John D. Park & Sons Co. v. Hubbard

“Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part therer of. * * * ”

While it is true that section 3339 of the Code of Civil Procedure provides that "there is only one form of civil action,” and “the distinction between actions at law and suits in equity and the forms of those actions and suits have been abolished,” it is not true that the essential characteristics which distinguish actions at law from suits in equity have been abolished. The form of a pleading no longer controls. The complaint must contain a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition, and a demand for the judgment to which the plaintiff supposes himself entitled. Section 481, Code of Civil Procedure. But whether the action .shall proceed to trial as at common law before a jury of 13 men, or at equity before the court, and the relief granted, is still to be determined by the settled principles governing and distinguishing the practice at law and in equity. What was sought to be accomplished was abolition of form; but substance was retained. A distinguishing characteristic of equity was the power to enjoin the performance and continuance of acts which might cause irreparable injury, and as an incident to a decree the payment of such damage as had been caused. It was always the custom for equity to shape its flexible decree as required by the facts shown at the time of the trial, which included, of. course, the ascertainment and award of damages down to said time, 'therefore it was proper, and it has been the continuous practice in equity, in accordance with that settled policy, to allow the service of a supplemental complaint, which would set forth such facts as had oc- . curred after the commencement of the suit as were necessary to enable the court to so shape its relief.

In actions at law, on the other hand, it was the settled rule that the entire cause of action must have existed at the time of the commencement of the suit, and it was in but a few exceptional cases that damages which had not then accrued could be recovered. Said Judge Earl, in Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98 , 4 N. E. 536 , 54 Am. Rep. 661 :

“There never has been in this state before this case the least doubt expressed in any judicial decision, so far as I can discover, that the plaintiff in such a case is entitled to recover damages only up to the commencement of the action. That such is the rule is as well settled here as any rule of law can be by repeated and uniform decisions of all the courts. * * * In Williams v. R. R. Co., 16 N. Y. 97 , 69 Am. Dec. 651 , and Story v. R. R. Co., 90 N. Y. 122 , 43 Am. Rep 146 , a resort to equity was allowed because the necessity of bringing successive actions to recover damages would thus be obviated. If in those cases the plaintiffs could have recovered all the damages, past and prospective, in actions at law, equitable actions would have been unnecessary and unauthorized.”

These exceptions accentuate the general rule, which we do not think has been affected by the provisions of section 544 of the Code of Civil Procedure.. The language is: “The court may, and, in a proper case, must.” We think such a case would be presented by a devolution of title, for instance; but the supplemental complaint must always, it seems to us, present facts in aid of the original cause of action, and not facts setting forth an entirely new and independent cause of action, coming into existence subsequent to that cause of action for; which the suit was brought. Here we have a case which originally set up a large number of tortious acts, by the perpetration of which it was alleged damage had been inflicted upon the plaintiff to the extent of $500,000. It is now sought to inject into the case a large number of additional and independent tortious acts, claimed to have damaged the plaintiff in the additional sum of $3,000,000, 12 years after the commencement of the action, against a large number of which acts it is evident that the statute of limitations has run. No case presenting facts similar to the one at bar, allowing the service of such a supplemental complaint as this, has been presented to us; nor have we found that section 544 of the Code, supra, has been invoked as an authority for the service of such a supplemental complaint id an action at law. The cases cited by respondent have been examined. Most of them were equity cases, or came within the recognized exceptions alluded to. We.And that the Uline Case stands unreversed and unaffected by later decisions. The rule still is that in actions at law the rights of the parties must be determined as at the commencement of the action, with certain exceptions.

We intend to put our decision squarely upon the proposition that the allowance of such a'supplemental complaint as is here in question is not within the power of the court; but we further say that the Court of Appeals has many times held that the determination of whether, under said section of the Code, a supplemental pleading should be served,, is one within the discretion of the Supreme Court.. Fleischmann v. Bennett, 79 N. Y. 579 . Evidently this pleading is not in aid of the cause of action here set up. The supplementary facts here presented, if constituting causes of action, are independent tortious acts, for which independent suits, if brought in time, might have been instituted. ■

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.