281 A.D. 1015 | N.Y. App. Div. | 1953
The judgment entered on defendant-respondent’s motion for summary judgment is unanimously modified to conform with the order which granted that motion for summary judgment, without costs. The order provided that the motion be granted without prejudice to plaintiff’s right to recover any balance due on the contract and without prejudice to any right which plaintiff might have to arbitrate the claims other than the balance due pleaded in the complaint. The judgment as entered is absolute in its adjudication in favor of defendant. As thus modified the judgment is affirmed. Our decision does not extend beyond ruling that the claim for a balance due is premature, and that the additional claims must be arbitrated under the terms of the contract. Whether such claims remain presently arbitrable under the arbitration machinery established by the parties is a question not before us on these appeals and it is therefore not determined. The orders denying plaintiff-appellant’s motion for partial summary judgment and granting defendant’s motion for summary judgment unanimously affirmed, with $20 costs and disbursements. Settle order on notice. Present — Peck, P. J., Glennon, Dore, Van Yoorhis and Bergan, JJ.