
    Hattie Kunz, an Infant, by Catherine B. Rocklein, Her Guardian ad Litem, Respondent, v. Andreas C. Bosselman, Appellant.
    Second Department,
    March 12, 1909.
    Pleading — suit to restrain unauthorized use of portrait — allegation showing acts committed in this State.
    A complaint in an action brought under chapter 132 of the Laws of 1903, to restrain the unauthorized use of the plaintiff’s portrait for trade purposes, which in substance alleges that thg-defendant was engaged in the business of publishing and selling portraits, among other places in the city of New York, and unlawfully, without the consent of the plaintiff, in violation of the statute, used, circulated and offered the portrait for sale for trade.purposes, sufficiently alleges that the acts were committed in this State so as to bring the case within ^ the statute.
    Appeal by the defendant,- Andreas C. Bosselman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of October, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint in an action brought to prevent- the unauthorized publication of plaintiff’s portrait,
    
      Rudolph Marks, for the appellant.
    
      George E. Miner[George D. Graves with him on the brief], for the respondent.
   Rich, J.:

At common law an action would not lie to restrain the publica^ tion .of one’s portrait where it was not alleged that the publication was libelous. (Roberson v. Rochester Folding Box Co., 171 N. Y. 538.) Such publication may now, however, .be restrained in this State under chapter 132 of the Laws-of 1903, which provides that 11A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor,” and 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 sousing his name, portrait or picture, to prevent and restrain the use thereof; and may also, sue and recover damages for any injuries sustained by reason of such use.”

The complaint alleges that the defendant was engaged in the business of publishing and selling portraits, photographs, among other places, at No. 469 Broadway, borough of Manhattan, New York city, under the firm name and style of A. C. Bosselman & Co., and that this defendant publicly, knowingly “and without‘the consent, written or otherwise, of this plaintiff or of her parents or guardians and in spite of the remonstrances and protests of this plaintiff and in violation of Chapter 132 of the Laws of 1903, of the State of Hew York, entitled, ‘ An Act to Prevent the Unauthorized Use-of the Hame or Picture of Any Person for the Purposes of Trade,’ has used, displayed, circulated and offered for sale and for the purposes of trade^ and. is still using, displaying, circulating and offering for the purpose of sale and trade, the portrait and picture of this plaintiff, the said Hattie Kunz.”

The contention of the learned counsel for the appellant, that the complaint is defective, in that it fails to allege that - the acts complained of were committed in the State of Hew York, is without merit. . It is true that it will be necessary for plaintiff to prove upon the trial that her portrait has been published in this State, and it was necessary to allege every fact necessary to bring the case within the statute.

- The complaint, stripped of verbiage, states that the deféndant, engaged in the business of publishing and selling portraits, photographs, pictorial post cards and souvenirs, among other plac.es in the city of Hew Yoi’k, unlawfully and without the consent of this plaintiff, written or otherwise, in violation of chapter 132 of the Laws of 1903, has used, displayed, circulated and offered for sale for the purposes of trade, her portrait and picture. -

In my opinion this amounts to an allegation that the acts complained of were committed in this State. In Rochester R. Co. v. Robinson (133 N. Y. 246), Judge- Maynard said: “A statement is not id be deemed any the less a statement of fact because its ascertainment may depend upon some principles of law applicable to various other1 facts and circumstances (Prickhardt v. Robertson, 4 Civ. Pro. Rep. 112), and it has always been held to be good -pleading under the Code, to state facts according to their legal effect. (Brown v. Champlin, 66 N. Y. 214; Thayer v. Gile, 42 Hun, 268.) ‘Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature ■of the pleader’s claim, are sufficient, if under them, upon a trial of the issue, he would be entitled to. give all the. necessary, evidence to establish his claim.’ (Berney v. Drexel, 33 Hun, 34-37.) An allegation that due proceedings had been taken to establish a mechanics’ lien, was held on demurrer to be good, (McCorkle v. Herrmann, 22 State Rep. 519.)”

While perhaps more scientific care ought to have been exercised in drawing this complaint, it states, nevertheless, a cause of action under the statute, and the interlocutory judgment must be affirmed, with costs.

Woodward, Jenks and Miller, JJ., concurred; Gaynor, J., concurred in separate opinion.

Gaynor, J. (concurring):

The place does not need tobe alleged. It was only necessary 'to allege generally the use being made of the plaintiff’s picture witli.out her consent, and leave the place and particulars to the evidence. Such a complaint would not be demurrable on the theory that the place “ might ” be out of the state. It might be and it might not, and either could be proved under the general allegation. The ¿negation of the statute in the complaint is mere verbiage. Because the plaintiff has alleged it the defendant demurs on the theory that the place “may” be outside of the state. Tes, but it may not be; that is for the evidence ; and if out of the state the common law there might sustain the action.

Interlocutory judgment affirmed, with costs.  