
    In the Matter of the Arbitration between Unicon Management Corp., Appellant, and Pavcrete Construction Corporation, Respondent.
   Order, entered on April 6, 1965, denying petitioner’s motion under CPLR 7503 (subd. [b]) to enjoin arbitration permanently or alternatively to stay arbitration pending conclusion of a United States District Court action, which order stayed respondent Paverete from proceeding in the United States District Court until completion of arbitration, unanimously affirmed, with $30 costs and disbursements to respondent-respondent. By commencing a Miller Act action in the United States District Court for the Northern District of Ohio, after commencing arbitration, Paverete may well have waived its contract right to have the very issues raised in that action determined by arbitration (see Matter of Ladin [D. á C. Textile], 20 A D 2d 8, 9, affd. 14 N V 2d 781). Moreover, Unicon’s conduct in inviting Paverete to use the discovery procedures available in the Federal court may constitute an acceptance of Pavcrete’s implied offer to litigate instead of arbitrate (cf. Matter of Zimmerman v. Cohen, 236 N. Y. 15, 19). Unicon, did, however, participate in the arbitration, even subsequent to Pavcrete’s commencement of the Federal court action, when it wrote a letter to the arbitrator, asserting the irrelevancy of certain material sought by Paverete, and contesting the arbitrator’s right to issue a subpoena therefor. Such participation in the arbitration, with knowledge of the pending Federal action, disqualified Unicon from seeking a stay of arbitration (CPLR 7503, subd. [b]). The propriety of the stay of the Federal court proceedings, although doubtful, was not briefed on appeal (see, generally, 14 Am. Jur., Courts, §§ 258, 259; 28 Am. Jur., Injunctions, § 209). The parties may at any time choose to dissolve the stay by stipulation or by application to Special Term. Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.  