Opinion
December, 1914.
George E. Ernest C. Brower (Almet R. Latson, of counsel), for motion.
Paulsen J. Rothenberg (Morris Rothenberg, of counsel), in opposition.
This is an application for an injunction during the pendency of a suit brought by the plaintiff, a voluntary unincorporated association composed of seventeen firms and corporations engaged in the manufacture and sale of shoes in the city of New York, boroughs of Brooklyn and Manhattan, and employing about 5,000 employees. The defendants are voluntary associations of the operators in the factories of the plaintiff's constituents, comprising local unions, and certain individual defendants are also impleaded.
The relief sought in the action is the perpetual restraint of the defendants from unlawful interference with the business of the plaintiff's constituents by means of acts of physical violence, intimidations, threats and abuse directed against them and their employees by the defendants and their members, whereby the defendants have coerced other employees of the plaintiff's constituents who were unwilling to join a strike called by the defendants, into leaving their employment, and by preventing other persons from accepting employment by the plaintiff's constituents to fill the vacancies thus created.
The plaintiff claims that the defendants have formed a combination, conspiracy or federation, with an unlawful purpose, and are utilizing unlawful means to accomplish that purpose.
The question presented to this court is whether the plaintiff association is entitled to an injunction pendente lite under the law as it is applicable and upon the facts as they are shown by the affidavits submitted.
The subject-matter of equitable jurisdiction is civil property and the maintenance of civil rights. Injunctions do not issue to prevent acts merely because they are immoral or illegal or criminal, but only in case the complainant's civil rights are being invaded. 22 Cyc. 757.
I think it may fairly be stated that the plaintiff is entitled to maintain an action for the restraint of an unlawful interference with, or an attempted invasion of, the rights of its several constituent members, when the acts involved would affect the civil rights or property of all the members, whatever might be the rule if the alleged unlawful acts affected only one or a few of such members (see Code Civ. Pro., § 1919); and I think, too, that the plaintiff's papers show that this action does affect the civil rights and interests of all the members of the plaintiff's association.
I have examined the voluminous papers submitted upon this motion with great care to ascertain whether the admitted facts would warrant the granting of the preliminary injunction. Not a little space has been consumed by both sides in the endeavor to prove that the plaintiff's constituents were maintaining open shops and the defendants were insist upon the shops being conducted as closed shops. This, however, has no very direct bearing upon the decision of this motion, for the reason that the plaintiff's constituents had a perfect legal right to insist upon conducting their shops as open shops ( People v. Marcus, 185 N.Y. 257), and, on the other hand, it was lawful for the defendants to refuse to work for the plaintiff's constituents unless in closed shops. Jacobs v. Cohen, 183 N.Y. 207.
The acts complained of, if they were committed, would clearly be invasions of the rights of the plaintiff's constituents under the authorities cited upon the brief of the learned counsel for the plaintiff, and even under those cited in behalf of the defendants. Admitting all the defendants' contentions as to the defendants' legal rights, under Point I of their brief, the plaintiff would be entitled to an injunction restraining the unlawful acts on the part of the defendants, provided such acts are admitted or found to exist, because such acts are far in excess of the defendants' rights of striking or of peaceful picketing or the other classes of lawful acts permitted by law, as laid down in the numerous decisions which have been made by the courts in this and other states. See People v. Davis, 159 A.D. 464. The defendants, by their answering affidavits and their verified answers, have raised an issue as to the commission of many but not all of the alleged unlawful acts. In my opinion, however, the papers submitted sufficiently establish, for the purpose of the present application and until the issues can be determined with more accuracy and deliberation upon the trial, the existence of an unlawful conspiracy on the part of the defendants by proof of the adoption or ratification by them of the unlawful acts of the members of the unions.
The injunction asked for is broader in its terms than the plaintiff is entitled to, and the order to be made hereon cannot follow the notice of motion.
Ordered accordingly.