Opinion
Argued June 6, 1933
Decided July 11, 1933
Appeal from the Supreme Court, Appellate Division, First Department.
Harold Stern for appellant.
Maximillian L. Blek for respondent.
Plaintiff was a member in good standing of a local union of the International Brotherhood of Electrical Workers and was fined and indefinitely suspended by the executive board of his union. In this action he has obtained judgment declaring void the imposition of the fine, reinstating him in his membership and awarding him the sum of $3,960 as damages for loss of wages due to his inability, without a working card from the union, to obtain employment. We agree that, except for the award of damages, the judgment is correct.
Plaintiff gave evidence that his suspension extended from February 21, 1931, to April 19, 1932, that without a union card he could not obtain employment and that during this continuance of sixty weeks the union rate of wages was $66 per week. From these facts he argues that he proved prima facie his right to a judgment for $3,960. He is entitled only to such compensatory damages as are shown to result from the illegal acts of defendant union. He may not be allowed to reap a profit from his misfortune and to secure a position superior to that of his fellows who retained their membership. We can take judicial notice of the fact that during the time of plaintiff's suspension, unemployment in all branches of industry throughout this country was widespread. Whether any considerable proportion of the other members of plaintiff's union were able to obtain work does not appear. We have no evidence from which the inference can be drawn that even with possession of a union card, plaintiff would have been so fortunate as to find employment during all or even any part of these sixty weeks. We are not told of the amount of his average earnings prior to his suspension. The lack of evidence in this record sharply contrasts with the proof in Polin v. Kaplan ( 257 N.Y. 277), where that plaintiff testified concerning his wages immediately preceding his expulsion and the fact that during his suspension most of the members of his union were employed all the time. The inferences permissible from the evidence in that case have no basis in the present record. Only speculation is warranted.
The judgments should be reversed and a new trial granted, with costs to the appellant. (See 262 N.Y. 636, 694.)
POUND, Ch. J., CRANE, LEHMAN, KELLOGG and CROUCH, JJ., concur; HUBBS, J., not sitting.
Judgments reversed, etc.