I dissent and vote to reverse the order below and to dismiss the application to appoint a Referee to ascertain damages by reason of a temporary injunction granted August 1,1958. The action was commenced to restrain the defendants and their unions from picketing the plaintiff’s place of business to coerce him into the recognition of a different union from the one with which the employer had a valid contract.
The plaintiff took the position that the defendants violated the law and that the State was not pre-empted from that field. The condition of the bond was that the surety undertook to pay the defendants such damages not exceeding $6,000 “ as they or it may sustain by reason of the temporary injunction, if the Court shall finally decide that the Plaintiff is not entitled thereto; such damages to be ascertained by a reference or otherwise as the Court may direct.”
Thereafter the trial of the action was held and the injunction made permanent. Our court affirmed the appeal from the judgment and the order. (7 A D 2d 880.) Permission was subsequently granted to appeal to the Court of Appeals. After the appeal was argued, a reargument was directed upon two issues, viz., (1) the effect of the decision of the Supreme Court of the United States in Labor Bd. v. Drivers Local Union (362 U. S. 274) on the issue of States’ jurisdiction to enjoin the picketing here involved and (2) the impact of new paragraph (7) of subdivision (b) of section 8 of the National Labor Relations Act (73 U. S. Stat. 519 et seq.; U. S. Code, tit. 29, § 158, subd. [b], par. [7]) upon the present controversy, including the issue of mootness. After deliberating upon the additional questions, the Court of Appeals held that “ the permanent injunction granted [8 N Y 2d 91, 98] below obviously cannot stand.” It did not specifically hold that the temporary injunction was invalid.
The question presented here is whether the denial of the “ permanent ” injunction was a determination that the temporary injunction was improper when issued or whether it was proper when issued but had become academic by reason of the pre-emption of the field in controversy by the Federal Government by both statute and decisional law. The Court of Appeals in the instant case emphasized the effect of ‘ ‘ preemption ” not only in the prevailing opinion but especially in the concurring opinion. (8 N Y 2d 91.)
The general principle of law is that, if a plaintiff discontinues the action for an injunction it is equivalent to a holding that he is not entitled to the preliminary injunction. (Methodist Churches of N. Y. v. Baker, 18 N. Y. 463.) But if the *66dismissal results from matters arising subsequent to the commencement of the action, which in no way involves the merits of the action, it does not follow that the plaintiff was not entitled to the preliminary injunction. (Williams v. Montgomery, 148 N. Y. 519; Apollinaris Co. v. Venable, 136 N. Y. 46; Palmer v. Foley, 71 N. Y. 106; Hathorn v. Natural Carbonic Gas Co., 163 App. Div. 768.)
But in the case before us, the field which had been open to the State (cf. Pleasant Val. v. Talarico, 5 N Y 2d 40) at the time of the commencement of the action, had been pre-empted by the Federal Government before the final decision by the Court of Appeals. There was no direct determination by a State court that the temporary injunction had been improperly issued. Indeed under the circumstances herein it was immaterial whether it was issued properly or not, for after pre-emption the State courts no longer had jurisdiction. The permanent injunction was denied not because of merit intrinsic to the cause but because of matters extrinsic to the original issue and in a sense independent of it.
There is a further reason for denying the union in the instant case a recovery. Such a recovery would be tantamount to paying a premium to a party who asserts as his defense and uses as an offensive weapon his violation of law. There is no question but that the recognitional picketing herein sought to be barred is barred under the Landrum-Griffin amendments to the National Labor Relations Act.
All concur, except McClusky, J., who dissents and votes for reversal in a separate opinion. Present—Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.
Order affirmed, with $25 costs and disbursements.