
    Ada Olive Van Heusen, Respondent, v. De Mercy Argenteau, Sued as Jane Doe, Appellant.
    First Department,
    March 13, 1908.
    Libel — complaint—application of defamatory matter to plaintiff.
    Although an article libelous per se does not' identify the -person libeled, it is unnecessary to allege in the complaint any extrinsic fact for the purpose of Showing its application to the plaintiff where the complaint contains, an allegation that the defamatory matter was published of and concerning the plaintiff and contains no allegations which would exclude proof of any fact tending to identify the plaintiff as the person libeled.
    Houghton, J., dissented, with opinion
    
      Appeal by the defendant, De Mercy Argenteau, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of November, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint, upon the ground that it fails to state facts sufficient to constitute a cause of action.
    
      Robert Avery, for the appellant.
    
      Henry M. Ward, for the respondent.
   McLaughlin, J.:

I think the article complained of is libelous per se. It tends to disgrace or bring into ridicule and contempt the person to whom it relates. (Morey v. M. J. Assn., 123 N. Y. 207; Stokes v. Stokes, 76 Hun, 314.) It does not identify the plaintiff- as-the person libeled, but the complaint alleges.it was published of and concerning her. Being libelous per se and not identifying the person libeled, it was unnecessary to allege in the complaint “ any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter,” inasmuch as the allegation was that it was published of and concerning the plaintiff (Code Civ. Proc. § 535), which is a fact admitted by the demurrer.

It appears on the face of the complaint that evidence may be given by the plaintiff which will show that she was the person referred to in the publication. As a pleading this is all that is required, where it is charged that the matter was published of and con cerning her. This was the rule laid down in Nunnally v. Tribune Assn. (111 App. Div. 485), Mr. Justice Páttebson saying: “But we conceive the rule to be, under the Code, that where it appears on the face of a complaint that evidence may be given by a plaintiff which will undoubtedly connect him with the alleged libelous matter, such a complaint is sufficient where it charges that the matter was published of and concerning him.” That case went to the Court of Appeals and the judgment was affirmed on his- opinion (186 N. Y. 533). The case has since been followed by the fourth department in Soper v. Associated Press (115 App. Div. 815; affd., 188 N. Y. 550).

The Complaint should be liberally construed. (Morrison v. Smith, 177 N. Y. 366; Martin v. Press Pub. Co., 93 App. Div. 531.) At the trial the plaintiff may be able to prove- that the- article was' published of and concerning her ; that she had a dog -at, the- show in the same class with the dog Chin Ghino and was the- only other person who did' have a dog in that class; that she was the person who discovered on-the last-day of the show that there was dye .on the coat of the dog Chin Ghino and that she had an opportunity to put this dye On ; and the disqualification of that dog Was to her advantage because-it enabled her dog to take the prize. If such proof be offered, can there be any question but that it.Would be admissible under the complaint, and if admitted and not contradicted, would it not justify the jury in finding defendant liable ? The. plaintiff, as it seems to me, is entitled, by express provision of the section of the Code aboye cited, to .prove the: facts suggested and others if - she can, without alleging them. Such facts simply show' the. application of the libelous matter to her ; they identify the object of the libel by showing that she-' is the only person to whom the article could have referred. (Weston v. Commercial Advertiser Assn., 184 N. Y. 479.)

-This complaint' is not like those in Fleischmann v. Bennett (87 N. Y. 231) and Corr v. Sun Printing & Pub. Assn. (177 id. 131). In the complaints in those cases there were allegations which showed tliat the libelous matter did not relate to the plaintiffs; in other words, in the complaint in each case facts were pleaded which showed that the plaintiff was hot the person referred to m the' article complained of. The pleading now before us is different. There are no allegations in the -complaint' which .would; exclude proof,Of any'fact tending to identify the plaintiff as the.person at. whom the libelous article .was directed.

I any of the opinion that the complaint states a good cause of action; that the demurrer was properly overruled and"the judgment ■appealed from should be affirmed, with costs, with leave to the defendant to.withdraw demurrer and to answer on payment of costs in this court and in the court below.

Patterson,. P-. J.,, Laughlin and Scott, JJ., concurred; Houghton, J., dissented.

Houghton, J. (dissenting) :

The defendant wrote a letter to a periodical called Field cmd Fancy, which the plaintiff alleges to have been libelous per se as to herself.

The published letter withinnuendo that the various charges referred to plaintiff is set forth in the complaint to which the defendant demurred, and is addressed to the editor of the periodical and relates to the disqualification of a dog because his hair was found to have been dyed, owned by the defendant and entered at a competitive dog show. After referring to a previous communication on the subject which exonerated the defendant from guilty knowledge' of the act, it is suggested that it is a subject for investigation by the Kennel Club, and that it should inquire “Who dyed the dog? — a question that can be answered by ascertaining who had interest in having the dog dyed and disqualified. Has, or is there any one who would profit by the disqualification of the dog Chin Chino ? If so, whom ? Who was it that discovered on the last day of the show, and three days after the judging of the Chow classes, that there was dye on the coat of the dog ? And had the person who made this discovery an opportunity to put the dye on the dog ? And was the dog’s disqualification in any way to the benefit of the person ? A crime was committed. The motive is plain. Who was it that had such á motive?”

Ho extrinsic facts are alleged in the complaint showing that the plaintiff had anything to do with the dog show either as manager or as one of the judges, or as one of the exhibitors; or that she was in any way connected with it so that any one knowing the situation, on reading the article might infer that it referred to herself, or that the derelictions mentioned in the article might be attributed to her. Assuming that the article is libelous per se in that it attributes disreputable conduct to some one, nothing is plead to show that it referred to plaintiff, or could refer to' her, or that any one could think it referred to her; and nothing is contained in the article itself indicating that the charges were made against plaintiff.

A person cannot attribute to himself a libel which is published of the community at large. There must be something in the article itself referring to him individually, or to a particular group of individuals of which lie is a part, or it must contain some descriptive statements with which lie can identify himself by .proof, and thus show that that article referred to him, or he-must be so identified with the situation or subject-matter referred to in the article that, upon showing his relation to them, it can be fairly assumed that the article referred to him. . .

Unless some one of these elements appear'in the alleged libel, a. simple: allegation that the article was published of and concerning the plain tiff is insufficient, notwithstanding the provisions of section 535 of the Code of Civil Procedure, (Corr v. Sun Printing & Pub. Assn., 177 N. Y. 131; Hauptner v. White, 81 App. Div. 153; Weston v. Commercial Advertiser Assn., 184 N. Y. 479; Nunnally v. Tribune Assn., 111 App. Div. 485; affd. on opinion below, 186 N. Y. 533.) In Nunnally v. Tribune Assn. (supra) this rule was recognized, but it was held that in the article itself there were descriptive statements by which the plaintiff. was easily identified as the person concerning whom the libel was published.

Tested by these miles, I think the complaint failed to -state .a cause of action, a-nd.the demurrer should have been sustained. .

In my opinion the interlocutory judgment overruling the-demurrer should be reversed.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  