Supreme Court, March, 1908. [Vol. 58. common carrier for hire. It is authorized to use the public streets for that specific public purpose. The leasing of the exterior of its vehicles for advertising is an unauthorized use of the streets for a private purpose. Such a special and peculiar use has been condemned even after it has received the stamp of municipal approval. Hatfield v. Straus, 189 N. Y. 208; State ex rel. Belt v. City of St. Louis, 161 Mo. 371. The use of the exterior of the stages is not a stage use; it is not in furtherance of the corporate objects; it is not necessary to the performance of any corporate duty; it is not an element in the consummation of any purpose for which the corporation was formed; it is a distinct and separate enterprise unrelated to the duties and objects of the plaintiff as a common carrier. The cases cited by the plaintiff (French v. Quincy, supra; Spaulding v. Lowell, 23 Pick. 71; Worden v. City of New Bedford, supra; People v. Plattville, 71 Wis. 139; Flanagan v. Great Western R. Co., supra; Holmes v. Eastern Counties R. R. Co., supra; Brown v. Winnisimmett Co., 11 Allen, 326; Forrest v. Manchester R. Co., 30 Beav. 40) outline principles with which I am in full accord, but they are not authorities for the plaintiff's contention. The fact that the plaintiff receives a substantial income from the advertising company is without weight. The court will not approve an unauthorized act merely because it is a source of profit to the wrongdoer. It is true, as the plaintiff argues, that the owner of property has the right to use it without restraint, provided the property, health, physical comfort and morals of others and of the public are not injured by such use. But that principle does not apply to public corporations using the streets for a specific purpose under a limited franchise granted by the State. It is likewise true that the plaintiff's charter cannot be annulled or restricted by the defendant, and that the defendant has no power to interfere with any right which is incidental to the charter; but that principle is also inapplicable in view of the fact that the maintenance of the plaintiff's signs is not an incident to its franchise. Misc.] Supreme Court, March, 1908. The plaintiff challenges the power of the board of aldermen to pass the ordinance under which the defendant asserts its right to remove the advertising signs. Section 50 of the Greater New York charter empowers that board "to regulate the use of streets and sidewalks by foot passengers, animals and vehicles" as well as "the exhibition of advertisements or handbills along the streets," and to "make, establish, alter, modify, amend and repeal all ordinances" necessary to that end. The power thus conferred is sufficient authority for the adoption of the ordinance. The plaintiff argues that the power to regulate does not include the power to prohibit, and cites Peace v. McAdoo, 110 App. Div. 13. That case, however, arose under section 315 of the charter, which empowered the police department to "regulate the movement of teams and vehicles in streets, bridges, squares, parks and public places," and the court said: "The very idea of a street imports the right of the general public to pass and repass thereon throughout all parts thereof. In People v. Kerr (27 N. Y. 188, 194) the court says: 'The right of the public, that is, of the people of the State, in a street or highway, is a right of passage. In the ordinary use of the highway, it is a right to pass and repass over its surface on foot or in carriages at pleasure.' In Smith v. McDowell (148 Ill. 51) it is said: 'The municipality in respect of its streets is a trustee for the general public and holds them for the use to which they are dedicated. The fundamental idea of a street is not only that it is public, but that it is public in all its parts for free and unobstructed passage thereon by all persons desiring to use it.' * * * "The right of regulation is restricted to the 'movement of teams and vehicles in streets,' etc. This expression recognizes the existence of such a thing, and such a movement in every part of a street is a public right. If, under the guise of a regulation, that movement is forbidden in any part of a street, there is, of course, an impairment of the right—a pro tanto prohibition against its exercise." Here the plaintiff is attempting to exercise unauthorized privileges not common to the public, and the ordinance does Supreme Court, March, 1908. [Vol. 58. not, therefore, impair any right. Furthermore, there is a wide distinction between the power given to the police department to regulate traffic and that granted to the board of aldermen to regulate the use of the streets. The ordinance is constitutional. As I have shown, no right exists in the plaintiff to engage in exterior advertising, and the contracts having that object in view are ultra vires. Therefore, any ordinance designed to prevent the display of the plaintiff's signs could not be held to deprive it of its property without due process of law, or to deprive it of the equal protection of the laws within the meaning of the Fourteenth Amendment of the Constitution of the United States, or to impair the obligation of its contracts. The discrimination which the plaintiff claims is effected by this conclusion has no existence in fact. There is not a scintilla of evidence that any common carrier anywhere enjoys the privilege of displaying on the outside of its vehicles signs similar to those carried by the plaintiff's stages or even approaching them in similarity. The ordinance is broad and bears equally upon all public and quasi public corpo rations. But the plaintiff maintains that its vehicles are not "advertising trucks, vans or wagons." If it were necessary to decide that question I would be inclined to the conclusion that the term "wagon" contained in the ordinance embraces the plaintiff's stages. It has been held that the word "" wagon " is a generic term, including every other species of vehicle, by whatever name they may be called. Gordon v. Shields, 7 Kan. 320, 325; Luce v. Hassam, 76 Vt. 450. But this case must be disposed of upon broader grounds, which defeat the right of the plaintiff to any equitable relief. The plaintiff has assumed the burden of establishing the existence of facts which justify protective intervention by the court. It has not only failed to sustain that burden, but has shown itself to be engaged in the commission of acts unauthorized by law. Under these circumstances, it asks that its illegal acts be not only approved but perpetuated by judicial sanction against possible future lawful interference. Misc.] Supreme Court, March, 1908. Equity will not stay the hand of the law under such circumstances. It follows that the complaint must be dismissed on the merits. The defendants will combine the proposed findings and conclusions which have been approved, together with those which have been prepared to support the ground upon which the disposition of the case is based, and present a new decision for signature. Judgment accordingly. HELEN WYATT, Plaintiff, an infant, v. JOHN WANAMAKER et al., Defendants. (Supreme Court, New York Special Term, March, 1908.) Injunction Who and what may be enjoined - Publications and - Statute forbidding use of name or picture - Defenses to Privacy, Right of - Statutory guaranty — Actions name or picture. -Defenses Use of In an action under chapter 132 of the Laws of 1903 for the unauthorized use of the plaintiff's name and picture by the defendants, a separate defense which sets up that the pictures in question were copies of a photograph taken by a photographer under an agreement with the plaintiff for a reduction in price in consideration of the photographer's right to sell or otherwise use copies for the purpose of his business, and that the pictures used by the defendants were copies of such photograph given to defendants by one who had purchased them from the photographer, is insufficient in law upon the face thereof, as (1) it alleges an oral consent and not a consent in writing; (2) it fails to show a consent from the parent or guardian of the plaintiff whose infancy is not denied; (3) it fails to allege any consent, written or oral, from the plaintiff or her guardian, but only an agreement between the plaintiff and the photographer with which the defendants are not connected. A second affirmative defense which sets out the oral agreement mentioned and also a custom of photographers to furnish photographs at professional rates to actors, in return for the right to reproduce and sell the photographs or otherwise use them in the course of the photographer's business, and that plaintiff, with knowledge of the custom, made a special oral agreement with the Supreme Court, March, 1908. [Vol. 58. photographer to produce and use her photographs and "waive any and all rights which she may have had under chapter 132 of the Laws of 1903" is also demurrable, for the reasons stated and for the further reason that the custom pleaded cannot be availed of to contravene the express provisions of the statute, but is repugnant thereto and therefore void, and that a waiver of the statute as to the photographer would not be available to protect the defendants who are third parties and in no way connected with him. DEMURRER to separate defenses in an answer. Ernst, Lowenstein & Cane (Melville H. Cane, of counsel), for plaintiff. Job E. Hedges (Richard Ely, of counsel), for defendants. TRUAX, J. The plaintiff herein demurs to the first and second separate defenses of the answer herein on the ground that each is insufficient in law upon the face thereof. The plaintiff sues under chapter 132, Laws of 1903, for the unauthorized use of her name and picture by the defendants. The complaint sets forth the infancy of the plaintiff, the appointment of her guardian, the unauthorized use for advertising purposes or purposes of trade by the defendants of the plaintiff's portrait and name for several weeks in the autumn and winter of 1906 without the consent, written or otherwise, of the plaintiff or of her parent or guardian, and the consequent injury and damage to the plaintiff in the sum of $5,000; judgment is then demanded for an injunction restraining the use of said portrait and the name and also for damages. The plaintiff proceeds under the statute, the Court of Appeals having denied the existence of any cause of action at common law. Roberson v. Rochester Folding Box Co., 171 N. Y. 538. The privacy statute, which became operative on September 1, 1903, reads as follows: "Section 1. A person, firm or corporation that uses for advertising purposes, or for the purpose of trade, the name, portrait or picture of any living person without having first obtained |