People v. Muller

• Decision Date: 29 July 1941
• Citation: 36 N.E.2d 206,286 N.Y. 281
• Parties: PEOPLE v. MULLER et al.
• Court: New York Court of Appeals Court of Appeals

286 N.Y. 281

36 N.E.2d 206

PEOPLE

v.MULLER et al.

Court of Appeals of New York.

July 29, 1941.

Appeal from Court of Special Sessions of City of New York, Appellate Part.

Hans Muller and Vincent Teofilo were convicted of disorderly conduct tending to a breach of the peace in violation of Penal Law, s 722, subd. 2, in the Magistrates' Court of the City of New York, and from a judgment of the Court of Special Sessions of the City of New York, Appellate Part, entered on August 22, 1940, 174 Misc. 872, 21 N.Y.S.2d 1003, which reversed such conviction, the People of the State of New York, by permission, appeal.

Affirmed.

FINCH, RIPPEY, and CONWAY, JJ., dissenting. William O'Dwyer, Dist. Atty., of Brooklyn (Henry J. Walsh and J. Vincent Keogh, both of Brooklyn, of counsel), for appellant.

Louis Waldman, Solomon Jacobson, and Samuel Duker, all of New York City, for respondents.

LEHMAN, Chief Judge.

The defendants have been convicted upon a charge of ‘Disorderly conduct tending to a breach of the peace, in violation of section 722, subdivision 2, of the Penal Law (Consol.Laws, c. 40).’ Some testimony was taken at the hearing of the charge, but by stipulation all the testimony was expunged from the record and the parties stipulated the facts pertaining to the complaint which were to be taken ‘in lieu of the sworn testimony.’ We quote the facts as stipulated in full:

‘1. The complainant, Ben Berkowitz, is the owner of a retail haberdashery store at 1587 Pitkin Avenue, Brooklyn, County of Kings;

‘2. That on or about November 26th, 1935, the complainant and the National Wiring & Protective Co. Inc. entered into written agreements which are here offered in evidence at Exhibits 1 and 2;

‘3. The National Wiring & Protective Co. Inc. have made agreements with other subscribers similar to the one represented by Exhibits 1 and 2;

‘4. That on or about January 3, 1940, the defendant Andrew Fosgreen came to the store of the complainant and had a conversation with the complainant, in the course of which he told him that the union and the employees were on strike against the National Wiring & Protective Co. Inc., and that they would put out pickets in front of his store, and that the maintenance of the burglar alarm system was unfair to Local No. 3 unless the complainant obtains union service on that system;

‘5. That two days later, on January 5, 1940, the defendants Hans Muller and Vincent Teofilo appeared in front of the complainant's premises, each bearing a sign attached to his person, reading substantially as follows: ‘Maintenance of Burglar Alarm in this store unfair to Local No. 3, International Brotherhood of Electrical Workers Union, A. F. of L.;’

‘6. That the defendants Hans Muller and Vincent Teofilo picketed in an orderly and peaceful way;

‘7. That all three defendants are members of the International Brotherhood of Electrical Workers Union, and are on strike;

‘8. That there is a labor dispute over wages and hours between the International Brotherhood of Electrical Workers Union, Local No. 3, the employees, and the National Wiring & Protective Co. Inc.;

‘9. That no labor was performed on the burglar alarm system installed at the complainant's premises since January 1, 1940.’

The stipulated facts thus establish beyond dispute that the defendants are members of a labor union engaged in a labor dispute with the National Wiring and Protective Co., Inc., over wages and hours of its employees. The National Wiring and Protective Co., Inc., has installed in the complainant's place of business an electric burglar alarm apparatus and has agreed to maintain the apparatus in serviceable condition, and the union has demanded that the complainant obtain union service on that system. The defendants have picketed in an orderly and peaceful way. Their conduct has not been disorderly in any way and has not tended towards a breach of the peace, unless peaceful picketing with a sign calculated to inform the public that the burglary alarm system installed in the complainant's store is not being maintained by the union of which the defendants are members is unlawful, and without more constitutes disorderly conduct.

The picketing is for the purpose of promoting the lawful interests of a labor union in a labor dispute. Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910, 116 A.L.R. 477. There is here a ‘labor dispute’ as that term is defined in section 876-a of the Civil Practice Act even under the restrictive interpretation of the scope of the statute by this court in Opera on Tour, Inc. v. Weber, 285 N.Y. 348, 34 N.E.2d 349. Even were that not true, however, peaceful picketing by the members of a union in front of a business served by the union is the exercise of a right of free speech guaranteed by the Constitution of the United States as construed by the Supreme Court of the United States. American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, decided February 10, 1941; Bakery and Pastry Drivers and Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 61 S.Ct. 1108, 85 L.Ed. decided by the Supreme Court of the United States June 2, 1941. Construction of the Federal Constitution by the Supreme Court of the United States is binding on all State courts.

The order should be affirmed.

FINCH, Judge (dissenting).

May a storekeeper suffer damages through loss of business and be annoyed, disturbed, interfered with and offended by having his store picketed because there is used therein an electrical burglar alarm installed four years before with an incidental agreement by the supplier to keep the machine in order.

Defendants were convicted of having violated the Penal Law (s 722), defining disorderly conduct, in that they picketed the retail haberdashery store of complainant in such a manner as might occasion a breach of the peace. The complainant was a consumer who, four years before the acts of picketing herein complained of, had contracted with the National Wiring and Protective Company, Inc. (hereinafter called National) for the installation of a burglar alarm apparatus for the store premises together with an incidental agreement whereby the storekeeper paid a monthly charge of $7.50 for the use of the apparatus and to keep the same in serviceable condition. The storekeeper on his part agreed not to repair, or to permit any other person to tamper with, or repair this apparatus. This contract for the acquisition of the burglar alarm was deemed renewed from year to year unless notice was given otherwise, was in effect at the time of the picketing and was silent as to whether union or non-union help was to service the alarm. At the time of the picketing in question, this contract was binding on both parties and was not up for renewal.

On January 3, 1941, the owner of the store was notified that the employees of National were on strike and that, unless the services of the members of the International Brotherhood of Electrical Workers (hereinafter called the union) were engaged to service this burglar alarm apparatus, the store would be picketed. The haberdashery store was not in the same trade or occupation as National, no members of the union were employed by the complainant, and there were no labor disputes between complainant and any of his own employees. Complainant, therefore, was not a party to the labor dispute and did not sell in his store, for profit or otherwise, any of the articles manufactured by National. The only relationship between complainant and National was through the acquisition by the storekeeper of the burglar alarm apparatus with the incidental right to have it kept in serviceable condition through the payment of a small monthly charge. Also no repair work to the burglar alarm apparatus was being done at the time of the picketing, nor has been done since the inception of the strike. Nevertheless, the two defendants, as pickets, appeared in front of the store each bearing a sign reading ‘Maintenance of Burglar Alarm in this store unfair to Local No. 3, International Brotherhood of Electrical Workers Union, A. F. of L.’

The business of National is to market burglar alarms by means of installing the apparatus with an incidental service agreement to keep the same in working order. Once the apparatus is installed, it is in continuous use on the premises, and no right of resale exists in the owner of the premises. Thus in the case at bar the storekeeper was the ultimate consumer of this property. Cf. People v. Bellows, 281 N.Y. 67, 22 N.E.2d 238;Canepa v. ‘John Doe,’ 277 N.Y. 52, 12 N.E.2d 790.

We are thus brought to a consideration of the fundamental question involved, namely, whether picketing of a storekeeper, who has acquired and is now using as an ultimate consumer a burglar alarm apparatus, is lawful. May this complainant be coerced into taking sides in a labor dispute in another industry to which he was not a party, in which he has no interest, and where no legitimate action of his could dispose of the controversy? If the complainant had submitted to the coercion of the union and its members by allowing them to service the burglar alarm system, he would have subjected himself to liability for damages for breach of contract. On the other hand, if he refused, his business and trade would suffer serious jeopardy by the continued picketing of his premises. Looking at the matter realistically, the parading of pickets in front of a retail store, even though the conduct of the picket is peaceful and orderly, seriously interferes with the business of the store. There are many persons among the population who, because of personal convictions, will not cross a picket line besides many timid persons who fear bodily harm or other retaliation, and hence choose another store.

Under the well-established policy of this State, embodied in the Constitution, statutes, and judicial decisions, the right of working men to organize to better their conditions has long been...