Variety (January 1924)

^mm'^fm^. •:^!nwpLiniw,JUPi-i""in II iiMiiv^pii,. u,*ujuinuiw»»"si^ "7* vf- ,AUKW«^np<iL'<'*.. ■JauiP'«"Mi. w Iw^.M-t^w.- "^-^T -■^^no^wn^r* sday, January 84. 19U VA RlET y HI^IMUJI' ''J 31 ,„, chwce" *n* ^nlUted Nathan !!*i.-n lawyer, to Intercede for SS "tb xTbee.' Hart te-tlfled he "^ke to Albee a« a result for an SCand nfteen minutes and tried hour to .- Vwason with him to show hhn ISe terror of the expulsion but i^ Ineifted he had suincient ^ of Harts disloyalty. Albee's objection was to a letter »nt by Hart to J. J. Shuberi. «f>irsse see Basil Lynn and How- Und at Kflth's ralace this week. They're a Ki-e;'t buy for you" The fihuberts were not In vaudevUle at Sm time. Hart continued, and l^wed he had sent the same let- Sr a"*" '" Zlegfeld and DllUng- hsm to conform with the act's re- auest for booking in a production; that he explained all of this to Albee; that the Keith executive sUted, "I have been blind to many things, but this was the limit." At this point Mr. Albee himself joined the court attendance, his ■•cond app«.nrance In court. Albco testlfl<>d personally Monday merely to Identify certain documentary exhibits. Beck's Comment Hart saltJ he saw Beck in the Orpbeum oflice to bid him goodby, Beck wanting to know why and when apprised commenting, "Strange things will happen." He reminded Beck of the Seeley ion- tract, stating he had advised Miss geeley to accept the several Junior Orpheum houses because of the long route on the bit; time: that he always advised the actiess tho past JJ years except during her two years as wife of Kube Marquard. the ttl.ints' iiit<-her: that he never (aw the substituted contracts, but that she played the Orpheum; that he also said goodby to Vincent, Ray Myers and Earl Saunders. Hart read a list of 70 acts he represented and dosr-rihed their necessary special scenery and prop- erties to further support the Inter- state commerce angle. Hart said none could play without these ap- purtenances. He stated he has lost them all becauBe of being ruled off the big timetwoklng floor, excepting the two or three he later repre- sented for Shubert vaudeville when that came Into existence. Talkino of "One" and "Cycs" Hart at this point was getting too technical for the court in sketch- ing the acts' scenery as beinc drops in "one." eyes, etc.. and when he mentioned "tormentors." the court had to laugh when Littleton good naluredly queried, "What do you mean by tormentors?"' Little- ton Indulged in asking if Rolls and Royoe used an auto in their act. The question of Charles B. Mad- dock and what services Hart did for that producer of "flash" acts (Maddock had previously testifled he utilised Hart as an assistant In the bookings) was debated thor- oughly and consumed much time. Goodman and Studin objoclcd to it, realizing how the value of such services might llgure. Importantly In dollars and cents in the award of damage.s If any. For the same reason Littleton and Judge Eppstcin were Insistent on having the testimony admitted, which Judge Hand so did, but with obvious reluctance. This was another Instance of Littleton's certain and well primed oratory swljiglng tho "edge" In his favor at crucial points In the trials progress. It became evident here how some of tho heretofore haphazaid and unrelated testimony is assuming the aspect of becoming linked up In some.fashion. Acts Deserted The plaintiff's counsel chaiaclcr- tied the defendants' "specie.^ of tenoiism" as being Instrumental in acts (including his and others like Maddiic k's. whom he also bociked) deserting Hart ".is It he were a leper' because of the big time's edict against Hart doing business with them. Littleton characterized Hart as "a maikiil man ' and recalled Lenetska "as a vjsilile and crinting example" of the Keith-Orphcuins practitus. Stuilin calmly refuted this by stat- ins "The jilaintiff's cnun.scl thinks they can prove dam.TCCs by accus- ing lis nf criminal charges and ter- rorism," but Judge Hand stated he Would admit it because a jury is not present. Litlleton in conclusion stated that timipiriAv he would concern liim 'elf with the question of damages as rogiirds Hart. Morning Session The ninrnin^ session oprnrd with Rluil.iis reading the dln-ct cx.im- inatinri t,y himself nnd floodman of Martin I>(k. 13 East tiTlh street. N'lw York who testined he was out of the vaudeville business, but a stiji'khr>Mcr In certain vaudeville propri-!;,.s. .Siudin intermittently 'nteripolar.d comment. ''ui1k>' H.ind at an CTily stane of *««• r»-!irit7ip wnntprt to know of Mtn- nin uha! he h'-td to s.Tv .Thout th<' 60-call.il trade agreements. Lit',:, i,,n fald it would need pa- ''!"''' lo prove certain points, such as Wr»;,|.|, Vaudeville rManagcrs' As- sociation being the forerunner of tho Orpla \im Cirruit. Regarding the Or- Ph'um Circuit. Inc., Studin pleaded innoc (iiff. (,n the ground it is merely J "oldiiig corporation and to which ''1111" ;on queried. "Is it possible vou can spread the blanket of a holding company over It and escape the Jus- tice of the law?" Studin contended that since 191:: no territorial agreement has existed, and cited the fact Beck came to New York to build the Talace .the- atre and also started to t.ike over the I'ercy Williams houses. Beck Denied "Blacklist" Beck's testimony from tho deposi- tion dented a "blacklist," except he admitted having heard such thing existed. Judge Ei>p8teln termed as "camouflage" the Orpheum's Insist- ence It Is not a booking exchange, but that It merely books theatres for its own managers by showing that while a $400 act receives a contract for $380, the house keeps the extra 5 per cent., or $20, and that It Is another method of doing the Keith's idea In a different way. Following I^enetska was George E. IJelmore (Helmore and Lee), former vice-president of the White Ratr and a professional gymnast. He testified his act cannot be classified fcecai'sc of Its novelly nnd'tb.e fact of "there not being any other of Its Kind in the world. It stands in n plr.ss by itself." He Identified a contract for book- ings on the Orpheum with the name "("nsey-R" typed on its bo.tom st.atlng It meant Beck tcld that sinop Tat Carey had done so much f.u him (Delmore) the act should go through the Casey office. This was in 1S08-1909. Judge Hand thought this a'so too remote, hut Littleton exolnined that in the Standard Oil nnd tobacco lit'- gaUlons this method was foMowod. admitting that "It's tire^■ome to the point of extinction," hut that he b id to follow beaten paths laid down by others or he may he beaten down for it. Hand hesitated ainut ad- mitting It, but conceded finally. At Of! point Goodman snfd: "1 object to what somebody s-ild to the witness in Milwaukee." Littleton said: "Of course, it's obje-tlonablc because it's In Milwaukee." Later, growing sarcastic: "He can't teV what ■William Morris said: don't let us find out anything you know." Delmore Threatened Delmore stated the Orpheum breached Its contract, and wlit-n In- signed for the Morris circuit Mur- doch sent for him and wanted t know why he breached his contract t>clmore said he told Miirdcc'- t: Orpheum breached it. and that Mur- dock threatened he would never get work out of the Keith office again unless he canceled with Morris which was refused. Delmore testi- fied he asked if the "l>lacklisl ' would ever be lifted, but Murdock replied: "We may take back Lauder or Tan- guay because the offlce needs such acts," but not him. After the midday recess Delmore was cross-examined by Goodm.an. The witness could not recall having seen Murdock in the Palace or Put- nam buildings in 1009, stating he thought it was the Palace. Delmore said he has appeared for Keith and Pantages since, but he was granted employment by Keith's for a reason. Goodman didn't want to know the reason, but Littleton, on the redi- rect examination, brought out It was during the Federal Trade Commis- sion's Investigation of vaudeville. Delmore stated he never worked for the Shuberts, nnd th-it lie is friendly and always has been friend- ly to the Keith organization. "Time* Square Daily," Jan. 22 MONDAY, JAN. 21 E. P. Albee, head of the Keith Circuit, was the most important but not tho most interesting witness called by the Hart side Monday. He went on the stand simply to iden- tify exhibits. Including statements and advertisements. Tills he did more or less s.atlftfaetorlly to the Hart side, hut drew a rather sharp bark from Martin W. Littleton when the latter tried to get hlin to admit he was president of the Keith or- ganiz.atlon. Albco said ho believed bo was. Liltkton askc^i "Is there any doubt of that? Pont' you know what olllee you huldV" Albee continued in his vagueness, insisting he could not lie iKi.sitive if he was jiresiilent of the li. l". Keith New York Theatres Corporation or the Keith Connecticut Coriioratlon. referring his ciuestioner to the <-or- potate papers. He admitted he bad some ronnectlon with the Vaudeville ColK'Ction Agency and the Excel- sior Collection Agen"y. but could not tell what positions he held in them. Albee idenlified various exhibits Including an ad in "The Player" in 1907 (then the offlcial organ of the White Hals). I| was si^'ned by -Al- bee, Percy Williams, J. J. Muidr.ck and 11. K. Keith, and stated ■■.-ill old siores -will be wiped out"; likewise the "blacklist" and cut sHlary p»-uU- b m Next he Idrntlfled an ad pulilisbed In "Varlely" June 9. 191tl, bearinc hi.s signature and referring to tlu fact that the 11'07 proiTil.se of har- monious and co-operative innova- tions were lived up to so long as H. K. Mudf.'p eontlnued as president of the Rats, but that tliey had to he severed with the ■dist.nsteful^ Harry Mountford reign. It added that as far as U. B. O. was con cerned every promise made by the V. M. P. A. would be kept. Knew LIttI* of V. M. P. A. Shown a Hat of the ofllcers of the V. M. P. A., Albee could not recall whether he was one, nor could he tell who the others were; he could not remember if he was Its first pres- ident, and said the names of John Consldine, Percy Williams and Mar- cus Ixicw as olllcers were confusing Keith attorneys were here sus- tained in an objection arising from a question by the Court as to what Littleton hope<l to prove by his V .M. P. A. line of questioning. Lit- tleton stating he wished to show the V. M. P. A, had built up the N. V. A. as .a successor to the Rats. This argument over. Albee then idenlified additional signed state- ments published In "Variety," and was released after a perfunctory and harmless cross-examination by his own counsel. Prior to the advent of Albee or the stand considerable progress had I een made ir» expediting the case Allrirnev Stodin (for Orpheuml reading Into the record a statement ■^bow'nr how much money the E^- • elsior (Orpheum) Collection Agencv rot tlirough lis 50-50 split with Hart on eorectlng the agent's com- mission from acts. These figures were; 1914, $''.Sir,.Sr) as did the Excelsior; fOl'i, $3,691 1.1; line, $4,260.34; 1917, »5.574.3S: 1918, fr. .1.'3.«2: 1919. $6,945.40; 19L0, $0.- 6C0.35; 1921, $3,516.70. It makes an .iverage Income of over $j,000 for the eight years. The Hart side then put into tlje record agreements between B. F. Keith and Harry Davis, dated 190' nnd 1915, whereby Keith's pledged itse!/ to book the Davis houfe in t'itrsburgh ond to stay out of Al- legheny county. Fitzpatrick Testifying James W. Fitzpatrick, who de- scribed himself as a wriler and cx- :\:tor as well as president of the -American Artists' Association, a branch of the Four A'a, was the first witness of the day. He said that prior to 1906 be was Poll's personal agent: from 1906 to 1915 an aetor, ind since then a writer. He called himself the Big Chief (president) of ;he Rats. He said he worked al- :vnst exeluslvely for Keith and Or- pheum time, appearing In almost every type of act. Speaking for the interstate commerce angle, he de- scribed the props of gymnasts, divers. song and dance aets, ."ketches, etc., declaring virtually every act needed props of some sori. if o;ily music, to perform. He ex- cepted Walter Kelly and Julius Tannen. Asked by Littleton if he were still writing acts, Fitzpatrick admitted he was, and Goodman objected to his nntwering a question, "Under what names are they being ployed?" Fitzpatrick th.inked Goodman "heartily" for objecting, and Lit- tleton withdrew the question. Over the objectffen of Goodm.in FitzpaJrick was permitted to stale it as his opinion that 65 to 75 per cent, of acts carry costumes, scen- ery or props. His description of booking, that "an act engages, either voluntarily or by force of circum- stance," to employ an agent and accepts whatever salary a booker fixes, was stricken out on Good- man's objection. Having previously defined big time ns two-a-day, full week stands to reserved seats and small time as split weeks with a mini lum of three-a-dny, Fitzpatrick wag cross- questioned on this line by Goodman. He answered a question by saying Proctor's, Mt. Vernon, split week, two-a-day, was "an illegitimate big time house," or big small time or small big time. He called n two-,a-day house playing three shows Sunday a small time stand, nnd also said that if tlie current New Y'ork Palace bill was shifted to a three-a-day house It would be big time acts In a small time house. "Risley" Demonstration Pemonstr.atinpr a "risley" act, Fitziialriek Hiriied the <'hair on its back and demonstrated the ""cradle." Then, to bear out his claim tb.it proi>s are more lm|)ort:int than per- formers 111 a magic act, ho told how ho had learned Fox's levitaticjn trick, by permission, through stand- ing in the wings and watching the aiiparatus worked. A spirited exchnn^'e came between Fitzpatrick and Goodman as to whither nn act or a h.a-seball player needed props most. Fitziiatrick contended a ball player could get along without rarrying ball, bat or other parajihernalia. but a gymnast had to have his pad. Here attorney Studin relieved Oofidman nnd state<l that whereas only 75 per cent of nets need props, 100 per cent of ball tilayers need uniforms, bJits and baseballs. Asked If he were prejudiced against Keith's, Flt/patrick s.nld '■no." but Inter said he testified Ttrtttnrt thf-m tn the FnVral trsd" hearing .-ind v.ould testify against them "every eli.ance I get to brint' them to justice " Sol Prill, formerly Moss A Rrlll. owners <•! the Ktr.ind at Re ':awav told of Keith's shutting him off from their acts after they had been booking the house. He had been payincr $115 a week and offered to raise It to $;00. He said Murdoek told him "I can't see why we should send acts to other houses when we took so many years to build up tho Keith organization." Later, Keiths Columbia, at Far Rockaway, was opened and i.s showing vaudeville and feature pictures at $1.65 top. John Pollock, manager of the Photograph and Press Bureau, ot which K. (j. Lauder is president and J, J. Murdock secretary, testified that houses paid $0 to $7.50 weekly for photos and press material, and that he supplied them to all kinds of houses. He disclaimed knowl- edge of "oiipositiou' hou.ses, W. C. Fields' Act W. C. Fields, comedy juggler, told of his career In vaudeville and said he couldn't do bis act without props. He said be started in vaudeville at $l-'5 and wound up with $1,350 to $1,."00 a week for his act of four peo|)lc. including himself. Asked to tell huw good be was, he said, '1 think I'm prett. good, but I don'f say there are no better jugglers o»-, any as good." Mr. Littleton then read Martin Beck's deposition, detailing tlic Keith ami (Jrphei'iii territorial ugrcemenl and booking east and wc.-t. .Several laughs came when f" the reading revealed 9lujtin ob- jecting to questions and Beck with- drawing them. A letter was read fiom Beck to W. L. Passjiart, former foreign booking agent of the Orpheum decently loser in a suit against Heck), advising him. "Don't pay any attention to these malicious articles in 'Variety'." Another letter from Keck to Passpart advised him that -Marinelli had withdrawn his suit, accepted settlement and would act as the Orpheum foreign book- ing agent. It w:is during the reading of the Beck deposition that 10. F. Albee walked in. followed shortly by Mar- cus Heimann. successor to Bey^k as president of the Orpheum Circuit. Frsm "Times Square Daily" Jan. 19 FRIDAY, JAN. 18 The star wime.ss was Aribur Klein, a Shut>«rt employe, formerly general book ng manager ot tho ill- fateil Shubert vaudeville venture,' and still in the .Shubert employ, but currently house manager of the new Shubert legit thestre. the Imperial. ! Klein was deemed by Max Hart's rountel, Martin W. Littleton and Upp!!tein & Axman. as an Impor- tant wltneaa In their behalf, and Ms testimony was therefore considered mystifying to tht: show people present. The witness repeatedly contradicted h^ni^elf, repudiateil the premises the attorney put to him and generally ran counter to Hart's cause. What caused the biggest surprise was some tesiimony by Klein, which, if I-ee .'^liubcrt ever has his Shubert advance vaudeville $10,- 000,000 damage suit acainsi the Keith interests, recently instituted in the Federal District Court th.it would limit its chances if Klein should testify similarly in that ac- tion. Klein has been known to have been angling to get bark into vaudeville, deeming his assignment to the house management of a legit theatre a demotion. The man- ner In which his testimony struck the show people present m.ay be gathered from this remark to the Times Square Daily reporter by one of the actors present: "Well, I think I'll see Klein next week about showing my new act.' Attorney Littleton, who resumed the direct examination In the morning session, again giving way to Judge Bppstein later In the day. as happened Thursday, seemed to be cueing Klein from a sheet. The questlona asked seemingly were aimed to build up and support a premise, but Klein's refusal to co- incide with Eevenal of the queries apiwared to stump the counsellor. I'srtlcularly on questions of tho big tliiie. the "blaekliKl" and "opposi- tion" lists, Klein's memory would fall. Llltleton was forced to Interro- gate "Is your memory good, Mr. Klein?" to which Arthur replied In the affirmative, Juit About "Killed" Shuberi Case It was In Maiirlc© Goodman's crcss-examinatlon that Klein Just about "killed" the .Shiihert case for his employ'rs when they touched on the Snitbert unit vaud«vill« ven- ture of 192:-1923. Klein set forth that because the .Shuberts hsd learned the straight vaudcvlllo policy hiid proved a fiivver through their experience that the public had been educated to patronize Keith theatres they hit on tho "unit" system of enter- tainment with I. H. Ilcrk In charge; that It was In charge of a man for- mcry chiefly Identified with bur- lesque and proiluei'd by producers formerly In burles(|iio <Hid of whom he had never heard; that ttie ven- ture w.is <l..«nfilroUH |.e..^.jiuse f>f these burlesque peoples lack of vaudeville knowledge and cx|ieil- ence (which Is In dlret refu! ition to the .Shuberts' $10,000,000 iillesa- tlon that the Keith monopoly and unfair (ompet.tion were'tl ' enn«i>s of puttinc Bhubert vaudevUle out of bualneaa). "Buelat^ua Dressed Up" Klein continued that these units were In reality burlesque ehowa dressed up. Goodman asked, "Kx- plnln to His Honor what you nxoan by burlesque." Klein's ai^jwer classified burlesque as "an unclean show, not high class and not suite. 1 to a family audience.' Goodman prodiie^d a list of .shu- liert acts that Hart had handled while Klein was In charge of Shu- bert vaudeville. (Where that lirt came from made iiiaiiv, many bon- der.) Klein also agreed he kept a list of acts that played the opposi- tion, (to the Shuberts), stating he did not want to repeat them too close to their previous stand. Klein also aKreed this was a custom In booking activities. The day'a proceedings opened with Judge Augustus N. Huid sug- gesting to Littleton I'at h* iig up a brokerage decision on wklcb to base hia claim and both owinaels in turn augcasting the judge read up on the baseball decision the re- cent BInderup film decision and others since. Klein, when called, described him- self aa a theatrical manager of 20 yeara' experience, residing at 428 Riverside drive; that he waa formerly an actor; that 15 years ago he waa with the Percy O. Williams agency In charge of the booklnga; late an Independent agent; that ha went on the Keith's bookMig floor In I91<-1(17: that he had to aecur*^ such permlsalon from E. F. Albee. Klain Non-Pluiaa Attornty Kleln'a answer* to dlstlngulahlns between the big and small tlms seemed to nonplus Littleton such as aaylng ther* was no distinction between both grades; that there was other blK time In 1914, classlfylns Foxs Audubon and Jamaica aa two-a-day houses. Littleton's premise all aionx has been that Keith's has the big time "sawed up" in the east and has had It throusb nn organised combination for many yeara even antedating 1914. Klein explained that the reason J. J. Murdock refused him permis- sion of "tha floor" later, aa he subsequently learned waa becauae he (Klein) had produced a legit attraction and booked It through the Shuberts. He quoted Albee as stat- ing he wanted to know why a man like Klein, who was making the money he did. should have to go out- side the booking vaudeville field. Klein Insisted that Percy Williams did not maintain an opposition to William Morris' acts and that I~e pkiyed turns that played the Morris houses, but Littleton pressed the point and brotight out that this was after Morris had gone out of busi- nesa Klein's Slippery Memory ?..,. Then came the "blacklist'' sngle and Kelln's memory faltered. He couIJ not seem to remember seeing any such list, but staled he knew what the term meant. Littleton dis- played some spirit and asked, "Am I getting too technical for you when I say 'blacklist'?'" Klein reluctantly confirmed that there was such a ILst In the Williama office of acts not to be booked; that It was kept openly on the booking managers' fables; that It wasn't of several pages but all on one long sheet of parser. Then came the Shubert vaudeville angle. Klein stated that beciuie tho circuit only : ad 15 to 16~iit4k<es 1 ' " ta contract acts for 20-ln-24 week., and that business suffered because of the constant repetition of the same acts. The Avon Comedy Four, Oallagher and Shean. and Moran .id Mt ck were touched upon aa stepplni; out of Shubert contracts lid refusing t open; he also denied that any of these acts were the blg- i. ^st of their ind In vaudeville; that Gallagher and miean "never happened" that time, supplementing this that they later hit on on Idea which "made" them. KhMn stated the Shubi -ts are no longer In ^.ludeville xcept ith Sunday night conccrta. Salaries Sky-Rocketed Goodman'a cross-examination was brief but well pointed. Klein testi- fied that the .Shuberts played about 175 acts the first year and between 180 and 200 acta the second ae.aaun; that the Shuberts and Keith's wcie In constant coiiipetitlon for aet-s whkh tilted salaries far out of pro- jjortlon to their real value: that someiimoe one was succesfful In outbidding the other, aometinies tlis (C.mtinued on pnf;e 4-> i "4 ^4 CIRCUS NEWS ' (j** nevrm if >■.■ iiju <» w «t k : •THE CLIPPER" OUT TOMORROW—10«