People v. Friedlander

Citation280 N.Y. 437,21 N.E.2d 498
PartiesPEOPLE v. FRIEDLANDER et al.
Decision Date31 May 1939
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Morris Friedlander and others were convicted in the Court of Special Sessions of the City of New York of the crime of conspiracy and also of violating section 220 of the Labor Law, Consol.Laws, c. 31, and they appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered January 9, 1939, which modified and affirmed as modified the judgments of the Court of Special Sessions, 255 App.Div. 645, 8 N.Y.S.2d 887.

Judgment of the Appellate Division so far as appealed from reversed, judgment of the Court of Special Sessions convicting defendants on conspiracy charges reversed, and conspiracy charges of information dismissed.

FINCH and RIPPEY, JJ., dissenting in part. Stephen Callaghan and William W. Kleinman, both of Brooklyn, Robert Daru, of New York City, and David F. Price and Maurice Edelbaum, both of Brooklyn, for appellants.

John J. Bennett, Jr., Atty. Gen. (John C. Crary and Benjamin Heffner, both of New York City, of counsel), for the People.

CRANE, Chief Judge.

Section 220 of the Labor Law (Consol.Laws, c. 31) provides that eight hours shall constitute a legal day's work for all classes of employees in this State except those engaged in farm and domestic service. Each contract to which the State or municipal corporation is a party shall contain a stipulation that no laborer shall be permitted or required to work more than eight hours in any calendar day. Subdivision 3 of this section provides the wages:

“3. The wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined. * * *.

“It shall be the duty of the fiscal officer, as defined in this section, to ascertain and determine the schedule of wages to be paid workmen, laborers and mechanics on each such public work, prior to the time of the advertisement for bids, and such schedule of wages shall be annexed to and form a part of the specifications for the work. * * *.

“Any person or corporation that wilfully pays after entering into such contract, less than such stipulated wage scale as established by the fiscal officer shall be guilty of a misdemeanor and upon conviction shall be punished for such first offense by a fine of five hundred dollars or by imprisonment for not more than thirty days, or both fine and imprisonment; * * *.”

A conspiracy is a crime defined in article 54 of the Penal Law (Consol.Laws, c. 40), section 580: If two or more persons conspire to commit a crime, or to commit any act injurious to the public health or for the perversion or obstruction of justice, or the due administration of the laws, each of them is guilty of a misdemeanor, punishable as ordinary misdemeanors. These two crimes are separate and distinct, and the punishment is different. A person who fails to pay the prevailing rate of wages may be punished by a fine of not more than five hundred dollars, or an imprisonment for not more than thirty days. A person who is guilty of a conspiracy may be punished by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than five hundred dollars or both (Penal Law, § 1937).

These defendants were tried and convicted of a conspiracy to violate section 220 of the Labor Law, that is, of a conspiracy to pay less than the prevailing rate of wages, and they have been sentenced to imprisonment in excess of the time provided for the violation of the Labor Law. This appeal brings up for review, therefore, not the question whether any of these parties failed to pay the prevailing rate of wages, or violated the Labor Law, but whether they conspired or agreed together to accomplish this purpose. In this connection we must also read section 583 of the Penal Law: “No agreement except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act beside such agreement be done to effect the object thereof, by one or more of the parties to such agreement.”

These defendants had contracts, or employed labor to work on contracts, for “painting and alteration repair work” on public schools in the borough of Brooklyn, city of New York. That some of them paid less than the rate fixed by the Comptroller, or the “prevailing rate,” as it is called, appears from the evidence; that they conspired to do so, or entered into a conspiracy to violate the Labor Law, as charged in the information, is lacking of proof. We, therefore, turn to the record to analyze the evidence as to each which may bear in the slightest way upon an agreement, a federation or combining together to violate this law.

The Brooklyn and Queens Contractors Association was an organization of contractors who are specialists in doing painting on public works, including public schools. Their organization was no different than a labor organization, and its formation was perfectly legal. There was nothing in and about the association in itself which was illegal. Most of these defendants are members of this organization. This seems to be the principal link in the conspiracy, but of course by itself forms no conspiracy. Unless the members of this organization did something more than join the association, they are not guilty of the crime charged.

Evidence of Conspiracy as against Friedlander.

Most all of the appellants are members of the contractors' association; they were all engaged in the same business as contractors, in what respondents claim to be a specialized type of work-doing painting for public works. The fact that appellants belong to this association cannot alone convict them of the conspiracy charged, when there is an absence of proof that the organization was formed, or was operated for the criminal purpose of subverting the provisions of the Labor Law. The proof in this case contradicts the hypothesis that the organization was conducted for any such purpose. It is noteworthy that, while many contractors belonging to the association were joined in the indictment, at least one of them was discharged by the courts below as having no part in the alleged conspiracy.

The meetings of the association were open to persons other than members; they were attended by subcontractors who were desirous of making contacts with the members of the association; and at no time was there any discussion about agreeing to pay the prevailing rate of wage. The secretary of the association, Lawrence Berson, was called by the People to testify as to the membership of the association, but he was not asked to tell what took place at the meetings. The proof indicates that Friedlander had at one time represented the organization in conferring with the National Recovery Act authority to secure a better relationship between employers and employees in the painting trade. The evidence introduced by the People indicates that these contractors were rivals, and that the bidding for the contracts was competitive. There is nothing to indicate that these contractors had determined upon preconcerted action to control the bidding and the price paid for labor in the fulfillment of the contracts. In fact, quite the contrary is evident, not only in the bidding but also in the payments made to the laborers by the different contractors. The proof indicates that the amount paid the employees varied considerably, ranging from five to seven or even nine dollars per day, not only as between employees of different contractors, but also as between the employees of the same contractor.

The most effective testimony concerning the criminal nature of the contractors' association was that of Samuel Freeman, the secretary and treasurer of the District Council of the Painters' Labor Union. He testified that in May, 1936, he had a conversation with Adolph Unger, an alleged conspirator whose conviction was reversed by the court below. Over objection and exception, Freeman, who was not a defendant, said that Unger had told him that he could not complete on school work and pay union wages, because the contractors had an association, of which he was also a member, and that this association conducted its business on a “racket basis,” and he told me that this association meets every week, decides, discusses policies about their work and every member of the association is to pay four per cent of the net price of the contract as protection against the union. Mr. Unger told me that due to this protection it is impossible for him, as one who wants to be a legitimate employer and employ union labor, to take any work. He told me that he thinks that it is about time that the union, and I as the secretary of the union, should do something about it, so as to break up this racket and create a condition whereby the legitimate employers should be able to do work and employ union labor and pay them the prevailing rate of wages, the union rate of wages.”

This hearsay evidence, directly contradicted by Hyman Tamaroff, who was a member of the union, and present when the conversation took place between Unger and Freeman, was inadmissible. These gratuitous remarks of Unger were made, if made at all, as comments on the conspiracy, and not at all in furtherance thereof. Besides, he has been found to be no conspirator himself. His statements could not then be binding on Unger's alleged co-conspirators, and they are not material as admissions by Unger here, as the information against him was dismissed by the Appellate Division. This and other hearsay testimony given by Freeman was the strongest evidence on the record concerning the criminal purposes of the association. When combined with the other testimony concerning the connection of the association with the Buggsey Goldstein gang, which the Appellate...

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2 cases
  • Locke v. Pembroke
    • United States
    • New York Court of Appeals
    • May 31, 1939
    ...take the complaint and pleading of plaintiff as we find them and hold that the complaint, on its face, does not state a cause of action. [21 N.E.2d 498] The judgment should be affirmed, with costs.LEHMAN, HUBBS, and LOUGHRAN, JJ., concur with CRANE, Ch.J.RIPPEY, J., dissents in opinion in w......
  • People v. Winter
    • United States
    • New York Court of Appeals
    • July 29, 1942
    ......People v. Miles, 123 App.Div. 862, 108 N.Y.S. 510, affirmed 192 N.Y. 541, 84 N.E. 1117. Nevertheless, more must be shown than that he is guilty of the substantive act. People v. Friedlander, 280 N.Y. 437, 21 N.E.2d 498. The prosecutor points to this statement of law in People v. Van Tassel, 156 N.Y. 561, 564, 565,51 N.E. 274, 275: ‘A conspiracy may be proved by circumstanial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the ......

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