Variety (January 1924)

[ay. Januar)r 81,1984 VARIETY ..-^ ii- HART CASE DISMISSED iS.: (Continued from pft«« 5) «-fl- ot th« "myatertou. John T. ^^SS- *»«!• "> *"• William H. An- "> Sin InaictmenU against the 'i' i«tl.SaIoon League head when %- W l;.Ufled as to certain "glfU" t r^ anonymous .actors. A sum of V. ^^ 117 000 figured In 1920. which ^^Stft had not included In his Fed- it^ £5 Income tax returns on the the- ■l*'W bs thought them e-empt as i^Snuies" or "8'""" Littleton In- « i ejected that this amount is now r Ss subject of a controversy with '.;: the U S. Government as to whether V ar not it is subject to tax. V^ The session opened with Hart for ■^ Um third day resuming on the stand -^k Mdsr Goodman's cross-examlna- Son. Hart stated it was not con- iwered unethical to entice acts . irom other agents Into his told, but -' u the question of Integrity as con- ^ stitutes the character of a good srtUts' agent, Judge Hand re- ' A^-BWked, "We'll never get through -^t>U if we're going to enter Into the % ■tvomi'iO'* and subconscious mind of :f-ICBl» Witness." f r*' ' ■ Aets for. Produotions S^" The case of Belle Montrose (Mva- S!i .<«)•• and Allen) was , touched on. fe It bsing brought out that while Hart iv-wM not the personal representa- *^-«J»e of the actress, he bod written ':i j'3. Shubert relative to placing her -riJa. a production; also the Klein if Brothers, who played "Keith's Colo- *i!laUJ. signed through Hart for the PTvZutt Garden (Shuberfs). aP ^though Max Gordon (tewls & v&v Gordon) was the act's big time I-agent. Hart .admitted he was to V receive 10 per cent, of the team's " ■*" laUry on a contract which, with ■^ , Tenewal options, will be in force 5i' i^ eight more years, but that thus fiu" he has received nothing; that ' be did not settle with Gordon for f •" the commissions the Keith agent j'■ ■ was deprived of. Hart also denied recollection of Albee calling to his r attention a letter written by E. W. ^ "Wolf, the owner of an act In which •"< Milton Berlinger (now of Kennedy t and Berle, juvenile act), complaln- •S-w iot Of Hart's alleged efforts to en- ■ ■*■ tlee the youngster from the "Wolf I" ' Regarding the fight with Bentham, % ^^'ifkvt^ Hart and Bentham were ar- f» *" rtieted but later discharged in the \" West B4th street court, Goodman again started plugging "Variety" - (for the sake of a proper court re- port that terrible weekly must be i mentioned not once, but often. In these proceedings, even though dis- tasteful to the world's worst dally). Hart did not remember seeing the •^^ariety" story. whi"ch Goodman ex- plained was a visible consequence in the form of objectionable publicity Hart was subjecting the Keith offlce ': to through his pugilistic tendencies, lilttleton remarked, "All publicity Is Objectionable, you know." '-' Matter of Dlsordtrlinese j^i,,.' Judge Hand was Inclined to over- ,^!,jrule Littleton's objection to the In- treductlon of such testimony, but later sustained It. not without, how- ever, commenting. "They certainly JatA a right to exclude a man for • •'"getting disorderly; they have such ' '''t'lght on all circumstanccfi." "'' To this Little concurred, saying: - '■' "It you own a hotel you can order .•'■"«ihan out on that ground, but It is "■■'Bot'legally privileged here." Little- ton further characterized the "Va- '.' 'rtety account as hearsay. -■^ ''" StUdln then wanted to know: "Assuming all that Is alleged about ' 'a combination and a monopoly is teii^rtct, do you, Mr. Littleton, mean we have no right to exclude him, no matter what he did?" Littleton re- i .. plied again about "closing up the. IJ i,. ^venues of trade.'* This phrase has cropped up so :*r((Often it Is certain to have an im- I'liportant bearing on the caee when ^-.jithe judge reviews the record. Kvcn I.I from appearance, the jurist's atti- tude may be the tip-off on the de- cliilon, according K) certain opinions. When Hart again was referred to In a "Variety" news item about "Pugilistic Hart." he admitted hav- ing seen the caption but not reading the story Itself. Goodman wanted to know why "Variety," a week later, knew all about how Alliee ,.71n«d both Bentham and Hart $500 ,'^'and donated the amounts to the ; ^AAtorft' Fund, whereas Hart, who . tesTintMl "Variety" was the only '■ trade paper he read.*, did not know ./It until etx or seven wecl<S' Liter. ■ Another fight with Harry S'-^ks Hechheimcr, a theatrical attorney, was al.io mentioned, "Hecky " npaln re.iorting to his favorite .stunt of breaking canos over his opponents' craniums. Judge Hand allowed this tcatl- navr oa Goodman's explanation of I'.s purposa despite Mttietvil'a pica that people are often justified in de- fending tbemielvea. Another bout with Rutus LeMalre, who formerly worked for Hart, was recalled as occurring in February, 19J0, in front of the Hotel Astor. That about completed Hart's Ilstl- cutt encounters. Income Tax Reports Hart's 1920 government tax re- turn will be produced later, if a record of it is to be found, but the New York state return was dis- closed as bearing a $14,863.85 in- come, although Hart's vaudeville net Income for the purposes of this suit, as shown by the exhibits, - Is $70,000. The $17,586.17 not account- ed for (which Littleton explained is the subject of a controversy with the govrt-nment) was corhmented on by Goodman, who objected that "he can't claim damages from us on it." Studir\ harped on the fac.t that -only nine of the Orpheum houses of the 42 comprising th6 circuit play (Wo a day. Ha'rt agreed njan- agers play the most profitable pol- Harry Mountford Present Harry Mountford, who knows everything excepting the mind of a United States Court Justice, ate his lUnch as usual following the dismis- sal decision yesterday in the Hart case. Others had their lunch at the same table, but did not ■peak as freely as later when 'Arry was again presented at a conference held in the of- fices of. Eppstcin &. .\xman. Eppstein & Axman. are the attorneys for Hart, with Mar- tin Littleton, associate, also trial counsel. 'Arry had done much in fur- nishing the attorneys with in- formation about vaudeville, but the world's worst diily was unable to procure an opln- loin from 'Arry just why Hart lost. Mr. Mountford was cliicf adviser to the Federal Trade ■''Commission's counsel in the vaudeville investigation; he was adviser in the previous Hart suit, and Mountford Is "said to have told Lee Shubert nearly all of what Lee forgot about vaudeville. •i'l. Icy; that he didn't know whether the State-Lake, with Us four-a:-day policy, was the most profitable the- atre In the country; he didn't know that the two-a-day houses are rap- Idly disappearing, or that there is a marked tendency in the West .for the thrice dally policy. Studin asked: -"Can you name a Single act of merit that Is out of employment?" Hart couldn't, Stu- din remarking: "The fact Is that all good acts are in demand." Stu- din also stressed that acts have played Pontages and then Orpheum repeatedly. Hart Insisting "Some time after, quite some time." The midday, recess followed. Acta Come and Qo Hart resumed by agreeing as to the truth of a statement In his affl- davit, made in the MadRe Hart di- vorce suit. "It Is impossiblo for me to determine my income," but de- nied his business was speculative; that his bu.ilness is not in a con- stantly shifting condition, despite Studin pointing out the number of acts that have left Hart year after year, and new ones coming onto his books; that acts retire, like Harry Cooper, who is now an insurance man; or Herschel Ilenlers, now In Europe; or acts split up, like Rolls and Royce, tiiroUKh one being seri- ously 111; or Ames and Winthrop. ihrough Miss Wlnthrop's decease; or others go into production, like May Bolcy or r.crt and Betty Wheeler, all of whom Hart handled In vaudeville. Hart insisted he probably could have held all his act.i if iie hnil not been ruled oft the blg-llme floor; that Charles Bierbauer, his as.socl- ate, was also ruled off, and rein- stated later, but that nu-anllme he liad lost hl.s acts. Hart's Present Income Studin went Into Hart's prenfr.t Income from prortuclion, which was figured up to be about $1,000 a week Just now. nrcording to following amounts he receives from ihn following actors: Kddle Crn- tor $350; Harry Fender, $40; Frank Tinney, $02.60; Barrett, $J0; Wal- ter Catlett. $i:0; Andrew Tombes. $80; Rdberfc Wool^oy. $45; Ecrt Wbeeler, IW>; <llorla ley, $10: "Sl5e«W Gallagher, $50; Bobby Watson, $40; Bobby O'NeUl. $26; George Bancroft, $2S; and others. Hart stated he Is "In" on Will Rog- ers' phonograph recording (Victor) contract, but that he has not seen a royalty statement as yet; that Bessie McCoy Davis is not working, nor are Bernard Granville and other stars. Hart denied his income will be $50,000 a year, because it's Im- possiblo for an actor to work 52 weeks in the year. Hart denied that he stated to Frank Vincent he (Hart) was finan- cially in the same position as ever, only he "mLs.sed the boys in the office." Studin next touched on Harry Mountford's concern In the litigation, also 'Arry's interest In the Federal Trade activity, but B. H. Kahane, the Orpheum secretary and attorney, evidently whispered to Studin to snitch from that phase of the examination. Hart admitted owning OrpheUm stock and that he bought it at 32. and is patiently waiting for it to get back there. ,(lt Is now at 18Vi.) He admitted receiving some divi- denda. Hart'u alleged "xtrong" latiguoge to Vincent in the Orpheum office waa ordered put< on the record, but because of the women-lfl the court Studin whispered •It.to-the judge, counsel and the male meiober of the stenographic team. This was re- peated later, and was a humorous sidelight. Littleton stated Hart had been on the stand so long he will not go into a wandering re-dlrect examination but may recall him later for pur- poses of some correction. Mrs. Plt>- cus resumed the stand for a few minutes to testify as to her books for Goodman's benefit Jsnie Jacobs Impressive Jenle Jacobs followed and was an impressive witness despite her sur- prisingly short session on the stand. She gave her addresa at 201 West 54th street and 18 years' theatrical experience as an agent. She testi- fied she represented Pat Casey on the Keith's booking floor for 11 years during which period she received $50 a week; that WiUiaro Morris in the last few months of her employ was the cause of her getting $25 In- crease; that she resigned Dec. 20. 1919. and went to.California hoping to make a film connection that did not eventuate; 'that Jan. 19, 1920. she started working for the Harry Weber Agency at $150 a week and 60 per cent interest in any new ma- terial she brought to the Weber Of- fice; that she lasted only three days through Weber asking her resigna- tion to show E. F. Albee. after Al- bee had summoned Miss Jaboca to his office. Goodman objected by stating the witness also had a similar suit as this pending against the same de- fendants (it's for ,$3,000,000 dam- ages) which Littleton conceded. Judge Hand allowed the testimony stating. "It may have some bearing on the conspiracy without even touching on Hart; also the inter state commerce." Albee had wanted to know what Miss Jacobs In person meant by having actors sending wires asking for her reinstatement. This referred to several acts regretting Miss Jacobs' dlscnfranchlsement. Albee was quoted as staling what she meant by disrupting the Casey of- fice; that she told him she was very much hurt that Casey did not in- quire about her resignation although she had been In his service for 11 y«ars; that Albee told her that as Casey was protecting his interests he must protect fasey's; that he would nee Casey about taking her back which resulted in her return- ing to the Casey otfic.e in March, 19;;0. with a $25 increase. She left Casey again on July 29. 19:0; that she did casting for peo- ple; that Albee liad ruled .igainst her golnfr back.st:iKe to see acts; that throuph an advertisement In ■•Variety,' signed by Albee. which so ini|>rossed her because of Its ai- trui.sni. «he wrote the Keith execu- tive to the effect. "I wish I knew of a way to receive your forgiveness. ... I know you are a splendid man and I would "be ha'ppy to know I am one of yonr children. . . . Way down in your hig heart you can forgive, for you know Jesus forgave and 1 know you can. . . ." Albee Replied to Letter Albee's reply was read: "I can't believe you're less fortunate than I am. . . All I get out of life is a place, to sleep and cat. . . While I nm interested in seeing all advance. 1 am unwilling to disrupt an or- ganization. . . " including an- thelother reference about disrupting Casey'.1 office to .idvance her oWn. She stated she tried to see Albee again and wrote him but un.iuccesa- fully. Littleton waxed sarcastic, asking the objections to sucb Interroga- tions were sustained. Goodman's cross-exanr.lnatlon was brief and formal. Studin did' not avail himself of any cross-examina- tion. On Studin's motion to dismiss the complaint as against the Orpheum Circuit. Inc., Judge Hand agreed. "I can't see what they have to do with It." It was explained tliat be- cause It was the holding company of a number of corporations. It was liable. Judge Hand wanted to know, "Have you got a case where a mere stockholder was held liable?" Lit- tleton and Judge Eppstein (Epp- steln & Axman), associate counsel, thought they had a parallel. ("TIMES SQUARE DAILY," JAN. 25) Thursday, January 24 It's bitter for the "world's worst dally': to acknowledge It, tout "Variety" sure got some free pub- licity yesterday in the U. S. District Court as^ part of Max Hart's $5,250,000 damage suit agala..t tihe Kelth-Oi^heum big time circuits and allied officers. "Variety" was mentioned .often in the proceediags and., almost made one wonder whetlter that journal of theatrical dissemination was hot on trial rather than the alleged anti-trust Into another room for Midttlns on behalf of the pladntlOC. Hart testified he made asveral olTorts to get back Into the booking exchange after his discharge in October, 1920, and also had Judge Edward-E. McCall. a Keith attorney, intercede In his behalf without avail; described how an act is booked and stated that a small per- centage of vaudovllle act« can step into a revue. ., . Hart's In com* Goodman opened his cross-exam- ination by moving to strike ou^ of the record all the books and papers and exclude Hart's testimony as re- gards the question of damagea on tho ground the books kept by Hart's secretary, Josephine Brown (Mrs. Pincus) were not proper evidence to prove the measure of damages and on the ground the books show muti- lation and looao method, as to raise a queatlon as to their correctness; ' that the defendants hiid no oppor- tunity to examine them before and that th^ir general appearance war- rants the court to reject them. The motion was denied but Goodman merely entered this for purposes of record In case the mattbr reaches a higher court. ■> ' Goodman protoably had In mind one lodger which hod the pages torn out up to page 64, but which Miss Brown explained was because the forepart was used by N. E. K^n- waring, who was Hart's omce«a8- soclate. and tha^ when Manwarlng left she tore out the first 50 pages law chargCis coupled with a claim In order to save the cost of a J(^rnal in restraint of Interstate cbmmerce. Max Hart,' the plaintiff, was on the witness stand all day yesterday, his direct examination by Martin W. Littleton, the trial counsel for Hart, having concluded In the morning, with Maurice Goodman, Keith's trial attorney, taklpg up the cross- examination. Goodman Introduced a great many copies of "Variety" as exhibits, ask- ing Hart If he remembered readt|ig certain news stories concerning Shubert vaudeville in that rag. Some Hart remembered, many others he didn't, but what maKcs the Times Square Dally sore Is that Hart, as a witness in a Federal court and under oath, swore he never read any other theatrical trade paper than "Variety," (Hart Is overlooking something by passing up the only and "world's worst.") Morning Interesting The morning's proceedings were that interesting the announcement of the one o'clock recesa was a sur- prise to 'many, the hours having slid by easily. It was by far the peak of the trial as far as interest was concerned. » The Afternoon dragged a little. At the cfid of the day it was mutually agreed to ad- journ until Moh*ay to allow Judjge Augustus K. Hand to clear up eom^ other court details and give the counsel in this'caae a chance to re- cuperate fiom the nine days' trial grind sj far. K. F. Albee. for the third time, was a c.instant auditor yesterday. Hart's crosa-examlnation has not yet been completed and many con- sume all day Monday and possibly longer in view of Goodman's con- centrated efforts to bring fo.th the rea-'ons for Hart's dismissal, wit* Charle* H. Studin. the Orpheum counsel, yet t< cross-examine Hart on behalf of his client, and probably W. 8. Hart, tlie Proctor counsel, who up je now has participated but little In the actual trial, also taking Jenie Jacobs Consults Att'y Wlicn asked if her action for some more millions against the big time would be pressod In view of the Hart dismissal, Jenie Jacobs re- plied: "Oh, certainly. Mr. Little- ton (Miss Jacobs' counsel) In- formed me over the phone this afternoon that nothing In the Hart case has affected our suit. "They are going to appeal the Hart ease. I undersland.i and Mr. Littleton told me he is going riglit ahead with mine. "How did I do on the wit- ness stand?" asked Miss Ja- colo. "I didn't cry. did 17 But it was nil I could do to hold back the tears." or dljo^jcycd orjirs or «i»*«»i but a hand wiili the principal witness for the plalnfift's cause. In sequence. Littleton resumed the direct examination' with asking how much Hart has invested in pro- ductions. Il^'rt stated he was 61 years old (which caused many to wor.der at the plaintiff's appearance that hoUn' the arlua! ace) and con- tinued In answer to question that the av.'rag" numbers of per.suna In an act Is three; that an act booked by the Orpheum circuit at Siiy $400 only received a contract for $380 nnd aetuaJly lecwvtsd $200 for the week after anoih^r five per cent, was d(T(Uict'-il by fie iCxcchior Cul- lection AKoncy. Handwriting Expert At this point a handwriting ex- pert was recoynUed In the court- iiH.m bur n.)* oincinlly intrndiiced, although he may litive lltciircil when .Seii:il.>r J. lii'i'ry Wal'ers of <oiin.sr! Iced that a I ourt at „ _ for Keith's .Talced that a hether she-ha* figWeuWlth peeule t,»rt,l»^nt "•■»•'mpwiy nnrfH b<w.li< Mta leUgera ••<«. :otkil)ri ii :roducrti Before Goodman a,ctually com- menced the eiamination Hart again stepped aside for Miss Brown to quote some additional figures to those previously introduced Wednes- day up to 1920. The 1921 figures showed a loss for Hart of $9,047 for that year, whereas the preceding annum his het lnc6tne was $70,000. This was In line with his plea to prove how the taking away of hla business hurt him flnancially, ' The figures mentioned that Hart collected from the Excelsior CoHec- tiun Agency $3,542.28 and $1,643.13 from tho Vaudeville Collection Agon- . cy (due on former bookings before his discharge In October. 1920); In- come from artists In productions for personal services, $31,476.66; from Shubert vaudeville, $3,390.66, making a total gross Income of $39,862.86. Against this was charged $9,427 sal- aries, $4,768.11 split commissions, $3,689.10 office expenses. $7,500 loss In "Jim Jam Jems." a legttproduc- tion, and other items that brought the disbursements up' to $48,909.8B. which spelled a net loss for that year. Hart's 1922 total Income was IS3.- 028.29 and total outgo $44,290.17, or a net profit of $8,738.12. The Income is subdivided into $44,357,29 from fees for liroductioris and $8,671 .from Shubert vaudeville. The dlitgO in- cludes $11,898.26 salaries; $«,«30.38 in split commissions, $12,750 lost In "Burnum Was RIght't. and jpther charges for railroad fares, rent legal fees, etc. In 1923 Hart again lost on the year, his gross income being $48,479.80 and total disbursements $61,862.18, mak- ing a net loss of $3,182.82. The big- gest income total was $46,489.50 from legitimate shows. The outgo consists of $18,318 In Salaries. $6,149.37 split commissions, over $4,000 office ex- penses, $3,953 mlscelianeos, and rent and light. $3,740.64. also a $15,000 balance loss in "Barnum Was Right." It was brought out Hart Incorpo- rated his business In 1928 and drew $100 salary from the corporation; that liis ssiter, Mrs. Pincus, and lie each own a third Interest In the company. Under CroSs-Examination Hart then resumed the stand. It was explained that the theory of the plaintirr's case Is likened to a de- partment store. If the owner of the »hoe department loses monpy through being forced out of it and that he mokes money on his other depart- ments, it does not mean the profits on the other enterprises can be charged ngalnst losses of the shoe department. Hart's baslo claim is that he was deprived of a profitable vaudeville business through the big time'i* alleged dl«I:rimJnatlon, and that the fact he may or may not be making money from his thcatre- tioldlng interests, stocks and bonds, production casting, etc., does not vindicate his losses from the vaude- ville branch. That iif the basic claim for the damages. . At this point Judge Hand ad- dressed Littleton and said: "I don't get a favorable reaction toyOur po- Bltion of the 2'^ per cent." Littleton explained that the big time even deprived him of that percHmige. (Joodman's opening question to Hart was as to the wittwss' father .t name. It was Jacob Numkofsky; that Hart ch.mged liis name when in the chorus In ChiraKO around 1901; Ihit h" was a. blllpo.ftcr and advniico riKent befnrn he was an agent, and rcdtod Ills career, starting with Jack I.ovcy through Al Sutherland, up to tho Je.sse 1,. Lasky and U. A. Itolfe atllliallon, at which time Hart al.so .ns.sumid the bookings of the Wilmer anl Vincent theatres. Till--"" ficlH were broug! t cut: Til ii II III illd II >t know Wh.ll .Tfttttn^:- ll.jn I'. (;. Williams had with the K<:ih iiMi.i-; (h.it he saw him around, hiiwivir; tliat he doenn't know how the uuinbcr of a^'enls In 1920 com- i)arc3 with the lauiiber in 1908; tha. (•veryb.dy Ifii'ivv of his atl'intiutis tu the li'i;it fiild; that he sp'nt a»( niurh time In the I'nited Booklni; Olficps I Keitli s> h% was necessary ; that In- ^\A^ an oOl *»n ;Ue FutijnsnibiiUdiiij (C.irkrucJ <iU p»u*-Si**'»■»