Berford v. New York Iron Mine — 57 N.Y. Super. Ct. 404

Majority

p. 404

RICHARD G. BERFORD, Appellant, v. The NEW YORK IRON MINE, Impleaded, etc., Respondent.

Headnote

Amended and supplemental complaints, when not allowed to bring in facts arising after the commencement of the action—Dividends declared nunc pro tunc, when cause of action based thereon arises.

Where a complaint does not state facts sufficient to constitute a cause of action, facts which did not exist at the time of the commencement of the action cannot be imported therein, either by an amended or supplemental complaint, so as to turn what is no cause of action at all into a good cause of action.

A cause of action based on dividends declared does not arise until the divi

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dends are in fact declared, although they are declared to have been made nunc pro tunc as of a previous date.

Before Sedgwick, Ch. J., and Fbeedman, J.

Decided January 6, 1890.

Appeal from order denying plaintiff’s motion for leave to file and serve an amended and supplemental complaint.

The action was brought, as appears by the original complaint, to, among other things, establish a lien in favor of the plaintiff upon the share of the assets and property of the New York Iron Mine, claimed to belong to one.Wetmore, as security for certain • notes made by him and held by plaintiff, and to compel the New York Iron Mine to declare a dividend and pay over the amount due on the notes.

The New York Iron Mine demurred on the grounds, that the court had not jurisdiction of the subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained on both grounds, and interlocutory judgment was entered accordingly. From that judgment an appeal was taken to the general term, where it was affirmed.

The court held, in substance, among other things, that it had no jurisdiction as against the New York Iron Mine to decree it to declare and pay such dividends as might appear on an accounting to be proper, and that the complaint did not state a cause of action as against the New York Iron Mine. (See 56 N. Y. Super. Ct. Rep. 236).

After this the plaintiff moved as against the New York Iron Mine only for leave to file an amended and supplemental complaint setting forth in substance, that the New York Iron Mine had since the commencement of the action declared dividends on its capital stock from May 31,1877, to April 1, 1882, (a period anterior to the commencement of the ac

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tion), and that of the dividends so declared there was a sum applicable to the payment of the notes held by plaintiff, sufficient to pay the same with interest, which sum was held by the New York Iron Mine in the city of New York, and praying, among other things, that he be decreed to have alien on the dividends declared upon the stock of said Wetmore, prior to the title of certain parties named, to the amount of said notes and interest thereon, and that the New York Iron Mine be decreed to pay such amount to him.

Frank E. Smith, attorney and of counsel, for defendant, the New York Iron Mine, on the ques-. tions considered in the opinion, argued:—

I. The judgment on the demurrers being still in full force establishes conclusively that the facts existing when the suit was begun constituted no cause of action against this defendant. An interlocutory judgment is the law of the case until it is reversed.

II. The plaintiff, being entitled to no relief whatever upon his original complaint, cannot avail himself by supplemental complaint of matters happening subsequent to the beginning of the action. It is well settled that a plaintiff who has no cause of action at the time he brings his suit cannot, by a supplemental pleading, bolster up that suit with new matter occurring since it was begun. Candler v. Pettit, 1 Paige, 168; McCullough v. Colby, 4 Bosw. 603 ; Muller v. Earle, 37 N. Y. Super. Ct. (J. & S.), 388; Bostwick v. Menck, 4 Daly, 70 ; Holly v. Graf, 29 Hun, 443 ; Farmers’ Loan and Trust Co. v. Telegraph Company, 47 Ib. 315; Continental Construction Co. v. Vinal, 15 N. Y. St. Rep. 968 ; Bull v. Rothschild, 16 Civ. Pro. Rep. 356.

Roger M. Sherman, attorney and of counsel, for plaintiff, on the questions considered in the opinion, argued:—

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I. The allowance of a supplemental complaint is almost a matter of course. Code Civ. Pro., § 544; Lathan v. Richards, 15 Hun, 129 .

II. Plaintiff had a status in a court having jurisdiction, to maintain an action to protect his rights against the conspiracy charged in the original complaint. Haddow v. Lundy, 59 N. Y. 326 ; Hagan v. Walker, 14 How. U. S. 34; McBurney v. Carson, 99 U. S. 570 ; Cases supra.

III. The declaration of the dividends nunc pro tunc, as of dates prior to the commencement of this suit, shows in connection with the charges of the original complaint, not only that the cause of action for dividends really existed then, but that the dividends were improperly withheld by the wrongful act of the defendant. McBurney v. Carson, supra.

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 plaintiff 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. Farmers’ Loan and Trust Co. v. United Lines Tel. Co., 47 Hun, 315 .

Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought, be made a part of plaintiff’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

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time it was made, is alleged to have been made “ nunc pro tunc as of the years 1877 to 1882,” can make no difference.

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., concurred.

Cases cited

McCullough v. Colby 4 Bosw. 603 N.Y. Super. Ct. 1859-05-28 p. 406, p. 407
Continental Construction & Improvement Co. v. Vinal 15 N. Y. St. Rep. 968 N.Y. Gen. Term 1888-05-18 p. 406
Muller v. Earle 37 N. Y. Super. Ct. 388 N.Y. Super. Ct. p. 407