I feel compelled to dissent and to vote for affirmance, for the following reasons:
The plaintiff corporation conducts in the city of New York a large trucking business, owning and operating 340 horse trucks and 14 motor tracks. Its business consists mainly in trucking freight for its customers to and from the various railroad and steamship terminals in the city. The defendants are certain unincorporated labor unions and individual officers and members thereof, comprising various employees of certain common carriers, steamship companies, such as steamship clerks, checkers, scalemen, weighers, etc., engaged in handling such freight at the piers and docks of the city. The several unions involved have deliberately and formally resolved that their members shall not work with non-union men, and, therefore, shall refuse to handle merchandise brought to piers or called for thereat by drivers, chauffeurs or truckmen who are not members of the unions. Pursuant to such resolutions the defendants have refused to handle, in any way, freight with, to or for those of the plaintiff’s employees who are not members of the unions or of one of them. Plaintiff conducts its business upon what is commonly known as the “ open shop ” basis or plan, employing men without regard to *514their membership in any union. Many of its employees are not such members, while others are. For several days prior to the making of the motion defendants had persisted in such refusal to the' very great damage of the plaintiff, so much so that much of the freight tendered by it at the several piers was not received, and several of its customers, from fear of such condition, had withdrawn from plaintiff their patronage and others threatened to do so. No question upon the argument was made by defendants’ counsel but that the defendants intended to persist in such refusal, and in effect to compel plaintiff to reorganize its business and to conduct it upon the union basis. The action of the defendants is intentional and deliberate and defended here by their counsel as entirely rightful.
The effect of the order appealed from is not to compel any of the defendants to continue working in his present position in the employment of any given carrier, but only to compel him so long as he does continue in that position to deal therein with the non-union employees of the plaintiff the same as with the union employees of it, that is, to receive from them or deliver to them freight without regard to their being union or non-union men.
The question presented by this appeal is simply this: Can an employee of a common carrier, while acting as such, refuse to extend to any person accommodation, e. g., carriage of goods or persons, upon the same terms as are extended by the carrier to the public generally? It seems to me self-evident that he cannot so refuse. He may, if he so elect, decline to work for such an employer, but if he does work for him he must give the same service to all. It seems to me likewise plain that he, as well as the employer, is subject to the injunctive process of the court. I quite agree with the view presented to us upon the argument, that one of the defendants — for example, a freight receiving clerk — can no more refuse to receive freight from a non-union truck driver than if he were acting as a conductor of a street railroad car he could refuse to receive a fare from a non-union man, and refuse to admit such person to the car as passenger. It is a primary duty of any one engaged in the performance of such a public service to extend that service to all without *515discrimination. There is no precedent to the contrary. The proposition thus asserted appears to me to be elementary. It is not at all contrary to the doctrine of Bossert v. Dhuy (221 N. Y. 342), which merely sustains the right of union men to decline to work with or upon the product of nonunion laborers in private employment. The point here is that these defendants are undertaking, while choosing to render a public service, to discriminate in its performance against a certain class of people. That they may not do.
Therefore, the order appealed from should be affirmed, with ten dollars costs and disbursements.
Putnam, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.