
    In the Matter of the Arbitration Between Forge Mills, Inc., Petitioner, and Sam Litt, Doing Business under the Name of Sam Litt Fashions, Respondent.
    Supreme Court, Special Term, New York County,
    March 21, 1947.
    
      Katz & Spector for petitioner.
    
      George Chernoff for respondent.
   Miller, J.

Only two contentions are made in opposition to the present motion to compel arbitration. The claim of respondent that no controversy presently exists between him and petitioner might possibly possess validity if respondent had not brought petitioner into the City Court action pending against respondent by service of a third party complaint. Instead of awaiting the determination of the City Court action. against him before he commenced a separate action against .petitioner for a recovery over based upon a judgment obtained against him in the City Court action, respondent elected to bring petitioner into the City Court action so that his rights against petitioner would be determined at the same time as the rights of the plaintiff in the City Court action against respondent and as part of the same trial.

In the circumstances, the only way in which petitioner can protect itself from having respondent’s rights against it determined by a court rather than by, arbitration is to make the present motion to stay the proceedings upon the third party complaint in the City Court action and to compel arbitration. If petitioner were obliged to wait until judgment had been obtained against respondent in the City Court action there would be no interval of time within which a motion such as this could be made before respondent’s rights upon his cross complaint would be adjudicated in that action.

The only other point made by respondent is that the dispute involves plaintiff in the City Court action as well as the petitioner and respondent. Petitioner’s right to arbitration by reason of the provisions of its contract with respondent is in no way dimnished or affected by the fact that the rights of respondent vis-a-vis the plaintiff in the City Court action, are being determined in a court of law.

The motion is granted. Settle order.  