In re the Arbitration between Rosenbaum & American Surety Co. , 12 A.D.2d 886 ( 1961 )

Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs. Memorandum: The liability policy issued to the respondent herein and her deceased husband contained the usual “uninsured motorist” clause. Respondent’s husband sustained injuries, from which he subsequently died, in a collision with two cars. The respondent filed a claim under the policy with her own carrier. Upon nonpayment by that carrier, a proceeding was instituted by her, purportedly under section 1450 of the Civil Practice Act to determine whether or not one of the two alleged tort-feasors was in fact uninsured and, if found to be such, to proceed to arbitration. The insurance company contends that the determination that the injuries alleged to have been caused by an uninsured motorist must be made independent of and prior to the invocation of the arbitration clause contained in the policy. Special Term directed a jury trial of the preliminary issue of fact as to whether or not plaintiff’s decedent was struck by an uninsured automobile, and that if found in the affirmative, the parties were directed to proceed to arbitration. We are of the opinion that such procedure is unauthorized under section 1450 of the Civil Practice Act. (Appeal from order of Erie Special Term directing trial of a preliminary issue of fact.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.