Opinion
May, 1933.
Order denying motion for appointment of an arbitrator reversed on the law and the facts, with ten dollars costs and disbursements, and the matter remitted to the Special Term for a determination of the issues presented by the petition and answer and for an appropriate order after such determination. Appeal from order denying motion for resettlement dismissed. In our opinion, the petition and answer present issues which should be tried and determined by the Special Term, namely: (a) Did the respondent orally offer to sell his stock to the appellants for the sum of $2,000? (b) Did the parties waive the provision of the contract requiring a written notice of such an offer? If those questions are resolved in favor of the appellants, they will be entitled to an order of the Special Term directing that arbitration of the controversy respecting the price to be paid by the appellants be had. Young, Kapper, Scudder and Tompkins, JJ., concur; Lazansky, P.J., dissents upon authority of Matter of Fletcher ( 237 N.Y. 440).