OLD DOMINION S. S. CO. v. McKENNA

OLD DOMINION S. S. CO. v. McKENNA. U. S. Circuit Court, Southern District of N. Y.; February, 1887. 1. Cause of action; inducing employees to quit work.] Interference with the lawful business of an employer, whose workmen are engaged upon just and satisfactory wages, by procuring them to quit work in a body, if committed by persons not in the employ of the same employer, and for the purpose of injuring his business until he shall accede to demands he is under no obligation to grant, is actionable. 3. The same; boycott.] So is declaring and attempting to enforce a boycott for the purpose of coercing compliance with such demands. 3. The same; illegal combinations or associations.] .It seems, that all comMnations and associations designed to coerce workmen to become .members of such combinations or associations, or to interfere with, obstruct, vex or annoy them in working or in obtaining work, because they are not members, or in order to induce them to become members, or designed to prevent employers from making a just discrimination between the wages paid to the skilful and to the unskilful, to the diligent and to the lazy, to the efficient and to the inefficient, and all associations designed to interfere with the perfect freedom of employers in the proper management and control of their lawful business, or to dictate in any particular the terms upon which their business shall be conducted, by’ means of threats of injury or loss, by interference with their property or traffic, or with their lawful employment by other persons, or designed to abridge any of these rights, are pro tanto illegal combinations or associations; and all acts done in furtherance of such intentions by such means, and accompanied by damage, are actionable. 4. Boycotting, a crime.] It seems, that such boycotting is also a misdemeanor, both at common law and under section 168 of the Penal Code of Mew York, 6. Arrest in action for inducing strike and boycotting.] An action to recover damages from those who have combined to do such injury to plaintiff's business and the uses of his property is “an action for an injury to property” within subdivision 2 of section 549 of the M. Y. Code of Civil Procedure, and an order of arrest may be granted therein. Motion to vacate an order of arrest. The Old Dominion Steamship Co. brought this action against John G% McKenna and four others to recover $20,000 damages, alleged to have been sustained by the plaintiff through the unlawful action of the defendants in a recent Strike of’longshoremen in the port of New York, and in their attempt to boycott the plaintiff in its business as a common carrier. At the commencement of the action, upon affidavits to the truth of the allegations in the complaint, and setting forth mimero ns details and documentary evidence, the plaintiff obtained an order for the arrest of the defendants, nnder the New York Code of Civil Procedure, section 549, subdivision 2, which allows arrest in an action “ to recover damages for an injury to property,” and section 3343, subdivision 10, which defines an injury to property as “ an actionable act 'whereby the estate of another is lessened.” The motion to vacate the order of arrest was made upon the plaintiff’s papers only. The grounds of the motion are stated in the opinion of the court. Samuel Ashton and Louis F. Post {Louis F. Post, attorney) for the defendants and motion. I. This application must be heard upon the papers on which the order was granted only. Code Civ. Pro., § 568. And the plaintiffs case must be such as would be sufficient to enable him to rest on the trial. Barrett, J., in Grimes v. Davison. 2 Abb. N. C., 457; and see Vanderpool v. Kissam, 4 Sand., 715. II. The material allegations of the complaint are only supported by oath on information and belief, and do not satisfy the rule that, so far as facts are within knowledge they must be stated positively ; where they necessarily rest on information (1) the sources and nature should be particularly set out; and (2) reason given why a positive statement cannot bo procured. Whitlock v. Roth, 10 Barb., 78; De Weerth v. Feldner, 16 Abb. Pr., 295; s. c., 25 How. Pr.. 419; Satow v. Reisenberger, 25 How. Pr., 164; Cook v. Roach, 21 id., 152; Rassber v. Ashley, 2 Monthly L. Bul., 53; Dreyfus v. Otis, 54 How. Pr., 405; Knapp v. Browne, 6 Weekly Dig., 570. III. As the action involves a doubtful question of law, the arrest sho.uld not be allowed. “ A reasonably clear case must appear to authorize the order.” Cormier v. Hawkins, 69 N. Y, 188. IV. The allegation of conspiracy does not avail to support this motion, for it cannot make wrongful an act which if done by one alone would not sustain an action. Parker v. Huntington, 2 Gray. 124; Kimball v. Harman, 34 Md., 407, 1871; Hutchins v. Hutchins, 7 Hill, 104, 107; Wellington v. Small, 3 Cush., 145; Alder v. Fenton, 24 How., U. S., 407; Cotterell v. Jones, 11 Com. Bench, 713; Savile v. Roberts, 1 Ld. Raym., 374, per Holt, J.; Saunders’ Note to Skinner v. Gunton, 1 Saund., 230. V. Neither class of acts are actionable wrongs. 1. Acts causing plaintiff’s workmen to withdraw are not. At common law trespass must be alleged. Case would only lie under 23 Edw. III. (A. D. 1349) forbidding the harboring of a servant departing without cause, “ before the term agreed.” See Historical Review by Coleridge, J., in Lumley v. Gye, 2 El. & Bl., 216, 244; Haight v. Badgeley, 15 Barb., 499. Hence a broken term of service must be shown. Boston Glass Manufactory v. Binney, 4 Pick., 425; Lumley v. Gye, 2 El. & Bl., 216; Woodward v. Washburn, 3 Den., 369. Or, in the case of piecework, the non-completion of the particular piece. Hart v. Aldridge, 1 Cowp., 54; Gunter v. Astor, 4 J. B. Moore, 12; Blake v. Lanyon, 6 T. R., 221. 2. The acts alleged to be intended to cause common carriers and warehousemen to refuse to receive or deliver goods are not actionable. There is no allegation of actual refusal, and if there were, inducing a breach of a contract is not actionable unless the contract be for personal services. Cooley on Torts, p. 487, and note; Coleridge, J., in Lumley v, Gye, 2 El. & Bl., 216, 246; Kimball v. Harman, 34 Md., 407; s. c., 6 Am. R., 340; Vicars v. Wilcox, 8 East., 1; Morris v. Langdale, 2 Bos. & Pul., 284; Winterbottom v. Wright, 10 M. & W., 109. In some cases, to the contrary, it will be found that the character of the means employed (e. g., fraud) and not the mere fact of inducing a breach, was the gist of the action. See Benton v. Pratt, 2 Wend., 385. Nor does the complaint make a case of slander of title or slander concerning one in his trade. Bowen v. Matheson, 14 Allen, 499, 503. VI. The doctrine of Walker v. Cronin, 107 Mass., 555, does not sustain the action, because it only applies to the case of one who in mere wantonness or malice, without the justification of competition, or the service of any interest or lawful purpose, induces servants to leave; whereas here neither disorder nor violence is shown, and nothing appears but an orderly and peaceable co-operation of workingmen to raise or maintain wages. Hence plaintiff’s loss, if any, is damnum absque injuria. N. Y. Laws of 1870, c. 19, 7 Edm. Ed., 581, as modified in Penal Code, § 170, reversed the policy of the law of this State, as declared by Savage, C. J., in People v. Fisher (14 Wend., 9), and by Mayor Radcliffe in the Journeymen Cordwainer’s Case (Yates Sel. Ca., 111), and broadened the more liberal doctrine declared by Daly, C. J., in Master Stevedores’ Association v. Walsh (2 Daly, 1). The policy of our law in this particular in now in harmony with the views represented by Shaw, C. J., in Com. v. Hunt (4 Metc., 111). VII. Carew v. Rutherford, 106 Mass., 1, was based on extortion ; and the court expressly distinguished the case of combination without unlawful object. Bowen v. Matheson, 14 Allen, 499, is directly, in point, and if accepted as authority, is decisive of this action. Clarence A. Seward (Seward, Da Costa & Guthrie, attorneys) for the plaintiff, opposed. I. A man’s calling or business is as much his property and estate in the sense' of the law as any other right. Mr. Justice Bradley (Slaughter House Cases, 16 Wall., 36, 116) said: “For the preservation, exercise and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession or trade as may seem to him most conducive to that end. Without this right he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling when chosen is a man’s property and right. Liberty and property are not protected when these rights are arbitrarily assailed.” The plaintiff is a common carrier engaged under the license of the government, in the use of a line of steamships between New York and ports in Virginia, and also in the use of the necessary lighters and tugs in the harbor of New York, and such trade, calling and business is that of a common carriel1, and is property in the highest sense of that expressive term. In Jackson v. Housel (17 Johns., 283) is a definition of property borrowed from Jacob’s Dictionary, and the accuracy of which was affirmed in Stief v. Hart (1 N. Y., 21, 24) in these words: “Property is defined to be the highest right a man can have to anything, being used for that right which one hath to lands or tenements, goods or chattels, which no way depend on another man’s courtesy.” The right of this plaintiff to pursue its business with its goods and chattels as a common carrier is a right given by the law of nature and protected by the common law, and which in no way depends on another man’s courtesy. It is an absolute right to labor, and that right, since the creation, has been a duty also. II. By moving solely on the oiiginal papers, every averment of fact, and fair inference of fact to be drawn therefrom, is admitted. ' Phillips v. Wortendyke, 31 Hun, 192; Wolfe v. Brouwer, 5 Robt., 602; Union Bank v. Mott, 9 Abb. Pr., 106; Ballouhey v. Cadot, 3 Abb. Pr. N. S., 122. The wrongful intent is charged as a fact. Forbes v. Waller, 25 N. Y., 430, 439; Seymour v. Wilson, 14 id., 567, and is admitted by the motion. III. The complaint and affidavit state positively all the material allegations, except such as from their nature are necessarily made on information and belief, and as to those the sources of information are given,and this is sufficient. DeWeerth v. Feldner, 16 Abb. Pr., 295; s. c., 25 How. Pr., 419. And by the form of their motion, the defendants admit allegations on information and belief. Wolfe v. Brouwer, 5 Robt., 602. IV. An action in the nature of a conspiracy is given by the common law if the plaintiff has sustained special damage. Savile v. Roberts, 1 Lord Raym., 374, 378. A leading case upon such a cause of action is that of Gregory v. Duke of Brunswick (6 M. & S., 205), which was an action on the case Ur conspiracy to preveni the plaintiff, who was an actor, from acquiring fame and profit, and for hiring persons to hoot and groan and jell at the plaintiff.during the performance, and for hooting, hissing and veiling,at him, and in which' the defendants pleaded specially, and the court held their principal plea insufficient, and gave judgment for the plaintiff. The principle of this case was confirmed in Buffalo Lubricating Oil Co. v. Everest (30 Hun, 588), in which the court said : “ Any unlawful act done with a view of injuring another in his reputation, business or property is actionable if damage results therefrom.” And that a conspiracy “ consists in the unlawful combination or agreement of two or more persons to do an unlawful act in itself or to do a lawful act by unlawful means.” In Carew v. Rutherford (106 Mass., 1, 10), Chapman, C. J., said: “ If the wrongful acts done are tortious, whether criminal or not, the persons who are guilty of the tortious acts will be civilly liable to those whom they have injured ; if the defendants have injured the plaintiff unlawfully the articles of association cannot protect them. . . One of the aims of the common law has always been to protect every person against the wrongful acts of every other person, whvcher committed alone or in combination with others; and it has provided, an action for injuries done by disturbing a person in the enjoyment of any right or privilege which he has. Many illustratians of this doctrine are given in JBac. Ah. Actions on the case, F., among which are the following: ‘If A, being a mason, and using to sell stones, is possessed of a certain stone-pit, and B, intending to discredit it and deprive him of the profits of the said mine, imposes so great-threats upon Ins - workmen, and disturbs all comers, threatening to maim and vex them with suits if they buy any stones, so that some desist from working and others from buying, A shall have an action upon the case against B, for the profit of his mine is thereby impaired.’ So ‘ if a man menaces my tenants at will ■ of life and member,per quod they depart from their tenures, an action upon the .case lies against him.’ - If a man discharges guns near my decoy-pond with design to damnify me by frightening away the wild fowl rercWg fkcvcfo and the wild fowl are thereby frightened away, and I am damnified, an action on the case lies against him.’ Slander as to one’s profession or title is a wrong of a similar character. The illustrations given in former times relate to such methods of doing injury to others as were then practised, and to the kinds of remedy then existing. But as new methods of doing injury to others are invented in modern times, the same principles must be applied to them, in order that peaceable citizens may .be protected from being disturbed in the enjoyment of their rights and privileges, and existing forms of remedy must be used.” In Walker v. Cronin (107 Mass., 555) the court states the general principle taken from Comyn’s Digest as follows: “ In all cases where a man has a temporal loss or damage by the wrong of another he may have an action upon the case, to be repaired in damages.” And it therefore held that an action of tort might be maintained upon a count which alleged that the plaintiff was a manufacturer of shoes, and for the prosecution of his business it was necessary for him to employ many shoemakers ; that the defendant, well knowing this, did unlawfully, and without justifiable cause, molest him in the carrying on of the ¿«id business with the unlawful purpose of preventing him from carrying it on, and wilfully induced many shoemakers who were in his employment, and others who were about to enter it, to abandon it without his consent and against his will; and that thereby the plaintiff lost their services and the profits and advantages which he would have derived the,"from, and was put to great expense to procure other suitable workmen, and compelled to pay larger prices for work than he would have had to pay but for the said doings of the defendants, and was otherwise injured in his business. In Gunter v. Astor (4 J. B. Moore, 12) an action was maintained for enticing away workmen from their employment for a'pianoforte manufacturer. They were not hired for any limited time, but worked by the piece. The discussion indicates that damages were considered to be recoverable for the breaking up or disturbance of the business of the plaintiff, whereby he suffered the loss of his usual profits for a long period. The grounds of damage were apparently regarded as altogether independent of the mere loss of any contracts with the workmen. In Bowen v. Hall (L. R., 6 Q. B. D., 333) it was stated that an action would lie against a third person who maliciously induces another to break his contract of exclusive personal service with an employer, which thereby would naturally cause and did in fact cause an injury to such employer. V. Where two or more persons unite and combine for the express purpose of doing an injury to a man’s trade, business or calling, their joint conduct is a tort in the nature of a conspiracy, and is actionable as such. It has been expressly held that such combinations as are alleged in the complaint and affidavits are illegal and wrongful conspiracies, for which if damage results, an action will lie. In People v. Fisher (14 Wend., 10) a conspiracy of journeymen workmen, of any trade or handicraft, to raise their wages by entering into combinations to coerce journeymen of master workmen employed in the same trade or business, to conform to rules established by such combination for the purpose of regulating the price of labor, and carrying such rules into effect by over acts, was held indictable as a misdemeanor. In the Master Stevedores’ Association v. Walsh (2 Daly, 1, 3) it was said: “ It has frequently been held that combinations to prevent a journeyman from working below certain rates or to prevent master workmen from employing one except at certain rates are unlawful. . . . Parties engaged in such combination may be indicted for conspiracy. . . . Several convictions in this country have been in cases where coercive measures were resorted to, either to prevent master workmen from employing journeymen except at certain rates, or to intimidate journeymen from engaging below such rates, or to compel them to become members of the combination. Every man has the right to fix the price of his own labor, to work for whom he pleases, and for any sum he thinks proper; and every master workman has equally the right to determine for himself whom he will employ, and what wages he will pay. Any attempt by force, threat, intimidation or other coercive means to control a man in the fair and lawful exercise of these rights is therefore an act of oppression, and any combination for such a purpose is a conspiracy.” In Johnston Harvester Co. v. Meinhardt (9 Abb. N. C., 393; s. c., 24 Hun, 489) the court said, when referring to Chapter 19 of the Laws of 1870, that “ this statute does not permit an association, or trades union so called, or any body of men in the aggregate, to do any act which each one of such persons, in his individual capacity and acting independently, had not a right to do before the act was passed. This act does not shield a person from liability for his action in intimidating or coercing a fellow-laborer so that he shall leave his employer’s service.” In State v. Donaldson (32 N. J. L., 151) it was held that it was an indictable conspiracy for several employees to combine and notify their employer that unless he discharges certain enumerated persons, they will in a body quit his employment, the court saying that the alleged aim of the combination was unlawful, the effort being to dictate to the employer whom he should discharge from his employment, and that this was an unwarrantable interference with the conduct of his business. In Bixby v. Dunlap (56 N. H., 456) it was held that when ' the relation of master and servant exists by virtue of a valid contract, the master may maintain an action on the case against any person who knowingly and wilfully induces the servant to break the contract and abandon the service. When the element of malice enters the case, a more liberal rule of damages prevails, and the jury, taking into consideration all the circumstances of the wrong, ought to give as compensation what in their judgment it is reasonable that the plaintiff should receive and the defendant pay. Being intended as a compensation for a wrong, and not as a punishment for the violation of criminal law, the damages are not open to the objection that they expose the defendant to a double punishment. In Haskins v. Royster (70 N. C., 601) it was held that any third person who, without lawful justification, induces a party, who for a consideration has contracted to render personal service to another, to quit such service, and refuse to perform his part of the agreement, is liable to the parties injured in damages. That the consideration of the contract is too small, or its terms not honorable, will not justify a court, for the benefit of a third person not a party thereto, in setting such contract aside. In Jones v. Block (43 Geo., 331) it was held that where one man employs a laborer to work on his farm, and another man, knowing of such contract of employment, entices and hires or persuades the laborer to leave the services of his first employer during the term for which he was so employed, the law gives to the party injured the right of action to recover damages. In Dickson v. Dickson (33 La. An., 1261), the defendants were held liable in damages to the plaintiff for having by threats, persuasion and otherwise induced the laborers on the latter’s plantation to abandon their work and violate their contract of employment, by which fact the plantation was left uncultivated. VI. Boycotting, as such, is actionable if private and particular damage is shown. Mogul Steamship Company v. McGregor, L. R., 15 Q. B. D., 476. In the case of Baughman Brothers v. Richmond Typographical Union (Richmond, Va., Circ. C., February 8,1887), which was an action on the case to recover $30,000 damages for boycotting the plaintiffs’ business, Judge Wellford, among other things, said: “ As another ground of demurrer, it was suggested that the damages alleged to have been sustained were too remote and uncertain. This objection is clearly untenable. The declaration does not allege damage merely by the prevention,of a probable future, trade, but by the destruction of an existing profitable trade. There is no element of speculation or contingency involved in the present loss of a valuable patronage. The circular of the defendants addressed every customer as a patron, and clearly contemplated his withdrawal of his dealings with the plaintiffs as an immediate damage to their business. The declaration alleges such damage as the cause of action—and I think, if proven to the satisfaction of a jury, it is sufficient. I am, therefore, of opinion that the demurrer should be overruled.” In a criminal case against the committee of the same Union, decided at the same time, Judge Alkins said: “It is contended by counsel for defence that the threats used by the conspirators in the case at bar are not illegal threats-, and therefore the means by which the conspiracy is to be carried out are not unlawful. The threats in this case were that the conspirators would do all in their power to break up and destroy the business of the parties to whom the threats were addressed, unless they would do something which they had a lawful right not to do. Are those ¡awful threats ? Has any man, or set of men, the legal right to say to an American citizen : Do as we dictate, or we will ruin you ? The enjoyment of life and liberty with the means of acquiring and possessing property is one of the inherent rights guaranteed to every citizen of this Commonwealth by the Bill of Bights. These privileges cannot be taken away or abridged except in accordance with law. No class of men can take the law into their own hands. In this case the threat is to break up and destroy the business o.f the customers of Baughman Brothers. This is an illegal threat because it is a threat to destroy a right guaranteed to them by the Bill of Bights. This is a threat to do an injury to a stranger unless he will do an injury to Baughman Brothers, against whom he has no cause of complaint. This is a threat to a party that unless he will co-operate with the conspirators and assist them to injure, ruin, break up and destroy the business of Baughman Brothers, that they will do all in their power to break up and destroy his business. Even though they meant that they would breakup and destroy the business of the customers by competition, yet, if those threats were intended and reasonably calculated to have the effect of intimidating or forcing the person to whom they were made into doing an act injurious to another, which it was his will and legal right not to do, they are unlawful.” In the case of Payne v. Railroad Company (13 B. J. Lea [Tenn.], 521), it was held that, “if the defendants, by means of ‘ threats and intimidations,’ have driven away plaintiff’s customers, and thus destroyed his trade, they have in jured him by an unlawful act, and are liable to him in damages, whether they did it wickedly and maliciously or not. Eor it is unlawful to threaten and intimidate one’s customers; and the loss of trade is the natural and proximate result of such acts.” VII. “ Combinations of artisans for their common benefit, as for the development of skill in their trade, or to prevent overcrowding therein, or to encourage those belonging to their trade to enter their fold, or for the purpose of raising prices of labor, are valid, provided no force or other unlawful means be employed to carry out their ends, or their "object be not to impoverish third persons, or to extort money from employers, or to encourage strikes or breaches of contracts, or to restrict the freedom of members for the purpose of compelling employers to conform to their rules.” Greenhood on Public Policy, 648, citing authorities in support of these rules, and the language of East, J., in Queen v. Rollins (17 Queen’s Bench, 671), as follows : “ The rights of workmen are conceded, but the exercise of free will and freedom of action within the limits of the law is also secured equally to the masters.” VIII. The acts alleged are criminal under Penal Code, §168. IX. The complaint is sufficient. 1. It alleges the employees to have been in plaintiff’s employment, and on terms just and satisfactory ; which implies a contract, and details are matter of evidence and not pleading. 2. The evidence of actual refusal in the affidavits is admissible under the allegation of defendants’ acts and the resulting damage. Moreover the plaintiff specifically avers the injurious consequence of defendant’s notices to foreign steamship companies and to the warehousemen. 3. The allegation of the deterring of ships at the South is admitted by the motion; and the evidence contained in the affidavit fully supports it; and the consequent falling off in business, which is specifically alleged, constitutes a cause of action. Gregory v. Duke of Brunswick, 6 M. & G., 205; Buffalo Lubricating, etc., Co. v. Everest, 30 Hun, 586; Carew v. Rutherford, 106 Mass., 1; Walker v. Cronin, 107 Mass., 515; Gunter v. Astor, 4 J. B. Moore, 12 ; Bowen v. Hall, L. R., 6 Q. B. D., 333; Tarlton v. McGawley, Peake, 105 ; Jones v. Van Zandt, 5 How. (U. S.), 215, 226 ; Blake v. Lanyon, 6 Term Rep., 221; Rafael v. Verelst, 2 Wm. Black, 1055. 4. Bowen v. Matheson (14 Allen, 499) does not conflict with plaintiff's case, for it rested on the mere refusal to continue to furnish more men, and, without using illegal or improper means, preventing men from shipping. X. The gravamen of the argument of the defendants is this : The complaint does not allege any physical violence to physical property, and therefore does not state a cause of action. The argument denies that the right to pursue a trade or calling is property, and asserts that acts which prevent or interfere with or seek to terminate that right, and which produce such special damage as is alleged, are not actionable. In other words, the defendants’ position is that so long as they abstain from physical injury to person or property, so long they may commit the acts complained of with impunity. In fine, they assert that boycotting is lawful. Such an assertion is as yet without judicial support. The authorities hereinbefore cited show that where the matter has come up judicially, all that is implied in the word “ boycott ” is held to be criminal and actionable if it produces special damage. The Penal Code of the State stamps the acts as criminal, and all the authorities are to the effect that when the act is criminal and it produces damages it is actionable; and the leading case in Massachusetts of Carew v. Rutherford (106 Mass., 1) asserts that if the wrongful acts are tortious the persons who are guilty of them will be civilly liable to those whom they have injured, whether such acts be criminal or not. The complaint, after averring plaintiff’s incorporation under a public act of the legislature of Delaware, alleged: I. The property and estate of the said plaintiff consist in seven steamships, which sail weekly, under the proper license of the Government of the United States, from the port of Mew York coastwise to the ports of Morfolk, Mewport Mews, West Point, City Point, and Richmond, in the State of Virginia, and from the said ports in the State of Virginia coastwise to the port of Mew York, and in so., doing make seven weekly trips each way; and said property and estate also further consist in the money income and revenues which have been derived by the said plaintiff from the use of the said steamships and from contracts of affreightment, and the general transportation of goods, wares and merchandise thereon in its business as a common carrier, and in the conduct therewith of a general trade and commerce under the license aforesaid between the ports aforesaid; and said property and estate also further consist in the ownership and use, and which is a necessary one, in connection with the said steamships, and in the harbor and port of New York, of a large number of lighters and stéam-tugs, and in the money income and revenues derived from such use. Hitherto, and for many years last past, the said plaintiff has been in the uninterrupted enjoyment and use of one or all of the said steamships, lighters and stdam-tugs, and in the receipt of a large and permanent money income therefrom and from its business as carriers. In so using the same, the plaintiff has of necessity employed large numbers of men, at all the ports aforesaid for the purpose of loading and unloading said vessels, and of transferring the cargoes thereof, by means of the lighters and tugs aforesaid in the port of New York, to the steamships therein which belong to the various transatlantic steamship lines Which centre in the port of New York and sail thence to various English and European ports. II. A large portion of the business of the plaintiff consists, and always has consisted, in transporting and procuring the transportation of- cotton, tobacco, linseed oil and seed, lard, bacon, and other products, from the points of production or manufacture, by railway to some one of the Southern ports aforesaid, and thence by its said steamships to the port of New York, and there distributing the same to and among such foreign steamships; and by an arrangement, which has been jointly sanctioned by both the said plaintiff and said foreign steamship lines, the agents of the railway companies, or other persons at the place of production or manufacture, have been authorized to issue to shippers through bills of lading for their shipments from the point of departure to the destined English or European port. In the conduct of sticli business the plaintiff has been without water competition, as its-line of steamships was and is the only coastwise line'of steamship commtinication between the ports aforesaid, and, by the greater cheapness of water transportation; the plaintiff has been enabled to build up and maintain a remunerative trade and commerce as a carrier in competition with the" various, trunk railway lines of the country. III. In the conduct of such business the employment of a large number of men aforesaid on the steamships aforesaid and for the purposes aforesaid was and is an absolute necessity, and without the use of such labor the property and estate of the said plaintiff would be and become and remain absolutely valueless for the purpose of the conduct of the plaintiff’s trade, business and commerce aforesaid, IV. Heretofore the said plaintiff has been enabled, and without difficulty of any kind, to procure at all the ports aforesaid all the men and labor necessary to enable it to enjoy and use its property and estate aforesaid, and to secure the income and revenues therefrom as aforesaid, and to discharge its duties to the public as a general common carrier of goods, wares, merchandise and passengers. V. For a long time past the plaintiff has been the lessee of the pier or dock in the Hudson or North River, in the port of New York, known as Pier 26, new number, and has been there accustomed to receive, dispatch, load, unload and transfer to lighters so much of the cargoes aforesaid as was destined to foreign ports, and, when necessary, in cases where the said shipments required local warehousing in the city of New York, the plaintiff has deposited the same in warehouses owned by others in the city of New York, and on Staten Island and elsewhere; and such foreign steamship lines and • warehousemen have hitherto always promptly received such shipments or deposits, and have assumed without objection the legal obligations resulting therefrom, and have thereby relieved this plaintiff from the same, and from all further duty or expenses connected with such shipments or deposits. During all such time the plaintiff has obtained without difficulty, all the men needed for the conduct of the business last aforesaid, and upon terms as to wages or payment for such labor which were just and satisfactory. VI. All of the foregoing facts were and are generally and publicly known, and were and are known to the defendants severally. VII. No one of the said defendants has ever been in any manner employed by the said plaintiff, nor had nor have they, or either of them, any lawful right to intermeddle therewith, or to undertake to control the same or the beneficial use and enjoyment by it of its estate and property aforesaid and for the purposes and uses aforesaid. VIII. Heretofore, and in or about the month of December, 1886, the defendants above-named formed and entered into an unlawful union, combination, or scheme, in the nature of a conspiracy, with the intent and purpose to deprive and hinder this plaintiff, and its duly constituted officers and agents, from following and exercising the plaintiff’s said trade, business and occupation of common carriers ; to lessen its property and estate by rendering the same unavailable and worthless to this plaintiff for any and all practical or beneficial use or enjoyment; to deprive the plaintiff’s workmen atid the public generally dealing with the plaintiff of the free exercise of their own will by threats, intimidation, obstruction and molestation; to wilfully and unlawfully injure the plaintiff in its said trade, business, and property, to its great pecuniary damage; to disturb, threaten, molest, and vex persons dealing or contracting with the plaintiff so as to induce and procure them to break and refuse to carry out and perform their contracts, and to refuse to deal with it as heretofore and with the public; and generally to boycott this plaintiff in its said trade or occupation of common carriers, drive it out of the market, and render it impossible for this plaintiff to run its said line of steamers at remunerative rates. IX. To that end, and in pursuance of the said unlawful union, combination and scheme, in the nature of a conspiracy as aforesaid, the said defendants, as the plaintiff is informed and believes, unlawfully and needlessly created, or assisted in creating, or caused to be created, a spirit of discontent and dissatisfaction among the men so employed by it, and which resulted in the abandonment on the 3d day of January, 1887, by said men of their said employment, and bnt few of said men have since returned to or are now in the employment of the said plaintiff; and did also, in furtherance of said unlawful union, combination, and scheme, and for a like purpose, send their emissary, and who was styled in the parlance of the said union, combination, and scheme “a walking delegate,” to one of said Southern ports to create a like spirit of discontent and dissatisfaction among the men so employed- by this plaintiff at such ports, and who were chiefly negroes, and did so temporarily create the same, and the said negroes did thereupon temporarily withdraw from the employment of this plaintiff at such port. X. 'jeThe said defendants have styled or have caused themselves to be styled an “Executive Board,” a^d as such, and in furtherance of their said unlawful union, combination, and scheme aforesaid, and in aid and furtherance of their unlawful intent and purpose, did unlawfully, wilfully, and needlessly give both oral and written notice to the agents and representatives of said foreign steamship companies in the city of New York, and to various warehousemen in the city of New York, on Staten Island, and elsewhere, not to receive on board the steamships of said companies, or within said warehouses, any cotton, goods, wares, or merchandise delivered or offered for delivery by tlio said plaintiff, or which liad been brought by it to the port of New York as aforesaid in its steamships and under said through bills of lading, and which said notices, with one exception, were written in red ink and were many of them signed by the said defendants as such “Executive Board," or with the proper names of them or one of them; and did also send their said emissaries, or did themselves go, to such agents, representatives, and warehousemen, and instruct them not to receive, or handle, or permit to be loaded or warehoused any such cotton, goods, wares, and merchandise; and did then and there state to said agents, representatives, and warehousemen that such steamship companies and warehousemen would save cost and expense by not receiving such cotton, goods, wares and merchandise; and did also, by their said emissaries or in person, solicit those employed by this plaintiff, and by the said foreign steamship companies and warehousemen, to withdraw from their employment for the purpose of rendering the said plaintiff and said foreign steamship companies and warehousemen unable to further prosecute and conduct their business. XL The said unlawful union, combination, or scheme aforesaid of the said defendants, for the furtherance of the wilful and unlawful intent and purpose aforesaid still continues, and the said defendants are severally now daily engaged in continuing and repeating each and every of the acts hereinbefore stated, and with the intent and for the purpose hereinbefore averred, and publicly assert that they will continue the same from day to day; and the plaintiff prays leave to bring such further acts before this court by supplemental complaint or independent bill. XII. The aforesaid unlawful acts of the said defendants, and the wilful injury by them committed, have produced and are now producing great pecuniary injury to the property, estate, business and income of this plaintiff, and have compelled and required it to do what it otherwise would not have done, that is, have compelled and required it to employ extra watchmen and extra labor, and to incur and pay large sums therefor, and for towages, storages, and insurances, and for conducting telegraphic correspondence with shippers of goods and agents, and for extra steamships hired, and for the board of men hired, and for the transportation of men from one Southern port to another, and for extra crews on steamships, and for extra expenses in the conduct and management of its said lighters and steam-tugs, and by reason and account of delays in.the use thereof, and for procuring new laborers, and has diverted from the said steamships of the said plaintiff its customary and average trade, traffic, and custom, by reason of the fact that the said- unlawful union, combination, or scheme aforesaid of the said defendants and their said unlawful and wilful acts became and were of public notoriety, and have deterred and prevented shippers at said Southern ports from sending their freight, as they have hitherto done, by the steamships of this plaintiff, and for wages and expenses of unemployed labor and vessels, to the damage of this plaintiff in its property and estate to the sum of twenty thousand dollars. [MAJORITY — Brown, J.] Brown, J. This action was brought to recover $20,000 damages, alleged to have been sustained by the plaintiff through the unlawful action of the defendants in the recent strike of the ’longshoremen, and in their attempt to boycott the plaintiff in its business as a common carrier. The defendants are alleged ' to constitute or to style themselves an “Executive Board of the Ocean Association of the ’Longshoremen’s Union.” At the time of the commencement of the action they were arrested and held to bail under orders of arrest issued in conformity with the State practice. The defendants now move, upon the plaintiff’s papers only, to vacate the order of arrest, on the ground that the material facts charged are alleged on information and belief only, without a sufficient statement of the sources of information ;• and the facts stated do not make out a prima facie case; that it appears that the defendants were acting within their legal rights, and that the plaintiff’s loss, if any, is damnum absgue injuria; and that, at best, the plaintiff’s case is so doubtful that the order of arrest should not be sustained. I have carefully considered the elaborate arguments of counsel and examined the numerous authorities referred to. For lack of time I can only state my conclusions : 1. All the material averments are either stated positively or the source of information is sufficiently indicated. 2. The facts stated in the complaint and affidavit constitute a legal cause of action against all the defendants for the actual damages suffered for the following reasons: . (a.) The plaintiff was engaged in the legal calling of common carrier, owning vessels, lighters and other craft used in its business, in the employment of which numerous workmen were necessary, who, as the complaint avers, were employed “ upon terms as to wages which were just and satisfactory.” (5.) The defendants not being in the plaintiff’s employ, and without'any legal justification, so far as appears—a mere dispute about wages, the merits of which are not stated, not being any legal justification—procured plaintiff’s workmen in this city and in Southern ports to quit work in a body, for the purpose of inflicting injury and damage upon the plaintiff until it should aoeedeto the defendants’ demands, and pay the southern negroes the same wages as New York ’longshoremen, which the plaintiff was under no obligation to grant; and such procurement of workmen to quit work, being designed to inflict injury on the plaintiff, and not being justified, constituted in law amalicious and illegal interference with the plaintiff’s business, which is actionable. (<?.) After the plaintiff’s workmen, through the defendants’ procurement, had quit work, the defendants, for the further unlawful purpose of compelling the plaintiff to pay such a rate of wages as they might demand, declared a boycott of the plaintiff’s business and attempted to prevent the plaintiff from carrying on any business as common carrier, or from using or employing its vessels, lighters, &c., in that business, and endeavored to stop all the dealings of other persons with the plaintiff by sending threatening notices or messages to its various customers and patrons, and to the agents of various steamship lines, and to wharfingers and warehousemen usually dealing with the plaintiff, designed to intimidate them from having any dealings with it through threats of loss and expense in case they dealt with plaintiff by receiving, storing or transmitting its goods or otherwise; and various persons were deterred from dealing with the plaintiff in consequence of such intimidations, and refused to perform existing contracts and withheld their former customary business, greatly to the plaintiff’s damage. {d.) The acts last mentioned were not only illegal, rendering the defendants liable in damages, but also misdemeanors at common law as well as by Section 168 of the Penal Code of this State. (e.) Associations have no more right to inflict injury upon others than individuals have. All combinations and associations designed to coerce workmen to become members or to interfere with, obstruct, vex or annoy them in working or in obtaining work because they are not members, or in order to induce them to become members, or designed to prevent employers from making a just discrimination in the rate of wages paid to the skilful and to the unskilful, to the diligent and to the lazy, to the efficient and to the inefficient; and all associations designed to interfere with the perfect freedom of employers in the proper management and control of their lawful business, or to dictate in any particular the terms upon which their business shall be conducted by means of threats of injury or loss, by interference with their property or traffic, or with their lawful employment of other persons, or designed to abridge any of these rights, are pro tanto illegal combinations or associations ; and all acts done in furtherance of such intentions by such means and accompanied by damage are actionable. See Greenhood on Pub. Policy, 648, 653 ; People v. Fisher, 14 Wend., 9; Tarlton v. McGawley, Peake, *105; Rafael v. Verelst, 2 W. Black., 1055; Lumley v. Gye, 2 El. & Bl., 216; Bowen v. Hall, 2 Q. B. Div., 333, 337; Gregory v. Duke of Brunswick, 6 M. & G., 205 ; Gunter v. Astor, 4 J. B. Moore, 12; Queen v. Rollins, 17 Ad. & El. N. S., 671; Mogul Steamship Co. v. Macgregor, 15 Q. B. D., 476; Walker v. Cronin, 107 Mass., 555 ; Carew v. Rutherford, 106 Mass., 1; State v. Donaldson, 3 Vroom (32 N. J. Law), 151; Master Stevedore’s Ass’n v. Walsh, 2 Daly, 1,13; Johnston Harvester Co. v. Meinhardt, 9 Abb. N. C., 393 ; s. c., 61 How. Pr., 168; Slaughter House Cases, 16 Wall., 36, 116. 3. There is no such doubt concerning the plaintiff’s legal right as should debar it from the usual remedy. The motion to discharge from arrest is, therefore, denied.