Starr v. United Artists Corp. , 10 A.D.2d 836 ( 1960 )

Order denying motion to dismiss complaint in libel for insufficiency unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. The complaint by alleging that defendant Columbia Pictures Corporation knowingly composed and published the alleged defamatory letter necessarily imports, either that defendant Ferguson acted as employee of such corporation and within the scope of his employment, or that his act was at the direction of his corporate employer. As a consequence, plaintiff will have to prove as much in order to sustain the complaint. And this, on argument of the appeal, was not disputed by plaintiff. To the extent that the ratio decidendi in Flanagan v. McDermott Dairy Co. (132 App. Div. 166) would suggest otherwise, it is not followed. Rotably, in that case it was observed that: “The form of the letter on its face is a letter of Johnson’s to a third party, having no relation to the corporation or its business or affairs” (p. 168). The same could not be said in this case. Concur — Breitel, J. P., M. M. Frank, Valente, Stevens and Bergan, JJ. [20 Misc 2d 636.]