Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-05-10
RESCRIPTS.
Decree Of Single Justice
Is Affirmed
In Keith & Proctor 9Th Ave-
nue. Theatre Case.
Motion to Sci Aside Verdict Over.
ruled in Damage Action.

4 sescfipt was handed down. Thursday.
from the law court Ia the Cumberland
county case Of Frederick f. Proctor and
Frederick L. Proctor, Jf., vs. Keith IL
Proctor amusement Co, BENJAMIN r.
Keith and \. Paul Keith. dismissing an
appeal from a final decree entered bv q
single 1nsiine in an equity suit, Involving
| The disposition of the 9Th Avenue theatre
IN Ne@ York. Tue decree of the single
justice that the present lease of the 5ta
Avenue theatre he assigned and delivered
! to Frederick + Proctor is affirmed Fol-
lowing Is the text of the rescript, which
vas drawn BY Chief Justice Whitehouse:
This is an appeal from final decree
1 entered BY single justice in suit ia
equity brought bV the plaiptias who
were owners OF one-half of the stock OF
the defendant company against the cor
pofatiou, and the defendants T. T. and
4. Paul Keith who were owners of the
other half Of the stock The bin asked
tfiat the affairs ct the corporation he
wound up and the corporation dissolved
The defendant corporation was organized
~ June ~ by Keith & Proctor. fer the
purpose OF combining and operating un-
or corporate ownership, for the common
benefit of the Stockholders, six theatres
IN New York aud Jersey City, four OF
which including the 9Th Avenue theatre
mad prior to that time been operated by
A'r. Proctor and two of them by Mr..
Keith.
The defendants Joined in the prayer
Tor a dissolution of the corporations; and
thereafter under date of July a. 1871
the parties entered into a stipulation
whereby il was agreed that all of tile
theatres then under the corporate man
agcment should bee restored To the party
by whom they were respectively cnnfrih-
uted, except the 5th Avenue theatre the
Teas" of which Was 10 be renewed for
five years from April }0th 1911. Thus all
fttta iUluAFf4Uf gafes.1 hts
Bill and answer were adjusted except
HAT relating 10 he disposition Of the
18th avenue tHcatree A ftrss hearing a de-
cree was effteled by "a single justice
'ithat the icasc on the 9Th Avenue theatre
which the defendant corporations now
holds and Which runs for "A term ag fiV,a
and delivered forthwith as OF tie dstte Oft
this decree, 10 tiip PLAINTIFF, tfedeii r.
ffoctef, together with all tine PERSONAL
property appurtenlst thereto, The DE-
PENDANTS took an apreal from tiss decree
an agreement Nas entered into between
Mr. Keith and Mr. Proctor under date
Of June y, 1896 TO take effect as of June
+ for the consolidation under corporate
management of the six theatres therein
.specified, for the term of 10 years. Tire
stipulatlons IN that agreement specially
involved in the consideration of the APP
peal now ilefore The court, are found IN
lie following provision:
"At the expiration of this contract by
limitation or otherwise the parties here
To shah aud wilt eas Stockholders and
directors vote and consent that the
theatres Including the personal properly.
administered to the party from whom
1Aey were respectively received by said
corporation.
The question now before the court is
whether the decree of the single Justice
that the present lease of 5th Avenue
theatre shall be assigned and delivered
to Mr.. Proctor is clearly wrong. 1t is not
in controversy that in determining that
question, this court viii be governed By
the terms of the above agreement so far
as they are applicable. either when con-
sdered by themselves or construed in the
light Of The circumstances, and if there
is nothing in the agreement controlling
the disposition Of the present 9TH Ave-
nue. lease, that the rhle of the common
law must apply and the lease be treated
as corporate asset to be disposed Of for
the benefit of all they stockholders.
Ii cannot be doubted thar by virtue of
the stipulations in this contract, the par
ties Intended TO provide in the event Of
dissolution, for the disposition of all the
theatres then under the management of
the defendant corporation, as far as
practieable
II appears that the 5th Avenne, 2srd
Street and Union Square were all in the
same class, for the reason that the lease
of each lad expired after 1866 and a new
lease given to the corporation. IL ii be
held that the parties did not intend that
the 9th Avenue theatre should be re-
transferred to Mr. Proctor on dissolution
of the corporation, the same construction
applied 10 the Union Square and. 23fd
Street theatres. would have prevented
the transfer of these theatres to Mr..
Keith and Mr.. Proctor respectively, aud
thus one-half of the theatres would have
remained undisposed of BY the contract.
The conduct and declarations of the
parties before the Institution of this suit
with reference to the other two theatres
have important Significance as TO their
understanding of the contract with re-
,spect to the 5th Avenue If Mr.. Keith
acuuesced in Mr.. Prpctor's Views that
the Union Square theatre should revert
TO Mr.. Keith ard that the. 22fd STREET.
theatre should revert to MIR. Proctor On