
    WELLMAN v. SUN PRINTING & PUBLISHING ASS’N.
    (Supreme Court, General Term, Second Department.
    December 12, 1892.)
    1. Libel against Plaintiff’s Deceased Wife. The mere fact that a publication charges plaintiff’s wife, since deceased, with having procured a miscarriage upon her person, is not libelous against plaintiff.
    2. Complaint—Demuiíiíer. Where a complaint for libel sets out the article at length, which contains no libelous statement against plaintiff, and such complaint is demurred to, a mere allegation therein that" the article was published of and concerning plaintiff, being at variance with the facts stated, does not make out a cause of action under the principle that a demurrer admits the complaint.
    Action by George F. Wellman against the Sun Printing & Publishing Association to recover damages for an alleged libel published by defendant. From an order of the special term sustaining a demurrer to the complaint, and a judgment thereon dismissing it, plaintiff appeals. Affirmed.
    
      The complaint was as follows:
    “The plaintiff, in complaining against the defendant above named, and for his amended complaint herein, alleges for cause of action the following^ facts, to wit: (1) At the time and times hereinafter mentioned, as the plaintiff is informed and believes, the defendant was and now is a domestic corporation, duly organized and incorporated under the laws of the state of New York, and doing business as such in the city and county of New York in the publication and circulation of a daily newspaper, known and called ‘The Evening Sun.’ (2) That on or about the 1st day of February, 1890, the said defendant, contriving and wickedly and maliciously intending to injure the plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, with and among all his neighbors and other good and worthy citizens, and to cause it to he suspected and believed that the plaintiff’s deceased wife, Sophia M. Wellman, had in her lifetime been untrue to him, and unfaithful to her marriage vows; that she had been guilty of illicit intercourse or criminal connection with some man other than her husband, the plaintiff herein, by whom she had become pregnant; that she, the said Sophia M. Wellman, had been guilty of grave crimes and offenses against the laws of the state; and that while pregnant, as aforesaid, she had procured one Dr. Mary J. McCleery, a midwife, to produce an abortion upon her person,thereby causing and producing her, the said Sophia M. Wellman’s, death,—and to vex, harass, and oppress the plaintiff, and to degrade and disgrace the name, character, and memory of his deceased wife, and to injure him, said plaintiff, in his professional and social relations, the said defendant, on or about the 1st day of February, 1890, as aforesaid, at the city of New York, falsely, wickedly, and maliciously composed and published, or caused or procured to be composed and published, in a daily newspaper called ‘ The Evening Sun,’ of and concerning the plaintiff, and of and concerning his said wife, Sophia M. Wellman, the deceased, a false, scandalous, malicious, and defamatory libel of and concerning her death, and the -cause of her death, containing, among other things, the false, malicious, scandalous, and defamatory matter of and concerning the plaintiff and his aforesaid wife, to wit: ‘ The lawyer, [plaintiff meaning,] who is very well known both down town and in Harlem, told the detectives that last Sunday his wife first told him of her condition, and that she intended to send for a doctor of her own choice. Next day a strange woman, who, it appeared, was Dr. McCleery, put in an appearance. She stayed for some days, and finally Mr. Well-man’s suspicions, [meaning plaintiff's suspicions,] were aroused. These suspicions were shortly confirmed by what he got his wife to admit. Notwithstanding her story of shame, Mr. Wellman [the plaintiff meaning] tried to do what he could for “his indiscreet wife. ” * * * As a result of Mrs. Wellman’s story, detectives went to the Thirty-Fourth street house and arrested Dr. McCleery. * * * It is rumored that there is a young man in the case, and another arrest may follow.’ (8) That all and singular the aforesaid statements, allegations, and insinuations, by innuendoes and otherwise, of and concerning his deceased wife, the said Sophia M. Wellman, and the cause of her death, so printed and published in the Evening Sun on February 1, 1890, as aforesaid, were and are most wickedly and maliciously false and untrue in each and every particular. (4) That the defendant caused and procured the said newspaper called ‘The Evening Sun,’ containing the aforesaid libelous and scandalous matter, to be extensively circulated through the mails and otherwise in the city of New York and in other cities and towns of the United States on February 1, 1890, as aforesaid, and at divers other times, to plaintiff’s great loss and damage. (5) That at the times of the publication of the false, scandalous, and defamatory matter of and concerning the plaintiff, and of and concerning his wife, Sophia M. Wellman, as aforesaid, he was and still is an attorney and counselor at law, and duly engaged in the practice of his profession in the cities of New York and Brooklyn; and that, by reason of the publication and circulation of the aforesaid libelous and scandalous matter, he has been greatly damnified, and has suffered and sustained special damages, in this, to wit: That his professional business has been greatly injured and depreciated, and his pecuniary income-and profit therefrom largely diminished in more than $1,000; that he has lost social and professional position and standing in the community, and has been thereby brought into public scandal, infamy, and disgrace, with and among all his neighbors and other good and worthy citizens, and solely for the cause aforesaid. Wherefore the plaintiff demands judgment against the defendant as and for his damages in the premises in the sum of $50,000, besides the costs and disbursements of this action. ”
    
      Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    A. J. Moore, for appellant.
    Franklin Bartlett, for respondent.
   BARNARD, P. J.

The complaint states that the libel in question charged that Sophia Wellman, the plaintiff’s wife, died under circumstances which aroused her husband’s suspicion that she had caused her own death by procuring a miscarriage upon her person. The article states that the plaintiff was a lawyer. The complaint states that the article was published to injure the plaintiff. No cause of action is stated in favor of the plaintiff. The injurious publication solely affects the deceased lady, and is a personal wrong which died with her. Cregin v. Railroad Co., 75 N. Y. 192.

There is an allegation that the article was published of and concerning the plaintiff. No libelous statement against him is made in it. The mere statement in the complaint that the article was published of and concerning the plaintiff does not, under the principle that a demurrer admits the complaint, make out a cause of action. Fleischmann v. Bennett, 87 N. Y. 231. The facts stated are at variance with this allegation. The libel is upon the wife. The libel is not supported by reason of the plaintiff’s professional character being injured by the "libel. No charge is made against the professional character of plaintiff, and no legal reason exists why the plaintiff, as a lawyer, should be injured by it. The order sustaining the demurrer should therefore be affirmed, with- costs.  