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

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

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 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

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 had selected the material at defendant's showroom, paid the agreed price less discount and received an invoice. There was no reference to arbitration either by way of invoice or conversation. Defendant's delivery man then brought the merchandise down to the sidewalk, where, in a street bustling with traffic, he loaded it on plaintiff's station wagon. He then asked the witness to sign, and the latter did sign, a 'receipt' for the number of pieces he had counted, of which he did not receive a copy. Although cross-examination elicited the admission that the witness had an opportunity to read the exhibits had he been so minded, he remained firm in his testimony that the same were represented only as receipts, for the number of pieces and, further, that in his industry only receipts, not contracts, were signed for finished goods.

It is the subject instruments, executed in this setting, prominently captioned 'Finished Goods Receipt' and so represented, which defendant seeks to elevate to the dignity of contracts binding the purchaser to a fine-print arbitration clause.

All that this court has heretofore had occasion to say of a fur storage receipt containing other obscure provisions (Arkush v. Citron, 14 Misc.2d 707, 180 N.Y.S.2d 514) applies with even greater force here, where the exhibits were signed after the completion of executed transactions and upon the express representation that the same constituted receipts, as indeed their caption would lead one to believe. As this court said in Arkush, 14 Misc.2d at page 712, 713, 180 N.Y.S.2d 519, 521:

'To the lay eye [this instrument] would represent a receipt, conspicuously featured as such. * * *

...

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1 cases
  • Pirraglia v. Jofsen Inc.
    • United States
    • New York Supreme Court
    • 20 de julho de 2016
    ... ... to establish that arbitration should be compelled (see Bona Togs Limited v Goldstein and Leavy, 31 Misc 2d 765 ... ...

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