We have a "written contract" and a provision therein "to settle by arbitration a controversy arising between the parties to the contract." We have such a controversy. The agreement to arbitrate is a valid one under the language of Arbitration Law, § 2.
The decision of Matter of Fletcher (237 N.Y. 440) is *Page 280 not controlling. While the language of the opinion may be unnecessarily broad for general application, the decision rests wholly on the distinction between a valuation and an arbitration. The agreement for valuation was inserted in the contract in that case to prevent a controversy, not to settle one. The distinction is pointed out by ESHER, M.R., in Matter of Carus-Wilson andGreene (18 Q.B.D. 7, at p. 9) as follows:
"If it appears from the terms of the agreement by which a matter is submitted to a person's decision, that the intention of the parties was that he should hold an enquiry in the nature of a judicial enquiry, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial enquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising, not of settling them when they have arisen, and where the case is not one of arbitration but of a mere valuation There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence or arguments. In such cases it may be often difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances."
The arbitrators in this case are to proceed judicially and reach a determination based on evidence. The controversy is made arbitrable by the agreement of the parties. It is not a compulsory arbitration. The court makes no contract for the parties. It enforces one already in existence. The court should enforce true arbitration contracts rather than permit the parties to disregard them.
It by no means follows that the findings of the arbitrators *Page 281 may be enforced by the court by the remedy of specific performance. No man may be compelled to work for another or to continue another in his employment. I hold merely that industrial disputes as to future wages may be submitted to arbitration where the parties so agree. The incapacity of a court of law to effectuate justice by enforcing the agreements of parties should not be readily admitted. The court should be keen to enable the parties to ascertain their rights in the mode prescribed by them for that purpose.
The order should be affirmed, with costs.
CARDOZO, Ch. J., LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CRANE, J.; POUND, J., dissents in opinion; HUBBS, J., not sitting.
Order reversed, etc.