
    John W. Rutherford, Respondent, v. Government Employees Insurance Company, Appellant.
   In a proceeding to stay arbitration sought by respondent, the appeal is from an order of the Supreme Court, Kings County, dated November 2, 1970, which denied the application. Order reversed, on the law, without costs, and proceeding remitted to the Special Term for a hearing and a new determination. The questions of fact have not been considered. We are of the opinion that a triable issue of fact is presented on the question of whether a hit and run accident occurred within the meaning of section 617 of the Insurance Law (cf. MV AIC v. Eisenberg, 18 N Y 2d 1; Matter of Braddy [Continental Ins. Co.], 29 A D 2d 523). Rabin, P. J., Hopkins, Christ, Brennan and Benjamin, JJ., concur.  