Lockhart-Mummery

This appeal is from the order of November 1, 1978, dismissing the complaint and arbitration proceeding.

Facts

The complaint was filed by appellant in superior court on June 1, 1973. Respondent sought a stipulation to stay the action pending arbitration but appellant did not consent. Respondent then moved to stay the action and compel arbitration and, over the opposition of the appellant, the motion was granted by Commissioner Gorenfeld on September 19, 1973. At the time of the hearing, respondent advised appellant in writing that it had appointed its arbitrator and paid its portion of the arbitration fee.

Respondent served interrogatories on appellant on March 18, 1974. Appellant refused to provide answers until an arbitrator was selected. Respondent informed appellant that the latter had not as yet appointed an arbitrator and that until he (appellant) does, the third neutral arbitrator could not be designated.

Three years elapsed from the date of filing the complaint without appellant attending to the appointment, payment of his portion of the arbitrator’s fee or answering interrogatories. Despite such inaction, appellant served, on June 14, 1976, two sets of…