In re the Arbitration between Stroud & Motor Vehicle Accident Indemnification Corp. , 17 A.D.2d 616 ( 1962 )

Appeal from order of the Supreme Court at Special Term, entered October 2, 1961, in New York County, which denied a motion by appellant for an order staying arbitration and vacating the demand for arbitration.

Order entered on October 2, 1961, denying appellant’s motion to stay an arbitration, affirmed, with $20 costs and disbursements to petitioner-respondent. Although in Matter of Rosenbaum [Amer. Sur. Co. of N. Y.] (11 N Y 2d 310), it was held that under the MVAIC indorsement the only controversies which MVAIC may be compelled to arbitrate are the issues of fault and damages, that does not prevent the parties, by their acts, from broadening the scope of the arbitration. In this case, it appears that appellant filed an answer to the demand for arbitration, and thereafter conducted an examination before trial in the arbitration proceeding, before making the motion for a stay of arbitration. By its conduct, therefore, MVAIC waived any right to object to the scope of the arbitration. Consequently, the arbitrator may consider not only the matters of liability and damages, but also the question as to whether the exclusionary provision upon which appellant relies, precludes recovery by respondent under the facts in this case.