plaintiff's merchandise; that the defendant carriers have refused and agreed to refuse to transport plaintiff's merchandise, and have broken their contracts for such transportation, and that it is generally advertised that these things have happened, and that plaintiff's goods are untransportable.

It is charged in the complaint that the plaintiff and certain other lumber dealers suffered a strike of its teamsters, chauffeurs, and lumber handlers in January, 1920, which strike was called respectively by Truck Drivers' and Chauffeurs' Local 807 and the Lumber Handlers' Union No. 17122. The strike was for the closed shop and union conditions, which the plaintiff was unwilling to grant. Since the strike it is impossible for the plaintiff to secure any union truckmen to work for it, or to handle its material when employed by anybody else, until such time as it will consent to the closed shop and union regulations. The plaintiff reorganized its force and proceeded to do business as usual, but the Lumber Handlers' Union and Truck Drivers' Union No. 807 made arrangements with Steamship Clerks' Union and the Transportation Trades Council, whereby the merchandise delivered by the plaintiff, whether plaintiff was acting as shipper or whether the purchaser was acting as shipper, would not be received at the piers and transported, until such time as the plaintiff unionized its truckmen and lumber handlers and proceeded to do business under union conditions.

The plaintiff's affidavits submitted herein set forth many specific instances of the refusal of the employés of the common carriers to carry out their contracts or to transport plaintiff's merchandise and their threats of strike to the carriers if the carriers attempt to transport such merchandise; the refusal of the carriers to carry out their contracts for the transportation of said merchandise, and to furnish space in the future for its transportation, whether offered by the plaintiff as shipper or by the plaintiff's customer as shipper; and the general understanding upon the part of the carriers that such merchandise will not be accepted. And in six cases of refusal to accept and transport the merchandise, the space had already been contracted for, and there was a refusal to carry out the contract, and an inducement by the employés to cause a breach of said contract, and that transportation is refused to plaintiff as a shipper; that it appears a representative of a union defendant, Clerks' Local No. 975, delivered in each instance to a steamship line defendant or its agent at the pier a list of concerns whose lumber should not be handled, which included the name of the plaintiff. Defendants refused to accept the lumber of plaintiff for fear of a strike. by the checkers and longshoremen, which would prevent the ship's sailing. Orders had been issued by the defendant, the Transportation. Trades Council, to refuse all lumber delivered by plaintiff through nonunion truckmen; that lumber offered by delivery to steamship lines. where space had been secured was refused. Steamship lines would refuse to sell space to this plaintiff and subsequently sell it to other shippers; in short, that no more of plaintiff's lumber would be handled by any of the steamship lines until the difficulties were adjusted between. the plaintiff and the unions.

(184 N.Y.S.)

The moving papers herein show that all of the parties are engaged in a combination having for its object the exclusion of plaintiff's merchandise from transportation by defendant carriers, both where plaintiff is the shipper and where its customers are the shippers. The continuance of this condition makes it impossible for plaintiff to carry on export trade in any form. If combinations of this character are lawful, then it is impossible for any trucking to be done in New York City and vicinity except on terms that the Truckmen's Union permits, and it becomes entirely practicable for the Truckmen's Union to decide what merchandise it will haul and what merchandise it will not, haul. The affidavits of the union defendants generally admit the specific acts charged and assert their legality. The affidavit of defendant Joseph Ryan, vice president of the International Longshoremen's Union and Secretary of Local 791, states that the Transportation Trades Council. is composed of checkers, clerks, foremen, lighter captains, coal handlers, scalemen, and weighers, and it is generally admitted that it includes the truckmen and chauffeurs. This Trades Council adopted unanimously the following policy:

"None of the members would handle any nonunion goods or any goods transported in any way by firms, corporations, or individuals, who refused to employ union labor or refuse to enter into a contract to transport their goods under union terms."

The affidavit of James T. Hennessey, business agent of Local 874, Commercial Checkers' Union, states the policy of the affiliated unions as follows:

"That no union member should thereafter work with any nonunion labor and that they should not handle the products of any nonunion labor and should not assist in the transportation of any goods which was to be forwarded by any firms, individual, or corporation which either refused to employ union labor, or refused to enter into contract or agreement with the various unions represented by the Trades Council."

And it further states that:

"As transportation of goods throughout the city was distributed among various trade unions, all of whose work was a necessary link in said transportation, and as the interests were identical, that which hurt one would hurt all, and that which helped one would help all."

The affidavit of defendant George Campbell, business agent of Steamship Clerks' Union, Local No. 975, makes similar assertions, and admits he left lists of the unfair concerns at the piers of the defendant carriers.

This seems to me to be a combination to gain control over transportation, and to blockade the channels of trade against all but union merchandise, and against all concerns who do not make union contracts. Such a combination to exclude open shop merchandise from the channels of trade and commerce and from the markets of the nation is a conspiracy against public welfare, and deprives the public of their sovereign right of choice to purchase such goods as they want, because by artificial methods it keeps such goods out of the market. They will not permit any one but themselves to handle shipments.

The affidavits of the defendant carriers deny the statements to the

effect that lists of unfair lumber dealers were left at the piers while the union defendants admit such lists were left there, and that one union officer was suspended for failure to distribute this information in one instance. The United Port Service Company was shown to be an agency of Norton, Lilly & Co. and the Overseas Shipping Company was an agency employed by the United States Steel Products Company. These terminal agencies and facilities are expressly dealt with by the United States Shipping Act (39 Stat. 729), just as if they were common carriers. The representatives of those companies who declined to furnish service are clearly violating the law, and their employés who strike or threaten to strike to compel them to violate the law are clearly engaged in an illegal combination.

The affidavit of Thomas P. Alder for the United States Steel Products Company, says:

"I am informed and believe that if the Overseas Shipping Company should attempt to enforce any orders or regulations upon the checkers or stevedores employed by it, contrary to instructions of the unions to which these men belong such action would precipitate a strike, and would prevent the operation of these stevedores of the United States Steel Products Company to its great loss and to the detriment of the best interests of the general public."

It appears the carriers knew of the rule laid down by the employés and, so far as the papers go, have acquiesced in them without any protest. Common carriers owe an affirmative duty to perform impartial service and it is unlawful to subject plaintiff to undue prejudice. Their duties call upon them as common carriers to serve the plaintiff and not discriminate against it. If the carriers and their terminal agencies, instead of joining with the unions in this combination, by submitting to this discrimination for fear of a strike, had stood squarely for the performance of their public duties, it is doubtful if the plaintiff would now be in court. The carriers appeared to have aided, abetted and encouraged the unions by seeking to evade their duties to handle the plaintiff's goods without discrimination.

[3-6] The facts herein seem to present a conspiracy within this definition:

"A conspiracy is sufficiently described as a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose or some purpose not in itself criminal or unlawful, by criminal or unlawful means."

They show a combination to violate the positive provisions of the Shipping Act and the provisions of section 5440 of the Revised Statutes (U. S. Comp. St. § 10201). Under the terms of the United States Shipping Act, approved September 7, 1916 (39 Stat. at Large, 729), the purpose of which, among other things, is "to regulate carriers by water engaged in the foreign and interstate commerce of the United States," common carriers by water are clearly described to include the defendant carriers, and the term "other persons subject to this act," includes persons "carrying on the business of forwarding, or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water."

(184 N.Y.S.)

Section 14 of the Shipping Act provides:

"No common carrier by water shall directly or indirectly

"Third. Retaliate against any shipper by refusing, and threatening to refuse space accommodations when such are available, or resort to other discriminating or unfair methods, because such shipper has patronized any other carrier or has filed a complaint charging unfair treatment, or for any other reason.

"Fourth. Unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the loading and landing of freight in proper condition; or (c) the adjustment and settlement of claims. Any carrier who violates any provision of this section shall be guilty of a misdemeanor punishable by a fine of not more than $25,000 for each offense."

Section 16 provides:

"That it shall be unlawful for any common carrier by water, or other persons subject to this act" (meaning those operating docks, wharves, etc.,) "either alone or in conjunction with any other person, directly or indirectly. "First, * to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."

Section 17 provides:

"Every such carrier and every other person subject to this act shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property."

Section 32 provides:

"Whoever violates any provision of this act, except where a different penalty is provided, shall be guilty of a misdemeanor, punishable by fine of not to exceed $5,000."

Under the provisions of these statutes, it seems clear that a refusal on the part of the carriers to transport the plaintiff's merchandise, constitutes a violation of law and a crime, and that the defendant unions and officers are engaged in an unlawful conspiracy when they induce, aid and abet the carriers in committing this misdemeanor and threaten them with a strike unless they commit the misdemeanor:

A combination and conspiracy to bring about a violation of the federal statute is also a violation of section 5440 of the Revised Statutes of the United States, as amended by Act May 17, 1879, 21 Stat. 4, which provides as follows:

"If two or more persons conspire the United States

to commit any offense against and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment, in the discretion of the court."

The combination presented in this case is in violation of both the Shipping.Act and Revised Statutes (section 5440), and the plaintiff, being irreparably injured in its property rights by acts done in furtherance of such conspiracy, is entitled to an injunction. Toledo, A. A. & N. M. Ry, Co. v. Pennsylvania Co. (C. Č.) 54 Fed. 730, 736,

19 L. R. A. 387; United States v. Cassidy (D. C.) 67 Fed. 698; Waterhouse v. Comer (D. C.) 55 Fed. 149, 157, 19 L. R. A. 403; Stephens v. Ohio State Telephone. Co. (D. C.) 240 Fed. 759; Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & N. Ry. Co. (C. C.) 34 Fed. 481; Wabash R. Co. v. Hannahan (C. C.) 121 Fed. 563; Alaska S. S. Co. v. International Longshoremen's Ass'n (D. C.) 236 Fed. 964.

The case of Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. is indistinguishable. There the plaintiff railroad company secured an injunction against a connecting railroad company, its employés and servants, for refusing to handle freight delivered by the complainant on the ground that the complainant had a strike with its employés, and also an injunction against the head of the union from enforcing any order requiring such refusal. The injunction was upheld. Subsequently, one Lennon was held in contempt (same case, 54 Fed. 746), and his punishment for contempt for quitting work was sustained by the United States Supreme Court. Matter of Lennon, 166 U. S. 548,. 17 Sup. Ct. 658, 41 L. Ed. 1110. In the original case, Judge Taft says: "Any one, though not an officer or agent [of the carrier] successfully aiding, abetting or procuring such officer or agent to violate the section [of the Interstate Commerce Act] would be punishable under it as a principal. Again, for the men, in furtherance of rule 12, either to refuse to handle the freight or to threaten to quit, or actually to quit, in order to procure or induce the officers of the defendant companies to violate the provisions of the Interstate Commerce Law, would constitute acts in furtherance of the conspiracy, and would render them also liable to the penalty of the same section."

The unions and their officers who advise, aid, or abet in the scheme become principals with the carriers and are liable to prosecution under the statutes. United States v. Debs (C. C.) 64 Fed. 724, 764; United States v. Cassidy (D. C.) 67 Fed. 781.

"When doing the work of the corporation, they are made criminally liable for disobeying the commands of the law to the corporation." Toledo, A. A.

& N. M. Ry. v. Penn. Co. (C. C.) 54 Fed. 743, 19 L. R. A. 394.

Nor is it any excuse or defense for the carriers' refusal to per form their statutory duties that their employés are threatening to strike. Chicago, B. & Q. Ry. v. Burlington, C. R. & N. Ry., supra; Toledo, A. A. & N. M. Ry. v. Penn. Co., supra. The common-law obligation of the carriers to serve the public without discrimination is incontrovertible. Root v. Long Island R. R. Co., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 331, 11 Am. St. Rep. 643; Windsor v. N. Y. Central & H. R. R. R. Co., 82 Misc. Rep. 38, 143 N. Y. Supp. 645, affirmed 220 N. Y. 695, 116 N. E. 1084. It is an elemental duty for the carriers to transport and they cannot even discriminate against a group or an entire industry. Cheney Bros. v. Hines (C. C. A., 2d Circuit, March 29, 1920) 266 Fed. 310. The failure to perform that duty constitutes a tort. Pittsburgh Ry. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682; Michie, Carriers, 381.

"All who aid, command, advise, or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would be as if they had done the same