Plaintiff sues upon two causes of action — one for damages for libel and one for damages under section 51 of the Civil Rights Law, known as the right of privacy act. (See Laws of 1903, chap. 132; Consol. Laws, chap. 6 [Laws of 1909, chap. 14], § 51, as amd. by Laws of 1911, chap. 226.)
The defendant has demurred separately to each count for general insufficiency, and has also demurred to the complaint as *456improperly joining causes of action. ¡Both.causes of action are founded upon the publication by defendant of an article introduced by a short biography of plaintiff, and consisting of what purports to be a'short story written by him in the first person, and recounting in vivid language an adventure in which he took a leading part, and which resulted in the rescue of a white man who was about to be killed by African cannibals. The story is vividly told, and while its literary style may not be of the highest class, it contains nothing reflecting in the slightest degree upon the courage, resourcefulness or conduct of plaintiff. Indeed, his objection to it seems to be founded, upon the fact that it extols him so highly that he may be accused of undue self-laudation. He alleges that the story is untrue in every particular; that he did not write it, and that the incidents described therein never occurred. He, therefore, claims to have been libeled by it and seeks damages for its publication. He alleges no special damage. If, therefore, he can sustain the first count in his complaint, it must be because the article is libelous per se. Here falsity in a writing concerning a person does not constitute a libel. It must go further and tend to disgrace the person written about, or bring him into ridicule or contempt. (Martin v. Press Publishing Co., 93 App. Div. 531.) There is no ambiguity about the article complained of, and we agree with the learned justice at Special Term that it “ contains no reflection upon plaintiff’s honor or integrity, nor does it portray him in any ridiculous situations. ” The question whether the article is libelous or' not is, therefore, one for the court. (Moore v. Francis, 121 N. Y. 199.) We cannot find in the article anything tending in anywise to injure the plaintiff’s reputation, except perhaps as a skillful writer of fiction, but no case has yet gone so far as to hold that it-is libelous per se to attribute to a writer an inelegant literary style. Nor does it hold him up to ridicule in the sense in which the articles complained of in Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144) were deemed by the Court of Appeals to have held up the plaintiff in that action to ridicule. Those articles were avowedly written in jest With a view to amusing the readers of the newspaper at the expense of Prof. Triggs: The article complained of in plaintiff’s first cause of action is written in a *457perfectly serious vein and is, if anything, complimentary rather, than derogatory to plaintiff’s character. Doubtless it would be libelous'to falsely attribute to an author an obscene or profane article, or one which expressed sentiments abhorrent to right-thinking people, for such an article would hold the putative author up to scorn and contumely, but the article complained of here is not such an one. As to this cause of action, the demurrer should have been sustained.
As to the second cause of action, I think that the demurrer was rightly overruled. Section 51 of the Civil Eights Law reads, in part, as follows: “Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade, without the- written consent first obtained as above provided, may maintain an equitable action * * * and may also sue and recover damages for any injuries sustainéd by reason of such use "x" * The question'is, whether the use of the plaintiff’s name as the author of the article complained of was a use “ for advertising purposes or for the purposes of trade.” I think it was. The article was not a news article in any proper sense, but purported to be a story of adventure and was attributed to plaintiff as a person of such experience and character that an article by him would be calculated to attract readers to the paper. The story would have been just as good (or bad) a one, as a literary production, if plaintiff’s name had been omitted, and if no author’s name had been appended. The obvious purpose of using plaintiff’s name was to give to the.story an attribute of verisimilitude and authenticity. ' This, as I consider, was using the name for the purposes "of trade.
. As to the joinder of the causes of action. It is apparent that both causes of action arise out of the same transaction, to wit, the .publication of the article complained of. All the damages the plaintiff suffered in consequence of the publication must be recovered in the same action. (Binns v. Vitagraph Co., 147 App. Div. 783.)
Ingraham, P. J., concurred,
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs.