[72 NJSuper Page 264] This matter is before the court on plaintiff's motion for partial summary judgment pursuant to R.R. 4:58-1 and 4:58-4.
The complaint alleges that on May 14, 1959 plaintiff entered into an employment and stock option contract with the defendant corporation, which contract provided for the arbitration of disputes between the parties. Thereafter a dispute arose and the issues were submitted to arbitration in the State of New York.
On June 1, 1961 the arbitrators made a unanimous award holding that the employment contract had been breached by the defendant without justifiable cause and that defendant should pay to plaintiff $27,964.29 as damages, and further that within 60 days defendant should sell and deliver to plaintiff 22,500 shares of common stock of the corporation for which plaintiff would pay $2,250, providing the plaintiff exercised his option to purchase the same within said period.
Thereafter plaintiff brought proceedings before the Supreme Court of the State of New York for an order confirming said award and defendant moved to vacate or modify it. On June 26, 1961 the Supreme Court of New York confirmed the award and on June 27, 1961 judgment thereon was entered in said court.
Plaintiff thereupon brought this proceeding in New Jersey wherein he sought judgment against the defendant in the sum of $27,964.29 together with interest thereon from June 1, 1961, and secondly sought a judgment for specific performance compelling the defendant to sell and deliver 22,500 shares of its common stock to plaintiff for the sum of $2,250.
The answer filed by defendant admitted the New York judgment but alleged that it was not conclusive for the reason that an appeal from said judgment had been taken to the Appellate Division of the Supreme Court of New York, which appeal was still pending. It further alleged that in accordance with the procedural requirements, defendant on July 28, 1961 had filed with the Clerk of the County of New York a bond wherein defendant and its surety undertook to pay the costs and damages in the event
that the judgment was affirmed or the appeal was dismissed. The answer alleged that as a result of the foregoing the judgment had been suspended by the appeal and that defendant would not be required to perform pursuant to its terms until the appeal was dismissed or the judgment was affirmed.
Plaintiff now moves for the entry of a partial summary judgment against the defendant in the sum of $27,964.29 together with interest thereon from June 1, 1961.
In support of said motion plaintiff has submitted an affidavit of its New York attorney, together with copies of the unanimous opinion rendered by the Appellate Division of the Supreme Court of New York, the order on appeal entered December 19, 1961, 15 A.D. 2 d 46, 222 N.Y.S. 2 d 7, and the final judgment on appeal, the latter having been entered on December 26, 1961. Said judgment provided that the prior judgment of the Supreme Court was modified to remand to the arbitrators for further consideration and disposition "Item 2 of the Award" which related to the finding that the defendant sell and deliver to plaintiff 22,500 shares of its stock at $2,250. "Item 1 of the Award," which provided that defendant pay to plaintiff $27,964.29, was affirmed.
The affidavit submitted by plaintiff alleges that the judgment is final as to the defendant and that therefore no appeal will lie.
The answering affidavit of defendant's New York attorney does not dispute liability on the part of the defendant to pay the sum of $27,964.29. It alleges that the form of judgment entered by the Appellate Division is in conflict with the opinion rendered in that it did not show that the award of $27,964.29 "embraced damages for all claims for wrongful discharge." It further alleges that under the rules and procedure of the New York courts where a judgment has been modified upon appeal to the ...