
    William H. Collister, Appellant, v. Albert Hayman and Others, Respondents.
    
      Theatre tickets — they are revocable personal licenses — refusal to accept tickets purchased from, speculators holding licenses from the city — what does not show that tickets were sold as oi'dinary merchandise.
    
    A theatre ticket is a revocable, personal license, given by the proprietor of a theatre to the purchaser to enter the theatre for the purpose of witnessing a performance.
    It is, therefore, competent for the proprietor of the theatre to refuse to recognize tickets purchased by a ticket speculator from one of the proprietor’s authorized agents and sold by the speculator outside of the tneatre to persons seeking admission thereto, and to warn persons intending to purchase.tickets from, the speculator that such tickets will not be accepted, notwithstanding that the authorities of the city in which the theatre is located have issued to the ticket speculator a license authorizing him to carry on that business.
    What affidavits, produced upon a motion made by a ticket speculator to restrain the proprietor of the theatre from interfering with his business, are insufficient to show that the proprietor of the theatre, by his own acts, has changéd the character of the-tickets from that of revocable licenses to that of ordinary articles of merchandise, considered.
    Appeal by the plaintiff, William H. Collister, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 3d day of March, 1902, denying the plaintiff’s motion for an injunction pendente lite.
    
    
      Max D. Steuer, for the appellant.
    
      A. H. Hummel, for the respondents.
   Patterson, J.:

The plaintiff, describing himself as a broker or speculator in theatre tickets, sued the defendants as the proprietors and managers of the Knickerbocker Theatre in the city of Few York, to restrain them from interfering with him in the prosecution of his business of selling upon the sidewalk outside of prohibited limits, tickets of admission to that theatre. His complaint sets forth that he carries on business under a license granted to him by the municipal authorities of the city of Few York, and that hence he is lawfully engaged in the pursuit of his calling as authorized; that the defendants have placed upon the theatre building a conspicuous sign warning the public against buying tickets from him, and declaring - that such tickets will not be recognized or received by them, and the purchasers thereof will not be permitted to enter the theatre upon such tickets; and that the defendants employ agents or servants who approach persons intending to purchase tickets from the plaintiff and warn such persons against purchasing, and declare that if such purchases are made the tickets will not be received at the theatre and such intending purchasers will not be allowed to enter. Upon the verified complaint and affidavits of the plaintiff and others engaged in the same pursuit or occupation and an affidavit of an intending purchaser, establishing the acts of the defendants respecting the notification that tickets bought upon the sidewalk would not be received at the theatre, an application was made at the Special Term for an injunction pending suit to restrain the defendants from interfeiing with the plaintiff, to require them to remove the sign above referred to, and to compel them to desist from employing or allowing persons to interfere in the manner indicated or in any other manner- with the plaintiff in the lawful pursuit of his occupation. The motion for an injunction was denied, and from the order of denial the plaintiff now appeals.

Much of the argument of the learned counsel for the appellant is irrelevant to the real question involved in the action. That the plaintiff is engaged in a lawful business is not material to the discussion. He has purchased a privilege from the city to buy and sell theatre tickets, but that privilege relates only to the right to buy and sell that which is purchasable and vendible. The privilege accorded by the city authorities cannot change the inherent nature of a theatre ticket. If that ticket is something that may be bought and sold by any one, as the Court of Appeals seem to think railroad tickets are (People ex rel. Tyroler v. Warden of Prison, 157 1ST. Y. 116), then there would be a good ground to support the. plaintiff’s contention. But the weight of authority is to the effect that a theatre ticket is merely a license given by the proprietor of the place of entertainment to the purchaser of that ticket to enter upon the premises of such proprietor to witness a performance, and that in its nature it is a revocable license. (Purcell v. Pal/y, 19 Abb. H. C. 301; MoCrea v. Marsh, T8 Mass. [12 Gray] 211; Wood v. Leadbitter, 13 M. & W. 838.) The last cited case is a leading authority upon this subject; and while in courts of other jurisdictions somewhat different views of a theatre ticket- have been taken, those expressed by Baron Aldbrson in that case have met with acceptance in our courts, as would appear from the opinion of Selden, J., in Babcock v. Utter (1 Abb. Ct. App. Dec. 33). If the theatre ticket is a mere personal. license it is hot salable or transferable. (Mendenhall v. Klinck, 51 H. Y. 246.)

But the case presented by the plaintiff does not stop,here. His-claim is that, notwithstanding the apparent form of the ticket and the fact that ostensibly it may be only a revocable personal license, the defendants themselves have given to their theatre tickets another quality, and by their own acts have made them vendible articles. That the terms of an instrument are not conclusive that it is á license was held in Greenwood Lake c& U. J. It. It. Co. v. U. Y. & Gt L. It. It. Co. (134 H. Y. 435), and it is a familiar rule that a grantor of a license may, by his own acts, convert it into something more than a personal privilege to the licensee. Henqe, the plaintiff has undertaken to show by affidavit that these defendants have put their theatre tickets upon the market to be sold as any other merchandise might be sold by brokers or speculators, or, as in the Tyroler case, by what are called “ ticket scalpers.” • Affidavits were presented in the court below to the following effect: That these defendants do not sell at the theatre tickets for the first ten rows of seats in a certain section of the theatre auditorium; that tickets for the seats in such rows are sold by the defendants to persons who conduct what are called theatrical agencies at a great many different hotels and other places in the city of Hew York ; that the defendants charge to those persons a sum in excess of the regular schedule price at which tickets for other portions of the same section of the theatre are sold at the theatre; that the sales to the persons conducting those agencies are made with the intent and purpose that they shall be resold, at a further profit to such persons, to any one who may become a -purchaser; -and that thus the charactér of these theatre tickets is radically changed from that-of revocable licenses to that of ordinary articles of merchandise, that may be dealt in and bought and sold by any One.

But the affidavits presented to the court below on the part of the defendants meet this claim of the plaintiff. The defendants and those connected with the management of the theatre positively swear that the tickets issued to these theatrical agencies, so called, are not sold to such agencies at an advance ; that they are issued at the regular schedule price; that no extra charge is made for them; that they are furnished to the agencies purely as an accommodation to the public and guests of hotels, many of whom are strangers in the city, and the prices paid for them are the same prices advertised as*the box office rates at the theatre; and that tickets unsold_ by those agents are received back at the. theatre if returned before a certain hour of the evening of the night on which the performance is to be given ; that no profit whatever over and above the schedule price is made or received by the defendants; that all tickets delivered to the agents have plainly printed upon them that they will not be received from persons buying them upon the sidewalk,, and also have distinctly printed upon them a notice of the character of the ticket as a license, and of the control which the theatre managers intend to retain over those tickets as a license, so that purchasers from these theatrical agents are notified at once that the nature of the ticket is not to be changed by the fact of its being sold through or by such agents.

This plaintiff claims that he bought his tickets at one of the theatrical agencies known as Tyson’s. When he bought those tickets he knew of the limitation put upon them by the notification on the face and on the back of them, and that he was simply purchasing a license which would not be good in his hands to transfer or sell to purchasers who might apply to him upon the sidewalk. The claim of the plaintiff, therefore, that the nature of the license was changed by the acts of the defendants, is met, at least to the extent of justifying the court below in refusing to grant an injunction pending suit.

There is nothing in the contention that the defendants should be enjoined from refusing to accept these tickets from purchasers on the street because of a supposed discrimination between those whopurchase in that manner and those who purchase at the theatre or from the theatrical agents with the intention of themselves using these tickets. The provisions of law cited in this connection by the counsel for the appellant are fully satisfied when no discrimination is made by the theatre proprietors among the persons to whom they sell revocable licenses to enter their theatre to .witness the performance.

The order appealed from should be affirmed, with ten dollars costs and .-disbursements.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements,  