p. 65Christian Senft, who then owned certain property known as No. 2267 Second avenue, against the defendants, to enjoin the latter from maintaining an elevated railway in Second avenue in front of plaintiff’s property, and to recover damages for past injuries. After the case was at issue, and on April 8, 1889, Christian Senft conveyed the property mentioned to his wife, Mary Senft. He did not, however, notify his attorney of the conveyance. The case was tried in May, at equity term. On June 3, the day on which the case was to be finally submitted, the plaintiff’s attorney learned for the first time of the existence of the deed from Senft to his wife. The matter was brought to the attention of the court, and an extension of time in which to submit the case was obtained. On June 5,_Senft made an assignment of all his cause of action, and especially of his cause of action for past damage, to his wife. Having thus become vested with the whole cause of action, Mary Senft moved at Special Term to be substituted as plaintiff in the action. The motion was granted, but the order granting it provided that the trial already had must be set aside and treated as a nullity, 6<and that no judgment or relief shall be granted to the said Mary Senft in this, action unless she shall comply with the conditions of this order, both by severing the cause of action alleged., in the original complaint herein into two-causes of action, and by serving supplemental complaints setting forth the causes of action so severed.” The plaintiff, Mary Senft, now.appeals from so much of the order as sets aside the trial, and as provides for the severing of the two causes of action and for the serving of separate supplemental complaints setting forth the causes of action so severed.
Lewis L. Delafield (James B. Ludlow, attorney), for the appellant.
I. The court erred in setting aside the trial. The plaintiff, Christian Senft, was entitled to proceed with the trial in his own name, but for the benefit of Mary Senft to the extent of the interest vested in her. At the time of the trial, Christian still retained his cause of action for past
p. 67the defendants are not entitled to contest it again (Smith v. Zalinski, 94 N. Y. 519 ; Moore v. Hamilton, 44 Id. 672; Gibson v. Nat’l Park Bank, 98 Id. 96 ; Greenwood v. Marvin, 111 Id. 440 ; Conger v. Duryee, 23 Weekly Dig. 193). The relative position of the parties was not changed by the substitution. The setting aside of the trial and the conditions imposed are not such conditions “ as the case requires ” under section 756.HI. As bearing upon the question of the assignability ■of the cause of action to enjoin a continuing trespass, see Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423 .Edward 8. Rapadlo and Brainard Tolies (Davies & Ra/pcdlo) for the respondent.
I. No error was committed in setting aside the trial. The trial had been between Christian Senft and the defendants and was so regarded by all parties. As a matter of fact, there was no issue between said Christian and the defendants cognizable by a court of equity, he having parted before the trial with his interest in the subject-matter. Under section 756 of the Code, Mary Senft, upon acquiring title, had two courses between which to elect. (1.) To continue the action in the name of the original plaintiff. (2.) To apply to be substituted. This latter course was selected. Upon substitution the new party takes up the proceedings at the precise point where they stood when he acquired his title. He is not bound by the acts of the original party done after that time, unless done on his behalf (Moore v. Hamilton, 44 N. Y. 666 , 672; Requa v. Holmes, 16 Id. 193). It is essential to legal proceedings that they should be mutually binding. A defendant also has a right to know who is the real party in interest. A trial had in ignorance of this fact cannot be deemed a fair trial.II. It was at least discretionary with the learned judge below to set aside the trial and that discretion was wisely exercised. The control which the presiding judge has over the conduct of the trial of an equity cause is practically
p. 68unlimited. In view of the irregularity which had characterized the trial, the discretion of the judge was wisely exercised.III. The appellant cannot complain of the terms imposed by the order as a condition for permitting her to be substituted as plaintiff. The court had a right to impose such terms as he deemed best adapted to the ends of justice (Code Civ. Pro. § 760 ; Smith v. Zalinski, 94 N. Y. 519 ; Getty v. Spaulding, 58 Id. 636 ; Murray v. Gen. Mut. Ins. Co., 2 Duer, 607 ; Ford v. David, 1 Bosw. 169 ; Banks v. Maher, 2 Id. 690 ; Harris v. Bennett, 1 Code R. S. 203; McGowan v. Leavenworth, 2 E. D. Smith, 24; McNamara v. Harris, 4 Civ. Pro. Rep. 76). The past damages accrued during Christian Seuft’s ownership of the property were plainly not incidental to any equitable relief, and were therefore not recoverable in the equity action.
We think it is clear under section 756 of the Code that, notwithstanding the transfer of the property to Mary Senft, the action could have been continued by the original plaintiff and the court have granted such relief as-the evidence justified.
But, on the conveyance by such plaintiff to the petitioner below of the fee of the property, and his assignment of the damages sustained in consequence of the trespass, the court had power to substitute the person to whom the interest was transferred as plaintiff in the action; but whether or not such substitution should be granted was in the discretion of the court (Getty v. Spaulding, 58 N. Y. 636 ). And it could grant an application for such substitution on such-terms and conditions as were necessary to protect the rights of the parties to the action.
If the court, in the exercise of such discretion, decided that, as a condition for the granting of such application, certain proceedings already had should be set aside, and the-action should be severed so tliat two distinct causes of action
p. 69set up in the original complaint should be tried separately, we do not think that the circumstances would justify the court in reversing the action of the special term imposing such conditions.
We do not wish to be understood as questioning the power of the court to have substituted the person to whom the interest of the original plaintiff had been transferred as plaintiff in the action, and then to have proceeded and rendered judgment in the action; but whether or not the court should adopt such a course was within its discretion.
The special term had the right to send the question as to the amount of the damages sustained by plaintiff by reason of the trespass to be tried by a jury, and it had clearly the right as a condition, on granting the application for a substitution, to require that a trial which had not been completed by the final submission of the case to the trial judge should be set aside.
We think however that the provision that no judgment or relief be granted to Mary Senft, the petitioner, unless she comply with the conditions of the order, was improper; that provision should be modified by the insertion of a clause in place thereof providing that in case the said Mary Senft should fail to comply with the conditions of the order within the time fixed that the application to be substituted as party plaintiff should be denied with $10 costs, and the order as thus modified should be affirmed without costs of this appeal.
I concur, Sedgwick, Oh. J,