The provision in the contract whereby “ any unadjusted dispute * * * shall be referred to arbitration in New York in the usual manner pursuant to the custom of the Tanners Council,” contained by implication a consent to jurisdiction of this State only in accordance with the terms of the Arbitration Law and to “ any rules or procedural machinery adopted by competent authority in aid of its provisions.” (Gilbert v. Burnstine, 255 N. Y. 348, 357, 358.)
The Arbitration Law provides that an application to compel arbitration shall be heard as a motion (§ 6). Section 3 provides that eight days’ notice in writing shall be given of every application for an order directing that arbitration proceed in the manner provided for in the contract or submission, and further: “ Service thereof shall be made in the manner provided by law for personal service of a summons.”
It is conceded that the respondent is a foreign corporation not doing business in this State, nor licensed so to do. Service of a summons under such circumstances would not confer jurisdiction. Respondents’ attorneys according to a statement contained in them affidavits appear specially.
I am of opinion, therefore, that upon this record jurisdiction of the respondents was not acquired. The order appealed from, therefore, properly denied the application to compel the respondents to proceed to arbitration in conformity with the terms of the contract between the parties. I accordingly dissent and vote for affirmance of the order appealed from.
Order reversed, with twenty dollars costs and disbursements, and motion of petitioner granted, and the cross-motion of B. E. Cole Company denied. Settle order on notice.