(dissenting). I dissent and vote to affirm the order below dismissing the complaint as to the defendant union and denying the motion for a temporary injunction on the authority of Allen Bradley Co. v. Local (325 U. S. 797); Bakery & Pastry Drivers Local v. Wohl (315 U. S. 769) ; People v. Muller (286 N. Y. 281); Exchange Bakery & Restaurant, Inc., v. Rifkin (245 N. Y. 260); Goldfinger v. Feintuch (276 N. Y. 281); Nann v. Raimist (255 N. Y. 307); Stillwell Theatres, Inc., v. Kaplan (259 N. Y. 405). The complaint does not charge violence or that the picketing is accompanied by false statements. There was a “ labor dispute ” within the *182meaning of section 876-a (subd. 10, par. [c]) of the Civil Practice Act for there is here involved a “ controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.”
In any event the defendants were not engaged in an unlawful labor objective. The case of Allen Bradley Co. v. Local (325 U. S. 797, supra) is authority for that proposition. It is true that that case involved the application of the Sherman Antitrust Law but practically all of the contentions here made by the appellant concerning the absence of a labor dispute, the legality of the labor objective and the restraint upon interstate commerce were urged in that case. Mr. Justice Roberts, who refused to concur in the court’s opinion, pointed out that the effect of the labor union’s conduct was to set up a “ wall ” of exclusion but that view was rejected by the rest of the court. The labor objective not being unlawful, the peaceful picketing and nonmisleading appeal to the consuming public come within that area of freedom of speech which is guaranteed by the Federal Constitution (A. F. of L. v. Swing, 312 U. S. 321). Unlike Carpenters Union v. Ritter’s Cafe (315 U. S. 722) we are confronted here with a limitation upon speech in circumstances where there exists an “ ‘ interdependence of economic interest of all engaged in the same industry ’ ” (p. 727); the retail establishments here being picketed have a direct connection industrially with the controversy.
Moreover, there is here present the “ human relationship ” and the “ actual employment ” which were absent in Opera on Tour v. Weber (285 N. Y. 348, 357, supra), and unlike that case we have here a ‘ ‘ controversy arising out of the respective interests of employer and employee whether they stand in such relationship or not.” (P. 358.) The object of the picketing and of the appeal to the consuming public in this case is to prevent loss of jobs, wages, and welfare benefits to members of the respondent union already employed in the industry. The members of defendant union do not receive a steady weekly wage but are paid according to the number of pounds of poultry slaughtered by employee members with all the earnings pooled each week and then divided among all the members of the union.
The economic and social soundness, the wisdom or the practical expediency of the position taken by the union in this industrial controversy are not for this court to determine. (Cf. United States v. Hutcheson, 312 U. S. 219, 232.) The consuming public, which is interested, should be afforded the opportunity *183of deciding these questions and a peaceful and truthful appeal to that public, by way of picketing the retail establishments directly involved in the dispute, is not unlawful; rather it' is protected by the fundamental law of the land.
The complaint does not allege (although the affidavits in support of the application for a temporary injunction do) that the frozen kosher poultry slaughtered outside of the State is slaughtered by a member of a recognized union affiliated with the American Federation of Labor of which defendant union is itself an affiliate. A deficiency in the complaint (and appellant did not avail itself of the right to amend accorded below) may not be supplied by the injunction affidavits, Moreover, assuming that the complaint did contain the allegation referred to, that precise question was passed upon adversely to the appellant’s contention in the case of Allen Bradley Co. v Local (325 U. S. 797, supra). That case by the modification of the injunction there involved ruled upon the issues here presented. Whether or not it be called dictum, it was something more than a passing observation by the court. The riding expressly permitted the union to do the very things here complained of by the appellant. (See, also, United States v. Hutcheson, 312 U. S. 219, supra; Gundersheimer’s, Inc., v. Bakery & Confectionery Workers’ Union, 119 F. 2d 205; Donnelly Garment Co. v. Dubinsky, 154 F. 2d 38; Nann v. Raimist, 255 N. Y. 307, supra; Stillwell Theatres, Inc., v. Kaplan, 259 N. Y. 405, supra; Sachs Quality Furniture, Inc., v. Hensley, 269 App. Div. 264.)
It is urged that the Federal Taft-Hartley Act prohibits the peaceful picketing and persuasion here resorted to and specifically that Allen Bradley Co. v. Local (325 U. S. 797, supra) has in effect been superseded by that act. It is unnecessary for this court to determine that question in the instant case. We have no law corresponding to the Taft-Hartley Act in this State. True, interstate commerce is here directly affected but the State courts have no jurisdiction to issue injunctions for violation of the Taft-Hartley Act. We do have jurisdiction over actions for damages for violation of certain provisions of that act. However, this complaint is not framed under that statute. Primarily it is an action in equity for injunctive relief and, if the plaintiff base its claim to that relief on the provisions of the Taft-Hartley Act, it should resort to the procedure therein specified and apply to the tribunals which are therein given sole jurisdiction.
The complaint was properly dismissed, with leave to amend and the application for an injunction pendente lite properly ,denied. r
*184Peck, P. J., G-lennon and Dore, J., concur with. Van Voorhis, J.; Shientag, J., dissents in opinion, on appeal from the order denying motion of plaintiff for a temporary injunction and from the order granting motion of defendant union to dismiss the complaint against said defendant as insufficient in law. denied.
Order denying plaintiff’s motion for a temporary injunction reversed, with $10 costs and disbursements to the appellant, and the motion granted. Order granting motion to dismiss the complaint against defendant union reversed, with $10 costs and disbursements to the appellant, and said motion denied. Order dismissing the complaint against the individual defendants unanimously affirmed, with $10 costs and disbursements to said defendants-res^pondents. Settle orders on notice. [See post, p. 877.]