Bantam Books, Inc. v. Melko

14 N.J. 524 (1954) 103 A.2d 256

BANTAM BOOKS, INC., PLAINTIFF-RESPONDENT,
v.
MATTHEW F. MELKO, PROSECUTOR OF THE PLEAS OF THE COUNTY OF MIDDLESEX IN THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.

The Supreme Court of New Jersey.

Argued December 14, 1953. Decided March 8, 1954.

Mr. John B. Molineux argued the cause for the appellant (Mr. J. Randolph Appleby, III, Assistant Prosecutor for Middlesex County, attorney).

Mr. Horace S. Manges, of the New York Bar, argued the cause for the respondent (Mr. Joseph Steiner, attorney).

PER CURIAM.

By the voluntary acts of the plaintiff by submission to conferences before suit, the object of its suit was reduced to restoration of a single publication of the plaintiff, namely, The Chinese Room, to circulation. The defendant prosecutor's defenses were all related by him to laws of this State prohibiting and penalizing the advertising, offering for sale and selling of obscene matter. The Superior Court, Chancery Division, having found that the book in question was not criminally obscene, all other issues were rendered moot. This ordinarily would require dismissal here, inasmuch as the defendant prosecutor has not appealed from the determination that the specific book is not criminally obscene. The defendant prosecutor, however, complains about the breadth of the judgment. Without an expression of views upon the merits, the judgment is modified by exscinding paragraphs 1 through 9, inclusive, thereof and substituting therefor the following paragraph:

1. That the County Prosecutor of Middlesex County be and he hereby is enjoined from interfering with the right of the plaintiff to distribute and sell the book entitled The Chinese Room in Middlesex County.

As so modified the judgment of the Superior Court, Chancery Division, 25 N.J. Super. 292, is affirmed and the cause is remanded to that court for formal entry of the judgment as modified hereby.

For modification — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN — 7.

Opposed — None.