Angelos v. Mesevich

After due trial of issues framed according to our practice, the Supreme Court, on the equity side, made findings of fact and conclusions of law upon which it granted a permanent injunction restraining and enjoining the defendants “ from stationing pickets at or near the plaintiffs’ place of business at 838 East 180th Street, Borough of the Bronx, City of New York, and from interfering with the plaintiffs’ customers who may seek to enter their place of business, or to prevent by coercion or otherwise any customers of the plaintiffs seeking to enter plaintiffs’ place of business, and from interfering in any other wise with the plaintiffs’ business.” Since the findings of fact were based upon sufficient evidence to support them, and the Appellate Division has affirmed the decree and made no new findings of fact, the findings of fact made by the trial court are not open for review by the Court of Appeals (Civ. Pr. Act, § 605), nor are we permitted to make new and additional findings of fact to form a basis to sustain the contention of the defendants. We must take the findings as made and determine the questions of law raised thereby.

The action was brought to restrain defendants from picketing plaintiffs’ premises and business and from illegally interfering with and injuring that business. There is nothing within the allegations of the complaint which brings the action within the provisions of section 876-a of the Civil Practice Act of this State. For that reason, among others, defendants contend that the judgment below must be set aside. The primary and principal issue litigated at the trial as raised by the answer was whether a “ labor dispute ” existed between the parties within the meaning, purpose and intendment of that act as construed by our State courts. To support defendants’ contention, they argue that a labor dispute existed between the plaintiff Loizides, who is claimed to have been operating a cafeteria at the location above specified with various non-union employees prior to April 22, 1939, and the defendants, and that such dispute held over and continued between the plaintiffs in

It has been found by the lower courts that the picketing of the World Cafeteria was at all times orderly and peaceful and that no acts of violence had been threatened or committed by the defendant union. The defendants had the constitutional right accurately and truthfully and without violence, force or coercion, or conduct otherwise unlawful or oppressive to make their grievances known to the public. (Wohl v. Bakery & Pastry Drivers & Helpers Local 802, supra.) But a citizen is not required to tolerate peaceful picketing accompanied by untruthful representations, interference with his business or coercive conduct designed to injure or destroy his business whether a labor dispute exists or not. (Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150 ; Wohl v. Bakery & Pastry Drivers & Helpers Local 802, supra.) Unlike the record in the Wohl case, there are findings of fact here to sustain the decree. In this case it has been found that individuals under the control of the defendants have been picketing the plaintiffs’ cafeteria, bareing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor and that the pickets were previously employed by the plaintiffs, which representations were false and known by the defendants to be false, since there were no employees at the place of business of the plaintiffs and the plaintiffs were not unfair to organized labor; that such pickets approached prospective customers of the plaintiffs and told them that the plaintiffs’ restaurant was giving bad food, and that by patronizing

No exceptions appear in the record which raise any other question of law open for our further consideration.

The judgment should be affirmed, with costs.

(dissenting). The judgment should be reversed and the complaint dismissed. The issuance of an injunction in a case like this is positively forbidden by section 876-a of our Civil Practice Act, by the decisions of this court and by the decisions of the United States Supreme Court construing the free speech guaranty of the Constitution of the United States.

Plaintiff Loizides owned a restaurant. The other six plaintiffs were his employees. Defendant union tried to negotiate a collective bargaining agreement with owner Loizides. Loizides refused to negotiate. Beyond any doubt there was then and there a labor dispute. The union, believing — and surely not being without good reason for that belief — that it had a settled and absolute right to advertise to the public the grievance it claimed to have, began to picket the restaurant. The “ picket line ” consisted of just one picket. The Trial Justice has specifically found that the one-man picketing “ was at all times orderly and peaceful,” that “ no acts of violence have been threatened or committed by the defendant union,” that “ the picket on the picket Une * * * requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” If the picketing described in those findings, herein quoted verbatim, is unlawful, then picketing has been absolutely and completely outlawed in this State.

True, there are no findings that the dispute which concededly existed before the picketing began on April fifteenth and concededly continued until the partnership agreement was signed, held over and continued after the partnership had sprung into being on April twenty-second. But Loizides himself testified that he adopted the partnership plan to stop the picketing. What finding was necessary after that frank admission? There is no dispute of fact here. The injunction depends solely on an impossible construction of the law.

We are told that this action rests not on section 876-a, but on the principles of the common law. There is no point in reviewing the numerous decisions of this court in recent years denying the power to issue injunctions against peaceful, orderly picketing without threats or intimidation in bona fide labor disputes. Any common law of this State holding to the contrary must date back

Even if this injunction were not unlawful under section 876-a and under our decisions, early and late, even if there were no labor dispute and no case growing out of a labor dispute, this ban against peaceful picketing would still be violative of the Federal Bill of Rights. Most plainly is this pointed out in Bakery & Pastry Drivers & Helpers Local 802 v. Wohl ( 315 U. S. 769 ), where the Supreme Court noted ip. 774) that the New York courts had seemed to assume that the legality of the injunction followed from a determination that a labor dispute was not involved. “ Of course,” said the Supreme Court “ that does not follow: one need not be in a ‘ labor dispute ’ as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.” (See, also, Thornhill v. Alabama, 310 U. S. 88 , 100; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287 , 296-298; American Federation of Labor v. Swing, 312 U. S. 321 .) Nothing is now better settled than that picketing is an exercise^of the constitutional right of free speech, that it needs no authorization from the State, which may in proper case regulate picketing, but may never forbid it.

The Supreme Court decisions just cited make it unnecessary to deal extensively with Thompson v. Boekhout ( 273 N. Y. 390 ), wherein this court declared the absence of a labor dispute in a case where the owner of a small business decided to run it without any employees at all. The constitutional question was not there raised. Incidentally, this court later made plain that the Thompson v. Boekhout ruling was to be limited to its special facts, for in Boro Park S. L. P. Market, Inc. v. Heller ( 280 N. Y. 481 ) this court decided that a labor dispute did exist with defendant union though all those employed in plaintiff’s business were stockholders of plaintiff corporation. Here Loizides did not discharge his employees and thereafter do all the work himself. He conferred a new status on their labors by drawing up a partnership agreement, which,

We have not overlooked findings of fact numbered Fourth and Tenth. The first of these charges the picket with “ bearing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor, and also tend to create the impression in the eyes of the public that these pickets were previously employed by the plaintiffs.” Actually the picketing signs said nothing about a strike or a previous employment; they simply announced (according to plaintiff Loizides): “ This place is unfair to organized labor, please help us.” Such statements cannot be enjoined. (Wilner v. Bless, 243 N. Y. 544 ; Nann v. Raimist, 255 N. Y. 307 .) The Tenth finding is that the picket told prospective customers of the cafeteria that the cafeteria served bad food and that by patronizing it customers “ were aiding the cause of Fascism.” But there is another finding (Twenty-third) above referred to, which states positively that the picket “ requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” The Tenth and Twenty-third findings are obviously irreconcilable and, applying as we must the settled rule that, where there are conflicting findings, appellants get the benefit of the findings most favorable to them, we ignore the Tenth finding. Of course, even were that finding binding on us, the complaint would still have to be dismissed for non-compliance with section 876-a.

In this small lawsuit there is at hazard, just as surely as in great strifes that sweep the world, an ancient and inalienable right. If that right cannot find vindication in the courts, it has little chance elsewhere.

The judgment should be reversed, and the complaint dismissed, with costs.

Finch Lewis and Conway, JJ., concur with Rippey, J., Desmond, J., dissents in opinion in which Lehman, Ch. J., and Lotjghkan, J., concur.

Judgment affirmea.