FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. Joseph Fettretch, for the appellant. Ingle Carpenter, for the respondents. MCLAUGHLIN, J. : The plaintiff is a master painter, and in July, August and September, 1901, had contracts for doing certain work in painting and decorating a building located at 987 Fifth avenue, and also on the Church of New Jerusalem in the city of New York. The defendant association, The Amalgamated Painters and Decorators of New York, is an unincorporated labor association of expert journeymen painters and decorators in such city, of which the defendent Callanan is the president and the defendant Healy one of the business representatives, commonly called a walking delegate. This action was brought to enjoin and restrain defendants from doing certain acts threatened to be done, which it is alleged, if permitted, would seriously interfere with the property rights and business of the plaintiff, and by reason thereof cause him serious damage. A preliminary injunction was granted, ex parte, restraining the defendants from committing the acts complained of, with an order to show cause why the same should not be continued during the pendency of the action. Upon the return of the order the preliminary injunction was vacated, but on appeal to this court that order was reversed and the injunction continued during the pendency of the action. (67 App. Div. 14.) Upon the trial, notwithstanding that the plaintiff established by competent proof the material facts set out in the papers upon which the preliminary injunction was granted, the court dismissed the complaint upon the ground, as appears from the decision made, that the case could not be distinguished "in principle from National Protective Association v. Cumming (170 N. Y. 315)," and the plaintiff has appealed from the judgment subsequently entered dismissing the complaint on the merits. The judgment must be reversed. The facts established at the trial do not bring this case within National Protective Association v. Cumming; nor has the principle there announced any application whatever. On the contrary, by reason of such facts, the case comes squarely within our former decision and the principle laid down in Curran v. Galen (152 N. Y. 33). The question presented FIRST DEPARTMENT, APRIL TERM, 1903. App. Div.] in National Protective Association v. Cumming was one between two rival labor organizations, and the court held that a labor union did not commit an unlawful act by refusing to permit its members to work with fellow-servants who were members of a rival organization. In Curran v. Galen the question was whether a labor organization had the right to procure the discharge of an employee because he would not become a member thereof. The Court of Appeals held that a labor union had no such right, and in so holding the court, in which all of the members concurred, said: "Public policy and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper or to restrict that freedom, and through contracts or arrangements with employers to coerce other workingmen to become members of the organization and to come under its rules and conditions, under the penalty of the loss of their position and of deprivation of employment, then that purpose seems clearly unlawful and militates against the spirit of our government and the nature of our institutions. The effectuation of such a purpose would conflict with that principle of public policy which prohibits monopolies and exclusive privileges." Here the sole question is whether the defendants, because the plaintiff would not in a formal way recognize the association, or for an alleged affront to its walking delegate, have the right to mali. ciously cause parties who have entered into contracts with him to deliberately break them by means of threats to cause, or by actually causing, a strike of all the workmen in the employ of such parties. That they have not such right was clearly and unmistakably announced on the appeal from the order vacating the preliminary injunction, the court then saying that the case furnished "no authority for a resort to fraud, intimidation, force or threats," except within the limitation announced in National Protective Association v. Cumming (53 App. Div. 227), and that upon the facts then presented and the facts established upon the trial were even stronger than those were "the plaintiff was entitled to an injunc tion restraining the defendants from interfering in any manner with the business of this plaintiff by resorting to intimidation, force or fraud, or by such acts injuring the business of the plaintiff or preventing the members of the defendants' organization from working FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. for the plaintiff, or preventing other men employed by him from working for the plaintiff, or upon any contract with which he is connected." The defendants, by causing a strike of all the workmen engaged on the building at 987 Fifth avenue, caused Leeds, through his representatives, Hunt & Hunt, to deliberately break the contract which they had made with the plaintiff, and in causing a general strike on the work at the New Jerusalem Church caused James C. Hose Sons to deliberately break their contract; and if the plaintiff should procure other contracts it is quite apparent that the same methods will be resorted to, as in the two instances stated, to induce parties contracting with him to violate their agreements. This was done, and in the future is threatened to be done, not because the plaintiff refused to employ union labor or to pay union wages, but simply because according to the uncontradicted testimony of the defendant Callanan - the plaintiff refused to recognize the representative of or "the union in any way." The method here employed to compel the plaintiff to accede to the demands of the defendants are unjust, unreasonable, and such as the law does not recognize and will not tolerate. As well might the defendants resort to physical force to enforce alleged rights or redress real or imaginary wrongs. It clearly appears that they were actuated by improper motives and by a malicious desire to injure the plaintiff; and this being so, the plaintiff was entitled to relief within all the authorities to which our attention has been called. Upon a careful consideration of this record, we are of the opinion that an injunction should have been granted to the extent indicated on the former appeal, and that the court erred in not so holding. The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event. VAN BRUNT, P. J., O'BRIEN, INGRAHAM and HATCH, JJ. concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. App. Div.] FIRST DEPARTMENT, APRIL TERM, 1903. MATTHEW CARENA, by DOMENICO CARENA, his Guardian ad Litem, Appellant, v. ALBERT ZANMATTI and ELISE ZANMATTI, Sued as ANGELINA ZANMATTI, Doing Business under and by the Firm Name and Style of A. ZANMATTI & Co., Respondents. Negligence-injury to one employed on a delivery wagon from the kick of a vicious horse. In an action to recover damages for personal injuries it appeared that the plaintiff was employed by the defendants to accompany a delivery wagon and guard its contents in the absence of the driver; that, while the plaintiff was upon the seat of the delivery wagon performing his duties, the horse attached to the wagon kicked and broke one of the plaintiff's legs. Evidence was given tending to show that the defendants knew the vicious char. acter of the horse and there was no proof that the plaintiff had knowledge thereof. Held, that a question of fact was presented as to whether the defendants had performed the duty incumbent upon them of furnishing the plaintiff a reasonably safe place in which to do his work, and that it was error for the court to dismiss the complaint. APPEAL by the plaintiff, Matthew Carena, by Domenico Carena, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. George H. Hart, for the appellant. Isaac Josephson, for the respondents. MCLAUGHLIN, J. : This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff by reason of defendants' negligence. The particular act of negligence alleged was that the defendants hired the plaintiff, a boy thirteen years of age, to go with a delivery wagon and see that nothing was taken from it in the absence of the driver; that attached to the wagon was a vicious horse and, while the plaintiff was performing the work assigned to him, the horse kicked and broke one of plaintiff's legs. FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. At the close of plaintiff's case the complaint was dismissed and he has appealed from the judgment thereafter entered. We think the court erred in dismissing the complaint. Three witnesses were produced, each of whom testified as to the previous vicious character of the horse: (1) Comparato, who testified that he had seen the horse kick many times when attached to the wagon, and he had also seen one of the defendants leave their store and take the horse by the bridle and endeavor to stop him; (2) Farrel, who testified that he had also seen the horse, while standing in front of the defendants' place of business and attached to the wagon, frequently do the same thing; and (3) Carena, who testified that one of the defendants had told him that the horse was wild and they would have to put him in with another horse to break him in and "get him tamed down." If the testimony of these witnesses were true, then, clearly, a question of fact was presented as to whether the defendants had performed the duty which rested upon them in furnishing the plaintiff a reasonably safe place to do his work. There was no dispute but what the plaintiff was seriously injured, and when he was injured he was in the place where the defendants put him, viz., upon the seat of the delivery wagon. Nor was there any evidence to the effect that the plaintiff was informed as to the vicious character of the horse or put upon his guard as to the danger which he encountered in this respect. Under such circumstances we are of the opinion that it was for the jury to say whether the defendants were liable for the damages sustained by the plaintiff. The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event. VAN BRUNT, P. J., PATTERSON, HATCH and LAUGHLIN, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event |