author: Finch, J. Lehman, Ch. J.

text:
    Opera on Tour, Inc., Appellant, v. Joseph N. Weber, as President of American Federation of Musicians, et al., Respondents.

      Argued December 3, 1940;
    decided April 24, 1941.

      Julius Weiss, John Kadel and Selig J. Silverman for appellant.

      Henry A. Friedman for respondents.
   Finch, J.

The question presented for decision is far reaching and of vital importance to the best interests of unions of employees, of employers and of the general public. The only issue is whether the leaders of the defendant unions were engaged in promoting a lawful labor objective when the Musicians’ Union induced the Stagehands’ Union to join in a combination to destroy an enterprise solely because of the use of machinery in the production of music in place of the employment of live musicians.

There is no issue involved in this case of a possible compromise. The defendant Musicians’ Union refused all offers of compromise made by the plaintiff. The position of the Musicians’ Union cannot be better stated than it is in a letter from that union to the Stagehands’ Union: “ Our Federation is not in a position to compromise this matter * * * nothing short of Ceasing to use canned music can be considered as safeguarding the interests of our organization.”

This position was adopted and resolutely held even though such adherence destroyed plaintiff’s business. The result was the loss of employment of over fifty stagehands, actors and singers, even though this business, which was being destroyed, had created new opportunities of employment where none had existed before.

At the outset we note that there is in the decision of the case at bar no denial of the right to strike. On that issue our decisions are not in doubt. (May’s Furs & Ready-to-War, Inc., v. Bauer, 282 N. Y. 331; Goldfinger v. Feintuch, 276 N. Y. 281.) Individually and collectively, the members of any union may at any time refuse to work, because machinery is employed or for any other reason, and may strike in so doing. The members of these unions are free to refuse to work if they object to working in the presence of a machine. But what is here enjoined is the inducement by the Musicians’ Union of the Stagehands’ Union to enter into a combination to destroy the business of the plaintiff solely because machinery instead of five musicians is used. Here the members of the Stagehands’ Union were ordered and coerced to leave the employ of the plaintiff, causing the ruin of plaintiff’s business and the destruction of the opportunity of employment of a larger group of stagehands, actors and singers, and the denial to the public of an opportunity to enjoy the benefits of the classic operas. This, even though the members of the Stagehands’ Union were not dissatisfied with respect to wages, hours or terms and conditions of their employment, and no controversy existed or exists between them and plaintiff.

After a trial at Special Term, it was found upon sufficient evidence that plaintiff was engaged in the business of rendering performances of grand opera with an orchestral accompaniment of music mechanically reproduced from records instead of by an orchestra of five musicians. The purpose was to make grand opera available in those cities and towns of the United States which could not afford otherwise this form "of entertainment because of the prohibitive cost of transporting a grand opera orchestra. Each of the two defendants is a labor union.

It was found that the members of the defendant unions had no other grievance of any kind, nor did there exist any controversy except this demand to discard machinery, between plaintiff and the defendant unions. The defendant Musicians’ Union threatened to and did put plaintiff out of business solely because of the use of recorded music. The defendant Musicians’ Union induced the defendant Stagehands’ Union to order its members to cease rendering any service to plaintiff, which order had to be obeyed by the members of the defendant Stagehands’ Union since over ninety-five per cent of the theatres and auditoria in the United States are closed shop, and without membership in the defendant Stagehands’ Union the latter find it practically impossible to obtain employment. In addition, the defendant Musicians’ Union ordered that no member of that union render services to plaintiff, and caused the American Guild of Musical Artists to order its members not to render services to plaintiff, and members of the Stagehands’ Union not to accept employment from plaintiff. If they had not been so ordered, the members of the defendant Stagehands’ Union would have continued to render services to plaintiff. As a result of this conspiracy between the two defendant unions, plaintiff was unable to fulfill its bookings and its contracts which had already been made and was prevented from entering into further engagements for the presentation of opera, and in consequence thereof this entire enterprise was forced to come to a complete stop. It was likewise found at Special Term that there was no labor dispute or controversy between the defendant unions and plaintiff, or between any member of those unions and plaintiff, and that the case did not involve or grow out of a labor dispute between plaintiff and these defendants, the- only contention being the demand and' refusal to cast out machinery.

An injunction was thereupon granted restraining defendants from interfering directly or indirectly with the business of plaintiff, and from ordering and coercing any person or persons to cease performing service for plaintiff, and from ordering and coercing employees of plaintiff to leave the employ of plaintiff, on the ground that plaintiff uses records or transcribed or mechanically reproduced music in connection with its performances, and from entering into a conspiracy with any group or organization having as its object the destruction of the business of plaintiff for the aforesaid reason, namely, to prevent the rendition of any services to plaintiff, on the ground that plaintiff uses music reproduced by machinery in connection with its performances.

Does this demand of these defendant unions, that plaintiff discard machinery in the interest of the immediate employment of a few individuals, constitute a lawful labor objective? If the acts of these 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. (National Protection Association v. Cumming, 170 N. Y. 315; Bossert v. Dhuy, 221 N. Y. 342; J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315; Goldfinger v. Feintuch, 276 N. Y. 281; May’s Furs & Beady-to-Wear, Inc., v. Bauer, 282 N. Y. 331; Baillis v. Fuchs, 283 N. Y. 133.) 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 Aihens v. Wisconsin, 195 U. S. 194, 204.)

The self-interest of labor, like the self-interest of any other body, receives immunity only for those objectives which have a legitimate and reasonable relation to lawful benefits which the union is seeking. When the labor objectives are illegal, the courts must control, otherwise there are bodies within our midst which are free from the provisions of the Penal Law. When doubt arises whether the contemplated objective is within the legal sphere, or without and so illegal, it is for the courts to determine. In Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260, 262) we said: “ If, however, any action taken is concerted; if it is planned to produce some result, it is subject to control. As always, what is done, if legal, must be to effect some lawful result by lawful means, * * By way of illustration, the courts condemn the combined effort of employees to coerce an employer to pay a stale or disputed claim, even though it might be to the self-interest of the striking employees. (Dorchy v. Kansas, 272 U. S. 306.) So a conspiracy is illegal involving extortion or to force the employer to commit a crime; or one where the intent to injure rests solely on malice or ill will. Or if those engaged in police duty or in the armed forces should conspire in the face of an emergency or otherwise to coerce others to cease maintaining law and order or defense. A secondary boycott has always been held to be an illegal labor objective. (Auburn Draying Co. v. Wardell, 227 N. Y. 1, 11.) Harm done to another or to the public may be countenanced only if the purpose, in the eye of the law, is sufficient to justify such harm.

So in Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), a labor union joined an employers’ association to prevent plaintiff from price cutting in performing scavenger service in the city of Chicago. This labor objective was held unlawful.

To make impossible the continuance of a business and thus to prevent the employment of a full complement of actors, singers and stagehands merely because a machine is not discarded and in place thereof live musicians employed, is not a lawful labor objective. In Hopkins v. Oxley Stave Co. (83 Fed. Rep. 912) the labor objective sought was to abandon certain machines for hooping barrels which materially lessened the cost of making the same. The introduction of the machine actually resulted in the dismissal of certain employees, and the court held the labor objective unlawful.

In Haverhill Strand Theatre, Inc., v. Gillen (229 Mass. 413) the owner of a motion picture theatre used an organ played by hand during the presentation of its pictures. A union sought to compel the use of an orchestra of five pieces. - The Supreme Court of Massachusetts held that defendants were guilty of an unlawful labor objective.

For a union to insist that machinery be discarded in order that manual labor may take its place and thus secure additional opportunity of employment is not a lawful labor objective. In essence the case at bar is the same as if a labor union should demand of a printing plant that all machinery for typesetting be discarded because it would furnish more employment if the typesetting were done by hand. We have held that the attempt of a union to coerce the owner of a small business, who was running the same without an employee, to make employment for an employee, was an unlawful objective and that this did not involve a labor dispute. (Thompson v. Boekhout, 273 N. Y. 390.) So, too, in a case just unanimously decided, we held that it was an unlawful labor objective to attempt to coerce a peddler employing no employees in his business and making approximately thirty-two dollars a week, to hire an employee at nine dollars a day for one day a week. • (Wohl v. Bakery & Pastry Drivers Union, 284 N. Y. 788.)

Since the endeavor to prevent the use of a mechanical device bears no reasonable relation to wages, hours of employment, health, safety, the right of collective bargaining, or any other condition of employment or for the protection of labor from abuses, there is no labor dispute within either the letter or the spirit of the Civil Practice Act. (Civ. Prac. Act, § 876-a, subd. 10; Thompson v. Boekhout, 273 N. Y. 390; Luft v. Flove, 270 N. Y. 640.) In other words, there is involved in the case at bar solely the demand that a new enterprise shall not make use of machinery in order to create places for live musicians. Neither in the previous judicial decisions of this court has it been held, nor in any statute enacted, that a dispute is a labor dispute which has no connection with or relation to terms or conditions of employment, collective bargaining, protection from abuses, or respective interests of employer and employee. " In the case at bar there is no actual employment at all. There is the use of a machine in place of a human relationship between one individual and another. Section 876-a (subd. 10, par. c) ^defines a labor dispute as any controversy concerning terms or conditions of employment, or concerning representation in arranging terms and conditions of employment, or any controversy arising out of the respective interests of employer and employee whether they stand in such relationship or not. All these words assume the existence of a human relationship. The words of this statute eo nomine relate to terms or conditions of employment, the right of representation for purposes of collective bargaining concerning such terms and conditions of employment, and the respective interests of employer and employee. Such respective interests of employer and employee must be interests that grow out of or have some relationship to employment. Advantage not connected with employment is not the interest referred to in the statute. To coerce an employer to commit a crime, or to pay a stale claim (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 262; Dorchy v. Kansas, 272 U. S. 306), even though the payment of such a claim may be to the material advantage of the employees, does not make such actions labor disputes or bring them within the terms of the phrase the respective interests of employer and employee and thus overrule the previous decisions of this court and of the Supreme Court of the United States. The cases of Goldfinger v. Feintuch (276 N. Y. 281), May’s Furs & Ready-to-Wear, Inc., v. Bauer (282 N. Y. 331) and Baillis v. Fuchs (283 N. Y. 133) were all cases where a mere inspection of the questions presented shows the legitimate and real labor interests there involved. Thus the previous decisions of this court have recognized that there are unlawful labor objectives and that the courts must take cognizance of the difference between an unlawful objective and an objective which has some legitimate connection with terms or conditions of employment or concerning an interest of an employer or employee, even though the parties concerned do not themselves stand in an employer-employee relationship.

There is in the case at bar no question raised concerning the dismissal of any employee on account of the introduction of machinery. In Scavenger Service Corporation v. Courtney (85 Fed. Rep. [2d] 825), decided since the enactment of the Norris-LaGuardia Anti-Injunction Act, it was held that the labor objective, to compel the discontinuance of price cutting, was an illegal labor objective. This was so held notwithstanding the claim that price cutting practices tended to depress the wage scale and thus involved an economic dispute. A labor dispute is an economic dispute, but not all economic disputes are labor disputes. In the Scavenger case the court said: We are clearly of the opinion that no labor question is involved, and the District Court was not therefore denied jurisdiction by reason of the Labor Injunction Act (Norris-LaGuardia Act, 29 U. S. C. A. §§ 101-115). Three decisions of this Court (citing cases) are decisive of this question. By no stretch of reasoning can we find a labor question involved in this controversy ” (p. 832).

A majority of the Appellate Division sought to limit the effect of the question herein decided by stating that they were passing solely on the right of the defendants to stop work in protest against the use of mechanical music. As we have pointed out earlier in this decision, the right to strike is not involved in this case. Also the right to strike does not prevent the issuance of an injunction against a continuance of the unlawful labor objectives sought herein by the defendant unions. The leaders of a labor union cannot make an illegal objective legal merely by the use of a legal method (the strike) to obtain that objective.

An attempt was made to rest this appeal on the employment of one Schavitch, against whom the Musicians’ Union has a grievance, as well as upon the employment of a nonunion pianist. This issue was found to be belated and was brushed aside by both the majority and minority in the Appellate Division and heed not concern us here.

It follows that the judgment of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

Lehman, Ch. J.

(dissenting). The defendant American Federation of Musicians (hereinafter referred to as the Musicians’ Union) is an unincorporated association which, according to its constitution, shall consist of local unions of musicians, the individual musicians who form such local unions, and conditional members as conform to its rules and regulations, as well as such organizations active in the field of music which may be granted a charter of affiliation with The American Federation of Musicians.” Its declared purpose is to unite all local unions of musicians, the individual musicians who form such local unions and conditional members of the American Federation of Musicians into one grand organization for the purpose of general protection and advancement of their interests and for the purpose of enforcing good faith and fair dealing, as well as consistency with union principles, in all cases involving or of interest to members and local unions or the Federation.”

The defendant International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States (hereinafter referred to as the Stagehands’ Union) is an unincorporated association, consisting, as found by the trial court, of persons employed as stagehands, stage technicians and stage electricians (hereinafter called ‘ stagehands ’); that the said union is the parent organization which has approximately seven hundred (700) locals in the United States and Canada.”

The plaintiff is a corporation organized to present public performances of grand opera upon the stage. It presented performances of the grand opera “ Faust ” in several cities in the Southern States, and employed more than fifty singers, choristers, dancers and other performers in connection with these performances. It also employed a permanent crew of six stagehands who were all members of the defendant Stagehands’ Union, and, in addition, employed local stagehands in the various cities and towns in which plaintiff produced its opera, to supplement its permanent crew. The stagehands employed locally were members of the defendant Stagehands’ Union and were hired through the respective locals of the defendant Stagehands’ Union.

The music, traditionally produced by an orchestra composed of instrumental musicians, was mechanically reproduced from records previously prepared for plaintiff’s use. Mechanical reproduction of recorded music as a substitute for the. traditional orchestra of living musicians had not been attempted previously in connection with any similar stage performances. The Musicians’ Union, concluding that mechanical reproduction of recorded music, as part of a stage production, would result in decrease of employment of professional musicians, objected for that reason to the plaintiff’s use of recorded orchestral music. The Musicians’ Union and the Stagehands’ Union are both members of the American Federation of Labor. They had agreed that in specified contingencies either party to the agreement might call upon the other to render “ all moral support ” in its controversies with an employer, and in some cases co-operation that might go beyond “ moral support.” For the purpose of compelling the plaintiff to abandon its use of such mechanical reproduction of music, the Musicians’ Union called upon the Stagehands’ Union for co-operation and that union, in turn, ordered its members not to render any service to the plaintiff. The plaintiff has demonstrated that it could present stage performances of grand opera without employing any members of the defendant Musicians’ Union but it cannot continue to conduct its business and to present stage performances of grand opera so long as the members of the Stagehands’ Union refuse employment by it. Claiming that “ unless the defendants are enjoined, at first during the pendency of this action and afterwards permanently, from continuing their unlawful practices, from the carrying out of the aforesaid conspiracy, and from prohibiting the members of the defendant, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, to perform services to the plaintiff, plaintiff’s business will be completely destroyed and an injunction during the pendency of this action is accordingly imperative,” the plaintiff has brought this action for an injunction.

After trial the court at Special Term granted the injunction which the plaintiff asked. The Musicians’ Union, its officers, members, agents, servants, employees, representatives and attorneys ” and the Stagehands’ Union and its officers, members, agents, servants, employees, representatives and attorneys ” have been permanently enjoined and restrained, among other things, from interfering with plaintiff’s employees and from directing, ordering, instructing or advising any person or persons to cease performing or not to perform services for the plaintiff, Opera on Tour, Inc., and from inducing, causing or procuring in any manner or by any device whatsoever, any person or persons or organization, association, corporation or group of which any of plaintiff’s employees may be a member or may be affifiatedwith or any group or groups of plaintiff’s employees to leave or not to enter the plaintiff’s employ or to cease performing services for the plaintiff or to cause or induce its members or others to leave or not to enter the plaintiff’s employ or to cease performing services for the plaintiff on the ground that, or for the reason that, the plaintiff, Opera on Tour, Inc., uses recorded_or transcribed or mechanically reproduced music in connection with its performances ” and both defendant unions have been directed “ forthwith to cancel each and every resolution, order, instruction, notice, message, or other communication heretofore given or sent, ordering, directing, instructing, advising, inducing or causing any person to cease performing services for or not to perform services for the plaintiff, Opera on Tour, Inc., on the ground that the plaintiff, Opera on Tour, Inc., uses recorded or transcribedjir mechanically reproduced music in connection with its performances or on any of the other grounds heretofore mentioned ”_and also “ forthwith to notify those heretofore affected by such resolutions, orders, instructions, notices; messages, or other communications heretofore given or sent, of the cancellation of the same.” The Appellate Division by a divided court reversed the judgment of trial court and dismissed the complaint.

There is no substantial controversy about the facts, and the problem presented upon this appeal is a simple problem. The plaintiff desires to conduct its business by the use of mechanical devices which will produce a result that could otherwise be obtained only by the employment of musicians. It produced evidence to show, that it would not be economically possible to conduct its business unless it can use the mechanical devices. The two defendant unions have determined that the use of mechanical devices for reproducing recorded music increases unemployment of members of the Musicians’ Union, and perhaps, indirectly, of members of affiliated unions engaged in stage productions. To compel the plaintiff to abandon the use of such devices, the Stagehands’ Union, at the request of the Musicians’ Union, has ordered its members not to work for the plaintiff. The question presented upon this appeal is whether a union or a combination of unions may be prohibited from calling a strike for such a purpose.

Judge Finch concedes in his opinion that individually and collectively, the members of any union may at any time refuse to work, because machinery is employed or for any other reason, and may strike in so doing ” and that a denial of the right would be in conflict with our decisions in May’s Furs & Ready-to-Wear, Inc., v. Bauer (282 N. Y. 331); Goldfinger v. Feintuch (276 N. Y. 281). He adds, however, that “what is here enjoined is the inducement by the Musicians’ Union of the Stagehands’ Union to enter into a combination to destroy the business of the plaintiff solely because machinery instead of live musicians is used.”

There is no evidence in the record and there is no finding that the Stagehands’ Union was induced by the Musicians’ Union to enter into a conspiracy to destroy the business of the plaintiff because machinery instead of live musicians is used or for any other reason and the judgment does not enjoin inducement by the Musicians’ Union to enter into a combination to destroy the plaintiff’s business. It-''does, as heretofore pointed out, enjoin both unions and each of them “ from interfering with plaintiff’s employees and from directing, ordering, instructing or advising any person or persons to cease performing or not to perform- services for the plaintiff * * * on the ground that, or for the reason that, the plaintiff * * * uses recorded or transcribed or mechanically reproduced music in connection with its performances, or on the ground that plaintiff uses foreign made records in connection with its performances, or on the ground that plaintiff uses transpositions or copies of records, or on the ground that Vladimir Schavitch is connected with or employed by plaintiff as artistic director to synchronize the voices of singers and performers with recorded, transcribed or mechanically reproduced accompaniment, or on any other ground which has its origin in or is due to steps or actions taken by the defendant unions to prevent the use by plaintiff of recorded or transcribed or mechanically reproduced music in connection with its performances.” It does not refer directly or indirectly to any combination to destroy plaintiff’s business for the very good reason that there has never been any claim, evidence or finding that the defendants conspired to produce that result. It seems to me that it is an injunction against a strike and nothing else. In fairness to the plaintiff and its attorneys, to the justice at Special Term and to the dissenting justices in the Appellate Division, there has not heretofore been any suggestion in the complaint, in the findings, in the opinions in the courts below or in the brief of the appellants that the defendant unions combined or conspired to destroy the plaintiff’s business. The trial justice found “ that the defendants Musicians’ Union and Stagehands’ Union combined and conspired to force plaintiff to abandon its use of recorded orchestral mude." That was the sole purpose of the concerted action of the two unions and if that purpose was lawful, agreement or concerted action, though called a conspiracy, to achieve that purpose is not unlawful. Though there is evidence and the trial justice found that the Musicians’ Union threatened to put plaintiff out of business unless it abandoned its use of recorded orchestral music ” the undisputed evidence and the findings conclusively establish that the purpose of the unions was to prevent the use of recorded music as a substitute for music played by members of the Musicians’ Union and the threat was only to use the full power of the unions to achieve that result.

The evidence establishes beyond possible contradiction, and the Appellate Division has found, that “ the actions of the defendants were all in good faith, without malice or ill-will, without primary or direct intent to injure or destroy plaintiff’s business, without fraud, force, coercion or intimidation of any kind, in the honest belief that such actions were necessary for the protection of the employment opportunities of their members, in furtherance of their economic interest in the continued employment of those in allied trades, and there was no effort on the part of the plaintiff to dispute the good faith of defendants.” Any threat which the Musicians’ Union may have made to put plaintiff out of business unless it abandoned its use of recorded orchestral music ” was concededly made without personal malice against the plaintiff, but solely to promote what the officers of the union in good faith believed to be for the best interest of the members of the unions, and the threat involved no implication that the unions would use any means to carry it out other than an order issued by the Stagehands’ Union to its own members not to work for the plaintiff or any other employer using mechanical or canned music in connection with stage performances.

The evidence justifies an inference that the plaintiff corporation was not organized or conducted primarily for profit but rather to present as a public service performances of opera in communities which could not pay the cost of performances if an orchestra of musicians were employed at union wages. We may assume, too, that if the defendants, or either of them, may lawfully order the members of the Stagehands’ Union to refuse to serve the plaintiff, the plaintiff' cannot resume performances, and as a result the members of the Stagehands’ Union, and other employees of the plaintiff,, will be deprived of opportunity to work, while no additional1, members of the Musicians’ Union will gain employment. We may assume, too, that if such question is within the competency of the court in this action, it might find that compulsion by the members of the Musicians’ Union or their friends to stop the use of mechanical reproduction of recorded music is not in the best interests either of the musicians or of the general public, that the chosen leaders of the unions ignore the irresistible power of economic and social forces. Even then the question would remain whether a court may compel a union to cancel an order to its members to strike, for the purpose of compelling an employer to abandon the use in his business of a mechanical device as a substitute for human labor ■— even where there is evidence sufficient to justify the conclusion that without such use the employer could not and would not continue his business and the result would be deterimental to the interests of the public yet without economic benefit or improvement hi the working conditions of the striking employees or of the members of their union or of any other union.

I have posed the question in form designed to be as favorable as possible to the employer seeking an injunction — perhaps in form more favorable to the employer than is justified in this case by the evidence or by any findings that might be based upon the evidence. I have done so because in my opinion the injunction issued by the court at Special Term constitutes an intrusion by the court into a field from which it is excluded under the law of the State as formulated in an unbroken line of judicial decisions, by-statute of the Legislature, and by the Constitution; and the fundamental principles involved should not be obscured, or the discussion complicated, by any question whether the reversal by the Appellate Division was dictated or might be justified upon principles less fundamental or far reaching. It is said that the courts should not sanction a strike to compel an employer to do something which he is unwilling to do, which will work ruin to him, injury to the public, and will confer no benefit upon the members of the defendant unions. I start discussion of the problem with the argumentative concession that if denial of an injunction constitutes sanction of the acts of which complaint is made, if the courts have authority to prohibit concerted action whenever concerted action constitutes an unwise or tyrannical abuse of power or, for any other reason, is contrary to the best interests of the public, then it cannot be said that the court at Special Term, in granting the1 injunction, acted without substantial ground.

Individual freedom of action, either alone or in concert, may be restricted or regulated in the public interest by statute or Constitution. Except as limited by the Constitution, the Legislature may prohibit action which in its opinion should not be sanctioned and outlaw conduct which previously was lawful; or the Legislature may sanction, and render lawful, conduct which previously was subject to penalty. Men combine in associations or unions to exercise in concert an influence or power which enables them to accomplish purposes and ends which, acting singly, they could not effect. The economic, social and political consequences of powerful combinations, large or small, of capital or of labor, of producers, of dealers, or of consumers, are profound, when, perhaps, even without the use of unlawful means, such combinations exert compulsion or pressure upon others to do their will — to pay prices which the combination demands, or to sell at prices which the combination is willing to pay, to conduct their businesses and, at times, to live their lives in accordance with the will of those who direct the copabinations. The welfare and the happiness of the community — even the continuance of orderly democratic government — may depend upon the extent to which the influence or power of such combinations are used wisely and unselfishly to promote the public good or blindly to promote selfish ends at the expense of the common good. The Legislature exercising its power, within the frame work of the Constitution, to promote the public welfare may restrict or enlarge the field within which such combinations may lawfully act, the purposes which they may lawfully promote, and even the means which they may lawfully use; and its actions there may properly be dictated by its considered opinion of the economic, social or political consequences and the effect upon the public welfare of combinations to achieve particular ends. Because the Legislature has such power and its action may properly be dictated by such considerations, a discriminating electorate will be guided in its choice of members of the Legislature by the economic, social and political opinions of the candidates.

The courts have no such power. A unanimous court approved and based their decision in Interborough Rapid Transit Co. v. Lavin (247 N. Y. 65, 74) on the statement in the opinion in that case that Demands of workmen may sometimes be fair and sometimes unfair. Combinations give the workmen a power of compulsion which may work harm to their employer, the public and even to themselves. Where the workmen do not combine they may be compelled by force of economic circumstances to accept unfair terms of employment. Such conflicting considerations of economic policy are not primarily the concern of the courts.” (Italics are new.) We have said, too, that A workman may leave his work for any cause whatever. He need make no defense, give no explanations. Whether in good or bad faith, whether with malice or without, no one can question his action. What one man may do, two may do or a dozen, so long as they act independently. If, however, any action taken is concerted; if it is planned to produce some result. it is subject to control. As always, what is done, if legal, must be to effect some lawful result by lawful means, but both a result and a means lawful in the case of an individual may be unlawful if the joint action of a number.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260, 262.) The primary concern of the courts in such case is whether the end sought is lawful.” In some cases where the dividing line between the lawful and the unlawful is uncertain, a judge, in defining what is lawful, will, perhaps inevitably, be influenced by bis own economic, social or political views. Nevertheless, the function of the courts is to vindicate conflicting legal rights in accordance with legal principles, not in accordance with the views of the judges in the court on economic or social questions. The legal principles which the courts should apply where concerted action by the members of a labor union is challenged, have been formulated in the past in authoritative decisions of the court and judicial decision has been supplemented by legislative decree. In my opinion the assertion of authority by the corut in this case to enjoin the defendant unions from calling a strike of their members does not accord with judicial decision and legislative decree, which this court has said is valid under the Constitution.

Consideration of the effect of the legislative decree may profitably be postponed until the effect of earlier judicial decisions of this court has been discussed. I emphasize of this court ” for, though the decisions of this court in cases involving the power of the corut to enjoin a union from ordering a strike to achieve labor objectives which, in the opinion of the judges, are perhaps not in the true interest of the striking employees or of the public, accord, I think, -with the weight of authority in other jurisdictions, yet in some jurisdictions — and notably the Supreme Court of Massachusetts, as I shall show hereafter — have, by a different approach to the problem, at times reached conclusions inconsistent with the concepts of law long and consistently accepted by this court. (See The Labor Injunction,” by Frankfurter and Greene, p. 29; Stearns Lumber Co. v. Howlett, 260 Mass. 45, at p. 65.)

Here the .objective sought is to compel producers of stage performances to abandon the use of mechanical devices which take the place of human labor. I agree with the statement in the opinion of Judge Finch that “ in essence the case at bar is the same as if a labor union should demand of a printing plant that all machinery for typesetting be discarded because it would furnish more employment if the typesetting were done, by hand.” As in the case suggested the union is asserting a right to insist that machinery be discarded in order that manual labor may take its place and thus secure additional opportunity of employment,” and though in the suggested case the injury to the public would perhaps outweigh more overwhelmingly possible benefit to labor, the difference is one of degree, not of principle, and if the courts are free to weigh the interest of the public against the self-interest of the union members, then argument not without force may be made to sustain the decision of the court at Special Term.

I assume argumentatively that the unions have no dispute with the employer concerning the wages, hours of employment, health, safety, right of bargaining, or other incident of the employment of any member of the Stagehands’ Union or any other person presently in the employ of the plaintiff, and that the objective of the strike is not to improve the conditions of such employment, but to compel the employment of more musicians by stopping the use of musical devices operated,” as Judge Finch points out, “ in place of the employment of five musicians.” That the use of machines which displace men causes unemployment among those displaced is obvious; though at times the resultant saving of labor cost may so increase sales of the product that loss of employment by one set of workers may be offset by increased employment of other workmen or benefit to the public may, in the minds of reasonable men, far outweigh the harm caused by loss of employment in the group displaced by the- labor-saving machine. In this case it was shown that the number of professional musicians employed in public performances has been enormously reduced by the use of talking machines, radio, or other devices for reproduction of music. Is it unlawful now for musicians and members of affiliated unions, likewise employed in stage productions, to combine to organize strikes with the objective of compelling employers to abandon the use of such devices, and thus stop further inroads and to regain the loss of employment already suffered?

Heretofore this court has unequivocally affirmed the right of workmen to combine for similar objectives. Here is an economic conflict between workers and producers. The workers seek to compel the producers to employ more men than the producers desire to employ, or than are required for the conduct of their business in manner which is acceptable to the public and which will produce greatest profit to the producers. The labor-saving machine displaces labor and reduces costs. That is its purpose. By displacing labor it causes unemployment in some places; by reducing costs it may make it possible to conduct at a profit a business which would otherwise be doomed to failure. A combination to compel the abandonment of cost-reducing devices may thus be a threat of ruin to a business already upon a precarious economic footing. Here it is such a threat to the plaintiff. Almost every strike indeed involves threat of ruin to the employer unless the employer accepts the demands of the strikers, for ordinarily strikes are successful only where the employer concludes that to run his business he must make terms with the strikers. None the less a strike to achieve a legitimate economic purpose cannot be outlawed because if successful some employers will no longer be able to conduct business at a profit; nor is a combination unlawful because it includes all the workers within a trade and thus no employer can find workers who know that trade and are willing to accept employment unless the employer reaches an agreement with the members of the combination. The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire trade or business. It may be as interested in the wages of those not members or in the conditions under ¡which they work as in its own members because of the influence of the one upon the other.” (Italics are new.) (Exchange Bakery & Restaurant, Inc., v. Rifkin, supra, p. 263.)

These principles have been established too firmly and too long to be repudiated now; but we are told that these principles do not apply here because the plaintiff employs no members of the Musicians’ Union and, therefore, the combination is not for the purpose of improving the conditions under which the members of that union work and that the evidence supports a finding that the members of the stagehands’ unions are not striking to improve the conditions under which they work but solely in order to compel the plaintiff to employ workers whom the plaintiff does not need and perhaps cannot afford to employ. Assuming arguendo that this is true, the conflict is still between an employer and employees who seek to improve the economic position of workmen in their own trade by compelling the employment of more workers. It is an economic conflict, nothing else, and this court has said that “ it is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict.” (Stillwell Theater, Inc., v. Kaplan, 259 N. Y. 405, 412.) Thus the fundamental question here presented is whether in this State a strike to compel an employer to discard a laborsaving device and to employ more human workers is within the " allowable area of economic conflict.”

Judge Finch and the dissenting judges in the Appellate Division have found in Haverhill Strand Theatre, Inc., v. Gillen (229 Mass. 413, 417, 418) support for their holding that it is not within that allowable area,” though the appellant does not urge that case as authority here. Perhaps the appellant is wise because, though a similar question was there presented, an analysis of the opinion shows that the decision is based upon doctrines accepted in Massachusetts but repudiated here and in other jurisdictions. The Massachusetts court made entirely clear the question it there determined, stating: “ The question propounded to the court by the agreement of parties is this: Is a combination between musicians a legal one by which a plaintiff is compelled to employ a number of musicians specified by the members of the combination if he wishes to employ any member of the combination, even though it be the fact that in plaintiff’s opinion the employment of a single musician is the most advantageous way of conducting his (the plaintiff’s) business and that the employment of more than one musician will cause him pecuniary loss.” To that question the Massachusetts court answered “ No.” To the same question, this court, in J. H. & S. Theatres, Inc., v. Fay (260 N. Y. 315), unhesitatingly and unanimously answered “Yes.” (See, also, Baillis v. Fuchs, 283 N. Y. 133.) Now, for the first time, without pointing out any ground of distinction, it abandons its long-established policy that “it is not within the province of the courts to restrain conduct which is within the allowable area of economic conflict ” and ventures to command two unions to cancel an order to their members to strike in order to compel an employer to employ more workmen than the employer (and the court) regard as sufficient and most advantageous.

Judge Finch finds authority for the injunction also in some cases in the Federal courts and stresses particularly Dorchy v. Kansas (272 U. S. 306) as a holding that coercion of an employer to pay a stale claim is unlawful “ even though the payment of such a claim may be to the material advantage of the employees.” In that case the only question presented was whether a statute which restricted or prohibited strikes in the mining; industry constituted a denial of the liberty guaranteed by the Fourteenth Amendment if applied to strikes called, as the court pointed out, “ to collect a stale claim due to a fellow member of the union who was formerly employed in the business.” Such a strike the court said was unlawful and it added that “ in the absence of a valid agreement to the contrary, each party to a disputed claim may insist that it be determined only by a court ” (p. 311). There can be no possible inference that payment of a stale claim to a former employee may be to the material advantage of the employees ” and I can find no analogy between a purpose to collect a stale disputed claim of a former employee and a purpose to compel the abandonment of machinery which displaces workmen. I do not pause to analyze the other cases cited. I content myself by stating that as I read those decisions they lend little if any support to the claim of the plaintiff here.

The court’s command to the unions to cancel their strike order is not only contrary to the policy of the State as established by an unbroken line of judicial decisions, but it disregards a direct and clear legislative mandate that such a strike is not unlawful and may not be enjoined. No court may under the statute directly or indirectly prohibit a strike, conducted peacefully and in orderly fashion “ in any case involving or growing out of a labor dispute.” The statute defines a labor dispute as follows: “ The term labor dispute ’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controvery 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.” (Civ. Prac. Act, § 876-a, subd. 10, par. c.) The validity of the statute is not now challenged. It could hardly be since this court has in careful and comprehensive opinions sustained and applied the statute. (Goldfinger v. Feintuch, 276 N. Y. 281, opinion by Finch, J.; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 N. Y. 331, opinion by Finch, J.; Baillis v. Fuchs, 283 N. Y. 133, opinion by Sears, J.)

We are told, however, that the statute does not apply here because there is no labor dispute. Why there is no “ labor dispute ” here remains a mystery to me. Reliance is placed upon Thompson v. Boekhout (273 N. Y. 390), where this court held that there can be no labor dispute where there is no relation of employer and employee and that a strike called to compel the owner of a business to hire employees though he desires to run his business alone is unlawful. Here, however, there was relation of employer and employee, between the plaintiff and the members of the Stagehands’ Union, and, therefore, the case of Thompson v. Boekhout does not apply. The distinction was clearly pointed out in the opinion by Sears, J., in Baillis v. Fuchs (283 N. Y. 133). Judge Finch in May’s Furs & Ready-to-Wear, Inc., v. Bauer (282 N. Y. 331, 339) has pointed out that the statute in explicit terms “ provides that if the other requisites are present then a labor dispute shall be found to exist ‘ regardless of whether or not the disputants stand in the relation of employer and employee.’ (Subd. 10-c.) It is undisputably clear that the existence or nonexistence of the employer-employee relation cannot be the factor by which to determine the presence or absence of a labor dispute.” It follows that the controversy here is no less a labor dispute because the strike of the plaintiff’s employees is primarily to assist members of an affiliated union in the same industry in an economic conflict for the purpose of procuring employment. That is a dispute “ concerning employment relations ” and under the express terms of the statute is clearly a labor dispute. The unambiguous language of the statute and what was said and decided in May’s Furs & Ready-to-Wear, Inc., v. Bauer (supra) leaves, I think, no room for doubt on that point. (See, also, Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, decided November 18, 1940.)

The judgment should be affirmed.

Bippey, Lewis and Conway, JJ., concur with Finch, J.; Lehman, Ch. J., dissents in opinion in which Loughran, J., concurs; Sears, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author:
Lewis, J. Conway, J.
      Loughran, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Martin Goldstein and Harry Strauss, Appellants.
    Argued March 14, 1941;
    decided April 24, 1941.

      I. Maurice Wormser, Conrad H. Ratner, Emanuel Rosenberg and Herman Reich for Martin Goldstein, appellant.

      Daniel H. Prior, Harry G. Anderson and Samuel Bader for Harry Strauss, appellant.

      William O’Dwyer, District Attorney (Solomon A. Klein, Henry J. Walsh and Burton B. Turkus of counsel), for respondent.
   Lewis, J.

Shortly before midnight of September 4, 1939, a woman living near the intersection of Filmore avenue and East Fifty-second street in the borough of Brooklyn ventured out to investigate the source of a high flame which she had observed mounting from a vacant lot adjacent to her home. When she had partly extinguished the fire from which the flame arose she saw a human head emerge from charred wrappings. The body was that of Irving Feinstein who had met his death in a manner which later gave rise to the present criminal action.

The two appellants, Martin Goldstein and Harry Strauss, now stand convicted of murder in the first, degree upon an indictment which charged that they wilfully, feloniously and' of malice aforethought, killed Irving Feinstein, by strangling him with a rope, and setting fire to his body.”

An important factor in the People’s case was the testimony of Abraham Reles, concededly an accomplice, who, as a witness for the prosecution, described a sequence of events in which the defendants participated and which led to the homicide.

Asserting upon this appeal that they were deprived of a fair trial, the defendants challenge instructions given to the jury by the trial judge which related to the statutory requirement that conviction could not be had upon the testimony of the accomplice Reles or of any other accomplice unless there was corroboration by such other evidence as tended to connect the defendant with the commission of the crime. Reference to the testimony given by Reles and by other witnesses will serve to make clear our problem.

For several weeks prior to the homicide Reles and the two defendants had been in search of “ Puggie ” (Irving) Feinstein who was not then personally known to them. Their search had been set in motion by one Albert Anastasio whom they recognized as their “ boss ” and who had given Strauss A contract to take * * * ‘ Puggie ’ ” who, they were told, comes from Borough Park and 14th Avenue.” During the evening of September 4, 1939, Reles, Goldstein and Strauss met near their “ hang-out ” at the corner of Saratoga and Livonia avenues in Brooklyn and, while talking together, were approached by a stranger who inquired where he could find “ Tiny.” As he walked away, without the information which he sought, Strauss asked him, Who should I say was here? ” To this the stranger replied, You tell him 1 Puggy ’ from Borough Park and 14th Avenue.” This surprising response was enough to inform the defendants and Reles that their search was at an end — ■“ Puggy ” Feinstein was there within their reach. It was in these circumstances that Strauss suggested to Feinstein that he would help him find his friend Tiny.” While Feinstein left the group to inform friends in his car that they should wait for him, the defendants and Reles quickly made plans by which Feinstein was to be driven about town for an hour by the defendant Goldstein in a pretended search for “ Tiny and eventually was to be brought to the home of Eeles. Meantime Eeles would go directly to his home to prepare to receive Feinstein while Strauss went to the home of Anastasio to ask if it is O. K. to take him off the comer.” Plans then made were carried out in detail. Strauss went to Anastasio and returned to the Eeles house with the report that Albert said O. K., to do it clean.” Meanwhile the defendant Goldstein, in a car owned and driven by the "witness Maffetore — who had happened to be standing near the group and was asked to lend the use of his car — accompanied Feinstein by a circuitous route to the home of Eeles where Strauss and Eeles had been making preparations for his reception. Eeles had awakened his mother-in-law, the witness Mrs. Kirsch, from whom he inquired and was informed as to where a rope and an ice pick could be found. They then returned to the living room where they turned on the radio to muffle any noise which might ensue and arranged themselves by stationing Strauss at one side of the entrance door, with a rope and ice pick beside him, and Eeles on the opposite side of the room. Soon Goldstein and Maffetore arrived at the Eeles house with Feinstein who had been told that his friend “ Tiny ” was there. As Feinstein entered and advanced into the living room Strauss sprang upon him. In the melee which followed the efforts of Eeles, Goldstein and Strauss were required to overcome the stranger’s resistance. Finally, however, the struggle was at an end and by the combined efforts of Eeles and both defendants a rope was knotted about their victim’s neck and his knees were bound to his chest. At this point the defendant Strauss suggested that the body should be burned to avoid detection. To that end and upon instructions from Strauss the defendant Goldstein took from Maffetore — who, it is claimed was standing at or near the entrance door — the keys to Maffetore’s car and drove away to secure gasoline. When Goldstein returned Strauss said to him, You take him [Feinstein’s body] down the dumps, down on Flatlands Avenue and Ealph. While you are putting the match to him nobody will know the difference, the dumps are always burning.” Heles then backed the Maffetore car into the driveway to a point opposite a side entrance and, with the aid of Strauss, he placed the body on the floor of the tonneau. As Goldstein entered the tonneau and seated himself in a position to shield the body, Maffetore took the driver’s seat and the car moved out to the street and away. The course taken by the car was according to directions given by Goldstein who finally ordered it to a stop. He then rolled the roped body out of the car and into a lot where he poured gasoline on it and set it afire. Having thus started what is described as a big blaze ” Goldstein returned quickly to the car and directed Maffetore to drive fast. As they reached the intersection of Saratoga and Livonia avenues they nearly collided with a car driven by the witness Seymour Magoon who was a friend of Gold-stein. When the two cars stopped Goldstein left the Maffetore car and, taking with him the empty can in which he had purchased the gasoline, he entered the Magoon car. After telling Magoon what had transpired Goldstein asked him to drive to the gasoline filling station where he would return the can and pay for the gasoline. Magoon advised against the return of the can, suggesting that It may have finger prints on it.” However, he drove Goldstein to the gasoline station where the attendant — the People’s witness Arent — was paid one dollar. Goldstein did not return the can but told Arent it had been lost. Later it was wiped off with a handkerchief and thrown out upon a pile of rubbish at the side of a street along which the car passed as it returned to the corner of Saratoga and Livonia avenues where Goldstein had joined Magoon. There Goldstein met Strauss who, at the close of a conversation, handed him thirty dollars.

The jury which has convicted the defendants learned of these events from testimony of the accomplice Heles — who admitted he had perjured himself in another trial and that he had participated in other murders; from Maffetore and Magoon — each of whom, as the evidence shows and the trial judge charged, bears a sinister record in crime; and from the witnesses Arent and Mrs. Kirsch. It was thus made as obvious to the jury upon the trial as it is to us upon this appeal that the testimony of Heles, Maffetore and Magoon, upon essential phases of the case, was from polluted sources.

The criminal tendencies of these three witnesses — which the jury may have treated as facts which are but a warning that caution should be used” in valuing their testimony (People v. Cohen, 223 N. Y. 406, 422; People v. Seidenschner, 210 N. Y. 341, 358) — have caused us to consider the charge with scrupulous care. (People v. Katz, 209 N. Y. 311, 336; People v. Becker, 215 N. Y. 126, 140; People v. Cohen, supra, p. 412; People v. Crum, 272 N. Y. 348, 353. See, also, 7 Wigmore on Evidence [3d ed.], § 2058.) The added fact that no witness was called by the defendants to disprove their connection with the crime, makes it of utmost importance, in justice to their rights, that the jury was instructed as to the corroboration which the law requires of an accomplice.

That requirement has taken the form of a statutory mandate — " A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” (Code Crim. Proc. § 399.)

The statute is not satisfied if the corroborative testimony tends only to establish the credibility of the accomplice. “ The corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show that defendant was implicated in the crime. * * * The independent evidence must be material evidence other than that of the accomplice and must fairly and reasonably tend to connect the defendant with the commission of the crime. * * * It may not depend for its weight and probative value upon the testimony of the accomplice. It need not, alone and by itself, establish that defendant committed the crime. But where the corroborative evidence standing alone has no real tendency to connect defendant with the commission of the crime, it is insufficient.” (People v. Kress, 284 N. Y. 452, 460; People v. Maione, 284 N. Y. 423, 425; People v. Feolo, 284 N. Y. 381, 386, 388; People v. Reddy, 261 N. Y. 479, 484; People v. Dixon, 231 N. Y. 111, 116.)

We are to determine whether the jury was instructed as to the clear mandate of the statute and its legal requirements as interpreted by the rulings cited above. Upon such inquiry, The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision.” (People v. Russell, 266 N. Y. 147, 153; People v. Johnson, 185 N. Y. 219, 232.)

After quoting to the jury verbatim the language of section 399 of the Code of Criminal Procedure, the trial judge charged: That does not mean that there has to be independent proof of every essential element in the crime. That means two things: first, there must be proof that the crime has been committed, from an independent source, and second, there must be proof of some fact which ties the defendant in in such a way that it will convince you that the accomplice was telling the truth.” At another point, after a recital of the long criminal record of the accomplice Beles, as bearing upon the weight which the jury should give to his testimony, the charge continued: If you find other testimony in the case from independent sources corroborates different steps as related by him [Beles], connecting the defendants with the crime, if that satisfies you he was telling the truth, it is for you to decide.”

Although the appellants may point to minor inaccuracies in these and other statements in the charge upon the rules of law governing the corroboration of an accomplice, we do not think, when the charge as a whole is considered, that the jury was either misled or confused as to the rules which should govern their deliberations upon that branch of the case. (People v. Russell, supra, p. 153.) In reaching that conclusion we are influenced by one of the last instructions to the jury given by the trial judge when, upon request made on behalf of both defendants, he charged “ that even if the jury believes the testimony of the witness Reles they cannot convict on his testimony unless it is corroborated by other independent, believable evidence tending to connect the defendant with the commission of the crime.” The accuracy and clarity of that statement of law has not been criticised. It finds full support in our recent ruling in People v. Kress (supra, p. 460).

Both defendants have challenged the propriety of the charge in other particulars. On behalf of the defendant Strauss the additional argument is made that he was deprived of his constitutional rights by being forced to trial without being afforded a judicial inquiry as to his ability either to comprehend the charges against him, or to confer with counsel and to make his defense. We have examined the record with care and have considered the errors thus assigned.

Finding that the substantial rights of each defendant were protected at the trial, we conclude the judgments of conviction should be affirmed.

Conway, J.

(concurring). I concur in all that Judge Lewis has written. I go further, however.

In the portion of the charge quoted in the dissenting opinion, the court called the attention of the jury to the facts and circumstances of the case. He spoke of corroboration but at some point ceased speaking of it in order to go on to the facts. That much is clear. Where did the court cease discussing corroboration in that portion of the charge? That is the question.

The court said: “ That means two things: first, there must be proof that the crime has been committed, from an independent source, and second, there must be proof of some fact which ties the defendant in in such a way that it will convince you that the accomplice was telling the truth. It does not have to be overwhelming, but if there is proof from independent sources of different steps which show you that Reles was telling the truth, and you believe his story, it is enough.” (End of that portion of the charge on corroboration; beginning of charge on facts.)

Whatever human witnesses may do as to stating what did or did not happen, whatever lapses of memory there may be on the part of human witnesses, there are certain physical fads which cannot be altered, cannot be changed. The first fad in this case is the condition of the body when found burning in the lot. You have pictures of it, how this body was trussed up and tied, to correspond with the tale as to what was done to Feinstein that night. That is a physical fad. Then you have other testimony. You have the testimony of Maffetore. Maffetore said he was at the comer with his car and Goldstein came over and told him, 1 Get that guy/ indicating somebody, ‘ into your car/ and as it turned out to be Feinstein, got into his car and Goldstein told him, ‘ Drive him to Tiny’s house.’ He said he knew where Tiny lived, and he drove to his house, Goldstein got out and he was out a couple of minutes, and came back and said, ‘ He is not in/ to drive to Heles’ house. He said he didn’t know where it was. He said, ‘ I’ll tell you; drive the way I tell you/ and he drove to Heles’ house. When they got there, Goldstein got out, went in the house, came out and said, ‘ Come on in/ and the three of them went in the house, Goldstein, Feinstein, and Maffetore, in that order.” (Fols. 1887-1890.) (Paragraphing, italicizing and insertion in parenthesis are mine.)

In the new paragraph, as made by me, there is nothing about Heles or corroboration. The word “ then,” as underscored, connects what precedes in the same paragraph with what follows. The portions italicized have no relation to a charge as to corroboration of Heles. That is self-evident. Somewhere, therefore, in those sentences the court passed from the question of corroboration to a treatment of the facts generally. It is clear to me that it occurred at the sentence commencing with the words: Whatever human witnesses * *

If the court reporter had paragraphed this portion of the charge as I have, it would have been clearer, but the paragraphing of a court reporter has not finality. I think there is a misreading of a sentence and a separation of it from its proper context.

Loughran, J.

(dissenting). Respecting the People’s accomplice-witness Reles, the trial judge in his charge to the jury said: “ Reles, as a matter of law, is an accomplice, and on his testimony alone there cannot be any conviction. You have heard a lot in this case about accomplices and corroboration, what is this and what is that? Now I will tell you what the law is. The statute says, ‘ A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’ That does not mean that there has to be independent proof of every essential element in the crime. That means two things: first, there must be proof that the crime has been committed, from an independent source, and second, there must be proof of some fact which ties the defendant in in such a way that it will convince you that the accomplice was telling the truth. It does not have to be overwhelming, but if there is proof from independent sources of different steps which show you that Reles was telling the truth, and you believe his story, it is enough. Whatever human witnesses may do as to stating what did or did not happen, whatever lapses of memory there may be on the part of human witnesses, there are certain physical facts which cannot be altered, cannot be changed. The first fact in this case is the condition of the body when found burning in the lot. You have pictures of it, how this body was trussed up and tied, to correspond with the tale as to what was done to Feinstein that night. That is a physical fact..”

I believe that these forthright sentences would denote to the mind of the average person the idea that the condition of the body of the murdered man (Feinstein) was a physical fact which in itself — irrespective of the quality of the testimony of the human witnesses — was in law sufficient support for the “ tale ” of Reles. The trial judge, as I believe, said and intended to say that evidence in corroboration of an accomplice is legally sufficient when it shows to the jury that the accomplice told the truth and that, therefore, it is enough that his testimony correspond with the unalterable and unchangeable physical facts of the crime charged.

If this was the meaning of the charge, then these judgments of conviction cannot stand.

Under the law of this State, the test of the s’lfficiency of evidence adduced in confirmation of an accomplice is that it shall tend in some degree to connect an identifiable person with the commission of the crime. (People v. Feolo, 284 N. Y. 381; People v. Kress, 284 N. Y. 452.) In fact we have specifically held that evidence which merely shows that the crime was committed in the fashion described by an accomplice is not such corroboration of his testimony as is required by the statute. (Code Crim. Proc. § 399; People v. Maione, 284 N. Y. 423.) Even so, this court now finds only “ minor inaccuracies ” in the foregoing words of the charge. The cases I have just cited are cited in the prevailing opinion to sustain the conclusion of the court that “ the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision.”

“ In reaching that conclusion,” say the court, we are influenced by one of the last instructions to the jury given by the trial judge, when, upon request made on behalf of both defendants, he charged — ' that even if’the jury believes the testimony of the witness Heles they cannot convict on his testimony unless it is corroborated by other independent, believable evidence tending to connect the defendant with the commission of the crime.’ ” The court is impressed by the accuracy and clarity of that statement of the law.” But that statement must be taken to have been qualified by the earlier and more colorful words of the trial judge which I first put down above ■ — unless indeed we are to ignore the repeated admonition in the prevailing opinion that the charge is to be read as a whole. More than that, this last quoted, single conventional sentence of the trial judge (which has so much influenced this court) was a mere paraphrase of the statute (Code Crim. Proc. § 399). In truth, that sentence added little to the charge. The better practice for the court in a criminal case, emphatically in a capital case, even when uninvited by the defendant, is to present to the jury the case on trial in all the phases in which the jury ought to consider it. * * * The trial judge should not as a rule limit himself to stating good set terms of law culled from the codes and the reports. Jurors need not legal definitions merely. They require proper instructions as to the method of applying such definitions after reaching their conclusions on the facts.” (Pound, J., in People v. Odell, 230 N. Y. 481, 488.)

So we come back to the instructions of the trial judge which are first set out in this opinion. The jury actually had nothing else to go by in appraising the value of the testimony of Reles. These instructions are simple combinations of normal English words. Yet the difference that now divides this court is one in respect of the ordinary meaning thereof. 'The majority say that the trial judge thereby gave expression to the proposition that, The statute is not satisfied if the corroborative testimony tends only to establish the credibility of the accomplice.” To my mind, the words of the trial judge say quite the contrary. I can only add that the jury’s understanding of any connotation of those words is beyond our finding out.

But the ultimate question in this case is not a question of rhetoric. ■ The ultimate question is one that goes to fundamentals of the fair administration of the criminal law. “ If trial by jury is to be maintained, the right of every accused person to be tried in accordance with established forms of law must be respected.” (People v. Marendi, 213 N. Y. 600, 619.) It is to be said for the trial judge that high authorities in other places would sanction his charge as I have read it. (7 Wigmore on Evidence [3d ed.], § 2059, p. 327.) When so read, however, it is opposed to the settled construction of the statute which in this State regulates the sufficiency of proof required to support the testimony of an accomplice. The reason of the statute is this: “ A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the person, that is really no corroboration at all.” (See People v. Feolo, supra, at p. 388.)

I believe that the charge of the trial judge cannot fairly be reconciled with this principle and that in consequence the defendants did not have a legal trial. Accordingly, I vote to reverse the judgments of conviction and to grant a new trial.

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

Judgments of conviction affirmed.


author: Rippey, J. Conway, J.

text:
    Milton Meiselman, by Fanny Meiselman, His Guardian ad Litem, Appellant, v. Crown Heights Hospital, Inc., et al., Respondents.

      Submitted March 7, 1941;
    decided April 17, 1941.

      Dora Aberlin for appellant.

      Thomas H. Clearwater and Lorenz J. Brosman for respondents.
   Rippey, J.

In the complaint plaintiff has set up four separate causes of action, three against the defendants individually and one against them jointly, for damages for personal injuries suffered by the plaintiff through negligence and malpractice which resulted in osteomyelitis and abandonment of his case before he was cured and while he was desperately ill and helpless. Plaintiff furnished a bill of practiculars purporting to be in response to a demand that certain particulars of the allegations of the complaint be furnished. So far as it goes, among other things, it purport's to contain certain particulars of the claims of plaintiff against the defendant Schoolnik of negligence and malpractice and against the defendant hospital and the defendant Koster of negligence and malpractice in treatment and against all of the defendants of a premature discharge of the patient and abandonment of the case. Since a demand for the bill is not in the record, it is impossible to say whether or not it places any limit on the pleadings. The course of the trial would seem to indicate that it did not. Before plaintiff was given an opportunity by the trial judge to complete his proofs, on motion of defendants the court dismissed the complaint on the merits. From a judgment making that dismissal effective, plaintiff appealed to the Appellate Division, where the judgment was affirmed. Upon the review in this court the facts must be viewed in the aspect most favorable to the plaintiff and every permissible inference from those facts in favor of plaintiff must be indulged (Kraus v. Birnbaum, 200 N. Y. 130, 133).

Among other things, the following facts briefly stated appeared in the record at the time the nonsuit was granted. The defendants Schoolnik and Koster were physicians licensed by the State of New York to practice their profession and the defendant hospital was a private institution operated for profit of which the defendant Koster was the chief of the surgical staff. The plaintiff, then a boy eight years of age, was kicked in the left knee by another boy in the latter part of November, 1931, and suffered an injury. Shortly afterwards the boy' complained that his leg hurt and his father called a physician to attend him. The doctor diagnosed the trouble as a case of grippe and prescribed for his fever. The boy found no relief and the defendant Schoolnik was summoned to attend him. He examined the boy and stated that his situation was such that he was unable to treat him and suggested that the defendant Koster, a specialist, be called. Koster ordered immediate hospitalization and sent the boy to the defendant hospital. The boy was desperately ill and required a blood transfusion and Koster operated first on one leg and then on the other and encased both legs in plaster casts. The trouble was diagnosed by Koster as osteomyelitis, a pus-forming infection of the bone. The boy was at the hospital for a period of about eighteen weeks and the hospital bill amounted to approximately a thousand dollars upon which the father of the boy had been Unable to pay more than $349. Since the father was unable to pay the balance of the bill after various continuing demands on the part of the defendants Koster and the hospital, the defendants discharged the boy from further hospitalization and the father took the boy home, although refusing at the time to deliver a release to the hospital authorities as demanded. At the time the boy went home he was not cured, he had casts on both legs and both legs had open wounds through which pus was draining through windows in the plaster casts and he still ran a high temperature. The father testified that the doctors told him that the boy did not need further hospitalization, that it was unnecessary to transfer him to a charitable hospital and that defendant Schoolnik would take care of the boy at home under Koster’s supervision and that Koster told him, in substance, that Schoolnik had seen the dressings made through the windows in the casts and was competent to handle the case. The father demurred from removing the boy from the hospital but was assured by the doctor that it was proper to keep the boy at home and that he would be given proper care and attention. He said that Schoolnik explained to him that it would be necessary to put dressings on the wounds once in each five days or a week and that he would come in and do the dressings. The evidence is undisputed that Schoolnik had never had a case of the kind before and that during the subsequent five weeks during which the boy remained at home he failed on any occasion to consult the defendant Koster. The boy was suffering intense pain and was crying on occasions. Schoolnik attempted to remove parts of the casts on account of the increasingly bad condition of the legs and while doing so caused lacerations and when the father protested and asked him whether that was the way they handled things at the hospital Schoolnik replied that it was not but that nevertheless it amounted to nothing and that the legs would heal up. Schoolnik admitted at the outset, as above stated, that he knew nothing about a case of the kind, was unable to treat it and for that reason had called in the specialist. After the boy had been at home for some five weeks, at the request of Schoolnik he was sent to the Kings County Hospital on May 2, 1932. Between that time and October 17, 1936, the boy was hospitalized and treated alternately at the Kings County Hospital and the Blythedale Institution. On the latter date he was returned to his home with instructions to return to the clinic regularly, where he was a patient until the time of the trial. At the time of the trial the boy was severely crippled, walked with a limp, and one of his legs was stiff.

Upon the trial Dr. Degenhardt, who supervised the treatment of the boy during the first few months that he was at the Kings County Hospital, was called as a witness. The doctor testified that, when the boy was admitted, both of his legs were in casts from the knee joints down and the boy was running a temperature' of 101°. He removed the casts and then found that the right ankle over the middle malleolus had a healed sinus, that there had been a long, deep wound over the entire length of the left tibia, that there was a sinus over the lower end of the left femur and that there were large open wounds which were dirty and had thick white crusts about them. He said that there was a moderate amount of thick, tenacious, purulent discharge from the region of the left tibia and that X-rays, subsequently taken, showed destruction of the proximal two-thirds of the left tibia. He diagnosed the condition as chronic osteomyelitis of the right tibia, left tibia and femur and indicated that it had existed prior to admission in an acute stage. The infectious process and drainage continued until about May 30th, when the improvement was so far advanced that the doctor put on new casts without drainage windows on both legs from the toes to the upper third of both thighs.

The records of the case from the defendant hospital were admitted in evidence on plaintiff’s case, as was a portion of the testimony of the defendant physicians taken before trial.

On the record as it stood when the nonsuit was granted, plaintiff had made out a prima facie case on the issue of malpractice against the defendant physicians and of willful abandonment of his case against defendants Hosier and the hospital. Sufficient evidence was presented to warrant a jury in awarding damages on those counts (Carpenter v. Blake, 75 N. Y. 12; Pike v. Honsinger, 155 N. Y. 201; Benson v. Dean, 232 N. Y. 52). At least, the jury might have found that the defendants had prematurely and willfully discharged themselves from attention to the case while the patient was desperately ill and before he was cured without giving information or advice as to subsequent treatment or the desperate and dangerous condition and character of the disease, all of which led to aggravation of his condition and illness (Benson v. Dean, supra). Common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly have suggested to the jury that the condition of the boy at the time that he was left without hospitalization and abandoned by the defendants was not compatible with skillful treatment (Benson v. Dean, supra). That the plaintiff’s parents were misled by the conduct of the physicians to the plaintiff’s detriment is inferable from the facts adduced (Carpenter v. Blake, supra). Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact, to furnish the basis for a determination by a jury of unskillful practice and medical treatment by, physicians; hut where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary (Dougherty v. Milliken, 163 N. Y. 527, 533; Benson v. Dean, supra; Shaw v. Tague, 257 N. Y. 193; Finn v. Cassidy, 165 N. Y. 584; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; Schutz v. Union Ry. Co., 181 N. Y. 33). Notwithstanding that the burden of proof did not change, upon the record as left at the time the non-suit was granted the burden of going forward with the case rested upon the defendants (Benson v. Dean, supra).

At the outset of the testimony of Dr. Degenhardt he stated that he produced the records of the hospital which had reference to the boy’s case. Plaintiff’s counsel offered them in evidence.. Defendants’ counsel objected to them as incompetent, irrelevant and immaterial.” The objection was sustained and exception taken. Thereupon that part of the records which bears the name of Dr. Degenhardt was offered. The same objection was made with the same ruling and the court announced that he would allow the witness to refer to the records for the purpose of refreshing his recollection but excluded the records upon this ground: “You cannot have records when you have the witness present in court. That is the best evidence.” Under section 374-a of the Civil Practice Act, “Any writing or ■ record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, -transaction, occurrence or event, or within a reasonable time thereafter. * * * The term business shall include business, profession, occupation and calling of every kind.” No objection was made to the admission of the records on the ground that no proper foundation had been laid for their admission or on other than the general grounds stated. The blanket exclusion of the records by the court on the ground stated left plaintiff without proof on what may have been essential features of his case and relieved plaintiff from proceeding further with proof of facts essential to warrant their admission. As the case stood, the records should have been admitted in evidence and their exclusion was erroneous (People v. Kohlmeyer, 284 N. Y. 366).

Plaintiff called a physician as an expert. Upon the preliminary examination it appeared that he had been a licensed and practicing physician and surgeon of the State of New York since May 3, 1936; that he received his preliminary education in the Universities of Heidelberg and Munich in Germany; that he graduated in medicine in 1899; that he was engaged for a period of ten years in educational research after his graduation; that he was an assistant in the surgical clinic of the Universities of Heidelberg and Munich and thereafter chief surgeon at the hospital at Coburg, Germany, which had six hundred beds, for more than six years and was then surgeon for ten additional years on the staff of the Bed Cross Hospital at Munich, Germany; that he specialized in general surgery; that he had been, since coming to the United States, and still was connected with the Lenox Hills Hospital in New York; that while practicing in Germany he became familiar through the personal handling of hundreds of cases with the treatment of osteomyelitis and had also become familiar with its treatment throughout the world by reading the literature on the subject. At the end of the preliminary examination of the witness as to his qualifications, upon objection by defendants, he was not permitted to testify as an expert on the sole ground that he was not competent to testify as to the proper practice in America in 1932.

The nature of osteomyelitis and its cause and probable effect were proper subjects for testimony of a competent medical witness; the case on the subject of malpractice was one for the admission of expert testimony (Finn v. Cassidy, supra; Jones v. Angell, 95 Ind. 376, 378) and a showing was made that the witness was skilled in the profession to which the subject relates. It was shown that he had acquired that skill either from study, experience or observation. No precise rule has been formulated and applied as to the exact manner in which such skill and experience must be acquired. Long observation and actual experience, though without actual study of the subject, qualify a witness as an expert in that subject (Slater v. Wilcox, 57 Barb. 604). Likewise, a physician may qualify himself from study of the subject alone (Slocovich v. Orient Mutual Ins. Co., 108 N. Y. 56; People v. Benham, 160 N. Y. 402, 441; People v. Thacker, 108 Mich. 652). The extent of the expert’s qualifications is always a proper subject for the jury on the question of the weight to be given to his testimony (Hoag v. Wright, 174 N. Y. 36, 47). Residence alone neither bars a physician from testifying as an expert nor qualifies him so to do. 1

The prevailing rule is that the question of the qualification of a witness to testify as an expert is for determination, in his reasonable discretion, by the trial court, which discretion, when exercised, is not open to review unless in deciding the question the trial court has made a serious mistake or committed an error of law or has abused his discretion (Slocovich v. Orient Mutual Ins. Co., supra; Hoag v. Wright, supra; White v. McPherson, 183 Mass. 533; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 559). It was error of law to hold that the witness was disqualified to testify at all as an expert. Whether he was qualified to express an opinion as to whether the medical and surgical treatment of plaintiff by the defendant physicians was in accord with commonly accepted medical practice, upon the record now before us, we are not called upon to decide.

Other matters have been discussed which need no attention now in view of the determination reached on the points considered above.

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

Conway, J.

(concurring). I concur in the result. I dissent from that portion of the opinion which holds that the trial court was in error in not permitting Dr. Colmers to testify as an expert. The entire testimony of this witness is brief and I shall quote it:

Direct Examination by Mr. Hertel: Q. Dr. Colmers, you are a regularly licensed and practicing physician and surgeon of the State of New York? A. That is right. Q. And you have been for how long? A. I am living three years in this country. * * * Q. Prior to that time, where did you obtain your preliminary education? A. In the Universities of Heidelberg and Munich in Germany. Q. In what year? A. I was assistant in 1899 until 1909. Ten years for educational research. Q. When did you graduate in medicine? A. 1899. Q. Tell us what institutions you were connected with since that time. A. I was assistant in the surgical clinic of the University. of Heidelberg and of Munich, and then I was chief surgeon to the hospital at Coburg, in Germany, and have been for more than six years chief surgeon at the hospital of six hundred beds. Then I was surgeon for ten years on the staff of the Red Cross Hospital at Munich, Germany, on the hospital staff. Q. Did you specialize in any particular form of medicine or surgery? A. General surgery. Q. Since you have come to the United States, with what hospitals have you been or are you now associated? A. With Lenox Hills Hospital. Q. Any other hospitals? A. No.
“ By the Court: Q. When were you licensed in the State of New York? A. May 3, 1936.
“ By Mr. Hertel: Q. Doctor, while you were practicing in Germany, were you then familiar with the treatment of osteomyelitis, not only in Germany but in other countries of the world? A. Fes, I read about it in other countries, and I have seen quite a lot of cases in Germany, too, because it is a frequent disease in this country. Q. Is there any difference in the treatment of osteomyelitis in Germany or in any other country? * A. No. Mr. Martin: I object to that. The Court: Objection sustained. The witness says he read about treatment in other countries. Mr. Hertel: I respectfully except. Q. Did they coincide with the treatments in Germany? Mr. Martin: I object to what he read as hearsay. The Court: Objection sustained. He has no personal knowledge, according to his own testimony, of- the treatment of this disease anywhere except possibly in Germany. Mr. Hertel: I respectfully except. May we have a talk with your Honor about this before we go any further? The Court: No, I will listen to your questions and I will rule immediately. I do not believe in bench conferences. Q. Doctor, are you familiar with the proper and competent treatment of osteomyelitis? Mr. Martin: I object to the form of that question, based upon his previous answer. The Court: It is too general. Objection sustained. Mr. Hertel: Exception. Q. Doctor, assuming that a boy eight years of age — The Court: Pardon me, Counselor, if I may. Doctor, in Germany during your practice there, how many cases of osteomyelitis did you treat personally? The Witness: I cannot tell you the exact number, but I am sure they were several hundreds. Mr. Hertel: The reason I wanted to speak to your Honor was, if your Honor is going to rule that this man is not competent to testify as to the proper practice in America in 1932, then there is no sense in wasting any time in asking a long hypothetical question. Mr. Martin: I am going to object just on that ground. The Court: If such an objection is made, I will sustain the objection. Mr. Martin: I make such an objection. Mr. Hertel: I respectfully except. The Court: What may be recognized in some school of medicine or surgery somewhere else in the world I cannot allow to be testified to in a court of this State and country. Doctors practicing in the State of New York are not required to recognize any practice that may be in vogue anywhere else. They follow the practice in this State and this country. That is all they are responsible for. Foreign methods may be good or bad. We have got to take the judgment of our own surgeons and physicians right here as to their recognized, approved practice.”

This was clearly not error. The defendant physicians impliedly represented to the plaintiff that they possessed and the law placed upon them the duty of possessing that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality in which they practiced. (Pike v. Honsinger, 155 N. Y. 201 at 209.)

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

Judgments reversed, etc.