Farmers' Loan & Trust Co. v. United Lines Telegraph Co. — 14 N.Y. St. Rep. 269

Majority

p. 269

Farmers’ Loan and Trust Co., Resp’t, v. United Lines Telegraph Co. et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

1. Pleading—Supplemental complaint—When party entitled to.

A party does not have the right, by a supplemental complaint, to establish a cause of action when none existed at the time of the commencement of the suit. Malcolm v. Allen, 49 N. Y., 448 , and JIaddow v. Dundy, 59 N. Y , 820 , distinguished.

2. Same—When supplemental complaint may be sustained.

The general rule is that if the original complaint is sustainable and the supplemental complaint only enlarges the extent and changes the kind of' relief, such supplemental complaint may be sustained.

Appeal from order of special term granting leave to plaintiff to file and serve second supplemental complaint.

B. H. Griffin, for def’t and app’lt; H. B. Turner, for pl’ff and resp’t

record in this case shows that the acts which were done, to plead which, leave to file supplemental complaint was granted, were such as were suggested to the plaintiffs in order that the objections which had been raised

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by their proceedings upon the trial of the case before the special term, and upon the appeal to the general term might be met.

It seems to have been conceded in the proceedings in this case by the plaintiffs that under the views of the rights of the parties taken by the general term upon the appeal from the judgment, they had no cause of action which they could enforce.

Such being the condition of the record in order to enable the plaintiffs to supply the deficiency in the facts upon which their right of action depended, they have taken subsequent proceedings, and now ask leave of the court to be allowed to plead their subsequent proceedings for the purpose of showing that at the time at which the action was commenced they had a cause of action.

We do not understand under the authorities cited, that a party has the right by a supplemental complaint to establish a cause of action when none existed at the time of the commencement of the suit.

The authorities cited on the part of the respondent do not go to that extent. In the case of the mortgage (Malcolm v. Allen, 49 N. Y., 448 ), a right of action existed, and after the thirty day clause had expired an additional right to relief attached which was a mere supplement to the right of action which had previously existed, and probably in no way affected the rights of the plaintiff under the Revised Statutes in reference to the foreclosure of mortgages.

So also in the case of Haddow v. Lundy ( 59 N. Y., 820 ), the court expressly held that a right of action existed at the time of the filing of the original bill and that in consequence of subsequent circumstances, a different kind of relief became applicable and that such relief might be obtained in the original action, the general rule being that if the original bifi is sustainable and the supplemental bill only enlarges the extent and changes the kind of relief, such supplemental bill may be sustained.

In the case at bar, however, these subsequent acts sought to be introduced by the supplemental bill form the foundation of the cause of action which might not have at all existed without the proof of these conditional facts.

Under these circumstances it does not seem proper to allow the plaintiffs to establish a cause of action by the proof of facts happening subsequent to the filing of the original bill.

The order appealed from should be reversed and motion denied, with ten dollars costs and disbursements to abide the final event.