Myers v. Metropolitan Elevated Railroad — 16 Daly (N.Y.) 410

Majority

p. 410

Edward Myers, Respondent, against The Metropolitan Elevated Railroad Company et al., Appellants.

(Decided December 1st, 1890.)

Headnote

An order granting leave to serve a supplemental complaint and allowing defendant a certain time thereafter to answer, is not erroneous because it fails to provide for a demurrer; as a demurrer to a supplemental complaint is not authorized by the Code.

In granting leave to serve a supplemental complaint, the case having been on the calendar more than a year, it is within the discretion of the court to provide that the case shall retain its original date of issue, .its number on the calendar, and its position on the day calendar.

p. 411

, Appeal from an order of this court granting leave to serve a supplemental complaint.

The facts are stated in the opinion.

Davies Bapallo, for appellañts.

Abbett Fuller, for respondent.

The motion for leave to serve the supplemental complaint was granted on n.otie.e to the defendants, and the order recites that no objection was made to the motion. The appeal is taken from so much "of the order as required the defendants’ pleading to the supplemental complaint to be an answer, and from the provisions in the order that no new notice of trial should be served, that the action as continued should retain its original date of issue, its "old number on the calendar, and its position on the day calendar.

The first ground of appeal we do not think is well taken. There is no prpvisionin the Code which authorizes a demurrer to a supplemental complaint. Four sections of the Code are devoted to the subject of demurrers: § 492 provides for a demurrer to the whole complaint or to any cause of action, § 493 provides for a demurrer to a'reply, § 494 provides for a demurrer to an answer, and § 495.pro vides for a demurrer to a counterclaim .where the defendant demands .affirmative judgment. None of these provides for a demurrer to a supplemental complaint, as was decided, in Freicks, v. Caster (17 Rep’r 168) ; Fleischman v. Bennett (1 Law Bul. 493). And the reason for this is obvious. As á general rule, supplemental complaints do not. state a cause of action ;'they are confined, by § 544 of the Code, to matters occurring after the original complaint was' drawn, or of which the pleader was ignorant when it was made. In this case the supplemental bomplaint merely sets up an assignment by one; of the original plaintiffs of his interest in the'cause of action,'to the. other, after the action was commenced, to show the present interest of one of the plaintiffs in the entire cause of action. In Hayward v. Wood, ( 44 Hun 129 ), Justice Van Brunt

p. 412

says:—“As the supplemental complaint did not pretend to set out an independent or different cause of action from that contained in the original complaint, it was to be read as part and parcel of the complaint, and if the two complaints contained a cause of action which was not demurrable, an answer upon the part of the defendants was required. It would seem, therefore, that no issue was raised by the demurrer to the supplemental complaint, that not being a complete complaint in itself, and that it was error to entertain such demurrer.” It was not necessary, therefore, that the order should provide for a demurrer in this case.

But even if the defendants’ contention is right, that they should have had an opportunity to demur to the supplemental complaint, the order did not prohibit them from so doing. If the Code authorizes such a pleading, there was no need to insert it in the order. It is plain, if the order in this case had stopped on granting the plaintiff leave to serve the supplemental complaint, the defendant would by the Code have been allowed twenty days within which to answer it? without any provision in the order, and the same is true of a demurrer.

The terms on which a supplementary complaint will be allowed are largely within the discretion of the court permitting it (Code Civ. Pro. § 544) ; and we do not think the court below abused its discretion in this case. Even had the motion been opposed, the terms upon which it would have been granted would still have been within the discretion of the court.

A distinction must be made between an amended complaint and a supplemental complaint. An amended complaint takes the place of the original, but a supplemental one does not. When an amended complaint is served, it supersedes the original for the purposes of the issues in an action. A supplemental complaint, however, never takes the place of an original; the issues joined under the original pleadings remain as issues to be tried in the action. And as a general rule, a supplemental complaint does not state a cause of action. In this case the supplemental complaint was allowed

p. 413

to be served merely to show the present interest of one of the original plaintiffs to the entire cause of action ; whereas when it was commenced he was only a part owner of it. It has been°held that even where an amended complaint is allowed to be served it is within the discretion of the court to require a new notice of trial and a new note of issue or not (McBride v. Langdon, 19 Civ. Pro. Rep. 41; Ingraham v. Sterling Ins. Co., MSS. in this court). In our judgment, it was in the interest of justice to allow this case to remain on the calendar, where it had been for over a year, and not to require a new note of issue or a new notice of trial.

I think, therefore, the order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concurred.

Order affirmed, with costs.