In re the Arbitration between Ladin & D. & C. Textile Corp.

Breitel, J. (dissenting).

Respondent-respondent Textile Corporation, claiming breaches under and a violation of a five-year requirements contract, seeks damages both in an arbitration proceeding under the contract and in an action purportedly framed in tort. The breach of the contract and the basis for the tort involve the same events, the same wrong, and the same damages. Textile seeks to justify this multiple approach on the ground that the arbitration is against parties with whom it contracted, while the action is only against persons with whom it did not contract. It avoids an identity of parties, it argues, by its averment that the parties respondent in the arbitration, who are also named not merely as co-conspirators but as defendants in the action, have not been served and will not be served in the action. When these named but unserved defendants, whom Textile says are not parties, served a notice of appearance, the notice was rejected and returned.

As a consequence there are two questions. The first is whether the right to arbitrate was waived by the bringing of the action and the second is whether the parties in the arbitration are also parties in the action.

The parties to a contract providing for arbitration agree to settle disputes solely through arbitration and do not consent to be burdened by two contemporaneous proceedings. The double burden and the likelihood of conflicting determinations are apparent. Hence, a contemporaneous action may be dismissed or stayed (see CPLR 3211, subd. [a], par. 5, 7503, subd. [a]). For parallel reasons, the parties may abandon their arbitration rights under the contract and pursue their remedies in the courts. That occurs when one party commences an action and the other asserts waiver of the right to arbitrate.

Since Matter of Zimmerman v. Cohen (236 N. Y. 15) it has never been effectively disputed that a party entitled to demand arbitration waives that right by bringing an action involving the same claim.1 Indeed, such waiver has been held to occur even where the person seeking arbitration had merely sought *14to protect his interest by filing a mechanic’s lien (Matter of Young v. Crescent Development Co., 240 N". Y. 244; now changed by statute, Lien Law, § 35). The same waiver was held to have occurred when stockholders sought arbitration after having first resorted to a proceeding under section 25 of the General Corporation Law, now section 619 of the Business Corporation Law (Matter of Gerakares v. Camarinos, 2 A D 2d 850, mot. for Iv. to app. den, 2 A D 2d 894). The waiver rule, of course, has been followed in this Department (e.g., Matter of Cooper Hats [Kadis], 285 App. Div. 937, affd. 309 N. Y. 705).

More recently the waiver rule was applied in a case remarkably like that here, and which had not yet been decided when Special Term denied the motion to stay arbitration (Matter of United Paper Mach. Corp. [Di Carlo], 19 A D 2d 143). There, as here, the action involved parties additional to those who were respondents in the attempted arbitration proceeding. It was held that the right to arbitrate had been effectively waived. (Cf. Leesona Corp. v. Cotwool Mfg. Corp., 315 F. 2d 538 [4th Cir., 1963], in which there were entirely different parties involved in the arbitration and the action. The arbitration was stayed pending determination of the action.) Hardly necessary to add, in all of these cases the party who “ waived ” the right to arbitrate, did not wish to forego arbitration but sought to arbitrate and sue at the same time. This is waiver.

When a waiver allegedly occurs the adversary who wishes to rely on the waiver may proceed under subdivision (b) of section 7503 of the Civil Practice Law and Rules (formerly Civ. Prac. Act, § 1458, subd. 2). The statute provides for application to stay arbitration where no valid agreement to arbitrate was made or complied with. It is a procedure corollary to that provided for compelling arbitration under subdivision (a) of the statute which also refers in indentical language to whether a valid agreement for arbitration was made or complied with. The bulk of the cases, of which the Zimmerman case (supra) is the leading, involved motions to compel arbitration. In those cases it was determined that by bringing the action there had been abandonment or waiver of the arbitration provision of the contract. Matter of United Paper Mach. Corp. (Di Carlo) (supra) on the other hand, involved, as here, a motion to stay the arbitration. A similar remedy was sought and applied in like circumstances in Sussman v. Goldberg (28 Misc 2d 1070).

The legislative history makes it clear that the shifting language from the old statute to the new through intermediate drafts was not intended to remove from the courts the responsibility of determining whether a valid and binding agreement *15to arbitrate subsisted, as contrasted with one never validly made (e.g., 6th Report, N. Y. Legis. Doc., 1962, No. 8, p. 649; McKinney’s Cons. Laws of N. Y., Book 7B, CPLR, § 7503, comment at pp. 488 and 490).

The concurring opinion by Mr. Justice Eager raises interesting points not made by the parties. Its primary point depends upon the construction of the word “ participated ” in the statute (CPLR 7503, subd. [b], formerly Civ. Prac. Act, § 1458, subd. 2). As the concurrence would take it, the statute provides a word trap which can be sprung on the unwary, namely, by the designing litigant not bringing the procedurally contradictory action at law until after the adversary has “ participated ” in the arbitration.

Neither the old statute (Civ. Prac. Act, § 1458, subd. 2) * pretended with but one exception, nor does the new pretend, to particularize, what constitutes participation ”, and for good reason. The disqualifying participation must be of the nature of conscious waiver. An answer served with knowledge of the pendency of the contradictory action is one thing; service of the answer before the pendency of the action is quite another. Here, when petitioners served their answer in the arbitration, there was no option to waive or object, and that sequence of events was undoubtedly the design of respondent.

The concurrence would reward that design of respondent by a strained interpretation of the statute. Of the three cases upon which it relies, two involved attempts to stay arbitration after the selection of arbitrators (Matter of McGovern [Janel's Music Corp.], 18 A D 2d 897; Matter of Leonard [Heinemann], 35 Misc 2d 421). The third case involved contest on the merits by the objecting party before the arbitrators and in appeal ” under the arbitration procedure (Matter of Harris [East India Trad. Co.], 16 Misc 2d 87).

The Court of Appeals in determining, under the old statute, what constitutes participation in an arbitration proceeding has been quite restrictive. Thus, in Matter of De Laurentiis (Cinematografica), 9 N Y 2d 503, 509, it overruled the holding of this court that, before the selection of arbitrators, successive requests for extensions of time constituted participation. In Matter of National Cash Register Co. (Wilson) (8 N Y 2d 377, 383) the emphasis was placed upon the selection of arbitrators and in the proceedings before them as the operative fact for establishing a waiver to object to the arbitration. As already observed, the cases upon which the concurrence relies, also under *16the old statute, satisfy this test, but the instant case does not. Notably, in this ease the parties have not yet selected the arbitrators.

Subdivision 2 of section 1458 of the Civil Practice Act in providing for stay of an arbitration required that the applicant “ [not have] participated in the selection of the arbitrators or in any of the proceedings had before them”. Subdivision (b) of section 7503 of the Civil Practice Law and Rules is the successor provision. It refers simply to a ‘' party who has not participated in the arbitration ”. This change in language was not intended to effect any substantial change in meaning (see 1958 Report of Temporary Comm, on Courts, 2nd Preliminary Report of Advisory Comm, on Practice and Procedure [N. Y. Legis. Doc., 1958, No. 13], p. 136). The subsequent legislative reports on the statute express only an intention to make minor changes in the language (see McKinney’s Cons. Laws of N. Y., Book 7B, CPLR, § 7503, Legis. Notes at p. 491).

On this view, the statutory policy not to permit needless interference with the expedition of the arbitration process, properly instituted, actually proceeding and not merely contemplated, is not frustrated. Moreover, the statute is not bent to promote chicane purpose to arbitrate and to sue in court at the same time, in violation of the better judicial policies affecting arbitration. Lastly, the interruption of the arbitration, if that it be, is solely in the control of those who first demanded arbitration, and then, by patent device disclosed in the pleading, sought procedurally inconsistent litigation.

The second question is whether the effort to name parties in the action and yet prevent them from becoming parties, by not serving them and opposing their appearance, is effective.

The general rule is that a person named as a defendant and not served, without more, has no right to compel prosecution of the suit against the will of the plaintiff (see, e.g., Stevenson v. Diamond Fuel Co., 198 App. Div. 345; Nosrep Corp. v. Clinton Securities Corp., 193 App. Div. 878; see, also, Tractor Training Serv. v. Crandall, 140 N. Y. S. 2d 827, 832; Matter of Graham, 39 Misc. 226, 229-230). Notably, the cases turn on whether there is any action pending and whether a named defendant can forcé an unwilling plaintiff to continue with an action he no longer wishes to pursue against anyone.2

*17It has also been held in appropriate cases that the joinder of a party not served whose presence would embarrass the continuance of the suit, either because of lack of jurisdiction in the court, or because of misjoinder, could not force himself into the action for the purpose of destroying it (see, e.g., Weidman v. Sibley, 16 App. Div. 616, in which 2 of the majority of 3 concurred in dictum on the issue involved here).

From, cases of the kind discussed the principle has been derived that a person named as a defendant but not served has no right to persist in the action, over the objection of the plaintiff, unless he has some interest to preserve (3 Carmody-Wait, New York Practice, Appearances, § 21, which provides an excellent statement of the general rule and the cases from which it has been derived). Most of the cases have involved tangible interests (e.g., Martine v. Lowenstein, 68 N. Y. 456, 458; Duer v. Fox, 27 Misc. 676; McLoughlin v. Bieber, 26 Misc. 143; Wellington v. Claason, 9 Abb. Pr. 175; see White v. White, 84 Misc. 114, 116, affd. 164 App. Div. 922). The rule, however, has never been so confined. On the contrary, it was broadly stated in Martine v. Lowenstein as follows (p. 458): A party defendant in an action may appear at any time before judgment or at any time afterward, so long as there is any proceeding in which he has any rights or interests to protect.” (See, also, Eleventh Ward Bank v. Powers, 43 App. Div. 178; 6 C. J. S., Appearances, §§ 3, 4.)

In this case, the action is fully pending and will continue and plaintiff so intends. Nor will the presence of all the named defendants embarrass or destroy the jurisdictional basis of the action or the court in which it is pending. In this case, Emma Ladin and Economy Bias Binding Co., Inc., have a vital interest in the Supreme Court action brought against them by Textile. If successfully prosecuted it would “ determine ” that she and Economy had been guilty of a corrupt tort and breach of contract, albeit without res judicata effect, if Special Term is correct. The impact of such a ‘£ determination ’ ’ upon credit and reputation would be the least of their problem. The likely effect upon the arbitration and any award would no doubt be significant, though not entirely estimable. Moreover, although Mrs. Ladin holds an agreement of indemnity from Economy Industries, Inc., and Herbert Jacobs, Economy Bias Binding Co., Inc., does not. Certainly, in this melange of liabilities in purported tort and in contract, to hold that Mrs. Ladin and Economy Bias do not have an interest in the lawsuit is to play with words and ignore the facts not only of economic but of legal life.

*18It is regrettable that discussion of the issues produces no argument justifying the duplicatory and inconsistent procedures devised by respondent but only conclusions of procedural inadequacy to prevent the result. Actually, analysis shows that there is no such inadequacy but only the fancied obstacle of secondary procedural rules, designed to implement and not to vary the basic relationship between the courts and arbitration.

Accordingly, I dissent and vote to reverse and grant the motion to stay the arbitration.

Botein, P. J., and Rabin, J., concur with S teuer, J.; Eager, J., concurs in result in opinion, in which Rabin, J., concurs, except insofar as inconsistent with majority opinion. Breitel, J., dissents in an opinion.

Order, entered on July 16, 1963, denying the stay of arbitration, affirmed, with $20 costs and disbursements to respondent.

. It is now clear enough that respondent’s behaviour has been solely to avoid the rule in the Zimmerman case. The question then becomes whether the maneuver of bringing the action later rather than before instituting arbitration should succeed where the reverse sequence must fail.

CPLR became effective September 1, 1963, The order appealed from was entered July 16, 1963.

. Tracy v. Reynolds (7 How. Prac. 327) cited by the majority, is precisely such a ease. A defendant, never served, sought to compel a reluctant plaintiff to respond to a motion to dismiss the complaint in an action he had already discontinued. (Consequently, both the holding and the language of the case are completely consistent with the view taken above.