19 Misc. 2d 15 | N.Y. Sup. Ct. | 1957
Motion for an order staying the arbitration of the controversy between the parties above named is granted.
Prior to the institution of this proceeding an action was commenced by Bose Kabinoff individually and as administratrix of the estate of Isidore Kabinoff for a partnership accounting against her stepsons as surviving members of a partnership
Thereafter a second action was commenced by Rose Kabinoff which was dismissed by an order of this court (see Kabinoff v. Kabinoff, 6 Misc 2d 605). In view of the dismissal of the complaint in that action it was not necessary for the court to construe this agreement on that motion although reference is made thereto in the court’s decision.
From a study of the agreement it becomes clear that the surviving partners intended to prevent their stepmother as administratrix of their father’s estate from acquiring the entire interest of their father in the partnership, but intended to carve out from their father’s interest their own interest and permit the administratrix to receive only the interest of herself, her son by the decedent and a sum to be fixed as a result of the arbitration which would defer the costs of the administration proceeding. Such computation necessarily involves the intestate share of
In the demand for arbitration the surviving partners seek to avoid this construction of the arbitration agreement by providing that the arbitration shall determine the amount due Rose Kabinoff as administratrix of the estate of Isidore Kabinoff, deceased, etc., said amount constituting the value of the partnership interest of Isidore Kabinoff, deceased, in and to the net worth of the New Way Transport Company. This is not in conformity with the original arbitration agreement which, if it had been expressed in these terms, would have been arbitrable. The desire of the surviving partners to prevent their share of the assets of their father’s estates from coming into the hands, of the lawfully appointed administratrix renders the agreement insofar as the arbitration provisions are concerned invalid.
In view of the foregoing it is unnecessary to pass upon the question as to whether or not the agreement was induced by fraud on the part of the surviving partners.
Settle order.