People ex rel. Burnham v. Flynn

Complaint was made to a magistrate in the city of New York charging relator, Charles Burnham, with violating section 168, subdivision 5, of the Penal Code, which reads as follows: “§ 168. Conspiracy defined.— If two or more persons conspire, either * * * 5. To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use or employment thereof. * * * •Each of them is guilty uf a misdemeanor.”

After examination before the magistrate, the relator, Burn-ham, was taken into custody by virtue of a commitment then issued. Thereupon he sued out a writ of habeas corpus. After a hearing the Special Term made an order dismissing the writ and remanding the relator to custody. The Appellate Division reversed this order, reinstated the writ and discharged the relator. From the latter order this appeal was taken by the defendants.

The petition for the writ alleged, among other facts, the following: That the-relator, Charles Burnham,' is a theatrical manager, and particularly manager of the theater known as Wallaclc’s Theater, situated at Thirtieth street and Broadway, in the city of New York; that the cause of imprisonment of petitioner is that he was and is a member of an association of theater manager's having for its general object the promotion • of the interests and welfare of the theatrical industry, in which the members of said association are interested ; that while a number of the members of the association were holding a

It further appears in the petition that no resolution was passed at the meeting where this statement was read, but that thereafter said Metcalfe was, by the purely voluntary action of individuals controlling their own theaters, in several instances excluded from such theaters, not including, however, the theater controlled by the petitioner, and that thereupon the magistrate issued his mandate herein, ordering the arrest of the petitioner. The petition proceeds with certain formal allegations and prayed that the writ of habeas corpus might issue to the end that after hearing relator be discharged from custody.

The return to the writ is exceedingly brief and formal, and the relator duly traversed the same. A hearing was had before the magistrate; the controlling facts are undisputed. It was proved that the relator did appear at this gathering of

On this general state of facts, Metcalfe, acting as complainant, charged the relator, Burnham, with a violation of section 168, subdivision o, of the Penal Oode, in that he had sought to prevent complainant from exercising his lawful trade or calling as a dramatic critic, which he had followed for many years. The city magistrate found the relator guilty as charged, and committed him to the custody of the warden of the city prison.

We agree with the conclusion reached by the learned Appellate Division. In the view we entertain of the case as presented to the city magistrate it is unnecessary to construe the section of the Penal Oode upon which the proceeding is founded. It is proved that the object of the relator, Burn-ham, and the other theater managers associated with him, was not to attack or rebuke Metcalfe in the legitimate exercise of liis calling as a dramatic critic. The statement presented by the relator at the meeting of the theater managers avers, referring to certain alleged libelous articles appearing in the periodical for which Metcalfe wrote, as follows: “ For their so-called criticism on plays or business methods we make no mention — that does not concern us and is without our province — but when they persistently and for no discernible just cause (but a personal feeling, perhaps) make a butt of one’s religion — be his faith what it may — then some action should be taken to give the members of this association so assailed its vote of confidence and support and to take necessary steps to prevent our business interests being injured.”

The remaining question in the case is whether the proprietor of a theater has the right to decide who shall be admitted to witness the plays he sees fit to produce in the absence of any express statute controlling his action. At this late day the question cannot be considered as open in this state. There are a number of cases arising out of the purchase of theater tickets from speculators on the sidewalk after notification by the proprietor that the same will not be honored at the door. (Collister v. Hayman, 183 N. Y. 250 ; S. C., 71 App. Div. 316 ; Purcell v. Daly, 19 Abb. [N. C.] 303.) These cases illustrate the absolute control that the proprietor of a theater exercises over the house and the audience. He derives from the state no authority to carry on his business, and may conduct the same precisely as any other private citizen may transact his own affairs.

In Burton v. Scherpf ( 83 Mass. 133 ) it was held that the sale of a ticket of admission to a concert is only a revocable license to the purchaser to enter the building in which it is given, and to attend the performance ; and, if revoked before the performance has commenced, and before he has taken the Seat to which the ticket entitles him, and he remains therein after notice of the revocation and refuses to depart upon request, he becomes a trespasser, and may be removed by the

The holder of a ticket which entitles him to a seat at a given time in a place of amusement, being refused admission, is entitled to recover the amount paid for the ticket, and, undoubtedly, such necessary expenses as were incurred in order to attend the performance.

The case of Commercial Telegram Co. v. Smith ( 47 Hun, 494 ) involves a kindred principle. It was an action brought to restrain the defendants, the president of the Hew York Stock Exchange and others, from interfering with the plaintiff in collecting upon the floor of the exchange the quotations of dealings in stock and distributing the same to its customers. Certain correspondence had passed between the parties and resulted in what was afterwards held1 by the court as a mere negotiation, which did not amount to a binding contract, permitting the plaintiff to carry on its business upon the floor of the exchange. The plaintiff, misconceiving the force and effect of this correspondence, went on and made large expenditures in the preparation of its wires and instruments for the purpose of carrying on its business upon tbe floor of the exchange, all of which would be entirely useless if it was denied the privilege for which application had been made. It was also urged that even assuming the correspondence did not sustain a contract, nevertheless considerations of public policy would uphold the claim of the plaintiff. The learned General Term in the first department (Van Brunt, P. J., writing the opinion) said as to this point: “ The claim that the Stock Exchange has no right to exclude the Commercial Telegram Company from the floor upon the ground of public policy evidently proceeds upon an entirely erroneous theory. The Exchange is a private association ; it has the right to admit to its floor whom it pleases; it obtains nothing from the State except that protection which the law affords to every citizen; it has sought no special privilege and obtained no special powers, It is, therefore, just as much the master of its own

We are of opinion that the relator and his associates in the Theater Managers Association acted in the exercise of their strict legal rights.

The order of the Appellate Division appealed from should be affirmed, with costs.

Cullen, Cli. J., O’Brien, Haight, Vann, IIiscock and Chase, JJ., concur.

Order affirmed.