Opinion
May 14, 1957
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. By all of its actions respecting its claim of fraud inducing the contract, including its complaint in the Massachusetts action, respondent failed to rescind the contract and elected to recognize the contract and claim damages for the fraud. Such a claim was arbitrable and should have been arbitrated under the contract. There is no basis for relieving respondent of its deliberate default in the arbitration proceeding, and there is no surviving question as to the existence of the contract. Settle order on notice.
Concur — Peck, P.J., Breitel, Botein, Rabin and Bergan, JJ.