The opinion
Desmond, J.
(dissenting). By this declaratory judgment the Supreme Court of this State, has, at the suit of plaintiff railroad company, construed the labor agreements of plaintiff with two defendant railway unions and, in an attempt to settle a jurisdictional dispute between those unions, has held that under such agreements one of the unions (Brotherhood of Clerks, etc.) is entitled to claim, as against the other (Railroad Telegraphers), certain jobs in the service of plaintiff railroad company at its Elmira, N. Y., yard office. The Supreme Court of the United
*509
States, however, ruled, in
Order of By. Conductors
v.
Pitney
( 326 U. S. 561 ) that under the applicable Federal statute (Railway Labor Act; U. S. Code, tit. 45, § 151
et seq.)
such determinations are not the business of the courts but of the Railroad Adjustment Board set up by Congress in that statute. The
Pitney case (supra)
as I read it, makes this plain and clear. The Supreme Court said (326 U. S., p. 566):
“
Not only has Congress thus designated an agency peculiarly competent to handle the basic question here involved, but as we have indicated in several recent cases in which we had occasion to discuss the history and purpose of the Railway Labor Act, it also intended to leave a minimum responsibility to the courts.” The basic question in the
Pitney
case was exactly the question here, and the Supreme Court said in so many words that the United States District Court should not have interpreted the labor agreements for the purposes of adjudicating the dispute between the unions and the railroad, but should have left all that to the Board. The Supreme Court pointed out ( 326 U. S. 566 ) that in order to decide that basic question, the court would have to interpret the collective bargaining agreements in dispute, and that such interpretation involved more than the mere construction of a document but had to be made in the light of other agreements and in the light of usage, practice and custom. In two recent cases, the Eighth Circuit Court of Appeals has construed the
Pitney
decision to mean just that, and in each instance the Supreme Court denied certiorari
(Order of R. R. Telegraphers
v.
New Orleans, Texas Mexico Ry. Co.,
156 F. 2d 1 , certiorari denied 329 U. S. 758 ;
Missouri-Kansas-Texas R. R. Co.
v.
Randolph,
164 F. 2d 4 , certiorari denied 334 U. S. 818 ). A number of Federal District Court opinions are of like tenor (see for instance
Illinois Central R. R. Co.
v.
Brotherhood of R. R. Trainmen,
83 F. Supp. 930, 933 ).
In the
Pitney
case
(supra),
the Federal District Court, sitting-in bankruptcy, had construed contracts of the railroad with the two unions involved as meaning that one of those unions should have the contested jobs, and the petition of the other union Avas, accordingly, dismissed. The Circuit Court of Appeals ( 145 F. 2d 351 ) reversed the District Court, holding that the petition should be dismissed not on the merits, but on jurisdictional grounds, holding that the remedies of the Railway Labor Act
*510
were exclusive. The Supreme Court then took the
Pitney
case in certiorari. It said ( 326 U. S. 567 ) that the District Court could not interpret the agreements but could do no more than hold the case until the Adjustment Board should hand down such an interpretation, at which time, the Supreme Court said, the District Court might, depending on the situation thqn existing, use its discretionary powers to grant an injunction if appropriate. In the case we have before us, the trial court granted no injunction or other relief — its judgment is nothing more or less than a declaration as to the meaning of these collective bargaining agreements and their application to the facts. In other words, the trial court did, here, exactly what the Supreme Court said it was improper for any court to do: take unto itself a function reserved by Congress to the Adjustment Board. It does not seem to me to make any great difference whether we label this 6 6 want of jurisdiction ” or
“
abuse of discretion Whatever be the appropriate label, this declaratory judgment cannot, under the rule of the
Pitney
case, stand, and we are just as much bound to reverse for this kind of abuse of discretion (see
Colson
v.
Pelgram,
259 N. Y. 370, 377 ) as for an absolute lack of jurisdiction. The fundamental question here is the one stated by the Supreme Court under different circumstances in
California
v.
Zook
( 336 U. S. 725, 729 ):
“
does the state action conflict with national policy? ” The national policy here has been formulated by Congress and declared by the Supreme Court. The supremacy clause (U. S. Const., art. VI) and ordinary comity
(Bourjois Sales Corp.
v.
Dorfman,
273 N. Y. 167, 171 ) prevent the State courts from following a different one, of their own making.
It is of course true that, in the
Pitney
case
(supra),
the Supreme Court dealt with another, separate, question besides the one above set out. The railroad, in the
Pitney
case, was in bankruptcy and was being operated by trustees appointed by the District Judge, so that, besides its ordinary judicial function, the District Court had the power and the duty to instruct the trustees in the running of the railroad. The Supreme Court held that, acting in the latter-role,
“
the District Court had supervisory power to instruct its trustees ” as to these contracts. The Supreme Court, however, was at pains to point out that the court’s instructions to its trustees were
“
no more binding on
*511
the Adjustment Board than the action of any other carrier ’ ’ and said flatly that despite the court’s power and duty to give such instructions, it 16 should not have interpreted the contracts for purposes of finally adjudicating the dispute between the unions and the railroad ”, and ordered the District Court to hold the case until the union’s petition could go to the Adjustment Board and the agreements could be there interpreted (326 U. S., pp. 567, 568). The
Pitney
opinion, therefore, deals with two separable and separated questions, and its holding that the dispute had to go to the Adjustment Board was not based on, or in any way affected by, the circumstance that the particular railroad was being operated by agents of the District Court. Justice Rutledge’s dissenting opinion in the
Pitney
case agrees that the matter of interpretation was not for the court, but goes further and urges that the court should grant a temporary injunction to preserve the
status quo
in all respects until the Adjustment Board should hand down its decision.
Moore
v.
Illinois Central R. R. Co.
( 312 U. S. 630 ) decided five years before the
Pitney
case
(supra)
— the majority opinions in •both cases were written by Justice Black — is not mentioned in the
Pitney
opinions and does not conflict at all with the
Pitney
rule. The
Moore
case was, as the Supreme Court itself described it in
Order of R. R. Telegraphers
v.
Railway Express Agency
( 321 U. S. 342, 348 ) “ a common-law action to recover wages”. In other words, Moore, a railroad employee, brought, as was his absolute right, a common-law action for damages for an alleged wrongful discharge. The Supreme Court held that the Railway Labor Act grant of exclusive jurisdiction to the Board to construe railway labor contracts, did not prevent the bringing of such a suit and that, once the suit was properly before the court, it had to be decided; and, if the course of decision required an interpretation of contracts, the common-law court could make such a construction. But when, as here, the sole purpose of the suit, and the sole judgment entered, is a statement of the meaning of such contracts, then there is nothing that a court may or should do except see to it that the dispute goes to the Adjustment Board where it belongs. If the Supreme Court in the
Pitney
case had concluded that the
Pitney
situation was the same as the
Moore
situation except for the circumstance that the railroad in the
Pitney
case was in bankruptcy, the court certainly would
*512
have said so, and not let the
Moore
case go unmentioned in the
Pitney
opinion.
The judgment should be reversed, with costs.
Loughran, Ch. J., Lewis, Dye and Bromley, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Fuld, J., concurs.
Judgment affirmed.