Interborough News Co. v. Curtis Publishing Co.
| Decision Date | 22 November 1954 |
| Citation | 127 F. Supp. 286 |
| Parties | INTERBOROUGH NEWS COMPANY, Plaintiff, v. The CURTIS PUBLISHING COMPANY, Curtis Circulation Company, Triangle Publications, Inc., S-M News Company, Inc., McCall Corporation, Popular Science Publishing Company, Inc., Meredith Publishing Company, Reader's Digest Association, Inc., Hearst Magazines, Inc., Fawcett Publications, Inc., Macfadden Publications, Inc., Hillman Periodicals, Inc., National Comics Publications, Inc., Independent News Co., Inc., Publishers Distributing Corporation, Field Enterprises, Inc., Pocket Books, Inc., Walter D. Fuller, Benjamin Allen, Ray C. McLarty, Victor E. Lance, Marvin Pierce, William A. Rogers, Robert E. Haig, Roscoe Fawcett, Allan Adams, O. J. Elder, Sol N. Himmelman, Alexander L. Hillman, Philip Keenan, Paul H. Sampliner, Harry Donenfeld, Irving S. Manheimer, Robert F. DeGraff, Wallis E. Howe, Jr., S. O. Shapiro and George B. Davis, Defendants, and Jules Stolz, Almond E. Booth, George P. Booth, and Herbert Meyer, Additional Defendants to the Counterclaims of Defendants Curtis Circulation Company, Triangle Publications, Inc., and Fawcett Publications, Inc. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Webster, Sheffield & Chrystie, New York City, for plaintiff, and additional defendants to the counterclaims Jules Stolz, Almond E. Booth, George P. Booth, and Herbert Meyer; Bethuel M. Webster, John V. Lindsay, and Denis R. Sheil, New York City, of counsel.
Cravath, Swaine & Moore, New York City, for defendants The Curtis Publishing Co., Curtis Circulation Co., Walter D. Fuller, Benjamin Allen, and Victor E. Lance; Albert R. Connelly, Edward C. Perkins, and Justin S. Colin, New York City, of counsel.
Whitman, Ransom & Coulson, New York City, for defendants S-M News Co., Inc., McCall Corp., Meredith Publishing Co., Popular Science Publishing Co., Inc., William A. Rogers and Marvin Pierce; Forbes D. Shaw, E. Kendall Gillett, Jr., and Daniel F. Callahan, New York City, of counsel.
Lord, Day & Lord, New York City, for defendant Reader's Digest Association, Inc.; Thomas F. Daly, and John W. Castles, III, New York City, of counsel.
McCauley & Henry, New York City, for defendants Hearst Magazines, Inc. and Robert E. Haig; Thomas A. Brennan, and Clarence J. Shearn, New York City, of counsel.
DeWitt, Van Aken & Nast, New York City, for defendant Fawcett Publications, Inc.; C. Coudert Nast, and William R. Lonergan, New York City, of counsel.
Joseph Schultz, New York City, for defendants Macfadden Publications, Inc., O. J. Elder, Sol N. Himmelman and S. O. Shapiro; Joseph Schultz, and Joseph E. Ginn, New York City, of counsel.
Herman H. Solnit, New York City, for defendants Hillman Periodicals, Inc., Alexander L. Hillman and Philip Keenan; Thomas A. Brennan, of counsel.
Weil, Gotshal & Manges, New York City, for defendants National Comics Publications, Inc., Independent News Co., Inc., Paul H. Sampliner and Harry Donenfeld; Horace S. Manges, and Edward C. Wallace, New York City, of counsel.
Benjamin E. Winston, New York City, for defendants Publishers Distributing Corp., Irving S. Manheimer and George B. Davis.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendants Field Enterprises, Inc., Pocket Books, Inc., and Robert F. DeGraff; Samuel J. Silverman, and Jay H. Topkis, New York City, of counsel.
The defendants' motions to dismiss the complaint are granted.
In this opinion and appendix a number in parentheses ( ) denotes the page number of the printed trial record whereon testimony concerning the subject matter appears and a description and number in brackets denotes the identification mark of an exhibit received in evidence wherein the subject matter appears.
On December 13, 1949 Interborough News Company (hereinafter Interborough) filed its complaint against Curtis Publishing Company, Curtis Circulation Company (Curtis), Triangle Publications, Inc., (Triangle), S-M News Company (S-M), McCall Corporation, Popular Science Publishing Co., Inc., Meredith Publishing Company, Reader's Digest Association, Inc., Hearst Magazines, Inc. (Hearst), Fawcett Publications, Inc. (Fawcett), Macfadden Publications, Inc. (Macfadden), Hillman Periodicals, Inc. (Hillman), National Comics Publications, Inc., Independent News Company (Independent), Publishers Distributing Corporation (PDC), Field Enterprises, Inc., Pocket Books, Inc. (Pocket Books), Walter D. Fuller, Benjamin Allen, Ray C. McLarty, Victor E. Lance, Marvin Pierce, William A. Rogers, Robert E. Haig, Roscoe Fawcett, Jr., Allan Adams, O. J. Elder, Sol N. Himmelman, Alexander L. Hillman, Philip Keenan, Paul H. Sampliner, Harry Donenfeld, Irving S. Manheimer, Robert F. DeGraff, Wallis E. Howe, Jr., S. O. Shapiro and George B. Davis.
All said defendants were served with the summons and complaint or appeared herein except defendants Roscoe Fawcett, Allan Adams and Wallis E. Howe, Jr. (4). The defendant Ray C. McLarty died before trial and his estate has not been substituted herein (4). Independent News Co., Inc., appeared in place and stead of Independent News Company, and S-M News Company, Inc., filed an answer for S-M News Company.
The first amended answer of Curtis and the answers of Triangle and Fawcett each pleaded a counterclaim against the plaintiff and Jules Stolz, Alfred E. Booth, George P. Booth and Herbert Meyer, who were impleaded as additional defendants to the said counterclaims and who, with plaintiff replied thereto.
After the other defendants answered, plaintiff filed an amended complaint to which defendants answered, Curtis, Triangle and Fawcett reasserting their several counterclaims against the plaintiff and the additional defendants and Independent asserting a counterclaim against only the plaintiff which it subsequently during trial voluntarily dismissed (2731).
By stipulation filed herein on August 7, 1951, the plaintiff "discontinued" its action against defendant Triangle Publications, Inc., which in turn "discontinued" its counterclaim against the plaintiff and the said additional defendants. Thereupon some of the defendants filed supplemental answers asserting that the voluntary dismissal by the plaintiff of its suit against Triangle constituted a bar to the suit against said other defendants. The answers of the remaining defendants were, by a later pre-trial order deemed similarly amended.
After other intermediate proceedings, including the filing of further amended pleadings, motions addressed thereto and interrogatories, depositions and production of documents, the parties came to pre-trial.
When the pre-trial order was entered on August 13, 1953 the pleadings stood as follows: The complaint asserted a "first separate claim" against all defendants for $4,860,000 ($1,620,000 trebled) "for injury to its business and property by reason of the defendants' violation of Section 1 of the Sherman Act (15 U.S.C. § 1), and for the cost of the action, including a reasonable attorney's fee" (emphasis supplied) and a "second separate claim" against all defendants, except S-M and certain other corporate and individual defendants connected with it, for $57,102 ($19,034 trebled), costs and attorney's fee upon the same grounds as those of the "first separate claim" and finally it sought a permanent injunction against the continuance of the acts alleged in the first and second claims.
The answers denied the allegations of wrongdoing in the complaint, set up certain separate defenses and in the cases of Curtis, Fawcett and Independent asserted the counterclaims as aforesaid.
During the trial of the plaintiff's case its complaint was finally amended (2413) to plead in its first claim $5,996,556 ($1,998,852 trebled) damages "by reason of the defendants' violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2)" (emphasis supplied) and to plead in its second claim $38,070 ($12,690 trebled) damages upon the same grounds as those of the amended first claim.
The earlier pre-trial hearings resulted in the order, filed as aforesaid on August 13, 1953, wherein the issues to be tried were formulated by Judge Conger. Because of the plaintiff's amendment of its complaint during trial it became necessary to amend the pre-trial order appropriately and that was done (2486) so that the issues were finally formulated as follows:
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