Ward Baking Co. v. Bien

264 A.D. 825, 35 N.Y.S.2d 21, 10 L.R.R.M. (BNA) 645, 1942 N.Y. App. Div. LEXIS 4861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1942
• Status: Published

Opinion

Order afSrmed, without costs. Memorandum: While a real labor dispute exists between the parties (May’s Furs & Beady-to-Wear, Inc., v. Bauer, 282 N. Y. 331; Lauf v. Shinner & Co., 303 U. S. 323), and while the order appealed from and the papers on which it is based do not in all respects comply with the provisions of section 876-a of the Civil Practice Act, nevertheless we think the order should be affirmed. We reach this conclusion in view of the offer of the defendants to “ facilitate in every way the transportation and delivery of bakery products and all products necessary or utilized in defense work or for the consumption of military, naval, marine or other recognized defense units, and that no effort will be attempted or permitted to interfere in any way with the above defense needs.” We construe this offer, in effect, as a consent by the defendants to be restrained in respect to that part of the plaintiff’s business having to do, directly or indirectly, with the army, navy and defense industries and with their personnel. This conclusion is strengthened by the 'fact that so far as appears definitely in the record, the plaintiff’s business, which it seeks to protect by restraining order, is almost exclusively concerned with the aforesaid military, naval and defense agencies. The papers present no evidence of serious injury to the rights of the defendants. It is expedient that technicalities shall not interfere with the prosecution of the national war effort. All concur. (The order grants plaintiff’s motion for a temporary injunction restraining defendants during the pendency of the action from interfering with plaintiff’s conduct of its business.) Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.