
    The People ex rel. Charles Burnham, Relator, v. William Flynn, Warden, Etc., Respondent.
    (Supreme Court, New York Special Term,
    February, 1906.)
    Conspiracy — Criminal liability—Particular conspiracy — To exclude . one from places of amusement.
    An agreement among a number of theatrical managers, by which they combine to exclude a certain individual from their respective establishments, constitutes an unlawful conspiracy; and proof thereof and of overt acts to that end is sufficient to authorize the commitment by a magistrate of one of the parties to such' agreement charged with the offense; ■
    
      Habeas Cobpus proceedings to review decision of a committing magistrate.
    Parker & Aaron, for relator.
    James W. Osborne, for William Travers Jerome, District Attorney.
   Fitzgerald, J.

The return of this writ shows that relator, after a preliminary examination in a magistrate’s court upon a complaint charging him and others with conspiracy (Penal Code, § 168), was held to answer to the Court of Special Sessions and, pending trial, was regularly committed to the custody of the respondent. The complainant, a dramatic critic, charged the defendant and other theatrical managers in the city of Hew York with forming a combination to exclude him by force from their respective establishments, and that, in pursuance of such agreement, certain overt acts were committed by which he was debarred from entering a number of places of amusement, notwithstanding the fact that in each case he was the possessor of an admission ticket, properly obtained and exhibited. It appears that these managers were offended by certain opinions expressed in some of complainant’s writings; their resentment may or may not be well founded, but that is immaterial. It cannot be held that dramatic criticism is of itself unlawful ; and, while it may be that critics in some instances transcend legal bounds, the law in such cases affords ample remedies against writers and publishers. It is claimed that the combination of managers in this instance practically control all of the city theaters, and that the effect of their conduct is to deprive the complainant of the opportunity of pursuing his profession. The gravamen of the charge lies in the agreement, and the collective rights of the parties thereto cannot be measured by the nature, of their individual rights in respect to individual acts. It is true that a theatrical manager owes no duty to the public to give performances, and that, beyond the return of any money paid in advance for seats, he incurs no liability should he see fit to discontinue for a time, or altogether abandon, attractions already-announced. He may even refuse to sell tickets to some applicants, while freely disposing of them to others, provided such discrimination is not on account of race, color, etc. (Penal Code, § 383); but, conceding him all these rights, they cannot be held to excuse agreements between a number of managers to the prejudice of an individual or a class of individuals. There are, unquestionably, many purposes for which persons engaged in the same general line of affairs may lawfully combine; but when the purpose of the combination is of a character to affect prejudicially the interests of others, then acts which may be within lawful bounds when done by an individual may become criminal if done in pursuance of a common agreement by a number of individuals; thus it has been held that a spectator may lawfully hiss an actor, but that it is otherwise, if several persons go to a performance with a common understanding for such purpose. Clifford v. Brandon, 2 Camp. 357. It is as much conspiracy to agree to do lawful acts hy unlawful means as it is to agree to do unlawful acts; and, tested by the character of the act contemplated, the agreement becomes often of itself the unlawful means. The possession of a ticket is evidence, to some extent, of the existence of contractual rights and obligations between its holder and the manager of a theater (Collester v. Hayman, 183 N. Y. 250); and an agreement or understanding to ignore or repudiate such contract, and to deprive the holder of his right to occupy a seat and witness the performance,” without showing any breach of condition on his part, may constitute an actionable wrong. Lumley v. Gye, 2 El. & Bl. 216. The findings essential to the validity of the commitment, to wit, that a crime has been committed, and that probable cause existed to believe the defendant guilty thereof (Code Crim. Pro., § 208) are supported by evidence; and the discretion of the magistrate cannot be re-vie-wed upon habeas corpus proceedings. Writ dismissed and relator remanded. Order to be settled upon notice to all parties represented at hearing.

Writ dismissed and relator remanded.  