Kessner & Rabinowitz Inc. v. Winchester Textiles, Inc. , 46 A.D.2d 239 ( 1974 )

Kupferman, J.

It is alleged that plaintiff-respondent purchased from the defendant-appellant quantities of corduroy for processing to be held by the defendant for shipment upon call. From time to time, the plaintiff was billed and paid for the purchases. When plaintiff directed the defendant to ship to it the balance of the textiles on hand, theretofore purchased and paid for, the defendant refused, and this action was brought to recover the sums paid.

The defendant moved to stay the prosecution of the action and compel arbitration pursuant to CPLR 7503 (subd. [a]), which motion was denied at Special Term on the ground of lack of mutuality.

Unlike the situation in Hull Dye & Print Works v. Riegel Textile Corp. (37 A D 2d 946) and Kaye Knitting Mills v. Prime Yarn Co. (37 A D 2d 951) there is here a specific provision for arbitration binding on both parties, as will be found in the first sentence of the arbitration clause set forth in the dissent. Because there are some variations, it is contended that there is a lack of mutuality, but the slight divergencies are insignificant.

The seller may determine between ‘ ‘ the laws of the State of New York” and “ the rules then obtaining of the American Arbitration Association ” as to how the arbitration will be held, certainly not a significant difference.

Further, there is a 12-month limitation upon the buyer only, for the institution of arbitration. Such a reasonable limitation of time should not bar enforcement. (See Planet Constr. Corp. v. Board of Educ. of City of N. Y.,7 N Y 2d 381, 385.)

Finally, it is contended that it is unfair for the seller (here the defendant-appellant) to have the right to join other parties in the arbitration. It is only natural that a fabricator of goods, in the event of a claim against it, would want to bring into the action all those in its chain of manufacture. The buyer, on the other hand, may not have the same need, .but in any event there is no specific written exclusion in the agreement as to the buyer.

Arbitration, in general, being favored, there is no good cause shown why it should not be compelled in this situation. (Matter of Weinrott [Carp], 32 N Y 2d 190.)

The order of the Supreme Court, New York County (Helman, J.) entered September 4, 1974, denying the application for an order staying the action and compelling arbitration, should be reversed on the law, with costs to the defendant-appellant, and the action should be stayed and arbitration directed.