Opinion
May 18, 1965
Order, entered on December 10, 1964, unanimously modified, on the law and on the facts and in the exercise of discretion, to permit the appellant to file a new demand or notice of intention to arbitrate, and, as so modified, affirmed, without costs or disbursements to either party. A defect in the demand served which should be corrected in any new demand, is that it omits a basic issue in controversy, that is, whether there was in fact an offer to sell. The demand proceeds on the assumption, and appellant asserts, there was such an offer. The respondent disputes this and asserts no offer was made. The contention of respondent that the corporation is not a proper party is rejected. All of the stockholders of this closed corporation were parties to the agreement. The agreement, as taken from the minute book of the corporation, provided "In the event, a dispute arises between any of the parties hereto with regard to any phase of the corporate business or their relations or any one matter whatsoever, the same shall be determined and settled by arbitration, and it is expressly agreed between the stockholders, that there be no resort to the Courts." Further, a copy of the agreement was to be spread upon the minutes of the next meeting of the corporation and "that the Corporation accepts its terms and be bound thereby." There is no claim that provision was not complied with, nor any dispute that in accordance with the agreement each stock certificate issued noted that the shares "are subject to the existing stockholders' agreement." By the language of the arbitration clause the parties agreed to arbitrate virtually everything arising out of, relating to, or connected with the business in which they were engaged. In respect to this dispute it is not for the courts to decide if the claim is tenable, or to attempt to pass upon the merits (CPLR 7501); all of that is for the arbitrator. ( Matter of Exercycle Corp. [ Maratta], 9 N.Y.2d 329, 334; cf. Matter of Uddo [ Taormina], 21 A.D.2d 402.)
Concur — Breitel, J.P., Rabin, Valente, McNally and Stevens, JJ.