
    In the Matter of the Arbitration between Samuel Bronston, Appellant, and Barnett Glassman, Respondent.
    Argued May 24, 1961;
    decided July 7, 1961.
    
      
      Jesse Moss for appellant.
    I. There is no existing contract under which arbitration may be demanded. (Matter of Minkin [Halperin], 279 App. Div. 226, 304 N. Y. 617; Matter of Sanders, 280 App. Div. 781.) II. The case is ruled by Matter of Minkin (Halperin) (279 App. Div. 226, 304 N. Y. 617) and not by Matter of Stein-Tex (Ide Mfg. Co.) (9 A D 2d 288). III. An arbitrable dispute does not come into existence merely because respondent says there is one. (Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917; Lucio v. Curran, 2 N Y 2d 157.)
    
      Herman Chaityn and Edwin M. Slote for respondent.
    The motion to stay this arbitration should be denied because there is an existing contract to arbitrate; there are disputes between the parties thereunder which must be arbitrated, and Bronston refused to arbitrate. (Matter of Stein-Tex [Ide Mfg. Co.], 19 Misc 2d 123, 9 A D 2d 288; Matter of Compagnie Francaise des Petroles, 279 App. Div. 851; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of City Sewing Center [Portman Sewing Mach. Co.], 279 App. Div. 784, 279 App. Div. 893, 304 N. Y. 986; Matter of Kahn [National City Bank], 284 N. Y. 515; Klein Coat Corp. v. Peretz, 4 Misc 2d 341; Matter of Potoker [Brooklyn Eagle], 2 N Y 2d 553; Matter of Croset [Mount Vernon Housing Auth.], 275 App. Div. 1051; Steelworkers v. Warrior & Gulf Co., 363 U. S. 574; Steelworkers v. Enterprise Corp., 363 U. S. 593; Steelworkers v. American Mfg. Co., 363 U. S. 564; Towner v. Berg, 5 A D 2d 481; Riggs v. 
      Palmer, 115 N. Y. 506; Simon v. Simon, 274 App. Div. 447; Farnham v. Farnham, 204 App. Div. 573; Celmer v. Feinborough Homes, 253 App. Div. 832; Matter of Amerotron Corp. [Shapiro Woolen Co.], 3 A D 2d 899; Matter of Kellogg Co. [Monsanto Chem. Co.], 9 A D 2d 744; Matter of Minkin [Halperin], 279 App. Div. 226; Matter of Sanders, 280 App. Div. 781; Lucio v. Curran, 2 N Y 2d 157; Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 N. Y. 360.)
   Fuld, J.

We all agree that, where a general release is unequivocal and unambiguous, the mere assertion that there is a dispute concerning its meaning does not create an arbitrable issue since, under such circumstances, it may not be said that a bona fide dispute exists. (See Matter of Exercycle Corp. [Maratta], 9 N Y 2d 329, 334; Matter of Binger [Thatcher], 304 N. Y. 627; Matter of Minkin [Halperin], 304 N. Y. 617.) However, in view of the context in which the releases under consideration were drawn, it is clear that they are sufficiently dubious in content and meaning to require that the matter be submitted to arbitrators. This is, indeed, accentuated and confirmed by the circumstance that the judges of both the Appellate Division and of this court have given variant constructions to the documents.

The stay of arbitration was properly denied and, accordingly, the order appealed from should be affirmed, with costs.

Froessel, J. (dissenting).

We vote to reverse. In the settlement agreement of May 29, 1959, it was provided that “ all ” claims other than the rights and obligations contained in that agreement which any of the parties had against any other party “ are released and forgiven”. On June 25, 1959, pursuant to said May 29th agreement, a general release was given to appellant and his wife by respondent and his wife ‘£ excepting only obligations arising out of ’ ’ the May 29, 1959 agreement. It further provided: ££ This release may not be changed orally.” It is unambiguous and has never been set aside. As Mr. Justice Yalexte said aptly below, ££ If arbitration is to be permitted in this case, no release, irrespective of its clarity and unequivocal language, is safe from collateral attack by the mere assertion by a party that he did not intend to mean what the release says. We undermine the foundations of general releases if we permit arbitration here.”

We cannot conceive how it may reasonably be said that the arbitration provision of the 1952 agreement survived the May 29, 1959 agreement and the June 25, 1959 release. There was no longer a subsisting promise to arbitrate (Matter of Minkin [Halperin], 304 N. Y. 617; Matter of Kramer & Uchitelle, 288 N. Y. 467,471). Merely asserting a dispute as to an unequivocal, unambiguous general release which provides that it may not be changed orally does not create an arbitrable issue (Matter of Binger [Thatcher], 304 N. Y. 627; Matter of Minkin [Halperin], supra). The January 28, 1959 release has nothing to do with this appeal. The release here involved is not a conditional one, nor is it a purported release or cancellation of an arbitration agreement. It is as clearly unequivocal as words can make it. As Judge Fuld said in Raleigh Associates v. Henry (302 N. Y. 467, 473), “ we concern ourselves with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote ’ ’.

The order appealed from should be reversed and the stay of the arbitration granted, with costs.

Chief Judge Desmond and Judges Burke and Foster concur with Judge Fuld; Judge Froessel dissents in an opinion in which Judges Dye and Van Voorhis concur.

Order affirmed.  