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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

[Nov.

Appellate Division.

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 originally 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

1900]

Shepard & Morse Lumber Co. v. Hurd.

as the plaintiff, in its complaint, alleged, by the trust company individually or as trustee for others, to the amount of $220,000. The plaintiff's lien thereon was subject to the lien of the trust company. Default on the part of Hurd was alleged, and that there was due to plaintiff on the debt secured the sum of $85,000 after applying all the proceeds of any of the mortgaged property which had come to the hands of plaintiff. It was also alleged that the trust company afterwards, in violation of the rights of the plaintiff, unlawfully, and without receiving the value thereof, disposed of the bonds which it held, and allowed them to be used and canceled by the defendant Southard, its president, in the purchase by him on the 25th of May, 1895, of the property and franchises of the railroad company upon the foreclosure of the mortgage given to secure the payment of the bonds, and that the bonds were then worth their full face value. The plaintiff demanded judgment for the foreclosure of its lien and a sale of the property to satisfy the same, and for a judgment against

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

or more extensive relief, he may have such relief by setting out such new matter in a supplemental bill.

Candler v. Pettit, 1 Paige, 168.

Plaintiff cannot, by supplemental complaint, for the I

wing that at the time at which the action was commenced he ... a cause of action, plead acts, subsequently done by him to supply the deficiency in the facts upon which his right of action depended, which were suggested to him in order to meet the objections raised upon the trial of the case before the special term, and upon appeal to the general term where it was decided that he had no cause of action.

Farmers' Loan & Trust Co. v. United Lines Telegraph Co., 47 Hun, 315; 14 Civ. Pro. 187; 14 St. Rep. 269; 28 Week Dig. 183.

Where, in an action brought under the stock corporation law to enforce the liability of stockholders for a debt of the corporation on the ground that the stock of the company had not been fully paid in, judgment had not been recovered by the plaintiff against the corporation and an execution thereon returned unsatisfied as required by said law before bringing such action, but the complaint alleges, as an excuse for not complying with the statute, that a proceeding for the voluntary dissolution of the corporation had been comemnced by a majority of the directors, with the connivance

Appellate Division.

Hurd for any deficiency; also that the trust company be adjudged chargeable with the value of the bonds, and liable to pay the plaintiff for any deficiency. There were some other allegations in the complaint, not important, however, to the question before us. The defendant the trust company, in its answer, among other things, denied the allegations of the plaintiff as to the amount due the plaintiff, and denied any improper disposi tion of the bonds, and alleged that the debts for the payment of which the bonds were pledged as security amounted to the sum of $250,000 besides interest, of which the sum of $150,000 being a loan made by the trust company individually to the railroad company, was the first lien; that the debt was not paid at maturity, and thereupon, in accordance with the terms of the loan, the bonds were sold at public auction, after due notice given to the plaintiff and all others in interest, for the sum of $169,000, and the proceeds of the sale applied upon the debt.

[Nov.

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

and procurement of the defendants, that an order had been made therein appointing a receiver of the corporation, which was insolvent, and enjoining and restraining all persons, and especially creditors, from bringing any suit against said corporation, plaintiff cannot allege by a supplemental complaint that, since the commencement of the action, a final order dissolving the corporation has been granted, as such an allegation sets up a new and different cause of action, which cannot be allowed to aid the defective complaint.

United States Glass Co. v. Levett, 24 Misc. 429; 87 St. Rep. 688; 53 Supp. 688.

Where, in an action for malicious prosecution in bringing an action in the United States circuit court, the complaint alleged the termination of such action by the rendition of a verdict for defendant, and the answer averred that the entry of judgment upon such verdict had been stayed and that the action in the circuit court was, at the time of the commencement of this suit, still pending and undetermined, plaintiff cannot set up, by sup plemental complaint, that, since the commencement of his action, the mo tion for a new trial in the circuit court case has been denied and final judg ment entered therein, as, unless the suit in the circuit court was terminated by the verdict, there was no cause of action stated in the original complaint.

1900]

Shepard & Morse Lumber Co. v. Hurd.

The defendant Hurd answered, putting at issue the amount due the plaintiff, and also claiming that the trust company should account for the value of the bonds. Some of the other defendants answered, claiming to be creditors of Hurd, and to have a lien, subject to the plaintiff's on the logs mortgaged to plaintiff, and on the bonds; and they made allegations similar to those made by the plaintiff as to the improper disposition by the trust company of the bonds, and its liability for the full value. The case was referred to a referee for trial and determination, and a large amount of evidence was given by the plaintiff relating to the accounts between the plaintiff and Hurd, with a view to the ascertainment of the amount due to the plaintiff upon the debt secured by the mortgage and transfer. The plaintiff and Hurd, on January 8, 1897, made an agreement in writing or stipulation fixing the amount due the plaintiff at the

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

Continental Construction & Improvement Co. v. Vinal, 14 Civ. Pro. 293; 15 St. Rep. 968; 1 Supp. 200; 28 Week. Dig. 570.

A supplemental complaint cannot be filed setting up facts which did not exist at the commencement of the action, while a judgment on demurrer determining that the facts alleged in the original complaint constituted no cause of action is still in force.

Berford v. N. Y. Iron Mine, 57 Super. 404; 29 St. Rep. 207; 8 Supp.

193.

d. Cause of action arising after commencement of suit.

A new and substantive cause of action cannot be set up by supplemental complaint as a ground of recovery, more especially a cause of action to which the plaintiff was not entitled when he commenced the action.

Tiffany v. Bowerman, 2 Hun, 643.

A person must have the right to recover at the time when he commences his suit and cannot set up by supplemental complaint an assignment to him of a cause of action which did not exist in his favor until after the commencement of the action.

Staunton v. Swann, 10 Civ. Pro. 12.

In the case of Haddow v. Lundy, 59 N. Y. 320, the court said, "Where the plaintiff had no title when the bill was filed, he could not set up by way of supplement a title subsequently acquired by purchase from another."

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