
    In the Matter of the Arbitration between List Industries Corporation et al., Petitioners, and Herman Gelber et al., Respondents.
    Supreme Court, New York County,
    May 8, 1958.
    
      O’Brien, Driscoll & Rafferty for List Industries Corp., petitioner.
    
      Archie Weltman for Marcus Loew Booking Agency, petitioner.
    
      
      Davis, Polk, Wardwell, Sunderland S Kiendl for City Entertainment Corp., petitioner.
    
      Schwarts S Frohlich for Fabian Theatres Corp., petitioner.
    
      Boyall, Koegel, Harris S Caskey for Roxy Theatre, Inc., petitioner.
    
      Jerome B. Golden for American Broadcasting-Paramount Theatres, Inc., petitioner.
    
      George Moskowits for Radio City Music Hall Corp., petitioner.
    
      Cooper, Ostrm S De Vareo for Herman G-elber and others, respondents.
   Thomas A. Aubelio, J.

The respondents as trustees of the pension and welfare funds of the named union have brought action against the petitioners employers to recover from them the contributions required to be made pursuant to the basic agreement and the trust agreement. Petitioners now move to stay that action and to compel arbitration, and the application is based on the contention that the controversy arising among the parties and that involved in the action are identical and that it is arbitrable under the collective bargaining agreement. The board of trustees, consisting of an equal number of members representing management and labor, has authorized the suit. The right to recover the required contributions is independent of the collective bargaining agreement even though it may rest thereon as well as on the trust agreement and is independent of the arbitration provision contained in the collective bargaining agreement on which petitioners rely. The right of action does not belong to the union. Apart therefrom, no controversy is projected or is claimed or shown to exist as to the basis of the obligation or of its measurement. The complaint in the action rests on the collective bargaining agreement, as amended, the provisions thereof fixing the obligation in issue and the measure thereof and the failure to pay upon demand. In the present posture as presented, therefore, the trustees are suing upon a simple debt embracing no dispute save the amount due upon the agreement as written and, as to that, it is not even suggested any controversy exists.

The motion is denied.  