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December 17, 1956


The opinion of the court was delivered by: Campbell, District Judge.

This case is now before the Court on plaintiff's motion for summary judgment and defendant's motion to dismiss. The motion for summary judgment is supported and opposed by written briefs; additionally, plaintiff's motion is buttressed by affidavits and exhibits attached to the motion. The motion to dismiss stands without any supporting argument or authority.

Since no opposing affidavits have been filed, and since defendant, in its brief, admits the facts advanced by the plaintiff as being essentially correct, it can reasonably be concluded that the facts of the case are not in dispute and that this is a case properly submitted for summary judgment if the law as applied to these facts warrants judgment for the movant.

Plaintiff is a corporation organized and existing under and by virtue of the laws of the State of New York; defendant is a corporation organized and existing under and by virtue of the laws of State of Illinois. The matter in controversy exceeds $3,000, exclusive of interest and costs.

On October 18, 1954 and on October 21, 1954, the parties reduced to writing two separate agreements whereby plaintiff undertook to sell and defendant undertook to purchase certain quantities of Iranian dates. Photostatic copies of these contracts are attached as Exhibits A and B, respectively, to the affidavit of Frank Kraus, vice-president of the plaintiff corporation. Among other provisions of the agreements which are not material here, the parties agreed to submit to arbitration any dispute arising under the contracts. This provision of each contract provides as follows:

    "Any controversy or claim arising out of or
  relating to this contract or breach thereof,
  shall be settled by arbitration by the
  Association of Food Distributors, Inc., of New
  York in accordance with its rules, then

Thereafter, a controversy arose between the parties as to the quality of the dates delivered under each of the two contracts, defendant refusing to tender payment under either contract. Accordingly, the dispute was submitted for arbitration to the Association of Food Distributors, Inc., of New York, hereinafter referred to as the "Association".

At all times pertinent to this controversy, Section V of the rules of the Association provided that the hearing on the arbitration shall be held in New York. Likewise, Section XIV of these rules provided as follows:

"Waiver of Personal Service

    "Each party to a submission or other agreement
  which provides for arbitration under these Rules,
  shall be deemed to have consented that any
  papers, notices or process necessary or proper
  for the institution or continuation of an
  arbitration proceeding under these Rules or for
  the confirmation of an award and entry of
  judgment on an award made thereunder, including
  appeals in connection therewith, may be served
  upon such party (a) by mail addressed to such
  party's last known address or (b) by personal
  service, within or without the state wherein the
  arbitration is to be held, or within or without
  the limits of the jurisdiction of the Court
  having jurisdiction in the premises (whether such
  patty be within or without the United States of
  America) or (c) where a party to a controversy is
  not located in the City of New York, by mail or
  personally, as provided in (a) and (b) hereof,
  upon his agent or broker through whom the
  contract was made; provided that a reasonable
  time shall be allowed each party to appear and

Upon submission to arbitration, the Association gave notice by mail to both parties of the fact that arbitration proceedings were to be held. The defendant acknowledged receipt of said notice of arbitration by written letter dated January 20, 1955, in which letter, it requested an extension of two weeks from the date set for the arbitration hearing. A photostatic copy of this letter is attached to the affidavit of T.R. Schoonmaker, Executive Secretary of the Association, and is marked as Exhibit A to said affidavit.

The arbitration hearings were continued as requested by the defendant, the defendant receiving notice of the new date. Thereupon, the defendant notified the Association, by telegram, that it could not be present at the hearing and that it was forwarding a written presentation of its case by mail in lieu of its being present in person. A photostatic copy of this telegram is attached as Exhibit C to the affidavit of T.R. Schoonmaker. Thereafter, a written presentation and argument, sworn to by the defendant, and to which several documents were attached, was received from the defendant by the Association. A photostatic copy of this written presentation is attached as Exhibit D to the affidavit of T.R. Schoonmaker.

Arbitration hearings were subsequently held, testimony submitted and the arbitrators made two awards, dated February 9, 1955, in favor of the plaintiff and against the defendant in the amounts of $3,877.75 on the October 18, 1954 contract and $3,806 on the October 21, 1954 contract. Photostatic copies of these awards are attached as Exhibits E and F, respectively, to the affidavit of T. R Schoonmaker.

Thereafter, on March 18, 1955, plaintiff filed a petition in the Supreme Court of the State of New York, in the County of New York, against the instant defendant, in Cause No. 4919-1955, praying that an order be entered in said court confirming each of the aforementioned arbitration awards and requesting that judgment be entered thereon. A copy of said petition is attached as Exhibit A to the affidavit of Alexander P. Blanck, New York attorney for the plaintiff corporation.

Thereupon, on March 18, 1955, the Supreme Court of New York entered an order in connection with said petition, and against the instant defendant, directing the defendant to show cause on April 22, 1955, why an order should not be entered confirming the two arbitration awards and entering judgment thereon. Said order further directed that service of a copy of the order, together with a copy of the petition and affidavits upon which it was granted, beyond the State of New York on or before April 6, 1955, would be deemed sufficient ...

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