Angelos v. Mesevich , 289 N.Y. 498 ( 1943 )

After due trial of issues framed according to our practice, the Supreme Court, on the equity side, made findings of fact and conclusions of law upon which it granted a permanent injunction restraining and enjoining the defendants "from stationing pickets at or near the plaintiffs' place of business at 838 East 180th Street, Borough of the Bronx, City of New York, and from interfering with the plaintiffs' customers who may seek to enter their place of business, or to prevent by coercion or otherwise any customers of the plaintiffs seeking to enter plaintiffs' place of business, and from interfering in any other wise with the plaintiffs' business." Since the findings of fact were based upon sufficient evidence to support them, and the Appellate Division has affirmed the decree and made no new findings of fact, the findings of fact made by the trial court are not open for review by the Court of Appeals (Civ. Pr. Act, § 605), nor are we permitted to make new and additional findings of fact to form a basis to sustain the contention of the defendants. We must take the findings as made and determine the questions of law raised thereby.

The action was brought to restrain defendants from picketing plaintiffs' premises and business and from illegally interfering with and injuring that business. There is nothing within the allegations of the complaint which brings the action within the provisions of section 876-a of the Civil Practice Act of this State. For that reason, among others, defendants contend that the judgment below must be set aside. The primary and principal issue litigated at the trial as raised by the answer was whether a "labor dispute" existed between the parties within the meaning, purpose and intendment of that act as construed by our State courts. To support defendants' contention, they argue that a labor dispute existed between the plaintiff Loizides, who is claimed to have been operating a cafeteria at the location above specified with various non-union employees prior to April 22, 1939, and the defendants, and that such dispute held over and continued between the plaintiffs in this action and the defendants subsequent to that date. There are no findings of fact to support any such contention. The facts as found show that the defendants established a picket line at and near the cafeteria on or about April 15, 1939. On April 22, 1939, the plaintiffs in this action formed a partnership in accordance with the provisions of our partnership statute (Partnership Law, Cons. Laws, ch. 39) and filed a certificate as required by law that it was conducting business at the place indicated as "The World Cafeteria." Subsequently this action was commenced. Defendants sought to show that the partnership was a fraud and sham and not a bona fide partnership, that only one individual owned and operated the business, and that the other plaintiffs were merely employees. Upon conflicting evidence it has been found as matters of fact, conclusively binding on this court, that the plaintiffs were partners and, as such, sole owners and operators of the cafeteria, that the partnership was a valid partnership, and that plaintiffs as members of the partnership did all the work in connection with said cafeteria without any outside assistance. The trial court refused to find as requested by defendants, that the partnership was a fictitious arrangement among the plaintiffs entered into solely for the purpose of avoiding the unionization of the World Cafeteria and of applying to the court for an injunction restraining the defendant union from picketing the cafeteria, and that refusal to find has necessarily been approved by the lower court upon appeal. It has been specifically found that there was no "labor dispute" between the plaintiffs and any employees, or between the plaintiffs and the defendants, within the purview of section 876-a of the Civil Practice Act, that no employee of the plaintiffs ceased working because of any dispute as to the rate of wages or any other acts of the plaintiffs, and that no strike has ever been called at the plaintiffs' place of business. The mere fact that no strike has been called does not make the picketing unlawful. (ExchangeBakery Restaurant, Inc., v. Rifkin, 245 N.Y. 260, 263.) Nevertheless, there can be no labor dispute within the meaning of section 876-a unless there is employment. (Baillis v. Fuchs,283 N.Y. 133, 137.) Upon the facts as found in this case, the partnership comes within the reasoning of and is controlled by the decision in Thompson v. Boekhout (273 N.Y. 390). The partnership was not a legal entity in the sense that its members were employees as in the case of a corporation. (BoroughPark Sanitary Live Poultry Market, Inc., v. Heller, 280 N.Y. 481.) The findings in this case give us no information as to whether the objective of the defendants was proscribed as inOpera on Tour, Inc., v. Weber (285 N.Y. 348) or lawful as inWohl v. Bakery Pastry Drivers Helpers Local 802 (284 N.Y. 788, revd. 315 U.S. 769). Had the court found, as requested by the defendants, that the partnership was formed to avoid the establishment of a picket line with men walking up and down in front of the place, it would not have changed the result. (Cf.Jenkins v. Moyse, 254 N.Y. 319.) Accordingly, the action rests upon the principles of the common law without preliminary compliance with the provisions of section 876-a of the Civil Practice Act required.

It has been found by the lower courts that the picketing of the World Cafeteria was at all times orderly and peaceful and that no acts of violence had been threatened or committed by the defendant union. The defendants had the constitutional right accurately and truthfully and without violence, force or coercion, or conduct otherwise unlawful or oppressive to make their grievances known to the public. (Wohl v. Bakery PastryDrivers Helpers Local 802, supra.) But a citizen is not required to tolerate peaceful picketing accompanied by untruthful representations, interference with his business or coercive conduct designed to injure or destroy his business whether a labor dispute exists or not. (Busch Jewelry Co. v. UnitedRetail Employees' Union, 281 N.Y. 150; Wohl v. Bakery Pastry Drivers Helpers Local 802, supra.) Unlike the record in the Wohl case, there are findings of fact here to sustain the decree. In this case it has been found that individuals under the control of the defendants have been picketing the plaintiffs' cafeteria, bareing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor and that the pickets were previously employed by the plaintiffs, which representations were false and known by the defendants to be false, since there were no employees at the place of business of the plaintiffs and the plaintiffs were not unfair to organized labor; that such pickets approached prospective customers of the plaintiffs and told them that the plaintiffs' restaurant was giving bad food, and that by patronizing said restaurant they were aiding the cause of Fascism; and that the pickets directed customers about to enter the plaintiffs' place of business to a cafeteria across the street which was a competitor of the plaintiffs. By no authoritative decision has it been held that such conduct is not subject to judicial restraint. On the contrary, unlawful and coercive conduct will be enjoined where it has been found that such conduct has caused damage and will cause irreparable damage if permitted to continue and the party who is so damaged or threatened to be damaged has no adequate remedy at law. (Busch Jewelry Co. v. United RetailEmployees' Union, supra, p. 156.)

No exceptions appear in the record which raise any other question of law open for our further consideration.

The judgment should be affirmed, with costs.