Fleischmann v. Bennett , 30 N.Y. Sup. Ct. 200 ( 1880 )

Dykman, J.:

This action is for libel, and the defendant has interposed a demurrer to the first and second cause of action set down in the complaint.

The demurrer is founded on the position that the articles complained of in these two counts were not published of or concerning the plaintiff, according to the portion of the complaint objected to. If this is so they contain no libel of the plaintiff, and the whole •complaint must be taken together in determining, upon demurrer, whether it contains a cause of action, as well the allegation tending to discharge as those tending to charge the defendant, (Calvo v. Davies, 73 N. Y., 211.)

It is alleged in this complaint, almost at its commencement, that the plaintiff had never been guilty of any violation of the laws of this State, nor been in any manner a copartner, owner or agent, in any business or calling such as described in the libel thereinafter set forth; or in the production of milk or distillery swill, or distillery waste or grain, or ownership or care of cows, or keeping of cows, or feeding of cows, or guilty of any of the offenses charged in the libel. It is thus averred that the business of the plaintiff is that of a baker and restaurant-keeper in the city of New York, and he is in possession of a valuable and lucrative business and custom.

Thus the averment is, that the defendant published concerning "the plaintiff, and concerning the premises, two articles in the New York Herald which are set out, and which have reference alone to Gaff, Fleischmann & Co., distillers in Queens county.

In other words, the plaintiff charges that the defendant published libelous articles concerning him, and sets out the articles complained of, which show that they had no reference either to the plaintiff or his business.

Numerous definitions have been made of what constitutes an actionable libel, but from none has been omitted the important -element of application of the libel to the plaintiff. It must be censorious toward the complainant, and our view is that the complaint ■objected to by this demurrer contains no such element, and has no reference to the plaintiff.

It is as if the plaintiff should say, the defendant, intending a libel •on him, published a libelous article concerning another. This, in substance, is what the plaintiff, does say.

The judgment appealed from must be reversed, with costs, and judgment rendered for the defendant on the demurrer, with costs; with leave to the plaintiff to amend in twenty, days on payment of oosts.

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgment reversed, with costs and disbursements.