rights upon the Astor Theatre to require that the pictures continue to be exhibited first run at the Colonial Theatre exclusively. The contract is not only barren of any prohibition upon Columbia's right to enter into a first run contract with any theatre other than the Colonial, but expressly recognizes that other theatres might play first run. The Astor contract provides that Columbia Pictures may play first run on Atlantic Avenue at the Capitol.
Columbia was not limited to the Colonial Theatre for first run exhibitions under the terms of the Astor and Hollywood contracts. In releasing pictures to the New Embassy Theatre prior to the Astor or Hollywood Theatres, Columbia committed no breach of either the Astor or Hollywood contracts.
Plaintiffs contend, however, that as the New Embassy Theatre has been opened since the date of the contract the seventh printed clause of the contracts prohibits the New Embassy Theatre from exhibiting any pictures prior to exhibition in the Astor and Hollywood Theatres. This clause provides "* * * If clearance is granted against a named theatre or theatres indicating that it is the intention of the Distributor to grant such clearance against all theatres in the immediate vicinity of the Exhibitor's theatre then unless otherwise provided in the Schedule, such clearance shall include any theatre in such vicinity thereafter erected or opened". This printed clause, identical in the two contracts, must be read in connection with the typewritten clause on clearance which states that after exhibition in the Astor, it is given seven days clearance before the picture can be exhibited in certain named theatres.The Hollywood is given the same clearance but omits one theatre named in the Astor contract.
The quoted clause above refers specifically to clearance and cannot have any bearing on Columbia's right to release pictures for first run in the New Embassy Theatre. It refers to the interval of time that must elapse after the conclusion of the second run exhibition of a picture in the Astor or Hollywood Theatres and before it can be exhibited in any other theatre in which it has not been exhibited. While the contract does not restrict Columbia from releasing pictures for first run in the Colonial or the New Embassy, the plaintiffs are entitled to have the pictures after first run in either Colonial or the New Embassy, for second run. Columbia for instance cannot release a picture to Colonial for first run, then to the New Embassy for second run, and postpone the Astor and Hollywood to third run.
My conclusion is that the plaintiffs are not entitled to an injunction restraining the defendants from releasing pictures to the New Embassy Theatre for first run prior to such release for exhibition in the Astor and Hollywood Theatres, but that they are entitled to an injunction, if they so desire, restraining the defendants from releasing for exhibition in the New Embassy Theatre pictures prior to the Astor and Hollywood Theatres such pictures that have been exhibited for first run in a theatre other than the New Embassy.
I would have granted the defendants' motion for dismissal of the complaint had it not been for the limited proviso expressed in the preceding sentence.
I have not discussed the question of jurisdiction, as both sides indicated a desire to have the matter disposed on its merits.
Conclusions of Law.
1. The motion for a preliminary injunction enjoining and restraining the defendants from releasing, delivering, and exhibiting motion pictures at the New Embassy Theatre prior to at least seven days subsequent to the last showing of such picture at either the Hollywood or Astor Theatres is denied, but is granted as to such pictures which have had a first run in some theatre other than the New Embassy.
2. The plaintiffs to pay one-half the costs to this suit and the defendants one-half.
An order may be submitted by either side upon notice to the other side.
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