Opinion
Argued April 12, 1949
Decided June 2, 1949
Appeal from the Supreme Court, Appellate Division, First Department, GAVAGAN, J.
Michael F. Pinto and Benjamin D. Stein for appellant. George P. Halperin, Leon Dicker and Fred S. Weitzner for respondents.
While we would agree with much that is said by Judge DESMOND, we cannot overlook that this is not an appeal from a judgment enjoining certain conduct, but an appeal from an order denying appellant's application to modify an injunction entered by consent many years ago. The principles enunciated in the dissent have little if anything to do with the matter before us for the question posed is exceedingly narrow: whether the court below has abused its discretion in denying the application. The modification of an injunctive decree must rest upon a clear showing that the evils which justified the prohibition have vanished. No such proof is disclosed by this record. On the contrary, it is undisputed that violence and assault recurred many years after entry of the decree. Defendant did not prove — indeed did not undertake to prove — that "dangers, once substantial, have become attenuated to a shadow" ( United States v. Swift Co., 286 U.S. 106, 119). In those circumstances we cannot hold that the Appellate Division has abused its discretion, or that the rights of the union's members under the Federal Constitution have been violated ( Milk Wagon Drivers' Union v. Meadowmoor Dairies, 312 U.S. 287, 296). Absent those considerations, it cannot be questioned that this dispute presents a situation in which peaceful picketing of plaintiffs' customers to exert pressure upon plaintiffs would be permissible under the law of this State ( People v. Muller, 286 N.Y. 281). Section 876-a of the Civil Practice Act, which limits any "labor dispute" injunction to an effective period of not more than six months, took effect subsequent to the entry of the injunction here in question. We do not consider the propriety of the court's reference to the policy expressed in subdivision (b) of section 8 of the National Labor Relations Act, as amended by section 101 of the Labor Management Relations Act, 1947 (U.S. Code, tit. 29, § 158, subd. [b]).
The order of the Appellate Division should be affirmed, with costs.
I dissent and vote to reverse, and to modify the 1933 injunction so as to remove the ban against peaceful picketing of the business places of plaintiffs' customers. I agree with Justice SHIENTAG'S dissenting opinion in the Appellate Division, but, because of the difference between the jurisdiction of that court and ours, in such a situation, I comment further.
Ordinarily, the vacatur or modification of an injunction decree, originally entered on consent, would be discretionary with the Appellate Division, and its refusal so to modify would not, ordinarily, set up any question of law for our review. But a clear abuse by the Appellate Division of its discretion empowers us to review and requires us to reverse ( Bunim v. Bunim, 298 N.Y. 391; see cases cited by Judge CRANE at pages 13 and 14 of Jensen v. Union Ry. Co., 260 N.Y. 1). The order of the Appellate Division here appealed from was, in my view, totally unlawful since it deprived defendant union's members of their clear, plain constitutional rights.
The 1933 injunction was signed, on consent, at a time when defendant was charged with, and presumably was guilty of, violent picketing, and of boycott of plaintiffs' customers, a boycott considered illegal because it had as its object the coercion of plaintiffs to join a certain employer's association. The facts then existing presumably justified an injunction, even one so sweeping as to deny defendant's right of peaceful picketing, since such picketing as there was in 1933, was for an illegal objective. But long years have passed, and now, sixteen years later, the members of defendant union, because of what they or their officers (or their predecessor officers or members) did in 1933, must, says the Appellate Division, still be forbidden their rights as citizens — and presumably their successors will still be under the same ban in the year 1999, or 2049, if the union should last that long — and all because of what happened in 1933. (There is, it should be said, some showing here of illegal activity against plaintiffs by this union as late as 1938, but giving plaintiffs' affidavits every possible effect, it remains that at least since 1938, there has been no violation of public order or propriety by defendant.) How long must this union stay on probation?
That defendant union (as an original proposition aside from the 1933 injunction) had a right to picket plaintiffs' customers can hardly now be doubted ( People v. Muller, 286 N.Y. 281, and cases therein cited; see Schivera v. Long Island Lighting Co., 296 N.Y. 26). The Taft-Hartley Law's prohibitions (U.S. Code, tit. 29, § 158, subd. [b], par. [4]) obviously have no application here. If we are seeking for statutory guidance, we should find it in our own State law: section 876-a of the Civil Practice Act defines a "labor dispute" so as to include the situation now existing in this case, forbids an original injunction on the present facts of this case, and limits any "labor dispute" injunction to an effective period of not more than six months.
In my view, the further continuation of so much of this old injunction as forbids peaceful and lawful picketing, without any showing of any present danger of violence or other wrongs, is such a denial of defendant's members' rights as to be beyond the power of any court, and so, necessarily, an abuse of judicial discretion ( Matter of Bojinoff v. People, 299 N.Y. 145, 151).
LOUGHRAN, Ch. J., LEWIS, CONWAY, DYE, FULD and BROMLEY, JJ., concur in Per Curiam opinion; DESMOND, J., dissents in opinion.
Order affirmed.