
    William C. Russell, Respondent, v. Stephen Barron, Appellant.
    Second Department,
    March 9, 1906.
    Slander—words charging one with exacting commissions — complaint —■ meaning of words dependent on extrinsic facts must be alleged.
    Spoken words which charge an employee with demanding a commission of others on hiring.them for his employer do not charge á crime and are not slanderous per se. If they have a slanderous meaning dependent upon extrinsic facts, such meaning must be alleged or the complaint fails-to state a cause of action.
    When words may be slanderous or innocent, dependent upon extrinsic facts, they will be given an innocent interpretation as a matter pf law, if no question for the jury-is raised by proper allegation as aforesaid.
    Appeal by the defendant, Stephen Barron, from an order of the Dutchess County Court, entered in the office of the clerk of the county of Dutchess on the- 1st day . of May, .1905, granting the plaintiff’s motion for a new trial of the action.
    
      Joseph Morschauser [Charles Morschauser with him on the brief], for the appellant.
    
      Frank G. Rikert [Elijah T. Russell with him on the brief], for the respondent.
   Gaynor, J.:

The action is for damages for slander. The complain^ does not state a cause of action. The words alleged are that the plaintiff, in employing men for his employer, charged them a commission or fee on their wages. To do this is not a criminal offense, and, therefore, the words are not defamatory in that sense. It is said, however, that they impute to him dishonesty to his employer, and, therefore, touch him in his position of employment, which is a separate, head of slander. But the complaint does not allege such a meaning, and where the words are equivocal, i. e., capable of an honest or a dishonest, i. e., a slanderous or an innocent, meaning, dependent on extrinsic facts, the complaint must allege the latter meaning in order to state a cause of action (Taylor v. Wallace, 31 Misc. Rep. 393). Such an allegation makes the meaning a question of fact for the jury. It is common for employees- to take commissions or tips from those dealing with their employers through them, with vthe knowledge and consent of such employers. Or the reduction in the present case may have been for the employer. The complaint here presents no question of fact for the jury as to the meaning of the words, and therefore the innocent meaning must be taken as matter of law.

But as this point was not raised below, it is not available here to reverse the order granting a new trial, and it can be cured by an amendment. p

The order is affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Order of the County Court of Dutchess county affirmed, with costs.  