
    Lafayette Trust Company, Respondent, v. Edward S. Peck, Appellant. Lafayette Trust Company, Respondent, v. Edward D. Street, Appellant. Lafayette Trust Company, Respondent, v. John E. Fairbanks, Appellant. Lafayette Trust Company, Respondent, v. Elmer B. Yale, Appellant. Lafayette Trust Company, Respondent, v. Richard J. Foster, Appellant.
    Second Department,
    June 4, 1909.
    Pleading—supplemental complaint — contract — change in cause of action;
    A cause of action set forth in a complaint may not he changed by a supplemental complaint,, the office of Which is-to supplement a good complaint, not to eke out a had one;
    Where the complaint in an action sets .up a contract and seeks, to recover the , amount which it is.,alleged the'defendant•obligated himself to pay therein,, and the answer'claims that the agreement only gives a right of action for a deficiency arising after the sale of certain bond's, and the plaintiff during the pendency of the action sells the bonds, he should not be granted leave to serve a supplemental complaint setting, forth the sale and the deficiency thereon.
    Appeals by the-respective defendants from sepárate orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1909, granting the, plaintiff’s motion for leave to: serve' a supplemental complaint. • !
    
      Rollin Tracy [Edward S. Peck with him oh the brief], for the appellants. .
    
      Ward W. Pickard [Almet Reed Latson with him on the brief], for the respondent.
   Gaynor, J.:

The complaint is on á written contract to which the plaintiff,- one Laws, and twelve other persons, of whom each- defendant is one, are "" " *~ ' : ‘ ' " the parties. The said twelve persons agree respectively to purchase the number of bonds of a certain corporation set opposite their several names at 85 per cent, of par, and the plaintiff agrees to loan to Laws a sum equal to the 85 per cent, thus agreed to be paid, viz., $128,000, the said bonds, together with the said subscribers’ agreements to. pay therefor, to be held by it as, collateral security for the loan. The said subscribers .also agree to pay the said loan if Laws should fail to do so, viz., each an amount equal to his said subscription, in default of which the agreement provides that the said bonds subscribed for by such defaulting subscriber “ may ” be sold by the plaintiff, and that if the proceeds be insufficient to pay such defaulting subscriber’s share of such loan, he is to pay the deficiency. Instead of selling the bonds subscribed for by this defendant, and suing him for the deficiency, if there should be one, the complaint is for the recovery of the amount he obligated himself to pay. The defendant claims that the agreement gives no such cause of action, but only a cause of action for such deficiency arising out of such a sale. The plaintiff therefore sold the bonds during the pendency of the action, and applied for leave to serve a supplemental complaint showing such sale and the deficiency thereon. The motion should have been denied, for if the defendant’s construction of the said agreement is correct, no cause of action had yet accrued to the plaintiff when this action was brought, and if the cause of action alleged, viz., for the whole amount, without alleging a sale and a deficiency, is good, then the plaintiff can credit the defendant on the trial with the proceeds of the sale without the aid of a so-called supplemental complaint. The attempt seems to be to change, the complaint to a new cause of action by a supplemental complaint, and that is not permissible. A supplemental complaint is to supplement a good complaint, not to eke out a bad one (Farmers' L. & T. Co. v. United Lines Tel. Co., 47 Hun, 315).

The orders should be reversed.

Hirschberg, P. J"., Jerks, Rich and Miller, JJ., concurred.

Orders reversed, with ten dollars costs and-disbursements in each case, and motions denied, with costs in each case.  