
    Otto Scivoletti et al., Respondents-Appellants, v. Sal Leckie, Individually and as President of Bartenders and Hotel and Restaurant Employees, Local 164, et al., Appellants-Respondents.
   In an action to enjoin defendants, respectively, as president, treasurer and general organizer of a local union, from refusing to recognize plaintiffs as members in good standing, and for other relief, the parties cross-appeal from the judgment entered after trial. Judgment modified on the law and the facts, by adding thereto a provision dismissing the second and fourth causes of action contained in the complaint, and by striking therefrom the fourth and fifth decretal paragraphs awarding money damages to each of the plaintiffs. As so modified, judgment unanimously affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, there was no proof offered before, or accepted by the Trial Justice in support of the second and fourth causes of action for the recovery of money damages as a consequence of a conspiracy by the defendants Leckie and Isaacson to deprive the plaintiffs of their status and rights as union members. The plaintiffs were not entitled to the recovery of money damages from the defendant local union as a consequence of their unlawful deprivation by the individual defendants of their seniority rights since it was not shown that the general membership participated in the breach of contract or the tort upon which the plaintiffs predicated their right to relief (Martin v. Curran, 303 N. Y. 276, 281-282; Browne v. Hibbets, 290 N. Y. 459; Glauber v. Patof, 294 N. Y. 583), or that some fraud, misconduct or bad faith on the part of the membership as a whole resulted in pecuniary injury to the plaintiffs (Havens v. King, 221 App. Div. 475, 481-482, affd. 250 N. Y. 617; Schmidt v. Rosenberg, 49 N. Y. S. 2d 364, affd. 269 App. Div. 685). In the absence of rebuttal proof by the defendants, who rested at the end of the plaintiffs’ case, and in view of their refusal to produce the bargaining agreement with the plaintiffs’ employer and their position that secondary evidence be offered with respect thereto, the Trial Justice was free to credit plaintiffs’ version of a closed-shop agreement and procedure which allowed none but union members assigned by the individual defendants Leckie and Isaacson to work for the employer. He was also free to credit plaintiffs’ unrebutted explanation of their seniority rights in their jobs and of the curtailment thereof by the defendant Isaacson, and to conclude that a formal procedure by plaintiffs to override Isaacson’s flat would be a futile effort which the law does not require a union member to pursue (Browne v. Hibbets, 290 N. Y. 459, 466, supra-, 87 C. J. S., Trade Unions, § 38; Madden v. Atkins, 4 A D 2d 1). Present —Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.  