In re the Arbitration between Fay & Asterloid Mfg. Co.

There is no covenant in the agreement between the parties requiring appellant to continue manufacturing. It may not be compelled to arbitrate any claim arising out of its failure to do so. (Matter of Kosoff [“Jones”], 276 App. Div. 621, affd. 303 N. Y. 663.) As there is here a question of fact as to whether appellant has discontinued manufacturing, such issue should first be determined. Order unanimously modified so as to refer to an official referee the question as to whether petitioner has since May, 1952, actually discontinued manufacturing the products in question. Settle order on notice. Present — Dore, J. P., Cohn, Van Voorhis and Breitel, JJ.