(dissenting). The existence of a valid contract is a prerequisite to arbitration. The determination of the issue as to the existence of an enforcible contract is for the regular courts of justice, not for the irregular tribunal whose jurisdiction is dependent upon the validity of the agreement attacked. (Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467, 471; Finsilver, Still & Moss v. Goldberg, Maas & Co., Inc., 253 N. Y. 382, 389; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 275.) While disputes having their origin in any valid portion of the agreement might be arbitrated, the court may not compel arbitration arising out of a void provision therein. (Matter of Levinsohn Corp. [Cloak, etc., Union], 273 App. Div. 469, 475.) The provisions in the contract numbered (12) and (13) are to the effect that Crean was to receive $250 per week as salary so long as he remains a stockholder in the two corporations (even though he might hold as little as one share in each). These very provisions also set forth that for his salary he “ shall devote only such time to the business of the Corporation as he in his sole judgment shall deem necessary ”. Such a contract is wholly illusory, invalid and unenforcible as a matter of law. (Topken, Loring & Schwartz, Inc., v. Schwartz, 249 N. Y. 206, 210-211; 1 Williston on Contracts [Rev. ed.], § 104.) The written promise by Crean to devote only such time to the business of the corporation as he, Crean, in his sole judgment shall regard as necessary may not be rewritten to read that he shall devote a reasonable time to the business of the companies. A contract may not be implied when there is an express agreement covering the subject matter involved. (Grombach Productions, Inc., v. Waring, 293 N. Y. 609, 615.) If respondent has rendered services for which he has not been compensated, he has an adequate remedy in a court of law. Accordingly, I dissent and vote to reverse and grant the motion to stay the arbitration.
Peck, P. J., Van Voobhis and Shientag, JJ., concur in Per Curiam opinion; .Cohn, J., dissents and votes to reverse and grant the motion, in opinion in which Glennon, J., concurs.
Order affirmed, with $20 costs and disbursements to the respondent.