Bull v. Rothschild — 22 N.Y. St. Rep. 536

Majority

p. 536

Richard H. Bull, App’lt, v. Maier Rothschild, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 29,1889.)

Headnote

1. Complaint—Amendment of—Code Civ. Peo., § 544.

Causes of action subsequently accruing cannot be tacked on, by amendment of the complaint, to causes of action which existed prior to the commencement of the action.

2. Same — To what extent complaint may be amended in action foe •

KENT DDE.

A complaint for rent due for two specified months cannot be amended or supplemented by alleging other months rent in default, which becama so after the commencement of the action.

p. 537

3. Same—Amendment in action for damages.

1 Although in actions for damages for breach of contract a party may recover all damages which he could prove up to the time of the trial, yet as the action at bar is not for damages for breach of contract, as such term was used prior to the Code, only to recover money due under a contract, the rule as laid down in Cummings v. Hausen ( 63 How. Rep., 361 ), which permits amendments in actions for damages for breach of contract, does not apply.

Appeal from order denying motion for leave to file supplemental complaint.

C. C. Bull, for app’lt; W. F. Severance, for resp’t. "

—This action was brought upon a lease, whereby the defendant hired of the plaintiff for the period from the 6th of April, 1887, to the 1st of February, 1888, certain premises in the city of New York, at the yearly rental of $4,500, payable monthly on the first of each month.

The complaint alleged that the defendant had not paid the rent of said premises, which fell due on the 1st of October, 1887, and the 1st of November, 1887, and demanded judgment for the amount so due. Subsequent to the commencement of this action, other defaults were made in the payment of rent, and the plaintiff moved to be allowed to serve a supplemental complaint, alleging these further defaults. This motion was denied, and from the order thereupon entered this appeal is taken.

The provisions of the Code under which such an application may be made are as follows:

Section 544. “ 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. * * * The party may apply for leave to make a supplemental pleading, either in addition to or in place of the former pleading.”

It is claimed that under these provisions, the plaintiff had the right to bring in by supplemental complaint these two causes of action which accrued subsequent to the commence ment of the action in question, and our attention is called to two cases as authority for this proposition; namely, Latham v. Richards, 15 Hun, 129 , and Cummings v. Hausen, 63 How. Pr., 351 .

Upon an examination of those cases, however, they in no way sustain the interpretation put upon the section in question by the plaintiff.

In the case of Latham v. Richards the cause of action was precisely the same all the time, and the only addition

p. 538

made by the supplemental complaint was the bringing in of other parties who had acquired an interest in the subject-matter of the litigation subsequent to the commencement, of the action. In the case at bar new causes of action are-sought to be set up. The subject-matter is different, viz.: rent which had accrued under the contract subsequent to the commencement of the action.

In the case of Cummings v. Hausen all that was decided was that in actions to recover damages for the breach of a contract a party may recover all the damages which he-could prove he had sustained upon the trial of the action.

In the case at bar the action is not for damages for the breach of a contract, as such term was used prior to the Code only to recover money which had fallen due according to the terms of a contract. The only breach of the contract is the failure to pay according to its terms, and to discharge the installments of rent as they fell due. This is the ordinary action to recover money due upon a contract.

It seems to us that upon no theory whatever can causes of action subsequently accruing be tacked on to causes of action which are independent and existed prior to the commencement of the action.

The order should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.