Motion by defendant to strike case from circuit calendar on the ground that it had been submitted to arbitrators.
The action is slander, and being at issue ready for trial, the parties entered into an agreement, in writing, to arbitrate, whereby they selected two persons by whose decision they agreed to abide, with the right to select a third person in case of their inability to agree. Then follows this clause : “ But in case said two arbitrators cannot agree in
The plaintiff swears that it was agreed between him and defendant, both before and after the submission was executed, that if the arbitrators did not agree, or if there was no award made within the time limited therefor, then that no advantage should be taken by either party by reason of the' submission, and that the action should proceed the same as if no submission to arbitration had been entered into.
The arbitrators named were unable to agree, declined to select a third, and refused to proceed further under the submission.
The defendant thereafter made an affidavit in the case, to obtain the examination of a witness, de bene esse, obtained an order of examination thereon, and examined the witness. In this affidavit he swears as follows: “ That this is an action now pending in the supreme court of the state.”
The plaintiff insists : first, that the submission was not intended to take the cause out of the court unless an award was made, and that it was entered into by the parties with such understanding, - and further, that it is so expressed in the submission; secondly, that if the submission was a discontinuance, still the party has waived it by swearing that the action was still pending, and taking proceedings therein.
It has been repeatedly decided that a submission of a pending suit to arbitrators is a discontinuance of the action. (18 John., 22 ; 6 Cow., 399 ; 1 Wend., 314 ; 2 id., 505 ; 12 id., 503 ; 13 id., 293 ; 15 id., 99 ; 19 id., 108 ; 1 Hill, 610 ; 3 Sand ,4; 3 Barb., 275 ; 4 id., 541; 20 id., 262 ; 11 How., 355 ; 11 Paige, 529-533 ; 2 Seld., 44-49 ; 2 Kern., 9.) The
But. the parties may so qualify the agreement of submission, as to avoid that result. They may agree that the submission shall not operate as a discontinuance without an award according to its terms, and that its effect shall be merely to produce a stay of proceedings in the action, until the submission shall become inoperative or be revoked.
Such I deem the fair construction of the agreement of submission in this- case. In certain contingencies, which here occurred, the agreement was “ to be of no effect.’ The plain construction was, that unless an award was made, the parties, should stand in the same relation as if the agreement had not been made. This, too, was the practical construction given the agreement by the defendant himself, for he swears that the cause was still pending, long after the submission was made, and proceeded in the cause by obtaining an order, and examining a witness de teñe esse.
But even if the submission operated as a discontinuance, still is was competent for the party to waive it, and he will be deemed to have waived it in case he proceeds voluntarily in the action. This was held in The People ex rel. Van Cortlandt agt. Onondaga Com. Pleas, (1 Wend., 314.)
The defendant cannot now be allowed to insist that the action is out of court, after having sworn that it is still pending, and taken steps to secure evidence to he used on the trial.
The motion must be denied, with costs.