Opinion
February 23, 1937.
Joseph Wynne, for the plaintiff.
Stahl Updike [ James W. Rodgers of counsel], for the defendant.
This action was commenced by the plaintiff upon two causes of action, one for the unauthorized use of the name and picture of the plaintiff in violation of the Civil Rights Law, and the other for libel. The plaintiff, who at the time of publication was an unemployed model, alleges that her name and picture appeared in the Daily News in a column known as "The Inquiring Photographer." She further alleges that she was described therein as a cigarette girl employed by the Commodore Hotel. The defendant now seeks a dismissal of the complaint upon the ground that it fails to set forth facts sufficient to constitute a cause or causes of action.
The conduct of the defendant does not infringe upon the rights of the plaintiff in accordance with the protection afforded by the Civil Rights Law. Section 51 thereof provides in part, "Any person whose name, portrait or picture is used within this State for advertising purposes or for purposes of trade, without the written consent first obtained," may sue and recover damages. The column which embodied the article containing the plaintiff's name and portrait was not intended or used for advertising purposes or purposes of trade. The first cause of action must, therefore, be dismissed.
The plaintiff in her second cause of action alleges that she was held up to public contempt, ridicule and scorn because of the fact that she was erroneously described as a cigarette girl. This article is not libelous per se, since it does not injure the plaintiff's reputation, nor in and of itself cause her pecuniary damages. Therefore, inasmuch as the cause of action does not allege special damages it must fail.
Motion granted, with leave to plaintiff to serve an amended complaint as to the second cause of action within ten days of service of a copy of the order, with notice of entry thereof.