(dissenting). I dissent and vote to affirm. In the view I take of this case there is not shown that unity of interest between plaintiffs and the photographic studios which would justify or permit of secondary picketing by the defendants-appellants.
In this connection the language of Goldfinger v. Feintuch (276 N. Y. 281) upon, which the appellants place great reliance is significant. The court said (p. 287): “ We do not hold more than that where a retailer is in unity of interest with the manufacturer, the union may follow the non-union goods and seek by peaceful picketing to persuade the consuming public to refrain from purchasing the non-union product, whether that is at the plant of the manufacturer or at the store of the retailer in the same line of business and in unity of interest with the manufacturer.” (Emphasis theirs.) In that case there was the manufacture of a nonunion product and its sale by Goldfinger, a retailer. Clearly there was a unity of interest. The manufacturer and the retailer were in a business for profit, the one manufacturing and the other selling a nonunion product. There the competition of a nonunion with a union product, in terms of the cost of production and the resulting ability to "undersell competitors, could prove disastrous to the maintenance of any union wage scale and other legitimate union objectives.
Nor do I think the Muller case supports the contention of the appellants (People v. Muller, 286 N. Y. 281). In that case the company against which the union had a grievance had a contract with the complainant to maintain in a serviceable condition the apparatus which the company had installed some years earlier. *116There was thus a continuing relationship based upon or resulting from a contract.
In the instant case the respondents are not in the same business as or with the studios. They neither hire photographers nor are their patrons required to employ photographers as a condition to obtaining respondents’ premises or services. An incidental accommodation in the past should hardly be construed to create that unity of interest which would permit of this picketing— particularly where, as here, respondents employ all union help. Nor is this a controversy growing out of terms or conditions of employment, nor one in which the party picketed has such direct and beneficial relation with the person against whom the grievance exists, as to justify as proper, the inevitable consequence of loss of profits and inconvenience to respondents. For it is unrealistic to assume that even peaceful picketing will not seriously interfere with respondents’ business.
Botein, P. J., Breitel, McNally and Bastow, JJ., concur in Per Curiam opinion; Stevens, J., dissents and votes to affirm in opinion.
Order modified, on the law and on the facts, and in the exercise of discretion, to the extent only of denying the motion for temporary injunction, with costs to the appellants. The order, insofar as it denies defendants’ motion to dismiss the complaint, is affirmed. We pass on no other questions.
Settle order.