In re the Arbitration between Long Island Lumber Co. & Martin , 22 A.D.2d 652 ( 1964 )

Order, entered on March 19, 1964, denying arbitration affirmed, with $30 costs and disbursements to the petitioner-respondent. The order appealed from stays an arbitration in a labor dispute. The ground of Special Term’s decision was that the contract provided for preliminary adjustment procedures as a condition precedent to arbitration. Those procedures were not had and respondent never demanded them. It is respondent’s position that the failure to carry out these preliminaries is a matter to be considered by the arbitrators. Ordinarily, compliance with such procedures is a condition precedent end the existence of the condition and its performance are for the court (Matter of Board of Educ. [Heckler Elec. Co], 7 N Y 2d 476). An exception is presented where the failure to comply with the procedures is either the matter in dispute or so closely connected with that matter that it can fairly be considered a part of it (Matter of First Republic Bldg. Corp. [Gildenhorn], 20 A D 2d 256). We agree with Special Term that the facts presented here do not bring the application within the exception. Nor do we read Wiley & Sons v. Livingston (376 U. S. 543) as enunciating any different rule.