¶1(dissenting):
¶2I cannot agree with the views of my associates. It is unnecessary to state other facts in this case than that the plaintiff’s right of action is based on an allegation that before the commencement of *149the action, in February, 1898, he recovered a judgment against Bertrand, the agent and one of the underwriters of the Electric City Lloyds of Buffalo, on a policy issued by that institution. By the terms of the policy such recovery was a condition precedent to his right of recovery against the defendant. • It appears that the judgment was taken by default’in January, 1898, and that it was subsequently vacated on the defendant’s motion, there being no provision in the order that it should stand as security or otherwise, as is sometimes the fact. Subsequently the Bertrand action was tried, and a judgment was entered for the plaintiff in January, 1899. The plaintiff moved for leave to serve a supplemental complaint setting up the recovery of that judgment, and his application being denied, he appeals.
¶3There can be.no question that the motion was properly denied. The object of a supplemental complaint is to set up facts in aid or complement of the original cause of action : not to set up a cause of action not in existence when the suit was commenced. There was no cause of action, and no action was maintainable by the plaintiff until the recovery of a final judgment against Bertrand, and there was no final judgment against him until January, 1899. (New England Water Works Co. v. Farmers’ L. & T. Co., 23 App. Div. 571.)
¶4For these reasons, I think the order was correct and that it should be affirmed.
¶5Order reversed, with ten dollars costs and disbursements, and motion for leave to serve supplemental complaint granted, without costs.