Wellman v. Sun Printing & Publishing Co. — 50 N.Y. St. Rep. 254

Majority

p. 254

George F. Wellman, App'lt, v. The Sun Printing & Publishing Co., Resp't.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

1. Libel—Publication concerning plaintiff’s deceased wife.

A publication in a newspaper to the effect that plaintiff’s wife died under circumstances which aroused his suspicions that she had caused her own death by procuring a miscarriage, solely affects the deceased, and is a personal wrong which Hied with her.

2. Same—Pleading—Demurrer.

Á mere statement in the complaint that the article was published of and concerning the plaintiff, does not, under the principle that a demurrer admits the complaint, make out a cause of action.

Appeal from order sustaining demurrer to the complaint.

A. J. Moore, for app’lt;

Franklin Burtlett, for resp’t.

The complaint states that Sophia Wellman, the plaintiff’s wife, died under circumstances which aroused her husband’s suspicion that she had caused her own death by procuring a miscarriage upon her person. The article states that the plaintiff was a lawyer. The complaint states that the article was published to injure the plaintiff. No cause of action is stated in favor of the plaintiff. The injurious publication solely affects the deceased lady, and is a personal wrong which died with her. Cregin v. Brooklyn, etc., R. R. Co., 75 N. Y., 192 .

There is an allegation that the article was published of and con

p. 255

cerning the plaintiff. No libellous statement against him is made in it. The mere statement in the complaint that the article was published of and concerning the plaintiff does not, under the principle that a demurrer admits the complaint, make out a cause of action. Fleischmann v. Bennett, 87 N. Y., 231 .

The facts stated are at variance with this allegation. The libel is upon the wife. The libel is not supported by reason of the plaintiff’s professional character being injured by the libel. No charge is made against the professional character of plaintiff, and no legal reason exists why the plaintiff, as a lawyer, should be injured by it

The order sustaining the demurrer should, therefore, be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.