Bering v. Patterson

2 A.D.2d 820, 155 N.Y.S.2d 514, 39 L.R.R.M. (BNA) 2102, 1956 N.Y. App. Div. LEXIS 4374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1956
• Status: Published

Opinion

Appeal from a final order dated June 27, 1956 directing appellants, constituting the New York City Transit Authority, to revoke and set aside a resolution dated September 14, 1955, which cancelled a collective bargaining agreement between the parties, dated July 1, 1954 and expiring by its terms June 30, 1956 and ordering the Authority to recognize and deal with respondent as a party to such agreement, as theretofore executed, and subsequently modified. Order reversed on the law and the facts, with $50 costs and disbursements, and proceeding dismissed, without costs. The answer to the petition raised issues of fact, and alleged matters by way of defense, which tended to establish that respondent had breached the agreement sought to be enforced in a material respect, and that the Authority had, consequently, terminated the agreement. No reply was served, and the allegations of new matter by way of defense were not put in issue. (Civ. Prac. Act, § 1292.) Consequently, respondent failed to establish a clear legal right to compel the Authority to continue to deal with it during the short period of time which elapsed between the date of the order appealed from and the expiration date of the contract. (Cf. Graves v. White, 87 N. Y. 463, 465; De Forest Radio Tel. & Tel. Co. v. Triangle Radio Supply Co., 243 N. Y. 283; Matter of Colonial Beacon Oil Co. v. Finn, 245 App. Div. 459, affd. 270 N. Y. 591; Matter of Coombs v. Edwards, 280 N. Y. 361; Matter of Ellsworth, Barrows & Co. v. Ward, 255 App. Div. 91; Civ. Prac. Act, § 1295.) No right was or may be established to compel the Authority to continue to recognize or deal with respondent under the contract after its expiration date. Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.