99 N.Y.S. 950 | N.Y. App. Div. | 1906
The plaintiff brings this action for malicious prosecutidn, in that. the defendant falsely, maliciously and without probable cause made a sworn complaint accusing the plaintiff of grand larceny in the theft of forty-five dollars from the'Metropolitan Switchboard Company, on which complaint the plaintiff was arrested and held; to bail, but discharged after an examination. The defendant answered denying all of the allegations of the complaint except the fact that the plaintiff was taken ♦ before a police magistrate and arraigned, and that he gave bail for his appearance. As a defense he alleges some matters in connection' with the Metropolitan -Switchboard Company, not necessary to this discussion, and in the 6th paragraph of the answer alleges: “ For a further, separate and distinct defense, this defendant' alleges that in -making [he complaint as aforesaid he was acting as an officer of the said' corporation, and not ,as an' individual in his' private capacity.” The plaintiff demurs to this paragraph as a defense, and the interlocutory ' judgment overrules this demurrer.
We are of opinion that the court erred in thus disposing of the demurrer. The fact alleged is not stated to be pleaded as a partial, defense-as provided by section 508 of the Code of Civil Procedure, if it could be urged that it was in any measure a defense. This -is an action in tort, and the fact'that some one other than the defendant took part in the act, or that he acted in behalf of some one else, whether a person or a corporation, is of no possible consequence. “ In such cases the plaintiff" may proceed against any one, all, or such number of the wrongdoers as he may choose.” (Roberts v.
The interlocutory judgment appealed from should be reversed, with costs.
Jenks, Hooker, Gaynor and Rich, JJ., concurred.
Interlocutory judgment reversed, with costs.
