
    In the Matter of the Arbitration between Couture Fabrics, Limited, Petitioner, and Phyllis Dee, Inc., Respondent.
    Supreme Court, Special Term, New York County,
    November 30, 1959.
    
      Gainsburg, Gottlieb, Levitan & Cole (Eugene H. Feldman of counsel), for petitioner.
    
      Kommel & Rogers (Myron Kommel of counsel), for respondent.
   Jacob Markowitz, J.

This is a motion to confirm an award of arbitrators. In opposition thereto the respondent brings to the attention of the court that, by mistake, its attorney in Florida advised it, the petitioner, and the arbitrators that pursuant to Florida law the agreement to arbitrate was unenforcible. They were advised of a Supreme Court case in that State decided in 1955. The said attorney had overlooked that an arbitration statute had been enacted in 1957. The respondent defaulted and an award was made in favor of the petitioner. On these facts, the respondent requests that the default be opened on such terms as the court decides. While sufficient has been shown here to permit the court to open a default judgment under section 108 of the Civil Practice Act, or under the inherent power of the court, the difficulty is that there is no judgment or order of the court over which it has control. Article 84 of the Civil Practice Act provides the exclusive manner by which an award may be corrected, modified or vacated. The circumstances here shown do not come within its purview, and, accordingly, the motion to confirm the award must be granted.

Settle order.  