Cоmplaint was made to a magistrate in the city of New York charging relator, Charles Burn-ham, 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 thе use or employment thereof. * * * Each of them is guilty of a misdemeanor.”
After examination before the magistrate, the relator, Bum-ham, was taken into custody by virtue of a commitment then issued. Thereupon he sued out a writ of habeаs corpus. After a hearing the Special Term made an order dismissing the *452 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 apрeal 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 Wallaek’s Thеater, situated at Thirtieth street and Broadway, in the city of Hew York; that the cause of imprisonment of petitioner is that he was and is a member of* an association of theater managers 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 meeting the petitioner called attention of the members to certain scurrilous, libelous and malicious attacks made by one James S. Metcalfe upon some of the members of the association, affecting their personal integrity and holding their religion up to ridicule; that petitioner at such meeting, or immediately after formal adjournment, presented and read to the members a written statement, as follows: “ The attention of this association is called to the following matter: A сertain writer on a certain periodical has for the past ten years persistently and without just cause libeled in its columns a large portion of our theater-goers and attacked the personal integrity_ of members of this association. Its continued malicious, vile and unjustifiable attacks upon those of the Jewish faith are unwarranted, and .as it may affect our business interests should receive attention from all managers. 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 fаith what it may —then some action should be taken to give the members of this *453 association so assailed its vote of confidence and support and to take necessary steps to prevent our business interests being injured.”
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 instanсes 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 theater managers and read the statement, after formal adjournment, to which- reference has already been made, and that later certain informal discussion and proceedings took place, when the managers separated. It also appears that sometime thereafter said James S. Metcalfe, although provided with tickets of admission, was, without undue violence, prevented from entering some nine theaters in the city of Hew York, many or all of which were managed or controlled by a member or members of the so-called “ Theater Managers Association.”
On this general state of facts, Metcalfe, acting as complainant, charged the relator, Burnham, with a violation of section 168, subdivision 5, of the Penal Code, 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 оf the warden of the city prison. *454 the relator duly traversed the same. A hearing was had be-
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 Code upon which the proceeding is founded. It is proved that the object of the relator, Burnham, and the other theater managers associated with him, was not to attack or rebuke Metcalfе in the legitimate exercise of his 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 appеaring 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 interest being injured.”
We have here a clear and uncontradicted avowal of the motive that led the managers to exclude Metcalfe from thеir respective theaters. It was not an attack upon his right to exercise his calling as a dramatic critic, but an effort on the part of the managers to protect themselves from public articles reflecting on their рersonal integrity and a protest against unjustifiable attacks upon their patrons and members of the Jewish faith. It would be quite out of place, owing to its character, to quote from an article (Exhibit A) written, signed and admitted by Metcalfe as genuine, and introduced in evidence by the relator, which is, to speak with moderation, an unexampled illustration of race bitterness and hatred. A dramatic critic indulging in such intemperate language may reasonably expect to arouse unpleasant antagonisms.
*455
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 absenсe 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,
In
Burton
v.
Scherpf
(
The holder of a ticket which entitles him to a seat at a given time in a place of amusemеnt, 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
(
We are of opinion that the relator and his associates in the *457 Theater Managers Association acted in the exercise of their strict legal rights.
The order of the Appellate Division appealed from should he affirmed, with costs.
Cullen, Ch. J., O’Brien, Haight, Vann, Hiscook and Chase, JJ., concur.
Order affirmed.