This is an application for an order to have the court appoint an arbitrator in place of one of two arbitrators named in an agreement. On January 12,1956 Hyman Green, one of the arbitrators named in an agreement which provided, among other things, for the arbitration of all controversies between the parties, resigned and caused a letter to that effect to be sent to all interested parties. A request was then made of the respondents by the attorneys for the petitioner that they consent to a substitute arbitrator. This proceeding was commenced upon their refusal to do so.
Section 1452 of the Civil Practice Act provides that in the event the arbitration agreement makes no provision for the naming of arbitrators, or in the filling of a vacancy, the court may do so upon the application of either party to the controversy. Certainly a vacancy occurs when an arbitrator resigns or dies. The section would be without purpose if the court were without power to act. The agreement to arbitrate would be defeated if the law were otherwise. A party who opposes the arbitration could merely sit back, refuse to consent to a substitution and thus make the agreement meaningless. ‘‘ There may be a dominant intention to arbitrate at all events, the machinery of selection being merely modal and subordinate. If so, the failure of the means will not involve as a consequence the frustration of the end. Equity will give specific performance of the principal engagement with variations of method appropriate to the facts.” (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 295.) Here, the intention of the parties is clear and under such circumstance, the courts will come to the assistance of the parties by the removal of the impasse and the extrication of their rights. (Matter of Marchant v. Mead-Morrison Mfg. Co., supra.) The petitioner now asserts that controversies have arisen and finds himself in the incongruous position of not being able to proceed. Under these circumstances, the court will act to correct the situation so that the intention of the parties may be effectuated.
The motion is granted. Submit order on notice in which an arbitrator will be named to act in the place of the resigned arbitrator.