Callas v. Whisper, Inc.

Full title: ELIZABETH CALLAS, an Infant, by Her Guardian ad Litem, PAUL CALLAS…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 25, 1951

278 App. Div. 974 (N.Y. App. Div. 1951)

Opinion

June 25, 1951.

In an action to recover damages under section 51 Civ. Rights of the Civil Rights Law, for an unauthorized publication of plaintiff's photograph as part of the illustrations of a magazine article, order granting respondents' motion, under rule 106 of the Rules of Civil Practice, to dismiss the complaint for legal insufficiency and the judgment entered on the order, affirmed, without costs. No opinion.

Carswell, Adel, Sneed and Wenzel, JJ., concur;

Nolan, P.J., dissents and votes to reverse and to deny the motion, with the following memorandum:

The motion is to dismiss for insufficiency of the complaint, which alleges that the publication was made by defendants in their business and for profit and commercial purposes. The question should not be decided on the pleading. (Cf. Sutton v. Hearst Corp., 277 App. Div. 155.) [ 198 Misc. 829.]