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Chimes v. Oritani Motor Hotel Inc.

Decided: August 14, 1984.

GIL CHIMES, MICHAEL CHIMES, SR., MICHAEL CHIMES, JR. AND CRAIG CHIMES, PLAINTIFFS-APPELLANTS,
v.
ORITANI MOTOR HOTEL, INC. D/B/A NEW EARTH RESTAURANT, DEFENDANT-RESPONDENT



On appeal from Bergan County District Court.

Botter and Pressler. The opinion of the court was delivered by Botter, P.J.A.D.

Botter

[195 NJSuper Page 438] In this action plaintiffs sought to enforce a judgment against defendant in the amount of $4,089.16 which they had recovered against defendant in the Supreme Court of the State of New York. Defending against the claim, defendant asserted that the New York judgment was void and unenforceable because the New York court never acquired jurisdiction over the controversy or the defendant, that defendant was never validly served with process in the State of New York, and that the provisions in the contract between the parties designating plaintiffs' union as the arbitrator were not voluntarily agreed upon and were void and unenforceable as against public policy. This last defense was asserted as a separate defense in defendant's answer. The trial judge refused to enforce the New York

judgment against defendant because defendant "never consented to jurisdiction in New York. . . ." The trial judge ruled that, to be effective, consent to be sued in another state "that has no jurisdiction over a matter has to be clear and concise and not something hidden in a regulation that you don't get until after a claim is made." We affirm, but on different grounds.

Plaintiffs are musicians known as the Gil Chimes Quartet. According to appellants' brief, they are members of the American Federation of Musicians of the United States and Canada (AFM), "which is a labor organization that represents professional musicians like the plaintiffs." On November 12, 1979, Gil Chimes and defendant (Oritani) entered into a contract for the Quartet to perform at Oritani's New Earth Restaurant in Hackensack. The contract provided that the group would work at the New Earth Restaurant four nights a week between November 28, 1979 and March 1, 1980 and were to be paid $700 per week at the completion of work on Saturday night. Defendant contends that the parties thereafter modified the agreement in writing signed by Gil Chimes and defendant by which the parties agreed to terminate the engagement on January 26, 1980 with the understanding that a different five week engagement would be offered to plaintiffs at a later date in 1980. Notwithstanding this agreement, Gil Chimes filed a claim on February 22, 1980 with the AFM seeking $3,500 from defendant on the ground that defendant breached the contract by terminating it five weeks early. That claim made no mention of the modifying agreement which defendant contends was executed in January 1980.

The contract signed by the parties was prepared on a standard "contract blank" prepared by the AFM. It contained a provision for binding determination of all disputes relating to the contract by the International Executive Board of the AFM (the Board) or of a similar board of an "appropriate local." Pertinent provisions of the contract are:

8. In accordance with the Constitution, By-laws, Rules and Regulations of the Federation, the parties will submit every claim, dispute, controversy or

difference involving the musical services arising out or connected with this contract and the engagement covered thereby for determination by the International Executive Board of the Federation or a similar board of an appropriate local thereof and such determination shall be conclusive, final and binding upon the parties.

ADDITIONAL TERMS AND CONDITIONS

All employees covered by this agreement must be members in good standing of the Federation. * * *

To the extent permitted by applicable law, all of the Constitution, By-laws, Rules and Regulations of the Federation and of any local thereof applicable to this engagement (not in conflict with those of the Federation) will be adhered to and the parties acknowledge that they are and each has the obligation to be, fully acquainted therewith.

Defendant's attorney responded by letter to the notice of the claim which he received from the AFM. He denied any obligation and enclosed a copy of the superseding agreement. However, because a sworn affidavit was not submitted in compliance with AFM's rules of practice and procedure, the letter was returned to him, and he did not participate in the proceeding. The claim was later considered without an answer, and plaintiffs were given an award of $3,500. In 1981 plaintiffs started an action in the Supreme Court of New York to confirm the award. Notice of the proceedings was delivered to Oritani in New Jersey, but defendant did not appear in the New York action. A judgment was ...


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