Jones v. . Neisler

DeNNy, J.

Tbe record does not disclose tbe ground upon wbicb tbe court below held tbe plaintiff is not entitled to recover in tbis action. Nevertheless, we think tbe contention of tbe defendant that tbe complaint does not state a cause of action against him is correct.

Tbe plaintiff alleges be gave an oral lease of bis bunting rights on tbe premises in question, to a third party for a valuable consideration; and brings tbis action for damages against tbe defendant for refusing to permit tbe lessee to exercise such rights. Tbe date of tbe lease is not alleged nor is tbe date of its termination disclosed.

If during tbe period of time 'in question, tbe lessee held a valid assignment of tbe plaintiff’s bunting rights, and was wrongfully prevented from exercising those rights by tbe defendant, tbe lessee, and not tbe plaintiff, is tbe one who suffered damages. Every action must be prosecuted in tbe name of tbe real party in interest. G. S., 1-57. Tbe lessee is not a party to tbis action. On tbe other band, if tbe lease is void tbe defendant cannot be made to respond in damages for refusing to recognize it.

A determination of the validity or invalidity of tbe lease or assignment of tbe bunting rights, not being essential to a disposition of tbis appeal, we express no opinion thereon.

Tbe judgment of tbe court-below will be upheld.

Affirmed.