
    
      Leopold Sinsheimer et al., Resp’ts, v. United Garment Workers of America, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April, 1894.)
    
    1., Injunction—Combinations.
    • Combinations for the assertion of rights or protection against wrongs are not the subject of injunction, unless they infringe upon provisions of law.
    3. Same.
    Courts of equity will not permit the forms of law to be used on behalf of one party against another, where each is endeavoring to secure his ends by similar means.
    3. Same.
    Nor will they intervene, where the plaintiff is equally implicated and does not come into court with clean hands. ,,
    4. Same.
    A preliminary injunction will not be granted, where there is no proof of any acts of violence, injury to property or threats or intimidation on the part of defendant.
    Appeal from an order granting a motion restraining the defendants, individually and in their respective capacities, from issuing circulars directed against plaintiffs to tradesmen in various cities requesting the discontinuance of trade with plaintiffs, and from boycotting the plaintiffs, or in any manner interfering with their business.
    
      A. L. Fromme, for app'lt; Wm. N. Cohen, for resp’ts.
   Van Brunt, P. J.

It is exceedingly difficult to determine what the precise facts are from an examination of the papers submitted upon this appeal. The complaint and affidavits upon the part of the plaintiff certain allegations as of the personal knowledge of the party verifying the same of which it is apparent that such party could not have had such knowledge. The affidavits also contain allegations of conclusions drawn from letters which are not produced, which method of allegation has been often enough condemned. The affidavits and answer of the defendants .are subject largely to the same criticism. What the true facts are in reference to the claims of the two parties to this action can only be established upon the trial of the issues involved, when .assertions without knowledge can be sifted from the case, and conclusions reached based upon legal testimony.

The main facts in reference to which there seems to be sufficiency of legal proof are that the plaintiffs formed part of a combination of clothing manufacturers, having for its ostensible object protection from unjust claims upon the part of their operatives,, with a secret purpose to break down, if possible) any organization made by operatives for the purpose of advancing wages and protecting themselves in their employment. The defendant, upon the other hand, is a combination of operatives associated together for the purpose of protection against the exactions of employers, the advancement of their wages and the compelling of employment of only those persons who belong to their association. ¡Naturally, the, interests and purposes of these two associations lead to contest and strife. I know of no law which prevents combinations either for the assertion of rights or protection against wrongs, as long as the acts of such associates do not infringe upon the provisions of law.

Various differences had arisen between the plaintiff and the defendants ; negotiations were had ; claims of bad faith upon both sides were advanced, and the result was the issuance of circulars by the defendants, some time prior to the commencement of this. action, to tradesmen in other cities,.complaining of their treatment by the plaintiffs and others, and substantially asking that they discontinue trading with them as long as this condition of affairs existed. And, finally, in March, 1893, the clothing manufacturers adopted a resolution (claiming bad faith upon the part of the operatives and that a strike had been ordered in the shop of one of the members of the association), that unless the operatives receded from their position, all persons in their employ belonging to the association of operatives should be discharged.

An action was subsequently commenced by the members of the Clothing Manufacturers’ Association collectively against the defendants for the relief prayed for in this action, which was denied, and a motion made for an injunction upon the ground of misjoinder of parties. Thereupon, in April, this action was commenced, and a motion for an injunction argued in June and decided in ¡November.

I fail to see how the injunction m this action can be sustained. There is no proof of any acts of violence upon the part of the defendants, or of any injury to property, or of any threat or intimidation. At best the circulars were but one of the instruments used by the defendants in their contest with the association of which the plamt'ffs were members. It was a pursuing of precisely the same course against the Manufacturers’ Association as the Manufacturers’ Association were urging against them. The Manufacturers’ Association claimed the right tha't their members should discharge from their employ all persons connected with the defendants’ association unless they receded from certain demands made upon one of their members. The defendants notified persons engaged in the trade of the-controversies which were existing and virtually requested such persons not to deal with the plaintiff’s firm unless such differences could be adjusted. I fail to see that there is any infringement of any provisions of law in the issuance of such a circular.

It is further to be observed tnat at the time of the argument of this motion and subsequent to the beginning of the action it would appear that the differences between the plaintiffs and the defendants had been adjusted, and an agreement entered into; and there-is no proof that any of the circulars affecting the plaintiff's firm were issued by the defendants for some time prior to the commencement of this action; and the intention to issue such circular is expressly denied. It is true that in one of the affidavits reads upon the part of the plaintiffs it is said that certain circulars were distributed through the mails as late as the 27th of May, 1893. But it is not claimed that any of these circulars were issued in respect to the plaintiff’s firm; nor is there any legal evidence that any such circulars were distributed at all. It is at most hearsay, and there is no reason whatever given for the failure to produce the affidavit of some person who had personal knowledge of the facts. And, as already observed, this seems to be a feature which characterizes all the papers upon this application.

It seem to me obvious that the clothing manufacturers had the right to lock out all operatives connected with the defendant’s association because of demands which they considered unjust made by the defendant upon one of their number and that the defendants had an equal right to endeavor to persuade those who had been accustomed to deal with members of the manufacturers’ association to discontinue' their trade.

It is a familiar principle in equity that the plaintiff must come into court with clean hands. Under the circumstances disclosed by the papers in this case, if the defendants were "guilty of any violation of law the plaintiffs were certainly equally implicated; and under this condition of affairs it is difficult to see how they would have the right to the intervention of a court of equity. In dealing with questions of this nature, the court should be studious to see that the rights of all parties are protected; and that the forms of law should not be permitted to be used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist

Upon the whole case, therefore, I am of the opinion that the injunction should not have been granted, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett, J., concurs.

O’Brijim, J.

(concurring.)—I concur in the result. The assertion of a right or the attempt to redress a wrong on the part of either employer or employe is legal and proper. When the means employed, however, are unlawful, the courts will intervene.

If the plaintiffs here can show that, while legally asserting their rights as employers, their business has been unlawfully interfered with by the defendants to an extent entailing grievous and irreparable injury, then I think there would be presented a ease wherein the court could by injunction restrain the unlawful means employed. From the affidavits used upon the motion, I do- not think that either of these propositions sufficiently appears to justify an injunction during the pendency of the action./ 'That the plaintiffs were entirely without fault is by no meaps made evident, nor at the time the injunction was granted was the threatened injury serious. The defendants having denied under oath any intention to issue any more circulars, and none having been issued since those complained of in the prior action, there was little, if any, necessity for a preliminary injunction, and no injustice would have resulted if the questions at issue had been re-, served until the trial.

Without expressing an opinion, therefore, as to whether, upon the facts here alleged, an injunction could or could not issue, I am of opinion that upon the evidence on which the motion was made the preliminary injunction should not have been granted, and I concur, therefore, in the reversal.  