
    Felicite Skiff Riddle, Appellant, v. Bernarr A. MacFadden and Luther S. White, Respondents.
    First Department,
    December 7, 1906.
    Tort — pleading — action for unauthorized use of plaintiff’s portrait — when complaint states action' against defendants jointly—joinder of action at law and suit in equity.
    When a complaint asking damages for the unauthorized use of the plaintiff’s portrait by the defendants, contrary to chapter 132 of the Laws of 1903, joins as defendants both the photographer who took the portrait, and an author who used it in his publications, and alleges that it was used by the defendants “acting jointly,” only one cause of action is alleged which is against the defendants jointly, even though the same counts are elsewhere separately set out against each defendant. '
    A demurrer for the improper joinder of causes of action in such complaint will not be sustained, for the object of such demurrer is to compel an election, and when there is but one action stated there can be no election.
    An action at law for damages and a suit in equity to restrain such use of the plaintiff’s portrait may be united in one complaint, as they grew out of the same transaction.
    Appeal by the plaintiff, Felicite Skiff Riddle, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Flew-York on the 4th day of April, 1906, upon the decision of the court, rendered after a trial at the FTew York Special Term, sustaining the defendants’ separate amended demurrers to the complaint.
    
      Rufus L. Weaver for the appellant.
    
      William Bell Wait, Jr., for the respondent White.
    
      Charles P. Rogers, for the respondent MacFadden.
   MoLaughlin, J.:

Each defendant demurred tó the complaint on the ground that causes of action were improperly united. The court at Special Term so held and plaintiff appeals from the interlocutory judgment.

The complaint charges in substance that the defendant MacFadden, at the times stated, was doing business under the name of • “ Physical .Culture Publishing Company,” and was the owner and publisher of certain magazines named ; that the defendant Whit? was, during such times, a photographer and that plaintiff procured him to take her photograph, for which she paid him a stipulated price, it being agreed between them that such portrait and all copies of it were to be exclusively for plaintiff’s nse¡ Then, come the following allegations: , ■ . . ;

“4.' That from or about the month of February, 1905, the defendant White has used and is using said portrait or picture of plaintiff, a living person, within the State óf: New York and elsewhere, for advertising purposes and for the purposes of trade in advertising a book entitled as 6 New Flair Culture,’ and to procure or increase the sale of said book. I

“ 5. That defendant White used said picture sis aforesaid without first obtaining the consent, written or otherwise!, of the plaintiff;, that defendant White knowingly used plaintiff’s! said portrait or picture in the manner as aforesaid, without' plaintiff’s consent or /knowledge, and continued its use against plaintiff’s protest and so used it in such manner as is forbidden or declared to be unlawful by .chapter 132 of the Laws of 1903 of the State of New York.” The 6th and Ytli paragraphs of the complaint áre precisely like -the 4th and 5th just quoted, except that MacFadden, whose name is substituted for that of White, is alleged to be the. author of the book referred to. The 8th paragraph is as follows: “ That said portrait or picture of plaintiff was so used by the defendants as heretofore alleged, acting jointly, and was so published by them jointly in the State of New York and elseWliere in periodicals known as ‘ Physical Culture’ and ‘Beauty and Flealth,’ and in other magazines and publications which were by them sent or caused to be sent broadcast over the State of New York, thellnited States and foreign countries.” The 9th and 10th paragraphs are to the effect that the picture of the plaintiff was “ thus used by defendants to deceive the public ’’ ' by representing that plaintiff had treated her hair as jtherein directed; that the use made by defendants of the portrait had' annoyed the plaintiff and caused her great bodily and. mental anguish, held her up to contempt, and by reason thereof slie had suffered in her good name and reputation to her damage of $15,000. ;

The judgment demanded is that the defendants and ea'ch'of them • be'restrained and en joined from publishing, displaying or otherwise using plaintiff’s portrait for advertising purposes of for purposes of trade in any publication; that, they be directed to deliver up ‘all woodcuts, electrotypes, negatives or other apparatus for making copies of such picture, and that plaintiff have judgment for the damages sustained. ,

I am of the opinion that the complaint sets forth but one cause of action, and that against both defendants. The acts of which plaintiff coniplains are .joint and .not individual acts of the defendants. . It is true that some of the ¿cts of which she complains are set out twice, once, against each defendant, but these acts are thereafter alleged to be the acts of both. Otherwise, there is no meaning to the allegation contained in the 8th paragraph of the complaint, which is that said portrait or picture of plaintiff was so used by the defendants as heretofore alleged, acting jointly, and was so published by them jointly. * "x" This allegation is that the act of each was also the act of the other; or, in other words, that they were acting together. .

The purpose of a demurrer, upon the ground that causes of action have been improperly united, is to compel a plaintiff to elect upon which he will proceed to trial. Here a cause of action is not alleged against MacFadden, nor is there a. cause of action alleged against White, but there is one cause of action alleged, and that is against both of them; hence, there can be no election.. •

It is also claimed that causes of' action have been improperly united, in that equitable and legal relief are both prayed for. But equitable causes of /action may be united with legal, if both arise out of the same transaction. (Code Civ. Proc. § 484; Carter v. De Camp, 40 Hun, 258.) Plaintiff’s claim to both kinds of relief grows out of the same transaction, that is, the alleged wrongful and unlawful acts of the defendants.

The interlocutory judgment, therefore, should be .reversed1, with costs, the demurrer overruled, with costs, with leave to each defendant to withdraw his demurrer and answer within twenty days, on payment of the costs in this court and in the court below.

Patterson, Ingraham:, Lahghlin and Clarke, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled,' with costs, with leave to each defendant to withdraw demurrer and to answer on payment of costs in this court and. in the court below, Order filed,  