Opinion
June 2, 1916.
William Rand, Jr., for the appellant.
Lewis Schuldenfrei, for the respondent.
The action is for damages for a libel. The libel was contained in a letter written upon paper which had the defendant's letterhead, and was signed "American Optical Company, H.H. Styll, Legal Dept." Upon the trial of the action the plaintiff put Styll upon the stand, who swore that he wrote the letter but that he was acting for three trustees who, under the laws of Massachusetts, held by transfer the property of the defendant, and that he was not the attorney for the defendant at the time he wrote the letter. The plaintiff was surprised by this evidence, and stated that he could make no further proof connecting the defendant with the publication, and the complaint was dismissed. Plaintiff afterwards made this application to open the judgment, alleging his discovery after the trial that the letter in question was written upon paper which contained the letterhead of the defendant company.
Under the laws of Massachusetts it seems to be permissible for a corporation to transfer its property to trustees and for the trustees thereafter to do business in the name of the old corporation. For any liability in the course of that business the trustees are personally liable, and not the corporation. While this practice under the Massachusetts law is apt to create confusion and lead the public to believe that the acts of the trustees were in fact the acts of the corporation, nevertheless after the property had been transferred to the trustees under whatever name the trustees did their business their acts were in fact independent of the corporation and could create no liability against the corporation, It is argued that because the letterheads were allowed to be used by the trustees, including the words "Incorporated 1869," the defendant corporation was estopped from claiming that the act of Styll was not the act of the corporation. It is probable that when the property was transferred to the trustees some letter paper was also transferred. The use of that letter paper thereafter by the attorney for the trustees was the act of the trustees and not the act of the corporation, and we are unable to see any element of estoppel which would prevent the corporation from denying the authority of the attorney to act in its behalf.
As the plaintiff fails to show, therefore, that any cause of action exists against the defendant, the judgment should not be set aside and the order should be reversed, with ten dollars costs and disbursements, and motion denied.
CLARKE, P.J., SCOTT, DOWLING and PAGE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.