Opinion
June 21, 1954.
Appeals by petitioner from orders in two separate proceedings denying his motions to stay arbitration and granting cross motions to compel arbitration. Order in Proceeding No. 1 modified on the law by providing in the first ordering paragraph that the motion to restrain arbitration be granted as to the first and third items in the demand for arbitration and otherwise denied and by providing in the second ordering paragraph that the cross motion to compel arbitration be granted as to the second item in the demand and otherwise denied. As so modified order affirmed, without costs; petitioner to comply within five days after the entry of the order hereon with the provisions of the third ordering paragraph. Order in Proceeding No. 2 reversed on the law, with $10 costs and disbursements, and petitioner's motion for a stay granted and respondents' cross motion to compel arbitration denied, with $10 costs. The matter of sale of the respective parcels is not within the scope of the arbitration clauses in the two agreements. Under the express provisions of these agreements a sale of the realty can be achieved only by unanimous vote of the parties to the agreement. The arbitration clause does not purport to override the explicit rights accorded in the agreement itself, on a matter of policy. ( Matter of Essenson [ Upper Queens Med. Group], 307 N.Y. 68.) The question of breach of contractual obligation to repay money advanced by Burkin is, in the language of the arbitration clause an "arbitrable controversy" arising "by reason of the terms of this agreement". The matter of procurement of a certificate of occupancy presents no arbitrable controversy. If the corporation is entitled to it, it can be procured by either of the parties as a matter of course. Nolan, P.J., Adel, MacCrate, Schmidt and Murphy, JJ., concur.