Durst v. Abrash

Breitel, J. P. In an action for a declaratory judgment to determine that a certain purported stock sale transaction was in fact a disguise for a usurious loan agreement defendant appeals from an order denying her motion to compel arbitration (CPLB 7503, subd. [a]). Special Term denied the motion but directed a preliminary trial of the issues upon which arbitrability depends. The issue is whether the agreement to arbitrate has independent viability apart from the alleged usurious transactions so that all the issues, including the claim of usury, are for the arbitrators to determine rather than the court. The order should be affirmed. The subsidiary agreement to arbitrate is subject to the alleged illegality of the principal agreement. The transaction, as described by plaintiff, was a loan to plaintiff of $30,000> disguised in the form of a sale by him to defendant of TO,000 shares of Class A common stock in a close corporation. Plaintiff was required to repurchase the stock some 15 months later at a price of $5.40 per share. In addition, defendant was to receive the dividends payable on the stock, amounting to 60 cents per share, or a total of $6,000 in dividends. Consequently, under the transaction, if it was what plaintiff alleges it to be, defendant would receive interest at the rate of 80% per annum. Simultaneously with the execution of the principal agreement in suit the parties also executed, under the same date, a paper which read as follows: “ It is hereby agreed among the undersigned that any dispute, claim, or controversy arising under or pursuant to letter agreements between them dated this day, shall be settled by arbitration in New York City pursuant to the rules of the American Arbitration Association then obtaining.” The statute provides that “ [w]here there is no substantial question whether a valid agreement was made or complied with * * * the court shall direct the parties to arbitrate ” (CPLB 7503, subd. [a]). Whether the statute, which was adopted in its present form in 1962 and became effective September 1, 1963 (CPLB 10005), changed the law as it existed under the Civil Practice Act (§ 1450) need not be dispositive of the issue in this case. The law under the Civil Practice Act had been that a contract for the doing of an act the performance of which was prohibited by statute or was otherwise ‘ ‘ void and unenforceable ” was not enforceable in arbitration (Matter of Exercycle Corp. [Maratta], 9 N Y 2d 329, 334-335; Matter of Kramer & Uchitelle [Eddington Fabrics Corp.], 288 N. Y. 467, 471). In this case, concededly, there are various statutes affecting the legality or validity of usurious transactions. [41] If, on the other hand, CPLR changed the law then defendant’s situation is the worse. The Civil Practice Act provided for the preliminary determination of a “ substantial issue as to the making of the contract or submission or the failure to comply therewith” (§ 1450). The language was always troublesome and there was decisional law that the court was to decide as a preliminary matter not merely the fact of making an agreement but also whether the parties had succeeded in effecting an enforcible contract to arbitrate (see concurring and dissenting opinions in Matter of Exercycle Corp., supra, and the cases cited). The language in CPLR, on the other hand, makes explicit that the preliminary question for the court is whether there is a substantial question of the existence of a “ valid agreement ” to arbitrate. If the statute intended the meaning normally attributed to those words there is no question that a preliminary question for the court to determine is whether or not there is a valid arbitration agreement in the first instance. Certainly, if the new statute was intended to change the law, that is the only direction in which the change points. In that case, a fortiori, an agreement to arbitrate subject to a claim of infirmity for illegality in the principal agreement involves a preliminary question to be determined by the court and not by the arbitrators. There is some authority that the new statute, which was enacted after the Exercycle case, was not intended to change the pre-existing law (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7503.02). The commentators, in supporting that view, however, cite the Second Advisory Committee Report (2d Preliminary Rep. of Advisory Comm, on Practice and Procedure, p. 135,1958 Report of Temporary Comm, on Courts, N". Y. Legis. Doc., 1958, No. 13, p. 135). In fact, the Second Report draft of the statute did not expressly refer to the “ validity ” of the agreement but only to “ the existence of the agreement ”. This language continued unchanged through the 1962 drafts even after the section had received its present designation “ § 7503 ” (6th Report Sen. Finance Comm., N. Y. Legis. Doc., 1962, No. 8, p. 648). It was much later in the 1962 legislative session that the language was changed to its present form referring to validity of the agreement. This, therefore, may suggest an argument that the new statute was intended to change the law, or, at least, restate the rule as generalized in the Kramer case {supra). The rule in the Kramer case (referring generally to the necessity of there being a valid and enforcible contract before there [42] can be arbitration under a subsidiary clause) was cast in some doubt by the opinion in the Exercycle case (supra). The holding in the Exercycle case certainly was that common-law contract invalidity, as distinguished from public policy illegality, of a principal agreement containing an otherwise viable arbitration clause was not a preliminary matter to be determined by the court. "Whether the language in CPLR was intended to overrule the holding in the Exercycle case, a matter which is not relevant to the issues in this case, is quite another question. It is this last question with which the commentators were primarily concerned, namely, whether technical common law contract rules (e.g., mutuality, consideration, and the like) which might leave a substantive agreement unenforeible at law did not also render a subsidiary agreement to arbitrate unenforeible. As for the form of the agreement, it is undisputed law that a usurious agreement is invalid regardless of the form it takes and regardless of the rules governing integrated agreements. It is always possible to show that any transaction and the documents which are a part of it are illegal and unenforeible as a usurious transaction. (Restatement, Contracts, § 229, Comment b; § 529; cf. Hartley v. Eagle Ins. Co., 222 N. Y. 178, 184-185; Thurston v. Cornell, 38 N. Y. 281, 285.) In such an inquiry the issue is not the interpretation of the language used but what are the facts behind the facade of language. There is no need to consider the subtleties in the line of cases discussing whether a usurious agreement is void or voidable. That question may be important when the interest of a third party is involved. Indeed, the distinction is not important when duress or fraud is involved, although these result only in voidable agreements; the preliminary issue is still for the court (Matter of Exercycle Corp., supra). Nor does any sound distinction rest on the obvious fact that different kinds of illegality may involve a lesser or greater degree of public harm. The fact is that there are many kinds of public policy illegality, other than usury, which require- a positive election or an affirmative defense to render agreements subject to the infirmity unenforeible (17A C. J. S., Contracts, § 559). In this case no third party is involved and a party to the alleged usury is asserting the illegality and unenforcibility of the agreements, both as to the principal agreement and the subsidiary agreement to arbitrate. No precedent suggests that illegality may be waived in advance. If so, such waiver would be accomplished indirectly by inserting an arbitration clause [43] in the otherwise illegal agreement, thus precluding court control of the public policy issue. The separate execution of the one-sentence agreement to arbitrate any disputes which might arise under the principal agreements does not, of course, present a separable question. The papers being executed simultaneously and as part of the same transaction are to be construed together (Nau v. Vulcan Rail & Constr. Co., 286 N. Y. 188, 197; 10 N. Y. Jur., Contracts, § 213; Restatement, Contracts, § 235, subd. [c]). If the main purpose of the transaction was illegal then the subsidiary agreements, if they are truly subsidiary, are rendered invalid by the invalidity of the principal agreement (Manson v. Curtis, 223 N. Y. 313, 324). What the situation would be with respect to a prior general agreement between parties to arbitrate all disputes which might arise between them in a variety of transactions need not now be decided. In Matter of Metro Plan v. Miscione (257 App. Div. 652) the precise question involved in this case was decided as an alternative holding. It was held that a principal agreement, if usurious, would render unenforcible stipulations for arbitration contained within it. It was said flatly that such a question was for the court to decide and not the arbitrators. The most significant aspect of the matter, however, is that in Matter of Exercycle (supra), the court referred to the Metro Plan case. It was cited under the first category of cases described by the court as one in which arbitration would be preliminarily enjoined with respect to certain allegedly voidable agreements. While the category was denominated as involving fraud or duress, the Metro Plan case was included with a comparative reference, p. 334. Consequently, not only is the Metro Plan case a binding precedent upon this court but its rule is one which appears to have been expressly excepted from the principle laid down in the Exercycle case. Matter of Gale (Hilts) (262 App. Div. 834) did not hold contrary to the Metro Plan case, and therefore does not impair the precedental standing of the Metro Plan case. There the question of illegality was raised only after award by the arbitrators. This is quite a different matter; the grounds for vacatur of an award are not identical with those which will warrant a stay of arbitration (Civ. Prac. Act, § 1462; cf. CPLR 7503, subd. [b]; 7510, 7511, subd. [b]). The award, on the facts in that case, was then supportable on the ground that the arbitrators could have found on the facts that there was no usurious transaction. [44] There is nothing in the decisional law or in the usury statutes which blanket the Anglo-American jurisdictions which suggests that usury involves an illegality of a lesser degree than others for the purpose of determining the enforcibility of agreements. But even this should not be critical to the determination of this case. If usurious agreements could be made enforcible by the simple device of employing arbitration clauses the courts would be surrendering their control over public policy in a way in which the Court of Appeals in the Exercycle case made very clear could not happen. Moreover, any one desiring to make a usurious agreement impenetrable need only require the necessitous borrower to consent to arbitration and also to arbitrators by name or occupation associated with the lending industry (cf. Matter of Astoria Med. Group [Health Ins. Plan], 11 N Y 2d 128). In this way the statutes and, where they exist, licensing agencies, would all be facilely by-passed. The problems of usury extend well beyond larger commercial transactions to small business situations and to personal loans for those without capital. If the arbitration clause device could be thus used, all the complicated legislative distinctions in the statutes, civil and criminal,* as well as the authority of the administrative regulating agencies, would be avoided by the simplest draftsmanship. The welter of legislation in this area makes clear that the concern is one of grave public interest and not merely a regulation with respect to which the immediate parties may contract freely. Accordingly, the order denying defendant’s motion to compel arbitration pending a trial of the issues of whether the written agreements are usurious and invalid should be affirmed, with costs to plaintiff-respondent. Footnotes [*] (See, e.g., General Business Law, § 370 et seq.; Banking Law, §§ 108, 173, 235-b, 293-a, 352, 510-a; Penal Law, § 2400; Personal Property Law, § 46-f.)