Myers v. Metropolitan Elevated R. R. — 34 N.Y. St. Rep. 293

Majority

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Edward Myers, Resp’t, v. The Metropolitan Elevated R. R. Co. et al., App’lts.

(New York Common Pleas,

General Term,

Filed December 1, 1890.)

Headnote

1. Pleading—Supplemental complaint—Teems on allowing.

A provision in an order allowing the service of a supplemental complaint giving defendant twenty days to answer does not deprive him of any right. There is no provision of the Code which authorizes a demurrer to a supplemental complaint; and even if he had a right to demur, such order does not prohibit him from so doing.

3. Same.

In granting such order it is within the discretion of the court to require a new notice of trial and a new note of issue or not.

Appeal from an order granting plaintiff leave to serve a supplemental complaint.

Davies & Sapallo, for app’lts; Henry Schmitt, for resp’t.

•— The motion for leave to serve the supplemental complaint was granted on notice to the defendants and the order recites that no objection was made to the motion. The appeal is taken from so much of the order as required the defendants’ pleading to the supplemental complaint to be an answer, and from the provisions in the'order that no new notice of trial should be served, that the action as continued should retain its original

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date of issue, its old number on the calendar and its position on the day calendar.

The first ground of appeal we do not think is well taken. There is no provision in the Code which authorizes a demurrer to a supplemental complaint. Four sections of the Code are devoted to the subject of demurrers: § 492 provides for a demurrer to the whole complaint or to any cause of action; § 493 provides for a demurrer to a reply; § 494 provides for a demurrer to an answer, and § 495 provides for a demurrer to a counterclaim where the defendant demands affirmative judgment. None of these provides for a demurrer to a supplemental complaint, as was decided in Frericks v. Coster, 17 Reporter, 168; Fleischman v. Bennett, 1 Law Bul., 493. And the reason for this is obvious.

As a general rule supplemental complaints do not state a cause of action; they are confined by § 544 of the Code to matters occurring after the original complaint was- drawn, or of which the pleader was ignorant when it was made. In this case the supplemental complaint merely sets up an assignment by one of the original plaintiffs of his interest in the cause of action to the other after the action was commenced to show the present interest of one of the plaintiffs in the entire cause of action. In Hayward v. Hood, 44 Hun, 129 ; 8 N. Y. State Rep., 457, Justice Van Brunt says: “As the supplemental complaint did not pretend to set out an independent or different cause of action from that contained in the original. complaint, it was to be read as part and parcel of the complaint, and if the two complaints contained a cause of action which was not demurrable an answer upon the part of the defendants was required. It would seem therefore that no issue was raised by the demurrer to the supplemental complaint, that not being a complete complaint in itself, and that it was error to entertain such demurrer.” It was not necessary therefore that the order should provide for a demurrer in this case.

But even if the defendants’ contention is right that they should have had an opportunity to demur to the supplemental complaint the order did not prohibit them from so doing. If the code authorizes such a pleading, there was no need to insert it in the order. It is plain, if the order in this case had stopped on granting the plaintiff leave to serve the supplemental complaint, the defendant would by the Code have been allowed twenty days within which to answer it without any provision in the order; and the same is true of a demurrer.

The terms on which a supplementary complaint will be allowed are largely within the discretion of the court permitting it, Code Civ. Pro., § 544; and we do not think the court below abused its discretion in this case. Even had the motion been opposed, the terms upon which it would have been granted would still have been within the discretion of the court.

A distinction must be made between an amended complaint and a supplemental complaint An amended complaint takes the place of the original, but a supplemental one does not When an amended complaint is served, it supersedes the original for the

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purposes of the issues in an action. A supplemental complaint, however, never takes the place of an original; the issues joined under the original pleadings remain as issues to be tried in the action. And as a general rule, a supplemental complaint does not state a cause of action. In this case the supplemental complaint was allowed to be served merely to show tne present interest of one of the original plaintiffs to the entire cause of action ; whereas, when it was commenced, he was only a part owner of it. It has been held that even where an amended complaint is allowed to be served, it is within the discretion of the court to require a new notice of trial and a new note of issue or not. McBride v. Langan, 19 Civ. Pro., 41; MSS. (in this court) Ingraham v. Sterling Ins. Co. In our judgment, it was in the interest of justice to allow this case to remain on the calendar where it had been for over a year, and not to require a new note of issue or a new notice of trial.

I think, therefore, the order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.