what the facts were upon this testimony, and then arriving at a legal conclusion based upon the facts found, simply made findings setting forth the testimony of Rose E. Dougherty and Irving McCausland, pro and con, and upon the evidence thus stated he concluded "that neither the defendant, nor John McCausland, the defendant's agent, nor the said Irving McCausland, knew or understood, at the time of the writing and issuing of said policy of insurance, that the said Catharine Dougherty was dead." Upon the record thus set forth there was predicated the conclusion that there was no mistake, mutual or common to both of the parties to the contract, and that the evidence failed to justify the reformation thereof. The judgment entered upon that decision (84 N. Y. Supp. 10) was affirmed by a divided court at the Appellate Division (88 N. Y. Supp. 1096); and from that affirmance the parties in interest who are opposed to the defendant insurance company have taken a final appeal to this court. The most obvious feature of the record before us is that, if the statement of the plaintiff Rose E. Dougherty as to the death of her mother is to be taken as true, there was evidence upon which the trial court could have based the conclusion that the instrument should be reformed on the ground of mutual mistake. So, on the other hand, if the finding were that the fact of Catharine's death had not been communicated to McCausland, it would follow as a necessary conclusion that there was no ground for reformation. Had the fact been found to be as stated by Rose E. Dougherty, there would have been ample support for the conclusion that there was a mutual mistake in respect of the beneficiary to be named in the policy, or a mistake on the part of Rose E. Dougherty and an attempted fraud on the part of McCausland, and in either event a reformation of the contract might properly have been decreed. The question of fact upon which everything hinges In this case is whether the plaintiff Rose E. Dougherty, before the delivery of the policy in suit, told Irving McCausland that her mother was dead. Upon that crucial question there is no finding one way or the other. If the trial court had found that no such statement was made, then there would be justification for the further finding "that neither the defendant, nor John McCausland, the defendant's agent, nor the said Irving McCausland, knew or understood, at the time of the writing and issuing of the said policy of insurance, that the said Catharine Dougherty was dead." But if the finding were that the fact of Catharine Dougherty's death was communicated to Irving McCausland, who represented the insurance company in the negotiations for the policy, it would be rather difficult, if not quite impossible, to draw the inference that the defendant company and its agents were ignorant of the fact. Instead of finding either way upon this question of fact, the trial court simply found the evidence as given by the witnesses and then drew the conclusion, which, upon the record as it stands, is unsupported by any finding of fact. It is no part of our present duty to decide whether the policy in suit shall ultimately be reformed or not. What we say here is for the purpose of illustrating the obvious inconsistency of basing a legal conclusion upon a mere statement of evidence that is conflicting or from which opposing inferences may be drawn, and not to indicate our views upon the merits. It will be time enough to pass upon the legal proposition involved when the court of first instance shall have furnished us with a finding of fact upon which a legal conclusion may properly be predicated. While the question of practice involved may not be of great importance in this simple case, it is chiefly significant because it is one of several similar instances that have recently been brought before us in which we have felt constrained to hold that such procedure is practically a mistrial. Miller v. N. Y. & N. S. Ry. Co., 183 N. Y. 123, 75 N. E. 1111; Cuyler v. Wallace, 183 N. Y. 291, 76 N. E. 1. There were other issues raised by the pleadings; but, as the trial court did not decide them, they present nothing for review upon this appeal. For these reasons, and without passing upon the merits of the controversy, the judgment herein should be reversed, and a new trial granted, with costs to abide the event. CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and VANN, JJ., con cur. Judgment reversed, etc. (183 N. Y. 207) JACOBS v. COHEN et al. (Court of Appeals of New York. Nov. 28, 1905.) CONTRACTS-EMPLOYMENT OF UNION LABOR VALIDITY. A contract between an employer and a labor union, whereby the employer agreed to employ for a certain period only members of a union in good standing, and under which contract the union bound itself to furnish the services of its members, is not void as in violation of public policy, so that a note given by the employers to secure the contract and to be applied as liquidated damages on violation thereof is valid. [Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 547, 568.] Vann and Bartlett, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second Department. Action by Henry Jacobs, as president of the Protective Coat Tailors' and Pressers' Union, Local 55, of the United Garment Workers of America, against Morris Cohen and others. From an order of the Appellate Division (90 N. Y. Supp. 854, 99 App. Div. 481), reversing an interlocutory judgment entered on an order of a Special Term sustaining the demurrer to the answer, plaintiff appeals. Reversed. E. H. M. Roehr, for appellant. William Liebermann, for respondents. GRAY. J. The plaintiff sues the makers and the indorser of a promissory note, payable to the order of the Protective Coat Tailors' Union, of which he is the president, to recover the amount due thereon. The answer of the defendants denied the allegations of the complaint, except as to the making of the note, and set up as a distinct and separate defense that it was given "as collateral security to the plaintiff, to be applied as liquidated damages for violation by the defendants of any of the covenants and conditions of a certain contract." The particular part of the contract set forth is as follows: "That the party of the first part [meaning the makers' firm] shall not employ any help whatsoever other than those belonging to and who are members of the party of the third part [meaning a 'union' of the firm's employés] and in good standing, and who conform to the rules and regulations of the said party of the third part, and the said party of the first part shall cease to employ any one and all those employés who are not in good standing, and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentialed representatives. That the party of the first part shall not engage any help whatsoever, even those who are members of the party of the third part, without their first having produced a pass card duly executed and signed by the authorized business agent of the party of the third part; said card to show that the bearer thereof is a member in good standing of the party of the third part, and that he has complied with the rules and regulations thereof in force at that time." The answer then alleged "that the said contract is in restraint of trade, and the said contract has for its purpose the combination of employers and employés, whereby the freedom of the citizen, in pursuing his lawful trade and calling, is through such contract, combination, and arrangement hampered and restricted, and has also for its purpose the coercing of workingmen to become members of the said employés' organization and come under its rules and its conditions, under the penalty of the loss of their positions and of deprivation of employment, and that such purposes are in restraint of trade, that they hamper and restrict the freedom of a citizen in pursuing his lawful trade and calling, and that they are against public policy and unlawful." To this defense the plaintiff demurred for being insufficient in law. The demurrer was sustained at the Special Term, but upon appeal to the Appellate Division in the Second Department the judgment sustaining the demurrer was reversed and the demurrer was overruled. Permission was given to the defendants to appeal to this court, and the following questions were certified for our review, namely: "(1) Is a contract made by an employer of labor, by which he binds himself to employ and to retain in his employ only members in good standing of a single labor union, consonant with public policy, and enforceable in the courts of jus tice in this state? (2) Is the 'second' separate defense, contained in the answer herein of the defendants, Morris Cohen and Louis Cohen, insufficient upon the face thereof to constitute a defense?" If we refer to the prevailing opinion of the Appellate Division, it appears that the question in this case was there regarded as within our decision in Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, and hence that the contract was unlawful, because contrary to public policy. In this view, I think the learned justices below erred. The contract is annexed to and made part of the answer, and is tripartite, between the defendants, Morris and Louis Cohen, a firm engaged in the tailoring business, their employés, represented by an attorney in fact, and a voluntary association, formed by the latter and called the Protective Coat Tailors' and Pressers' Union, of which the plaintiff is president. It provided for the employment by the Cohens of their employés in their various skilled capacities for the term of one year, for a system of work by the week, for the number of hours of work and for the mode of payment of the wages, and, generally, for the regulation of the relations between the employers and their employés, including this particular agreement not to employ others than members of their employés' union. Whatever else may be said of it, this is the case of an agreement voluntarily made by an employer with his workmen, which bound the latter to give their skilled services for a certain period of time, upon certain conditions, regulating the performance of the work to be done, and restricting the class of workmen who should be engaged upon it to such persons as were in affiliation with an association, organized by the employers' workmen with reference to the carrying on of the very work. It would seem as though an employer should be, unquestionably, free to enter into such a contract with his workmen for the conduct of the business, without its being deemed obnoxious upon any ground of public policy If it might operate to prevent some persons from being employed by the firm, or, possibly, from remaining in the firm's employment, that is but an incidental feature. Its restrictions were not of an oppressive nature, operating generally in the community to prevent such craftsmen from obtaining employment and from earning their livelihood. It was but a private agreement between an employer and his employés concerning the conduct of the business for a year, and securing to the latter an absolute right to limit the class of their fellow workmen to those persons who should be in affiliation with an organization entered into with the design of protecting their interests in carrying on the work, as, indeed, the agreement recites. Nor does the answer aver that it was intended thereby to injure other workmen, or that it was made with a malicious motive to coerce any to their injury, through their threatened deprivation of all opportunity of pursuing their lawful avocation. To coerce workmen to become members of the employés organization, through such a contract, is not the allegation of something which the law will necessarily regard as contravening public policy. The allegation that its "purposes are in restraint of trade," or that "they hamper and restrict the freedom of a citizen," or "that they are against public policy," is the mere statement of a legal conclusion. If the question were more correctly presented by some appropriate allegation. I still would be of the opinion that the agreement is not one which comes under the condemnation of the law. The right of workingmen to unite and to organize for the protection of their interests and welfare is not denied. It has been, expressly and recently, declared by this court. Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496; National Protective Association v. Cumming, 170 N. Y. 315, at pages 320, 334, 338, 63 N. E. at pages 369, 374, 376 (58 L. R. A. 135, 88 Am. St. Rep. 648). The inviolability of the right of persons to freedom of action may well extend to any concert of action for legitimate ends, if consistent with the maintenance of law and order in the community, and if not interfering with the enjoyment and the exercise by others of their constitutional rights. Their right to combine and to co-operate for the promotion of such ends as the increase of wages, the curtailment of hours of labor, the regulation of their relations with their employer, or for the redress of a grievance, is justifiable. Their combination is lawful, when it does not extend so far as to inflict injury upon others, or to oppress and crush them by excluding them from all employment, unless gained through joining the labor organization or trades union. This we have decided, and this the law of the state sanctions. Curran v. Galen, supra; National Protective Association v. Cumming, supra; Pen. Code, § 170. As it was observed in Curran v. Galen, an underlying law of human society moves men to unite for the better achievement of a common aim, and this social principle justifies organized action. Organization, or combination, is a law of human society. It is open to all orders of men, who desire to accomplish some lawful purpose through the greater strength and effectiveness which organization offers over individual effort. If surrender of individual liberty is involved in combination, that is, nevertheless, but an extension of the right of freedom of action. If, therefore, the organization of workingmen is not obnoxious to moral or to legal criticism, and only the use or directing of the power of the organization to injure others, by preventing them from following their trade, is visited by the law with its condemnation, how can it fairly be said that the refusal of a body of men to work with those not in affiliation with them, and an agreement with the employer by which such are excluded from the shop, is acting beyond legally justifiable limits? Whether the reason for the refusal be purely sentimental, or whether based upon more substantial grounds, such as, for instance, an assurance of the character and of the competent skill of their fellow workmen, is not material. The case of Curran v. Galen, supra, which stands unaffected as an authority, presented a very different state of facts. There the plaintiff demanded damages of the defendants, who were officers and members of an association of workingmen in the brewing business in the city of Rochester, for having conspired to injure him and to take away his means of earning a livelihood. In substance he alleged in his complaint that he was threatened by certain of the defendants, members of the association, that unless he became a member they would obtain his discharge from employment and would make it impossible for him to obtain any employment in that city or elsewhere; that, upon his refusing to become a member of the association, the defendants forced his employers to discharge him, and by false and malicious reports circulated in regard to him sought to bring him into ill repute with members of his trade and employers and to prevent him from prosecuting his trade and earning a livelihood. The answer to the complaint, among other defenses, set up an agreement between the Ale Brewers' Association in the city of Rochester and the particular association referred to in the complaint to the effect that all employés of the brewery companies should be members of the association and that no employé should work for a longer period than four weeks without becoming a member, and that, upon the plaintiff's refusal to comply with defendants' request to become a member of the association, his employers were notified thereof in accordance with the terms of the agreement with the Ale Brewers' Association. To this matter set up as a defense the plaintiff demurred, and the order sustaining the demurrer was affirmed in this court. I endeavored to point out in the opinion that the agreement could be no justification for the acts charged in the complaint, and that it could not legalize a plan for compelling other workingmen to join the defendants' organization, at the peril of being deprived of employment and of making a livelihood. However lawful and legitimate urge its illegality? That, incidentally, it might result in the discharge of some of those employed, for failure to come into affiliation with their fellow workmen's organization, or that it might prevent others from being engaged upon the work, is neither something of which the employers may complain, nor something with which public policy is concerned. I think that the questions certified should be answered in the affirmative, and therefore that the order of the Appellate Division, reversing the interlocutory judgment and overruling the demurrer, should be reversed, and that the interlocutory judgment, which sustained the demurrer, should be affirmed, with costs in all the courts to the appellants. the purposes of the organization of the work- | contract), does it lie in their mouths now to ingmen may have been, its power and influence were being unlawfully wielded in efforts to keep other persons from working at the particular trade and to procure their dismissal from employment. In the general discussion of the question I conceded the general right of workingmen to organize for the common good of the members, and sought to show how the agreement and acts there in question were contrary to public policy and unlawful, because oppressive and restricting the freedom of others to engage in the same line of occupation, or to make a livelihood at their trade, as a penalty for refusing to join the defendants' organization. That was a very different case from the present one. The subsequent case of National Protective Association v. Cumming, supra, in no wise overruled Curran v. Galen. It was not at all within the principle of the prior case. It concerned a dispute between rival labor organizations. The plaintiff organization sought to restrain the defendants from preventing the employment of its members and from procuring their discharge by any employer through threats and strikes, and the reversal of a judgment awarding the relief demanded was, affirmed by this court. The right of the defendants in that case to refuse to permit their members to work with others, who were members of a rival organization, and to bring about their discharge upon the common work in which they were engaged, if confined to threats to withdraw from the work, or to ordering a strike of their own members, without resort to injurious acts, was admitted. The defendants' effort was not to compel the others to join with their organization as a condition of being allowed to work, and, whether it was to secure only the employment of approved workmen (which was a possible inference from the facts), or whether it was to obtain an exclusive preference in employment, if without resort to force or the commission of any other unlawful acts, it was not within the condemnation of the law. Within even the view expressed by the minority of the judges of this court in the Cumming Case, the contract in the present case was not unlawful which the employer made with his workingmen. Judge Vann asserted the right of every man "to carry on his business in any lawful way that he sees fit. He may employ such men as he pleases, and is not obliged to employ those whom, for any reason, he does not wish to have work for him. He has the right to the utmost freedom of contract and choice in this regard." This contract was voluntarily entered into by the Cohens, and, if it provided for the performance of the firm's work by those only who were accredited members in good standing of an organization of a class of workingmen whom they employed, were they not free to do so? If they regarded it as beneficial for them to do so (and such is a recital of the VANN, J. (dissenting). The contract which the court is about to pronounce valid and in accord with public policy is in substance as follows: The defendants were the party of the first part; their own employés, "by Barnard Kaplan, their representative and attorney in fact," party of the second part; and the Protective Coat Tailors' and Pressers' Union, Local No. 55, of the United Garment Workers of America, a voluntary association organized by the parties of the second part, acting "through Barnard Kaplan, its secretary," party of the third part. It consists chiefly of restrictive stipulations against the employers, who agree to employ the persons already in their employment "as operators, basters, finishers, pressers, fitters, bushelers, and buttonhole makers, each in his own capacity and for no other work than that he was engaged for," during the period of one year. After fixing the number of working hours per week, it was agreed that "under no circumstances shall work be carried on by the parties of the first and second part at any other hours than herein specified without a written consent of the party of the third part, executed by its duly authorized officer. * * It was further agreed "that the party of the first part shall not employ any help whatsoever other than those belonging to and who are members of the party of the third part and in good standing and who conform to the rules and regulations of the said party of the third part; and the said party of the first part shall cease to employ any one and all those employés who are not in good standing and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentialed representatives. The party of the first part hereby agrees to abide by the rules and regulations of the party of the third part, as known in the trade, and to permit and allow representatives of said party of the third part to enter their shop or shops at any and all hours of the day and night for the purpose of inspection and enforcement of the terms of this contract, as well as all the rules and regulations herein referred to. The party of the first part shall not engage any help whatsoever, even those who are members of the party of the third part, without their first having produced a pass card duly executed and signed by the authorized business agent of the party of the third part, said card to show that the bearer thereof is a member in good standing of the party of the third part and that he has com. plied with the rules and regulations thereof in force at that time. The party of the first part shall not employ more than one helper to every two operators, or one helper to two basters, and under no consideration to employ any apprentices." The parties of the second part also agreed not to employ apprentices and to abide by the rules and regulations of the party of the third part. "In the event of any one of the parties of the second part not remaining and continuing during the entire period of this contract in good standing, or does not in all respects conform with the rules and regulations of the party of the third part, then the party of the first part shall cease to employ such employé whoever he may be. That the parties of the second part may quit work during a socalled 'sympathy strike,' provided no new demands are made by them. Such quitting of work on their part shall in no way affect the validity of this agreement or suspend its operation." A minimum scale of wages was agreed upon, and finally the party of the first part agreed to deposit "and hereby does deposit with the party of the third part a promissory note in the sum of two hundred dollars as security for the faithful performance by the party of the first part of all the covenants and conditions herein contained as liquidated and ascertained damages upon the commission of any breach or violation of any of the covenants herein above set forth on the part of the party of the first part. The only stipulation on the part of the union was that it would "furnish any and all help it may have on its application books," which it was to keep for the benefit of the other parties, without charge of any kind to any person. The business affected did not belong to the union. or its members, but to the defendants, who agreed, voluntarily, of course, to employ and discharge workmen at the dictation of the union. The labor department of the industry was under the control of the union, for both employer and employed, abrogating their own rights, placed themselves under its command in that respect. This was a form of slavery, even if voluntarily submitted to; for whoever controls the means by which a man lives controls the man himself. Both the proprietors and the workmen seem to have walked under the yoke of the union without a protest. The employers could employ no one who was not a member of the union, and not even then unless he bore its pass card. They could have no apprentices. Even in an emergency and with the consent of their workmen, they could not exceed the hours of labor prescribed by the union. A baster, however willing, could not sew on a button, and a presser, even if he wanted to, could not make a buttonhole. If a strong man, capable of working ten hours a day, wished to do so, and his employers were willing to pay him extra for the overtime, he could not without the written consent of the union. A qualified workman, not a member of the union, might be unwilling to join, yet he could not get work unless he did. If an employé wished to leave the union, he could not without losing his place. The employers could not hire nonunion men who wished to work for them, nor have extra helpers in their business, and even the workmen themselves could not take apprentices. Employers were bound to abide by the rules and regulations of the union, and permit its representatives to enter their shops at any and all hours of the day and night for the purpose of inspection and enforcing the terms of the contract as well as the rules and regulations. The employés could refuse to work during a "sympathy strike" and paralyze the business without affecting the validity of the agreement. They were bound to obey the rules and regulations of the union, whatever they might be, that were in force at any time during the year covered by the agreement. Thus master and men bound themselves by these remarkable stipulations made with a voluntary association, which had no pecuniary interest in the business or in the labor of those employed. The labor of the employés belonged to themselves, and they had a right to sell it to whom they chose and on such conditions as were mutually satisfactory. The business belonged to the defendants, and they had the right to employ any man who was willing to work for them; but by this agreement an outsider intervened, and compelled those who owned the business and those who did the work to submit to its direction. As was said by the court below, the will of the employer "was subjected by executory contract to an arbitrary domination, which not only deprived" him “of all freedom of action, but also crushed the rights and interests of all independent competition in the field of labor." The manifest purpose of the contract was to prevent competition and create a monopoly of labor. A combination of capital, or labor, or as in this case of both, to prevent the free pursuit of any lawful business, trade, or occupation, is forbidden both by statute and the common law. Matter of Davies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855; Laws 1897, p. 310, c. 383, § 1. A labor trust in restraint of free labor is opposed to sound public policy the same as a trust of capital in restraint of free production, and any agreement by which either object is |