Milliken v. McGarrah

149 N.Y.S. 484 | N.Y. App. Div. | 1914

McLaughlin, J.:

This appeal is from an order denying a motion for leave to serve a supplemental complaint. Action to recover $4,500,000 damages alleged to have been sustained by plaintiff through the unlawful conduct of defendants. Issue was joined on the 9th of May, 1914, and on the twenty-seventh of the same month plaintiff made a motion for leave to serve a supplemental complaint, alleging certain facts which it is claimed occurred since the service of the answer. The motion was denied, as appears from a memorandum of the learned justice before whom it was made, on the ground that plaintiff had failed to bring himself within the provisions of the Code of Civil Procedure (§ 544) which required him to show that the facts sought to be set out in a supplemental complaint occurred after the former pleading had been served, or that he was ignorant of. them when it was made.

I am of the opinion that this is too narrow a view to take of the proof which the plaintiff presented on the motion. Facts arising after the commencement of an action may properly be set up in a supplemental pleading. The difference between an amended and a supplemental pleading is pointed out in Horowitz v. Goodman (112 App. Div. 13). The plaintiff could not properly set out in an amended pleading the facts which he here desires to plead. That could only be done by a supplemental complaint. The plaintiff, therefore, properly amended his pleading, and omitted therefrom facts which had occurred subsequent to the time that the original complaint was served, and after the amended pleading had been served set up the other facts in a supplemental complaint.

Applications for leave to serve an amended or supplemental pleading, where the other party cannot be injured thereby, are granted almost as a matter of course, to the end that the parties to the litigation may have an opportunity to raise and have determined such questions as they may think affect their respective interests. (Merrihew v. Kingsbury, 150 App. Div. 40.)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion for leave to serve a supplemental complaint granted, with ten dollars costs.

Ingraham, P. J., Laughlim, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.