Opinion
Argued May 20, 1946
Decided June 13, 1946
Appeal from the Supreme Court, Appellate Division, First Department, LEVY, J.
Victor Rabinowitz for appellants.
Abraham Unger for New York City Chapter, National Lawyers Guild, amicus curiae, in support of appellant's position.
John H. Waters, Francis R. Stark and Clarence W. Roberts for respondent.
The removal of the arbitrator was within the discretion of the Special Term. The exercise of that discretion was approved by the Appellate Division and we are required to presume that all questions of fact were there determined in favor of the respondent (Civ. Prac. Act, § 603). We are not able to say that the courts below abused their discretion.
Our conclusion is that the order of the Appellate Division should be affirmed, with costs, and the third question certified answered in the affirmative, it being unnecessary to answer the other questions.
I dissent and vote to reverse and to deny the motion to remove the arbitrator, Pomerantz. The parties concede his honesty and ability. No charge is made against him of bias, prejudice or interest as to the controversy to be arbitrated. After he had been regularly appointed arbitrator, he was removed, solely because he holds and had expressed certain social, economic and political views. Those views are not vicious, antisocial or unlawful. They are held by great numbers of other good citizens, including judges, high and low. They are not grounds for removing or disqualifying an arbitrator, any more than they would be grounds for removing or disqualifying a judge. The imposition of such tests is to me abhorrent and there is no legal precedent for it. Assuming the court had discretion, that discretion was here abused.
LOUGHRAN, Ch. J., LEWIS, CONWAY, THACHER, DYE and FULD, JJ., concur in Per Curiam opinion; DESMOND, J., dissents in memorandum.
Order affirmed, etc.