L. 1923, ch. 80. Right of seizure and search. § 8. for the year nineteen hundred and twenty-one and deemed a part thereof for the purposes of printing and distribution, but shall not be again or otherwise published as session laws. L. 1922, ch. 249.-An act to extend the powers of the convention representing the judiciary and the bar to consider and adopt rules of civil practice. (In effect March 25, 1922.) § 1. The convention representing the judiciary and the bar to consider and adopt rules of civil practice, created by chapter nine hundred and two of the laws of nineteen hundred and twenty and continued by chapter three hundred and seventy of the laws of nineteen hundred and twenty-one, is hereby continued with all the powers and subject to all the responsibilities conferred and imposed by such acts, except that it shall be charged with the duty of further examining the amendments to the civil practice acts and particularly those enacted during the current year by the legislature, for the purpose of adopting amendments and additions to the rules of civil practice and which amendments and additions it shall cause to be filed in the office of the secretary of state on or before the first day of January, nineteen hundred and twenty-three, and shall have the same force and effect as the rules heretofore adopted and filed by said convention pursuant to such laws. Such convention shall meet at a time and place appointed by the chairman thereof. CIVIL RIGHTS LAW. (L. 1909, ch. 14.) § 8. Right of search and seizure.-The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants can issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amended by L. 1923, ch. 80, in effect March 23, 1923.) Search and seizure without a warrant is in violation of section 8 of the Civil rights Law of the state and of the Fourth Amendment of the Constitution of the United States which forbids all states to deprive people of their liberty or property without due process of law, on the grounds (1) that due process of law includes the right to be free from unreasonable searches and seizures, and (2) that both the Federal and State Constitutions guarantee the defendant against self-incrimination. People v. Jakira (1922), 118 Misc. 303, 193 N. Y. Supp. 306. Seizure of private books without warrant of law and in violation of this section. Matter of Both (1922), 200 App. Div. 423, 192 N. Y. Supp. 822. The search and seizure clause of the bill of rights is designed primarily to protect the individual in the sanctity of his home and the privacy of his books, papers and property, and has no application to reasonable rules and regulations adopted to protect public health, morals and welfare. Accordingly, provisions of a city ordinance, § 8. Right of seizure and search. regulating sale of soft drinks, dealing with inspection and taking of samples are not violative of said clause. Safee v. City of Buffalo (1923), 204 App. Div. 561, 198 N. Y. Supp. 646. The immunity of individuals from search and seizure and from forced inquiry into matters irrelevant for any legitimate purpose is to be fully protected, these rights are safeguarded by the Constitution itself and by our Bill of rights. People v. Foster (1923), 204 App. Div. 295, 198 N. Y. Supp. 7. Police officer has right to stop individual acting suspiciously, and to search his person for revolver; weapon so found in public if unlawfully possessed, may be used as evidence against defendant; motion for return of revolver and the prohibition of its use in evidence denied. People v. Esposito (1922), 118 Misc. 867, 194 N. Y. Supp. 326. Police entering pool room without force and discovering a revolver may arrest proprietor and use weapon as evidence, although they had no search warrant.-The statute against unreasonable searches must not be permitted to afford a haven of protection for crime by embarrassing the legitimate functioning of the police power, the first and fundamental conception of which is the maintenance of peace and order. A search without a warrant may be reasonable, and a search with a warrant may be unreasonable, and whether a search is unreasonable within the meaning of the statute depends upon the circumstances uninfluenced by the fact that the search was made without a warrant. In the administration of justice it has always been permissible for police officers in the performance of their duties as such to follow criminals into their hiding places and to search the latter for evidence in support of a conviction, and where the circumstances are such as to reasonably justify summary exercise of the police power, the remedy afforded by section 792 of the Code of Criminal Procedure may be applied without the issuance of a warrant to justify search and seizure. Two police officers without force or opposition entered defendant's licensed pool room during business hours and took possession of a revolver, which they found behind a cigar counter. They placed the defendant under arrest upon a charge of unlawfully having the revolver in his possession. Although no warrant, either for the search or the arrest, had been issued, the evidence favored the officers' version of the circumstances immediately preceding the finding and seizure of the revolver following an admission by the defendant that there was a revolver in a box which apparently he was hiding and that he had no permit for it. Defendant having been indicted on the charge made a motion for an inspection of the minutes of the grand jury; for an order restraining the use of the revolver as evidence against him upon the trial of the indictment, and also for an order directing the return of the revolver to him. Upon denying the motion in toto, held, that the case was one solely of state jurisdiction. The entry of the officers upon the premises was lawful, though made without a warrant, and in circumstances the taking of the revolver did not constitute an unreasonable search and seizure within the meaning of section 8 of the Civil Rights Law. People v. Milone (1922), 119 Misc. 22, 195 N. Y. Supp. 488. When papers of defendant seized by police officer will not be ordered returned.Where officers of the law come into possession of that which was used to commit crime they may not be compelled to restore it to him who claims its ownership, although the officers obtained it by illegal means. Upon the trial of an indictment instruments or papers which were a part of the means by which the defendant accomplished the crime charged against him, though taken from his possession, may be used against him without reference to the manner of the taking. People v. Bowen (1923), 120 Misc. 342, 198 N. Y. Supp. 306. L. 1921, chs. 157, 501. Injunction; damages. §§ 16, 51. § 16. Recovery of damages caused by the illegal sale of intoxicating liquor.-Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either wife or child shall be his or her sole and separate property. Such action may be brought in any court of competent jurisdiction. In any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other. (Added by L. 1921, ch. 157, in effect April 4, 1921.) § 51. Action for injunction and for damages.-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 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; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages. But nothing contained in this act shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this act shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him. which he has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith. (Amended by L. 1911, ch. 226, and L. 1921, ch. 501, in effect May 3, 1921.) Suit to restrain use of plaintiff's picture in advertising matter.-One whose portrait has been used without her consent for advertising purposes has a cause of action under sections 50 and 51 of the Civil Rights Law, though the portrait appearing in the advertising matter is not an exact reproduction, slight changes having been made in the pose by enlargement or otherwise so as to adapt it to the purpose of the advertisement. On all the evidence, held, that the picture appearing on defendant's posters advertising a moving picture film was copied from a photograph of the plaintiff, and that she is entitled to injunctive relief and damages. Loftus v. Greenwich Lithographing Co. (1920), 192 App. Div. 251, 182 N. Y. Supp. 428. In an action by a well-known actress to recover damages for the use of her name and portrait for advertising and purposes of trade without her consent, contrary to the provisions of the Civil Rights Law, a verdict for six cents was not insufficient and contrary to the evidence and the weight thereof, where it appeared that the plaintiff's name and portrait had frequently been published without her objection, and that she had given her oral consent to the use of her name and portrait by the defendents. The exhibition of photographic supplements of newspapers and advertising pages of magazines within view of the jury for the purpose of offering them in evidence did not constitute misconduct, and if there was any impropriety in the method of their presentation objection should have been made thereto, otherwise counsel for the defendants had the right to assume that he might rightfully present such evidence. Harris v. Gossard Co. (1921), 194 App. Div. 688, 185 N. Y. Supp. 861. When moving picture actor cannot enjoin, pendente lite, the use of a picture in which he has no proprietary rights.-An actor who has appeared in moving pictures for purposes of trade may not invoke sections 50 and 51 of the Civil Rights Law to prevent the producer from using the films even in a different manner than orginally contemplated. Where an actor does not himself produce a film and has no exclusive title as owner to its use, possession or disposition, he has no such proprietary right therein as to enable him to enjoin its use without his consent. His relation to the producing company is that of employee. Where the original contract provided that the pictures should be presented by a company of which one G. was to direct the supervision and the producer's assignee now announces its intention to re-edit and reconstruct said films into playlets, the principal actor is not entitled to an injunction pendente lite even though G. is not concerned in the reconstruction. It seems that a release executed by the actor whereby he discharged the producer from "all covenants, contracts, controversies, agreements and promises" does not discharge those in futuro. It also seems that should the actual display of the pictures be a garbled one injurious to plaintiff's reputation he would not be without a remedy. Fairbanks v. Winik (1922), 119 Misc. 809. Complaint. In the absence of equitable considerations, a complaint against a corporation that its use of plaintiff's surname for advertising or trade purposes constitutes a violation of the statute (Civil Rights Law, §§ 50, 51), which prohibits such use, is demurrable on the ground that under the statute alone, the plaintiff is not entitled to an injunction or damages for such alleged use of his surname. Pfaudler v. Pfaudler Co. (1921), 114 Misc. 477, 186 N. Y. Supp. 725. Evidence. While evidence of a custom and usage among prominent actresses to permit their names and photographs to be used for advertising purposes was immaterial and irrelevant to the issues of the case, it was not improper for counsel for the defendants to ask the question of several witnesses, and if the justice was of the opinion that the repetition of the questions was prejudicial, he should have directed counsel to desist and ruled that sufficient had already appeared upon the record to afford the defendants full benefit of an exception to that line of testimony. Harris v. Gossard Co. (1921), 194 App. Div. 688, 185 N. Y. Supp. 861. L. 1923, ch. 664. Membership corporations; unincorporated associations. §§ 53-55. ARTICLE V-A. (Art. V-A added by L. 1923, ch. 664, in effect May 22, 1923.) MEMBERSHIP CORPORATIONS AND UNINCORPORATED ASSOCIATIONS. Section 53. Copies of documents and statements to be filed. § 53. Copies of documents and statements to be filed.-Every existing membership corporation, and every existing unincorporated association having a membership of twenty or more persons, which corporation or association requires an oath as a prerequisite or condition of membership, other than a labor union or a benevolent order mentioned in the benevolent orders law, within thirty days after this article takes effect, and every such corporation or association hereafter organized, within ten days after the adoption thereof, shall file with the secretary of state a sworn copy of its constitution, by-laws, rules, regulations and oath of membership, together, with a roster of its membership and a list of its officers for the current year. Every such corporation and association shall, in case its constitution, by-laws, rules, regulations or oath of membership or any part thereof, be revised, changed or amended, within ten days after such revision or amendment file with the secretary of state a sworn copy of such revised, changed or amended constitution, by-law, rule, regulation or oath of membership. Every such corporation or association shall within thirty days after a change has been made in its officers file with the secretary of state a sworn statement showing such change. Every such corporation or association shall at intervals of six months file with the secretary of state a sworn statement showing the names and addresses of such additional members as have been received in such corporation or association during such interval. (Added by L. 1923, ch. 664, in effect May 22, 1923.) § 54. Resolutions concerning political matters.-Every such corporation or association shall, within ten days after the adoption thereof, file in the office of the secretary of state every resolution, or the minutes of any action of such corporation or association, providing for concerted action of its members or of a part thereof to promote or defeat legislation, federal, state or municipal, or to support or to defeat any candidate for political office. (Added by L. 1923, ch. 664, in effect May 22, 1923.) § 55. Anonymous communications prohibited. It shall be unlawful for any such corporation or associatiton to send, deliver, mail or transmit to any person in this state who is not a member of such corporation or association any anonymous letter, document, leaflet or other written or printed matter, and all such letters, documents, leaflets or other written or VOL. XXIII-10 |