Abar v. Cooper , 175 N.Y.S.2d 279 ( 1958 )

Order of Special Term dismissing the complaint is unanimously modified, in the exercise of discretion, to the extent of granting plaintiff leave to replead, and is otherwise affirmed with costs to plaintiff to abide the event. It is conceded that the plaintiff has capacity to sue. He should allege, however, either exhaustion of administrative remedies or the futility of such action. Moreover, it would appear that all parties upon whom a judgment would be binding should be joined, and this suggests the propriety of adding as parties the Union and members of the class benefited by the pension fund, at least in some representative capacity. Settle order. Concur — Breitel, J. P., Rabin, McNally, Stevens and Bergan, JJ.