A party to an arbitration agreement may waive his rights thereunder. (Matter of Zimmerman v. Cohen, 236 N.Y. 15.) A refusal by him to arbitrate upon demand duly made by the other side constitutes such a waiver. So if sued, while the interposition by him of an answer claiming his right to arbitrate, even if he also pleads an independent counterclaim, is not in itself sufficient to justify a refusal of relief asked for under sections 3 and 5 of the Arbitration Law (Cons. Laws, ch. 72), yet unreasonable delay in making the proper application may justify a finding of waiver. While the agreement to arbitrate is not itself properly pleaded either as a defense or a counterclaim, when pleaded it is no less an assertion that the defendant does not intend to abandon his rights, and so rebuts any inference that would otherwise
be drawn from the mere service of the answer. (Matter of HosieryManufacturers Corp. v. Goldston, 238 N.Y. 22.) But the Arbitration Law contemplates prompt action and too long a delay in seeking appropriate relief may be easily construed as an indication that this claim is waived.
Upon the record before us the Appellate Division may have affirmed the order of the Special Term either because it found that the defendant had refused to arbitrate before the action was begun or else that because of the great delay on its part it intended to waive what would otherwise have been its right. In view of this possibility we may not interfere with the result reached by it.
The order appealed from should be affirmed, with costs.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; CARDOZO, J., absent.
Order affirmed.