
    
      Supreme Court—General Term—First Department.
    
      November, 1891.
    PEOPLE v. BARONDESS.
    Extoetion—Injuey to Business—Penal Code, §§ 552, 553, Sued. 1.
    Obtaining money from another with his consent induced by a threat to injure the business of the individual threatened by persuading his employees to absent themselves from work is not extortion under sections 552 and 558, subd. 1, of the Penal Code.
    The offence of extortion by the threat of the doing of an unlawful injury to prgperty under the Penal Code is the obtaining of money or property by a threat to injure some specific thing by a direct physical attack upon the object of the threat.
    The statutory crime does not consist of a threat to do an improper or unjust act, nor even of a threat to injure another’s business, but to do an unlawful injury acting directly upon, not merely affecting, the property of another.
    The act of persuading employees to continue a strike which is in itself lawful, does not constitute an offence.
    Appeal by defendant Joseph Barondess from a judgment of the court of Oyer and Terminer of New York county, Hon. Charles H. Van Beunt presiding, entered 7th Hay, 1891, upon a conviction of extortion.
    The indictment was in the following form:
    “ The grand jury of the city and county of New York, by this indictment, accuse Joseph Barondess of the crime of extortion, committed as follows:
    “The said Joseph Barondess, late of the city of New York, in the county of New York aforesaid, on the tenth day of February, in the year of our Lord one thousand eight hundred and ninety-one, at the city and county aforesaid, with force and arms, did feloniously and extorsively obtain from Abraham Popkin and Abraham Marks, copartners in trade, then and there carrying on business in the city as cloak manufacturers, in and by the firm name and style of Popkin & Marks, with their consent, a certain written instrument, being an order for the payment of money, of the kind commonly called bank-checks, and being then and there wholly unsatisfied, for the payment of, and of the value of, one hundred dollars, and the sum of one hundred dollars in money, lawful money, of the United States of America, and of the valúe of one hundred dollars of the goods and personal property of the said Abraham Popkin and Abraham Marks, such consent being then and there by him, the said Joseph Barondess, induced by a wrongful use of fear on the part of them, the said Abraham Popkin and Abraham Marks, and such fear being then and there by him, the said Joseph Barondess, induced by a threat then and there made by him to the said Abraham Popkin and Abraham Marks, to do an unlawful injury to their property, that is to say, to injure and destroy the said business of them, the said Abraham Popkin and Abraham Marks, and to prevent and hinder them from carrying on the same; against the form of the statute in such case made and provided, and against the peace of the people of the state of Hew York and their dignity.”
    To maintain the issues the prosecution upon the trial produced evidence which was claimed to show the following facts: that Abraham Popkin and Abraham Marks were on the 10th day of February, 1891, and for a long time prior thereto had been, copartners in trade, carrying on business in the city of Hew Yo;k as cloak manufacturers by the firm name and style of Popkin & Marks, as alleged in the indictment; that the defendant was at the date laid in the indictment and for some time prior thereto the president or general manager of a laborers’ union known as the Operators and Cloakmakers’ Union Ho. 1 of Hew York.City, with which the workmen employed by said Popkin & Marks were connected; that in the month of June or July, 1890, Popkin & Marks, having differences with their workmen who were then on strike, were called upon by the defendant as such president or general manager of said laborers’ union with the view and for the purpose of negotiating a settlement of said strike; that, thereafter, differences having again arisen between said Popkin & Marks and their workmen, touching the prices to be paid for work, the defendant again and on the 23d day of January, 1891, called upon said Popkin & Marks, stating that he came for the purpose of fixing the prices to be paid by Popkin & Marks to their workmen for work done on the various pieces and kinds of garments manufactured by them; that in answer to this statement of the defendant, Mr. Popkin stated that they would not allow any one to fix the prices to be paid by them for work done for them ; that the defendant then threatened to call the workmen of Popkin & Marks out on strike unless his demands were complied with; and thereupon Pop-kin & Marks yielded; that, accordingly, on the morning of the following day, Saturday, the 24th day of January, 1891, the defendant called again with a committee of several others, and after negotiating until four or five o’clock in the afternoon the prices were settled, the terms of settlement were reduced to writing, the writing was signed by Popkin Marks of the one part and by the defendant as such general manager as aforesaid of the other part; that thereupon Popkin & Marks were assured by the defendant that everything was satisfactory and that their workmen would remain at work; that on Monday morning, however, all the workmen quit work and withdrew in a body; that the next day Mr. Popkin sent for the defendant to come to see him, but the defendant said to the messenger that he would not go to see Popkin, that Popkin must come to see him and that he, defendant, wanted to see who ruled the union, Pop-kin or himself; that on the following day, Wednesday, Mr. Popkin attended a meeting of his workmen and asked them to tell him the reason why they had stopped work, informing them of the agreement in writing which he had made the previous Saturday with their representative, the defendant, and was told by their chairman, one Zipkin, that the prices fixed by the agreement were not high enough, and thereupon they submitted to Popkin a new contract, but the prices were too high for Popkin to agree to; after much discussion, however, it was agreed that Popkin should pay the prices stated in the new contract, less ten per cent, and thereupon the men agreed to return to work the next day, but the strikers did not return to work next day according to agreement ; on that day, however, Zipkin, their chairman, accompanied by one or two others, called upon Popkin and submitted for his signature a form of contract containing in addition to the terms agreed upon the day before a clause binding Popkin & Harks to employ a certain number of contractors and a certain number of pressers the whole year through, and Popkin & Harks were told by Zipkin that if they did not accept the contract in the form submitted their workmen would not return to work; Popkin & Harks refused to sign the contract and, as threatened by Zipkin, their men did not return to work.
    Popkin & Harks then employed non-union men to take the place of the strikers, and thus carried on their business until the 9th day of February next thereafter. On that day Zipkin and one of his fellows called on Popkin & Harks, and said they conceded that they had no right to dictate the number of contractors and the number of pressers they should employ, and stated that the men would waive that condition and would return to work the next day if Popkin & Harks would agree to pay the prices fixed by the said second contract and would discharge all the non-union men they had in the meantime employed, as aforesaid. Popkin & Harks thereupon agreed to pay the prices demanded and to discharge their non-union men. And did forthwith discharge their non-union men, but still the strikers did not return to work; but the next morning the defendant came, accompanied by four or five others, and stated that although Popkin & Marks had settled with their workmen, yet they had not settled with him, and that before they could have their workmen back again they must pay him, the defendant, $500. Popkin & Marks said to the defendant that they did not owe him one cent, and asked him to explain what the $500 was for. In answer to this request for an explanation, the defendant said the explanation was that if Popkin & Marks wanted their men back again to work they must pay him that amount of money; and this was the only explanation vouchsafed by the defendant. Finally, however, the defendant said he would take $300; but Popkin refused to pay one cent, saying that he did not know what it was for. Thereupon defendant stated, in the way of ultimatum, as follows : “ If you do not give me the $300 you can’t have your people back again to work. I will take $300 as long as I am here, and as quick as I am going to leave this place it will cost you $500.” notwithstanding this threat, Pop-kin persisted in his refusal to pay one cent, saying that he would sooner close up his business. The defendant and his fellows then left. In a few minutes, however, Zipkin returned. Mr. Marks had a conversation with him, as the result of which he offered to pay as much as $100 if the men would come back to work, and Zipkin said he would try his best to get the defendant to accept that amount. •He then left, and came back in a little while and told Marks he had settled the matter for $100. He then went out again and came back shortly with the defendant and several others. The defendant then said : “ I will take $100. I am doing that as a favor to Zipkin, and, instead of $300, if you want your men back I will take $100.”
    Mr. Marks then asked to whose order the check was to be made out. The defendant told him to make it to his order. Marks, then made out in the firm-name a check for $100, payable to the order of the defendant, and. handed it to him. The defendant thereupon endorsed the check, and asked Marks to endorse it, so that he, the defendant, could get the check cashed. Marks did as requested. The defendant went straightway to the bank upon which the check was drawn and had it cashed. Popkin & Marks gave this check to the defendant upon the representation that otherwise the men would not be allowed to return to work, and believing that the defendant could and would prevent them from returning unless he, the defendant, was previously settled with. Popkin & Marks had at the time on hand material for $50,000 worth of garments. The season for the sale of such manufactured garments would close about the 15th of April. Having, in compliance with the demand of the strikers, discharged their non-union men the day before, Popkin & Marks feared great injury to their business if the strikers did not return to work, and because of this fear, and believing that the defendant would prevent the strikers from returning to work unless his demand for money was complied with, Popkin & Marks, induced by the defendant’s threat, gave him their check for $100.
    The defendant’s version of what took place in reference to the money was as follows :
    He said that on the 9th of February, when the prices were agreed to, a meeting of the union was held at 21 Suffolk Street.
    That at that meeting the employees voted that they were not satisfied with the settlement which had been made, and their dissatisfaction went to the extent that they wanted to be paid for the time that had been lost, and therefore demanded $300.
    “ I used in that same night—I did use—my influence, and I told them : ‘ Look, if you will begin to ask Mr. Pop-kin now for $300, you will be compelled to wait five days, and then you will lose thousands of dollars benefit. I am not the president of the union, and I have no right to state to the men what they shall do. I am sent by the Central Executive Board, and I shall go right to them to make the men be satisfied without the money.’ I asked them not to take the money. I said : ‘ He will try to take revenge on you. Why ask him for money ? ’ I could not help it. They sent a committee to Hr. Popkin from the Joint Board of Tailors’ and Cloakmakers’ Union and the Gutters’ Association. I was there going down in the morning to Hr. Popkin.”
    
      Question. “ Who spoke first ? ”
    
      Answer. “ Simon, the president of the Cutters’ Association.”
    
      Q. “ What was his name % ”
    
      A. “ Simon.”
    
      Q. “ What did Simon say ? ”
    
      A. “ He said: ‘We come here as a committee of gentlemen of the Operators’ and Cloakmakers’ Union and the Cloak-cutters’ Association to explain to you the request of the employees to pay, for their lost time, $300. They claim that they have lost more than a thousand dollars, and all we want is to ask you to pay their damages or their loss of time—$300.’ Hr. Popkin then said : ‘ I will not pay a cent.’ I said then: ‘ Hr. Popkin, I feel very sorry the strike is not settled yet; but I must go back to the board and report, and see what they say. Haybe they will be satisfied,—I am satisfied, too,—but if not, I can’t help it.’ I said, ‘ I will go and report to the committee.’ Hr. Zipkin left the price-list there in the establishment of Popkin & Harks. He then went back to get the priceJist, and when I was on the platform to report to the men that Hr. Pop-kin refused to pay a cent, when I begged them for the benefit of the firm of Popkin & Harks to go back to work without a cent more, Hr. Zipkin came in and said: ‘ Wait a little. Hr. Harks told me I shall come back with you and the cloakmakers and the strikers of the firm of Popkin & Harks, and we will give you $100 for the lost time. Are you satisfied with the report?’ ‘ Yes,’ I said, ‘I am.’ ‘ Are they satisfied ? ’ I asked them if they were satisfied. One of them said ‘Ho,’ and one of them said ‘Yes.’ I explained to them that they lost too much time, and that it is not the time of the strike, and that it would be for their benefit to resolve to accept $100. I then went back to Popkin in the presence of the committee, and when I came in I didn’t find Mr. Popkin; I only found Mr. Marks. Mr. Marks then took my hand and shook hands with me, and told me: Now, I am glad to have the trouble settled ; I am glad to have the strike over.’ I said, I am glad, too.’ Then he was standing behind the office, and I and Jacob Simon were standing all in the office by the window, and then Mr. Marks asked me to whom he should make out the check. Mr. Zipkin was standing by me, and I asked him : ‘ Mr. Zipkin, to whom shall he make out the check ? ’ I told him first,‘1 think it will be advisable to have it made out in the name of the union,’ but he said: ‘No, the union has got nothing to do with it. That money belongs to the employees.’ Mr. Marks then said: ‘ To whom shall I make out the check ? ’ I agreeing, Zipkin told him that the best way would be to make out the check in my name. Then I said: ‘ Mr. Marks, make out the check in my name:’ Then he did so, and endorsed it, and I signed it, too.”
    
      Q. “ Up to that time had you said either to Mr. Pop-kin or to Mr. Marks that the strike was settled, but that they didn’t settle with you, and that you controlled the* men, and that. unless they gave you the money that the; men would not come back ? Did you say anything of that kind?”
    
      A. “ Never said anything of the kind.”
    
      Q. “ Now resume,—go ahead with the check.”
    
      A. “ He gave me the check, and I went with Mr. Zip-kin to the bank. I asked him for the cash. He said it was just as good as cash. ‘ Go to the bank. It is down there on the comer of Broadway and Broome Street. Cash it there, and you will get the money.’ I went with Mr. Zipkin and cashed it, and endorsed the check and got the money, and went with Mr. Zipkin to the office and delivered the money to the cashier. I got to the office and tried to find the cashier. The cashier was not there.”
    
      Q. “Did you take that check from Popkin & Marks for yourself or for the members of that strike ? ”
    Objected to. Objection overruled.
    
      A. “ I said to Mr. Popkin : ‘ I take the money for the purpose to be distributed between the working-people of Popkin & Marks.”
    
      Q. “ At their request ? ”
    
      A. “Yes, sir—as they instructed me.”
    
      Q. “ Did you, at the time that you received that money, intend to appropriate one cent of it for your own use ? ”
    Objected to. Overruled.
    
      A. “'No.”
    
      Howe & Hummel, for defendant, appellant.
    
      De Lancey Nicoll (district attorney), Bartow S. Weeks, (assistant), for the people, respondents.
   Barrett, J.

The main question in this case is whether the obtaining of money from another, with his consent, induced by a threat to injure the business of the individual threatened, by persuading his employees to absent themselves from work, is “ extortion ” as that offence is defined in the Penal Code (sec. 552, 553, Subd. 1). I held in the cases of People v. Wilzig, Holdorf and Dannhauser (4 N. Y. Crim. Rep. 403), that it was extortion to procure money by fear induced by the threat to continue a so-called “ boycott,” in which the elements of violence, intimidation, and direct injury to tangible personal property were prominent and marked features. It was also ruled in those cases that the threat “ to do an unlawful injury to the property of another, which is one of the statutory conditions of this offence, might be predicated of an intimidating attitude on the part of those engaged in the overt act without actual violence or direct threat by word of mouth. Actual violence was there proved, also actual injury to the complainants’ furniture, goods, and fixtures; and the question whether the threat to continue the “ boycott ” in the manner in which it had been conducted amounted to a threat to continue the physical injury to the complainants’ furniture, goods, and fixtures, was left to the jury. In the case at bar the elements of violence, intimidation, and physical injury to tangible property are entirely wanting. The threats made were not threats of violence, nor was the attitude of the defendant or of his associates an attitude of physical intimidation. The utmost that can be claimed by the prosecution is that the defendant, as a leader, exercised sufficient influence over the complainants’ employees to keep them from resuming their employment until he was paid the sum finally agreed upon. He utilized that influence and held it over the complainants to accomplish his purpose. The employees, whom he professed to represent, were equally free from violence or from an attitude of intimidation. Thus the threat, as already stated, was merely that the men would not work until the defendant was paid. Was that a threat to do an unlawful injury to the complainants’property ? The answer, in my judgment, must be in the negative. It certainly was not a threat to do injury to the material or to the other property contained in the complainants’ place of business. It was, therefore, simply a threat to injure his business or estate; in other words, to reduce his gains or to prevent his making gains. There can be no doubt that an injury to one’s business is an “ injury to property ” for the purposes of a civil action. Indeed, the Code of Civil Procedure (sec. 3343, subd. 10) defines an “injury to property ” as an actionable act whereby the estate of another is lessened. But this definition is expressly limited to the construction of the Civil Code in which it is embodied, while it is conspicuously absent from the list of definitions given in the Penal Code (Penal Code, § 118). It must be supposed that the legislature thus intended to eliminate mere actionable acts, whereby the estate of another is lessened, from the domain of criminal offences, and to limit indictable wrongs to injuries done to personal property, as such property is defined in the Penal Oode. Thus a threat unlawfully to injure “ goods, chattels, and effects,” or to deface or destroy “ money, evidences of rights in action or written instruments ” of a particular description, would be a threat to do an unlawful injury to property and would suffice to make out a case of extortion. This view is in harmony with the general purpose and intent of criminal jurisprudence which deals mainly with what is materially evidenced. The opposite view would leave the question of guilt or innocence to be decided, not by the act of the accused alone, operating upon some tangible thing, but by evidence aliunde with respect to an intangible condition of affairs. If, for instance, property here means business,” then what was the threat, and how was it to work an injury to the complainants’ business ? It was, as we have seen, a threat to keep people from working for the complainants. Hot all people, but only the former employees of the complainants. Why should that necessarily work an injury to their business? Only by showing the urgent present need of workmen, the inability to secure competent persons to fill the places of the former employees, the actual condition of the material required to be manufactured, the extent of existing orders for manufactured goods, and a variety of other considerations going to make up the present status of the business. How, if the complainants could supply the places of the former employees with better workmen at less wages, then the threat would be to benefit the business, not to injure it. But even if the' tendency of the act threatened might be to injure the business, how would that help the matter ? The statute does not deal with tendencies or probabilities, much less possibilities. The threat must he to do an unlawful injury to property, not to do something which may affect it injuriously, but which must injure it.

If the prosecution is right, the statute would operate upon “good-will” as well as upon reduced profits—in fact, upon property invisible and non-objective, the very existence of which would have to be brought to light by independent evidence. This could not have been the intention of the statute. The corpus delicti is, first, the obtaining of the money or property, and second, the threat to injure some specific thing by a direct physical attack upon the object of the threat. Property and person are placed in the same category, and the property contemplated is something that can be injured in the same way as “ the person” can be injured.

This injury, whether to person or property, must surely be direct. The prosecution, for example, cannot say that, although there was no threat to molest the complainant physically, or even to touch his person, yet the menace, if -executed, might have affected his nerves and thus injured his person. Consideration of the law as it existed prior to the Penal Code adds force to this construction. At common law, extortion signified any oppression by color of right; but, technically, it was defined to be the taking of money by an officer by reason of his office, where none at all was due, or not so much due, or when it was not yet due (Wharton’s Criminal Law, 3d Ed. p. 833 ; 1 Hawkins Pleas, Ch. 68, § 1 ; People v. Whaley, 6 Cow. 663). These rules as to the taking of unlawful fees were codified in the Revised Statutes (2 R. S. Edmond’s Edition, pages 669, 670, §§ 5, 6, and 7 ; pages 778, 779, § 17). And we also find there a provision making a verbal or written threat to accuse another of any offence, with intent to extort property or money, a misdemeanor (2 R. S. Edmund’s Edition, p. 712, § 2). The obtaining of money by force or fear does not, therefore, seem to have been extortion either at common law or under the Revised Statutes. It was robbery at common law to extort money under the threat of charging one with an unnatural crime (Rex v. Jones, 1 Leach, 130 ; Rex v. Donally, 1 Leach, 103 ; Rex v. Cannon, R. & R. 146). And this view was taken of the provision of the Revised Statutes, defining robbery in the second degree, in People v. McDaniels (1 Park Cr. R. 198), notwithstanding the specific legislation to which I have referred, making the threat of such an accusation with intent to extort money a misdemeanor. Under the Revised Statutes the sending of a letter threatening to accuse any person of any crime, or to do any injury to the person or property of any one with a view or intent to extort any, etc., was declared to be an attempt to rob. And the fact that this offence was placed in the same class as that of robbery was emphasized in People v. Griffin (2 Barb. 427).

It will thus be seen that the offence now under consideration, though classed for the first time in the Penal Code as extortion, really completes the legislation against robbery, attempts at robbery, and cognate offences. Section 552 of the Penal Code is in the alternative, treating extortion by force and fear as one thing, and extortion by official action ¡is another. These two methods of extortion are separately defined in subsequent sections, but it is apparent from the language of the section providing the penalty for extortion by force or fear (sec. 554) that the latter is but a supplement, under the name of extortion, to robbery in the first, second, and third degrees. This section (554) provides for such punishment only when the money or other property has been extorted by force or fear “ under circumstances not amounting to robbery/” in other words, when the money or other property has been obtained “ with the consent ” of the complainant and not against his will.” For really the main distinction between robbery in some degree and this form of extortion lies just there. Robbery is the unlawful taking against the will by means of force or violence or fear of injury, immediate or future, to one’s person or property (Penal Code, § 224), while extortion is the obtaining with consent by similar means. Thus, unless robbery could be predicated of the taking against the complainant’s will of the money here obtained with his consent (that is, in case snch money had really been taken against his will), it is difficult to see how extortion can be sustained in a case where it was taken with his consent. It certainly would be a novel indictment for robbery which charged the taking of property against the will of the complainant, by means of fear of injury to his property, e.g., his business, resulting from threats on the part of the robber or highwayman that he would use his influence with the complainant’s landlord not to extend his lease, or with the manufacturers not to sell him goods, or with the banks not to discount his paper.

There is another difficulty in the present case, and that is that the injury threatened must in itself be “ unlawful.” Now, the abstention from work on the part of the operatives was not unlawful. It is not claimed that they broke any contract of service or hiring, knowing or having reasonable cause to believe that the probable consequence of so doing would be to endanger human life or to cause grievous bodily injury, or to expose valuable property to destruction or serious injury (Penal Code, § 673). It is not, in fact, pretended that these operatives were working for the complainants under any special contract at all. On the other hand, they were not guilty of “ conspiracy ” for the reason that orderly and peaceable co-operation for the purpose of obtaining an advance in the rate of wages is expressly excepted from the conspiracy sections (Penal Code, sec. 170). This exception was further emphasized by an amendment to sec. 675 of the Penal Code, which went into effect on the first of September in the present year and which reads as follows:—“ But nothing in this Code contained shall be so construed as to prevent any person from demanding an increase of wages or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them as shall be a just and fair compensation for services rendered.”

Thus the law is unmistakable that so long as there is neither violence not an attitude of intimidation nor interference with others, employees are free to work or to refrain from working, as they please; free individually and free in combination. The attitude of the complainant’s employees, at the time the threat in question was made, was not, therefore, unlawful. It would seem to follow that a threat to induce a continuance of their lawful attitude could not of itself be unlawful, at least in the sense of criminal. Whether a civil action would lie for damages sustained by the defendant’s acts is another question, one with which we have nothing now to do. It is sufficient for the determination of this case that the defendant’s threat to use his influence to keep men from working for the complainants, however wrong morally, was not criminal. It was not a threat to do the complainants an unlawful injury, but to continue a condition of things which, even if injurious, was undoubtedly lawful. The act threatened—that is, the act of advising, persuading or exhorting the men not to resume work—was not in itself indictable, and was no more unlawful than the act of the men in abstaining from work. The statutory crime does not consist of a threat to do an improper or unjust act, nor even of a threat to injure another’s business by lawful means, but to do an unlawful injury to the property of another. Whatever injury was being done to the complainant’s business at the time of the threat in question was not an unlawful injury. And it follows that the defendant cannot be said to have threatened to do an unlawful injury to such business.

For these reasons the judgment and conviction should be reversed and a new trial ordered.

Ingraham, J.

The defendant was indicted for extorting from the firm of Popkin & Marks one hundred dollars by means of a threat “ that he would do an unlawful injury to their property; that is to say, to injure and destroy the said business of them, the said Popkin & Marks, and prevent and hinder them from carrying on the same.”

The crime of extortion is defined by sec. 552 of the Code to be the obtaining of property from another with his consent induced by a wrongful use of, or fear, or under color of official right, and the defendant claimed on the trial, and now claims before us, that he is not guilty of extortion as defined by this act, and that conceding' the testimony offered on behalf of the people to be true, the crime was not proven.

By section 553 of the Penal Code it is provided that fear such as will constitute extortion may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or to any member of his familyand to support this judgment, it must appear that the defendant extorted from the firm of PopMn and Marks the one hundred dollars mentioned in the indictment by the wrongful use of fear induced by a threat to do an unlawfal injury to the property of such firm.

* From an analysis of section 553, it appears that the threat to induce fear as defined by the section must contain two elements: first, the threat must be to do what is unlawful ; and second, the injury must be an injury to the property or person of the individual threatened, or to a relative of his, or to a member of his family, and unless it appears that what the person accused threatened to do was unlawful, and if performed would do an injury to the person or property of the person threatened, the party making the threat is not guilty of the crime.

In construing this section of the Code we should give a reasonable construction to the language used—not a forced and unnatural construction extending the meaning of the words so as to include threats which a person ,of ordinary intelligence would not understand to be within the fair meaning of the language.

Popkin and Marks were cloak manufacturers in the city of Hew York. Their employees had left work in consequence of a dispute between themselves and the firm as to wages, and on the 9th of February an agreement was arrived at between the firm and their employees whereby the employees agreed to return to work on the following morning.

On that morning, however, they did not return to work, but the defendant came to the office of the firm accompanied by several of the firm’s employees, and at that time he demanded the sum of $500, saying to Mr. Popkin, “ You have got to pay me $500 to have your people back again to work.” Upon the refusal of Popkin to pay any sum, he reduced his demand to $300, saying, “ If you do not give me $300 you cannot have your people back again to work; I will take $300 as long as I am here, and as quick as I am going to leave this place it will cost you $500.”

That demand was refused and defendant left his place. In a few minutes Zipkin and one of his companions returned, and after some consultation with Marks one of the members of the firm—Marks—said he would pay the defendant $100. Zipkin left and in a short time returned with defendant, who then said, “ I will take $100; I am doing that as a favor to Zipkin, and instead of $300, if you want your people back, I will take $100.”

A check was then drawn by the firm to the order of the defendant and given to him, upon which he drew from the bank account of the firm the sum of $100, and this is the only evidence of any threat made by defendant to Popkin and Marks, or to any one.

It seems to me clear that there was no threat to do an unlawful injury to property. The defendant did not expressly threaten Popkin and Marks that he would do anything himself; there was no statement that he would prevent the men from working ; what he said was that they would not return to work. It was certainly not unlawful for these workman to refuse to work for Popkin and Marks, nor was it unlawful for defendant to advise them not to work. There was no threat, therefore, to do an unlawful act. Defendant did not of his own accord go to the place of business of Popkin and Marks, but was sent for by them, and his statement that the men would not return to work, even if that could be construed into a threat that he would prevent them from returning to work, was not a threat to do an unlawful injury to the property of Popkin and Marks because of the fact that unless the men did return Popkin and Marks could not advantageously continue their business.

If one of Popkin and Mark’s employees had refused to work for them, such a refusal, although it might have seriously affected their business,—mighthavecaused them serious loss,—would not have been an unlawful injury to their business, because such an employee had the legal right to work for Popkin and Marks or not, as he pleased ; and if it was not unlawful for an employee to refuse to work, it was not unlawful for a third party to advise or induce him to refuse to work : so that a threat of such third party that he would prevent such employee from working would not be a threat to do an unlawful injury to the employer’s business.

Many illustrations might be given of instances where the exercise of a legal right by one person would cause an injury to the property of another, and where there is no penalty or liability because of the exercise of such right.

The owner of a dwelling-house could devote it to business purposes and thereby injure the value of adjoining property. Yet such use would not be an unlawful injury to the adjoining property, and a threat by the owner to make such a use of his property would not be a threat to do an “ unlawful injury ” to property. It might be said to be a threat to do a “ lawful injury ” to the adjoining house, but such a threat is not sufficient to sustain a conviction for extortion, and it seems to me equally clear that a threat to induce the owner thereof to so use his house is not a threat to unlawfully injure property, because if it is not unlawful for the owner to use it for a particular use, it is not unlawful for a person to procure the owner to so use it.

Bor do I think that such a threat can be said to be a threat to do an injury to property.

There is no evidence that the defendant had any knowledge that Popkin and Marks had any unmanufactured goods on hand at the time of the occasionin controversy, or that he knew or had reason to know that the refusal of the men to return to work would cause injury to any of their property.

Popkin and Marks had a right to employ such men as they chose, and their employees had a right to work for whom they chose, and the mere supposition that the refusal of this particular body of men to work for Pop-kin and Marks would in some way embarrass them in manufacturing goods for their fall trade, is all that there is to sustain the charge that this was a threat to injure property.

But it seems to me clear that the evident intent of the statute is that the threat should be to injure a specific piece of property.

There must be the existence of a res and a threat to injure it.

The section in question is part of chapter 5 of title 16 of the Penal Code. The title treats of crimes against property, and includes arson, burglary and house-breaking, forgery and counterfeiting, larceny, embezzlement and extortion.

The word property, as defined by section 718 of the Code, would not include a man’s business, and there could not certainly be an indictment for larceny for stealing the business.

The. meaning of a threat to do an unlawful injury to .the person of an individual would be a threat to, in some way, injure his body; and the threat to do an unlawful injury to his property, applying the words in their ordinary significance, would be in some way to injure some specific property.

It could hardly be claimed that a threat to injure a person’s character or his professional reputation would be an injury to property within the meaning of this act; and yet such a threat, where the successful conduct of such person’s business depended largely upon his character or reputation, might seriously injure his business.

It is a threat to injure the thing that constitutes the crime, not to do an act which indirectly may do damage to business or its successful conduct.

I think, therefore, that the evidence was insufficient to sustain the conviction, and the judgment must be reversed and a new trial ordered.

Daniels, J. (dissenting).

The indictment charged the defendant with having obtained a check for the sum of one hundred dollars, and of the value of that amount, from Abraham Popkin and Abraham Marks, who were copartners in trade, carrying on .business in the city of ¡New York as cloak manufacturers, by means of a threat made by him to them to do an unlawful injury to their property, that is to say, to injure and destroy their business and prevent and hinder them from carrying on the same. It appeared by the evidence that these two persons were cloak manufacturers employing a large number of persons in that business, and that in January, 1891, a strike took place by which the persons in their own immediate employment, and those employed by contractors with them, refused to work until a more satisfactory arrangement might be made for their compensation. While these persons were on their strike the firm employed others to manufacture their garments who were either non-union persons, or else engaged in the employment, in violation of the rules of their union. And efforts were made to arrange and agree upon terms which would be satisfactory to the individuals who were out upon the strike, and would induce them to resume their former employment. And in the course of these proceedings the defendant acted on behalf of the persons who were engaged or combined in the strike. He acted as their representative, and was the manager of the Cloakmakers’ Union. With him also were associated other persons as a committee who participated in the negotiations had with the members of this firm of Popkin & Marks. A result was reached by which a scale of prices was agreed upon and assented to by the defendant on or about the 24th of January, 1891. But they proved to be unsatisfactory to the individuals engaged in the strike, and further negotiations continued to obtain more advantageous terms by way of compensation for the services of the individuals included in the strike. These were finally obtained on the 9th of February, 1891, and it was agreed that the former employees of the firm should return to their work, provided the firm discharged the persons from their service who, in the meantime, had been employed by them. The members of the firm assented to this condition, as well as to the scale of prices, and discharged the persons from their employment who were not members of the union, or who as members had been engaged in their employment in violation of the rules or regulations of the order. But the persons who had been upon the strike did not return to the service of the firm. And evidence was given upon the trial of the indictment by Mr. Popkin to the effect that he inquired of the defendant why it was that these persons had not resumed their employment, as that had been arranged between them and the members of the firm. And his evidence is that the defendant then informed him that the persons who had been upon the strike did not return to the employment of the firm for the reason that Popkin had not settled with the defendant. He stated then that he asked the defendant “ What kind of a settlement have I got with you? I don’t owe you any money.” And that the reply was, “ You have got to pay me five hundred dollars to have your people back again to work. ... If you want to have your people back again to work you have got to pay me that amount of money.” I told him I didn’t know what for. Finally he says to me, “I will take three hundred dollars.” I told him: I wouldn’t give you one cent because I don’t know for what.” He says, “ If you do not give me the three hundred dollars you can’t have your people back again to work.” And when this conclusion was reached and asserted, the defendant, together with one of the persons named Zipkin, who was with him, left the store, and shortly afterwards Zipkin returned and said something about a settlement for one hundred dollars. This statement was made to Hr. Harks, the other partner. And shortly after that, the defendant returned to the store with Hr. Zipkin, and then stated, “I will take one hundred dollars. I am ■doing that as a favor to Zipkin, and instead of three hundred dollars, if you want your people back, I will take one hundred dollars.” And thereupon a check was ■given to the defendant, subscribed by the firm, for the sum of one hundred dollars, upon which the defendant received the money. The witness further testified that he believed, at the time the check was paid to the defendant, that the latter had the power to keep his men from returning to their work, and it was in that belief that he paid the money. The evidence given by Harks, the other partner, was not so full or complete as that obtained from the witness Popkin, but it still tended to corroborate the evidence of the latter. And so did that of the witness Bermen, who was the book-keeper of the firm. It was also stated that the defendant represented himself as having the control of these persons who previously had been in the service of the firm, and had agreed to return to that employment.

At the close of the case on the part of the people, a motion was made for the acquittal of the defendant, which was denied, and the counsel for the defendant excepted to that denial. This motion evidently proceeded upon the theory that the threat, which the jury could very well imply or infer from what is stated to have taken place, was not such a threat as the law required to create the offence of extortion. And that position has been taken in support of the present appeal from the judgment. Whether the evidence was sufficient to place the case within the provisions of the law relative to this offence must depend upon the construction which should be given to the statute enacted to define and punish the crime of extortion. It has been declared by section 552 of the Penal Code of the state that “ Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.” And by section 553 of the same Code it has been declared that Fear, such as will constitute extortion, may be induced by a threat to do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or to any member of his family.” Assuming the evidence of the witness Popkin to be reliable, as that may properly be done, inasmuch as the jury appear to have accepted it as truthful, the point is presented whether a threat to prevent the persons who had been upon the strike from returning to and entering the employment of the firm was a threat to do an unlawful injury to the property of this firm. It is stated in the evidence of the witness first sworn, that they had on. hand material cut up and ready for manufacturing and not manufactured, and that what was cut and uncut amounted to the sum of about fifty thousand dollars, and that was designed to be manufactured by the firm in the course of its business. It was also stated that the season for the sale of their manufactured garments closed about the 15th of April. The firm at the time had become, by the discharge of the persons who had been employed by it, incapable of proceeding with the manufacture of these garments, and had placed itself and the business carried on by it in a state of entire dependence upon the individuals who had been engaged in .the strike. And the effect of what is stated to have been said to one of its members by the defendant was that this business should be interrupted and necessarily remain in suspense until the money which was demanded should be paid over. The defendant, according to the testimony of Mr. Popkin, asserted himself to be in such a relation to the persons on the strike, even after they had adjusted their differences as to a compensation, as to control their movements and prevent them from returning into the service of the firm unless his demand was satisfied. By this interposition of his authority over the working-people the belief is stated to have been produced that the persons would not return to their employment until this money was paid to the defendant. And that of itself was a threat on his part to injure the property or business of the firm, for the interruption of that business would necessarily be attended with loss to the firm. And a loss resulting from the suspension or interruption of the business would necessarily be an injury to property, and it was to avoid that injury that this money was paid over.

The statute does not require the narrow construction insisted upon by the defendant’s counsel. For it has not been, either by its language or reasonable import, confined to the case of an actual injury to some specific article of property, but it has been made to include the threat to do any unlawful injury to property. And business is property, as much so as the articles themselves which are included in its transactions. Besides that, this term “ property ” has been so defined by subdivision 9, 14, and 15 of section 718 of the Penal Code, as to include the business itself and the loss resulting from its interruption. By the first of these subdivisions it has been declared that “ The term ‘property ’ include both real and personal property, things in action, money, bank-bills, and all articles of value.” And it has been further declared by subdivision 15 of the same section that the term “ personal property ” includes every description of money, goods, chattels, effects, evidences of rights in action, and all written instruments by which any pecuniary obligation, right, or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged, or diminished, and every right and interest therein. And this is conformable to the significance given to the same term by legal writers. For it has been said by Blackstone that property consists in the free use, enjoyment, and disposal of all the owner’s acquisitions, without any control or diminution save only by the laws of the land (1 Blackstone Com. [Sharswood Ed.] 138).

And in Springfield Ins. Co. v. Allen (43 N. Y. 389), it was stated in the opinion of the court that “ Property is a thing owned, that to which a person has or may have a legal title ” (Id. 395). And in all its attributes it has been brought within the protection of the constitution of both the nation and the state by the declaration that .no person shall be deprived of property without due process of law. And that includes within this term a business which may be built up for the manufacture and sale of property, as well as the tangible articles themselves employed or used in the course of such business. There would obviously be no reason for so distinguishing the word “ property ’’ as it has been used in these . sections of the Code, as to apply it solely to tangible articles capable in and of themselves of receiving direct injury by the unlawful or wrongful act of another. The section has not employed the term in that manner, but it has included it in its broad and unrestricted sense, applying its prohibition to whatever may be properly maintained to be property. And the business of persons engaged in it is certainly, within the unrestricted significance of the term as it has been employed, as much a matter of property as any of the goods or garments manufactured or sold in the course of such business. The defendant consequently was not entitled to the direction which was asked for in his favor, for the evidence did tend to establish the existence of an offence within the scope of this indictment.

An exception was also taken to what was stated to have been said and done at one of the meetings held by the cloakmakers. Mr. Zipkin was the chairman of that meeting, and was with the defendant at the office of the firm when the prices were fixed. And not only from the evidence given on the part of the prosecution, but that also produced in behalf of the defendant, it was made to appear that he was their substantial representative, and that his services were employed to harmonize the differences between the cloakmakers and this firm. And both on behalf of the prosecution, as well as the defendant, the proceedings of the meetings of the cloakmakers were proved in order to exhibit their intention and state of mind concerning the resumption of their employment. They were, in fact, as the evidence indicated the case to be, co-operating together. They asserted them claims, and the defendant endeavored to obtain such concessions as would satisfy these persons. And there was consequently no impropriety in showing what was exacted by them as a subject-matter falling within the province of the defendant for negotiation and settlement. There was really no dispute as to their exactions, or the fact that they co-operated together to secure the concession of their terms, or the settlement upon others which should be satisfactory to them. Both parties were acting to bring about this result. And to attain it, it became necessary to understand what the cloakmakers themselves required should be made in the way of concessions for advanced compensation for their services. And evidence of what took place at their meeting was admissible for the purpose of proving what they insisted upon, and what the defendant himself endeavored to secure, in their behalf.

The defendant was asked upon his own examination as a witness whether he kept the money himself, that sum of one hundred dollars. This was objected to, and the objection was sustained, and to that an exception was taken. The theory of the defence was that the defendant demanded this money not for himself, but as some compensation for the cloakmakers during the time they had been engaged in the strike. And the object of the inquiry was probably to show that he had paid over the one hundred dollars to them, or for their benefit. And if no other evidence had been given concerning this money, it would probably have been error to have excluded this answer. But the witness himself had previously stated that he went with Mr. Zipkin and cashed the check “ and got the money, and went with Mr. Zip-kin to the office and delivered the money to the cashier.” He also testified that he stated to Mr. Popkin that he took the money to be distributed between the working-people of Popkin & Marks ; that he had obtained it at their request as they had instructed him, and did not receive it intending to appropriate any of it to his own use. And that with the other evidence included all that was required to be proved to relieve the defendant from this criminal accusation if the jury had confided in his statement.

He was also interrogated as to remark that he had made at a meeting at which he was present as one of the speakers. But there was no error in taking his answer as to what he had said at the meeting as some evidence bearing upon his general intention in the control or management of the affairs of the unions. He stated generally that' he believed that the working-people had a right to unite themselves and form a union and ask for justice. And that, no doubt, he was correct in stating. This subject was very fully examined in Thomas v. Musical, etc.,Union (49 Hun, 171),in which the writer examined the authorities accessible upon this subject. And it was there concluded that all persons had the right to prescribe the terms upon which they would perform their services. And that this was not only an individual right, but it was one which could be protected by the combination of two or more persons. And it was their right to refuse to render their services for any person who should be offensive or disagreeable to them, or with any person who should not for any cause receive their approval that so far the law permitted all working-people to combine together either for their individual or their mutual protection. And while these views were not there expressly accepted by the other members of the court, they are still deemed to be well supported by the .authorities. And the case in which they were expressed, as it was, in fact, decided, is no authority to the contrary, for the reason that the decision made by the majority of the court, as well as by the special term, was afterwards reversed by the court of appeals (Thomas v. Musical, etc., Union, 121 N. Y. 45). There was accordingly no infringement of the law in what the defendant himself in this manner stated he had said, nor by what he afterwards conceded to have been his additional statement. And no harm, therefore, could have resulted to him from what he admitted to have been his remarks .at the meeting.

The verdict of the jury has been objected to as against the weight of the evidence. This objection has been raised upon the fact that four witnesses besides the defendant testified that they were present at the time when the money was demanded by him from Mr. Popkin, and that he demanded the money not for himself, but to distribute or to divide among the persons who had been out of employment during the period of the strike. Further evidence was given by two witnesses sworn on ^behalf of the defendant as to statements made by Mr. Popkin that there was no extortion in obtaining the money. This, however, was denied by Popkin, and in effect also by his wife, who was present at one of the conversations. Further testimony was also given to prove that the defendant had a good reputation among those who knew and had business intercourse with him. And from the proof, as it appears by the case, there was certainly sufficient, if the jury had credited the-statements of the witnesses, to secure the defendant’s acquittal. But this court, not having the advantage of seeing the witnesses, and listening to the statements, and observing their manner as the jury did, cannot on that-account assume that the verdict was not in accordance with the evidence. It will often occur that witnesses, may unite in their evidence, as those did so on the part of the defendant, when the jury from their conduct or appearance upon the stand will fail to be impressed with the truthfulness of their statements. And the. court upon an appeal, where the evidence may be in. that manner rejected, is not at liberty to say that the jury have erred as long as they had sufficient evidence before them on the part of the prosecution to justify their verdict. On this subject it has been said that “ when there is evidence on both sides and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses, in observing, the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony” (Baird v. Mayor, 96 N. Y. 567, 577).

And this principle requires the conclusion of the jury, as it has been expressed by their verdict, to be adopted and maintained by the court, unless the preponderance of evidence is so great as to indicate either a misunderstanding of the case or the influence of prejudice, passion, or corruption. The present case cannot be held to be of that description. It was, on the contrary, entirely proper for the consideration and the decision of the jury, and their verdict cannot be set aside as opposed to the weight of the evidence. The judgment, on the contrary, is fully supported by the case as it was presented on the part of the prosecution, notwithstanding the evidence produced in favor of the defendant, and it should be affirmed.

Judgment reversed and new trial ordered.  