Cohn agt. Husson.

the renewal note and tendered it back before he could maintain this action on the old note. He now asks leave to serve a supplemental complaint in which he will be permitted to allege "that a note pleaded in defendant's answer as payment to the note in suit was not paid and is in possession of the plaintiff, and that he may tender the same on the trial.”

Whether the permission, if accorded, to allege these facts in a supplemental complaint will enable the plaintiff to recover or not, I do not seek to determine. That they are facts which have arisen since he served his complaint, will not be disputed, and as the general term did not question the plaintiff's right to maintain his action upon the original note, but held that the right was suspended until the renewal note was dishonored, it appears to me the facts he now desires to allege by supplemental complaint as to its dishonor, and his possession of it, are "material facts."

As the averment of such facts is sought to aid a recovery upon the original cause of action founded upon the old note, and neither to add nor substitute a new controversy arising out of any transaction occurring since suit brought, I think the relief ought to be granted.

That a supplemental complaint will not be allowed, where it attempts to introduce an independent, substantive cause of action growing out of later facts, upon which a judgment could be rendered without reference to the original complaint, is well settled, and the cases cited by the learned counsel for the defendant amply support that view; but, on the other hand, they are not in conflict with the proposition that new matter may be alleged in aid of the original cause of action, which occurred subsequently to the commencement of the suit.

The case of Muller agt. Earle (reported in 5 N. Y. Supr. Ct. R., 388), was an action originally commenced as one for equitable relief, to ascertain and determine the amount due to the plaintiff for erecting certain buildings, in which he demanded an injunction as a part of the relief sought, restrain

Cohn agt. Husson.

ing the comptroller (who was also made a party) from paying and the defendant Earle from receiving a sum of money named. At the trial his complaint was dismissed, but after a new trial had been granted he moved for leave to change his action, either by amendment or supplemental complaint, to a mere money demand on contract, for the reason that the whole amount of the award which was in the comptroller's hands when he brought his suit had been actually paid over to the defendant. Justice FREEDMAN (at p. 391) justly decided the application to be an attempt on the part of the plaintiff to withdraw the action pending and substitute another and an entirely different cause of action, which occurred after the institution of the first suit.

The case of Bostwick agt. Menck et al. (4 Daly R., 68) was an action brought by plaintiff as receiver in proceedings supplementary to an execution issued against the defendant Beiser, upon a judgment recovered against him by one Dolan, to set aside a general assignment made by Beiser to the defendant Menck for the benefit of his creditors. After trial, resulting in a judgment in plaintiff's favor, and a reversal by the court of appeals which ordered a new trial, plaintiff asked leave to file a supplemental complaint alleging the recovery of six other judgments against Beiser since he brought his action, and his appointment as receiver in each of them. The court at general term decided that as the supplemental complaint sought to be filed stated no matter which aided or varied the case presented by the original complaint, nor in any way supported the rights of the judgment creditors mentioned therein, but alleged and presented claims on behalf of other creditors which was entirely independent, and wholly unaffected by the pleadings interposed, the issue of a supplemental complaint should not be allowed, for they were really six new causes of action by other claimants having distinct interests from those represented by the original complaint.

But this case presents a widely different aspect. Here the same consideration upon which the recovery is sought under

Callanan agt. Gilman.

The one was a mere

the old note was continued in the new. renewal or extension of the other. No different or additional cause of action is attempted to be set out, the recovery will still be sought upon the original cause of action. The averment of the subsequently occurring fact as to the renewal note maturing after the commencement of the action, and its being dishonored, is not intended to enlarge or change the prayer for relief, nor to alter the character of the issue, but is rather intended to support a recovery upon the original cause of action, which is still to be based upon the right to relief on the note in suit.

The case of Fincke agt. Rourke (20 Hun, 264) is somewhat analogous in principle to this action as regards the relief sought by plaintiff.

An order will be granted that plaintiff have leave by supplemental complaint to allege the fact that a note pleaded in defendant's answer as payment to the note in suit was not paid and is in possession of the plaintiff, and to pray that he may tender the same on the trial.

N. Y. SUPERIOR COURT.

LAWRENCE J. CALLANAN and JAMES KEMP agt. GEORGE F.

GILMAN.

Street obstructions What are, and when a public nuisance - When may be restrained at the suit of an individual — Answer· - Form of denial bad.

Where defendant in his answer denies "specifically each and every allega tion of the complaint, except those hereinafter admitted, qualified or explained: "

Held, that this form of denial is bad and the allegations of the complaint must be held to be admitted by the defendant.

Any unauthorized continuous obstruction of a public street is a public nuisance for the reason that the public are entitled to an unobstructed passage upon the streets and sidewalks of the city.

The placing of skids across the sidewalk in front of a party's premises is

Callanan agt. Gilman.

a great inconvenience to the public and may be restrained at the suit of an individual who has sustained a private injury thereby.

Special Term, September, 1884.

TRUAX, J.-The plaintiffs allege in their complaint among other things, that the defendant obstructed the sidewalk with intent to injure the plaintiffs; that such obstruction prevents the plaintiffs and their employes and patrons from passing and repassing along the sidewalk, to the detriment and great injury of plaintiffs and their business; that such obstruction is maintained every day from three to five hours, and averages fully four hours each day during the business hours of the day; that the defendant has been requested to remove such obstruction but he refuses to do so to the great and irreparable injury of the plaintiffs; that such obstruction is a public nuisance of special injury to the plaintiffs for which they have no adequate remedy at law and cannot be adequately compensated in damages. The defendant denies "specifically each and every allegation of the complaint except those hereinafter admitted, qualified or explained." This form of denial is bad, and it must be held that the above allegations of the complaint are admitted by the defendant (Yuce agt. Alexander, 49 Sup. Ct. R., 205, and cases there cited; Clark agt. Dillon, 4 N. Y. Civ. Pro. [Browne], 245). It has long been held by the courts of this state that any unauthorized continuous obstruction of a public highway or street is a public nuisance (Davis agt. The Mayor, &c., 14 N. Y., 506; Trenor agt. Jackson, 15 Abb. [N. S.], 115). The reason is that the public are entitled to an unobstructed passage upon the streets and sidewalks of the city (Clifford agt. Dam, 81 N. Y., 52). The obstruction caused by the defendant is unauthorized. The board of aldermen cannot authorize a public nuisance (Trenor agt. Jackson, supra; Ely agt. Campbell, 59 How., 333; People agt. Mayor, 59 id., 277; People agt. Mayor, Daily Register, April 23, 1884, BARRETT, J.; see, also, Metropolitan Tel. Co. agt. Colwell Lead Co., Daily Register, Aug. 13, 1884, INGRAHAM, J.).

Callanan agt. Gilman.

The defendant has admitted in his answer that the obstruction is a public nuisance, and the facts proved on the trial show that the obstruction was continuous.

This case is similar to the case of Rex agt. Russell (6 East, 427), in which it was held that a wagoner who occupies one side of a public street in a city, before his warehouse, in loading and unloading his wagons, for several hours a day, and who has at least one wagon usually standing before his warehouse, so that no carriage can pass on that side of the street, and sometimes foot passengers were inconvenienced by cumbrous goods lying on the ground on the same side ready for leading, is indictable for a public nuisance, although there were room for two carriages to pass on the opposite side of the street. The court said that it should be fully understood that the defendant could not legally carry on any part of his business in the public street to the annoyance of the public; that the primary object of the street was the free passage of the public, and anything which impeded that free passage, without necessity, was a nuisance; that if the nature of the defendant's business was such as to require the loading and unloading of so many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises or remove his business to some more convenient spot (See Trenor agt. Jackson, 15 Abb. [N. S.], 126; Taylor's Landlord and Tenant, 193, and cases there cited).

No doubt the skids used by the defendant are a convenience to him, but extending from a wagon at the curb across the sidewalk they are a great inconvenience to the public and the plaintiffs. The defendants admit (and I have so found) that the plaintiffs have sustained private injury, and for this reason, if for no other, they are entitled to an injunction restraining the defendant from using the skids (Trenor agt. Jackson, 15 Abb. [N. S.], 126, and oases there cited).

Judgment is ordered for the plaintiffs, with costs.