157 N.Y.S. 410 | N.Y. App. Div. | 1916
This is an action to recover damages for slander. The words spoken of plaintiff were undoubtedly actionable per se. The learned justice at Trial Term dismissed the complaint on the ground that an action for slander could not be maintained against a corporation, upon the authority of Eichner v. Bowery Bank (24 App. Div. 63), a decision of this department. That action was brought to recover damages for the non-payment of a check and for slander in stating when the payment was refused that the check was no good. The court said (Williams, J., writing): “ So far as the action may be regarded as one to recover damages for slander of the plaintiff in his occupation of merchant or trader, it cannot be maintained against the defendant as a corporation. The theory of the plaintiff is that the defendant not only refused to pay the check, but that it also stated in effect that the plaintiff had no funds in the bank subject to the payment of the check. If this may be regarded as a slander at all, it was not one for which the corporation itself would be liable. The corporation itself could not talk. The statement must have been made by some officer or agent of the corporation, and if there was liability for slander at all, it must have been the personal liability of such officer or agent, and not of the corporation.” As authority for this statement of the law the court cites two text books. The quotation from Odgers on Libel and Slander is from an early edition. The statement is entirely omjtted from the later editions. The citation from Townshend on Slander and Libel (§ 265) is as follows: “A corporation can act only by or through its officers or agents, and as there can be no agency to slander, it follows that a corporation cannot
The plaintiff properly alleged that the words were spoken by the defendant. As a corporation can only speak through some person or persons in its employ, the legal inference is that some ■such person or persons spoke for it. It is a matter of proof on the trial to establish that the person who spoke the words was acting within the scope of his employment, or that the corporation by ratification of the act of speaking had adopted and made the words its own.
The judgment will be reversed and a new trial granted, with costs to appellant to abide event.
Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.