Buscelle v. Conde Nast Publications, Inc.

173 Misc. 674, 19 N.Y.S.2d 129, 1940 N.Y. Misc. LEXIS 1628

Opinion

McLaughlin, J.

The action is one based upon an alleged violation of sections 50 and 51 of the Civil Rights Law because of the use of the picture of the infant plaintiff for advertising purposes without the written consent of the parent or guardian of the infant. The motion seeks to strike out the partial defense which pleads the oral consent of the parent or guardian. Such a partial defense may be properly pleaded. (Hammond v. Crowell Publishing Co., 253 App. Div. 205.) The plaintiff seeks to strike out certain denials. These denials are proper. An examination of the complaint shows that the defendant is justified in denying all of the paragraphs in question because they contain one or more allegations of facts with which the defendant can take issue. Lastly the plaintiff asserts that the entire answer should be stricken because it is unverified. There is no merit to the claim because in this type of action the answer need not be verified even though a verified complaint has been served. Motion is in all respects denied.