The complaint containing two causes of action has been dismissed at Special Term. The first cause of action is to recover for an invasion of privacy based on sections 50 and 51 of the Civil Rights Law. The second cause of action is in libel.
It appears that one of the defendants manufactured a fabric upon which was printed a reproduction of a newspaper article. The appearance of the fabric was intended to and did simulate a piece of newspaper pinned to a piece of cloth by safety pins. The newspaper article in question actually was published and was a report of a tennis match in which the plaintiff was a contestant. While the plaintiff was the loser in the match reported, there is nothing discreditable in the article itself. The fabric was manufactured by the other defendants into pajamas, underwear and play suits. The questions involved are whether such use of the plaintiff’s name and such a reference to him gives rise to either of the causes of action pleaded.
Taking first the cause of action based on invasion of privacy, it is clear that the plaintiff’s name was used without authorization for a commercial purpose. Unless that use was incidental, a cause of action is indisputably alleged. Whether or not the use was incidental would depend on the degree of significance that the mention of plaintiff had to the purpose intended. Where the article refers to the plaintiff specifically and concerns him, as distinct from where it merely refers to him as an incident of *118what the article concerns, the use is not incidental and it may reasonably be inferred in this case that the printing was designed for the sole purpose of soliciting customers for defendants’ products (Flores v. Mosler Safe Co., 7 N Y 2d 276, 284).
As regards libel, admittedly this is an unusual and distinctive method of publication. It has, however, been generally recognized that the possible modes of publication are infinite (Newell, Slander and Libel [4th ed.], p. 224) and the development of new techniques continuously increases the ways in which publication can be made. The question here presented is whether the particular form of publication holds the plaintiff up to ridicule. It should be noted that the use to which the fabric has been put associates the plaintiff’s name with garments of a very intimate nature, and the character of the cloth is undoubtedly intended to make the garments appeal by virtue of an unusual risque appearance. Whether the opportunities for ribaldry coming from the association of the plaintiff’s name with such garments would hold him up to ridicule presents a question of fact. In a leading and well-considered opinion a publication having such potentialities was held to give ground for an action for libel (Burton v. Crowell Pub. Co., 82 F. 2d 154).
The order dismissing both causes of action should be reversed and the motion to dismiss denied.
Valente, J. P., and Eager, J., concur with Bergan, J.; Steuer, J., dissents in opinion in which McNally, J., concurs.
Orders entered on November 22, 1960, granting defendants-respondents’ motions, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, to dismiss the amended complaint, affirmed, with $20 costs and disbursements to the respondents.