284 A.D. 108 | N.Y. App. Div. | 1954
Plaintiffs, representatives of a summer resort, sued defendants, who agreed to supply an orchestra and its leader, for damages for the orchestra’s failure to appear in breach of the agreement to do so. On defendant’s motion to stay all proceedings in the action pending an arbitration under an alleged agreement to arbitrate, Special Term granted the motion and stayed all proceedings until arbitration has been had. Plaintiffs appeal. The sole issue is: whether plaintiffs made a binding and definitive contract to arbitrate any controversy that might arise.
Plaintiffs are not in the music business, and, of course, they never saw nor were ever made aware of the existence or the nature of the rules of the Federation or informed that they contained any arbitration provisions. Under the circumstances disclosed, we hold that the provision of the contract relating to incorporation of the printed booklet was not sufficiently clear to bind plaintiffs to a definitive contract to arbitrate. Indeed, a reading of the relevant provisions of the booklet would seem to indicate that the Federation rules were applicable so far as charging union rates, etc., but not clearly applicable to the extent of requiring arbitration between these parties especially where, as here, the alleged impartial arbitrator was to be the union itself in any controversy with plaintiffs, who contracted to engage an orchestra.
The state of facts set forth herein is sufficient to distinguish this case from Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82). We think the issue before us is to be controlled by the decision of the Court of Appeals subsequent to the Level case (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288). In that case the Court of Appeals (p. 289) said: “ The rule is that a party is not to be compelled to surrender his right to resort to the courts, with all of their safeguards, unless he has agreed in writing to do so (Matter of Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102, 104), and by clear language (Matter of Lehman v. Ostrovsky,
The order appealed from should be reversed and the stay denied, with costs to plaintiffs-appellants.
Peck, P. J., Callahan, Breitel and Bergan, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants, and the motion for a stay denied. [See 283 App. Div. 1052.]