Dinny & Robbins, Inc. v. Retail Shoe Salesmen's Union, Local 1115-F

Majority

p. 375

Dinny & Robbins, Inc., Respondent, Appellant, v. Retail Shoe Salesmen’s Union, Local 1115-F, R. C. I. P. A., Affiliated with the American Federation of Labor, and Others, Defendants, Impleaded with Alfred S. Davis, as Treasurer of Retail Shoe Salesmen’s Union, Local 1115-F, R. C. I. P. A., Affiliated with the American Federation of Labor, Appellant, Respondent.

First Department,

June 19, 1942.

Leon Reich of counsel [Simon J. Liebowitz with him on the brief; Liebowitz & Schuman, attorneys], for the appellant-respondent.

Samuel J. Robbins, for the respondent-appellant.

The complaint alleges and the evidence establishes the existence of a labor dispute within the meaning of section 876-a of the Civil Practice Act. The plaintiff’s failure to comply with the provisions of that section requires the reversal of the judgment and the dismissal of the complaint.

The judgment should be reversed, with costs to the defendant-appellant-respondent, and the complaint dismissed, with costs.

Untermyer, Cohn and Callahan, JJ., concur; Martin, P. J., and Dore, J., dissent.

p. 376

Judgment reversed, with costs to the defendant-appellant-respondent, and the complaint dismissed, with costs. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.