Continental Construction & Improvement Co. v. Vinal — 15 N.Y. St. Rep. 968

Majority

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The Continental Construction and Improvement Co., Resp’t, v. Quincy A. Vinal, App’lt.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

1. Pleadings—Supplemental complaint—What it mat contain.

A party has not the right by a supplemental complaint to establish a cause of action, when none existed at the time of the commencement of the suit.

p. 969

2. Same—Code Civ. Pro., § 544.

The judgment or decree which a party is permitted to set up in a supplemental pleading by Code Civil Procedure, section 544, is an adjudication upon the same, or some of the same issues as those involved in the particular suit wherein the supplemental pleading is served; not an adjudication which merely determines other matters affecting one of the parties.

Appeal from order granting leave to file a supplemental complaint.

E."Winslow Paige, for app’lt; Thomas H. Hubbard, for resp’t.

—This is an action for malicious prosecution. In respect to the termination of the case alleged to have been maliciously prosecuted, the original complaint averred that it was brought in the circuit court of the United States for the Northern district of New York, in March, 1886, and that after the proofs of Quincy A. Vinal, the plaintiff therein, had been heard, V the said circuit court upon said proofs directed the jury to render a verdict for the defendant, and the jury rendered a verdict according to said direction, which said verdict still stands.

The answer to the original complaint averred, among other things, that after the rendition of the verdict aforesaid, the circuit court of the United States gave the defendant herein as plaintiff in that action sixty days to make a case and exceptions, and stayed all proceedings in the meantime, and that subsequently the bill of exceptions was duly settled, signed and filed, and that no judgment had ever been entered after the verdict, but that the action in the circuit court was at the time of the commencement of this suit still pending and undetermined.

By its supplemental complaint which the special term bas allowed the respondent to serve, it alleges, in substance, that since the commencement of this action, the motion for a new trial in the circuit court case has been denied, and that final judgment against Quincy A. Vinal has been entered therein, which judgment still stands.

It is plain that unless the suit in the circuit court of the United States is to be regarded as having been terminated by the verdict which was directed therein, there was no cause of action stated in the original complaint in this case. On the other hand, if that verdict did terminate the suit, then the additional averments as to the subsequent denial of a motion for a new trial, and entry of judgment thereafter, are wholly unnecessary to sustain the plaintiff’s case herein. In The Farmers’ Loan and Trust Co. v. United Lines Telegraph Co., decided by this court in January last (14 N. Y. State Rep., 269), we held that a party did not have the right by a supplemental complaint to establish a cause

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of action when none existed, at the time of the commencement of the suit. Without expressing any opinion upon the present appeal, as to whether the additional averments of this supplemental complaint are essential to enable the plaintiff to maintain the action, we are clear that they are neither necessary nor material except for that purpose.

Reference is made to the provision of the Code (section 544), which permits a party to set up in a supplemental pleading “the judgment or decree of a competent court rendered after the commencement of the action determining the matters in controversy or a part thereof.” The judgment or decree thus mentioned, is an adjudication upon the same, or some of the same issues as those involved in the particular suit wherein the supplemental pleading is served; not an adjudication which merely determines other matters, affecting one of the parties.

We think the plaintiff must succeed or fail in this action upon his original complaint, and the order appealed from should, therefore, be reversed with costs.

Van Brunt, P. J., and Daniels, J., concur.