Majority
Petitioner employer, upon its own application, procured an early trial in the Municipal Court of the same issues that are the subject matter of the proposed submission to arbitration. By thus proceeding to trial petitioner clearly made an election that is inconsistent with its present claim that the parties are obligated to proceed to arbitration, and it thereby waived the arbitration provisions of the contract _ (Matter of Zimmerman v. Cohen, 236 1ST. Y. 15). We therefore need not consider the effect of petitioner’s prior motions to vacate the warrant of attachment. The fact that a mistrial was declared in the Municipal Court does not relax the effectiveness of the waiver. Had petitioner prevailed upon that trial it obviously would have regarded such court adjudication as final and would not have sought arbitration. Order unanimously reversed, with $20 costs and disbursements to the appellants, and the motion denied. Present — Peck, P. J., Breitel, Bastow, Botein and Rabin, JJ.