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right to pursue their labors unmolested, and the plaintiff has just that same right to employ whomsoever it pleases, provided it can get men to enter such employment, and this right cannot be interfered with by threats, intimidation, or coercion by the defendants, whether they act singly or as a result of an organization or conspiracy.

In this case the evidence points unmistakably to the fact that the purpose of the defendants was not by peaceful persuasion to endeavor to prevent men from entering the employment of the plaintiff and working; but, on the other hand, it seems as though the defendants took the course they did, and by the means complained of, to compel the plaintiff to accede to their demands, or else destroy its business, and in doing that they exceeded their rights under the decisions of this state.

[3] In order to constitute intimidation, it is not necessary that there should be any direct threat, still less any actual act of violence. It is enough if the mere attitude assumed by the defendants is intimidating, and this may be shown by all of the circumstances of the case, by the methods of the defendants, and numbers their devices. New York Central Iron Co. v. Brennan, 105 N. Y. Supp. 869; Foster v. Retail Clerks' Protective Ass'n, 39 Misc. Rep. 48, 78 N. Y. Supp. 860; People v. Wilzig, 4 N. Y. Cr. R. 403; People v. Kostka, 4 N. Y. Cr. R. 429. In Mills v. U. S. Printing Co., 99 App. Div. 605, 91 N. Y. Supp. 185, Jenks, J., said:

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"'Picketing' may simply mean the stationing of men for observation. If in the doing of this act, solely for such purpose, there be no molestation or physical annoyance, or let or hindrance of any person, then it cannot be said that such an act is per se unlawful; but 'picketing' may also mean the stationing of a man or men to coerce or to threaten, or to intimidate or to halt, or to turn aside against their will those who would go to and from the picketed place to do business or to work or to seek work therein, or in some other way to hamper, hinder or harass the free dispatch of business by the employer. In that case picketing may well be said to be unlawful. I may add that I am not prepared to say that all picketing which goes no further than 'persuasion and entreaty' of those who are about to work or to seek work or to do business in the picketed place, is absolutely lawful. A wayfarer upon the public street should be free for peaceful travel. No man against my will has the legal right to occupy the public street to arrest my course, or to join me on my way, be he ever so polite or gentle in his insistence. There may be no intimidation, and yet an interruption of peaceful travel. There may be annoyance without danger."

What constitutes peaceful picketing may be answered by any fairminded man, if this question is asked: "Would this be lawful if no strike existed?" Would it be lawful for one or more men to use offensive, abusive, insulting, or threatening language to another or others; for one to call another a "rat," a "scab," a "yellow dog," a "yellow rat," or a "Hun," or by any other name commonly accepted as offensive or degrading, or calculated to provoke the other to break the peace in resentment, or to so intimidate them that he or she would refuse to work?

Because such occurrences are liable to be the result of passions inflamed by such controversies, there is an insistent and undeniable demand that all persons having part in a strike, who are trying to exercise their rights under the law to maintain the strike, should be persistent in their efforts to keep the controversies within lawful bounds, and to guard that these inexcusable results do not follow. Otherwise,

(178 N.Y.S.)

in the estimate of the public generally, they will be held to some considerable measure of responsibility.

It was not given any one the privilege to enforce his views upon others-to compel others to listen. The right of others to listen or decline to listen is as sacred as that of free speech. It is clear that, if one does not desire speech of another, he may as surely have his privacy therefrom as the privacy of his home. It is undeniable that the so-called right of peaceful persuasion may be exercised only upon those who are willing to listen to the persuasive arguments.

It is a safe and proper generalization that any action having in it the element of intimidation, coercion, or abuse, physical or verbal, or of invasion of rights of privacy, when not performed under sanctions of law by those lawfully empowered to enforce the law, is unlawful. Every act, of speech, of gesture, or of conduct, which any fair-minded man may reasonably judge to be intended to favor insult, threat, or annoyance to another, or to work assault or abuse on him, is unlawful. Government fails in its duty, and liberty ceases to exist, when it lies within the power of one man, or group of men, to deny to any other man, or group of men, the right to seek and accept such employment as they desire.

These propositions are so elemental that, but for the confusion which exists in many minds that a labor controversy affects the commonest rules of life, it would seem a waste of time to state them. The existence of a strike does not make that lawful which would otherwise be unlawful. These personal rights to which we have alluded are, in each instance, precisely those which the striker himself would insist upon were conditions reversed. They are also so plain, and the answers to the questions involving them so certain, that one called upon to enforce the law, if he has but ordinary intelligence, will plainly fail to do his duty when in his presence a fellow citizen suffers an invasion of his rights of this character. Stephens v. Ohio Tel. Co. (D. C.) 240 Fed. 759; St. Germain v. Bakery & Confectionery Workers' Union, 97 Wash. 282, 166 Pac. 665, L. R. A. 1917F, 824.

[4] I find, therefore, that the three men and women named deliberately disobeyed the order of the court. This makes it a case of criminal contempt. The only question left is as to the proper punishment to be inflicted upon them for what they have done. The facts being as they are in this case, every consideration of law and order requires such a sentence as will prevent these acts in the future.

An injunction is not sacred as coming from any man, but to disobey it is a serious thing, because it is disobeying the law, which, in this country, workmen themselves helped to make and should help to uphold.

An order may therefore be made:

(1) Directing that Robert F. Stump be imprisoned for the period of 30 days, and that he be fined the sum of $250.

(2) That Otto Boelke be imprisoned for the period of 30 days, and that he be fined the sum of $250.

(3) That Harry T. Wilpers be imprisoned for the period of 20 days, and be fined the sum of $250.

(4) That Hannah Chrisman be fined the sum of $250.

HARNICK v. SAPERSTEIN.

(Supreme Court, Appellate Term, First Department. October 17, 1919.) ATTACHMENT 251, 278-VACATION OF WARRANT NOT CONDITIONAL ON FILING

BOND OR MAKING DEPOSIT.

The granting of defendant's application to vacate warrant of attachment cannot be made conditional on his filing bond or making deposit to secure judgment which may be obtained against him, and under Code Civ. Proc. § 709, on vacation of the warrant and proper demand, he is entitled to the attached goods.

Appeal from City Court of New York, Special Term.

Action by Sam Harnick against Charles Saperstein. From part of an order setting aside a warrant of attachment, defendant appeals Modified.

Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

Robert Seelav, of New York City, for appellant.

Samuel Dickstein, of New York City, for respondent.

PER CURIAM. We know of no rule whereunder, upon the granting of an application by defendant to vacate a warrant of attachment, the relief applied for can be made conditional upon defendant filing a bond, or in lieu thereof depositing in court a sum sufficient to secure any judgment that may be obtained against him. That, however, was required in the case at bar, contrary to the provisions of the statute. Defendant was entitled on the vacating of the warrant in question, and on proper demand therefor, to the attached property in question. Section 709, Code C. P.

Order modified, by striking out condition imposed, and, as so modified, affirmed, with $10 costs and disbursements to the appellant.

COOPER v. ROGGEN et al.

(Supreme Court, Appellate Term, First Department. October 17, 1919.)

1. DISCOVERY 63-QUESTION TO DEFENDANT ON EXAMINATION BEFORE TRIAL NOT WARRANTED BY ORDER.

An order for examination of defendant as to whether defendants were to pay plaintiff commissions on sales, renewal orders, and mail orders, and the aggregate of renewal and mail orders between certain dates, did not warrant a question calling for names, addresses, dates, and individual amounts of all customers who sent mail orders to defendant within a specified period.

2. DISCOVERY 63 RULING SUSTAINING OBJECTION TO QUESTION ON EXAMINATION BEFORE TRIAL PROPER.

Where the testimony of a defendant on examination before trial showed that he had received no letter from plaintiff agreeing an amount should be in full payment of his claim, and the order for defendants' examination before trial did not authorize the inquiry, plaintiff, a salesman suing defendants for commissions, cannot complain of the City Court's ruling sustaining defendants' objection to the question whether they had received the letter from plaintiff.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. DISCOVERY

(178 Ν.Υ.Σ.)

63-DEFENDANT MUST ANSWER QUESTION SPECIFIED IN ORDER

FOR EXAMINATION BEFORE TRIAL.

A defendant, on his examination before trial, should have been required to answer whether plaintiff personally said to him that he (plaintiff) would pay defendant a certain amount, an inquiry specified in the order for defendants' examination before trial.

4. DISCOVERY 63-QUESTION ON EXAMINATION BEFORE TRIAL RELEVANT UN

DER THE ORDER.

In an action by a salesman to recover commissions, in view of the broad form of the order for the examination of defendants before trial, held, that they should be required to give the names, addresses, dates, and amounts of various orders received by them otherwise than through plaintiff salesman; there being nothing to indicate the information would be used for improper purposes, and the matter being relevant.

5. DISCOVERY 41-COURT ON EXAMINATION BEFORE TRIAL, CANNOT PASS ON COMPETENCY OF EVIDENCE.

In examinations before trial, the court has no power to pass on the competency or admissibility of the evidence, and can consider only questions relating to the relevancy of the evidence and any privilege of the witness; latitude being desirable in examining an adverse party.

Appeal from City Court of New York, Special Term.

Action by Abraham S. Cooper against Louis A. Roggen and others. From an order sustaining an objection to questions on examination of defendants before trial, plaintiff appeals. Order modified and affirmed.

See, also, 107 Misc. Rep. 494, 174 N. Y. Supp. 687; 176 N. Y. Supp. 808.

Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

Max Schleimer, of New York City, for appellant.
Adolph Cohen, of New York City, for respondents.

GUY, J. Plaintiff appeals from an order of the City Court denying his request to direct the defendant Harry Roggen, in an examination that defendant had at the instance of the plaintiff before trial, to answer certain questions specified in said order. The pleadings are not in the papers; but it seems the action is one by a salesman for the recovery of commissions, and that defendants pleaded an account stated and accord and satisfaction as a defense.

The defendant Harry Roggen testified on the examination that under certain conditions it was a part of plaintiff's duties to solicit orders of merchants for the defendants, and to sell goods manufactured by defendants at certain prices, for which services, under certain conditions, defendants agreed to pay plaintiff 7 per cent. commission; that under certain conditions defendants agreed to pay plaintiff 7 per cent. commission on all renewal orders of orders procured by plaintiff, and "on all mail orders sent by customers to the defendants which were solicited by the plaintiff"; also 7 per cent. "on all orders received by the defendants from customers of the state of Pennsylvania." He also testified to the amount of sales made by plaintiff, the aggregate orders received by defendants from customers of the state of Pennsylvania, the aggregate amount of orders received

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

by mail by the defendants from customers of the state of Pennsylvania, the names and addresses of customers, and the dates and amounts of the sales made by plaintiff within the period covered by the complaint.

The order appealed from specifies seven questions to which the court sustained defendants' objection, and five of these called for the names, addresses, dates, and amounts of orders received by the defendants of customers generally, or customers in the state of Pennsylvania.

[1] The ruling of the court below on the first question in the order appealed from, calling for the names, addresses, dates, and individual amounts of all the customers who sent mail orders to the defendants in the period specified, was correct, for such inquiry is not warranted by the order for examination, which in that connection fixes the scope of the examination as follows:

(3) "Whether the defendants agreed to pay the plaintiff 7 per centum commissions on all sales made by me and also 7 per centum commissions on all renewal orders and mail orders received by the defendants from customers of the state of Pennsylvania"; (8) "the aggregate sales made of renewal orders received by the defendants from customers of the state of Pennsylvania between March 18, 1918, and May 17, 1918"; and (9) "the aggregate sales of mail orders received by the defendants from customers of the state of Pennsylvania between March 18, 1918, and May 17, 1918."

In no part of the record is it intimated that the plaintiff was entitled to receive a commission on orders given by all the customers of the defendants, and such inquiry would have no relevancy to the issues in the case.

[2] The appellant cannot complain of the court's ruling sustaining defendants' objection to the question whether they received a letter from the plaintiff by which he agreed that $385 should be in full pay-' ment and satisfaction of his claim, because the testimony of the witness previously given showed that he had received no such letter, and the order for the examination did not authorize the inquiry.

[3] The witness, however, should have been required to answer whether the plaintiff personally said to him that plaintiff would pay the defendants $136.39, for that inquiry is specified in the order, and we must therefore assume that the plaintiff is entitled to put the question.

[4] The remaining question is whether the defendants should be required to give the names, addresses, dates, and the amounts of the various orders received by defendants as testified to by the witness. Although defendants at the first session of the examination refused to give the names, addresses, dates, and amounts of the sales made by plaintiff, such refusal being sustained by the court, at a subsequent session they waived the ruling of the court and gave the information asked for; but they still refused to give the names, addresses, dates, and amounts of the other orders apparently in issue-the main grounds of objection being "that the information may be used for sinister purposes," and that the order for the examination did not call for such information. Other than the statement of the objection, there was nothing to indicate the probability that the information asked for

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