Opera on Tour, Inc. v. Weber , 17 N.Y.S.2d 144 ( 1940 )

Glennon, J. (dissenting).

I dissent from the conclusion reached by the majority that the judgment entered at Special Term should be reversed and the complaint dismissed.

Plaintiff was engaged in the business of giving grand opera performances at reasonable prices in those sections of the country which could not afford to pay the same scale as could be obtained in a few of the larger cities. In order to accomplish its purpose, plaintiff used recorded music, which is commonly referred to as “ canned ” music, for its orchestral and choral accompaniment, thus avoiding the hiring of musicians in connection with the rendition of the opera.

It assembled a cast of over fifty singers and artists and expended a sum in excess of $70,000 to carry out its work. It entered into contracts to give performances in small cities and towns in some of the southeastern States. Six stagehands were employed under contracts which were entered into with the Marks Production Company, apparently an agency of plaintiff. Incidentally, it may be remarked that these contracts contained a provision that they could be canceled only upon two weeks’ written notice to the employer.

In addition to the six regularly employed stagehands, plaintiff in each city or town made it a practice to hire twenty-three others who were members of the local unions.

It has been found by Special Term, and it is a fact, that the stagehands’ union has not, and at no time ever had, any grievance with the plaintiff. The sole objection, both while the company was in rehearsal and during the time it was giving performances, was voiced by the musicians’ union as to the use of the mechanical transcriptions in connection with the performances.

A short resumé of the testimony of Joseph W. Collins, who was the shop steward of the stagehands connected with the plaintiff, will shed considerable light upon the question here involved. Collins said that he was in receipt of a salary of $100 per week in addition to all traveling expenses. The opening performance was in Richmond, Ya. Then followed Blacksburg and Roanoke, two other cities in the same State.

The company traveled to Knoxville, Tenn., and then to Nashville. At that time there were no musicians working for or employed by the plaintiff, Opera on Tour, Inc. Upon his arrival in Nashville, he met a man named Kelby, a business agent of the stagehands’ union, who gave him instructions “ to give aid to local musicians.” Collins and Kelby both spoke to a Mr. Brennan, who was the vice-president of their union. Collins was instructed by Brennan “ to give a show at Nashville, pack up in the car and take it back to New York.” Later in the day further instructions were received from Brennan to accompany the opera troupe to Birmingham, Ala., but not to render any service in connection with the performance until further orders.

Collins gave the following testimony in detail: “ Q. And you and the five other stage hands refused to work for the company under the orders of the I. A. T. S. E. to discontinue working, is that it? A. We had no choice in the matter. Q. You had no choice in the matter after the union issued the order, is that right, Mr. Collins? A. Orders are orders. Q. Now, were you satisfied with the salary, with the money, that the company was paying you? A. Perfectly. Q. And were you satisfied with the hours? A. The hours were perfect. Q. And were you satisfied with all the conditions under which you were working? A. The conditions were excellent. Q. Did you have any complaints or any grievance against this company at all? A. Absolutely not. Q. You wanted to work, did you not? A. I did. Q. You desired to continue to work? A. I did. Q. And you wanted to earn this $100 a week that this company was paying you? A. I did. Q. What about the local stage hands, were they called out, too? A. Why, they couldn’t work. When we couldn’t work, they couldn’t work. Q. They couldn’t work after the order came from New York, from the New York office, to stop working for the plaintiff company, is that right? A. That’s right.”

In addition thereto he gave testimony to the effect that all expenses and salaries were paid by the plaintiff at Birmingham before he and bis fellow workers left for New York. Collins’ fellow employees testified substantially as he did.

There was no strike in the sense in which the word ordinarily is used. The men were compelled to break their agreements simply because the union of which they were members would not permit them to continue in their work. The result was that the plaintiff could not carry out its contracts for future performances in other cities. The company returned to New York and plaintiff was compelled to discharge the singers, dancers and other performers.

It is not disputed that without the services of the stagehands the company could not survive. No trouble would have been encountered were it not for the unreasonable demand of the musicians’ union, with which the plaintiff had no contractual relations.

The basic question, therefore, is, has plaintiff the right to carry on its business in the way it sees fit by the use of mechanical reproductions instead of employing members of the musicians’ union? The proposition presented transcends in importance any question which has been before the courts in recent years. If the contentions of the defendants are to be upheld, we might just as well scrap nearly all mechanical inventions. If this plaintiff can be prevented from giving its performances with the aid of recorded music, it follows naturally that the same procedure could be resorted to in order to prevent restaurants and hotels from using music which comes over the wire for the entertainment of the public. Not only could it be applied to all musical instrumentalities but also to a great many phases of our everyday life. The owner of a business wherein members of various trade unions were employed could be prevented from driving his car if the chauffeurs’ union decided to pursue the same methods as the musicians’ union did in this case. As Collins, the witness, said, “ You can’t stop progress,” and on being asked what he meant by that he replied, “ Why, mechanical devices, such as sound records, sound tracks. Sitting up all night long trying to think out and dig up ways of improving and giving the public something.” Applying this thought, as expressed by this witness, to the question now before us, progress has made it possible for the general public to enjoy opera at a reasonable price which could not be had if it is to be burdened by an unwarranted expense.

I do not believe that the principle adopted in the Massachusetts cases is too narrow. It seems to me that it is in accord with sound logic and reason. In addition to the case of Haverhill Strand Theatre, Inc., v. Gillen (229 Mass. 413; 118 N. E. 671), which is discussed by the majority, attention also should be directed to a later expression of opinion by the same court which is to be found in Yankee Network, Inc., v. Gibbs (295 Mass.-; 3 N. E. [2d] 228).

There plaintiff engaged a man named Kendis for one year as “ contractor, conductor, arranger and pianist ” at a weekly stipend. Kendis, who was a member of the American Federation of Musicians in New York city and elsewhere, but not of “ Local No. 9,” which was located in that Commonwealth, was found guilty of a violation of the by-laws and regulations of “ Local No. 9 ” and fined $500 about a week after he had entered into his employment. Ten members of the local who had been engaged as musicians refused to continue their orchestral work on the day the fine was imposed upon him. Although the court found that Kendis did in fact violate the by-laws of the union, nevertheless, it upheld plaintiff’s contention that the union had no right to interfere with the contract made by Yankee Network, Inc., with Kendis. Mr. Justice Qua, in writing for the court, said:

“ It is true that there was no direct evidence of ‘ threats ’ by the officers of the local to the ten musicians, but there was evidence which could have been thought to show advice from the officers which caused the musicians to abandon their employment through fear of action by the officers and the local and against their own desire. The precise word used to describe this is unimportant.

“ The findings and the evidence together show that the defendants, having no trade dispute of any kind with the plaintiff, combined to prevent the carrying out of the contract between the plaintiff and Kendis and to prevent Kendis from working for the plaintiff and that they succeeded in that purpose. Such a combination for such a purpose was prima facie unlawful both as an interference with the contractual right of the plaintiff and as an interference with the right of the plaintiff to manage its own business in its own way and to have free access to the market for musical talent. [Citing cases.]”

There is no need here of directing attention to the case of Hopkins v. Oxley Stave Co. (83 Fed. 912) since it is referred to in the majority opinion. Nor is it necessary to mention the opinion of the trial justice, as it appears reported in 170 Miscellaneous Reports, 272, and adequately covers my views.

I would add, however, that I do not believe that there was any labor dispute within the meaning of section 876-a of the Civil Practice Act. (Thompson v. Boekhout, 273 N. Y. 390.)

The judgment should be affirmed.

Judgment reversed, with costs, and judgment directed in favor of the defendants dismissing the complaint, with costs. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby established.