There is no doubt that the publication complained of was libelous per se. Plaintiff has recovered judgment against certain newspapers which published it and for false arrest against the officer who took him into custody.
*196The question here is whether this defendant is liable. The charge in the complaint is that the defendant, in conjunction with the New York. City News Association, a voluntary association, carrying on business at No. 203 Broadway, borough of Manhattan, in the city of New York, as plaintiff is informed and believes, was .prior to, and at the time hereinafter mentioned, and is now, as plaintiff is informed and believes, engaged in the business of collecting and selling news matter to various newspapers and publications published in the city of New York and elsewhere throughout the United States; and that said so-called New York City News Association, as plaintiff is informed and believes, who has made diligent inquiry concerning the same, has no secretary or treasurer upon whom process may be served in accordance with the statute in such case made and provided; that on or about the 18th day of August, 1905, the defendant, using the name of and acting jointly with the said New York City News Association, composed concerning the plaintiff and his said.business, and caused to be published, circulated and distributed to various newspapers in the city of New York and elsewhere in the United States, and to the employees, agents and officers of the respective persons, corporations and associátions engaged in editing and publishing such newspapers, the false and defamatory matter.
The defendant was the general manager of the New York City News Association. He was not a member of the association. He was its secretary, but as such was not a member of even the executive committee. He received no salary as secretary, but was employed by the association as manager and paid as such. He was, therefore, merely a paid employee. The association, by its constitution, had for its object “the gathering and distribution to its members of any and all kinds of news. The association is not to make a profit and is not to engage in the business of selling or trafficking in news.”
“ Article H. Membership and assessments. * * * The New York City News Association shall consist of the following member's: [Then follow the names of eighteen newspapers and the Associated Press.] * * * The expenses of this association shall be met by a pro rata assessment upon each member. * * "x' The officers * * * shall be a president, a vice-president, a *197secretary, a treasurer, and an executive committee of five. * * * The executive committee shall supervise the routine and work of the association and shall audit its accounts. "x" * * The association shall appoint a manager and prescribe his duties.”
The treasurer testified that there was a man at night and another at day who held the position the same as that of city editor on a newspaper. Their titles were night manager and day manager. “I do not mean Hr. Hardenbergh. * * * The day manager or city editor is there all day and all night. He has charge of the reporters of the city department.”
Thompson testified that he was a newspaper reporter in the employ of the association; that he got the story about the arrest of George and Phillip Wahlheimer for the City Hews Association in Jefferson Market Court. “I did not write it; I telephoned it to the office. I took notes of the story there in court, but I wrote no article. I telephoned the story which I secured from court to the office from my notes, and from my memory to the Hew York Hews Association for the purpose of furnishing the newspapers the news of the court.”
The charge is that this story was sent by the association to the World and other papers and published by them. The defendant testified that he had been connected with the association in the capacity of manager and secretary for nearly fifteen years; that it has about 115 or 120 employees, mostly reporters. There are editors, from eight to four at different times. That his duties in connection with that association are to supervise its operations under the direction of the executive committee. “ I mean by supervise that I manage the business end, the financial end, and see that the work is carried on as desired by the executive committee. I do not have anything personally to do with the writing or editing of any stories that are sent in. That work is assigned to the editors by the executive committee; by their direction. I first heard of any such subject as Plaintiff’s Exhibit 4 which you show me, when the action was started by Mr. Wahlheimer against the World. I do not know anything about any such story as that having been sent out. I did not ever write or edit such a stoiy. * * * The day manager when he is on duty determines what stories *198shall be sent out, and the night manager when he is on duty. That is not a part of my duties to do any such thing as that. * * * That passing through the office channels is not my duty to supervise, and as a matter of fact I did not edit this story, and I never saw it until long after the commencement of this action.”
This action was commenced just before the expiration of the two-year Statute of Limitations. The court charged the jury: “ The first question for you to determine is, was Hardenbergh, the defendant here, one of those engaged as a principal in the management of that business; that is to say, was he one, who, no matter what his .title was, or what he was called, was engaged in the collection and handing out of that particular kind of news, or was .he a mere subordinate employee with clearly defined duties ? If you determine that he was a mere employee of whomever was running that association, then you Will find a verdict in favor of the defendant; but if you find that he was a person who actually and responsibly was engaged in the collection of news and handing it out to the newspapers at the time in question, then you can come to the consideration of the other questions in the case. ”
The respondent claims that the defendant may, upon the evidence, be held liable as a joint tort feasor or upon the doctrine of respondeat superior. I am of the opinion that neither theory supports this recovery. The complaint is framed upon the theory that the New York City News Association is a voluntary association and it is so alleged, and it alleged that it has no secretary and treasurer. That was entirely disproved on the trial. It has a full set of officers. It was the principal and it ought to have been sued. The fact that the names of the papers are used in the constitution instead of the corporations publishing them does not seem to me to be of any importance. The situation was made clear by one of. the witnesses: “ When I say a newspaper is a member, I mean that a newspaper holds membership in the association. The corporation, not the editor of the newspaper. These general meetings are meetings of representatives of these corporations, of these newspapers.”
Here we have a personal judgment against a man who was the manager of a voluntary association, upon an alleged pub*199lication by that association, of which he knew absolutely nothing until two years after the event. He could not be held on the doctrine of respondeat superior because he was not the superior; he was a mere employee of the association which was the superior and could properly be sued under that doctrine. Liability under this doctrine depends upon establishing that the relation of principal and agent or master and servant existed and that the matter was written or published within the scope of such agency or service, and for the benefit of such principal or master. He could not be a joint tort feasor because he not only had nothing to do with the writing or the publication of the libel but knew nothing about it. I had always supposed that to be a joint tort feasor one must join in doing a wrong. The reporter who reported it, the editor who rewrote it and directed its distribution might be held as joint tort feasors. But I cannot see how the general .manager or any other employee who had nothing to do with it and knew nothing about it can be so held.
The extraordinary situation here presented is emphasized by the fact that the jury were permitted to find punitive damages against this defendant though entirely ignorant of the libel and its publication. The court charged: “If you find that the publication was made with such gross recklessness and wanton indifference to the rights of others as to amount to actual malice, you may if you choose, add a sum for punitive damages,” to which counsel excepted and asked the court to charge that recklessness or carelessness of the reporter cannot be imputed to Mr. Hardenbergh, which was denied and excepted to.
I think this judgment and order should be reversed and a new trial ordered, with costs and disbursements to the appellant to abide the event.
Scott, J., concurred.
Judgment and order affirmed, with costs.