O'Brien v. Bache Halsey Stuart Shields, Inc.
| Decision Date | 09 March 1981 |
| Citation | 80 A.D.2d 846,444 N.Y.S.2d 469 |
| Parties | James O'BRIEN, Appellant, v. BACHE HALSEY STUART SHIELDS INCORPORATED et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Martin R. Weinberg, Roslyn Heights, for appellant.
Benedict Ginsberg, New York City (Charles E. Ramos, New York City, of counsel), for respondents.
Before MANGANO, J. P., and COHALAN, O'CONNOR and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by plaintiff from an order of the Supreme Court, Nassau County, dated August 12, 1980, which granted defendants' motion to compel arbitration of plaintiff's claim for damages arising out of his direction to sell 5,000 troy ounces of silver.
Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for further proceedings consistent herewith.
On or about September 20, 1979, plaintiff purchased 5,000 troy ounces of silver at $16.15 per troy ounce from defendant Bache Halsey Stuart Metal Co., Inc. (Bache Metal). Bache Halsey Stuart Shields Incorporated (Bache) brokered this transaction. Plaintiff and Bache metal signed a "sales contract" containing a clause providing for arbitration of "controversy or claim arising out of or in connection with the making of this agreement, or its performance or breach". According to plaintiff, on or about February 25, 1980 he instructed Bache to sell the silver "immediately upon the price of same declining below $30.00 per troy ounce". Bache agree. On March 10, 1980 the silver was sold to Bache metal at the price of $26.50 per troy ounce. Thereafter, Bache Metal signed and sent to plaintiff a "purchase contract" dated March 10, 1980. It contained an arbitration clause identical to that set forth in the sales contract. However, plaintiff did not sign the March 10, 1980 purchase contract. Plaintiff then commenced an action in the Supreme Court, Nassau County, against Bache and Bache Metal seeking $17,500 in damages for the alleged violation of his sale instruction. The application to compel arbitration followed.
As there is a substantial question on this record whether a valid agreement to arbitrate was made, Special Term erred in granting defendants' motion to compel arbitration without directing a trial of this issue (see CPLR 7503, subd. The arbitration agreement included in Bache Metal's purchase contract form did not become part of the contract of sale unless plaintiff expressly agreed to it (see Matter of Marlene Inds. Corp. 45 N.Y.2d 327, 408...
To continue reading
Request your trial
-
Frankel v. Citicorp Ins. Serv., Inc.
...849 N.Y.S.2d 194, 879 N.E.2d 733; Matter of Eagle Ins. Co. v. Lucia, 33 A.D.3d 552, 555, 824 N.Y.S.2d 9; O'Brien v. Bache Halsey Stuart Shields, 80 A.D.2d 846, 846, 444 N.Y.S.2d 469; Rose v. Merrill Lynch, Pierce, Fenner & Smith, 57 A.D.2d 553, 553, 393 N.Y.S.2d 72). In some cases, it may b......
-
Koob v. IDS Financial Services, Inc.
...court is required to "first make a determination whether the parties have entered into a valid arbitration agreement (O'Brien v. Bache Halsey Stuart Shields, 80 A.D.2d 846 and, if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement (Matter of......
-
Schenkers Intern. Forwarders, Inc. v. Meyer
...court must first make a determination whether the parties have entered into a valid arbitration agreement (O'Brien v. Bache Halsey Stuart Shields, 80 A.D.2d 846, 444 N.Y.S.2d 469) and, if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement (M......
-
Wolf v. Hollis Operating Co.
...85 A.D.3d 894, 895, 926 N.Y.S.2d 118 ; Weiss v. Kozupsky, 237 A.D.2d 514, 514–515, 656 N.Y.S.2d 907 ; O'Brien v. Bache Halsey Stuart Shields, Inc., 80 A.D.2d 846, 846, 444 N.Y.S.2d 469 ; cf. Matter of Kesselman, 100 A.D.2d 606, 607, 473 N.Y.S.2d 826, affd 63 N.Y.2d 756, 481 N.Y.S.2d 685, 47......