said, "Ah, my lord, give me a long day." "Your members of the rival organization for causing their wish is granted," replied the judge. “I give you discharge and preventing them from obtaining until the twenty-first of June, the longest day in employment. the year." Another wretch, convicted for stealing a watch, was brought before him for sentence. "Ah, my gay fellow," replied Lord Norbury, "You made a grasp at time, but egad, you caught eternity." A bigamist, in reply to the question as to why sentence should not be pronounced, said, "Ah, your honor, I was only," here he was interrupted by the court, who said, "trying to find a good one." (Meaning wife, of course.) The punning judge composed an epitaph for his tomb, but no more of it has remained in our memory than his request for the bell ringer to do him justice, for he, too, was a Toler. The Scotch broom deserves an Irish stick, exclaimed Lord Norbury, in reference to Lord Brougham, who had brought before Parliament some unconstitutional conduct of which he had been guilty; and at a later period it appeared that the old chief had fallen asleep on the bench during a trial for murder. In 1827, he resigned, and in 1831 he died. The late Mr. Brophy, State dentist, who was present at Lord Norbury's funeral, informed us that when lowering the coffin by ropes into a deep grave, a voice in the crowd called out: Give him rope galore; he was never sparing of it to others." As a landlord, Lord Norbury was by no means bad, and in his own house he is said to have been gentle and forbearing. His place in history is an unenviable one, because he was allied with the enemies of his country. Such an organization has the same rights as an individual, with respect to refusing employment by its members for any reason satisfactory to itself. It may also inform employers of its purpose, and, so long as there is no resort, or any threat to resort, to illegal acts or methods, it is not liable to those who may thereby suffer loss of . employment. When the acts complained of may, upon the evidence, be referred to lawful motives, such as a purpose to exclude from work unskillful men, or to secure a preference of employment to its own members, on their own terms and conditions, they should be attributed to such motives, and an unlawful purpose should not be presumed. Appeal from an order of the Appellate Division, First Department, reversing a judgment of the Special Term in favor of the plaintiffs. Andrew J. Shipman, for appellants; Charles Steckler, for respondents. PARKER, Ch. J.-The order of the Appellate Division should be affirmed, on the ground that the facts found do not support the judgment of the Special Term. In the discussion of that proposition I shall assume, for the purposes of the discussion only, that certain principles of law laid down in the opinion of Judge Vann are correct, namely: "It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed, but for no fixed period, either may end the contract whenever he chooses. The one may work or refuse to work at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason for it. Whatever one man may do alone he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act. Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by prearrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law." Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employe's giving a reason, if he has one, and the fact that the reason given is that he refuses to work with another who is not a member of his organization, whether stated to his employer or not, does not affect his right to stop work nor does it give a cause of action to the workınan to whom he objects because the employer sees fit to discharge the man objected to rather than lose the services of the objector. The same rule applies to a body of men who having organized for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but, if it seems to be in their interest as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be demanded, as a right, of the organization than of an individual, but if they elect to state the reason their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal in itself it does not become illegal because the organization directs one of its members to state the reason for its conduct. The principles quoted above recognize the legal right of members of an organization to strike, that is, to cease working in a body by prearrangement until a grievance is redressed, and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor or improved relations with their employers, but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by prearrangement, to work. The enumeration is illustrative rather than comprehensive, for the object of such an organization is to benefit all its members, and it is their right to strike, if need be, in order to secure any lawful benefit to the several members of the organization, as, for instance, to secure the re-employment of a member they regard as having been improperly discharged and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employes who are not members. And whenever the courts can see that a refusal of members of an organization to work with nonmembers may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice and to inflict injury upon such non-members. A number of reasons for the action of the organization will at once suggest themselves in a case like this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the non-members are performing. And another most important reason is suggested by the fact that these particular organizations, associations of steamfitters, required every applicant for membership to pass an examination testing his competency. Now, one of the objections sometimes urged against labor organizations is that unskillful workmen receive as large compensation as those thoroughly competent. The examination required by the defendant association tends to do away with the force of that objection as to them. And again, their restriction of membership to those who have stood a prescribed test must have the effect of securing careful as well as skillful associates in their work, and that is a matter of no small importance in view of the state of the law, which absolves the master from liability for injury sustained by a workman through the carelessness of a coemploye. So long as the law compels the employe to bear the burden of the injury in such cases it cannot be open to question but that a legitimate and necessary object of societies like the defendant associations would be to assure the lives and limbs of their members against the negligent acts of a reckless coemploye, and, hence, it is clearly within the right of an organization to provide such a method of examination and such tests as will secure a careful and competent membership, and to insist that protection of life and limb requires that they shall not be compelled to work with men whom they have not seen fit to admit into their organization, as happened in the case of the plaintiff McQueed. While I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and further, had the right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with non-members, when, in the event of injury by the carelessness of such coemployes, the burden would have to be borne by the injured without compensation from the employer and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves and careless of the rights of others, with the result that accidents are occurring almost constantly which snuff out the lives of workmen as if they were candles, and leave others to struggle through life maimed and helpless. These careless, reckless men are known to their associates, who not only have the right to protect themselves from such men, but, in the present state of the law, it is their duty, through their organizations, to attempt to do it, as to the trades affording special opportunities for mischief arising from recklessness. I know it is said in another opinion in this case that workmen cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ; " but I dissent absolutely from that proposition, and assert that so long as workmen must assume all the risk of injury that may come to them through the carelessness of coemployes, they have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services. court which can review only upon the law certainly will not presume that another and an unlawful motive, and one not stated in the findings of fact, prompted the action of the organization and its members; in other words, this court cannot, import into the findings of fact a fact that is not therein expressed. This is not a case of unanimous affirmance, but one of reversal, and under section 1338 of the Code of Civil Procedure, we are to assume that the Appellate Division intended to affirm the facts as found by the trial court, and, having so affirmed them, it then reversed, because they were insufficient in law to support the judgment. It is our duty, therefore, if we discover that the facts as actually found are insufficient to support the conclusion of law, to sustain the action of the Appellate Division in reversing the judgment (Nat. Harrow Co. v. Bement & Sons, 163 N. Y. 505, and cases cited). In Brown v. Murdock (14 Allen, 499), the court had before it on demurrer a declaration in an action where the defendants' business had been practically broken up, and it said: "In order to be good the declaration must allege against the defendants the commission of illegal acts. Its allegations must be analyzed to ascertain whether they contain a suffi If it be true, as was recently intimated by the Supreme Court of Pennsylvania in Durkin v. Kingston Coal Co. (171 Pa. St. 193), that an act of the legislature which undertakes to reverse the settled law upon the subject, and declare that the employer shall be responsible for an injury to an employe resulting from the negligence of a fellow-cient statement of such acts." This was followed workman" is unconstitutional - a doctrine from by an interesting analysis which resulted in discloswhich I dissent (see Tullis v. L. Erie & W. R. R., ing that no illegal act was alleged, notwithstanding 175 U. S. 348), but which it is possible may receive the liberal use of such extravagant words and the support of the courts then the only oppor- phrases as maliciously conspiring together" and tunity for protection in the future as well as the 'fellow-conspirators as aforesaid in pursuance of present, to workmen engaged in dangerous occu- their conspiracy as aforesaid," whereupon a demurpations is through organizations like these defend-rer was sustained and a precedent created which ant associations, which restrict their memberships should be followed in this case. to careful and skillful men, and prohibit their members from working with members of other organizations which maintain a lower standard or none at all. For the master's duty is discharged if the workman be competent, and for his recklessness, which renders his employment a menace to others, the master is not responsible. But I shall not further pursue this subject. My object in alluding to it is to emphasize the facts that there are other purposes for which labor organizations can be effectually used than those quoted above; and also, because it is fairly inferable from the facts found that the members of plaintiff association were objectionable to defendants because not up to the latter's standard, so as to make them eligible for membership in defendants' organization, and that this was the motive for defendants' acts in holding a strike and notifying their employer of their intention to do so. But whether this be so or not, when it can be seen from the facts found that such or other motives of advantage to themselves may have prompted defendants' action, a Now, before taking up the findings of fact for analysis in the light of the principles quoted above, as was done in Brown's case, and with a view of showing that they do not sustain the judgment of the Special Term, I wish to again call attention to the rules quoted, and particularly to so much of them as intimates that if the motive be unlawful or be not for the good of the organization or some of its members, but prompted wholly by malice and a desire to injure others, then an act which would be otherwise legal becomes unlawful. To state it concretely, if an organization strikes to help its members the strike is lawful. If its purpose be merely to injure non-members it is unlawful. If the organization notifies the employer that its members will not work with non-members, and its real object is to benefit the organization and secure employment for its members, it is lawful. If its sole purpose be to prevent non-members working, then it is unlawful. I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short of absurd to say that the everyday acts of the business world, or their walking delegates had any other motive apparently within the domain of competition, may than one which the law justifies of attempting to be either lawful or unlawful according to the motive benefit their members by securing their employof the actor. If the motive be good, the act is law-ment. Nowhere throughout that finding will be ful; if it be bad, the act is unlawful. Within all the found even a hint that a strike was ordered or a authorities upholding the principle of competition, notification given of the intention to order a strike if the motive be to destroy another's business in for the purpose of accomplishing any other result order to secure business for yourself, the motive is than that of securing the discharge of the members good; but, according to a few recent authorities, if of the plaintiff association and the substitution of you do not need the business, or do not wish it, members of the defendant associations in their place. then the motive is bad; and some court may say to Such a purpose is not illegal within the rules laid a jury, who are generally the triers of fact, that a down in the other opinion nor within the authorgiven act of competition which destroyed A's busi- ities cited therein; on the contrary, such a motive ness was legal if the act was prompted by a desire is conceded to be a legal one. It is only where the on the part of the defendant to secure to himself sole purpose is to do injury to another, or the act the benefit of it, but illegal if its purpose was to is prompted by malice, that it is insisted that the destroy A's business in revenge for an insult given. act becomes illegal. No such motive is alleged in But for the purpose of this discussion I shall that finding. It is not hinted at. On the contrary, assume this proposition to be sound, for it is clear the motive which always underlies competition is to me that, applying that rule to the facts found, asserted to have been the animating one. It is beit will appear that the Appellate Division order yond the right and the power of this court to import should be sustained. into that finding, in contradiction of another finding or otherwise, the further finding that the motive which prompted the conduct of defendants was an unlawful one, prompted by malice and a desire to do injury to plaintiffs without benefiting the members of the defendant associations. While I shall consider every fact found by the learned trial judge, I shall consider the findings in a different order, because it seems to me the more logical order. He finds "that the defendants, Cumming and Nugent, while acting in their capacity of walking delegates for their respective associations and members of the board of delegates, caused the plaintiff, McQueed, and other members of the plaintiff association to be discharged by their employers from various pieces of work upon buildings in the course of erection * * * by threatening the * employers that if they did not discharge the members of the plaintiff association and employ the members of the Enterprise and Progress associations in their stead, the said walking delegates would cause a general strike of all men of other trades employed on said buildings, and that the defendant, Cumming, as such walking delegate, did cause strikes * in order to prevent the members of the plaintiff association from continuing with the work they were doing at the time the strike was ordered, and that said employers, by reason of said threats and the acts of the defendants, Cumming and Nugent, discharged the members of the plaintiff association and employed the members of the Enterprise and Progress associations in their stead." I doubt if it would ever have occurred to any one to claim that there was anything in that finding importing a different motive from that specially alleged in the finding, had not the draftsman characterized the notice given to the employers by the associations of their intention to strike as "threats.” The defendant associations, as appears from the finding quoted, wanted to put their men in the place of certain men at work who were non-members working for smaller pay, and they set about doing it in a perfectly lawful way. They determined that if it were necessary, they would bear the burden and expense of a strike to accomplish that result, and in so determining they were clearly within their rights, as all agree. They could have gone upon a strike without offering any explanation until the contractors should have come in distress to the officers of the associations asking the reason for the strike. Then, after explanations, the non-members would have been discharged and the men of defendant associations sent back to work. Instead of taking that course, they chose to inform the contractors of their determination and the reason for it. Now, there is not a fact stated in that finding which is not lawful within the rules which I have It is the giving of this information a simple notifiquoted supra. Those principles concede the right cation of their determination, which it was right of an association to strike in order to benefit its and proper and reasonable to give, that has been members; and one method of benefiting them is to characterized as "threats" by the Special Term, secure them employment, a method conceded to and which has led to no inconsiderable amount of be within the right of an organization to employ. misunderstanding since. But the sense in which the There is no pretense that the defendant associations word was employed by the court is of no conse quence, for the defendant associations had the absolute right to threaten to do that which they had the right to do. Having the right to insist that plaintiff's men be discharged and defendants' men put in their place if the services of the other members of the organization were to be retained, they also had the right to threaten that none of their men would stay unless their members could have all the work there was to do. The findings further stated that the defendants, Cumming and Nugent, were the walking delegates of the defendant associations, and as such were members of the board of delegates of the building trades in New York, and were, therefore, in control of the matters in their respective trades. The trial court also found that the defendant, Cumming, threatened to cause a general strike against the plaintiff association and against the plaintiff, McQueed, wherever he found them at work, and that he would not allow them to work at any job in the city of New York, except some small jobs where the men of the Enterprise Association were not employed, and that he and the defendant, Nugent, threatened to drive the plaintiff association out of existence." Now, this finding should be read in connection with and in the light of the other findings which I have already read and commented on, and which show that the purpose of the strike was to secure the employment of members of the defendant associations in the places filled by the members of the plaintiff's association, who were willing to work for smaller wages, a perfectly proper and legitimate motive, as we have seen. But if the other findings be driven from the mind while considering this one, which the opinions of the Appellate Division indicate was not justified by the evidence, it will be found that it fairly means no more than that the defendant associations did not purpose to allow McQueed and the members of his association to work upon any jobs where members of defendant associations were employed; that they were perfectly willing to allow them to have small jobs, fitted, perhaps, for men who were willing to work for small wages, but that the larger jobs, where they could afford to pay and would pay the rate of wages demanded by defendant associations, they intended to secure for their members alone a determination to which they had a perfect right to come, as is conceded by the rules which I have quoted. Having reached that conclusion defendants notified McQueed, who had organized an association when he failed to pass the defendants' examination, that they would prevent him and the men of his association from working on a certain class of jobs. They did not threaten to employ any illegal method to accomplish that result: they notified them of the purpose of the defendants to secure this work for themselves and to prevent McQueed and his associates from getting it, and in doing that they but informed them of their intention to do what they had a right to do, and, when a man purposes to do something which he has the legal right to do, there is no law which prevents him from telling another, who will be affected by his act, of his intention. A man has a right under the law to start a store and to sell at such reduced prices that he is able in a short time to drive the other storekeepers.in his vicinity out of business, when, having possession of the trade, he finds himself soon able to recover the loss sustained while ruining the others. Such has been the law for centuries. The reason, of course, is that the doctrine has generally been accepted that free competition is worth more to society than it costs, and that, on this ground, the infliction of damages is privileged (Commonwealth v. Hunt. 4 Metcalf, 411, 434). Nor could this storekeeper be prevented from carrying out his scheme, because, instead of hiding his purpose, he openly declared to those storekeep ers that he intended to drive them out of business in order that he might later profit thereby. Nor would it avail such storekeepers, in the event of their bringing an action to restrain him from accomplishing their ruin by underselling them, to persuade the trial court to characterize the notification as a "threat," for on review the answer would be: A man may threaten to do that which the law says he may do, provided that, within the rules laid down in those cases, his motive is to help himself. A labor organization is endowed with precisely the same legal right as is an individual to threaten to do that which it may lawfully do. Having finished the discussion of the facts, I reiterate that, within the rules of law I have quoted, it must appear, in order to make out a cause of action against these defendants, that in what they did they were actuated by improper motives, by a malicious desire to injure the plaintiffs. There is no such finding of fact, and there is no right in this court to infer it, if it would, and from the other facts found, it is plain that it should not, if it could. The findings conclude with a sentence which commences as follows: "I find that the threats made by the defendants and the acts of the said walking delegates in causing the discharge of the members of the plaintiff association by means of threats of a general strike of other workmen constituted an illegal combination and conspiracy." That is not a finding of fact, but a conclusion of law that the trial court erroneously, as I think, attempted to draw from the facts found, which I have already discussed, and which clearly, in my judgment, re |