
    Isidor Straus and Nathan Straus, Composing the Firm of R. H. Macy & Company, Appellants, v. American Publishers’ Association and Others, Respondents.
    
      An unlawful combination enjoined from spying upon another person’s business.
    
    Members of a combination, who, after such combination has been declared unlawful by the Court of Appeals, for the purpose of carrying out the objects of such illegal combination, spy upon another person's business, thereby seriously injuring it, will be enjoined from persisting in such espionage.
    Van Brunt, P. J., dissented.
    Appeal by the plaintiffs, Isidor Straus and another, composing the firm of R. H. Macy & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of January 1903, denying the plaintiffs’ motion for a temporary injunction.
    
      John G. Carlisle and Edmund E. Wise, for the appellants.
    
      Stephen H. Olin, for the respondents American Publishers’ Association and others.
    
      Thaddeus D. Kenneson, for the respondents Walcott and others.
   Ingraham, J.:

This appeal, which was submitted in the April term of 1903, was held pending the decision of the Court of Appeals on an appeal from an order of this court reversing an interlocutory judgment sustaining a demurrer to the complaint. Upon that appeal the Court of Appeals has held that the complaint states facts sufficient to constitute a cause of action (Straus v. American Publishers' Assn., 177 N. Y. 473), and the question whether, under the circumstances,'there should he a temporary injunction before final judgment is now presented. The demurrer was overruled upon the ground that the agreement under which the defendants are acting is a combination in violation of section 1 of chapter 690 of the Laws of 1899.

In answer to an allegation in the affidavit upon which the motion -is made, that the American Publishers’ Association, through its manager, established a system of espionage upon the manager of the book department of the plaintiffs’ business and caused her to be followed and shadowed by detectives, both at her home and at the plaintiffs’ place of business, and that employees of the plaintiffs were bribed to give information concerning the sources of plaintiffs’ supply, the president of the association stated, without denying this allegation, that any steps taken by the Publishers’ Association to watch transactions in the plaintiffs’ store have been wholly for the purpose of detecting these false and fraudulent purchases on behalf of the plaintiffs and their agents and to enable the different members of the Publishers’ Association to enforce the contract, made by them with the purchasers of copyright books, that such copyright books shall be sold to the public only at the net prices affixed to them; ” and the manager of the Publishers’ Association, while not denying this allegation of the manager of the plaintiffs’ book department, states: As none of the members of the Association sell their copyrighted books to the plaintiffs, it is certain when the plaintiffs advertised such books for sale.that they have obtained them either by false representations or by a breach of contract with some of the persons who have bought them from the publishers. In either case the publishers have the right to ascertain how the plaintiffs have obtained the books.” The defendant, the American Publishers’ Association, is a corporation organized under the laws of this State. It has entered into a combination to prevent the plaintiffs from purchasing books with which they can carry on their business except upon such terms as is imposed by the corporation. To carry out this object it has established a system of espionage upon the plaintiffs’ business, causing the plaintiffs’ manager to be followed by detectives and publishing to the world that any book dealer who sells any books to the plaintiffs will not be allowed to purchase any books from any member of the Publishers’ Association or from any dealer to whom the members of the Publishers’ Association hav.e supplied books; and the combination having been declared to be a violation of law, and it appearing that those acting in pursuance of this combination have caused serious injury to the plaintiffs, it would seem to follow that the defendants should be prohibited from carrying out the illegal combination.

We accept the statement of the defendants that they believed the combination which they adopted was legal and did not violate the statute and that they acted under the advice of counsel and in entire good faith; but the highest court of the State having declared the agreement to be an illegal combination, further proceeding under it ' should be restrained.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the temporary injunction, granted.

Patterson, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., dissentéd.

Order reversed, with ten dollars costs and disbursements, and motion granted. ' ■  