The action is in equity for injunctive relief and incidental damages. The injunction sought by the plaintiff would compel the defendant lighting company to install at his residence, those connecting facilities which will make gas and electricity available for domestic use. The plaintiff also seeks a temporary injunction against the defendant Trades Council restraining it from picketing the area surrounding his home in such a manner that employees of the lighting company are prevented from installing those services.
Our inquiry goes to the legal sufficiency of the plaintiff's complaint which has been successfully challenged by the respondent, Trades Council, upon the asserted grounds that a labor dispute is involved and that the complaint fails to conform with the provisions of section 876-a of the Civil Practice Act. There is also before us for review, by leave of the Appellate Division upon a certified question, an order of that court which reversed on the law an order of Special Term insofar as it granted plaintiff's motion for an injunction pendente lite. In those circumstances we may adopt as the factual basis for our decision the statement of facts alleged in the complaint and additional facts set forth in affidavits which were considered by Special Term and the Appellate Division in passing upon the plaintiff's right to a temporary injunction. (Florsheim ShoeStore Co. v. Shoe Salesmen's Union, 288 N.Y. 188, 192-193.)
The plaintiff purchased from William Levitt Sons, Inc., a dwelling house in the North Park section of Roslyn Heights, Nassau County. The house was designed for the use of gas as the heating element and electricity for illumination. After a certificate of occupancy had been issued to the plaintiff a formal application was made to the defendant Long Island Lighting Company — the only utility enfranchised to furnish gas and electric service for domestic use in Nassau County — to perform its statutory duty to connect its gas mains and electric lines with the plaintiff's house. (Transportation Corporations Law, §12). In its effort to comply with such demand the defendant lighting company directed its employees to install the connections for which application had been made. Meantime, however, a labor *Page 35 dispute had arisen between the plaintiff's grantor, William Levitt Sons, Inc., and the respondent Building and Construction Trades Council — an association of twenty-six local labor unions the members of which are engaged in building trades in Nassau and Suffolk counties. The cause of that dispute is that, as a builder and developer of suburban homes in various sections of Nassau County, including the North Park section of Roslyn Heights, William Levitt Sons, Inc., has refused to recognize the unions affiliated with the defendant council. At this point we note that neither the plaintiff nor the lighting company has any unity of interest with the disputants in that labor controversy. However, when the lighting company's employees were enroute to plaintiff's home and had reached the single entrance to the North Park section they were confronted by pickets who carried placards bearing the legend "Unfair to Building Trades — Mechanics of A.F. of L. Building Construction Trades Council of Nassau Suffolk Counties." Upon inquiry by the lighting company's employees whether they would be allowed to enter the section where plaintiff's house was located they were told that the pickets "had instructions not to allow any utilities to do any work whatsoever in the community known as North Park." The employees of the lighting company thereupon refused to cross the picket line and gave as the reason for such refusal that they were forbidden to do so by the constitution and by-laws of their own Local Union B-1049 International Brotherhood of Electrical Workers, A.F. of L. As a result of such picketing the defendant lighting company refused to install the connections which would have afforded plaintiff the gas and electric service which the company was under a statutory duty to furnish. The ground for such refusal by the lighting company was that its employees were members of Local Union B-1049, with which it had a contract governing labor conditions affecting such employees; that to have compelled its employees to cross the picket line, or to have employed others to do so in an effort to make the installations at plaintiff's house would have caused a strike by its entire body of employees and that such strike in turn would have deprived consumers of gas and electric service within its franchise area comprising large sections of Nassau and Suffolk Counties.
The motion by the defendant Trades Council to dismiss the complaint was denied at Special Term where a mandatory *Page 36 injunction issued directing the defendant lighting company to make the connecting installations for which formal application had been made. Special Term also enjoined the defendant Trades Council from picketing the area in which the plaintiff's house is located in such manner as to compel the employees of the defendant lighting company to cross a picket line in their effort to gain access to plaintiff's premises for the purpose of installing gas and electric service, or in such manner as will directly or indirectly result in preventing the lighting company from making such installations. Upon appeal by the defendant Trades Council to the Appellate Division the order of Special Term was reversed on the law; plaintiff's motion for a temporary injunction was denied and the motion by the defendant Trades Council to dismiss the complaint was granted. The Appellate Division has stated the basis of its decision to be that — "This case grows out of a labor dispute in which the disputants are the Building and Construction Trades Council of Nassau and Suffolk Counties, and William Levitt Sons, Inc., builders. Since section 876-a of the Civil Practice Act applies to `any case involving or growing out of a labor dispute,' plaintiff should have complied with the provisions of that section." (270 App. Div. 852. )
It is true that the picket line formed across the only entrance to the North Park section where plaintiff's premises are located was stationed at that point by the defendant Trades Council in the exercise of its right to conduct peaceful picketing as an incident to those rights which it asserts in the labor dispute in which it is engaged with William Levitt Sons, Inc. It is important to note, however, that the plaintiff pleads no grievance against the defendant Trades Council by reason of the activities of its pickets against William Levitt Sons, Inc.; nor does the temporary injunction granted by Special Term restrain such activities in any way.
The plaintiff's house was uninhabitable without gas to supply heat for domestic uses and electricity for like purposes. Lacking both heat and light the application was made which, except for interference by picketing done under the direction of the defendant Trades Council, would have brought about compliance by the defendant lighting company with its statutory duty to furnish gas and electricity. The grievance which the plaintiff pleads is that, although he is an entire stranger to the labor *Page 37 dispute — of which the picket line is an incident — the activity of that picket line has served, without fault on his part, to deprive him of gas and electric services in his home to which he is legally entitled and which the defendant lighting company is under a statutory duty to supply. In those circumstances we conclude that plaintiff's complaint and the affidavits before us state a case which is not one "involving or growing out of a labor dispute" and accordingly does not fall within the purview of section 876-a of the Civil Practice Act. (Goldfinger v.Feintuch, 276 N.Y. 281, 286; Canepa v. "John Doe", 277 N.Y. 52,54-55; American Guild of Musical Artists v. Petrillo,286 N.Y. 226, 231.)
Labor objectives there are which have gained the sanction of law in this State and in the nation. However, like all rights recognized by government ruled by justice under law, the statutory and common-law rights which labor unions have gained in support of their objectives are burdened with the duty of respect for those private rights of individuals which are not within the scope of the unions' prerogatives. We have said that "* * * picketing is for the purpose of promoting the lawful interests of a labor union in a labor dispute" (per LEHMAN, Ch. J. in People v. Muller, 286 N.Y. 281, 284). In the present case, however, the facts pleaded by the plaintiff, which we must accept as true, may be the subject of proof of conduct in a labor dispute by pickets posted by the defendant Trades Council which go beyond the limits of permissible interference with the private rights of the plaintiff who has no unity of interest with the disputants and whose pleading states that he has "no relationship to or concern with said dispute". In such a case equity may intervene. (See People v. Bellows, 281 N.Y. 67, 70-71; Busch JewelryCo. v. United Retail Employees' Union, 281 N.Y. 150, 155.)
Neither the plaintiff's complaint nor the temporary injunction granted by Special Term serves as a limitation upon speech. We are not confronted with that constitutional problem because neither the complaint nor the temporary injunction which the plaintiff seeks offends against constitutional guarantees of free speech. In this connection the Supreme Court of the United States, dealing with a kindred problem, has recently said "* * * recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power *Page 38 to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the Due Process Clause would compel the states to allow the disputants in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose." (Carpenters Union v. Ritter's Cafe,315 U.S. 722, 727-728.)
The vice of the defendant Trades Council's conduct upon which plaintiff rests his right to relief was not in the exercise of its right of free speech. (See Bakery Drivers Local v. Wohl,315 U.S. 769, 775.) In the complaint before us is the allegation that "said defendant unions acting singly and in concert have threatened defendant Lighting Company with a strike if said Lighting Company should cause said utilities to be installed. As a result of said picketing and threats, defendant Lighting Company has refrained from causing its employees to install said utilities, and has refused to make such installation." The conduct by the defendant Trades Council of which the plaintiff complains is the unlawful interference with performance by the defendant lighting company of its statutory duty to make available to plaintiff the electric and gas services to which he was legally entitled.
There remains for consideration the contention by the defendant Trades Council that the question presented by this appeal has become moot and that accordingly the appeal must be dismissed upon the ground that this court will not review abstract questions. The argument thus advanced fails to heed the fact that in addition to the injunctive relief sought by the plaintiff he demands compensatory damages. After setting forth in the complaint acts and omissions by the defendant of which he complains it is alleged that "plaintiff and his family have been unable to occupy said premises and will be unable to do so until said utilities have been installed." It is also alleged that "by reason of the premises, plaintiff expects that he will be subjected to substantial loss and damage as a result of the acts and omissions *Page 39 of the defendants, the exact amount of which damage is now unascertainable."
The assertion by the defendant Trades Council that the question presented by the appeal has become moot has as its basis the fact that after the decision herein by the Appellate Division which reversed the order of Special Term and dismissed the plaintiff's complaint, the defendant Trades Council withdrew the picket line posted at the single entrance to the North Park section where the plaintiff's premises are located. Thereafter, on or about May 4, 1946, the defendant lighting company made the installations which afforded gas and electric service to plaintiff's house to which he had acquired title on January 28, 1946. If, as the complaint states, the plaintiff took title on the latter date to the premises here involved, and if, despite formal application thereafter made to the defendant lighting company, the services of gas and electricity for domestic purposes were not made available at his home until May 4, 1946, proof of the lack of those services during the substantial intervening period of time under the conditions pleaded by the plaintiff may afford a legal basis for his demand for compensatory damages against both defendants. What was said in Nevins, Inc., v. Kasmach (279 N.Y. 323, 326) applies here with equal force: "Since the plaintiff rightfully invoked the jurisdiction of equity to apply for an injunction, the complaint must be sustained and plaintiff may have any incidental relief by way of damages or otherwise to which it may be entitled so that complete disposition of the controversy between the parties, arising in equity, may be obtained (McGean v. Metropolitan Electric Ry. Co., 133 N.Y. 9,16, 17; Sadlier v. City of New York, 185 N.Y. 408, 414, 415)." (See, also, Ferguson v. Village of Hamburg, 272 N.Y. 234,239; People ex rel. O'Connor v. Girvin, 227 N.Y. 392,397; Williams v. Montgomery, 148 N.Y. 519, 524-525.)
The judgment and order of the Appellate Division should be reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division. The question certified by the Appellate Division should be answered in the affirmative.
LOUGHRAN, Ch. J., and DYE, J., concur with DESMOND, J.; FULD, J., concurs in separate opinion; LEWIS, J., dissents in opinion in which CONWAY and THACHER, JJ., concur.
Judgment and order affirmed, etc. [See 296 N.Y. 851.] *Page 40