Opinion
May 27, 1938.
Appeal from Supreme Court of New York County.
Edmond B. Butler of counsel [ Edward C. Maguire with him on the brief; Rice Maguire, attorneys], for the appellants.
Jeremiah T. Mahoney of counsel [ Harris J. Klein, attorney], for the respondents.
Present — MARTIN, P.J., O'MALLEY, GLENNON, UNTERMYER and DORE, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied.
The contract provides that "Should any difference arise between employer and employee, the same shall be submitted to arbitration by both parties; failing to agree they shall mutually appoint an umpire, whose decision shall be final."
However desirable arbitration might be under these provisions to determine matters concerning which the parties have not agreed and thereby to create a contract which they have not made, it is not authorized by our statute. ( Matter of Buffalo Erie R. Co., 250 N.Y. 275; Matter of Fletcher, 237 id. 440.) Furthermore, these arbitration provisions when read with the provisions of paragraph 13 that "during that time [the term of the contract] there shall be no revisions or modifications of this agreement" must be held to be limited to "any difference * * * between employer and employee" concerning the construction, effect or performance of the contract. It should not be extended to allow either party to invoke arbitration to create a contract for them.
For these reasons and without consideration of the other questions urged on this appeal, the order should be reversed, with twenty dollars costs and disbursements, and the motion denied.