Marshall Ray Corp. v. C. Haedke & Co.

• Decision Date: 08 July 1965
• Citation: 261 N.Y.S.2d 134,24 A.D.2d 668
• Court: New York Supreme Court — Appellate Division
• Parties: MARSHALL RAY CORPORATION, Appellant, v. C. HAEDKE & CO., Inc., Respondent.

Page 134

261 N.Y.S.2d 134

24 A.D.2d 668

MARSHALL RAY CORPORATION, Appellant, v. C. HAEDKE & CO., Inc., Respondent.

Supreme Court, Appellate Division, Third Department.

July 8, 1965.

Emil S. Bartle, Troy, for appellant.

Ruben Schwartz, New York City, for respondent (James T. Ronan, Troy, of counsel).

Before GIBSON, P. J., and HERLIHY, REYNOLDS, AULISI and HAMM, JJ.

PER CURIAM.

Appeal from an order directing arbitration.

The appellant sued for breach of an agreement alleged to be oral and made on April 10, 1964. The respondent submitted a written contract between the parties dated April 10, 1964, which provided for arbitration of any controversy arising under or in relation to the contract. It also provided that it should become binding if the buyer [the appellant] signed and returned to the seller a signed copy of the contract. The contract is signed as follows: 'Marshall Ray Corp. BY: Sol Tandler'.

The appellant questions the authority of Mr. Tandler to sign a binding agreement urging that the burden of proving agency is on the respondent. However, the respondent has established ratification of the contract by submitting a letter signed by the appellant's president on September 25, 1964, complaining of a breach of the written agreement of April 10 by stating that the respondent 'promised in writing to protect us from size 12 up' and complaining also of the quality of merchandise received.

The appellant further urges that it is suing 'for breach of an oral [appellant's emphasis] agreement made on April 10, 1964' and that the contract, although binding pursuant to the conditions on its face, 'is only evidence of part of...