
    Frank Made Sportswear, Inc., Respondent, v. Charles W. Carvin Co., Inc., Appellant.
    Supreme Court, Appellate Term, First Department,
    May 21, 1959.
    
      
      Weil, Gotshal & Manges (Gabriel Kaslow and Alan E. Bandler of counsel), for appellant.
    
      Sidney S. Levine for respondent.
   Per Curiam.

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). 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.  