Garrity v. Bagold Corp. — 267 A.D. 353

Majority

p. 353

Thomas Garrity et al., Appellants-Respondents, v. Bagold Corporation et al., Respondents-Appellants, et al., Defendants.

First Department,

January 28, 1944.

p. 354

Alexander H. Carroad of counsel (Abraham Brass and Ethel Samuels with him on the brief; Carroad <& Carroad, attorneys), for plaintiffs.

John J. Boyle of counsel (Robert R. Bruce "with him on the brief; McLanahan, Merritt, Ingraham & Christy, attorneys), for defendants.

On defendants’ appeal the order insofar as it strikes out the first and third complete defenses and the fifth and sixth partial defenses should be affirmed. (Walsh v. 515 Madison Ave. Corp., 267 App. Div. 756 ; O’Neil v. Brooklyn Savings Bank, 267 App. Div. 317 .) The fourth complete defense

p. 355

pleading an agreement to settle the disputes by arbitration and asserting that the defendant does not intend to waive the rights thereunder was also properly stricken. Plaintiffs sue on a substantive statutory right. Arbitration is a matter of remedial procedure. (Civ. Prac. Act, § 1451.)

On plaintiffs’ appeal the order insofar as it denies plaintiffs’ motion to strike out the second complete defense and the counterclaim should be reversed and the 'motion granted. (Walsh v. 515 Madison Ave. Corp., supra.)

The order appealed from should be modified accordingly and as so modified affirmed, with twenty dollars costs and disbursements to the plaintiffs.

Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ., concur.

Order unanimously modified as indicated in opinion and as so modified affirmed, with twenty dollars costs and disbursements to the plaintiffs. Settle order on notice.