In re the Arbitration between Pierce & Brown Buick Co.

Close, J. (dissenting).

I dissent and vote to affirm the order. Subdivision 2 of section 1458 of the Civil Practice Act is applicable to the facts here. It provides that upon a motion for a stay the moving party may put in issue the reason for its failure to comply with the arbitration agreement or to submit thereto. This subdivision further provides that unless the issue is raised by a motion to stay the arbitration, “ he [i. e., the party entitled to move] shall thereafter be barred from putting in issue the making of the contract or submission or the failure to comply therewith.” This…