Court of Gen. Sessions, N. Y. County, February, 1918. [Vol. 102.

The fourth ground for dismissal is that the indictment does not state facts constituting a violation of the Donnelly Act or any other agreement.

The evidence clearly establishes a contract or combination to affect the price of photo-engravings, and if that is a crime the indictment must be sustained. Whether or not the acts of the defendants were a violation of the law must be determined by a consideration of the third point, to wit, that photo-engraving is a process or art, the produce of which is non-merchantable, and is not an article or commodity in common use within the meaning of laws in restraint of trade.

It is claimed that photo-engraving calls for the highest degree of artistic skill, chemical knowledge and optical judgment; that men standing side by side, using the same chemicals, the same apparatus and the same means or process in manufacture would or could produce so totally different results as to make one a production of artistic skill and the other of worse than no value; that from the moment that the brass plate is first prepared for cutting by a chemical process until the copper plate is finally wrought, chemical and artistic skill and judgment are required; that the engraving thus produced is not a commodity, since it is of no value to any one but the individual who ordered it for his own“ special ” use, and that it is not intended to be bought and sold as merchandise, and hence cannot be regarded as an article or commodity in common use.

Such is the claim in behalf of the defendants, while those who are opposed to the motion claim that the process is one of ordinary manufacture and production requiring only such skill and judgment as are shown by the workers in every industry; that photo-engravings in very large numbers are constantly used in the Misc.] Court of Gen. Sessions, N. Y. County, February, 1918.

production of books, magazines and may be seen in the columns of the daily newspapers.

Under the circumstances, it was suggested by the parties that the court should be present at the preparation of a photo-engraving in the establishment of one of the defendants. It was there demonstrated that a photograph, proof or picture is sent to a photoengraver for reproduction. The glass plate is first prepared by a wet or dry process, according to the judgment of the craftsman who is to make the reproducing photograph. This plate is attached to a screen having ruled thereon lines of certain length, breadth and thickness, which has been scientifically prepared. It is from the use of this screen that the process derives its name of “ half-tone." The craftsman uses his individual discretion and judgment as to the character of plate required in order to bring out the tones of the objects reproduced, which may be described as high, middle and low tone, requiring also different length of time of exposure according to the lights and shadows and depth and variation of tone colors and shadows that may be upon the picture. After a satisfactory photograph has been completed the plate is developed. After the negative has been developed it is placed in a bath to free it from the plate and placed upon another glass plate; then a copper plate, whose surface has been highly polished and sensitized, is placed against it in a vacuum form and the process of photography is again brought into use. The copper plate is then developed and the image is burned in until the printed surface becomes enameled. The plate is then etched in an acid bath and prepared for the engraver, who, it is said, must possess high artistic judgment and ability.

When the plate is finished it is attached to a wooden block and prepared for use.

Court of Gen. Sessions, N. Y. County, February, 1918. (Vol. 102.

This brings us to a consideration of whether photoengraving thus produced is an article or commodity in common use within the purview of the statute.

In the Standard Dictionary we find that an article is“ a particular object or substance, a material thing or a class of things;" "a commodity' is an article of trade or convenience, a movable article of value, something that is bought and sold;" " commerce' is the exchange of goods, production or property of every kind; especially exchange on a large scale, as between states or nations; extended trade.

Commodity has been legally defined as a convenience, profit, benefit or advantage; but in referring to commerce it comprehends everything movable that is bought or sold, except animals. Rohlf v. Kasemeier, 140 Iowa, 182.

“ The productions of a country which become an article of sale, or in the language of Webster in his dictionary, ‘in commerce, including everything movable that is bought and sold, * * * unless perhaps animals may be excepted. The word includes all the movables which are the objects of commerce.'Best v. Bauder, 29 How. Pr. 489. See, also, Shuttleworth v. State, 35 Ala. 415; Queens Ins. Co. v. State, 86 Tex. 250, in which the court said that the word “ commodity” is ordinarily used in a commercial sense of everything movable and tangible that is ordinarily purchased which is the subject of barter and sale.

See, also, People v. Klaw, 55 Misc. Rep. 72. In this case the court construed the Donnelly Act and dismissed an indictment for conspiracy on the ground that plays and entertainments of the stage are not articles or commodities and that the business of leasing and controlling theatres and producing plays therein is not a trade within the meaning of the Donnelly Act.

Misc.] Court of Gen. Sessions, N. Y. County, February, 1918.

The word “ commodity" has two significations. In its most comprehensive sense it means convenience, accommodation, profit, benefit, advantage, interest, commodiousness. The word is ordinarily employed in the commercial sense of any movable and tangible thing that is produced or used as the subject of barter and sale. 6 Am. & Eng. Ency. of Law, 230, citing Shuttleworth v. State, 35 Ala. 417.

The business of a lithographer has in two cases been expressly held to be that of labor and services. Beck & Pauli Lithographing Co. v. Colorado Mill & El. Co., 52 Fed. Repr. 700; Central Lithographing & Eng. Co. v. Moore, 75 Wis. 170, 173.

In the former case the court says: “It only remains to determine whether the contracts in the case at bar are the ordinary contracts of merchants for the manufacture and sale of marketable commodities or contracts for labor, skill, and materials, and this is not a difficult task. A contract to manufacture and furnish articles for the especial, exclusive, and peculiar use of another, with special features which he requires, and which render them of value to him, but useless and unsalable to others, articles whose chief cost and value are derived from the labor and skill bestowed upon them, and not from the materials of which they are made, is a contract for work and labor, and not a contract of sale.

“The result is that these contracts were not for the sale and delivery * * * of marketable commodities. They were contracts for artistic skill and labor, and the materials on which they were to be bestowed in the manufacture of articles which were not salable to any one but the defendant when completed because impressed with special features useful only to it."

In Central Lithographing Company v. Moore the plaintiff had contracted to manufacture a large quanCourt of Gen. Sessions, N. Y. County, February, 1918. (Vol. 102.

tity of engravings and lithographs for a theatrical manager, with special features, useful to him only during a certain season, and they were completed and set aside in the rooms of the lithographer, and there burned before delivery to the manager. The court held that the contract was not one for the sale of personal property, but one for work, skill and materials, because it was not the materials, but the lithographer's work and skill, that gave the value to the finished advertisements, and was the actual subject matter of the contract, and because that work and skill, while it attached a different value to the finished articles for the special use of the defendant, made both the parties and the materials valueless for all other purposes.

These contracts may be likened to a job that a printer does for another, and according to his directions, when the work consists of hand bills or advertisements set up in attractive form, and adapted exclusively for such person, and useless to anyone else. Or an artist paints the likeness of another according to contract. It (the work) is of no use to the artist, or of any value to any one except to him whose likeness the picture represents. In all these cases it is too clear for argument that the transaction is not governed by the law of sales, but of work and labor.

In Rohlf v. Kasemeier, supra, the court said: “ If we were to adopt the view so strongly presented by appellant's counsel, it would be on the assumption that the associated words' merchandise 'and commodity' included the wages to be paid for labor, because labor is a sort of merchandise, subject to barter and sale as other goods."

But the court held that labor and services are not merchandise or commodity.

In State v. Duluth Board of Trade, 107 Minn. 506,

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