There is presented by this record an issue of fact as to whether the petitioner unconditionally agreed to purchase the merchandise covered by .the sales note in which the arbitration clause is incorporated. The issue may not be decided without a trial. (Civ. Prac. Act, § 1458, subd. 2.) The order entered November 19, 1945, appealed from should be modified so as to provide that the respondents-appellants are temporarily enjoined from proceeding with the arbitration pending determination of the issue of the existence of a •contract providing for arbitration, and as so modified affirmed, without costs.
The order entered December 8, 1945, should be affirmed, without costs.
Martin, P. J., Townley, Glennon, Callahan and Peck, JJ., concur.
Order entered November 19, 1945, unanimously modified so as to provide that the respondents-appellants are temporarily enjoined from proceeding with the arbitration pending determination of the issue of the existence of a contract providing for arbitration, and as so modified affirmed, without costs. Order .entered December 8, 1945, unanimously affirmed, without costs. Settle order on notice.