
    SUPREME COURT.
    Augustus B. De Bost, respondent, agt. Albert Palmer Company, appellant.
    
      Code of Oivil Procedure, section 756 — Proceedings upon transfer of interest— Power of court upon, motion to compel transferee of plaintiff’s claim pending suit to be made party plaintiff’.
    
    The court has power, upon application of defendant to compel the sole transferee of plaintiff’s claim pending suit to be made party plaintiff, changing the rule as declared in Packard agt. Wood (17 Abb., 818) ; Emmett agt. Bowers (23 How., 300): Howard agt. Taylor (6 JDuer, 204); affirming the theory of Shearman agt. Ooman (22 How., 517).
    
      First Department, General Term, May, 1885.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from order denying motion to bring in party plaintiff.
    Pending suit the plaintiff transferred his entire cause of action to Henry Day. The defendant made a motion, under section 756 of the Code of Civil Procedure, for an order directing Henry Day to be substituted as party plaintiff. The court duly denied the motion on the ground of want of power, following Packard agt. Wood.
    
    
      James B. Dill, for the appellant,
    argued that the order was not discretionary with the court; that section 449 of the Code of Civil Procedure provides that “ every action must be prosecuted in the name of the real party in interest,” and where a party transferred his entire interest he ceased to be the real party in interest; that section 756 of the Code permitted the original party to carry on the suit unless the court ordered the transferee to be substituted; that Shearman agt. Coman (22 How. Pr., 517), although overruled in Packard agt. Wood, was the proper theory of the law; that the force of the decision in Packard agt. Wood had been removed by an amendment to the Code (Sec. 756, formerly sec. 121).
    
      Alexander c& Green, opposed, for the plaintiff, argued:
    I. That the court had no power to compel the transferee of a cause of action pendente lite to be made party plaintiff; that the order could only be made upon the application of the transferee (Citing Packard agt. Wood, 17 Abb. Pr., 322; Slawson agt. Watkins, 95 N. Y., 369; Emmet agt. Bowers, 23 How. Pr., 300; see note, Bliss’ Code, p. 638).
    II. Section 756 has not changed the effect of the decision in Packard agt. Wood.
    
    III. The defendant’s proper remedy is given by section 3217 of the Code.
   By the Court (Daniels, J)

— In this case section 756 seems to confer a very broad discretion on the court, without any qualification whatever, to bring in a party who may have an interest in the suit. It has not been made conditional that the motion should be made on behalf of the plaintiff, but a general power is given to the court to bring in a party in the exercise of its discretion. That discretion has not been made in this case.

The order must be reversed in order that the court may exercise the power that the Code has conferred upon it.

Note.—Upon a rehearing of the motion before Lawrence, J., at special term, the motion was granted on the ground that while section 756 of the Code of Civil Procedure gave the court discretionary power, when a a case was made out under section 449 by proof of an absolute transfer, then as a matter of right the defendant was entitled to the order.— [Ed.  