source: Caselaw Access Project

author: Desmond, J. Conway, J.

license: Public Domain

text:
    Harry Martin, Appellant, v. Joseph Curran et al., Individually and as Officers of National Maritime Union of America, Constituting the Editorial Board of Said Union, et al., Respondents.
    Argued May 24, 1951;
    decided October 18, 1951.

      Samuel Lawrence Brennglass, Morris Alfred Vogel and Bernard Fremont for appellant.
    I. A union is liable for defamatory matter published in its official organ in the regular course of its business, by its top officers acting in the course and within the scope of their employment and authority. Express allegation that the libel was authorized or ratified by the membership is unnecessary. (Kirkman v. Westchester Newspapers, Inc., 287 N. Y. 373; National Protective Assn. v. Cumming, 170 N. Y. 315; United Mine Workers v. Coronado Coal Co., 259 U. S. 344; United States v. White, 322 U. S. 694; United States v. United Mine Workers, 330 U. S. 258; United Mine Workers v. United States, 177 F. 2d 29, 338 U. S. 871; Busby v. Electric Utilities Employees Union, 147 F. 2d 865; Ostrom v. Greene, 161 N. Y. 353; Crane v. Bennett, 177 N. Y. 106; Van Aernam v. Bleistein, 102 N. Y. 355; Pandolfo v. Bank of Benson, 273 F. 48; National Variety Artists v. Mosconi, 169 Misc. 982; Glauber v. Patof, 294 N. Y. 583.) II. Section 876-a of the Civil Practice Act is no bar to the maintenance of this action. (Lubliner v. Reinlib, 184 Misc. 472; Van Arsdale v. Fitzgerald, 89 N. Y. S. 2d 535, 276 App. Div. 826, 300 N. Y. 737; Opera on Tour, Inc. v. Weber, 285 N. Y. 348, 286 N. Y. 565, 287 N. Y. 649, 314 U. S. 615; American Guild of Musical Artists v. Petrillo, 286 N. Y. 226; Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union, 288 N. Y. 188; London Character Shoe Corp. v. Davis, 263 App. Div. 865.) III. Paragraphs 13 and 15 of the complaint are relevant and material allegations. It was error to strike them out. (Van Arsdale v. Time, Inc., 35 N. Y. S. 2d 951, 265 App. Div. 919; Solomon v. La Guardia, 267 App. Div. 435; Ross Industries Corp. v. Bentley, 268 App. Div. 897; Bingham v. Gaynor, 135 App. Div. 426; Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239; Fry v. Bennett, 28 N. Y. 324.)

      Sidney Dickstein, Herman E. Cooper, H. Howard Ostrin and Samuel Leigh for Joseph Curran and others, respondents.
    I. The complaint fails to state a cause of action against National Maritime Union and against defendants Curran and Stone in their representative capacities as officials of NMU. II. The complaint fails to allege that the membership of NMU either authorized, participated in or ratified the alleged libelous statements, or that there was fraud or bad faith on the part of the membership. (Friedman & Co. v. Amalgamated Clothing Workers of America, 115 Misc. 44; Mazurajtis v. Maknawyce, 93 Misc. 337; Tannenbaum v. Hofbauer, 142 Misc. 120.) III. A voluntary unincorporated, nonprofit association may not be held liable through the individual acts of its officers in the absence of pleading and proof of the liability of the membership as a whole. (Lubliner v. Reinlib, 184 Misc. 472; Lloyd v. Sloan, 259 App. Div. 615; McCabe v. Goodfellow, 133 N. Y. 89; Schouten v. Alpine, 215 N. Y. 225; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115; Browne v. Hibbets, 290 N. Y. 459; Shapiro v. Gehlman, 244 App. Div. 238; Blek v. Wilson, 262 N. Y. 253; Ostrom v. Greene, 161 N. Y. 353; Lightbourn v. Walsh, 97 App. Div. 187.) IV. Appellant has urged no cogent reasons for the overruling of prior decisions. V. The alleged libel arises out of a labor dispute within the meaning of subdivision 6 and paragraphs (a) and (c) of subdivision 10 of section 876-a of the Civil Practice Act. (Lubliner v. Reinlib, 184 Misc. 472.) VI. The allegations contained in paragraphs 13 and 15 of the complaint were properly stricken as irrelevant and prejudicial. (Mencher v. Chesley, 297 N. Y. 94; Dinwiddie v. Rochester News Corp., 132 Misc. 876; Burnham v. Eornaday, 130 Misc. 207.)

      William L. Standard and Edward J. Malament for Ferdinand C. Smith and others, respondents.
   Desmond, J.

By its certified question the Appellate Division has asked us to decide whether that court acted correctly in dismissing this complaint, for insufficiency, as against defendants-respondents Curran, Smith, Stone, Myers, McKenzie and Lawrenson, in their representative capacities as officers of the National Maritime Union. The suit, which is at law for damages on account of a libel.published in the union’s official newspaper, is, by the Appellate Division’s order, allowed to stand as against those same defendants, individuálly. The Appellate Division’s reason for dismissing it as to the officers as such, was that “ The allegations of the complaint are insufficient to show that the libel complained of was authorized or ratified by the members of the union, an unincorporated association ” (273 App. Div. 980), citing McCabe v. Goodfellow (133 N. Y. 89); Schouten v. Alpine (215 N. Y. 225) and Lightbourn v. Walsh (97 App. Div. 187). We agree that those cases, and many others, which apply section 13 of the New York General Associations Law, make impossible the maintenance of this action against these defendants as officers of the union, since there is in this complaint no allegation that the individual members of the union authorized or ratified the tort complained of.

The complaint does say that the newspaper is the union’s official organ, that it has a circulation of about 125,000 copies, that it is published to accomplish the union’s purposes by these defendants who have been constituted by the union as its editorial board, and that the defamatory articles concerning plaintiff were written by and under the directions of that board. Those averments, however, fall far short of asserting that the' union members themselves authorized or ratified the particular libels. Indeed, plaintiff does not claim that his complaint charges authorization or ratification. The Appellate Division gave plaintiff permission to serve an amended complaint to allege membership participation in the publication of the libel ” but no such amended pleading was forthcoming.

Much of appellant’s brief is given over to the policy argument that large associations like the National Maritime Union should be held accountable for defamations appearing in their widely circulated periodicals. The rule to be preferred, says appellant, is that of Pandolfo v. Bank of Benson (273 F. 48), which held such a group suable for libel. But such considerations of policy cannot be allowed to control our decision when, as here, we are under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.

A voluntary, unincorporated membership association is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members (Ostrom v. Greene, 161 N. Y. 353, 361; see Niven v. Spickerman & Stever, 12 Johns. 401). No agency of one member for another is implied (McCabe v. Goodfellow, 133 N. Y. 89, 95, supra). “ A part of the members of a voluntary organization cannot bind the others without their consent before the act which it is claimed binds them is done, or they, with full knowledge of the facts, ratify and adopt it ” (Sizer v. Daniels, 66 Barb. 426, 432-433). So, until the passage of the statutes which were the precursors of article 3 of the present General Associations Law, all the meim bers of such a group were necessary parties defendant in any suit on an alleged association liability, and could not be sued through their officers (Van Aernam v. Bleistein, 102 N. Y. 355, 358). The privilege of naming as defendants, and serving, the officers only, was first conferred by statutes in 1849 (ch. 258) and 1851 (ch. 455). That statutory authorization has found its way, through the old Code of Civil Procedure, into section 13 of our present General Associations Law, which provides that: “ An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.”

That privilege was conferred by the Legislature on plaintiffs for their convenience ” (McCabe v. Goodfellow, supra, p. 92), and created no new substantive right or liability (see Tibbetts v. Blood, 21 Barb. 650; Corning v. Greene, 23 Barb. 33, affd. 26 N. Y. 472, n.). The liability to be enforced in any such suit, in which association officers are named as representative defendants, is still that of the individual members as individuals, and so the cause of action has to be one “ for or upon which the plaintiff may maintain such an action * * * against all the associates, by reason of their 6 * * liability therefor, either jointly or severally ” (General Associations Law, § 13). A plaintiff u cannot, in any case, maintain such an action against the officer, unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the associates by reason of their liability therefor, either jointly or severally ” wrote this court in McCabe v. Goodfellow (p. 92), the leading case, and the line of consistent decisions to that effect has been unbroken from McCabe v. Goodfellow to Glauber v. Patof (294 N. Y. 583). The line includes not only contract but tort cases (Schouten v. Alpine, supra; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115, 123; Havens v. King, 221 App. Div. 475, affd. sub nom. Havens v. Dodge, 250 N. Y. 617). Indeed, this court cited McCabe v. Goodfellow, a contract case, as its authority for holding, in one of those tort cases, that the claim had to be one ‘ ‘ for which an action might be maintained against the thirty thousand members of the United Association ” (Schouten v. Alpine, 215 N. Y. 225, 232, supra). And in Havens v. King (supra) the Appellate Division said that “ in the absence of bad faith the members of the association cannot be held liable in damages as joint tort feasors ” (p. 482, emphasis supplied).

So, for better or worse, wisely or otherwise, the Legislature has limited such suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven. Despite procedural changes, substantive liability in such cases is still, as it was at common law, “ that of the members severally ” (Sperry Products, Inc., v. Association of Amer. R. R., 132 F. 2d 408, 410, certiorari denied 319 U. S. 744). In the kind of association now under consideration, only those members are liable who expressly or impliedly with full knowledge authorize or ratify the specific acts in question ” (Wrightington on Unincorporated Associations and Business Trusts, § 64).

It may seem anomalous, but it is not otherwise important for our purposes, that under section 16 of the General Associations Law, this plaintiff, if he could serve a sufficient complaint against these officers and should thereafter get judgment but fail to collect it from the association’s funds, could bring another suit for the same tort against the members themselves, to reach their separate assets, as if the first action had not been brought ”. In other words, he would have to plead and prove, all over again, the members’ own liability (see Witherhead v. Allen, 3 Keyes 562). But, anomalous or not, such is the law, and this court does not revise statutes, in an effort to eliminate seeming injustices, or to bring the law into accord with modern fact. Whatever reasons be pressed on us for such changes, the power to change is not ours. It is for the Legislature to decide whether or not to overhaul these settled rules, after hearing both sides, and after considering the interests of the general public as well as those of the innumerable members of these associations.

Nothing in Kirkman v. Westchester Newspapers, Inc. (287 N. Y. 373) controls our decision here. There we were dealing with a libel suit brought, pursuant to section 12 of the General Associations Law, on behalf of union members, by their officers. Finding in the complaint allegations justifying the conclusion that the particular union’s reputation was “ the common property of its members as such ” (p. 380), we held that there was sufficient compliance with the requirements of section 12, that the cause of action be one upon which “ all the associates ” could sue “ by reason of their interest or ownership therein ”.

The other part of the question certified to us by the Appellate Division has to do with the striking from the complaint of paragraphs 13 and 15. That was a discretionary matter, and we see no abuse of discretion, so we cannot interfere.

The order should be affirmed, with costs, and the certified question answered in the affirmative.

Conway, J.

(dissenting). This is a libel action. Plaintiff, who is president of the National Organization of Masters, Mates and Pilots of America, affiliated with the American Federation of Labor, alleges that he was libeled in articles in The Pilot the official weekly newspaper published by National Maritime Union, affiliated with the Congress of Industrial Organizations (C.I.O.), an unincorporated association. Plaintiff joined as defendants officers of the National Maritime Union (hereinafter called NMU) in their individual capacities and in their representative capacities as officers of NMU and as those constituting the editorial board of The Pilot who published it. He also joined as defendants the editor of The Pilot (who was not an officer of NMU) and the corporation which printed that newspaper.

The plaintiff seeks judgment not only against the defendants individually but also a judgment pursuant to section 13 of the General Associations Law which authorizes actions against an unincorporated association in the name of its president or treasurer. Two of the defendants herein are the president and treasurer of NMU.

After the service of a summons and complaint, the defendants moved for an order (1) pursuant to rule 106 of the Civil Practice Act, dismissing the complaint as insufficient in law, and (2) for alternative relief, pursuant to rule 103, to strike out paragraphs 10 ”, “ 13 ” and 15 ” of the complaint. By moving under rule 106, the defendants admit every material allegation of the complaint, and also every fact which can fairly and legitimately be drawn therefrom. (See Lamb v. Cheney & Son, 227 N. Y. 418, 420.) They must be taken as true. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198, 201; Locke v. Pembroke, 280 N. Y. 430, 432; Dyer v. Broadway Central Bank, 252 N. Y. 430, 433.) Two bases were advanced for the first branch of the motion (a) that plaintiff’s failure to allege expressly that the membership of NMU either authorised, participated in or ratified the defamatory statements constituted a fatal defect; and (b) that the action was in effect a labor dispute within the purview of section 876-a of the Civil Practice Act.

Special Term (Swezey, J.), denied the motion except to strike out paragraph “ 10 ”. On appeal the Appellate Division, Second Department, by a divided court, reversed and granted the motion to dismiss the complaint as against the officers in their representative capacities and granted the motion to strike out paragraphs “ 13 ” and “ 15 ” against the remaining defendants. Leave to serve an amended complaint was granted. The Appellate Division has granted leave to appeal to this court on a certified question reading as follows: 11 Was the order of this court granting the motion to dismiss the complaint as against the officers of the National Maritime Union in their representative capacities and granting the motion to strike out paragraphs 13 and 15 of the complaint as against the other defendants, properly made? ”

There is no question raised on this appeal as to the defamatory nature of the articles published in The Pilot.

Section 13 of the General Associations Law reads as follows:

§ 13. Action or proceeding against unincorporated association. An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership, therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.”

At the outset we may say that we cannot escape the conclusion that the publisher of a periodical, be it an individual, a corporation or the associates of an unincorporated group or association of members, is responsible for libelous matter published therein.

The first eight paragraphs of the complaint refer to the plaintiff herein, his seafaring career from seaman to ship’s captain, and his position as president of his union, the National Organization of Masters, Mates and Pilots of America (A. F. of L.) and the purposes and functions of that organization. Paragraph 1 outlines the career of plaintiff and, since it is succinct, we quote it in full: “ 1. That the plaintiff is a citizen of the United States, fifty years of age; that he was born in Cleveland, Ohio, and there received a public school education, and at the age of thirteen years, he secured employment on a sailing ship, and ever since has followed the call of the sea, working his way up in his chosen profession and occupation until he attained the rank of Master, and for about the past twenty-three (23) years he has held a Master’s license; he has sailed all the seas of the globe, on all kinds of vessels, both as mate and as captain. ”

The complaint with reference to the defendants alleges in paragraph 9: “ The defendant Joseph Curran is the President, defendant Ferdinand C. Smith is the Secretary, defendant M. Hedley Stone is the Treasurer, and defendants Frederick H. Myers, Howard McKenzie and Jack Lawrenson, respectively, are Vice-Presidents of ‘ National Maritime Union of America ’, an unincorporated association of individuals ® It then alleges that the personnel of NMU consists almost entirely of unlicensed seafaring personnel in contrast to the membership of plaintiff’s union, whose members direct and control such personnel as well as the ships. Paragraph 10 of the complaint, which was stricken out by Special Term, charged at some length that the defendant union was organized on a communist pattern with the aid of communist organizations and groups sympathetic to communist doctrine or secretly allied with communists.

Paragraph 11 reads as follows: “ 11. That among other means of attaining its purposes, the above stated National Maritime Union of America, publishes a weekly newspaper owned by it, called ‘ The Pilot ’, of which at all the times hereinafter mentioned, the defendant Lowell Chamberlain was and is, and the other defendants above named were and still do comprise its editorial board and direct and control its policies and contents; tnat said newspaper is of general circulation throughout the United States and in many places abroad, and ostensibly is published in the City and State of New York, sold at domestic subscription rates of $2.50 by mail, $3.00 in Canada, $4.00 foreign and the same is entered as second class matter at the Post Office at New York and is believed to have an approximate circulation of 125,000.” (Emphasis supplied.) Under the United States Code (tit. 39, §§ 229-233), there is permitted the entry, as second-class matter at the post office, periodical publications, “by or under the auspices of * * * trades-unions ” (§ 229) provided such a publication “ shall be originated and published to further the objects and purposes of such # * # trades-unions # * *.” (§ 229.) That section (§ 229) further provides: “ The office of publication of any such periodical publication shall be fixed by the association ox body by which it is published, or by its executive board, and such publication shall be printed at such place and entered at the nearest post office thereto. ’ ’ An affidavit prescribed by the Postmaster General must be taken by each publisher of any newspaper or periodical or publication sent through the mails with statements therein prescribed by section 231. Thus the granting of the privilege of entering The Pilot, the weekly publication of NMU, was obtained from the United States Government by NMU only because NMU published The Pilot to further the “ objects and purposes ” of NMU as alleged in the complaint.

Paragraph 12 alleges that the articles that were published in The Pilot about the plaintiff were written by and under the direction and control of the above-mentioned editorial board.

Paragraph 16 of the complaint alleges that on May 3, 1946, “ the defendants Joseph Curran, Ferdinand C. Smith, M. Hedley Stone, Frederick H. Myers, Howard McKenzie and Jack Lawrenson, as the National officers of the National Maritime Union of America, and as the editorial board of the aforesaid newspaper, and the defendant Lowell Chamberlain as the' editor and the defendant Publications Printers Corp. as the printers and publishers, maliciously composed, printed and published in the said newspaper ‘The Pilot ’ a certain article, containing the false and defamatory matter ” which we quote in part: “ The whole drive of monopoly capital is directed against the rising democracies in Europe, the liberation movements in the colonial countries and for war with the Soviet Union. The people want peace and a decent living standard. That is why Big Business has so viciously attacked such unions as the electrical, steel, etc. Monopolists, recognizing the militancy of the marine unions and the strategic importance of marine in war, are united with the shipowners to fight and try to smash us, break the marine unions. They are enlisting as strike breakers the so-called leaders (meaning thereby among others the above named plaintiff) of the AFL marine unions, such as the SIU-SUP, ILA and MMP (meaning thereby the National Organization of Masters, Mates and Pilots of America). These ‘ leaders ’ (meaning thereby among others the above named plaintiff together with such elements as Lewis, Woll, Dubinsky) will fight us (meaning thereby to convey that the plaintiff among others, was in league with the employers or ship owners and that he and others had disloyally joined with such Ship Owners in fraud of the National Organization of Masters, Mates and Pilots to frustrate the free will of such members in determining their policy in respect to the proposed strike).”

Paragraph 17 alleges that the article was maliciously and falsely published with an intent to injure plaintiff in his profession and in his position as an officer in the national and local union organizations of the National Organization of Masters, Mates and Pilots and to cause it to be believed that he was a strikebreaker and a traitor to his organization and dishonest and disloyal as a leader of marine workers. Paragraph 18 of the complaint alleges that the defamatory article had injured his good name and credit as a maritime labor leader and as an officer of his own labor unions.

The complaint then repeats and realleges paragraphs 1 to 15 of the complaint and alleges a second cause of action, based upon a publication in The Pilot on May 10, 1946, of another article purportedly signed by Joseph Curran, as president. The article charges the officials of the plaintiff’s union and other union officials with not speaking for the rank and file when they said that the membership did not want the unity program. The article then continued: ‘ ‘ They know that the propaganda being spread by the officials of the Masters, Mates and Pilots, Captain Martin (meaning this plaintiff) and Captain Mays, is the same old line that the shipowners have been using for years to divide seamen and officers (intending thereby to imply that the plaintiff has for years been disloyal to organized marine labor and has been in league with the shipowners to disseminate false information to the seamen).” (Italics in original.)

As analyzed, the complaint, except for the defamatory character of the articles published, alleges that (a) the defendant union, the NMU, in attaining the purposes for which it was organized, publishes a weekly newspaper called The Pilot, (b) that the national officers of the union and the editor comprise the editorial board of the paper, (c) that the editorial board directs and controls the paper’s policies and contents, (d) that the articles claimed to be libelous were written by and under the direction and control ” of the editorial board and were thus published by the top officials of NMU acting in the course of and within the scope of their employment, and (e) that the officers of the union published the statements “ as the National officers of the National Maritime Union ”, as well as in their capacity as “ the editorial board ” of The Pilot, the official publication of NMU.

The principal argument advanced against the sufficiency of the plaintiff’s complaint is that it fails to allege expressly that the members of NMU ever authorized, participated in or ratified the alleged libelous statements. It was always fundamental in the jurisprudence of England and America that the common law was flexible, self-developing and all embracing so that all actual situations could be adjudicated. (See Oppenheim v. Kridel, 236 N. Y. 156, 164; III The History of Assumpsit in Select Essays in Anglo-American Legal History, pp. 259, 297, 298.) It is ancient common law, which has been stated in our New York cases for nearly one and one-half centuries, that the owner and publisher of a newspaper is responsible for all that appears in its columns although the publications may have been made without knowledge or authorization or ratification, or even contrary to the directions of, the owner or publisher. (Andres v. Wells, 7 Johns. 260, 262, 263 [1810]; Huff v. Bennett, 4 Sandf. 120, 130 [1850]; Crane v. Bennett, 177 N. Y. 106, 109; Townshend on Slander and Libel [4th ed.], § 123; Odgers on Libel and Slander [5th ed.], pp. 168-171; Seelman on Law of Libel and Slander, par. 143, p. 127.) That such rule applies as a matter of libel common law to a group of men who associate themselves together in the creation, organization and publication of a periodical newspaper to attain the purposes and aims of their association has not been questioned in any case we have found or which has been called to our attention. We have freedom of speech and freedom of the press in our State and nation but only on the condition that while one may speck freely and publish in the press freely, one must respond in damages by way of restitution if one abuses the privilege by slandering or libeling another. As is well said in the Introductory Note (1937) to the American Law Institute’s Restatement of the Law of Restitution (pp. 522-523): “ Actions of tort are * * * based primarily upon wrongdoing and ordinarily, through the payment of money, compensate the injured person for the harm suffered by him as a result of the wrongful conduct, irrespective of the receipt of anything by the defendant.” To derogate from the common law the Legislature must declare its purpose so to do directly and substantively and then such statement must be strictly construed. It is clear that the respondents here overlook the fact that this is a common-law action for libel governed by common-law libel law. Section 13 of the General Associations Law is an administrative and adjective statute. It was enacted to convenience a plaintiff, such as we have here, by enabling him to sue and more promptly reach the property of the association for the satisfaction of any judgment he may recover, without naming as defendants hundreds or even thousands of members of an association — in this instance no doubt employed on ships scattered about the world. He is not bound to sue the officer, for section 17 provides that he may bring action against all the members of the association. (McCabe v. Goodfellow, 133 N. Y. 89, 92.) At common law an unincorporated association could neither sue nor be sued in its own name. It had to sue in the names of all the associates as parties plaintiff or when sued, all the members had to be made parties defendant. (McMahon v. Rauhr, 47 N. Y. 67, 71.) The members could neither sue nor be sued through their officers. (Van Aernam v. Bleistein, 102 N. Y. 355, 358.) Then were enacted statutes commencing with chapter 258 of the Laws of 1849 and chapter 455 of the Laws of 1851 which eventuated as matters of convenience and expediency in General Associations Law. That was the purpose of section 13. It was not intended to affect or derogate from the common law of tort, had no such effect and a court is not free to hold that there was such derogation accomplished by indirection and without expressed intention. Whatever it will be necessary for the plaintiff to do in a subsequent action against the individual members of the association brought pursuant to section 16 of the General Associations Law — if we are to unrealistically conjecture that an execution issued against property belonging to the association NMU here, including The Pilot, should be returned unsatisfied in whole or in part — need not detain us. This motion involves only the construction of a pleading and a determination whether anyone may be brought to the bar of justice for publishing libels affecting the plaintiff in a newspaper alleged in paragraph 11 of the complaint to be owned and published by NMU, an unincorporated association. It is clear that plaintiff is seeking to enforce a joint or several liability, if the proof establishes the latter, of the members of the association.

The first question for our determination, therefore, is: Who owns and publishes The Pilot 1 Is it the members of the unincorporated association NMU under New York State law or the trades-union NMU under United States law? We have the admitted allegation of the complaint that NMU is the owner and publisher of The Pilot and that it publishes it through the work of an editorial board composed of its national officers for the attainment of the purposes for which NMU was organized. We also have the admitted allegation that the NMU has represented and held itself out to be a trades-union under United States law so as to qualify, and so to obtain permission as a trades-union to publish the newspaper The Pilot with preferential mailing privileges under the Post Office Department of our Federal Government. (U. S. Code, tit. 39, § 229.)

So we shall divide our inquiry into two parts with two subdivisions of the first part.

1-a. Are the members of NMU as a New York State unincorporated association the owners and publishers of The Pilot and responsible as such? The Legislature has provided that an unincorporated association may own personal or real property (General Associations Law, §§ 2, 6, 8,15). Our court originally and until 1942 when we decided Kirkman v. Westchester Newspapers, Inc. (287 N. Y. 373) had held that an unincorporated association was not a legal entity separate from the persons who composed it (except as it was recognized under Federal statutes and decisions as a trades-union) and that it had no distinctive existence independent of its members. If that be so, then the members of NMU as a New York State unincorporated association are jointly the owners and publishers of The Pilot and are responsible for libelous articles jointly, even though unauthorized, and, therefore, no allegation of authorization, participation or ratification is necessary in the complaint and, since they are sued as permitted and provided in section 13 of the General Associations Law, the complaint states a good cause of action. The following is quoted by Mr. Seelman from Andres v. Wells (7 Johns. 260, 263, supra) in his Law of Libel and Slander and well phrases the rule: “ But where a man is the owner of a paper and gives over the conducting of it to another, he thereby constitutes him his general agent; and is answerable for all his acts done in the execution of that trust, whether within or beyond the intention of the principal. * * * It would be too much to say, that any man might with impunity own and sustain a public newspaper, without any responsibility for the libels with which it might abound.”

1-b. If NMU be a juristic entity under our State statute in accord with our decision in Kirkman v. Westchester Newspapers, Inc. (supra) then the admitted allegation of paragraph 11 of the complaint that NMU is owner and publisher makes the legal entity NMU responsible for damages for the libels published of plaintiff and it is properly sued through its president and treasurer under our decision in the Kirkman case. While the entity here is composed of seafaring men rather than electricians and the entity is sued as defendant rather than suing as plaintiff, we cannot say that those differences are sufficient to distinguish the cases so as to say that it was wise and forward-looking and realistic for us to say in the Kirkman case that for the purpose of bringing a libel action without an allegation of authorisation by the members, the unincorporated association was an entity but here it is not an entity. However, if our positian in the Kirkman case be not followed, or even abandoned, we merely go back to our position (supra) under 1-a.

If, viewing NMU solely as a New York State unincorporated association under the General Associations Law, we were to hold that neither the members of NMU nor NMU as a juristic entity is the owner and publisher of The Pilot, despite the conceded truth of paragraph 11 of the complaint that NMU is both owner and publisher, then The Pilot has no owner or publisher answerable to plaintiff who has been libeled and we must say that there is existent in our State a newspaper which is free under State law to libel men and hold them up to public obloquy with impunity and without responsibility. Such a denial of justice the common law of this State has never tolerated nor permitted and this is a common-law libel action.

2. Since NMU sought to be panoplied under United States law with the rights and privileges which attach to a trades-union and to thereby obtain preferential statutory rights as such a trades-union from the Post Office Department of our national government, it accepted the duties and responsibilities which flowed in the wake of the rights and privileges so obtained. Thus Federal statutes and decisions became applicable to NMU under this subdivision 2 of our decision. Under United Mine Workers v. Coronado Coal Co. (259 U. S. 344) it has been held that trades-unions are suable as distinct entities in tort and that the Federal statutes have changed the common-law rule of nonsuability of such associations. The Supreme Court of the United States speaking through Mr. Chief Justice Tart said (pp. 385-388): “ Undoubtedly at common law, an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members, and their liability had to be enforced against each member. Pickett v. Walsh, 192 Mass. 572; Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421; Baskins v. United Mine Workers of America, 234 S. W. 464. But the growth and necessities of these great labor organizations have brought affirmative legal recognition of their existence and usefulness and provisions for their protection, which their members have found necessary. * * * More than this, equitable procedure adapting itself to modern needs has grown to recognize the need of representation by one person of many, too numerous to sue or to be sued (Story Equity Pleadings, 8th ed., §§ 94, 97; St. Germain v. Bakery, &c., Union, 97 Wash. 282; Branson v. Industrial Workers of the World, 30 Nev. 270; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 402); and this has had its influence upon the law side of litigation, so that, out of the very necessities of the existing conditions and the utter impossibility of doing justice otherwise, the suable character of such an organization as this has come to be recognized in some jurisdictions, and many suits for and against labor unions are reported in which no question has been raised as to the right to treat them in their closely united action and functions as artificial persons capable of suing and being sued.”

Here again we have the conceded allegation of paragraph 11 of the complaint that the trades-union NMU is the owner and publisher of The Pilot and responsibility by NMU for damages by way of restitution follows for libels published in the newspaper The Pilot against plaintiff. Again the complaint states a good cause of action. Let us now turn to the Federal as well as our State court decisions respecting the responsibility of trades-unions for tort.

As noted in appellant’s brief, trades-unions, since 1902, when we decided National Protective Assn. v. Cumming (170 N. Y. 315) have played an increasingly important role in modern life. Recognized as juristic entities under both Federal and State statutes for many purposes (see United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 385-389, supra; Kirkman v. Westchester Newspapers, Inc., 287 N. Y. 373, supra; United States v. White, 322 U. S. 694, 703-704) they have frequently thousands of members and have been subjected to and paid fines and damages out of their treasuries. (International Union, United Mine Workers v. United States, 177 F. 2d 29, certiorari denied 338 U. S. 871; United States v. United Mine Workers, 330 U. S. 258.)

Trades-unions are no longer mere unincorporated associations, as that term was formerly understood. As a practical matter, it has been held that labor unions have as perpetual an existence as corporations. (United States v. White, supra, p. 701.) They are not sporadic or transitory associations projecting “spasmodic moral movements” as in the case of McCabe v. Goodfellow (133 N. Y. 89, 95 [1892], supra).

Recent decisions emphasize that the realities of present day trades-nnion organization require a recognition of its unified character. (See Kirkman v. Westchester Newspapers, Inc., supra.) We there held that a union was a legal entity to the extent necessary to permit suits for libel to be brought on behalf of the union by its officers. The defamatory articles therein charged the union’s officers with wrongdoing in the performance of the work of the association. In holding that libel suits could be brought on behalf of all the members of the union by its officers, without an allegation of authorization by the members, we pointed out that defamatory articles charging wrongdoing by the union’s officers tended to discredit the work in which all the membership have a common interest, and that the membership as a whole has the right to protect the good name and reputation of the union from libelous attacks. On the basis of our holding there that an unincorporated trades-union is an entity which may sue under section 12 of the General Associations Law for a libel published against its officers, it follows by a parity of reasoning and as a necessary corollary that under section 13, it may be sued for a libel published by it as an entity in its official publication against a union officer charging him with wrongdoing. Just as the membership as a whole in an unincorporated association has the right as plaintiff to protect the good name and reputation of its union and to act as an entity, so as an entity it must respond in damages for libel as defendant when it has published a newspaper which libels the good name and reputation of a union officer of another union whose members have the same right of protection for the good name and reputation of their union.

The United States Court of Appeals, District of Columbia, held in Busby v. Electric Utilities Employees Union (147 F. 2d 865 [1945]) that even without enabling legislation, a trades-union could sue and be sued in its common name and its treasury funds subjected to execution. After remand (in 323 U. S. 72), in which the United States Supreme Court held that the question of whether an unincorporated trades-union is without capacity to sue or be sued in its own náme, is one which must first be decided under local law, the Court of Appeals quoted at length from the testimony of the general counsel of the American Federation of Labor before the Judiciary Committee of the House of Representatives in relation to rule 17 (b) of the Rules of Civil Procedure (U. S. Code, tit. 28), authorizing suits by and against unincorporated associations in the common name. A portion of his testimony, so quoted, is as follows (pp. 866-867):

For many years there was holy horror on the part of labor organizations to the inclusion of a provision of this kind. They did not wish to be in the position of being sued, or to sue in their common name. They objected to that. That arose out of experience, just as a child burns its fingers and learns its lesson. * * *
“ ‘ * * * In the last dozen years a change has taken place in this attitude on the part of labor. We do not object, in a sense, and under proper circumstances, to being sued in our common name, or to suing in our common name. Not that we like it, but we do not object. Because the entire history of the law has changed — and the relation of labor unions to litigation has changed, and to getting into court and getting out of court. Where at one time we were defendants, and only [in] injunction cases and took our lickings quite frequently, today, in many cases we are both plaintiffs and defendants. Your entire enforcement of the Wagner Act is based upon the vehicle of injunction, and must be used by labor unions; the enforcement of the National Labor Relations Board Act is based upon injunctive decrees, and in those cases where we disagree with employers we have to go before the appellate court and ask for injunctive decrees. You will notice that in the proposed wage-and-hour bill enforcement is by injunctive decree.
“ ‘ Since 1932, or, since the passage of the Norris-LaGruardia Act [29 U. S. C. A. § 101 et seq.] our attitude toward this suability has changed entirely. Today we have not the fear that we did have in the past. * * * So we are not opposed to being sued in proper cases, because we too have to sue in proper cases to obtain our rights.
‘ ‘ ‘ Incidentally, it was stated by someone here yesterday that most States do have laws that permit labor organizations to be sued in their proper names or common names, and also to bring suits in law. That is so. We have had, as a result of disputes between the C. I. 0. and the A. F. of L., to go into court and seek relief in respect to the funds in one organization or another. We can only do so properly in our own common name. So today labor is not objecting to being sued in its common name.’ ”

Later in its opinion the court said (p. 868): “It would be unthinkable that in such circumstances the union itself should not be answerable for its contracts or its torts made or inflicted by one of them in the common business.”

So the general counsel whose language was thus quoted in the Busby case (supra) was a common-law lawyer who was merely restating the principle that the common law is a living organism which moves in response to the fuller development of man and of the State and nation so as to include, in its flexibility, all changes in their surroundings, growth and interdependence. As Lord Coleridge said of those who declare the common law in Lumley v. Gye (2 El. & Bl. 216, 267), “ Judges are not necessarily to be ignorant in Court of what everybody else, and they themselves out of Court, are familiar with * *

Since this is an action in tort, the cases that deal with the contractual responsibility of membership associations are not apposite. Knowledge of the limited liability of the association’s members and the limited authority of the association’s agent in entering into the specific contract is chargeable to the third party. Nor in our opinion are the numerous cases having to do with wrongful expulsion and damages therefor to a wronged member. Those have to do with the internal affairs of the association. Those cases which have held trades-unions not liable for.the violence of individual members are analogous to cases where an employee of a corporation has gone outside of his employment and without regard to his service and, acting maliciously, has committed an assault.

The following cases, in principle, all support the view that an unincorporated union, as an entity, may be held responsible for libel. (National Variety Artists, Inc., v. Mosconi, 169 Misc. 982; Pandolfo v. Bank of Benson, 273 F. 48,50; Tonelli v. Osman, 54 N. Y. S. 2d 793; Peterson v. Cleaver, 105 Neb. 438.) In the Pandolfo case, the Circuit Court of Appeals, Ninth Circuit, in holding an unincorporated association of bankers liable for a defamatory letter published in one of its books said: ‘ ‘ The members of an unincorporated association are liable in their collective capacity for tort (5 C. J. 1369; 25 R. C. L. 67), and they are answerable for damages for libel published by their agent with their authority while the agent is acting within the scope of his employment, just as a corporation is liable under like circumstances [citations].”

Thus it matters not whether we hold that the members of NMU are the owners and publishers of The Pilot and jointly or severally liable for libelous articles published therein or whether we hold the entity the unincorporated association trades-union NMU to be publisher and owner of The Pilot with consequent responsibility for libel. In either or both views, the complaint states a cause of action.

Besides the question as to the sufficiency of the complaint against the defendant union, there has also been certified a question concerning the correctness of the order appealed from in striking out paragraphs 13 and 15 of the complaint under rule 103 of the Rules of Civil Practice as against the remaining defendants. The allegations of those paragraphs were sustained by Special Term as tending to show malice and thus constituting a basis for punitive damages. The Appellate Division reversed, without comment, and granted defendants’ motion to the extent of striking those paragraphs from the complaint as to the remaining defendants. While such a motion is not favored and allegations of a complaint will not be stricken out unless it is clear that they have no possible bearing on the subject matter of the litigation (Solomon v. LaGuardia, 267 App. Div. 435) it is also firmly established that the granting or denial of such a motion under rule 103 rests in the sound discretion of the Supreme Court. (Bata v. Bata, 302 N. Y. 213; Solomon v. La Guardia, supra; Civ. Prac. Act, § 603.) There is then no question of law presented as to this portion of the certified question unless we can say on the pleadings herein that it was an abuse of discretion as matter of law to strike out the two paragraphs in question (Bata v. Bata, supra; Civ. Prac. Act, § 603). Briefly, paragraph 13 of the complaint alleges that the defendants, in concert with one Harry Bridges and others connected with unions dominated by communistic doctrines, embarked upon a “ Unity ” program with the intention of destroying unions which were free from communist influence and to subject American commerce on the high seas to the influence of foreign powers in which communist theories prevail. In paragraph 15, the complaint alleges that the defendant union published statements calculated to arouse the jealousy of nonskilled workers against their officers and to appeal to their passions by indicating, through pictures, etc., fabulous wages for seamen if they would unite under the communist-controlled “ Unity ” program. We think the Appellate Division, within the wide limits of its permissible discretion, had the power to strike out those paragraphs and that we cannot say as a matter of law that the action was improper. Plaintiff will not be deprived of his right to punitive damages, as the pertinent allegations in paragraphs 10, 13 and 15 which tend to show malice and therefore a basis for punitive damages, may be set forth in an amended complaint. (See Colwell v. Tinker, 169 N. Y. 531, 537; American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231.) Since we cannot say as a matter of law that the Appellate Division abused its discretion, it follows that the appeal from that portion of the order which granted defendants’ motion to strike out paragraphs 13 and 15 of the complaint, must be dismissed since no decisive question of law is presented for our review. (Bata v. Bata, 302 N. Y. 213, supra; Braunworth v. Braunworth, 285 N. Y. 151, 154.) The other portion of the certified question — asking whether the dismissal of the complaint against the union officers in their representative capacities was proper — should be answered in the negative.

The NMU also takes the position that the libels which are the basis for these causes of action arose out of and concerning a labor dispute within the purview of subdivision 6 and paragraphs (a) and (c) of subdivision 10 of section 876-a of the Civil Practice Act and that subdivision 6 of that section protects the union from a suit in libel unless the complaint alleges actual authorization or ratification of the membership of the union. Subdivision 6 provides: 6. No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute (as these terms are herein defined) shall be held responsible or liable in any civil action at law or suit in equity, or in any criminal prosecution, for the unlawful acts of individual officers, members, or agents, except upon proof by the weight of evidence and without the aid of any presumptions of law or fact, of (a) the doing of such acts by persons who are officers, members or agents of any such association or organization, and (b) actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof by such association or organization.”

We have already held that the fact that parties to an action are labor officials or unions does not for that reason alone make the issue involved a 11 labor dispute ”, We settled that question in an action against an unincorporated association in American Guild of Musical Artists v. Petrillo (286 N. Y. 226, 231, supra), Loughran, J., by pointing out that unless “ the objective of the defendant-union is a lawful one, this controversy is not a ‘ labor dispute ’ in the sense of section 876-a of the Civil Practice Act * * * ”, and that therefore section 876-a was without application. We pointed out there that harm intentionally done by a labor union is actionable if not justified. Torts such as assaults, conversion, slander or libel do not constitute labor disputes in the sense of section 876-a of the Civil Practice Act. (See Busby v. Electric Utilities Employees Union, 147 F. 2d 865, 868, supra, pp. 294-296.)

In the Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union case (288 N. Y. 188) we held that the situation therein did not come within the purview of section 876-a although on the surface there was a labor dispute between rival union organizations. Justice Collins when at Special Term, in Tonelli v. Osman (54 N. Y. S. 2d 793, 794, supra) used language which seems to us applicable to this situation.

The order of the Appellate Division should be modified by reversing so much thereof as dismissed the complaint against the defendants in their representative capacities, and to that extent the order of Special Term should be affirmed, with costs to plaintiff in this court and in the Appellate Division.

The appeal from so much of the order of the Appellate Division as granted the motion to strike out paragraphs 13 and 15 of the complaint should be dismissed.

The first portion of the certified question should be answered in the negative. The second portion of the certified question is not answered.

Lotighran, Oh. J., Dye and Ftjld, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis and Froessel, JJ., concur.

Order affirmed, etc.

        Contract cases. (McCabe v. Goodfellow, 133 N. Y. 89; National Bank v. Van Derwerker, 74 N. Y. 234; Lightbourn v. Walsh, 97 App. Div. 187.)

        Wrongful expulsion. (Schouten v. Alpine, 215 N. Y. 225; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115; Browne v. Hibbets, 290 N. Y. 459; Glauber v. Patof, 294 N. Y. 583; O’Brien v. Papas, 49 N. Y. S. 2d 521; Blek v. Wilson, 262 N. Y. 253; Polin v. Kaplan, 257 N. Y. 277; Shapiro v. Gehlman, 244 App. Div. 238.)

         Assault, torts. (Osipoff v. City of New York, 286 N. Y. 422, 431-432; United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 395; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295, 304; Michaels v. Hillman, 112 Misc. 395, 412-413; cf. Mazurajtis v, Maknawyce, 93 Misc. 337; Tannenbaum v. Hofbauer, 142 Misc. 120.)


author:
      Loughran, Ch. J. Froessel, J. Dye, J.
      Fuld, J.

text:
    Goodwins, Inc., et al., Appellants, v. Frank Hagedorn, as President of Department Store & Variety Store Employees Union, Local 1115A, Retail Clerks International Association, A. F. of L., et al., Respondents, et al., Defendants.
    Argued July 11, 1951;
    decided October 18, 1951.

      J. Norman Lewis and James P. Durante for appellants.
    I. The New York State Supreme Court has jurisdiction over the subject matter of this action. It is unthinkable that plaintiff's should be denied relief by equity in their struggle against defendants’ illegal coercion. (Matter of Midwest Piping & Supply Co., 63 N. L. R. B. 1060; Matter of Standard Steel Springs Co., 80 N. L. R. B. 1082; National Labor Relations Bd. v. National Motor Bearing Co., 105 F. 2d 652; Serval Slide Fasteners v. Molfetta, 188 Misc. 787; Euclid Candy Co. of N. Y. v. Summa, 174 Misc. 19; Haber & Fink, Inc., v. “ Jones ”, 277 App. Div. 176; La Manna v. O’Grady, 278 App. Div. 77; Automobile Drivers & Demonstrators Local Union v. Cline, 339 U. S. 470; Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525; Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Bd., 336 U. S. 301.) II. Defendants should be enjoined from the commission of acts in furtherance of their unlawful conspiracy and from the commission of other tortious acts against plaintiffs. (Rozell v. Rozell, 281 N. Y. 106; Kujek v. Goldman, 150 N. Y. 176; Jacobs v. Holt, N. Y. L. J., Mar. 27, 1951, p. 1092, col. 6; Barile v. Fisher, 197 Misc. 493; Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Beardsley v. Kilmer, 236 N. Y. 80; Stuhmer & Co. v. Korman, 241 App. Div. 702, 265 N. Y. 481.) III. The right to carry on a lawful business is a property right which is entitled to protection by an injunction in the event of unlawful interference. (Rochette & Parzini Corp. v. Campo, 301 N. Y. 228; Federal Waste Paper Corp. v. Garment Center Capitol, 268 App. Div. 230; Dorchy v. Kansas, 272 U. S. 306; People v. Silverman, 278 N. Y. 670; Euclid Candy Co. v. Scida, 99 N. Y. S. 2d 817.) IV. There is no labor dispute within the meaning of section 876-a of the Civil Practice Act. (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226; Dinny & Robbins, Inc., v. Davis, 290 N. Y. 101, 319 U. S. 774; Opera on Tour, Inc., v. Weber, 285 N. Y. 348; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150; Canepa v. “ John Doe ”, 277 N. Y. 52; Nash v. Mennan, 275 App. Div. 674.)

      Max Bloom for respondents.
    I. The complaint was properly dismissed inasmuch as Special Term did not have jurisdiction over the subject matter of the action and appellants did not have legal capacity to sue. (Matter of Midwest Piping & Supply Co., 63 N. L. R. B. 1060; Pocahontas Term. Corp. v. Portland Bldg. & Constr. Trade Council, 93 F. Supp. 217; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261; Matter of Benedict [Limited Editions Club], 265 App. Div. 518; Textile Workers Union v. Amazon Cotton Mill Co., 76 F. Supp. 159; International Union of United Automobile Workers v. O’Brien, 339 U. S. 454; Ryan v. Simons, 277 App. Div. 1000, 302 N. Y. 742; Costaro v. Simons, 302 N. Y. 318; Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767; La Crosse Tel. Corp. v. Wisconsin Employment Relations Bd., 336 U. S. 18.) II. Section 876-a of the Civil Practice Act precludes issuance of the injunction here sought. (May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331; Baillis v. Fuchs, 283 N. Y. 133; Fairfield Bar & Restaurant v. Friedman, 172 Misc. 146; Bent Steel Sections, Inc., v. Doe, 170 Misc. 736; International Union of United Automobile Workers v. O’Brien, 339 U. S. 454; Matter of Levinsohn Corp. [Cloak, etc., Union], 299 N. Y. 454; Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union, 288 N. Y. 188; Stalban v. Friedman, 259 App. Div. 520; Opera on Tour, Inc., v. Weber, 285 N. Y. 348; Canepa v. “ John Doe ”, 277 N. Y. 52; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150.
   Loughran, Ch. J.

The plaintiffs are domestic corporations. We shall call them the plaintiff employers. Though three labor organizations were named as defendants, only the defendant Department Store & Variety Store Employees Union, Local 1115A, appeared and defended the action. It will be called the defendant union.

The action was commenced in the New York Supreme Court for a judgment that would enjoin picketing by the defendant union of a store of the plaintiff employers located on Fulton Street in Brooklyn. After trial before an Official Referee, the complaint was dismissed. The Appellate Division affirmed by a divided vote and the plaintiff employers then brought the case here by an appeal taken as of right.

The dismissal of the complaint was not upon the merits but went upon the ground that the New York Supreme Court lacked jurisdiction over the subject matter and that any remedy of the plaintiff employers was to be had in the Federal courts or administrative agencies. Since the complaint has been dismissed without consideration of the merits of the controversy, we assume the truth of the evidence offered by the plaintiff employers.

There is not and there has not been any strike at their Fulton Street store nor have their employees selected any union as collective bargaining agent. Indeed representation proceedings looking to certification of such an agent have been pending before the National Labor Relations Board to whose jurisdiction the plaintiff employers are subject since they are engaged in interstate commerce. Nevertheless, the defendant union is picketing the plaintiff employers’ Brooklyn store with the avowed object of forcing the plaintiff employers forthwith to recognize the defendant union as sole collective bargaining agent despite the competing claims of a rival labor organization to represent the same employees.

The picketing in question is unlawful under the law of this State. Section 17 of article I of our State Constitution says that ‘ ‘ Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” The public policy thus declared by our State Constitution has been implemented by statute. Section 703 of the New York Labor Law says: “ Employees shall have the right * * * to bargain collectively through representatives of their own choosing * * * free from interference, restraint, or coercion of employers ”. Moreover, subdivision 3 of section 704 of the same statute denounces as an unfair labor practice an employer’s attempt by any means “ To dominate or interfere with the formation, existence, or administration of any employee organization or association, agency or plan ”.

The Federal Labor Management Relations Act of 1947 contains like provisions. Section 7 thereof (U. S. Code, tit. 29, § 157) says: “ Employees shall have the right to self-organizatian * ® * to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining ”. Subdivision (a) of section 8 of the same statute (U. S. Code, tit. 29, § 158) says: “ It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (2) to dominate or interfere with the formation or administration of any labor organization ”,

In the face of the above legislation there is no denying that it would be unlawful for the plaintiff employers to yield to a demand that they recognize the defendant union instead of some rival labor organization as the exclusive collective bargaining-agent for the employees of the plaintiff employers in advance of a certification by the National Labor Eelations Board in the pending representation proceeding. Moreover, this conclusion seems to us to be fortified by a stipulation whereby, with the approval of the National Labor Eelations Board, the plaintiff employers have agreed not to commit any of the unfair labor practices that have been imputed to them by union officials.

In short, the defendant union is subjecting the plaintiff employers to economic pressure and is thereby injuring then-business without justification in law. Coercion of that kind is clearly unlawful (Dorchy v. Kansas, 272 U. S. 306, 311) and in our judgment can be enjoined by the courts of this State. Section 876-a of the New York Civil Practice Act does not bar injunctive relief in a case where, as here, no lawful labor objective is sought by the defendant union (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231; see Florsheim Shoe Store Co. v. Shoe Salesmen’s Union, 288 N. Y. 188). Furthermore, no principle of due process stands in the way of such an exercise of equity jurisdiction (Building Service Employees Int. Union v. Gazzam, 339 U. S. 532, 538-539).

Nor does the Federal Labor Management Relations Act (as we see it) disable our State courts from acting in the circumstances of this case. For one thing, the activity of the defendant union is not within any of the categories of union unfair labor practices denounced in subdivision (b) of section 8 of the Federal statute (U. S. Code, tit. 29, § 158). The provisions of the Federal statute that come closest to touching this case are contained in paragraph (4) of subdivision (b) of section 8 which says that it shall be an unfair labor practice for a labor union or its agents 11 to engage in, or to induce or encourage the employees of any employer to engage in, a strike * * * where an object thereof is: * * * (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * * *; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees ”. The picketing conducted by the defendant union does not fall within the foregoing definitions of unfair labor practices under the Federal act because, as we have already noticed, no strike is involved in this case and no union has yet been certified as exclusive collective bargaining agent for the employees in question. Thus this aspect of the case presents no question of conflict with the Federal statute. In International Union, U. A. W. A., v. Wisconsin Employment Relations Bd. (336 U. S. 245), the Supreme Court upheld an order issued by the Wisconsin Employment Relations Board requiring a union to halt its practice of calling work stoppages against an employer during working hours. In that casé, the Supreme Court said (p. 253): “ Congress made in the National Labor Relations Act no express delegation of power to the Board to permit or forbid this particular union conduct, from which an exclusion of state power could be implied. The Labor Management Relations Act declared it to be an unfair labor practice for a union to induce or engage in a strike or concerted refusal to work where an object thereof is any of certain enumerated ones. § 8 (b) (4), 61 Stat. 140, 141; 29 U. S. C. § 158 (b) (4). Nevertheless the conduct here described is not forbidden by this Act and no proceeding is authorized by which the Federal Board may deal with it in any manner.” Again, in Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Bd. (336 U. S. 301), the Supreme Court in upholding an order of the Wisconsin board with respect to an employer engaged in interstate commerce had this to say (p. 305): “In seeking to show that the Wisconsin Board had no power to make the contested orders, petitioner points first to § 10 (a) of the National Labor Relations Act * * *. It argues that the grant to the National Labor Relations Board of ‘ exclusive ’ power to prevent ‘ any unfair labor practice ’ thereby displaced State power to deal with such practices, provided of course that the practice was one affecting commerce. But this argument implies two equally untenable assumptions. One requires disregard of the parenthetical phrase ‘(listed in section 8)’; the other depends upon attaching to the section as it stands, the clause ‘ and no other agency shall have power to prevent unfair labor practices not listed in section 8.’ ”

Nor, of course, is the conduct of the defendant union a concerted activity that is protected by the Federal statute (cf. International Union of United Automobile Workers v. O’Brien, 339 U. S. 454; Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U. S. 383). For the object of the picketing is to coerce the employer into committing an act which is denounced as an employer unfair labor practice under subdivision (a) of section 8 of the act. This kind of concerted activity cannot be supposed to be entitled to protection under section 7 of the act.

Our conclusion is that the acts of the defendant union here complained of by the plaintiff employers, if established by proof (1) would constitute an actionable tort under the law of this State entitling the employer to injunctive relief; (2) are not within the provisions of the National Labor Relations Act; and (3) are not such concerted union activity as is protected thereby. Even so, in the absence of any findings establishing the right of the plaintiff employers to the relief sought in the complaint, a new trial must be ordered. Hence we remit the case for a decision on the merits.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Froessel, J.

(concurring). We are all agreed that the Labor Management Relations Act of 1947 (Taft-Hartley Act) is silent on the specific subject of stranger picketing by a labor organization as an unfair labor practice. A minority is of the opinion that because of its close relation to activities proscribed by that statute (U. S. Code, tit. 29, § 158, subd. [b]) the picketing here complained of falls within the area of proscription. Had the sponsors of the Taft-Hartley Act and the Congress so intended, surely they would have made their purpose manifest, for plain language was readily available.

In my view the Taft-Hartley Act does not deprive the Supreme Court of this State of jurisdiction of the subject matter, which is governable by the State or it is entirely ungoverned ” (International Union, U. A. W. A., v. Wisconsin Employment Relations Bd., 336 U. S. 245, 254). Accordingly, I concur with the Chief Judge for reversal and remission for decision on the merits.

Dye, J.

(dissenting). I dissent and vote for affirmance. The complaint was properly dismissed for lack of jurisdiction of the subject matter. When the employer alleged that it was engaged in interstate commerce the controversy was forthwith brought within the exclusive province of the National Labor Management Relations Act of 1947 (Taft-Hartley Act), (U. S. Code, tit. 29, ch. 7, § 141 et seq.). The jurisdictional effect of this admission is not diminished by the circumstance that none of its employees are members of the defendant union and none are on strike or that the union has not been recognized as their bargaining agent. That they have not been so recognized is no fault of the union as a proceeding to determine the appropriate employee representative is now pending undetermined before the National Labor Relations Board. It also appears that throughout the picketing has been peaceful and orderly; no violence has been involved; that there has been no secondary boycott and none claimed, and that the signs used by the pickets have been neither fraudulent nor misleading and at no time has the employer complained that the police protection as furnished, has been inadequate.

There is no longer any doubt that Congress has pre-empted the field of labor relations affecting interstate commerce, and has conferred on the National Labor Eelations Board the exclusive right to pass upon unfair labor practice within that sphere whenever the State statute is in conflict with the Federal statute (Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U. S. 383, revg. 257 Wis. 43; International Union of United Automobile Workers v. O’Brien, 339 U. S. 454, revg. 325 Mich. 250) and by the same reasoning when the State and Federal statutes are substantially similar Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, revg. 295 N. Y. 601), and which principle we have recognized and recently applied (Costaro v. Simons, 302 N. Y. 318, revg. 277 App. Div. 773; Ryan v. Simons, 277 App. Div. 1000, affd. 302 N. Y. 742).

It may not reasonably be assumed that because the National Labor Relations Act, as amended in 1947, is silent on the issue of stranger picketing as an unfair union practice that the Congress left this phase of labor management relations to the regulation and control of the State, while retaining jurisdiction over the right to strike. The silence is accounted for — the Congress actually considered the matter by striking down an affirmative proposal that would have made “ any strike or other concerted interference with an employer’s operations ” — to compel an employer to recognize for collective bargaining a representative not certified — as an unfair labor practice (Legislative History Labor Management Relations Act, 1947, Vol. I, 428; Vol. II, 1007). Silence under such circumstances is not tantamount to creating an exception in a field otherwise pre-empted by the Congress. Whether or not stranger picketing as practiced here in a peaceful and orderly manner without violence, fraud or misleading representation constitutes an unfair union practice is an issue for determination by the National Labor Eelations Board which has exclusive jurisdiction to investigate, determine and prevent (Labor Management Relations Act, 1947, § 10).

The judgment appealed from should be affirmed, with costs.

Fuld, J.

(dissenting). I concur for affirmance for the reasons stated below.

In the case before us, the union activity complained of — even assuming that it is not the precise conduct denominated an unfair labor practice by the Labor Management Relations Act of 1947 (the Taft-Hartley Act) — is so closely related to the activities proscribed by that statute (§ 8, subd. [b], pars. [1], [2], [4], cls. [B], [C]), that it must be regarded as within that “ peripheral area * * * into which the states may not intrude without federal authorization.” (Cox and Seidman, Federalism and Labor Relations, 64 Harv. L. Rev. 211, 223.) Certainly, Congress could not have intended to differentiate between a case involving “ a strike ” and one involving “ picketing,” insofar as jurisdiction is concerned. In other words, if exclusive jurisdiction to deal with “ a strike ” is, by clause (B) of paragraph (4) of subdivision (b) of section 8, vested in the federal government — and of that there can be no doubt — it would be startling to learn that Congress relegated to the states the intimately related subject of “ picketing.”

Our problem is not to determine whether the employer, plaintiffs herein, may or may not succeed before the National Labor Relations Board and obtain redress from that body, but, rather, whether Congress has pre-empted for federal regulation the conduct and activities of the union about which complaint is made. On that score, it is clear that Congress has manifested a design to formulate a general policy in that sphere of labor management relations concerned with unfair labor practices and has made comprehensive regulations in that field. And, since that is so, there is no place for the application of state law or policy or for the exercise of state jurisdiction, even though the precise activity complained of may not be specifically covered by Congressional provision. (See Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Bd., 340 U. S. 383; Plankinton Packing Co. v. Wisconsin Employment Relations Bd., 338 U. S. 953; La Crosse Tel. Corp. v. Wisconsin Employment Relations Bd., 336 U. S. 18; Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 773-774; Costaro v. Simons, 302 N. Y. 318; Ryan v. Simons, 302 N. Y. 741; Cox and Seidman, op. cit., 64 Harv. L. Rev. 211, particularly p. 237; Feldblum, Some Aspects of Minority Union Picketing in New York, 20 Fordham L. Rev. 176, 196-197; but cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Bd., 336 U. S. 301.) Or, to phrase it a bit differently, once it appears that Congress has pre-empted certain conduct in the field of unfair labor practices, state tribunals have no jurisdiction and “ state laws have no application. They cannot be applied in coincidence with, as complementary to or as in opposition to, federal enactments which disclose the intention of Congress to enter a field of regulation that is within its jurisdiction.” (Missouri Pacific R. R. Co. v. Porter, 273 U. S. 341, 346.)

Lewis, J., concurs with Loughran, Ch. J.; Froessel, J., concurs in separate opinion in which Conway, J., concurs; Dye, J., dissents in opinion in which Desmond, J., concurs; Fuld, J., concurs for affirmance in separate opinion in which Desmond and Dye, JJ., also concur.

Judgments reversed, etc. [See 303 N. Y. 673, for decision denying motion for reargument with statement that in voting for reversal in separate opinion, Conway and Froessel, JJ., concurred with Loughran, Ch. J., that section 876-a of the Civil Practice Act does not in this case bar injunctive relief.]


author: Desmond, J.

text:
    In the Matter of John M. Murtagh, Appellant, against Samuel S. Leibowitz, Individually and as a Judge of the County Court of Kings County, Presiding as a Magistrate in the County of Kings, City and State of New York, Respondent.
    Argued July 11, 1951;
    decided October 18, 1951.

      Lloyd Paul Stryker, Harold Shapero, Harold W. Wolfram, Harvey Cohen and Francis X. Murtagh for appellant.
    I. The information fails to allege either (a) acts constituting an offense committed in Kings County, or (b) acts constituting an offense committed partly in Kings County, or (c) “ acts or effects ” of the offense ‘6 constituting, or requisite to the consummation ’ ’ thereof which occurred in Kings County. The information, therefore, is insufficient to confer jurisdiction upon respondent. (People v. Casey, 188 Misc. 352; People v. Higgins, 165 Misc. 503; People v. Hudson Valley Constr. Co., 217 N. Y. 172; People v. Mueller, 255 App. Div. 316; United States v. Lombardo, 241 U. S. 73; Rumely v. McCarthy, 250 U. S. 283; People v. Grogan, 260 N. Y. 138; People v. Fowler, 152 N. Y. S. 672; State v. Yelle, 4 Wn. 2d 327; New York Central & H. R. R. Co. v. United States, 166 F. 267; People v. Weed, 153 Misc. 404.) II. Prohibition is the only efficacious remedy available to petitioner. The application for such relief is not premature. (Matter of Culver Contr. Corp. v. Humphrey, 241 App. Div. 825; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131.) III. If the sole issue before the Court of Appeals, whether section 134 of the Code of Criminal Procedure extends respondent’s jurisdiction to the information before him, is decided in appellant’s favor, an order in the nature of prohibition should issue. IV. Section 134 of the Code of Criminal Procedure vests no jurisdiction in respondent. (State v. Yelle, 4 Wn. 2d 327; State ex rel. Schwenker v. District Court of Milwaukee Co., 206 Wis. 600; New York Central & H. R. R. Co. v. United States, 166 F. 267; United States v. Lombardo, 241 U. S. 73; Brown v. State, 108 Ala. 18; United States v. Midstate Horticultural Co., 306 U. S. 161; Commonwealth v. Morrell Refrig. Car Co., 129 Ky. 738; Rumely v. McCarthy, 250 U. S. 283; Bratton v. United States, 73 F. 2d 795; People v. Casey, 188 Misc. 352.)

      Miles F. McDonald, District Attorney (Julius Helfand and Aaron E. Koota of counsel), for respondent.
    I. Prohibition will lie only if the Magistrate is about to act without or in excess of his jurisdiction. (Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379; People ex rel. Livingston v. Wyatt, 186 N. Y. 383.) II. The issue of venue must in the first instance be determined by the committing Magistrate and appellant has not established that the latter has no jurisdiction to pass upon that question. (People v. Fein, 292 N. Y. 10; People v. Strope, 151 Misc. 580; People v. Stepski, 174 Misc. 1080; People v. Knapp, 152 Misc. 368, 242 App. Div. 811.) III. The information contains averments sufficient under section 134 of the Code of Criminal Procedure to vest the Magistrate in Kings County with jurisdiction to examine the case. (People v. Hetenyi, 277 App. Div. 310, 301 N. Y. 757; Brinckerhoff v. Bostwick, 99 N. Y. 185; People v. Knapp, 206 N. Y. 373; Hall v. People, 90 N. Y. 498; People v. Mitchell, 49 App. Div. 531, 168 N. Y. 604; People v. Hudson Valley Constr. Co., 217 N. Y. 172; People v. Deinhardt, 179 App. Div. 228, 226 N. Y. 632.) IV. Prohibition is not the proper remedy. (Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; People ex rel. Whitman v. Woodward, 150 App. Div. 770.)
   Desmond, J.

The petition in this proceeding (brought under Civ. Prac. Act, art. 78), prayed for an order prohibiting respondent, individually and as a County Judge of Kings County presiding as a Magistrate in that county, from continuing to assume jurisdiction over a criminal information filed with respondent against petitioner. Petitioner was, at the times mentioned in that information, a public officer of the City of New York, to wit, its Commissioner of Investigation. The lengthy information filed against appellant charges the latter with committing, in Kings County, the misdemeanor of neglect of duty (Penal Law, §§ 1841, 1857) in that, it is alleged, he failed to report to the Mayor of the City of New York, as required by law (New York City Charter, § 803; Administrative Code of City of New York, § 803-1.0) as to an investigation, which the Mayor had ordered appellant to make, and which, according to the information, appellant did make. That investigation, it is stated in the information, was directed toward finding out whether New York City police officers had been lax or inefficient in enforcing the gambling laws, and whether they had taken bribes from gamblers. The information asserts that the investigation made by appellant, on the Mayor’s order, did disclose much corruption and failure to enforce the gambling laws throughout New York City, including Kings County, but that appellant made no report thereof to the Mayor.

Appellant, in this prohibition proceeding, takes the position that the information charges against him a crime which by its nature can be committed in New York County only, and not in Kings County. It is undisputed that the office of appellant as Commissioner of Investigation and the office of the Mayor are both located in New York County, and so, argues appellant, any report by the commissioner to the Mayor was required to be made in New York County and any neglect of duty, such as the one alleged in this information, in failing to make such a report to the Mayor, could have occurred only in New York County. Appellant’s further contention has to do with section 134 of the Code of Criminal Procedure, which reads as follows: “ When a crime is committed partly in one county and partly in another. When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting, or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.”

Appellant says that the alleged crime described in this information is not one covered by section 134, since it was not one which could be committed “ partly in one county and partly in another ”, and since, as he argues, there were no acts or effects constituting ” or “ requisite to the consummation of ” this particular described offense, which were such as could be held to have occurred in two or more counties.

It seems clear -to us that the failure of a city commissioner to make a report to the Mayor, the offices of both officials being located in New York County only, is a fault of omission which cannot be committed elsewhere than in New York County. It follows, therefore (and so the Appellate Division unanimously held), that, without recourse to section 134, above quoted, there could not be any jurisdiction to deal with this information, in respondent, who is a County Judge elected in and for Kings County only, and qualified to sit as a committing Magistrate in that county alone. The majority of the Appellate Division, however, was of the opinion that, within the meaning of section 134, the prior act of making the investigation, in Kings County, was an “ act requisite to the consummation ” of the later offense of failing to make the report thereof in New York County, since, as the Appellate Division Per Curiam opinion puts it: “ there could have been no neglect of a duty to report unless an investigation had been made ”. (278 App. Div. 512, 514.) In effect, the court below, citing People v. Mitchell (49 App. Div. 531, affd. 168 N. Y. 604) and People v. Hudson Valley Constr. Co. (217 N. Y. 172) construed section 134 to mean that if, in order to convict a defendant, the People must prove not only a criminal act committed in one county but also an innocent act committed in another, the venue may be laid in either of the counties. We do not so construe or apply section 134.

It was the common-law rule that every offense had to be inquired into, as well as tried, in the county where the offense was committed (see authorities collected in People v. Hetenyi, 277 App. Div. 310, 314, affd. 301 N. Y. 757). So stringently was that rule applied, at common law, that where the alleged act was performed in part in one county and in part in another or others, venue was in neither county, and prosecution could not be had at all. To correct that weakness in the law, section 134 was passed in this State, as were its counterparts in other States. But that statute’s coverage and purpose are plain from its heading: “ When a crime is committed partly in one county and partly in another.” It is impossible, we think, to consider a failure to make a report to a public officer as an offense which can be broken up into parts. Under respondent’s theory, a State official, ordered by the Governor to investigate certain conditions throughout the whole State, and, doing so but failing to report to the Governor the results of the inquiry, could lie indicted in each of the State’s sixty-two counties, as if his criminal failure to report had taken place in each of those counties. It seems to us that the crime of neglect of duty can be committed only where the duty is required to be performed, and that place, in this alleged instance, was New York County, the only place where appellant was in duty bound to make the report. We find no cases closely in point in this State or elsewhere, but conclude that such a failure to report is a single act of omission, and is not divisible into several parts.

We turn to respondent’s contention that this situation is one of those described in section 134 where the acts or effects * * * constituting, or requisite to the consummation of the offense, occur in two or more counties ”. As we have noted, the claimed offense here is a single neglect of duty, consisting of one failure to make one report to one superior officer. True, there would have been no neglect of that particular sort, had not there been an investigation, a report of which appellant was required to make. But, according to the information, appellant did conduct and complete his investigation, so he is charged with no neglect of duty up to that point. His next, and separate, duty, and the one he is said to have neglected, was to make a report. His investigation preceded in time that alleged neglect of duty, but the subsequent fault, although post, was not propter, the early investigation, and so the investigation in Kings County was not an act constituting or requisite to the subsequent omission to report. Stating the same thing in another way, we hold that the lawful investigation was no part of the subsequent crime of neglect of duty, under sections 1841 and 1857 of the Penal Law.

We do not think either People v. Mitchell (supra) or People v. Hudson Valley Constr. Co. (supra) compels or suggests an affirmance here. Mitchell had been convicted in Erie County on proof that he had committed a larceny as defined in section 528 of the old Penal Code in that he, “ having in his possession, custody or control, as a bailee ” of property, had appropriated the same to his own use. The only question was as to whether the indictment charged a crime committed within Erie County since it alleged that, in that county, he had become a bailee of personal property but had later taken it to Niagara County, and there had feloniously appropriated it. The appellate courts held that Erie County had jurisdiction. We think the distinction between that case and this is that, in the Mitchell case, the crime consisted not only of appropriating another’s property to the defendant’s own use, but of doing that with property which had been entrusted to defendant as bailee, in Erie County. Thus a bailment in Erie County was a component of the crime itself, made such by the Legislature, and not merely something which had, preliminarily, to be shown. That fact which had thus been made part of a crime although innocent in itself, had its situs in Erie County, and so section 134 applied. Furthermore, as the Appellate Division’s opinion in the Mitchell case points out (49 App. Div., p. 535) the article bailed in Erie County should have been returned in that county.

People v. Hudson Valley Constr. Co. (supra) the other case relied on below, has to do with a crime which, not only in legal theory but in actual fact took place partly in Washington County, where the indictment was found, and partly in A lbany County. The alleged offense was obtaining money from the State of New York through fraudulent misrepresentation to State officials of the cost of a State construction job. The indictment alleged the filing in Albany County of the false claims, but as to Washington County it alleged not only the doing of the construction work there, but also the formation in Washington County of a conspiracy to defraud the State, and the furnishing to State inspectors, in Washington County, of false vouchers. Thus the crime in the Hudson Valley case was one made up of several separate fraudulent acts, some of which were done in Albany County and some in Washington County.

Respondent presents several other objections to the granting of a prohibition order here. He says that prohibition is a discretionary remedy and that it does not affirmatively and positively appear that it was here denied as matter of law, and so, as he sees it, we have no power to review what may have been an exercise of discretion. The Appellate Division’s majority opinion, however, says that petitioner’s application was properly denied as a matter of law ” (supra, p. 514) and so we must conclude that no exercise of discretion was the basis for its order. Moreover, the other opinion in the Appellate Division tells us that that court was unanimously of the opinion that prohibition should issue, if section 134 is not applicable.

Next, respondent urges that prohibition lies only, if a body or officer is about to act without or in excess of its or his jurisdiction and that there is, in this instance, power at least to hear and determine the issue of venue. Ordinarily, that would be true, but here it plainly appears that a Kings County Magistrate has assumed to deal with a crime which could not have been committed in Kings County at all. Total lack of jurisdiction is apparent. Finally, respondent says that this prohibition proceeding is premature, since appellant should have first submitted, to respondent, appellant’s objections to respondent’s taking jurisdiction. The answer to that is that since, on this information, respondent could never have jurisdiction to hold any hearing at all on this alleged crime, there is no reason why appellant should be compelled to submit himself to respondent for any hearing, or ask respondent to determine any issue therein.

The orders should be reversed, withouts costs, and the matter remitted to Special Term with instructions to grant the order of prohibition as prayed for in the petition.

Loughran, Ch. J., Lewis, Conwat, Dte, Fuld and Froessel, JJ., concur.

Orders reversed, etc.