Berford v. New York Iron Mine

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

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 plaintiff 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.