But under what conditions is such act in their interest? In recognizing the right to strike with the intent to procure the discharge of employees, it has been well said: "It is their right to strike, if need be, in order to secure any lawful benefit to the a statute against "conspiring or agreeing together with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business, or employment or property of another." Here, however, it did not appear that there was any contract of employment for any definite period. Compare, however, Connell v. Stalker, 20 Misc. 423; 45 N. Y. Suppl. 1048 (N. Y. City Ct., 1897); affirmed in 21 Misc. 609; 48 N. Y. Suppl. 77 (1897). So in Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 128; 38 Am. Dec. 346, 354 (1842), it was held not unlawful for employees to "form themselves into a society and agree not to work for any person who should employ any journeyman or other person not a member of such society, after notice given him to discharge such workman." The court, however, interpreted such agreement as not applying to the discharge of a person "engaged by contract for a certain time, in violation of such contract." Commonwealth v. Hunt was, in State v. Donaldson, 32 N. J. Law, 151, 157; 90 Am. Dec. 649, 653 (1867) (see § 60), distinguished on what seems to us to be the unsubstantial ground, that the agreement to quit employment was in the form of a regulation of the society, and not specifically directed against any particular individual, or, to use the language of the court: "The force of this association was not concentrated with a view to be exerted to oppress any individual." Com monwealth V. Hunt was distinguished on the same ground in Crump v. Commonwealth, 84 Va. 927, 943; 6 S. E. 620, 629; 10 Am. St. Rep. 895, 909 (1888). The right to strike with intent to procure the discharge of an einployee was also recognized in Clemmitt v. Watson, 14 Ind. App. 38; 42 N. E. 367 (1895). See also Perrault v. Gauthier, 28 Canada Supm. Ct. 241 (1898); Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 761; 53 Atl. 230, 231 (1902); Reform Club of Masons & Plasterers, etc., v. Laborers' Union Protective Soc., 29 Misc. 247; 60 N. Y. Suppl. 388 (Supm. Ct., Sp. T., 1899). In view of Quinn v. Leathem, App. Cas. (1901) 495, Allen v. Flood, App. Cas. (1898) 1, can no longer be regarded as authority to sustain the right to strike or announce one's intention to strike for the purpose of procuring the discharge of an employee. There a "delegate" of a labor union was held not liable for procuring the discharge of day laborers (with a promise not to employ them again), by stating to the employers that members of the union in their employ would quit employment unless such laborers were discharged. They had become offensive to ironworkers who were not only members of the union, but also their fellowemployees, by reason of having, though shipwrights, previously worked for certain employers on "ironwork." The decision proceeded on the express supposition that several members of the organization, as for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organiza this was not a case of breach of contract, but merely of discharge from employment. See elaborate analysis of decision in 1 Mich. Law Rev. 28 (1902-3) by H. L. Wilgus; article in 14 Law Quart. Rev. 129 (1898) by F. Pollock. Allen v. Flood was thus distinguished in Quinn v. Leathem (p. 506; see also p. 532). "The defendant neither uttered nor carried into effect any threat at all; he simply warned the plaintiff's employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade union official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the decision that there was no case of conspiracy or even combination. What was alleged to be done was only the independent and single action of the defendant actuated in what he did by the desire to express his own views in favor of his fellow-members." See editorial note in 18 Law Quart. Rev. 1 (1902). See elaborate discussion of effect of Allen v. Flood and Quinn v. Leathem in Booth v. Burgess, 65 Atl. 226, 234 (Ct. Ch. N. J., 1906); Brennan v. United Hatters of North America, 73 N. J. Law, 728, 746; 65 Atl. 165, 172; 9 L. R. A. N. S. 254, 262 (1906). Compare § 62, as to whether a boycott is illegal because of intent to procure discharge of employee. In Pickett v. Walsh, 192 Mass. 572; 78 N. E. 753; 6 L. R. A. N. S. 1067; 116 Am. St. Rep. 272 (1906), persons engaged in the trade of brick and stone "pointing" were denied relief against a strike by bricklayers and stone masons for the purpose of themselves obtaining such work of pointing, or as said by the court, "to put it more accurately, a combination by the defendants, who are bricklayers and masons, to refuse to lay bricks and stone where the pointing of them is given to others" (192 Mass. 583; 78 N. E. 758; 6 L. R. A. N. S. 1078). It was also said: "The case is one of competition between the defendant unions and the individual plaintiffs for the work of pointing. . . The right which the defendant unions claim to exercise in carrying their point in the course of this competition is a trade advantage, namely, that they have labor which the contractors want, or if you please, cannot get elsewhere; and they insist upon using this trade advantage to get additional work, namely, the work of pointing the bricks and stones which they lay. It was within the rights of these unions to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid." It was also said (192 Mass. 585; tion who may be out of employment, although the effect will be to cause the discharge of other employees who are not members. And whenever the courts can see that a refusal of members of an organization to work with non-members may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice and to inflict injury upon such non-members." 39 § 61. Inducing refusal to deal.-In the view already taken there is nothing illegal in merely inducing refusal to deal. But it has been seen that some special relation is generally regarded as necessary for the purpose of justifying such inducing, at any rate, when the act of inducing is that of a combination as distinguished from a mere individual, and committed with malice. 78 N. E. 759; 6 L. R. A. N. S. 1079): "We cannot say on the evidence that pointing is something foreign to the work of a bricklayer or a stone mason, and therefore something which a union of bricklayers and stone masons have no right to compete for or insist upon." So held, though the contractors preferred to give the work to the pointers, it being to their advantage to do so, and though the result was disastrous to the pointers, who could not lay brick or stone. A protest of the defendant unions against the plaintiffs being allowed to organize a pointers' union was said to be "not an act of oppression," it not appearing that such unions were unwilling to admit the plaintiffs to membership, if qualified as bricklayers or stone masons. See discussion of Pickett v. Walsh, with other decisions in article in 42 Am. Law Rev. 706 (1908) by A. M. Brown. 39 National Protective Assoc. v. Cumming, 170 N. Y. 315; 63 N. E. 369; 58 L. R. A. 135; 88 Am. St. In It seems clear enough that the relation of employee is sufficient § 62. Boycott by employee.—In the view already taken there is nothing illegal in a boycott, apart from acts of violence or acts producing fear of violence. A fortiori is this the case if the boycott is merely the natural incident or outgrowth of some lawful relation. But it has also been seen that there has rather extensively prevailed the doctrine that a boycott is inherently illegal even apart from violence. In this view a boycott is not justified even by the circumstance of it being the natural incident or outgrowth of the relation of employee. Hence, as in case of a boycott by a trade competitor,11 have resulted two apparently irreconcilable classes of decisions; one sustaining the legality of a boycott as an incident or outgrowth of such relation,42 the other holding a boycott inherently illegal, 40 See, however, as to boycott by employee, §§ 62 et seq. As to inducing to discharge from employment, see §§ 71, 72; inducing to refuse to enter or continue in employment, §§ 65 et seq. 41 See § 34. 42 On the general question of the legality of boycotts, see § 25. In harmony with the view stated in the text seems Parkinson v. Building Trades Council, 98 Pac. 1027 (Supm. Ct. Cal., 1908), where an employer was denied relief against a boycott instituted to secure enforcement of a rule prohibiting members of unions from working with non-union men, and from handling or using material supplied by a dealer declared "unfair" because of his having employed non-union men. Such rule had been adopted before there was any controversy with the employer and without any special reference to it. As a result of notices sent to contractors employing union labor, that the employer had been placed on an "unfair" list, and that union men could not work for or handle any material furnished by it, its union employees quit their employment and contractors purchasing from it ceased to do so. With reference to the word "unfair" as thus used, it was said (98 Pac. 1032): "Such declaration means, and in this instance was understood .. to mean, that it (the employer) had refused to comply with the conditions upon which union men would consent to remain in its employ or handle material supplied by it." In Sinsheimer v. United Garment Workers, 77 Hun, 215; 28 N. Y. Suppl. 321 (1894), where a controversy was in existence between a combination of employers and one of employees, an injunction against the issuance by such employees of circulars requesting the customers of certain members of the combination of employers not to deal with them was refused, there being no proof irrespective of the existence of such relation.43 The former of "violence, injury to property, threats or intimidation." The court said: "At best the circulars were but one of the instruments used by the defendants in their contest with the association of which the plaintiffs were members." To similar effect, Cohen v. United Garment Workers, 35 Misc. 748; 72 N. Y. Suppl. 341 (Supm. Ct., Sp. T., 1901); Butterick Publishing Co. v. Typographical Union No. 6, 50 Misc. 1; 100 N. Y. Suppl. 292 (Supm. Ct., Sp. T., 1906). See, under N. Y. Penal Code, § 168, subd. 5, People v. Radt, 15 N. Y. Crim. R. 174; 71 N. Y. Suppl. 846 (N. Y. Gen. Sess., 1900). The court in Sinsheimer v. United Garment Workers, broadly declared the right of the defendants "to endeavor to persuade those who had been accustomed to deal with" members of the association (to which the plaintiffs belonged) to discontinue their trade. The decision seems, however, to mainly rest on the fact that the plaintiffs did not come into court "with clean hands," being members of a combination of employers who had employed methods similar to those that they now complained of. Compare, as to methods adopted by way of retaliation, Barr v. Essex Trades Council, 53 N. J. Eq. 101, 125; 30 Atl. 881, 890 (1894). The decision in Sinsheimer v. United Garment Workers was a reversal of 5 Misc. 448; 26 N. Y. Suppl. 152 (1893), holding that "it was clear that it was an unlawful injury to plaintiffs' property to send circulars to their customers which would tend to induce such customers to discontinue business with the plaintiff." 43 In Quinn v. Leathem, App. Cas. (1901) 495, an action by an employer against members of a labor union was sustained on the basis of a finding of "maliciously conspiring to induce" a customer of the employer not to deal with him, such customer being thus induced not to deal with him. It was said by Lord Lindley (p. 536), that what the defendants did was "to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some nonunion men in his employ." Neither the employer nor any of his employees was a member of the union, though he was willing to have them join and had even requested to have them admitted as members. There was no dispute between him and them. The object of the boycott was to procure their discharge. On principle the boycott seems to us to have been justifiable as promoting a purpose to secure employment for members of the union exclusively, especially in view of a rule of the union making it "the duty of all members to assist their fellow-unionists to obtain employment in preference to non-society men" (p. 495). It was here said: "It cannot be it was not even suggested that these acts were done in furtherance of any of the lawful objects of the association as set forth in their registered rules according to the statutory requirement, or in support of any lawful right of the association or any member of it, or to obtain or maintain fair hours of labor or fair wages, or to promote a good understanding between employers and employed and workman and workman, or for the |