61 N.Y.S. 549 | N.Y. App. Div. | 1899
In this proceeding the appellant seeks to compel the Gold & Stock Telegraph Company to connect a ticker in the petitioner’s office with its telegraph wires, and to furnish him with quotations of transactions upon the New York Stock Exchange from time time, as they are made, in the same manner and for the same price a® they are furnished to others. The petition upon which the appellant makes this application alleges that the Gold & Stock Telegraph Gompany is a domestic corporation organized and existing under the Saws of the state of New York; that it was organized under chapter 265 of the Laws of 1848, and acts amendatory thereto; that'the said Gold & Stock Telegraph Company availed itself of its franchise granted under such statute, laid its telegraph wires through, in, or under tifehe public streets of New York, from said New York Stock Exchange, on ¡several directions, and has been for upwards of 15 years engaged >In ttihe .business of collecting reports of the purchases and sides of ¡stocks upon the said New York Stock ExchangS from time to time as they occur, and of transmitting the information so obtained, through Its instruments, called “stock tickers,” to persons and corporations who are not members, of the exchange, at their offices and places of !Easiness, for pay, and is now engaged in such business; that the .charge required from each subscriber for such service, or for each tick- • sar, in the district'near the said stock exchange, is $20 per month; that •an April 18,1899, the petitioner applied to the said Gold & Stock Tele- ■ graph Company for such information or quotations to be furnished ¡irán; that such application was accepted; that said ticker and wire xwere duly installed; that such information or quotations were furmished for about eight days in May, 1899, at the agreed price of $20 per month, which sum was paid in advance for the month of May; that (¿hereafter, .and during the month of May, 1899, for which said service
The telegraph company served its answer to said petition, alleging that the property of the Gold & Stock Telegraph Company had been leased to the Western Union Telegraph Company, and that the business of transmitting quotations from the New York Stock Exchange and other exchanges had been and was managed and conducted entirely by the Western Union Telegraph Company; that prior to November 19, 1892, the respondents had been in the habit of collecting information as to the price at which stocks, bonds, and other securities dealt in on such exchange had been sold, and transmitting such information to its subscribers by means of these instruments, but that subsequent to November 19, 1892, the said New York Stock Exchange, availing itself of a right belonging to it, excluded the employés of the said respondent from access to the exchange, itself collected the information, and sold or transferred the same to the Western Union Telegraph Company, which thereupon and thereafter transmitted such information furnished by the New York Stock Exchange or its employés to persons employing it to furnish them with quotations of stocks dealt in upon the New York Stock Exchange; that the said exchange thereafter, for its own protection, and to prevent the improper and illicit use of quotations of stocks dealt in upon the said New York Stock Exchange by bucket shops and persons disposed to use the same for the purpose of defrauding the public, insisted upon its right to dictate the persons who should be entitled to receive the said quotations, and determined to give out the same only to such persons as the said stock exchange was satisfied would use the same properly, and not to the disadvantage or defrauding of the public, and thenceforth refused
The said contract expired on June 30, 1897; due notice of its expiration having been given by the stock exchange to the respondents. Subsequent to June 30, 1897, pending- the making by the New York Stock Exchange of further or other arrangements with respect to its quotations, it continued said contract in force from day to day after June 30, 1897, in consideration of receiving from the Western Union Telegraph Company, for each day during which said contract shall be so continued in force, the sum of $90, payable at the close of business on each day; it being distinctly understood that all the provisions of said contract, other than those relating to its duration, are to be and remain in force during such temporary continuation of the contract, but that the New York Stock Exchange, or its committee of arrangements, could at any time, without notice, wholly discontinue and terminate said contract, and that upon such discontinuance or termination all rights of the Western Union Telegraph Company thereunder shall forthwith cease and determine. By the agreement between the Western Union Telegraph Company and the New York Stock Exchange, in force prior to June 30, 1897, and which by the arrangements between them was continued from day to day, it was provided that the stock exchange “agrees, at its own cost and expense, to collect, furnish, and transmit to the telegraph company, in the manner herein provided, for distribution by the telegraph company as hereinafter provided, full and continuous reports of the current transactions, news, quotations, and statistics, made or originating in the stock exchange, of such things as are or may be dealt in by the members thereof during the hours for trading prescribed by its rules, and also the changes which may occur in the same from time to time”; the stock exchange to transmit by its own telegraph operators, over the wires of the telegraph company, such information; the telegraph company to receive the same over said wires by their own operators at their main office in the city of New York, and transmit the same over their wires to their customers; the telegraph company to protect its wires so as to render the same, so far as possible, incapable of being tapped, and to use its utmost endeavors to prevent the said reports, or any part thereof, being taken off said wires, or in any way diverted or distributed, prior to their being taken off at said main office; the telegraph company to have the right to serve said reports to the members of the New York Stock Exchange at their offices north of Chambers street, and also the right to serve said reports to all per
The answer also alleges that the appellant applied to the Western Union Telegraph Company to be furnished with quotations; that said application was duly transmitted in good faith by the respondents to the officers of the stock exchange; that the said exchange, for reasons not stated to the respondents, denied such application, and refused to permit such quotations to be furnished by means of a ticker to the appellant, and for that reason the respondents refused to place a ticker in the office of the appellant.
The statute under which the respondents are incorporated (chapter 265 of the Laws of 1848, as amended by chapter 569 of the Laws of 1855) provides that “if shall be the duty of the owner or the association owning any telegraph line doing business within this state to receive despatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals for transmitting despatches, as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith; * * *” that “it shall likewise be the duty of every such owner or association to transmit all despatches in the order in which they are received.” Such provision is continued in the transportation corporation law (chapter 566 of the Laws of 1890, § 103); and by chapter 340 of the Laws of 1850 it is made a misdemeanor for any person connected with a telegraph company to divulge the contents of any message delivered for transmission, which provision has been continued in the revision of the General Laws. The New York Stock Exchange is a voluntary
This private voluntary association, being thus in control of its own property, and having the absolute right to give information as to the' dealings of its members with each other to whom it pleases, and upon such conditions as it pleases to impose, gives certain information to the defendants, to be delivered to certain specified persons, and upon condition that the defendants give such information to such specified individuals, and none other. The appellant, being one of those to whom the stock exchange refused to allow the information furnished by it to the telegraph company to be transmitted, asked the court by mandamus to compel the telegraph company to violate the conditions upon which such information had been received by it, and to furnish such information to him. We fail to see- any principle upon which this application could be granted. It may be conceded that the respondents are corporations charged with the performance of public duties, are under the control of the legislature, and may be compelled by mandamus to perform their obligations to the public. The obligation that they assume is to receive and transmit communications. No statute requires a telegraph company to communicate to the public dispatches which it has received from other individuals, to be transmitted to specified persons. On the contrary, such a communication is prohibited. I cannot see that it makes any difference whether a dispatch is given to a telegraph company to be communicated to a single individual, or to be communicated to 10, 100, or 1,000 individuals., Under this agreement between the stock exchange and the respondents, certain information is given to the telegraph company to be communicated to individuals or corporations designated by the stock exchange. Whether we call this information a special dispatch, or general information which the stock exchange desires to communicate, seems to me to be entirely immaterial. The fact that the telegraph company pays to the stock exchange a certain sum of money for the information which it receives to transmit is also immaterial. The substance is that those to whom this information is directed to be given by the stock exchange are willing to pay the stock exchange for such information, and are also willing to pay the telegraph company the expense of transmitting the information. The information delivered to the respondents for transmission is a communication which the stock exchange wishes to transmit to the persons it designates, and to no one else. I can see no reason why the stock exchange should be required to furnish the appellant with
We are referred to several cases from other states,—notably, to the case of New York & Chicago Grain & Stock Exch. v. Board of Trade of City of Chicago, 127 Ill. 153, 19 N. E. 855, 2 L. R. A. 411. The Chicago Board of Trade was a corporation, and the powers of a court of equity over a corporation are much more extensive than over private individuals; but we cannot agree with that decision so far as it appears to justify an interference by the public or the courts with a voluntary association in the transaction of its business because the public desire information as to its transactions. There is, no doubt, much information as to the method by which large corporations, associations, or firms transact their business which would be quite valuable to their competitors, and interesting to the public; but this would hardly be considered as justifying an interference by the courts. The basis of that decision is that as the board had so conducted its affairs for a long term of years as to create a standard market in agricultural products, and, acting in concert or combination with the telegraph companies, built up a great system for the instantaneous communication of the market and its fluctuations, until the public and all persons dealing in such products conform their business to this system, it could not be allowed to create a monopoly in the matter of the market quotations, by furnishing them to some and refusing them to others. It is difficult to see why a voluntary association, because of the importance and character of its business and members, and of their transactions, could be compelled to transmit to a particular individual information of its transactions. It was said in the case last cited:
“We do not wish to he understood as holding that the board of trade is Pound by law to continue the business of furnishing to the public market quotations; but we hold that so long as it continues to carry on that trade, either directly or indirectly, it must do so without unjust discrimination as to persons.”
The doctrine established in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, and kindred cases, does not apply.- No property of the- stock exchange has been devoted to public use. The stock exchange excludes the public from its property; restricts the transactions therein to its own members; sends information of such transactions to those whom it designates as the persons that are to receive it. Information as to transactions upon the Stock Exchange is not such property as could be “clothed with a public interest,” so that a “grant to the public of an interest in that use” is to be implied. Such information is not property, in any sense, and the public or a particular individual has no right to go to this voluntary association, and insist that information of its transactions should be furnished.
I cannot think, therefore, that' the court had power to grant the relief asked for; and the order appealed from should be affirmed, with. $10 costs and disbursements. All concur.