Opinion
December, 1905.
Clarence J. Shearn, for the appellants.
George A. McLaughlin [ Franklin D. Peale with him on the brief], for the respondent.
The defendants appeal from an interlocutory judgment overruling demurrers to a complaint which charges that they published of and concerning the plaintiff the following alleged libel:
"Wizard Inventor declares he will protect the name of `Edison' and pursue the men who misled his son with last dollar. Edison calls them crooks. He got into the hands of a lot of keen-witted adventurers. The name of `Edison' sounded like the chink of gold to those gold-brick men. Mind you, I'm calling them gold-brick men, and that's exactly what they are. They are crooks of the most dangerous pattern. I know every one of them. I have looked them all up. They have engineered schemes of all kinds; crooked schemes all of them."
The argument of the appellants is that the article contains no statement sufficiently descriptive of a particular person or class to enable that person or class to be ascertained or identified, and that, therefore, it is bad on demurrer notwithstanding the allegation in the complaint in conformity with section 535 of the Code of Civil Procedure. The article is libelous per se, and obviously refers to some person or persons. The allegation that it refers to the plaintiff is an allegation of fact (Code Civ. Proc. § 535) which the demurrer necessarily admits. Of course said section was designed to furnish a new rule of pleading and not of proof, and while the plaintiff may be unable to establish the application of the article by proof of extrinsic facts, we are dealing with an admitted fact, which for aught that appears the plaintiff may be able to establish, and the Court of Appeals has gone no further than to hold that alleging the application of the article in the language of section 535 of the Code of Civil Procedure will not save a complaint from demurrer where such allegation is rendered nugatory by other allegations in the complaint showing that the article complained of could not possibly have referred to the plaintiff. ( Fleischmann v. Bennett, 87 N.Y. 231; Corr v. Sun Printing Publishing Association, 177 id. 131.)
The interlocutory judgment overruling the demurrers should be affirmed, with costs.
HIRSCHBERG, P.J., BARTLETT, JENKS and HOOKER, JJ., concurred.
Interlocutory judgment affirmed, with costs.