Sugerman v. Dennett Surpassing Coffee Co. — 132 N.Y.S. 1084

Majority

p. 1084

SUGERMAN v. DENNETT SURPASSING COFFEE CO.

(Supreme Court, Appellate Division, First Department.

December 29, 1911.)'

Headnote

False Imprisonment (§ 15^[1] ) — Acts of Servant — Scope of Authority.

Where, in an action against a corporation for false arrest, defendant did not deny that its servant who caused plaintiff’s arrest was its manager, and there was evidence justifying an inference that he was in fact manager of the restaurant, and acted within what he supposed was the scope of his authority, it was error to dismiss the complaint as to the corporation, on the theory that the relation between it and the person-causing the arrest had not been sufficiently proved.

[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§■ 5-67; Dec. Dig. § 15.^[1] ]

Appeal from Trial Term, New York County.

Action by Oscar H. Sugerman against Dennett Surpassing Coffee Company. From so much of a judgment as dismissed the complaint against defendant Coffee Company, plaintiff appeals. Reversed, and new trial granted.

Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

Nicholas W. Hacker, for appellant.

Thomas Fahey, for respondent.

The action is for false arrest, and was brought against the corporation defendant, and one Smith, who is alleged to have been its manager. Judgment has gone against Smith, but the complaint was dismissed as against the corporation at the close of the plaintiff’s case, apparently upon the ground that Smith had not been shown to

p. 1085

have been the manager of the restaurant owned by defendant. From the judgment entered upon this dismissal, plaintiff appeals.

We think that the appeal must prevail. In the first place, the answer admits (by not denying) that Smith was the manager. The complaint alleges that Smith was respondent’s “manager and superintendent.” The answer denies that he was “superintendent,” leaving undenied the allegation that he was “manager.” It is said that the attention of the court was not called to this admission in the pleading, and that the appellate court should not, therefore, reverse the judgment on that ground. If this were the only reason urged for a reversal, the objection might carry weight; but the evidence adduced by plaintiff furnished ample ground for a finding by the jury that Smith was in fact the manager of the restaurant in which plaintiff was arrested, .and that Smith acted within what he supposed to be the scope of his authority when he procured the arrest to be made. Upon the evidence as it stood when the complaint was dismissed, a verdict by the jury that Smith was respondent’s manager, and that respondent was liable for his tort, would have been entirely justified. The dismissal ■of the complaint was therefore erroneous.

The judgment appealed from is therefore reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.