Opinion
286 A.D. 1020 144 N.Y.S.2d 905 Application of Ethel ZITNER, as Administratrix of Max Zitner, deceased, for an order appointing a third Arbitrator in certain arbitration proceedings invoked by William Karpman and Joseph Cupersmith. Ethel ZITNER, respondent, v. William KARPMAN and Joseph Cupersmith, appellants. Supreme Court of New York, Second Department October 10, 1955.
Justin J. Toner, New York City, for appellants.
Irving Lemov, New York City, for respondent.
Before NOLAN, P. J., and MacCRATE, BELDOCK, MURPHY and UGHETTA, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to section 1452 of the Civil Practice Act, the appeal is from an order of the Supreme Court, Kings County, appointing a third arbitrator.
Order affirmed, with $10 costs and disbursements.
The pertinent provisions as to arbitration of the controversy involved, are contained in subdivisions (c) and (d) of paragraph 11 of a stockholders' agreement. Subdivision (c) of that paragraph provides that each party shall appoint an arbitrator, and that the two persons so appointed shall appoint a third arbitrator. No provision is made, in such a case, for any alternative method of appointment, if the two arbitrators appointed fail, or are unable to agree on a third. Subdivision (d) of the same paragraph provides that the failure of either party to a dispute to appoint an arbitrator within a specified time shall authorize the other to make the appointment for the party in default, and that the two arbitrators so appointed shall, in such event, select a third arbitrator. It is further provided that 'if such two arbitrators' shall fail or be unable to select a third, then 'any Judge of the Supreme Court of the State of New York, in and for the County of New York * * * is hereby authorized and empowered to appoint such third arbitrator' (emphasis supplied). In the instant case, each party appointed an arbitrator, and the two arbitrators so appointed were unable to agree on a third. Application was thereupon made to the Special Term in Kings County for such appointment, pursuant to the provisions of section 1452 of the Civil Practice Act. In our opinion, the application was properly made in Kings County. Civil Practice Act, § 1459. As we read the agreement between the parties, the provision authorizing the appointment of a third arbitrator in New York County is applicable only to a situation which may arise under subdivision (d) of the arbitration paragraph, and not to the situation presented here, to which subdivision (c) is applicable. If it be assumed, however, that the provision of subdivision (d) authorizing appointment of a third arbitrator in New York County was intended to apply to all situations in which arbitrators appointed are unable or fail to agree upon the selection of a third, it is our opinion, nevertheless, that the order appealed from should be affirmed. The provisions of section 1452 of the Civil Practice Act are read into every arbitration agreement made in this State, as an implied term of the engagement. Marchant v. Mead-Morrison M. Co., 252 N.Y. 284, 294, 169 N.E. 386, 389, and are available to the parties to an arbitration agreement, in the absence of provision therein to the contrary. We do not read the provisions of subdivision (d) of paragraph 11 of the agreement, if it has any application to the facts presented by this record, as intended to furnish an exclusive method of filling a vacancy in the board of arbitration, or as precluding the filling of such a vacancy in the manner provided by the statute. Marchant v. Mead-Morrison M. Co., supra. Consequently, although we do not agree with the determination at Special Term that Kings County acquired exclusive jurisdiction of all proceedings with respect to this arbitration, because of the fact that a motion had been made in that county to stay the arbitration of the controversy between the parties, see, President Self-Service v. Affiliated Restaurateurs, 280 N.Y. 354, 360-361, 21 N.E.2d 188, 190; Marchant v. Mead-Morrison M. Co., supra, 252 N.Y. at page 292, 169 N.E. 388; Hosiery Mfrs' Corp. v. Goldston, 238 N.Y. 22, 25-26, 143 N.E. 779, 780, it is our opinion that the order appealed from was properly made.
NOLAN, P. J., and MacCRATE and UGHETTA, JJ., concur.
BELDOCK, J., concurs in result.
MURPHY, J., dissents and votes to reverse the order and to deny the motion, with the following memorandum:
I agree with the undisputed construction of the parties themselves, namely, that in event of disagreement of the two arbitrators, however selected, the third arbitrator was to be appointed by 'any Judge of the Supreme Court of the State of New York, in and for the County of New York'. The method employed by the parties to the contract as construed by the parties to this proceeding must govern. Civil Practice Act, § 1452. In consequence, the appointment made in this order cannot be upheld.