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SEARS, J. The plaintiff has moved for an injunction pendente lite. He is the proprietor of a daily evening newspaper known as the Buffalo Commercial, and the defendants are the proprietors and managers of all the other daily newspapers in the city of Buffalo published in the English language. The plaintiff's action is for injunctive relief, and is based upon the theory that the defendants, together and with others, have conspired together to injure the business of the plaintiff as publisher of the Buffalo Commercial.

The acts sought to be enjoined may be summarized as follows: (1) Refusing to sell the defendants' newspapers to persons who may also deal in and handle plaintiff's newspaper, and inducing newsboys or newsmen to refuse to handle or deal in plaintiff's newspaper. (2) Refusing to deliver "mats" or "matrices" of advertisements to plaintiffs, when requested so to do by the advertiser, for the preparation or publication of whose advertisement such "mat" or "matrix" has been made.

(3) Continuing the practice of employing men to reset "mats" or "matrices," and entering into an agreement with any labor union, corporation, association, or person to provide for employés to be engaged in such resetting of "mats."

(4) Entering into any agreement with any labor union, corporation, association, or person providing that defendants shall employ only union men or discharge any employés not belonging to such union or association.

(5) Combining and conspiring to create or maintain a combination or monoply in the production or sale of newspapers, advertising therein, "mats" or "matrices," or whereby competition in this state in the supply or price of any such article or commodity, or any article or commodity in common use, is or may be restrained or prevented, or whereby, or as a result of which, the free pursuit by plaintiff of his lawful business of publishing, circulating, and selling the Buffalo Commercial may be restricted or prevented, or whereby the plaintiff may be prevented from exercising his lawful calling, or to commit any act injurious to trade or commerce, or whereby it is intended to accomplish any of the acts or things mentioned in the above subdivisions.

[1] Before a temporary injunction can be granted the court must be satisfied that the plaintiff has shown in the motion papers at least a prima facie case, first, that a combination exists; second, that it tends to create a monopoly in an article or commodity of common use, or is intended to injure the plaintiff in his business; third, that the acts complained of will cause the plaintiff injury.

[2] The defendants earnestly contend that the case fails to establish any one of the three elements mentioned above. The plaintiff's affidavits fail to establish direct proof of any contract or agreement which would constitute necessarily a combination or conspiracy. But these facts are shown: For a long time there has been an association known as the "Buffalo Publishers' Association"; that previous to January 12, 1920, there were meetings of this association, at which the price of newspapers was discussed; that previously to

(182 N.Y.S.)

that time the price of all daily newspapers in the city of Buffalo, except the price of the Buffalo Commercial, was simultaneously increased to two cents; that employés of some of the defendants have stated to newsdealers that such newsdealers would not be supplied with any of the defendants' papers if they handled or continued to handle the Buffalo Commercial. Such facts establish a prima facie case of a combination or conspiracy.

[3] Such a conspiracy may be established circumstantially. The Appellate Division of the Fourth Department in Heughes v. Board of Education, 37 App. Div. 180, 55 N. Y. Supp. 799, said:

"Direct and positive proof of such an offense is, from the nature of things, seldom attainable, and for this reason resort is frequently had in both civil and criminal actions to circumstantial evidence; that is, to evidence of disconnected acts on the part of the individual conspirators which, when taken in connection with each other, tend to show a combination to secure a par ticular result; and this character of evidence is often quite as satisfactory and conclusive as more direct proof. People v. Flack, 125 N. Y. 324; People V. Van Tassel, 156 N. Y. 561."

[4] The defendants upon the argument conceded that it would be unlawful for the defendants to combine to prevent newsdealers or newsboys from selling the Buffalo Commercial by offering them money considerations. It would be equally unlawful to accomplish the same purpose by threatening to refuse to sell the defendants' newspapers to newsdealers handling the Commercial. Sultan v. Star Co., 106 Misc. Rep. 55, 174 N. Y. Supp. 52; Straus v. American Publishers' Association, 85 App. Div. 449, 83 N. Y. Supp. 271; Id., 177 N. Y. 477, 69 N. E. 1107, 64 L. R. A. 701, 101 Am. St. Rep. 819.

[5] The defendants deny these coercive acts, and produce affidavits of their employés, who are charged with the commission of such acts, to substantiate their denials. On this preliminary motion this question of fact is not necessarily resolved. It is sufficient in the discretion of the court to prevent irreparable injury to grant relief upon the prima facie case. Especially should that be so, as here, where the acts are denied, and no harm will therefore result to the defendants in their being enjoined. An injunction pendente lite will therefore be ordered, restraining the defendants from the commission of the acts specified in subdivision 1 of the acts complained of, above mentioned, viz.: Refusing to sell the defendants' newspapers to persons who may also deal in and handle plaintiff's newspaper, and inducing newsboys or newsmen to refuse to handle or deal in plaintiff's newspaper.

[6] As to the other acts complained of, a different situation exists. For example, the defendants are charged with refusing to supply "mats" or "matrices" to advertisers, if such advertisers in turn are to furnish such "mats" or "matrices" for the use of the Buffalo Commercial. These "mats" or "matrices" are made as follows: An advertiser sends to the newspaper a copy of a display advertisement. The newspaper to which the copy is sent causes the copy to be set by the use of movable type. An impression of this movable type is made upon a wet paper mass, which is pressed into the type and

182 N.Y.S.-13

takes the exact impression thereof. This paper mass constitutes the "mat," or "matrix," and more than one impression can easily be taken. The "mat" is thoroughly dried in a cylindrical form, and molten metal poured upon the same, which, although cylindrical in form, takes the exact impression of the type in a solid mass in such a condition as to be usable upon a cylindrical press. Such "mat" or "matrix" is therefore an intermediate process in the production of the newspaper between the setting of the type and the final casting of the cylinder which is put into the press. Mats are not sold, but newspapers do as a courtesy frequently make extra mats and deliver them to other newspapers.

The mat is not a commodity of common use, within the meaning of the Donnelly Act (section 340 of the General Business Law of the state of New York [Consol. Laws, c. 20]). People v. Epstean, 102 Misc. Rep. 476, 170 N. Y. Supp. 68. It would doubtless be convenient and advantageous to the Commercial to receive from the defendants such "mats," but the plaintiff has established no legal right to do so. The courtesies of the past do not establish such rights. The "mats" do not belong to the advertisers, and, even if they did, it would be the advertiser who would have to complain, and not the plaintiff. There is no more reason why the defendant should make additional mats to be supplied to the Commercial than that the plaintiff should be furnished with copies of the defendants' news articles for republication in the plaintiff's newspaper. No act tending to injure the plaintiff in a legal sense is established in this respect.

Similarly in regard to the relief sought in respect to the use of printers in resetting advertisements, and in respect to the relief sought regarding the entrance into contracts with labor unions for the employment exclusively of members of such labor unions, there is a failure to establish either the creation of a monopoly, or an intent to injure the plaintiff, or an actual injury to the plaintiff.

It would be irrelevant to discuss the arguments relating to trade unions' limitation of work or the "closed shop." So far as this motion is concerned, these subjects may be considered as social and economic. They may in a proper case become legal. The argument that the defendants are employing men in useless work, and therefore restricting the labor market, to the injury of the plaintiff, does not convince me that there is a direct injury to the plaintiff.

In Auburn Draying Co. v. Wardell, 227 N. Y. 1, 124 N. E. 97, a secondary boycott was involved, the injunction being

"to prohibit the enforcement of resolutions, rules, or orders of the defendant unions requiring their members to quit the service of employers who patronize the plaintiff, and the giving of notices by or on behalf of said organizations or the officers thereof to such employers, or the public, of an intention to quit, provided such employers continued to patronize the plaintiff, and any other attempt or effort to use the powers or authority of the defendant unions over their own members, for the purpose of inducing or compelling patrons of the plaintiff, or the public generally, against their will, to refrain from dealing with the plaintiff.”

In Straus v. American Publishers' Association, 177 N. Y. 473, 69 N. E. 1107, 64 L. R. A. 701, 101 Am. St. Rep. 819, the plaintiffs were

(182 N.Y.S.)

the proprietors of a department store dealing in books complaining of an association which had entered into an agreement not to sell books to any bookseller who should not maintain a certain net retail price. In Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, the plaintiff was an engineer, who complained of the action of a trade union which secured his discharge because he was not a member of the union.

In McCord v. Thompson-Sterrett Co., 129 App. Div. 130, 113 N. Y. Supp. 385, affirmed 198 N. Y. 587, 92 N. E. 1090; the question arose among the members of an employers' association as to the legality of a requirement of the association that all its members should employ or continue to retain in employment only members of a particular union. The case is therefore an authority holding that such an order by an employers' association is illegal; but it does not establish the right of the plaintiff to base an action upon a theory of such remote and consequential damages as the plaintiff alleges here. These are typical cases and none is controlling.

The prayer for a general injunction, without specifying particular acts, cannot be granted. It would be as futile as an injunction against general disobedience of the law.

The motion for a temporary injunction is therefore granted only as above stated, and in all other respects is denied.

(192 App. Div. 421)

TREADWELL v. CITY OF YONKERS.

(Supreme Court, Appellate Division, Second Department. June 11, 1920.) 1. Municipal corporations 768 (2)-City not liable to pedestrian for fault in plan of constructing flagstone covering.

Unless a pedestrian, injured by the breaking of a flagstone covering a gutter basin, established that the plan for the work as made and executed was not adopted or approved by the city authorities, the city was protected from attack on the plan as improper.

2. Appeal and error 232 (2)—Objection to testimony on untenable ground effective, if evidence not competent.

In injured pedestrian's action against city, untenable objection to testimony as to the improper plan of the gutter basin covering, which caused the injury, though made on the ground that the specific question addressed to the expert was one of fact for the jury, was effective, if the evidence was in no aspect of the case competent, or could not be made so.

3. Appeal and error 888 (2)—Pleading 237 (8)—Testimony for injured pedestrian, not within pleading, could not be made competent by amendment or on appeal.

In injured pedestrian's action against city, testimony as to the improper plan of the gutter basin covering, which broke and caused the injury, not within plaintiff's pleading, which complained only for negligence in the maintenance of the covering, could not be made competent, either by amendment at trial or on argument of appeal.

4. Municipal corporations 788 (1) -City not insurer of safety of pedestrian. If a flagstone used by defendant city as covering for a gutter basin was within the category of a city street or way, the city was not an insurer of the safety of a pedestrian using it to cross the basin; notice to the city of the stone's liability to give way, or its legal equivalent, being essential to the pedestrian's case.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. Municipal corporations 791 (1) -Actual notice of instability of flagstone covering gutter basin in street not essential to charge city.

A city, which maintained a flagstone as covering for a gutter basin, such stone constituting a city street or way, was bound to exercise a reasonable degree of watchfulness to detect any instability in the stone, and actual notice was not essential to charge it with liability to an injured pedestrian.

6. Municipal corporations 791 (4)—City not liable to pedestrian, injured by flagstone, on theory of notice of resistability.

A city, which maintained a flagstone covering a gutter basin, was not liable to a pedestrian, injured when the stone broke, on any theory that the city was charged with notice of the instability of the stone, because the proof showed that it bore the marks of the metal tires of wheels, indicating that its molecular cohesion was less than that of such tires, which did not show the stone was insufficient to carry a pedestrian's weight. 7. Municipal corporations 791 (2)—City not liable for injuries from broken flagstone, in absence of notice.

If the flagstone, covering a gutter basin, which broke under a pedestrian's weight, to his injury, was broken, cracked, or impaired by some force in the period intervening between 5:35 p. m. of one day and 8 a. m. of the next day, when the accident occurred, the city could not, in the absence of actual notice of the defect, be liable as for negligence.

Appeal from Trial Term, Westchester County.

Action by Leman B. Treadwell against the City of Yonkers. From a judgment for plaintiff, and an order denying its motion for new trial, defendant appeals. Judgment and order reversed, and new trial granted.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

William A. Walsh, Corp. Counsel, of Yonkers, for appellant.
Humphrey J. Lynch, of White Plains, for respondent.

JENKS, P. J. It appears that the trend of the unsewered street justified the construction of a basin in the gutter. The basin was covered by a flagstone, of which one end rested upon the top of the curb and the other end was set in the roadway level with the crown of the street. Pedestrians frequently made use of the flagstone as a bridge over the gutter from sidewalk to roadway. The plaintiff did so daily. It was not, however, a crosswalk. Between 7 and 8 a. m. of a clear July day, the flagstone broke beneath plaintiff's footfall. He has recovered substantial damages for a personal injury that followed his fall.

[1] He complained only for negligence in the maintenance of this flagstone. But, without even attempt to amend his pleading, and despite objection and exception, the plaintiff attacked the plan of this apparatus. Thus he attacked a quasi judicial or discretionary power of the defendant, in an action wherein the complaint was limited to attack upon the ministerial power of the defendant in maintenance of the improvement. Urquhart v. City of Ogdensburg, 91 N. Y. 67, 43 Am. Rep. 91; Pitman v. City of New York, 141 App. Div. 670, 125 N. Y. Supp. 941; and cases cited; Paine v. Village of Delhi, 116 N. Y. 224, 22 N. E. 405, 5 L. R. A. 797. Although the court, after sub

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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