May 7, 1957
David G. Haskins and Miles W. Hirson for petitioner.
Lawrence R. Condon for respondents.
In this proceeding the respondents move for an order directing that all controversies between the parties must be heard by the two arbitrators selected by the parties and for the court to set a date for the commencement of the hearings. Petitioner cross-moves for an order directing the two arbitrators to appoint an umpire. The contract provides:
"and if the two arbitrators do not agree then a third or umpire shall be appointed by the two.
"If the two cannot agree on an umpire then either party may apply * * * for the appointment of a fair and impartial third person, and the decision of the majority of the arbitrators shall be final and binding on the parties."
The parties having entered into a contract containing a provision for the settlement of disputes by arbitration in a certain manner the court will not rewrite the contract but will decree performance in accordance therewith. Each of the parties having selected an arbitrator they are now in a position to proceed in the manner chosen by them. The time and place of the hearings is for the arbitrators to designate (Civ. Prac. Act, § 1454). Pursuant to the arbitration clause an umpire may be appointed by the arbitrators in the event of a disagreement between them. No disagreement between the arbitrators is alleged nor does there appear to be any at this time. The court can neither anticipate that the two arbitrators will be in accord with each other nor assume that they will disagree. Until such time that the arbitrators disagree the arbitration clause cannot be invoked for the purpose of appointing an umpire. The contention of the petitioner that an umpire should be appointed at the very outset to avoid a rehearing and duplication of proceedings in the event the two arbitrators disagree is untenable in view of the language used in the arbitration clause. The motion and cross motion are both denied accordingly.