The opinion of the court was delivered by: HERLANDS
This motion by defendants, so far as it seeks summary judgment, raises two questions:
(1) Does the evidence submitted by plaintiff to explain and avoid its general release, which is pleaded as a defense by defendants to the present action, raise any genuine issue of fact?
(2) If there is no question as to the binding effect of the release, which had been executed in favor of two of the present defendants, does it inure to the benefit of the six other defendants in this antitrust conspiracy case, under the doctrine that the unconditional release of one joint tortfeasor operates to release the other joint tortfeasors?
This private, civil, antitrust treble damage litigation began on August 12, 1954, when plaintiff filed its original complaint charging the following eight defendants with having engaged in a conspiracy 'since January 1953' in violation of the antitrust laws, Clayton and Sherman Acts, 15 U.S.C.A. 1 et seq.: Loew's Incorporated, Paramount Film Distributing Corporation, T.C.F. Film Corporation, R.K.O. Radio Pictures, Inc., Warner Bros. Pictures Distributing Corporation, Universal Film Exchanges Inc., Columbia Pictures Corporation and United Artists Corporation.
After various interlocutory proceedings, the action was discontinued with prejudice as to the defendant T.C.F. Film Corporation. An amended complaint, filed on December 1, 1954, added Twentieth Century Fox Film Corporation as a defendant, eliminated paragraph '9' of the original complaint, and amended paragraph '6' to read as follows:
'6. For many years past all the defendants, together with various motion picture exhibitors, have engaged in a nationwide conspiracy to fix runs and clearances, to exclude many independent exhibitors from the first run market in order to suppress competition with favored exhibitors, and to monopolize the business of exhibiting motion pictures on first run. Since January, 1953, this conspiracy has had the effect of depriving plaintiff of a supply of first run motion pictures of a quality suitable for exhibition at the Holiday Theatre.'
Plaintiff seeks alleged damages arising out of its operation of the Holiday Theatre for the period January 1953 to the date of the commencement of this action, August 12, 1954.
All of the material allegations of the amended complaint have been denied by defendants in their answers.
The Holiday Theatre (formerly known as the Gotham Theatre) is located at Broadway and 47th Street, New York City. The plaintiff, a New York corporation, took over the management of this theatre 'as of January 16, 1953,' according to a letter sent by it on its letterhead under date of February 5, 1953 to United Artists Corporation (Exhibit 'A,' annexed to reply affidavit of Cyrus R. Vance). This February 5, 1953 letter states, in part:
'The new owners are, Michael Rose and Irving Perlin, who are operating the Holiday under the trade name Michael Rose Productions, Inc.
'We would like to have the opportunity of screening your future picture releases, and also would like to be advised, by mail, of any future screenings.'
'The letter is signed as follows:
'Michael Rose Productions, Inc.
The Vance affidavit states, on information and belief, 'that an identical letter was sent on or about that date (February 5, 1953) to all the other defendants in this action.'
Irving Perlin is an attorney. The general release involved in this case, executed and acknowledged by plaintiff (through 'Sam M. Rose, president') on February 5, 1954, was prepared by Mr. Perlin, as appears from the face of the release (Exhibit 'A,' annexed to the moving affidavit of Albert C. Bickford). Mr. Perlin has acted as ...