
    In the Matter of the Application of Anthony Zawilski, Appellant, v. Prahl Construction Corporation and National Surety Company, Respondents, for an Order Requiring-said Prahl Construction Corporation and National Surety Company to Submit Certain Differences between the Parties to Arbitration.
   Order denying motion to require respondents to submit to arbitration reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Service of the amended answer by appellant superseded the original answer, and failure to allege in the original answer a demand to arbitrate was corrected by including such allegation in the amended answer. While improperly pleaded, such allegation “ is no less an assertion that the defendant does not intend to abandon his rights, and so rebuts any inference that would otherwise be drawn from the mere service of the answer.” (Nagy v. Arcas Brass & Iron Co., Inc., 242 N. Y. 97.) Such delay on appellant’s part as there was in this ease does not constitute a waiver of his right to claim a settlement by way of arbitration. Lazansky, P. J., Young, Kapper, Seudder and Tompkins, JJ., concur.  