Gibbons v. Hellwig

The plaintiff brought this action to recover the rent for certain premises upon which he claimed there was a balance of $5 due for the month of January, 1898, and $65 per month for each of the months of February, March and April, 1898. .

At the close of the plaintiff’s case, the defendant made a motion to dismiss the complaint, which motion was granted. In such a case the facts most favorable to the plaintiff must be regarded as established.

The plaintiff is designated in the summons herein “ as trustee,” and in the stenographer’s minutes “ as assignee.” In whatsoever capacity he may have brought this action, the proof entirely fails to show that he had any right or authority to do so, or any cause of action against the defendant. The only witnesses sworn on the trial, on the part of the plaintiff, were one Thomas M. Roach, and the defendant himself. From their testimony, it appears that one J. A. Demarest was the owner of the premises; that prior to January, 1897, one Hepner was the lessee under Demarest, and that Hellwig, the defendant, was a tenant leasing that portion of the premises occupied by him from Hepner. It further appears, that in January, 1897, Roach leased the property from Demarest for five years; that Hepner was dispossessed, and. that Roach thereupon took possession of the premises. There is no testimony in the case showing any connection between Roach and the plaintiff. Upon the trial, a certain paper shown to'have been signed, by Roach was offered in evidence, and excluded under objection made thereto by defendant’s counsel. What the contents of that paper were do not appear. There is nothing in the testimony tending, to show' that the paper contained any authority, or conferred any *788power upon the plaintiff to bring this action, and the record ia silent as to the reason why the paper was offered in evidence. For all that appears, the paper may have been excluded because it waa immaterial, and we, therefore, cannot say that it was error to exclude it. The paper or,a copy of it should have been annexed to' the return. The plaintiff is not shown to have any interest in the cause of action whatever, and the judgment of the trial court in dismissing the complaint was, therefore, correct, and should be affirmed.

MacLean and Leventritt, JJ., concur.

Judgment affirmed, with costs to respondent*