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Supreme Court, Special Term, New York CountyJan 6, 1939
170 Misc. 53 (N.Y. Misc. 1939)
170 Misc. 539 N.Y.S.2d 828

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January 6, 1939.

Gluckman Josephson, for the plaintiffs.

Harry Sacher, for the defendants.

Plaintiff conducts a small hosiery jobbing business at 97 Orchard street. Up to about the 1st of November, 1938, he employed a young man as an assistant. At that time a representative of defendant union called on him and demanded that his employee receive the union scale of wages. Plaintiff showed defendant's representative that if this were done the receipts of the business would give plaintiff a smaller return than that received by his employee who was an inexperienced helper. The effect of this appeal to reason was, as might have been anticipated, negligible. The parties reached the obvious conclusions at about the same time. Plaintiff decided that he would have to run his business without assistance and defendant decided to call a strike. It supplied a few pickets to assist the erstwhile employee in picketing plaintiff's premises. This action and the instant motion seek to enjoin the picketing. There has been no compliance with section 876-a of the Civil Practice Act. The question is whether any is required.

The section in question is limited to instances of labor disputes. There seems to be some confusion in the minds of the parties as to when a labor dispute exists in regard to a single employee. The rule is quite clear. The number of employees involved is of no significance. A labor dispute may exist regardless of whether the employer hires one worker or a great many. But there must be an employer. There can be no such dispute with a person who hires no one. ( Thompson v. Boekhout, 273 N.Y. 390.) In the case of a single employee where employer-employee relations are interrupted by differences, a labor dispute exists if the position continues, e.g., where another is hired or there is an intention to fill the place at a later time, perhaps when the dispute terminates. If there is the opposite intention, namely, to conduct activities without employees then there is no employer and no labor dispute. Which situation exists depends on the facts of the particular case.

The facts here amply sustain plaintiff's position. The motion is granted. Provisions as to bond can be provided for in the order which is to be settled on notice.

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