158 Misc. 785 | N.Y. Sup. Ct. | 1935
This action is for an injunction seeking to restrain the defendants as representatives of a labor union from picketing plaintiff’s restaurant, from doing any act which will tend to embarrass the conduct of the business and prevent or interfere with persons, potentially customers, from patronizing the establishment. Plaintiff is the proprietor of a restaurant situated at 17 West Thirty-second street and apparently has expended a large sum of money to make its place attractive in a locality where competition demands constant vigilance as the price of success. Defendants are a trade union affiliated with the American Federation of Labor and whose membership is exclusively composed of waiters and waitresses engaged in the restaurant trade. In furtherance of its policy to regulate the relationship of those engaged in the restaurant business and in anticipation of any weakening of its control, the union sought to unionize the plaintiff’s employees. Recognizing the danger to their interests of non-union establishments, the defendants sought an agreement from plaintiff permitting the union to organize plaintiff’s employees. Though willing to some extent, the plaintiff unalterably refused to give the union the right to exercise the power of dictating who were to be employed by the plaintiff, commonly called the right to “ hire and fire.” Obviously, this is conceived to be the backbone of union control. Without this authority the control of the union is bloodless. In consequence, the plaintiff and the union never could agree, and plaintiff’s willingness to accept unionization of its employees without relinquishing its right to choose its own employees without qualification proved to be a proposal lacking fascination. Plaintiff proving adamant in its refusal to give the defendant union the right to hire and fire, the defendants resorted to the weapon which generally has been found effective. As soon as concordance was shown to be impossible pickets appeared in front of plaintiff’s restaurant. Although the
Although a hearing in open court has been had and witnesses have appeared and been examined and cross-examined, there is good cause to believe that the conditions imposed by the statute have
In Levering & Garrigues Co. v. Morrin ([C.C.A.] 71 F. [2d] 284) the Norris-LaGuardia Federal Labor Injunction Act (U. S. Code, tit. 29, §§ 101-115), upon which the State statute is patterned, was held applicable to actions commenced prior to the passage of that act where no final decree had been entered. That authority also holds the Federal law constitutional. The court is not oblivious to the fact that there are certain elements in the basis of Federal equity jurisdiction which prevent a complete analogy between the authority cited and the issue here under consideration so as to make the Federal decision conclusive. The important distinction between Federal equity jurisdiction and that of this court is that the former is statutory, while the latter is constitutional. Naturally, whatever Congress has granted to the court of its own creation, it may control. It, therefore, follows that no constitutional right is infringed by a congressional curtailment of a remedy or a withdrawal of remedial rights from the jurisdiction of the District Court, since the litigant never had any absolute constitutional right to have a Federal court take jurisdiction. Vastly different is the position of the State court. Constitutionally, equity jurisdiction is an inherent element of the State court. If a litigant is entitled to an equitable remedy and has no adequate legal remedy, a destruction of such right of redress would be a denial of justice, and thus a violation of both State and Federal Constitutions. In fact, in Duplex Printing Press Co. v. Deering (254 U. S. 443; 41 S. Ct. 172; 65 L. Ed. 349; 16 A. L. R. 196) the Supreme Court of the United States so held. It there seemed to the court that the State statute practically granted “ complete immunity of any civil or criminal action to the defendant, for it pronounced their acts lawful.” In this matter, however, there is no deprivation of the right to an injunction. If such was the effect of chapter 477 of the Laws of 1935, it unquestionably would be unconstitutional. Here there is only an effort to limit the circumstances under which an injunction can be obtained.
While the requirements to obtain an injunction as prescribed by the statute herein involved may invite hardship, that is not germane to the question before the court. No interference with legislative policy can be tolerated. As the law stands, it is still possible to obtain an injunction after a hearing where violence,
Submit findings of fact and conclusions of law on July 8, 1935.
No costs.