38 Misc. 2d 423 | N.Y. Sup. Ct. | 1962
This motion for reargument is granted. It seems clear that counsel for respondent did note a special appearance at the time he requested an adjournment, for the purpose of making the motion required by section 237-a of the Civil Practice Act. There has been no general appearance by respondent, since the request for an adjournment was made as an incident to a special appearance and was promptly followed up by the motion to vacate service, pursuant to section 237-a of the Civil Practice Act, for lack of jurisdiction of the person of respondent. Where an adjournment is obtained as an incident to a special appearance, it is not a waiver of the right to attack the jurisdiction (Thompson v. Mundheim, 180 Misc. 1002, 1004). The contention, that an affidavit submitted by the respondent makes references to the merits of the controversy between the parties and therefore constitutes a waiver of the special appearance, is overruled. The affidavit was submitted solely for the purpose of attempting to establish that the contract containing the arbitration provisions had been procured by fraud, it being respondent’s contention that it is, therefore, not bound by the arbitration provisions. No attempt was made to oppose the arbitration on the merits, notwithstanding the references to the merits in the affidavit above referred to. A special appearance is waived by opposing the relief sought on grounds relating to the merits, but not by mere references to the merits, which are not made the basis of opposition to the relief sought.
In Matter of Gantt (Hurtado & Cia) (297 N. Y. 433) the contract made in North Carolina provided for arbitration which “ shall be held in New York, N. Y.” (p. 436). The Court of Appeals declared that an agreement for arbitration “ relates to the law of remedies, and the law that governs remedies is the law of the forum ” (p. 439). Accordingly, the court affirmed an order denying motion to stay arbitration although, under North Carolina law, a contract to arbitrate future controversies would not be enforced. It is true that the court indicated that if the provision for arbitration were absolutely void under North Carolina law, a different conclusion would have been reached. However, it is important to note an important distinction between the Gantt case (supra) and the case at bar. In the Gantt case, although the contract provides for the holding of the
The parties having expressly indicated their intent that the arbitration clause should be construed according to the law of New York where one of them resides a'nd where the contract was made, there appears to be no valid reason for frustrating their desire and holding that some other law shall apply.
The claim that the contract was procured through fraud and that it is, therefore, not binding on respondent is not shown
The original determination denying the motion to vacate service, is accordingly adhered to. Respondent may answer on the merits within ’5 days from the service of a copy of this order with notice of entry. The prior determination of the motion to compel arbitration is likewise adhered to.