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4 N.Y.L. Jist 1 (1939-1940)

handle is hein.journals/newrojis4 and id is 1 raw text is: ' i w oC r n in w a o rn . A Compendiums of Current Decisions Reported in the New York Law Jounsal VOL. 4 NO. 1 Page 1 $5.00 per annum Issued Weekly by the Lexapedia Publishing Co., Inc 45 West 45th Street, New York, N.Y. Entered as second-class matter May 12, 1937, at the Post Office New York, N.Y. Copyright, 1939 Lexapedia Pub. Co., Inc September 28, 1939 *KEY TO REFERENCE: Title-court-justice--date decision published in New York Law Journal-page--column ALIMONY & COUNSEL FEES Whatever difficulties beset plaintiff in her efforts to show defendant's true in- come, and whatever suspicions may be aroused by defendant's unsatisfactory explanations, the fact remains that an award of alimony must be based upon proof and not surmise. Reilly-SamelSupWWitschief19-14164515 Ins Law 55-b, protecting disability ben- efits from legal or equitable process, is inapplicable to the claim of a wife for support (cf 184 AD 656; 150 AD 538). ¶iThere is no validity to the contention that future disability benefits are not property within the meaning of CPA 1171-a (251 AD 272 is distinguishable, in that the right to future disability ben- efits does not depend on the rendering of future services by the husband, but on a continuance of his disability). Wirtschafter-SamelSupNYlBernstein19-12160917 ANNULMENT Held, there is no proof of misrepre- sentation where, at best, defendant mere- ly said that he made a mistake when he married plaintiff. Wilkomer-Samel SupKI Cuff[9-14164317 ARBITRATION Where dispute between employer and discharged employee had been arbitra- ted and the award confirmed, whereafter the employee served a demand for a further arbitration claiming salary sub- sequently accrued, on the theory that he had been wrongfully discharged and the award theretofore made must be deemed to include every element of damage aris- ing from such discharge since the action is indivisible and one recovery is a bar to any further recovery (206 NY 363), held, a motion to stay such further ar- bitration must be denied since there is no provision of law for such motion; the remedy of the employer is to re- fuse to arbitrate on the ground there is nothing to arbitrate,wherefore it becomes the duty of the employee to petition the court for a direction that the arbitration proceed. [N.B.: The only provision for a stay is contained in CPA 1451 which has no application to the situation pre- sented]. Pierce-Brown BuickISupWlWitschief|9-14164513 On petition for order directing arbi- tration under contract on question of the discharge of one of the employees of respondent, who counters with the claim that it had not discharged such employ- ee, but that he had refused to work, wherefor respondent challenges the right to direct arbitration under CPA 1450 in advance of a trial by the court or a jury, held, respondent's contention is overruled; its attitude is tantamount to an unwillingness to arbitrate, which is a failure to comply with the contract, as to which failure no substantial issue is raised as would require a preliminary trial (CPA 1450); hence, arbitration is ordered. M of HawleylSupNYlBernstein|-16166717 A dispute as to whether or not there is a binding agreement between the par- ties is not arbitrable. Barrett-Graham ISupNYjBernstein 19-12161011 ARREST On denying motion to vacate order of arrest, held, while the affidavits raise a serious question as to whether the trans- actions which form the basis of the ac- tion created a fiduciary relationship or merely a debtor and creditor relation- ship, the fact that the complaint sets up all the essential elements of an action for conversion or for misapplication of money (to bring the case within the pro- visions of CPA 826) precludes the court from trying out the issue on a motion.