Howell v. Branigan , 239 A.D. 789 ( 1933 )

Judgment reversed on the law and the facts, with costs, and the complaint dismissed, with costs. Appeal from the order amending the complaint dismissed. There is no proof in this case that the defendant intimidated or threatened to intimidate the union masons and bricklayers upon the construction work involved in this action or upon any future work contemplated by the plaintiffs. To the contrary, the proof is that both jobs were practically completed at the time of the trial by members of the defendant association with its consent, clearly establishing that the defendant did not commit, attempt or threaten to commit the unlawful acts enumerated in the judgment and from the commission of which it is enjoined. The judgment cannot be justified upon the theory that the defendant is not harmed by the prohibition of unlawful acts not committed but only claimed to be possible of commission. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260.) Findings of fact and conclusions of law inconsistent with this determination are reversed and new findings will be made. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur. Settle order on notice.