In re the Arbitration between Board of Education & Frank & Lindy Plumbing & Heating, Inc. , 40 A.D.2d 717 ( 1972 )

In a proceeding (1) to stay arbitration demanded by respondent and (2) for a jury trial of a stated issue, the appeal is from an order of the Supreme Court, Dutchess County, dated October 12,1971, which denied the application, without a hearing. Order reversed, without costs, and proceeding remitted to Special Term for proceedings not inconsistent with the views set forth herein. Respondent demanded arbitration of several claims pursuant to its contract with appellant. The papers submitted to Special Term raise issues as to the existence of an agreement to arbitrate, whether Document A 201 was made a part of the contract, and respondent’s compliancé with pertinent provisions of the contract, all of which must be resolved upon a trial, which should be before a jury, since petitioner seeks such a trial, before the parties can proceed with arbitration. Martuscello, Gulotta and Benjamin, JJ., concur; Hopkins, Acting P. J., and Munder, J., dissent and vote to affirm.