Delinger v. American News Co.

6 A.D.2d 1027, 178 N.Y.S.2d 231, 1958 N.Y. App. Div. LEXIS 4636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1958
• Status: Published

Opinion

Order denying defendants’ motion to dismiss the complaint for insufficiency unanimously modified on the law so as to dismiss the second cause of action, and otherwise affirmed, without costs. Defendants wrote, published and distributed a magazine article illustrated by a photograph of plaintiff, a physical training instructor, as a candidate for the title of “Mr. Universe — 1956”. The text of the article contained a discussion in general terms of the relationship between muscular development and virility. Such publication cannot be deemed an actionable use for trade or advertising under sections 50 and 51 of the Civil Rights Law (Dallesandro v. Holt & Co., 4 A D 2d 470; Siegel v. Esquire, Inc., 4 A D 2d 477; Oma v. Hillman Periodicals, 281 App. Div. 240). Settle order. Concur — Botein, P. J., Breitel, Rabin, M. M. Frank and Stevens, JJ.