14 A.D.2d 569 | N.Y. App. Div. | 1961
In our opinion, the above issue constitutes a bona fide dispute which relates to the conduct of the corporate business and is embraced within the stockholders’ agreement to arbitrate. “ While it is true that whether or not a bona fide dispute exists is for the court (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199), it is equally true that in a proceeding to compel arbitration the question for the court to pass upon is whether the written contract provides for arbitration and, if so, whether there was a failure to proceed with the obligation to arbitrate (Matter of Kahn [Nat. City Bank], 284 N. Y. 515). The question of performance goes to the merits and is a matter for the arbitrators -whenever it appears that the parties have so consented (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76 * * *)” (Matter of Potoker [Brooklyn Eagle], 2 N Y 2d 553-559). We are also of the opinion that petitioner’s attorney, by reason of that relationship standing alone, is not disqualified from being designated to serve as petitioner’s arbitrator (Matter of Lipschutz [Gutwirth], 304 N. Y. 58, 63-64). Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur. [27 Mise 2d 122.]