
    Solomon Davis, as Treasurer, Appellant, v. Michael Bonn, Respondent.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Contract — Agreement with trade union.
    Defendant entered into a contract with a trade union, by which he agreed to employ none but members of such union in good standing, and it agreed to furnish him with a sufficient number of workingmen on demand. Subsequently defendant discharged one of the workmen for not doing his work properly, and thereupon the union called away all his employees and refused to allow them to return, unless he reinstated the one who had been discharged, which defendant refused to do, and thereafter employed other workmen, who were not members of the union. In an action for breach of the contract, held, that defendant’s agreement did not require him to retain all the workmen furnished by the union and to discharge none; that the discharge of such workmen was not a breach of the contract; that the withdrawal of all the workmen was a breach of the contract on the part of "the union, and that it could not thereafter hold the defendant to it.
    Davis v. Bonn, 13 Mise. 331, affirmed.
    ■ Appeal by plaintiff from an order of the City Court, General Term, reversing a judgment in his favor for $509.63, entered upon the direction of a verdict, and ordering a new trial.
    The action was upon a bond for $400 given by defendant to plaintiff, conditional for the carrying out of a contract between the parties, by which defendant covenanted to employ only members of the plaintiff’s association.
    Fromme Bros., for appellant.
    Jacob Manheim, for respondent.
   Daly, P. J.

The agreement between the defendant, a contracting tailor,. and the United Brotherhood of Tailors, provided that the former would employ none but members of the brotherhood in good standing, and that the brotherhood should furnish him, upon demand, a sufficient number of workingmen, members of the corporation. The other provisions related to. hours of labor and pay, the reinstatement of members who were employees before the date of the contract, and-the furnishing by the defendant of a bond in $400 for the faithful performance of. his contract, and providing that in case of a breach thereof that sum was to be forfeited to the, corporation as fixed and liquidated damages. . .

A little over a month after the contract was made, the defendant discharged one of his employees, named Greenberg, a presser, a member of the brotherhood, for not doing his work properly, as alleged. Greenberg thereupon tried to induce the other workmen to - strike, but was unsuccessful, and left. The same day the walking delegate of the brotherhood arrived and inquired into the trouble and then called away all the employees from the shop to a meeting to ascertain the facts, promising to return them in half an hour. A few hours later a committee from the brotherhood waited upon defendant and offered to send back all the hánds if defendant would take back Greenberg and keep him until Friday. This was declined. Defendant offered to pay a week’s wages to Greenberg if the union would send another, presser, but that was refused, and plaintiff declined to permit the other men to return because defendant refused to re-employ Greenberg. Defendant, subsequently employed other workmen not members of the union, and action Was thereupon commenced upon the bond. • ■ ¡

It appears that, while the defendant did employ persons who were not of the ■ brotherhood, it was only after the latter had withdrawn their members from his shop upon his discharging Greenberg and had refused to permit them to return unless he would take Greenberg back. The breach of the contract was on the part of the brotherhood in withdrawing their men. Hothing in the agreement conferred that power. • When Green-berg was discharged, the defendant was bound to ask the union for a presser if he desired to have one. . Whether the union would be justified in insisting then upon his taking back Green-berg and refusing to substitute another in his place is a question with which we have now nothing-to do, for the union did not wait for his action in that regard, but withdrew all the employees whom he was willing to retain. At the time they were withdrawn, the defendant had committed no breach of his contract, for he had not then employed any one who was not a member of the brotherhood. He had not agreed that he would retain all who were sent and discharge none. He had agreed to employ none but members; and this agreement was not broken by the discharge of a member. The withdrawal of the men by the union on the other hand was a direct violation of their agreement to furnish all the men he required. Having first broken the agreement, they could not hold the defendant to it. It was terminated and he was at liberty to employ other workmen without liability upon his bond, which fell with the contract.

Order affirmed and judgment absolute ordered on the stipulation, with costs. "

MoAdam and Bisohoff, JJ., concur.

Order affirmed and judgment absolute for defendant upon stipulation, with costs. ~  