S & L Vending Corp. v. 52 Thompkins Avenue Restaurant, Inc.

26 A.D.2d 935, 274 N.Y.S.2d 697, 1966 N.Y. App. Div. LEXIS 3127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1966
• Status: Published

Opinion

In a special proceeding by respondent to stay arbitration which had been demanded by the claimant, the latter appeals from an order of the Supreme Court, Kings County, entered March 21, 1966, which granted such stay. Order reversed on the law, with $10 costs and disbursements, and application for stay of arbitration denied. No questions of fact have been considered. The claimant is the assignee of a contract which provides, inter alia, that the claimant’s assignor shall supply a coin-operated phonograph to be installed in respondent’s place of business, the income to be shared by the contracting parties; the claimant contends that respondent breached the contract; and the contract contained an arbitration clause. In our opinion, the application for a stay was improperly granted. The assignment was valid. In the absence of an express or implied provision to the contrary, a contract, other than one which involves duties of such a personal or unique character as cannot be delegated, or of which assignment is prohibited by statute, may be assigned (Devlin v. Mayor, 63 N. Y. 8, 17). An assignee of a contract may avail itself of an arbitration clause contained therein (Matter of Lowenthal, 199 App. Div. 39, 44, affd. 233 N. Y. 621; Matter of Lipman, 289 N. Y. 76, 81). The contention, raised by respondent for the first time on this appeal, that-the contract was fraudulently executed, has no support in the record and cannot be considered by this court. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.