Siegel v. Esquire, Inc.

4 A.D.2d 477, 167 N.Y.S.2d 246, 1957 N.Y. App. Div. LEXIS 4230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1957
• Status: Published

Opinion

Per Curiam.

Plaintiff has alleged that defendant used her picture without her consent for the purpose of trade to illustrate an article entitled “ The Miracle of Face Planing ” in the magazine Coronet, in a manner forbidden by sections 50 and 51 of the Civil Rights Law. However, the copy of the article annexed to the complaint and made a part thereof contradicts such eonelusory allegations (Hays v. American Defense Soc., 252 N. Y. 266; Salomon v. Mahoney, 271 App. Div. 478, affd. 297 N. Y. 643). The picture, examined in conjunction with the text of the article, appears on its face to be an illustration of a newsworthy article on a new medical development, a matter of legitimate public interest (Oma v. Hillman Periodicals, 281 App. Div. 240). Plaintiff urges in her brief that as in Griffin v. Medical Soc. of State of N. Y. (7 Misc 2d 549) the article was really an advertisement in disguise to publicize for their own pecuniary gain the doctors mentioned in the article and the machine they had developed. This cannot be inferred from the complaint as it now stands. If it be so, plaintiff must set forth facts sufficient to support the eonelusory allegation that her picture and the annexed article were used for the purpose of trade. The order appealed from should be reversed and the complaint dismissed, with leave to serve an amended complaint.

Botein, J. P., Rabin, Frank, Valente and McNally, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to appellants, and the motion to dismiss the complaint granted, with leave to serve an amended complaint, within 20 days after service of a copy of this order, with notice of entry, upon the attorney for the respondent.