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 .... 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 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 disposition 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. 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 supplemental 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." sum of $66,750. This the referee held did not bind the other defendants, and did not, as the case then stood, relieve the plaintiff from the burden of proving as against them the amount of the indebtedness owing to the plaintiff from Hurd under the instruments of May 21, 1891. Thereupon the plaintiff obtained from the receiver of Hurd in proceedings supplementary to execution and from his trustee in bankruptcy transfers of all the interest of Hurd in the property mentioned in the complaint subject to the original claim of the plaintiff and rights acquired by any of the parties defendant. The plaintiff then made a motion for leave to file and serve a proposed supplemental complaint, which set up the agreement of January 8, 1897, and the transfer to plaintiff from the reeciver and the trustee, and demanded judgment as in the original complaint, and such fur SETTING UP NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING,-Continued. Where plaintiff employed a real estate broker to purchase land from an estate for a certain price and the broker in collusion with defendants sold it to them at a less price acting as the agent of the representatives of the estate whom he did not inform of plaintiff's offer, although he was instructed by them to sell it at the best price he could get, plaintiff cannot file a supplemental complaint setting up the assignment to him, after the commencement of an action against defendants to compel a conveyance of the land to him, of a cause of action to annul and set aside the conveyance which existed in favor of the representatives of the estate against the defendants. Tiffany v. Bowerman, 2 Hun, 643. Where the defense in an action was that plaintiff was not the real party in interest, because he had, prior to the commencement of the action assigned his cause of action, and had been adjudicated a bankrupt and all his estate had passed thereby to his assignee therein, plaintiff cannot allege by supplemental complaint a re-assignment to him of the cause of action and an assignment from the assignee of one who had purchased all the assets of the plaintiff, known or unknown, at a sale made by his assignee in bankruptcy, both of which assignments were made after the commencement of the action. Staunton v. Swann, 10 Civ. Pro. 12. Where a water company executed to defendant a trust deed of its property and franchises to secure coupon-bonds giving to the coupons priority 1900] Shepard & Morse Lumber Co. v. Hurd. ther judgment as plaintiff might be entitled to because of the matters set forth. This motion was granted by the order appealed from. The reason for serving the supplemental complaint seems to be, according to the moving papers, to avoid the necessity of a further examination of the state of the accounts between plaintiff and Hurd, and confine the issue before the referee to the question of the liability of the trust company for the conversion of the bonds and the amount of damages caused to whomsoever it may concern. Setting up in a supplemental complaint the stipulation between plaintiff and Hurd as to the balance due plaintiff does not make it any better evidence against the other defendants. The action, as brought, was to foreclose the mortgages held by plaintiff. Until it established its debt, it had no standing to assert foreclosure. If, by virtue of the recent transfer to SETTING UP NEW CAUSE OF AOTION BY SUPPLEMENTAL PLEADING,-continued. of payment, and the defendant, not having sufficient funds to pay all of the coupons falling due, sold part of them to plaintiff, and thereafter received from the water company sufficient funds to pay them, but refused to pay them upon demand of plaintiff, and plaintiff's original complaint alleged that the plaintiff requested the defendant to allege in the foreclosure suit the water company's default in the payment of these particular coupons, to the end that it might thus secure in that action priority of payment, but the defendant, instead of complying literally with this request, in bad faith amended its bill by setting up, not the actual facts, but merely the plaintiff's claim, with regard to the coupons, and, instead of admitting such claim, declaring that it had no information on the subject, a supplemental complaint alleging the foreclosure decree, made since the action was commenced, denying to plaintiff priority of payment, the sale thereunder, and the fact that, because of such denial of priority, the proceeds of sale were insufficient to pay these coupons, has no relevancy to the cause of action for moneys had and received stated in the original complaint, but sets up another cause of action which did not exist when the original complaint was served. New England Water Works Co. v. Farmers' Loan & Trust Co., 23 App. Div. 571; 82 St. Rep. 948; 48 Supp. 948. Where, in an action brought against a foreign corporation upon a cause of action not arising within this state, the complaint was dismissed as to |