In re the Arbitration between Acadia Co. & Edlitz

Majority

p. 348

In the Matter of the Arbitration between Acadia Company, Inc., Appellant, and Irving Edlitz, Respondent.

Submitted January 20, 1960;

decided February 25, 1960.

Robert W. Adler and Ruben Schwartz for appellant.

I. Execution of a written contract providing for arbitration being conceded and existence of a controversy being also conceded, the court must direct arbitration. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76 ; Matter of Spectrum Fabrics Corp. [Main St. Fashions], 285 App. Div. 710 , 309 N. Y. 709 ; Matter of Lane [Enclicott Johnson Corp.], 274 App. Div. 833 , 299 N. Y. 725 ; Matter of Behrens [Feuerring], 296 N. Y. 172 ; Matter of Potoker [Brooklyn Eagle], 286 App. Div. 733 , 2 N Y 2d 553 ; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36 .) II. The parties’ relationship was governed by a written contract prescribing arbitration. (Orr v. Doubleday, Page & Co., 223 N. Y. 334 ; Stern & Co. v. Avedon & Co., 194

p. 349

App. Div. 433 ; Adams v. Fitzpatrick, 125 N. Y. 124 ; Carter v. Bradlee, 245 App. Div. 49 ; Cammack v. Slattery & Bro., 241 N. Y. 39 .)

Arthur J. Katzman for respondent.

There was no agreement to arbitrate. (Matter of Princeton Rayon Corp. [Gayley Mill Corp.], 309 N. Y. 13 ; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288 ; Matter of Lehman v. Ostrovsky, 264 N. Y. 130 ; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82 ; Matter of Arthur Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102 ; Matter of Writers Guild of America East [Prockter Prods.], 1 N Y 2d 305 ; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76 ; Matter of Lane [Endicott Johnson Corp.], 274 App. Div. 833 , 299 N. Y. 725 ; Matter of Potoker [Brooklyn Eagle], 286 App. Div. 733 , 2NY2d 553.)

This is an appeal from an order of affirmance by the Appellate Division, First Department, by a divided court, of an order by Special Term which denied appellant’s motion to compel arbitration between the parties and to stay an action in the Municipal Court, Borough of Manhattan.

The essential facts are undisputed. Under a written agreement respondent was employed by appellant for a period from July 22, 1957 to January 22, 1958, and the agreement provided for arbitration of “ any question, difference or controversy [arising] as to the interpretation or performance of any of the foregoing provisions ”. It is conceded that prior to its expiration the contract was orally renewed and respondent’s employment extended six months. Subsequently the employment was terminated and a dispute arose over whether the contract had been breached, and as to wages due thereunder.

Special Term denied the motion on the theory that no binding agreement to arbitrate was created by the oral renewal since the renewal agreement was not reduced to writing (Civ. Prac. Act, § 1449). We reach a different conclusion. By orally renewing the written agreement the parties in effect adopted it as an integral part of the new arrangement, modified only by an extension of the time of employment. No other logical meaning can be attached to the expression “ oral renewal ”, an expression used by the respondent himself. There was, therefore, a suf

p. 350

ficient compliance with section 1449 of the Civil Practice Act, which requires 11 A contract to arbitrate a controversy thereafter arising between the parties must be in writing.” It was not necessary for the parties to prepare a new written agreement since they bound themselves to the old one, nor was it necessary for them to sign a new agreement (Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 N. Y. 360 -367).

The order should be reversed, with costs in all courts, and the motion granted.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Cases cited

In re Lipman 289 N. Y. 76 N.Y. 1942-07-29 p. 348, p. 349
In re the Arbitration between Spectrum Fabrics Corp. & Main Street Fashions, Inc. 309 N. Y. 709 N.Y. 1955-07-08 p. 348
In re the Arbitration between Lane & Leather Workers' Union of United States & Canada 299 N. Y. 725 N.Y. 1949-07-19 p. 348, p. 349
In re the Arbitration between Behrens & Feuerring 296 N. Y. 172 N.Y. 1947-01-17 p. 348
In re the Arbitration between Potoker & Brooklyn Eagle, Inc. 2 N Y 2d 553 N.Y. 1957-04-04 p. 348
River Brand Rice Mills, Inc. v. Latrobe Brewing Co. 305 N. Y. 36 N.Y. 1953-01-15 p. 348
Orr v. Doubleday, Page & Co. 223 N. Y. 334 N.Y. 1918-04-23 p. 348
Adams v. Fitzpatrick 125 N. Y. 124 N.Y. 1891-01-13 p. 349
Cammack v. J. B. Slattery & Bro. 241 N. Y. 39 N.Y. 1925-07-15 p. 349
In re the Arbitration between Princeton Rayon Corp. & Gayley Mill Corp. 309 N. Y. 13 N.Y. 1955-06-10 p. 349
In re the Arbitration between Riverdale Fabrics Corp. & Tillinghast-Stiles Co. 306 N. Y. 288 N.Y. 1954-02-25 p. 349
Lehman v. Ostrovsky 264 N. Y. 130 N.Y. 1934-04-17 p. 349
In re the Arbitration Between Level Export Corp. & Wolz, Aiken & Co. 305 N. Y. 82 N.Y. 1953-02-26 p. 349
In re the Arbitration between Writers Guild of America East, Inc. & Prockter Productions, Inc. 1 N Y 2d 305 N.Y. 1956-05-31 p. 349
In re the Arbitration between Helen Whiting, Inc. & Trojan Textile Corp. 307 N. Y. 360 N.Y. 1954-07-14 p. 350