
    (June 25, 1959)
    In the Matter of the Arbitration between Acadia Company, Inc., Appellant, and Irving Edlitz, Respondent.
   Appeal from an order of the Supreme Court at Special Term, entered April 3, 1959, in New York County, which denied a motion by petitioner for an order to stay an action instituted by respondent against petitioner in the Municipal Court of the City of New York, Borough of Manhattan, and to compel the parties to submit to arbitration.

Order affirmed, with $20 costs and disbursements to respondent.

Rabin, J.

(dissenting). I dissent and would grant petitioner’s motion to stay the action instituted by respondent in the Municipal Court. The original contract of employment was in writing and contained an arbitration clause. While the contract does contain a provision that it may not be changed except by mutual consent in writing, nevertheless, by orally extending the term of employment both parties must be deemed to have waived that provision.

The fact that in agreeing orally to continue the employment there was no discussion resulting in any change in the terms of the written contract, would indicate an intention by the parties that the same terms were to continue. And this is borne out by respondent’s assertion that I negotiated with Harry Rosen * * * for an additional period of six months Consequently it is the written contract which shows what the terms of the oral extension were to be. Any question arising, therefore, as to the latter can only be determined by reference to the written agreement.

It is immaterial whether the oral agreement be called a renewal of the original agreement or an extension thereof. The important, and I think determining fact, is that the parties agreed to continue the employment, at the same time indicating no intention of changing any of the terms of the written contract. Consequently the arbitration clause should be held binding.

The order denying plaintiff’s motion to stay the Municipal Court action and to compel arbitration should be reversed and the motion granted.

Breitel, J. P., McNally and Stevens, JJ., concur in decision; Rabin, J., dissents and votes to reverse and grant the motion in opinion, in which M. M. Frank, J., concurs.

Order affirmed, with $20 costs and disbursements to the respondent.  