Gemeroy v. Leopold

• Decision Date: 17 August 1948
• Citation: 79 F. Supp. 458
• Parties: GEMEROY et al. v. LEOPOLD.
• Court: U.S. District Court — Southern District of New York

79 F. Supp. 458

GEMEROY et al. v. LEOPOLD.

District Court, S. D. New York.

March 10, 1948.

Rehearing Denied August 17, 1948.

Campbell, Brumbaugh & Free, of New York City, for plaintiffs.

Rothbart & Rothstein, of New York City, for defendant.

MEDINA, District Judge.

The motion for leave to amend the complaint is granted and plaintiffs should prepare and serve an amended complaint in accordance with the paper dated February 3, 1948 entitled "Amendment to Complaint." The amendment to the complaint, supplemented by the proofs submitted, discloses sufficient to warrant a finding that the necessary jurisdictional amount is involved, subject to reconsideration at the trial when both sides have rested and the evidence is complete. The temporary restraining order dated January 20, 1948 is continued and plaintiffs' motion for a preliminary injunction is granted. Philadelphia Record Co. v. Leopold, D.C.,S.D.N.Y., 40 F.Supp. 346 (Rifkind, J.); Stockholders Publishing Co. Inc. v. Weinstein, Leopold et al.,¹ (Civil 15 — 83, Conger, J.).

Settle order on notice.

Findings of Fact and Conclusions of Law

This cause having come on to be heard on plaintiffs' motion for a preliminary injunction and the Court, after hearing the argument of counsel for the respective parties and upon consideration of the pleadings and affidavits of both parties filed herein, having granted said motion, Now, Therefore, pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court, being fully advised in the premises, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

(1) That plaintiff, Gordon Fraser Gemeroy, is a Canadian citizen who has declared his intention of becoming a citizen of the United States and is a resident of and domiciled in the State of Washington, residing at 3734 Belvedere Avenue, Seattle 6, Washington;

(2) That plaintiff, The Gemeroy Company, Inc., is a corporation organized under and existing by virtue of the laws of the State of Washington with an office and place of business at 504 Mutual Life Building, Seattle 4, Washington;

(3) That defendant, Jules Leopold, is doing business under the firm name and style of Puzzlers' Research Bureau and maintains an office and place of business at 8 West 40th Street, New York, New York, and resides in the City and State of New York;

(4) That there is diversity of citizenship between the respective plaintiffs and the defendant;

(5) That the matter in controversy as to each plaintiff exceeds the amount of Three Thousand ($3,000) Dollars, exclusive of interest and costs;

(6) That plaintiffs are engaged in the business of managing and conducting fund-raising campaigns; that in the usual fund-raising campaign plaintiffs enter into a contract with a sponsoring charity or foundation which contract usually provides that plaintiffs, subject to approval by a contest committee appointed by the sponsors, shall supervise, conduct and manage all puzzle contests initiated for the purpose of raising the campaign funds, in return for which plaintiffs receive a percentage of the gross proceeds derived by such contests;

(7) That plaintiffs, as contest manager and supervisor, are agents of and in privity with the sponsoring charity or foundation and the contest committee appointed thereby;

(8) That in the normal course, the fund-raising campaign is commenced by a published announcement which states the charity or purpose for which the campaign funds are to be raised and that any person donating a certain specified sum to the charity or foundation is thereby qualified to take part in the puzzle contest described in such published announcement for the winning solutions to which certain designated prizes are provided;

(9) That the usual contest provides for different prize payments for each of the top winning places, depending upon the amount of the contribution made by the contestant to the campaign fund;

(10) That the initial contribution which the contestant elects to make carries the contestant through the preliminary puzzle and all subsequent tie-breaker puzzles which may be necessitated in order to determine the prize winners, although the contestant may add to or increase his contribution at his option;

(11) That the puzzle contests conducted and supervised by plaintiffs are in fact contests of skill;

(12) That the usual contest rules provide inter alia the following:

(a) It is contrary to the rules for a contestant to accept help from anybody outside of his immediate family (b) Every contestant agrees and consents to all of the rules of the first or succeeding puzzles;

(c) Failure to comply with all the rules disqualifies a contestant's entry;

(13) That at the time a contestant submits his answer to the preliminary puzzle in the contest he enters into a unilateral contract wherein he agrees to abide by the rules of any succeeding puzzle involved in the contest (that is, tie-breaker puzzle) which may be necessitated to...