Zuber's Estate, In re

• Decision Date: 07 March 1960
• Citation: 24 Misc.2d 579,202 N.Y.S.2d 931
• Parties: In re ZUBER'S ESTATE. Application of La Verne P. BARON, for an Order restraining arbitration attempts to be had by Frances B. Zuber, individually and as Administratrix of the Estate of Theodore Zuber, before the American Arbitration Association.
• Court: New York Supreme Court

Page 931

202 N.Y.S.2d 931

24 Misc.2d 579

In re ZUBER'S ESTATE.

Application of La Verne P. BARON, for an Order restraining

arbitration attempts to be had by Frances B. Zuber,

individually and as Administratrix of the Estate of Theodore

Zuber, before the American Arbitration Association.

Supreme Court, Dutchess County.

March 7, 1960.

Mischa Lazoff, New York City, for petitioner.

M. J. Rider, Newburgh, for respondent.

SAMUEL W. EAGER, Justice.

We have here an application by petitioner to stay proceedings by respondent for arbitration of disputes arising under a contract for the sale to petitioner of all of the outstanding stock of a corporation which owned and operated a hotel or motel and bar and a restaurant. The petitioner obtained an order, dated January 25, 1960, signed by a Justice of this Court other than the undersigned, directing the respondent to show cause at a Special Term, Poughkeepsie, New York, on March 14, 1960, why an order should not be granted staying arbitration, the said order providing that all proceedings for arbitration be stayed until determination of the application. The respondent now moves at a Special Term of this Court to vacate the stay of the arbitration proceeding granted in said order of January 25, 1960, and 'directing that this matter proceed in arbitration in accordance with the demand for arbitration dated January 14, 1960, and for such other and further relief as may be just and proper.'

The motion by respondent is granted to the extent that the return day of the petitioner's application to stay arbitration is advanced to the return day of the motion by respondent, and the application for a stay of arbitration is now considered on the merits. It was unusual, to say the least, for the petitioner to make his application on January 25, 1960, and not seek to have it returnable for more than a month and a half later, that is, bearing in mind that there were in the meantime many Special Terms scheduled in the Ninth Judicial District at which the application could have been noticed. It is to be noted that the Justice signing the order was not available, so that respondent could apply to him for modification of his order to show cause so as to vacate the stay and advance the return day; and it is deemed proper therefore, that the respondent move for relief at a Special Term held by another Justice. The order to show cause was granted ex parte; and the undersigned, sitting at Special Term, has the right, under the circumstances here, to modify it to the extent necessary to advance the return day of the application and to vacate the interim stay. It is settled that 'an ex parte motion which has been granted by a judge out of court may be vacated or modified not only by the judge who made it,...