
    Beautiful Lady, Inc., Appellant, v. Edward Gottesman, Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    June 19, 1958.
    
      Joseph T. Keller for appellant.
    
      Samuel Wiener and Frederick R. Biehl for respondent.
   Per Curiam.

The defendant did not establish that the issue in this action is referable to arbitration; whether it is can be determined only by testimony with respect to the original transaction of March 30, the later incomplete arbitration and the agreement, if any, made during its pendency. Moreover, section 1451 of the Civil Practice Act authorizes the Municipal Court only to stay the action and dismissal was in any event improper (American Reserve Ins. Co. v. China Ins. Co., 297 N. Y. 322, 326). It is suggested that the hearing now ordered be held in conjunction with the trial, so that, if it is held the issue is not referable to arbitration, the Justice conducting the hearing may then proceed with the trial and determine all the issues.

The order should be reversed, with $10 costs, with directions to conduct a hearing on the arbitrability of the issue.

Concur — Steuer, J. P., Hofstadter and Aurelio, JJ.

Order reversed, etc.  