(dissenting). In modifying the order of the Special Term dismissing the original complaint - in this action we affirmed the dismissal but permitted the plaintiff to replead (279 App. Div. 545). In deference to our views the court at Special Term has denied a motion to dismiss the present complaint which is in substantial compliance with the further pleading permissible under our decision,
*419The new complaint pleads in effect the joint action of the defendants in so delaying submission of a proceeding in arbitration which they controlled that plaintiff’s right to adjudication was frustrated and prevented.
There can be no doubt that if plaintiff had been a direct party to the agreement to arbitrate and hence became a party in the arbitration proceeding and had the freedom of choice to move, or not to move, to set aside the award, he would be kept by the court within the one procedural facility that would then be open to him by an appropriate and timely application. That point has been long settled by decisions of which Raven Elec. Co. v. Linzer (302 N. Y. 188) and Estro Chem. Co. v. Falk (303 N. Y. 83) are recent and typical examples.
But we pointed out on the original appeal in this case (279 App. Div. 549) that the arbitration article of the Civil Practice Act does not authorize plaintiff to move in respect of the award. He is not a “ party to the controversy ” who may move to vacate the award. (Civ. Prac. Act, § 1462.) This sort of disability was clearly raised and decided in Matter of Romanoff (Nilow Realty Corp.) (273 App. Div. 788).
It is argued that everything his union does in the arbitration proceeding is binding on plaintiff as against the employer, and the union not having acted in his interest, he is left to what remedy he may be able to- discover to be available against the union. But this surely may not be adequate relief for an employee having a just claim against an employer arising from industrial controversy.
The identity between the union and the employee in respect of arbitration is not, for one thing, as complete as the argument before us would seem to suggest. A diversity in respect of arbitration is suggested in Hudak v. Hornell Inds. (304 N. Y. 207). There the union of which plaintiffs were members made a contract with the employer in which it was agreed that any question ‘ ‘ relating to the discharge of ” a union member which could not be agreed on between the union and the employer shall “ be submitted to a board of arbitration”. (P. 211.)
Plaintiffs sued the employer in direct actions on contract for a breach of the agreement between the union and the employer growing out of their discharge. The Appellate Division dismissed (278 App. Div. 888, affg. 199 Misc. 538) but the Court, of Appeals was of opinion the direct action would lie notwithstanding the arbitration agreement. One ground leading to the reversal was that although there a dispute between the plaintiffs and the defendant employer was shown, no dispute. *420was shown, to exist between the union and the employer (p. 214), and the direct employer-employee dispute was held not to require arbitration.
Where it is alleged, as it is in the complaint before us, that the union intentionally refused to bring the plaintiff’s claim for timely arbitration; that the employer acted affirmatively and jointly with the union in refusing to bring the claim to timely arbitration; and that this refusal in itself in the way both defendants acted proeedurally before the arbitrators and in their joint action in delaying submission was the ground on which plaintiff failed to obtain consideration of the merits of his claim in arbitration, an actionable case is shown. (Cf. Matter of Zimmerman v. Cohen, 236 N. Y. 15.)
We discussed in some detail the survival of the equitable action addressed to the award when the case was here before (279 App. Div. 545). Equitable relief has been withheld, not because the Legislature has taken it away expressly, but because the arbitration article of the Civil Practice Act affords a complete and available remedy to parties to arbitration proceedings and it is the decisional law of the State that equity will not intervene where there is another adequate available remedy.
But where there is no other remedy, no good reason exists to deny an equitable remedy which has always existed in the judicial supervision of arbitration. A careful examination of the cases decided in equity will demonstrate that the decree reached substantially all of the questions now examined by motion addressed to an award.
It is not an adequate answer to plaintiff’s action to say that he ought to have moved the Special Term to vacate the award in a proceeding under a statute which gives him no such right to move; and then to hold that he has no right to sue because he should have moved to vacate. This would exalt procedural form to a place high above substance.
If one man has a legal relation with another in which the other violates a duty in an area which the court regards as actionable, the intrusion by a third party into active participation in the breach becomes also actionable under the usual concepts of conspiracy, even though as to the subject matter there may originally have been no responsive obligation resting on the intruding third party.
We must read the present complaint in its most favorable light, and thus reading it, it is found to plead the active participation of the defendant employer in joining with the defendant union to delay the arbitration of plaintiff’s claim to the *421point of time when the arbitrators refused to adjudicate the merits because of that very delay. We ought not to hold that plaintiff has no remedy under the facts as he thus pleads them to require the two defendants to undo an adjudication made between them which they still can control and avoid.
The facts as now pleaded show a case in which the usual statutory procedures are closed to the plaintiff and they show a joint course of conduct by both defendants adversely affecting plaintiff’s rights. We are of opinion that plaintiff pleads himself within the court’s equitable jurisdiction, lie surely has no other adequate remedy.
The order should be affirmed.
Goon and Imrie, JJ., concur with Halpern, J.; Bergan, J., dissents in an opinion in which Foster, P. J., concurs.
Order reversed and motion by defendant-appellant to dismiss the complaint granted, with $10 costs.