National Protective Ass'n of Steam Fitters & Helpers v. Cumming

The order of the Appellate Division should be affirmed, on the ground, that the facts found do not support the judgment of the Special Term. In the discussion of that proposition I shall assume that certain principles of law laid down in the opinion of Judge Vann are correct, namely :

“ It is not the duty of one man to work for another unless he has agreed to, and if he' has so agreed hut for no fixed period, either may end the contract whenever he chooses.' The one ' may work, of refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance 'from

Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employee’s giving a reason, if he has one, and the fact that the reason given is, that he refuses to work with another who is not a member of his organization, whether stated to his employer or not,, does not affect his right to stop work nor does it give a cause of action to the workman to whom he objects because the employer sees tit to discharge the man objected to rather than lose the services of the objector.

.The same rule applies to a body of men who, having organized for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but if it seems to be in their interest as members" of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be denianded, as a right, of the organization than of an individual, but if they elect to state the reason their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal ift itself, it does not become illegal because

The principles cpioted above recognize the legal right of members of an organization to strike, that is, to cease working in a body by pre-arrangement until a grievance is redressed, and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor or improved relations with their employers, but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by prearrangement, to work. The enumeration is illustrative rather than comprehensive, for the object of such an organization is to benefit all its members and it is their right to strike, if need J be, in order to secure any lawful-benefit to the several members of the organization as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employees who are not members.

And whenever the courts can see that a refusal of members of an organization to work with non-members may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of. such refusal was solely to gratify malice and to inflict injury upon such non-members.

A number of reasons for the action' of the organization will at once suggest themselves in a case like this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the non-members are performing. And another most important reason is suggested by the fact that these particular organizations, associations of steam fitters, required every applicant for membership to pass an examination testing his competency. Now, one of the objections sometimes

AYliile I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and further, had die right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with non-members, when, in the event of injury by the carelessness of such co-employees, the burden would have to be borne by the injured, without compensation from the employer and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves and careless of .the rights of others, with the result that accidents are occurring almost constantly which snuff out the

I know it is said in another opinion in this.case that “ work, men cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ ; ” but I dissent absolutely from that proposition, and assert that, so long as workmen must assume all the risk of injury that may come to them through the carelessness of co-employees, tjiey have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services.

If it be true, as was recently intimated by the Supreme Court of Pennsylvania in Durkin v. Kingston Coal Co. ( 171 Pa. St. 193 ), that an act of the legislature which undertakes to “ reverse the settled law upon the subject arid declare that the employer shall be responsible for an injury to. an employee resulting from the negligence of a fellow-workman ” is unconstitutional — a doctrine from which I dissent (see Tullis v. L. Erie & W. R. R. Co., 175 U. S. 348 ), but which it is possible may receive the support of the courts — then the only opportunity for protection, in the future as well as the present, to workmen engaged in dangerous occupations is through organizations like these defendant associations, which restrict their memberships to careful and skillful men, and prohibit their members from working with members of other organizations which maintain a lower standard or none at all. For the master’s duty is discharged if the workman be competent, and for his recklessness, which renders his employment a menace to others, the master is not responsible.

But I shall not further pursue this subject. My object in alluding to it is to emphasize the fact -that there are other purposes for which labor organizations can be effectually used

In Bowen v. Matheson ( 14 Allen, 499 ) the court had before it on demurrer a declaration in an action where the defendants’ business liad been practically broken up, and it said: “ In order to be good the declaration must allege against the defendants the commission of illegal acts. Its allegations must be analyzed to ascertain whether they contain a sufficient statement of such acts.” This was followed bv an interesting analysis which resulted in disclosing that no illegal act was alleged notwithstanding the liberal use of such extravagant words and phrases as “ maliciously conspiring together,” and “ fellow-conspirators as aforesaid in pursuance of their conspiracy as aforesaid,” whereupon the demurrer was sustained

Now, before taking up the findings of "fact for analysis in the light of the principles quoted above, as was done in Bowen's case, and with the view of showing that they do not sustain the judgment of the Special Term, I wish to again call attention to the rules quoted, and particularly to so much of them as intimates that if the motive be unlawful or be not for the good of the organization or some of its members, but ’ prompted wholly by malice aiid a desire to injure others, then- ’ an act, which would be otherwise legal, becomes unlawful. ' To state it concretely, if an organization strikes to help its members, the strike is lawful. If its, purpose be merely to injure non-members, it is unlawful. If the organization noth fies the employer that-its members will not work with nonmembers, and its real object is to benefit the organization and secure emqiloyment for its members, it is lawful. If its sole purpose he to' prevent non-members working, then it is unlawful. I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short ofil absurd to say that the every-day acts of the business world, I apparently within the domain of competition, may be either I lawful or unlawful according to the motive of the actor. If tliePJ motive be good, the act is lawful; if it be bad, the act is unlawful. Within all the authorities upholding the principle of com- . petition, if the motive be to destroy another’s business in order to secure business for yourself, the motive is good; but, according to a few recent authorities, if you do not need the business, or do not -wish it, then the motive is had ; and some court may say to a jury, who arc generally the triers of fact, that a given act of competition which destroyed A’s business was legal if «- the act was prompted by a desire on the part of the defend- f; ant to secure to himself the benefit of it, but illegal if its V purpose was to destroy A’s business in revenge for an insult 1 given.

But for the purpose of this discussion I shall assume this . proposition to be sound, for it is clear to me that, applying

While I shall' consider every fact found by the learned trial judge I shall consider the findings in a different order, ■ because it seems to me the more logical order. He finds “ that the defendants Gumming and Nugent, while acting in their capacity ■ of walking delegates for their respective associations and members of the Board of Delegates, caused the plaintiff McQueed and other members of the plaintiff association to be discharged by their employers from various pieces of work upon" buildings in the course of erection, * * * by threatening the * "x" employers that if they did not discharge the members of tile -plaintiff association and employ the members of the Enterprise and Progress associations in their stead, the said walking delegates would cause a general strike of all men of other trades employed on said buildings, and that the defendant Gumming, as such walking delegate, did cause strikes, "x" * * in order to prevent the members of the plaintiff association from continuing with the work théy were doing at the time the strike was ordered, and that said employers by reason of said threats and the acts of the defendants Gumming and Nugent, discharged the members of the plaintiff association and employed the members of the Enterprise and Progress associations in their stead.”

Now there is not a fact stated in that finding which is not lawful within the rules which I have quoted supra. Those principles concede the right of an association to strike in order to benefit its members; and one method of benefiting them is to secure them employment, a method conceded to be within the right of an organization to employ. There is no pretense that the defendant associations or their walking delegates had any other motive than one which the law justifies of attempting to benefit their members by securing their employment. Nowhere throughout that finding will be found even a hint that a strike was ordered or a notification given of the intention to order a strike for the purpose of accomplishing any other result than that of securing the discharge of the mem

I doubt if it wonld ever have occurred to any one to claim that there was anything in. that finding importing a different motive from that specially alleged in the finding, had not the draftsman characterized the notice given to the employers by the associations of their intention to strike as “ threats.”

The defendant associations, as appears from the finding . quoted, wanted to put .their men in the place of certain men- ■ at work who were non-members working "for smaller pay, and they set- about doing it in a perfectly lawful way. Théy." - determined' that if it were necessary they would bear the burden and expense of a strike to accomplish that result; and v in iso determining they were clearly within their rights, as all . ■ agree.. They could have gone upon a strike without offering ' any explanation until the contractors shofild have come in dis tress to the officers of the associations asking the reason for the strike. ■ Then,- after explanations,' the non-members would ' have been discharged and the men of defendant associations sent back to work. Instead of taking that course, they chose to inform the -contractors of their determination and the - ■ reason for it.

It is the giving of this information, a simple notification of

The findings further stated that the defendants Gumming ' and Hugent were the walking delegates of the defendant associations and as such were members of the board of delegates of the building trades in Hew York and were, therefore, in control of the matters in their respective trades. The trial court also foundthat the defendant Gumming threatened to cause a general strike against the plaintiff association and against the plaintiff McQueed wherever he found them at work, and that he would not allow them to work at any job in the city of Hew York, excep’t some small jobs where the men of the Enterprise Association were not employed, and that he and the defendant Hugent threatened to drive the plaintiff association out of existence.” . •

How this finding should be read in connection with, and in ■the light of, the other findings which -I have already reayl and commented on and which show that the purpose of the' strike was to secure the employment of members of the defendant associations in the places filled by the members of plaintiff’s association, who were willing to work for smaller wages, á perfectly proper and legitimate motive, as we have seen. . But if the other findings be driven" from the mind while considering this one^ which the opinions of the Appellate' Division indicate was .not justified by the evidence, it-will be found that it fairly means no more than that the defendant assóciartions did not purpose to allow McQueed and the -members of

Having reached that conclusion, defendants notified McQueed, who had organized an association when he failed to pass the defendants’ examination, that they would prevent him and the men of his association from working on a certain class of jobs. They did not threaten to employ any illegal method to accomplish that result; they notified them of the purpose of the defendants to secure this work for themselves and to prevent McQueed and his associates from getting it, and in doing that they but informed them of their intention to -do what they had a right to do, and when a man purposes to do something which he has the legal right to do, there is no law which prevents ,liim from telling another, who will be affected by his act, of. his intention.

A man has a right under the law to start a store and to sell at such reduced prices that he is able in a short time to drive the other storekeepers in his vicinity out of business, when, having possession of the trade, he finds himself soon able to recover the loss sustained while ruining the others. Such has been the law for centuries. The reason, of course, is 'that the doctrine has generally been accepted that free competition is worth more to society than it costs, and that, on this "ground^ the infliction of damages is. privileged. (Commonwealth v. Hunt, 4 Metcalf,. 111, 134.) .

Mor could this storekeeper be. prevented'from carrying out his scheme because, instead of hiding his purpose, he openly declared to those storekeepers that he intended to drive them out of business in order that he might later profit thereby. Mor would it avail such storekeepers, in the event of their

A labdr organization is endowed with precisely the same legal right as is an individual to threaten to do that which it. may lawfully do.

Having finished the discussion of the facts, I reiterate that, within the rules of law I have quoted, it must appear, in order to make out a cause of action against these defendants, that in what they did they were actuated by improper motives, by a malicious desire to injure the plaintiffs. There is no such finding of fact, and there is no right in this court to infer it, if it would, and from the other facts found, it is plain that it should not, if it could.

The findings conclude with a sentence which commences as follows: “ I find that the threats made by the defendants and the acts of the said walking delegate's in causing ine discharge of the members of the plaintiff association by means of threats of a general strike of other workmen, constituted an illegal combination and conspiracy.” — That is not a finding of fact, but a conclusion of law that the trial court erroneously, as I think, attempted to draw from the facts found, which I have already discussed, and which clearly, in my judgment, require this court to hold that <--he defendants acted within their legal rights.

In the lase analysis of the findings, therefore, it appears that they declare that members of the organizations refused to work any longer (as they lawfully might); that they threatened to strike (which was also within their lawful right), but witho'ut any suggestion whatever in the findings that they threatened an illegal or unlawful act. And such findings are claimed to be sufficient to uphold a judgment that absolutely enjoins the defendant associations and their members from striking. This is certainly a long step in advance of any decision brought to my attention.

The statutes (for there are two) of Labourers, passed in 1349 and 1350 (23 Edw. Ill, and 25 Edw. Ill, st. 1) provided: “ that every man and woman of what condition he he, free or bond, able in body, and within the age of three score years,” and not having means of his own, “ if he in convenient service (his estate considered) be required to serve, he shall be bounden to serve him which so shall him require.” And the statutes provide that in case of refusal to serve, punishment by imprisonment might be inflicted, and that the laborer should take the customary rate of wages and no more. These statutes not only regulated the wages of laborers and mechanics, but they confined them to their existing places of residence and required them to swear to obey the provisions of the statutes. Sir James Fitz james Stephen, in his History of the Criminal Law of England (Yol. Ill, page 204), says, “ the main object of these statutes was to check the rise in wages consequent upon the great pestilence,called the black death.”

Mearly 200 years later, and in 1548, a more general statute was passed which forbade all conspiracies and covenants of artificers, workmen or laborers, “ not to make or do their work but at a certain price or rate,” or for other similar pur-, poses, under the penalty, on a third conviction, of the pillory and loss of an ear, and to.“be taken as a man ‘infamous.’” (2 & 3 Edw. YI, c. 15.)

Fourteen years later the prior statutes were to some extent amended and consolidated into a longer act, entitled “ An Act

In the year 1720 an act was passed declaring all agreements between journeymen tailors “ for advancing their wages, or for lessening their usual hours of work ” to be null and void, and subjecting persons entering into such an agreement to imprisonment with or without hard labor for two months. (7 Geo. I, st. 1, c. 13.) Similar enactments were passed sis to employees in other manufactures and trades.

The act of 1800 (40 Geo. Ill, c. 60) provided for a penalty of three months imprisonment without hard labor or two months with hard labor for every journeyman, workman or other person who “ enters into any combination to obtain an advance of wages, or lessen or alter the hours of work * * * or who hinders any employer from employing any person as he thinks proper, or who being hired refuses without any just or reasonable cause to work with any other journeyman or workman employed or hired to work.” The same penalty is inflicted upon persons who attend meetings held for the purpose of collecting money to further such effort, and the act also makes it an offense to assist in maintaining men who are on strike. This statute, as well as the others referred to, have at last been swept away, but necessarily their influence has been not inconsiderable in shaping the decisions of the courts of England.

I express my concurrence with the conclusion, which has been reached by the chief judge in his opinion, that the order of the Appellate Division should be affirmed.

Briefly stated, my view is that the respondents had the legal right to accomplish their object by all methods not condemned by the law. That object was to secure the employment of the members of their own association, in preference to, and to the exclusion of, those of the appellant association They infringed upon no law in declaring to the employers of members of the appellant organization that they refused to work with them; or that they would abandon their work unless the others were discharged; or in preventing the members of the appellant association from being employed as steam litters. The case is not within the principle of Curran v. Galen, ( 152 N. Y. 33 ). Upon the facts of that case, as they were admitted by the demurrer to the complaint, the plaintiff was threatened, if he did not join a certain labor organization, and so long as he refused to do so, with such action as would result in his discharge from employment and in an impossibility for him to obtain other employment anywhere and, in consequence of continuing his refusal to join the organization, his discharge was procured through false and malicious reports, affecting his reputation with members of his trade and with employers. There is no such compulsion, or motive, manifest here. There is no malice found. There is no threat of a resort to illegal methods. We may assume, (and the evidence would justify the assumption), that the action of the respondents was based upon a proper motive, relating to the employment of mechanics whose competency and efficiency had been examined into and approved. The contest is between rival labor organizations, it is true. The respondents have succeeded, through the threat that other workmen would leave their work, if the members of the appellant organization were not discharged, iq procuring the

I concur with the chief judge in his analysis of the decision of the trial court and that the facts, as therein stated, do not compel the legal conclusion which the learned trial judge reached.

I vote for the affirmance of the order of the Appellate Division.

(dissenting). The Hational Protective Association of Steam Fitters and Helpers is a domestic corporation, organized to furnish competent steam fitters and helpers in all. branches to the general public, to protect its members in' the pursuit of that business and for other purposes. The plaintiff Charles McQueed is a member of that corporation, and sues for the benefit of himself and his 'fellow-members. The defendant O’Brien is the president of the Board of Delegates ; the defendant Duff is the treasurer of the Enterprise Association of Steam Fitters; the defendant Malianey is the treasurer of the Progress Association of Steam Fitters and Helpers; the defendant Gumming is an officer known as the walking delegate of the Enterprise Association; the defendant Hugent is the walking delegate of the Progress Association, and both Gumming and Hugent are ex-officio members of the board of delegates. Each of these associations is unincorporated and consists of more than seven members.

This action was brought to restrain the defendants from preventing the employment of the plaintiff corporation or its members, and from coercing their discharge by any employer through threats, strikes or otherwise, and to recover damages with other relief.

The issues joined by the answers of the several defendants were tried at Special Term. The trial justice adopted the short form of decision, but in stating the grounds upon which he proceeded, found specifically “ that the defendants have entered into a combination which in effect prevents and will continue to prevent the plaintiff McQueed, and the other members of the plaintiff association from working at his or their trade in the city of Hew York; * * * that the defendant Gumming threatened to cause a general strike against the 'plaintiff association and against the plaintiff McQueed wherever he found them at work, and that he would not allow them to work at any job in the city of Hew York, except some small jobs where the men of the Enterprise Association were.not employed, and that he and the defendant . Hugent threatened to drive the plaintiff association out of

A judgment was directed and entered restraining the defendants from “ preventing the. work, business or employment of the plaintiff corporation or any of its members in the city of New York or elsewhere, and from coercing or obtaining by command, threats, strikes or otherwise, the dismissal or discharge by any employer, contractor or owner, of the members of the plaintiff corporation, or the plaintiff McQtieed, or any or either of them from their work, employment or business,.

The Appellate Division, according to its order, which is the only evidence of its action that we can consider, did not reverse upon a question of fact, and a reversal upon the law only is an affirmance of the facts found, which are thus placed beyond our control, as there was some evidence to support the findings. (People v. Adirondack Railway Company, 160 N. Y. 225 , 235; Code Civ. Pro. § 1338.)

Thus we have before us a controversy, not between employer and employee, but between different labor organizations, wherein one seeks to restrain the others from driving its members out of business and absolutely preventing them from earning a living by working at their trade, through threats, made to the common employer of members of all the organizations, *to .destroy his business unless he discharged the plaintiff’s members from his employment.

The primary question is whether the action of the defendants was unlawful, for a lawful act, done in a lawful manner, cannot cause actionable injury. It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed, but for no fixed period, either may end the contract whenever he chooses. The one may work, or refuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason therefor. Whatever one man may do alone he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act.

Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or iniproying their relations with their employers. They have the right to

A combination of workmen to secure a lawful benefit to themselves should be distinguished from one to injure other workmen in their trade. Here we have a conspiracy to in jure the plaintiffs in their business, as distinguished from a legitimate advancement of the defendants’ own interests. While they had the right by fair persuasion to get the work of the plaintiff McQueed, for instance, they had no right, either by force or by threats, to prevent him from getting any work whatever, or to deprive him of the right to earn his living by plying his trade. Competition in the labor market is lawful, but a combination to shut workmen out of the market altogether is unlawful. One set of laborers, whether organized or not, has no right to drive another set out of business or prevent them from working for any person, upon any terms satisfactory to themselves. By threatening to call a general strike of the related trades, the defendants forced the contractor to discharge competent workmen, who wanted to work for him, and whom he wished to keep in his employment. They conspired to do harm to the contractor in order to compel him to ¡do harm to the plaintiffs, and their acts in execution of the ¡conspiracy caused substantial damage to the members of the ¡plaintiff corporation. While no physical force was used, the practical effect was that members of one labor oi’ganization drove the members of another labor oi’ganization out of business and deprived them of the right to labor at-their chosen vocation. Depriving a mechanic of employment by unfair means is the same in principle as depriving a tradesman of his customers by unfair means, which has always been held a violation of law.

A conspiracy is a combination to do an illegal act by legal means, or any act by illegal means. Here, the means used

The same man said to one of the contractors that he could not have the plaintiff’s men in ’ his employment, and unless they were discharged he would order a “ general strike of the whole building.” . They were discharged accordingly, although the contractor testified that they were good workmen ; that their work was satisfactory, and that he had no reason for discharging them other than the threats made. Another contractor testified that two of the defendants told him that he must take the plaintiff’s men off and put their men on, “ or else the whole building would be tied up, as they would not allow the other men to work.” The usual discharge followed, although the men were satisfactory to their employer. The same witness testified that “ Mr. Gumming would neither allow' my men to work, nor would he allow his men to go to work until the time had been paid for between the interval they struck and the time they were to go to work again.”

A member of the plaintiff corporation swore that “Mr. Gumming told us that if he ever found us on a job in the vicinity of Hew York, he would strike it by order of the Board of Delegates. He said they would not allow us to work on any job, except it was a small job, a cheap, job, and he allowed us to do it.” The threat was repeated in substance to the employer, who discharged the witness and he was not employed on the building afterward.

There was other evidence to the same effect, and although the defendants denied making these threats, the trial judge accepted the version of the plaintiff’s witnesses, and,' hence, we must do the same. I assume, therefore, that the defendants caused the discharge of the plaintiff’s men by threatening to cripple their employer’s business unless he discharged them,

It may be argued that the employers were not obliged to yield to these threats, and this is true; but non-compliance meant ruin to them, for their work would be completely tied up and their business paralyzed. • A threat, with ruin behind it, may be as coercive as physical force. The effect of such threats upon men of ordinary nerve is well known. They could not perform their contracts and would thus be subjected to great loss. Hence, against their will, they yielded to unlawful demands. Personal liberty was interfered with through coercion of the will. Some of them knew from experience, as the record shows, that the military discipline of the defendant organizations practically compelled instant obedience of an order to strike. When an association is so strong and its discipline so perfect that its orders to strike are equivalent to the commands of an absolute monarch, the effect is the same as the use of physical force. (Tiedeman’s State and Federal Control of Persons and Property, vol. 1, p. 433; Erie on Trade Unions, 12, 105.)

The purposes of the defendants, as well as the methods pursued by them, were unlawful and authorized the injunction granted by the trial court, in order to prevent irreparable injury and a multiplicity of suits. This was conceded in Reynolds v. Everett ( 144 N. Y. 189 ), and demonstrated in Davis v. Zimmerman ( 91 Hun, 489 ). Each man would be compelled to bring a separate action every time he was discharged. An action at law, especially against an unincorporated association, would ordinarily do no good, and in most cases ruin would anticipate relief. Damages would not adequately redress the wrong, and the mere statement of the facts

The fact that a lawful strike inflicts injury upon the employer is not controlling. As was said by a recent writer upon the subject: “ The courts recognize the right of workingmen to combine together for the purpose of bettering their condition, and in endeavoring to attain their object they may inflict more or less inconvenience and damages upon the employer; but a threat to strike unless their wages are advanced is something very different from a threat to strike unless workmen who are not members of the combination are discharged. In either case the inconvenience and damage inflicted upon the employer is the same; but in the one case the means used are to attain a legitimate purpose, namely, the advancement of their own wages, and the injury inflicted is no more than is lawfully incidental to the enjoyment of their own legal rights. In the other case the object sought is the injury of a third party; and while it may be argued that indirectly the discharge of the non-union employee will strengthen and benefit the union and thereby indirectly benefit the union workmen, the benefit to the members of the combination is so remote, as compared to the direct and immediate injury inflicted upon the non-union workmen, that the law does not look beyond the immediate loss and damage to the innocent

The conclusions I have announced are supported by the weight of authority in this country and in England. The leading case in this state is controlling in principle and requires a reversal of the order appealed from. (Curran v. Galen, 152 N. Y. 33 .) The plaintiff in that case alleged in his complaint that- the defendants wrongfully conspired to injure him and take away his means of earning a livelihood; that they threatened to accomplish this unless he would join their association ; that in pursuance of the conspiracy, “ upon plaintiff’s refusing to become a member of said association,” the defendants “ made complaint to the plaintiff’s employee’s and forced them to discharge him from their employ, and, by false and malicious reports in regard to him, sought to bring him into ill-repute with members of his trade and employers and to prevent him from prosecuting his trade and earning a livelihood.” The answer set forth an agreement between a brewer’s association and a labor organization, of which defendants were members, to the effect that all employees of the brewery companies belonging to the former should be members of the latter, and that no employee should work for a longer period than four weeks without becoming a member. It was further alleged that the plaintiff was retained in the employment of one of the brewing companies for more than four - weeks after he was notified of the provisions of said agreement requiring him to become' a member of the local assembly; that the defendants requested him to become a member and on his refusal to comply, they, through their committee, notified the officers of said company that the plaintiff, after repeated requests, had refused for more than four weeks to become a member of said assembly, and that they did so solely in pursuance of said agreement and in accordance with the terms thereof, without intent or purpose to injure plaintiff in any way.

The plaintiff demurred to this defense upon the ground that it was insufficient, in law, upon the face thereof. The demur

The plaintiff, in a very recent case in England, employed non-union men, and' after trying in vain to have them admitted to the union, was told by its president that unless he discharged them his meat would be stopped at one Munce’s, who had been getting about £30 worth weekly from him for twenty years, although there was no permanent contract between them. Upon his refusing to discharge, the defendants, who were officers and members of the union, threatened to instruct Munce’s employees to cease work unless he complied with their request. The plaintiff still refused, whereupon Munce informed him that he need not send any more meat unless he arranged with the union, as his men had been ordered to quit work, and thereupon Munce ceased to deal with him. There was a recovery by the plaintiff, which was sustained by all the appellate courts. (Leathem v. Craig, 2 I. R. [1899] 667; Quinn v. Leathem, L. R. [App. Cas. 1901]

The earlier case of Allen v. Flood (L. R. [App. Cas. 1898] 1), upon which the Appellate Division relied in rendering the judgment now before us, was carefully limited and explained, if not virtually overruled.

The English cases were so thoroughly reviewed that it is unnecessary to make further reference to them. Among other things, it was said : “ He (referring to the plaintiff) was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of everyone not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If suco interference is justifiable in point of law, he has no redress. Again, if such interference is unlawful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact, in other words, if he is wrongfully and intentionally struck at through others and is thereby damnified, the whole aspect of the case is changed; the wrong done to others reaches him, his rights are infringed, although indirectly, and damage to

See, also, the opinion in Taff Vale Ry v. Amalgamated Society (L. R. [App. Cas. 1901] 431), which had not been published when the judgment in Quinn v. Leathem was pronounced.

The position of the Federal courts and those of most of the states is to the same effect. (Old Dominion S. S. Co. v. McKenna, 30 Fed. Rep. 48 ; Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135 ; Hopkins v. Oxley Stove Co., 83 Fed. Rep. 916 ; In re Debs, 158 U. S. 564 ; Plant v. Woods, 176 Mass. 492 ; State v. Donaldson, 32 N. J. L. 151 ; Barr v. Essex Trades Council, 53 N. J. Eq. 101 ; Longshore Printing Co. v. Howell, 26 Oregon, 527; State v. Glidden, 55 Conn. 46 ; Crump v. Commonwealth, 84 Va. 927 ; State v. Stewart, 59 Vt. 273 ; Doremus v. Hennessy, 62 Ill. App. 391 ; State ex rel. Durner v. Huegin, 85 N. W. Rep. 1046 ; Chipley v. Atkinson, 23 Fla. 206 ; Lucke v. Clothing Cutters, 77 Md. 396 ; Murdock v. Walker, 152 Pa. St. 595 ; Beck v. Railway Teamsters Protective Union, 118 Mich. 497 .)

I add to the discussion of the common law governing the subject a quotation from the statute against crimes in this state, as indicating the policy of the law : “ If two or more persons conspire, * * * to prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements or property, belonging to or used by another, or with the use or employment thereof, * * *• each of them is guilty of a misdemeanor.” (Penal Code, § 168.) ' '

I think that the action of the defendants was unlawful and was properly restrained, but the injunction in the form granted is too broad and requires modification. It prevents the defend

The order of the Appellate Division so far as appealed from should be reversed and the judgment of the Special Term modified by striking out the words “ or otherwise ” therefrom, and as modified affirmed, with costs to the appellant in all courts.

O’Brien, Haight, JJ., (and Gray, J., in memorandum), concur with Parker, Ch. J.; Bartlett and Martin, JJ., concur with Vann, J.

Ordered accordingly.