Opinion
December Term, 1897.
W.W. Badger, for the appellants.
William H. Godden, for the respondent.
The plaintiffs served a supplemental complaint which the defendant's attorney duly returned with a notice that allegations were inserted in such pleading which were not within the terms of the order granting leave to serve the supplemental complaint. Thereupon the plaintiffs moved to compel its acceptance, which motion was denied, and from the order entered thereon this appeal is taken. The original motion to serve a supplemental complaint was made on the petition of the plaintiffs, asking for an order continuing the action and substituting the plaintiffs in place of their testator, and for leave to serve a supplemental complaint setting forth the facts relating to the devolution of title. No opposition was made to such application, but the judge, at the request of the defendant's counsel, directed that the order be settled on notice. The defendant submitted a proposed order, which the plaintiffs refused to approve as to form, taking the position that, although they only asked for leave to continue the action and to interpose a supplemental complaint setting forth the devolution of title, yet they could as the result of granting such application, change the original complaint by setting up facts not included in the original complaint with respect to a third track on the defendant's railway and the operation of express trains thereon since the commencement of the action. The proposed order of the defendant and one proposed by the plaintiffs were submitted to the learned justice who heard the application, and he settled the order by signing the one proposed by the defendant, which, after reciting the petition and making other provisions, concludes as follows: "And that they have leave as such to serve a supplemental complaint herein within thirty days from the entry of this order, setting forth the facts alleged by them as to the devolution of the title to the premises and causes of action described in the complaint herein."
The only subject open to discussion is as to the construction to be given to the language used in the order. Did this permit a change in the original pleading by setting up facts with respect to the third track and the operation of express trains thereon, though not included in the allegations of the original complaint?
The doubt, if any exists, must be resolved in the defendant's favor, because that question was directly presented to the judge making the order. He having limited the scope of the supplemental complaint, the plaintiffs' right, if aggrieved thereby, was to appeal; but they could not, in direct opposition to the order, embrace within the supplemental complaint facts for which leave had not been obtained. The attempt to secure greater relief than was permitted was properly met by the defendant's returning the pleading. The Code (§ 544) permits the service of a supplemental complaint, but leave therefor must be obtained from the court. The remedy in that respect is to move for just the relief which the party wishes, and the practice requires that the proposed supplemental complaint should be part of the motion papers. After an opportunity to be heard upon the motion, the court makes its order, and then to either party is accorded, as already said, the right to appeal if aggrieved by the order. But certainly it is not correct practice to include in a supplemental complaint facts or allegations for which the court's permission has not been obtained.
We think the order was right and should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.