¶1The action is for libel. The alleged libelous article is-the same dispatch as that set forth in the action of the same plaintiff against the Associated Press, with the addition of a heading thereto and a statement appended to the dispatch.
¶2Upon the trial the defendant made a motion to dismiss the complaint upon the ground that the complaint as amplified, by the bill of particulars does not state a cause of action, specifically claiming that it appears by the complaint and bill of particulars that the matter was not published of and concerning the plaintiff, and does not . relate to the plaintiff in any manner. The motion was granted and the plaintiff excepted.
¶3We think the heading and statement appended to the published dispatch and the additional facts contained in the bill of particulars are not of such a character as to take the case out of the effect of the decision of the case of Soper v. Associated Press (115 App. Div. 815), decided herewith. While these facts tend to show not only that the dispatch was published in good faith, but also that the plaintiff was not the person referred to in the dispatch, we cannot say as a matter of law that the general allegation of the plaintiff that the article published of and concerning him was superseded by these additional facts and the other allegations of the complaint, making it appear thereby that it was not published about the plaintiff. ■ .
¶4If we are correct in the conclusion we have reached, it follows that the complaint should not have been dismissed.
¶5The judgment and order denying the motion for a new trial should be reversed and a new trial ordered, costs to the appellant to abide the event.
¶6All concurred, except McLennan, P. J., and Nash, J., who dissented in an opinion by Nash, J.