Bartlett v. Mudgett. taken before the justice, and that the county court had no means of determining whether the accounts proved before the justice exceeded $400, and, further, that the appeal brought up the issues of fact joined in the court below to be tried anew in the county court, and that the jurisdiction. of that court, for all purposes of the trial and judgment, was the same as if the action had been commenced in that court originally. The respondent's counsel claims that this is not an authority against him for the reason that the question of jurisdiction was not raised in that case in the justice's court, and for that reason cannot be considered in the appellate court. There is nothing in this contention, for if the justice did not have jurisdiction the consent of the parties would not have given it to him. (Oakley v. Aspinwall, 3 N. Y. 547, 552; Clyde & Rose Plank Road Company v. Parker, 22 Barb. 323). The case of Kirk v. Blashfield (6 Supm. Ct., T. & C., 509) is not an authority to the contrary. There the justice dismissed the action upon the same ground as in the case at bar, but no appeal was taken from his judgment. The plaintiff commenced a new action in the supreme court, and recovering less than fifty dollars, he demanded and was allowed full costs, the court holding that the justice's judgment, not having been reversed, was conclusive upon the question of the jurisdiction of the parties. We think that the county court was in error in granting the order appealed from; it should be reversed, with $10 costs and disbursements. DWIGHT, P. J., HAIGHT and BRADLEY, JJ., concurred. Murray v. Gast Lithographic and Engraving Co. MURRAY v. GAST LITHOGRAPHIC AND ENGRAVING CO. N. Y. Court of Common Pleas, Special Term; April, 1894. 1. Injunction.] A parent cannot maintain an action to enjoin the unauthorized publication of the portrait of an infant child, and for damages for injury to his sensibilities caused by the invasion of his child's privacy; for the law takes no cognizance of a sentimental injury independent of a wrong to person or property.* 2. The same.] Nor can such suit be maintained upon the ground that the plaintiff had caused the portrait to be painted, and that the publication is an invasion of his proprietary rights, where it appears that he had given the portrait to his wife. Trial by the court without a jury. Action by William Murray against the Gast Lithographic and Engraving Company to enjoin the unauthorized publication of a portrait of plaintiff's infant daughter, and for damages for the injury caused thereby. The facts are fully stated in the opinion. B. B. Foster and Isaac Angel, for plaintiff. William B. Ellison, for defendant. BISCHOFF, J.-On the trial plaintiff's counsel contended that this action is one brought to recover damages for the alleged unauthorized publication of a portrait of plaintiff's infant daughter, and for an injunction restraining such further publication. Consistently with that contention I have been asked to find as the only proposition of fact deemed established by the evidence that defendant has * See note on injunction against publications infringing on privacy, or affecting character or reputation, in 27 Abb. N. C. 379. Murray v. Gast Lithographic and Engraving Co. committed the act of which the claim to relief is predicated. Assuming this theory of the complaint and action to be correct two insuperable objections arise to preclude any recovery. First, as conjuncta persona merely, plaintiff has no right of action for a wrong committed against the person of another, assuming the unauthorized publication of a portrait of the latter to be an unlawful invasion of his right to the enjoyment of personal privacy. Secondly, as parent, his only right of action, growing out of wrongs committed against the person of his child, is for the recovery of damages for loss of the services of the child and the expenses to which he has been subjected in effecting a cure from the injury, elements of damages which are obviously wanting in this action; and even in an action for loss of services, and expenses attending the cure, no recovery can be had for the outraged mental sensibility of the parent (Sutherland on Damages, vol. iii. § 952; Cowden v. Wright, 24 Wend. 429; Cuming v. The Brooklyn City R. R. Co., 109 N. Y. 95). If, still pursuing the same theory of the action, it bet insisted that the parent has suffered a personal injuryone to his mental sensibility by the invasion of his child's right to the enjoyment of personal privacy and the indiscriminate distribution of her portraits-the answer is, that the law does not take cognizance of and will not afford compensation for sentimental injury independent of redress for a wrong involving physical injury to person or property. "The law protects the person and the purse. The person includes the reputation. The body, reputation and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But, outside these protected spheres, the law does not yet attempt to guard the peace of mind, the feelings or the happiness of every one by giving recovery of damages for mental anguish produced by mere negligence. There is no right, capable of enforcement by process of law, to possess Murray v. Gast Lithographic and Engraving Co. or maintain without disturbance any particular condition of feeling. The law leaves feeling to be helped and vindicated by the tremendous force of sympathy. The temperaments of individuals are various and variable, and the imagination exerts a powerful and incalculable influence in injuries of this kind. There are many moral obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation. Perhaps the feelings find as full protection as it is possible to give in moral law and a responsive public opinion. The civil law is a practical business system, dealing with what is tangible, and does not undertake to redress psychological injuries" (LUMPKIN, J., in Chapman v. Western Union Telegraph Co., 88 Ga. 763; 46 Albany Law J. 409). If plaintiff is not entitled in this action to recover damages for the infraction of a legal right, still less is he entitled to injunctive relief. A court of equity is powerless to enforce a right or to prevent a wrong in the abstract, and, apart from an injury or damage to the person seeking relief (High on Injunctions, § 1), it cannot enforce a purely moral obligation or the performance of a purely moral duty; and in the absence of actual or threatened injury to property rights, injunctive relief must be denied (Id. § 23). It is fundamental to the jurisdiction of the court, in any case where it is applied to for an injunction, that some property right belonging to the party seeking the relief is in jeopardy (Matter of Sawyer, 124 U. S. 200, 210; Kerr on Injunctions, 1); and an injunction was upon that ground refused where it was sought to restrain a libelous publication (Brandreth v. Lance, 8 Paige 24) and in another case, where the surviving relatives of another applied to restrain the publication of his unauthorized biography, though the latter was admitted to be wholly laudatory (Corliss v. E. W. Walker Co., U. S. Circuit Court, Mass., 30 Abb. N. C. 372; S. C., 48 Alb. L. J. 431). Should it now be urged that this action was in fact Colton 7. N. Y. Elevated R. R. Co. brought, and that its true theory is to recover damages for the unauthorized publication of the portrait which plaintiff caused to be painted of his infant daughter, and to restrain such further publication, and that the unauthorized publication of the portrait was and is an invasion of plaintiff's proprietary rights therein, it seems a conclusive answer that he is not the owner of the portrait, for, from his own admission, it is his wife's property. I refrain from discussing the rights of plaintiff's wife or infant daughter, upon the facts in evidence, for two reasons, namely, that it is unnecessary for the purposes of this action, and that the urgency of the parties for a speedy decision precludes the possibility of doing so satisfactorily to me. Defendant is entitled to judgment, with costs. COLTON v. N. Y. ELEVATED R. R. CO. N. Y. Court of Common Pleas, Special Term; February, 1894. Evidence; opinions.] An expert witness as to the fee or rental value of real estate cannot be asked on direct examination as to the sums paid upon the sales or rentals of particular premises other than the premises in suit.* Following Matter of Thompson, 127 N. Y. 463. Trial by the court without a jury. The action is brought by Charles H. Colton and another against the N. Y. Elevated R. R. Co. and another, to obtain an injunction against the maintenance and operation of defendants' elevated railway in a street in front plaintiffs' premises, and for the damages caused thereby. ΟΙ *See note at the end of this case. |