Opinion
May 1, 1950.
In an action to restrain violation of respondents' alleged rights of seniority in employment, in which it is alleged that the respondents' bargaining agent breached its fiduciary duty in negotiating a contract with the employer, and that the employer entered into the contract "in collusion" with the agent, order denying appellant's motion to dismiss the complaint for insufficiency and for summary judgment, insofar as appealed from, reversed on the law, with $10 costs and disbursements, and the motion granted, without costs. The allegations of the complaint are not sufficient to state a cause of action against the appellant. The repeated allegation that the respondents' bargaining agent entered into an improvident contract "in collusion" with the employer is a mere conclusion of law, insufficient to set forth any facts showing a wrong or tort committed by the employer. The employer was under no legal obligation to insist upon a contract more favorable to respondents. The respondents have failed to point to any source of creation of rights of seniority. The schedules submitted by the appellant, showing the temporary nature of respondents' employment, and the contract, the verity and conclusiveness of which are not attacked, are sufficient documents under rule 113 of the Rules of Civil Practice, to authorize and warrant summary judgment. Clark v. Curtis ( 297 N.Y. 1014) did not decide that seniority may be enforced where no legal right of seniority exists, nor that seniority rights are created by the mere existence of the employer-employee relationship. Nolan, P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.