101 N.Y.S. 606 | N.Y. App. Div. | 1906
Each defendant demurred tó the complaint on the ground that causes of action were improperly united. The court at Special Term so held and plaintiff appeals from the interlocutory judgment.
The complaint charges in substance that the defendant MacFadden, at the times stated, was doing business under the name of • “ Physical .Culture Publishing Company,” and was the owner and publisher of certain magazines named ; that the defendant Whit?
“4.' That from or about the month of February, 1905, the defendant White has used and is using said portrait or picture of plaintiff, a living person, within the State óf: New York and elsewhere, for advertising purposes and for the purposes of trade in advertising a book entitled as 6 New Flair Culture,’ and to procure or increase the sale of said book. I
“ 5. That defendant White used said picture sis aforesaid without first obtaining the consent, written or otherwise!, of the plaintiff;, that defendant White knowingly used plaintiff’s! said portrait or picture in the manner as aforesaid, without' plaintiff’s consent or /knowledge, and continued its use against plaintiff’s protest and so used it in such manner as is forbidden or declared to be unlawful by .chapter 132 of the Laws of 1903 of the State of New York.” The 6th and Ytli paragraphs of the complaint áre precisely like -the 4th and 5th just quoted, except that MacFadden, whose name is substituted for that of White, is alleged to be the. author of the book referred to. The 8th paragraph is as follows: “ That said portrait or picture of plaintiff was so used by the defendants as heretofore alleged, acting jointly, and was so published by them jointly in the State of New York and elseWliere in periodicals known as ‘ Physical Culture’ and ‘Beauty and Flealth,’ and in other magazines and publications which were by them sent or caused to be sent broadcast over the State of New York, thellnited States and foreign countries.” The 9th and 10th paragraphs are to the effect that the picture of the plaintiff was “ thus used by defendants to deceive the public ’’ ' by representing that plaintiff had treated her hair as jtherein directed; that the use made by defendants of the portrait had' annoyed the plaintiff and caused her great bodily and. mental anguish, held her up to contempt, and by reason thereof slie had suffered in her good name and reputation to her damage of $15,000. ;
The judgment demanded is that the defendants and ea'ch'of them • be'restrained and en joined from publishing, displaying or otherwise using plaintiff’s portrait for advertising purposes of for purposes of
I am of the opinion that the complaint sets forth but one cause of action, and that against both defendants. The acts of which plaintiff coniplains are .joint and .not individual acts of the defendants. . It is true that some of the ¿cts of which she complains are set out twice, once, against each defendant, but these acts are thereafter alleged to be the acts of both. Otherwise, there is no meaning to the allegation contained in the 8th paragraph of the complaint, which is “ that said portrait or picture of plaintiff was so used by the defendants as heretofore alleged, acting jointly, and was so published by them jointly. * "x" This allegation is that the act of each was also the act of the other; or, in other words, that they were acting together. .
The purpose of a demurrer, upon the ground that causes of action have been improperly united, is to compel a plaintiff to elect upon which he will proceed to trial. Here a cause of action is not alleged against MacFadden, nor is there a. cause of action alleged against White, but there is one cause of action alleged, and that is against both of them; hence, there can be no election.. •
It is also claimed that causes of' action have been improperly united, in that equitable and legal relief are both prayed for. But equitable causes of /action may be united with legal, if both arise out of the same transaction. (Code Civ. Proc. § 484; Carter v. De Camp, 40 Hun, 258.) Plaintiff’s claim to both kinds of relief grows out of the same transaction, that is, the alleged wrongful and unlawful acts of the defendants.
The interlocutory judgment, therefore, should be .reversed1, with costs, the demurrer overruled, with costs, with leave to each defendant to withdraw his demurrer and answer within twenty days, on payment of the costs in this court and in the court below.
Patterson, Ingraham:, Lahghlin and Clarke, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled,' with costs, with leave to each defendant to withdraw demurrer and to answer on payment of costs in this court and. in the court below, Order filed,