
    In the Matter of the Arbitration between Sun Rubber Company, Appellant, and New York Credit Men’s Adjustment Bureau, Inc., Respondent.
   Order modified by staying arbitration pending determination of the action entitled “ Graham v. Eugenia Doll Co., Inc. and Gardel ” in the United States District Court for the Southern District of Hew York and, as so modified, affirmed.

Callahan, J.

(dissenting). I dissent. I see no reason for staying the arbitration proceedings until after the trial of the action in the Federal Court. The making of the contract with a provision for arbitration and the refusal to arbitrate are admitted. This leaves nothing for decision by the court on this motion (Civ. Prac. Act, §§ 1450, 1458). The claim that the contract for arbitration fell because it was contained in a sublicensing agreement, and the main license was cancelled, involves questions of fact and law that must be decided by the arbitrators (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76). There is no claim here that the contract for arbitration has been ended by the law of the land, so that its enforcement would offend our public policy (see Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467). While the question of cancellation of the main licensing agreement will be presented to the Federal Court in the action by the licensor against the respondent’s assignor, the decision in that case will not be binding on the arbitrators, who will not be compelled to follow the rule of res judicata.

Accordingly, the arbitration should be permitted to proceed.

I vote to affirm the order appealed from.

Peck, P. J., Dore and Van Voorhis, JJ., concur in decision; Callahan, J., dissents and votes to affirm, in opinion in which Cohn, J., concurs.

Order modified by staying arbitration pending determination of the action entitled “ Graham v. Eugenia Doll Co., Inc. and Gardel ” in the United States District Court for the Southern District of Hew York and, as so modified, affirmed. Ho opinion.  