Opinion
Argued January 10, 1944
Decided May 25, 1944
Appeal from the Supreme Court, Appellate Division, First Department, WALTER, J.
Alfred J. Talley and Abraham Hornstein for appellants.
Louis Connick and Albert C. Bickford for Paramount Pictures, Inc., respondent.
Louis Nizer and Walter S. Beck for Austin C. Keough and others, respondents. Stephen Callaghan, Edward Lazansky and Thomas A. Gaffney for Neil F. Agnew and others, respondents.
Lester Kissel for Percy H. Johnston, respondent.
Francis S. Bensel and W. Frederick Knecht for William S. Gray, Jr., respondent.
Bruce Bromley and G.S. Collins for Henry R. Luce, respondent.
This stockholders' derivative action was brought in behalf of Paramount Pictures, Inc., to compel its officers and directors to repay to its treasury sums they had paid therefrom to labor union officials. Plaintiffs invoke the following provision of Penal Law, section 380: "A person who gives or offers to give any money or other thing of value to any duly appointed representative of a labor organization with intent to influence him in respect to any of his acts, decisions, or other duties as such representative, or to induce him to prevent or cause a strike by the employees of any person or corporation, is guilty of a misdemeanor * * *."
Upon findings made and affirmed the case is this: The payments in question were coerced by threats of the payees that in the contrary event they would call a strike of the employees of Paramount Pictures, Inc.; the threatened strike would have been unlawful and was calculated to destroy the nation-wide business of the corporation. Special Term said: "There is not the slightest evidence that this duly appointed representative of a labor organization was or even pretended to be under any legal duty to cause a strike. He did not ask for pay to influence him in the performance of any duty, real or pretended. He simply threatened to do unlawful injury to Paramount, and other similar companies, by calling a strike or strikes he was under no duty to call, and the only part his position as a representative of a labor organization played in the matter was that it constituted such a source of power as to give meaning to his threat and thereby induce consent to the giving of the money he demanded."
In the judgment of the courts below, the payments thus procured were not embraced by section 380 of the Penal Law. We think this ruling was right. Such a threat is a felony (Penal Law, §§ 851, 852) and such a payment is deemed to be so far involuntary as to raise an obligation to make restitution thereof. (See, Woodward, The Law of Quasi Contracts, § 218; 79 A.L.R. 655, 656.) In People v. Shakun ( 251 N.Y. 107) we said: "It is well settled that a criminal statute should narrowly be construed; that acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal" (p. 113. See, too, People v. Benc, 288 N.Y. 318, 323; People v. Fein, 292 N.Y. 10, 14). In that view, we are not ready to impute to section 380 of the Penal Law the meaning that one who is victimized by an extortion of the kind in question should on that account suffer loss of his liberty or property.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY and DESMOND, JJ., concur; RIPPEY and THACHER, JJ., taking no part.
Judgment affirmed.