Lynott v. Pearson

138 A.D. 306, 122 N.Y.S. 986, 1910 N.Y. App. Div. LEXIS 1521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1910
• Status: Published

Opinions

Ingraham, P. J.:

.. We.ah agree that-the crucial question in this case is'whether the complaint sufficiently alleges that the defendant spoke the words complained of concerning the plaintiff in her business or calling as a domestic.

Considering the rule now vrell settled that on demurrer the complaint must be deemed to allege all that can by fair intendment be gathered from the language used, it seems to me that the complaint does charge that the defendant-spoke these words to the employer of the plaintiff in her business or calling as a domestic. When á person goes to the employer of a woman who is in domestic service and says to that employer that the employee “is.both drunk and crazy, out late at night, and a very untidy person,’.’ the charge relates directly to the calling of the person so spoken of, and necessarily refers to her in the employment in which she was at that time engaged.

I think, therefore,, that the complaint. sufficiently alleges that the words were spoken of the plaintiff in her employment or calling, and the judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer within-twenty days, upon payment of costs in this court and in the court below.

MoLaughlin and Dowling, JJ., concurred; Laughlin and Millee, JJ., dissented.