The issue in this case is not whether there was a contract for the sale of goods, there plainly was such. The issue is whether the parties agreed to arbitrate.
In the present case, the buyer sent a purchase order which did not contain an arbitration clause, and which stated it could not be superseded by an unsigned contract notwithstanding retention, and that unsigned contracts would be deemed an acknowledgment only. Although the buyer’s purchase order contained a provision that it would not be valid unless signed by both parties, this purchase order was at least an indication that the buyer did not contemplate arbitration and would not be bound by an unsigned confirmation received from the seller.
The day after the buyer’s purchase order was sent, the seller sent an "Acknowledgment of Order.” At the bottom of this acknowledgment of order there appeared a paragraph consisting of 13 long lines of very small type. In the fourth through seventh lines, in no way distinguishable from the rest of the paragraph, there was a provision for arbitration. In my view, this was insufficient to indicate an agreement by the buyer to arbitrate.
"No one is under a duty to resort to arbitration unless by clear language he has so agreed” (Matter of Lehman [Ostrovsky], 264 NY 130, 132) and "parties are not to be led into arbitration unwittingly through subtlety” (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 291).
With respect to arbitration agreements contained in form confirmations of sales contracts, Justice Breitel said, in Matter of Doughboy Inds. (Pantasote Co.) (17 AD2d 216, 218):
*362"This case involves only the application of the arbitration clause. Arguably, a different principle from that applied here might, under present law, govern other of the terms and conditions in either of the commercial forms. The reason is the special rule that the courts have laid down with respect to arbitration clauses, namely, that the agreement to arbitrate must be direct and the intention made clear, without implication, inveiglement or subtlety”.
Where, as here, each party has used its own forms, one containing a provision for arbitration, and the other not, and neither has done something unequivocally referable to the other’s form rather than its own, it has usually been held that there was no agreement to arbitrate. (Matter of Doughboy Inds. [Pantasote Co.], supra; Matter of Layton-Blumenthal [Wasserman Co.], 280 App Div 135.)
Particularly apropos to the present case, with its buried arbitration clause, are the remarks of this court in Matter of Doughboy Inds. (Pantasote Co.) (supra, p 220): "As pointed out earlier, an agreement to arbitrate must be clear and direct, and must not depend upon implication, inveiglement or subtlety * * * It follows then that the existence of an agreement to arbitrate should not depend solely upon the conflicting fine print of commercial forms which cross one another but never meet”.
Again, in the Doughboy case, this court considered the effect of section 2-207 of the Uniform Commercial Code on the "problem of conflicting commercial forms” (p 221).
In essence, that section provides that a confirmation form sent within a reasonable time is effective "even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.” (Uniform Commercial Code, § 2-207, subd [1].) However, the statute says that as between merchants such additional terms become part of the contract unless "they materially alter it.” (Uniform Commercial Code, § 2-207, subd [2], par [b].) As to this provision, this court, in the Doughboy case, said (pp 222-223): "On this exposition, the arbitration clause, whether viewed as a material alteration under subsection (2), or as a term nullified by a conflicting provision in the buyer’s form, would fail to survive as a contract term. In the light of the New York cases, at least, there can be little question that an agreement to arbitrate is a material term, one not to be injected by implica*363tion, subtlety or inveiglement. And the conclusion is also the same if the limitation contained in the offer (the buyer’s purchase order) is given effect, as required by paragraph (a) of subsection (2) of the new section.”
Bearing in mind the fact that "the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms” (Doughboy Inds. supra, p 219), I think there was just no meeting of the minds on the arbitration clause.
In a case, which on its facts appears to me to be indistinguishable, this court affirmed a stay of arbitration on the opinion of Special Term. In that case, in Matter of Trim Corp. of Amer. v Richloom Fabrics Corp. (49 AD2d 845), New York County Clerk’s Index No. 13807/74, Special Term denied arbitration for the reasons I have stated.
I would reverse the order appealed from, on the law, and grant the application of petitioner-appellant to stay the arbitration.
Yesawich, J., concurs with Kupferman, J. P.; Markewich, J., concurs in an opinion; Silverman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on January 13, 1977, affirmed without costs and without disbursements.