In this proceeding to stay arbitration, a substantial issue of fact is presented as to the making of an agreement to arbitrate, which should not be determined on affidavits but after a trial in the usual manner (Civ. Prac. Act, § 1450; Matter of Siracusa v. 421-425 W. 54th St. Corp., 237 N. Y. 572). The inten *15 tian to arbitrate must be clearly expressed (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288).
The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and motion to stay arbitration granted, without prejudice to an appropriate trial of the issue of the making of an agreement to arbitrate pursuant to section 1450 of the Civil Practice Act.
The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.
Conway, Ch. J., Fuld, Froessel, Van Voorhis and Burke, JJ., concur with Dye, J.; Desmond, J., dissents and votes to affirm.
Orders reversed, etc.