Marcus Bros. Textiles, Inc. v. Avondale Mills, Inc.

Murphy, P. J.,

dissents in the following memorandum: The arbitration clause in each sales note did contain a provision that any controversy as to the modification of the sales note would be settled by arbitration. In view of this broad arbitration provision, the question of whether the memoranda modified or superseded the sales notes is a matter to be resolved at arbitration. (Matter of Riccardi [Modern Silver Linen Supply Co.], 36 NY2d 945, 947.) Thus, it is improper for this court to pass upon the question of whether memoranda represent valid contracts between parties. The parties should proceed to arbitration upon the demand in its present form. The arbitrators, of course, are free either to accept or reject the memoranda as binding contracts. For the reason stated, the judgment should be affirmed.