Opinion
June, 1933.
Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. We are of opinion that, upon the record before us, the findings that the defendants were attempting to accomplish unlawful purposes or that they were attempting to accomplish lawful purposes by unlawful means are not supported by the evidence. The primary purpose of the defendants was but to induce the employment of union teamsters, chauffeurs and helpers in the transportation of materials and supplies for use in the erection of buildings upon which union men were employed. Loading in the supply yards and unloading at the points of construction are included in the term "transportation" and the trial court correctly found that such work was a necessary part of the construction. ( Reardon, Inc., v. Caton, 189 App. Div. 501; Bossert v. Dhuy, 221 N.Y. 342; Nat. Protective Assn. v. Cumming, 170 id. 315.) (See, also, Exchange Bakery Restaurant, Inc., v. Rifkin, 245 N.Y. 260, and Stillwell Theatre, Inc., v. Kaplan, 259 id. 405.) The case of Auburn Draying Co. v. Wardell ( 227 N.Y. 1), relied upon by the respondents, turned upon a rule of law which has no application here, and that is that the right to make contracts for the purchase of labor of others and the sale of one's own labor is subject to the condition that its exercise in any particular transaction shall not be "inconsistent with the public interests or hurtful to the public order or detrimental to the common good." Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made. Lazansky, P.J., Hagarty, Carswell and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm on authority of Auburn Draying Co. v. Wardell ( 227 N.Y. 1). Settle order on notice. [ 135 Misc. 426.]