Kerbs v. Rosenstein
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Opinion of the Court
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PATTERSOH, J.
The injunction was contained in an order to show cause why it should not be continued and made permanent until final judgment in the action, and upon the hearing of that order the plaintiffs’ case was met by affidavits denying the formation or existence of a conspiracy, and also denying the specific acts which the plaintiffs claim constituted violence towards their employés, or threats or intimidation, or efforts illegitimately to prevent persons entering the employment of the plaintiffs, or to induce them to leave that employment. Upon a full consideration of the affidavits, the justice at special term decided to dissolve the injunction; and, upon a critical examination of all that is contained in the appeal book now before us, we cannot say that the court below was in error in its conclusion that the rights of these parties should not be definitely passed upon until a full investigation, by examination and cross-examination of the witnesses, could be had upon a formal trial of the cause. It is quite apparent that the very serious allegations of the complaint and the affidavits upon which the injunction was granted have been in their most essential features successfully refuted by the affidavits read on behalf of the defendants. It is abundantly shown that neither the Cigar Makers’ International Union of America nor local union Ho. 144 had anything whatever to do with originating the strike among the plaintiffs’ employés. Of the 2,000 employés who quit work, 1,600 were nonunion members; only 400 of them belonged to the associations. The strike was the voluntary and spontaneous action of the strikers themselves, whose grievances are set forth in the papers before us. The claim that Rosenstein and Bennett, acting for their respective associations, advised the strike, or that their associations had anything whatever to do with it, except, subsequently to its occurrence, to furnish money for the support of the strikers, is disproven. We do not find in this record that the two associations, either separately or conjointly, are to be held responsible for any of the acts of their individual members, or of individual employés of the plaintiffs engaged in the strike. The information upon which the allegations against these associations- are made, and the grounds of the plaintiffs’ belief respecting the same, are not made to ap *389 pear in such manner as would authorize the court to maintain an injunction against those associations. That Bosenstein and Bennett and Marousek, and others who were members of these associations, went among the employés and consorted with them during the strike, is clear, but that they acted under orders of their associations is not established. Every act of alleged violence and every specific charge of threats or intimidation by those engaged in picketing and patrolling is denied under oath, fully and unreservedly. The defendants’ version of the case, as presented by affidavits, is that the few girls who were engaged at stated hours in the morning and in the afternoon upon the street, and accosting and speaking to employés entering or leaving the plaintiffs’ premises, were merely stating the case of the strikers to those with whom they entered into conversation, and the few specific acts of violence related in the plaintiffs’ affidavits are positively denied by the affiants for the defendants. We are asked to hold that any species of picketing or patrolling by strikers is unlawful, and that therefore an injunction should issue to restrain such acts. We are not called upon to decide that question upon such a conflict as appears in this case as to what was really done by these so-called pickets or patrol. Upon the general rights of employés to strike, and quietly and peaceably to maintain their cause against their employers, no dispute is made. The justice in the court below was not satisfied that such conditions existed of actual or threatened injury to the plaintiffs as would justify the granting, pending the action, of that full relief which, he thought, should only be allowed, if at all, after a full trial of the cause. It is alleged by the plaintiffs that at one time, in order to their protection, they called for a police force, and that 20 policemen were furnished for their protection; but when that was done, how long it was continued, and what its necessity was, do not appear. If the facts as alleged by the plaintiffs were established by a preponderance of proof, we should have no difficulty in reinstating some of the provisions of the injunction, but upon these affidavits a ease is not made out for such relief. For that reason we must affirm the order of the court below, with $10 costs and disbursements.
VAN BBUNT, P. J., and BUMSEY and O’BBIEN, JJ., concur.
Dissent
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McLAUUHLIN, J. (dissenting).
I cannot agree to an affirmance of the order appealed from. The plaintiffs are engaged in the manufacture of cigars, and the action is brought to restrain the defendants, the officers and managers of certain cigar makers’ unions, their agents and servants, from illegally interfering with the business of the plaintiffs, and from illegally preventing them from obtaining workmen in their factory. The moving papers, upon which the plaintiffs based their application to have a temporary injunction continued pendente lite, established that the defendants have ordered a strike of the workmen in the plaintiffs’ factory, and, for the purpose of making such strike effective, have placed “pickets” in front of their building; that these pickets loiter and walk slowly *390 and continuously in front of the building; that they jostle “against employés coming in and going out, sneering, hooting, and laughing at employés, calling them by vile names, and urging them to leave” plaintiffs’ employment, “and persuading would-be employés, by means of argument, threat, and fear of bodily harm, not to enter” plaintiffs’ employment; that they congregate in front of plaintiffs’ building, preventing access thereto, and that' at least upon one occasion a picket forcibly seized a person who was applying for employment, and endeavored by physical force to pull such person from the entrance to the building, and, upon being prevented from doing so, made certain threats, and upon another occasion a picket made insulting remarks to a girl coming out of the factory, and another picket stopped a girl (one of plaintiffs’ employés), and told her she shoúld not go into the building .for the purpose of working therein, and that if she continued to work for the plaintiffs she would be “licked”; and that “within a fortnight after the strike” had been ordered, and after the plaintiffs had put “about five hundred persons to work” in their factory, “owing to the presence of such patrollers, and to their manifest intention to intimidate and do harm” to such employés, the plaintiffs were obliged to, and did, have 20 police officers detailed to special service- in the vicinity of their factory “for the protection of” their “employés.” The allegation that 20 police officers were thus detailed for the purpose specified is nowhere denied, and some of the specific acts alluded to in the moving affidavits are not clearly or satisfactorily denied. Therefore the court not only had the right, but it was its duty, it seems to me, to restrain the continuance of them by injunction. Can it be that a court of equity will refuse to exercise its equitable powers to restrain unlawful acts of this character? If so, I am at a loss to understand upon what principle it can be done. It may be that picketing, per se, is not an illegal act, but that is not the question here presented. Here something more was done than picketing. Intimidation, coercion, and force were used; and such acts no court, so far as I am aware, has yet refused to restrain. It is true that the pickets were women, but this does not detract from the illegality of the act, and especially when the acts of such women were directed against other women and girls in the employ of the plaintiffs. What was said and done by the pickets was calculated to, and unquestionably did, intimidate and coerce, to a certain extent, the plaintiffs’ employés and others seeking employment. Therefore this case is brought directly within the recent decision of this court in the case of Printing Co. v. Delaney, 48 App. Div. 623 , 62 N. Y. ;Supp. 750. The preliminary injunction was too broad, and should ¡have been modified so as to prevent the defendants, their agents, . servants, and members, from interfering with .the plaintiffs’ business, . or picketing their factory in such a manner as to express or imply ;a threat, intimidation, coercion, or force; and, as thus modified, ■it should have been continued during the pendency of the action. •.Such a determination would not infringe upon any rights of the defendants, so long as they conducted themselves in a quiet, peaceable, and law-abiding manner. But if they went beyond that,—if *391 they resorted to intimidation, to coercion, to threats, or to force, for the purpose of injuring the plaintiffs or their business,—then the injunction would, as it should, apply to their acts. For the foregoing reasons, I am unable to concur in the opinion of Mr. Justice PATTERSON. I think the order appealed from should be reversed, with @10 costs and disbursements, and the preliminary injunction modified as suggested in this opinion, and, as thus modified, continued during the pendency of the action.
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