Opinion
June 9, 1952.
Appeal by defendants, sureties on a payment bond, from an order which denied their motion to stay proceedings in the action until arbitration shall have been had between plaintiff and their principals on the bond. Order reversed on the law and the facts, with $10 costs and disbursements, and motion granted, with $10 costs. Respondent has been directed to proceed to arbitration of a dispute with appellants' principals which presumably involves the same issues as those presented in the instant action. (See Matter of Carlin Constr. Co. [ Bartley Bros. Constr. Corp.], 280 App. Div. 801, decided herewith.) While appellants are not parties to the agreement which contains the provision for arbitration and consequently are not entitled to a stay as a matter of right (cf. Civ. Prac. Act, § 1451), the stay should be granted to avoid the simultaneous prosecution of the action and the arbitration proceeding. (Cf. Flash v. Goldman, 278 App. Div. 829.) Nolan, P.J., Carswell, Johnston, Adel and Schmidt, JJ., concur.