Beisner v. Kelly

In an action for a permanent injunction, the appeal is from an order (1) denying appellant’s motion for an injunction pendente lite, (2) dismissing the complaint for insufficiency on respondents’ cross motion, and (3) granting appellant’s motion for reargument and on reargument adhering to the original decision. Order modified by striking therefrom everything following the words “ upon reargument ” in the fourth ordering paragraph and by substituting therefor the words and figures “ (1) the original decision denying plaintiff's motion for an injunction pendente lite is adhered to, and (2) defendants’ cross motion to dismiss the complaint be and the same hereby is denied, with leave to defendants to serve an answer ”. As so modified, order affirmed, without costs. The answer, if respondents be so advised, must be served within 10 days after the entry of the order hereon. In our opinion, the complaint is sufficient on its face as against the Bartenders Union, since it charges that union with picketing to compel its recognition by appellant against the wishes of his employees, and to compel appellant to force them to join said union. On a motion to dismiss for insufficiency, the allegations of the complaint are deemed true. Such picketing would be illegal; the controversy would not constitute a labor dispute within the ambit of section 876-a of the Civil Practice Act, and the complaint consequently need not plead compliance with that statute (Goodwins, Inc. v. Uagedorn, 303 N. Y. 300). The complaint is also sufficient on its face as against the Musicians Union since it alleges that “ the defendants and each of them ” are acting in aid of each other in furtherance of the conspiracy to compel appellant to force his employees to join the Bartenders Union. Nolan, P. J., Beldoek, Ughetta and Kleinfeld, JJ., concur. Murphy, J., deceased.