286 A.D. 851 | N.Y. App. Div. | 1955
Appeal from an order denying a motion to stay respondent from proceeding with an action for breach of a contract of employment. Order affirmed, with $10 costs and disbursements. The collective bargaining agreement between the union, of which respondent was a member, and the employer, insofar as justifiable discharge or discipline was concerned, did not give rise to a right in the respondent to seek arbitration or to require the union to seek arbitration at his request. A dispute by the union with the employer as to the right to discharge for respondent’s conduct was a condition precedent to any duty to have arbitration. The papers on appeal, which disclose that there was no dispute by the union do not disclose why the union refused to dispute or that the union decided it had no ground for dispute, or that the union agreed with the employer that respondent’s conduct justified discharge. Special Term properly held that the merit of respondent’s action or the sufficiency of his complaint were not matters for determination on this motion for a stay. MaeCrate, Acting P. J., Schmidt, Beldoek and Ughetta, JJ., concur; Murphy, J., dissents and votes to reverse the order and to grant the motion, with the following memorandum: The collective bargaining