No labor dispute concerning wages, hours, health, safety, conditions of employment or rights of collective bargaining is involved in this action. The plaintiff’s opera company is a regular company in all respects, in that it carries a complete cast of singers, costumes and scenery. It also has a ballet and chorus. However, instead of using an orchestra, it uses recorded music which is produced by a specially-built recording machine. Plaintiff never employed musicians. They are not necessary in the plaintiff’s organization. It is contended that if it is compelled to employ them it cannot operate successfully. By the actions complained of, defendants are seeking to compel the plaintiff to employ musicians.
The defendants oppose the utilization of a mechanical device with the purpose of forcing the engagement of unnecessary labor. By availing itself of the invention referred to the plaintiff is able to give employment to a traveling company of more than fifty singers and artists who otherwise would be unemployed. Its productions also require a stage crew of six men, in addition to incidental local assistants. Through this enterprise many sections of the country which otherwise could not afford it would enjoy entertainment in the form of grand opera performances at reasonable prices. Defendants have taken the position that it is against their interest to permit the popularization of operatic music by mechanical reproduction. If the contention of the defendants be correct, all progress resulting from inventions must cease if it interferes with the employment of some individuals, even though it may afford employment and pleasure to thousands of other people.
The great industrial development of this country is, in large part, due to the practical application of inventions and technological improvements. The majority of labor-saving devices have created greater opportunities for labor through the opening of new fields of endeavor. In some instances, adoption of new machinery has compelled readjustments, but enlightened labor organizations have found means of meeting changing conditions without resorting to strikes to stop progress.
*527Our attention has been called to no case in this jurisdiction which directly involved the right of organized labor to prevent the use of machinery for the reason that it reduced the opportunities of employment of a particular group of labor. In Hopkins v. Oxley Stave Co. (83 Fed. 912 [C. C. A. 8th]) a boycott by a coopers’ union was enjoined. The object of the boycott was to compel the plaintiff to abandon the use of machines for hooping barrels, which materially lessened the cost of making the same, and which the union charged caused the unemployment of at least one hundred coopers. The court said: “ We think it is entirely clear, upon the authorities, that the conduct of which the defendants below were accused cannot be justified on the ground that the acts contemplated were legitimate and lawful means to prevent a possible future decline in wages, and to secure employment for a greater number of coopers. No decrease in the rate of wages had been threatened by the Oxley Stave Company, and, with one exception, the members of the combination were not in the employ of the plaintiff company. The members of the combination undertook to prescribe the manner in which the plaintiff company should manufacture barrels and casks, and to enforce obedience to its orders by a species of intimidation which is no less harmful than actual violence, and which usually ends in violence. The combination amounted, therefore, to a conspiracy to wrongfully deprive the plaintiff of its right to manage its business according to the dictates of its own judgment. Aside from the foregoing considerations, the fact cannot be overlooked that another object of the conspiracy was to deprive the public at large of the benefits to be derived from a labor-saving machine which seems to have been one of great utility. If a combination to that end is pronounced lawful, it follows, of course, that combinations may be organized for the purpose of preventing the use of harvesters, threshers, steam looms and printing presses, typesetting machines, sewing machines, and a thousand other inventions which have added immeasurably to the productive power of human labor, and the comfort and welfare of mankind. It results from these views that the injunction was properly awarded, and the order appealed from is accordingly affirmed.”
In the case of Barr v. Essex Trades Council (53 N. J. Eq. 101; 30 A. 881) it does not appear that the objection of the union to the use of the “ boiler plate ” was attributed to its effect on the employment of the union members. We find nothing in that case to support the conduct of the defendants here. What the vice-chancellor said with reference to the right of the union members to leave the employ of the paper is simply a reiteration of the theory *528of freedom of contract. He said: “ Certain members of Typographical Union No. 103, who were employees in his newspaper office, abandoned his employment. This they had a perfect right to do under the law. No man can be required to work for another unless he so desires, and it is his right, outside of contractual duties, to cease an employment which is distasteful to him, and, within the limit authorized by the statute of 1883, it is lawful for a number to combine to leave the service of their employer. If the defendants had stopped here, they would have been clearly within the exercise of their legal rights. But the members of the Typographical Union No. 103 were not content to stand on this right.”
The conduct of the defendants is sought to be justified on the theory that the endeavor to secure employment for their members is a legitimate activity of the unions. Not every effort of organized labor to secure employment is legal. In Thompson v. Boekhout (273 N. Y. 390) a union and its members were restrained from picketing and interfering with the business of the plaintiff, where it appeared that the plaintiff, the owner of a business, had taken over the duties of a former employee. The Court of Appeals said: “ Where the owner of a small business seeks to avoid ‘ labor disputes ’ as defined in the statute, by running his business without any employees, an attempt to induce or coerce him to hire an employee or employees, upon terms and conditions satisfactory to persons associated in such attempted inducement or coercion is not a ‘ labor dispute ’ within the letter or spirit of the statutory definition.”
In Welinsky v. Hillman (185 N. Y. Supp. 257) a union sought to compel a manufacturer to continue a manufacturing department of his business which he decided to discontinue. The court said: “ The purpose of the strike and of the picketing and other interference with plaintiff’s business is not to secure any advance in wages or any improvement in working conditions, but to induce the plaintiff to continue the manufacturing department of his establishment, which he has determined to abandon. Of course, the right of the employees in other departments of the business to cease work for this or any other reason cannot be questioned; but neither they, nor the other employees, nor the union to which they belong, can be permitted to take affirmative action injurious to the plaintiff’s business for the purpose of compelling him to continue a department of the business which he wishes to abandon. To hold otherwise would be to sanction coercion in support of a demand which the employees had no right to make. I am not insensible of the hardship to old employees thus suddenly thrown out of work, or of the loyalty of their fellow workers who seek to *529come to their rescue; but I see no justification under the law for their present attempt, or the attempt of their union to compel the plaintiff to continue their employment.”
In Paul v. Mencher (169 Misc. 657; affd., 254 App. Div. 851; motion for leave to appeal to the Court of Appeals denied, 279 N. Y. 813) a union was enjoined from picketing a retail fur shop and from interfering with its patrons where it appeared that the owner had discontinued his factory deliberately to avoid a labor dispute as a result of which a number of employees were discharged. The court at Special Term said: “ It is the prerogative of any business man, with or without reason, to continue or discontinue in business, to change, alter or modify the nature of his business as he sees fit without necessity of explanation or excuse to any one. When the plaintiff elected to discontinue his factory no one was privileged to complain even though it was done deliberately to avoid a labor dispute. It may be unfortunate and regrettable that because of such decision willing workers are rendered idle and unhappy. When the question of the legality of an act is alone involved, the law is indifferent to the result thereof. If plaintiff had the right to close down bis factory the fact that a number of people are foreclosed of employment cannot govern or limit the exercise of that right by him.”
The National Labor Relations Board recognizes the right of an employer to discharge employees because of change in type of machinery. (Matter of Uxbridge Worsted Co., — N. L. R. B.-, Case No. C - 131 - April 21, 1938.)
If an employer may not be coerced to engage employees for an owner-conducted, one-man business, where a department is discontinued, where a factory has been closed down, or where changes of machinery necessitate discharge, we know of no legal right which justifies the coercion of plaintiff to bring about reorganization of its business by the elimination of the mechanical device which makes that business possible, so as to compel the employment of instrumental musicians entirely unnecessary in plaintiff’s organization and whose compulsory employment means the death of plaintiff’s endeavor.
The judgment should be affirmed.