Opinion
October 29, 1965
In this action for slander the plaintiff appeals from a judgment entered upon an order dismissing the complaint at the close of plaintiff's case. The complaint alleged that on October 4, 1961, defendant referred to the plaintiff, in the presence of two persons, as a prostitute implying further that she had frequent sexual relations with numerous men. We agree with appellant that there is sufficient evidence in the record to raise a question of fact requiring jury determination. In reviewing a judgment of nonsuit the appellant must be afforded "the benefit of every reasonable inference to be drawn from [the] facts proved" ( Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 444-445). The jury could have found that the defendant's response on the telephone constituted an admission of prior publication. Order and judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.