I dissent and would affirm the order on the opinion of Justice Loreto at Special Term. I would add, however, that I am in agreement with that portion of the con*598curring opinion of Justice Eager which would hold that plaintiff was bound by the arbitration provisions in the constitution and by-laws of the American Federation of Musicians.
Where I part company with Justice Eager and the majority of this court is on the ground on which they rest the denial of the application to stay the action, viz., that an individual member of a labor union has no right to compel arbitration under a collective labor agreement between a union and employer. That rule of law followed in Parker v. Borock (5 N Y 2d 156) and Matter of Soto (Goldman) (7 N Y 2d 397) has no relevancy to the case at bar. Injection of that principle in the instant case fails to recognize the true nature of the defendant’s motion— which is merely to stay the pending action—and to distinguish such an application from one to compel arbitration.
A party seeking a stay of an action does not have to move, at the same time, to compel arbitration (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7503.18; Simon v. Vogel, 9 A D 2d 63, 64). The plaintiff, who is thus stayed, may then initiate arbitration proceedings against the appropriate party. (See Guerra v. Krueger Corp., 4 Misc 2d 696.)
Reason and consistency require that if an employee is precluded from suing an employer who has a collective agreement with a union, or may not compel the employer to arbitrate, then the employer should be equally barred, in contravention of the collective agreement from asserting a claim against the employee in an action, where the employer has agreed to arbitrate such disputes with the union. It would seem that the same impediment preventing the employee to sue his employer would likewise stand in the way of a suit by the employer against the employee. All the employee is asking here is that plaintiff’s suit be stayed. He is not demanding that the employer arbitrate the dispute with him. The granting of a stay of the action would then relegate the plaintiff to resort to arbitration with the proper party to resolve the dispute if the plaintiff were still inclined to press the demand for an injunction. Under the circumstances, defendants were within their rights to seek a stay of the action.
Breitel, J. P., and Steuer, J., concur with McNally, J.; Eager, J., concurs in opinion. Valente, J., dissents in opinion.
Order, entered on June 11, 1964, modified, on the law, on the facts and in the exercise of discretion, and the motion for an injunction pendente lite granted to the extent of restraining defendant Brown from vocal phonograph recordings and restraining the corporate defendants from causing or providing *599such recordings or manufacturing, distributing or selling any vocal phonograph recordings of defendant Brown; the cross motion of defendant Brown denied; and, as so modified, the order is affirmed, with $30 costs and disbursements to appellant. Settle order on notice providing for bond.