will lie against a person who maliciously induces another to refuse to employ the plaintiff in his business, for the purpose of preventing the plaintiff from earning a livelihood thereby, if it appears that the plaintiff has suffered injury from such action. In that regard, I think that the case of Flood v. Jackson [1895] 2 Q. B. 21, correctly states the law of this country. I am aware that that case has been reversed by the house of lords; but that reversal was made by a divided court, against the opinion of a large majority of the judges of England, and, in my judgment, it cannot be sustained either upon principle or authority. But I think an examination of the record in this case discloses that there was sufficient evidence to warrant the learned justice in the court below in finding the facts which he did find, and which brought the case within the rule laid down in Flood v. Jackson. I do not purpose to recapitulate those facts. They establish clearly, as it seems to me, that Simpson was practically coerced into discharging the plaintiff from his employment, and that the object with which that coercion was applied was to prevent the employment of the plaintiff because he had been rejected in his application for membership in the union. As the result of that coercion, practiced not only upon Simpson, but upon others, it appeared that the plaintiff was practically prevented from obtaining any work at his trade for a long period of time. These facts, as it seems to me, warranted the justice below in awarding an injunction, and so much of the judgment should be affirmed.

The

The

INGRAHAM, J. I concur with Mr. Justice PATTERSON in the reversal of this judgment. The defendant the United Portable Hoisting Engineers is a corporation organized under the law of this state, and is composed exclusively of persons whose trade is that of "hod-hoisting engineers," engaged in managing and running engines employed in hoisting hods of mortar and other materials used in the erection of buildings in the various stages of their progress; and the defendant Gibbons is a representative of this corporation, attending to its business, and looking after its interest. objects for which this corporation was formed do not appear. allegation of the complaint upon that subject was expressly denied by the answer, and no evidence was introduced upon the subject upon the trial. There was evidence upon the trial, however, tending to show that the defendant Gibbons, as representing this corporation, stated to a Mr. Simpson that he had heard that he "had Mr. Davis working again; that I would have to let him go." Gibbons said that Simpson would get into trouble by keeping him. And, in consequence of these statements, it was alleged that Simpson discharged the plaintiff from the employment on a member of the defendant corporation presenting himself to take Davis' place. Simpson testified, in answer to a question of the plaintiff as to what he understood by Gibbons' statement that there would be trouble about the continued employment of Davis: "It is understood among us people that we employ only union engineers. I understood that Gibbons would stop my other engineers in case I didn't stop Mr. Davis." Simpson testified that he was in the habit of sending for Davis, and

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employing him on jobs until he (Simpson) could get a union engineer to take his place; that he (Simpson) would send for a union engineer, and, when one was not available, he would send for Davis. until he could get a union engineer, and, when a union engineer presented himself, Davis would be discharged, and the union engineer employed. There was not a particle of evidence to show that the defendant corporation, or Gibbons, as their representative, intended, or in fact did, any injury to the plaintiff, except so far as the employment of members of this corporation precluded others from doing the work that the members of the defendant corporation did. The court of appeals, in the case of Curran v. Galen, 152 N. Y. 36, 46 N. E. 298, held:

"In the general consideration of the subject, it must be premised that the organization or the co-operation of workingmen is not against any public policy. Indeed, it must be regarded as having the sanction of law, when it is for such legitimate purposes as that of obtaining an advance in the rate of wages or compensation, or of maintaining such rate. It is proper and praiseworthy, and, perhaps, falls within that general view of human society which perceives an underlying law that men should unite to achieve that which each by himself caunot achieve, or can achieve less readily."

It

Thus, the organization of an association or corporation for the purpose of obtaining employment for its members, and the acts of the corporation or its agents in accomplishing that result, as long as such acts are confined to legal methods of solicitation, or the promise of the support of the organization or corporation and its members to those who employ them, are certainly not illegal. It must also be held to be a fundamental principle of our law that employers of labor have the absolute right to employ whom they please, and to refuse to employ those whose services are not agreeable or advantageous; and so it is the right of each employé to work for whom he pleases, and to refuse to work for any one where either the employer or the employment is distasteful to him. is not illegal either for an employer to refuse to employ individuals who belong to a particular society, or members of a particular corporation, or for members of a particular association or organization to refuse to work with others who are not fellow members of the organization or corporation. It is not, therefore, illegal for an employer to insist upon employing members of one organization only, nor for the employés of one employer to refuse to work for him unless all his employés are members of one organization or corpora tion. So long as an employer of labor violated no contract in discharging a person employed by him, or in declining to employ a particular individual with whom he was under no contract obligation, he was doing nothing wrongful or illegal; and for another merely to induce him to take this course would constitute no illegal wrong, especially when the inducement was for the purpose of procuring employment for others.

This subject has received a most thorough discussion in England in the case of Allen v. Flood, decided by the house of lords, reported in [1898] App. Cas. 1. It seems to me that the opinion of Lord Herschell conclusively establishes that such an act on the part of a person or persons seeking employment, or their representatives,

violates no legal rule, and cannot be a foundation of an action for damages. In the course of that opinion, it is said:

"I understood it to be admitted at the bar, and it was indeed stated by one of the learned judges in the court of appeal, that it would have been perfectly lawful for all the iron workers to leave their employment, and not to accept a subsequent engagement to work in the company of the plaintiffs. At all events,' I cannot doubt that this would have been so. I cannot doubt either that the appellant or the authorities of the union would equally have acted within his or their rights if he or they had 'called the men out.' They were members of the union. It was for them to determine whether they would become so or not, and whether they would follow or not follow the instructions of its authorities. though no doubt, if they had refused to obey any instructions which, under the rules of the union, it was competent for the authorities to give, they might have lost the benefits they derived from membership. *** The members of these unions, of whichever class they are composed, act in the interest of their class. If they resort to unlawful acts, they may be indicted or sued. If they do not resort to unlawful acts, they are entitled to further their interests in the manner which seems to them best, and most likely to be effectual. If, then, the men had ceased to work for the company either of their own motion or because they were 'called out,' and the company, in order to secure their return, had thought it expedient no longer to employ the plaintiff's, they could certainly have maintained no action. Yet the damage to them would have been just the same. The employers would have been subjected to precisely the same 'coercion' and 'intimidation,' save that it was by act, and not by prospect of the act. They would have yielded in precisely the same way to the pressure put upon them, and been actuated by the same motive, and the aim of those who exercised the pressure would have been precisely the same. The only difference would have been the additional result that the company also might have suffered loss. I am quite unable to conceive how the plaintiff's can have a cause for action, because, instead of the iron workers leaving either of their own motion or because they were called out, there was an intimation beforehand that either the one or the other of these courses would be pursued. The iron workers were employed on the terms that they might leave at the close of any day, and that, on the other hand, the employers might, if they saw fit, then discharge them. The company had employed the men knowing that they were members of the union, and they had on one ccasion, at least, dealt with the appellant as its delegate. They had no ground fer complaint if the men left, as they were by contract entitled to do, whether the men left of their own motion or followed the instruction of their union leaders. It is said that the company were in the power of the men, because of the business loss to which the withdrawal of the men would subject them. But to what was this due if not to the act of the company themselves in employing these men under a contract which either party might any day determine? Under such circumstances. to compare the act of the company to that of the traveler who, on a pistol being presented to his head, hands his purse to the highwayman, appears to me grotesque. The object which the appellant and the iron workers had in view was that they should be freed from the presence of men with whom they disliked working, or to prevent what they deemed an unfair interference with their rights by men who did not belong to their craft doing the work to which they had been trained. Whether we approve or disapprove of such attempted trade restrictions, it was entirely within the right of the iron workers to take any steps, not unlawful, to prevent any of the work which they regarded as legitimately theirs being intrusted to other hands."

Applying this principle, with which I entirely agree, to the case at bar, no act of the defendant was proved that was either intended to or which did accomplish an injury to others, except so far as the plaintiff was injured because of the determination of his employer to substitute another workman to do the work which he was doing; and that was an injury which necessarily resulted from the success of one competitor in obtaining a contract or employment that others wished to obtain. Simpson had conducted his business

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by employing members of this union only. He always endeavored to obtain union men, and only employed nonunion men when such men were not available; and the efforts of the defendants to induce Simpson to employ a member of this union in place of Davis was not unlawful. Nor did the fact that Simpson was induced by the defendants to substitute a member of the defendant corporation in the plaintiff's place cause an injury to him which could be the foundation of any action against either the employer or those who had induced the employer to substitute one of their own members for the plaintiff.

(28 App. Div. 451.)

ELDERT v. LONG ISLAND ELECTRIC RY. CO.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) 1. NUISANCE-OBSTRUCTION OF SIDEWALK.

A wall of masonry and an iron structure erected along the middle of a highway by a surface railroad company, to connect its tracks with those of an elevated railroad company, without any competent legal authority for such erection, constitutes a nuisance.

2. RAILROADS-JUNCTION-SURFACE AND ELEVATED ROAD.

Subdivision 5 of section 4 of the "Railroad Law" (2 Rev. St. [9th Ed.] p. 1252, c. 39), empowering railroad corporations to "join or unite" their railroad with any other railroad, does not authorize a connection between a street-surface railway and an elevated railroad by an inclined plane, where the property owners have consented only to a surface road. 3. NUISANCE-INJUNCTION.

In an action by a property owner to enjoin a surface railroad company from maintaining upon a public highway a wall and iron structure constituting a nuisance, it appeared that, while the structure was not in front of plaintiff's premises, it began at or about opposite the side boundary line thereof, and that the highway led to the county town. Held, that the facts warranted a finding of special injury to plaintiff, and that he was entitled to maintain the action.

Appeal from special term, Queens county.

Action by Luke Eldert against the Long Island Electric Railway Company. From a judgment enjoining defendant from maintaining on a public highway a wall of masonry and an iron structure, erected to connect defendant's railway track with the Kings County Elevated Railroad at the county line between Queens and Kings, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Meyer Auerbach, for appellant.

F. H. Van Vechten, for respondent.

GOODRICH, P. J. The plaintiff and two other persons, not parties plaintiff, are the owners, as tenants in common, of property on both sides of Liberty avenue, and the owners in fee of the adjacent roadbed of the highway upon which the structure in question is erected. The record contains an agreed statement of facts, in which, and also in the court's finding of facts, it is stated that the plaintiff's land lies on both sides of Liberty avenue, beginning at a point about 1,000 feet easterly from the line dividing the counties, and extending easterly about 750

feet, and that the plaintiff and two other persons, "as tenants in common, are the owners of the fee of the roadbed of said public highway known as Liberty avenue, in front of said premises, subject to the public easement of the right of passage and repassage over the same." The defendant is a corporation, organized under the general railroad laws of the state, applicable to street-surface railway companies, for the purpose of constructing and operating a street-surface railroad along certain public highways in Queens county, including Liberty avenue, and extending thence easterly to Broadway, in the town of Jamaica. It is further found that upon a portion of Liberty avenue, and about the center of the roadbed, the defendant has erected a solid embankment or wall of masonry, about 8 feet in width, from a point 1,000 feet easterly from the dividing line of the counties; that the embankment starts at the level of the grade of Liberty avenue, and thence extends about 200 feet westerly, by a gradual slope, to a maximum height of about 10 feet above the grade of the avenue; that, from the westerly end of the wall, the defendant has erected iron girders, in the middle of the avenue, about 25 feet apart, and about 10 to 35 feet in height, on which girders rests a structure of iron in the form of a railroad track trestle, with a gradual slope upward to and connecting with the railroad tracks and structure of the Kings County Elevated Railroad, at the dividing line between the counties; that the defendant erected this structure with the permission and consent of the highway commissioners of the town, and for the purpose of connecting its track with that of said elevated road; and that Liberty avenue is 60 feet wide, and there is a space of 25 feet on each side of the structure. The court found, as matter of law, that the defendant had no authority to erect the structure; that the authority or consent of the highway commissioners was not comprehended within their powers, and conferred upon the defendant no right to erect the structure; that it is a nuisance and unlawful burden on the property rights of the plaintiff, and has worked him an injury, as owner of the fee of the road and the land on both sides of Liberty avenue, "abutting upon that portion of the avenue upon which the defendant has erected the wall of masonry and structure aforesaid." The judgment enjoined the defendant from erecting, constructing, or maintaining said structure upon Liberty avenue in front of the property on said avenue, now owned by the plaintiff and the other parties as tenants in common, and directed it, within 30 days, to remove the same "from the roadbed of said Liberty avenue in front of the premises aforesaid." From this judgment, the defendant appeals.

There is no evidence that any part of the structure is erected opposite the plaintiff's property. I assume that the roadbed of Liberty avenue, referred to in the agreed statement, findings, and judgment as belonging to the plaintiff, is only that part of the avenue upon which the plaintiff's property abuts. Such property is described as commencing at a point about 1,000 feet easterly of the dividing line of the counties, and running thence easterly 750 feet; while the structure in question is described as commencing at a point 1,000 feet from the dividing line of the counties, and running thence westerly.-that is, towards the County line. In other words, there is a point 1,000 feet from the