In re the Arbitration between Norelli & B & H Furs, Inc.

The complaint, which was supplied by plaintiff on our request, pleads due performance of all conditions of the contract. Defendant, in its answer, denies this and specifies the respects in which it claims violations of such conditions, including wrongfully calling a strike. Obviously, therefore, the subject of the counterclaim is in issue, and if any damage has resulted from an improper calling of a strike, this claim should be litigated in the action. We need not consider theoretical questions as to waiver of arbitration rights any further than the facts of this case require. Here plaintiff necessarily tendered the issue of full performance on its part of all the terms of the contract, and the counterclaim is properly interposed.

The order should be affirmed, with $20 costs and disbursements to the respondent herein.

Peck, P. J., Glennon, Dore, Cohn and Shientag, JJ., concur.

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