Milton L. Ehrlich, Inc. v. Swiss Construction Corp.

11 A.D.2d 644, 201 N.Y.S.2d 133, 1960 N.Y. App. Div. LEXIS 9414

Opinion

Order unanimously modified, on the law and on the facts, to the extent of granting defendants’ cross motion to dismiss the complaint and, as so modified, affirmed, with $20 costs and disbursements to defendants-respondents-appellants. As stated at Special Term, plaintiff has participated in the selection of the arbitrators and otherwise taken part in the arbitration proceeding, and is therefore not entitled to stay its further progress. A reading of the complaint indicates that in form plaintiff seeks to rescind the contract containing the arbitration clause because of the fraudulent procurement of the contract. The only damages claimed by plaintiff, however, as a result of the inducing fraud, relate to “ careless, improper and unworkmanlike work ” in the performance of the contract. Such items of damages can clearly be presented to and determined by the arbitrators pursuant to the demand for arbitration. Furthermore, upon argument defendants consented to a submission of the issue of fraud in the inducement of the contract to arbitration. There is left of the relief sought in the complaint, therefore, only the prayer to rescind a contract pursuant to which plaintiff participated in arbitration proceedings long after it had become aware of the alleged fraud practiced by defendants in the procurement of said contract. No possible purpose will be served by permitting the complaint to stand. Concur — Botein, P. J., Breitel, Rabin, Valente and Stevens, JJ. [21 Misc 2d 506.]