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THEATER TICKETS. Laws 1895, p. 974, c. 1042, entitled "An act to protect all citizens in their civil and legal rights," does not apply to a provision in a clause in a theater ticket rendering it void if sold by the purchaser on the sidewalk.

4. SAME-CONTROL OF PROPERTY.

The liberty of a purchaser to sell his property is not involved in a condition in a theater ticket that it shall be void if sold by the purchaser on the sidewalk, as such purchaser may sell it to any person and in any place, except in the one prohibited by the contract.

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 (68 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, 8 509; 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 appearing upon the face of the ticket, which is evidence of the contract, he may not be able to control it at all, but must leave his patrons to the mercy of speculators, such as the plaintiff, who, as he alleges, was accustomed to make at least $4,000 a year from his business. That amount, of course, came out of patrons of the theater; and if other

ticket speculators, carrying on the same business at various theaters in the city of New York, are equally successful, the additional expense to theatergoers must be very large.

The defendants were conducting a private business, which, even if clothed with a public interest, was without a franchise to accommodate the public, and they had the right to control it, the same as the proprietors of any other business, subject to such obligations as were placed upon them by the stat ute hereinafter mentioned. Unlike a carrier of passengers, for instance, with a franchise from the state, and hence under obligation to transport any one who applies and to continue the business year in and year out, the proprieters of a theater can open and close their place at will, and no one can make lawful complaint. They can charge what they choose for admission to their theater. They can limit the number admitted. They can refuse to sell tickets and collect the price of admission at the door. They can preserve order and enforce quiet while the performance is going on. They can make it a part of the contract and a condition of admission, by giving due notice and printing the condition in the ticket, that no one shall be admitted under 21 years of age, or that men only or women only shall be admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like. The proprietors, in the control of their business, may regulate the terms of admission in any reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon the condition, and the purchaser impliedly promises to perform it. There is no rule of law that prevents the enforcement of the contract in the manner provided thereby, which is to refuse admission to the holder of a ticket who bought it on the sidewalk. Where the condition is part of the contract at its origin, it continues a part thereof as long as it exists, and binds all subsequent holders with notice.

The case would be very different if, after the sale of a ticket containing no evidence of the restriction, an attempt were made to enforce it against a purchaser without notice. The purchaser is warned in advance of what he is buying. He has notice before he buys of the condition which the proprietors saw fit to make a part of the contract. He acts with his eyes open, and if he does not like the condition he need not buy; but, if he buys, he impliedly assents to the condition, which controls, not only himself, but any purchaser from him. When the plaintiff came lawfully into the possession of the tickets in question, with others, as he alleges, he had notice of the condition which appeared upon the face thereof, and was bound thereby. He bought subject to that condition, and every right he acquired was subordinate

thereto. The ticket was assignable; for there was no restriction in the contract against selling it, except in a particular place, and a transfer could be made by simple delivery. The plaintiff, therefore, took it with the right to sell to any person at any time and in any place that he saw fit, provided he did not violate the condition, which imposed no unreasonable restraint upon the assignability of property. When he tried to sell on the sidewalk, he clearly acted in defiance of the contract, and violated the condition to which he had given an implied assent. With notice that, if he sold the ticket on the sidewalk, it would be refused at the door, he was attempting to sell on the sidewalk, when the defendants, by their signs and agents, warned intending purchasers that the condition wouid be enforced, and that the holder of a ticket purchased from him under such circumstances would be denied admission. The defendants did nothing but notify people, so that they could not be imposed upon by him and induced to purchase tickets which would be of no use, because sold in violation of the contract.

This is not a case involving the liberty of the plaintiff to sell his property; for he could sell it to any person and in any place, except in the one prohibited by the contract which constituted the property. The contract did not interfere with his absolute freedom of action, except to this limited extent, duly agreed upon in advance; while he attempts to interfere with freedom of contract on the part of the defendants by restraining them from enforcing an agreement which they had made and to which he had assented. Restraint by statute and restraint by contract are quite different. What the parties to a contract agree upon is valid almost without limitation, but what the Legislature may prohibit parties from agreeing upon is subject to the limitations of the fundamental law. Those limitations do not bear upon the case now before us. Our recent decision in People ex rel. Tyroler v. Warden, etc., 157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763, relied upon by the appellant, is not analogous. We there adjudged unconstitutional a statute which prohibited as a crime the selling of transportation tickets by any person except common carriers and their specially authorized agents, in so far as it undertook to prohibit citizens of the state from engaging in the business of brokerage in passenger tickets. This case involves, not a statute, but a contract, which excludes no one from carrying on the business of selling theater tickets, but simply prevents a sale thereof on the sidewalk in violation of the express stipulation of the tickets themselves.

The statute entitled "An act to protect all citizens in their civil and legal rights" has no application. Laws 1895, p. 974, c. 1042; People v. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. That act

provides for the equal accommodation of all persons in "places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens." It makes it a misdemeanor to deny "to any citizen, except for reasons applicable alike to all citizens of every race, creed, or color, and regardless of race, creed, and color, the full enjoyment of any of the accommodations, advantages, facilities, or privileges" enumerated in the statute, including theaters by specific mention. This has no bearing upon the resale of tickets in violation of a contract made with the original purchaser. It was especially designed to prevent the exclusion from "places of public accommodation or amusement" of any one on account of race, creed, or color, and apparently was also intended to prevent any discrimination founded on rank, grade, class, or occupation. The contract and tickets in question did not discriminate against any person on account of any reason named in the statute, for the same condition is imposed upon all, and all are treated alike. The holder is not excluded because he bought of the plaintiff, but because he bought in the prohibited place. The plaintiff was not excluded, for he could have used the tickets himself. No class of persons was excluded, such as lawyers, doctors, merchants, or mechanics, but simply those who bought in violation of the terms of the contract after notice thereof.

We think that the contract with the original purchaser of the tickets was valid, that the express condition named therein bound all subsequent purchasers, and that it could be enforced in the manner provided thereby. The judgment should therefore be affirmed, with costs.

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Where a wife sues to annul a marriage on the ground that her husband was insane when the marriage was contracted, the Supreme Court has no power to award her counsel fees and alimony pendente lite, as she by such action is electing to rescind the marriage contract, and therefore cannot insist that she is entitled to the rights of a wife under a valid marriage until the decree is rendered.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Marriage, § 137.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Jessie M. Jones, otherwise known as Jessie M. Brinsmade, against Charles L. Brinsmade. From an order of

the Appellate Division (93 N. Y. Supp. 674, 104 App. Div. 619), affirming an order of the Special Term granting an application for counsel fees and alimony in an action to annul a marriage, defendant appeals. Reversed.

James C. Bergen, for appellant. William M. Wherry, Jr., and W. Osgood Morgan, for respondent.

CULLEN, C. J. The question presented by this appeal and certified by the court below is: "In an action brought by a wife against her husband to annul their marriage on the ground that the husband was insane at the time the marriage was contracted, has the Supreme Court jurisdiction and power to grant an application made by the plaintiff-the wife that the defendantthe husband-be compelled to pay her alimony pendente lite and counsel fee, and to make an order directing such payments to be made by defendant?" While neither the Revised Statutes nor the present Code authorize in express terms the court to award alimony and counsel fee in an action to annul a marriage, it has been the settled law under both systems of statutory procedure that the court has such power where the action is brought against the wife. North v. North, 1 Barb. Ch. 241, 43 Am. Dec. 778; Griffin v. Griffin, 47 N. Y. 134; Higgins v. Sharp, 164 N. Y. 4, 58 N. E. 9. The learned counsel for the appellant concedes this proposition, but contends that under the equally well-settled rule prevailing in this state alimony and counsel fee will not be granted the wife when she seeks to annul the marriage on account of its original invalidity. No express statutory authority being given, the power of the court to make such an allowance is sustained as incidental to the statutory jurisdiction to entertain an action to annul a marriage. See cases cited above. Therefore, especially in an action of this character, more than in an action for divorce, is the rule stated by Judge Rapallo, in Collins v. Collins, 71 N. Y. 269, applicable: "Where the facts are such that, on general principles of equity, a plaintiff is not entitled to demand alimony, the question becomes one of law, reviewable in this court." Though the exact point has not been determined by this court, the doctrine seems to have been well established in the old court of chancery that where a wife files a bill against her reputed husband to annul a marriage, upon any cause which goes to the legality of the marriage originally, the allegations in her bill will be taken as true against herself, and an allowance to her to maintain the suit will be denied (North v. North, supra; Bartlett v. Bartlett, Clark's Ch. 322); and since the abolition of the court of chancery the great weight of authority in the Supreme Court is to the same

effect (Bloodgood v. Bloodgood, 50 How. Prac. 42; Isaacson v. Isaacson, 3 N. Y. Law Bul. 73; In re Michaelson, 25 N. Y. Daily Register; Meo v. Meo, 22 Abb. N. C. 58, 2 N. Y. Supp. 569; Herron v. Herron, 28 Misc. Rep. 323, 59 N. Y. Supp. 861). In Griffin v. Griffin, supra, the question was as to the power of the court to award alimony and counsel fee in an action brought against the wife to annul the marriage; but Judge Rapallo, speaking for this court, recognizes the rule to be as I have stated, saying: "It is also very properly restricted to cases where the wife admits the existence of a valid marriage and seeks a divorce or separation for subsequent misconduct of the husband. Where she denies the existence of the marriage, she cannot consistently claim that the defendant is under any obligation to provide her with means to carry on her suit against him." In Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, though like the last case in that the point was not involved, Judge Folger makes a similar statement: "In an action by the wife for divorce or by the husband for a decree that the marriage is null, in which the putative wife avers the existence and legality of the marriage, though the alleged husband denies it, the court may, in its discretion, allow to the putative wife temporary alimony and money to carry on the action from the means of the alleged husband." In Higgins v. Sharp, supra, the question was the same as in the Griffin Case, and there is nothing to be found in the opinion rendered by Judge O'Brien intimating that alimony should be allowed a wife seeking to establish the invalidity of her marriage.

Counsel for the respondent cites three cases as sustaining a contrary rule. Allen v. Allen, 59 How. Prac. 27, was a suit by the wife to annul a marriage for the impotency of the husband. Alimony and counsel fee were awarded. The case was decided at Special Term, without opinion and without the citation of authority for its support. Anonymous, 15 Abb. Prac. (N. S.) 307, is not in point. There the husband obtained by default a decree against his wife annulling the marriage, and again married. The first wife had the decree opened and was allowed to defend. Thereafter the second wife was permitted to intervene in the action, apparently on a suspicion that the opening of the decree was an artifice by the husband to get rid of her. The court allowed the intervening wife counsel fee. The situation in that case was the exact reverse of this. Counsel fees were allowed to a woman who sought to sustain the validity of her marriage, not to avoid it. Finally we have Gore v. Gore, 103 App. Div. 74, 92 N. Y. Supp. 634. There alimony and counsel fee were awarded a wife seeking to annul a marriage for the impotency of her husband. The learned court was of opin ion that, the marriage being void under the

76 NORTHEASTERN REPORTER.

statute (section 4, art. 1, Domestic Relations Law) from the time its nullity was declared by a court of competent jurisdiction, until that time the plaintiff possessed the same rights and was entitled to the same favor as a wife by a marriage concededly valid in an action brought against her husband for his subsequent misconduct. In support of this position the respondent cites the section of the domestic relations law referred to. But a comparison of that section with 2 Rev. St. p. 138, part 2, c. 8, tit. 1, § 4, will show that the later statute, so far as it relates to the question before us, is but a re-enactment of the earlier statute, the words not being changed, but being transposed in the order in which they are found. There is, therefore, no change in legislation which justifies any change in the rule that has hitherto obtained.

Conceding that the marriage of a lunatic is voidable, not void, and that it becomes void only upon a decree annulling the marriage; does it follow that, while electing to have her marriage declared void, a plaintiff can insist that she is entitled to all the rights of a wife under a valid marriage until the time the decree is rendered? I think the learned court in the Gore Case failed to appreciate that the status of the parties established by the decree of nullity necessarily relates back to the time of the contract of marriage. This is the rule applicable to other contracts sought to be rescinded for fraud or other infirmities. He who elects to rescind a contract can claim nothing under it. As to the effect of a decree of nullity it is said by Mr. Bishop (1 Marriage and Divorce, § 118): "The doctrine may have a limit under the operation of the statute, but it appears to be universal under the unwritten law that, when a voidable marriage has been set aside by a decree of nullity, the parties are regarded as having never been married. For example, the children, before legitimate, become by force of the decree illegitimate, and the late husband is treated with having never acquired any right to the property of the wife, though the claims of third persons are to some extent respected." The same is true of the property rights of the wife. This rule, so far as it affects the issue of the marriage, has to some extent been modified by our statute. The child of a marriage annulled on the ground of the lunacy of one of its parents is regarded as the legitimate child of the parent who was of sound mind. Code Civ. Proc. § 1759. Such being the effect of a decree annulling a marriage, even though the marriage is only voidable, it seems both unjust and inconsistent that a wife should be allowed alimony and counsel fee out of her husband's estate to establish the invalidity of her marriage, on the theory that by virtue of the marriage relation the husband is bound to provide for her, when if she is successful in that suit her status will be the same as if she had never married him.

(N. Y.

The orders of the Appellate Division and the Special Term should be reversed, and the motion denied, but without costs in any court.

GRAY, J. I agree with the Chief Judge that this appeal should be sustained. In the absence of any provision of our statutes which authorizes an award of alimony and of counsel fee, when the action is brought to annul the marriage between the parties, and such, as being incidental to its jurisdiction conceding to the court the authority to make to entertain the action, it seems to me very clear that the power cannot, with any legal propriety, be exercised in such a case as this. I am for asserting the rule that where the wife, as here, declares her marriage to have been null, and for that cause seeks to have the marriage contract adjudged to have been void, she has no more an equitable ground than she has a legal reason for demanding that the defendant's estate be charged with her support. When she is in the position of asserting the validity of her marriage, and is defending its validity, she may consistently invoke the power of the court to compel a provision for her maintenance and defense until the action has determined the relations of the parties; and, while I did not take part in the decision of Higgins v. Sharp, I recognize it as authority upon this proposition, and no further.

O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. Ordered accordingly.

(183 N. Y. 264)

PEOPLE ex rel. FARCY & OPPENHEIM
CO. v. WELLS et al., Tax Com'rs.
(Court of Appeals of New York. Dec. 5, 1905.)
ΤΑΧΑΤΙΟΝ - FOREIGN CORPORATIONS-DOING
BUSINESS IN THE STATE.

Where a foreign corporation is continuously engaged within the state in the importation and sale of foreign goods and has an office in the city of New York, where the proceeds of the sales of such goods are received and deposited in a bank and all the expenses of the business in the country are defrayed out of the bank account, the surplus only being remitted to the home office in France, it is doing business in the state and liable to taxation, under Laws 1896, p. 800, c. 908, § 7.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 286.]

Appeal from Supreme Court, Appellate Division, First Department.

Farcy & Oppenheim Company, against James Action by the people, on the relation of the L. Wells and others, as commissioners of taxes and assessments of the city of New York. From an order of the Appellate Division (93 N. Y. Supp. 1143, 104 App. Div. 629), affirming an order of the Special Term (87 N. Y. Supp. 84) reducing an assessment for the purpose of taxation against the capi

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