Supreme Court, March, 1921. [Vol. 115. the same and that the guilty individuals should be prosecuted. Finally, the defendant's contention is that the relief sought by the plaintiff should be denied because it comes into court with unclean hands. If the papers presented show that the plaintiff is unclean and that it has entered into a conspiracy to destroy the defendant union and to oppress its members and prevent workers generally from obtaining a living, the plaintiff should be turned out of court even though it appears that both the plaintiff and the defendants are of equal guilt. All the papers submitted must be carefully considered upon the point and the prior character of the acts and conduct of both parties should be reviewed. It seems from all the papers submitted upon this motion that both the plaintiff and the defendants herein named have been fully advised for a long time prior to the commencement of this action as to the course of conduct of each, and every turn of the affairs and activities of all concerned, so that no one should now be heard to deny the responsibility and liability therefor. The issue between the parties is nothing more than the old conflict between capital and labor. The swing of the pendulum is influenced almost entirely by the law of supply and demand, and neither capital nor labor at any time is satisfied to be governed by the length or sweep to and fro. Prior to December, 1920, when the trouble between the parties hereto became acute, and from 1914 to the last mentioned date, the swing was entirely to the side of labor, enabling it to force upon capital, demands and contracts of employment exclusive as to non-union or unorganized workers, and, therefore, oppressive. Now, and perhaps for a few years to come, the pendulum swing will be to the side of capital, which in turn will force upon labor, contracts equally oppressive and exclu Misc.] Supreme Court, March, 1921. · sive as to union or organized workers. It will be seen that at no time is there what may be termed, the true "open shop." open shop." The authorities seem to uphold both forms of contract and commend them except, perhaps, when it can be determined or proven that the same are oppressive, or a result of conspiracy, or in restraint of trade. A peculiar slant to the whole situation is that the worker of to-day may become the master of to-morrow; from the radical to the conservative by mere change of circumstances and position. Nevertheless, there will be no change in their relationship. When capital has the upper hand it will continue to grind down labor and when labor is in the ascendant it will in turn continue to harass, cheat, and seek to either control or destroy capital. Neither at any time is willing to give the quid pro quo, and the never ceasing conflict goes on. There can be no real solution of the problem, as old as our civilization, unless the foundation therefor is established by law. Labor, labor unions, or organized labor have their place and use; capital and organization thereof, likewise. But both must be made to know and to keep their respective proper places and use by law, to change only by the ever fluctuating force of supply and demand. Such a medium would prevent both extreme conservatism or autocracy, and extreme radicalism or sovietism. Can the courts step in between capital and labor to strike the medium and balance the scales? There must be in the conflict justice somewhere, somehow, at all times. The courts cannot find the balancing point by boxing the compass of judicial opinion from extreme radicalism to ultra-conservatism. They must stand at all times as the representatives of capital, of captains of industry, devoted to the principle of individual initiative, protect property and persons Supreme Court, March, 1921. [Vol. 115. from violence and destruction, strongly opposed to all schemes for the nationalization of industry, and yet save labor from oppression, and conciliatory toward the removal of the workers' just grievances. The prosperity of the nation depends on constructive legislation, backed up by intelligent judicial interpretation and strict enforcement. As to the law applicable to the facts set forth in the papers submitted, this court has fully expressed its opinion in these so-called labor cases. See Reardon, Inc., v. Caton, 107 Misc. Rep. 541. Compare Reardon v. Caton, 189 App. Div. 501; Reardon v. International Mercantile Marine, Id. 515, with Auburn Draying Co. v. Waddell, 227 N. Y. 1. It will serve no good purpose to rehash what has been declared by the appellate courts to be the respective rights and duties of the employer and the worker. The case of Curran v. Galen, 152 N. Y. 33, well expresses the same. The individual motto is, "work if you please; strike if you will." On the other hand, an employer of labor has the right to determine for himself how and under what conditions he will conduct his business. And so, as hereinbefore stated, the courts have recognized contracts imposed by the workers on their employers, exclusive in their nature, and the contracts of the employers imposed on the workers, equally exclusive in their nature, up to the point or extent, when and where, such become oppressive or a conspiracy and therefore unlawful. The case of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, is illuminative upon the question of respective rights of employer and employee where the facts presented are in substance similar to those here and wherein the court found that the plaintiff was entitled to the injunctive relief sought. So far as the question of picketing is concerned, Misc.] 66 Supreme Court, March, 1921. defendant does not deny that violence has followed as the result of the strike or lockout and that there has been picketing. The dispute is as to the sort and extent of the so-called picketing. In cases of this kind peaceful picketing" or "mental picketing' or what-not are usually only figures of speech or exist in the imagination,- mostly mentioned, seldom met with. That there ever in reality existed, or was practiced " peaceful picketing," is a question. In the present case there was no need of picketing to inform any one that there was a strike or a lockout at the plaintiff's premises, Every one knew it. The purpose of the picketing was just as well known, and "peaceful picketing was not in fashion or even sought to be practiced and could serve no useful purpose under the circumstances. As shown by the affidavits attached to the moving papers, the picketing as practiced herein was wholly unlawful and should be suppressed. Upon a careful consideration of all the papers and memoranda submitted, the court finds ample proof of plaintiff's claim that the defendants. are guilty of the acts complained of as to calling of the strike, picketing the plaintiff's premises, interference with employees and workers of the plaintiff and with their contracts of employment, and in generally unlawfully instigating, advising and directing acts of various kinds against plaintiff and its business, from which relief should be granted by way of injunction. Motion granted. Supreme Court, March, 1921. [Vol. 115. GEORGE MAEURER, Plaintiff, v. MORSE DRY DOCK AND REPAIR COMPANY, Defendant. (Supreme Court, Kings Special Term, March, 1921.) Bill of particulars - when motion for, granted negligence Workmen's Compensation Act Employers' Liability Act. While plaintiff, an employee of defendant, was engaged in work, maritime in its nature, he sustained injuries to his person for which he claimed and received compensation under the Workmen's Compensation Act. In an action subsequently brought in a state court for the same injuries plaintiff claimed to be entitled to recover both by an action at common law and under the Employers' Liability Act. Held, that in the circumstances plaintiff's motion for a bill of particulars of his alleged contributory negligence pleaded as a defense, will be granted MOTION for a bill of particulars. Smith & Reiher (George F. Palmer, Jr., of counsel), for plaintiff. Campbell, Flaherty, Turner & Strouse (Charles J. McDermott, of counsel), for defendant. VAN SICLEN, J. Motion by plaintiff to compel the defendant to give bill of particulars of defense, alleging contributory negligence of the plaintiff, as set forth in defendant's answer. There seems to be no dispute, and the fact is, that the plaintiff, when injured, was engaged in work, maritime in its nature; that at the time of the injury plaintiff was in the employ of the defendant and that heretofore the plaintiff made claim for and received compensation under the Workmen's Compensation Law of this state. After the decision of Knickerbocker Ice Company v. Stewart, 253 U. S. 149, the plaintiff brought action to recover for the injury received, and claims |