Ernest J. Michel & Co., Inc. v. Anabasis Trade, Inc. , 50 N.Y.2d 951 ( 1980 )

50 N.Y.2d 951 (1980)

Ernest J. Michel & Co., Inc., Appellant,
v.
Anabasis Trade, Inc., Respondent.

Court of Appeals of the State of New York.

Argued June 2, 1980. Decided June 24, 1980.

Michael C. Wimpfheimer and Henry Wimpfheimer for appellant.

Donald L. Kreindler and Michael D. Blutrich for respondent.

Kurt J. Wolff and Daniel Wallen for American Textile Manufacturers Institute, Inc., amicus curiae.

Cecil A. Citron and Michael Wexelbaum for Lawyers Association of the Textile Industry, amicus curiae.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum; Judge GABRIELLI concurs on constraint of Schubtex, Inc. v Allen Snyder, Inc. (49 N.Y.2d 1).

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

We agree with the Appellate Division that appellant buyer, by its affirmative actions, agreed to submit all disputes arising out of the contracts in issue to arbitration. An agreement to arbitrate was manifested by appellant by signing the first confirmation of order form with admitted knowledge that an arbitration clause was contained therein and, thereafter, by receiving and retaining six additional confirmations of orders on the same contract form without objection except for a request for one change as to credit terms, which change was made by the respondent seller. (See Uniform Commercial Code, § 2-204, subd [1]; Schubtex, Inc. v Allen Snyder, Inc., 49 N.Y.2d 1.)

Matter of Marlene Inds. Corp. (Carnac Textiles) (45 N.Y.2d 327) is clearly distinguishable. There, contradictory contract forms were exchanged between the parties; neither party had signed the other's form and no evidence existed that the recipient of the contract containing the arbitration clause was aware of its presence or had agreed to arbitrate.

Order affirmed.