The opinion of the court was delivered by: DIMOCK
Petitioner, Treasurer of Joint Board of Dress and Waistmakers' Union of Greater New York, hereinafter the Union, moves to remand to the Supreme Court of the State of New York an application made in that court by petitioner to confirm arbitration awards. The application was removed to this court by respondent Budget Dress Corporation, hereinafter Budget Dress.
In September, 1958, the Union filed with an 'Impartial Chairman' of the popular priced dress industry as arbitrator a complaint against Budget Dress.
In November 1958, Budget Dress instituted proceedings in the New York Supreme Court to stay arbitration of this complaint. The state court denied the motion for a stay and the subsequent arbitration resulted in awards to the Union. Upon petitioner's motion to confirm the awards in August 1959, Budget Dress removed the application to this court on the ground that the matter in dispute was one over which the United States District Court had original jurisdiction under the Taft-Hartley Act, 29 U.S.C. § 185(a), (c) and 186, 61 Stat. 156, and the Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2, 26 Stat. 209.
The Union says that the arbitration proceeding was not within the removable class of cases and that in any event the petition for removal by Budget Dress was too late because, under section 1446(b) of title 28 of the U.S.C., such a petition must be filed within twenty days after the receipt of a copy of the first pleading stating a removable claim. The Union's contention as to timeliness is that the arbitration proceeding was brought when Budget Dress instituted its motion to stay arbitration in the New York Supreme Court in November, 1958, and that the time for removal expired at the end of twenty days thereafter. The petition for removal was not filed until August 7, 1959.
Budget Dress says that the arbitration proceeding was removable and that the petition for removal was timely because the proceeding removed was not the arbitration proceeding but a separate application for confirmation of the arbitration award which was not brought until August 4, 1959.
On this question of timeliness there are three possibilities: (1) that the first pleading stating a removable claim was received at the time the arbitration proceeding was brought, (2) that it was received when the stay motion was made, or (3) that it was received when the confirmation motion was made.
To determine the relative merits of the opposing arguments, I must first determine the nature of the state court proceeding.
The application for confirmation of the award was but a step in the arbitration proceeding which was a 'special proceeding'. Section 1459 of the New York Civil Practice Act reads as follows:
' § 1459. Arbitration a special proceeding.
'Arbitration of a controversy under a contract or submission described in section fourteen hundred forty-eight shall be deemed a special proceeding, of which the court specified in the contract or submission, or if none be specified, the supreme court for the county in which one of the parties resides or is doing business, or in which the arbitration was held, shall have jurisdiction.
'Any application to the court, or a judge thereof, hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.'
Section 1448 therein referred to provides that two or more persons may contract to settle by arbitration a controversy thereafter arising between them.
A contract between the Union the The Popular Priced Dress Manufacturers' Group, Inc., under which Budget Dress as a member of said Group was personally liable, provided for reference of disputes to the 'Impartial Chairman' in the industry. It continued: 'The decision reached * * * by the Impartial Chairman, shall have the effect of a judgment entered upon an award made, as provided by the Arbitration Laws of the State of New York, entitling the entry of judgment in a court of competent jurisdiction against the defaulting party who fails to carry out or abide by the decisions. It is hereby expressly agreed between the parties hereto that the oath of arbitrator required by Section 1455 of the Civil Practice Act and the Arbitration Laws of the State of New York, is hereby expressly waived.'
I hold that this contract permitted only such arbitration as is established by the New York Civil Practice Act and that therefore the proceeding for arbitration instituted by the Union was, under the New York law, a special proceeding in the New York Supreme Court. In passing upon removal questions, however, the federal courts decide for themselves the nature of state proceedings. Mason City & Ft. D.R. Co. v. Boynton, 204 U.S. 570, 27 S. Ct. 321, 51 L. Ed. 629. I must therefore attempt to ascertain the nature of arbitration proceedings conducted ...