Opinion
April 15, 1929.
Single Single, for the plaintiff.
Haight, Smith, Griffen Deming, for the defendant.
Motion to stay this action pursuant to section 5 of the Arbitration Law until the subject-matter thereof has been decided by the court of Hamburg, Germany, is denied. This court is without power to grant such relief. That statute declares that "the Supreme Court, or a judge thereof, * * * shall stay the trial * * *." Section 65 of the New York City Court Act conforms the practice of this court to that of the Supreme Court, "except as in this act or otherwise specially provided." Section 16 of the New York City Court Act states that this court shall have original jurisdiction concurrent with the Supreme Court in certain specified cases. This grant of original jurisdiction concurrent with the Supreme Court is limited by said section 65. These two sections may not be considered as conferring on this court or a judge thereof powers which said section 5 of the Arbitration Law specially provides shall be vested in the Supreme Court or judge thereof. These are special provisions and are words of limitation and restriction. The court is not passing upon the right of the plaintiff as assignee to maintain an action here for damages for the breach of a contract which was made between two residents of Germany in a foreign country and contained the provision that all disputes are to be decided according to the German law and exclusively by the Hamburg courts. Whether or not the rulings of the courts of this State which declare that an agreement by which the parties to the contract (one of whom is a resident of this State) undertake to oust the courts of this State of jurisdiction and to confer exclusive jurisdiction to determine any controversies arising out of that contract upon a foreign court are void in that particular, are applicable to the herein action by plaintiff (an assignee) is not passed upon at this time. Motion to dismiss complaint withdrawn by the defendant, without prejudice to subsequent renewal. Motion for a stay denied. Defendant granted ten days after service of the order herein to serve its answer or make any motion with respect to the complaint. Order signed.