Sitting by Designation, dissenting:
I dissent, with respect and deference. The case is close, but I think the policy of the law to favor arbitration should save the day for appellant. Clauses 7 and 10 are somewhat inconsistent, but rules of construction require us to give meaning and effect to both clauses if possible. See, e.g., Brown v. Financial Services Corp., 489 F.2d 144 (5th Cir.1974); Chase Manhattan Bank v. First Marion Bank, 437 F.2d 1040 (5th Cir.1971); Weiss v. Weiss, 52 N.Y.2d 170, 418 N.E.2d 377, 436 N.Y.S.2d 862 (N.Y.1981); Integrated Sales, Inc. v. Maxwell Corporation of America, 94 A.D.2d 221, 463 N.Y.S.2d 809 (App.Div.1983). The statutory policy requires that this be done in respect to an arbitration contract as readily as in any other kind. Yet the court construes one, clause 7, in such a manner as to make clause 10 null and void in all respects.
Clause 7 need not be so construed. In view of its opening words—
In the event of a breach or threatened breach by Hull of the confidentiality or noncompetition provision of this Agreement * * *
everything else that follows can be construed as relating to not any alleged breach by Hull, but only a breach of provisions relating to confidentiality or noncompetition. This reading is consistent with the second sentence of clause 7, which the majority concludes must be construed to make Norcom’s obligation to arbitrate illusory. The sentence starts that it is “recognized that the services to be rendered under this Agreement by Hull are special, unique, and of extraordinary character * * * ” (emphasis supplied); The emphasized terms are terms of art used to denote that the employee is a “key man” and therefore that a restrictive employment contract is conscionable. See, e.g., Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 274, 196 N.E.2d 245, 246 N.Y.S.2d 600, 605 (N.Y.1963). Given this fact, it is a reasonable interpretation that the rest of the sentence relates to the restrictive covenant of employment provision. Other kinds of breaches by Hull can readily be imagined, and clause 7 can be read as saying nothing as to them. Such a reading would save clause 10 from nullity under the view of New York law stated by the court.
I can accept that view as correct though I am not sure New York law does not favor arbitration and save an arbitration clause from nullity when the reasons for doing so are less clear than those stated. Riccardi is a succinct memorandum opinion and does not purport to disapprove or overrule other cases by the various New York courts. Miner v. Walden, 101 Misc.2d 814, 422 N.Y.S. 335 (N.Y.Sup.Ct.1979), is instructive by negative inference. An agreement to *1552arbitrate future malpractice claims against a doctor about to perform an operation, excludes from arbitration any claim by the doctor for his fee. This being the only kind of claim he would be likely to have after the operation, effectually arbitration is confined to one side. This would be res ipsa loquitur for invalidity and no other reason would be needed if New York law were as here supposed. Yet the court finds it necessary to support to conclusion by other grounds, nowhere stating the one given to be conclusive. It concludes invalidity from the fact it is a “contract of adhesion” and unconscionable in its terms. See also Deutsch v. Long Island Carpet Cleaning Co., 5 Misc.2d 684, 158 N.Y.S.2d 876 (Sup.Ct.App. Term 1956) (the court holding that under the circumstances of one party unilaterally inserting a one-way arbitration clause on the back of a receipt, “it cannot be said to represent a conscious agreement to limit arbitration to the customer’s claims only. It is therefore unenforceable for lack of mutuality of obligation.”). I am not at all sure, therefore, that New York law would not accept as sufficient any arbitration agreement except the eases supposed in Riccardi, where arbitration was quite expressly available to but one side only. A further depletion of mutuality as a barrier to enforcing an arbitration clause is found in Waldron v. Goddess, 93 A.D.2d 706, 460 N.Y.S. 793 (App.Div.1983), rev’d on other grounds, 61 N.Y.2d 81, 461 N.E.2d 273, 473 N.Y.S.2d 136 (N.Y.1984), which cites Riccardi for the proposition that want of mutuality invalidates an arbitration clause only when “want of mutuality would leave a party without valid or available consideration to support his promise.”
The New York Court of Appeals, the highest court of that state, has clearly stated that mutuality “is not always essential to a binding contract * * Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464, 443 N.E.2d 441, 457 N.Y.S.2d 193, 196 (N.Y. 1982). The fundamental requisite, states the court, is the presence of consideration “[f]or, while coextensive promises may constitute consideration for each other, ‘mutuality’, in the sense of requiring such reciprocity, is not necessary when a promisor receives other valid consideration * * *.” Id. (Citations omitted.)
In our case, the majority holds that if consideration rather than mutuality is the focus for consideration, then the consideration for one party’s promise to arbitrate must be another’s promise to arbitrate at least some class of claims. While I believe Norcom is obligated to arbitrate under the contract, I do not see this as clearly necessary under New York law, which is, of course, the law that we construe here. I consider again the court of appeal’s statement on the issue.
Far from consideration needing to be coextensive or even proportionate, the value of measureability of the thing forborne or promised is not crucial so long as it is acceptable to the promisee * * *. [The court will] not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party or is of any substantial value to anyone. (Hamer v. Sidway, 124 N.Y. 538, 545, 27 N.E. 256.)
Weiner, 57 N.Y.2d at 464-65, 443 N.E.2d at 445, 457 N.Y.S.2d at 197.
Given the court of appeal’s interpretation of New York contract law, I cannot agree with the majority that the consideration here was necessarily insufficient.