In re the Arbitration between Art Infants Wear, Inc. & Turk

Appellate Division of the Supreme Court of New York

In re the Arbitration between Art Infants Wear, Inc. & Turk

272 A.D.2d 138

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 1947

StatusPublished

This text of 272 A.D.2d 138 (In re the Arbitration between Art Infants Wear, Inc. & Turk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Arbitration between Art Infants Wear, Inc. & Turk, 272 A.D.2d 138 (N.Y. Ct. App. 1947).

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Opinion

Per Curiam.

Assuming that the sales contract between these parties could have been terminated by either under the clause “ Prices are subject to change without notice ”, it continued binding until one party informed the other of a change in' price. No notice of a change in price was given. When delivery of the goods was tendered by the seller, it was rejected by the purchaser solely on the ground that the quality of the [139]*139material did not measure up to the contract. Rejection on this ground waived the right to change the price (Littlejohn v. Shaw, 159 N. Y. 188; Hess v. Kaufherr, 128 App. Div. 526). The contract; including the arbitration clause, thus remains effective concerning these transactions. The presence in a contract of a clause terminating it at the option of either of the parties “ has no effect on the binding obligations of the contract as long as the parties continue to act under it before revoking or terminating it.” (17 C. J. S., Contracts, § 399, p. 889.)

The order appealed from should be 'affirmed, with $20 costs and disbursements.

Martin, P. J., Glennon, Dore and Van Voorhis, JJ., concur; Callahan, J., concurs in result.

Order unanimously affirmed, with $20 costs and disbursements.

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Per Curiam.

Assuming that the sales contract between these parties could have been terminated by either under the clause “ Prices are subject to change without notice ”, it continued binding until one party informed the other of a change in' price. No notice of a change in price was given. When delivery of the goods was tendered by the seller, it was rejected by the purchaser solely on the ground that the quality of the [139]*139material did not measure up to the contract. Rejection on this ground waived the right to change the price (Littlejohn v. Shaw, 159 N. Y. 188; Hess v. Kaufherr, 128 App. Div. 526). The contract; including the arbitration clause, thus remains effective concerning these transactions. The presence in a contract of a clause terminating it at the option of either of the parties “ has no effect on the binding obligations of the contract as long as the parties continue to act under it before revoking or terminating it.” (17 C. J. S., Contracts, § 399, p. 889.)

The order appealed from should be 'affirmed, with $20 costs and disbursements.

Martin, P. J., Glennon, Dore and Van Voorhis, JJ., concur; Callahan, J., concurs in result.

Order unanimously affirmed, with $20 costs and disbursements.

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Bluebook (online)

272 A.D.2d 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-art-infants-wear-inc-turk-nyappdiv-1947.

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