75 N.Y.S. 1102 | N.Y. App. Div. | 1902
The plaintiff, describing himself as a broker or speculator in theatre tickets, sued the defendants as the proprietors and managers of the Knickerbocker Theatre in the city of Few York, to restrain them from interfering with him in the prosecution of his business of selling upon the sidewalk outside of prohibited limits, tickets of admission to that theatre. His complaint sets forth that he carries on business under a license granted to him by the municipal authorities of the city of Few York, and that hence he is lawfully
Much of the argument of the learned counsel for the appellant is irrelevant to the real question involved in the action. That the plaintiff is engaged in a lawful business is not material to the discussion. He has purchased a privilege from the city to buy and sell theatre tickets, but that privilege relates only to the right to buy and sell that which is purchasable and vendible. The privilege accorded by the city authorities cannot change the inherent nature of a theatre ticket. If that ticket is something that may be bought and sold by any one, as the Court of Appeals seem to think railroad tickets are (People ex rel. Tyroler v. Warden of Prison, 157 1ST. Y. 116), then there would be a good ground to support the. plaintiff’s contention. But the weight of authority is to the effect that a theatre ticket is merely a license given by the proprietor of the place of entertainment to the purchaser of that ticket to enter upon the premises of such proprietor to witness a performance, and that in its nature it is a revocable license. (Purcell v. Pal/y, 19
But the case presented by the plaintiff does not stop,here. His-claim is that, notwithstanding the apparent form of the ticket and the fact that ostensibly it may be only a revocable personal license, the defendants themselves have given to their theatre tickets another quality, and by their own acts have made them vendible articles. That the terms of an instrument are not conclusive that it is á license was held in Greenwood Lake c& U. J. It. It. Co. v. U. Y. & Gt L. It. It. Co. (134 H. Y. 435), and it is a familiar rule that a grantor of a license may, by his own acts, convert it into something more than a personal privilege to the licensee. Henqe, the plaintiff has undertaken to show by affidavit that these defendants have put their theatre tickets upon the market to be sold as any other merchandise might be sold by brokers or speculators, or, as in the Tyroler case, by what are called “ ticket scalpers.” • Affidavits were presented in the court below to the following effect: That these defendants do not sell at the theatre tickets for the first ten rows of seats in a certain section of the theatre auditorium; that tickets for the seats in such rows are sold by the defendants to persons who conduct what are called theatrical agencies at a great many different hotels and other places in the city of Hew York ; that the defendants charge to those persons a sum in excess of the regular schedule price at which tickets for other portions of the same section of the theatre are sold at the theatre; that the sales to the persons conducting those agencies are made with the intent and purpose that they shall be resold, at a further profit to such persons, to any one who may become a -purchaser; -and that thus the charactér of these theatre tickets is radically changed from that-of revocable licenses to that of ordinary articles of merchandise, that may be dealt in and bought and sold by any One.
This plaintiff claims that he bought his tickets at one of the theatrical agencies known as Tyson’s. When he bought those tickets he knew of the limitation put upon them by the notification on the face and on the back of them, and that he was simply purchasing a license which would not be good in his hands to transfer or sell to purchasers who might apply to him upon the sidewalk. The claim of the plaintiff, therefore, that the nature of the license was changed by the acts of the defendants, is met, at least to the extent of justifying the court below in refusing to grant an injunction pending suit.
There is nothing in the contention that the defendants should be enjoined from refusing to accept these tickets from purchasers on the street because of a supposed discrimination between those whopurchase in that manner and those who purchase at the theatre or from the theatrical agents with the intention of themselves using these tickets. The provisions of law cited in this connection by the
The order appealed from should be affirmed, with ten dollars costs and .-disbursements.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., concurred in result.
Order affirmed, with ten dollars costs and disbursements,