This matter came on for hearing upon defendants’ motion to dismiss the action on the grounds that the matter in dispute has not been submitted to arbitration in accordance with the agreement.

The affidavits herein show that the work has been completed and that the defendants herein have accepted possession of the building and moved into the same prior to February 15, 1957.

The defendants, in accepting possession and moving into the building, stated in a letter that “by so doing, he does not waive any of his rights under the agreement with you or any modifications or amendments thereof in connection with the work done, the work undone, and the costs thereof”, yet no dispute for arbitration was raised by either party prior to defendants’ failure to pay the balance due and the filing of .this suit for the balance due by the plaintiff.

Plaintiff’s affidavit states that on March 27, 1957, complete details of the overall costs of $41,502.25 was submitted by the plaintiff to the defendants; that subsequently the defendants’ attorneys asked for an independent examination of the said figures, and it was agreed between the plaintiff and the defendants’ attorneys that Mr. Robert G. Winckler should make an analysis of the 27 pages of data and figures submitted by plaintiff. Mr. Winckler made the agreed analysis and confirmed the data and cost submitted, with the exception of $70.00. .

After this analysis was made, as agreed between the *273parties, no payment was made and no request for arbitration was made until plaintiff filed this suit for the balance due on August 26, 1957, whereupon the defendants filed this motion to dismiss.

This court is therefore of the opinion that under these circumstances the motion must be denied and that the plaintiff is now entitled to prove his claim in court for the balance due.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the motion to dismiss be denied, and the defendants are allowed until on or before November 25, 1957, to file their answer herein.