Opinion
February 2, 1953.
In a proceeding to stay a proposed arbitration, petitioner appeals from an order dismissing the petition and directing that the controversy proceed to arbitration. Order reversed on the law and the facts, with $10 costs and disbursements, and application for stay granted, without costs. The controversy between the parties stems from a written contract for the sale of cotton yarn, which contract contains no express provision subjecting the controversy to arbitration. The provision in the contract on which respondent relies is, in fine print, that the contract is subject to certain "Cotton Yarn Rules". In our opinion, respondent has failed to sustain its burden of establishing that appellant, when it entered into the contract, was aware that the stated rules contained a provision which might be said to subject controversies under the contract to arbitration, or even to make a prima facie showing to such effect. Under the circumstances respondent is not entitled to have the controversy determined by arbitration. (Cf. Matter of General Silk Importing Co. [ Gerseta Corp.], 198 App. Div. 16, 200 App. Div. 786, affd. 234 N.Y. 513, and Matter of Level Export Corp. [ Wolz, Aiken Co.], 280 App. Div. 211.) Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur. [See post, p. 983.]