The testimony, prima facie and unexplained, showed that the plaintiff was not the owner of the demand upon which suit was brought, and, therefore, unexplained and *Page 255 without any other testimony offered, upon it standing alone, the plaintiff was properly nonsuited, he having no cause of action. But it entirely failed to establish the other proposition of the defendant, to wit, that the present action was, in fact, brought and prosecuted for the benefit of John L. Requa; and upon this ground solely was he excluded as a witness.
It is to be observed, that the referee has found no such fact from the testimony offered to him. The plaintiff again offered said John L. Requa as a witness, for the purpose of proving that, at the time of the commencement of this suit, the plaintiff was the sole owner of the claim in suit, and that, at the time, the witness had no interest whatever in the claim, and that the witness did not, at the time, and never had, owned the claim, and that it never had been assigned to him. This was, in substance, an offer to show that the witness was not the person for whose immediate benefit the suit was prosecuted. By section 399 of the Code, as it then stood, he could only be excluded on the ground that he was the person for whose immediate benefit the suit was prosecuted. The testimony of the witness Hart in no degree tends to establish it. The existence of such fact must be the ground of exclusion; and it is unsound to assume it as the reason for the incompetency of the witness. It is begging the question to assume what has not been proved, and hold, thereupon, the witness to be incompetent. The foundation for his exclusion must first be laid.
We fail to see that, in this case, any legal ground for the exclusion of the witness was established. It is true that the declarations of the plaintiff showed that he was not the owner of the claim at a period some months anterior to the commencement of the suit, and that the witness Requa was, at that time, such owner. Such testimony, unexplained, showed, prima facie, that the plaintiff had no cause of action, and his declarations were competent to that point. But they in no way tended to establish the fact that the witness Requa was the person for whose immediate benefit the suit was prosecuted. If that assumption be correct, then, clearly, the declarations of Gilbert Requa, the assignor of the claim, made after the assignment, *Page 256 could not be used to defeat a recovery by John L. Requa, the assignee, if this suit was, in fact, prosecuted for his benefit. (Foster v. Beals, 21 N.Y., 247, and cases there cited.) On that assumption, this was a suit prosecuted by him and for his immediate benefit, for the recovery of a claim duly assigned and owned by him. In either aspect, therefore, in which the ruling of the referee is to be regarded, it must be held to be erroneous, and a new trial must be ordered, with costs to abide the event.