*1 strate that system the adherence to by the merit mandated precludes representation Constitution by both sexes neces- sary for the sound administration system, of the school particularly light provisions in the of the of subdivision 10 of section 2573 of appointments the Education Law, which enables teaching supervisory service from the first three persons appropriate eligible list. are,We therefore, proposed respondents that action of the arbitrary capricious. peti- from should be reversed and the granted. tioner’s motion should be J.,P. Frank JJ., concur. and Valente, unanimously petitioner’s Order reversed and the
granted. Settle order on notice. Henry Appellant, Company John Dallesandro, Holt Incorporated Henry (Sued Herein as Holt and Company, Inc.), Respondent. 1957. (Ira Irving with him on of counsel Kivitter Bartfield appellant. attorney), Irving for Kwitter,
brief; (William Crowley Joseph E. counsel Stoclchausen with R. Stephens, attorneys), bfm £ Satterlee, brief; Warfield displayed Per Curiam. on the cover of Defendant published, Waterfront Priest a book it that showed Father plaintiff, Corridan, a *2 longshoreman not and rank-and-file union member. We do proscription picture believe the use of this comes within the of Eights sections 50 and 51 of the Civil Law. picture illustrating public
A an article on a matter of interest purpose advertising is not of or considered used for the trade prohibition (Gautier within v. Pro-Football, the of the statute 359) relationship 304 N. Y. unless it has no real to the 354, App. 848), (Thompson Close-Up, article v. Div. 277 or unless disguise (Griffin the article is an advertisement in v. Medical 549). Y., 2d It makes Soc. ference N. 7 Misc no dif State of (Lahiri appears newspaper the in a whether article Daily magazine (Oma 776); Mirror, v. Misc. a v. 162 Hillman App. (Redmond 240); a Periodicals, 281 Div. newsreel v. Corp., 707); (Gautier Columbia Pictures 277 N. Y. television picture (Merle supra); v. in a motion v. Pro-Football, Sociolo (Damron gical App. 376); Corp., or in a book Research 166 Div. App. Doubleday 796). Co., v. 133 Misc. affd. 226 Div. 302, Doran currency publica permissible The test of use is not the picture appears tion in which but whether it is illustrative the public (Molony Boy legitimate a matter interest v. Comics App. Corp., F-Rv. Pub. Publishers, 166, 170; Div. Sidis 277 711). 113 F. cert. denied 311 806, 2d U. S. story purports to be the true of a The book here involved gangsterism
priest’s against and terror on crusade one-man jacket showing the book York waterfront and the New the longshoreman priest with a is an in earnest ‘ attempted pictorialization It is immaterial that of the theme. designed placement the was to sell and its manner of use ” (Oma paid v. Hillman and read it so that p. 244). (See, supra, v. Universal also, Humiston Periodicals, offending App. 467.) book Mfg. The Co., 189 Div. Film appears complaint, therefrom it and since is annexed the under Civil is not actionable the use of that properly without dismissed Eights Law, Whisper, affd. (Callas Inc., 829, 198 Misc. amend leave 759). Y. App. N. affd. 303 Div. affirmed. should from support of the (dissenting). The defendant’s P. J. upon largely complaint, dismissing rests below, decision (281 Periodicals v. Hillman court in Oma of this decision I dissented. 240) Mr. Justice
App. in which Div. Callahan expressed IWhile adhere to the view that dissent, would again against authority majority it not advance thought controlling if I the decision there was here. undoubtedly There is a close resemblance between the two cases perhaps only difference is that the Oma dealt with periodical present an article of current interest in a Reporting a case relates to I think is a difference. newspapers magazines always of current events given special picturiza- latitude the allowable area of Rights although A tion under the it Law. Civil however, subject a of current more interest, deals with is deliberate permanent in its in its formation and format. A book magazine. in the same sense as or Assuming currency of interest of the matter in illustration of a use, warrants *3 person photograph of a not connected with the text of the justification using I can still see no person I on the of a book. add such (supra) something “public plaintiff the Oma ” scrutiny boxing figure world, which was under plaintiff involved, here criticism in anything appear to be more than rank-and-file does He is not with waterfront. otherwise identified worker or text of the photograph plaintiff’s regard case as this the use purposes claim the being of trade without considera- for the to extended which tion interest. articles my opinion from should be reversed the order
In com- If the dismiss denied. to paragraph 18 of the answer should plaint reinstated, were complete to a defense. irrelevant as struck then in Per JJ., concur Frank, Rabin and Botein, J., opinion. P. dissents in Curiam opinion; costs to Judgment affirmed, Appellant. Respondents, Fontheim, Kurt Morris, & Demov 22, 1957.