Clyde Renco Milling Company, Inc., Respondent, v. Globe Elevator Company, Appellant

Fourth Department, March, 1926. Clyde Renco Milling Company, Inc., Respondent, v. Globe Elevator Company, Appellant. Trial — plaintiff waived defendant’s default in service of answer upon condition that defendant would try case at next term — motion by defendant to dismiss complaint and stay action on ground that it should be arbitrated under contract properly denied. Appeal from an order of the Supreme Court,«made at the Wayne Special Term and entered in the Wayne county clerk’s office on February 11, 1926, denying a motion to dismiss the complaint or to stay plaintiff’s action. [MAJORITY — Per Curiam:] Per Curiam: The defendant’s attorneys obtained from the plaintiff’s attorney a waiver of defendant’s default and the right to answer upon the assertion that the answer would be filed within three or four days and that the defendant would be ready to try the case during the following term. It was thus implied that no step would be taken by the defendant to delay the trial and the right to move for a stay previous to the trial was consequently waived. The defendant has set up in its answer facts which it claims render the Arbitration Law a bar to the plaintiff obtaining judgment on his demand without first resorting to arbitration. The effect of such allegations in the answer must be left for determination upon the trial. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. All concur. Order affirmed, with ten dollars costs and disbursements.