author: Finch, J.

text:
    In the Matter of the Accounting of Rocco Colaci, as Executor of James Colaci, Deceased, Respondent. Anthony Falese, as Administrator of the Estate of Maria Colaci, Deceased, Appellant; Gaetano Vecchiotti, Consul General, for Francesco Colaci and Vincenzo Colaci, Respondent.

      Argued April 14, 1942;
    decided June 4, 1942.

      Hugh G. Bergen and Stanley F. Maslak for appellant.
    No waiver of the widow’s right of election has been proven. {Matter of McGlone, 284 N. Y. 527.) The widow’s intestate share, acquired by her notice of election, must be computed upon the basis of the entire net estate of the decedent. (Elenkrieg v. Siebrecht, 238 N. Y. 254; Brock v. Poor, 216 N. Y. 387; Werner v. Hearst, 177 N. Y. 63; Matter of Brown, 130 Misc. Rep. 865.)

      Jacob Nudell for Rocco Colaci, as executor, respondent.
    The deeds of division were valid and binding contracts creating .vested property rights and the widow is barred from any right of election in the real estate the subject matter of the deeds of division or in the stock of the holding corporation which was owned by the husband. (Matter of McGlone, 258 App. Div. 596; 284 N. Y. 527; Matter of Sherman, 153 N. Y. 1.) The widow by her agreement and conduct has waived and is estopped from the right of election in property contained in the deeds of division. (People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450; Matter of Petition of New York, L. & W. R. R. Co., 98 N. Y. 447; Ansorge v. Belfer, 248 N. Y. 145; Met. Life Ins. Co. v. Childs Co., 230 N. Y. 285.)

      Frank Rashap for Gaetano Vecchiotti, Consul General, respondent.
   Finch, J.

Was there a waiver by the widow of the right of election given by section 18 of the Decedent Estate Law (Cons. Laws, ch. 13) by reason of an agreement to waive dower executed before the enactment of this section?

On November 5, 1928, the testator and appellant’s intestate, hereinafter designated as appellant, being husband and wife, owned eleven parcels of real property as tenants by the entirety. On that day they conveyed these eleven parcels to themselves as tenants in common, the deed containing the following provision:

“ IT IS EXPRESSLY UNDERSTOOD AND AGREED that the ownership of the parties of the second part in the several parcels of land hereinabove described, shall from and after the date of this deed of division, be free and clear of any and all claims of either party to a right of curtesy or dower in the share of the other. It being the intention of each to hold his or her share free of any such claims, all of which are hereby extinguished.”

This direct conveyance was valid without the intervention of a third person (Dom. Rel. Law, § 56; Cons. Laws, ch. 14). Subsequently and on December 19, 1929, six of these eleven parcels, together with another plot held by the testator in his own name, were conveyed by the testator and the appellant to the Colaci Holding Corporation. Simultaneously with the execution and delivery of this deed,. another deed was made and executed by the testator and appellant to the latter, conveying the remaining five of the said eleven parcels. In t'he deed to the Colaci Holding-Corporation appears the following provision:

“ IT IS UNDERSTOOD that this conveyance, and the conveyance by the parties of the first part hereto to Maria Colaci, delivered simultaneously herewith, are to substitute a former division of the premises. The above described seven parcels of land being a part of-the premises described in a former deed of division between the parties of the first part hereto, and this conveyance and the conveyance to the wife are now made for the purpose of changing the division.”

In the deed to appellant are these provisions:

“IT IS UNDERSTOOD that this conveyance is made for the purpose of dividing the realty belonging to the parties of the first part and with the full intent that the same shall extinguish all curtesy or right of curtesy which the husband may have in the premises herein described conveyed to the wife, and that all right of curtesy of the husband in the premises above described is hereby and shall be forever after absolutely barred.
“ IT IS UNDERSTOOD that this conveyance, and the conveyance to the Colaci Holding Corporation delivered simultaneously herewith, are to substitute a former division of the premises. The above five parcels of land being a part of the premises described in a former deed of division between the parties hereto, and this conveyance and the conveyance to the Colaci Holding Corporation are now made for the purpose of changing the division.”

Decedent died March 21, 1937, leaving a last will and testament dated December 22, 1936, and a codicil thereto dated March 9, 1937, which were duly admitted to probate. On June 15, 1937, appellant served a notice of election to take her intestate share of the estate of testator pursuant to section 18 of the Decedent Estate Law. The will of testator made no provision for appellant except to give her the income during life from a trust which he •directed his executors to set up in certain of the real property which had previously been conveyed to the Colaci Holding Corporation. The testator at the time of his death owned all the issued and outstanding stock of the Colaci Holding Corporation.

The Surrogate held valid a general right of election exercised by appellant in the entire estate as in intestacy. Upon appeal the Appellate Division modified by holding that appellant was entitled only to a limited right of election since her agreements in the deeds above set forth extinguished effectively her rights in the real estate owned by her and testator as tenants in common and transferred to the Colaci Holding Corporation. Therefore, appellant was held entitled to elect to share in the value of the stock of the Colaci Holding Corporation only after deducting the value of these six parcels.

Since there existed a valid will, appellant as surviving spouse was entitled to a right of election to take against the will under section 18 of the Decedent Estate Law. That section only applies where there is a will. It being conceded that appellant duly exercised her right of election, such right attaches to the entire net estate of the testator, as set forth in this section, unless appellant has waived her right to make such election. Subdivision 9 of section 18 provides: “. An agreement so executed [by an instrument subscribed and duly acknowledged] made before the taking effect of this section wherein a spouse has waived or released all rights in the estate of the other spouse shall be deemed to release the right of election granted in this section.” It is clear that the instrument containing such waiver must be executed in all respects in accordance with the provisions of this statute. The burden, moreover, of establishing such waiver is upon respondents. While the only evidence in the record supporting respondents’ contention is the deed dated November 5, 1928, containing the alleged waiver set forth first above, the Appellate Division considered also the provisions in the other deeds quoted above which are exhibits for identification. We will likewise approach the question from the same viewpoint.

These provisions, whereby the wife released to her husband her inchoate right of dower and he released to her his right of curtesy, cannot be said to intend to accomplish more than the release of these named rights. Such provisions may not be construed as a waiver or release, pursuant to subdivision 9, of “ all rights in the estate of the other spouse.” And of course, there is no phraseology in these releases which can be construed as a waiver of the right either “ to take against a particular last will and testament ” or “ to take against any last will and testament,” as provided in said subdivision. The release goes no further than to bar the right of dower of the wife in the property therein described, and the husband’s tenancy by curtesy. It is true that agreements contained in these deeds respectively relinquishing dower and curtesy are valid and binding contracts, but they are confined by their terms to those two subjects and, therefore, are valid and binding contracts merely in relation to dower and cúrtesy and nothing more. Appellant is now asserting no claim to dower which is to be distinguished from the new and essentially different right given to the surviving spouse by section 18 of the Decedent Estate Law. We have recently held that this right of election may only be waived by strict conformity with the provisions of subdivision 9. (Matter of McGlone, 284 N. Y. 527.) It would be out of line with that precedent now to hold that an instrument, in terms confined to a waiver of dower, may be spelled out into a renunciation of the essentially different right conferred by section 18.

It follows that the order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to the appellant payable out of the estate.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Northchester Corporation, Respondent, against William S. Miller et al., as Members of the Tax Commission of the City of New York, Appellants.

      Argued April 13, 1942;
    decided June 4, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair and Arthur A. Segall of counsel), for appellants.
    Since the writ of certiorari was not issued until January 8, 1941, the requirement of the New York City Charter that the proceeding “ be begun before the twenty-fifth day of October ” 1940, was not complied with. The fact that an order allowing a writ was issued on October 16, 1940, does not cure the defect, since the order was issued ex parte, in violation of the express requirement of notice laid down by section 1289 of the Civil Practice Act. (Clare v. Lockard, 122 N. Y. 263; Schram v. Keane, 279 N. Y. 227; Hamilton v. Royal Insurance Co., 156 N. Y. 327; Erickson v. Macy, 236 N. Y. 412; Ross v. Luther, 4 Cow. 158; Matter of Tombini, 177 Misc. Rep. 148; 262 App. Div. 956; Matter of Dorfman v. Jacobs, 100 Misc. Rep. 592; Louisville & Nashville R. Co. v. Little, 264 Ky. 579; Webster v. Sharpe, 116 N. C. 466; Worcester Color Co. v. Wood’s Sons Co., 209 Mass. 105; Citizens Bank v. Taylor, 201 Iowa, 499.) The Special Term lacked power to enter an order on January 8, 1941, directing the service and filing of the writ nunc pro tunc. (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122; 278 U. S. 647; Lambert v. Lambert, 270 N. Y. 422; Lavadle v. Shelly, 90 N. Y. 546; Hoffman v. Manhattan Ry. Co., 149 N. Y. 599 ; Fink v. Wallach, 109 App. Div. 718; Wilson & Co. v. Banque Francaise du Mexique, 124 Misc. Rep. 690; People ex rel. Taber Prang Art Co. v. Wells, 39 Misc. Rep. 602.)
    No appearance for respondent.

      Thomas E. Huser, amicus curiæ.

    The proceeding was commenced when the petition was presented to the court and the order obtained. (People ex rel. Taber Prang Art Co. v. Wells, 39 Misc. Rep. 602; People ex rel. American Sugar Refining Co. v. Sexton, 274 N. Y. 304; People ex rel. Lazarus v. Feitner, 65 App. Div. 318; 169 N. Y. 604; People ex rel. Lehigh Valley R. W. Co. v. Clover, 174 Misc. Rep. 44.) There is an important distinction between a writ under article 13 of the Tax Law and a summons in a civil action. (People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417; Mercantile Nat. Bank v. Mayor, 172 N. Y. 35.) Having acquired jurisdiction, the court possessed the power to relieve from the failure to serve the writ at' least twenty days before the return day. (People ex rel. Durham Realty Corp. v. Cantor, 234 N. Y. 507; People ex rel. N. Y. City Omnibus Corp. v. Miller, 282 N. Y. 5; People ex rel. DiLeo v. Edwards, 247 App. Div. 331; People ex rel. Denny v. Clark, 257 App. Div. 905; People ex rel. Staten Island R. T. R. Co. v. Taylor, 247 App. Div. 405.)
   Lewis, J.

Questions of procedure are to be determined involving that phase of tax administration under section 166 of the Charter of the City of New York (effective January 1, 1938) which fixes the time when certiorari to review an assessment must be commenced.

The relator seeks by certiorari to review the determination of the City Tax Commission which fixed the valuation for tax purposes of its real property on East Fortieth street for the year 1940-1941. The Tax Commission, as appellant before us, asserts that the present proceeding is barred by the Statute of Limitations to be found in section 166 of the City Charter.

The City Charter (§ 165) requires that “ The final determination of the tax commission upon any application for the correction of an assessment shall be rendered not later than the twenty-fifth day of May. Otherwise, the assessment objected to shall be deemed to be the final determination of the tax commission.” Then follows the provision which has given rise to the present controversy:

§ 166. Certiorari to review final determination of the tax commission. A certiorari to review or correct on the merits any final determination of the tax commission may be had as provided by law, and if brought to review a determination mentioned in section one hundred sixty-five 'must be begun before the twenty-fifth day of October following the time when the determination sought to be reviewed or corrected was made.”

It is the claim of the Tax Commission that, upon facts which are not controverted, the present proceeding is void because, within the requirements of section 166, it was not “ begun before the twenty-fifth day of October ” of the tax year involved.

Concededly the determination which the relator would review was made by the Tax Commission in May, 1940, as required by section 165. Thereafter, on October 16, 1940, in an attempt to review that determination, the relator applied ex parte to the Supreme Court at Special Term for an order directing the issuance of a writ of certiorari. The ex parte order then granted directed the issuance of a writ to the Tax Commission, and required that it be served at least twenty days before the return day thereof. The order contained the further direction that the Tax Commission should serve upon counsel for the relator a copy of its return within ten days after service of the writ.

The record shows, however, that the order of October 16, 1940, was not filed and no writ was issued and served upon the Tax Commission until on or after January 8, 1941,— more than seventy days after the latest date, October 24, 1940, when, according to the limitation fixed by section 166 of the Charter, the present certiorari proceeding could be begun.”

The relator-respondent contends that its conceded failure to file the original ex parte order of October 16, 1940, which directed the issuance of a writ, and its failure to cause a writ to be issued and served until after October 24, 1940, was cured by an order granted January 16, 1941, at Special Term, which has been unanimously affirmed at the Appellate Division and is now the subject of this appeal. It is the relator’s claim that the Special Term order which directed that the writ of certiorari be served and filed nunc pro tunc,'” affords legal sanction for its present position, viz., that within the statutory time limitation the proceeding now before us was “ begun before the twenty-fifth day of October following the time when the determination sought to be reviewed or corrected was made.” (§ 166, supra.)

To secure the order last mentioned above the relator filed with Special Term a petition verified November 16, 1940, in which were restated those directions contained in the original order of October 16, 1940, which fixed the time when a writ to be issued thereunder should be served. Then followed the statement that Through oversight petitioner has failed to serve said writ.” It was upon that statement of fact, and others not material here, that the petitioner sought anew the aid of the court and asked that “ a new writ be issued herein, advancing the return date of said writ and requiring relator herein to serve a copy of said reissued writ on the tax commission at least twenty days before the new return day * * (Emphasis supplied.) Despite objections interposed on behalf of the Tax Commission, based upon the time limitation fixed by section 166, Special Term granted the order dated January 16, 1941, which directed that the writ of certiorari be served and filed nunc pro tunc and that returns to said writ be filed on or before February 26, 1941.” Upon the unanimous affirmance of that order by the Appellate Division two questions were certified for our determination:

“ 1. Under the New York City Charter, section 166, which provides that a certiorari to review a tax assessment must be begun before the 25th day of October following the time when the determination sought to be reviewed or corrected was made, is such a proceeding begun in due time where the relator, before that date, filed its petition for a writ and obtained an order allowing the writ, but did not serve the said writ upon the defendants before the 25th day of October?
“ 2. If the preceding question be answered in the affirmative,' did the court have jurisdiction to grant the order of January 16, 1941, directing that the writ of certiorari be served and filed nunc pro tuncf ”

In considering the first certified question we look to those statutory provisions where actions and special proceedings are given definition and correlated and to those other statutes which deal with the commencement of actions.

An action, when applied to judicial proceedings, is defined by section 4 of the Civil Practice Act as signifying an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offense.” By section 5 (id.) every other prosecution by a party for such purposes is a special proceeding. (See, also, General Construction Law, § 46-a [Cons. Laws, ch. 22].) And when rules of limitation applicable to a civil action or special proceeding were set forth in article 2 of the Civil Practice Act, the following sentence was made a part of section 10: “ The word action ’ contained in this article is to be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein or in an action.” (See, also, Buies of Civil Practice, rule 21.) Having thus assimilated actions and special proceedings the same article provides: “ § 16. When action deemed to be commenced. An action is commenced against a defendant, within the meaning of any provision of this act which limits the time for commencing an action, when the summons is served on him. * * * ” (See, also, § 218.)

This court had occasion to consider section 4 of the Civil Practice Act, quoted above, and kindred statutes, in Schram v. Keane (279 N. Y. 227, 233), where it dealt with the question as to when an action was commenced which — unlike the proceeding now before us — involved a provisional remedy. The opinion (per Lehman, J.) states: “ There can be no prosecution * * * by a party against another party until the defendant has been summoned to answer the complaint. An adjudication which is the purpose of an action can be made only where through service of a summons the defendant has received notice and opportunity to be heard.” In line with that statement of the principle which governs the rule applicable to our present problem, and in an obvious effort to extend that principle to motions incidental to an action or special proceeding, we note that the Legislature has recently amended section 113 of the Civil Practice Act to provide that “A motion is made when a notice thereof or an order to show cause is duly served.” (L. 1941, ch. 266.) It is that principle, when considered against the background of statutory provisions already quoted from the Civil Practice Act, which has led us to conclude that a certiorari proceeding to review a tax assessment is not “ begun,” within the time limit fixed by section 166 of the New York City Charter, where, as in the present case, nothing more is done by the aggrieved taxpayer before the end of the period fixed by statute to commence certiorari, than to obtain a court order which directs that a writ shall issue and fixes the time within which service of the writ shall be made.

On October 24, 1940 —■ the last date on which a certiorari proceeding might have been “ begun ” by the relator (§ 166) —■ there had not been issued, and of course there had not been served upon the Tax Commission, the writ which constitutes process by which certiorari may be instituted. The subsequent service of a writ bearing date January 8, 1941, did not constitute due and timely process within the rigid time limitation fixed by section 166; The default by the taxpayer, who inadvertently failed to cause the writ to be issued and served prior to the statutory date, was not an irregularity for which Special Term could afford relief. The rules and practice of the court being established by the court, may be made to yield to circumstance, to promote the ends of justice. Not so as to a statute; it is unbending, requiring implicit obedience as well from the court as from its suitors.” (Jackson v. Wiseburn, 5 Wend. 136, 137; Wait v. Van Allen, 22 N. Y. 319, 321.) The default was jurisdictional.

The orders should be reversed and the determination of the City Tax Commission confirmed, with costs in all courts. Certified question numbered “ 1 ” is answered in the negative. Certified question numbered “ 2 ” is not answered.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Ignazio Vaccaro, Appellant.
    Submitted April 16, 1942;
    decided June 4, 1942.

      George Hoffenberg for appellant.
    It was prejudicial error for the court to charge that the defense of alibi must be proved beyond a reasonable doubt, and the error was not cured. (People v. Elmore, 277 N. Y. 397; People v. Silverman, 252 App. Div. 149; People
      v. Allocca, 183 App. Div. 571; People v. Montlake, 184 App. Div. 578.) Hearsay evidence was introduced at the trial which was highly prejudicial to the defendant. (People v. McKane, 143 N. Y. 455; People v. Becker, 215 N. Y. 126; People v. Cassidy, 213 N. Y. 388; People v. Connolly, 253 N. Y. 330; People v. Luciano, 277 N. Y. 348.)

      Elliott A. Horton, District Attorney, for respondent.
    Any error in the court’s charge on the question of defendant’s alibi defense was cured and did not affect any substantial right of or prejudice the defendant. (People v. Manzara, 246 App. Div. 69; People v. Salmore, 233 App. Div. 522; People v. FitzGerald, 195 N. Y. 153; People v. DeMaio, 243 N. Y. 588.) Where the record on appeal clearly demonstrates the guilt of a defendant, reversal will not be had for errors in the course of a trial unless they are highly prejudicial and affect substantial rights. (People v. Rutigliano, 261 N. Y. 103; People v. Bloodgood [Heckheimer], 251 App. Div. 593; People v. Sprague, 217 N. Y. 373; People v. Pacelli, 200 App. Div. 850; 233 N. Y. 592; People v. Ferola, 215 N. Y. 285; People v. Miller, 257 N. Y. 54; People v. Morse, 196 N. Y. 306.)
   Finch, J.

Defendant-appellant has been convicted of attempted arson in the second degree. He appeals to this court relying chiefly upon alleged errors at the trial.

Defendant was charged, with Peter G. CoUis, Alfred Pace, Santo DiNaro and Joseph Cigna, with an attempt to burn down a cottage owned by Collis. The four other defendants named pleaded guilty and were sentenced under such pleas.

At the trial defendant did not dispute the fact that an attempt at arson was made by his codefendants, as charged. The defense interposed by him was that of an alibi. In support of the defense of alibi, defendant took the stand in his own behalf and also introduced a number of witnesses, to prove that he was at home with his family at the time the attempt at arson was made.

Defendant alleges error in the admission of hearsay evidence as part of the proof identifying him as one of those engaged in the crime.

This alleged error arose in the following manner. The attempt to commit arson was made on the 21st of April, 1940. Some days thereafter Joseph Cigna, one of the codefendants, was arrested. Then on May 18,1940, Lawrence Reilly, a member of the Rochester Arson Squad, drove past defendant’s house with Cigna while defendant was out in his yard. Reilly testified that defendant was pointed out to him by Cigna as the man with whom he, Cigna, and DiNaro had talked on the night before the attempt to set the fire. This testimony by Reilly, over objection and exception, was to a hearsay statement made by Cigna not in the presence of defendant. Although admissions made by a co-conspirator or accomplice during the course of the commission of the crime, or in furtherance of its purpose, are competent (People v. McKane, 143 N. Y. 455; People v. Luciano, 277 N. Y. 348), it is equally fundamental that statements made by co-conspirators or accomplices after the crime has been consummated are incompetent and inadmissible. The testimony of Reilly was, therefore, altogether inadmissible. (People v. Ryan, 263 N. Y. 298; People v. McQuade, 110 N. Y. 284; People v. Kief, 126 N. Y. 661.)

It is the contention of the District Attorney, however, that the admission of this evidence cannot be held prejudicial. With this contention we disagree. The evidence against the defendant was not so clear and convincing as to make the incompetent testimony given by Reilly merely cumulative. It is true that there was testimony tending to identify defendant as being at the scene of the crime and as meeting with some of the codefendants the night before the crime and on the same day following the crime. In addition there is the evidence of flight. On the other hand, the identification both by the father, Joseph Cigna, and the son, Anthony Cigna, was at best vague and somewhat indefinite. When Anthony Cigna was asked on direct examination to identify defendant as one of the men at the scene of the crime, he answered: “ A. He wasn’t dressed the way he is now — but I wouldn’t say it would be exactly him but as to resemblance.” Likewise Joseph Cigna in his direct examination said: “ Q. Did you see anybody get out of the car when he stopped? A. Santo and the other one. Q. Who was the other one? ’ A. The young man with Santo.”

It appears from the record that the defendant is not young but a man well on in middle life and the father of eight children.

Joseph Cigna would not state positively that the man he met at the scene of the attempted arson was the same one he pointed out to Detective Reilly: “A. It looks like him only just a little different.” There are also other inconsistencies in the testimony as, for instance, where Joseph Cigna was unable to locate the residence of the defendant which he claimed to have visited.

Under these circumstances, we cannot say that this hearsay evidence was not prejudicial.

Another error urged by appellant grew out of the charge of the trial court to the jury. The trial court in its charge said: “ If you are satisfied beyond a reasonable doubt that this defendant was at home with his family, as his witnesses testified, then it will be your duty to acquit him, because he couldn’t be at home and at the same time be where the People’s witnesses placed him.” To this counsel for the defense excepted as follows: Also, I except to that portion of the charge that states that before the jury can believe the evidence of the defendant’s witnesses as to his presence at home as an alibi, they will have to be convinced as to that beyond a reasonable doubt.” Thereafter counsel for the defendant requested the court to charge as follows: I ask you also to charge that the burden of proof is upon the prosecution to prove defendant guilty beyond a reasonable doubt and that the burden is never upon a defendant to prove himself innocent. The Court: ‘ I so charge.’ ”

The District Attorney, conceding that the court erred in instructing the jury that defendant carried the burden of proving his alibi beyond a reasonable doubt, contends that the error was cured by the subsequent request made by counsel for defendant. Whether such error was cured in the minds of the jurors by the subsequent request presents, a serious question. Certain it is that the error made was not directly corrected. Whether the jurors were able to follow the correction, if as such it was intended, no one can say with certainty. Since by the error in the charge the court in effect had made the defendant carry the burden of proving his innocence and at best a doubt remains whether this error was cured in the minds of the jury by the subsequent charge, a new trial on this account also should be granted. (People v. Elmore, 277 N. Y. 397.)

It follows that the judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


author: Desmond, J.

text:
    May Dunseath, as Administratrix of the Estate of David A. Dunseath, Deceased, Appellant, v. Starrett Brothers & Eken, Inc., Respondent.
    Argued April 16, 1942;
    decided June 4, 1942.

      Paul O’Dwyer for appellant.
    In transporting the plaintiff’s intestate at the time and place of the occurrence, Dennis was doing so with the defendant’s knowledge and consent, at the defendant’s request, for the defendant’s benefit, in furtherance of the defendant’s business and in execution of the defendant’s contractual obligation to the plaintiff’s intestate. (Nalli v. Peters, 241 N. Y. 177; Cardot v. Barney, 63 N. Y. 281.) Dennis was not an independent contractor. (Milligan v. Wedge, 12 A. & E. 737.)

      Clarence S. Zipp and J. Austin Lyons for respondent.
    There is no evidence in this record reasonably permitting an inference that Dennis, who drove the car in which decedent was riding, was a servant or agent of defendant at the time of the accident. (Moore v. Wills, Inc., 250 N. Y. 426; Veitch v. Jenkins, 107 Va. 68.) No distinction can be drawn between the status of Dennis and that of decedent. If they had been employees of defendant at the time of the accident, any negligence of Dennis would be that of a fellow servant, and recovery would necessarily be barred. (Kinney v. N. Y. C. & H. P. R. R. Co., 217 N. Y. 325; Pitoff v. Westinghouse, Church, Kerr & Co., 234 N. Y. 187; Tomachio v. Carter & Weeks Stevedoring Co., 235 N. Y. 586; Yaconi v. Brady & Gioe, Inc., 246 N. Y. 300; Fay v. De Camp, 257 N. Y. 407.)
   Desmond, J.

In November, 1940, defendant, a corporation doing construction work at an army camp in Florida, needed workers and sought them through employment agencies in New York city. Through one of these agencies plaintiff’s intestate heard of this employment opportunity and went to defendant’s New York city office where he was offered a position at a weekly salary which would begin on his arrival at the Florida camp, his transportation expenses to and from Florida to be paid by defendant. On the d&y after this first interview, plaintiff’s intestate notified defendant’s representative that he accepted the position, whereupon he was told by the representative that arrangements had been made whereby plaintiff’s intestate and three others of defendant’s newly engaged workers would be driven to Florida by one Dennis in the latter’s automobile. Dennis, who had been employed by defendant at various times on other projects and had been engaged for the Florida project, also,' was given thirty dollars for expense moneys and each of the others, including plaintiff’s intestate, received ten dollars. Early in the morning of the second day’s journey from New York to Florida, and while the car was being driven by Dennis in Virginia, there was a collision with another, automobile. Plaintiff’s intestate was killed. This suit was brought against defendant on the theory that the collision and death were caused by the negligence of Dennis, who, according to the theory of the complaint, was then acting as agent, servant or employee of the defendant and was operating said motor vehicle with the knowledge, consent and approval of the defendant, and for the benefit and in the course of the defendant’s business.” The answer, besides denying negligence and alleging contributory negligence, denied that Dennis was defendant’s agent, alleged that defendant had duly secured workmen’s compensation for all its employees, and pleaded that plaintiff’s intestate and Dennis were fellow servants and that plaintiff’s intestate had assumed the risks of his employment. The answer set forth also certain statutes of Virginia, which limit damages in death cases to $10,000 and forbid any recovery in favor of a non-paying automobile guest, or his representative, against the owner or operator of the car, unless the injury to, or death of the guest, was caused by the gross negligence ” of the owner or operator. The evidence on the trial as to the accident was such as to justify a finding by the jury that the collision came about through the gross negligence of Dennis.

The trial justice instructed the jury that plaintiff could not recover at all against defendant if the transportation to Florida was the voluntary act of Dennis, but that if Dennis were found to be defendant’s agent for that purpose, plaintiff might recover, provided there were findings of gross negligence and absence of contributory negligence. Further, said the court, there could be no recovery if Dennis and his passengers were employees of defendant, unless the employment of Dennis was a special employment to transport the others to Florida.

The jury’s verdict was for plaintiff in the maximum amount of $10,000. The Appellate Division unanimously reversed on the law and dismissed the complaint. We consider that on the evidence here, the jury was justified in finding that Dennis, in driving defendant’s newly engaged workmen to their place of work, was acting as the agent of defendant in carrying out its agreement to provide transportation for the men. Dennis and the others were not fellow servants; indeed, defendant so concedes. Their jobs and their pay were to begin when they should reach Florida. For that reason, as both parties conceded on the argument before us, the Workmen’s Compensation Law (Cons. Laws, ch. 67) cannot apply. We find nothing in the record to require, or to permit, a holding that Dennis was an independent contractor.

The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. (See 288 N. Y. 734.)

Lehman, Ch. J. Loughran, Finch, Rippey, Lewis and Conway, JJ., concur.

Judgment accordingly.


author: Finch, J. Loughran, J.

text:
    3105 Grand Corporation et al., Respondents, v. City of New York et al., Defendants, and 92-21 Union Hall Street, Inc., Appellant.

      Argued March 13, 1942;
    decided June 4, 1942.

      Max Kavenoff and Lucien Nemser for appellant.
    The orders settling and approving the accounts of the receiver, discharging the receiver and authorizing his release, constitute a complete bar to the plaintiff’s cause of action where the orders of the court are in full force and effect, contain no reservation as to claims existing at the time of the discharge and no statute imposes liability either against the foreclosing mortgagee or the property affected by the foreclosure. The discharge of the receiver releases not only the receiver but also the property from further liability. (4 Pomeroy Eq. Juris. [4th ed.] § 1668, p. 3885; Clark, Law & Practice of Receivers, 1008, § 696; Johnson v. Central Trust Co., 159 Ind. 605; Madorsky v. Suburban Homes Co., 45 Ohio App. 83; Hanlon v. Smith, 175 Fed. Rep. 199; O’Leary v. Brent, 97 Ark. 372; Bond v. State, 68 Miss. 648; Ryan v. Hays, 62 Tex. 42; Davis
      v. Duncan, 19 Fed. Rep. 477; Farmers Loan & Trust Co. v. Iowa Central R. R. Co., 7 Fed. Rep. 537.) Subrogation to the Hen of taxes wiH be denied where defendant was not the owner of the property at the time of the tax payment, made to discharge a debt and the defendant has suffered a change of position. (Newall v. Hadley, 206 Mass. 335; Title Guarantee & Trust Co. v. Haven, 196 N. Y. 487.) Defendant must prevail where it has been guilty of no wrongdoing, has exercised every diHgence in the prosecution of its foreclosure action and has suffered a change of position prior to the commencement of the plaintiffs’ action. (Wille v. Maier, 256 N. Y. 465; Groesbeck v. Morgan, 206 N. Y. 385; Feldman v. Met. Life Ins. Co., 259 App. Div. 123.)

      Henry N. Rapaport, Irving S. Rapaport, Robert S. Garson, Leo Vernon and Walter Jeffreys Carlin for respondents.
    The undisputed facts estabhsh plaintiffs’ cause of action. (Grace v. Corn Exchange Bank, 287 N. Y. 94; Whiting v. Hudson Trust Co., 202 App. Div. 375; 234 N. Y. 394; Newall v. Hadley, 206 Mass. 335; Bonham v. Coe, 249 App. Div. 428; 276 N. Y. 540.) The order approving Faber’s account as receiver and discharging him is not res judicata as against the plaintiffs and does not bar their cause of action. (Webster v. Fall, 266 U. S. 507.)
   Finch, J.

This action is in equity to recover moneys diverted from receivership funds beneficially owned by plaintiffs to pay taxes on property in another realty foreclosure receivership of which payments defendant, 92-21 Union Hall Street, Inc., received the benefit. Two separate and independent foreclosure proceedings were pending, one by plaintiffs and another by defendant-appellant. One Boehle was receiver in plaintiffs’ foreclosure, and one Faber was receiver in appellant’s foreclosure. Boehle and Faber were business associates, and appellant was actively engaged in compelling Faber through court proceedings to account and pay the taxes on the property of appellant. Boehle took plaintiffs’ money out of his receivership account, to the amount of $8,923.26, and gave it to Faber who paid taxes due and owing on the property which was then being foreclosed by appellant and which appellant subsequently bought in on the foreclosure sale. Subsequently Faber and appellant settled and compromised Faber’s receivership account, and appellant executed a release to Faber.

Plaintiffs thereupon brought this action in equity to recover the moneys so misappropriated from them. Appellant interposed an answer which raised questions of fact as to the sources of the funds. The court on consent of the parties ordered a reference as to this, question of fact. The referee reported that the checks drawn by Boehle to pay the taxes on the property of appellant were drawn upon accounts maintained by Boehle as receiver of the properties in which plaintiffs alone had a beneficial interest.

It appears from the record that since the pendency of this action, the property at 92-21 Union Hall street, on which the taxes in question were paid, and which appellant purchased at the foreclosure sale, has been resold by appellant. “ As part of the sale, a fund of $15,000 has been set aside to pay the City’s taxes if the hen of such taxes should be restored, or the plaintiffs’ claim if the plaintiffs should be successful in impressing a lien on the real estate. * *

Upon the above facts it appears that trust funds in which the plaintiffs alone were beneficially interested were stolen from them by Boehle and used to pay taxes due and owing on the property which appellant was foreclosing. The result is not only an unjust enrichment of appellant corporation, but also gives rise to a claim against it based upon subrogation.

Appellant has been unjustly enriched at the expense of plaintiffs to the extent that the taxes paid on the property of appellant were paid out of funds belonging to plaintiffs. (Restatement of the Law of Restitution, p. 12.) The claim of the city for these taxes constituted a lien superior to the lien of the mortgage of appellant. Under such circumstances a benefit resulting in unjust enrichment arises, not only where the moneys of an outside third party add to the property of another, but also where the payment saves the other from expense or loss. In Whiting v. Hudson Trust Company (234 N. Y. 394, 409) we said: “ The defendant’s enrichment is a direct and immediate, not an indirect or collateral, consequence of the act of the trustee. It is an enrichment independent of the volition of the defrauded plaintiff or of those for whom he acts.. The fruits of the tort are profits in the coffers of the estate. We cannot characterize enrichment so procured as other than unjust. * * * The trust is still augmented by assets unconscionably retained.”

8 Moreover, facts are here present which permit of the application of the doctrine of subrogation, “ which is a device adopted by-equity to compel the ultimate discharge of an obligation by him who in good conscience ought to pay.” (Ballantine Law Dictionary, Subrogation.) There is nothing in the nature of a hen for taxes, or in the fact that such hen exists in favor of a sovereign taxing power, so as to prevent the application of this equitable doctrine of subrogation. (Title Guarantee & Trust Co. v. Haven, 196 N. Y. 487.) In ah fairness and justice the property of appellant ought not to be permitted to benefit by the payment of these moneys misappropriated from a fund arising exclusively from the properties in which plaintiffs were beneficially interested. The one who in good conscience ought to pay should be compelled ultimately to discharge the obligation. Subrogation is the principle adopted by equity to meet just such a situation. It is a highly favored remedy and, while not a matter of strict right, the courts are inclined to extend rather than restrict its apphcation. (Bonham, v. Coe, 249 App. Div. 428; affd., 276 N. Y. 540.)

Defendant urges that, while these principles would be applicable against an owner whose taxes had been paid with moneys of a third party, they would not be applicable where the taxes were paid upon lands upon which appellant held only a defaulted first mortgage since the city’s claim for taxes on realty does not subject the mortgagee to any personal liability, but merely creates a charge upon the land. The answer may be couched in almost the exact words used by this court in Title Guarantee & Trust Company v. Haven (supra, 496): “ The answer to this objection is that the demand for a personal money judgment is only incidental and that the principal prayer of the complaint is for subrogation to the hen of the city, which is to be deemed transferred to the proceeds of the land in view of the fact that the land has been conveyed away by the defendants. If the defendants still retained the land upon which the assessments were paid, the plaintiff succeeding to the rights of the city would have acquired its hen thereon for the amount of the assessments.”

In. the case at bar there is present also the fact that the funds were wrongfully appropriated from custodia legis and traced therefrom into the fund now held by appellant. Taxes which, upon default of the mortgagor, would have had to be paid by appellant, since they were superior to the hen of its mortgage, were paid with moneys rightfully the property of those entitled to the proceeds of the Boehle receiverships.

The case at bar is analogous to those cases where a trustee of one trust steals from another trust fund, of which he is also trustee, to pay claims against the first trust. In Whiting v. Hudson Trust Company (234 N. Y. 394) one Eckerson was the executor of two estates, here designated as A and “ B.” Due to the embezzlement of Eckerson, Estate A was short when Eckerson was directed by the court to make a distribution to the legatees. In order to make the payments in accordance with the order of the court, Eckerson, taking funds from the B ” Estate, deposited them in his account for the A Estate, and made distribution therefrom to the legatees. Thereafter Eckerson died, leaving Estate B ” short of funds to the extent of sums used for the distribution to legatees in the A ” Estate. It was there held that, as Eckerson had stolen and wrongfully used trust moneys to pay the claims of the beneficiaries, the “ B ” Estate might enforce such claims against the A ” Trust Estate out of the assets that remained to the amount of the claims paid. So, likewise, in the case of Newall v. Hadley (206 Mass. 335), one man was cotrustee for two estates. He stole money from Estate A ” and then took $11,000 from Estate “ B ” and deposited the same in Estate “ A.” Before his cotrustee in Estate “ A ” knew anything about the transfer, the defaulting trustee took some $3,800 of the converted funds and used them for his own purposes. The balance he used to pay the debts of Estate “ A ” consisting primarily of taxes on real property owned by that estate and interest on the mortgage on this property. Thereafter he made distribution to the cestuis of Estate A,” and several months after such distribution rendered an accounting which was approved by the court. Later the beneficiaries in Estate “ B ” discovered the conversion and sued in an independent action the distributees of Estate “ A ” to recover back the funds converted. It was held that Estate “ B ” could recover all of the moneys used to pay the debts of Estate “A,” together with interest from the dates when the debts were paid.

The elements of unjust enrichment and subrogation being present in the case at bar, plaintiffs are entitled to recover the moneys stolen from then and used to pay the taxes which were superior liens against tne property upon which defendants were foreclosing the mortgage, unless a valid defense has been interposed.

Appellant urges first that the order settling and approving the accounts of the receiver, discharging him and authorizing his release, constitutes a complete bar to the cause of action of plaintiffs. It is an answer to this contention that these plaintiffs were not parties to the foreclosure proceeding of appellant, nor received any notice either of the payment of the taxes with their funds or of the motion to confirm the receivership áccounting, in which proceedings appellant alone was interested. The moneys taken from plaintiffs belonged in no way to the funds of appellant’s receivership; nor did any claimant in this latter receivership have any rights against these moneys. As to the money taken from plaintiffs, Faber, as receiver in appellant’s foreclosure, acted merely as a conduit. The actions of this appellant which resulted in a settlement and' compromise with the receiver in its own. action, concluded in the absence of the plaintiffs and without any notice to them, cannot bind these plaintiffs. While appellant might compromise with its own receiver to its own advantage, it could not compromise away the rights of these plaintiffs in their absence. If this were not so, any beneficiary of misappropriated moneys, by the mere expedient of giving a full release to the receiver appointed in the foreclosure action, could obtain a complete defense without opportunity of redress to the rightful owner of such moneys. Hence these plaintiffs are not bound .by the accounting between this appellant and its own receiver, of which they had no notice, but have a right to follow their moneys in this independent action. (Newall v. Hadley, supra.) In the case cited, the facts of which have been more fully set forth above, the same defense of accounting was urged by the defendants in that action. As to this the court said: “ * * * The rights of the parties are not changed by the fact that after the money so repaid has been paid out, the thief makes up a lying account in which no one of these facts is disclosed and the principal assents to it under the feeling that it is a true account.” And again: The rights of the parties in a case like that now before us are fixed when the payment is made, and that they are not affected by a subsequent accounting similar in its legal aspects to the accounting which took place in the case at bar.”

Appellant finally urges that it was a purchaser at the foreclosure sale and may interpose such purchase as a complete defense to the right of plaintiffs to follow the moneys stolen from them. If appellant had been an outside third party purchasing at the foreclosure sale, it would have been an innocent purchaser, not charged with the equities at the sale, and a different question would be here presented. (Marlee, Inc., v. Bittar, 257 N. Y. 240.) But appellant, as a party to the foreclosure action, is not such an innocent purchaser.

Since appellant is not an innocent purchaser and is in the position of retaining the benefits of the stolen moneys, it must be held to adopt the entire transaction and to be chargeable with the knowledge that such moneys were stolen, so far at least as relates to the right of appellant to retain the benefit. This court quoted with approval in Whiting v. Hudson Trust Company (supra) from Atlantic Cotton Mills v. Indian Orchard Mills (147 Mass. 268), where it was said: “ The rule is general that, if one who assumes to do an act which will be for the benefit of another, commits a fraud in so doing, and the person to whose benefit the fraud will inure seeks, after knowledge of the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all, and to be chargeable with the knowledge of it, so far at least as relates to his right to retain the benefits so secured.”

It follows that the judgment appealed from should be affirmed, with costs.

Loughran, J.

(dissenting). One Boehle was receiver in an action to foreclose a real estate mortgage. He was a business associate of one Faber, who was receiver in another like but independent foreclosure action. By concert between them, Boehle, on March 11, 1936, drew checks upon his receivership accounts for $8,923.26 and therewith paid taxes and penalties then outstanding against the premises that were under foreclosure in the action in which Faber was receiver. At the sale held in that action on April 29, 1936, these premises were bid in for $105,000.

The purchaser at that sale is the defendant in this present action which was commenced in 1939. The plaintiffs are the mortgagees on whose unrelated titles Boehle had acted as receiver. They now pursue the defendant on the theory “ that the beneficial owners of foreclosure receivership funds wrongfully diverted to the payment of taxes in connection with another receivership by connivance with the other receiver may, when traced, be followed and recovered from the beneficiary of such payment.” This theory was employed by the courts below with the result that the property purchased by the defendant has been impressed with a lien for the restoration to the plaintiffs of the amount of the taxes thereon which Boehle had antecedently paid out of bis receivership credits. A single sentence sufficed to dispose of the issue of law. “ Clearly,” the Special Term said, “ there has been an unjust enrichment to the extent of such taxes paid ($8,923.26), and in all fairness and justice the property ought not to be permitted to benefit by such payments.” I cannot accept this short conception of the case.

The action in which Faber was receiver is described in the record as the “ Bar-Lellan action.” In respect of that action, the following findings were made below: “On March 11, 1936, taxes and penalties of $12,624.36 were due on the Bar-Lellan property. They were paid in this manner: $3,701.77 by Faber’s check drawn on his receivership account in the Bank of Manhattan Company, $4,500 by Boehle’s check drawn on his receivership account in the Jamaica National Bank, and $4,423.26 by his check drawn on his receivership account in the Bank of Manhattan Company. In his accounting in the Bar-Lellan action Faber was credited with the tax payment of $12,624.36, but was still short $16,300, in which amount he was surcharged; $15,000 was paid by his surety and the balance of $1,300 compromised by order of February 2, 1938, discharging him from liability and directing the defendant 92-21 Union Hall Street, Inc., to deliver to the receiver a general release, which was done. Apparently at this time [i. e., 1938] none of the parties other than the receivers knew the manner in which these taxes were paid.” The foreclosure sale through which the defendant took title to the Bar-Lellan property was held, I repeat, on April 29, 1936.

I am of opinion that in these circumstances the defendant was entitled to the protection of the great equitable principles as to bona fide purchases for- value and without notice. (See Frost v. Beekman, 1 Johns. Ch. 288, 300; Simpson v. Del Hoyo, 94 N. Y. 189; Ten Eyck v. Witbeck, 135 N. Y. 40, 48, 49.) “A court of equity will not deprive a defendant of any right of property, whether legal or equitable, for which he gave value without notice of the plaintiff’s equity * * *. If he gave value, and had no notice of the equity, it is eminently just for him to keep what he has got.” (Ames, Legal Essays, 254, 255.) As I see it, the decision now made by this court is contrary to these principles and to the cognate policy that there shall be free and fair transmission of record titles to real estate.

One or two other matters should perhaps be noticed. Faber was not the agent of the defendant or of any other person. He was the officer of the court wherein his accounts were settled. The compromise of his failure to make up his shortage of $1,300 was not the result of anything done by this defendant. The court ordered that compromise in the exercise of its own independent judicial discretion. Nor does the defendant suffer any disablement from the circumstance that it was the party plaintiff in the foreclosure on which it became the purchaser for value and in good faith. From the days of the Revised Statutes it has been the rule that every judgment for the sale of mortgaged premises must direct that the plaintiff or any other party may become a purchaser at the foreclosure sale unless the court specially orders otherwise. (Rules Civ. Prac., rule 259; Ten Eyck v. Craig, 62 N. Y. 406, 421. Cf. Maroney v. Boyle, 141 N. Y. 462.)

I think the judgments should be reversed and the complaint dismissed.

Rippey, Lewis, Conway and Desmond, JJ., concur with Finch, J.; Loughran, J., dissents in opinion in which Lehman, Ch. J., concurs.

Judgment affirmed.

       This order was dated February 2, 1938, but was entered March 2, 1938.


author: Rippey, J. Desmond, J.

text:
    Florsheim Shoe Store Co., Inc., et al., Appellants, v. Retail Shoe Salesmen’s Union of Brooklyn and Queens, Local 287, et al., Respondents.

      Argued October 14, 1941;
    decided June 4, 1942.

      Julian C. Sorin and Milton Waxenfeld for appellants.
    Respondents, having submitted to the Labor Board’s jurisdiction and participated in its representation proceedings, are bound by the ensuing certification, and no labor dispute exists after such certification and the execution of a closed shop agreement with the certified union. (Matter of Wallach’s, Inc., v. Boland, 277 N. Y. 345; Euclid Candy Co. v. Summa, 174 Misc. Rep. 19; 259 App. Div. 1081; Association of Plumbing & Heating Contractors v. Merten, 173 Misc. Rep. 448 ; 261 App. Div. 543; Jewish Hospital v. “ John

      Doe,” 252 App. Div. 581; Mlle. Reif, Inc., v. Randau, 166 Misc. Rep. 247; Wishny v. “ John Jones,” 169 Misc. Rep. 459.) Respondents’ picketing frustrates and violates the purpose, policy and spirit of article 20 of the Labor Law (Cons. Laws, ch. 31). ( United Baking Co. v. Bakery & Conf. Workers’ Union, 257 App. Div. 501; Association of Plumbing & Heating Contractors v. Merten, 173 Misc. Rep. 448; 261 App. Div. 543.) Respondents’ picketing is coercive, retaliatory, malicious and unlawful. (Opera On Tour, Inc., v. Weber, 285 N. Y. 348; Murphy v. Ralph, 165 Misc. Rep. 335; Goldfinger v. Feintuch, 276 N. Y. 281; Paylay Hats, Inc., v. Zaritsky, 151 Misc. Rep. 569; Falciglia v. Gallagher, 164 Misc. Rep. 838.) Injunctive relief on the facts in the case at bar would not violate the right of free speech because there is no labor dispute. (Thornhill v. Alabama, 310 U. S. 88; A. F. of L. v. Swing, 312 U. S. 321; Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U. S. 287; Senn v. Tile Layers’ Protective Union, 301 U. S. 468; Matter of Triboro Coach Corp. v. State Labor Relations Board, 286 N. Y. 314.)

      Samuel Null and Arthur K. Garfinkel for respondents.
    The action involves and grows out of a “ labor dispute ” within the meaning and definition of section 876-a of the Civil Practice Act. Since the appellants failed to comply with the conditions precedent necessitated by section 876-a, they were not entitled to a hearing thereunder, and the appellants’ motion for a temporary injunction was properly denied by the Appellate Division. (Jeffery-DeWitt Insulator Co. v. National Labor Rel. Board, 91 Fed. Rep. [2d] 134; National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U. S. 333 ; Fur Workers Union, Local No. 72, v. Fur Workers Union No. 21238, 105 Fed. Rep. [2d] 1; 308 U. S. 522; Strauss v. Steiner, 173 Misc. Rep. 521; 259 App. Div. 725; Lifshitz v. Straughn, 261 App. Div. 757; Fairbanks Cube Steak House, Inc., v. Viera, 259 App. Div. 804; Stalban v. Friedman, 259 App. Div. 520; May’s Furs & Ready to Wear, Inc., v. Bauer, 282 N. Y. 331; Boro Park Sanitary Live Poultry Market, Inc., v. Heller, 280 N. Y. 481; Ballis v. Fuchs, 283 N. Y. 133; Goldfinger v. Feintuch, 276 N. Y. 281; People v. Muller, 286 N. Y. 281; Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U. S. 91; United

      States v. Hutcheson, 312 U. S. 219; Lauf v. Shinner & Co., 303 U. S. 323.) Wrong should not be ■ imputed to the respondent unions because they, in conjunction with a number of the appellants’ employees, declared a strike against and picketed the appellants, upon the appellants’ denial of their employees’ rights under the State Constitution and the Labor Relations Act and upon the appellants’ refusal to permit their employees to affiliate with and bargain collectively through the respondent unions and thereby to better their working conditions. The respondent unions have the prerogative to resort to the strike and picketing. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; Nann v. Raimist, 255 N. Y. 307; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; May’s Furs & Ready to Wear, Inc., v. Bauer, 282 N. Y. 331; Strauss v. Steiner, 173 Misc. Rep. 521; 259 App. Div. 725; Fur Workers Union, Local No. 72, v. Fur Workers Union No. 21238, 105 Fed. Rep. [2d] 1; National Protective Assn. v. Cumming, 170 N. Y. 315; J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315; Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65.) The temporary injunction was improperly granted at Special Term and was correctly reversed by the Appellate Division. (Hague v. Committee for Industrial Organization, 307 U. S. 496; Schneider v. New Jersey, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; American Federation of Labor v. Swing, 312 U. S. 231; Carlson v. California, 310 U. S. 106; Miller’s, Inc., v. Journeymen Tailers Union, 128 N. J. Eq. 162; 312 U. S. 658; Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U. S. 287; Senn v. Tile Layers Protective Union, 301 U. S. 468; People v. Muller, 286 N. Y. 281; May’s Furs & Ready to Wear, Inc., v. Bauer, 282 N. Y. 331; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260.)
   Rippey, J.

This is an action in equity by plaintiffs, who operate twelve retail stores in New York and Brooklyn, to restrain the defendants from picketing their premises in this State and from the performance of other coercive, oppressive and unlawful acts. The defendants are labor unions affiliated with the Congress of Industrial Organization. No answer has been interposed to the complaint. However, it is alleged in the complaint that no “ labor dispute ” exists and it appears that such proceedings have not been taken by plaintiffs as would be required preliminary to the granting of an injunction in the event that the controversy involves a labor dispute ” within the words and meaning of section 876-a of the Civil Practice Act. Upon the complaint and affidavits, Special Term granted an injunction pendente lite. Upon appeal, the Appellate Division, by a divided court, reversed on the law and denied the motion for preliminary injunction on the ground that the complaint, on its face, was insufficient in law and certified to us the question “ Does the complaint state facts sufficient to constitute a cause of action? ”

In a determination of that question we must consider, as respondents contend, not alone the allegations of the complaint but the assertions of affiants in the various affidavits contained in the record tending to support or negative the allegations of the complaint (Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65). The Appellate Division did not dismiss the complaint. By necessary implication, the certification by the Appellate Division of a question of law indicates that the denial of relief in that court was not in the exercise of discretion (Braunworth v. Braunworth, 285 N. Y. 151). To sustain the order from which the appeal is taken, we must find that the allegations of the complaint and affidavits and reasonable inferences therefrom when considered in aspect most favorable to plaintiffs are insufficient as matter of law to sustain a cause of action. There was no reversal of any finding of fact deemed by Special Term necessary to sustain the injunction. We, therefore, determine whether, as matter of law upon the record now presented, the plaintiffs can succeed. If so, we must reverse the order of the Appellate Division and reinstate the order of the Special Term (Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 232 N. Y. 256; Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320; Mitchell, Inc., v. Dannemann Hosiery Mills, 258 N. Y. 22; Matthews v. Truax, Carsley & Co., 265 N. Y. 6).

The decisive question here, upon the basis above outlined, is whether the facts show that at the time of the commencement of this action a labor dispute ” existed between the parties within the meaning and intent of the provisions of section 876-a of the Civil Practice Act in view of the declared legislative policy of the State.

The controversy has at all times been essentially jurisdictional — based upon a contest between^ rival unions to determine which should be recognized by plaintiffs as collective bargaining agent for plaintiffs’ employees. On the one side was the Retail Shoe Salesmen’s Union, Local 1115F, A. F. of L., and on the other side were Retail Shoe Salesmen’s Union, Locals 1268 and 287, C. I. 0. For the purposes of this case we assume without deciding that the controversy started out as a “ labor dispute ” between the parties to this action within the meaning of section 876-a of the Civil Practice Act.

Defendants claim that in 1938 and the early part of 1939 the plaintiffs sponsored and dominated a company union under the name of the Florsheim Retail Shoe Employees Protective Union, which, on April 18, 1939, petitioned the New York State Labor Relations Board for investigation and certification of representatives for collective bargaining, pursuant to section 705 of the New York State Labor Relations Act (Labor Law, art. 20 [Cons. Laws, ch. 31]). On May 8, 1939, the defendant unions filed with the Board charges of unfair labor practice, pursuant to section 706 of the act, in which they accused the plaintiffs, among other things, of having sponsored that union and of having intimidated and coerced their employees into joining that union and into refraining from joining and into resigning from the defendant unions. Thus an issue was then raised before the Board as to the propriety of granting the petition of the so-called company union for investigation and certification of a bargaining agent. However, on June 5, 1939, the defendant unions withdrew those charges with the reservation, however, of a right to renew at a later date and to interpose those charges as a defense to the proceeding for investigation and certification. Thereupon, defendants called a strike and caused seventeen of plaintiffs’ employees to go out as a means more promptly and effectively to bring plaintiffs to terms. Defendants, as justification for the strike, asserted that plaintiffs interfered with, restrained and coerced their employees in their right of self-organization in the defendant unions, in their right to join and assist the defendant unions, in their right to bargain collectively through the defendant unions, in their right to engage in concerted activities through the defendant unions for the purpose of collective bargaining and other mutual aid and protection and refused to enter into contractual relations with the defendant unions. It was asserted that plaintiffs had been employing workers who were not members of the defendant unions, defendants had been unable to unionize the plaintiffs’ shops and that defendant unions could better improve the lot of plaintiffs’ employees by being the collective bargaining agent than the rival union.

On June 23d hearings upon the petition for investigation and certification were begun by the Board. On December 12, 1939, the Retail Clerks International Protective Association, affiliated with the American Federation of Labor, having absorbed the alleged company Protective Union, filed a petition for its affiliate, Retail Shoe Salesmen’s Union, Local 1115F, A. F. of L., and was permitted to intervene in the proceeding and be substituted in the place of the Protective Union. It is alleged in the complaint and confirmed by the record that a controversy there existed concerning the representation of certain employees, that Retail Clerks International Protective Association claimed to represent a majority of plaintiffs’ employees while defendant Locals 287 and 1268 claimed to represent certain employees and that Retail Clerks International Protective Association requested the Board to investigate such controversy pursuant to the provisions of the New York State Labor Relations Act and certify the name of the representative designated and selected by plaintiffs’ employees for the purpose of collective bargaining. Thereupon, the defendant unions again intervened and deemed it necessary to refile with the Board charges of unfair labor practice in that proceeding in answer to the petition. From then on numerous hearings were had in which the defendants appeared by counsel, made moves to stay the hearing on the petition and called witnesses who testified on the issue raised by their answer.

Summarizing defendants’ position throughout, the charges related only to the propriety of certifying a collective bargaining agent in the pending proceeding for certification and were, substantially and essentially, the answer of the defendant unions to the petition therefor and so recognized. No complaint was ever issued upon the charges nor was effort seriously made to secure the issuance of any such complaint. The contention of the defendants was that Local 1115F was dominated by the plaintiffs, that the plaintiffs were so interfering by coercive and improper measures that it would be unjust to require the holding of an election to determine a representative for collective bargaining, and that a fair election could not be held in view of the conduct of the plaintiffs toward their employees. There was not even a pretense made by defendants that the charges of unfair labor practice were separate and distinct and separately identified from the proceeding instituted by their rival union for investigation and determination of a collective bargaining agent and the Board so understood the situation. The alleged illegal activities of the plaintiffs were . fully litigated before the Board, in fact, that was practically the entire subject of litigation, approximately 1,600 of the 1,800 pages of the record being devoted to testimony and hearings upon that particular question. The Board found that there was no evidence in the record indicating any activities on the part of plaintiffs subsequent to April, 1939, hostile to the free exercise of their employees of their right freely to select a bargaining representative of their own choosing. Nevertheless, upon evidence presented by plaintiffs to the effect that they would not coerce or intimidate their employees, spy upon them, interfere with the formation of any employee organization, encourage membership in a company union, or discourage membership in any union by discrimination or do any acts which would interfere with, restrain or coerce their employees in the exercise of the rights guaranteed them by the act and would agree that their employees should have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion of their employers, the Board caused a notice to that effect to be posted as a condition precedent to the holding of the election. Upon the record as a whole, after giving full weight to the charges and supporting evidence of defendants that, in view of the unfair and coercive conduct of plaintiffs there could be no free and open election, the Board found that there was no circumstance which would interfere with the free exercise of the wishes of plaintiffs’ employees in the election of a collective bargaining agent and the subsequent execution of an employment contract. Since there was evidence to support the finding and it was made according to due process by an agency with jurisdiction to make the determination, after voluntary submission of the parties and issues to the Board, it was binding and conclusive on the parties to the proceeding and upon the courts and, by the terms of the act, conclusive on the employers.

An election was directed and held under the supervision of the Board in accordance with .the provisions of the New York State Labor Relations Act to determine whether [the said employees] desire to be represented for the purposes of collective bargaining by Retail Shoe Salesmen’s Union Local 1115F, A. F. of L., or by the Rétail Shoe Salesmen’s Union Locals 1268 and 287, C. I. 0., or by neither of these organizations,” with the result that of those eligible to vote from the appropriate unit the employees of appellants selected by a vote of more than two to one the first above named local union. No objections were filed to the submission, to the conduct of the election or to the result. In accordance with the provisions of the act, the Board thereupon certified on July 2, 1940, that local as “ the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment,” and the certification remained in effect for one year after its date (Rule 34, General Rules and Regulations of the New York State Labor Relations Board). Thereupon, the appellants and their employees, through the certified agent, duly entered into an agreement dated July 14, 1940, covering wages, hours and conditions of employment, by its terms to remain effective for one year, by which all labor disputes between the employers and their employees then existing were settled and adjusted.

When the contract was executed by appellants, and the duly certified agent of the employees and went into effect, any labor dispute within the provisions of the New York State Labor Law ended and the contract as made was the sole enforceable contract between employers and employees (Cf. Matter of Triboro Coach Corp. v. New York State Labor Relations Board, 286 N. Y. 314). Such a result is the only conclusion possible in consonance and harmony with the public policy of the State as declared in the Labor Relations Act which was to prevent or bring to an end strikes and other forms of industrial strife and unrest and to encourage and effect industrial peace among employers and employees (United Baking Co. v. Bakery & Confectionery Workers’ Union, 257 App. Div. 501). The Legislature did not intend or propose that the procedure provided for that purpose should be meaningless or that it might be flaunted and made meaningless by a minority group of employees, who, themselves, had invoked the procedure to settle their dispute. The intent and purpose of the Legislature was to provide procedure for the disposal of labor controversies which, when adopted and availed of by parties to those controversies, should end disputes, not continue them.

Notwithstanding all those proceedings and the negotiation and execution of the contract by the representative who was duly named as the exclusive agent of all of the employees of appellants, the defendants, the plaintiffs’ complaint sets forth, have continued, are continuing and are threatening to continue to picket and patrol in front of plaintiffs’ stores, and to approach, molest and shout at plaintiffs’ customers and potential customers.” Under the second cause of action, plaintiffs plead a conspiracy by defendants to boycott and picket plaintiffs and to picket and patrol in front of their stores in order to injure plaintiffs and ruin and destroy their business, property and Good Will; to interfere with plaintiffs’ contract with Retail Shoe Salesmen’s Union, Local 1115F, A. F. of L.; to exert pressure upon plaintiffs to breach their aforesaid contract with said Union; to coerce plaintiffs into violating the New York State Labor Relations Act, and to punish plaintiffs and retaliate against plaintiffs for not having entered into a collective bargaining agreement with Defendants Local 287 and Local 1268 ” and that in pursuance thereof they have wilfully and maliciously boycotted plaintiffs and have wilfully and maliciously picketed and patrolled, and continue to picket and patrol in front of plaintiffs’ stores and to approach, molest and shout at plaintiffs’ customers and potential customers, and have wilfully and maliciously, in a misleading manner, created the impression that plaintiffs are unfair to their employees and to organized labor and that a labor dispute exists between plaintiffs and their employees * * * all to plaintiffs’ irreparable damage and detriment, for which plaintiffs have no adequate remedy at law.”

In the affidavits upon which the allegations of the complaint were overwhehningly and without contradiction sustained it appeared that the acts and conduct of the defendants both before and after the election and after the execution of the contract were in continual wilful, intentional and malicious defiance of the jurisdiction of the Labor Relations Board rightfully obtained of any labor dispute that existed between the parties and of the determination and decision of the Board and for the purpose of punishing the plaintiffs, of hurting and crippling and, if possible, of ruining their business, property and good will and of compelling them to violate their contract with their employees entered into honestly, legally and in accord with the provisions and purpose of the Labor Relations Act. In the monthly magazine, the “ Retail Shoe Clerk’s Digest,” the official organ of defendant Local 287, it was said: “ Election or no election, we can thank God that we still will have the right to picket. And this vicious anti-labor shoe company will continue to get a bigger and better picket. As a matter of record, never in the history of our existence have we ever taken a picket off a store until our cause was won. And we don’t intend to remove the Florsheim pickets until our objectives are gained.” In the issue of that magazine in September, 1940, it was said: “ Florsheim strike now more alive than ever * * * The men on the Florsheim Picket Line have quite courageously picketed under all sorts of conditions — the line still holds. Let us now get right behind them. Let’s help advertise to the world that the owners of Florsheim Shoes would rather keep their New York enterprise as an agency for advertising purposes — an expensive loss at that — rather than recognize a bona fide union.” In September, 1940, in another article proceedings before the Labor Board were repudiated and it was said: “ It has become increasingly clear that our fight with the owners of Florsheim Shoes has just begun.” With reference to the jurisdictional dispute, in one article it was said: “It is very essential that our membership do their part in prohibiting the A. F. of L. from gaining a wedge into the retail shoe field.” In written articles as well as in official resolutions defendants urged the establishment and spreading by union members and their friends of a boycott of plaintiffs. Again they referred in one of their written articles to the effect of relentless day-by-day picketing, daily radio broadcasts, mass demonstrations, the cutting of the revenue of the stores and otherwise the injuring of plaintiffs’ business. Mass demonstrations were described where they used placards advertising the Florsheim strike and pamphlets appealing to the public to boycott Florsheim stores. Attempt was made to coerce plaintiffs’ customers to refrain from doing business with them both orally through the pickets and in writing. Plaintiffs were placed on lists unfair to labor. Much of the foregoing done or attempted to be done in writing was done orally by the pickets. Ample evidence is found of a conspiracy to ruin plaintiffs’ business so far as was within defendants’ power. They attempted to create the false impression that a labor dispute existed between the plaintiffs and their employees and their representatives and they represented that all of plaintiffs’ regular employees were out on strike and that the plaintiffs were unfair to organized labor, all of which representations were utterly false. The announced objective was to compel plaintiffs, in spite of the wishes of the great majority of their employees and the execution of the collective bargaining contract, to enter into a closed shop agreement with the defendants and to compel the recognition of the defendants as the sole and exclusive bargaining agent. Similar articles were contained in the “ Shoe Reporter,” the official organ of Local 1268. There were many statements similar to the above, detailed reference to which time and space prohibit here.

On the record here presented it is impossible for the respondents successfully to maintain that any labor dispute ” between plaintiffs and defendants theretofore existing under section 876-a of the Civil Practice Act survived the certification by the Labor Relations Board of the collective bargaining agent for plaintiffs’ employees and the execution of the collective bargaining contract. Nothing in this opinion is designed to interfere with, impede or diminish in any way the right of employees lawfully to strike or engage in other lawful concerted activities or leave plaintiffs’ employ if they so desire, nor do we recede from principles relating thereto laid down in earlier decisions of the court. The action here is to restrain unlawful actions and their threatened continuance not governed by procedure other than a general action in equity (Compare Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150). It was unlawful, upon the record in this case, for the defendants to continue or renew or to threaten to continue picketing of appellants’ shops for the reason that the minority were dissatisfied with the result of the election and with the terms of the contract duly negotiated and entered into between the appellants and the duly certified representative of the employees. The picketing here and its threatened continuance was wilful, malicious, coercive, and accompanied by acts of intimidation. It was unlawful for defendants to conspire and by overt acts to carry such conspiracy into effect under the circumstances and conditions indicated, and to threaten the continuance thereof for the purpose and with the design and effect of injuring and, if possible, of ruining plaintiffs’ business, property and good will. It was unlawful for defendants falsely to represent and to threaten to continue falsely to represent that plaintiffs were unfair to organized labor, that a labor dispute existed between the plaintiffs and their employees and that all of plaintiffs’ employees were out on strike. These and various other unlawful coercive, oppressive and malicious acts of the defendants as shown by the record and their threatened continuance under similar conditions were subject to judicial restraint in an action such as plaintiffs have brought (Interborough Rapid Transit Co. v. Lavin, supra; Busch Jewelry Co. v. United Retail Employees’ Union, supra; Matter of Triboro Coach Corp. v. New York State Labor Relations Board, supra; Opera-on-Tour, Inc., v. Weber, 285 N. Y. 348; Carpenters & Joiners Union of America v. Ritter’s Cafe, 315 U. S. 722).

The decision in the case of Stillwell Theatre, Inc., v. Kaplan (259 N. Y. 405) is clearly distinguishable and is not in point. The policy of the State with reference to settlement of labor disputes or in regard to the methods of selection of a collective bargaining agent had not then been declared by the Legislature as we now find it. Neither section 876-a of the Civil Practice Act nor the Labor Relations Act had then been enacted. Furthermore, in that case the employer voluntarily entered into a contract which was the subject-matter of the case with one union to the exclusion of its rival. There it was found that the picketing was not accompanied by acts of violence, trespass or intimidation.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

The certified question should be answered in the affirmative.

Desmond, J.

(dissenting). It is no function of ours to decide whether defendants’ picketing is unfair or anti-social, or whether attitudes like those taken by defendants tend to promote and prolong industrial strife and make more difficult the achievement of industrial peace. Such questions are for other forums. Our inquiry is this narrow one: Does this complaint state a cause of action for injunctive relief? Narrowing the question even more, we need only examine the pleading to see if the facts it sets forth spell out a labor dispute; for if the controversy, so pleaded, is a labor dispute, then plaintiffs, by failing to allege compliance with section 876-a of the Civil Practice Act, have made it impossible for the courts, obeying the command of that section, to grant them an injunction.

Justifying the issuance of an injunction here, the majority opinion holds that the signing of the contract between plaintiffs and the union theretofore duly certified by the State Labor Relations Board, had the effect of ending the labor dispute previously existing between plaintiffs and their employees. In. this connection we are referred to Matter of Triboro Coach Corp. v. New York State Labor Relations Board (286 N. Y. 314). There is no such holding in that case. Both the majority (286 N. Y. at p. 322) and the minority opinions (286 N. Y. at p. 344) point the other way. All the decisions of this court in parallel situations, for years back, forbid the kind of injunction sought here, and the labor relations statutes of this State (Civ. Prac. Act, § 876-a, and Labor Law, art. 20) have not overruled those cases in any manner whatever.

Strikes involving inter-union rivalry are unfortunate at any time, and certainly not in the public interest in times like these. But this court has for forty years, since National Protective Association of Steam Fitters & Helpers v. Cumming (170 N. Y. 315), uniformly held that such strikes are not illegal. We have flatly and positively held that peaceful and truthful picketing by a union may not be enjoined on the ground that its purpose was to induce or cause, a breach of a contract between an employer and a rival union. (Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405.) In Nann v. Raimist (255 N. Y. 307) we denied the existence of any power in the courts to enjoin announcements by a labor union to the world that another labor union was not an effective representative of the employees, or to enjoin picketing by one union in an effort to win away from another union the allegiance of employees and the favor of the employer and his customers, even when there was no strike in progress. A labor union may strike and picket the premises of an -employer to induce him to employ its members, although that union has no members among his employees. (Exchange Bakery & Restaurant Inc., v. Rifkin, 245 N. Y. 260; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331.) It cannot possibly be claimed that our state anti-injunction statute (Civ. Prac. Act, § 876-a), with its broad definition of “ labor dispute ” and its prohibition of injunctive relief against peaceful picketing, has overruled those cases. The effect of that statute is to prevent courts from enjoining peaceful picketing.” (Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150, 156.) In the Fur Workers case (308 U. S. 522) the United States Supreme Court has decided that the Norris-LaGuardia Act (U. S. Code, tit. 29, § 101, et seq.), the prototype of our section 876-a, deprived the Federal courts of all jurisdiction to enjoin peaceful picketing by a union, even when its successful rival had concluded an agreement with the employer.

Plaintiffs claim that our State Labor Relations Act (Labor Law, art. 20) somehow justifies or authorizes an injunction here. No one contends that this act repealed section 876-a; the two statutes are in pari materia and to be read together. Plaintiffs, in asserting that the procedures established by the Labor Relations Act, when invoked in a labor dispute, have, necessarily, the effect of bringing the dispute to an end, ascribe to the act a coverage much too broad. That act nowhere provides that all industrial strife and dispute are forbidden, once resort is had to the State Labor Relations Board. On the contraiy, it says in so many words that “ nothing in this article shall be construed so as to interfere with, impede or diminish in any way the right of employees to strike or engage in other lawful, concerted activities.” (Labor Law, § 713.) Thus the prohibitions in our decisions, against such injunctions, were reaffirmed — not overruled — by the Labor Relations Act. Such injunctions are still forbidden, by binding precedents of leading cases and by express provisions of statute.

The Legislature, in the statement of Findings and Policy ” (Labor Law, § 700) with which it prefaced the substantive matter of the Labor Relations Act, refers to the then existing inequality of bargaining power as between employer and individual employee, to the denial by some employers to their employees of the right to freedom of organization, to the refusal of some employers to recognize the practice and procedure of collective bargaining, and to the effect of such denials and refusals in leading to strikes, lockouts and other forms of industrial strife. This legislative statement of Findings and Policy ” asserts that protection by law of the right of employees to organize and bargain collectively removes certain recognized sources of industrial strife and unrest.” It is declared by the Legislature to be the public policy of the State to encourage and promote collective bargaining and self-organization of employees, free from coercion or restraint by employers.

To achieve these laudable purposes the Legislature, in the succeeding sections of the Labor Relations Act, set up a Labor Relations Board, described certain unfair labor practices by employers and empowered the Board to investigate and redress such practices. The act further authorized the Board to hold elections to determine who or what should be the bargaining agent of a group of employees, and to order an employer to bargain collectively with the agent so elected. So far, and no further, did the Legislate^ go in conferring power on the Board. The closed shop agreement made with the bargaining agent certified by the Board has no more validity, standing or effect than a similar agreement made with a bargaining agent not certified but otherwise authorized, and, as we have pointed out above, such a closed shop agreement does not justify an injunction against peaceful and truthful picketing by the unsuccessful union.

Nor did the Labor Board here, in certifying as a bargaining agent the union successful at the election, attempt to hand down a judgment determining the whole labor dispute between plaintiffs and their employees. The Labor Board issued no injunction against defendants. Acting within the precisely fixed limits of its jurisdiction, the Board certified that another union had been chosen by the majority of plaintiffs’ employees as bargaining agent for all those employees. Then and there the Labor Board’s powers came to a full stop. Defendants’ guaranteed rights of peaceful persuasion and public statement of its claims and purposes continued as before. y:

This court has said so often that it will do no harm to say it again, that the right of workmen to organize and agitate, peacefully, to better their conditions, will not be destroyed or disminished but will be protected by the courts despite incidental injury to an employer’s business. (Stillwell Theatre, Inc., v. Kaplan, supra, at p. 409.) “ It is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.” (Stillwell Theatre, Inc., v. Kaplan, supra, at p. 412.)

In voting to affirm the Appellate Division and to refuse an injunction here, we are not put to the necessity of justifying, or excusing, the conduct of the defendants. Perhaps they should have accepted in good faith the results of the election, let the new contract have a fair trial, swallowed their defeat, and put away their picketing signs. But it is a right, and not manners, or sportsmanship, that we are concerned with. The right to picket peacefully is guaranteed by the Constitution of the United States as an incident to freedom of speech. Freedom of speech * * * is the matrix, the indispensable condition, of nearly every other form of freedom.” (Palko v. Connecticut, 302 U. S. 319, 327.)

The certified question should be answered in the negative, and the order of the Appellate Division affirmed, with costs.

Finch, Lewis and Conway, JJ., concur with Rippey, J.; Desmond, J., dissents in opinion in which Lehman Ch. J., and Loughran, J., concur.

Ordered accordingly.