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, allega tions 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 of 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 stipu lation 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 judgment 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

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

prisoner and his sureties to enable them to defend the same, the court must order a summary judgment for the plaintiff," does not set up a new cause of action which had no existence when the action was commenced, as the cause of action averred in the original complaint was based upon the bond executed by the defendants to secure to the judgment debtor the liberties of the jail, which bond, when the debtor escaped, became forfeited, and the sureties thereon became liable to pay all damages sustained by the plaintiff to the amount of the bond, and such right of action could be enforced against the defendants; the only effect of the supplemental complaint being to allow the sheriff to take advantage of the summary remedy given by section 162 of the Code.

Buttling v. Hatton, 33 App. Div. 551; 87 St. Rep. 1009; 53 Supp. 1009. In an action brought by a railroad company against municipal authorities to restrain the filing of maps showing streets across its station grounds, and to prevent such indicated streets being opened, a supplemental complaint setting up proceedings for the opening of the streets, which are alleged in the original complaint as intended or threatened, as in fact taken by the municipality after the filing of the maps, does not introduce a new and independent cause of action.

N. Y. C. & H. R. R. Co. v. Haffen, 23 App. Div. 377; 82 St. Rep. 316; 48 Supp. 316.

A defendant may, in an action of divorce for adultery, plead as a counterclaim by supplemental answer acts of adultery committed by the plaintiff since the action was begun entitling her to affirmative relief. Blanc v. Blanc, 67 Hun, 384.

McAdam, J., in a memorandum of decision in the case of Day v. Day, reported in the N. Y. Law Jour. of Sept. 7, 1893, said, "As there can be but one divorce and the new matter is consistent with and in aid of that relief, the English practice of allowing adulteries committed subsequent to suit brought to be alleged in a supplemental bill with the like force as if alleged in the original would be followed but for the decisions establishing a different rule of practice in this state," and he distinguished the case of Blanc v. Blanc on the ground that a plaintiff may discontinue and sue over again, while a defendant cannot.

In an action for a separation from bed and board acts of cruel and inhuman treatment committted by defendant since the time of the commencement of the action may be set up by a supplemental complaint, as they do not introduce a new substantive cause of action, but explain the other matters put in issue by the pleadings.

Cornwall v. Cornwall, 30 Hun, 573.

Where a bill is filed by legatees for the purpose of collecting legacies charged upon real estate in the hands of devisees, under which bill the plaintiff's would be entitled to a decree for the sale of the real estate for the payment of their legacies, and an agreement is subsequently made

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

between the legatees and devisees which would, in addition to that relief, warrant a decree against the defendants personally, such subsequent facts do not constitute a new cause of action so as to make it improper to set them up by supplemental complaint. Hasbrouck v. Shuster, 4 Barb. 285.

SMITH v. WHEELER.

[55 App. Div. 170; 100 St. Rep. 780; 66 Supp. 780.]

(Supreme Court, Appellate Division, Third Department. November 14, 1900.)

BANKRUPTCY-EFFECT OF DISCHARGE-PROVABLE CLAIM.

The claim of the payee of a note against the maker by reason of his having paid the judgment obtained against him and the maker by the indorsee, the payment being after the maker had filed his petition in bankruptcy, is within Bankr. Act 1893, § 17, making a discharge in bankruptcy a release of the bankrupt from all his "provable debts;"

NOTE.-DEBTS BARRED BY DISCHARGE IN BANKRUPTCY.

a. Statutes.

b. In general.

c. Debts created by fraud.

d. Debts created in a fiduciary capacity

e. Where the bankrupt is a partner.

f. Bankrupt's liability as a surety.
g. New promise to pay.

a. Statutes.

U. S. Act of 1898. Sec. 17. Debts not Affected by a Discharge.

(a.) A discharge in bankruptcy shall release a bankrupt from all his provable debts except such as

(1.) Are due as a tax levied by the United States, the state, county, district, or municipality in which he resides;

(2.) Are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another;

(3.) Have not been duly scheduled in time for proof and allowance,