and therefore the plaintiff was not entitled to judgment. The defendant at the trial admitted frankly that, save for this plea, he should account to the plaintiff. Although I think that the said contracts were illegal (section 280, Penal Code), yet I think that the judgment should be affirmed; for I am of opinion that the case should turn upon consideration of public policy, which subordinates the question which party may be benefited by the judgment, for benefit to either party is but incidental to the determination whether the public is better served. by our judgment. See 9 Cyc. 550, b. And yet, if the plaintiff benefit incidentally thereby, it but receives moneys which in justice and in equity are due to it; and, if the defendant benefit, he takes these moneys as his own. As Lord Mansfield observes in Holman v. Johnson, Cowper, 341:

"The objection sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say."

"But the very meaning of public policy is the interest of others than the parties, and that interest is not to be at the mercy of the defendant alone." Holmes, J., for the court in Beasley v. Texas & Pacific R. Co., 191 U. S. at page 498, 24 Sup. Ct. at page 166, 48 L. Ed. 274.

And, first, what is the nature of the offending of the plaintiff? It practiced law as a corporation. In the Matter of Co-operative Law Co., 198 N. Y. 479, 481, 92 N. E. 15, 32 L. R. A. (N. S.) 55, 139 Am. St. Rep. 839, 19 Ann. Cas. 879, when the court considered this statute it determined that its purpose and effect is to preserve an ancient and honorable profession "of the highest usefulness and standing," one which "involves the highest personal trust and confidence," from the inroads of a legal entity that could neither qualify for practice nor discharge such personal obligations of trust and confidence, and which, either acting as a middleman, so to speak, between client and attorney, might destroy the relation of client and attorney, or, with its aggregated power, might affect the individual independence of the bar.

[2, 3] That which the plaintiff did involved nothing immoral nor of turpitude; the doings were mala prohibita, not mala in se. Nor can we assert that the plaintiff set about brazenly to violate the statute, or to evade it, for it pleads with some plausibility and in apparent good faith the special provisions of chapter 769 of the Laws of 1896, incorporating a prior title and indemnity company, to which the plaintiff succeeded by merger. Nor can we say that the denial of the relief sought is in furtherance of any specific provision of the offended statute, by way of penalty or of punishment, for that statute prescribes an exclusive punishment-a matter of consideration that makes for the plaintiff. Pratt v. Short, 79 N. Y. at page 445, 35 Am. Rep. 531. [4, 5] On the other hand, let us consider the position of the defendant, if his plea prevail. Incident to a vindication of the statute invoked by him, he escapes an accounting for the moneys which in justice and in equity belong to the plaintiff-moneys which he received as a member of an ancient and an honorable profession, and one that involves the highest personal trust and confidence. Matter of

Co-operative Law Co., supra; Matter of Dunn, 205 N. Y. at page 401, 98 N. E. 914, Ann. Cas. 1913E, 536. True, the statute is not aimed at him directly, for he is an individual permitted to practice law. But in that practice he accepted a retainer from the plaintiff to perform the illegal contracts which the plaintiff had made with third persons. And in so far as he performed, he rendered himself particeps criminis. Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558-567, 23 Am. Rep. 190; section 27, Penal Law. And but for the protection of his plea, the outcome of such conduct might be larceny. Section 1290, Penal Code. I intend nothing personal; my comments would be applicable to any other member of the bar who had pleaded likewise. And I add that there is no criticism to be made upon the professional performance of his retainer: Aside from the incidental benefits to the litigants, judgment in this case makes more for the preservation of the profession from degradation, for the retention of public confidence in it, for the determent of other members of it.

It is said by the Supreme Court in Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, that it was hard to see how the statute enacted for the benefit of the soldier was rendered any more effective by leaving all of the moneys in the hands of Brooks, instead of requiring him to execute justice by an accounting, and so in this case it is equally hard to see how the statute in this case is rendered more effective by permitting an attorney and counselor of the court, who aided and abetted in violation of the statute, to go scot-free with the moneys of the plaintiff in his professional pocket.

[6-8] I am mindful that public policy rests upon the laws; that we cannot dispose of this case upon ethical principles, for which there is no support in Constitution, statute, or judicial decision. People v. Hawkins, 157 N. Y. 12, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736. But I am of opinion that there is authority for an affirmance. In Pratt v. Short, supra, the court, per Andrews, J., say:

"It is no doubt the general rule of law that no right of action can spring out of an illegal contract. And the rule that an illegal contract cannot be enforced applies as well to contracts malum prohibitum as to contracts malum in se. But it does not necessarily follow that all the consequences attending a contract, which is contrary to public morals, or founded on an immoral consideration, attend and affect a contract malum prohibitum merely. The law in the former case will not undertake to relieve parties from the position in which they have placed themselves, or to adjust the equities between them. But in the latter case, while the law will not enforce the prohibited contract, it will take notice of the circumstances, and, if justice and equity require a restoration of money or property received by either party thereunder, it will and in many cases has given relief. So also a prohibitory statute may itself point out the consequences of its violation, and if, on a consideration of the whole statute, it appears that the Legislature intended to define such consequences, and to exclude any other penalty or forfeiture than such as is declared in the statute itself, no other will be enforced, and if an action can be maintained on the transaction of which the prohibited transaction was a part, without sanctioning the illegality, such action will be entertained."

See, too, Story's Eq. Jur. (18th Ed.) 300.

The principle enunciated in Pratt v. Short has received frequent recognition. McBroom v. Scottish Mortgage & Land Investment Co., 153 U. S. 318-323, 14 Sup. Ct. 852, 38 L. Ed. 729; Dunn v. O'Connor, 25

App. Div. 73-77, 49 N. Y. Supp. 270; Ring v. L. I. Real Estate Exchange, 93 App. Div. 442, 87 N. Y. Supp. 682; First Nat. Bank v. Cornell, 8 App. Div. 427, 40 N. Y. Supp. 850; Rome Savings Bank v. Krug, 102 N. Y. 331–335, 6 N. E. 682; Bath Gas Light Co. v. Claffy, 151 N. Y. 24-37, 45 N. E. 390, 36 L. R. A. 664; Duval v. Wellman, 124 N. Y. at page 160, 26 N. E. 343; People v. Knapp, 147 App. Div. 436– 445, 132 N. Y. Supp. 747.

The plaintiff, for aught decided in this case, remains liable to the exclusive punishment prescribed by the statute. We affirm a judgment, not enforcing the prohibited contracts, but upon taking "notice of the circumstances," and in the belief that "justice and equity require a restoration of money" (Pratt v. Short, supra), and in consideration of public policy, in order to uphold the principle that a member of the bar cannot invoke a violation of law in which he participated, for the purpose of retaining moneys, received by him in his professional capacity, which he agreed another should have, and for which in justice and in equity he should account. Irwin v. Curie, 171 N. Y. at page 414, 64 N. E. 161, 58 L. R. A. 830. We cannot uphold him in his vindication of a law which he too broke, to the end that he should keep moneys which are not his own.

It must not be forgotten that the illegal contracts were those made between the plaintiff and third persons, that the plaintiff does not seek the enforcement of those contracts, nor can it be said that our disposition of this case even indirectly countenances contracts that are mala in se. And, in the language of Miller, J., in Brooks v. Martin, supra: "The transactions which were illegal have become accomplished facts, and cannot be affected by any action of the court in this case."

Further authority upon this point is found in Planters' Bank v. Union Bank, 16 Wall. 483-500, 21 L. Ed. 473, and cases cited.

There is a further ground upon which we may rest affirmance. The rule as to dealings between client and attorney is that which obtains between principal and agent. Brock v. Barnes, 40 Barb. 521-528, citing Story's Eq. Jur.; Sims v. Brown, 6 Thomp. & C. 5, affirmed 64 N. Y. 660. In Penn Mut. Life Ins. Co. v. Bradley, 66 Hun, 635, 21 N. Y. Supp. 876, it was decided that the defendants, having received money as the agents of the plaintiff, could not plead that the plaintiff was not authorized to do business within this state. This judgment was affirmed on the opinion below. Penn Mutual Ins. Co. v. Bradley, 142 N. Y. 660, 37 N. E. 569. See, too, Murray v. Vanderbilt, 39 Barb. 140-152; Brooks v. Martin, supra; Pointer v. Smith, 7 Heisk. (Tenn.) 137. The interlocutory judgment is affirmed, with costs.

CARR and PUTNAM, JJ., concur. THOMAS and STAPLETON, JJ., concur, upon the first ground stated in the opinion.

(89 Misc. Rep. 501)

AUBURN DRAYING CO. v. WARDELL et al.

(Supreme Court, Equity Term, Cayuga County. March 30, 1915.) INJUNCTION 104-PERSONAL RIGHTS-PEACEABLE BOYCOTT.

Plaintiff, a draying company, left its employés free to become union men, and did not refuse to treat with union labor, or discriminate against its union employés; but its manager refused to exert pressure on them to join a union, and part of them remained out of it, whereupon a central union, supported by local unions, declared plaintiff to be "unfair," and, without misstatement of facts, began a special peaceable boycott by notifying plaintiff's customers, contractors, meat cutters, bakers, etc., that their men would quit or strike if they continued to patronize plaintiff, and threatened a continuance of such boycott, in consequence of which plaintiff had to abandon a contract to haul material for a contractor, and lost other patronage. Penal Law (Consol. Laws, c. 40) § 580, provides that if two or more persons conspire (subdivision 5) to prevent another from exercising a lawful trade by threats or intimidation, or (subdivision 6) to commit any act injurious to trade or commerce, each of them shall be guilty of a misdemeanor. Held, that defendant's acts and threats violated the statute, and entitled plaintiff to an injunction against the enforcement of resolutions or orders of defendant unions requiring their members to quit the service of employers patronizing plaintiff, the giving of notices to such employés, or to the public, of an intention to quit, and any other attempt or threat to use their powers over their members to induce or compel plaintiff's patrons or the public generally to refrain from dealing with plaintiff, and to damages.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 177; Dec. Dig. 104.]

Action for an injunction and damages by the Auburn Draying Company against William Wardell, individually and as business agent, etc., Frank S. Tippett, individually and as secretary, etc., and George Reichnecker, individually and as president, etc., and others. Permanent injunction granted.

Walter Gordon Merritt, of New York City, and George B. Turner and John Taber, both of Auburn, for plaintiff.

Frederick A. Mohr, of Auburn, and Frank Hopkins, of Syracuse, for defendants.

SUTHERLAND, J. This action is brought to restrain the prosecution of a boycott declared against plaintiff's business, and for damages sustained.

The plaintiff, when the trouble arose, was the leading concern engaged in the trucking business in the city of Auburn, and had many regular patrons engaged in trade and commerce in that city, who had customarily employed the plaintiff, and were pleased with the service rendered, and were disposed to continue their patronage. The normal commercial life of that city was so related by habit and usage to the business of plaintiff as a going concern that to summarily suppress its participation in the transportation of commodities would not only destroy the business of the plaintiff, but would, at the same time, work an appreciable injury to the trade and commerce of that community.

Harmonious relations had always existed between the plaintiff and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

its employés, from 30 to 45 in number. They had been free to become union men or not, as they chose, so far as plaintiff was concerned, and they did not join in any movement or agitation against the plaintiff. As a whole they were apparently satisfied with the terms and conditions of their employment. The agitation was started by persons not related in any way to plaintiff's working force, who represented the Teamsters' Union and the Central Labor Union, and endeavored unsuccessfully to persuade plaintiff's employés to join the local Teamsters' Union, which was organized in November, 1912. These representatives and their organizations appear to have taken offense because, when the men did not come in voluntarily in response to such effort, the plaintiff, when requested by the labor leaders to advise or compel its men to join, declined so to do.

Thereupon a thoroughgoing boycott was organized by the leading men in labor union circles in Auburn against the plaintiff. The initial action by the unions, as such, was taken by the Teamsters' Union, which passed a resolution at a meeting in July, 1913, declaring the Auburn Draying Company to be "unfair." Two lumber companies were placed on the unfair list at the same time, but they do not seem to have figured extensively in the propaganda which followed. The Central Labor Union then took the matter up, and after unsuccessful negotiations with plaintiff the declaration of unfairness was approved by the Central organization, and action was also taken by the meat cutters and bakers and other local organizations sustaining the attitude of the Teamsters' Union and the Central Labor Union toward the plaintiff, and a systematic, concerted campaign was undertaken to compel plaintiff's customers to stop patronizing plaintiff by threatening to call strikes among their own men if such patronage were continued.

Union labor in Auburn was efficiently organized, in the sense that the various local unions were bound together through their representatives in the Central Labor Union, which was nominally an advisory body but in fact exercised a direction and control which made the entire union movement cohesive, well-disciplined, and powerful for any purpose for which such a movement may be utilized. Disobedience by their members to the orders of the local unions could be punished by fine or expulsion, and disobedience to the directions of the Central Labor Union on the part of a local union could be punished by its excommunication from the central body. When employed for legitimate ends, great good would result from such extensive and efficient co-operation; but in this particular case, when the energies of the entire organization were directed against the plaintiff in an effort to drive away its customers, the result was certain to be disastrous to the plaintiff, just as it was intended to be by the promoters of the boycott.

Plaintiff's customers were notified that the plaintiff was on the unfair list, and were told that the union men in the employ of said customers would quit if the customers continued to patronize the plaintiff. A contractor erecting a theater had employed plaintiff to haul the iron work from the railway station to the place where the building was going up, and derricks and hoisting apparatus had been placed