
    Ella C. Patterson, Plaintiff, v. Colgate & Co., Defendant.
    Supreme Court, New York County,
    May 27, 1926.
    Libel and slander — action for publication of picture of dead person without plaintiff’s consent — publication may be punishable as libelous act, under Penal Law, § 1340, but civil action is not maintainable.
    The complaint in this action, in which plaintiff seeks to recover damages for publication of the picture of a dead person without plaintiff’s consent, must be dismissed, since no action can be maintained for such publication either on the theory of libel or violation of the right of privacy; though the publication may be punishable as a libelous act, under section 1340 of the Penal Law, it does not follow that a civil action for libel is maintainable thereunder, or at common law.
    Motion by defendant to dismiss complaint, on the ground that it does not state facts sufficient to constitute a cause of action.
    
      Arnold Furst, for the plaintiff.
    
      Trowbridge & Fox [Alan Fox of counsel], for the defendant.
   Erlanger, J.

Until the Legislature shall declare that the publication of the picture of a dead person without the consent of the heirs or next of kin is illegal, no action can be maintained for such publication, either on the theory of libel or violation of the right of privacy. Section 1340 of the Penal Law provides that A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occupation, is a libel.”

Assuming that the publication in question is punishable as libelous under the act, it does not follow that a civil action for libel is maintainable thereunder, or at common law. With the ethics of the publication in question a court does not concern itself. The article is humorous, but as to its taste it is questionable.

Motion is granted. Order signed.  