¶1 (dissenting). The judgment should be reversed and the complaint dismissed. The issuance of an injunction in a case like this is positively forbidden by section 876-a of our Civil Practice Act, by the decisions of this court and by the decisions of the United States Supreme Court construing the free speech guaranty of the Constitution of the United States.
¶2 Plaintiff Loizides owned a restaurant. The other six plaintiffs were his employees. Defendant union tried to negotiate a collective bargaining agreement with owner Loizides. Loizides refused to negotiate. Beyond any doubt there was then and there a labor dispute. The union, believing — and surely not being without good reason for that belief — that it had a settled and absolute right to advertise to the public the grievance it claimed to have, began to picket the restaurant. The “ picket line ” consisted of just one picket. The Trial Justice has specifically found that the one-man picketing “ was at all times orderly and peaceful,” that “ no acts of violence have been threatened or committed by the defendant union,” that “ the picket on the picket Une … requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” If the picketing described in those findings, herein quoted verbatim, is unlawful, then picketing has been absolutely and completely outlawed in this State.
¶3*504 Owner Loizides, for the express and admitted purpose of removing the one-man picket line from in front of his restaurant, called together his six employees and with them signed a document which made them all his partners. Having thus completely changed the aspect of his enterprise, Loizides, with all his newly-minted partners joined as co-suitors, demanded of the court of equity that defendants be forthwith and forever enjoined from picketing the cafeteria. Section 876-a troubled Loizides not at all. He and his erstwhile workers, he explained to the court, were now co-equals and co-proprietors, and so, he argued, there could not be any “ labor dispute ” between the plaintiffs and the defendant union. Any “ labor dispute ” there might have been in the pre-partnership days, plaintiffs told the court, came to a full and final stop when the six employees, without leaving their posts or doffing their uniforms, assumed the roles of partners. Through such a device and on such an argument has the owner of this restaurant secured an injunction which in so many words prohibits any picketing of any kind whatever. No such injunction can be countenanced by this court. To affirm that injunction we must hold that this is not “ a case growing out of a labor dispute.” (Civ. Pr. Act, § 876-a.) Such a holding is impossible. Whether we take the allegations of the complaint, the admitted facts, the trial court’s findings or any or all of them, the complaint must be dismissed.
¶4 True, there are no findings that the dispute which concededly existed before the picketing began on April fifteenth and concededly continued until the partnership agreement was signed, held over and continued after the partnership had sprung into being on April twenty-second. But Loizides himself testified that he adopted the partnership plan to stop the picketing. What finding was necessary after that frank admission? There is no dispute of fact here. The injunction depends solely on an impossible construction of the law.
¶5 We are told that this action rests not on section 876-a, but on the principles of the common law. There is no point in reviewing the numerous decisions of this court in recent years denying the power to issue injunctions against peaceful, orderly picketing without threats or intimidation in bona fide labor disputes. Any common law of this State holding to the contrary must date back *505 before Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260), Stillwell Theatre, Inc., v. Kaplan (259 N. Y. 405) or J. H. & S. Theatres, Inc.,v. Fay (260 N. Y. 315), all of which cases antedate the enactment of section 876-a and all of which are positive in their affirmations of the right to picket peacefully.
¶6 Even if this injunction were not unlawful under section 876-a and under our decisions, early and late, even if there were no labor dispute and no case growing out of a labor dispute, this ban against peaceful picketing would still be violative of the Federal Bill of Rights. Most plainly is this pointed out in Bakery & Pastry Drivers & Helpers Local 802 v. Wohl (315 U. S. 769), where the Supreme Court noted ip. 774) that the New York courts had seemed to assume that the legality of the injunction followed from a determination that a labor dispute was not involved. “ Of course,” said the Supreme Court “ that does not follow: one need not be in a ‘ labor dispute ’ as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.” (See, also, Thornhill v. Alabama, 310 U. S. 88, 100; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, 296-298; American Federation of Labor v. Swing, 312 U. S. 321.) Nothing is now better settled than that picketing is an exercise^of the constitutional right of free speech, that it needs no authorization from the State, which may in proper case regulate picketing, but may never forbid it.
¶7 The Supreme Court decisions just cited make it unnecessary to deal extensively with Thompson v. Boekhout (273 N. Y. 390), wherein this court declared the absence of a labor dispute in a case where the owner of a small business decided to run it without any employees at all. The constitutional question was not there raised. Incidentally, this court later made plain that the Thompson v. Boekhout ruling was to be limited to its special facts, for in Boro Park S. L. P. Market, Inc. v. Heller (280 N. Y. 481) this court decided that a labor dispute did exist with defendant union though all those employed in plaintiff’s business were stockholders of plaintiff corporation. Here Loizides did not discharge his employees and thereafter do all the work himself. He conferred a new status on their labors by drawing up a partnership agreement, which, *506 while “ vahd ” as the court held, was nevertheless a device (see Matter of Scott v. Miller, 285 N. Y. 760) to keep out the union while retaining the same services of the same workers as “ partners.”
¶8 We have not overlooked findings of fact numbered Fourth and Tenth. The first of these charges the picket with “ bearing false and misleading signs that tend to create the impression that the plaintiffs are unfair to organized labor, and also tend to create the impression in the eyes of the public that these pickets were previously employed by the plaintiffs.” Actually the picketing signs said nothing about a strike or a previous employment; they simply announced (according to plaintiff Loizides): “ This place is unfair to organized labor, please help us.” Such statements cannot be enjoined. (Wilner v. Bless, 243 N. Y. 544; Nann v. Raimist, 255 N. Y. 307.) The Tenth finding is that the picket told prospective customers of the cafeteria that the cafeteria served bad food and that by patronizing it customers “ were aiding the cause of Fascism.” But there is another finding (Twenty-third) above referred to, which states positively that the picket “ requested the public not to patronize said cafeteria since it was unfair to union labor, and made no other statements or representations.” The Tenth and Twenty-third findings are obviously irreconcilable and, applying as we must the settled rule that, where there are conflicting findings, appellants get the benefit of the findings most favorable to them, we ignore the Tenth finding. Of course, even were that finding binding on us, the complaint would still have to be dismissed for non-compliance with section 876-a.
¶9 In this small lawsuit there is at hazard, just as surely as in great strifes that sweep the world, an ancient and inalienable right. If that right cannot find vindication in the courts, it has little chance elsewhere.
¶10 The judgment should be reversed, and the complaint dismissed, with costs.
¶11 Finch Lewis and Conway, JJ., concur with Rippey, J., Desmond, J., dissents in opinion in which Lehman, Ch. J., and Lotjghkan, J., concur.
¶12 Judgment affirmea.