majority">By the Court.*—Bosworth, J.

—Section 164 of the Code declares that “ in an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was spoken or published concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so spoken or published.”

*502The complaint in this action states that the defamatory matter was published “ of this plaintiff.” Whether the extrinsic facts alleged, for the purpose of applying to the plaintiff each or either of the matters supposed to be libellous, are of themselves alone sufficient, it is unnecessary to decide. It is competent for the plaintiff to prove that they were published of and concerning himself; and upon a demurrer to the complaint, it must be assumed that he can do so.

Each of the libellous imputations contained in the published article must, therefore, upon a demurrer to the complaint, be deemed to have been published of the plaintiff, because the complaint so avers. That mode of pleading is allowed by the Code. The allegation is material and sufficient, and its truth is admitted by the demurrer.

The article commences with an account of the stock operations of the proprietors of the Daily Times, of whom the plaintiff is alleged in the complaint to be one. From that, and its comments upon it, the article passes to “The Valley Bank swindle,” the profits of which are stated to be between $200,000 and $300,000. The article states that the Times proprietors got but about one-fourth “of the plunder.” They furnished theiwhole capital, which was small, for onefowrth of the profits. “ The Valley Bank exploded sooner than was intended.” “ It was the intention of its originators to get out a circulation of half a million before the collapse, but some of the machinery at work gave way, and brought the concern suddenly to a dead lock.”

It may be conceded that nothing contained in this article is absolutely inconsistent with the idea, that neither of the proprietors of the Daily Times was concerned in originating the Valley Bank, or in its management, or -was a party to any plan or intent to defraud the public.

At the same time, we are not prepared to say that it may not be fairly held to mean that the proprietors of the Times were to furnish the whole capital, which was to be small and inadequate ; and that they, before the bank was put in operation, agreed to do this, expecting and intending, in common with those having its immediate management, that a half million of dollars of its notes should be issued, which, were not to be redeemed; and that they should receive one-fourth of the whole sum of which the public might be plundered, for fur*503nishing capital enough to effect such a purpose, and by such means.

We think, therefore, that the demurrer was rightfully overruled. Whether it was frivolous or not, is not the question to be decided on an appeal from the order. (Laverty v. Griswold, 12 N. Y. Leg. Obs., 316.)

If correctly decided on the merits, it should not be reversed merely because the court may think it was not frivolous.

The order appealed from must be affirmed, with $10 costs.

Present, Bosworth, Hoffman, Slosson, and Woodruff, JJ.

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