Thomas J. Murphy, Appellant, v. Charles L. Eidlitz, Respondent. (Action No. 2.)

Thomas J. Murphy, Appellant, v. Charles L. Eidlitz, Respondent. (Action No. 2.) Second Department, June 15, 1906. Malicious prosecution — pleading — defense that defendant was acting as officer of corporation—joint tqrt feasors — partial defense must he pleaded as such. In an action for malicious prosecution in causing the plaintiff's arrest it is no defease for the defendant tó allege that in making the complaint on which the plaintiff was arrested, he was acting as an officer of a corporation and not as an individual. In an action for tort the plaintiff may proceed against any or all joint tort feasors. A partial defense must be pleaded as such, as provided by section 508 of -the Code of Civil Procedure, and' on demurrer thereto the question is whether it is sufficient for that purpose. Appeal by the plaintiff, Thomas J. Murphy, from an inteilocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of February, 1906, lipón the decision of the court, retidefed.after a trial at the Kings County Special Term,' overruling the plaintiff’s demurrer to the second separate defense set forth in the amended-answer. ' ' William S. Maddox, for the appellant. Charles Cohn, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff brings this action for malicious prosecutidn, in that. the defendant falsely, maliciously and without probable cause made a sworn complaint accusing the plaintiff of grand larceny in the theft of forty-five dollars from the'Metropolitan Switchboard Company, on which complaint the plaintiff was arrested and held; to bail, but discharged after an examination. The defendant answered denying all of the allegations of the complaint except the fact that the plaintiff was taken ♦ before a police magistrate and arraigned, and that he gave bail for his appearance. As a defense he alleges some matters in connection' with the Metropolitan -Switchboard Company, not necessary to this discussion, and in the 6th paragraph of the answer alleges: “ For a further, separate and distinct defense, this defendant' alleges that in -making [he complaint as aforesaid he was acting as an officer of the said' corporation, and not ,as an' individual in his' private capacity.” The plaintiff demurs to this paragraph as a defense, and the interlocutory ' judgment overrules this demurrer. We are of opinion that the court erred in thus disposing of the demurrer. The fact alleged is not stated to be pleaded as a partial, defense-as provided by section 508 of the Code of Civil Procedure, if it could be urged that it was in any measure a defense. This -is an action in tort, and the fact'that some one other than the defendant took part in the act, or that he acted in behalf of some one else, whether a person or a corporation, is of no possible consequence. “ In such cases the plaintiff" may proceed against any one, all, or such number of the wrongdoers as he may choose.” (Roberts v. Johnson, 58 N. Y. 613, 616 ; April v. Baird, 32 App. Div. 226, 227.) He may have a cause of action against the corporation for procuring this arrest, but he has also a cause of action against the defendant, acting as the agent of such corporation or in his individual capacity, and the fact alleged does not, therefore, constitute a defense, and the demurrer should have been sustained. The interlocutory judgment appealed from should be reversed, with costs. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Interlocutory judgment reversed, with costs.