(dissenting). The defendant is charged with libel of the plaintiff, in causing the production and exhibition before the public of a photoplay. The offensive matter of which the defendant is said to be guilty is set forth in paragraphs “ 7 ” and “ 8 ” of the complaint. There it is alleged generally that the defendant “ intended to convey to the public that ‘An American Tragedy ’ represented the lives ” of plaintiff’s family, and that the same “ was so accepted ” by the public. The plaintiff alleges that she was represented as the mother of Grace Brown, one of the characters in the play and the victim of a murder, the trial of which is reported in People v. Gillette (191 N. Y. 107). The charge is that the picture *524“ portrayed ” that plaintiff was “ an illiterate, unkempt, slovenly, neglectful and low-grade person; that she was the wife of a mean, illiterate, unkempt, lazy, low-type or degenerate person; that she had neglected her daughter both * * * educationally and morally, or had compelled her, through lack of care, to seek her own livelihood as a mere child; that she had permitted her said daughter * * * to carry on clandestine relations with Chester Gillette, or others; ” and that the photoplay “ so depicted the plaintiff, by the manner of said pictures and films, as to render the plaintiff an object of contempt and ridicule among her friends, neighbors and those who knew her or knew of her; * * * that by such allusions, innuendo and intimation, plaintiff was made therein to appear as poor-white-trash, and a disreputable, untidy product of the hills, without decent care for her daughter and as contributing to the condition in which her daughter found herself.” These allegations are followed by a statement that a copy of the picture “ is hereby referred to * * * and made a part of this complaint.” No language shown in .the moving picture, if any, is quoted or referred to.
It is thus seen that the entire charge of the complaint is based upon the word “ portrayed,” or the synonymous expressions “ depicted,” and “ made to appear.” And following one or the other of these expressions in the complaint, the plaintiff sets down the conclusions which she deems justified by the portrayal. But she does not allege or describe any word, or act, or relation, or scene, or circumstance, from which she has drawn her conclusions, or upon which she has based her charge. Neither does the plaintiff describe in any degree, or attempt to describe, any person, place or view which the picture represents or pretends to represent. The plaintiff has not alleged the facts upon which her charge is based, but only her ultimate conclusions. Assuming the allegations to be true, an examination of the complaint does not enable the court to determine whether the defendant was guilty of libel or not. If the showing of the motion picture in question warranted the conclusions of the plaintiff, it must have delineated persons, acts, relations, scenes, and the use of language, or some of these, which were a reflection upon the good character, or the social or business standing of the plaintiff. If so, these could and should have been adequately described. The elements which constitute a disgraceful occurrence may be described as readily from a moving picture screen as though the original transaction had been witnessed. Even more so, because the photoplay may be viewed many times over.
The complaint does not state that the photoplay • represented any act, or failure, of the plaintiff, or of any other person, or represented any circumstance, indicating that the plaintiff, or any *525member of her family, could not read or write, or was unattractively clothed, or neglectful of the person, or heedless of associations, environment or the respect of others; neither is it alleged that the picture exhibited any act or failure of the plaintiff toward or in relation with her daughter which indicated that the plaintiff was not concerned and anxious about the education and morals of her daughter. And it is not alleged by what act, failure or circumstance the plaintiff was depicted as permitting her daughter to carry on clandestine relations with men, or what those secret relations were.
If language is made the basis of libel, the language must be pleaded. If pictures or other recorded representations of persons, conduct, places and relations are to be made the basis of libel, these should be described with sufficient detail to enable the court to determine that libel has been committed. To draw conclusions, and to reach the determination, are the functions of the court. The court is not free to substitute for its judgment the conclusions of the pleader. Here the plaintiff has charged only the innuendo, as it were, and has entirely omitted any allegations of the facts, or any description thereof that would justify her conclusions.
While it may be that plaintiff’s deductions are justified in truth, the complaint furnishes no basis of fact therefor. The complaint should be dismissed as not stating a cause of action, with permission to plead anew.
Crapser, J., concurs.
Order affirmed, with ten dollars costs and disbursements.