McMahon, jr., v. Allen.

V. The claim against the defendant, as executor, is a claim "against a trustee," and cannot be united with a claim against him individually. Code, § 167; Dix v. Backerstone, 12 Wend. 543.

1. The causes of action are wholly distinct, and the proposed complaint multifarious. Davoul v. Fanning, 4 John. Cy. R. 199; Bulls v. Greening, 5 Paige, 254; Murray v. Hay, 1 Barb. Cy. R. 59; Jackson v. Forrest, 2 ibid. 576; Story's Eq. Pleadings, 274 (a.)

VI. If the supplemental complaint were allowed, it could only be on payment of costs of motion and appeal, and all costs subsequent to issue. Downer v. Thompson, 6 Hill, 377; Holmes v. Lansing, 1 John. Chy. Cases, 248; Teraking v. Engel, 1 How. Pr. R. 5; Travis v. Hadden, ibid. 57; Warren v. Campbell, ibid. 61; Coffing v. Tripp, ibid. 115; Lignes v. Noble, ibid. 226; Tomlinson v. Wiley, ibid. 247; Bank of Chilicothe v. Dodge, 2 Pr. R. 43; Carvier v. Dellay, 3 Pr. R. 173; Brown v. Babcock, 3 Pr. R. 305; People v. Holmes, 5 Wend. R. 191.

BRADY, J.-It would be sufficient, perhaps, to state that the motion, on which the order appealed from was made, was for leave to file a supplemental complaint containing one material allegation at least which was known to the plaintiff when this action was commenced, namely, that he had been made the assignee of the trustee, Solomon Kipp, in the manner and by the authority for that purpose, and to the end set forth in such allegation, which was an objection to the leave sought by the motion. The section of the Code (177) allowing parties litigant, on motion, to make supplemental pleadings, applies only where the facts occur after the former pleading, or where the party was ignorant of them when such former pleading was made. Houghton v. Skinner, 5 How. Pr. R. 420.

There is, however, another objection to such complaint, and that is, that it prays relief against the defendant in his individual capacity and as executor of John Harrison, deceased; not in express terms, it is true, but in language sufficiently broad for that

McMahon v. Allen.

purpose, praying as it does "that this court may settle the whole controversy now subsisting between the plaintiff and the defendant," and that, too, after an allegation, which is new, that the defendant, since the commencement of this action, became such executor. There is no doubt that this action cannot be maintained against the defendant individually and as an executor. "His rights," as said by Judge Woodruff, "in these separate characters are distinct, and his relations to this plaintiff, as well as to those who are interested in the estate of his testator, are distinct." Besides this, the judgment would be different in many respects, and the rule as to costs dependent not on the plaintiff's success alone, which would follow if the defendant were sued as an individual, but on the conduct of the defendant, or on refer ence to the special circumstances contemplated by the statute relative to that subject.

Again, it seems to have been the well settled rule in equity, that leave to file a supplemental complaint was never granted where the object could be accomplished by amendment. 1 Vol. Hoff. Ch. Pr. 393; 1 Smith's Ch. Pr. 526; Mitford's Pl. 60. And, in courts of common law jurisdiction, the defect of a pleading was always cured by amendment, when the amendment was proper and allowable.

The allegation of the plaintiff's character, derived from the assignment by Kipp, is a fact which was known, as stated, when this action was commenced, and would have formed the subject of amendment under either of the old systems, but could not have been averred by way of supplemental bill in equity.

It is not necessary to consider the various questions involved in the points submitted on the appeal, the objections already stated to the relief asked by the motion being sufficient to ustain the order of Judge Woodruff, and that order must be af firmed, with $10 costs.

Order affirmed.

Poock v. Miller.

LUDWIG POOCK v. LOUIS MILLER.

In an action against a husband for clothing furnished to his infant children, the opinion of a witness that they were necessary for them is not sufficient evidence of that fact. The circumstances which rendered the furnishing of the goods necessary should be shown.

To sustain such an action, it must appear that the articles supplied were furnished with the assent, or by the authority of the father, or to keep the children from absolute want, or that there was absolute necessity for them.

APPEAL by plaintiff from a judgment of the Fourth District Court. This action was brought by the plaintiff as assignec of one Frederick Wellmann, to recover for clothing furnished to the infant children of the defendant. The plaintiff proved that the goods were delivered to the minor children of the defendant; that the prices charged were reasonable and fair prices, and the assignment of the claim to the plaintiff; and one of the witnesses (the assignor of the claim) testified that "the clothing was necessary for the sons of the defendant." On this evidence he rested. The justice dismissed the complaint, and the plaintiff appealed.

James McGay, for the appellant.

Niles and Bagley, for the respondent, cited, in support of the position that the evidence was not sufficient to warrant a recovery, the following cases: Varney v. Young, 11 Verm. 258; Hunt v. Thompson, 3 Scaman, 179; Angel v. McLellan, 16 Mass. 28; Mortimer v. Wright, 6 Mees. & W. 482; Van Valkenburgh v. Watson, 13 John. R. 480; Baker v. Keen, 2 Stark. R. 501.

BRADY, J.-The justice did not err in granting the nonsuit. The evidence was not sufficient to charge the defendant for the the clothes furnished his children. Proof by the witness, Wellmann, that they were necessaries does not establish that fact legally, in reference to the liability of the parent. Clothing is

Courtois v. Harrison.

necessary, but whether any particular clothing is necessary or not depends wholly upon circumstances, which should be shown. If the defendant provided sufficient clothing for his infant children, then that furnished by the plaintiff was not necessary in legal contemplation, and no recovery could be had for it on the mere statement of a witness to the contrarv.

It is not sufficient to charge the parent to show that the children supplied were minors, and that the articles furnished were necessary articles. Some assent or authority, by or from him, must be shown (Story on Con. § 70, and numerous cases there cited; 1 Vol. Parsons on Contracts, 253), unless there is proof that the articles sold were delivered to the infants to keep them from absolute want, or that there was absolute necessity for their use. No evidence of either of these elements appears in the return.

A parent is under a natural obligation to furnish necessaries for his infant children, and, if he neglects to do so, a person who supplies them confers a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of such parent. But what is actually necessary will depend on the precise situation of the infant, and which the party giving the credit must be acquainted with at his peril―(Van Valkenburgh v. Watson, 13 John. 480)—and must prove to maintain his action. Judgment affirmed.

HECTOR COURTOIS v. L. F. HARRISON, Treasurer of the Young Men's Democratic Union Club.

In supplementary proceedings, the judge at chambers, before whom the order is returned, may vacate it on motion of the summoned party, if the affidavit on which it is founded is insufficient, or if for any reason it appears to have been improvidently granted.

Courtois v. Harrison.

It is too late, after judgment against a defendant as treasurer of a joint stock association, and in supplementary proceedings to enforce the payment of the judgment, to raise the objection that they are not such an association within the meaning of the statute.

Nor can this court, in such proceedings, founded upon a judgment of the Marine Court, go behind the record, and take into consideration affidavits, or the judge's certificate, that he ordered judgment against the defendant individually, and that it was entered against him as an officer of such association by mistake. If such an error has been committed, application for relief must be made to the court in which the judgment was rendered.

Proceedings supplementary to execution, under § 294 of the Code, may be taken, to compel the treasurer of a joint stock association to submit to an examination, upon the allegation that he is indebted to it, though the judgment is entered against him as treasurer of such association, and the action was commenced by the service of summons upon him under the act of 1849.

APPEAL from an order dismissing an order for the examination of a debtor of a judgment-debtor in supplementary proceedings. The plaintiff recovered a judgment in the Marine Court, which was entered there, and subsequently docketed against L. F. Harrison, Treasurer of the Young Men's Democratic Union Club. Execution was issued upon the judgment. While it was still in the hands of the sheriff, the plaintiff, on the usual affidavit, that L. F. Harrison had property of the defendant's in his possession exceeding $10 in value, obtained an order for his examination. Upon the return of this order Harrison moved to dismiss it, and to sustain the motion offered in evidence an affidavit and the certificate of the judge who tried the cause, for the purpose of showing that on the trial it was objected that the Young Men's Democratic Union Club did not constitute a joint stock associa tion, within the meaning of the act of 1849, and that no action could be maintained against L. F. Harrison as treasurer thereof. That the objection was sustained, but that the judge ordered judgment against L. F. Harrison personally. These papers the judge before whom the motion was made refused to consider. But he dismissed the order upon the ground that the provisions, as to supplementary proceedings, did not apply to the case of a judgment against a joint stock association. From this order the plaintiff appealed.