In re the Arbitration between Deering Milliken, Inc. & Fab Industries, Inc.

50 A.D.2d 515, 374 N.Y.S.2d 662, 1975 N.Y. App. Div. LEXIS 12205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1975
• Status: Published

Opinions

— Judgment, Supreme Court, New York County, entered April 30, 1975, denying a stay of arbitration and directing that the parties proceed to arbitration, affirmed, with $40 costs and disbursements of this appeal to petitioner-respondent. Appeal from the order of the Supreme Court, New York County, entered April 22, 1975, denying reargument, unanimously dismissed as nonappealable, without cost and without disbursements. Deering Milliken, Inc., had sold certain textile goods to Fab Industries, Inc., and demanded arbitration of disputes as to nine of these contracts. The disputed contracts were dated between December 14, 1973 and April 18, 1974. The parties had done business since February, 1973 and had entered into a total of 50 contracts. Each contract designated Deering as the seller and Fab as the buyer and each contained a broad arbitration clause. The contracts, though allegedly misaddressed to Boston, Massachusetts, were received and accepted at that address. The 90 invoices related to these 50 contracts all designated Fab as the account vendee. Fab paid for the goods sold with 33 “Fab” checks and mailed the remittances in Fab envelopes. Clearly, the course of conduct of the parties indicates that the business dealings were between Fab and Deering. Fab’s position that another entity, Frontier Urethane Corp., was the true purchaser is belied by the above facts. The execution of the contracts in question by the recipient, when containing a designation of a principal, referred to Fab as well, although there may have been a further designation of Frontier as a joint recipient. The fact remains that Fab’s initial request of Deering to grant credit to Frontier was denied; however, Deering remained willing to, and in fact did, extend credit to Fab. The overwhelming documentary evidence reveals a course of business dealings between Deering and Fab over a period of time well encompassing the period during which the nine contracts in question were executed. The nine contracts themselves clearly designate Deering and Fab as the principal parties. We must therefore conclude that no useful purpose would be served by directing a hearing as to the true contracting parties, since it would involve a belaboring of the obvious. The parties should proceed directly to arbitration. Concur — Kupferman, J. P., Lupiano, Capozzoli and Lane, JJ.;