
    The Bell Telephone Company of Buffalo, Appellant, v. The Home Telephone Company of Rochester and Rochester Telephone Company, Respondents, Impleaded with The City of Rochester and Others.
    
      ‘Supplemental complaint—it may properly set up the passage a second time of a resolution of a municipality, the first passage of xchich is set up in the original complaint—it must be .in aid of the original complaint — what facts will not be determined on the motion.
    
    Where a resolution passed by the common council of a city, requiring a telephone company to permit other telephone companies to occupy its poles and conduits with their wires, is vetoed by the mayor and the veto is sustained after such company has brought an action against the city and the other interested companies to have the resolution declared invalid, and subsequently the same resolution is again passed by the common council and approved by the mayor, the plaintiff is entitled -to serve a supplemental complaint setting forth, in addition to the allegations of the original complaint, the acts done after the commencement of the action -which resulted in the second passage of the resolution by the common council, and its approval by the mayor.
    Upon a motion for leave'to serve a supplemental complaint, the court will not determine whether the additional facts set up therein are true or false or constitute an independent cause of action. The supplemental complaint must, • however, be'.in aid of the case made by the original complaint.
    Appeal by the plaintiff, The Bell Telephone Company of Buffalo, from an .order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 30th day of January, 1900, denying the plaintiff’s motion for leave to serve a supplemental complaint.
    
      John A. Barhite, for the appellant.
    
      Joseph W. Taylor, for the respondents.
   McLennan, J.:

The action was begun on the-7th day of December, 1899, to procure a judgment declaring void a certain resolution passed by the common council of the city of Rochester on the 5 th day of December, 1899, which, among other things, provided that the plaintiff,, which owned and was engaged in operating lines of electric telephones in said city, under a certain contract made and entered into-by and between it and said city, should be compelled to permit the-defendant companies, which were also engaged in transmitting electricity along and under .the streets of said city, to occupy its poles, and conduits with their respective wires, upon a compliance by said defendant companies with certain conditions in said resolution specified. The resolution further provided that, in case the plaintiff failed to comply with its requirements, it would be deemed to. have-forfeited all the rights and privileges acquired by it under its aforesaid agreement.

It was alleged in the plaintiff’s complaint that to compel it to-permit the defendant companies to occupy its poles and conduits-with their wires would be a violation of the rights acquired by it. under its said agreement, and would result in irreparable injury to it. Judgment was also demanded perpetually enjoining the defendant, companies from making application for or attemping to enforce-any of the rights which such resolution purported to confer upon: them.

After said action had been commenced and the complaint therein-served, the resolution complained of was vetoed by the mayor of said city, and the veto was sustained. Immediately thereafter precisely the same resolution was again introduced, and was again-adopted by the council, without giving the plaintiff an opportunity to be heard in opposition thereto, although requested so to do,, notwithstanding that by the rules of the common council the plaintiff was entitled to such hearing. The resolution- thus last adopted. was approved by the then mayor, the term of the mayor in office when the resolution was first passed having expired.

The proposed supplemental complaint contains all the allegations of the original complaint, and, in addition, sets forth the acts done after the commencement of the action, and which resulted in the repassage by the common council and the approval by the mayor of the resolution first passed.

The motion for leave to serve a supplemental complaint was resisted upon two alleged grounds:

First. The cause of action, if any, set up in the supplemental complaint is in no manner connected with the cause of action set up in the original complaint, but is, on the contrary, entirely independent thereof.
Second. Neither the original or supplemental complaint, or both of them together, contain facts sufficient 'to constitute a cause of action against these defendants.”

The purpose of the action, as originally brought, was to prevent the city of Rochester from compelling the plaintiff to permit the other defendants to occupy its poles and subways with their wires. The passage of the resolution to that effect, even if approved by the mayor, could work no injury to the plaintiff, unless the defendant companies asserted and attempted to enforce the rights which it purported to confer upon them respectively. Such being the purpose, of the resolution, it was not necessary for the plaintiff, before taking steps to resist the action of the common council, to wait until demand was made by the defendant companies, refuse the same, and thus take the risk of forfeiting its rights under its agreement with the city.

The passage of the resolution by the common council was an emphatic declaration of its purpose to compel the plaintiff to do or permit to be done the things specified in said resolution, and which it is claimed by the plaintiff the common council had no legal right or authority to require, and, if so, the plaintiff had a right to challenge the legality of such act immediately, and to bring this action for that purpose. The fact that after the action was commenced the common council rescinded the resolution adopted by it and immediately readopted it, did not necessarily destroy the plaintiff’s cause of action, if one existed. Such action on the part of the .common council but emphasized its intention to enforce the provisions of the resolution upon the plaintiff. If by such action the .common council could prevent its acts from being passed upon by the courts without any abandonment of its purpose, it could prevent indefinitely a legal determination of plaintiff’s rights in the premises, .and perchance until it had incurred the risk of forfeiture of all its rights acquired under its agreement with the city of Eochester.

Both the original and supplemental complaints referred to the .same resolution, although they were passed at different times ; the purpose of the action remained unchanged and the relief demanded is identical. The facts .disclosed by the record quite clearly indicate that the veto of the resolution first passed was sustained by the .common council because sufficient votes could not be obtained to .overrule it, and not because of the acquiescence of the common council in the action of the ipayor. Votes enough could be had to repass the resolution, and it was done at a time when it could not reach the executive of the city until after the term of office of the mayor who was in office when tfip resolution was first passed had expired. It is evident that all the subsequent acts of the common council were done and committed to accomplish, its original purpose of .compelling the plaintiff to permit the defendant companies to use its poles and conduits.

In N. Y. C. & H. R. R. R. Co. v. Haffen (23 App. Div. 377) the .action was brought to prevent the authorities of New York city from laying out a street" through the premises of the plaintiff. The .summons and complaint were served and a- temporary injunction obtained immediately after the maps were filed by the authorities locating said proposed street. Upon motion at Special Term the temporary injunction was vacated, upon the ground that the mere filing of the maps did not create a cloud upon the plaintiff’s title or give it a cause of action. Subsequently other steps were taken by the authorities to consummate its purpose of laying out the street in .question. The plaintiff thereupon made a motion at Special Term for leave to serve a supplemental complaint setting up such additional proceedings. The motion was denied. Upon appeal the .appellate court reversed the order, and said: “ The setting up of .such .acts, in our opinion, does not introduce a new and independent pause 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.” (Latham v. Richards, 15 Hun, 129 ; Abbott’s Trial Brief on Pleadings, 800.)

The sole purpose of a supplemental complaint is to set up such facts as have occurred since the original complaint was served (McRoberts v. Pooley, 1 N. Y. St. Repr. 725); but whether they are true or false, or whether they constitute an independent cause of action, should not be determined upon a motion for leave to serve a supplemental complaint. (Cornwall v. Cornwall, 30 Hun, 573.)

Leave to serve a" supplemental complaint ought not to be withheld unless the object of the application is delay, or it is not made in good faith. ( Williams v. Hays, 23 N. Y. St. Repr. 489.)

The merits of a controversy ought not to be passed upon or determined upon an application for leave to serve a supplemental complaint, but the plaintiff is entitled to his day in court. (N. Y. C. & H. R. R. R. Co. v. Haffen, supra; Reynolds v. Ætna Life Ins. Co., 16 App. Div. 74.)

The rule is well settled that a supplemental complaint must be consistent with and in aid of the case made by the original complaint. (Tiffany v. Bowerman, 2 Hun, 643; Prouty v. Lake Shore & Mich. So. R. Co., 85 N. Y. 276.)

In the case at bar the facts alleged in the supplemental complaint, in addition to those set up in the original complaint, are in aid of the alleged cause of action originally set forth. Whether such facts -constitute a valid cause of action or entitle the plaintiff to the relief demanded, or to any relief against the defendants, ought not to be determined upon this appeal, and we do not intend to indicate any opinion upon that question.

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

All concurred.

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