
    Edward Wunch, Respondent, v. David Shankland, as President of Typographical Union No. 9, an Association Composed of Seven or More Members, Appellant.
    
      Labor organisation — its members are not liable to an employee of their common employer for refusing to continue work unless such employee .either joinf the organisation o>' is discharged.
    
    A labor organization, to which all the typesetters and other compositors employed ' in a newspaper office belong, may, upon the refusal of a machinist, employed to take care of the typesetting machines used in the office, to become a member of the organization, lawfully notify, the proprietors of the office that, unless the machinist complies with their requests or is discharged, the members of the organization working in the office will strike, and if the machinist persists in his refusal to join the organization and is discharged in order to avoid the threatened strike, the members of. the organization are not liable to him in damages.
    Appeal by the defendant, David Shankland, as president of Typographical Union No. 9, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk -of the county of Erie on the 12th day of January, 1900, upon the verdict of a jury for $650, and also from an order bearing date the 4th day of January, 1900, and entered in said clerk’s office, denying thé defendant’s motion for a new trial made upon a case containing exceptions.
    
      Tracy C. Becker, for the appellant.
    
      Thomas E. Boyd, for the respondent.
   Williams, J.:

There does not appear to have been service of any notice of entry of order denying motion for a new trial, so as to limit the appellant’s time to appeal therefrom under section 1351 of the Code of Civil Procedure. The only notice was of entry of order of judgment.”

The appeal from such order is properly here, therefore, and cannot be dismissed on the ground that the notice of such appeal was served too late.

The action was brought to recover damages sustained by plaintiff by reason of his discharge from employment with the proprietor of the Buffalo Emmvng News, alleged to' have been procured by the members of the defendant, an unincorporated association consisting of more than seven persons.

The allegation in the complaint was that such members, “ acting pursuant to a resolution passed by the said Union, and each of said members acting in concert with all the others, and conspiring together to accomplish their object, maliciously and by threats and intimidation, or other unlawful means, exercised on the business manager of this plaintiff’s employer, the said Edward H. Butler secured plaintiff’s discharge from his employment as machinist for the said Edward H. Butler, thus depriving plaintiff of his occupation and means of livelihood, to plaintiff’s damage in the sum of five thousand ($5,000) dollars.”

This allegation was denied by the answer, and the issue thus raised was tried before the court and jury.

After the evidence was given 'the court decided, as matter of law, that a cause of action had been established, and left only the question of the amoimt of damages to the jury. There was practically no dispute as to the facts. The coúrt very properly held that the question as to plaintiff’s right to recover was for the court and not for the jury. Whether the court correctly solved that question favorably to the plaintiff is the point to be determined here. The court, on appeal, has power to review that decision, even if there are not proper exceptions found in the record, and we think this is a case in which such power should be exercised. If the judgment is contrary to the law upon undisputed facts, it should not be permitted to stand. And more than this, an appeal from an order denying a motion for a new trial would ordinarily bring such a question up for review.

The facts appearing from the evidence so far as essential to be stated for the purposes of the question under review, are as follows; The plaintiff was a skilled machinist employed in the office of the Buffalo Evening News to take care of, and keep in repair, the typesetting machines there in use. He was not a typesetter himself. He was a member of the International Association of Machinists. •The foreman printer and all the typesetters and other compositors in the office were members of Typographical Union Ho. 9, of which the defendant was the president.- These two organizations affiliated in the United Trades and Labor Council of the city of Buffalo. The plaintiff was requested to take a card and thus become a member of Typographical Union Ho. 9, and refused to do so. The members. of Union Ho. 9 decided that their members would not. work in the News office with plaintiff unless he took such a card and became such member, and notified the News people that unless plaintiff complied with their request, or was discharged, the members of Union Uo. 9, constituting all the other working force in the office, would strike and discontinue work. The plaintiff still refusing to comply with this requirement, the plaintiff was discharged so as to avoid the strike and keep the men necessary to get out the paper. This statement puts the facts mildly, but truly, nevertheless, and the question is whether the members of Union Uo. 9 by this action rendered themselves liable in damages for depriving plaintiff of his job, his occupation and means of livelihood.

This question was very carefully considered in a recent case decided by the Appellate Division, first department (National Protective Assn. v. Cumming, 53 App. Div. 227), and it was there held that a labor organization may properly refuse to permit its members to work with the members of a rival organization and may notify persons employing members of both organizations that if they do not discharge the members of the rival organization it will cause its members and the members of other organizations allied with it to abandon the work, provided that in enforcing -their demands they do not use force other than such as is implied in the threat to aban, don the work or do anything tending to create a breach of the peace. The rival organization, or any member thereof discharged in consequence of the threat, has, under such circumstances no right of action against the other organization or its members.”

We have examined carefully the opinion and reasons assigned for this decision and the cases cited and referred to and discussed therein (Allen v. Flood, L. R. [1 App. Cas. 1898], 1; Davis v. United Engineers, 28 App. Div. 396; Curran v. Galen, 152 N. Y. 36), and- see no reason to disagree with or criticise the conclusion arrived at by the first department, Appellate Division. The principles there laid down are applicable to this case, and following that case we must hold that- the trial court erroneously decided that the plaintiff was entitled to recover in this action.

We do not deem it necessary to quote from the opinion in the case referred to, or the cases cited therein. Thé bwrrcm-Galen case in the Court of Appeals is not in conflict with the principles laid down in the first department case, as the opinion in the latter case clearly points out. Until the Court of Appeals overrules the first department, we think we should regard that case as con trolling upon us, irrespective of our own views upon the subject.

We conclude, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.

. All concurred.

Judgment and order reversed upon both the law and the facts, and new trial ordered, with costs to the appellant to abide event.  