
    Delaware, Lackawanna & Western Railroad Company, Respondent, v. Marion J. Slocum, as General Chairman of Lackawanna Division No. 30 of the Order of Railroad Telegraphers, Appellant, et al., Defendants.
   This is an appeal by Marion J. Slocum, as General Chairman of Lackawanna Division No. 30 of the Order of Railroad Telegraphers, from a declaratory judgment of the Supreme Court, Chemung County, entered on March 7, 1946, which declared that the crew callers in the Elmira Yard Office of the plaintiff and the positions held by them and the work assigned to them by the plaintiff are within the plaintiff’s agreement with the clerks’ union and not within the plaintiff’s agreement with the telegraphers’ union. The judgment further declared that the telegraphers’ union and its general chairman and members are estopped by their acts and conduct as well as by their agreement from claiming such positions or any part of the work assigned to said crew callers. Although the National Railroad Adjustment Board is a proper body to hear controversies arising under employment contracts pursuant to the Railway Labor Act (U. S. Code, tit. 45, § 151 et seq.), nevertheless, State courts are not deprived of jurisdiction under the circumstances of this case. (Delaware, Lackawanna & Western R. R. Co. v. Slocum, 269 App. Div. 467; Moore v. Illinois Central R. R. Co., 312 U. S. 630.) The Pitney case (Order of Ry. Conductors v. Pitney, 326 U. S. 561) upon which appellant relies was a decision relating to the dual capacity of the court, but did not overrule the holding of the Moore case (supra). The dispute between the parties arose mainly under the construction of agreements entered into between the railroad and the Order of the Railroad Telegraphers, and also between the railroad and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. The court below properly construed the contracts and had the power in its discretion to declare the rights and legal relations of the parties by declaratory judgment. (Civ. Prac. Act, § 473.) Judgment appealed from unanimously affirmed, with costs. Present— Hill, P. J., Brewster, Foster, Russell and Deyo, JJ. [See post, p. 1076.]  