
    McMAHON a. ALLEN.
    
      New York Common Pleas ;
    
    
      General Term, March, 1856.
    
      Again,—Special Term, June, 1856.
    Supplemental Complaint.—Relief.—Amendment.
    Leave will not be granted to file a supplemental complaint which alleges any fact known to the plaintiff at the time of commencing the action.
    It is improper to join in one complaint prayers for relief against the defendant individually and in his capacity as executor, &c.
    
    
      Leave to file a supplemental complaint will not be granted where the object can be
    accomplished by amendment.
    Upon what terms leave to amend should be granted in such case.
    I. March,. Appeal from an order denying leave to file a supplemental complaint.
    This action was brought by Dennis McMahon, jr., as administrator with the will annexed of Euth S. Eathbone, against Thomas E. Allen. The object of the action was .to enforce an accounting for moneys received by the defendant as agent of John Harrison, deceased, who had been the executor of Eathbone, and thus the predecessor in administration of the plaintiff.
    The defendant was the executor of John Harrison, but was not sued as such, by the original complaint.
    On trial before a referee, he was of opinion that it was necessary, in order to procure a final accounting, that the plaintiff should bring in the defendant in his capacity as executor of Harrison.
    The plaintiff moved before Judge Woodruff for leave to file a supplemental complaint. The complaint submitted contained an allegation that in April 1850, which was just before the commencement of the suit, Solomon Kipp, trustee of the separate estate of Euth S. Eathbone, made an assignment to the plaintiff of the trust estate. It also asked relief against the defendant both individually and as executor.
    The motion was denied, and plaintiff appealed.
    The appellant in person.
    
      Albert Matthews, for the respondent.
    
      
       See Landau a. Levy, 1 Ante, 376.
    
   Brady, J.

It would be sufficient perhaps to state that the motion on which the order appealed from was made, was for leave to file a supplemental complaint containing one material allegation at least, which was known to the plaintiff when this action was commenced; viz. that he had been made the assignee of the trustee, Solomon Kipp, in the manner and by the authority for that purpose and to that end alleged in such allegation, which was an objection to the leave sought by the motion. The section of the Code (177) allowing parties litigant on motion to make supplemental pleadings applies only where the facts occur after the former pleading, or where the party was ignorant of them when such former pleading was made. (Houghton v. Skinner, 5 How. Pr. R., 420).

There was however another objection to such complaint, and that is, that it prays relief against the defendant in his individual capacity and as executor of John Harrison, deceased; not in express terms, it is true, but in language sufficiently broad for that purpose, praying as it does that this court may settle the whole controversy now subsisting between the plaintiff a/nd, the defendant, and that too after an allegation which is new, that the defendant since the commencement of this action became such executor. There is no doubt that this action cannot be maintained against the defendant individually and as an executor. “ His rights,” as said Judge Woodruff, “ in these separate characters, are distinct, and his relations to this, plaintiff, as well as to those who are interested in the estate of his testator, are distinct.” Besides this, the judgment would be different in many respects; and the rule as to costs depend-ant not on the plaintiff’s success alone, which would follow if the defendant were sued as an individual, but on the conduct of the defendant, or on reference to the special circumstances, contemplated by the statute relative to that subject.

Again, it seems to have been the well settled rule in equity that leave to file a supplemental complaint was never granted where the object could be accomplished by amendment, (1 Hoff. Ch. Pr., 393; 1 Smith’s Ch. Pr., 526; Mitford PI., 60), and in courts of common law jurisdiction, the defect of a pleading was always cured by amendment, when the amendment was proper and allowable.

The allegation of the plaintiff’s character derived from the-assignment by Kipp is a fact which was known, as stated,, when this action was commenced, and would have formed the subject of amendment under either of the old systems, but could not have been averred by way of supplemental bill in equity..

It is not necessary to consider the various questions involved in the points submitted on the appeal, the objections already stated to the relief asked by the motion being sufficient to-

•sustain the order of Judge Woodruff, and that order must he affirmed with $10 costs.

Order affirmed.

II. June. Motion at special term for leave to amend the complaint.

Brady, J.

This is a motion for leave to amend the complaint by inserting allegations of the insolvency of John Harrison at the time of his death, and that the plaintiff, by virtue of two assignments from Solomon Kip, respectively • dated April 26, 1850, and April 27, 1850, and also by order of the Supreme Court, in pursuance of which the same were executed, became, was and is entitled thereby, and by force of his said character of special administrator, to the relief demanded in the complaint.

¡Numerous objections to the proposed amendments were presented, and elaborately discussed on the motion; prominent .among which was the delay of the plaintiff in asking the favor •of the court. I have given to them all such consideration as the time which has expired since the motion has permitted, and I have arrived at the conclusion that the-motion must be granted. Both of the facts to be alleged, if they existed at all, existed prior to the commencement of this action, and on the motion heretofore made for leave to file .a supplemental •complaint we held on appeal that such leave was not granted ■when the same object could be accomplished by amendment. I do not design to consider and discuss the. various objections to -which I have referred, but simply to state that upon an examination of the papers and authorities read and referred to on the motion, I think substantial justice requires that the amendment should be allowed.

I have not been insensible to the cogency of the argument of the defendant’s counsel, or to the force of the facts which were grouped and arrayed against this application, but on a motion of this character I do not deem it necessary to pass upon the merits of the controversy, or to determine ejther the validity of the claim or the plaintiff’s right of action. Those •questions must be presented in another form and in a different manner. It was only necessary to apply the terms which the court has adopted in similar cases to indemnify the defendant for the expenses to which he has been subjected, if the new allegations paralyze his defence. There is no hardship in this. If the complaint were dismissed and the statute of limitations did not intervene, the plaintiff would have the right immediately to commence anew, and if any doubt existed on that subject, that would afford an additional reason why the amendments should be permitted. The books furnish precedents for amendments after years of litigation, the courts imposing terms only upon the applicant.

The amendments proposed and recited herein and in the moving papers, with the amendment of the prayer for relief to correspond with the new allegations, will be allowed on payment of $10 costs of the motion, but if the defendant withdraws his defence, then on payment of all his costs—the amendment to be without prejudice to the defendant’s rights in any respect, and the defendant’s answer already interposed to be considered as denying such allegations and putting them in issue, unless the defendant prefers to answer over ; but the testimony already taken in the cause on other issues to remain undisturbed.  