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 *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,