110 N.Y.S. 900 | N.Y. Sup. Ct. | 1908
The plaintiff herein demurs to the first and second separate defenses of the answer herein on the ground that each is insufficient in law upon the face thereof. The plaintiff sues under chapter 132, Laws of 1903, for the unauthorized use of her name and picture by the defendants. The complaint sets forth the infancy of the plaintiff, the appointment of her guardian, the unauthorized use for advertising purposes or purposes of trade by the defendants of the plaintiff’s portrait and name for several weeks in the autumn and winter of 1906 without the consent, written or otherwise, of the plaintiff or of her parent or guardian, and the consequent injury and damage to the plaintiff in the sum of $5,000; judgment is then demanded for an injunction restraining the use of said portrait and the name and also for damages. The plaintiff proceeds under the statute, the Court of Appeals having denied the existence of any cause of action at common law. Roberson v. Rochester Folding Box Co., 171 N. Y. 538. The privacy statute, which became operative on September 1, 1903, reads as follows: “ Section 1. A person, firm or corporation that uses for advertising purposes, or for the purpose of trade, the name, portrait or picture of any living person without having first obtained
Demurrer sustained, with costs.