Fagliarone v. Consol. Film Indus., Inc.

• Decision Date: 20 May 1942
• Citation: 26 A.2d 425,20 N.J.Misc. 193
• Parties: FAGLIARONE v. CONSOLIDATED FILM INDUSTRIES, Inc.
• Court: New Jersey Circuit Court

26 A.2d 425

20 N.J.Misc. 193

FAGLIARONE

v. CONSOLIDATED FILM INDUSTRIES, Inc.

Circuit Court of New Jersey. Hudson County.

May 20, 1942.

Proceeding by John Fagliarone against the Consolidated Film Industries, Inc., for an order directing arbitration proceedings between the petitioner and the defendant as provided in agreement made between the defendant and a union of which the petitioner is a member.

Motion granted without requiring petitioner to deposit security for costs.

Pesin & Pesin, of Jersey City, for petitioners.

Child, Riker, Marsh & Shipman, of Newark, for defendant.

BROWN, Judge.

The petitioner moves for an order directing arbitration proceedings between the petitioner and the defendant as provided in a written agreement made between the New York Printing Pressmen's Union No. 51, I. P. P. & A. R, of N. A., of which the petitioner is a member and the above-named defendant. The principal reason assigned for the arbitration is that the defendant employer in discharging the petitioner from his employment unjustly discriminated against the petitioner. The defendant contends if an order for arbitration is granted it should be conditioned on the petitioner depositing security for costs. The parties have stipulated the facts upon which the motion is made. This stipulation contains admissions by both parties that the contract between Pressmen's Union and the defendant corporation provided in section 10 thereof in part as follows: "Any employee may be discharged for reasons satisfactory to the Firm. If the employee feels that he or she has been unjustly discriminated against, said employee shall have the right to have the matter arbitrated in accordance with the laws of the State of New Jersey. Copies of the Arbitration laws of the State of New Jersey shall be submitted to the Firm and the Union upon execution of this agreement. The cost of said arbitration, however, shall be borne by the losing party."

R.S. 2:40-12, N.J.S.A. 2:40-12, provides for the making of an order by a judge of the Circuit Court for arbitration in cases falling within the specifications of the statute. The statute last referred to reads as follows: "A party aggrieved by the failure, neglect or refusal of another to perform under a written agreement providing for arbitration, may petition a justice of the supreme court or judge of a circuit court for the county where either party resides, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days' notice in writing of the application shall be served personally upon the party defaulting."

The petitioner did not personally sign the agreement made between the Pressmen's Union and the defendant, nevertheless, this court determines that upon the proof in this case the partioner has a legal right to invoke the benefit of the statute. In the case of Borough of Brooklawn v. Brooklawn Housing Corp, 124 N.J.L. 73, 11 A.2d 83, mention is made of the rights of a third-party beneficiary arising out of a contract executed between others. In that case as well as the cases cited therein there appears to be a distinction between the beneficiary who has a right of action under a contract and the one who has not. An incidental beneficiary might profit from the performance of the contract, but he cannot enforce such performance by legal action. It is not enough that the plaintiff may be benefited by the performance of the contract, he can only maintain the action when the contract is made for his benefit. The rule is well settled that before one not privy to a contract can maintain an action it must appear that the contract was made for his benefit and so intended. According to section 10 of the agreement between the Pressmen's Union and the defendant, the contract expressly grants the right of an employee to have arbitrated the question...