New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-12-07
NO HAMMERSTEIN
OPERA, SAYS COURT
Justice Pendleton Decides
Ten-Year Agreement
Binds lmpresario.
DECLARES SHERMAN
LAW INAPPLlCABLE
Sets Aside Sons Contention That
He Was Not Principal
Losers to Appeal.

The plans of Oscar Hammerstein to
re-enter the grand opera field in New
York as impresario, Notwithstanding
his agreement with the Metropolitan
Opera Company 10 refrain from any
such activity for a term of ten years.
were given a severe jolt by Justice
Pendleton. in the Supreme Court, yes
terday. The justice handed down de-
dson in the injunction proceedings
brought by the Metropolitan company
declaring Mr.. Hammerstein's defence
untenable and giving judgment to the
opera company. Mr.. Hammerstein and
his son, Arthur, also a party to the ac-
ton. have twenty days in which to
amend their pleadings.
Mr.. Hammerstein's chief defence was
that the covenant barring him from the
operate field here, in Boston and in
Philadelphia was in violation of the
Sherman antitrust law and therefore
without effect. Justice Pendleton held
that grand opera was not an act OF
interstate
the work Of an attorney or an actor.
The decision applies as well to Arthur
Hammerstein, who filed a separate
answer. in which he declared that he
was an employe when he signed the
agreement with the Metropolitan COM
pany and that he was not bound
thereby as a principal.
Justice Pendleton went on to say in
his decision that the covenant was an
integral part of the contract whereby
oscar Hammerstein sold his entire
business and goodwill for the giving of
grand opera. AS to the meaning of the
antitrust law relating to commerce,
the court said:
THE act referred to has reference
only to trade and commerce, and only
covenants and agreements which IN
their direct effect interest trade or
commerce come within its provisions.
The production of opera does not IN
volve the elements of trade or COM
merce as commonly understood. If the
proposition were to be accepted that
opera was trade or commerce IT would
seem to follow that every museum en-
gagged in exhibiting pictures, every uni
yersity giving instructions or lectures,
every lawyer who prepares BRIEF, the
surgeon who performs an operation
every artist, moving picture show, eX-
hibiting pugilist actor or performer
would be engaged in commerce.
The decision held that the cases re-
lied on by the Hammersteins were not
at all in point. When person bought
ticket for the opera, Justice Pendle-
ton said. it was not purchase of an
article in commerce. but simply pay
mept by that person TO indulge his or
her artistic tastes.
At the office Of Mr.. Hammerstein it
was said Yesterday that he would take
advantage of the twenty days given by
Justice Pendleton to file an amended
answer. and that if the case then went
against him he would take an appeal 10
the highest court of the state, and pos
siblv TO the United States Supreme
Court.
Mr.. Hammerstein said last night that
Judge Pendletons decision would have
no effect upon the season Of grand
opera at his new Lexington avenue
house. He said that the season would
be given as usual by a company called
the Hammerstein American Grand
opera Company, with which he said he
was not connected, although ne would
direct all rehearsals and be present at
all performances.
Though / shall not be directly or in
directly connected with the Hammer
stein American Grand Opera Com
pany," said the impressario with a
smile, II shall be in my old place be-
hind the scenes each night, and you
may be sure that English grand opera
will open in January as scheduled.
This was Mr.. Hammerstein's official
announcement:
The decision of Judge Pendleton
does not make a particle of difference
in the policy Of the grand opera season
in English, beginning in January next
in the new American Grand Opera
House
Il openly demanded the settlement Of
my controversy with the Metropolitan
opera Company i'm the courts, and, an
ticipating a long legal battle, trans
ferred all my contracts TO the Ham
Inerstein American opera Company, in
corporated under the laws Of the state.
Nevertheless, will be the director Of
the company, which has been con-
tracted to appear in Pittsburg, st.