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Kinane v. Fay

Decided: October 25, 1933.

JOHN A. KINANE, PLAINTIFF-APPELLEE,
v.
JOSEPH S. FAY AND EDWARD SHINN, DEFENDANTS-APPELLANTS



On appeal from the East Orange District Court.

For the defendants-appellants, Kraemer, Siegler & Siegler.

For the plaintiff-appellee, Norbury C. Murray.

Before Justices Parker and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment, based on a jury verdict, in favor of the plaintiff-appellee, hereinafter called plaintiff, and against the defendants-appellants, hereinafter called defendants, in the sum of $400.

The record submitted discloses the following facts: The plaintiff was a member of twenty-six years' standing in Local No. 825, of the International Union of Operating Engineers, which is a voluntary association with headquarters in the city of Newark, New Jersey, and holds a charter from the International Union of Operating Engineers, which is likewise a voluntary association having its headquarters in Washington, D.C. Both organizations are known as "trade or labor unions." Joseph S. Fay was the president and Edward Shinn the business agent of said local.

The defendants, Fay and Shinn, by reason of their positions aforesaid, with the assistance of others, were able to prevent any member of the local from obtaining or retaining employment at his trade anywhere in the northern part of the State of New Jersey by the use of the so-called "O.K. system." On April 19th, 1932, plaintiff was hired by Daniel J. Cronin, Incorporated, to commence work for it on April 22d, 1932, on a certain building in Newark, New Jersey, known as the "Newark city garage." On April 19th, 1932, the plaintiff was three months in arrears for dues. Article 16 of the constitution of the union provided as follows:

"ARTICLE XVI.

Membership dues.

"Section 1. Members shall pay their dues up to date, and any member in arrears for three months shall not be considered in good standing. If in arrears for more than three months he shall be deemed in bad standing; and shall stand

suspended from all privileges of membership; including attendance at meetings but not expelled, and the local shall pay per capita tax to the general secretary-treasurer on such member, until the local notifies the general secretary-treasurer of his suspension. In order to reinstate himself in the local that suspended him, he shall pay up all arrearages and one month's dues in advance. When a member becomes reinstated the local reinstating said member, must remit back per capita tax to the general secretary-treasurer from the date of his suspension. Members suspended for non-payment of dues may be reinstated within thirty days after their suspension, by paying their arrearages and three month's dues in advance; failing in this, they may only be admitted in the manner similar to new members, except members who are more than one year in arrears for dues, and who have been suspended, must pay a year's back dues to the suspending local and a new initiation fee to the local in which they desire to be initiated. The local which suspended them must remit twelve month's back per capita tax to the general secretary-treasurer when this has been complied with. Fines, assessments, &c., shall be charged as dues if not paid within thirty days after notification. A suspended member may, on motion, be expelled by a vote of the suspending local union, but he remains a member until expelled."

On April 22d, 1932, plaintiff tendered dues for the months of January, February, March, April and May, and assessments, totaling $38. The acceptance of this sum would have reinstated the plaintiff in good standing. This was refused until April 29th, 1932. The defendant Fay participated in this refusal. In the meantime, i.e., between April 19th, 1932, and April 29th, 1932, defendants, in conjunction with others, illegally and without lawful justification conspired to prevent and succeeded in preventing the plaintiff from working for Daniel J. Cronin, Incorporated, between the dates of April 22d, 1932, and April 29th, 1932, by stating that the plaintiff was unfair to union labor, and threatening Daniel J. Cronin, Incorporated, that if it permitted the plaintiff to work for it at said employment the defendants would, in conjunction with certain other officials of other labor unions cause all of the

other workmen who were members of various labor unions, to stop work and strike. In other words, they threatened a general strike. Daniel J. Cronin, Incorporated, yielded to the pressure. Nor was this all. The testimony tended to justify the conclusion that the plaintiff was regarded by the defendants as persona non grata; he acted "so stubborn:" he had the temerity to obtain work for six weeks and four days out of twenty months without defendants' "order," meaning their "O.K. and permission." But maliciously, to rid the plaintiff of his standing in the local, a charge of slander was preferred against him. The gravamen of the charge was that the plaintiff made the following statement at the time of the refusal to accept his dues: "For going to work after you people keeping me on the street for twenty months with the exception of six weeks and four days." Plaintiff was never tried. He employed counsel and obtained equitable relief, to wit, an injunction which restrained the trial. All this, plus a great deal of additional testimony, showed at the end of plaintiff's case substantially the following:

(a) That the defendant Fay was "displeased" with plaintiff because the latter attempted to obtain work without the permission of Fay; (b) that it was necessary for anyone seeking employment to obtain the permission of the defendants, Fay and Shinn; (c) that the officers of the local (assistant secretary) refused to accept plaintiff's arrearages in dues, and defendant Fay participated in this refusal; (d) that plaintiff secured employment without obtaining the permission of the defendants, Fay and Shinn; (e) that the defendants, Fay and Shinn, preferred false charges of slander against the plaintiff because that was the only way of "getting" plaintiff, they being unable to do anything regarding plaintiff's working without an "O.K.;" (f) that the local had a monopoly of hoisting engineers in Newark and vicinity; (g) that the defendant Shinn, together with the business agents of other local unions, visited plaintiff's employer and threatened to call a general strike if said employer did not discharge plaintiff because the latter was said to be a member in bad standing in the local.

This was, of course, contradicted by the defendants. A

jury question was thus presented. The jury allowed plaintiff for loss sustained from April 22d, 1932, to April 29th, 1932, and counsel fee, and punitive damages for the balance. Twenty-two specifications ...


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