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Elias Simadiris, Suing on Behalf of Himself and All Other Banquet Waiters in the Employ of Hotel Waldorf Astoria Corporation, Similarly Situated v. Hotel Waldorf Astoria Corporation, and New York Hotel Trades Council, A. F. of L., Intervener
Opinions in this case
- Majority
- Dissent — Peck
Memorandum by the Court. The defendant-respondent waived its right to demand arbitration by the steps which it took in defending the action at law. Such conduct amounted to an election of remedies (Matter of Zimmerman [Cohen], 236 N. Y. 15; Matter of Nathan Associates, 268 N. Y. 692). The provisions of the collective bargaining agreement against waiver would not 666 prevent such election.
The present action is brought on behalf of employees to enforce rights as third-party beneficiaries of contracts between the defendant and patrons or guests of its hotel. It is not based on the collective bargaining agreement. The situation in this case would not appear to present a proper case for intervention by a union, which is attempting to defeat the fundamental basis of the suit.
The union is not a person adversely affected by a judgment in favor of plaintiff or otherwise a party in interest, and nothing would be gained by allowing it to intervene in the action. Orders reversed, with $20 costs and disbursements to the appellant, and the motions denied.