MARTHA A. SMITH and Others, Appellants, v. MARY I. BACH, Formerly MARY I. VANDEWATER, Respondent, Impleaded with EMANUEL WEISS. Rule that agreements as “to the proceedings in a cause” be in writing — it does not apply to an agreement of settlement — scope of a supplemental complaint. Rule 11 of the General Rules of Practice, which requires agreements or consents "in respect to the proceedings in a cause to be in writing, does not apply to an agreement in settlement of an action. A party is not entitled to set up by a supplemental complaint a new and different cause of action which did not exist at the time of the commencement of the action. APPEAL by the plaintiffs, Martha A. Smith and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 7th day of January, 1903, denying the plaintiffs' motion for leave to serve a supplemental complaint. J. Baldwin Hands, for the appellants. Clarence D. Cruikshank, for the respondent. GOODRICH, P. J.: The complaint alleges that William R. Smith, now deceased, father of the plaintiff and the defendant Bach, in 1892, conveyed to the latter certain real estate at Rockaway Beach (known as the Revere House), on the agreement that she hold said premises and col App. Div.] SECOND DEPARTMENT, MAY TERM, 1903. lect the rents thereof for the joint benefit of herself and the plaintiffs; that the father died intestate, in 1900; and that the premises were leased to and were in possession of the defendant Weiss at a yearly rental of $1,200. It was not alleged how much rental Mrs. Bach had received, but it was alleged that accounting and payment had been demanded and refused and that Weiss was in arrears $400. The plaintiffs prayed for a conveyance of their half and for an accounting. Shortly after the action was commenced, the attorneys for the respective parties made an arrangement for a settlement by which Mrs. Bach was to convey the premises to the plaintiff Martha A. Smith, and execute a bill of sale of the fixtures and furniture on the premises and assign to her the lease of said premises to the defendant Weiss. Said plaintiff was to indemnify Mrs. Bach against all liens on the property. Out of the $400 due from Weiss, the defendant was to receive $275, and the plaintiffs $125. In pursuance of this arrangement, said plaintiff executed the indemnity agreement, and Mrs. Bach executed the deed, bill of sale and assignment of lease. The documents were exhibited to and approved by the attorneys, and left in their possession respectively. They were not delivered, however, because Weiss had not paid the rent. Mrs. Bach afterwards obtained judgment against Weiss and issued execution thereon, which was returned unsatisfied, and he was examined in supplementary proceedings in October, 1902. Mrs. Bach afterwards settled the judgment for $200 and satisfied it of record. Her attorney thereafter, on October eighteenth, wrote the plaintiffs' attorney that negotiations were ended, to which the latter declined to accede. Defendant Bach answered on October twenty-first, denying the allegations of the complaint. Plaintiffs moved for an order directing the defendant Bach to deliver to the plaintiffs the papers executed by Martha A. Smith, and to strike out the answer as interposed in bad faith and after settlement and granting the plaintiffs leave to serve "a supplemental complaint setting up the settlement of this action." This motion was denied and the plaintiffs appeal. The plaintiffs abandon all of their contention except that part which relates to the service of a supplemental complaint. The right to such relief does not depend upon rule 11 of the General APP. DIV.-VOL. LXXXII. 39 SECOND DEPARTMENT, MAY TERM, 1903. [Vol. 82. Rules of Practice as the defendant contends. That rule requires agreements or consents "in respect to the proceedings in a cause to be in writing. The alleged agreement between the plaintiff Martha A. Smith and Mrs. Bach did not relate to the proceedings in an action referred to in the rule, but to an agreement of settle. ment of the controversy. There is no proposed supplemental complaint in the record, but it is evident from the moving affidavits that the contract which the plaintiffs desire to set up and enforce under a supplemental complaint is a new and different cause of action from that upon which the present action is brought. A party does not have the right to set up by a supplemental complaint a cause of action which did not exist at the time of the commencement of the action. (21 Ency. Pl. & Pr. 20; Farmers' Loan & Trust Co. v. U. L. Tel. Co., 47 Hun, 315; 14 N. Y. St. Repr. 269; Continental C. & I. Co. v. Vinal, 15 id. 968.) The order should be affirmed. WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. ALZIRE A. FLICK, as Administratrix, etc., of JOHN H. STAHL, Deceased, Respondent, v. WILLIAM W. PENFIELD, Appellant. (Nos. 1 and 2.) Evidence -personal transactions with a decedent — what testimony of an administratrix is a waiver of objection to the adverse party's testifying in respect thereto. In an action brought by an administratrix to recover upon several promissory notes made by the defendant to the order of her intestate, the defendant, in support of his defense of payment, put in evidence a number of checks drawn by him to the order of the intestate and which had apparently been collected by the intestate. The administratrix, for the purpose of showing that these checks related to other transactions, testified that the intestate had, for a number of years, been in the habit of cashing checks for the defendant, but stated that she did not know of any particular check which had been so cashed. Held, that the effect of the testimony of the administratrix was the same as though she had specifically testified that the checks in controversy had been App. Div.] SECOND DEPARTMENT, MAY TERM, 1903. cashed by her husband, and that, by giving such testimony, she waived her right under section 829 of the Code of Civil Procedure to object to the competency of the defendant to testify to the conversation which the latter had with the intestate at the time he delivered to the intestate the checks in controversy. APPEAL by the defendant, William W. Penfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 8th day of October, 1901, denying the defendant's motion for a new trial made upon the minutes. Isaac N. Mills [ William A. Ferguson and Charles W. Sinnott with him on the brief], for the appellant. George C. Appell, for the respondent. WILLARD BARTLETT, J.: This action is brought by an administratrix to recover a sum alleged to be due upon several promissory notes made by the defendant to the order of her intestate. The defense was payment, and in support thereof the defendant put in evidence a number of checks drawn by him to the order of the intestate and which the intestate appeared to have collected. The amount of these checks taken together would have sufficed to pay the defendant's indebtedness upon the notes in suit. To show that they were not really given in payment and related to transactions having nothing to do with the notes, the administratrix gave testimony to the effect that her husband, the intestate, had frequently cashed checks for the defendant at his request. Thus she testified: "I know about his cashing checks for Mr. Penfield at different times. I saw it done about once a month or once a week, how often just I could not say. I guess this was going on about six or seven years. I see him cash checks. I see Mr. Penfield write out the check and my husband would give him the money. I cannot tell you how many checks Mr. Penfield had cashed there. I simply know in a general way for 8 or 10 years he had had checks cashed, sometimes once a week and sometimes once a month. I do not know of any particular check that my * * * * * * * * * SECOND DEPARTMENT, MAY TERM, 1903. [Vol. 82. husband ever cashed for him; I could not tell you of any particular check, I could tell you about the amount." When the defendant was called to contradict this testimony he was shown three checks which he claims to have given in payment of some of the notes in suit and asked what conversation took place between him and the intestate at the time he delivered the checks. This question was objected to as incompetent under section 829 of the Code of Civil Procedure; the objection was sustained and the plaintiff excepted to the ruling. The defendant was further asked: "What conversation did you have with Stahl at the time you deliv ered the checks to him?" An objection to this question was also sustained under exception by the defendant. There was no doubt as to the competency of the administratrix to testify as to the transactions between her intestate and the defendant at the time the checks were given, thus showing if she could that they really were given for cash and not in payment of the defendant's notes. It must also be conceded that the giving of this testimony opened the door for the defendant to testify in regard to those transactions. The rulings to which I have referred, however, are sought to be justified on the ground that they did not exclude the defendant's evidence as to any particular transaction to which the administratrix had testified, but merely prevented him from contradicting the plaintiff's version by means of other independent personal transactions between the defendant and the decedent. But it will be observed that the testimony of the administratrix was general in its terms. She did not testify that the particular checks or any one of the particular checks, which the defendant produced as evidence that he had paid the notes, had actually been cashed by the decedent. Her testimony was merely to the effect that the decedent had been in the habit for many years of cashing checks for the defendant, and from that fact she sought to have the jury inferand we cannot say that the jury did not infer that these particular checks produced by the defendant had really been cashed by her husband and not received by him in payment of the notes. In other words, the effect of her testimony, though general in its terms, was just the same as though she had specifically testified that these particular checks were cashed by her husband. Under these circumstances it seems to me that the defendant was entitled to show, |