
    SCHUYLER v. CURTIS.
    
      N. Y. Supreme Court, Special Term, First District;
    
    
      September, 1891.
    1 Injunction without right at law.] The jurisdiction of equity' to grant an injunction is not confined'to cases in which damages could be recovered at law. The court of chanceiy always had jurisdiction to prevent what that court considered a wrong, independent of any question as to the right at law.
    
    2. Cause of action ; restraining the erection of a statue of a deceased relative.] On application for a preliminary injunction, held, a relative may on behalf of himself and all other nearest living relatives of a deceased person, who had not been a public character, but merely a private citizen, although she had engaged in private works of philanthropy, maintain an action to enjoin strangers from taking steps to procure the erection of a statue of deceased at a public exhibition to be designated as the “ Typical Philanthropist,” together with the statue of a well-known agitator to be designated as the “ Typical Reformer,” where the erection of such statue is contrary to the wishes of all the deceased’s nearest relatives, and had never been assented to by the deceased in her lifetime.
    3. Equity; right of privacy.] Although it may be contrary to public policy to enjoin any fair or reasonable description or portraiture of a person who has voluntarily become a public character, either by accepting or becoming a candidate for a public office or by holding himself out as an artist or literary .man, yet the privacy of a private person may be protected by enjoining a description or portraiture, causing publicity of such person when made without his consent, or in case of his decease, without the consent of his relatives.
    4. The same.] A person by engaging in private works of philanthropy does not thereby become a public character so as to forfeit his right of privacy.
    5. Formst] Form of complaint and injunction order in an action to restrain the erection of a statue of a deceased relative, which would violate the deceased’s right of privacy.
    Motion to continue an ex parte injunction.
    The action was brought by Philip Schuyler against Ernest Curtis and others to enjoin steps being taken by defendants for the erection of a statue of Mary M. Hamilton, the stepmother and aunt of plaintiff, to represent “woman as a philanthropist ’’ at the prospective Columbian Exposition of 1893.
    The complaint was as follows :—
    
      First. That plaintiff is the only son of George L. Schuyler, late of the city of New York, and of Eliza Hamilton Schuyler, his wife, who was a daughter of the late James A. Hamilton, of “ Nevis,” and granddaughter of Major-General Alexander Hamilton.
    
      Second. That the said Eliza Hamilton Schuyler died in the year 1863, and that thereafter, in the year 1869, the said George L. Schuyler married Mary Morris Hamilton, a younger sister of the said Eliza Hamilton Schuyler. That the said Mary Morris Hamilton Schuyler died on May 11, 1877; and that the said George L. Schuyler died on July 31, 1890, leaving him surviving three children, viz : the plaintiff Philip Schuyler and his two sisters, all children of Eliza Hamilton Schuyler aforesaid.
    
      Third. That the defendants above-named, other than the defendant Hartley, are members of a voluntary unincorporated association in the city of New York, named “ The Woman’s Memorial Fund Association,” of which the defendant, Ernest Curtis, is treasurer, the defendant, Alice Donlevy, is secretary, and the defendants, Frances E. Fryatt, Emma S. Marsily, Lilian (or Lily) Isaacs, Elizabeth B. Phelps, Annie C. Lawson, and Ada Carpenter, are the active members of the so-called “ General Council.”
    
      Fourth. That the object of the said association, as stated in the printed documents emanating therefrom, “ is the completion of two sculptures to honor ‘ Woman as the Philanthropist,’ and ‘Woman as the Reformer,’ at the Columbian Exposition of 1893.”
    
      Fifth. That the said association has publicly announced that “ as the typical philanthropist, Mary M. Hamilton, who died Mrs. G. L. Schuyler, has been “ chosen as the subject of the statue;” and that the said association is now, and as the plaintiff has recently learned, has been for several months past, circulating statements to that effect, and soliciting subscriptions for that purpose.
    
      Sixth. That the said association has also publicly announced that it has made a contract with the defendant, Jonathan Scott Hartley, a professional sculptor, for the execution of a statue or bust of the said Mary M. Hamilton, with the intention of placing the same on exhibition as “ the typical philanthropist,” at the Columbian Exposition to be held at Chicago, in the year 1893 ; and that the said Hartley admits having received a commission from the said association to model such a statue of the said Mrs. Schuyler.
    
      Seventh. That the said association has chosen Susan B. Anthony, as the subject of a second statue, to be designated “the Representative Reformer;” and that it has undertaken to make this statue, and has already exhibited the model thereof at the National Academy, in the city of New York.
    
      Eighth. That the said association has also publicly announced that its intention is to place the statue or bust of the said Mary M. Hamilton Schuyler (referred to by the said association as Mary M. Hamilton), on exhibition in conjunction with the said statue or bust of Susan B. Anthony, and as a companion-piece thereto, at the Columbian Exposition aforesaid.
    
      Ninth. That George L. Schuyler, the husband of the said Mary M. Hamilton Schuyler, and Alexander Hamilton, her brother, were both living at the time that the said association claims to have originated the plan of making and exhibiting the statue aforesaid of the said Mrs. Schuyler; that both of them were men well known in the city of New York, and that they were easily accessible at all times. That the said Alexander Hamilton died on December 30, 1889 ; but that the said George L. Schuyler was living until the end of July, 1890, and that he resided at his house, No. 19 West Thirty-first street, in the city of New York, throughout the winter of 1889— 1890, and until the month of June, 1890.
    
      Tenth. That no application of any kind was made by or on behalf of the said “ Woman’s Memorial Fund Association,” either to the said George L. Schuyler or to the said Alexander Hamilton, for permission to make or exhibit a statue or bust of the said Mary. M. Hamilton Schuyler ; that neither of them was consulted in any way by any of the defendants with reference thereto ; and that neither the said George L. Schuyler, nor the said Alexander Hamilton authorized the defendants or any of them, or any other person or persons whatever, to make or exhibit a statue or bust of the said Mary M. Hamilton Schuyler.
    
      Eleventh. That the plaintiff is positive in his belief that neither the said George L. Schuyler nor the said Alexander Hamilton had any knowledge or information whatever of the existence of the aforesaid “ Woman’s Memorial Fund Association,” or of its project óf making and exhibiting a statue of the said Mary M. Hamilton Schuyler; and that he is also positive in his belief that had they or either of them known of it, they would have done everything in their power to prevent the execution of such a project, and to prevent the use of Mrs. Schuyler’s name in connection with the said association, or with the defendant’s project hereinbefore stated.
    
      Twelfth. That the immediate relatives now living of the said Mary M. Hamilton Schuyler are as follows: (i) Her four nephews and nieces, viz : the plaintiff, Philip Schuyler, and his two sisters Louisa Lee Schuyler and Georgina Schuyler ; and George S. Bowdoin, only son of her deceased sister Fanny Morris Hamilton, wife of the late George S. Bowdoin. (2) Her uncle, Lewis G. Morris, of “ Mount Fordham,” the only surviving brother of her mother, the late Mrs. James A. Hamilton ; and (3) her aunt, Mrs. Philip Hamilton, widow of her uncle, the late Philip Hamilton, and their son, Dr. Allan McLane Hamilton, of the city of New York.
    
      Thirteenth. That until May 18, 1891, the plaintiff and the other relatives aforesaid of the said Mrs. Schuyler were wholly unaware both of the existence of the “Woman’s Memorial Fund Association” aforesaid, and of the project hereinbefore specified of the members thereof,-to make and exhibit a statue of the said Mrs. Schuyler; and that their first knowledge of this project was derived from a newspaper article in relation thereto printed in a newspaper published in Washington, D. C., which article contained comments and criticisms of the nature hereinafter, in the twentieth paragraph of this complaint, referred to.
    
      Fourteenth. That at the earliest possible opportunity after consultation with the relatives of the said Mrs. Schuyler, the plaintiff, on May 27, 1891, addressed a courteous communication to the said association, stating that the project of making a statue of the said Mary M. Hamilton Schuyler, was wholly unauthorized, and requesting on behalf of Mrs. Schuyler’s relatives, that the project be abandoned by the said association.
    
      Fifteenth. That the defendant, Alice Donlevy, acting as secretary of the said association, has acknowledged the receipt of this communication, and has replied thereto in writing, that the said association refuses to abandon this project, and denies the right of Mrs. Schuyler’s relatives to be consulted in the matter; and further, that the said association intends to proceed with the execution of the said project and to solicit subscriptions therefor, notwithstanding the protests and objections made thereto by the plaintiff, on behalf of the family of the said Mrs. Schuyler.
    
      Sixteenth. That thereafter, the said association issued a printed statement to the same effect, entitled “ Card to the public,”—in which public announcement was made that the said association would continue its efforts to make the statue aforesaid, and would continue to solicit subscriptions therefor. That this document, a copy of which is hereto annexed, is dated June, 1891, and is signed by the defendant Alice Donlevy, as secretary; that it states that “ subscriptions should be sent to any member of the 1 General Council,’ who will transmit the same to the treasurer of the fund, Ernest Curtis, Esq., Post Office Box 1397, New York city ” ; and that with it, the announcement was made that the defendants Fryatt, Marsily, Isaacs, Phelps, Lawson, and Carpenter, as members of the “ General Council ” of the said association, are “ authorized to receive subscriptions to the Fund and also issue subscription blanks to those desirous of assisting in the work.”
    That this appeal for subscriptions has been widely circulated throughout the United States; and that, at the instance of the said association and particularly of the defendant Alice Donlevy,—the substance thereof has been printed in certain newspapers in the city of New York and elsewhere.
    
      Seventeenth. That subscriptions have already been made to the said “Woman’s Memorial Fund Association,” expressly for the project aforesaid of making and exhibiting a statue of the said Mrs. Schuyler; that certain of the said subscriptions have been sent to the defendant Ernest Curtis, as treasurer of the said “ association ” ; and that these subscriptions have been and are retained by the said defendant or by the said “ association.”
    
      Eighteenth. That for the purpose of advertising this project, and particularly for the purpose of procuring subscriptions to the proposed statue of the said Mary M. Hamilton Schuyler, the said “ association,” and particularly, the defendant Alice Donlevy, has caused wide publicity to be given to what purports to be a sketch of the said Mrs. Schuyler’s life. That this sketch contains many erroneous statements with reference to the said Mrs. Schuyler; and, in particular, a statement that she (designated in the said publications as Mary M. Hamilton) was the originator or organizer of the well-known “ Mount Vernon Association,” which had for its object the purchase and preservation of “ Mount Vernon," the home of Washington.
    
      Nineteenth. That this statement is untrue ; and that it is calculated to deceive,—in that, in an appeal to the public for subscriptions for a statue of the said Mrs. Schuyler, the credit and distinction due to another person, in relation to a matter of wide spread interest among all patriotic Americans, is improperly claimed for the said Mrs. Schuyler, in an apparently authoritative manner. That this distinction of being the organizer of the Mount Vernon Association was never claimed by the said Mrs. Schuyler, in any way, in her life-time, and has never been claimed on her behalf by any person authorized to speak for her or for her family ; but that, on the contrary, the said Mrs. Schuyler and her relatives have always given the credit for this distinction to the person to whom it is rightfully due viz: to the late Miss Ann Pamela Cunningham, of South Carolina.
    
      Twentieth. That the unauthorized publication and circulation by the defendants of this erroneous statement has exposed the said Mrs. Schuyler and her relatives to adverse comment, and to criticism of a nature peculiarly disagreeable to them, and for which they are in no way responsible. That such comment and criticism derogatory to the said Mrs. Schuyler and to her family has in fact been made in the public prints and elsewhere, in consequence of the publication of the erroneous statement aforesaid, in connection with the defendant’s project for the erection of a statue of the said Mrs. Schuyler; that annoyance and pain have been caused thereby to the plaintiff and to others of her immediate relatives; and that this adverse comment and criticism is wholly due to the unauthorized acts of the defendants herein, and particularly of the defendant Alice Donlevy.
    
      Twenty-first. That the said Mary M. Hamilton Schuyler was in no sense either a public character, or even a person generally known either in the community in which she lived or throughout the United States; but that, on the contrary, her life was pre-eminently the life "of a private citizen. That she was a woman of great refinement and cultivation ; that notoriety in any form was both extremely distasteful to her, and wholly repugnant to her character and disposition ; and that throughout her life, she neither sought nor desired it in any way. That while she did her share, with others, unobtrusively, in philanthropic work of her time, she was in no sense a “ typical philanthropist,” and made no claim to such distinction; and as the plaintiff believes, she would have deeply resented any such designation.
    
      Twenty-second. That the said Mary M. Hamilton Schuyler took no part whatever in any of the various so-called woman’s rights agitations, with which the aforesaid Susan B. Anthony was and is prominently identified ; and that she took no interest in such agitations or movements, and had no sympathy whatever with them ; and that, as the plaintiff believes, she would have resented any attempt such as is made by the defendants, to couple her name with that of the said Susan B. Anthony,
    
      
      Twenty-third. That the acts of the defendants in attempting to raise money by public subscription for a statue of the said Mary M. Hamilton Schuyler; in associating her name with the name of Susan B. Anthony, and in announcing that the projected statue of her is to be placed on public exhibition at the Columbian Exposition, as a companion-piece to a statue of the said Susan B. Anthony; in circulating what purports to be a sketch of the life of the said Mary M. Hamilton Schuyler; in falsely claiming that she was a public character; in impudently refusing the request made by her relatives that this wholly unauthorized project be abandoned ; and in causing the disagreeable notoriety and the public criticism and comment that has arisen in relation to this project,— constitute, and are an unlawful interference with the right of privacy, and a gross and unwarranted outrage upon the memory of the said Mary M. Hamilton Schuyler, under the specious pretense of doing honor to her memory ; and that the surviving members of her family have been and . are greatly distressed and injured thereby.
    
      Twenty-fourth. That as the plaintiff believes, the real purpose of the said defendants in devising the project aforesaid of making and exhibiting a statue of the said Mary M. Hamilton Schuyler, and their motive in insisting on proceeding with the execution of this project, in defiance of the wishes of Mrs. Schuyler’s family, as hereinbefore stated,—is to bring into public notice an obscure “ Art Association,” of which the said defendants are members, and under the auspices of which the aforesaid “ Woman’s Memorial Fund Association,” was organized and is conducted; and that the said defendants have refused to comply with the request of the said Mrs. Schuyler’s relatives that this project be abandoned, solely for the reason that her family name is widely known and respected throughout the United States, and that by making use of this name, they hope to obtain a large number of subscriptions which would not otherwise be made to the said association.
    
      Twenty-fifth. On information and belief, that the defendant Hartley has a large pecuniary interest in the execution of the project aforesaid ; and that his motives in the matter are entirely of a mercenary character.
    ' Twenty-sixth. On information and belief, that neither the association aforesaid nor any member of it, nor the defendant Hartley, either has or has access to any statue, portrait, photograph, or other likeness of the said Mary M. Hamilton Schuyler, or can, by any legitimate means, obtain access to any existing portrait or other likeness of her. That the said Hartley claims, however, that he is authorized by the said association to make an “ ideal portrait statue ’’ of the said Mrs. Schuyler, in case no actual likeness of her can be obtained; and that the said Hartley is prepared to undertake the execution thereof.
    - Twenty-seventh. That the matters hereinbefore stated constitute and are a continuing injury to the plaintiff and to the above named relatives of the said Mary M. Hamilton Schuyler; that the plaintiff represents all of her said relatives, and brings this action on behalf of all of them, and in order to avoid a multiplicity of suits ; that he has no adequate remedy at law for the redress of the injuries and wrongs hereinbefore complained of; that great and irreparable injury will be caused to the memory of the said Mrs. Schuyler and to her surviving relatives unless the defendants be enjoined from the further prosecution of the acts hereinbefore complained of; and that-he therefore seeks the equitable interference of this court to enjoin and restrain the further prosecution of the said acts by the defendants.
    
      Twenty-eighth. That Elizabeth Thompson, now of Stamford, in the State of Connecticut, is named by the defendants as the president of the “Woman’s Memorial Fund Association ” aforesaid ; but that she is not made a party to this action, for the reason that, as the plaintiff is informed by her relatives and by her duly appointed conservator in that State, she is now and since December 20, 1888, has been entirely paralyzed and wholly incapacitated mentally ; and that her name has been and is used by-the said defendants wholly without authority, and in defiance of their wishes.
    Wherefore, the plaintiff demands judgment against the defendants, that they and each of them, and all officers and members of the so-called “ Woman’s Memorial Fund Association” be enjoined and restrained from doing any or all of the acts hereinbefore complained of; and particularly (1) from making a statue or bust of the said Mary M. Hamilton Schuyler, in any form, or causing the same to be made or exhibited; (2) from soliciting or receiving subscriptions, in any way, for such statue or bust; and (3) from making use of the name of the said Mary M. Hamilton Schuyler, or circulating any description of her, in any way, in connection with the said “ association,’’ or with any project connected with it.
    The injunction granted in accordance with the opinion ordered, ‘‘that during the pendency of this action, and until the final determination thereof, the defendants [naming them] and each of them, and their agents, attorneys and servants, be and they are hereby enjoined and restrained from making or exhibiting a statue of Mary M. Hamilton Schuyler or causing the same to be made and exhibited in any way; from soliciting or receiving subscriptions in any way for a statue of the said . Mary M. Hamilton Schuyler; and from proceeding in any way for the execution of a project of the so-called ‘ Woman’s Memorial Fund Association,’ to make and exhibit a statue of the said Mary M. Hamilton Schuyler.”
    
      James B. Ludlow, for plaintiff.
    
      Walter S. Logan, for defendants.
    
      
       See the preceding case, and note thereto; also the next following case.
    
   O’Brien, J.

This is a motion for the continuance of a preliminary injunction restraining the defendant s from proceeding with a project for making and exhibiting a statue of the late Mrs. George Schuyler, who before her marriage, was a Miss Mary M. Hamilton. Mrs. Schuyler had no children; but the plaintiff, who is a nephew and stepson,-brings this action on behalf 'of himself and all her other nearest living relatives.

The defendants, except Hartley, who is the sculptor engaged to execute the statue, are members of the “Woman’s Memorial Fund Association,” which has undertaken to raise money by public subscription for a life-size statue of Mrs. Schuyler, to be designated as “ The Typical Philanthropist,” and has publicly announced its intention of placing this statue on public exhibition at the Columbian Exposition to be held in Chicago in 1893, as a companion piece to a bust of the well known agitator, Susan B. Anthony, which bust is to be designated as the “ Typical Reformer.”

Neither Mrs. Schuyler in her lifetime, nor her husband after her death, knew or consented to the project; and in view of the attitude assumed by plaintiff on behalf of her nearest living relatives, it must be concluded that so far as the family is concerned, the project- is unauthorized.

The defendants, however, contend that irrespective of the wishes of the family, they have the right to commemorate her life and worth by a suitable monument, and to that end, to receive subscriptions from such of the public as are disposed to give. They therefore contend that this action is not maintainable at all; and if it were, its maintenance is against public policy.

As to the first point, it is urged that an injunction can only be granted in a case where damages could be recovered in an action at law. This objection to the granting of an injunction was raised in Pollard v. Photographic Co. (40 Ch. D. 345), and thus disposed of. “ But the counsel for the defendant did not hesitate- to contend boldly that no injunction could be granted in a case where there could be no injury to property in respect to which damages could be recovered in an action at law.” . . .

“The right to grant an injunction does not depend in any way on the existence of property, as alleged; nor is it worth while to consider carefully the grounds upon which the old court of chancery used to interfere by injunction. , But it is quite clear that, independently of any question as to the right at law, the Court of Chancery always had an original and independent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of confidence or contract, as pointed out by Lord Cottenham in Prince Albert v. Strange (1 McN. & G. 25).”

The claim that the maintenance of the action is against public policy is based upon the argument that a recognition of such a right in relatives might prevent the public from erecting statues to Washington, to Lincoln, or to any other great or distinguished man or woman. I think, however, that the true distinction to be observed is between private and public characters. The moment one voluntarily places himself before the. public, either in accepting public office or in becoming a candidate for office, or as an artist or literary man—he surrenders his right to privacy pro tanto, and obviously cannot complain of any fair or reasonable description or portraiture of himself.

It has not been shown that Mrs. Schuyler ever came within the category of what might be denominated public characters. She was undoubtedly a woman of rare gifts and of a broad and philanthropic nature; but these she exercised as a private citizen, in an unobtrusive way. There is no refutation of the status given her by the complaint, which alleges that, she was in no sense either a public character or even a person generally known either in the community in which she lived or throughout the United States, but that her life was pre-eminently the life of a private citizen. That she was a woman of great refinement and cultivation; that notoriety in any form was both extremely distasteful to her and wholly repugnant to her character and disposition, and that throughout her life she neither sought nor desired it in any way.” Such a person thus described does not lose her character as a private citizen, merely because she engaged in private works of philanthropy. It is sometimes difficult to determine in individual cases when one ceases to be r private and becomes a public character. This, however, does not destroy the value of the distinction, nor the grounds upon which it can be supported. It is equally difficult to apply to individual cases the principle of the reasonableness or unreasonableness of certain acts. As stated, therefore, it not having been shown that Mrs. Schuyler was a public character, her relatives have a right to intervene.

It is true that there is no reported decision which goes to this extent in maintaining the right of privacy ; and in that respect, this is a novel case. But the gradual extension of the law in the direction of affording the most complete' redress for injury to individual rights, makes this an easy step from reported decisions much similar in principle. In a recent article of the Harvard Law Review (Dec., 1890, vol. 4, No. 5), entitled “The Right to Privacy,” we find an able summary of the extension and development of the law of individual rights, which well deserves and will repay the perusal of every lawyer. Among other things, it says: “This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure and profit of life .lay in physical things. Thoughts, emotions and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law, enabled the judges to afford the requisite protection, without the interposition of the legislature. Recent inventions and business methods call attention to the next step which must be taken for the protection of the person and for securing to the individual what Judge COOLEY calls the ‘ right to be let alone.’ Instantaneous photographs and newspaper enterorise have invaded the sacred precincts of private and domestic life ; and numerous mechanical devices threaten to make good the prediction that ‘ what is whispered in the closet shall be proclaimed from the house top.’ For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons ; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.”—Scribner's Magazine, July, 1890. “ The Rights of the Citizen to his Reputation,” by E. L. Godkin, Esq., pp. 65, 67.

Marion Manola v. Stevens and Myers, decided by this court in June, 1890, involved the consideration of the right to circulate portraits. The plaintiff alleged that while playing in the Broadway Theatre, in a role which required her appearance in tights, she was by means of a flash light, photographed surreptitiously and without her consent from one of the boxes of the theatre. It is true there was no opposition to the preliminary injunction being made permanent; but this court issued one to restrain any use being made of the pictures so taken.

Pollard v. Photographic Co., already referred to, is another instance where an injunction was issued against the unauthorized exhibition or sale of photographs or other likenesses of private persons.

These and the celebrated English case of Prince Albert v. Strange (2 DeG. & M. 652 ; s. c. on appeal, 1 McN. & G. 25) are a clear recognition (as shown by the article in the Harvard Law Review, supra) of the principie that the right to which protection is given is the right of privacy.

Upon the facts presented on the motion, and the law applicable thereto, the motion to continue injunction until the trial should be granted.  