Dallesandro v. Henry Holt & Co.

• Decision Date: 22 October 1957
• Citation: 4 A.D.2d 470,166 N.Y.S.2d 805
• Parties: John DALLESANDRO, Plaintiff-Appellant, v. HENRY HOLT AND COMPANY Incorporated (sued herein as Henry Holt and Company, Inc.), Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 805

166 N.Y.S.2d 805

4 A.D.2d 470

John DALLESANDRO, Plaintiff-Appellant, v. HENRY HOLT AND COMPANY Incorporated (sued herein as Henry Holt and Company, Inc.), Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Oct. 22, 1957.

Irving Kwitter, New York City, of counsel (Ira Bartfield, Brooklyn, with him on the brief; Irving Kwitter, New York City, attorney), for plaintiff-appellant.

Joseph R. Crowley, New York City, of counsel (William E. Stockhausen, New York City, with him on the brief; Satterlee, Warfield & Stephens, New York City, attorneys), for defendant-respondent.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and FRANK, JJ.

PER CURIAM.

Defendant displayed a picture on the cover of 'Waterfront Priest', a book it published, that showed Father Corridan, the subject of the book, in conversation with plaintiff, a longshoreman and rank-and-file union member. We do not believe the use of this picture comes within the proscription of Sections 50 and 51 of the Civil Rights Law.

A picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute (Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485, 488) unless it has no real relationship to the article (Thompson v. Close-Up, Inc., 277 App.Div. 848, 98 N.Y.S.2d 300), or unless the article is an advertisement in disguise (Griffin v. Medical Society of State of New York, 7 Misc.2d 549, 11 N.Y.S.2d 109). It makes no difference whether the article appears in a newspaper (Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382); a magazine (Oma v. Hillman Periodicals, Inc., 281 App.Div. 240, 118 N.Y.S.2d 720); a newsreel (Redmond v. Columbia Pictures Corp., 277 N.Y. 707, 14 N.E.2d 636); on television (Gautier v. Pro-Football, Inc., supra); in a motion picture (Merle v. Sociological Research Film Corp., 166 App.Div. 376, 152 N.Y.S. 829); or in a book (Damron v. Doubleday, Doran Co., Inc., 133 Misc. 302, 231 N.Y.S. 444, affirmed 226 App.Div. 796, 234 N.Y.S. 773). The test of permissible use is not the currency of the publication in which the picture appears but whether it is illustrative of a matter of legitimate public interest (Molony v. Boy Comics Publishers, Inc., 277 App.Div. 166, 170, 98 N.Y.S.2d 119, 122; Sidis v. F-R Publishing Corporation, 2 Cir., 113 F.2d 806, 138 A.L.R. 15, certiorari denied 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462).

The book here involved purports to be the true story of a priest's 'one-man crusade against gangsterism and terror on the New York waterfront', and the book jacket showing the priest in earnest conversation with a longshoreman is an attempted pictorialization of the theme. 'It is immaterial that its manner of use and placement was designed to sell the article so that it might be paid for and read' (Oma v. Hillman Periodicals, Inc., supra, 281 App.Div. at page 244, 118 N.Y.S.2d at page 724). See also Humiston v. Universal Films Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752. The offending book jacket is annexed to the complaint, and since it appears therefrom that the use of the picture is not actionable under the Civil Rights Law, the complaint was properly dismissed without leave to amend (Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532, affirmed 278 App.Div. 974, 105 N.Y.S.2d 1001, affirmed 303 N.Y. 759, 103 N.E.2d 543). The order appealed from should be affirmed.

Judgment affirmed with costs to respondent.

Order filed.

All concur except PECK, P. J., who dissents.

PECK, Presiding Justice (dissenting).

The defendant's support of the decision below, dismissing the complaint, rests largely upon the decision of this court in Oma v. Hillman Periodicals, Inc., 281 App.Div. 240, 118 N.Y.S.2d 720, in which Mr. Justice Callahan and I dissented. While I adhere to the view expressed in that dissent, I would not advance it again against the authority of the majority opinion if I thought the decision there was controlling here. There is undoubtedly a close resemblance between the two cases and perhaps the only difference is that the Oma case dealt with an article of current interest in a periodical while the present case relates to a book. I think there is a...