It is settled law, and here accepted without question, that union agreements of collective bargaining for a “ closed shop ” and “ check off ” are valid.
" The validity in respect of nonunion employees of the contract provision by which the employer agreed- to deduct from the salary due each employee, whether or not such employee was a member of the union, and pay over to the union initiation fees and monthly dues and such other amounts which the union by written notice certified to the employer is questioned by the employer whom the union is here suing. By the contract it was also agreed that if the union was unable .to furnish union employees the employer could employ outside help provided such employee immediately applied for union membership; and if the applicant was rejected the employer was required to terminate the employment.
The union’s certificate to the employer upon which it based this action was for two nonunion men, dues for three months, $38, and initiation, $25 each, total $68. Even if it be open to question that the agreement sought to require the employer to deprive nonassenting nonunion employees of wages earned in violation of sections 196 to 198 of the Labor Law and section 1272 of the Penal Law, it seems obvious that the nonunion employees did not owe the union either initiation fees or dues. Neither of them was shown either to have applied for or to have been admitted to union membership or to have consented to such deduction or payment from his wages.
I do not agree that on appeal the complaint should be amended to state a cause of action or theory not urged below. Since plaintiff did not show that the nonunion employees owed the union the initiation fees and dues in suit it is difficult to see any theory under which the employer was obligated to deduct and pay them over to plaintiff.
I concur for reversal and dismissal on the merits.