I agree that both the order and the judgment should be affirmed, the former because a contract to arbitrate was properly found, the latter because there was no showing that one of the arbitrators was biased. I cannot agree with the additional reason that the order should be affirmed because the appellant has waived its right to protest it on appeal by participating in the arbitration.
The use of this reason reaches outside of the argument before the Special Term, violating the stipulation of the parties that the order should be reviewed together with the judgment. This stipulation was made long after the time to appeal the order had expired undoubtedly because the parties understood that *80the appellant had participated in the arbitration “ reserving all of its rights Pursuant to the stipulation’s intention, the respondent has not, on this appeal, raised the objection that participation should be deemed a waiver. Courts should observe the stipulations of parties (Matter of New York, Lackawanna & Western R.R. Co., 98 N. Y. 447) and permit them, if they choose, to “chart their own procedural course through the courts” (Stevenson v. News Syndicate Co., 302 N. Y. 81, 87).
Recognizing that ‘ ‘ stipulations as to procedural matters may be refused enforcement if they are disruptive of orderly procedure ” (2A Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2104.02), I see no inhibition against vacating a judgment on ap award, of itself not subject to attack under CPLR 7511, if the finding of the statutory condition precedent, the existence of a contract to arbitrate, had to be vacated in a contemporaneously argued appeal. Holding otherwise requires two appeals where one would do and needlessly protracts the litigation contrary to the purpose of the arbitration process (see Matter of Mole [Queen Ins. Co.], 14 A D) 2d 1).
Nunez, J. P., Capozzoli and Lane, JJ., concur with Steueb, J.; Lynch, J., concurs in an opinion.
Order and judgment, Supreme Court, New York County, entered on January 11, 1972, and April 6, 1973, respectively, unanimously affirmed. Respondent shall recover of appellants $60 costs and disbursements of these appeals.