Smith, J. (dissenting):
The order directed that the parties file with the clerk of the committee on arbitration of the Silk Association of America an agreement in form approved by said committee submitting all disputes and controversies arising out of the contract of June 27, 1923, to arbitration. The contract is in form as follows:
“ S. A. Wenger & Co., Inc.,
“ 95 Madison Avenue,
“ New York, N. Y.
“Telephones Madison Square 6466
6467
L/C # 14 ‘ 6468
“ Proffer Silk Hosiery Mills, Inc.,
“ 276-5th Avenue,
“ New York, N. Y.
“ New York, June 27, 1923.
“ Gentlemen.— We beg to confirm the following sale made to you for our Yokohama Branch:
“ Sixty (60) Bales XX Crack White Japan 13 /15 den. at $8.80 per lb.
“ Sales Governed by Raw Silk Rules & Regulations of the Silk Association of America.
“ Price per pound, Cost, Freight and Insurance New York. Import duties or taxes, if levied, to be for Buyer’s account.
*792“ Weights Net Shipping Weights Loss Guaranteed not to Exceed 2%.
“ Shipment from Yokohama — end of July/Aug/Sept.
“ Marine Insurance to be covered by Shippers.
“ Reimbursement by 4 mos. sight drafts on New York, for which a Banker’s Letter of Credit to be furnished by buyer within ten days prior to time of shipment.
“ Arbitration. In the event of any dispute arising relative to the fulfillment of any of the above terms, and failing an amicable adjustment, it shall be settled by arbitration, under the Rules of the Silk Association of America, the decision of the Arbitrators to be final and binding on both parties.
“ Yours very truly,
“ S. A. WENGER & CO. INC.
“ S. A. Wenger
“ Pres. & Treas.”
The petitioner alleges that on the 27th day of June, 1923 (the date the contract was made), the forty bales referred to in the contract had been purchased by the petitioner for the account of the defendant and were marked and appropriated to the contract and stored in the petitioner’s go-downs at Yokohama, at the risk of the defendant; that by reason of the earthquake and the fire in Yokohama the forty bales were destroyed on or about September 1, 1923.
The defendant objects to the application of the arbitration clause in the contract on the ground that only a question of law is involved; that the contract was a c. i. f. contract and could not be performed by the petitioner except by delivery on board ship at Yokohama and that an appropriation of the forty bales to the contract was not a performance thereof. The defendant, therefore, claims that the clause in the contract providing for arbitration “ in the event of any dispute arising relative to the fulfillment of any of the above terms ” could not apply.
The words in the contract “ fulfillment of any of the above terms,” mean, without any doubt, performance of any of the contract terms. While the contract in question refers to a “ sale ” being made by the petitioner to the defendant, there are other words in the contract which seem to indicate that the petitioner was to purchase the goods for the defendant, as the contract refers to “ reimbursement ” being made by the defendant. The defendant was to furnish sight drafts on New York against the bankers’ letter of credit within ten days prior to the time of shipment. The end of July was one time mentioned for shipment from
*793Yokohama. A dispute has arisen, therefore, relative to the fulfillment of the terms of the contract. If there were any terms, the fulfillment of which was in dispute, the arbitration order was correct.
It might very properly be that the rules of the Silk Association and custom of the silk trade would have considerable bearing upon the disposition of the controversy before the arbitrators, but these legal questions could be more properly disposed of by the court in the proceeding.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.