Involved is a question of statutory construction. On April 1, 1968, respondent’s attorneys served a demand for arbitration by mail on petitioner. It was received the following day, April 2. The demand contained the caveat requiring petitioner to move within 10 days if a stay was to be sought (CPLR 7503, subd. [c]). On April 11, petitioner applied to the court for an order to show cause why arbitration should not be stayed. The court signed the order on that day making it returnable April 22 and providing for service on April 18. The order contained a stay of the arbitration until the hearing of the motion. This chronology shows that the order to show cause was granted during the 10-day period but was not served nor made returnable until after the expiration of the period.
The applicable portions of CPLR 7503 (subd. [c]) read: “ A party may serve upon another party a notice of intention to arbitrate * * * and stating that unless the party served applies to stay the arbitration within ten days after such service he shall thereafter be precluded from objecting that a valid agreement was not made * * * Such notice shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within ten days after service upon him of the notice or he shall be so precluded. Notice *212of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. ’ ’
There can be no doubt but that an arbitration may be initiated and proceed without any participation by the court. When either party seeks relief from the court in regard to an arbitrable controversy it must be done by way of instituting a special proceeding (CPLR 7502, subd. [a]).* Concededly a special proceeding is instituted in the same manner as an action, except that the document to be served is a petition or an order to show cause rather than a summons (CPLR 304). Special Term and a majority of this court have concluded that CPLR 7503 (subd. [c]) requires the institution of a special proceeding within the 10 days or the issue of a valid contract is barred. It is beyond dispute that the section does not say so in hose verba. And the only way in which such a limitation can be inferred from what the section actually says is by equating the words “ applies ” and “ application to stay ” with “ starts a special proceeding to •stay”. I fail to understand how such a transposition can be effected.
Of all the statutes enacted and in force it is impossible to designate one which is more peculiarly the province of the lawyer than the CPLR. Written by lawyers, its directions are for all practical purposes directed to them, and to them alone. It is submitted that no lawyer regards the institution of an action or a special proceeding as an “ application ’ ’. One ‘' applies ’ ’ to the court but not to the opposing party.
. Any possible doubt as to what is meant by “ application ” should be resolved by the concluding sentence of the section. This requires service of ‘'notice of such application ’ ’. Obviously this cannot mean “ start a special proceeding ”. It presupposes a prior application, of which notice must be served. And, most significantly, the only time limit is on making the application; there is none on the service. To anyone acquainted with our practice, this is both feasible and logical. The Judge granting the order to show cause fixes the time limit for its service. This scotches the argument that arbitration, one of the admitted benefits of which is an expeditious hearing, will be frustrated by delay. Postulating an undue period for service impugns either the diligence or the probity of the Judge passing on the application and also ignores the remedial provisions to meet such an eventuality.
The merits of respondent’s objection to arbitration are not discussed. They have not been passed upon by Special Term *213and it is sufficient on this appeal to find that the objection is not frivolous and should be considered.
The order should be reversed with costs and the matter remanded to Special Term for consideration on the merits.
Botein, P. J., and Stevens, J., concur with Eager, J.; Steuer, J., dissents in opinion in which Capozzoli, J., concurs.
Judgment affirmed, with $30 costs and disbursements to respondent.
Unless there is a pending action between the parties, in which event the right to arbitrate may be raised by motion in the action.