The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-06-25
4 LAReR CONTRACT case.
cssst " AppeRla IIs,as Jtai EaHp,etev way
aemiVp eNplayee Nef ~ JsiH HlsHl

The C1iiH ~ Appeala W thte Stete' w 'hs
osae n Pe1ple N Tho state " NsW tofh'
arpellan, ~ Harry Marcus, respondent
dsrided = few days aao, haa iias haHdei
dpwH IN important Nillha On me cUne'tu'
tiunal fiahi " ffeeslom N enntfaot The
rase involved tho validity N aec'i1n TIA
~ Ne Penal Code, Nhich mahes n & nnlSie'
fneanpf frf IN employer ~ fe1uife IN
smpiuvar ~ n cundltidn ~ e~mploymeh'
NJ ~ te'pniion Nv servlre, N aRfee thE'' hs
will MT hin W. continue ~ \ H'aml~t ~ .
laispf unlnn.
Marcus wa convicted In aperial Aepslona
last January ~ violating ikla eec'ion ~
tho Penal code, The Appellate Division,
First Depart meht then reversed the ftda.
mont ~ conviction, and nov tho Cotrt ~
Appeals. iidar Eiward r haftlett only
dissenting. sIs,alns the reversal and holda
the statute unconstitutional ~ he No an
attcmp, "a deprive the citiyen ~ HE freedom
10 contract
The contract which vas souEht 10 be
declared void as aga M, public policy ~aH
executed In December, 1914. between tbs
w. Marcus Skirt Company, n corporation,
and " S~cheinhaum, and a substantially n
follows,
Party NJ the nrs, par, agrees N employ party NJ
the second par, A. a pircr worker. and party ~ the
nrst par, agrees N pay fot all nntshed worn only
on each and every Tuesday, Party Of the second
part hereby agrees not tn belong 10 any labor union
or 10 take par, In any strike against party of the
hNt part, and TO work as an individual In the open
shor Of party ~ the hrst part.
Party Of the second part further agrees. IN
the even, NJ not complying with all the articles
herein mentioned TO forfeit 10 the party OF the
nrSt part his money due for all work unpaid.
Party nj the aecond mart AlsO Agrees 10 deposit
81 each week, which will be deducted from his sal
AIRY until the amount reaches $40: same 10 be held A.
a forfeit In the even, OF his not complying with all
the above stlpulatiuns.
n, Marcus SKIRT Conpany agrees 70 keen party
OF the second part employed as long as he prove"
satisfactory.
Marcus was arrested on an information al
leging that he had coerced and compelled
the workman to enter into the agreement.
The Court Of Appeals, however, speaking
through Judge Chase, says:
There Is nothing In the information upon which
the warrant against the defendant was issued to
show that there was any interference with the
freedom OF Scheinbaum In deciding whether he
would enter Into the contract with the corporation.
The courts Of this state recognize the right OF
employees and employers 70 organize and cooperate
for any lawful purpose. Contracts for labor may
he freely made with individuals or a combination
OF individuals, and so long as they do not interfere
with public safety. health or morals they are not
Illegal. The views OF this court as TO what con-
stitutes freedom TO contract In relation 10 the pur-
chase and sale OF labor. and as to what contracts
relating thereto are lawful and enforcible. were
stated with much detail and ability by the members
OF the court when the cases OF National Protective
Association rs. Cumming 40 y. Y, sIS and OF
Jacobs re. Cohen ns3 y. v. eo0 were decided. and
the decisions In those cases are substantially con.
trolling 10 the determination ~ this appeal.
In National Protective Association ~. Cumming
fsunral Il was said that a person may refuse to
work for another on any ground that he may re
gard as SUFFICIENT and the employer has no night
10 demand a reason for II. but even n the reason
Is that thc employee refuses 10 work with another
who Il not n member OF his organization II does
not affect his right to stop work or 10 refuse to
enter upon an employment. The converse OF this
statement must he true. and an employer OF labor
may refuse to employ~a person who Is a member
OF an" labor organization or he may make an
employment conditional upon the person employed
refralnlng from toining or becoming a member OF
a labor organization. II Is a well known fact that
combinations OF employees AND also OF employers
require their members 10 do or refrain from doing
many things which they deem TO their Individual
and combined advantage, while a person not a
member OF such an organization can ACT In accord
ance with the terms OF such agreement as he rnsy
choose TO make. 4 person employing labor may
decide hat 1t is to his advantage to employ only
union labor and he willing to enter Into an agree
mcnt necessary to procure such labor, or he inay
decide that 1t Is to his advantage TO employ non
union labor. In which case he may also decide that
II Is to his advantage to make the employment
conditional upon an agreement that such employee
will not Join or become a member Of q labor
organization.
Judge Chase then proceeds 10 prove that
what is sauce for the labor unions is also
sauce for the employers. He shows the
analogy between the case at bar and that
of Jacobs against Cohen, decided a few
months ago by the Court Of Appeals.
In the Jacobs case a contract was sus-
tanned and the employers held liable in
money damages, notwithstanding the fact
that the contract contained provisions
whereby the employers agreed not to en-
ploy any help whatsoever other than mem
bers Of a certain labor union, who should
procure a pass card showing that they were
in good standing, and whereby they agreed
to conform to the rules and regulations Of
the union and cease to employ any one
not acceptable to the union.
Judge Chase quotes from the opinion OF
Judge Gray in the Jacobs caee and applies
its doctrine to the Marcus case as follows:
Whatever else may be said III. this Is the case OF
IN agreement voluntarily made by an employer
with his workmen. which bound the latter to give
their skilled services for a certain period OF time
upon certain conditions. regulating the performance
OF the work to he done and restricting the class OF
workmcn who should be engaged upon II to such
persons as were In animation with an association
organized by the employers workmen with ref
erence TO the carrying on otthe very work. II would
| seem as though an employer should be unQues-
tlonably free TO enter into such q contract with his
workmen for the conduct OF the business without
It's being deemed obnoxious upon any ground OF
public policy. II II might operate TO prevent some
persons from being employed By the arm. or pos
slbly from remaining In the nrm's employment,
that Is but an Incidental feature. Its restrictions
were not OF an oppressive nature. ope rating gen.
orally in the community TO prevent such craftsmen
from obtaining employment and from earning
their livelihood. II WIS but q private agreement
between an employer and his employees concerning
the conduct Of the business for a year. and securing
to the latter an absolute right 10 limit the class OF
their fellow workmen to those persons who should
be In animation with an organization entered into
with design OF protecting their Interests In carry
Ing on the work.
That freedom 70 contract which entities an EN-.
ployer to make by agreement his place OF business
wholly within the control OF a labor union entities
him, II he so desires. TO require OF his employees
that they be wholly Independent OF any labor union.
Judge vann, who claimed that the con-
tract in the Jacobs case was void as against
public policy, nevertheless concurs In the
opinion Of Judge Chase. The only dissent
In the Marcus case is that OF Judge Edward
T. Bartlett, who likewise dissented in the
Joooba oaaa sT yote " savs 90 Rart-