Butler v. Cunningham, 1 Barb. 85

Butler v. Cunningham

1 Barb. 85 | N.Y. Sup. Ct. | 1847

Barculo, J.

The caset turns upon a question of pleading. It is contended on the part of the plaintiff that the bill presents a proper case for “ an original bill in the nature of a supplemental bill.” This the defendants deny. It is for the court to resolve the question. What then is the proper office of an original bill in the nature of a supplemental bill 1

An original bill is defined to be one which relates to some matter not before litigated in the court, by the same persons, and standing in the same interests. (Story’s Eq. Pl. §16. Mitf. Eq. Pl. 61. 1 Barb. Ch. Pr. 34.)

A supplemental bill, properly so called, is a bill filed for the purpose of supplying a defect, which has arisen in the progress of the suit, by the happening of some event subsequent to the filing of the original bill; and is in continuation of the original suit. (Lube’s Eq. Pl. 136. 1 Paige, 291. Story’s Eq. Pl. §332.)

An original bill in the nature of a supplemental bill embraces, in some degree, the qualities of both an original bill and a supplemental bill. The foundation of a bill of this description is an event ocdurfkig after the commencement of a suit in a court of equity, which event is of such a nature that the suit cannot be continued, as to all the parties, by a mere supplemental bill; and therefore in regard to those parties, it partakes of the char*88acter of an original bill. If the event determines the interest of one of several defendants, and his interest becomes vested in another, by title not derived from the former—as in the case of the determination of an estate for life, and the vesting of a subsequent remainder—the remainderman must be brought in by an original bill in the nature of a supplemental bill; for, as to him it is an original bill, but, as to the other defendants, it is supplemental. So also, in case one of several plaintiffs is deprived of his interest in the suit, the defect may be supplied by such a bill, which is an original bill, as to the new parties and new interests, but supplemental as to the old parties and old interests. And if a sole plaintiff assigns his whole interest, or is deprived of it, subsequent to the commencement of the suit; as in case of bankruptcy, the plaintiff being no longer able to proceed for want of interest, his assignees can only obtain the benefit of the proceedings by a bill of this kind.

But in the case under consideration the plaintiff’s claim is not founded upon an event happening since the filing of the original bill. He claims by virtue of the assignment made to him on the 4th of May, 1837, several months before the commencement of the original suit by Mott. He does not claim to be the assignee in bankruptcy; nor that that assignment gave him any rights or interests. He sets forth the bankruptcy of Mott merely as a reason why Mott cannot further proceed in the cause. This is undoubtedly a good reason for arresting Mott’s proceedings; but is by no means a reason for authorizing the present plaintiff to come in and continue those proceedings, under a title obtained prior to the commencement of the original cause. There is nothing found in the books to justify such a practice ;■ nor is there any sound principle of equity pleading which will permit it.

The demurrer must therefore be allowed, and the bill be dismissed with costs ; without prejudice to the plaintiff’s right to file an original bill.