Katz, Application of
| Decision Date | 21 December 1953 |
| Citation | 160 N.Y.S.2d 159,3 A.D.2d 238 |
| Parties | Application of Joseph KATZ for an order restraining a certain arbitration attempted to be had by Benjamin Burkin pursuant to demand for arbitration dated |
| Court | New York Supreme Court — Appellate Division |
Abraham Kaplan, New York City, for appellants.
Irving Levine, New York City, for respondent.
Before PECK, P. J., and BREITEL, BOTEIN, RABIN and FRANK, JJ.
The order appealed from grants an examination before trial in an arbitration proceeding. The opinion at Special Term points out that there have been differences in the decisions at Special Term with respect to the policy and propriety of allowing examinations before trial in arbitration proceedings. A clarification of the policy in the First Department is indicated.
Undoubtedly an arbitration proceeding is a special proceeding in which examinations before trial are authorized, Civil Practice Act, §§ 308, 1459. The questions remain, however, as a matter of discretion, whether and under what circumstances examinations before trial should be allowed in arbitration proceedings.
We are of the view that examinations before trial under court aegis should not be granted in such proceedings except under extraordinary circumstances such as the demonstrated need of reaching a witness or evidence which is unavailable without a court order. Necessity rather than convenience should be the test.
This view is dictated by the consideration that an arbitration proceeding is, except in specified particulars, outside the court realm and jurisdiction--deliberately so taken out of the court by choice and commitment of the parties. Arbitration is subject to its own rules and practices at variance with court procedures. It is supposed to be a complete proceeding, without resort to court facilities, for handling and disposing of a controversy submitted to arbitration. It would be generally incompatible with the nature and scope of an arbitration proceeding to allow...
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