In re the Arbitration between Exchange Mutual Insurance & Scandura , 17 Misc. 2d 496 ( 1959 )

Irving H. Saypol, J.

Petitioner moves for a stay of arbitration and respondents cross-move to compel arbitration. Petitioner urges that no demand for arbitration was served upon it. The arbitration was initiated by notice given to the American Arbitration Association, which in turn notified the petitioner of such demand. Thereafter and upon the date of service of the order to show cause seeking a stay, a further demand was served upon the petitioner. Since it argues the merits of the demand and opposes the cross motion, it thereby demonstrates a refusal to arbitrate. Accordingly, the merits will be considered.

Petitioner makes a belated objection that there is no judicial authority granted to the guardian ad litem to arbitrate on behalf of the infant. The failure to designate a guardian ad litem is not fatal, and it may be done nunc pro tuno in the order to be entered.

The arbitration provision reads: “If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the' American Arbitration Association, and judgment upon the award rendered by the arbitratrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.”

It is clear that the question of legal liability to pay, and the amount, are for the arbitrator. Any question of prematurity, other insurance, excess insurance, etc., is necessarily within the ambit of the quoted language, and the time and amount of payment are for the arbitrator.

The motion is denied and the cross motion is granted. Settle order.