(188 N.Y.S.) thereof by the party himself after he left the employment of the plaintiff would not be a disclosure of any confidential information which he has obtained, nor would it be a use of any device to which any party is given any exclusive right by any letters patent. [2] Of course, as to those devices which were patentable, a different question would arise, and as to those the defendants do not seek to modify the judgment. As we read the decree entered herein, we think that a fair interpretation thereof would not preclude the defendants from using any device which was not patentable, by reason of lack of novelty, and which was not a secret device, because attached to an elevator in such a way that it was open to inspection and examination by any one interested to inspect the same. This interpretation is supported by the opinion of the learned justice who tried the case. With this interpretation of the decree the defendants do not need the relief for which they ask, and, with the right to make use of such devices as were not novel and were not concealed, the application was properly denied, and the order should be affirmed, with $10 costs and disbursements. All concur. COX et al. v. ROWNSON, DREW & CLYDESDALE. (Supreme Court, Appellate Term, First Department. April 28, 1921.) Sales 1(4)—Contract held not complete, where seller was to submit specifications later. Where a seller's letter, confirming a sale of 1,000 kegs of nails, stated that specifications for 200 kegs would be furnished later, and the buyer's reply, although stating that the 200 kegs were to be of the same general assortment as the other 800, also stated, "Specifications to be submitted by you from your warehouse stock," there was no sale of the 200 kegs, even though the buyer's letter was subsequently treated as constituting the contract, or a part of the contract. Appeal from Municipal Court, Borough of Manhattan, First District. Action by George W. Cox and another against Rownson, Drew & Clydesdale. From a judgment in favor of plaintiff, after a trial by a judge without a jury, defendant appeals. Reversed, and complaint dismissed. Argued March term, 1921, before BIJUR, WAGNER, and LYDON, JJ. Samuel M. Levy, of New York City, for appellant. BIJUR, J. The appeal involves solely a question of law. Plaintiffs have recovered damages for defendant's failure to deliver 200 kegs of nails out of 1,000 kegs covered by a contract claimed to have been expressed either in letters that passed between the parties or in those letters coupled with conversations preceding the same. The first letter For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes is dated September 20, 1919, from defendant, seller, to plaintiffs, purchasers, reading, so far as material: "Confirming our conversations of yesterday, we have entered your order for 1,000 kegs of wire nails, 800 of which are to be common wire nails as per attached specifications. We are getting in touch with our mill for the balance of 200 kegs which you require of the countersunk checkered head quality, and will advise you later what specifications we will be able to furnish on this material." On September 22d defendant wrote again, asking for a confirmation of the order, and adding: "As yet we have not heard from our mill, and are therefore not in a position to advise you what specification we will be able to furnish on the 200 kegs of countersunk checkered head nails." On the next day plaintiffs wrote defendant: "Replying to your letter of the 22d inst., this will serve to confirm, our verbal order of the 19th inst. for 1,000 kegs of nails for export; 800 kegs are to be common wire nails as per attached specifications, and the remaining 200 to be countersunk checkered head quality, specifiations to be submitted by you from your warehouse stock. These, however, to be of the same general assortment as the other 800." Defendant appellant claims that from these letters it is evident that no binding agreement was made in respect of the 200 kegs, the sale of which was subject to agreement as to the "specifications" after submission of the same by defendant to plaintiffs. Plaintiffs have succeeded-whether on the theory that the writings are ambiguous or not we need not determine-in introducing into evidence the conversations in regard to this matter in which plaintiffs testified what they had said to defendant's salesman: "Two hundred kegs of nails to be of countersunk checkered head quality, to be of the same general assortment as the 800 kegs, but he could not tell me at the time how many kegs of each different size he could give me until he consulted the mill and let me know just what the quantites would be." And on cross-examination he said of the salesman: "He would have to find out from the mill how many kegs they had on hand of these specifications." The testimony of the salesman is substantially to the same effect. It seems to me that, whether the writings be considered alone or in connection with these conversations, both parties expected that something material to the sale was to be submitted by defendant to plaintiffs for approval and agreement, before the sale of the 200 kegs should be deemed to have been effected. While plaintiffs lay stress upon the clause of their letter of September 23d, "These, however, to be of the same general assortment as the other 800," defendant claims that this letter was not the contract. Plaintiffs, on the other hand, with much force, argue that in subsequent correspondence this particular letter is referred to as if it either constituted the contract or were at least a part thereof. Regardless of that point, it is to my mind determinative that even in that letter the plaintiffs require "specifications to be submitted by you from your warehouse stock." We cannot disregard this (188 N.Y.S.) requirement. Indeed, it is the one thought which is expressed in every one of the letters and in every conversation, and must be accorded appropriate weight. Both counsel agree that the word "specifications" means "sizes as distinguished by respective lengths and gauges; also quantities, respectively, in kegs of each size." While, as is frequently the case in the correspondence and conversations of business men, the precise significance of particular phrases has not been accurately weighed or distinctly measured, it seems to me to be perfectly clear that plaintiffs anticipated that defendant would submit certain descriptions or specifications before the sale of the 200 kegs should be regarded as closed, and since the rejection of a part of these 200 kegs was based upon the unsatisfactory character of the specifications as submitted by the defendant, I am of opinion that, in the absence of an agreement on that vital point, no binding contract was made as to the 200 kegs. A recovery for failure to deliver the same is therefore unjustified. There is a further point urged by defendant, namely, that no competent evidence of damage was given, which I think would alone warrant a reversal; but, since the first ground is decisive, the second need not be further discussed. Judgment reversed, with $30 costs, and complaint dismissed, with appropriate costs in the court below. All concur. (114 Misc. Rep. 662) PRE' CATELAN, Inc., v. INTERNATIONAL FEDERATION OF WORKERS IN THE HOTEL, RESTAURANT, LUNCH ROOM, CLUB, AND CATERING INDUSTRY et al. (Supreme Court, Special Term, New York County. March, 1921.) 1. Injunction 135-Writ may be granted only when exigencies of case warrant it. The writ of injunction never issues as a matter of course, but a court of equity will not withhold its power in that regard when a prima facie case is presented and the exigencies of the case warrant its action. 2. Injunction 101 (2)-Strikes and picketing lawful only when conducted by lawful means. Strikes and picketing are lawful when conducted by lawful means, but do not carry with them the privilege of destruction as a means to an end, nor the right to unlawfully coerce or oppress. 3. Injunction 163 (3)-Motion to continue granted, where picketing was accompanied by violence. A motion by a restaurant keeper to continue an injunction pendente lite against a waiters' union will be granted, where it appeared that plaintiff insisted on an open shop, and defendants wanted it unionized, and also wanted to maintain on plaintiff's premises a shop representative, and that picketing had been instituted by defendants, accompanied by acts of violence and intimidation of nonunion employees and patrons. Suit by Pre' Catelan, Incorporated, against the International Federation of Workers in the Hotel, Restaurant, Lunch Room, Club and Cater For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ing Industry and another. On motion to continue an injunction pendente lite. Motion granted. Harry W. Newburger, of New York City, for plaintiff. On ERLANGER, J. The moving papers show that plaintiff is engaged in the restaurant business, in which it has invested upwards of $100,000. Its rent is about $25,000 yearly; it employs approximately 100 persons in different capacities, among them a large number of waiters; that it has always maintained an "open shop," and never discriminated against union labor; that the head waiter hired the employees. February 13, 1921, at about 10 p. m. while the restaurant was crowded with patrons, who had given their orders, but had not yet been served, all the waiters, without cause or grievance therefor, suddenly and without warning or notice walked out, and on the following day began picketing in front of its place of business in groups or squads consisting of from 2 to 15 persons; that the latter carry upon their person a sign which reads "Workers of Pre' Catelan on strike for better conditions," and then there is recited a series of acts of violence and intimidation against its employees and intended patrons so shocking that one is almost stunned at the thought that such occurrences are possible in a civilized country. It is shown that one of the employees is in the Roosevelt Hospital, suffering from a fractured nose, blackened eyes, and lacerations of the face; that his assailant was arrested and held to bail; that another was attacked almost in front of plaintiff's premises, and beaten about the head and face nearly into unconsciousness; that another was kicked in the head and face, and is confined to his home as the result of his injuries; that another was knocked down by persons jumping from a taxicab, who beat up his head and face, and who has since been confined to his home by reason of the assault; that others were called vile names; that a number of patrons have been threatened by the sign bearers with bodily harm if they continued to patronize plaintiff; that other patrons were told that the place was disorderly and was to be raided; that the employees were threatened with harm if they did not quit working for the plaintiff; that the patrolling is for the purpose of intimidating its employees and to induce them to join the union; that agents of the defendants have entered plaintiff's premises, and used indecent language to its employees, and interfered with them in the discharge of their duties; that the entrance to its premises was blocked, its employees followed to their homes, all of which is a part of a scheme to injure and demoralize plaintiff's business and to produce fear on the part of its employees; that the pickets are on duty from 11 a. m. to 1 a. m.; that to protect its employees they are carried back and forth in taxicabs. The defendants make a sweeping denial of all the charges so made against them. In the opposing papers a history is given of conditions existing in the hotel and restaurant industry, showing how bad they were before the association defendant was formed, and the improvement that has taken place from that time on as to wages, hours of work, (188 N.Y.S.) and living conditions; that in 1918 the union presented demands to the plaintiff as to wages, hours of labor, and reduction of working days from 7 to 6, and an amicable settlement was attempted, and, this being refused, a strike was called by the union, which lasted only a few hours, and finally the demands were granted. Since then and for over two years the relations between plaintiff and the union have been amicable, and so continued for over two years. As a result of the agreement the union was permitted by plaintiff to appoint one of its employees as a shop representative, whose duty it was to see that the rules of the union and the agreement were enforced. Only members of the union were to be employed; that no employee was to be discharged, except for reasonable cause, and in the event of an indiscriminate discharge, upon investigation of the union, the employee was to be reinstated; that all of plaintiff's employees were members of the union for about three years; that, on the day following the strike, defendant's secretary called on plaintiff's secretary and offered to bring about an amicable settlement. of the strike; that the former advised the latter that the union had secured information that the plaintiff had employed a crew of nonunion men to take the place of the union employees, and if plaintiff would relinquish its plans against the union employees the matter could be settled immediately; that to this a threat to kill was made, and that the union would be shot to pieces and smashed if it insisted on maintaining jurisdiction over plaintiff's place; that all efforts to settle failed; that the cause of the strike was brought about by the employees being informed that it was plaintiff's intention to destroy the organization of its employees and to retain in its employ only such as were willing to give up their union membership; that on the 13th day of February a full crew of nonunion men was hired and the union employees discharged; that the waiters were "locked out," without any previous notice to them, and as a result went on strike; that the pickets were instructed to commit no act of violence or breach of the peace; that no more than 2 pickets were at any time in front of the premises; that customers were never threatened, and no attacks were made by the pickets; that no disorderly act occurred since the strike began; that the relation between plaintiff's customers and the former employees was amicable, "and for that reason it must be admitted that, perhaps due to the existence of the present strike, the plaintiff's place of business might have suffered somewhat, but this is not due to any threats made by the pickets, but to the sympathy of the dining public with the cause of the employees"; that no employees of plaintiff were followed, and no taxicabs used, but it is admitted "that some of the strong-arm men hired by the plaintiff carried the employees of plaintiff to and from their place of business in taxicabs, and these were the only taxicabs used in connection with the strike"; that plaintiff from the beginning of the picketing always had an officer in front of its place and hired men "who are very tough in appearance," who sought quarrels with the pickets. In fine, the contention is that the acts of the pickets were at all times peaceful, and the assaults, if committed, and other disturbances, were the acts of strangers. |