The moving papers seem to have- been *99prepared and the motion made upon the supposition that the action in which the plaintiff entered judgment, was the one commenced in April, and one of the points of the defendant’s counsel, is to the effect that the agreement to arbitrate operated to discontinue this action. But the opposing affidavits clearly show that the action commenced in April was discontinued, after the time fixed by the agreement to arbitrate, for the arbitrators to make their award had expired, and that the present action was commenced afterwards.
The only question that remains to be considered is whether this is an action in which the plaintiff could regularly take judgment without having his damages assessed by the clerk or a sheriff’s jury ? I entertain no doubt but that the plaintiff was regular in taking judgment for the amount mentioned in the summons and demanded in the complaint, nor that the summons was in the proper form. 1. It is an action arising on contract. 2. It is also an action for the recovery of money only. 3. The complaint was duly verified. 4. The defendant had failed to answer the complaint within the time allowed by the Code. The case is thus brought within the 1st subdivision of § 246, where the clerk is required to enter judgment against the defendant for the amount mentioned in the summons. In Cook agt. Pomeroy, (10 How. Pr. R. 103,) I had occasion to examine this section of the Code with some care, and I still adhere to the views expressed in that case. I am aware that my brother T. B. Strong, in Johnson agt. Paul, (14 How. Pr. R. 454,) has held a different view in some respects. But with the highest respect for his legal accuracy, I find myself unable to concur with him in the distinction which he draws between actions on contract for the breach of a stipulation to do a specific act and those for the non-payment of money agreed to be paid, as applied to the section of the Code in question. In his opinion he takes no notice of the case of Cook agt. Pomeroy. Probably his attention was not directed to it.
The motion to set aside the judgment is therefore denied, with $10 costs of opposing. The defendant to have leave to answer the complaint and defend the action, on payment of all *100the plaintiff’s costs since serving the summons, together with said costs of opposing this motion. The judgment, execution and levy to stand, as security, &c.