
    Harry G. Soper, Appellant, v. Edward H. Butler, Respondent.
    
    Fourth Department,
    November 14, 1906.
    Appeal by the plaintiff, Harry G. Soper, from a judgment of the County Court of Erie county in favor of the defendant, entered in .the office of the clerk of the county of Erie on the 7th day of June, 1906, dismissing the complaint, and also from an order entered' in said clerk’s office on' the 15th day of June, 1906, denying the plaintiff’s motion for a new trial.made upon the minutes.
    
      H. B. Butterfield, for the appellant.
    
      Simon Fleischmann, for the respondent.
    
      
      See Soper v. Associated Press (ante, p.-815);—[Rep.
    
   Kruse, J.:

The action is for libel. The alleged libelous article is-the same dispatch as that set forth in the action of the same plaintiff against the Associated Press, with the addition of a heading thereto and a statement appended to the dispatch.

Upon the trial the defendant made a motion to dismiss the complaint upon the ground that the complaint as amplified, by the bill of particulars does not state a cause of action, specifically claiming that it appears by the complaint and bill of particulars that the matter was not published of and concerning the plaintiff, and does not . relate to the plaintiff in any manner. The motion was granted and the plaintiff excepted.

We think the heading and statement appended to the published dispatch and the additional facts contained in the bill of particulars are not of such a character as to take the case out of the effect of the decision of the case of Soper v. Associated Press (115 App. Div. 815), decided herewith. While these facts tend to show not only that the dispatch was published in good faith, but also that the plaintiff was not the person referred to in the dispatch, we cannot say as a matter of law that the general allegation of the plaintiff that the article published of and concerning him was superseded by these additional facts and the other allegations of the complaint, making it appear thereby that it was not published about the plaintiff. ■ .

If we are correct in the conclusion we have reached, it follows that the complaint should not have been dismissed.

The judgment and order denying the motion for a new trial should be reversed and a new trial ordered, costs to the appellant to abide the event.

All concurred, except McLennan, P. J., and Nash, J., who dissented in an opinion by Nash, J.

Nash, J. (dissenting):

The alleged libel is an Associated Press dispatch with .the addition of a heading: “MURDERER PARKER NOT KNOWN HERE. Story from Detroit that he was employed at Lenox Hotel here is denied.” -

The dispatch as published in the.defendant’s newspaper reads as follows:.-

“ Detroit, Mich., Aug. Id.— Head waiter Merrifield of the Rus- . sell House cafe to-day at the County Jail saw Harry Parker,-who, with Harry Johnson, was arrested at Cleveland charged with the murder of pawnbroker Joseph Meyer in' this city July 2.8th.' Merrifield insisted that Parker under the name of Harry Soper, worked under him a year ago in the Lenox Hotel at Buffalo. He said that Parker or Soper had been an Episcopalian divinity student, whose home was at Toronto, and that the prisoner lost his' eye about three years ago in a firecracker accident.” ' .

The person referred to in the body of the dispatch'is Harry Parker, who, with Harry Johnson, was arrested at Cleveland, charged with the murder of pawnbroker Joseph Meyer, who Head waiter Merrifield of the Russell House cafe insisted worked under him in the Lenox Hotel at Buffalo under the name of Harry Soper. " Merrifield said that Parker or So.pér, or Parker under the assumed name of Soper, had been an Episcopalian divinity .student whose home was at Toronto, and that the person had lost an eye in a fi.recra.cker accident.

The language of the dispatch is unambiguous; but one person is mentioned or referred to in the dispatch and that >vas the prisoner, .then in jail in Detroit, charged with the murder of Meyer; not that the person there was Harry Soper, but a person whom Merrifield recognized as having assumed the name of Harry Soper. The article in no way refers to the person in jail as the real Harry Soper ; oh the contrary it referred to a person who had assumed liis name. The statement reduced to its simplest form is, Merrifield insisted that Harry Parker, .the prisoner, had worked at the Lenox Hotel in Buffalo under an alias.” ' -

It is urged that under the pleadings the plaintiff has brought his case within the principle held in Fleischmann v. Bennett (87 N. Y. 231) and Corr v. Sun Printing & Publishing Assn. (177 id. 131).

I prefer to place the decision upon the ground that the publication complained of does not purport to refer to the plaintiff, but to the person recognized by Merrifield' as having at one time assumed his name.

McLennan, P. J., concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.  