60 A.D. 433 | N.Y. App. Div. | 1901
This action is brought to recover- damages for alleged false imprisonment, and the demurrer is interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The issue of law was determined at Special Term adversely to the defendant and is brought to this court on appeal.
The rule is well settled that a demurrer, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, cannot be sustained unless it appears, admitting all of the facts alleged, that no cause of action whatever is stated. The demurrer cannot be sustained simply by showing that facts are imperfectly , or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only -argumentatively averred. The pleading may be deficient in ■ technical language or in logical statement, but, as against a demurrer, or a motion to dismiss the complaint before the taking of proof, the pleading will be deemed to allege whatever may be implied from its statements by fair and reasonable intendment. (Kain v. Larkin, 141 N. Y. 144, 150, and ahthorities there cited.) -
The complaint in this action, aside from the formal averments, states that on December 19, 1899, the plaintiff Went into the store of the defendant for the purpose of making purchases therein; that while she was in said store she purchased and paid for a certain umbrella the sum of one dollar, and that said umbrella was delivered to her; that on. the- same .day, while the plaintiff
We are clearly of opinion that, under the rule quoted above, the complaint does state facts sufficient to constitute a cause of action; that the allegation of false imprisonment, through the conduct of the defendant’s agent or servant, is good if the plaintiff, on the trial, is able to establish that the person or persons so detaining and imprisoning her were, in fact, the agents or servants of the defendant in the particular transaction, and upon this point the rule is laid down in the leading case of Rounds v. Del., Lack, & W. R. R. Co. (64 N. Y. 129,137) that “ if the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved.”
We find no inconsistency with this doctrine,, either in the case of Penny v. N. Y. C. & H. R. R. R. Co. (34 App. Div. 10), or in Fisher v. Brooklyn Jockey Club (50 id. 446),. but on the contrary, in so far as they have any analogy to the present ease, they . are in harmony with the result which we have reached and which demands an affirmance of the interlocutory judgment.
The interlocutory judgment appealed from should be affirmed, with costs.
All concurred.
Interlocutory judgment affirmed, with costs.