Cox v. Magnum Publications, Inc.

285 A.D. 1083, 140 N.Y.S.2d 27, 1955 N.Y. App. Div. LEXIS 6729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1955
• Status: Published

Opinion

In an action for an injunction and to recover damages based on alleged violations of plaintiff Pearl Cox’s right of privacy (Civil Rights Law, §§ 50, 51), defendant Magnum Publications, Inc., appeals from an order denying its motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements. The first cause of action sets forth an actionable cause. It was not improper to refuse to dismiss the second cause, which is for consequential damage claimed to have been sustained by plaintiff Pearl Cox’s husband, since the motion was addressed to the entire complaint. (Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79.) Wenzel, Schmidt, Beldock and Murphy, JJ., concur; Nolan, P. J., dissents and votes to reverse the order and to grant the motion, on the authority of Callas v. Whisper, Inc. (278 App. Div. 974, affd. 303 N. Y. 759).