
309 N.Y. 13 (1955)
In the Matter of the Arbitration between Princeton Rayon Corp., Appellant, and Gayley Mill Corporation, Respondent.
Court of Appeals of the State of New York.
Argued April 20, 1955.
Decided June 10, 1955
Martin N. Whyman, Frederick E. M. Ballon and Henry Winestine for appellant.
Melvin Liebowitz, Aaron Rosen and Harold V. Kennedy for respondent.
CONWAY, Ch. J., FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur with DYE, J.; DESMOND, J., dissents and votes to affirm.
*14DYE, J.
In this proceeding to stay arbitration, a substantial issue of fact is presented as to the making of an agreement to arbitrate, which should not be determined on affidavits but after a trial in the usual manner (Civ. Prac. Act, § 1450; Matter of Siracusa v. 421-425 W. 54th St. Corp., 237 N.Y. 572). The intention *15 to arbitrate must be clearly expressed (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N.Y. 288).
The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and motion to stay arbitration granted, without prejudice to an appropriate trial of the issue of the making of an agreement to arbitrate pursuant to section 1450 of the Civil Practice Act.
The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.
Orders reversed, etc.
