The opinion
Boardman, J.
The summons was in proper form. The action was not for the recovery of money only. The rent was payable in wheat. To ascertain the amount of damages plaintiff had suffered by non-payment of rent in wheat, it was necessary to ascertain by evidence the value in money of wheat when the rent was due. In an action on a note or contract payable in chattels, though the action is upon contract and the end aimed at is the recovery of money, the summons should be for relief, because something else is necessary than a mere computation of the amount due. 1 Wait’s Pr. 477. Evidence must be taken of the value of the chattels at the time and place of delivery, and therefrom the damages must be assessed and determined. Upon a default in such a case the clerk cannot enter judgment, because something else than a mere computation is necessary.
In such cases it is not an action on contract for the recovery of money only. The value of property is to be ascertained, and the money damages assessed and determined upon evidence. Such we are satisfied is the correct rule as applied to this case, but as a general rule such motions should be denied when the party by inspection of the complaint is not misled and cannot be harmed thereby. Technical objections in such cases should not be encouraged. McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176 ; Hemson v. Decker, 29 How. 385 ; Brown v. Eaton, 37 id. 325.
The order of the special term should be reversed with $10 costs of this case, and expenses of printing in each of the four cases, and the motion denied, with $10 costs in each case.
Ordered accordingly.