Martha L. Rivers, Respondent, v. The New York Evening Journal Publishing Company, Appellant.
Second Department,
June 7, 1907.
Libel — pleadings- facts, showing publication refers to plaintiff — publi- • , cation- stating woman is defendant in divorce action.
It-is not -necessary to allege in the words of section. 535 of the Code of Civil Procedure that the. defamatory words were published concerning the plaintiff if - from tl^e facts stated in the complaint it necessarily appears that such- was the case-.
To publish an- article falsely stating that a woman is-the defendant ini an action, for divorce which-could'only be brought on the .ground of. adultery, "is libelous per se.- ' ' ' .
When the complaint alleges that the defendant. was and still is the wife of one R. and that the article complained of referred tó E.’s “ suit- for divorce ” and -. speaks- of “his divorce complaint,” the- pleading is not subject to demurrer for failing to show that the defamatory words were published of and concerning the plaintiff.
Appeal by the defendant,, The-New York Evening Journal Bnblishing Compairty, from an interlocutory-judgment of the1 Supreme Court in favor of .the plaintiff, entered in the -office of', the clerk of the county of Kings on. the 7th day of Eebrtiafy, 1907, upon the • decision of the. court, rendered after a' trial at'the Kings1 County Special Term, overruling the defendant’s demurrer to the-complaint. -
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Clarence J. Shearn, for the appellant.
Melville J. France, for the respondent.
Jenks, J.:
We thinlc that this - judgment should be affirmed for the reasons stated by the learned justice who presided at tlie Special Term. We may add as authorities which sustain his conclusion Gidney v. Blake (11 Johns. 54); Dorland v. Patterson (23 Wend. 422, 424.)
The interlocutory judgment must be affirmed, with leave to the defendant to plead over upon payment of costs.
Woodward, Hooker, G-aynor and Rich, JJ., concurred.
Interlocutory judgment affirmed, with costs.
The following is the opinion delivered at Special Term :
Burr, J.:
It is not necessary to allege in the language of the statute (Code Civ. Proc. § 535) that the defamatory words were .published concerning the plaintiff if from the facts stated in the complaint it necessarily appears that such was- the case. (Jacquelin v. Morning Journal Assn., 39 App. Div. 515.) The article complained of referred to William Pitt Rivers’ “ suit for divorce.” If that had been all it might be uncertain who was-the plaintiff in said action, but in the same article it speaks of “ his divorce complaint,” showing that he was the plaintiff.
A man cannot sue any one for divorce but 1ns wife. The- complaint alleges that the plaintiff at the time of the publication was and still is the wife of William Pitt Rivers ; necessarily the article could refer to no other person than the plaintiff. To publish aii article stating that a woman is a defendant in an action for divorce which can only be brought upon the ground of adultery is libelous per sc. The demurrer must be overruled.