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sought to be accomplished is illegal and void. I said: “Public policy and the interests of The contract in question was a combination society favor the utmost freedom in the citiin the interest of monopoly to prevent the zen to pursue his lawful trade or calling, employment, as well as to compel the dis- and if the purpose of an organization or comcharge of competent men who were willing bination of workingmen be to impair or to to work. Its primary object was to create restrict that freedom, and through contracts á monopoly to benefit the members of a or arrangements with employers to coerce single labor union, by compelling the dis other workingmen to become members of the charge of good men who wished to work, organization and to come under its rules and but were too independent to join the union conditions, under the penalty of the loss of under compulsion, or, if they were members their position and of deprivation of employalready, by compelling them to remain such ment, then that purpose seems clearly unlawagainst their will. While there may have ful, and militates against the spirit of our been other purposes, they were incidental government and the nature of our institutions. to this main purpose, which runs through The effectuation of such a purpose would conthe contract from the first stipulation to the flict with that principle of public policy which last. The agreement created an unlawful prohibits monopolies and exclusive privileges. combination or trust, because it monopolized It would tend to deprive the public of the the market by excluding from employment services of men in useful employments and all who do not belong to this one union, capacities. It would, to use the language and compelled the discharge of all in em of Mr. Justice Barrett in People ex rel. Gill ployment who would not join it. The means V. Smith, 5 N. Y. Cr. R., at page 513, 'imused was not persuasion, but coercion. The poverish and crush a citizen for no reason provisions which restrict both master and connected in the slightest degree with the men from taking apprentices are significant advancement of wages or the maintenance as a clear violation of public policy, for they of the rate.' Every citizen is deeply intertend to prevent the training of youths into ested in the strict maintenance of the conskilled workmen, to the great disadvantage stitutional right freely to pursue a lawful of the state. The stipulation permitting a | avocation, under conditions equal as to all, strike without a grievance, simply out of and to enjoy the fruits of his labor without sympathy for those employed elsewhere, the imposition of any conditions not required was also illegal; for it tended to promote for the general welfare of the community. business paralysis throughout the country. 1 The candid mind should shrink from the reThe employers would be compelled to sus. | sults of the operation of the principle conpend work, not because their men were dis-tended for here, for there would certainly be satisfied with their own condition, but be- | a compulsion, or a fettering, of the individucause they felt sorry for others in a less al, glaringly at variance with that freedom in fortunate condition, over which their own the pursuit of happiness which is believed employers had no control. In other words, to be guarantied to all by the provisions of if workmen in California or in Russia struck, the fundamental law of the state. The symwith or without just grounds, the party of pathies, or the fellow-feeling, which as a the second part could strike also.

social principle underlies the association of This case is quite analogous to that of Cur workingmen for their common benefit, are not ran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 consistent with a purpose to oppress the inL. R. A. 802, 57 Am. St. Rep. 496, wbich, as dividual, who prefers by single effort to gain it is admitted, has not been overruled, but his livelihood. If organization of workingis still the law. The defense relied upon in men is in line with good government, it is that case to justify those who procured the because it is intended as a legitimate instrudischarge of a workman from employment was mentality to promote the common good of its an agreement between a brewers' association members. If it militates against the genand a labor union, "to the effect that all em eral public interest, if its powers are directed ployés of the brewery companies belonging towards the repression of individual freeto the Ale Brewers' Association shall be mem dom, upon what principle shall it be justibers of the Brewery Workingmen's Local fied? * * * So far as a purpose appears Assembly 1796, Knights of Labor, and that from the defense set up to the complaint no employé should work for a longer period that no employé of a brewing company shall than four weeks without becoming a mem- | be allowed to work for a longer period than ber.” It was alleged that the plaintiff, a four weeks without becoming a member of nonunion employé, was retained by one of the Workingmen's Local Assembly, and that the brewery companies for more than four a contract between the local assembly and weeks after notice to become a member of the Ale Brewers' Association shall be availed the union, and that the defendants, as a com of to compel the discharge of the independmittee of the union, without intent to injure ent employé, it is in effect a threat to keep the plaintiff, notified the company of such persons from working at the particular trade violation of the agreement, which led to his and to procure their dismissal from employdischarge. It was held that these facts con- | ment." stituted no defense, because the agreement. This long quotation is warranted by the was void as against public policy. The court strong reasoning which applies directly to the case in hand. I unite with Judge GRAY | Const. U. 8. Amend. 14, guarantying the equal in recognizing that case as a sound exposi- | protection of the laws. tion of the law. I invoke its authority as

(Ed. Note.--For cases in point, see vol. 10, controlling this appeal, for the facts of the

Cent. Dig. Constitutional Law, 88 681, 688-696.) two cases are so analogous that the same


NESS. principle must govern both. If the agree Laws 1904, c. 432, regulating the keeping ment in that case was against public policy, of employment agencies in cities of the first and what is to be said of the one before us? second class, and requiring the obtainment of That agreement was held void because it re

licenses for the keeping of such agencies, is a

valid exercise of the police power, enacted for quired the discharge of workmen if they

the protection from fraud and oppression of would not join a particular union, thus com ignorant people seeking employment, and does pelling them to join against their will. This not infringe the constitutional right of a citizen agreement contains the same requirement,

to carry on a lawful business without legislative

interference. because the phrase "cease to employ" is

(Ed. Note.-For cases in point, see vol. 10, merely a euphemism for the word “dis Cent. Dig. Constitutional Law, &$ 164-166.] charge," and in addition there are other pro visions equally subversive of personal lib

Appeal from Supreme Court, Appellate erty and equally opposed to public policy.

Division, First Department. Would a court of equity enforce such an

Habeas corpus proceedings by the people, agreement by a decree for specific perform

on the relation of James J. Armstrong, ance? Would it command the employer to

against the warden of the city prison of the discharge workmen simply because they re

city of New York. From an order of the fused to join the union? Would it restrain Appellate Division (95 N. Y. Supp. 1152, 107 him from employing competent men because

App. Div. 617), affirming an order dismissing they were not members of the union? the writ and remanding relator to custody, Would it restrain him or his employés from relator appeals. Affirmed. taking apprentices? Would it compel both Charles E. Le Barbier, for appellant. Wilmaster and man to obey the regulations of llam Travers Jerome, Dist. Atty. (Robert & the union, whether reasonable or unreason Johnstone, of counsel), for respondent able?

The promissory note sued upon is collateral O'BRIEN, J. The courts, below have dissecurity for the faithful performance of the missed a writ of babeas corpus sued out by agreement by the employer, and a violation the relator to inquire into the cause of his of any stipulation thereof, according to its imprisonment and to be discharged thereterms, renders the note collectible. Will a from. The defendant made return to the court of law make the employer pay the note writ to the effect that he detained the rebecause he refused to discharge a competent | lator in his custody by virtue of a warrant of man who would not join the union, or who commitment made by one of the city magis resigned from the union, or refused to obey trates of the city of New York on the 31st its rules and submit to its dictation? Will day of March, 1905, and a copy of the warrant it permit a recovery thereon because non

was annexed to the return and made a part union men were employed, or apprentices thereof. After a hearing upon the petition, taken, or for a failure to comply with any the return, and the writ, the court decided one of the many stringent stipulations? I that the relator was properly committed, and think that nelther a court of equity nor a. the order was affirmed on appeal. court of law should attempt to enforce the There is no dispute whatever about the agreement, directly or indirectly, because it | facts, and the relator's contention raises is utterly void as a flagrant violation of

simply a question of law. He was detained poblic policy. I vote for affirmance.

upon the warrant of commitment by virtue

of a judgment or order made by the comCOLLEN, C. J., and HAIGHT and WER

mitting magistrate on the hearing of a comNER. JJ.. concur with GRAY, J. BART.

plaint against him for violation of a statute. LETT, J., concurs with VANN, J. O'BRIEN,

The statute is chapter 432 of the Laws of J., absent

1904, and is entitled "An act to regulate the

keeping of employment agencies in the cities Ordered accordingly.

of the first and second class where fees are

charged for procuring employment or situa(183 N. Y. 223)

tions." The statute contains ten sections and

purports to regulate the business of employ. PEOPLE er rel. ARMSTRONG v. WARDEN

ment agencies in the cities mentioned in the OF CITY PRISON OF NEW YORK.

title in various ways not necessary here to (Court of Appeals of New York. Dec. 5, 1905.) enumerate. The question in this case turns 1. CONSTITUTIONAL LAW-EQUAL PROTECTION upon the second section, which reads as folOF LAWS-TEKBITORIAL INEQUALITY.

lows: “No person shall open, keep or carry Laws 1904, c. 432, regulating the keeping on any such employment agency in the cities of employment agencies in cities of the first and second class, is not, because it applies only

| of the first and second class, unless every to cities of the specified classes, in violation of | such person shall procure a liceuse therefor from the mayor of the city in which suchful employment. A statute to promote the person intends to conduct such agency. Any public health, the public safety, or to secure person who shall open or conduct such an public order, or for the prevention or supemployment agency without first procuring pression of fraud, is a valid law, although it such license, shall be punishable by a fine may in some respects interfere with individunot exceeding two hundred and fifty dollars, al freedom. All business and occupations or on failure to pay such fine, by imprison are conducted subject to the exercise of the ment not exceeding thirty days. , Such li. police power. Individual freedom must yield cense shall be granted upon the payment to to regulations for the public good. It may said mayor of a fee of twenty-five dollars be laid down as a general principle that leg. annually for such employment agency in islation is valid which has for its object the cities of the first and second class." It is ad promotion of the public health, safety, morals, mitted that the relator kept an employment convenience, and general welfare, or the preagency in the city of New York, and was en vention of fraud or immorality. We think gaged in that business without having pro that such is the character of the statute in cured any license from the mayor, or having question. It was intended to regulate emcomplied in any respect with the provisions ployment agencies in cities. The Legislature of the statute.

had the right to take notice of the fact that The relator insisted in the courts below, such agencies are places where emigrants and and insists in this court, that the statute up- ignorant people frequently resort to obtain on which the commitment is based is void, employment and to procure information. The as in conflict with the state and federal Con relations of a person so consulting an agency stitutions. It is argued that it is in conflict of this character with the managers or per. with the equal rights clause of the fourteenth sons conducting it are such as to afford great amendment of the federal Constitution, since opportunities for fraud and oppression, and it applies only to cities of the first and sec the statute in question was for the purpose 'ond class. But it seems to be well settled in of preventing such frauds, and probably for this court and in the federal court that the the suppression of immorality. equality within the contemplation of the We think that the objections to the statute fourteenth amendment does not necessarily are not well founded, that it is a valid law, include a territorial equality, and that legis and therefore the order should be affirmed. lation which, though limited in the sphere of

CULLEX, C. J., and BARTLETT, HAIGHT, its operations, affects alike all persons simi

VANN, and WERNER, JJ., concur. GRAY, larly situated within such sphere, is valid. People v. Haynor, 149 N. Y. 195, 43 N. E.

J., concurs in result. 541, 31 L, R. A. 689, 52 Am. St. Rep. 707; Mallett v. North Carolina, 181 U. S. 589, 21 Sup.

Order affirmed. Ct. 730, 45 L Ed. 1015; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ot. 357, 28 L. Ed. 923;

(183 N. Y. 233) Williams v. People, 24 N. Y. 405. Criminal GEARTY V. MAYOR, ETC., OF CITY OF laws are not necessarily unconstitutional,

NEW YORK. even if they bear unequally upon persons in (Court of Appeals of New York. Dec. 5, 1905.) different parts of the state. The evil which 1. EVIDENCE-SELF-SERVING DECLARATION. the Legislature may have in view in passing

Plaintiff, a contractor, sued to recover

money deducted from the contract price of cersuch laws may exist only in the great cities of

tain work performed for a city because of delay the state, and have no existence in rural in its completion, and also to recover damages districts.

because the city unlawfully required certain The other objection made by the relator to

work to be done a second time. Held, that tho

admission in evidence of a letter written by the the validity of the statute presents a ques

secretary of the department of public works to tion which has been very much discussed in

the plaintiff, to the effect that plaintiff was not this court, as well as in other courts, and doing the work in accordance with contract, and that is that the statute interferes with the

that it was being unnecessarily delayed, and that

he was willfully violating the conditions of the relator's right to carry on a lawful business

contract, which was not offered for the purpose without being bampered by statutory regu of showing notice, was error, as the statements lations. The cases are abundant which bold

therein were merely self-serving declarations on that the individual has the right to carry on

the part of the defendant, not binding upon the

| plaintiff. any lawful business, or earn his living in any

| 2. TRIAL-OBJECTIONS TO EVIDENCE-SUFFIlawful way, and that the Legislature has no CIENCY. right to interfere with his freedom of action Where the court was advised of the purport in that respect, or otherwise place restraints

of certain incompetent evidence, and knew what

was sought to be proved by it, an objection on upon his movements. But, of course, these

the ground of irrelevancy was improperly over'cases must all be understood as applying to ruled, where the incompetency of the evidence laws that are not within the police power. was clearly apparent. If the statute comes fairly within the scope

[Ed. Note.-For cases in point, see vol. 46, of the police power, it is a valid law, al

Cent. Dig. Trial, $8 196–200.) though it may interfere, in some respects,

Gray, Haight, and Vann, JJ., dissenting. with the liberty of the citizen, which, of | Appeal from Supreme Court, Appellate course, includes his right to follow any law. | Division, First Department,

Action by James A. Gearty against the, unanimously affirmed at the Appellate Divimayor, a) dermen, and commonalty of the city sion. of New York. From a judgment of the L. Lafin Kellogg and Alfred C. Petté, for Appellate Division (88 N. Y. Supp. 1102, 96

appellant. John J. Delany, Corp. Counsel App. Div. 625), affirming a judgment for de (Theodore Connoly and Terence Farley, of fendant, plaintiff appeals. Reversed.

counsel), for respondent. On May 18, 1895, the plaintiff entered into a contract with the defendant to regulate, set WERNER, J. (after stating the facts). curbstones, and pave with granite block the The unanimous affirmance by the Appellate roadway of Transverse Road No. 4, crossing Division has foreclosed all questions upon Central Park at Ninety-Seventh street from this appeal, except those arising out of excepFifth avenue to Central Park West (Eighth tions to rulings upon evidence and the charge avenue), in the city of New York. The con- | of the trial court. Two such questions are tract, among other things, contained a provi presented by the appellant, but we deem it sion that the pavement should be laid upon necessary to consider only one of them, and a foundation of concrete composed of one that relates to the admission in evidence, part of cement of a specified kind, two parts on behalf of the defendant, of a letter writof clean sharp sand, and five parts of broken ten during the course of the work, by the stone. It further provided that the work secretary of the defendant's department of should be completed on or before the expira public works, to the plaintiff. This letter tion of 50 days from the time of commence leads as follows: "I am directed to inform ment, and if not completed within that time you of the adoption of the following resoluthe city should have the right to deduct $20 tion at a meeting of the board held this day: a day as liquidated damages for each day 'Whereas, this department entered into a consumed by the work beyond the time fixed ! contract with James A. Gearty, under date for completion. There were further provi of May 18, 1895, for regulating, paving, etc., sions to the effect that the work should be the roadway of Transverse Road No. 4, Cendone to the satisfaction of the engineer in tral Park; and Whereas, it appears that the charge of the work and that all defective work under said contract is being delayed work should be taken up and replaced. The and is not being done in accordance with city claimed that certain portions of the the terms of said contract: Therefore, reconcrete did not conform to the contract spec solved, that the commissioners of the departifications and compelled the plaintiff to take | ment of public parks are of the opinion and up and replace about 5,000 cubic yards there do certify in writing that said work is unof. The work made necessary by the removal necessarily and unreasonably delayed, and of this alleged defective concrete, and the that said contractor is willfully violating substitution of material of proper kind, ex the conditions of said contract, and that said tended the time of the completion of the work is not being done or progressing accontract beyond the 50 days fixed therefor. cording to the terms of said contract. ReThe plaintiff claimed that the concrete fur solved, that the secretary be directed to nonished was of proper character and that the tify said contractor, pursuant to the provicity unlawfully compelled him to remove the sions of said contract, to discontinue all work portions thereof in question. He further thereunder, and that the commissioners of claimed that the time consumed in doing the the department of public parks will complete work beyond the period fixed in the contract the work as therein provided.'." When this was made necessary by such unlawful action letter was offered in evidence the counsel on the part of the city in compelling him to for the plaintiff objected to it and said: I remove the alleged defective portion of the fail to see its relevancy. That is an effort concrete and do the work a second time. The to take advantage under a peculiar clause city deducted from the contract price the of the contract which allows them to take sum of $20 for each of 22 days, being the 1.away the work. No such notice has been length of time which it claimed the plaintiff stated. No such notice has been acted upon had taken beyond the period fixed for the at the time we were discussing this work.” completion of the contract. The amount thus The counsel for the defendant then said: deducted was $440. Two causes of action "It is to show the manner of the plaintiff's are set forth in the complaint: (1) To recover performance. It is one of the issues here." the sum of $440 alleged to have been unlaw The court overruled the objection, saying, fully deducted by the defendant for the 22 "It may have some bearing on the penalty days' overtime; (2) to recover $10,000 for | they imposed," and the defendant's counsel damages suffered by reason of certain work took an exception. , , ri being unlawfully and improperly required There was a clause in the contract which, to be done a second time. Upon the trial the so far as material to this discussion, proevidence was conflicting as to whether the vided that if the commissioners of the park concrete which the plaintiff was compelled to department should be of opinion that the conremove conformed to the specifications of the tractor was not performing the work in comcontract. The issues were submitted to the pliance with the contract, they could notify jury, which rendered a verdict in favor of him in writing to discontinue work therethe defendant upon both causes of action, and under and complete the same themselves. the judgment entered upon this verdict was 'This letter was evidently sent in pursuance

of some design on the part of the commission

(183 N. Y, 227) ers to take advantage of this clause of the

In re SOOP. contract, but the record discloses that no

CORNELL V. BURHANS. such action was ever taken and that the

(Court of Appeals of New York. Dec. 5, 1905.) plaintiff was permitted to complete the work.

APPEAL – ORDERS APPEALABLE – APPEALS It will be observed that the letter contains FRUM INTERMEDIATE COURT. statements to the effect that the plaintiti Under Code Civ. Proc. $ 2260, providing was not doing the work in accordance with

that an appeal may be taken from a final order

in summary proceedings to recover possession the terms of the contract, that it was being

of real property to the same court and in the unnecessarily and unreasonably delayed, and

same manner as where an appeal is taken from that he was willfully violating the conditions a judgment rendered in that court, and section of the contract. The letter was not offered

2201, providing that an appeal cannot be taken

to the Court of Appeals "upon such an appeal" in evidence for the purpose of showing notice,

unless the Appellate Division shall allow the and had in fact been withdrawn by a sub same, and section 3405, providing for appeals sequent communication. Its admission in evi

from justices' judgments to the County Court, dence was attempted to be justified on the

an appeal lies to the Appellate Division from

an order of the County Court, reversing a final ground that it showed the manner of per order in a summary proceeding instituted beformance, and the learned trial judge evi fore a justice of a City Court, notwithstanding dently so understood it, as he said it might

the provisions of section 1357 of the Code, have some bearing on the penalty imposed

giving a right of appeal to the Appellate Divi

sion from orders affecting substantial rights for failure to proceed with the work in the made in special proceedings arising only in time specified by the contract. In this view courts of record. of the case it is obvious that the statements

Appeal from Supreme CourtAppellate in the letter were merely self-serving dec

Division, Third Department. larations made by officers of the defendant, who assumed to characterize and determine

Petition by Henry C. Soop, as agent and the manner of plaintiff's performance of the

attorney of the estate of Thomas Cornell, work under the contract. They were ex

against Webster H. Burbans. From an order parte statements, in no way binding on the

of the Appellate Division (94 N. Y. Supp. 463, plaintiff, and were clearly inadmissible.

106 App. Div. 341), dismissing an appeal Bank of British North America v. Delafield,

from an order of the County Court reversing 126 N. Y. 410, 27 N. E. 797 ; Austin v. Bart

an order of the City Court in favor of petilett, 178 N. Y. 310, 70 N. E. 855; Learued tioner, petitioner appeals. Reversed. v. Tillotson, 97 N. Y. 1, 49 Am. Rep. 508; This is a summary proceeding to recover Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385. the possession of certain real estate situated

The learned counsel for the respondent in the city of Kingston. It was instituted seeks to avoid the effect of this error by in the City Court of Kingston by the appelclaiming that the objection made by the lant and petitioner, Soop, as agent and atplaintiff's counsel did not point out to the torney of the estate of Thomas Cornell, decourt the real ground of its inadmissibility. ceased, to oust the respondent, Burhans, from The colloquy which occurred between counsel the possession of such real property after and court at the time of the admission of the expiration of a lease thereof executed in the letter indicates quite clearly, we think, January, 1904. The issues were tried before that the court was advised of the purport a jury, which rendered a verdict in favor of of the evidence and what was sought to be the petitioner, and a final order awarding proved by it. While the objection was placed him possession of the premises was entered upon the ground of irrelevancy, its incom thereon. From this order an appeal was petency was clearly apparent. M. Grob's taken to the Ulster County Court, where Sons v. Groh, 177 N. Y. 8, 15, 68 N. E. 992. it was reversed. A further appeal was then Nor can we properly say that the evidence taken to the Appellate Division of the Suwas harmless. The trial was before a jury, preme Court, but the appeal was there disand these statements, coming from the offi. missed. That court has allowed an appeal cers of the city, may have had considerable to this court from its order dismissing the weight with the jury. The burden is on appeal, and has certified the following questhe respondent to show that the reception | tion: "Is the right to appeal to the Appelof the letter was harmless, and this he has late Division of the Supreme Court given in failed to do. Foote v. Beecher, 78 N. Y. 155; , a summary proceeding to recover possession Jefferson v. N. Y. E. R. R. Co., 132 N. Y. | of real property from an order of the County 483, 486, 30 N. E. 981; People v. Strait, Court made upon an appeal from and revers154 N. Y. 165, 171, 47 N. E. 1090.

ing, with costs, a final order in a proceeding The judgment should therefore be reversed,

instituted before a justice of the peace of the and a new trial granted, with costs to abide City Court of Kingston ?" the event.

H. A. Flemming, for appellant. John D. CULLEN, C. J., and O'BRIEN and BART.

Eckert, for respondent.
LETT, JJ., concur. GRAY, HAIGHT, and
VANN, JJ., dissent.

WERNER, J. (after stating the facts).

We think the answer to the question proJudgment reversed, etc.

1 pounded by the court below is to be found

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