(dissenting). It is difficult to understand why this appeal was undertaken. The only practical result will be a delay of nearly a year in resolving the issue. If, as contended by appellant, the closing of the garage was a permanent decision and, therefore, bona fide, it was a right specifically reserved to appellant by Article XXII of the agreement. This could easily and quickly be determined by the arbitration hearing. If, on the other hand, the closing was not permanent and a subterfuge used to dismiss the employees, as urged by respondent, then appellant directly violated the agreement, and any language in the order which would prevent such a repetition of a breach during the life of the agreement is not only' within the sound discretion of Special Term, but entirely desirable.
Both parties agree that the fact situation presents an arbitrable issue, as provided for in Article XVI of the agreement. Once there is a valid contract to arbitrate, as here, and a failure to comply with it by submission to arbitration, the only authority of the court is to order arbitration pursuant to the terms of the agreement (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76). It is axiomatic that “On a motion to compel arbitration the court may only consider the existence of an agreement to arbitrate and whether there is a dispute arising thereunder (Matter of United Culinary Bar & Grill Employees [Schiffman], 272 App. Div. 491, 494, affd. 299 N. Y. 577) ”. (Matter of Carey [Westinghouse Elec. Corp.], 6 A D 2d 582, 583.) We said in Matter of International Assn. of Machinists, AFL-CIO, Lodge 2116 (Buffalo Eclipse Corp.) (12 A D 2d 875, affd. 9 N Y 2d 946): “ The duty to arbitrate a dispute arising during the term of the agreement survives the expiration thereof ”, A fortiori, where is the error in requiring compliance “ for its duration ” ? Cases have held repeatedly that the arbitration should concern itself with the terms of the contract. The next question naturally follows — for how long? The answer seems obvious — for the duration or life of the contract.
The Supreme Court of the United States made it clear that “Arbitration is a stabilizing influence only as it serves as a vehicle for handling any and all disputes that arise under the agreement” (Steelworkers v. American Mfg. Co., 363 U. S. 564, 567). Although the First Department found that the petition did not state an arbitrable dispute in Matter of Electronic & Missile Facilities (Campbell) (20 A D 2d 891) it made this pertinent observation: “The executed written agreement providing for arbitration of ‘ Any controversy or claim arising out of or relating to this agreement or the breach thereof ’ is sufficient to include questions of continued existence of the agreement itself (see 6 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 7501.23, 7503.02).”
If the arbitrators should determine that the closing of the garage was not permanent, they would be entirely within their authority and function to direct that the garage should not be closed during the duration of the agreement unless .the closing is permanent. The appellants admit that they should have no right to close the garage unless it is a permanent closing. A decision by the arbitrators, as suggested here, would prevent a recurrence of the dispute between the parties. The order of the court requiring compliance with the agreement for the life of the agreement is, in my judgment, a salutary one. Unless we *955are prepared to say that the Special Term Justice either abused his discretion or made an improvident exercise thereof, this order should not be modified. The provisions of the order were completely justified under the facts presented to Special Term and should be affirmed.
Williams, P. J., Bastow, Noonan and Del Veeehio, JJ., concur in decision; Goldman, J., dissents and votes for affirmance in opinion.
Order modified and, as modified, affirmed, etc.