| N.Y. App. Term. | May 21, 1959
While the court below decided correctly that
there is an issue of fact with respect to the making of an agreement to arbitrate, it was error to postpone disposition of that issue until the trial of the main action. An agreement to arbitrate is not a defense to the action but only ground for staying it (American Reserve Ins. Co. v. China Ins. Co., 297 N.Y. 822" date_filed="1948-03-05" court="NY" case_name="Eisemann v. Fidelity Deposit Company of Maryland">297 N. Y. 822). Since section 1450 of the Civil Practice Act specifically provides that when, as here, a substantial issue as to the making of a contract to arbitrate arises, the court or a judge “ shall proceed immediately to the trial thereof ’ ’, the court should have ordered the immediate trial of the issue.
The order should be modified to direct the immediate trial of the issue whether the parties entered into a contract to arbitrate, and as modified affirmed, without costs.
Concur — Hoestadter, J. P., Hecht and Aurelio, JJ.
Order modified, etc.