#### Joseph Michaels and Others, Plaintiffs, *v.*Sidney Hillman, Individually and as President of the Amalgamated Clothing Workers of America, et al., Defendants.

(Supreme Court, Monroe Special Term,

March, 1920.)

Injunctions — when will not be vacated — labor unions — strikes — contracts.

A temporary injunction which, in connection with a strike, restrains a labor union, its servants, agents, deputies, etc., from interfering with or injuring *“*in any way *”*the business, property or contracts of an employer, and “ from preventing or attempting to prevent ” contractors or other persons from doing or finishing work under contracts or business arrangements with such employer, will be modified by striking out *“*in any way *”*and substituting *“*by any of the acts or things herein *285restrained,” and by inserting after “ from preventing or attempting to prevent” the words “by any of the acts or things herein restrained.” Otherwise the injunction will be continued until further direction.

When the acts enjoined are illegal and tend to create a breach of the peace, the injunction will not be vacated although the alleged facts upon which' it was granted are substantially denied by the opposing affidavits.

Motion to vacate or modify injunction *pendente lite.*

The plaintiffs are clothing manufacturers at Boehester, N. Y., and the defendants are an organization of clothing workers and officers and members thereof. The plaintiffs beside manufacturing clothing in their own factories let out work to contractors and others working in their own shops or homes. A strike was declared against the plaintiffs by the Amalgamated Clothing Workers of America and the employees of plaintiffs organized themselves into a local under the United Garment Workers of America, which is associated with the American Federation of Labor. The acts and conduct sought to be restrained grew out of the relation of the parties and others in connection with the prosecution of the strike. A temporary injunction against certain acts and conduct of the defendants was issued in connection with the action, and the present motion is one to vacate or modify this injunction order.

The following are the provisions of the temporary injunction:

*“ Ordered,*that the defendants and each and every one of them, and each and all the members of the Amalgamated Clothing Workers of America and their agents, deputies, organizers, representatives, and coadjutors, and all other persons, be and they are and each of them is hereby enjoined, restrained, and forbidden during the pendency of this action and until the further order of this court, and under the penalties *286of law for such a case made and provided, from assaulting, menacing, molesting, threatening, intimidating, or annoying by offensive acts or language, the employees of the plaintiffs, or any of them, and from interfering by threats or intimidation or other similar means with the employees of the plaintiffs or any persons who may become employees of the plaintiffs or who may seek employment from them, and are restrained and forbidden from doing any other act or thing for the purpose of preventing any person or persons who are or who may hereafter be in plaintiffs’ employment from continuing therein or for the purpose of preventing or interfering with others entering said employ.

“And the defendants and the members of said Amalgamated Clothing Workers of America, and their servants, agents and representatives, and all other persons are hereby enjoined, restrained and forbidden, under the penalties of the law aforesaid, from parading or marching, in masses, companies, bands or collective numbers, back and forth in front of and adjacent to the factories of the plaintiffs, or any of them, and from loitering or collecting, in bands or companies, at the entrances to said factories, or the streets adjacent thereto, or at the car stop points in the streets in proximity to the said factories where the employees of said factories embark upon the street cars, or disembark therefrom on their way from or to said factories, or any of them, and from interfering in any way with the free passage of the employees of the plaintiffs or in any manner obstructing the said employees upon the streets or any public places, or annoying them or threatening them, in their places of employment, or in their homes, or in any way or place.

“ Said defendants and members of said Amalgamated Clothing Workers of America, their representatives, agents, attorneys and servants, are enjoined,. *287restrained and forbidden from calling said employees of the plaintiffs, or any of them, scabs or other opprobrious names, and from printing, publishing or otherwise disseminating statements to the effect that the plaintiffs or their employees are opposed to organized labor, or are opposed by any labor organization other than said Amalgamated Clothing Workers of America.

“And all of said defendants and the members of said Amalgamated Clothing Workers of America, and their servants, agents, deputies, representatives and coadjutors are, and each of them is hereby enjoined, restrained, and forbidden from interfering with or injuring, in any way, the business, property, or contracts of the plaintiffs, and from preventing or attempting to prevent contractors or other persons from doing or finishing work under contracts or business arrangements existing between them and the plaintiffs, and from making any threats of violence or injury or harm of any kind, or doing any other act or thing to azmoy, threaten, or intimidate any person, firm, corporation or association doing business with the plaintiffs.

“And the said defendants and all the members of said Amalgamated Clothing Workers of America, their agents, representatives, and. coadjutors are and each of them is enjoined, restrained, and forbidden from endeavoring to persuade the employees of the plaintiffs to violate or cause the abrogation or violation of the working contract between the plaintiffs and the United Garment Workers of America, and from doing any act or thing intended or designed to prevent the persons employed by the plaintiffs from carrying on their lawful trades and occupations as such employees, or to prevent persons, firms or corporations having contractual relations with the plaintiffs from carrying out their obligations thereunder.

*288“And the defendants and all the members of said Amalgamated Clothing Workers of America are forbidden and enjoined from conspiring together to do any of the acts and things hereby forbidden, and the said Amalgamated Clothing Workers of America, their officers and agents are hereby enjoined and forbidden from compelling by the use of the authority or disciplinary powers and processes of said organization called the Amalgamated Clothing Workers of America or of its officers, local unions or subordinate organizations, any of the members of said Amalgamated Clothing Workers of America to do or attempt any of the acts or things hereby forbidden.”

O’Brien & Powell (George A. Benton, of counsel), for motion.

Sutherland & Dwyer, opposed.

Rodenbeck, J.

The only clause in the injunction order which is open to misconstruction and which should be clarified by a modification is the 4th paragraph, wherein the order restrains the Amalgamated Clothing Workers of America and its servants, agents, deputies, representatives and coadjutors from interfering with or injuring “ in any way ” the business, property or contracts of the plaintiffs. The language quoted should be amended by striking out “ in any way ’ ’ and substituting in their place the words ‘ ‘ by any of the acts or things herein restrained ” and by inserting after the words *“*from preventing or attempting to prevent ” in the same paragraph the words “ by any of the acts or things herein restrained.” The paragraph as it now stands forbids lawful acts of the association and its representatives which may interfere with or injure the plaintiffs which *289would include the legal right of the former employees of the plaintiffs to strike for the purpose of improving their condition and of their organization to exercise its legal functions to make the strike a success. The vice of the language used in this paragraph is similar to that which occurred in the order in the case of *National Protective Association*v. *Cumming,*170 N. Y. 315, 349, and *Wyckoff Amusement Co., Inc.*v. *Kaplan,*183 App. Div. 205.

The remainder of the order contains no unreasonable or illegal restraints upon the defendants under the circumstances revealed by the affidavits. It cannot be contended that they should not be restrained from *‘ ‘*assaulting, menacing, molesting, threatening, intimidating or annoying by offensive acts or language ” the actual or prospective employees of the plaintiffs as provided in the 1st paragraph or elsewhere in the order. Threats, intimidation, coercion and violence in these cases have always been restrained. The defendants may properly be restrained from doing any act or thing for the *“*purpose ” of preventing any person from continuing in the employ of the plaintiffs or from entering their employ as contained in the 1st paragraph. The members of the Amalgamated Clothing Workers may resort to legal means for the purpose of improving their condition, but they cannot combine or act for the purpose of injuring some one else. One of the things aimed at in this part of the paragraph is the design or purpose to injure the plaintiffs which may be restrained. *Curran*v. *Galen,*152 N. Y. 33; *Mills*v. *United States Printing Co.,*99 App. Div. 605; *Hitchman Coal & Coke Co.*v. *Mitchell,*245 U. S. 229; *Auburn Draying Co.*v. *Wardell,*227 N. Y. 1; *Davis Machine Co.*v. *Robinson,*41 Misc. Rep. 329; Penal Law, § 580, subd. 5. The defendants may properly be restrained under *290the facts presented by the affidavits from *“*loitering or collecting in bands or companies ” at the entrance of plaintiffs’ factories or on the streets adjacent thereto or at car stops where the employees of ■ the plaintiffs seek transportation and also from interfering in any way with the *“*free passage ” of the employees of the plaintiffs as contained in the 2d paragraph. This paragraph does not seek to restrain the defendants except as specified, and any acts which do not come within the language of the paragraph are not forbidden. *Mills*v. *United States Printing Co., supra.*The acts sought to be prohibited by this paragraph as described in the affidavits might have been restrained as a breach of the public peace. Penal Law, §§ 32, 2092. The assemblage of the defendants and their sympathizers as described in the affidavits constitutes implied threats, intimidation or coercion sufficient to justify a restraining order. This order is directed not against lawful acts but against a loitering, collecting, parading and marching in such bands, companies or collective numbers described in the complaint and affidavits as constitute coercive measures and which were evidently so designed. The defendants may properly be restrained from calling plaintiffs’ employees “ scabs or other opprobrious names ” and from publishing any statement that the plaintiffs or their employees are opposed to organized labor or are opposed by any labor organization other than the Amalgamated Clothing Workers of America as provided in paragraph 3. The use of abusive, offensive or indecent language toward those who seek to supply the places of the strikers is an improper method of prosecuting a strike, tends to a breach of the peace and will be restrained. The defendants should also be restrained from publishing any false statements in relation to plaintiffs’ attitude toward organized labor *291or any other statements that are nntrne. The defendants may be restrained from endeavoring to “ persuade ” plaintiffs’ employees to violate or to cause the abrogation or violation of the working contract between the plaintiffs and the United Garment Work* ers of America *(Hitchman Coal & Coke Co.*v. *Mitchell, supra; Third Ave. R. Co.*v. *Shea,*109 Misc. Rep. 18) and from doing any act or thing “ intended or designed ” to prevent plaintiffs’ employees from carrying on their lawful trades and occupations or the obligations of any persons under contracts made with the plaintiffs as provided in paragraph 5. While the Amalgamated Clothing Workers of America and its representatives may pursue any lawful means to improve the condition of its members *(Bossert*v. *Dhuy,*221 N. Y. 342; *National Protective Assn.*v. *Cumming, supra),*this right does not extend to active efforts designed to induce plaintiffs’ employees to a breach of the contract referred to or to any act or thing *“*intended or designed ” to interfere with the rights of others. *Hitchman Coal & Coke Co.*v. *Mitchell, supra.*A strike may be lawful or unlawful according to the design or purpose which actuated it, and likewise picketing and boycotting may be legal or illegal according to the methods pursued. *Hitchman Coal & Coke Co.*v. *Mitchell, supra; Mills*v. *United States Printing Co., supra.*Finally the Amalgamated Clothing Workers of America and its representatives may be enjoined from “ conspiring ” to do any of the acts forbidden by the injunction order and from using its authority or disciplinary powers to compel the performance of the acts or things forbidden as provided in the last paragraph. *Bossert*v. *Dhuy, supra;*Penal Law, § 580, subd. 5.

A temporary injunction will not be vacated upon affidavits where the acts enjoined are illegal and tend *292to a breach of the public peace, although the alleged facts upon which the injunction is based are substantially denied by the opposing affidavits. The order does not by implication prohibit any acts which the law recognizes may be done by the defendants in seeking a successful issue of their differences with the plaintiffs, and, on the other hand, there is no implication that acts and conduct outside the limits of the order are necessarily lawful. Their legality or illegality depends upon the purpose or design with which they are prosecuted and the methods employed in carrying them into effect.

Paragraph_4_of the temporary injunction should be modified as above provided and otherwise the order should be continued until the further direction of the court.

Ordered accordingly.