Collister v. Hayman

• Citation: 183 N.Y. 250,76 N.E. 20
• Parties: COLLISTER v. HAYMAN et al.
• Decision Date: 05 December 1905
• Court: New York Court of Appeals

183 N.Y. 250

76 N.E. 20

COLLISTER

v.HAYMAN et al.

Court of Appeals of New York.

Dec. 5, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by William H. Collister against Albert Hayman and others. From a judgment of the Appellate Division (86 N. Y. S. 1132, 91 App. Div. 612), affirming a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff brought this action to restrain the defendants, as proprietors of the Knickerbocker Theater, in the city of New York, from interfering with his business of selling, on the sidewalk and outside of the prohibited limits, tickets of admission to that theater. He alleged in his complaint that at the times therein mentioned he was ‘a licensed theater ticket speculator,’ while the defendants were managers of the Knickerbocker Theater. In December, 1901, the defendants issued tickets of admission to their theater, and, among others, two with coupons attached, numbered, respectively, ‘aa5’ and ‘aa7.’ The body of the tickets, printed in several lines, was as follows: ‘Knickerbocker Theater, Al. Hayman & Co., Proprietors. December 3, Tuesday evening. Orchestra, $2.00. If sold on the sidewalk, this ticket will be refused at the door. Evenings at 8: 15.‘ The coupons bore the number of the seats, the date, name of the theater, etc. The plaintiff further alleged that on the 3d of December, 1901, he came lawfully into the possession of a large number of tickets of admission to various seats in said theater, including those above described, and on the evening of that day he was on the street, ‘more than five feet removed from any point of the entrance to the Knickerbocker Theater,’ engaged in offering such tickets for sale. The defendants, however, interfered with him in carrying on the sale of tickets by warning persons about to purchase not to purchase from him, and by stating to them that the management would not recognize such tickets, and that those so purchasing would not be admitted to the theater. The defendants at the time and for at least a month before had stationed in front of their theater, at each side of the entrance thereto, large signs, five by seven feet, with the following words conspicuously painted upon them: ‘Tickets purchased on the sidewalk will positively be refused at the door.’ Furthermore, the defendants, on the evening in question as well as previously, had stationed near the entrance to the theater private detectives to warn those intending to purchase tickets from the plaintiff not to do so, and informing them that if they bought tickets from him they would not be admitted to the theater and that he had no right to sell any tickets of admission, even though they had been duly issued by the proprietors. The plaintiff finally alleged that by the methods thus described the defendants had prevented many people from purchasing tickets of him; that the selling of theater tickets was his sole business, from which he derived an income of at least $4,000 a year; and that by means of the premises, as well as by threats to continue such acts, he was prevented from carrying on a lawful calling. The relief demanded was an injunction restraining the defendants from doing the acts complained of and for the sum of $4,000 damages. The defendants answered, admitting many of the allegations of the complaint, and putting at issue the remainder. Upon the trial at Special Term the motion of the defendants to dismiss the complaint upon the pleadings was granted, and the judgment entered accordingly was unanimously affirmed by the Appellate Division. The plaintiff appealed to this court.

Max D. Steuer, for appellant.

Nathaniel Cohen, for respondents.

VANN, J. (after stating the facts).

A theater may be licensed, like a circus; but the license is not a franchise, and does not place the proprietors under any duty to the public, or under any obligation to keep the theater open. The license of a ‘ticket speculator,’ so far as it has any validity, simply authorizes him to conduct his business on the sidewalk, within the limits prescribed. City Charter Laws 1897, pp. 21, 22, 519, c. 378, §§ 50, 51, 1472, 1473. Neither the license to the owner of the theater nor the license to the ticket speculator adds to or takes from the rights of the parties to the contract made when the proprietor sells a ticket. The rights of the purchaser and the duties of the proprietor are measured by the terms of the contract as in fact made. ‘The privilege accorded by the city authorities cannot change the inherent nature of a theater ticket.’ The ticket is not the contract, although to some extent it is evidence thereof. The contract is implied from the circumstances, and is an agreement on the part of the proprietor, for the consideration mentioned, to admit the holder of the ticket, upon presentation thereof, to his theater at the date named, with the right to occupy the seat specified and to there witness the performance. A theater ticket is a license, issued by the proprietor, pursuant to the contract, as convenient evidence of the right of the holder to admission to the theater at the date named, with the privilege specified, subject, however, to his observance of any reasonable condition appearing upon the face thereof. The license, although granted for a consideration, is revocable for a violation of such condition by the holder of the ticket in the manner specified therein. Purcell v. Daly, 19 Abb. N. C. 301; Wood v. Leadbitter, 13 M. & W. 838; Burton v. Scherpf, 1 Allen, 133, 79 Am. Dec. 717;McCrea v. Marsh, 12 Gray, 211, 71 Am. Dec. 745;Greenberg v. Western Turf Association, 140 Cal. 357, 73 Pac. 1050; 28 Am. & Eng. Encyc. (2d Ed.) 124; Pingrey's Extraordinary Contracts, § 509; Wandell's Law of the Theater, 221; Goddard's Bailments & Carriers, § 333.

The main question presented for decision is whether the defendants had the right to make a contract with purchasers upon the condition printed in the ticket. There is no restraint by statute against such a condition, and it is not opposed to public policy. There is no tendency toward monopoly, for any one can buy and sell theater tickets, provided the sales are not made on the sidewalk, where the tickets themselves provide they cannot be sold. The law does not prevent the proprietor of a theater from making reasonable regulations for the conduct of his business, and imposing such reasonable conditions upon the purchasers of tickets as in his judgment will best serve the interests of that business. A ticket speculator is one who sells at an advance over the price charged by the management. Speculation of this kind frequently leads to abuse, especially when the theater is full and but few tickets are left, so that extortionate prices may be exacted. A regulation of the proprietor, which tends to protect his patrons from extortionate prices, is reasonable, and he has the right to make it a part of the contract and a condition of the sale. Unless he can control the matter by contract and by conditions...