In re the Arbitrationb between Acme Cassa, Inc. & Staten Island Plaza, Inc.

Petitioner, by order to show cause returnable January 25, 1957, applied for an order appointing an impartial arbitrator. The basis of the motion was that respondent failed and refused to designate an arbitrator in violation of a provision for arbitration of controversies between them which was embraced in a contract for construction and excavation work to be performed by petitioner for respondent. Opposition to the motion was based on the ground that petitioner had waived its right to arbitration by the commencement of an action to foreclose a mechanic’s lien filed by it. While disposi*354tion of…