This provision of the agreement presents a controversy which is precedent to the other issues sought to be arbitrated between the parties, and comes within the terms of the amendment (L. 1941, ch. 288) to section 1448 of the Civil Practice Act. That amendment appears to have been enacted for the express purpose of subjecting such questions to arbitration. Prior to the amendment they were not arbitrable. ( Matter of Culbertson v. Kem Playing Cards, Inc., 259 App. Div. 263, 264; Matter of American Insurance Co., 208 App. Div. 168, 170, 171; Matter of Fletcher, supra, pp. 440, 444-447.) Matter of Stern ( 285 N.Y. 239), decided five days after the effective date of this amendment, does not relate thereto and is readily distinguished.
An agreement to pay upon exchange of lands an amount to be agreed on later or, if the parties could not agree, the amount to be fixed by arbitrators to be named by the parties was held to be an agreement for appraisement or estimate rather than for arbitration. First Ecclesiastical Society v. Besse, 98 Conn. 616. An agreement to refer an incidental matter, calculation, or appraisal, the decision of which is not conclusive as to the ultimate rights of the parties, was not a "submission to arbitration" within the meaning of the New York statute. In re Culbertson, 18 N.Y.S.2d 815, 817. There, the appointment of a third arbitrator was sought. If the arbitrators are themselves experts and base their decision on their own investigations, it is limited arbitration (appraisal).
Whether the parties have by their agreement committed a particular dispute to arbitration is a question for the court, properly raised on a motion to stay arbitration. When it is determined that the agreement, either in express terms or by necessary implication, withdraws a given controversy from arbitration, the court will stay the arbitration (Matter of General Elec. Co. [United Elec., etc., Workers], 300 N.Y. 262; Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, affd. 297 N.Y. 519; Matter of Belding Heminway Co., 295 N.Y. 541; Matter of Berger [World Broadcasting System], 191 Misc. 1043, 1048, affd. 274 App. Div. 788). The foregoing authorities are peculiarly pertinent to the present situation, where the proposed arbitration partakes more of the character of an appraisal than a true arbitration (cf. Matter of Fletcher, 237 N.Y. 440, 445, and Matter of Culbertson v. Kem Playing Cards, Inc., 259 App. Div. 263). The arbitration is a step in the purchase of the stock by the respondent in the exercise of its option. The option, insofar as it affects the stock of the petitioner Edward C. Kennelly, having already been lost by lapse of time, the arbitration clause does not come into play at all.