New York City Transit Authority v. Loos

• Decision Date: 13 December 1957
• Citation: 170 N.Y.S.2d 266,9 Misc.2d 492
• Parties: NEW YORK CITY TRANSIT AUTHORITY, Plaintiff, v. Theodore LOOS, Alexander S. McMillan, Vincent T. O'Brien, and Walter J. Grimes, individually and as President, Vice President, Secretary-Treasurer, and Recording Secretary, respectively, and as members of Motormen's Benevolent Association, Inc., Motormen's Benevolent Association, Inc., a Membership Corporation, J. D. Anthony, G. C. Atwell, J. Carin, Norman S. Cornell, David J. Daly, Albert Heller, Augustus J. Johnson, Edwin O. Kiser, John F. J. Leary, Raymond J. Neary, and J. M. Spooner, individually, and as committeemen and members of Motormen's Benevolent Association, Inc., Andrew Chepil, Giovanni Del Vecchio, Daniel Dunne, George Gierak, John Gill, James R. Johnstone, Walter J. Jordan, James Matera, Joseph McGinty, Frank Sasso, Henry Siock, Frank Zelano, George Vaupel, Robert Harriston, Pat Conway, James Healy, Julian Mitchel, Martin Patterson, John McGuire, Walter Noonan, Tim McCarthy, Thomas Lumkin, William Golia, Joseph LoPippiero, Edward Gorevan, and Jack Roth, individually, and as members of Motormen's Benevolent Association, Inc., and John Doe, Richard Roe, and all other persons employed by the plaintiff under the title of 'Motorman', Defendants.
• Court: New York Supreme Court

Page 266

170 N.Y.S.2d 266

9 Misc.2d 492

NEW YORK CITY TRANSIT AUTHORITY, Plaintiff, v. Theodore LOOS, Alexander S. McMillan, Vincent T. O'Brien and Walter J. Grimes, individually and as President, Vice President, Secretary-Treasurer, and Recording Secretary respectively, and as members of Motormen's Benevolent Association, Inc., Motormen's Benevolent Association, Inc a Membership Corporation, J. D. Anthony, G. C. Atwell, J Carin, Norman S. Cornell, David J. Daly, Albert Heller, Augustus J. Johnson, Edwin O. Kiser, John F. J. Leary, Raymond J. Neary, and J. M. Spooner, individually, and as committeemen and members of Motormen's Benevolent Association, Inc., Andrew Chepil, Giovanni Del Vecchio, Daniel Dunne, George Gierak, John Gill, James R. Johnstone, Walter J. Jordan, James Matera, Joseph McGinty, Frank Sasso, Henry Siock, Frank Zelano, George Vaupel, Robert Harriston, Pat Conway, James Healy, Julian Mitchel, Martin Patterson, John McGuire, Walter Noonan, Tim McCarthy, Thomas Lumkin, William Golia, Joseph LoPippiero, Edward Gorevan, and Jack Roth, individually, and as members of Motormen's Benevolent Association, Inc., and John Doe, Richard Roe, and all other persons employed by the plaintiff under the title of 'Motorman', Defendants.

Supreme Court, Special Term, New York County, Part I.

Dec. 13, 1957.

Daniel T. Scannell, New York City (Helen R. Cassidy, New York City, Edward L. Cox, Jr., Brooklyn, of counsel), for plaintiff.

Waldman & Waldman, New York City, for defendants.

FRANCIS X. CONLON, Justice.

This is an application by the New York City Transit Authority to adjudge Frank A. Zelano, executive secretary of Motormen's Benevolent Association, Inc., guilty of contempt of court and to punish him therefor. The contempt charged is based upon Zelano's alleged activities in connection with the pending subway strike, which are claimed to violate an order of Mr. Justice Lupiano, dated July 27, 1956. Zelano makes a cross motion for a jury trial of the contempt charge.

Zelano's claim that he has a statutory right to a jury trial is based upon the provision of sections 753-a of the Judiciary Law and 882-a of the Civil Practice Act. These sections do confer a right to a jury trial where the alleged contempt arises out of a 'labor dispute', as defined therein. There is, however, no 'labor dispute', within the meaning of the sections above referred to, because the controversy is between public employees and their government. In granting the injunction order upon which the present contempt charge is based, Mr. Justice Lupiano held that the provisions of section 876-a of the Civil Practice Act, imposing certain requirements where injunctive relief is sought in a 'labor dispute' are not applicable to 'these public employees' (New York City Transit Authority v. Loos, 2 Misc.2d 733, at page 742, 154 N.Y.S.2d 209, at page 218). The order was affirmed by the Appellate Division, 3 A.D.2d 740, 161 N.Y.S.2d 564, which overruled the claim that a 'labor dispute' was involved. The reasoning of Mr. Justice Lupiano is equally applicable to sections 753-a of the Judiciary Law and 882-a of the Civil Practice Act. The cross motion for a jury trial is accordingly, denied.

There remains for consideration the question whether the proof offered by the Transit Authority establishes that Zelano violated the provisions of Mr. Justice Lupiano's order. That order enjoined and restrained Zelano and others 'from instigating, promoting, or carrying on a strike or other work stoppage of employees of the plaintiff * * * or engaging in any action of a similar nature or * * * attempting or directing the taking of any action which might cause any employee of the plaintiff * * * to discontinue working for the plaintiff'. The Transit Authority has adduced evidence that on December 8, 1957 Zelano, after a meeting of the members of the Motormen's Benevolent Association, Inc. had been called to order by its president, Theodore Loos, took over the chairmanship of the meeting; that he announced that the officers of the organization would be 'bound by any decision that the organization might make'; that he stated that there were three causes of action available to the members: (1) to boycott a planned labor election to be held on December 16, (2) to combine with...