Nunnally v. New-Yorker Staats-Zeitung

Patterson, J.: The article published by the defendant, and which the plaintiff asserts constitutes a libel upon her, relates to the same matter as that considered in the case of Nunnally v. Tribune Association (111 App. Div. 485). It differs from the article published in the Tribune in some respects. There are not as many statements contained in the defendant’s article which by proof the plaintiff could show referred to her, but there is enough to enable' her to give evidence that she was the person defamed. It is indisputable that the publication complained of by the plaintiff is libelous per se, and that where a plaintiff is not named, “but is indicated by circumstances contained in the article which are capable of direct proof that the plaintiff was the person to whom reference was made,” the action may be maintained. (Corr v. Sun Printing & Publishing Assn., 177 N. Y. 135.) In commenting upon sec-, tion 535 of the Code of Civil Procedure, it was said in Hauptner v. White (81 App. Div. 157): “ Undoubtedly if evidence of any extrinsic fact would connect the plaintiff with this statement * *' * this provision of the Code would apply and the allegation of such fact in the complaint would be unnecessary.” The allegation that the libelous matter was published of and concerning the plaintiff is one of fact and under such an allegation a plaintiff may give evidence of all the surrounding circumstances and other extraneous facts which would explain and point out the person to whom the allusion applies, if' the general allegation authorized by the Code is controverted by the defendant in his answer. The matter is simply one of identification, and, as said by Vann, J., in Corr v. Sun Printing & Publishing Assn. (supra), “ The effect of the statute is [484] to do away with the allegationv of such facts as tend to identify the plaintiff as the person libeled. Unless it does tiffs;, it does nothing.” - Blit assuming that if a-libel is so general in its- character that if may apply to any óf a great number of persons, and is only made to relate to a particular plaintiff by his adoption of it as applicable-to himself, the géneral allegation of' identity authorized by the Code would.be insufficient, then-this complaint contains sufficient to enable the plaintiff to give proof under her general allegation. The article states that the young man whose death is referred to therein, in his delirium, “ is' said to have repeatedly called the name of a. gild who. worked in a wholesale house down town, also to have given her address; ” that “ the Detectives Fitzsimons and ■O’Leary went to the address given'by Melles,, but the girl was not at home,” - Under the allegation of the eoUiplaint,' fhe plaintiff could give evidence that, she was the person referred to as living at that address. The article also contains the statement that the coroner said: “We naturally are unable to say what is in the case until we have interviewed the girl whose name young- Melles gave in his delirium.” She -could give evidence that she was the person -thére, referred to. . "' It is insisted by the appellant that the complaint is insufficient because from the character and text, of the article no one reading -it would understand that it referred to the plaintiff as the party suspected or accused of crime. But the allegation of the complaint in the statement of special damage shows that the plaintiff’s employers understood her to be the person referred to in that article, for they discharged her from their employment in consequénce of it. The demurrer was properly overruled and the interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw the demurrer and answer -the complaint within twenty days from service of a copy of the order to be entered héreon, on payment of-costs in .this court and in the court below. P’Bbien, P. J., and Lattghlin, J., concurred; Ingbaham and Clabke, JJ., dissented.