In re the Arbitration between Greater New York Terminal, Inc. & Horn Construction Co.

In a proceeding pursuant to section 1458 of the Civil Practice Act, to stay arbitration, petitioner appeals from an order of the Supreme Court, Nassau County, dated October 27,1960, denying its motion for a stay. Respondent, a contractor, in accordance with an arbitration clause contained in “ General Conditions ” allegedly incorporated by reference into a contract known as “ The Standard Form of Agreement Between Contractor and Owner For Construction of Buildings ”, issued by the American Institute of Architects, has demanded that the parties proceed to arbitration on said respondent’s claims for (1) a balance of $232,208.50 claimed to be due on the contract, (2) extra work amounting to $191,909.36, and (3) damages in the sum of $100,823.93 for alleged interference and delays caused by petitioner. Order reversed on the law, without costs, and motion granted to the extent of staying arbitration pending the determination by the court, pursuant to sections 1450 and 1458 of the Civil Practice Act, of' the issues: (1) whether petitioner agreed to arbitration; and (2) whether the demand for arbitration was timely made. The findings of fact implicit in the opinion or decision of the Special Term are not affirmed. A question of fact is' presented as to petitioner’s awareness of the existence of the arbitration clause in the “ General Conditions ”, particularly in view of the signing or initialing of all undisputed papers. The timeliness of said respondent’s demand for arbitration is also an issue for determination by the court (Matter of Board of Educ., City School Dist., of New Rochelle v. Bernard Associates No. 3, 11 A D 2d 1038). Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.