I dissent in part and vote to deny plaintiff summary judgment against the defendant Universal Photo Books, Inc.
Section 51 of the Civil Rights Law provides that damages may be recovered by “ Any person whose name, portrait, and picture is used * * * for advertising purposes or for the purposes of trade without * * * consent ”. Essential to a determination that plaintiff’s right of privacy has been violated is a finding that the unauthorized use of her name and picture was made for “ advertising purposes or for the purposes of trade ”. A use not made for such purposes is not violative of the statute (cf. Callas v. Whisper, Inc., 198 Misc. 829, affd. 278 App. Div. 974, affd. 303 N. Y. 759; Damron v. Doubleday, Doran & Co., 133 Misc. 302, affd. 226 App. Div. 796).
The affidavits submitted and the exhibits offered in support of the motion for summary judgment are, in my opinion, insufficient to warrant the conclusion that, as a matter of law, the use of plaintiff’s name and picture was for such proscribed purposes. The entire book was not submitted to Special Term and is thus not part of the record before us. It may very well be that the use made of plaintiff’s name and picture is—in the over-all context of the book—so incidental and inconsequential as not to constitute a use for purposes of advertising and trade (cf. Stillman v. Paramount Pictures Corp., 2 A D 2d 18, affd. 5 N Y 2d 994). Although the affidavits and exhibits contain a general description of the book and, to some extent, indicate the setting of the picture, I do not believe the case can be disposed of at this juncture without an examination of the book in its entirety. Absent such examination, I cannot say whether the use made of plaintiff’s name and picture is, as a matter of law, violative of the section or that there is not a triable issue of fact. Such examination may, to the contrary, reveal the use to be nonviolative as a matter of law, or may require the conclusion that a question of fact is presented which requires resolution by a trial. This being so, summary judgment ought not now be granted against Universal Photo Books, Inc.
*154Breitel, J. P., and Eager, J., concur with McNally, J.; Babiy, J., dissents in part in opinion, in which Bastow, J., concurs.
Order, entered on August 29, 1962, denying plaintiff’s motion for summary judgment, reversed, on the law, the motion granted, an assessment of damages directed as to defendant Universal Photo Books, Inc., and the complaint dismissed as to defendants Verían Books, Inc., and S. D. Uslan, with costs to prevailing parties.