Tumim v. Palefsky

It is well settled that a clause providing for the resoluton by arbitration of disputes arising under an agreement is not jurisdictional, Morales Rivera v. Sea Land of P.R. Inc., 418 F.2d 725, 726 (1st Cir. 1969), and that the parties waive the arbitration clause if (as we infer from the appendix is the case here) they proceed to a trial of the issues in dispute without making a request for arbitration. Agoos Kid Co. v. Blumenthal Import Corp., 282 Mass. 1, 14 (1933). Commercial Iron & Metal Co. v. Bache Halsey Stuart, Inc., 581 F.2d 246, 249 (10th Cir. 1978). DeSapio v. Kohlmeyer, 35 N.Y.2d 402, 405 (1974). Zimmerman v. Cohen, 236 N.Y. 15, 19 (1923). Domke, The Law and Practice of Commercial Arbitration § 19.01, at 181 (1968). We have discovered no authority, nor can we think of any sound reason, for applying a different rule in the case of an arbitration clause appearing in a separation agreement incorporated in a divorce judgment. No other issue has been argued in this appeal.

Judgment affirmed.