p. 418In the ease at bar, however, the provision in such terms and conditions that no judgment" or relief be granted to the petitioner seeking substitution unless she comply with the conditions of the order, was improper and beyond the discretion of the court, and should be modified, (see opinion) and, as thus modified, should be affirmed without costs of this appeal..
Before Sedgwick, Ch. J., and Ingraham, J.Appeal from an order of the court at special term setting aside the trial of this action and substituting Mary Senft as plaintiff therein in the place and stead of Christian Senft, and prescribing terms and conditions for such substitution.
James B. Ludlow, attorney, and Lewis L. Delafield of counsel, for appellant, argued :—
I. The court erred in setting aside the trial. At the time of the trial the situation was this : Christian Senft had conveyed the real estate to his wife, and had therefore parted with a portion of his cause of action, namely, the cause of action for an injunction ; but he still retained his cause of action for past damages. Under these circumstances he 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. Section 756 of the Code provides, that “ In case of a transfer of interest * * * the action may be continued by or against the original party, unless the court directs the person to whom the interest. is transferred * * * to be substituted in the action.” Under this section of the Code it has been repeatedly held that even where the plaintiff has assigned his whole cause of action pendente lite the action may, nevertheless, proceed in his name. Cuff v. Dorland, 7 Abb. N. C. 194 ; Arnold v. Keyes, 37 Super. 135 ; Ford v. David, 1 Bosw. 569 , 600 ; Wood v. Kroll, 43 Hun, 330 ; Spencer v. Berdell, 10 N. Y. State Rep. 62. If then the trial may proceed in the name of the original
p. 419plaintiff notwithstanding a transfer pendente lite of the whole cause of action, there would seem to be no substantial reason why the trial should not proceed in his name when he has assigned but a portion of his interest.II. It was error to direct that no judgment should be rendered in favor of Mary Senft, the substituted plaintiff, unless she should sever the action into two, and should serve supplemental complaints in each. It is of course conceded that under section 760 of the Code, the court may, upon substitution of a new plaintiff, impose such terms as to the “ amendment of the pleadings, or otherwise, as the case requires.” But this section only means that the court may direct the framing of a new issue in a case where the substitution of another plaintiff raises some new question which the defendant could not litigate under the original pleadings. The discretion of the court is not unlimited. It can only impose such terms upon the substituted plaintiff “ as the case requires.” In the case at bar upon hearing the motion to substitute Mary Senft as plaintiff, the court found as a matter of fact “ that the said Mary Senft is now vested with the whole cause of action set forth in the complaint in said action.” In view of these facts, the appellant insists that the setting aside of the trial and the conditions imposed as to the service of supplemental complaints are not such conditions “ as the case requires; ” that the rigorous terms of the order exceed the discretion reposed in the court by section 760 of the Code ; and that the making of such an order practically nullifies the provisions of section 756 of the Code.Davies & Rapallo, attorneys, and Edwara S. Rapalio and Brainard Tolies of counsel, for respondents, argued :—
I. No error was committed in setting aside the
p. 420trial. It had been a trial between Christian Senft and the defendants, and was so regarded by all parties. As a matter of fact there was no issue between Christian Senft, and the defendants, cognizable in a court of equity, he having parted, before the trial, with his interest in the subject matter to which the equitable jurisdiction attached. Under section 756 of the Code, Mary Senft upon acquiring title to this property, had two courses between which to elect: (1) To continue the action in the name of the original plaintiff. This she did not do. She did not have anything to do with the action, until the date of the petition. It does not appear that Mary Senft knew of the trial or of the pendency of the action, until that time. Certainly, the trial was not conducted by her or on her behalf, either nominally or in fact. The counsel for the plaintiff was ignorant of the transfer of title, until long after the trial. (2) To apply to be substituted in the action in place of the original plaintiff. This was the course selected. Upon substitution, the new party takes up the proceedings at the precise point where they stood at the time he acquired his title. He is nobound by the acts of the original party done after that time, unless they were done on his behalf. Moore v. Hamilton, 44 N. Y. 666 , 672; Requa v. Holmes, 16 Ib. 193.
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 unlimited. Unless that discretion is abused it will not be interfered with. The order now complained of amounted to a direction to strike out all the évidence which had been taken. In view of the irregularity which had characterized the trial, arising, as it did, from a mutual mistake of fact and involving the most serious con
p. 421sequences, it cannot be disputed that the discretion of the trial judge was wisely exercised.But his Honor Judge Fbeedman, in making this order, was invested not only with discretionary power as trial judge, but also with ail the discretion of the court at special term to grant a new trial for irregularity. Code of Civil Procedure, §§ 998, 1002.III. The appellant cannot complain of the terms imposed by the order, as a condition for permitting her to be substituted as plaintiff. It was discretionary with the learned judge at special term to grant the appellant’s motion to be substituted in place of Christian Senft, and he had a right to impose such terms as he deemed best adapted to the ends of justice.
Code of Civil Procedure, § 760 ;
Smith v. Zalinski, 94 N. Y. 519 ; Getty
v. Spaulding, 58
Ib. 636; Murray
v. Gen. Mut. Ins. Co.,
2 Duer, 607 ; Ford
v, David, 1 Bosw. 169 ; Banks
v. Maher, 2
Ib. 690; Harris
v. Bennett, 1
Code R. N. S. 203 ; McGowan
v. Leavenworth, 2
E. D. Smith, 24; McNamara
v. Harris, 4
Civ. Pro. Rep. 76.
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
p. 422the 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 that two distinct causes of action set 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 $10.00 costs, and the order, as thus modified, should be affirmed without costs of this appeal.
Sedgwick, Gh. J., concurred.