Burr v. Ulster Knife Co.

Defendant appeals from an order denying its motion for summary judgment for a dismissal of the complaint upon the ground that the action is without merit. Plaintiff sues on behalf of herself and fellow members of her labor union to compel defendant to furnish certain wage records and make certain back wage payments pursuant to agreements reached and made before an arbitrator of the State Board of Mediation. These agreements defendant admits but by its moving affidavits it asserts full performance since the suit was instituted. We cannot agree that the agreements made by the parties at a “ conference ” before the arbitrator amounted to a decision and award in arbitration under the agreement to arbitrate. We consider that the agreements reached were of a nature susceptible of enforcement by specific performance and that the action is not without merit, and that the denials by and on behalf of the plaintiff are such as to tender a triable issue. Moreover, the motion for dismissal upon the ground stated does not seem sanctioned. The action is not for the specific performance of a written contract for the sale or purchase of property. (Rules . Civ. Prac., rule 113, subd. 7.) Order affirmed, with $10 costs and disbursements.. All concur. [See post, p. 979.] 1