Opinion
July, 1904.
Edmond E. Wise, for the appellants.
George L. Rives, for the respondents.
The action herein was brought against the various defendants to declare unlawful a combination with respect to the selling of books alleged to have been entered into between them, and to restrain them from carrying out its purposes. The complaint has been before this court ( 85 App. Div. 446) and the Court of Appeals ( 177 N.Y. 473), demurrers thereto being overruled. The defendants have now answered, and the plaintiffs, claiming that various parts of the answer of the American Publishers' Association and its members are uncertain, indefinite and irresponsive, moved to alter it in these respects, which motion was denied, and from the order so entered they appeal.
The plaintiffs in the notice of motion specified sixteen objections to paragraphs of the answer. With respect to most of the objections we think that the paragraphs specified fully and properly answer the averments of the complaint. The plaintiffs fail to point out any very serious uncertainty or evasion in most of the paragraphs referred to, and it is pertinent to say that the complaint is very general in its terms and in large part avers conclusions. One line of the plaintiffs' objections is that the answer in several places avers or denies upon information and belief, and the plaintiffs insist that the defendants know of their own knowledge. This, we think, is not a very serious objection, and, as said by the respondents, while in some cases any one of the defendants might perhaps allege that he himself had or had not knowledge or motive or the like, he certainly could only answer on information and belief as to those matters with respect to his codefendants; and as to the averment that an illegal combination existed, the defendants would rely upon legal advice as to the nature of their association, and hence must answer on information and belief.
Wherein, however, we think that the answer is evasive and irresponsive is in those various paragraphs where the averments are made to date from the verification of the answer and not from the verification of the complaint. As contended by the plaintiffs, a defendant should not be permitted to evade the admission of a material allegation of the complaint, by shifting the time in which he addresses himself from the period contemplated in the complaint to a subsequent and much later period. The rights of the parties are determined as of the commencement of the action and subsequent occurrences are no defense. ( Gabay v. Doane, 66 App. Div. 507; Wisner v. Ocumpaugh, 71 N.Y. 113.)
The answer is most seriously at fault in this respect in the second and third defenses, wherein it is averred in effect that the plans and rules of the association only affect copyright books. The complaint averred that the combination related to books generally, and stated various acts of the defendants the object of which was to carry out such purposes of the combination. The reason for the defendants' choice of words is apparent from the opinion of the Court of Appeals ( supra) that as to copyright books the defendants' plan was not illegal since a monopoly with respect to such books was given by the Government. Although it is true that in view of this decision the defendants could not seemingly be restrained as to their dealings in copyright books nor held liable for damages resulting to the plaintiffs therefrom, the rights of the parties being fixed as of the commencement of the action, the defendants should state when the plans and rules relative to copyright books were adopted and wherein they have been amended; and whether as to other books the defendants deny the acts averred.
Other particulars in which the answer relates to a date subsequent to the verification of the complaint are not, we think, of great importance, such as the averment of the answer which permits the inference that George S. Emory, whom the complaint averred "is the manager of said membership corporation," is not now the manager, without saying whether he was when the complaint was drawn. This evasion is not serious, nor does it prevent the plaintiffs from proving the averment of their complaint.
Paragraph 8 of the answer does not meet paragraph 16 of the complaint, which avers that in furtherance of the illegal combination set forth the Publishers' Association and its members, immediately after its organization (in 1900), adopted a resolution and agreement, intended to prevent the reducing of prices on copyright books published by them by selling such books only at net prices, the answer being merely that the defendants "admit that on or about February 13th, 1901, the American Publishers' Association adopted certain resolutions which were thereafter from time to time amended" and "deny that the purport or effect of such resolutions is correctly set forth." It is thus not averred what the resolution passed February 13, 1901, was, nor how it was amended, nor whether preceded, accompanied or followed by a resolution of the character specified by the plaintiffs. Paragraph 8 of the answer should thus be made to distinctly state whether or not any such resolution as averred existed, or else give the date and nature of each resolution passed and the date and nature of the amendments thereto.
Paragraph 9 of the answer, we think, is also irresponsive, the complaint having alleged in paragraph 17, that as a part of the defendants' unlawful combination the members of the association agreed that net copyrighted books and all other books, whether published by them or not, should be sold by them to those booksellers only who would maintain the retail net price of such net copyrighted books for one year, and that an office was established for the purpose of carrying out this plan, and the members agreed that they would aid in the formation of a booksellers' association to co-operate with the American Publishers' Association in said unlawful scheme, and the answer denying "that the purport or effect of the said resolution is correctly set forth." The words quoted do not constitute a denial of the averment, no resolution having been mentioned, and should be stricken out and a general denial entered, or else other averments substituted to meet the allegations of the complaint.
Again, we think the answer irresponsive in paragraph 11, the complaint having alleged in paragraph 19 that the defendants have maintained the unlawful combination set forth, and the answer admitting that "they have maintained the plan and rules of the American Publishers' Association as the same have been from time to time amended." These words should be stricken out and a general denial interposed, or else the plan and rules of the association specified, when adopted, and the dates and nature of the amendments.
The 12th paragraph of the answer is evasive, the plaintiffs having pleaded in paragraph 20 of the complaint that they were invited to join the unlawful combination set forth and the answer admitting that the "plaintiffs have been invited to buy books from the defendant on like terms with others." These words should be stricken out and a denial or other suitable defense interposed.
Finally, we think that the admission of the 16th paragraph of the answer, that the "American Publishers' Association has by lawful means endeavored to ascertain how the plaintiffs obtained supplies of copyright books," does not meet the general averment of the 25th paragraph of the complaint that the defendants established a system of espionage in the store of the plaintiffs and otherwise, to secure information as to the business of the plaintiffs and the source of their book supplies. The words quoted form no answer as to books other than those copyrighted nor do they show whether or not the averments as to espionage, etc., were true, and they should, therefore, be stricken out and the paragraph made more responsive or a general denial pleaded.
Our conclusion, therefore, is that the plaintiffs' motion should have been granted with respect to the second and third separate defenses of the answer and with respect to paragraphs 8, 9, 11, 12 and 16 of the answer. The order appealed from is accordingly modified by granting the motion in the respects indicated and as so modified affirmed, without costs.
VAN BRUNT, P.J., PATTERSON, McLAUGHLIN and HATCH, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.