Rummell v. Blanchard , 160 N.Y.S. 235 ( 1916 )

McLaughlin, J.:

Action in replevin to recover 200 cases of shellac. At the commencement of the action the plaintiffs executed the usual undertaking and took the shellac—which they still have — into their possession. The present defendants were subsequently substituted as parties defendants and an amended complaint was served, which now stands as the complaint in the action. The cause of action alleged is predicated upon the fact that George A. Alden & Go. obtained possession of the-shellac by fraud from the plaintiffs who, for that reason, were entitled to rescind the contract of sale and recover the goods. The proposed so-called supplemental complaint alleges that in March, 1914 — about a year subsequent to the time the action was commenced, and George A. Alden & Co. in the meantime having gone into bankruptcy—a composition in bankruptcy was accepted by the creditors of record and the bankrupts were discharged; that after George A. Alden & Co. had been adjudicated bankrupt, and prior to the settlement with the creditors of record in the bankruptcy proceeding, an agreement was entered into between the plaintiffs and Alden & Co., which provided that plaintiffs should retain the ownership and possession of the shellac and waive all claims against Alden & Co. arising out of the latter’s failure to perform the contract alleged in the complaint; that the schedules in bankruptcy of Alden & Co. did not list the shellac as an asset, nor the plaintiffs as creditors, and by reason of the agreement last referred to the plaintiffs did not file their claim in the bankruptcy proceeding, nor share in the composition.

A supplemental complaint is limited to setting forth facts occurring subsequent to the commencement of the action and in aid of the original cause of action. It cannot be made the means of setting forth facts constituting an entirely new and independent cause of action. (Park & Sons Co. v. Hubbard, 134 App. Div. 468; affd., 198 N. Y. 136; Lafayette Trust Co. v. Peck, 133 App. Div. 370; Bell Telephone Co. v. Home Telephone Co., 62 id. 13.)

The supplemental complaint is not in aid of the cause of action set out in the complaint. The facts set forth in the supplemental complaint, if constituting a cause of action at all, are independent of and in no way connected with the cause, of action upon which a recovery of the shellac is claimed. Under the complaint the plaintiffs did not have a valid claim against the bankrupts. The theory of the complaint, as indicated, is that the title of the shellac, by reason of the fraud practiced upon the plaintiffs, was not in Alden & Co., and for that reason plaintiffs had a right to rescind the contract and recover possession of it. If the title were in Alden & Co. when they were adjudicated bankrupts it passed to the trustee in bankruptcy. If the title were in the plaintiffs, as claimed in the complaint, then the agreement set forth in the supplemental complaint is of no importance, because Alden & Co. could not give what they did not have.

The allegation that the plaintiffs did not prosecute their claim in the bankruptcy proceeding is of no importance because, under the allegations of the complaint, they did not have a claim which they could prosecute.

I think the order is right, and should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., and Page, J., concurred; Scott and Smith, JJ., dissented.