In re the Arbitration between O'Connell & De Witt Conklin Organization, Inc.

15 A.D.2d 758, 224 N.Y.S.2d 301, 1962 N.Y. App. Div. LEXIS 11378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1962
• Status: Published

Opinion

The claim sought to be arbitrated is “ the net amount due from [petitioner] as a member or former member of the partnership known as De Witt Conklin Organization ”. The partnership agreement of July 1, 1958 among petitioner and the appellants other than De Witt Conklin Organization, Inc., provides for arbitration of “Any controversy or claim arising out of or relating to this Agreement or the breach thereof ”. The agreement of June 26, 1959 provides for the dissolution of the partnership, the sale of part of the partnership assets to the corporate appellant, the liquidation of the remaining assets and payment of the net proceeds to the corporation, payment to it of the individual liabilities of the partners and the assumption by it of the liabilities of the partnership to the respective partners. The last agreement further provides for the execution by the parties thereto of any assignments Or Other documents necessary to confirm the title of the corporation in respect of the property thereby transferred. Petitioner opposes the arbitration allegedly because the agreement of June 26, 1959 has not been complied with, to his detriment and argues that the partnership agreement has terminated and the former agreement does not provide for arbitration. The sums due from the individual parties to the partnership were effectively assigned to the corporation by the instrument of June 26, 1959. The assignment of the claim against the petitioner carried with it the right and the obligation to arbitrate in accordance with the agreement of July 1, 1958. (Matter of Hosiery Mfrs. Corp. v. Goldston, 238 N. Y. 22, 28.) The effect on the arbitration agreement of the subsequent agreement of June 26, 1959, and whether the earlier agreement was terminated, are determinable by the arbitrators. (Matter of Terminal Auxiliar Maritima [Winkler Credit Corp.], 6 N Y 2d 294, 298-299.) Concur — McNally, J. P., Stevens, Eager, Steuer and Bastow, JJ.