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H. William Thompson, Doing Business under the Firm Name and Style of the Lyric Theatre v. Fred Boekhout Lewis Townsend, Individually and as President of the Moving Picture Operators, Local No. 253, Also Known as the Rochester, New York, Moving Picture Operators, Local No. 253 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, and Alvin Moyer
Opinions in this case
- Majority
- Dissent — Edgcomb
Per Curiam. The order should be affirmed upon the ground that a “ labor dispute ” is not involved in this case within the contemplation of subdivision 10, paragraphs (a), (b) and (c), of section 876-a of the Civil Practice Act. That subdivision is clearly intended to be far reaching, although it is difficult of analysis and construction.
It is evident that the Legislature went far in preventing the use of law court machinery to protect property rights from despoliation by persons claiming to have grievances against the property owners. Still, the statute must be read with the rights and claims of the public and of business men in mind, as well as the rights and claims of labor unions.
Whatever may be said about the controversies going on while defendant Moyer was an employee of 78 plaintiff, when the enjoined acts of defendants were initiated and while they were continuing, plaintiff’s situation was exactly the same as if he had never had an employee. He was, by his own choice —■ a choice which he was entirely free to make —■ conducting a business without hiring help.
His business was interfered with to his serious and continuing damage simply because he did not choose to hire a projectionist at a salary named by defendant Moving Picture Operators. We do not reach the constitutional question so ably discussed by our brother Edgcomb in the dissenting opinion, where the facts are stated.
We stand entirely upon our conclusion that the Legislature cannot have intended by section 876-a of the Civil Practice Act to prevent one in the position of this plaintiff when this picketing started from invoking the equity powers of the Supreme Court without being compelled to comply with. all the cumbersome and expensive preliminaries prescribed in section 876-a. And the injunction granted furnishes plaintiff his only adequate remedy.
All concur, except Seaks, P. J., and Edgcomb, J., who dissent and vote for reversal on the law and denial of the motion in an opinion by Edgcomb, J. Present — Seabs, P. J., Taylob, Edgcomb, Thompson and Crosby, JJ.