Opinion
May 10, 1965
In an action for specific performance of a contract for the sale of certain real property or for damages because of the breach of the contract, defendants appeal from an order of the Supreme Court, Westchester County, entered January 6, 1965, which inter alia denied their motion for a stay of arbitration pending the hearing and determination of the issues raised by the complaint in the action. Order affirmed, with $10 costs and disbursements. After initiation of arbitration proceedings in accordance with the contract, the plaintiff commenced this action solely to prevent transfer of title to the real property pending the final determination on the merits by arbitration. There was no intention on the part of the plaintiff, however, to pursue the litigation, or to abandon his right to arbitrate the dispute. He has committed himself to discontinuance of the action and has not prosecuted it (cf. Newburger v. Lubell, 257 N.Y. 383; Matter of Askovitz, 229 App. Div. 258; Matter of United Paper Mach. Corp. [ Di Carlo], 19 A.D.2d 143, affd. 14 N.Y.2d 814). Beldock, P.J., Ughetta, Christ, Brennan and Hill, JJ., concur.