
    (120 App. Div. 392)
    TRUST CO. OF NEW YORK v. UNIVERSAL TALKING MACH. CO. et al.
    (Supreme Court, Appellate Division, First Department.
    June 28, 1907.)
    Motions—Order—Res Judicata—Matters Concluded.
    Where, after the sustaining of a demurrer to a complaint with leave to amend, an “amended and supplemental” complaint was served, and, on motion, certain allegations thereof were stricken out, the order striking out such allegations was not res judicata of the right to subsequently serve a supplemental complaint, containing substantially the same allegations as those stricken out; such allegations being appropriate only to a supplemental pleading.
    Appeal from Special Term, New York County.
    Action by the Trust Company of New York against the Universal Talking Machine Company and another. From an order denying plaintiff’s motion for leave to serve a supplemental complaint, it appeals.
    Reversed, and motion granted.
    Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and LAMBERT, JJ.
    Frank Cochran (Waldo G. Morse, on the brief), for appellant.
    Gustav Lange, Jr., for respondent.
   HOUGHTON, J.

Plaintiff has found some difficulty in framing its complaint to its own satisfaction and to that of the courts. Its original complaint, which sought to amend the mortgage given by the defendant, was demurred to and the demurrer sustained, with leave to amend upon payment of costs of the trial and appellate courts. 90 App. Div. 207, 86 N. Y. Supp. 60. In pursuance of the leave granted on the sustaining of this demurrer to serve an amended complaint, the plaintiff served what it called an “amended and supplemental” complaint, and, on motion, certain portions of this complaint w.ere stricken out. Thereafter plaintiff moved to be permitted to serve the supplemental complaint which appears in the record, and from a denial of that motion this appeal is taken.

It is claimed that the order striking out certain portions of the “amended and supplemental” complaint, which were substantially like the allegations contained in the present supplemental complaint, and which order was not appealed from, is res adjudicata of plaintiff’s right to now serve any additional pleadings containing the same allegations. We do not concur in this view, for the allegations which were stricken out had no place in the amended complaint which was permitted to be served after the sustaining of the demurrer, but were appropriate only to a supplemental pleading. While the supplemental complaint contains allegations and asks relief somewhat different from that demanded in the original complaint, we are of the opinion that, upon proper terms leave to serve should have been granted.

The order appealed from is reversed, without costs, and the motion for leave to serve a supplemental complaint granted, upon payment by plaintiff of $10 costs of the motion and of all costs of the action not heretofore paid. All concur.  