Mussinan v. Hatton.

after the pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires," etc. This second amended complaint was served within twenty days after service of the answer to the original complaint, and was, therefore, served within the statutory limit of time (Seneca Bank v. Garlinghouse, 4 How. Pr. 174). But, having already served one amended complaint, can plaintiff serve another, under the above section of Code? I think not. The Code particularly states that the complaint may be once amended. The Code gives plaintiff an absolute right to amend his complaint once, subject to the right of the court to strike out for cause shown (Cooper v. Jones, 4 Sand. 699; Frank v. Bush, 63 How. Pr. 282). The plaintiff has availed himself of this right, and his amended complaint has been stricken out by the court. He cannot go on serving amended complaints indefinitely. I can find no authority to support the contention that plaintiff can serve a second amended complaint, as a matter of right, under § 542 of the Code. Of course, under 544 of the Code, plaintiff is at liberty to apply to the court for permission to serve a supplemental complaint; but I am of opinion that he has already exhausted his rights under § 542 of the Code.

The ground, however, that the proposed amended complaint should not stand for the reason that it sets up a new cause of action, is not tenable, for, under § 542 of the Code, the plaintiff may amend by alleging an entirely new cause of action, because this section contains no restriction as to the nature of the amendments (Robertson. Robertson, 9 Daly, 44-52; Devine v. Duncan, 2 Abb. N. C. 328); but all the causes set forth in the amended complaint should be of the same class and of a class to which the summons is appropriate (Brown v. Leigh, 49 N. Y. 78).

I am of opinion that the motion to strike out this second amended complaint must be granted, with $10

Oelberman v. N. Y. & Northern R. R. Co.

costs, with leave to the plaintiff to make such application to the court as he may think proper with regard to any further pleading.

OELBERMAN v. N. Y. & NORTHERN R. R. CO.

N. Y. Supreme Court, Special Term, First District; April, 1894.

Pleading.] A motion for leave to serve both an amended and supplemental complaint cannot be granted.

Motion for leave to serve an amended and a supplemental summons and complaint.

Simon Sterne, for the motion.

Simpson, Thacher & Barnum and Frank Loomis, opposed.

INGRAHAM, J.-This is a motion made by the plaintiff to serve a paper annexed to the moving papers, which is called a proposed amended and supplemental complaint; also to amend the summons by making the New York & Putnam Railroad a party defendant. There is no such pleading known to the Code as an "amended and supplemental complaint."

The original complaint in this action having been demurred to and the demurrer sustained, the plaintiff, in accordance with the leave granted by the interlocutory judgment, served an amended complaint, and that complaint now stands as the complaint in this action. If the plaintiff desires to serve a supplemental complaint under the provisions of § 544 of the Code, such a supplemental complaint must be prepared as distinct from the amended. complaint as it now stands as the complaint in this action,

Neiberg v. Neiberg.

as supplemental thereto, but there is no provision authorizing the court to allow allegations, by way of an amendment to the complaint, of facts that happened after the commencement of the action. It will produce great confusion to approve of such a practice as allowing the service of a pleading in which is contained the facts relied on to give a cause of action, and also contains the allegation of the facts which have arisen since the commencement of the action, and which are supplementary to those alleged in the complaint as effecting the ultimate relief to be given.

I think, therefore, this motion should be denied, with $10 costs to abide the event, with leave, however, to the plaintiff to make a motion for leave to serve a supplemental complaint as a distinct pleading, which shall allege the facts that he considers material which occurred after his former pleading, or of which he was ignorant when it was made. Order to be settled on notice.

NEIBERG v. NEIBERG.

N. Y. Superior Court, Special Term; April, 1894.

Pleading.

Leave to serve a supplemental complaint in an action for divorce setting up additional acts of adultery since the commencement of the action and joining of issue, cannot be granted.

Motion for leave to serve a supplemental complaint.

Action by Nettie Neiberg against Louis Neiberg to obtain an absolute divorce.

C. I. Schampain, for the motion.

N. S. Levy, opposed.

VOL. XXXI.—17

Neiberg v. Neiberg.

GILDERSLEEVE, J.-The action is brought for an absolute divorce, on the ground of adultery. Issue has been joined, and the case noticed for trial by both parties. The plaintiff now moves for leave, under § 544 of the Code, to serve a supplemental complaint setting forth acts of adultery on the part of the defendant, committed subsequent to the commencement of the action and the joining of issue therein. It is the established doctrine of this court, which has been followed by the Court of Common Pleas, that a supplemental complaint, alleging additional acts of adultery by defendant since the commencement of the action, cannot be filed (see Day v. Day, N. Y. Law Journal, September 7, 1893, McAdam, J.; Halsted v. Halsted, 26 N. Y. Supp. 758, Giegerich, J.); and I cannot find that the Court of Appeals has disapproved of that doctrine. This doctrine is not inconsistent with that laid down by the Supreme Court in Blanc v. Blanc (67 Hun, 384), where it was held that a defendant, sued for a divorce, may, by supplemental answer, plead, by way of counterclaim, acts of adultery committed by the plaintiff after the suit has been brought, and may have affirmative relief therefor; because, as Judge McAdam points out in his opinion in Day v. Day (supra), a plaintiff may discontinue and sue over again, while a defendant cannot. This motion for leave to serve a supplemental complaint must be denied, but without

costs.

Bartlett v. Mudgett.

BARTLETT v. MUDGETT.

N. Y. Supreme Court, General Term, Fifth Department; April, 1894.

1. Justices' courts; jurisdiction.] In determining whether a matter of account in a justice's court exceeds $400, so as to deprive the justice of jurisdiction under Code Civ. Pro., § 2863, subd. 4, credits allowed by either party to the other in his pleading should not be included.

2. The same.] A justice of the peace has no power to dismiss an action involving a matter of account, because the claim set up in the answer makes the sum total of the amounts in dispute more than $400; it must appear to him from the evidence that the amounts involved exceed his jurisdiction.

3. The same; appeal.] Where a justice of the peace erroneously dismissed an action upon the pleadings, without taking any evidence, upon the ground that a matter of account was involved exceeding $400.-held, that as in such a case want of jurisdiction must be shown by evidence, plaintiff could appeal to the county court for a new trial, and was not confined to an appeal upon a question of law only.

The plaintiff, Daniel E. Bartlett, brought his action. against James W. Mudgett in the justice's court in Cattaraugus County, and claimed in his complaint as his first cause of action that the defendant was indebted to him for work and services in pressing into bales 280 tons of hay, at the agreed price of $1.75 a ton, and that there became due to him therefor $490; that the defendant had not paid any part thereof, except the sum of $300, and that there remained due on account thereof the sum of $190. For his second cause of action he alleged that the defendant was indebted to him in the sum of $39.02 for goods, wares and merchandise sold and delivered to the defendant, and that the defendant had paid thereon the sum of $40, thereby slightly overpaying the same. He