Philip Schuyler, Respondent, v. Ernest Curtis et al., Alice Donlevy
et al., Appellants
Court of
Appeals of New York
147 N.Y.
434; 42 N.E. 22; 1895 N.Y. LEXIS 970
October 22,
1895, Argued November 26, 1895, Decided
PRIOR HISTORY: [***1]
Appeal from judgment of the General Term of the Supreme Court in the
first judicial department, entered upon an order made June 22, 1893,
which affirmed a judgment in favor of plaintiff granting a perpetual
injunction entered upon a decision of the court on trial at Special
Term.
DISPOSITION: Judgment reversed.
SYLLABUS: The plaintiff brought this action against the
defendants to restrain them from making a statue or bust of the late
Mrs. Mary M. Hamilton Schuyler in any form, and from causing the same to
be made or exhibited; also from receiving or soliciting subscriptions
for the purpose of defraying the cost and expenses of making such bust
or procuring it to be made, and also to restrain them from making use of
the name of Mrs. Mary M. Hamilton Schuyler or circulating any
description of her in any way in connection with the "Woman's Memorial
Fund Association" mentioned in the record. The findings of the court
upon the trial of the action state what is material as to the facts upon
which the action is based, while the conclusions of law show the theory
upon which relief has been granted.
The court has found among other facts the following: The plaintiff
is [***5] the only son of George L. Schuyler, late of the city of New
York, and of Eliza Hamilton Schuyler, his wife, who was a daughter of
the late James A. Hamilton and granddaughter of Major-General Alexander
Hamilton. Mrs. Schuyler died in the year 1863, and plaintiff's father
for his second wife married Mary Morris Hamilton, a younger sister of
his first wife. The second Mrs. Schuyler died in May, 1877, leaving no
children. Her husband died in July, 1890, and her only brother died in
December, 1889. The only immediate relatives, now living, of the second
Mrs. Schuyler are certain nephews and nieces, an uncle and an aunt, all
of whom approve of the commencement and maintenance of this action. The
defendants other than Hartley are members of a voluntary and
unincorporated association in New York city named "The Woman's Memorial
Fund," and its avowed object was the completion of two sculptures to
honor "Woman as the Philanthropist" and "Woman as the Reformer," to be
placed on exhibition at the Columbian Exposition of 1893. This
association in May, 1891, publicly announced that "as the typical
Philanthropist, Mary M. Hamilton, who died Mrs. G. L. Schuyler, has been
chosen as the subject [***6] of the statue," and about that time the
association began to send printed circulars to that effect and to
solicit subscriptions for the purpose of carrying out this project, and
public announcement was made that a contract had been entered into with
the defendant Hartley, a professional sculptor, for the execution of a
statue of Mrs. Schuyler to be placed on exhibition as stated.
It was also announced that the association intended to place the statue
on exhibition at the same time and place as a statue of Miss Susan B.
Anthony, whom the association had chosen as the subject of the statue to
be designated the "Representative Reformer." George L. Schuyler, the
husband, and Alexander Hamilton, the brother, of the deceased Mrs.
Schuyler, were at the time when the association claims to have
originated the plan for making the statue living in New York, but no
application was made to either for his consent to the making of the
statue and neither of them ever authorized any one to make it.
Subsequent to the deaths of the husband and brother of Mrs. Schuyler,
and in May, 1891, the plaintiff first heard of the contemplated action
of the defendants, and he, in behalf of himself and also of [***7] the
other relatives of Mrs. Schuyler, requested the defendants to abandon
the making of such statue and the circulation of subscription papers for
the purpose of collecting money towards defraying the cost and expenses
of procuring the statue. The defendants denied the right of the
plaintiff to prevent the making of the statue or to prevent their
soliciting subscriptions throughout the country for that purpose, and
they continued to circulate such subscription papers widely throughout
the United States, and they were printed in some of the New York city
newspapers at the instance of the defendants.
These acts, the court finds, have exposed the name and the memory of
Mrs. Mary M. Hamilton Schuyler to adverse comment and criticism of a
nature peculiarly disagreeable to her relatives and have caused
disagreeable notoriety for which they are in no way responsible; that
such comment has been made in the public prints and elsewhere; that
annoyance and pain have been caused thereby to the plaintiff and to the
immediate relatives of Mrs. Schuyler; that he and they have been greatly
distressed and injured thereby and by the notoriety incident thereto;
and that such notoriety and adverse comment [***8] and criticism are
wholly due to the unauthorized acts of the defendants. As conclusions of
law it was found that the acts of defendants constituted an unlawful
interference with the right of privacy, and that the surviving relatives
of the deceased Mary Schuyler were specially injured by the acts.
It was, therefore, adjudged that the plaintiff was entitled to judgment
perpetually enjoining the defendants from making or causing to be made a
statue of Mrs. Schuyler in any form and from exhibiting any statue of
her and from receiving subscriptions for the purposes stated.
Upon the trial evidence was given upon the part of the defendants which
showed that Mrs. Schuyler in her lifetime was a very charitable woman;
was a member of many private charitable associations; that in 1852 she
was one of the founders of the School of Design for Women in the city of
New York and one of its managers until it was adopted by the Cooper
Institute; that some of the female defendants were members of the School
of Design for Women and had frequently met Mrs. Schuyler at its meetings
and were on terms of some intimacy with her so far at least as her
interest in and her attendance at the meetings of the [***9] above
association called for; that the "Ladies Art Association" was founded
about 1867, partly at the suggestion of Mrs. Schuyler made to some of
the defendants who were members of the School of Design for Women, the
object of the association being to help ladies support themselves and to
give them adequate education in art and design, and the association is a
reputable and well-known organization in New York city, and Mrs.
Schuyler evinced considerable interest in it during her life; that the
"Woman's Memorial Fund Association" was composed largely of members of
the "Ladies Art Association," and it was publicly announced that the
statue in question was to be placed after the exposition in the rooms or
studio of the association, there to remain permanently; that Mrs.
Schuyler was prominently identified with the U. S. Sanitary Commission
during the late war; and also that she was one of the vice-regents for
the state of New York of the Mt. Vernon Association which was organized
for the purpose of securing the preservation of the home of Washington.
These several facts were proved and were uncontradicted, and the
defendants requested the court to find them, which request was
refused [***10] on the ground that they were immaterial.
JUDGES: Peckham, J. Gray, J. (dissenting). All concur with
Peckham, J., for reversal, except Gray, J., who reads for affirmance.
OPINION BY: [***17] PECKHAM
OPINION: [*442] [**24] This action is of a nature somewhat
unusual and depends for its support upon an application of certain
principles which are themselves not very clearly defined or their
boundaries very well recognized or plainly laid down. Briefly described
the action is founded upon an alleged violation of what is termed the
right of privacy. The alleged violation of this right, so far as regards
the plaintiff, consists of an attempt on the part of certain reputable
women, among them the female defendants herein, without the sanction of
the plaintiff or other immediate members of the family, to do honor to
the memory of a woman who was the aunt of the plaintiff, and who, at the
time of the commencement of this action, had been dead for fourteen
years. A statue, of a most costly and meritorious kind, to be made out
of appropriate material and by an artist of the first rank, was
contemplated [*443] as the means of doing this honor to the memory of
the deceased relative of the plaintiff.
It may, perhaps, be somewhat difficult for the ordinary mind to perceive
any reason for the plaintiff's distress arising out of this contemplated
action by women of respectability [***18] who are desirous of honoring
the memory of a woman whom they regarded in life as a friend and
benefactor of their sex. Objection has, however, been made to the
carrying out of this project, and we must examine this record in order
to see whether there is any evidence of a violation of this alleged
right of privacy belonging to the plaintiff. In order to determine
whether there has been a violation of the right it is necessary to know
something about the right itself and its proper limitations. It is not
necessary, however, in the view which we take of this case, to attempt
to lay down precise and accurate rules which shall apply to all cases
touching upon this alleged right. If the facts in any case fail to
furnish any clear or sure foundation for a reasonable man to claim that
any injury to his feelings has been or would be caused by the action
taken, or to be taken, by a defendant, then we can at least say in such
a case that there has not been and cannot be any such real mental
distress or injury as a court of equity ought to recognize as within
judicial relief. For the purpose we have in view it is unnecessary to
wholly deny the existence of the right of privacy to which the [***19]
plaintiff appeals as the foundation of his cause of action. It may be
admitted that courts have power in some cases to enjoin the doing of an
act where the nature or character of the act itself is well calculated
to wound the sensibilities of an individual, and where the doing of the
act is wholly unjustifiable, and is, in legal contemplation, a wrong,
even though the existence of no property, as that term is usually used,
is involved in the subject.
The question in this case is whether there has been proved such a
violation of the rights of the plaintiff, even under a most liberal
construction as to the extent of those rights, which a court of equity
ought to take cognizance of.
[*444] We enter upon this examination with an admission for the
purposes of this case that the plaintiff occupies such a relationship to
the deceased that he might maintain an action to enjoin the painting of
a picture or the making of a statue of the deceased which would be
regarded as inappropriate by reasonable people because the use for which
it was destined or the place where it was to be kept was obviously
improper, or because the thing itself, portrait or bust or statue, was
not of that degree [***20] of merit, all the circumstances considered,
which might reasonably and properly be insisted upon by those to whom
the life and memory of the deceased were most dear. Many other cases can
be imagined where the ulterior purpose of the individuals engaged in the
matter would be so manifestly improper, if not illegal, that no statue
or picture of a reputable individual, alive or dead, ought to be
permitted to be made for such purpose. These are merely imaginary cases,
alluded to only for the purpose of accentuating our ideas as to some of
the circumstances in which courts might be called upon to act on the
part of a living relative of one who was long since dead. In the present
case the grounds of the plaintiff's objection are not very many, and
have been stated in the complaint and by the plaintiff on the witness
stand. They are these:
1. The persons concerned in getting up the proposed statue were not the
friends of the plaintiff's deceased aunt and, as plaintiff alleged, did
not know her.
2. They were proceeding with their plan without consulting with the
plaintiff or other immediate members of the Schuyler-Hamilton family and
without their consent to the making of any statue. [***21]
3. The circulars issued by or in behalf of the defendants contained a
statement that Mrs. Schuyler was the founder of or the first woman in
the enterprise for securing the home of Washington, and that this
statement was inaccurate because a prominent woman in South Carolina was
in fact such founder and justly entitled to the honor arising therefrom.
This mistake, it was asserted, had caused adverse comment in the
newspapers [*445] as to the attitude of the family of plaintiff in
permitting such a claim to be made when they must have known it was
without foundation.
4. It was disagreeable to the plaintiff because the making of such a
statue would have been disagreeable and obnoxious to his aunt were she
living. She had, as plaintiff said, a great dislike to have her name
brought into public notoriety of any kind, as she was a singularly
[**25] sensitive woman and of a very retiring nature, anxious to keep
her name from the public prints or newspapers.
5. That plaintiff's aunt had not been personally acquainted with Susan
B. Anthony, and he was quite sure she had not sympathized with or
approved the position taken by Miss Anthony upon the question of the
proper sphere of [***22] woman and her treatment by the law, and it was
disagreeable and annoying to have the memory of Mrs. Schuyler joined
with principles of which she did not approve.
These are substantially all the objections taken by plaintiff regarding
the proposed action of the defendants. The plaintiff in his evidence
said he did not claim that the defendants, in any of their actions or in
any of their published notices, threw any discredit, disgrace or
ridicule upon Mrs. Schuyler's memory, and he did not think they wished
to do so in any way. The chief reason for bringing this action, the
plaintiff avowed, was to establish a principle that the right of privacy
should be respected, and he was willing to bring such an action for the
purpose of maintaining that principle.
After taking all these objections into careful consideration, we cannot
say that we are in the least degree impressed with their force. The
first ground of objection, even if well founded in fact, is not of the
slightest importance. Whether the defendants were friends or not of Mrs.
Schuyler in her lifetime does not seem to us to have any legitimate
effect upon the question. If the motive were to do honor to a good
woman, and [***23] if the work were to be done in an appropriate way,
the relations towards the deceased of those who proposed to render this
mark of honor to her memory as one of [*446] the benefactors of her
sex, would be a matter of very small moment, entitled to no
consideration whatever. No surviving relative, male or female, would
have, in our judgment, the least ground of complaint that an action,
confessedly meant to do honor to the memory of a noble woman, was
proposed by those who in her lifetime had not the honor of her personal
acquaintance or friendship, but whose proposed action was nevertheless
the outgrowth of admiration of her character as a friend and benefactor
of the sex of which she was herself so great an ornament. It appears,
however, that in truth some of the defendants were known to Mrs.
Schuyler personally as members of the same association and interested in
the same objects, and although Mrs. Schuyler was undoubtedly more
socially prominent than any of the defendants claim to be, yet there was
enough personal intercourse between her and some of the defendants to
account for the affection in which her memory is held and for their
desire to give some practical evidence [***24] of their feelings.
The second ground of objection we think is equally untenable. The fourth
ground may properly be considered as a part of it. It is true that these
defendants have assumed to take the preliminary steps leading to the
making of the proposed statue without having consulted with or obtained
the consent of the plaintiff or the other immediate relatives of the
deceased. This may be regarded as the main objection, the others being
but grounds for the refusal of any consent by plaintiff and his
relatives, if such consent had been asked. The whole of the plaintiff's
claim of the right of privacy in this case rests upon the lack of this
consent. It is stated that Mrs. Schuyler was not in any sense a public
character during her life, and consequently had not surrendered to any
extent whatever her own right of privacy. This right, it is claimed, not
having been surrendered by any act of the deceased in her lifetime,
descends unimpaired to her immediate relatives as the proper
representatives of her feelings and her rights. Whatever the rights of a
relative may be, they are not in such a case as this, rights which once
belonged to the deceased, and [*447] which a [***25] relative can
enforce in her behalf and in a mere representative capacity, as, for
instance, an executor or administrator, in regard to the assets of a
deceased. It is not a question of what right of privacy Mrs. Schuyler
had in her lifetime. The plaintiff does not represent that right.
Whatever right of privacy Mrs. Schuyler had died with her. Death
deprives us all of rights in the legal sense of that term, and, when
Mrs. Schuyler died, her own individual right of privacy, whatever it may
have been, expired at the same time. The right which survived (however
extensive or limited) was a right pertaining to the living only. It is
the right of privacy of the living which it is sought to enforce here.
That right may, in some cases, be itself violated by improperly
interfering with the character or memory of a deceased relative, but it
is the right of the living and not that of the dead which is recognized.
A privilege may be given the surviving relatives of a deceased person to
protect his memory, but the privilege exists for the benefit of the
living, to protect their feelings and to prevent a violation of their
own rights in the character and memory of the deceased.
A woman [***26] like Mrs. Schuyler may very well in her lifetime have
been most strongly averse to any public notice, even if it were of a
most flattering nature, regarding her own works or position. She may
have been (and the evidence tends most strongly to show that she was) of
so modest and retiring a nature that any publicity, during her life,
would have been to her most extremely disagreeable and obnoxious. All
these feelings died with her. It is wholly incredible that any
individual could dwell with feelings of distress or anguish upon the
thought that, after his death, those whose welfare he had toiled for in
life would inaugurate a project to erect a statue in token of their
appreciation of his efforts and in honor of his memory. This applies as
well to the most refined and retiring woman as to a public man. It is,
therefore, impossible to credit the existence of any [**26] real
mental injury or distress to a surviving relative grounded upon the
[*448] idea that the action proposed in honor of his ancestor would
have been disagreeable to that ancestor during his life.
We cannot assent to the proposition that one situated as the plaintiff
in this case can properly enjoin such [***27] action as the defendants
propose on the ground that as mere matter of fact his feelings would be
thereby injured. We hold that in this class of cases there must in
addition be some reasonable and plausible ground for the existence of
this mental distress and injury. It must not be the creation of mere
caprice nor of pure fancy, nor the result of a supersensitive and morbid
mental organization, dwelling with undue emphasis upon the exclusive and
sacred character of this right of privacy. Such a class of mind might
regard the right as interfered with and violated by the least reference
even of a complimentary nature to some illustrious ancestor without
first seeking for and obtaining the consent of his descendants. Feelings
that are thus easily and unnaturally injured and distressed under such
circumstances are much too sensitive to be recognized by any purely
earthly tribunal. A proposed act which a court will enjoin because it
would be a violation of a legal right, must, among other conditions, be
of such a nature as a reasonable man can see might and probably would
cause mental distress and injury to any one possessed of ordinary
feeling and intelligence, situated in like circumstances [***28] as the
complainant, and this question must always to some extent be one of law.
If the circumstances be such that it is to a court inconceivable that
the feelings of any sane and reasonable person could be injured by the
proposed act, then it is the duty of the court to say so and to refuse
an injunction which would prevent its performance.
If the defendants had projected such a work in the lifetime of Mrs.
Schuyler, it would perhaps have been a violation of her individual right
of privacy, because it might be contended that she had never occupied
such a position towards the public as would have authorized such action
by any one so long as it was in opposition to her wishes. The fact that
Mrs. Schuyler [*449] is dead alters the case, and the plaintiff and
other relatives must show some right of their own violated, and that
proof is not made by evidence that the proposed action of the defendants
would have caused Mrs. Schuyler pain if she were living. A shy,
sensitive, retiring woman might naturally be extremely reluctant to have
her praises sounded, or even appropriate honors accorded her while
living, and the same woman might, upon good grounds, believe with entire
complacency [***29] and satisfaction that after her death a proposition
would be made and carried out by her admirers to do honor to her memory
by the erection of a statue or some other memorial.
For these reasons we are of the opinion that regarding the facts thus
far discussed, it was not necessary for the defendants to procure the
consent of the plaintiff or other immediate relatives of the deceased.
We think that so long as the real and honest purpose is to do honor to
the memory of one who is deceased, and such purpose is to be carried out
in an appropriate and orderly manner, by reputable individuals and for
worthy ends, the consent of the descendants of such deceased person is
not necessary, and they have no right to prevent, for their own personal
gratification, any action of the nature described.
The third ground of objection is based upon a claim made in the
circulars issued by defendants that Mrs. Schuyler was the founder of the
Mt. Vernon Association, while in truth she was connected with it only as
a vice-regent from this state. There is no assertion that this error of
fact was intentional, and there could obviously be no motive on the part
of the defendants to make any undue or ill-founded [***30] claim on
behalf of their subject. A single line calling their attention to the
fact would undoubtedly have caused an immediate rectification of the
mistake, and of course the removal of any foundation for the slightest
adverse comment from any source as to the conduct of the surviving
members of this family in permitting such a claim to have been made on
behalf of one of its deceased members.
This mistaken statement of the position of Mrs. Schuyler in [*450]
regard to the Mt. Vernon Association contained in the circulars is the
only ground for adverse comment in the newspapers, or for the
disagreeable notoriety complained of by the plaintiff. If corrected all
ground of complaint of that nature would disappear. If not corrected
upon application, the plaintiff would probably not be without a remedy
which would prevent the circulation of such an untruth.
The fourth ground of objection has already been disposed of in treating
of the second. The feelings of the deceased, if she were alive and
confronted with such a proposition to do honor to herself, have no place
in this action, which is founded upon the alleged violation of the
plaintiff's own right of privacy.
The fifth ground [***31] is an equally vague and shadowy one. Whether
Mrs. Schuyler sympathized with the work or the views of Miss Anthony we
must say seems to us utterly foreign to the subject. There was no
proposition looking towards the placing the statues of these two ladies
together as representatives of the same ideas, or as in any way, even
the remotest, united in the same works, or in inculcating the same
principles in regard to the rights of women. The objection seems to rest
wholly upon the proposition that these two proposed statues were to be
exhibited in the same room of a building in the Chicago fair grounds --
one as the representative of a class of women philanthropists and the
other as the representative of a class of women reformers. [**27] The
placing of the statues in the same room for exhibition by the same
association does not in our view tend in the slightest degree to confuse
the identity of Mrs. Schuyler, or to lead in any way to the supposition
that she was in sympathy with or believed in the correctness of the
principles which have been advocated by Miss Anthony.
The fact, if it be a fact, that Mrs. Schuyler did not sympathize with
what is termed the "Woman's Rights" movement [***32] is of no
importance here. The proposed placing of the two statues would, if
carried out, have had no tendency to show that Mrs. Schuyler did so
sympathize. Many of us may, and [*451] probably do, totally disagree
with these advanced views of Miss Anthony in regard to the proper sphere
of women, and yet it is impossible to deny to her the possession of many
of the ennobling qualities which tend to the making of great lives. She
has given the most unselfish devotion of a long life to what she has
considered would tend most for the benefit and practical improvement of
her sex, and she has thus lived almost literally in the face of the
whole world, and during that period there has never been a single shadow
of any dark or ugly fact connected with her or her way of life to dim
the lustre of her achievements and of her efforts. Although we may
utterly fail to sympathize with these efforts or achievements, it is
plain enough that no one will have reasonable ground for objection to
the placing of a bust of his or her own ancestor in the same room with
the bust of such a woman and under such circumstances as were originally
contemplated by these defendants. This ground of objection, [***33]
however, time has itself rendered valueless.
One other ground has been argued before us upon which to sustain this
injunction. It was urged that the proposed statue would be a fraud upon
the public because there was no portrait, likeness or statue of Mrs.
Schuyler accessible to defendants from which any possible likeness of
the deceased could be secured. The idea of an actual likeness was early
abandoned, and it was stated that the statue would be an ideal one and
not a likeness. The court below has not found any fraud and we are not
of the opinion that any was shown.
While not assuming to decide what this right of privacy is in all cases,
we are quite clear that such right would not be violated by the proposed
action of the defendants. The plaintiff's cause of action is, we think,
wholly fanciful. The defendants' contemplated action is not such as
might be regarded by reasonable and healthy minds as in the slightest
degree distressing or tending in the least to any injury to those
feelings of respect and tenderness for the memory of the dead which most
of us possess, and which ought to be considered as a proper subject of
recognition and protection by civilized courts.
[*452] [***34] It is, perhaps, needless, yet we will add that our
decision furnishes, as we think, not the slightest occasion for the
belief that under it the feelings of relatives or friends may be
outraged or the memory of a deceased person degraded with impunity by
any person who may thus desire to affect the living. The rights of such
persons will remain the same after as they were before our present
decision and will be wholly unaffected by it. We simply say that in this
case the defendants have proposed to do nothing which ought to affect
unpleasantly the mental condition of any sound, reasonable and
intelligent man or woman, and, therefore, an injunction ought to have
been refused.
We have looked at the question of the appealability of the judgment, and
are of the opinion that the court has jurisdiction. Nor do we think that
the question is now merely an abstract one because of the fact that it
was the intention of the defendants in causing the statue to be made to
place the same on exhibition in one of the buildings at the Chicago
exposition, now past and gone. That was only one of the purposes of the
defendants. They intended to retain the statue after the exhibition and
bring it back [***35] to New York and place it in the studio of the
Ladies Art Association, a place which so far as the evidence shows is
appropriate for the purpose. This intention is not illegal and might be
properly carried out but for this injunction.
Upon the whole we are of the opinion that the plaintiff has made a
mistake in his choice of this case as an appropriate one in which to ask
for the enforcement of the right of privacy.
The judgment must be reversed as to the parties appealing and the
complaint dismissed as to them, with costs.
DISSENTBY: GRAY
DISSENT: Gray, J. (dissenting). I must emphatically dissent from
the decision of this court that there was no ground shown in this case
for the equitable relief which was granted below. That a precisely
analogous case may not have arisen heretofore, in which the peculiar
power of a court of equity to grant relief by way of injunction has been
exercised, furnishes no [*453] reason against the assumption of
jurisdiction. This equitable jurisdiction of the court is determined by
the particular circumstances of each particular case and depends upon
the existence of a state of facts which demonstrates a wrongful act
performed, or threatened to be [***36] performed, to the prejudice of
some right of property and for which there is no adequate remedy at law.
Upon the findings in this case, I think we are bound to say that the
purpose of the defendants was to commit an act which was an unauthorized
invasion of the plaintiff's right to the preservation of the name and
memory of Mrs. Schuyler intact from public comment and criticism. As the
representative of all her immediate living relatives, [**28] it was
competent for him to maintain an action to preserve them from becoming
public property; as would be the case if a statue were erected by
strangers, for public exhibition under such classification, with respect
to the characteristic virtues of the deceased, as they judged befitting.
I cannot see why the right of privacy is not a form of property, as much
as is the right of complete immunity of one's person. If it is a
property right with reference to the publication of a catalogue of
private etchings and entitled to be protected against invasion, as Lord
Cottenham held in Prince Albert v. Strange, (1 Macn. & G.
25, 47), why is it not such with reference to name and reputation? We
have some illustrations of the exercise [***37] by courts of equity of
their peculiar powers in cases which have been cited, in principle not
unlike this; where the publication of one's letters and the sales of
photographic portraits have been enjoined, besides the case of the
publication of the catalogue referred to. (See Gee v.
Pritchard, 2 Swanst. 402; Prince Albert v. Strange, 2
De G. & Sm. 652; Pollard v. Photog. Co., L. R., 40 Ch. D.
345, and Woolsey v. Judd, 4 Duer, 379.) These decisions
are authority for the doctrine that equity will interfere to prevent
what are deemed to be violations of personal legal rights and the only
limitation upon the application is that the legal right which is to be
protected shall be one cognizable as property. It seems to me [*454]
clear that the jurisdiction of equity is not made to depend upon the
existence of corporeal property and that it is exercised whenever the
complainant establishes his claim to the possession of exclusive
personal rights and their violation in definite ways; for which an
action at law cannot afford plain and adequate redress. That is the case
here. The defendants were a voluntary, unincorporated association; whose
object was [***38] to erect a statue of Mrs. Schuyler as the "typical
philanthropist," and subscriptions were solicited from the public to
create a fund for that purpose. It was found by the trial court that the
acts of the defendants "have exposed the name and the memory of Mrs.
Schuyler to adverse comment and public criticism of a nature peculiarly
disagreeable to her relatives, and have caused disagreeable notoriety,
for which they are in no way responsible." It was found that "annoyance
and pain have been caused thereby to the plaintiff and to the immediate
relatives of Mrs. Schuyler," to their great distress and injury, by the
notoriety incident thereto.
However opinions may differ with respect to the substantial nature of
the injury to the feelings of Mrs. Schuyler's relatives, we have the
finding that it was in fact caused, and we should not say that it was
merely fanciful. The theory of the case, which calls for equitable
relief, is not that of a mere protection to wounded feelings; but the
protection of a right which those who represent the deceased have to her
name and memory as a family heritage and which had not become the public
property. Why is that not a legal and an exclusive interest [***39] and
why are its possessors not entitled to be protected by the law from a
notoriety which invites public criticism of the memory and reputation of
the deceased relative? And if it be true that there is no known
application at common law of the principle, does not that natural
justice with which equity is synonymous require that equity supply the
deficiency, or enlarge the operation of legal principles, and grant the
shelter of the law to the name and memory of the deceased, at the
instance of her relatives?
The evidence does not establish that Mrs. Schuyler was a [*455] public
character, nor that she was in such public station, or so prominent in
public works, as to make her name and memory public property. That she
was engaged, throughout her life, in acts of benevolence and
beneficence, may be perfectly true; but she was never a public character
and in no just sense can it be said that, because of what she chose to
do in the private walks of life, she dedicated her memory to the state
or nation as public property. To hold that, by reason of her constant
and avowed interest in philanthropical works, unconnected with public
station, the right accrued to an association of individuals, [***40]
strangers to her blood, to erect a statue of her, typifying a human
virtue, through contributions solicited from the general public, is, in
my judgment, to assert a proposition at war with the moral sense and I
believe it to be in violation of the sacred right of privacy; whose
mantle should cover not only the person of the individual, but every
personal interest which he possesses and is entitled to regard as
private, when through no act of his, nor by any peculiar circumstances,
has the public acquired any right in them. Unless equity does interfere,
the right of privacy will be lost and that will become the property of
the public, which, our sentiments and reason and our sense of justice
tell us, is the private property of the relatives of the deceased
person. That the plaintiff is entitled, if any one is, to a remedy, has
been heretofore mentioned and it is the finding of the trial court, and
that that remedy may be preventive in its character seems to me to be
within the reason and principle upon which equity proceeds.
It is not necessary that the proposed statue of Mrs. Schuyler should be
libelous in character. The wrong consists not in that fact, but in the
unauthorized [***41] acts of the defendants, which will invite adverse
comment and public criticism upon the life and character of the
deceased, bring her name and memory into more or less unenviable
notoriety and inflict upon her immediate relatives and representatives
more or less injury in their feelings and their desires for that
privacy, which, in their private station of life, they have the right to
enjoy.
The threatened offense is of a permanent and continuing [*456] nature
and, in many senses, differs from cases of mere libelous publications. I
think that a case was [**29] made out where equity was unfettered in
its exercise by any legal principle and where the decree of the court
below should be affirmed.