author: Fuld, J.

text:
    In the Matter of Rebecka Peters, Individually and on Behalf of All Others Similarly Situated Who Are Members of the Williamsburg Community Association, Appellant, against New York City Housing Authority, Respondent. Joseph Serata et al., Individually and as Members of the International Workers Order, Inc., and as Tenants of the New York City Housing Authority, Interveners-Appellants.
    Argued June 1, 1954;
    decided July 14, 1954.

      Paul L. Ross for petitioner-appellant, and Royal W. France for interveners-appellants.
    I. The Gwinn Amendment, the Authority resolution and the Attorney General’s regulations and procedures for designating organizations, on their face and as applied to appellants, are offensive to due process, both substantively and procedurally. (Wieman v. Updegraff, 344 U. S. 183; Anti-Fascist Comm. v. McGrath, 341 U. S. 123; Palko v. Connecticut, 302 U. S. 319; Southern Ry. Co. v. Virginia, 290 U. S. 190; Ohio Bell Tel. Co. v. Commission, 301 U. S. 292; Chicago Junction Case, 264 U. S. 258; Wong Yang Sung v. McGrath, 339 U. S. 33; Moore v. Dempsey, 261 U. S. 86; Tumey v. Ohio, 273 U. S. 510; Schwab v. Coleman, 145 F. 2d 672; United Public Workers v. Mitchell, 330 U. S. 75.) II. The Gwinn Amendment and the Housing Authority Resolution on their face, and as applied to petitioner and interveners, are unconstitutional because they abridge their rights, privileges and immunities as secured to them by the First and Fourteenth Amendments of the Federal Constitution. (Near v. Minnesota, 283 U. S. 697; United States v. Carolene Products Co., 304 U. S. 144; Board of Educ. v. Barnette, 319 U. S. 624; Adler v. Board of Educ., 342 U. S. 485; Garner v. Los Angeles Bd., 341 U. S. 716; Bailey v. Richardson, 182 F. 2d 46, 341 U. S. 918; Communications Assn. v. Douds, 339 U. S. 382; Bowe v. Secretary of Commonwealth, 320 Mass. 230.) III. The Gwinn Amendment and the Authority’s resolution constitute a bill of attainder and as such violate section 9 of article I of the Federal Constitution. (United States v. Lovett, 328 U. S. 303; Cummings v. State of Missouri, 4 Wall. [U. S.] 277; Ex Parte Garland, 4 Wall. [U. S.] 333.)

      Osmond K. Fraenkel and Herbert Monte Levy for American Civil Liberties Union, amicus curiœ, in support of appellant’s and interveners-appellants ’ position.
    I. The amendment and regulations pursuant thereto violate appellant’s rights to freedom of speech and association guaranteed by the First and Fourteenth Amendments of the United States Constitution, in the absence of any substantive dangers that the United States Congress has a right to prevent, and further in the absence of any clear and present substantive danger that the said Congress has a right to prevent. (Dennis v. United States, 341 U. S. 494; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Communications Assn. v. Douds, 339 U. S. 382; De Jonge v. Oregon, 299 U. S. 353; Thomas v. Collins, 323 U. S. 516; Kunz v. New York, 340 U. S. 290.) II. They violate the due process of law guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, in that they lay down a rule of conclusive guilt established by mere association without even any requirement that the member of the organization have knowledge of the alleged subversive purposes of the organization, which rule is arbitrary. (Wieman v. Updegraff, 344 U. S. 183; Garner v. Los Angeles Bd., 341 U. S. 716; Adler v. Board of Educ., 342 U. S. 485; Gerende v. Election Bd., 341 U. S. 56.) III. They further violate that due process of law guaranteed to the plaintiffs by the Fifth and Fourteenth Amendments to the United States Constitution in that the organizations have been listed by the Attorney General without adequate standards upon which to base such listings. (Anti-Fascist Comm. v. McGrath, 341 U. S. 123.) IV. They further violate that due process of law required by the Fifth and Fourteenth Amendments to the United States Constitution in that they bear no reasonable relation to the public welfare. (Garner v. Los Angeles Bd., 341 U. S. 716.) V. They subject the plaintiffs to the commission of a possible crime without clearly and precisely defining the conduct which constitutes the crime, in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution. (United States v. Evans, 333 U. S. 483; Winters v. New York, 333 U. S. 507; Kunz v. New York, 340 U. S. 290.) VI. They constitute an improper delegation of legislative powers to administrative agencies (to wit: the United States Attorney General and local housing authorities) without setting forth adequate standards, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. (Douglas v. Noble, 261 U. S. 165; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531; Yick Wo v. Hopkins, 118 U. S. 356.) VII. They constitute a bill of attainder in violation of section 8 of article I of the United States Constitution. (United States v. Lovett, 328 U. S. 303; Ex Parte Garland, 4 Wall. [U. S.] 333.)

      John P. McGrath and Martin D. Jacobs for respondent.
    I. Neither petitioner Peters, who does not allege that she is a member of any designated organization, nor the tenants, who are former members of a dissolved organization, have any standing to challenge the constitutionality of the Gwinn Amendment or the resolution implementing it. (Anti-Fascist Comm. v. McGrath, 341 U. S. 123; Barrows v. Jackson, 346 U. S. 249; Long v. Somervell, 175 Misc. 119, 261 App. Div. 946; Adler v. Board of Educ., 342 U. S. 485.) II. Congress, concerned with the danger of the use of the housing projects as a “ breeding ground” or “cell” for the organization and activities of subversive groups, did not, in extending its bounty, act arbitrarily in withholding the benefits of occupancy from members of organizations determined by the Attorney General “ after appropriate consideration and determination ” to be subversive, an administrative hearing and a judicial remedy being available to an organization to contest any improper designation. (Bailey v. Richardson, 182 F. 2d 46; Communications Assn. v. Douds, 339 U. S. 382.) III. Congress, in appropriating funds and extending its bounty, was vested with a broad discretion in determining those who should enjoy the benefits of the Federally assisted housing program. (Rok v. Legg, 27 F. Supp. 243; People v. Crane, 214 N. Y. 154.) IV. There was a reasonable relationship between the dangers apprehended by Congress and the condition imposed in appropriating funds for subsidized low-rent housing. It did not act arbitrarily in conditioning occupancy on nonmembership in subversive organizations. (Thompson v. Wallin, 301 N. Y. 476; Garner v. Los Angeles Bd., 341 U. S. 716; United States v. Schneider, 45 F. Supp. 848.) V. The use by Congress of a list of subversive organizations, designated by the Attorney General in determining whether the benefits of the Federally assisted housing program should be withheld, does not offend due process especially since an administrative remedy, as well as judicial review, is available to contest any improper designation. (Garner v. Los Angeles Bd., 341 U. S. 716; Gerende v. Election Bd., 341 U. S. 56; Wieman v. Updegraff, 344 U. S. 183; Bourjois, Inc., v. Chapman, 301 U. S. 183; Bowles v. Willingham, 321 U. S. 503; Fahey v. Mallonee, 332 U. S. 245; Yakus v. United States, 321 U. S. 414; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164; Southern Ry. Co. v. Virginia, 290 U. S. 190.) VI. The resolution adopted by the Authority does not infringe any rights of freedom of speech or assembly or privileges secured by the First and Fourteenth Amendments. Nor is it a bill of attainder. (Garner v. Los Angeles Bd., 341 U. S. 716; United States v. Lovett, 328 U. S. 303; Thompson v. Wallin, 301 N. Y. 476.)

      George S. Leonard, Acting Assistant Attorney General, Samuel D. Slade and Benjamin Forman, Attorneys, Department of Justice, for United States of America, amicus curies, in support of respondent’s position.
    I. Recipients of the benefits of subsidized low-cost housing cannot question statutory conditions as to their eligibility. (Fahey v. Mallonee, 332 U. S. 245; Daniels v. Tearney, 102 U. S. 415; Grand Rapids & Indiana Ry. Co. v. Osborn, 193 U. S. 17; Wall v. Parrot Silver & Copper Co., 244 U. S. 407; St. Louis Co. v. Prendergast Co., 260 U. S. 469; Booth Fisheries v. Industrial Comm., 271 U. S. 208; Hurley v. Commission of Fisheries, 257 U. S. 223; Buck v. Kuykendall, 267 U. S. 307; Shepard v. Barron, 194 U. S. 553; United Co. v. Railroad Comm., 278 U. S. 300.) II. Assuming that appellants herein are not estopped to contest Housing Act conditions, the order of the Special Term cannot be reinstated since it was based upon factual and legal premises no longer in existence at the time the decision was rendered. (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Gibbes v. Zimmerman, 290 U. S. 326; Brownlow v. Schwartz, 261 U. S. 216; State Tax Comm. v. Van Cott, 306 U. S. 511.) III. Assuming that the validity of the Gwinn Amendment is to be measured by Executive Order No. 10450, the rules of procedure issued thereunder by the Attorney General cannot be challenged by appellants. (Federation of Labor v. McAdory, 325 U. S. 450; Alma Motor Co. v. Timken Co., 329 U. S. 129; Rescue Army v. Municipal Court, 331 U. S. 549; Aetna Life Ins. Co. v. Haworth, 300 U. S. 227; United Public Workers v. Mitchell, 330 U. S. 75; Lichter v. United States, 334 U. S. 742; Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Macauley v. Waterman S. S. Corp., 327 U. S. 540; Federal Power Comm. v. Arkansas Power & Light Co., 330 U. S. 802; Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752; Securities & Exch. Comm. v. Otis & Co., 338 U. S. 843; Gusik v. Schilder, 340 U. S. 128; Public Service Comm. v. Wycoff Co., 344 U. S. 237; Franklin v. Jonco Aircraft Corp., 346 U. S. 868; Jonco Aircraft Corp. v. Franklin, 114 F. Supp. 392; Public Utilities Comm. v. United Air Lines, 346 U. S. 402.)
   Fuld, J.

Included in the Independent Offices Appropriations Act of 1953 (66 U. S. Stat. 403) was a provision which has become known as the Gwinn Amendment. It directed, in part, that

“ no housing unit constructed under the United States Housing Act of 1937, as amended, shall be occupied by a person who is a member of an organization designated as subversive by the Attorney General: Provided further, That the foregoing prohibition shall be enforced by the local housing authority ”.

Several months after the enactment of the Amendment, respondent New York City Housing Authority, acting pursuant to regulations issued by the United States Public Housing Administration, adopted a resolution providing that “No applicant shall be admitted to, and no tenant shall. be permitted to continue to reside in * * * a federally-aided project ”, unless the applicant or tenant has signed a certificate to the effect that neither he nor any other occupant of the unit “ is a member of an organization designated as subversive by the Attorney General ”. And, shortly thereafter, on January 14,1953, the Authority sent a copy of the required certificate to petitioner Peters, who lives in the Williamsburg Houses Project, and requested her to sign it. The certificate, entitled “ Certification of Nonmembership in Subversive Organizations ”, in part, recited, “ I hereby certify that I am not a member of any of the organizations listed in the document entitled Consolidated List, Dated November 10,1952, of Organizations Designated by the Attorney General of the United States As Within Executive Order No. 9835 ’, attached hereto ”. The list “ attached ” to the certificate sets forth the names of 194 organizations.

After the Authority had adopted the resolution, and after it had requested that the certificate be signed and advised that a nonsigning tenant would be evicted, petitioner commenced this article 78 proceeding — on behalf of herself and “ all others similarly situated who are members of the Williamsburg Community Association ” — to annul the resolution and enjoin its enforcement. The petition, in addition to asserting that petitioner had refused to sign the certificate and was, therefore, threatened with eviction, alleges that the action of the Authority 6 £ violates the rights of the petitioner guaranteed by the Federal Constitution ”, in five enumerated respects, and that the Authority’s action is £< arbitrary, capricious and unreasonable.” While the proceeding was pending at Special Term, appellants Serata, Dore and Feldman were permitted to intervene on allegations that they, too, are tenants of the Authority, residing in either the Bed Hook Housing Project or the Kingsboro Housing Project Unlike petitioner, who does not allege membership in any organization listed by the Attorney General, interveners assert that they are members of the International Workers Order, an organization on that official’s list since November, 1947 (Code of Fed. Reg., tit. 5, Appendix A, pp. 200-201; 13 Federal Begister 1471).

The court at Special Term, Kings County, sustained the petition and annulled the Authority’s resolution on the ground that, in the compilation of the Attorney General’s list, the requirements of due process had been violated. The Appellate Division modified the order and dismissed the proceeding, holding that, in view of later executive and administrative action, the defects noted at Special Term must be deemed cured.

For the reasons set forth, we do not reach those questions.

It is well settled that issues of constitutionality should not be decided before they need be. (See Lynbrook Gardens v. Ullmann, 291 N. Y. 472, certiorari denied 322 U. S. 742; Anti-Fascist Committee v. McGrath, 341 U. S. 123, 136; Rescue Army v. Municipal Court, 331 U. S. 549, 569; Ashwander v. Valley Authority, 297 U. S. 288, 347; Light v. United States, 220 U. S. 523, 538; Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175, 193; Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 245; Narragansett Elec. Lighting Co. v. Sabre, 51 R. I. 37, 42.) As the United States Supreme Court expressed it in the Rescue Army case (supra, 331 U. S. 549, 569), " constitutional issues affecting legislation will not be determined * * * in advance of the necessity of deciding them; in broader terms than are required by the precise facts to "which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; * * * or if a construction of the statute is fairly possible by which the question may be avoided.”

So, here, since study of the record reveals at least two non-constitutional grounds upon which the case might be disposed of, we refrain at this stage from passing on the constitutional issues.

As to the first ground. It may be that the Gwinn Amendment did not empower the Authority to seek or demand a certificate of nonmembership from petitioner or, indeed, from any other tenant or occupant of Williamsburg Houses. The Authority has applied the Amendment to every “ federally-aided project ” (Resolution of Authority, § 1), a term defined in section 4 of the resolution as any project of the Authority receiving financial assistance from the Federal Government or any project leased by the Authority from the Federal Government.” However, the Amendment speaks only of housing units “ constructed under the United States Housing Act of 1937 ”. And it is not unlikely that Congress intended that the Amendment have only this limited application, for, in the course of Senate discussion of the measure, one of the Senators specifically called to the attention of his colleagues the fact that the Amendment “ applies to less than 5 percent of the total [federal] housing program ” (98 Congressional Record 8908, per Senator Maybank).

While it is undisputed that Williamsburg Houses is a “ federally-aided project,” as defined by the Authority, the record is devoid of any proof that it was “ constructed under ” the Housing Act of 1937. Petitioner does, it is true, allege that it was so constructed, hut her allegation, unsupported by any evidence, is offset by the affidavit of respondent’s chairman which, flatly contradicting her, asserts that it was not, that, while it was leased to respondent by the United States Public Housing Administration, it was " constructed * * * apart from the United States Housing Act of 1937".

What motivated the parties, particularly petitioner, to take positions contrary to their seeming interest we do not know. We do know, and we do hold, however, that it is pointless and worse to determine whether the Authority may, consistent with the Constitution, evict petitioner for failure to sign the requested certificate, if neither the Gwinn Amendment nor any other statute empowered the Authority to require such a certificate from tenants or occupants of Williamsburg Houses. And, although the constitutionality of the Authority’s resolution may be a question of considerable interest to petitioner, if it could have no impact upon her, nor under any circumstances affect her, the court may not, despite the allegations of her pleading, consider or pass upon it.

The case should, therefore, be remitted to Special Term, so that the facts may be sifted and evaluated and the litigants given an opportunity to argue the applicable law. It may be that the Williamsburg Project is, in fact, encompassed by the Gwinn Amendment, or that, even if the Authority went beyond what was allowable under that statute, there was some other source of power for its action. In such event, if there be no other threshold obstacle, the constitutional questions would then be ripe for consideration and decision.

As to the second ground. It also appears that the Authority may have required petitioner and others to disavow membership in organizations other than those — to use the terms of the Gwinn Amendment — designated as subversive by the Attorney General ”. On July 5, 1952, when Congress enacted the Gwinn Amendment, the Attorney General had, for four and a half years (13 Federal Register 1471), been furnishing the Loyalty Review Board of the United States Civil Service Commission with a list of organizations, in accordance with Executive Order 9835 (Code of Fed. Reg., tit. 3, 1947 Supp., p. 129; 12 Federal Register 1935, 1938). And, for almost four years, the Attorney General had, in compiling that list, broken it down into six classes or categories, only one of which was entitled subversive ” (Code of Fed. Reg., tit. 5, 1952 Supp., pp. 123, 126; 13 Federal Register 6135, 6137, 6138):

1. “ Totalitarian ”
2. “ Fascist ”
3. Communist ”
4. “ Subversive ”
5. Organizations Which Have ‘ Adopted a Policy of Advocating or Approving the Commission of Acts of Force and Violence to Deny Others Their Rights Under the Constitution of the United States.’ ”
6. Organizations Which ‘ Seek to Alter the Form of Government of the United States by Unconstitutional Means. ’ ’ ’

Some organizations appeared in more than one class, a duplication made necessary by the fact that, in the view of the Attorney General, each category “ must be takén to be independent and mutually exclusive of the others ” (Code of Fed. Reg., tit. 5, Appendix A, p. 203; 13 Federal Register 6137). But, despite the duplication and although more than 190 different organizations appeared on the list, only twelve had been designated as “ subversive ” when the Gwinn Amendment was passed (Code of Fed. Reg., tit. 5, 1952 Supp., p. 126; 16 Federal Register 12214), and only thirteen had been so named by the time the Authority moved to enforce it (Code of Fed. Reg., tit. 5, 1952 Supp., p. 126; 17 Federal Register 6241).

Since the Attorney General’s list was a matter of public and official record, Congress, in legislating with respect to organizations " designated as subversive by the Attorney General, ’ ’ may, it is reasonable to assume, have intended to refer only to those specifically designated by the Attorney General as “ subversive ”. The record indicates, however, that the Authority, though presuming to act in accordance with the Gwinn Amendment, has insisted that petitioner and other tenants disaffirm membership, not in a mere twelve or thirteen organizations, but in any and every group appearing on the Attorney General’s list, no matter what the category. The certificate furnished by the Authority — which petitioner was required to sign in its . existing form, without altering it or substituting anotherrecited that “ I hereby certify that I am not a member of any of the organizations listed in the document * * * attached hereto.” And the “ attached” document, entitled “ Consolidated List, Dated November 10, 1952, of Organizations Designated by the Attorney General of the United States As Within Executive Order No. 9835 ”, simply sets out in alphabetical order every one of the 194 organizations named by the Attorney General, without any indication as to whether they were labelled “subversive,” “fascist,” “totalitarian” or something else. So far as the record discloses, therefore, there was no way by which a tenant, reading the list, could discern which were the organizations designated by the Attorney General as subversive and which were the many otherwise described.

Available data may reveal that the Authority did only what was allowed by the Gwinn Amendment. And, although the Authority, has disclaimed reliance on any other statute — asserting as it does in its answer that its action was solely under the Gwinn Amendment and " not taken * * * pursuant to any statute of the State of New York or on its own initiative ” — it may be that here, too, some further source of power existed for its resolution and other action. However, these are questions that we cannot decide without more facts than those in the record before us. They are matters to be explored on remission, where the facts can be unraveled and the essential statutes, executive orders and administrative rulings analyzed and evaluated. Again, we decide merely that, until there is some showing that the Authority was empowered by the Gwinn Amendment to do what the record suggests it did, it would be improper and unwise to determine whether or not that statute or the action of the Authority, professedly taken under it, was constitutional and valid.

Petitioner, in seeking relief, has pleaded and relied almost exclusively on provisions of the Federal Constitution. In view of that, if, upon remission, the court at Special Term concludes that the Authority exceeded its statutory powers, it should also consider whether it might not be more appropriate to dismiss the petition than to grant the relief sought. And, in that event, it is for Special Term to consider, in the first instance, what effect a dismissal of the original petition would have upon the intervening petitioners.

The order of the Appellate Division should be reversed and the matter remitted to Special Term for proceedings not inconsistent with this opinion, with costs to abide the event.

Lewis, Oh. J., Conway, Desmond, Dye, Fboessel and Van Yoobhis, JJ., concur.

Order reversed, etc.

      . And, on the affirmative side, there is authority for the conclusion that “ Williamsburg and Harlem River Houses were built under the NIRA program.” (1953 Directory of Large Seale Rental Housing in New York City, published by the Citizens’ Housing and Planning Council of New York, Inc., p. 23.)

      . Executive Order 10450 (Code of Fed. Reg. tit. 3, 1953 Supp., pp. 72, 76; 18 Federal Register 2489) revoked Executive Order 9835, but, by express incorporation of part of the revoked order, perpetuated the power of the Attorney General to list organizations which he deemed totalitarian, fascist, subversive, etc.

      . The resolution adopted by the Authority specifically states in section 1 (subd. [b]) that the tenant or appheant is to sign the certificate “ at the time and in the form required by the Authority ”.


source: Caselaw Access Project

author:
      Dye, J.
      Desmond, J.
      Fuld, J. Yav Voorhis, J.

license: Public Domain

text:
    Sydney J. Wood, Doing Business under the Name of 53rd Street Subway Liquor Store, Respondent, v. John M. O’Grady, Individually and as President of Wine and Liquor Store Employees Union, Local 122, A. F. of L., et al., Appellants.
    Argued April 14, 1954;
    decided October 22, 1954.

      Jacob Friedberg for appellants.
    I. Picketing conducted in a lawful manner, for a lawful objective, will not be enjoined. (Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307; Stillwell Theatre v. Kaplan, 259 N. Y. 405; Carl Ahlers, Inc., v. Papa, 272 App. Div. 905; May’s Furs & Ready-to-Wear v. Bauer, 282 N. Y. 331; La Manna v. O’Grady, 278 App. Div. 77; Thornhill v. Alabama, 310 U. S. 88; Drivers Union v. Meadowmoor Co., 312 U. S. 287; A. F. of L. v. Swing, 312 U. S. 321; Carpenters Union v. Ritter’s Cafe, 315 U. S. 722; Bakery Drivers Local v. Wohl, 315 U. S. 769.) II. A “ labor dispute ” within the provision of section 876-a of the Civil Practice Act exists upon the facts herein. (Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union, 288 N. Y. 188.) III. The constitutional right of a union to picket is not lost because of an isolated incident of abuse. (Nann v. Raimist, 255 N. Y. 307; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; J. H. & S. Theatres v. Fay, 260 N. Y. 315; Apex Hosiery Co. v. Leader, 310 U. S. 469; Reynolds v. Everett, 144 N. Y. 189; Sachs Quality Furniture v. Hensley, 269 App. Div. 264.)

      Wilbur Daniels and Morris P. Glushien for New York State Federation of Labor, amicus curiae, in support of appellants’ position.
    I. The industrial controversy here is a “ labor dispute ” as defined by section 876-a of the Civil Practice Act. Since the plaintiff did not comply with the requirements of section 876-a of the Civil Practice Act, the injunction below was improperly granted. (May’s Furs & Ready-to-Wear v. Bauer, 282 N. Y. 331, 282 N. Y. 804; Drivers’ Union v. Lake Valley Co., 311 U. S. 91; Metropolis Country Club v. Lewis, 202 Misc. 624, 280 App. Div. 816; Lauf v. E. G. Shinner & Co., 303 U. S. 323; New Negro Alliance v. Grocery Co., 303 U. S. 552; Duplex Co. v. Deering, 254 U. S. 443; American Foundries v. Tri-City Council, 257 U. S. 184; United States v. Hutcheson, 312 U. S. 219; Hunt v. Crumboch, 325 U. S. 821.) II. If a lawful labor objective is a requisite for a “ labor dispute ” under section 876-a of the Civil Practice Act, the peaceful picketing for organizational and publicity purposes under the circumstances of this case was for a lawful labor objective. (Opera on Tour, Inc., v. Weber, 285 N. Y. 348; American Guild of Musical Artists v. Petrillo, 286 N. Y. 226; Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150;
      Florsheim Shoe Store Co. v. Shoe Salesmen’s Union, 288 N. Y. 188; Dinny & Robbins v. Davis, 290 N. Y. 101; Baillis v. Fuchs, 258 App. Div. 919, 283 N. Y. 133; Edjomac Amusement Corp. v. Empire State Motion Picture Operators’ Union, 273 N. Y. 647; National Labor Relations Bd. v. Federbush Co., 121 F. 2d 954.) III. Peaceful picketing for organizational and publicity purposes is protected by the Constitutions of the United States and of New York State. (Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106; Senn v. Tile Layers Union, 301 U. S. 468; Drivers Union v. Meadowmoor Co., 312 U. S. 287; Building Service Union v. Gazzam, 339 U. S. 532; Plumbers Union v. Graham, 345 U. S. 192; Teamsters Union v. Hanke, 339 U. S. 470; Hughes v. Superior Court, 339 U. S. 460; Giboney v. Empire Stor. Co., 336 U. S. 490; Cafeteria Union v. Angelos, 320 U. S. 293; Hotel Employees’ Local v. Board, 315 U. S. 437.)

      Julius Kass, Maurice H. Goetz, Martin P. Dillon and Clifford D. Reznicek for respondent.
    I. The union’s picketing of plaintiff’s store and its collateral actions at other establishments in support thereof should be enjoined: because its activities during the past two years have overrun the boundaries of organizational picketing; and because its activities reflect the union’s intent and object to coerce plaintiff, by means of economic pressure, into committing an illegal act. (Goodwin’s, Inc., v. Hagedorn, 303 N. Y. 300; Way Baking Co. v. Teamsters & Truck Drivers Local 164, A. F. of L., 335 Mich. 478, 345 U. S. 957; Building Service Union v. Gazzam, 339 U. S. 532; Metropolis Country Club v. Lewis, 202 Misc. 624, 280 App. Div. 816; Haber & Fink v. “Jones”, 277 App. Div. 176.) II. Picketing is merely a phase of communication and not the constitutional equivalent of free speech. Therefore, if it has an illegal purpose, it can be enjoined. (Thornhill v. Alabama, 310 U. S. 88; A. F. of L. v. Swing, 312 U. S. 321; Drivers Union v. Meadowmoor Co., 312 U. S. 287; Bakery Drivers Local v. Wohl, 315 U. S. 769; Carpenters Union v. Ritter’s Cafe, 315 U. S. 722; Giboney v. Empire Stor. Co., 336 U. S. 490; Hughes v. Superior Court, 339 U. S. 460; Teamsters Union v. Hanke, 339 U. S. 470; Building Service Union v. Gazzam, 339 U. S. 532; Plumbers Union v. Graham, 345 U. S. 192.) III. There is no labor dispute involved in this case. (Bond Stores v. Turner, 258 App. Div. 769.)
   Dye, J.

In this appeal we deal with the propriety oran injunction issued by the court below to restrain peaceful organizational picketing because such picketing included “ an unlawful objective * * * by exerting economic pressure ”.

Section 876-a of the Civil Practice Act (L. 1935, ch. 477) declares, as a matter of State policy, that injunctions may not issue “ in any case involving or growing out of a labor dispute ” except after a hearing and after a finding of fact in the language of the statute that ‘ ‘ unlawful acts have been * * * threatened or committed ” which “ will be executed or continued unless restrained ” (subd. 1, par. [a]) causing “ substantial and irreparable injury to complainant’s property ” (subd. 1, par. [b]). Even then, the restraint must not interfere with certain recognized rights, particularly the publication of the facts in any dispute by picketing not involving fraud, violence or breach of the peace ” (subd. 1, par. [f], cl. [5]). The Legislature, in carefully chosen language, defined a labor dispute as one between “ persons who are engaged in the same industry, trade, craft or occupation” (subd. 10, pars, [a], [b]) which “ includes any controversy concerning terms and conditions of employment * * * or representation * * * or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee ” (subd. 10, par. [c]).

The labor policy thus embedded in our statutory law stated nothing new or revolutionary. Over a long period of years this court has painstakingly evolved a pattern of decisional law repudiating the use of an injunction to restrain peaceful picketing in labor disputes which is too well known to warrant repeating here (National Protective Assn. v. Cumming, 170 N. Y. 315; Interborough R. T. Co. v. Lavin, 247 N. Y. 65, 74; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315; Nann v. Raimist, 255 N. Y. 307; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260).

In such a setting, it naturally followed that when the constitutionality of section 876-a was challenged, it would be upheld (Goldfinger v. Feintuch, 276 N. Y. 281) and that it would be applied, even though the disputants do not stand in relation of - employer and employee (May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331), and that if the acts of the unions “ have any reasonable connection with wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection from labor abuses, then the acts are justified ” (Opera on Tour, Inc., v. Weber, 285 N. Y. 348, 355).

The long history of controversial labor relations in this State is replete with instances of inconvenience to the employer, but it does not follow that at this late date such a consequence without more can be labeled an unlawful objective ”.

As we view this record, the incidents complained of do not constitute an unlawful objective but at most amount to no more than the consequences frequently accompanying peaceful picketing in a labor dispute.

' Briefly stated, the evidence establishes the plaintiff as the sole licensee and proprietor of a retail liquor store doing business under the name and style of 53rd Street Subway Liquor Store located at 135 East 53rd Street, New York City; that he employs, among others, three sales clerks. The defendant, Wine and Liquor Store Employees Union, Local 122, is an affiliate of the American Federation of Labor and represents, as bargaining agent, wine and liquor store clerks in New York City. For convenience, the plaintiff and defendant will hereinafter be referred to as “ employer ” and “ union ” respectively.

Beginning in October, 1951, the union undertook a campaign to enlist nonunion liquor store clerks into its membership which, we may assume, was preparatory to representing them as bargaining agent in negotiating with employers for employment contracts. Preliminary to commencement of solicitation, union representatives went to the employer, as was their custom, and advised him of the proposed organization campaign and their intention to solicit his sales clerks to join their union. They did not at that time or any other time present him with a collective contract or demand that he sign such a contract with them. The employer not only rejected the proposal for a union shop, but stated affirmatively that he was not interested in the union and if any of his workers signed up to join they are not going to work in this store ” and he would put them out on the street with you ”. Under all the circumstances, it is clear that a statutory labor dispute is present here.

Picketing commenced October 20, 1951, the picket line consisting of one or two pickets stationed in front of the employer’s store and carrying a placard bearing the legend: “ The employees of this store are non-union. Please do not patronize this non-union store. We are members of the American Federation of Labor, Local 122 of A. F. L.” The truthfulness of this legend is not challenged. The record is barren of any instance of violence or disorder on the part of the pickets but does contain testimony that the employer frequently indulged in loud and abusive talk reflecting on the integrity of the union and the individual pickets; that he broomed the sidewalk in such a way as to scatter the sweepings around the feet of the pickets and, with an upward gesture toward the pickets, was heard to say in a loud voice to be overheard by persons in the vicinity, “ I have to get rid of this filth ”. There is other evidence not denied by Wood that the,employees were coerced with threats of dismissal into not joining the union. Hone of the workers joined, although one at least indicated a favorable attitude but refrained, due to the fear of dismissal.

Implicit in the decision at Special Term is the finding that by such comment and attitude the employer attempted directly or indirectly, to interfere with, restrain or coerce employees in the exercise of [their] rights ” (Labor Law, §§ 703-704), which, under all the circumstances of this case was enough to warrant that court in denying an injunction.

To justify the contention that the picketing was in fact directed against him, the employer adduced testimony to show that wholesale deliveries of merchandise to his store were cut off because their truck drivers refused to cross the picket line with the result that the employer had to get his merchandise from the wholesaler or warehouse himself which, in any view, amounts to no more than personal inconvenience, for it was readily admitted that at all times the shelves of his store were “ loaded ”. Furthermore, no proof was offered showing that the employer’s customers were in any way or at any time intimidated, molested or interfered with, nor did the employer attempt to prove any loss of patronage or business profits. Such showing fails to establish the “ substantial and irreparable injury to complainant’s property ” essential to justify the issuance of an injunction (Civ. Prac. Act, § 876-a, subd. 1, par. [b] ; Florsheim Shoe Store Co. v. Retail Shoe Salesmen’s Union, 288 N. Y. 188; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150; Remington Rand, Inc., v. Crofoot, 279 N. Y. 635).

It should be mentioned that for a few days during March, 1953, the union picketed the Reilly Storage Warehouse Company located at 149th Street and Third Avenue where liquor consigned to the employer was stored. When the pickets were withdrawn, for a short time at least, lookouts were posted, but all such activities were voluntarily discontinued long before commencement of the within suit. Nothing was shown to indicate that the union intended to resume picketing at the warehouse in the future. This affords no evidentiary basis for restraining by injunctive means the picketing being peacefully conducted in front of the employer’s retail store (cf. Dinny & Robbins, Inc., v. Davis, 290 N. Y. 101; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, supra).

Prior to the commencement of the within suit and on or about October 30,1951, the employer filed a petition with the New York State Labor Relations Board (State Labor Relations Act [Labor Law, art. 20], § 705) seeking an election to determine whether the union was an authorized bargaining agent. After a hearing, the petition was dismissed for the reason that (1) the union had not claimed to and did not represent the workers and had never demanded of or submitted a collective contract to the employer (cf. Matter of Lombardi v. Cooks, Countermen, Soda Dispensers & Assistants Union, 14 S. L. R. B. No. 100; Matter of Minsang Wet Wash Co., 14 S. L. R. B. No. 130), and (2) 'that the union was merely engaged in an organizational activity (Matter of Wood v. Wine & Liq. Store Employees Union, 15 S. L. R. B. No. 23, Case No. SEE-20870). Following such dismissal, the employer commenced an action for injunctive relief to restrain the picketing altogether. This too resulted in a dismissal (Wood v. O’Grady, N. Y. L. J., April 28, 1952, p. 1682, col. 2).

The Special Term, in dismissing the within complaint on the merits, made findings of fact to support its conclusion that the union’s picketing in front of plaintiff’s store was peaceful and unaccompanied by violence and was for a lawful purpose, namely, " for the purpose of organizing the employees of the plaintiff’s store, and to call the public’s attention to the fact that the plaintiff’s is a non-union store, and to ask the public to patronize union stores ”. The Special Term pointed out that, Assuming that a labor dispute is not involved and that therefore the complaint is not required to comply with the provisions of section 876-a of the Civil Practice Act, plaintiff nevertheless has failed to establish that he is entitled to an injunction restraining peaceful picketing. ’ ’

Upon appeal to the Appellate Division, First Judicial Department, that court unanimously reversed, making new findings to support its conclusion of law that the picketing complained of is for an unlawful objective in that it seeks to coerce the employer into signing a contract with Respondent union by exerting economic pressure against the employer to force him to violate the State Labor Relations Act by compelling the employees to join Respondent union against their will or, in the alternative, to drive plaintiff out of business ” which it deemed violative of sections 703-704 of the Labor Law in that it was forcing the employer to contract with a union that does not represent any of his employees ”. (Wood v. O’Grady, 283 App. Div. 83, 85.) Such findings and conclusions are contrary to the overwhelming weight of the evidence. As we have already said, the evidence convincingly establishes that at no time did the union claim to this employer or to any one else for that matter — that it collectively represented his workers and at no time did it demand a collective contract for the very good reason that none of his employees had joined their union and none were members at that time. Notwithstanding that state of the record, the Appellate Division nonetheless cited as authority Goodwins, Inc., v. Hagedorn (303 N. Y. 300); Metropolis Country Club v. Lewis (202 Misc. 624, affd. 280 App. Div. 816); Haber & Fink v. “Jones” (277 App. Div. 176); Plastic Calendering Corp. v. Spilberg (121 N. Y. S. 2d 297, 304).

An examination of those cases discloses their inapplicability to the present situation. In Goodwins (supra), for instance, we were not dealing with peaceful picketing for purposes of organization (cf. May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, supra; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, supra), but rather with picketing to compel employer recognition as collective bargaining agent of its workers, despite the fact that a certification proceeding on that very issue was pending before the National Labor Relations Board to determine whether the picketing union or a rival union should be certified, a quite different situation.

Metropolis (supra) involved untruthful representation while in Haber & Fink (supra) there was violence in an attempt to nullify an election resulting in a vote of “ no union ’ ’. In Plastic Calendering Corp. v. Spilberg (supra), it was conceded by both sides that the purpose of the picketing was to obtain recognition of a local union as the employees’ collective bargaining agent without certification by the National Labor Relations Board. However, there is nothing in that group of cases or the statute authorizing the use of an injunction in peaceful picketing for avowedly organizational purposes. It is only when the picketing is unlawful that it may properly be restrained (cf. Building Service Union v. Gazzam, 339 U. S. 532; Plumbers Union v. Graham, 345 U. S. 192; Goodwins, Inc., v. Hagedorn, supra). It is axiomatic that we may not, under the guise of interpretation, import into a statute conditions or criteria which the Legislature has been careful to omit. By the same token, we may not review a record in such a way as to bypass the clear meaning and intent of the Legislature. If the Legislature wishes to sound the death knell of peaceful organizational picketing by repealing section 876-a as a declaration of State policy, or by amending it, so as to permit the restraint of peaceful organizational picketing as unlawful because ‘ ‘ exerting economic pressure ’ ’ in addition to that presently defined as “ substantial and irreparable injury to complainant’s property ” it, of course, may do so but we may not.

In the court below much stress was laid on the length of time the within picketing had continued without success, as being in the nature of unlawful economic coercion. The test of illegality, as we see it, is not whether any particular picketing has gone on long enough ” but rather whether such picketing is being lawfully conducted in the furtherance of union interests in a statutory labor dispute. If picketing is a legally protected right one day, it continues as such into the next. Section 876-a prescribes no time limit.

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

Desmond, J.

(concurring). I join in Judge Dye’s opinion and agree for reversal and dismissal of the complaint, but I add (or restate) some reasons therefor.

Since the picketing (even though " organizational ” only) at plaintiff’s place of business was peaceful and since the picketing signs spoke the truth, there could not, constitutionally (Thornhill v. Alabama, 310 U. S. 88; A. F. of L. v. Swing, 312 U. S. 321; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405), be an injunction here unless there was, at the least, proof and valid finding of an “ unlawful labor objective ” (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, 305). The illegal purpose of this picketing, so the Appellate Division found, was to coerce the employer to act in violation of sections 703 and 704 of our State Labor Law by insisting that his employees join the union. That finding was based on another finding that none of appellant’s employees had “ yielded to union membership despite almost two years of exhortation and enticement and despite the fact that the picket line has been maintained outside of Appellant’s store during all this time ”. Let us assume that the continuance of the picketing after and despite the failure of the clerks to join the union, would be, without more, adequate proof that the real purpose of the union was to compel plaintiff to violate the State Labor Eelations Act (Labor Law, art. 20). But this record contains testimony, undisputed although not the subject of any finding below, which shows that the employees were actually coerced by the employer not to join the union. Thus, this record establishes that the picketing was in aid of the constitutional and statutory right of these clerks to make their own unimpeded choice as to whether or not to be organized.

This record, in another respect, lacks adequate support for the injunction. Under section 876-a of the Civil Practice Act, and by the general rules of equity (Kane v. Walsh, 295 N. Y. 198, 205, 206), an injunction may be granted only on a showing that there will, otherwise, be irreparable injury. I see no proof of any substantial injury of any kind to plaintiff from the picketing of the store (the picketing of the warehouse continued for a few days only and ended long before the trial). There is no showing of any falling off in patronage, or any shortage of merchandise.

Fuld, J.

(concurring). In an endeavor to pinpoint my vote for reversal, I add these few words of my own.

Broad as is the concept of a “ labor dispute,” it is now settled (1) that section 876-a of the Civil Practice Act would not be applicable if the picketing sought to be enjoined were designed to further an unlawful labor objective ” (see, e.g., Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, 305) and (2) that the right of free speech, as guaranteed by the Fourteenth Amendment, would not protect even peaceful picketing if its objective were unlawful. (See, e.g., Plumbers Union v. Graham, 345 U. S. 192, 201; Building Service Union v. Gazzam, 339 U. S. 532; Teamsters Union v. Hanke, 339 U. S. 470.) Accordingly, if in this case the picketing had been directed only against the employer, to induce him to recognize the union, if, in other words, defendant’s actual purpose in carrying on that picketing had been, not to organize the employees, but to bring pressure to bear upon the employer to compel his employees to join the union, I would favor an affirmance and the issuance of an injunction.

The record before us, however, fails to establish that the picketing was for that illegal objective. The weight of the evidence strongly supports the conclusion, reached by the trial court, that the picketing was for organizational purposes, to persuade the employees to become members of the union. Such an objective has long been deemed lawful and legitimate in this state (Civ. Prac. Act, § 876-a, subd. 10, par. [c], L. 1935, ch. 477; see Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, 337-341), and, if there is to be a change, it is for the legislature to effect it.

Yav Voorhis, J.

(dissenting). The facts have been stated in the unanimous opinion of the Appellate Division, First Department, which, in our view, correctly concluded that the picketing of plaintiff’s premises has been for an unlawful objective and should be enjoined. Petitioner is the licensee of a package liquor store at 135 East 53rd Street, New York City. He employed three sales clerks, who constituted his entire labor force when this controversy arose, except for two part-time employees who worked on his books and a man who assisted bim with trucking. In October, 1951, defendant union sought to organize plaintiff’s three sales clerks. When these employees declined to join the union, picketing began and continued for two years until an injunction was issued by the Appellate Division in December, 1953. There is no labor dispute here in the understood sense of the term. Section 876-a of the Civil Practice Act consequently does not apply. It was correctly said by the Appellate Division in this case (283 App. Div. 83, 85): “ Plaintiff has never been presented with any grievances as to wages, hours or working conditions by his employees. The union has never made any claim of representing any of plaintiff’s employees. From this record, it is abundantly clear that plaintiff’s employees are unwilling to be represented by defendant union. Up to the time of the trial, the ‘ organizational ’ activities of the union had continued for a period of well over a year and a half, but had been wholly unsuccessful. Such activities are still continuing with no apparent success.” Although unsuccessful in getting any of these few employees to join, this union has attempted to overpower this small employer by using its much greater resources to drive away his patronage, to prevent deliveries to his store by any of the regular suppliers and to cut him off from the use of any of the liquor warehouses, making every possible endeavor to drive him out of business. “As a result of these activities,” the Appellate Division has said, plaintiff is faced with the alternative of either going out of business or contracting with a union that does not represent any of his employees, the latter course being in violation of section 17 of article I of the New York State Constitution and sections 703 and 704 of the New York State Labor Law.” (283 App. Div. 85.) Thus it appears that there is nothing which plaintiff can do to save his business by satisfying the demands of this union, except to violate the Labor Law by compelling his employees to sign up with a union which they do not want to join. There are no findings either by the trial court or by the Appellate Division that this employer has been guilty of the unfair labor practices ascribed to him, which plaintiff denies, and if he had been guilty of them, complaints would certainly have been made by the union to the State Labor Relations Board. Yet no such charges have been lodged against him by the union during the three years which have elapsed since these incidents are said to have occurred. The injunction granted by the unanimous Appellate Division is in accord with the great preponderance of judicial authority, both in this State and elsewhere, as appears from the cases hereafter cited.

Appellant’s contention cannot be sustained that the Supreme Court may not exercise its equitable powers where picketing is conducted for an illegal purpose (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300; American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231; Building Service Union v. Gazzam, 339 U. S. 532). Appellant next contends that, in any event, this was organizational picketing conducted for a lawful purpose. There are numerous decisions under the law as it existed prior to the National and State Labor Belations Acts, sustaining the right to engage in peaceful organizational picketing, e.g., Nann v. Raimist (255 N. Y. 307, 319); Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260); May’s Furs & Ready-to-Wear, Inc., v. Bauer (282 N. Y. 331). But an important object of the Labor Belations Acts was to mitigate the sharpness of labor warfare. Before union organization and representation became protected by these statutes, it was legitimate practice for a union to bring the employer to his knees by exerting economic pressure upon him to force his employees to join a union and to contract with the union in their behalf. The right of a union to do this was upheld as helping to counteract weapons in the employer’s arsenal, such as the lockout and the yellow dog contract (Exchange Bakery & Restaurant, Inc., v. Rifkin, supra, p. 269). The Exchange Bakery case has been superseded by the Labor Belations Acts in important respects. Thus the saying in that opinion (p. 264) is no longer true that organizational picketing tends to balance the employer’s power to hire and discharge men when and where he chooses and for any reason. * * * If believed to be for their interests employers may agree to employ non-union men only. ’ ’ That is as out of date as the next statement in Exchange Bakery that if employees " subsequently joined the union they might have been discharged ” (p. 269). Although appellant union would be the first to agree that this part of the Exchange Bakery case is no longer law, the same case is pressed on our attention as present day authority in support of the unrestricted right to engage in organizational picketing and boycott. The circumstance must be faced that in both respects the rulings in Exchange Bakery & Restaurant, Inc., v. Rifkin and similar cases have been changed by the Labor Eelations Acts.

There is no dispute that respondent conducts an intrastate business, and that the New York State Constitution and the Labor Eelations Act apply. These enactments established that “ Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” (N. Y. Const., art. I, § 17.) The employer can no longer coerce his employees to join a company union, or to select one independent union in preference to another, or compel them to choose between joining a union and being nonunion. Neither the State Constitution nor Labor Eelations Act distinguishes in this respect between organizational activity and collective bargaining. Section 703 of the State Labor Eelations Act (Labor Law, art. 20) requires that: ' Employees shall have the right of self-organisation, 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 employers, but nothing contained in this article shall be interpreted to prohibit employees from exercising the right to confer with their employer at any time, provided that during such conference there is no attempt by the employer, directly or indirectly, to interfere with, restrain or coerce employees in the exercise of the rights guaranteed by this section.” (Italics supplied.)

Subdivision 3 of section 704 makes it an unfair labor practice for an employer:

“ To dominate or interfere with the formation, existence, or administration of any employee organization or association, agency or plan which exists in whole or in part for the purpose of dealing with employers concerning terms or conditions of employment, labor disputes or grievances * # *

“ (b) by urging the employees to join any such employee organisation or association, agency or plan for the purpose of encouraging membership in the same ” (italics supplied).

It has recently been held that this legislation renders picketing unlawful for the purpose of forcing an employer to recognize a union as collective bargaining agent (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, supra). The same principle applies where the choice to be made by the employees is between union and nonunion status as where it is between rival unions (Buildings Service Union v. Gazzam, 339 U. S. 532, supra). A distinction is asserted by appellants between the Goodwins case and a situation like the present where the union is not'in position to demand a labor contract for the reason that it represents none of the employees. The State Labor Relations Board, by a divided vote, denied the employer’s petition to conduct an election in this case, upon the ground that the case does not involve representational but organizational activity.

A simple analysis of the question shows that the distinction is without substance in this action. In the first place, on the basis of sufficient evidence, the Appellate Division has found that the objective of this picketing is both to force the employer to compel these employees to join the union and to coerce the employer to sign a contract; and, second, the Constitution and statute leave no room for a distinction between interference by the employer in organizational and representational activity by the union. As the text shows in the italicized portions that have been quoted, an employer is forbidden to coerce his employees to join a particular union just as definitely as he is forbidden to yield to coercion in recognizing a union as the exclusive bargaining agent for his employees unless they have selected it. The language of the statute forbids such a conclusion. ‘ ‘ Picketing for organizational purposes is only fictionally different from picketing for immediate recognition. The same kind of pressure on both employer and employees exists in either case; furthermore, the union is trying to force the employer to coerce his employees in either case; and finally, the union’s basic desire — the desire for exclusive bargaining status — is the same in either case. The only difference relates not to the conduct of the union, or its effects, but to the union’s explanation of its conduct.” (Petra, Recognition of Picketing Under the NLRA, C. C. H., Labor L. J., Nov., 1951, pp. 803, 805.)

The object is equally unlawful whether the employer seeks to compel union affiliation of his employees or their representation by the union after they have joined. The only object in organizing a union is to enable the union to act as collective bargaining agent. Indeed, appellant union appears at the trial to have abandoned this distinction when one of its business agents testified:

“ Q. Do you expect Mr. Wood to suggest to his men that they join the union? A. No.

“ Q. Ton know that would be against the law, is that right? A. That I would know.

Q. And you also know it would be against the law for Mr. Wood to sign a contract with your union when his employees have not selected your union as their bargaining agent; you know that? A. That is true; that is right.

“ Q. So despite the fact that you know those two things, you are still picketing Mr. Wood’s store? A. That is true.”

Evidently realizing that no legal basis exists for boycotting the employer under these circumstances, appellants take the position that the union in this instance is picketing not the employer but his employees. If that were true, the signs carried by the pickets would not have read ‘ ‘ Please do not patronize this non-union store.” The store is not owned by the employees; the attempt to destroy the patronage is aimed at the employer who can only continue in business if he has the patronage of his customers. As the United States Supreme Court has recognized, industrial picketing “ ‘ is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.’ ” (Hughes v. Superior Court of California, 339 U. S. 460, 464-465, per Frankfurter, J., quoting from Douglas, J., in Bakery & Pastry Drivers & Helpers Local v. Wohl, 315 U. S. 769, 776).

As the Trial Justice herein took judicial notice, the mere presence of a picket line stops many people from crossing it, regardless of the merits of the controversy or the legality of the objective. In this instance, it prevented and was intended to prevent delivery of merchandise at plaintiff’s place of business by all of his suppliers, as well as curtailing the number of customers. This was action directed at the employer himself. Moreover, it could not possibly be thought that the picketing of the warehouses through which plaintiff was supplied was directed at plaintiff’s employees. They did not work at these warehouses; it was an attempt at secondary boycott for the purpose of driving plaintiff out of business. The motivation remained the same after the picket lines were withdrawn from the warehouses, which occurred when the union was evidently advised that the secondary-boycott procedure was illegal. After the pickets were withdrawn from the warehouses, lookouts were maintained there and continued until the trial. These lookouts warned away all drivers carrying plaintiff’s merchandise, which effectively prevented plaintiff’s use of the warehouses. Discontinuance of those picket lines averted interference with other business of the warehouses than with plaintiff, but the lookout activity was clearly aimed at injuring plaintiff rather than at persuading his employees inasmuch as it was conducted away from plaintiff’s premises, and had no relation to plaintiff’s employees, except as it might instill fear into them that plaintiff would be driven out of business and that the union might prevent their employment elsewhere. As was said in Haber & Fink, Inc., v. “ Jones ” (277 App. Div. 176, 182-183), the union activity “ directly affects, and is intended to affect, plaintiff’s business, which is not to be justified in this instance by a pretext that it is done to convince plaintiff’s employees. If the employees are to be solicited, it must be done in some manner which does not result in the coercion of plaintiff.” Invoking the sanctions-involved in picketing is more than free speech; it is concerted action instituting a boycott. It is more than merely publicizing the fact that these employees have not joined a union. Picketing must have an object. The avowed object in this instance was to disrupt plaintiff’s business and to prevent customers from patronizing plaintiff’s store. If the signs said, instead, that customers and suppliers were not asked to boycott plaintiff’s store but were invited to urge plaintiff’s employees to join the union, then it might be .said that the picketing was directed at the employees. The fact that signs reading that way would only be ridiculed by the union illustrates that the true object is to injure the business of the employer. “ The right to carry on business — be it called liberty or property — has value. To interfere with this right without just cause is unlawful. The fact that the injury was inflicted by a strike is sometimes a justification. But a strike may be illegal because of its purpose, however orderly the manner in which it is conducted. ’ ’ (Dorchy v. Kansas, 272 U. S. 306, 311, per Brandeis, J.) That statement is equally true respecting this situation. The following statement in the opinion of this court in Opera on Tour, Inc., v. Weber (285 N. Y. 348, 355) is relevant here: “ If on the other hand the labor objective here sought is illegal and not a lawful labor objective, since it has no reasonable connection with wages, hours, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, then there is no immunity for injury inflicted by a labor union. For such activities labor is not free from legal responsibility. ‘ * * prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law * * * requires a justification if the defendant is to escape. * * * ’ (Mr. Justice Holmes in Aikens v. Wisconsin, 195 U. S. 194, 204.) ” (See, also, Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79.)

If this were a labor dispute, involving wages, hours or working conditions, the economic pressure brought to bear upon the employer would be lawful, as a proper step in collective bargaining. It would be within the employer’s power to increase wages, shorten hours or improve working conditions, but under the circumstances presented here, what can the employer legally do % Recourse to the Labor Relations Board has been denied to him. The only thing which he could do in order to alleviate the economic pressure and save his business would be to compel his employees to join this union. That, as the union’s own business agent admits, would constitute an unfair labor practice and involve him in a violation of the State Labor Relations Act. The cases clearly hold to that effect. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300, supra; Haber & Fink, Inc., v. “ Jones ”, 277 App. Div. 176, supra; Chic Maid Hat Mfg. Co. v. Korba, 281 App. Div. 1004; Metropolis Country Club v. Lewis, 202 Misc. 624, affd. 280 App. Div. 816; Building Service Union v. Gazzam, 339 U. S. 532, supra; Bean v. Local Union No. 698, Retail Clerks Union, 94 Ohio App. 361; Way Baking Co. v. Teamsters & Truck Drivers Local 164, A. F. of L., 335 Mich. 478, certiorari denied 345 U. S. 957; Klibanoff v. Tri-Cities Retail Clerks’ Union, 258 Ala. 479; Voeltz v. Bakery & Confectionery Workers, 233 P. 2d 624 [Calif. Dist. Ct. App., 1951], affd. 40 Cal. 2d 382; Bitzer Motor Co. v. Teamsters, Local 604, 349 Ill. App. 283; Katz Drug Co. v. Kavner, 249 S. W. 2d 166 [Mo. Sup. Ct., 1952]; Wisconsin Employment Relations Bd. v. Retail Clerks, 264 Wis. 189; Hotel & Restaurant Employees Union v. Lambert, 258 S. W. 2d 694 [Ky. Ct. App., 1953] ; Hayes Freight Lines v. Teamsters Union, 33 LRRM 2671 [Tenn. Ct. App., 1954]; S. & H. Grossinger, Inc., v. Burke, 124 N. Y. S. 2d 40; Selton Service v. Dioguardi, 116 N. Y. S. 2d 36; House of Styles, Inc., v. Doe, 130 N. Y. S. 2d 45; Tarrytown Road Restaurant Co. v. Hotel, Restaurant & Beverage Dispensers Union, 115 N. Y. S. 2d 626; Plastic Calendering Corp. v. Spilberg, 121 N. Y. S. 2d 297; Saperstein v. Rich, 202 Misc. 923; Gallespie Constr. Co. v. Hod Carriers, 32 LRRM 2383 [Fla. Cir. Ct., 1953]; Woodard v. Collier, 210 Ga. 239; Huff Truck Lines, Inc., v. Truck Drivers’, Local 270, 30 LRRM 2571 [La. Civ. Dist. Ct., Orleans Parish, 1952]; Wischhusen v. Griffin, 32 LRRM 2426 [Md. Cir. Ct., 1953]; Hall Steel Co. v. Teamsters, 31 LRRM 2645 [Mich. Cir. Ct., 1952]; Cordey China Co. v. United Mine Workers, Dist. 50, 25 N. J. Super. 514; Couris v. Waiters Union, 34 LRRM 2246 [Pa. Ct. Common Pleas, 1954]; Lotmar Corp. v. Norton, 117 N. Y. S. 2d 607; Bon-Flo Taxi Corp. v. Norton, 118 N. Y. S. 2d 249; Cornell Beverages, Inc., v. Engar, N. Y. L. J., Dec. 9, 1953, p. 1389, col. 5; Kleet v. O’Rourke, 124 N. Y. S. 2d 603; Anchorage, Inc., v. Waiters & Waitresses Union Local 301, 25 Labor Cases, 85773, 84 LRRM 2012 [Pa. Ct. Common Pleas, 1954] ; Matter of Kappel v. Local 71, Qualified & Misc. Workers, 13 S. L. R. B. No. 116; Irving Subway Grating Co. v. Silverman, N. Y. L. J., Oct. 1, 1953, p. 614, col. 7; Fireproof Products Co. v. Silverman, 32 LRRM 2729 [Sup. Ct., N. Y. County, Sept. 28, 1953, Eder, J.]; Amazon v. Local 178, Hotel & Restaurant Beverage Dispensers Ind. Union, N. Y. L. J., March 17, 1953, p. 889, col. 3). In all of those cases, as well as in others, peaceful picketing was considered to be for an unlawful labor objective, and therefore subject to injunction, if it was conducted for the purpose of compelling the employer to coerce employees in violation of the freedom of choice in joining a union or in union representation guaranteed to them by the Federal or State Labor Eolations Acts.

: AYhile'the'láw permitted the employer to exert such pressure, organizational picketing was lawful. It is not necessary to decide in this case whether there may be some circumstances under which organizational picketing is still lawful, but in no event can the law reasonably be construed as allowing an employer’s business to be injured or destroyed when there is nothing which he can do to alleviate the economic pressure except by violating the law.

Another point is made which is said to distinguish this case from Goodwins, Inc., v. Hagedorn (303 N. Y. 300, supra) based on testimony of one of defendants’ business agents, Edgar M. Wortman, that plaintiff told him in the presence of his employees that they were not going to sign up for the reason that if they did so they would no longer work in his store. Plaintiff denied that he said this, and there is no finding of fact that he did say it. If he did so, it would have been an unfair labor practice concerning which the union would at once have lodged a complaint with the Labor ¡Relations Board. Three years have elapsed, but no such complaint has been made. No finding that such an incident occurred was even made by the trial court, when the complaint was dismissed. Neither the trial court nor the Appellate Division found that plaintiff made any threats of this nature to his employees. The trial court did find that certain of plaintiff’s employees revealed a friendly attitude toward becoming members of this union but expressed a fear that their jobs would be jeopardized. That is not a finding that plaintiff made such threats. It may have been simply a polite way of telling the business agent that they did not choose to join his union. In any event, this finding was reversed by the Appellate Division and no longer remains in the record. There is not and never has been any finding that plaintiff, in fact, did threaten to discharge any of his employees if they joined this union, even by the trial court which decided in favor of the union. It is incorrect to state that the employer does not deny having done this. He testified: “ Q. Mr. Wood, did you ever consult with your employees as to whether or not they should be members of Local 122? A. No, I never did.” This testimony by plaintiff is a positive denial that he ever told his employees that they were not to become members of defendant union. Without making a new finding on conflicting evidence, which we lack jurisdiction to do, the decision of this court cannot be based on that ground. Even if the employer had been guilty of an unfair labor practice by threatening discharge if these employees joined the union, the State Labor Relations Board would have had exclusive jurisdiction over such an unfair labor practice (Labor Law, §§ 704 — 706). If such a charge had been made to the labor board and sustained, the board was empowered to impose effective sanctions to redress the wrong. The Labor Relations Board could take appropriate steps to prevent the employer from carrying out any threat to discharge his employees for such a cause, and remove any fear of that nature from their minds. Upon the other hand, forcing an employer to coerce his employees into joining a union is not a legal sanction to redress an unfair labor practice.

The injunction could not be sustained and was not granted by the Appellate Division merely for the reason that the picketing was conducted by strangers. It may well be that the union has an interest in having union conditions prevail generally throughout this branch of business (cf. May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, supra; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 263, supra). Nevertheless, the union can accomplish that result only by methods permitted by law, and not by pressurizing an employer to engage in an unfair labor practice forbidden by the Labor Relations Acts.

The judgment appealed from should be affirmed, with costs.

Desmond, J., concurs with Dye, J., in a separate opinion; Froessel, J., concurs with Dye, J.; Fuld, J., concurs for reversal in a separate opinion; Van Voorhis, J., dissents in an opinion in which Lewis, Ch. J., and Conway, J., concur.

Judgment reversed, etc.


author: Van Voorhis, J.

text:
    George W. McGrath, Respondent, v. American Surety Company of New York, Appellant.
    Argued October 11, 1954;
    decided November 18, 1954.

      Mahlon A. Freeman for appellant.
    I. The complaint is barren of any allegation that plaintiff relied upon the bonds. (Buffalo Cement Co. v. McNaughton, 90 Hun 74, 156 N. Y. 702; Eastern Steel Co. v. Globe Ind. Co., 227 N. Y. 586; Duffy Co. v. Board of Educ., 280 N. Y. 773.) II. It was the intention of the surety and the general contractor to have the general contractor sole beneficiary of the bonds sued upon, excluding third parties. (Fosmire v. National Sur. Co., 229 N. Y. 44; Van Clief & Sons v. City of New York, 141 Misc. 216; Brainard v. New York Central R. R. Co., 242 N. Y. 125.) III. The two bonds sued upon are for different independent purposes and neither is to be read to support the other; and neither gives a direct cause against the surety to plaintiff. (Adirondack Core & Plug Co. v. New York Central R. R. Co., 238 App. Div. 346; Daniel-Morris Co. v. Glens Falls Ind. Co., 283 App. Div. 504.) IV. The complaint in this action does not state facts sufficient to constitute a cause of action and the question certified should be answered in the negative.

      Bertram S. Bermar and Bernard Williams Cohen for respondent.
    The payment bond sued upon is for the benefit of plaintiff-respondent, who has a direct right of action thereon. (Lawrence v. Fox, 20 N. Y. 268; Seaver v. Ransom, 224 N. Y. 233; Van Clief & Sons v. City of New York, 141 Misc. 216; McCormack Sand Co. v. Milligan, Inc., 253 App. Div. 743; Fosmire v. National Sur. Co., 229 N. Y. 44; Eastern Steel Co. v. Globe Ind. Co., 186 App. Div. 892, 227 N. Y. 586; Maltby & Sons Co. v. Wade, 131 Misc. 143, 224 App. Div. 779; International Time Becording Co. of N. Y. v. Southern Sur. Co., 142 Misc. 501; Greybar Elec. Co. v. Seaboard Sur. Co., 157 Misc. 275; Newark Concrete Pipe Co. v. National Sur. Co., 131 Misc. 718; McClare v. Massachusetts Bonding & Ins. Co., 266 N. Y. 371; Daniel-Morris Co. v. Glens Falls Ind. Co., 283 App. Div. 504.)
   Van Voorhis, J.

This appeal concerns whether the amended complaint states a cause of action. A plumbing subcontractor owes $8,500 to plaintiff for labor and services performed in the construction of a veterans ’ hospital at Pittsburgh, Pennsylvania. A Federal statute known as the Miller Act (U. S. Code, tit. 40, §§ 270a, 270b) requires that in the performance of such public work for the Federal Government, every general contractor shall furnish to the United States (1) a performance bond guaranteeing the completion of the work, and (2) a payment bond for the protection of all persons supplying labor and material in the prosecution of the work. Section 270b gives to every person who has furnished labor or material in the prosecution of the work a cause of action on the payment bond, “ Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed ”.

Plaintiff comes within the language quoted from section 270b, that is to say, he is a person having direct contractual relationship with the subcontractor but not with the general contractor. The Miller Act conferred upon him a cause of actioti. on the payment bond required to be given by the general contractor to the Federal Government.

The bond.in suit is not that bond, viz., it is not the payment bond given by the general contractor under the Miller Act. Defendant-appellant is the surety on a bond given by the subcontractor which indemnifies the general contractor against liability to creditors of the subcontractor under the Miller Act. If the order appealed from were correct, it would mean that the contractor and subcontractor considered that the laborers and materialmen of the subcontractor were not sufficiently protected by the Miller Act, and consequently set out to enlarge their rights by the procurement of the additional bond in suit. That is manifestly not what occurred. The rights of these laborers and materialmen of the subcontractor were definitely fixed and considered to be protected adequately by the Miller Act. The object in giving the bond in suit was to protect the contractor against this very liability imposed upon him by Federal law.

This conclusion is not altered by the circumstance that the bond upon which the action is hr sed is conditioned upon payment by the subcontractor of its obligations to laborers and materialmen. This condition merely described the events in which the general contractor could have recourse to the bond, if it were harassed by losses due to neglect of the subcontractor to satisfy these obligations. Similar language was held to mean no more in Eastern Steel Co. v. Globe Ind. Co. (227 N. Y. 586), Buffalo Cement Co. v. McNaughton (90 Hun 74, affd. on opinion below, 156 N. Y. 702), and Fosmire v. National Sur. Co. (229 N. Y. 44). Those cases hold that similar bonds were intended to operate exclusively for the benefit of the State or municipality to which the bonds ran. The opinion in the Fosmire case did emphasize, and on this plaintiff here stands or falls, that payment of laborers and materialmen was there mentioned in a single performance bond, the dominant purpose of which was to protect the State in case the contractor failed to complete the work undertaken by the contract. The court said: “ This dominant purpose will be. defeated if laborers may ignore the People, and sue in their own right. They may then sue for wages as often as there is default, and exhausting the penalty of the bond, leave nothing for the state.” (P. 48.) The circumstance that no separate performance bond had been given by the contractor to the State, was held to evidence an intention that the cause of action was solely in favor of the State. “In so holding,” the opinion continues (per Cardozo, J.), “we put our decision upon the single ground that the bond, read in its entirety, is inconsistent with an intention that the plaintiff and others in like position should have the right to sue upon it. If that intention is absent, the right to sue will be denied (Simson v. Brown, 68 N. Y. 355). A different question would be here if the bond had been conditioned for the payment of wages and nothing else. The interest of the state in the welfare of those who labor on its public works might then point to an intention to create a cause of action in their favor (Matter of Int. Ry. Co. v. Rann, 224 N. Y. 83; Williston on Contracts, secs. 372, 402. Cf. 28 U. S. Stat. 278; 33 id. 811; Texas P. Cement Co. v. McCord, 233 U. S. 157). For the purpose of this opinion, we assume, without attempting to decide, that when such an intention is revealed, there is no legal obstacle in the way of its enforcement (Seaver v. Ransom, 224 N. Y. 233; Lawrence v. Fox, 20 N. Y. 268; Williston, supra). ” (Pp. 47-48.)

That statement in the Fosmire case (supra), appropriate to its context, has caused this complaint to be sustained since here there are separate payment and performance bonds. But other facts are different, bringing this appeal within the Fosmire holding and outside of the suggested distinction. In the Fosmire case, as in the Eastern Steel Co. and Buffalo Cement Co. cases (supra), subcontractors were not involved. No obligation to unpaid laborers or materialmen had been created by statute between parties otherwise not connected by contract among whom there was no liability before. In each of those decisions, the purpose of the bond was to provide security to insure that a contractor would pay his own laborers and materialmen, as well as to guarantee that he would perform the contract. In such instances, it might be inferred that if a payment bond were to be exacted in addition to a performance bond, the payment bond would be designed to benefit the employees and materialmen of the contractor. If they sued upon the payment bond, that would not exhaust the penalty of the performance bond. The obligee would still be protected if it became necessary to complete the construction job.

Here, however, the reason for giving separate payment and performance bonds was not to adjust to this distinction in Fosmire v. National Sur. Co. (supra), fit was to "render cer-' tain that the general contractor would be indemnified against liability created by the Miller Act for payment of materialmen and laborers of its subcontractor, and against failure of the subcontractor to complete performance of the subcontract. If a subcontractor encounters financial difficulty, not only are his laborers and materialmen liable to go unpaid, but also he will probably fail to finish the construction work covered by his subcontract. In that event, the general contractor will be required by the Miller Act to meet the demands of the subcontractor’s unpaid laborers and materialmen, and will also be required to complete the work which the subcontractor has neglected to perform. It follows that unless the general contractor were to exact separate payment and performance bonds from his subcontractor, a single bond might be exhausted either by indemnification against demands of unpaid laborers or materialmen of the subcontractor under the Miller Act, or by the cost of completing the construction work. The object in having a separate payment bond — the one in suit — was to protect The general contractor against the contingency which would arise if the subcontractor’s performance bond were' to become exhausted in completing the construction work, thereby leaving the general contractor exposed to liability under the Miller Act to unpaid laborers or materialmen of the subcontractor without indemnification.

The instant case thus falls within the Fosmire precedent. Just as there the court discerned that the intention was to protect the State rather than unpaid creditors of the contractor, from the circumstance that otherwise the security for performance of the contract to the State might be undermined by paying claims of laborers and materialmen, so, here, the object in giving two bonds was to assure that exhaustion of the performance bond would not impair the obligation of the surety to indemnify the general contractor against payments which it might be required by the Miller Act to make to creditors of the subcontractor. The object of this payment bond was not to supersede nor to supplement rights of action of unpaid materialmen or laborers of the subcontractor under the Miller Act, but to indemnify the general contractor against its liability to satisfy such claims without exhausting its protection against' failure of the subcontractor to perform the work. The purpose was to protect the general contractor and not to add to liability created by the Miller Act in favor of third parties.

The order appealed from should be reversed, and defendant-appellant’s motion to dismiss under rule 106 should be granted for insufficiency in law, with costs in all courts. The question certified is answered in the negative.

The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted with directions to dismiss the complaint. The question certified is answered in the negative.

Lewis, Oh. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Orders reversed, etc.


author: Froessel, J.

text:
    Ernest Mayer, as Administrator of the Estate of Frank U. Mayer, Deceased, Respondent, v. Temple Properties Incorporated et al., Appellants.
    Argued October 11, 1954;
    decided November 18, 1954.

      John J. Gunneen for appellants.
    I. The intestate was a trespasser sui juris to whom defendants were not liable for negligence. (Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Mendelowitz v. Neisner, 258 N. Y. 181; Bergman v. Feitelowitz, 278 N. Y. 620; Basmajian v. Board of Educ. of City of N. Y., 211 App. Div. 347.) II. The intestate was guilty of contributory negligence as a matter of law and as a matter of fact. III. No case whatever was made against defendant Temple Properties Incorporated and the complaint should be dismissed as against it.

      Arthur Karger, Mortimer Sperling and Samuel Seligsohn for respondent.
    I. The evidence overwhelmingly supports the Referee’s decision finding defendants guilty of negligence. (Le Roux v. State of New York, 307 N. Y. 397; Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Mendelowitz v. Neisner, 258 N. Y. 181; Bergman v. Feitelowitz, 278 N. Y. 620; Collentine v. City of New York, 279 N. Y. 119; Morse v. Buffalo Tank Corp., 280 N. Y. 110; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Cusick v. Adams, 115 N. Y. 55; Runkel v. City of New York, 282 App. Div. 173; Basmajian v. Board of Educ. of City of N. Y., 211 App. Div. 347; Kingsland v. Erie Co. Agric. Soc., 298 N. Y. 409; French v. Central New York Power Corp., 275 App. Div. 238.) II. Decedent was not guilty of contributory negligence as a matter of law. (Crapo v. City of Syracuse, 183 N. Y. 395;
      Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45; Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442; Barry v. New York Central & H. R. R. R. Co., 92 N. Y. 289; Noseworthy v. City of New York, 298 N. Y. 76.) III. Judgment was properly awarded against both defendants.
   Froessel, J.

Frank Mayer, a lad of twelve years, came to his death by falling into an opening, 55 feet deep, in a platform at the rear of premises owned by one of the defendants, and used in common by both. His father sues here as his administrator.

The platform in question abuts a 10-foot passageway in the rear of defendants’ properties, which face on the west side of Broadway between 173rd and 174th Streets, New York City. The passageway runs the length of the block — 200 feet — and the middle 100 feet thereof are bounded by two wire mesh gates at the north and south ends, the aforesaid platform and building on the east, and a brick wall on the west, alongside of which are a public school and schoolyard.

It is undisputed that the premises are in a congested neighborhood, in which there are thousands of children. The platform, which was recessed in the rear of the building, was 3% feet above the ground and was readily accessible by a stationary ladder. The opening therein started about 2 feet from the edge of the platform and was 4 feet square. It was used to raise and lower ash and rubbish cans. Two hinged steel doors were designed to cover the opening, each door measuring 2 by 4 feet, opening to the left and right respectively.

• Ample evidence was adduced from several witnesses that children frequently crawled under the gates and played on the platform; that on one occasion boys threw ash cans from the platform; that defendants’ agents knew of the practice of children entering upon the passageway both inside and outside of the gated portion, and on occasions chased them, notwithstanding which the clearance between the bottoms of the gates and the concrete pavement, varying according to the evidence from 8% inches to 12 inches, remained undisturbed.

At about 6:00 p.m. on March 22, 1949, decedent and his companion, Larry Berger, crawled under the north gate and entered upon the platform, as they had many times before. They walked around the 4-foot-square opening, half of which was covered by one of the steel doors, but the door on the other half was open and the opening was covered by wood, which the police officer testified was a jerry-built ” arrangement, After remaining a short while, and as Larry was about to leave the platform, he heard the crashing of wood behind him, whereupon decedent disappeared. The only wood around after the accident was scattered about decedent’s body at the bottom of the hole; the wood ‘1 was more or less like that of orange crate or a shipping crate ’ ’.

Defendants’ witness Smith conceded that the one steel door was open, but claimed that the space was largely covered by a calamine door, and that there were ‘ ‘ a couple of flimsy pieces of board put there to cover the cracks, something like that down the boiler room ”. He also testified that a hoist protruded through the opening on that day, and indeed all winter, but had not been used that day; and that some time previously oil had been substituted for coal to heat the buildings. Larry Berger, on the other hand, testified that nothing was protruding through the opening; wood, as heretofore noted, had been placed over it.

The Referee before whom this case was tried, sitting without a jury, found that there was known to have existed in the areaway opportunities which were utilized by the children' of the neighborhood for passage through and playing for periods of time within the areaway. That entry was obtained by crawling under the gates, either on 173rd or 174th Street ”; that at the time of the accident, “ the hole or hoist area was open at least on one side * * * and that the covering was with wooden slats or boards, which were insufficient to hold the weight of the deceased ”; and that allowing the hoist space to remain open, constituted a dangerous condition which, under the circumstances of this case * * * places the responsibility * * * upon the defendants ”. Since these findings of fact are clearly supported by legally sufficient evidence, they are no longer open to challenge in view of the Appellate Division’s affirmance of the judgment below (Le Roux v. State of New York, 307 N. Y. 397, 405; Harrington v. Harrington, 290 N. Y. 126, 130).

The primary contention of defendants is that decedent was a trespasser sui juris to whom they are not liable for negligence. Plaintiff is entitled to every favorable inference which may be had from the evidence, and in that view the Referee could find that he was at least a bare licensee. Whether we regard him thus or technically as a trespasser, it does not necessarily follow therefrom that defendants are not liable in negligence.

Here we have a dangerous instrumentality in the nature of a perilous trap affirmatively created by defendants by knowingly placing over a hole 55 feet deep, with an opening of 8 square feet and an inside area of 16 square feet, a frail wooden covering that could not sustain the weight of this twelve-year-old boy but precipitated him to the boiler room below. Moreover, this utterly insecure covering gave a deceptive appearance of safety, was pregnant with hazard, and the direct consequences were clearly foreseeable.

In Collentine v. City of New York (279 N. Y. 119), where a ten-year-old boy fell from the roof of a building, the trial court directed a verdict for defendant on the ground that the boy was a trespasser, and therefore defendant owed him no duty of care; the Appellate Division affirmed. We unanimously reversed, stating, among other things (p. 125): “ In deciding what would be reasonable care under the circumstances, the jury were entitled to take into consideration the well-known propensities of children to climb about and play (Parnell v. Holland Furnace Co., 234 App. Div. 567; affd., 260 N. Y. 604). That rule applies even though a child might be deemed technically a trespasser (Connell v. Berland, 223 App. Div. 234; affd., 248 N. Y. 641).”

In Morse v. Buffalo Tank Corp. (280 N. Y. 110, 115) we noted: The general rule which has prevailed since the well-known turntable case (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301) is that the so-called doctrine of attractive nuisance does not apply in New York, and that the only duty which an owner of land owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure intentionally such person.” In the Walsh case just cited, at page 307, we pointed out that the turntable was not of the nature of a trap for the unwary ”. We spoke similarly with respect to the private bridge in Cusick v. Adams (115 N. Y. 55, 60).

In Kingsland v. Erie Co. Agricultural Soc. (298 N. Y. 409), where a boy was injured by the explosion of a bomb, we held (pp. 423-424): The fact that the boys may have been trespassers on the fairgrounds is immaterial, since there was sufficient evidence that the article which caused the injury was * inherently dangerous ’. One who keeps an explosive substance is bound to the exercise of a high degree of care to so keep it as to prevent injury to others.' (Travell v. Bannerman, 174 N. Y. 47, 51.) The degree of care required is commensurate with the risk involved, depending upon such circumstances as the ‘ dangerous character of the material ’ and its accessibility to others, particularly children whose presence should have been anticipated, regardless of whether or not they are trespassers.” (See, also, Runkel v. City of New York, 282 App. Div. 173; French v. Central New York Power Corp., 275 App. Div. 238; 277 App. Div. 1157.) Under the particular circumstances here disclosed, we think the courts below were correct in holding defendants responsible for this boy’s death.

The cases relied upon by appellants (Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Mendelowitz v. Neisner, 258 N. Y. 181, and Basmajian v. Board of Educ. of City of N. Y., 211 App. Div. 347) are clearly distinguishable. In those cases, defective conditions in the property or premises were permitted to continue until decay or mere failure to repair resulted in injuries to a trespasser or licensee; there were no acts of affirmative negligence nor deceptive traps created by the defendants such as in the instant case.

Moreover, in the Carbone case (supra, pp. 159, 160) we pointed out that the foundation walls were far removed from lanes of public travel ”; that the record is devoid of proof that at the time of the accident the defendants, by any affirmative act, changed conditions existing at the site of the foundation or created new perils there ’ ’, and that there was no evidence that the harm which befell plaintiffs was due to active participation by the defendants in the event ”, thus recognizing the materiality of such factors. Here we have abundant proof'of affirmative action by defendants, who “ changed conditions ” and “ created new perils there ” by providing an insecure and deceptive covering over the platform opening. Nor do the facts in Bergman v. Feitelowitz (278 N. Y. 620) in anywise resemble those in the ease now before us.

In the state of this record, we must assume that defendants had knowledge of the “ common occurrence ” of children in this congested neighborhood adjoining a public school, crawling under the gates to play, to retrieve a ball or to linger awhile, and that this practice had been followed for a long time. Despite such knowledge, the only space affording entry, through the clearance beneath the gates, was left open. Once within the gates, the platform was easily accessible to children. Under these circumstances, to cover a hole, more than half as deep as the gated passageway, with “ flimsy ” pieces of wood that quickly crumbled under the feet of the infant decedent, plunging him to his death in the boiler room far below, constitutes an affirmative creation of a situation pregnant with the greatest danger to life or limb, and a deceptive trap to the unwary, as perilous as an explosive bomb, highly inflammable material, a spring gun, or kindred devices. The bringing about of an inherently hazardous situation, as we had in this case, is tantamount to a reckless disregard of the safety of human life equivalent to willfulness, and an utter heedlessness of care commensurate with the risk involved, the consequences of which may well have been anticipated.

The contributory negligence of decedent, the burden of proving which rested upon defendants, was clearly a question of fact, which is now beyond our review. Nor is there any merit in the claim that no case has been made out against Temple Properties Incorporated. While it did not own the particular building here involved, it concededly had an easement of use in the heating system and appurtenances, used the platform and hoist in common with its codefendant, and shared with it inspection of the boiler room as well as the gates in the passageway.

The judgment appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway and Desmond, JJ., concur with Froessel, J.; Dye and Van Voobhis, JJ., vote to reverse and dismiss the complaint upon the ground that the appellants are not shown to have violated a duty owing to a trespasser (Carbone v. Mackchil Realty Corp., 296 N. Y. 154); Fuld, J., taking no part.

Judgment affirmed.