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Anthony Costaro v. Joseph Simons, as President of Newspaper and Mail Deliverers' Union of New York and Vicinity, and Rockaway News Supply Co., Inc., Appellant Anthony Costaro v. Joseph Simons, as President of Newspaper and Mail Deliverers' Union of New York and Vicinity, and Rockaway News Supply Co., Inc.
Per Curiam.
We read the complaint as alleging that the controversy involves unfair labor practices within the purview of the Labor Management Relations Act of 1947 (§8, subd. [a], par. [3]; subd. [b], par [2]; U. S. Code, tit. 29, § 158, subd. [a], par. [3] ; subd. [b], par [2]). That being so, plaintiffs are
[322] under the necessity of resorting in the first instance to the National Labor Relations Board. (See, e.g., Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192, 207; Switchmen’s Union v. National Mediation Bd., 320 U. S. 297, 301; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 404; Meyers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50-51; Matter of Meng, 227 N. Y. 264, 277; Amazon Cotton Mill Co. v. Textile Workers Union, 167 F. 2d 183, 190; National Labor Relations Bd. v. Robbins Tire & Rubber Co., 161 F. 2d 798, 801; see, also, 1 Benjamin on Administrative Adjudication [1942], pp. 365-366.) It follows therefore, that the state courts lack jurisdiction of the complaint and that the motion to dismiss upon that ground should have been granted. In that view, the question as to the sufficiency of the complaint is rendered moot and academic (see Matter of Adirondack League Club v. Board of Black Riv. Regulating Dist., 301 N. Y. 219, 223; Wilmerding v. O’Dwyer, 297 N. Y. 664), and no purpose is to be served by considering the motion upon that ground.
The order of the Appellate Division affirming Special Term’s denial of defendant-appellant’s motion to dismiss the complaint upon the ground that the court lacks jurisdiction of the subject matter of the action should be reversed, the complaint dismissed, and the question certified answered in the negative, with costs in all courts.
The order of the Appellate Division and judgment entered thereon, reversing Special Term’s order denying defendant-respondent’s cross motions to dismiss the complaint for insufficiency and for summary judgment should be reversed, not on the merits, but solely because disposition of the motion to dismiss upon the ground that the court lacks jurisdiction of the subject matter of the action, has rendered the issues moot.
Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ., concur.
Ordered accordingly. [See 302 N. Y. 841.]