308 F. Supp. 1107 | S.D.N.Y. | 1970
The petitioner, a member firm of the New York Stock Exchange, moved pursuant to the Arbitration Act
The arbitration involved the respondent’s claim for money allegedly due him upon his withdrawal from the petitioner and the latter’s counterclaim for damages resulting from the respondent’s alleged disloyalty in violation of the parties’ partnership agreement. The arbitrators awarded the respondent $68,965.-29, assessed $600 costs against the peti
The petitioner is a limited partnership organized under New York law. It consists of three general partners and one limited partner. The general partners are all citizens of New Jersey.
The fourth article of the partnership agreement provides: “The co-partnership shall conduct a business of general brokerage in stocks, bonds and other securities and in commodities usually traded or dealt in on National. Exchanges and in the over the counter markets, and in the purchase; sale, investment and dealing in stocks, bonds and other securities and in commodities and in acting as specialists on National Exchanges; and, in general the copartnership shall engage in such business as is usually conducted by Exchange brokers, securities dealers and Exchange specialists in the City of New York and wherever else the firm may hereafter do business.”
The court has jurisdiction.
The arbitration was conducted in accordance with the Constitution and Rules of the Exchange which require that controversies between members be submitted for arbitration by five members of the Board of Arbitrators of the Exchange. This board consists of fifteen members of the Exchange appointed after each annual election by the Chairman of the Board of Governors, subject to that board’s approval.
Prior to the respondent’s withdrawal from the petitioner he was its floor specialist in a small number of securities. Shortly after his withdrawal he became a partner and floor specialist of Spear, Leeds and Kellogg, a prominent member firm whose members or representatives are floor specialists in a large number of securities. James C. Kellogg of that firm was, at some unspecified prior time, Chairman of the Board of Governors of the Exchange. It was not shown nor indeed was it contended that he appointed any of the arbitrators who sat in this case to the Board of Arbitrators or that he or anyone in his firm or on his behalf caused any of them to be so
At the start of the first session the petitioner’s counsel moved the arbitrators orally on two grounds to dismiss the proceeding and remit the parties to their remedies at law, pursuant to the following provision in Section 7 of Article VIII of the Exchange’s Constitution: “The arbitrators in any case may at any time during the proceedings, and shall upon the joint request of the parties thereto, dismiss the proceedings and refer the parties to their remedies at law.”
“a party of the other side, a partner of Mr. Wiest, a person whose conduct I shall feel called upon to criticize in the course of the proceedings, is a very well known member of the Exchange, Mr. Kellogg, former Chairman of the Board of Governors. Mr. Garfield, on the other hand, is a relatively little known member of the Exchange and I doubt very much if any of you have had occasion to do business with him. On the other hand, I am sure that you all have had occasion to do business, and perhaps regularly do business, with Spear, Leeds & Kellogg, of which Mr. Kellogg is the leading partner.
“I do not want to seem to reflect upon your fairness and the honesty and the confidence with which you will approach the issues in this case but I do suggest, however, under such circumstances as exist here, it is a kind of embarrassment dealing, on the one side, with a person one knows, with one whose firm does business with and, on the other hand, a person of whom one knows very little, perhaps have never known of at all until this proceeding came along.”12
The second ground of the motion was that the controversy involved legal principles whose application although “relatively simple for a court of law might prove to be difficult for [the arbitrators.]” The only arbitrator who commented on the motion was the panel chairman who said: “On behalf of the Arbitrators, I am going to take enough time to assure you that the position to which you referred of knowing one man is entirely familiar to the Arbitrators and I don’t think any of them have favoritism on their consciences. I say that just to reassure you.”
The petitioner has not charged either corruption or actual bias in the
Commonwealth involved a prpeeeding under the Arbitration Act in which the parties were a painting subcontractor and the sureties of the prime contractor on a large building construction project in Puerto Rico. The subcontract contained an arbitration clause pursuant to which each party designated one arbitrator and these two selected a third. Although the prime contractor was a “regular customer” of the third arbitrator, having employed him from time to time as an engineering consultant and paid him fees of approximately $12,000 over a period of four or five years, these facts were unknown to Commonwealth “and were never revealed to it by this arbitrator, by the prime contractor, or by anyone else (emphasis supplied) until after the award had been made.”
The Supreme Court rejected the lower courts’ construction of the statute and reversed. It had no doubt that “if a litigant could show that a foreman of a jury or a judge in a court of justice had, unknown to the litigant (emphasis supplied) any such relationship, the judgment would be subject to challenge”
The facts here are substantially and materially different from those in Commonwealth. While the instant petition charging, on information and belief (par. 32), that the “members of both the Board and the panel of arbitrators * * or their firms, regularly conducted business with the Kellogg firm of which respondent was a partner in amounts more than trivial
The respondent’s motion to dismiss for lack of jurisdiction is denied and it is So Ordered.
The petitioner’s motion to vacate the award is denied and it is So Ordered.
The respondent’s motion for entry of judgment on the award is granted and judgment may be entered accordingly.
It is So Ordered.
. 9 U.S.C. § 6.
. Id. § 10.
. Respondent’s Ex. 1, p. 2. This exhibit shows the limited partner also is a citizen of New Jersey although that is immaterial since the object of this proceeding is not “to enforce a limited partner’s right against or liability to the partnership.” New York Partnership Law § 115; Colonial Realty Corporation v. Bache & Co., 358 F.2d 178, 183-184 (2d Cir. 1966).
. Petitioner’s Ex. A, p. 2.
. Petitioner’s Ex. A, p. 15.
. 15 U.S.C. § 78b. See also United States v. Re, 336 F.2d 306, 315 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L. Ed.2d 177 (1964).
. Metro Industrial Painting Corp. v. Terminal Construction Co., Inc., 287 F.2d 382, 387 (2d Cir. 1961) (Lumbard, Chief Judge, concurring).
. 9 U.S.C. §§ 1, 2.
. Respondent’s Ex. XV, p. 2.
. Respondent’s Ex. V, p. 7.
. Respondent’s Ex. II, p. 3.
. Petition, pp. 9-10, par. 34.
. Answer, pp. 6-7, par. Seventeenth.
. Petition, p. 11, par. 36.
. 393 U.S. 145, 89 S.Ct 337, 21 L.Ed.2d 301 (1968).
. 393 U.S. 146, 89 S.Ct. 338.
. 382 F.2d 1010 (1 Cir. 1967).
. Id. 1012.
. 393 U.S. 147, 89 S.Ct. 337.
. 393 U.S 148, 89 S.Ct. 339.
. 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243 (1927).
. Id. at 532, 47 S.Ct. 437.
. 393 U.S. 148, 89 S.Ct. 339.
Id. at 147-148, 89 S.Ct. at 339.
. Id. at 149, 89 S.Ct. at 339.
. The phrase appears to have been taken from Justice White’s concurring opinion in Commonwealth in which Justice Marshall joined, 393 U.S. 151-152, 89 S. Ct. 337.