Roth v. Tribune Ass'n

Scott, J.: The action is for damages for libel. The demurrer, which has been sustained, is for general insufficiency. The plaintiff is engaged in business at 209 East Sixty-sixth street, in the city of New York, under the name of I. Roth. The libel on its face refers to one Isaac Roth, said to be employed at the same address. The complaint alleges that the libel was published of and concerning the plaintiff, and was intended to charge him with the offenses described in the libelous article. If the article was, as alleged, so published of and concerning the plaintiff, it is of no consequence that it described him by a wrong name. It is true that the complaint, perhaps unnecessarily, contains numerous allegations tending to show that the charges made in the article could not truthfully have been written concerning plaintiff, and defendant argues that they contradict the allegation that the article was published of plaintiff, and show that it must have been published of some one else. This argument is not convincing. As we read these allegations they amount to nothing more than a denial, in detail, of the charges alleged and admitted to have been made of and concerning the plaintiff. The authorities upon which defendant relies (Fleischmann v. Bennett, 87 N. Y. 231; Corr v. Sun Printing & Pub. Assn., 177 id. 131; Fagan v. N. Y. Evening Journal Pub. Co., 129 App. Div. 28) are not, in our opinion, applicable. In each of them the plaintiff had obviously pleaded himself out of court by allegations showing not only that the publication could not have referred to him, but that it in fact 912 referred to some one else. This is not, as we think, the effect of the present complaint. On the contrary, the allegations of the 3d paragraph indicate that there was no other person, except plaintiff, engaged in the business of druggists’ supplies at the address given in the article complained of. The judgment appealed from must be reversed and the demurrer overruled, with costs to appellant in this court and in the court below, with leave to defendant to withdraw its demurrer and answer within twenty days upon payment of said costs. Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred. Judgment reversed and demurrer overruled, with costs in this court and in the court below, with leave to defendant to withdraw demurrer and answer on payment of costs.