The opinion
Peck, P. J.
(dissenting). The use of plaintiff’s name and photograph on the back cover of defendant’s magazine does not, in my opinon, fall into the category of any exemption defined by previous decisions under the Civil Rights Law. The inside of the article referred to on the outside cover was not about plaintiff as a public figure. He was in no way mentioned in the article or referred to in any way. Nor was he even used as an *246 illustration. The photograph, its pose, and place on the cover were plainly used to catch the eye and advertise the magazine and the article. I think that is not a permissible use of one’s name and visage and that plaintiff is not subject to such use because he happened to be á public figure in a sense.
Cohn, and Van Voobhis, JJ., concur with Breitel, J.; Peck, P. J., dissents in opinion in which Callahan, J.-, concurs.
Order reversed, with $20 costs and disbursements to the appellants and the motion granted.