg.

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