Oscar H. Sugarman, Appellant, v. Dennett's Surpassing Coffee Company, Respondent, Impleaded with Warren T. Smith, Defendant

Oscar H. Sugarman, Appellant, v. Dennett’s Surpassing Coffee Company, Respondent, Impleaded with Warren T. Smith, Defendant. First Department, December 29, 1911. Pleading — admission — allegation not denied — action for false arrest against corporation and manager — erroneous dismissal of complaint. The complaint in an action against a corporation and an individual for false arrest should not be dismissed as to the former upon the ground that the individual was not shown to be the manager of' the corporation, where it was alleged in the complaint that the individual was “ manager and superintendent, ” and the answer only denied that he was “superintendent,” and where there was also ample evidence that the individual was its manager, and acting within the supposed scope of his authority. Appeal by the plaintiff, Oscar H. Sugarman, from part of a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Hew York on the 20th day of March, 1911, Upon the dismissal of the complaint by direction of the court as to the defendant Dennett’s Surpassing Coffee Company at the close of the plaintiff’s case on a trial at the Hew York Trial Term. The appeal is from the judgment as amended by an order entered in said clerk’s office nunc pro tunc as of the date of the entry of said judgment. Nicholas W. Hacker, for the appellant. Thomas Fahey, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: 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 cáse, apparently upon the ground that Smith had not been shown to 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 he the scope of his authority when he procured the arrest to he 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. Ingraham, P. J., Laughlin, Miller and Dowling, J.J., concurred. Judgment reversed and new trial granted, costs to appellant to abide event.