In re the Arbitration between Riverdale Fabrics Corp. & Tillinghast-Stiles Co.

281 A.D. 983 | N.Y. App. Div. | 1953

Motion referred to the court that rendered the decision. Present — Carswell, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ. In this proceeding to stay a proposed arbitration, this court, on February 2, 1953, reversed an order dismissing the petition and directing that the controversy proceed to arbitration, and granted the application for a stay (ante, p. 831), in reliance on Matter of Level Export Corp. (Wolz, Aiken & Co.) (280 App. Div. 211) and other cited authority. Thereafter, the Court of Appeals reversed the determination in the Level Export Corp. case (supra), in view of which the respondent in the instant proceeding has moved this court for reargument. Motion for reargument granted. Present — Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ. On reargument, the decision handed down February 2, 1953, is amended to read as follows: In a proceeding to stay a proposed arbitration, petitioner appeals from an order dismissing the petition and directing that the controversy proceed to arbitration. Order affirmed, with $10 costs and disbursements, on the authority of Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82). Wenzel, MacCrate and Schmidt, JJ., concur; Adel, Acting P. J., and Beldock, J., dissent and vote to adhere to the former decision, with the following memorandum: The scant general statement in the contract here that it is subject to certain “ Cotton Yarn Rules ” is substantially different from the full and explicit statement in the contract in the case recently decided by the Court of Appeals (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82). Such scant general statement in the contract here necessarily presents a question of fact (a) as to whether the buyer, at the time of the making of the contract, had knowledge or is chargeable with knowledge of the provisions of the “ Cotton Yam Rules ” and of the fact that they compelled arbitration, and (b) as to whether the buyer had agreed to consent to arbitration.