Reynolds v. Everett

Plaintiffs brought this suit in August, 1890. They were then engaged in the business of manufacturing and selling cigars in the city of Binghamton, and there were other manufacturers engaged in a similar business, and, with the plaintiffs, employed some 3,U00 persons to do the mechanical work of making cigars. The plaintiffs, employ about 400 persons, male and female, in the prosecution of their business, and the complaint alleges that, in order to have the business profitably conducted, it must be “run continuously, and; the stoppage of the business of manufacturing arbitrarily, without, regard to the interests of the business, inevitably results in a large loss to the business.” It is also alleged that on June seventeenth of that year “ almost all of the said employees in said manufactories, to the number of several thousand, and among them the employees, in plaintiffs’ said manufactory, to the number of two hundred (200), struck, as it is called — that is, discontinued working in said manu-factories, and refused to work for the plaintiffs, and for the proprietors of said other manufactories, unless they were paid an increased price for their work in accordance with the demand, which the plaintiffs and said proprietors of said manufactories-refused to give, as they could not reasonably afford, under existing business conditions, to grant said increased price demanded; and that since said June Utli, said striking employees' have, to a great-extent, continued in their refusal to work for plaintiffs and said other proprietors.” It is alleged that by reason thereof the operation of plaintiffs’ manufactory was practically suspended, and that the plaintiffs “ began to engage and employ other and new employees,. * * * and that as soon as plaintiffs began to obtain said new employees, and even for sometime before, the defendants, illegally and wrongfully conspiring, conniving and contriving, and confederating together with themselves, and with other persons whose-names are unknown to plaintiffs, to prevent the plaintiffs and said other manufacturers from carrying on their said business,.

I Upon the pleadings and affidavits tending to support the allega- [ tions thereof a preliminary injunction was granted. An application was made to dissolve the in junction, and, upon hearing the parties, the judge who granted the same refused to dissolve the injunction, but modified the injunction by an order made on the 9th of September, 1890. The issues between the parties were brought to trial on the 21th of June, 1891, at Special Term, and several matters of fact were found by the Special Term, and among them that the

The Special Term refused to find “ that the acts of defendants in combining to prevent the plaintiffs from carrying on their business as described in the findings of fact were illegal.” It also refused to find that “plaintiffs are entitled to an injunction restraining defendants from combining and acting in- pursuance of said combination to entice away plaintiffs’ employees.” It also refused to find “that plaintiffs are entitled to an injunction restraining defendants from combining and acting in pursuance of said combination to pre

There seems to have been no request made to find damages, or to award damages, to the plaintiffs in any specified amount. The effect of the decision for the defendants, and the judgment entered thereon, are to dissolve the injunction that was granted temporarily, although no formal language to that effect is found in the decision or the judgment. (Gardner v. Gardner, 87 N. Y., 14 ; Jackson v. Bunnell, 113 id., 220.) It may be said that reading the complaint in the light of the facts and the findings made, that the gravaman of the allegations therein is to set out, first, a conspiracy on the part of the defendants; and, secondly, an enticement of the servants or employees from the plaintiffs. In Place v. Minster ( 65 N. Y., 95 ) it was said: “ The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded.” When Dwight, J., used the language just quoted, he was dealing with an action at law brought for an alleged conspiracy to defraud the plaintiffs.

Actions brought for the purpose of recovering damages for enticing away from the services of the master a servant are treated as actions for a wrong. In Co wen’s Treatise (p. 194) it is said: “ Whenever a servant is enticed away from his master’s service, the master is entitled to this action for the loss which he sustains. If a servant be taken away from his service, he may also bring an action of trespass, alleging his special damages.” And it is added, in treating the subject, that “ the real gist of the action is the wrong.” In 1745 Lord Chief Justice Wills®, in delivering the opinion in Winsmore v. Greenbank (Willes Rep., 577), in an action for enticement, treated it as “ a special action on the case.”

Sir WilliaM BlaokstoNE, in treating of private wrongs in book 3, page 142, says : “ For every master has, by his contract, pui-chased, for a valuable consideration, the service of his domestics for a limited time; the inveigling or hiring his servants, which induces a breach of this contract, is, therefore, an injury to the master; and for that injury the law has given him a remedy by a special action

Appellants contend that “ the enticing away of an employee, even where there is no combination or conspiracy, is illegal and actionable,” and call our attention to Caughey v. Smith ( 47 N. Y., 244 ); Stuart v. Simpson ( 1 Wend., 376 ); Woodward v. Washburn ( 3 Denio, 369 ), and Haight v. Badgeley ( 15 Barb., 499 ). Stuart v. Simpson (supra), was an action on the case at law for enticement and harboring apprentices.

Woodward v. Washburn (supra) was an action on the case for the loss of services of a hired man, and Jewett, J., said, in delivering the opinion : “ It is a principle of the common law, that where a person sustains a loss or damage, by the wrong of another, he may have an action upon the case to be remunerated in damages; ” and he refers to Hart v. Aldridge (Cowper, 54), as “ an action of trespass on the case for enticing away several of the plaintiff’s servants who used to work for him in the capacity of journeymen shoemakers,” in which case it was found by the jury that two of the persons enticed “were employed as journeymen shoemakers by the plaintiff, but for no determinate time, but only by the piece; and liad, at the time of the trespass, laid, each of them, a pair of shoes unfinished; that the defendant persuaded them to enter into his service, and to leave these shoes unfinished, which they accordingly did; ” and it was finally held in that case that an action at law would lie.”

Haight v. Badgeley (supra) was an action for trespass “ guare clausum fregit” for enticing away a servant of the plaintiff, and it was held in that case, viz.: “ In .this State, no absolute property can be acquired in the person or personal services of an adult, by an executory contract; nor can such a contract be enforced by any criminal proceeding. The rule giving an employer a right of action for enticing away his servant, has not been overruled here, it seems; ” and in the course of the opinion delivered by HAND, P. J., he

While the facts appearing in the evidence and in the pleadings and findings in this case differ somewhat from those found in Johnston Harvester Company v. Meinhardt (supra), yet so far as this case rests upon the right of maintaining an action in equity, it is quite similar to that case and it seems to furnish an authority for refusing to support the contention of the appellants, that an injunction, permanent in its character, should have been granted by the Special Term at the time this cause was tried, by reason of the mat

In People v. Barondess ( 61 Hun, 515 ) a majority of the court seems to have been of the opinion, in considering the penal sections to which we have referred and others, that -the word “ property ” occurring in such legislative provisions “ would not include a man’s business.” We do not deem it necessary to express an assent to that doctrine for the purpose of determining the case now in hand. It. does not follow that if the combination and conspiracy in question were illegal or contrary to the provisions of the statute upon that

In McHenry v. Jewett ( 90 N. Y., 58 ) it was said that “ it is not sufficient to authorize the remedy by injunction; that a violation of a naked, legal right of property is threatened, there must be some special ground of jurisdiction, and, where an injunction is the final relief sought, facts which entitle the plaintiff to this remedy must be averred in the complaint.”

In Gilbert v. Mickle (4 Sandf. Ch. [357]), Chancellor Saotoed, in considering the cases in which equity would interfere, was called upon to determine whether an injunction should issue to restrain the placing of “ a placard ” paraded or posted in a public street, before the door of an auctioneer, cautioning strangers to beware of mock auctions, and he finally readied the conclusion “that the Court of Chancery will not interpose to restrain such placard by injunction, but will leave the party to his remedy at law.” And it was further held in that case that “ equity always interferes with reluctance for the protection of rights of property by injunction, when those rights are mingled with the administration of criminal jurisprudence.”

Our attention is called to Sherry v. Perkins ( 17 N. E. Rep., 307 ), in which case it appears there was a scheme by threats and intimidation to prevent persons in plaintiff’s employ from continuing in such employ, and, in pursuance of the scheme, the defendants “ caused a threatening banner to be carried in front of plaintiff’s shop, the effect of which was to deter persons from continuing to work for or engaging with plaintiff, and the latter’s business was thereby injured;” and in delivering the opinion in that case the court stated that the “banners were used more than three months before

In the case of New York, Lake Erie and Western Railroad Company v. Wenger (cited in a note, 24 Abb. N. C., 267 ) it appeared that there was a combination “ to go upon the premises of a railroad company to obstruct its business, and to prevent, by force or threats, its employees from performing their duties,” and it seems to have been held an unlawful assembling. The case differs from the one before us. It may be said that Walter v. Cronin ( 107 Mass., 555 ) supports the plaintiffs’ right to recover in an action at law for damages caused by the enticement, but it does not support the right to maintain an action in equity based upon facts such as are stated in the findings in the case before us.

Appellants call our attention to Dunsbach v. Hollister ( 49 Hun, 352 ), which is a case where a dealer in molding sand had deposited upon his own lot, adjoining that' of the plaintiff, a large quantity of sand, placing no covering over it, and so left that the wind would blow it over onto the house and premises of the plaintiff to his annoyance and discomfort. In that case it was held that the injury was of such a character as to be the source of recurring j>ersonal annoyance, discomfort and inconvenience in addition to the damage to property, and that, therefore, a case was presented that would not be adequately compensated in damages, and that an injunction should issue. The case is quite distinguishable from the one before us.

In Hutchins v. Smith ( 63 Barb., 252 ), which was a case to restrain gas and dust issuing from lime-kilns, it was found that the annoyance and injury were continuous, and to such an extent as to amount to a nuisance, and, therefore, a perpetual injunction to restrain the continuance of the nuisance was allowed. That case differs from the one before us.

In New York Central and Hudson River Railroad Company v. City of Rochester ( 127 N. Y., 594 ) it was held that a municipal corporation might be restrained from discharging sewage directly upon private lands, and a court of equity would take jurisdiction

Appellants call our attention to Adams v. Rivers ( 11 Barb., 890 ), which was an action of trespass at law, and it was held “ a person is a trespasser, who, instead of passing along on the sidewalk of a street, stops on it, in front of a man’s house, and remains there, using towards him abusive and insulting language.” The case tends to support the right to recover at-law for some of the acts specified in the findings before us, but contains nothing supporting the right to recover in an action in equity.

The case of the Tribune Association v. The Sun ( 7 Hun, 175 ) was one where the defendant was about to take possession of the plaintiff’s lot and to use the same in making repairs to its own property, and it was stated to be a case “ where irreparable injury may and probably will result from the threatened wrong,” (opinion of DaNiels, J., page 179), and, therefore, an injunction was allowed. And in Fox v Fitzsimons ( 29 Hun, 571 ), the defendant was excavating the plaintiff’s lot and erecting a building thereon whereby the foundations of the plaintiff’s house were damaged and the free access of light and air to his windows impeded and destroyed; an injunction was allowed as an exceptional case was presented. The general rule is that an injunction will not issue to restrain a trespass. (Murray v. Knapp, 62 Barb., 566 ; Howe v. The Rochester Iron Manufacturing Co., 66 id., 592 ; Murray v. Knapp, 42 How., 462 ; N. Y. and A. R. R. Co. v. N. Y., West Shore, etc., R. R. Co., 11 Abb. N. C., 386 .) Nor to prevent an aj>prehended trespass. (Hurlburt v. Banks, 1 Abb. N. C., 166 .) Nor where irreparable damage is not alleged and proved. (Brennan v. N. Y. C. and H. R. R. R. Co., 30 N. Y. St. Rep., 378 ; Mapes v. Charles, 8 N. Y. Supp., 665 .)

The rule is also stated in Campbell v. Seaman ( 63 N. Y., 569 ), where an exception to the rule was found to exist, and, in the course of the opinion in that case, it was said that whether an injunction should issue or not “ rests in the sound discretion of the court ” to which the facts of a particular case are presented.

In Mayor, etc., of Hudson v. Thorne (I Paige, 261), Chancellor Waleath said: “ It is no part of the business of this court (Court of Chancery), to enforce the penal laws of the State or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance. And it is nowhere alleged in this bill that the manufacture of pressed hay within the compact parts of the city of Hudson, in a building more than thirty feet square, is, in itself, a public nuisance.” In the complaint before us no allegation is found that the acts of the defendants are a public nuisance.

In Brandreth v. Lance (8 Paige, 24) it was held: “ The Court of Chancery has not jurisdiction to restrain the publication of a libel, by injunction, upon a bill filed by the party whose character or business will be injured by the publication.”

In Crooke v. The Brooklyn, Flushing mid Coney Island Railway Company (8 Week. Dig., 252), in the General Term of the second department, where the plaintiff sought to restrain the defendants from crossing a proposed bridge, it was said: “ The remedy of an injunction is not an appropriate one to enforce the payment of compensation for an injury.”

In the course of the opinion delivered by Dahfobth, J., in Troy and Boston Railroad Company v. Boston, Hoosac Tunnel and Western Railway Company ( 86 N. Y., 127 ), reviewing many antecedent cases he says: “And although the form of actions and suits, and the distinction between actions at law and suits in equity has been abolished, a party to entitle himself to the equitable remedy by injunction must still make such a case as would, while the distinction existed, have made an equitable cause of action. This is well settled,” and he cites numerous authorities in support of the proposition. (See, also, Mapes v. Charles, 8 N. Y. Supp., 665 .)

While section 603 of the Code of Civil Procedure provides for cases in which an injunction order may be granted, it also provides,

The result is, therefore, reached that the conclusion of the Special Term should be allowed to remain.

MARTIN, J., concurred.

I concur in affirmance on the ground that at the time of the trial the occasion for asking relief by injunction had passed and no claim was made1 for recovery of damages.

Judgment affirmed, with costs.