The plaintiff has seen fit to bring this action against the defendants without making the various labor organizations and their members parties to the litigation. The complaint alleges the controversy between the plaintiff and the dock laborers and longshoremen which is the subject of the action of Reardon, Inc., v. Caton (189 App. Div. 501), and alleges that the members of the Truck Owners League, an unincorporated association of which plaintiff is the treasurer, and whose names are not stated in the complaint, are interfered with and prevented from carrying on their business by the refusal of the dock laborers to work with .the non-union *517employees of the members of the league, and it is charged that the defendants with full knowledge of the premises have wrongfully permitted the laborers, described as their employees, to declare and enforce an embargo or boycott against the league and its members. The facts concerning the so-called boycott or embargo are fully set forth in the opinion filed in the action of Reardon, Inc., v. Colon (supra). It seems to me that the preliminary injunction granted in this case originally without notice, and continued after argument, is contrary to law for several reasons: 1. The authority of the plaintiff to maintain the action on behalf of the unnamed members of the league and the interest of such members is not pleaded or proved. There is nothing to show for whom the plaintiff is assuming to act or that the individual members of the league, whoever they may be, are in sympathy with or have . authorized his action. 2. The moving affidavits show refusals by the longshoremen and dock laborers to work with the non-union drivers of the corporation of which the plaintiff is treasurer, and one other truck owner, Daniels & Kennedy, Mr. Kennedy being the president of the league. There is no evidence by affidavit of any difficulty on the part of any other truckman named to carry on his calling. 3. The action is based entirely upon the allegation that the defendant common carriers knowingly and wrongfully permit the workmen to refuse dealing with the non-union drivers of the league members. But each of the common carriers makes positive affidavit that the action of the dock laborers is without their assent and without their approval. No conspiracy between the common carriers and the dock laborers is pleaded or suggested. The affidavits for the carriers state that they are powerless'in the matter, because if they discharge their men they can procure no one else to do the work which is of so great importance to the entire community. As already suggested, the plaintiff has not joined the labor organizations as parties defendant in the action. The preliminary injunction is unnecessary and uncalled for. If the injunction in the action against the labor unions is sustained, there is no reason or necessity for enjoining the steamship companies. If, on the other hand, it is dissolved, in my opinion it would be the height of folly to issue a mandatory injunction such as this *518against the defendants. Because it appears that practically the entire force of dock laborers, checkers, weighers, etc., to the number of some 125,000 men, is unionized, and if they are left free to pursue their work and better their condition by lawful methods, any attempt by the steamship companies to force them to work with non-union drivers would' only result in a general strike and tie-up of the freight of the port. Upon the papers it is uncontradicted that it is impossible from a practical standpoint to obtain non-union labor to perform the work. 4. Certain of the defendants demur to the complaint, others deny that they are engaged in business at. all, others that they are common carriers, but the preliminary injunction sweeps all these denials aside and issues against defendants who, so far as the proof shows, have no connection with the controversy. And in addition, by a clause added to the order appealed from, the injunction is made to apply to and inure to the benefit of a number of individuals, copartnerships • and corporations in no way mentioned in the complaint or affidavits, but who are described in the order as " members of the plaintiff association,” without evidence to justify such description or opportunity given them to be heard.
Under elementary principles I think the injunction should have been denied. The dispute must be settled in the other case. From every point of view I think it was an abuse of discretion to issue such a mandatory injunction in advance of trial. (People ex rel. Wood v. Assessors, etc., 137 N. Y. 201, 204; Matter of Attorney-General, 124 App. Div. 401, 408.) Taking the case by itself, as the plaintiff sees fit to present it to the court, a preliminary injunction may benefit the two trucking concerns mentioned, enabling them to continue their exaction of the ten-hour day and payment of fifty cents for overtime, but it might ruin the seventy-five per cent of the truck owners in the port who are in accord with the labor organizations, and result in an embargo on the shipping in and out of New York, and would be unenforcible because it would bring about the very result which it purports to prevent. I think the order should be reversed and the motion denied.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
*519Jenks, P. J., concurred; Putnam, J., concurred in separate memorandum; Mills, J., read for affirmance; Rich, J., was of opinion that it is the duty of the carrier to accept the freight, and, therefore, concurred in the result reached by Mills, J., in so far as it enjoins the employers.
Putnam, J.:The delivery clerks, receiving clerks, weighers and checkers who by the judgment of this court are no longer enjoined from discriminating against plaintiff’s trucks in receiving freight for shipment, are the very servants and representatives of the carriers by which through traffic with connecting carriers is conducted. If the injunction against the organization of employed weighers, checkers and other employees is to be reversed, as the majority of this court have voted, then naturally the employers should not be enjoined, while leaving their men free to discriminate. I agree with the reasoning of Mr. Justice Mills, but consider it inapplicable after the reversal in Reardon, Inc., v. Caton.