
    Florence Nunnally, Appellant, v. New Yorker Zeitung Publishing and Printing Company, Respondent.
    First Department,
    January 11, 1907.
    Libel — partial defense not pleaded as such demurrable — allegation that article'was published of and concerning the plaintiff.
    When a publication not. naming the plaintiff, but alleged to have been printed of and concerning her, contains accusations of murder, robbery and illicit relations with the person murdered, defenses not set out as partial defenses nor in mitigation, which do not in any way justify the charges of murder or robbery, are had on demurrer,■ although they may justify the accusation of illicit relations.
    Although no specific person is named in such article as guilty of the offenses charged, the plaintiff may allege that it was published of and concerning her, arid the complaint is good, as under such allegation direct proof may be made that she was the person referred to.
    Houghton, J., dissented, with memorandum.
    Appeal by the plaintiff, Florence Nunnally, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of July, 1906, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrers to the fourth and fifth defenses of the amended .answer.
    
      George H. D. Foster, for the appellant.
    
      Benno Loewy, for the respondent.
   Patterson, J.:

This appeal is from an.interlocutory judgment overruling demur rers to the fourth and fifth defenses setup in the amended answer in this action, which was brought to recover damages for_an alleged libel printed in'a newspaper belonging to and circulated by the defendant. The article was printed in the German language and what appears to be a translation of it is annexed to the complaint. It begins with head lines^printed in large type: “ Dying Man Makes' Accusation. Why Did Melles Die ? Blamed Shortly Before His Death a Woman. Was it Poison or Alcohol? Coroner Scholer Of The Opinion That There Must be a Crime Behind It.” The article' then proceeded to state: “ The police have once again a case for elucidation before them, which is surrounded by suspicious circumstances, as to who is-'responsible, for the death of the theatrical agent Leon Melles.” It proceeds further to state that Melles died, in the .opinion of a Doctor Buffum, “from the effects of poison, apparently a mixture of' chloral and cocaine, which was given to him as ‘knockout drops.’ A half hour before-his death he cried out, ‘ Take that woman away from me. She has doné it,’ Then again he called, ‘ I wish to see that woman — she is responsible for this ’— and during his death struggle he cried: ‘ There she is again ’ and threw up his hands, as if he wished Jo ward off a blow. * * * Shortly before his last gasp he gave the name and address of a young woman with whom he had been intimate for a year, as he him- - self and his father explained. Her' identity is not made known by the police and the coroner, and it is said only that she is employed in a wholesale house downtown.” It further states that “ in a lucid moment Melles said : ‘The last thing which lean remember is, that I Was with the woman in my room in 28th street.’ ” And further, that “ After Coroner Scholer had heard the statements of Di'. Buffum, of the father and of the two sisters of the dead man, he came to the conclusion that there must be more behind the matter than-the accu-

sation made against the girl. The contradiction resulted from it, that the sweetheart, according to all testimony, was very devoted, but that he, nevertheless, had been robbed of his watch and his money when he came early yesterday to his father’s home, where he arrived, apparently intoxicated, about 3 o’clock.” Early in the morning, after the return of Melles, his father was awakened by his son groaning and sighing, and found him dying. He sent for Dr. Buffum, who diagnosed the case as one of narcotic poisoning, and gave him a sedative. * * .* Twice yesterday a woman’s voice called up Mr. Melles on the telephone, and asked him whether Leon had arrived home safe. When she was told in the afternoon that he was in a very critical condition she said that she would call on him in the evening. A policeman waited for her appearance, but she did not appear, nor did she use the telephone again.”

Although her name is not mentioned, the plaintiff indices the allegation that the alleged libel was printed of and concerning her. It contains accusations of murder and robbery. It also indicates that Melles and the plaintiff had illicit relations with each other. The fourth and fifth defenses interposed in the answer contain long and elaborate statements, which are, perhaps, sufficient as pleading matter in justification of the charge of unchastity of the plaintiff; but they do not in any way justify the charges of administering poison or of robbery. These defenses are not set up .as partial defenses, nor in mitigation. They must be regarded as having been general .defenses in justification. Their insufficiency as such is not open to discussion in this court. It was held in Nunnally v. Mail & Express Co. (decided June 15, 1906, 113 App. Div. 831) ; that where in an action of libel a defense is pleaded as a separate 'and distinct defense and does not go to the whole cause of action, but is merely partial, such defense is not good on demurrer, and for that reason the interlocutory judgment overruling the demurreis in the present action was wrong.

It is claimed, however, that the demurrers were properly overruled because the complaint was demurrable, and that upon demurrer to an answer the defendant may attack the sufficiency of the complaint. Applying that rule, we think the complaint was sufficient. Its allegation that the article complained of was published of and concerning the plaintiff, although her name was not mentioned, was sufficient. (Nunnally v. New-Yorker Staats-Zeitung, 111 App. Div. 482; affd., 186 N. Y. 532.) The matter complained of here is substantially the same as that in the' cáse cited and is libelous per se. The plaintiff alleges that it was written -of and concerning her, and in connection with that allegation she may make direct proof that she was the person to whom reference was made. The ease last cited was not decided upon the allegation contained in the complaint therein that the plaintiff was discharged from her employment by reason of the publication in the New-Yorker Staats-Zeitung. It was said in the opinion, that assuming that the libel was so general in its character that'it might apply to any of a great number of persons, and was- only made to relate to the particular plaintiff by adoption of it as applicable to herself, that then the complaint contained a sufficient allegation to show its direct application to her.

The interlocutory judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to amend the fourth and fifth separate defenses (if it is so advised) within twenty day's from service of a copy of the order to be entered upon*this decision, upon payment of costs in this court and in the court below.

Ingraham, McLaughlin and Clarke, J J., concurred ; Houghton, J'., dissented.

Houghton, J. (dissenting):

I dissent on the ground that the answer sets forth a justification at least of the charge of meretricious relations with Melles, and is sufficient in law on demurrer.

Judgment reversed,, with costs, and demurrer sustained, with costs," with leave to defendant to amend on payment of costs in this court and in the court below. Order filed.  