Opinion
December 7, 1970
In this proceeding to stay arbitration, petitioner appeals from an order of the Supreme Court, Queens County, dated July 8, 1970, which denied the petition and ordered the parties to proceed to arbitration. Order reversed, with $10 costs and disbursements, and application granted to the extent that a trial on the question whether a valid agreement to arbitrate was made is directed to be held and, pending determination of that question after trial, arbitration is stayed. In this proceeding, 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 ( Matter of Princeton Rayon Corp. [ Gayley Mill Corp.], 309 N.Y. 13). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.