
    Stainless Metals, Inc., Appellant, v. F. H. McGraw & Company, Respondent.
   In an action for the price of goods sold and delivered, a 2,000 gallon tank and accessories, plaintiff appeals from an order denying its motion for summary judgment on the first cause of action, pursuant to rule 114 of the Rules of Civil Practice. Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs, and the second cause of action severed. Timely delivery and the price of the tank are admitted. Failure to resort to arbitration is not a defense. (Civ. Prae. Act, § 1451; American Reserve Ins. Co. v. China Ins. Co., 297 H. Y. 322, 326.) There is no factual allegation in the answer or in opposition to the motion which serves to create any triable issue that any breach of contract was related to manufacture and delivery of the tank or that any damage by reason of breach was sustained. Wenzel, Schmidt and Murphy, JJ., concur. Adel, Acting P. J., and Beldock, J., dissent and vote to affirm.  