
    Mary Clarissa Almind, Appellant, v. Sea Beach Railway Company, Respondent.
    Second Department,
    May 16, 1913.
    Civil rights—use of picture without written consent — injunction.
    Where in a suit involving the use of plaintiff’s picture for alleged “ advertising purposes or for the purposes of trade ” in violation of section 50 of the Civil Rights Law, it appears that the picture of the plaintiff and her child was used by the defendant without the plaintiff’s written consent for the purpose of instructing intending passengers on defendant’s cars how to enter and alight therefrom with a greater degree of safety, an injunction restraining the use thereof should be granted.
    Burr and Carr, JJ., dissented.
    
      Appeal by the plaintiff, Mary Clarissa Almind, from a judgment of 'the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Kings on the 31st day of December, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.
    
      Thomas E. O’Brien [Louis Weinberger with him on the brief], for the appellant. .
    
      James W. Carpenter [George D. Yeomans with him on the brief], for the respondent.
   Thomas, J.:

This action involves the use of the plaintiff’s picture for alleged “ advertising purposes or for the purposes of trade,” in alleged violation of section 50 of the Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14). The action is brought pursuant to section 51 of said statute (as amd. by Laws of 1911, chap. 226). The evidence shows the presence of the plaintiff, her six-year-old child and her sister-in-law at a place where a picture was about to be taken and later used to teach passengers a self-protecting way to enter and leave a car. The evidence is that the purpose was explained to her and that she was invited to enter the car to become a part of the picture. She admits her voluntary entry by invitation, but denies that the intended use of the picture was revealed, and insists that she understood that the man and woman engaging in the maneuvers were bride and groom on their honeymoon. The statement is incredible. The trial court found that she knew the purpose of the picture and willingly made herself a part of it. But I think that such evidence of her understanding and consent is not sufficient, under the statute, to authorize the defendant; otherwise any person making a picture of one willingly sitting for it could use it for advertising by proving that he disclosed the purpose and that she either consented or did not demur. So parol consent is made to take the place of the written consent required by the statute. The picture was taken for advertising but not for trade purposes. The object was to teach those who did or should travel on cars the way to enter and to alight with a greater degree of safety. Such education has an individual value for the traveler on the car, an economic value for the State and a possible and indirect pecuniary value for the carrier. But the carrier is not soliciting more persons to patronize it and thereby adding to its trade or profits, but rather it is showing that whoever uses the methods illustrated would escape harm. If a traveler should alight in a way that in itself begets danger the risk of it should fall on him and not.on the carrier, and I do not perceive how the carrier was forefending itself from just contingent liability. If such an element of gain be present, it is remote in a legal sense and negligible. But trade is essentially for gain, and the absence of it seems so far to withdraw the act in question from the operation of the statute. The next inquiry is whether the exhibition of the picture was for advertising purposes.” It would make the statute useful but greatly limit it, to confine the advertising to matters of vocation or even avocation, where there would be pecuniary return or expectation of it. If an advertisement were essentially for unselfish purposes, the portrait of a person not giving the statutory consent could not be displayed. The right of privacy under the statute cannot be invaded for purposes purely informative or redemptive, whether the altruist be entirely a charitable envoy or a railway company. No cause is so exalted that it may allure by exposing the portrait of a person to the public gaze. The statute does not mean that the grocer may not without written consent use another’s picture to advertise his goods, but that a reformer may without such consent expose it to call attention to ways and means of reformation. There is no escape from the conclusion that the defendant has infringed technically the plaintiff’s rights under the statute, and the judgment should be reversed and judgment had restraining the use of the picture, with costs.

Jenks, P. J., and Rich, J., concurred; Burr and Carr, JJ., dissented.

Judgment reversed and judgment directed restraining the use of the picture, with costs.  