The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-07-08
PUBLISHERS DEAL UNLAWFUL
APPELLATE DIVISION RULES FOR
". III. MACY &c co.
Bookmakers May Not Restrain the Re-
tailers From Selling tho Manuract-
nred Article at a Price which They
See Fit-COurt Divided, q to a.

A decision. dealing with combinations
In restraint OF trade, was rendered yester-
day by the Appellate Division Of the SUI
preme Court in connection with the suit
brought by X. II. Macy Il Co. against the
American Publishers Association. The
court declares that the association 10 act
ing under an agreement which ia against
public policy and il illegal and void.
r. II. Macy h Co., are seeking an injunc-
ton to restrain the Publishers Associa-
ton from carrying on combination by
which the members OF the association,
who comprise 95 per cent. OF the book pub
fishers in the United States and Canada,
agreed among themselves not to sell any
Of their publications to any bookseller who
was not affiliated with them and who did
not bind himself to retail the books at a
fixed net price.
r. r. Macy 4 Co. refused to be parties
to any such agreement, and they alleged
that in consequence the association had
blacklisted them and had forbidden it's
members. to sell books to them. The Arm
asked for damages in addition to the in
junction.
Tho association demurred to the COM
plant on the ground that it did not state
sufficient facts to form cause Of action,
and the demurrer was sustained in Special
Term. The plaintiffs appealed and have
succeeded in getting reversal. John G.
Carlisle argued the appeal for the plain
lifts and Stephen II. DIN appeared as
counsel for the defendants.
Justice Ingraham writes the prevailing
opinion. reversing the Special Term. JUS
tices Patterson and Laughlin concur, while
Justices Mclaughlin and Van Brunt dis
sent
Justice Ingraham in his prevailing
opinion cites at length the statutes Of this
State governing agreements in restraint
of trade Chapter 800 of the Laws of 1891.
The opinion then reads:
This statute does not attempt to prevent
the manufacturer of any article from fixing
any price at which he would sell the article
manufactured by him. But when an article
thus manufactured has passed out ofthe hands
Of the manufacturer and has come into the
ownership of dealers engaged In general bust
ness a combination between all manufaCt-
!rers that any dealer who presumed TO sell
the articles thus manufactured at a price
below that al which the manufacturers had
fixed as the retail price should thereafter
no cut OH IIOiH OIpoIlutSS W
articles of similar character IL. it seems
10 me. a combination which would tend to
restrain the free sale OF the article thus manu-
featured and sold and would restrain or
prevent competition in the price OF the article.
What is declared TO be Illegal is any con-
tract, agreement. arrangement or combina-
ton whereby competition in the supply or
price OF any article or commodity OF common
uae may be restrained or prevented
II il the competition In the supply or price
which is to be preserved. and any contract
Nk.,t. ftgNYN ttnn for
It's object a restraint upon or interference
with such competition. either In regard to
the supply or the price. is declared illegal.
Justice InRraham then discusses the COM
plant and it's allegations at length. recit-
ing the terms Of the agreement, which the
complaint charaCteriZes as IAN unlawful
conspiracy to maintain prices and prevent
competition, and to prevent the plaintiffs
from purchasing any books and selling them
at such prices az to them seems desirable
The opinion continues:
Upon these allegations, what ia the object
fishers and sellers OF books? Was not the
nature and object of the combination to COM
pei every dealer in books TO fix the selling
price Of each book owned by him at the price
designated by the publishers OF the books?
II that was the nature and object OF the ar
or IN pree n of baoEs
i. or may be. restrained or prevented? |
can conceive Of but one answer to that aues-
.tDN
What competition in the price at which books
are sold or retailed can exist if these de-
PENDANTS, constituting as they do, 95 per cent.
ot the publishers Of hooks In the nited States
and Canada, can carry out the object and in
tent Of this combination; For no BOOKSELLER
who sells book ut less price than that
fixed by the publishers can obtain book TO
sell II this agreement could he carried out
all competition in the sale OF books would nee
csSarily be at an end.
10 is said, however. that as this arrange
mcut related TO copyrighted books which each
publisher has sole right TO publish and
their monopoly given by the Copyright law.
and is not, therefore, a violation of the
statute but | do not understand that the
in The book when once II is published and
sold II is true that he has right to sell as
many copies as he peasses; put 1t 50 ne has the
the same conditions. The monopoly that
the copyright gives is that no one else shall
print or publish the, book upon which the
Usher can enforce that right But when a
publisher OF Copyrighted book once sells
right TO prevent its being sold by the person
10 whom he sells il, or to interfere IN any
TIT the Sps bes gh sod BY
1t is not seriously disputed that books are
an article or commodity OF common use, and
n further discussion of this question is quite
Unnecessary, We have the plain terms OF |
the statute We have combination eS-
pT"S~lN OTkHnlItu lot ouJ'', NHi'h ''iO
statute declares against pubic pohcy.
Illegal and void We have the fact that such
combination or arrangement has been and Ia
being applied to prevent the plaintiffs from
continuing their business, and has caused
them large damage for which thev have no
adequate remedy at law and IL seems TO foi-
low that such a condition being admitted.
the plaintiffs are entitled TO some relief. In
my view of the case the complaint stated
ca,ise Of action and the demurrer was i'm
properly sustained.
The Judgment should. therefore, be re-
versed with costs, and the demurrers over
ruled with costs with leave 10 the defendants
to withdraw demurrers and to answer. upon
payment of costs in this court and in the court
holpr.
Justice Mclaughlin in his dissenting
Uplnlon refers to the case Of Park w. the
National Druggists Association, in which
the court refused an injunction to restrain
III" defendant associa ion from granting
rebate only when the jobber agreed to main
tain fixed rate OF prices. Justice McLaugh-
lin says this case governs the case at par
In a enthusiastically short and caustic
opinion. concurring with Justice McLaugh-
lin Presiding Justice Van Brunt says:
| concur. ] do not see why a seller Of
property in respect 10 which he hasa monopoly
irnnoap any conditions to it's