Dolan Dining Co., Inc. v. Cooks' and Assistants' Union, Local No. 399, A. F. of L.

• Decision Date: 01 December 1939
• Parties: DOLAN DINING CO., Inc. v. COOKS' AND ASSISTANTS' UNION, LOCAL NO. 399, A. F. OF L., et al.
• Court: New Jersey Court of Chancery

9 A.2d 303

126 N.J.Eq. 445

DOLAN DINING CO., Inc.

v. COOKS' AND ASSISTANTS' UNION, LOCAL NO. 399, A. F. OF L., et al.

Court of Chancery of New Jersey.

Dec. 1, 1939.

Syllabus by the Court.

1. It is an elementary rule of law that courts do not and will not consider moot questions.

2. If the complainant had a good cause of action when it filed the bill, it is not to be deprived of costs by a cessation of defendants' wrongful conduct.

Suit by the Dolan Dining Company, Inc., against the Cooks' and Assistants' Union, Local No. 399, A. F. of L., and others to enjoin picketing, wherein the defendants moved that the court refuse to proceed with final hearing and should dismiss the bill on ground that the issues had become moot.

Decree dismissing bill and for costs and counsel fee to complainant advised.

Samuel H. Nelson, of Newark, for complainant.

Solomon Golat, of Newark, for defendants.

BERRY, Vice Chancellor.

This cause came on for final hearing before me pursuant to order of designation on Monday, November 20th, 1939, at which time counsel for the defendants moved for leave to file a supplemental answer setting up certain facts indicating that the issues between the parties were moot and that there was no reason or necessity for a final hearing on the merits. Copy of the proposed supplemental answer was served upon counsel for the complainant at 12 o'clock noon on Saturday, November 18th, 1939, and he was then given notice of the application for leave to file it. When the application was made counsel for complainant neither opposed nor consented to the filing of the supplemental answer but conceded the truth of the facts therein pleaded. The motion was accordingly granted.

The supplemental answer alleges that "the controversy between the parties has been terminated, the strike in existence at the time of the filing of the bill of complaint in this cause has ended, and the questions * * * have become moot issues".

Upon the filing of this bill an order imposing temporary restraint against picketing and other strike activities was advised (see opinion of this court, 124 N.J.Eq. 584, 4 A.2d 5) from which an appeal was taken to the Court of Errors and Appeals which reversed the order, as I understand it, upon purely factual grounds. 126 N. J.Eq. 321, 8 A.2d 809.

The supplemental answer further alleges that "In the time that elapsed between the entry of the restraining order by the Court and the determination by the New Jersey Court of Errors and Appeals, the individual defendants * * * secured employment elsewhere and have no further interest" in the controversy, and "have no further desire to carry on picketing or other strike activities of any sort". Also that the Union defendant and its business agent have no further interest in the controversy and have neither desire nor intention to continue picketing and other strike activities, and that neither of these defendants is now authorized to act in behalf of the other defendants—the former employees of the complainant.

Interrogation of counsel by the court, when hearing the application for leave to file the supplemental answer, disclosed the fact that the issues in this cause became moot while the appeal was pending and long before the decision of the Court of Errors and Appeals. Had either counsel called this fact to that court's attention the appeal would probably have been dismissed. Mitnick v. Furniture Workers' Union, 125 N.J.Eq. 142, 4 A.2d 277. Had these facts been called to the attention of this court prior to the day set for a final hearing much valuable time of both court and counsel could have been saved.

Upon the filing of the supplemental answer counsel for the defendants suggested that, the issues having become moot, under well recognized rules the court should refuse to proceed with the final hearing and that the bill should be dismissed. Counsel for the complainant did not oppose the suggestion but reserved the right to apply for counsel...