
    Central Trust Company of New York, as Trustee, Appellant, v. The West India Improvement Company and Others, Respondents.
    First Department,
    December, 1905.
    Pleading—leave to serve supplemental complaint, setting up new facts — facts not constituting laches in asking such leave.
    When, pending the appeal of an action brought to recover possession of securities pledged as collateral, such securities have become of no value, the plaintiff should be allowed to serve a supplemental complaint alleging that fact, and asking judgment for the value of the securities at the time demand. therefor was made.
    When the necessity for leave to serve such supplemental complaint does not come to the knowledge of the parties until the case is brought to a second trial before a referee and when the delay does not appear to have caused substantial injury to a party to the action, such application should not be denied on the ground of laches. Laches, in a legal sense, depends upon the particular circumstances of each case. '
    Pattebson and Houghton, JJ., dissented.
    Appeal by the plaintiff, the Central Trust Company of New York, as trustee, 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 21st day of July, 1905, denying the plaintiff’s motion for leave to file a supplemental complaint.
    
      Adrian H. Joline, for the appellant.
    
      Edward E. Sprague, for the respondent Manhattan Trust Company.
    . Willard Parker Butler, for the respondents Chase National. Bank and others.
   Ingraham, J.:

This action was commenced in January, 1897. It was tried before a referee, who, in March, 1898, directed a judgment dismissr, ing the complaint. That judgment was affirmed by this court (48 App. Div. 147), but reversed by the Court of Appeals, and a. new trial ordered (169 N. Y. 314). The action was brought to compel the-delivery by the defendant, the. Manhattan Trust Company, of certain securities in its possession which-the plaintiff claimed had been pledged with it as securities for. certain obligations of the West India Improvement Company. After the decision-of tlie Court of Appeals it appeared that these securities had .become of ■ no value, whereupon the plaintiff made this "motion for leave to serve a supplemental complaint, alleging that fact, and changing-the relief demanded from á judgment requiring the Manhattan Trust Company to deliver the securities to. the plaintiff to a judgment. for the value of the securities at the time the-demand was made. This motion was denied, and from that denial the plaintiff appeals.

The. application is not for leaveto amend the complaint by setting up facts which existed at the time of-the commencement of the action, but for leaveto serve a supplemental complaint, alleging facts that had happened after the action had commenced and upon which the plaintiff desired to present to the court the question as to' the nature of the. relief-to which it is entitled. The decisión of the Court of Appeals’being to the effect that the plaintiff was entitled to the possession of the securities at the time it made its demand, and the action, being in equity, I think. the plaintiff should have -been allowed to allege the facts as they now exist, leaving it to the trial court to determine the relief to which the plaintiff would be entitled if the facts thus alleged were proved. The motion is made under section 644 of the Code of Civil Procedure, which -provides, that “upon the application of either party, the court may, and; ,in a -proper Case, must, upon such- terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material, facts which occurred after his former pleading, or of which he was ignorant when-it-was made,” The allowance of such a pleading does not at all involve á determination that the plaintiff is entitled to any other or different relief in consequence of the facts that are thus pleaded, but when a party brings himself within the,-provisions of this section of the Code, unless there is some good reason shown by the opposing party, he should be allowed to present the facts to the court by way of supplemental pleading so that there can be a determination of the effect of those facts in considering the relief to be granted.

The motion was denied below upon the ground, as stated in the opinion of the learned justice who heard the motion, that “plaintiff either has or has not the right to establish the claim which it urges. If it have such right, it>is entitled to assert it and must eventually secure its consideration. If it have no such right, the court should not, by granting this motion, lay down the. rule, that ignorance of the law is a sufficient justification of laches.” If it was intended by this to place the denial upon the ground of laches, I do not think that a denial'on that ground was justified by the proof. When these facts now sought to be alleged occurred there was a judgment against the plaintiff which had been affirmed by this court. While that judgment stood, of course, no motion could have been "made for leave to change the pleading. The. decision" of the Court of Appeals was on December 31,1901. The case appears to have been restored to the calendar in May, 1902, and was adjourned by consent, from time to time, pending the decision of a motion to refer the action. It was finally determined in November, 1902, that the action should be tried before anew referee. ’ From that order the plaintiff appealed to this court, where in December, 1902, the order was affirmed (77 App. Div. 643), whereupon the case was set for hearing' before,the new referee in ' November, 1903. This delay was rendered necessary by the death of one of the defendants, and also by a motion to bring in certain of the owners of the securities which were secured by a .mortgage made to the defendant Manhattan Trust Company. Those questions were nqt finally settled until June, 1903. A commission had been issued to take the testimony of a non-resi.dent witness which was returned in August, 1904. The reference was then adjourned by consent until November,"1904, when the trial commenced before the referee. This trial was continued from. time to time until April 17, 1905, when the question as to whether it was necessary to plead these facts arose before the referee, and the referencé was then "adjourned to allow the plaintiff to make this motion. It is evident that the necessity of pleading these facts to entitle the plaintiff to the relief that it now seeks' was not presented until the hearing before the- referee. When thiffi question was presented doubt was expressed by the referee- as to "hisd power to award any judgment other than that expressly demanded by" the complaint, and this expression of the referee was the immediate cause of the present application. While it is"true that a considerable time has elapsed since the judgment was reversed by the Court-of Appeals,, the various motions that the parties have made, preliminary to bringing the case on to a new trial would largely ^excuse any delay of the plaintiff in not making this motion.before . and it is clear that the necessity of pleading these facts was first brought up for serious, consideration after the new trial had proceeded before the referee. It is certainly in the interest of justice - that the trial of the cáse should not go off upon a matter of pleading, and that ány relief to which the. plaintiff is entitled upon the-facts should not be denied it because of a failure to allege facts, which- exist ; and, therefore, under our system,, a mere, delay in-making a motion for .relief to serve a supplemental pleading should, not of itself defeat the application,, unless it appears that in some way the delay has caused a substantial injury to a party to the action. - The defendants state that several of those interested in this enterprise have died since the decision of the Court of Appeals;: ordering the- new trial, but it is not stated that either, of these par-" ties could give material evidence upon the question as to the Value, of this, property, or that the defendants have really lost any right, which they would have had if the motion had been promptly made-after the decision óf the Court of Appeals. Só, in view of the peculiar circumstances of this case, I do not: think that the delay in making the application would justify the court -in preventing the plaintiff from setting forth, by way of supplemental pleadings, the facts that have happened since the action was commenced and upon which the plaintiff now seeks relief.

The learned justice also seemed to think that-by granting this motion the.court would “lay down the rulé that ignorance of the law is a sufficient justification of laches.” The laches in this case consists in a delay in moving for leave to file this supplemental pleading. . Whether or -not there was laches in a legal sense depends "upon- the particular circumstances of each casé, and the plaintiff. does not seek to justify laches, but offers an excuse for the delay in order to show that there was no laches. We "certainly do not mean by this decision to hold that ignorance of law is a justification of laches, but we think that, considering all the facts here stated, the delay was excused, so that in the absence of affirmative proof that this delay has caused a substantial injury to the defendant, the delay complained of should not operate to defeat the plaintiff’s right to have thése facts spread upon the record so that they can be considered by the court in determining the relief to which the plaintiff was entitled. .

The order appealed from should, therefore, be reversed, and the motion for leave to file and serve a supplemental complaint annexed to the moving papers granted, without costs either in this court or in the court below.

O’Brien, P. J., and Clarke, J., concurred; Patterson- and Houghton, JJ., dissented.

Order reversed and motion granted, without costs in this court or in the- court below.  