Murphy v. Eidlitz , 99 N.Y.S. 950 ( 1906 )

Woodward, J.:

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. Johnson, 58 N. Y. 613, 616 ; April v. Baird, 32 App. Div. 226, 227.) He may have a cause of action against the corporation for procuring this arrest, but he has also a cause of action against the defendant, acting as the agent of such corporation or in his individual capacity, and the fact alleged does not, therefore, constitute a defense, and the demurrer should have been sustained.

The interlocutory judgment appealed from should be reversed, with costs.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Interlocutory judgment reversed, with costs.