An agreement of submission of matters in difference to arbitrators, followed by the arbitrators entering upon their duties—the arbitration being still pending and undetermined—constitutes no defense, or legal ob*267stacle, in abatement or in bar, to an action for the same matters, commenced after the making of the agreement. Such an agreement is a mere authority, revocable by either party, at any time before the case is finally submitted to the arbitrators for decision, subject only to liability for damages. It is not a bar to a subsequent action, because it does not determine the right of action before an award is made, and no sufficient reason is perceived why it should preclude an action by operating in abatement of it. A former action for the same cause is, in general, a ground of abatement. The reason given in Gould’s Pleading, (ch. 5, § 122, p. 283,) is, that “ the law, which abhors a multiplicity of suits, will not permit -a defendant to be harassed by two or more actions for the same thing, where a complete remedy might be obtained by one of them. The object of the rule is to prevent vexation.” This reason has but little if any force, in reference to a pending submission to arbitration. The agreement of submission, as has already been observed, is a mere revocable authority; the plaintiff in the action can have no security that his adversary will not revoke it; and if the arbitration should proceed to an award, there is no mode, in the case of a common law arbitration, of enforcing the award but by action, when for the payment of money. This is very far short of the complete remedy obtainable by an action founded upon the original cause of action. Besides, very little vexation comparatively, can be accomplished by the submission; not sufficient to require that protection should be afforded by making it pleadable in abatement. But there is another reason why a submission to arbitration is not available in bar or abatement of a subsequent action for the same cause embraced in the submission. The principle is well settled, that a specific performance of an agreement to refer a subject of controversy, will not be enforced by the courts, on the ground that it is against public policy thereby to exclude parties from, a resort to the proper judicial tribunals. (Story’s Eq. Juris. § 1457, and cases there cited. Haggart v. Morgan, 1 Selden, 422.) Upon the same principle, when an arbitration has been entered into which is still pending—the case not having been submitted for final de*268cision—it will not be allowed to affect the right of either party to seek and pursue a remedy for the same matter in a court of justice.
[Cayuga General Term, June 4, 1855.The doctrine that the submission of a pending action operates as a discontinuance, has nothing to do with the question considered. The ground of discontinuance in such a case is, that by the submission the parties voluntarily provide another mode for the trial than that prescribed by law in the action, and thereby substantially agree to, and do, withdraw the cause from the court; to which agreement there can be no valid legal objection.
The decision, excluding parol proof by the justice of what took place before him, if erroneous, did no harm, as his docket was immediately given in evidence; but I am inclined to think it was correct. (Boomer v. Laine, 10 Wend. 525. Brotherton v. Wright, 15 id. 237. Heermans v. Williams, 11 id. 636.)
) The evidence offered, in contradiction of the docket of the justice, was, I think, properly rejected. The substance of the entry in relation to the stipulation was,, that by consent of the parties the cause was submitted conditionally, with a reservation to the plaintiff of liberty to withdraw the suit, which consent was, in my opinion, binding on the parties, and properly formed a part of the docket, (2 R. S. 269, § 244.) It was no more subject to be contradicted than any other part of the docket. (Hard v. Shipman, 6 Barb. 621. Brintnall v. Foster, 7 Wend. 103. McLean v. Hugarin, 13 John. 184.)
Proof of an award was not admissible under the pleadings. It is not alleged in the answer that an award had been made; on the contrary it is averred that the submission is pending and undetermined.
This disposes of all the points made on the argument before us, and the judgment on the report of the referee must be affirmed.
Selden, Johnson and T. R. Strong, Justices.]