On appeal from the Appellate Division of the Superior Court.
For dismissal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Vanderbilt, C.J.
This is an appeal from a judgment of the Appellate Division of the Superior Court refusing the defendant leave to appeal from an order of the Law Division of the Superior Court denying the defendant's motion for summary judgment.
The defendant owns and operates a dairy in Allenhurst with 31 employees. The plaintiff is a union purporting to represent the defendant's employees. On Sunday, July 9, 1950, the president of the defendant corporation signed a labor contract with the plaintiff union, the contract containing
an arbitration clause providing for the submission to arbitration of any disputes arising out of the agreement and running until October 24, 1951.
Subsequently the defendant repudiated the agreement and the plaintiff instituted this action in the Law Division of the Superior Court pursuant to the provisions of R.S. 2:40-10 et seq. to obtain a judgment that the alleged contract remained in full force and effect and to compel the parties to the contract to arbitrate the disputes that had arisen between them. R.S. 2:40-13 provides that:
"The justice or judge shall hear the parties and if satisfied that the making of the agreement or a failure to comply therewith is not in issue, shall make an order directing the parties to proceed to the arbitration in accordance with the terms of the agreement, but if found to be in issue, an order shall be made directing a summary trial thereof. Where such an issue is raised the party alleged to be in default may * * * demand a jury trial of the issue."
In its answer the defendant demanded a jury trial and pleaded that the alleged contract was void because it was executed on Sunday, that the president of the defendant was not authorized to make the contract, that the board of directors of the defendant had disaffirmed the contract, that the contract was signed under duress and as a result of false representations, that the contract was signed without an understanding of its terms and without intent to bind the defendant, that the plaintiff was not authorized by the employees of the defendant to bring this suit and that if such authority had been given it has been repudiated by the employees, and that there is no arbitrable question presented under the terms of the contract. Thereafter the defendant moved for summary judgment on several grounds: (1) that the plaintiff was not authorized by the employees of the defendant to bring this suit and had no interest in the subject matter, (2) that there was no dispute arising under the contract, and particularly no dispute that was embraced within the arbitration clause, (3) that the contract was void because it was signed on a Sunday, and (4) that it was never ratified nor was any new promise made.
The trial judge held that under the affidavits submitted in the case it was clear that there was a dispute as to whether or not there was a ratification by the defendant which would remove the agreement from the ban of R.S. 2:207-1 relating to the transaction of business on Sunday. He held further that until that issue was determined the court had no jurisdiction to determine whether or not there was an arbitrable issue and whether or not the union had authority to bring the suit to compel arbitration. Accordingly he denied the defendant's motion for summary judgment but without prejudice to a renewal thereof following the disposition of the summary hearing required by the statute as to whether or not there was a contract between the parties. The defendant then moved for a reargument of the motion for summary judgment and this application was also denied. Thereupon the defendant applied to the Appellate Division of the Superior Court for leave to appeal from the order denying the motion for summary judgment, pursuant to Rule 4:2-2 (b), which provides in part as follows:
"This court [Appellate Division], in addition to the power conferred by paragraph (a) hereof, may in its discretion permit appeal to be taken from an interlocutory order or judgment when, in the opinion of the court, the grounds of appeal are substantial and the appeal, if sustained, will terminate the litigation."
After argument before the Appellate Division the application for leave to appeal was denied, one judge dissenting. From this denial by the Appellate Division the defendant has now taken this appeal to this court on a claim of right under the provisions of Rule 1:2-1 (b) providing for appeals from ...