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M. Kraus & Bros., Inc. v. Bergman

Supreme Court of New York, Appellate Division

April 12, 1955

M. Kraus & Bros., Inc.
v.
Bergman

APPEAL from a judgment of the Supreme Court at Special Term (JOSEPH, J.), entered May 11, 1954, in New York County which permanently restrained the defendants from picketing plaintiff's place of business and from creating any impression that a labor dispute exists and from interfering with plaintiff's employees and business.

COUNSEL

Morris Bauman of counsel (Rauch & Bauman, attorneys), for appellants.

Frederic S. Berman of counsel (Berman & Berman, attorneys), for respondent.

Per Curiam.

Plaintiff, engaged in the wholesale meat business in New York City, employs approximately thirty people, all of whom were represented solely by the Butchers Workmen Union pursuant to a collective bargaining agreement between that union and plaintiff.

For some twenty years prior to September, 1952, plaintiff had utilized the services of one Philip Katz, doing business as Western Union Cleaning, to do its window cleaning on a month

Page 616

to month basis. It is conceded that Katz was an independent contractor. Plaintiff discontinued the services of Katz in September, 1952, and engaged the services of one William Rosenblatt, doing business as Criterion Porter & Window Cleaning Service Co. Thereafter, an official of defendant union visited plaintiff's place of business and demanded that plaintiff discontinue the new services and re-engage Katz. Upon plaintiff's refusal to reinstate Katz, defendant began to picket the premises of plaintiff with signs bearing the following inscription: 'Do Not Patronize. This Store Is Unfair to Manhattan Window Cleaning Union 185 Stanton Street. Please Help Us Win.' This picketing of plaintiff's premises continued intermittently for a period of one year and a half.

It is to be noted that at no time had Katz ever informed plaintiff of his affiliation with defendant union, nor had the union previously made known to plaintiff that it was the bargaining agent for Katz. It is also to be noted that at no time had defendant ever represented any employees of plaintiff, nor had defendant ever attempted to organize the employees of plaintiff. There was no employer-employee relationship, past, present or prospective, involved at all in the matter in which the union attempted to intercede. Plaintiff was not engaged in the industry, trade, craft or occupation in which the alleged dispute occurred.

The picketing placard was clearly an untruthful representation. Katz was an independent contractor. The Special Term was fully warranted in holding that there was no labor dispute existing under section 876-a of the Civil Practice Act. Furthermore, the court properly found that defendant union was unlawfully attempting to coerce plaintiff to terminate its service contract with its present window cleaner, and re-engage the services of Katz.

The judgment should accordingly be affirmed.

BASTOW, J. (dissenting).

The parties to this action stipulated at the beginning of the trial 'that the provisions of sections 439 and 440 of the Civil Practice Act, with respect to findings of fact and conclusions of law, be waived'. We have heretofore held that the presentation of requests to find the essential facts upon which the court must pass as required by section 439 of the Civil Practice Act may be waived but not the basic requirement of section 440 that the essential facts be stated in the court's decision. (Steel Co. of So. Cal. v. Associated ...


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