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Supreme Court, March, 1921.

threatening such workers with bodily harm if they fail to join such union; and that the defendants are attempting to carry out their plans and purposes by the use of threats, intimidation, violence and direct action. Attached to the moving papers are a number of affidavits of employees of the plaintiff showing that threats have been made by some of the defendants against them, and in a number of cases such employees were assaulted. Attached to the complaint is a copy of agreement signed by a large number of plaintiff's employees agreeing not to belong to the union. The affidavits interposed by the defendants admit that a strike has been called and, as stated therein, is to prevent the reduction of proper standards of wages, hours and sanitation in the factories, as well as to maintain such standards where they now prevail, by continuing the system of collective bargaining between the employers and the employees, and that a strike at the factory of the plaintiff is a part of the general strike. It is clear from the affidavits submitted that the strike is not for the purpose of bettering the condition of the employees, but prompted rather by fear that it might interfere with the system now in vogue of collective bargaining. This case comes clearly within the ruling of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. In that case Mr. Justice Pitney said: "Plaintiff, having in the exercise of its undoubted rights established a working agreement between it and its employees, with the free assent of the latter, is entitled to be protected in the enjoyment of the resulting status, as in any other legal right. *** Defendants set up, by way of justification or excuse, the right of workingmen to form unions, and to enlarge their membership by inviting other workingmen to join. The right is freely conceded, provided the objects of the union be proper and legitimate, which we

Supreme Court, March, 1921.

[Vol. 115. assume to be true, in a general sense, with respect to the Union here in question. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439. The cardinal error of defendant's position lies in the assumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas in truth, like other rights that exist in civilized society, it must always be exercised with reasonable regard for the conflicting rights of others." In Curran v. Galen, 152 N. Y. 36, the court by a per curiam decision says: "It is proper and praiseworthy, and, perhaps, falls within that general view of human society, which perceives an underlying law that men should unite to achieve that which each by himself cannot achieve; or can achieve less readily. But the social principle which justifies such organizations is departed from, when they are so extended in their operation as either to intend, or to accomplish, injury to others. 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. It would tend to deprive the public of the services of men in lawful employments and capacities. It would, to use the language of Mr. Justice Barrett in People ex rel. Gill v. Smith (5 N. Y. Cr. Rep., at

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Supreme Court, March, 1921.

p. 513), impoverish and crush a citizen for no reason connected in the slightest degree with the advancement of wages or the maintenance of the rate.'" See, also, Auburn Draying Co. v. Wardell, 227 N. Y. 1; Posner Co. v. Jackson, 223 id. 325; Jaeckel v. Kaufman, N. Y. L. J., Oct. 13, 1920; Piermont v. Schlesinger, id. Dec. 2, 1920; Finnegan v. Butler, 112 Misc. Rep. 281; Michaels v. Hillman, 111 id. 284. The amended complaint sets forth a good cause of action. The objection thereto made by defendants that it omitted to allege, first, that the defendant union had notice of the employment contracts, is met by the allegation in paragraph 13" that all of the workers engaged by the plaintiff were and still are employed pursuant to contracts of employment, all of which defendant union had notice of." The second objection, that it omitted. to charge all of the defendants with unlawful acts complained of is untenable. See Rourke v. Elk Drug Co., 75 App. Div. 145. It is clear from a reading of the amended complaint that it sets out a cause of action against all of the members of the union, in charging them with forming a conspiracy to cause plaintiff's factory to shut down and are wrongfully instigating his employees to quit work. The objections to the sufficiency of the amended complaint must be overruled. Upon all the facts and authorities cited the motion for an injunction pendente lite will be granted.

Motion granted.

Supreme Court, March, 1921.

[Vol. 115.

MARTIN M. DUITZ, Plaintiff, v. KINGS COUNTY LIGHTING COMPANY, Defendant.

(Supreme Court,. Kings Special Term, March, 1921.)

Injunctions

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gas companies rates federal courts - leave to intervene denied public service commission - Public Service Commissions Law, § 65.

While defendant, presumably pursuant to an order of the public service commission, was making a charge of ninety-five cents per 1,000 cubic feet for gas furnished to private consumers, it brought an action in a federal court against the public service commission and others with result that a decree was duly entered adjudging that both the statute (Laws of 1906, chap. 125) fixing the maximum rate at one dollar per 1,000 cubic feet and the act (Laws of 1916, chap. 604) purporting to amend the same, were unconstitutional as confiscatory and restraining the enforcement of either of said statutes. Two. days after the entry of such decree defendant filed with the public service commission a schedule increasing its rate to one dollar and a half and immediately began to charge its private consumers at that rate. Held, that in an action to have the dollar and a half rate adjudged excessive and exorbitant, the fact in issue could not be determined upon affidavits on a motion for a temporary injunction restraining the receipt by defendant of any sum based on such rate or in excess of the ninety-five cent rate, and that plaintiff's presentation of facts did not point so clearly to his ultimate success in the action as to justify the granting of the motion. (Pp. 16, 17.)

Upon the entry of the decree in the federal court action, which by express reference thereto adjudged the invalidity of the statute of 1906, irrespective of the amendatory act of 1916, the ninety-five cent rate became ineffective and cannot be enforced as prima facie compensatory. There was, therefore, no legal barrier which prevented the defendant fixing a rate deemed by it to be reasonably remunerative in the absence of any rate prescribed either by the legislature or by the public service commission. (Pp. 17, 18.)

Morrell v. Brooklyn Borough Gas Co., 113 Misc. Rep. 65, distinguished. (P. 19.)

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Supreme Court, March, 1921.

The presumption that the reasonableness of a dollar and seventeen cent rate established by a finding in the federal court action would continue for several months, was negatived and destroyed by proof of changed conditions, and defendant was also entitled to invoke the presumption that it had not violated section 65 of the Public Service Commissions Law by fixing an unreasonable rate. (Pp. 19, 20.)

Motion for an injunction granted to the extent of restraining defendant from removing its meter from plaintiff's house or shutting off the supply of gas for failure to pay the increase over the ninety-five cent rate prior to the expiration of thirty days from the date of defendant's filing its new schedule, and in all other respects denied. (P. 20.)

The court will not either directly or indirectly sanction a violation of the decree of the federal court and until an application by the public service commission for a modification of said decree is granted, its motion for leave to intervene will be denied but a motion by the city of New York for leave to intervene will be granted. (P. 21.)

MOTION for an injunction pendente lite and motion to intervene.

Maxwell S. Harris, for plaintiff.

Ingraham, Sheehan & Moran (Samuel F. Moran and John D. Monroe, of counsel), for defendant.

John P. O'Brien, corporation counsel (Judson Hyatt, of counsel), for city of New York.

Terence Farley and William S. Jackson, for public service commission.

ASPINALL, J. It is alleged in this action that since about the year 1914, and until October, 1920, the defendant charged for gas furnished to private consumers at the rate of ninety-five cents per 1,000 cubic feet; that on or about the 23d day of October, 1920, the defendant increased said rate to one dollar and fifty cents without giving and publishing the thirty days' notice of such change of rate as required by the

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