In re the Arbitration between Travelers Indemnity Co. & Sherwood

Appellate Division of the Supreme Court of New York

In re the Arbitration between Travelers Indemnity Co. & Sherwood

13 A.D.2d 507, 212 N.Y.S.2d 427, 1961 N.Y. App. Div. LEXIS 12340

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

DecidedMarch 6, 1961

StatusPublished

This text of 13 A.D.2d 507 (In re the Arbitration between Travelers Indemnity Co. & Sherwood) 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.

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In re the Arbitration between Travelers Indemnity Co. & Sherwood, 13 A.D.2d 507, 212 N.Y.S.2d 427, 1961 N.Y. App. Div. LEXIS 12340 (N.Y. Ct. App. 1961).

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Opinion

In a proceeding to stay arbitration of issues: (a) as to whether the automobile (owned by one Garriet D. Hopper), which was involved in an accident with respondents, was uninsured; and (b) as to respondents’ damages — arbitration having been demanded under an “ uninsured motorist ” indorsement upon an automobile liability insurance policy issued by petitioner to respondent Thomas Sherwood, Jr., petitioner appeals from an order of the Supreme Court, Rockland County, dated October 24, 1960, denying its motion for a stay. Order reversed on the law, without costs, and matter remitted to Special Term to determine whether the Hopper automobile was uninsured, and for further proceedings in accordance with such determination. In our opinion, on this appeal it is not necessary to determine that the question whether the other car was uninsured, is a matter for the courts (Matter of Phoenix Assur. Co. [Digamus], 9 A D 2d 998) or for the arbitrators (Matter of Royal Ind. Co. v. McMahon, 10 A D 2d 926; Matter of Bankers & Shippers Ins. Co. [Schaefer], 10 A D 2d 573, motion for leave to appeal denied 7 N Y 2d 711). Respondents waived their right to arbitration of such question when they commenced and brought to trial an action for a declaratory judgment to have the question determined by the court (Matter of Zimmerman v. Cohen, 236 N. Y. 15, 19). The fact that such declaratory judgment action resulted in a dismissal without prejudice did not impair the effectiveness of respondents’ waiver (Matter of Cooper Hats [Kadis], 285 App. Div. 937, affd. 309 N. Y. 705). Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur. [26 Misc 2d 513.]

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In a proceeding to stay arbitration of issues: (a) as to whether the automobile (owned by one Garriet D. Hopper), which was involved in an accident with respondents, was uninsured; and (b) as to respondents’ damages — arbitration having been demanded under an “ uninsured motorist ” indorsement upon an automobile liability insurance policy issued by petitioner to respondent Thomas Sherwood, Jr., petitioner appeals from an order of the Supreme Court, Rockland County, dated October 24, 1960, denying its motion for a stay. Order reversed on the law, without costs, and matter remitted to Special Term to determine whether the Hopper automobile was uninsured, and for further proceedings in accordance with such determination. In our opinion, on this appeal it is not necessary to determine that the question whether the other car was uninsured, is a matter for the courts (Matter of Phoenix Assur. Co. [Digamus], 9 A D 2d 998) or for the arbitrators (Matter of Royal Ind. Co. v. McMahon, 10 A D 2d 926; Matter of Bankers & Shippers Ins. Co. [Schaefer], 10 A D 2d 573, motion for leave to appeal denied 7 N Y 2d 711). Respondents waived their right to arbitration of such question when they commenced and brought to trial an action for a declaratory judgment to have the question determined by the court (Matter of Zimmerman v. Cohen, 236 N. Y. 15, 19). The fact that such declaratory judgment action resulted in a dismissal without prejudice did not impair the effectiveness of respondents’ waiver (Matter of Cooper Hats [Kadis], 285 App. Div. 937, affd. 309 N. Y. 705). Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur. [26 Misc 2d 513.]

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13 A.D.2d 507, 212 N.Y.S.2d 427, 1961 N.Y. App. Div. LEXIS 12340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-travelers-indemnity-co-sherwood-nyappdiv-1961.

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