
    The People of the State of New York ex rel. Obed Paddock, Appellant, v. Edward R. Carroll, Clerk of the Court of General Sessions of the Peace of the City and County of New York in and for the County of New York, and James J. Hagan, Keeper of the City Prison of the City of New York, Respondents.
    
      Libel —proof required as to the application of the alleged libelous statements to the party libeled.
    
    An affidavit stating that a certain person “did maliciously publish of and concerning the Sun Printing and Publishing Association * "x" - the following defamatory language, to wit: ‘ The Sun is against good wages,’ and ‘ The Sun now practices what it long has preached, that workingmen have no rights that capital is bound to respect,’ ” sufficiently charges the commission of the crime of libel, under section 289 of the Code of Criminal Procedure; but in the absence of proof of the nature of the business of the Sun Printing and Publishing Association, or that it published the Sun specified in the libel, or that the Sun so specified was a newspaper, or of any other proof' in support of the charge that the defamatory words were published concerning the Sun Printing and Publishing Association, or had any relation to its business, the magistrate has no jurisdiction to commit the accused.
    Appeal by the relator, Obed Paddock,- from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of December, 1899, dismissing writs of habeas corpus and certiorari sued out by him and remanding him to the custody of the keeper of the city prison.
    
      Benjamin Patterson, for the appellant.
    
      Charles E. Le Barbier, for the respondents.
   Barrett, J.:

The relator was committed by a city magistrate upon a charge of libel. The affidavit upon which he was held states that he “did maliciously publish of and concerning the Sun Printing and Publishing Association * * * the following defamatory language, to wit: ‘ The Sun is against good wages,’ and ‘ The Sun now practices what it long has preached,, that workingmen have no rights that capital is bound to respect.’” The affidavit shows the manner in which these defamatory words were published, but fails to connect the corporation therewith. The charge itself was sufficient (Code Crim. Proc. § 289), but there was no evidence to support it in the particular referred to. This section 289 of the Code of Criminal Procedure dispenses with an averment upon that head, but not with proof. On the contrary, after providing that an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application of the defamatory matter to the party libeled, and that it is sufficient to state generally that the same was published concerning him, adds, “ and the fact that it was so published ” — that is, concerning him — “ must be established on the trial.” Conforming the preliminary inquiry before a magistrate to this provision the charge was doubtless sufficient. There should, however, have been some evidence tending to support it. Otherwise, the magistrate was without jurisdiction to hold the relator. The libel complained of was a malicious publication by writing or printing which had a tendency to injure the- corporation named in its business. But' its business was not stated, nor was it shown that it published the Sun specified in the libel, nor that the Sim so specified .was a newspaper. There was, in fact, no proof in support of the charge that the defamatory words were published concerning the corpora7 tion, nor that they had any relation to its business.

The" other points presented by the appellant are without merit, but, because of the lack of proof in the particular mentioned, the order should be reversed and the relator discharged.

Van Brunt, P. J., Patterson, . O’Brien and McLaughlin, JJ., concurred.

Order reversed and relator discharged.  