Wellman v. Sun Printing & Publishing Ass'n

21 N.Y.S. 577, 73 N.Y. Sup. Ct. 331, 50 N.Y. St. Rep. 254, 66 Hun 331

• Court: New York Supreme Court
• Decided: December 12, 1892
• Status: Published

Opinion

BARNARD, P. J.

The complaint states that the libel in question charged 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. Railroad Co., 75 N. Y. 192.

There is an allegation that the article was published of and concerning the plaintiff. No libelous 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.