
    McANDREW v. LAKE SHORE & M. S. RY. CO.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Supplemental Answer—New Matter.
    Plaintiff brought separate actions against a railroad company,—one for personal injuries, and the other for injuries to his horse,—both causes of action arising out of the same accident. Helcb, that a judgment for plaintiff in one of the actions was not within Code Oivii Proc. § 544, providing that the court may allow a party to file a supplemental answer “alleging material facts which occurred after his former pleading * * * including the judgment of decree of a competent court, rendered after the commencement of the action, determining the matters in controversy.”
    
      Appeal from special term, Erie county.
    Action by Alexander McAndrew against the Lake Shore & Michigan Southern Railway Company. From an order dated June 13, 1892, denying a motion for leave to serve a supplemental answer to the complaint, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWHS, MACOMBEB, and HAIGHT, JJ.
    Charles A. Pooley, for appellant.
    George E. Towne, for respondent.
   MACOMBEB, J.

It appears that this plaintiff brought two actions against the defendant to recover damages for alleged negligence growing out of the same accident; one of them being for personal injuries sustained by the plaintiff, and the other for the injuries and damage done to his horses, wagon, and harness. The action for personal injuries was tried in September, 1891, at the Chautauqua circuit, and resulted in a verdict for the plaintiff, and the judgment entered thereon has since been paid and satisfied by the defendant. Thereafter the defendant made a motion at the special term for an order in the action brought to recover for injuries to the plaintiff’s personal property for leave to serve an amended or supplemental answer, by which it was sought to set up the judgment in the former action as a bar to any recovery in the second action. From an order denying such motion this appeal is taken.

Section 544 of the Code of Civil Procedure provides:

“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, including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof.”

We do not think that the defendant brings itself within the spirit of this section of the Code. Undoubtedly it was competent for the plaintiff to have joined in the same complaint both causes of action but, not having done so, there was open to the defendant one of two courses to pursue: First, it being evident that both causes of action grew out of the same casualty, the defendant could have set up in each case the pendency of the other action, (Secor v. Sturgis, 16 N. Y. 554; Nathans v. Hope, 77 N. Y. 422; Lorillard v. Clyde, 102 N. Y. 59, 6 N. E. Rep. 104;) or, secondly, upon motion to the court, it could have effected a consolidation of the two actions, (Code, § 817.) The order appealed from should be affirmed.

Order appealed from affirmed, with $10 costs and disbursements. All concur.  