
    Aida T. Rhodes, Respondent, v. The Sperry and Hutchinson Company, Appellant.
    Second Department,
    June 7, 1907.
    Tort — unauthorized use of picture for trade purposes — evidence — relation of photographer to defendant immaterial — damages.
    In an action brought under chapter 133 of the Laws of 1903.to recover for the unauthorized use of the plaintiff’s photograph, it is not error to refuse to permit the photographer who furnished the photographs to the defendant to testify that, in his. opinion, he made the exhibit, when it has already been judicially determined that the defendant was displaying, the photographs for advertising purposes.
    Nor is it error to reject evidence that the photographer made a contract with the defendant whereby he was allowed to display his pictures, for such contract cannot qualify the defendant’s own act in relation to the plaintiff.
    Under the circumstances, although the plaintiff has suffered no injury to reputation or character, and has not been personally humiliated by the display of her picture, a Verdict of §1,000 is not excessive.
    Appeal by the defendant, The Sperry and Hutchinson Company, •from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the. 30th day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the- 14th day of December, 1906, denying the defendant’s: motion for a new trial' made upon the minutes. .■
    
      John Hall Jones, for the appellant.
    
      Thomas B. O'Brien, for the respondent.
   Jenks, J.:

This action is brought under chapter 132 of the Laws of 1903, entitled-.“An act to prevent the 1 unauthorized use of the name or picture of any perspn for the purposes of trade.” In June, 1904, the plaintiff sat in various poses for her photograph to Mr. Young. Sim accepted and paid for some of them. In November, 1904, Mr: Young made a contract with the • defendant whereby he agreed to take photographs for collectors Of the defendant’s trading stamps.The defendant,, who was a 'promoter of this1 scheme of trade, kept an office in West 23d street ip the borough of .Manhattan, whereat it displayed specimens of the work of the various tradesmen who were associated with this scheme. There was. a wall-case and a counter showcase in the office and therein were displayed various photographs, the work-off Mr. Youiig, with a placard of his calling- and place of business.. There were about- 40 photographs .furnished.by Mr. Young. ■ Among them were several photographs 1 of the plaintiff.— one;in the wallcase and two in the showcases-This, office was visited, daily by many people. ■ The plaintiff never consented in writing or otherwise to this exhibition: The plaintiff gained an interlocutory judgment after'trial at Special Term, which was affirmed by us. (114 App. Div. 920.) Thé question of dam-' ages was thereafter tried before a- jiffy, who returned a verdict of $1,000. - This appeal is from- the' final, judgment -enjoining the defendant from use of the photographs -for trade or advertisement, and awarding such damages. The appellant contends (1) that there is no evidence that the photographs were exhibited by the defendant for any purpose; (2) that there were errors in the rulings of the court ; (3) that the damages are excessive, and (4) that the statute is unconstitutional. The 1st and 4th propositions' were specifically ' presented upon the former appeal, and I need not consider them. There remain, then, for consideration the contentions (1) that the court erred in its rulings, and (2) that the damages are excessive.

1. Three rulings are criticized, (a) The court refused to permit a question to Mr. Young whether he had exhibited the photograph in the shop of the defendant. The Special Term, whose judgment we affirmed ut supra, found that the defendant was using, exhibiting and displaying the pictures or photographs of the plaintiff. for advertising purposes. Whether Mr. Young in liis- opinion had made the exhibition did not materially affect the act of the defendant or its liability therefor, (b) The court refused under objection to permit the question whether Mr. Young made a contract with the defendant whereby he was allowed to display his pictures. Whether or not there was a contract between Mr. Young and the defendant could not qualify the defendant’s own act in its relation to the plaintiff. And, moreover, the evidence is that the defendant had issued 3,000 orders on Mr. Young which were in á large measure due to this exhibition in the office of the defendant. Further, the defendant was permitted to show that Mr. Young caused the photograph to be put in the frame, and that his servant hung them in the defendant’s shop, (c) As to the third question, it suffices that the answer is upon the record with full force.

2. It seems to me, however, that the damages are excessive. The learned court charged the jury that they could give exemplary damages, and as there is no indication to the contrary in the verdict I cannot say that the verdict does not embrace both kinds of damages. It is true that in actions of willful tort damages may be awarded for mental distress, humiliation and the mortification alone. (Preiser v. Wielandt, 48 App. Div. 569; Smith v. Leo, 92 Hun, 242.) The plaintiff has testified that this act complained of humiliated ” her, made her nervous ” and “ upset ” her, and such testimony might naturally be credited by a jury.' And the circumstances are somewhat different from a'display by a photographer in his own show window. For these photographs, though shown as specimens of a photographer’s art, were exhibited in the promotion of a catch-penny scheme, somewhat in the nature of giving a customer more than the same money would obtain at ordinary purchase. That difference may be illustrated by a bit of testimony in the case.. The plaintiff testifies that a-womam relative (evidently “ a candid friend”) came to her, “kind of laughed- satirically,.and she ■ said, I saw your picture in Sperry’s trading-stanrp ■ store; that is very funny.’ ” On the other hand, the ;act complained of in no way reflected upon the character or reputation of the plaintiff, as ■would a slander or libel, or personally humiliated her in the pres: fence of other's. It does not appear that her qficture was associated with other pictures which were objectionable because of the appearance. thereof or of the character or standing of the subjects. And the plaintiff is quick to admit that neither her reputation nor social standing-has been affected in the slightest degree. I am justified in the conclusion that. the measure of compensation for. the -injury need not be very large.- Exemplary damages are expressly afforded .by the statute if the -defendant shall have “ knowingly ” used the portrait or picture. Obviously “ knowingly ” means - if' .the. offender knows that the portrait or picture is that of a living person. Ho question was raised as to this feature of the statute and the; evidence is clear enough that the defendant ■ made, the display after it had been informed that-the picture was that of a living person. The-' offense, though within the purview'of the statute, is not as flagrant as if the defendant had knowingly displayed t-he. picture -to exploit a brand of cigars, or an articlé of dress or 'some-food product so that the picture ás part of a distinctive label might, be distributed broadcast for display in all kinds of public places or shops. The defendant might well have supposed- that as displays- of photographs- in photographers’^ show- ■ cases were usual, that there would-be no objection to this display, without the nicety to-.draw a distinction againstfits own .calling that others: might naturally see. So that, .really the main offending which called fer tile imposition of exemplary damages was in the. continuance óf the display after the husband of the. plaintiff remonstrated with it. That course was mot in defiance, for the: plaintiff’s husband and aiiother Mfitness testify that the defendant’s, manager expressed .his regret, and ipromised to notify Hr. .Young immediately to replace the .pictures-With others. There is: some.,evidence that the '.defendant intended- or; sought-to coin-ply with the-request. .The . object of'exemplary idamages.is.m.et to compensate the plaintiff, but rather to punish the defendant.¡and .to deter it. and. others from. like acts. (Hamilton v. Third Avenue R. R. Co., 53 N. Y. 25.) Considering, then, both elements, of damage as embraced in the verdict, I think that full justice will be meted out if the damages are reduced to $300. My brethren do not concur in my views as to. a reduction, and, therefore, the order and judgment are affirmed, with costs.

Woodward, Hooker, Gaynor and Rich, JJ., concurred except. as to the recommendation for a reduction of the verdict.

Judgment and order affirmed, with costs. •  