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Berford v. New York Iron Mine

8 N.Y.S. 193 Court N.Y. Super. Ct. Decision date 1890-01-06 English

Delivered by Freedman, J.

Contents

Majority

p. 193
Berford v. New York Iron Mine.
(Superior Court of New York City, General Term.
January 6, 1890.)

Headnote

Pleading—Amendment—Judgment on Demurrer.
Where judgment on demurrer is in force determining that plaintiff had no cause of action against defendant, at the time of bringing suit, neither by amendment of the original complaint nor by supplemental complaint can facts occurring after suit was brought be made a part of plaintiff's case.
Appeal from special term.
Action by Bichard G. Berford against the New York Iron Mine. Motion by plaintiff for leave to file.an amended and supplemental complaint denied. Plaintiff appeals. For former report, see 4 H. Y. Supp. 836.
Argued before Sedgwick, C. J., and Freedman, J.
Roger M. Sherman, for appellant. Frank F. Smith, for respondent.

The judgment on the demurrer, which is still in force, determined’that the facts set forth in the complaint, and existing at that time, constitute no cause of action against the defendant. That being so, the plain

p. 194
tiff will not be permitted to file and serve a supplemental complaint, setting up facts which did not exist at the time of the commencement of the action. Trust Co. v. Telegraph Co., 47 Hun, 315 . Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought be made a part of plaintiff’s case, so as to turn what is no cause of action at all into a good cause of action. McCullough v. Colby, 4 Bosw. 603 ; Muller v. Earle, 37 N. Y. Super. Ct. 388 . The cause of action now sought to be maintained by means of a change of the original complaint only arose when the dividends were declared, and such declaration occurred long .after the commencement of the action. The fact that the declaration, at the time it was made, is alleged to have been made nunc pro tune, as of the years 1877 to 1882, can make no difference. The reason already given being decisive, it is unnecessary to discuss any other question. The order should be , affirmed, with $10 costs and disbursements.

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