I concur in the affirmance of the order of Special Term. The dissent, discussing at length the matter of the alleged intent of the parties in fixing the price of $120,000 for the stock, states that “there is a complete failure of evidence to indicate that it was ever the desire of the parties to revise the figure of $120,000 ”; and that “ if there was an agreement between them, then their heirs were bound whether the agreed upon price was satisfactory to them or not.” If an inquiry with respect to. the intent of the parties in connection with the price is necessary and relevant, or if there is an ambiguity in the agreement bearing upon the right of arbitration, then a hearing would be required.
Generally, the fulfillment of conditions precedent to the right of arbitration is to be determined by the court. (See Matter of Wilaka Constr. Co. [N. Y. C. Housing Auth.], 17 N Y 2d 195, 198.) If the parties contend that there is an issue of fact as to whether such right exists, they should be afforded the opportunity of a hearing, with the right to present evidence and to examine and cross-examine witnesses. (See Matter of Princeton Rayon Corp. [Gayley Mill Corp.], 309 N. Y. 13, 14; Matter of Fineman [Norman], 282 App. Div. 937; Matter of Public Affairs Committee [Dist. 65, Retail, etc. Union], 15 A D 2d 645.)
*765But here the parties contend that there is no issue of fact hearing upon the right of arbitration; that the questions involved should be determined on the basis of the alleged unambiguous provisions of the agreement. In any event, on the undisputed facts, I conclude that the plain terms of the agreement are construable as a matter of law to require arbitration of the existing dispute as to the price. The parties agreed that the price “shall be $120,000.00 or such other sum, in accordance with the terms of this agreement as may be agreed upon and fixed in writing and subscribed or initialled by the parties hereto. During the month of November, 1955, and annually thereafter, for the term of this agreement, the First Party and the Second Party shall fix the price at which the shares of stock hereinabove described, owned by the First Party, shall be sold. Said sum so agreed upon shall be the price of the shares for the period commencing September 1, 1955. It is understood and agreed that the purchase price herein is an arbitrary figure. The actual value of the stock is its book value, as reflected on the corporate books.”
The aforesaid provisions clearly show the intent and the understanding of the parties. It was agreed that the sum of $120,000 was “ an arbitrary figure ” and that the parties “shall” yearly fix a sales price for the stock. On this basis, the parties expressly agreed that the price shall be fixed by arbitration if they “shall fail in any succeeding [yearly] period or periods [beginning in 1955] to agreed upon such price ”,
Here, as a matter of undisputed fact, the parties did “ fail ” to agree upon a price — there was no agreement as to price in any yearly period subsequent to the making of the agreement — and, thus, under the terms of the agreement, there exists the right of arbitration. I conclude that the cause of the failure to agree is immaterial. The party of the first part had the right to rely upon the plain provisions of the agreement that the price would be fixed by arbitration if there was no yearly agreement as to the price. Certainly, it* was within the contemplation of the parties that the right of arbitration would continue upon the death of the first party, and upon his death, his executor now succeeds to the right of arbitration since the parties failed to agree upon a price.