229 A.D. 258 | N.Y. App. Div. | 1930
On or about the 29th of November, 1928, the respondents and appellant made a written contract by which the respondents agreed to alter two buildings owned by the appellant' at 120 South Eighth street, Brooklyn. The contract price. was $11,500. It contained the following provisions for arbitration:
“ 29. All questions in dispute under this contract which may at any time arise shall be submitted to arbitration at the choice of either party to the dispute. * * * Either party hereto may give notice in writing to the other of a desire and request to so arbitrate. It is understood and agreed that if either party or if both of the parties hereto request an arbitration of any differences that may arise, such differences arising shall be arbitrated before three persons to be picked as follows: The contractors and the owner shall each designate a person to act as an arbitrator and the third person shall be picked from a list submitted by the American Arbitration Society in accordance with their rules and regulations.’’
The appellant’s claim on the first motion and on the former appeal to this court was that the filing of mechanics’ liens against the appellant’s premises by subcontractors had operated as a waiver of the respondents’ rights under the arbitration clause and as a release of the appellant’s obligation thereunder. This court affirmed the order denying the former motion on the ground that there was no proof that mechanics’ hens had been filed by the contractors. After the decision of the Special Term denying appellant’s motion, the respondents filed a notice of mechanic’s hen against the appellant’s premises, and the appellant, on his second motion, claimed, as he claimed before, that the filing of a mechanic’s hen by subcontractors and by the respondents acted as a waiver of their rights under the arbitration provisions of the contract.
Section 2 of the Arbitration Law (as amd. by Laws of 1921, chap. 14) provides: “A provision in a written contract to settle by arbitration a controversy * * * shah be valid, enforcible and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
The cases cited in the appellant’s brief in support of his claim hold, in substance and effect, that parties to a contract containing an arbitration clause may waive their rights thereunder and may resort to any other method of settlement, and that a party to such an agreement may waive and abandon his rights thereunder. (Matter of Zimmerman v. Cohen, 236 N. Y. 15; Matter of Young v. Crescent Development Co., 240 id. 244.)
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Lazansky, P. J., Hagarty, Carswell and Scudder, JJ., concur.
Order denying motion to vacate order directing arbitration affirmed, with ten dollars costs and disbursements.