
    The New York Central and Hudson River Railroad Company, Appellant, v. Louis F. Haffen, as Commissioner of Street Improvements of the Twenty-third and Twenty-fourth Wards of the City of New York, and William L. Strong, Mayor of the City of New York, and Others, Respondents.
    
      JSailroad — action by d railroad corporation to restrain the filing of maps indicating the opening of streets through its station grounds—leave to serve a supplemental complaint setting -up subsequent prroceedings to open the streets.
    
    In an action brought by a railroad corporation against municipal authorities to restrain the filing of maps showing streets, as indicated thereby, across its station grounds, and to prevent such indicated streets being opened, the plaintiff should be granted leave to serve a supplemental complaint, setting up proceedings for the opening of the streets (alleged in the original complaint as intended or threatened) as in fact taken by the municipality after the filing of the maps, especially where such supplemental complaint will set at rest a question as to the scope of the action. '
    The effect of serving such a supplemental complaint will not be to introduce a new cause of action.
    Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the.28th day of July, 1897, denying the plaintiff's motion for leave ■ to serve a supplemental complaint.
    
      Ira A. Place, for the appellant.
    
      George I. Sterling, for the respondents.
   O’Brien, J.:

This action was begun by the service of a summons, complaint, temporary injunction and notice of motion to make it permanent. This motion was subsequently denied and the injunction dissolved, and an appeal taken from the order thereon was affirmed, upon the ground that the filing of a. map by municipal authorities, showing streets through property, does not create a cloud on title and does not justify the owner of property in applying for an injunction pendente lite to restrain the municipal officers from so doing. (90 Hun, 260.) By the supplemental complaint, for leave to serve which this application was made, it is sought to set up the subsequent steps taken by the municipal authorities to lay out the streets.

The principal ground against the granting of such an amendment urged below, and again urged here, is that 'it would introduce an entirely different question from that involved in the suit as originally brought. This contention was not sustained by the court below, and the motion was denied upon the expressed ground that it was competent, under the. terms of the original complaint, to make proof of the very facts sought to be set up in the supplemental complaint, and, practically, that the supplemental complaint would be useless.

We agree with the court below in the first proposition, that the action,, as originally commenced, was directed to restraining the making and filing of the maps and plans, and, in addition, to preventing the board of street opening and improvement from opening-certain streets across the station grounds of the plaintiff. But we ' do not assent to the view that the relief here sought would be useless, because the very argument advanced by the respondents here and below, that the action was directed solely to restraining the filing of the maps, shows that the service of a supplemental complaint would not be useless, for it would place beyond doubt any question as to the scope of the action.

The setting up of such acts, in our opinion, does not introduce á new and independent cause of action into the complaint. All the acts performed since the original complaint was served are alleged as threatened or intended by the original! complaint, and all are but steps in what is really a single proceeding to accomplish the one thing which this action is brought to prevent, namely, the taking of the plaintiff’s land for the purposes of public streets. We know that in such proceedings there are successive steps: First, the determining - of where a street shall be, which is evidenced by the filing of a map ; second, the acquisition of the land for the street; and, third, the actual construction of the street. As a property owner cannot be injured by the filing of the maps, such act upon the part of any official should not be enjoined. That, as we have seen, was the decision upon the former appeal. But upon that appeal there was no determination upon the merits; nor is it necessary to determine mow the question whether the acts performed in the appointment of commissioners and in proceeding to acquire title to the land can or cannot be enjoined. In other words, we do not think it necessary, nor do we intend to discuss or determine the merits of the controversy. The plaintiff is entitled to its day in court, and, under the ordinary practice relating to the service of supplemental pleadings, such relief is usually accorded unless good reasons to the contrary are shown. Although the language of section 544 of the Code is mandatory, it has been construed to vest a discretion in the court to grant or refuse an application “ as may be just and proper ” in the particular case. (Fleischmann v. Bennett, 79 N. Y. 579.) And in Holyoke v. Adams (59 id. 237) it is said : So that it comes to this: That generally a defendant has a right to set up by supplemental answer matter of defense which has occurred or come to his knowledge subsequently to the putting in of his first answer, but that he must apply to the court, by motion, for leave so to do, so that the opposite party may be heard, and the court may determine whether there has been inexcusable loches, or whether, any of the reasons appear which are recognized as giving, authority for denying the exercise of the general right in the particular instance. And the court must grant leave, unless the motion papers show a case in which the court may exercise a discretion as to granting or withholding leave.” As to the rule applied in a somewhat similar case, see Latham v. Richards (15 Hun, 129).

The further insistence that this leave should not be granted, because the Legislature has passed an act (Chap. 650, Laws of 1897) authorizing the construction of part of the contemplated improvement relating to the proposed viaduct across the yard at One..Hundred and Fifty-third street, does not affect our conclusion. We do not think that serious questions, growing out of the diverse views, in favor of and against the right to open these streets, should be disposed of npton a motion; but, following the usual practice with respect to pleadings, the parties should be permitted to formulate their cause of action and proceed to trial, and there have their rights passed upon in a more deliberate manner.

As no good reason was shown why the' plaintiff should not be accorded the relief to which ordinarily a pleader would be entitled, we think the order below was wrong ’and should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to plaintiff to abide the event.

Van Brunt, P. L, Rumsey and Ingraham, JJ:, concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to plaintiff to abide the event.  