Ernest J. Michel & Co., Inc. v. Anabasis Trade, Inc.

Jun 24, 1980
Versions:50 N.Y.2d 951
409 N.E.2d 933
431 N.Y.S.2d 459
1980 N.Y. LEXIS 2502
29 U.C.C. Rep. Serv. (West) 55

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

*952 We agree with the Appellate Division that appellant buyer, by its affirmative actions, agreed to submit all disputes arising out of the contracts in issue to arbitration. An agreement to arbitrate was manifested by appellant by signing the first confirmation of order form with admitted knowledge that an arbitration clause was contained therein and, thereafter, by receiving and retaining six additional confirmations of orders on the same contract form without objection except for a request for one change as to credit terms, which change was made by the respondent seller. (See Uniform Commercial Code, § 2-204, subd [1]; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1.)

Matter of Marlene Inds. Corp. (Carnac Textiles) (45 NY2d 327) is clearly distinguishable. There, contradictory contract forms were exchanged between the parties; neither party had signed the other’s form and no evidence existed that the recipient of the contract containing the arbitration clause was aware of its presence or had agreed to arbitrate.

Chief Judge Cooke and Judges Jasen, Jones,. Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli concurs on constraint of Schubtex, Inc. v Allen Snyder, Inc. (49 NY2d 1).

Order affirmed.