Phalen v. International Alliance of Theatrical & Stage Employees

27 A.D.2d 909, 278 N.Y.S.2d 667, 1967 N.Y. App. Div. LEXIS 4463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1967
• Status: Published

Opinion

Order entered on September 7, 1966 denying cross motion of respondent-appellant reversed on the law, and cross motion to dismiss petition granted, without costs or disbursements. In the absence of a violation of a statutory duty, an article 78 proceeding for mandamus does not lie. This is the present state of the law in this State, according to an unbroken line of precedents. The learned court below indicated its awareness of this, but opined that because of socio-economic changes vis-a-vis unions, there should be a change. That may very well be, and the cause, indeed, may be just, but achieving such a change by judicial fiat is beyond the competence of this court. Redress should come from the Legislature. (See CPLR 7803, subd. 1; Matter of Weidenfeld v. Keppler, 84 App. Div. 235, affd. 176 N. Y. 562; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115, 121; Simons v. Berry, 210 App. Div. 90, 93; Oliphant v. Brotherhood of Locomotive Firemen & Enginemen, 156 F. Supp. 89, affd. 262 F. 2d 359, cert. den. 359 U. S. 935.) Further, the grievance of these petitioners is arguably within the ambit of the National Labor Relations Act, as indicated by their own previous recourse to this statute, although subsequently withdrawn. However, there is no purpose in pursuing this point, as the main reasons (supra) for rejecting the order are rudimentary. Concur —■ Tilzer, McNally and MeGivern, JJ.; Steuer and Rabin, JJ., dissent and vote to affirm on the opinion of Markowitz, J., at Special Term. [51 Misc 2d 334.]