Articles on the Quarrel between Max Maretzek and the New York Herald

Max Maretzek and the Herald.

To the Editor of the New York Times:--

            The politicians have been engrossed for some days past by a fierce encounter between two political gladiators of no small celebrity.

            Messrs. Weed and Greeley have need their weapons with skill and vigor, and they will retire from the combat, if not wiser and better men, at least with their reputation for pugnacity considerably increased.

          But a more piquant contest now attracts the attention of the town, and provokes no little merriment. The German impressario [sic] of our Italian opera suddenly threw down his musical baton, and, pen to hand, made a furious onslaught on the New York Herald. Some admired the pluck, and others condemned the folly of the foolhardy Max, while not a few wondered at his ingratitude, for the Herald, of all our journals, has lavished on the Italian opera its steady and prodigal support. All, however, speculated, on the motives of the doughty Max. Was the harrowing tale he told us of his being bled to the extent of ‘twenty thousand dollars per annum’ the real cause of his fury, or was it, after all, only an ingenious device of an operatic Dulcamara to advertise an old opera troupe by getting up a rumpus with the Herald, in which he expected the New York press to join by printing long articles in their honor, thereby exonerating his pocket from the advertising expenses that always inaugurate a new season?

            Maretzek has all the cunning of his Jewish origin, sharpened by his familiarity with the coulisse. The sensible article that appeared in the Times of Saturday deepened my suspicions, and I resolved, to investigate the facts. If Max was really the victim he alleged, why then he was entitled to the sympathies of the musical, if not the humane; but if this was only a Barnum trick to draw a crowd by cries of ‘exactions’ from the Herald, why then Max could only expect the smile of contempt usually bestowed on the mountebanks.

            I therefore took the liberty and the trouble to visit the headquarters of the Herald, and here I discovered that every statement of the inventive Max was wholly unfounded, with the single exception of the proscenium box offered to the editor’s family, for which, however, the usual price was repeatedly tendered, but, through the policy or politeness of Max, as steadily declined. Everybody knows the editor of the Herald is a millionaire, and the Times says he is notoriously lavish in his expenditure. It is the rule in this establishment, it appears, that no employe [sic] shall accept the usual ‘courtesies to the press,’ in the way of complimentary seats in steamers or cars, or free lodgings in the hotels—everything is paid for by order. It is idle, therefore, to suppose that the editor of the Herald desires the gratuitous civilities of an opera manager, though they may through calculation be forced on him. If Maretzek has occasionally bestowed opera tickets on the attachés of the Herald, it was without knowledge of its editor, and with a view only to his own advantage. As to the accusation of blackmail, the editor of the Herald would be obliged, he said, if Maretzek would name the delinquent, if he can.

            It is admitted that application was made to Maretzek for the engagement of Mme. Van Zandt, an admirable artist, and a deserving woman; but, though the was [sic] reluctantly engaged for a short period, she was rarely allowed to sing, through some unmanly prejudice of the manager. The tissue of charges preferred against the Herald are pronounced by its editor to be mere fabrications, and only intended to enlist public feeling on behalf of a second hand opera troupe. In this case Maretzek’s story of losing ‘$20,000 per annum’ to secure the patronage of the Herald is simply bosh (pardon the expression), and justifies the supposition that he must have swallowed double his usual quantum of lager beer to circulate such a preposterous falsehood. The wholesome rebuke so gracefully administered by the Times will not likely be thrown away on Maretzek, and will serve as a warning to his tribe. It may be the custom in the Jewish quarter of his native town to abuse women, but in this Christian land there is not a man, high or low, who would not blush to insult a lady in order to vent his spite on her husband. A Subscriber.

            Operatic Discords—Max and the Press.

            Editorial comments of the Times.

            We publish what may be styled a semi-official reply to Manager Maretzek’s onset upon the Herald, made some days since. It comes avowedly from the ‘headquarters’ of the hostile camp, and substantiates on that authority the main points which we suggested a few days since would probably prove to be the facts of the case. There seems to be very little foundation, except in Manager Maretzek’s ingenious imagination, for supposing that he was either enjoying or suffering from a subvention of twenty thousand dollars a year at the hands of the Herald. He may congratulate himself on having that costly and uncomfortable delusion completely dispelled.

            Now we hope he will go to work and give us the best possible opera season which his long experience and large resources will enable him to produce. He has learned how to do without newspaper assistance; let him repudiate all subventions, repel all exactions, treat newspapers just as he does the rest of mankind, attend carefully to his own business and leave journalists to do the same. He may rely upon it that if he has good artists and produces good operas the public will find it out, and will go to hear them, no matter what the Herald or any other newspaper may say. Indeed, we may so far let him into one of the grand secrets of journalism as to assure him that no newspaper is likely very long to declare that to be bad which the public declares to be good. If it does it will have its labor for its pains. If he will avail himself of this hint Manager Max may have a good time of it. He has only to be virtuous and he will be quite sure of being happy.”

Comment: Originally published in The New York Times  - 8/31/65, p. 5.

“To the Editor of the Herald.

            Dear Sir.—Having repulsed your attack on the new artists engaged by me for the forthcoming season, you have taken a week to search for a new base of operations; and now, having intrenched [sic] yourself behind the walls of a ‘contemplated new opera house,’ you open your masked batteries, not daring to attack me in open field. You substitute the Emperor of Russia for the editor of The Herald, and the imperial intendant of musical matters in St. Petersburg for your humble servant.

            You inform the public that the Emperor of Russia has withdrawn his subvention from the manager of the opera at St. Petersburg, who, you say, is probably nothing more than ‘a German adventurer.’ This is a very pretty piece of news; it lacks, however, one great essential truth. The Emperor of Russia has not withdrawn his subvention from the opera of St. Petersburg, which will go on as before, nor is the impresario there a German or a Scotch adventurer, but a Prince of the Russian Empire, General in the Russian army, and a man of such power that he would probably, in a similar case, have sent you to Siberia (without much regret on the part of the public) for your insolence in prejudging persons whom you admit you have never heard.

            As to your paltry attempt to injure my business because I determined to carry on the opera without advice or assistance from the petticoat government of The Herald, I will in return do good for evil, and inform you that it is not St. Petersburg, but Moscow, where the opera, after a three years’ trial, is to be abandoned; not, however, for want of a subvention, but from the difficulty, even with the Emperor’s subvention, of finding, now-a-days good singers. After you have heard my opera company for next season, you will probably be obliged to confess that the business tact and musical knowledge of a New York opera manager can accomplish more than the subvention of the Emperor of Russia. Why will you not, then, help the Emperor of Russia out of his difficulty, by sending those surplus managers and singers under your paternal care to Moscow, instead of letting them run loose in the streets of New York?

            Your story about St. Petersburg being incorrect, the parallel you attempt to draw cannot apply to the present operatic situation in New York; but I am willing to give you the benefit of your fiction.

            I am, therefore, to understand that you withdraw your subvention from the New York opera! This is really a terrible blow for the manager! for the opera! for the public! and for the proprietors of the Academy!! As a matter of course the opera, without The Herald’s subvention, is a preposterous idea!!! As impossible to succeed in New York without The Herald as in St. Petersburg without the Emperor! These are the ideas which The Herald tries to disseminate. Let us now calmly investigate the items of The Herald’s subvention. They are as follows:

            1st. The Herald deigns to take a private proscenium box for 10 persons, which, at the rate of $25 per night for about 80 nights in the year, would bring to the manager. . . . . . .$2,000

            2d. To 10 of the best reserved seats reserved for “The Herald’s staff,” $2 per night—80 nights. . . . . . . 1,600

            3d. Extra seats and admissions for matinees, and for Brooklyn, &c., say. . . . . . .600

            4^th. Advertising and printing, at double that charged by any other establishment in New York, say $800 per week for about 25 weeks. . . . . . .7,500.

            5^th. For black mail to reporters, roving diplomats, &c.; for being forced to give employment to persons not wanted; for silk and velvet dresses borrowed from the theatrical wardrobe and not returned; for extra advertisements in The Play Bill, and other like superfluities. . . . . . .3,000.

            Total. . . . . . .$14,700

            These are only the direct contributions, or subventions, as The Herald more properly calls them. Add to this the indirect contributions in the shape of inferences from The Herald’s petticoat government, with orders that such and such artist shall be engaged, though utterly useless, and such other dismissed, though absolutely necessary; that Traviata should be given in preference to Robert le Diable, to the prejudice of the treasury; beside other vexatious demands of this character, and we shall find that The Herald’s subvention from the opera will not be less than $20,000 per annum.

            The Herald therefore costs the managers, directly and indirectly, more than the entire rent of the Academy of Music.

            Is it then astonishing that the Opera could not flourish when The Herald swallowed up double its earnings? Is it strange that all the other managers who bent their knees before the ‘Juno’ of the would-be-thunderer of Nassau St., have utterly failed? I shall, therefore, in future do without The Herald’s subvention, believing that one Prima Donna more and one Herald less will be more to the taste of the patrons of the Opera.

            Let me say a few words about ‘the contemplated new opera house.’ You know as much about this as you admit you know about the new artists engaged for next season; as much as you know about the St. Petersburg opera; and just as much as you usually know about things pertaining to art. It would be unjust to take advantage of an ignorant adversary. I will therefore inform you that the more you puff and herald ‘the contemplated new opera house’ the more, perhaps you are ‘grinding my own axe.’

            In conclusion, if you are still without information in reference to the new artists engaged for next season, and are desirous to know something of them, I should recommend you to pay 40 cents currency, and go, on their first appearance, to the amphitheatre of the Academy, and you will obtain all the information you require. Yours truly, Max Maretzek.

            Staten Island, Aug. 21.”

Provides same letter as AR: NYTr 09/02/65, p. 8, in German.

Provides same letter as AR: NYTr 09/02/65, p. 8.

To the Editor of The Herald,

            Dear Sir: Again ten days without hearing from you, and then only in a so-called semi-official communication through a decent channel! Why this necessity to create a diversion in your favor, and form an unnatural alliance? Why for ten days this busy confusion of the roving diplomat; this weaving of offensive and defensive treaties; this singular partisanship gained partly by concessions and partly by intimidation?

            All this formidable coalition for what? The mere subjugation of a poor single-handed opera manager! Is the boasted influence of The Herald not powerful enough to accomplish this easy task?

            Why this outcry of treason against the entire press, when I am only defending myself against the vulgar attack of a single paper? There never was and never can be any connection between The Herald and the respectable portion of the Press. To speak of my assault and onslaught on The Herald strikes me as being extremely ludicrous, and reminds me of the famous anecdote of the poacher, who complained that his landlord’s hares were in the habit of worrying his dog.

            Let me, however, be just to the roving diplomat. He is a fine, outspoken, secret enemy. There’s no concealment in his reticence. He imparts his confidence to the entire town. He threatens and boats of his threats. He is almost smart enough to write a good article for another paper. He is so gallant, and such a champion of the sex, that he was absolutely put in prison for 15 months for assaulting one with the offer of his hand. He is so conscientious that when he had a high diplomatic mission to China—it was to carry a letter there—he absolutely went as far as Paris without asking for his mileage! Why should I not esteem this useful gentleman! Is it not a service and a kindness of when and where he is going to do it? I have known many diplomats, but none have pleased me like the roving diplomat. He chuckles loud enough to be heard on the house tops.

            The conflict between operatic management and The Herald is an irrepressible one. It commenced long before I came to this country, and took its origin in the desire to meddle and the effort to make itself important. It has meddled and muddle ever since. I have borne my share of the burden and now throw it off. It is silly to say I ought to have done so before. In every conflict there must be a first shot. Apres vous, monsieur le Redacteur, s’il vous plait!

            But to the roving diplomat—whose communication I have been expecting since Monday (the day he mentioned diplomatically that it would appear,)—I have read this communication with awful discomfort. For instance, I find that he admits—diplomatically of course—the principle charge I made against The Herald, namely, the private box, and also that it interfered in the internal management of the opera by requesting the employment of pet artists. Presently, he will admit that The Herald was not wholly uninterested in the discharge of others, who were not such favorites at Washington Heights.

            These are the points—the main points—of my controversy with The Herald. The reference to blackmailing was only a retort for a stupid article on the subject of subventions. Still, as the roving diplomat is anxious to fight it out on the ground of public morality, I am content to accommodate him. He desires the name of a particular delinquent. I respond by naming the roving diplomat himself! Is he satisfied with this bare response, or will he have the particulars. I await, with impatience, a reply. Let there be no mistake on the subject. I refer to the diplomat of the slobby mouth—the chevalier of The Herald—who last year offered me his influence, perhaps with an eye to diamond sleeve-buttons, to heal that journal’s hostility toward Miss C. L. Kellogg.

            I have never regarded it as a tie of affection between the editor of The Herald and myself that we both happened to be of the same religion, nor do I accept it now as a reproach that I am of Jewish descent. Most of the Christians I have met with in this world were amenable to the same charge. Furthermore, there is nothing in the Constitution of the United States to prevent my being even a Jew. You will agree with me that we may both believe in a creed without doing much credit to it. I am not sure that the precepts of Christianity have been observed by you, Mr. Bennett. When cowhided and spat upon on the one side you have not meekly turned the other for equal chastisement. Do not I remember that once upon a time you took refuge, like a craven, behind the crinoline of a lady just as now you try to screen yourself. Were you the champion of the widow and the orphan when you hunted a helpless husband to the grave by the fear of persecution? Does your right hand know what your left hand does in the way of charity—or does anybody else’s hand know? You boast of your wealth, but it cannot buy you respect—not a proscenium box at the opera. But this you can do: give the cost of the proscenium box which you have occupied to the scandal of every opera habitue for three years to some charity—say half to Christian and half to a Jewish hospital. The small change, if any remain, can be handed to the Roving Diplomat, with the compliments of

            Max Maretzek.

            Staten Island, September 1.

–“THE OPERA.

The Libel Suits of Max Maretzek and the Sunday Press.

The Complaints and Answers and Special Pleadings.

&c. &c. &c.

the first suit.

Superior Court of the City of New York.

the complaint

            Max Maretzek against William Cauldwell and Horace P. Whitney.

            The complaint of the plaintiff against the defendant shows to this court that the plaintiff is a good, true, honest, just and faithful citizen of the State of New York, and as such has always conducted himself, and has been so reputed, accepted and esteemed among his neighbors and other good and worthy citizens of this State, to whom he was in anywise known, to be a person of good name, fame and credit; that he is and has been for more than fifteen years last past in business as a conductor or manager of a troupe or company of opera singers, musicians and performers, and in said business has been and has acquired a great reputation and credit, good name and fame, and has conducted his business at all times with credit, skill and respectability, and good faith towards the public and those who attended or were in the habit of frequenting the performances given by the said plaintiff and his said company.

            And the plaintiff further says that he has never committed or been guilty of the matters, or any of them, alleged or intended to be charged by the defendant in the libellous matter hereinafter set out.

            And the plaintiff further says he has for many years past—to wit, for fourteen years last past—at diverse times, leased, demised and hired, for the purpose of giving representations of operas, spectacles and other performances, by and with his said troupe and company, various public buildings in the city of New York, and other cities, among others, the building or opera house in the city of New York known as the Academy of Music, and has given such representations with credit and a good name, and to many numerous large and respectable audiences and persons, and with great gains and receipts of money therefor [sic]. And the plaintiff further says that the costs and expenses of said business is and was very great, and that his sole dependence for the carrying on of the same and for his livelihood, and that of his family, was and is in the profitable and successful result of said business. And the plaintiff further says his ability to perform his engagements under the lease and each demise, hiring or lease of said Academy of Music by him, was and is dependent on the success of the previous hiring or performances given therein.

            And the plaintiff further says that before the commencement of this action—to wit, on or about the 18th day of May, 1863—he leased and hired the said Academy of Music for the term of five months, and said term to be extended, if the performances given by the plaintiff should be successful and pay the expenses of the performances, and enable him to pay for the Academy and maintain himself and family.

            And the plaintiff shows, that for the purpose of carrying on his said business during the said term, and during such further terms as he might be able to carry on the same, and to give good and respectable performances of operas and other performances and spectacles connected with said business, he laid out and expended, and became, and was liable for a large sum of money—to wit, the sum of thirty thousand dollars and upwards, in and about the engaging and paying of numerous singers, performers, scenery, dresses and other necessaries in and about the getting up and performing of said operas and spectacles and the said Academy of Music and his business aforesaid.

            And the plaintiff says that the said defendants are publishers, editors and proprietors of a public newspaper, printed and published in the city of New York, known and called the Sunday Mercury, which said newspaper, as the defendants allege, ‘has the largest circulation of any Sunday newspaper in the country’—to wit, the United States, and that three editions thereof are issued and published by them.

            And the plaintiff further says he is informed and believes that one hundred thousand copies of said newspaper are printed, published, sold or circulated in and among the public.

            And the plaintiff further says that the said defendants, contriving and wickedly and maliciously intending to injure the plaintiff in his good name, fame and credit, and injure him as manager and conductor of the opera, as aforementioned, and to deprive him of all benefit of the Academy of Music and his lease and future leases thereof, and to injure and destroy his said business into public scandal, infamy and disgrace with and among all his neighbors and the public, and to prevent him from carrying on his said business, and to vex, harass, oppress, impoverish and wholly ruin him and his said business did falsely, wickedly, and maliciously, on the 11th day of October, 1863, at the city of New York, permit and publish and cause and procure to be printed and published in their said public newspaper, entitled the Sunday Mercury, of and concerning the plaintiff, and of and concerning his said business and the manner he conducted the same a certain false, scandalous, malicious and defamatory libel and article, containing, among other things, the false, scandalous, malicious, defamatory and libellous matter following, of and concerning the plaintiff, and of and concerning his business and the manner he conducted or carried on the same, heading the same matter with these words, ‘The Disgrace of the Opera’ (meaning the opera presented to the public and managed by the plaintiff)—via: ‘Yet the only apology for an opera presented to the public is such an exhibition as no respectable member of the fair sex could patronize without a sacrifice of both taste and modesty, and running the risk of coming in contact with the characters who now make it their rendezvous’ (meaning thereby that the opera and performers at the Academy of Music aforesaid, conducted, managed and presented to the public by the plaintiff, were such that no respectable female or lady could attend without disgrace, and that by the management of the plaintiff, if such female or lady did attend at such opera of the plaintiff, she would come in contact or associate for the time with persons of improper or bad character, and that such persons of bad and improper character made the said opera of the plaintiff their rendezvous or place of meeting).

            And for another and separate cause of action against the said defendants, the plaintiff shows that on the 18^th day of October, 1863, the defendants falsely, wickedly, maliciously, wrongfully and unjustly printed and published, or caused or procured to be printed and published in their said newspaper, a certain other false, scandalous, malicious and defamatory article and libel of and concerning the plaintiff, and of and concerning his said business, heeding the said article or matter ‘The Academy of Music under a Cloud. Sin in High Places’ (meaning thereby that the opera of the plaintiff and his business was a failure and shunned by the public, and also that crime or some sinful matters were carried on at the said opera), via:--‘All these deficiencies were discovered last season by the public, yet still the management might have drawn fair houses, as to go to the opera is fashionable, and that consideration covers a multitude of sins in our so called best circles, but whispers began to circulate that the Academy of Music was hardly the place for modest and respectable women. It was said that to fill up the house, dead head tickets had been furnished to people whom no decent citizen could wish to see sit beside his wife or daughter” (meaning thereby that the opera of the plaintiff was not a fit or reputable place for reputable people, particularly decent and reputable women, and that the plaintiff had introduced bad and disreputable people into the said Academy of Music at the performances by dead head or free admissions to fill up the house); ‘and certain it is that the scarlet women have blazed forth in all their glory and shame from parquet, dress circle and box’ (meaning that by the management of the plaintiff, bad or disreputable women and strumpets showed themselves in their full characters, seeking publicly in the various conspicuous places in the said Academy of Music during the performance of the opera managed by the plaintiff, ‘the lobbies have become infested with representatives from the worst of the city gambling halls, and owners of pocketbooks and watches are compelled to keep a bright look out for their valuables. One of the most conspicuous patrons of the present opera, is a Tombe lawyer, known to the public as the husband of a notorious courtezan [sic], lately deceased. This person nightly occupies a position in the dress circle, in full view of the whole house, with female companions after his kind’ (meaning by the aforesaid matter that by the management of the plaintiff, and with his knowledge or connivance, gamblers, pick-pockets, notorious strumpets, and bad characters nightly frequented the performances of the said opera of the plaintiff, and the lobbies and dress circle, and the most conspicuous places therein). ‘But what particularly incensed the decent patrons of the opera, was the report that one of the female artistes, who was given a prominent place on the bills was the mistress of a male member of the troupe—a woman whose private character was such, that it was an insult to every virtuous woman in the house to allow her on the stage’ (uncaning thereby the plaintiff admitted and allowed a woman on the stage of the said opera, of a character so bad as to insult the audience, and that the decent persons of the respectable public who were in the habit of frequenting the opera, were incensed thereat). ‘Whether this story was true or not it had its effects upon the receipts of the treasury’ (meaning thereby that the said statement lessened the sale of tickets of admittance or the income of the plaintiff from his said business, and that his business was thereby a failure). ‘The old opera goers are anything but pleased, and this is the last season Maretzek’ (meaning the plaintiff) ‘will be given a lease of the house.’ (Intending the public to believe that so bad had been the conduct and management of the plaintiff in respect to the matters above set out in said libel, that after this season, to wit, the season of 1863, the plaintiff would not have nor could obtain from the proprietors or owners thereof, and further or any lease at any time of the said Academy of Music).

            And the plaintiff shows, in his character as a man and as manager, conductor and lessee aforesaid, and in his business, and with his opera company and the public, and otherwise as a good citizen, he has been greatly injured and damaged by the said libels so printed and published by the defendants.

            Wherefore he demands judgment against the defendants for the sum of twenty thousand dollars damages besides the costs of this action.

Judah & Dickinson, Plaintiff’s Attourneys.

City and Country of New York:--

            Max Mareszek [sic], the plaintiff, being sworn, he says:--The above complaint is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.

Max Maretzek

            Sworn before me this 30th day of October, 1863.

W. H. Risley, Notary Public,

City and County of New York.

The Answer.

superior court of the city of new york.

Maretzek against William Cauldwell and Horace P. Whitney – The defendants appearing by A. B. Tappen, their attorney, for answer to the complaint say:--

              First.—They deny any knowledge or information sufficient to form a belief whether or no [sic] the allegations of the complaint, from folio one to folio eleven are true.

          And the defendants further deny, that they, in printing and publishing the printed matter, firstly alleged to be libelious in the complaint firstly set forth, did contrive or wickedly or maliciously or otherwise intend to injure, either the plaintiff or his business in any and in every of the respects set forth in said complaint concerning said plaintiff and his business, or either, or in any manner contrive or [illeg] in and about the same premises, any or all of the doings and acts alleged against the defendants, at folios thirteen and fourteen of the complaint; and they deny that the plaintiff has been in any wise injured or damaged by reason of anything in said complaint contained.

          And the defendants further deny that they, in printing and publishing the printed matter secondly alleged to be libellous, and in the complaint secondly set forth, did contrive, or wickedly or maliciously, or otherwise intend to injure either the plaintiff or his business in any and in every of the respects set forth in said complaint, concerning said plaintiff and his business, or either or in any manner contrive or intend in and about the said premises, any or all of the doings and acts alleged against these defendants at folios seventeen and eighteen of the complaint; and they deny that the plaintiff [illeg.] been in anywise injured or damaged by reason of anything in said complaint contained.

          Second.—And these defendants, reiterating their denials in manner and form aforesaid, and for a separate and further defence, aver that each and every of the said published allegations set up in the first cause of action in the complaint was then and there and are true in all particulars, and in substance and in effect, because these defendants say, that before, and at the time of the happening of the events in these alleged libellous publication, as well as [illeg.] set forth, it was the fact and the facts were as follows, to wit: That the exhibition of the opera, under management of the plaintiff, was such a one as no respectable member of the fair sex could patronize without a sacrifice to both taste and modesty, and without running the risk of coming in contact with the characters who, at the times referred to in complaint, made the Opera under plaintiff’s management their rendezvous; and that the said events were a disgrace to the said opera—and these defendants do justify the same, and the facts aforesaid set forth as true.

          Third.—And the defendants, reiterating their denials in manner and form aforesaid, for a separate and further defence, aver that each and every of the said published allegations set up in the second cause of action in the complaint was then and there, and are, true in all particulars; and that they are true in substance and effect, because these defendants say that before and at the time of the happening of the events in the said alleged libellous publication, as well as hereinafter set forth, it was the fact, and the facts were at the time mentioned in the said complaint, as follows to wit: That the Academy of Music was under a cloud; sin in high places, and that all these deficiencies had been discovered last season by the public, and that the said Academy of Music was not successful under management of the plaintiff, as a place of public entertainment pecunarily [sic]; that to go to the opera is and was fashionable, and that this consideration does cover a multitude of sins, in our so-called best circles, and that whispers did begin to circulate that the Academy of Music was hardly the place for modest and respectable women; and that it was said that, to fill the house, dead-head or free tickets had been furnished to people whom no decent citizen could wish to see sit beside his wife or daughter, and that scarlet women blazed forth, in all their glory and shame, from parquet, dress circle, and box of said Academy of Music, and that the lobbies thereof became infested with representatives from the worst of the city gambling hells [sic], and that owners of pocketbooks and watches were compelled to keep a bright lookout for their valuables, and that decent patrons of the opera were incensed by the report that one of the female artistes, who was given a prominent place in the bills, was the mistress of a male member of the troupe of said plaintiff, and that her private character was such that it was an insult to every virtuous woman in the house to allow her on stage; and that the old frequenters of the Academy of Music on opera nights were dipleased with these things, and that it was intended that said plaintiff should not have a further lease of the premises; and the defendants do justify the same, and the facts aforesaid set forth, as true.

          Fourth.—And, for a further and separate defence, reiterating all the previous denials, in manner and form as they have been aforesaid pleaded, the defendant, for their answering, say they plead and will insist upon all the matters in their foregoing second case of separate defence, and do not again set up the same, as mitigating circumstances against any damages claimed of these defendants.

          Fifth—And, for a further and separate defence, reiterating all the previous denials in manner and form as they have been aforesaid pleaded, these defendants, further answering, say that they plead and will insist upon all the matters in the foregoing third cause of the separate defence, and do again set up the same, as mitigating circumstances against any damages claimed of these defendants.

          Sixth.—And these defendants, reiterating their previous denials in manner and form as aforesaid pleaded, do, as a further and separate defence, aver that they printed and published the said facts complained of in course of action number one, in the course of their business as public journalists, and they had been, in their capacity of the editors referred to in the complaint, credibly, and from motives of public policy, informed thereof, and that they believed the same to be true; and that, in their said capacities as public journalists, they had been requested by the plaintiff to speak of his opera for the best advantage of the public, and that they believed it was for the best advantage of the public, as well as of the plaintiff, to know and be advised of these aforesaid matters, and that they had, in doing as in this cause of defence mentioned, no malice towards the plaintiff, nor ill will towards him, nor intent to injure him or his business, and that the said matters were and are fair and legitimate matters of public news and items of particular general interest to the reading public, and were fair and candid comments on a place of public amusement, and were published for the purpose of disseminating among the persons, subscribers to their said newspaper, information which these defendants, as aforesaid, believed to be true, and such as, if true, ought to be published for the information aforesaid,  and they therefore plead and will insist upon the foregoing averments in mitigation of damages.

          Seventh.—And these defendants, reiterating their previous denials, in manner and form as aforesaid pleaded, do, as a further and separate defence, aver that they printed and published the said facts complained of in cause of action number two, in the course of their business as public journalists, and that they had been in their capacity as the editors referred to in the complaint, credibly and from motives of public policy informed thereof, and that they believe the same to be true, and that in their said capacities as public journalists they had been requested by the plaintiff to speak of his opera for the best advantage of the public, and that they believe it was for the best advantage of the public as well as of the plaintiff to know and be advised of these aforesaid matters; and that they had in doing, as in the cause of defence mentioned, no malice towards the plaintiff, no ill-will toward him, nor intent to injure him or his business, and that the said matters were and are fair and legitimate matter of public news and items of particular and general interest to the reading public, and were fair and candid comments on a place of public amusement, and were published for the purpose of disseminating among the persons, subscribers to their said newspaper, information which these defendants as aforesaid believe to be true, and such, if true, ought to be so published for the information aforesaid, and they therefore plead, and will insist upon the foregoing averments in mitigation of damages.

          Eighth. [Dash omitted here.] And reiterating their previous denials in manner and form as aforesaid, pleaded as a further cause of mitigation of damages, these defendants aver that the plaintiff by a printed book heretofore, as they are informed and believe, written by him, and for him published within the past fifteen years, and entitled ‘Crotchets and Quavers,’ has admitted to the contrary of that which as contained in folios one, two, three and four of the complaint, and has therein and to the contrary aforesaid, and within the time aforesaid, substantially confessed that he was a charlatan in opera management, and has therein and to the contrary aforesaid, and within the time aforesaid, substantially boasted of his ability and success in humbugging the opera public.

          Ninth.—And these defendants again reiterating their previous denials in manner and form, as the same have been hereinbefore pleaded as a further and separate cause of defence, aver both by way of justifying as true the allegations of the alleged libellous publications, and by way of mitigation of damages as true, that under the citizenship of the plaintiff, the opera, as the times and mentioned to the complaint, was disgraced by an attendance at the operatic performances under plaintiff’s lesseeship, of bad and improper characters of male sex, who were pickpockets, but whose names and residences are to defendants now unknown, and of female sex, to wit, kept mistresses, courtezans, and boarders in houses of assignation, and houses of prostitution, but whose names and residences are to defendants now unknown, attended by their male keepers, friends and admirers, but whose names and residences are to defendants now unknown, which several described persons were in some instances brought there by and under cards of free admission, furnished by plaintiff’s regular agents, and that some of the stockholders and subscribers of the Academy of Music complained to those defendants of said things, and that such foregoing matters were publicly canvassed by the general public.

           Wherefore, these defendants demand judgment for the dismissal of the complaint herein, and for their costs and disbarsements [sic] of action.

A. E. Tappen, Defendant’s Attorney.

            City and Country of New York, s.s.:

            William Cauldwell being duly sworn, says—That he is one of the defendants in the above entitled action; that the foregoing answer is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters, he believes it to be true.

William Cauldwell.

                        Sworn before me, this 3d day of February, 1864, J. R. Cumac, Notary Public.

motion to amend answer.

supereior court of the city of new york.

            Max Maretzek against William Cauldwell and Horace P. Whitney.

          The plaintiff requires the defendants to make more definite and certain their answers, so that the precise nature of the charge or defence may be made apparent, in the following particulars, to wit:--

          In the matter of the fourth defence, referring to the matters set up in the second defence, commen[illeg.] on the eighth line of folio five, of the answer in mitigation of damages, as follows – ‘That the exhibition of the opera under the management of the plaintiff was such a one as no respectable member of the fair sex could patronize, without a sacrifice of both taste and modesty;’ that the defendant set forth in what manner, nature or respect the said exhibition was such a one as alleged. ‘And [but no end quote given] without running the risk of coming in contact with characters who (at the same time referred to in the complaint) made the opera under the plaintiff’s management their rendezvous, that the defendants set out what characters they refer to, (if persons) that they set outline the names, or some description of the same, so that their calling or residence may be learned by the plaintiff; and that the defendants set out distinctly the times, giving the day and dates of the events referred to in said fourth defence, and also that, in the fifth separate defence referring in mitigation of damages to the third separate defence of the said defendants, they set forth what deficiency they mean or intend in second line of folio eight to have been discovered, and from, and by whom whispers were circulated, as what date, time and place the same were so circulated, and in what manner, as is alleged in fourth line of folio eight, that the Academy of Music was hardly the place for modest and respectable women; and that they set out by whom, and at what time, date and place it was said ‘that to fill the house deadhead or free tickets had been furnished so people whom no decent citizen could wish to sit besides his wife or daughter, and that scarlet women blazed forth in all their glory and shame from parquet, dress circle and box in said Academy, and that the lobbies thereof became infested with representatives of the worst of the city gambling hells [sic], and that owners of pocketbooks and watches were compelled to keep a bright lookout for their valuables, and that the decent patrons of the opera were incensed by the report; that one of the female artistes who was given a prominent place in the bills was the mistress of a male member of the troupe of said plaintiff, and that her private character was such that it was an insult to every virtuous woman in the house to allow her on the stage, and that the [illeg.] frequenters of the Academy of Music on opera nights were displeased with these things, and that it was intended that said plaintiff should not have a further lease of the said Academy.’ And that the defendants set out to whom, or what people, naming them, or giving some descriptions that they may be identified, and at what times, date and place deadhead or free tickets had been furnished, whom no decent citizen could wish to see sit beside his wife or daughter, and also what scarlet women, giving their names or such descriptions of them as may be sufficient to discover the identity of the said persons blazed forth, in all their glory and shame, from parquet, dress circle and box of said Academy, and that they setforth [sic] the times and dates when the same was, and that they set out what persons, setting forth their names, or such descriptions of them as may be sufficient to discover the identity of the same, who were the representatives of the worst class of gambling hells, who infested the lobbies of said Academy, and give the times and dates of the times so referred to, and that they set forth the persons and their names, or give such description as may be sufficient to identity them who were the owners of pocketbooks and watches who were compelled to keep a bright lookout for the valuables, and the times and dates referred to; and that they name, or will give [illeg.] description as will be sufficient to identify them, of the decent patrons who were incensed by the reports of reference to the female artiste above alluded to in folio [illeg…] manner; and that they name the male member of said troupe, and the said artist so referred to. And that they further set forth what frequenters of the opera and Academy, giving their and each of their names, or descriptions to identify them, as have been displeased, as is set out in folio eleven of the said answer; and that the said defendants set out at what page or pages, or part of the book, and what master or words, referred to in their eighth defence, in mitigation of damages, the plaintiff substantially confessed that he was a charlatan in opera management, and also, at what page or pages, or part or parts of said book, he substantially boasted of his ability and success in humbugging the opera public, and admitted to the authority of folios one, two, three and four of the complaint.

 

                        And the plaintiff hereby requires the said defendants to strike out as irrelevant and redundant the sixth, seventh and ninth matters of defences set up or pleaded and averred, and also the part of the eighth defence above referred to, in mitigation of damages; and in case any or either of them be not stricken out and withdrawn, that the said defendants make more definite and certain by whom, giving the names of such persons, or such descriptions as will be sufficient to identify the same, and each of them they were credibly, and from motives of public policy informed of the matters alleged, or intended so to be, in the sixth and seventh separate defence of the said defendants, and the times and places and manner or such information; and, further, that they set out what regular agents, giving their names and descriptions, so as to identify them, of the plaintiff, alluded to by and said defendants, as furnishing cards of free admission to the persons mentioned, or intended so to be, in the ninth separate defence of the defendants, and the times of the furnishing thereof, and that they set out what stockholders and subscribers of the Academy of Music, giving their names or descriptions, so as to identify them, and each of them, who complained, and the times they so complained, to the defendants, as alleged in the ninth separate defence of the defendants, in folio twenty-three.

          And you will please take notice that on the 20th day of Feburary, at ten A. M. of that day, or as soon thereafter as counsel can be heard, we shall move this court, at special term, at chambers, at the City Hall of the city of New York, for an order that the defendants make their said answer more definite and certain in the matters and particulars above set forth as indefinite and uncertain, and that the matters above set out in the sixth, seventh, eighth and ninth matters in defence as irrelevant, redundant and immaterial, be stricken out or made definite and certain, as is above particularized, with the costs of the motion.

                        Dated Feb. 10 1864

                                                Judah & Dickinson, Plaintiff’s Attorney

                        To A.B. Tappen, Esq, Defendants’ Attorneys.

the plaintiff’s demurrers.

superior court of the city of new york.

          Max Maretzek against William Caudwell and Horace P. Whitney—Demurrer.

          The plaintiff demurs to the first defence of the defendants, as not sufficient in law.

          1. It endeavors to raise an immaterial issue in the denial or controverting of the allegations of the complaint, from folio one to folio eleven.

            And also in endeavoring to put in issue the intent of the defendants in printing and publishing the libels first in the complaint set out, and also the intent of the defendants in the matters alleged at folios thirteen and fourteen of the complaint, and also the intent of the defendants in publishing and printing the libel second in the complaint set out, and also the intent of the defendant as to the matters alleged at folios seventeen and eighteen of the complaint.

            2. That the matter of the said first answer is not legally pleaded, and constitutes no defence to the said libels, or either of them; nor is a justification of said libels, or either of them, nor is an answer to the complaint, or any one or either of the causes of action in the said complaint set forth.

            3d. That the matter attempted to be set up in defence is not issuable and is immaterial.

            4th. That said answer does not establish or show facts, or aver the truth of said libels.

            5th. That said answer is not as broad as the charge.

            6th. That the traverse of motives and intents is not a sufficient traverse.

            7th. That the answer of the defendants that the plaintiff was not damnified, is vicious, impertinent, and no issue, or immaterial one.

            8th. That the answer in the matter thereof is double, and the separate defences are pleaded, so that no correct issue can be had. (This demurrer withdrawn.)

            Second.—The plaintiff demurs to the second separate deference of the defendants, and says the same is not a sufficient answer in law to the said causes of action, which it attempts or pretends to answer.

            1st. The matter of said defence, as pleaded, is general, and not precise, nor is it issuable.

            2d. The matter of defence does not answer the first cause or action set forth in the complaint.

            3d. The said second defence is no answer, nor does it amount to the justification it attempts or pretends to set up.

            4th. The matters set up as the cause of the defendants’ allegations of the truth of the libels first charged in the complaint are not facts, or matters which are legally pleaded, and do not as pleaded constitute either a defence or a justification of the libel.

            5th. That said answer does not establish or show facts, or aver the truth of said libels.

            6th. That said answer is not as broad as the charge.

            7th. That the traverse of motives and intent is not a sufficient traverse.

            8th. That the answer of the defendants, that the plaintiff was not damnified, is vicious, impertinent, and an immaterial or no issue.

            9. That the answer in the matter thereof is double, and the separate defences are pleaded so that no correct issue can be had.

            Third—The plaintiff demurs to the third separate defence of the said defendants, and says the same is not a sufficient answer in law of action which it attempts or pretends to answer.

          1. The matter of said defence is pleaded generally, and not specifically, and is not issuable.

          2. The matter of said defence does not answer the second cause of action set out in complaint.

          3. The said third defence is no answer, nor does it amount to the justification it attempts or pretends to set up.

          4. That the matters set up in the cause of the defendants’ allegations of the truth of the libels secondly charged in the complaint are not facts, or matters which are legally pleaded, and do not as pleaded constitute either a defence or justification of the libels.

          5. That said answer does not establish or show facts, or aver the truth of said libels.

          6. That said answer is not as broad as the charge.

          7. That the traverse of motives and intents is not sufficient traverse.

          8. That the answer of the defendants, that the plaintiff was not damnified, is vicious, impertinent and an immaterial or no issue.

           9. That the answer in the matter thereof is double, and the separate defences are pleaded so that no correct issue can be had.

          Wherefore, for want of a sufficient answer in this behalf, the plaintiff prays judgment, &c.

Judah & Dickinson, attorneys for plaintiff.

the demurrers overruled—order for ameniment of answer.

new york superior court.

Special Term, April 30, 1864.

Present—Hon. A. L. Robertson, Chief Justice.

          Max Maretzek against William Cauldwell and another.—The demurrers to the defendants’ first, second and third defences or allegations of mitigating circumstances in their answer, and also the motion to strike out or make more definite and certain the other defences set up in the answer of the defendants in this case, coming on to be heard, and after reading and filing notice of motion, &c., and after learning S. B. H. Judah, for the plaintiff, in support of the demurrers and the motion, and A. O. Hall in opposition thereto, and it appearing that no judgment can be given on the demurrers, as they raise an immaterial issue. It is ordered for that reason that they be overruled, with liberty to the plaintiff to withdraw them, and with liberty to move to make more definite and certain the second and third defences, in the answer of the defendants if he so desire, and it is further ordered that the motion to make more definite and certain parts of the fourth and fifth, sixth, seventh and eighth defences in the said answer, or to strike out as irrelevant and redundant the sixth and seventh and part of the eight defences and answers of the defendants be [illeg…], and that as to the matters of the ninth defence in the said answer the defendants have liberty to withdraw the same, or else make the same more definite and certain in the following particulars, to wit, that they set out what regular agents, giving their names and descriptions, so as to identify them, of the plaintiff alluded to by the defendants, as furnishing cards of free admission to the persons mentioned or intended so to be in the [illeg.] ninth separate defences, in the said answer of the defendants, and the times they so furnished the said free admissions, and also that the defendants set out what stockholders and subscribers of the Academy of Music, giving their names or descriptions of them, and each of them, as may serve to identify them, and each of them who complained, and the times they so complained to the defendants, as alleged in the ninth separate defence, in the said answer of the defendants, in folio 23 of said answer, and that the said defendants, unless withdrawing the same as aforesaid, make the said ninth separate defence in the answer more definite and certain in the said particulars, and that defendants make such election, and take each action within ten days from service of this order, and that they serve notice of such election by that time, and that no costs be allowed to either party.

(A copy)

                                                                        R. D. Livingston, Clerk.

notice of appeal.

new york superior court.

                        Max Maretzek against William Cauldwell and Horace P. Whitney.

          Take notice that the plaintiff appears to the General Term of this Court, from the following portions of the order made at Special Term, on the 30th April, 1864, by the Hon. A. L. Robertson, Chief Justice, to wit, that part of said order which overrules the demurrers of the plaintiff, to the second and third defences or answers of the defendants, and also that part of said order which denies the motion to make more definite and certain, parts of the fourth, fifth, sixth, seventh, and eighth defences of the answer of the defendants, as set out in the notice of motion at Special Term, and also that part of said order, which denies the motion to strike out as irrelevant and redundant, the sixth and seventh, and part of the eighth defences, and any answers of the defendants as specified in the notice of motion before the Special Term. Yours, &C.,

                                                Judah & Dickinson, Attorneys for Plaintiff.

To A. H. Tappan, Esq, Attorney for Defendants.

            R. D. Livingston, Clerk of Superior Court.

            Dated May 19, 1864.

the points in dispute before justice robinson –

the decision of the court.

new york supreme court—special term, april, 1864.

            Max Maretzek against William Cauldwell et al.—Robertson, Justice—The first statement in the answer as a defence is not demurrable, because it merely takes issue on allegations in the complaint. (Code, sec. 153, Smith vs. Creening, S Sandf. R., S. C., 702.) If they are immaterial, the only remedy for any prejudice arising therefrom to the plaintiff, if they stood alone, would be to move for judgment, and if they seriously encumbered the record to strike them out under section 160 of the Code. Whether he would be successful in the latter motion may be doubted. (King vs. Utica Ins. Co., 6 Ilow. R, 435.)

          The only question under the demurrer to the second and third defences is, whether the charges in the defamatory publication complained of are so specific that an averment of their truth is sufficient as against a demurrer. Averments, in an answer of specific facts are necessary, when the accusation is general of stealing, dishonesty and the like. (Anon, S. How. P. Rep, 405, Fry vs. Bennett, S Sandf. R, 54.) But the charge in the publications in question of the unfitness of the plaintiff’s exhibitions for the resort of respectable persons, as accompanied by specific charges of of [sic] persons of specified immoral and illegal pursuits and occupations by the plaintiff’s permission and encouragement which is sufficient to make similar averments in a defence a good pleading as against a demurrer (Van Wyck vs. Guthrie, 4 Duer R., 268; S. C. 17 N. Y R., 196, sub non. Van Wyck vs. Aspinwall.) If the plaintiff wishes further information, the Code (section 160) furnishes ample remedy for any defect in the definiteness and certainty of the answer. The demurrer must, therefore, be overruled.

          The motion, also, to strike out the sixth, seventh and ninth defences as redundant or irrelevant must be denied, as they allege new matter, and are not so verbose or repetitious in their statement as to subject them to that objection.

          The motion to render more definite and certain the fourth, fifth, sixth, seventh and eighth defences raises the question how far mitigating circumstances set up in an answer in an action for a libel in connection with a defence of the truth of the publication under the Code (section 165) constitute a partial defence to the section so as to require to be pleaded. If allegations of mitigating circumstances in an answer be a mere notice, it would not come within the 160^th section of the Code, which only requires a pleading to be made definite and certain, where the precise nature of the defence is not apparent.

          In the case of Newman vs. Otto et al., in this court (4 Sandf, S. C. Rep., 669), it was held by Judge Duer that such allegations operated as a mere notice, and were not a defence; because, if pleaded alone they might be struck out as frivolous.

          In Graham vs. Stone, 6 How., P. Rep., 19, and Brown vs. Orvis, [illeg.], 376, both cases in the Court of Appeals, Justices Johnson and Harris held separately and respectively that no facts could be set up in an answering mitigation of damages, except when accompanied by an averment of the truth of the charge. The do[illeg] so laid down seems to have been disapproved of by Justices Allen and Seldon in a subsequent case in the Court of Appeals. (Bush vs. Prosser, 11 N. Y. R., 347). The question of its soundness, however, did not fairly arise, nor was its repudiation involved in or necessary to the decision of that case. The sole question in it was whether evidence offered on the trial of bad conduct on the part of the plaintiff, similar to that of which the defendant accused him, was admissible. There was no justification of the truth of the charge in the case, and although the defendant had set out in his answer the facts, of which he offered the evidence on the trial, it was not necessary to hold that they must be pleaded in order to warrant its admission. No objection could have arisen on that scene; for whether those allegations were a mere notice or formed a pleading, the evidence was equally admissible under either theory Justice Allen seems to have assumed as unquestionable, that anything given in evidence to reduce damages, either in an action of tort or contract, was a defence within the meaning of the Code (160) which shows as many defences to be set up as the defendant may have. He takes no notice of any distinction in that respect between torts and contracts, so admirably pointed out by Judge Duer, in Newton vs. Otto (ubo sup,) which is, that a partial defence in an action on a contract necessarily reduces the damages, debt, or sum claimed, while in one for tort the effect of mitigating circumstances is uncertain. The jury may give the same damages, whether the circumstances offered in reduction are proved to have occurred or not. The same cause of action remains, whether the damages arising from it are aggravated or mitigated. In the former case, no issue could be taken on the matter of aggravation (Steph. On Plead, 24[illeg]), the reason is equally good why it should not be on matters in diminution. Hence, while part [illeg] defences in an action on a contract must be pleaded, ([illeg.] vs. Ball, 16 New York Rep, 297; Houghton vs. Townsend, S How Rep, 441…), the whole current of authorities are against the right of duty to set up circumstances in mitigation, unless in an action for tort, except for a libel or slander where the charge is justified. [More cases listed here.] If such circumstances constituted the whole answer, no judgment within the meaning of the Code could be given on an issue formed by a reply, because it could not be the final determination of the rights of the parties (243) without an assessment of damages, and there is nothing in the Code to indicate that it was designed to deprive the defendant of the formerly existing right of reducing the damages on an assessment by evidence in mitigation. The very section (60) which provides for the admission of such circumstances, notwithstanding the publication is justified and there is a failure to establish such justification, accompanies the permission to a defendant to avail himself of that provision by requiring the circumstances to be set out in the answer with the justification, but only in reduction of damages. If the framers of the Code had considered circumstance in mitigation to be a defence and an answer to a cause of action within the meaning of the one hundred and fiftieth section, there would have been no necessity to require a defendant to set up such circumstance, but simply to have said that setting them up as a defence with a justification should not deprive the defendant of the right or proving them whatever, because of the justification. But the one hundred and sixty fifth section contains two provisions; first, for alleging such circumstances in the answers along with a defence of truth, and secondly, of allowing evidence of them when so alleged, not withstanding such defence. The injustice of the former rule, as to allowing matters in mitigation before a sheriff’s [illeg.] is not so apparent as to favor such an interpretation. I am compelled, therefore, to follow Judge Duer’s opinion already alluded to, sustained as it is by its own reasons, and the opinion of Justice Johnson and Harr’s already referred to (Graham vs. Stone, and Brown vs. Harris), in place of the views of Justices Allen and Seldon in the case also before referred to (Bush vs. Posser), which as they were not necessary to the decision of the case, I may be excused as looking upon at chiter dicta. The motion to make definite and certain the statements in the answer of circumstances in reduction of damages must therefore be denied. They could not be struck out as frivolous, because they accompany a justification of the publication complained of, which is permitted by the Code (160).

 

I think the ninth defence sufficiently definite and certain as to the names of the sharpers of both sexes and persons of improper character who frequented the plaintiff’s exhibitions by the permission of his agents, because the defendants state such names to be unknown; but not so as to the agents of the plaintiff alleged to have furnished free tickets of admission to such improper persons, because he is entitled to be prepared to prove their want or excess of authority. So also as to the subscribers and stockholders who have complained to the defendants, whose names it must be presumed they know if they know them to be such subscribers or stockholders. In those respects the motion must be granted as to the names or other description of such agents and stockholders, but denied as to the rest.

          No judgment can be given on the demurrers, as they merely raise an immaterial issue of law, but an order may be overruling them for that reason, and the motion must be denied except in the matter before stated. No costs can be allowed to either party on the demurrers and motion; and there being no judgment, there is no need of giving leave to amend, but the plaintiff may withdraw his demurrer if the finds it necessary.

THE SECOND SUIT.

Superior Court of the City of New York.

the complaint.

                        City and County of New York, s.s.:

            Max Maretzek against William Cauldwell and Horace P. Whitney—The complaint of the plaintiff against the defendant shows to this court that the plaintiff is a good, true, honest, just and faithful citizen of the State of New York, and as such has always conducted himself, and been reputed, accepted and esteemed among his neighbors and other good and worthy citizens of said State to whom he was in any wise known, as a person of good name, fame and credit.

      And the plaintiff further shows that he is and has been for fifteen years past, in business as a conductor, manager or impresario, or ruler of a troupe or company of opera singers, musicians and performers, and is said business has acquired a great reputation and credit, and good name and fame, and has at all times conducted his said business with credit, skill and respectability, and good faith towards the public and those who attended, or were in the habit of frequenting the performances given by the plaintiff and his said company.

          And the plaintiff further says he has never committed, or been guilty of the matters, or any of them, alleged or intended to be charged by the defendants in the libelous matters hereinafter set out.

          And the plaintiff further shows that for many years past, to wit, for fourteen years last past, he has at diverse times leased, demised and hired, for the purpose of giving representations of operas, spectacles, and other performances by and with his troupe or company, various public buildings in the city of New York and other cities, among others the building or opera house in the city of New York called the “Academy of Music,” and has given such performances and representations with credit and good name, and to numerous, large, and respectable audiences and persons, with great gains and receipts of money therefrom.

          And the plaintiff further shows that the costs and expenses of carrying on the said business, and payment of the expenses of said business, are and were very great, and that his sole dependence for the carrying on of the same and for his livelihood and that of his family, was and is in the profitable and successful result of said business.

          And the plaintiff further says his ability to perform his engagements under the lease, and each demise, hiring or lease of said Academy of Music by him, was and is dependent on the success of the previous hiring or performances given therein.

          And the plaintiff says, that before the commencement of this action, to wit, on or about the 18th day of May, 1863, he leased and hired the Academy of Music for the term of five months; said term to be extended if the performances given by the plaintiff should be successful and pay the expenses of the performances, and enable him to pay for the said Academy and maintain himself and family.

          And the plaintiff further says, that for the purpose of carrying on his said business during the said term and during such further terms as he might be able to carry on the same, and to give good and respectable performances of opera and other performances and spectacles connected with his said business, he laid out, and expended, and became, and was liable for a large sum of money, to wit, the sum of thirty thousand dollars and upwards, in and about the engaging and paying of numerous singers, performers, scenery, dresses and other necessaries in and about the getting up and performing of said opera and spectacles, and the said Academy of Music, and his business aforesaid.

          And the plaintiff further says that the said defendants are publishers, editors and proprietors of a public newspaper, published in the city of New York, known and called the Sunday Mercury, which said newspaper, as the defendants allege, ‘has the largest circulation of any Sunday newspaper in the country,’ to wit, the United States, and that weekly three editions thereof are printed, issued and published by them. And the plaintiff says he is informed and believes that one hundred thousand copies of said newspaper are printed, published, sold or circulated in and among the public.

           And the plaintiff further shows that, previous to the commencement of this action, and on or about the 21st day of October, 1863, this plaintiff commenced an action against the said William Cauldwell and Horace P. Whitney in this court for the recovery of damages for the publication of other false, scandalous, malicious, defamatory and libelous matter published in the said Sunday Mercury, of and concerning the plaintiff and his said business and the manner he conducted the same.

          And the plaintiff further shows that the said defendants have, nevertheless, since the publication of the said libellous in the action hereinabove referred to, and since the publication of the matter herein complained of, and have continued maliciously in the publication in the said Sunday Mercury of other false, scandalous, malicious, defamatory and libeloius [sic] matter, of and concerning the plaintiff, and his said business and the manner he conducted the same.

          And the plaintiff further says that the said defendants, contriving and wickedly and maliciously intending to injure the plaintiff in his said good name, fame and credit, and to injure him as manager, conductor or impresario of the opera, as aforesaid, and to deprive him of all benefit of the Academy of Music, and his lease and future leases thereof, and to injure and destroy his said business as aforesaid, and to bring him and his said business into public scandal, infamy and disgrace with and among all his neighbors and the public, and to prevent him from carrying on his said business, and to vex, harass, oppress, impoverish and wholly ruin him and his said business, did falsely, wickedly and maliciously, on the 26th day of October, 1863, at the city of New York, print, publish and cause to be printed and published in their said newspaper, the Sunday Mercury, of and concerning the plaintiff, and of and concerning his said business, and the manner he conducted the same, and of and concerning said suit, a certain false, scandalous, malicious and defamatory libel, containing among other things the false, scandalous, malicious, defamatory and libellous [sic] matter following, of and concerning the plaintiff, and of and concerning his business, and the manner he conducted the same –heading the same with these words:--

          ‘Italian Opera vs. the Sunday Mercury—Pitiful Attempt to Muzzle the Press,’ thereby alluding to the action brought by the plaintif

Maretzek and the Herald – Maretzek’s third letter to the Herald, which was addressed less to the Herald than to “Chevalier Wykoff,” has produced a much greater response from the audience than his first two letters. Meanwhile the Herald has started a new strategy to hurt Maretzek’s reputation; the publisher has looked for allies in the press and has found one. The Sunday Mercury has been in disagreement with Maretzek since he sued the paper years ago. In the Mercury’s latest edition, Maretzek is attacked heavily, together with other members of the press, who, according to the Mercury, are supportive of Maretzek in this feud. The Mercury says of Maretzek: “An insolent barrel-organ player, Max Maretzek, who has been picking up lousy singers from beer halls and concert salons and calls their screech Italian Opera, is using a literary loafer to write letters to the Herald. He is accusing the paper of having cheated him out of $ 20,000 per year. Such an accusation has been unheard of as of now. The impresario has been incapable of paying his laundress, and also could not get enough money together to buy macaroni and sauerkraut for his workers, which has occasionally caused a mutiny. His letters to the Herald are like the humming of a mosquito or like the tenacious attempts of a fly to sit down on somebody’s nose; a little annoying, but way too paltry to have someone lose more than a little of his patience. He’d do better, if he would save the money he pays for the Bohemian letter translations for buying Gummi Arabicum or Flaxseed Tea to oil the vocal chords of his narrow-chested singers whose voices sound not unlike a saw cutting through hard wood.

Another example of the Sunday Mercury’s plebianism is presented in another article directed towards a respected member of the New York press, Mr. Paul F. Nicholson of the World, which says as follows: “Nicholson is a long, skinny fellow with a big mouth and a red nose. As a reviewer, he is more familiar with notes that are not of a musical nature. Nicholson has been doing some dirty work lately; however, due to his lack of significance, he had slipped our attention. Yet we have detected the dirtiest of the ‘Bohemians,’ the scum of society, among the press, in him.

With such ammunition, the Mercury has been fighting against Maretzek for two years. The Herald, making certain to be a comrade in arms of the Mercury, published on the same day the quoted articles released in the Mercury, the documents of last year’s trial, Maretzek v. Sunday Mercury. Within several days we expect letter no. 4 to be released, revealing even more facts, although we wonder if it would not be better if this interesting yet rather less savory dispute would not soon find its conclusion.

“The German Impresario, Maretzek, has not benefitted himself by his recent insulting letters touching the Herald, for though his remarks are aimed at that paper, yet they are alike applicable to all papers that have accepted favors (in the shape of free admissions to his operatic entertainments), at his hands. For years has this man been treated in the most liberal manner by the press of this city, receiving gratuitous notices, which, had they been paid for, would have cost him many thousands of dollars.  And now we see how he requites such generosity, by publishing what purports to be a statement of the number of free admissions given to the Herald during the year.  While he was about it, why not make the statement complete by including the names of all the papers he has given free tickets to, with the number given to each?  It is to be hoped that no paper will hereafter accept favors from such a man.  His insult to the press of this country, through one of its representatives, should not be overlooked.”

“The opera season also has begun; but how it will close may be quite another question.  The management of the Italian opera is in the hands of a man who has lately shown by his publications that he is a blackguard and a common liar.  His recent charges are, so far as we are concerned, mere trash.  We never had a box or a seat at the Opera that we were not quite ready to pay for.  As for the charge against us on the score of advertising—it is equally nonsensical.  The whole Italian opera together never paid us the tithe of what the Ethiopian opera pays us.  But the real blackguardism in this charge is an assault upon a poor artiste, the wife of a gentleman formerly one of our musical critics.  It is said that the charge for dresses from the Academy wardrobe refers to dresses loaned to Olive Logan for use on the stage, and it is thus insinuated that they have not been returned and that the lady is a swindler.  We do not believe this to be true, and we leave the answer to the lady’s husband, Henry Delille.

          The stockholders of the Academy ought to consider whether their property is not endangered by being in the hands of such a man, and the subscribers to the Opera should reflect how they are dragged from their social position before courts and juries in his libel suits.  It remains to be seen whether these influences will not place a man in charge of the Opera who will manage it decently.  Our principal theatres are in the hands of gentlemen, men of culture and intellect, who seem to restore the elegant days of the Old Park.  Messrs. Wallack, Wheatley and Stuart and the rest can manage their business in a business way, and retain their pleasant relations with the press, and certainly the Academy ought to be in the hands of a man who can do the same.”