Zinaida Stalban, Doing Business under the Trade Name and Style of Old Russian Bear Restaurant, Respondent, v. Sam Friedman, as President of Waiters & Waitresses Union, Local No. 1, and Harry Reich, as President of the Cooks and Kitchen Workers Union of New York, Local No. 89, Appellants

Zinaida Stalban, Doing Business under the Trade Name and Style of Old Russian Bear Restaurant, Respondent, v. Sam Friedman, as President of Waiters & Waitresses Union, Local No. 1, and Harry Reich, as President of the Cooks and Kitchen Workers Union of New York, Local No. 89, Appellants. First Department, May 17, 1940. Joseph D. Drazen of counsel [Jerome Drazen with him on the brief; Drazen & Drazen, attorneys], for the appellant Sam Friedman, as president, etc. Sidney Elliott Cohn of counsel [Hyman N. Glickstein and Leonard B. Boudin with him on the brief; Boudin, Cohn & Glickstein, attorneys], for the appellant Harry Reich, as president, etc. Louis Zimmerman, for the respondent. Revg. 171 Misc. 106. [MAJORITY — Per Curiam.] Per Curiam. The record discloses that a “ labor dispute ” was here involved, even though members of the defendant unions were not employed by the plaintiff. (Civ. Prac. Act, § 876-a, subd. 10; Goldfinger v. Feintuch, 276 N. Y. 281; May’s Furs & Ready-to-Wear, Inc., v. Bauer, 282 id. 331. See, also, Lauf v. Shinner & Co., 303 U. S. 323; New Negro Alliance v. Sanitary Grocery Co., Id. 552.) The plaintiff, having failed to plead or prove the facts prescribed by section 876-a of the Civil Practice Act, could not be accorded injunctive relief. (Boro Park Market v. Heller, 280 N. Y. 481.) The question is not affected by the fact, if it be a fact, that the State Labor Relations Board has held that the union, whose members are now employed by the plaintiff, is the proper agency for collective bargaining. (Fairbanks Cube Steak House, Inc., v. Viera, 259 App. Div. 804.) The judgment should be reversed, with costs, and the complaint dismissed, with costs. Present — Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ. Judgment unanimously reversed, with costs, 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,