Berford v. New York Iron Mine — 29 N.Y. St. Rep. 207

Majority

p. 207

Richard G. Berford, App’lt, v. The New York Iron Mine, Resp’t.

(New York Superior Court, General Term,

Filed January 6, 1890.)

Headnote

Pleading—Supplemental complaint—When will not be permitted.

A plaintiff will not be permitted to file a supplemental complaint, setting up facts which did not exist at the commencement of the action, where a judgment on demurrer determining that the facts alleged in the complaint, and existing at that time, constituted no cause of action, is still in force.

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

Action for an accounting of the assets of the defendant and the share therein of one Wetmore; of the liens upon said shares of Wetmore prior to that of plaintifE; that defendant be decreed to declare such dividend as may appear on such accounting to be proper, for a receiver and an injunction. On demurrer it was adjudged that the complaint did not state facts sufficient to constitute a cause of action, which judgment was affirmed by the general term. 21 M. Y. State Bep., 439.

Roger M. Sherman, for app’lt; Frank E. Smith, for resp’t

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 plaintifE 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 ; 14 N. Y. State Rep., 269. Neither by amendment of the original complaint, nor by supplemental complaint, can facts which occurred after suit brought be made a part of plaintifE’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 difEerenca The reason already given being decisive, it is unnecessary to discuss any other question.

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

Sedgwick, Oh. J., concurs.