125 N.Y.S. 710 | N.Y. App. Div. | 1910
The plaintiff brings this action to secure a perpetual injunction forbidding the defendant to make use of the plaintiff’s name and
Section 516 provides that “ where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.” The matter is one going peculiarly to the discretion of the' court which entertains the motion, and, while it is not beyond the power of this court to interfere, we apprehend that a, clear case should be presented to warrant this court in overruling an order of this character. In the case now before us the statute which alone gives the right of action, for none existed at common law (Roberson v. Rochester Folding Box Co., 171, N. Y. 538), provides that'“Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action .in the Supreme. Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof.” (Civil Eights Law [Consol. Laws, chap. 6; Laws of 1909, chap. 14], § 51.) The action is statutory and the plaintiff must; by pleading
The order appealed from should be affirmed.
Hirschberg, P. J., Jenks, Thomas and High, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.