
    The People of the State of New York, Plaintiff, v. The Westchester Traction Company, Defendant.
    (Supreme Court, Westchester Special Term,
    November, 1907.)
    Judgment — Rendition — At particular stages of the action — Judgment on demurrer — Final or interlocutory judgment.
    In an action brought by the Attorney-General to annul the charter of a corporation, Avhere after issue was joined the plaintiff served a supplemental complaint, which simply contained additional allegations and further reasons for the annulment of defendant’s charter hut no allegations as to its incorporation, franchises or its business and operation, to which the defendant demurred, upon overruling such demurrer to the supplemental complaint, while the original issues remain undetermined, judgment cannot he granted for the annulment of defendant's charter.
    Demurrer to supplemental complaint.
    Frank L. Young, for plaintiff.
    J. Aspinwall Hodge, for defendant.
   Tompkins, J.

This is an action to annul the defendant’s charter, brought after leave has been obtained from the court by the Attorney-General. There was a demurrer to the original complaint which was overruled by the court at Special Term. From the order overruling the demurrer, there was an appeal to the Appellate Division, where the judgment overruling the demurrer was affirmed. An answer was served to the original complaint, and, thereafter, a supplemental complaint was served, and to this supplemental complaint the defendant demurred, and this motion is by plaintiff for judgment on the demurrer to the supplemental complaint, as frivolous, under section 531 of the Code of Civil Procedure.

It can hardly be said that the demurrer is frivolous; hur, without going into that question in detail, I think that the motion should be denied, for the reason that the issues raised by the original complaint and the answer thereto are pending and untried. I do not see how the plaintiff can have a judgment annulling the defendant’s charter, while the issues presented by the original complaint and answer are undetermined.

The supplemental complaint is purely and only “ supplemental.” It does not restate the allegations of the original complaint. It simply contains additional allegations in support of the plaintiff’s claim that the defendant has forfeited its charter and further reasons for its annulment. The supplemental complaint does not of itself state facts sufficient to constitute a cause of action. It entirely 'omits any allegation of the incorporation of the defendant, or the granting to it of a franchise, or any allegation concerning its business and operation, nor does it state facts sufficient to entitle the plaintiff to the relief sought in the action. Judgment cannot be given upon such a supplemental complaint, while an answer stands to the original complaint.

Motion for judgment on the demurrer, as frivolous, denied.

Motion denied.  