(dissenting). Petitioner-appellant is the lessee of a residential hotel at 100 Morningside Drive, New York, N. Y.; respondent, Momingside Studios, Inc., is the landlord or lessor of the hotel. Under the terms of the lease, the landlord and tenant expressly agreed that all disputes with regard to whether “ repairs or replacements ” were “ necessary ” and the "work required” relating to the same or the provisions for “additional” rent were subject to arbitration. Claiming that a controversy had arisen between the parties with regard to the necessity for certain work done or repairs by the tenant, the tenant demanded arbitration and a stay of the landlord from prosecuting summary dispossess proceedings in the Municipal Court.
The learned Special Term held that the tenant had the right to arbitrate the items listed on a so-called Schedule B of the landlord’s notice of September 30, 1953, but not the items on a so-called Schedule A of the notice of December 2, 1952, and, accordingly he refused to pass on the rights and obligations of the parties with respect to Schedule A and stayed the proceedings in the Municipal Court only as to items in Schedule B. But the landlord has alleged a breach as to repairs generally in the petitions filed in the Municipal Court without differentiating between the schedules in question.
The factual effect of the landlord’s action may be the forfeiture of the $50,000 deposit, put up by the lessee for security, without giving the tenant the right to question the reasonableness of the landlord’s demands by arbitration, as provided in their agreement. The learned Special Term held that it was not the intention of the parties to enable the landlord to achieve such forfeiture by the three-day demand.
Whether the dispute rests on Exhibit B, A or E, there is a dispute between the parties that basically relates to repairs and the parties should be compelled to arbitrate especially when in a summary holdover dispossess proceeding in the Municipal Court, the landlord may be able to achieve a forfeiture before arbitration has been had on all issues. As to so-called “violations” which Special Term held were not arbitrable, it appears that most of them, if not all of them, also arose through lack of replacement or repair, and, therefore, are also covered under the agreement to arbitrate “any dispute” where repairs are necessary.
Accordingly we dissent from the affirmance of the order appealed from and vote to reverse the order so far as appealed from and stay all Municipal Court proceedings pending arbitration of all issues. The arbitration should proceed expeditiously and he terminated within a reasonable time.
Peck, P. J., Breitel and Bergan, JJ., concur; Dore and Callahan, JJ., dissent in opinion.
Order affirmed, with $20 costs and disbursements to the respondent.