New York Post Corp. v. Kelley

Conway, J. In the first above-entitled action, plaintiff, a newspaper publisher, seeks a declaratory judgment that the provisions of the New York State Labor Relations Act, hereinafter referred to as N. Y. S. L. R. Act, do not apply to it; that certain newsdealers, licensed by the City of New York, are not its employees; that two organizations, viz.: “ Newsdealers Fed *186 eral Labor Union, Local 22,371 ” and “ New York Newsboys Union, Local 471 ”, each of which claims to be the representative of and to be entitled to be designated as the bargaining agent of the licensed newsdealers, are affiliated with the same parent organization, the American Federation of Labor; that, since there is such controversy between those locals of the same parent body and. since the newsdealers are not its employees, the New York State Labor Eelations Board, hereinafter referred to as the Board, has no jurisdiction to make any investigation or to certify a collective bargaining representative. The complaint alleges in brief that the plaintiff is the publisher of the daily newspaper known as the New Yorlt Post; that the Board has been organized and is existing pursuant to the provisions of section 702 of the Labor Law of our State; that there are upwards of one thousand persons engaged in business in the city of New York as dealers in newspapers, magazines and other articles of merchandise who conduct their businesses on city property pursuant to licenses issued by the Department of Licenses of the City of New York; that those newsdealers are independent retail merchants, many of whom purchase copies of plaintiff’s newspapers from plaintiff and .resell them to the public at a profit; that none of said licensed dealers receives any wages or salary from the plaintiff and that all of them are free to, and do, fix their own hours of labor and are free to determine what newspapers, magazines or other articles of merchandise they wish to sell, without any restriction by the plaintiff; that the dealers conduct their businesses as independent retail merchants, subject only to such restrictions as may be imposed upon them by the city; that none of such dealers is an employee of the plaintiff. The complaint then alleges that, in an action instituted by the People of the State of New York through the Attorney-General in 1941 against Joseph Masiello, individually and as president of Newsdealers Federal Labor Union, Local No. 22,371, et al., as defendants, pursuant to article 22 of the General Business Law, an injunction was issued by the Supreme Court of the State of New York enjoining the defendants therein named from picketing the- places of business of newsdealers engaged in selling the plaintiff’s newspaper and certain other newspapers published in the city of New York, from coercing the *187 newsdealers to refrain from purchasing such newspapers, from distributing circulars representing that the defendants were engaged in a labor dispute, and from otherwise combining and acting in concert to impair, prevent and destroy free competition in the sale and distribution of said newspapers. The complaint then further alleges that the temporary injunction prayed for was granted and that it was then determined that none of the said licensed newsdealers was an employee of the plaintiff herein or of the other newspapers, that the licensed newsdealers were retail merchants, that the controversy between the plaintiff and the other newspapers on the one hand and the licensed newsdealers on the other was one between vendors and vendees, involving no employer-employee relationship and that there was no “ labor dispute ” within the meaning of section 876-a of the Civil Practice Act (People v. Masiello, 177 Misc. 608). It then alleges that there were certain proceedings had before the National Labor Relations Board, Second Región, hereinafter referred to as the National Board, by “ New York Newsboys Union, Local 471 ”, in which it was claimed among other things that the plaintiff had refused to recognize that local as the exclusive bargaining agent of certain licensed newsdealers; that thereafter the petition in that proceeding was withdrawn without prejudice following an informal conference at the office of the National Board at which representatives of plaintiff, other newspapers, and Local 471 were present; that thereafter a petition was filed with the State Board by Local 471 requesting that it be certified as the representative of certain licensed newsboys and newsdealers for the purpose of collective bargaining pursuant to the provisions of section 705 of the N. Y. S. L. E. Act; that thereafter pursuant to request of the Board plaintiff attended at an informal conference together with representatives of Local 471; that the attention of the Board was called to the decision in People v. Masiello (supra) and the fact that it had there been held that the licensed newsdealers were independent merchants and not employees of the plaintiff, but that the Board decided to entertain an amended petition of Local 471 .wherein it was alleged that the aforementioned licensed newsdealers were employees of plaintiff, that there were approximately fourteen hundred of them, and that a question or con *188 troversy had arisen concerning the representation of employees in an alleged bargaining unit referred to therein; that the plaintiff, designated therein as “ the employer ”, had refused to recognize Local 471 as the exclusive bargaining agent of said licensed newsdealers and had refused to bargain collectively with the local union; that thereafter the Board served upon the plaintiff a notice of hearing pursuant to section 705, subdivision 3, of the N. Y. S. L. R. Act and the hearing was finally set down for a particular day; that Newsdealers Federal Labor Union, Local 22,371 (the local involved in People v. Masiello, supra) has intervened in the proceeding before the Board and claims that it is the representative of and should be designated as the bargaining agent of the licensed newsdealers above mentioned; that both local unions are affiliated with the same parent labor organization, namely the American Federation of Labor; that if said licensed newsdealers are held to be employees of the plaintiff so that they fall within the purview of the statute, constitutional rights of the plaintiff will be affected under both the New York State and United States Constitutions. The complaints in the other three actions are substantially the same. The Board answered in each action and then moved under section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice for orders granting judgment that the Board had jurisdiction or dismissing the complaints on the ground that upon the face of the pleadings the defendants were entitled to the relief requested in their answers and upon the further ground that the complaints did not state facts sufficient to constitute causes of action. The relief asked for in the answers was that judgment be made and entered adjudging and decreeing that the complaints be dismissed or in the alternative that defendants have judgment against the plaintiffs. The defendants further moved under rule 113 of the Rules of Civil Practice for orders dismissing the complaints on the ground that the actions had no merit. The motions were denied at Special Term and, upon affirmance, the Appellate Division certified certain questions of law for review by us. We think the complaints state facts sufficient to constitute causes of action for declaratory judgments. Jurisdiction over such actions has been confided to the Supreme Court, which is *189 our highest court of general and original jurisdiction, and the field in which such actions may be brought is very broad. (Civ. Prac. Act, § 473; Rules of Civil Practice, rule 212; Bank of Yorktown v. Boland, 280 N. Y. 673; New York Operators v. State Liquor Authority, 285 N. Y. 272; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Bun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; All American Bus Lines, Inc., v. City of New York, 296 N. Y. 571; Booth v. City of New York, 296 N. Y. 573; Stampers Arrival of Buyers, Inc., v. City of New York, 296 N. Y. 574; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499; Quaker Oats Co. v. City of New York, 295 N, Y. 527, 533.) There was no disagreement below as to the fact that the complaints stated causes of action. The dissenting Justice in the Appellate Division conceded that, but was of opinion that the discretion exercisable by the Supreme Court should have been exercised in favor of the Board. Where no mandatory statute is applicable, the Supreme Court determines its own practice. (Judiciary Law, § 82.) Rule 212 of the Rules of Civil Practice reads as follows: “Rule 212. Jurisdiction discretionary. If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised.” This court is one of review, and we may not reverse the orders because of the exercise of the discretion committed to the Supreme Court through legislative provision unless we may say that there was an abuse of discretion as a matter of law. For an administrative agency which answered without making any request to the Supreme Court under rule 212 to decline to take jurisdiction and then boldly moved for judgment on the pleadings and under rule 113, there is hardly room for the argument that the exercise of discretion to pass upon the motions so made and then to deny them was error as a matter of law. The following, from Rockland Light & Power Co. v. City of New York (Lehman, Ch, J.), supra, p. 50, is apposite here: “ The sufficiency of the complaint has been sustained as a pleading. The order accomplishes nothing more. The order must be affirmed, regardless of the merits of the controversy pr the scope of the plaintiff’s rights, if we conclude that the complaint in an action for declaratory judgment *190 should- not be dismissed as 1 matter of law ’ where the facts alleged show the existence of a controversy concerning ‘ rights and legal relations ’ and where it appears that the discretionary and extraordinary powers of the court have been invoked for a sufficient reason.” Upon the controverted facts presented on those portions of the motions which were brought under the Rules of Civil Practice, rule 113, there can be proper determinations only after trial. In each of the above-entitled actions the order should be affirmed, with costs, and the questions certified answered in the negative.