
    Walter N. Lawrence, Respondent v. The Sun Printing and Publishing Association and Acton Davies, Appellants.
    First Department,
    December 30, 1909.
    Iiibel — pleading—complaint — identity of persons — allegation that libel was! published of and concerning plaintiff.
    Where the complaint in a libel action sets forth an article stating that a certain play was presented by-the “Walter hi. Lawrence Company ” and later mentioning a-“Mr. Lawrence,” but there is no allegation that the alleged libelous matter was published concerning the plaintiff, or that the plaintiff is the person to whom reference is made, a demurrer thereto will be sustained.
    Identity of surnames is-insufficient to raise a presumption that the. persons referred to are the same.
    Alleged libel examined, and held, that the article was not libelous perse as against the plaintiff, even if he could show that he was the person referred to.
    Appeal by the defendants, The Sun Printing and Publishing Association and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
    
      James M. Beck [Frederick W. Jackson with him on the brief], for the appellants.
    
      Albert P. Massey, for the respondent.
   Laughlin,. J.:

This is an action to recover damages for án alleged libel. The complaint contains no allegation in form or substance as required by the provisions of section 535 of the Code of Civil Procedure, to the effect that the libelous matter was published concerning the plaintiff, nor does it contain any allegation in any manner tending to identify the plaintiff as the person therein referred to. The alleged libelous article was published under the heading “ Hews of the Theatres,” and it relates to a play known as “ The Best Man,” which it states is the same as the play known as “ The Man in the Case.” It is stated in the article that the play was presented by the “ Walter H. Lawrence Company (incorporated).” The article then refers to a Mr. Lawrence,” but it is neither therein stated, nor is it alleged in the complaint that his given name was “ Walter H.,” or that he is the Mr. Lawrence after whom the company was named. In the absence of an allegation in conformity with the provisions of said section 535 of the Code of Civil Procedure, we are of opinion that it is essential that the complaint should show that the plaintiff is the person to whom reference is made in the alleged .libelous article. (Miller v. Maxwell, 16 Wend. 9; Tyler v. Tillotson,2 Hill, 507; Croswell v. Weed, 25 Wend. 621. See, also, Nunnally v. Tribune Association, 111 App. Div. 485; affd. on opinion below in 186 N. Y. 533.) It may be that the presumption which obtains with respect to questions of ownership of property that identity of names is prima, facie evidence that the individuals are the same (Hatcher v. Rocheleau, 18 N. Y. 86) would obtain in an action for libel if the full names are identical, but that it is unnecessary to decide, for, as has been observed, there is no allegation in the complaint or statement in the alleged libel that tlie Lawrence therein referred to is either .the Walter N. Lawrence after whom the company was apparently named or the plaintiff, and in any view it is perfectly clear that identity of surnames is insufficient.

We are also of opinion that if the complaint were sufficient to enable the plaintiff to show that he is the Mr. Lawrence who was the manager of the company, still the article would not be libelous per se against him. The article states that the play was presented at Boston, and that Mr. Lawrence “has not been near .the production; ” that the • play was lacking in “ properties, the money to procure them had to be borrowed from the mother of a member of the cast; ” that the play made money the first-week and if it had not been for a hot wave which prostrated Boston it might have continued to be suecessful, but that at the end of the second week the business managér “after frantically telegraphing without avail to Mr. Lawrence,” was obliged to tell the company that their salaries could not be paid, and that their fares to New York could not be paid. It then alludes to the different members of the cast, and to the manner in which they received the news, and states thjit the “episode will offer the Theatrical Managers’ Association a fine chance to right the wrongs of these actors, for one of the‘principal reasons of its organization was to prevent just such occurrences as this Boston episode.” The article may be libelous on the company presenting, the play, but that is a question which .is not now presented for decision. Whatever the connection of Lawrence with the play may be it is not stated, and, therefore, the article is not a libel on him.'

It follows that the interlocutory judgment should be reversed and the demurrer sustained,, with costs, but with leave to plaintiff to amend on payment of .the costs of the demurrer and of the appeal.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Judgment reversed,' with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  