In re the Arbitration between Symphony Fabrics Corp. & Bernson Silk Mills, Inc.

Per Curiam.

The moving party, Symphony Fabrics Corp., is a converter of textiles. It purchased certain taffeta from Bernson Silk Mills. It later sold a substantial portion of these goods to Barbara Dance Frocks. The latter expressed dissatisfaction with the goods and initiated arbitration proceedings in accordance with its contract of purchase. Thereupon Symphony refused to pay Bernson and the latter also started arbitration proceedings, in accord with its contract. Symphony moved to consolidate both proceedings. Barbara Frocks joined in the request but Bernson objected. The appeal here is from the denial of the application.

It cannot be disputed that arbitration is a special proceeding and hence arbitration proceedings may be consolidated (Civ. Prac. Act, § 96; Matter of Adam Cons. Ind. [Miller Bros. Hat Co.] 6 A D 2d 515). Consolidation must be denied if a substantial right of any party is prejudiced; otherwise, whether to grant the relief depends on an exercise of discretion.

We believe that a fair and equitable result would be more likely to be reached if both of these proceedings were tried together. In addition, there would undoubtedly be an earlier resolution of all controversies at a lesser expense than if the proceedings were separate. The controversies arise out of a very common commercial situation and the respective claims should present no difficulties to the arbitrators by virtue of the fact that they were being heard together.

We recognize that where jurisdiction is conferred by contract any party has the right to have his controversy tried by the forum he has contracted for, and he cannot be compelled to litigate before any other (Matter of Stewart Tenants Corp. [Diesel Constr. Co.], 16 A D 2d 895). In this matter both contracts call for arbitration before the American Arbitration Association. The rules of this association provide that the association submit a panel of proposed arbitrators to each party and that each party has certain privileges in regard to striking names and indicating preferences. The association then appoints the arbitrators in the light of the actions taken in regard to the panel by the parties. It is conceivable that, as a consequence of consolidation, the review of the panel by three parties instead of two would result in the appointment of different individuals as arbitrators. Similarity of interest (even though the interest is not identical) among any two of the parties might have the effect of giving one interest two opportunities to edit the list as against the other interest’s single opportunity. Circumstances would in each instance dictate whether a substantial right was being prejudiced or whether suitable provisions could be made to avoid prejudice — or whether such provisions were called for.

Here we believe that any possible prejudice to Bernson, the party objecting to the consolidation, can be obviated by restricting the challenges of the other two parties. It appears that in the arbitration proceeding initiated by Bernson, both Bernson and Symphony have made their designations from the panel of proposed arbitrators submitted by the American Arbitration Association. If respondent Barbara Dance Frocks joins in the designations made by petitioner, such a restriction will be accomplished. If Barbara Dance Frocks so stipulates, the order will be reversed and the motion to consolidate the proceedings granted, with costs. Failing the filing of such a stipulation within 10 days of the date of the filing of this decision, the order will be affirmed, without costs.