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what the facts were upon this testimony, and court simply found the evidence as given by then arriving at a legal conclusion based up the witnesses and then drew the conclusion, on the facts found, simply made findings set which, upon the record as it stands, is unting forth the testimony of Rose E. Dougb supported by any finding of fact. erty and Irving McCausland, pro and con, It is no part of our present duty to decide and upon the evidence thus stated he conclud. whether the policy in suit sball ultimately ed "that neither the defendant, nor John be reformed or not. What we say here is McCausland, the defendant's agent, nor the for the purpose of illustrating the obvious said Irving McCausland, knew or understood, inconsistency of basing a legal conclusion at the time of the writing and issuing of said upon a mere statement of evidence that is policy of insurance, that the said Catharine conflicting or from which opposing inferences Dougherty was dead." Upon the record thus may be drawn, and not to indicate our views set forth there was predicated the conclusion upon the merits. It will be time enough to that there was no mistake, mutual or com pass upon the legal proposition involved mon to both of the parties to the contract, when the court of first instance shall have and that the evidence failed to justify the furnished us with a finding of fact upon reformation thereof. The judgment entered which a legal conclusion may properly be upon that decision (84 N. Y. Supp. 10) was predicated. While the question of practice affirmed by a divided court at the Appellate involved may not be of great importance in Division (88 N. Y. Supp. 1096); and from this simple case, it is chiefly significant be that afirmance the parties in interest who cause it is one of several similar instances are opposed to the defendant insurance com that have recently been brought before us in pany have taken a final appeal to this court.

which we have felt constrained to hold that The most obvious feature of the record be such procedure is practically a mistrial. Milfore us is that, if the statement of the plain ler v. N. Y. & N. S. Ry. Co., 183 N. Y. 123, 75 tiff Rose E. Dougherty as to the death of her N. E. 1111; Cuyler v. Wallace, 183 N. Y. 291, mother is to be taken as true, there was evi- | 76 N. E. 1. dence upon which the trial court could have There were other issues raised by the based the conclusion that the instrument pleadings; but, as the trial court did not de should be reformed on the ground of mutual cide them, they present nothing for review mistake. So, on the other hand, if the finding upon this appeal. were that the fact of Catharine's death had For these reasons, and without passing not been communicated to McCausland, it upon the merits of the controversy, the judg. would follow as a necessary conclusion that ment herein should be reversed, and a new there was no ground for reformation. Had trial granted, with costs to abide the event. the fact been found to be as stated by Rose E. Dougherty, there would have been ample CULLEN, O. J., and GRAY, O'BRIEN, support for the conclusion that there was a BARTLETT, HAIGHT, and VANN, JJ., conmutual mistake in respect of the beneficiary cur. to be named in the policy, or a mistake on the part of Rose E. Dougherty and an at Judgment reversed, etc. tempted fraud on the part of McCausland, and in either event a reformation of the con

(183 N. Y. 2071 tract might properly have been decreed. The question of fact upon which everything hinges

JACOBS V. COHEN et al. In this case is whether the plaintiff Rose E. (Court of Appeals of New York. Nov. 28, 1905.) Dougherty, before the delivery of the policy CONTRACTS-EMPLOYMENT OF UNION LABORin suit, told Irving McCausland that her

VALIDITY. mother was dead. Upon that crucial ques

A contract between an employer and a labor

union, whereby the employer agreed to employ tion there is no finding one way or the other.

for a certain period only members of a union in If the trial court had found that no such good standing, and under which contract the statement was made, then there would be

union bound itself to furnish the services of its justification for the further finding "that

members, is not void as in violation of public

policy, so that a note given by the employers to neither the defendant, nor John McCausland, secure the contract and to be applied as liquithe defendant's agent, nor the said Irving dated damages on violation thereof is valid. McCausland, knew or understood, at the [Ed. Note.--For cases in point, see vol. 11, time of the writing and issuing of the said

Cent. Dig. Contracts, $$ 547, 568.) policy of insurance, that the said Catharine

Vann and Bartlett, JJ., dissenting. Dougherty was dead.” But if the finding | Appeal from Supreme Court, Appellate Di. were that the fact of Catharine Dougherty's vision, Second Department. death was communicated to Irving McCaus Action by Henry Jacobs, as president of land, who represented the insurance com the Protective Coat Tailors' and Pressers' pany in the negotiations for the policy, it Union, Local 55, of the United Garment would be rather difficult, if not quite im Workers of America, against Morris Co possible, to draw the inference that the del ben and others. From an order of the fendant company and its agents were igno Appellate Division (90 N. Y. Supp. 854, 99 rant of the fact. Instead of finding either | App. Div. 481), reversing an interlocutory way upon this question of fact, the trial | judgment entered on an order of a Special Term sustaining the demurrer to the answer, 1 given to the defendants to appeal to this plaintiff appeals. Reversed.

court, and the following questions were cerE. H. M. Roehr, for appellant. William

tified for our review, namely: "(1) Is a conLiebermann, for respondents.

tract made by an employer of labor, by which

he binds himself to employ and to retain in GRAY. J. The plaintiff sues the makers

his employ only members in good standing of and the indorser of a promissory note, pay

a single labor union, consonant with public able to the order of the Protective Coat Tail

policy, and enforceable in the courts of jusors' Union, of which he is the president, to

tice in this state? (2) Is the 'second' separecover the amount due thereon. The an

rate defense, contained in the answer herein

of the defendants, Morris Cohen and Louis swer of the defendants denied the allegations of the complaint, except as to the making of

Cohen, insufficient upon the face thereof to

constitute a defense ?" the note, and set up as a distinct and separate defense that it was given "as collateral

If we refer to the prevailing opinion of the security to the plaintiff, to be applied as

Appellate Division, it appears that the quesliquidated damages for violation by the de

tion in this case was there regarded as withfendants of any of the covenants and con

in our decision in Curran v. Galen, 152 N. Y. ditions of a certain contract." The particu

33, 46 N. E. 297, 37 L, R. A. 802, 57 Am. St. lar part of the contract set forth is as fol

Rep. 496, and hence that the contract was lows: "That the party of the first part

unlawful, because contrary to public policy. (meaning the makers' firm) shall not employ

In this view, I think the learned justices beany help whatsoever other than those be

low erred. The contract is annexed to and longing to and who are members of the party

made part of the answer, and is tripartite, of the third part (meaning a 'union' of the

between the defendants, Morris and Louis firm's employés] and in good standing, and

Cohen, a firm engaged in the tailoring busiwho conform to the rules and regula

ness, their employés, represented by an at: tions of the said party of the third part, and

torney in fact, and a voluntary association, the said party of the first part shall cease to

formed by the latter and called the Protecemploy any one and all those employés who

tive Coat Tailors' and Pressers' Union, of are not in good standing, and who do not

which the plaintiff is president. It provided conform to and comply with the rules and

for the employment by the Cohens of their regulations of said party of the third part,

employés in their various skilled capacities upon being notified to that effect by its duly

for the term of one year, for a system of credentialed representatives. That the party

work by the week, for the number of hours of the first part shall not engage any help of work and for the mode of payment of the whatsoever, even those who are members of

wages, and, generally, for the regulation of the party of the third part, without their first

the relations between the employers and having produced a pass card duly executed

their employés, including this particular and signed by the authorized business agent

agreement not to employ others than memof the party of the third part; said card to bers of their employés' union. Whatever else show that the bearer thereof is a member in may be said of it, this is the case of an agreegood standing of the party of the third part, ment voluntarily made by an employer with and that he has complied with the rules and

his workmen, which bound the latter to give regulations thereof in force at that time."

their skilled services for a certain period of The answer then alleged "that the said con time, upon certain conditions, regulating the tract is in restraint of trade, and the said performance of the work to be done, and contract has for its purpose the combina restricting the class of workmen who should tion of employers and employés, whereby the

be engaged upon it to such persons as were freedom of the citizen, in pursuing his lawful in affiliation with an association, organized trade and calling, is through such contract, by the employers' workmen with reference combination, and arrangement hampered and to the carrying on of the very work. It restricted, and has also for its purpose the would seem as though an employer should coercing of workingmen to become members be, unquestionably, free to enter into such a of the said enployés' organization and come contract with his workmen for the conduct of under its rules and its conditions, under the the business, without its being deemed obpenalty of the loss of their positions and of noxious upon any ground of public policy.. deprivation of employment, and that such If it might operate to prevent some persons purposes are in restraint of trade, that they from being employed by the firm, or, possibly, hamper and restrict the freedom of a citizen from remaining in the firm's employment, in pursuing his lawful trade and calling, and that is but an incidental feature. Its rethat they are against public policy and un strictions were not of an oppressive nature, lawful.” To this defense the plaintiff de operating generally in the community to murred for being insufficient in law. The prevent such craftsmen from obtaining emdemurrer was sustained at the Special Term, ployment and from earning their livelihood. but upon appeal to the Appellate Division in It was but a private agreement between an the Second Department the judgment sus- employer and his employés concerning the taining the demurrer was reversed and the conduct of the business for a year, and securdemurrer was overruled. Permission was 'ing to the latter an absolute right to limit

the class of their fellow workmen to those , liberty is involved in combination, that is, persons who should be in affiliation with an nevertheless, but an extension of the right organization entered into with the design of freedom of action. If, therefore, the of protecting their interests in carrying on organization of workingmen is not obnoxious the work, as, indeed, the agreement recites. to moral or to legal criticism, and only the Nor does the answer aver that it was in use or directing of the power of the organizatended thereby to injure other workmen, or tion to injure others, by preventing them that it was made with a malicious motive to from following their trade, is visited by the coerce any to their injury, through their law with its condemnation, how can it fairthreatened deprivation of all opportunity of ly be said that the refusal of a body of men pursuing their lawful avocation. To coerce to work with those not in affiliation with workmen to become members of the em them, and an agreement with the employer ployés' organization, through such a con by which such are excluded from the shop, tract, is not the allegation of something is acting beyond legally justifiable limits? which the law will necessarily regard as

Whether the reason for the refusal be purecontravening public policy. The allegation ly sentimental, or whether based upon more that its "purposes are in restraint of trade," substantial grounds, such as, for instance, or that "they hamper and restrict the free an assurance of the character and of the dom of a citizen," or "that they are against competent skill of their fellow workmen, is public policy," is the mere statement of a

not material. legal conclusion.

The case of Curran v. Galen, supra, which If the question were more correctly

| stands unaffected as an authority, presented a presented by some appropriate allegation. I very different state of facts. There the plainstill would be of the opinion that the agree

tiff demanded damages of the defendants, who ment is not one which comes under the were officers and members of an association condemnation of the law. The right of of workingmen in the brewing business in the workingmen to unite and to organize for

ta and to organize for | city of Rochester, for having conspired to the protection of their interests and welfare injure him and to take away his means of is not denied. It has been, expressly and earning a livelihood. In substance he alleged recently, declared by this court. Curran v. in his complaint that he was threatened by Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. certain of the defendants, members of the 802, 57 Am. St. Rep. 496; National Protective association, that unless he became a member Association v. Cumming, 170 N. Y. 315, at | they would obtain his discharge from employpages 320, 334, 338, 63 N. E. at pages 369, 374, ment and would make it impossible for him

58 í 376

R A. 135. 88 Am. St. Rep. 648). | to obtain any employment in that city or else The inviolability of the right of persons to where; that, upon his refusing to become a freedom of action may well extend to any member of the association, the defendants concert of action for legitimate ends, it con forced his employers to discharge him, and sistent with the maintenance of law and by false and malicious reports circulated in order in the community, and if not interfer regard to him sought to bring him into ill reing with the enjoyment and the exercise by pute with members of his trade and employothers of their constitutional rights. Their ers and to prevent him from prosecuting his right to combine and to co-operate for the trade and earning a livelihood. The answer promotion of such ends as the increase of to the complaint, among other defenses, set wages, the curtailment of hours of labor, up an agreement between the Ale Brewers' the regulation of their relations with their Association in the city of Rochester and the employer, or for the redress of a grievance, particular association referred to in the comis justifiable. Their combination is lawful, plaint to the effect that all employés of the when it does not extend so far as to inflict | brewery companies should be members of the injury upon others, or to oppress and crush association and that no employé should work them by excluding them from all employ for a longer period than four weeks without ment, unless gained through joining the becoming a member, and that, upon the plainlabor organization or trades union. This we | tiff's refusal to comply with defendants' rehave decided, and this the law of the state quest to become a member of the association, sanctions. Curran v. Galen, supra; National his employers were notified thereof in accordProtective Association v. Cumming, supra; ance with the terms of the agreement with Pen. Code, $ 170. As it was observed in Cur the Ale Brewers' Association. To this matran v. Galen, an underlying law of human ter set up as a defense the plaintiff demurred, society moves men to unite for the better and the order sustaining the demurrer was achievement of a common aim, and this affirmed in this court. I endeavored to point social principle justifies organized action. out in the opinion that the agreement could Organization, or combination, is a law of be no justification for the acts charged in the human society. It is open to all orders of complaint, and that it could not legalize a men, who desire to accomplish some lawful plan for compelling other workingmen to join purpose through the greater strength and the defendants' organization, at the peril of effectiveness which organization offers over being deprived of employment and of making individual effort. If surrender of individual a livelihood. However lawful and legitimate the purposes of the organization of the work | contract), does it lie in their mouths now to ingmen may have been, its power and in. urge its illegality? That, incidentally, it fluence were being unlawfully wielded in might result in the discharge of some of those efforts to keep other persons from working employed, for failure to come into affiliation at the particular trade and to procure their with their fellow workmen's organization, or dismissal from employment. In the general that it might prevent others from being endiscussion of the question I conceded the gaged upon the work, is neither something general right of workingmen to organize for of which the employers may complain, nor the common good of the members, and sought something with which public policy is conto show how the agreement and acts there in cerned. question were contrary to public policy and I think that the questions certified should unlawful, because oppressive and restricting | be answered in the affirmative, and therefore the freedom of others to engage in the same that the order of the Appellate Division, reline of occupation, or to make a livelihood at versing the interlocutory judgment and overtheir trade, as a penalty for refusing to join ruling the demurrer, should be reversed, and the defendants' organization. That was a that the interlocutory judgment, which susvery different case from the present one. The tained the demurrer, should be affirmed, with subsequent case of National Protective Associ. | costs in all the courts to the appellants. ation v. Cumming, supra, in no wise overruled Curran v. Galen. It was not at all within VANN, J. (dissenting). The contract which the principle of the prior case. It concerned the court is about to pronounce valid and in a dispute between rival labor organizations. accord with public policy is in substance as T'he plaintiff organization sought to restrain follows: The defendants were the party of the defendants from preventing the employ the first part; their own employés, “by Barnment of its members and from procuring their ard Kaplan, their representative and attorney discharge by any employer through threats in fact,” party of the second part; and the and strikes, and the reversal of a judgment | Protective Coat Tailors' and Pressers' Union, awarding the relief demanded was, affirmed | Local No. 55, of the United Garment Workers by this court. The right of the defendants in of America, a voluntary association organized that case to refuse to permit their members by the parties of the second part, acting to work with others, who were members of a “through Barnard Kaplan, its secretary," rival organization, and to bring about their party of the third part. It consists chiefly discharge upon the common work in which of restrictive stipulations against the employthey were engaged, if confined to threats to ers, who agree to employ the persons already withdraw from the work, or to ordering a

in their employment "as operators, basters, strike of their own members, without resort

finishers, pressers, fitters, bushelers, and butto injurious acts, was admitted. The defend

tonhole makers, each in his own capacity and ants' effort was not to compel the others to

for no other work than that he was engaged join with their organization as a condition of

for," during the period of one year. . After being allowed to work, and, whether it was

fixing the number of working hours per week, to secure only the employment of approved

it was agreed that "under no circumstances workmen (which was a possible inference

shall work be carried on by the parties of the from the facts), or whether it was to obtain

first and second part at any other hours than an exclusive preference in employment, if

herein specified without a written consent of without resort to force or the commission of

the party of the third part, executed by its duly authorized officer.

*" any other unlawful acts, it was not within

It was

further agreed "that the party of the first the condemnation of the law. Within even the view expressed by the

part shall not employ any help whatsoever minority of the judges of this court in the

other than those belonging to and who are

members of the party of the third part and in Cumming Case, the contract in the present

good standing and who conform to the rules case was not unlawful which the employer

and regulations of the said party of the third made with his workingmen. Judge Vann as

part; and the said party of the first part serted the right of every man "to carry on

shall cease to employ any one and all those bis business in any lawful way that he sees

employés who are not in good standing and fit. He may employ such men as he pleases,

who do not conform to and comply with the and is not obliged to employ those whom, for

rules and regulations of said party of the any reason, he does not wish to have work

third part, upon being notified to that effect for him. He has the right to the utmost free

by its duly credentialed representatives. The dom of contract and choice in this regard."

party of the first part hereby agrees to abide This contract was voluntarily entered into by the rules and regulations of the party of by the Cohens, and, if it provided for the the third part, as known in the trade, and to performance of the firm's work by those only permit and allow representatives of said who were accredited members in good stand party of the third part to enter their shop or ing of an organization of a class of working shops at any and all hours of the day and men whom they employed, were they not free night for the purpose of inspection and en. to do so? If they regarded it as beneficial forcement of the terms of this contract, as for them to do so (and such is a recital of the well as all the rules and regulations herein referred to. The party of the first part shall 1 Even in an emergency and with the consent not engage any help whatsoever, even those of their workmen, they could not exceed who are members of the party of the third the hours of labor prescribed by the union. part, without their first having produced a A baster, however willing, could not sew on pass card duly executed and signed by the a button, and a presser, even if he wanted authorized business agent of the party of the to, could not make a buttonhole. If a third part, said card to show that the bearer strong man, capable of working ten hours thereof is a member in good standing of the a day, wished to do so, and his employers

of the third part and that he has com | were willing to pay him extra for the overplied with the rules and regulations thereof

time, he could not without the written conin force at that time. The party of the first

sent of the union. A qualified workman, not part shall not employ more than one helper a member of the union, might be unwilling to every two operators, or one helper to two

to join, yet he could not get work unless he basters, and under no consideration to employ

| did. If an employé wished to leave the any apprentices.” The parties of the second

union, he could not without losing his place. part also agreed not to employ apprentices

The employers could not hire nonunion men and to abide by the rules and regulations

who wished to work for them, nor have of the party of the third part. “In the event

extra helpers in their business, and even of any one of the parties of the second part

the workmen themselves could not take apnot remaining and continuing during the en

prentices. Employers were bound to abide tire period of this contract in good standing,

by the rules and regulations of the union, or does not in all respects conform with the

and permit its representatives to enter their rules and regulations of the party of the third

shops at any and all hours of the day and part, then the party of the first part shall cease to employ such employé whoever he

night for the purpose of inspection and enmay be. * That the parties of the

forcing the terms of the contract as well

as the rules and regulations. The employés second part may quit work during a socalled 'sympathy strike,' provided no new de

could refuse to work during a "sympathy mands are made by them. Such quitting of

strike" and paralyze the business without work on their part shall in no way affect

à ffecting the validity of the agreement. the validity of this agreement or suspend its

They were bound to obey the rules and reg. operation.” A minimum scale of wages was

ulations of the union, whatever they might agreed upon, and finally the party of the be, that were in force at any time during the first part agreed to deposit "and hereby does year covered by the agreement. Thus masdeposit with the party of the third part a ter and men bound themselves by these promissory note in the sum of two hundred

remarkable stipulations made with a volundollars • • as security for the faith tary association, which had no pecuniary ful performance by the party of the first part

interest in the business or in the labor of of all the covenants and conditions herein those employed. The labor of the employés contained . * as liquidated and as belonged to themselves, and they had a certained damages upon the commission of right to sell it to whom they chose and on any breach or violation of any of the cove such conditions as were mutually satisfactonants herein above set forth on the part of ry. The business belonged to the defendants, the party of the first part.

*" The and they had the right to employ any man only stipulation on the part of the union was who was willing to work for thein; but by that it would "furnish any and all help it this agreement an outsider intervened, and may have on its application books," which compelled those who owned the business it was to keep for the benefit of the other and those who did the work to submit to parties, without charge of any kind to any its direction. As was said by the court beperson.

low, the will of the employer "was subjected The business affected did not belong to the by executory contract to an arbitrary domunion, or its members, but to the defendants, ination, which not only deprived” him “of all who agreed, voluntarily, of course, to employ freedom of action, but also crushed the rights and discharge workmen at the dictation of and interests of all independent competition the union. The labor department of the in- | in the field of labor." dustry was under the control of the union, The manifest purpose of the contract was for both employer and employed, abrogating to prevent competition and create a monoptheir own rights, placed themselves under oly of labor. A combination of capital, or its command in that respect. This was a labor, or as in this case of both, to prevent form of slavery, even if voluntarily subinit the free pursuit of any lawful business, ted to; for whoever controls the means by trade, or occupation, is forbidden both by which a man lives controls the man himself. statute and the common law. Matter of DaBoth the proprietors and the workmen seem vies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. to have walked under the yoke of the union 855; Laws 1897, p. 310, c. 383, & 1. A labor without a protest. The employers could trust in restraint of free labor is opposed employ no one who was not a member of the to sound public policy the same as a trust onion, and not even then unless he bore its of capital in restraint of free production, gass card. They could have no apprentices, and any agreement by which either object is

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