[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 133 The plaintiff seeks to recover damages for an alleged libel published in the defendant's newspaper, *Page 134 known as The Sun, printed and published in the city of New York.
The defendant interposed a demurrer to the complaint on the ground that it appears upon the face thereof it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, with leave to the defendant to answer on terms which were not accepted, and the complaint was dismissed. The Appellate Division affirmed the final judgment duly entered.
The question involved in this appeal is the proper construction to be given section 535 of the Code of Civil Procedure, which reads as follows: "It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. * * *"
We are of opinion that the complaint in this case brings it within Fleischmann v. Bennett (87 N.Y. 231), which holds that although the complaint contains the general words of section 535, the defamatory matter was published of and concerning the plaintiff, it does not aid him where this general averment is contradicted and rendered nugatory by other allegations.
This court said: "As the libel neither describes nor refers to the plaintiff, nor to the business in which he was engaged, but names a different business, and a firm of which in a preceding portion of the complaint it is alleged he is not, and never was a member, it is manifest that the plaintiff cannot in any way be connected with the libelous matter set forth. * * * There is no principle which authorizes the introduction of any such evidence, where, on the face of the complaint, it is clearly apparent that the libelous words do not relate to, and have no connection with the plaintiff or his business as stated therein."
In the light of this decision let us examine the libel and *Page 135 the complaint in the case at bar. The libel in substance charges that at two o'clock in the morning, on a Brooklyn street car, a woman about thirty-five years of age was charged with robbing a sleeping man of his watch; was arrested and at the police station gave her name as Kate Losee, living at 195 Hamburg avenue and was held in $500 bail; that the police recognized her as Kittie Carr, the daughter of a Brooklyn detective; that several years ago many policemen were infatuated with her — one blew out his brains — the second became insane — the third drank himself to death.
We have here the description of a thief and an abandoned woman, abroad at two o'clock in the morning, robbing a sleeping passenger on a street car. The plaintiff comes into court and avers that this libel was published of and concerning her, and the question is whether this general averment is rendered nugatory by other allegations.
The plaintiff alleges that her name is Kate Corr (not Carr); that she is twenty-six years of age (not thirty-five); that she is a teacher by occupation, employed in one of the public schools of Brooklyn and had always borne a good character and reputation. The libel does not refer to Kate Corr; it describes a woman with a different name.
It is, doubtless, true that an action for libel may be maintained where the 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. Many cases in the lower courts illustrate this situation, as for instance, a plaintiff is referred to by his business, his place of business, his residence, and other facts, rendering it clear that he, and no one else, was referred to in the libel. In such a case section 535 of the Code applies, and it would be sufficient for the plaintiff to aver that the article was published of and concerning him; it would be unnecessary to allege in detail the facts essential to connect him with the libel.
In the case at bar the libel clearly states the name of a woman who does not bear the name of the plaintiff; it portrays *Page 136 a woman who years before was known to the police as a notoriously bad character, at a time when this plaintiff may not have attained her majority, driving men to the insane asylum and the grave — a woman, in the language of the libel, who had "dropped out of sight some three years ago."
We are of opinion that it appears upon the face of the complaint that the libel was not published of and concerning the plaintiff, and that the demurrer was properly sustained.
The judgment should be affirmed, with costs.