Riddle v. MacFadden

• Decision Date: 14 March 1911
• Citation: 94 N.E. 644,201 N.Y. 215
• Parties: RIDDLE v. MacFADDEN.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 215

94 N.E. 644

RIDDLE

v.MacFADDEN.

Court of Appeals of New York.

March 14, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Felicite S. Riddle against Bernard A. MacFadden. From a judgment of the Appellate Division (130 App. Div. 898,115 N. Y. Supp. 1142) affirming a judgment on a verdict for plaintiff, defendant appeals. Dismissed.

See, also, 197 N. Y. 558, 91 N. E. 1119.

The appeal from the judgment coming on for argument the respondent moved to dismiss the appeal on the ground that the Court of Appeals has no jurisdiction to entertain the same in the absence of a certificate by the Appellate Division that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals under subdivision 2 of section 191 of the Code of Civil Procedure or without having obtained in lieu thereof an allowance of the appeal by a judge of this court .

Thomas E. O'Brien, for the motion.

Paris S. Russell, opposed.

WILLARD BARTLETT. J.

This action was brought for an injunction and to recover damages under chapter 132 of the Laws of 1903 entitled ‘An act to prevent the unauthorized use of the name or picture of any person for the purposes of trade.’ The issues on which the plaintiff based her right to equitable relief were tried at Special Term where an interlocutory judgment was rendered in favor of the plaintiff awarding an injunction against the appellant and directing an assessment of damages before a jury at Trial Term. Upon such assessment the jury rendered a verdict for the plaintiff in the sum of $3,000. Final judgment was thereupon entered from which an appeal was taken to the Appellate Division, where it was unanimously affirmed. A further appeal has now been taken to this court without the certificate from the Appellate Division provided for in subdivision 2 of section 191 of the Code of Civil Procedure or any allowance of the appeal by a judge of the Court of Appeals.

The respondent has moved to dismiss on the ground that the suit is an action to recover damages for a personal injury and hence that such certificate or allowance is indispensable.

In disposing of this motion, it should be noted that a stipulation appears in the record to the effect that the appeal in so far as it includes an appeal from the interlocutory judgment (which awarded the injunction) ‘be withdrawn and that the review on appeal be limited to the review of the questions presented upon the assessment of damages at Trial Term.’ This stipulation would limit us to a consideration of the strictly legal aspects of the case as distinguished from the plaintiff's right to equitable relief under the statute for the unauthorized invasion of her right of privacy.

[1] We are of opinion that an action under chapter 132 of the Laws of 1903 (now sections 50 and 51 of the Civil Rights Law) in which the plaintiff seeks to recover damages is an action to recover damages for a personal injury within the meaning of subdivision 2 of section 191 of the Code of Civil Procedure. In the long section of the Code containing miscellaneous general definitions and rules of construction we find the following definition of the term ‘personal injury’: ‘A ‘personal injury’ includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.' Code Civ. Proc. § 3343, subd. 9.

[2] Independently of this statutory definition, it is well settled that an injury to the person within the meaning of the law does not necessarily involve the element of personal contact with the person complaining of the injury. The alienation of a husband's affections, the seduction of a man's daughter, and the breach of a promise to marry are examples of personal injuries of this character. An action by a wife to recover damages for the alienation of her husband's affections was held to be an action for a personal injury in Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17,6 L. R. A. 553. An action to recover damages for fraud by a defendant in inducing the plaintiff to marry him was declared to be an action for a personal wrong not affecting the plaintiff's property or estate in Price v. Price, 75 N. Y. 244, 31 Am. Rep. 463. The character of an action to recover damages for breach of promise of marriage came before this court for consideration in Wade v. Kalbfleisch, 58 N. Y. 282, 286,17 Am. Rep....