
    Harry F. Porter, Respondent, v. The American Tobacco Company, Appellant.
    Second Department,
    November 18, 1910.
    Pleading—reply to separate defense by way Of avoidance —discretion of court — action to recover damages for unauthorized use of portrait.
    The Appellate Division will not interfere with the discretion of the Special Term in denying a motion made under section 516 of the Code of Civil Procedure to compel the plaintiff to reply to a separate defense by way of avoidance unless a clear case for such interference be presented.
    As in an action under section 51 of the Civil Rights Law to recover damages for an unauthorized use of the plaintiff’s portrait for advertising'purposes the plaintiff must allege and prove that the defendant made use of the portrait without procuring the written consent of the plaintiff, the action being wholly statutory, the plaintiff should not be required to reply to a separate defense by way of avoidance, alleging that the plaintiff gave a written consent to the use of his portrait for advertising purposes.
    Appeal by the defendant, The American Tobacco Company, from an order of the Supreme, Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of September, 1910, denying the defendant’s motion to compel the plaintiff to reply to a separate defense set up in the answer.
    
      James T. Kilbreth (Henry G. Schackno with him on the brief], for the appellant.
    
      Walter Jeffreys Carlin, for the respondent.
   Woodward, J. :

The plaintiff brings this action to secure a perpetual injunction forbidding the defendant to make use of the plaintiff’s name and .picture for business purposes, and for damages for such use. The complaint alleges that the defendant “ wilfully, knowingly and without the written or oral consent of plaintiff, used the name and. picture or portrait of plaintiff, a living person, for advertising purposes and for the purposes of trade in the State of blew York and elsewhere, from the year 1909 to the present time and still continues to so use plaintiff’s name and picture,” and this is the gravamen of the action, though other matters are alleged in support of the claim for damages. The defendant denies the mater rial allegations above quoted, and sets up a separate and distinct defense, “ that on or about the 5th day of July,- 1909, and prior to the use by this defendant of the name, portrait or picture of the plaintiff for advertising purposes or for the purposes of trade, the plaintiff made, executed and delivered a consent in writing as follows,” setting out a written consent without date. The plaintiff did not reply to this alleged defense, and the defendant moved the court for an order directing the plaintiff to reply under the provisions of section 516 of the Code of Civil Procedure. The learned justice before whom the motion was made denied the same, the defendant appealing from such order. . ,

Section 516 provides that “ where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.” The matter is one going peculiarly to the discretion of the' court which entertains the motion, and, while it is not beyond the power of this court to interfere, we apprehend that a, clear case should be presented to warrant this court in overruling an order of this character. In the case now before us the statute which alone gives the right of action, for none existed at common law (Roberson v. Rochester Folding Box Co., 171, N. Y. 538), provides that'“Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action .in the Supreme. Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof.” (Civil Eights Law [Consol. Laws, chap. 6; Laws of 1909, chap. 14], § 51.) The action is statutory and the plaintiff must; by pleading and proof, bring the action within the terms and conditions of the statute (Lewis v. Howe, 174 N. Y. 340, 343, and authorities there cited); he must, therefore, plead and prove that the defendant is making use of his name or picture for advertising or business purposes without having first procured the written consent of the plaintiff to make such use of the same. The plaintiff has no cause of action whatever unless he proves that the defendant is making use of his name or picture for advertising or trade purposes without his written consent; that is an essential part of his cause of action, and it maybe questioned whether the alleged written consent of the plaintiff to the American Lithographing Company and its customers is “ new matter, constituting a defence by way of avoidance.” An avoidance ” in pleading is defined to be the introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. (3 Am. & Eng. Ency. of Law [2d ed.], 523, and authorities cited in notes.) Here the defendant denies that it has made use of the plaintiff’s name or picture without his written consent; it raises an issue as to the facts alleged, and places the burden of establishing the fact upon the plaintiff. Its alleged new matter does not avoid the plaintiff’s right to recover; it takes from him his cause of action, and that can all be fully and fairly brought out upon the trial of the issue of whether the defendant has made use of the plaintiff’s ■name or picture without his written consent. The plaintiff must affirmatively prove his case, subject to the defendant’s right of cross-examination, and it is difficult to see how any end of justice would be promoted by forcing the plaintiff to reply to matter which does not constitute a defense by way of avoidance, but by way of destroying absolutely the causé of action.

The order appealed from should be affirmed.

Hirschberg, P. J., Jenks, Thomas and High, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  