McRoberts v. Pooley, 1 N. Y. St. Rep., 725.

general reference to the statute under which the action was 2 brought, as required by Code Civ. Pro., § 1897.

The action was brought by Alexander C. Lassen against Albert Aronson under the laws of 1890, chapter 564, § 29, to recover a penalty for defendant's refusal to allow an inspection of the books of a stock corporation.

After the service of the summons without the complaint, defendant's attorney served a notice of appearance. This motion was made upon defendant becoming aware of the nature 3 of the action by the service of the complaint.

GILDERSLEEVE, J. The failure to comply with the provisions of section 1897 of the Code is fatal to the validity of the service of the summons, and leaves the court without jurisdiction over the person of the defendant. The defect was not remedied by the defendant's appearance for the reason that it did not appear upon the face of the summons.

appearance.

Defendant has leave to withdraw his notice of Summons set aside and complaint dismissed, with costs.

4

MCROBERTS v. POOLEY.

Superior Court of Buffalo, General Term, 1886.

[Reported in 1 N. Y. St. Rep., 725.]

1. It is not necessary that a supplemental complaint should set up all the facts constituting the plaintiff's cause of action, or showing that those originally made defendants are proper parties to the action; nor is it necessary that it should repeat the allegations of the original complaint.

2. The essential purpose of a supplemental complaint is to set out such material facts as have occurred since the former complaint [or of which plaintiff was ignorant when it was made], which may change the position and rights of the parties, and vary the relief to which plaintiff is entitled.

Plaintiff, by leave of court, served a supplemental complaint, 1 to which defendant demurred. The issue of law thereon was tried at the General Term of the court, in the first instance, as is the practice in that court [C. C. P., § 297.]

2

3

McRoberts v. Pooley, 29 Abb. N. C., 114.

SMITH, Ch. J. The original complaint in this action, as amended, shows that it was commenced to foreclose a mortgage upon real estate, executed by the defendant Mary A. Pooley and others. She put in an answer, which still stands as a pleading in the action, by which she denied each and every allegation contained in the amended complaint, and also averred that each and every mortgage, claim and demand set forth therein had been fully paid, satisfied and discharged before this action was commenced. Afterwards the plaintiff obtained an order of this court permitting him to serve a supplemental complaint, by which he averred that the real estate upon which the mortgage in suit was executed had been sold upon the foreclosure of a prior mortgage thereon, that certain surplus moneys, arising under the last mentioned foreclosure, had been applied upon the plaintiff's mortgage debt, and that by means of certain other securities held by the plaintiff he had realized a further sum which had been also applied on his mortgage debt, by means whereof that debt had been reduced from the amount claimed in the amended complaint (which was $8,397.19 besides interest) 4 to the sum of $1,906.38, and interest for which he demands. judgment, who, as the amended complaint alleges, are personally liable to pay the same. The amended complaint prayed for judgment against the same defendants for so much of the mortgage debt as should not be satisfied by a sale of the mortgaged premises on the judgment of foreclosure sought in the

5

action.

This defendant demurs to the supplemental complaint upon two grounds; first, that there is a defect of parties defendant, in that she is not a necessary or proper party to the cause of action stated in that complaint; and second, that the supplemental complaint does not state facts sufficient to constitute a cause of action against her.

The defendant who interposes this demurrer seems to have wholly misapprehended the office and province of a supplemental complaint. The Code (§ 544) provides that the court may permit a party "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,

1

McRoberts v. Pooley, 29 Abb. N. C., 114.

including the judgment or decree of a competent court, rendered 6 after the commencement of the action, determining the matters in controversy, or a part thereof."

Obviously it is not necessary, nor was it ever intended, that the supplemental complaint should set up all the facts constituting the plaintiff's cause of action, or showing that those originally made defendants were proper parties to the action.

Its province is only to set out such material facts as have occurred since the former complaint which may have changed the position and rights of the parties, and thus varied the relief to which the plaintiff is entitled. This is sometimes the result of a judgment or decree in another action determining the matters in controversy between the parties or some part thereof. Such is the case here.

7

The foreclosure of the prior mortgage upon the same premises as were covered by the plaintiff's mortgage, and the sale of those premises for a sum which created a surplus, which the plaintiff was entitled to have applied on his mortgage debt, and which had been so applied, made a very material change in the rights of the parties to the action, and when properly brought before 8 the court show that the plaintiff no longer requires, or should be allowed to have, a foreclosure of his mortgage; and that the relief to which he is now entitled, and the only relief he can have in the action, is a personal judgment against the defendants liable to pay the debt secured by his mortgage for as much of that debt as now remains unpaid. To show how the plaintiff's rights have changed since he commenced his action, and to what relief he is now entitled is the only purpose of his supplemental complaint. It is not necessary that he should repeat the allega- 9 tions contained in his amended complaint. That is still before the court, a part of the record, and when read with the supplement thereto shows the present state of the plaintiff's demand and the relief which he now asks for.

These considerations show that the demurrer cannot be sustained, because it was not necessary that the supplemental complaint should show all the facts constituting the plaintiff's cause of action, or that the defendant who demurs was properly made a party to the action, but only those facts arising since the

McRoberts v. Pooley, 29 Abb. N. C., 114.

10 former complaint, which have changed the rights of the parties and made other relief proper than that demanded in that complaint. See Abbott's Annual Digest for 1884, p. 262, note of decision in Frericks v. Coster.

The defendant's counsel thinks his client has no resource but to demur, and that if she does not judgment will be taken against her. But this is not so. If the allegations of the supplemental complaint are true she must admit them, and that cannot deprive her of any right. If they are false she can deny them, and the plaintiff can gain nothing, nor can she lose anything, by 11 his false allegations. When she comes to trial she may stand on her original answer, and if then the plaintiff proves no cause of action against her, she will have judgment dismissing his complaints, both the former and the supplemental one, as to her, and with or without costs, as equity shall require. Clearly the plaintiff can have no judgment against her unless, upon the facts appearing upon his former complaint and the supplemental one, taken together and proved on the trial, he shows an existing cause of action against her, and that he is entitled to relief 12 against her also.

There must be judgment for the plaintiff upon the demurrer, with leave to defendant to answer in twenty days, on payment of

costs.

BECKWITH and TITUS, JJ., concur.

ADDENDA.

NOTES OF RECENT CASES.

COMPLAINTS IN ACTIONS FOR THE PRICE OF GOODS SOLD.

[Principal Case, p. 1, this Vol.]

California.-Bedel v. Kowalsky, 99 Cal., 236; s. c., 33 Pac. Rep., 904. (Where acceptance is alleged, complaint is not demurrable, though it fails to show delivery within the time agreed.) Illinois.—Keyes v. Binkert, 48 Ill. App., 259. (In an action on express contract, no allegation of defendant's promise to pay the damage which the law imposes for the breach of the contract is necessary; otherwise if the action is on a constructive contract.) Indiana.-Neal v. Shewalter, 5 Ind. App., 147; s. c., 31 N. E. Rep., 848. (In an action for the price of goods sold under an executory contract, which stipulated that the goods should be first class, plaintiff need not allege that they were first class.) Maine.—Wellington v. Milliken, 82 Me., 58; s. c., 19 Atl. Rep., 90. (An averment of a subsequent parol agreement changing the place of delivery is traversable, and must be laid on some particular day.) Nebraska.-Powder River Live Stock Co. v. Lamb., 38 Neb., 339; s. c., 56 N. W. Rep., 1019. (Complaint held bad on demurrer, which set up a verbal contract for the sale of goods of over the value of $50, and attempted to take the contract out of the statute by merely alleging a delivery of the goods to the defendant without averring that he received and accepted them.) New York.-Logan v. Berkshire Apartment Ass'n, 3 Misc., 296; s. c., 22 N. Y. Supp., 776; 52 State Rep., 132. (Where defendant's acceptance is alleged, performance by plaintiff within the time fixed by the contract, or within a reasonable time, need not be alleged.) Oregon.-Duzan v. Meserve, 24 Oreg., 523; s. c., 34 Pac. Rep., 548. (Complaint alleging the sale of plaintiff's right, title and interest in the goods is not defective for failing to define plaintiff's interest in the property.) United States.-Buckstaff v. Russell, 151 U. S., 626; s. c., 14 Supm. Ct., 448. (In an action for a deferred payment for machinery delivered, complaint need only allege the delivery and the expiration of the time in which the payment was to be made, without alleging the fulfillment of a warranty that the machine should work to defendant's satisfaction, though the contract provided to the effect, that in case the machine was not satisfactory, and plaintiffs on notice failed to make it so, defendant might declare the contract paid in full, or demand back what had been paid with damages, and surrender the machine.) Washington.-Tingley v. Fairhaven Land Co., Wash., 1894, 36 Pac. Rep., 1098. (Where it is alleged that defendant took possession of the goods, an allegation of a tender thereof is unnecessary.)