Barrett, J.:
The relator was committed by a city magistrate upon a charge of libel. The affidavit upon which he was held states that he “did maliciously publish of and concerning the Sun Printing and Publishing Association * * * the following defamatory language, to wit: ‘ The Sun is against good wages,’ and ‘ The Sun now practices what it long has preached,, that workingmen have no rights that *202capital is bound to respect.’” The affidavit shows the manner in which these defamatory words were published, but fails to connect the corporation therewith. The charge itself was sufficient (Code Crim. Proc. § 289), but there was no evidence to support it in the particular referred to. This section 289 of the Code of Criminal Procedure dispenses with an averment upon that head, but not with proof. On the contrary, after providing that an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application of the defamatory matter to the party libeled, and that it is sufficient to state generally that the same was published concerning him, adds, “ and the fact that it was so published ” — that is, concerning him — “ must be established on the trial.” Conforming the preliminary inquiry before a magistrate to this provision the charge was doubtless sufficient. There should, however, have been some evidence tending to support it. Otherwise, the magistrate was without jurisdiction to hold the relator. The libel complained of was a malicious publication by writing or printing which had a tendency to injure the- corporation named in its business. But' its business was not stated, nor was it shown that it published the Sun specified in the libel, nor that the Sim so specified .was a newspaper. There was, in fact, no proof in support of the charge that the defamatory words were published concerning the corpora7 tion, nor that they had any relation to its business.
The" other points presented by the appellant are without merit, but, because of the lack of proof in the particular mentioned, the order should be reversed and the relator discharged.
Van Brunt, P. J., Patterson, . O’Brien and McLaughlin, JJ., concurred.
Order reversed and relator discharged.