47 Misc. 2d 426 | N.Y. Sup. Ct. | 1965
By notice dated November 13, 19-64 the defendants, other than the defendant Dairymen’s League Cooperative Association, Inc., move for dismissal of the complaint upon the ground that the court has not jurisdiction of the subject matter and the complaint is legally insufficient. By notice of November 30, 1964, defendant Dairymen’s moves for dismissal of the complaint as to it upon the ground that it fails to state a cause of action. By further notice of March 8, 1965 the defendants, other than the defendant Dairymen’s, move for dismissal on the ground that a prior action is pending, and the prior complaint between the same parties was dismissed pursuant to CPLR 3211 (subd. [a], par. 7) and leave to replead was neither requested nor granted. The motions are considered together.
It may be noted preliminarily that a final order of dismissal of a complaint for insufficiency does not preclude another action upon the same transaction merely because there was no compliance with CPLR 3211 (subd. [e]) and leave to replead was not granted. The second action is maintainable if the complaint is good. The complaint in this action is by no means similar to the complaint in the first action and it is good. The prior action it is said, is pending because an appeal has been taken from the order of dismissal. However, leave has been granted to withdraw that appeal and therefore the prior action is not now pending.
Accordingly, plaintiff is entitled to maintain this action upon the basis as to the employer of the alleged conspiracy and against the union because of alleged futility of appeal and the presence of unfair representation. In these circumstances, too, upon proof of the allegations, liability is imposable on the union without suit against all the members. The conspiracy and wrong arises directly out of duty and performance in breach thereof. (See Madden v. Atkins, 4 N Y 2d 283, supra.)
The motions are denied in all respects.