dealer or dealers in second-hand articles, the possession of a bottle or siphon is to be deemed presumptive evidence of said unlawful use, whereas, as to any other person, the use of a bottle is to be deemed presumptive evidence of the unlawful use, purchase and traffic in such bottles, siphons, etc. Although the magistrate's return shows that the defendant did have in his possession "six siphons filled with some beverage," it is not contended that the defendant is guilty of the charge of having in his possession filled siphons, and properly so, because possession (by the defendant) of filled siphons, under the act, is no crime, unless by a junk dealer or a dealer in second-hand articles, and it is not claimed that the defendant is a junk dealer or a dealer in second-hand articles. Therefore, the question to be determined is, whether the defendant did fill, use, buy, sell, give, take or otherwise dispose of, or traffic in said six siphons so marked with the name and device of the corporation "Carl H. Schultz," in violation of law. It nowhere appears from the record that the defendant did any one of the things enumerated above. The term "use" is defined in the Standard Dictionary as follows: "The act of using; employment, as of means or material for a purpose; application to an end, particularly a good or useful end; as, the use of steam in navigation." The term "use" is also defined by Webster as follows: "The act of employing anything or applying it to one's service; application, employment, conversion to some purpose, as the use of a pen in writing." It must necessarily follow, therefore, that to prove the use of a thing, the use must be shown by an act of some kind, and the mere possession of a siphon or bottle does not prove the use of the same. The Legislature evidently sought to make a distinction between the possession of siphons and their use; otherwise, it would not have employed the words in contradistinction to each other. The term use was advisedly adopted so as not to expose any person who was not a junk dealer, or a dealer in second-hand articles, to being subjected to a prosecution merely because he was in possession of a siphon; in order to hold such person answerable he must have violated some one of the provisions set forth in this statute. Statutes passed in the exercise of the police power of the State, restricting and regulating property rights or the pursuits of lawful occupations and callings, should be construed strictly. Matter of Jacobs, 98 N. Y. 98; People v. Mark, 99 id. 377; Wynehamer v. People, 13 id. 378. The motion made by the learned counsel for the defendant to dismiss the charge for failure of proof should have been granted. The judgment is, therefore, reversed. Judgment reversed. COURT OF GENERAL SESSIONS.-NEW YORK CO. June, 1907 THE PEOPLE v. MARC KLAW AND ERLANGER. (55 Misc. 72.) (1). CONSPIRACY-COMBINATIONS-CONTRACTS FOR MANAGEMENT OF THEATRES-PENAL CODE § 168, SUBS. 5 AND 6. Where persons who own or control theatres through the country arrange for booking attractions at their theatres so as to enable companies to save expense by making continuous tours without retracing their steps, and agree not to produce in their theatres attractions controlled by rival interests and only such attractions as agree not to play in rival theatres in any city where they have a theatre, and bind parties by booking contracts to play in their theatres in cities where they have them or to remain out of such cities, and not to play in certain cities during specified periods of time and not to play in other theatres in the United States or Canada during the theatrical season covered by such booking contracts, such acts do not disclose a purpose to prevent any one from exercising a lawful trade or calling, and are not unlawful, and do not constitute the crime of conspiracy in violation of subdivisions 5 and 6 of § 168 of the Penal Code. (2). SAME. Plays and entertainments of the stage are not articles or useful commodities of common use; and owning, controlling and leasing theatres and producing plays and entertainments of the stage and booking contracts for the production of plays is not commerce. MOTION to dismiss indictment. Edward Lauterbach, Alfred Lauterbach, Levy Mayer and P. J. Rooney, for motion. Israel J. Kresel, Assistant District Attorney, opposed. ROSALSKY, J. On the 31st day of January, 1907, the grand jury of the county of New York filed an indictment, accusing the above named defendants, with others, of the crime of conspiracy, in violation of subdivisions 5 and 6 of section 168 of the Penal Code of the State of New York. The indictment charges that the defendants, with the other individuals named, for the purpose of unlawfully removing and destroying competition among themselves, and between themselves, and others engaged in similar occupations and businesses, and for the purpose of unlawfully creating and maintaining a monopoly in the county of New York and elsewhere in the said occupations and businesses, unlawfully combined to control and monopolize in the county of New York and elsewhere the said occupations and businesses, and to exclude and prevent all other persons from engaging in said occupations and businesses, and to destroy competition in the said occupations and businesses, and each of them, and to prevent other persons by force, threats and intimidation from exercising their lawful trades and callings in the county of New York, to wit, the said lawful trades and callings of owners and lessees of theaters, owners and producers of plays, and booking agents. It is also charged that the overt acts in furtherance of the conspiracy were the following: 1. The making of the agreement of August 31, 1896. 2. The making of the agreement of April 23, 1900. 3. The making of the agreement between the defendants and Felix R. Wendelschaefer, on August 17, 1903, whereby the said defendants obtained the exclusive control of the bookings of a theater controlled by the said Wendelschaefer, located in the city of Providence, in the State of Rhode Island. 4. The contract made on February 7, 1905, by the defendants and Wendelschaefer for the production of a theatrical attraction by the name of May Irwin in the Province Opera House, in Providence, Rhode Island, this being the theater, the exclusive bookings for which had been placed in the control of the defendants. 5. The transmission of the contract last above described by the defendants to Felix R. Wendelschaefer. 6. A threat by the defendants to one Lee Shubert, on or about July 1, 1905, to the effect that the defendants would refuse to permit any attractions owned by them to be produced in any of the theaters owned or controlled by the said Shubert, and would refuse to permit any of the attractions owned or controlled by said Shubert to be produced in any of the theaters controlled by the said defendants and the other parties to the agreement, unless the said Lee Shubert should break and repudiate a certain contract which was then and there existing between the said Lee Shubert and one David Belasco for the presentation by the said David Belasco of certain attractions owned by him in the theaters owned by the said Lee Shubert. 7. A threat by the defendants to one William F. Connor, in the month of December, 1905, to the effect that, unless the said Connor would repudiate a certain contract which was then and there existing between him and the said Lee Shubert, under the terms of which the said Connor and the said Shubert were jointly to manage a theatrical tour in the United States for one Sarah Bernhardt, he, the said Erlanger, and the other defendants would refuse to permit the production of any play or theatrical attraction in which the said Sarah Bernhardt should act, in any of the theaters controlled by the defendants. Thereafter, an order was granted for leave to the defendants to inspect the stenographic minutes of the evidence and proceedings before the grand jury. The defendants now move to dismiss the indictment, upon the following grounds: 1. That the evidence fails to show any crime as having been committed by the defendants herein. 2. That the crime, if any such be shown, was not committed within the county of New York, within the period prescribed by the Statute of Limitations. 3. That illegal, incompetent, immaterial, improper and prejudicial evidence against the defendants was admitted upon the inquiry before the grand jury. 4. Upon all the grounds mentioned in sections 313 and 671 |