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[Nov.

Appellate Division.

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 ACTION 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

[Nov

Appellate Division.

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 or 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.

N. Y. A. C.

18

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 action 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

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