18 Misc. 2d 109 | N.Y. Sup. Ct. | 1959
Petitioner moves, pursuant to section 1461 of the Civil Practice Act, to confirm the award ‘ ‘ of the Arbitrator -dated and acknowledged on January 7, 1959. Said award- directs- the respondent* Stella O’Connor, individually and/or-Tégal-representative of William O’Connor, deceased, to- pay to the petitioner, Frank Kandler, the sum of $1,000, -the balance due him under a contract dated December 12, 1954, - together with "interest at 6% from December 1, 1956, and the additional sum of $438 for extra'work with interest at 6% •'from December 1, 1956.
Petitioner, respondent Stella O’Connor, and her husband, William O’Connor,- entered into a written agreement dated December 12, 1954, for the construction by the petitioner, as contractor, of a two-family dwelling on vacant land owned by the O’Connors. Paragraph “7” of the agreement provided as follows: “7: Any controversy or dispute arising under this Contract, shall be settled by' the Architect, whose decision shall be final and binding upon the parties hereto, except that in the case of a dispute as,to.the value of extra work, or of work omitted, or of the aráount of damages referred to in Paragraph ‘ 4 ’, either party may appeal from the Architect’s decision to a board of arbitration, -and to that end it is agreed that any such appeal-shall-be submitted to arbitration in the following manner, viz.':' Either party desiring to arbitrate shall furnish a notice to-the other party'by registered mail stating his grievance and desire to arbitrate, and naming in such notice some competent person to act as arbitrator; the other party to this Contract .shall then appoint some competent person as arbitrator; and these two shall- select a third. The -decision of any two' of this- board- shall be final and binding on both the parties hereto. ■ Each party shall pay one-half the fees of the board of arbitration.”
Petitioner entered upon the performance of. the work and claims -that -he completed it in -accordance with the terms of said contract and the • specifications therein referred to, but that the owners failed to. pay him a balance of $1,000 of the contract price and $438-for ext.ra work.
It appears that William O’Connor died-intestate on February 13, 1958, and no letters of administration were ever issued to his’ widow, the respondent, Stella O’Connor, or to any other person^ The “ arbitration ”' proceeding was commenced by notice dated November 24, 1958. This notice made reference to the contract of December 12, 1954, and set forth in full paragraph “ 7 ” therof. It recited that, the sum of $1,400 for work, labor and services performed under the terms of said contract
Inasmuch as the notice to arbitrate, dated- November 24, 1958, did not state in substance, as required by subdivision 2 of section 1458 of the Civil Practice Act, “ that unless within ten days after its service, the party served therewith shall serve a notice of motion to stay the arbitration, he shall thereafter be barred from putting in issue the making of the contract or submission or the failure to comply therewith,” these issues may properly be raised by the nonparticipating party upon a motion to confirm the award. (Matter of Hesslein & Co. v. Greenfield, 281 N. Y. 26.) Upon the papers submitted by the parties the court finds that the contract, dated December 12, 1954, was executed by the petitioner, the respondent, Stella O’Connor, and her late husband, William O’Connor, and contained a provision for the resolution of disputes between the parties as set forth in paragraph ■“ 7 ” thereof; that, the .dispute between the parties involves not only the valúe of extra work claimed to have been performed • by • the petitioner, but work under the contract for which he claims $1,000 and which respondent claims was omitted by him; that the decision of the architect on such issues is, by the terms of paragraph “7” of the contract not final for it is there provided that ‘ ‘ either party may appeal from the Architect’s decision to a board of arbitration ’ ’ said board to consist of three, one to be appointed by each party and the third to be selected by such appointees, the decision of any two of this board to be final and binding upon both parties, where the dispute is “ as to the value of extra work, or of work omitted ”.
Since, for the reasons stated, the decision of the architect was not final and binding upon the parties in respect to the
Settle order.