2 N.Y.S. 195 | N.Y. Sup. Ct. | 1888
Lead Opinion
Justice Daniels has elaborately expressed his views of the questions involved on this appeal as they present themselves to his mind. If the by-laws under which the defendants meant to proceed against the plaintiff were valid, there would be no difference of opinion as to the result. They are not, so far as they sustain the contemplated action of the defendants in interfering with the orchestral combination of the plaintiff. By the charter, the objects of the defendants were declared to be the cultivation of the art of music in all its branches, and the promotion of good feeling and friendly intercourse among the members of the profession, and the relief of such of their members as should be unfortunate, so far as their means in their opinion would permit. The by-law [article 3, § 1] which requires every member to refuse to perform in any orchestra or band in which any person or persons are engaged who are not members of the union in good standing, excepting organists and directors of musical societies and members of traveling companies, and with such no longer than a period of four weeks, is not at all designed for the promotion of good feeling among the members of its profession and the relief of the unfortunates. Nor is the following designed to accomplish any such beneficient result, (article 8, § 2:) “It shall also be deemed a breach of faith and fair dealing between members of this union for a member of the same to employ or engage a suspended or non-member; also to assist in any public performance given wholly or in part by amateurs.” The effect is to create a close corporation, and to force each member of the profession to become a member also of the union, unless he prefers to abandon his calling, or seek some locality where he can employ his talents and exhibit his capacity to procure means for his support and that of his family, if he have any. The by-law, which requires a residence of six months in the United States before eligibility for election as a member, in view of the restrictions contained in the other by-laws virtually prohibiting him from exercising his calling, is also arbitrary, and not calculated to promote that general good feeling and good fellowship which it was the object of the union to attain. It is arbitrary, for the reason that during the period mentioned the musician is proscribed unless he seeks some other place where his professional brethren do not present, as a formidable barrier to his employment, his recent advent to this country. This strikes at talent, capacity, distinction, usefulness, and the enjoyment of a meritorious performance by the public, which is the chief design of music which has charms, we are told, even to soothe the savage breast. There is no response to be successfully made to the charge that such elements are not only against public policy, but antagonistical to the right of every man to earn by honest labor, lawful in itself, whatever it will command, whether the laborer or artisan or artist be foreign or native born. It would doubtless be a clever mode of securing per force the advantages of a successful union if the exclusion from labor of all musicians not members of the union could be accomplished, but this may not be done. Unions of a benevolent or protective character should be the result of good feeling and a just appreciation of the rights of others, and not arbitrary or oppressive. The inciting motive to join them should be fraternal, and not an apprehension of disaster. It has been justly said that “associations have no more right to inflict injury upon others than individuals have. All combinations and associations designed to coerce workmen to become members, or to interfere with or obstruct, vex, or annoy them in working or in obtaining work because they are not members, or in order to induce them to become members, or designed to interfere with the perfect freedom of employers in the management and control of their lawful busi
The propriety of granting relief in a case like this cannot well be ques-. tioned. The engagement of the oboeist was for a period, and each performance was a violation of the by-law. Section 1 of article 3, as we have seen, made it the duty of every member of the defendant’s society, including the plaintiff, to refuse to perform with him, as he was not a member of the union, and its violation repeated might subject him to expulsion. The initiation of a proceeding in any form which could lead to such a result, founded upon bylaws illegal and invalid, should be arrested, and especially when the consequence might be the disbandment of an orchestra gotten together by tact, skill, and industry, and which, if dispersed, might not be combined by any effort. It is enough that threats of such a disaster, with apparent power to accomplish it, are presented for consideration, to warrant an injunction. The element of irreparable damage springs naturally from them, and invokes the equitable intervention of this court. The danger apprehended of the dispersion suggested is sufficiently imposing, and the injured person should not be required to wait until the mischief is nearly complete before the machinery of a court of justice should be set in motion. If the act contemplated be in violation of law, and from its nature one in which the public interest is concerned, or be one by which it is apparent an irreparable mischief is about to be done, the relief should not be made subservient to the doubtful proposition in such a case that damages may be obtained by an action at law, and the injunction consequently should not issue. It is thought, therefore, and with great deference to the learned opinion of Justice Daniels, that the decree appealed from should be affirmed, with costs.
Van Brunt, P. J., concurs.
Dissenting Opinion
(dissenting.) The judgment recovered in the action restrained the defendant from enforcing its by-laws against the plaintiff to recover penalties or fines of ten and twenty dollars for employing a person in his orchestra who was not a member of the Protective Union. The defendant was incorporated by chapter 168 of the Laws of 1864, afterwards amended and enlarged by chapter 321 of the Laws of 1878. By the act of incorporation the persons named in it, and those associated with them, and all other persons who should afterwards be so associated, and their successors, were constituted, created, and declared to be a corporation and body politic, for the cultivation of the art of music in all its branches, and the promotion of good feeling and friendly intercourse among the members of the profession, and the relief of such of their members as should be unfortunate, so far as their means in their opinion would permit. The plaintiff became a member of the union in or prior to theyear 1876. He was absent from the city of New York, residing in Cincinnati, from 1878 to 1883, but during his absence his dues were paid and his membership continued. While he was absent, and in the year 1882, the by-laws of the corporation now in controversy were adopted. And in August, 1885, the plaintiff proposed to Felix Bour to employ him as
The more important point, however, in the case is that which presents the legality of the by-laws themselves. The one which has been most directly brought in question is section 1 of article 3, defining and declaring the duties of the members of the union. By this section it has been made the duty of every member to refuse to perform in any orchestra or band in which any person or persons are engaged who are not members of this union in good standing, except organists and directors of musical societies and members of traveling companies, and with such for a no longer period than four weeks. The adoption of this section by the union has been objected to as beyond the authority conferred upon it by its act of incorporation, and that view was
The case of People v. Fisher, 14 Wend. 9, has been pressed upon the attention of the court as an authority sustaining the contention of the plaintiff, that this by-law is inconsistent with a law of the state. That was an indict
The cases of Dunham, v. Village of Rochester, 5 Cow. 462; Hooker v. Van Dewater, 4 Denio, 349, and Stanton v. Allen, 5 Denio, 435, have been brought to the attention of the court as authorities requiring a different application to be given to the law, but they evidently are entitled to no such effect. The first of these authorities depended upon the construction of a statute entirely dissimilar to that which is here required to be considered, while the others were held to violate that provision of the Revised Statutes forbidding two or more persons .to conspire to commit any act injurious to trade or commerce. The combinations there proven to have taken place were within that subdivision which is inapplicable to this case, and the authorities depending upon it are consequently deprived of their control over this controversy. The case of Spinning Co. v. Riley, L. R. 6 Eq. 551, also differs in its controlling features from the by-law of this defendant; for there it was proposed by placards and other means, and intimidation and threats, to prevent workmen from entering into the service of the plaintiff. These were the controlling attributes upon which the injunction was sustained, and their absence is clear and