county of Niagara and there it has its residence. Code Civ. Pro. § 3343, subd. 18; Speare v. Troy Laundry Machinery Co. 44 App. Div. 390; 94 St. Rep. 1080; 60 Supp. 1080; Rossie Iron Works v. Westbrook, 59 Hun, 345; 36 St. Rep. 555; 13 Supp. 141; Rector v. Ridgewood Ice Co. 38 Hun, 293. The plaintiff is a foreign corporation. It is not a resident of the state of New York. On the contrary, it is a resident of the state of Pennsylvania. It came into existence under the statutes of that state, and in that state alone it has its domicile and residence. Plimpton v. Bigelow, 93 N. Y. 592; Stevens v. Phoenix Insurance Co. 41 N. Y. 149. The fact that the state of New York has issued to it the certificate provided by statute (Laws 1892, c. 687, §§ 15, 16) authorizing it to do business

PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION,—continued.

fendant is the proper county for the trial of an action for malicious prosecution brought by it against a resident of this state.

Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99; 84 St. Rep. 135; 50 Supp. 135.

b. Municipal corporation.

The laws of 1898, chapter class, provides as follows:

1

182, being the charter of cities of the second "The place of trial of all actions or proceedings against the city, or any of its officers, boards or departments, shall be the county in which the city is situated."

Part of § 461 as am'd by laws 1899, chap. 581.

An action against a city of the second class to recover possession of real property not situated in the county in which the city is located can be brought in the county in which the real property is situated, since the charter was only intended to apply to transitory actions.

Czarnowsky v. City of Rochester, 55 App. Div. 388; 100 St. Rep. 931; 66 Supp. 931, aff'd 165 N. Y. 649 ; N. E.

The Greater New York Charter, laws of 1897, chapter 378, § 262 provides as follows: "The supreme court shall have exclusive jurisdiction over all actions or special proceedings wherein The City of New York is made a party defendant, and all such actions shall be tried in that county wholly or partly embraced within The City of New York in which the cause of action arose, or in the county of New York, subject to the power of the court, to change the place of trial in the cases provided by law."

1900]

Remington & Sherman Co. v. Niagara County Nat. Bank.

in the state of New York does not in any way affect its residence. It was a foreign corporation before the certificate was issued, and it remained so thereafter. It follows, therefore, that, inasmuch as the only county within which one of the parties resided at the commencement of the action was the county of Niagara, the action must there be tried. That being the proper county, the court had no discretion in the matter, and the defendant's motion to change the place of trial should have been granted.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs to abide All concur.

event.

PLACE OF TRIAL OF ACTION BY OR AGAINST CORPORATION,-continued.

Actions against the city of New York must be brought in New York county.

City of Brooklyn v. New York, 25 Hun, 612.

The case last cited was decided under section 8 of chapter 853 of the laws of 1868 which contains practically the same provision as the present charter.

The place of trial of an action for negligence against the corporation of the city of New York is in the county of New York under section 1103 of chapter 410 of the laws of 1882 (the New York city consolidation act) which contains practically the same provision as the present charter.

Getman v. New York, 66 Hun, 236; 49 St. Rep. 158; 21 Supp. 116.

An action to enforce a lien upon funds in the treasury of the City of New York, to which the City of New York was made a party defendant, need not be brought in the county of New York.

Mussen v. Ausable Granite Works, 63 Hun, 367; 43 St. Rep..609; 18 Supp. 267.

In the case last cited it was held, on the ground that it deprived the court of the power to change the place of trial, that section 1103 of chapter 410 of the laws of 1882, which does not contain the provision of the present charter making the place of trial subject to change by the court, was unconstitutional.

SHEPARD & MORSE LUMBER CO. v. HURD et al.

[55 App. Div. 627; 100 St. Rep. 766; 66 Supp. 766.]

Supreme Court, Appellate Division, Third Department. November 14, 1900.

PLEADING SUPPLEMENTAL COMPLAINT MATERIALITY-New Cause of Ac

TION.

Plaintiff sued to foreclose a second chattel mortgage against the mort. gagor and a prior mortgagee who had held in pledge some of the mortgaged property, alleging a certain amount due, and that the defendant mortgagee had disposed of the property without receiving full value, and prayed for judgment charging such mortgagee with the value of

NOTE.-SETTING UP NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING. a. Statute.

b. General rule.

c. When original complaint does not state cause of action.

d. Cause of action arising after commencement of suit.

e. What facts constitute new cause of action.

f. What facts do not constitute new cause of action.

a. Statute.

Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental

1900]

Shepard & Morse Lumber Co. v. Hurd.

the property. After defendants had put in issue the amount due the plaintiff, he agreed with the mortgagor as to the amount due, and also obtained transfers of all the mortgagor's interest. Held, that a supplemental complaint, setting up such agreement and transfer for the purpose of confining the issue to the liability of the second mortgagee was properly denied, since, as to other creditors, the agreement was not conclusive as to the amount due, and was, therefore, immaterial; and, as affecting the liability of the defendant mortgagee, it was a new cause of action.

Appeal from special term, Franklin county.

Action by the Shepard & Morse Lumber Company against John Hurd, Franklin Trust Company and others. From an order granting plaintiff leave to file a supplemental complaint, defendants appeal. Reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

Setting up NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING,-continued.

pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings.

§ 544 Code of Civil Procedure.

b. General rule.

The general rule is that a supplemental pleading cannot be allowed if it sets up a new cause of action or defense, but the new matter thus pleaded must be an addition to or a continuation of the original matter alleged.

Fortunato v. New York, 42 App. Div. 14; 92 St. Rep. 683; 58 Supp. 683. The province of a supplemental complaint is to present such facts, material to the case, occurring after the former complaint, as give aid to, or tend to vary the relief to which the plaintiff was entitled by his original statement of a cause of action, or to perfect an inchoate right so stated, which has since been made or become complete. Such supplemental matter, however, can, with the original complaint, constitute but one cause of action, and if the cause of action sought to be enforced by the original complaint did not then exist, or was defective at the time of the commencement of the action, it cannot be created, cured, or aided, by matters

James McKean (John P. Kellas, counsel), for appellants.

Patterson, Bulkeley & Vankirk (Charles E. Patterson, coun sel), for respondent.

MERWIN, J. This action was brought in June, 1895, to foreclose a chattel mortgage and a transfer of securities executed on May 21, 1891, by the defendant Hurd to the plaintiff as security for a loan of $102,500. The mortgage covered a large quantity of logs, four locomotives then in use on the line of the Northern Adirondack Railroad Company, and also the equity of Hurd in about 900 cars then on the line of that road or connecting roads. The transfer included the equity of Hurd in mortgage bonds of that railroad company of the face value of $420,000, which were then held by the defendant the Franklin Trust Company as security for loans to the railroad company, made,

SETTING UP NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING, -continued.

subsequently occurring. The events or matters subsequently occurring, and sought to be introduced by supplemental complaint, must be such as do not change the rights or interests of the parties before the court, but must merely refer to and support the same title alleged in the complaint, and already presented to the court. A new substantive cause of action cannot be supplied or introduced into the case by a supplemental bill.

Bostwick v. Menck, 4 Daly, 68.

c. When original complaint does not state cause of action.

If, on the facts stated in the complaint, no cause of action exists against the defendant, facts which occurred after suit brought cannot, by supplemental complaint, be made a part of plaintiff's case, so as to turn what is no cause of action into a good one.

Muller v. Earle, 37 Super. 388.

If the original bill is wholly defective, so that no valid decree could be made thereon, a party cannot, by filing a supplemental bill, founded upon matters which have subsequently taken place, sustain the proceeding orig. inally commenced, but if his original bill was sufficient to entitle him to one kind of relief, and facts subsequently occur which entitle him to other