309 N.Y. 551 | NY | 1956
The board of education as “ Owner ” entered into a contract with two architectural firms; Ervay J. Baker of Hammond sport, New York, the appellant, and White and Helm of Geneva, New York, as “ Architect ” in connection with the construction of school buildings at Bath, New York. The con
Baker filed two claims against the board of education, dated November 30, 1953. The first claim sought the payment of fees due to the associated architects. The second claim covered only Baker’s share of the fees plus his disbursements and was founded on the theory of board liability arising from the board’s action in compelling White and Helm to sever their association with Baker. Upon the rejection of the claims, Baker requested White and Helm to join him in demanding arbitration. When White and Helm failed to reply, Baker served, in his own name, a demand for arbitration on the board and provided White and Helm with copies of the demand. The board and White and Helm moved separately to stay permanently the demand for arbitration. The motions were granted and the orders entered staying arbitration have been affirmed.
The board contends that none of the questions propounded in the notice of intention to arbitrate concern a dispute with the board.
The questions are based on the actions of the board in settling with the contractor without a certificate approving payment executed by Baker and in discharging Baker, coupled with a refusal to compensate him or reimburse him for expenses allegedly incurred, as provided for by the owner-architect contract.
It is our view that a bona fide dispute exists which must be arbitrated pursuant to clause 12 of the contract. Any differences between Baker and the contractor or Baker and his associate architect, ‘ ‘ White and Helm ’ ’, arose out of the performance on his part of his duties under the contract. The dispute, therefore, is between Baker and the board as to the propriety of their respective acts. Since the disputes are within the scope of the arbitration clause, they must be settled by arbitration, if demanded by either party. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199, 202; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Bohlinger [National Cash Register Co.], 305 N. Y. 539.)
As an arbitrable dispute exists between the owner and the architect, we must now determine whether Baker is entitled to demand arbitration without the acquiescence of ‘ ‘ White and Helm ” or White or Helm. The contract gives “ either party ” the right to compel arbitration. The enforcement of the right to arbitration of the architect party turns on the composition of the association of the architects in this case. Were there three equal partners, Baker, White, Helm, all individuals; or were there two equal partners, Baker, an individual and “ White and Helm ”, a partnership! A partnership, as such, can be a member of another partnership, if that be the intent of the parties. (Uniform Partnership'Act, Commissioners’ Note, § 6; 7 Uniform Laws, p. 11; Houston v. McCrory, 140 Okla. 21; Replogle v. Neff,
There is no merit to the objection that the notices of claim are defective in that they failed to comply with section 3813 of the Education Law, because they were filed in Baker’s name rather than that of the architect’s. We find no rigid requirement imposed by the statute in such specific terms. Hence, according to the weight of authority, all that is required is a substantial compliance with the statute. (6 McQuillin on Municipal Corporations [2d ed.], § 2895; Schwartz v. City of New York, 250 N. Y. 332.) The original notices were more than sufficient to fully apprise the board of the notice of the claim asserted against it.
Our disposition of this appeal does not require us to discuss the notice of claim filed subsequent to the granting of the motions to stay the arbitration made in the first proceeding.
Inasmuch as we do not pass upon the merits of the decisions made in connection with the subsequent claim, the proper practice here is to reverse the later order of the Appellate Division in the second proceeding, and to remit the proceeding to Special
The orders of the Appellate Division entered January 5, 1955, should be reversed, and the proceedings remitted to Special Term with directions to deny the motions on the merits, with costs, and the order of the Appellate Division dated March 23, 1955, should be reversed, and the proceedings remitted to Special Term with directions to dismiss the motions, not on the merits, but on the grounds that the issues are moot, with costs.
Conway, Ch. J., Desmond, Fuld, Froessel and Van Voorhis, JJ., concur; Dye, J., taking no part.
In each proceeding: Order of Appellate Division reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.