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Shribman v. Miller

Decided: February 26, 1960.

CHARLES SHRIBMAN, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF SIMON SHRIBMAN, PLAINTIFF,
v.
HELEN D. MILLER, AS EXECUTRIX OF THE ESTATE OF ALTON GLENN MILLER, DECEASED, DEFENDANT



Kilkenny, J.s.c.

Kilkenny

This court is called upon to determine in limine this question:

Must this court stay plaintiff's action pending submission of the matters in dispute between the parties to the International Executive Board of the American Federation of Musicians and the determination thereof by said board?

This court answers that question in the affirmative for the following factual and legal reasons.

In June 1959 plaintiff sued the widow and executrix of the estate of Alton Glenn Miller in this court for an accounting by her of moneys allegedly due plaintiff under a 1939 written contract between plaintiff and his brother Simon, now deceased, on the one hand, and the decedent Alton Glenn Miller, on the other. This 1939 contract was for a term of ten years. Plaintiff's brother Simon died after the making of the contract, and plaintiff succeeded to his rights thereunder. Miller, a popular orchestra leader, who performed professionally under the name of "Glenn Miller and his Orchestra," died in 1944.

Miller's will was probated before the Surrogate of Bergen County, in which county he was domiciled at his death. Miller's widow at the time of suit was and is now a resident of California. Jurisdiction by this court over Miller's estate and executrix was effected by service of a copy of the summons and complaint on the Bergen County Surrogate. The executrix answered the complaint and did not question this court's jurisdiction over her in her representative capacity. She did question jurisdiction over her individually by her answer and, subsequently, on her motion, this court ordered service upon her in her individual capacity set aside. No appeal was taken from that order. Hence, the suit remained only against Miller's estate.

Even though Miller has been dead about 16 years and the contract of 1939 would have expired under its ten-year term in 1949, if Miller had lived on, and even though neither Miller nor his estate paid any money to plaintiff or his brother Simon on account of this contract from 1943 to date,

plaintiff contends, nevertheless, in this suit that Miller's estate owes plaintiff an accounting of moneys received by Miller's estate after his death, but based on Miller's activities between 1939, when the contract was made, and 1944, when Miller died. Thus, for example, plaintiff alleges a right to an accounting of any moneys which may have been paid by third persons to Miller's estate on account of recordings made by Miller and his orchestra between 1939 and 1944, even though the recordings might have been dormant and not revived or processed for sale and distribution until long after Miller's death. Likewise, he seeks an accounting of any moneys which may have been realized by Miller's estate, as the result of the filming of the "Glenn Miller Story," a movie of Miller's life, made long after his death, but which in its scenes and music may have embraced in part, at least, Miller's orchestral activities between the 1939 contract date and the date of his death in 1944.

The defendant estate's answer admitted the 1939 contract, but denied any and all liability thereunder. It raised, additionally, as affirmative defenses that Miller was released and discharged from the 1939 contract by a later 1943 agreement between the parties; that nothing became due to plaintiff after and by reason of Miller's death in 1944; that plaintiff's claim was barred by the New York six-year statute of limitations, as well as by laches; and, more particularly for this decision, that the 1939 contract required the submission of any disputes or controversies thereunder to the International Executive Board of the American Federation of Musicians, by way of arbitration. Hence, defendant contended that plaintiff had no right to proceed with his litigation in this court until after submission to and determination by the Executive Board of the American Federation of Musicians of the matters in dispute.

The case was pretried and trial was set for January 27, 1960. Defendant's motion to stay this action pending submission to arbitration as aforesaid was denied by this court on December 5, 1959, because the limited affidavits and

written proofs then submitted to the court left doubt in the court's mind as to the applicability of the arbitration provision.

On the premise that "to doubt is to deny" injunctive relief, the stay of the action pending arbitration was then denied.

The 1939 contract did not contain an express provision for the arbitration of disputes, in so many words, but did provide, inter alia , as follows:

"5. The parties hereto will comply with and be bound by the laws, rules, regulations and orders of the American Federation of Musicians, and of any Local thereof having jurisdiction, anything herein contained to the contrary, notwithstanding, and said Miller and the members of his orchestra are at all times to be members in good standing in said Federation."

The by-laws, rules, regulations and orders of the American Federation of Musicians required persons licensed by the American Federation of Musicians to act "as agent, manager, or representative" for members of the Federation to sign a form of "License Agreement."

Plaintiff and his brother Simon were admittedly licensees of the American Federation of Musicians, and Miller was admittedly a member thereof in 1939, when they made their contract.

The license agreement form contained, inter alia , these pertinent provisions:

"14th: The provisions hereof shall be deemed included in, and part of, any and all agreements between the licensee and Federation members; and acceptance of this license shall constitute a modification of all existing agreements between the licensee and such members to accord with the terms hereof.

16th: Any default, dispute, controversy or difference arising between the licensee and the Federation, any local or any member or members of the Federation, shall be submitted to, and determined by the International Executive Board of the Federation, and the determination of said Board concerning the matters ...


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