
    FISK against THE ALBANY AND SUSQUEHANNA RAILROAD COMPANY.
    
      Supreme Court, First District; Special Term,
    
    
      May, 1870.
    Supplemental Pleading.—Leave to File.
    Under the Code of Procedure, leave to file a supplemental complaint may be granted ex-parte,
    
    lb is not usual to require notice of motion for such leave to be given, unless an injunction or some other special relief is sought upon the matter of the supplemental complaint.
    Motion for leave to file supplemental complaint.
    This action was brought by James Fisk, Jr., against the Albany & Susquehanna Railroad Company, Joseph H. Ramsey, .and numerous other individual defendants. The plaintiff, a stockholder in the railroad company, sued on behalf of himself and all" other stockholders who might come in, to compel payment for the benefit of the corporation, g,nd its creditors, &c., of stock alleged to have been issued by certain of the defendants, as officers of the corporation, to other defendants, or to themselves, or subscribed for in fraud of the rights of other stockholders.
    
      After a preliminary injunction, the plaintiff applied to the court, ex-parie, for leave to file’ a supplemental complaint. The justice to whom the application was made suggested that notice should be given, which was accordingly done, and the application was now brought before the court on such notice.
    Upon the hearing of the motion, plaintiff’s counsel produced, besides the supplemental complaint, of which he had given notice, a second or amended supplemental complaint, containing additional allegations, and intended to take the place of the one previously drawn, and asked leave to file the same.
    
      Field & Shearman, for the motion.
    
      John H. McFarland, opposed.
   Cardozo, J.

Two applications are made to me for leave to file supplemental bills in this cause. The first upon notice upon, as stated before me, the suggestion of Judge Beady, that according to chancery practice, that was necessary ;—the other ex-parte. As the latter bill covers all of and more than that set up in the former, if the latter application be granted, it will supersede the former, for there can be no necessity for both.

The question then arises, is notice necessary % and I find that I correctly stated on the argument that it was a mistake to suppose that it was so, according to the practice in chancery.

The rule is accurately stated in 2 Barb. Ch., 73, 74, citing Eager v. Price, 2 Paige, 333, and Lawrence v. Bolton, 3 Paige, 294, from which it is extracted. The author says, “ A supplemental bill cannot be filed without a previous o*rder of the court giving permission. In ordinary cases, the defendant is not entitled to notice of the application for such order. ¡Notice of the motion is necessary only where the complainant asks for a preliminary injunction, or some other special relief upon the matter of the supplemental Ibill, previous to the time for the appearance of the defendant thereto. Of course, the court can direct notice to he given, but such it is seen is not the usual practice where nothing but leave to file the supplemental bill is sought. On the éx20 arte application, the court examines the question only so far as to see that the privilege is not abused for the purposes of delay and vexation to the defendant. It does not try the cause upon such an application, but leaves the defendant, as a general rule, to his remedy by plea, answer or demurrer, if the bill is filed without sufficient grounds.”

It is only necessary to say that the Code has made no change in this respect. Every application to the court is a motion; but every motion is not necessarily to be made upon notice; and as there is no section of the Code which requires notice of this motion, the proper course is to govern the practice according to the rules which prevailed under similar circumstances before the adoption of the Code.

Tested by the rule as I have shown it to be, leave should be granted as asked, leaving the defendants to their remedy by answer or demurrer, or such motion as they may be advised to make.

Leave to file the supplemental bill last presented to me is therefore granted.  