
    United Cigar Stores Company of America, Plaintiff, v. Dell Publishing Company and Others, Defendants.
    Supreme Court, New York County,
    January 22, 1932.
    
      Sullivan & Cromwell, for the plaintiff.
    
      Pinto & Marcantonio, for the defendants Union Square News Dealers Association and_ Charles T. Eappina.
    
      Francis B. Sanford, for the defendant American News Co., Inc.
    
      Platt & Friedman, for the defendants New York Newsdealers’ Protective & Benevolent Assn., Inc., and Louis E. Libien.
    
      William H. Wurts, for the defendants Dell Publishing Company and George T. Delacorte.
   Lydon, J.

I think the complaint probably states a cause of action to restrain an unlawful conspiracy, but upon a consideration of the affidavits I am of the opinion that sufficient answer is made to the charge. The case appears to me to be one where the publisher of a magazine, as a matter of business policy, has decided not to sell the publication to plaintiff. It is not a case where publishers or dealers have entered into an agreement or arrangement with one another to create a monopoly or restrain competition. It is a case where a particular publisher has decided that it does not wish to do business with a particular purchaser and has instructed its agent to refuse to make sales to that purchaser. The newsdealers’ associations which are made parties defendant appear to have made representations and objections concerning the sale of the magazine to plaintiff, which they had a perfect right to do, but there is nothing to justify the claim that they became parties to any agreement, arrangement or conspiracy.

The motion for an injunction and the cross-motion to dismiss the complaint will, therefore, be denied.  