39 N.Y.S. 1048 | N.Y. App. Div. | 1896
An agreement submitting a controversy involved in’an action, or in a special proceeding then pending, to arbitrators to hear and determine, pursuant to the rules of the common law, effects a discontinuance of the action or proceeding. (McNulty v. Solley, 95 N. Y. 242; Keep v. Keep, 17 Hun, 152; Jordan v. Hyatt, 3 Barb. 275; 2 Rumsey’s Pr. 159; 1 Am. & Eng. Ency. of Law, 661.)
The fact that a formal order was not entered discontinuing the proceeding did not deprive the defendant of the right to set up the agreement, as a defense to the motion. An agreement between parties settling an action pending is a perfect defense to it, though no order has been entered formally discontinuing it, and it has been held that a parol submission to arbitrators of a cause pending is a good defense to the action, notwithstanding the existence of a general rule of court that no agreement between litigants shall be binding unless in writing or evidenced by an order of the court. (Wells v. Lain, 15 Wend. 99; 1 Crary’s Spl. Proc. 30.)
The agreement provides that the sum awarded shall be binding and final on the parties, and both waived their right to appeal given by section 3375 of the Code of Civil Procedure, and the defendant waived the defenses to the proceeding set up in his answer, and the contract is wholly inconsistent with the theory advanced to sustain the order that the agreement amounted only to a selection of commissioners in the proceeding.
The plaintiff made a written offer to arbitrate and selected the arbitrators, which the defendant accepted, and within ten days after the execution of the agreement the plaintiff made this motion.' It is not asserted that the defendant had interfered, with the plaintiff’s possession or had refused to. go on under the agreement, and we find no justification in the record for the plaintiff’s attempt to. nullify the arbitration proposed by it and consented to by both parties under their hands and seals.
The order should be reversed, with costs.
All concurred, except Green, J., not sitting.
Order reversed, with costs.
