#### Mary Senft, App’lt, *v.*The Manhattan R. R. Co. *et al.,*Resp’ts.

*(New York Superior Court, General Term,*

*Filed January 6, 1890.)*

1. Parties—Substitution—Terms.

Where the original plaintiff in an action for an injunction against an elevated railroad company has sold the premises affected by said road and .assigned to the purchaser his claim for damages, the court has power to -substitute such purchaser as plaintiff, but the application for such substitution is addressed to the discretion of the court.

3. Same.

The court in the exercise of such discretion may impose as terms that the proceedings already taken be set aside and that the action be severed and the several causes of action be tried separately.

Appeal from portions of order substituting Mary Senft as plaintiff herein.

This action was brought to obtain an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of plaintiff’s premises, and for damages for the past maintenance and operation of the same. The original plaintiff was Christian Senft Subsequent to the beginning of this action Ohristian Senft sold and conveyed said premises to Mary Senft, who is his wife. Subsequently this action came on to be tried at an equity term of this court, the court and the counsel on both sides being ignorant of the fact that the plaintiff had parted with his title to the property. Evidence was then taken on both sides, but no decision was rendered. On June 5, 1889, just before the making of this motion, Christian .Senft assigned to Mary Senft his claim for past damages to said premises by reason of the construction, maintenance and operation of defendants’ railway. Mary Senft then, by her petition dated June 6, 1889, applied to be made party plaintiff in this action. This motion was granted, but the order granting it provided that the trial already had must be set aside and treated as a nullity, “ 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.” Mary Senft now appeals: 1. From so much of the order as sets aside the trial; and 2. From so much of the order as provides that no judgment or relief shall be granted her in this action unless she severs the cause of action for a present injunction from the cause of action for past damages and serves separate supplemental complaints setting forth the causes of action so severed.

*Lewis L. Delafield,*for app’lt; *B.*Tolies, for resp’ts.

*520Ingraham, J.

We think it is clear under § 756 of the Code that, nothwithstanding 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 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 ten dollars costs, and the order as thus modified should be affirmed, without costs of this appeal.

Sedgwick, Oh. J., concurs.