In re the Arbitration Between Kahn & Feldman, Inc. & Rothschild

Order affirmed with twenty dollars costs and disbursements. No opinion.

Townley, Glennon and Dore, JJ., concur; Untermyer, J., dissents with opinion, in which Martin, P. J., concurs.

Performance of the contract in the present case would not necessarily have been unlawful, thus frustrating the intention of the parties. Unlike Matter of Kramer & Uchitelle, Inc. (288 N. Y. 467), the General Preference Order here under consideration contained provisions whereby special permission might be secured to perform such contracts. It cannot be known whether such permission would have been granted or refused in the present case, for the reason that the petitioner failed to make any application. We think, however, that it cannot be said that performance of the contract was necessarily illegal and the arbitration provisions unenforceable, so long as there remained any possibility of lawful performance. (Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437.) The controversy, therefore, should be submitted to arbitration where it may be determined whether, if reasonable effort had been made, the contract could have been performed.

The order should be reversed and the motion denied.