Opinion
May 13, 1971
Judgment, Supreme Court, New York, entered January 11, 1971, denying petitioner's application to stay arbitration unanimously affirmed. Respondent shall recover of appellant $30 costs and disbursements of this appeal. The demand for arbitration was served on November 13, 1970. Ten days later the respondent served a petition for a permanent stay thereof by registered mail. Special Term denied the stay on the authority of Matter of Knickerbocker Ins. Co. ( Gilbert), ( 35 A.D.2d 21). Thereafter Knickerbocker was reversed by the Court of Appeals ( 28 N.Y.2d 57) which held that service by mail on the tenth day was proper. The facts regarding the service of the stay petition in Knickerbocker are identical with those in the case at bar. We hold, therefore, that service of the petition for the stay of arbitration was timely and proper. However, in the exercise of discretion rather than remand to Special Term we consider the application for a stay on the merits. The petitioner publishes a monthly magazine, known as Argosy. Respondent is in the printing business. On January 20, 1954, the parties hereto entered into a written agreement, whereby respondent agreed to print the magazine Argosy. The contract contained the following arbitration clause: "Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration". The contract was originally for a five-year period beginning with the July, 1954 issue of Argosy. The record clearly establishes that the parties continued to operate under, and to recognize, the governing effect of the basic agreement, as evidenced by writings subscribed by petitioner, dated December 8, 1958, December 30, 1965, April 30, 1968, August 14, 1968 and January 28, 1970. In any event, whether the contract containing the arbitration clause had been terminated, is an issue to be determined in arbitration. Once the parties have entered into a valid contract containing a broad arbitration clause, "subsequent acts or documents purporting or claimed to terminate an agreement containing a broad arbitration clause, if in dispute, raise issues for the arbitrators and not for the court". ( Matter of Stein-Tex [ Ide Mfg. Co.], 9 A.D.2d 288, 289; to the same effect see Matter of Lipman [ Haeuser Shellac Co.], 289 N.Y. 76; Matter of Exercycle Corp. [ Maratta], 9 N.Y.2d 329.) Under date of December 30, 1965, petitioner wrote the following letter to respondent: "McCall Corporation has printed Argosy Magazine for us under the agreement between us dated January 20, 1954, as subsequently amended and extended. * * * In order to prevent the statute of limitations running on said indebtedness, Popular Publications, Inc. hereby acknowledges its obligation to you for the balance of $279,827.19 owing on your invoices for printing the May through August 1961 issues of Argosy Magazine, and that said indebtedness is just, correct, due and unpaid, and it hereby expressly and unequivocally renews such obligation and promises to pay same." The writing fully complied with section 17-101 and subdivision 1 of section 17-103 Gen. Oblig. of the General Obligations Law. (See Manchester v. Braedner, 107 N.Y. 346, 349; Lincoln-Alliance Bank Trust Co. v. Fisher, 247 App. Div. 465. ) For the foregoing reasons we find that the tendered issue whether the contract containing the arbitration clause had been terminated is for the arbitrators' determination; that there are no remaining issues to be tried by the court and we therefore affirm the denial of a stay of the arbitration.
Concur — Capozzoli, J.P., Nunez, Kupferman, Steuer and Eager, JJ.