In re the Arbitration between Weinberger & Friedman

Appellate Division of the Supreme Court of New York

In re the Arbitration between Weinberger & Friedman

41 A.D.2d 620, 340 N.Y.S.2d 720, 1973 N.Y. App. Div. LEXIS 5128

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

DecidedFebruary 15, 1973

StatusPublished

Cited by9 cases

This text of 41 A.D.2d 620 (In re the Arbitration between Weinberger & Friedman) 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 Weinberger & Friedman, 41 A.D.2d 620, 340 N.Y.S.2d 720, 1973 N.Y. App. Div. LEXIS 5128 (N.Y. Ct. App. 1973).

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Opinion

Judgment, Supreme Court, New York County, entered on October 30, 1972, denying petitioner’s application for a stay of arbitration, unanimously modified, on the law, so as to grant the stay only as to (1) the fact and amount of the overdraw, (2) the disability issue, and (3) the $20,000 obligation of petitioner Weinberger, and otherwise affirmed, without costs and without disbursements. The stay granted by order of this court entered on December 5, 1972, is vacated. Special Term properly concluded that the doctrine of res judicata is applicable to issues resolved by earlier arbitration, but it erred in assigning determination of the issue to the province of the arbitrators. The court is the proper forum for determination of its application. The governing principles were enunciated by this court in Matter of Spring Cotton Mills {Buster Boy Suit Co.) (275 App. Div. 196, 199-200, affd, 300 N. Y. 586). The controversies previously submitted to arbitration by petitioner herein and the executrix of the deceased partner, David Friedman, and covered by the award - later confirmed by the Court were limited to the claim to payment of $20,000 in addition to other component elements in computing the purchase price and Weinberger’s claim that the deceased partner, Friedman, was disabled during the last fiscal year of his life and his share of the profits was therefore subject to reduction under the terms of the partnership agreement. As part of the resolution of the aforesaid issues, the arbitrators declared an overdraw of $2,259.18 by Friedman. Nothing else was decided. Indeed, there were no other disputes to be decided. After confirmation of the award, the present dispute arose. It involves $5,469.81 which petitioner Weinberger describes as twice the “ overdraw ” figure plus interest but which the executrix describes as a controversy as to the total purchase price payments, including a claim for interest. We hold that the broader subject of total purchase price payments to be made by Weinberger was not covered by the prior submission and award and, therefore, arbitration of this controversy is proper. Concur-— Stevens, P. J., McGivern, Markewieh, Nunez and Lane, JJ.

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Judgment, Supreme Court, New York County, entered on October 30, 1972, denying petitioner’s application for a stay of arbitration, unanimously modified, on the law, so as to grant the stay only as to (1) the fact and amount of the overdraw, (2) the disability issue, and (3) the $20,000 obligation of petitioner Weinberger, and otherwise affirmed, without costs and without disbursements. The stay granted by order of this court entered on December 5, 1972, is vacated. Special Term properly concluded that the doctrine of res judicata is applicable to issues resolved by earlier arbitration, but it erred in assigning determination of the issue to the province of the arbitrators. The court is the proper forum for determination of its application. The governing principles were enunciated by this court in Matter of Spring Cotton Mills {Buster Boy Suit Co.) (275 App. Div. 196, 199-200, affd, 300 N. Y. 586). The controversies previously submitted to arbitration by petitioner herein and the executrix of the deceased partner, David Friedman, and covered by the award - later confirmed by the Court were limited to the claim to payment of $20,000 in addition to other component elements in computing the purchase price and Weinberger’s claim that the deceased partner, Friedman, was disabled during the last fiscal year of his life and his share of the profits was therefore subject to reduction under the terms of the partnership agreement. As part of the resolution of the aforesaid issues, the arbitrators declared an overdraw of $2,259.18 by Friedman. Nothing else was decided. Indeed, there were no other disputes to be decided. After confirmation of the award, the present dispute arose. It involves $5,469.81 which petitioner Weinberger describes as twice the “ overdraw ” figure plus interest but which the executrix describes as a controversy as to the total purchase price payments, including a claim for interest. We hold that the broader subject of total purchase price payments to be made by Weinberger was not covered by the prior submission and award and, therefore, arbitration of this controversy is proper. Concur-— Stevens, P. J., McGivern, Markewieh, Nunez and Lane, JJ.

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41 A.D.2d 620, 340 N.Y.S.2d 720, 1973 N.Y. App. Div. LEXIS 5128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-weinberger-friedman-nyappdiv-1973.

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