Manhattan Steam Bakery, Inc. v. Schindler

250 A.D. 467, 294 N.Y.S. 783, 1937 N.Y. App. Div. LEXIS 8373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1937
• Status: Published

Opinions

Per Curiam.

It is conceded that the subjects of the industrial dispute between the employer and employees, as well as the demands of the latter on the former, were legitimate. Therefore, peaceful picketing of the premises of the employer with banners bearing truthful legends is permissible, under well-established principles of law, when it is done without malice, force, violence or intimidation. It is a well-recognized form of economic persuasion. Under similar circumstances, though it be sometimes called a secondary boycott, peaceful picketing in front of the premises of a customer of an employer, with a sign stating that the customer is handling an article made by the employer fairly under the ban of the employees’ union, is likewise lawful. There is a definite industrial relation between the sale of plaintiff’s product and the aims and objects of defendant’s union. “ ‘ Picketing ’ connotes no evil.” (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260.) Contrary to the finding of the trial court, there was not indicated, under the facts stipulated, any malice, force, violence or intimidation, express or implied. One or more of these elements were present in Auburn Draying Co. v. Wardell (227 N. Y. 1) and Stuhmer & Co. v. Korman (241 App. Div. 702; affd., 265 N. Y. 481). Here the customer was requested not to deal in the article made by the employer, and to handle union-made goods only. Since such picketing of the customer is permissible, a warning that it would be continued if the customer did not refrain from dealing in the banned article is not wrongful. What one may lawfully do, one may warn that it will be done. The procedure adopted by the employees was “ a legitimate means of economic coercion.” (Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405, 410.)

The judgment should be reversed on the law, with costs, and the complaint dismissed, with costs. The appeal from the order denying the motion to dismiss the complaint for insufficiency should be dismissed, without costs.

Lazansky, P. J., Johnston and Close, JJ., concur; Hagarty and Davis, JJ., concur in the dismissal of the appeal from the order denying motion to dismiss the complaint, but dissent and vote to affirm the judgment, with costs, with memorandum.