82 N.Y.S. 248 | N.Y. Sup. Ct. | 1903
This is an application for an injunction pendente lite to restrain the defendant from in anywise publishing the photograph and certain memoranda concerning the appearance or measurements of the plaintiff and for a mandatory direction that the negative of such likeness, together with all copies and reproductions of it and the memoranda be destroyed or surrendered to the plaintiff.
The material facts are as follows:
The plaintiff is a naturalized citizen. On May 10, 1899, he was arrested by a detective-sergeant of the police department, acting under the direction of a superior officer, as he arrived at the pier of an incoming transatlantic steamship. He was arrested without warrant or other written authority, but merely “on suspicion of being implicated in the larceny of $1,200 ” from a passenger on a European steamer proceeding to England. He was taken to police headquarters, searched and a note for $1,200 made by the passenger was found on his person. Then he was photographed, and certain measurements of his person and his weight were taken for preservation in what is known as the Bertillon bureau of the police department. The following morning he was arraigned before a police magistrate and discharged, the officer being unable to produce the passenger to make a complaint, being himself unable to do so and there being no evidence to submit to the magistrate that the prisoner had committed a crime.
Upon being liberated, he went to police headquarters and demanded of the then head of the detective bureau the destruction of the photograph and the measurements. That officer makes affidavit admitting a request, and a promise on his part to comply, if certain statements made by the relator should prove to be true. The photograph and measurements were, however, not destroyed for the reason, as stated by the officer in his affidavit, that “ on investigation I learned that he was a man of bad character and known to the officers of European steamers as a card sharp.” The plaintiff swears that he "was under the belief that the photograph
After the newspaper publication referred to, the plaintiff made formal demand, in writing, of the defendant for the removal and destruction of his photograph and measurements. This was refused and hence this suit.
Several affidavits are submitted as to the plaintiff’s reputation. The detective-officer who made the arrest in 1899 swears that he had known the relator for five or six years theretofore, and alleges “ of my own knowledge that his associates are of the worst sort, cheats and gamblers and disreputable people of both sexes, and I was informed and verily believe that he has no occupation, and he is known as a cheap cheating gambler on all the European steamers.”
Another detective-officer makes affidavit “that the said Jacob Owen is constantly crossing to England and the Continent with no object in view save that of playing of cards with his fellow-passengers and cheating them.”
The plaintiff denies these and all similar allegations, and avers that he is of good moral character, that he has never been convicted and never arrested with the exception of the one instance hereinbefore referred to.
, The plaintiff also avers that the so-called rogues’ gallery contains only the pictures .of persons who have been convicted of crime, and who are considered persistent, dangerous or habitual criminals; that the portraits and measurements are bound in book form and widely circulated in this country and in Europe. It
As to the law on this statement of facts:
Even were the plaintiff entitled to any part of the relief he' asks, he could not get a mandatory direction on this preliminary application directing the destruction of the photograph and measurements. That would be the question ultimately to be determined in the- action. His maximum relief now would be an injunction restraining the exhibition and publication, in any manner, of the photograph and measurements. Mandatory injunctions, granted even on final decree' with caution and limitation, are allowed only with rarity on an interlocutory application, and then in extreme cases where the right is established with indisputable clearness and where the final result may otherwise fail to afford complete relief. High Inj., § 2; Kerr Inj., §§ 230, 251; 16 Am. & Eng. Encyc. of Law, 343; Close v. Flesher, 8 Misc. Rep. 299; Ward v. Kelsey, 14 Abb. Pr. 106.
The question then becomes, can the plaintiff, on the facts dis- ' closed, secure even partial or limited relief by way of injunction, or, more broadly stated, can the plaintiff, in the event of proving his facts on the trial, have, as a matter of law, any injunctive relief whatsoever, whether mandatory or preventive.
The first point to be considered.is, have the plaintiff’s rights been invaded?
The acts of the defendant’s predecessor in office, so far as this plaintiff is - concerned, and the defendant’s continuance of them by preserving, exhibiting or circulating the photograph and meas
In the view that I take of this application, however, I do not deem it necessary to examine further the by no means clear question of the right to take for police purposes the photograph of a person merely suspected of crime. Conceding, but not in any wise deciding, that there is no such right,.and conceding, further, again without deciding, that even if there is such a right, the defendant fails to bring himself within the facts permitting its exercise, I am of the opinion that the plaintiff has mistaken his remedy. In other words, conceding that the plaintiff’s rights have been invaded, he cannot seek redress for the violation by means of an injunction action.
It is argued on behalf of the plaintiff that a trespass had been committed against him; that a so-called right of privacy has been invaded; that there has been an injury to his character and reputation, and that, as all these wrongs are continuing, he is entitled to injunctive relief.
The only trespass apparent is one that may have been committed in the first instance against his right of personal security, if he was .compelled, against his will, to sit for his photograph. That injury, however, is not, nor has it been, continuing. That is past and done and cannot be enjoined. In effect, the plaintiff’s position is that the other injuries which he claims have followed from that as its source. The relief he seeks is not for the alleged unlawful taking of the photograph, but for its alleged unlawful preservation and publication.
This brings us then, to a consideration of his second claim, which is, in effect, that his right of privacy has been invaded.
After some vacillation, rather by way of didum, than decided principle, our Court of Appeals has finally repudiated the doctrine that the right of privacy has any existence in law or is enforceable in equity. Roberson v. Rochester Folding Box Co., 171 N. Y. 538.
“The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written
After examining the history of the phrase “ right of privacy ” and discussing the cases, directly and indirectly bearing upon it, the court concludes: “An examination of the authorities leads ■ us to the conclusion that the so-called right of privacy ’ has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided ” (p. 556).
In view of this authoritative pronouncement it would be purposeless to base any argument or relief on the right of privacy. It is settled, for this State at least, that any invasion of one’s right to be let alone can be remedied only by a statutory enactment directed against the particular case. The facts in Roberson v. Rochester Folding Box Co., supra, showed a peculiarly aggravated case in the absolutely unauthorized publication and circulation of an easily recognizable likeness of a reputable young woman as part of an advertisement, spread broadcast, for a brand, of flour. Injunctive relief was denied.
An examination of the authorities, relied on by the plaintiff, on this branch of the case, will show that they are based either on dicta or on principles directly overruled or disapproved in the Eoberson case.
Thus Schuyler v. Curtis, 147 N. Y. 442, while containing dicta tending to support the plaintiff’s position, in reality proceeded upon the principle that, even if the right of privacy existed, it did not survive the death of the person to the perpetuation of whose memory it was sought to erect a statue. The dicta were considered and rejected in the Eoberson case. So far as the plaintiff relies on the opinions of the lower courts in the Schuyler
We are brought then to the question of the injury to the plaintiff’s character and reputation. But this is a libel and nothing more (1 Tiedeman, supra, 157; People ex rel. Joyce v. York, supra; State ex rel. Bruns v. Clausmeier, supra), and the publication of a libel cannot be restrained by injunction. Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; De Wick v. Dobson, 18 App. Div. 399; New York Juvenile Asylum v. Roosevelt, 7 Daly, 189; Brandreth v. Lance, 8 Paige, 24; Kidd v. Horry, 28 Fed. Repr. 773; Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69; Singer Mfg. Co. v. Domestic S. M. Co., 49 Ga. 70; Townsh. Sland. & Lib., § 417a, et seq.; Odger Lib. & Sland., *13-16.
“Ho injunction can be obtained,” says Mr. Odger, “toprohibit the publication or republication of any libel or restrain its sale.” In the early case of Brandreth v. Lance, supra, the rule was announced that to restrain the publication of a libel by injunction would be an infringement upon the liberty of the press and an attempted exercise of the power of preventive justice which the Legislature had decided could not safely be entrusted to any tribunal consistently with the principle of a free government; and most recently in Marlin Fire Arms Co. v. Shields, supra, our Court of Appeals bases its argument in part, upon the constitutional guaranty of freedom of speech and press, arguing against equitable interference by showing how the party charged could thereby be punished and deprived of his liberty without trial by jury.
The language in Brandreth v. Lance that: “ The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property ” is law to-day.
In Marlin Fire Arms Co. v. Shields, 68 App. Div. 91, it was sought to sustain the injunction on the claim that property rights were involved, but it was expressly recognized that: “ Where the injury is purely personal, like an attack upon character and reputation, equity * * * has uniformly declined to entertain jurisdiction.” The Court of Appeals, reversing, held that there was no precedent in the courts of this State for equitable interference.
I must so hold in this case. The English authorities referred
The plaintiff’s sole injury, if any, has been to his character and reputation. Though he may have suffered wrong and the injury be irreparable, equity, as administered in this State, can give him no relief, but he must seek his remedy at law.
The motion for a preliminary injunction must be denied, with ten dollars costs.
Motion denied, with ten dollars costs.