Opinion
May 24, 1949.
Present — Glennon, J.P., Dore, Callahan, Van Voorhis and Shientag, JJ. [See post, p. 1027.]
The prior order of Special Term, dated June 29, 1948, directed the parties to proceed to arbitration in accordance with the terms of the contract and limited the arbitration to the amount of royalties due to the cancellation of the agreement on April 10, 1946. There is no merit to the contention that the arbitrators appointed to determine that issue are required to be patent lawyers and in any event respondent waived that objection. The arbitration should proceed before Messrs. La Follette and Brown and a third arbitrator in place of Mr. Fletcher to be selected pursuant to paragraph 14 of the contract, and the arbitrators should determine the issue as to royalties without any further unnecessary delay on respondent's part. Order, so far as appealed from, to the extent above indicated, unanimously modified, with $20 costs and disbursements to the appellant and, as so modified, affirmed. Settle order on two days' notice.