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sought to be accomplished is illegal and void. The contract in question was a combination in the interest of monopoly to prevent the employment, as well as to compel the discharge of competent men who were willing to work. Its primary object was to create a monopoly to benefit the members of a single labor union, by compelling the discharge of good men who wished to work, but were too independent to join the union under compulsion, or, if they were members already, by compelling them to remain such against their will. While there may have been other purposes, they were incidental to this main purpose, which runs through the contract from the first stipulation to the last. The agreement created an unlawful combination or trust, because it monopolized the market by excluding from employment all who do not belong to this one union, and compelled the discharge of all in employment who would not join it. The means used was not persuasion, but coercion. The provisions which restrict both master and men from taking apprentices are significant as a clear violation of public policy, for they tend to prevent the training of youths into skilled workmen, to the great disadvantage of the state. The stipulation permitting a strike without a grievance, simply out of sympathy for those employed elsewhere, was also illegal; for it tended to promote business paralysis throughout the country. The employers would be compelled to suspend work, not because their men were dissatisfied with their own condition, but because they felt sorry for others in a less fortunate condition, over which their own employers had no control. In other words, if workmen in California or in Russia struck, with or without just grounds, the party of the second part could strike also.

This case is quite analogous to that of Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, which, as it is admitted, has not been overruled, but is still the law. The defense relied upon in that case to justify those who procured the discharge of a workman from employment was an agreement between a brewers' association and a labor union, "to the effect that all employés of the brewery companies belonging to the Ale Brewers' Association shall be members of the Brewery Workingmen's Local Assembly 1796, Knights of Labor, and that no employé should work for a longer period than four weeks without becoming a member." It was alleged that the plaintiff, a nonunion employé, was retained by one of the brewery companies for more than four weeks after notice to become a member of the union, and that the defendants, as a committee of the union, without intent to injure the plaintiff, notified the company of such violation of the agreement, which led to his discharge. It was held that these facts constituted no defense, because the agreement was void as against public policy. The court

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 impair 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 useful employments and capacities. It would, to use the language of Mr. Justice Barrett in People ex rel. Gill v. Smith, 5 N. Y. Cr. R., at page 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.' Every citizen is deeply interested in the strict maintenance of the constitutional right freely to pursue a lawful avocation, under conditions equal as to all, and to enjoy the fruits of his labor without the imposition of any conditions not required for the general welfare of the community. The candid mind should shrink from the results of the operation of the principle contended for here, for there would certainly be a compulsion, or a fettering, of the individual, glaringly at variance with that freedom in the pursuit of happiness which is believed to be guarantied to all by the provisions of the fundamental law of the state. The sympathies, or the fellow-feeling, which as a social principle underlies the association of workingmen for their common benefit, are not consistent with a purpose to oppress the individual, who prefers by single effort to gain his livelihood. If organization of workingmen is in line with good government, it is because it is intended as a legitimate instrumentality to promote the common good of its members. If it militates against the general public interest, if its powers are directed towards the repression of individual freedom, upon what principle shall it be justified? * # * So far as a purpose appears from the defense set up to the complaint that no employé of a brewing company shall be allowed to work for a longer period than four weeks without becoming a member of the Workingmen's Local Assembly, and that a contract between the local assembly and the Ale Brewers' Association shall be availed of to compel the discharge of the independent employé, it is in effect a threat to keep persons from working at the particular trade and to procure their dismissal from employment."

This long quotation is warranted by the strong reasoning which applies directly to

This

the case in hand. I unite with Judge GRAY in recognizing that case as a sound exposition of the law. I invoke its authority as controlling this appeal, for the facts of the two cases are so analogous that the same principle must govern both. If the agree ment in that case was against public policy, what is to be said of the one before us? That agreement was held void because it required the discharge of workmen if they would not join a particular union, thus compelling them to join against their will. agreement contains the same requirement, because the phrase "cease to employ" is merely a euphemism for the word "discharge," and in addition there are other provisions equally subversive of personal liberty and equally opposed to public policy. Would a court of equity enforce such an agreement by a decree for specific performance? Would it command the employer to discharge workmen simply because they refused to join the union? Would it restrain him from employing competent men because they were not members of the union? Would it restrain him or his employés from taking apprentices? Would it compel both master and man to obey the regulations of the union, whether reasonable or unreasonable?

The promissory note sued upon is collateral security for the faithful performance of the agreement by the employer, and a violation of any stipulation thereof, according to its terms, renders the note collectible. Will court of law make the employer pay the note because he refused to discharge a competent man who would not join the union, or who resigned from the union, or refused to obey its rules and submit to its dictation? Will it permit a recovery thereon because nonunion men were employed, or apprentices taken, or for a failure to comply with any one of the many stringent stipulations? I think that neither a court of equity nor a court of law should attempt to enforce the agreement, directly or indirectly, because it is utterly void as a flagrant violation of public policy. I vote for affirmance.

CULLEN, C. J., and HAIGHT and WERNER, JJ., concur with GRAY, J. BARTLETT, J., concurs with VANN, J. O'BRIEN, J., absent.

Ordered accordingly.

(183 N. Y. 223)

PEOPLE ex rel. ARMSTRONG v. WARDEN OF CITY PRISON OF NEW YORK. (Court of Appeals of New York. Dec. 5, 1905.) 1. CONSTITUTIONAL LAW-EQUAL PROTECTION OF LAWS-TERRITORIAL INEQUALITY.

Laws 1904, c. 432, regulating the keeping of employment agencies in cities of the first and second class, is not, because it applies only to cities of the specified classes, in violation of

Const. U. S. Amend. 14, guarantying the equal protection of the laws.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 681, 688-696.] 2. SAME-INTERFERENCE WITH LAWFUL BUSI

NESS.

Laws 1904, c. 432, regulating the keeping of employment agencies in cities of the first and second class, and requiring the obtainment of licenses for the keeping of such agencies, is a valid exercise of the police power, enacted for the protection from fraud and oppression of ignorant people seeking employment, and does not infringe the constitutional right of a citizen to carry on a lawful business without legislative interference.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 164-166.]

Appeal from Supreme Court, Appellate Division, First Department.

on

Habeas corpus proceedings by the people, the relation of James J. Armstrong, against the warden of the city prison of the city of New York. From an order of the Appellate Division (95 N. Y. Supp. 1152, 107 App. Div. 617), affirming an order dismissing the writ and remanding relator to custody, relator appeals. Affirmed.

Charles E. Le Barbier, for appellant. William Travers Jerome, Dist. Atty. (Robert S Johnstone, of counsel), for respondent.

O'BRIEN, J. The courts, below have dismissed a writ of habeas corpus sued out by the relator to inquire into the cause of his imprisonment and to be discharged therefrom. The defendant made return to the writ to the effect that he detained the relator in his custody by virtue of a warrant of commitment made by one of the city magistrates of the city of New York on the 31st day of March, 1905, and a copy of the warrant was annexed to the return and made a part thereof. After a hearing upon the petition, the return, and the writ, the court decided that the relator was properly committed, and the order was affirmed on appeal.

There is no dispute whatever about the facts, and the relator's contention raises simply a question of law. He was detained upon the warrant of commitment by virtue of a judgment or order made by the committing magistrate on the hearing of a complaint against him for violation of a statute. The statute is chapter 432 of the Laws of 1904, and is entitled "An act to regulate the keeping of employment agencies in the cities of the first and second class where fees are charged for procuring employment or situations." The statute contains ten sections and purports to regulate the business of employment agencies in the cities mentioned in the title in various ways not necessary here to enumerate. The question in this case turns upon the second section, which reads as follows: "No person shall open, keep or carry on any such employment agency in the cities of the first and second class, unless every such person shall procure a license therefor

from the mayor of the city in which such person intends to conduct such agency. Any person who shall open or conduct such an employment agency without first procuring such license, shall be punishable by a fine not exceeding two hundred and fifty dollars, or on failure to pay such fine, by imprisonment not exceeding thirty days. Such license shall be granted upon the payment to said mayor of a fee of twenty-five dollars annually for such employment agency in cities of the first and second class." It is admitted that the relator kept an employment agency in the city of New York, and was engaged in that business without having procured any license from the mayor, or having complied in any respect with the provisions of the statute.

The relator insisted in the courts below, and insists in this court, that the statute upon which the commitment is based is void, as in conflict with the state and federal Constitutions. It is argued that it is in conflict with the equal rights clause of the fourteenth amendment of the federal Constitution, since it applies only to cities of the first and second class. But it seems to be well settled in this court and in the federal court that the equality within the contemplation of the fourteenth amendment does not necessarily include a territorial equality, and that legislation which, though limited in the sphere of its operations, affects alike all persons similarly situated within such sphere, is valid. People v. Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707; Mallett v. North Carolina, 181 U. S. 589, 21 Sup. Ct. 730, 45 L. Ed. 1015; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ot. 357, 28 L. Ed. 923; Williams v. People, 24 N. Y. 405. Criminal laws are not necessarily unconstitutional, even if they bear unequally upon persons in different parts of the state. The evil which 'the Legislature may have in view in passing such laws may exist only in the great cities of the state, and have no existence in rural districts.

ful employment. A statute to promote the public health, the public safety, or to secure public order, or for the prevention or suppression of fraud, is a valid law, although it may in some respects interfere with individual freedom. All business and occupations are conducted subject to the exercise of the police power. Individual freedom must yield to regulations for the public good. It may be laid down as a general principle that legislation is valid which has for its object the promotion of the public health, safety, morals, convenience, and general welfare, or the prevention of fraud or immorality. We think that such is the character of the statute in question. It was intended to regulate employment agencies in cities. The Legislature had the right to take notice of the fact that such agencies are places where emigrants and ignorant people frequently resort to obtain employment and to procure information. The relations of a person so consulting an agency of this character with the managers or persons conducting it are such as to afford great opportunities for fraud and oppression, and the statute in question was for the purpose of preventing such frauds, and probably for the suppression of immorality.

We think that the objections to the statute are not well founded, that it is a valid law, and therefore the order should be affirmed.

CULLEN, C. J., and BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. GRAY, J., concurs in result.

Order affirmed.

(183 N. Y. 233) GEARTY. MAYOR, ETC., OF CITY OF NEW YORK.

recover

(Court of Appeals of New York. Dec. 5, 1905.)
1. EVIDENCE-SELF-SERVING DECLARATION.
Plaintiff, a contractor, sued to
money deducted from the contract price of cer-
tain work performed for a city because of delay
in its completion, and also to recover damages
because the city unlawfully required certain
work to be done a second time. Held, that the
admission in evidence of a letter written by the
secretary of the department of public works to
the plaintiff, to the effect that plaintiff was not
doing the work in accordance with contract, and
that it was being unnecessarily delayed, and that
he was willfully violating the conditions of the
contract, which was not offered for the purpose
of showing notice, was error, as the statements
therein were merely self-serving declarations on
the part of the defendant, not binding upon the
plaintiff.

The other objection made by the relator to
the validity of the statute presents a ques-
tion which has been very much discussed in
this court, as well as in other courts, and
that is that the statute interferes with the
relator's right to carry on a lawful business
without being hampered by statutory regu-
lations. The cases are abundant which hold
that the individual has the right to carry on
any lawful business, or earn his living in any
lawful way, and that the Legislature has no
right to interfere with his freedom of action
in that respect, or otherwise place restraints
upon his movements. But, of course, these
cases must all be understood as applying to
laws that are not within the police power.
If the statute comes fairly within the scope
of the police power, it is a valid law, al-
though it may interfere, in some respects,
with the liberty of the citizen, which, of
course, includes his right to follow any law- | Division, First Department,

2. TRIAL-OBJECTIONS TO EVIDENCE-SUFFI

CIENCY.

Where the court was advised of the purport of certain incompetent evidence, and knew what was sought to be proved by it, an objection on the ground of irrelevancy was improperly overruled, where the incompetency of the evidence was clearly apparent.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 196-200.1

Gray, Haight, and Vann, JJ., dissenting.
Appeal from Supreme Court, Appellate

Action by James A. Gearty against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the Appellate Division (88 N. Y. Supp. 1102, 96 App. Div. 625), affirming a judgment for defendant, plaintiff appeals. Reversed.

On May 18, 1895, the plaintiff entered into a contract with the defendant to regulate, set curbstones, and pave with granite block the roadway of Transverse Road No. 4, crossing Central Park at Ninety-Seventh street from Fifth avenue to Central Park West (Eighth avenue), in the city of New York. The contract, among other things, contained a provision that the pavement should be laid upon a foundation of concrete composed of one part of cement of a specified kind, two parts of clean sharp sand, and five parts of broken stone. It further provided that the work should be completed on or before the expiration of 50 days from the time of commencement, and if not completed within that time the city should have the right to deduct $20 a day as liquidated damages for each day consumed by the work beyond the time fixed for completion. There were further provisions to the effect that the work should be done to the satisfaction of the engineer in charge of the work and that all defective work should be taken up and replaced. The city claimed that certain portions of the concrete did not conform to the contract specifications and compelled the plaintiff to take up and replace about 5,000 cubic yards thereof. The work made necessary by the removal of this alleged defective concrete, and the substitution of material of proper kind, extended the time of the completion of the contract beyond the 50 days fixed therefor. The plaintiff claimed that the concrete furnished was of proper character and that the city unlawfully compelled him to remove the portions thereof in question. He further claimed that the time consumed in doing the work beyond the period fixed in the contract was made necessary by such unlawful action on the part of the city in compelling him to remove the alleged defective portion of the concrete and do the work a second time. The city deducted from the contract price the sum of $20 for each of 22 days, being the length of time which it claimed the plaintiff had taken beyond the period fixed for the completion of the contract. The amount thus deducted was $440. Two causes of action are set forth in the complaint: (1) To recover the sum of $440 alleged to have been unlawfully deducted by the defendant for the 22 days' overtime; (2) to recover $10,000 for damages suffered by reason of certain work being unlawfully and improperly required to be done a second time. Upon the trial the evidence was conflicting as to whether the concrete which the plaintiff was compelled to remove conformed to the specifications of the contract. The issues were submitted to the jury, which rendered a verdict in favor of the defendant upon both causes of action, and the judgment entered upon this verdict was

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unanimously affirmed at the Appellate Division.

L. Laflin Kellogg and Alfred C. Petté, for appellant. John J. Delany, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

WERNER, J. (after stating the facts). The unanimous affirmance by the Appellate Division has foreclosed all questions upon this appeal, except those arising out of exceptions to rulings upon evidence and the charge of the trial court. Two such questions are presented by the appellant, but we deem it necessary to consider only one of them, and that relates to the admission in evidence, on behalf of the defendant, of a letter written during the course of the work, by the secretary of the defendant's department of public works, to the plaintiff. This letter reads as follows: "I am directed to inform you of the adoption of the following resolution at a meeting of the board held this day: 'Whereas, this department entered into a contract with James A. Gearty, under date of May 18, 1895, for regulating, paving, etc., the roadway of Transverse Road No. 4, Central Park; and Whereas, it appears that the work under said contract is being delayed and is not being done in accordance with the terms of said contract: Therefore, resolved, that the commissioners of the department of public parks are of the opinion and do certify in writing that said work is unnecessarily and unreasonably delayed, and that said contractor is willfully violating the conditions of said contract, and that said work is not being done or progressing according to the terms of said contract. Resolved, that the secretary be directed to notify said contractor, pursuant to the provisions of said contract, to discontinue all work thereunder, and that the commissioners of the department of public parks will complete the work as therein provided.'" When this letter was offered in evidence the counsel for the plaintiff objected to it and said: "I fail to see its relevancy. That is an effort to take advantage under a peculiar clause of the contract which allows them to take away the work. No such notice has been stated. No such notice has been acted upon at the time we were discussing this work." The counsel for the defendant then said: "It is to show the manner of the plaintiff's performance. It is one of the issues here." The court overruled the objection, saying, "It may have some bearing on the penalty they imposed," and the defendant's counsel took an exception.

There was a clause in the contract which, so far as material to this discussion, provided that if the commissioners of the park department should be of opinion that the contractor was not performing the work in compliance with the contract, they could notify him in writing to discontinue work thereunder and complete the same themselves. This letter was evidently sent in pursuance

(183 N. Y. 227)

In re SOOP.
CORNELL v. BURHANS.

(Court of Appeals of New York. Dec. 5, 1905.)
APPEAL ORDERS APPEALABLE APPEALS
FROM INTERMEDIATE COURT.

Under Code Civ. Proc. § 2260, providing that an appeal may be taken from a final order in summary proceedings to recover possession of real property to the same court and in the same manner as where an appeal is taken from a judgment rendered in that court, and section 2261, providing that an appeal cannot be taken to the Court of Appeals "upon such an appeal" unless the Appellate Division shall allow the same, and section 3405, providing for appeals from justices' judgments to the County Court, an appeal lies to the Appellate Division from an order of the County Court, reversing a final order in a summary proceeding instituted before a justice of a City Court, notwithstanding the provisions of section 1357 of the Code, giving a right of appeal to the Appellate Division from orders affecting substantial rights made in special proceedings arising only in courts of record.

Appeal from Supreme Court, Appellate Division, Third Department.

Petition by Henry C. Soop, as agent and attorney of the estate of Thomas Cornell, against Webster H. Burhans. From an order of the Appellate Division (94 N. Y. Supp. 463, 106 App. Div. 341), dismissing an appeal from an order of the County Court reversing an order of the City Court in favor of petitioner, petitioner appeals. Reversed.

of some design on the part of the commissioners to take advantage of this clause of the contract, but the record discloses that no such action was ever taken and that the plaintiff was permitted to complete the work. It will be observed that the letter contains statements to the effect that the plaintiff was not doing the work in accordance with the terms of the contract, that it was being unnecessarily and unreasonably delayed, and that he was willfully violating the conditions of the contract. The letter was not offered in evidence for the purpose of showing notice, and had in fact been withdrawn by a subsequent communication. Its admission in evidence was attempted to be justified on the ground that it showed the manner of performance, and the learned trial judge evidently so understood it, as he said it might have some bearing on the penalty imposed for failure to proceed with the work in the time specified by the contract. In this view of the case it is obvious that the statements in the letter were merely self-serving declarations made by officers of the defendant, who assumed to characterize and determine the manner of plaintiff's performance of the work under the contract. They were ex parte statements, in no way binding on the plaintiff, and were clearly inadmissible. Bank of British North America v. Delafield, 126 N. Y. 410, 27 N. E. 797; Austin v. Bartlett, 178 N. Y. 310, 70 N. E. 855; Learned v. Tillotson, 97 N. Y. 1, 49 Am. Rep. 508; Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385. The learned counsel for the respondent seeks to avoid the effect of this error by claiming that the objection made by the plaintiff's counsel did not point out to the court the real ground of its inadmissibility. The colloquy which occurred between counsel and court at the time of the admission of the letter indicates quite clearly, we think, | January, 1904. The issues were tried before that the court was advised of the purport of the evidence and what was sought to be proved by it. While the objection was placed upon the ground of irrelevancy, its incompetency was clearly apparent. M. Groh's Sons v. Groh, 177 N. Y. 8, 15, 68 N. E. 992. Nor can we properly say that the evidence was harmless. The trial was before a jury, and these statements, coming from the officers of the city, may have had considerable weight with the jury. The burden is on the respondent to show that the reception of the letter was harmless, and this he has failed to do. Foote v. Beecher, 78 N. Y. 155; Jefferson v. N. Y. E. R. R. Co., 132 N. Y. 483, 486, 30 N. E. 981; People v. Strait, 154 N. Y. 165, 171, 47 N. E. 1090.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

CULLEN, C. J., and O'BRIEN and BARTLETT, JJ., concur. GRAY, HAIGHT, and VANN, JJ., dissent.

Judgment reversed, etc.

This is a summary proceeding to recover the possession of certain real estate situated in the city of Kingston. It was instituted in the City Court of Kingston by the appellant and petitioner, Soop, as agent and attorney of the estate of Thomas Cornell, deceased, to oust the respondent, Burhans, from the possession of such real property after the expiration of a lease thereof executed in

a jury, which rendered a verdict in favor of the petitioner, and a final order awarding him possession of the premises was entered thereon. From this order an appeal was taken to the Ulster County Court, where it was reversed. A further appeal was then taken to the Appellate Division of the Supreme Court, but the appeal was there dismissed. That court has allowed an appeal to this court from its order dismissing the appeal, and has certified the following question: "Is the right to appeal to the Appellate Division of the Supreme Court given in a summary proceeding to recover possession of real property from an order of the County Court made upon an appeal from and reversing, with costs, a final order in a proceeding instituted before a justice of the peace of the City Court of Kingston?"

H. H. Flemming, for appellant. John D. Eckert, for respondent.

WERNER, J. (after stating the facts). We think the answer to the question propounded by the court below is to be found

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