(dissenting):
I do not think that the libel in this case refers to any particular individual’ so as to entitle the plaintiff to maintain an action by *485merely alleging in the complaint, under section 535 of the Code of Civil Procedure, that the libel was published of and concerning her. The libel states the fact of the death of a theatrical agent' “ with symptoms which seem to indicate a case of poisoning; ” that “ In connection with this death the police are searching for ,a woman, who is said to reside somewhere on the upper East Side.” It is further stated that the deceased was said to have repeatedly called the name of a girl who worked in a wholesale house downtown, and also to have given her address; that he called to his father, “ She has done it;' * * * I wish to see her;” that he cried in his delirium, “ Here she is again, keep me away from her. She gave me the stuff.” It was further stated that • a woman called up the apartment house over the telephone and asked about the deceased, and when told that he was ill, said it was too bad and that she would call on him in the course of the evening. There is nothing here to connect this person spoken of with any particular- woman, so that the proof of any existing fact could show that it applied to the plaintiff. (Hauptner v. White, 81 App. Div. 153.)
I think the judgment should be reversed.
Clarke, J., concurred.
Judgment affirmed, with costs, with leave to appellant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed.