Schlesinger v. Quinto

Dowling, J. (dissenting):

I dissent from the affirmance of this order upon the following grounds:

(1) The plaintiffs have not made out a sufficient case for the granting of a preliminary injunction; practically every important allegation made by them is controverted by defendants, and they are, therefore, not entitled to temporary relief which not only grants them all they ask by their prayer for judgment, but even more. Injunctions which give all that could follow a trial of the issues should be granted only in cases of real necessity.

(2) Even upon the plaintiffs’ proofs, a doubt exists as to their right to temporary relief.

(3) The court will seldom grant an injunction pendente lite unless the plaintiff’s rights are so clear that a denial of the right would be either captious or unconscionable; in the case at bar, the plaintiffs’ rights to relief, either temporary or permanent, are far from clear.

*501(4) There is no mutuality of remedy under the conditions disclosed by the record. The defendants could not compel the performance by court order of the covenants made by the employees.

(5) Contracts for the rendition of personal services will not be enforced by mandatory injunction. Injunctive relief to prevent the rendition of services for others in violation of a contract will only be granted where the services are unique and extraordinary. In all other cases the remedy is not in equity but by a suit for damages.

(6) It is sought by the injunction to enforce an agreement between the parties, the very existence of which at the time of bringing the action is denied, an agreement which had been violated or treated as abandoned by both parties thereto, and the responsibility for the breach of which is open to serious doubt, if indeed both did not equally break and disregard it. Certainly plaintiffs have failed to show that they were without fault in the situation which has arisen.

(7) The plaintiffs admit in their complaint that they have been conducting a strike against their employers; upon all the proofs presented, they do not come into court with clean hands.

(8) Plaintiffs have an adequate remedy at law.

(9) The general rule is that an injunction will not lie to compel an employer to refrain from breaking his contract with his employee, even though such action is a direct violation of the contract; the remedy of the employee at law for damages is adequate and complete. (See Schwartz v. Wayne Circuit Judge, 217 Mich. 384; sub nom. Schwartz v. Driscoll, 186 N. W. Rep. 522.)

(10) If power is to be given to the courts to interfere in industrial disputes, to determine the responsibility for their existenee and to declare who is in the right therein, as well as to enforce performance of contracts for services by mandatory injunction against either employers or employees, the grant of such power should be by legislative action alone. The wisdom of such a grant of power has heretofore been vigorously denied, particularly by the representatives of the employed, who have earnestly protested against any power being given to the courts to compel workmen to perform any specific kind of service, as abrogating guaranteed rights.

Order affirmed, with ten dollars costs and disbursements.