Lewis, Kolovsky and Halpern. The opinion of the court was delivered by Kolovsky, J.A.D.
In this action growing out of a labor dispute the court by its order of August 11, 1969 granted defendant union's motion for dismissal of the complaint and dissolved "the temporary injunction [t]heretofore issued."
Defendant thereafter sought an allowance of costs and counsel fees. Its application was denied by order entered November 3, 1969; hence this appeal.
It is now settled law that [ R. 4:53-7] incorporates the counsel fees provisions of section 53 [ N.J.S.A. 2A:15-53] of the Anti-Injunction Act into the court rules thereby providing for another category of cases in which allowance of counsel fees is authorized pursuant to [ R. 4:42-9]. Westinghouse Electric Corp. v. Local No. 449 , 23 N.J. 170 (1957).
This case holds that in cases falling within the overall scope of the Anti-Injunction Act and meeting the intendment of the requisites specified in section 53 thereof, i.e. , the injunctive relief preliminarily granted is subsequently denied or the order granting such relief is thereafter reversed on appeal, such determination being on the merits, the allowance of both costs and counsel fees is mandatory and not
merely discretionary. [ U.S. Pipe, etc. v. United Steelworkers of America , 37 N.J. 343, 356 (1962)]
The trial court ruled that its dismissal of the complaint and dissolution of the injunction was a determination on the merits and not one "merely reflecting a procedural defect." Nevertheless, it denied defendant's application for counsel fees because it concluded, for the reasons to be discussed later in this opinion, that the injunction which was dissolved -- that appearing in the order of July 31, 1969 -- was not a "court mandated restraining order or injunction" whose dissolution would entitle defendant to an award of counsel fees under N.J.S.A. 2A:15-53.
Defendant challenges the propriety of the latter ruling and contends that it should have been allowed the counsel fees requested, $3000. Plaintiff acknowledges the reasonableness of the amount applied for but argues that the denial of any allowance was proper, not only for the reason given by the court but also because, contrary to what the court ruled, the dismissal of the complaint did not result from a determination on the merits. (Plaintiff's notice of cross-appeal was filed only because it assumed, erroneously, that it was necessary for it to cross-appeal to preserve its latter contention. Appeals are taken only from adverse orders; here the order entered was in plaintiff's favor.)
Since "each case must be considered in its own peculiar setting," United States Pipe, supra , 37 N.J. at 363, we turn to a consideration of the facts of this case.
Plaintiff's employees were members of defendant union. The terms and conditions of their employment were provided for in a collective bargaining agreement whose term ran from November 7, 1966 to November 7, 1969. On or about June 30, 1969 the employees struck, allegedly because plaintiff had committed breaches of the agreement.
On July 30, 1969 plaintiff filed a complaint with supporting affidavits in the Chancery Division, charging defendant and its members with illegal mass picketing, intimidation
of employees who desired to enter plaintiff's plant, and sundry abusive and violent acts and conduct. Prayed for was an injunction restraining the picketing and the alleged unlawful conduct.
An order to show cause issued on the filing of the complaint, returnable the next day, July 31, ordering the union and its members to show cause why they should not be restrained in accordance with the prayers of the complaint.
On July 31 defendant appeared through counsel and submitted an affidavit denying the charges of unlawful conduct and asserting that strikebreakers employed by plaintiff not only had threatened employees who were picketing but also had committed acts of violence. Further, the affidavit detailed a number of respects in which plaintiff had allegedly breached its obligations under the collective bargaining agreement.
No testimony was taken on the return day of the order to show cause. Instead, after lengthy conferences between counsel and the Chancery Division judge, the order of July 31, 1969 was entered. That order, signed by the judge and "consented to as to form and entry" by the attorneys for plaintiff and defendant, recited that the court had "considered the Complaint, Affidavits annexed thereto, an Affidavit submitted on behalf of defendant, and presentation of counsel thereon"; that it appeared that each party had filed charges with the National Labor Relations Board alleging commission of unfair labor practices by the other but that the Board had not yet indicated whether it would accept jurisdiction; that both parties, by their affidavits, had alleged "serious and unlawful acts, ...