
    David J. Barzilay and Mark Harris, Respondents, v. Adolph Loewenthal, as President of the “Cloth Examiners and Spongers’ Union of Greater New York,” Appellant.
    First Department,
    November 19, 1909.
    Injunction pendente lite — granting full relief on order to show cause — party.
    In a suit by certain members of an employers’ association to compel an unincorporated union of workmen to carry out an agreement to supply the members of the association with men, the court is without power, upon the return of an order to show cause why the defendants should not be enjoined pendente lite, to direct them to supply the plaintiffs with men during the pendency of the agreement.
    
      It seems, that no one but the employers’ association can enforce the agreement and it is doubtful whether it can be enforced by injunction at all.
    Appeal by the defendant, Adolph Loewenthal, as president, etc., from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 28th day of June, 1909, granting a temporary injunction.
    
      Leon M. Prince, for the appellant.
   McLaughlin, J.:

The complaint in this action alleges in substance that on the, 22d day of ¡November, 1907, the Cloth Spongers Employers’ Association, of which the plaintiffs are members, and the Cloth Examiners and Spongers’ Union of Greater New York, both being unincorporated associations, entered into an agreement, a copy of which is annexed to the complaint, by the terms of which the union agreed, among other things, to “ furnish to members of the ‘ Association ’ such competent help as may be required; ” that the union has violated the agreement and wrongfully refused to furnish to the plaintiffs such competent help as they required; that it is impossible for them to secure such competent help except through the union and their business has been irreparably damaged. , The judgment asked is that the union, its officers and members, be required to supply to the plaintiffs such competent help as may be required, and enjoined from further violating the terms of the agreement.

The plaintiffs secured an order to show cause why an injunction pendente lite should not be granted, the only reason for requesting such an order stated in the moving affidavit being “ because plaintiffs desire a temporary injunction as aforesaid, having given the undertaking required by law.” Upon the return of the order the order appealed from was made, which is “ that the defendant supply these plaintiffs with such employees who are members of its union, who are not employed at the present time, * * * during the pendency of the agreement between the defendant and the Cloth Spongers Employers’ Association bearing date November 22nd, 1907.”

There are many objections to this order. It is by no means certain that the complaint states a cause of action, for besides technical defects it is doubtful whether any one but the association could enforce the terms of the agreement, or whether it could be enforced by injunction at all. The agreement is recited to be under seal, and if that is so the plaintiffs certainly could not bring any action thereon. (Henricus v. Englert, 137 N. Y. 488.) In any event, however, the order could not stand because it enjoins the defendant, not during the pendency of the action, but during the pendency of ike agreement, which was to last until December 31, 1910. ’ It thus grants the very relief demanded in the complaint, the right to which can be determined only upon the trial of the action. (Oppenkeim v. Thanasoulis, 123 App. Div. 494.)

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, JJ., corteurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  