Bunnell v. Keystone Varnish Co. ( 1938 )

Order denying defendant’s motion to dismiss the second cause of action alleged in the amended complaint, for failure to state facts sufficient to constitute a cause of action, affirmed, in so far as an appeal therefrom is taken, with ten dollars costs and disbursements, with leave to defendant to serve an amended answer within ten days from the entry of the order hereon. The plaintiff has no cause of action on guasi-contract. An action under section 51 of the Civil Bights Law is the plaintiff’s sole remedy for the unauthorized use of her name (Binns v. Vitagraph Co., 210 N. Y. 51) and the alleged unjust enrichment of the defendant is a part of that cause of action. (Cf. Franklin v. Columbia Pictures Corp., 246 App. Div. 35, 37; affd., 271 N. Y. 554.) We affirm the order because the second cause of action, with which alone this motion is concerned, states a cause of action under the Civil Rights Law. The first cause of action is to the same effect except that it omits the allegation of unjust enrichment. Lazansky, P. J., Davis, Johnston, Adel and Close, JJ., concur. [167 Misc. 707.]