279 A.D. 580 | N.Y. App. Div. | 1951
In this action for a declaratory judgment, defendants appeal from an order of Special Term denying their motion to dismiss the complaint. On another appeal between the same parties decided herewith (post, p. 581) this court unanimously affirms a prior order of Special Term denying plaintiffs’ motion to stay arbitration and granting defendants’ cross motion to stay this action.
The contract in question coneededly contained a broad arbitration clause submitting “ any ” controversy to arbitration. Plaintiffs do not allege that the contract was procured by fraud or duress nor do they ask that it be rescinded or annulled but only that certain paragraphs be declared void and unenforcible including the arbitration clause. On the facts and circumstances of this case, all issues in the controversy between the parties including the validity, application or limitation of the covenants in question, are for the arbitrators who may if they deem it proper decide such issues either in plaintiffs’ or defendants’ favor. On the coming in of the award the parties will have opportunity to raise any question as to its scope and enforcement. The court in its discretion should not take jurisdiction of this action for declaratory judgment as other forms of relief are available for adjudication of plaintiffs’ claims.
The order appealed from denying defendants’ motion to dismiss the complaint should be reversed, with $10 costs and disbursements to defendants-appellants, and the motion granted.
Peck, P. J., Glennon, Dore, Cohn and Shientag, JJ., concur.
