82 N.Y.S. 288 | N.Y. App. Div. | 1903
Lead Opinion
The complaint alleges that the plaintiff is a membership corporation organized under the laws of the State of New York; that its membership is made up exclusively of master horseshoers, conducting the business of horseshoeing in the boroughs of Manhattan and The Bronx, in the city of New York; that its- objects, among other things, are to elevate the character and skill of the craft, to protect and foster mutual interests of horseshoers in such localities, and to act in conjunction with members of the Journeymen Horseshoers- and have the articles manufactured by it used by its membership,
The complaint further sets out that each and all of the acts of violence and intimidations stated have been and are committed and done in furtherance of the wrong and unlawful purpose of the defendant association, acting through its members, to injure plaintiff and force it to accede to the demands of the defendant association ; that the defendant threatens and intends to continue its acts a.f said violence and intimidation unless restrained.
I ' The judgment demanded, among other things, is that the defendant be enjoined from resorting to any species of personal violence ■ upon any member of the plaintiff or workmen employed by any j member of it, or resorting to any species of threats, intimidations, force or fraud against any of its members or interfering by violence with any of the property of the plaintiff or its members in yiolation of law.
Upon the complaint and affidavits of persons who have been assaulted by the members of the defendant, setting forth the time when and the place where and by whom such assaults were committed, the plaintiff applied for and obtained an injunction pending the return of an order to show cause, enjoining and restraining the defendant from in any manner interfering with the objects and business of the plaintiff and its members by resorting to any species-of threats, intimidations, force or fraud upon plaintiff’s members or upon any employees or customer of any member of the plaintiff.
Upon the return of the order to show cause, affidavits were presented of the different persons alleged to have committed the • assaults, which, in substance, denied that -the assaults were com-j mitted as alleged in the affidavits upon which the injunction was • granted. An affidavit was also presented by- the defendant Quinlivan, which admitted that the defendant had ordered a strike against the plaintiff and in which he alleged that it nowhere appeared from the affidavits submitted by the plaintiff by which it could be shown that the defendant association had in any way ordered or directed any of the acts to be done, of which the plaintiff com
For these reasons I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction during the pendency of the action granted, with ten dollars costs.
O’Brien and Laughlin, XL, concurred; Van Brunt, P. J., and Ingraham, J., dissented.
Dissenting Opinion
Assuming that the individual members of the plaintiff corporation would be justified in applying to the court to restrain the violence and intimidation resorted to by the members of the defendant association — a proposition to which I do not dissent — I am unable to see how the plaintiff is justified in asking the court to interfere in its behalf. The plaintiff, a membership corporation, has a personality entirely distinct from that of its individual members. It is a corporation capable of suing and being sued, of holding property and protecting its property rights and interests. If this a defendant; or the members of the association of which the defend- * ant is president, had interfered with the property of the plaintiff, or were guilty of any unlawful act against the corporation which caused it damage, a different question would be presented, but I fail to find any facts alleged which would justify this conclusion. The plaintiff alleges that it is the owner of a trade mark which is a valuable property right, but there is no allegation that the defendant or the association that he represents has done any act that tended to injure the plaintiff’s trade mark.' The fact that the \
For this reason I think the court below correctly refused to grant an injunction, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to continue injunction during pendency of action granted, with ten dollars costs.