Opinion
November 1, 1943.
Appeal from order granting defendant's motion to dismiss the complaint and vacate a warrant of attachment heretofore granted, on the theory that all disputes between the parties have been determined in a separate arbitration proceeding. Order reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs; and an order is directed to be entered consolidating the arbitration proceeding with this action and directing the entry of a judgment in favor of the plaintiff in conformity with the award in the arbitration proceeding, with costs to the plaintiff. Proper procedure required that the defendant have recourse to the practice prescribed by section 1451 of the Civil Practice Act. The consolidation directed will effect the same result, in substance. Plaintiff eventually prevailed and is entitled to the benefit thereof, including the attachment had therein, in the action she instituted. When the attachment was originally attacked it was not challenged on any ground that had relation to arbitration. Its validity was sustained. ( Silberfeld v. Plessner, 265 App. Div. 834.) Recourse to arbitration did not terminate this action or give rise to a right to a discontinuance thereof. The cases invoked which relate to an agreement to arbitrate made and entered upon after the institution of an action have no application to an action begun on contracts containing a prior agreement to arbitrate which either or both parties were free to waive or abandon. If, as here, the adverse party does not wish to waive such provisions, his remedy is to proceed in conformity with section 1451 of the Civil Practice Act, which procedure will preserve all his rights and at the same time preserve all rights which may inure to the other party in the event such other party eventually prevails, as in the case at bar. Settle order on notice within ten days from the date of this decision. Hagarty, Carswell, Johnston, Taylor and Lewis, JJ., concur.