19 N.Y.S. 264 | N.Y. Sup. Ct. | 1892
The plaintiff is the nephew and stepson of one Mrs. G. L. Schuyler, and the defendants, with the exception of the defendant Hartley, are the officers and members of an unincorporated association which they call the “Woman’s Memorial Fund Association.” This association having announced the project of placing a life-size statue of Mrs. Schuyler, to be designated “The Typical Philanthropist,” on public exhibition at the Columbian Exposition to be held in Chicago in 1893, and having announced that' a contract had been made with the defendant Hartley, a professional sculptor of some reputation, for the execution of this statue, and having undertaken to raise money by public subscription for this purpose, this action was brought by the plaintiff, representing and with the approval of all the nearest relatives ■of the said Mrs. Schuyler, to enjoin the execution of this project; and a motion was made for an injunction penclente lite, which was granted upon the ■ground that the said Mrs. Schuyler was not a public character, i. e., had not placed herself before the public, either in accepting public office or in becoming a candidate for office, or as an artiste of litterateur, and from the order thereupon entered this appeal is taken.
While concurring with the conclusion arrived at by the learned justice below, I cannot subscribe to the doctrine which seems to pervade the opinion rendered upon the decision of the motion, that if Mrs. Schuyler had been a public character, as defined by him, this motion should have been denied. The claim that a person who voluntarily places himself before the public, •either by accepting public office or by becoming a candidate for office, or as .an artist or literary man, thereby surrendered his personality while living and his memory when dead to the public, to be used or abused as any one of that irresponsible body may see fit, cannot for a moment be entertained. It is undoubtedly true that by occupying a public position, or by making an appeal :to the public, a person surrenders such part of his personality or privacy as pertains to and affects the position which he fills or seeks to occupy, but no further; and certainly his memory, when dead, does not necessarily thereby become public property. It is urged upon the part of the appellants that even if Mrs. Schuyler were alive, and had the same objection to the defendants’ proposed action that the plaintiff now has, she would be remediless and powerless. If such were the fact, it would certainly be a blot upon our boasted •system of jurisprudence that the courts were powerless to prevent the unwarranted doiag of things by persons who are mere volunteers, which would ■wound in the most cruel manner the feelings of many a sensitive nature.
It is further urged that the plaintiff has no standing .in court, and that the fancied injury to the plaintiff, complained of, if any such injury can be in any way discovered, is certainly not such an injury as the court will grant an injunction to prevent, because it is not an injury to his person, to his estate, or to his good name, and is not a violation of his privacy or seclusion, and because the plaintiff stands in the same relation to the defendants and to their project as does all the rest of the world, and in no other relation. The result of this claim is that, when a person is dead, there is no power in any court to protect his memory, no matter how outrageously it may be insulted. The feelings of relatives and friends may be outraged, and the memory of the deceased degraded, with impunity, by any person who may desire thus to affect the living. It seems to us that such a proposition carries its own refutation with its statement. It cannot be that by death all protection to the reputation of the dead, and the feelings of the living in connection with the dead, has absolutely been lost. The memory of the deceased belongs to the surviving relatives and friends, and such relatives have a right to see that that which would not have been permitted in respect to the deceased when living shall not be done with impunity when the subject has become incapable of protecting himself. It is undoubtedly true that cases of the character now before ■.the court are not to be found in*the books. But it is probably the first time
The fact that the plaintiff has suffered no pecuniary damage, redress.for which is sought in this action, is no answer to the application, because one of the most important departments in the jurisdiction of courts of equity is the prevention of wrongs which would be otherwise irreparable, because courts of law cannot afford any remedy in damages. The order appealed from should be affirmed, with costs.
