#### William F. Wendell, Plaintiff, *v.*The Conduit Machine Company, a Domestic Corporation, Defendant.

(Supreme Court, Kings Special Term for Motions,

November 1911.)

Civil rights — Portraits of living persons — Remedies — Defenses —- Acquiescence.

Injunctions —Actions for injunctions — Defenses —Acquiescence. Trade marks and trade names — Remedies — Defenses—Acquiescence.

Where one who is in another’s employ voluntarily poses for a portrait to be used in his master’s business, he may not, after the latter has incurred expenses in the use thereof to build up his business, maintain an action upon the termination of the employment,-under section 50 of the Civil Rights Law, to restrain the further use of the portrait for advertising purposes.

Motion for a temporary injunction restraining the defendant from using plaintiff’s picture in defendant’s advertising catalogues.

Myron Sulzberger, for motion.

Chase Mellen, opposed.

Mapper, J.

It is conceded that the defendant is using plaintiff’s portrait or picture for advertising purposes, or for the purposes of trade, without having first obtained his written consent, as required by the Civil Eights Law, section 50. That use consists of circulars or catalogues, showing the plaintiff in the act of operating a machine manufactured by the defendant.

By section 51 of the statute cited,' *supra,*a person whose portrait or picture is used within this state for advertising purposes, or for the purposes of trade, without his written consent, first obtained, as provided by section 50, *supra, “*may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof.” In addition to the injunctive process a right of *202action for damages at law is given by the statute to the person so aggrieved.. § 51.

The defendant resists the motion made by the plaintiff for an injunction *pendente lite,*upon the ground that, by the plaintiff’s own conduct in posing for the portrait with knowledge that the defendant was to make its present use thereof, namely, for advertising purposes, the.plaintiff is estopped from asserting a right to an injunction.

I am inclined to the opinion that the defendant must prevail on this motion. The facts set up by the defendant in its answering affidavits, to the effect that plaintiff was a willing and voluntary participant in the taking of his picture • for the identical uses to which it was subsequently put by the defendant; and that, with knowledge on his part of such intended use, he posed for the taking of the picture, is not disputed by the plaintiff. The only complaint made by the plaintiff seems to be based upon the defendant’s refusal of his request to discontinue the use of his picture in the defendant’s advertisement, which request was made long after the defendant began to make use of the picture and at a time when the relations of master and servant between the parties were about to terminate.

The present action is in equity for an injunction, and the sole question before me is whether or not the defendant should be enjoined during the pendency of the action. I see no reason why the ordinary principles governing a motion for an injunction *pendente Hie*should not be applied to this case. These principles, so elementary that they require no citation in their support, may be restated here. The granting of a temporary injunction rests in the sound discretion of the court under the circumstances of the particular case. It will never be granted when good conscience does not require it, nor where it will tend to promote, rather than to prevent, injustice. The applicant for an injunction is governed by the usual equitable rules, and the relief will be denied him, even though he shows that he has a right and would other-wise be entitled to the remedy, in case he has himself acted dishonestly, fraudulently or illegally. It is not enough to show .that defendant is without right; the complainant who *203seeks equity must do equity and must affirmatively show himself to he equitably entitled to the relief asked. If the complainant has himself acted in such a way as to raise an estoppel against him, he will not be granted an injunction to prevent the act in question. When plaintiff assents by word or conduct to the adverse claim or injurious conduct of defendant, he will be deprived of his right to the interference of a court of equity, until after he has established his right at law; and in this connection assent is not deemed evidence of a grant or privilege ,conferred, but simply operates to deprive plaintiff of the right to equitable interference.

Applying these principles to the case at bar, it is clear that the court, in the exercise of a sound discretion, should refuse a temporary injunction. The statute was intended to prevent the unauthorized use of another’s portrait for advertising purposes or purposes of trade, and made the written consent of the person whose portrait was used for such purposes evidence of that authority; but it never was meant that an employee could fraudulently, or by his culpable negligence amounting to constructive fraud, mislead his employer into expenditures to build up his trade and thereafter claim the intervention of a court of equity where such intervention would visit a material injury upon the employer.

In Wyatt v. McCreery and Wyatt v. Wanamaker, 126 App. Div. 650, 656, a somewhat similar defense, was interposed to actions brought by the plaintiff for the illegal use of her photograph by the defendants; and the defenses in each action were demurred to and the demurrers sustained. But those decisions were based upon the fact of the plaintiff’s infancy; for, as said in the case 'against Wanamaker, *supra,*657: “ The plaintiff is an infant, and on the facts pleaded she is not estopped from invoking the protection awarded to her by the act in question.” It seems to me that the eases cited are not an authority in support of the plaintiff on this motion.

Motion denied, with ten dollars costs.