Opinion
January 28, 1938.
Appeal from Supreme Court of New York County.
Francis B. Delehanty, Jr., of counsel [ Edward C. Bailly with him on the brief; Miller, Owen, Otis Bailly, attorneys], for the appellant.
Arthur Moynihan of counsel [ William R. Covington with him on the brief; Moynihan McKeown, attorneys], for the respondent.
Present — MARTIN, P.J., GLENNON, DORE and CALLAHAN, JJ.
The action is one for damages for the unauthorized use of plaintiff's name in violation of sections 50 Civ. Rights and 51 Civ. Rights of the Civil Rights Law. The statute requires that written consent first be obtained in order to justify the use of one's name or picture for the purposes of trade. Defendant pleads as a separate and complete defense that consent was given by a course of conduct, and seeks to assert an estoppel based on such conduct. It repeats the facts so pleaded in an additional partial defense in mitigation of damages. In view of the express statutory requirement for written consent, we deem the matter alleged insufficient as a complete defense. Appropriate allegations of fact in mitigation of damage may be asserted as a partial defense.
The order should be reversed, with twenty dollars costs and disbursements, and the motion granted, with leave to the defendant to serve an amended answer within ten days from service of the order hereupon entered, with notice of entry thereof, on payment of said costs.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion granted, with leave to the defendant to serve an amended answer within ten days after service of order upon payment of said costs.