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it from Hurd or his representatives, it became vested with a bet ter right, a cause of action it did not have before, such right on cause of action cannot, by a supplemental complaint, be tacked on to the original, and thus, by transfers subsequent to the com mencement of the action, the cause of action be changed. Tif fany v. Bowerman, 2 Hun, 643; Haddow v. Lundy, 59 N. Y 320, 327; Bostwick v. Menck, 4 Daly, 68; Staunton v. Swann 10 Civ. Pro. 12, 13; Story, Eq. Pl. § 336. Assume that Hurd or his assigns might bring an action against the trust company and all others in interest, and have there determined the liabil ity of the trust company, and have the rights of all parties in the property adjusted, that would be a cause of action that the plaintiff, as assignee after the commencement of the suit, could not bring into this action by way of supplemental complaint; so

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

all the non-resident plaintiffs and continued as to the others and subsequently all the non-resident plaintiff's and other stockholders of the cor poration assigned the greater part of their stock to a resident of this state to enable him to enforce for their benefit the rights incident thereto, plaintiffs cannot file a supplemental complaint making such resident a party plaintiff, as the assignment could not have the retroactive effect of creating the right to enforce a cause of action which did not exist in favor of the assignors when the suit was commenced by them.

Ervin v. Oregon Railway & Navigation Co., 28 Hun, 269.

A counterclaim for extra work performed under a new contract made pending the action for a breach of the original contract cannot be set up by a supplemental answer, for the reason that it is a cause of action not arising out of the original contract set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject of the action, and did not exist at the time of the commencement of the action. Corrigan v. Ritter, 21 Civ. Pro. 82; 39 St. Rep. 311; 15 Supp. 163.

e. What facts constitute new cause of action.

Where matter proposed to be added by a supplemental complaint is a cause of action not connected with the original cause of action, and plaintiff's rights can be enforced by a new action, the court will deny the motion to file such supplemental complaint.

West v. Burns, 2 Law Bull. 55-56.

1900]

Shepard & Morse Lumber Co. v. Hurd.

that the plaintiff is setting up either a new cause of action or something immaterial. The new facts do not aid its right to foreclose upon proper proof, and if they constitute, in connection with the complaint, a different cause of action, they are not in this way available to the plaintiff. The appellants, against one or more of whom a large claim is made for the benefit of the creditors of Hurd and contingently for the benefit of plaintiff, have the right to have the claim of plaintiff, as it existed when this suit was brought, tried and determined in the usual way. It follows that the motion of the plaintiff should not have been granted.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.

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

A complainant cannot file a supplemental bill to introduce facts, which have occurred since the filing of the original bill and constitute a new substantive cause of action upon which a decree can be had without connecting it with the original bill.

Milner v. Milner, 2 Edw. Ch. 114.

A supplemental complaint cannot change an action for the delivery of stock and settlement of an account connected with it into a money demand for damages by reason of a dealing with such stock.

Cheeseman v. Sturges, 19 Abb. Pr. 293.

In an action brought to settle and determine the partnership rights of the plaintiff and of one of the defendants, who assigned to the other defendant by an instrument in form absolute all his right and interest, but at the same time executed a separate instrument, called a defeasance, under which he retained an interest therein, plaintiff cannot, by supplemental complaint, set up a transfer to himself of such interest since the commencement of the action, and such other averments as will call for a determination of the rights of the defendants under the defeasance, because it would change the action in its entire scope and purpose by bringing in and substituting a new and independent cause of action springing out of a transaction between the defendants with which the plaintiff had no connection.

Buchanan v. Comstock, 57 Barb. 582.

Acts of infidelity on the part of the defendant since the commencement of an action for divorce cannot be set up by a supplemental complaint. Morange v. Morange, 2 Law Bull. 30.

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SETTING UP NEW CAUSE OF ACTION BY SUPPLEMENTAL PLEADING -continued

In an action for an absolute divorce additional acts of adultery com mitted by the defendant since the commencement of the action cannot be set up by a supplemental complaint.

Halsted v. Halsted, 7 Misc. 23; 57 St. Rep. 79; 27 Supp. 408.

Neiberg v. Neiberg, 8 Misc. 97; 60 St. Rep. 160; 28 Supp. 1005; 31 Abb N. C. 257.

In an action for a limited divorce the court will deny a motion for leave to file a supplemental complaint alleging adultery and praying an absolute divorce on the ground that the causes of action are incompatible. Hoffman v. Hoffman, 35 How. Pr. 384.

In an action to recover damages for a breach of a contract to construct two marine boilers, defendant can set up by a supplemental answer the fact that a new contract was made pending the action for the construction of two new boilers, which provided that in case they were constructed according to the new contract the action should be discontinued and that defendant had performed the new contract which in effect extinguished the cause of action set forth in the complaint.

Corrigan v. Ritter, 21 Civ. Pro. 82; 39 St. Rep. 311; 15 Supp. 163.

A person, whose claim is founded upon an assignment made to him by the plaintiff prior to the commencement of the action, cannot set up such claim by a supplemental complaint.

Butler v. Cunningham, 1 Barb. 85.

In an action to recover instalments of rent due under a lease of real property, defaults in the payment of rent subsequent to the commencement of the action cannot be set up by supplemental complaint.

Bull v. Rothschild, 16 Civ. Pro. 356; 22 St. Rep. 536; 4 Supp. 826.

In an action on promissory notes, after an answer that the notes had been paid by the acceptance of defendant's bonds in satisfaction, it is improper to allow a supplemental complaint setting forth such bonds and claiming a recovery upon them.

Wattson v. Thebou, 17 Abb. Pr. 84.

Where a receiver, appointed in supplementary proceedings, brings an ac tion to set aside a conveyance fraudulently made by the judgment debtor, and subsequent to the commencement of the action, other judgments are recovered against the same party and he is appointed receiver in supplementary proceedings taken on behalf of other judgment creditors, he cannot by a supplemental complaint, include these claims in the original action. Bostwick v. Menck, 4 Daly, 68; revs'g., 8 Abb. Pr. N. S. 169. Banigan v. Nyack, Village of, 25 App. Div. 150; 83 St. Rep. 199; 49 Supp. 199.

In an action to recover the price of goods sold and delivered, where, as to part of the cause of action a defense alleged by the answer was that the goods were sold upon credit which had not expired at the time when the

SETTING UP New Cause of AOTION BY SUPPLEMENTAL PLEADING,-continued.

action was commenced, plaintiff will not be allowed to serve a supplemental complaint to enable him to recover the price of the goods thus sold. Holly v. Graf, 29 Hun, 443.

Where an action is brought, by a judgment creditor against the debtor and his grantee of real estate, to set aside the deed as fraudulent and void as to creditors, it cannot be made a part of the case by supplemental complaint that, after the service of the summons and complaint upon the debtor, an execution was issued upon the judgment, although it was issued before the summons and complaint were served on the grantee. McCullough v. Colby, 4 Bosw. 603.

Where a complaint, in addition to stating a cause of action for money had and reecived, contains allegations of certain preliminary facts which subsequently ripen into a cause of action in tort, plaintiff cannot serve a supplemental complaint so as to fully state the cause of action in tort. New England Water Wks. Co. v. Farmers' Loan & Trust Co. 23 App. Div. 571; 82 St. Rep. 948; 48 Supp. 948.

In an action brought against an elevated railroad company to restrain its use of the street in front of plaintiff's premises and for the recovery of past damages, where the property and the right of action have been conveyed pending the action, it is not the office of a supplemental complaint to set forth, on behalf of the grantee, a substituted plaintiff, the fact of the continuance of the use of the street by the railroad company subsequent to the time of the conveyance, in order that the complaint may continue to justify the claim for an injunction, which would otherwise be lost by such transfer of the property.

Lindenheim v. N. Y. Elevated R. R. Co. 28 App. Div. 170; 84 St. Rep. 886; 50 Supp. 886.

In the case last cited the court said, "By an amended supplemental complaint it is now sought to bring into the action the independent right of the plaintiff to an injunction arising out of her ownership of the land under her grantor's deed, and the continuous taking of the easements by the defendants since she acquired that ownership; a cause of action entirely new, in no way connected with the right of her grantor to an injunction, nor in any way associated with his cause of action for that relief. It is sought by this amended supplemental complaint to change again the whole nature of the action from one triable by jury, to restore it as one in equity and to bring a new suit into the old one, upon a cause of action which did not exist when issue was joined in the original suit, and every detail of which, so far as the present plaintiff is concerned, is altogether extraneous of her grantor's right to institute the suit in the beginning. It is not the office of a supplemental complaint to accomplish that purpose. Such a pleading relates only to some matter germane to the original cause of action, and which has arisen since the previous pleading in the case, of which the pleader was ignorant at the time that pleading was made. The

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

terms of section 544 of the Code of Civil Procedure authorize the allowance of a supplemental complaint which alleges material facts which occurred after the former pleading, or of which the pleader was ignorant as above stated. The material facts referred to in the section are facts connected with the cause of action asserted in the former pleading. They may be new matter, but cannot be a new cause of action; that is to say, an entirely independent right which had no previous existence and no connection whatever with the pending suit."

Where a person having a contract with a city to perform certain work, including the construction of a retaining wall, sublet a portion thereof, and upon his failure to pay the subcontractor for the work done and materials furnished, the latter filed a mechanic's lien against the fund which the contractor was to receive from the city, and subsequently the subcontractor brought an action to foreclose the lien, in which the city and the contractor and other alleged lienors interposed answers, the only issue raised by which was as to the existence and priority of the liens which the plaintiff and the defendants other than the city claimed to have, the personal representative of the contractor will not be permitted to serve a supplemental answer alleging a cause of action against the city for work done independent of the contract in placing a coping on the retaining wall, as such an answer would change the city's relation to the action from that of a stakeholder to that of the real defendant, and as the new matter sought to be set up had no relation to the matter involved in the litigation as framed by the original pleadings.

Fortunato v. New York City, 42 App. Div. 14; 92 St. Rep. 683; 58 Supp.

683.

Where plaintiff brought his suit against the defendant individually to recover moneys which he alleged the defendant reecived while acting as the attorney in fact of the executor of the estate which plaintiff claimed as administrator de bonis non, etc., and pending the action letters testamentary were granted to the defendant upon the will of said executor, plaintiff cannot by supplemental complaint set up a new cause of action against the defendant in his representative capacity. McMahon v. Allen, 12 How. Pr. 39; aff'd 3 Abb. Pr. 89.

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

Where an action to establish a resulting trust in real estate is brought against the decedent's widow individually and as temporary administrator of his estate, a new cause of action is not set up by a supplemental complaint alleging the granting to defendant of letters of administration with the will annexed subsequent to the commencement of the action. Moore v. Moore, 44 App. Div. 253; 94 St. Rep. 653; 60 Supp. 653. A supplemental complaint alleging that, after the commencement of an action against a railroad company upon a contract, such company together

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