Berford v. New York Iron Mine

Superior Court of New York

Berford v. New York Iron Mine

8 N.Y.S. 193, 1890 N.Y. Misc. LEXIS 1562

CourtThe Superior Court of the City of New York and Buffalo

DecidedJanuary 6, 1890

StatusPublished

Cited by1 cases

This text of 8 N.Y.S. 193 (Berford v. New York Iron Mine) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berford v. New York Iron Mine, 8 N.Y.S. 193, 1890 N.Y. Misc. LEXIS 1562 (superctny 1890).

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Opinion

Freedman, J.

The judgment on the demurrer, which is still in force, determined’that the facts set forth in the complaint, and existing at that time, constitute no cause of action against the defendant. That being so, the plain[194]*194tiff will not be permitted to file and serve a supplemental complaint, setting up facts which did not exist at the time of the commencement of the action. Trust Co. v. Telegraph Co., 47 Hun, 315. Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought be made a part of plaintiff’s case, so as to turn what is no cause of action at all into a good cause of action. McCullough v. Colby, 4 Bosw. 603; Muller v. Earle, 37 N. Y. Super. Ct. 388. The cause of action now sought to be maintained by means of a change of the original complaint only arose when the dividends were declared, and such declaration occurred long .after the commencement of the action. The fact that the declaration, at the time it was made, is alleged to have been made nunc pro tune, as of the years 1877 to 1882, can make no difference. The reason already given being decisive, it is unnecessary to discuss any other question. The order should be , affirmed, with $10 costs and disbursements.

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Freedman, J.

The judgment on the demurrer, which is still in force, determined’that the facts set forth in the complaint, and existing at that time, constitute no cause of action against the defendant. That being so, the plain[194]*194tiff will not be permitted to file and serve a supplemental complaint, setting up facts which did not exist at the time of the commencement of the action. Trust Co. v. Telegraph Co., 47 Hun, 315. Neither by amendment of the original complaint nor by supplemental complaint can facts which occurred after suit brought be made a part of plaintiff’s case, so as to turn what is no cause of action at all into a good cause of action. McCullough v. Colby, 4 Bosw. 603; Muller v. Earle, 37 N. Y. Super. Ct. 388. The cause of action now sought to be maintained by means of a change of the original complaint only arose when the dividends were declared, and such declaration occurred long .after the commencement of the action. The fact that the declaration, at the time it was made, is alleged to have been made nunc pro tune, as of the years 1877 to 1882, can make no difference. The reason already given being decisive, it is unnecessary to discuss any other question. The order should be , affirmed, with $10 costs and disbursements.

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Bluebook (online)

8 N.Y.S. 193, 1890 N.Y. Misc. LEXIS 1562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berford-v-new-york-iron-mine-superctny-1890.

Opinion

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