
    Rebecca Horowitz, Respondent, v. Bernard Goodman, Appellant.
    First Department,
    March 16, 1906.
    Pleading — supplemental complaint — “ amended and supplemental complaint ” unauthorized — causé of action cannot be changed by supplemental complaint—practice stated.
    Mo such pleading as an " amended and supplemental complaint ” is recognized by the Code of Civil Procedure. The power to amend a complaint given by said Code relates to the insertion of allegations of fact existing at the time of the commencement of the action.
    The supplemental complaint authorized by section 544 of the Code of Civil Procedure may set out material facts which occurred after the service of the complaint, or of which the plaintiff was ignorant when the complaint was made, and such supplemental complaint may he served in the place of the original complaint, in which case-it entirely supersedes it.
    But if under the original complaint the plaintiff had no right to maintain an action in equity, there is no right to bolster up such a cause of action by a supplemental complaint stating facts which happened after the commencement of the action.
    Hence, when a plaintiff has sued her landlord in equity to restrain him from interfering with the premises by putting in plumbing, she cannot by an “amended and supplemental complaint” state facts which occurred prior to the original complaint and additional facts occurring thereafter, showing that the threatened damage has been done.
    
      It seems, that a supplemental complaint merely setting out said acts and damage would have been proper.
    Patterson, J., dissented.
    Appeal by the defendant, Bernard Goodman, from an order of the Supreme Court, made at the.Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day,of January, 1906, granting leave to the plaintiff to serve a so-called “ amended and supplemental complaint.”
    
      Henry A. Forster, for the appellant.
    
      Alfred Steckler, for the respondent.
   Ingraham, J.:

This action was commenced in June, 1905. In the original complaint the plaintiff alleges that she is the lessee of certain premises belonging to the defendant, and that the defendant had caused a portion of the leased premises to be cut away for the purpose of constructing water closets and shafts, and threatens to further cut away the ceiling and floors of the leased premises and to construct such water closets,and shafts without ‘the authority and consent of the plaintiff; and the plaintiff demands that the defendant be restrained from constructing and .maintaining said water closets and shafts and from breaking the ceiling apd floor of the plaintiff’s store, and from in any way trespassing upon, or interfering with the said store of the plaintiff. The lease was annexed to the. original complaint. ,

The plaintiff made a motion for a temporary injunction, which was denied. The answer was- served and the case was put upon-.the calendar for trial. Subsequently the plaintiff- moved for leave to serve an amended and supplemental complaint, upon an affidavit alleging that after the action was commenced the defendant had wrongfully entered upon the plaintiff’s premises and wrongfully constrncted said shaft and water closet in said premises; that during the commission of such act certain personal property of the defendant in the store was damaged; that the defendant had thus completed subsequent to the commencement of the ■ action the WrOngful acts threatened prior to the commencement of the action and alleged in the complaint herein, and has so damaged the personal property of the plaintiff in the course.of his wrongful acts of trespass ; that in order to prove said acts so committed by the defendant subsequent to the commencement of the action it is necessary that supplemental and amended complaint be served herein, the com-, mission of said acts subsequent to the -commencement of the action necessitating an amendment of the complaint herein, as deponent is advised by her counsel and verily believes. Annexed to this was: the proposed pleading,' which was intended to take the place of the original complaint. The Code of Civil Procedure recognizes no such pleading as an “ amended and supplemental complaint.” Section 478 of the Code provides that “ The first pleadings on the part of the plaintiff, is the complaint; ” and section 481- pro vides that the complaint- must contain: 1. The title of the action, specifying the name of the court in which it is brought; if it is brought in the Supreme Court, the name of the county, which the plaintiff designates as the place of .trial, and the names. of all the parties to the' action, -plaintiff and defendant. 2. A plain and concise statement of the facts constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled.” Sections 542 and 543 of the Code allow an amendment. to a pleading of course. By section 546 the court may require indefinite or uncertain allegations to be made definite and certain by amendment; and sections 539 and 540 provide for an amendment where there is a variance between an allegation in a pleading and the proof. Section 723 of the Code authorizes the court, upon the trial, or at any other stage of the action, to amend any process, pleading, or other proceeding, by inserting an allegation material to the case, or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceedings to the facts proved; and further power in relation to amendments is given by section 724 of the Code. This power in relation to an amendment to the original complaint relates to the' insertion of an allegation of fact existing at the time of the commencement of the action, and thus amendments to a complaint are' authorized to allow the insertion of allegations of fact existing when the action was commenced and upon which the action is to be maintained. Provision is then made by section 544 of the Code for what is called “supplemental pleadings.” That section 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 party may apply for leave to make a supplemental pleading, either in addition to, or in place of, tlie_former pleading.” The facts which may be alleged by way of a supplemental pleading are “ material facts which occurred after his former pleading, or of which he was ignorant when it was made.” Just what is meant by the provision that this supplemental pleading may take the place of the former pleading is not clear, but it has been uniformly held that “ the plaintiff could not, by a supplemental complaint, change the action in its entire scope and purpose by bringing in and substituting a new controversy, and a new and independent cause of action springing out of a transaction occurring since the commencement of the action between the defendants, with which the plaintiff had no connection.” (Prouty v. Lake Shore & Mich. So. R. R. Co.., 85 N. Y. 275, and cases there cited.) It would seem that under these provisions of the Code the complaint in the action must consist of facts in existence at the time of. the commencement of the action and upon which the plaintiff bases his right to relief. It may, be amended by the court so as to include facts .then existing and which are material to the plaintiff’s cause of action. As to material facts which occurred after the service of the complaint, or of which the ■ plaintiff was ignorant when his complaint, was made,, the plaintiff máy allege such facts by Way of supplemental, complaint, and such a supplemental complaint' may be served in place of the original complaint, in which case it would entirely supersede it. The plain- . tiff in this ease, has attempted to unite in one complaint called an “ amended and supplemental complaint ” facts alleged in the original complaint and which occurred prior to the service of. his original complaint'and the facts which have occurred after the service of thp original complaint and which she seeks to set up by way of supple- ' mental pleading. I think this practice, improper and that it should not be allowed.: .It is in substance commencing a new action to recover upon facts alleged after the commencement of this action and. would introduce an element of uncertainty and confusion. The original complaint in this action was one in equity and demanded a judgment enjoining the defendant from.proceeding to make certain changes in the premises which had been leased to the defendant under orders of the tenement house commission; The new pleading proposed by. the plaintiff as an “ amended and supplemental complaint,” alleges all the facts set up in the original complaint, „and also other facts-not in the original complaint which happened before the commencement of the action, and further alleges that subsequent to the commencement of the action the defendant entered upon the leased premises, constructed the appliances required by the tenement house commission, ejected the plaintiff from certain portions óf the leased premises and caused the plaintiff substantial damage, and the relief that the plaintiff now demands is that the defendant be compelled to remove such appliances so placed upon the leased premises and that the plaintiff ha^e judgment against the defendant for the sum of $15,000.

I think the plaintiff should have been granted leave to serve a supplemental complaint setting up the acts of the defendant after the service of the former pleading in carrying out the acts which, when the former pleadings were served,'were threatened, and stating the damages occasioned thereby and asking to recover in this action such damage. Hpon the trial the facts would then have been presented to the court under the original complaint, upon which the right of the plaintiff to maintain the action would depend, and the relief to which the plaintiff would be entitled would depend upon the facts alleged in the original and supplemental complaints, but if the plaintiff had no right to maintain the action as one in equity the cause of action could not be bolstered up by the facts alleged after the commencement of the action. If upon the trial it appeared that the plaintiff at the time it was commenced was authorized to maintain it‘as an action in equity, the court would have power to retain the action and to grant the plaintiff such relief as she was entitled to, although, in consequence of the wrongful* acts of the defendant after the commencement of the action, equitable relief would not give the plaintiff full relief, but it was irregular to attempt to set up by way in one complaint facts which occurred before and after the commencement of the action and attempt thereby to, sustain a new cause of action against the defendant.

For this reason I think this “ amended and supplemental complaint ” should not have been allowed, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for leave to serve this pleading denied, with ten dollars costs, without prejudice to a motion to be made by'the plaintiff for leave to serve a proper supplemental complaint.

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

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to motion by plaintiff as stated in opinion,  