Opinion
February 20, 1964
Order, entered on November 27, 1963, insofar as appealed from to the extent indicated, unanimously reversed on the law, and the direction that J. Berlage Co., Inc., pay into court certain costs and disbursements, or give an undertaking therefor, and that respondent's attorneys, until such compliance, are liable for said costs and disbursements to an amount not exceeding $100, vacated, without costs to either party. Insofar as the attorneys for J. Berlage Co., Inc., are concerned, there is no basis in law for the liability imposed (Civ. Prac. Act, §§ 1530, 1531, 1522). J. Berlage Co., Inc., appeared in the quality arbitration as agent for Fah Sang Co., Ltd., and did not appear therein as a principal. Under the terms of the contract between Littlejohn Co., Inc., and Fah Sang Co., Ltd., it was expressly provided that no responsibility accrued to J. Berlage Co., Inc. "for the fulfillment of the terms of this contract by Fah Sang Co., Ltd. as to, but not limited to, quality, quantity and shipment." J. Berlage Co., Inc., was also empowered under the contract to participate in any arbitration whether quality or technical, and these conditions were known to and accepted by Littlejohn Co., Inc. Littlejohn instituted the proceeding to confirm the quality award, and also moved to set aside the award granted Berlage by the appeals arbitration panel in a technical proceeding which, from the title, had been initiated by Berlage as agent for Fah Sang. In the respective court proceedings Berlage merely cross-moved. Since Littlejohn dealt with Berlage as an agent for a disclosed principal, that agent being expressly excluded from any liability under the contract, there was no basis for the imposition of costs, disbursments and the Referee's fee upon Berlage. Settle order on notice.
Concur — Breitel, J.P., Rabin, Stevens, Steuer and Bastow, JJ.