Citation Numbers: 189 Misc. 551
Judges: Lumbard
Filed Date: 8/7/1947
Status: Precedential
Modified Date: 1/12/2023
Plaintiff moves for an injunction pendente lite restraining the defendants from indulging in any course of conduct which tends to interfere with plaintiff’s rights under his agreement with certain hotels, and from inducing breaches of that contract. The defendants assert that the acts complained of arise out of a labor dispute and that section 876-a of the Civil Practice Act bars this relief to the plaintiff, and further that there is no such clear showing in the affidavits before the court to justify the granting of a temporary injunction.
The plaintiff has been in the business of agent for booking theatrical talent since 1944, which talent consists largely of members of the American Guild of Variety Artists (AGVA), who perform at summer hotel resorts in the Catsldll Mountains. He is bound by the terms prescribed in a franchise issued to him by AGVA on his application therefor. Similarly, the hotels involved in this application are bound by their respective agreements with AGVA to lodge all their performers within a radius of five miles from the place of their engagements. Plainly, this provision was designed to improve working conditions of these actors.
The plaintiff conceived the idea of renting a hotel in the Catskill Mountain area to house the performers he engaged for his various clients. It is conceded that the performers concerned here played at hotels more than five miles distant in radius. The lodging of these performers at plaintiff’s hotel was a clear violation of the hotel owners’ agreement with AGVA, and in turn, of plaintiff’s agreement with AGVA.
Plaintiff contends that the hotel operators offered rooms and board to their performers, as required by their contract, but that they preferred to stay at plaintiff’s hotel, located more than five miles from the scene of their engagements. The union, however, disputes this, terming the offer a “ token ”, and charges the plaintiff with employee-domination, and unfair labor practices in that the hotel operators and plaintiff were in league to violate and break AGVA’s contract.
Five hotels dealing with plaintiff were placed on .the “ National Unfair List ” by AGVA for breach of the agreement. Since the bringing on of this application, these hotels were removed from the blacklist, thus eliminating that phase of the motion.
The time spent in traveling to and from the place where these services- of the actors are to be performed and the conditions under which they must live away from their own homes, are working conditions or “ conditions of employment ”, and are the proper concern of labor unions organized to protect the manifest interests of their members. Any com* troversy as to such conditions is clearly a “ labor dispute ” within the meaning of section 876-a of the Civil Practice Act which prohibits labor injunctions in such cases without a hearing upon adequate notice and full opportunity for examination and cross-examination of witnesses, and then only after the court has made certain findings as set forth in subdivision 1 of section 876-a.
None of the conditions laid down by the statute for the issuance of an injunction in such a dispute is met by the plaintiff. Only if the court could say that this controversy involves no labor dispute within the meaning of section 876-a could the court proceed to consider whether an injunction
Furthermore, the complaint fails to allege, as a condition precedent to securing the relief sought, that the plaintiff has made every reasonable effort to settle the dispute by negotiation or with the aid of any machinery of mediation or arbitration (§ 876-a, subd. 1, par. [f], subpar. [4]).
For the reasons above stated, no injunctive relief may be granted to the plaintiff on the facts of this case.
There is a further reason for the denial of this application. Plaintiff fails to make a clear showing that he ,is entitled to injunctive relief. Quite to the contrary, the papers present an irreconcilable diversity of facts on many of the main issues. This conflict, in any event, should be determined after a trial.
Motion is denied.