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Rivers v. New York Evening Journal Publishing Co.

120 A.D. 574 Court Second Department, Decision date 1907-06-07 English

Delivered by Jenks, J.:

Contents

Majority

p. 574
Martha L. Rivers, Respondent, v. The New York Evening Journal Publishing Company, Appellant.
Second Department,
June 7, 1907.

Headnote

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. -
p. 575
Clarence J. Shearn, for the appellant.
Melville J. France, for the respondent.

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 :

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.

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