Zimmerman v. Cohen
| Decision Date | 24 April 1923 |
| Citation | 236 N.Y. 15,139 N.E. 764 |
| Parties | ZIMMERMAN v. COHEN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
In the matter of the application of Harris Zimmerman for an order directing Abraham D. Cohen, doing business as Central Hat Works, to proceed to arbitration. An order of the Appellate Division (204 App. Div. 375,198 N. Y. Supp. 139) reversed an order of Special Term, denying the application, and granted it, and said Cohen appeals by permission.
Order of Appellate Division reversed, and that of Special Term affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Louis H. Levin, of New York City, for appellant.
Ralph H. Blum, Israel F. Vogel, and Moses Altmann, all of New York City, for respondent.
The Appellate Division has certified three questions to this court:
(1) Is the right to an arbitration waived by the interposition of an answer by a defendant, sued upon an agreement in writing in which the parties have specifically agreed that all differences arising between them shall be settled by arbitration?
(2) May the right to an arbitration pursuant to an agreement therefor, contained in the contract in writing, be lost by reason of the applicant's laches in demanding the same?
(3) Is the right to proceed with an arbitration provided for by agreement absolute down to the time of trial?
These questions arise on an application made by the defendant for an order directing that the differences between the parties arisingout of a contract be submitted to arbitration. The motion is opposed by the plaintiffs on the ground that the defendant has waived his right to proceed by arbitration and has elected to proceed by action in a court of law. The Appellate Division is of the opinion that under the Arbitration Law (Consol. Laws, c. 72) there can be no waiver of a provision in a contract to arbitrate.
On August 30, 1920, the plaintiffs brought action against the defendant to recover damages for failure to deliver 100 cases of piping to be shipped from China during the months of September, October, and November, 1919. The contract was in writing and contained the following provisions:
The plaintiffs by bringing the action ignored this provision of the contract; they made no reference to it in their complaint. The defendant under the provisions of the Arbitration Law could have applied to the court to enforce arbitration and to stay all proceedings in the action. Instead of doing so, the defendant answered, setting up as a separate and distinct defense that the contract sued upon provided that it was contingent upon strikes, floods, riots, war, rebellion, and other contingencies unavoidable or beyond the control of the defendant, and that the defendant was prevented from carrying out his contract as all production was stopped, halted, and curtailed by reason of a cholera epidemic or plague in China. The defendant even went further and asked relief of the court by setting up a counterclaim and demanding judgment against the plaintiffs in a large sum. To the counterclaim the plaintiffs served a reply on the 8th day of October, 1920. Thereafter the issue joined by the pleadings was noticed for trial for the December term, 1920, and the defendant served cross-notice of trial. The action was placed upon the calendar of the Supreme Court for trial, No. 4671. After a delay of nearly two years due to the fact that No. 4671 had not been reached for trial upon the general calendar of the Supreme Court, and on the 16th day of October, 1922, the defendant made a motion for a commission to issue to the consul general at Chefoo, China, to take testimony of certain witnesses for the purpose of establishing the facts contained in his defense and counterclaim. The motion was granted and the commission issued.
Upon these facts, whatever right the defendant may have had under his contract and the Arbitration Law to enforce arbitration he deliberately waived; he chose and elected to proceed by an action in court for the determination of the respective claims. While the Arbitration Law provides for the enforcement of arbitration agreements, there is nothing in the law which prevents the parties agreeing between themselves to resort to any other method of settlement; the law does not bar the parties to the contract from coming into the courts of the state if they mutually choose to do so. The provision for arbitration was of no more binding force than any other provision of the contract. The Arbitration Law was passed to provide a means for enforcing an...
To continue reading
Request your trial
-
P.S. Fin., LLC v. Eureka Woodworks, Inc.
... ... Schnurr, 26 N.Y.3d 391, 400, 23 N.Y.S.3d 137, 44 N.E.3d 212 ; Matter of Zimmerman [Cohen], 236 N.Y. 15, 19, 139 N.E. 764 ; Matter of Village of Bronxville v. Bronxville Police Taylor Act Comm., 171 A.D.3d 932, 934, 98 N.Y.S.3d ... ...
-
Independent School Dist. No. 35 v. A. Hedenberg & Co.
...be set aside for facts existing at or before the time of its making, which would permit revocation of any other contract. Zimmerman v. Cohen, 236 N.Y. 15, 139 N.E. 764. Article 40 gave either party initially the right to insist on arbitration of any dispute, but the clause was not self-exec......
-
Necchi Sewing Machine Sales Corp. v. Carl
...files an answer on the merits." Chatham Shipping Co. v. Fertez Steamship Corp., 352 F.2d 291 (2 Cir. 1965); see Matter of Zimmerman v. Cohen, 236 N.Y. 15, 139 N.E. 764 (1923); Par Plumbing Co. v. Oxford Hall Corp., 43 Misc.2d 792, 252 N.Y.S.2d 341 (Sup.Ct.1964); Ted Stoppick & Co. v. Ernest......
-
Sablosky v. Edward S. Gordon Co., Inc.
...that the validity of an arbitration agreement is to be determined by the law applicable to contracts generally (Matter of Zimmerman v. Cohen, 236 N.Y. 15, 19, 139 N.E. 764), there is no reason for a different mutuality rule in arbitration cases. Moreover, recognition that mutuality of remed......