Bona Togs, Limited v. Goldstein & Leavy, Inc.

CourtNew York City Municipal Court
Writing for the CourtBERNARD WEISS
Citation221 N.Y.S.2d 624,31 Misc.2d 765
PartiesBONA TOGS, LTD., Plaintiff, v. GOLDSTEIN & LEAVY, INC., Defendant.
Decision Date28 November 1961

Page 624

221 N.Y.S.2d 624
31 Misc.2d 765
BONA TOGS, LTD., Plaintiff,
v.
GOLDSTEIN & LEAVY, INC., Defendant.
Municipal Court, City of New York, Borough of Manhattan,
Ninth District.
Nov. 28, 1961.

Benjamin & Meyer Leibowitz, New York City (Benjamin Leibowitz, New York City, of counsel), for plaintiff.

Weil, Gotshal & Manges, New York City (Michael K. Stanton, New York City, of counsel), for defendant.

BERNARD WEISS, Justice.

Defendant moved to stay this action pending arbitration. The matter was referred to this court, pursuant to section 1450 of the Civil Practice Act, for trial without a jury as to the making of the alleged arbitration contract and final determination of the motion.

The action is for breach of warranty in the sale of certain finished fabric intended for manufacture into pleated skirts. Defendant rested

Page 625

after introducing two exhibits upon which it predicates its claim to arbitration. Except for the handwritten completion of blanks, the printed portions of both are identical and read as follows:

'Finished Goods Receipt

Approved by the Textile Distributors Institute, Inc. Received From:

Goldstein & Leavy, Inc.

1410 Broadway

New York 18, N. Y.

Invoice No _____

Date ________

For: ________

_____ Packages

_____ Pieces

_____ Cartons

_____ Cases

[31 Misc.2d 766] We herewith acknowledge receipt from you in good order of the above merchandise and this act of acceptance constitutes our agreement to the terms and conditions of the standard contract approved by the Textile Distributors Institute, Inc. including but not limited to the provision stating that any controversy arising under or in relation to this contract or any modification thereof, shall be settled by arbitration. Unless the parties agree in writing upon some other method of arbitration within ten days after demand for arbitration by either party, then such arbitration shall be held in the City of New York in accordance with the laws of the State of New York and the arbitration rules then obtaining of The General Arbitration Council of the Textile Industry.

Firm Name ________

By ________

(Please sign name legibly and in full)'

Del'd By ________

The first, for 15 pieces, is dated February 20, 1961, and the second, for 17 pieces is dated the following day. Each was signed for plaintiff by its sole witness, a partner, and for defendant by its delivery man.

The uncontradicted testimony of plaintiff's witness was to the effect that on each occasion he...

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1 practice notes
  • Pirraglia v. Jofsen Inc., Index No. 23247/2015E
    • United States
    • United States State Supreme Court (New York)
    • July 20, 2016
    ...the burden of proof is on the defendant to establish that arbitration should be compelled (see Bona Togs Limited v Goldstein and Leavy, 31 Misc 2d 765 [1961]). With respect to the applicability of the arbitration provision in the 1986 contract, Jorgenson's Landing and Mr. Jorgenson cannot r......
1 cases
  • Pirraglia v. Jofsen Inc., Index No. 23247/2015E
    • United States
    • United States State Supreme Court (New York)
    • July 20, 2016
    ...the burden of proof is on the defendant to establish that arbitration should be compelled (see Bona Togs Limited v Goldstein and Leavy, 31 Misc 2d 765 [1961]). With respect to the applicability of the arbitration provision in the 1986 contract, Jorgenson's Landing and Mr. Jorgenson cannot r......

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