Schuyler v. Curtis et al.
SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY
15 N.Y.S. 787; 1891 N.Y.
September, 1891, Decided
PRIOR HISTORY: [**1] At chambers. Action by Philip Schuyler
against Ernest Curtis, Alice Donlevy, and others for an injunction.
Plaintiff moves for the continuance of a preliminary injunction.
Granted.
JUDGES: O'Brien, J.
OPINION: [*787] O'Brien, J. This is a motion for the
continuance of a preliminary injunction restraining the defendants from
proceeding with a project for making and exhibiting a statue of the late
Mrs. George Schuyler, who before her marriage was a Miss Mary M.
Hamilton. Mrs. Schuyler had no children; but the plaintiff, who is a
nephew and step-son, brings this action in behalf of himself and all her
other nearest living relatives. The defendants, except Hartley, who is
the sculptor engaged to execute the statue, are members of the "Woman's
Memorial Fund Association," which has undertaken to raise money by
public subscription for a life-size statue of Mrs. Schuyler, to be
designated as the "Typical Philanthropist," and has publicly announced
its intention of placing this statue on public exhibition at the
Columbian Exposition to be held in Chicago in 1893, as a companion piece
to a bust of the well-known [**2] agitator, Susan B. Anthony, which
bust is to be designated as the "Typical Reformer." Neither Mrs.
Schuyler in her life-time, nor her husband after her death, knew or
consented to the project; and, in view of the attitude assumed by
plaintiff on behalf of her nearest living relatives, it must be
concluded that, so far as the family is concerned, the project is
unauthorized. The defendants, however, contend that, irrespective of the
wishes of the family, they have the right to commemorate her life and
worth by a suitable monument, and to that end to receive subscriptions
from such of the public as are disposed to give. They therefore contend
that this action is not maintainable at all, and if it were, its
maintenance is against public policy.
As to the first point, it is urged that an injunction can only be
granted in a case where damages could be recovered in an action at law.
This objection to the granting of an injunction was raised in Pollard
v. Photographic Co., 40 Ch. Div. 345, and thus disposed of: "But
the counsel for the defendant did not hesitate to contend boldly that no
injunction could be granted in a case where there could be no injury to
property in respect to [**3] which damages could be recovered in an
action at law. * * * The right to grant an injunction [*788] does not
depend in any way on the existence of property, as alleged, nor is it
worth while to consider carefully the grounds upon which the old court
of chancery used to interfere by injunction. But it is quite clear that,
independently of any question as to the right at law, the court of
chancery always had an original and independent jurisdiction to prevent
what that court considered and treated as a wrong, whether arising from
a violation of an unquestionable right or from breach of confidence or
contract, as pointed out by Lord Cottenham in Prince Albert v.
Strange, 1 Macn. & G. 25."
The claim that the maintenance of the action is against public policy is
based upon the argument that a recognition of such a right in relatives
might prevent the public from erecting statues to Washington, to
Lincoln, or to any other great or distinguished man or woman. I think,
however, that the true distinction to be observed is between private and
public characters. The moment one voluntarily places himself before the
public, either in accepting public office, or in becoming a
candidate [**4] for office, or as an artist or literary man, he
surrenders his right to privacy pro tanto, and obviously cannot
complain of any fair or reasonable description or portraiture of
himself. It has not been shown that Mrs. Schuyler ever came within the
category of what might be denominated "public characters." She was
undoubtedly a woman of rare gifts and of a broad and philanthropic
nature; but these she exercised as a private citizen, in an unobtrusive
way. There is no refutation of the status given her by the
complaint, which alleges that "she was in no sense either a public
character or even a person generally known either in the community in
which she lived or throughout the United States, but that her life was
preeminently the life of a private citizen; that she was a woman of
great refinement and cultivation; that notoriety in any form was both
extremely distasteful to her and wholly repugnant to her character and
disposition; and that throughout her life she neither sought nor desired
it in any way." Such a person, thus described, does not lose her
character as a private citizen merely because she engaged in private
works of philanthropy. It is sometimes difficult to determine [**5] in
individual cases when one ceases to be a private and becomes a public
character. This, however, does not destroy the value of the distinction,
nor the grounds upon which it can be supported. It is equally difficult
to apply to individual cases the principle of the reasonableness or
unreasonableness of certain acts. As stated, therefore, it not having
been shown that Mrs. Schuyler was a public character, her relatives have
a right to intervene. It is true that there is no reported decision
which goes to this extent in maintaining the right of privacy, and in
that respect this is a novel case. But the gradual extension of the law
in the direction of affording the most complete redress for injury to
individual rights makes this an easy step from reported decisions much
similar in principle. In a recent article of the Harvard Law Review,
(Dec. 1890, vol. 4, No. 5,) entitled "The Right to Privacy," we find an
able summary of the extension and development of the law of individual
rights, which well deserves and will repay the perusal of every lawyer.
Among other things it says: "This development of the law was inevitable.
The intense intellectual and emotional life, and the heightening [**6]
of sensations, which came with the advance of civilization, made it
clear to men that only a part of the pain, pleasure, and profit of life
lay in physical things. Thoughts, emotions, and sensations demanded
legal recognition, and the beautiful capacity for growth which
characterizes the common law enabled the judges to afford the requisite
protection without the interposition of the legislature. Recent
inventions and business methods call attention to the next step which
must be taken for the protection of the person, and for securing to the
individual what Judge Cooley calls the 'right to be let alone.'
Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life; and numerous mechanical
devices threaten to make good the prediction that 'what is whispered in
the closet shall be proclaimed [*789] from the house-top.' For years
there has been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private persons; and the evil
of the invasion of privacy by the newspapers, long keenly felt, has been
but recently discussed by an able writer." Scribner's Magazine, July,
1890, "The Rights [**7] of the Citizen to his Reputation," by E. L.
Godkin, Esq., pp. 65, 67. Manola v. Stevens, decided by
this court in June, 1890, (not reported,) involved the consideration of
the right to circulate portraits. The plaintiff alleged that while
playing in the Broadway Theater, in a role which required her appearance
in tights, she was, by means of a flash light, photographed
surreptitiously, and without her consent, from one of the boxes of the
theater. It is true there was no opposition to the preliminary
injunction being made permanent; but this court issued one to restrain
any use being made of the pictures so taken. Pollard v.
Photographic Co., already referred to, is another instance where an
injunction was issued against the unauthorized exhibition or sale of
photographs or other likenesses of private persons. These and the
celebrated English case of Prince Albert v. Strange, 2 De
Gex & S. 652, on appeal, 1 Macn. & G. 25, are a clear recognition (as
shown by the article in the Harvard Law Review, supra) of the principle
that the right to which protection is given is the right to privacy.
Upon the facts presented on the motion, and the law applicable thereto,
[**8] the motion to continue injunction until the trial should be
granted.