
    Elias Tsakires et al., Copartners under the Name of The Cosmo Cafeteria, Respondents, v. William Mesevich, Individually and as President of Cafeteria Employees Union, Local 302, et al., Appellants.
    Argued October 19, 1942;
    decided January 21, 1943.
    
      Louis B. Boudin and Irving B. Feinberg for appellants.
    The facts in this case are essentially the same as those in Angelos v. Meservich (289 N. Y., 498 [immediately preceding]), differing only in minor matters which have no bearing upon the merits of the case. The record establishes the allegations of bad faith and fraud contained in the answer and that the employer-employee relation still exists between the former employer as employer and the other plaintiffs as employees. Section 876-a of the Civil Practice Act applies not only to existing labor disputes, but to cases growing out of labor disputes. The plaintiffs failed to comply with the requirements of section 876-a and their suit could only be sustained upon the theory that no labor dispute was ever involved. Since that is not claimed, and the trial court expressly found to the contrary, the complaint should have been dismissed under the provisions of section 876-a.
    Peaceful picketing for a legitimate labor union objective, such as unionization, may not be enjoined by the courts.
    
      David L. Delman for respondents.
    This appeal involves the identical questions of fact and law as the companion appeal, where the plaintiffs are Gus Angelos, et al., against the same defendants. (Angelos v. Meservich, 289 N. Y. 498.) None of the provisions of section 876-a of the Civil Practice Act are applicable to these plaintiffs and under no theory can it be said that a labor dispute exists at the place of business of these plaintiffs or between them and the defendant.
   Rippey, J.

The controlling facts in this case do not substantially or materially differ from those in the case of Angelos et al., against the same defendants in which a decision is being handed down herewith. (Angelos v. Mesevich, 289 N. Y. 498.) The unlawful conduct of defendants here found to exist is similarly subject to judicial restraint.

The judgment appealed from should be affirmed, with costs.

Desmond, J.

(dissenting). This case is so nearly identical with Angelos v. Mesevich, decided herewith, that it should follow the same course. The judgment should be reversed and the complaint dismissed, with costs.

Finch, Lewis and Conway, JJ., concur with Rippey, J., Desmond, J., dissents in opinion in which Lehman, Ch. J., and Lough-ran, J., concur.

Judgment affirmed.  