Brinberg v. Oliver Typewriter Co.

174 A.D. 511, 161 N.Y.S. 226, 1916 N.Y. App. Div. LEXIS 8212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1916
• Status: Published

Opinion

Page, J.:

The action was to recover damages for personal injuries sustained by reason of the falling of a sign maintained by the defendant on the outside of a building on Broadway.

The action was commenced within about three months from the date of the original injury. A condition of nervousness and headache developed by reason of the injuries to the plaintiff’s head which prevented his attending to his business, and as a consequence thereof he was forced into bankruptcy, losing his capital, which amounted to upwards of $35,000, and his earnings in said business, which had been for some years previous to the accident at the rate of $15,000 per year. The plaintiff desires to set up these facts as a foundation for consequential damages and to increase the amount of the judgment demanded. The defendant argues that as these injuries resulted from the accident, the facts would be properly set forth in an amended complaint; but the distinction between an amended and supplemental complaint is that in an amended complaint allegations of fact existing when the action was commenced may be incorporated. A supplemental complaint is necessary when it is sought to allege material facts which occurred after his former pleading was made. (See Horowitz v. Goodman, 112 App. Div. 13, 15, 16.) Although the facts desired to be alleged may only have reference to the measure of damages, if the facts which afterwards occurred entitle the plaintiff to other or more extensive relief he is entitled to a supplemental complaint. (See Latham v. Richards, 15 Hun, 129, 131.)

In order to permit evidence to be received on the trial as to these subsequent happenings and the damages resulting therefrom, it is necessary that the facts which would entitle plaintiff to such relief should be alleged. Therefore, the motion should have been granted.

Plaintiff went into bankruptcy in November, 1915. He did not make this motion until September, 1916. In the meantime the case has been reached on the calendar. Because of this delay the motion for leave to serve a supplemental complaint should be granted upon the plaintiff paying costs to date of the original motion.

The order should, therefore, be reversed, with ten dollars costs and disbursements to the appellant, and the motion granted and the plaintiff allowed to serve his supplemental complaint within ten days upon payment to the defendant of the taxable costs to date of the original motion.

Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted on terms stated in order.