Corr v. Sun Printing & Publ'g Ass'n

• Decision Date: 05 January 1904
• Citation: 69 N.E. 288,177 N.Y. 131
• Court: New York Court of Appeals Court of Appeals
• Parties: CORR v. SUN PRINTING & PUBLISHING ASS'N.

177 N.Y. 131

69 N.E. 288

CORR

v.SUN PRINTING & PUBLISHING ASS'N.

Court of Appeals of New York.

Jan. 5, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Kate Corr against the Sun Printing & Publishing Association. From a judgment of the Appellate Division (78 N. Y. Supp. 1112) affirming a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The complaint alleges, in substance, that the plaintiff is 26 years of age, unmarried, and a resident of the borough of Brooklyn, and was and is a teacher by occupation, employed in one of the public schools of that borough, and until the publication of the libel had always borne a good character and reputation. The complaint then sets up the incorporation of the defendant, and its ownership of the newspaper in question, the Sun. It then alleges that on the 14th day of August, 1901, the said defendant wantonly, falsely, wickedly and maliciously, with intent to injure and destroy the good name, fame, and reputation of the plaintiff, and to cause it to be believed that the plaintiff was guilty of the larceny and felony in the libel described, and was a notorious woman of bad reputation, composed, printed, and published in said newspaper, in the regular edition thereof, of and concerning the plaintiff, and distributed and circulated the same widely and at large throughout said city, state, and elsewhere, the following false, scandalous, defamatory article and libel, to wit. (The alleged libel is then set forth in full.) It further alleges: ‘That by reason of the premises, the plaintiff has been damaged and injured in her character and reputation, and held up to public scorn, infamy, and disgrace, and has suffered and will continue to suffer great mental pain and anguish, to her damage in the sum of twenty-five thousand dollars.’ Judgment is thereupon demanded.

The material portions of the alleged libel are as follows: ‘Cop Charmer in Trouble-Woman who Infatuated Many Policemen Held on Charge of Stealing a Watch. Thomas H. * * * a commission merchant of * * * Brooklyn, was in a closed Myrtle avenue car on his way home at two o'clock yesterday morning, when a good-looking and well-dressed woman, who had got on the car with a young man, asked him the time. Thomas H. * * * told her, replaced his gold watch into a waistcoat pocket, and fell into a doze; he missed his watch, and prevented the woman from leaving. The man who was with her disappeared. Thomas H. * * * told the conductor to call a policeman, but he refused, and the commission merchant kept guard over the woman until the car reached the borough line at Ridgewood, where Policeman Mahland took both to the Hamburg Avenue Station. Thomas H. * * * insisted on making a complaint, and the woman was held on the charge of grand larceny. She gave her name as Kate Losee, and said she lived at 195 Hamburg avenue. The police recognized her as Kittie Carr, the daughter of a former Brooklyn detective. Several years ago many policemen were infatuated with her. One, who belonged to the old police station at Flushing avenue and Whipple street, Williamsburgh, blew out his brains in the station; another became insane; a third drank himself to death. The woman dropped out of sight about three years ago. Magistrate O'Reilly, after hearing Thomas H. * * * story, held the prisoner in five hundred dollars bail. The woman is about thirty-five years old.’

Vann and Martin, JJ., dissenting.

James Troy and Thomas H. Troy, for appellant.

Franklin Bartlett, for respondent.

BARTLETT, J.

The plaintiff seeks to recover damages for an alleged libel published in the defendant's newspaper, known as the Sun, printed and published in the city of New York. The defendant interposed a demurrer to the complaint, on the ground that it appears upon the face thereof it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, with leave to the defendant to answer on terms which were not accepted, and the complaint was dismissed. The Appellate Division affirmed the final judgment duly entered. The question involved in this appeal is the proper construction to be given section 535 of the Code of Civil Procedure, which reads as follows: ‘It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. * * *’ We are of opinion that the complaint in this case brings it within Fleischmann v. Bennett, 87 N. Y. 231, which holds that, although the complaint contains the general words of section 535, the defamatory matter being published of and concerning the plaintiff, it does not aid him where this general averment is contradicted and rendered nugatory by other allegations. This court said: ‘As the libel neither describes nor refers to the plaintiff, nor to the business in which he was engaged, but names a different business, and a firm of which in a preceding portion of the complaint it is alleged he is not, and never was, a member, it is manifest that the plaintiff cannot in any way be connected with the libelous matter set forth. * * * There is no principle which authorizes the introduction of any such evidence, where, on the face of the complaint, it is clearly apparent that the libelous words do not relate to and have no connection with the plaintiff or his business as stated there in.’ In the light of this decision let us examine the libel and the complaint in the case at bar. The libel, in substance, charges that at 2 o'clock in the morning, on a Brooklyn street car, a woman about 35 years of age was charged with robbing a sleeping man of his watch; was arrested, and at the police station gave her name as Kate Losee, living at 195 Hamburg avenue, and was held in $500 bail; that the police recognized her at Kittie Carr, the daughter of a Brooklyn detective; that several years ago many policemen were infatuated with her-one blew out his brains; the second became insane; the third drank himself to death. We have here the description of a thief and an abandoned woman, abroad at 2 o'clock in the morning, robbing a sleeping passenger on a street car. The plaintiff comes into court and avers that this libel was published of and concerning her, and the question is whether this general averment is rendered nugatory by other allegations. The plaintiff alleges that her name is Kate Corr (not Carr); that she is 26 years of age (not 35); that she is a teacher by occupation, employed in one of the public school of Brooklyn, and had always borne a good character and reputation. The libel does not refer to Kate Corr; it describes a woman with a different name. It is doubtless true that an action for libel may be maintained where the plaintiff is not named, but is indicated by circumstances contained in the article which are capable of direct proof that the plaintiff was the person to whom reference was made. Many cases in the lower courts illustrate this situation, as, for instance, a plaintiff is referred to by his business, his place of business, his residence, and other facts, rendering it clear that he, and no one else, was referred to in the libel. In such a case section 535 of the Code applies, and it would be sufficient for the plaintiff to aver that the article was published of and concerning him; it would be unnecessary to allege in detail the facts essential to connect him with the libel. In the case at bar the libel clearly states the name of a woman who does not bear the name of the plaintiff; it portrays a woman who, years before, was known to the police as a notoriously bad character, at a time when this plaintiff may not have attained her majority, driving men to the insane asylum and the grave-a woman, in the language of the libel, who had ‘dropped out of sight some three years ago.’ We are of opinion that it appears upon the face of the complaint that the libel was not published of and concerning the plaintiff, and that the...