
    Ava Belle Knickerbocker, an Infant, by William W. Knickerbocker, Her Guardian ad Litem, Appellant, v. Press Publishing Company, Respondent.
    Second Department,
    February 24, 1911.
    Libel — pleading — complaint — office of innuendo — publication not relating to plaintiff.
    Where the main allegations in a complaint for libel show that the plaintiff was not the person of whom the libelous matter was published, she does not allege a cause of action by using an innuendo stating that she is the person to whom reference was made.
    Where plaintiff, a girl of eighteen years, in an action for libel alleges that the defendant in connection with an article published by it, relating to the finding of homes for foundlings and destitute children through the efforts of its paper during the preceding month, printed several photographic reproductions of babies, among them a picture of plaintiff, taken fifteen years before, with the words “Homeless Children Sent to Childless Homes” beneath and seeks by innuendo to connect herself with the allegations of the article, although there were no names beneath the pictures and the plain purport of the news riiatter and illustrations is that the photographs were those of babies adopted within the past month as a result of the paper’s efforts, the defendant who has interposed an answer is entitled to judgment on the pleadings, it appearing from the complaint that the alleged libelous matter did not and could .not refer to plaintiff.
    Appeal by the plaintiff, Ava Belle Knickerbocker, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 25tli day of May, 1910, and also from a judgment in favor of the defendant entered in said clerk’s office on the same day pursuant to said order.
    
      William H. Freeman, for the appellant.
    . Howard Taylor [John G. Jadkson with him on the brief], for the respondent.
   Carr, J.:

This is an appeal from an order directing judgment for the defendant on the pleadings and from the judgment entered thereon. The action was brought by a young lady of the age of eighteen years, through a guardian ad litem, to recover damages for an alleged libel published by the defendant in the city of New York in its newspaper The World, on the 4th day of April, 1909. The alleged libel consisted of the publication of a number of photographs of babies under a printed heading as follows: “World’s Story Promptly Finds Good Homes with Loving Foster Parents for These Little Children.” Immediately beneath this heading were grouped seven photographic reproductions of a number of babies and very small children. Beneath this grouping were the words, “ Homeless Children Sent to Childless Homes.” The illustrations were accompanied by news matter purporting to describe the work of the New York Infant Asylum, the origin of its inmates and the supposed fact that the publication in The World on March 7, 1909, of a story relative to the adoption of a small boy called “ Bobbie Ely ” or “ ¡Robert Scheffer Ely ” had led to large demands upon the New York Infant Asylum since March 7,1909, for the adoption of foundlings or destitute children into good families and good homes. The plain purport of the illustrations and news matter in the publication of April 4, 1909, was that the photographs there printed were those of babies so adopted since March 7, 1909, as a result of the publication, on that date, of the story as to the adoption of “ Bobbie Ely.” The plaintiff seeks to charge the defendant with libelous charges against herself in the following manner. The news article of April fourth describes the origin of the inmates of the foundling asylum as follows: “ Children who become wards of the asylum have various origin. Every year from 250 to 300 infants are taken to Bellevue by the police. They come from areaways, from doorsteps, from under the rose bushes in the park; there are places where babies may be checked and mothers fail to call for them; sometimes they are abandoned in baby carriages on the sidewalk in the shopping districts. Half of these waifs are baptized Catholics and delivered to Catholic societies, and the others are baptized Protestants and go to the New York Infant Asylum at Amsterdam avenue and Sixty-first street. The poor furnish another source of supply. One or both parents may be ill, the man may be out of work and poverty pinches, or a woman alone with children may get work to help support them if she may be relieved of their care.” This language the plaintiff attempts to connect with herself by alleging that one of the photographs accompanying the news matter was that of herself when she was a child of the age of two and one-half years. Therefore she claims that, although when the publication was made she was a young lady of eighteen years, she was in fact described as having been adopted as a baby from the Hew York Infant Asylum between March 7 and April 4, 1909. By innuendo she seeks to connect with herself every statement of the news article of April 4, 1909, sometimes in a manner not lacking in humorous aspect, as for instance as follows: Half of these waifs (meaning the plaintiff) are baptized Catholics and delivered to Catholic societies, and the others (meaning the plaintiff) are baptized Protestants and go to the Hew York Infant Asylum,”, etc. The defendant moved for judgment on the complaint, on the ground that it appeared from the allegations thereof that the alleged libelous matter did not and could not refer to the plaintiff, and hence no cause of action was stated therein in her favor. The learned trial court sustained this contention and granted the motion.

It is well settled law, in this State, that where, in a complaint in an action for libel, the-main allegations thereof show that the plaintiff was not the person of whom the libelous matter was published, the plaintiff does not state a cause of action simply by using an innuendo that he was the person so referred to. (Fleischmann v. Bennett, 87 N. Y. 231; Corr v. Sun Printng & Publishing Assn., 177 id. 131; Fagan v. New Fork Evening Journal Publishing Co., 129 App. Div. 28.)

As the complaint here alleges that at the time of the publication she was a young lady of eighteen years of age residing with her parents, it seems quite plain that language describing the origin of young babies and small children then in or then adopted from a foundling asylum in the specified period between March 7 and April 4, 1909, did not and could not refer to her. It is claimed, however, that the use of the photograph distinguishes the case at bar from those shown in the authorities above cited. To establish this distinction the appellant relies largely upon the decision in De Sondo v. New York Herald Co. (88 App. Div. 492). In that case a news- , paper published .a news article with a heading as follows: “Musolino, the Famous Italian Brigand, Coming to America, But Hot, He Says, Until His Bevenge is Complete.” Then followed other similar headlines of the same character. As a part of this article was published a photograph of a man described as Musolino by the printing of his name immediately under it. This photograph was that of the plaintiff'De Sando, an Italian-who resided in Hew York. The news article in question referred to “ his portrait, which we print with this article” as being a recent photograph and the only one known to be in existence in this country. The article likewise stated that “Musolino is still in Italy.” It was held in that case that the printing of De Sando’s photograph with the name of Musolino underneath it as the name of the original of the photograph, together with accompanying news matter which directly described the photograph as that of Musolino, was a libel on De Sando by attributing to him, through the use of his photograph, the qualities of Musolino, the Italian brigand. The facts of that case are sharply distinct from those here involved, and the facts there presented control the scope of the court’s opinion. There the photograph was distinctly labeled as that of Musolino, and the article in which it appeared described in large headlines Musolino as an Italian brigand who was coming to America. Any one reading those headlines and looking at the photograph labeled as that of Musolino would be entitled to consider it as of the brigand Musolino and thus work to the disadvantage and harm of De Sando. In the case at bar there are no libelous headlines or labels accompanying the photographs. If one seeks for libelous matter he must find it, if at all, in the news article. It is true that the photographs are connected with the news matter by appropriate references, but these photographs are described as being of infant children adopted from the Hew York Infant-Asylum between March 7 and April 4, 1909. Ho one by looking at the photograph and reading the news matter could in any way infer that the plaintiff, then a young woman of eighteen years of age, had just been adopted as an infant from the asylum. Assuming the photograph of one of these small children to be a likeness of the plaintiff when she was less than three years of age, it was not a likeness of her when she was eighteen years of age, when the alleged libelous matter was published of and concerning some person who was a little baby at the time of the publication. We can well understand that the plaintiff and her family may have been pained by the publication of a photograph which was a likeness of the plaintiff some sixteen years previous in the interesting and attractive days of her babyhood, but we fail to see in such publication any libel on the plaintiff.

The order and judgment should be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred.

Order and judgment affirmed, with costs;  