
    In the Matter of the Arbitration between Motor Vehicle Accident Indemnification Corporation, Respondent, and Fred Kirby, as Guardian ad litem of James Kirby, an Infant, Appellant.
   Order, entered on September 27, 1960, staying arbitration of a dispute between petitioner and respondent under a New York automobile accident indorsement covering injuries caused in the operation of an uninsured automobile, unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellant, and the motion in all respects denied, with $10 costs. The stay was sought and granted on the basis of the pendency of an action claimed to be brought by petitioner against respondent for declaratory judgment to determine whether or not the dispute between the parties is arbitrable. It is clear, however, that, under the agreement forming a part of the indorsement and under the circumstances here, the matters in controversy between the parties are to be determined by arbitration, and there is no justification for a stay of the arbitration proceeding pending determination of the alleged declaratory judgment action. (See Matter of Royal Ind. Co. v. McMahon, 10 A D 2d 926.) Concur — Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.  