The opinion of the court was delivered by: KNIGHT
This is a motion for summary judgment in favor of the defendants. The notice of motion, returnable March 17, 1952, states 'the plaintiff (sic) will move this Court for a summary judgment in favor of the defendants in the above entitled matter pursuant to the Rules of Civil Procedure' and such other relief as may be proper.
From the affidavits and the oral argument on this motion, the salient facts appear to be that plaintiff and the general contractor entered into an agreement on December 12, 1947, under which plaintiff was to do the painting of the Veterans' Hospital at Buffalo, New York. Before entering into the agreement plaintiff claims to have had a confirmation by defendants that the rate of wages for painters on that job would be $ 1.87 1/2 an hour until and unless the government should issue a change order to take care of any increase in wages. The agreement between the Union Painting & Decorating Contractors of Buffalo, of which plaintiff was a party, and District Council No. 4 of Buffalo and Vicinity, Brotherhood of Painters, Decorators and Paperhangers of America, among other things, contained provisions among other things, contained provisions with respect to employment relating to conditions, hours, wages and arbitration.
Between December 12, 1947, and the date when the general contractor requested plaintiff in December, 1948, to commence painting under the contract with plaintiff, the prevailing wage rate for local painters had been increased twenty-five cents an hour. The attitude of the Union members toward this hospital job was claimed to be such that plaintiff, on December 29, 1948, addressed a letter to Alford J. Farley, Secretary-Treasurer of District Council #4, as follows:
Secretary & Treasurer, District Council #4
'In keeping with Article XI-Section 1 of our Working Agreement, we hereby appeal to your board to avoid a threatened dispute due to a direct violation of Article XII-Section F by the District Council.
'The District Council has allowed the posting of a sign at the 'Day Room' advising members of the Union to 'Stay away' from the E. J. Doyle Painting Company's Veterans' Hospital Job, as the job is a $ 1.87 1/2 hourly rate job.
'We are ready, willing and able to prove to the Joint Trade Board that the prevailing rate of wage established by law for Painters, to be used on the Veterans' Administration Hospital, Buffalo, New York as determined by the Secretary of Labor, is $ 1.87 1/2 per hour.
'As we anticipate starting this job on January 3, 1949, we would like an immediate decision from the Joint Trade Board relative to ...