Stillwell Theatre, Inc. v. Kaplan

• Decision Date: 19 July 1932
• Citation: 182 N.E. 63,259 N.Y. 405
• Parties: STILLWELL THEATRE, Inc., v. KAPLAN. ROSEKAY AMUSEMENT CORPORATION v. SAME. WINDSOR CIRCUIT CORPORATION v. SAME.
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 405

182 N.E. 63

STILLWELL THEATRE, Inc.,

v.KAPLAN.

ROSEKAY AMUSEMENT CORPORATION

v.SAME.

WINDSOR CIRCUIT CORPORATION

v.SAME.

Court of Appeals of New York.

July 19, 1932.

Actions by the Stillwell Theatre, Incorporated, by the Rosekay Amusement Corporation, and by the Windsor Circuit Corporation, respectively, against Sam Kaplan, as president of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators' Union of the United States and Canada, Local 306. From a judgment of the Appellate Division (235 App. Div. 738, 255 N. Y. S. 715), affirming judgments of the Special Term for plaintiffs on the merits (140 Misc. 142, 249 N. Y. S. 122), defendant appeals by permission of the Appellate Division.

Reversed, and complaints dismissed.

O'BRIEN, J., dissenting.Appeal from Supreme Court, Appellate Division, Second department.

Charles H. Kelby, Maurice Deiches, and Abraham K. Kaufman, all of New York City, for appellant.

William F. McNulty, Harold R. Medina, and Joseph A. Teperson, all of New York City, for respondents.

POUND, C. J.

These are labor cases in which injunctions have been granted at the suit of proprietors of moving picture theaters, enjoining defendant during the existence of contracts between the Empire State Motion Picture Operators' Union, Inc., and each of the respective plaintiffs from doing any act or acts calculated to induce or cause a breach of such contracts; from picketing and patrolling the streets in front of or near the respective theaters, and from committing any act or acts which are calculated to or apt to harm, harass, or embarrass the respective plaintiffs in the conduct of their business, and which are calculated to cause persons desiring to enter the theaters to refrain from so doing; from exhibiting any sign or signs and distributing any notices in front of or near said theaters; from suggesting to any person or persons the boycotting of plaintiffs' business; from interfering in any manner above set forth or in any other manner or by any other means with the business, custom, or trade of the plaintiffs, or making any false statements respecting the plaintiffs or the plaintiffs' business; from accosting, coercing, intimidating, or in any manner interfering with persons employed by the plaintiffs or seeking to enter their employ, from entering or continuing in such employment, or doing any other illegal act in reference thereto.

The word ‘defendant,’ as hereinafter used, refers to labor union Local 306.

The real controversy is between Local 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators' Union of the United States and Canada, affiliated with the American Federation of Labor, and a member of the State Federation of Labor and of the Central Trades and Labor Council of Greater New York and the Empire State Motion Picture Operators' Union, Incorporated, which is not affiliated with those organizations nor with any other labor union or body. Each plaintiff made a contract with the latter union whereby plaintiff is obliged to employ none other than members of that union as motion picture operators at such plaintiff's theater, which contract ran from September 1, 1930, to August 31, 1931. Defendant picketed plaintiffs' theaters with a sign which read: ‘Owners of this theatre refuse to employ members of Motion Picture Operators' Union Local 306, affiliated with the American Federation of Labor.’ The picketing was peaceful, not accompanied by any acts of violence, trespass, or intimidation, and the sign truly stated the fact. Unquestionably defendant in picketing these three theaters was actuated by a desire to improve labor conditions as to wages, hours, number of employees, and conditions of work, although incidental disadvantage to the employer might result. ‘Resulting injury [from lawful picketing] is incidental and must be endured.’ Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263, 157 N. E. 130, 133.

While the trial court made findings in all three actions that a sign printed in Jewish characters and carried by the pickets was misleading in that it conveyed the idea that union labor was not employed on the premises and also that the purpose of the picketing was in part to destroy plaintiff's business, the judgment was based solely on the ground that the picketing was illegal because its purpose was to induce or cause a breach of the contract between the plaintiffs respectively and the rival union. The Appellate Division, unanimously affirming the judgment, rested its decision on the same ground. It said: ‘The evidence amply justified the finding that the Empire State Motion Picture Operators' Union is a bona fide labor union; that there were valid, binding, and subsisting contracts of employment for definite periods of time between the plaintiffs and that union at the time the defendant conducted its picketing of the theaters of the plaintiffs, and that this picketing was conducted with knowledge on the part of the defendant of the existence of such contracts. Such orderly picketing with truthful placards was wrongful, although the means employed were otherwise lawful, because such acts were indulged in to attain a wrongful and therefore an unlawful purpose, to wit, the breach of contracts of employment for fixed and definite periods of time.’ 235 App. Div. 738, 255 N. Y. S. 715, 716.

The Court of Appeals has for many years been disposed to leave the parties to peaceful labor disputes unmolested when economic rather than legal questions were involved. The employer, if threatened in his business life by the violence of the unions or by other wrongful acts, might have the aid of the court to preserve himself from damage threatened by recourse to unlawful means, but the right of the workmen to organize to better their condition has been fully recognized. The fact that such action may result in incidental injury to the employer does not in itself constitute a justification for issuing an injunction against such acts. The interests of capital and labor are at times inimical and the courts may not decide controversies between the parties so long as neither resorts to violence, deceit, or misrepresentation to bring about desired results. National Protective Ass'n of Steam Fitters & Helpers v. Cumming, 170 N. Y. 315, 63 N. E. 369,58 L. R. A. 135, 88 Am. St. Rep. 648;Paine Lumber Co. v. Neal, 244 U. S. 459, 471, 37 S. Ct. 718, 61 L. Ed. 1256;Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661. Acts must be legal but they may be legal or illegal according to circumstances.

The case of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461, has often been cited as authority for the proposition that inducements of a breach of contract for a definite term of employment are illegal, even in the case of solicitation by groups of laborers, but, as the Supreme Court of the United States said of that case in American Steel Foundries v. Tri City Central Trades Council, 257 U. S. 184, 211, 42 S. Ct. 72, 79, 66 L. Ed. 189, 27 A. L. R. 360, ‘the unlawful and deceitful means used [to molest the plaintiff rather than to better the fortunes of the worker] were quite enough to sustain the decision of the court without more.’ Cf. Lamb v. S. Cheney & Son, 227 N. Y. 418, 125 N. E. 817. It has never been held by this court that a labor union is without justification in fairly setting forth its claims in a controversy over terms and conditions of employment by sign, handbill, or newspaper advertisement as a legitimate means of economic coercion, nor does the Hitchman Case so hold, nor is that case a final authority on this point concerning the laws of New York. Paine Lumber Co. v. Neal, supra.

The law of the state of New York, as declared by this court, is perhaps more favorable to the defendant than that of the United States Supreme Court or other jurisdictions. The doctrine of the Hitchman Case as applied to labor disputes by some of our lower courts has never been accepted here, if it has not been specifically rejected. A review of recent cases establishes this fact.

The question whether union tactics, merely persuasive in character, directed to the inducement of a breach of contract for a term are ever justified, was expressly reserved in Exchange Bakery & Restaurant, Inc., v. Rifkin, supra, page 267 of 245 N. Y., 157 N. E. 130, 134. The court, per Andrews, J., said: ‘Here, however, we do not need to decide whether, where the object of the act is to aid in a labor dispute, there is just cause or excuse for such interference with existing contracts, and, if not, how specific the contract must be, nor how substantial the term of employment contained therein to permit equity to intervene.’

In Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65, 79, 159 N. E. 863, 868, 63 A. L. R. 188, the court, per Lehman, J., said: ‘This court has not yet been called upon to decide whether employees may lawfully be urged to make a choice in breach of a definite contract.’ Of these cases it has been said: ‘Thus the judges of a great tribunal indicate their conviction that when dealing with legal problems enmeshed in dynamic social forces, courts ought to decide only the case before them and to remain open to all the wisdom the future may hold.’ ‘The Labor Injunction,’ by Frankfurter & Greene, p. 42.

In Nann v. Raimist, 255 N. Y. 307, 314, 174 N. E. 690, 73 A. L. R. 669, it was held that it was within the competency of a labor union to announce to the world its thought that another labor union was not dealing with its members in such a way as to promote the interests...