Russell v. Barron

111 A.D. 382, 97 N.Y.S. 1061, 1906 N.Y. App. Div. LEXIS 172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1906
• Status: Published

Opinion

Gaynor, J.:

The action is for damages for slander. The complain^ does not state a cause of action. The words alleged are that the plaintiff, in employing men for his employer, charged them a commission or fee on their wages. To do this is not a criminal offense, and, therefore, the words are not defamatory in that sense. It is said, however, that they impute to him dishonesty to his employer, and, therefore, touch him in his position of employment, which is a separate, head of slander. But the complaint does not allege such a meaning, and where the words are equivocal, i. e., capable of an honest or a dishonest, i. e., a slanderous or an innocent, meaning, dependent on extrinsic facts, the complaint must allege the latter meaning in order to state a cause of action (Taylor v. Wallace, 31 Misc. Rep. 393). Such an allegation makes the meaning a question of fact for the jury. It is common for employees- to take commissions or tips from those dealing with their employers through them, with vthe knowledge and consent of such employers. Or the reduction in the present case may have been for the employer. The complaint here presents no question of fact for the jury as to the meaning of the words, and therefore the innocent meaning must be taken as matter of law.

But as this point was not raised below, it is not available here to reverse the order granting a new trial, and it can be cured by an amendment. p

The order is affirmed.

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

Order of the County Court of Dutchess county affirmed, with costs.