Opinion
January 12, 1942.
Respondent, in a proceeding to compel arbitration, appeals from an order entered pursuant to section 1450 of the Civil Practice Act, directing trial by jury of the question whether a contract to arbitrate was made, and, if it should be found that it was made and had not been canceled, directing the parties to proceed with arbitration. Order modified on the law and the facts by striking out everything after the word "granted" in the first ordering paragraph and, as so modified, affirmed, without costs. Under section 1450 of the Civil Practice Act, only two issues may be tried in a proceeding of this kind, (a) whether an agreement to arbitrate was made, and (b) whether there was a failure or refusal to arbitrate. Appellant admits that it made the contract containing the agreement to arbitrate and that it has failed and refused to proceed to arbitration. Those issues, therefore, are not open. Every other issue in the proceeding, whether of fact or of law, and whether raised by denial or by defense, is for the arbitrators exclusively. ( Matter of Wilkins, 169 N.Y. 494, 496, 497; Matter of Pierce v. Brown Buick Co., Inc., 258 App. Div. 679, 680, and cases cited; affd., 283 N.Y. 669. ) There are no issues to be tried in this proceeding. Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.