106 Misc. 43 | N.Y. Sup. Ct. | 1919
This is a motion by the plaintiff, a newsdealer, for an injunction pendente lite restraining the defendants, who are publishers and distributors of certain New York newspapers, from refusing to deliver to the plaintiff the respective newspapers published by the defendants above named (other than the defendant Star Company), except upon the condition that the plaintiff shall handle and retail all the newspapers published by all the defendant publishers without discrimination, including the newspapers published by the defendant Star Company, i. e., the New York American and the Evening Journal. The action is brought to obtain a permanent injunction.
The complaint alleges that the plaintiff conducts a store for the sale of newspapers, magazines, stationery and cigars and similar articles at No. 240 Flatbush avenue, Brooklyn, and has conducted such store for more than five years last past. It further alleges that the defendants, other than the defendants Bridgman, Palmer and Blood, “ owned and controlled substantially all of the leading newspapers circulated in the city of New York and in the borough of Brooklyn with the exception of the New York Tribune and the
It is further alleged in the complaint “ that each of the evening newspapers published by the defendant publishers is distributed to retailers by route men employed by the said publishers.” Plaintiff further alleges that prior to August 19, 1918, he dealt in all the Hew York newspapers, both morning and evening; that prior to that date he purchased and sold on week days upwards of 250 of the Hew York evening papers; that at the time of the declaration of war by the United States the plaintiff had been carrying for sale news
The plaintiff further' alleges, on infortnation and belief, “ that on or before the said 19th day of August,
The affidavits and reply affidavits submitted on this application are voluminous, and deal with some matters which seem to have little, if any, bearing on the merits of the application; but the main contentions of the plaintiff regarding the facts are not disputed. For example, it is admitted by the affidavit of the defendant Bridgman “ that the association notified the defendant American News Company to refuse morning papers to dealers who discriminated against any one of said morning papers,” and by the affidavit of the defendant Palmer “ that deponent, as secretary
It therefore seems to be clearly established that, if this motion be denied, and if the plaintiff shall, pending the trial of this action, persist in his refusal to receive and offer for sale copies of the New York American and of the New York Evening Journal upon the same scale and displaying them upon his stand in the same manner in which he was formerly accustomed to order and display such papers, the defendants, other than the Star Company, will refuse to sell to the plaintiff copies of their respective publications.
It is urged on behalf of the plaintiff that the acts
General Business Law — “ Section 340. Contracts for monopoly illegal and void. — - Every contract, agreement, arrangement or combination whereby a monopoly in the manufacture, production or sale in this state of any article or commodity of common use is or may be created, established or maintained, or whereby competition in this state in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this state of the manufacture, production or sale of any such article or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy, illegal and void.”
Stock Corporation Law — “ Section 14. Combinations prohibited.— No domestic stock corporation and no foreign corporation doing business in this state shall combine with any other corporation or person for the creation of a monopoly or the unlawful restraint of trade or for the prevention of competition in any necessary of life.”
Penal Law (§ 580, subds. 5 and 6) — “ If two or more persons conspire: * * *
“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; or,
“6. To commit any act "injurious to the public
“ Each of them is guilty of a misdemeanor.”
The plaintiff contends that the action of the defendants, other than the Star Company, in refusing to supply him with their publications, unless he shall continue to purchase a fixed number of copies daily of the New York American and of the New York Evening Journal, is an unlawful conspiracy and combination to prevent him from exercising free conduct and control over his business.
The defendants contend that there is nothing illegal in their actions; that they are actuated simply and solely by a desire to protect themselves against what they believe to be a plan on the part of the plaintiff and other newsdealers to indulge in a boycott against such of the papers as refuse to reduce the wholesale price from $1.40 per 100 to $1.20 per 100, and that the Star Company was selected as the first of a series of victims of such boycott.
If the plaintiff be right in his contention, then I think he would be entitled to the judgment for which he asks. As was said in Klingel’s Pharmacy v. Sharp, 104 Md. 218: “A combination is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief; and the same proposition in one form of expression or another, is laid down in all of the criminal law.” A criminal conspiracy is not alone one which consists of an unlawful combination to do an act unlawful in itself; it may be also a conspiracy to do or accomplish a lawful act by unlawful means. See, also, Watson v. Harlem & N.
It is vigorously urged in the able and voluminous briefs of the defendants that, in refusing to sell their papers to the plaintiff, unless he shall purchase the so-called “ Hearst ” papers, they are not engaged in an unlawful combination or conspiracy, but are actuated only by a desire to take all lawful steps to protect themselves in the conduct of their own business.' In other words, they contend, as was said in Collins v. American News Co., 34 Misc. Rep. 260, 263: “ the defendants seek not to injure the plaintiff, but to protect themselves.”
No advantage at all commensurate with the labor involved could be derived from a review in this opinion of the very numerous authorities cited by the defendants upon their briefs and which they claim support their contentions. I am no disrespecter of judicial authority, but I have found from a somewhat extended experience that industrious and clever counsel are usually able, out of the enormous mass of judicial writing upon the shelves of our libraries, to-pluck sentences, expressions or dicta which seem to
In the present case I am convinced, both by reason and authority, that the plaintiff is right in his position and that the defendants are wrong in theirs. In Auburn Draying Co. v. Wardell, 178 App. Div. 270, 279, we find the following language: “ In determining whether the intent actuating the members of the combination was legal or otherwise, we have the aid of various statutory enactments. If the acts complained of in fact violate some express statutory provision, then clearly that may be prohibited and at the suit of a private suitor. (Kellogg v. Sowerby, 190 N. Y. 370; Rourke v. Elk Drug Co., 75 App. Div. 145.) In this connection attention is directed to section 580 of the Penal Law, which provides by subdivisions 5 and 6 as follows: ” [here follow subdivisions 5 and 6 of section 580 of the Penal Law, supra.] “ It would seem that the acts found by the trial court do offend subdivision 5 of the above section 580 of the Penal Law in that they were designed to prevent the plaintiff from exercising a lawful trade or calling by threats of interference with property belonging to it. Such a conception requires that the word ' property ’ in this instance shall be construed to include the good will and patronage of the plaintiff. For such conclusion there is judicial authority. (People v. Davis, 159 App. Div. 464; Newton Co. v. Erickson, 70 Misc. Rep. 291, affirmed without opinion, 144 App. Div. 939.)
“ But besides and beyond this statute to combine for the purpose of the destruction of another’s business is unlawful at common law and such seems to have been the uniform holding of our courts from the time of Curran v. Galen, and we, therefore, return to the consideration of the evidences of such a purpose to be found in this record.
“ The intent and object of this combination were properly handled by the trial court as a question of fact. Intent is always a fact. It deals with the mental operations of the conspirators.”
The facts in the case, as established upon the present state of the record, can hardly be said to be in dispute. They clearly point to a combination or conspiracy on the part of the defendants to use the tremendous force of their united power to compel the plaintiff to regulate his business under the direction of the defendants at the hazard of depriving him of the supplies upon which his business depends, and thus to prevent him from competing with such other newsdealers as would transact and carry on their business under the conditions which the defendants should choose to prescribe. In this lies the essence of the case
Upon an application for the continuance of a preliminary injunction, it is not necessary that a case should be made out that would entitle the complainant to relief at all events on the final hearing. If the complainant has made out a prima facie case, or if from the pleadings and the affidavits it appears to the court that a case is presented proper for its investigation on a final hearing, a preliminary injunction may issue to maintain the status quo. 22 Cyc. 941, citing Litchfield v. City of Brooklyn, 10 Misc. Rep. 74, in which case it was said: ‘ ‘ The plaintiffs are entitled to an injunction, pending the suit, provided they make out a prima facie ease, and provided they are willing to do what is right and equitable under the circumstances. It is not necessary that they should show an absolute right to a final injunction. If the court is of opinion that the case, even on a single question, requires a more careful consideration than can be given on the hearing of a motion, then the preliminary injunction should issue and, on a full and fair hearing at the trial, the questions of law and fact may be determined.”
It seems to the court that this is peculiarly and particularly a case in which the rule just quoted should be applied. If the temporary injunction shall not be granted, and if the preliminary injunction contained
The motion will, therefore, be granted, with costs, and the injunction pendente lite prayed for will be issued.
Motion granted.