Opinion
October 24, 1955.
Appeal from an order granting respondents' motion for an injunction pendente lite restraining appellants from engaging in picketing and other activities, and denying appellants' cross motion to dismiss the complaint on the ground that it appears on the face thereof that the court does not have jurisdiction of the subject matter of the action. The activities sought to be enjoined are claimed to be for the purpose of compelling respondents to sign a collective bargaining agreement with appellants' union, which has not been certified and which does not in fact represent a majority of respondents employees. A petition for investigation and certification of the collective bargaining agent for the majority of said employees is pending and undetermined before the National Labor Relations Board. Order modified by deleting therefrom the last two ordering paragraphs, and as so modified, affirmed, without costs. The matter is remitted to Special Term for immediate hearing before the court or an official referee to determine the purpose of the picketing, whether lawful or unlawful, and whether all picketing should or should not be enjoined, and for the further purpose of determining whether the other activities of the union should or should not be restrained. The disputed issues as to the purpose and nature of the picketing, and as to the nature and effect of the other activities complained of cannot be determined on the affidavits in this record. ( Palermo v. Motto, 283 App. Div. 746. ) On the other hand, for purposes of the cross motion, the allegations of the complaint are deemed to be true and are sufficient, if proved on the trial, to require the granting of an injunction by the State courts. ( Goodwins, Inc., v. Hagedorn, 303 N.Y. 300.) In our opinion the controlling effect of the case cited has not been overruled by Garner v. Teamsters Union ( 346 U.S. 485). See Palermo v. Motto ( supra); Wood v. O'Grady ( 307 N.Y. 532), both decided after the decision of the Supreme Court in the Garner case. It is stated in the briefs, but does not appear in the record, that a rehearing of this matter has been had at Special Term, at which much additional evidence may have been introduced. The disposition of this appeal is not intended to have any effect whatsoever upon any order which may have been entered on such rehearing. Wenzel, Acting P.J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur. [See post, p. 1104.]