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MTR. OF FIELDS, INC. v. AMER. HYDROTHERM

5 A.D.2d 647 (1958)

In the Matter of Charles S. Fields, Inc., Appellant, v. American Hydrotherm Corporation et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

May 27, 1958.

Attorney(s) appearing for the Case

Warren L. Schnur for appellant.

Robert E. Costello of counsel (Mumma, Crane, Costabell & Savarese, attorneys), for American Hydrotherm Corporation, respondent.

BOTEIN, P. J., BREITEL and RABIN, JJ., concur in Per Curiam opinion; FRANK, J., dissents in opinion, in which McNALLY, J. concurs.

Per Curiam.

We agree with the Special Term's ruling that the claim of rescission — the specific ground on which petitioner (Fields) based its motion to stay arbitration — is a question for the arbitrators. The important question for determination however, relates to Fields' claim that there was never any agreement to arbitrate. This point was raised for the first time in a reply affidavit used on the motion...

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