Van Heusen v. Argenteau

McLaughlin, J.: I think the article complained of is libelous per se. It tends to disgrace or bring into ridicule and contempt the person to whom it relates. (Morey v. M. J. Assn., 123 N. Y. 207; Stokes v. Stokes, 76 Hun, 314.) It does not identify the plaintiff- as-the person libeled, but the complaint alleges.it was published of and concerning her. Being libelous per se and not identifying the person libeled, it was unnecessary to allege in the complaint “ any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter,” inasmuch as the allegation was that it was published of and concerning the plaintiff (Code Civ. Proc. § 535), which is a fact admitted by the demurrer. It appears on the face of the complaint that evidence may be given by the plaintiff which will show that she was the person referred to in the publication. As a pleading this is all that is required, where it is charged that the matter was published of and con cerning her. This was the rule laid down in Nunnally v. Tribune Assn. (111 App. Div. 485), Mr. Justice Páttebson saying: “But we conceive the rule to be, under the Code, that where it appears on the face of a complaint that evidence may be given by a plaintiff which will undoubtedly connect him with the alleged libelous matter, such a complaint is sufficient where it charges that the matter was published of and concerning him.” That case went to the Court of Appeals and the judgment was affirmed on his- opinion (186 N. Y. 533). The case has since been followed by the fourth department in Soper v. Associated Press (115 App. Div. 815; affd., 188 N. Y. 550). [778] The Complaint should be liberally construed. (Morrison v. Smith, 177 N. Y. 366; Martin v. Press Pub. Co., 93 App. Div. 531.) At the trial the plaintiff may be able to prove- that the- article was' published of and concerning her ; that she had a dog -at, the- show in the same class with the dog Chin Ghino and was the- only other person who did' have a dog in that class; that she was the person who discovered on-the last-day of the show that there was dye .on the coat of the dog Chin Ghino and that she had an opportunity to put this dye On ; and the disqualification of that dog Was to her advantage because-it enabled her dog to take the prize. If such proof be offered, can there be any question but that it.Would be admissible under the complaint, and if admitted and not contradicted, would it not justify the jury in finding defendant liable ? The. plaintiff, as it seems to me, is entitled, by express provision of the section of the Code aboye cited, to .prove the: facts suggested and others if - she can, without alleging them. Such facts simply show' the. application of the libelous matter to her ; they identify the object of the libel by showing that she-' is the only person to whom the article could have referred. (Weston v. Commercial Advertiser Assn., 184 N. Y. 479.) -This complaint' is not like those in Fleischmann v. Bennett (87 N. Y. 231) and Corr v. Sun Printing & Pub. Assn. (177 id. 131). In the complaints in those cases there were allegations which showed tliat the libelous matter did not relate to the plaintiffs; in other words, in the complaint in each case facts were pleaded which showed that the plaintiff was hot the person referred to m the' article complained of. The pleading now before us is different. There are no allegations in the -complaint' which .would; exclude proof,Of any'fact tending to identify the plaintiff as the.person at. whom the libelous article .was directed. I any of the opinion that the complaint states a good cause of action; that the demurrer was properly overruled and"the judgment ■appealed from should be affirmed, with costs, with leave to the defendant to.withdraw demurrer and to answer on payment of costs in this court and in the court below. Patterson,. P-. J.,, Laughlin and Scott, JJ., concurred; Houghton, J., dissented.