The decision made in this case throws into bold relief the narrowly restrictive interpretation of section 876-a of the Civil Practice Act, which the court adopted in Opera on Tour, Inc., v. Weber, and emphasizes the grounds for the contrary view put forth in my dissenting opinion in that case, in which Judge LOUGHRAN concurs. I still do not understand how a statute which expressly provides that in a case "involving or growing out of a labor dispute," acts specified therein, may not be enjoined "on the ground that the persons engaged therein constitute anunlawful combination or conspiracy or on any other grounds whatsoever" can be construed in manner which would exclude from the statutory definition of a "labor dispute" any dispute with a labor union unless "the objective of the labor union is a lawful one."
Accepting as I must the construction which the majority of the court has placed upon its earlier decision, I do not attempt to challenge the conclusion that the plaintiff has stated a cause of action for an injunction, if the earlier decision be accepted as binding precedent and authority. For the reasons stated in my dissenting opinion in the earlier case, I felt constrained to find that the injunction "constitutes an intrusion by the court into a field from which it is excluded under the law of the state as formulated in an unbroken line of judicial decisions, by statute of the Legislature, and by the Constitution" (p. 366). For the same reasons I cannot accept the decision there as a precedent for subsequent decisions. I must continue to refuse my sanction to an injunction which I regard as an intrusion by the court into a field from which, in my opinion, it is excluded by statute, by the Constitution of the State of New York and by the Constitution of the United States.