Manhattan Steam Bakery, Inc. v. Schindler , 294 N.Y.S. 783 ( 1937 )

Hagarty, J. (dissenting in part).

This case was presented upon a stipulation of admitted facts. The facts as thus stipulated, and the inferences properly to be drawn therefrom, establish the following: The appellant’s representatives followed plaintiff’s vehicles to the places of business of its customers. They informed such customers that they would be picketed, but that if they discontinued the purchase and sale of plaintiff’s products and purchased union-delivered products instead, they Would not be picketed. In the event that the customer did not acquiesce, he was subjected to picketing consisting of one or two persons walking in front of his place of business, bearing a sign reading in part, “ This Store Receives Rolls and Bread Delivered by Non-Union Drivers.” In my opinion, these acts of the appellant constituted an unlawful secondary boycott per se which was not rendered lawful because of the legality of appellant’s objectives or abstention from fraud, violence or breach of the peace. In Kronowitz v. Schlansky (249 App. Div. 636) we held lawful the use of a sign which appealed to workers and sympathizers to demand products with the union label, but even then by the use of one picket only and not directly in front of the premises of a customer. That sign in no way referred to a customer. Even so, when picketing with such a sign in front of a customer’s place of business was used as a means of coercion, its use was enjoined. (Stuhmer & Co. v. Korman, 241 App. Div. 702; affd.., 265 N. Y. 481.) The sign here in question is not an advertisement of the union label; it is a direct appeal to the public to refrain from patronizing a specific customer. It is a boycott. (Auburn Draying Co. v. Wardell, 227 N. Y. 1.) We are not referred to any appellate authority in this State which expressly or impliedly holds legal the picketing of a customer of the employer with a sign such as the one here involved. If legal, there is no logical reason for denying extension of similar practices to and upon the ultimate consumer. But the First Department in Spanier Window Cleaning Co., Inc., v. Awerkin (225 App. Div. 735) modified a temporary injunction so as to permit picketing, but expressly provided that no placard or sign used should contain the names of any of plaintiff’s customers or refer to them directly or indirectly.

I am further of opinion that finding of fact 52 should be modified by strildng out the words “ all of the said acts herein enumerated and ” and inserting in place thereof the specific acts enumerated; that findings of fact 54, 55, 56, 57 and 58, and conclusion of law 14 should be reversed and a new conclusion made as follows: “ 14. That the objections made by plaintiff and the motions to strike out exhibits, set forth in the notice of objections dated June 23,1936, served by plaintiff, are hereby denied,” The findings of fact which I believe should be reversed are not, in my opinion, supported by the aforesaid stipulation of facts. The portions of the stipulation which I believe should be reinstated relate generally to the aims and purposes of the appellant and its attempt to have plaintiff conform to the standards established elsewhere, and show the existence of a labor dispute. Although the appellant contends that the judgment is too general in its language, it does not seek modification by elimination of any specific portions thereof or additions thereto. I am further of opinion that the constitutionality of section 876-a of the Civil Practice Act need not be determined here, as the injunction is consonant with its provisions. The question of the duration of the judgment is not in issue on this appeal and the decision establishes the jurisdictional requirements of section 876-a of the Civil Practice Act.

The judgment should be affirmed, with costs, and the appeal from the order denying the motion to dismiss the complaint dismissed.

Davis, J., concurs.

Judgment reversed on the law, with costs, and complaint dismissed, with costs; appeal from order denying motion to dismiss the complaint for insufficiency dismissed, without costs. Findings of fact and conclusions of law inconsistent herewith are reversed.

Settle order on notice.