The sun., 1913-12-07
HAMMERSTEIN LOSES:
OPERA Is NOT A TRUST
sherman Law. Rules Justice,
Not Violated by Metro
politan Company.
OSCAR SAYS HE'LL GO on
New Opera House. lie Asserts,
Will Open in January
as Planned.
OSCAR SAYS HE'LL GO on

supreme Court Justice Pcndieton de-
ci,lpd yesterday that the business of rro-
ducing grand opera is not commerce and
accordingly sustained a demurrer by the
Mctropolitar opera Company to Oscar
Hammerstein's answer to the suit TO en-
1oin him from producing opera in English
here in which Hammeretein contended
that the Metropolitan is a combination in
restraint of trade In violation OF the Sher-
man antitrust lew.
While Justice Pendleton permits Ham
merstcn and his son Arthur, vino was
Joined rs a defendant. to amend their
answers within twenty days upon pay
mcut OF all the costs II is conceded that
all the chief detcnces available to the
Hunnlerstelns were iutcrrosed before JUS
tiCc Iendietor.
The defendants will appeal at once to
thr Arp' 'late Division, and IT Is probabc
that tn, case will also go to the Court
of Appeals which will delay "A final de-
csion for some months In the meantime
the Hanlmerstein operate enterprise will
b' AZ a standstill
In an opinion of twenty-three type-
written pages Justice Pendleton reviews
tnc. history of the litigation in which the
Metropolitan sought to compel the Ham
n-rsteins to obey the terms of con-
udCt uHdeT Wnlch OSCAR Hafnmeretein
-o.d ont his opera business In Phladel-
rhia and N.w York to the Metropolitan
interests and agreed not to introduce
opera in those cities for ten years.
Justice pond;eton said 1t Is well set
Tied that the courts will enforce re-
s,rictive covenants given incident to the
hale of property or good will and the COM
piaint OF the Metropolitan company suffi-
cienty sets forth the contract and the de-
PENDANTS agreement which Is sought to be
enforced.
Not Under Sherman Law.
As 70 the chief defence that the con-
tract In in violation of the Sherman anti
rust Jaw, the court says that to have
the case fan under this act IL must be
proved that the agreement In question
10 in its direct effect a restraint of trade
and commerce.
rs the business OF producing grand
opeta. in its essential characteristics.
trade or commerce. says Justice Pende-
ton
II the production of opera is trade
or commerce it would seem to follow that
every museum which exhibits pictures.
every university which gives courses of in
struction or LECTURES every lawyer who
prepares brief every surgeon who per
forms an operation, every circus. moving
picture show, exhibiting puslist. actor
or performer is engaged in commerce"
Holds COntrRct L. Good.
The defendants also raised the conten-
ton that the Metropolitan was without
power To make til" contract In question,
and on This point Justice Pendleton said /.
'If the purchase Of defendants busi-
ness and good will was within its cor
porate powers certainly the covenants
necessary for. and incident TO. the pro-
lection and securing to II OF such good
will were equally within its corporate
rights
rs to Arthur Hammerstein's defence,
that he is not bound by the contract be-
cause he was employee OF his father
at the time. the court says that II "a
contract by an employee with his en-
ployer not TO enter into the same bus-
ness or compete is not illegally in re-
straint OF trade the employer. In order to
sell his business and good will protected
by such covenant, must have the right
to transfer such an agreement with the
employee.
The court says that the allegations of
the answer are largely allegations Of con-
clusions rather than facts" and holds
that the plaintiff is entitled to Judgment,