Filed Date： 11/15/1957
Status： Precedential
Modified Date： 11/1/2024
Order reversed on the law and facts, without costs of this appeal to any party, and motion denied, without costs, and parties directed to proceed in accordance with the memorandum. Memorandum: It is impossible, upon the record before us, and absent a trial of the issues in this action seeking a permanent injunction, to make a proper determination of the issues presented. It involves many problems, including (1) whether or not the plaintiff is engaged in, interstate commerce, (2) the jurisdiction of the National Labor Relations Board as compared with the New York State Labor Relations Board, and (3) whether the union that has been presently recognized by the State Labor Relations Board is bona fide. All of these matters should he properly developed upon a trial of the issues. In our opinion the order appealed from should be reversed upon condition that the defendants shall within 10 days serve an answer; the action shall proceed promptly to trial; all without prejudice to the right of the plaintiff to apply at the end of 30 days for a further temporary injunction if the action has not been tried and determined by that date. It seems clear to us from oral admissions made by counsel for plaintiff that the failure to serve an answer was due entirely to oral stipulations extending such time by the plaintiff’s attorney. All concur, except Williams, J., who dissents and votes for affirmance in the following memorandum: I dissent because I think the temporary injunction should not be dissolved. Defendants have neglected to serve an answer and frame issues in this case although they could have done so at any time, regardless of plaintiff’s extensions of time. It is not necessary for us at this time to decide what we would do were the question of a permanent injunction presented. That question is not now before us. We simply have the question of whether or not we will sustain this temporary injunction which has been granted in a proceeding in accordance with section 876-a of the Civil Practice Act. I have no objection to an immediate trial of the issues as decided by the majority. (Appeal from an order of Brie Special Term restraining defendants and their agents etc., from interfering with work by plaintiff on St. Joseph Catholic Church, Gowanda, N. Y., pending trial and determination of the action.) Present — McCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.