Newburger v. Gold

229 A.D. 572, 243 N.Y.S. 51, 1930 N.Y. App. Div. LEXIS 10445

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1930
• Status: Published

Opinions

O’Malley, J.

The facts are sufficiently stated in the opinion of Mr. Justice McAvoy.

We are of the opinion that there are preliminary questions to be decided before arbitration may be compelled. The relation between the parties was fiduciary. The respondent Morris' Gold, also respondent here, alleges that when he discovered that the paper presented contained type too small for him to read and suggested that he would take it home for his son to read, he was assured by the petitioners’ representative that it was merely an authorization to the petitioners to buy and sell stock and that “ there was nothing else to it; ” and that upon such assurance the respondent Gold signed. In these circumstances we think there is an issue as to the factum of the agreement to arbitrate. It would be for the jury to say whether or not in the circumstances the respondent Gold was not lulled into a false sense of security and had not been overreached by his fiduciary.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Finch and Marten, JJ., concur; Dowling, P. J., and McAvoy, J., dissent.