Roberson v. . Rochester Folding Box Co.

64 N.E. 442, 171 N.Y. 538, 9 Bedell 538, 1902 N.Y. LEXIS 881

• Court: New York Court of Appeals
• Decided: June 27, 1902
• Status: Published

Opinions

Parker, Ch. J.

The Appellate Division has certified that the following questions of law have arisen in this case, and ought to be reviewed by this court: 1. Does- the complaint herein state a cause of action at law against the defendants or either of them ? 2. Does the complaint herein state a cause of action in equity against the defendants or either of them ? These questions are presented by a demurrer to the complaint, which is put upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

As ’ a demurrer admits not only those facts which are expressly alleged in the complaint, but everything which can be implied by fair and reasonable intendment from its allegations (Marie v. Garrison, 83 N. Y. 14, 23) we are to inquire whether the complaint, regarded from the standpoint of this rule, can be said to show any right to relief either in law or in equity.

The complaint alleges that the Franklin Mills Co., one of the defendants, was engaged in a general milling businéss and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained, made, printed, sold and circulated about 25,000 lithographic prints, photographs and likenesses, of plaintiff, made in a manner particularly set up in the complaint; that upon the paper upon whiph the likenesses were printed and above the portrait there were printed, in large, plain letters,'the words, “ Flour of the Family,” and below the portrait in large capital letters, “ Franklin Mills Flour,” and in the lower right-hand corner in smaller capital letters, “ Bochester Folding Box Co., EoChester, FT. Y.; ” that upon the same sheet were othel* advertisements of thp flour of the Franklin Mills- Co.; that those 25,000 likenesses of the plaintiff thus ornamented have been conspicuously posted and displayed in stores, warehouses, saloons and other public places ; that they have been recognized by friends of the plaintiff and other people with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement and her good name has been attacked, causing her great distress and suffering both in body and mind; that she was made sick and suffered a severe nervous shock, was confined to her bed and compelled to employ a physician, because of these facts; that defendants had continued to print, make, use, sell and circulate the said lithographs, and that by reason of the foregoing facts plaintiff had suffered damages in the sum of $15,000. The complaint prays that defendants be enjoined from making, printing, publishing, circulating or using in any manner any likenesses of plaintiff in any form whatever, for further relief (which it is not necessary to consider here) and for damages.

It will be observed that there is no complaint made that plaintiff was libeled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaintances were able to recognize ; indeed, her grievance is that a good portrait of her, and, therefore, one easily recognized, has been used to attract attention toward the paper upon which defendant mill company’s advertisements appear. Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants’ impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes; but as it is distasteful to her, she seeks the aid of the courts to enjoin a further circulation of the lithographic prints containing her portrait made as alleged in the complaint, and as an incident thereto, to reimburse her for the damages to her feelings, which the complaint fixes at the sum of $15,000.

There is no precedent for such an action to be found in the decisions of this court; indeed the learned judge who wrote the very able and'interesting opinion in the Appellate Division said, while upon the threshold of the discussion of the question : “ It may be said in the first place that the theory upon which this action is predicated is new, at least in instance if not in principle, and that few precedents can be found to sustain the claim made by the plaintiff, if indeed it can be said that there are any authoritative cases establishing her right to recover in this action.” Nevertheless, that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defendants had invaded what is called a “ right of privacy ” — in other words, the right to be let alone. Mention of such a right is not to be found in Blackstone, Kent or any other of the great, commentators upon the law, nor so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was presented with attractiveness and no inconsiderable ability in the Harvard Law Review (Vol. IV, page 193) in an article entitled, “ The Right of Privacy.”

The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers, and, necessarily, that- the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. While most persons would much prefer to have a good likeness of themselves appear in a responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as to the other, for the principle which a court of equity is asked to assert in support of a recovery in this action is that the right of privacy exists and is enforceable in equity, and that the publication of that which purports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to .prevent his features from becoming known to those outside of his circle of friends and acquaintances.

If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness but must necessarily embrace as well the publication of a word-picture, a comment upon one’s looks, conduct, domestic relations or habits. And were the right of privacy once legally asserted it would necessarily be held to include the same things if spoken instead of printed, for one, as ivell as the other, invades the right to be absolutely let alone. An insult would certainly be in violation of such a right and with many persons would more seriously wound the feelings than would the publication of their picture. And so we might add to the list of things that are spoken and done day by day which seriously offend the sensibilities of good people to which the principle which the plaintiff seeks to have imbedded in the doctrine of the law would seem to apply. I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforceable in equity by injunction, and by damages where they seem necessary to give complete relief.

The legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. In such, event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme, and, therefore, unjustifiable application of an old principle.

The court below properly said that “ while it may be true that the fact that no precedent can be found to sustain an action in any given case, is cogent evidence that a principle does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court,” provided — I think should be added — there can be found a clear and unequivocal principle of the common law which either directly or mediately governs it or which by analogy or parity of reasoning ought to govern it.

It is undoubtedly true that in the early days of chancery jurisdiction in England the chancellors were accustomed to deliver their judgments without regard to principles or precedents and in that way the process of building up the system of equity went on, the chancellor disregarding absolutely many established principles of the common law. “In no other way,” says Pomeroy, “ could the system of equity jurisprudence have been commenced and continued so as to arrive at its present proportions.” (Pomeroy’s Eq. Jur. § 48.) In their work the chancellors were guided not only by what they regarded as the eternal principles of absolute right, but also by their individual consciences, but after a time when “ the period of infancy was passed and an orderly system of equitable principles, doctrines and rules began to be developed out of the increasing mass of precedents, this theory of a personal conscience was abandoned; and ‘ the conscience,’ which is an element of the equitable jurisdiction, came to be regarded, and has so continued to the present day, as a metaphorical term, designating the common standard of civil right and expediency combined, based upon general principles and limited by established doctrines to which the court appeals, and by which it tests the conduct and rights of suitors — a juridical and not a personal conscience.” (Pomeroy’s Eq. Jur. § 57.)

The importance of observing the spirit of this rule cannot be overestimated, for, while justice in a given case may be worked out by a decision of the court according to the notions of right which govern the individual judge or body of judges comprising the court, the mischief which will finally result may be almost incalculable under our system which makes a decision in one case a precedent for decisions in all future cases which are akin to it in the essential facts.

So in a case like the one before us, which is concededly new to tliié court, it is important that the court should have in mind the effect upon future litigation and upon the development of the law which would necessarily result from a step so far outside of the beaten paths of both common law and equity, assuming — what I shall attempt to show in a moment — that the right of privacy as a legal doctrine enforceable in equity has not, down to this time, been established by decisions.

The history of the phrase “ right of privacy ” in this country seems to have begun in 1890 in a clever article in the Harvard Law Review—already referred to — in which a number of English cases were analyzed, and, reasoning by analogy, the conclusion was reached that — notwithstanding the unanimity of the courts in resting their decisions upon property .-rights in cases where publication is prevented by injunction — in reality such prevention was due to the necessity of affording protection to thoughts and sentiments expressed through the medium of writing, printing and the arts, which is like the right not to be assaulted or beaten ; in other words, that the principle, actually involved though not always appreciated, was that of an inviolate personality, not that of private property.

This article brought forth a reply from the Northwestern Review (Vol. Ill, page 1) urging that equity has no concern with the feelings of an individual or with considerations of moral fitness, except as the inconvenience or discomfort which the person may suffer is connected with the possession or enjoyment of property, and that the English authorities cited are consistent with such view. Those authorities are now to be examined in order that we may17 see whether they were intended to and did mark a departure from the established rule which had been enforced for generations; or, on the other hand, are entirely consistent with it.

The first case is Prince Albert v. Strange (1 Macn. & G. 25 ; 2 De G. & S. 652). The queen and the prince, having made etchings and drawings for their own amusement, decided to have copies struck off from the etched plates for presentation to friends and for their own use. The workman employed, however, printed some copies on his own account, which after-wards came into the hands of Strange, who purposed exhibiting them, and published a descriptive catalogue. Prince Albert applied for an injunction as to both exhibition and catalogue, and the vice-chancellor granted it, restraining defendant from publishing “at least by printing or writing, though not by copy or resemblance,” a description of the etchings: An examination of the opinion of the vice-chancellor discloses that he found two reasons for granting the injunction, namely, that the property rights of Prince Albert had been infringed, and that there was a breach of trust by the workman in retaining some impressions for himself. The opinion contained no hint whatever of a right of privacy separate and distinct from the right of property.

Pollard v. Photographic Co. (L. R. 40 Ch. Div. 345) is certainly not an authority for granting an in junction on the ground o‘f threatened injury to the feelings, although it is true, as stated in the opinion of the Appellate Division, that the court did say in the course of the discussion that the right to grant an injunction does not'depend upon the existence of property; but the decision was, in fact, placed upon the ground that there was a breach of an implied contract. The facts, briefly stated, were that a photographer had been applied to by a woman to take her photograph, she ordering a certain number of copies, as is usual in such cases. The photographer made copies for himself and undertook to exhibit them, and also sold copies to a stationer, who used them as Christmas cards. Their action was restrained by the court on the ground that there was an implied contract not to use the negative for "any other purpose than to supply the sitter with copies of it for a price. During the argument of plaintiff’s counsel, the court asked this question: “ Do yon dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies ? ”. Counsel replied : “ In that case there would be no consideration to support a contract.”

In Gee v. Pritchard (2 Swanst. 402) B attempted to print a private letter written him by A, and he was restrained on the ground that the property of that private letter remained in A, B having it only for the qualified purpose for which it was sent to him, the basis of the decision, therefore, being the idea of plaintiff’s property in the thing published, as being the product of his mind, written by him and put into the hands of B for a limited purpose only.

The same judge, Lord Eldon, also granted the injunction in Abernathy v. Hutchinson (3 L. J. Ch. 209) restraining the publication in the “ Lancet ” of lectures delivered at a hospital by the y>laintiff. The court expressed a doubt in that case whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground that it was a breach of confidence on the part of a pupil who was admitted to hear the lectures to publish them, inasmuch as they were delivered for the information of the pupils and not for sale and profit by them.

Mayhall v. Higbey (1 H. & C. 188) was also a case where an injunction was granted and nominal damages awarded on the ground that plaintiff had a property right in certain photographic negatives which he had loaned to a person who, subsequently, became insolvent and whose assignee, without right, sold them to defendant who printed copies from them which he published and sold.

In Duke of Queensberry v. Shebbeare (2 Eden, 329) the Earl of Clarendon delivered to one Gwynne an original manuscript of his father’s, “ Lord Clarendon’s History.” Gwynne’s administrator afterwards sold it to Shebbeare, and the court, upon the application of the personal representatives of Lord Clarendon, restrained its publication on the ground that they had a property right in the manuscript which it was not intended that Gwynne should have the benefit of by multiplying the number of copies in print for profit. '

In not one of these cases, therefore, was it the basis of the decision that the defendant could he restrained from performing the act he was doing or threatening to do on the ground that the feelings of the plaintiff would he thereby injured; but, on the contrary, each decision was rested either upon the ground of breach of trust or that plaintiff had a property right in' the subject of litigation which the court could protect.

A more recent English case, decided in 1898, is more nearly in point and negatives the contention that plaintiff may restrain an unauthorized publication which is offensive to him — namely, Dockrell v. Dougall (78 L. T. R. 840). In that case defendant, the owner of a medicine called “Sallyco,” published the following substantially true but unauthorized statement about plaintiff: “ Dr. Morgan Dockrell, physician to St. John’s Hospital, London, is prescribing Sallyco as an habitual drink. Dr. Dockrell says nothing has done his gout so much good.” In the course of the opinion the court said, in effect, that plaintiff claimed to be entitled to an injunction restraining defendant from using plaintiff’s name in his advertisements on the ground that an injunction should be granted in every such case where it can he shown that the use of the plaintiff’s name is unauthorized and is calculated to injure him in His profession, and after saying that lie did not think that this was right, he stated the proper rule to he that “ In order that an injunction may issue to restrain a defendant from using a plaintiff’s name the use of it must be such as to injure the plaintiff’s reputation or property.”

Hone of the other English cases brought to our attention are claimed to have a direct bearing upon this question, and it seems to us very clear that they do not in anywise support the position of plaintiff.

The case that seems to have been more relied upon than any other by the learned Appellate Division in reaching the conclusion that the complaint in this case states a cause of action, is Schuyler v. Curtis (147 N. Y. 434). In that case certain persons attempted to erect a statue or bust of a woman no longer living, and one of her relatives commenced an action in equity to restrain sucli erection, alleging that his feelings and the feelings of other relatives of deceased would be injured thereby, At Special Term an injunction was granted on that ground. (19 N. Y. Supp. 264.) The General Term affirmed the decision. (64 Hun, 594.) This court reversed the judgment, Judge Peckham writing, and so far as the decision is concerned, therefore, it is not authority for the existence of a right of privacy which entitles a party to restrain another from doing an act which, though not actionable at common law, occasions plaintiff mental distress. In the course of the argument, however, expressions were used which it is now claimed indicate that the court recognized the existence of such a right. A sufficient answer to that contention is to be found in the opinion written on the motion for reargument in Colonial City Tr. Co. v. Kingston City R. R. Co. (154 N. Y. 493) in which it was said : “ It was not our intention to decide any case but the one before us. * * * If, as sometimes happens, broader statements were made by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance.” The question up for decision in the Schuyler case was whether the relatives could restrain the threatened action of defendants, and not whether Mrs. Schuyler could have restrained it had she been living. The latter question not being before the court it was not called upon to decide it, and, as we read the opinion, there is no expression in it which indicates an intention either to decide it or to seriously consider it, but rather, it proceeds upon the assumption that if such a right did exist in Mrs. Schuyler, her relatives did not succeed to it upon her death; all of which will sufficiently appear from the following extracts from the opinion :

“ This action is of a nature somewhat unusual and dependent for its support upon the application of certain principles which are themselves not very clearly defined or their bound aries very well recognized or plainly laid down. Briefly described, the action is founded upon the alleged violation of what is termed the right of privacy?

“ It is not necessary, however, to the view which we take of this case, to lay down precise and accurate rules which shall apply to all cases touching upon this alleged right?

“ For the purposes we have in view, it is unnecessary to wholly deny the existence of the right of primacy to which the plaintiff appeals as the foundation of his cause of action.”

“ While not assuming to decide what this right of privacy is in all cases, we are quite clear that such,a right would not be violated by the proposed action of the defendants.”

There are two other cases in this state bearing upon this question: Marks v. Jaffa (26 N. Y. Supp. 908), decided at Special Term, and Murray v. Gast Lithographic & Engraving Co. (8 Misc. Rep. 36) decided at an Equity Term of the Court of Common Pleas at New York. In the first case the relief prayed for was granted upon the authority of the decision of the General Term in the Schuyler case, which was subsequently reversed in this court. In the Murray case, in a well-reasoned opinion by Judge Bischoff, it is held that a parent cannot maintain an action to enjoin an unauthorized publication of the portrait of an infant child, and for damages for injuries to his sensibilities caused by the invasion of his child’s privacy, because “ the law takes no. cognizance of a sentimental injury, independent of a wrong to person or property.” In the- course of his opinion he quotes from the opinion of Lumpkin, J., in Chapman v. West. U. T. Co. (88 Ga. 763) as follows: “ The law protects the person and the purse. The person includes the reputation. The body, reputation and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But, outside these protected spheres, the law does not yet attempt to guard the peace of mind, the feelings or the happiness of everyone by giving recovery of damages for mental anguish produced by mere negligence. There is no right, capable of enforcement by jDrocess of law, to possess or maintain, without disturb anee, any particular condition of feeling. The law leaves feeling to be helped and vindicated by the tremendous force of sympathy. The temperaments of individuals are various and variable, and the imagination exerts a powerful and incalculable influence in injuries of this kind. There are many moral obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation. Perhaps the feelings find as full protection as it is possible to give in moral law and a responsive public opinion. The civil law is a practical business system, dealing with what is tangible, and does not undertake to redress psychological injuries.”

Outside of this jurisdiction the question seems to have been presented in two other cases in this country : Corliss v. E. W. Walker Co. (57 Fed. Rep. 434; 64 Fed. Rep. 280) and Atkinson v. Doherty (121 Mich. 372). The Gorliss case -was an action in equity to restrain the publication of the biography and picture of Mr. Corliss. It was based upon an alleged invasion of the right of privacy. The court denied the injunction as to the publication of the biography but granted it as to the use of certain plates from which the defendant was to make a picture of Mr. Corliss, upon the ground that they had been obtained upon conditions which defendant had not complied with. In the course of the opinion the court saidUnder our laws one can speak and publish what he desires, provided he commit no offense against public morals or private reputation. * * * There is another objection which meets us at the threshold of this case. The subject-matter of the jurisdiction of a court of equity is civil property, and injury to property, whether actual or prospective is the foundation on which its jurisdiction rests. (Re Sawyer, 124 U. S. 200, 210; Kerr. Inj. [2d ed.] p. 1.) It follows from this principle that a court of equity has no power to restrain a libelous publication.” Both the opinion and the decision necessarily negative the existence of an actionable right of privacy; but subsequently upon a motion to dissolve the injunction, which was granted upon the ground that Mr. Corliss was a public character, and. hence the publishers were entitled to use his picture, the learned court expressed the opinion that a private individual has the right to be protected from the publication of his portrait in any form. Row, while this suggestion was obiter, it merits discussion, and an examination of that which it promulgates as doctrine discloses what we deem a fatal objection to the establishment of a rule of privacy. The learned judge says : “ I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal fight, and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant’s book by a clerk. * * * But, while the right of" a private individual to prohibit the reproduction of "his picture or photograph should be recognized and enforced, this right may be surrendered or dedicated to the public by the act of the individual, just the same as a private manuscript, book or painting becomes (when not protected by copyright) public property by the act of publication. The distinction in the case of a picture or photograph lies, it seems to me, between public and private characters. A private individual should be protected against the publication of any portrait of himself, but where an individual becomes a public character the case is different. A statesman, author, artist or inventor, who asks for and desires public recognition, may be said to have surrendered his right to the public.” This distinction between public and private characters cannot possibly be drawn. On what principle does an author or artist forfeit his right of privacy and a great orator, a great preacher, or a great advocate retain his? Who can draw a line of demarcation between public characters and private characters, let that line be as-wavering and irregular as you please ? In the very case then before the judge, what had Hr. Corliss done by which he surrendered his right of privacy ? In what respect did he by his inventions “ask for and desire public recognition” any more than a banker or merchant who prosecutes his calling? Or is the right of privacy the possession of mediocrity alone, which a person forfeits by giving- rein to his ability, spurs to his industry or grandeur to his character? A lady may pass her life in domestic privacy when, by some act of heroism or self-sacrifice, her name and fame fill the public ear. Is she to forfeit by her good deed the right of privacy she previously possessed ? These considerations suggest the answer we would make to the position of the learned judge and at the same time serve to make more clear what we have elsewhere attempted to point out, namely, the absolute impossibility of dealing with this subject save by legislative enactment, by which may be drawn arbitrary distinctions which no court should promulgate as a part of general jurisprudence.

Atkinson v. Doherty ivas a suit in equity brought by the widow of Colonel John Atkinson, a well-known lawyer in Detroit, to enjoin the defendant, a cigar manufacturer, from using the name and portrait of Colonel Atkinson upon boxes of cigars manufactured by defendant. The suit was dismissed by the Circuit Court, .and its decree was unanimously affirmed by the Supreme Court. The case quite closely resembles the Schuyler case, which ivas brought .to the attention of that court, and in the course of the opinion the contention that the Schuyler case intimated the existence of a right of privacy was met as follows : “ We think it should not be considered as containing a dictum even in support of the doctrine contended for.” The method adopted by the court in the Atkinson case in treating the question was different from that employed by this court in the Schuyler case, however, for the opinion proceeds to a review of the authorities upon which the right of privacy is said to rest, reaching the conclusion that all of the authorities which are entitled to respect are based upon property or contract rights, and hence “ that Colonel Atkinson Avould himself be remediless Avere he alive, and the same is true of his friends avIio survive.” The opinion concludes as follows: “ This Irav of privacy seems to have gained a footliold at one time in the history of our jurisprudence— not by that name, it is true—but in effect. It is evidenced by the old maxim, ‘ the greater the truth the greater the libel,’ and the result has been the emphatic expression of public disapproval, by the emancipation of the press and the establishment of freedom of speech, and the abolition in most of the states of the maxim quoted by constitutional provisions. The limitations upon the exercise of these rights being the law of slander and libel, whereby the publication of an untruth-that can be presumed or shown to the satisfaction, not of the plaintiff, but of others (i. e., an impartial jury), to be injurious, not alone to the feelings, but to the reputation, is actionable. •Should it be thought that it is a hard rule that is applied in this case, it is only necessary to call attention to the fact that a ready remedy is to be found in legislation. We are not satisfied, however, that the rule is a hard one, and think that the concensus of opinion must be that the complainants contend for a much harder one. The law does not remedy all evils. It cannot, in the nature of things; and deliberation may well be used in considering the propriety of an innovation such as this case suggests.- We do not wish to be understood as belittling the complaint. We have no reason to doubt the feeling of annoyance alleged. Indeed, we sympathize with it, and marvel at the impertinence which does not respect it. We can only say that it is one of the ills that under the law cannot be redressed.”

An examination of the authorities leads us to the conclusion that the so-called “right of privacy” has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided.

I do not say that, even under the existing law, in every case of the character of the one before us, or indeed in this case, a party whose likeness is circulated against his will is without' remedy. By section 245 of the Penal Code any malicious publication by picture, effigy or sign which exposes a person to contempt, ridicule or obloquy is a libel, and it would constitute such at common law. Malicious in this definition means simply intentional and willful. There are many articles, especially of medicine, whose character is such that using the picture of a person, particularly that of a woman, in connection with the advertisement of those articles might justly be found by a jury to cast ridicule or obloquy on the person whose picture was thus published. The manner or posture in which the person is portrayed might readily have a like effect. In such cases both a civil action and a criminal prosecution could be maintained. But there is no allegation in the complaint before us that this was the tendency of the publication complained of, and the absence of such an allegation is fatal to the maintenance of the action, treating it as one of libel. This case differs from an action brought for libelous words. In such case the alleged libel is stated in the complaint, and if the words are libelous per se it is unnecessary to charge that their effect exposes the plaintiff to disgrace, ridicule or obloquy. The law attributes to them that result. But where the libel is a picture which does not appear in the record, to make it libelous there must be a proper allegation as to its character.

The judgment of the Appellate Division and of the Special Term should be reversed and questions certified answered in the negative, without costs, and with leave to the plaintiff to serve an amended complaint within twenty days, also without costs.