Opinion
March 21, 1966
In a "simplified procedure" action pursuant to CPLR 3031 to recover money allegedly due under a separation agreement and an arbitration award pursuant thereto, plaintiff appeals from so much of a judgment of the Supreme Court, Queens County, entered April 19, 1965, as modified the arbitrator's award by reducing the amount awarded for the support of the infant issue of the parties from $100 to $50 per week. Judgment modified on the law: (a) by striking therefrom the fourth ordering paragraph; (b) by substituting therefor the following: "Ordered and adjudged that the award of the arbitrator dated September 4, 1964, insofar as said award grants plaintiff the sum of $100 per week for the support and maintenance of the infant child of the parties, is ratified and confirmed"; and (c) by striking from the fifth decretal paragraph the figure "$185." and substituting therefor the figure "$235." As so modified, judgment, insofar as appealed from, affirmed, with costs to appellant. The findings of fact in the court below are affirmed. In our opinion, the separation agreement whereby the parties agreed to submit the question of support for plaintiff and the child of the parties to an arbitrator and which provided that the latter's determination "shall be deemed final, binding and conclusive upon the parties" and that "the parties waive all right to appeal such award" is enforcible and binding on the court ( Sheets v. Sheets, 22 A.D.2d 176, and cases cited at p. 177; Schneider v. Schneider, 24 A.D.2d 768). We are further of the opinion that CPLR 1209, which prohibits a controversy involving an infant from being submitted to arbitration, except by court order, applies only where an infant is a party. A controversy involving the quantum of support and maintenance of the issue of the parties is not one in which the infant is a party ( Schneider v. Schneider, supra). The contention of defendant that the order of February 16, 1965, from which defendant did not appeal, is res judicata on the issue of the amount of support for the child and is dispositive of this appeal is without merit. That order, insofar as it stated that the arbitrator's award is modified to the extent of directing that the amount for the support of the child shall be $50 per week, related to, referred to and was based on the court's decision dated December 8, 1964, upon which the judgment appealed from was ultimately entered on April 19, 1965. In view of the above, it was not necessary to appeal from the order of February 16, 1965, and it was proper to await the entry of the judgment for the purpose of appealing. Beldock, P.J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.