Haupt v. Rose
| Citation | 265 N.Y. 108,191 N.E. 853 |
| Parties | HAUPT et al. v. ROSE. |
| Decision Date | 03 July 1934 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Proceedings by Ira Haupt and others, copartners doing business as Ira Haupt & Co., for an order requiring Morris Rose to submit certain differences between the parties to arbitration, and staying Morris Rose from proceeding in an action heretofore instituted by him against petitioners in the Supreme Court. An order denying the application for an order to require arbitration and to stay proceedings was affirmed by the Appellate Division (240 App. Div. 869, 267 N. Y. S. 931), and petitioner appeals.
Reversed, and motion granted.
Appeal from Supreme Court, Appellate Division, First department.
Harold F. Levin and S. Harry Eilenberg, both of New York City, for appellants.
Harry T. Zucker and Sydney J. Schwartz, both of New York City, for respondent.
As part of the contract between Haupt & Co., stockbrokers, and Rose, a customer, there was a provision that any controversy between them should be determined by arbitration. On June 29, 1933, Haupt & Co. demanded that a controversy which had arisen should be submitted to arbitration. Upon failure of Rose to proceed in accordance with the demand, a motion was made for an order directing arbitration and staying the trial of an action theretofore commenced by Rose against Haupt & Co. The motion was denied at Special Term, and the order was affirmed by the Appellate Division. The ground for denial was that Haupt & Co. had waived their right to insist upon arbitration by electing to proceed at law. The point seems to be that when Rose invited Haupt & Co. to litigate the controversy by action, Haupt & Co., first accepted the invitation, and then by this motion attempted to repudiate it. The question is one of election. The controversy arose early in 1932. Rose made a demand which was refused by Haupt & Co. Then followed some talk about compromise. Thus was consumed upwards of a year. Thereafter the sequence of events was as follows: The summons and complaint in Rose v. Haupt & Co. were served on April 5, 1933. On April 24, 1933, the parties entered into a stipulation extending the time of Haupt & Co. to move or answer. On May 5, 1933, Haupt & Co. moved to dismiss the complaint and in the alternative separately to state and number. This motin, returnable on May 10, 1933, was adjourned to May 17, 1933, and on that day submitted for decision. On May 30, 1933, the decision was handed down, denying the motion to dismiss the complaint, but granting the motion separately to state and number. On June 28, 1933. Rose served an amended complaint separately stating and numbering his alleged causes of action. On the following day Haupt & Co. made the demand for arbitration, and on July 5, 1933, moved under the Arbitration Law (Consol. Laws, c. 72).
We are unable to see that there was such delay...
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Necchi Sewing Machine Sales Corp. v. Carl
...20 A.L.R.2d 1077 (1960); Okl.Stat. tit. 12, § 263 (1961) (by implication). Indeed, the instant case closely resembles Haupt v. Rose, 265 N.Y. 108, 191 N.E. 853 (1934), where it was held that a party could seasonably seek arbitration though its previous motion to dismiss the complaint in a p......
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Weight Watch. of Quebec Ltd. v. Weight W. Int., Inc., 73 C 1121.
...original answer and otherwise totally at odds with its actions in the lawsuit. The court also finds distinguishable Matter of Haupt v. Rose, 265 N.Y. 108, 191 N.E. 853 (1934), cited by defendant. Aside from the fact that federal law controls the waiver issue, see Coenen v. R. W. Pressprich ......
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Soloway v. Morgan Stanley Smith Barney LLC
...). The right to arbitration is not waived by service of routine pleadings and minimal, defensive, litigation ( see e.g., Matter of Haupt v. Rose, 265 N.Y. 108 [1934] [entering into stipulation to extend time to answer, coupled with moving to dismiss the complaint or, alternatively, to compe......