Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd.
| Decision Date | 15 November 1967 |
| Docket Number | No. 60,Docket 31206.,60 |
| Citation | 385 F.2d 158 |
| Parties | ALTSHUL STERN & CO., Inc., Plaintiff-Appellee, v. MITSUI BUSSAN KAISHA, LTD. and Mitsui & Co., Ltd., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Clarence Fried, New York City (Richard Wolff and Hawkins, Delafield & Wood, New York City, on the brief), for appellee.
Howard F. Ordman, New York City (Putney, Twombly, Hall & Skidmore, New York City, on the brief), for appellant.
Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.
This is an appeal from that portion of an order of the district court which denied appellant's motion under the Federal Arbitration Act, 9 U.S.C. § 3, for a stay of the trial of and all further proceedings in the second cause of action in appellee's complaint pending arbitration. We believe that the order of the district court must be modified.
Plaintiff, a New York garment wholesaler, brought an action against defendant, a Japanese manufacturer, alleging as a first cause of action breach of several contracts to supply vinyl jackets and as a second cause of action a conspiracy with Paul Preston, plaintiff's employee, to destroy plaintiff's business.
In 1962 defendant sought a stay of both causes of action pending arbitration and moved for an order directing plaintiff to proceed with arbitration. The district court granted the stay as to the first cause of action and ordered plaintiff to proceed with arbitration of those contracts which called for arbitration in New York. Arbitration was had with respect to plaintiff's claims on the contracts calling for New York arbitration, but plaintiff never sought arbitration of its claims on other contracts which provided for arbitration in Japan.
In 1966, after learning from interrogatories that plaintiff's cause of action for conspiracy rested largely on the same claims of breach of contract as those alleged in the first cause of action, defendant renewed its motion for a stay of the second cause of action. The motion again was denied, and defendant now appeals.
Plaintiff contends that the order below should be affirmed because its second cause of action is not for breach of contract, but for the tort of conspiracy. It also argues that the contract issues which might arise on the trial of the second cause of action would be merely "incidental" to the conspiracy claim.
The contracts involved each provide that
It is clear from plaintiff's answers to interrogatories that its second cause of action is based in...
To continue reading
Request your trial
-
Axa Equitable Life Ins. Co. v. Infinity Financial Grp., LLC
...a cause of action in tort.") (citing Shearson Hayden Stone, Inc. v. Scrivener, 671 F.2d 680 (2d Cir. 1982); Stern v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158 (2d Cir.1967)); McBro Planning and Dev. Co. v. Triangle Elec. Const. Co., 741 F.2d 342, 344 (11th Cir. 1984) ("... it is well establi......
-
Dryer v. Los Angeles Rams
...Cal.Rptr. 851; Lewsadder v. Mitchum, Jones & Templeton, Inc. (1973) 36 Cal.App.3d 255, 111 Cal.Rptr. 405; Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd. (2d Cir.1967) 385 F.2d 158.) ...
-
Pompano-Windy City Partners v. Bear, Stearns & Co.
...as required by the arbitration clause." RMS Electronics, Inc., 618 F.Supp. at 191. See also, Altshul Stearn & Co., Inc. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158, 159 (2d Cir.1967). The claims constituting Counts III and V require little discussion; the Court finds that they arise out of ......
-
Bleumer v. Parkway Ins. Co.
...could frustrate any agreement to arbitrate simply by the manner in which it framed its claims. See, e.g., Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158 (2d Cir.1967), in which the court held that tort claims arising out of or related to a breach of contract were arbitrable......