(dissenting). It is to be regretted that the plaintiff’s case was presented to the Special Term on the untenable theory that the union of which the plaintiff is a member was his agent to execute the contract for the breach of which he seeks damages. The true theory on which the plaintiff must rely is that he is a third party beneficiary under the contract (Gulla v. Barton, 164 App. Div. 293), which was made by the union with the intention of benefiting those members who might then or thereafter be employed by the defendant. (Compare Seaver v. Ransom, 224 N. Y. 233.) That conclusion is confirmed by the recital of the contract that the employer thereby “ desires to insure the establishment of a satisfactory agreement with its employees.” (Italics mine.)
One of the terms of the contract intended for the protection of the defendant’s employees is that
“ In discharging, for economic reasons, the employer will abide by and follow seniority.
“ The employer agrees not to discharge any regular employee provided for herein, except for cause, upon one week’s notice, except in the case of dishonesty where no notice shall be required. The employees, desiring to terminate their employment with the employer, shall give one week’s notice to the employer of their intention so to do.”
These provisions, no less than the provisions which relate to hours of work and compensation, are plainly intended for the benefit of the defendant’s employees (Pond v. New Rochelle Water Co., 183 N. Y. 330; Farnsworth v. Boro Oil & Gas Co., 216 id. 40) by assuring to them security of employment and, for the duration of the union contract, prohibiting their discharge without cause, except for economic reasons, and then only according to seniority. An employee discharged in violation of these provisions, as the plaintiff claims to have been discharged, is entitled to assert a cause of action for damages caused by the defendant’s failure to continue the employment during good behavior for a period coextensive with the duration of the union contract unless economic causes intervened.
It is true, no doubt, that an employee could not avail himself of the provisions of the contract relating to arbitration because they only apply “ should any difference arise between the employer and the union.” (Italics mine.) For that reason a previous application by the plaintiff for arbitration of the controversy was properly refused. The refusal, however, should not prevent the plaintiff *525from enforcing against the defendant in an action at law those provisions of the contract which were intended for his benefit. It surely was not intended that the plaintiff and others in like position employed to work under the terms of the contract between the defendant and the union should be left without some remedy.
Whether the plaintiff’s discharge was justified, as the defendant contends, or whether, as the plaintiff contends, the discharge was without cause; whether the union consented to the plaintiff’s discharge or whether, as the plaintiff alleges, the union did not consent, are questions of fact which should be reserved for the trial and should not be determined on this motion for summary judgment. It should be observed, however, that the union could not relinquish rights of the plaintiff even though they were the product of a contract to which he was not a party after he had manifested his acceptance of its terms by commencing to work under the contract. (Gifford v. Corrigan, 117 N. Y. 257.)
The judgment and order should be reversed and the motion for summary judgment denied.
Judgment and order affirmed, with costs.