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(183 N. Y. 250)

he was on the street, "more than five feet COLLISTER 7. HAYMAN et al. removed from any point of the entrance to (Court of Appeals of New York. Dec. 5, 1905.) the Knickerbocker Theater," "engaged in oi1. THEATERS AND SHOWS/TICKETS-CONDI.

fering such tickets for sale. The defendants, TIONS.

however, interfered with him in carrying on A theater ticket is a license issued by the the sale of tickets by warning persons about proprietor, pursuant to the contract, as convenient evidence of the right of the holder to

to purchase not to purchase from him, and admission at the date named, subject to his ob by stating to them that the management servation of any reasonable conditions appearing would not recognize such tickets, and that on the face thereof, and is revocable for a violation of such condition.

those so purchasing would not be admitted to [Ed. Note.-For cases in point, see vol. 45,

the theater. The defendants at the time and Cent. Dig. Theaters and Shows, 8 4.] ,

for at least a month before had stationed in 2. SAME-VALIDITY.

front of their theater, at each side of the enA clause in a theater ticket providing that, trance thereto, large signs, five by seven feet, if sold by the purchaser at the sidewalk, it would with the following words conspicuously paintbe refused at the door, is valid and enforceable

ed upon them: “Tickets purchased on the as against all subsequent purchasers, where its purpose is to prevent the purchase of tickets by

sidewalk will positively be refused at the ticket speculators to resell at an advance over door.” Furthermore, the defendants, on the the price charged by the management.

evening in question as well as previously, [Ed. Note.-For cases in point, see vol. 45,

had stationed near the entrance to the Cent. Dig. Theaters and Shows, $ 4.]

theater private detectives to warn those in3. CONSTITUTIONAL LAW - CIVIL RIGHTS

tending to purchase tickets from the plaintiff THEATER TICKETS.

Laws 1895, p. 974, c. 1042, entitled "An act not to do so, and informing them that if to protect all citizens in their civil and legal they bought tickets from him they would not rights," does not apply to a provision in a clause

be admitted to the theater and that he had in a theater ticket rendering it void if sold by the purchaser on the sidewalk.

no right to sell any tickets of admission, 4. SAME_CONTROL OF PROPERTY.

even though they had been duly issued by the The liberty of a purchaser to sell his prop proprietors. The plaintiff finally alleged that erty is not involved in a condition in a theater by the methods thus described the defendants ticket that it shall be void if sold by the purchaser on the sidewalk, as such purchaser may

had prevented many people from purchasing sell it to any person and in any place, except in

tickets of him; that the selling of theater the one prohibited by the contract.

tickets was his sole business, from which he

derived an income of at least $4,000 a year; Appeal from Supreme Court, Appellate Di

and that by means of the premises, as well vision, First Department.

as by threats to continue such acts, he was Action by William H. Collister against

prevented from carrying on a lawful calling. Albert Hayman and others. From a judg

The relief demanded was an injunction rement of the Appellate Division (68 N. Y. S.

straining the defendants from doing the acts 1132, 91 App. Div. 612), affirming a judg

complained of and for the sum of $4,000 damment for defendants, plaintiff appeals. Al

ages. The defendants answered, admitting firmed.

many of the allegations of the complaint, and The plaintiff brought this action to restrain putting at issue the remainder. Upon the the defendants, as proprietors of the Knicker trial at Special Term the motion of the debocker Theater, in the city of New York, fendants to dismiss the complaint upon the from interfering with his business of selling, | pleadings was granted, and the judgment enon the sidewalk and outside of the prohibited tered accordingly was unanimously affirmed limits, tickets of admission to that theater. by the Appellate Division. The plaintiff He alleged in his complaint that at the times appealed to this court. therein mentioned he was "a licensed theater Max D. Steuer, for appellant. Nathaniel ticket speculator," while the defendants were

Cohen, for respondents. managers of the Knickerbocker Theater. In December, 1901, the defendants issued tickets VANN, J. (after stating the facts). A of admission to their theater, and, among theater may be licensed, like a circus; but others, two with coupons attached, numbered, the license is not a franchise, and does not respectively, "aa5" and "aa7." The body of place the proprietors under any duty to the the tickets, printed in several lines, was as public, or under any obligation to keep the follows: “Knickerbocker Theater, Al. Hay theater open. The license of a "ticket specuman & Co., Proprietors. December 3, Tues lator," so far as it has any validity, simply day evening. Orchestra, $2.00. If sold on authorizes him to conduct his business on the the sidewalk, this ticket will be refused at sidewalk, within the limits prescribed. City the door. Evenings at 8:15.” The coupons Charter Laws 1897, pp. 21, 22, 519, c. 378, 88 bore the number of the seats, the date, name | 50, 51, 1472, 1473. Neither the license to the of the theater, etc. The plaintiff further al. | owner of the theater nor the license to the leged that on the 3d of December, 1901, he ticket speculator adds to or takes from the came lawfully into the possession of a large rights of the parties to the contract made number of tickets of admission to various when the proprietor sells a ticket. The rights seats in said theater, including those above of the purchaser and the duties of the proprie. described, and on the evening of that day I tor are measured by the terms of the contract

as in r'act made. "The privilege accorded by , ticket speculators, carrying on the same busithe city authorities cannot change the in ness at various theaters in the city of New herent nature of a theater ticket.” The York, are equally successful, the additional ticket is not the contract, although to some expense to theatergoers must be very large. extent it is evidence thereof. The contract The defendants were conducting a private is implied from the circumstances, and is business, which, even if clothed with a puban agreement on the part of the proprietor, lic interest, was without a franchise to acfor the consideration mentioned, to admit the commodate the public, and they had the right holder of the ticket, upon presentation there to control it, the same as the proprietors of of, to his theater at the date named, with any other business, subject to such obligathe right to occupy the seat specified and to tions as were placed upon them by the stat. there witness the performance. A theater ute hereinafter mentioned. Unlike a carticket is a license, issued by the proprietor, rier of passengers, for instance, with a franpursuant to the contract, as convenient evi chise from the state, and hence under oblidence of the right of the holder to admission gation to transport any one who applies and to the theater at the date named, with the to continue the business year in and year out, privilege specified, subject, however, to his the proprieters of a theater can open and close observance of any reasonable condition ap their place at will, and no one can make lawpearing upon the face thereof. The license, ful complaint. They can charge what they although granted for a consideration, is re choose for admission to their theater. They vocable for a violation of such condition by can limit the number admitted. They can the holder of the ticket in the manner speci. refuse to sell tickets and collect the price of fied therein. Purcell v. Daly, 19 Abb. N. | admission at the door. They can preserve C. 301 ; Wood v. Leadbitter, 13 M. & W. 838; order and enforce quiet while the performBurton v. Scherpf, 1 Allen, 133, 79 Am. Dec. ance is going on. They can make it a part 717; McCrea v. Marsh, 12 Gray, 211, 71 of the contract and a condition of admission, Am. Dec. 745; Greenberg v. Western Turf by giving due notice and printing the conAssociation, 140 Cal. 357, 73 Pac. 1050; dition in the ticket, that no one shall be ad28 Am. & Eng. Encyc. (2d Ed.) 124; Pin mitted under 21 years of age, or that men grey's Extraordinary Contracts, $ 509; only or women only shall be admitted, or Wandell's Law of the Theater, 221; God that a woman cannot enter unless she is acdard's Bailments & Carriers, $ 333.

companied by a male escort, and the like. The main question presented for decision The proprietors, in the control of their busiis whether the defendants had the right to ness, may regulate the terms of admission make a contract with purchasers upon the in any reasonable way. If those terms are condition printed in the ticket. There is no not satisfactory, no one is obliged to buy restraint by statute against such a condition, a ticket or make the contract. If the terms and it is not opposed to public policy. There are satisfactory, and the contract is made, is no tendency toward monopoly, for any the minds of the parties meet upon the conone can buy and sell theater tickets, provided dition, and the purchaser impliedly promises the sales are not made on the sidewalk, where to perform it. There is no rule of law that the tickets themselves provide they cannot prevents the enforcement of the contract in be sold. The law does not prevent the pro the manner provided thereby, which is to prietor of a theater from making reasonable refuse admission to the holder of a ticket regulations for the conduct of his business, who bought it on the sidewalk. Where the and imposing such reasonable conditions up condition is part of the contract at its origin, on the purchasers of tickets as in his judg it continues a part thereof as long as it exment will best serve the interests of that ists, and binds all subsequent holders with business. A ticket speculator is one who notice. sells at an advance over the price charged by The case would be very different if, after the management. Speculation of this kind the sale of a ticket containing no evidence frequently leads to abuse, especially when of the restriction, an attempt were made to the theater is full and but few tickets are enforce it against a purchaser without noleft, so that extortionate prices may be ex tice. The purchaser is warned in advance acted. A regulation of the proprietor, which of what he is buying. He has notice before tends to protect his patrons from extortionate he buys of the condition which the propriprices, is reasonable, and he has the right to etors saw fit to make a part of the contract. make it a part of the contract and a condi He acts with his eyes open, and if he does tion of the sale. Unless he can control the not like the condition he need not buy; but, matter by contract and by conditions appear if he buys, he impliedly assents to the coning upon the face of the ticket, which is evi- | dition, which controls, not only himself, but dence of the contract, he may not be able any purchaser from him. When the plainto control it at all, but must leave his pa tiff came lawfully into the possession of the trons to the mercy of speculators, such as tickets in question, with others, as he alleges, the plaintiff, who, as he alleges, was ac he had notice of the condition which appeared customed to make at least $4,000 a year from upon the face thereof, and was bound therehis business. That amount, of course, came by. He bought subject to that condition, and out of patrons of the theater; and if other every right he acquired was subordinate thereto. The ticket was assignable ; for there 1 provides for the equal accommodation of all was no restriction in the contract against persons in “places of public accommodation selling it, except in a particular place, and or amusement, subject only to the conditions a transfer could be made by simple delivery. and limitations established by law and apThe plaintiff, therefore, took it with the right plicable alike to all citizens." It makes it a to sell to any person at any time and in any misdemeanor to deny "to any citizen, except place that he saw fit, provided he did not for reasons applicable alike to all citizens of violate the condition, which imposed no un every race, creed, or color, and regardless reasonable restraint upon the assignability of race, creed, and color, the full enjoyment of property. When he tried to sell on the of any of the accommodations, advantages, fasidewalk, he clearly acted in defiance of the cilities, or privileges" enumerated in the stat. contract, and violated the condition to which ute, including theaters by specific mention. he had given an implied assent. With notice This has no bearing upon the resale of tickets that, if he sold the ticket on the sidewalk, in violation of a contract made with the it would be refused at the door, he was at original purchaser. It was especially designtempting to sell on the sidewalk, when the ed to prevent the exclusion from "places of defendants, by their signs and agents, warned public accommodation or amusement" of any intending purchasers that the condition wouid one on account of race, creed, or color, and be enforced, and that the holder of a ticket apparently was also intended to prevent any purchased from him under such circumstan discrimination founded on rank, grade, class, ces would be denied admission. The defend. or occupation. The contract and tickets in ants did nothing but notify people, so that question did not discriminate against any they could not be imposed upon by him and person on account of any reason named in induced to purchase tickets which would the statute, for the same condition is imposed be of no use, because sold in violation of the upon all, and all are treated alike. The contract.

holder is not excluded because he bought of This is not a case involving the liberty the plaintiff, but because he bought in the of the plaintiff to sell his property; for he probibited place. The plaintiff was not excould sell it to any person and in any place, cluded, for he could have used the tickets except in the one prohibited by the contract himself. No class of persons was excluded, which constituted the property. The contract such as lawyers, doctors, merchants, or did not interfere with his absolute freedom | mechanics, but simply those who bought in of action, except to this limited extent, duly violation of the terms of the contract after agreed upon in advance; while he attempts notice thereof. to interfere with freedom of contract on the We think that the contract with the origipart of the defendants by restraining them nal purchaser of the tickets was valid, that from enforcing an agreement which they had the express condition named therein bound made and to which he had assented. Re all subsequent purchasers, and that it could straint by statute and restraint by contract | be enforced in the manner provided thereby. are quite different. What the parties to a The judgment should therefore be affirmed, contract agree upon is valid almost without with costs. limitation, but what the Legislature may probibit parties from agreeing upon is sub CULLEN, C. J., and GRAY, O'BRIEN, ject to the limitations of the fundamental | BARTLETT, HAIGHT, and WERNER, JJ., law. Those limitations do not bear upon the concur. case now before us. Our recent decision in People ex rel. Tyroler v. Warden, etc., 157 N. Judgment affirmed. 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 uncon

(183 N. Y. 258) stitutional a statute which prohibited as a

JONES V. BRINSMADE. crime the selling of transportation tickets by (Court of Appeals of New York. Dec. 5, 1905.) any person except common carriers and their MARRIAGE – SUIT TO ANNUL - ALIMONY specially authorized agents, in so far as it ATTORNEY'S FEES. undertook to probibit citizens of the state

Where a wife sues to annul a marriage on

the ground that her husband was insane when from engaging in the business of brokerage

the marriage was contracted, the Supreme Court in passenger tickets. This case involves, has no power to award her counsel fees and not a statute, but a contract, which excludes alimony pendente lite, as she by such action

is electing to rescind the marriage contract, and no one from carrying on the business of sell

therefore cannot insist that she is entitled to ing theater tickets, but simply prevents a

the rights of a wife under a valid marriage until sale thereof on the sidewalk in violation of the decree is rendered. the express stipulation of the tickets them

[Ed. Note. For cases in point, see vol. 34, selves.

Cent. Dig. Marriage, § 137.) The statute entitled "An act to protect all Appeal from Supreme Court, Appellate Dicitizens in their civil and legal rights” has no vision, First Department. application. Laws 1895, p. 974, c. 1042; Action by Jessie M. Jones, otherwise People v. King, 110 N. Y. 418, 18 N. E. 245, known as Jessie M. Bringmade, against 1 L. R. A, 293, 6 Am. St. Rep. 389. That act Charles L. Brinsmade. From an order of the Appellate Division (93 N. Y. Supp. 674, 1 effect (Bloodgood v. Bloodgood, 50 How. 104 App. Div. 619), affirming an order of Prac. 42; Isaacson v. Isaacson, 3 N. Y. the Special Term granting an application Law Bul. 73; In re Michaelson, 25 N. Y. for counsel fees and alimony in an action Daily Register; Meo v. Meo, 22 Abb. N. C. to annul a marriage, defendant appeals. 58, 2 N. Y. Supp. 569; Herron v. Herron, Reversed.

28 Misc. Rep. 323, 59 N. Y. Supp. 861). In James C. Bergen, for appellant. William

Griffin v. Griffin, supra, the question was

as to the power of the court to award aliM. Wherry, Jr., and W. Osgood Morgan,

mony and counsel fee in an action brought for respondent.

against the wife to annul the marriage;

but Judge Rapallo, speaking for this court, CULLEN, C. J. The question presented

recognizes the rule to be as I have stated, by this appeal and certified by the court

saying: “It is also very properly restricted below is: “In an action brought by a wife

to cases where the wife admits the existence against her husband to annul their marriage

of a valid marriage and seeks a divorce on the ground that the husband was insane

or separation for subsequent misconduct of at the time the marriage was contracted,

the husband. Where she denies the exhas the Supreme Court jurisdiction and

istence of the marriage, she cannot conpower to grant an application made by the

sistently claim that the defendant is under plaintiff—the wife that the defendant

any obligation to provide her with means the husband—be compelled to pay her ali

to carry on her suit against him." In mony pendente lite and counsel fee, and

Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. to make an order directing such payments

Rep. 460, though like the last case in that to be made by defendant?” While neither

the point was not involved, Judge Folger the Revised Statutes nor the present Code

makes a similar statement: "In an action authorize in express terms the court to award

by the wife for divorce or by the husband alimony and counsel fee in an action to

for a decree that the marriage is null, in annul a marriage, it has been the settled

which the putative wife avers the existence law under both systems of statutory pro

and legality of the marriage, though the cedure that the court has such power where

alleged husband denies it, the court may, the action is brought against the wife. in its discretion, allow to the putative wife North V. North, 1 Barb. Ch. 241, 43 Am.

temporary alimony and money to carry on Dec. 778; Griffin v. Griffin, 47 N. Y. 134;

the action from the means of the alleged Higgins v. Sharp, 164 N. Y. 4, 58 N. E. 9.

husband." In Higgins y. Sbarp, supra, the The learned counsel for the appellant con

question was the same as in the Griffin cedes this proposition, but contends that

Case, and there is nothing to be found in under the equally well-settled rule prevail.

the opinion rendered by Judge O'Brien ining in this state alimony and counsel fee

timating that alimony should be allowed a will not be granted the wife when she wife seeking to establish the invalidity of seeks to annul the marriage on account her marriage. of its original invalidity. No express statu Counsel for the respondent cites three cases tory authority being given, the power of as sustaining a contrary rule. Allen v. Allen, the court to make such an allowance is 59 How. Prac. 27, was a suit by the wife to sustained as incidental to the statutory annul a marriage for the impotency of the jurisdiction to entertain an action to annul a husband. Alimony and counsel fee were marriage. See cases cited above. There awarded. The case was decided at Special fore, especially in an action of this char Term, without opinion and without the cita. acter, more than in an action for divorce, tion of authority for its support. Anonymous, is the rule stated by Judge Rapallo, in Col. 15 Abb. Prac. (N. S.) 307, is not in point. lins V. Collins, 71 N. Y. 269, applicable : There the husband obtained by default a de“Where the facts are such that, on general cree against his wife annulling the marriage, principles of equity, a plaintiff is not en and again married. The first wife had the titled to demand alimony, the question be decree opened and was allowed to defend. comes one of law, reviewable in this court." Thereafter the second wife was permitted to Though the exact point has not been de intervene in the action, apparently on a termined by this court, the doctrine seems suspicion that the opening of the decree was to have been well established in the old an artifice by the husband to get rid of her. court of chancery that where a wife files The court allowed the intervening wife couna bill against her reputed husband to an sel fee. The situation in that case was the nul a marriage, upon any cause which goes exact reverse of this. Counsel fees were alto the legality of the marriage originally, lowed to a woman who sought to sustain the the allegations in her bill will be taken validity of her marriage, not to avoid it. as true against herself, and an allowance Finally we have Gore v. Gore, 103 App. Div. to her to maintain the suit will be denied 74, 92 X. Y. Supp. 634. There alimony and (North y. North, supra; Bartlett v. Bart- counsel fee were awarded a wife seeking to lett, Clark's Ch. 322); and since the abolition apnul å marriage for the impotency of her of the court of chancery the great weight of husband. The learned court was of opin. authority in the Supreme Court is to the same ion that, the marriage being void under the

statute (section 4, art. 1, Domestic Relations | The orders of the Appellate Division and Law) from the time its nullity was declared the Special Term should be reversed, and the by a court of competent jurisdiction, until motion denied, but without costs in any court. that time the plaintiff possessed the same rights and was entitled to the same favor as GRAY, J. I agree with the Chief Judge a wife by a marriage concededly valid in an that this appeal should be sustained. In the action brought against her husband for his absence of any provision of our statutes subsequent misconduct. In support of this which authorizes an award of alimony and position the respondent cites the section of of counsel fee, when the action is brought to the domestic relations law referred to. But annul the marriage between the parties, and a comparison of that section with 2 Rev. St. conceding to the court the authority to make p. 138, part 2, c. 8, tit. 1, § 4, will show that such, as being incidental to its jurisdiction the later statute, so far as it relates to the to entertain the action, it seems to me very question before us, is but a re-enactment of clear that the power cannot, with any legal the earlier statute, the words not being chan propriety, be exercised in such a case as this. ged, but being transposed in the order in I am for asserting the rule that where the which they are found. There is, therefore, wife, as here, declares her marriage to have no change in legislation which justifies any been null, and for that cause seeks to have change in the rule that has hitherto obtained. the marriage contract adjudged to have been

Conceding that the marriage of a lunatic void, she has no more an equitable ground is voidable, not void, and that it becomes void than she has a legal reason for demandin; only upon a decree annulling the marriage; that the defendant's estate be charged with does it follow that, while electing to have her her support. When she is in the position of marriage declared void, a plaintiff can insist asserting the validity of her marriage, and is that she is entitled to all the rights of a wife defending its validity, she may consistently under a valid marriage until the time the de- invoke the power of the court to compel a cree is rendered? I think the learned court provision for her maintenance and defense in the Gore Case failed to appreciate that the until the action has determined the relations status of the parties established by the de- of the parties; and, while I did not take part cree of nullity necessarily relates back to the in the decision of Higgins v. Sharp, I recog. time of the contract of marriage. This is nize it as authority upon this proposition, and the rule applicable to other contracts sought | no further. to be rescinded for fraud or other infirmities. He who elects to rescind a contract can I O'BRIEN, BARTLETT, HAIGHT, VANN, claim nothing under it. As to the effect of a and WERNER, JJ., concur. decree of nullity it is said by Mr. Bishop (1 Marriage and Divorce, & 118): "The doc Ordered accordingly. trine may have a limit under the operation of the statute, but it appears to be universal under the unwritten law that, when a void

(183 N. Y. 264) able marriage has been set aside by a decree PEOPLE ex'' rel. FARCY & OPPENHEIM of nullity, the parties are regarded as having CO. V. WELLS et al., Tax Com'rs. . never been married. For example, the chil (Court of Appeals of New York. Dec. 5, 1905.) dren, before legitimate, become by force of the TAXATION - FOREIGN CORPORATIONS-DOING decree illegitimate, and the late husband is BUSINESS IN THE STATE. treated with having never acquired any right

• Where a foreign corporation is continu

ously engaged within the state in the importato the property of the wife, though the claims

tion and sale of foreign goods and has an office of third persons are to some extent respect in the city of New York, where the proceeds ed." The same is true of the property rights of the sales of such goods are received and deof the wife. This rule, so far as it affects

posited in a bank and all the expenses of the

business in the country are defrayed out of the the issue of the marriage, has to some extent

bank account, the surplus 'only being remitted been modified by our statute. The child of a to the home office in France, it is doing business marriage annulled on the ground of the lu in the state and liable to taxation, under Laws nacy of one of its parents is regarded as the

1896, p. 800, c. 908, 8 7.

[Ed. Note.-For cases in point, see vol. 45, legitimate child of the parent who was of

Cent. Dig. Taxation, § 286.] sound mind. Code Civ. Proc. $ 1759. Such being the effect of a decree annulling a Appeal from Supreme Court, Appellate Dimarriage, even though the marriage is only | vision, First Department.. voidable, it seems both unjust and inconsist Action by the people, on the relation of the ent that a wife should be allowed alimony Farcy & Oppenheim Company, against James and counsel fee out of her husband's estate L. Wells and others, as commissioners of to establish the invalidity of her marriage, on taxes and assessments of the city of New the theory that by virtue of the marriage rela York. From an order of the Appellate Di. tion the husband is bound to provide for her, vision (93 N. Y. Supp. 1143, 104 App. Div. when if she is successful in that suit her 629), affirming an order of the Special Term status will be the same as if she had never | (87 N. Y. Supp. 84) reducing an assessment married him.

I for the purpose of taxation against the capi.

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