I concur in the result. The sufficiency of the complaint herein is attacked. The complaint alleges that the defendants presented or caused to be presented to the police commissioner of the city of New York, against the plaintiff, who at that time was a member of the police department of that city, charges which, if true, constituted a felony. The plaintiff alleged in his complaint that the charges were false, that they were presented maliciously and without probable cause, that he was acquitted after trial, and that he suffered damage.
As I read the brief of the defendants, their primary object is to have the court classify, if it can, the action the plaintiff designed to plead. If the court should name it an action for malicious prosecution, the defendants insist that the complaint should be pronounced bad because to hold it to be good would be unwarrantably extending the legal scope of that type of action. (Wass v. Stephens, 128 N. Y. 128; Paul v. Fargo, 84 App. Div. 9.) If the court should denominate the action as one for libel or slander, the defendants contend that the essential element of publication is lacking, and that it appears on the face of the complaint that the doctrine of absolute privilege is applicable. (Moore v. M. N. Bank, 123 N. Y. 420.)
In Kujek v. Goldman (150 N. Y. 176, 178) the court said: “ In remote times when actions were so carefully classified that a mistake in name was generally fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur so as to prevent a failure of justice. This was called an action on the case,’ which was employed where the right to sue resulted from the peculiar circumstances of the case and for which the other forms of action gave no remedy. (26 Am. & Eng. Encyc. of Law, 694.) * * * ‘But this general rule is not applicable to the present case; it would be if there had been no special action on the case before.’ ”
The settled law precludes the necessity of doing more than holding that we think the complaint states a cause of action. The syllabus in Howard v. Thompson (21 Wend. 319) succinctly and accurately expresses the decision: " An action on the case for a libel lies against a party making a communi*328cation in writing to the head of a department of the government, charging a subordinate officer of such department with peculation and fraud of various kinds, where such subordinate officer is subject to removal by the officer to whom the communication is addressed; but such action, though in form for a libel, is in the nature of an action for a malicious prosecution, and the proof so [to] sustain it must be the same as is required in the latter action, i. e., the plaintiff is bound to show both malice and a want of probable cause.”
I perceive in the modern legislation, of which sections 300, 301 and 302 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 341, and Laws of 1905, chap. 180) are typical, and which gives to a subordinate officer the right to a formal hearing and confers upon the head of a department the power to administer oaths and conduct the hearing, no ground sufficient to exempt the instigator of false charges, acting maliciously and without probable cause, from the rule of liability established by the authority cited.
The corporate defendant’s assertion that its legal constitution is so peculiar that it may inflict with impunity a wrong which would be actionable if done by others, is without authority to sustain it. I deem it subject to the rules of conduct to which corporations generally are held. (Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321; Schwarting v. Van Wie N. Y. Grocery Co., 69 id. 282.) A corporation is not acting in a governmental capacity when it maliciously, untruthfully and without probable cause defames a citizen.
Carr, J., concurred.
Order affirmed, with ten dollars costs and disbursements.