
    Andy Amann and Another, Plaintiffs, v. United Booking Offices of America et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1912.)
    Pleading — matters relating to pleadings generally — complaint or declaration — demurrer — nature and office of demurrer — failure to state a cause of action.
    Where the complaint, in an action for damages for conspiracy to deprive plaintiffs, vaudeville actors, of their means of livelihood, alleges that defendant, a theatrical booking and employment agency, formed a combination and conspiracy with others to control the vaudeville booking business in the United States and Canada, and pursuant thereto agreed to prevent, by coercion, threats, intimidation and duress, the earning of a livelihood by acting in vaudeville unless all persons engaged in the same agreed to obey the rules and regulations of the combination; that during 1907-1910 defendants blacklisted and boycotted all vaudeville actors refusing to be bound by the mandate of the combination; that on January 21, 1907, plaintiffs, having refused to be bound by some of the conditions imposed by defendants, came into disrepute and ill-favor, whereupon defendants did illegally and maliciously place a ban against plaintiffs and their sketch, and prevented them from earning a livelihood; but in which complaint there is no allegation what the rules and regulations of the alleged combination were; what demands, conditions and limitations, defendants required plaintiffs to meet; that any rule made by the defendants, or any demand made upon plaintiffs, was not strictly lawful and proper, and not unreasonable; and that the plaintiffs had sought and been refused employment by reason of the alleged wrongful acts of the defendants; the complaint is demurrable on the ground that it does not state facts sufficient to constitute a cause of action.
    Demurrer to amended complaint.
    Maurice Goodman, for demurrant.
    Denis F. O’Brien and M. L. Malevin&ky, opposed.
   Giegerich, J.

The action is to recover the sum of $30,000 actual and $30,000 exemplary damages for an alleged conspiracy to deprive the plaintiffs of theinmeans of livelihood, as hereafter indicated. The amended complaint alleges that at the times referred to therein the plaintiffs were partners presenting a vaudeville act and sketch under the firm name of Amann & Hartley; that the defendant the United Booking Offices of America, Inc., is a corporation created and existing under and by virtue of the laws of the state of Maine, and doing business in the city, county and state of Hew York as a theatrical booking and employment agency; that the defendants Benjamin F. Keith, Fred F. Proctor and Percy G-. Williams are officers and agents of said corporation;, that on or about the 1st day of July, 1906, the.defendants formed a combination, confederation and conspiracy to control and monopolize the vaudeville booking business in the United States of America and Canada, and that, pursuant to said conspiracy, they agreed among themselves to prevent, by coercion, threats, intimidation and duress used and exercised towards all persons and interests engaged in the vaudeville business in the United States and Canada, any actor in vaudeville from earning a livelihood in said profession who would not in all things agree to obey the rules and. regulations of said combination and confederation and agree to be bound by any and every demand, condition and limitation that said combination and confederation thought necessary and expedient and demanded to perfect said organization, combination and conspiracy, for the purpose of controlling and monopolizing the vaudeville booking business as aforesaid;” that the defendants perfected said! alleged combination and monopoly,, and control more than ninety per cent of all the vaudeville enterprises in the United States and Canada; that pursuant to saide combination and conspiracy, during the years 1907, 1908, 1909 and 1910, the defendants did blacklist and boycott all vaudeville actors refusing to be bound by the mandate of the said alleged combination; “ that on or about the 1st day of January, 1907, the plaintiffs came into disrepute and ill-favor with the defendants, having refused to become bound by some of the conditions of the defendants, and having run counter to the wishes and desires of said combination and confederation, whereupon the said defendants did then and there, illegally, willfully, wickedly and maliciously cause to be placed their ban or bar against the plaintiffs and their act, sketch and work, and did then and there from week to week and month to month up to and including January 1, 1911, place upon their boycott and blacklist sheets the names of the plaintiffs herein and caused the same to be circulated and published among all those persons or interests identified with the defendants’ monopoly, combination, confederation and conspiracy, setting forth to such persons among whom such sheets were distributed that plaintiffs were not to be employed or engaged by any of these persons, as a result of which the defendants did then and there cause the plaintiffs to come into disrepute with the vaudeville profession and caused them to be shunned, ignored, avoided, blacklisted, boycotted and deprived of the capacity to earn a livelihood, and did by reason of said illegal acts as aforesaid prevent the plaintiffs from earning a proper and reasonable livelihood.” The defendants have demurred to the amended complaint on the ground that the same does not state facts sufficient to constitute a cause of action. In my opinion the amended complaint is demurrable because it fails to show what the rules and regulations of the alleged combination and confederation were, and what was required under them and from those obtaining employment in any of the vaudeville enterprises controlled by the defendants; nor does the amended complaint set forth what demands, conditions and limitations the defendants required the plaintiffs to meet, or what the wishes and desires of the said alleged combination and confederation were to which the plaintiffs ran counter. The plaintiffs call attention to the conspiracy article of the Penal Law of this State, but the amended complaint does not contain any allegations of fact which bring the case within such provisions. In fact it fails to show any illegal act whatever on the part of the defendants, nor does the complaint allege that any rule made by the defendants or any demand made up'on the plaintiffs was not strictly lawful and proper- and not unreasonable. Prom all that appears in the complaint, what the defendants demanded of the plaintiffs was entirely legal and proper, and having failed to set forth any illegal acts the presumption is that all that these defendants did was entirely legal and proper. MacGinniss v. Amalgamated Copper Co., 45 Misc. 106. The amended complaint is also defective because it fails to allege that the plaintiffs'made application to either of the defendants or at any of their vaudeville booking or employment agencies, or at any other vaudeville booking and employment agency not controlled by defendants, for employment, and that such employment was refused. Hundley v. Louisville & Nashville R. R. Co., 105 Ky. 162, 63 L. R. A. 289, 88 Am. St. Rep. 298. In the case last cited the petition, as amended, averred that the plaintiff had no trade or calling except railroading; that for the past five years he had been in the employment of the defendant; that while engaged in the discharge of his duties he was wrongfully, unlawfully and maliciously discharged by it; that it wrongfully, unlawfully and maliciously blacklisted him; that he was blacklisted wrongfully, unlawfully, maliciously and falsely by its placing upon its records a pretended cause of discharge, to wit, neglect of duty, with a view of injuring and preventing him from entering its employment or that of other railroad companies; that it had entered into a conspiracy and combination with other railroad companies by which its employees discharged for cause would not be given employment by other railroad companies; that on account of its false and malicious acts and its conspiracy with other railroad companies he had been deprived of the right to again engage in the employment of the defendant or other railroad companies; that the wrongful acts mentioned were committed for the-purpose of making and had made' it impossible for' him to ever again get .employment from the defendant on any of its lines or from other railroad companies .in the United States, and that he had been damaged thereby in the sum of $5,000. The court,.in passing upon the sufficiency of the petition, at page 167 said: The petition does not state a cause of action against the defendant. The averments that he had been deprived of the right ’ to again engage in the employment of other railroad companies and that the alleged wrongful act had made it impossible for him to ever again get employment with other railroad companies are mere conclusions of the pleader from the facts alleged. It should have been averred that he had sought and been refused employment by reason of the alleged wrongful act. An agreement made with other railroad companies not to employ defendant's discharged employees does not injure the plaintiff unless earned out. An averment that the-, defendant conspired and combined with other railroad companies to do an act, if unlawful, would not obviate the necessity of making the averment that he had sought and been refused employment by reason of the alleged wrongful act. Injury is the gist of the action. The liability is damages for doing, not conspiracy. The charge .of conspiracy does not change the nature of the act. In an action for damages there must be some overt act consequent upon the agreement to do a wrong to give the plaintiff a standing in a court of law. laggard, Torts, 638; Cooley, Torts, 279. For the reasons given the judgment sustaining a demurrer to the petition is affirmed.” „Upon the principle of the foregoing decision the failure to allege that the plaintiffs had sought and been refused employment by reason of the alleged wrongful acts of the defendants rendered the complaint demurrable. The demurrer is, therefore, sustained, with costs, with leave to amend upon payment of such costs within twenty days after the service of a copy of the interlocutory judgment,and notice of entry thereof.

Demurrer sustained.  