
    Bert L. Carpenter, Appellant, v. Glens Falls Post Company, Respondent.
    Third Department,
    November 11, 1914.
    Libel — pleading — change of common-law rule by section 535 of the Code of Civil Procedure — complaint — variance between name of plaintiff and name used in alleged defamatory article.
    Section 535 of the Code of Civil Procedure, changing the common-law rule concerning pleadings in libel and slander, requires the plaintiff to state that the defamatory matter refers to him, but he need not allege extrinsic matter to show that his conclusion is correct. If, however, he pleads matter which shows that the article does not relate to him, he contradicts his direct assertion.
    Where a complaint sets forth an alleged libelous article and asserts that the defendant maliciously published the same concerning plaintiff, the mere fact that the plaintiff says his name is “Bert L. Carpenter,” whereas the name used in the article is “ Sam Carpenter,” is not a contradiction of the assertion that the article was published concerning the plaintiff, and, hence, a judgment dismissing the complaint should be reversed and a new trial granted.
    Kellogg, J., dissented.
    Appeal by the plaintiff, Bert L. Carpenter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 10th day of June, 1914, upon the dismissal of the complaint by direction of the court at the opening.
    
      
      John Van Valkenburgh [Walter A. Chambers of counsel], for the appellant.
    J. Edward Singleton, for the respondent.
   Howard, J.:

This is an action for a libel. Before the evidence was taken, upon motion of the defendant, the complaint was dismissed upon the grounds that it did not state a cause of action. The alleged libelous article is as follows:

“ officer’s bullet stops auto thief
“ Chief ‘ Buffalo ’ of Fort Edward Fires Shot Into Tire “chase of several miles
“ Copper Starts off in Pursuit in Another Car — Stolen Machine Owned by Hudson Falls Man.
“After an exciting chase of several miles, Chief Kennedy of Fort Edward rose in his seat in an automobile cab and shot a hole in the rear tire of the fleeing Overland car owned by William Walling of Hudson Falls and which, it is alleged, was stolen from in front of the Kingsbury club at 9 o’clock last evening by Sam Carpenter, one of Hudson Falls’ most notorious figures in police circles. Unable to continue further at a great rate of speed, the fugitive stopped the machine and gave himself up. The capture was effected at a point near Fort Miller and within a few hours after the theft. Carpenter was returned to Hudson Falls at 1:45 o’clock this morning and lodged in the village bastile. He will be arraigned this afternoon. Carpenter, who was much the worse for drink, jumped into the car, it is alleged, and started off without being detected. Reaching Main street he turned in the direction of Fort Edward. The loss of the car was discovered shortly after 9 o’clock and Officer James Harding of Hudson Falls was notified. He at once got into touch with the Fort Edward officer, who after investigation found that the man had passed through Fort Edward. He then hired an automobile and set out in his chase which eventually resulted in a capture as related above. ”

The rule of the common law concerning pleading in libel and slander was changed by section 535 of the Code, "so that it is unnecessary now for the complaint to state any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter. All that the plaintiff is required to do under that section, after alleging the defamatory matter, is to state generally that the article was published or spoken concerning him. This section requires the plaintiff to state that the defamatory matter refers to him, but he need not allege extrinsic matter to show that his conclusion is correct. Of course, if he pleads matter which shows that the article does not relate to the plaintiff, he contradicts by extrinsic facts his direct assertion that the article does relate to the plaintiff. That was what occurred in Fleischmann v. Bennett (87 N. Y. 231) and in Corr v. Sun Printing & Publishing Association (177 id. 131). To use Judge Vann’s expression, the plaintiff in each of those cases “pleaded himself out of court.”

In this case before us the plaintiff asserts that the defendant “maliciously published concerning the plaintiff” the article in question. Nowhere in his complaint does he make any statement Of facts which contradicts this allegation. The mere fact that he says his name is Bert L. Carpenter, whereas the name used in the defamatory article is Sam Carpenter, is not a contradiction of the assertion that the article was published concerning the plaintiff. Fleischmann v. Bennett and Corr v. Sun Printing & Publishing Association (supra) in no wise conflict with our view here, for if a plaintiff alleges that he has a cause of action, and then alleges facts which show that he has no cause of action, as was the case in the above citations, his complaint must be adjudged bad. But no such defect is to be found in the pleading before us. The provisions of section 535 of the Code of Civil Procedure are so plain and unambiguous that no “construction” of the section is necessary; and the plaintiff complied with it so completely and literally in this case that to hold the complaint unsound would amount to its utter abrogation. (Nunnally v. Tribune Association, 111 App. Div. 485.)

The judgment appealed from should be reversed, with costs.

All concurred, except Kellogg, J., dissenting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  