
    John D. Park & Sons Company, a Corporation Organized under the Laws of the State of Kentucky, Respondent, v. Charles Hubbard and Others, Appellants.
    First Department,
    November 12, 1909.
    Equity—distinction between law and equity still exists—pleading— supplemental complaint in suits in equity and actions at law—torts subsequent to commencement of action at law.
    Section 3339 of the Code of Civil Procedure, stating that there is but one form of civil action and that the distinction between actions at law and suits in equity has been abolished, does not mean that the essential characteristics which distinguish the two have been abolished, but merely goes to matters of form, not substance.
    The court will allow a supplemental complaint to be filed in a suit in equity alleging facts occurring since the commencement of the suit which are necessary to enable the court to shape its relief to the situation existing at the time of trial. But in an action at law the entire cause of action must have existed at the time of the commencement thereof, and, with a few exceptions, subsequent damages cannot be recovered.
    Thus, where twelve years have expired since the commencement of a legal action to recover for a number of tortious acts, and the plaintiff during that period has served two amended complaints, the court has no power to permit him to file a supplemental complaint bringing a large number of additional and independent torts into the case, where the Statute of Limitations has run against many of them and the damages are increased from $500,000 to $3,500,000.
    Appeal by the defendants, Charles Hubbard and others, 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 12th day of July, 1909, granting the plaintiff’s motion for leave to serve and file a supplemental complaint.
    
      Norman B. Beecher of counsel, Herman S. Hertwig, Don. A. Adams with him on the brief [Robinson, Biddle & Benedict, attorneys], for the appellants.
    
      Alton B. Parker of counsel [Henry T. Fay, attorney], for the respondent.
   Clarke, J.:

This action was commenced August 22,1897, to recover $500,000 for damages alleged to have been sustained by the plaintiff by reason of the acts of the defendants in entering into and carrying out certain combinations, conspiracies and agreements with respect to the sale of what are known as patent medicines or proprietary goods. ' Plaintiff brought another action in equity to obtain an injunction against the doing of the alleged acts and the carrying out of the alleged agreements which were claimed to be illegal and to amount to a combination in restraint of trade. To the complaint in equity in that suit the defendants demurred, which demurrer was sustained by the Appellate Division (Park & Sons Co. v. Nat. Druggists' Assn., 54 App. Div. 223), and finally by the Court of Appeals in April, 1903, and reported in 175 New York, 1.

On June 11, 1898, permission was granted herein to serve an amended complaint which was served on August 1,1901. On September 30, 1903, after the decision of the Court of Appeals in the equity case, at the plaintiff’s request defendants consented to the service of another amended complaint to which an answer was served Hovember 17,1903. Both parties at once noticed the case for trial and it was placed upon the calendar, where it has since remained.

In May, 1907, in an action brought by the United States against the members of said combination, including these defendants, a decree was entered by consent enjoining the further continuance of the combination; and thereupon in September or October of 1907, the members of said combination, by resolution, rescinded and abandoned the further carrying out of their plans and the further doing of said acts.

On May 11, 1909, plaintiff made a motion for leave to serve a supplemental complaint setting up numerous additional acts, some alleged to have been perpetrated prior to the commencement of the action and the rest subsequent thereto, for which damages are claimed and increasing the amount of the damages so claimed from $500,000 to $3,500,000. The Special Term granted the motion and from the order entered thereon this appeal is taken.

In brief, twelve years after the commencement of an action at law, after the complaint had been twice amended, the last amended complaint having been served September 30, 1903, a supplemental complaint has been allowed to be served which alleges wrongful acts committed since the commencement of the action and claims damages therefor to the extent of $3,000,000. The plaintiff claims that section 544 of the Code of Civil Procedure confers upon it a strict legal right to the relief granted. Said 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; 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. * * *”

While it is true that section 3339 of the Code of Civil Procedure provides that There is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions and suits have been abolished,” it is not true that the essential characteristics which distinguish actions at law from suits in equity have been abolished. The form of a pleading no longer controls. The complaint must contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and a demand of the judgment- to which the plaintiff supposes himself entitled. (Code Civ. Proc. § 481.) But whether the action shall proceed to trial as at common law before a jury of twelve men, or at equity before the court, and the relief granted, is still to be determined by the settled principles governing and distinguishing the practice at law and in equity. What was sought to be accomplished was abolition of form, but substance was retained. A distinguishing characteristic of equity was the power to enjoin the performance and continuance of acts which might cause irreparable- injury and as an incident to a decree the payment of such damage as had been caused. It was always the custom for equity to shape its flexible decree as required by the facts shown at the time of the trial, which included, of course, the ascertainment and award of damages down to said time. Therefore, it was proper, and it has been the continuous practice in equity, in accordance with that settled policy to allow the service of a supplemental complaint which would set forth such facts as had occurred after the commencement of the suit as were necessary to enable the court to so shape its relief.

In actions at law, on the other hand, it was the settled rule that the entire cause of action must have existed at the time of the commencement of the suit,' and it was in but a few exceptional cases that damages which had not then accrued could he recovered. Said Judge Earl, in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98): “ There never has been in this State before this case the least doubt expressed in any judicial decision, so far as I can discover, that the plaintiff in such a case is entitled to recover damages only up to the commencement of the action. That.such is the rule is as well settled here as any rule of law can be by repeated and uniform decisions of all the courts. * * * In Williams v. Railroad Co. [16 N. Y. 97] and Story v. Railroad Co. [90 N. Y. 122] a resort to equity was allowed because the necessity of bringing successive actions to recover damages would thus be obviated. If in those cases the plaintiffs could have recovered all their damages past and prospective, in actions at law, equitable actions would have been unnecessary and unauthorized.” One recognized exception was an action for damage's for breach of contract of employment. A right of action accrued upon the breach, and a suit might then be brought, and if such action came to trial after the term of employment had expired, then damages might be found as for the whole term, and not otherwise. (Everson v. Powers, 89 N. Y. 527.) The breach gave but one case of action, and satisfaction could be had only in that action. So in an action quo warranta, the Court of Appeals held in People ex rel. Swinburne v. Nolan (101 N. Y. 539) that inasmuch as by the peculiar wording of the statute then in force relator might recover in the same action against the defendant the damages which he had sustained in consequence of the defendant’s usurpation or intrusion into and unlawful holding or exercise of the office, a supplemental complaint was proper, setting up the expiration of the term and claiming damages.

These exceptions accentuate the general rule, which we do not think has been affected by the provisions of section 544 of the Code of Civil Procedure. The language is, “ The court may, and, in a proper case, must.” We think such a case would be presented by a devolution of title for instance, but the supplemental complaint must always, it seems to us, present facts in aid of the original cause of action, and not facts setting forth an entirely new and independent cause of action coming into existence subsequent to that cause of action for which the suit was brought. Here we have a case which originally set up a large number of tortious acts, by the perpetration of whiph it was alleged damage had been inflicted upon the plaintiff to the extent of $500,000. It is now sought to inject into the case a large number of additional and independent tortious acts claimed to have damaged the plaintiff in the additional sum of $3,000,000, twelve years after the commencement of the action, against a large number of which acts it'is evident that the Statute of Limitations has run. Ho case presenting facts similar to the one at bar allowing the service of such a supplemental complaint as this has been presented to us; nor have we found that section 544 of the Code (supra) has been invoked as an authority for the service of such a supplemental complaint in an action at law. The cases cited by respondent have been examined. Most of them were equity cases, or came within the recognized exceptions alluded to. We find that the TJline case stands unreversed and unaffected by later decisions. The rule still is that in actions at law the rights of the parties must be determined as at the commencement of the action, with certain exceptions.

We intend to put our decision squarely upon the proposition that the allowance of such a supplemental complaint as is here in question is not within the power of the court; but we further say that the Court of Appeals has many times held that the determination of whether under said section of the Code a supplemental pleading should be served is one within the discretion of the Supreme Court. (Fleischmann v. Bennett, 79 N. Y. 579.) Evidently this pleading is not in aid of the cause of action here set up. The supplementary facts here presented, if constituting causes of action, are independent tortious acts for which independent suits, if brought in time, might have been instituted. The plaintiff did not choose to institute such suits, and it may not at this late day inject them into this case whose issues have been so long made up.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  