#### DAVIS v. ZIMMERMAN et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

1. Injunction—To Restrain Interference with Business—Jurisdiction.

The business of a person, if lawfully conducted, is a property right; and equity may enjoin the carrying on of a conspiracy to destroy or injure it, though the acts enjoined are violations of the criminal laws.

2. Same—Practice.

While it is a general rule that where all the equities of a complaint are met by the answer an injunction will not be granted pendente lite, or, if before granted, will be vacated, this rule does not apply to an injunction restraining defendants from doing acts which they assert no right to do.

Appeal from special term, New York county.

Action by Mark Davis against Julius Zimmerman and others. From an order continuing an injunction pendente lite, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Moses H. Grossman, for appellants.

Leonard Bronner, for respondent.

FOLLETT, J.

This action was begun June 21, 1895, to restrain the defendants (1) from inducing the plaintiff’s employés to leave his service by force, threats, or intimidation; (2) from preventing persons from entering plaintiff’s service by force, threats, or intimidation; (3) from destroying plaintiff’s property. This is the gist of the relief sought by the action and granted by the temporary injunction, issued June 21, 1895, and continued by an order of the special term, entered August 2G, 1895.

The plaintiff now is, and for 15 years last past has been, a manufacturer of hats and caps at the city of New York, employing a large amount of capital and about 75 employés, known as “hat and cap operators,” who are members of the “Cloth Hat and Cap Operators’ Union,” a society the members of which reside in or near the city of New York. It is alleged in the complaint that, on the 8th *304of June, 1895, the plaintiff’s employés and other members of said union demanded that the plaintiff should enter into certain contracts with his employés relating to the conduct of his business, and that in default thereof said employés threatened to quit work, and cause the suspension of business in the plaintiff’s factory, until such time as the demands of the union should be acceded to. The plaintiff refused to execute the contracts, and thereupon a strike was ordered, and plaintiff’s employés left his service. It is also-alleged that the defendants entered into a conspiracy to destroy plaintiff’s business, and to prevent him from carrying it on, and to carry out the conspiracy the defendants stationed a large number of persons, called “pickets” and “patrollers,” in front of and near the plaintiff’s factory, who, by threats and personal violence, intimidated other persons from entering plaintiff’s service. It is further alleged that many of the defendants, in furtherance of their conspiracy, have violently assaulted and injured the new employés of the plaintiff. It is alleged that the plaintiff, by the defendants’ acts, has been compelled to establish factories in other towns; that he had one at Rutherford, N. J.; and that, on June 18, 1895, several of the defendants, at the instigation and upon the order of said union, destroyed the plaintiff’s machinery and property at that place, of the value of $500, and by force, threats, and violence induced the hands-there employed to leave their work. The complaint contains other allegations of like nature, not necessary to be described particularly. It is alleged that the damages to his business occasioned by these acts are great and irreparable, that they cannot be ascertained and recovered in an action at law, and that the defendants are unable-to respond in damages. The defendants, in their answer, deny the-existence of the conspiracy and the acts of violence alleged, but they admit that they have stationed pickets and patrollers near the plaintiff’s factories, have tried to prevent, by persuasion and argument,, persons from entering the plaintiff’s service, and also that some of plaintiff’s property has been destroyed, but aver that they believe the plaintiff procured the destruction of his own property for the purpose of charging the act on the defendants. The defendants also allege that the plaintiff and other persons engaged in the-same business have entered into a conspiracy unjustly to reduce-the wages of employés and to refuse to employ members of the union, and they ask for a judgment restraining the execution of such alleged conspiracy.

Protection to property is guarantied by the constitution of the-United States and the state of New York, and it is the duty of' the courts to enforce these guaranties. The business of a person,. conducted according to law, is a property right. People v. Barondess, 61 Hun, 571, 16 N. Y. Supp. 436. In that case, Mr. Justice-Daniels held that a loss resulting from a suspension or interruption of a lawful business was an injury to property, and his opinion was adopted by the court of appeals. Id.,133 N. Y. 649, 31 N. E. 240; State v. Stewart, 59 Vt. 273, 9 Atl. 559; Barr v. Trades Council (N. J. Ch.) 30 Atl. 881. A court of equity has jurisdiction to restrain by injunction the carrying on of a conspiracy to destroy *305or injure property, and the court is not deprived of its power because the acts are criminal. Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514; In re Debs, 158 U. S. 564-593,15 Sup. Ct. 900, 1039.

Many of the acts which, it is alleged, the defendants committed and threatened to commit, are not only violations of the rights of property guarantied by the constitution and the laws of the state, but are violations of the criminal laws of the state. A conspiracy to injure a person’s business by preventing persons from entering his employment, by threats and intimidation, is a crime at common law. People v. Melvin, Yates’ Sel. Cas. 112, 2 Wheeler, Cr. Cas. 262. See, also, Wright, Or. Cons. (1st Am. Ed.) c. 3, and cases there cited. Such a conspiracy is now a crime by statute. Pen. Code, § 168. Some of the plaintiff’s property was destroyed, his employés were attapked, and the persons who sought his employment were threatened and menaced. For these acts the perpetrators are liable in damages; but they being, as it is alleged, irresponsible, a judgment for damages would be unavailing, would not suppress the wrongs, and would necessitate a multitude of actions. Besides this, the damages which arise from the destruction of a. business, with a loss of contracts, cannot be ascertained even approximately. In such cases an injunction restraining the commission of such acts is an appropriate remedy. It is urged that there is no precedent in this state which sustains an injunction in such a case. To this it may be answered that there is no case denying the power of this court to grant such relief, and there are many cases in other jurisdictions where the exercise of this power has been sustained. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 1039; Casey v. Typographical Union, 45 Fed. 135; Cœur D’Alene Consolidated Min. Co. v. Miners’ Union of Wardner, 51 Fed. 260; Blindell v. Hagan, 54 Fed. 40; Id., affirmed, 6 C. C. A. 86, 56 Fed. 696, 13 U. S. App. 354; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 746; U. S. v. Workingmen’s Amalgamated Council of New Orleans, Id. 994; Farmers’ Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. 803; Railway Co. v. Bailey, 61 Fed. 494; U. S. v. Agler, 62 Fed. 824; Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209; U. S. v. Elliott, 64 Fed. 27; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Murdock v. Walker, 152 Pa. St. 595, 25 Atl. 492; China Co. v. Brown, 164 Pa. St. 449, 30 Atl. 261; Barr v. Trades Council (N. J. Ch.) 30 Atl. 881; McCandless v. O’Brien, 2 Pittsb. Leg. J. (N. S.) 435; Railroad Co. v. Wenger, 17 Wkly. Law Bull. 306, 24 Abb. N. C. 267.

In Harvester Co. v. Meinhardt, 60 How. Prac. 168, 9 Abb. N. C. 393, affirmed 24 Hun, 489, an injunction was refused, on the ground that “there is no fact shown which would, in any legal sense, amount to an intimidation of the persons who are actually in, or were about to enter, the employ of the plaintiff, and"no facts showing acts of the defendants which would, in any legal sense, amount to a coercion of any such persons.” Reynolds v. Everett, 144 N. Y. 189, 39 N. E. 72, affirming Id.,67 Hun, 294, 22 N. Y. Supp. 306, which affirmed Id., sub. nom. Rogers v. Evarts (Sup.) 17 N. Y. *306Supp. 264, was brought to restrain striking cigar makers, in which an injunction pendente lite was granted and continued until the action was tried. On the trial the complaint was dismissed, without costs, on the ground that the strike had ceased, and there was no occasion for a permanent injunction restraining defendants, and also on the ground that the defendants had committed no acts of violence against persons or property, but had simply persuaded laborers not to remain in the plaintiff’s employ, and had persuaded others not to enter their employ. In Sinsheimer v. Garment Workers, 77 Hun, 215, 28 N. Y. Supp. 321, reversing Id.,5 Misc. Rep. 448, 26 N. Y. Supp. 152, the temporary injunction was vacated on the ground that “there is no proof of any acts of violence upon the part of the defendants, or of any injury to property, or of any threats or intimidation.” The defendants in that case had simply mailed circulars to the plaintiffs’ customers requesting them not to deal with the plaintiffs until the difference between them and the defendants should be settled.

The supreme court of this state has original and general jurisdiction of all cases in law and equity (Const, art. 6), with unlimited power to protect the rights of persons and property by adopting, and enforcing all of the remedies afforded by an enlightened jurisprudence which are not inconsistent with the constitution of the state; and it is its privilege and duty to mold and expand its processes so as to afford adequate protection to the rights of all citizens. It is far better for employers and employés, and for the peace and safety of the state, that such relief be exercised by the courts, where parties can be heard, than to permit such violations of law to go unrestrained until force is arrayed against force, and the strong arm of the executive is compelled to intervene with troops to prevent disorder and the destruction of property. The defendants invoke the general rule that, when all of the equities of a complaint are denied in the answer, an injunction will not be granted pendente lite, or, if granted, will be vacated. This rule applies when the litigants claim adversely in respect to property, or the right to do some act in connection therewith; and, the plaintiff’s asserted right being doubtful, an injunction will not be granted. But this rule is not applicable to the case at bar, for the defendants do not assert the right to do any of the acts which they are restrained from doing. They do not assert that they have a right to intimidate, by threats or by violence, persons in the employment of the plaintiff, or those who seek his employment, nor do they claim that they have a right to destroy the plaintiff’s property; and it is only from doing and conspiring to do such acts that they are restrained.

The order should be affirmed, with costs.

VAN BEUNT, P. J., concurs in result. O’BEIEN, J., concurs.