Behrens v. Feuerring

Decision Date17 January 1947
Citation296 N.Y. 172,71 N.E.2d 454
PartiesBEHRENS v. FEUERRING et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the arbitration of the claim of Henry Behrens against Gertrud Feuerring and others for breach of contract. From a judgment of the Appellate Division, 269 App.Div. 930, 58 N.Y.S.2d 216, affirming a judgment of the Supreme Court for Gertrud Feuerring and others on an order at Special Term, Steuer, J., 182 Misc. 979, 49 N.Y.S.2d 753, which confirmed the arbitrators' award disallowing the claim, and denying claimant's cross-motion to vacate the award, claimant appeals by permission of the Court of Appeals.

Affirmed. William J. Block, of New York City, for appellant.

Alexander Pfeiffer, of New York City, for respondents.

LOUGHRAN, Chief Judge.

By contract dated November 12, 1941, the parties fixed their respective interests in the assets of a Pennsylvania corporation and agreed that its business would be carried on by them as joint adventurers. Capital for the enterprise was to be supplied by the respondents. The appellant was to contribute technical skill and experience in management. Provision for arbitration was made in this text: ‘All disputes which may arise between the two parties regarding the application or interpretation of this agreement and of the legal relations connected therewith, which shall not be settled by way of amicable agreement, shall, to the exclusion of any court of law, be arbitrated with final effect by a board of arbitration consisting of three persons.'

In December, 1941, the respondents wrote the appellant a letter repudiating the contract. In January, 1942, they refused a demand for arbitration of his claim of a breach of their commitment to him. In March, 1943, he obtained at Special Term an order directing the arbitrators to determine ‘any and all controversies, disputes and matters of difference which may have arisen among the parties under the said contract’. Upon appeal by the respondents to the Appellate Division, that order was affirmed. We then denied a motion for leave to appeal to this court.

At the Special Term and again on the hearing before the arbitrators, the respondents contended that the contract had been induced by fraud of the appellant and that performance on his part became an impossible thing when the United States entered the war, since he was a German refugee then residing here on a visitor's visa. A majority of the arbitrators made a report in this form: ‘The claim of Henry Behrens (the appellant) against Gertrud Feuerring and Alfred Schwabacher (the respondents) for damages for breach of contract is not sustained, and is disallowed.’ This determination was confirmed at Special Term by an order which the Appellate Division has affirmed and the case is now here by our leave.

In its recitals, the order for arbitration asserts that ‘the written agreement dated the 12th day of November, 1941, was duly signed and delivered and constitutes a valid and subsisting contract among the parties hereto.’ The argument for the appellant takes that provision to be an adjudication in his favor upon the claims of fraud and disability which the respondents had made against him. From that viewpoint, the only question before the arbitrators was the amount of damages that were necessarily to be paid by the respondents for their repudiation of the contract. We cannot...

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7 cases
  • Exercycle Corp. v. Maratta
    • United States
    • New York Court of Appeals Court of Appeals
    • March 23, 1961
    ...the agreement voidable (see Matter of Lipman (Haeuser Shellac Co.), 289 N.Y. 76, 79, 43 N.E.2d 817, supra; cf. Matter of Behrens (Feuerring), 296 N.Y. 172, 178, 71 N.E.2d 454, 456; Matter of Wrap-Vertiser Corp. (Plotnick), 3 N.Y.2d 17, 163 N.Y.S.2d 639; Matter of Metro Plan v. Miscione, 257......
  • Skidmore, Owings and Merrill v. Connecticut General Life Ins. Co.
    • United States
    • Connecticut Superior Court
    • May 6, 1963
    ...that all issues subsequent to the making of the contract are not for the court but for the arbitrators.' See Matter of Behrens (Feuerring), 296 N.Y. 172, 177, 71 N.E.2d 454, 455-456. To the same effect is the case of Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 110 A.2d Thus, in......
  • Reconstruction Finance Corp. v. Harrisons & Crosfield
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 8, 1953
    ...Corbin, Contracts (1951), Sec. 1437. 6a Matter of Lipman, 289 N.Y. 76, 78, 43 N.E.2d 817, 819, 142 A.L.R. 1088. 7 Matter of Behrens, 296 N.Y. 172, 177, 71 N.E.2d 454, 456. We think those recent decisions have left little, if any, vitality in the earlier decision in Matter of Kramer & Uchite......
  • John Thompson Beacon Windows v. Ferro, Inc.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 29, 1956
    ...the arbitrators, not the court. Lipman v. Haeuser Shellac Co., 289 N.Y. 76, 43 N.E.2d 817, 142 A.L.R. 1088. See, also, Behrens v. Feuerring, 296 N.Y. 172, 71 N.E.2d 454. Commentators have forcefully attacked the theory that anything but questions relating to the initial validity of the arbi......
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