Opinion
May 11, 1970
In a proceeding to stay arbitration, petitioner appeals from two orders of the Supreme Court, Nassau County, the first dated December 8, 1969, which granted respondent's motion to open its default in opposing the proceeding, and the second dated January 6, 1970, which granted respondent's motion to vacate petitioner's demand for a jury trial on the issue of whether or not there was a valid agreement to arbitrate. Order dated December 8, 1969 affirmed. No opinion. Order dated January 6, 1970 reversed, on the law, and respondent's motion to vacate the demand for a jury trial denied. Appellant is awarded $10 costs and disbursements to cover both appeals. Although the CPLR does not make express provision for trial by jury of matters preliminary to arbitration, it was not the intent of the framers to thereby eliminate trial by jury where constitutionally required or desirable ( Matter of MV AIC [ Stein], 23 A.D.2d 526, 527; 8 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 7503.24; 22 Carmody Wait 2d, New York Practice, § 141:74). The contention that a party has not bound himself to arbitrate raises a factual question which entitles him to a trial by jury ( Matter of Finsilver, Still Moss v. Goldberg, Maas Co., 253 N.Y. 382, 390; Matter of Bernson Silk Mills v. Siegel Co., 256 App. Div. 617, 620). Christ, P.J., Hopkins, Brennan and Benjamin, JJ., concur. (Beldock, P.J., deceased.)