Trans-Lux Distributing Corp. v. Board of Regents of University of State of N.Y., TRANS-LUX

• Citation: 19 A.D.2d 937,244 N.Y.S.2d 333
• Decision Date: 21 November 1963
• Docket Number: TRANS-LUX
• Parties: Application ofDISTRIBUTING CORP., Petitioner, for an order pursuant to Article 78 of the Civil Practice Act, v. The BOARD OF REGENTS OF the UNIVERSITY Of The State OF NEW YORK, Respondent.
• Court: New York Supreme Court Appellate Division

Page 333

244 N.Y.S.2d 333

19 A.D.2d 937

Application of TRANS-LUX DISTRIBUTING CORP., Petitioner, for

an order pursuant to Article 78 of the Civil Practice Act,

v.

The BOARD OF REGENTS OF the UNIVERSITY Of The State OF NEW

YORK, Respondent.

Supreme Court, Appellate Division, Third Department.

Nov. 21, 1963.

Weisman, Celler, Allan, Spett & Sheinberg, New York City (Harry I. Rand, New York City), for petitioner.

Charles A. Brind, Jr., Albany (John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, on brief), for respondent.

Before BERGAN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

The decisions of the Supreme Court in Times Film Corp. v. City of Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72 and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 compel us to annul the determination of the Board of Regents. The sexual acts, which are implied rather than demonstrated, are an integral part of the play.

Determination annulled and matter remitted with a direction to license the film; with $50 costs.

BERGAN, P. J., and GIBSON, REYNOLDS and TAYLOR, JJ., concur.

HERLIHY, Justice, dissents, in a memorandum.

HERLIHY, Justice (dissenting).

I would affirm the order of the Board of Regents which deleted certain designated scenes from the motion picture. The portrayals therein go substantially beyond the accepted customary limits. They forthrightly depict the fulfillment of acts of sexual intercourse between the principal characters. Thus these delineations are sui generis rendering the usual test of obscenity impossible to apply with any reasonableness.