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SETTING UP NEW CAUSE OF ACTION 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.

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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

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

683.

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.

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

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

with other companies was merged in a new company, which assumed all of the contracts, liabilities and obligations of the original companies, does not introduce a new cause of action.

Prouty v. Lake Shore & Mich. So. R. R. Co. 85 N. Y. 272.

A supplemental complaint may be filed setting forth the fact that, after the commencement of an action brought by taxpayers under chapter 161 of the laws of 1872, and before the granting of a preliminary injunction to restrain, upon the ground that the expenditure had been incurred before levying a tax to pay it, a village from paying any money upon a contract which assumed the payment of certain mortgages as part of the purchase money of land for a village cemetery, a portion of the tax had been collected and paid over to the owners of the mortgages, and asking not only to restrain a further levy, but to compel the repayment to the village of the money paid by it.

Latham v. Richards, 15 Hun, 129.

In an action for libel, although the circulation of a paper containing a republication of the libel made subsequently to he commencement of the suit gives a new cause of action independent of and not material to the cause of action on which the suit is brought, it may be set up by supplemental complaint, as republications in various forms by defendants of the same libel may be deemed, if the plaintiff so elects, mere aggravations of the injury of which he originally complained.

Corlin v. Knapp, 5 Hun, 197.

A new and independent cause of action is not set up by a supplemental complaint alleging the acts, done after the commencement of the action, which resulted in the second passage of a resolution by the common council of a city, requiring a telephone company to permit other telephone companies to occupy its poles and conduits with their wires, and its approval by the mayor, where the first passage of the resolution was vetoed by the mayor after such company had brought an action against the city and the other interested companies to have the first resolution declared invalid, and subsequently it was again passed by the common council and approved by the mayor.

Bell Telephone Co. v. Home Telephone Co. 52 App. Div. 13; 98 St. Rep. 821; 64 Supp. 821.

In an action based upon an agreement for the sale of land to be paid for in instalments, where at the time the action was commenced the contract had not wholly matured, and the claim was for several instalments which had then become due, plaintiff was permitted to set up by supplemental complaint the maturing of the contract, and payments falling due while the action was pending.

Fincke v. Rourke, 20 Hun, 264.

On an application for leave to file and serve a supplemental petition in a proceeding for the removal of the executrix and trustee under a will,

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

in answer to the objection that it set up a new and distinct cause of action the court said, "New allegations of fact constitute a separate cause of action, when they tend to establish for the complainant a right to relief, separate and distinct from the relief to which he might have been entitled upon proof of other facts previously alleged; but when an action or proceeding has been commenced upon certain allegations of facts, allegations of other facts merely tending to strengthen the complainant's right to the very relief originally demanded, and not tending to establish his right to separate and distinct relief, cannot be said to constitute a separate cause of action."

Smith, Matter of, 15 St. Rep. 435.

In an action on a promissory note where defendant alleged, by way of avoidance, that, since the making and delivery of the note sued on, he had made and delivered a renewal which had not matured at the commencement of the action, and the general term reversed the judgment of the trial term in favor of plaintiff and granted a new trial on the ground that he should have repossessed himself of the renewal note and tendered it back before he could maintain the action, plaintiff can, before a new trial is had, serve a supplemental complaint alleging "that the note pleaded in defendant's answer as payment to the note in suit was not paid, and is in the possession of plaintiff and that he may tender the same on the trial."

Cohn v. Husson, 5 Civ. Pro. 324.

In the case last cited the court said, "that a supplemental complaint will not be allowed, where it attempts to introduce an independent substantive cause of action, growing out of the later facts upon which a judgment could be rendered without reference to the original complaint, is well settled; but new matter may be alleged in aid of the original cause of action which occurred subsequently to the commencement of the suit. Here the same consideration upon which the recovery is sought under the old note was continued in the new; the one was a mere extension or renewal of the other; no different or additional cause of action is attempted to be set out the recovery will still be sought upon the original cause of action; the averment of the subsequently occurring fact as to the renewal note maturing after the commencement of the action and its being dishonored is not intended to enlarge or change the prayer for relief nor to alter the character of the issue, but is rather intended to support a recovery upon the original cause of action which is still to be based upon the right to relief on the note in suit."

A supplemental complaint may set up a conveyance to the remaindermen of a life-estate in the property made pending the action for partition thereof.

Diehl v. Lambart, 9 Civ. Pro. 347.

In an action brought to enforce an alleged stoppage in transitu, the de

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

fendant, the consignee, set up in his answer that he had received the goods into his possession, and had sold them and assigned the bill of lading and received the price thereof. A supplemental complaint, alleg. ing that defendant had procured possession of the goods by fraud, and being insolvent, had conspired to defraud plaintiff by a fictitious sale of the goods, and that there was no consideration for such sale, does not set up a new substantive cause of action.

Rosenthal v. Dessan, 11 Hun, 49.

In the case last cited the court said, "If the plaintiff has, as he alleges exercised his right of stoppage before the termination of the transitus, and before any bona fide sale for value, his right cannot, of course, be defeated by a fraudulent combination for that purpose. And we see no reason why he may not, for the purpose maintaining this cause of action set up in the original complaint, assert all the facts set forth in the proposed supplemental complaint. While there are facts alleged which might, in and of themselves, be a substantive cause of action, they are, nevertheless, in this case, asserted solely for the purpose of aiding the plaintiff to accomplish a complete enforcement of the rights and remedies asserted by his original complaint."

Where, after a trustee has brought an action to determine the claims of the defendants to a fund in his hands, a stipulation is made by the parties, by the terms of which the claims of the defendants are liquidated at specific sums, and which further provides that, upon these payments being made by the trustee the action shall be discontinued, the trustee should be allowed to serve a supplement complaint setting up the stipulation and the payments made under it, but a supplemental complaint, alleging, as an offset against beneficiaries entitled to the fund in the trustee's hands a personal claim for professional services which he has rendered them, sets up a new cause of action.

Harris v. Elliott, 24 App. Div. 133; 82 St. Rep. 1020; 48 Supp. 1020; 29 App. Div. 568; 85 St. Rep. 1012; 51 Supp. 1012.

Where a judgment creditor obtains a verdict, but does not enter judgment thereon, in an action against a sheriff for the escape of the judg ment debtor from the jail liberties, notice to defend which action was served upon the sureties in the undertaking given for the jail liberties, a supplemental complaint, in an action by the sheriff upon such undertaking, setting forth the entry of judgment in the judgment creditor's action after the commencement of the action upon the undertaking, in order tion after the commencement of the action upon the undertaking, in order that the sheriff may avail himself of section 162 of the Code of Civil Procedure, providing that, "If it appears to the court, upon a motion made in behalf of the sheriff that judgment has been rendered against him for the escape of the prisoner, and that due notice of the pendency of the action against him was given to the

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