¶1The article complained of' was a report upon a new play, traditionally a newsworthy subject, and one that may be reported by “ pictorial reproductions of scenes therefrom” (see Gautier v. Pro-Football, Inc., 278 App. Div. 431, 437, affd. 304 N. Y. 354). To point out, in an article of that nature, a relation between the play and the concededly newsworthy incident in which plaintiffs had been involved creates no cause of action in their favor under section 51 of the Civil Bights Law unless they can show that the incident ‘ ‘ has so tenuous a connection with the news item or educational article that it can be said to have no legitimate relation to it ” (Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 782, Shientag, J.; and see, also, Dallesandro v. Holt & Co., 4 A D 2d 470, 471). This cannot be said here. As plaintiffs had been held prisoners in their home by escaped convicts, with consequent widespread publicity, and as such an occurrence formed the basic theme of the play, which was news in itself, obviously references to this common feature in the report of the play were of “ some relevance to the reporting of news ” (Gautier v. Pro-Football, Inc., 278 App. Div. 431, 435, supra). Such relevance was confirmed by the admission of the playwright-— a witness called by plaintiffs — that “ the Hill incident — unconsciously— triggered the book [which he had written and from which he contrived the play] in a very direct way ”.
¶2Overstrained, in my view, is the court’s conception of the article as a fictional recreation of the Whitemarsh incident. Had a review of the play in a daily newspaper summarized some of the scenes and then stated that the play was inspired by the Hills’ misadventure, I question that section 51 would have been considered applicable. Yet that is the tenor of the instant article, except that the scenes were depicted by pictures-instead of words, a permissible substitution as above stated. To be sure, a searching eye can detect elements of inaccuracy or exaggeration in the article. By taking the pictures in the Whitemarsh house, as well as by words, defendant indicated that the incident there inspired the play. Though the incident happened in September, 1952 and the novel on which the play was based was written the following Spring, perhaps it is an overdrawn inference from their common features above mentioned that the one inspired the other; and perhaps it is erroneous to say that an occurrence is the inspiration of a work when it is only the unconscious trigger. Perhaps the word *493"story" in the last sentence of the excerpt quoted in the majority opinion can be construed as a reference to the White-marsh incident rather than to the word “novel” in the preceding sentence. But, especially when it is recalled that “ [t] ruth or falsity does not, of itself, determine whether the publication comes within the ban of sections 50 and 51 ’ ’ (Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, 484, Shientag, J., affd. 272 App. Div. 759), can it be said that such flaws are of so extravagant a nature as to convert into fiction an informative presentation of legitimate news? In my opinion not; we are in a domain where * ‘ the lines may not be drawn so tight as to imperil more than we protect ” (Oma v. Hillman Periodicals, 281 App. Div. 240, 245; cf. D’Altomonte v. New York Herald Co., 154 App. Div. 453, mod. 208 N. Y. 596; Goelet v. Confidential, Inc., 5 A D 2d 226).
¶3To hold, as suggested in the concurring opinion, that a violation of section 51 may be established by a showing that a newsworthy item has been published solely to increase circulation injects an unrealistic ingredient in the complex of the right to privacy, and would abridge dangerously the people’s right to know. In the final analysis, the reading public, not the publisher, determines what is newsworthy, and what is newsworthy will perforce tend to increase circulation.
¶4I would dismiss the complaint.
¶5Valente and McNally, JJ., concur with Stevens, J.; Babin, .J., concurs in opinion; Bobbin, P. J., dissents in part in opinion.
¶6Judgment modified on the law and in the exercise of discretion, and a new trial directed on the sole issue of damages. As so modified, the judgment appealed from is otherwise affirmed, without costs to either party.