
    Harry G. Soper, Respondent, v. The Associated Press, Appellant.
    Fourth Department,
    November 14, 1906.
    Libel — article charging that person imprisoned was the plaintiff — demurrer to complaint overruled.
    When an article states that one P. who was imprisoned on a charge oí murder was said by one who visited him to be S., the plaintiff, and the latter alleges that the article was published of and concerning him, the compliant is not subject to demurrer on the theory that the statement was made only in regal'd to the man actually imprisoned and that he was the only one referred to. If the article intended to charge that the person imprisoned was actually the plaintiff it was published of and concerning him.
    Nash, J., and McLennan, P..J., dissented, with opinion.
    Appeal by the defendant, The Associated Press, from an inter- . locutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of July, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer' to the complaint.
    "The action is for libel, and' the complaint contains the usual allegations of malice, and alleges the publication by the defendant "of and concerning the plaintiff of the following article:
    “Detroit, Mich., Aug. 14.—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 28th. Mefrifield 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 prisone" lost his eye about three yrnars ago in a firecracker accident.”
    
      James McCormick Mitchell and Edward Hance Letchworth, for the appellant. •
    
      H. B. Butterfield, for the respondent.
   Kruse, J.:

The defendant challenges the sufficiency of the complaint, contending that it fails to state facts sufficient to constitute a cause of action.' To raise that question the defendant demurred to the complaint upon that ground."' The demurrer was overruled, and the defendant appealed to this court."

' We think the demurrer was properly overruled for the reasons stated by Mr. Justice Keneeiok in his opinion, at Special Term, with which we fully agree. We desire to add a single suggestion and call attention to the reasoning and authority of a case in support thereof.

It is contended in support of the demurrer thitt"although the com., plaint expressly alleges that the article was published of and con.'cerning the plaintiff, the statements contained in the article in connection with the subsequent allegations of the plaintiff show, to .the contrary, so that the plaintiff has pleaded himself out of court; that what was'said in the article concerned the man in prison,, who, in fact, was not the plaintiff, and, therefore, the article could not refer to him; that but one person was referred to.

This conclusion does not necessarily follow. For if it is true, as is contended by the plaintiff, that the article intended to charge, and it was so understood, that the person then in prison was the plaintiff, it ■ cannot be said that it was not published of and concerning him.

A like question arose in the case of Palmer v. Bennett (83 Hun, 220). In that case an article contained an account'of an intoxicated tramp who was arraigned in the Police Court and gave his name as Edward E. Palmer. This was published with the statement that El ward E. Palmer was for several years president of the Be Kalb Avenue railroad in Brooklyn, and was at one time .president of a bank in that city, and a resident of Be Kalb avenue.

In the action for libel it was shown that the plaintiff’s name was Thomas Palmer ; that he had been president of the Be Kalb Avenue railroad-for eight years and was the only person by the name of Palmer who had been president of it; that he had resided on Be Kalb avenue for twenty-three years.

It was there argued, along the same line as is argued here, that the article referred to the Palmer in prison and not to Palmer, the plaintiff. Hr. Justice Cullen, in disposing of. the defendant’s claim adversely to the defendant, says (p. 221): “The first point urged against this recovery is that the libel did not refer-to the plaintiff, but to Edward E. Palmer, the person arrested, and that the court erred in submitting that question to the jury instead of dismissing the complaint. We do not understand the defendant to contend that it was necessary that the plaintiff should have been named, or that it.-was not sufficient that the description or reference in the libel should identify him. That such is not the law is well settled. (Townshend on Libel, §§ 131, note, 543 ; Sumner v. Buel, 12 Johns. 475.) But his claim is that the article was published of the prisoner, Edward E. Palmer, and that of him the libelous portion of the article was true. In a sense this is correct.- The article was published of that Palmer, the prisoner, but it does not follow that it might not reflect upon-others. If false, it contained a libel on Edward E. Palmer, because of the charge of his vagrancy and arrest. But when the article charged the identity of the plaintiff and Edward E. Palmer, .there was then a libelen the former-. If it is affirmed that A. and B. are the same person, and that B. has committed an offense, it is thereby necessarily affirmed that A. lias committed the offense. If A. and B. are in fact different persons, ■ and the charge made is false as to both, .then there is a libel on "each ; • if" false as to either, then there is a libel on the one who is innocent. The evidence fully justified the submission to the jury of the. question whether the. article referred to the plaintiff as well as to the man arrested, and the motion to dismiss the complaint was properly denied.” -

We do not think that the facts in this case come within the rule-of Fleischmann v. Bennett (87 N. Y. 231) and Corr v. Sun Printing & Publishing Assn. (177 id. 131), ..but rather within the facts in the eases of Nunnally v. New-Yorker Staats-Zeitung (111 App. Div. 482) and Nunnally v. Tribune Association (Id. 485), both of which cases have been, affirmed in the Court of Appeals (186 N. Y. 532, 533), and where it was held that the complaint was sufficient, and the demurrer thereto was overruled.- -'■ -"The interlocutory judgment overruling the demurrer should be Affirmed;- with costs, with leave to plead over upon the usual terms,

All concured, except McLennan, P. J., and Nash, J., who dissent upon the dissenting opinion of Nash, J., in Soper v. Butler (115 App. Div. 818), decided herewith.

• Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over upon payment: of the costs of the. demurrer and of this appeal. 
      
       See Town. Sl. & Lib. (4th ed.) §§ 131, 343, note 2.— [Rep.
     