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  • Norman C. Bernhardt v. Polygraphic Company of America, Inc., 235 F.2d 209, 2d Cir. (1956)

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    This document is a court opinion from the United States Court of Appeals for the Second Circuit regarding a dispute over an employment contract containing an arbitration clause. The court granted the defendant's motion to stay trial court proceedings pending appeal of the trial court's denial of the defendant's motion to compel arbitration. Specifically, the court found that the order denying arbitration was appealable, that the defendant had shown the possibility of reversal on appeal and hardship without a stay, and that the plaintiff would not be prejudiced by a delay in trial proceedings. However, the court noted that the defendant's notice to examine the plaintiff before trial could constitute waiver of the right to arbitration, and allowed the plaintiff to file motion papers on that issue to be addressed during the

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    Filed: 1956-07-24 Precedential Status: Precedential Citations: 235 F.2d 209 Docket: 209_1

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    This document is a court opinion from the United States Court of Appeals for the Second Circuit regarding a dispute over an employment contract containing an arbitration clause. The court granted the defendant's motion to stay trial court proceedings pending appeal of the trial court's denial of the defendant's motion to compel arbitration. Specifically, the court found that the order denying arbitration was appealable, that the defendant had shown the possibility of reversal on appeal and hardship without a stay, and that the plaintiff would not be prejudiced by a delay in trial proceedings. However, the court noted that the defendant's notice to examine the plaintiff before trial could constitute waiver of the right to arbitration, and allowed the plaintiff to file motion papers on that issue to be addressed during the

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    19 views2 pages

    Norman C. Bernhardt v. Polygraphic Company of America, Inc., 235 F.2d 209, 2d Cir. (1956)

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    This document is a court opinion from the United States Court of Appeals for the Second Circuit regarding a dispute over an employment contract containing an arbitration clause. The court granted the defendant's motion to stay trial court proceedings pending appeal of the trial court's denial of the defendant's motion to compel arbitration. Specifically, the court found that the order denying arbitration was appealable, that the defendant had shown the possibility of reversal on appeal and hardship without a stay, and that the plaintiff would not be prejudiced by a delay in trial proceedings. However, the court noted that the defendant's notice to examine the plaintiff before trial could constitute waiver of the right to arbitration, and allowed the plaintiff to file motion papers on that issue to be addressed during the

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    of 2

    235 F.

    2d 209

    Norman C. BERNHARDT, Appellee,


    v.
    POLYGRAPHIC COMPANY OF AMERICA, Inc., Appellant.
    United States Court of Appeals Second Circuit.
    Motion Argued June 28, 1956.
    Decided July 24, 1956.

    McNamara & Larrow, and Guy M. Page, Jr., Burlington, Vt., for
    appellant-movant.
    Manfred W. Ehrich, Jr., New York City, and Eugene V. Clark,
    Bennington, Vt., for appellee-respondent.
    Before SWAN, FRANK and HINCKS, Circuit Judges.
    PER CURIAM.

    The action seeks damages for breach of an employment contract which


    contained a provision that any dispute should be submitted to arbitrators in
    accordance with the provisions of the arbitration statute of New York, where
    the contract was made. On appeal by defendant from denial of a motion to stay
    court proceedings pending arbitration, this court reversed the order, 218 F.2d
    948, and was in turn reversed by the Supreme Court. Bernhardt v. Polygraphic
    Company of America, Inc., 350 U.S. 198, 76 S.Ct. 273. After remand,
    defendant renewed its motion on two new points, namely: (1) that the contract
    involved interstate commerce which made applicable 3 of the Arbitration
    Act, 9 U.S.C.A. 3; and (2) that the Vermont rule respecting conflict of laws
    would give effect to the arbitration agreement made in New York. Judge
    Gibson decided both points adversely to defendant. From this order defendant
    has again appealed and has moved for a stay of proceedings in the trial court
    until this appeal shall be decided.

    The first question is as to the appealability of the order of May 17, 1956 which
    directed that the case "be placed on the docket for trial on the merits." Unless
    we have jurisdiction of the appeal we have no jurisdiction to grant the present
    motion. Although the order is plainly interlocutory, it is equivalent to refusal of

    an injunction, and is appealable under 28 U.S.C.A. 1292(1). Shanferoke Coal


    & Supply Corp. v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79
    L.Ed. 583; Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99
    L.Ed. 233; Wilko v. Swan, 2 Cir., 201 F.2d 439, 441.
    3

    Without expressing an opinion as to the merits of the appeal, we think the


    movant has shown enough to demonstrate the possibility of reversal and the
    certainty of hardship in that event unless the motion is granted. If it be denied
    and the order is later reversed, the time and effort expended in the trial will
    have been wasted. On the other hand, if the trial be stayed, plaintiff will not
    suffer from the delay since it was conceded upon the argument that he will be
    entitled to interest from the date of breach, if he ultimately obtains judgment.
    Consequently, in the exercise of discretion we think the stay should be granted.

    Subsequent to entry of the order on appeal, the defendant gave notice for an
    examination of plaintiff before trial. It has been contended that this constitutes
    waiver of the defendant's right to arbitration. Such a waiver, if effective, might
    well make the present appeal moot and require its dismissal. The facts
    respecting the alleged waiver will not appear in the record since they occurred
    subsequent to entry of the order on appeal. If plaintiff wishes to contend that
    the appeal has become moot he should file appropriate motion papers setting
    forth the facts, and give defendant an opportunity to reply thereto. If such a
    motion is filed, it will be heard when the appeal is argued.

    The motion for a stay is granted and the appeal is set down for argument in the
    United States Court House in Brattleboro, Vermont, on September 11, 1956.

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