In re the Arbitration between Pierce & Brown Buick Co.

Taylor, J.

Complainant in an arbitration proceeding appeals from an order staying him from proceeding with arbitration as provided in a contract of employment. The stay was granted purportedly under section 1458 of the Civil Practice Act. That section provides that where a party opposing an arbitration “ sets forth evidentiary facts raising a substantial issue ” as to the making of, or the failure to comply with, a contract to arbitrate future disputes or a submission to arbitration of an existing dispute, the issue thus raised is to be tried immediately, by the court or a jury as the opposing party may elect, and that the arbitration hearing shall be adjourned pending the determination of the motion. There is no authority for a stay unless the opposing party prevails on the issue raised by the motion. Here no question was or could have been raised as to the making of or compliance with the contract to arbitrate. Concededly it was made, and two previous arbitrations had been had under it, with parties on both sides attending without objection, putting in their proofs and submitting briefs. (See Matter of Pierce v. Brown Buick Co., Inc., 256 App. Div. 1076.) All questions of fact and law raised by respondents on this motion are determinable solely by the arbitrators. (Matter of Wilkins, ■169 N. Y. 494, 496, 497; Matter of Pine St. Realty Co., Inc., v. Coutroulos, 233 App. Div. 404, 407; leave to appeal denied, 258 N. Y. 609; Matter of Wenger & Co. v. Propper S. H. Mills, 239 id. 199, 202, 203; Matter of Hines [Ziegfeld], 222 App. Div. 543.)

The order should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Lazansky, P. J., and Johnston, J., concur; Close, J., with whom Hágarty, J., concurs, dissents in opinion and votes to affirm the order.