(dissenting). Plaintiffs had made their election not to avail themselves of arbitration when they commenced their action against defendants. The choice to insist upon arbitration then rested with defendants. When defendants requested an extension of time to answer, they could have stipulated for a reservation of their right to arbitrate. They were aware of the existence of the right since the contract was included in an exhibit attached to the complaint. Their final opportunity to manifest the desire to arbitrate came when defendants served their answer under the stipulation of extension theretofore given. In serving an answer containing merely a general denial and omitting all reference to an arbitration, with full knowledge of the facts, defendants deliberately and intentionally waived and abandoned any claim to arbitrate. That right, once lost, may not be reclaimed by any later steps taken in the action. (Cf. Matter of Young v. Crescent Development Co., 240 N. Y. 244, 250, 251.) By their answer defendants “ might accept or decline the invitation tendered ” by plaintiffs. (Matter of Haupt v. Rose, 265 N. Y. 108, 111.) In Oklahoma Publishing Co. v. Parsons & Whittemore, Inc. (255 App. Div. 589) this court (at p. 592) stated the rule as follows: “ The defendant in this case, by its answer, accepted the invitation tendered by plaintiff to contest the claim at law. It had the right to demand arbitration before the service of an answer or in its answer, since the controversy with reference to the existence of a contract had been sharply defined. Its election to continue at law is binding upon the plaintiff which claimed to be the aggrieved party.”
In the circumstances of this case, the Special Term correctly held that defendants had unequivocally manifested an intention to acquiesce in plaintiffs’ choice of the forum and had waived their right to arbitrate. The order should accordingly be affirmed.
Order reversed, with twenty dollars costs and disbursements, and motion granted.