Maier v. Hubbard

Hascall, J. This action was brought to recover damages for an alleged slander charged to have been spoken by the defendant “ by and through her agent and attorney thereunto specially authorized.” Plaintiff had a judgment upon a verdict for $1,051.90, and defendant appeals from the judgment and from an order denying her motion for a new trial upon the minutes. The evidence clearly establishes that no slander was uttered, and that under no construction of terms can it be made to appear that the defendant committed the actionable fault charged to her by and through her agent and attorney specially authorized. It seems to us, first, that defendant’s motion for judgment on the pleadings should have been granted. Brooker v. Coffin, 5 Johns. 188; Milligan v. Thorn, 6 Wend. 412. And, second, that it was error to deny the motion for the direction of a verdict. The entire testimony in the case shows, in our estimation, that the position of the parties, the words themselves, and the circumstances bring the case at bar quite within the authority of Broderick v. James, 3 Daly, 481. So that, without examining further as to refusals to charge, etc., we conclude that the motion for a new‘trial on the minutes should have been granted, and, therefore, reverse the judgment and order a new trial hereon, with costs to the appellant to abide the event. Conlan and Scotchman, JJ., concur. Judgment reversed and new trial or4ered, with costs to appellant to abide event.