
    Dora Otten and Henry H. Otten, as Executors and Trustees under the Will of Henry Otten, Deceased, Appellants, v. The Manhattan Railway Company, Respondent.
    
      Supplemental complaint — its allegations can only be those authorized by the order permitting it to be served—return of the complaint.
    
    Where leave has been granted to executors and trustees to continue an action, begun by their testator, against an elevated railroad of the city of New York, and also to serve a supplemental complaint setting forth “the facts alleged by them as to the devolution of the title to the premises and causes of action described in the complaint herein,” they have no right to include in the supplemental complaint new allegations relative to a third track upon the defendant’s railroad and to the operation of express trains thereon.
    Where such a supplemental complaint is served it is proper practice for the defendant to return the pleading with a notice that allegations have been inserted in it which were not within the terms of the order granting leave to the plaintiffs to serve it.
    Appeal by the plaintiffs, Dora Otten and Henry H. Otten, as executors and trustees under the will of Henry Otten, deceased, 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 October, 1897, denying the plaintiffs’ motion to compel the defendant to accept service of a supplemental complaint.
    The action was originally brought by the plaintiffs’ testator to restrain the maintenance and operation of the defendant’s railroad in front of premises owned by him.
    
      W. W. Badger, for the appellants.
    
      William H. Godden, for the respondent.
   O’Brien, J.:

The plaintiffs served a supplemental complaint which the "defendant’s attorney duly returned with a notice that allegations were ' inserted in such pleading which were not within the terms of the order granting leave to serve the supplemental complaint. Thereupon the plaintiffs moved to compel its acceptance, which motion was denied, and from the order entered thereon this appeal is taken. The original motion to serve a supplemental complaint was made oil the petition of the plaintiffs, asking for an order continuing the action and substituting the plaintiffs in place of their testator, and for leave to serve a supplemental complaint setting forth the facts relating to the devolution of title. No opposition was made to such application, but the judge, at the request of the defendant’s counsel, directed that the order be settled on notice. The defendant submitted a proposed order, which the plaintiffs refused to approve as to form, taking the position that, although they only asked for leave to continue the action and to interpose a supplemental complaint setting forth the devolution of title, yet they could as the result of granting such application, change the original complaint by setting up facts not included in the original complaint with respect to a third track on the defendant’s railway and the operation of express trains thereon since the commencement of the action. The proposed order of the defendant and one proposed by the plaintiffs were submitted to the learned justice who heard the application, and he settled the order by signing the one proposed by the defendant, which, after reciting the petition and making other provisions, concludes as follows: “ And that they have leave as such to serve a supplemental complaint herein within thirty days from the entry of this order, setting forth the facts alleged by them as to the devolutian of the title to the premises and causes of action described in the complaint herein.”

The only subject open to discussion is as to the construction to be given to the language used in the order. Did this permit a change in the original pleading by setting up facts with respect to the third track and the operation of express trains thereon, though not included in the allegations of the original complaint ?

The doubt, if any exists, must be resolved in the defendant’s favor, because that question was directly presented to the judge making the order. He having limited the scope of the supplemental complaint, the plaintiffs’ right, if aggrieved thereby, was to apjseal; but they could not, in direct opposition to the order, embrace within the supplemental complaint facts for which leave had not been obtained. The attempt to secure greater relief than was permitted was properly met by the defendant’s returning the pleading. Tire Code (§ 544) permits the service of a supplemental complaint, but leave therefor must be obtained from the court. The remedy in that respect is to move for just the relief which the party wishes, and the practice requires that the proposed supplemental complaint should be part of the motion papers. After an opportunity to be heard upon the motion, the court makes its order, and then to either party is accorded, as already said, the right to appeal if aggrieved by the order. But certainly it is not correct practice to include in a supplemental complaint facts or allegations for which the court’s permission has not been obtained.

We think the order was right and should be affirmed, with ten dollar’s costs and disbursements.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  