4 Daly 68 | New York Court of Common Pleas | 1871
The province of a supplemental complaint is to present such facts, material to the ease, occurring after the former complaint (Code, § 177), as give aid to, or tend to vary the relief to which the plaintiff was entitled by, his original statement of a cause of action, or to perfect an inchoate right so stated, which has since been made or become complete.
Imperfections in the complaint, in allegations affecting the rights sought to be enforced, are to be remedied by amendment, although the Code (§ 177) allows the correction by supplemental pleading, where “ the party was ignorant ” of them “ when his former pleading was madé.” But such supplemental matter introduced into the record still constitutes but one cause of action (Story Eq. PI. § 332), and if the cause of action sought to be enforced by the original complaint did not then exist, or was defective at the time of the commencement of the action, it cannot be created, cured, or aided, by matters subsequently occurring. The events or matters subsequently occuring, and sought to be introduced by supplemental complaint, must be such as do not change the rights or interests of the parties before the court, but must merely refer to and support the same title alleged in the complaint, and already presented to the court (Story Eq. PL § 336 ; Daniel’s Oh. Pr. 154).
A new substantive cause of action cannot be supplied or introduced into the case by supplemental bill ( Wattson v. Thibou, 17 Abb. Pr. 184; Milner v. Milner, 2 Edw. Ch. 114; McCollough v. Colby, 4 Bosw. 603 ; Story Eq. PL §§ 336, 339; Dickson
As judgment creditors with executions returned unsatisfied, or through a receiver appointed in their behalf, they might have commenced separate actions, or, under the provisions of the Code (§ 117), have united in an action by themselves, or the receiver appointed in their behalf, for the purpose of obtaining the like relief óf setting aside the assignment made by their debtor in fraud of their rights, and for the proper statement of their several causes of action, it should appear that they were
The order appealed from allowing the statement by way of supplemental complaint of these further causes of action, on behalf of other claimants having distinct interests from those represented by the original complaint, cannot be sustained, and should be reversed, with costs.
Order reversed.
Present, Robinson, Loew, and L arremore, JJ.